Brakke v. Iowa Dep't of Natural Res.

• Citation: 897 N.W.2d 522
• Decision Date: 16 June 2017
• Docket Number: No. 15-0328,15-0328
• Parties: Tom BRAKKE and Rhonda Brakke d/b/a/ Pine Ridge Hunting Lodge, and McBra, Inc., Appellees, v. IOWA DEPARTMENT OF NATURAL RESOURCES and Iowa Natural Resource Commission, Appellants.
• Court: United States State Supreme Court of Iowa

897 N.W.2d 522

Tom BRAKKE and Rhonda Brakke d/b/a/ Pine Ridge Hunting Lodge, and McBra, Inc., Appellees,

v.IOWA DEPARTMENT OF NATURAL RESOURCES and Iowa Natural Resource Commission, Appellants.

No. 15-0328

Supreme Court of Iowa.

Filed June 16, 2017

Thomas J. Miller, Attorney General, David L. Dorff, Assistant Attorney General, for appellants.

Rebecca A. Brommel and Douglas E. Gross of Brown, Winick, Graves, Gross, Baskerville and Schoenebaum, P.L.C., Des Moines, for appellees.

APPEL, Justice.

This case presents a challenge by landowners to an emergency order issued by the Iowa Department of Natural Resources (DNR) to order the landowners to quarantine land formerly used as a whitetail deer preserve for five years after whitetail deer harvested on the property tested positive for chronic wasting disease

, or CWD. The DNR emergency order required the landowners to repair and maintain an electric fence around the property for the quarantine period.

The landowners challenged the DNR emergency order in an administrative appeal under the Iowa Administrative Procedures Act, Iowa Code section 17A.19(10) (2013). An administrative law judge issued a proposed decision, finding the DNR lacked the statutory authority to issue the emergency order imposing a quarantine on the land. Upon review by the Iowa Natural Resources Commission (NRC), the NRC reversed the ruling, finding instead that the DNR had sufficient statutory authority to support the order. The landowners appealed.

The district court reversed the NRC. The court held the DNR's emergency order was irrational, illogical, and wholly unjustifiable under Iowa Code section 17A.19(10)(l ) because the DNR was acting outside the legislature's grant of authority. The court, however, rejected the landowners' argument that the DNR's emergency order amounted to a compensable taking under the United States and Iowa Constitutions. Upon entering its judgment, the court also refused to reopen the record to allow the DNR to present additional evidence that the landowners received certain indemnity payments from the United States Department of Agriculture (USDA).

The DNR appealed, and the landowners cross-appealed. For the reasons expressed below, we conclude the DNR lacked statutory authority to issue an emergency order that imposed a quarantine on land used as a whitetail deer-hunting preserve. We also conclude the action of the DNR did not amount to an impermissible taking of property under the United States Constitution or the Iowa Constitution. In light of these rulings, we conclude the DNR's challenge of the district court's failure to reopen the record to receive additional evidence is moot. We therefore affirm the judgment of the district court.

I. Factual and Procedural Background.

A. Introduction: Positive CWD Test from Deer Harvested at the Pine Ridge Hunting Lodge. In the 1990s, Tom and Rhonda Brakke (the Brakkes) established a whitetail deer-breeding farm in Clear Lake, Iowa. In 2005, they bought Pine Ridge Hunting Lodge (Pine Ridge) in Davis County, Iowa, for $575,000.¹ The Brakkes' purpose in purchasing the hunting lodge was to provide an "end market" for the deer they raised on the Clear Lake property. After the purchase, the Brakkes spent an additional $200,000 to improve the property by constructing a cabin and investing in additional fencing, including a fence to separate the northern and southern halves of the property, which prevented deer from the north side from entering the south side of the preserve and vice versa.

The property was licensed as a whitetail deer-hunting preserve under Iowa Code chapter 484C. The majority of the deer the Brakkes placed at Pine Ridge came from their Clear Lake breeding farm.

Whitetail deer are susceptible to CWD. CWD is a type of transmissible spongiform encephalopathy

, also known as prion disease. The DNR seeks to prevent the spread of CWD through voluntary agreements with breeding farms and statutory regulation of whitetail deer-hunting preserves. See Iowa Code § 484C.12.

Originally, the Brakkes participated in a voluntary CWD program at their Clear Lake breeding farm so they could transport and sell their deer to others. With the success of their hunting operations at Pine Ridge, in 2012 the Brakkes ceased enrollment of the Clear Lake breeding farm in the voluntary CWD program because they were no longer in the business of selling deer to other operations. The Brakkes, however, continued to submit samples for testing from all deer harvested from Pine Ridge as required by Iowa Code section 484C.12.

On June 16, the DNR received notification from a CWD testing lab that a deer from Pine Ridge tested positive for CWD. The CWD-positive deer originally came from the Brakkes' breeding farm in Clear Lake. After confirming the diagnosis, the DNR notified the Brakkes on July 19. Prior to this case, no captive or wild deer had ever tested positive for CWD in Iowa.

Under Iowa law, the Iowa Department of Agriculture and Land Stewardship (IDALS) regulates whitetail deer on deer farms, while the DNR regulates deer on whitetail deer-hunting preserves. Iowa Code § 170.1A(2) ; id. § 484C.2(2). On August 29, IDALS received permission from the Brakkes to kill and test some deer at the Clear Lake farm. One deer at the Clear Lake farm tested positive for CWD. At some point, IDALS issued a notice of quarantine to the Brakkes for the Clear Lake farm.

B. September 7, 2012 Agreement. On September 7, the Brakkes and the DNR signed an "Agreement for Chronic Wasting Disease

Recovery Plan at Pine Ridge Hunting Lodge" (Agreement). Under the Agreement, the Brakkes were allowed to carry out planned hunts at Pine Ridge scheduled between September 8, 2012, and December 25, 2012. The Brakkes, however, were required to install jointly with the DNR an electronic fence inside the perimeter of the existing fence surrounding Pine Ridge, with the costs split evenly between the DNR and Pine Ridge. After construction of the electric fence, the Brakkes were solely responsible for fence repair and maintenance. DNR staff was to conduct weekly perimeter and fence inspections, with all repairs identified by DNR staff to be submitted to the Brakkes in writing and completed by the Brakkes within twenty-four hours.

Further, the Agreement provided that Pine Ridge be completely depopulated of all deer and elk no later than January 31, 2013. All animals were to be tested for CWD and disposed of in accordance with applicable regulations at the Brakkes' cost. Once the depopulation of Pine Ridge was complete, the Brakkes, at their expense, agreed to clean and disinfect the facility in compliance with DNR rules. Finally, the parties agreed to a future operational plan to "be developed in conjunction with the DNR after depopulation was complete." The term of the Agreement was from the date of execution until January 31, 2013.

One additional deer harvested at Pine Ridge in December 2012 tested positive for CWD. After the conclusion of the hunts, Pine Ridge depopulated all its deer. In April 2013, all feeders were disinfected with bleach, excess feed was buried, and all the terms of the Agreement were fulfilled with one exception—the parties did not reach an agreement on a "future operational plan" after depopulation of the animals.

C. April 26, 2013 Letter. On April 26, the Brakkes wrote a letter to the DNR. In the letter, the Brakkes stated, "As you know, the area utilized by Pine Ridge Hunting Lodge as a hunting preserve is subject to a five (5) year quarantine." The letter noted that the Brakkes had "complied with all requirements of the September 7, 2012 agreement." The letter announced that if no response were received from the DNR, the Brakkes would regard all requirements of the Agreement as satisfied. The Brakkes further announced they would no longer be operating Pine Ridge as a whitetail deer-hunting preserve.

By June 5, the DNR discovered the gates at Pine Ridge were standing open and that portions of the fence were damaged or had been removed.

D. The Emergency Order. On June 6, the DNR issued an emergency order to require the Brakkes to stop their deconstruction of the fence surrounding Pine Ridge and to immediately restore the portions of the fence that were damaged. The emergency order also required the Brakkes to close and keep closed all of the gates and to authorize the DNR to access Pine Ridge for a limited duration in order to kill any deer that may be present on the property. Finally, the emergency order required the Brakkes submit and agree to execute a plan designed to ensure that CWD be quarantined within, and not spread beyond, Pine Ridge.

On June 7, the Brakkes closed the gates at Pine Ridge and repaired the fence. On June 11, however, wild deer were seen inside the fence.

E. The Administrative Hearing and the Natural Resource Commission Appeal.

1. Introduction . The Brakkes appealed the emergency order on June 25. In the letter initiating the appeal, the Brakkes claimed the emergency order violated their United States and Iowa constitutional rights and other property rights because (1) the DNR lacked jurisdiction over Pine Ridge once it was no longer a hunting preserve; (2) the terms of the quarantine and emergency order without compensation were an unconstitutional taking; and (3) the DNR's actions were arbitrary, capricious, and an abuse of discretion.

The Brakkes cited six reasons why the DNR's actions were arbitrary and capricious. First, they claimed only a limited number of deer species may contract CWD and CWD does not meaningfully limit the growth of the species. Second, the Brakkes asserted that CWD is not highly infectious and there is a reservoir of CWD in the wild that cannot be fully eliminated. Third, the Brakkes claimed there are more harmful diseases which affect deer for which the DNR does not impose such drastic measures. Fourth, the Brakkes asserted the emergency order would not materially affect the spread of CWD. Fifth, the Brakkes claimed the DNR previously...