State asks Supreme Court to throw out suit over Raccoon River pollution

By: - January 20, 2020 6:00 am

American Rivers ranks the Raccoon River as the ninth-most-endangered in the country. (Photo by Perry Beeman/Iowa Capital Dispatch)

A fight over the condition of the Raccoon River has spilled into the Iowa Supreme Court.

On one side are Des Moines-based Iowa Citizens for Community Improvement and the national nonprofit Food & Water Watch. In a lawsuit filed in March 2019, they contend the state has failed to protect and restore the Raccoon River, a major source of both drinking water and recreation and a regular recipient of farm runoff. They argue Iowans are being deprived of their opportunity to use and enjoy the river. 

The plaintiffs asked a Polk County District Court judge to force the state to come up with a plan to clean up the ag pollution, and to control it in the future. They also asked for a moratorium on certain hog confinement projects in the area and want the court to declare the state’s voluntary program — the Nutrient Reduction Strategy — unconstitutional in part because residents are being denied full use of the stream. 

The state asked Polk County Judge Robert Hanson to dismiss the case, arguing that the plaintiffs are asking the court to answer what amount to political questions that are up to the Iowa Legislature to decide, and don’t have legal standing. State lawyers contended that the two plaintiff organizations had not done all they could to solve their issues through the state agencies. 

In November, Hanson denied the motion to dismiss.

“On the fact as included in the petition, the only reason administrative agencies are involved in the state’s voluntary agricultural water pollution controls for nutrients is due to the action or inaction of the Legislature,” and lawmakers, not DNR and other state agencies, need to address the issues, Hanson wrote. He ruled that ICCI and its partner organization do have legal standing. 

State lawyers then asked the Iowa Supreme Court to consider the motion to dismiss — and the court agreed to consider the appeal. 

The plaintiffs filed briefs with the Supreme Court on Jan. 13. The state had filed a couple of weeks earlier under a different deadline. 

“The state’s obligation to protect the Raccoon River is not a ‘political question’ just because the General Assembly has allowed Big Ag to play politics with Iowans’ right to clean water,” Emma Schmit, an organizer for Food & Water Action, said in a statement. “The courts have the power to act where Iowa’s legislators have failed, particularly where, as here, constitutional rights are at stake.”

State lawyers filed a brief on Dec. 27 in which the state repeated its view that the nonprofit organizations don’t have standing and are asking for the courts to replace the Legislature’s role in deciding what to do about water quality issues.

The nonprofits “cast off the political process and filed a lawsuit, asking the judiciary to insert itself into the management and regulation of the State’s nutrient reduction efforts and the construction and/or expansion of certain livestock production facilities in Iowa’s Raccoon River watershed,” wrote Jeffrey Thompson, state solicitor general.

“ICCI asks the District Court to overturn the nutrient reduction efforts and strategies chosen and implemented by the executive and legislative branches in the watershed; manage, over an indeterminate period of time, replacement efforts and strategies; and suspend a variety of laws related to the construction and/or expansion of certain livestock facilities until sufficient progress is achieved. This the judiciary cannot do,” Thompson wrote.

ICCI state policy director Adam Mason said he expects a hearing as early as March, after “friends of the court” briefs are filed. 

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