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Going To The Top

By Staff | May 18, 2010

DES MOINES – Even though a court ruling has said the State of Iowa does not have to pay a drainage assessment of some $96,000, the Palo Alto County Board of Supervisors, acting as trustees of Drainage District 80, continue to work for a resolution of the issue. To that end, the supervisors, along with their legal counsel, drainage engineer and two state lawmakers, sat down with the head of the Iowa Department of Natural Resources Friday in Des Moines to plead their case again.

Rich Leopold, Director of the DNR, met with the local delegation, as well as several DNR staff members and Assistant Attorney General David Dorff in a conference room of the DNR Headquarters at the Wallace Building on the Capital Complex Friday morning.

Supervisor Chair Jerry Hofstad cut to the heart of the matter to start the meeting. “We are here to try and explain to you while we feel Palo Alto County was not treated fairly,”

Hofstad reviewed the basic facts of the ongoing dispute, which dates back to 2005 when Five Island Lake was annexed into DD80 during a reclassification and annexation on the district. At that time, a legal notice of the annexation was mailed to the Iowa Department of Natural Resources in Des Moines. The DNR did not file any notice of objection at the annexation hearing in 2005, but filed an appeal in the Palo Alto County District Court in 2006, contending that the notification the state received was not valid for various reasons, as well as claiming the state was exempted from paying assessments due to sovereign immunity.

Following the state’s original appeal, Palo Alto County requested a summary judgment in the matter and that case was heard in August of 2008, at which time the state’s objection was upheld. The county filed an appeal in December, requesting the original objection be reversed, but on January 14 of 2009, the assessment, totaling $96,633.83, was declared void by the District Court.

“There’s an extensive history here and I believe there has been some legal action her that has set precedence in this case,” Leopold said. “I’ve been on the lake, been around the lake and know the lake…I am likely not going to be making a decision by the end of this meeting. What I’m doing here is trying to gather information, trying to understand the issue better.”

Hofstad reviewed the points of the two legal cases, and Leopold asked what the bottom line of the current legal status of the issue was.

“My predecessor at the Attorney General’s Office, Mike Smith, tried both of these cases and there isn’t any legal precedence at this point,” noted David Dorff of the Attorney General’s office.  “Until there is a published decision by either the Iowa Supreme Court or the Iowa Court of Appeals, there is no precedent. All we have is a pair of district court decisions. Neither case was appealed, so they both stand as final.”

“Whom, may I ask, asked to start the suit in the first place?” Hofstad asked. “Where did that come from – who asked for it?”

“I don’t know the answer,” Dorff replied.

“We can’t seem to find that out,” Hofstad said. “Nobody seems to know that answer.”

“I will say that the DNR is not the entity responsible for paying the drainage district taxes. Those are paid by the Executive Council,” Dorff answered. “To my knowledge, the Executive Council never requested that the state take legal action and I don’t know the answer to your question.”

“Can we find that out?” Hofstad pressed. “We feel like we’re entitled to know.”

Dorff answered he would look at the past records to find the answer.

“Wouldn’t the attorney who did the case know?” Supervisor Ed Noonan asked.

Dorff agreed, but noted that Mike Smith, who had handled the case, retired two years ago.

“Who would be your guess?” Noonan asked. “I wouldn’t want to guess,” Dorff replied.

“The DNR?” Noonan pressed.

“I wouldn’t want to guess,” Dorff answered again.

“Who else would do it?” Noonan said.

“There is a paper trail, as anything in court is a public document,” State Representative Marcie Frevert reminded the group, as Noonan displayed a copy of the court decision listing The State of Iowa as the Plaintiff.

“It’s something we can certainly find out,” noted Diane Ford, representing the Recreational Division of the DNR. “It’s no secret, its all public record. We’ll make sure you get that.”

“We asked that at the last meeting, in Jack’s (Kibbie) office,” Noonan answered, “and everyone looked around and said, “We don’t know.”

“May I ask what resolution do you want?” Ford asked. “Quite frankly, it appears that this is out of our hands at this point. This seems to be a matter for the Executive Council.”

Dorff noted that he is aware that there are philosophies of some DNR employees that state lakes are not benefitted by drainage, and that philosophy was the nature of testimony in the Five Island case.

“There was also expert testimony by your engineer to the contrary, and it was up to a judge to make the decision,” Dorff said. “There was a difference of opinion from the Rush Lake case to the Five Island case.”

Dorff continued, “Now, the DNR doesn’t have a dog in this fight, it’s the Executive Council that pays those taxes and that leads me back to determine who decided to contest the assessments in the first place, and I will look into that.”

LOOK FOR MORE on the Lake Assessment in The Democrat, May 20.