The Iowa Citizens for Community Improvement (“ICCI”), a citizen’s environmental group, filed suit earlier this year against the State of Iowa (“the State”) alleging that the State had violated its duty to protect the Raccoon River. The case, Iowa Citizens for Cmty. Improvement v. State of Iowa, No. EQCE084330 (Iowa Cir. Ct. Sept. 10, 2019), is brought under the Public Trust Doctrine, which recognizes the public right to natural resources including “the air, running water, the sea and its shore.” ICCI claims that ongoing monitoring on the Raccoon River has shown elevated levels of pollution, including nitrate pollution, since 2016. The cause of these elevated pollution levels, according to ICCI, is the State’s failure to mandate nitrogen and phosphorus limits for runoff from Animal Feeding Operations (“AFOs”) smaller than 500 Animal Units, also referred to as Small to Medium AFOs. In doing so, ICCI alleges that the State has “abdicated control of the . . . Raccoon River to private parties” in violation of its public trust duties. ICCI is asking the court to declare that the public has a property interest through the public trust in the navigable waters of the State of Iowa, and that the State has a duty to protect the public’s interest in those waters. ICCI also asks that the court require the State to adopt and implement a mandatory plan to impose nitrogen and phosphorus limitations on AFOs in the Raccoon River watershed, and to prevent the state from authorizing the construction of new AFOs in the Raccoon River watershed until such a plan is in place.

The Public Trust Doctrine originated in Roman law, was adopted into English law, and ultimately into the common law of the United States upon independence from England. The Doctrine requires that the sovereign or state to hold certain natural resources in trust for the people, and has most often ben applied to navigable waterways. Under the Public Trust Doctrine, the state has a duty to protect the public use of navigable water and to prevent navigable waters from becoming significantly harmed or impaired. In Iowa, courts have held that they will “not necessarily subscribe to broad applications of the [Public Trust] doctrine,” but that “a navigable river is unquestionably a part of the public trust.” State v. Sorensen. However, this would be the first time an Iowa court, or any court, has been asked to apply the Public Trust Doctrine to regulate agriculture-related pollution.

The first challenge to the case has already been defeated. After responding to ICCI’s complaint with the court, the State moved to have the case dismissed, arguing that the plaintiffs did not have the necessary standing to bring the case. In Iowa, the requirements for standing in a Public Trust Doctrine case are (1) a specific, personal, and legal interest in the litigation, (2) and injury. In a ruling issued in September, the court concluded that ICCI had met both requirements for standing because they had suffered injuries as a result of the water in Raccoon River being too polluted to enjoy either recreationally or aesthetically.

In response to this ruling from the court, the State has applied to the Supreme Court of Iowa for an “interlocutory appeal” – an appeal that that is taken before the lower court has given its final order in the case. The State is asking the Supreme Court of Iowa to reconsider the State’s motion to dismiss which was denied by the trial court. The State argues that by allowing the lawsuit to go forward the lower court will be violating the “political question doctrine,” a judicial doctrine that prevents courts from reviewing a legislature’s policy decisions. According to the State, by asking the court to require the State to pass legislation regulating the levels of nitrogen and phosphorus runoffs from Small to Medium AFOs, it has asked the court to review the Iowa legislature’s policy decision.

Notably, this is not the first case that sought to regulate nitrate levels in the Raccoon River. A lawsuit brought by the Des Moines Water Works against thirteen Iowa drainage districts alleged that the districts had violated the Clean Water Act by discharging nitrates into the Raccoon River without necessary permits. In that suit, the Des Moines Water Works argued that the drainage tiles used by the districts were point sources subject to Clean Water Act regulation. Ultimately, the Iowa Supreme Court ruled in favor of the drainage districts, concluding that Iowa law had long considered drainage districts immune from lawsuits.

At the moment, it is unknown when the Supreme Court of Iowa will issue a decision on the State’s request for appeal in the Iowa Citizens for Cmty. Improvement suit. If the Court does grant the appeal, then case will be dismissed. If the Court does not grant the appeal, then the case will be allowed to continue, and operators of Small to Medium AFOs may ultimately be subject to greater regulation of nitrogen and phosphorus runoff.

 

To read ICCI’s complaint in the case click here.

To read the trial court’s order denying the State’s motion to dismiss click here.

To read the final decision in the Des Moines Water Works case click here.

To read more about water law click here.