IN THE SUPREME COURT OF IOWA

No. 19–1644 

Submitted December 16, 2020—Filed June 18, 2021 

IOWA CITIZENS FOR COMMUNITY IMPROVEMENT and FOOD & 

WATER WATCH, 

Appellees, 

vs. 

STATE OF IOWA; DEPARTMENT OF NATURAL RESOURCES; BRUCE 

TRAUTMAN, In His Official Capacity as Acting Director of the 

Department of Natural Resources; ENVIRONMENTAL PROTECTION 

COMMISSION; MARY BOOTE, NANCY COUSER, LISA GOCHENOUR, 

REBECCA GUINN, HOWARD HILL, HAROLD HOMMES, RALPH 

LENTS, BOB SINCLAIR, and JOE RIDING, In Their Official Capacities 

as Commissioners of the Environmental Protection Commission; 

NATURAL RESOURCE COMMISSION; MARCUS BRANSTAD, RICHARD 

FRANCISCO, LAURA HOMMEL, TOM PRICKETT, PHYLLIS REIMER, 

DENNIS SCHEMMEL, and MARGO UNDERWOOD, In Their Official 

Capacities as Commissioners of the Natural Resource Commission; 

DEPARTMENT OF AGRICULTURAL AND LAND STEWARDSHIP; and

MICHAEL NAIG, In His Official Capacity as Secretary of Agriculture,

Appellants. 

Appeal from the Iowa District Court for Polk County, Robert B. 

Hanson, Judge. 

The State of Iowa and state agencies and officials seek interlocutory 

review of a district court order denying their motion to dismiss an action 

brought by two nonprofit groups under the public trust doctrine. 

REVERSED AND REMANDED.

Mansfield, J., delivered the opinion of the court, in which 

Christensen, C.J., and Waterman and McDermott, JJ., joined. Appel, J., 

filing a dissenting opinion. McDonald, J., filing a dissenting opinion, in 
2 

which Oxley, J., joined. Oxley, J., filed a dissenting opinion, in which 

Appel, J., joined. 

Thomas J. Miller, Attorney General, Jeffrey S. Thompson (argued), 

Solicitor General, Jacob J. Larson, David S. Steward, Eric M. Dirth, and 

Thomas J. Ogden, Assistant Attorneys General, for appellants. 

Brent Newell (argued) and Kellan R. Smith of Public Justice, P.C., 

Oakland, California, Roxanne Barton Conlin and Devin Kelly of Roxanne 

Conlin & Associates, P.C., Des Moines, Tarah Heinzen of Food & Water 

Watch, Portland, Oregon, and Channing Dutton of Lawyer, Lawyer, 

Dutton, and Drake, LLP, West Des Moines, for appellees. 

James L. Pray, Jordan D. Nickerson, and Tess L. Pocock of Brown, 

Winick, Graves, Gross, Baskerville and Schoenebaum, PLC, Des Moines 

for amicus curiae Agricultural Legal Defense Fund. 

Tucker F. Levis and Christina L. Gruenhagen of Parker & 

Geadelmann, P.L.L.C., West Des Moines; and Eldon McAfee of Brick 

Gentry P.C., West Des Moines, for amicus curiae Iowa Cattlemen’s 

Association, Iowa Corn Growers Association, Iowa Farm Bureau 

Federation, Iowa Pork Producers Association, Iowa Poultry Association, 

Iowa Soybean Association, Iowa State Dairy Association, and Iowa Turkey 

Federation. 

Paige Fiedler of Fiedler Law Firm, Johnston; and Joel R. Waltzer and 

Robert B. Wiygul of Waltzer Wiygul & Garside, New Orleans, Louisiana, for 

amicus curiae Gulf Organized Fisheries in Solidarity and Hope, Inc., and 

Mississippi Commercial Fisheries United, Inc. 
3 

Richard A. Malm and John E. Lande of Dickinson, Mackaman, Tyler 

& Hagen, P.C., Des Moines, for amicus curiae Board of Water Works 

Trustees of the City of Des Moines, Iowa. 

Chad A. Swanson of Dutton, Daniels, Hines, Kalkhoff, Cook & 

Swanson, P.L.C., Waterloo, and Paige M. Tomaselli of The Law Office of 

Paige Tomaselli, Richmond, California, for amicus curiae Iowa Farmers 

Union and Farm Aid. 

Neil Hamilton, Drake University Law School, Des Moines, for amicus 

curiae Drake Law Professors Neil Hamilton, Allan Vestal, Mark Kende, and 

Jerry Anderson. 
4 

MANSFIELD, Justice.

Two social justice organizations have brought this case against the 

State of Iowa, four different state agencies, and a number of state officials. 

Relying on the public trust doctrine, under which the State is the “trustee” 

of the State’s navigable waters, they seek to force the defendants to enact 

legislation that will compel Iowa farmers to take steps that will have the 

effect of significantly reducing levels of nitrogen and phosphorus in the 

Raccoon River. This, they allege, will improve their members’ aesthetic 

and recreational use of the river and bring about reductions in their water 

bills. 

The defendants moved to dismiss the petition based on lack of 

standing, nonjusticiability, and failure to exhaust administrative 

remedies. The district court denied the motion. On appeal, we now 

conclude that the motion should have been granted on the first two 

grounds. In our view, the attenuated causation theory of the petition is 

not enough to establish that the plaintiffs’ members have suffered a 

concrete injury at the hands of the defendants that a favorable court 

decision is likely to redress. And, we believe the plaintiffs’ effort to 

repurpose the historically narrow public trust doctrine to solve a complex 

environmental problem presents a nonjusticiable political question. 

Therefore, we reverse the district court’s order and remand with 

instructions to dismiss the petition. 

I. Factual and Procedural Background. 

A. The Nature of the Litigation and the Parties. This is an action 

for declaratory relief and to compel the State of Iowa to adopt “a Raccoon 

River remedial plan with mandatory agricultural water pollution controls.” 

The plaintiffs are Iowa Citizens for Community Improvement (ICCI) 

and Food and Water Watch (FWW). ICCI has 5100 members, of whom 
5 

2404 reside in Polk County. Many of those members recreate in, on, or 

around the Raccoon River in Polk County. ICCI’s organizational priorities 

include “fighting factory farms and campaigning to clean up Iowa’s 

polluted waterways, as well as advancing worker justice, racial justice, and 

immigrants’ rights.” 

FWW “champions healthy food and clean water for all by standing 

up to corporations that put profits before people and advocating for a 

democracy that improves people’s lives and protects the environment.” 

FWW has 18,400 “members and supporters” in Iowa, and 2804 “members 

and supporters” in Polk County. 

The defendants are the State of Iowa, the Iowa Department of 

Natural Resources (DNR), the director of DNR, the Environmental 

Protection Commission, the members of the Environmental Protection 

Commission, the Natural Resource Commission, the members of the 

Natural Resource Commission, the Iowa Department of Agriculture and 

Land Stewardship, and the secretary of agriculture. Thus, the petition 

names twenty-three separate defendants. 

B. Factual Allegations in the Petition. The petition alleges that 

Iowa leads the nation in corn and pork production, and is one of the 

leaders in soybean production. But according to the petition, this food 

production comes at a cost. Iowa farmers “apply vast amounts of fertilizer 

to grow corn and soybeans.” They also apply manure from animal feeding 

operations to corn and soybeans as fertilizer. Fertilizer and manure 

contain nitrogen, which is converted to nitrates. They also contain 

phosphorus. 

Some of these nitrates and phosphorus run off into the Raccoon 

River watershed. They contribute to the growth of cyanobacteria, which 

excrete cyanotoxins. 
6 

Climate change—specifically, higher air and water temperatures and 

more frequent heavy rains—have also led to more nitrates and phosphorus 

in the watershed and more cyanobacteria proliferation. 

Since 1974, average nitrate levels in the Raccoon River have 

increased significantly. The Des Moines Water Works has had to incur 

costs to remove nitrates from Raccoon River water so the Class C drinking 

water standard of 10 mg/l is met before the water actually reaches the 

customer. Currently, there is no mandatory state plan for the reduction 

of nitrates in the Raccoon River. 

DNR has authorized animal feeding operations to apply manure to 

frozen, snow-covered ground, which has resulted in discharges to 

navigable waters. The Iowa legislature has appropriated insufficient funds 

to DNR to implement and enforce water quality protections at animal 

feeding operations. Legislation to impose a moratorium on new medium 

and large animal feeding operations has been introduced in the Iowa 

legislature but has not passed. 

In 2008, environmental groups inside and outside Iowa tried to get 

the Federal Environmental Protection Agency (EPA) to promulgate numeric 

water quality standards for nitrogen and phosphorus. The EPA said no. 

Instead, in 2011, the EPA announced a policy to defer to states on nitrogen 

and phosphorus regulation. EPA recommended states implement 

“voluntary agricultural nonpoint source controls.” Efforts to overturn the 

EPA’s decision not to act were unsuccessful. See generally Gulf 

Restoration Network v. McCarthy, 783 F.3d 227, 243–44 (5th Cir. 2015) 

(holding that the EPA had discretion not to issue water quality standards 

for nitrogen and phosphorus if it provided a reasonable explanation). 

Nitrogen and phosphorus entering the Gulf of Mexico from, in part, 

the Mississippi River Basin “has created a hypoxic zone spanning 
7 

thousands of square miles.” A 2008 Gulf Hypoxia Action Plan calls for 

Iowa and other states along the Mississippi River to reduce nitrogen and 

phosphorus loadings to the Gulf of Mexico so that a 45% reduction in total 

levels is achieved. 

In 2013, the Iowa legislature enacted legislation to authorize and 

fund the Iowa Nutrient Reduction Strategy. 2013 Iowa Acts ch. 132, § 60 

(codified at Iowa Code § 466B.42 (2014)). This strategy identifies best 

management practices to reduce nitrogen and phosphorus discharges into 

surface waters but does not require adoption or implementation of any 

specific measure or practice. Only limited progress has been made; 

statewide improvements will require “a much greater degree of 

implementation than has occurred so far.” 

In the 2018 session, the Iowa legislature enacted section 20 of 

Senate File 512, making the Iowa Nutrient Reduction Strategy the state 

policy for nitrogen and phosphorus water pollution controls. 2018 Iowa 

Acts ch. 1001, § 20 (codified at Iowa Code § 455B.177(3) (2019)). 

C. The Plaintiffs’ Legal Claims. The plaintiffs’ claims are all based 

on the public trust doctrine. The plaintiffs allege that their members are 

beneficiaries under the public trust doctrine and that the State has a duty 

to protect the public use of navigable waters and to prevent substantial 

impairment of navigable waters. They allege that the State has abdicated 

control of the meandered section of the Raccoon River to private parties by 

pursuing a “voluntary” nitrogen and phosphorus control strategy for 

agricultural nonpoint sources. 

ICCI and FWW members suffer harm in several ways. Des Moines 

Water Works, which serves the metropolitan Des Moines area and draws 

water from the Raccoon River, incurs capital, operational, maintenance, 

and monitoring costs to reduce nitrate and cyanotoxin contamination. 
8 

This results in higher costs for drinking water. ICCI and FWW members 

also have concerns about health risks from consuming water containing 

nitrates and microcystins. In addition, ICCI and FWW members suffer 

aesthetic injury and injury to their recreational use of the Raccoon River 

for swimming and kayaking. There have been several days when levels of 

microcystins impaired swimming and kayaking in the river. 

The plaintiffs seek both declaratory and injunctive relief, at a high 

level of generality. In brief, they seek a declaration that the State violated 

the public trust doctrine by not protecting the public’s recreational and 

drinking water use of navigable waters. They also seek a declaration that 

section 20 of Senate File 512 is null and void as inconsistent with the 

public trust doctrine. They further seek an injunction against the State 

from taking any further action that would violate the public trust doctrine. 

They ask for an injunction requiring the State “to adopt and implement a 

mandatory remedial plan to restore and protect public use that requires 

agricultural nonpoint sources and CAFO’s [confined animal feeding 

operations] to implement nitrogen and phosphorus limitations in the 

Raccoon River watershed.” And, finally, until that plan is working, they 

seek an injunction against the State authorizing the construction and 

operation of new medium and large animal feeding operations and 

confined animal feeding operations in the Raccoon River watershed. 

D. The Motion to Dismiss. On April 29, 2019, the defendants 

moved to dismiss the petition based on lack of standing, nonjusticiability, 

and failure to exhaust administrative remedies. On May 10, the plaintiffs 

filed a resistance. The district court held a hearing on June 19. On 

September 10, the court issued an order denying the defendants’ motion 

to dismiss. 
9 

The defendants sought an interlocutory appeal, and we granted their 

application. We retained the appeal. 

II. Standard of Review. 

We review questions of standing and whether an action should be 

dismissed as nonjusticiable for correction of errors at law. State ex rel. 

Dickey v. Besler, 954 N.W.2d 425, 430 (Iowa 2021). 

III. Legal Analysis. 

A. The Public Trust Doctrine. Although the merits of this case 

are not before us, some understanding of the public trust doctrine is 

required to address the standing and justiciability issues that are before 

us.1

The public trust doctrine “is based on the notion that the State is a 

steward of our natural resources.” Fencl v. City of Harpers Ferry, 620 

N.W.2d 808, 814 (Iowa 2000) (en banc). But it “has a narrow scope.” Id.

at 813. It “originally applied to the beds of navigable waters, but has now 

expanded to embrace the public’s use of lakes and rivers for recreational 

purposes as well.” Larman v. State, 552 N.W.2d 158, 161 (Iowa 1996). It 

protects “the public’s right of access to public waters.” Id. And, it “limits 

the State’s power to dispose of land encompassed within the public trust.” 

 

1Standing cannot be considered in a vacuum without reference to the source of 

the legal claims. See, e.g., State ex rel. Food & Water Watch v. State, 100 N.E.3d 391, 397 

(Ohio 2018) (per curiam) (finding there was no standing because “a plain reading of the 

statute does not support, and [the plaintiff] has not shown, that the writ sought—one 

that would mandate the promulgation of rules—will likely redress the purported injury”). 

Likewise, we have said before that “the political question grounds and the failure 

to state a claim grounds are interrelated.” King v. State, 818 N.W.2d 1, 12 (Iowa 2012). 

To determine whether a claim is within the competence of the judiciary to handle, it is 

appropriate to understand what the claim is. We do not agree with the suggestion that 

the political question doctrine cannot be raised unless the party raising it is also seeking 

to dismiss for failure to state a claim. A party can concede that a novel theory—like the 

plaintiffs’ expansive version of public trust doctrine—would state a claim and still argue 

that it would not redress the plaintiffs’ injuries and be unworkable for courts to 

administer.
10 

Id. These two principles of public access and no private alienation are 

interrelated. Obviously, if some part of the public trust is turned over to 

a private party, then the public no longer has access to it. 

We have repeatedly discussed and applied the public trust doctrine 

as embodying these twinned notions of open access and no private 

alienation. See State v. Pettijohn, 899 N.W.2d 1, 35 (Iowa 2017) (explaining 

that the doctrine involves “the ‘paramount’ right of Iowans to use state 

waterways for navigational and recreational purposes” and noting that 

Congress declared the navigable waters leading into the Mississippi to be 

“common highways, and forever free as well to the inhabitants of said 

State, as to all other citizens of the United States”); Orr v. Mortvedt, 735 

N.W.2d 610, 615 (Iowa 2007) (“The public generally has a right of access 

to navigable watercourses.”); State v. Sorensen, 436 N.W.2d 358, 362 (Iowa 

1989) (noting “the stringent limitations on the state’s power to alienate” 

public trust resources); Witke v. State Conservation Comm’n, 244 Iowa 261, 

270–72, 56 N.W.2d 582, 588–89 (1953) (rejecting a fee for access to Clear 

Lake that was not based on an improvement or service provided); Peck v. 

Alfred Olsen Constr. Co., 216 Iowa 519, 522, 245 N.W. 131, 133 (1932) 

(“[T]he power and the duty conferred upon the state under such title is to 

maintain and promote the navigation and navigability of such lake.”). In

State v. Meyers, we recently invoked the public trust doctrine in holding 

that a group of private property owners could not convert a navigable 

stream to their own private lake simply by blocking access to it. See 938 

N.W.2d 205, 210–12 (Iowa 2020). 

Many of our cases contain language that the public trust doctrine 

protects public “use” of public trust property. For example, in State v. 

Sorensen we said, 
11 

The public trust doctrine, however, is not limited to 

navigation or commerce; it applies broadly to the public’s use

of property, such as waterways, without ironclad parameters 

on the types of uses to be protected. See [Richard J.] Lazarus, 

[Changing Conceptions of Property and Sovereignty in Natural 

Resources: Questioning the Public Trust Doctrine, 71 Iowa Law 

Review 631, ] 649 [(1986)]; 65 C.J.S. Navigable Waters § 92, 

at 289–91 [(1966)] (Public trust purposes include “rights of 

navigation, commerce, fishing, bathing, recreation, or 

enjoyment, and other appropriate public and useful purposes, 

or such other rights as are incident to public waters at 

common law, free from obstruction and interference by private 

persons. . . .”). 

436 N.W.2d at 363. Still, even in this context “use” means access—i.e., 

the right to enter “free from obstruction and interference by private 

persons.” Id. (quoting 65 C.J.S. Navigable Waters § 92, at 289–91.) 

Historically, in Iowa, the public trust doctrine has not provided an 

opening for courts to weigh different uses, that is, to second-guess 

regulatory decisions made by elected bodies. In Bushby v. Washington 

County Conservation Board, we explained that “[t]he purpose of the publictrust doctrine is to prohibit states from ‘conveying important natural 

resources’ to private parties.” 654 N.W.2d 494, 497 (Iowa 2002) (quoting 

Fencl, 620 N.W.2d at 814). We elaborated, 

In Iowa this doctrine was originally applied to the beds 

of navigable waters and has been expanded to include the 

recreational use of lakes and rivers. Nevertheless, the scope 

of the public-trust doctrine in Iowa is narrow, and we have 

cautioned against overextending the doctrine. We are 

convinced that it does not serve as an impediment to legally 

sanctioned management of forested areas by the public bodies 

entrusted by law with their care. 

Id. at 498 (citations omitted). Thus, we rejected an attempt in Bushby to 

use the public trust doctrine to enjoin a clear-cutting of trees on public 

land that had been approved by the elected board of supervisors. Id. While 

the plaintiffs preferred that this reserve be left alone in its “fairly natural 

state,” the county’s representatives had determined otherwise. Id. at 495–
12 

96; see also Magers-Fionof v. State, 555 N.W.2d 672, 674 (Iowa 1996) 

(stating it was “very doubtful” that the public trust doctrine provided a 

cause of action against the state for injury to trees grown in state parks). 

Within the last year, the Minnesota Supreme Court has held that 

the public trust doctrine did not support a claim against the Minnesota 

Department of Natural Resources alleging mismanagement, pollution, and 

impairment of a lake. White Bear Lake Restoration Ass’n ex rel. State v. 

Minn. Dep’t of Nat. Res., 946 N.W.2d 373, 376–77 (Minn. 2020). The 

Minnesota court explained that “the doctrine was used from its inception 

to define property rights in navigable waters, entrusting them to the state 

for public use rather than allowing riparian owners to assert a private 

property interest.” Id. at 385. The court quoted from the seminal United 

States Supreme Court decision which made clear that “[t]he doctrine is 

founded upon the necessity of preserving to the public the use of navigable 

waters from private interruption and encroachment.” Id. (quoting III. Cent. 

R.R. v. Illinois, 146 U.S. 387, 436, 13 S. Ct. 110, 112 (1892)). The court 

then emphasized that the plaintiff had not alleged a violation of that duty 

“to protect public use from ‘private interruption and encroachment.” Id.

at 386. Instead, the plaintiff contended that the Minnesota DNR had 

issued groundwater permits that resulted in degradation of the lake. Id. 

The court observed, “We have found no precedent—and, at oral argument, 

counsel for [the plaintiff] could cite none—extending the public trust 

doctrine in this way.” Id. Finally, the court concluded, 

Twenty-five chapters within Minnesota Statutes are 

dedicated to water protection, use, and appropriation. . . . 

Because the Legislature has established structures within 

which public water use priorities are to be balanced, and no 

private encroachment or diversion to another state has been 

alleged, we see no need to extend the judiciary’s common-law 

role in this instance. 
13 

Id. (citation omitted). 

Again, the merits are not before us on this appeal. Accordingly, we 

assume for present purposes that the public trust doctrine could be 

expanded to serve the plaintiffs’ regulatory ends. The questions we need 

to answer is whether the plaintiffs have standing to bring their case and 

whether their case is justiciable. 

B. Standing. For there to be standing in federal court, a plaintiff 

must show not only (1) injury in fact, but also that the injury in fact (2) is 

fairly traceable to the defendants’ conduct and (3) is likely to be redressed 

by a favorable decision. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–

61, 112 S. Ct. 2130, 2136 (1992). 

[A] litigant must demonstrate that it has suffered a concrete 

and particularized injury that is either actual or imminent, 

that the injury is fairly traceable to the defendant, and that it 

is likely that a favorable decision will redress that injury. 

Massachusetts v. EPA, 549 U.S. 497, 517, 127 S. Ct. 1438, 1453 (2007). 

All three requirements are bedrock requirements of Article III 

constitutional standing in the federal courts. Lujan, 504 U.S. at 560, 112 

S. Ct. at 2136 (referring to the “irreducible constitutional minimum of 

standing”). They are not mere prudential considerations. Id.

In Iowa, we follow a two-prong approach. “Our cases have 

determined that a complaining party must (1) have a specific personal or 

legal interest in the litigation and (2) be injuriously affected.” Citizens for 

Responsible Choices v. City of Shenandoah, 686 N.W.2d 470, 475 (Iowa 

2004); see also Berent v. City of Iowa City, 738 N.W.2d 193, 202 (Iowa 

2007) (“We have held that in order to have standing a party must (1) have 

a specific personal or legal interest in the litigation and (2) be injuriously 

affected.”). “This inquiry is separate from, and precedes, the merits of a 
14 

case.” Horsfield Materials, Inc. v. City of Dyersville, 834 N.W.2d 444, 452. 

(Iowa 2013). 

We have said that “[w]ith state courts, standing is a self-imposed 

rule of restraint.” Hawkeye Bancorporation v. Iowa Coll. Aid Comm’n, 360 

N.W.2d 798, 802 (Iowa 1985). But that doesn’t make the standing 

requirement any less real. After all, article III, section 1 of the state 

constitution prohibits the judicial branch from exercising any function 

properly belonging to the legislative or executive branch. Iowa Const. art. 

III, § 1. Article V, section 6 provides that Iowa courts operate as “court[s] 

of law and equity.” Id. art. V, § 6. We have repeatedly said that the plaintiff 

“must” be injuriously affected to have standing. See, e.g., Horsfield 

Materials, 834 N.W.2d at 452; Godfrey v. State, 752 N.W.2d 413, 418 (Iowa 

2008); Berent, 738 N.W.2d at 202; Alons v. Iowa Dist. Ct., 698 N.W.2d 858, 

869–71 (Iowa 2005); Citizens for Responsible Choices, 686 N.W.2d at 475. 

Our court has interpreted the “injuriously affected” prong of 

standing as incorporating the Lujan three-part test. In Alons v. Iowa 

District Court, we quoted from Lujan at length, including the three-part test 

and the “irreducible constitutional minimum” language. 698 N.W.2d at 

867–68. We noted there were separate, additional prudential 

considerations. Id. at 868–69. We then essentially said that the federal 

test—both constitutional and prudential—was “not dissimilar from our 

own test,” and “[w]e therefore consider the federal authority persuasive.” 

Id. at 869. So, Alons aligned us with Lujan. 

In Godfrey v. State, we said that the second and third requirements 

from Lujan “largely relate to the prudential concerns we have recognized, 

and we too have relied on them to resolve standing claims in the past.” 

752 N.W.2d at 422. We identified Citizens for Responsible Choices v. City 

of Shenandoah as a case decided on traceability grounds—i.e., the second 
15 

Lujan test. Id. (citing Citizens for Responsible Choices, 686 N.W.2d at 472, 

475). Still, regardless of whether we characterize these requirements as 

constitutional or prudential, traceability and redressability are a part of 

standing in Iowa. See also Horsfield Materials, 834 N.W.2d at 457–58 

(quoting Godfrey as recognizing the Lujan three-part test).2

Think about it this way: If the court can’t fix your problem, if the 

judicial action you seek won’t redress it, then you are only asking for an 

advisory opinion. See Schmidt v. State, 909 N.W.2d 778, 800 (Iowa 2018) 

(“We do not issue advisory opinions.”). In Dickey v. Iowa Ethics & 

Campaign Disclosure Board, we found that the district court lacked 

standing to hear a campaign finance reporting case where a favorable 

ruling in the case would not provide additional information to the 

petitioner. 943 N.W.2d 34, 38–41 (Iowa 2020). We stated, “Courts exist 

to hear claims brought by injured parties; [the petitioner] is not injured.” 

Id. at 40. 

In a broad sense, standing is deeply rooted in the separationof-powers doctrine and the concept that the branch of 

government with the ultimate responsibility to decide the 

constitutionality of the actions of the other two branches of 

government should only exercise that power sparingly and in 

a manner that does not unnecessarily interfere with the policy 

and executory functions of the two other properly elected 

branches of government. While this policy of standing has no 

specific constitutional basis in Iowa, as it does in federal law, 

it is compatible with the overall constitutional framework in 

this state and properly reflects our role in relationship to the 

other two coequal branches of government. This ultimate 

power to decide disputes between the other branches of 

government and to determine the constitutionality of the acts 

 

2And the Lujan three-part test remains part of federal standing law as well. See 

Carney v. Adams, ___ U.S. ___, ___, 141 S. Ct. 493, 498 (2020) (quoting and applying the 

Lujan test); Spokeo, Inc. v. Robins, ___ U.S. ___, ___, 136 S. Ct. 1540, 1547 (2016) (same); 

Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409, 133 S. Ct. 1138, 1147 (2013) (same). 

A “speculative chain of possibilities” is not enough. Clapper, 568 U.S. at 414, 133 

S. Ct. at 1150. Standing “serves to prevent the judicial process from being used to usurp 

the powers of the political branches.” Id. at 408, 133 S. Ct. at 1146. 
16 

of the other branches of government does not exist as a form 

of judicial superiority, but is a delicate and essential judicial 

responsibility found at the heart of our superior form of 

government. We have the greatest respect for the other two 

branches of government and exercise our power with the 

greatest of caution. 

Godfrey, 752 N.W.2d at 425 (citation omitted). 

When the asserted injury arises from the government’s allegedly 

unlawful failure to regulate someone else, “the plaintiff must establish ‘a 

causal connection between the injury and the conduct complained of’ and 

that the injury is ‘ “likely,” as opposed to merely “speculative,” to be 

“redressed by a favorable decision.” ’ ” Godfrey, 752 N.W.2d at 421 

(quoting Lujan, 504 U.S. at 561, 112 S. Ct. at 2136); see also Alons, 698 

N.W.2d at 868 (quoting the same language); Sanchez v. State, 692 N.W.2d 

812, 821 (Iowa 2005) (same). 

Here, it is speculative that a favorable court decision in this litigation 

would lead to a more aesthetically pleasing Raccoon River, better 

swimming and kayaking on the river, and lower water rates in the Des 

Moines metropolitan area. As already noted, to a large extent the plaintiffs 

are simply seeking broad, abstract declarations in this litigation.3 Such 

general declarations do not provide any assurance of concrete results, 

although they do herald long-term judicial involvement. The only specific 

 

3There are six operative paragraphs in the prayer for relief. Paragraphs A and B 

simply seek declarations that the State has a duty to protect the public’s recreational and 

drinking water use and that the public trust doctrine has been violated. Paragraph F 

enjoins the State from taking further actions to violate the public trust doctrine. These 

are generalities. 

Paragraph C seeks a declaration that section 20 of SF 512 is null and void. 

Paragraph D purports to require the State to adopt and implement a mandatory remedial 

plan that requires agricultural nonpoint sources and CAFOs to implement nitrogen and 

phosphorus limitations in the Raccoon River watershed—with no detail beyond that. And 

paragraph E would impose a moratorium on new and expanded large and confined 

animal feeding operations until the State does so. 
17 

declaration the plaintiffs request is that section 20 of Senate File 512 be 

declared void and unconstitutional. That section reads as follows: 

The general assembly further finds and declares that it is in 

the interest of the people of Iowa to assess and reduce 

nutrients in surface waters over time by implementing the 

Iowa nutrient reduction strategy. To evaluate the progress 

achieved over time toward the goals of the Iowa nutrient 

reduction strategy and the United States environmental 

protection agency gulf hypoxia action plan, the baseline 

condition shall be calculated for the time period from 1980 to 

1996. 

2018 Iowa Acts ch. 1001, § 20. 

We do not see how declaring this section void would lead to lower 

water rates, more viewing enjoyment of the Raccoon River, or more 

swimming and kayaking opportunities in the Raccoon River for the 

plaintiffs’ members. 

The injunctive relief sought by the plaintiffs is also quite general. 

The plaintiffs ask us to enjoin the “State”—meaning the twenty-three 

different defendants in the lawsuit—to come up with “a mandatory 

remedial plan” that requires all grain and livestock producers “to 

implement nitrogen and phosphorus limitations in the Raccoon Valley 

watershed.” The plaintiffs admit that this plan can only be accomplished 

through legislation. In fact, they argue they need not exhaust 

administrative remedies because what they seek can only be accomplished 

through legislation. In their words: “[T]he agency Defendants lack 

authority to require nutrient limits for nitrogen and phosphorus from 

agricultural nonpoint sources.” Only the legislature can do this. 

But this leads immediately to the question of what that legislation 

would look like. There is no free lunch. According to the 2008 Water 

Quality Improvement Plan that is cited in the petition (and therefore part 
18 

of the materials we may consider),4 a 50% reduction in overall fertilizer 

application in the watershed—a dramatic change—would only produce a 

20% reduction in Raccoon River nitrate levels. This would not come close 

to meeting the 48.1% reduction in nitrate levels that the plaintiffs allege is 

needed for the Raccoon River to consistently have a nitrate level below 

10 mg/l and therefore meet the Class C drinking water standard without 

further treatment. 

Farmers use fertilizer for economic reasons, so this reduction in 

fertilizer application would affect yields and make Iowa farmers less 

competitive. The legislature might decide to charge the costs of efforts to 

reduce nitrogen and phosphorus runoff to the public rather than just to 

farmers. The legislature might decide that it is appropriate for all users of 

the Raccoon River watershed to bear these costs. This could lead to even 

higher out-of-pocket expenditures for the plaintiffs’ members. 

Notably, to the extent the issue is the need to remove nitrate 

pollution from drinking water in order to make it drinkable, the Des 

Moines Water Works (DMWW) is the party more directly affected and better 

positioned to bring a lawsuit. It has already brought a lawsuit—

unsuccessfully. See Bd. of Water Works Trs. of Des Moines v. Sac Cnty. 

Bd. of Supervisors, 890 N.W.2d 50 (Iowa 2017); Bd. of Water Works Trs. of 

Des Moines v. Sac Cnty. Bd. of Supervisors, 2017 WL 1042072 (N.D. Iowa 

Mar. 17, 2017). There, DMWW sought money damages for costs of 

removing nitrates. Bd. of Water Works Trs. of Des Moines, 890 N.W.2d at 

52. DMWW “d[id] not suggest it would be cheaper for the [rural] drainage 

districts to remove nitrates from multiple locations than for DMWW to 

 

4See King, 818 N.W.2d at 6 n.1 (holding that in ruling on a motion to dismiss for 

failure to state a claim, the court may consider documents referenced in the petition 

regardless of whether they have been attached). 
19 

remove nitrates from a single location.” Id. at 66. DMWW’s removal of 

nitrates for drinking water purposes costs about one cent per day per 

customer. Id. at 68. 

Also, it is not clear that even significant reductions in farmers’ 

fertilizer use would actually bring about better kayaking, swimming, and 

viewing on the river. According to the petition, cyanobacteria blooms, 

cyanotoxins, and microcystins are all increasing due to climate change. 

There is not enough here to demonstrate that a favorable outcome 

in this case is likely to redress the plaintiffs’ alleged reduced ability to 

kayak, swim, or enjoy views of the Raccoon River, or would save them 

money on drinking water. The plaintiffs’ claims must therefore be 

dismissed for lack of standing.5

Finally, we address the suggestion that the defendants conceded at 

oral argument that there would be standing for the plaintiffs’ declaratory 

judgment claim. Here is the actual exchange between a member of our 

court and defense counsel: 

QUESTION: So is what you’re saying, if -- if they didn’t 

ask for the injunctive relief or if we agreed with you that the 

injunctive relief was subject to the political question doctrine 

and then got rid of that, could the lawsuit proceed just on the 

declaratory relief that they’re requesting? ANSWER: I think 

it’s possible, yes. I mean -- and I’m just -- again, I’m accepting 

a lot of what-ifs here. Because the relief is the key, and the 

-- and the claims that they’ve asserted are the basis for the 

 

5We found that the Sierra Club had standing to challenge a pipeline in Puntenney 

v. Iowa Utilities Board, 928 N.W.2d 829, 837–38 (Iowa 2019). But there was no 

speculative chain there. The injury came from one event—the construction and operation 

of a crude oil pipeline. Id. at 837. The issue was whether there was legal authority to 

build the pipeline. Id. at 832–33. The relief requested was to stop the pipeline. Id. A 

favorable decision on that point would have stopped the pipeline, at least until it had 

been built. Id. at 839–40. Contrast Puntenney with Citizens for Responsible Choices, 

where we held that the plaintiffs lacked standing to challenge the issuance of bonds 

because any injury would not result from the issuance of bonds per se, but from the 

project financed by the bonds. 686 N.W.2d at 475. The chain of causation, in other 

words, was too remote.
20 

declaratory relief that they’re seeking, and so it’s kind of a 

naked request, if you will. 

And so -- and -- and I will have to concede that when 

we talk about redressability and causal connection to the 

injury, you know, it -- it -- the declaratory order, assuming 

that these are citizens that, you know, would be, under 

Justice McDonald’s analogy, beneficiaries of the trust, I -- I 

think I’d have to concede you could get to, if you wanted to, a 

declaratory order of some sort. 

But if we back into the overall framework of this lawsuit, 

it -- it doesn’t get them what they’re asking for, and it doesn’t 

remedy any of the alleged harms that they allege. 

(Emphasis added.) 

Several points should be noted. First, the question assumed that 

the injunctive relief claims would be subject to the political question 

doctrine and would not go forward. The issue was whether a declaratory 

judgment action alone could proceed. 

Second, although we do not find that defense counsel actually 

agreed the declaratory judgment part of the case could go forward, parties 

cannot bind us by an agreement that standing exists. Standing is 

jurisdictional. Northbrook Residents Ass’n v. Iowa State Dep’t of Health 

Off. for Health Plan. & Dev., 298 N.W.2d 330, 331 (Iowa 1980); see also

Godfrey, 752 N.W.2d at 417 (“Generally, courts refuse to decide disputes 

presented in a lawsuit when the party asserting an issue is not properly 

situated to seek an adjudication.”). In Bechtel v. City of Des Moines, we 

observed that even with a declaratory judgment case “a justiciable 

controversy must exist; we will not decide an abstract question simply 

because litigants desire a decision on a point of law or fact.” 225 N.W.2d 

326, 330 (Iowa 1975) (en banc). 

Third, even while conceding that “you could get to, if you wanted to, 

a declaratory order of some sort,” defense counsel added that “the relief is 

the key.” Thus, defense counsel pointed out that a declaratory order would 
21 

not remedy “any of the alleged harms that [the plaintiffs] allege.” We agree 

and therefore conclude that standing is absent in this case. 

C. Nonjusticiable Political Question. We have described the 

doctrine as follows: 

A political question may be found when one or more of 

the following considerations is present: 

(1) a textually demonstrable constitutional commitment of the 

issue to a coordinate political department; (2) a lack of 

judicially discoverable and manageable standards for 

resolving the issue; (3) the impossibility of deciding without 

an initial policy determination of a kind clearly for nonjudicial 

discretion; (4) the impossibility of a court’s undertaking 

independent resolution without expressing a lack of the 

respect due coordinate branches of government; (5) an 

unusual need for unquestioning adherence to a political 

decision already made; or (6) the potentiality of 

embarrassment from multifarious pronouncements by 

various departments on one question. 

Besler, 954 N.W.2d at 435 (quoting King v. State, 818 N.W.2d 1, 17 (Iowa 

2012)). 

The plaintiffs urge us to reject the political question doctrine out of 

hand for two reasons. First, they claim it does not apply to state courts. 

This position rests on an incorrect reading of Freeman v. Grain Processing 

Corp., 848 N.W.2d 58 (Iowa 2014). In Freeman, we concluded the political 

question doctrine did not apply to the facts of that case. Id. at 93–94. But 

we acknowledged it had been applied in other cases. Id. at 89, 92 

(discussing Des Moines Register & Tribune Co. v. Dwyer, 542 N.W.2d 493 

(Iowa 1996) (en banc), and State ex rel. Turner v. Scott, 269 N.W.2d 828 

(Iowa 1978) (en banc)); see also King, 818 N.W.2d at 21 n.17 (“There is a 

political question doctrine in Iowa as elsewhere.”). 

We applied the political question doctrine recently in State ex rel. 

Dickey v. Besler. 954 N.W.2d at 435–37. In Besler, we decided not to hear 

a lawsuit as to which of two officials (the Governor or the chief justice) 
22 

should have made an appointment when both had previously agreed to 

recognize the appointment made by one of them (the Governor). Id. 

Second, the plaintiffs insist that “constitutional claims are always 

justiciable.” Whatever the plaintiffs mean by this assertion, it is plainly 

too broad. Besler involved a constitutional claim, and we found the case 

nonjusticiable. In particular, the relator in Besler asserted that article V, 

section 15 of the Iowa Constitution required the chief justice rather than 

the Governor to make the appointment. Id. at 428–30. 

The plaintiffs rely on Luse v. Wray, 254 N.W.2d 324 (Iowa 1977) (en 

banc). They are correct that in Luse, we held that claims brought by voters 

whose votes weren’t counted in a disputed state legislative election 

resolved by the legislature were justiciable. Id. at 326–29. We 

acknowledged that article III, section 7 provides, “Each house shall choose 

its own officers, and judge of the qualification, election, and return of its 

own members.” Id. at 326 (quoting Iowa Const. art. III, § 7). Yet the key 

point in Luse was that the voters had alleged substantial deprivations of 

their personal equal protection and due process rights when their votes 

weren’t counted. Id. at 328. As we stated, 

Iowa courts have power to adjudicate substantial claims of 

deprivation of federal or Iowa constitutional rights by the 

houses of the Iowa General Assembly in the exercise of the 

houses’ election contest powers under § 7 of Article III of the 

Iowa Constitution. 

Id. Just a year later, in State ex rel. Turner, we clarified the limited scope 

of the Luse holding when we decided that whether a successful legislative 

candidate had met the residency requirement set forth in article III, 

section 5 was a nonjusticiable political question. Turner, 269 N.W.2d at 

829–31. We emphasized that there had been no “showing of deprivation 

of substantial constitutional rights” as in Luse. Id. at 832. 
23 

The plaintiffs seek to bring their claims under the umbrella of Luse 

rather than Turner by arguing they have made a showing of a deprivation 

of their own individual constitutional rights. We are not persuaded. 

Granted, the plaintiffs have spliced into their petition references to due 

process (article I, section 9) and unenumerated rights (article I, section 

25).6 But the substantive basis for their claims remains the public rights 

doctrine. That doctrine, by definition, involves rights that belong to the 

public as a whole. Pleading “public rights plus article I, section 9” or 

“public rights plus article I, section 25” doesn’t alter the essential publicrights nature of the plaintiffs’ lawsuit. See Konrardy v. Vincent Angerer 

Tr., Dated March 27, 1998, 925 N.W.2d 620, 623 n.1 (Iowa 2019) (“We look 

to the substance of Konrardy’s and Burmeister’s claim, not the label they 

attach, to determine its legal significance.”); State v. Webster, 865 N.W.2d 

223, 232 (Iowa 2015) (“[T]he substance of the claim, rather than its label, 

controls.”). 

Over a century ago, without using the term “political question,” we 

applied something akin to that doctrine when we decided that courts did 

not have jurisdiction to review determinations by county boards of 

supervisors not to form drainage districts. Denny v. Des Moines County, 

143 Iowa 466, 478, 121 N.W. 1066, 1071 (1909). We said that the 

sufficiency of a petition “in form or matter” to establish such a district was 

a proper subject for judicial review, but “the wisdom and practicability of 

a proposed drainage scheme” involved an exercise of “legislative authority” 

and district judges could only “determine judicial questions.” Id. at 475, 

121 N.W. at 1069–70. Therefore, even though the general assembly had 

 

6The due process clause provides that “no person shall be deprived of life, liberty, 

or property, without due process of law.” Iowa Const. art. I, § 9. The unenumerated 

rights clause provides, “This enumeration of rights shall not be construed to impair or 

deny others, retained by the people.” Id. § 25. 
24 

conferred jurisdiction on district courts to consider such appeals, we 

affirmed the district court’s dismissal of the action for want of jurisdiction. 

Id. at 471, 121 N.W. at 1067, 1071. We said, 

In view of the express provision of our state Constitution 

that the powers of the government shall be divided into three 

separate departments, the legislative, the executive, and the 

judicial, and that no person charged with the exercise of 

powers properly belonging to one of these departments shall 

exercise any function appertaining to either of the others, 

except as in the Constitution expressly directed or permitted 

(Const. art. 3, § 1), it must be conceded that, if the authority 

vested in the board of supervisors is in its nature legislative, 

and not judicial, then the district court, which is only vested 

with judicial power (Const. art. 5, §§ 1, 6), cannot by statute 

be authorized to exercise such authority. 

Id. at 471, 121 N.W. at 1068. In other words, the pros and cons of a 

drainage district ultimately required the exercise of “legislative discretion,” 

as opposed to being a question that could be resolved upon “issuable facts, 

capable of judicial determination.” Id. at 472, 121 N.W. at 1069. 

More recently, we have approved of the six-part test quoted above to 

determine whether a case presents a nonjusticiable political question. See 

Besler, 954 N.W.2d at 435; King, 818 N.W.2d at 17; Dwyer, 542 N.W.2d at 

495, Turner, 269 N.W.2d at 831. The test is drawn from a famous United 

States Supreme Court decision. See Baker v. Carr, 369 U.S. 186, 210, 82 

S. Ct. 691, 706 (1962). 

As we have noted, the plaintiffs here seek to expand the traditional 

Iowa public trust doctrine. Historically, this doctrine has been applied by 

our courts in cases seeking to remove private obstructions or 

interferences. These types of disputes are susceptible to judicial resolution 

using principles of property law. The plaintiffs allege, however, that the 

public trust doctrine “broadly protects the public’s use of navigable 

waters.” In other words, the plaintiffs argue that the doctrine imposes a 
25 

duty on the State to pass laws that regulate those waters in the best 

interests of the public. 

Under those circumstances, we perceive “a lack of judicially 

discoverable and manageable standards.” Besler, 954 N.W.2d at 435 

(quoting King, 818 N.W.2d at 17). In our view, stating that the legislature 

must “broadly protect[] the public’s use of navigable waters” provides no 

meaningful standard at all. Different uses matter in different degrees to 

different people. How does one balance farming against swimming and 

kayaking? How should additional costs for farming be weighed against 

additional costs for drinking water? Even if courts were capable of 

deciding the correct outcomes, they would then have to decide the best 

ways to get there. Should incentives be used? What about taxes? 

Command-and-control policies? In sum, these matters are not “claims of 

legal right, resolvable according to legal principles, [but] political questions 

that must find their resolution elsewhere.” Rucho v. Common Cause, ___ 

U.S. ___, ___, 139 S. Ct. 2484, 2494 (2019). 

The suggestion is made that this court could simply tell our 

legislature to pass laws that would bring nitrate levels in the Raccoon River 

consistently below 10 mg/l. That’s a specific outcome. But there are no 

judicially discoverable and manageable standards to aid a court in 

deciding whether that outcome is better than any other outcome. In Rucho 

v. Common Cause, for example, the plaintiffs and their amici proposed a 

variety of specific antigerrymandering rules. But how was a court to 

determine one was preferable to another? 

Moreover, this case presents a much higher degree of complexity 

than Rucho because passing laws that will ultimately alter nitrogen and 

phosphorus content is far more challenging than adopting a redistricting 

map. As already noted, even if a court could decide that the public trust 
26 

doctrine mandated a particular outcome, the question would immediately 

arise how to get there. 

In that regard, it seems impossible for a court to grant meaningful 

relief “without expressing a lack of the respect due coordinate branches of 

government.” See Besler, 954 N.W.2d at 435 (quoting King, 818 N.W.2d 

at 17). Normally, in equity proceedings, courts issue orders that can be 

read and then implemented. This preserves the independence of other 

branches of government by limiting the degree and duration of judicial 

supervision. Here, by contrast, the plaintiffs ask for a judicial directive to 

the legislature “to adopt and implement a mandatory remedial plan to 

restore and protect public use that requires agricultural nonpoint sources 

and CAFO’s [confined animal feeding operations] to implement nitrogen 

and phosphorus limitations in the Raccoon River watershed.” Not only 

would this directive be aimed at the legislature, which in itself raises 

separation of powers concerns, but an indefinite number of policy choices 

that would then need to be made. Inevitably, the legislature would have 

to send its emissaries to 500 Mulberry Street or 1111 East Court Avenue 

in Des Moines. Proposals would be submitted to the judiciary on an 

ongoing basis for our approval or disapproval. In effect, the judiciary 

would be exercising a veto power over the legislature. At this point, we 

would cease to be a coequal branch of government. Instead, we’d be 

asserting superiority. 

Another consideration is that the political branches in Iowa have 

made “an initial policy determination” to go in a different direction. Id. at 

435 (quoting King, 818 N.W.2d at 17). As the petition alleges, the 

voluntary Iowa Nutrient Reduction Strategy that they seek to overturn has 

been enshrined in legislation enacted in 2013 and 2018. See 2018 Iowa 

Acts ch. 1001, § 20; 2013 Iowa Acts ch. 132, § 60. The federal EPA also 
27 

supports this approach. To quote the 2011 Stoner Memorandum cited in 

the petition, 

EPA’s focus for nonpoint runoff of nitrogen and 

phosphorus pollution is on promoting proven land 

stewardship practices that improve water quality. EPA 

recognizes that the best approaches will entail States, federal 

agencies, conservation districts, private landowners and other 

stakeholders working collaboratively to develop watershedscale plans that target the most effective practices to the acres 

that need it most. 

Nancy Stoner, U.S. Envtl. Prot. Agency, Working in Partnership with States 

to Address Phosphorus and Nitrogen Pollution Through Use of a Framework 

for State Nutrient Reduction 3 (2011), https://www.acwaus.org/wp-content/uploads/2017/04/The-Stoner-Memo.pdf 

[https://perma.cc/Z5Q5-U7FK]. The plaintiffs believe the existence of 

this longstanding, basic policy determination should not deter us because 

it provides a frame of reference for what the courts should not do. We 

think this misconstrues the third political-question factor. The third factor 

focuses not on timing, but on priority. Is there a required policy 

determination that is more appropriate for another branch that sets the 

stage for everything else? If so, courts should not get involved. Kanuk ex 

rel. Kanuk v. State, Dep’t of Nat. Res., 335 P.3d 1088, 1098 (Alaska 2014) 

(“The underlying policy choices are not ours to make in the first instance.”). 

We recognize that this case may not involve a paradigm of “a 

textually demonstrable constitutional commitment of the issue to a 

coordinate political department.” Besler, 954 N.W.2d at 435 (quoting King, 

818 N.W.2d at 17). But there should be no doubt that the plaintiffs are 

seeking additional state funding. One paragraph of the petition alleges 

inadequate funding of the DNR. Article III, section 24 provides, “No money 

shall be drawn from the treasury but in consequence of appropriations 

made by law.” This case, if it proceeds, would put the judiciary in the 
28 

position of commandeering additional state funding for intensive 

regulation of nitrogen and phosphorus in yet-to-be-determined ways. 

Other cases support the conclusion that environmental public trust 

litigation is a nonjusticiable political question. In Aji P. ex rel. Piper v. 

State, the Washington Court of Appeals recently affirmed the dismissal on 

political question grounds of a lawsuit seeking to use the public trust 

doctrine to achieve the regulation of greenhouse gas emissions. 480 P.3d 

438, 447–49 (Wash. Ct. App. 2021); see also Kanuk, 335 P.3d at 1090–91 

(finding claims seeking specific relief based on the public trust doctrine to 

be barred by the political question doctrine and that other, more general 

claims should have been dismissed on prudential grounds); Butler ex rel. 

Peshlakai v. Brewer, 2013 WL 1091209, at *7 (Ariz. Ct. App. Mar. 13, 2013) 

(finding public trust claims nonjusticiable and noting “we would be 

weaving ‘a jurisprudence out of air’ to hold that the atmosphere is 

protected by the Doctrine and that state inaction is a breach of trust 

merely because it violates the Doctrine without pointing to a specific 

constitutional provision or other law that has been violated.”); SandersReed ex rel. Sanders-Reed v. Martinez, 350 P.3d 1221, 1227 (N.M. App. 

2015) (“Separation of powers principles would be violated by adhering to 

Plaintiffs’ request for a judicial decision that independently ignores and 

supplants the procedures established under the Air Quality Control 

Act. . . . We conclude that the courts cannot independently intervene to 

impose a common law public trust duty upon the State to regulate 

greenhouse gases in the atmosphere.”). 

The plaintiffs invoke Environmental Law Foundation v. State Water 

Resources Control Board, 237 Cal. Rptr. 3d 393 (Ct. App. 2018), but we 

think the case is distinguishable. The scope of the court’s ruling in that 

case was “extraordinarily narrow.” Id. at 396. The only issue was whether 
29 

a California agency and a county had to consider the potential harm from 

groundwater extraction on a navigable river before issuing well permits. 

Id. Pumping of groundwater has an effect on surface flows. Id. at 397. 

The court held that the public trust doctrine applied to such removals of 

nonnavigable water that had an adverse effect on navigable water. Id. at 

402. Significantly, the case involved a single question of administrative 

law, and the California version of the public trust doctrine “is expansive.” 

Id. at 400. But our present case does not involve a discrete attempt to 

modify an administrative process to insure that the consideration of 

arguments against diverting water that would otherwise go into a public 

trust navigable river. Instead, it seeks to order the legislature to enact a 

new set of environmental laws that balance the competing interests of 

stakeholders in different ways than before. 

Finally, we believe we should draw lessons from Oregon’s 

experience. In 2011, two young Oregonians brought a suit against the 

State of Oregon under the public trust doctrine, seeking to protect its 

natural resources from the effects of greenhouse gas emissions. Chernaik 

v. Brown, 475 P.3d 68, 71–72 (Or. 2020). Specifically, the plaintiffs sought 

a declaratory judgment and an injunction directing the state to implement 

a carbon reduction plan under court supervision. Id. Initially, the trial 

court dismissed the plaintiffs’ claims partly because they presented 

political questions. Id. at 72. The Oregon Court of Appeals reversed and 

remanded. Id. Eventually, after years of litigation, the case reached the 

Oregon Supreme Court, which ruled that the plaintiffs were not entitled to 

any relief except for a symbolic declaration that the public doctrine applies 

to navigable waters and submerged and submersible lands. Id. at 82. 

That was the anticlimactic end to nearly a decade of litigation. 
30 

We can do better. Where the plaintiffs have put forth claims that we 

cannot meaningfully resolve as a court using accepted methods of judicial 

decisionmaking, we should invoke the political question doctrine. We do 

so here and leave this dispute where it stands at present: with the 

branches of our government whose duty it is to represent the public. 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.7

IV. Conclusion. 

For the foregoing reasons, we reverse the district court’s order and 

remand with instructions to dismiss this case based on lack of standing 

and nonjusticiability. 

REVERSED AND REMANDED. 

Christensen, C.J., and Waterman and McDermott, JJ., join this 

opinion. Appel, J., files a dissenting opinion. McDonald, J., files a 

dissenting opinion, which Oxley, J., joins. Oxley, J., files a dissenting 

opinion, which Appel, J., joins. 

 

7Lest we be misunderstood, we agree that the petition describes a real 

environmental problem, both in Iowa and nationally. In their petition, the plaintiffs 

discuss the hypoxic zone in the Gulf of Mexico and the 2008 Gulf Hypoxia Plan. As 

further noted in the petition, the EPA declined in 2011 to take national action and a 

lawsuit seeking to reverse that decision failed. See Gulf Action Network v. Jackson, 224 

F. Supp. 3d 470, 474–75 (E.D. La. 2016). But we are a court, and we would be stepping 

outside our role to take on this matter as presented to us by these plaintiffs. 
31 

#19–1644, Iowa Citizens for Cmty. Improvement v. State

APPEL, Justice (dissenting). 

In Lujan v. Defenders of Wildlife, Justice Harry Blackmun wrote, “I 

cannot join the Court on what amounts to a slash-and-burn expedition 

through the law of environmental standing.” 504 U.S. 555, 606, 112 S. Ct. 

2130, 2160 (1992) (Blackmun, J., dissenting). In short, Lujan is precisely 

the kind of case where we should heed recent admonitions to not simply 

adopt federal caselaw in a top-down constitutional world. See Jeffrey S. 

Sutton, 51 Imperfect Solutions: States and the Making of American 

Constitutional Law 20 (2018). The majority, however, chooses to bring 

what Justice Blackmun called “slash-and-burn” to Iowa when reviewing a 

motion to dismiss a suit alleging injury in violation of the public trust 

doctrine. 

I dissent. For starters, I would follow the approach of our state court 

colleagues in Colorado, Connecticut, Hawaii, Nevada, Oregon, and 

Washington8 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. See Wyatt Sassman, A Survey 

of Constitutional Standing in State Courts, 8 Ky. J. Equine, Agric., & Nat’l 

Res. L. 349, 349 (2016) (noting that only a minority of states adopt the test 

adopted in Lujan). In particular, I would refuse to allow a handwringing 

application of standing doctrine to throttle environmental litigation in a 

motion to dismiss an action for declaratory and injunctive relief based on 

 

8See, e.g., City of Greenwood Village v. Petitioners for Proposed City of Centennial, 

3 P.3d 427, 437 n.8 (Colo. 2000) (en banc); Andross v. Town of West Hartford, 939 A.2d 

1146, 1157–59 (Conn. 2008); Citizens for Prot. of N. Kohala Coastline v. County. of 

Hawai‘i,, 979 P.2d 1120, 1127 (Haw. 1999); Stockmeier v. Nev. Dep’t of Corr. Psych. Rev. 

Panel, 135 P.3d 220, 225–26 (Nev. 2006) (per curiam), abrogated on other grounds by 

Buzz Stew, LLC v. City of North Las Vegas, 181 P.3d 670 (Nev. 2008); Kellas v. Dep’t of 

Corr., 145 P.3d 139, 143 (Or. 2006); West v. Seattle Port Comm’n, 380 P.3d 82, 86 (Wash. 

Ct. App. 2016). 
32 

the innovative discovery and application in Lujan of “causation” or 

“redressability” requirements. 504 U.S. at 560–61, 112 S. Ct. at 2136. 

I have already canvassed the law of standing in my dissent in Dickey 

v. Iowa Ethics & Campaign Disclosure Board. 943 N.W.2d 34, 42–57 (Iowa 

2020) (Appel, J., dissenting). By way of brief summary, the federal courts 

are restricted by the “case or controversy” requirements of Article III of the 

United States Constitution. Id. at 42. The limitations in Article III are 

based, in part, on considerations of federalism; namely, keeping federal 

courts out of state business. See id. But in this case, of course, there are 

no federalism considerations. We are a state court dealing with the state’s 

business. And our state constitutional framers deliberately omitted the 

language of Article III from the state constitution. See id. at 43. Unlike 

the federal courts of limited jurisdiction, general jurisdiction state courts 

were designed to be problem-solving courts with sufficient judicial power 

to effectively resolve a wide range of disputes brought to the local 

courthouse by citizens. Id. at 42. 

As a result, in Iowa, we have correctly held that “the federal test for 

standing is based in part upon constitutional strictures and prudential 

considerations while our rule on standing is self-imposed.” Alons v. Iowa 

Dist. Ct., 698 N.W.2d 858, 869 (Iowa 2005). There is no requirement for 

us to blindly follow federal precedent in standing or any other area of law. 

And I have no interest in closing down access to the courts with the 

“gotcha” applications of “redressability” and “causation” announced in 

Lujan and inconsistently applied thereafter, particularly when the newly 

discovered elements of standing are astonishingly applied at the motion to 

dismiss stage of litigation to dismiss cases involving important state 

constitutional issues. See, e.g., William A. Fletcher, Standing: Who Can 

Sue to Enforce a Legal Duty?, 65 Ala. L. Rev. 277, 286–87 (2013) (“The 
33 

environmental [standing] cases also respond to the Court’s perception of 

political reality. . . . [The Supreme Court] is narrowly construing statutes 

with whose policies it disagrees, using a standing doctrine that it has 

developed for this purpose.”); Oliver A. Houck, Arbitrary and Capricious: 

The Dark Canon of the United States Supreme Court in Environmental Law, 

33 Geo. Env’t L. Rev. 51, 70 (describing Lujan as “The Weaponization of 

Standing”); Cass R. Sunstein, Standing and the Privitization of Public Law, 

88 Colum. L. Rev. 1432, 1480 (1988) (stating that the court’s standing 

doctrine arises not from “restraint in the abstract but instead from hostility 

to suits brought by beneficiaries of regulatory programs to ensure fidelity 

to statute”). 

Although we have cited Lujan in a few cases on occasion, up until 

now, we have not adopted its new and innovative elements of “causation” 

and “redressability” into our standing doctrine. In Alons v. Iowa District 

Court, we cited Lujan for the traditional “injury in fact” federal standing 

requirement. 698 N.W.2d at 867–68. In Sanchez v. State, we cited Lujan

for the traditional requirement of “injury in fact” again but the newly 

fashioned “causation” and “redressability” additions of Lujan were not part 

of the holding of the Iowa case. 692 N.W.2d 812, 821 (Iowa 2005). 

Notably, no party in these cases cited Lujan in their briefs, let alone urged 

adoption of the “causation” or “redressability” discoveries of the case. 

Indeed, there is no Iowa case citing Lujan where the question of whether 

we should import into Iowa law its newly developed standing criteria on 

“causation” or “redressability.” But once a federal case is casually cut and 

pasted into the Iowa law books in an uncontested setting, it has a 

tendency, particularly if the federal case is rights restricting, to germinate 

into accidental precedent. 
34 

Here is the bottom line. We should not adopt the access to the 

courts restrictions of Lujan. We don’t need them. Our public trust cases 

have adhered to traditional standing doctrine. In Bushby v. Washington 

County Conservation Board, the court considered standing in a public 

trust and environment claim. 654 N.W.2d 494, 496–97 (Iowa 2002). The 

Bushby court required the plaintiffs to show the traditional elements of 

“(1) a specific, personal, and legal interest in the litigation, and (2) injury.” 

Id. at 496 (quoting Rieff v. Evans, 630 N.W.2d 278, 284 (Iowa 2001) 

(en banc)). More recently, in Puntenney v. Iowa Utilities Board, we held 

that a nonprofit environmental organization had standing to challenge the 

approval of an oil pipeline and the use of eminent domain under the 

Bushby standard. 928 N.W.2d 829, 837 (Iowa 2019). No mention of Lujan. 

We should follow the Bushby standard here. 

In any event, at the pleading stage, it is clear that the plaintiffs have 

alleged causation and redressability sufficient to survive a motion to 

dismiss even under Lujan. The plaintiffs attack the failure of the state to 

regulate agricultural nitrogen and phosphorus that enters the Raccoon 

River and substantially impairs the waterway. This allegation certainly 

satisfies the innovative “causation” element of Lujan. Further, as for the 

newly discovered “redressability requirement” that the State seeks to 

import into state law, the plaintiffs do not need to show that the requested 

relief will solve the problem completely but only that it will do some good. 

Pub. Int. Rsch. Grp. v. Powell Duffryn Terminals Inc., 913 F.2d 64, 73 (3d 

Cir. 1990). And, though it apparently may not matter, the State concedes 

the presence of injury in fact and the traditional elements of standing. 

I now turn to the majority’s discussion of the scope of the public 

trust doctrine. The majority provides a couple of pages that the average 

reader would likely conclude advance a narrow construction of the public 
35 

trust doctrine. The issue was not briefed by the parties and is not before 

the court. One could respond, I suppose, by noting the very generous 

language in State v. Sorenson, 436 N.W.2d 358, 363 (Iowa 1989), which 

stated that although we do not necessarily subscribe to the broad 

application of the doctrine, “the public trust doctrine . . . applies broadly 

to the public’s use of property, such as waterways, without ironclad 

parameters on the types of uses to be protected.” (Emphasis omitted.) 

I do not join the majority’s essay on the question or any of its narrow 

pronouncements oddly made in a case where a party has conceded, for 

purposes of a motion to dismiss, that the scope of the public trust doctrine 

is not at issue. I do note, however, from my review of cases that the public 

trust doctrine is not the proverbial legal fly frozen in amber. See Marks v. 

Whitney, 491 P.2d 374, 380 (Cal. 1971) (en banc) (“In administering the 

trust the state is not burdened with an outmoded classification favoring 

one mode of utilization over another.”); In re Water Use Permit Applications, 

9 P.3d 409, 450 (Haw. 2000) (declaring that purposes or uses of the public 

trust doctrine have “evolved over time”); Matthews v. Bay Head 

Improvement Ass’n, 471 A.2d 355, 365 (N.J. 1984) (declaring public trust 

doctrine is not “ ‘fixed or static,’ but one to ‘be molded and extended to 

meet changing conditions and needs of the public it was created to 

benefit.’ ” (quoting Borough of Neptune City v. Borough of Avon-By-The-Sea, 

294 A.2d 47, 55 (N.J. 1972))). And, beginning with the seminal article of 

Professor Sax in the Michigan Law Review fifty years ago, there is now a 

rich literature on the public trust doctrine that collect cases and provide 

rich insight into the questions of content and scope of the doctrine in the 

modern age. See Joseph Sax, The Public Trust Doctrine in Natural Resource 

Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471 (1970). See 

generally Michael C. Blumm & Mary Christina Wood, “No Ordinary 
36 

Lawsuit,”: Climate Change, Due Process, and the Public Trust Doctrine, 67 

Am. U. L. Rev. 1 (2017); Harrison C. Dunning, The Public Trust: A 

Fundamental Doctrine of American Property Law, 19 Env’t L. 515 (1989); 

Gerald Torres & Nathan Bellinger, The Public Trust Doctrine: The Law’s 

DNA, 4 Wake Forest J.L. & Pol’y 281 (2014). But conservative scholars 

and others want to petrify or at least embalm the public trust doctrine. 

See James L. Huffman, Why Liberating the Public Trust Doctrine is Bad for 

the Public, 45 Env’t Law 337 (2015). 

Ordinarily, courts do not develop doctrine on uncontested issues, 

and ordinarily I would not opine on them. However, if pushed into a corner 

by a majority that insists on proceeding to develop the contours of the 

public trust doctrine notwithstanding the State’s concession, I would 

declare that the public trust doctrine applies to pollution of navigable 

waterways in a fashion that prevents or significantly impairs recreational 

activities and the use of water for drinking purposes. See Nat’l Audubon 

Soc’y v. Superior Ct., 658 P.2d 709, 712 (Cal. 1983) (applying public trust 

doctrine in environmental setting); In re Water Use Permit Applications, 9 

P.3d at 447 (holding that public trust applies to ground water and surface 

water); Lamprey v. Metcalf, 53 N.W. 1139, 1143 (Minn. 1893) (noting that 

public trust doctrine applies to use of waterways “and other public 

purposes which cannot now be enumerated or even anticipated”); Ralph 

W. Johnson, Water Pollution and the Public Trust Doctrine, 19 Env’t Law 

485, 493–98 (1989). 

In addition to these observations, I join in the dissent of Justice 

Oxley regarding the premature nature of the majority’s decision. I also 

incorporate my dissent in State ex rel. Dickey v. Besler, which is dispositive 

on the political question issue posed in this case. 954 N.W.2d 425, 439–

49 (Iowa 2021) (Appel, J., dissenting). 

For the above reasons, I dissent. 
37 

#19–1644, ICCI, et al. v. State, et al. 

McDONALD, Justice (dissenting).

The public trust doctrine is of long standing. The “doctrine is said 

to be traceable to the work of Emperor Justinian, based on the notion that 

the public possesses inviolable rights to certain natural resources.” State 

v. Sorensen, 436 N.W.2d 358, 361 (Iowa 1989). “The doctrine was adopted 

into the English common law and embraced by nineteenth century 

American jurists.” Id. Under the doctrine, “the interest of state 

government in public trust land is, in a sense, only that of a steward.” Id. 

This stewardship is “a burden, rather than a benefit.” Id. Historically, the 

public trust doctrine “has [had] a narrow scope.” Fencl v. City of Harpers 

Ferry, 620 N.W.2d 808, 813 (Iowa 2000) (en banc). As the majority 

correctly notes, the doctrine has been limited to protecting the public’s 

access to public waters and to preventing the state from alienating lands 

held in the public trust. See Larman v. State, 552 N.W.2d 158, 161 (Iowa 

1996). It is not disputed that private citizens have standing to sue for 

violations of the public trust doctrine, as traditionally understood. See, 

e.g., Bushby v. Wash. Cnty. Conservation Bd., 654 N.W.2d 494, 497 (Iowa 

2002) (holding private citizens had standing under the public trust 

doctrine and resolving the case on the merits); Witke v. State Conservation 

Comm’n, 244 Iowa 261, 271–72, 56 N.W.2d 582, 588–89 (1953) (reaching 

merits of the claim and stating “the state may not restrict or charge for the 

use of the waters of navigable streams or lakes, and an attempt on its part 

to do so is a deprivation of the citizen of his property without due process 

of law, and without compensation, and so in violation of Sections 9 and 18 

of Article I of the Constitution of Iowa”). 

In this case, the plaintiffs seek to channel the traditional 

understanding of the public trust doctrine in a new direction. They claim 
38 

the doctrine imposes upon the State, as steward of lands held in the public 

trust, an affirmative obligation to protect the public use of navigable waters 

and to prevent the substantial impairment of navigable waters. They 

further claim the State has violated this affirmative duty by allowing 

nitrogen and phosphorous discharges from agricultural sources to impair 

the recreational and drinking water uses of the meandered section of the 

Raccoon River. The plaintiffs claim the State’s failure to act under these 

circumstances constitutes a violation of the public trust doctrine and 

constitutes a taking of their constitutionally-protected property interest in 

public lands. See, e.g., Witke, 244 Iowa at 272, 56 N.W.2d at 589 (holding 

the state’s restriction of access to navigable streams or lakes “is a 

deprivation of the citizen of his property without due process of law”). 

Whether the public trust doctrine can be channeled in this new 

direction is not properly before this court. In navigating this case, the 

State, for whatever reason, chose to not challenge the merits of the 

plaintiffs’ claims in the district court or on appeal. The Solicitor General 

made this clear during oral argument, stating, “Let me be clear that—that 

these issues about the public trust doctrine are specifically not before the 

court right now.” Thus, for the purposes of resolving this appeal involving 

only the standing doctrine and the political questions doctrine, we must 

assume the public trust doctrine is as broad as the plaintiffs claim. 

The State’s decision to forego any substantive challenge to the merits 

of the plaintiffs’ claims, in my view, largely resolves this appeal. If private 

citizens have standing to sue for violations of the public trust doctrine as 

traditionally understood, see Witke, 244 Iowa at 272, 56 N.W.2d at 589, it 

stands to reason the same private citizens have standing to sue for 

violations of the public trust doctrine as they seek to expand it. At 

minimum, the plaintiffs have standing to pursue declaratory relief. The 
39 

Solicitor General conceded this during oral argument: “I will have to 

concede that when we talk about redressability and causal connection to 

the injury . . . I think I’d have to concede you could get to, if you wanted 

to, a declaratory order of some sort . . . .” In the procedural posture 

presented, on this record, I agree with the Solicitor General that, at 

minimum, the plaintiffs have sufficient standing to pursue some form of 

limited relief. 

The majority raises a host of legitimate concerns regarding the 

constitutionality, feasibility, and efficacy of potential remedies. I share 

those concerns. And, perhaps, those concerns militate against expansion 

of the public trust doctrine. But, for now, this case is at the headwaters. 

The State has conceded, for now, the public trust doctrine goes as far as 

the plaintiffs contend. In the procedural posture presented, the plaintiffs 

have thus asserted a cognizable legal claim. “[A] plaintiff . . . has what we 

have come to call ‘standing,’ whenever he has a legally cognizable cause of 

action, regardless of whether he can show a separate, stand-alone factual 

injury.” Sierra v. City of Hallandale Beach, 996 F.3d 1110, 1115 (11th Cir. 

2021) (Newsom, J., concurring); id. at 1131 (“The question whether a 

plaintiff has ‘standing’ really just boils down to the question of whether he 

has a cause of action—whether his legal rights have been infringed and 

whether the positive law authorizes him to sue for that infringement.”). 

The State has conceded, for now, the plaintiffs at least have standing to 

pursue some limited relief under an expanded public trust doctrine. What 

relief exactly—and the constitutionality, feasibility, and efficacy of that 

relief—are best worked out in the district court on a better record and with 

fuller briefing. 
40 

For these reasons, I would affirm the judgment of the district court, 

remand this matter, and allow the case to continue downstream. I 

respectfully dissent. 

Oxley, J., joins this dissent. 
41 

#19–1644, ICCI, et al. v. State, et al. 

OXLEY, Justice, (dissenting).

Ours is an adversarial system, and the court’s role is to decide the 

issues as presented by the parties.9 Yet the State has put us between the 

proverbial rock and a hard place by insisting it is not challenging the scope 

of the public trust doctrine, its imposition of affirmative obligations on the 

State, or its constitutional underpinnings. Protestations notwithstanding, 

the majority necessarily decides those issues in concluding the plaintiffs 

lack standing and raise only nonjusticiable political questions. 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. Given 

the posture of this appeal, I respectfully dissent. 

The plaintiffs assert that the constitutionally-based public trust 

doctrine protects their right to use the Raccoon River for recreation and 

drinking water purposes; those uses are being harmed by pollution in the 

river, specifically harmful levels of nitrates that exceed acceptable levels 

identified by legislative and executive bodies; the State has an affirmative 

obligation to protect the plaintiffs’ rights against that pollution; and the 

State has failed to meet those affirmative obligations where it relies only 

on voluntary compliance efforts to convince agricultural nonpoint sources 

to reduce the amounts of nitrogen and phosphorus used as fertilizer that 

make their way into the river. The plaintiffs seek a declaration of their 

constitutional rights, the State’s obligations to protect those rights, and 

whether the State has breached those obligations. The plaintiffs also seek 

 

9See State v. Struve, 956 N.W.2d 90, 99 n.2 (Iowa 2021) (“[O]ur system ‘is designed 

around the premise that [parties represented by competent counsel] know what is best 

for them, and are responsible for advancing the facts and argument entitling them to 

relief.’ ” (alteration in original) (quoting United States v. Sineneng-Smith, 590 U.S. ___, ___, 

140 S. Ct. 1575, 1579 (2020))). 
42 

a declaration that the State’s adoption of the voluntary strategy as the 

official policy of the State for addressing nitrate levels in navigable waters 

violates the State’s obligations under the doctrine and an injunction 

requiring state officials to take action to reduce nitrate levels. 

Despite its origins related to navigation and commerce, we have 

expanded the public trust doctrine “to safeguard the public’s use of 

navigable waters for purely recreational and non-pecuniary purposes.” 

Robert’s River Rides, Inc. v. Steamboat Dev. Corp., 520 N.W.2d 294, 299 

(Iowa 1994), abrogated on other grounds by Barreca v. Nickolas, 683 

N.W.2d 111, 121 (Iowa 2004); see also State v. Pettijohn, 899 N.W.2d 1, 35 

(Iowa 2017) (describing recreational use of navigable waters as a 

“ ‘paramount’ right” under the public trust doctrine); McCauley v. Salmon, 

234 Iowa 1020, 1022, 14 N.W.2d 715, 716 (1944) (“The right of the public 

to navigate the water is paramount. This includes the right of fishing, 

boating, skating and other sports.” (citations omitted)). And we have 

allowed private citizens to assert rights under the doctrine. See, e.g.,

Bushby v. Wash. Cnty. Conservation Bd., 654 N.W.2d 494, 496–97 (Iowa 

2002); Witke v. State Conservation Comm’n, 244 Iowa 261, 263–64, 56 

N.W.2d 582, 584–85 (1953). Here, the plaintiffs seek to extend the 

doctrine to impose an obligation on the State to protect navigable waters 

from effective alienation through pollution. And, critical to our resolution 

of the specific issues before us, the State accepts the plaintiffs’ position as 

an acceptable extension of the public trust doctrine. 

The majority makes a principled argument that the public trust 

doctrine does not impose such affirmative obligations on the State and 

that even if it did, the doctrine does not provide private parties with a cause 

of action to enforce any such affirmative obligations. The problem is that 

the parties do not address the scope of the public trust doctrine or whether 
43 

it provides a cause of action for the plaintiffs. Indeed, the State insists its 

position assumes the doctrine applies as broadly as the plaintiffs assert. 

As Justice McDonald points out, the Solicitor General reinforced its 

position during oral argument. The State, as part of its litigation strategy, 

made a decision to not challenge the merits of the public trust doctrine as 

articulated by the plaintiffs. Thus, for the purposes of resolving this 

motion to dismiss, we must assume the public trust doctrine is as broad 

as the plaintiffs claim. 

The majority refuses to do that. That the majority has decided the 

merits of the public trust issue is best seen in its discussion of the political 

question doctrine, explaining it is “not persuaded” that the plaintiffs have 

made a showing of a deprivation of their own individual constitutional 

rights, thereby distinguishing Luse v. Wray, 254 N.W.2d 324, 327–28 (Iowa 

1977) (en banc). The majority must do so because “the judiciary’s power 

to interpret the constitution and to review the constitutionality of the laws 

and acts of the legislature does not offend [political question] principles.” 

King v. State, 818 N.W.2d 1, 17 (Iowa 2012) (citing Luse, 254 N.W.2d at 

327–28 and Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177–78 (1803)). 

Rather, “it is a matter for the judiciary to pass upon the constitutionality 

of the official and specific acts of the other departments of government.” 

Luse, 254 N.W.2d at 327 (quoting 16 C.J.S. Constitutional Law § 144, at 

688). This principle holds true in the context of asserted violations of the 

public trust doctrine. See, e.g., Kanuk ex rel. Kanuk v. State, Dep’t of Nat. 

Res., 335 P.3d 1088, 1099 (Alaska 2014) (explaining that “[t]he Baker

factors for identifying non-justiciable issues do not apply to judicial 

interpretations of the constitution” and holding a request for declaratory 

judgment that the atmosphere is part of the public trust, that the state 

has an affirmative obligation to protect and preserve it, and that the state 
44 

failed to uphold its fiduciary obligations did not present political 

questions); Butler ex rel. Peshlakai v. Brewer, No. 1 CA–CV 12–0347, 2013 

WL 1091209, at *5 (Ariz. Ct. App. Mar. 14, 2013) (“Not only is it within the 

power of the judiciary to determine the threshold question of whether a 

particular resource is a part of the public trust subject to the Doctrine, 

but the courts must also determine whether based on the facts there has 

been a breach of the trust.”); Chernaik v. Kitzhaber, 328 P.3d 799, 804–08 

(Or. Ct. App. 2014) (holding a request for declaratory judgment on whether 

the atmosphere is subject to the public trust doctrine is justiciable and 

remanding to the trial court to make that determination in the first 

instance)10. 

In King v. State, we addressed whether the plaintiffs’ attempts to 

judicially impose state-mandated public school education standards as a 

means of protecting their claimed constitutional rights were nonjusticiable 

only after first determining that the plaintiffs failed to state claims for relief 

under the education clauses of the Iowa Constitution. See 818 N.W.2d at 

16. As we explained, “the political question grounds and the failure to 

state a claim grounds are interrelated.” Id. at 12. There, unlike here, the 

defendants had argued to the district court that the plaintiffs’ 

 

10The majority’s insistence we “can do better” than Oregon in its decade-long 

litigation that resulted in the less-than-satisfying “symbolic” declaration of the extent of 

the public trust doctrine’s scope, see Chernaik v. Brown, 475 P.3d 68, 71–72 (Or. 2020), 

not only places the majority in the adversary’s role but also ignores critical distinctions 

between the greenhouse gas emission cases attempting to extend the public trust doctrine 

to cover the atmosphere cited by the majority and the already-established protections for 

recreational use of navigable water involved here. Cf. Kanuk, 335 P.3d at 1103 

(distinguishing between requests to extend public trust doctrine to cover atmosphere as 

a natural resource and claims premised on detrimental impacts on “already-recognized 

public trust resources such as water, shorelines, wildlife, and fish”). Despite the 

majority’s apparent skepticism of the plaintiffs’ position, we must also accept the detailed 

pleaded facts as true for purposes of reviewing the defendants’ motion to dismiss. See 

Hawkeye Foodservice Distrib., Inc. v. Iowa Educators Corp., 812 N.W.2d 600, 604 (Iowa 

2012).
45 

constitutional claims failed as a matter of law, which allowed us to address 

the contours of the constitutional claims on appeal. Id. at 11. 

Faced with this dilemma, the majority effectively holds the plaintiffs 

lack a private cause of action because “the substantive basis for their 

claims remains the public rights[11] doctrine,” which “by definition, involves 

rights that belong to the public as a whole.” Despite no briefing or 

argument by the parties, the majority has eviscerated any claim that the 

public trust doctrine provides a private cause of action for private citizens. 

And if holding no cause of action exists is not addressing the merits of the 

plaintiffs’ claims, it is hard to imagine what would be. 

We have never held that the public trust doctrine cannot serve as 

the basis of individual constitutional rights. We have, however, held that 

plaintiffs seeking to extend the public trust doctrine to natural resources 

other than navigable waters had standing to challenge a conservation 

board’s plans to cut down trees in a public park, ultimately concluding 

nonetheless that the doctrine did not extend to management of forested 

areas. See Bushby, 654 N.W.2d at 496–98. 

In White Bear Lake Restoration Ass’n ex rel. State v. Minnesota 

Department of Natural Resources, the Minnesota Supreme Court started 

by addressing the scope of its public trust doctrine, concluding it was “not 

inclined to extend the public trust doctrine” to cover the plaintiffs’ claims 

before then discussing the heavy regulation of the field of public water as 

supporting the decision not to extend the common law absent a compelling 

reason to do so. See 946 N.W.2d 373, 386–87 (Minn. 2020). Given the 

 

11The majority’s reference to the “public rights doctrine,” something different than 

the public trust doctrine, does not make its analysis any less dependent on the merits of 

the plaintiffs’ claim. A doctrine not discussed by the parties, we have never used the 

public rights doctrine to deny a citizen the right to hold the state to its obligations under 

the public trust doctrine not to alienate the public’s rights to access and use navigable 

waters. 
46 

structure put in place to balance the various priorities involved, and the 

fact that the plaintiffs had not alleged any private encroachment, the court 

saw “no need to extend the judiciary’s common-law role in this instance.” 

Id. at 386 (emphasis added). That court’s discussion of the heavilyregulated field of water rights weighed into the issue of whether to 

recognize a new cause of action; it did not preclude the judiciary’s 

consideration of the cause of action altogether. Notably, other states have 

recognized “[p]reventing pollution and protecting the quality of the waters 

of the state . . . as being part of the state’s affirmative duty under the 

‘public trust’ doctrine.” Wis. Env’t Decade, Inc. v. Dep’t of Nat. Res., 271 

N.W.2d 69, 76 (Wis. 1978); see also Ralph W. Johnson, Water Pollution 

and the Public Trust Doctrine, 19 Env’t L. 485, 488 & n.13 (1989) (“[I]n 

recent years, courts have increasingly identified water quality as a 

separate or specific, rather than derivative, interest protected by the public 

trust doctrine.” (citing Nat’l Audubon Soc’y v. Superior Ct., 658 P.2d 709 

(Cal. 1983))). 

We engaged in a similar analysis in Bushby v. Washington County 

Conservation Board, 654 N.W.2d 494. Contrary to the majority’s 

characterization of Bushby, we did not reject the plaintiffs’ claim because 

the county supervisors were entitled to deference. Rather, we first 

determined that the public trust doctrine, which had originally applied to 

beds of navigable waters and had been expanded to include recreational 

use of lakes and rivers, should not be extended to apply to management 

of forested areas of public lands. Id. at 497–98. That expansion would 

have gone well beyond the navigable water baseline (one might say the 

doctrine’s high water mark) that undergirds our understanding of the 

public trust doctrine, even as we have expanded its scope within the 

confines of navigable waters. See id. It was only after determining the 
47 

limits of the doctrine that we then concluded it could not serve as an 

impediment to a public body’s otherwise lawful management of public 

lands. Id. Bushby establishes that the scope of the public trust doctrine 

determines whether it could serve as a limit on the management of certain 

natural resources, which necessarily requires a determination of whether 

the doctrine applies to the particular controversy at issue. If it does, then, 

like any other constitutionally protected right, this court has the ability, 

indeed the responsibility, to determine if the state’s actions have violated 

those rights. 

The majority uses this same reasoning from White Bear and Bushby

but repackages it—purportedly without first deciding the merits of the 

public trust doctrine—to support its assertion that the plaintiffs’ requested 

declaratory and injunctive relief is too speculative by encroaching on the 

legislative and executive branches’ balancing of uses for water in the 

Raccoon River between farmers’ economic interests and the plaintiffs’ 

interests, surmising the plaintiffs’ requested relief could ultimately lead to 

even higher out-of-pocket expenditures for the plaintiffs’ members. While 

giving lip service to the doctrinal notion that “standing does not depend on 

the legal merits of a claim,” Godfrey v. State, 752 N.W.2d 413, 420 (Iowa 

2008), the majority necessarily addresses the merits by basing its standing 

holding on the premise that the public trust doctrine does not provide the 

protections the plaintiffs allege. In concluding we can offer no remedy, the 

majority has necessarily decided the doctrine does not extend to the 

plaintiffs’ claims. 

One more point from White Bear. Unlike the plaintiffs in White Bear, 

who did “not allege that the DNR has violated its duty as trustee to protect 

public use from ‘private interruption and encroachment,’ [a] core rationale 

of the [public trust] doctrine,” 946 N.W.2d at 386, here, the plaintiffs do
48 

allege that the State defendants violated their duty as trustee to protect 

public use of the Raccoon River from pollution caused by private parties, 

parties currently being regulated by the defendants. But the State’s 

litigation strategy not to challenge whether the plaintiffs have stated a 

claim in its motion to dismiss prevents us from reaching the merits of the 

plaintiffs’ public trust claim. Believing the case is doomed anyway, and 

attempting to “do better” than embroil our courts in a decades-long battle 

that will result in, at best, lackluster results for the plaintiffs, the majority 

short circuits the process based on its ultimate view of the case to order 

dismissal for lack of standing and the existence of nonjusticiable political 

questions. 

Given the entanglement between “the political question grounds and 

the failure to state a claim grounds,” King, 818 N.W.2d at 12, the State 

insisting it is not challenging the merits or constitutional underpinnings 

of the public trust doctrine precludes its justiciability argument. See Luse, 

254 N.W.2d at 327–28 (“Iowa courts have power to adjudicate substantial 

claims of deprivation of federal or Iowa constitutional rights . . . .”).12

With respect to standing, I believe the plaintiffs’ request for a 

declaration of their rights and the State’s obligations meets the 

redressability threshold, assuming redressability applies as the majority 

insists. See Kanuk, 335 P.3d at 1095 (rejecting redressability argument, 

explaining: “Assuming the existence of a fiduciary duty on the part of the 

State to protect a public resource, the duty would not seem to depend on 

 

12The majority dismisses the plaintiffs’ request for a declaration of their 

constitutional rights on the basis that State ex rel. Dickey v. Besler, 954 N.W.2d 425 (Iowa 

2021), too, involved constitutional issues, and that did not stop us from finding the claim 

to present a political question. But Besler involved a quo warranto action where a private 

citizen, Gary Dickey, challenged the public office held by another even though Dickey had 

no claim to the office. See id. at 430–31, 433–34. This is not just a case involving 

constitutional issues, but a claim that the State is violating the plaintiffs’ rights under 

the constitution. 
49 

the source of the threatened harm”). We have never shied away from 

declaring rights of beneficiaries and obligations of trustees. See, e.g., In re 

Steinberg Fam. Living Tr., 894 N.W.2d 463, 468 (Iowa 2017) (considering a 

declaratory judgment action to interpret a trust). And courts around the 

country recognize the importance of the judiciary’s role in defining the 

scope and applicability of the public trust doctrine. “Just as private 

trustees are judicially accountable to their beneficiaries for dispositions of 

the res, so the legislative and executive branches are judicially accountable 

for their dispositions of the public trust.” Ariz. Ctr. For L. In Pub. Int. v. 

Hassell, 837 P.2d 158, 169 (Ariz. Ct. App. 1991) (citation omitted) (“The 

check and balance of judicial review provides a level of protection against 

improvident dissipation of an irreplaceable res.”); see also Kootenai Env’t 

All., Inc. v. Panhandle Yacht Club, Inc., 671 P.2d 1085, 1092 (Idaho 1983) 

(“Final determination whether the alienation or impairment of a public 

trust resource violates the public trust doctrine will be made by the 

judiciary. . . . [T]his court will take a ‘close look’ at the action to determine 

if it complies with the public trust doctrine and it will not act merely as a 

rubber stamp for agency or legislative action.”); Op. of the Justs., 437 A.2d 

597, 607 (Me. 1981) (applying “a high and demanding standard of 

reasonableness” to judicial review of legislative action releasing state’s 

ownership of submerged and intertidal lands that were subsequently filled 

for compliance with the Legislative Powers Clause). As Justice McDonald 

also points out, the Solicitor General conceded at oral argument that the 

plaintiffs would have standing to pursue, at minimum, their claims for 

declaratory relief. 

Against this authority and the State’s concession, the majority’s 

dismissive characterization of the plaintiffs’ requested declaratory relief as 

too general rings hollow. It is not enough to say that protecting against 
50 

pollution is not alienating or limiting access to navigable waters; that 

would be addressing the merits of the plaintiffs’ claims. 

With respect to the plaintiffs’ requested injunctive relief, the State is 

currently regulating the third-party nonpoint sources allegedly causing the 

nitrate pollution, but, according to the plaintiffs, they are doing so 

ineffectively through a voluntary compliance strategy. If a court struck 

the legislatively mandated adoption of the voluntary-based strategy as a 

violation of the public trust doctrine while also declaring the State has a 

constitutional obligation to manage pollution in the Raccoon River, 

removal of the statute would free state agencies to regulate storm runoff 

through a mandatory regime as requested by the plaintiffs. For purposes 

of a motion to dismiss, we “assume[] that the state will act in accordance 

with a judicially issued declaration regarding the scope of any duties that 

the state may have under the public trust doctrine.” Chernaik, 328 P.3d 

at 807; cf. Butler ex rel. Peshlakai, 2013 WL 1091209, at *6–8 (recognizing 

scope and enforcement of public trust doctrine is within court’s power to 

adjudicate but dismissing declaratory judgment claim challenging state 

agency’s failure to regulate greenhouse gas emissions for lack of a remedy 

where plaintiff failed to challenge constitutionality of the statute 

preventing state agencies from doing so absent express legislative 

authorization, similar to section 20 of Senate File 512 challenged here). 

The plaintiffs’ requested declaratory and injunctive relief, if granted, would 

provide sufficient redressability for the plaintiffs’ claimed injuries to meet 

constitutional standards. 

The State’s insistence that, for purposes of its motion to dismiss, the 

public trust doctrine grants the rights and imposes the obligations 

asserted by the plaintiffs requires us to affirm the district court’s denial of 

the State’s motion to dismiss and allow the case to proceed. 
51 

I therefore respectfully dissent. 

Appel, J., joins this dissent.