IN THE SUPREME COURT OF IOWA

No. 14–0205

Filed November 6, 2015

MONROE BRANSTAD,

Appellant,

vs.

STATE OF IOWA ex rel. NATURAL RESOURCE COMMISSION and the 

IOWA DEPARTMENT OF NATURAL RESOURCES,

Appellees.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Hancock County, Rustin 

Davenport, Judge.

The court of appeals held that no exceptions to Iowa Code section 

625.29(1) applied to preclude an award of attorney fees to Branstad. It

reversed the decision of the district court and remanded for a calculation 

of attorney fees. DECISION OF COURT OF APPEALS VACATED; 

DISTRICT COURT JUDGMENT AFFIRMED.

Christine E. Branstad of Branstad Law, PLLC, Des Moines, and 

James L. Pray of Brown, Winick, Graves, Gross, Baskerville and

Schoenebaum, PLC, Des Moines, for appellant.
2

Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Solicitor 

General, and David R. Sheridan and David L. Dorff, Assistant Attorneys 

General, for appellees.
3

ZAGER, Justice.

In this appeal we are asked to decide whether the State’s role is 

“primarily adjudicative” when the Natural Resource Commission decides 

a contested case following an investigation and subsequent decision by 

the Department of Natural Resources to assess restitution. We find that 

the State’s role in this case was primarily adjudicative, precluding an 

award of attorney fees. See Iowa Code § 625.29(1)(b) (2011). Therefore, 

we vacate the decision of the court of appeals and affirm the judgment of 

the district court denying attorney fees.

I. Background Facts and Proceedings.

The Iowa Department of Natural Resources (DNR) was called to 

investigate a fish kill that occurred in the Winnebago River on or around 

August 28, 2008. The agency found the following facts.

Scott Grummer, a biologist for the DNR, led the investigation into 

the fish kill. During the investigation, Grummer interviewed Monroe 

Branstad about the possibility that the fish kill was caused by pollution 

from his farming operation. According to Grummer, Branstad said he 

had recently installed a silage leachate runoff basin on his property. 

Branstad also said that he was the only farmer in the area he knew of 

who stored silage leachate. The fish kill affected 16.1 miles of the 

Winnebago River.

As a result of Grummer’s investigation, he determined that the 

release of sweet corn silage runoff from Branstad’s farming operation 

caused the fish kill on the Winnebago River. Grummer also performed a 

fish kill assessment, which led him to calculate that the number of fish 

killed was 31,244 and that those fish had a monetary value of 

$63,020.23. As a result of this investigation and fish kill assessment,

the DNR prepared a litigation report and made a referral to the attorney 
4

general’s office for appropriate enforcement action pursuant to Iowa Code 

section 455B.191 (2009). 

On May 11, 2010, Branstad entered into a consent order with the 

State. As part of this consent order, Branstad admitted that on August 

28 and 29, 2008, sweet corn silage leachate, a pollutant, discharged from

a containment basin on his farm operation into the Winnebago River in 

violation of Iowa Code section 455B.186(1). However, Branstad denied

the discharge caused the death of fish in the Winnebago River and 

specifically reserved his right to contest any claim for damages brought 

by the DNR for the fish kill pursuant to Iowa Code section 481A.151 and 

Iowa Administrative Code chapter 571—113. Branstad agreed to pay a 

civil penalty of $10,205 and an administrative penalty of $6795 for the 

violations.

On June 10, the DNR submitted its restitution assessment to 

Branstad. As noted in the restitution assessment, Iowa Code section 

481A.151 provides that any person who is liable for polluting water of the 

state in violation of state law shall be required to pay restitution for the 

injury. Id. § 481A.151(1). This Code section also authorizes the Iowa 

Natural Resource Commission (Commission) to adopt rules providing for 

procedures for the investigation of violations and the assessment of 

restitution amounts. Id. § 481A.151(2). The restitution assessment also 

set forth Branstad’s appeal rights pursuant to Iowa Code section

481A.151(2) and Iowa Administrative Code rules 571—7.1 and 561—7.4. 

As set forth in the restitution assessment, “[a] contested hearing will then 

be commenced” pursuant to the above statutes and rules. Branstad 

timely appealed.

A contested hearing was conducted on July 25 before an 

administrative law judge (ALJ). In his appeal, Branstad raised a number 
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of arguments and defenses. During the proceeding, both Branstad and 

the DNR were represented by counsel. On December 6, the ALJ issued a 

proposed decision that affirmed the restitution assessment in its entirety, 

including the restitution amount of $61,794.49.1 Branstad timely 

appealed the proposed decision of the ALJ to the Commission. On March 

8, 2012, the Commission conducted a hearing on the appeal at which all 

parties were able to argue their respective positions. At the conclusion of 

the hearing, the Commission voted 4–1 to affirm the proposed decision of 

the ALJ, which then became its final decision. 

Branstad timely filed his petition for judicial review in the district 

court. In its ruling issued July 16, the district court affirmed the final

decision of the Commission on most of Branstad’s arguments. However, 

the district court found that the DNR failed to follow its own rules for 

investigating fish kills. The district court found that the extrapolation 

method used by the DNR when it investigated the Winnebago River fish 

kill was incorrect and inconsistent with the methods prescribed by the 

American Fisheries Society Special Publication 24 (AFS 24). The district 

court reversed the final decision of the Commission and struck the 

restitution assessment. On July 29, the DNR requested that the district 

court reconsider its ruling and remand the case for a restitution 

calculation based only on the amount of dead fish actually counted. The 

district court determined that this was consistent with the rules 

contained in AFS 24. The district court remanded the case to the 

1Following the investigation, Grummer initially calculated the amount of 

restitution owed to be $63,020.23, using the American Fisheries Society Special 

Publication 30 (AFS 30). Later, using AFS 24, Grummer calculated the amount owed as 

$61,448.47. With costs, the final amount in the restitution assessment given to 

Branstad was $61,797.49.

 
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Commission to recalculate the damages based upon the 2233 dead fish 

actually counted by the DNR.

In its decision on remand, the Commission reduced the restitution 

assessment to Branstad as a result of the Winnebago River fish kill to 

$5298.19. Branstad did not appeal this restitution assessment.

On October 30, Branstad filed an application for an award of 

attorney fees under Iowa Code section 625.29 (2011). The district court 

denied Branstad’s motion for attorney fees on January 3, 2014. In 

denying the motion, the district court found three exceptions to the 

requirement to award attorney fees applied: the State’s position was 

supported by substantial evidence, the role of the State was primarily 

adjudicative, and an award of fees in the situation would be unjust. Id.

§ 625.29(1)(a)–(c). Because it found these exceptions applied, the district 

court did not rule on whether Branstad was the prevailing party.

Branstad appealed the decision of the district court. We 

transferred the case to the court of appeals. The court of appeals 

reversed the district court’s decision and remanded the case for a 

calculation of attorney fees. The court of appeals held that none of the

exceptions found in Iowa Code section 625.29(1) applied to Branstad’s 

case to preclude an award of attorney fees. The court of appeals also 

held that the district court should have found Branstad was the

prevailing party under the statute.

The State filed an application for further review, which we granted.

II. Standard of Review.

The standard of review we use for cases involving a district court’s 

interpretation of a statute is for correction of errors at law. Star Equip., 

Ltd. v. Iowa Dep’t of Transp., 843 N.W.2d 446, 451 (Iowa 2014). We are 

not bound by the district court’s legal conclusions. Van Sloun v. Agans 
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Bros., Inc., 778 N.W.2d 174, 179 (Iowa 2010). The sole question we 

address is whether the district court correctly applied the law with 

respect to an award of attorney fees under Iowa Code section 625.29.

Remer v. Bd. of Med. Exam’rs, 576 N.W.2d 598, 600 (Iowa 1998).

III. Analysis.

Because an award of attorney fees are a derogation of the common 

law, attorney fees “ ‘are generally not recoverable as damages in the 

absence of a statute or a provision in a contract.’ ” Botsco v. Davenport 

Civil Rights Comm’n, 774 N.W.2d 841, 845 (2009) (quoting Kent v. Emp’t 

Appeal Bd., 498 N.W.2d 687, 689 (Iowa 1993)). The statutory

authorization must be express and “ ‘must come clearly within the terms 

of the statute.’ ” Id. (quoting Thorn v. Kelley, 257 Iowa 719, 726, 134 

N.W.2d 545, 548 (1965)). Iowa Code section 625.29(1) is such a 

statutory exception to the rule, and it allows for the recovery of attorney 

fees in some civil actions that involve the State. Remer, 576 N.W.2d at

600. It provides, in part:

Unless otherwise provided by law . . . the court in a civil 

action brought by the state or an action for judicial review 

brought against the state pursuant to chapter 17A other 

than for a rulemaking decision, shall award fees and other 

expenses to the prevailing party unless the prevailing party 

is the state. However, the court shall not make an award 

under this section if it finds one of the following: 

a. The position of the state was supported by 

substantial evidence.

b. The state’s role in the case was primarily 

adjudicative.

c. Special circumstances exist which would make the 

award unjust.
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Iowa Code § 625.29(1)(a)–(c). Although there are several exceptions listed 

under the statute, any one exception can prevent a party from being 

awarded attorney fees. See id. § 625.29(1).

A. Prevailing Party. The district court declined to decide 

whether Branstad was the prevailing party under the statute because it 

found that the exceptions under Iowa Code section 625.29(1) applied to 

prevent an award of attorney fees. Branstad contends it was error for the 

district court not to address whether he was the prevailing party. 

However, we have previously declined to award attorney fees under one 

of the exceptions to section 625.29(1) without addressing whether the 

defendant was the prevailing party. See In re Property Seized from

McIntyre, 550 N.W.2d 457, 460 (Iowa 1996). Because we ultimately 

conclude that an exception to Iowa Code section 625.29(1) applies, we 

decline to determine whether Branstad was the prevailing party under 

the statute.

B. Exceptions to an Award of Attorney Fees Under 

625.29(1). The district court relied on three of the exceptions contained 

in Iowa Code section 625.29(1) to deny Branstad’s motion to recover 

attorney fees. The court of appeals held none of these exceptions applied 

to preclude the award of attorney fees. However, in its application for 

further review, the State focused its argument largely on whether the 

action of the Commission was primarily adjudicative. See Iowa Code 

§ 625.29(1)(b). Focusing primarily on the statute, we must determine if 

the award of attorney fees is prohibited by the exception because the 

Commission’s role was primarily adjudicative.

Branstad argues that we should consider the DNR—not the 

Commission—to be the “State” for purposes of the “State’s role” under 

the statute. We do not agree. Iowa Code section 481A.151 provides that 
9

the DNR, in its investigatory role, was acting under the umbrella of the 

Commission. See id. § 481A.151(2) (2009). The statute requires that

“[t]he commission shall adopt rules providing for procedures for 

investigations and the administrative assessment of restitution amounts. 

The rules shall establish an opportunity to appeal a departmental action 

including by a contested case proceeding under chapter 17A.” Id. The 

Code clearly anticipates that the DNR will act as an investigatory body 

and the Commission will take the final agency action if the DNR’s 

restitution assessment is appealed. See id.

The phrase “primarily adjudicative” is not defined in the Code. 

When we are asked to interpret the language of a statute, we apply wellsettled principles of statutory interpretation:

The purpose of statutory interpretation is to determine the 

legislature’s intent. We give words their ordinary and 

common meaning by considering the context within which 

they are used, absent a statutory definition or an established 

meaning in the law. We also consider the legislative history 

of a statute, including prior enactments, when ascertaining 

legislative intent. When we interpret a statute, we assess the 

statute in its entirety, not just isolated words or phrases. 

We may not extend, enlarge, or otherwise change the 

meaning of a statute under the guise of construction.

Schaefer v. Putnam, 841 N.W.2d 68, 75 (Iowa 2013) (internal quotation 

marks omitted).

“We also consider the statute’s ‘subject matter, the object sought to 

be accomplished, the purpose to be served, underlying policies, remedies 

provided, and the consequences of the various interpretations.’ ” Cox v. 

State, 686 N.W.2d 209, 213 (Iowa 2004) (quoting State v. Albrecht, 657 

N.W.2d 474, 479 (Iowa 2003)).

While primarily adjudicative is not defined by statute, we are not 

without guidance on this issue. In Remer, the court was faced with the 

question of whether the board of medical examiners’ role in a disciplinary 
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proceeding against a physician was primarily adjudicative under the 

statute in determining whether to award attorney fees. 576 N.W.2d at 

599–600. In that case, the board began an investigation against Remer, 

a licensed doctor, based on complaints received by the board. Id. at 599. 

The board investigated the merits of the complaint and filed formal 

disciplinary charges against Remer. Id. Once the disciplinary charges 

were filed against Remer, notice was served on him, and his case was 

contested in front of a three-member panel of the board. Id. at 603. The 

board was assisted by an impartial ALJ. Id. The attorney general 

prosecuted the case against Remer. Id. at 599. Although the charges 

against Remer were ultimately dismissed by the board, Remer and the 

board agreed that final action by the agency was achieved. Id. at 603.

The court defined primarily adjudicative in Remer and concluded 

that the board’s role was primarily adjudicative under the statute. Id. at 

601, 603. “[I]f an agency’s function principally or fundamentally 

concerns settling and deciding issues raised, its role is primarily 

adjudicative.” Id. at 601. When a court determines whether the state’s 

role is primarily adjudicative in the context of this statute, it must look at 

the state’s role in the case currently in front of it, and not the state’s role 

in other, similar cases or the state’s role generally. Id.

The parties agree that the framework this court set out in Remer is 

appropriate for determining whether to award attorney fees. However, 

they disagree as to whether the procedural history in this case is similar 

enough to Remer to preclude an award of attorney fees to Branstad. The 

district court found that the State’s role in this case was primarily 

adjudicative because the agency’s role was to investigate, to determine if 

restitution was appropriate and in what amount, and to consider the 

defenses argued by Branstad. The court of appeals disagreed and 
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reversed on appeal, basing its decision primarily on procedural 

differences between Remer and Branstad’s case.

Although it was not exactly the same, the procedure followed by 

the Commission aligns with that of Remer. Id. at 599. As in Remer, the 

DNR received complaints about the fish kill and investigated it before 

assessing restitution and before the hearing. Although Branstad’s 

hearing was in front of an ALJ rather than a panel of the Commission, 

the opinion issued by the ALJ was only a proposed decision. The 

decision did not become final until it was heard and considered by the 

Commission.

We also consider the term primarily adjudicative in the context of 

the statute defining the role of the Commission. As defined by statute, 

the role of the Commission includes “establish[ing] policy and adopt[ing] 

rules,” in addition to “[h]ear[ing] appeals in contested cases pursuant to 

chapter 17A.” Iowa Code § 455A.5(6)(a)–(b). A contested case is also 

defined in chapter 17A as “a proceeding including but not restricted to 

ratemaking, price fixing, and licensing in which the legal rights, duties or 

privileges of a party are required by Constitution or statute to be 

determined by an agency after an opportunity for an evidentiary 

hearing.” Id. § 17A.2(5). The Commission in this case followed the exact 

duties outlined in the statute—to act as an adjudicative body in a 

contested hearing. See id. § 455A.5(6)(b). Although the restitution 

amount requested by the DNR was ultimately found to be the result of an 

improper application of AFS 24, the Commission weighed the evidence 

about the fish kill, applied the rules, considered Branstad’s various 

defenses, and determined that the amount in the restitution assessment 

was proper. The restitution assessment was later found to be improper
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during judicial review in district court. However, this is precisely the 

procedure that should be followed to correct a final agency decision.

We also rely on dictionary definitions to determine the plain and 

ordinary meaning of the phrase primarily adjudicative. Webster’s 

Dictionary defines “adjudicate” as “to settle finally (the rights and duties 

of the parties to a court case) on the merits of issues raised,” to “enter on 

the records of a court (a final judgment, order, or decree of sentence).” 

Webster’s Third New International Dictionary 27 (unabr. ed. 2002). The 

Commission’s action in this case falls squarely within the definition of 

adjudicate. The Commission was presented with the fish kill 

investigation, the restitution assessment, and various defenses raised by 

Branstad. Although it was the impartial ALJ who heard the case and 

made an initial decision, the Commission made the final decision after 

weighing the evidence, considering the defenses, and determining the 

rights and duties of the parties.

We are mindful of the concerns raised by Justice Carter in his 

special concurrence in Remer regarding cases in which the potential 

award of attorney fees is swallowed by the exceptions. See Remer, 576 

N.W.2d at 604 (Carter, J., concurring specially). However, a

commentator who has reviewed the legislative history notes that, while 

there is no explanation provided in the legislation, previous proposed

bills would have eased the ability to award attorney fees against the 

State. See Samuel A. Thumma & Barbara J. Dawson, The Iowa Equal 

Access to Justice Act: Is Recovery Available?, 39 Drake L. Rev. 431, 436–

42 (1989–90). These bills were rejected in favor of more limiting 

language contained in the final legislation. Id. Key among legislative 

concerns with prior forms of the bill was the cost to the State if attorney 

fees were awarded often. Id. at 441.
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Because we find the State’s role was primarily adjudicative and the 

statutory exception contained in Iowa Code section 625.29(1)(b) applies, 

an award of attorney fees is not proper in this case. Because any one 

exception can prevent the district court from awarding attorney fees 

under the statute, we need not address the other exceptions that may 

apply under Iowa Code section 625.29(1).

IV. Conclusion.

We hold that the State’s role in this case—the final decision of the 

Commission regarding the amount of restitution for the fish kill—was 

primarily adjudicative and falls within the exception found in Iowa Code 

section 625.29(1)(b) (2011). Therefore, the district court was correct in 

its application of the law in denying an award of attorney fees to

Branstad. We vacate the decision of the court of appeals and affirm the 

judgment of the district court.

DECISION OF COURT OF APPEALS VACATED; DISTRICT 

COURT JUDGMENT AFFIRMED.