Sierra Club Iowa Chapter v. Iowa Dep't of Transp.

• Decision Date: 31 October 2012
• Docket Number: No. 11–1979.,11–1979.
• Citation: 824 N.W.2d 561
• Parties: SIERRA CLUB IOWA CHAPTER, Linda Biederman, and Elwood Garlock, Petitioners–Appellants, v. IOWA DEPARTMENT OF TRANSPORTATION, Respondent–Appellee.
• Court: Iowa Court of Appeals

824 N.W.2d 561

SIERRA CLUB IOWA CHAPTER, Linda Biederman, and Elwood Garlock, Petitioners–Appellants,

v.IOWA DEPARTMENT OF TRANSPORTATION, Respondent–Appellee.

No. 11–1979.

Court of Appeals of Iowa.

Oct. 31, 2012.

Appeal from the Iowa District Court for Linn County, Mitchell E. Turner, Judge.

Petitioners appeal from the dismissal of their petition for judicial review. AFFIRMED.

Wallace L. Taylor, Cedar Rapids, for appellants.

Thomas J. Miller, Attorney General, Richard E. Mull, Assistant Attorney General, Jerry Vander Sanden, County Attorney, for appellee.

Heard by VOGEL, P.J., and MULLINS and BOWER, JJ.

VOGEL, P.J.

Sierra Club Iowa Chapter, Linda Biederman, and Elwood Garlock (hereinafter referred to collectively as Sierra Club) appeal the dismissal of their petition for judicial review of the action of the Iowa Department of Transportation (IDOT) in planning the construction of a highway through a county nature preserve and adjacent to a state nature preserve. Sierra Club claims it was not first required to seek a declaratory order under Iowa Code section 17A.9 (2011) and that the issue is ripe for judicial review. IDOT counters that the appeal was not timely due to the Sierra Club's reliance on an improper rule 1.904(2) motion, and we therefore have no appellate jurisdiction. Alternatively, it urges us to affirm the district's decision that it lacked jurisdiction as Sierra Club failed to exhaust its administrative remedies and the issue is not ripe for review. We affirm.

I. Background Facts and Proceedings

As this is a review of an order granting a motion to dismiss, the following facts alleged in Sierra Club's petition will be taken as true:

The [IDOT] has proposed to construct a highway, referred to as Highway 100, west of the City of Cedar Rapids, Linn County, Iowa. The proposed Highway 100 project would go through the Rock Island County Preserve and adjacent to the Rock Island State Preserve. These Preserves are a rare specimen of native Iowa sand prairie. The Preserves provide habitat for many native species of plants and animals, some of which are classified as endangered or threatened.

Sections 314.23 and 314.24 of the Iowa Code require agencies undertaking highway projects to preserve and protect natural and historic features and to avoid destruction or damage to natural areas if reasonable alternatives are available at no significantly greater cost. The [IDOT] has not complied with these statutes with respect to this highway project.

The petition sought a permanent injunction prohibiting the IDOT from taking any further action to acquire property, let bids or contract, or carry out any construction work to implement the highway project as “presently contemplated.” The petition also requested the court to enter an order requiring the IDOT to comply with sections 314.23 and 314.24.

On June 30, 2011, the IDOT filed a preanswer motion to dismiss or strike the petition alleging that Sierra Club had not exhausted all available administrative remedies because it had not sought or obtained a final declaratory order from the IDOT, as required under section 17A.9. The motion to dismiss also claimed the issue was not ripe for adjudication both because there was not a formalized factual record through the administrative process and the dispute was over a “proposed” highway, rendering it premature. Sierra Club responded by asserting it did not need a declaratory ruling prior to seeking judicial review because there was no question sections 314.23 and 314.24 applied to the proposed highway, and 17A.9 declaratory orders are only required when asserting hypothetical fact situations. Sierra Club also argued that the case was ripe for judicial review because it was challenging the location of the highway, that the proposal is in the IDOT's five-year plan, and funds for right-of-way acquisition and mitigation have been committed. The IDOT responded that the planning and design of the proposed highway was not complete and “cannot become a matter of reality until further administrative action takes place and funding for construction is approved.”

A hearing was held and the district court, in an order entered October 18, 2011, found it did not have jurisdiction because “there [was] no evidence in the record that [Sierra Club] has petitioned the Department of Transportation for a declaratory ruling; thus, there is no decision for this court to ‘judicially review.” The district court also found the case was not ripe for review as there was “nothing in the record to indicate that any actual or present controversy exists. [Sierra Club's] petition clearly refers to the project as ‘proposed.” On November 4, Sierra Club filed a motion to enlarge and expand findings and modify the ruling pursuant to Iowa Rule of Civil Procedure 1.904(2). The IDOT responded and argued that Sierra Club's motion was “simply a rehash of the issues raised in [Sierra Club's] resistance to the motion to dismiss.” The district court denied Sierra Club's motion in its entirety on November 23, 2011. Sierra Club filed a notice of appeal on December 5, 2011.

II. Timeliness of Appeal

The first issue we address is the IDOT's assertion that we do not have appellate jurisdiction because Sierra Club's notice of appeal was not timely filed under Iowa Rule of Appellate Procedure 6.101(1)(b). Sierra Club responds that the thirty-day window to appeal did not start to run until after its rule 1.904(2) motion had been ruled upon.

Generally, a notice of appeal from an order, judgment, or decree must be filed within thirty days from the time the judgment is entered. Iowa R.App. P. 6.101(1)(b). This time period is altered, however, when a motion for new trial, motion for judgment notwithstanding the verdict, or a rule 1.904(2) motion is filed in a timely manner. In re Marriage of Okland, 699 N.W.2d 260, 263 (Iowa 2005). However, the time limit for appeal cannot be extended by filing an improper post-trial motion. State v. Olsen, 794 N.W.2d 285, 298 (Iowa 2011).

We must therefore determine whether Sierra Club's post-trial motion was proper, such that the notice of appeal was timely. Iowa Rule of Civil Procedure 1.904(2)¹ permits a party to file a motion to request the district court to amend or enlarge its findings and conclusions, and to enable the court to modify its judgment or enter a new judgment. Thus, it is a procedural mechanism that permits parties to request reconsideration of a ruling, and authorizes the court to change its ruling. Meier v. Senecaut, 641 N.W.2d 532, 538 (Iowa 2002). However, a rule 1.904(2) motion is available only to address “a ruling made upon [the] trial of an issue of fact without a jury.” Id. (citations omitted).

Our supreme court addressed the varied uses and application of rule 1.904(2) motions in Okland:

The rule can be used by a party, with an appeal in mind, as a tool for preservation of error. See Meier, 641 N.W.2d at 538 (“Our preservation of error doctrine requires a party to make a request for a ruling, and rule 179(b) [now 1.904(2) ] establishes a procedure to use under some circumstances to make the request.”). Similarly, it can be used to better enable a party to attack “specific adverse findings or rulings in the event of an appeal” by requesting additional findings and conclusions. Johnson v. Kaster, 637 N.W.2d 174, 182 (Iowa 2001) (citing Ritz v. Wapello County Bd. of Supervisors, 595 N.W.2d 786, 789 (Iowa 1999)). Additionally, it can be used, with no appeal in mind, to obtain a ruling on an issue that the court may have overlooked in making its judgment or decree. See U.S. Cellular Corp. v. Bd. of Adjustment, 589 N.W.2d 712, 720 (Iowa 1999) (“When the district court fails to comply with rule 179(a) [now 1.904(1) ], a party may request that the court enlarge or amend its findings and conclusions .”). Yet, it can also be used by a party to merely request the court to reconsider and change the ruling, with or without an appeal in mind. Meier, 641 N.W.2d at 538.

Okland, 699 N.W.2d at 266–67. The supreme court reasoned that these purposes are all derived from the broad language of the rule allowing a party to file a motion following the entry of a judgment or decree in many types of nonjury cases to request “ ‘the findings and conclusions ... be enlarged or amended and the judgment or decree modified ... or a different judgment or decree substituted.’ “ Id. at 267 (quoting Iowa R. Civ. P. 1.904(2)). It gives a party the opportunity to request the court to reconsider its ruling before incurring the time and expense of an appeal. Id.

This does not mean a rule 1.904(2) motion is not available to challenge an issue of law, but the legal issue must have been addressed by the court in the context of an issue of fact tried by the court without a jury. See Bellach, 573 N.W.2d at 905 (finding a rule 1.904(2) motion did not toll time to appeal because the motion did not raise a challenge to an issue of fact or to a legal issue reached in the context of an issue of fact). This issue has also been addressed in the realm of judicial review of agency action in State ex rel. Johnston v. Iowa Department of Social Services, 328 N.W.2d 912, 912–13 (Iowa 1983). The court in Johnston held that even though the predecessor of rule 1.1603 provided that the provisions of rule 1.904(2) apply, rule 1.1603 governs contested case proceedings and does not apply to judicial review of agency action other than in a contested case. Id. at 913; see also Osborne v. Iowa Natural Res. Council, 336 N.W.2d 745, 747 (Iowa 1983) (holding in agency adjudication other than a contested case, rule 1.904(2) motions are limited to decisions in which the district court made a determination of fact). However, our supreme court has recently held that a motion raising the court's failure to decide a purely legal issue could still be described as a rule 1.904(2) motion to preserve error. LaMasters v.. State, ––– N.W.2d ––––, ––––, 2012 WL 50429966, at *6 (Iowa ...