Uncritical dispositions

BY ART CULLEN

US District Court Judge Leonard Strand could use an Iowa Supreme Court ruling as cause to dismiss the Des Moines Water Works ag pollution lawsuit against Buena Vista, Calhoun and Sac counties. The state high court ruled Friday that under Iowa law: Drainage districts are immune from money damages and injunctions barring certain practices; one unit of government (the water works) cannot sue another (drainage districts); and the only remedy available from drainage districts are court orders (called writs of mandamus) that can direct drainage districts to do things that are within their legally prescribed authority (which isn’t much).

In short, the Iowa court said that there are no remedies available to the water works under state law.

The supreme court was asked by the federal court to answer certain questions regarding state law, such as: Are drainage districts immune from money damages? The answer is yes, said Justice Thomas Waterman in writing for the 3-2 majority (with two justices abstaining, Hecht and Wiggins). He stood primarily on the ground that this concept has been visited many times over the past century, the latest being four years ago, and the court should not move unless there is some extraordinary new claim. The water works claim did not fall into that category for reasons unstated. So Iowa stands pat.

According to several lawyers we spoke with, including a former appellate justice, if Strand did not want to hear the case he could use the state court opinion as a gangplank to a watery grave for the river-pollution lawsuit. Immunity becomes a blanket protection that the judge could find attractive.

While the water works folks acknowledge this reality, they say that federal remedies are available if Strand fully explores the facts and their arguments. Federal law trumps state law in most circumstances. The state court opinion essentially informs the federal court and binds it in some ways, but does not necessarily exhaust remedies.

Noteworthy are two dissents from Chief Justice Mark Cady and Justice Brent Appel, and they deserve the consideration of Judge Strand as he contemplates a motion for summary judgment filed by the counties to dismiss the case before its June trial.

Cady wrote in a short dissenting opinion: “The equitable remedies now asserted are not new to our law; they are only difficult to see in the context of this case. That difficulty is not, however, a reason to dismiss the case, especially when the facts in evidence have not yet been presented. The seriousness of facts can often help to see the availability of equitable relief. Furthermore, law develops through our changed understanding, including our understanding of the environmental impact of drainage districts.”

Appel made a strong cautionary statement to his peers and, we would suggest, to Judge Strand. He wrote: “We should be particularly alert to avoid masking preferred policy choices in a stare decisis (standing by previous decisions) costume. And, an overburdened court may be tempted to over-read precedent in the name of efficiency and quick results, but such an approach runs the risk of uncritical dispositions. Yet, notions of nuance and context could be extended so far that there would almost never be an occasion to apply stare decisis and literally nothing would ever be settled in the law. In close cases, the determination of whether to apply stare decisis is a matter of judgment, not inexorable command.”

What has been does not mean it ought to be when new circumstances emerge. And that is what the water works is arguing.

It seeks primarily to define agricultural drainage, from a pipe into the river, as “point-source” pollution subject to regulation under the Clean Water Act. Agriculture currently is exempt from regulation as a “non-point source” of nitrate pollution. The key question is: What makes a drainage tile different from a municipal sewage pipe? Each pollutes at a point. Each has a source that can be identified: a city filled with people or a drainage district filled with fertilizer. Under the Clean Water Act, neither is immune and there are prescribed penalties to municipalities.

The majority of the Iowa Supreme Court shifts the burden for cleaning up pollution to the water works, saying that is a more efficient way to handle agricultural costs than by assessing those costs to agriculture. If we don’t like it, let the legislature fix it, Waterman suggests. Cady adds that he believes we have something to fix, that things have changed over the past century. Appel obviously is eager to dig deeper. The supreme court is as confused and divided as the rest of us how to apportion the environmental costs of industry. The current Iowa method is to do nothing.

All of that suggests that we need a hearing of the facts and the law. A trial that explores all the causes and implications, that establishes the science, that sorts out the interests and how they are influenced. The state court opinion might be colored to the extent Justice Appel suggests. Judge Strand will have the opportunity to get to the real question — Can agriculture be regulated? — if he chooses to. The Iowa Supreme Court does not tell us, but that is not necessarily the final word.