Amended August 22, 2017 Tom Brakke and Rhonda Brakke D/B/A/ Pine Ridge Hunting Lodge, and McBra, Inc. Vs. Iowa Department of Natural Resources and Iowa Natural Resource Commission ( 2017 )

IN THE SUPREME COURT OF IOWA
No. 15–0328
Filed June 16, 2017
Amended August 22, 2017
TOM BRAKKE and RHONDA BRAKKE d/b/a/ PINE RIDGE HUNTING
LODGE, and McBRA, INC.,
Appellees,
vs.
IOWA DEPARTMENT OF NATURAL RESOURCES and IOWA NATURAL
RESOURCE COMMISSION,
Appellants.
Appeal from the Iowa District Court for Polk County, Dennis J.
Stovall, Judge.
The Iowa Department of Natural Resources appeals from a district
court order ruling an emergency order was outside of its legislative grant
of authority. AFFIRMED.
Thomas J. Miller, Attorney General, David L. Dorff, Assistant
Attorney General, for appellants.
Rebecca A. Brommel and Douglas E. Gross of Brown, Winick,
Graves, Gross, Baskerville and Schoenebaum, P.L.C., Des Moines, for
appellees.
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APPEL, Justice.
This case presents a challenge by landowners to an emergency
order issued by the Iowa Department of Natural Resources (DNR) to
order the landowners to quarantine land formerly used as a whitetail
deer preserve for five years after whitetail deer harvested on the property
tested positive for chronic wasting disease, or CWD. The DNR emergency
order required the landowners to repair and maintain an electric fence
around the property for the quarantine period.
The landowners challenged the DNR emergency order in an
administrative appeal under the Iowa Administrative Procedures Act,
Iowa Code section 17A.19(10) (2013). An administrative law judge issued
a proposed decision, finding the DNR lacked the statutory authority to
issue the emergency order imposing a quarantine on the land. Upon
review by the Iowa Natural Resources Commission (NRC), the NRC
reversed the ruling, finding instead that the DNR had sufficient statutory
authority to support the order. The landowners appealed.
The district court reversed the NRC. The court held the DNR’s
emergency order was irrational, illogical, and wholly unjustifiable under
Iowa Code section 17A.19(10)(l) because the DNR was acting outside the
legislature’s grant of authority. The court, however, rejected the
landowners’ argument that the DNR’s emergency order amounted to a
compensable taking under the United States and Iowa Constitutions.
Upon entering its judgment, the court also refused to reopen the record
to allow the DNR to present additional evidence that the landowners
received certain indemnity payments from the United States Department
of Agriculture (USDA).
The DNR appealed, and the landowners cross-appealed. For the
reasons expressed below, we conclude the DNR lacked statutory
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authority to issue an emergency order that imposed a quarantine on land
used as a whitetail deer-hunting preserve. We also conclude the action
of the DNR did not amount to an impermissible taking of property under
the United States Constitution or the Iowa Constitution. In light of these
rulings, we conclude the DNR’s challenge of the district court’s failure to
reopen the record to receive additional evidence is moot. We therefore
affirm the judgment of the district court.
I. Factual and Procedural Background.
A. Introduction: Positive CWD Test from Deer Harvested at
the Pine Ridge Hunting Lodge. In the 1990s, Tom and Rhonda Brakke
(the Brakkes) established a whitetail deer-breeding farm in Clear Lake,
Iowa. In 2005, they bought Pine Ridge Hunting Lodge (Pine Ridge) in
Davis County, Iowa, for $575,000. 1 The Brakkes’ purpose in purchasing
the hunting lodge was to provide an “end market” for the deer they raised
on the Clear Lake property. After the purchase, the Brakkes spent an
additional $200,000 to improve the property by constructing a cabin and
investing in additional fencing, including a fence to separate the northern
and southern halves of the property, which prevented deer from the
north side from entering the south side of the preserve and vice versa.
The property was licensed as a whitetail deer-hunting preserve
under Iowa Code chapter 484C. The majority of the deer the Brakkes
placed at Pine Ridge came from their Clear Lake breeding farm.
Whitetail deer are susceptible to CWD. CWD is a type of
transmissible spongiform encephalopathy, also known as prion disease.
The DNR seeks to prevent the spread of CWD through voluntary
1Thenorth half of the property was purchased by McBra, Inc. through a 1031
exchange, while Tom and Rhonda personally purchased the south half of the property.
For the purposes of this appeal, the owners will be referred to as the Brakkes.
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agreements with breeding farms and statutory regulation of whitetail
deer-hunting preserves. See Iowa Code § 484C.12.
Originally, the Brakkes participated in a voluntary CWD program
at their Clear Lake breeding farm so they could transport and sell their
deer to others. With the success of their hunting operations at Pine
Ridge, in 2012 the Brakkes ceased enrollment of the Clear Lake breeding
farm in the voluntary CWD program because they were no longer in the
business of selling deer to other operations. The Brakkes, however,
continued to submit samples for testing from all deer harvested from
Pine Ridge as required by Iowa Code section 484C.12.
On June 16, the DNR received notification from a CWD testing lab
that a deer from Pine Ridge tested positive for CWD. The CWD-positive
deer originally came from the Brakkes’ breeding farm in Clear Lake.
After confirming the diagnosis, the DNR notified the Brakkes on July 19.
Prior to this case, no captive or wild deer had ever tested positive for
CWD in Iowa.
Under Iowa law, the Iowa Department of Agriculture and Land
Stewardship (IDALS) regulates whitetail deer on deer farms, while the
DNR regulates deer on whitetail deer-hunting preserves. Iowa Code
§ 170.1A(2); id. § 484C.2(2). On August 29, IDALS received permission
from the Brakkes to kill and test some deer at the Clear Lake farm. One
deer at the Clear Lake farm tested positive for CWD. At some point,
IDALS issued a notice of quarantine to the Brakkes for the Clear Lake
farm.
B. September 7, 2012 Agreement. On September 7, the
Brakkes and the DNR signed an “Agreement for Chronic Wasting Disease
Recovery Plan at Pine Ridge Hunting Lodge” (Agreement). Under the
Agreement, the Brakkes were allowed to carry out planned hunts at Pine
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Ridge scheduled between September 8, 2012, and December 25, 2012.
The Brakkes, however, were required to install jointly with the DNR an
electronic fence inside the perimeter of the existing fence surrounding
Pine Ridge, with the costs split evenly between the DNR and Pine Ridge.
After construction of the electric fence, the Brakkes were solely
responsible for fence repair and maintenance. DNR staff was to conduct
weekly perimeter and fence inspections, with all repairs identified by
DNR staff to be submitted to the Brakkes in writing and completed by
the Brakkes within twenty-four hours.
Further, the Agreement provided that Pine Ridge be completely
depopulated of all deer and elk no later than January 31, 2013. All
animals were to be tested for CWD and disposed of in accordance with
applicable regulations at the Brakkes’ cost. Once the depopulation of
Pine Ridge was complete, the Brakkes, at their expense, agreed to clean
and disinfect the facility in compliance with DNR rules. Finally, the
parties agreed to a future operational plan to “be developed in
conjunction with the DNR after depopulation was complete.” The term of
the Agreement was from the date of execution until January 31, 2013.
One additional deer harvested at Pine Ridge in December 2012
tested positive for CWD. After the conclusion of the hunts, Pine Ridge
depopulated all its deer. In April 2013, all feeders were disinfected with
bleach, excess feed was buried, and all the terms of the Agreement were
fulfilled with one exception—the parties did not reach an agreement on a
“future operational plan” after depopulation of the animals.
C. April 26, 2013 Letter. On April 26, the Brakkes wrote a letter
to the DNR. In the letter, the Brakkes stated, “As you know, the area
utilized by Pine Ridge Hunting Lodge as a hunting preserve is subject to
a five (5) year quarantine.” The letter noted that the Brakkes had
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“complied with all requirements of the September 7, 2012 agreement.”
The letter announced that if no response were received from the DNR,
the Brakkes would regard all requirements of the Agreement as satisfied.
The Brakkes further announced they would no longer be operating Pine
Ridge as a whitetail deer-hunting preserve.
By June 5, the DNR discovered the gates at Pine Ridge were
standing open and that portions of the fence were damaged or had been
removed.
D. The Emergency Order. On June 6, the DNR issued an
emergency order to require the Brakkes to stop their deconstruction of
the fence surrounding Pine Ridge and to immediately restore the portions
of the fence that were damaged. The emergency order also required the
Brakkes to close and keep closed all of the gates and to authorize the
DNR to access Pine Ridge for a limited duration in order to kill any deer
that may be present on the property. Finally, the emergency order
required the Brakkes submit and agree to execute a plan designed to
ensure that CWD be quarantined within, and not spread beyond, Pine
Ridge.
On June 7, the Brakkes closed the gates at Pine Ridge and
repaired the fence. On June 11, however, wild deer were seen inside the
fence.
E. The Administrative Hearing and the Natural Resource
Commission Appeal.
1. Introduction. The Brakkes appealed the emergency order on
June 25. In the letter initiating the appeal, the Brakkes claimed the
emergency order violated their United States and Iowa constitutional
rights and other property rights because (1) the DNR lacked jurisdiction
over Pine Ridge once it was no longer a hunting preserve; (2) the terms of
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the quarantine and emergency order without compensation were an
unconstitutional taking; and (3) the DNR’s actions were arbitrary,
capricious, and an abuse of discretion.
The Brakkes cited six reasons why the DNR’s actions were
arbitrary and capricious. First, they claimed only a limited number of
deer species may contract CWD and CWD does not meaningfully limit
the growth of the species. Second, the Brakkes asserted that CWD is not
highly infectious and there is a reservoir of CWD in the wild that cannot
be fully eliminated. Third, the Brakkes claimed there are more harmful
diseases which affect deer for which the DNR does not impose such
drastic measures. Fourth, the Brakkes asserted the emergency order
would not materially affect the spread of CWD. Fifth, the Brakkes
claimed the DNR previously told them that it had no issues with
removing the fence. Finally, the Brakkes alleged that Pine Ridge was
separated into two sections and about half of the property was never
exposed to CWD.
2. Contested case hearing. A contested case hearing was held
beginning on November 18. Dale Garner of the DNR testified he
understood that the USDA indemnification plan for compensating owners
of deer killed as a result of positive CWD tests was no longer available.
Neither Iowa in general nor the DNR or the IDALS had an
indemnification plan.
The DNR presented evidence that, as a result of the quarantine,
the market value of Pine Ridge as real property had declined by
$165,000. The DNR’s appraiser testified that she had not calculated the
value of the Brakkes’ lost business in not being able to operate the
property as a hunting preserve.
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The Brakkes presented evidence from a finance expert with
experience in hunting leases that the operating income for Pine Ridge for
the year 2013, without any quarantine or restrictions, would have been
$157,537. If the Brakkes had operated Pine Ridge as a farm instead of a
hunting preserve they would have lost $22,021. The finance expert
calculated the five-year total income of Pine Ridge as a hunting preserve
at $917,309, while the five-year total income of Pine Ridge as a farm
would be negative $100,465. If the Brakkes operated Pine Ridge as a
free-range hunting operation, with no fencing or captive animals, the
five-year income would be $143,307. On cross-examination, the finance
expert admitted he was not a certified public accountant or a licensed
appraiser, and he conducted an analysis that was not a business
valuation.
After the final hearing on January 8, 2014, the Brakkes and the
DNR entered a stipulation to submit additional evidence. The stipulation
stated that in December 2013, the Brakkes had killed all the remaining
deer at Pine Ridge and the DNR collected samples from all of the adult
deer. CWD was not detected in any of the samples.
On February 26, the administrative law judge (ALJ) issued her
proposed decision. The ALJ ruled the DNR lacked jurisdiction to issue
the emergency order. The ALJ determined Iowa Code chapter 484C only
authorized the DNR to quarantine “diseased preserve whitetail,” not the
land. Thus, the DNR’s interpretation of 484C.12 granting them the
power to impose a five-year quarantine on “the preserve and all
remaining animals located within the infected preserve” was irrational,
illogical, and wholly unjustifiable because the interpretation extended,
enlarged, and changed the legislature’s intent.
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3. Appeal to NRC. On February 28, the DNR appealed the
proposed decision. On April 16, the parties submitted a second joint
stipulation regarding the submission of additional evidence. The parties
noted they “disagree[d] about the relevancy of this finding,” but “[a] wild
deer harvested in Allamakee County, Iowa in early December 2013 tested
positive for Chronic Wasting Disease.” The parties submitted briefs to
the NRC, and an unrecorded hearing was held on May 8.
On May 28, the NRC upheld the DNR’s emergency order. The
commission found the Brakkes had not met their burden in
demonstrating that Iowa Administrative Code rule 571—115.10,
authorizing the five-year quarantine “on the preserve and all remaining
animals located within the infected preserve,” was not authorized by
chapter 484C. The commission admitted that chapter 484C does not
explicitly state that the preserve land is to be quarantined, but it did not
need to because the statute also gave the DNR the duty to prevent the
spread of CWD. The commission held, as a matter of common sense and
given the scientific evidence, a quarantine on the land is required to
prevent the spread of CWD.
F. Judicial Review of NRC Action. The Brakkes petitioned for
judicial review of the NRC’s decision on June 27. On December 1, the
DNR moved for leave to present additional evidence to the NRC. The
DNR alleged the Brakkes had voluntarily depopulated their deer at the
Clear Lake farm in August of 2014 and were paid $917,100 in
indemnification by the USDA. The Brakkes resisted the motion. The
district court denied the motion on December 18, stating it did not
anticipate the need for any additional evidence in order for it to address
the issues.
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The district court issued its ruling on February 13, 2015, reversing
the commission and additionally ruling the DNR’s actions were not a
taking under the United States or Iowa Constitutions. The court found
the DNR had been vested with interpretive authority and thus the DNR’s
interpretation of the law would only be reversed if it was “irrational,
illogical, or wholly unjustifiable.” The court, however, found it was
irrational, illogical, and wholly unjustifiable for the DNR to have
interpreted the statute to give it the authority to quarantine a hunting
preserve when chapter 484C only specified the authority to quarantine
“diseased preserve whitetail.” See Iowa Code § 484C.12(1). While the
legislature intended to prevent the spread of CWD, the legislature clearly
did not intend to give the DNR unfettered authority to quarantine any
land that came into contact with infected deer. The court also held that
the DNR’s actions were not a taking because the invasion to the Brakkes’
property was temporary, both specifically as a taking per se and also as a
taking involving the Penn Central 2 factors.
The DNR appealed the district court’s decision, and the Brakkes
cross-appealed.
II. Standard of Review.
“Judicial review of agency decisions is governed by Iowa Code
section 17A.19.” Kay-Decker v. Iowa State Bd. of Tax Review, 857
N.W.2d 216, 222 (Iowa 2014). We “apply the standards of section
17A.19(10) to determine if we reach the same results as the district
court.” Renda v. Iowa Civil Rights Comm’n, 784 N.W.2d 8, 10 (Iowa
2010). The district court may properly grant relief if the agency action
prejudiced the substantial rights of the petitioner and if the agency
2Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124, 98 S. Ct. 2646,
2659 (1978).
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action falls within one of the criteria listed in section 17A.19(10)(a)
through (n). Id.
“We defer to the agency’s interpretation of law when the legislature
has clearly vested that interpretation in the agency’s discretion.” Kay-
Decker, 857 N.W.2d at 222; Renda, 784 N.W.2d at 11; see also Iowa
Code § 17A.19(11)(c). We will overturn an agency’s interpretation of law
when it has discretion only if the agency’s interpretation is “irrational,
illogical, or wholly unjustifiable.” Iowa Code § 17A.19(10)(l); Renda, 784
N.W.2d at 11.
The standard of review for constitutional claims, including with
respect to takings, is de novo. Harms v. City of Sibley, 702 N.W.2d 91,
96 (Iowa 2005); Blumenthal Inv. Trusts v. City of West Des Moines, 636
N.W.2d 255, 260 (Iowa 2001).
III. Statutory Authority of the DNR to Quarantine Land Where
Whitetail Deer Test Positive for CWD.
A. Introduction. The parties contest the scope of DNR
“quarantine” authority under Iowa Code section 484C.12. The Brakkes
point out the quarantine authority extends only to preserve whitetail
deer, while the DNR suggests the power to quarantine preserve whitetail
deer necessarily includes the power to exclude deer from reserve property
where CWD has been discovered.
B. Statutory Framework.
1. Relevant provisions of the Iowa Administrative Procedures Act.
This appeal is brought under the Iowa Administrative Procedures Act.
Under Iowa Code section 17A.23(3), “[a]n agency shall have only that
authority or discretion delegated to or conferred upon the agency by law
and shall not expand or enlarge its authority or discretion beyond the
powers delegated to or conferred upon the agency.”
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2. Statutory authority of NRC and DNR. Iowa Code chapter 484C
generally grants DNR the authority to regulate preserve whitetail. Iowa
Code § 484C.2(2). The statute defines “preserve whitetail” as a “whitetail
kept on a hunting preserve.” Id. § 484C.1(8). The statute defines a
hunting preserve as “land where a landowner keeps preserve whitetail as
part of a business, if the business’s purpose is to provide persons with
the opportunity to hunt the preserve whitetail.” Id. § 484C.1(6).
Iowa Code section 484C.12 concerns testing for CWD. Section
484C.12(1) provides,
Preserve whitetail that are purchased, propagated,
confined, released, or sold by a hunting preserve shall be
free of diseases considered reportable for wildlife . . . . The
department may provide for the quarantine of diseased
preserve whitetail that threaten the health of animal
populations.
Id. § 484C.12(1). Section 484C.12(2) relates to plans for eradication of
diseases. It provides,
The landowner, or the landowner’s veterinarian, and
an epidemiologist designated by the department shall
develop a plan for eradicating a reportable disease among
the preserve whitetail population. The plan shall be
designed to reduce and then eliminate the reportable
disease, and to prevent the spread of the disease to other
animals. The plan must be developed and signed within
sixty days after a determination that the preserve whitetail
population is affected with the disease. The plan must
address population management and adhere to rules
adopted by the department. The plan must be formalized as
a memorandum of agreement executed by the landowner or
landowner’s veterinarian and the epidemiologist. The plan
must be approved by the department.
Id. § 484C.12(2).
3. Rules related to quarantine arising from CWD. The DNR has
promulgated a rule related to its power to impose a quarantine as a
result of an outbreak of CWD. The rule provides,
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A positive test result for chronic wasting disease will result
in a minimum of a five-year quarantine on the preserve and
all remaining animals located within the infected preserve.
No animal movement in or out of the preserve shall occur
during the quarantine period.
Iowa Admin. Code r. 571—115.10.
The language of the rule is different than that under Iowa Code
section 484C.12(1). Iowa Code section 484C.12(1) provides the DNR may
provide for the quarantine of “diseased preserve whitetail,” while the rule
provides for a five-year “quarantine on the preserve and all remaining
animals located within the infected preserve.” Compare Iowa Code
§ 484.12(1), with Iowa Admin. Code r. 571—115.10.
C. Positions of the Parties. The DNR 3 argues the district court
erred when it concluded that the DNR was irrational, illogical, and wholly
unjustifiable to interpret Iowa Code section 484C.12 as granting the DNR
authority to quarantine Pine Ridge.
The DNR argues that the word “quarantine” in Iowa Code section
484C.12(1) must be understood as not only applying to the whitetail deer
that were originally at Pine Ridge, but also to the physical property itself,
even when no deer are present. According to the DNR, prions that cause
CWD are known to persist in the environment for some time even after
all infected deer have been removed or the property has ceased operating
as a hunting preserve. The DNR asserts that killing all deer and then
cleaning and disinfecting the premises are only part of a fully effective
response to an outbreak of CWD. The DNR maintains that in order to
provide effective containment of CWD, wild deer must be kept out of the
3Both the DNR and the NRC were named as parties in the litigation. For
convenience, we will collectively refer to both parties as the DNR unless context
suggests the singular usage.
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premises for an extended period of time in order to prevent them from
becoming infected.
Interpreting a quarantine otherwise, the DNR asserts, is itself
irrational, illogical, and wholly unjustifiable because it ignores the
express intent of the legislature to combat CWD due to the particular
threat it poses to the health of Iowa’s animal populations, including the
wild populations. The DNR points out no other particular disease is
mentioned in chapter 484C but CWD, indicating this disease was of
special concern to the legislature. See Iowa Code § 484C.12. According
to the DNR, it would make no sense for a legislature so concerned with
CWD to deny the state regulatory authorities the ability to protect the
whitetail population from a primary pathway for transmission of the
disease, namely exposure to prion-contaminated land.
In response to the Brakkes’ argument that the plain meaning of
Iowa Code section 484C.12 clearly deprives the DNR of jurisdiction in
this case, the DNR argues we must view the statute as a whole. In
context, the legislature’s use of “hunting preserve” and “preserve
whitetail” do not reveal the legislature’s intent with respect to the term
“quarantine.” See id. The DNR asserts that restricting access to a space
is inherent in the term “quarantine.” The DNR also points to the
scientific evidence it introduced showing the continuing virulence of
prion-contaminated areas. The DNR concludes by disputing the
Brakkes’ characterization of CWD as a disease with low impact on deer
populations and the hunting industry.
The Brakkes state that when an agency exceeds its authority, it
acts without jurisdiction, and such acts are therefore void. Here, the
Brakkes argue that under the language of Iowa Code section 484C.12,
the DNR has jurisdiction only over “preserve whitetail” and “hunting
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preserves,” which the statute defines. See id. § 484C.1(6), (8). The
Brakkes assert the DNR only has the power to impose a “quarantine of
diseased preserve whitetail” that threaten the health of animal
populations. Id. § 484C.12(1).
The Brakkes dispute the DNR’s focus on the word “quarantine.”
The Brakkes suggest the focus cannot be on the word “quarantine” but
instead on “quarantine of diseased preserve whitetail” under section
484C.12(1). The Brakkes note that as of June 6, 2013, the date of the
emergency order, they did not have any “diseased preserve whitetail” at
Pine Ridge, which itself was no longer a hunting preserve. According to
the Brakkes, agencies lose jurisdiction over licenses when the license
ends, with the only exception being when the legislature expressly
provides for continuing jurisdiction.
The Brakkes also dispute the significance of CWD on the health of
Iowa’s population of whitetail deer. According to the Brakkes, CWD
already exists at a low level in the wild deer population, with no scientific
evidence showing a negative aggregate effect of CWD on deer
populations. The Brakkes also argue that any harm CWD causes can be
mitigated by ordinary, animal disease-management techniques—a five-
year quarantine is not scientifically justified.
The Brakkes stress that, before the emergency order, the DNR had
never issued a quarantine nor any instructions to the Brakkes indicating
there was a quarantine on the property. Under the agreement the
parties signed, deer were permitted to enter and leave Pine Ridge, thereby
suggesting a quarantine was not in place. The Brakkes also argue that
because the DNR believed it did not have the ability to close the gates at
Pine Ridge once it learned the gates were open, DNR did not believe it
had a quarantine on Pine Ridge or jurisdiction to take action on its own
16
against Pine Ridge. The DNR’s claim that the quarantine existed as a
matter of law prior to the Brakkes’ surrender of their license is, according
to the Brakkes, belied by the facts.
D. Framework for Assessment of the Validity of the
Substantive Agency Rule. An agency rule is “presumed valid unless the
party challenging the rule proves ‘a “rational agency” could not conclude
the rule was within its delegated authority.’ ” Meredith Outdoor Advert.,
Inc. v. Iowa Dep’t of Transp., 648 N.W.2d 109, 117 (Iowa 2002) (quoting
Milholin v. Vorhies, 320 N.W.2d 552, 554 (Iowa 1982)); see also Iowa
Med. Soc. v. Iowa Bd. of Nursing, 831 N.W.2d 826, 839 (Iowa 2013). The
party seeking to invalidate a rule is required to show by clear and
convincing evidence that the rulemaking was beyond the agency’s
statutory authority. Davenport Cmty. Sch. Dist. v. Iowa Civil Rights
Comm’n, 277 N.W.2d 907, 910 (Iowa 1979) (suggesting the standard is
the same as “substantial evidence”); Schmitt v. Iowa Dep’t of Soc. Servs.,
263 N.W.2d 739, 744 (Iowa 1978) (analyzing whether agency’s
administrative rule was “beyond the authority delegated to it”); Arthur
Earl Bonfield, The Iowa Administrative Procedure Act: Background,
Construction, Applicability, Public Access to Agency Law, the Rulemaking
Process, 60 Iowa L. Rev. 731, 908–09 (1975).
While we grant deference to the agency’s interpretation of the
statute when the legislature has clearly vested that interpretation in the
agency, ultimately the interpretation and construction of a statute is an
issue for the court to decide. Office of Consumer Advocate v. Iowa Utils.
Bd., 744 N.W.2d 640, 643 (Iowa 2008); accord Schmitt, 263 N.W.2d at
745. In interpreting the grant of statutory authority to the agency, we
“will not look beyond the express terms of the statute if the text of the
statute is plain and its meaning clear.” Neal v. Annett Holdings, Inc., 814
17
N.W.2d 512, 519 (Iowa 2012). A statute is not plain or clear “if
reasonable minds could differ or be uncertain as to the meaning of the
statute.” Carolan v. Hill, 553 N.W.2d 882, 887 (Iowa 1996). “The plain
provisions of a statute cannot be altered by administrative rule.”
Schmitt, 263 N.W.2d at 745.
An agency possesses no common law or inherent powers.
Branderhorst v. Iowa State Highway Comm’n, 202 N.W.2d 38, 41 (Iowa
1972). The power of the agency is limited to the power granted by
statute. Id. at 40; see also Holland v. State, 115 N.W.2d 161, 163–64
(Iowa 1962). Likewise, a court may not ignore the clear language of a
statute and impose its own ideas through the guise of construction, even
if it is the best way to promote public welfare and achieve a desirable
result. Holland, 115 N.W.2d at 164.
E. Discussion.
1. Straightforward interpretation of legislative language. A
straightforward reading of the language of Iowa Code section 484C.12
supports the Brakkes’ position. The term “quarantine” cannot be
wrenched from the statutory language that follows it. The term
“quarantine” is modified by the phrase “of diseased preserve whitetail.”
See Iowa Code § 484C.12(1). It does not allow for quarantine of
nondiseased whitetail or whitetail that are not preserve whitetail.
The DNR argues the natural and logical reading would produce
absurd results. The question arises whether the absurdity doctrine
should be invoked here to support the DNR’s administrative rule and the
DNR emergency order upon which it is based.
2. Overview of the doctrine of absurdity. The doctrine of absurdity
has a good pedigree. Sutherland Statutory Construction, for instance,
notes that ordinarily, ambiguous statutory language should be construed
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in a fashion that produces a reasonable result. 2A Norman J. Singer &
Shambie Singer, Statutes & Statutory Construction § 45:12, at 104–06
(7th ed. rev. 2014) [hereinafter Statutory Construction]. But Sutherland
goes further. According to Sutherland, courts may use a “variant of the
‘reasonableness’ rule even absent ambiguity . . . when an act’s plain,
clear, literal meaning produces an unintended, absurd result.” Id. at
115. Sutherland instructs that courts find it “fundamental” that
departure from a literal construction is justified “when such a
construction would produce an ‘unreasonable’ or ‘absurd’ or
‘unworkable’ or ‘unjust’ or ‘unlikely’ result clearly inconsistent with the
purposes and policies of the act in question.” Id. at 115–19 (footnotes
omitted).
It is important at the outset to distinguish between interpreting
ambiguous statutes to avoid absurd results and declining to enforce the
literal terms of a statute to avoid absurdity. It is universally accepted
that where statutory terms are ambiguous, courts should interpret the
statute in a reasonable fashion to avoid absurd results. See id. § 46:7, at
279 (“All courts apparently agree that a finding of ambiguity opens
statutory construction to the full range of familiar, interpretive tools.”).
The true absurdity doctrine involves a different scenario. Under
the absurdity doctrine, a court declines to follow the literal terms of the
statute to avoid absurd results. See id. § 45:12, at 115. As noted by
Sutherland, this is a different question from how courts proceed upon a
finding of ambiguity. Id. Here is where the absurdity doctrine becomes
controversial. To what extent may a court evade or ignore the literal
terms of a statute to avoid a result that is not simply poor public policy,
but is so unreasonable that it could not have been intended by the
19
legislature and reflects the inherent limit of the legislative process to
foresee various applications of a statute?
3. Caselaw from other jurisdictions applying absurdity doctrine.
The cases of the United States Supreme Court have oscillated between a
textual approach that hews to a close parsing of legislative texts and a
more purposeful approach to the construction of statutes.
Support for the absurdity doctrine goes back as far as 1868. In
United States v. Kirby, the Supreme Court had occasion to ponder the
absurdity doctrine. 74 U.S. 482, 486 (1868). In that case, a statute
made it a crime to “ ‘knowing[ly] and wil[l]fully’ obstruct or retard the
passage of the mail.” Id. at 485. The question was whether a law
enforcement officer who arrested a mail carrier for murder violated the
statute. Id. at 487. The Kirby Court said no. Id. It cited the
Enlightenment philosopher Puffendorf, who concluded that a law stating
“whoever drew blood in the streets should be punished with the utmost
severity” did not apply to a surgeon who was trying to perform
therapeutic bloodletting on a person who fell down in the street in a fit.
Id.; see David M. Sollors, The War on Error: The Scrivener’s Error Doctrine
and Textual Criticism: Confronting Errors in Statutes and Literary Texts,
49 Santa Clara L. Rev. 459, 463 n.19 (2009) (noting the Kirby Court was
referencing the work of the German jurist Samuel von Pufendorf). The
Court also cited an Edwardian example that a prisoner is not guilty of
escape when the prisoner breaks out of a prison on fire. Kirby, 74 U.S.
at 487. Kirby and the examples it cites stand for the proposition that a
broadly worded and apparently unqualified statute may be narrowly
construed to avoid absurd results notwithstanding the literal terms of
the statute.
20
The Supreme Court considered another departure from the literal
terms of a statute in Holy Trinity Church v. United States, 143 U.S. 457,
12 S. Ct. 511 (1892). In Holy Trinity, the Supreme Court considered
whether a statute that on its face prohibited importation of foreigners
into the United States “to perform labor or service of any kind” applied to
a church who hired an English rector. Id. at 458, 12 S. Ct. at 511. The
statutory language was unqualified. Id. Yet, the Supreme Court held the
statute did not apply to the hiring of the rector. Id. at 465, 12 S. Ct. at
514. The Court’s refusal to apply the statute to the transaction was
particularly striking as the statute contained a specific exception for
“actors, artists, lecturers, singers, and domestic servants” but did not
include clergy in the exception. Id. at 458–59, 12 S. Ct. at 512. The
Court recognized the linguistic argument had “great force,” yet stated
that “we cannot think congress intended to denounce” the hiring of a
religious rector. Id. at 459, 12 S. Ct. at 512. The Court declared the
purpose of the statute was to prevent the influx of “cheap, unskilled
labor.” Id. at 464, 12 S. Ct. at 513. Further, the Court declared that a
purpose against religion could not be imputed to the legislation. Id. at
465, 12 S. Ct. at 514.
The Supreme Court revisited the absurdity doctrine in Public
Citizen v. United States Department of Justice, 491 U.S. 440, 109 S. Ct.
2558 (1989). The question in that case was whether the Federal
Advisory Committee Act applied to the justice department’s solicitation of
the views of committees of the American Bar Association on various
judicial nominees. Id. at 443, 109 S. Ct. at 2561. The literal terms of
the statute would have drawn within its scope any group of two or more
persons who advised the President or the executive branch. Id. at 452,
109 S. Ct. at 2566. Justice Brennan, writing for the Court, declared this
21
result was not the intention of Congress as it would prevent political
actors from the freedom to conduct their affairs. Id. at 453, 109 S. Ct. at
2566. In escaping the literal words of the statute, Justice Brennan cited
Learned Hand, who once wrote, “[I]t is one of the surest indexes of a
mature and developed jurisprudence not to make a fortress out of the
dictionary.” Id. at 454, 109 S. Ct. at 2567 (quoting Cabell v. Markham,
148 F.2d 737, 739 (2d Cir.), aff’d, 326 U.S. 404, 66 S. Ct. 193 (1945)).
In a concurring opinion, Justice Kennedy presented a narrower
version of the absurdity doctrine. Id. at 470–71, 109 S. Ct. at 2575
(Kennedy, J., concurring). According to Justice Kennedy, the plain
words of a statute could be avoided only if the literal interpretation would
lead to “patently absurd consequences” under circumstances where “it is
quite impossible that Congress could have intended the result . . . and
where the alleged absurdity is so clear as to be obvious to most anyone.”
Id. (quoting United States v. Brown, 333 U.S. 18, 27, 68 S. Ct. 376, 380
(1948)); see Glen Staszewski, Avoiding Absurdity, 81 Ind. L.J. 1001, 1047
(2006) [hereinafter Staszewski].
Finally, although not labeled as the absurdity doctrine, the
Supreme Court applied concepts similar to it in King v. Burwell, 576 U.S.
___, 135 S. Ct. 2480 (2015). In the Affordable Care Act, the meaning of
the phrase “an Exchange established by the State under [42 U.S.C.
§ 18031]” was not particularly ambiguous, at least on its face. Id. at ___,
___, 135 S. Ct. at 2482, 2489. The term “by the State” does not seem to
include by “the Federal Government.” Id. at ___, 135 S. Ct. at 2490. As
noted by Chief Justice Roberts, “Petitioners’ arguments about the plain
meaning of [the section] are strong.” Id. at ___, 135 S. Ct. at 2495. Yet,
Chief Justice Roberts concluded the narrow and specific phrase should
be read more broadly to include any exchange under the Act, including
22
those established by the Federal Government. Id. at ___, 135 S. Ct. at
2496. The Chief Justice noted that the purpose of the Affordable Care
Act was to improve the health insurance markets, not to destroy them.
Id.
In King—unlike in Kirby, Holy Trinity, and Public Citizen where the
broad terms of a statute were narrowly construed—the meaning of the
statute was seemingly expanded beyond its literal meaning to save the
statute from self-destruction. See id. The compelling gist of King is that
statutes do not commit suicide. King thus amounted to a recognition
that although “the plain language interpretation of a statute enjoys a
robust presumption in its favor, it is also true that [a legislative body]
cannot, in every instance, be counted on to have said what it meant or to
have meant what it said.” FBI v. Abramson, 456 U.S. 615, 638, 102
S. Ct. 2054, 2068 (1982) (O’Connor, J., dissenting) (footnote omitted).
A factor pulsating through some federal absurdity cases is the
desire to avoid constitutional conflict. Holy Trinity at least implies that
the application of the statute to the hiring of the rector might raise First
Amendment issues, see 143 U.S. at 465, 12 S. Ct. at 514, and the Public
Citizen majority discusses the need of the executive branch to engage in
meaningful political communications free from public disclosure, see 491
U.S. at 453, 109 S. Ct. at 2566 (majority opinion). As noted by one
appellate court, when the statute’s plain meaning is absurd, and perhaps
unconstitutional, resort to extrinsic materials is appropriate. United
States v. Romero-Bustamente, 337 F.3d 1104, 1109 (9th Cir. 2003). This
tendency is supported by the notion that if the legislative branch wishes
to trench on constitutional rights or separation of powers, it must do so
only with the clearest of intentions. Such an approach tends to use less
confrontational statutory construction as a tool to strengthen
23
underenforced constitutional norms. See Staszewski, 81 Ind. L.J. at
1045.
As noted in commentary, although application of the absurdity
principle is contested in federal courts, even those who advocate textual
or literal approaches endorse the principle in at least some contexts. See
Veronica M. Dougherty, Absurdity and the Limits of Literalism: Defining
the Absurd Result Principle in Statutory Interpretation, 44 Am. U. L. Rev.
127, 128 & n.6 (1994) [hereinafter Dougherty]. For instance, in Green v.
Bock Laundry Machine Co., staunch textualist Justice Scalia rejected
literal interpretation of Federal Rule of Evidence 609(a)(1) because it
would produce absurd results. 490 U.S. 504, 527, 109 S. Ct. 1981,
1994 (1989) (Scalia, J., concurring); see Doughtery, 44 Am. U. L. Rev. at
153–58. Similarly, Judge Easterbrook has written that the language of a
statute may be bent only when the text produces absurd results. Neal v.
Honeywell Inc., 33 F.3d 860, 862 (7th Cir. 1994), abrogated by Graham
Cty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545
U.S. 409, 415, 125 S. Ct. 2444, 2449 (2005); see Doughtery, 44 Am. U.
L. Rev. at 128 n.6. As noted by Judge Posner, even interpretive literalists
realize that “the interpreter is free (we would say compelled) to depart in
the direction of sense” where strict interpretation would yield absurd
results. Cent. States, S.E. & S.W. Areas Pension Fund v. Lady Baltimore
Foods, Inc., 960 F.2d 1339, 1345 (7th Cir. 1992).
There is caselaw in many states that supports some form of the
absurdity doctrine. See, e.g., Brock v. Townsell, 309 S.W.3d 179, 186
(Ark. 2009); Prof’l Collection Consultants v. Lauron, 214 Cal. Rptr. 3d 419,
433 (Ct. App. 2017); People v. Johnson, 77 N.E.3d 615, 619–20, (Ill.
2017); Cmty. Consol. Sch. Dist. No. 210 v. Mini, 304 N.E.2d 75, 78 (Ill.
1973); Commonwealth v. Peterson, 65 N.E.3d 1166, 1169 (Mass. 2017);
24
State ex rel. Z.C., 165 P.3d 1206, 1209 (Utah 2007). Many of the cases,
no doubt, are really cases of ambiguity and the avoidance of
unreasonable results is a conventional interpretive strategy. But this is
not always true. As noted by the Hawaii Supreme Court, “departure
from literal construction is justified when such construction would
produce an absurd and unjust result,” clearly inconsistent with the
purposes of the statute. Pac. Ins. v. Or. Auto. Ins., 490 P.2d 899, 901
(Haw. 1971). There are many state court cases utilizing the absurdity
doctrine when the plain meaning of the language does not seem
ambiguous, some of which are quite remarkable. See, e.g., Maddox v.
State, 923 So. 2d 442, 445, 448 (Fla. 2006) (holding statute prohibiting
introduction of traffic citations “in any trial” limited to any trial dealing
directly with the traffic offense); Commonwealth v. Wallace, 730 N.E.2d
275, 278 (Mass. 2000) (interpreting the phrase “trial on the merits” to
include a default judgment); State v. Spencer, 173 S.E.2d 765, 774 (N.C.
1970) (finding “standing” in the street obstructing traffic includes
walking in the street); In re Falstaff Brewing Co. re: Narragansett Brewery
Fire, 637 A.2d 1047, 1050 (R.I. 1994) (holding statute authorizing release
of “name and address” of juvenile also authorizes release of underlying
record).
If anything, the case for the absurdity doctrine may well be
stronger in state courts than in federal courts. State legislatures
generally meet on a part-time basis. They do not generally employ the
mechanisms of extensive public hearings, markups, and staff review that
have characterized congressional action in the past. Further, large
volumes of state legislation are often passed in the waning hours of a
legislative session, with a flurry of last minute amendments, thus
25
increasing the possibility that legislation may be passed without a full
linguistic vetting.
4. Iowa caselaw regarding absurdity. Some of our cases invoke
the absurdity principle primarily as a tool of statutory interpretation.
See Mall Real Estate, L.L.C. v. City of Hamburg, 818 N.W.2d 190, 199
(Iowa 2012). The use of interpretive tools to determine which of a
number of textually plausible options the court should choose is not
really application of the absurdity doctrine, but represents a
conventional approach endorsed even by textualist opponents of the
absurdity doctrine. See John F. Manning, The Absurdity Doctrine, 116
Harv. L. Rev. 2387, 2419–20 & nn.122–23. A recent survey in the Drake
Law Review demonstrates that members of this court frequently look
beyond the text of the statute in the interpretation of statutes. Karen L.
Wallace, Does the Past Predict the Future?: An Empirical Analysis of
Recent Iowa Supreme Court Use of Legislative History as a Window into
Statutory Construction in Iowa, 63 Drake L. Rev. 239, 266–67 (2015)
(“The court has exhibited a willingness to consider a wide range of
sources that might help it interpret a statute consistent with legislative
intent.”).
As an apparent response to suggestions that we cannot use tools of
construction to depart from clear legislative text, we have sometimes
utilized a circular work-around in which we declare that if the statute
produces absurd results, it must be “ambiguous.” See Sherwin-Williams
Co. v. Iowa Dep’t of Revenue, 789 N.W.2d 417, 427 & n.8 (Iowa 2010).
But it is doubtful that a clear text is really transformed into an
ambiguous one solely based on the consequences of application. In
cases where we employ circular ambiguity, we are really applying the
true absurdity doctrine, namely, overriding the text of a statute to avoid
26
an intolerable result, just as the United States Supreme Court did in
Kirby, Holy Trinity, and Public Citizen, and just as many other state
courts have done over the decades.
A more straightforward description of the absurdity doctrine was
presented in Case v. Olsen, where we declared,
The court should give effect to the spirit of the law
rather than the letter, especially so where adherence to the
letter would result in absurdity, or injustice, or would lead to
contradiction, or would defeat the plain purpose of the act,
or where the provision was inserted through inadvertence.
234 Iowa 869, 873, 14 N.W.2d 717, 719 (1944). Kirby, Holy Trinity, and
Public Citizen utilize what one scholar has called “specific absurdity.”
See Linda D. Jellum, Why Specific Absurdity Undermines Textualism, 76
Brook. L. Rev. 917, 929 (2011). Specific absurdity is when the literal
terms of a broadly framed statue have been narrowed to avoid an absurd
result in specific instances. Id. at 928.
We have engaged in a specific absurdity analysis on a number of
occasions. For instance, in State v. Hoyman, we invoked the absurdity
doctrine to narrow the scope of a statute that criminalized fraudulent
practices in the context of public records. 863 N.W.2d 1, 14 (Iowa 2015).
The statutory language seemed to criminalize any knowingly incorrect
entry, regardless of significance and whether the maker intended to
deceive. Id. at 8. We concluded that when read literally, the scope of the
statute “would be breathtakingly broad.” Id. at 13. We thus interpreted
the term “false” in the statute to mean that the entry was made with
intent to deceive. Id. at 15. We thus used the absurdity doctrine to
narrow the scope of a criminal statute.
Similarly, in Bearinger v. Iowa Department of Transportation, we
considered whether a driver could invoke a prescription-drug defense
27
before an administrative tribunal seeking to revoke her driver’s license.
844 N.W.2d 104, 106 (2014). We noted that in criminal matters, the
legislature expressly provided for a prescription-drug defense. Id. at
107–08. Yet, a similar defense was not provided for in the administrative
process related to license revocation. Id. at 109. Under the driver’s
license revocation statute, revocation could occur when “any amount of a
controlled substance is present in the person.” Id. at 107 (quoting Iowa
Code § 321J.2(1)(c) (emphasis added)). In order to avoid absurd results,
we narrowed the scope of the term “any amount” to exclude amounts in
the body as a result of duly prescribed and ingested prescription drugs.
Id. at 110.
Finally, in Iowa Insurance Institute v. Core Group of Iowa
Association for Justice, we construed the term “all information” to exclude
work product, attorney work product, attorney–client, and other
privileged materials. 867 N.W.2d 58, 79 (2015). The literal terms of the
statute did not have any qualification. Id. at 69. We declared “all
information” to be ambiguous, but the language was plain enough. Id. at
73. We narrowed the statute to avoid untoward results. Id. at 76.
In this case, however, we are not asked to narrow the scope of a
statute, but to expand the scope beyond its plain meaning. This is the
scenario presented in King, 576 U.S. ___, 135 S. Ct. 2480. We have, on
occasion, expanded the meaning of a statute through interpretation in
order to avoid an absurd result. See Hutchison v. Shull, 878 N.W.2d 221,
233 (Iowa 2016) (favoring expansive interpretation of the term “meeting”
to promote underlying goals of statute); Mall Real Estate, 818 N.W.2d at
199 (applying expansive interpretation of the term “material” to achieve
statutory consistency). Nonetheless, it seems fair to say avoiding the
28
literal terms of a statute in order to extend the power of the state occurs
with less frequency than a narrowing construction.
We also seem to have recognized that statutes should not contain
the seeds of their own destruction. For instance, we have stated that
“when a literal interpretation of a statute results in absurd consequences
that undermine the clear purpose of the statute, an ambiguity arises.”
Sherwin-Williams, 789 N.W.2d at 427 n.8; see also State v. Hopkins, 465
N.W.2d 894, 896 (Iowa 1991) (noting we strive to arrive at a construction
that will best effectuate its purpose rather than defeat it); Crow v.
Shaeffer, 199 N.W.2d 45, 47 (Iowa 1972). In a similar vein, our older
cases have recognized what some have called the common law equity or
“spirit” of the statute. Case, 234 Iowa at 873, 14 N.W.2d at 719. Our
invocation of the spirit of the statute is usually in conjunction with a
finding that the statute is ambiguous. See id. at 872, 14 N.W.2d at 719.
We have also recognized narrow construction to avoid
constitutional problems. State v. McGuire, 200 N.W.2d 832, 833 (Iowa
1972); Carroll v. City of Cedar Falls, 221 Iowa 277, 283–84, 261 N.W.
652, 655–56 (1935). A possible unconstitutional result is a factor that
might tip statutory interpretation away from a literal reading of the
statute.
In the end, we find the teaching of Sherwin-Williams is consistent
with the vast majority of state and federal law and has continued vitality
today. In Sherwin-Williams, we noted that “the absurd results doctrine
should be used sparingly because it entails the risk that the judiciary
will displace legislative policy on the basis of speculation that the
legislature could not have meant what it unmistakably said.” 789
N.W.2d at 427 (quoting 2A Statutory Construction § 45:12, at 105–07
29
(7th ed. 2007)). Yet, in Sherwin-Williams, we also cited with approval a
Hawaii case which states,
[E]ven in the absence of statutory ambiguity,
departure from literal construction is justified when such
construction would produce an absurd and unjust result
and the literal construction in the particular action is clearly
inconsistent with the purposes and policies of the act.
Id. (alteration in original) (quoting Pac. Ins., 490 P.2d at 901).
The bottom line is that the absurdity doctrine is well established in
Iowa and elsewhere, though not always clearly articulated. It can be
utilized, in rare cases, to overcome the plain meaning of the words of a
statute. The doctrine, however, must be used sparingly and only in
circumstances when the court is confident the legislature did not intend
the result required by literal application of the statutory terms.
5. Discussion of applying the absurdity doctrine in this case. In
light of these cases, we now turn to considering the meaning of Iowa
Code section 484C.12. It expressly authorizes the DNR to engage in
quarantine of “diseased preserve whitetail.” Iowa Code § 484C.12. There
does not seem to be a lot of ambiguity here. The quarantine applies only
if three requirements are present: diseased, preserve, and whitetail. Id.
It would be a blue-is-red-type of interpretation to claim that the statute
applies to nondiseased whitetail. And, the quarantine applies to
whitetail, not to land.
We could, perhaps, escape the plain meaning of the words through
an application of the absurdity principle. That is the fighting issue in
this case. The DNR seeks through the absurdity doctrine to broaden
inclusion of coverage. It is then akin to King, 576 U.S. at ___, 135 S. Ct.
at 2496. The DNR seeks to release itself from the verbal chains of the
30
statute to achieve what it views as a better, more thorough, and more
comprehensive result.
But we do not see absurdity here. Indeed, it is not uncommon that
the legislative process results in half measures. Further, the plain
meaning of the statute, namely that quarantine applies only to “diseased
preserve whitetail,” is not absurd. The DNR itself admits that a
quarantine of the diseased animals is one step in a program of control of
CWD. The record in this case established that CWD is of great concern
in the game-hunting community, but there seems to be no clear
consensus about the efficacy of various eradication efforts. After
reviewing the record in this case, one does not emerge thinking, “Oh my
gosh, that can’t be!” when considering the plain legislative language.
The linguistic focus in the Iowa statute on the animals rather than
the land is found in other CWD regulatory regimes. For example, Illinois
law authorizes a quarantine of a CWD-infected herd until
either the herd has been depopulated or there has been no
evidence of CWD in the herd for five years from the date of
the last case, and all animals that have died, been
euthanized or been slaughtered in the herd during that
period were examined for CWD.
Ill. Admin. Code tit. 8, § 85.120(e)(2) (Westlaw current through Ill. Reg.
vol. 41, issue 21). There is no provision for quarantine after the herd has
been depopulated.
We further note that at the time Iowa Code chapter 484C was
enacted, there were other legislative models that distinguished between
quarantine of animals and quarantine of land. For example, the North
Carolina statute expressly authorizes the quarantine of exposed animals
and affected premises within the state. N.C. Gen. Stat. § 106-401 (West,
Westlaw current through S.L. 2017-17 of the 2017 Reg. Sess.). Section
31
(a) of the statute authorizes the state veterinarian to “quarantine any
animal affected with or exposed to a contagious disease.” Id. § 106-
401(a). Under this provision, the quarantine remains in effect “until any
sick or diseased animal has been properly disposed of and the premises
have been properly cleaned and disinfected.” Id. Section (b) authorizes
the state veterinarian, in consultation with the commissioner of
agriculture and with approval of the governor, to quarantine “areas
within the State.” Id. § 106-401(b); see Andrew H. Nelson, High Stakes:
Defending North Carolina’s Response to Contagious Animal Diseases, 83
N.C. L. Rev. 238, 263–71 (2004). Further, a survey of administrative
regulations related to CWD for cervids shows that some do not expressly
authorize quarantines, some authorize quarantines but only of herds,
and some authorize quarantines of both herds and premises. See, e.g.,
Ariz. Admin. Code § R3-2-405 (Westlaw current through Ariz. Admin.
Reg. vol. 23, issue (7)) (providing for depopulation of animals exposed to
CWD but no mention of a quarantine); Kan. Admin. Regs. 9-3-17(a)
(Westlaw current through Vol. 36, No. 17, Apr. 27, 2017) (authorizing a
“herd quarantine”); 2-4 Vt. Code R. § 316:XI (Westlaw current through
May 2017) (providing for a quarantine of herd and premises). We decline
to write a passage related to quarantine of the premises into the Iowa
law, which authorizes only the quarantine of animals. See Iowa Code
§ 484C.12.
The fact that more might have been done does not make the grant
of limited authority the legislature gave to the DNR absurd. Our task is
to interpret the statute, not improve it. See Wells Fargo Bank v. Super.
Ct., 811 P.2d 1025, 1034 (Cal. 1991) (en banc); In re Matthew D., 880
N.W.2d 107, 114 (Wis. 2016). Indeed, while more might need to be done
in a specific case, the legislature may well have relied on Iowa Code
32
section 484C.12(2), which requires the landowner, or the landowner’s
veterinarian, and a DNR epidemiologist to develop a plan for eradicating
the disease among the preserve whitetail population. This provision
suggests a reliance on mutual agreement on a case-by-case basis for
further remedies, rather than the expansive government quarantine
authority suggested by the DNR.
We also observe some of the features that may tend to support
application of the absurdity doctrine are not present in this case. We
note that the DNR asks us to expand, rather than retract, government
power. While we have on occasion done so in the past under the
absurdity doctrine, we think it is a more difficult argument to make than
when a statute is narrowed. If the legislature wants to assert new
regulatory powers over private landowners, it should do so expressly.
Further, to the extent there are constitutional issues at stake here, they
cut against a broad interpretation of the statute in light of the property
interests of deer farmers.
F. Conclusion. We therefore conclude that Iowa Code section
484C.12 should be read according to its ordinary meaning. The
consequence of this interpretation is that the agency lacked the statutory
authority to promulgate the administrative rule expanding the scope of
quarantines to include fencing of lands for a five-year period when all
diseased preserve wildlife have been eradicated. As a result, the agency
was without authority to issue the emergency order in this case. 4 If the
4Like the district court, we decline to consider whether the DNR or NRC is
entitled to deference in the interpretation of the statute under Renda, 784 N.W.2d at
11–14. Even if deference were afforded, we would nonetheless rule the DNR was
without authority to issue the emergency order in this case.
33
legislature wishes to expand quarantine powers as suggested by the DNR
rule, it is, of course, free to do so.
IV. Taking Under the Due Process Clauses of the United States
or Iowa Constitutions.
A. Introduction. Under both the United States and Iowa
Constitutions, the government is required to pay just compensation
when it “takes” private property for public use. U.S. Const. amend. V;
Iowa Const. art. I, § 18. The overarching purpose of the Takings Clause
of the United States Constitution is “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.” Yancey v. United
States, 915 F.2d 1534, 1539 (Fed. Cir. 1990) (quoting Armstrong v.
United States, 364 U.S. 40, 49, 80 S. Ct. 1563, 1569 (1960)).
The United States Supreme Court has recognized two different
types of takings. The first type involves direct government seizure of
property that amounts to “a practical ouster of [the owner’s] possession.”
Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 537, 125 S. Ct. 2074, 2081
(2005) (alteration in original) (quoting Lucas v. S. Carolina Coastal
Council, 505 U.S. 1003, 1014, 112 S. Ct. 2886, 2892 (1992)). The
Supreme Court, however, has recognized a second kind of taking which
occurs as a result of government regulation which becomes sufficiently
onerous that “its effect is tantamount to a direct appropriation or
ouster.” Id.
In their cross-appeal in this case, the Brakkes assert the district
court erred in not finding the emergency order amounted to a regulatory
taking under the United States and Iowa Constitutions that entitled them
to just compensation.
34
B. Constitutional Provisions. The Takings Clause of the Fifth
Amendment of the United States Constitution provides that “private
property shall not be taken for public use, without just compensation.”
U.S. Const. amend. V. Article I, section 18 of the Iowa Constitution
provides that “[p]rivate property shall not be taken for public use without
just compensation first being made, or secured to be made to the owner
thereof, as soon as the damages shall be assessed by a jury.” Iowa
Const. art. I, § 18.
The Brakkes do not assert that the standard on takings under the
Iowa Constitution is different than that under the federal takings
constitutional counterpart. We therefore apply the established federal
standards regarding takings, but reserve the right to apply these
standards in a fashion different than the federal courts. State v. Kooima,
833 N.W.2d 202, 206 (Iowa 2013); Racing Ass’n of Cent. Iowa v.
Fitzgerald, 675 N.W.2d 1, 5 (Iowa 2004).
C. Positions of the Parties. Citing federal caselaw, the Brakkes
point out that regulatory takings occur when the government (1) requires
the owner to suffer a permanent physical invasion, no matter how minor;
(2) completely deprives the owner of all economically beneficial use of her
property; or (3) without sufficient justification requires an owner to
dedicate a portion of property in exchange for a building permit. See
Lingle, 544 U.S. at 538, 125 S. Ct. at 2081 (describing the first two types
of takings as “per se regulatory takings”); Dolan v. City of Tigard, 512
U.S. 374, 388, 114 S. Ct. 2309, 2318 (1994) (involving permit conditions
imposed on property owner). A taking may also occur when the
balancing factors of Penn Central Transportation Co. v. City of New York
indicate a taking has occurred. 438 U.S. 104, 124, 98 S. Ct. 2646, 2659
(1978). The factors to be balanced under the familiar Penn Central test
35
are (1) the economic impact of the regulation on the claimant, (2) the
extent to which the regulation interfered with distinct investment-backed
expectations, and (3) the character of the government action. Id.
The Brakkes argue the emergency order was a per se regulatory
taking because the order required the Brakkes to maintain both the
fence and the gates at Pine Ridge. In support of their argument, the
Brakkes cite Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.
419, 102 S. Ct. 3164 (1982). In Loretto, a landlord was forced to allow a
cable television company to install cable and connection boxes on her
property. Id. at 421–22, 102 S. Ct. at 3168–69. The United States
Supreme Court found a permanent physical occupation of real property
that amounted to compensable taking. Id. at 438, 102 S. Ct. at 3177. In
addition to the requirement to maintain the fence and gate, the Brakkes
note the emergency order authorized the DNR to physically invade their
property to kill wild deer. Further, the Brakkes observe that any future
operational plan would necessarily prohibit the Brakkes from excluding
DNR personnel and property. These physical invasions, according to the
Brakkes, are takings that entitle them to just compensation.
The Brakkes recognize the DNR’s physical invasions are not
permanent. Nonetheless, the Brakkes point to two World War II era
cases where the government’s condemnation of company premises
amounted to compensable takings despite the temporary nature.
Kimball Laundry Co. v. United States, 338 U.S. 1, 7, 69 S. Ct. 1434, 1438
(1949); United States v. Petty Motor Co., 327 U.S. 372, 375–76, 66 S. Ct.
596, 598–99 (1946). The Brakkes cite a recent case, Arkansas Game &
Fish Commission v. United States, which suggests that government-
induced flooding may be compensable. 568 U.S. 23, 34, 133 S. Ct. 511,
519–20 (2012).
36
The Brakkes also argue that the emergency order is a regulatory
taking because it is the functional equivalent of ousting the Brakkes from
their property for a five-year period, or at least as long as the emergency
order is in place. According to the Brakkes, the emergency order hollows
out its right to “possess, use and dispose” of their property. Loretto, 458
U.S. 419, 435, 102 S. Ct. at 3176. The Brakkes repeat that the
emergency order forces them to maintain the fence, precludes them from
conducting hunting on the property, and requires them to submit an
operational plan that will effectively permit the DNR to control all
activities at all times during the five-year quarantine. According to the
Brakkes, they cannot sell their property to escape the tentacles of the
DNR because the DNR restrictions will scare away potential buyers.
Next, the Brakkes argue the emergency order qualifies as a taking
because it strips the property of all economically beneficial use. The
Brakkes point to Lucas, in which the Supreme Court stated that a
property owner called upon “to sacrifice all economically beneficial uses
in the name of the common good, that is, to leave his property
economically idle, . . . has suffered a taking.” 505 U.S. at 1019, 112
S. Ct. at 2895. According to the Brakkes, the record in this case
demonstrates there is no other use of the land other than as a hunting
preserve, which the DNR order prohibits.
Finally, and because it satisfies the Penn Central test, the Brakkes
assert the economic impact of the emergency order has been extensive,
the regulation has interfered with their investment-based expectations,
and the order was a product of political considerations and not the law.
See 438 U.S. at 124, 98 S. Ct. at 2659. According to the Brakkes, the
district court erred by declining to find a taking under Penn Central.
37
The DNR focuses its response on the question of whether a
compensable taking occurred. With respect to the per se regulatory
takings, the DNR asserts the record did not establish a permanent
physical invasion and did not deprive the Brakkes of all economic
benefit.
On the question of permanent physical invasion, the DNR
emphasizes a parade of federal caselaw that stress physical invasions
must be permanent, and not temporary, to be per se compensable under
the Takings Clause. In particular, the DNR notes that in Loretto, the
United States Supreme Court expressly distinguished between
permanent and temporary invasions and held that a per se taking was
present only when an invasion was permanent. 458 U.S. at 432–35, 102
S. Ct. at 3174–75. The DNR recognizes that the World War II era cases
of Kimball and Petty Motor allow for compensation for temporary takings,
but the DNR suggests that later caselaw has clarified that in order to be
a per se taking under current doctrine, the taking must be permanent.
Loretto, 458 U.S. at 435, 102 S. Ct. at 3175.
The DNR next addresses the question of whether the emergency
order amounted to a per se taking because it deprived the Brakkes of all
productive use of the hunting preserve. Citing Tahoe-Sierra Preservation
Council, Inc. v. Tahoe Regional Planning Agency, the DNR asserts that in
order to be a per se taking under this theory, the government action
must deprive the property owner of “all economically beneficial use.” 535
U.S. 302, 319, 122 S. Ct. 1465, 1477 (2002). In Tahoe-Sierra, the
Supreme Court held that a moratorium on development of property for
thirty-two months did not create a per se taking. Id. at 306, 321, 122
S. Ct. at 1470, 1478. DNR argues that Tahoe-Sierra recognizes that
anything less than a complete elimination of value or total loss must be
38
analyzed under Penn Central and cannot be treated as per se takings.
See id. at 321, 122 S. Ct. at 1478. The DNR notes that according to the
United States Supreme Court, such a finding that “all economically
beneficial use[]” has been eliminated as a result of government action is
“relatively rare.” Lucas, 505 U.S. at 1018, 112 S. Ct. at 2894.
The DNR argues that the Brakkes fail to show a deprivation of “all
economically beneficial use” for two reasons. First, the DNR notes that a
temporary taking is insufficient. In addition, the DNR points out that
even on a temporary basis, the Brakkes have not been deprived of all
economic interests, as the property can still be used for noncervid
species, fishing, row crops, hay ground, timber harvest, bed and
breakfast, or cattle pasture, among other uses. The DNR also points to
an appraisal, which indicated the value of the Brakkes’ property due to
the DNR’s regulatory effort fell from $1,056,000 to $891,000.
Having argued that the Brakkes failed to show a per se taking, the
DNR turns to the question of whether the emergency order amounted to
a regulatory taking under Penn Central. The DNR asserts that under the
first Penn Central factor, the Brakkes failed to show the economic impact
of the emergency order weighed in favor of finding a taking. The DNR
stresses the relatively small diminution in the value of the property and
the fact the diminution in value will abate as the end of the quarantine
period approaches. According to the DNR, in order for the economic
impact to weigh in favor of a taking, the diminution in value has to be
much greater, at least by fifty percent or more. See CCA Assocs. v.
United States, 667 F.3d 1239, 1246 (Fed. Cir. 2011) (stating it was
“aware of no case in which a court has found a taking where diminution
in value was less than 50 percent”). To the extent the Brakkes claimed
lost profits was the proper measure of economic impact, the DNR cited
39
cases standing for the proposition that consequential damages are not
recoverable in takings cases and thus should not be the standard for
determining if a taking occurred. See, e.g., Kurth v. Iowa Dep’t of
Transp., 628 N.W.2d 1, 6–7 (Iowa 2001).
Under the second Penn Central factor, the DNR suggests that
investment-backed expectations do not weigh in favor of a taking. The
DNR argues the Brakkes knew that hunting reserves were subject to
regulation. The DNR notes that for purposes of considering investment-
backed expectation, the test is not whether a specific government
regulation existed at the time of investment, but “[t]he critical question is
whether extension of existing law could be foreseen as reasonably
possible.” Cienega Gardens v. United States, 503 F.3d 1266, 1288–89
(Fed. Cir. 2007) (quoting Commw. Edison Co. v. United States, 271 F.3d
1327, 1357 (Fed. Cir. 2001) (en banc)).
On the last Penn Central factor, the DNR argues that the character
of the government action does not weigh in favor of a taking. The DNR
points out that the Brakkes maintained possession of their property and
maintained the right to possess, lease, or sell the property. The DNR
points to the beneficent purpose of the regulation, namely, to prevent the
spread of CWD. Finally, the DNR argues the duration of the quarantine
was relatively brief and the diminution in the property value was modest.
D. Discussion.
1. Overview of regulatory takings theories. The classic government
taking requiring compensation is a direct appropriation of physical
property, “or the functional equivalent of ‘a practical ouster of [the
owner’s] possession.’ ” Lucas, 505 U.S. at 1014, 112 S. Ct. at 2892
(alteration in original) (quoting Transp. Co. v. Chicago, 99 U.S. 635, 642
(1878)). A regulatory taking, on the other hand, occurs when a
40
regulation becomes so burdensome that its effect is “tantamount to a
direct appropriation or ouster.” Lingle, 544 U.S. at 537, 125 S. Ct. at
2081; Penn. Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S. Ct. 158, 160
(1922) (recognizing regulatory takings for the first time); see also Easter
Lake Estates, Inc. v. Polk County, 444 N.W.2d 72, 75 (Iowa 1989)
(“[G]overnment action that substantially deprives a person of the use of
property, in whole or in part, may be a compensable taking.”). This case
focuses solely on regulatory takings.
As can be seen by the positions of the parties, there are three types
of regulatory takings at play: (1) a per se taking arising from a permanent
physical invasion of property, (2) a per se taking arising from regulation
that denies the owner all economically beneficial ownership, and (3) a
regulatory taking based on the balancing of the three Penn Central
factors. Bormann v. Bd. of Supervisors, 584 N.W.2d 309, 316 (Iowa
1998); see Craig A. Peterson, Land Use Regulatory ‘Takings’ Revisited:
The New Supreme Court Approaches, 39 Hastings L.J. 335, 336–39
(1988) (sketching the development of the Court’s regulatory takings
caselaw since Penn Central).
2. Merits of a per se takings claim involving “physical invasions of
property” or deprivation of “all economically beneficial or productive use of
land.” We begin with a review of the takings law involving physical
invasions by government regulation. A key case is Loretto, 458 U.S. 419,
102 S. Ct. 3164. In Loretto, the owner of a New York City apartment
building challenged a New York law requiring that landlords not interfere
with the installation of cable television facilities on their premises, not
demand payments from tenants for permitting cable television, and not
demand payment from a cable television company in excess of an
amount set by regulation. Id. at 423, 102 S. Ct. at 3169. The Loretto
41
Court noted that lower courts had found the law served a legitimate
public purpose, but held that when there is a “permanent physical
occupation authorized by government,” the action is a taking whether or
not it serves the public interest. Id. at 425–26, 102 S. Ct. at 3170–71.
The Loretto Court turned to the question of whether there was a
permanent physical invasion under the facts presented. Id. at 438, 102
S. Ct. at 3177. The Court noted that landlords suffered a permanent
physical occupation in the form of the plates, boxes, wires, and bolts that
affix the cable television installment to the roof of the building. Id. Such
a permanent installation on the landlord’s property was, therefore, a
taking. Id. at 438, 102 S. Ct. at 3178.
The concept that a regulation that deprived a property owner “of all
economically beneficial or productive use” amounted to a per se taking
was explored in Lucas, 505 U.S. at 1015, 112 S. Ct. at 2893. In Lucas, a
land developer purchased coastal property intending to develop single-
family residences. Id. at 1008, 112 S. Ct. at 2889. A coastal council,
however, prohibited construction of any habitable improvements on the
property. Id. The land developer sought compensation, arguing the
regulation, though enacted pursuant to a valid law, was a taking because
it denied him all economically beneficial or productive use of the land.
Id. at 1009, 112 S. Ct. at 2890.
The Lucas Court recognized that a compensable taking occurs
when a regulation “denies an owner of all economically viable use of his
land.” Id. at 1016, 112 S. Ct. at 2894 (quoting Agins v. City of Tiburon,
447 U.S. 255, 260, 100 S. Ct. 2138, 2141 (1980), abrogated on other
grounds by Lingle, 544 U.S. at 545, 125 S. Ct. at 2087). This position is
justified, the Court explained, because from a landowner’s point of view,
being totally deprived of all of the beneficial use of the land is the
42
equivalent of a physical appropriation. Id. at 1017, 112 S. Ct. at 2894.
While the government must be allowed to affect property values by
regulation without compensation, the Court recognized that takings
could occur under “the relatively rare situations where the government
had deprived a landowner of all economically beneficial uses.” Id. at
1018, 112 S. Ct. at 2894.
The Supreme Court considered the question of whether a
temporary taking that for a period of time deprived the owner of all
economic benefit could be a per se taking. In First English Evangelical
Lutheran Church of Glendale v. County of Los Angeles, the Supreme Court
held for the first time that a landowner could recover damages for the
temporary period during which a land-use regulation was effective. 482
U.S. 304, 322, 107 S. Ct. 2378, 2389 (1987).
In First English, the appellant church’s campground was flooded
and its buildings destroyed. 482 U.S. at 307, 107 S. Ct. at 2381. In
response to the flood, the county adopted an interim ordinance that
prohibited the construction or reconstruction of any building in an
interim flood protection area, which included the campground. Id. at
307, 107 S. Ct. at 2381–82. There is no indication in the opinion of the
stated duration of the “interim ordinance,” if the ordinance in fact
included a duration. Id. at 307, 107 S. Ct. at 2382.
The church brought a claim in California state court, arguing that
the ordinance denied the church of all use of the campground and asking
for just compensation. Id. at 308, 107 S. Ct. at 2382. The California
courts rejected the claim under California precedent, which established
the only remedy for an ordinance that deprived a landowner of the total
use of their lands was declaratory relief or mandamus. Id. at 309, 107
S. Ct. at 2382. This California precedent held that compensation was
43
only available if a landowner had sought declaratory relief, the ordinance
was held excessive, and the government persisted in enforcing the
regulation. Id. The church appealed to the United States Supreme
Court, arguing that temporary regulatory takings require just
compensation under the Fifth Amendment. Id. at 310, 107 S. Ct. at
2383.
After a lengthy analysis of prior precedent, the Supreme Court
found that where takings deny landowners all use of property, there is no
real difference between temporary takings and permanent takings. Id. at
318, 107 S. Ct. at 2388 (“ ‘[T]emporary’ takings which, as here, deny a
landowner all use of his property, are not different in kind from
permanent takings, for which the Constitution clearly requires
compensation.”); see also San Diego Gas & Elec. Co. v. City of San Diego,
450 U.S. 621, 657, 101 S. Ct. 1287, 1307 (1981) (Brennan, J.,
dissenting) (“Nothing in the Just Compensation Clause suggests that
‘takings’ must be permanent and irrevocable.”).
The First English Court emphasized that its decision was limited to
ordinances that deny the property owner all use of their property and not
“normal delays in obtaining building permits, changes in zoning
ordinances, variances, and the like which are not before us.” 482 U.S. at
321, 107 S. Ct. at 2389. Additionally, the Court explained, once a
determination has been made that a taking has occurred, the
government retains the ability to choose to amend the regulation,
withdraw the regulation, or exercise eminent domain. Id. But when the
government has already taken all use of a property, it has a duty to
provide compensation for the period during which the taking was
effective. Id.
44
While First English seems to stand for the proposition that
temporary government actions that eliminate all economically viable use
of the property are subject to a Fifth Amendment per se taking analysis,
the Court significantly narrowed the holding of First English in Tahoe-
Sierra, 535 U.S. at 328–29, 122 S. Ct. at 1482. In Tahoe-Sierra, the
Supreme Court considered a landowners group’s challenge to a two-year,
eight-month moratorium on new development around Lake Tahoe. Id. at
306, 122 S. Ct. at 1470. These moratoria were enacted so that land-use
planners could develop a plan to preserve the lake while allowing new
development. Id. at 310–11, 122 S. Ct. at 1472–73. The landowners
claimed the moratoria were both per se takings and takings under the
multifactored Penn Central approach. Id. at 314–15, 122 S. Ct. at 1474–
75.
The district court had concluded the Penn Central factors were not
met, but that under First English, 482 U.S. 304, 107 S. Ct. 2378, and
Lucas, 505 U.S. 1003, 112 S. Ct. 2886, the landowners were entitled to
compensation for the thirty-two months of the moratoria because they
were temporarily deprived of all economically viable use of their land.
Tahoe-Sierra, 535 U.S. at 316–17, 122 S. Ct. at 1475–76. When the
parties appealed and cross-appealed, the landowners did not appeal the
Penn Central issue. Id. at 317, 122 S. Ct. at 1476.
The Tahoe-Sierra Court rejected a categorical, per se rule that
temporary deprivations of all viable economic uses of the land necessarily
gives rise to a takings claim. Id. at 321, 122 S. Ct. at 1478. Instead, the
Court stated temporary deprivations of use of property must be analyzed
under the fact-specific Penn Central framework. Id. The Tahoe-Sierra
Court distinguished First English by emphasizing that the issue in First
English was not whether a taking had occurred, but only whether
45
compensation was required because the taking was temporary. Id. at
328, 122 S. Ct. at 1482; see First English, 482 U.S. at 321, 107 S. Ct. at
2389 (“We merely hold that where the government’s activities have
already worked a taking . . . .”). As a result, the Tahoe-Sierra Court
stated First English did not stand for the proposition that a taking had
occurred. 535 U.S. at 328, 122 S. Ct. at 1482. The Court also
emphasized that Lucas did not support the petitioners because the
statute in Lucas eliminating all value of the land was “unconditional and
permanent,” not temporary. Id. at 329, 122 S. Ct. at 1483 (quoting
Lucas, 505 U.S. at 1012, 112 S. Ct. at 2891).
Based on the above authorities, we conclude the Brakkes have
failed to establish a per se regulatory taking based on either a physical-
invasion theory or an all economic-benefit theory. While the World War
II vintage cases, buttressed by First English, might imply or suggest that
a per se taking can arise from temporary takings, the more recent case of
Tahoe-Sierra holds that temporary takings are not per se violations but
are instead analyzed under the multifactor Penn Central test. Id. at 321,
122 S. Ct. at 1478. We therefore reject the Brakkes’ per se takings claim
and proceed to consider whether the Brakkes have a takings claim under
the Penn Central test.
3. Merits of a takings claim under a multifactored Penn Central
balancing test. Penn Central involved the application of New York City’s
landmark preservation law to the Grand Central Terminal. 438 U.S. at
115, 98 S. Ct. at 2654. Under the law, the owner of a piece of property
designated as a landmark was required to maintain the building in a
good state of repair and was prevented from altering the exterior of the
building absent the approval of the Landmarks Preservation
Commission. Id. at 111–12, 98 S. Ct. at 2653.
46
The Penn Central Court, in summarizing its Fifth Amendment
jurisprudence, emphasized there is no “set formula” for determining
when concerns of “justice and fairness” require a private property owner
to be compensated for economic injuries caused by a public action. Id.
at 124, 98 S. Ct. at 2659 (quoting Goldblatt v. Hempstead, 369 U.S. 590,
594, 82 S. Ct. 987, 990 (1962)). The Court emphasized that whether the
government is required to pay just compensation depends “upon the
particular circumstances [in that] case.” Id. (alteration in original)
(quoting United States v. Cent. Eureka Mining Co., 357 U.S. 155, 168, 78
S. Ct. 1097, 1104 (1958)). According to the Court, the inquiry is ad hoc
and fact specific. Id.
Nevertheless, the Penn Central Court identified several factors of
“particular significance.” Id.
The economic impact of the regulation on the claimant
and, particularly, the extent to which the regulation has
interfered with distinct investment-backed expectations are,
of course, relevant considerations. So, too, is the character
of the government action. A “taking” may more readily be
found when the interference with property can be
characterized as a physical invasion by government, than
when interference arises from some public program
adjusting the benefits and burdens of economic life to
promote the common good.
Id. (citations omitted); accord Fitzgarrald v. City of Iowa City, 492 N.W.2d
659, 663 (Iowa 1992); Iowa-Ill. Gas & Elec. Co. v. Iowa State Commerce
Comm’n, 412 N.W.2d 600, 607 (Iowa 1987). Even when a regulation
furthers important public policies, it may nevertheless “so frustrate
distinct investment-backed expectations as to amount to a taking.” Penn
Cent., 438 U.S. at 127, 98 S. Ct. at 2661; see Penn. Coal, 260 U.S. at
415, 43 S. Ct. at 160. A taking may be found if the regulation destroys
the “primary expectation” of the owners of and investors in the parcel.
Penn Cent., 438 U.S. at 136, 98 S. Ct. at 2665; see also Kasparek v.
47
Johnson Cty. Bd. of Health, 288 N.W.2d 511, 518 (Iowa 1980)
(emphasizing this element of Penn Central).
In Kaiser Aetna v. United States, the Court summarized the Penn
Central factors as “the economic impact of the regulation, its interference
with reasonable investment backed expectations, and the character of
the government action.” 444 U.S. 164, 175, 100 S. Ct. 383, 390 (1979);
accord Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 224–25,
106 S. Ct. 1018, 1026 (1986). Kaiser Aetna and its progeny have given
rise to descriptions of Penn Central as involving a three-part balancing
test. See Adam R. Pomeroy, Penn Central After 35 Years: A Three Part
Balancing Test or a One Strike Rule?, 22 Fed. Cir. B.J. 677, 677 (2013).
We, however, have generally considered the Penn Central test to be
a two-part test, merging the first two factors described in Kaiser Aetna—
(1) “ ‘[t]he economic impact of the regulation on the claimant
and, particularly, the extent to which the regulation has
interfered with distinct investment-backed expectations[,]’ ”
and (2) “the ‘character of the government action’—for
instance whether it amounts to a physical invasion or
instead merely affects property interests through ‘some
public program adjusting the benefits and burdens of
economic life to promote the common good.’ ”
Harms, 702 N.W.2d at 98 (alteration in original) (quoting Lingle, 544 U.S.
at 539, 125 S. Ct. at 2082).
We now turn to apply the Penn Central test to the case before us.
There is no doubt there has been an economic impact from the
emergency order in this case. But the value of the land, as testified to by
the DNR’s expert, has declined only 16.4%, generally not enough to
weigh heavily in support of finding a taking. See CCA Assocs., 667 F.3d
at 1246. Although the land cannot be used as a hunting preserve, it had
value and other uses prior to becoming a hunting preserve and has value
and other uses during the quarantine period.
48
While there is little doubt the Brakkes may have lost profits, the
yardstick in a takings case is ordinarily lost value of the property taken.
See Rose Acre Farms, Inc. v. United States, 559 F.3d 1260, 1268 (Fed.
Cir. 2009). We have held that consequential damages are not
recoverable in takings cases. Kurth, 628 N.W.2d at 6–7. We have further
stated that “the profits of a business are too uncertain, and depend upon
too many contingencies to safely be accepted as any evidence of the
usable value of the property upon which the business is carried on.”
Wilson v. Iowa State Highway Comm’n, 249 Iowa 994, 1006, 90 N.W.2d
161, 169 (Iowa 1958). We conclude that claims of lost profits may be
considered only as a factor in determining the lost value of the land
which has allegedly been taken. See Rose Acre, 559 F.3d at 1272.
Based on the evidence, we find the economic harm simply does not
weigh in favor of a taking under Penn Central. The Penn Central
approach is designed to give government authorities fairly wide berth in
the regulation in the public interest. See 438 U.S. at 144–45, 98 S. Ct.
at 2669–70. The applicable caselaw does not support the Brakkes’
assertion that the economic impact of the regulation on the Brakkes cuts
in favor of the finding of a taking.
We now turn to the question of whether the DNR’s action interfered
with distinct investment-backed expectations. The investment-backed
expectations test is an objective one. Ciegna Gardens, 331 F.3d at 1346.
The Brakkes were in the business of operating a hunting preserve. A
reasonable investor would be aware that hunting preserves are subject to
state regulation, including regulation related to CWD. See Iowa Code ch.
484C; see also Hawkeye Commodity Promotions, Inc. v. Vilsack, 486 F.3d
430, 442 (8th Cir. 2007) (holding that investment-backed expectations
did not weigh in favor of a taking in heavily regulated gambling industry).
49
Further, a reasonable investor would understand the presence of
CWD in a hunting preserve could give rise to aggressive government
action to curtail the spread of the disease. Notably, in Kafka v. Montana
Department of Fish, Wildlife, and Parks, the Supreme Court of Montana
noted that in considering investment-backed expectations in the context
of a takings claim, “the regulated and speculative nature of a particular
industry should be considered in determining whether investment-
backed expectations are reasonable.” 201 P.3d 8, 31 (Mont. 2008). The
Kafka court concluded “appellants should have reasonably anticipated
that the Game Farm industry might be phased out due to health and
safety-related concerns over CWD.” Id. at 32; see also Buhmann v. State,
201 P.3d 70, 94 (Mont. 2008) (noting dangers of CWD to deer and elk
population were “publicly known and very controversial among many
members of the public”); see generally Ronald W. Opsahl, Chronic
Wasting Disease of Deer and Elk, A Call for National Action, 33 Envtl. L.
1059, 1061–62 (2003) (providing history of CWD including endemic
presence in northeastern Colorado, southeastern Wyoming, and western
Nebraska and presence in a number of other states).
As a result, we do not conclude the investment-backed
expectations have been dramatically upset here. One of the downsides of
entering a regulated field is that more intense regulation, particularly
when threatening diseases are involved, may be in the offing. When
diseases threaten industries, it is reasonable to expect that government
may be awakened from its regulatory slumber.
Finally, we consider, as Penn Central directs, the character of
government action. The purpose and importance of the government
action are relevant under this Penn Central factor. See Rose Acre, 559
F.3d at 1283. Here, the purpose of the government action was to protect
50
wildlife in Iowa from a potentially contagious disease by imposing a
quarantine on land where the diseased deer had been present. There is
no doubt the Brakkes felt the brunt of the government’s action. Yet there
is nothing in the record to suggest the Brakkes were arbitrarily singled
out for special treatment.
Further, the testimony at the hearing indicated the action taken by
the government was not substantially out of proportion to the purpose
and importance behind the regulatory regime. Any physical invasion of
the land was minimal. In light of all the facts and circumstances, the
government has not taken “regulatory actions that are functionally
equivalent to the classic taking in which government directly
appropriates private property or outs the owner from his domain.”
Lingle, 544 U.S. at 539, 125 S. Ct. at 2082.
VI. Conclusion.
For the above reasons, we affirm the judgment of the district court.
AFFIRMED.
All justices concur except Mansfield and Waterman, JJ., who
concur in part and dissent in part.
51
#15–0328, Brakke v. Iowa DNR
MANSFIELD, Justice (concurring in part and dissenting in part).
I respectfully dissent with respect to Part III of the court’s opinion.
I believe the court is taking an overly technical view of the underlying
statutory authority provided to the Iowa Department of Natural
Resources (DNR).
I do not share the majority’s view that the statute is clear and
unambiguous. We read statutes as a whole. See In re Estate of Gantner,
893 N.W.2d 896, 902 (Iowa 2017). Iowa Code section 484C.12(1) (2013)
says the DNR “may provide for the quarantine of diseased preserve
whitetail that threaten the health of animal populations.” Yet the next
subsection, 484C.12(2), states “[t]he landowner, or the landowner’s
veterinarian, and an epidemiologist designated by [DNR] shall develop a
plan,” which “shall be designed to reduce and then eliminate the
reportable disease, and to prevent the spread of the disease to other
animals.” Iowa Code § 484C.12(2). Both subsections need to be read
together.
If we read subsection 1 as limiting DNR’s authority strictly to the
diseased deer themselves, we cannot account for subsection 2, which
gives the DNR broader authority over a “landowner” to implement a plan
to “eliminate the reportable disease” and prevent its spread “to other
animals.” When we interpret a statute, we try to harmonize its parts.
Iowa Individual Health Benefit Reins. Ass’n v. State Univ. of Iowa, 876
N.W.2d 800, 805 (Iowa 2016). Doing so here, I would conclude that the
term “quarantine” gives DNR authority to do what medical science would
regard as a reasonable quarantine in response to the outbreak of
disease, which may include measures that affect the land as well as the
animals.
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The majority’s hypertechnical interpretation of the statute proves
too much. Note that the statute says “quarantine of diseased preserve
whitetail,” not “quarantine of whitetail that may have been exposed to the
disease.” Thus, under the majority’s view, DNR could only take action
with respect to deer that currently have the disease, not to other deer on
the farm that have been exposed to the disease. That is not all. Under
the majority’s view, DNR could not require the landowner to disinfect
areas of the farm where the diseased deer have been recently.
Furthermore, once the diseased deer have died and their carcasses have
been removed, DNR would be without authority altogether. If the
majority is right, DNR’s authority would be limited strictly to the sick
animals themselves and nothing else. 5
Although I do not think we need to reach the absurd-results
doctrine in light of the ambiguity of section 484C.12 taken as a whole,
the majority’s reading of the statute is indeed absurd. If a hospital has
authority to “quarantine” a patient, does that mean it can’t keep people
out of the patient’s room when the patient is not there? Any infectious
disease quarantine has to have some connection to a place where an
infected individual has been, not just to that individual. 6
Furthermore, DNR has issued a regulation that clearly empowers
DNR to do what it did. It provides, “A positive test result for chronic
wasting disease will result in a minimum of a five-year quarantine on the
preserve and all remaining animals located within the infected preserve.”
5Under the majority’s view that Iowa Code section 484C.12 only authorizes DNR
to isolate the diseased animals and do nothing else, I question whether DNR could even
direct the landowner to kill the animals.
6I agree with DNR: “A spatial component is therefore implicit in the definition of
quarantine.”
53
Iowa Admin. Code r. 571—115.10. While Iowa Code section 484C.3 is a
general grant of rulemaking authority, 7 rather than a specific grant of
interpretive authority, it is fair to characterize “quarantine” as
“specialized language” and “a substantive term within the special
expertise of the agency.” See Renda v. Iowa Civil Rights Comm’n, 784
N.W.2d 8, 13–14 (Iowa 2010). Hence, I would defer to DNR’s
interpretation unless it is “irrational, illogical, or wholly unjustifiable.”
Iowa Code § 17A.19(10)(l). Both sides in this appeal agree that this
deferential standard of review is appropriate here.
I do not think it is “irrational, illogical, or wholly unjustifiable” to
interpret section 484C.12 as giving DNR authority to require reasonable
actions to prevent the spread of the disease based upon where the
animals previously were in addition to simply moving the diseased
animals themselves.
Additionally, this law operates in a public health area where the
State historically has broad authority to act. “Unquestionably, the
inherent police power of a state allows a state to establish quarantines to
control disease in animals.” Johansson v. Bd. of Animal Health, 601
F. Supp. 1018, 1021 (D. Minn. 1985).
In Shinrone Farms, Inc. v. Gosch, we were asked to interpret an
Iowa Code section relating to brucellosis control. See 319 N.W.2d 298
(Iowa 1982). At the time the relevant Code section provided,
Whenever the balance of [the county brucellosis eradication]
fund becomes less than twenty-five hundred dollars, the
county auditor shall notify the department [of agriculture] in
writing of such fact, and no expense shall be incurred on
such account in excess of the cash available in such fund.
7Iowa Code section 484C.3 provides, “The department shall adopt rules
pursuant to chapter 17A as necessary to administer this chapter.”
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Iowa Code § 164.27 (1975). In 1977, the Sac County brucellosis
eradication fund lacked sufficient funds to indemnify Shinrone in full for
a brucellosis control claim. Id. at 300. Following the farm’s
commencement of litigation, the farm and the county entered into a
settlement whereby levies for the benefit of the fund in the maximum
amount would continue in future years and the fund would make
payments to Shinrone in future years, until Shinrone’s indemnity claim
was paid off. Id. The attorney general, however, issued an opinion that
“the county could not commit the fund, for successive years, to payment
of the claim.” Id.
We found the settlement was binding and enforceable
notwithstanding Iowa Code section 164.27 and other Code provisions.
We first observed, “Because chapter 164 is a health regulation within the
state’s police power, it is to be liberally construed.” Id. at 302. We then
held that section 164.27, “if interpreted to foster the public health
objectives of chapter 164, permits the settlement entered into in this
case.” Id. at 304. In our view, the section only prohibited current cash
payments once the fund balance fell below $2500, not binding
agreements to make payments in future years. Id. at 304–05.
Courts must be sensitive to regulatory overreach. Government
agencies should not issue a quarantine order that affects a landowner’s
livelihood without a legitimate medical and scientific basis for doing so.
Although the parties strongly disagree as to the need for the measures
ordered here, the conflicting scientific evidence was presented to the
commission, which upheld DNR’s order. The district court’s order, like
today’s opinion, is based solely on DNR’s alleged lack of legal authority
due to a crabbed reading of a statute. I’m not qualified to evaluate the
science, but on the law I disagree with my colleagues.
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For the foregoing reasons, I would reverse the district court’s
judicial review order and reinstate the decision of the Natural Resource
Commission.
Waterman, J., joins this concurrence in part and dissent in part.