Iowa Supreme Court oral argument recap: Justices go hunting for the DNR’s legislative authority

by Rox Laird | November 16, 2016

Justices of the Iowa Supreme Court engaged in a lively exchange with lawyers Wednesday in a case involving the extent of the Iowa Department of Natural Resources’ authority to protect deer from Chronic Wasting Disease (CWD).

Tom and Rhonda Brakke closed their Davis County whitetail deer hunting preserve after deer harvested there tested positive for CWD. But they argue the DNR exceeded its statutory authority in subsequently ordering a quarantine and that a fence be maintained around the 330-acre property for five years. The Brakkes also argue the state’s action amounted to an unconstitutional taking without just compensation.

Following are excerpts from the oral argument.

Assistant Iowa Attorney General David Dorff said that while the trial court ruled that state law provides for quarantine of animals but not of real property, this quarantine is proper when the statute is read in the context of its “purpose and practical considerations.”

Justice Thomas Waterman: How much interpretive deference should be given to the DNR to administer the statute?

Dorff: A lot of deference.

Justice Brent Appel: What is in the statute that says we should give that deference?

Dorff: Deer hunting preserves are a highly regulated industry, with requirements for registration, record-keeping and disease control.

Appel: The remedy you are seeking seems to me quite muscular. As I read the statute, I’m inclined not to go with your position. It is a very strong regulatory position.

Dorff: It is a strong position because the science says the disease can persist in the environment for a long time, and the legislative intent is to prevent the spread of the disease. The muscle has to be there to protect the deer.

Justice David Wiggins: Isn’t it for the Legislature to put in the muscle? Did the Legislature intend for the DNR to have that authority in the first place?

Justice Edward Mansfield: Even if we find that the statute authorizes quarantine on land, the DNR can’t issue an arbitrary and capricious order. There seems to be controversy over the science, and you need a scientific basis for the order.

Turning to the constitutional takings question, Justice Appel said the government must have a legitimate interest for regulation. You can regulate, but you can’t clobber. There is a state interest in protecting deer from disease, but you can’t pull out a giant cannon to blast a fly away.

The first question for the Brakkes’ lawyer, Des Moines attorney Rebecca Brommel, came from Chief Justice Mark Cady: Did the DNR previously have the authority to enter the order that a fence be maintained to prevent deer from entering the former preserve, and when did that authority end?

Brommel: The state’s jurisdiction ended when all deer were removed and the preserve was closed.

Cady: So, a unilateral act by a property owner can destroy the authority of the DNR?

Justice Bruce Zager: The fencing is a huge part of this, to keep other deer from coming in to the contaminated preserve. It seems like a natural, rational way of looking at this.

Brommel: The state statute provides for the quarantine of diseased whitetail deer in preserves. It made a choice: Get rid of animals but do not be concerned about keeping other animals off the land.

Justice Thomas Waterman: The DNR had a plan, which included fencing. It makes sense that the Legislature gave the DNR the latitude to install that plan.

Brommel: Yes, but the plan ended when the preserve closed and all deer were removed.

Waterman: Were the land owners free to remove the fence then?

Brommel: Once it was no longer a hunting preserve, they were free to remove the fence.


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