Osborne v. Iowa Natural Resources Council, 68766

• Citation: 336 N.W.2d 745
• Decision Date: 20 July 1983
• Docket Number: No. 68766,68766
• Parties: 14 Envtl. L. Rep. 20,038 H.D. OSBORNE, Appellee, v. IOWA NATURAL RESOURCES COUNCIL, Appellant.
• Court: United States State Supreme Court of Iowa

Page 745

336 N.W.2d 745

14 Envtl. L. Rep. 20,038

H.D. OSBORNE, Appellee, v. IOWA NATURAL RESOURCES COUNCIL, Appellant.

No. 68766.

Supreme Court of Iowa.

July 20, 1983.

Thomas J. Miller, Atty. Gen., and Elizabeth M. Osenbaugh, Asst. Atty. Gen., for appellant.

Gordon K. Darling of Darling, Chickering & Darling, Winterset, and Jared O. Bauch, Traer, for appellee.

Considered by REYNOLDSON, C.J., and McCORMICK, SCHULTZ, CARTER, and WOLLE, JJ.

SCHULTZ, Justice.

This appeal arises from a landowner's failure to secure a permit from the Iowa Natural Resources Council (council) before engaging in certain floodplain construction. Osborne, the landowner, did make after-the-fact applications to the council and following a hearing the council ordered the applications granted subject to certain conditions. Osborne disagreed with the council's conditions regarding channel widening, relocation of a levee, and wildlife habitat. He petitioned for judicial review and following a hearing the district court set aside the council's orders. It held that the council lacked statutory authority to impose conditions for approval of the applications and that the council's only remedy was to seek abatement of the construction. The council appeals and we reverse.

The relevant events span approximately two decades. On June 1, 1968, Osborne wrote the council seeking permission to straighten Wolf Creek where it meandered through about forty acres of land he owned in Tama County. The council promptly advised him that a permit was required for any floodplain construction on Wolf Creek and further advised him on the necessary forms and procedures. In 1969, without filing an application or securing a permit, Osborne built a levee. He straightened the creek channel in 1977 and constructed an adjacent levee segment. All of this construction was within the creek's floodplain.

The council learned of this construction in 1977 and told Osborne to cease and to submit a permit application. In December 1977, after the attorney general sued Osborne to compel him to file an application, Osborne filed an application for approval of the channel straightening. In July 1979 Osborne filed a second application. This application was filed jointly with Broeker, a downstream neighbor, and sought a change in the alignment of the channel where Osborne's property adjoins Broeker's land. A third application was an after-the-fact application made by Osborne to obtain approval of a levee change; this third application was filed at the council's request. It is these three permit applications which are the gravamen of this appeal. We shall consider them shortly.

First, however, we must determine whether we have jurisdiction to hear this appeal. Jurisdiction in this case depends upon whether the motion by the council to enlarge and amend the district court judgment pursuant to Iowa R.Civ.P. 179(b) was appropriate. The district court overruled the motion on the ground that it was inappropriate because there had been no trial of an issue of fact. If the motion was inappropriate, then the council's notice of appeal, which was taken more than thirty days after the entry of judgment, was late and this court is without jurisdiction. Iowa R.App.P. 5(a); Budde v. City Development Board, 276 N.W.2d 846, 849-50 (Iowa 1979). If the motion is appropriate, then the thirty-day period for filing the appeal was tolled. Id.

The threshold question is whether a rule 179(b) motion is appropriate on a judgment rendered on judicial review. We recently discussed in detail situations when a rule 179(b) motion is authorized and effective and we need not repeat our discussion here. Kunau v. Miller, 328 N.W.2d 529, 530 (Iowa 1983). In Kunau we indicated that, except as may be provided by separate rule, such a motion is restricted to a nonjury ruling on an issue of fact; however, we pointed out that the 1980 amendments to the Iowa Rules of Civil Procedure, particularly Iowa R.Civ.P. 333(c), extends the applicability of rule 179(b) to judicial review of contested agency action. Id. In agency adjudication other than a contested case rule 179(b) motions are limited to decisions in which the district court made a determination of fact. State ex rel. Johnston v. Iowa Department of Social Services, 328 N.W.2d 912, 913 (Iowa 1983). Although we have never expressly stated that rule 333(c) extends rule 179(b) motions in administrative review to all contested cases, we believe that this is the logical conclusion to draw from the language of rule 333(c) and our decisions in Kunau and Johnston.

Thus we hold that the district court erred in ruling that rule 333(c) does not authorize a rule 179(b) motion where the ruling on judicial review of a contested case resolves only questions of law. Accordingly, we hold that we have jurisdiction.

In his petition for judicial review filed in the district court Osborne generally claimed relief from the agency action on grounds that (1) the agency action violated and was in excess of Iowa Code chapter 455A and the agency rules promulgated thereunder; and (2) the agency action and requirements are not supported by the record and are unreasonable, arbitrary, and capricious. The district court determined that there was no statutory authority allowing the agency to impose conditions on the granting of the permits and, consequently, it addressed neither Osborne's contentions of agency rule violations nor the reasonableness of the agency's action under the record. On this appeal Osborne does not point to any rule violations nor do we find any.

The council has raised certain issues before us and Osborne has responded to them without urging additional matters. As these issues generally follow the matters urged by Osborne in the petition for judicial review, we will consider them. The council claims: (1) the council possessed statutory authority to conditionally approve the construction; (2) the conditions for approval were reasonable and petitioner waived certain objections to the reasonableness of the conditions; (3) the court should not have overruled the council's motion for a more specific statement in the judicial review proceeding; and (4) the cost of transcribing the council hearing should have been taxed to Osborne. We need not address the third issue because the council failed to state, argue, or cite authority in its brief. Iowa R.App.P. 14(a)(3). The fourth issue was not presented to the district court except in a motion to enlarge and amend findings. This matter should be raised as an issue in some manner prior to a final ruling by the district court. Therefore, we shall not consider it on appeal.

I. Council authority to permit conditional approval. The council's argument that it had authority to grant conditional approval is based in part on former Iowa Code section 455A.33(3). That section states:

3. Application for permit. In the event any person desires to erect or make, or to suffer or permit, a structure, dam, obstruction, deposit or excavation, other than a dam, constructed and operated under the authority of chapter 469, to be erected, made, used or maintained in or on any floodway or flood plains, such person shall file a verified written application with the director, setting forth the material facts. The director shall provide the council with copies of the application and an opportunity for the council to call up the application for its determination. The director, or the council, after an investigation or a public hearing if there is an objection to the proposed project shall determine the fact and approve or deny the application imposing such conditions and terms as the director or council may prescribe. A determination of the director may be appealed to the council by any aggrieved party.

Iowa Code § 455A.33(3) (1981). This court has recently examined this section for the very issue raised in this case. In Martin v. Iowa Natural Resources Council, 330 N.W.2d 790 (Iowa 1983), we affirmed the council's conditional grant of a landowner's after-the-fact application for permission to construct an agricultural levee on a river. Petitioner had argued that the section did not permit abatement of existing structures except by action in equity or by condemnation. We stated that his arguments seemed to be in conflict with Easter Lake Estates, Inc. v. Iowa Natural Resources Council, 328 N.W.2d 906, 909 (Iowa 1982). Although we ultimately rejected petitioner's argument on another ground, we did state:

Section 455A.33(3) confers statutory authority on the agency in granting permit approvals to impose "such conditions and terms as the director or council may prescribe." We hereafter conclude in our discussion of other arguments made by the petitioner that the conditions imposed by the agency for granting [an after-the-fact] permit for petitioner's levee construction were validly related to agency rules governing the location of encroachment limits. As such, the conditions are not subject to attack on the grounds urged by petitioner.

Martin, 330 N.W.2d at 793. Accordingly, we agree that the court erred in finding the council did not possess the statutory authority to conditionally grant an after-the-fact construction permit. As in Martin we need not decide the scope of remedies that may be available if Osborne takes no action to comply with these conditions. Id. at 792-93.

II. Reasonableness of the conditions. Since the district court did not examine the reasonableness of the conditions prescribed by the council in granting the permit, we find it necessary to address briefly the scope of our review. Our duty when reviewing a district court ruling on judicial review is to correct errors of law made by the district court. Caterpillar Davenport Employer's Credit Union v. Huston, 292 N.W.2d 393, 395 (Iowa 1980). The district court, when exercising...