Amended August 22, 2017 Tom Brakke and Rhonda Brakke D/B/A/ Pine Ridge Hunting Lodge, and McBra, Inc. Vs. Iowa Department of Natural Resources and Iowa Natural Resource Commission

• Court: Supreme Court of Iowa
• Decided: June 16, 2017
• Docket: 15–0328
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 15–0328

Filed June 16, 2017

Amended August 22, 2017

TOM BRAKKE and RHONDA BRAKKE d/b/a/ PINE RIDGE HUNTING LODGE, and McBRA, INC.,

Appellees,

vs.

IOWA DEPARTMENT OF NATURAL RESOURCES and IOWA NATURAL RESOURCE COMMISSION,

Appellants.

Appeal from the Iowa District Court for Polk County, Dennis J.

Stovall, Judge.

The Iowa Department of Natural Resources appeals from a district

court order ruling an emergency order was outside of its legislative grant

of authority. AFFIRMED.

Thomas J. Miller, Attorney General, David L. Dorff, Assistant

Attorney General, for appellants.

Rebecca A. Brommel and Douglas E. Gross of Brown, Winick,

Graves, Gross, Baskerville and Schoenebaum, P.L.C., Des Moines, for

appellees. 2

APPEL, Justice.

This case presents a challenge by landowners to an emergency

order issued by the Iowa Department of Natural Resources (DNR) to

order the landowners to quarantine land formerly used as a whitetail

deer preserve for five years after whitetail deer harvested on the property

tested positive for chronic wasting disease, or CWD. The DNR emergency

order required the landowners to repair and maintain an electric fence

around the property for the quarantine period.

The landowners challenged the DNR emergency order in an

administrative appeal under the Iowa Administrative Procedures Act,

Iowa Code section 17A.19(10) (2013). An administrative law judge issued

a proposed decision, finding the DNR lacked the statutory authority to

issue the emergency order imposing a quarantine on the land. Upon

review by the Iowa Natural Resources Commission (NRC), the NRC

reversed the ruling, finding instead that the DNR had sufficient statutory

authority to support the order. The landowners appealed.

The district court reversed the NRC. The court held the DNR’s

emergency order was irrational, illogical, and wholly unjustifiable under

Iowa Code section 17A.19(10)(l) because the DNR was acting outside the

legislature’s grant of authority. The court, however, rejected the

landowners’ argument that the DNR’s emergency order amounted to a

compensable taking under the United States and Iowa Constitutions.

Upon entering its judgment, the court also refused to reopen the record

to allow the DNR to present additional evidence that the landowners

received certain indemnity payments from the United States Department

of Agriculture (USDA).

The DNR appealed, and the landowners cross-appealed. For the

reasons expressed below, we conclude the DNR lacked statutory 3

authority to issue an emergency order that imposed a quarantine on land

used as a whitetail deer-hunting preserve. We also conclude the action

of the DNR did not amount to an impermissible taking of property under

the United States Constitution or the Iowa Constitution. In light of these

rulings, we conclude the DNR’s challenge of the district court’s failure to

reopen the record to receive additional evidence is moot. We therefore

affirm the judgment of the district court.

I. Factual and Procedural Background.

A. Introduction: Positive CWD Test from Deer Harvested at

the Pine Ridge Hunting Lodge. In the 1990s, Tom and Rhonda Brakke

(the Brakkes) established a whitetail deer-breeding farm in Clear Lake,

Iowa. In 2005, they bought Pine Ridge Hunting Lodge (Pine Ridge) in

Davis County, Iowa, for $575,000. 1 The Brakkes’ purpose in purchasing

the hunting lodge was to provide an “end market” for the deer they raised

on the Clear Lake property. After the purchase, the Brakkes spent an

additional $200,000 to improve the property by constructing a cabin and

investing in additional fencing, including a fence to separate the northern

and southern halves of the property, which prevented deer from the

north side from entering the south side of the preserve and vice versa. The property was licensed as a whitetail deer-hunting preserve

under Iowa Code chapter 484C. The majority of the deer the Brakkes

placed at Pine Ridge came from their Clear Lake breeding farm.

Whitetail deer are susceptible to CWD. CWD is a type of

transmissible spongiform encephalopathy, also known as prion disease.

The DNR seeks to prevent the spread of CWD through voluntary

1Thenorth half of the property was purchased by McBra, Inc. through a 1031 exchange, while Tom and Rhonda personally purchased the south half of the property. For the purposes of this appeal, the owners will be referred to as the Brakkes. 4

agreements with breeding farms and statutory regulation of whitetail

deer-hunting preserves. See Iowa Code § 484C.12.

Originally, the Brakkes participated in a voluntary CWD program

at their Clear Lake breeding farm so they could transport and sell their

deer to others. With the success of their hunting operations at Pine

Ridge, in 2012 the Brakkes ceased enrollment of the Clear Lake breeding

farm in the voluntary CWD program because they were no longer in the

business of selling deer to other operations. The Brakkes, however,

continued to submit samples for testing from all deer harvested from

Pine Ridge as required by Iowa Code section 484C.12.

On June 16, the DNR received notification from a CWD testing lab

that a deer from Pine Ridge tested positive for CWD. The CWD-positive

deer originally came from the Brakkes’ breeding farm in Clear Lake.

After confirming the diagnosis, the DNR notified the Brakkes on July 19.

Prior to this case, no captive or wild deer had ever tested positive for

CWD in Iowa.

Under Iowa law, the Iowa Department of Agriculture and Land

Stewardship (IDALS) regulates whitetail deer on deer farms, while the

DNR regulates deer on whitetail deer-hunting preserves. Iowa Code

§ 170.1A(2); id. § 484C.2(2). On August 29, IDALS received permission

from the Brakkes to kill and test some deer at the Clear Lake farm. One

deer at the Clear Lake farm tested positive for CWD. At some point,

IDALS issued a notice of quarantine to the Brakkes for the Clear Lake

farm.

B. September 7, 2012 Agreement. On September 7, the

Brakkes and the DNR signed an “Agreement for Chronic Wasting Disease

Recovery Plan at Pine Ridge Hunting Lodge” (Agreement). Under the

Agreement, the Brakkes were allowed to carry out planned hunts at Pine 5

Ridge scheduled between September 8, 2012, and December 25, 2012.

The Brakkes, however, were required to install jointly with the DNR an

electronic fence inside the perimeter of the existing fence surrounding

Pine Ridge, with the costs split evenly between the DNR and Pine Ridge.

After construction of the electric fence, the Brakkes were solely

responsible for fence repair and maintenance. DNR staff was to conduct

weekly perimeter and fence inspections, with all repairs identified by

DNR staff to be submitted to the Brakkes in writing and completed by

the Brakkes within twenty-four hours.

Further, the Agreement provided that Pine Ridge be completely

depopulated of all deer and elk no later than January 31, 2013. All

animals were to be tested for CWD and disposed of in accordance with

applicable regulations at the Brakkes’ cost. Once the depopulation of

Pine Ridge was complete, the Brakkes, at their expense, agreed to clean

and disinfect the facility in compliance with DNR rules. Finally, the

parties agreed to a future operational plan to “be developed in

conjunction with the DNR after depopulation was complete.” The term of

the Agreement was from the date of execution until January 31, 2013.

One additional deer harvested at Pine Ridge in December 2012

tested positive for CWD. After the conclusion of the hunts, Pine Ridge

depopulated all its deer. In April 2013, all feeders were disinfected with

bleach, excess feed was buried, and all the terms of the Agreement were

fulfilled with one exception—the parties did not reach an agreement on a

“future operational plan” after depopulation of the animals.

C. April 26, 2013 Letter. On April 26, the Brakkes wrote a letter

to the DNR. In the letter, the Brakkes stated, “As you know, the area

utilized by Pine Ridge Hunting Lodge as a hunting preserve is subject to

a five (5) year quarantine.” The letter noted that the Brakkes had 6

“complied with all requirements of the September 7, 2012 agreement.”

The letter announced that if no response were received from the DNR,

the Brakkes would regard all requirements of the Agreement as satisfied.

The Brakkes further announced they would no longer be operating Pine

Ridge as a whitetail deer-hunting preserve.

By June 5, the DNR discovered the gates at Pine Ridge were

standing open and that portions of the fence were damaged or had been

removed.

D. The Emergency Order. On June 6, the DNR issued an

emergency order to require the Brakkes to stop their deconstruction of

the fence surrounding Pine Ridge and to immediately restore the portions

of the fence that were damaged. The emergency order also required the

Brakkes to close and keep closed all of the gates and to authorize the

DNR to access Pine Ridge for a limited duration in order to kill any deer

that may be present on the property. Finally, the emergency order

required the Brakkes submit and agree to execute a plan designed to

ensure that CWD be quarantined within, and not spread beyond, Pine

Ridge.

On June 7, the Brakkes closed the gates at Pine Ridge and

repaired the fence. On June 11, however, wild deer were seen inside the

fence.

E. The Administrative Hearing and the Natural Resource

Commission Appeal.

1. Introduction. The Brakkes appealed the emergency order on

June 25. In the letter initiating the appeal, the Brakkes claimed the

emergency order violated their United States and Iowa constitutional

rights and other property rights because (1) the DNR lacked jurisdiction

over Pine Ridge once it was no longer a hunting preserve; (2) the terms of 7

the quarantine and emergency order without compensation were an

unconstitutional taking; and (3) the DNR’s actions were arbitrary,

capricious, and an abuse of discretion.

The Brakkes cited six reasons why the DNR’s actions were

arbitrary and capricious. First, they claimed only a limited number of

deer species may contract CWD and CWD does not meaningfully limit

the growth of the species. Second, the Brakkes asserted that CWD is not

highly infectious and there is a reservoir of CWD in the wild that cannot

be fully eliminated. Third, the Brakkes claimed there are more harmful

diseases which affect deer for which the DNR does not impose such

drastic measures. Fourth, the Brakkes asserted the emergency order

would not materially affect the spread of CWD. Fifth, the Brakkes

claimed the DNR previously told them that it had no issues with

removing the fence. Finally, the Brakkes alleged that Pine Ridge was

separated into two sections and about half of the property was never

exposed to CWD.

2. Contested case hearing. A contested case hearing was held

beginning on November 18. Dale Garner of the DNR testified he

understood that the USDA indemnification plan for compensating owners

of deer killed as a result of positive CWD tests was no longer available.

Neither Iowa in general nor the DNR or the IDALS had an

indemnification plan.

The DNR presented evidence that, as a result of the quarantine,

the market value of Pine Ridge as real property had declined by

$165,000. The DNR’s appraiser testified that she had not calculated the

value of the Brakkes’ lost business in not being able to operate the

property as a hunting preserve. 8

The Brakkes presented evidence from a finance expert with

experience in hunting leases that the operating income for Pine Ridge for

the year 2013, without any quarantine or restrictions, would have been

$157,537. If the Brakkes had operated Pine Ridge as a farm instead of a

hunting preserve they would have lost $22,021. The finance expert

calculated the five-year total income of Pine Ridge as a hunting preserve

at $917,309, while the five-year total income of Pine Ridge as a farm

would be negative $100,465. If the Brakkes operated Pine Ridge as a

free-range hunting operation, with no fencing or captive animals, the

five-year income would be $143,307. On cross-examination, the finance

expert admitted he was not a certified public accountant or a licensed

appraiser, and he conducted an analysis that was not a business

valuation.

After the final hearing on January 8, 2014, the Brakkes and the

DNR entered a stipulation to submit additional evidence. The stipulation

stated that in December 2013, the Brakkes had killed all the remaining

deer at Pine Ridge and the DNR collected samples from all of the adult

deer. CWD was not detected in any of the samples.

On February 26, the administrative law judge (ALJ) issued her

proposed decision. The ALJ ruled the DNR lacked jurisdiction to issue

the emergency order. The ALJ determined Iowa Code chapter 484C only

authorized the DNR to quarantine “diseased preserve whitetail,” not the

land. Thus, the DNR’s interpretation of 484C.12 granting them the

power to impose a five-year quarantine on “the preserve and all

remaining animals located within the infected preserve” was irrational,

illogical, and wholly unjustifiable because the interpretation extended,

enlarged, and changed the legislature’s intent. 9

3. Appeal to NRC. On February 28, the DNR appealed the

proposed decision. On April 16, the parties submitted a second joint

stipulation regarding the submission of additional evidence. The parties

noted they “disagree[d] about the relevancy of this finding,” but “[a] wild

deer harvested in Allamakee County, Iowa in early December 2013 tested

positive for Chronic Wasting Disease.” The parties submitted briefs to

the NRC, and an unrecorded hearing was held on May 8.

On May 28, the NRC upheld the DNR’s emergency order. The

commission found the Brakkes had not met their burden in

demonstrating that Iowa Administrative Code rule 571—115.10,

authorizing the five-year quarantine “on the preserve and all remaining

animals located within the infected preserve,” was not authorized by

chapter 484C. The commission admitted that chapter 484C does not

explicitly state that the preserve land is to be quarantined, but it did not

need to because the statute also gave the DNR the duty to prevent the

spread of CWD. The commission held, as a matter of common sense and

given the scientific evidence, a quarantine on the land is required to

prevent the spread of CWD.

F. Judicial Review of NRC Action. The Brakkes petitioned for

judicial review of the NRC’s decision on June 27. On December 1, the

DNR moved for leave to present additional evidence to the NRC. The

DNR alleged the Brakkes had voluntarily depopulated their deer at the

Clear Lake farm in August of 2014 and were paid $917,100 in

indemnification by the USDA. The Brakkes resisted the motion. The

district court denied the motion on December 18, stating it did not

anticipate the need for any additional evidence in order for it to address

the issues. 10

The district court issued its ruling on February 13, 2015, reversing

the commission and additionally ruling the DNR’s actions were not a

taking under the United States or Iowa Constitutions. The court found

the DNR had been vested with interpretive authority and thus the DNR’s

interpretation of the law would only be reversed if it was “irrational,

illogical, or wholly unjustifiable.” The court, however, found it was

irrational, illogical, and wholly unjustifiable for the DNR to have

interpreted the statute to give it the authority to quarantine a hunting

preserve when chapter 484C only specified the authority to quarantine

“diseased preserve whitetail.” See Iowa Code § 484C.12(1). While the

legislature intended to prevent the spread of CWD, the legislature clearly

did not intend to give the DNR unfettered authority to quarantine any

land that came into contact with infected deer. The court also held that

the DNR’s actions were not a taking because the invasion to the Brakkes’

property was temporary, both specifically as a taking per se and also as a

taking involving the Penn Central 2 factors.

The DNR appealed the district court’s decision, and the Brakkes

cross-appealed.

II. Standard of Review. “Judicial review of agency decisions is governed by Iowa Code

section 17A.19.” Kay-Decker v. Iowa State Bd. of Tax Review, 857

N.W.2d 216, 222 (Iowa 2014). We “apply the standards of section

17A.19(10) to determine if we reach the same results as the district

court.” Renda v. Iowa Civil Rights Comm’n, 784 N.W.2d 8, 10 (Iowa

2010). The district court may properly grant relief if the agency action

prejudiced the substantial rights of the petitioner and if the agency

2Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124, 98 S. Ct. 2646, 2659 (1978). 11

action falls within one of the criteria listed in section 17A.19(10)(a)

through (n). Id.

“We defer to the agency’s interpretation of law when the legislature

has clearly vested that interpretation in the agency’s discretion.” Kay-

Decker, 857 N.W.2d at 222; Renda, 784 N.W.2d at 11; see also Iowa

Code § 17A.19(11)(c). We will overturn an agency’s interpretation of law

when it has discretion only if the agency’s interpretation is “irrational,

illogical, or wholly unjustifiable.” Iowa Code § 17A.19(10)(l); Renda, 784

N.W.2d at 11.

The standard of review for constitutional claims, including with

respect to takings, is de novo. Harms v. City of Sibley, 702 N.W.2d 91,

96 (Iowa 2005); Blumenthal Inv. Trusts v. City of West Des Moines, 636

N.W.2d 255, 260 (Iowa 2001).

III. Statutory Authority of the DNR to Quarantine Land Where Whitetail Deer Test Positive for CWD.

A. Introduction. The parties contest the scope of DNR

“quarantine” authority under Iowa Code section 484C.12. The Brakkes

point out the quarantine authority extends only to preserve whitetail

deer, while the DNR suggests the power to quarantine preserve whitetail deer necessarily includes the power to exclude deer from reserve property

where CWD has been discovered.

B. Statutory Framework.

1. Relevant provisions of the Iowa Administrative Procedures Act.

This appeal is brought under the Iowa Administrative Procedures Act.

Under Iowa Code section 17A.23(3), “[a]n agency shall have only that

authority or discretion delegated to or conferred upon the agency by law

and shall not expand or enlarge its authority or discretion beyond the

powers delegated to or conferred upon the agency.” 12

2. Statutory authority of NRC and DNR. Iowa Code chapter 484C

generally grants DNR the authority to regulate preserve whitetail. Iowa

Code § 484C.2(2). The statute defines “preserve whitetail” as a “whitetail

kept on a hunting preserve.” Id. § 484C.1(8). The statute defines a

hunting preserve as “land where a landowner keeps preserve whitetail as

part of a business, if the business’s purpose is to provide persons with

the opportunity to hunt the preserve whitetail.” Id. § 484C.1(6).

Iowa Code section 484C.12 concerns testing for CWD. Section

484C.12(1) provides,

Preserve whitetail that are purchased, propagated, confined, released, or sold by a hunting preserve shall be free of diseases considered reportable for wildlife . . . . The department may provide for the quarantine of diseased preserve whitetail that threaten the health of animal populations.

Id. § 484C.12(1). Section 484C.12(2) relates to plans for eradication of

diseases. It provides,

The landowner, or the landowner’s veterinarian, and an epidemiologist designated by the department shall develop a plan for eradicating a reportable disease among the preserve whitetail population. The plan shall be designed to reduce and then eliminate the reportable disease, and to prevent the spread of the disease to other animals. The plan must be developed and signed within sixty days after a determination that the preserve whitetail population is affected with the disease. The plan must address population management and adhere to rules adopted by the department. The plan must be formalized as a memorandum of agreement executed by the landowner or landowner’s veterinarian and the epidemiologist. The plan must be approved by the department.

Id. § 484C.12(2).

3. Rules related to quarantine arising from CWD. The DNR has

promulgated a rule related to its power to impose a quarantine as a

result of an outbreak of CWD. The rule provides, 13 A positive test result for chronic wasting disease will result in a minimum of a five-year quarantine on the preserve and all remaining animals located within the infected preserve. No animal movement in or out of the preserve shall occur during the quarantine period.

Iowa Admin. Code r. 571—115.10.

The language of the rule is different than that under Iowa Code

section 484C.12(1). Iowa Code section 484C.12(1) provides the DNR may

provide for the quarantine of “diseased preserve whitetail,” while the rule

provides for a five-year “quarantine on the preserve and all remaining animals located within the infected preserve.” Compare Iowa Code

§ 484.12(1), with Iowa Admin. Code r. 571—115.10.

C. Positions of the Parties. The DNR 3 argues the district court erred when it concluded that the DNR was irrational, illogical, and wholly

unjustifiable to interpret Iowa Code section 484C.12 as granting the DNR

authority to quarantine Pine Ridge.

The DNR argues that the word “quarantine” in Iowa Code section

484C.12(1) must be understood as not only applying to the whitetail deer

that were originally at Pine Ridge, but also to the physical property itself,

even when no deer are present. According to the DNR, prions that cause

CWD are known to persist in the environment for some time even after all infected deer have been removed or the property has ceased operating

as a hunting preserve. The DNR asserts that killing all deer and then

cleaning and disinfecting the premises are only part of a fully effective

response to an outbreak of CWD. The DNR maintains that in order to

provide effective containment of CWD, wild deer must be kept out of the

3Both the DNR and the NRC were named as parties in the litigation. For convenience, we will collectively refer to both parties as the DNR unless context suggests the singular usage. 14

premises for an extended period of time in order to prevent them from

becoming infected.

Interpreting a quarantine otherwise, the DNR asserts, is itself

irrational, illogical, and wholly unjustifiable because it ignores the

express intent of the legislature to combat CWD due to the particular

threat it poses to the health of Iowa’s animal populations, including the

wild populations. The DNR points out no other particular disease is

mentioned in chapter 484C but CWD, indicating this disease was of

special concern to the legislature. See Iowa Code § 484C.12. According

to the DNR, it would make no sense for a legislature so concerned with

CWD to deny the state regulatory authorities the ability to protect the

whitetail population from a primary pathway for transmission of the

disease, namely exposure to prion-contaminated land.

In response to the Brakkes’ argument that the plain meaning of

Iowa Code section 484C.12 clearly deprives the DNR of jurisdiction in

this case, the DNR argues we must view the statute as a whole. In

context, the legislature’s use of “hunting preserve” and “preserve

whitetail” do not reveal the legislature’s intent with respect to the term

“quarantine.” See id. The DNR asserts that restricting access to a space

is inherent in the term “quarantine.” The DNR also points to the

scientific evidence it introduced showing the continuing virulence of

prion-contaminated areas. The DNR concludes by disputing the

Brakkes’ characterization of CWD as a disease with low impact on deer

populations and the hunting industry.

The Brakkes state that when an agency exceeds its authority, it

acts without jurisdiction, and such acts are therefore void. Here, the

Brakkes argue that under the language of Iowa Code section 484C.12,

the DNR has jurisdiction only over “preserve whitetail” and “hunting 15

preserves,” which the statute defines. See id. § 484C.1(6), (8). The

Brakkes assert the DNR only has the power to impose a “quarantine of

diseased preserve whitetail” that threaten the health of animal

populations. Id. § 484C.12(1).

The Brakkes dispute the DNR’s focus on the word “quarantine.”

The Brakkes suggest the focus cannot be on the word “quarantine” but

instead on “quarantine of diseased preserve whitetail” under section

484C.12(1). The Brakkes note that as of June 6, 2013, the date of the

emergency order, they did not have any “diseased preserve whitetail” at

Pine Ridge, which itself was no longer a hunting preserve. According to

the Brakkes, agencies lose jurisdiction over licenses when the license

ends, with the only exception being when the legislature expressly

provides for continuing jurisdiction.

The Brakkes also dispute the significance of CWD on the health of

Iowa’s population of whitetail deer. According to the Brakkes, CWD

already exists at a low level in the wild deer population, with no scientific

evidence showing a negative aggregate effect of CWD on deer

populations. The Brakkes also argue that any harm CWD causes can be

mitigated by ordinary, animal disease-management techniques—a five-

year quarantine is not scientifically justified.

The Brakkes stress that, before the emergency order, the DNR had

never issued a quarantine nor any instructions to the Brakkes indicating

there was a quarantine on the property. Under the agreement the

parties signed, deer were permitted to enter and leave Pine Ridge, thereby

suggesting a quarantine was not in place. The Brakkes also argue that

because the DNR believed it did not have the ability to close the gates at

Pine Ridge once it learned the gates were open, DNR did not believe it

had a quarantine on Pine Ridge or jurisdiction to take action on its own 16

against Pine Ridge. The DNR’s claim that the quarantine existed as a

matter of law prior to the Brakkes’ surrender of their license is, according

to the Brakkes, belied by the facts.

D. Framework for Assessment of the Validity of the

Substantive Agency Rule. An agency rule is “presumed valid unless the

party challenging the rule proves ‘a “rational agency” could not conclude

the rule was within its delegated authority.’ ” Meredith Outdoor Advert.,

Inc. v. Iowa Dep’t of Transp., 648 N.W.2d 109, 117 (Iowa 2002) (quoting

Milholin v. Vorhies, 320 N.W.2d 552, 554 (Iowa 1982)); see also Iowa

Med. Soc. v. Iowa Bd. of Nursing, 831 N.W.2d 826, 839 (Iowa 2013). The

party seeking to invalidate a rule is required to show by clear and

convincing evidence that the rulemaking was beyond the agency’s

statutory authority. Davenport Cmty. Sch. Dist. v. Iowa Civil Rights

Comm’n, 277 N.W.2d 907, 910 (Iowa 1979) (suggesting the standard is

the same as “substantial evidence”); Schmitt v. Iowa Dep’t of Soc. Servs.,

263 N.W.2d 739, 744 (Iowa 1978) (analyzing whether agency’s

administrative rule was “beyond the authority delegated to it”); Arthur

Earl Bonfield, The Iowa Administrative Procedure Act: Background,

Construction, Applicability, Public Access to Agency Law, the Rulemaking

Process, 60 Iowa L. Rev. 731, 908–09 (1975).

While we grant deference to the agency’s interpretation of the

statute when the legislature has clearly vested that interpretation in the

agency, ultimately the interpretation and construction of a statute is an

issue for the court to decide. Office of Consumer Advocate v. Iowa Utils.

Bd., 744 N.W.2d 640, 643 (Iowa 2008); accord Schmitt, 263 N.W.2d at

745. In interpreting the grant of statutory authority to the agency, we

“will not look beyond the express terms of the statute if the text of the

statute is plain and its meaning clear.” Neal v. Annett Holdings, Inc., 814 17

N.W.2d 512, 519 (Iowa 2012). A statute is not plain or clear “if

reasonable minds could differ or be uncertain as to the meaning of the

statute.” Carolan v. Hill, 553 N.W.2d 882, 887 (Iowa 1996). “The plain

provisions of a statute cannot be altered by administrative rule.”

Schmitt, 263 N.W.2d at 745.

An agency possesses no common law or inherent powers.

Branderhorst v. Iowa State Highway Comm’n, 202 N.W.2d 38, 41 (Iowa

1972). The power of the agency is limited to the power granted by

statute. Id. at 40; see also Holland v. State, 115 N.W.2d 161, 163–64

(Iowa 1962). Likewise, a court may not ignore the clear language of a

statute and impose its own ideas through the guise of construction, even

if it is the best way to promote public welfare and achieve a desirable

result. Holland, 115 N.W.2d at 164.

E. Discussion.

1. Straightforward interpretation of legislative language. A

straightforward reading of the language of Iowa Code section 484C.12

supports the Brakkes’ position. The term “quarantine” cannot be

wrenched from the statutory language that follows it. The term

“quarantine” is modified by the phrase “of diseased preserve whitetail.”

See Iowa Code § 484C.12(1). It does not allow for quarantine of

nondiseased whitetail or whitetail that are not preserve whitetail.

The DNR argues the natural and logical reading would produce

absurd results. The question arises whether the absurdity doctrine

should be invoked here to support the DNR’s administrative rule and the

DNR emergency order upon which it is based.

2. Overview of the doctrine of absurdity. The doctrine of absurdity

has a good pedigree. Sutherland Statutory Construction, for instance,

notes that ordinarily, ambiguous statutory language should be construed 18

in a fashion that produces a reasonable result. 2A Norman J. Singer &

Shambie Singer, Statutes & Statutory Construction § 45:12, at 104–06

(7th ed. rev. 2014) [hereinafter Statutory Construction]. But Sutherland

goes further. According to Sutherland, courts may use a “variant of the

‘reasonableness’ rule even absent ambiguity . . . when an act’s plain,

clear, literal meaning produces an unintended, absurd result.” Id. at

115. Sutherland instructs that courts find it “fundamental” that

departure from a literal construction is justified “when such a

construction would produce an ‘unreasonable’ or ‘absurd’ or

‘unworkable’ or ‘unjust’ or ‘unlikely’ result clearly inconsistent with the

purposes and policies of the act in question.” Id. at 115–19 (footnotes

omitted).

It is important at the outset to distinguish between interpreting

ambiguous statutes to avoid absurd results and declining to enforce the

literal terms of a statute to avoid absurdity. It is universally accepted

that where statutory terms are ambiguous, courts should interpret the

statute in a reasonable fashion to avoid absurd results. See id. § 46:7, at

279 (“All courts apparently agree that a finding of ambiguity opens

statutory construction to the full range of familiar, interpretive tools.”).

The true absurdity doctrine involves a different scenario. Under

the absurdity doctrine, a court declines to follow the literal terms of the

statute to avoid absurd results. See id. § 45:12, at 115. As noted by

Sutherland, this is a different question from how courts proceed upon a

finding of ambiguity. Id. Here is where the absurdity doctrine becomes

controversial. To what extent may a court evade or ignore the literal

terms of a statute to avoid a result that is not simply poor public policy,

but is so unreasonable that it could not have been intended by the 19

legislature and reflects the inherent limit of the legislative process to

foresee various applications of a statute?

3. Caselaw from other jurisdictions applying absurdity doctrine.

The cases of the United States Supreme Court have oscillated between a

textual approach that hews to a close parsing of legislative texts and a

more purposeful approach to the construction of statutes.

Support for the absurdity doctrine goes back as far as 1868. In

United States v. Kirby, the Supreme Court had occasion to ponder the

absurdity doctrine. 74 U.S. 482, 486 (1868). In that case, a statute

made it a crime to “ ‘knowing[ly] and wil[l]fully’ obstruct or retard the

passage of the mail.” Id. at 485. The question was whether a law

enforcement officer who arrested a mail carrier for murder violated the

statute. Id. at 487. The Kirby Court said no. Id. It cited the

Enlightenment philosopher Puffendorf, who concluded that a law stating

“whoever drew blood in the streets should be punished with the utmost

severity” did not apply to a surgeon who was trying to perform

therapeutic bloodletting on a person who fell down in the street in a fit.

Id.; see David M. Sollors, The War on Error: The Scrivener’s Error Doctrine

and Textual Criticism: Confronting Errors in Statutes and Literary Texts,

49 Santa Clara L. Rev. 459, 463 n.19 (2009) (noting the Kirby Court was

referencing the work of the German jurist Samuel von Pufendorf). The

Court also cited an Edwardian example that a prisoner is not guilty of

escape when the prisoner breaks out of a prison on fire. Kirby, 74 U.S.

at 487. Kirby and the examples it cites stand for the proposition that a

broadly worded and apparently unqualified statute may be narrowly

construed to avoid absurd results notwithstanding the literal terms of

the statute. 20

The Supreme Court considered another departure from the literal

terms of a statute in Holy Trinity Church v. United States, 143 U.S. 457,

12 S. Ct. 511 (1892). In Holy Trinity, the Supreme Court considered

whether a statute that on its face prohibited importation of foreigners

into the United States “to perform labor or service of any kind” applied to

a church who hired an English rector. Id. at 458, 12 S. Ct. at 511. The

statutory language was unqualified. Id. Yet, the Supreme Court held the

statute did not apply to the hiring of the rector. Id. at 465, 12 S. Ct. at

514. The Court’s refusal to apply the statute to the transaction was

particularly striking as the statute contained a specific exception for

“actors, artists, lecturers, singers, and domestic servants” but did not

include clergy in the exception. Id. at 458–59, 12 S. Ct. at 512. The

Court recognized the linguistic argument had “great force,” yet stated

that “we cannot think congress intended to denounce” the hiring of a

religious rector. Id. at 459, 12 S. Ct. at 512. The Court declared the

purpose of the statute was to prevent the influx of “cheap, unskilled

labor.” Id. at 464, 12 S. Ct. at 513. Further, the Court declared that a

purpose against religion could not be imputed to the legislation. Id. at

465, 12 S. Ct. at 514.

The Supreme Court revisited the absurdity doctrine in Public

Citizen v. United States Department of Justice, 491 U.S. 440, 109 S. Ct.

2558 (1989). The question in that case was whether the Federal

Advisory Committee Act applied to the justice department’s solicitation of

the views of committees of the American Bar Association on various

judicial nominees. Id. at 443, 109 S. Ct. at 2561. The literal terms of

the statute would have drawn within its scope any group of two or more

persons who advised the President or the executive branch. Id. at 452,

109 S. Ct. at 2566. Justice Brennan, writing for the Court, declared this 21

result was not the intention of Congress as it would prevent political

actors from the freedom to conduct their affairs. Id. at 453, 109 S. Ct. at

2566. In escaping the literal words of the statute, Justice Brennan cited

Learned Hand, who once wrote, “[I]t is one of the surest indexes of a

mature and developed jurisprudence not to make a fortress out of the

dictionary.” Id. at 454, 109 S. Ct. at 2567 (quoting Cabell v. Markham,

148 F.2d 737, 739 (2d Cir.), aff’d, 326 U.S. 404, 66 S. Ct. 193 (1945)).

In a concurring opinion, Justice Kennedy presented a narrower

version of the absurdity doctrine. Id. at 470–71, 109 S. Ct. at 2575

(Kennedy, J., concurring). According to Justice Kennedy, the plain

words of a statute could be avoided only if the literal interpretation would

lead to “patently absurd consequences” under circumstances where “it is

quite impossible that Congress could have intended the result . . . and

where the alleged absurdity is so clear as to be obvious to most anyone.”

Id. (quoting United States v. Brown, 333 U.S. 18, 27, 68 S. Ct. 376, 380

(1948)); see Glen Staszewski, Avoiding Absurdity, 81 Ind. L.J. 1001, 1047

(2006) [hereinafter Staszewski].

Finally, although not labeled as the absurdity doctrine, the

Supreme Court applied concepts similar to it in King v. Burwell, 576 U.S.

___, 135 S. Ct. 2480 (2015). In the Affordable Care Act, the meaning of

the phrase “an Exchange established by the State under [42 U.S.C.

§ 18031]” was not particularly ambiguous, at least on its face. Id. at ___,

___, 135 S. Ct. at 2482, 2489. The term “by the State” does not seem to

include by “the Federal Government.” Id. at ___, 135 S. Ct. at 2490. As

noted by Chief Justice Roberts, “Petitioners’ arguments about the plain

meaning of [the section] are strong.” Id. at ___, 135 S. Ct. at 2495. Yet,

Chief Justice Roberts concluded the narrow and specific phrase should

be read more broadly to include any exchange under the Act, including 22

those established by the Federal Government. Id. at ___, 135 S. Ct. at

2496. The Chief Justice noted that the purpose of the Affordable Care

Act was to improve the health insurance markets, not to destroy them.

Id.

In King—unlike in Kirby, Holy Trinity, and Public Citizen where the

broad terms of a statute were narrowly construed—the meaning of the

statute was seemingly expanded beyond its literal meaning to save the

statute from self-destruction. See id. The compelling gist of King is that

statutes do not commit suicide. King thus amounted to a recognition

that although “the plain language interpretation of a statute enjoys a

robust presumption in its favor, it is also true that [a legislative body]

cannot, in every instance, be counted on to have said what it meant or to

have meant what it said.” FBI v. Abramson, 456 U.S. 615, 638, 102

S. Ct. 2054, 2068 (1982) (O’Connor, J., dissenting) (footnote omitted).

A factor pulsating through some federal absurdity cases is the

desire to avoid constitutional conflict. Holy Trinity at least implies that

the application of the statute to the hiring of the rector might raise First

Amendment issues, see 143 U.S. at 465, 12 S. Ct. at 514, and the Public

Citizen majority discusses the need of the executive branch to engage in

meaningful political communications free from public disclosure, see 491

U.S. at 453, 109 S. Ct. at 2566 (majority opinion). As noted by one

appellate court, when the statute’s plain meaning is absurd, and perhaps

unconstitutional, resort to extrinsic materials is appropriate. United

States v. Romero-Bustamente, 337 F.3d 1104, 1109 (9th Cir. 2003). This

tendency is supported by the notion that if the legislative branch wishes

to trench on constitutional rights or separation of powers, it must do so

only with the clearest of intentions. Such an approach tends to use less

confrontational statutory construction as a tool to strengthen 23

underenforced constitutional norms. See Staszewski, 81 Ind. L.J. at

1045.

As noted in commentary, although application of the absurdity

principle is contested in federal courts, even those who advocate textual

or literal approaches endorse the principle in at least some contexts. See

Veronica M. Dougherty, Absurdity and the Limits of Literalism: Defining

the Absurd Result Principle in Statutory Interpretation, 44 Am. U. L. Rev.

127, 128 & n.6 (1994) [hereinafter Dougherty]. For instance, in Green v.

Bock Laundry Machine Co., staunch textualist Justice Scalia rejected

literal interpretation of Federal Rule of Evidence 609(a)(1) because it

would produce absurd results. 490 U.S. 504, 527, 109 S. Ct. 1981,

1994 (1989) (Scalia, J., concurring); see Doughtery, 44 Am. U. L. Rev. at

153–58. Similarly, Judge Easterbrook has written that the language of a

statute may be bent only when the text produces absurd results. Neal v.

Honeywell Inc., 33 F.3d 860, 862 (7th Cir. 1994), abrogated by Graham

Cty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545

U.S. 409, 415, 125 S. Ct. 2444, 2449 (2005); see Doughtery, 44 Am. U.

L. Rev. at 128 n.6. As noted by Judge Posner, even interpretive literalists

realize that “the interpreter is free (we would say compelled) to depart in

the direction of sense” where strict interpretation would yield absurd

results. Cent. States, S.E. & S.W. Areas Pension Fund v. Lady Baltimore

Foods, Inc., 960 F.2d 1339, 1345 (7th Cir. 1992).

There is caselaw in many states that supports some form of the

absurdity doctrine. See, e.g., Brock v. Townsell, 309 S.W.3d 179, 186

(Ark. 2009); Prof’l Collection Consultants v. Lauron, 214 Cal. Rptr. 3d 419,

433 (Ct. App. 2017); People v. Johnson, 77 N.E.3d 615, 619–20, (Ill.

2017); Cmty. Consol. Sch. Dist. No. 210 v. Mini, 304 N.E.2d 75, 78 (Ill.

1973); Commonwealth v. Peterson, 65 N.E.3d 1166, 1169 (Mass. 2017); 24

State ex rel. Z.C., 165 P.3d 1206, 1209 (Utah 2007). Many of the cases,

no doubt, are really cases of ambiguity and the avoidance of

unreasonable results is a conventional interpretive strategy. But this is

not always true. As noted by the Hawaii Supreme Court, “departure

from literal construction is justified when such construction would

produce an absurd and unjust result,” clearly inconsistent with the

purposes of the statute. Pac. Ins. v. Or. Auto. Ins., 490 P.2d 899, 901

(Haw. 1971). There are many state court cases utilizing the absurdity

doctrine when the plain meaning of the language does not seem

ambiguous, some of which are quite remarkable. See, e.g., Maddox v.

State, 923 So. 2d 442, 445, 448 (Fla. 2006) (holding statute prohibiting

introduction of traffic citations “in any trial” limited to any trial dealing

directly with the traffic offense); Commonwealth v. Wallace, 730 N.E.2d

275, 278 (Mass. 2000) (interpreting the phrase “trial on the merits” to

include a default judgment); State v. Spencer, 173 S.E.2d 765, 774 (N.C.

1970) (finding “standing” in the street obstructing traffic includes

walking in the street); In re Falstaff Brewing Co. re: Narragansett Brewery

Fire, 637 A.2d 1047, 1050 (R.I. 1994) (holding statute authorizing release

of “name and address” of juvenile also authorizes release of underlying

record).

If anything, the case for the absurdity doctrine may well be

stronger in state courts than in federal courts. State legislatures

generally meet on a part-time basis. They do not generally employ the

mechanisms of extensive public hearings, markups, and staff review that

have characterized congressional action in the past. Further, large

volumes of state legislation are often passed in the waning hours of a

legislative session, with a flurry of last minute amendments, thus 25

increasing the possibility that legislation may be passed without a full

linguistic vetting.

4. Iowa caselaw regarding absurdity. Some of our cases invoke

the absurdity principle primarily as a tool of statutory interpretation.

See Mall Real Estate, L.L.C. v. City of Hamburg, 818 N.W.2d 190, 199

(Iowa 2012). The use of interpretive tools to determine which of a

number of textually plausible options the court should choose is not

really application of the absurdity doctrine, but represents a

conventional approach endorsed even by textualist opponents of the

absurdity doctrine. See John F. Manning, The Absurdity Doctrine, 116

Harv. L. Rev. 2387, 2419–20 & nn.122–23. A recent survey in the Drake

Law Review demonstrates that members of this court frequently look

beyond the text of the statute in the interpretation of statutes. Karen L.

Wallace, Does the Past Predict the Future?: An Empirical Analysis of

Recent Iowa Supreme Court Use of Legislative History as a Window into

Statutory Construction in Iowa, 63 Drake L. Rev. 239, 266–67 (2015)

(“The court has exhibited a willingness to consider a wide range of

sources that might help it interpret a statute consistent with legislative

intent.”).

As an apparent response to suggestions that we cannot use tools of

construction to depart from clear legislative text, we have sometimes

utilized a circular work-around in which we declare that if the statute

produces absurd results, it must be “ambiguous.” See Sherwin-Williams

Co. v. Iowa Dep’t of Revenue, 789 N.W.2d 417, 427 & n.8 (Iowa 2010).

But it is doubtful that a clear text is really transformed into an

ambiguous one solely based on the consequences of application. In

cases where we employ circular ambiguity, we are really applying the

true absurdity doctrine, namely, overriding the text of a statute to avoid 26

an intolerable result, just as the United States Supreme Court did in

Kirby, Holy Trinity, and Public Citizen, and just as many other state

courts have done over the decades.

A more straightforward description of the absurdity doctrine was

presented in Case v. Olsen, where we declared,

The court should give effect to the spirit of the law rather than the letter, especially so where adherence to the letter would result in absurdity, or injustice, or would lead to contradiction, or would defeat the plain purpose of the act, or where the provision was inserted through inadvertence.

234 Iowa 869, 873, 14 N.W.2d 717, 719 (1944). Kirby, Holy Trinity, and

Public Citizen utilize what one scholar has called “specific absurdity.”

See Linda D. Jellum, Why Specific Absurdity Undermines Textualism, 76

Brook. L. Rev. 917, 929 (2011). Specific absurdity is when the literal

terms of a broadly framed statue have been narrowed to avoid an absurd

result in specific instances. Id. at 928.

We have engaged in a specific absurdity analysis on a number of

occasions. For instance, in State v. Hoyman, we invoked the absurdity

doctrine to narrow the scope of a statute that criminalized fraudulent

practices in the context of public records. 863 N.W.2d 1, 14 (Iowa 2015). The statutory language seemed to criminalize any knowingly incorrect

entry, regardless of significance and whether the maker intended to

deceive. Id. at 8. We concluded that when read literally, the scope of the

statute “would be breathtakingly broad.” Id. at 13. We thus interpreted

the term “false” in the statute to mean that the entry was made with

intent to deceive. Id. at 15. We thus used the absurdity doctrine to

narrow the scope of a criminal statute.

Similarly, in Bearinger v. Iowa Department of Transportation, we

considered whether a driver could invoke a prescription-drug defense 27

before an administrative tribunal seeking to revoke her driver’s license.

844 N.W.2d 104, 106 (2014). We noted that in criminal matters, the

legislature expressly provided for a prescription-drug defense. Id. at

107–08. Yet, a similar defense was not provided for in the administrative

process related to license revocation. Id. at 109. Under the driver’s

license revocation statute, revocation could occur when “any amount of a

controlled substance is present in the person.” Id. at 107 (quoting Iowa

Code § 321J.2(1)(c) (emphasis added)). In order to avoid absurd results,

we narrowed the scope of the term “any amount” to exclude amounts in

the body as a result of duly prescribed and ingested prescription drugs.

Id. at 110.

Finally, in Iowa Insurance Institute v. Core Group of Iowa

Association for Justice, we construed the term “all information” to exclude

work product, attorney work product, attorney–client, and other

privileged materials. 867 N.W.2d 58, 79 (2015). The literal terms of the

statute did not have any qualification. Id. at 69. We declared “all

information” to be ambiguous, but the language was plain enough. Id. at

73. We narrowed the statute to avoid untoward results. Id. at 76.

In this case, however, we are not asked to narrow the scope of a

statute, but to expand the scope beyond its plain meaning. This is the

scenario presented in King, 576 U.S. ___, 135 S. Ct. 2480. We have, on

occasion, expanded the meaning of a statute through interpretation in

order to avoid an absurd result. See Hutchison v. Shull, 878 N.W.2d 221,

233 (Iowa 2016) (favoring expansive interpretation of the term “meeting”

to promote underlying goals of statute); Mall Real Estate, 818 N.W.2d at

199 (applying expansive interpretation of the term “material” to achieve

statutory consistency). Nonetheless, it seems fair to say avoiding the 28

literal terms of a statute in order to extend the power of the state occurs

with less frequency than a narrowing construction.

We also seem to have recognized that statutes should not contain

the seeds of their own destruction. For instance, we have stated that

“when a literal interpretation of a statute results in absurd consequences

that undermine the clear purpose of the statute, an ambiguity arises.”

Sherwin-Williams, 789 N.W.2d at 427 n.8; see also State v. Hopkins, 465

N.W.2d 894, 896 (Iowa 1991) (noting we strive to arrive at a construction

that will best effectuate its purpose rather than defeat it); Crow v.

Shaeffer, 199 N.W.2d 45, 47 (Iowa 1972). In a similar vein, our older

cases have recognized what some have called the common law equity or

“spirit” of the statute. Case, 234 Iowa at 873, 14 N.W.2d at 719. Our

invocation of the spirit of the statute is usually in conjunction with a

finding that the statute is ambiguous. See id. at 872, 14 N.W.2d at 719.

We have also recognized narrow construction to avoid

constitutional problems. State v. McGuire, 200 N.W.2d 832, 833 (Iowa

1972); Carroll v. City of Cedar Falls, 221 Iowa 277, 283–84, 261 N.W.

652, 655–56 (1935). A possible unconstitutional result is a factor that

might tip statutory interpretation away from a literal reading of the

statute.

In the end, we find the teaching of Sherwin-Williams is consistent

with the vast majority of state and federal law and has continued vitality

today. In Sherwin-Williams, we noted that “the absurd results doctrine

should be used sparingly because it entails the risk that the judiciary

will displace legislative policy on the basis of speculation that the

legislature could not have meant what it unmistakably said.” 789

N.W.2d at 427 (quoting 2A Statutory Construction § 45:12, at 105–07 29

(7th ed. 2007)). Yet, in Sherwin-Williams, we also cited with approval a

Hawaii case which states,

[E]ven in the absence of statutory ambiguity, departure from literal construction is justified when such construction would produce an absurd and unjust result and the literal construction in the particular action is clearly inconsistent with the purposes and policies of the act.

Id. (alteration in original) (quoting Pac. Ins., 490 P.2d at 901).

The bottom line is that the absurdity doctrine is well established in

Iowa and elsewhere, though not always clearly articulated. It can be

utilized, in rare cases, to overcome the plain meaning of the words of a

statute. The doctrine, however, must be used sparingly and only in

circumstances when the court is confident the legislature did not intend

the result required by literal application of the statutory terms.

5. Discussion of applying the absurdity doctrine in this case. In

light of these cases, we now turn to considering the meaning of Iowa

Code section 484C.12. It expressly authorizes the DNR to engage in

quarantine of “diseased preserve whitetail.” Iowa Code § 484C.12. There

does not seem to be a lot of ambiguity here. The quarantine applies only

if three requirements are present: diseased, preserve, and whitetail. Id. It would be a blue-is-red-type of interpretation to claim that the statute

applies to nondiseased whitetail. And, the quarantine applies to

whitetail, not to land.

We could, perhaps, escape the plain meaning of the words through

an application of the absurdity principle. That is the fighting issue in

this case. The DNR seeks through the absurdity doctrine to broaden

inclusion of coverage. It is then akin to King, 576 U.S. at ___, 135 S. Ct.

at 2496. The DNR seeks to release itself from the verbal chains of the 30

statute to achieve what it views as a better, more thorough, and more

comprehensive result.

But we do not see absurdity here. Indeed, it is not uncommon that

the legislative process results in half measures. Further, the plain

meaning of the statute, namely that quarantine applies only to “diseased

preserve whitetail,” is not absurd. The DNR itself admits that a

quarantine of the diseased animals is one step in a program of control of

CWD. The record in this case established that CWD is of great concern

in the game-hunting community, but there seems to be no clear

consensus about the efficacy of various eradication efforts. After

reviewing the record in this case, one does not emerge thinking, “Oh my

gosh, that can’t be!” when considering the plain legislative language.

The linguistic focus in the Iowa statute on the animals rather than

the land is found in other CWD regulatory regimes. For example, Illinois

law authorizes a quarantine of a CWD-infected herd until

either the herd has been depopulated or there has been no evidence of CWD in the herd for five years from the date of the last case, and all animals that have died, been euthanized or been slaughtered in the herd during that period were examined for CWD.

Ill. Admin. Code tit. 8, § 85.120(e)(2) (Westlaw current through Ill. Reg.

vol. 41, issue 21). There is no provision for quarantine after the herd has

been depopulated.

We further note that at the time Iowa Code chapter 484C was

enacted, there were other legislative models that distinguished between

quarantine of animals and quarantine of land. For example, the North

Carolina statute expressly authorizes the quarantine of exposed animals

and affected premises within the state. N.C. Gen. Stat. § 106-401 (West,

Westlaw current through S.L. 2017-17 of the 2017 Reg. Sess.). Section 31

(a) of the statute authorizes the state veterinarian to “quarantine any

animal affected with or exposed to a contagious disease.” Id. § 106-

401(a). Under this provision, the quarantine remains in effect “until any

sick or diseased animal has been properly disposed of and the premises

have been properly cleaned and disinfected.” Id. Section (b) authorizes

the state veterinarian, in consultation with the commissioner of

agriculture and with approval of the governor, to quarantine “areas

within the State.” Id. § 106-401(b); see Andrew H. Nelson, High Stakes:

Defending North Carolina’s Response to Contagious Animal Diseases, 83

N.C. L. Rev. 238, 263–71 (2004). Further, a survey of administrative

regulations related to CWD for cervids shows that some do not expressly

authorize quarantines, some authorize quarantines but only of herds,

and some authorize quarantines of both herds and premises. See, e.g.,

Ariz. Admin. Code § R3-2-405 (Westlaw current through Ariz. Admin.

Reg. vol. 23, issue (7)) (providing for depopulation of animals exposed to

CWD but no mention of a quarantine); Kan. Admin. Regs. 9-3-17(a)

(Westlaw current through Vol. 36, No. 17, Apr. 27, 2017) (authorizing a

“herd quarantine”); 2-4 Vt. Code R. § 316:XI (Westlaw current through

May 2017) (providing for a quarantine of herd and premises). We decline

to write a passage related to quarantine of the premises into the Iowa

law, which authorizes only the quarantine of animals. See Iowa Code

§ 484C.12.

The fact that more might have been done does not make the grant

of limited authority the legislature gave to the DNR absurd. Our task is

to interpret the statute, not improve it. See Wells Fargo Bank v. Super.

Ct., 811 P.2d 1025, 1034 (Cal. 1991) (en banc); In re Matthew D., 880

N.W.2d 107, 114 (Wis. 2016). Indeed, while more might need to be done

in a specific case, the legislature may well have relied on Iowa Code 32

section 484C.12(2), which requires the landowner, or the landowner’s

veterinarian, and a DNR epidemiologist to develop a plan for eradicating

the disease among the preserve whitetail population. This provision

suggests a reliance on mutual agreement on a case-by-case basis for

further remedies, rather than the expansive government quarantine

authority suggested by the DNR.

We also observe some of the features that may tend to support

application of the absurdity doctrine are not present in this case. We

note that the DNR asks us to expand, rather than retract, government

power. While we have on occasion done so in the past under the

absurdity doctrine, we think it is a more difficult argument to make than

when a statute is narrowed. If the legislature wants to assert new

regulatory powers over private landowners, it should do so expressly.

Further, to the extent there are constitutional issues at stake here, they

cut against a broad interpretation of the statute in light of the property

interests of deer farmers.

F. Conclusion. We therefore conclude that Iowa Code section

484C.12 should be read according to its ordinary meaning. The

consequence of this interpretation is that the agency lacked the statutory

authority to promulgate the administrative rule expanding the scope of

quarantines to include fencing of lands for a five-year period when all

diseased preserve wildlife have been eradicated. As a result, the agency

was without authority to issue the emergency order in this case. 4 If the

4Like the district court, we decline to consider whether the DNR or NRC is entitled to deference in the interpretation of the statute under Renda, 784 N.W.2d at 11–14. Even if deference were afforded, we would nonetheless rule the DNR was without authority to issue the emergency order in this case. 33

legislature wishes to expand quarantine powers as suggested by the DNR

rule, it is, of course, free to do so.

IV. Taking Under the Due Process Clauses of the United States or Iowa Constitutions.

A. Introduction. Under both the United States and Iowa

Constitutions, the government is required to pay just compensation

when it “takes” private property for public use. U.S. Const. amend. V;

Iowa Const. art. I, § 18. The overarching purpose of the Takings Clause

of the United States Constitution is “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.” Yancey v. United

States, 915 F.2d 1534, 1539 (Fed. Cir. 1990) (quoting Armstrong v.

United States, 364 U.S. 40, 49, 80 S. Ct. 1563, 1569 (1960)).

The United States Supreme Court has recognized two different

types of takings. The first type involves direct government seizure of

property that amounts to “a practical ouster of [the owner’s] possession.”

Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 537, 125 S. Ct. 2074, 2081

(2005) (alteration in original) (quoting Lucas v. S. Carolina Coastal

Council, 505 U.S. 1003, 1014, 112 S. Ct. 2886, 2892 (1992)). The Supreme Court, however, has recognized a second kind of taking which

occurs as a result of government regulation which becomes sufficiently

onerous that “its effect is tantamount to a direct appropriation or

ouster.” Id.

In their cross-appeal in this case, the Brakkes assert the district

court erred in not finding the emergency order amounted to a regulatory

taking under the United States and Iowa Constitutions that entitled them

to just compensation. 34

B. Constitutional Provisions. The Takings Clause of the Fifth

Amendment of the United States Constitution provides that “private

property shall not be taken for public use, without just compensation.”

U.S. Const. amend. V. Article I, section 18 of the Iowa Constitution

provides that “[p]rivate property shall not be taken for public use without

just compensation first being made, or secured to be made to the owner

thereof, as soon as the damages shall be assessed by a jury.” Iowa

Const. art. I, § 18.

The Brakkes do not assert that the standard on takings under the

Iowa Constitution is different than that under the federal takings

constitutional counterpart. We therefore apply the established federal

standards regarding takings, but reserve the right to apply these

standards in a fashion different than the federal courts. State v. Kooima,

833 N.W.2d 202, 206 (Iowa 2013); Racing Ass’n of Cent. Iowa v.

Fitzgerald, 675 N.W.2d 1, 5 (Iowa 2004).

C. Positions of the Parties. Citing federal caselaw, the Brakkes

point out that regulatory takings occur when the government (1) requires

the owner to suffer a permanent physical invasion, no matter how minor;

(2) completely deprives the owner of all economically beneficial use of her

property; or (3) without sufficient justification requires an owner to

dedicate a portion of property in exchange for a building permit. See

Lingle, 544 U.S. at 538, 125 S. Ct. at 2081 (describing the first two types

of takings as “per se regulatory takings”); Dolan v. City of Tigard, 512

U.S. 374, 388, 114 S. Ct. 2309, 2318 (1994) (involving permit conditions

imposed on property owner). A taking may also occur when the

balancing factors of Penn Central Transportation Co. v. City of New York

indicate a taking has occurred. 438 U.S. 104, 124, 98 S. Ct. 2646, 2659

(1978). The factors to be balanced under the familiar Penn Central test 35

are (1) the economic impact of the regulation on the claimant, (2) the

extent to which the regulation interfered with distinct investment-backed

expectations, and (3) the character of the government action. Id.

The Brakkes argue the emergency order was a per se regulatory

taking because the order required the Brakkes to maintain both the

fence and the gates at Pine Ridge. In support of their argument, the

Brakkes cite Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.

419, 102 S. Ct. 3164 (1982). In Loretto, a landlord was forced to allow a

cable television company to install cable and connection boxes on her

property. Id. at 421–22, 102 S. Ct. at 3168–69. The United States

Supreme Court found a permanent physical occupation of real property

that amounted to compensable taking. Id. at 438, 102 S. Ct. at 3177. In

addition to the requirement to maintain the fence and gate, the Brakkes

note the emergency order authorized the DNR to physically invade their

property to kill wild deer. Further, the Brakkes observe that any future

operational plan would necessarily prohibit the Brakkes from excluding

DNR personnel and property. These physical invasions, according to the

Brakkes, are takings that entitle them to just compensation.

The Brakkes recognize the DNR’s physical invasions are not

permanent. Nonetheless, the Brakkes point to two World War II era

cases where the government’s condemnation of company premises

amounted to compensable takings despite the temporary nature.

Kimball Laundry Co. v. United States, 338 U.S. 1, 7, 69 S. Ct. 1434, 1438

(1949); United States v. Petty Motor Co., 327 U.S. 372, 375–76, 66 S. Ct.

596, 598–99 (1946). The Brakkes cite a recent case, Arkansas Game &

Fish Commission v. United States, which suggests that government-

induced flooding may be compensable. 568 U.S. 23, 34, 133 S. Ct. 511,

519–20 (2012). 36

The Brakkes also argue that the emergency order is a regulatory

taking because it is the functional equivalent of ousting the Brakkes from

their property for a five-year period, or at least as long as the emergency

order is in place. According to the Brakkes, the emergency order hollows

out its right to “possess, use and dispose” of their property. Loretto, 458

U.S. 419, 435, 102 S. Ct. at 3176. The Brakkes repeat that the

emergency order forces them to maintain the fence, precludes them from

conducting hunting on the property, and requires them to submit an

operational plan that will effectively permit the DNR to control all

activities at all times during the five-year quarantine. According to the

Brakkes, they cannot sell their property to escape the tentacles of the

DNR because the DNR restrictions will scare away potential buyers.

Next, the Brakkes argue the emergency order qualifies as a taking

because it strips the property of all economically beneficial use. The

Brakkes point to Lucas, in which the Supreme Court stated that a

property owner called upon “to sacrifice all economically beneficial uses

in the name of the common good, that is, to leave his property

economically idle, . . . has suffered a taking.” 505 U.S. at 1019, 112

S. Ct. at 2895. According to the Brakkes, the record in this case

demonstrates there is no other use of the land other than as a hunting

preserve, which the DNR order prohibits.

Finally, and because it satisfies the Penn Central test, the Brakkes

assert the economic impact of the emergency order has been extensive,

the regulation has interfered with their investment-based expectations,

and the order was a product of political considerations and not the law.

See 438 U.S. at 124, 98 S. Ct. at 2659. According to the Brakkes, the

district court erred by declining to find a taking under Penn Central. 37

The DNR focuses its response on the question of whether a

compensable taking occurred. With respect to the per se regulatory

takings, the DNR asserts the record did not establish a permanent

physical invasion and did not deprive the Brakkes of all economic

benefit.

On the question of permanent physical invasion, the DNR

emphasizes a parade of federal caselaw that stress physical invasions

must be permanent, and not temporary, to be per se compensable under

the Takings Clause. In particular, the DNR notes that in Loretto, the

United States Supreme Court expressly distinguished between

permanent and temporary invasions and held that a per se taking was

present only when an invasion was permanent. 458 U.S. at 432–35, 102

S. Ct. at 3174–75. The DNR recognizes that the World War II era cases

of Kimball and Petty Motor allow for compensation for temporary takings,

but the DNR suggests that later caselaw has clarified that in order to be

a per se taking under current doctrine, the taking must be permanent.

Loretto, 458 U.S. at 435, 102 S. Ct. at 3175.

The DNR next addresses the question of whether the emergency

order amounted to a per se taking because it deprived the Brakkes of all

productive use of the hunting preserve. Citing Tahoe-Sierra Preservation

Council, Inc. v. Tahoe Regional Planning Agency, the DNR asserts that in

order to be a per se taking under this theory, the government action

must deprive the property owner of “all economically beneficial use.” 535

U.S. 302, 319, 122 S. Ct. 1465, 1477 (2002). In Tahoe-Sierra, the

Supreme Court held that a moratorium on development of property for

thirty-two months did not create a per se taking. Id. at 306, 321, 122

S. Ct. at 1470, 1478. DNR argues that Tahoe-Sierra recognizes that

anything less than a complete elimination of value or total loss must be 38

analyzed under Penn Central and cannot be treated as per se takings.

See id. at 321, 122 S. Ct. at 1478. The DNR notes that according to the

United States Supreme Court, such a finding that “all economically

beneficial use[]” has been eliminated as a result of government action is

“relatively rare.” Lucas, 505 U.S. at 1018, 112 S. Ct. at 2894.

The DNR argues that the Brakkes fail to show a deprivation of “all

economically beneficial use” for two reasons. First, the DNR notes that a

temporary taking is insufficient. In addition, the DNR points out that

even on a temporary basis, the Brakkes have not been deprived of all

economic interests, as the property can still be used for noncervid

species, fishing, row crops, hay ground, timber harvest, bed and

breakfast, or cattle pasture, among other uses. The DNR also points to

an appraisal, which indicated the value of the Brakkes’ property due to

the DNR’s regulatory effort fell from $1,056,000 to $891,000.

Having argued that the Brakkes failed to show a per se taking, the

DNR turns to the question of whether the emergency order amounted to

a regulatory taking under Penn Central. The DNR asserts that under the

first Penn Central factor, the Brakkes failed to show the economic impact

of the emergency order weighed in favor of finding a taking. The DNR

stresses the relatively small diminution in the value of the property and

the fact the diminution in value will abate as the end of the quarantine

period approaches. According to the DNR, in order for the economic

impact to weigh in favor of a taking, the diminution in value has to be

much greater, at least by fifty percent or more. See CCA Assocs. v.

United States, 667 F.3d 1239, 1246 (Fed. Cir. 2011) (stating it was

“aware of no case in which a court has found a taking where diminution

in value was less than 50 percent”). To the extent the Brakkes claimed

lost profits was the proper measure of economic impact, the DNR cited 39

cases standing for the proposition that consequential damages are not

recoverable in takings cases and thus should not be the standard for

determining if a taking occurred. See, e.g., Kurth v. Iowa Dep’t of

Transp., 628 N.W.2d 1, 6–7 (Iowa 2001).

Under the second Penn Central factor, the DNR suggests that

investment-backed expectations do not weigh in favor of a taking. The

DNR argues the Brakkes knew that hunting reserves were subject to

regulation. The DNR notes that for purposes of considering investment-

backed expectation, the test is not whether a specific government

regulation existed at the time of investment, but “[t]he critical question is

whether extension of existing law could be foreseen as reasonably

possible.” Cienega Gardens v. United States, 503 F.3d 1266, 1288–89

(Fed. Cir. 2007) (quoting Commw. Edison Co. v. United States, 271 F.3d

1327, 1357 (Fed. Cir. 2001) (en banc)).

On the last Penn Central factor, the DNR argues that the character

of the government action does not weigh in favor of a taking. The DNR

points out that the Brakkes maintained possession of their property and

maintained the right to possess, lease, or sell the property. The DNR

points to the beneficent purpose of the regulation, namely, to prevent the

spread of CWD. Finally, the DNR argues the duration of the quarantine

was relatively brief and the diminution in the property value was modest.

D. Discussion.

1. Overview of regulatory takings theories. The classic government

taking requiring compensation is a direct appropriation of physical

property, “or the functional equivalent of ‘a practical ouster of [the

owner’s] possession.’ ” Lucas, 505 U.S. at 1014, 112 S. Ct. at 2892

(alteration in original) (quoting Transp. Co. v. Chicago, 99 U.S. 635, 642

(1878)). A regulatory taking, on the other hand, occurs when a 40

regulation becomes so burdensome that its effect is “tantamount to a

direct appropriation or ouster.” Lingle, 544 U.S. at 537, 125 S. Ct. at

2081; Penn. Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S. Ct. 158, 160

(1922) (recognizing regulatory takings for the first time); see also Easter

Lake Estates, Inc. v. Polk County, 444 N.W.2d 72, 75 (Iowa 1989)

(“[G]overnment action that substantially deprives a person of the use of

property, in whole or in part, may be a compensable taking.”). This case

focuses solely on regulatory takings.

As can be seen by the positions of the parties, there are three types

of regulatory takings at play: (1) a per se taking arising from a permanent

physical invasion of property, (2) a per se taking arising from regulation

that denies the owner all economically beneficial ownership, and (3) a

regulatory taking based on the balancing of the three Penn Central

factors. Bormann v. Bd. of Supervisors, 584 N.W.2d 309, 316 (Iowa

1998); see Craig A. Peterson, Land Use Regulatory ‘Takings’ Revisited:

The New Supreme Court Approaches, 39 Hastings L.J. 335, 336–39

(1988) (sketching the development of the Court’s regulatory takings

caselaw since Penn Central).

2. Merits of a per se takings claim involving “physical invasions of

property” or deprivation of “all economically beneficial or productive use of

land.” We begin with a review of the takings law involving physical

invasions by government regulation. A key case is Loretto, 458 U.S. 419,

102 S. Ct. 3164. In Loretto, the owner of a New York City apartment

building challenged a New York law requiring that landlords not interfere

with the installation of cable television facilities on their premises, not

demand payments from tenants for permitting cable television, and not

demand payment from a cable television company in excess of an

amount set by regulation. Id. at 423, 102 S. Ct. at 3169. The Loretto 41

Court noted that lower courts had found the law served a legitimate

public purpose, but held that when there is a “permanent physical

occupation authorized by government,” the action is a taking whether or

not it serves the public interest. Id. at 425–26, 102 S. Ct. at 3170–71.

The Loretto Court turned to the question of whether there was a

permanent physical invasion under the facts presented. Id. at 438, 102

S. Ct. at 3177. The Court noted that landlords suffered a permanent

physical occupation in the form of the plates, boxes, wires, and bolts that

affix the cable television installment to the roof of the building. Id. Such

a permanent installation on the landlord’s property was, therefore, a

taking. Id. at 438, 102 S. Ct. at 3178.

The concept that a regulation that deprived a property owner “of all

economically beneficial or productive use” amounted to a per se taking

was explored in Lucas, 505 U.S. at 1015, 112 S. Ct. at 2893. In Lucas, a

land developer purchased coastal property intending to develop single-

family residences. Id. at 1008, 112 S. Ct. at 2889. A coastal council,

however, prohibited construction of any habitable improvements on the

property. Id. The land developer sought compensation, arguing the

regulation, though enacted pursuant to a valid law, was a taking because

it denied him all economically beneficial or productive use of the land.

Id. at 1009, 112 S. Ct. at 2890.

The Lucas Court recognized that a compensable taking occurs

when a regulation “denies an owner of all economically viable use of his

land.” Id. at 1016, 112 S. Ct. at 2894 (quoting Agins v. City of Tiburon,

447 U.S. 255, 260, 100 S. Ct. 2138, 2141 (1980), abrogated on other

grounds by Lingle, 544 U.S. at 545, 125 S. Ct. at 2087). This position is

justified, the Court explained, because from a landowner’s point of view,

being totally deprived of all of the beneficial use of the land is the 42

equivalent of a physical appropriation. Id. at 1017, 112 S. Ct. at 2894.

While the government must be allowed to affect property values by

regulation without compensation, the Court recognized that takings

could occur under “the relatively rare situations where the government

had deprived a landowner of all economically beneficial uses.” Id. at

1018, 112 S. Ct. at 2894.

The Supreme Court considered the question of whether a

temporary taking that for a period of time deprived the owner of all

economic benefit could be a per se taking. In First English Evangelical

Lutheran Church of Glendale v. County of Los Angeles, the Supreme Court

held for the first time that a landowner could recover damages for the

temporary period during which a land-use regulation was effective. 482

U.S. 304, 322, 107 S. Ct. 2378, 2389 (1987).

In First English, the appellant church’s campground was flooded

and its buildings destroyed. 482 U.S. at 307, 107 S. Ct. at 2381. In

response to the flood, the county adopted an interim ordinance that

prohibited the construction or reconstruction of any building in an

interim flood protection area, which included the campground. Id. at

307, 107 S. Ct. at 2381–82. There is no indication in the opinion of the

stated duration of the “interim ordinance,” if the ordinance in fact

included a duration. Id. at 307, 107 S. Ct. at 2382.

The church brought a claim in California state court, arguing that

the ordinance denied the church of all use of the campground and asking

for just compensation. Id. at 308, 107 S. Ct. at 2382. The California

courts rejected the claim under California precedent, which established

the only remedy for an ordinance that deprived a landowner of the total

use of their lands was declaratory relief or mandamus. Id. at 309, 107

S. Ct. at 2382. This California precedent held that compensation was 43

only available if a landowner had sought declaratory relief, the ordinance

was held excessive, and the government persisted in enforcing the

regulation. Id. The church appealed to the United States Supreme

Court, arguing that temporary regulatory takings require just

compensation under the Fifth Amendment. Id. at 310, 107 S. Ct. at

2383.

After a lengthy analysis of prior precedent, the Supreme Court

found that where takings deny landowners all use of property, there is no

real difference between temporary takings and permanent takings. Id. at

318, 107 S. Ct. at 2388 (“ ‘[T]emporary’ takings which, as here, deny a

landowner all use of his property, are not different in kind from

permanent takings, for which the Constitution clearly requires

compensation.”); see also San Diego Gas & Elec. Co. v. City of San Diego,

450 U.S. 621, 657, 101 S. Ct. 1287, 1307 (1981) (Brennan, J.,

dissenting) (“Nothing in the Just Compensation Clause suggests that

‘takings’ must be permanent and irrevocable.”).

The First English Court emphasized that its decision was limited to

ordinances that deny the property owner all use of their property and not

“normal delays in obtaining building permits, changes in zoning

ordinances, variances, and the like which are not before us.” 482 U.S. at

321, 107 S. Ct. at 2389. Additionally, the Court explained, once a

determination has been made that a taking has occurred, the

government retains the ability to choose to amend the regulation,

withdraw the regulation, or exercise eminent domain. Id. But when the

government has already taken all use of a property, it has a duty to

provide compensation for the period during which the taking was

effective. Id. 44

While First English seems to stand for the proposition that

temporary government actions that eliminate all economically viable use

of the property are subject to a Fifth Amendment per se taking analysis,

the Court significantly narrowed the holding of First English in Tahoe-

Sierra, 535 U.S. at 328–29, 122 S. Ct. at 1482. In Tahoe-Sierra, the

Supreme Court considered a landowners group’s challenge to a two-year,

eight-month moratorium on new development around Lake Tahoe. Id. at

306, 122 S. Ct. at 1470. These moratoria were enacted so that land-use

planners could develop a plan to preserve the lake while allowing new

development. Id. at 310–11, 122 S. Ct. at 1472–73. The landowners

claimed the moratoria were both per se takings and takings under the

multifactored Penn Central approach. Id. at 314–15, 122 S. Ct. at 1474–

75.

The district court had concluded the Penn Central factors were not

met, but that under First English, 482 U.S. 304, 107 S. Ct. 2378, and

Lucas, 505 U.S. 1003, 112 S. Ct. 2886, the landowners were entitled to

compensation for the thirty-two months of the moratoria because they

were temporarily deprived of all economically viable use of their land.

Tahoe-Sierra, 535 U.S. at 316–17, 122 S. Ct. at 1475–76. When the

parties appealed and cross-appealed, the landowners did not appeal the

Penn Central issue. Id. at 317, 122 S. Ct. at 1476.

The Tahoe-Sierra Court rejected a categorical, per se rule that

temporary deprivations of all viable economic uses of the land necessarily

gives rise to a takings claim. Id. at 321, 122 S. Ct. at 1478. Instead, the

Court stated temporary deprivations of use of property must be analyzed

under the fact-specific Penn Central framework. Id. The Tahoe-Sierra

Court distinguished First English by emphasizing that the issue in First

English was not whether a taking had occurred, but only whether 45

compensation was required because the taking was temporary. Id. at

328, 122 S. Ct. at 1482; see First English, 482 U.S. at 321, 107 S. Ct. at

2389 (“We merely hold that where the government’s activities have

already worked a taking . . . .”). As a result, the Tahoe-Sierra Court

stated First English did not stand for the proposition that a taking had

occurred. 535 U.S. at 328, 122 S. Ct. at 1482. The Court also

emphasized that Lucas did not support the petitioners because the

statute in Lucas eliminating all value of the land was “unconditional and

permanent,” not temporary. Id. at 329, 122 S. Ct. at 1483 (quoting

Lucas, 505 U.S. at 1012, 112 S. Ct. at 2891).

Based on the above authorities, we conclude the Brakkes have

failed to establish a per se regulatory taking based on either a physical-

invasion theory or an all economic-benefit theory. While the World War

II vintage cases, buttressed by First English, might imply or suggest that

a per se taking can arise from temporary takings, the more recent case of

Tahoe-Sierra holds that temporary takings are not per se violations but

are instead analyzed under the multifactor Penn Central test. Id. at 321,

122 S. Ct. at 1478. We therefore reject the Brakkes’ per se takings claim

and proceed to consider whether the Brakkes have a takings claim under

the Penn Central test.

3. Merits of a takings claim under a multifactored Penn Central

balancing test. Penn Central involved the application of New York City’s

landmark preservation law to the Grand Central Terminal. 438 U.S. at

115, 98 S. Ct. at 2654. Under the law, the owner of a piece of property

designated as a landmark was required to maintain the building in a

good state of repair and was prevented from altering the exterior of the

building absent the approval of the Landmarks Preservation

Commission. Id. at 111–12, 98 S. Ct. at 2653. 46

The Penn Central Court, in summarizing its Fifth Amendment

jurisprudence, emphasized there is no “set formula” for determining

when concerns of “justice and fairness” require a private property owner

to be compensated for economic injuries caused by a public action. Id.

at 124, 98 S. Ct. at 2659 (quoting Goldblatt v. Hempstead, 369 U.S. 590,

594, 82 S. Ct. 987, 990 (1962)). The Court emphasized that whether the

government is required to pay just compensation depends “upon the

particular circumstances [in that] case.” Id. (alteration in original)

(quoting United States v. Cent. Eureka Mining Co., 357 U.S. 155, 168, 78

S. Ct. 1097, 1104 (1958)). According to the Court, the inquiry is ad hoc

and fact specific. Id.

Nevertheless, the Penn Central Court identified several factors of

“particular significance.” Id.

The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are, of course, relevant considerations. So, too, is the character of the government action. A “taking” may more readily be found when the interference with property can be characterized as a physical invasion by government, than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.

Id. (citations omitted); accord Fitzgarrald v. City of Iowa City, 492 N.W.2d

659, 663 (Iowa 1992); Iowa-Ill. Gas & Elec. Co. v. Iowa State Commerce

Comm’n, 412 N.W.2d 600, 607 (Iowa 1987). Even when a regulation

furthers important public policies, it may nevertheless “so frustrate

distinct investment-backed expectations as to amount to a taking.” Penn

Cent., 438 U.S. at 127, 98 S. Ct. at 2661; see Penn. Coal, 260 U.S. at

415, 43 S. Ct. at 160. A taking may be found if the regulation destroys

the “primary expectation” of the owners of and investors in the parcel.

Penn Cent., 438 U.S. at 136, 98 S. Ct. at 2665; see also Kasparek v. 47

Johnson Cty. Bd. of Health, 288 N.W.2d 511, 518 (Iowa 1980)

(emphasizing this element of Penn Central).

In Kaiser Aetna v. United States, the Court summarized the Penn

Central factors as “the economic impact of the regulation, its interference

with reasonable investment backed expectations, and the character of

the government action.” 444 U.S. 164, 175, 100 S. Ct. 383, 390 (1979);

accord Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 224–25,

106 S. Ct. 1018, 1026 (1986). Kaiser Aetna and its progeny have given

rise to descriptions of Penn Central as involving a three-part balancing

test. See Adam R. Pomeroy, Penn Central After 35 Years: A Three Part

Balancing Test or a One Strike Rule?, 22 Fed. Cir. B.J. 677, 677 (2013).

We, however, have generally considered the Penn Central test to be

a two-part test, merging the first two factors described in Kaiser Aetna—

(1) “ ‘[t]he economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations[,]’ ” and (2) “the ‘character of the government action’—for instance whether it amounts to a physical invasion or instead merely affects property interests through ‘some public program adjusting the benefits and burdens of economic life to promote the common good.’ ”

Harms, 702 N.W.2d at 98 (alteration in original) (quoting Lingle, 544 U.S. at 539, 125 S. Ct. at 2082).

We now turn to apply the Penn Central test to the case before us.

There is no doubt there has been an economic impact from the

emergency order in this case. But the value of the land, as testified to by

the DNR’s expert, has declined only 16.4%, generally not enough to

weigh heavily in support of finding a taking. See CCA Assocs., 667 F.3d

at 1246. Although the land cannot be used as a hunting preserve, it had

value and other uses prior to becoming a hunting preserve and has value

and other uses during the quarantine period. 48

While there is little doubt the Brakkes may have lost profits, the

yardstick in a takings case is ordinarily lost value of the property taken.

See Rose Acre Farms, Inc. v. United States, 559 F.3d 1260, 1268 (Fed.

Cir. 2009). We have held that consequential damages are not

recoverable in takings cases. Kurth, 628 N.W.2d at 6–7. We have further

stated that “the profits of a business are too uncertain, and depend upon

too many contingencies to safely be accepted as any evidence of the

usable value of the property upon which the business is carried on.”

Wilson v. Iowa State Highway Comm’n, 249 Iowa 994, 1006, 90 N.W.2d

161, 169 (Iowa 1958). We conclude that claims of lost profits may be

considered only as a factor in determining the lost value of the land

which has allegedly been taken. See Rose Acre, 559 F.3d at 1272.

Based on the evidence, we find the economic harm simply does not

weigh in favor of a taking under Penn Central. The Penn Central

approach is designed to give government authorities fairly wide berth in

the regulation in the public interest. See 438 U.S. at 144–45, 98 S. Ct.

at 2669–70. The applicable caselaw does not support the Brakkes’

assertion that the economic impact of the regulation on the Brakkes cuts

in favor of the finding of a taking.

We now turn to the question of whether the DNR’s action interfered

with distinct investment-backed expectations. The investment-backed

expectations test is an objective one. Ciegna Gardens, 331 F.3d at 1346.

The Brakkes were in the business of operating a hunting preserve. A

reasonable investor would be aware that hunting preserves are subject to

state regulation, including regulation related to CWD. See Iowa Code ch.

484C; see also Hawkeye Commodity Promotions, Inc. v. Vilsack, 486 F.3d

430, 442 (8th Cir. 2007) (holding that investment-backed expectations

did not weigh in favor of a taking in heavily regulated gambling industry). 49

Further, a reasonable investor would understand the presence of

CWD in a hunting preserve could give rise to aggressive government

action to curtail the spread of the disease. Notably, in Kafka v. Montana

Department of Fish, Wildlife, and Parks, the Supreme Court of Montana

noted that in considering investment-backed expectations in the context

of a takings claim, “the regulated and speculative nature of a particular

industry should be considered in determining whether investment-

backed expectations are reasonable.” 201 P.3d 8, 31 (Mont. 2008). The

Kafka court concluded “appellants should have reasonably anticipated

that the Game Farm industry might be phased out due to health and

safety-related concerns over CWD.” Id. at 32; see also Buhmann v. State,

201 P.3d 70, 94 (Mont. 2008) (noting dangers of CWD to deer and elk

population were “publicly known and very controversial among many

members of the public”); see generally Ronald W. Opsahl, Chronic

Wasting Disease of Deer and Elk, A Call for National Action, 33 Envtl. L.

1059, 1061–62 (2003) (providing history of CWD including endemic

presence in northeastern Colorado, southeastern Wyoming, and western

Nebraska and presence in a number of other states).

As a result, we do not conclude the investment-backed

expectations have been dramatically upset here. One of the downsides of

entering a regulated field is that more intense regulation, particularly

when threatening diseases are involved, may be in the offing. When

diseases threaten industries, it is reasonable to expect that government

may be awakened from its regulatory slumber.

Finally, we consider, as Penn Central directs, the character of

government action. The purpose and importance of the government

action are relevant under this Penn Central factor. See Rose Acre, 559

F.3d at 1283. Here, the purpose of the government action was to protect 50

wildlife in Iowa from a potentially contagious disease by imposing a

quarantine on land where the diseased deer had been present. There is

no doubt the Brakkes felt the brunt of the government’s action. Yet there

is nothing in the record to suggest the Brakkes were arbitrarily singled

out for special treatment.

Further, the testimony at the hearing indicated the action taken by

the government was not substantially out of proportion to the purpose

and importance behind the regulatory regime. Any physical invasion of

the land was minimal. In light of all the facts and circumstances, the

government has not taken “regulatory actions that are functionally

equivalent to the classic taking in which government directly

appropriates private property or outs the owner from his domain.”

Lingle, 544 U.S. at 539, 125 S. Ct. at 2082.

VI. Conclusion.

For the above reasons, we affirm the judgment of the district court.

AFFIRMED.

All justices concur except Mansfield and Waterman, JJ., who

concur in part and dissent in part. 51 #15–0328, Brakke v. Iowa DNR MANSFIELD, Justice (concurring in part and dissenting in part).

I respectfully dissent with respect to Part III of the court’s opinion.

I believe the court is taking an overly technical view of the underlying

statutory authority provided to the Iowa Department of Natural

Resources (DNR).

I do not share the majority’s view that the statute is clear and

unambiguous. We read statutes as a whole. See In re Estate of Gantner,

893 N.W.2d 896, 902 (Iowa 2017). Iowa Code section 484C.12(1) (2013)

says the DNR “may provide for the quarantine of diseased preserve

whitetail that threaten the health of animal populations.” Yet the next

subsection, 484C.12(2), states “[t]he landowner, or the landowner’s

veterinarian, and an epidemiologist designated by [DNR] shall develop a

plan,” which “shall be designed to reduce and then eliminate the

reportable disease, and to prevent the spread of the disease to other

animals.” Iowa Code § 484C.12(2). Both subsections need to be read

together.

If we read subsection 1 as limiting DNR’s authority strictly to the

diseased deer themselves, we cannot account for subsection 2, which

gives the DNR broader authority over a “landowner” to implement a plan

to “eliminate the reportable disease” and prevent its spread “to other

animals.” When we interpret a statute, we try to harmonize its parts.

Iowa Individual Health Benefit Reins. Ass’n v. State Univ. of Iowa, 876

N.W.2d 800, 805 (Iowa 2016). Doing so here, I would conclude that the

term “quarantine” gives DNR authority to do what medical science would

regard as a reasonable quarantine in response to the outbreak of

disease, which may include measures that affect the land as well as the

animals. 52

The majority’s hypertechnical interpretation of the statute proves

too much. Note that the statute says “quarantine of diseased preserve

whitetail,” not “quarantine of whitetail that may have been exposed to the

disease.” Thus, under the majority’s view, DNR could only take action

with respect to deer that currently have the disease, not to other deer on

the farm that have been exposed to the disease. That is not all. Under

the majority’s view, DNR could not require the landowner to disinfect

areas of the farm where the diseased deer have been recently.

Furthermore, once the diseased deer have died and their carcasses have

been removed, DNR would be without authority altogether. If the

majority is right, DNR’s authority would be limited strictly to the sick

animals themselves and nothing else. 5

Although I do not think we need to reach the absurd-results

doctrine in light of the ambiguity of section 484C.12 taken as a whole,

the majority’s reading of the statute is indeed absurd. If a hospital has

authority to “quarantine” a patient, does that mean it can’t keep people

out of the patient’s room when the patient is not there? Any infectious

disease quarantine has to have some connection to a place where an

infected individual has been, not just to that individual. 6 Furthermore, DNR has issued a regulation that clearly empowers

DNR to do what it did. It provides, “A positive test result for chronic

wasting disease will result in a minimum of a five-year quarantine on the

preserve and all remaining animals located within the infected preserve.”

5Under the majority’s view that Iowa Code section 484C.12 only authorizes DNR to isolate the diseased animals and do nothing else, I question whether DNR could even direct the landowner to kill the animals. 6I agree with DNR: “A spatial component is therefore implicit in the definition of

quarantine.” 53

Iowa Admin. Code r. 571—115.10. While Iowa Code section 484C.3 is a

general grant of rulemaking authority, 7 rather than a specific grant of

interpretive authority, it is fair to characterize “quarantine” as

“specialized language” and “a substantive term within the special

expertise of the agency.” See Renda v. Iowa Civil Rights Comm’n, 784

N.W.2d 8, 13–14 (Iowa 2010). Hence, I would defer to DNR’s

interpretation unless it is “irrational, illogical, or wholly unjustifiable.”

Iowa Code § 17A.19(10)(l). Both sides in this appeal agree that this

deferential standard of review is appropriate here.

I do not think it is “irrational, illogical, or wholly unjustifiable” to

interpret section 484C.12 as giving DNR authority to require reasonable

actions to prevent the spread of the disease based upon where the

animals previously were in addition to simply moving the diseased

animals themselves.

Additionally, this law operates in a public health area where the

State historically has broad authority to act. “Unquestionably, the

inherent police power of a state allows a state to establish quarantines to

control disease in animals.” Johansson v. Bd. of Animal Health, 601

F. Supp. 1018, 1021 (D. Minn. 1985).

In Shinrone Farms, Inc. v. Gosch, we were asked to interpret an

Iowa Code section relating to brucellosis control. See 319 N.W.2d 298

(Iowa 1982). At the time the relevant Code section provided,

Whenever the balance of [the county brucellosis eradication] fund becomes less than twenty-five hundred dollars, the county auditor shall notify the department [of agriculture] in writing of such fact, and no expense shall be incurred on such account in excess of the cash available in such fund.

7Iowa Code section 484C.3 provides, “The department shall adopt rules

pursuant to chapter 17A as necessary to administer this chapter.” 54

Iowa Code § 164.27 (1975). In 1977, the Sac County brucellosis

eradication fund lacked sufficient funds to indemnify Shinrone in full for

a brucellosis control claim. Id. at 300. Following the farm’s

commencement of litigation, the farm and the county entered into a

settlement whereby levies for the benefit of the fund in the maximum

amount would continue in future years and the fund would make

payments to Shinrone in future years, until Shinrone’s indemnity claim

was paid off. Id. The attorney general, however, issued an opinion that

“the county could not commit the fund, for successive years, to payment

of the claim.” Id.

We found the settlement was binding and enforceable

notwithstanding Iowa Code section 164.27 and other Code provisions.

We first observed, “Because chapter 164 is a health regulation within the

state’s police power, it is to be liberally construed.” Id. at 302. We then

held that section 164.27, “if interpreted to foster the public health

objectives of chapter 164, permits the settlement entered into in this

case.” Id. at 304. In our view, the section only prohibited current cash

payments once the fund balance fell below $2500, not binding

agreements to make payments in future years. Id. at 304–05. Courts must be sensitive to regulatory overreach. Government

agencies should not issue a quarantine order that affects a landowner’s

livelihood without a legitimate medical and scientific basis for doing so.

Although the parties strongly disagree as to the need for the measures

ordered here, the conflicting scientific evidence was presented to the

commission, which upheld DNR’s order. The district court’s order, like

today’s opinion, is based solely on DNR’s alleged lack of legal authority

due to a crabbed reading of a statute. I’m not qualified to evaluate the

science, but on the law I disagree with my colleagues. 55

For the foregoing reasons, I would reverse the district court’s

judicial review order and reinstate the decision of the Natural Resource

Commission.

Waterman, J., joins this concurrence in part and dissent in part.