Opinion: Will Iowa officials send nature’s protections down the river?

Iowans who care about water quality and land health should watch these legal developments.

Neil Hamilton
Guest columnist

Over Memorial Day weekend, many Iowans were outdoors enjoying Iowa’s natural resources. This summer, state parks, county conservation facilities, rivers, and lakes will fill with Iowans and visitors, to swim, fish, boat, and paddle. 

Unfortunately, there is a fly in the ointment of our ability to enjoy nature, a problem more Iowans are coming to understand: the continuing degradation of water quality. Iowa’s rivers, streams and lakes — public waters by law — are resources we all have the right to use and enjoy. The threats will appear in news reports of fish kills and beach closings due to contaminated water, stories illuminating the tensions in a state that finds it nearly impossible to say no to the activities creating our problems.

Iowans who care about water quality and land health should be aware of two important legal developments. First is the impending Iowa Supreme Court ruling on the Public Trust Doctrine, a historic but obscure constitutional protection of citizens’ rights to enjoy healthy, safe rivers. 

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The doctrine predates Iowa statehood and charges government officials with a trust responsibility to protect the public use of rivers.  The case before the court alleges state officials failed to protect the Raccoon River by adopting a “voluntary” only approach to water quality protection. The district court agreed to hear the case but the state appealed, arguing that how to or even whether to protect the river is a legislative issue over which courts have no say. Supreme Court justices must decide if the public trust doctrine gives a court power to determine if the state’s alleged failure is unconstitutional.

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The second issue was a citizen petition asking Iowa’s DNR director to reverse the agency decision approving an 11,000-head cattle feedlot in Clayton County near Bloody Run Creek, one of Iowa’s top trout streams, classified as an “Outstanding Iowa Water” deserving special protections. 

The petition sought reversal because the manure will be spread on lands draining to Bloody Run. Agency action on the permit saw numerous twists and turns: a large increase in the number of animals, dropping an innovative proposal to capture methane, and an unusual level of political intrigue with legislators and relatives lobbying DNR. Boiled to its essence, the claim was that a feedlot of this scale is ill suited for the location. Petitioners believe that if the state won’t stop an operation like this near one of Iowa’s few pristine streams, then no place or resource is secure from threat.

The results of these cases will send important signals about whether public officials recognize a duty to protect the natural resources belonging to all Iowans. 

Will the Supreme Court be bold and show independent leadership in articulating the Constitutional right of Iowans to expect public officials to protect our rivers? Recent changes in the court, including the untimely death of Chief Justice Mark Cady, who wrote about the need to protect Iowa’s waters, might suggest that the court will take the path of least resistance and defer to the “legislative issue” claim. 

Yet the Iowa Supreme Court has a long and rich history of articulating important constitutional rights it could have avoided on the simplistic notion that the Legislature should decide, protection of same-sex marriage being just one of the most recent and noteworthy examples.

On the second issue, it didn’t take long to get an answer. Just before the holiday weekend, DNR Director Kayla Lyon rejected the request to rule that the feedlot should not be allowed, the Cedar Rapids Gazette reported. It would have been difficult, because to accept the claim she had to concluded the feedlot threatens Bloody Run even though her agency ruled otherwise. Unfortunately, she denied the petition, claiming she was powerless to grant it. Now her critics will howl she simply bowed in fealty to the economic and political power of Iowa’s livestock sector. She took cover in rulings from her lawyers that she did not have authority to act. But undoubtedly her conclusion pleased her boss and the majority in the Legislature, who show little interest in ever saying no to Iowa’s livestock sector.

At a larger level, the decisions will reflect other important questions. Will Iowa “sacrifice” the quality of our rivers and streams and future opportunities for citizens to enjoy nature, so one operation can make a buck? Will the court forgo the historic protections the public trust doctrine guarantees citizens to enjoy using our rivers, just because the Legislature adopted an ideologically motivated “voluntary only” approach for resource protection? Stay tuned.

Neil Hamilton

Neil Hamilton is emeritus professor of law at Drake University and former director of the Agricultural Law Center.