from the Iowa District Court for Audubon County, Greg W.
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
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.
M. Livingston of Stuart Tinley Law Firm, LLP, Council Bluffs,
for appellees Audubon County, Iowa and Audubon County Board
J. Miller, Attorney General, and David L. Dorff, Assistant
Attorney General, for appellee Audubon County Soil and Water
Considered by Potterfield, P.J., and Bower and McDonald, JJ.
POTTERFIELD, PRESIDING JUDGE.
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.
Background Facts and Proceedings.
a catastrophic flood in 1958, the Soil Conversation Services-
now known as the Natural Resources Conservation
Service-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
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
d. Repair damaged tile lines and tile outlets.
e. Remove obstructions in channels downstream of structures
and clean out ...