Supreme Court dismisses case demanding state do more to protect Raccoon River

By: - June 18, 2021 9:09 am

The Raccoon River, a major source of drinking water, has chronic, severe runoff pollution. (Photo by Perry Beeman/Iowa Capital Dispatch)

The Iowa Supreme Court on Friday dismissed a lawsuit by environmental groups contending the state doesn’t properly protect the Raccoon River, a major drinking water source and recreational river.

The seven justices, with three dissents, ruled that Food & Water Action and Iowa Citizens for Community Improvement didn’t have standing to file the lawsuit and the matter wasn’t appropriate for the court to consider. Polk County Judge Robert Hanson earlier had declined the state’s motion to dismiss, and the state appealed to the Supreme Court. 

“We … leave this dispute where it stands at present: with the branches of our government whose duty it is to represent the public,” Justice Edward Mansfield wrote for the majority. “In the end, we believe it would exceed our institutional role to ‘hold the State accountable to the public.’ Those words, used by the plaintiffs to describe what they ask of us, go beyond the accepted role of courts and would entangle us in overseeing the political branches of government.” 

The court majority questioned the legal framework of the plaintiffs’ case, and how the state would achieve their goal in a large watershed with complex sources of pollution.

The three dissenting judges wrote that the environmental groups should have at least been given a chance to argue their case that the state was violating the “public trust doctrine” by not protecting the river adequately.

Justice Brent Appel, in a dissent, said the court had in effect adopted what former U.S. Supreme Court Justice Harry Blackmun once called “a slash-and-burn expedition through the law of environmental standing.”

Wrote Appel: “For starters, I would follow the approach of our state court colleagues in Colorado, Connecticut, Hawaii, Nevada, Oregon, and Washington and refuse to erect the barriers to access to the courts which were developed in a conference room in Washington, D.C., over the bitter protest of a minority of the Supreme Court.” Appel said the Iowa court in effect had chosen to follow a federal approach it didn’t need to adopt.

Justice Christopher McDonald, also dissenting, said it remains unclear if the “public use doctrine” could be applied as the plaintiffs wanted to be, but the environmental groups had standing, in his opinion.

Justice Dana Oxley joined in McDonald’s dissent, and filed her own. “While I share the majority’s doubt as to how far the plaintiffs can ride their public trust doctrine horse, expediency is not a basis for dismissing cases,” Oxley wrote. 

The environmental groups have vehemently objected to the state’s Nutrient Reduction Strategy, a package of voluntary actions landowners can take. The groups say the strategy has been ineffective.

Because of toxic algae becoming more prevalent in the Des Moines River, the other major water source for 500,000 central Iowans, Des Moines Water Works has relied more heavily on the Raccoon the past few years.

Water Works’ earlier federal lawsuit attempting to force pollution controls on upstream farms also was dismissed in 2017 but led to a more intense debate over water quality in Iowa that continues. In some cases, the debate has caused tension between agricultural and urban interests. 

The decision leaves the environmental groups searching for ways to clean up the Raccoon, which American Rivers named to its most endangered rivers list this year. The Raccoon has had consistently high levels of nitrate, which can cause cancer and other illness, and at times toxic algae.

The plaintiffs issued a joint statement which read in part: “Until further action is taken, industrial agricultural runoff will continue to pollute the river unimpeded, and Iowans’ right to clean water will remain a right without a remedy. We speak for many people across the state of Iowa when we say that we are deeply disappointed.

“We are considering all options moving forward, and absolutely believe that all Iowans have a right to clean water — and that the state has a duty to protect that right. The fight for clean water in Iowa is far from over,” the groups wrote.

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Perry Beeman
Perry Beeman

Senior reporter Perry Beeman has nearly 40 years of experience in Iowa journalism and has won national awards for environmental and business writing. He has written for The Des Moines Register and the Business Record, where he also served as managing editor. He also is former editorial director of Grinnell College. He co-authored the recently published book, "The $80 Billion Gamble," which details the lottery-rigging case of Eddie Tipton.

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