IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA WESTERN DIVISION BOARD OF WATER WORKS TRUSTEES OF THE CITY OF DES MOINES, IOWA, Plaintiff, No. C15-4020-LTS vs. MEMORANDUM OPINION AND ORDER ON DEFENDANTS’ SAC COUNTY BOARD OF MOTIONS FOR SUMMARY SUPERVISORS AS TRUSTEES OF JUDGMENT DRAINAGE DISTRICTS 32, 42, 65, 79, 81, 83, 86, et al., Defendants. ____________________ I. INTRODUCTION This case is before me on motions (Doc. Nos. 34, 60) for summary judgment filed by all defendants. The Iowa Supreme Court has answered this court’s certified questions concerning Iowa law1 and the parties have filed a joint status report (Doc. No. 81). The motions are fully submitted and ready for decision. For the reasons set forth herein, the defendants’ motions will be granted and this case will be dismissed in its entirety. II. PROCEDURAL HISTORY Plaintiff Board of Water Works Trustees of the City of Des Moines, Iowa, also known as the Des Moines Water Works (DMWW), commenced this action on March 16, 1 See Board of Water Works Trustees of the City of Des Moines, Iowa v. Sac Cty. Bd. of Supervisors, as Trustee of Drainage Dist. 32, 42, 65, 79, 81, 83, 86, et al., No. 16-0076, 890 N.W.2d 50 (Iowa 2017) (hereafter the Certified Questions Opinion) (filed herein as Doc. No. 82). Case 5:15-cv-04020-LTS Document 84 Filed 03/17/17 Page 1 of 20 2015, by filing a ten-count complaint (Doc. No. 2). The named defendants are the Sac County Board of Supervisors, as Trustees of Drainage Districts 32, 42, 65, 79, 81, 83, 86, the Calhoun County Board of Supervisors and the Sac County Board of Supervisors, as Joint Trustees of Drainage Districts 2 and 51, and the Buena Vista County Board of Supervisors and the Sac County Board of Supervisors, as Joint Trustees of Drainage Districts 19 and 26 and Drainage Districts 64 and 105 (collectively the defendants or the drainage districts). The complaint includes the following causes of action: Count Title I Clean Water Act [33 U.S.C. § 1365] II [Iowa Code] Chapter 455B III Public Nuisance IV Statutory Nuisance V Private Nuisance VI Trespass VII Negligence VIII Taking Without Just Compensation IX Due Process & Equal Protection X Injunctive Relief Doc. No. 2. United States District Judge Mark W. Bennett, to whom this case was initially assigned,2 has aptly summarized this case as follows: The state of Iowa’s largest municipal water utility provider, providing drinking water to an estimated half million customers in the Des Moines area, alleges state tort claims and federal and state statutory and constitutional claims against ten upstream drainage districts and three upstream County Board of Supervisors as Trustees of the Drainage Districts. This is a case about which political subdivision of Iowa must cover the costs of complying with federal and state clean water regulations due to increased nitrate levels, beyond the maximum allowed by law, in the 2 This case was reassigned to me on February 17, 2016, upon my appointment as a United States District Judge. 2 Case 5:15-cv-04020-LTS Document 84 Filed 03/17/17 Page 2 of 20 water flowing downstream that is used by the State’s largest municipal water utility. Doc. No. 50 at 4 [footnote omitted]. On September 24, 2015, defendants filed a motion (Doc. No. 34) for summary judgment on Counts III through X. DMWW filed a resistance (Doc. No. 35) and defendants filed a reply (Doc. No. 42). Judge Bennett conducted a hearing on the motion on December 21, 2015. Before the hearing, Judge Bennett issued an order directing the parties to confer and “to determine all issues that may be appropriate for certification to the Iowa Supreme Court pursuant to Iowa Code § 684A.1 (2015).” Doc. No. 46 at 1. After the hearing, Judge Bennett certified four questions to the Iowa Supreme Court. Doc. No. 50. While those certified questions of Iowa law were pending before the Iowa Supreme Court, defendants filed a motion (Doc. No. 60) for summary judgment as to Counts I and II. DMWW filed a resistance (Doc. No. 67) and defendants filed a reply (Doc. No. 78). On January 27, 2017, the Iowa Supreme Court filed the Certified Questions Opinion. The Court answered the certified questions as follows: Question 1: As a matter of Iowa law, does the doctrine of implied immunity of drainage districts as applied in cases such as Fisher v. Dallas County, 369 N.W.2d 426 (Iowa 1985), grant drainage districts unqualified immunity from all of the damage claims set forth in the complaint (docket no. 2)? Answer: Yes. As explained below, drainage districts have a limited, targeted role—to facilitate the drainage of farmland in order to make it more productive. Accordingly, Iowa law has immunized drainage districts from damages claims for over a century. This immunity was reaffirmed unanimously by our court just over four years ago. Question 2: As a matter of Iowa law, does the doctrine of implied immunity grant drainage districts unqualified immunity from equitable remedies and claims other than mandamus? 3 Case 5:15-cv-04020-LTS Document 84 Filed 03/17/17 Page 3 of 20 Answer: Yes. Again, Iowa precedent, reaffirmed unanimously by our court just four years ago, recognizes that drainage districts are immune from injunctive relief claims other than mandamus. Question 3: As a matter of Iowa law, can the plaintiff assert protections afforded by the Iowa Constitution's inalienable rights, due process, equal protection, and takings clauses against drainage districts as alleged in the complaint? Answer: No. Although these constitutional clauses are fundamental to our freedom in Iowa, they exist to protect citizens against overreaching government. Generally, one subdivision of state government cannot sue another subdivision of state government under these clauses. And even if they could, an increased need to treat nitrates drawn from river water to meet standards for kitchen tap water would not amount to a constitutional violation. Question 4: As a matter of Iowa law, does the plaintiff have a property interest that may be the subject of a claim under the Iowa Constitution's takings clause as alleged in the complaint? Answer: No, for the reasons discussed in the answer to Question 3. Doc. No. 82 at 3-4. At my request, the parties then filed a joint status report (Doc. No. 81) setting forth their positions as to how this case should proceed in light of the Certified Questions Opinion. III. RELEVANT FACTS DMWW is a municipal water utility organized under Iowa Code Chapter 388 that provides drinking water to customers in the Des Moines area. DMWW obtains its water supply from the Raccoon and Des Moines Rivers. Defendants are various drainage districts organized under Iowa Code Chapter 468 located in upstream areas that drain into those rivers. As Judge Bennett noted in his certification order: 4 Case 5:15-cv-04020-LTS Document 84 Filed 03/17/17 Page 4 of 20 Drainage districts are a funding mechanism property owners establish to levy for drainage improvements. Fisher v. Dallas Cty., 369 N.W.2d 426, 428-29 (Iowa 1985). For a drainage district to be established, at least two land owners must petition for its creation. IOWA CODE § 468.6. “The right of a landowner to place tiles in swales or ditches to carry the water from ponds upon and onto lower lands . is necessary [ ] in order that low and swampy lands may be reclaimed, and a denial thereof would be productive of incalculable mischief.” Dorr v. Simmerson, 103 N.W. 806, 807 (1905). The affairs of drainage districts are managed by the county board of supervisors in a representative capacity. See IOWA CODE §§ 468.37, .89, .231, .232, .617. If a repair exceeds $50,000, a hearing is required to determine advisability and appeal is allowed. IOWA CODE § 468.126(1)(c). Similarly, improvements exceeding a certain amount can be stopped through a process called remonstrance. IOWA CODE § 468.126(4)(e). Doc. No. 50 at 7-8. Both DMWW and the drainage districts are political subdivisions of Iowa. See Koethe v. Johnson, 328 N.W.2d 293, 298 (Iowa 1982); State ex rel. Iowa Emp’t Sec. Comm'n v. Des Moines Cty., 149 N.W.2d 288, 291 (Iowa 1967). Under the Safe Drinking Water Act, 42 U.S.C. § 3000 et seq., DMWW is obligated to meet maximum contaminant level (MCL) standards established by the Environmental Protection Agency (EPA) in its finished water. Among the contaminants regulated are nitrates. To meet the EPA’s standards, DMWW must remove nitrates from its water supply. DMWW alleges that there has been an increased level of nitrates in the water supply caused by the drainage districts channeling of nitrate-contaminated ground water into the water supply. As a result of this increase, DMWW alleges that despite investments in infrastructure and the development of strategies to manage periodic high nitrate levels, there is a continued threat to the water supply caused by the actions of the drainage districts. DMWW alleges that the only way to adequately protect citizens at a reasonable cost is to prevent the discharge of nitrates from the drainage districts’ infrastructure. DMWW requests entry of an order compelling the drainage districts to obtain national 5 Case 5:15-cv-04020-LTS Document 84 Filed 03/17/17 Page 5 of 20 pollutant discharge elimination system (NPDES) permits and to comply with the Clean Water Act (CWA) in limiting nitrate discharges. DMWW further seeks a declaratory judgment that the drainage districts have violated both the CWA and Iowa Code Chapter 455B by failing to comply with effluent limitations prescribed by the NPDES permit system.