MORGAN HONOMICHL, ROBIN HONOMICHL, TIMOTHY HONOMICHL, DEB CHANCE, KARA CHANCE, KAREN JO FRESCOLN, MIKE MERRILL, and Q.H., Appellee,
VALLEY VIEW SWINE, LLC and JBS LIVE PORK, LLC, Appellants.
from the Iowa District Court for Wapello County, Annette J.
appeal the district court ruling on various motions,
including their motion for summary judgment, which denied
their statutory immunity defense under Iowa Code section
657.11(2) based on a finding by the district court that the
statute was unconstitutional as applied.
William H. Roemerman and Gerald T. Sullivan of Elderkin &
Pirnie, PLC, Cedar Rapids, for appellant Valley View Swine,
D. Bylund, Scott L. Halbur, Shannon L. Sole, and Ryan P.
Howell of Faegre Baker Daniels LLP, Des Moines, for
appellant, JBS Live Port, LLC.
Jennifer H. De Kock, Steven P. Wandro, and Kara M. Simons of
Wandro & Associates, P.C., Des Moines, and David E.
Sykes, Fairfield, for appellees.
W. Lipps of Peterson & Lipps, Algona, and David J. Stein
Jr. (until withdrawal) of Stein Law Office, Milford, for
amicus curiae Iowa Association for Justice.
L. McAfee and Julia L. Vyskocil of Brick Gentry, P.C., West
Des Moines, for amici curiae Iowa Pork Producers Association
and Iowa Farm Bureau Federation.
plaintiffs are the owners and/or residents of real estate
located near the confined animal feeding operations (CAFOs)
owned and operated by the defendants. The plaintiffs have
brought suit against the defendants, claiming the defendants
are negligent in their operation of the CAFOs. The plaintiffs
also contend the CAFOs constitute a nuisance that entitles
the plaintiffs to damages for the loss of use and enjoyment
of their property due to the odors, pathogens, and flies that
allegedly emanate from the CAFOs. The defendants filed a
motion for summary judgment on the nuisance claims alleging
Iowa Code section 657.11(2) (2016) bars such claims since the
plaintiffs cannot meet the requirements necessary under the
statute to recover the requested special damages against the
CAFOs. Meanwhile, the plaintiffs sought partial summary
judgment to strike the defendants' statutory immunity
defense under section 657.11(2).
district court denied the defendants' motion for summary
judgment and granted the plaintiffs' motion for partial
summary judgment. In doing so, the district court found
section 657.11(2) was unconstitutional as applied to the
plaintiffs under article I, section 1 of the Iowa
Constitution because it denies plaintiffs access to a remedy
for their alleged injuries. The defendants filed an
application for interlocutory appeal and stay, arguing the
district court erred in granting plaintiffs' motion for
partial summary judgment by finding that section 657.11(2)
was unconstitutional as applied to the plaintiffs. We granted
the application for interlocutory appeal and stay and
retained the appeal.
reverse the district court ruling granting the
plaintiffs' motion for partial summary judgment.
Specifically, the district court found that section
657.11(2), as applied to the plaintiffs in this case,
violated article I, section 1. However, the district court
did so without making specific findings of fact relative to
any plaintiff. Without this fact-based analysis, we are
unable to resolve this issue on this record. We therefore
reverse and remand the case to the district court for further
proceedings consistent with this opinion.
Background Facts and Proceedings.
case centers around two CAFOs located in Wapello County,
Iowa, which are known as Valley View Site 1 (Site 1) and
Valley View Site 2 (Site 2). Defendant Valley View Swine,
LLC, is a limited liability company organized under the laws
of the State of Iowa that has three members: Nicholas Adam,
Shawn Adam, and Jeffrey Adam. In 2013, Valley View Swine
entered into discussions with defendant JBS Live Pork, LLC,
(JBS)- then operating as Cargill Pork-to establish CAFOs at
Site 1 and Site 2. JBS is authorized to contract with Iowa
swine producers for the care and feeding of JBS-owned swine
pursuant to a consent decree filed on January 19, 2006,
between the State of Iowa and Cargill Pork, LLC, which
transferred its ownership to the company that now goes by JBS
Live Pork, LLC.
April 2013, the Iowa Department of Natural Resources (DNR)
issued Valley View Swine construction permits to implement
CAFOs on Site 1 and Site 2 in accordance with Iowa DNR rules
and regulations. These rules and regulations required Valley
View Swine to meet certain conditions and requirements both
during and following construction. Some of these conditions
and requirements included implementing an approved manure
management plan and following proper waste management
procedures to protect soil and waterways. Construction on
these sites was also required to comply with all local,
state, and federal requirements applicable to CAFOs. These
requirements included the need to maintain the minimum
separation distances between the CAFOs and "residence[s]
not owned by the owner of the confinement feeding
operation" or a commercial enterprise, bona fide
religious institution, or an educational institution"
under Iowa Code section 459.202. Iowa Code § 459.202.
View Swine complied with the applicable setback distances in
constructing the CAFOs. At the time of construction in 2013,
the necessary setback distance between the CAFOs and the
residences at issue was .36 miles or 1875 feet. Id.
§ 459.202(b) (2013). The closest plaintiffs to
Site 1, the Honomichls, live .67 miles from Site 1. The
Honomichls are also the closest plaintiffs living near Site
2, residing .72 miles from Site 2. The Chances live .70 miles
from Site 1 and 2.0 miles from Site 2. Karen Jo Frescoln
lives in Libertyville, Iowa, nearly ten miles from the
closest CAFO at issue. However, she is a party to this suit
since she owns property on which her daughter resides that is
.96 miles from Site 1 and 2.35 miles from Site 2.
August 1, 2013, near the completion of the construction,
Valley View Swine and JBS entered into hog-feeding agreements
for Valley View Swine to raise and care for JBS-owned hogs at
Site 1 and Site 2. JBS agreed to pay Valley View Swine
$3.3334 for each of the 9920 pig spaces on the combined Site
1 and Site 2. This provides Valley View Swine with annual
payments exceeding $396, 000. Pursuant to the agreements,
Valley View Swine is required to "comply with all local,
state, and federal laws, regulations, permits, and
orders" pertaining to the agreements. Moreover, Valley
View Swine must uphold the JBS Swine Welfare Policy and allow
JBS to conduct periodic audits. This includes abiding by the
JBS Wean-to-Finish Manual detailing the necessary procedures
Valley View Swine must follow for biosecurity, preplacement,
pig care and management, feed and water management, health,
barn environment, safety, waste management, and maintenance
of the CAFOs.
fulfill these agreements, Valley View Swine contracts with a
third-party barn manager, Brandon Warren, who works as an
independent contractor to manage the operation of the CAFOs.
Since Valley View Swine commenced operation of the CAFOs, the
Iowa DNR has not found Valley View Swine to be in violation
of any statute or regulation governing its operations. The
JBS periodic audits have likewise not found Valley View Swine
in violation of any applicable statutes or regulations.
same month that the defendants entered into their hog feeding
agreements, the Iowa DNR authorized the use of Site 1 and
Site 2 to serve as CAFOs, finding they were both constructed
in accordance with the Iowa DNR requirements. Site 1 began
operation that month, and Site 2 followed suit in September.
In November, seventy individuals, including the current
plaintiffs, filed a lawsuit against Valley View Swine, the
Adams, Cargill Pork (now JBS), Tri-L Farms, Inc., Larry
Hickenbottom, Josh Hickenbottom, and Richard Warren. The
petition alleged negligence and temporary nuisance based on
the odors, pathogens, and flies they alleged stem from the
CAFOs, as well as defendants' alleged failure to use
prudent management practices to reduce these odors,
pathogens, and flies. However, the plaintiffs failed to
fulfill the mediation requirement established in Iowa Code
section 657.10 before they filed their petition, and the
district court dismissed the case on January 2, 2014.
April 2, sixty-nine plaintiffs, including the current
plaintiffs, refiled the suit making the same claims against
the same defendants. In September, the district court severed
the case into three divisions- classified as Divisions A, B,
and C-based upon the various plaintiffs' allegations
against the different defendant groups. From those sixty-nine
plaintiffs, Deb Chance, Jason Chance, Kara Chance, Karen Jo
Frescoln, Robin Honomichl, Timothy Honomichl, Morgan
Honomichl, Q.H., C.H., and Mike Merrill were among those
placed in Division A, which is the only division at issue in
this case. Division A plaintiffs brought their claims against
Valley View Swine, the Adams, and Cargill Pork (JBS). The
district court joined all of the divisions for discovery
September 30, Division A plaintiffs filed an amended petition
and jury demand on behalf of all original sixty-nine
plaintiffs claiming temporary nuisance, permanent nuisance,
and negligence against Division A defendants due to the
odors, pathogens, and flies that allegedly emanate from the
CAFOs. The Division A defendants filed an answer, which
invoked section 657.11(2) as an affirmative defense, alleging
the plaintiffs could not meet the requirements under the
statute to recover their requested damages. In October, the
district court implemented a bellwether procedure, allowing
the plaintiffs and defendants to each select two plaintiff
households in order for separate bellwether trials to occur
in the different divisions. The bellwether plaintiffs include
the plaintiffs in this case, as well as C.H. and Mike
2013, plaintiffs' counsel have filed numerous nuisance
suits against JBS involving large groups of plaintiffs.
Plaintiffs' counsel have litigated these suits until
shortly before trial, at which time the plaintiffs dismissed
them. For example, Division A plaintiffs have filed four
versions of their petition, eliminating plaintiffs along the
way. C.H. was dismissed without prejudice in August 2015, and
Mike Merrill dismissed his claims against the defendants in
Division C plaintiffs eliminated twenty-six plaintiffs during
the course of litigation, which included filing six petitions
against Division C defendants prior to trial. Division B
plaintiffs dismissed their suit in its entirety in November
2014. Following the dismissal of Division B, the district
court consolidated Divisions A and C for discovery and
deadline purposes with another group of fifteen plaintiffs
suing JBS, among others, for negligence and nuisance in
Poweshiek County. The district court ordered the Division C
case to be tried first, followed by the Poweshiek County case
and the Division A case.
defendants in all of the divisions filed a motion for summary
judgment in their respective cases on October 6, 2015,
maintaining section 657.11(2) provided them with statutory
immunity against the plaintiffs' claims. On the same day,
the plaintiffs in all of the divisions filed a motion for
partial summary judgment in their respective cases, asking
the court to strike the defendants' statutory immunity
defense under section 657.11(2) by requesting the district
court declare the statute unconstitutional as applied to
them. The district court subsequently denied Division C
defendants' summary dismissal of the temporary nuisance
claims and granted Division C plaintiffs' motion for
partial summary judgment on the statutory immunity defense,
finding section 657.11(2) was unconstitutional as applied
under the inalienable rights clause of article I, section 1
of the Iowa Constitution. The district court granted Division
C defendants summary dismissal of all permanent nuisance
Division C trial took place in February 2016, and the jury
returned defense verdicts that found no nuisance on the
properties of any of the plaintiffs. JBS subsequently filed a
motion for costs and expenses, alleging three of the Division
C plaintiffs filed frivolous claims under section 657.11(5).
The district court held JBS raised a valid defense under
section 657.11 that rendered the three plaintiffs' claims
frivolous within the meaning of the statute. Therefore, the
district court found each of the three plaintiffs was liable
for his or her portion of the costs that JBS incurred while
defending against the frivolous claims.
2016, the district court ruled on the summary judgment
motions at issue in this case surrounding Division A. The
district court denied Division A defendants' summary
dismissal of the claims and granted Division A
plaintiffs' motion for partial summary judgment,
declaring section 657.11(2) is unconstitutional as applied to
Division A plaintiffs under the inalienable rights clause of
the Iowa Constitution. The district court granted summary
dismissal of all permanent nuisance claims.
ruling, the district court noted the statutory immunity
established in section 657.11 "unduly burdens the
plaintiffs by denying them access to a lawful remedy for
their alleged injuries to the person and/or to property
occasioned in [the] use of their real-estate interests."
Consequently, the district court denied defendants
"summary dismissal of the plaintiffs' claims on the
basis of the immunity in the first sentence of section
657.11(2)." Further, the ruling stated,
There are no material facts in good-faith dispute that
demonstrate that the plaintiffs suffer a disqualification
from remedy under a premise that they, as individuals,
benefit from the immunity statute greater than those in the
general public who benefit from the immunity protection of
Iowa Code section 657.11(2). JBS's Motion seeking summary
dismissal of all claims for a disqualification ...