An old, rarely used but potentially powerful legal weapon known as the public trust doctrine is being employed to try to force Iowa to reduce pollution from farm runoff.
Iowa Citizens for Community Improvement and Food & Water Watch filed a lawsuit in Iowa state court March 27 that seeks to compel the state to limit agricultural runoff in the Raccoon River watershed, one of the primary sources of Des Moines’ drinking water. The lawsuit says the state’s legislature and government have failed to control agricultural pollution sufficiently in the watershed.
“Iowa Citizens bring this action because the people of Iowa have a right to clean water, and the State of Iowa has violated its duty to protect the Raccoon River for the benefit of the people,” the lawsuit says in its first sentence.
The lawsuit takes aim at the state’s voluntary Nutrient Reduction Strategy, quoting the state’s March 7 progress report as saying that “early NRS efforts only scratch the surface” of what is necessary to meet ambitious nutrient reduction targets. “Progress has occurred, but not at the scale that would impact statewide water quality measures.”
The state legislature’s endorsement last year of the strategy as the official policy for nitrogen and phosphorus control should be declared null and void as inconsistent with the public trust doctrine, the lawsuit says, and the state should be ordered to “adopt and implement a mandatory remedial plan” that would require farms and concentrated animal feeding operations to reduce nitrogen and phosphorus runoff in the Raccoon River watershed.
The lawsuit comes two years after Des Moines Water Works’ legal attempts to hold drainage districts responsible for nitrogen and phosphorus pollution in the Des Moines and Raccoon rivers ran aground on the shoals of the state and federal courts.
The Iowa Supreme Court said the drainage districts were immune from claims for damages, and the federal court, ruling in a Clean Water Act challenge, never got to the question of whether the districts are “point sources.” The judge in that case found that DMWW did not have legal standing to bring its action because the districts had immunity and were not in a position to address the problems.
The state has not adopted numeric nitrogen and phosphorus water quality standards to address eutrophication, algae, and cyanobacteria, also known as blue-green algae. Cyanobacteria excrete cyanotoxins, which are toxic to humans and animals, the complaint says.
The lawsuit noted that in February, the state’s Environmental Protection Commission rejected a petition filed by the Iowa Environmental Council and the Environmental Law and Policy Center to set numeric water quality criteria for lakes.
But the public trust doctrine "requires the state to protect the public’s use and not abdicate control to private interests,” Iowa CCI and FWW said in their press release. “With well documented water pollution and only voluntary agricultural pollution controls, the suit alleges that the state is failing to uphold its duty.”
Brent Newell, an attorney with Public Justice in Oakland, Calif., declined to discuss the public trust doctrine but said, "Clean water is a right in Iowa, and my clients are committed to moving the case forward."
Eldon McAfee, an attorney with Brick & Gentry in Des Moines who represents the Iowa Pork Producers Association and the Iowa Cattlemen's Association, said his clients have asked him to analyze the lawsuit but have not decided whether or how they might become involved.
He said the lawsuit contains some misrepresentations, such as when it says that Iowa DNR allowed manure discharges to navigable waters by authorizing applications to frozen, snow-covered ground this winter. McAfee said such applications are allowed under emergency conditions, which existed this winter after record rains in the fall prevented applications. Iowa law specifically prohibits discharges of manure to navigable waters, he said.
Eldon McAfee
McAfee said Iowa's courts have generally embraced a "conservative" approach to use of the public trust doctrine, but they will now be faced with the question of how far to extend it. If they decide the doctrine applies to this latest case, he said, "then the question will be, has it been violated?" Another question is, "Are the elected officials protecting state resources well under the public trust doctrine?"
The Iowa Supreme Court said in a 1989 decision that the public trust doctrine applies to navigable waters.
“We do not necessarily subscribe to broad applications of the doctrine, noted by one authority to include rural parklands, historic battlefields, or archaeological remains,” the court said in State v. Sorensen. “Nevertheless, we believe that a navigable river is unquestionably a part of the public trust.” The court also said the doctrine “is not limited to navigation or commerce; it applies broadly to the public's use of property, such as waterways, without ironclad parameters on the types of uses to be protected.”
The Iowa Corn Growers Association said the lawsuit was ill-timed given the historic flooding that has hit the state’s farmers.
“Iowa farmers are aware of the role we play in our state’s quality of life. This includes the water we share,” Iowa Corn Growers Association President Curt Mether, a farmer from Logan, said. “By implementing Iowa’s nutrient reduction strategy, we embrace the best science and rely on years of experience to collaborate in results that better our water.”
The public trust doctrine is being eyed more by public interest groups to right what they see as environmental wrongs.
“The public trust doctrine starts with the proposition that the natural resources on which we all depend – our water, air, forests and wildlife – are essential to our well-being and must be protected from impairment and degradation,” Skip Pruss, chairman of For Love of Water in Traverse City, Mich., wrote a year ago.
“The public trust doctrine will become increasingly important as issues of water availability, water quality, and water scarcity become more frequent and more contentious,” Pruss wrote, calling the doctrine “uniquely compelling as a means to address large-scale complex problems. With so much at stake, a broad application of the public trust doctrine is needed now.”
“The public trust doctrine originates from the Code of Justinian, and is based on the notion that the public possesses inviolable rights to certain natural resources,” the lawsuit explains. “The doctrine was adopted into English common law and subsequently into the common law of the original 13 states upon independence from England.”
An oft-cited 1989 paper by University of Washington environmental law professor Ralph Johnson said the doctrine “can be the basis of judicial as well as legislative action. If applied by the courts, the doctrine can sometimes give greater recognition to public interests at times when legislatures are under excessive pressure by special interest lobbyists.”
But Kirk Leeds, CEO of the Iowa Soybean Association said the lawsuit "only improves the financial well-being of a group of lawyers.
"One thing we learned from the unfortunate Des Moines Waterworks lawsuit was that attempts to use the courts to address what is clearly an issue best handled by the legislature does nothing to improve water quality in the state. The critics of farming in Iowa who are suing the state of Iowa haven’t been successful in getting the Iowa legislature to support their political agenda, so they have decided to try to use the court system instead. It’s a misplaced approach and it too will most likely fail."
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