Water Works lawsuit dismissed

Friday, March 17, 2017

A United States District Court judge has struck down all of the counts in a high-profile lawsuit in which the Des Moines Water Works sued Buena Vista, Sac and Calhoun counties and drainage districts in those counties over nitrates in the Raccoon River that provides some of the drinking water for the metro area.

On Friday, Chief United States District Judge Leonard Strand ruled that the Water Works allegations have no merit, ending the suit that had been slowly working its way toward a trial for two years. His action dismisses the case entirely. A trial had been expected to start in June.

"Here, DMWW asserts that it has two property rights: (1) the right to obtain clean water from the Raccoon River and (2) the right to use its treatment plant and facilities without impairment from pollutants discharged into the Raccoon River," the judge said in his summary. "Even if these could be considered cognizable property rights under state law, DMWW holds those rights as a public entity, making them public property rights not protected by the Fifth Amendment's Takings Clause. Moreover, based on the federal law authorities cited by the Iowa Supreme Court, a public entity such as DMWW cannot assert a Fifth Amendment takings claim against another political subdivision of the state. For these reasons, DMWW has no cognizable claim..."

He noted that the Iowa Supreme Court had recently established that Counts III through IX in the suit have no merit under Iowa law. "This leaves for this court's consideration only DMWW's various contentions that Iowa law violates its rights under the United States Constitution. Having found those contentions to be entirely devoid of merit, I will grant the defendants' motion for summary judgment as to all of these counts."

"We won," said Gary Armstrong, who has represented Buena Vista County in the lengthy action. "It's been booted."

He noted that local taxpayers have actually paid very little in the defense effort - the same approximately $20,000 that other counties have contributed - thanks to support from agricultural groups around the state. "The taxpayers got a million-dollar defense for very little money of their own," Armstrong said.

"It was a very important victory. This case has implications for the entire state, really the nation - certainly for the upper midwest."

Armstrong noted that the lawsuit did not actually target the counties, but only land in specific drainage districts, including 1,900 acres in Buena Vista County.

The turning point in the case, he felt, was that drainage districts are ultimately "creatures of statute." They have only the power that Iowa Code and the legislature specifies, and have no authority to tell farmers how to use nitrates. Armstrong compared it to suing a county because someone was driving through it with meth in a vehicle.

The Iowa Supreme Court had stated that the districts can't be sued for monetary damages.

"Getting down to the brass tacks, we won because drainage districts have no authority to do the things the Water Works wanted them to do," the attorney said. "They can't be subject to permits, because the Iowa Code doesn't get them authority to get permits."

Had the suit been successful, it would have raised implications for some nine million acres of land in drainage districts in Iowa, Armstrong noted.

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