IN THE SUPREME COURT OF IOWA

No. 16–0076

Filed January 27, 2017

BOARD OF WATER WORKS TRUSTEES OF THE CITY OF 

DES MOINES, IOWA, 

Appellant,

vs.

SAC COUNTY BOARD OF SUPERVISORS, AS TRUSTEE OF DRAINAGE 

DISTRICTS 32, 42, 65, 79, 81, 83, 86, and CALHOUN COUNTY 

BOARD OF SUPERVISORS and SAC COUNTY BOARD OF 

SUPERVISORS AS JOINT TRUSTEES OF DRAINAGE DISTRICTS 2 

AND 51 and BUENA VISTA COUNTY BOARD OF SUPERVISORS and 

SAC COUNTY BOARD OF SUPERVISORS AS JOINT TRUSTEES OF 

DRAINAGE DISTRICTS 19 AND 26 AND DRAINAGE DISTRICTS 64 

AND 105, 

Appellees.

Certified questions of law from the United States District Court for 

the Northern District of Iowa, Mark W. Bennett and Leonard T. Strand, 

United States District Court Judges. 

Water utility seeks monetary and injunctive relief from upstream 

drainage districts on claims arising from the cost to remove nitrates from 

drinking water. CERTIFIED QUESTIONS ANSWERED. 

John E. Lande, Richard A. Malm, and Colleen MacRae (until 

withdrawal) of Dickinson, Mackaman, Tyler & Hagen, P.C., Des Moines, 

for appellant. 
2

Michael R. Reck, Charles F. Becker, and Stephen H. Locher of 

Belin McCormick, P.C., Des Moines, and David Y. Chung of Crowell & 

Moring LLP, Washington, D.C., for appellees. 

James W. Carney of Carney & Appleby, PLC, Des Moines, for 

amicus curiae Iowa Drainage District Association. 

Joshua T. Mandelbaum of Environmental Law & Policy Center, 

Des Moines, for amicus curiae Environmental Law & Policy Center. 
3

WATERMAN, Justice.

This high-profile litigation pits one political subdivision of the State 

of Iowa against several other political subdivisions. The plaintiff is a

municipal waterworks; the defendants are upstream drainage districts 

and their trustees. The plaintiff provides drinking water to central 

Iowans and is suing for money damages and other remedies to recover its

costs to remove nitrates from Raccoon River water. The case was 

brought in federal court. Our role is simply to answer the following 

questions of Iowa law certified by that court. 

Question 1: As a matter of Iowa law, does the doctrine of implied 

immunity of drainage districts as applied in cases such as Fisher v. 

Dallas County, 369 N.W.2d 426 (Iowa 1985), grant drainage districts 

unqualified immunity from all of the damage claims set forth in the 

complaint (docket no. 2)? 

Answer: Yes. As explained below, drainage districts have a 

limited, targeted role—to facilitate the drainage of farmland in order to 

make it more productive. Accordingly, Iowa law has immunized drainage 

districts from damages claims for over a century. This immunity was 

reaffirmed unanimously by our court just over four years ago. 

Question 2: As a matter of Iowa law, does the doctrine of implied 

immunity grant drainage districts unqualified immunity from equitable 

remedies and claims other than mandamus? 

Answer: Yes. Again, Iowa precedent, reaffirmed unanimously by 

our court just four years ago, recognizes that drainage districts are 

immune from injunctive relief claims other than mandamus. 

Question 3: As a matter of Iowa law, can the plaintiff assert 

protections afforded by the Iowa Constitution’s inalienable rights, due 
4

process, equal protection, and takings clauses against drainage districts 

as alleged in the complaint? 

Answer: No. Although these constitutional clauses are 

fundamental to our freedom in Iowa, they exist to protect citizens against 

overreaching government. Generally, one subdivision of state 

government cannot sue another subdivision of state government under 

these clauses. And even if they could, an increased need to treat nitrates 

drawn from river water to meet standards for kitchen tap water would 

not amount to a constitutional violation. 

Question 4: As a matter of Iowa law, does the plaintiff have a 

property interest that may be the subject of a claim under the Iowa 

Constitution’s takings clause as alleged in the complaint? 

Answer: No, for the reasons discussed in the answer to 

Question 3. 

In the balance of this opinion, we will explain our reasoning behind 

these answers. We emphasize that our decision does not relate to other 

matters raised in the federal court litigation, including claims brought 

under federal law. 

I. Background Facts and Proceedings. 

To provide context for the certified questions, we adopt this

discussion from the federal court’s certification order. See Foley v. 

Argosy Gaming Co., 688 N.W.2d 244, 246 (Iowa 2004) (“We restrict our 

discussion to the facts provided with the certified questions.”).1 

A. The Des Moines Water Works. Plaintiff, the Board of Water 

Works Trustees of the City of Des Moines, Iowa, also known as the 

1We reiterate the certifying court’s disclaimer that no judicial fact-finding has 

occurred. The factual background is drawn from allegations of the pleadings that were 

admitted or denied for lack of information. 

 
5

Des Moines Water Works (DMWW), is a municipal water utility under 

Iowa Code chapter 388 (2015)2 that provides drinking water to an 

estimated half-million Iowans in the Des Moines area, both by direct 

service and wholesale service to other utilities and districts. DMWW 

obtains its water primarily from the Raccoon and Des Moines Rivers. 

The Raccoon River drains about 2.3 million acres from portions of 

seventeen Iowa counties, including Buena Vista, Sac, and Calhoun. It 

flows approximately 186 miles from its origin in Buena Vista County to 

its confluence with the Des Moines River, south of downtown Des 

Moines.

Under the Safe Drinking Water Act (SDWA) as amended in 1996, 

42 U.S.C. §§ 300f–300j (2012), DMWW is obligated to meet the maximum 

contaminant level standards set by the Environmental Protection Agency 

(EPA) in the water it serves to consumers. The SDWA is the key federal 

law for protecting public water supplies from harmful contaminants. 

Section 300g–1, as amended in 1996, directs the EPA to select 

contaminants for regulatory consideration based on occurrence, health 

effects, and meaningful opportunity for health risk reduction. 42 U.S.C. 

§ 300g–1(b). For each contaminant that the EPA determines requires 

regulation, the EPA must set a nonenforceable maximum contaminant 

level goal at a level that avoids known or anticipated adverse health 

effects and that allows an adequate margin of safety. Id. § 300g–

1(b)(4)(A). The EPA must then set an enforceable standard, a maximum 

contaminant level (MCL), as close to the goal as is feasible, using the best 

technology, treatment techniques, or other means available and taking 

costs into consideration. Id. § 300g–1(b)(4)(B). The maximum 

2All references are to the 2015 Code unless otherwise indicated. 

 
6

contaminant level for nitrate, promulgated in 2012 and currently in 

force, is 10 mg/L, close to the equivalent of ten parts per million. See

EPA, Table of Regulated Drinking Water Contaminants, 

http://www.epa.gov/ground-water-and-drinking-water/table-regulateddrinking-water-contaminants (last visited Jan. 12, 2017). Nitrate is a 

soluble ion of nitrogen, found in soil, which only leaves the soil when 

drawn out by the flow of water. See id. The health risks associated with 

nitrate contamination in drinking water include blue baby syndrome and 

potential endocrine disruption impacts. Id. 

In its complaint filed in federal court, DMWW states that from 

1995 to 2014, nitrate concentrations in the Raccoon River at the DMWW 

intake points exceeded the 10 mg/L standard for drinking water at least 

1636 days, or twenty-four percent of the time. In 2013 and 2014, the 

average nitrate concentration in the Des Moines and Raccoon Rivers was 

11.98 mg/L, the third highest average in the last forty years. Similarly, 

in September, October, November, and December 2014, the average 

nitrate concentration was 11.89 mg/L, 13.23 mg/L, 13.43 mg/L, and 

12.56 mg/L, respectively. 

DMWW states that it utilizes three water treatment plants to 

process source water into drinking water. These three treatment plants, 

the McMullen Plant, the Saylorville Plant, and the Fleur Plant, all draw 

water from the Raccoon River. DMWW has managed excess nitrates in 

the source water it processes in several ways. At the Fleur Plant, a 

fraction of the water undergoes an ion exchange process to remove 

nitrates and then is blended with filtered water to stay below the EPA’s 

10 mg/L standard. In addition to drawing water from the Raccoon River, 

the McMullen Plant draws water from Crystal Lake, a river-influenced 

surface water source managed to provide reduced-nitrogen water 
7

through natural biologic processes. DMWW also can blend the water 

from the McMullen Plant with nitrate-free water drawn from a reservoir 

used as an emergency backup water source. The Saylorville Plant is the 

only plant operated by DMWW that has a limited capacity to remove 

nitrates. 

Additionally, DMWW has an ion exchange nitrate-removal facility 

that it operates as needed at a cost of approximately $4000–$7000 per 

day.3 DMWW utilized its nitrate removal continuously due to excessive 

nitrate levels until March 10, 2015. The continuous operation for a total 

of ninety-six days is the longest in the history of the facility’s operation 

during the winter season. DMWW states that, due to the age and limited 

capacity of the existing nitrate-removal facility, it will need to design and 

construct a new nitrate-removal facility with a fifty-million-gallon-per-day 

capacity at a cost of between $76 million and $183.5 million before 2020. 

Operation and maintenance costs will be in addition to the initial 

estimated capital cost. 

B. The Drainage Districts. Drainage districts were instituted in 

Iowa to allow wetlands to be turned into productive farmland. The 

purpose of drainage districts in Iowa can be traced back to the late 

1800s and early 1900s. See Swamp Land Act of 1850, ch. 84, 9 Stat. 

519 (codified at 43 U.S.C. §§ 982–984 (2012)); Hatch, Holbrook & Co. v. 

Pottawattamie County, 43 Iowa 442 (1876); Iowa Const. art. I, § 18 (as 

amended in 1908). Vast areas of flatland could not be farmed due to 

inadequate drainage. Iowa Code chapter 468 and Iowa Constitution 

3It is unclear from DMWW’s filings whether this nitrate-removal facility is 

located at one of its water treatment plants or treats water received from all plants. 

DMWW indicates that its nitrate-removal facility removes nitrates from its finished 

water.

 
8

article I, section 18 govern drainage districts. Drainage districts enable 

property owners to jointly fund drainage improvements. See Fisher, 369 

N.W.2d at 428–29.

The right of a landowner to place tiles in swales or 

ditches to carry the water from ponds upon and onto lower 

lands . . . is necessary . . . in order that low and swampy 

lands may be reclaimed, and a denial thereof would be 

productive of incalculable mischief.

Dorr v. Simmerson, 127 Iowa 551, 553, 103 N.W. 806, 807 (1905). To 

establish a drainage district, at least two landowners must petition for its 

creation. Iowa Code § 468.6. The affairs of the drainage district are then

managed by the county board of supervisors in a representative capacity.

See, e.g., id. §§ 468.37, .89, .231, .232, .617. The board determines what 

improvements are needed. Id. § 468.126(1)(a). If the cost exceeds 

$50,000, a hearing is required to determine advisability of expenditure,

and an appeal is allowed. Id. § 468.126(1)(c). Improvements exceeding a 

certain amount can be stopped by a majority of landowners in the 

district through a process called remonstrance. Id. § 468.126(4)(c). 

Drainage districts “have only such [limited] power as the 

legislature grants them.” Reed v. Muscatine Louisa Drainage Dist. #13, 

263 N.W.2d 548, 551 (Iowa 1978). Iowa’s legislature concluded drainage 

from agricultural and other lands shall be presumed to benefit the 

public:

1. The drainage of surface waters from agricultural 

lands and all other lands, including state-owed lakes and 

wetlands, or the protection of such lands from overflow shall 

be presumed to be a public benefit and conducive to the 

public health, convenience, and welfare. 

2. The provisions of this subchapter and all other laws 

for the drainage and protection from overflow of agricultural 

or overflow lands shall be liberally construed to promote

leveeing, ditching, draining and reclamation of wet, swampy, 

and overflow lands.
9

Iowa Code § 468.2(1)–(2). 

The thirteen defendant drainage districts in this case are located in 

the North Raccoon watershed and the Des Moines Lobe geographic 

formation. The primary purpose of their drainage infrastructure is to 

remove water from agricultural lands. Private subsurface tiles convey 

water to other subsurface tiles, pipe, subsurface ditches, and channels 

created and maintained by the defendants, which in turn convey water to 

streams and rivers, and ultimately the Raccoon River. 

C. Procedural Background. The defendants filed motions for 

summary judgment seeking dismissal of DMWW’s federal court 

complaint on several grounds, including the immunities enjoyed by 

drainage districts under Iowa law. After the summary judgment motions 

were briefed and argued, the federal court instructed the parties to meet, 

confer, and come to an agreement on the identification and description of

state law issues that could be certified to the Iowa Supreme Court and 

also instructed the parties to explain whether they believed these issues 

should be certified. The parties filed a joint certification report. The 

parties agreed on the wording of the four questions, but disagreed as to 

whether the questions should be certified. The DMWW favored 

certification. The defendants argued against certification as unnecessary 

because controlling precedent answered the questions. 

D. The DMWW’s Claims. DMWW’s complaint alleges ten causes 

of action: Count I for violation of various federal statutes known as the 

Clean Water Act; Count II for violation of Iowa Code section 455B.186 (“A

pollutant shall not be disposed of by dumping, depositing, or discharging 

such pollutant into any water of the state . . . .”); Count III for public 

nuisance; Count IV for statutory nuisance; Count V for private nuisance; 

Count VI for trespass; Count VII for negligence; County VIII for taking 
10

without just compensation in violation of the Fifth Amendment of the 

United States Constitution as made applicable by the Fourteenth 

Amendment and article I, section 18 of the Iowa Constitution; Count IX 

for violation of the Due Process and Equal Protection Clauses of the 

Fourteenth Amendment of the United States Constitution and the due 

process and equal protection clauses of the Iowa Constitution; and 

Count X for permanent, prospective injunctive relief. 

DMWW essentially argues that the defendants are responsible for 

the increased nitrate concentrations in the Raccoon River. DMWW 

alleges it may be forced to construct a new, high-capacity nitrate-removal 

facility, to comply with the SDWA. DMWW’s state and federal 

constitutional liability theories are based on its claim that the drainage 

districts are responsible for the increased level of nitrates in the source 

water the DMWW must process. 

Against this backdrop, we turn to the certified questions, 

beginning with the threshold issue of whether we should elect to answer 

them. 

II. Our Discretion to Answer Certified Questions. 

The DMWW and the certifying federal court urge us to answer the 

four certified questions. The drainage districts, however, argue that we 

should decline to answer the questions on grounds that controlling 

precedent is determinative. “Iowa Code section 684A.1 allows this court 

to answer questions of Iowa law certified to us by a federal court that 

concludes controlling precedent is lacking when the answer may be 

determinative of the federal proceeding.” Oyens Feed & Supply, Inc. v. 

Primebank, 808 N.W.2d 186, 188 (Iowa 2011). In Foley, we noted our 

discretion to answer certified questions that (1) were certified by a proper 

court, (2) presented questions of Iowa law, (3) “may be determinative of 
11

the cause . . . pending in the certifying court,” and (4) appeared to the 

certifying court to have no controlling Iowa precedent. 688 N.W.2d at

246 (quoting Iowa Code § 684A.1 (2003)). 

The first three requirements are easily met here: the federal court 

certified four questions of Iowa law that, if resolved adversely to DMWW, 

would result in summary judgment dismissing its state law claims. “We 

do not have a situation where the answers to the questions are factdependent or the facts are in conflict. These are pure questions of law.” 

Iowa Right to Life Comm., Inc. v. Tooker, 808 N.W.2d 417, 427 (Iowa 

2011) (citations omitted) (distinguishing cases declining to answer 

certified questions that required resolution of factual disputes). It is the 

fourth requirement that gives us pause because, as the certifying court 

recognized, we have controlling precedent that resolves the questions in 

favor of the drainage districts, assuming that precedent remains good 

law. 

The federal court candidly acknowledged in its certification order

that if it did not certify the questions, it “would have to reject the 

thoughtful, creative, novel, and well-argued positions of DMWW as 

unsupported by Iowa law.” The court concluded that, given the public 

importance of the case it described as “one of first impression,” 

certification was appropriate to enable our court to decide the questions 

under our state law. 

We addressed the quandary of whether to answer certified 

questions despite controlling precedent in Foley, in which the first 

certified question asked, “Does the requirement of ‘special injury’ to state 

a claim for a malicious prosecution action still remain the law of Iowa?” 

688 N.W.2d at 246 (emphasis added). John Foley claimed the Argosy 

casino had wrongfully sued him in Illinois for making false statements. 
12

Id. at 245. Argosy voluntarily dismissed its Illinois lawsuit against Foley 

before trial. Id. Foley then sued Argosy in Iowa district court, alleging 

that “as a result of the Illinois suit, [his] insurance carrier declined to 

renew its policies and [he] lost financing on a real estate deal in 

Sioux City.” Id. at 245–46. Foley also claimed the lawsuit “caused him 

stress, exacerbating preexisting neck and back pain.” Id. Argosy 

removed the action to federal court and moved for summary judgment on 

grounds that Foley failed to allege a recognized type of “special injury,” 

such as an arrest or seizure of property, required to recover under Iowa 

law. Id. at 246. The federal court certified four questions to our court

asking whether the harm alleged by Foley was recoverable under Iowa 

law. Id. We observed that we first recognized the special injury 

requirement in 1884 and had reaffirmed it in numerous decisions

thereafter, most recently four years earlier. Id. at 246–47. Yet we noted 

Foley invited us to abandon the special-injury requirement. Id. at 247. 

We proceeded to answer the certified questions, stating, “[O]ne may 

always question whether a precedent is controlling by asking whether it 

remains the law; it is manifest that we are free to overrule precedents 

when circumstances warrant.” Id. at 247. We then applied our 

precedent to answer the certified questions. Id. at 247–49. 

As in Foley, the questions certified in this case can be answered by 

applying long-standing precedent first decided a century ago and 

reaffirmed repeatedly and as recently as four years ago. We take the 

same approach today as we did in Foley. The certifying court here, in its 

wisdom, defers to our judgment on whether the DMWW states a claim 

against the drainage districts under Iowa law. Revisiting our state law 

precedent is our prerogative. See State v. Eichler, 248 Iowa 1267, 1270, 

83 N.W.2d 576, 578 (1957) (“If our previous holdings are to be overruled, 
13

we should ordinarily prefer to do it ourselves.”). We elect to answer the 

certified questions. 

III. Analysis. 

We begin our analysis by reviewing our well-settled precedent

limiting judicial relief against drainage districts to mandamus and 

restricting constitutional challenges by public entities. We next explore

our traditional adherence to precedent left intact by the legislature, 

tempered by our obligation to overrule decisions that are plainly 

erroneous or rendered obsolete by changing circumstances. We then

address whether the DMWW’s claims warrant overruling our prior 

decisions that recognize broad immunity for drainage districts and limit 

constitutional challenges by public bodies. We conclude our precedent 

remains good law, and we answer the certified questions accordingly.

A. Our Controlling Precedent. “Our cases have consistently held 

that a drainage district is not susceptible to suit for money damages. It 

has no corporate existence for that purpose.” Chi. Cent. & Pac. R.R. v. 

Calhoun Cty. Bd. of Supervisors, 816 N.W.2d 367, 374 (Iowa 2012) 

(quoting Fisher, 369 N.W.2d at 429). “A drainage district’s immunity is 

not based on the doctrine of sovereign immunity; instead, it flows from 

the fact that a drainage district is an entity with ‘special and limited 

powers and duties conferred by the Iowa Constitution.’ ” Id. at 374 

(quoting Fisher, 369 N.W.2d at 430). 

Drainage districts are created and governed by statute, Iowa Code 

chapter 468, as authorized under the Iowa Constitution, article I, section 

18. Drainage district immunity is premised on their limited purpose, 

which is “to build and maintain drainage improvements that provide for 

the ‘drainage and improvement of agricultural and other lands, thereby 

making them tillable or suitable for profitable use.’ ” Hardin Cty. 
14

Drainage Dist. 55, Div. 3, Lateral 10 v. Union Pac. R.R., 826 N.W.2d 507, 

510 (Iowa 2013) (quoting Chi., Milwaukee & St. Paul Ry. v. Mosquito 

Drainage Dist., 190 Iowa 162, 163, 180 N.W. 170, 170 (1920)). Drainage 

districts have no other function, power, or purpose. As the certifying 

court observed, “Drainage districts are something of a collective passive 

utility system.” The districts have accomplished their original statutory 

mission: The terrain in much of north central Iowa was too wet or 

swampy for growing row crops4 until subsurface drain tiles were installed

to “transform these lands into the productive farm land that exists 

today.” Id. at 508. The drainage districts now have a continuing 

statutory duty to keep the drains working, that is, to maintain the 

original capacity of the drainage systems. See Iowa Code § 468.126(1)(a). 

We reaffirmed our immunity precedent just four years ago to hold 

that a railroad could not sue a drainage district for the railroad’s costs 

incurred repairing underground drainage tile. Chi. Cent. & Pac. R.R., 816 

N.W.2d at 378. The tile had collapsed, causing a sinkhole undermining 

the railroad tracks. Id. at 368. The county board of supervisors, as 

trustees for the drainage district, owed the statutory duty to maintain 

drainage improvements in repair. Id. at 373 (citing Iowa Code 

§ 468.126(1)). After the county supervisors failed to fix the sinkhole, the 

railroad made repairs to the drainage system at its expense and 

demanded reimbursement. Id. at 369. We held the railroad’s 

reimbursement claim failed as a matter of law, stating, “We see no reason

to abandon our previous holdings that . . . mandamus is the proper 

remedy.” Id. at 374. 

4It is said that “corn doesn’t like wet feet.” 

 
15

This has been our law for over one hundred years. See Gish v. 

Castner-Williams & Askland Drainage Dist., 136 Iowa 155, 157, 113 N.W. 

757, 757 (1907) (“The drainage district is not such [a] legal entity as is 

known to or recognized by law as a proper party to adversary 

proceedings.”); Clary v. Woodbury County, 135 Iowa 488, 495, 113 N.W. 

330, 332–33 (1907) (holding drainage district could not be sued for 

downstream flooding). We have repeatedly affirmed the principle that 

drainage districts cannot be sued for money damages. See, e.g., Gard v. 

Little Sioux Intercty. Drainage Dist., 521 N.W.2d 696, 698 (Iowa 1994) 

(dismissing tort action against drainage district by estates of drowned 

boaters whose watercraft struck obstruction maintained by district); Nat’l 

Props. Corp. v. Polk County, 386 N.W.2d 98, 107 (Iowa 1986) (noting

“[o]ur cases have consistently held that a drainage district is not 

susceptible to suit for money damages” (quoting Fisher, 369 N.W.2d at 

429)); Miller v. Monona County, 229 Iowa 165, 170, 294 N.W. 308, 310–

11 (1940) (holding operation of drainage district could not be declared a 

nuisance); Bd. of Supervisors v. Dist. Ct., 209 Iowa 1030, 1033, 229 N.W. 

711, 712 (1930) (“Nor is the plaintiff entitled to a judgment against said 

drainage district No. 46. A drainage district is sui generis. It is not a 

corporation. It cannot sue or be sued. . . . There can be no judgment at 

law rendered against a drainage district in any case.”); see also Holler v. 

Bd. of Supervisors, 304 N.W.2d 441, 442 (Iowa Ct. App. 1980) (“[W]e can 

find no authority for the plaintiffs’ contention that injury resulting to a 

lower landowner from the exercise of [duties of the drainage district] 

should be compensated . . . .”).

In Fisher, homeowners whose basement flooded during heavy rains 

blamed nearby drainage tile blocked by tree roots and debris. 369 

N.W.2d at 427–28. They filed a tort action seeking money damages from 
16

the drainage district and the county board of supervisors, alleging 

negligent inspection and maintenance of the drainage tile line. Id. The 

district court ruled that neither the drainage district nor the board acting 

on its behalf could be sued for money damages. Id. at 428. We affirmed, 

noting the “limited nature of a drainage district’s purposes and powers” 

as the reason judicial relief is limited to mandamus actions to compel 

performance of a statutory duty. Id. at 429, 430–31. We reiterated that 

we have never permitted a drainage district to be sued “for money 

damages on a tort theory for injury to land within the district” and

rejected the plaintiffs’ argument that the legislature’s partial abrogation 

of sovereign immunity with the enactment of the Municipal Tort Claims 

Act, Iowa Code chapter 613A (now codified at Iowa Code chapter 670), 

opened the door to tort actions against a drainage district. Id. at 429–30. 

We elaborated,

We do not agree that a drainage district’s immunity 

from suit in tort must stand or fall with the doctrine of 

sovereign immunity. Nothing in our prior cases suggests 

that sovereign immunity was the reason for denial of the 

right to sue a drainage district for money damages. The 

language of the cases indicates that, apart from any question 

of sovereign immunity, a drainage district is merely an area 

of land, not an entity subject to a judgment for tort damages. 

This was never the case with such governmental 

entities as cities or counties. Even before the enactment of 

chapter 613A, a city could be sued for torts committed in a 

proprietary, as opposed to governmental, capacity. In 

contrast, a drainage district could not be subject to a money 

judgment in tort under any state of facts. 

Id. at 430 (emphasis added) (citation omitted). We expressly held that “a 

drainage district is not a ‘municipality’ within the meaning of Iowa Code

section 613A.1(1). A drainage district is not subject to suit in tort for 

money damages.” Id. 
17

A decade later, in Gard, we declined to overrule Fisher and rejected 

an equal protection challenge to drainage district immunity. 521 N.W.2d 

at 698–99. We affirmed the dismissal of a wrongful-death action arising 

from a fatal boat accident blamed on an underwater obstruction allegedly 

maintained by the drainage district. Id. at 697, 699. We noted after our 

decision in Fisher, the legislature did not amend the Municipal Tort 

Claims Act to include drainage districts within the definition of 

municipalities subject to tort claims. Id. at 698. We “invoked the 

principle that issues of statutory interpretation settled by the court and 

not disturbed by the legislature have become tacitly accepted by the 

legislature.” Id. Accordingly, we applied the doctrine of stare decisis. Id. 

The plaintiffs argued this resulted in a violation of equal protection under 

the Federal and Iowa Constitutions by creating separate classes of 

victims: (1) persons injured by drainage districts who could not sue; and 

(2) persons injured by other local government entities who could sue. Id. 

at 698–99. But we rejected the constitutional challenge, stating,

“Because of the limited nature of a drainage district’s purposes and 

powers, there is a rational basis for the classification.” Id. at 699. 

Again in 2012, we reiterated our interpretation of chapter 468 

precluding claims for money damages and limiting judicial relief to 

mandamus. Chi. Cent. & Pac. R.R., 816 N.W.2d at 374. “Suits against 

drainage districts ‘have been allowed only to compel, complete, or correct 

the performance of a duty or the exercise of a power by those acting on 

behalf of a drainage district.’ ” Id. at 378 (quoting Fisher, 369 N.W.2d at 

429). We saw “no reason to abandon our previous holdings” particularly 

given the legislature’s inaction, “indicating its tacit acceptance of 

mandamus as the appropriate remedy for board inaction.” Id. at 374.

Our decision was unanimous, with one justice not participating.
18

We have long made clear that mandamus is the proper remedy to 

adjudicate claims that a drainage district is violating a duty imposed by 

an Iowa statute. See id.; Voogd v. Joint Drainage Dist. No. 3-11, 188 

N.W.2d 387, 391 (Iowa 1971) (“A drain once completed is under the 

supervision of the supervisors, and they can be compelled by mandamus 

to maintain and keep it in repair.”); State ex rel. Iowa Emp’t Sec. Comm’n 

v. Des Moines County, 260 Iowa 341, 346, 149 N.W.2d 288, 291 (1967) 

(holding “[a]n action in mandamus is the proper remedy” to compel 

drainage district to collect and pay state retirement and social security 

taxes owing under Iowa Code chapters 97B and 97C). 

We have specifically held downstream property owners may not 

obtain other injunctive relief from drainage districts. Maben v. Olson,

187 Iowa 1060, 1063–64 175 N.W. 512, 513–15 (1919) (reversing 

injunction obtained by downstream property owners against drainage 

district and holding damages from overflow were not a compensable

taking). 

Another line of cases holds that political subdivisions, as creatures 

of statute, cannot sue to challenge the constitutionality of state statutes.

See Bd. of Supervisors v. Dep’t of Revenue, 263 N.W.2d 227, 232–34 

(Iowa 1978) (“Our cases have uniformly held a county lacks the ability to 

mount a constitutional attack upon state legislative enactments.” 

(quoting Warren County v. Judges of Fifth Judicial Dist., 243 N.W.2d 894, 

897 (Iowa 1976))); Charles Hewitt & Sons Co. v. Keller, 223 Iowa 1372, 

1377, 275 N.W. 94, 97 (1937) (“Counties and other municipal 

corporations are, of course, the creatures of the legislature . . . and may 

not question that power which brought it into existence . . . .”); McSurely 

v. McGrew, 140 Iowa 163, 170, 118 N.W. 415, 419 (1908) (“[T]he 

municipality itself cannot complain of any act of the Legislature 
19

diminishing its revenues, amending its charter, or even dissolving it 

entirely.”); see also In re A.W., 741 N.W.2d 793, 805 (Iowa 2007) (“The 

county attorney’s authority to act on behalf of either the county or the 

State is derived from the legislature, and he therefore may not challenge 

the constitutionality of legislative acts in court while representing the 

interests of the State.”). 

This reasoning readily extends to a public utility such as the 

DMWW, another creature of statute, and precludes its constitutional 

challenges to chapter 468, which we have interpreted to provide broad 

immunity for drainage districts. See Hous. Auth. of the Kaw Tribe of 

Indians of Okla. v. City of Ponca City, 952 F.2d 1183, 1189–90 (10th Cir. 

1991) (holding local housing authority could not bring due process or 

equal protection challenge against another political subdivision acting 

under state statute); Village of Arlington Heights v. Reg’l Transp. Auth., 

653 F.2d 1149, 1153 (7th Cir. 1981) (“[T]he principle that a municipality 

may not challenge acts of the state under the Fourteenth Amendment 

applies ‘whether the defendant is the state itself or another of the state’s 

political subdivisions.’ ” (quoting City of South Lake Tahoe v. Cal. Tahoe 

Reg’l Planning Agency, 625 F.2d 231, 233 (9th Cir. 1980))). 

In sum, a century’s worth of precedent, including a case our court 

decided unanimously just four years ago, precludes any remedy against 

drainage districts other than mandamus. While one can critique the 

reasoning of specific decisions, as one can criticize any decision this 

court has made, the overall body of law supporting this proposition is 

quite weighty and long-established. 

B. Stare Decisis. Stare decisis “is a Latin term meaning ‘to stand 

by things decided.’ ” State v. Miller, 841 N.W.2d 583, 586 (Iowa 2014) 

(quoting Stare decisis, Black’s Law Dictionary (9th ed. 2009)). “From the 
20

very beginnings of this court, we have guarded the venerable doctrine of 

stare decisis and required the highest possible showing that a precedent 

should be overruled before taking such a step.” McElroy v. State, 703 

N.W.2d 385, 394 (Iowa 2005) (quoting Kiesau v. Bantz, 686 N.W.2d 164, 

180 n.1 (Iowa 2004) (Cady, J., dissenting) (citing Hildreth v. Tomlinson, 2 

Greene 360, 361 (Iowa 1849))). “Courts adhere to the holdings of past 

rulings to imbue the law with continuity and predictability and help

maintain the stability essential to society.” Miller, 841 N.W.2d at 586. 

As we have repeatedly recognized,

[i]t is of the greatest importance that the law should be 

settled. Fairness to the trial courts, to the legal profession, 

and above all to citizens generally demands that 

interpretations once made should be overturned only for the 

most cogent reasons . . . . Legal authority must be 

respected; not because it is venerable with age, but because 

it is important that courts, and lawyers and their clients, 

may know what the law is and order their affairs 

accordingly. 

State v. Liddell, 672 N.W.2d 805, 813 (Iowa 2003) (alteration in original) 

(quoting Stuart v. Pilgrim, 247 Iowa 709, 714, 74 N.W.2d 212, 215–16 

(1956)). Iowans have been able to rely on the immunity of drainage 

districts in choosing to form and operate those entities. 

DMWW urges us to depart from stare decisis here. It relies on 

cases such as Turner v. Turner, describing “our responsibility to 

reconsider court-made rules when their continued vitality is 

questionable.” 304 N.W.2d 786, 787 (Iowa 1981) (“When a rule is of 

judicial origin, it is subject to judicial change.”); see also Koenig v. 

Koenig, 766 N.W.2d 635, 646 (Iowa 2009) (abandoning common law 

distinction between invitees and licensees in premises liability cases). 

Those decisions, however, did not involve judicial interpretation of 

statutes. “The rule of stare decisis ‘is especially applicable where the 
21

construction placed on a statute by previous decisions has been long 

acquiesced in by the legislature . . . .’ ” In re Estate of Vajgrt, 801 N.W.2d 

570, 574 (Iowa 2011) (quoting Iowa Dep’t of Transp. v. Soward, 650 

N.W.2d 569, 574 (Iowa 2002)). That is exactly what we have here. See 

Chi. Cent. & Pac. R.R., 816 N.W.2d at 374. We reiterated our reliance on 

“the venerable principles of stare decisis and legislative acquiescence” in

the context of interpreting statutes in Doe v. New London Community 

School District, stating, 

[W]e presume the legislature is aware of our cases that 

interpret its statutes. When many years pass following such

a case without a legislative response, we assume the 

legislature has acquiesced in our interpretation. 

. . . .

. . . Overall, we think our legislature would be quite 

surprised to learn if we decided to reverse course and take a 

different position under the guise of statutory interpretation. 

848 N.W.2d 347, 355, 356 (Iowa 2014) (quoting Ackelson v. Manley Toy 

Direct, L.L.C., 832 N.W.2d 678, 688 (Iowa 2013) (citations omitted)). 

Still, the principles of stare decisis and legislative acquiescence in 

combination “are not absolute,” and we may overrule prior decisions 

“when error is manifest, including error in the interpretation of statutory 

enactments.” McElroy, 703 N.W.2d at 395 (quoting Miller v. Westfield Ins. 

Co., 606 N.W.2d 301, 306 (Iowa 2000)). For example, in McElroy, we

reinterpreted the Iowa Civil Rights Act to hold that a plaintiff seeking 

money damages is entitled to a jury trial, overruling Smith v. ADM Feed 

Corp., 456 N.W.2d 378 (Iowa 1990). McElroy, 703 N.W.2d at 395. Our

court was narrowly divided in Smith, with four justices dissenting. Id. at 

393–94 (citing Smith, 456 N.W.2d at 387–88 (Carter, J., dissenting)). We 

observed that the Smith dissent predicted problems resulting from the 

majority’s interpretation that experience revealed in practice and that 
22

subsequent changes in federal law “compounded the problems the 

dissent foretold.” Id. at 394. By contrast, our prior holdings that the 

DMWW seeks to overturn were unanimously reaffirmed by our court in 

1994 and 2012 without any intervening changes in the law underlying 

the immunity. 

C. DMWW’s Arguments for Revisiting Our Precedent. We next 

address whether DMWW has provided compelling reasons for overruling 

our century of precedent interpreting chapter 468 that the legislature 

has left intact. DMWW raises several arguments in this regard. First, 

DMWW argues immunity should not apply in a water pollution case in 

light of the evolution in the understanding of environmental 

contamination. Second, it contends the enactment of the home rule 

amendment to our state constitution in 1978 undermines the rationale 

for the immunity. Third, it claims the nitrate contamination at issue 

rebuts the public health rationale for drainage districts. Fourth, it points 

to decisions of other states allowing tort claims against drainage 

districts. Finally, it argues the immunity is unconstitutional as applied. 

We address these arguments in turn. 

1. The evolution of environmental law. The DMWW notes that none 

of our drainage district immunity decisions involved a claim for water 

pollution. According to DMWW, immunity was established decades

before the environmental movement raised consciousness about 

protecting water quality. Thus, the DMWW argues the historical basis 

for immunity does not apply to pollution claims.

Upon our review, we disagree. Changes in environmental laws 

have not undermined the basis for the immunity—the limited scope and 

powers of drainage districts as entities. Our cases, old and new, closed 

the door to tort claims against drainage districts “under any state of
23

facts.” Fisher, 369 N.W.2d at 430. We applied the immunity in Fisher 

even though the drainage district in that case breached its statutory duty 

to maintain and repair the underground drain tile line, causing the 

recurring floods in the plaintiff homeowner’s basement. Id. at 427–28.

We again applied the immunity four years ago, unanimously rejecting a

railroad’s reimbursement claim for repairing a blocked tile drain that the 

drainage district was statutorily obligated to maintain. Chi. Cent. & Pac. 

R.R., 816 N.W.2d at 374. In both cases, we reaffirmed drainage district 

immunity even though the harm to the plaintiff resulted from the

drainage district’s breach of its statutory duty to repair drain tiles. 

Pollution claims do not present a stronger case to impose liability. 

Chapter 468 imposes no duty on the districts to filter out nitrates. 

Rather, chapter 468 simply requires drainage districts to maintain 

drainage systems to keep the water flowing to drain lands. See, e.g., 

Iowa Code § 468.126(1)(a) (requiring repairs as necessary to “restore or 

maintain a drainage . . . improvement in its original efficiency or 

capacity”). No provision in chapter 468 authorizes drainage districts to 

mandate changes in farming practices to reduce fertilizer runoff or to 

assess farmers for the costs of removing nitrates from waters flowing 

through agricultural drainage systems. It would therefore seem odd to 

make an exception to drainage district immunity in this one area.

The defendants’ lack of statutory authority to regulate farmer 

nitrate use cuts against revisiting our longstanding precedent, which 

rests upon the limited existence and powers of drainage districts. 

“Liability follows control . . . .” Estate of McFarlin v. State, 881 N.W.2d 

51, 64 (Iowa 2016). A party in control of an activity can take precautions 

to reduce the risk of harm to others. See McCormick v. Nikkel & Assocs., 

Inc., 819 N.W.2d 368, 374 (Iowa 2012) (“The reason is simple: The party 
24

in control of the work site is best positioned to take precautions to 

identify risks and take measures to improve safety.”); Allison by Fox v. 

Page, 545 N.W.2d 281, 283 (Iowa 1996) (“The general rule and exceptions 

reveal a common principle: liability is premised upon control.”); Schlotfelt 

v. Vinton Farmers’ Supply Co., 252 Iowa 1102, 1113, 109 N.W.2d 695, 

701 (1961) (declining to issue injunction in nuisance action for foot 

traffic entering plaintiff’s business because “defendant . . . should not be 

compelled to control its customers and in any event could not do so”); 

see also Okpalobi v. Foster, 244 F.3d 405, 427 (5th Cir. 2001) (reversing 

injunction against government officials who “have no power to redress 

the asserted injuries”); McDaniel v. Bd. of Educ., 956 F. Supp. 2d 887, 

894 (N.D. Ill. 2013) (rejecting equitable claims against parties who would 

“lack the power to carry out the injunction”); State v. Lead Indus. Ass’n, 

951 A.2d 428, 449–50 (R.I. 2008) (holding public nuisance claim for 

contamination required proof defendants were in control over the 

instrumentality causing the alleged nuisance at the time the damage 

occurred). These basic principles of tort law favor preserving, not 

abrogating, the immunity for drainage districts. 

While attitudes toward the environment may differ today from

when the first drainage tiles were placed generations ago, tort claims 

based on alleged pollution are nothing new. “Tort claims challenging 

environmental pollution can be traced back to at least the seventeenth 

century . . . .” Freeman v. Grain Processing Corp., 848 N.W.2d 58, 66 

(Iowa 2014) (reviewing history of common law and statutory remedies for 

pollution). Iowa tort law has allowed nuisance claims to recover for 

environmental contamination for over a century. See id. at 67 (noting 

that in Bowman v. Humphrey, 132 Iowa 234, 235–36, 243, 109 N.W. 

714, 714–15, 717 (1906), “the plaintiff landowner successfully sued a 
25

creamery on a nuisance theory for depositing refuse in a running stream 

that injured the lower riparian owner.” Those tort claims have coexisted 

with drainage district immunity, weakening the DMWW’s argument that 

changes in environmental laws support abrogating that immunity. 

In Freeman, we noted “the 1960s and 1970s saw the development 

of significant statutory approaches to pollution.” 848 N.W.2d at 68. 

These included the Federal Clean Air Act (CAA) and Clean Water Act 

(CWA) as well as Iowa Code chapter 455B, the state counterpart to those 

enactments. See id. at 69–72 (contrasting statutory and common law 

remedies for pollution). We held the CAA and Iowa Code chapter 455B 

did not preempt state common law claims by neighboring private

property owners against a private corn milling facility. Id. at 63–64, 94.

We noted, “[T]he EPA has created a vast regulatory structure to control 

the emission of air pollutants, including technological standards, health 

standards, risk levels, and enforcement provisions . . . .” Id. at 68 

(quoting Alexandra B. Klass, State Innovation and Preemption: Lessons 

from State Climate Change Efforts, 41 Loy. L.A. L. Rev. 1653, 1686 

(2008)). The same is true for water pollution addressed under the CWA. 

See Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 419, 131 S. Ct. 

2527, 2535, 180 L. Ed. 2d 435, 444 (2011) (“[The CWA] installed an allencompassing regulatory program, supervised by an expert 

administrative agency, to deal comprehensively with interstate water 

pollution.”). Yet this proliferation of environmental laws has not led us

or the legislature to revisit our precedent limiting judicial remedies 

against drainage districts. 

Significantly, Iowa Code section 455E.6 expressly immunizes 

farmers who comply with fertilizer label instructions from liability for 

nitrate contamination, including money damage claims or cleanup 
26

costs.5 We defer to the legislature whether to reassess that policy choice.

See Galloway v. State, 790 N.W.2d 252, 259 (Iowa 2010) (Cady, J., 

dissenting) (“[P]ublic policy is best left to our legislative branch of 

government to decide as representatives of the people.”). With that 

statutory immunity for nitrate costs on the books, it is difficult to argue 

our precedents immunizing drainage districts should be overruled. 

Indeed, because farmers are assessed for the costs of drainage districts, 

one might characterize state-law nitrate-based claims against drainage 

districts as a way to get backdoor relief against farmers that the 

legislature has specifically barred through the front door. 

Drainage districts provide a conduit for draining water. In other 

contexts, the legislature has imposed cleanup obligations on entities 

operating conduits carrying contaminated water. See, e.g., Iowa Code 

5Iowa Code section 455E.6 provides,

This chapter supplements other legal authority and shall not 

enlarge, restrict, or abrogate any remedy which any person or class of 

persons may have under other statutory or common law and which 

serves the purpose of groundwater protection. An activity that does not 

violate chapter 455B or 459, subchapters II and III, does not violate this 

chapter. In the event of a conflict between this section and another 

provision of this chapter, it is the intent of the general assembly that this 

section prevails. 

Liability shall not be imposed upon an agricultural producer for 

the costs of active cleanup, or for any damages associated with or 

resulting from the detection in the groundwater of any quantity of 

nitrates provided that application has been in compliance with soil test 

results and that the applicator has properly complied with label 

instructions for application of the fertilizer. Compliance with the above 

provisions may be raised as an affirmative defense by an agricultural 

producer. 

Liability shall not be imposed upon an agricultural producer for 

costs of active cleanup, or for any damages associated with or resulting 

from the detection in the groundwater of pesticide provided that the 

applicator has properly complied with label instructions for application of 

the pesticide and that the applicator has a valid appropriate applicator’s 

license. Compliance with the above provisions may be raised as an 

affirmative defense by an agricultural producer. 

 
27

§ 358.16 (providing sanitary districts with the power to provide for 

sewage disposal); id. § 455B.307 (prohibiting dumping solid waste into 

any place other than sanitary disposal project); see also id. § 455B.186 

(“A pollutant shall not be disposed of by dumping depositing, or 

discharging such pollutant into any water of the state . . . except . . . 

adequately treated sewage . . . .”); id. § 455B.173 (instructing agency to 

set forth water standards for sewage systems and waterworks); Iowa 

Admin. Code r. 567—62.3 (setting forth treatment standards for publicly 

owned treatment works and sewage disposal systems). This indicates 

our legislature has responded to changing environmental attitudes.

Unlike with sanitary districts, the Iowa legislature has not imposed 

duties on drainage districts to treat contaminants.6

“[A] drainage district is a legislative creation which has no rights or 

powers other than those found in statutes which give and sustain its 

life.” State ex rel. Iowa Emp’t Sec. Comm’n, 260 Iowa at 345, 149 N.W.2d 

at 291. Iowa Code chapter 468 empowers drainage districts to

restore or maintain a drainage or levee improvement in its 

original efficiency or capacity, and for that purpose may 

remove silt, debris, repair any damaged structures, remove 

weeds and other vegetable growth, and whatever else may be 

needed to restore or maintain such efficiency or capacity to 

prolong its useful life.

Iowa Code § 468.126(1)(a) (emphasis added). An improvement is further 

defined as “a project intended to expand, enlarge, or otherwise increase 

the capacity of any existing ditch, drain, or other facility above that for 

6The fact the CWA expressly exempts agricultural runoff further undermines the 

view that changing environmental attitudes warrant revisiting our precedent on 

drainage district immunity. 33 U.S.C. § 1362(14) (defining “point source” to exclude 

“agricultural storm water discharges and return flows from irrigated agriculture”). No 

court or agency to date has ruled agricultural drainage systems constitute point 

sources regulated under the CWA.

 
28

which it was designed.” Id. § 468.126(4). Thus, under the express 

language of the statute, the drainage district is empowered only to 

“restore,” “maintain,” or “increase” the flow of water through the drainage 

system. Id. § 468.126(1), (4). The legislature has not authorized 

drainage districts to assess costs to redesign existing drainage systems to 

abate nitrates. This further supports our conclusion that the changing

environmental attitudes should not undermine our long-standing 

precedents limiting judicial relief against drainage districts.

Drainage districts and their trustees have presumably relied on 

our long-standing precedent recognizing their immunity. One practical 

result of that reliance is the lack of liability insurance to cover defense 

costs or indemnify judgments.7 Perhaps some citizens would have 

declined to serve as drainage district trustees if they knew they could 

face uninsured litigation liability. Public property, including funds in 

bank accounts necessary for the general purpose of the public entity, is 

exempt from execution. See Reg’l Util. Serv. Sys. v. City of Mount Union, 

874 N.W.2d 120, 127 (Iowa 2016) (applying Iowa Code § 627.18).

Chapter 468 contains no mechanism allowing drainage districts to raise 

7Other courts have noted that reliance on stare decisis affects decisions whether 

to purchase liability insurance. See, e.g., State v. Peeler, 140 A.3d 811, 857 (Conn. 

2016) (Zarella, J., dissenting) (stating courts should evaluate whether overruling 

precedent would “cause a significant reordering of individual conduct, including risk 

shifting arrangements such as insurance policies”); City of Chicago v. Beretta U.S.A. 

Corp., 821 N.E.2d 1099, 1144 (Ill. 2004) (rejecting city’s public nuisance claim against 

firearm manufacturers, noting “the expectations of potential defendants, both business 

entities and individuals, and their insurers would be upset substantially if an entirely 

new scheme of liability were imposed”); Crist v. Hunan Palace, Inc., 89 P.3d 573, 580 

(Kan. 2004) (declining to overrule precedent, noting “[i]nsureds and insurers alike ha[d] 

relied upon” the prior decisions); Paige v. City of Sterling Heights, 720 N.W.2d 219, 228 

(Mich. 2006) (recognizing “where an entire class of individuals or businesses purchase 

insurance and another entire class does not in reliance on a decision by this Court, this 

may be viewed as the sort of reliance that could cause ‘practical real-world 

dislocations’ ”). 

 
29

taxes to pay off a judgment for pollution costs, and even taxes assessed 

for a drainage improvement are subject to veto by a majority of 

landowners. See Iowa Code § 468.126(4)(c). By contrast, other statutes 

allow cities and counties to raise taxes to pay off judgments.8 If the 

legislature had intended to allow tort claims against drainage districts, it 

presumably would have provided a funding mechanism to pay 

judgments, as it did for cities and counties.9 The absence of such a 

provision in chapter 468 reinforces our long-standing interpretation 

precluding tort claims against drainage districts under any set of facts. 

Another reason to decline the DMWW’s invitation to abrogate 

immunity for pollution claims is the absence of any evidence or argument 

that drainage districts are the cheapest cost avoider for nitrate 

contamination. The drainage systems were not designed or intended to 

filter out nitrates. DMWW does not suggest it would be cheaper for the 

drainage districts to remove nitrates from multiple locations than for 

8Iowa Code section 626.24 authorizes cities to levy taxes to pay off judgments, 

and provides in relevant part,

If no property of a municipal corporation again which execution has 

issued can be found, or if the judgment creditor elects not to issue 

execution against such corporation, a tax must be levied as early as 

practicable to pay off the judgment. 

See also Iowa Code § 331.430 (authorizing debt service funded by county to pay 

judgments). There are no such statutory provisions allowing drainage districts to levy 

taxes to pay tort judgments. 

9As counsel for the DMWW acknowledged at oral argument, further litigation 

would be required to allocate liability among numerous drainage districts. Such cost 

sharing could be further complicated by remonstrance petitions objecting to a drainage 

district’s tax assessments. See Iowa Code § 468.126(4)(c). By contrast, the DMWW can 

spread its cost of nitrate removal by raising its water rates. The Illinois Supreme Court 

aptly observed that when “a system already exists for the rational allocation of costs . . . 

there is little reason for a court to impose an entirely new system of allocation.” Beretta 

U.S.A. Corp., 821 N.E.2d at 1145. Moreover, “the legislature is better able to consider 

[the] need for cost-recovery legislation” in response to an alleged ongoing public 

nuisance. Id. at 1147. 

 
30

DMWW to remove nitrates from a single location. Economic theory 

underlying tort law favors placing liability on the party who can avoid the 

harm at the least cost. See Holtz v. J.J.B. Hilliard W.L. Lyons, Inc., 185 

F.3d 732, 743 (7th Cir. 1999) (explaining that rules should be set to 

impose liability on the party who is the “least-cost avoider”—that is, the 

party who can avoid the mistake at the lowest price); Beyond the Garden 

Gate, Inc. v. Northstar Freeze-Dry Mfg., Inc., 526 N.W.2d 305, 310 (Iowa 

1995) (noting that imposing liability on the “least cost risk avoider . . . 

minimize[s] the total loss to society” (quoting James J. White & Robert S. 

Summers, Uniform Commercial Code § 11–5, at 539–40 (3d ed. 1988))); 

Guido Calabresi, The Costs of Accidents: A Legal and Economic Analysis 

135 & n.1 (1970) (arguing that the burden of a legal rule should be 

placed on the party who is best positioned and motivated to avoid the 

harm in the future). The least-cost avoider for removing nitrates from 

drinking water may well be the DMWW, which already bears the 

statutory obligation to provide safe water for its customers under the 

Safe Drinking Water Act and its Amendments, 42 U.S.C. §§ 300f–300j. 

The DMWW does not claim otherwise and, indeed, itself at times has 

lawfully deposited back into the Raccoon River the very nitrates it 

removed.10

The argument has been made that “case-by-case adjudication” by 

the Iowa courts is superior to “legislatively imposed command and 

control regulation.” We do not share that view. Affected parties are 

being subjected to “commands” and “controls” whether these come from 

a legislature, regulatory agency, or a court. The difference is that statutes 

10Iowa Dep’t Nat. Res., National Pollutant Discharge Elimination System 

(NPDES) Permit No. 7727000, at 3 (May 1, 2015). 

 
31

and regulations have been approved by one or more elected branches of 

government who are responsible to the people. Also, these statutes and 

regulations usually have been developed by parties with expertise, rather 

than generalist judges. And they are enacted and published in advance 

so the public knows what the rules are. Case-by-case adjudication, on 

the other hand, offers none of those advantages. 

The Supreme Court, in a decision holding the CAA supplanted 

federal common law claims asserted by several states and private parties 

suing over power plant emissions, compared the institutional 

competency of courts and regulators in addressing pollution as follows:

It is altogether fitting that Congress designated an 

expert agency, here, EPA, as the best suited to serve as 

primary regulator of greenhouse gas emissions. The expert 

agency is surely better equipped to do the job than 

individual district judges issuing ad hoc, case-by-case 

injunctions. Federal judges lack scientific, economic, and 

technological resources an agency can utilize in coping with 

issues of this order. Judges may not commission scientific 

studies or convene groups of experts for advice, or issue 

rules under notice-and-comment procedures inviting input 

by any interested person, or seek the counsel of regulators in 

the States where the defendants are located. Rather, judges 

are confined by a record comprising the evidence the parties 

present. 

Am. Elec. Power Co., 564 U.S. at 428, 131 S. Ct. at 2539–40, 180 

L. Ed. 2d at 450 (citation omitted). For all these reasons, we are not 

persuaded to overrule our precedent in light of heightened environmental 

concerns. 

2. The home rule amendment. The DMWW next argues the 

enactment of the home rule amendment in 1978 broadened the police 

powers of county government. That amendment granted counties “home 

rule power and authority, not inconsistent with the laws of the general 

assembly.” Iowa Const. art. III, § 39A; see also Worth Cty. Friends of 
32

Agric. v. Worth County, 688 N.W.2d 257, 265 (Iowa 2004) (recognizing the 

“superior authority of the General Assembly” (quoting Bechtel v. City of 

Des Moines, 225 N.W.2d 326, 332 (Iowa 1975))). Iowa Code chapter 468, 

however, remained unchanged. This case turns on the duties and 

powers of drainage districts. The county supervisors merely act in a 

representative capacity as trustees of the drainage districts under

chapter 468. Nothing in the home rule amendment broadens the 

supervisors’ operational authority over drainage districts or gives

drainage districts the power to regulate farming practices or water 

quality. We have repeatedly reaffirmed the immunity of drainage 

districts well after the enactment of the home rule amendment because

drainage districts have limited powers. See Chi. Cent. & Pac. R.R., 816 

N.W.2d at 374; Fisher, 369 N.W.2d at 430. Drainage districts lack the 

broad police powers exercised by counties and other political 

subdivisions. 

Home rule powers can only be exercised in a manner consistent 

with acts of the general assembly. See Iowa Const. art. III, § 39A. A

state statute trumps inconsistent local acts. The DMWW’s position that 

the home rule amendment abrogated drainage district immunity conflicts 

with chapter 468 as we have interpreted it for over a century. That 

provides another reason for declining to read into the home rule 

amendment any intent to overrule our statutory interpretation of chapter 

468 immunizing drainage districts.

We also note the home rule amendment prohibits local 

governments from assessing taxes without legislative authorization. Id. 

(“Counties . . . shall not have power to levy any tax unless expressly 

authorized by the general assembly.”). The legislature has expressly 

allowed counties to levy taxes to pay off tort judgments. See Iowa Code 
33

§ 626.24. No such provision allows drainage districts to levy taxes to pay 

off tort judgments. The legislature has authorized drainage districts to 

levy taxes solely to construct and maintain drainage systems to drain 

water. Id. § 468.127. The limited powers of drainage districts have 

remained unchanged since the enactment of the home rule amendment. 

3. Public health. The DMWW also contends that its allegations of 

nitrate contamination should eliminate the historical immunity of 

drainage districts because they rebut the statutory purpose of drainage 

districts to benefit “public health.” It is true that Iowa Code section 

468.2 codifies a legislative presumption that the “drainage from

agricultural lands . . . shall be presumed to be a public benefit and 

conducive to the public health, convenience, and welfare.” Id. § 468.2(1). 

We draw a different lesson from that language, however, than DMWW. 

The legislature having adopted a legislative presumption that drainage 

districts are beneficial, it is not our role to adopt a different presumption. 

Further, DMWW disregards two additional benefits of draining lands 

presumed by the legislature—the public’s “convenience, and welfare.” Id.

Drainage districts convert economically unproductive swamps into 

tillable farmland. 

Ultimately, this case is about who pays for nitrate removal from 

the drinking water that reaches our kitchen faucets. The DMWW does

not claim nitrate levels render the Raccoon River unsafe for swimming or 

fishing. All parties agree the DMWW removes unsafe levels of nitrates 

from the water it provides to its customers. The resulting cost to its 

customers, according to defendants, is about one cent per day added to 

their water bills. The DMWW does not challenge that estimate. It is for 

the legislature to decide whether to reallocate the costs of nitrate 

reduction. See In re Estate of Whalen, 827 N.W.2d 184, 194 (Iowa 2013) 
34

(declining to change the meaning of a statute in the guise of 

interpretation and suggesting policy arguments for the change be 

directed to the legislature). 

4. The decisions of other state courts. The DMWW cites decisions 

from a handful of states allowing private persons to sue drainage 

districts in tort. None involved claims by a water utility or other public 

entity. Roark v. Macoupin Creek Drainage Dist., 738 N.E.2d 574, 579–80 

(Ill. App. Ct. 2000); Gerbers, Ltd. v. Wells Cty. Drainage Bd., 608 N.E.2d 

997, 998, 1000 (Ind. Ct. App. 1993); Dougan v. Rossville Drainage Dist., 

757 P.2d 272, 279 (Kan. 1988); Lezina v. Fourth Jefferson Drainage Dist., 

190 So. 2d 97, 100 (La. Ct. App. 1966); Landview Landscaping, Inc. v. 

Minnehaha Creek Watershed Dist., 569 N.W.2d 237, 240 (Minn. Ct. App. 

1997); Parriott v. Drainage Dist. No. 6, 410 N.W.2d 97, 99–100 (Neb. 

1987); Kilburn v. Fort Bend Cty. Drainage Dist., 411 S.W.3d 33, 36–37 

(Tex. App. 2013); Holytz v. City of Milwaukee, 115 N.W.2d 618, 625 (Wis. 

1962), superseded by statute as recognized by Milwaukee Metro. 

Sewerage Dist. v. City of Milwaukee, 691 N.W.2d 658, 677 (Wis. 2005) 

(noting the adoption of statute codifying immunity for discretionary 

functions); see also Ark. State Highway Comm’n v. Steed, 411 S.W.2d 17, 

21 (Ark. 1967) (granting immunity for tort actions against “improvement 

districts” but allowing injunctive relief and compensation for taking 

private property).

In any event, these cases are inapposite because the immunity 

afforded drainage districts in Iowa is based on special features of 

drainage districts under Iowa law and specific determinations of our 

legislature in Iowa Code chapter 468. Fisher, 369 N.W.2d at 430. We 

also have held that drainage districts are not municipalities subject to 

suit under Iowa’s Municipal Tort Claims Act. Id. That other states 
35

permit tort claims against drainage districts does not persuade us to 

overrule our holdings to the contrary. 

5. The constitutionality of broad immunity for drainage districts.

The DMWW lastly argues broad immunity in favor of drainage districts is 

unconstitutional. We have confronted this argument before. In Gard, we

applied the rational-basis test11 and rejected state and federal equal 

protection challenges to drainage district immunity from tort liability. 

521 N.W.2d at 698–99. We denied recovery to the families of two boaters 

who died when their watercraft struck an underwater concrete deflector 

jointly maintained by the drainage district in the Little Sioux River. Id. at 

697. We are not persuaded the DMWW’s claims over the cost of treating 

drinking water are more compelling than the wrongful-death claims at 

issue in Gard. We apply Gard to reject the DMWW’s equal protection 

claims.

We also reject the DMWW’s “takings” claim. The takings clause 

provides, “Private property shall not be taken for public use without just 

compensation first being made . . . .” Iowa Const. art. I, § 18 (emphasis 

added). No private property is involved in this case. To the contrary, we 

have a dispute among various public subdivisions that only exist by the 

grace of the Iowa General Assembly. 

The drainage districts have not unconstitutionally deprived the 

DMWW of any property. The Raccoon River is owned by the State of Iowa 

in trust for the public. See Estate of McFarlin, 881 N.W.2d at 63. The 

11The DMWW argues we should apply strict scrutiny, but fails to cite any 

authority applying strict scrutiny to a constitutional claim asserted by one public entity 

against another. Strict scrutiny is unwarranted when reviewing claims challenging a 

state’s allocation of authority among political subdivisions. Herriman v. Bell, 590 F.3d 

1176, 1191 (10th Cir. 2010); Green v. City of Tucson, 340 F.3d 891, 902–03 (9th Cir. 

2003). 

 
36

DMWW does not own the water flowing in the Raccoon River, nor was it 

denied access to that water. “This case involves public water supplies, 

not private property. There can be no taking of a public resource . . . .” 

Del. Cty. Safe Drinking Coal., Inc. v. McGinty, No. 07–1782, 2008 WL 

2229269, at *1 n.1 (E.D. Penn. May 27, 2008). In City of Trenton v. 

New Jersey, the United States Supreme Court rejected a takings claim 

under the Fifth Amendment. 262 U.S. 182, 191–92, 43 S. Ct. 534, 538, 

67 L. Ed. 937, 942–43 (1923). The City of Trenton operated a water 

utility and challenged the state’s license fee for diverting river water as 

an unconstitutional taking. Id. at 183, 43 S. Ct. at 535, 67 L. Ed. at 

939–40. The Court held that regardless of whether the city’s water 

treatment facility was a proprietary or governmental function, the city 

could not assert a takings claim against the state. Id. at 191–92, 43 

S. Ct. at 538, 67 L. Ed. at 943; see also City of Hugo v. Nichols, 656 F.3d 

1251, 1257 (10th Cir. 2011) (applying City of Trenton and its progeny to 

hold municipality could not “sue its parent state under a substantive 

provision of the Constitution”); Bd. of Levee Comm’rs of the Orleans Levee 

Bd. v. Huls, 852 F.2d 140, 142–43 (5th Cir. 1988) (holding political 

subdivisions cannot assert just compensation claims against the state).12

12The Court’s later holding in Gomillion v. Lightfoot does not undermine City of 

Trenton’s application here. Gomillion, 364 U.S. 339, 347, 81 S. Ct. 125, 130, 

5 L. Ed. 2d 110, 116–17 (1960) (allowing racial gerrymandering challenge to state 

statute altering boundaries of city). Gomillion stated that the analysis of City of Trenton

and its progeny was confined to “the particular prohibitions of the Constitution 

considered in those cases.” Gomillion, 364 U.S. at 344, 81 S. Ct. at 128, 5 L. Ed. 2d at 

115. City of Trenton specifically dealt with the takings clause, at issue in this case. 

Thus, Gomillion did not narrow City of Trenton in a way relevant to our analysis. More 

recently, the Supreme Court approvingly cited City of Trenton in Ysursa v. Pocatello

Education Association when rejecting a challenge to Idaho law banning payroll 

deductions for political activities for public employees. Ysursa, 555 U.S. 353, 362–63, 

129 S. Ct. 1093, 1100–01, 172 L. Ed. 2d 770, 779–80 (2009) (noting political 

subdivisions are subordinate government entities and have “no privileges or immunities 

under the federal constitution which [they] may invoke in opposition to the will of its 

 
37

We reach the same conclusion under the Iowa Constitution. If the 

DMWW, a public entity, cannot assert a takings claim against the state, 

nor can it assert such a claim against another political subdivision of the 

state—a drainage district created by state statute.13 

In Maben, we concluded downstream private landowners were not 

entitled to recover eminent domain payments from a drainage district for 

harm to their private property caused by the water flow. 187 Iowa at 

1063–64, 175 N.W. at 513–14; see also Monona County, 229 Iowa at 169–

70, 294 N.W. at 311 (reversing injunction against drainage district to 

abate nuisance and holding drainage district “cannot create a nuisance 

while operating within the ambit of powers constitutionally delegated”).

The DMWW has no greater right to such payments than a private 

downstream property owner. We do not require compensation for an 

alleged regulatory taking when a statute permits the challenged conduct 

that “substantially advances a legitimate state interest.” Hunziker v. 

State, 519 N.W.2d 367, 370 (Iowa 1994) (citing Lucas v. S.C. Coastal 

Council, 505 U.S. 1003, 1024, 112 S. Ct. 2886, 2897, 120 L. Ed. 2d 798, 

creator” (quoting Williams v. Mayor of Baltimore, 289 U.S. 36, 40, 53 S. Ct. 431, 432, 77 

L. Ed. 1015, 1020 (1933))). 

13A state political subdivision may have a takings claim against the federal 

government, because the federal government is a separate sovereign. United State v. 50 

Acres of Land, 469 U.S. 24, 31, 105 S. Ct. 451, 455–56, 83 L. Ed. 2d 376, 383 (1984) 

(concluding that property held by local government could be considered “private” 

property for takings purposes under the Fifth Amendment). Those federal takings cases 

are inapposite to a takings claim by a political subdivision against the sovereign that 

created it or another subdivision created by the same state government. See United 

States v. Carmack, 329 U.S. 230, 242 n.12, 67 S. Ct. 252, 258 n.12, 91 L. Ed. 209, 217

n.12 (1946) (“When . . . a sovereign state transfers its own public property from one 

governmental use to another, . . . a like obligation does not arise to pay just 

compensation for it.”); see also Texas Dep’t of Transp. v. City of Sunset Valley, 146 

S.W.3d 637, 645 & n.2 (Tex. 2004) (concluding city lacked takings claim against state 

because state had superior interest in roads and recognizing federal cases inapposite 

because “[t]he relationship between a city and state, which are not separate sovereigns, 

is not analogous to that between a federal government and a state”). 

_________________________
38

818 (1992)). The legislature has declared that the “drainage of surface 

waters from agricultural lands . . . shall be presumed to be a public 

benefit and conducive to the public health, convenience, and welfare.” 

Iowa Code § 468.2(1). We give effect to that legislative presumption. See 

In re Det. of Geltz, 840 N.W.2d 273, 275–76 (Iowa 2013) (relying on 

codified legislative findings to interpret statute); State ex rel. Iowa Emp’t 

Sec. Comm’n, 260 Iowa at 346, 149 N.W.2d at 391 (“In fact the drainage 

of surface waters from agricultural or other lands, or their protection 

from overflow, is presumed to be a public benefit and conducive to the 

public health, convenience and welfare.”).14 Chapter 468 substantially 

advances a legitimate state interest, thereby defeating any regulatory 

taking claim by the DMWW. 

We also conclude the DMWW cannot assert constitutional claims 

against the drainage districts under the inalienable rights clause of our 

state constitution. That provision protects the rights of citizens and does

not provide a basis for one public entity to sue another over the use of 

state-owned assets. See City of Sioux City v. Jacobsma, 862 N.W.2d 335, 

348–53 (Iowa 2015) (reviewing history and scope of inalienable rights 

clause of the Iowa Constitution).

The DMWW relies on Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168 

(Iowa 2004), for its constitutional claims. That case is distinguishable as 

involving constitutional claims raised by private citizens. See id. at 170. 

Joseph and Linda Gacke had owned their farmstead since 1974. Id. at 

14We note the legislature did not state that the presumption in section 468.2(1) 

is rebuttable, as it has expressly provided as to other statutory presumptions. See, e.g.,

Neighbors v. Iowa Elec. Light & Power Co., 175 N.W.2d 97, 99 (Iowa 1970) (applying 

Iowa Code section 489.15 (1962), which stated “[i]n case of injury to any person or 

property by any such transmission line, negligence will be presumed . . . but this 

presumption may be rebutted by proof”).

 
39

170–71. Two decades later, Pork Xtra built hog confinement facilities 

across the road. Id. at 171. The Gackes filed a nuisance action, and 

Pork Xtra asserted the statutory immunity for animal feeding operations 

in Iowa Code section 657.11(2) (1999) as an affirmative defense. Id. The 

district court struck the defense as an unconstitutional taking and 

entered judgment in favor of the Gackes on their nuisance theory. Id.

We “conclude[d] the statutory immunity cannot constitutionally deprive 

private property owners of compensation for the decreased value of their 

property due to the statutory imposition of an easement for the operation 

of an animal feeding operation as a nuisance.” Id. at 175 (emphasis 

added). As noted, our takings clause, by its terms, protects private 

property. We found the evidence sufficient to establish the hog lot 

interfered with the Gackes’ use and enjoyment of their privately owned

homestead. Id. at 180–81. By contrast, the DMWW alleges injury to 

public waters used by a public utility, rather than any interference with

private property. 

In Gacke, we further held the immunity was unconstitutional 

under the inalienable rights clause of the Iowa Constitution, article I,

section 1. Id. at 179. We reiterated that provision “was intended to 

secure citizens’ pre-existing common law rights (sometimes known as 

‘natural rights’) from unwarranted government restrictions.” Id. at 176. 

We concluded the immunity unconstitutionally hindered the Gackes’

private property rights for the benefit of the defendant’s private business 

operated as a nuisance. Id. at 179. 

We have never struck down a statutory immunity under the 

inalienable rights clause or as an unconstitutional taking in a dispute 

between public entities over use of a public resource. We decline to do so 

here. Nor will we find a due process or equal protection violation in a 
40

dispute between public entities. As set forth above, our prior holdings 

circumscribe the ability of the DMWW, a public utility created by the 

Iowa legislature, to challenge the constitutionality of the immunity for 

drainage districts provided in Iowa Code chapter 468. See In re A.W., 

741 N.W.2d at 805; Bd. of Supervisors, 263 N.W.2d at 232–34; Keller, 

223 Iowa at 1377, 275 N.W. at 97; McSurely, 140 Iowa at 170, 118 N.W. 

at 419; see also S. Macomb Disposal Auth. v. Township of Washington,

790 F.2d 500, 505 (6th Cir. 1986) (“For the same reasons, a political 

subdivision of a state cannot challenge the constitutionality of another 

political subdivision’s ordinance on due process and equal protection 

grounds.”); Hous. Auth. of Kaw Tribe of Indians of Okla., 952 F.2d at 

1189–90; Village of Arlington Heights, 653 F.2d at 1153; City of 

New Rochelle v. Town of Mamaroneck, 111 F. Supp. 2d 353, 364 

(S.D.N.Y. 2000) (“[A] municipal corporation, in its own right, receives no 

protection from the Equal Protection or Due Process Clauses vis-à-vis its 

creating state.” (quoting S. Macomb Disposal Auth., 790 F.2d at 505)); 

City of Evanston v. Reg’l Transp. Auth., 559 N.E.2d 899, 907 (Ill. App. Ct. 

1990) (“The reasoning that political subdivisions have only those rights 

which are conferred on them by the state applies logically to challenges 

brought under the United States Constitution by political subdivisions 

not only to state statutes or other state action but to the action of other 

political subdivisions.”). 

It makes sense to limit litigation between public entities because 

the people of Iowa foot the bill for both sides. That is why the legislature 

enacted Iowa Code section 679A.19 to prohibit litigation between state 

departments, boards, and commissions. Iowa Individual Health Benefit 

Reins. Ass’n v. State Univ. of Iowa, 876 N.W.2d 800, 811 (Iowa 2016) 

(citing H.F. 594, 58th G.A., Reg. Sess., explanation (Iowa 1959)). We see 
41

no cogent reason to overrule our precedent holding that subordinate 

public entities cannot challenge the constitutionality of statutes enacted 

by the legislature that created them. 

Even if we regarded the DMWW as a private entity and accepted its 

factual allegations as true, no compensable takings claim is alleged 

under the Iowa Constitution. The DMWW was not denied access to the 

Raccoon River; rather, it simply must expend additional funds for nitrate 

removal. The DMWW cites no case supporting the proposition that the 

presence of nitrates in raw river water above the level allowed for 

drinking water in homes results in a compensable taking of a riparian 

landowner’s property right. The cases hold otherwise. See, e.g.,

Mildenberger v. United States, 643 F.3d 938, 948 (Fed. Cir. 2011) 

(affirming summary judgment dismissing Fifth Amendment takings claim 

by riparian owner for water pollution); Ancarrow v. City of Richmond, 600 

F.2d 443, 448 (4th Cir. 1979) (holding private marina owner had “no 

riparian right or other property right which was ‘taken’ by the city’s 

pollution of the James River.”). The DMWW’s claim that putting nitrates 

into the Raccoon River creates a public nuisance is at odds with its own 

practice of depositing those nitrates back into the same river. Under the 

circumstances, it has failed to state an actionable takings claim under 

the Iowa Constitution. 

IV. Conclusion. 

For the reasons explained in this opinion, we answer the four 

certified questions as set forth above. 

CERTIFIED QUESTIONS ANSWERED. 

Mansfield and Zager, JJ., join this opinion. Cady, C.J., concurs in 

part and dissents in part. Appel, J., concurs in part and dissents in 

part, joined by Cady, C.J. Wiggins and Hecht, JJ., take no part. 
42

#16–0076, Bd. of Water Works Trustees

v. Sac Cty. Bd. of Supervisors

CADY, Chief Justice (concurring in part and dissenting in part).

I join in the partial concurrence and dissent by Justice Appel. I 

write separately to build upon an important point of this federal litigation 

and to add another. 

The role of this court is not to decide the outcome of the case, but 

to determine if the basis of the lawsuit is supported by our state law. It 

is abundantly clear that Iowa’s drainage district law did not originate and 

was not developed over time with the thought that a drainage district 

could be a polluter. If it had, I am convinced our law would have 

developed in a way that would have recognized a clear remedy. 

Nevertheless, the equitable remedies now asserted are not new to 

our law; they are only difficult to see in the context of this case. That 

difficulty is not, however, a reason to dismiss the case, especially when 

the facts in evidence have not yet been presented. The seriousness of 

facts can often help to see the availability of equitable relief. 

Furthermore, law develops through our changed understanding, 

including our understanding of the environmental impact of drainage 

districts. One of the fundamental principles of law is for remedies to be 

available when we discover wrongs. Pollution of our streams is a wrong, 

irrespective of its source or its cause. 

I believe the focus of our attention should be the end to which this 

lawsuit is directed. This state is blessed with fertile soil, vast expanses of 

teeming wilderness, and an overwhelming abundance of fresh water. The 

role and purpose of drainage districts in Iowa is important, but no more 

important than this state’s enduring role of good stewardship. This 

lawsuit serves to reinforce the critical balance at stake and asks the 
43

rhetorical question posited years ago by one of the founders of modern 

conservation, “What good is an undrained marsh anyhow?”15 We should 

respond when this balance has shifted too far in either direction. 

The law of this state is but a reflection of the values of its people. 

As we go forward as a people, so too must the law advance our values. 

We can do this by applying existing remedies in new ways or by applying 

new remedies to our existing values. This concept of remedy is not 

exclusive to the judicial branch. We all can engage in this discussion 

and act. As every farmer knows, the work is never done. 

For these reasons and for the reasons stated by Justice Appel, I 

concur in part and dissent in part. 

15Aldo Leopold, A Sand County Almanac and Sketches Here and There 100 (Spec. 

Commemorative ed. 1989). Aldo Leopold, perhaps not surprisingly, was an Iowan. 

 
44

#16–0076, Bd. of Water Works Trustees v. Sac Cty. Bd. of Supervisors

APPEL, Justice (concurring in part and dissenting in part).

I cannot join the majority opinion. Nonetheless, for the reasons 

expressed below, I concur in part and dissent in part.

I. Introduction.

A. What Is Presented: Significant Issues—Ghosts and Goblins. 

This case touches upon some difficult and profound issues in our law. 

These issues include the nature of riparian water rights, the proper 

approach, if any, to controlling pollution of rivers and streams as a result 

of common agricultural practices, and the ability of a government 

subdivision to assert claims based on allegations of water pollution 

against another governmental subdivision.

For purposes of this case I, like the majority, assume the facts that 

have been provided to us by the federal district court in this certified 

question matter. Under the district court’s certification order, we are to 

assume that the defendant drainage districts are collecting agricultural 

runoff that is then discharged into the Raccoon River and that the runoff 

is so polluted with nitrates that the water withdrawn by the Des Moines 

Water Works (DMWW) does not meet the health and safety standards of 

the Safe Drinking Water Act as amended. See 42 U.S.C. § 300g-1 (2012). 

As a result of the noncompliance, the DMWW expends significant funds 

to remove the nitrates from the water before the water is sold to its 

customers. DMWW seeks to recover damages for past cleanup efforts 

and an injunction to prevent the defendants from continuing to pollute 

the Raccoon River in the future.

To consider the issues, I first explore the contours of our law 

related to drainage districts. Taking the facts provided by the federal 

district court as true, I then consider whether money damages are 
45

available under our caselaw and applicable statutes. I then consider 

whether any alleged limitation in the power of drainage districts to pay 

money damages gives rise to a state constitutional claim rooted in the 

due process, equal protection, or inalienable rights clauses of the Iowa 

Constitution. I thereafter explore the law or remedies as well as the 

substance of the law of nuisance.

Finally, I consider whether DMWW may bring a takings claim 

against the defendants because of its alleged pollution of the Raccoon 

River. I consider whether property interests are involved, whether the 

property interests are “private” for the purposes of takings law, and 

whether DMWW has standing to bring a takings claim against the 

drainage district defendants.

B. What Is Not Presented: False Trails. Before launching into 

the substantive analysis, it is important to emphasize what this case is 

not about. It raises no question about who owns the water—all agree 

that the state owns the water. See Iowa Code § 455B.171(39) (2015). It 

raises no question of navigation rights. See Gibson v. United States, 166 

U.S. 269, 271–72, 17 S. Ct. 578, 579, 41 L. Ed. 996, 1000 (1897). It 

raises no question of allocation of limited quantities of water. See City of 

Trenton v. New Jersey, 262 U.S. 182, 185, 43 S. Ct. 534, 536, 67 L. Ed. 

937, 940 (1923). It raises no question of flooding related to the operation 

of drainage districts. See Sanguinetti v. United States, 264 U.S. 146, 150, 

44 S. Ct. 264, 265, 68 L. Ed. 608, 610–11 (1924).

All the legal questions raised in this case revolve around the 

allegation made by the DMWW that the drainage district defendants have 

conducted drainage district operations in a way that has caused 

unlawful pollution of the waters of the Raccoon River which DMWW uses 
46

for purposes of providing water to its customers. In short, this is a 

pollution case.

II. Setting the Table: Overview of Drainage District and 

Nuisance Law.

A. Introduction. Before diving into the issues, it is important to 

have a bird’s-eye overview of the relevant law. I begin by surveying the 

constitutional environment as the starting point for consideration of the 

issues raised in this case. I next turn to the statutory environment, 

including not only the statutory framework for drainage districts but the 

statutory provisions related to nuisance and water pollution. These 

statutory provisions are important because the interrelationship between 

environmental law and drainage district law is at the heart of this case. 

Finally, I briefly review the common law of nuisance, which is not 

preempted by either statutory nuisance or any other environmental 

statute.

B. Constitutional Environment.

1. Article I, section 18: Authorization of drainage districts. Drainage 

districts are authorized by the eminent domain article of the Iowa 

Constitution. This constitutional provision authorizes the general 

assembly to

pass laws permitting the owners of lands to construct 

drains, ditches, and levees for agricultural . . . purposes 

across the lands of others, and provide for the organization 

of drainage districts, vest the proper authorities with power 

to construct and maintain levees, drains and ditches and to 

keep in repair all drains, ditches, and levees heretofore 

constructed under the laws of the state, by special 

assessments upon the property benefited thereby.

Iowa Const. art. I, § 18.

Further, article I, section 18 provides for condemnation powers for 

drainage districts: “The general assembly may provide by law for the 
47

condemnation of such real estate as shall be necessary for the 

construction and maintenance of such drains, ditches and levees, and 

prescribe the method of making such condemnation.” Id.

2. Article III, section 39A: County home rule. In 1978, the Iowa 

Constitution was amended to provide for county home rule. Specifically, 

article III, section 39A provides,

Counties or joint county-municipal corporation governments 

are granted home rule power and authority, not inconsistent 

with the laws of the general assembly, to determine their 

local affairs and government, except that they shall not have 

power to levy any tax unless expressly authorized by the 

general assembly. . . . 

. . . .

The proposition or rule of law that a county or joint 

county-municipal corporation government possesses and 

can exercise only those powers granted in express words is 

not a part of the law of this state.

Iowa Const. art. III, § 39A. This constitutional provision is important 

because it has potential application to a key issue in this case, namely, 

the scope of power of drainage districts.

C. Iowa Statutory Environment.

1. Iowa Code chapter 468: The drainage district framework. An 

elaborate and detailed statutory framework for drainage districts is 

codified in Iowa Code chapter 468. Under chapter 468, the board of 

supervisors of a county is authorized to create a drainage district and 

“cause to be constructed” within the drainage district “any levee, ditch, 

drain, or watercourse, or settling basins” and “to straighten, widen, 

deepen, or change any natural watercourse” whenever such action will 

be “of public utility or conducive to the public health, convenience or 

welfare.” Iowa Code § 468.1.
48

Iowa Code section 468.2 further provides that the drainage of 

surface waters from agricultural lands and other lands or the protection 

of lands from overflow is “presumed to be a public benefit and conducive 

to the public health, convenience, and welfare.” The legislature has 

directed that the provisions of laws related to drainage and protection 

from overflow “shall be liberally construed to promote leveeing, ditching, 

draining, and reclamation of wet, swampy, and overflow lands.” Id.

§ 468.2(2).

The statute provides for the appointment of commissioners to 

apportion and assess the costs and expenses of constructing proposed 

improvements. Id. § 468.38. When the board of supervisors has finally 

determined the matter of assessments of benefits and apportionment for 

drainage district improvements, the board is given the power to levy the 

assessments as fixed by it upon lands within the district. Id. § 468.50. 

The law provides that such taxes “shall be paid out only for purposes 

properly connected with and growing out of the county drainage and 

levee districts on order of the board.” Id. § 468.54.

After a drainage district has been created and improvements 

constructed, the statute authorizes repairs and additional improvements. 

With respect to repairs, the board is authorized 

to restore or maintain a drainage or levee improvement in its 

original efficiency or capacity, . . . repair any damaged 

structures, remove weeds and other vegetable growth, and 

whatever else may be needed to restore or maintain such 

efficiency or capacity or to prolong its useful life. 

Id. § 468.126(1)(a).

The board is also authorized to construct improvements. Id.

§ 468.126(4). The term “improvement” is defined as “a project intended 

to expand, enlarge, or otherwise increase the capacity of any existing 
49

ditch, drain, or other facility above that for which it was designed.” Id. 

Costs of improvements are to be paid out of drainage district funds or, if 

funds are not sufficient, from assessments on land. Id. §§ 468.127, .147. 

The assessments must be made at one time, but may be collected in 

installments. Id. § 468.127. In cases when current funds are 

insufficient and the improvement cannot be funded by a single year’s 

levy, the board may issue drainage bonds to finance the improvements. 

Id. § 468.74.

Chapter 468 does not contain a provision that addresses potential 

pollution arising from the operation of drainage districts. There is a 

provision in current law related to nuisance from overflow:

Any ditch, drain, or watercourse which is now or 

hereafter may be constructed so as to prevent the surface 

and overflow water from the adjacent lands from entering 

and draining into and through the same is hereby declared a 

nuisance and may be abated as such.

Id. § 468.150.

Notably, there are no provisions in chapter 468 specifically 

declaring that money damages may not be paid by a drainage district. 

Further, there are no provisions expressly stating that generally 

applicable nuisance law does not apply against a drainage district. 

Indeed, there are no provisions of Iowa Code chapter 468 expressly 

exempting drainage districts from provisions of law germane to this case.

2. Iowa Code chapters 455A and B. Iowa Code chapters 455A and 

B provide the framework for the Iowa Department of Natural Resources. 

The purpose for creating the department is to protect “Iowa’s air, soils, 

waters, and rich diversity of life” because “[t]he well-being and future of 

Iowa depend on these natural resources.” Id. § 455A.15. The general 

assembly found “[t]here has been a significant deterioration in the quality 
50

of Iowa’s surface waters and groundwaters” because of human activity. 

Id.; see also id. § 455B.262 (describing the importance to the state of 

protecting “life and property from floods” and “the orderly development, 

wise use, protection, and conservation of the water resources of the 

state”).

In order to accomplish this goal, the department “has the primary 

responsibility for . . . managing fish, wildlife, and land and water 

resources in this state.” Id. § 455A.2; see also id. § 455A.16 (describing 

the policy of the state of Iowa to protect Iowa’s waters, among other 

natural resources, for the benefit of present and future citizens). The 

director of the department is required to cooperate with the Department 

of Agriculture and Land Stewardship in the “administration of programs 

relating to water quality improvement and watershed improvements.” Id.

§ 455A.4(1)(j). The Environmental Protection Commission, created by 

Iowa Code section 455A.6, is required to protect Iowa’s groundwater and 

water supply and is directed to cooperate with “cities and other 

subdivisions of the state” as well as landowners in actions “relating to 

flood control and the use of water resources.” Id. § 455B.263(7).

3. Iowa Code chapter 657: Statutory nuisance. Iowa Code section 

657.1 provides for a statutory nuisance civil action. Among other things, 

this section states,

Whatever is injurious to health, indecent, or unreasonably 

offensive to the senses, or an obstruction to the free use of 

property . . . is a nuisance, and a civil action by ordinary 

proceedings may be brought to enjoin and abate the 

nuisance and to recover damages sustained on account of 

the nuisance.

Id. § 657.1. Iowa Code section 657.2 then lists a number of actions or 

situations that are nuisances under the chapter. In particular, a 

nuisance includes “[t]he corrupting or rendering unwholesome or impure
51

the water of any river, stream, or pond, or unlawfully diverting the same 

from its natural course or state, to the injury or prejudice of others.” Id.

§ 657.2(4).

Iowa Code section 657.3 provides criminal penalties related to 

nuisances:

Whoever is convicted of erecting, causing, or 

continuing a public or common nuisance as provided in this 

chapter, or at common law . . . , where no other punishment 

therefor is specially provided, shall be guilty of an aggravated 

misdemeanor and the court may order such nuisance 

abated, and issue a warrant . . . .

Finally, chapter 657 provides for a process including the issuance 

of warrants to cause abatement of nuisances and describes how the 

costs of abating a nuisance may be collected. Id. §§ 657.6–.7.

Chapter 657 provides a safe harbor for animal agricultural 

producers who manage their operations in accordance with state or 

federal law. Id. § 657.11(1). Aside from the exception for animal 

agricultural producers, there is no other agriculturally related exemption 

from nuisance law in Iowa Code chapter 657. In Gacke v. Pork Xtra, 

L.L.C., however, we held that this exception was unconstitutional as a 

per se taking without just compensation. 684 N.W.2d 168, 185 (Iowa 

2004).

D. Iowa Common Law Environment. We have held that 

statutory nuisance does not preempt a common law nuisance action. 

Freeman v. Grain Processing Corp., 848 N.W.2d 58, 70 (Iowa 2014); 

Guzman v. Des Moines Hotel Partners, Ltd. P’ship, 489 N.W.2d 7, 10 

(1992). Thus, in addition to the statutory nuisance described in Iowa 

Code chapter 657, a common law claim remains available to persons 

alleging environmental harms. The elements of common law nuisance 

are “(1) unlawful or anti-social conduct that (2) in some way injures (3) a 
52

substantial number of people” for public nuisance and “an actionable 

interference with a person’s interest in the private use and enjoyment of 

his land” for private nuisance. Pottawattamie County v. Iowa Dep’t of 

Envtl. Quality, 272 N.W.2d 448, 453 (Iowa 1978) (second quote quoting 

Patz v. Farmegg Prods., Inc., 196 N.W.2d 557, 560 (Iowa 1972)); accord 

State ex rel. Turner v. Younker Bros. Inc., 210 N.W.2d 550, 564 (Iowa 

1973). We have held that pollution may constitute a public or private 

nuisance under the common law. See, e.g., Kasparek v. Johnson Cty. Bd. 

of Health, 288 N.W.2d 511, 520 (Iowa 1980); Pottawattamie County, 272 

N.W.2d at 453; Kriener v. Turkey Valley Cmty. Sch. Dist., 212 N.W.2d 

526, 531–32 (Iowa 1973); Bader v. Iowa Metro. Sewer Co., 178 N.W.2d 

305, 307 (Iowa 1970).

III. More Table Setting: Iowa Caselaw Involving Drainage 

Districts and Environmental Regulation.

A. Introduction. I now turn to the caselaw related to drainage 

districts. First, I examine the opinions on the nature of drainage 

districts and their powers. I then explore the cases regarding the legal 

duties of drainage districts that arise both within Iowa Code chapter 468 

and from external sources. Finally, I consider the caselaw applying the 

law of nuisance to agricultural concerns.

B. The Rise (and Fall) of “No Legal Entity” Theory. The older 

notion that a drainage district is a nonjuristic entity is reflected in Clary 

v. Woodbury County, 135 Iowa 488, 113 N.W. 330 (1907). In that case, 

we declared

[a drainage district] is not a person or a corporation. It is 

nothing more than a definite body or district of land 

constituting an improvement district. That it has no legal 

entity is manifest from various sections [of the Code] which 

place the entire matter under the control and supervision of 

the board of supervisors.
53

Id. at 492, 113 N.W. at 332; see also Gish v. Castner-Williams & Askland 

Drainage Dist., 136 Iowa 155, 157, 113 N.W. 757, 757 (1907) (noting that 

a drainage district “is not such [a] legal entity as is known to or 

recognized by law as a proper party to adversary proceedings”).

The “no legal entity” doctrine at first seemed to stick. In Board of 

Supervisors v. District Court, we characterized a drainage district as 

merely “a segregated area of land, which has been set out by legal 

proceedings, and is subject to assessment for the construction of certain 

drainage improvements.” 209 Iowa 1030, 1033, 229 N.W. 711, 712 

(1930). Thus, a drainage district was simply a tract of land with metes 

and bounds that might be subject to improvement. It was acres of real 

estate, nothing more. You cannot sue the back forty.

Over time, however, the no-legal-entity theory began to fall apart. 

For instance, in Wise v. Board of Supervisors, we considered a case in 

which the ditch of a drainage district was in poor repair such that it was 

not operating properly. 242 Iowa 870, 872, 48 N.W.2d 247, 248 (1951). 

The plaintiffs, owners of farmland in the district, petitioned the board of 

supervisors to repair the ditch. Id. at 871, 48 N.W.2d at 248. The board 

abandoned the repair project, however, when other landowners objected 

to the expense. Id. at 872, 48 N.W.2d at 248.

In Wise, we held, however, that it was clear the “repairs are 

necessary to make the drainage improvement function properly.” Id. at 

874, 48 N.W.2d at 249. We granted mandamus to order the board to 

make the necessary improvements. Id. at 875, 48 N.W.2d at 249. We 

left the manner in which to proceed within the sound discretion of the 

board. Id. Wise plainly stands for the proposition that there is at least 

one equitable remedy available to require drainage districts to perform a 

duty, namely, mandamus.
54

We drifted still further away from the no-legal-entity doctrine in 

Wapello County v. Ward, 257 Iowa 1231, 136 N.W.2d 249 (1965). In 

Wapello County, we considered a dispute over county zoning. Id. at 

1232, 136 N.W.2d at 249. In passing, we noted that various bodies, 

including drainage districts, have long been known to the law but defined 

“only in regard to certain specific purposes.” Id. at 1235, 136 N.W.2d at 

251. We characterized these various bodies as “quasi municipal 

corporations.” Id. The discussion, however, was dictum.

But the Wapello County dictum was followed by a concrete holding 

in State ex rel. Iowa Employment Security Commission v. Des Moines 

County, 260 Iowa 341, 149 N.W.2d 288 (1967). In that case, we 

considered whether a drainage district could be considered a “juristic 

entity” for purposes of retirement benefits under Iowa Code chapter 97C. 

Id. at 345, 149 N.W.2d at 290. We concluded that drainage districts 

were a juristic entity because a drainage district was a “legally 

recognizable or identifiable political body, unit, organization, or 

instrumentality of the state or any one or more of its political 

subdivisions.” Id. at 345–46, 149 N.W.2d at 290–91. We said, “[A]n 

organized drainage district is a political subdivision of the county in 

which it is located, its purpose being to aid in the governmental 

functions of the county. It is a legally identifiable political 

instrumentality.” Id. at 346, 149 N.W.2d at 291.

As a result, the district court’s holding that it lacked subject 

matter jurisdiction was overruled. Id. at 347, 149 N.W.2d at 291. Iowa 

Employment Security demonstrates how far our cases have travelled from 

the no-legal-entity doctrine of the earlier cases. See Gish, 136 Iowa at 

157, 113 N.W. at 757; Clary, 135 Iowa at 492, 113 N.W. at 332. 

Drainage districts were now being recognized for what they obviously 
55

were: a political subdivision of the county in which they were located. 

See Iowa Emp’t Sec. Comm’n, 260 Iowa at 346, 149 N.W.2d at 291.

We declined to invoke the notion that a drainage district was not 

an entity in Voogd v. Joint Drainage District No. 3–11, 188 N.W.2d 387, 

393 (Iowa 1971). In Voogd, plaintiff landowners sought to recover 

payments of past drainage assessments and to enjoin the counties’ 

collection of future assessments to pay for repairs. Id. at 388. The 

problem in the case was that the counties originally approved the repair 

based on low-ball estimates. Id. at 389. When costs skyrocketed, the 

counties continued the repair project. Id. Plaintiffs cried foul. Id. at 

390.

We agreed with the plaintiffs and held that future installments 

could not be collected. Id. at 395. In addition, we ordered a refund of 

some of the amount that the plaintiffs had already paid. Id. In Voogd, 

we saw no problem in a drainage district being ordered to repay the 

amount of funds previously collected.

Fourteen years later, in Fisher v. Dallas County, we considered a 

case in which the plaintiff claimed to have experienced flooding problems 

because of the operation of a drainage district. 369 N.W.2d 426, 427 

(Iowa 1985). The plaintiffs in Fisher did not contest our prior holdings. 

Id. at 429–30. We repeated the familiar refrain that drainage districts 

only had those powers expressly conferred by the legislature. Id. at 429. 

On the question of money damages, we offered the qualified observation 

that drainage districts had no corporate existence “for that purpose.” Id. 

In Fisher, we characterized the unavailability of money damages as 

“immunity from suit in tort.” Id. at 430.

Yet, Fisher cited Wise and Voogd with apparent approval. Id. at 

429. Fisher did so, in part, by linking the relief afforded in each case to a 
56

statutory provision. Id. We stated that the mandamus afforded in Wise

was based upon a duty to maintain a drainage district imposed by Iowa 

Code section 455.135(1). Id. We stated that action in Voogd challenging 

the validity of assessments was based on the power to levy assessments 

in Iowa Code section 455.45. Id.

The fighting issue in Fisher was whether the enactment of the 

Municipal Tort Claims Act, Iowa Code chapter 613A (now chapter 670), 

overruled our prior cases on the immunity of drainage districts from 

suits in tort. Id. Under the Act, “municipalities” were subject to liability 

in tort with certain exceptions. Id. at 430. In Fisher, we held that a 

drainage district was not a municipality. Id. We reasoned that a 

drainage district’s immunity from suits in tort did not rise or fall with the 

doctrine of sovereign immunity. Id. at 430. We retreated to old 

formulations, including the dubious suggestion that a drainage district 

was “merely an area of land.” Id. We did not cite Iowa Employment 

Security, which declared drainage districts were “a political subdivision of 

the county in which it is located” and “a legally identifiable political 

instrumentality,” 260 Iowa at 346, 149 N.W.2d at 291, nor did we cite 

Voogd, which declared that drainage districts were “political subdivisions 

of counties,” 188 N.W.2d at 393.

Justice Larson dissented. Fisher, 369 N.W.2d at 431 (Larson, J., 

dissenting). He concluded that a drainage district was a “unit of local 

government” under the Municipal Tort Claims Act and, as a result, was 

amenable to tort law suits. Id. Although the dissent is cryptic, it is 

apparent that Justice Larson was not buying the no-legal-entity 

argument. His dissent was more consistent with Wapello County, Iowa 

Employment Security, and Voogd than the approach of the majority.
57

The next case of interest is Gard v. Little Sioux Intercounty Drainage 

District, 521 N.W.2d 696 (Iowa 1994). In Gard, we rejected a claim for 

money damages by the estate of drowned boaters. Id. at 697, 699. We 

cited Fisher for the proposition that drainage districts have limited 

powers. Id. at 698. We emphasized the narrow proposition that “Iowa 

has never allowed tort claims for money damages to be made against a 

drainage district.” Id. (emphasis added). The focus in Gard was not on a 

no-legal-entity theory, but on the limited statutory power of drainage 

districts.

Finally, we considered a claim against a drainage district in 

Chicago Central & Pacific Railroad v. Calhoun County Board of 

Supervisors, 816 N.W.2d 367 (Iowa 2012). A railroad sought to recover 

monies voluntarily spent on repairs of a drainage district improvement. 

Id. at 368. The railroad in this case faced a conundrum. See id. 

Because of problems with a drainage ditch, it could not operate its 

railroad. Id. Yet, it would take some time to get the drainage district to 

move on the problem. Id. The railroad decided that instead of waiting 

for the drainage district to resolve the problem, which could take 

considerable time, the railroad voluntarily performed the repair to get its 

operations up and running as soon as possible. Id. at 369. It then sued 

the drainage district, seeking to recover the cost of the repair. Id. We 

declared that while the railroad could have filed a mandamus action to 

force the railroad to make the repair, it could not, under our caselaw, 

seek money damages. Id. at 378. Chicago Central did not mention the 

no-legal-entity theory.

C. The Overflow Cases: Avoiding Statutory Suicide. Now I turn 

to what might be called “the overflow cases.” The classic overflow case 

arises when downstream landowners complain when upland drainage 
58

districts, by removing water and directing it into rivers and streams, 

cause flooding downstream.

The seminal overflow case is Maben v. Olsen, 187 Iowa 1060, 175 

N.W. 512 (1919). In Maben, we considered whether a downstream 

landowner could obtain an injunction against a drainage district where 

the activities of the drainage district caused overflow downstream. Id. at 

1063, 175 N.W. at 513. In Maben, we characterized the controlling 

question as,

Is it unauthorized and unlawful to establish a drainage 

district if so doing will cause water to come into the natural 

outlet for the district more rapidly and in greater quantity 

than if the land in the district were left to send its surface 

water into said outlet without interference by a drainage 

system, and if it further appears that the increase in rapidity 

and volume may overtax the natural outlet and cause a 

damaging overflow to lands below the entrance to such 

outlet.

Id.

In Maben, we held that the Iowa Constitution expressly authorized 

the legislature to give the board of supervisors the power to do precisely 

what we had described. Id. at 1063–64, 175 N.W. at 513–14. The 

specific question was further characterized as whether the delegation of 

power to establish drainage systems “may be interfered with by a court of 

equity because, through its exercise, a more rapid and a greater flow will 

reach a natural outlet, to the possible or even probable injury of the 

lower owners.” Id. at 1065, 175 N.W. at 514. But, as we pointed out, the 

“cardinal purpose” of draining agricultural lands is acceleration and 

increased overflow. Id.

In short, the result urged by the Maben plaintiff would ensure that 

the power given to the drainage districts could not “be used to 

accomplish the only purpose for which it [was] given.” Id. In other 
59

words, the legislature could not have intended overflow to be a nuisance 

because if it did drainage districts simply could not function. Id. 

Application of generally applicable nuisance law was thus flatly 

inconsistent with the specific purpose of drainage district.

It is hard to argue against the reasoning in Maben. Indeed, prior 

to the enactment of article I, section 18, the biggest obstacle to draining 

farmland was securing the right to drain water onto the land of another. 

See Joseph W. Otto, Subject to Overflow: The History of Drainage Districts 

in Jasper County, Iowa 25 (Aug. 2012) (unpublished M.A. dissertation, 

Appalachian State University), https://libres.uncg.edu/ir/asu/f/

Otto,%20Joseph_2012_Thesis.pdf. Article I, section 18 and the 

implementing statutes were designed to eliminate the problem—that is 

why Maben is clearly correct.

But it is important to note the narrowness of the reasoning and its 

holding. Clearly, Maben had nothing to do with a claim arising from 

alleged pollution. And, in fact, the Maben court went to great lengths to 

distinguish cases involving pollution of waterways by government 

entities, thereby demonstrating the narrowness of its holding. 187 Iowa 

at 1068–70, 175 N.W. at 515–16; see, e.g., City of Atlanta v. Warnock, 18 

S.E. 135, 135 (Ga. 1892) (holding that if municipality goes beyond 

authority and injures private property by the opening of manholes and 

releasing poisonous gases, it is responsible for resulting damage); Gage v. 

City of Chicago, 60 N.E. 896, 897 (Ill. 1901) (holding that an ordinance 

which resulted in preventing the connection of sewer systems was void 

because the city had “no right to empty the sewage upon private 

property”); State v. Concordia, 96 P. 487, 489–90 (Kan. 1908) (holding a 

city could be liable for polluting a river and damaging private 

landowners, even though a statute authorized the city to dump sewage 
60

into the river); Thompson v. City of Winona, 51 So. 129, 129 (Miss. 1910) 

(holding a city liable for damages when it constructed a sewer system 

which polluted a waterway and damaged the plaintiff); Smith v. City of 

Sedalia, 53 S.W. 907, 912 (Mo. 1899) (holding a city could be liable for 

polluting a stream flowing into plaintiff’s farm, despite city establishing 

sewer system under legislative mandate); Markwardt v. City of Guthrie, 

90 P. 26, 28–29 (Okla. 1907) (holding that a lower property owner has a 

cause of action, including injunctive relief, against a city for polluting a 

stream); Pearce v. Gibson County, 64 S.W. 33, 36 (Tenn. 1901) (issuing 

an injunction prohibiting a municipality from emptying sewage from a 

courthouse upon the land of the complainant).

The pollution cases distinguished in Maben were consistent with 

contemporary Iowa law. In Vogt v. City of Grinnell, we considered an 

action brought against a city for discharging sewage into the stream to 

the material injury of lower riparian owners. 133 Iowa 363, 364, 110 

N.W. 603, 603 (1907). We noted that a statute authorized the city to 

construct a system of sewers but did not authorize emptying the sewers 

into a running stream even if the system was functioning as designed. 

Id. at 365, 110 N.W. at 603. The sewer system was operating perfectly in 

Vogt, but the unauthorized discharge of sewage to the material injury of 

riparian proprietors was a wrongful act. Id.; see also Boyd v. City of 

Oskaloosa, 179 Iowa 387, 390, 161 N.W. 491, 492 (1917).

We considered a later overflow case in Miller v. Monona County, 

229 Iowa 165, 294 N.W. 308 (1940). In Monona County, the plaintiff 

sought a mandatory injunction to abate nuisances caused by water 

overflow as a result of dust storms and vegetation filling the ditches of 

the drainage district. Id. at 168, 294 N.W. at 310. In Monona County we 

stated, “The drainage district is a special creation of the legislature and it 
61

requires no argument to sustain the proposition that it cannot create a 

nuisance while operating within the ambit of power constitutionally 

delegated.” Id. at 169, 294 N.W. at 311.

Whenever a court says that no argument is necessary to sustain a 

proposition, we should be especially alert for potential error. Like 

Maben, Monona County, however, was not a pollution case. It was 

another overflow case. The Monona County court had no interest in 

thrusting overflow liability onto drainage districts, even if the overflow 

was a result of a failure to repair drainage districts. See id.

D. Compliance with Internal Duties Arising from Iowa Code 

Chapter 468. There are a number of cases where plaintiffs have sought 

to require drainage districts to comply with statutory duties arising from 

Iowa Code chapter 468. For instance, as described earlier, we heard a 

case where plaintiffs sought to require the board of supervisors to repair 

a drainage ditch, which was obstructed and in poor repair. Wise, 242 

Iowa at 871–72, 48 N.W.2d at 248. Originally, the board began the 

project, but abandoned it when other landowners in the district objected 

to the expense. Id. at 872, 48 N.W.2d at 248.

In Wise, we held that it was clear under the record that “repairs 

are necessary to make the drainage improvement function properly.” Id.

at 874, 48 N.W.2d at 249. We granted mandamus to order the board to 

make the improvements. Id. at 875, 48 N.W.2d at 249. Mandamus is an 

appropriate remedy to compel drainage districts to perform a legal duty 

under Wise. Additionally, in Voogd, we granted an injunction against a 

drainage district to prevent the collection of future assessments to pay 

for a drainage district improvement. 188 N.W.2d at 395.

The availability of mandamus to require a drainage district to 

perform needed repairs was also discussed in Chicago Central, which was 
62

described above. 816 N.W.2d at 373–74. We held that money damages 

were not available, but we declared that the railroad could have filed a 

mandamus action to compel the district to make the repair. Id. at 378.

E. Compliance with External Statutory Duties Arising Outside 

Chapter 468: Defeat of the Impenetrable Legal Bubble Theory. We 

have, on occasion, considered the interplay between Iowa Code chapter 

468 and other statutes. The cases demonstrate that drainage districts 

are not hermetically sealed in an impenetrable legal bubble from other 

requirements of the Code.

In Iowa Employment Security, the Iowa Employment Security 

Commission assessed and levied taxes and interest claimed due from a 

drainage district under Iowa Code chapters 97B and 97C. 260 Iowa at 

342, 149 N.W.2d at 289. There was no statutory provision in Iowa Code 

chapter 468 authorizing the drainage district to pay these taxes. Id. at 

343–44, 149 N.W.2d at 289–90. The Iowa Employment Security 

Commission, however, sought to compel the drainage district to “perform 

asserted statutory duties.” Id. at 346, 149 N.W.2d at 291. We agreed 

with the commission and held that the provisions of Iowa Code chapter 

97B and 97C could be enforced and that mandamus against the 

drainage district was “the proper remedy.” Id. Thus, equitable remedies 

are available to enforce against drainage districts duties that arise from 

statutory provisions outside Iowa Code chapter 468.

There is one other case of interest. In Polk County Drainage District 

Four v. Iowa Natural Resources Council, we considered whether a 

drainage district had complete authority over construction of 

improvements under chapter 468 or whether the Iowa Natural Resources 

Council (INRC) had the power to approve or deny permits for such 

construction under Iowa Code chapter 455A. 377 N.W.2d 236, 239–40 
63

(Iowa 1985). We held that the INRC had concurrent authority over such 

construction. Id. at 241. We emphasized that when two statutes deal 

with the same subject, courts endeavor to give effect to both enactments. 

Id. While drainage district statutes were to be liberally construed, 

according to the Polk County court, environmental policy statutes were 

also to be liberally construed because of the important policy 

considerations underlying them. Id. Polk County stands for the 

proposition that claims of exclusive authority by drainage districts must 

give way to an environmental policy statute governing the same subject 

matter.

F. No Money Damages for Torts. As can be seen above, we have, 

in a number of cases, refused to allow an award of money damages 

against a drainage district. But our statements in that regard have been 

sometimes limited. For example, in Fisher, we considered a case where 

plaintiffs experienced flooding problems because of the operation of a 

drainage district. 369 N.W.2d at 427. On the question of money 

damages, we offered the limited observation that drainage districts have 

no corporate existence “for that purpose.” Id. at 429. We also offered the 

broad characterization that the unavailability of money damages against 

a drainage district amounted to “immunity from suit in tort.” Id. at 430.

The next case of interest is Gard, 521 N.W.2d at 696. In Gard, we 

rejected a claim for money damages by the estate of drowned boaters. Id.

at 699. We cited Fischer for the proposition that drainage districts have 

limited powers. Id. at 698. We emphasized the narrow proposition that 

“Iowa has never allowed tort claims for money damages to be made 

against a drainage district.” Id. (emphasis added).

We made a similar declaration in Chicago Central. Although it was 

in the context of reimbursement for a repair, we restated that although 
64

mandamus was available to cause a drainage district to do its duty, 

money damages were not an available remedy. Chicago Cent., 816 

N.W.2d at 378.

G. Silence! Post Home Rule Cases. Finally, there is one more 

observation that must be made regarding our drainage district caselaw. 

No-money-damages cases like Fisher and Gard emphasize the limited 

nature of drainage district authority. See Gard, 521 N.W.2d at 698; 

Fisher, 369 N.W.2d at 429. Yet, in 1978, Iowa passed an amendment to 

the Iowa Constitution establishing county home rule. Iowa Const. art. 

III, § 39A. Under county home rule, the so-called Dillon rule is abolished 

and local governments have broadened powers. Polk Cty. Bd. of 

Supervisors v. Polk Commonwealth Charter Comm’n, 522 N.W.2d 783, 

790–91 (Iowa 1994). While several of our drainage district cases 

occurred after the enactment of the county home rule amendment, none 

of them consider the impact of home rule on our cases. In this case, 

DMWW claims that Fisher and Gard are no longer viable authority 

because the power of drainage districts is no longer limited as it was 

prior to county home rule.

IV. Potential Remedies Against Drainage Districts.

A. Introduction. It seems to me that much of the rhetoric of our 

drainage district cases is not entirely accurate. The notion that drainage 

districts are not entities strikes me as simply wrong. Further, although 

we declare that drainage districts have “immunity” from money damages, 

I am not sure that is an accurate description of what our caselaw in fact 

supports. I do not see in our cases a legislative or judicial policy 

judgment that drainage districts should be generally immune from 

potential damages in tort.
65

Instead, I conclude that the real issue at stake here is not whether 

we should abandon the wrong-headed notion that drainage districts are 

not entities or whether we should abrogate some kind of immunity based 

upon some perception of public policy. The real question relates to the 

ability, or lack of ability, of a drainage district to comply with a courtordered damage or injunctive remedy related to pollution. I am inclined 

to agree with the drainage district that an injunction against a state 

official “is utterly meaningless” when the official against whom the 

injunction is granted lacks the power to redress the associated injuries. 

Okpalobi v. Foster, 244 F.3d 405, 426–27 (5th Cir. 2001). In short, the 

remedies questions posed in this case are about whether the defendants 

have the authority to comply with a potential judgment for money 

damages or an injunction fashioned to abate a nuisance should the 

DMWW prevail on its substantive nuisance claims. These are questions 

of law, not fact.

B. Money Damages and Application of Stare Decisis.

1. Introduction. On the issue of money damages, the drainage 

district defendants argue that we are bound by stare decisis to follow our 

precedents. As shown above, in several contexts, our cases proclaim 

that money damages in tort are not available against drainage districts, 

most persuasively because of their limited statutory powers.

DMWW draws our attention to three potential problems. First, 

DMWW attacks the general reasoning employed in our no-moneydamages cases and invites us abandon them as a relic of the past. 

Second, DMWW points out that our no-money-damages cases do not 

involve cases concerning pollution or, more narrowly, pollution allegedly 

arising in violation of statutory nuisance. Third, DMWW challenges the 

reasoning of our cases refusing to allow money damages. Finally, 
66

DMWW contends that even if our cases might be otherwise be entitled to 

stare decisis, the enactment of county home rule in 1978 deprives these 

cases of their precedential value.

2. Rationale of no-money-damages cases. To some extent, I agree 

with DMWW that some of the reasoning employed in our no-moneydamages caselaw is flawed. As indicated above, I do not accept the nolegal-entity line of reasoning or the characterization of nonliability as 

based on immunity. What I do think is at play in our cases, however, is 

the notion that drainage districts have limited statutory powers and that 

these powers do not include the ability to pay money damages. 

Certainly, as the drainage district defendants point out, DMWW has been 

unable to point to any statutory provision in the more than six hundred 

sections of Iowa Code chapter 468 that expressly authorizes payment of 

money damages.

We have long held, even in the pre-home rule days, that local 

government authority includes not only what is expressed but also what 

is necessarily implied. See, e.g., Woodbury County v. Anderson, 164 

N.W.2d 129, 134 (Iowa 1969); In re Estate of Frentress, 249 Iowa 783, 

786, 89 N.W.2d 367, 368 (1958). There is, perhaps, an argument that 

the power to pay for money damages should be necessarily implied from 

chapter 468, but I do not find such an implication compelling. At the 

time chapter 468 was enacted, sovereign immunity was the rule and not 

the exception. I doubt that the legislature intended when it granted the 

drainage districts limited express powers to imply a power that under 

prevailing law was not generally available absent legislative consent. I 

thus conclude that the argument that drainage districts have an implied 

power to pay money damages does not have much merit.
67

3. Broad case holdings and stare decisis. The next question I 

consider is whether the cases that might be entitled to stare decisis cover 

the present controversy. DMWW is correct that cases like Fisher, Gard,

and Chicago Central do not involve pollution matters. And, in particular, 

they do not arise in the context of claimed violation of duties arising out 

of other statutes such as statutory nuisance. Iowa Code § 657.2(4). Yet, 

the language of the cases is quite broad—“Iowa has never allowed tort 

claims for money damages to be made against a drainage districts”! 

Gard, 521 N.W.2d at 698.

The question is whether prior broad statements of law are entitled 

to stare decisis even when the facts of a subsequent case are arguably 

distinguishable. See, e.g., Indep. Inst. v. FEC, 816 F.3d 113, 117 (D.C. 

Cir. 2016) (“The nature of our system of legal precedent is that later 

cases often distinguish prior cases based on sometimes slight 

differences.”); Richard M. Re, Narrowing Supreme Court Precedent from 

Below, 104 Geo. L.J. 921, 924–25 (2016) (describing how lower federal 

courts will often “narrow from below” outdated or ambiguous Supreme 

Court precedents); Richard M. Re, Narrowing Precedent in the Supreme 

Court, 114 Colum. L. Rev. 1861, 1875–89 (2014) (arguing that healthy 

stare decisis can require methods of narrowing broadly stated precedent 

in order to avoid overruling a case when its “best reading,” i.e. the 

precedent as actually stated, would require an outcome inconsistent with 

other legal principles). Of course, the next case is always different, in 

some way, from prior cases. But at the same time, context matters. The 

question is whether a broad legal expression is binding in the contexts 

other than that in which it has arisen? Here, unlike in Fisher, Gard, and 

Chicago Central, a statute outside of Iowa Code chapter 468 imposes a 
68

duty not to create or continue a nuisance—no similar statutory duties 

were present in the cases disallowing money damages. 

I do not have a very clear answer for this interesting question. 

There is considerable appeal to the argument that broad statements of 

law are binding only in the factual setting from which they arise and are 

really only dicta with respect to other claims. The law constantly evolves 

by distinguishing past precedent based on factual differences. As is 

apparent from this opinion, I regard many of the issues posed in this 

case as abundantly nuanced and contextual. Certainly we can all agree 

that we have never considered the potential liability of drainage districts 

in the context of a claim that the operation causes violation of federal 

pollution law.

We should be particularly alert to avoid masking preferred policy 

choices in a stare decisis costume. And, an overburdened court may be 

tempted to over read precedent in the name of efficiency and quick 

results, but such an approach runs the risk of uncritical dispositions.

Yet, notions of nuance and context could be extended so far that 

there would almost never be an occasion to apply stare decisis and 

literally nothing would ever be settled in the law. In close cases, the 

determination of whether to apply stare decisis is a matter of judgment, 

not inexorable command.

It seems to me that one relevant line of inquiry is whether a 

reasonable drainage district would rely on the statements in our caselaw 

as binding in the structuring of its financial and business affairs. In our 

cases, particularly Gard and Chicago Central, the statements about 

money damages are emphatic and were made in contexts where the 

plaintiffs’ claims had considerable equitable appeal. Yet, in Iowa 

Employment Security, the drainage district was required to pay money—
69

not damages in tort, perhaps, but money nonetheless—to a government 

agency based on statutory requirements outside of Iowa Code chapter 

468. See 260 Iowa at 346–47, 149 N.W.2d at 291. And, in Polk County, 

we recognized that environmental regulations would be enforced in the 

face of a claim that drainage districts had exclusive jurisdiction for 

matters within the scope of its authority. See 377 N.W.2d at 241. Yet, 

the issue here is not regulatory enforcement, as in Polk County, or 

payment of money to government entity, as required in Iowa Employment 

Security, but a question of money damages for an alleged civil wrong.

Although a close question, I am inclined to go along with the 

application of stare decisis on the question of the availability of money 

damages in this case. The most valid rationale for the no-moneydamages approach—that a drainage district has limited powers—is a 

broad proposition that applies across the board.16 Further, it seems to 

me that a reasonable drainage district might forgo the possibility of 

insurance in light our caselaw. See, e.g., State v. Peeler, 140 A.3d 811, 

857 (Conn. 2016) (Zarella, J., dissenting) (noting, among other costs to 

individuals of overturning precedent, the impact on risk-shifting 

arrangements like insurance policies); Crist v. Hunan Palace, Inc., 89 

P.3d 573, 580 (Kan. 2004) (declining to overrule precedent in part 

because insureds and insurance companies had relied on the precedent 

in purchasing and crafting insurance policies); Paige v. City of Sterling 

Heights, 720 N.W.2d 219, 228–29 (Mich. 2006) (overruling a prior 

16Admittedly, though, this notion is clouded by Iowa Employment Security, 

where the drainage district was required to pay funds to the state to support retirement 

even though there was no express statutory authority to do so. See 260 Iowa at 346–

47, 149 N.W.2d at 291. The power to pay for statutorily required retirement benefits 

could only have been an implied power. I have, however, rejected the notion of an 

implied power to pay money damages for torts.

 
70

decision because, in part, the precedent did not cause large numbers of 

people to attempt to conform their conduct to the decision by, for 

example, deciding whether to purchase insurance or not). Further, 

where the result of precedent is defensible and the legislature has had a 

relatively recent reminder in Chicago Central four years ago, we should 

be cautious to reexamine precedent. See Doe v. New London Cmty. Sch. 

Dist., 848 N.W.2d 347, 355 (Iowa 2014); Ackelson v. Manley Toy Direct, 

L.L.C., 832 N.W.2d 678, 688 (Iowa 2013). So, although I am not 

completely confident in the result, I am inclined to conclude that stare 

decisis precludes our reconsideration of our caselaw that generally 

stands for the proposition that money damages are not an available 

remedy against drainage districts.

4. Impact of county home rule amendment. DMWW argues that our 

prior precedent is based on perceived limitations in the statutory 

authority of drainage districts. DMWW asserts that this rationale is no 

longer applicable in light of the enactment of the county home rule 

amendment to the Iowa Constitution. Under the county home rule 

amendment, counties are no longer subject to the Dillon rule, which 

stated that local governments only have those powers expressly granted 

or necessarily applied or necessarily implied. See Iowa Const. art. III, 

§ 39A; cf. City of Des Moines v. Master Builders of Iowa, 498 N.W.2d 702, 

703 (Iowa 1993) (en banc) (considering the home rule amendment as 

applied to city government). DMWW argues that drainage districts, as 

subdivisions of the county, now have larger powers, including the power 

to pay money damages for environmental pollution. DMWW correctly 

asserts that our post-county home rule cases, Fisher, Gard, and Chicago 

Central, do not address the question of whether home rule impacts the 

no-money-damages rule.
71

The majority indicates that even if they have the benefit of home 

rule, the drainage districts do not have the power to tax beyond that 

authorized by the general assembly. That is, of course, an accurate 

proposition. Yet, the Iowa Constitution expressly vests authority in 

drainage districts to impose special assessments. Iowa Const. art. I, 

§ 18. Further, we have held that special assessments do not necessarily 

amount to a tax. Bennett v. Greenwalt, 226 Iowa 1113, 1134, 286 N.W. 

722, 732 (1939). Thus, the relevant question is whether a drainage 

district may use its expressly authorized special assessment power to 

pay money damages arising from pollution. I am not sure of the answer 

to this question if home rule applies to drainage districts.

But, I doubt that county home rule applies to drainage districts. 

The county home rule amendment applies only to “counties” or “joint 

county-municipal corporations.” A county, however, has not been 

named as a defendant in this litigation. Although constitutional 

language is often open textured and our interpretation must show fidelity 

to the underlying constitutional values animating the language, a 

drainage district is not the same as a county, but instead is a 

governmental subdivision of the county in which they are located. Iowa

Employment Security, 260 Iowa at 346, 149 N.W.2d at 291. The question 

is thus whether the unquestionably broad home rule of a county is 

vicariously passed on to a subdivision of the county.

It is my conclusion that drainage districts do not come within the 

scope of the county home rule amendment. The county home rule 

amendment was directed to county and county-municipal corporations 

that exercise general police powers and not to tightly regulated, limited 

purpose entities like a drainage district whose governing structure, to 

some extent, merely overlaps with county government. See Fountain City 
72

Sanitary Dist. v. Knox Cty. Election Comm’n, 308 S.W.2d 482, 486 (Tenn. 

1957) (Swepston, J., concurring) (explaining that drainage districts, as 

quasi-municipal corporations, were not intended to be included within 

the ambit of the home rule amendment); Union High Sch. Dist. No. 1 v. 

Taxpayers of Union High Sch. Dist. No. 1, 172 P.2d 591, 596 (Wash. 1946) 

(holding that a municipal corporation, in this case a high school district, 

was not granted powers of home rule unless the statutory language 

creating the municipal corporation clearly showed the legislature’s intent 

to grant home rule powers); see also Philip A. Trautman, Legislative 

Control of Municipal Corporations in Washington, 38 Wash. L. Rev. 743, 

745 (1963).

C. State Constitutional Challenges to “Immunity” for Money 

Damages Based on Due Process, Equal Protection, and Inalienable 

Rights. Assuming as a matter of law that money damages are not 

available, DMWW raises due process, equal protection, and inalienable 

rights arguments under the Iowa Constitution challenging this state of 

affairs. DMWW asserts that the judicially created doctrine of immunity 

from money damages simply has to be abandoned. DMWW claims that 

Iowa constitutional infirmities arise from such an irrational and arbitrary 

state of affairs when most governmental entities are liable for such 

money damages but drainage districts are not.

DMWW argues by analogy based on our decisions in cases 

including Miller v. Boone County Hospital, 394 N.W.2d 776 (Iowa 1986), 

Gacke, 684 N.W.2d at 168, and Hensler v. City of Davenport, 790 N.W.2d 

569 (Iowa 2010). In Miller, we struck down a statute imposing more 

stringent procedural requirements on tort claims against local 

governments on equal protection grounds. 394 N.W.2d at 781. In 

Gacke, we held that an immunity provision in Iowa Code section 
73

657.11(2) exempting certain livestock operators from nuisance claims 

amounted to a per se taking under the Iowa Constitution. 684 N.W.2d at 

174–75. In Hensler, we developed a two-step process for determining 

whether a particular state action violates substantive due process, 

including a determination of whether a right is fundamental which, 

DMWW asserts, certainly includes its right to compensation for 

environmental harms. See 790 N.W.2d at 580–81. DMWW maintains 

that if, in fact, drainage districts are immune from nuisance damages, 

such immunity is constitutionally infirm under the equal protection, due 

process, and inalienable rights clauses of the Iowa Constitution as 

applied in Miller, Gacke, and Hensler.

If the plaintiff in this case was a citizen as in Miller, Gacke, and 

Hensler, DMWW’s argument would need to be confronted. But this case 

involves a government subdivision suing another government subdivision 

for alleged damages from environmental harm. While our cases on 

drainage districts use the term “immunity,” which inevitably gives rise to 

the comparison with Gacke, the comparison is flawed. While the cases 

are sometimes couched in immunity language, the use of the term 

“immunity” is inaccurate. The real issue, to me, is a limitation of the 

power of drainage districts compared to other entities.

Where the crux of the constitutional issue is the constitutional 

validity of a limitation on the power of a government subdivision, our 

caselaw suggests that another government subdivision does not have the 

power to bring these claims. See Bd. of Supervisors v. Dep’t of Revenue,

263 N.W.2d 227, 232 (Iowa 1978). If a government subdivision cannot 

complain of any act of the legislature diminishing its revenue, amending 

its charter, or even dissolving it, it may be argued that DMWW as a 

legislative creature cannot attack the limitations of power of another 
74

legislative creature, the drainage district, absent a clear constitutional 

command to the contrary. See McSurely v. McGrew, 140 Iowa 163, 170, 

118 N.W. 415, 418–19 (Iowa 1908).

On this very narrow point, I concur with the result of the majority 

with respect to the equal protection, due process, and inalienable rights 

claims attacking the lack of authority of the drainage district defendants 

to pay money damages for common law or statutory torts. I do not, 

however, opine more generally on standing issues involving government 

subdivisions as plaintiffs. In particular, as will be explained below, I 

conclude that DMWW may raise a takings claim under article I, section 

18 of the Iowa Constitution against the drainage district defendants.

D. Equitable Relief to Abate Nuisance.

1. Introduction. The question of whether equitable remedies are 

available to abate an alleged nuisance caused by drainage districts raises 

a fundamentally different question than the money damages controversy. 

In order to address this different question, I first consider whether 

injunctive relief is available against drainage districts generally. I then 

turn to the question of whether nuisance provides a substantive legal 

basis for an injunction in a pollution context generally. Next, I consider 

whether an injunction to abate a nuisance arising from alleged pollution 

may be entered against drainage districts. Finally, I consider the merits 

of DMWW’s contention that it is entitled to seek injunctive relief if it can 

prove its nuisance case under the facts presented to us by the certifying 

federal court in this case.

2. Availability of injunctive relief against drainage districts 

generally. The question here is whether injunctive relief is part of a 

judicial tool kit that might be available to the district court in the event 

that DMWW demonstrates an entitlement to relief. The mere fact that 
75

money damages are not available, even if based on immunity, does not 

prevent the availability of equitable relief. While our cases repeatedly 

assert that money damages are not available, our cases clearly state that 

equitable relief is available against drainage districts. For example, we 

have said the equitable remedy of mandamus is available to order 

members of the board of supervisors to ensure that the drainage district 

meets a mandatory legal duty. Wise, 242 Iowa at 874, 48 N.W.2d at 249. 

We have said that injunctive relief is available to order a drainage district 

to repay money assessed pursuant to a void repair contract. Voogd, 188 

N.W.2d at 393.

I am not sure the fine distinction between mandamus and 

injunction matters much. We have said that mandamus would lie to 

compel a city to abate a continuing public nuisance where it was under a 

duty to abate the nuisance. Cowin v. City of Waterloo, 237 Iowa 202, 

212–13, 21 N.W.2d 705, 710 (1946). In Wise, mandamus was issued 

when there was a clear duty, yet no detailed instructions regarding how 

the district could meet that duty. 242 Iowa at 874, 48 N.W.2d at 249. 

Whether or not DMWW can make the case for a Wise-type remedy is of 

course not clear at this early point in the litigation.

And, it seems to me that injunctive relief in a proper case should 

be available, too. The value of injunctive relief is that it allows the 

district court to shape the remedy to meet the contours of the problem. 

See Brown v. Voss, 715 P.2d 514, 517 (Wash. 1986) (en banc) (noting 

that a district court has broad discretionary power to shape injunctive 

relief to the particular facts, circumstances, and equities of the case); 

accord N. Star State Bank of Roseville v. N. Star Bank Minn., 361 N.W.2d 

889, 895 (Minn. Ct. App. 1985); Reprod. Health Servs., Inc. v. Lee, 660 

S.W.2d 330, 335 (Mo. Ct. App. 1983); Rhett v. Gray, 736 S.E.2d 873, 882 
76

(S.C. Ct. App. 2012). In modern law, injunctions are available to meet a 

wide variety of problems. See Stephens v. Borgman, 210 P.2d 176, 183 

(Okla. 1949) (Davison, C.J., dissenting) (asserting that, while injunctive 

relief was originally used sparingly by courts of equity, the modern 

tendency is to grant injunctions when a clear showing is made of a 

continuing or likely to be repeated wrong); Pearce v. Pearce, 226 P.2d 

895, 897 (Wash. 1951) (“We recognize and approve the modern tendency 

to protect personal rights by injunctive relief where there is no adequate 

remedy at law.”). I do not see a reason why the remedy should not be 

available if DMWW makes the appropriate legal and factual showing 

supporting its claim.

The drainage districts suggest that because the development of 

drainage infrastructure is authorized by law, it cannot be a nuisance. 

The law is otherwise. McQuillan instructs us, for instance, that a 

municipality cannot escape liability because a construction was 

authorized by statute. 18 Eugene McQuillan, The Law of Municipal 

Corporations § 53:77.24, at 624–25 (3d ed. 2013) [hereinafter McQuillan]. 

There is ample authority for this proposition. We said as much in 

Kriener, 212 N.W.2d at 530, 535 (canvassing Iowa law and holding the 

existence of nuisance not affected by lawfulness of an offending 

establishment). There is also ample authority from other jurisdictions. 

See, e.g., Friends of H St. v. City of Sacramento, 24 Cal. Rptr. 2d 607, 611 

(Ct. App. 1993); Delta Air Corp. v. Kersey, 20 S.E.2d 245, 250 (Ga. 1942); 

Webb v. Town of Rye, 230 A.2d 223, 226 (N.H. 1967). Ordinarily, a 

municipality is liable for maintaining or contributing to a nuisance to the 

same extent as an individual. Miller v. Town of Ankeny, 253 Iowa 1055, 

1061, 114 N.W.2d 910, 914 (1962) (upholding instruction that would 

allow town to be held liable for improper construction and operation of a 
77

sewage treatment plant resulting in a nuisance); McQuillan § 53:77.24, 

at 627–28 & n.11.

3. Nuisance as basis for equitable relief to abate pollution generally. 

I now examine the underlying substantive basis of DMWW’s claim for the 

remedy of an injunction. DMWW claims that Iowa nuisance law provides 

a basis for equitable relief.

We recently canvassed the application of nuisance law to 

environmental matters in Freeman, 848 N.W.2d at 66–69. As we noted 

in Freeman, common law nuisance theory has provided a remedy for 

environmental wrongs reaching back into the seventeenth century. Id. at 

66. We noted in Freeman the availability of nuisance to address 

environmental harms was endorsed by the Restatement (Second) of 

Torts, which included sections on both public and private nuisance. Id.; 

see Restatement (Second) of Torts §§ 821B–821E, at 87–104 (1979). We 

quoted a leading commentator who noted that nuisance “continues to be 

the fulcrum of what is called today environmental law.” Freeman, 848 

N.W.2d at 66–67 (quoting 1 William H. Rodgers, Jr., Environmental Law: 

Air and Water § 2.1, at 29 (1986)). We noted in Freeman that nuisance 

theory had been recognized in Iowa for decades in the environmental 

contexts. Id. at 67; see also Kriener, 212 N.W.2d at 536 (finding noxious 

odor from sewage facility amounted to a private nuisance); Ryan v. City of 

Emmetsburg, 232 Iowa 600, 603, 4 N.W.2d 435, 438 (1942) (concerning a 

private nuisance arising from sewer system).

We further recognized in Freeman that the Iowa legislature 

explicitly endorsed nuisance theory by enacting a statutory nuisance 

action in Iowa Code § 657.1. 848 N.W.2d at 67. We have consistently 

held that the statutory nuisance provisions do not preempt common law 

nuisance claims but supplement them. Id.
78

In Freeman, we recognized the modern trend to control the 

environment through the enactment of regulatory statutory regimes. Id. 

at 68–69. We pointed out in Freeman, however, that the purpose of 

regulatory statutory environmental regimes was to protect the public 

generally and not to provide a remedy for special harms to property at a 

specific location. Id. at 69. As a result, we held that applicable 

provisions of the Clean Air Act did not preempt state common law 

nuisance claims. Id. at 84–85.

Freeman involved a case of air pollution, not water pollution. But, 

under a Freeman-type analysis, nuisance theory provides a potential 

basis for an injunction in cases involving water pollution that has not 

been preempted by state or federal statutes dealing with water pollution.

4. Appropriateness of nuisance remedy against drainage districts. 

From a policy perspective, the process of adjudication of nuisance 

claims—with the rules of evidence, the orderly development of a record, 

thorough consideration by a fair and impartial trial judge, and the 

possibility of appeal to a dispassionate appellate court—has many 

attractive qualities. Plaintiffs bear the burden of proving causation, and 

the degree of harm is based in fact, not supposition. Remedies are 

specifically sculpted to meet the factual showing of the plaintiffs.

The case-by-case nuisance approach is consistent with what is 

known in environmental law as the PPP, or the “polluter pays principle.” 

The PPP principle is recognized as a norm in international environmental 

law and, according to one commentator, should apply when agricultural 

activities impose environmental harm that affects private and public 

property. See Margaret Rosso Grossman, Agriculture and the Polluter 

Pays Principle: An Introduction, 59 Okla. L. Rev. 1, 3 (2006); Boris N. 

Mamlyuk, Analyzing the Polluter Pays Principle Through Law and 
79

Economics, 18 Se. Envtl. L.J. 39, 42 (2009); Ved P. Nanda, Agriculture 

and the Polluter Pays Principle, 54 Am. J. Comp. L. 317, 319–20 (2006).

The majority suggests that solutions to water quality are better 

advanced by the “elected branches of government who are responsible to 

the people.” The majority ignores the fact that the legislature has 

enacted a nuisance statute that DMWW seeks to enforce. See Iowa Code 

ch. 657. The Iowa legislature, unlike the majority, has thus generally 

endorsed nuisance as a means of environmental protection. It has 

provided a specific statutory mechanism for abatement of nuisances and 

payment of expenses associated with abatement. See Iowa Code § 657.7. 

The legislature added an exclamation point by making the creation or 

continuing of a nuisance a criminal offense. See id. § 657.3.

And, tellingly, the legislature crafted a narrow exception to Iowa 

Code chapter 657 for certain animal feeding operations.17 Id.

§ 657.11(2). That is the only exception in chapter 657. The legislature 

thus contemplated who might be exempt from nuisance requirements 

generally. It did not exempt drainage districts. See Reyes-Fuentes v. 

Shannon Produce Farm, Inc., 671 F. Supp. 2d 1365, 1369 (S.D. Ga. 2009) 

(finding that the expression of one exception in a statute implies the 

exclusion of other exceptions); accord Pugliese v. Pukka Dev., Inc., 550 

F.3d 1299, 1304 (11th Cir. 2008); Winkle v. State, 841 S.W.2d 589, 591 

(Ark. 1992); In re Cadwell’s Estate, 186 P. 499, 501 (Wyo. 1920).

5. Relevant drainage district caselaw regarding nuisance claims. 

DMWW seeks relief in this case under both common law and statutory 

nuisance theories. As indicated above, there is nothing in our caselaw 

suggesting that equitable remedies are not available to abate pollution 

17This provision was declared unconstitutional in Gacke, 684 N.W.2d at 179.

 
80

allegedly caused by drainage districts. In Vogt, we allowed a damages 

remedy in a case brought against a city for discharging sewage into the 

stream to the material injury of lower riparian owners. 133 Iowa at 363, 

110 N.W. at 603–04. Nothing in the case indicated equitable relief was 

not available for this type of harm. While we denied an injunction 

against a drainage district in Maben, we took great pains to distinguish 

overflow from environmental nuisances. 187 Iowa at 1068, 175 N.W. at 

515–16. Finally, we granted an injunction against a drainage district in 

Voogd to prohibit the collection of additional installment payments. 188 

N.W.2d at 395.

Further, we have held in several cases that equitable remedies are 

available against the management of a drainage district to force 

compliance with the law. To me, in addition to cases like Iowa 

Employment Security, these cases are the death knell of the no-legalentity approach in other cases, an obvious proposition not recognized by 

the majority. And, if mandamus is available in an appropriate case, as 

our cases clearly establish, why would injunctive relief not be available in 

an appropriate case, as it was in Voogd?

Thus, unlike on the question of money damages, our cases do not 

uniformly and clearly hold that injunctive relief is not available in the 

context of a pollution case. Indeed, if anything, they suggest that an 

injunction might be available in proper circumstances. Our cases are 

plainly not entitled to stare decisis on the question of availability of an 

injunction to abate a nuisance because there has been no clear and 

definitive ruling on the issue as framed in this case. I now turn to the 

live-wire substantive question—whether an injunction is precluded as a 

matter of law in this case at this early stage of the litigation.
81

6. Availability of injunction to abate nuisance in this case. 

Assuming injunctive relief is available in appropriate cases, as I do, the 

next question is whether a nuisance action is available to the plaintiffs to 

abate environmental harms. As we noted in Freeman, the Iowa 

legislature has enacted a provision establishing a statutory nuisance 

claim that supplements and does not supplant common law nuisance. 

848 N.W.2d at 67. Further, in Freeman, it is noteworthy that a 

comprehensive federal regulatory framework did not preempt state 

nuisance regulation. Id. at 69–70. Nuisance law is a sturdy feature of 

the Iowa legal landscape.

The defendants argue that Iowa Code section 468.2(1) precludes 

such a nuisance action. That provision provides, “The drainage of 

surface waters from agricultural lands and all other lands, including 

state-owned lakes and wetlands, or the protection of such lands from 

overflow shall be presumed to be a public benefit and conducive to the 

public health, convenience, and welfare.” Iowa Code § 468.2(1).

In my view, the statute does not categorically eliminate nuisance 

claims. It only establishes a presumption that the activities of a drainage 

district are in the public interest, but that presumption may be rebutted. 

Our rule of thumb is that a statutory presumption is rebuttable, not 

conclusive, unless the legislature has clearly expressed an intent to the 

contrary by saying it is conclusive. Larsen v. Bd. of Trs., 401 N.W.2d 

860, 863 (Iowa 1987) (Wolle, J., dissenting); Neighbors v. Iowa Elec. Light 

& Power Co., 175 N.W.2d 97, 102 (Iowa 1970). The majority is wrong to 

think otherwise.

My view is supported by an examination of other provisions of Iowa 

Code chapter 468 where the legislature, unlike in section 468.2(1), did 

use language establishing conclusive or irrebutable presumptions. 
82

Specifically, Iowa Code section 468.47 is entitled “Evidence—conclusive

presumptions” and provides that no evidence is “competent to show that 

any of the lands in [a drainage] district . . . will not be benefited by [an] 

improvement in some degree.” A similar provision, with an escape 

clause, may be found in Iowa Code section 468.92, entitled “Conclusive 

presumption on appeal.” Similarly, Iowa Code section 468.171 is entitled 

“Conclusive presumption of legality.” This section states a final order of 

a drainage district “shall be conclusive that all prior proceedings were 

regular and according to law.”

Plainly, the legislature knows how to establish conclusive 

presumptions. It repeatedly did so in three sections of chapter 468, two 

involving a question of fact, another involving a question of law. It did 

not do so in section 468.2(1). To judicially carrot in the term 

“conclusive” in section 468.2(1) would be to rewrite the statute. We 

should decline that invitation. See In re A.M., 856 N.W.2d 365, 378 (Iowa 

2014) (“We are not free to rewrite a statute in the guise of 

interpretation.”).

Yet, as with the issue of money damages, the question remains 

whether a drainage district would have the statutory authority to comply 

with a mandamus or injunction to abate a nuisance. The statutory 

powers of a drainage district include the power to engage in repairs and 

improvements in a drainage district. Iowa Code § 468.126. The Code 

further provides that the powers of a drainage district are to be liberally 

construed. Id. § 468.2; see also Clary, 135 Iowa at 495, 113 N.W. at 

333. Yet, the question remains whether a drainage district may take 

affirmative steps to abate a nuisance under the maintain-and-repair 

provisions of the statute.
83

Iowa Code chapter 468 has statutory provisions related to repairs 

and improvements. Under the repair provision of Iowa Code section 

468.126(1)(a), the board of supervisors is authorized to

restore or maintain a drainage or levee improvement in its 

original efficiency or capacity, and for that purpose may 

remove silt and debris, repair any damaged structures, 

remove weeds and other vegetable growth, and whatever else 

may be needed to restore or maintain such efficiency or 

capacity or to prolong its useful life.

Under the improvement provision of Iowa Code section 468.126(4)(a), the 

board of supervisors is authorized to engage in improvements. An 

“improvement” is defined as a project “to expand, enlarge, or otherwise 

increase the capacity of any existing ditch, drain, or other facility above 

that for which it was designed.” Iowa Code § 468.126(4).

The question becomes whether under these repair-andimprovement provisions a drainage district would have authority to 

implement whatever abatement measures that might be required to 

remove nitrates from the water which it allegedly collects and deposits in 

the Raccoon River. An argument may be made that the power to abate a 

nuisance due to nitrate pollution does not fall into the express terms of 

these statutes. Any would-be abatement effort does not seem to be a 

repair in the sense of an action to “restore or maintain a[n] . . . 

improvement in its original efficiency or capacity.” Id. § 468.126(1)(a). 

And, it can be argued that abating a nuisance is not an improvement 

because it fails to “expand, enlarge, or otherwise increase the capacity of 

any existing ditch, drain, or other facility.” Id. § 468.126(4).

But if the power to abate a nuisance is not expressly stated, is it 

necessarily implied? See In re Estate of Frentress, 249 Iowa at 786, 89 

N.W.2d at 368. Iowa Code chapter 657, which has been around in one 

form or another for a long time, states that it is a nuisance to pollute 
84

rivers and streams. Iowa Code § 657.2(4). It is a crime to create or 

continue a nuisance. Id. § 657.3. There is no pollution exception in the 

law for drainage districts. Does the power to create, repair, and maintain 

a drainage district necessarily imply the duty to comply with generally 

applicable nuisance statute that includes criminal penalties for 

noncompliance and for which drainage districts are not exempted?

I conclude that it does. In particular, it seems to me that the 

Maben case takes great pains to distinguish overflow cases, for which no 

remedy is available against drainage districts, from pollution cases. See

187 Iowa at 1068–70, 175 N.W. at 515–16. If there was no potential 

exposure of drainage districts for pollution-type claims, it would not have 

been necessary to draw the distinction. While it would be claiming too 

much to suggest that the mere fact that the Maben case distinguished 

pollution cases is determinative on the issue before us, it does give us at 

least some insight into contemporary thinking closer to the time of the 

creation of drainage districts.

Further, it seems to me necessarily implied that if the drainage 

district has the power to build a drainage system, it necessarily has the 

power to build it in compliance with generally applicable law affecting 

public health. There are no germane exemptions from external statutory 

requirements in the extensive drainage district statute. Of course, the 

Maben reasoning is correct in that there simply cannot be an overflow 

claim because the removal of water from an area of land and introducing 

that water into rivers is precisely what drainage districts do. Id. at 1063–

64, 175 N.W. at 513–14. Allowing an overflow action would thus devour 

the entire statute. But the fact that an overflow claim cannot be made 

has no bearing at all upon the pollution claim presented in this case. 

Further, the holdings in Iowa Employment Security and Polk County
85

demonstrate that drainage districts have duties outside the scope of Iowa 

Code chapter 468. See Polk County, 377 N.W.2d at 241; Iowa Emp’t Sec., 

260 Iowa at 347, 149 N.W.2d at 291.

I conclude only at this juncture that an injunctive claim based 

upon nuisance law is not precluded as a matter of law at this early stage 

of the litigation. See City of Springfield v. N. Fork Drainage Dist., 249 

Ill. App. 133, 152 (1928) (permitting a city to sue drainage district for 

pollution); Township of Hatfield v. Lansdale Mun. Auth., 168 A.2d 333, 

334 (Pa. 1961) (affirming municipality’s requested injunction against 

water authority). The DMWW raises claims not with respect to the 

legislature’s distribution of power, but claims related to the improper 

exercise of power that the legislature had conferred.

This does not mean, of course, that a court should accept the facts 

are as alleged by DMWW. Under my approach, DMWW would carry the 

burden of proving its factual allegations. Further, even if the facts are 

proved, I do not believe that DMWW would necessarily be entitled to an 

injunction. In my view, the drainage district defendants should be 

allowed to assert affirmative defenses about which we have no occasion 

to now opine. An injunction is an equitable remedy. Any court 

considering whether to grant an injunction in a nuisance case must 

balance the equities by determining, among other things, the scope of the 

problem and the benefits and burdens of any proposed abatement. See

Ronald J. Rychlak, Common-Law Remedies for Environmental Wrongs: 

The Role of Private Nuisance, 59 Miss. L.J. 657, 689–93 (1989).

The majority suggests, without any instructions from the certifying 

court or factual basis in the nonexistent record, that the most efficient 

cost avoider may be the DMWW and not the drainage district. For busy 

courts seeking to maximize efficiency, and particularly federal courts, 
86

there is a temptation to terminate litigation prematurely based on the 

perceived factual merits of the underlying controversy. Although the 

question of most efficient cost avoider may be a factor when the court 

considers whether equitable relief is appropriate at the end of the 

litigation, such speculation cannot be used to slam the courthouse doors 

on DMWW at the beginning of the litigation. And, it may also be that 

certain actions that might effectively abate the nuisance are not, in fact, 

within the power of the drainage district. That possibility, however, goes 

to the merits of this case and cannot be used, as a matter of law, to 

terminate this proceeding.

For the above reasons, I conclude that DMWW should be allowed 

to attempt to make its case on its injunctive claim against the drainage 

district defendants when the plaintiff seeks compliance with common 

and statutory environmental regulations.

V. Takings Claim Arising from Alleged Pollution of Raccoon 

River.

A. Introduction. I now turn to the question of whether DMWW 

may bring a takings claim against the drainage district defendants 

arising out of DMWW’s assertion that because of pollution their right to 

clean water has been impaired and that the invasion of the nitrates into 

the DMWW property amounts to a trespass.

First, I consider whether DMWW, as a governmental subdivision, 

has any property which may fall within the scope of property protected 

from uncompensated takings. Second, I consider whether one 

governmental subdivision may bring a takings claim against another 

governmental subdivision. Third, I consider whether DMWW, by alleging 

that the drainage districts have polluted the Raccoon River, has alleged a 

taking of a compensable property interest. Fourth, I consider whether 
87

the legislative authorization to build drainage districts defeats the 

takings claim in this case.

B. Takings Claim of Government Bodies: The Question of 

Private Property.

1. Overview. There is a relatively small body of literature and a 

large body of caselaw relating to the question of whether a governmental 

subdivision may bring a takings claim which is limited to “private 

property.” See Iowa Const. art. I, § 18 (“Private property shall not be 

taken for public use without just compensation first being made . . . .”). 

The prevailing view is that municipal governments may bring takings 

claims when other governmental entities seize property, at least under 

certain circumstances.

2. United States Supreme Court caselaw on government as holder of 

private property: A stranger in town. The United States Supreme Court 

has considered the question of whether a government entity may be 

entitled to a takings claim when the United States seizes its property. 

The central question, of course, was whether government-owned property 

could be considered “private property” for purposes of the Fifth 

Amendment.

The Supreme Court’s key case is United State v. 50 Acres of Land, 

469 U.S. 24, 105 S. Ct. 451, 83 L. Ed. 2d 376 (1984). In 50 Acres, the 

Supreme Court concluded that property held by local government could 

be considered private property for takings purposes under the Fifth 

Amendment. Id. at 31, 105 S. Ct. at 455–56, 83 L. Ed. 2d at 383. The 

thrust of the rationale was that the loss to the government entity may be 

as severe as the loss to a private person or entity. Id. at 31, 105 S. Ct. at 

455, 83 L. Ed. 2d at 383. According to the 50 Acres Court,
88

When the United States condemns a local public 

facility, the loss to the public entity, to the persons served by 

it, and to the local taxpayers may be no less acute than the 

loss in the taking of private property. Therefore, it is most 

reasonable to construe the reference to “private property” in 

the Takings Clause of the Fifth Amendment as encompassing 

the property of state and local governments when 

condemned by the United States.

Id. at 31, 105 S. Ct. at 455–56, 83 L. Ed. 2d at 383.

The case turned on two features. First, as indicated above, the 

term “private property” was not narrowly construed but instead was 

subject to a functional approach based on the impact of the deprivation 

on local government. Second, however, one commentator has referred to 

the case’s “stranger in town” aspect—namely, the fact that 50 Acres

involved a takings claim by a municipality against a different sovereign. 

See John M. Payne, Intergovernmental Condemnation as a Problem in 

Public Finance, 61 Tex. L. Rev. 949, 954 & n.17 (1983); see also United 

States v. Carmack, 329 U.S. 230, 242, 67 S. Ct. 252, 257, 91 L. Ed. 209, 

217 (1946); Trenton, 262 U.S. at 188, 43 S. Ct. at 537, 67 L. Ed. at 941.

Undeniably, 50 Acres and its progeny involved local government 

takings claims against the federal government. Thus, the taking 

authority was thought to be a “stranger in town” in the sense that there 

was no direct legal relationship between the taker and the party suffering 

the loss.18 Yet, the case unmistakably stands for the proposition, not at 

all binding on state courts construing their state constitutions, that the 

property of a governmental subdivision might be considered “private 

property” for takings purposes.

18This assumption, of course, is questionable. Under the Supremacy Clause, 

the state and federal governments are interconnected because valid exercises of federal 

executive and legislative power are binding on the states. See U.S. Const. art. VI, cl. 2.

 
89

3. State law authority on government property as “private.” State 

courts have grappled with the question of whether government 

subdivision property should be considered “private” for takings purposes. 

Like 50 Acres, the state caselaw often reflects a functional approach to 

the question.

The general theory developed in the state caselaw is that when 

citizens of the state have a beneficial interest in the use of public 

property there was no taking, but when property was thought to be only 

locally beneficial, the taking was compensable. See Note, The Sovereign’s 

Duty to Compensate for the Appropriation of Public Property, 67 Colum. L. 

Rev. 1083, 1095–96 (1967) [hereinafter The Sovereign’s Duty]. This 

concept was often expressed as a distinction between “governmental” and 

“proprietary” purposes. Id. When a local government was deprived of 

proprietary property, the taking was compensable. Id. But when the 

property was considered governmental, there was no takings claim. Id.

The difference, as described by Judge Cooley of the Supreme Court 

of Michigan, is that with respect to

the property [a city] holds for its own private purposes, a city 

is to be regarded as a constituent in State government, and 

is entitled to the like protection of its property rights as any 

natural person who is also a constituent. 

People ex rel. Bd. of Detroit Park Comm’rs v. Common Council of Detroit, 28 

Mich. 228, 240 (1873). A large body of state caselaw developed dealing 

with the distinction between local government properties held in 

governmental capacities and local government properties held in 

proprietary capacities. See generally 1A Julius L. Sackman, Nichols on 

Eminent Domain § 2.27, at 2–158 (3d ed. 2009) [hereinafter Nichols] 

(citing cases); 2 Nichols § 5.06[8], at 5–336. The dichotomous approach 

often led courts to make difficult factual determinations and to the 
90

development in some jurisdictions of a potentially complex classification 

system, with some types of local government property declared “in” and 

some declared “out.” The Sovereign’s Duty, 67 Colum. L. Rev. at 1096–

97.

Certainly the governmental/proprietary approach has its critics. 

Justice Frankfurter once characterized the distinction as a “quagmire 

that has long plagued the law of municipal corporations.” Indian Towing 

Co. v. United States, 350 U.S. 61, 65, 76 S. Ct. 122, 124, 100 L. Ed. 48, 

53–54 (1955). Commentators have declared that the cases are “in 

disarray” and reflect a “mindless applications of labels.” Rudolph V. 

Parr, State Condemnation of Municipally-Owned Property: The 

Governmental-Proprietary Distinction, 11 Syracuse L. Rev. 27, 34 (1960); 

Hugh D. Spitzer, Realigning the Governmental/Proprietary Distinction in 

Municipal Law, 40 Seattle U. L. Rev. 173, 202–203 (2016).

The difficulties with the distinction have led some to call for a more 

functional interpretation of the term “private property” in cases involving 

municipalities. For instance, in City of Chester v. Commonwealth, the 

Pennsylvania court, citing federal authority, stated generally that the loss 

suffered by residents of a political subdivision is no less real that the loss 

suffered by private individuals as condemnees. 434 A.2d 695, 702 (Pa. 

1981). An Oregon appellate case cited the different tax bases of 

government entities involved in takings litigation, noting that “port 

districts are . . . distinct from the state. They are supported by a distinct 

tax base and they serve a distinct constituency.” Brusco Towboat Co. v. 

State By & Through Straub, 570 P.2d 996, 998 (Or. Ct. App. 1997) 

(en banc). Reformers generally call for broadening, rather than 

restricting, what constitutes private property, with a focus, like the 

Oregon case, on different tax bases and constituencies. The Sovereign’s 
91

Duty, 67 Colum. L. Rev. at 1119 (“The fact of particularized loss should 

be sufficient to give a right to compensation to a unit of government.”).

Most caselaw, however, continues to adhere to the 

governmental/proprietary distinction. In these jurisdictions, many have 

considered whether a waterworks or similar utility involves a 

governmental or proprietary function. The vast majority of cases indicate 

that a waterworks involve a proprietary function for takings clause 

purposes. See 2 Nichols § 5.06[8][b] n.56, at 5–340 (citing cases).

4. Iowa caselaw regarding takings of property held by 

municipalities. There are only a few Iowa cases touching on the question 

of whether a municipality has a takings claim under article I, section 18 

of the Iowa Constitution. In State ex rel. White v. Barker, we stated that 

municipal corporations are entitled to constitutional protections with 

“respect to private and proprietary rights and interests,” and that “[i]t is 

quite clear that the establishment and control of waterworks for the 

benefit of the inhabitants of the city” is not a public purpose but is for 

the city’s private benefit such that we would regard the waterworks as a 

private corporation. 116 Iowa 96, 106, 89 N.W. 204, 207 (1902). In 

State ex rel. Pritchard v. Grefe, we held that school property involved in a 

consolidation did not involve a takings claim. 139 Iowa 18, 30–31, 117 

N.W. 13, 18–19 (1908). In Miller Grocery Co. v. City of Des Moines, we 

stated that the waterworks involved the city acting in its proprietary 

capacity. 195 Iowa 1310, 1312–13, 192 N.W. 306, 307 (1923). In State 

ex rel. Board of Railroad Commissioners v. Stanolind Pipe Line Co., we 

generally endorsed the distinction between governmental and proprietary 

functions. 216 Iowa 436, 441, 249 N.W. 366, 369 (1933); see also MidAm. Pipeline Co. v. Iowa State Commerce Comm’n., 255 Iowa 1304, 1312, 

125 N.W.2d 801, 805 (1964) (“[P]ublic property is in some respects and 
92

under some conditions protected by the constitutional provisions 

prohibiting the taking of private property without just compensation.”).

5. Discussion. Although the Iowa law is sparse, I conclude that 

DMWW may bring takings claim against the drainage district in this 

case. The approach of Barker, Miller, Stanolind, and Mid-America Pipeline 

support this conclusion. As we have stated in a nongovernmental 

takings context, the purpose of just compensation is “designed to bar 

Government from forcing some people alone to bear public burdens 

which, in all fairness and justice, should be borne by the public as a 

whole.” Parkins v. Bd. of Supervisors, 636 N.W.2d 58, 69–70 (Iowa 2001) 

(quoting Armstrong v. United States, 364 U.S. 40, 49, 80 S. Ct. 1563, 

1569, 4 L. Ed. 2d 1554, 1561 (1960)). The same principle applies where 

intergovernmental takings involve a shifting of benefits and burdens to 

the disadvantage of a local government entity.

Further, even applying a more restrictive government/proprietary 

approach than is reflected in some of our older caselaw, the operation of 

a waterworks, consistent with the majority of cases in other jurisdictions, 

has been considered proprietary in nature. See, e.g., Phillips v. City of 

Bradenton, 187 So. 258, 259 (Fla. 1939); Hicks v. City of Monroe Utils. 

Comm’n, 112 So. 2d 635, 642 (La. 1959); State ex rel. Mt. Sinai Hosp. of 

Cleveland v. Hickey, 30 N.E.2d 802, 804 (Ohio 1940) (per curiam); 

Stewart v. City of Cheyenne, 154 P.2d 355, 358 (Wyo. 1944).

My approach is consistent with the Nichols treatise on the law of 

eminent domain. According to Nichols, the operation of a waterworks is 

a private activity, in which municipal corporations 

are mere aggregations of individuals living in the same 

neighborhood who have banded together to supply 

themselves with the necessities and conveniences of life . . . . 

In this character, they are clothed with the capacities of a 
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private corporation, and may claim its rights and immunities 

and are subject to its liabilities. 

1A Nichols § 2.27 at 2–159. Thus, “[t]he property acquired by municipal 

corporations for the private benefit of their inhabitants is protected by 

the constitution, and can be taken only by eminent domain, and upon 

payment of its value.” Id. § 2.27, at 2–163.

C. Takings Claim of Government Subdivisions Against Other 

Government Subdivisions: The Question of Standing. Closely related 

to the question of whether government property may be considered 

private for takings purposes is the question of whether government 

subdivisions may bring takings claims against other state government 

entities. Some cases stand for the broad proposition that a subdivision 

cannot bring takings claims against other government entities on the 

ground that the state itself created government subdivisions and that the 

state cannot sue itself. Other cases, however, consistent with the 

governmental/proprietary distinction discussed above, have held that 

local governments may bring takings claims to prevent unfair shifting of 

the benefits and burdens of government.

It would be wrong, however, to conclude, as the majority seems to, 

that public entities can never raise any constitutional questions in 

litigation with other state entities. There is certainly a narrow 

proposition that is comparatively well established, namely, that 

government subdivisions cannot challenge the constitutionality of 

statutes under which they operate or under which they were created. 

Dep’t of Revenue, 263 N.W.2d at 232.

This narrow proposition, to me, is defensible. A county cannot 

complain that the state prohibited it from engaging in certain activities 

because the state has the power to shape the configuration of its political 
94

subdivisions. I have applied this narrow rule with respect to claims that 

the legislative action allocating power to drainage districts but failing to 

include a money-damage remedy violated various provisions of the Iowa 

Constitution.

But these standing cases only advance a narrow proposition, 

namely, that government subdivisions cannot challenge the state’s 

limitations on their own authority. The cases do not stand for a broad, 

general proposition that government subdivisions can never raise 

constitutional claims. In my view, government subdivisions can raise 

takings claims against other governmental subdivisions.

It is true, perhaps, that older caselaw contains sweeping language 

about the lack of standing of government subdivisions to raise 

constitutional questions. Specifically, in Hunter v. City of Pittsburgh, the 

Supreme Court employed language, largely dicta, suggesting that 

government subdivisions may not raise constitutional issues in disputes 

against the state. 207 U.S. 161, 179, 28 S. Ct. 40, 46–47, 52 L. Ed. 151, 

159 (1907). But the language in Hunter was not unqualified. According 

to Hunter,

It will be observed that in describing the absolute 

power of the State over the property of municipal 

corporations, we have not extended it beyond the property 

held and used for governmental purposes. Such 

corporations are sometimes authorized to hold and do hold 

property for the same purposes that property is held by 

private corporations or individuals.

Id.

Later, in Trenton, the Supreme Court declined to apply the 

governmental/proprietary distinction in a case where a municipality 

sought to invoke the protections of the Federal Takings Clause against 

the state. 262 U.S. at 191–92, 43 S. Ct. at 538, 67 L. Ed. at 942–43. 
95

The Trenton Court thus held that, irrespective of the nature of the 

activities of the municipality, the municipality could not invoke 

constitutional protections against the state. Id.

But the Hunter–Trenton doctrine has fallen into disuse. It has not 

been employed to bar a local constitutional challenge since 1933. See 

Nixon v. Mo. Mun. League, 541 U.S. 125, 131, 124 S. Ct. 1555, 1560, 158 

L. Ed. 2d 291, 299 (2004) (considering merits of municipalities’ 

Supremacy Clause challenge to a state statute); Romer v. Evans, 517 

U.S. 620, 625–26, 116 S. Ct. 1620, 1624, 134 L. Ed. 2d 855, 861–62 

(1996) (considering various municipalities Federal Equal Protection 

Clause challenges to state constitutional provisions); Papasan v. Allain, 

478 U.S. 265, 274–75, 106 S. Ct. 2932, 2938–39, 92 L. Ed. 2d 209, 224–

25 (1986) (remanding Equal Protection Clause challenges to state for 

consideration on merits); Lawrence County v. Lead-Deadwood Sch. Dist. 

No. 40–1, 469 U.S. 256, 257–58, 105 S. Ct. 695, 696, 83 L. Ed. 2d 635, 

639 (1985) (considering merits of Supremacy Clause challenge, with 

Hunter cited in dissent); Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 

457, 467, 102 S. Ct. 3187, 3193, 73 L. Ed. 2d 896, 905 (1982) 

(considering merits of school district’s Federal Equal Protection Clause 

challenge to a state statute); San Antonio Indp. Sch. Dist. v. Rodriguez, 

411 U.S. 1, 5 n.2, 93 S. Ct. 1278, 1282 n.2, 36 L. Ed. 2d 16, 27 n.2 

(1973) (accepting school districts intervention in plaintiff’s Equal 

Protection Clause challenge to state’s school finance scheme); Bd. of 

Educ. v. Allen, 392 U.S. 236, 240, 88 S. Ct. 1923, 1925, 20 L. Ed. 2d 

1060, 1063–64 (1968) (considering school board challenge to state 

mandates on expenditures under Establishment Clause); see also

Kathleen S. Morris, The Case for Local Constitutional Enforcement, 47 

Harv. C.R.-C.L. L. Rev. 1, 3–4 (2012) [hereinafter Morris].
96

The cases of Gomillion v. Lightfoot, 364 U.S. 339, 81 S. Ct. 125, 5 

L. Ed. 2d 110 (1960), and Allen, 392 U.S. at 236, 88 S. Ct. at 1923, 20 

L. Ed. 2d at 1060, illustrate the erosion of Hunter. In Gomillion, Justice 

Frankfurter limited the scope of Hunter and Trenton to the specific 

constitutional provisions involved in those cases, namely the Contract 

Clause, the Due Process Clause, and the Equal Protection Clause of the 

United States Constitution. 364 U.S. at 344, 81 S. Ct. at 128, 5 

L. Ed. 2d at 115. According to the court,

[A] correct reading of the seemingly unconfined dicta of 

Hunter and kindred cases is not that the State has plenary 

power to manipulate in every conceivable way, for every 

conceivable purpose, the affairs of its municipal 

corporations, but rather that the State’s authority is 

unrestrained by the particular prohibitions of the 

Constitution considered in those cases.

Id. Additionally, the Gomillion Court noted that “[l]egislative control of 

municipalities . . . lies within the scope of relevant limitations imposed by 

the United States Constitution.” Id. at 344–45, 81 S. Ct. at 129, 5 

L. Ed. 2d at 115. As noted by one later federal circuit, “Hunter, Trenton,

and allied cases are substantive holdings that the [Federal] Constitution 

does not interfere in states’ internal political organization. They are not 

decisions about a municipality’s standing to sue its state.” Rogers v. 

Brockette, 588 F.2d 1057, 1069 (5th Cir. 1979); see also Michael A. 

Lawrence, Do “Creatures of the State” Have Constitutional Rights?: 

Standing for Municipality to Assert Procedural Due Process Claims Against 

the State, 47 Vill. L. Rev. 93, 101 (2002) [hereinafter Lawrence].

Further, the animating principle in Hunter and Trenton is that 

federal courts should not consider federal constitutional claims brought 

by government subdivisions against the state. In other words, 

considerations of federalism played a significant role in denying standing 
97

for adjudication of intragovernmental disputes in state court. Hunter

and Trenton are not authority on the question of whether a government 

subdivision may bring state constitutional claims in a state court against 

the state. See Bd. of Levee Com’rs of the Orleans Levy Bd. v. Huls, 852 

F.2d 140, 143 (5th Cir. 1988) (finding the concept of state suing itself 

untenable in federal system).

Indeed, we have at least entertained constitutional challenges 

raised by local governments against state entities in contexts other than 

challenges to limitations of power. For example, in City of Corallville v. 

Iowa Utilities Board, the city challenged a tariff regime promulgated 

pursuant to Iowa Code chapter 476 and sought to be enforced by the 

Iowa Utilities Board. 750 N.W.2d 523, 527 (Iowa 2008). The city’s 

challenge was in part rooted in the uniformity requirements of article I, 

section 6 and article III, section 30 of the Iowa Constitution, collectively 

viewed as providing protection similar in scope, import, and purpose to 

the equal protection provisions of the Fourteenth Amendment to the 

Federal Constitution. Id. at 530. We considered this challenge on the 

merits, concluding under the facts and circumstances presented that 

there was no constitutional infirmity. Id. at 531.

According to one authority, municipal corporations may have 

standing to assert procedural due process claims against their creating 

state for the deprivation of certain liberty and property interests that do 

not involve substantive matters of the state’s internal political 

organization. See Lawrence, 47 Vill. L. Rev. at 94 n.7; Morris, 47 Harv. 

C.R.-C.L. L. Rev. at 43–44. This is precisely the situation that arose in 

City of Coralville, 750 N.W.2d at 526.

In any event, state takings law has traditionally recognized the 

distinction between proprietary and governmental functions in its state 
98

law and allowed municipalities to bring takings claim against other 

governmental entities. As noted above, Iowa caselaw has long recognized 

the distinction between proprietary and governmental functions. See, 

e.g., Stanolind, 216 Iowa at 441, 249 N.W. at 369; Scott County v. 

Johnson, 209 Iowa 213, 221, 222 N.W. 378, 381 (1929); Miller Grocery, 

195 Iowa at 1312, 192 N.W. at 307; Grefe, 139 Iowa at 30–31, 117 N.W. 

at 18–19; Barker, 116 Iowa at 106, 89 N.W. at 207–08. In these 

traditional terms, in the context of a taking, a municipal water supplier 

drawing water from a public water source is acting in a proprietary 

capacity. DMWW in providing its services is not acting on behalf of the 

state but as an agent of its local customers. See Morris, 47 Harv. C.R.-

C.L. L. Rev. at 7. DMWW should not be regarded as an instrument of the 

state, but an instrument of the citizens it serves. 

Thus, while it may be that a government subdivision cannot 

challenge matters related to the internal political organization of the 

state, it can challenge actions of government subdivisions that allegedly 

run afoul of the specific constitutional command of the takings provision 

of article I, section 18 of the Iowa Constitution. Therefore, I conclude 

that DMWW has standing to bring its takings claim under Iowa 

Constitution, article I, section 18 against the drainage district.

D. Property Interest: Riparian Water Pollution as Taking of 

“Property.” According to one commentator, one of the most divisive 

issues in contemporary natural resource law in the United States is 

whether interests in water are recognized as property. Sandra B. Zellmer 

& Jessica Harder, Unbundling Property in Water, 59 Ala. L. Rev. 679, 

681–82 (2008). Among other things, how one characterizes the “stick” is 

critical in the analysis. DMWW does not assert a right to allocation of 

water, but rather a riparian right of use.
99

The word “riparian” comes from the Latin word for “bank.” Note, 

Private Remedies for Water Pollution, 70 Colum. L. Rev. 734, 735 (1970). 

Riparian rights are restricted to owners of land with a bank fronting 

upon some point on the watercourse. Id. “Riparian rights do not depend 

upon ownership of the watercourse’s bed and do not include ownership 

of the water itself.” 1 Linda A. Malone, Riparian Rights, Environmental 

Regulation of Land Use § 8.2, Westlaw LWATRR (database updated Nov. 

2016) [hereinafter Malone]. Because of the pollution, according to 

DMWW, it cannot use the water without expenditure of funds to remove 

the nitrates.

It may seem a right of use is somewhat intangible and novel 

property concept. But easements across land involve a right of use and 

they have long been recognized as a kind of property interest, and Iowa 

caselaw supports that proposition. See Bormann v. Bd. of Supervisors,

584 N.W.2d 309, 316 (Iowa 1998); Hosford v. Metcalf, 113 Iowa 240, 

244–45, 84 N.W. 1054, 1055–56 (1901) (describing how a license may 

become an easement on the land which is then a transferable interest in 

property); see generally Eugene Davis, Water Rights in Iowa, 41 Iowa L. 

Rev. 216, 220–23 (1956).

And, there are many cases from other jurisdictions that suggest 

that riparian rights include the right to water of a certain quality. See, 

e.g., Harrell v. City of Conway, 271 S.W.2d 924, 926 (Ark. 1954); Collens 

v. New Canaan Water Co., 234 A.2d 825, 831 (Conn. 1967); Montelious v. 

Elsea, 161 N.E.2d 675, 678 (Ohio Ct. Com. Pl. 1959); see also Robin 

Kundis Craig, Defining Riparian Rights as “Property” Through Takings 

Litigation: Is There a Property Right to Environmental Quality?, 42 Envtl. 

L. 115, 145 & n.232 (2012). The leading authorities approve of this 

approach. See, e.g., 3 Tiffany Real Property § 730, Westlaw (3d ed. 
100

database updated 2016) [hereinafter Tiffany] (“The right of the riparian 

owner . . . extends to the quality as well as the quantity of the water 

. . . .”); 1 Malone § 8.2 (“[A] riparian has a right to the natural flow of a 

watercourse without change in quantity or quality.”).

The notion of a riparian right to water quality is embraced in the 

Restatement (Second) of Torts. Section 850 provides a reasonable use 

rule, stating “A riparian proprietor is subject to liability for making an 

unreasonable use of the water of a watercourse or lake that causes harm 

to another riparian proprietor’s reasonable use of water or his land.” 

Restatement of the Law (Second) Torts § 850, at 217. Section 850A then 

provides a number of factors to be considered in determining reasonable 

use, including,

(a) [t]he purpose of the use, 

(b) the suitability of the use to the watercourse or lake, 

(c) the economic value of the use, 

(d) the social value of the use, 

(e) the extent and amount of the harm it causes, 

(f) the practicality of avoiding the harm by adjusting 

the use or method of use of one proprietor or the other, 

(g) the practicality of adjusting the quantity of water 

used by each proprietor, 

(h) the protection of existing values of water uses, 

land, investments and enterprises, and 

(i) the justice of requiring the user causing harm to 

bear the loss.

Id. § 850A, at 220; see generally 1 Malone § 8.2; A. Dan Tarlock, Law of 

Water Rights and Resources § 3.60, Westlaw (database updated July 

2016) (rejecting abstract standards or per se rules in favor of analysis of 
101

what uses are in fact protected based on all relevant facts and 

circumstances).

As is apparent from this test, the law of nuisance and the law of 

takings overlap substantially. Many of the factors of nuisance are 

similar to those in the Restatement. The inquiry of whether a nuisance 

is present and whether a taking requiring just compensation has arisen 

are determined by a similar, fact-based inquiry.19

The relationship between nuisance and takings law is further 

illustrated in our caselaw. For instance, in Bormann, we held that a 

nuisance immunity provision in an agricultural land preservation statute 

was an unconstitutional taking under the United States and Iowa 

Constitutions. 584 N.W.2d at 321. We came to a similar conclusion in 

Gacke, where we held that a statutory grant of nuisance immunity 

amounted to a taking of property that required payment of just 

compensation. 684 N.W.2d at 175.

How the Restatement (Second) section 850A factors would play out 

in this litigation, of course, cannot be determined at this stage. Some of 

the factors may support the drainage district defendants, while others 

may support DMWW. At this time, the question of whether DMWW has a 

valid property interest based on its riparian rights cannot be decided as a 

matter of law, but is a question of fact. See 3 Tiffany § 730 

(“[R]easonable use of water . . . [is] one of fact.”].

19We have no occasion to opine now whether the test for a taking of a riparian 

interest in the use of water is the same as a nuisance claim or, as suggested by one 

commentator, somewhat more demanding. See Carlos A. Ball, The Curious Intersection 

of Nuisance and Takings Law, 86 B.U. L. Rev. 819, 878–79 (2006). Ball reads our 

Bormann case as indicating that the proof required for nuisance and taking is the same 

under Iowa law. Id. at 854–56.

 
102

E. State Authorization as Defeating Takings Claim. The 

majority suggests that because drainage districts advance legitimate 

state interests, there can be no takings claim. I view this as an incorrect 

statement of law.

It certainly cannot be denied that drainage districts advance 

legitimate state interests. But the argument proves too much. For 

example, a sewage treatment plant advances legitimate state interests, 

but can it be said categorically that there is no taking if a sewage 

treatment plant so pollutes waterways that it is no longer safe to inhabit 

downstream property? See Bowman v. Humphrey, 132 Iowa 234, 236–

37, 109 N.W. 714, 715 (1906) (holding that nuisance is still a nuisance 

even if it comes from a “legitimate enterprise, or one of great and general 

convenience and benefit”); accord Newton v. City of Grundy Center, 246 

Iowa 916, 922, 70 N.W.2d 162, 165 (1955). I note with interest that 

while some nuisance statues expressly exempt “conduct done or 

mandated under a statute,” see, e.g., Cal. Civ. Code § 3482 (West, 

Westlaw current through 2016 Reg. Sess., ch. 8 of 2015–2016 2d Ex. 

Sess. and all propositions on the 2016 ballot); Wash. Rev. Code Ann. 

§ 7.48.160 (West, Westlaw current through 2016 Reg. and 1st Special 

Sess.). Iowa’s nuisance statute does not have such a provision. 

Meiners and Yandel, authorities on law and economics, make the 

aforementioned point by citing the classic case of Carmichael v City of 

Texarkana, 94 F. 561 (W.D. Ark. 1899). Roger Meiners & Bruce Yandle, 

Common Law and the Conceit of Modern Environmental Policy, 7 Geo. 

Mason L. Rev. 923, 945 (1999). The Carmichaels owned a forty-five-acre 

farm in Texas located on the border with Arkansas. Id. at 561. The city 

of Texarkana, Arkansas, built a sewage plant for the city and proceeded 

to deposit sewage immediately opposite the plaintiffs homestead about 
103

eight feet from the state line. Id. at 562. The defendant alleged the 

sewage plant created a “cesspool” and was “a great nuisance, because it 

fouls, pollutes, corrupts, contaminates, and poisons the water.” Id. The 

court noted that the city was operating properly under state law to build 

the sewer system. Id. at 564. But the lawfulness of the system did not 

prevent the claim. Id. at 564–66. According to the court,

If a riparian proprietor has a right to enjoy a river so far 

unpolluted that fish can live in it and cattle drink of it, and 

the town council of a neighboring borough, professing to act 

under statutory powers, pour their house drainage and the 

filth from water-closets into the river in such quantities that 

the water becomes corrupt and stinks, and fish will no 

longer live in it, nor cattle drink it, the court will grant an 

injunction to prevent the continued defilement of the stream 

. . . .

Id. at 573.

Based on applicable case law, I do not think the fact that the 

legislature has authorized the construction of drainage improvements 

means that a takings claim cannot be presented when a drainage district 

allegedly operates its drainage district in violation of the environmental 

laws in Iowa Code Chapter 657 and common law nuisance.

VI. Conclusion.

Based on the above reasoning, I would answer the certified 

questions as follows.

Question 1: As a matter of Iowa law, does the doctrine of implied 

immunity of drainage districts as applied in cases such as Fisher v. 

Dallas County, 369 N.W.2d 426 (Iowa 1985), grant drainage districts 

unqualified immunity from all of the damage claims set forth in the 

Complaint (docket no. 2)?

Answer: Yes as to money damages generally. No as to just 

compensation that might arise from a takings claim.
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Question 2: As a matter of Iowa law, does the doctrine of implied 

immunity grant drainage districts unqualified immunity from equitable 

remedies and claims, other than mandamus?

Answer: No.

Question 3: As a matter of Iowa law, can the plaintiff assert 

protections afforded by the Iowa Constitution’s inalienable rights, due 

process, equal protection, and takings clauses against drainage districts 

as alleged in the complaint?

Answer: Yes with respect to the takings clause, no with respect to 

all other clauses.

Question 4: As a matter of Iowa law, does the plaintiff have a 

property interest that may be the subject of a claim under the Iowa 

Constitution’s takings clause as alleged in the complaint?

Answer: Possibly, depending on further factual development.

In summary, I would find that DMWW’s lawsuit should be allowed 

to proceed. Of course, I express no view on the merits of the litigation.

Cady, C.J., joins this concurrence in part and dissent in part.