Published: August 04, 2006 10:54 pm            

DNR director concerned with property rights issues

As Department of Natural Resources Director and a property owner in Iowa, I took great interest in the recent debate on eminent domain.

With great fanfare in a special session, the Iowa General Assembly voted overwhelmingly to override our governor’s veto of a bill passed during the most recent legislative session that restricts the use of eminent domain procedures by government in Iowa to take private property. Property owners everywhere can now feel better protected from their governments when it comes to the taking of their private property for the “public good.”

What bothered me during all that debate is the fact that, every year, hundreds of Iowans have their private property rights violated by private entities — and have virtually no voice in the process. These citizens have been prevented by laws, voted on and passed by many of these same legislators, from having a say in decisions made hundreds of times a year by neighbors and corporations to build large scale confined animal feeding operations near their rural properties.

Once built, these voiceless Iowa citizens lose economic value of their property, lose the constitutional right to freely enjoy the use of their property and potentially suffer adverse health impacts due to the emissions from these facilities. They, and the rest of us, are left to deal with the catastrophic environmental impacts when something goes awry and there is a manure spill that pollutes our public waters and kills aquatic life.

Let’s examine this a bit further. A study released by Iowa’s Center for Agricultural and Rural Development in 2003 provides credible evidence documenting the loss of rural residential property values when a new CAFO is constructed in the vicinity — especially when the existing home is downwind of the CAFO.

This study demonstrated that economic damages to neighbors in Iowa are similar to that in other states, citing a similar study done in North Carolina. This is an uncompensated “taking” of private property that is occurring frequently across Iowa — and those losing money have no voice in the decision on where or even whether the CAFO should be built.

With regard to use and enjoyment of their private property, it is interesting to note that neighbors are specifically prevented by Iowa law from having a voice in these decisions, in part to protect the property rights of those who want to build these large confinements

As you can imagine, almost no one wants to be subjected to the odor and other byproducts of such operations. But to protect the economic interests of a few, we abridge the rights of others — starting with rights provided under Article 1, Section 1 in the Iowa Bill of Rights: “All men and women are, by nature, free and equal, and have certain inalienable rights — among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property and pursuing and obtaining safety and happiness.”

In a 1942 Iowa Supreme Court decision, the court held that property consists not only of the physical land, but also the rights of “use and enjoyment” (Liddick v. City of Council Bluffs). In more recent cases, the Iowa Supreme Court has limited nuisance immunity provided to livestock producers in state law — allowing some neighbors to successfully sue confinement operators for damages.

But the question must be asked: Is it a reasonable burden to place on aggrieved rural Iowans, that they have to litigate to defend rights that are so clearly protected in our Constitution?

Finally, there are the public health considerations. In 2001, a joint Iowa State/University of Iowa panel of subject matter experts, after an exhaustive review of available literature and science, made a consensus recommendation that critical CAFO emission elements (hydrogen sulfide, ammonia and odor) be regulated. They went further and told us what the emission standards should be to protect human health from the adverse impacts of these chemical components.

The DNR and Environmental Protection Commission, with support from the Iowa Department of Public Health, took the “bold” step of listening and acting on these recommendations. Rule making was undertaken and standards were adopted. Too bold, apparently, for the General Assembly at that time, as they voted to nullify the new rules within a few days of their adoption — citing too much of an economic burden on the offending industry among their reasons.

So, where are we today? In the past four years, we have seen unprecedented growth in the numbers of large CAFOs across Iowa. The U.S. Ag Census documents well more than a million additional hogs being produced in Iowa today compared to four years ago and the emotional confrontations between producers and neighbors are growing both in frequency and bitterness.

There are answers. We need to implement them. Our legislative leaders need to allow the DNR’s pending environmental evaluation rule to take effect next month. We need to give a meaningful voice to citizens who are having their property rights taken by CAFO developers as new sites are developed. This can be done easily with a simple law change that authorizes counties to zone where these facilities can be built — and where they cannot.

Finally, we need to have a system that requires these developers to monetarily compensate adjacent landowners for the loss of property values when a new facility is built.

Iowans deserve to have their private property and its enjoyment protected from takings — not just from government, but from corporate neighbors as well.



Jeff Vonk is director of the Iowa Department of Natural Resources.

        

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