1Complications from an automobile accident have prevented Judge Gibson from

reviewing this opinion prior to its being filed. The opinion is consistent with Judge

Gibson's vote at conference. 

2The Honorable Ross A. Walters, Chief United States Magistrate Judge for the

Southern District of Iowa, presiding with the consent of the parties pursuant to 28

U.S.C. § 636(c).

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 99-3778

___________

Robert Milligan, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the 

* Southern District of Iowa

City of Red Oak, Iowa, *

* [PUBLISHED]

Appellee. *

___________

Submitted: May 11, 2000

Filed: October 16, 2000

___________

Before BOWMAN, FLOYD R. GIBSON,1 and LOKEN, Circuit Judges.

___________

PER CURIAM

Robert Milligan appeals the District Court's2 dismissal of his complaint against

the city of Red Oak, Iowa, in which Milligan alleged a taking of his property by the city
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in violation of the Public Use Clauses of the United States and Iowa Constitutions.

Milligan sought to permanently enjoin the city from taking his property through

condemnation proceedings, arguing that the proposed taking was not for a public

purpose. The parties consented to proceed before a magistrate judge, who entered

findings of fact, conclusions of law, and judgment dismissing Milligan's complaint.

Milligan appeals, and we affirm. 

I. BACKGROUND

Milligan owns a parcel of agricultural land in unincorporated Montgomery

County, Iowa, adjacent to the Red Oak Municipal Airport. Milligan acquired his

interest in this land in the mid-1980s from his parents who had owned the farm since

the early 1960s. The city acquired easements over portions of Milligan's land in 1964

when the airport was initially developed. Although zoned for industrial use, the

property had been used agriculturally both before and subsequent to its acquisition by

his parents. Milligan currently uses a portion of his farm for hog production and the

remainder for grain production. 

In an expansion of his hog operation in the mid-1980's, Milligan added to his

farm new buildings, a waste treatment facility, and an anaerobic hog manure lagoon.

As part of this expansion, Milligan and the city negotiated a wastewater treatment

contract. Shortly thereafter, the city determined that the strength of the waste

discharged from the farm was in excess of that contemplated by the city in entering the

agreement and in excess of the city wastewater treatment plant's capacity.

Accordingly, the city refused to accept any additional animal waste from the farm.

Milligan proposed to meet the farm's waste disposal needs through the construction of

an additional, much larger anaerobic hog manure lagoon. He proposed to locate this

lagoon on an area of his land contiguous with the airport, part of which extended into

the space between two runways. Milligan sought and obtained approval from the Iowa
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Department of Natural Resources (DNR) for the construction of this lagoon. The

location of the lagoon was chosen based on DNR setback requirements.

After Milligan received the permit from DNR, but before substantial construction

began, Montgomery County requested that Milligan obtain a special use permit.

Milligan ceased further construction and filed suit in the Iowa district court for

Montgomery County requesting a declaratory judgment that his use of his property was

exempt from county zoning under Iowa Code § 335.2. The Iowa district court ruled

that construction of the lagoon was an agricultural purpose exempt from county zoning

ordinances, therefore requiring no special use permit.

While the declaratory judgment action was pending, the city filed a petition

against Milligan in the Iowa district court for Montgomery County seeking temporary

and permanent injunctions against construction of the lagoon. The city alleged

interference with its easement and violation of city zoning ordinances concerning the

airport hazard areas. Milligan answered that the easement obtained by the city in 1964

had been abandoned as a result of airport improvements in 1987. The city put forth

two arguments in support of its claims. First, the easement, which was originally taken

as a runway clear zone, continued to exist as an airport hazard area. Second, Milligan's

proposed lagoon threatened airport safety because it would attract birds and waterfowl

to the area of the runways and it would obstruct pilots' view of the other runway.

Following a trial on this matter, the Iowa district court granted the injunction

prohibiting construction of the lagoon because it would encroach on the city's valid

easement. Additionally, the court found that the lagoon would not constitute a safety

hazard because it would not attract birds or waterfowl. 

Following the Iowa district court's second ruling, Milligan reconfigured his

proposed lagoon and applied to DNR for a supplemental permit based on his revised

plans for the lagoon. While that application was pending and unknown to Milligan, the

Red Oak City Council passed a resolution authorizing the city to purchase or condemn
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an easement over approximately 30 additional acres of Milligan's land as airport hazard

areas. The area to be purchased or condemned included the entire area where the

proposed lagoon was to be located. The DNR subsequently issued the supplemental

permit authorizing construction of the revised lagoon, after being fully advised by both

Milligan and opponents of the lagoon. 

Approximately five months later, the city sent Milligan a letter offering to

purchase a negative easement that would restrict use of the 30 acres to row crop

farming. The city stipulated that if Milligan did not accept this offer, the city would

commence condemnation proceedings to obtain the easement. 

Milligan filed this case against the city in the United States District Court for the

Southern District of Iowa approximately two weeks after receiving the abovementioned letter. He requested temporary and permanent injunctions prohibiting the

condemnation, alleging that the proposed condemnation amounted to an

unconstitutional taking of his property because it lacked a valid public purpose.

Specifically, he argued that the city's stated purpose for acquiring the easement, to

avoid the airport safety hazard that allegedly would result from bird and waterfowl

attraction to the lagoon, was not a proper basis for a condemnation action. Milligan

cited the Iowa district court's previous ruling that the lagoon would not constitute such

a hazard, arguing that the city was precluded from relitigating the same issue. In the

alternative, he argued that no public purpose would be served by the taking because the

city could not reasonably expect to achieve its goal of improving airport safety by

prohibiting construction on the proposed easement area. After a two-day bench trial,

at which the District Court received evidence on and considered the issue of whether

the lagoon would pose a threat to airport safety by attracting birds, the District Court

issued findings of fact and conclusions of law resolving the issue in favor of the city,

and entered judgment denying Milligan's requested relief and dismissing the complaint.
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Milligan filed this appeal, raising two issues for reversal. First, he argues that

the doctrine of issue preclusion estops the city from raising the issue of airport safety,

based on the attraction of birds to Milligan's proposed lagoon, because in the prior

proceeding a state court found no airport safety hazard. Second, he argues that the

proposed condemnation of Milligan's property is not rationally related to the public

purpose of promoting airport safety and that the city could not reasonably expect the

taking to achieve that public purpose.

II. DISCUSSION

We review the District Court's findings of fact for clear error and its conclusions

of law de novo. See Planned Parenthood of Greater Iowa, Inc. v. Atchison, 126 F.3d

1042, 1048 (8th Cir. 1997). 

A. Public Purpose

The United States Constitution, Amendments 5 and 14, and the Iowa

Constitution, Article I, Section 18, provide that the taking of private property by the

government must be for a public purpose and that just compensation shall be paid to

the owner. Iowa law grants cities the power to take private property, so long as the

taking is for a public purpose and is reasonable and necessary. See Iowa Code

§ 6A.4(6) (1999); Comes v. City of Atlantic, 601 N.W.2d 93, 95 (Iowa 1999). Iowa

law thus follows a two-step analysis, looking first at whether the purpose is for a public

use, and then at the connection between the purpose and the means. Vittetoe v. Iowa

S. Utils. Co., 123 N.W.2d 878 (Iowa 1963). The federal constitutional analysis of

public use similarly requires two steps: whether the use is legitimate and public in

nature, and whether the means are rational. See Hawaii Hous. Auth. v. Midkiff, 467

U.S. 229, 242-43 (1984). 
3This statute provides as follows. 

It is hereby found that an airport hazard endangers the lives and property

of users of the airport and of occupants of land and other persons in its

vicinity, and also, if of the obstruction type, in effect reduces the size of

the area available for the landing, taking off and maneuvering of aircraft,

thus tending to destroy or impair the utility of the airport and the public

investment therein. Accordingly, it is hereby declared:

 1. That the creation or establishment of an airport hazard is a public

nuisance and an injury to the community served by the airport in question.

 2. That it is necessary in the interest of the public health, safety, and

general welfare that the creation or establishment of airport hazards be

prevented.

 3. That this should be accomplished, to the extent legally possible, by

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We conduct our analysis of whether the city's proposed purpose is public in

nature in the same manner whether under Iowa or federal law. The United States

Supreme Court has "held that the public use requirement of the Takings Clause is

coterminous with the regulatory power, and that the Court will not strike down a

condemnation on the basis that it lacks a public use so long as the taking 'is rationally

related to a conceivable public purpose.' " National R.R. Passenger Corp. v. Boston

& Me. Corp., 503 U.S. 407, 422 (1992) (emphasis added) (quoting Midkiff, 467 U.S.

at 241). It is within the legislative province to determine in the first instance whether

a use is public in nature, which determination should not be disturbed by the courts

"unless it is clear, plain and palpable it is private in character." Vittetoe, 123 N.W.2d

at 880. Legislation calling for condemnation enjoys the same presumption in its favor

as when the constitutionality of a statute is challenged. See Abolt v. City of Fort

Madison, 108 N.W.2d 263, 268 (Iowa 1961). In this case, the city clearly has authority

as well as a legitimate interest in regulating airport safety. The Iowa legislature has

declared airport hazards to be a public nuisance, and that activities to prevent or

eliminate such hazards are necessary to accomplish the public purpose of public health,

safety, and general welfare. See Iowa Code § 329.2 (1999).3

 The city's stated purpose
proper exercise of the police power.

 4. That the prevention of the creation or establishment of airport hazards,

and the elimination, removal, alteration, mitigation, or marking and

lighting of existing airport hazards are public purposes for which

municipalities may raise and expend public funds, as an incident to the

operation of airports, to acquire land or property interests therein.

Iowa Code § 329.2 (1999). 

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in acquiring a negative easement over Milligan's land, to avoid the creation of an airport

safety hazard, is a public purpose and provides a basis for a condemnation action under

both federal and Iowa law. 

While federal constitutional analysis requires that condemnation of private

property must be rationally related to the public purpose for which it is taken, Iowa law

provides that such a taking must be "necessary" to accomplish the public purpose. See

Iowa Code § 6A.4 (1999). The Iowa test for necessity is whether the condemning

authority can reasonably expect to achieve its public purpose. See Mann v. City of

Marshalltown, 265 N.W.2d 307, 315 (Iowa 1978). The plaintiff bears the burden to

disprove this. See id. Federal constitutional analysis requires merely that the

" '[l]egislature rationally could have believed' " that its act would carry out the public

purpose. Midkiff, 467 U.S. at 242 (emphasis omitted) (quoting Western & S. Life Ins.

Co. v. State Bd. of Equalization, 451 U.S. 648, 672 (1981)). The City Council's

decision to acquire or condemn an easement limiting the use of the portion of Milligan's

land adjacent to the airport to row crop farming in order to carry out the city's

responsibility to provide for airport safety meets both the rational relationship and

necessity tests. 

In Milligan's brief, he mentions in passing that the city's stated public purpose

is simply a pretext for achieving a private purpose. The District Court rejected this

argument, finding that the standard for judging whether the City Council's purpose is
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public is an objective one. See Milligan v. City of Red Oak, No. 1-98-CV-10010, at

22 (S.D. Iowa Aug. 23, 1999) (Findings of Fact, Conclusions of Law and Order for

Judgment). Were we to decide the issue, we are inclined to think we would agree with

the District Court. But inasmuch as Milligan's brief does not support his assertion with

any argument or legal authority, he has waived the issue and we do not address it. See

Stephenson v. Davenport Community Sch. Dist., 110 F.3d 1303, 1306-07 n.3 (8th Cir.

1997). 

B. Issue Preclusion

Milligan argues that the District Court is precluded from retrying the factual issue

of whether his proposed lagoon would attract birds and thus create an airport hazard

because the Iowa district court, in a prior case between the same parties, tried this issue

and found that the lagoon posed no threat to airport safety. We disagree. 

Issue preclusion prevents a party to a prior action from relitigating issues that

were raised and resolved in the previous action. See, e.g., Hunter v. City of Des

Moines, 300 N.W.2d 121, 123 (Iowa 1981). State legislative acts and judicial

decisions "have the same full faith and credit in every court within the United States .

. . as they have by law or usage in the courts of such State . . . from which they are

taken." 28 U.S.C. § 1738 (1994); accord Haberer v. Woodbury County, 188 F.3d 957,

961 (8th Cir. 1999). Iowa law requires that four conditions be met before an Iowa

court may apply the doctrine of issue preclusion: " '(1) the issue determined in the prior

action is identical to the present issue; (2) the issue was raised and litigated in the prior

action; (3) the issue was material and relevant to the disposition in the prior action; and

(4) the determination made of the issue in the prior action was necessary and essential

to that resulting judgment.' " Dettmann v. Kruckenberg, 613 N.W.2d 238, 244 (Iowa

2000) (quoting American Family Mut. Ins. Co. v. Allied Mut. Ins. Co., 562 N.W.2d

159, 163- 64 (Iowa 1997)); accord North Star Steel Co. v. MidAmerican Energy
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Holdings Co., 184 F.3d 732, 737 (8th Cir. 1999). Failure of any of these four

conditions prevents the application of issue preclusion. 

The issues of whether birds would be attracted to Milligan's proposed lagoon,

and whether this would constitute an airport hazard, were raised and resolved in the

state court. These same issues were raised in the District Court. The dispositive

issues, however, in the two proceedings were not identical because different lagoon

configurations were presented to the state and federal courts and because the state court

found not a water fowl hazard but a pilot visibility hazard. On the basis of that finding,

the state court granted the city's motion for an injunction prohibiting Milligan from

constructing his lagoon as it was then planned. Therefore, inasmuch as the issues in

the two judicial proceedings were not identical, the doctrine of issue preclusion is

inapplicable.

More to the point, however, the District Court in any event was not reviewing

the state judicial decision. Instead, its review was of a subsequent finding of the Red

Oak City Council, a legislative body, that the lagoon would create a water fowl hazard

to aviation. We have been shown no authority, and are unaware of any, for the

proposition that through collateral estoppel a finding made in a judicial decision can

preclude a legislative body from later making a contrary finding. As stated earlier in

this opinion, the city's action taken in the interest of airport safety meets both the

federal rationally-related standard and the more stringent Iowa reasonably-expect-toachieve standard, and therefore must be sustained.

III. CONCLUSION

For the reasons stated, Milligan's arguments for reversal lack merit.

Accordingly, the judgment of the District Court is affirmed.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.