TOM BRAKKE and RHONDA BRAKKE d/b/a/ PINE RIDGE HUNTING LODGE, and McBRA, INC., Appellees,
IOWA DEPARTMENT OF NATURAL RESOURCES and IOWA NATURAL RESOURCE COMMISSION, Appellants.
from the Iowa District Court for Polk County, Dennis J.
Iowa Department of Natural Resources appeals from a district
court order ruling an emergency order was outside of its
legislative grant of authority. AFFIRMED.
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.
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.
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.
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
appealed, and the landowners cross-appealed. For the reasons
expressed below, we conclude the DNR lacked statutory
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.
Factual and Procedural Background.
Introduction: Positive CWD Test from Deer Harvested at the
Pine Ridge Hunting Lodge.
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. 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.
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
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
agreements with breeding farms and statutory regulation of
whitetail deer-hunting preserves. See Iowa Code
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
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 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.
September 7, 2012 Agreement.
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
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.
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.
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
April 26, 2013 Letter.
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
"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.
5, the DNR discovered the gates at Pine Ridge were standing
open and that portions of the fence were damaged or had been
The Emergency Order.
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.
7, the Brakkes closed the gates at Pine Ridge and repaired
the fence. On June 11, however, wild deer were seen inside
The Administrative Hearing and the Natural Resource
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 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.
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
Contested case hearing.
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
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.
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.
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.
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.
Appeal to NRC.
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
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
Judicial Review of NRC Action.
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.
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
appealed the district court's decision, and the Brakkes
Standard of Review.
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 action falls within one of the
criteria listed in section 17A.19(10)(a) though
defer to the agency's interpretation of law when the
legislature has clearly vested that interpretation in the
agency's discretion." Kay-Decker, 847
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.
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).
Statutory Authority of the DNR to Quarantine Land Where
Whitetail Deer Test Positive for CWD.
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
Relevant provisions of the Iowa Administrative Procedures
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."
Statutory authority of NRC and DNR.
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).
Code section 484C.12 concerns testing for CWD. Section
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
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).
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