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Branstad’s fish-killing brother loses appeal

dead-fishDES MOINES – Monroe Branstad, Governor Terry Brantad’s brother, lost an appeal after killing fish in the Winnebago River with pollutants from his farm.

The Iowa Department of Natural Resources (DNR) was called to investigate a fish kill that occurred in the Winnebago River on or around August 28, 2008. Scott Grummer, a biologist for the DNR, led the investigation into the fish kill. During the investigation, Grummer interviewed Monroe Branstad about the possibility that the fish kill was caused by pollution from his farming operation. According to Grummer, Branstad said he had recently installed a silage leachate runoff basin on his property. Branstad also said that he was the only farmer in the area he knew of who stored silage leachate. The fish kill affected 16.1 miles of the Winnebago River.
As a result of Grummer’s investigation, he determined that the release of sweet corn silage runoff from Branstad’s farming operation caused the fish kill on the Winnebago River. Grummer also performed a fish kill assessment, which led him to calculate that the number of fish killed was 31,244 and that those fish had a monetary value of $63,020.23. As a result of this investigation and fish kill assessment, the DNR prepared a litigation report and made a referral to the attorney general’s office for appropriate enforcement action.

On May 11, 2010, Branstad entered into a consent order with the State. As part of this consent order, Branstad admitted that on August 28 and 29, 2008, sweet corn silage leachate, a pollutant, discharged from a containment basin on his farm operation into the Winnebago River in violation of Iowa Code. However, Branstad denied the discharge caused the death of fish in the Winnebago River and specifically reserved his right to contest any claim for damages brought by the DNR for the fish kill. Branstad agreed to pay a civil penalty of $10,205 and an administrative penalty of $6,795 for the violations.

On June 10, the DNR submitted its restitution assessment to Branstad. As noted in the restitution assessment, Iowa Code section 481A.151 provides that any person who is liable for polluting water of the state in violation of state law shall be required to pay restitution for the injury. Iowa Code also authorizes the Iowa Natural Resource Commission to adopt rules providing for procedures for the investigation of violations and the assessment of restitution amounts. The restitution assessment also set forth Branstad’s appeal rights.

Following the investigation, the final amount in the restitution assessment given to Branstad was $61,797.49.

Branstad timely filed his petition for judicial review in the district court. In its ruling issued July 16, the district court affirmed the final decision of the Commission on most of Branstad’s arguments. However, the district court found that the DNR failed to follow its own rules for investigating fish kills. The district court found that the extrapolation method used by the DNR when it investigated the Winnebago River fish kill was incorrect and inconsistent with the methods prescribed by the American Fisheries Society Special Publication 24. The district court reversed the final decision of the Commission and struck the restitution assessment. On July 29, the DNR requested that the district court reconsider its ruling and remand the case for a restitution calculation based only on the amount of dead fish actually counted. The district court determined that this was consistent with the rules contained in AFS 24. The district court remanded the case to the Commission to recalculate the damages based upon the 2,233 dead fish actually counted by the DNR.

In its decision on remand, the Commission reduced the restitution assessment to Branstad as a result of the Winnebago River fish kill to $5,298.19. Branstad did not appeal this restitution assessment.

On October 30, Branstad filed an application for an award of about $70,000 in attorney fees (Christine E. Branstad of Branstad Law, PLLC, Des Moines, and James L. Pray of Brown, Winick, Graves, Gross, Baskerville and Schoenebaum, PLC, Des Moines, represented Branstad). The district court denied Branstad’s motion for attorney fees on January 3, 2014.

However, the court of appeals reversed the district court’s decision and remanded the case for a calculation of attorney fees. The court of appeals held that none of the exceptions found in Iowa Code applied to Branstad’s case to preclude an award of attorney fees. The court of appeals also held that the district court should have found Branstad was the prevailing party under the statute.

The Supreme Court ruled this week that Monroe Branstad would get no reimbursement for attorney’s fees.

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