Garrison v. New Fashion Pork LLP

• Decision Date: 30 June 2022
• Docket Number: 21-0652
• Citation: 977 N.W.2d 67
• Parties: Gordon Berg GARRISON, Appellant, v. NEW FASHION PORK LLP and BWT Holdings LLLP, Appellees.
• Court: Iowa Supreme Court

977 N.W.2d 67

Gordon Berg GARRISON, Appellant,
v.
NEW FASHION PORK LLP and BWT Holdings LLLP, Appellees.

No. 21-0652

Supreme Court of Iowa.

Submitted March 23, 2022
Filed June 30, 2022

Wallace L. Taylor (argued), Cedar Rapids, and David A. O'Brien, Dave O'Brien Law, Cedar Rapids, for appellant.

James W. White (argued), James L. Pray, and Jennifer E. Lindberg of Brown, Winick, Graves, Gross & Baskerville, P.L.C., Des Moines, for appellees.

Eldon L. McAfee and Julie Vyskocil of Brick Gentry, P.C., West Des Moines, for amicus curiae Iowa Pork Producers Association.

Christina L. Gruenhagen of Parker & Geadelmann, P.L.L.C., West Des Moines, for amicus curiae Iowa Farm Bureau Federation.

Waterman, J., delivered the opinion of the court, in which Christensen, C.J., and Mansfield and McDermott, JJ., joined. Mansfield, J., filed a concurring opinion, in which Waterman, J., joined. Appel, J., filed a dissenting opinion, in which Oxley, J., joined. McDonald, J., filed a dissenting opinion, in which Oxley, J., joined.

WATERMAN, Justice.

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In this appeal, the defendants and amici curiae renew prior invitations to overrule Gacke v. Pork Xtra, L.L.C. ’s controversial three-part test under the inalienable rights clause, article I, section 1 of the Iowa Constitution. 684 N.W.2d 168, 177–79 (Iowa 2004). Gacke created the test to adjudicate constitutional challenges to the statutory immunity enacted in our state's "right-to-farm" legislation, Iowa Code section 657.11 (2020).

The plaintiff in this case sued the neighboring confined animal feeding operation (CAFO) twice. The first lawsuit was in federal court and was dismissed on summary judgment for lack of expert testimony supporting the plaintiff's claims that the CAFO's manure runoff caused excessive nitrate levels in an ongoing violation of federal law. The federal court declined supplemental jurisdiction over his state law claims. The plaintiff then refiled his lawsuit in Iowa district court alleging common law nuisance, trespass, and drainage law violations. The CAFO defendants moved for summary judgment based on the statutory immunity in Iowa Code section 657.11 and the plaintiff's lack of evidence to establish he qualified for an exception to the immunity or prove causation or damages. The plaintiff, relying on Gacke , argued section 657.11 as applied to him is unconstitutional under Iowa's inalienable rights clause.

The district court rejected the plaintiff's constitutional challenge after determining he failed to satisfy the three-part test in Gacke because his own CAFO had benefited from the immunity. The court then granted the defendants’ motion for summary judgment because the plaintiff lacked expert testimony or other evidence to support any exception to the statutory immunity defense or to prove causation or damages. We retained the plaintiff's appeal.

On our review, for the reasons explained below, we affirm the summary judgment. We overrule Gacke ’s three-part test and apply rational basis review to reject the plaintiff's constitutional challenge to section 657.11 under the inalienable rights clause. We conclude the plaintiff failed to preserve error on his takings claim under article I, section 18 of the Iowa Constitution and failed to generate a question of fact precluding summary judgment on statutory nuisance immunity or causation for his trespass and drainage claims. We need not and do not reach the plaintiff's constitutional challenge to the damages limitations in section 657.11A(3).

I. Background Facts and Proceedings.

In 1972, Gordon Garrison purchased approximately 300 acres of farmland in Emmet County. He lives on the property in a home built in 1999. Garrison has a bachelor's

977 N.W.2d 73

of science in agricultural engineering from Iowa State University. From the 1970s to 2018, he raised sheep on his property. Garrison at one point owned a 500-head ewe flock and could have over 1,000 animals on his property each birthing season. The sheep were kept in a barn most of the winter. After the 1980s, the size of his flock began to decrease. Garrison initially disposed of the sheep manure by spreading it on his fields. He later transitioned to using a manure compost pile, which remains on his property.¹ Some of his land continues to be farmed, but most of his acreage "is being cared for in restoration of the ‘Prairie Pothole’ ecology that was indigenous to northwest Iowa."

Garrison, with his family, owns and leases another 260 acres in Kossuth County and 360 acres in Wright County. Garrison had a handshake agreement allowing the renter in Kossuth County to apply manure to the fields at agronomic rates. The renter in Wright County applied manure to fields without Garrison's permission. Neither operation generated any nuisance claims by neighbors.

In December of 2015, New Fashion Pork (NFP) started operating a CAFO. The CAFO is uphill and adjacent to Garrison's property. NFP's subsidiary, BWT Holdings, owns additional land adjacent to Garrison's property for disposal of manure. The confinement building is approximately a half-mile away from Garrison's property line and is permitted to hold 4,400 to 8,800 hogs depending on their weight. The defendants put pattern tiling in the BWT property, which Garrison claims led to substantially more drainage flowing to his property.

According to Garrison, in the fall of 2016, NFP's "manure application was done when the field was saturated with water so the field could not absorb the manure and the manure discharged to [his] property." In December 2018, NFP applied manure to frozen ground in violation of state regulations. The Iowa Department of Natural Resources entered a consent order under which the defendants paid an administrative penalty of $4,800 for that violation.

From 2016 to 2020, Garrison documented the times on his property that he smelled the CAFO's odor. He estimated that he could smell its odor more than 100 days of the year, sometimes all day. The odor interferes with his enjoyment of working outdoors, going on walks around his property, and his sleep. His son confirmed the odor can be very pervasive depending on the wind direction.

The defendants undertook several measures to ameliorate the odor. NFP adjusted the placement of pit fans. In August of 2016, NFP installed an electrostatic precipitating fence on the side of the confinement building facing Garrison's property. That fence was the first of its kind on a hog farm.

Garrison took water samples from a stream that flows through his land from BWT's property. From 2001 to 2013, Garrison took thirty-two samples at irregular intervals in accordance with his training from the IOWATER program. From April 15, 2016 to June 20, 2019, Garrison took water samples from the same stream at more regular intervals and sent the samples to be tested by the Iowa State Hygienic Laboratory. According to Garrison, "[a]ll the samples, with one exception when chicken litter was applied to the Sanderson

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field, had nitrate levels of 10 ppm or less." The samples tested by the Iowa State laboratory have on average higher nitrate levels than Garrison's samples collected before 2013. The Iowa State laboratory samples show a substantial, consistent decrease in nitrate levels from 2016 to 2019 and do not show a spike in nitrate levels that would correlate with NFP's manure spreading in 2016 or 2018.

On December 20, 2018, three years after the CAFO began operating, Garrison filed a lawsuit against NFP and BWT in the United States District Court for the Northern District of Iowa. Garrison alleged the CAFO violated the Resource Conservation and Recovery Act (RCRA), the Clean Water Act (CWA), and multiple state laws. The defendants moved for summary judgment. The federal court found that Garrison relied exclusively on his water tests to attempt to "create a genuine issue of material fact about the ongoing nature of defendants’ actions," the "water tests do not show a pattern of ongoing violations," the nitrate levels do not correlate with annual or biannual manure applications, and the 2016 and 2018 incidents are past (not ongoing) violations. Garrison v. New Fashion Pork LLP , 449 F. Supp. 3d 863, 873–74 (N.D. Iowa 2020). The federal court elaborated:

[P]laintiff has not designated any expert to testify about the nitrate levels or specifically about the issue of causation. Even if the Court allows each of plaintiff's proposed experts’ testimony in its entirety, plaintiff cannot link the nitrate levels in the water tests to misapplication of the manure. Plaintiff's proposed experts discuss manure management plans and soil drainage issues, but the Court finds no expert testimony in the record linking defendants’ alleged overapplication or misapplication of manure to higher levels of nitrates in plaintiff's water tests. Although taking water samples and testing them for nitrates may not require scientific or specialized skill, interpreting the results does require expert analysis. Here, plaintiff has provided no expert testimony, admissible or not, tying defendants’ alleged misapplications or overapplications of manure to the nitrate levels in the stream on plaintiff's property. Plaintiff has also not established a baseline to show that the nitrate levels are occurring at a higher rate than before defendants started spreading manure or at a higher rate than would be expected to naturally occur. Without an established baseline or metric there is no evidence that the nitrate levels are occurring at a higher rate attributed to runoff from defendants’ fields.

Id. (record citation omitted). Noting "RCRA and the CWA do not support citizen suits for wholly past violations," id. at 874, the federal court granted the defendants’ motion for summary judgment dismissing Garrison's federal claims because there was no "genuine issue of material fact as to any current and ongoing violations of RCRA and the CWA," and declined to exercise supplemental jurisdiction over Garrison's state law nuisance...