10:00 a.m. - 10:30 a.m.

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1 Environmental Law Seminar An Update on Drainage Districts and Iowa Drainage Law 10:00 a.m. - 10:30 a.m. Presented by Erin Herbold-Swalwell Brick Gentry 6701 Westown Pkwy Suite 100 West Des Moines, IA Phone: Eldon McAfee Brick Gentry 6701 Westown Pkwy Suite 100 West Des Moines, IA Phone: Friday, February 17, 2017

2 AN UPDATE ON DRAINAGE DISTRICTS AND IOWA DRAINAGE LAW 2017 ISBA Environmental Law Seminar, Drake University Law School February 17, 2017 Eldon McAfee Erin Herbold-Swalwell Brick Gentry, P.C Westown Pkwy, Suite 100, West Des Moines, IA Office , CONTENTS Page 1. Iowa Drainage Law Update Drainage Districts Case Update and Legislation Board of Water Works Trustees of the City of Des Moines v. Sac County Board of Supervisors, as Trustees of Drainage Districts 32, 42, 65, 79, 81, 83 and 86, et. al., NO. C LTS, U.S. District Court, Northern District of Iowa Western Division 9 1. Iowa Drainage Law Update a. In Iowa, the dominant estate (higher elevation) landowner has the right to let naturallyoccurring water course from his land to the servient estate (lower elevation). Iowa Code : Owners of land may drain the land in the general course of natural drainage by constructing or reconstructing open or covered drains, discharging the drains in any natural watercourse or depression so the water will be carried into some other natural watercourse, and if the drainage is wholly upon the owner s land the owner is not liable in damages for the drainage unless it increases the quantity of water or changes the manner of discharge on the land of another. An owner in constructing a replacement drain, wholly on the owner s land, and in the exercise of due care, is not liable in damages to another if a previously constructed drain on the owner s own land is rendered inoperative or less efficient by the new drain, unless in violation of the terms of a written contract. 1

3 Iowa Code 468.2(1): The drainage of surface waters from agricultural lands and all other lands or the protection of such lands from overflow shall be presumed to be a public benefit and conducive to the public health, convenience, and welfare. See also Wright v. Repp Farms, Inc., 5/205/ (Iowa App. 2005), citing Hicks v. Franklin County Auditor, 514 N.W.2d 431, 435 (Iowa 1994). In Iowa there is also a common law rule which provides: There has been adopted and developed in this jurisdiction what may best be characterized as a modified civil law rule which recognizes a servitude of natural drainage as between adjoining lands. Under this concept a servient estate must accept surface waters which drain thereon from a dominant estate. On the other hand, no right exists to alter the natural system of drainage from a dominant estate in such manner as to substantially increase the servient estate burden. Braverman v. Eicher, 238 N.W.2d 331, 334 (Iowa 1976). The holder of a dominant estate has a legal and natural easement in a servient estate for the drainage of surface waters. Franklin v. Sedore, 450 N.W.2d 849, 852 (Iowa 1990). o In addition, our supreme court has held that the owner of a dominant estate is not required to retain water in ponds or depressions to his detriment. Moody v. Van Wechel, 402 N.W.2d 752, 757 (Iowa 1987). The owner may divert water by surface drainage even though additional water enters the servient estate. Id. This rule, however, is subject to limitations. A servient owner is entitled to relief if the volume of water is substantially increased, or if the manner or method of drainage is substantially changed, and this results in actual damages. Grace Hodgson Trust v. McClannahan, 569 N.W.2d 397, 399 (Iowa Ct. App. 1997). Wright v. Repp Farms, Inc. An owner of a dominant estate has the right to drain land onto a servient estate even though this result in an increase in the amount of water being drained. Dodd v. Blazek, 66 N.W.2d 104 (Iowa 1954). The natural flow or passage of the waters cannot be interrupted or prevented by the servient owner to the detriment or injury of the dominant proprietor. Thome v. Retterath, 433 N.W.2d 51, 53 (Iowa App. 1988). Sobotka v. Salamah, 828 N.W.2d 325 unpub. (Iowa Ct. App. Jan. 9, 2013).Case stands for the long-standing common law rule in Iowa that the owner of servient land cannot interfere with the natural water drainage from a dominant land owner and breach of the duty could result in a significant damage award. Here, landowners challenged the sufficiency of the evidence supporting the district court s finding of liability for the obstruction of the flow of water onto the plaintiffs land, as well as the court s award of punitive damages and injunctive relief. In a cross-appeal, the prevailing parties contended they were entitled to additional damages. We affirm the district court's liability conclusion, award of 2

4 injunctive relief and compensatory damages, and its refusal to award double damages. We reverse the court's award of punitive damages. We remand for entry of judgment in the reduced amount. Costs of the appeal shall be divided equally between the plaintiffs and defendants. Analysis of a drainage case: o Is the land in a drainage district or is there a drainage agreement between the landowners? If so, consult the statutory provisions and terms of the drainage district or the terms of the drainage agreement. o Will there be a substantial increase in volume or will there be a substantial change in the manner or method of drainage, either of which will result in actual damages? o For an overview of Iowa drainage law, see Iowa Surface Drainage Law and Groundwater Quality Protection: Is There Potential Landowner Liability for Plugging Agricultural Drainage Wells and Sinkholes?, - Sec. II, Principles of Iowa Drainage Law, Neil Hamilton, Drake Law Review, Vol. 39, No. 4, pp ( ). b. Lease Supplements: Tile and Drainage Improvements o Lease Supplement for Use in Obtaining Tile and Drainage Improvements between Land Owners and Tenants, available at o In an agreement for tile and drainage improvements between Landlords and Tenants, the signers agree that the improvements (they agree upon and list in the written farm lease) will be completed on the describedfarm on or before a specific date listed. o The Landlord and Tenant agree on who will pay the costs necessary to complete the improvement, who will provide labor, the estimated value of the project, and whether the tenant s contribution will reduce the cash rental rate. This agreement can be signed as a separate contract or a supplement to the written farm lease. o Common fact pattern: An upgradient landowner wants to install additional field tile and the downgradient landowner demands compensation for installing or allowing the installation of larger tile to handle the additional drainage into the downgradient landowner s existing field tile. In other words, must the downgradient landowner accept, either into tile lines or onto the land surface, drainage from the upgradient landowner s land. o In the typical farm fact situation, the dominant estate has a right to drain water onto the servient estate without the consent of, or payment of compensation to, the servient estate. 3

5 Lease Supplement for Obtaining Conservation Practices and Controlling Soil Loss, publication available at o Landlord and Tenant agree to follow specific conservation practices that will control soil loss for a field or farm. o Contains provisions relating to ground cover, cost-share payments available through the Natural Resource and Conservation Service (NRCS), soil loss limits, cropping practices that will be required by Landlord, such as contour planting and tiling, no-till on designated fields, etc. o The purpose is to encourage cooperation between landlords and tenants to maintain conservation practices. The theory is that a tenant is not likely to make a significant contribution to soil conservation unless the costs are shared and tenant is assured repayment, etc. c. Practical solutions available?: Tile drain easements, including express easements, implied easements and prescriptive easements. An express easement, or written agreement, recorded in the property records is the easiest and most practical to enforce. 2. Drainage Districts Case Update and Legislation. In 1908, the Iowa Legislature created a system of drainage districts to facilitate construction and repair of drainage tile, levies, waterways, and terraces in certain parts of the state. Amendment of 1908 adding Section 18 of Article I of the Iowa Constitution. The drainage district system was supposed to make the management of drainage water more efficient by allowing drainage outside of the natural course as discussed above. A county board of supervisors can establish a drainage district or two or more landowners by filing a petition with the county auditor. Once the district is established, then a tax assessment is made against benefitted land and kept in a county drainage fund. Recent Case Law Involving Drainage Districts and Rights of Landowners: o Chicago Central and Pacific Railroad Company v. Calhoun County Board of Supervisors, No / , 2010 Iowa App. LEXIS 1343 (Iowa Ct. App., Nov. 10, 2010). 1. Here, railroad workers discovered a sink hold under the railroad tracks. The land was located in a drainage district. Railroad workers contacted the county engineer and the county refused to fix it, saying that it was not the responsibility of the drainage district. The railroad fixed the problem and brought suit to recover the cost. 2. The drainage district argued that Iowa Code Ch. 468 stated that the cost of repairing a culvert or bridge when the improvement is located at a place of natural waterway is the responsibility of the railroad. The railroad argued that provision only applied to the duty of railroads to pay the costs of the initial construction. 4

6 3. The trial court sided with the drainage district and looked at definitions of the word culvert. The trial court determined that even though the pipe was connected to a tile line in a field that falls within the drainage district, the district was not responsible. 4. The appellate court agreed and looked at the legislative history. When railroad companies were constructing the lines, they assumed the responsibility for maintenance of the embankments and ditches associated with the railroad. o Hardin County Drainage Dist. 55 v. Union Pacific Railroad Co., 2013 Iowa Sup. LEXIS 10 (Iowa Sup. Ct. 2013) 1. In a similar fact pattern,, Union Pacific filled a void under the track with rock in compliance with federal safety regulations. However, the void damaged drain tile installed in The land was part of a drainage district. The drainage district notified the railroad that they needed to fix the damage to the drain tile. After notice was sent, the drainage district decided they needed a bigger tile and installed it. The railroad didn t object, but refused to pay. 2. Iowa Code requires railroads receive notice of an improvement if in the railroad right of way. The issue was whether the damaged drainage tile was a culvert and if the railroad was responsible for the cost of improvement. If it was just tile, then they are not responsible. 3. The court concluded that the district was responsible because the legislature did not intent for the railroad to be financially responsible for underground improvements to drainage that need to occur regardless of whether the railroad exists. o Gannon, et al. v. Rumbaugh, 772 N.W.2d 258 (Iowa Ct. App. 2009) 1. Two neighboring landowners sued an adjacent landowner on theories of nuisance, negligence, trespass, and failure to abide by Iowa drainage district rules when the adjacent landowner lowered a levy and built a dam on his property resulting in flooding of the plaintiffs property. 2. A Drainage District was established on the land to prevent flooding in the 1900 s. There were significant issues discussed in the case regarding whether the district was dissolved at some point. 3. The trial court sided with the plaintiffs on all counts and ordered the defendant to pay damages and restore the levee and road ditch. 4. The appellate court did not give deference to the trial court and closely scrutinized the record, finding that there was evidence that the district had been dissolved, that mediation had not been attempted as required by Iowa Code for farm disputes involving nuisance, and that the defendant was not negligent in removing the levy because the flow was increased in the natural course of drainage. o Ray W. Ohrtman Revocable Trust, et al. v. Palo Alto County Board of Supervisors, et al. (Iowa Ct. App., Dec. 17, 2008) 5

7 1. This case involved the annexation of land into a drainage district. Can land benefitted by a district be annexed into an existing district? 2. A district was established in 1916 with about 12,000 acres. The drainage district received drainage from nearly 45,000 acres of adjoining lands through ditches and tile. The defendant sought to annex the adjoining lands into the district and the plaintiff objected. Both sides hired engineers. 3. Land can be annexed if an engineer examines the land and conducts a survey and plat showing the condition of drainage and the benefit to the annexed land. If annexation is recommended, then the board can annex the land if notice and an opportunity for hearing has been given. 4. The appellate court found the more specific report of the plaintiff s engineer more persuasive than the drainage district s engineer and held that the district failed to show that the plaintiff s land would materially benefit from the annexation. o Webster County Board of Supervisors v. Showers, 2006 Iowa App. LEXIS 1080 (Iowa Ct. App. 2006). 1. In this case, plaintiff owned farmland in a drainage district and attempted to drain from the watershed of one main of the district because he thought his drainage system was inadequate. He argued that he was entitled to use the facilities of the district. 2. Because the plaintiff interfered with a main for which he was not assessed, he could not install drainage tile and cause irreparable damage to the land. The appellate court affirmed the trial court, stating that plaintiff should have gotten permission to install the lateral tile and that the tile mains of the district were not designed to hold the extra water. The plaintiff was ordered to remove the tile and was barred from taking such actions in the future. o Vorhes Ltd. v. Staudt,2012 App. LEXIS 544 (Iowa Ct. App. Jul. 11, 2012) 1. Plaintiff landowners sued the county and board of supervisors for failure to adequately maintain a drainage district and claimed their land was damaged by increased water. The district attempted to fix the problem of the sink hole that developed for the plaintiffs and assessed the cost to the landowners in the district. 2. The Plaintiffs were not satisfied and sued the county. The court stated that the Plaintiffs were not entitled to a more expensive fix as that was a discretionary, not a mandatory improvement. There was abnormally high rainfall in the area that contributed to the increase in water and the Plaintiffs also did not take advantage of other solutions such as the planting of grasses to take care of the problem. o Olinger v. Smith, Iowa Ct. App., Dec. 21, Claims of trustees of drainage district violating IOMA (Iowa Open Meetings Act). 2. Drainage district and trustees are subject to requirements of IOMA. 6

8 3. Closed meetings: Substantial compliance with IOMA? 4. Case discusses removal of a trustee, damages and attorneys fees 5. Court held that trustees violated IOMA and did not provide a good-faith defense. The court assessed a fine and awarded attorney fees. o Naeve v. Humboldt County Drainage District #126, Iowa Ct. App. August 13, Pursuant to Iowa Code , landowners waived their arguments regarding procedural deficiencies in the creation of the drainage district by failing to timely file objections to notice or any other claimed procedural defect; landowners complaint was untimely under and they failed to show fraud, prejudice, gross error in the commissioners actions. 2. Purpose of a drainage district is to make land tillable or suitable for profitable use. To achieve the goal, counties can establish a district and construct whatever improvements as necessary for public health, convenience, welfare. o Pieper, Inc. v. Green Bay Levee & Drainage Dist. No. 2, 2016 Iowa App. LEXIS 1314 (Iowa Ct. App., Dec. 21, 2016). 1. Appeal from district court s rulings rejecting claims the drainage district improperly classified and assessed district landowners. 2. Court affirmed trial court based on review of whether the board acted illegally or in excess of jurisdiction. 3. Land was located along the Mississippi River. Litigation arose after improvement to river levee and proposal to construct a fertilizer plant on land benefited by the improvement. 4. Trial court ruled the commissioners carried out their duties and acted in a way consistent with the original establishment of the drainage district. o Christy v. Harrison County Board of Supervisors, 2015 Iowa App. LEXIS 433 (Iowa Ct. App., 2015) 1. Court held that Iowa Code (1)(a)vested the county board of supervisors with authority and jurisdiction to approve and pay for the replacement of a drainage tube. 2. The property owners lacked standing to challenge the absence of notice to other drainage districts or to require payment from other districts, as that decision rested with the board and the board s failure to notify other districts did not render an assessment excessive. o Knoer v. Palo Alto County Board of Supervisors, 2016 Iowa App. LEXIS 703 (Iowa Ct. App., June 29, 2016). 1. Landowner complained of a county road damming up water on his property, essentially acting as a levee. The county supervisors hired an engineer to evaluate the situation and the engineers voted to install a culvert under the road. The landowners to the south objected and filed a petition seeking injunctive relief and a writ of mandamus, arguing that Iowa Code Ch. 468 places duties on the supervisors to give notice and an 7

9 opportunity to be heard when an owner of land tries to secure better drainage across a highway. 2. The district court held that those provisions were only triggered when a private landowner filed an application with the county auditor. This was a situation where the county board of supervisors acted on their own to drain surface water from a public road in its natural channel. 3. The appellate court affirmed and stated that the board had discretion to do what they did and the court could not compel the board to follow procedures that did not apply to them. Legislation introduced Iowa Legislative Session 2017 relating to Water Quality and Drainage: o Senate Study Bill 1034 proposed by Governor. 01/31/17 Intro., ref. to Sen. Nat l Res. & Env. Subc. Rozenboom, Kinney, Dvorsky, Kapucian, Breitbach. Water Quality. This bill appropriates $229 million from RIIF over 13 fiscal years for water quality projects into a water quality infrastructure fund created by the bill and establishes two water quality programs (agriculture edge-of-the-field infrastructure and in-field infrastructure). Appropriations would be as follows: 4.3 million for FY ; 4.3 million for FY ; 11.5 million for FY ; 16.5 million for FY (two year period); 22 million for an eight year period and ending on June 30, o The bill requires the programs to be administered in accordance with the Iowa Nutrient Reduction Strategy and allows the Soil and Water Division to use 4% of the funds for administration. There are reporting requirements. o The programs (ag edge of the field/ and in field infrastructure) will provide financing on a cost-share basis to certain ag infrastructure projects including demonstration projects. The edge of field program will support projects that capture or filter nutrients entering into surface water. includes wetlands, bioreactors, saturated buffers, land use changes as examples that may qualify. The in-field program will support erosion decrease and precipitation induced surface runoff, increase water infiltration rates and soil sustainability. The bill includes structures, terraces, waterways and soil conservation or erosion control structures and managed drainage systems that might qualify. o The bill requires that the soil and water division and landowners enter into agreements for financing projects and the two programs may be combined if the cost is effective to do so. The bill provides that certain information related to ag land and obtained by the soil and water division under the programs remain confidential. o Tax: Exempts metered water sales to residential customers from the sales tax and establishes a 6% excise tax. Adds a sunset date for the tax. Transfers the funds 40% (IFA for wastewater/drinking water assistance) 45% (IFA water quality program); 15% (Soil & Water Division). Establishes a new water quality program. Contains implementing provisions. o House File 288 by Nunn. Introduced 2/9/2017 and referred to House Ways and Means. Water Excise Tax. Replaces the current sales tax on metered water with a 8

10 6% excise tax with 1/6 of the tax collected going to the SAVE fund. Phases out the excise tax by decreasing it by 1% each fiscal year. Sets excise tax to expire in Authorizes counties to implement a local option sales tax on water service of not more than 1% after passage of the tax in an election. If a county or city already has a local option sales tax in place, they are required to set the service tax on water at the same rate as the local option sales tax. 3. Board of Water Works Trustees of the City of Des Moines v. Sac County Board of Supervisors, as Trustees of Drainage Districts 32, 42, 65, 79, 81, 83 and 86, et. al., NO. C LTS, U.S. District Court, Northern District of Iowa Western Division. a. Federal Clean Water Act citizen suit in U.S. District Court, Northern District of Iowa, Western Division, Judge Leonard Strand. Complaint filed by Plaintiff Des Moines Waterworks (DMWW) on Mar. 16, 2015; against 10 Drainage Districts (DD s) in Sac, Buena Vista, and Calhoun counties b. Petitioners: DMWW i. Independently owned & operated public utility ii. Authorized under Iowa Code, but cannot levy taxes iii. Owned and funded by customers iv. Board appointed by mayor of Des Moines c. Defendants: Drainage Districts i. Authorized by Iowa Code to establish and maintain unified drainage systems to drain farmland ii. Assess fees to landowners for joint drainage tile and ditches d. Water Sampling by DMWW: i. March 18 until Dec. 30, 2014 for nitrates in nine different locations in the Drainage Districts e. Allegations by DMWW: i. Clean Water Act: Alleges discharges from field tile lines are discharges from point sources without an NPDES permit under the Clean Water Act a) Alleges discharges from field tile lines are discharges from point sources without an NPDES permit under the Clean Water Act b) Point sources are discernable, confined and discrete conveyances c) Alleges districts qualify as point sources due to extensive, unified, and engineered drainage systems d) CWA point source exemptions: 1. DMWW alleges not an ag storm water discharge that would be exempt under CWA because drainage is artificially drained groundwater, not ag storm water runoff 2. DMWW alleges not return flows from irrigated agriculture ii. Iowa Code 455B: Alleges discharges from field tile lines are discharges from point sources without a permit under Iowa law iii. Public, Statutory and Private Nuisance, Trespass, Negligence, Taking without compensation, and Due Process & Equal Protection iv. DMWW alleges: 9

11 a) Corn - soybean crop rotation & lack of perennial crops coupled with extensive subsurface tile drainage results in excessive nitrates in groundwater that are discharged to surface waters b) Surface water runoff has fewer nitrates than tile discharges the conveyance of nitrate is almost entirely by groundwater transport f. Trial date, June 26, 2017; estimated 2 week trial g. Drainage District s partial motion for summary judgment filed Sep. 24, 2015 on Counts III - X; i. Drainage Districts legal entities that are proper parties to adversary proceedings? ii. Drainage Districts subject to money damages and tort? iii. DMWW suit can only be brought by mandamus? iv. DMWW constitutional claims fail because: a) No allegation of taking of private property? b) Political subdivisions may not claim that other political subdivisions denied them of constitutional protections? h. Drainage District s motion for summary judgement filed April 1, 2016 on: a) Count I (discharges from field tile lines are discharges from point sources without an NPDES permit under the Clean Water Act) b) Count II (Iowa Code 455B: Alleges discharges from field tile lines are discharges from point sources without a permit under Iowa law) i. Board of Water Works Trustees of the City of Des Moines v. Sac County Board of Supervisors, as Trustees of Drainage Districts 32, 42, 65, 79, 81, 83 and 86, et. al., Iowa Supreme Court, No , Jan. 27, i. Opinion of Justice Waterman, joined by Justice Mansfield and Justice Zager (Justice Appel and Chief Justice Cady filed a concurring in part and dissenting in part opinion and Justice Wiggins and Justice Hecht took no part in the decision.) The Court began its 41 page majority/plurality opinion by expressly answering the questions certified by the U.S. District Court: Question 1: As a matter of Iowa law, does the doctrine of implied immunity of drainage districts as applied in cases such as Fisher v. Dallas County, 369 N.W.2d 426 (Iowa 1985), grant drainage districts unqualified immunity from all of the damage claims set forth in the complaint (docket no. 2)? Answer: Yes. As explained below, drainage districts have a limited, targeted role to facilitate the drainage of farmland in order to make it more productive. Accordingly, Iowa law has immunized drainage districts from damages claims for over a century. This immunity was reaffirmed unanimously by our court just over four years ago. Question 2: As a matter of Iowa law, does the doctrine of implied immunity grant drainage districts unqualified immunity from equitable remedies and claims other than mandamus? Answer: Yes. Again, Iowa precedent, reaffirmed unanimously by our court just four years ago, recognizes that drainage districts are immune from injunctive relief claims other than mandamus. Question 3: As a matter of Iowa law, can the plaintiff assert protections afforded by the Iowa Constitution s inalienable rights, due process, equal protection, and takings clauses against drainage districts as alleged in the complaint? 10

12 Answer: No. Although these constitutional clauses are fundamental to our freedom in Iowa, they exist to protect citizens against overreaching government. Generally, one subdivision of state government cannot sue another subdivision of state government under these clauses. And even if they could, an increased need to treat nitrates drawn from river water to meet standards for kitchen tap water would not amount to a constitutional violation. Question 4: As a matter of Iowa law, does the plaintiff have a property interest that may be the subject of a claim under the Iowa Constitution s takings clause as alleged in the complaint? Answer: No, for the reasons discussed in the answer to Question 3. In finding the Drainage Districts are immune from DMWW s claims for money damages, the Court noted that drainage districts have had immunity for over one hundred years and that there was no basis to change that legal precedent. The Court noted that the Iowa legislature had created drainage districts for a very limited purpose to drain and therefore make productive land that was otherwise unproductive. The Court also ruled that downstream property owners cannot sue drainage Districts for injunctive relief and that mandamus is the only proper remedy. Finally, the Court emphasized that this case was a dispute between public entities and ruled that the DMWW, as a government entity, cannot bring claims under the Iowa Constitution against the Drainage Districts as another government entity, e.g., [t]his case involves public water supplies, not private property. There can be no taking of a public resource. More specifically, the Court ruled: a) The Drainage Districts have no authority under state law to regulate farmer nitrate use and that lack of control means the Districts cannot be held liable for the discharges liability is premised on control the Court stated. b) Well established Iowa court decisions favor placing liability on the party who can avoid the harm at the least cost. As has been emphasized by the scientific and agricultural community, the Court ruled that because the Drainage Districts drainage systems were not designed or intended to filter out nitrates, the least-cost avoider for removing nitrates from drinking water may well be DMWW, the party which is already required by law to provide safe drinking water to its customers. The Court reinforced this point stating that DMWW itself at times has lawfully deposited back into the Raccoon River the very nitrates it removed and [t]he DMWW s claim that putting nitrates into the Raccoon River creates a public nuisance is at odds with its own practice of depositing those nitrates back into the same river. c) Iowa law gives farmers who comply with fertilizer label instructions immunity from liability for nitrate contamination and that reinforces the Drainage Districts immunity from DMWW s claims. As the Court stated, claims for nitrate contamination against drainage districts would be a way to get backdoor relief against farmers that the legislature has specifically barred through the front door. d) Iowa law only authorizes drainage districts to assess costs to landowners to drain land, not to assess costs to redesign drainage systems to abate nitrates. e) Drainage Districts could not get liability insurance for DMWW s claims, presumably because of the immunity provided by Iowa law. ii. Concurrence in part and dissent in part by Justice Appel joined by Chief Justice Cady. Justice Appel s 60 page opinion concurring in part and dissenting in part concluded as follows:... I would answer the certified questions as follows. 11

13 Question 1: As a matter of Iowa law, does the doctrine of implied immunity of drainage districts as applied in cases such as Fisher v. Dallas County, 369 N.W.2d 426 (Iowa 1985), grant drainage districts unqualified immunity from all of the damage claims set forth in the Complaint (docket no. 2)? Answer: Yes as to money damages generally. No as to just compensation that might arise from a takings claim. Question 2: As a matter of Iowa law, does the doctrine of implied immunity grant drainage districts unqualified immunity from equitable remedies and claims, other than mandamus? Answer: No. Question 3: As a matter of Iowa law, can the plaintiff assert protections afforded by the Iowa Constitution s inalienable rights, due process, equal protection, and takings clauses against drainage districts as alleged in the complaint? Answer: Yes with respect to the takings clause, no with respect to all other clauses. Question 4: As a matter of Iowa law, does the plaintiff have a property interest that may be the subject of a claim under the Iowa Constitution s takings clause as alleged in the complaint? Answer: Possibly, depending on further factual development. In summary, I would find that DMWW s lawsuit should be allowed to proceed. Of course, I express no view on the merits of the litigation. iii. Following the Iowa Supreme Court decision the U.S. District Court issued an Order on Jan. 27 directing the parties to provide a joint status report by Feb. 13, 2017 indicating their positions as to if and how further proceedings should be scheduled in federal court. This report, entitled Joint Status Report Regarding Iowa Supreme Court Ruling, was filed on Feb. 13. The parties agree that there are two pending motions for summary judgment filed by the Drainage Districts, but disagree on how the Supreme Court ruling affects those motions. a. Counts I and II. a. DMWW argues that the Iowa Supreme Court s ruling does not affect Counts I and II because they were not part of the certified questions. DMWW argues that the Drainage Districts have the power to do what is necessary to drain land within their districts and that power would necessarily include obtaining permits required by law, such as a NPDES permits. b. The Drainage Districts argue that although the Iowa Supreme Court s ruling was not directed at Counts I and II, the ruling still disposes of these counts as a matter of law because of the redressability argument. That being that because the Supreme Court ruled that the Drainage Districts do not have authority under Iowa law to regulate farmer nitrate use the Districts have no authority to require farmer compliance with NPDES permits for nitrate discharge even if the federal court were to rule that the federal Clean Water Act requires the Districts to obtain those permits. b. Counts III X. The parties agree that the only issues remaining after the Iowa Supreme Court decision under these counts are the federal constitutional claims. 1) DMWW argues that Iowa drainage law that gives the Districts total immunity for pollution violates federal Due Process, Equal Protection and Takings. 2) The Drainage Districts argue that the Iowa Supreme Court s ruling effectively resolves the federal constitutional issues because state law defines property for this issue and the Iowa Supreme Court found that the property right DMWW alleged does not exist under Iowa law. 12

14 c. The parties agreed that the June 26, 2017 trial date is feasible for any counts that remain after the court rules on the two pending motions for summary judgment. d. Regarding additional discovery, DMWW argues additional discovery should be permitted and that it should be allowed to designate a rebuttal expert witness. The Drainage Districts argue that discovery is closed. 13