Amended April 11, 2017 Board of Water Works Trustees of the City of Des Moines, Iowa v. Sac County Board of Supervisors, as Trustee of Drainage Districts 32, 42, 65, 79, 81, 83, 86, and Calhoun County Board of Supervisors and Sac County Board of Supervisors as Joint Trustees of Drainage Districts 2 and 51 and Buena Vista County Board of Supervisors and Sac County Board of Supervisors as Joint Trustees

• Court: Supreme Court of Iowa
• Decided: January 27, 2017
• Docket: 16–0076
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 16–0076

Filed January 27, 2017

Amended April 11, 2017

BOARD OF WATER WORKS TRUSTEES OF THE CITY OF DES MOINES, IOWA,

Appellant,

vs.

SAC COUNTY BOARD OF SUPERVISORS, AS TRUSTEE OF DRAINAGE DISTRICTS 32, 42, 65, 79, 81, 83, 86, and CALHOUN COUNTY BOARD OF SUPERVISORS and SAC COUNTY BOARD OF SUPERVISORS AS JOINT TRUSTEES OF DRAINAGE DISTRICTS 2 AND 51 and BUENA VISTA COUNTY BOARD OF SUPERVISORS and SAC COUNTY BOARD OF SUPERVISORS AS JOINT TRUSTEES OF DRAINAGE DISTRICTS 19 AND 26 AND DRAINAGE DISTRICTS 64 AND 105,

Appellees.

Certified questions of law from the United States District Court for

the Northern District of Iowa, Mark W. Bennett and Leonard T. Strand,

United States District Court Judges.

Water utility seeks monetary and injunctive relief from upstream

drainage districts on claims arising from the cost to remove nitrates from

drinking water. CERTIFIED QUESTIONS ANSWERED.

John E. Lande, Richard A. Malm, and Colleen MacRae (until

withdrawal) of Dickinson, Mackaman, Tyler & Hagen, P.C., Des Moines,

for appellant. 2

Michael R. Reck, Charles F. Becker, and Stephen H. Locher of

Belin McCormick, P.C., Des Moines, and David Y. Chung of Crowell &

Moring LLP, Washington, D.C., for appellees.

James W. Carney of Carney & Appleby, PLC, Des Moines, for

amicus curiae Iowa Drainage District Association.

Joshua T. Mandelbaum of Environmental Law & Policy Center,

Des Moines, for amicus curiae Environmental Law & Policy Center. 3

WATERMAN, Justice.

This high-profile litigation pits one political subdivision of the State

of Iowa against several other political subdivisions. The plaintiff is a

municipal waterworks; the defendants are upstream drainage districts

and their trustees. The plaintiff provides drinking water to central

Iowans and is suing for money damages and other remedies to recover its

costs to remove nitrates from Raccoon River water. The case was

brought in federal court. Our role is simply to answer the following

questions of Iowa law certified by that court.

Question 1: As a matter of Iowa law, does the doctrine of implied

immunity of drainage districts as applied in cases such as Fisher v.

Dallas County, 369 N.W.2d 426 (Iowa 1985), grant drainage districts

unqualified immunity from all of the damage claims set forth in the

complaint (docket no. 2)?

Answer: Yes. As explained below, drainage districts have a

limited, targeted role—to facilitate the drainage of farmland in order to

make it more productive. Accordingly, Iowa law has immunized drainage

districts from damages claims for over a century. This immunity was

reaffirmed unanimously by our court just over four years ago.

Question 2: As a matter of Iowa law, does the doctrine of implied

immunity grant drainage districts unqualified immunity from equitable

remedies and claims other than mandamus?

Answer: Yes. Again, Iowa precedent, reaffirmed unanimously by

our court just four years ago, recognizes that drainage districts are

immune from injunctive relief claims other than mandamus.

Question 3: As a matter of Iowa law, can the plaintiff assert

protections afforded by the Iowa Constitution’s inalienable rights, due 4

process, equal protection, and takings clauses against drainage districts

as alleged in the complaint?

Answer: No. Although these constitutional clauses are

fundamental to our freedom in Iowa, they exist to protect citizens against

overreaching government. Generally, one subdivision of state

government cannot sue another subdivision of state government under

these clauses. And even if they could, an increased need to treat nitrates

drawn from river water to meet standards for kitchen tap water would

not amount to a constitutional violation.

Question 4: As a matter of Iowa law, does the plaintiff have a

property interest that may be the subject of a claim under the Iowa

Constitution’s takings clause as alleged in the complaint?

Answer: No, for the reasons discussed in the answer to

Question 3.

In the balance of this opinion, we will explain our reasoning behind

these answers. We emphasize that our decision does not relate to other

matters raised in the federal court litigation, including claims brought

under federal law.

I. Background Facts and Proceedings.

To provide context for the certified questions, we adopt this

discussion from the federal court’s certification order. See Foley v.

Argosy Gaming Co., 688 N.W.2d 244, 246 (Iowa 2004) (“We restrict our

discussion to the facts provided with the certified questions.”). 1

A. The Des Moines Water Works. Plaintiff, the Board of Water

Works Trustees of the City of Des Moines, Iowa, also known as the

1We reiterate the certifying court’s disclaimer that no judicial fact-finding has occurred. The factual background is drawn from allegations of the pleadings that were admitted or denied for lack of information. 5

Des Moines Water Works (DMWW), is a municipal water utility under

Iowa Code chapter 388 (2015) 2 that provides drinking water to an

estimated half-million Iowans in the Des Moines area, both by direct

service and wholesale service to other utilities and districts. DMWW

obtains its water primarily from the Raccoon and Des Moines Rivers.

The Raccoon River drains about 2.3 million acres from portions of

seventeen Iowa counties, including Buena Vista, Sac, and Calhoun. It

flows approximately 186 miles from its origin in Buena Vista County to

its confluence with the Des Moines River, south of downtown

Des Moines.

Under the Safe Drinking Water Act (SDWA) as amended in 1996,

42 U.S.C. §§ 300f–300j (2012), DMWW is obligated to meet the maximum

contaminant level standards set by the Environmental Protection Agency

(EPA) in the water it serves to consumers. The SDWA is the key federal

law for protecting public water supplies from harmful contaminants.

Section 300g–1, as amended in 1996, directs the EPA to select

contaminants for regulatory consideration based on occurrence, health

effects, and meaningful opportunity for health risk reduction. 42 U.S.C.

§ 300g–1(b). For each contaminant that the EPA determines requires

regulation, the EPA must set a nonenforceable maximum contaminant

level goal at a level that avoids known or anticipated adverse health

effects and that allows an adequate margin of safety. Id. § 300g–

1(b)(4)(A). The EPA must then set an enforceable standard, a maximum

contaminant level (MCL), as close to the goal as is feasible, using the best

technology, treatment techniques, or other means available and taking

costs into consideration. Id. § 300g–1(b)(4)(B). The maximum

2All references are to the 2015 Code unless otherwise indicated. 6

contaminant level for nitrate, promulgated in 2012 and currently in

force, is 10 mg/L, close to the equivalent of ten parts per million. See

EPA, Table of Regulated Drinking Water Contaminants,

http://www.epa.gov/ground-water-and-drinking-water/table-regulated-

drinking-water-contaminants (last visited Jan. 12, 2017). Nitrate is a

soluble ion of nitrogen, found in soil, which only leaves the soil when

drawn out by the flow of water. See id. The health risks associated with

nitrate contamination in drinking water include blue baby syndrome and

potential endocrine disruption impacts. Id.

In its complaint filed in federal court, DMWW states that from

1995 to 2014, nitrate concentrations in the Raccoon River at the DMWW

intake points exceeded the 10 mg/L standard for drinking water at least

1636 days, or twenty-four percent of the time. In 2013 and 2014, the

average nitrate concentration in the Des Moines and Raccoon Rivers was

11.98 mg/L, the third highest average in the last forty years. Similarly,

in September, October, November, and December 2014, the average

nitrate concentration was 11.89 mg/L, 13.23 mg/L, 13.43 mg/L, and

12.56 mg/L, respectively.

DMWW states that it utilizes three water treatment plants to

process source water into drinking water. These three treatment plants,

the McMullen Plant, the Saylorville Plant, and the Fleur Plant, all draw

water from the Raccoon River. DMWW has managed excess nitrates in

the source water it processes in several ways. At the Fleur Plant, a

fraction of the water undergoes an ion exchange process to remove

nitrates and then is blended with filtered water to stay below the EPA’s

10 mg/L standard. In addition to drawing water from the Raccoon River,

the McMullen Plant draws water from Crystal Lake, a river-influenced

surface water source managed to provide reduced-nitrogen water 7

through natural biologic processes. DMWW also can blend the water

from the McMullen Plant with nitrate-free water drawn from a reservoir

used as an emergency backup water source. The Saylorville Plant is the

only plant operated by DMWW that has a limited capacity to remove

nitrates.

Additionally, DMWW has an ion exchange nitrate-removal facility

that it operates as needed at a cost of approximately $4000–$7000 per

day. 3 DMWW utilized its nitrate removal continuously due to excessive

nitrate levels until March 10, 2015. The continuous operation for a total

of ninety-six days is the longest in the history of the facility’s operation

during the winter season. DMWW states that, due to the age and limited

capacity of the existing nitrate-removal facility, it will need to design and

construct a new nitrate-removal facility with a fifty-million-gallon-per-day

capacity at a cost of between $76 million and $183.5 million before 2020.

Operation and maintenance costs will be in addition to the initial

estimated capital cost.

B. The Drainage Districts. Drainage districts were instituted in

Iowa to allow wetlands to be turned into productive farmland. The

purpose of drainage districts in Iowa can be traced back to the late

1800s and early 1900s. See Swamp Land Act of 1850, ch. 84, 9 Stat.

519 (codified at 43 U.S.C. §§ 982–984 (2012)); Hatch, Holbrook & Co. v.

Pottawattamie County, 43 Iowa 442 (1876); Iowa Const. art. I, § 18 (as

amended in 1908). Vast areas of flatland could not be farmed due to

inadequate drainage. Iowa Code chapter 468 and Iowa Constitution

3It is unclear from DMWW’s filings whether this nitrate-removal facility is located at one of its water treatment plants or treats water received from all plants. DMWW indicates that its nitrate-removal facility removes nitrates from its finished water. 8

article I, section 18 govern drainage districts. Drainage districts enable

property owners to jointly fund drainage improvements. See Fisher, 369

N.W.2d at 428–29.

The right of a landowner to place tiles in swales or ditches to carry the water from ponds upon and onto lower lands . . . is necessary . . . in order that low and swampy lands may be reclaimed, and a denial thereof would be productive of incalculable mischief.

Dorr v. Simmerson, 127 Iowa 551, 553, 103 N.W. 806, 807 (1905). To

establish a drainage district, at least two landowners must petition for its

creation. Iowa Code § 468.6. The affairs of the drainage district are then

managed by the county board of supervisors in a representative capacity.

See, e.g., id. §§ 468.37, .89, .231, .232, .617. The board determines what

improvements are needed. Id. § 468.126(1)(a). If the cost exceeds

$50,000, a hearing is required to determine advisability of expenditure,

and an appeal is allowed. Id. § 468.126(1)(c). Improvements exceeding a

certain amount can be stopped by a majority of landowners in the

district through a process called remonstrance. Id. § 468.126(4)(c).

Drainage districts “have only such [limited] power as the

legislature grants them.” Reed v. Muscatine Louisa Drainage Dist. #13,

263 N.W.2d 548, 551 (Iowa 1978). Iowa’s legislature concluded drainage

from agricultural and other lands shall be presumed to benefit the

public:

1. The drainage of surface waters from agricultural lands and all other lands, including state-owned lakes and wetlands, or the protection of such lands from overflow shall be presumed to be a public benefit and conducive to the public health, convenience, and welfare. 2. The provisions of this subchapter and all other laws for the drainage and protection from overflow of agricultural or overflow lands shall be liberally construed to promote leveeing, ditching, draining and reclamation of wet, swampy, and overflow lands. 9

Iowa Code § 468.2(1)–(2).

The thirteen defendant drainage districts in this case are located in

the North Raccoon watershed and the Des Moines Lobe geographic

formation. The primary purpose of their drainage infrastructure is to

remove water from agricultural lands. Private subsurface tiles convey

water to other subsurface tiles, pipe, subsurface ditches, and channels

created and maintained by the defendants, which in turn convey water to

streams and rivers, and ultimately the Raccoon River.

C. Procedural Background. The defendants filed motions for

summary judgment seeking dismissal of DMWW’s federal court

complaint on several grounds, including the immunities enjoyed by

drainage districts under Iowa law. After the summary judgment motions

were briefed and argued, the federal court instructed the parties to meet,

confer, and come to an agreement on the identification and description of

state law issues that could be certified to the Iowa Supreme Court and

also instructed the parties to explain whether they believed these issues

should be certified. The parties filed a joint certification report. The

parties agreed on the wording of the four questions, but disagreed as to

whether the questions should be certified. The DMWW favored

certification. The defendants argued against certification as unnecessary

because controlling precedent answered the questions.

D. The DMWW’s Claims. DMWW’s complaint alleges ten causes

of action: Count I for violation of various federal statutes known as the

Clean Water Act; Count II for violation of Iowa Code section 455B.186 (“A

pollutant shall not be disposed of by dumping, depositing, or discharging

such pollutant into any water of the state . . . .”); Count III for public

nuisance; Count IV for statutory nuisance; Count V for private nuisance;

Count VI for trespass; Count VII for negligence; Count VIII for taking 10

without just compensation in violation of the Fifth Amendment of the

United States Constitution as made applicable by the Fourteenth

Amendment and article I, section 18 of the Iowa Constitution; Count IX

for violation of the Due Process and Equal Protection Clauses of the

Fourteenth Amendment of the United States Constitution and the due

process and equal protection clauses of the Iowa Constitution; and

Count X for permanent, prospective injunctive relief.

DMWW essentially argues that the defendants are responsible for

the increased nitrate concentrations in the Raccoon River. DMWW

alleges it may be forced to construct a new, high-capacity nitrate-removal

facility, to comply with the SDWA. DMWW’s state and federal

constitutional liability theories are based on its claim that the drainage

districts are responsible for the increased level of nitrates in the source

water the DMWW must process.

Against this backdrop, we turn to the certified questions,

beginning with the threshold issue of whether we should elect to answer

them.

II. Our Discretion to Answer Certified Questions.

The DMWW and the certifying federal court urge us to answer the

four certified questions. The drainage districts, however, argue that we

should decline to answer the questions on grounds that controlling

precedent is determinative. “Iowa Code section 684A.1 allows this court

to answer questions of Iowa law certified to us by a federal court that

concludes controlling precedent is lacking when the answer may be

determinative of the federal proceeding.” Oyens Feed & Supply, Inc. v.

Primebank, 808 N.W.2d 186, 188 (Iowa 2011). In Foley, we noted our

discretion to answer certified questions that (1) were certified by a proper

court, (2) presented questions of Iowa law, (3) “may be determinative of 11

the cause . . . pending in the certifying court,” and (4) appeared to the

certifying court to have no controlling Iowa precedent. 688 N.W.2d at

246 (quoting Iowa Code § 684A.1 (2003)).

The first three requirements are easily met here: the federal court

certified four questions of Iowa law that, if resolved adversely to DMWW,

would result in summary judgment dismissing its state law claims. “We

do not have a situation where the answers to the questions are fact-

dependent or the facts are in conflict. These are pure questions of law.”

Iowa Right to Life Comm., Inc. v. Tooker, 808 N.W.2d 417, 427 (Iowa

2011) (citations omitted) (distinguishing cases declining to answer

certified questions that required resolution of factual disputes). It is the

fourth requirement that gives us pause because, as the certifying court

recognized, we have controlling precedent that resolves the questions in

favor of the drainage districts, assuming that precedent remains good

law.

The federal court candidly acknowledged in its certification order

that if it did not certify the questions, it “would have to reject the

thoughtful, creative, novel, and well-argued positions of DMWW as

unsupported by Iowa law.” The court concluded that, given the public

importance of the case it described as “one of first impression,”

certification was appropriate to enable our court to decide the questions

under our state law.

We addressed the quandary of whether to answer certified

questions despite controlling precedent in Foley, in which the first

certified question asked, “Does the requirement of ‘special injury’ to state

a claim for a malicious prosecution action still remain the law of Iowa?”

688 N.W.2d at 246 (emphasis added). John Foley claimed the Argosy

casino had wrongfully sued him in Illinois for making false statements. 12

Id. at 245. Argosy voluntarily dismissed its Illinois lawsuit against Foley

before trial. Id. Foley then sued Argosy in Iowa district court, alleging

that “as a result of the Illinois suit, [his] insurance carrier declined to

renew its policies and [he] lost financing on a real estate deal in

Sioux City.” Id. at 245–46. Foley also claimed the lawsuit “caused him

stress, exacerbating preexisting neck and back pain.” Id. Argosy

removed the action to federal court and moved for summary judgment on

grounds that Foley failed to allege a recognized type of “special injury,”

such as an arrest or seizure of property, required to recover under Iowa

law. Id. at 246. The federal court certified four questions to our court

asking whether the harm alleged by Foley was recoverable under Iowa

law. Id. We observed that we first recognized the special injury

requirement in 1884 and had reaffirmed it in numerous decisions

thereafter, most recently four years earlier. Id. at 246–47. Yet we noted

Foley invited us to abandon the special-injury requirement. Id. at 247.

We proceeded to answer the certified questions, stating, “[O]ne may

always question whether a precedent is controlling by asking whether it

remains the law; it is manifest that we are free to overrule precedents

when circumstances warrant.” Id. at 247. We then applied our

precedent to answer the certified questions. Id. at 247–49.

As in Foley, the questions certified in this case can be answered by

applying long-standing precedent first decided a century ago and

reaffirmed repeatedly and as recently as four years ago. We take the

same approach today as we did in Foley. The certifying court here, in its

wisdom, defers to our judgment on whether the DMWW states a claim

against the drainage districts under Iowa law. Revisiting our state law

precedent is our prerogative. See State v. Eichler, 248 Iowa 1267, 1270,

83 N.W.2d 576, 578 (1957) (“If our previous holdings are to be overruled, 13

we should ordinarily prefer to do it ourselves.”). We elect to answer the

certified questions.

III. Analysis.

We begin our analysis by reviewing our well-settled precedent

limiting judicial relief against drainage districts to mandamus and

restricting constitutional challenges by public entities. We next explore

our traditional adherence to precedent left intact by the legislature,

tempered by our obligation to overrule decisions that are plainly

erroneous or rendered obsolete by changing circumstances. We then

address whether the DMWW’s claims warrant overruling our prior

decisions that recognize broad immunity for drainage districts and limit

constitutional challenges by public bodies. We conclude our precedent

remains good law, and we answer the certified questions accordingly.

A. Our Controlling Precedent. “Our cases have consistently held

that a drainage district is not susceptible to suit for money damages. It

has no corporate existence for that purpose.” Chi. Cent. & Pac. R.R. v.

Calhoun Cty. Bd. of Supervisors, 816 N.W.2d 367, 374 (Iowa 2012)

(quoting Fisher, 369 N.W.2d at 429). “A drainage district’s immunity is

not based on the doctrine of sovereign immunity; instead, it flows from

the fact that a drainage district is an entity with ‘special and limited

powers and duties conferred by the Iowa Constitution.’ ” Id. at 374

(quoting Fisher, 369 N.W.2d at 430).

Drainage districts are created and governed by statute, Iowa Code

chapter 468, as authorized under the Iowa Constitution, article I, section

18. Drainage district immunity is premised on their limited purpose,

which is “to build and maintain drainage improvements that provide for

the ‘drainage and improvement of agricultural and other lands, thereby

making them tillable or suitable for profitable use.’ ” Hardin Cty. 14

Drainage Dist. 55, Div. 3, Lateral 10 v. Union Pac. R.R., 826 N.W.2d 507,

510 (Iowa 2013) (quoting Chi., Milwaukee & St. Paul Ry. v. Mosquito

Drainage Dist., 190 Iowa 162, 163, 180 N.W. 170, 170 (1920)). Drainage

districts have no other function, power, or purpose. As the certifying

court observed, “Drainage districts are something of a collective passive

utility system.” The districts have accomplished their original statutory

mission: The terrain in much of north central Iowa was too wet or

swampy for growing row crops 4 until subsurface drain tiles were installed

to “transform these lands into the productive farm land that exists

today.” Id. at 508. The drainage districts now have a continuing

statutory duty to keep the drains working, that is, to maintain the

original capacity of the drainage systems. See Iowa Code § 468.126(1)(a).

We reaffirmed our immunity precedent just four years ago to hold

that a railroad could not sue a drainage district for the railroad’s costs

incurred repairing underground drainage tile. Chi. Cent. & Pac. R.R., 816

N.W.2d at 378. The tile had collapsed, causing a sinkhole undermining

the railroad tracks. Id. at 368. The county board of supervisors, as

trustees for the drainage district, owed the statutory duty to maintain

drainage improvements in repair. Id. at 373 (citing Iowa Code

§ 468.126(1)). After the county supervisors failed to fix the sinkhole, the

railroad made repairs to the drainage system at its expense and

demanded reimbursement. Id. at 369. We held the railroad’s

reimbursement claim failed as a matter of law, stating, “We see no reason

to abandon our previous holdings that . . . mandamus is the proper

remedy.” Id. at 374.

4It is said that “corn doesn’t like wet feet.” 15

This has been our law for over one hundred years. See Gish v.

Castner-Williams & Askland Drainage Dist., 136 Iowa 155, 157, 113 N.W.

757, 757 (1907) (“The drainage district is not such [a] legal entity as is

known to or recognized by law as a proper party to adversary

proceedings.”); Clary v. Woodbury County, 135 Iowa 488, 495, 113 N.W.

330, 332–33 (1907) (holding drainage district could not be sued for

downstream flooding). We have repeatedly affirmed the principle that

drainage districts cannot be sued for money damages. See, e.g., Gard v.

Little Sioux Intercty. Drainage Dist., 521 N.W.2d 696, 698 (Iowa 1994)

(dismissing tort action against drainage district by estates of drowned

boaters whose watercraft struck obstruction maintained by district); Nat’l

Props. Corp. v. Polk County, 386 N.W.2d 98, 107 (Iowa 1986) (noting

“[o]ur cases have consistently held that a drainage district is not

susceptible to suit for money damages” (quoting Fisher, 369 N.W.2d at

429)); Miller v. Monona County, 229 Iowa 165, 170, 294 N.W. 308, 310–

11 (1940) (holding operation of drainage district could not be declared a

nuisance); Bd. of Supervisors v. Dist. Ct., 209 Iowa 1030, 1033, 229 N.W.

711, 712 (1930) (“Nor is the plaintiff entitled to a judgment against said

drainage district No. 46. A drainage district is sui generis. It is not a

corporation. It cannot sue or be sued. . . . There can be no judgment at

law rendered against a drainage district in any case.”); see also Holler v.

Bd. of Supervisors, 304 N.W.2d 441, 442 (Iowa Ct. App. 1980) (“[W]e can

find no authority for the plaintiffs’ contention that injury resulting to a

lower landowner from the exercise of [duties of the drainage district]

should be compensated . . . .”).

In Fisher, homeowners whose basement flooded during heavy rains

blamed nearby drainage tile blocked by tree roots and debris. 369

N.W.2d at 427–28. They filed a tort action seeking money damages from 16

the drainage district and the county board of supervisors, alleging

negligent inspection and maintenance of the drainage tile line. Id. The

district court ruled that neither the drainage district nor the board acting

on its behalf could be sued for money damages. Id. at 428. We affirmed,

noting the “limited nature of a drainage district’s purposes and powers”

as the reason judicial relief is limited to mandamus actions to compel

performance of a statutory duty. Id. at 429, 430–31. We reiterated that

we have never permitted a drainage district to be sued “for money

damages on a tort theory for injury to land within the district” and

rejected the plaintiffs’ argument that the legislature’s partial abrogation

of sovereign immunity with the enactment of the Municipal Tort Claims

Act, Iowa Code chapter 613A (now codified at Iowa Code chapter 670),

opened the door to tort actions against a drainage district. Id. at 429–30.

We elaborated,

We do not agree that a drainage district’s immunity from suit in tort must stand or fall with the doctrine of sovereign immunity. Nothing in our prior cases suggests that sovereign immunity was the reason for denial of the right to sue a drainage district for money damages. The language of the cases indicates that, apart from any question of sovereign immunity, a drainage district is merely an area of land, not an entity subject to a judgment for tort damages. This was never the case with such governmental entities as cities or counties. Even before the enactment of chapter 613A, a city could be sued for torts committed in a proprietary, as opposed to governmental, capacity. In contrast, a drainage district could not be subject to a money judgment in tort under any state of facts.

Id. at 430 (emphasis added) (citation omitted). We expressly held that “a

drainage district is not a ‘municipality’ within the meaning of Iowa Code

section 613A.1(1). A drainage district is not subject to suit in tort for

money damages.” Id. 17

A decade later, in Gard, we declined to overrule Fisher and rejected

an equal protection challenge to drainage district immunity. 521 N.W.2d

at 698–99. We affirmed the dismissal of a wrongful-death action arising

from a fatal boat accident blamed on an underwater obstruction allegedly

maintained by the drainage district. Id. at 697, 699. We noted after our

decision in Fisher, the legislature did not amend the Municipal Tort

Claims Act to include drainage districts within the definition of

municipalities subject to tort claims. Id. at 698. We “invoked the

principle that issues of statutory interpretation settled by the court and

not disturbed by the legislature have become tacitly accepted by the

legislature.” Id. Accordingly, we applied the doctrine of stare decisis. Id.

The plaintiffs argued this resulted in a violation of equal protection under

the Federal and Iowa Constitutions by creating separate classes of

victims: (1) persons injured by drainage districts who could not sue; and

(2) persons injured by other local government entities who could sue. Id.

at 698–99. But we rejected the constitutional challenge, stating,

“Because of the limited nature of a drainage district’s purposes and

powers, there is a rational basis for the classification.” Id. at 699.

Again in 2012, we reiterated our interpretation of chapter 468

precluding claims for money damages and limiting judicial relief to

mandamus. Chi. Cent. & Pac. R.R., 816 N.W.2d at 374. “Suits against

drainage districts ‘have been allowed only to compel, complete, or correct

the performance of a duty or the exercise of a power by those acting on

behalf of a drainage district.’ ” Id. at 378 (quoting Fisher, 369 N.W.2d at

429). We saw “no reason to abandon our previous holdings” particularly

given the legislature’s inaction, “indicating its tacit acceptance of

mandamus as the appropriate remedy for board inaction.” Id. at 374.

Our decision was unanimous, with one justice not participating. 18

We have long made clear that mandamus is the proper remedy to

adjudicate claims that a drainage district is violating a duty imposed by

an Iowa statute. See id.; Voogd v. Joint Drainage Dist. No. 3-11, 188

N.W.2d 387, 391 (Iowa 1971) (“A drain once completed is under the

supervision of the supervisors, and they can be compelled by mandamus

to maintain and keep it in repair.”); State ex rel. Iowa Emp’t Sec. Comm’n

v. Des Moines County, 260 Iowa 341, 346, 149 N.W.2d 288, 291 (1967)

(holding “[a]n action in mandamus is the proper remedy” to compel

drainage district to collect and pay state retirement and social security

taxes owing under Iowa Code chapters 97B and 97C).

We have specifically held downstream property owners may not

obtain other injunctive relief from drainage districts. Maben v. Olson,

187 Iowa 1060, 1063–64, 175 N.W. 512, 513–15 (1919) (reversing

injunction obtained by downstream property owners against drainage

district and holding damages from overflow were not a compensable

taking).

Another line of cases holds that political subdivisions, as creatures

of statute, cannot sue to challenge the constitutionality of state statutes.

See Bd. of Supervisors v. Dep’t of Revenue, 263 N.W.2d 227, 232–34

(Iowa 1978) (“Our cases have uniformly held a county lacks the ability to

mount a constitutional attack upon state legislative enactments.”

(quoting Warren County v. Judges of Fifth Judicial Dist., 243 N.W.2d 894,

897 (Iowa 1976))); Charles Hewitt & Sons Co. v. Keller, 223 Iowa 1372,

1377, 275 N.W. 94, 97 (1937) (“Counties and other municipal

corporations are, of course, the creatures of the legislature . . . and may

not question that power which brought it into existence . . . .”); McSurely

v. McGrew, 140 Iowa 163, 170, 118 N.W. 415, 419 (1908) (“[T]he

municipality itself cannot complain of any act of the Legislature 19

diminishing its revenues, amending its charter, or even dissolving it

entirely.”); see also In re A.W., 741 N.W.2d 793, 805 (Iowa 2007) (“The

county attorney’s authority to act on behalf of either the county or the

State is derived from the legislature, and he therefore may not challenge

the constitutionality of legislative acts in court while representing the

interests of the State.”).

This reasoning readily extends to a public utility such as the

DMWW, another creature of statute, and precludes its constitutional

challenges to chapter 468, which we have interpreted to provide broad

immunity for drainage districts. See Hous. Auth. of the Kaw Tribe of

Indians of Okla. v. City of Ponca City, 952 F.2d 1183, 1189–90 (10th Cir.

1991) (holding local housing authority could not bring due process or

equal protection challenge against another political subdivision acting

under state statute); Village of Arlington Heights v. Reg’l Transp. Auth.,

653 F.2d 1149, 1153 (7th Cir. 1981) (“[T]he principle that a municipality

may not challenge acts of the state under the Fourteenth Amendment

applies ‘whether the defendant is the state itself or another of the state’s

political subdivisions.’ ” (quoting City of South Lake Tahoe v. Cal. Tahoe

Reg’l Planning Agency, 625 F.2d 231, 233 (9th Cir. 1980))).

In sum, a century’s worth of precedent, including a case our court

decided unanimously just four years ago, precludes any remedy against

drainage districts other than mandamus. While one can critique the

reasoning of specific decisions, as one can criticize any decision this

court has made, the overall body of law supporting this proposition is

quite weighty and long-established.

B. Stare Decisis. Stare decisis “is a Latin term meaning ‘to stand

by things decided.’ ” State v. Miller, 841 N.W.2d 583, 586 (Iowa 2014)

(quoting Stare decisis, Black’s Law Dictionary (9th ed. 2009)). “From the 20

very beginnings of this court, we have guarded the venerable doctrine of

stare decisis and required the highest possible showing that a precedent

should be overruled before taking such a step.” McElroy v. State, 703

N.W.2d 385, 394 (Iowa 2005) (quoting Kiesau v. Bantz, 686 N.W.2d 164,

180 n.1 (Iowa 2004) (Cady, J., dissenting) (citing Hildreth v. Tomlinson, 2

Greene 360, 361 (Iowa 1849))). “Courts adhere to the holdings of past

rulings to imbue the law with continuity and predictability and help

maintain the stability essential to society.” Miller, 841 N.W.2d at 586.

As we have repeatedly recognized,

[i]t is of the greatest importance that the law should be settled. Fairness to the trial courts, to the legal profession, and above all to citizens generally demands that interpretations once made should be overturned only for the most cogent reasons . . . . Legal authority must be respected; not because it is venerable with age, but because it is important that courts, and lawyers and their clients, may know what the law is and order their affairs accordingly.

State v. Liddell, 672 N.W.2d 805, 813 (Iowa 2003) (alteration in original)

(quoting Stuart v. Pilgrim, 247 Iowa 709, 714, 74 N.W.2d 212, 215–16

(1956)). Iowans have been able to rely on the immunity of drainage

districts in choosing to form and operate those entities.

DMWW urges us to depart from stare decisis here. It relies on

cases such as Turner v. Turner, describing “our responsibility to

reconsider court-made rules when their continued vitality is

questionable.” 304 N.W.2d 786, 787 (Iowa 1981) (“When a rule is of

judicial origin, it is subject to judicial change.”); see also Koenig v.

Koenig, 766 N.W.2d 635, 646 (Iowa 2009) (abandoning common law

distinction between invitees and licensees in premises liability cases).

Those decisions, however, did not involve judicial interpretation of

statutes. “The rule of stare decisis ‘is especially applicable where the 21

construction placed on a statute by previous decisions has been long

acquiesced in by the legislature . . . .’ ” In re Estate of Vajgrt, 801 N.W.2d

570, 574 (Iowa 2011) (quoting Iowa Dep’t of Transp. v. Soward, 650

N.W.2d 569, 574 (Iowa 2002)). That is exactly what we have here. See

Chi. Cent. & Pac. R.R., 816 N.W.2d at 374. We reiterated our reliance on

“the venerable principles of stare decisis and legislative acquiescence” in

the context of interpreting statutes in Doe v. New London Community

School District, stating,

[W]e presume the legislature is aware of our cases that interpret its statutes. When many years pass following such a case without a legislative response, we assume the legislature has acquiesced in our interpretation.

.... . . . Overall, we think our legislature would be quite surprised to learn if we decided to reverse course and take a different position under the guise of statutory interpretation.

848 N.W.2d 347, 355, 356 (Iowa 2014) (quoting Ackelson v. Manley Toy

Direct, L.L.C., 832 N.W.2d 678, 688 (Iowa 2013) (citations omitted)).

Still, the principles of stare decisis and legislative acquiescence in

combination “are not absolute,” and we may overrule prior decisions

“when error is manifest, including error in the interpretation of statutory

enactments.” McElroy, 703 N.W.2d at 395 (quoting Miller v. Westfield Ins.

Co., 606 N.W.2d 301, 306 (Iowa 2000)). For example, in McElroy, we

reinterpreted the Iowa Civil Rights Act to hold that a plaintiff seeking

money damages is entitled to a jury trial, overruling Smith v. ADM Feed

Corp., 456 N.W.2d 378 (Iowa 1990). McElroy, 703 N.W.2d at 395. Our

court was narrowly divided in Smith, with four justices dissenting. Id. at

393–94 (citing Smith, 456 N.W.2d at 387–88 (Carter, J., dissenting)). We

observed that the Smith dissent predicted problems resulting from the

majority’s interpretation that experience revealed in practice and that 22

subsequent changes in federal law “compounded the problems the

dissent foretold.” Id. at 394. By contrast, our prior holdings that the

DMWW seeks to overturn were unanimously reaffirmed by our court in

1994 and 2012 without any intervening changes in the law underlying

the immunity.

C. DMWW’s Arguments for Revisiting Our Precedent. We next

address whether DMWW has provided compelling reasons for overruling

our century of precedent interpreting chapter 468 that the legislature

has left intact. DMWW raises several arguments in this regard. First,

DMWW argues immunity should not apply in a water pollution case in

light of the evolution in the understanding of environmental

contamination. Second, it contends the enactment of the home rule

amendment to our state constitution in 1978 undermines the rationale

for the immunity. Third, it claims the nitrate contamination at issue

rebuts the public health rationale for drainage districts. Fourth, it points

to decisions of other states allowing tort claims against drainage

districts. Finally, it argues the immunity is unconstitutional as applied.

We address these arguments in turn.

1. The evolution of environmental law. The DMWW notes that none

of our drainage district immunity decisions involved a claim for water

pollution. According to DMWW, immunity was established decades

before the environmental movement raised consciousness about

protecting water quality. Thus, the DMWW argues the historical basis

for immunity does not apply to pollution claims.

Upon our review, we disagree. Changes in environmental laws

have not undermined the basis for the immunity—the limited scope and

powers of drainage districts as entities. Our cases, old and new, closed

the door to tort claims against drainage districts “under any state of 23

facts.” Fisher, 369 N.W.2d at 430. We applied the immunity in Fisher

even though the drainage district in that case breached its statutory duty

to maintain and repair the underground drain tile line, causing the

recurring floods in the plaintiff homeowner’s basement. Id. at 427–28.

We again applied the immunity four years ago, unanimously rejecting a

railroad’s reimbursement claim for repairing a blocked tile drain that the

drainage district was statutorily obligated to maintain. Chi. Cent. & Pac.

R.R., 816 N.W.2d at 374. In both cases, we reaffirmed drainage district

immunity even though the harm to the plaintiff resulted from the

drainage district’s breach of its statutory duty to repair drain tiles.

Pollution claims do not present a stronger case to impose liability.

Chapter 468 imposes no duty on the districts to filter out nitrates.

Rather, chapter 468 simply requires drainage districts to maintain

drainage systems to keep the water flowing to drain lands. See, e.g.,

Iowa Code § 468.126(1)(a) (requiring repairs as necessary to “restore or

maintain a drainage . . . improvement in its original efficiency or

capacity”). No provision in chapter 468 authorizes drainage districts to

mandate changes in farming practices to reduce fertilizer runoff or to

assess farmers for the costs of removing nitrates from waters flowing

through agricultural drainage systems. It would therefore seem odd to

make an exception to drainage district immunity in this one area.

The defendants’ lack of statutory authority to regulate farmer

nitrate use cuts against revisiting our long-standing precedent, which

rests upon the limited existence and powers of drainage districts.

“Liability follows control . . . .” Estate of McFarlin v. State, 881 N.W.2d

51, 64 (Iowa 2016). A party in control of an activity can take precautions

to reduce the risk of harm to others. See McCormick v. Nikkel & Assocs.,

Inc., 819 N.W.2d 368, 374 (Iowa 2012) (“The reason is simple: The party 24

in control of the work site is best positioned to take precautions to

identify risks and take measures to improve safety.”); Allison by Fox v.

Page, 545 N.W.2d 281, 283 (Iowa 1996) (“The general rule and exceptions

reveal a common principle: liability is premised upon control.”); Schlotfelt

v. Vinton Farmers’ Supply Co., 252 Iowa 1102, 1113, 109 N.W.2d 695,

701 (1961) (declining to issue injunction in nuisance action for foot

traffic entering plaintiff’s business because “defendant . . . should not be

compelled to control its customers and in any event could not do so”);

see also Okpalobi v. Foster, 244 F.3d 405, 427 (5th Cir. 2001) (reversing

injunction against government officials who “have no power to redress

the asserted injuries”); McDaniel v. Bd. of Educ., 956 F. Supp. 2d 887,

894 (N.D. Ill. 2013) (rejecting equitable claims against parties who would

“lack the power to carry out the injunction”); State v. Lead Indus. Ass’n,

951 A.2d 428, 449–50 (R.I. 2008) (holding public nuisance claim for

contamination required proof defendants were in control over the

instrumentality causing the alleged nuisance at the time the damage

occurred). These basic principles of tort law favor preserving, not

abrogating, the immunity for drainage districts.

While attitudes toward the environment may differ today from

when the first drainage tiles were placed generations ago, tort claims

based on alleged pollution are nothing new. “Tort claims challenging

environmental pollution can be traced back to at least the seventeenth

century . . . .” Freeman v. Grain Processing Corp., 848 N.W.2d 58, 66

(Iowa 2014) (reviewing history of common law and statutory remedies for

pollution). Iowa tort law has allowed nuisance claims to recover for

environmental contamination for over a century. See id. at 67 (noting

that in Bowman v. Humphrey, 132 Iowa 234, 235–36, 243, 109 N.W.

714, 714–15, 717 (1906), “the plaintiff landowner successfully sued a 25

creamery on a nuisance theory for depositing refuse in a running stream

that injured the lower riparian owner”). Those tort claims have coexisted

with drainage district immunity, weakening the DMWW’s argument that

changes in environmental laws support abrogating that immunity.

In Freeman, we noted “the 1960s and 1970s saw the development

of significant statutory approaches to pollution.” 848 N.W.2d at 68.

These included the Federal Clean Air Act (CAA) and Clean Water Act

(CWA) as well as Iowa Code chapter 455B, the state counterpart to those

enactments. See id. at 69–72 (contrasting statutory and common law

remedies for pollution). We held the CAA and Iowa Code chapter 455B

did not preempt state common law claims by neighboring private

property owners against a private corn milling facility. Id. at 63–64, 94.

We noted, “[T]he EPA has created a vast regulatory structure to control

the emission of air pollutants, including technological standards, health

standards, risk levels, and enforcement provisions . . . .” Id. at 68

(quoting Alexandra B. Klass, State Innovation and Preemption: Lessons

from State Climate Change Efforts, 41 Loy. L.A. L. Rev. 1653, 1686

(2008)). The same is true for water pollution addressed under the CWA.

See Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 419, 131 S. Ct.

2527, 2535, 180 L. Ed. 2d 435, 444 (2011) (“[The CWA] installed an all-

encompassing regulatory program, supervised by an expert

administrative agency, to deal comprehensively with interstate water

pollution.”). Yet this proliferation of environmental laws has not led us

or the legislature to revisit our precedent limiting judicial remedies

against drainage districts.

Significantly, Iowa Code section 455E.6 expressly immunizes

farmers who comply with fertilizer label instructions from liability for

nitrate contamination, including money damage claims or cleanup 26

costs. 5 We defer to the legislature whether to reassess that policy choice.

See Galloway v. State, 790 N.W.2d 252, 259 (Iowa 2010) (Cady, J.,

dissenting) (“[P]ublic policy is best left to our legislative branch of

government to decide as representatives of the people.”). With that

statutory immunity for nitrate costs on the books, it is difficult to argue

our precedents immunizing drainage districts should be overruled.

Indeed, because farmers are assessed for the costs of drainage districts,

one might characterize state-law nitrate-based claims against drainage

districts as a way to get backdoor relief against farmers that the

legislature has specifically barred through the front door.

Drainage districts provide a conduit for draining water. In other

contexts, the legislature has imposed cleanup obligations on entities

operating conduits carrying contaminated water. See, e.g., Iowa Code

5Iowa Code section 455E.6 provides, This chapter supplements other legal authority and shall not enlarge, restrict, or abrogate any remedy which any person or class of persons may have under other statutory or common law and which serves the purpose of groundwater protection. An activity that does not violate chapter 455B or 459, subchapters II and III, does not violate this chapter. In the event of a conflict between this section and another provision of this chapter, it is the intent of the general assembly that this section prevails. Liability shall not be imposed upon an agricultural producer for the costs of active cleanup, or for any damages associated with or resulting from the detection in the groundwater of any quantity of nitrates provided that application has been in compliance with soil test results and that the applicator has properly complied with label instructions for application of the fertilizer. Compliance with the above provisions may be raised as an affirmative defense by an agricultural producer. Liability shall not be imposed upon an agricultural producer for costs of active cleanup, or for any damages associated with or resulting from the detection in the groundwater of pesticide provided that the applicator has properly complied with label instructions for application of the pesticide and that the applicator has a valid appropriate applicator’s license. Compliance with the above provisions may be raised as an affirmative defense by an agricultural producer. 27

§ 358.16 (providing sanitary districts with the power to provide for

sewage disposal); id. § 455B.307 (prohibiting dumping solid waste into

any place other than sanitary disposal project); see also id. § 455B.186

(“A pollutant shall not be disposed of by dumping, depositing, or

discharging such pollutant into any water of the state . . . except . . .

adequately treated sewage . . . .”); id. § 455B.173 (instructing agency to

set forth water standards for sewage systems and waterworks); Iowa

Admin. Code r. 567—62.3 (setting forth treatment standards for publicly

owned treatment works and sewage disposal systems). This indicates

our legislature has responded to changing environmental attitudes.

Unlike with sanitary districts, the Iowa legislature has not imposed

duties on drainage districts to treat contaminants. 6

“[A] drainage district is a legislative creation which has no rights or

powers other than those found in statutes which give and sustain its

life.” State ex rel. Iowa Emp’t Sec. Comm’n, 260 Iowa at 345, 149 N.W.2d

at 291. Iowa Code chapter 468 empowers drainage districts to

restore or maintain a drainage or levee improvement in its original efficiency or capacity, and for that purpose may remove silt, debris, repair any damaged structures, remove weeds and other vegetable growth, and whatever else may be needed to restore or maintain such efficiency or capacity to prolong its useful life.

Iowa Code § 468.126(1)(a) (emphasis added). An improvement is further

defined as “a project intended to expand, enlarge, or otherwise increase

the capacity of any existing ditch, drain, or other facility above that for

6The fact the CWA expressly exempts agricultural runoff further undermines the

view that changing environmental attitudes warrants revisiting our precedent on drainage district immunity. 33 U.S.C. § 1362(14) (defining “point source” to exclude “agricultural storm water discharges and return flows from irrigated agriculture”). No court or agency to date has ruled agricultural drainage systems constitute point sources regulated under the CWA. 28

which it was designed.” Id. § 468.126(4). Thus, under the express

language of the statute, the drainage district is empowered only to

“restore,” “maintain,” or “increase” the flow of water through the drainage

system. Id. § 468.126(1), (4). The legislature has not authorized

drainage districts to assess costs to redesign existing drainage systems to

abate nitrates. This further supports our conclusion that the changing

environmental attitudes should not undermine our long-standing

precedents limiting judicial relief against drainage districts.

Drainage districts and their trustees have presumably relied on

our long-standing precedent recognizing their immunity. One practical

result of that reliance is the lack of liability insurance to cover defense

costs or indemnify judgments. 7 Perhaps some citizens would have

declined to serve as drainage district trustees if they knew they could

face uninsured litigation liability. Public property, including funds in

bank accounts necessary for the general purpose of the public entity, is

exempt from execution. See Reg’l Util. Serv. Sys. v. City of Mount Union,

874 N.W.2d 120, 127 (Iowa 2016) (applying Iowa Code § 627.18).

Chapter 468 contains no mechanism allowing drainage districts to raise

7Other courts have noted that reliance on stare decisis affects decisions whether to purchase liability insurance. See, e.g., State v. Peeler, 140 A.3d 811, 857 (Conn. 2016) (Zarella, J., dissenting) (stating courts should evaluate whether overruling precedent would “cause a significant reordering of individual conduct, including risk shifting arrangements such as insurance policies”); City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d 1099, 1144 (Ill. 2004) (rejecting city’s public nuisance claim against firearm manufacturers, noting “the expectations of potential defendants, both business entities and individuals, and their insurers would be upset substantially if an entirely new scheme of liability were imposed”); Crist v. Hunan Palace, Inc., 89 P.3d 573, 580 (Kan. 2004) (declining to overrule precedent, noting “[i]nsureds and insurers alike ha[d] relied upon” the prior decisions); Paige v. City of Sterling Heights, 720 N.W.2d 219, 228 (Mich. 2006) (recognizing “where an entire class of individuals or businesses purchase insurance and another entire class does not in reliance on a decision by this Court, this may be viewed as the sort of reliance that could cause ‘practical real-world dislocations’ ”). 29

taxes to pay off a judgment for pollution costs, and even taxes assessed

for a drainage improvement are subject to veto by a majority of

landowners. See Iowa Code § 468.126(4)(c). By contrast, other statutes

allow cities and counties to raise taxes to pay off judgments. 8 If the

legislature had intended to allow tort claims against drainage districts, it

presumably would have provided a funding mechanism to pay

judgments, as it did for cities and counties. 9 The absence of such a

provision in chapter 468 reinforces our long-standing interpretation

precluding tort claims against drainage districts under any set of facts.

Another reason to decline the DMWW’s invitation to abrogate

immunity for pollution claims is the absence of any evidence or argument

that drainage districts are the cheapest cost avoider for nitrate

contamination. The drainage systems were not designed or intended to

filter out nitrates. DMWW does not suggest it would be cheaper for the

drainage districts to remove nitrates from multiple locations than for

8Iowa Code section 626.24 authorizes cities to levy taxes to pay off judgments, and provides in relevant part, If no property of a municipal corporation again which execution has issued can be found, or if the judgment creditor elects not to issue execution against such corporation, a tax must be levied as early as practicable to pay off the judgment. See also Iowa Code § 331.430 (authorizing debt service funded by county to pay judgments). There are no such statutory provisions allowing drainage districts to levy taxes to pay tort judgments. 9As counsel for the DMWW acknowledged at oral argument, further litigation

would be required to allocate liability among numerous drainage districts. Such cost sharing could be further complicated by remonstrance petitions objecting to a drainage district’s tax assessments. See Iowa Code § 468.126(4)(c). By contrast, the DMWW can spread its cost of nitrate removal by raising its water rates. The Illinois Supreme Court aptly observed that when “a system already exists for the rational allocation of costs . . . there is little reason for a court to impose an entirely new system of allocation.” Beretta U.S.A. Corp., 821 N.E.2d at 1145. Moreover, “the legislature is better able to consider [the] need for cost-recovery legislation” in response to an alleged ongoing public nuisance. Id. at 1147. 30

DMWW to remove nitrates from a single location. Economic theory

underlying tort law favors placing liability on the party who can avoid the

harm at the least cost. See Holtz v. J.J.B. Hilliard W.L. Lyons, Inc., 185

F.3d 732, 743 (7th Cir. 1999) (explaining that rules should be set to

impose liability on the party who is the “least-cost avoider”—that is, the

party who can avoid the mistake at the lowest price); Beyond the Garden

Gate, Inc. v. Northstar Freeze-Dry Mfg., Inc., 526 N.W.2d 305, 310 (Iowa

1995) (noting that imposing liability on the “least cost risk avoider . . .

minimize[s] the total loss to society” (quoting James J. White & Robert S.

Summers, Uniform Commercial Code § 11–5, at 539–40 (3d ed. 1988)));

Guido Calabresi, The Costs of Accidents: A Legal and Economic Analysis

135 & n.1 (1970) (arguing that the burden of a legal rule should be

placed on the party who is best positioned and motivated to avoid the

harm in the future). The least-cost avoider for removing nitrates from

drinking water may well be the DMWW, which already bears the

statutory obligation to provide safe water for its customers under the

Safe Drinking Water Act and its Amendments, 42 U.S.C. §§ 300f–300j.

The DMWW does not claim otherwise and, indeed, itself at times has

lawfully deposited back into the Raccoon River the very nitrates it

removed. 10

The argument has been made that “case-by-case adjudication” by

the Iowa courts is superior to “legislatively imposed command and

control regulation.” We do not share that view. Affected parties are

being subjected to “commands” and “controls” whether these come from

a legislature, regulatory agency, or a court. The difference is that statutes

10Iowa Dep’t Nat. Res., National Pollutant Discharge Elimination System

(NPDES) Permit No. 7727000, at 3 (May 1, 2015). 31

and regulations have been approved by one or more elected branches of

government who are responsible to the people. Also, these statutes and

regulations usually have been developed by parties with expertise, rather

than generalist judges. And they are enacted and published in advance

so the public knows what the rules are. Case-by-case adjudication, on

the other hand, offers none of those advantages.

The Supreme Court, in a decision holding the CAA supplanted

federal common law claims asserted by several states and private parties

suing over power plant emissions, compared the institutional

competency of courts and regulators in addressing pollution as follows:

It is altogether fitting that Congress designated an expert agency, here, EPA, as the best suited to serve as primary regulator of greenhouse gas emissions. The expert agency is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunctions. Federal judges lack scientific, economic, and technological resources an agency can utilize in coping with issues of this order. Judges may not commission scientific studies or convene groups of experts for advice, or issue rules under notice-and-comment procedures inviting input by any interested person, or seek the counsel of regulators in the States where the defendants are located. Rather, judges are confined by a record comprising the evidence the parties present.

Am. Elec. Power Co., 564 U.S. at 428, 131 S. Ct. at 2539–40, 180

L. Ed. 2d at 450 (citation omitted). For all these reasons, we are not

persuaded to overrule our precedent in light of heightened environmental

concerns.

2. The home rule amendment. The DMWW next argues the

enactment of the home rule amendment in 1978 broadened the police

powers of county government. That amendment granted counties “home

rule power and authority, not inconsistent with the laws of the general

assembly.” Iowa Const. art. III, § 39A; see also Worth Cty. Friends of 32

Agric. v. Worth County, 688 N.W.2d 257, 265 (Iowa 2004) (recognizing the

“superior authority of the General Assembly” (quoting Bechtel v. City of

Des Moines, 225 N.W.2d 326, 332 (Iowa 1975))). Iowa Code chapter 468,

however, remained unchanged. This case turns on the duties and

powers of drainage districts. The county supervisors merely act in a

representative capacity as trustees of the drainage districts under

chapter 468. Nothing in the home rule amendment broadens the

supervisors’ operational authority over drainage districts or gives

drainage districts the power to regulate farming practices or water

quality. We have repeatedly reaffirmed the immunity of drainage

districts well after the enactment of the home rule amendment because

drainage districts have limited powers. See Chi. Cent. & Pac. R.R., 816

N.W.2d at 374; Fisher, 369 N.W.2d at 430. Drainage districts lack the

broad police powers exercised by counties and other political

subdivisions.

Home rule powers can only be exercised in a manner consistent

with acts of the general assembly. See Iowa Const. art. III, § 39A. A

state statute trumps inconsistent local acts. The DMWW’s position that

the home rule amendment abrogated drainage district immunity conflicts

with chapter 468 as we have interpreted it for over a century. That

provides another reason for declining to read into the home rule

amendment any intent to overrule our statutory interpretation of chapter

468 immunizing drainage districts.

We also note the home rule amendment prohibits local

governments from assessing taxes without legislative authorization. Id.

(“Counties . . . shall not have power to levy any tax unless expressly

authorized by the general assembly.”). The legislature has expressly

allowed counties to levy taxes to pay off tort judgments. See Iowa Code 33

§ 626.24. No such provision allows drainage districts to levy taxes to pay

off tort judgments. The legislature has authorized drainage districts to

levy taxes solely to construct and maintain drainage systems to drain

water. Id. § 468.127. The limited powers of drainage districts have

remained unchanged since the enactment of the home rule amendment.

3. Public health. The DMWW also contends that its allegations of

nitrate contamination should eliminate the historical immunity of

drainage districts because they rebut the statutory purpose of drainage

districts to benefit “public health.” It is true that Iowa Code section

468.2 codifies a legislative presumption that the “drainage from

agricultural lands . . . shall be presumed to be a public benefit and

conducive to the public health, convenience, and welfare.” Id. § 468.2(1).

We draw a different lesson from that language, however, than DMWW.

The legislature having adopted a legislative presumption that drainage

districts are beneficial, it is not our role to adopt a different presumption.

Further, DMWW disregards two additional benefits of draining lands

presumed by the legislature—the public’s “convenience[] and welfare.”

Id. Drainage districts convert economically unproductive swamps into

tillable farmland.

Ultimately, this case is about who pays for nitrate removal from

the drinking water that reaches our kitchen faucets. The DMWW does

not claim nitrate levels render the Raccoon River unsafe for swimming or

fishing. All parties agree the DMWW removes unsafe levels of nitrates

from the water it provides to its customers. The resulting cost to its

customers, according to defendants, is about one cent per day added to

their water bills. The DMWW does not challenge that estimate. It is for

the legislature to decide whether to reallocate the costs of nitrate

reduction. See In re Estate of Whalen, 827 N.W.2d 184, 194 (Iowa 2013) 34

(declining to change the meaning of a statute in the guise of

interpretation and suggesting policy arguments for the change be

directed to the legislature).

4. The decisions of other state courts. The DMWW cites decisions

from a handful of states allowing private persons to sue drainage

districts in tort. None involved claims by a water utility or other public

entity. Roark v. Macoupin Creek Drainage Dist., 738 N.E.2d 574, 579–80

(Ill. App. Ct. 2000); Gerbers, Ltd. v. Wells Cty. Drainage Bd., 608 N.E.2d

997, 998, 1000 (Ind. Ct. App. 1993); Dougan v. Rossville Drainage Dist.,

757 P.2d 272, 279 (Kan. 1988); Lezina v. Fourth Jefferson Drainage Dist.,

190 So. 2d 97, 100 (La. Ct. App. 1966); Landview Landscaping, Inc. v.

Minnehaha Creek Watershed Dist., 569 N.W.2d 237, 240 (Minn. Ct. App.

1997); Parriott v. Drainage Dist. No. 6, 410 N.W.2d 97, 99–100 (Neb.

1987); Kilburn v. Fort Bend Cty. Drainage Dist., 411 S.W.3d 33, 36–37

(Tex. App. 2013); Holytz v. City of Milwaukee, 115 N.W.2d 618, 625 (Wis. 1962), superseded by statute as recognized by Milwaukee Metro.

Sewerage Dist. v. City of Milwaukee, 691 N.W.2d 658, 677 (Wis. 2005)

(noting the adoption of statute codifying immunity for discretionary

functions); see also Ark. State Highway Comm’n v. Steed, 411 S.W.2d 17,

21 (Ark. 1967) (granting immunity for tort actions against “improvement

districts” but allowing injunctive relief and compensation for taking

private property).

In any event, these cases are inapposite because the immunity

afforded drainage districts in Iowa is based on special features of

drainage districts under Iowa law and specific determinations of our

legislature in Iowa Code chapter 468. Fisher, 369 N.W.2d at 430. We

also have held that drainage districts are not municipalities subject to

suit under Iowa’s Municipal Tort Claims Act. Id. That other states 35

permit tort claims against drainage districts does not persuade us to

overrule our holdings to the contrary. 5. The constitutionality of broad immunity for drainage districts.

The DMWW lastly argues broad immunity in favor of drainage districts is

unconstitutional. We have confronted this argument before. In Gard, we

applied the rational-basis test 11 and rejected state and federal equal

protection challenges to drainage district immunity from tort liability.

521 N.W.2d at 698–99. We denied recovery to the families of two boaters

who died when their watercraft struck an underwater concrete deflector

jointly maintained by the drainage district in the Little Sioux River. Id. at

697. We are not persuaded the DMWW’s claims over the cost of treating

drinking water are more compelling than the wrongful-death claims at

issue in Gard. We apply Gard to reject the DMWW’s equal protection

claims.

We also reject the DMWW’s “takings” claim. The takings clause

provides, “Private property shall not be taken for public use without just

compensation first being made . . . .” Iowa Const. art. I, § 18 (emphasis

added). No private property is involved in this case. To the contrary, we

have a dispute among various public subdivisions that only exist by the

grace of the Iowa General Assembly.

The drainage districts have not unconstitutionally deprived the

DMWW of any property. The Raccoon River is owned by the State of Iowa

in trust for the public. See Estate of McFarlin, 881 N.W.2d at 63. The

11The DMWW argues we should apply strict scrutiny, but fails to cite any

authority applying strict scrutiny to a constitutional claim asserted by one public entity against another. Strict scrutiny is unwarranted when reviewing claims challenging a state’s allocation of authority among political subdivisions. Herriman v. Bell, 590 F.3d 1176, 1191 (10th Cir. 2010); Green v. City of Tucson, 340 F.3d 891, 902–03 (9th Cir. 2003). 36

DMWW does not own the water flowing in the Raccoon River, nor was it

denied access to that water. “This case involves public water supplies,

not private property. There can be no taking of a public resource . . . .”

Del. Cty. Safe Drinking Coal., Inc. v. McGinty, No. 07–1782, 2008 WL

2229269, at *1 n.1 (E.D. Penn. May 27, 2008). In City of Trenton v.

New Jersey, the United States Supreme Court rejected a takings claim

under the Fifth Amendment. 262 U.S. 182, 191–92, 43 S. Ct. 534, 538,

67 L. Ed. 937, 942–43 (1923). The City of Trenton operated a water

utility and challenged the state’s license fee for diverting river water as

an unconstitutional taking. Id. at 183, 43 S. Ct. at 535, 67 L. Ed. at

939–40. The Court held that regardless of whether the city’s water

treatment facility was a proprietary or governmental function, the city

could not assert a takings claim against the state. Id. at 191–92, 43

S. Ct. at 538, 67 L. Ed. at 943; see also City of Hugo v. Nichols, 656 F.3d

1251, 1257 (10th Cir. 2011) (applying City of Trenton and its progeny to

hold municipality could not “sue its parent state under a substantive

provision of the Constitution”); Bd. of Levee Comm’rs of the Orleans Levee

Bd. v. Huls, 852 F.2d 140, 142–43 (5th Cir. 1988) (holding political

subdivisions cannot assert just compensation claims against the state).12

12The Court’s later holding in Gomillion v. Lightfoot does not undermine City of Trenton’s application here. Gomillion, 364 U.S. 339, 347, 81 S. Ct. 125, 130, 5 L. Ed. 2d 110, 116–17 (1960) (allowing racial gerrymandering challenge to state statute altering boundaries of city). Gomillion stated that the analysis of City of Trenton and its progeny was confined to “the particular prohibitions of the Constitution considered in those cases.” Gomillion, 364 U.S. at 344, 81 S. Ct. at 128, 5 L. Ed. 2d at 115. City of Trenton specifically dealt with the takings clause, at issue in this case. Thus, Gomillion did not narrow City of Trenton in a way relevant to our analysis. More recently, the Supreme Court approvingly cited City of Trenton in Ysursa v. Pocatello Education Association when rejecting a challenge to Idaho law banning payroll deductions for political activities for public employees. Ysursa, 555 U.S. 353, 362–63, 129 S. Ct. 1093, 1100–01, 172 L. Ed. 2d 770, 779–80 (2009) (noting political subdivisions are subordinate government entities and have “no privileges or immunities under the federal constitution which [they] may invoke in opposition to the will of its 37

We reach the same conclusion under the Iowa Constitution. If the

DMWW, a public entity, cannot assert a takings claim against the state,

nor can it assert such a claim against another political subdivision of the

state—a drainage district created by state statute. 13

In Maben, we concluded downstream private landowners were not

entitled to recover eminent domain payments from a drainage district for

harm to their private property caused by the water flow. 187 Iowa at

1063–64, 175 N.W. at 513–14; see also Monona County, 229 Iowa at 169–

70, 294 N.W. at 311 (reversing injunction against drainage district to

abate nuisance and holding drainage district “cannot create a nuisance

while operating within the ambit of powers constitutionally delegated”).

The DMWW has no greater right to such payments than a private

downstream property owner. We do not require compensation for an

alleged regulatory taking when a statute permits the challenged conduct

that “substantially advances a legitimate state interest.” Hunziker v.

State, 519 N.W.2d 367, 370 (Iowa 1994) (citing Lucas v. S.C. Coastal

Council, 505 U.S. 1003, 1024, 112 S. Ct. 2886, 2897, 120 L. Ed. 2d 798, _________________________ creator” (quoting Williams v. Mayor of Baltimore, 289 U.S. 36, 40, 53 S. Ct. 431, 432, 77 L. Ed. 1015, 1020 (1933))). 13A state political subdivision may have a takings claim against the federal government because the federal government is a separate sovereign. United States v. 50 Acres of Land, 469 U.S. 24, 31, 105 S. Ct. 451, 455–56, 83 L. Ed. 2d 376, 383 (1984) (concluding that property held by local government could be considered “private” property for takings purposes under the Fifth Amendment). Those federal takings cases are inapposite to a takings claim by a political subdivision against the sovereign that created it or another subdivision created by the same state government. See United States v. Carmack, 329 U.S. 230, 242 n.12, 67 S. Ct. 252, 258 n.12, 91 L. Ed. 209, 217 n.12 (1946) (“When . . . a sovereign state transfers its own public property from one governmental use to another, . . . a like obligation does not arise to pay just compensation for it.”); see also Texas Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 645 & n.2 (Tex. 2004) (concluding city lacked takings claim against state because state had superior interest in roads and recognizing federal cases inapposite because “[t]he relationship between a city and state, which are not separate sovereigns, is not analogous to that between a federal government and a state”). 38

818 (1992)). The legislature has declared that the “drainage of surface

waters from agricultural lands . . . shall be presumed to be a public

benefit and conducive to the public health, convenience, and welfare.”

Iowa Code § 468.2(1). We give effect to that legislative presumption. See

In re Det. of Geltz, 840 N.W.2d 273, 275–76 (Iowa 2013) (relying on

codified legislative findings to interpret statute); State ex rel. Iowa Emp’t

Sec. Comm’n, 260 Iowa at 346, 149 N.W.2d at 391 (“In fact the drainage

of surface waters from agricultural or other lands, or their protection

from overflow, is presumed to be a public benefit and conducive to the

public health, convenience and welfare.”). 14 Chapter 468 substantially

advances a legitimate state interest, thereby defeating any regulatory

taking claim by the DMWW.

We also conclude the DMWW cannot assert constitutional claims

against the drainage districts under the inalienable rights clause of our

state constitution. That provision protects the rights of citizens and does

not provide a basis for one public entity to sue another over the use of

state-owned assets. See City of Sioux City v. Jacobsma, 862 N.W.2d 335,

348–53 (Iowa 2015) (reviewing history and scope of inalienable rights

clause of the Iowa Constitution). The DMWW relies on Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168

(Iowa 2004), for its constitutional claims. That case is distinguishable as

involving constitutional claims raised by private citizens. See id. at 170.

Joseph and Linda Gacke had owned their farmstead since 1974. Id. at

14We note the legislature did not state that the presumption in section 468.2(1)

is rebuttable, as it has expressly provided as to other statutory presumptions. See, e.g., Neighbors v. Iowa Elec. Light & Power Co., 175 N.W.2d 97, 99 (Iowa 1970) (applying Iowa Code section 489.15 (1962), which stated “[i]n case of injury to any person or property by any such transmission line, negligence will be presumed . . . but this presumption may be rebutted by proof”). 39

170–71. Two decades later, Pork Xtra built hog confinement facilities

across the road. Id. at 171. The Gackes filed a nuisance action, and

Pork Xtra asserted the statutory immunity for animal feeding operations

in Iowa Code section 657.11(2) (1999) as an affirmative defense. Id. The

district court struck the defense as an unconstitutional taking and

entered judgment in favor of the Gackes on their nuisance theory. Id.

We “conclude[d] the statutory immunity cannot constitutionally deprive

private property owners of compensation for the decreased value of their

property due to the statutory imposition of an easement for the operation

of an animal feeding operation as a nuisance.” Id. at 175 (emphasis

added). As noted, our takings clause, by its terms, protects private

property. We found the evidence sufficient to establish the hog lot

interfered with the Gackes’ use and enjoyment of their privately owned

homestead. Id. at 180–81. By contrast, the DMWW alleges injury to

public waters used by a public utility, rather than any interference with

private property.

In Gacke, we further held the immunity was unconstitutional

under the inalienable rights clause of the Iowa Constitution, article I,

section 1. Id. at 179. We reiterated that provision “was intended to

secure citizens’ pre-existing common law rights (sometimes known as

‘natural rights’) from unwarranted government restrictions.” Id. at 176.

We concluded the immunity unconstitutionally hindered the Gackes’

private property rights for the benefit of the defendant’s private business

operated as a nuisance. Id. at 179.

We have never struck down a statutory immunity under the

inalienable rights clause or as an unconstitutional taking in a dispute

between public entities over use of a public resource. We decline to do so

here. Nor will we find a due process or equal protection violation in a 40

dispute between public entities. As set forth above, our prior holdings

circumscribe the ability of the DMWW, a public utility created by the

Iowa legislature, to challenge the constitutionality of the immunity for

drainage districts provided in Iowa Code chapter 468. See In re A.W.,

741 N.W.2d at 805; Bd. of Supervisors, 263 N.W.2d at 232–34; Keller,

223 Iowa at 1377, 275 N.W. at 97; McSurely, 140 Iowa at 170, 118 N.W.

at 419; see also S. Macomb Disposal Auth. v. Township of Washington,

790 F.2d 500, 505 (6th Cir. 1986) (“For the same reasons, a political

subdivision of a state cannot challenge the constitutionality of another

political subdivision’s ordinance on due process and equal protection

grounds.”); Hous. Auth. of Kaw Tribe of Indians of Okla., 952 F.2d at

1189–90; Village of Arlington Heights, 653 F.2d at 1153; City of

New Rochelle v. Town of Mamaroneck, 111 F. Supp. 2d 353, 364

(S.D.N.Y. 2000) (“[A] municipal corporation, in its own right, receives no

protection from the Equal Protection or Due Process Clauses vis-à-vis its

creating state.” (quoting S. Macomb Disposal Auth., 790 F.2d at 505));

City of Evanston v. Reg’l Transp. Auth., 559 N.E.2d 899, 907 (Ill. App. Ct.

1990) (“The reasoning that political subdivisions have only those rights

which are conferred on them by the state applies logically to challenges

brought under the United States Constitution by political subdivisions

not only to state statutes or other state action but to the action of other

political subdivisions.”).

It makes sense to limit litigation between public entities because

the people of Iowa foot the bill for both sides. That is why the legislature

enacted Iowa Code section 679A.19 to prohibit litigation between state

departments, boards, and commissions. Iowa Individual Health Benefit

Reins. Ass’n v. State Univ. of Iowa, 876 N.W.2d 800, 811 (Iowa 2016)

(citing H.F. 594, 58th G.A., Reg. Sess., explanation (Iowa 1959)). We see 41

no cogent reason to overrule our precedent holding that subordinate

public entities cannot challenge the constitutionality of statutes enacted

by the legislature that created them.

Even if we regarded the DMWW as a private entity and accepted its

factual allegations as true, no compensable takings claim is alleged

under the Iowa Constitution. The DMWW was not denied access to the

Raccoon River; rather, it simply must expend additional funds for nitrate

removal. The DMWW cites no case supporting the proposition that the

presence of nitrates in raw river water above the level allowed for

drinking water in homes results in a compensable taking of a riparian

landowner’s property right. The cases hold otherwise. See, e.g.,

Mildenberger v. United States, 643 F.3d 938, 948 (Fed. Cir. 2011)

(affirming summary judgment dismissing Fifth Amendment takings claim

by riparian owner for water pollution); Ancarrow v. City of Richmond, 600

F.2d 443, 448 (4th Cir. 1979) (holding private marina owner had “no

riparian right or other property right which was ‘taken’ by the city’s

pollution of the James River”). The DMWW’s claim that putting nitrates

into the Raccoon River creates a public nuisance is at odds with its own

practice of depositing those nitrates back into the same river. Under the

circumstances, it has failed to state an actionable takings claim under

the Iowa Constitution.

IV. Conclusion.

For the reasons explained in this opinion, we answer the four

certified questions as set forth above.

CERTIFIED QUESTIONS ANSWERED.

Mansfield and Zager, JJ., join this opinion. Cady, C.J., concurs in

part and dissents in part. Appel, J., concurs in part and dissents in

part, joined by Cady, C.J. Wiggins and Hecht, JJ., take no part. 42 #16–0076, Bd. of Water Works Trustees v. Sac Cty. Bd. of Supervisors

CADY, Chief Justice (concurring in part and dissenting in part).

I join in the partial concurrence and dissent by Justice Appel. I

write separately to build upon an important point of this federal litigation

and to add another.

The role of this court is not to decide the outcome of the case, but

to determine if the basis of the lawsuit is supported by our state law. It

is abundantly clear that Iowa’s drainage district law did not originate and

was not developed over time with the thought that a drainage district

could be a polluter. If it had, I am convinced our law would have

developed in a way that would have recognized a clear remedy.

Nevertheless, the equitable remedies now asserted are not new to

our law; they are only difficult to see in the context of this case. That

difficulty is not, however, a reason to dismiss the case, especially when

the facts in evidence have not yet been presented. The seriousness of

facts can often help to see the availability of equitable relief.

Furthermore, law develops through our changed understanding,

including our understanding of the environmental impact of drainage

districts. One of the fundamental principles of law is for remedies to be

available when we discover wrongs. Pollution of our streams is a wrong,

irrespective of its source or its cause.

I believe the focus of our attention should be the end to which this

lawsuit is directed. This state is blessed with fertile soil, vast expanses of

teeming wilderness, and an overwhelming abundance of fresh water. The

role and purpose of drainage districts in Iowa is important, but no more

important than this state’s enduring role of good stewardship. This

lawsuit serves to reinforce the critical balance at stake and asks the 43

rhetorical question posited years ago by one of the founders of modern

conservation, “What good is an undrained marsh anyhow?” 15 We should

respond when this balance has shifted too far in either direction.

The law of this state is but a reflection of the values of its people.

As we go forward as a people, so too must the law advance our values.

We can do this by applying existing remedies in new ways or by applying

new remedies to our existing values. This concept of remedy is not

exclusive to the judicial branch. We all can engage in this discussion

and act. As every farmer knows, the work is never done.

For these reasons and for the reasons stated by Justice Appel, I

concur in part and dissent in part.

15Aldo Leopold, A Sand County Almanac and Sketches Here and There 100 (Spec.

Commemorative ed. 1989). Aldo Leopold, perhaps not surprisingly, was an Iowan. 44

#16–0076, Bd. of Water Works Trustees v. Sac Cty. Bd. of Supervisors

APPEL, Justice (concurring in part and dissenting in part).

I cannot join the majority opinion. Nonetheless, for the reasons

expressed below, I concur in part and dissent in part.

I. Introduction.

A. What Is Presented: Significant Issues—Ghosts and Goblins.

This case touches upon some difficult and profound issues in our law.

These issues include the nature of riparian water rights, the proper

approach, if any, to controlling pollution of rivers and streams as a result

of common agricultural practices, and the ability of a government

subdivision to assert claims based on allegations of water pollution

against another governmental subdivision.

For purposes of this case I, like the majority, assume the facts that

have been provided to us by the federal district court in this certified

question matter. Under the district court’s certification order, we are to

assume that the defendant drainage districts are collecting agricultural

runoff that is then discharged into the Raccoon River and that the runoff

is so polluted with nitrates that the water withdrawn by the Des Moines

Water Works (DMWW) does not meet the health and safety standards of

the Safe Drinking Water Act as amended. See 42 U.S.C. § 300g-1 (2012).

As a result of the noncompliance, the DMWW expends significant funds

to remove the nitrates from the water before the water is sold to its

customers. DMWW seeks to recover damages for past cleanup efforts

and an injunction to prevent the defendants from continuing to pollute

the Raccoon River in the future.

To consider the issues, I first explore the contours of our law

related to drainage districts. Taking the facts provided by the federal

district court as true, I then consider whether money damages are 45

available under our caselaw and applicable statutes. I then consider

whether any alleged limitation in the power of drainage districts to pay

money damages gives rise to a state constitutional claim rooted in the

due process, equal protection, or inalienable rights clauses of the Iowa

Constitution. I thereafter explore the law or remedies as well as the

substance of the law of nuisance.

Finally, I consider whether DMWW may bring a takings claim

against the defendants because of its alleged pollution of the Raccoon

River. I consider whether property interests are involved, whether the

property interests are “private” for the purposes of takings law, and

whether DMWW has standing to bring a takings claim against the

drainage district defendants.

B. What Is Not Presented: False Trails. Before launching into

the substantive analysis, it is important to emphasize what this case is

not about. It raises no question about who owns the water—all agree

that the state owns the water. See Iowa Code § 455B.171(39) (2015). It

raises no question of navigation rights. See Gibson v. United States, 166

U.S. 269, 271–72, 17 S. Ct. 578, 579, 41 L. Ed. 996, 1000 (1897). It

raises no question of allocation of limited quantities of water. See City of

Trenton v. New Jersey, 262 U.S. 182, 185, 43 S. Ct. 534, 536, 67 L. Ed.

937, 940 (1923). It raises no question of flooding related to the operation

of drainage districts. See Sanguinetti v. United States, 264 U.S. 146, 150,

44 S. Ct. 264, 265, 68 L. Ed. 608, 610–11 (1924).

All the legal questions raised in this case revolve around the

allegation made by the DMWW that the drainage district defendants have

conducted drainage district operations in a way that has caused

unlawful pollution of the waters of the Raccoon River which DMWW uses 46

for purposes of providing water to its customers. In short, this is a

pollution case.

II. Setting the Table: Overview of Drainage District and Nuisance Law.

A. Introduction. Before diving into the issues, it is important to

have a bird’s-eye overview of the relevant law. I begin by surveying the

constitutional environment as the starting point for consideration of the

issues raised in this case. I next turn to the statutory environment,

including not only the statutory framework for drainage districts but the

statutory provisions related to nuisance and water pollution. These

statutory provisions are important because the interrelationship between

environmental law and drainage district law is at the heart of this case.

Finally, I briefly review the common law of nuisance, which is not

preempted by either statutory nuisance or any other environmental

statute.

B. Constitutional Environment.

1. Article I, section 18: Authorization of drainage districts. Drainage

districts are authorized by the eminent domain article of the Iowa

Constitution. This constitutional provision authorizes the general

assembly to

pass laws permitting the owners of lands to construct drains, ditches, and levees for agricultural . . . purposes across the lands of others, and provide for the organization of drainage districts, vest the proper authorities with power to construct and maintain levees, drains and ditches and to keep in repair all drains, ditches, and levees heretofore constructed under the laws of the state, by special assessments upon the property benefited thereby.

Iowa Const. art. I, § 18.

Further, article I, section 18 provides for condemnation powers for

drainage districts: “The general assembly may provide by law for the 47

condemnation of such real estate as shall be necessary for the

construction and maintenance of such drains, ditches and levees, and

prescribe the method of making such condemnation.” Id.

2. Article III, section 39A: County home rule. In 1978, the Iowa

Constitution was amended to provide for county home rule. Specifically,

article III, section 39A provides,

Counties or joint county-municipal corporation governments are granted home rule power and authority, not inconsistent with the laws of the general assembly, to determine their local affairs and government, except that they shall not have power to levy any tax unless expressly authorized by the general assembly. . . .

....

The proposition or rule of law that a county or joint county-municipal corporation government possesses and can exercise only those powers granted in express words is not a part of the law of this state.

Iowa Const. art. III, § 39A. This constitutional provision is important

because it has potential application to a key issue in this case, namely,

the scope of power of drainage districts.

C. Iowa Statutory Environment.

1. Iowa Code chapter 468: The drainage district framework. An

elaborate and detailed statutory framework for drainage districts is

codified in Iowa Code chapter 468. Under chapter 468, the board of

supervisors of a county is authorized to create a drainage district and

“cause to be constructed” within the drainage district “any levee, ditch,

drain, or watercourse, or settling basins” and “to straighten, widen,

deepen, or change any natural watercourse” whenever such action will

be “of public utility or conducive to the public health, convenience or

welfare.” Iowa Code § 468.1. 48

Iowa Code section 468.2 further provides that the drainage of

surface waters from agricultural lands and other lands or the protection

of lands from overflow is “presumed to be a public benefit and conducive

to the public health, convenience, and welfare.” The legislature has

directed that the provisions of laws related to drainage and protection

from overflow “shall be liberally construed to promote leveeing, ditching,

draining, and reclamation of wet, swampy, and overflow lands.” Id.

§ 468.2(2).

The statute provides for the appointment of commissioners to

apportion and assess the costs and expenses of constructing proposed

improvements. Id. § 468.38. When the board of supervisors has finally

determined the matter of assessments of benefits and apportionment for

drainage district improvements, the board is given the power to levy the

assessments as fixed by it upon lands within the district. Id. § 468.50.

The law provides that such taxes “shall be paid out only for purposes

properly connected with and growing out of the county drainage and

levee districts on order of the board.” Id. § 468.54.

After a drainage district has been created and improvements

constructed, the statute authorizes repairs and additional improvements.

With respect to repairs, the board is authorized

to restore or maintain a drainage or levee improvement in its original efficiency or capacity, . . . repair any damaged structures, remove weeds and other vegetable growth, and whatever else may be needed to restore or maintain such efficiency or capacity or to prolong its useful life.

Id. § 468.126(1)(a).

The board is also authorized to construct improvements. Id.

§ 468.126(4). The term “improvement” is defined as “a project intended

to expand, enlarge, or otherwise increase the capacity of any existing 49

ditch, drain, or other facility above that for which it was designed.” Id.

Costs of improvements are to be paid out of drainage district funds or, if

funds are not sufficient, from assessments on land. Id. §§ 468.127, .147.

The assessments must be made at one time, but may be collected in

installments. Id. § 468.127. In cases when current funds are

insufficient and the improvement cannot be funded by a single year’s

levy, the board may issue drainage bonds to finance the improvements.

Id. § 468.74.

Chapter 468 does not contain a provision that addresses potential

pollution arising from the operation of drainage districts. There is a

provision in current law related to nuisance from overflow:

Any ditch, drain, or watercourse which is now or hereafter may be constructed so as to prevent the surface and overflow water from the adjacent lands from entering and draining into and through the same is hereby declared a nuisance and may be abated as such.

Id. § 468.150.

Notably, there are no provisions in chapter 468 specifically

declaring that money damages may not be paid by a drainage district.

Further, there are no provisions expressly stating that generally

applicable nuisance law does not apply against a drainage district.

Indeed, there are no provisions of Iowa Code chapter 468 expressly

exempting drainage districts from provisions of law germane to this case.

2. Iowa Code chapters 455A and B. Iowa Code chapters 455A and

B provide the framework for the Iowa Department of Natural Resources.

The purpose for creating the department is to protect “Iowa’s air, soils,

waters, and rich diversity of life” because “[t]he well-being and future of

Iowa depend on these natural resources.” Id. § 455A.15. The general

assembly found “[t]here has been a significant deterioration in the quality 50

of Iowa’s surface waters and groundwaters” because of human activity.

Id.; see also id. § 455B.262 (describing the importance to the state of

protecting “life and property from floods” and “the orderly development,

wise use, protection, and conservation of the water resources of the

state”).

In order to accomplish this goal, the department “has the primary

responsibility for . . . managing fish, wildlife, and land and water

resources in this state.” Id. § 455A.2; see also id. § 455A.16 (describing

the policy of the state of Iowa to protect Iowa’s waters, among other

natural resources, for the benefit of present and future citizens). The

director of the department is required to cooperate with the Department

of Agriculture and Land Stewardship in the “administration of programs

relating to water quality improvement and watershed improvements.” Id.

§ 455A.4(1)(j). The Environmental Protection Commission, created by

Iowa Code section 455A.6, is required to protect Iowa’s groundwater and

water supply and is directed to cooperate with “cities and other

subdivisions of the state” as well as landowners in actions “relating to

flood control and the use of water resources.” Id. § 455B.263(7).

3. Iowa Code chapter 657: Statutory nuisance. Iowa Code section

657.1 provides for a statutory nuisance civil action. Among other things,

this section states,

Whatever is injurious to health, indecent, or unreasonably offensive to the senses, or an obstruction to the free use of property . . . is a nuisance, and a civil action by ordinary proceedings may be brought to enjoin and abate the nuisance and to recover damages sustained on account of the nuisance.

Id. § 657.1. Iowa Code section 657.2 then lists a number of actions or

situations that are nuisances under the chapter. In particular, a

nuisance includes “[t]he corrupting or rendering unwholesome or impure 51

the water of any river, stream, or pond, or unlawfully diverting the same

from its natural course or state, to the injury or prejudice of others.” Id.

§ 657.2(4).

Iowa Code section 657.3 provides criminal penalties related to

nuisances:

Whoever is convicted of erecting, causing, or continuing a public or common nuisance as provided in this chapter, or at common law . . . , where no other punishment therefor is specially provided, shall be guilty of an aggravated misdemeanor and the court may order such nuisance abated, and issue a warrant . . . .

Finally, chapter 657 provides for a process including the issuance

of warrants to cause abatement of nuisances and describes how the

costs of abating a nuisance may be collected. Id. §§ 657.6–.7.

Chapter 657 provides a safe harbor for animal agricultural

producers who manage their operations in accordance with state or

federal law. Id. § 657.11(1). Aside from the exception for animal

agricultural producers, there is no other agriculturally related exemption

from nuisance law in Iowa Code chapter 657. In Gacke v. Pork Xtra,

L.L.C., however, we held that this exception was unconstitutional as a

per se taking without just compensation. 684 N.W.2d 168, 185 (Iowa

2004).

D. Iowa Common Law Environment. We have held that

statutory nuisance does not preempt a common law nuisance action.

Freeman v. Grain Processing Corp., 848 N.W.2d 58, 70 (Iowa 2014);

Guzman v. Des Moines Hotel Partners, Ltd. P’ship, 489 N.W.2d 7, 10

(1992). Thus, in addition to the statutory nuisance described in Iowa

Code chapter 657, a common law claim remains available to persons

alleging environmental harms. The elements of common law nuisance

are “(1) unlawful or anti-social conduct that (2) in some way injures (3) a 52

substantial number of people” for public nuisance and “an actionable

interference with a person’s interest in the private use and enjoyment of

his land” for private nuisance. Pottawattamie County v. Iowa Dep’t of

Envtl. Quality, 272 N.W.2d 448, 453 (Iowa 1978) (second quote quoting

Patz v. Farmegg Prods., Inc., 196 N.W.2d 557, 560 (Iowa 1972)); accord

State ex rel. Turner v. Younker Bros. Inc., 210 N.W.2d 550, 564 (Iowa

1973). We have held that pollution may constitute a public or private

nuisance under the common law. See, e.g., Kasparek v. Johnson Cty. Bd.

of Health, 288 N.W.2d 511, 520 (Iowa 1980); Pottawattamie County, 272

N.W.2d at 453; Kriener v. Turkey Valley Cmty. Sch. Dist., 212 N.W.2d

526, 531–32 (Iowa 1973); Bader v. Iowa Metro. Sewer Co., 178 N.W.2d

305, 307 (Iowa 1970).

III. More Table Setting: Iowa Caselaw Involving Drainage Districts and Environmental Regulation.

A. Introduction. I now turn to the caselaw related to drainage

districts. First, I examine the opinions on the nature of drainage

districts and their powers. I then explore the cases regarding the legal

duties of drainage districts that arise both within Iowa Code chapter 468

and from external sources. Finally, I consider the caselaw applying the

law of nuisance to agricultural concerns.

B. The Rise (and Fall) of “No Legal Entity” Theory. The older

notion that a drainage district is a nonjuristic entity is reflected in Clary

v. Woodbury County, 135 Iowa 488, 113 N.W. 330 (1907). In that case,

we declared

[a drainage district] is not a person or a corporation. It is nothing more than a definite body or district of land constituting an improvement district. That it has no legal entity is manifest from various sections [of the Code] which place the entire matter under the control and supervision of the board of supervisors. 53

Id. at 492, 113 N.W. at 332; see also Gish v. Castner-Williams & Askland

Drainage Dist., 136 Iowa 155, 157, 113 N.W. 757, 757 (1907) (noting that

a drainage district “is not such [a] legal entity as is known to or

recognized by law as a proper party to adversary proceedings”).

The “no legal entity” doctrine at first seemed to stick. In Board of

Supervisors v. District Court, we characterized a drainage district as

merely “a segregated area of land, which has been set out by legal

proceedings, and is subject to assessment for the construction of certain

drainage improvements.” 209 Iowa 1030, 1033, 229 N.W. 711, 712

(1930). Thus, a drainage district was simply a tract of land with metes

and bounds that might be subject to improvement. It was acres of real

estate, nothing more. You cannot sue the back forty.

Over time, however, the no-legal-entity theory began to fall apart.

For instance, in Wise v. Board of Supervisors, we considered a case in

which the ditch of a drainage district was in poor repair such that it was

not operating properly. 242 Iowa 870, 872, 48 N.W.2d 247, 248 (1951).

The plaintiffs, owners of farmland in the district, petitioned the board of

supervisors to repair the ditch. Id. at 871, 48 N.W.2d at 248. The board

abandoned the repair project, however, when other landowners objected

to the expense. Id. at 872, 48 N.W.2d at 248.

In Wise, we held, however, that it was clear the “repairs are

necessary to make the drainage improvement function properly.” Id. at

874, 48 N.W.2d at 249. We granted mandamus to order the board to

make the necessary improvements. Id. at 875, 48 N.W.2d at 249. We

left the manner in which to proceed within the sound discretion of the

board. Id. Wise plainly stands for the proposition that there is at least

one equitable remedy available to require drainage districts to perform a

duty, namely, mandamus. 54

We drifted still further away from the no-legal-entity doctrine in

Wapello County v. Ward, 257 Iowa 1231, 136 N.W.2d 249 (1965). In

Wapello County, we considered a dispute over county zoning. Id. at

1232, 136 N.W.2d at 249. In passing, we noted that various bodies,

including drainage districts, have long been known to the law but defined

“only in regard to certain specific purposes.” Id. at 1235, 136 N.W.2d at

251. We characterized these various bodies as “quasi municipal

corporations.” Id. The discussion, however, was dictum.

But the Wapello County dictum was followed by a concrete holding

in State ex rel. Iowa Employment Security Commission v. Des Moines

County, 260 Iowa 341, 149 N.W.2d 288 (1967). In that case, we

considered whether a drainage district could be considered a “juristic

entity” for purposes of retirement benefits under Iowa Code chapter 97C.

Id. at 345, 149 N.W.2d at 290. We concluded that drainage districts

were a juristic entity because a drainage district was a “legally

recognizable or identifiable political body, unit, organization, or

instrumentality of the state or any one or more of its political

subdivisions.” Id. at 345–46, 149 N.W.2d at 290–91. We said, “[A]n

organized drainage district is a political subdivision of the county in

which it is located, its purpose being to aid in the governmental

functions of the county. It is a legally identifiable political

instrumentality.” Id. at 346, 149 N.W.2d at 291.

As a result, the district court’s holding that it lacked subject

matter jurisdiction was overruled. Id. at 347, 149 N.W.2d at 291. Iowa

Employment Security demonstrates how far our cases have travelled from

the no-legal-entity doctrine of the earlier cases. See Gish, 136 Iowa at

157, 113 N.W. at 757; Clary, 135 Iowa at 492, 113 N.W. at 332.

Drainage districts were now being recognized for what they obviously 55

were: a political subdivision of the county in which they were located.

See Iowa Emp’t Sec. Comm’n, 260 Iowa at 346, 149 N.W.2d at 291.

We declined to invoke the notion that a drainage district was not

an entity in Voogd v. Joint Drainage District No. 3–11, 188 N.W.2d 387,

393 (Iowa 1971). In Voogd, plaintiff landowners sought to recover

payments of past drainage assessments and to enjoin the counties’

collection of future assessments to pay for repairs. Id. at 388. The

problem in the case was that the counties originally approved the repair

based on low-ball estimates. Id. at 389. When costs skyrocketed, the

counties continued the repair project. Id. Plaintiffs cried foul. Id. at

390.

We agreed with the plaintiffs and held that future installments

could not be collected. Id. at 395. In addition, we ordered a refund of

some of the amount that the plaintiffs had already paid. Id. In Voogd,

we saw no problem in a drainage district being ordered to repay the

amount of funds previously collected.

Fourteen years later, in Fisher v. Dallas County, we considered a

case in which the plaintiff claimed to have experienced flooding problems

because of the operation of a drainage district. 369 N.W.2d 426, 427

(Iowa 1985). The plaintiffs in Fisher did not contest our prior holdings.

Id. at 429–30. We repeated the familiar refrain that drainage districts

only had those powers expressly conferred by the legislature. Id. at 429.

On the question of money damages, we offered the qualified observation

that drainage districts had no corporate existence “for that purpose.” Id.

In Fisher, we characterized the unavailability of money damages as

“immunity from suit in tort.” Id. at 430.

Yet, Fisher cited Wise and Voogd with apparent approval. Id. at

429. Fisher did so, in part, by linking the relief afforded in each case to a 56

statutory provision. Id. We stated that the mandamus afforded in Wise

was based upon a duty to maintain a drainage district imposed by Iowa

Code section 455.135(1). Id. We stated that action in Voogd challenging

the validity of assessments was based on the power to levy assessments

in Iowa Code section 455.45. Id.

The fighting issue in Fisher was whether the enactment of the

Municipal Tort Claims Act, Iowa Code chapter 613A (now chapter 670),

overruled our prior cases on the immunity of drainage districts from

suits in tort. Id. Under the Act, “municipalities” were subject to liability

in tort with certain exceptions. Id. at 430. In Fisher, we held that a

drainage district was not a municipality. Id. We reasoned that a

drainage district’s immunity from suits in tort did not rise or fall with the

doctrine of sovereign immunity. Id. at 430. We retreated to old

formulations, including the dubious suggestion that a drainage district

was “merely an area of land.” Id. We did not cite Iowa Employment

Security, which declared drainage districts were “a political subdivision of

the county in which it is located” and “a legally identifiable political

instrumentality,” 260 Iowa at 346, 149 N.W.2d at 291, nor did we cite

Voogd, which declared that drainage districts were “political subdivisions

of counties,” 188 N.W.2d at 393.

Justice Larson dissented. Fisher, 369 N.W.2d at 431 (Larson, J.,

dissenting). He concluded that a drainage district was a “unit of local

government” under the Municipal Tort Claims Act and, as a result, was

amenable to tort law suits. Id. Although the dissent is cryptic, it is

apparent that Justice Larson was not buying the no-legal-entity

argument. His dissent was more consistent with Wapello County, Iowa

Employment Security, and Voogd than the approach of the majority. 57

The next case of interest is Gard v. Little Sioux Intercounty Drainage

District, 521 N.W.2d 696 (Iowa 1994). In Gard, we rejected a claim for

money damages by the estate of drowned boaters. Id. at 697, 699. We

cited Fisher for the proposition that drainage districts have limited

powers. Id. at 698. We emphasized the narrow proposition that “Iowa

has never allowed tort claims for money damages to be made against a

drainage district.” Id. (emphasis added). The focus in Gard was not on a

no-legal-entity theory, but on the limited statutory power of drainage

districts.

Finally, we considered a claim against a drainage district in

Chicago Central & Pacific Railroad v. Calhoun County Board of

Supervisors, 816 N.W.2d 367 (Iowa 2012). A railroad sought to recover

monies voluntarily spent on repairs of a drainage district improvement.

Id. at 368. The railroad in this case faced a conundrum. See id.

Because of problems with a drainage ditch, it could not operate its

railroad. Id. Yet, it would take some time to get the drainage district to

move on the problem. Id. The railroad decided that instead of waiting

for the drainage district to resolve the problem, which could take

considerable time, the railroad voluntarily performed the repair to get its

operations up and running as soon as possible. Id. at 369. It then sued

the drainage district, seeking to recover the cost of the repair. Id. We

declared that while the railroad could have filed a mandamus action to

force the railroad to make the repair, it could not, under our caselaw,

seek money damages. Id. at 378. Chicago Central did not mention the

no-legal-entity theory.

C. The Overflow Cases: Avoiding Statutory Suicide. Now I turn

to what might be called “the overflow cases.” The classic overflow case

arises when downstream landowners complain when upland drainage 58

districts, by removing water and directing it into rivers and streams,

cause flooding downstream.

The seminal overflow case is Maben v. Olsen, 187 Iowa 1060, 175

N.W. 512 (1919). In Maben, we considered whether a downstream

landowner could obtain an injunction against a drainage district where

the activities of the drainage district caused overflow downstream. Id. at

1063, 175 N.W. at 513. In Maben, we characterized the controlling

question as,

Is it unauthorized and unlawful to establish a drainage district if so doing will cause water to come into the natural outlet for the district more rapidly and in greater quantity than if the land in the district were left to send its surface water into said outlet without interference by a drainage system, and if it further appears that the increase in rapidity and volume may overtax the natural outlet and cause a damaging overflow to lands below the entrance to such outlet.

Id.

In Maben, we held that the Iowa Constitution expressly authorized

the legislature to give the board of supervisors the power to do precisely

what we had described. Id. at 1063–64, 175 N.W. at 513–14. The

specific question was further characterized as whether the delegation of

power to establish drainage systems “may be interfered with by a court of

equity because, through its exercise, a more rapid and a greater flow will

reach a natural outlet, to the possible or even probable injury of the

lower owners.” Id. at 1065, 175 N.W. at 514. But, as we pointed out, the

“cardinal purpose” of draining agricultural lands is acceleration and

increased overflow. Id.

In short, the result urged by the Maben plaintiff would ensure that

the power given to the drainage districts could not “be used to

accomplish the only purpose for which it [was] given.” Id. In other 59

words, the legislature could not have intended overflow to be a nuisance

because if it did drainage districts simply could not function. Id.

Application of generally applicable nuisance law was thus flatly

inconsistent with the specific purpose of drainage districts.

It is hard to argue against the reasoning in Maben. Indeed, prior

to the enactment of article I, section 18, the biggest obstacle to draining

farmland was securing the right to drain water onto the land of another.

See Joseph W. Otto, Subject to Overflow: The History of Drainage Districts

in Jasper County, Iowa 25 (Aug. 2012) (unpublished M.A. dissertation,

Appalachian State University), https://libres.uncg.edu/ir/asu/f/

Otto,%20Joseph_2012_Thesis.pdf. Article I, section 18 and the

implementing statutes were designed to eliminate the problem—that is

why Maben is clearly correct.

But it is important to note the narrowness of the reasoning and its

holding. Clearly, Maben had nothing to do with a claim arising from

alleged pollution. And, in fact, the Maben court went to great lengths to

distinguish cases involving pollution of waterways by government

entities, thereby demonstrating the narrowness of its holding. 187 Iowa

at 1068–70, 175 N.W. at 515–16; see, e.g., City of Atlanta v. Warnock, 18

S.E. 135, 135 (Ga. 1892) (holding that if municipality goes beyond

authority and injures private property by the opening of manholes and

releasing poisonous gases, it is responsible for resulting damage); Gage v.

City of Chicago, 60 N.E. 896, 897 (Ill. 1901) (holding that an ordinance

which resulted in preventing the connection of sewer systems was void

because the city had “no right to empty the sewage upon private

property”); State v. Concordia, 96 P. 487, 489–90 (Kan. 1908) (holding a

city could be liable for polluting a river and damaging private

landowners, even though a statute authorized the city to dump sewage 60

into the river); Thompson v. City of Winona, 51 So. 129, 129 (Miss. 1910)

(holding a city liable for damages when it constructed a sewer system

which polluted a waterway and damaged the plaintiff); Smith v. City of

Sedalia, 53 S.W. 907, 912 (Mo. 1899) (holding a city could be liable for

polluting a stream flowing into plaintiff’s farm, despite city establishing

sewer system under legislative mandate); Markwardt v. City of Guthrie,

90 P. 26, 28–29 (Okla. 1907) (holding that a lower property owner has a

cause of action, including injunctive relief, against a city for polluting a

stream); Pearce v. Gibson County, 64 S.W. 33, 36 (Tenn. 1901) (issuing

an injunction prohibiting a municipality from emptying sewage from a

courthouse upon the land of the complainant).

The pollution cases distinguished in Maben were consistent with

contemporary Iowa law. In Vogt v. City of Grinnell, we considered an

action brought against a city for discharging sewage into the stream to

the material injury of lower riparian owners. 133 Iowa 363, 364, 110

N.W. 603, 603 (1907). We noted that a statute authorized the city to

construct a system of sewers but did not authorize emptying the sewers

into a running stream even if the system was functioning as designed.

Id. at 365, 110 N.W. at 603. The sewer system was operating perfectly in

Vogt, but the unauthorized discharge of sewage to the material injury of

riparian proprietors was a wrongful act. Id.; see also Boyd v. City of

Oskaloosa, 179 Iowa 387, 390, 161 N.W. 491, 492 (1917).

We considered a later overflow case in Miller v. Monona County,

229 Iowa 165, 294 N.W. 308 (1940). In Monona County, the plaintiff

sought a mandatory injunction to abate nuisances caused by water

overflow as a result of dust storms and vegetation filling the ditches of

the drainage district. Id. at 168, 294 N.W. at 310. In Monona County we

stated, “The drainage district is a special creation of the legislature and it 61

requires no argument to sustain the proposition that it cannot create a

nuisance while operating within the ambit of power constitutionally

delegated.” Id. at 169, 294 N.W. at 311.

Whenever a court says that no argument is necessary to sustain a

proposition, we should be especially alert for potential error. Like

Maben, Monona County, however, was not a pollution case. It was

another overflow case. The Monona County court had no interest in

thrusting overflow liability onto drainage districts, even if the overflow

was a result of a failure to repair drainage districts. See id.

D. Compliance with Internal Duties Arising from Iowa Code

Chapter 468. There are a number of cases where plaintiffs have sought

to require drainage districts to comply with statutory duties arising from

Iowa Code chapter 468. For instance, as described earlier, we heard a

case where plaintiffs sought to require the board of supervisors to repair

a drainage ditch, which was obstructed and in poor repair. Wise, 242

Iowa at 871–72, 48 N.W.2d at 248. Originally, the board began the

project, but abandoned it when other landowners in the district objected

In Wise, we held that it was clear under the record that “repairs

are necessary to make the drainage improvement function properly.” Id.

at 874, 48 N.W.2d at 249. We granted mandamus to order the board to

make the improvements. Id. at 875, 48 N.W.2d at 249. Mandamus is an

appropriate remedy to compel drainage districts to perform a legal duty

under Wise. Additionally, in Voogd, we granted an injunction against a

drainage district to prevent the collection of future assessments to pay

for a drainage district improvement. 188 N.W.2d at 395.

The availability of mandamus to require a drainage district to

perform needed repairs was also discussed in Chicago Central, which was 62

described above. 816 N.W.2d at 373–74. We held that money damages

were not available, but we declared that the railroad could have filed a

mandamus action to compel the district to make the repair. Id. at 378.

E. Compliance with External Statutory Duties Arising Outside

Chapter 468: Defeat of the Impenetrable Legal Bubble Theory. We

have, on occasion, considered the interplay between Iowa Code chapter

468 and other statutes. The cases demonstrate that drainage districts

are not hermetically sealed in an impenetrable legal bubble from other

requirements of the Code.

In Iowa Employment Security, the Iowa Employment Security

Commission assessed and levied taxes and interest claimed due from a

drainage district under Iowa Code chapters 97B and 97C. 260 Iowa at

342, 149 N.W.2d at 289. There was no statutory provision in Iowa Code

chapter 468 authorizing the drainage district to pay these taxes. Id. at

343–44, 149 N.W.2d at 289–90. The Iowa Employment Security

Commission, however, sought to compel the drainage district to “perform

asserted statutory duties.” Id. at 346, 149 N.W.2d at 291. We agreed

with the commission and held that the provisions of Iowa Code chapter

97B and 97C could be enforced and that mandamus against the

drainage district was “the proper remedy.” Id. Thus, equitable remedies

are available to enforce against drainage districts duties that arise from

statutory provisions outside Iowa Code chapter 468.

There is one other case of interest. In Polk County Drainage District

Four v. Iowa Natural Resources Council, we considered whether a

drainage district had complete authority over construction of

improvements under chapter 468 or whether the Iowa Natural Resources

Council (INRC) had the power to approve or deny permits for such

construction under Iowa Code chapter 455A. 377 N.W.2d 236, 239–40 63

(Iowa 1985). We held that the INRC had concurrent authority over such

construction. Id. at 241. We emphasized that when two statutes deal

with the same subject, courts endeavor to give effect to both enactments.

Id. While drainage district statutes were to be liberally construed,

according to the Polk County court, environmental policy statutes were

also to be liberally construed because of the important policy

considerations underlying them. Id. Polk County stands for the

proposition that claims of exclusive authority by drainage districts must

give way to an environmental policy statute governing the same subject

matter.

F. No Money Damages for Torts. As can be seen above, we have,

in a number of cases, refused to allow an award of money damages

against a drainage district. But our statements in that regard have been

sometimes limited. For example, in Fisher, we considered a case where

plaintiffs experienced flooding problems because of the operation of a

drainage district. 369 N.W.2d at 427. On the question of money

damages, we offered the limited observation that drainage districts have

no corporate existence “for that purpose.” Id. at 429. We also offered the

broad characterization that the unavailability of money damages against

a drainage district amounted to “immunity from suit in tort.” Id. at 430.

The next case of interest is Gard, 521 N.W.2d at 696. In Gard, we

rejected a claim for money damages by the estate of drowned boaters. Id.

at 699. We cited Fischer for the proposition that drainage districts have

limited powers. Id. at 698. We emphasized the narrow proposition that

“Iowa has never allowed tort claims for money damages to be made

against a drainage district.” Id. (emphasis added).

We made a similar declaration in Chicago Central. Although it was

in the context of reimbursement for a repair, we restated that although 64

mandamus was available to cause a drainage district to do its duty,

money damages were not an available remedy. Chicago Cent., 816

N.W.2d at 378.

G. Silence! Post Home Rule Cases. Finally, there is one more

observation that must be made regarding our drainage district caselaw.

No-money-damages cases like Fisher and Gard emphasize the limited

nature of drainage district authority. See Gard, 521 N.W.2d at 698;

Fisher, 369 N.W.2d at 429. Yet, in 1978, Iowa passed an amendment to

the Iowa Constitution establishing county home rule. Iowa Const. art.

III, § 39A. Under county home rule, the so-called Dillon rule is abolished

and local governments have broadened powers. Polk Cty. Bd. of

Supervisors v. Polk Commonwealth Charter Comm’n, 522 N.W.2d 783,

790–91 (Iowa 1994). While several of our drainage district cases

occurred after the enactment of the county home rule amendment, none

of them consider the impact of home rule on our cases. In this case,

DMWW claims that Fisher and Gard are no longer viable authority

because the power of drainage districts is no longer limited as it was

prior to county home rule.

IV. Potential Remedies Against Drainage Districts.

A. Introduction. It seems to me that much of the rhetoric of our

drainage district cases is not entirely accurate. The notion that drainage

districts are not entities strikes me as simply wrong. Further, although

we declare that drainage districts have “immunity” from money damages,

I am not sure that is an accurate description of what our caselaw in fact

supports. I do not see in our cases a legislative or judicial policy

judgment that drainage districts should be generally immune from

potential damages in tort. 65

Instead, I conclude that the real issue at stake here is not whether

we should abandon the wrong-headed notion that drainage districts are

not entities or whether we should abrogate some kind of immunity based

upon some perception of public policy. The real question relates to the

ability, or lack of ability, of a drainage district to comply with a court-

ordered damage or injunctive remedy related to pollution. I am inclined

to agree with the drainage district that an injunction against a state

official “is utterly meaningless” when the official against whom the

injunction is granted lacks the power to redress the associated injuries.

Okpalobi v. Foster, 244 F.3d 405, 426–27 (5th Cir. 2001). In short, the

remedies questions posed in this case are about whether the defendants

have the authority to comply with a potential judgment for money

damages or an injunction fashioned to abate a nuisance should the

DMWW prevail on its substantive nuisance claims. These are questions

of law, not fact.

B. Money Damages and Application of Stare Decisis.

1. Introduction. On the issue of money damages, the drainage

district defendants argue that we are bound by stare decisis to follow our

precedents. As shown above, in several contexts, our cases proclaim

that money damages in tort are not available against drainage districts,

most persuasively because of their limited statutory powers.

DMWW draws our attention to three potential problems. First,

DMWW attacks the general reasoning employed in our no-money-

damages cases and invites us to abandon them as a relic of the past.

Second, DMWW points out that our no-money-damages cases do not

involve cases concerning pollution or, more narrowly, pollution allegedly

arising in violation of statutory nuisance. Third, DMWW challenges the

reasoning of our cases refusing to allow money damages. Finally, 66

DMWW contends that even if our cases might be otherwise entitled to

stare decisis, the enactment of county home rule in 1978 deprives these

cases of their precedential value.

2. Rationale of no-money-damages cases. To some extent, I agree

with DMWW that some of the reasoning employed in our no-money-

damages caselaw is flawed. As indicated above, I do not accept the no-

legal-entity line of reasoning or the characterization of nonliability as

based on immunity. What I do think is at play in our cases, however, is

the notion that drainage districts have limited statutory powers and that

these powers do not include the ability to pay money damages.

Certainly, as the drainage district defendants point out, DMWW has been

unable to point to any statutory provision in the more than six hundred

sections of Iowa Code chapter 468 that expressly authorizes payment of

money damages.

We have long held, even in the pre-home rule days, that local

government authority includes not only what is expressed but also what

is necessarily implied. See, e.g., Woodbury County v. Anderson, 164

N.W.2d 129, 134 (Iowa 1969); In re Estate of Frentress, 249 Iowa 783,

786, 89 N.W.2d 367, 368 (1958). There is, perhaps, an argument that

the power to pay for money damages should be necessarily implied from

chapter 468, but I do not find such an implication compelling. At the

time chapter 468 was enacted, sovereign immunity was the rule and not

the exception. I doubt that the legislature intended when it granted the

drainage districts limited express powers to imply a power that under

prevailing law was not generally available absent legislative consent. I

thus conclude that the argument that drainage districts have an implied

power to pay money damages does not have much merit. 67

3. Broad case holdings and stare decisis. The next question I

consider is whether the cases that might be entitled to stare decisis cover

the present controversy. DMWW is correct that cases like Fisher, Gard,

and Chicago Central do not involve pollution matters. And, in particular,

they do not arise in the context of claimed violation of duties arising out

of other statutes such as statutory nuisance. Iowa Code § 657.2(4). Yet,

the language of the cases is quite broad—“Iowa has never allowed tort

claims for money damages to be made against a drainage district”! Gard,

521 N.W.2d at 698.

The question is whether prior broad statements of law are entitled

to stare decisis even when the facts of a subsequent case are arguably

distinguishable. See, e.g., Indep. Inst. v. FEC, 816 F.3d 113, 117 (D.C.

Cir. 2016) (“The nature of our system of legal precedent is that later

cases often distinguish prior cases based on sometimes slight

differences.”); Richard M. Re, Narrowing Supreme Court Precedent from

Below, 104 Geo. L.J. 921, 924–25 (2016) (describing how lower federal

courts will often “narrow from below” outdated or ambiguous Supreme

Court precedents); Richard M. Re, Narrowing Precedent in the Supreme

Court, 114 Colum. L. Rev. 1861, 1875–89 (2014) (arguing that healthy

stare decisis can require methods of narrowing broadly stated precedent

in order to avoid overruling a case when its “best reading,” i.e. the

precedent as actually stated, would require an outcome inconsistent with

other legal principles). Of course, the next case is always different, in

some way, from prior cases. But at the same time, context matters. The

question is whether a broad legal expression is binding in the contexts

other than that in which it has arisen? Here, unlike in Fisher, Gard, and

Chicago Central, a statute outside of Iowa Code chapter 468 imposes a 68

duty not to create or continue a nuisance—no similar statutory duties

were present in the cases disallowing money damages.

I do not have a very clear answer for this interesting question.

There is considerable appeal to the argument that broad statements of

law are binding only in the factual setting from which they arise and are

really only dicta with respect to other claims. The law constantly evolves

by distinguishing past precedent based on factual differences. As is

apparent from this opinion, I regard many of the issues posed in this

case as abundantly nuanced and contextual. Certainly we can all agree

that we have never considered the potential liability of drainage districts

in the context of a claim that the operation causes violation of federal

pollution law.

We should be particularly alert to avoid masking preferred policy

choices in a stare decisis costume. And, an overburdened court may be

tempted to over read precedent in the name of efficiency and quick

results, but such an approach runs the risk of uncritical dispositions.

Yet, notions of nuance and context could be extended so far that

there would almost never be an occasion to apply stare decisis and

literally nothing would ever be settled in the law. In close cases, the

determination of whether to apply stare decisis is a matter of judgment,

not inexorable command.

It seems to me that one relevant line of inquiry is whether a

reasonable drainage district would rely on the statements in our caselaw

as binding in the structuring of its financial and business affairs. In our

cases, particularly Gard and Chicago Central, the statements about

money damages are emphatic and were made in contexts where the

plaintiffs’ claims had considerable equitable appeal. Yet, in Iowa

Employment Security, the drainage district was required to pay money— 69

not damages in tort, perhaps, but money nonetheless—to a government

agency based on statutory requirements outside of Iowa Code chapter

468. See 260 Iowa at 346–47, 149 N.W.2d at 291. And, in Polk County,

we recognized that environmental regulations would be enforced in the

face of a claim that drainage districts had exclusive jurisdiction for

matters within the scope of its authority. See 377 N.W.2d at 241. Yet,

the issue here is not regulatory enforcement, as in Polk County, or

payment of money to government entity, as required in Iowa Employment

Security, but a question of money damages for an alleged civil wrong.

Although a close question, I am inclined to go along with the

application of stare decisis on the question of the availability of money

damages in this case. The most valid rationale for the no-money-

damages approach—that a drainage district has limited powers—is a

broad proposition that applies across the board. 16 Further, it seems to

me that a reasonable drainage district might forgo the possibility of

insurance in light of our caselaw. See, e.g., State v. Peeler, 140 A.3d 811,

857 (Conn. 2016) (Zarella, J., dissenting) (noting, among other costs to

individuals of overturning precedent, the impact on risk-shifting

arrangements like insurance policies); Crist v. Hunan Palace, Inc., 89 P.3d 573, 580 (Kan. 2004) (declining to overrule precedent in part

because insureds and insurance companies had relied on the precedent

in purchasing and crafting insurance policies); Paige v. City of Sterling

Heights, 720 N.W.2d 219, 228–29 (Mich. 2006) (overruling a prior

16Admittedly, though, this notion is clouded by Iowa Employment Security,

where the drainage district was required to pay funds to the state to support retirement even though there was no express statutory authority to do so. See 260 Iowa at 346– 47, 149 N.W.2d at 291. The power to pay for statutorily required retirement benefits could only have been an implied power. I have, however, rejected the notion of an implied power to pay money damages for torts. 70

decision because, in part, the precedent did not cause large numbers of

people to attempt to conform their conduct to the decision by, for

example, deciding whether to purchase insurance or not). Further,

where the result of precedent is defensible and the legislature has had a

relatively recent reminder in Chicago Central four years ago, we should

be cautious to reexamine precedent. See Doe v. New London Cmty. Sch.

Dist., 848 N.W.2d 347, 355 (Iowa 2014); Ackelson v. Manley Toy Direct,

L.L.C., 832 N.W.2d 678, 688 (Iowa 2013). So, although I am not

completely confident in the result, I am inclined to conclude that stare

decisis precludes our reconsideration of our caselaw that generally

stands for the proposition that money damages are not an available

remedy against drainage districts.

4. Impact of county home rule amendment. DMWW argues that our

prior precedent is based on perceived limitations in the statutory

authority of drainage districts. DMWW asserts that this rationale is no

longer applicable in light of the enactment of the county home rule

amendment to the Iowa Constitution. Under the county home rule

amendment, counties are no longer subject to the Dillon rule, which

stated that local governments only have those powers expressly granted

or necessarily applied or necessarily implied. See Iowa Const. art. III,

§ 39A; cf. City of Des Moines v. Master Builders of Iowa, 498 N.W.2d 702,

703 (Iowa 1993) (en banc) (considering the home rule amendment as

applied to city government). DMWW argues that drainage districts, as

subdivisions of the county, now have larger powers, including the power

to pay money damages for environmental pollution. DMWW correctly

asserts that our post-county home rule cases, Fisher, Gard, and Chicago

Central, do not address the question of whether home rule impacts the

no-money-damages rule. 71

The majority indicates that even if they have the benefit of home

rule, the drainage districts do not have the power to tax beyond that

authorized by the general assembly. That is, of course, an accurate

proposition. Yet, the Iowa Constitution expressly vests authority in

drainage districts to impose special assessments. Iowa Const. art. I,

§ 18. Further, we have held that special assessments do not necessarily

amount to a tax. Bennett v. Greenwalt, 226 Iowa 1113, 1134, 286 N.W.

722, 732 (1939). Thus, the relevant question is whether a drainage

district may use its expressly authorized special assessment power to

pay money damages arising from pollution. I am not sure of the answer

to this question if home rule applies to drainage districts.

But, I doubt that county home rule applies to drainage districts.

The county home rule amendment applies only to “counties” or “joint

county-municipal corporations.” A county, however, has not been

named as a defendant in this litigation. Although constitutional

language is often open textured and our interpretation must show fidelity

to the underlying constitutional values animating the language, a

drainage district is not the same as a county, but instead is a

governmental subdivision of the county in which they are located. Iowa

Employment Security, 260 Iowa at 346, 149 N.W.2d at 291. The question

is thus whether the unquestionably broad home rule of a county is

vicariously passed on to a subdivision of the county.

It is my conclusion that drainage districts do not come within the

scope of the county home rule amendment. The county home rule

amendment was directed to county and county-municipal corporations

that exercise general police powers and not to tightly regulated, limited

purpose entities like a drainage district whose governing structure, to

some extent, merely overlaps with county government. See Fountain City 72

Sanitary Dist. v. Knox Cty. Election Comm’n, 308 S.W.2d 482, 486 (Tenn.

1957) (Swepston, J., concurring) (explaining that drainage districts, as

quasi-municipal corporations, were not intended to be included within

the ambit of the home rule amendment); Union High Sch. Dist. No. 1 v.

Taxpayers of Union High Sch. Dist. No. 1, 172 P.2d 591, 596 (Wash. 1946)

(holding that a municipal corporation, in this case a high school district,

was not granted powers of home rule unless the statutory language

creating the municipal corporation clearly showed the legislature’s intent

to grant home rule powers); see also Philip A. Trautman, Legislative

Control of Municipal Corporations in Washington, 38 Wash. L. Rev. 743,

745 (1963).

C. State Constitutional Challenges to “Immunity” for Money

Damages Based on Due Process, Equal Protection, and Inalienable

Rights. Assuming as a matter of law that money damages are not

available, DMWW raises due process, equal protection, and inalienable

rights arguments under the Iowa Constitution challenging this state of

affairs. DMWW asserts that the judicially created doctrine of immunity

from money damages simply has to be abandoned. DMWW claims that

Iowa constitutional infirmities arise from such an irrational and arbitrary

state of affairs when most governmental entities are liable for such

money damages but drainage districts are not.

DMWW argues by analogy based on our decisions in cases

including Miller v. Boone County Hospital, 394 N.W.2d 776 (Iowa 1986),

Gacke, 684 N.W.2d at 168, and Hensler v. City of Davenport, 790 N.W.2d

569 (Iowa 2010). In Miller, we struck down a statute imposing more

stringent procedural requirements on tort claims against local

governments on equal protection grounds. 394 N.W.2d at 781. In

Gacke, we held that an immunity provision in Iowa Code section 73

657.11(2) exempting certain livestock operators from nuisance claims

amounted to a per se taking under the Iowa Constitution. 684 N.W.2d at

174–75. In Hensler, we developed a two-step process for determining

whether a particular state action violates substantive due process,

including a determination of whether a right is fundamental which,

DMWW asserts, certainly includes its right to compensation for

environmental harms. See 790 N.W.2d at 580–81. DMWW maintains

that if, in fact, drainage districts are immune from nuisance damages,

such immunity is constitutionally infirm under the equal protection, due

process, and inalienable rights clauses of the Iowa Constitution as

applied in Miller, Gacke, and Hensler.

If the plaintiff in this case was a citizen as in Miller, Gacke, and

Hensler, DMWW’s argument would need to be confronted. But this case

involves a government subdivision suing another government subdivision

for alleged damages from environmental harm. While our cases on

drainage districts use the term “immunity,” which inevitably gives rise to

the comparison with Gacke, the comparison is flawed. While the cases

are sometimes couched in immunity language, the use of the term

“immunity” is inaccurate. The real issue, to me, is a limitation of the

power of drainage districts compared to other entities.

Where the crux of the constitutional issue is the constitutional

validity of a limitation on the power of a government subdivision, our

caselaw suggests that another government subdivision does not have the

power to bring these claims. See Bd. of Supervisors v. Dep’t of Revenue,

263 N.W.2d 227, 232 (Iowa 1978). If a government subdivision cannot

complain of any act of the legislature diminishing its revenue, amending

its charter, or even dissolving it, it may be argued that DMWW as a

legislative creature cannot attack the limitations of power of another 74

legislative creature, the drainage district, absent a clear constitutional

command to the contrary. See McSurely v. McGrew, 140 Iowa 163, 170,

118 N.W. 415, 418–19 (Iowa 1908).

On this very narrow point, I concur with the result of the majority

with respect to the equal protection, due process, and inalienable rights

claims attacking the lack of authority of the drainage district defendants

to pay money damages for common law or statutory torts. I do not,

however, opine more generally on standing issues involving government

subdivisions as plaintiffs. In particular, as will be explained below, I

conclude that DMWW may raise a takings claim under article I, section

18 of the Iowa Constitution against the drainage district defendants.

D. Equitable Relief to Abate Nuisance.

1. Introduction. The question of whether equitable remedies are

available to abate an alleged nuisance caused by drainage districts raises

a fundamentally different question than the money damages controversy.

In order to address this different question, I first consider whether

injunctive relief is available against drainage districts generally. I then

turn to the question of whether nuisance provides a substantive legal

basis for an injunction in a pollution context generally. Next, I consider

whether an injunction to abate a nuisance arising from alleged pollution

may be entered against drainage districts. Finally, I consider the merits

of DMWW’s contention that it is entitled to seek injunctive relief if it can

prove its nuisance case under the facts presented to us by the certifying

federal court in this case.

2. Availability of injunctive relief against drainage districts

generally. The question here is whether injunctive relief is part of a

judicial tool kit that might be available to the district court in the event

that DMWW demonstrates an entitlement to relief. The mere fact that 75

money damages are not available, even if based on immunity, does not

prevent the availability of equitable relief. While our cases repeatedly

assert that money damages are not available, our cases clearly state that

equitable relief is available against drainage districts. For example, we

have said the equitable remedy of mandamus is available to order

members of the board of supervisors to ensure that the drainage district

meets a mandatory legal duty. Wise, 242 Iowa at 874, 48 N.W.2d at 249.

We have said that injunctive relief is available to order a drainage district

to repay money assessed pursuant to a void repair contract. Voogd, 188

N.W.2d at 393.

I am not sure the fine distinction between mandamus and

injunction matters much. We have said that mandamus would lie to

compel a city to abate a continuing public nuisance where it was under a

duty to abate the nuisance. Cowin v. City of Waterloo, 237 Iowa 202,

212–13, 21 N.W.2d 705, 710 (1946). In Wise, mandamus was issued

when there was a clear duty, yet no detailed instructions regarding how

the district could meet that duty. 242 Iowa at 874, 48 N.W.2d at 249.

Whether or not DMWW can make the case for a Wise-type remedy is of

course not clear at this early point in the litigation.

And, it seems to me that injunctive relief in a proper case should

be available, too. The value of injunctive relief is that it allows the

district court to shape the remedy to meet the contours of the problem.

See Brown v. Voss, 715 P.2d 514, 517 (Wash. 1986) (en banc) (noting

that a district court has broad discretionary power to shape injunctive

relief to the particular facts, circumstances, and equities of the case);

accord N. Star State Bank of Roseville v. N. Star Bank Minn., 361 N.W.2d

889, 895 (Minn. Ct. App. 1985); Reprod. Health Servs., Inc. v. Lee, 660

S.W.2d 330, 335 (Mo. Ct. App. 1983); Rhett v. Gray, 736 S.E.2d 873, 882 76

(S.C. Ct. App. 2012). In modern law, injunctions are available to meet a

wide variety of problems. See Stephens v. Borgman, 210 P.2d 176, 183

(Okla. 1949) (Davison, C.J., dissenting) (asserting that, while injunctive

relief was originally used sparingly by courts of equity, the modern

tendency is to grant injunctions when a clear showing is made of a

continuing or likely to be repeated wrong); Pearce v. Pearce, 226 P.2d

895, 897 (Wash. 1951) (“We recognize and approve the modern tendency

to protect personal rights by injunctive relief where there is no adequate

remedy at law.”). I do not see a reason why the remedy should not be

available if DMWW makes the appropriate legal and factual showing

supporting its claim.

The drainage districts suggest that because the development of

drainage infrastructure is authorized by law, it cannot be a nuisance.

The law is otherwise. McQuillan instructs us, for instance, that a

municipality cannot escape liability because a construction was

authorized by statute. 18 Eugene McQuillan, The Law of Municipal

Corporations § 53:77.24, at 624–25 (3d ed. 2013) [hereinafter McQuillan].

There is ample authority for this proposition. We said as much in

Kriener, 212 N.W.2d at 530, 535 (canvassing Iowa law and holding the

existence of nuisance not affected by lawfulness of an offending

establishment). There is also ample authority from other jurisdictions.

See, e.g., Friends of H St. v. City of Sacramento, 24 Cal. Rptr. 2d 607, 611

(Ct. App. 1993); Delta Air Corp. v. Kersey, 20 S.E.2d 245, 250 (Ga. 1942);

Webb v. Town of Rye, 230 A.2d 223, 226 (N.H. 1967). Ordinarily, a

municipality is liable for maintaining or contributing to a nuisance to the

same extent as an individual. Miller v. Town of Ankeny, 253 Iowa 1055,

1061, 114 N.W.2d 910, 914 (1962) (upholding instruction that would

allow town to be held liable for improper construction and operation of a 77

sewage treatment plant resulting in a nuisance); McQuillan § 53:77.24,

at 627–28 & n.11.

3. Nuisance as basis for equitable relief to abate pollution generally.

I now examine the underlying substantive basis of DMWW’s claim for the

remedy of an injunction. DMWW claims that Iowa nuisance law provides

a basis for equitable relief.

We recently canvassed the application of nuisance law to

environmental matters in Freeman, 848 N.W.2d at 66–69. As we noted

in Freeman, common law nuisance theory has provided a remedy for

environmental wrongs reaching back into the seventeenth century. Id. at

66. We noted in Freeman the availability of nuisance to address

environmental harms was endorsed by the Restatement (Second) of

Torts, which included sections on both public and private nuisance. Id.;

see Restatement (Second) of Torts §§ 821B–821E, at 87–104 (1979). We

quoted a leading commentator who noted that nuisance “continues to be

the fulcrum of what is called today environmental law.” Freeman, 848

N.W.2d at 66–67 (quoting 1 William H. Rodgers, Jr., Environmental Law:

Air and Water § 2.1, at 29 (1986)). We noted in Freeman that nuisance

theory had been recognized in Iowa for decades in the environmental

contexts. Id. at 67; see also Kriener, 212 N.W.2d at 536 (finding noxious

odor from sewage facility amounted to a private nuisance); Ryan v. City of

Emmetsburg, 232 Iowa 600, 603, 4 N.W.2d 435, 438 (1942) (concerning a

private nuisance arising from sewer system).

We further recognized in Freeman that the Iowa legislature

explicitly endorsed nuisance theory by enacting a statutory nuisance

action in Iowa Code section 657.1. 848 N.W.2d at 67. We have

consistently held that the statutory nuisance provisions do not preempt

common law nuisance claims but supplement them. Id. 78

In Freeman, we recognized the modern trend to control the

environment through the enactment of regulatory statutory regimes. Id.

at 68–69. We pointed out in Freeman, however, that the purpose of

regulatory statutory environmental regimes was to protect the public

generally and not to provide a remedy for special harms to property at a

specific location. Id. at 69. As a result, we held that applicable

provisions of the Clean Air Act did not preempt state common law

nuisance claims. Id. at 84–85.

Freeman involved a case of air pollution, not water pollution. But,

under a Freeman-type analysis, nuisance theory provides a potential

basis for an injunction in cases involving water pollution that has not

been preempted by state or federal statutes dealing with water pollution.

4. Appropriateness of nuisance remedy against drainage districts.

From a policy perspective, the process of adjudication of nuisance

claims—with the rules of evidence, the orderly development of a record,

thorough consideration by a fair and impartial trial judge, and the

possibility of appeal to a dispassionate appellate court—has many

attractive qualities. Plaintiffs bear the burden of proving causation, and

the degree of harm is based in fact, not supposition. Remedies are

specifically sculpted to meet the factual showing of the plaintiffs.

The case-by-case nuisance approach is consistent with what is

known in environmental law as the PPP, or the “polluter pays principle.”

The PPP principle is recognized as a norm in international environmental

law and, according to one commentator, should apply when agricultural

activities impose environmental harm that affects private and public

property. See Margaret Rosso Grossman, Agriculture and the Polluter

Pays Principle: An Introduction, 59 Okla. L. Rev. 1, 3 (2006); Boris N.

Mamlyuk, Analyzing the Polluter Pays Principle Through Law and 79

Economics, 18 Se. Envtl. L.J. 39, 42 (2009); Ved P. Nanda, Agriculture

and the Polluter Pays Principle, 54 Am. J. Comp. L. 317, 319–20 (2006).

The majority suggests that solutions to water quality are better

advanced by the “elected branches of government who are responsible to

the people.” The majority ignores the fact that the legislature has

enacted a nuisance statute that DMWW seeks to enforce. See Iowa Code

ch. 657. The Iowa legislature, unlike the majority, has thus generally

endorsed nuisance as a means of environmental protection. It has

provided a specific statutory mechanism for abatement of nuisances and

payment of expenses associated with abatement. See Iowa Code § 657.7.

The legislature added an exclamation point by making the creation or

continuing of a nuisance a criminal offense. See id. § 657.3.

And, tellingly, the legislature crafted a narrow exception to Iowa

Code chapter 657 for certain animal feeding operations. 17 Id.

§ 657.11(2). That is the only exception in chapter 657. The legislature

thus contemplated who might be exempt from nuisance requirements

generally. It did not exempt drainage districts. See Reyes-Fuentes v.

Shannon Produce Farm, Inc., 671 F. Supp. 2d 1365, 1369 (S.D. Ga. 2009)

(finding that the expression of one exception in a statute implies the exclusion of other exceptions); accord Pugliese v. Pukka Dev., Inc., 550

F.3d 1299, 1304 (11th Cir. 2008); Winkle v. State, 841 S.W.2d 589, 591

(Ark. 1992); In re Cadwell’s Estate, 186 P. 499, 501 (Wyo. 1920).

5. Relevant drainage district caselaw regarding nuisance claims.

DMWW seeks relief in this case under both common law and statutory

nuisance theories. As indicated above, there is nothing in our caselaw

suggesting that equitable remedies are not available to abate pollution

17This provision was declared unconstitutional in Gacke, 684 N.W.2d at 179. 80

allegedly caused by drainage districts. In Vogt, we allowed a damages

remedy in a case brought against a city for discharging sewage into the

stream to the material injury of lower riparian owners. 133 Iowa at 363,

110 N.W. at 603–04. Nothing in the case indicated equitable relief was

not available for this type of harm. While we denied an injunction

against a drainage district in Maben, we took great pains to distinguish

overflow from environmental nuisances. 187 Iowa at 1068, 175 N.W. at

515–16. Finally, we granted an injunction against a drainage district in

Voogd to prohibit the collection of additional installment payments. 188

N.W.2d at 395.

Further, we have held in several cases that equitable remedies are

available against the management of a drainage district to force

compliance with the law. To me, in addition to cases like Iowa

Employment Security, these cases are the death knell of the no-legal-

entity approach in other cases, an obvious proposition not recognized by

the majority. And, if mandamus is available in an appropriate case, as

our cases clearly establish, why would injunctive relief not be available in

an appropriate case, as it was in Voogd?

Thus, unlike on the question of money damages, our cases do not

uniformly and clearly hold that injunctive relief is not available in the

context of a pollution case. Indeed, if anything, they suggest that an

injunction might be available in proper circumstances. Our cases are

plainly not entitled to stare decisis on the question of availability of an

injunction to abate a nuisance because there has been no clear and

definitive ruling on the issue as framed in this case. I now turn to the

live-wire substantive question—whether an injunction is precluded as a

matter of law in this case at this early stage of the litigation. 81

6. Availability of injunction to abate nuisance in this case.

Assuming injunctive relief is available in appropriate cases, as I do, the

next question is whether a nuisance action is available to the plaintiffs to

abate environmental harms. As we noted in Freeman, the Iowa

legislature has enacted a provision establishing a statutory nuisance

claim that supplements and does not supplant common law nuisance.

848 N.W.2d at 67. Further, in Freeman, it is noteworthy that a

comprehensive federal regulatory framework did not preempt state

nuisance regulation. Id. at 69–70. Nuisance law is a sturdy feature of

the Iowa legal landscape.

The defendants argue that Iowa Code section 468.2(1) precludes

such a nuisance action. That provision provides, “The drainage of

surface waters from agricultural lands and all other lands, including

state-owned lakes and wetlands, or the protection of such lands from

overflow shall be presumed to be a public benefit and conducive to the

public health, convenience, and welfare.” Iowa Code § 468.2(1).

In my view, the statute does not categorically eliminate nuisance

claims. It only establishes a presumption that the activities of a drainage

district are in the public interest, but that presumption may be rebutted.

Our rule of thumb is that a statutory presumption is rebuttable, not

conclusive, unless the legislature has clearly expressed an intent to the

contrary by saying it is conclusive. Larsen v. Bd. of Trs., 401 N.W.2d

860, 863 (Iowa 1987) (Wolle, J., dissenting); Neighbors v. Iowa Elec. Light

& Power Co., 175 N.W.2d 97, 102 (Iowa 1970). The majority is wrong to

think otherwise.

My view is supported by an examination of other provisions of Iowa

Code chapter 468 where the legislature, unlike in section 468.2(1), did

use language establishing conclusive or irrebutable presumptions. 82

Specifically, Iowa Code section 468.47 is entitled “Evidence—conclusive

presumptions” and provides that no evidence is “competent to show that

any of the lands in [a drainage] district . . . will not be benefited by [an]

improvement in some degree.” A similar provision, with an escape

clause, may be found in Iowa Code section 468.92, entitled “Conclusive

presumption on appeal.” Similarly, Iowa Code section 468.171 is entitled

“Conclusive presumption of legality.” This section states a final order of

a drainage district “shall be conclusive that all prior proceedings were

regular and according to law.”

Plainly, the legislature knows how to establish conclusive

presumptions. It repeatedly did so in three sections of chapter 468, two

involving a question of fact, another involving a question of law. It did

not do so in section 468.2(1). To judicially caret in the term “conclusive”

in section 468.2(1) would be to rewrite the statute. We should decline

that invitation. See In re A.M., 856 N.W.2d 365, 378 (Iowa 2014) (“We are

not free to rewrite a statute in the guise of interpretation.”).

Yet, as with the issue of money damages, the question remains

whether a drainage district would have the statutory authority to comply

with a mandamus or injunction to abate a nuisance. The statutory

powers of a drainage district include the power to engage in repairs and

improvements in a drainage district. Iowa Code § 468.126. The Code

further provides that the powers of a drainage district are to be liberally

construed. Id. § 468.2; see also Clary, 135 Iowa at 495, 113 N.W. at

333. Yet, the question remains whether a drainage district may take

affirmative steps to abate a nuisance under the maintain-and-repair

provisions of the statute. 83

Iowa Code chapter 468 has statutory provisions related to repairs

and improvements. Under the repair provision of Iowa Code section

468.126(1)(a), the board of supervisors is authorized to

restore or maintain a drainage or levee improvement in its original efficiency or capacity, and for that purpose may remove silt and debris, repair any damaged structures, remove weeds and other vegetable growth, and whatever else may be needed to restore or maintain such efficiency or capacity or to prolong its useful life.

Under the improvement provision of Iowa Code section 468.126(4)(a), the

board of supervisors is authorized to engage in improvements. An

“improvement” is defined as a project “to expand, enlarge, or otherwise

increase the capacity of any existing ditch, drain, or other facility above

that for which it was designed.” Iowa Code § 468.126(4).

The question becomes whether under these repair-and-

improvement provisions a drainage district would have authority to

implement whatever abatement measures that might be required to

remove nitrates from the water which it allegedly collects and deposits in

the Raccoon River. An argument may be made that the power to abate a

nuisance due to nitrate pollution does not fall into the express terms of

these statutes. Any would-be abatement effort does not seem to be a

repair in the sense of an action to “restore or maintain a[n] . . .

improvement in its original efficiency or capacity.” Id. § 468.126(1)(a).

And, it can be argued that abating a nuisance is not an improvement

because it fails to “expand, enlarge, or otherwise increase the capacity of

any existing ditch, drain, or other facility.” Id. § 468.126(4).

But if the power to abate a nuisance is not expressly stated, is it

necessarily implied? See In re Estate of Frentress, 249 Iowa at 786, 89

N.W.2d at 368. Iowa Code chapter 657, which has been around in one

form or another for a long time, states that it is a nuisance to pollute 84

rivers and streams. Iowa Code § 657.2(4). It is a crime to create or

continue a nuisance. Id. § 657.3. There is no pollution exception in the

law for drainage districts. Does the power to create, repair, and maintain

a drainage district necessarily imply the duty to comply with a generally

applicable nuisance statute that includes criminal penalties for

noncompliance and for which drainage districts are not exempted?

I conclude that it does. In particular, it seems to me that the

Maben case takes great pains to distinguish overflow cases, for which no

remedy is available against drainage districts, from pollution cases. See

187 Iowa at 1068–70, 175 N.W. at 515–16. If there was no potential

exposure of drainage districts for pollution-type claims, it would not have

been necessary to draw the distinction. While it would be claiming too

much to suggest that the mere fact that the Maben case distinguished

pollution cases is determinative on the issue before us, it does give us at

least some insight into contemporary thinking closer to the time of the

creation of drainage districts.

Further, it seems to me necessarily implied that if the drainage

district has the power to build a drainage system, it necessarily has the

power to build it in compliance with generally applicable law affecting

public health. There are no germane exemptions from external statutory

requirements in the extensive drainage district statute. Of course, the

Maben reasoning is correct in that there simply cannot be an overflow

claim because the removal of water from an area of land and introducing

that water into rivers is precisely what drainage districts do. Id. at 1063–

64, 175 N.W. at 513–14. Allowing an overflow action would thus devour

the entire statute. But the fact that an overflow claim cannot be made

has no bearing at all upon the pollution claim presented in this case.

Further, the holdings in Iowa Employment Security and Polk County 85

demonstrate that drainage districts have duties outside the scope of Iowa

Code chapter 468. See Polk County, 377 N.W.2d at 241; Iowa Emp’t Sec.,

260 Iowa at 347, 149 N.W.2d at 291.

I conclude only at this juncture that an injunctive claim based

upon nuisance law is not precluded as a matter of law at this early stage

of the litigation. See City of Springfield v. N. Fork Drainage Dist., 249

Ill. App. 133, 152 (1928) (permitting a city to sue drainage district for

pollution); Township of Hatfield v. Lansdale Mun. Auth., 168 A.2d 333,

334 (Pa. 1961) (affirming municipality’s requested injunction against

water authority). The DMWW raises claims not with respect to the

legislature’s distribution of power, but claims related to the improper

exercise of power that the legislature had conferred.

This does not mean, of course, that a court should accept the facts

are as alleged by DMWW. Under my approach, DMWW would carry the

burden of proving its factual allegations. Further, even if the facts are

proved, I do not believe that DMWW would necessarily be entitled to an

injunction. In my view, the drainage district defendants should be

allowed to assert affirmative defenses about which we have no occasion

to now opine. An injunction is an equitable remedy. Any court

considering whether to grant an injunction in a nuisance case must

balance the equities by determining, among other things, the scope of the

problem and the benefits and burdens of any proposed abatement. See

Ronald J. Rychlak, Common-Law Remedies for Environmental Wrongs:

The Role of Private Nuisance, 59 Miss. L.J. 657, 689–93 (1989).

The majority suggests, without any instructions from the certifying

court or factual basis in the nonexistent record, that the most efficient

cost avoider may be the DMWW and not the drainage district. For busy

courts seeking to maximize efficiency, and particularly federal courts, 86

there is a temptation to terminate litigation prematurely based on the

perceived factual merits of the underlying controversy. Although the

question of most efficient cost avoider may be a factor when the court

considers whether equitable relief is appropriate at the end of the

litigation, such speculation cannot be used to slam the courthouse doors

on DMWW at the beginning of the litigation. And, it may also be that

certain actions that might effectively abate the nuisance are not, in fact,

within the power of the drainage district. That possibility, however, goes

to the merits of this case and cannot be used, as a matter of law, to

terminate this proceeding.

For the above reasons, I conclude that DMWW should be allowed

to attempt to make its case on its injunctive claim against the drainage

district defendants when the plaintiff seeks compliance with common

and statutory environmental regulations.

V. Takings Claim Arising from Alleged Pollution of Raccoon River. A. Introduction. I now turn to the question of whether DMWW

may bring a takings claim against the drainage district defendants

arising out of DMWW’s assertion that because of pollution their right to

clean water has been impaired and that the invasion of the nitrates into

the DMWW property amounts to a trespass.

First, I consider whether DMWW, as a governmental subdivision,

has any property which may fall within the scope of property protected

from uncompensated takings. Second, I consider whether one

governmental subdivision may bring a takings claim against another

governmental subdivision. Third, I consider whether DMWW, by alleging

that the drainage districts have polluted the Raccoon River, has alleged a

taking of a compensable property interest. Fourth, I consider whether 87

the legislative authorization to build drainage districts defeats the

takings claim in this case.

B. Takings Claim of Government Bodies: The Question of

1. Overview. There is a relatively small body of literature and a

large body of caselaw relating to the question of whether a governmental

subdivision may bring a takings claim which is limited to “private

property.” See Iowa Const. art. I, § 18 (“Private property shall not be

taken for public use without just compensation first being made . . . .”).

The prevailing view is that municipal governments may bring takings

claims when other governmental entities seize property, at least under

certain circumstances.

2. United States Supreme Court caselaw on government as holder of

private property: A stranger in town. The United States Supreme Court

has considered the question of whether a government entity may be

entitled to a takings claim when the United States seizes its property.

The central question, of course, was whether government-owned property

could be considered “private property” for purposes of the Fifth

Amendment.

The Supreme Court’s key case is United States v. 50 Acres of Land,

469 U.S. 24, 105 S. Ct. 451, 83 L. Ed. 2d 376 (1984). In 50 Acres, the

Supreme Court concluded that property held by local government could

be considered private property for takings purposes under the Fifth

Amendment. Id. at 31, 105 S. Ct. at 455–56, 83 L. Ed. 2d at 383. The

thrust of the rationale was that the loss to the government entity may be

as severe as the loss to a private person or entity. Id. at 31, 105 S. Ct. at

455, 83 L. Ed. 2d at 383. According to the 50 Acres Court, 88 When the United States condemns a local public facility, the loss to the public entity, to the persons served by it, and to the local taxpayers may be no less acute than the loss in the taking of private property. Therefore, it is most reasonable to construe the reference to “private property” in the Takings Clause of the Fifth Amendment as encompassing the property of state and local governments when condemned by the United States.

Id. at 31, 105 S. Ct. at 455–56, 83 L. Ed. 2d at 383.

The case turned on two features. First, as indicated above, the

term “private property” was not narrowly construed but instead was

subject to a functional approach based on the impact of the deprivation

on local government. Second, however, one commentator has referred to

the case’s “stranger in town” aspect—namely, the fact that 50 Acres

involved a takings claim by a municipality against a different sovereign.

See John M. Payne, Intergovernmental Condemnation as a Problem in

Public Finance, 61 Tex. L. Rev. 949, 954 & n.17 (1983); see also United

States v. Carmack, 329 U.S. 230, 242, 67 S. Ct. 252, 257, 91 L. Ed. 209,

217 (1946); Trenton, 262 U.S. at 188, 43 S. Ct. at 537, 67 L. Ed. at 941.

Undeniably, 50 Acres and its progeny involved local government

takings claims against the federal government. Thus, the taking

authority was thought to be a “stranger in town” in the sense that there

was no direct legal relationship between the taker and the party suffering

the loss. 18 Yet, the case unmistakably stands for the proposition, not at

all binding on state courts construing their state constitutions, that the

property of a governmental subdivision might be considered “private

property” for takings purposes.

18This assumption, of course, is questionable. Under the Supremacy Clause, the state and federal governments are interconnected because valid exercises of federal executive and legislative power are binding on the states. See U.S. Const. art. VI, cl. 2. 89

3. State law authority on government property as “private.” State

courts have grappled with the question of whether government

subdivision property should be considered “private” for takings purposes.

Like 50 Acres, the state caselaw often reflects a functional approach to

the question.

The general theory developed in the state caselaw is that when

citizens of the state have a beneficial interest in the use of public

property there was no taking, but when property was thought to be only

locally beneficial, the taking was compensable. See Note, The Sovereign’s

Duty to Compensate for the Appropriation of Public Property, 67 Colum. L.

Rev. 1083, 1095–96 (1967) [hereinafter The Sovereign’s Duty]. This

concept was often expressed as a distinction between “governmental” and

“proprietary” purposes. Id. When a local government was deprived of

proprietary property, the taking was compensable. Id. But when the

property was considered governmental, there was no takings claim. Id.

The difference, as described by Judge Cooley of the Supreme Court

of Michigan, is that with respect to

the property [a city] holds for its own private purposes, a city is to be regarded as a constituent in State government, and is entitled to the like protection of its property rights as any natural person who is also a constituent.

People ex rel. Bd. of Detroit Park Comm’rs v. Common Council of Detroit, 28

Mich. 228, 240 (1873). A large body of state caselaw developed dealing

with the distinction between local government properties held in

governmental capacities and local government properties held in

proprietary capacities. See generally 1A Julius L. Sackman, Nichols on

Eminent Domain § 2.27, at 2–158 (3d ed. 2009) [hereinafter Nichols]

(citing cases); 2 Nichols § 5.06[8], at 5–336. The dichotomous approach

often led courts to make difficult factual determinations and to the 90

development in some jurisdictions of a potentially complex classification

system, with some types of local government property declared “in” and

some declared “out.” The Sovereign’s Duty, 67 Colum. L. Rev. at 1096–

97.

Certainly the governmental/proprietary approach has its critics.

Justice Frankfurter once characterized the distinction as a “quagmire

that has long plagued the law of municipal corporations.” Indian Towing

Co. v. United States, 350 U.S. 61, 65, 76 S. Ct. 122, 124, 100 L. Ed. 48,

53–54 (1955). Commentators have declared that the cases are “in

disarray” and reflect a “mindless application of labels.” Rudolph V. Parr,

State Condemnation of Municipally-Owned Property: The Governmental-

Proprietary Distinction, 11 Syracuse L. Rev. 27, 34 (1960); Hugh D.

Spitzer, Realigning the Governmental/Proprietary Distinction in Municipal

Law, 40 Seattle U. L. Rev. 173, 202–03 (2016).

The difficulties with the distinction have led some to call for a more

functional interpretation of the term “private property” in cases involving

municipalities. For instance, in City of Chester v. Commonwealth, the

Pennsylvania court, citing federal authority, stated generally that the loss

suffered by residents of a political subdivision is no less real that the loss

suffered by private individuals as condemnees. 434 A.2d 695, 702 (Pa.

1981). An Oregon appellate case cited the different tax bases of

government entities involved in takings litigation, noting that “port

districts are . . . distinct from the state. They are supported by a distinct

tax base and they serve a distinct constituency.” Brusco Towboat Co. v.

State By & Through Straub, 570 P.2d 996, 998 (Or. Ct. App. 1997)

(en banc). Reformers generally call for broadening, rather than

restricting, what constitutes private property, with a focus, like the

Oregon case, on different tax bases and constituencies. The Sovereign’s 91

Duty, 67 Colum. L. Rev. at 1119 (“The fact of particularized loss should

be sufficient to give a right to compensation to a unit of government.”).

Most caselaw, however, continues to adhere to the

governmental/proprietary distinction. In these jurisdictions, many have

considered whether a waterworks or similar utility involves a

governmental or proprietary function. The vast majority of cases indicate

that a waterworks involve a proprietary function for takings clause

purposes. See 2 Nichols § 5.06[8][b] n.56, at 5–340 (citing cases).

4. Iowa caselaw regarding takings of property held by

municipalities. There are only a few Iowa cases touching on the question

of whether a municipality has a takings claim under article I, section 18

of the Iowa Constitution. In State ex rel. White v. Barker, we stated that

municipal corporations are entitled to constitutional protections with

“respect to private and proprietary rights and interests,” and that “[i]t is

quite clear that the establishment and control of waterworks for the

benefit of the inhabitants of the city” is not a public purpose but is for

the city’s private benefit such that we would regard the waterworks as a

private corporation. 116 Iowa 96, 106, 89 N.W. 204, 207 (1902). In

State ex rel. Pritchard v. Grefe, we held that school property involved in a

consolidation did not involve a takings claim. 139 Iowa 18, 30–31, 117

N.W. 13, 18–19 (1908). In Miller Grocery Co. v. City of Des Moines, we

stated that the waterworks involved the city acting in its proprietary

capacity. 195 Iowa 1310, 1312–13, 192 N.W. 306, 307 (1923). In State

ex rel. Board of Railroad Commissioners v. Stanolind Pipe Line Co., we

generally endorsed the distinction between governmental and proprietary

functions. 216 Iowa 436, 441, 249 N.W. 366, 369 (1933); see also Mid-

Am. Pipeline Co. v. Iowa State Commerce Comm’n, 255 Iowa 1304, 1312,

125 N.W.2d 801, 805 (1964) (“[P]ublic property is in some respects and 92

under some conditions protected by the constitutional provisions

prohibiting the taking of private property without just compensation.”).

5. Discussion. Although the Iowa law is sparse, I conclude that

DMWW may bring a takings claim against the drainage district in this

case. The approach of Barker, Miller, Stanolind, and Mid-America Pipeline

support this conclusion. As we have stated in a nongovernmental

takings context, the purpose of just compensation is “designed to bar

Government from forcing some people alone to bear public burdens

which, in all fairness and justice, should be borne by the public as a

whole.” Parkins v. Bd. of Supervisors, 636 N.W.2d 58, 69–70 (Iowa 2001)

(quoting Armstrong v. United States, 364 U.S. 40, 49, 80 S. Ct. 1563,

1569, 4 L. Ed. 2d 1554, 1561 (1960)). The same principle applies where

intergovernmental takings involve a shifting of benefits and burdens to

the disadvantage of a local government entity.

Further, even applying a more restrictive government/proprietary

approach than is reflected in some of our older caselaw, the operation of

a waterworks, consistent with the majority of cases in other jurisdictions,

has been considered proprietary in nature. See, e.g., Phillips v. City of

Bradenton, 187 So. 258, 259 (Fla. 1939); Hicks v. City of Monroe Utils.

Comm’n, 112 So. 2d 635, 642 (La. 1959); State ex rel. Mt. Sinai Hosp. of

Cleveland v. Hickey, 30 N.E.2d 802, 804 (Ohio 1940) (per curiam);

Stewart v. City of Cheyenne, 154 P.2d 355, 358 (Wyo. 1944).

My approach is consistent with the Nichols treatise on the law of

eminent domain. According to Nichols, the operation of a waterworks is

a private activity, in which municipal corporations

are mere aggregations of individuals living in the same neighborhood who have banded together to supply themselves with the necessities and conveniences of life . . . . In this character, they are clothed with the capacities of a 93 private corporation, and may claim its rights and immunities and are subject to its liabilities.

1A Nichols § 2.27 at 2–159. Thus, “[t]he property acquired by municipal corporations for the private benefit of their inhabitants is protected by

the constitution, and can be taken only by eminent domain, and upon

payment of its value.” Id. § 2.27, at 2–163.

C. Takings Claim of Government Subdivisions Against Other

Government Subdivisions: The Question of Standing. Closely related

to the question of whether government property may be considered

private for takings purposes is the question of whether government

subdivisions may bring takings claims against other state government

entities. Some cases stand for the broad proposition that a subdivision

cannot bring takings claims against other government entities on the

ground that the state itself created government subdivisions and that the

state cannot sue itself. Other cases, however, consistent with the

governmental/proprietary distinction discussed above, have held that

local governments may bring takings claims to prevent unfair shifting of

the benefits and burdens of government.

It would be wrong, however, to conclude, as the majority seems to,

that public entities can never raise any constitutional questions in

litigation with other state entities. There is certainly a narrow

proposition that is comparatively well established, namely, that

government subdivisions cannot challenge the constitutionality of

statutes under which they operate or under which they were created.

Dep’t of Revenue, 263 N.W.2d at 232.

This narrow proposition, to me, is defensible. A county cannot

complain that the state prohibited it from engaging in certain activities

because the state has the power to shape the configuration of its political 94

subdivisions. I have applied this narrow rule with respect to claims that

the legislative action allocating power to drainage districts but failing to

include a money-damage remedy violated various provisions of the Iowa

Constitution.

But these standing cases only advance a narrow proposition,

namely, that government subdivisions cannot challenge the state’s

limitations on their own authority. The cases do not stand for a broad,

general proposition that government subdivisions can never raise

constitutional claims. In my view, government subdivisions can raise

takings claims against other governmental subdivisions.

It is true, perhaps, that older caselaw contains sweeping language

about the lack of standing of government subdivisions to raise

constitutional questions. Specifically, in Hunter v. City of Pittsburgh, the

Supreme Court employed language, largely dicta, suggesting that

government subdivisions may not raise constitutional issues in disputes

against the state. 207 U.S. 161, 179, 28 S. Ct. 40, 46–47, 52 L. Ed. 151,

159 (1907). But the language in Hunter was not unqualified. According

to Hunter,

It will be observed that in describing the absolute power of the State over the property of municipal corporations, we have not extended it beyond the property held and used for governmental purposes. Such corporations are sometimes authorized to hold and do hold property for the same purposes that property is held by private corporations or individuals.

Later, in Trenton, the Supreme Court declined to apply the

governmental/proprietary distinction in a case where a municipality

sought to invoke the protections of the Federal Takings Clause against

the state. 262 U.S. at 191–92, 43 S. Ct. at 538, 67 L. Ed. at 942–43. 95

The Trenton Court thus held that, irrespective of the nature of the

activities of the municipality, the municipality could not invoke

constitutional protections against the state. Id.

But the Hunter–Trenton doctrine has fallen into disuse. It has not

been employed to bar a local constitutional challenge since 1933. See

Nixon v. Mo. Mun. League, 541 U.S. 125, 131, 124 S. Ct. 1555, 1560, 158

L. Ed. 2d 291, 299 (2004) (considering merits of municipalities’

Supremacy Clause challenge to a state statute); Romer v. Evans, 517

U.S. 620, 625–26, 116 S. Ct. 1620, 1624, 134 L. Ed. 2d 855, 861–62

(1996) (considering various municipalities Federal Equal Protection

Clause challenges to state constitutional provisions); Papasan v. Allain,

478 U.S. 265, 274–75, 106 S. Ct. 2932, 2938–39, 92 L. Ed. 2d 209, 224–

25 (1986) (remanding Equal Protection Clause challenges to state for

consideration on merits); Lawrence County v. Lead-Deadwood Sch. Dist.

No. 40–1, 469 U.S. 256, 257–58, 105 S. Ct. 695, 696, 83 L. Ed. 2d 635,

639 (1985) (considering merits of Supremacy Clause challenge, with

Hunter cited in dissent); Washington v. Seattle Sch. Dist. No. 1, 458 U.S.

457, 467, 102 S. Ct. 3187, 3193, 73 L. Ed. 2d 896, 905 (1982)

(considering merits of school district’s Federal Equal Protection Clause

challenge to a state statute); San Antonio Indp. Sch. Dist. v. Rodriguez,

411 U.S. 1, 5 n.2, 93 S. Ct. 1278, 1282 n.2, 36 L. Ed. 2d 16, 27 n.2

(1973) (accepting school districts intervention in plaintiff’s Equal

Protection Clause challenge to state’s school finance scheme); Bd. of

Educ. v. Allen, 392 U.S. 236, 240, 88 S. Ct. 1923, 1925, 20 L. Ed. 2d

1060, 1063–64 (1968) (considering school board challenge to state

mandates on expenditures under Establishment Clause); see also

Kathleen S. Morris, The Case for Local Constitutional Enforcement, 47

Harv. C.R.-C.L. L. Rev. 1, 3–4 (2012) [hereinafter Morris]. 96

The cases of Gomillion v. Lightfoot, 364 U.S. 339, 81 S. Ct. 125, 5

L. Ed. 2d 110 (1960), and Allen, 392 U.S. at 236, 88 S. Ct. at 1923, 20

L. Ed. 2d at 1060, illustrate the erosion of Hunter. In Gomillion, Justice

Frankfurter limited the scope of Hunter and Trenton to the specific

constitutional provisions involved in those cases, namely the Contract

Clause, the Due Process Clause, and the Equal Protection Clause of the

United States Constitution. 364 U.S. at 344, 81 S. Ct. at 128, 5

L. Ed. 2d at 115. According to the Court,

[A] correct reading of the seemingly unconfined dicta of Hunter and kindred cases is not that the State has plenary power to manipulate in every conceivable way, for every conceivable purpose, the affairs of its municipal corporations, but rather that the State’s authority is unrestrained by the particular prohibitions of the Constitution considered in those cases.

Id. Additionally, the Gomillion Court noted that “[l]egislative control of

municipalities . . . lies within the scope of relevant limitations imposed by

the United States Constitution.” Id. at 344–45, 81 S. Ct. at 129, 5

L. Ed. 2d at 115. As noted by one later federal circuit, “Hunter, Trenton,

and allied cases are substantive holdings that the [Federal] Constitution

does not interfere in states’ internal political organization. They are not decisions about a municipality’s standing to sue its state.” Rogers v.

Brockette, 588 F.2d 1057, 1069 (5th Cir. 1979); see also Michael A.

Lawrence, Do “Creatures of the State” Have Constitutional Rights?:

Standing for Municipality to Assert Procedural Due Process Claims Against

the State, 47 Vill. L. Rev. 93, 101 (2002) [hereinafter Lawrence].

Further, the animating principle in Hunter and Trenton is that

federal courts should not consider federal constitutional claims brought

by government subdivisions against the state. In other words,

considerations of federalism played a significant role in denying standing 97

for adjudication of intragovernmental disputes in state court. Hunter

and Trenton are not authority on the question of whether a government

subdivision may bring state constitutional claims in a state court against

the state. See Bd. of Levee Comm’rs of the Orleans Levy Bd. v. Huls, 852

F.2d 140, 143 (5th Cir. 1988) (finding the concept of state suing itself

untenable in federal system).

Indeed, we have at least entertained constitutional challenges

raised by local governments against state entities in contexts other than

challenges to limitations of power. For example, in City of Coralville v.

Iowa Utilities Board, the city challenged a tariff regime promulgated

pursuant to Iowa Code chapter 476 and sought to be enforced by the

Iowa Utilities Board. 750 N.W.2d 523, 527 (Iowa 2008). The city’s

challenge was in part rooted in the uniformity requirements of article I,

section 6 and article III, section 30 of the Iowa Constitution, collectively

viewed as providing protection similar in scope, import, and purpose to

the equal protection provisions of the Fourteenth Amendment to the

Federal Constitution. Id. at 530. We considered this challenge on the

merits, concluding under the facts and circumstances presented that

there was no constitutional infirmity. Id. at 531.

According to one authority, municipal corporations may have

standing to assert procedural due process claims against their creating

state for the deprivation of certain liberty and property interests that do

not involve substantive matters of the state’s internal political

organization. See Lawrence, 47 Vill. L. Rev. at 94 n.7; Morris, 47 Harv.

C.R.-C.L. L. Rev. at 43–44. This is precisely the situation that arose in

City of Coralville, 750 N.W.2d at 526.

In any event, state takings law has traditionally recognized the

distinction between proprietary and governmental functions in its state 98

law and allowed municipalities to bring takings claims against other

governmental entities. As noted above, Iowa caselaw has long recognized

the distinction between proprietary and governmental functions. See,

e.g., Stanolind, 216 Iowa at 441, 249 N.W. at 369; Scott County v.

Johnson, 209 Iowa 213, 221, 222 N.W. 378, 381 (1928); Miller Grocery,

195 Iowa at 1312, 192 N.W. at 307; Grefe, 139 Iowa at 30–31, 117 N.W.

at 18–19; Barker, 116 Iowa at 106, 89 N.W. at 207–08. In these

traditional terms, in the context of a taking, a municipal water supplier

drawing water from a public water source is acting in a proprietary

capacity. DMWW in providing its services is not acting on behalf of the

state but as an agent of its local customers. See Morris, 47 Harv. C.R.-

C.L. L. Rev. at 7. DMWW should not be regarded as an instrument of the

state, but an instrument of the citizens it serves.

Thus, while it may be that a government subdivision cannot

challenge matters related to the internal political organization of the

state, it can challenge actions of government subdivisions that allegedly

run afoul of the specific constitutional command of the takings provision

of article I, section 18 of the Iowa Constitution. Therefore, I conclude

that DMWW has standing to bring its takings claim under Iowa

Constitution, article I, section 18 against the drainage district.

D. Property Interest: Riparian Water Pollution as Taking of

“Property.” According to one commentator, one of the most divisive

issues in contemporary natural resource law in the United States is

whether interests in water are recognized as property. Sandra B. Zellmer

& Jessica Harder, Unbundling Property in Water, 59 Ala. L. Rev. 679,

681–82 (2008). Among other things, how one characterizes the “stick” is

critical in the analysis. DMWW does not assert a right to allocation of

water, but rather a riparian right of use. 99

The word “riparian” comes from the Latin word for “bank.” Note,

Private Remedies for Water Pollution, 70 Colum. L. Rev. 734, 735 (1970).

Riparian rights are restricted to owners of land with a bank fronting

upon some point on the watercourse. Id. “Riparian rights do not depend

upon ownership of the watercourse’s bed and do not include ownership

of the water itself.” 1 Linda A. Malone, Riparian Rights, Environmental

Regulation of Land Use § 8.2, Westlaw LWATRR (database updated Nov.

2016) [hereinafter Malone]. Because of the pollution, according to

DMWW, it cannot use the water without expenditure of funds to remove

the nitrates.

It may seem a right of use is somewhat intangible and a novel

property concept. But easements across land involve a right of use and

they have long been recognized as a kind of property interest, and Iowa

caselaw supports that proposition. See Bormann v. Bd. of Supervisors,

584 N.W.2d 309, 316 (Iowa 1998); Hosford v. Metcalf, 113 Iowa 240,

244–45, 84 N.W. 1054, 1055–56 (1901) (describing how a license may

become an easement on the land which is then a transferable interest in

property); see generally Eugene Davis, Water Rights in Iowa, 41 Iowa L.

Rev. 216, 220–23 (1956).

And, there are many cases from other jurisdictions that suggest

that riparian rights include the right to water of a certain quality. See,

e.g., Harrell v. City of Conway, 271 S.W.2d 924, 926 (Ark. 1954); Collens

v. New Canaan Water Co., 234 A.2d 825, 831 (Conn. 1967); Montelious v.

Elsea, 161 N.E.2d 675, 678 (Ohio Ct. Com. Pl. 1959); see also Robin

Kundis Craig, Defining Riparian Rights as “Property” Through Takings

Litigation: Is There a Property Right to Environmental Quality?, 42 Envtl.

L. 115, 145 & n.232 (2012). The leading authorities approve of this

approach. See, e.g., 3 Tiffany Real Property § 730, Westlaw (3d ed. 100

database updated 2016) [hereinafter Tiffany] (“The right of the riparian

owner . . . extends to the quality as well as the quantity of the water

. . . .”); 1 Malone § 8.2 (“[A] riparian has a right to the natural flow of a

watercourse without change in quantity or quality.”).

The notion of a riparian right to water quality is embraced in the

Restatement (Second) of Torts. Section 850 provides a reasonable use

rule, stating “A riparian proprietor is subject to liability for making an

unreasonable use of the water of a watercourse or lake that causes harm

to another riparian proprietor’s reasonable use of water or his land.”

Restatement of the Law (Second) Torts § 850, at 217. Section 850A then

provides a number of factors to be considered in determining reasonable

use, including,

(a) [t]he purpose of the use,

(b) the suitability of the use to the watercourse or lake,

(c) the economic value of the use,

(d) the social value of the use,

(e) the extent and amount of the harm it causes,

(f) the practicality of avoiding the harm by adjusting the use or method of use of one proprietor or the other,

(g) the practicality of adjusting the quantity of water used by each proprietor,

(h) the protection of existing values of water uses, land, investments and enterprises, and

(i) the justice of requiring the user causing harm to bear the loss.

Id. § 850A, at 220; see generally 1 Malone § 8.2; A. Dan Tarlock, Law of

Water Rights and Resources § 3.60, Westlaw (database updated July

2016) (rejecting abstract standards or per se rules in favor of analysis of 101

what uses are in fact protected based on all relevant facts and

circumstances).

As is apparent from this test, the law of nuisance and the law of

takings overlap substantially. Many of the factors of nuisance are

similar to those in the Restatement. The inquiry of whether a nuisance

is present and whether a taking requiring just compensation has arisen

are determined by a similar, fact-based inquiry. 19

The relationship between nuisance and takings law is further

illustrated in our caselaw. For instance, in Bormann, we held that a

nuisance immunity provision in an agricultural land preservation statute

was an unconstitutional taking under the United States and Iowa

Constitutions. 584 N.W.2d at 321. We came to a similar conclusion in

Gacke, where we held that a statutory grant of nuisance immunity

amounted to a taking of property that required payment of just

compensation. 684 N.W.2d at 175.

How the Restatement (Second) section 850A factors would play out

in this litigation, of course, cannot be determined at this stage. Some of

the factors may support the drainage district defendants, while others

may support DMWW. At this time, the question of whether DMWW has a

valid property interest based on its riparian rights cannot be decided as a

matter of law, but is a question of fact. See 3 Tiffany § 730

(“[R]easonable use of water . . . [is] one of fact.”].

19We have no occasion to opine now whether the test for a taking of a riparian

interest in the use of water is the same as a nuisance claim or, as suggested by one commentator, somewhat more demanding. See Carlos A. Ball, The Curious Intersection of Nuisance and Takings Law, 86 B.U. L. Rev. 819, 878–79 (2006). Ball reads our Bormann case as indicating that the proof required for nuisance and taking is the same under Iowa law. Id. at 854–56. 102

E. State Authorization as Defeating Takings Claim. The

majority suggests that because drainage districts advance legitimate

state interests, there can be no takings claim. I view this as an incorrect

statement of law.

It certainly cannot be denied that drainage districts advance

legitimate state interests. But the argument proves too much. For

example, a sewage treatment plant advances legitimate state interests,

but can it be said categorically that there is no taking if a sewage

treatment plant so pollutes waterways that it is no longer safe to inhabit

downstream property? See Bowman v. Humphrey, 132 Iowa 234, 236–

37, 109 N.W. 714, 715 (1906) (holding that nuisance is still a nuisance

even if it comes from a “legitimate enterprise, or one of great and general

convenience and benefit”); accord Newton v. City of Grundy Center, 246

Iowa 916, 922, 70 N.W.2d 162, 165 (1955). I note with interest that

while some nuisance statues expressly exempt “conduct done or

mandated under a statute,” see, e.g., Cal. Civ. Code § 3482 (West,

Westlaw current through 2016 Reg. Sess., ch. 8 of 2015–2016 2d Ex.

Sess. and all propositions on the 2016 ballot); Wash. Rev. Code Ann.

§ 7.48.160 (West, Westlaw current through 2016 Reg. and 1st Special

Sess.). Iowa’s nuisance statute does not have such a provision.

Meiners and Yandel, authorities on law and economics, make the

aforementioned point by citing the classic case of Carmichael v. City of

Texarkana, 94 F. 561 (W.D. Ark. 1899). Roger Meiners & Bruce Yandle,

Common Law and the Conceit of Modern Environmental Policy, 7 Geo.

Mason L. Rev. 923, 945 (1999). The Carmichaels owned a forty-five-acre

farm in Texas located on the border with Arkansas. Id. at 561. The city

of Texarkana, Arkansas, built a sewage plant for the city and proceeded

to deposit sewage immediately opposite the plaintiffs homestead about 103

eight feet from the state line. Id. at 562. The defendant alleged the

sewage plant created a “cesspool” and was “a great nuisance, because it

fouls, pollutes, corrupts, contaminates, and poisons the water.” Id. The

court noted that the city was operating properly under state law to build

the sewer system. Id. at 564. But the lawfulness of the system did not

prevent the claim. Id. at 564–66. According to the court,

If a riparian proprietor has a right to enjoy a river so far unpolluted that fish can live in it and cattle drink of it, and the town council of a neighboring borough, professing to act under statutory powers, pour their house drainage and the filth from water-closets into the river in such quantities that the water becomes corrupt and stinks, and fish will no longer live in it, nor cattle drink it, the court will grant an injunction to prevent the continued defilement of the stream ....

Id. at 573.

Based on applicable caselaw, I do not think the fact that the

legislature has authorized the construction of drainage improvements

means that a takings claim cannot be presented when a drainage district

allegedly operates its drainage district in violation of the environmental

laws in Iowa Code chapter 657 and common law nuisance.

VI. Conclusion.

Based on the above reasoning, I would answer the certified

questions as follows.

Question 1: As a matter of Iowa law, does the doctrine of implied

immunity of drainage districts as applied in cases such as Fisher v.

Dallas County, 369 N.W.2d 426 (Iowa 1985), grant drainage districts

unqualified immunity from all of the damage claims set forth in the

Answer: Yes as to money damages generally. No as to just

compensation that might arise from a takings claim. 104

Question 2: As a matter of Iowa law, does the doctrine of implied

immunity grant drainage districts unqualified immunity from equitable

remedies and claims, other than mandamus?

Answer: No.

Question 3: As a matter of Iowa law, can the plaintiff assert

protections afforded by the Iowa Constitution’s inalienable rights, due

process, equal protection, and takings clauses against drainage districts

Answer: Yes with respect to the takings clause, no with respect to

all other clauses.

Question 4: As a matter of Iowa law, does the plaintiff have a

property interest that may be the subject of a claim under the Iowa

Answer: Possibly, depending on further factual development.

In summary, I would find that DMWW’s lawsuit should be allowed

to proceed. Of course, I express no view on the merits of the litigation.

Cady, C.J., joins this concurrence in part and dissent in part.