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Going To The Top

By Staff | May 20, 2010

(Editor’s Note: Palo Alto County Board of Supervisors, acting as trustees of Drainage District 80, were in Des Moines last week with their legal counsel, drainage engineer and two state lawmakers. They sat down with the head of the Iowa Department of Natural Resources to plead their case on a drainage assessment of $96,000. The first part of the story was printed in The Reporter, May 18.)

Continued From May 18

Cylinder area resident Linus Solberg, who also attended the meeting, pointed out that people in Palo Alto County are asking the question, “How can the DNR not understand that this ditch benefits Five Island Lake? That’s where it drains. If you dammed it up, it would drain back through town.”

“If you use any common sense, you ought to be able to sit down and come to some resolution on this issue,” Solberg said.

State Senator Jack Kibbie reminded the group of the two meetings that had been held on the issue in his office, and that it had been discussed to get the issue to the Executive Council, but that the Attorney General’s office has come out to say that can’t be done.

Robert Brinton, serving as the county’s drainage attorney, agreed that a legislative option would be a possibility to resolve the issue, and noted that there have been statutes to address benefits of drainage for lakes. “When a natural lake has an outlet to a drainage district, and gets benefit from it over time, you shouldn’t take one of the largest landowners out of the district.”

“You’re angry, you’re frustrated and I’m frustrated, because I don’t see a fix or where we even have the power to fix this,” Leopold said. “This may have originated with DNR folks, I don’t know, but we’ll check on that. It may have not. It does happen all over the state, all the time – whether its easements, infringements, water or air quality laws, whatever. We have lots of attorneys and we do a lot of things…we have attorneys and we have disputes all over the state.”

Leopold continued, “There are two court decisions here that have happened, and regardless if there was details missed or incompetence or a wrong legal move made, two judges have ruled on this. We can’t just trump them. Those judges’ opinions are the law of the land until they’re changed. I’m kind of at a dead end here and don’t know what to do.”

“It seems to me that to get to the Executive Council, the Attorney General is going to have to develop an opposite viewpoint of their original letter, and they would have to recommend that the assessment be paid,” noted Jack Kibbie. “That’s the hurdle this faces.”

“We would just like to have a wrong righted,” Hofstad said. “That’s all,”

“I am not convinced of the rightness or wrongness of your case, or our case,” Leopold said. “I don’t know which decision was good or bad and convincing me either way, I don’t think really matters right now. What I look at is that we have legal decisions by two judges that are now standing and the Attorney General’s Office is standing behind them and its not going to Executive Council, so it doesn’t matter what I think. Now, if the Attorney General’s office had a change of heart and came to me and said ‘we’ve got to figure this out’, that would be different. But the time that you would spend convincing me that you’re right would be time wasted right now because I feel like I’m out of the queue.”

“Well, let’s put you in the queue,” Marcie Frevert said. “So, what you’re saying is if we could convince the Attorney General to have a change of heart, you would consider a change of heart.”

“I would consider it,” Leopold answered, “If that were to happen, I would talk to the AG’s office.”

Before the meeting ended, Don Etler brought up the fact that the DNR had never filed any objection to the drainage assessments in the time period specified by drainage law, stating, “Your staff’s failure led to this situation.”

“Notices were sent to the same addresses, the same people would have handled them,” Etler said, “but for some reason, the Five Island notice was lost. Six months after they were due, Greg Jones of the DNR contacted me for an explanation of how the assessments were figured, and he told me that the agency lost the notices, he never saw them, so that’s why they didn’t appear at the hearings and object.”

It was after that point, Etler said, the lawsuits came about. “If that hadn’t happened, I don’t think we’d be here right now. This was a procedural failure.”

“I don’t think you’re suggesting conspiracy, that there was some reason why they were lost,” Leopold answered Etler, “but that you are suggesting we dropped the ball, incompetence…I’m not disputing what you’re saying that we dropped the ball somewhere and that because we dropped the ball, these things happened.”

Leopold told the group he will look at two factors in the case to make any kind of decision – the first being the merits of the actual case, the plusses and minuses, and secondly, any precedent that might be established that could affect the DNR and the state in the years to come.