Contentious Des Moines Water Works Litigation Comes to an End

By: Peggy Kirk Hall, Monday, March 20th, 2017

Federal court dismisses Clean Water Act lawsuit against Iowa drainage districts

A federal district court has dismissed the controversial Des Moines Water Works lawsuit that put the agricultural community on edge for the past two years.  While the decision is favorable for agriculture, it doesn’t resolve the question of whether the water utility could prove that nitrates draining from farm fields are harming the utility’s water sources.  The court’s dismissal prevents Des Moines Water Works from further asserting such claims.

The lawsuit by the Des Moines Water Works (DMWW) utility sued irrigation districts in three Iowa counties for allowing discharges of nitrates through drainage infrastructure and into the waterways from which the utility drew its water.  In addition to claiming that the discharges violate the federal Clean Water Act’s permitting requirements, DMWW also asserted nuisance, trespassing, negligence, takings without compensation, and due process and equal protection claims under Iowa law.   The utility sought monetary damages for the cost of removing nitrates from its water as well as an injunction ordering the drainage districts to stop the discharges with proper permits.

The federal district court first certified several questions of state law to the Iowa Supreme Court to clarify whether Iowa law provided immunity to the drainage districts for DMWW’s claims.   On January 27, 2017, the Iowa Supreme Court responded in the positive, explaining that Iowa drainage districts had been immune from damages and injunctive relief claims for over a century because drainage districts “have a limited, targeted role—to facilitate the drainage of farmland in order to make it more productive.”  The Iowa court also clarified that Iowa’s Constitution did not provide a basis for DMWW’s constitutional arguments.

Turning to the party’s claims in light of the Iowa Supreme Court’s ruling, the federal district court focused on the drainage district’s motion to dismiss DMWW’s claims based on the doctrine of redressability, which requires a showing that the alleged injury is likely to be redressed by a favorable decision.  The doctrine of redressability concludes that a plaintiff cannot have standing to sue and therefore cannot proceed in a case if the defendant doesn’t have the power to redress or remedy the injury even if the court granted the requested relief.

The drainage districts argued that they could not redress DMWW’s Clean Water Act claims because the districts had no power to regulate the nitrates flowing through the drainage systems.  The court agreed, stating that “DMWW seeks injunctive relief and the assessment of civil penalties against the drainage districts arising from alleged duties and powers that the districts simply do not possess under Iowa law.  DMWW may well have suffered an injury, but the drainage districts lack the ability to redress that injury.”

The federal district court also dismissed DMWW’s remaining claims against the drainage districts.  DMWW argued that the immunity given the drainage districts as described by the Iowa Supreme Court prevented DMWW’s remaining claims and thus violated the U.S. Constitution’s Equal Protection, Due Process, and Takings Clauses.  The federal district court found these contentions to be “entirely devoid of merit” and dismissed the state law claims of nuisance, trespassing, negligence, takings, due process and equal protection.  Because none of the counts against the drainage districts survived the court’s scrutiny, the court dismissed and closed the case.

What does the decision mean for agriculture?

The DMWW case was a futile but somewhat inventive attempt to allocate liability for nitrate pollution to the agricultural community.  “Unregulated agricultural discharges into Iowa’s rivers, lakes and streams continue to increase costs to our customers and damage Iowa’s water quality and environment,” said DMWW’s CEO Bill Stowe upon filing the lawsuit.  A public poll by the Des Moines Register soon after Stowe brought the DMWW lawsuit showed that 42% of the respondents agreed with him in believing that farmers should pay for nitrate removal from DMWW’s waters, while 32% thought those who lived in Des Moines should pay to remove the nitrates.

If the goal is to force agriculture to reduce nutrient run off or pay for the cost of removing nutrients from waterways, the DMWW case tells us that suing those who oversee agricultural drainage infrastructure projects is not the proper mechanism for accomplishing that goal.  So will the next strategy be to sue the farmers who use the nutrients and the drainage infrastructure?

One challenge in suing farmers for nutrient runoff, and the issue that was not addressed in DMWW, is whether nutrient runoff from farm fields carried through drainage systems constitutes a “point source” that requires regulation under the Clean Water Act, or whether nutrient runoff fits within the agricultural exemption under the Clean Water Act.  That law defines a “point source” as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged,” but states that point sources do not include “agricultural storm water discharges and return flows from irrigated agriculture.”  What we still don’t know after two years of DMWW litigation is whether a court would put the transport of agricultural nutrients through drainage systems in the point source definition or would consider it an agricultural exemption from the point source definition.

A second challenge in an attempt to bring agricultural nutrients under the Clean Water Act is the burden of proof upon the plaintiff to prove the actual origin of a downstream nutrient—who applied the nutrient that ended up downstream?  DMWW sought to minimize this challenge by suing the drainage districts that oversee the entire region.   But had the case proceeded, DMWW still would have had to trace the nutrients to the region, a difficult task.

The agricultural community expects that its voluntary efforts to reduce nitrate and phosphorus runoff from farm fields will positively impact water quality and stem the possibility of more litigation like the DMWW case.   A multitude of voluntary efforts are underway, such as Iowa’s Nutrient Reduction Strategy and the flourish of cover crops in the Western Lake Erie Basin.  Ohio has also added a regulatory approach that requires farmers to engage in fertilizer application training.   Let’s hope these initiatives will reduce nutrient impacts before another party is willing to point its finger at agriculture and pursue a lawsuit like DMWW.

Read the federal court’s decision in DMWW at http://aglaw.osu.edu/sites/aglaw/files/site-library/DMWW.pdf:

A previous post on DMWW is available at: http://aglaw.osu.edu/blog/thu-02162017-443pm/des-moines-water-works-lawsuit-what%E2%80%99s-happened-what%E2%80%99s-next

Ohio Senate to Consider “Purple Paint Law” for Trespassing

The Senate Judiciary today heard testimony in support of a proposed change to Ohio’s criminal trespass laws.  The “purple paint law” proposed by Sen. Bill Coley (R-Liberty Twp.) allows landowners to use purple paint to alert potential trespassers of property boundary lines.  The purple paint would serve the same purpose as a “No Trespassing” sign by indicating that a person does not have permission to enter the property.

“It is often difficult for landowners, particularly owners who have large pieces of real estate, to maintain and replace their “No Trespassing” signs on a regular basis,” states Rep. Coley.  “This legislation amends Ohio’s criminal trespass law to allow purple paint to be a warning sign for trespassers.”

Ohio’s criminal trespass law establishes misdemeanor penalties for persons who knowingly or recklessly enter or remain on land of another without authorization from the landowner.  The law allows a landowner to notify a potential intruder that access is prohibited in several ways:  by actual communication, by fencing designed to restrict access, or by signage or posting in a manner reasonably calculated to come to the attention of potential intruders.  The proposed bill would clarify that “posting in a manner reasonably calculated to come to the attention of potential intruders” would include placing identifying purple paint marks on trees or posts around the property.  The purple marks would have to be readily visible vertical lines at least eight inches long, with the bottom of the mark being at least three feet but no more than five feet from the base of the tree or post and no more than 25 yards from the next paint mark.

Today’s committee hearing is the first for the bill.  If the legislation eventually passes through the House and Senate, Ohio would join a dozen other states around the country in allowing purple paint to mark property boundary lines for trespassing purposes. Similar laws exist in West Virginia, Kansas, Arizona, Montana, Arkansas, Idaho, Florida, Maine, North Carolina, Missouri, Illinois and Texas.

Follow the proposed purple paint law, SB 76 at:

https://www.legislature.ohio.gov/legislation/legislation-summary?id=GA132-SB-76

 

 

 

Regulating Livestock Welfare Remains an Issue Around the Country

Written by:  Ellen Essman, Law Fellow, OSU Agricultural & Resource Law Program

Livestock producers in Ohio have been subject to standards for the care of livestock since 2011 but animal welfare is still a topic of debate around the country. Most recently, attention turned to the care of livestock raised under the National Organic Program and animals raised in confinement in Massachusetts.   In this post, we examine the proposed federal organic standards and a livestock care ballot initiative passed in Massachusetts.  The discussion provides an opportunity to take a look at the status of Ohio’s livestock care standards.

Federal Organic Standards

On January 19, 2017, the USDA’s Agricultural Marketing Service (AMS) promulgated a final rule for the National Organic Program (NOP).  The rule concerns practices for organic livestock and poultry.  Namely, the rule “clarifies how producers and handlers participating in the NOP must treat livestock and poultry to ensure their wellbeing.”  These treatment standards are applicable at numerous times throughout the lives of livestock, including when the animals are transported or slaughtered.  Additionally, the rule spells out the amount and type of indoor and outdoor space organic poultry must have under NOP.  The rule also describes the timing and methods for physically altering livestock and poultry under NOP.  The rule allows “[p]hysical alterations…only…for an animal’s welfare, identification, or safety.”  For example, the rule limits the use of teeth clipping and tail docking in pigs, and prohibits the de-beaking of chickens or face branding of cattle.  Many other banned and limited alterations are spelled out in the rule, as well as provisions that require active monitoring of animal health and treatment of injuries, sicknesses, and diseases.  The rule was originally supposed to become effective on March 20, 2017.  The Trump Administration, however, has since instituted a regulatory freeze in order to review recently made regulations.   In response to the regulatory freeze, AMS pushed back the effective date to May 19, 2017.  Barring any decisions by the new administration to the contrary, the rule should become effective on that date.  More information concerning this final rule is available here.

Massachusetts voters approve livestock confinement ballot initiative

Some states have taken it upon themselves to address various aspects of animal welfare.  This past Election Day, Massachusetts passed Question 3, a ballot initiative concerning confinement of livestock.  Question 3, also called the Prevention of Farm Animal Cruelty Act, applies to farm owners and operators who raise breeding pigs, veal calves, and egg-laying hens within the state, and also to business owners and operators who sell products from such livestock within the state.  When the Act becomes effective on January 1, 2022, this will mean that any farmers or businesses selling their pork, veal, or eggs in Massachusetts, even if they are not physically located within the state, would have to comply with the state’s confinement rules.  The law prohibits the aforementioned livestock being “confined in a cruel manner,” meaning that the animals cannot be “confined so as to prevent [them] from lying down, standing up, fully extending [their] limbs, or turning around freely.”  There are certain exceptions to this rule, including during transport, at fairs, during a veterinary examination, etc.  When the Act goes into effect, violators will face a $1,000 civil fine per violation, and/or an injunction

Ohio Livestock Care Standards

As many will remember, Ohio has its own laws and regulations concerning livestock welfare.  Voters passed an amendment to the Ohio Constitution in 2009.  The amendment created the Ohio Livestock Care Standards Board, which was tasked with creating the actual “care standards” for livestock animals in the state.  The first of these “livestock care standards,” or rules, became effective on September 29, 2011.  Standards exist for different types of livestock and cover everything from acceptable euthanasia practices for each species, to the provision of food and water, to acceptable methods of transportation.  The board continues to meet regularly to review the care standards.

The regulations on livestock care include an investigation process initiated by complaints on potential violations of the standards.  Since the standards became effective, the Ohio Department of Agriculture has received a number of complaints and works with operators to bring them into compliance if the agency finds a violation. According to Farm and Dairy, there were 51 such investigations in 2012, 29 in 2013, and 23 in 2014.  In 2015, there were 33 investigations—23 of which resulted in no violations of the standards.   Producers can learn more about the livestock care standards at http://www.agri.ohio.gov/LivestockCareStandards.

Pipelines, Property, and You: What Ohio Property Owners Impacted by Pipeline Projects Should Know

Written by:  Chris Hogan, Law Fellow, OSU Agricultural & Resource Law Program

Several major pipeline projects, which plan to crisscross the state, are in the final stages of preparation. As part of the planning process for a project, pipeline builders plot the path that the pipeline will travel across the state. That path inevitably crosses private landowners’ property. Some landowners may feel overwhelmed trying to understand the rights of private pipeline companies to cross private property in Ohio. The frequently asked questions discussed below should help answer some of the common questions about pipeline projects in Ohio.

Can a pipeline company come on to my property to conduct a survey?

Yes. Prior to building a pipeline, pipeline companies must select a route where the pipeline is to be constructed. A pipeline project usually crosses private property along a proposed route. When a pipeline must cross private property along the project’s route, the pipeline company will ask the landowner for an easement that allows for pipeline construction on the property. However, even before signing an easement, a survey of the property may be necessary to determine the feasibility of constructing a pipeline on the property. Therefore, a pipeline company may need to enter a landowner’s private property to conduct a survey.

In Ohio, the law allows private companies that are organized “for transporting natural or artificial gas, petroleum, coal or its derivatives . . . through tubing, pipes or conduits” to enter upon private land to examine or survey for pipelines. This means that a pipeline company organized for these specific purposes does have the right in Ohio to enter onto a landowner’s property to conduct a private survey for the purpose of pipeline construction.

A pipeline company is telling me that they might use Eminent Domain to acquire my property. Is that legal?

Most likely, yes. A pipeline company may negotiate an easement with landowners which compensates landowners in exchange for the right to build a pipeline. However, landowners may not want to give a pipeline company the right to cross their property. In that scenario, pipeline companies have the option of crossing a landowner’s property by using eminent domain. Eminent domain is the taking of private property for public purposes with compensation.

In Ohio, the same law that allows for companies that are organized “for transporting natural or artificial gas, petroleum, coal or its derivatives . . . through tubing, pipes or conduits” to enter upon private land for survey also allows those same companies to use eminent domain to take private land. The law states that a company organized for the above purpose “may appropriate so much of such land, or any right or interest [to the land], as is deemed necessary for the laying down or building of pipes . . .” This suggests that pipeline companies have the power of eminent domain in Ohio.

Some argue that the law only grants eminent domain rights for transporting gas, and does not extend the right of eminent domain for the transport of gas derivatives such as ethane. While there is not strong legal support for this argument, it is under litigation in Ohio courts.

To use eminent domain, the pipeline company must prove that the landowner and the company were not able to reach an agreement about granting a pipeline easement and that the taking of the pipeline easement is “necessary.” A pipeline company must establish that the taking of property will serve a “public use.” Ohio courts have noted that the term public use is flexible. Accordingly, Ohio courts have held that private pipelines are a public use if those pipelines provide an economic benefit to Ohio. After establishing necessity and public use, the pipeline company must follow the procedures for eminent domain in Ohio Revised Code Chapter 163.

For an interstate pipeline that runs between Ohio and another state, federal law could allow a company to use eminent domain to obtain land from unwilling landowners. Federal law states that a company may acquire property rights for a gas pipeline if the company has obtained a Certificate of Public Convenience and Necessity from the Federal Energy Regulatory Commission and the company and landowner have not been able to agree on compensation for the pipeline easement. See 15 USC §717(F).

What about the pipeline cases that are in court right now, do those affect my rights?

Ohio landowners have probably heard about several high-profile pipeline projects that are planning to cut across the state. Some landowners have challenged the construction of these pipeline projects on their property.  These landowners are challenging the right of the pipeline companies to use eminent domain to acquire an easement on their property. Two pipeline projects in Ohio are of particular interest: Kinder Morgan’s Utopia Project and Rover Pipeline LLC.

A court in Wood County, Ohio decided in 2016 that Kinder Morgan’s Utopia Project, which plans to run across Ohio and into Canada, did not have eminent domain authority. The court concluded that the pipeline did not “serve the public of the State of Ohio or any public in the United States.” The court based its conclusion on the fact that Utopia did not provide a benefit to Ohio. However, Kinder Morgan quickly appealed that case to Ohio’s Sixth Circuit Court of Appeals. Therefore, this opinion is on hold while a higher court decides whether it agrees with the lower court’s interpretation of the eminent domain law.

A second high-profile pipeline case involves the right of Rover Pipeline LLC to use eminent domain for an interstate pipeline project. The Federal Energy Regulatory Commission issued this pipeline project a certificate of public convenience and necessity on February 2, 2017. As a result, Rover Pipeline LLC is moving forward with construction on landowners’ property, because a federal court found that the pipeline company has eminent domain authority.

So how do these court cases affect landowners? First, landowners should be aware that other pipeline projects in Ohio likely have eminent domain authority, if they meet the requirements for eminent domain described by Ohio law. Second, landowners should be aware that that the pipeline case that began in Wood County and is currently being appealed is still pending. It is important to note that this case is reviewing the Utopia Project’s right to use eminent domain in Ohio. Therefore, this does not mean that all pipeline companies in Ohio no longer have the right to use eminent domain to acquire private property in Ohio. Instead, this case will determine the fate of that particular pipeline project and whether or not that project has the right to use eminent domain to acquire an easement. In the meantime, pipeline companies continue to have the right to use eminent domain in Ohio.

More information on pipelines in Ohio and resources for landowners considering signing an easement is available here.

Farmers Have One Month to Decide Whether to Stay in Syngenta Litigation

by: Peggy Kirk Hall
Asst. Professor and Field Specialist, Agricultural & Resource Law
College of Food, Agricultural & Environmental Sciences Department of Extension

Farmers are receiving a lot of attention from law firms these days, from video mailers to offers of free consultations, dinners, hats and more.  The purpose of these marketing efforts is to entice farmers away from participating in the current class action lawsuit against Syngenta.  Law firms want farmers to exclude themselves from the class action litigation and participate in individual lawsuits their firms would bring against Syngenta.  With a deadline of April 1 looming, farmers must decide whether to remain in or step away from the class action lawsuit.

The class action lawsuit, known as “In re Syngenta AG MIR162 Corn Litigation,” is pending before the U.S. District Court in Kansas.  It is one of two major lawsuits regarding corn rejected by China in 2013 because China had not yet approved Syngenta’s Duracade and Viptera brands of genetically-modified corn.  The lawsuit consolidated hundreds of similar federal court cases that all claimed that Syngenta should be liable for the drop in corn prices that followed China’s rejections because Syngenta stated that it had obtained all necessary regulatory approvals for Duracade and Viptera, but instead released the seed before receiving China’s approval.

Class Certification

Last September, the court certified the litigation as a class action lawsuit, which allows the case to commence on behalf of all class members.  Any farmer that fits within the class definitions is automatically included in the lawsuit and does not have to pursue individual litigation against Syngenta.  The court established a nationwide class of “producers,” defined as any person or entity listed as a producer on an FSA-578 form filed with the USDA who priced corn for sale after November 18, 2013 and who did not purchase Viptera or Duracade corn seed (farmers who used Syngenta’s seed have different legal claims).  The nationwide class is for producers bringing claims under federal law.  The court also certified eight state classes for producers bringing claims under state laws, including Ohio.  Syngenta appealed the class certification, but the Tenth District Court of Appeals denied the appeal.

Ohio farmers who fit the definition of “producers” are now automatically members of both the nationwide and Ohio classes.  This means that every Ohio producer can receive a share of any award or settlement that results from the litigation, with required documentation.  However, Ohio producers may choose to exclude themselves from or “opt out” of their classes and bring their own individual actions against Syngenta.  The district court required attorneys for the class action suit to notify all potential producers of the lawsuit and of a producer’s right to be excluded from the litigation.   A producer must send an exclusion request by April 1, 2017, following the process for exclusion stated in the court’s order, available here.

Pros and Cons of Staying in the Class

A major benefit of remaining in the class action lawsuit is convenience.  Class members in the lawsuit have no responsibility for the proceedings, which falls upon the attorneys who represent the entire class.  However, convenience comes at the cost of deferring decision making authority and losing a share of the award or settlement to court-ordered attorney fees, although class members may file objections to such decisions.  Exclusion from the class gives producers freedom to pursue their own actions, which will likely lead to a stronger role in decision making and the ability to negotiate attorney fees.  Exclusion also allows a farmer who may not agree with the litigation on principal to dissociate from the lawsuit.

What’s Next?

The court has scheduled “bellwether” cases in the lawsuit, which will go to trial in June.  Bellwether cases are chosen to be representative of the class.  Allowing these cases to go to trial gives an indication of how the litigation will play out—the strength of each side, how juries react and how the law applies to the situation.   Upon completion of the bellwether cases, both sides should be better able to decide whether to settle the lawsuit or continue with litigation.

The U.S. District Court’s website for the Syngenta class action lawsuit is http://www.ksd.uscourts.gov/syngenta-ag-mir162-corn-litigation/

 

 

 

Northeast Ohio Small Farm Conference to be held on March 25 in Massillon

by Rory Lewandowski, Wayne County Extension Educator

The 2017 Northeast Ohio “Living Your Small Farm Dream” small farm conference will be held on Saturday, March 25 at the RG Drage Career Center in Massillon located at 2800 Richville Dr. SW Massillon, 44646.  The conference is a program of the OSU Extension Small Farm Program and will provide farm owners and landowners with the opportunity to learn more about skills useful on a small farm, how to make their small farms work better, expand their operations, or gather ideas on how to utilize rural acreage.

Participants will choose from more than 25 different sessions offered over 4 breakout sessions during the day.  General topic tracks include horticulture production, livestock and aquaculture, small farm management, natural resources, marketing and selling.  Presenters include OSU Extension specialists and educators as well as USDA agency personnel, and area farmer entrepreneurs.  The trade show represents industries, businesses, services and organizations that provide products or services utilized on a small farm or rural property.

A sampling of some of the topics that will be covered at the conference includes:

  • Chainsaw Safety, Maintenance and Operation
  • Raising sheep and goats
  • Grass-fed Beef Production
  • Fruit tree pruning
  • Hobby Maple Syrup Production
  • Fruit Tree and Small Fruit Disease Management and Prevention
  • Micro Greens Production
  • Vegetable Production and Season Extension with Tunnels
  • Using and calibrating hand held sprayers on the farm
  • Growing Shitake mushrooms
  • Selling eggs, poultry, produce and cottage foods
  • Marketing Meat Goats
  • Renting and Leasing Farmland
  • Renewable Energy
  • Small Farm Tax Issues
  • Aquaculture Opportunities
  • Vegetable Disease Diagnostics

The Chainsaw Safety, Maintenance and Operation topic as well as the Vegetable Production and Season Extension with Tunnels are both super sessions that extend over two break-out session time periods.  The vegetable production and season extension with tunnels session will actually start at the OARDC high tunnels in Wooster and then move to the RG Drage Center for the in-door portion of the session.  Participants may elect to do only the Wooster part, only the RG Drage Center part or both parts of this topic.

The conference begins with registration at 8:00 am, and an opening general session at 9:00 am.  The conference concludes at approximately 3:45 pm following the final breakout session.  Registration cost is $60 per person, which includes lunch and morning refreshments.  The registration deadline is March 17.  For those who are interested in attending both the Women in Agriculture conference (http://agnr.osu.edu/events/east-ohio-women-agriculture-conference-0) at the same location on March 24 plus the small farm conference on March 25 there is a discounted registration fee of $100 to attend both conferences.  Student discounts are also available.

A conference brochure and registration form along with descriptions of all the breakout sessions as well as on-line registration is available on the OSU Extension Small Farm Program web site at: http://agnr.osu.edu/small-farm-programs .  Questions can also be directed to the Wayne County Extension office at 330-264-8722.

 

The Des Moines Water Works Lawsuit: What’s Happened, What’s Next?

by: Ellen Essman, Law Fellow, OSU Agricultural & Resource Law Program

The Board of Trustees of the Des Moines Water Works (DMWW) brought a lawsuit against thirteen Iowa drainage districts.  DMWW is the biggest water provider in Iowa, serving the largest city, Des Moines, and the surrounding area. Drainage districts were first created in Iowa in the 1800s to drain wetlands and allow for agriculture in those areas.  In Iowa, the counties are in charge of drainage districts.  Individual landowners can tile their land so that it drains water to the ditches, pipes, etc. that make up the counties’ drainage districts.  Eventually, that water ends up in Iowa’s rivers.  The thirteen drainage districts being sued by DMWW are located in the Raccoon River watershed in Buena Vista, Sac, and Calhoun counties.  DMWW is located downstream from the drainage districts in question.

Background of the Lawsuit

On March 16, 2015, the Board of Trustees for the DMWW filed a complaint against the thirteen drainage districts in the U.S. District Court for the Northern District of Iowa, Western Division.  DMWW alleged that the drainage districts did not act in accordance with the federal Clean Water Act (CWA) and provisions of the Iowa Code because they did not secure the applicable permits to discharge nitrates into the Raccoon River.  In order to serve its customers, DMWW uses the Raccoon River as part of its water supply.

DMWW has to meet maximum contaminant levels prescribed under the federal Safe Drinking Water Act.  Nitrate is a contaminant with a maximum allowable level of 10 mg/L.  In its complaint, DMWW cited record levels of nitrate in water from the Raccoon River watershed in recent years.  DMWW alleged that the nitrate problem is exacerbated by the “artificial subsurface drainage system infrastructure…created, managed, maintained, owned and operated by” the thirteen drainage districts.  DMWW alleged that the drainage district infrastructure—“pipes, ditches, and other conduits”—are point sources.  DMWW points to agriculture—row crops, livestock production, and spreading of manure, as a major source of nitrate pollution.

DMWW also cited a number of costs associated with dealing with nitrates, including the construction of facilities that remove nitrates, the operation of those facilities, and the cost associated with acquiring permits to discharge the removed waste.  In their complaint, they generally asked the court to make the drainage districts reimburse them for their cleanup costs, and to make the drainage districts stop discharging pollutants without permits.

All together, DMWW filed ten counts against the drainage districts.  In addition to their claim that the drainage districts had violated the CWA and similarly, Iowa’s Chapter 455B, DMWW also alleged that the continued nitrate pollution violated a number of other state and federal laws.  DMWW maintained that the pollution was a public, statutory, and private nuisance, trespassing, negligence, a taking without just compensation, and a violation of due process and equal protection under the U.S. and Iowa Constitutions.  Finally, DMWW sought injunctive relief from the court to enjoin the drainage districts to lessen the amount of nitrates in the water.  In many of the counts, DMWW asked the court for damages to reimburse them for their costs of dealing with the pollution.

On May 22, 2015, the defendants, the thirteen drainage districts, filed their amended answer with the court.   On January 11, 2016, the district court filed an order certifying questions to the Iowa Supreme Court.  In other words, the district court judge submitted four questions of state law to the Iowa Supreme Court to be answered before commencing the federal trial.  The idea behind this move was that the highest court in Iowa would be better equipped to answer questions of state law than the district court.

Iowa Supreme Court Decision

The Iowa Supreme Court filed its opinion containing the answers to the four state law questions on January 27, 2017.  All of the questions were decided in favor of the drainage districts.  The court answered two questions related to whether the drainage districts had unqualified immunity (complete protection) from the money damages and equitable remedies (actions ordered by the court to be taken or avoided in order to make amends for the harm caused) requested by DMWW.  Both were answered in the affirmative—the court said that Iowa legislation and court decisions have, throughout history, given drainage districts immunity.  Iowa law has long found the service drainage districts provide—draining swampy land so that it could be farmed—to be of great value to the citizens of the state.  To that end, the law has been “liberally construed” to promote the actions of drainage districts.  What is more, judicial precedent in the state has repeatedly found that drainage districts are not entities that can be sued for money damages because they are not corporations, and they have such a limited purpose—to drain land and provide upkeep for that drainage.  The law has further prohibited receiving injunctive relief  (obtaining a court order to require an action to be taken or stopped), from drainage districts.  Instead, the only remedy available to those “claim[ing] that a drainage district is violating a duty imposed by an Iowa statute” is mandamus.  Mandamus allows the court to compel a party to carry out actions that are required by the law.  In this case, those requirements would be draining land and the upkeep of the drainage system.

The second two questions considered by the court dealt with the Iowa Constitution.  The court determined whether or not DMWW could claim the constitutional protections of due process, equal protection, and takings.  They also answered whether DMWW’s property interest in the water could even be “the subject of a claim under…[the] takings clause.”  The court answered “no” to both questions, and therefore against DMWW.  Their reasoning was that both DMWW and the drainage districts are subdivisions of state government, and based on numerous decisions in Iowa courts, “one subdivision of state government cannot sue another…under these clauses.”  Additionally, the court found that “political subdivisions, as creatures of statute, cannot sue to challenge the constitutionality of state statutes.”  Consequently, they reasoned that the pollution of the water and the resulting need to remove that pollution did “not amount to a constitutional violation” under Iowa law.  The court also found that since the water in question was not private property, the takings claim was not valid.  A takings claim only applies to when the government takes private property.  What is more, the court added that regardless of its status as a public or private body, DMWW was not actually deprived of any property—they still had the ability to use the water.  Therefore, the Iowa Supreme Court answered all four state law questions in the drainage districts’ favor, and against DMWW.

What’s next?

The Iowa Supreme Court found that the questions of state law favored the drainage districts, but that is not necessarily the end of this lawsuit.  Now that the questions of state law are answered, the U.S. District Court for the Northern District of Iowa, Western Division, can decide the questions of federal law.  If any of the numerous motions for summary judgment are not granted to the drainage districts, a trial to decide the remaining questions is set for June 26, 2017.  The questions left for the district court to decide include a number of U.S. Constitutional issues.

One of these issues is whether the drainage districts’ discharge of nitrates into the water constitutes a “taking” of DMWW’s private property for a public use under the Fifth and Fourteenth Amendments.   Another issue is whether the drainage districts’ state-given immunity infringes upon DMWW’s constitutional rights of due process, equal protection, and just compensation.  An important federal law question that also remains to be decided is whether the drainage districts are “point sources” that require a permit to discharge pollutants under the CWA.

How will the outcome affect other states?

Either outcome in this lawsuit will have implications for the rest of the country.  For example, if the district court sides with DMWW on all of the questions, it could open the floodgates to potential lawsuits against drainage districts and other similar entities around the country for polluting water.  Municipal and other users of the water could assert an infringement of their constitutional rights, including taking without just compensation.  Furthermore, if drainage districts are found to be “point sources,” it could mean greater costs of permitting and cleanup for drainage districts and other state drainage entities.  Those costs and additional regulations could be passed onto farmers within the watershed.  As a result, farmers and water suppliers around the country will closely follow the district court’s decisions on the remaining questions in the case.

All of the court documents and decisions concerning this lawsuit, as well as additional articles and blog posts on the topic can be found here.  Additional reading on the subject from the Des Moines Register can be found here and here.

 

Law Fellows Join OSU’s Agricultural & Resource Law Program

OSU Extension’s Agricultural & Resource Law Program welcomes Ellen Essman and Chris Hogan as the program’s first Law Fellows.  The new positions are the result of OSU’s partnership in the Agricultural & Food Law Consortium, a multi-institutional collaboration designed to expand the delivery of timely and objective agricultural and food law research and information to the nation’s agricultural community at local, state, regional, and national levels.

Law Fellow Ellen Essman is a 2014 graduate of Drake University Law School, where she received a Juris Doctor with a certificate in Food and Agricultural Law.  She is also a 2011 graduate of The Ohio State University, having earned her Bachelor of Arts degree in Political Science with a minor in Natural Resources Management.  Ellen grew up on a farm in Pickaway County, Ohio and was very involved in 4-H and FFA as a student at Westfall Local Schools.

Ellen’s legal research projects will include a comparative analysis of state approaches to nutrient management regulation and legal barriers to entry in direct marketing of foods.  Ellen will also be responsible for general research and outreach on food law, environmental law and policy and transportation laws for agriculture.

Law Fellow Chris Hogan is a recent graduate of West Virginia University College of Law, where he received his Juris Doctor in 2016.  An Ohio native, Chris earned his B.A.in History with a minor in Agribusiness from The Ohio State University in 2012.  While an undergraduate student, Chris coordinated a shale gas landowner education grant for the Agricultural & Resource Law Program.  The son of OSU Extension Educators, Chris graduated from Carrollton High School and gained a strong interest in agriculture through 4-H and time working on Christmas tree farms in eastern Ohio.

Chris will be responsible for several legal research projects, including an examination of Limited Liability Company (LLC) statutes across the nation, the use of LLCs for agriculture and a comparative analysis of property tax assessment laws for agricultural land in the Midwestern farm states.  Chris will also work on outreach projects in landowner liability, property law, business organizations, taxation, and estate planning.

For more information about the Agricultural & Food Law Consortium, visit http://nationalaglawcenter.org/consortium/.   Information from OSU’s Agricultural & Resource Law Program is available at http://aglaw.osu.edu.

What the New Drone Rule Means for Agriculture – Part 2: Rules for Operating Drones

By: Peggy Hall, Assistant Professor and Field Specialist, Agricultural & Resource Law

The FAA’s long awaited rule for drones or “small unmanned aircraft systems” (sUAS) weighing less than 55 pounds will be effective on August 29, 2016. Our previous post explained the rule’s process for obtaining certification as a Remote Pilot in Command (Remote PIC) that will apply to those who operate a sUAS for commercial uses or incidental to a business, such as for farming purposes.  In this post, we focus on the operational requirements and limitations in the new sUAS rule.   Farmers who want to use a drone in the farm operation need to understand and comply with these provisions.

Pre-flight requirements

    • Registration. A person may not operate a sUAS over 0.55 pounds unless it is registered with FAA. An online registration is available at https://registermyuas.faa.gov/
    • Pre-flight inspection. The Remote PIC must inspect the sUAS prior to a flight to ensure that it is in a condition for safe operation, which includes inspecting for equipment damage or malfunctions. The FAA advises operators to conduct the pre-flight inspection in accordance with the sUAS manufacturer’s inspection procedures and provides a list of the elements to address in a pre-flight inspection in section 7.3.4 of this guideline.
    • Preflight information. The Remote PIC must make sure that all persons directly involved in the flight are informed about roles and responsibilities, operating conditions, emergency and contingency procedures and potential hazards.
    • Flight operators. Only a Remote PIC may fly the sUAS, or someone under the direct supervision of a Remote PIC if the PIC is easily able to gain control of the sUAS. A Remote PIC may only operate or observe one drone at a time.
    • Airspace. Flights of sUAS are allowed in Class G airspace, the airspace that is not controlled by Air Traffic Control (ATC) communications, which encompasses a majority of agricultural lands. A flight in Class, B, C, D and E controlled airspace requires permission from the appropriate ATC prior to flight. The FAA will establish a web portal that will allow an operator to apply for ATC permission online.
  • Waiver process. The operator may apply for a “certificate of waiver” that allows deviation from some of the operational requirements if the FAA determines that the flight would be safe. The operator must receive the waiver prior to the flight, so should file the request about 90 days in advance of the proposed flight.   The FAA will post the waiver applications, which are not yet available, at http://www.faa.gov/uas/.

 

Operating rules during flight:

  • Weather visibility. There must be a minimum visibility of three miles from the sUAS control station.
  • Visual line of sight. The Remote PIC or the authorized person operating the drone must maintain a constant visual line of sight with the sUAS, without the aid of a device other than glasses or contact lenses.  The operator may use a visual observer to help maintain the line of sight, but using an observer cannot extend the line of sight.
  • See and avoid. The operator must yield the right of way and avoid collision with another use of the national air space.
  • Height. The sUAS may not fly more than 400 feet above ground level.
  • Time of day. Flights may occur only during daylight hours or no more than 30 minutes before official sunrise or after official sunset if the sUAS has anti-collision lighting.
  • Speed. The sUAS speed may not exceed 100 miles per hour.
  • People. A flight may not occur over persons who are not involved in the flight or are not under a covered structure or inside a covered stationary vehicle.
  • Base of operation. Operation of the sUAs may not occur from a moving aircraft. Operation from a moving land or water vehicle is permissible if in a sparsely populated area and not transporting property for hire.
  • External load and towing. A sUAS may carry or tow an external load if the load is securely attached, does not affect control of the aircraft, is not a hazardous substance and the combined weight of the sUAS and its load does not exceed the 55 pound weight limit.
  • Aerial applications. Use of a sUAS for dispensing herbicides, pesticides and similar substances must also comply with the “agricultural aircraft operation” regulations in 14 CFR 137.3.
  • Dropping objects.   An operator may not create an undue hazard that poses a risk of injury to persons or property when dropping an object from a sUAS.
  • Careless or reckless operation. A person must not operate a sUAS carelessly or recklessly. The FAA provides the example of failing to consider weather conditions when flying near structures, trees or rolling terrain in a densely populated area as an example of careless or reckless operation.

After-flight requirements

  • Production of records and vehicle. If requested by FAA, a person must make the sUAS or its records available for testing or inspection.
  • Accident reporting. Within 10 days of occurrence, a Remote PIC must report to the FAA a flight operation that results in loss of consciousness or serious injury to a person or creates property damage of at least $500. Reporting can occur online at www.faa.gov/uas or by telephone to the appropriate FAA field office or regional center.

Penalties for noncompliance with the rule

The FAA will have enforcement authority over the new regulations. Depending upon the type and violation, civil penalties could be up to $27,500.  An operator could also be subject to criminal penalties for violations that are reckless, destroy property or threaten public safety; those penalties could be up to $250,000.

Learn more about the sUAS rule at http://www.faa.gov/uas/

What the New Drone Rule Means for Agriculture

By: Peggy Hall, Assistant Professor and Field Specialist, Agricultural & Resource Law

Part 1: Operators Must Obtain FAA Certification

The Federal Aviation Administration (FAA) yesterday filed its final rule in the Federal Register for the Operation and Certification of Small Unmanned Aircraft Systems (sUAS).  The new rule allows for the non-recreational operation of sUAS less than 55 pounds in the national airspace.  Farmers and professionals planning to use UAS or “drones” for agricultural purposes must comply with the rule beginning on August 29, 2016.  An important first step toward compliance is to obtain the proper license to operate a sUAS, referred to as “remote pilot certification” by the FAA.  To read more click on What the new Drone rule means for Agriculture