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Sunberg v. Audubon County

Court of Appeals of Iowa

November 21, 2018

DWAYNE SUNBERG and PATRICIA SUNBERG, Plaintiffs-Appellants,
v.
AUDUBON COUNTY, IOWA, AUDUBON COUNTY BOARD OF SUPERVISORS, and AUDUBON COUNTY SOIL AND WATER COMMISSION, Defendants-Appellees.

          Appeal from the Iowa District Court for Audubon County, Greg W. Steensland, Judge.

         The plaintiffs appeal from the district court's dismissal of their lawsuit, which sought damages for failure to properly maintain a soil and water conservation structure located on their property.

          Jeremy B. Hahn and Deborah L. Petersen of Petersen Law PLLC, Council Bluffs, and James C. Webering of Webering Law Offices, P.C., Glenwood, for appellants.

          Robert M. Livingston of Stuart Tinley Law Firm, LLP, Council Bluffs, for appellees Audubon County, Iowa and Audubon County Board of Supervisors.

          Thomas J. Miller, Attorney General, and David L. Dorff, Assistant Attorney General, for appellee Audubon County Soil and Water Commission.

          Considered by Potterfield, P.J., and Bower and McDonald, JJ.

          POTTERFIELD, PRESIDING JUDGE.

         Dwayne and Patricia Sunberg initiated a lawsuit against Audubon County, the Audubon County Board of Supervisors, and the Audubon County Soil and Water Commission (collectively, "the defendants") seeking damages for the defendants' alleged failure to properly maintain a soil and water conservation structure located on the Sunbergs' property. On appeal, the Sunbergs claim the defendants have a statutory, contractual, and common law duty to maintain the structure by removing accumulated silt or taking action to reduce the rate the silt would accumulate. They assert the district court was wrong to conclude the defendants did not owe a duty to the Sunbergs to maintain the structure or, alternatively, even if the defendants did owe a duty to maintain, their inaction allowing the accumulation of silt was not a breach of the duty to maintain.

         I. Background Facts and Proceedings.

         Following a catastrophic flood in 1958, the Soil Conversation Services- now known as the Natural Resources Conservation Service[1]-entered into an operation and maintenance agreement with the Audubon County Soil and Conservation District (the district) and the Audubon County Board of Supervisors (the board). The agreement "establish[ed] responsibilities for operation and maintenance" to works of improvement "to be installed in the David's Creek Watershed." The district agreed to "take necessary steps to insure that structures will function as intended" and "[t]ake all other necessary steps to insure that the works of improvement are permitted to function in the manner for which they were designed, and are operated in accordance with any applicable State law." The board agreed it was "responsible for the operation and maintenance of the works of improvement," including "tak[ing] necessary steps to insure that structures will function as intended." Additionally, the board specifically agreed to:

Perform, in accordance with any applicable State laws, all maintenance needs indicated by inspections and report thereof within the time limits specified, if any, in such manner as not to damage the works of improvement in any way. Maintenance may include, but not be limited to, the following:
a. Remove and dispose of debris.
b. Topdress vegetated embankments, spillways, borrow areas, structural waterways and diversions with needed applications of plant food.
c. Refill, smooth and vegetate rills on embankments, spillways, borrow areas, structural waterways, and diversions.
d. Repair damaged tile lines and tile outlets.
e. Remove obstructions in channels downstream of structures and clean out ...

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