Iowa Citizens for Cmty. Improvement & Food & Water Watch v. State, No. 19-1644

CourtUnited States State Supreme Court of Iowa
Writing for the CourtMANSFIELD, Justice.
PartiesIOWA CITIZENS FOR COMMUNITY IMPROVEMENT and FOOD & WATER WATCH, Appellees, v. STATE OF IOWA; DEPARTMENT OF NATURAL RESOURCES; BRUCE TRAUTMAN, In His Official Capacity as Acting Director of the Department of Natural Resources; ENVIRONMENTAL PROTECTION COMMISSION; MARY BOOTE, NANCY COUSER, LISA GOCHENOUR, REBECCA GUINN, HOWARD HILL, HAROLD HOMMES, RALPH LENTS, BOB SINCLAIR, and JOE RIDING, In Their Official Capacities as Commissioners of the Environmental Protection Commission; NATURAL RESOURCE COMMISSION; MARCUS BRANSTAD, RICHARD FRANCISCO, LAURA HOMMEL, TOM PRICKETT, PHYLLIS REIMER, DENNIS SCHEMMEL, and MARGO UNDERWOOD, In Their Official Capacities as Commissioners of the Natural Resource Commission; DEPARTMENT OF AGRICULTURAL AND LAND STEWARDSHIP; and MICHAEL NAIG, In His Official Capacity as Secretary of Agriculture, Appellants.
Docket NumberNo. 19-1644
Decision Date18 June 2021

IOWA CITIZENS FOR COMMUNITY IMPROVEMENT
and FOOD & WATER WATCH, Appellees,
v.
STATE OF IOWA; DEPARTMENT OF NATURAL RESOURCES;
BRUCE TRAUTMAN, In His Official Capacity as Acting Director of the
Department of Natural Resources; ENVIRONMENTAL PROTECTION COMMISSION;
MARY BOOTE, NANCY COUSER, LISA GOCHENOUR,
REBECCA GUINN, HOWARD HILL, HAROLD HOMMES,
RALPH LENTS, BOB SINCLAIR, and JOE RIDING,
In Their Official Capacities as Commissioners of the Environmental Protection Commission;
NATURAL RESOURCE COMMISSION; MARCUS BRANSTAD,
RICHARD FRANCISCO, LAURA HOMMEL, TOM PRICKETT,
PHYLLIS REIMER, DENNIS SCHEMMEL, and MARGO UNDERWOOD,
In Their Official Capacities as Commissioners of the Natural Resource Commission;
DEPARTMENT OF AGRICULTURAL AND LAND STEWARDSHIP;
and MICHAEL NAIG, In His Official Capacity as Secretary of Agriculture, Appellants.

No. 19-1644

SUPREME COURT OF IOWA

Submitted December 16, 2020
June 18, 2021


Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.

The State of Iowa and state agencies and officials seek interlocutory review of a district court order denying their motion to dismiss an action brought by two nonprofit groups under the public trust doctrine. REVERSED AND REMANDED.

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

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which Oxley, J., joined. Oxley, J., filed a dissenting opinion, in which Appel, J., joined.

Thomas J. Miller, Attorney General, Jeffrey S. Thompson (argued), Solicitor General, Jacob J. Larson, David S. Steward, Eric M. Dirth, and Thomas J. Ogden, Assistant Attorneys General, for appellants.

Brent Newell (argued) and Kellan R. Smith of Public Justice, P.C., Oakland, California, Roxanne Barton Conlin and Devin Kelly of Roxanne Conlin & Associates, P.C., Des Moines, Tarah Heinzen of Food & Water Watch, Portland, Oregon, and Channing Dutton of Lawyer, Lawyer, Dutton, and Drake, LLP, West Des Moines, for appellees.

James L. Pray, Jordan D. Nickerson, and Tess L. Pocock of Brown, Winick, Graves, Gross, Baskerville and Schoenebaum, PLC, Des Moines for amicus curiae Agricultural Legal Defense Fund.

Tucker F. Levis and Christina L. Gruenhagen of Parker & Geadelmann, P.L.L.C., West Des Moines; and Eldon McAfee of Brick Gentry P.C., West Des Moines, for amicus curiae Iowa Cattlemen's Association, Iowa Corn Growers Association, Iowa Farm Bureau Federation, Iowa Pork Producers Association, Iowa Poultry Association, Iowa Soybean Association, Iowa State Dairy Association, and Iowa Turkey Federation.

Paige Fiedler of Fiedler Law Firm, Johnston; and Joel R. Waltzer and Robert B. Wiygul of Waltzer Wiygul & Garside, New Orleans, Louisiana, for amicus curiae Gulf Organized Fisheries in Solidarity and Hope, Inc., and Mississippi Commercial Fisheries United, Inc.

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Richard A. Malm and John E. Lande of Dickinson, Mackaman, Tyler & Hagen, P.C., Des Moines, for amicus curiae Board of Water Works Trustees of the City of Des Moines, Iowa.

Chad A. Swanson of Dutton, Daniels, Hines, Kalkhoff, Cook & Swanson, P.L.C., Waterloo, and Paige M. Tomaselli of The Law Office of Paige Tomaselli, Richmond, California, for amicus curiae Iowa Farmers Union and Farm Aid.

Neil Hamilton, Drake University Law School, Des Moines, for amicus curiae Drake Law Professors Neil Hamilton, Allan Vestal, Mark Kende, and Jerry Anderson.

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MANSFIELD, Justice.

Two social justice organizations have brought this case against the State of Iowa, four different state agencies, and a number of state officials. Relying on the public trust doctrine, under which the State is the "trustee" of the State's navigable waters, they seek to force the defendants to enact legislation that will compel Iowa farmers to take steps that will have the effect of significantly reducing levels of nitrogen and phosphorus in the Raccoon River. This, they allege, will improve their members' aesthetic and recreational use of the river and bring about reductions in their water bills.

The defendants moved to dismiss the petition based on lack of standing, nonjusticiability, and failure to exhaust administrative remedies. The district court denied the motion. On appeal, we now conclude that the motion should have been granted on the first two grounds. In our view, the attenuated causation theory of the petition is not enough to establish that the plaintiffs' members have suffered a concrete injury at the hands of the defendants that a favorable court decision is likely to redress. And, we believe the plaintiffs' effort to repurpose the historically narrow public trust doctrine to solve a complex environmental problem presents a nonjusticiable political question. Therefore, we reverse the district court's order and remand with instructions to dismiss the petition.

I. Factual and Procedural Background.

A. The Nature of the Litigation and the Parties. This is an action for declaratory relief and to compel the State of Iowa to adopt "a Raccoon River remedial plan with mandatory agricultural water pollution controls."

The plaintiffs are Iowa Citizens for Community Improvement (ICCI) and Food and Water Watch (FWW). ICCI has 5100 members, of whom

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2404 reside in Polk County. Many of those members recreate in, on, or around the Raccoon River in Polk County. ICCI's organizational priorities include "fighting factory farms and campaigning to clean up Iowa's polluted waterways, as well as advancing worker justice, racial justice, and immigrants' rights."

FWW "champions healthy food and clean water for all by standing up to corporations that put profits before people and advocating for a democracy that improves people's lives and protects the environment." FWW has 18,400 "members and supporters" in Iowa, and 2804 "members and supporters" in Polk County.

The defendants are the State of Iowa, the Iowa Department of Natural Resources (DNR), the director of DNR, the Environmental Protection Commission, the members of the Environmental Protection Commission, the Natural Resource Commission, the members of the Natural Resource Commission, the Iowa Department of Agriculture and Land Stewardship, and the secretary of agriculture. Thus, the petition names twenty-three separate defendants.

B. Factual Allegations in the Petition. The petition alleges that Iowa leads the nation in corn and pork production, and is one of the leaders in soybean production. But according to the petition, this food production comes at a cost. Iowa farmers "apply vast amounts of fertilizer to grow corn and soybeans." They also apply manure from animal feeding operations to corn and soybeans as fertilizer. Fertilizer and manure contain nitrogen, which is converted to nitrates. They also contain phosphorus.

Some of these nitrates and phosphorus run off into the Raccoon River watershed. They contribute to the growth of cyanobacteria, which excrete cyanotoxins.

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Climate change—specifically, higher air and water temperatures and more frequent heavy rains—have also led to more nitrates and phosphorus in the watershed and more cyanobacteria proliferation.

Since 1974, average nitrate levels in the Raccoon River have increased significantly. The Des Moines Water Works has had to incur costs to remove nitrates from Raccoon River water so the Class C drinking water standard of 10 mg/l is met before the water actually reaches the customer. Currently, there is no mandatory state plan for the reduction of nitrates in the Raccoon River.

DNR has authorized animal feeding operations to apply manure to frozen, snow-covered ground, which has resulted in discharges to navigable waters. The Iowa legislature has appropriated insufficient funds to DNR to implement and enforce water quality protections at animal feeding operations. Legislation to impose a moratorium on new medium and large animal feeding operations has been introduced in the Iowa legislature but has not passed.

In 2008, environmental groups inside and outside Iowa tried to get the Federal Environmental Protection Agency (EPA) to promulgate numeric water quality standards for nitrogen and phosphorus. The EPA said no. Instead, in 2011, the EPA announced a policy to defer to states on nitrogen and phosphorus regulation. EPA recommended states implement "voluntary agricultural nonpoint source controls." Efforts to overturn the EPA's decision not to act were unsuccessful. See generally Gulf Restoration Network v. McCarthy, 783 F.3d 227, 243-44 (5th Cir. 2015) (holding that the EPA had discretion not to issue water quality standards for nitrogen and phosphorus if it provided a reasonable explanation).

Nitrogen and phosphorus entering the Gulf of Mexico from, in part, the Mississippi River Basin "has created a hypoxic zone spanning

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thousands of square miles." A 2008 Gulf Hypoxia Action Plan calls for Iowa and other states along the Mississippi River to reduce nitrogen and phosphorus loadings to the Gulf of Mexico so that a 45% reduction in total levels is achieved.

In 2013, the Iowa legislature enacted legislation to authorize and fund the Iowa Nutrient Reduction Strategy. 2013 Iowa Acts ch. 132, § 60 (codified at Iowa Code § 466B.42 (2014)). This strategy identifies best management practices to reduce nitrogen and phosphorus discharges into surface waters but does not require adoption or implementation of any specific measure or practice. Only limited progress has been made; statewide improvements will require "a much greater degree of implementation than has occurred so far."

In the 2018 session, the Iowa legislature enacted section 20 of Senate File 512, making the Iowa Nutrient Reduction Strategy the state policy for nitrogen and phosphorus water pollution controls. 2018 Iowa Acts ch. 1001, § 20 (codified at Iowa Code § 455B.177(3) (2019)).

C. The Plaintiffs' Legal Claims. The plaintiffs' claims are all based on the public trust doctrine. The plaintiffs allege that their...

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