IN THE IOWA DISTRICT COURT FOR ALLAMAKEE COUNTY
SIERRA CLUB, GREGORY,LEPPERT, LORI LEPPERT, JEFFREY LEPPERT, LISA LEPPERT, ROBERT WOLF, BONNIE KOLOC, KENNETH LEPPERT, KAREN LEPPERT, DELLA LEPPERT, and DONALD LEPPERT,
Plaintiffs,
vs.
MURPHY OF IOWA, INC. and WAYNE WEBER,
Defendants.
Come now the Plaintiffs and for cause of action state:
FACTS
1. Plaintiff, Sierra Club, is a non-profit corporation with approximately 4,000 members in the State of Iowa. These Iowa members are dedicated to the preservation of the environment and are active users of water resources for a range of family and individual activities. Some members of the Sierra Club use and enjoy trout fishing on French Creek, in Allamakee County, Iowa. These members will suffer immediate and direct injury if French Creek is polluted as described in the following paragraphs of this Petition.
2. Plaintiffs, Gregory Leppert, Lori Leppert, Jeffrey Leppert, Lisa Leppert, Robert Wolf, Bonnie Koloc, Kenneth Leppert, Karen Leppert and Donald Leppert, are residents of Allamakee County, Iowa, who live near the hog confinement facility that is the subject of this lawsuit. These Plaintiffs are affected by the odor, noise, and groundwater contamination caused by the hog confinement facility and the disposal of its manure. Plaintiff, Della Leppert, owns property near the hog confinement facility, and the value of her property is greatly reduced as a result of the construction and operation of the facility.
3. Defendant, Murphy of Iowa, Inc., is an Iowa Corporation, doing business in the State of Iowa. It is in the business of raising hogs in large concentrated animal feeding operations and selling the finished hogs to meat packers.
4. Defendant, Wayne Weber, is a resident of Allamakee County, Iowa, who has contracted with Murphy of Iowa, Inc. to construct a hog confinement facility on his property in Allamakee County and to manage the operation for Murphy.
5. In November, 1998, Defendants began operating the aforementioned hog confinement facility. The manure from the operation is being stored in a formed storage structure on Defendant Weber’s property, adjacent to the buildings where the hogs are confined.
6. The manure in the storage structure is periodically applied to farm fields near the confinement facility. These fields are in the watershed that drains into French Creek.
7. French Creek flows from its source to the Upper Iowa River. This creek is the best wild trout stream in Iowa, and it is managed by the Iowa Department of Natural Resources as a wild trout fishery. The quality of French Creek is so good that brown trout are able to reproduce naturally there. The Iowa Department of Natural Resources owns land along French Creek in order to protect these natural qualities.
8. The geology of the area around French Creek, including the Defendants’ hog confinement operation and the fields where the manure is being applied, consists of a thin layer of glacial till covering fractured dolomite rock, creating a direct conduit to the aquifer and the springs that constitute French Creek.
9. Other storage structures of the exact type as the Defendants’ at other locations have experienced mechanical failures resulting in spills or potential spills of manure into nearby waterways.
10. Manure spills from animal confinement operations at other locations in Iowa and in other states have caused the death of thousands, if not millions, of fish. Likewise, hog confinement operations cause unbearable odor, groundwater contamination, insects, vermin, dust and diminution of property value to nearby residents.
COMMON LAW NUISANCE
11. Plaintiffs reallege paragraphs 1 through 10 as if each were set forth in full.
12. Defendants' operation of the hog confinement facility and attendant manure application activities substantially and unreasonably interfere and/or will interfere with the Plaintiffs' private use and enjoyment of their property and their use of French Creek as a natural resource.
13. As a proximate and direct result of the nuisance created and maintained on property owned and operated by Defendants, Plaintiffs have suffered and/or will suffer.
14. Unless the Defendants are enjoined and restrained from operating their hog confinement facility and applying manure as currently undertaken, the Plaintiffs will suffer permanent damage in the use and enjoyment of their property and in their use and enjoyment of French Creek.
15. Plaintiffs' remedy at law is not adequate.
16. Defendants' conduct amounts to willful or reckless disregard of Plaintiffs' rights and justifies an award of punitive damages.
WHEREFORE, Plaintiffs pray for judgment against the Defendants, for abatement of the nuisance including an injunction enjoining and restraining Defendants from conducting a concentrated animal feeding operation on Defendant Weber's property, from applying manure on fields in the watershed of French Creek, and/or for cleanup; for damages in an amount to be determined which will fully and adequately compensate the Plaintiffs for the damages caused by the nuisance, for impairment of the use and enjoyment of their property and of French Creek, for diminution in value, for physical and emotional pain and suffering, f or mental distress, for personal discomfort, inconvenience and annoyance; for punitive damages; for statutory interest; for costs; and for such other and further relief as the Court may deem proper.
NUISANCE UNDER IOWA CODE SECTION 657
17. Plaintiffs reallege paragraphs 1 through 16 as if each were set forth in full.
18. Defendants' operation of the hog facility and conditions resulting therefrom are an obstruction to the free use of property within the meaning of Iowa Code section 657.1 and a nuisance as defined by Iowa Code sections 657.2(2), (4).
19. As a proximate and direct result of the nuisance created and maintained upon the property owned and operated by Defendants, Plaintiffs have suffered and will suffer.
20. Defendants conduct amounts to willful or reckless disregard of Plaintiffs' rights and justifies an award of punitive damages.
WHEREFORE, Plaintiffs pray for judgment against the Defendants, for abatement of the nuisance including an injunction enjoining and restraining Defendants from conducting a concentrated animal feeding operation on Defendant Weber's property, from applying manure on fields in the watershed of French Creek, and/or for cleanup; for damages in an amount to be determined which will fully and adequately compensate the Plaintiffs for the damages caused by the nuisance, for impairment of the use and enjoyment of their property and of French Creek, for diminution in value, for physical and emotional pain and suffering, for mental distress, for personal discomfort, inconvenience and annoyance; for punitive damages; for statutory interest; for costs; and for such other and further relief as the Court may deem proper.
PUBLIC TRUST DOCTRINE
21. Plaintiffs reallege paragraphs >1 through 10 as if each were set forth in full.
22. French Creek and the state-owned land along its banks isa public resource held by the State of Iowa in public trust. The above described activities of the Defendants are damaging, or will damage, this public resource.
23. plaintiffs have a right to protect French Creek as members of the public and users of this public resource.
WHEREFORE, Plaintiff s pray for judgment against the Defendants, for an injunction enjoining and restraining Defendants from conducting a concentrated animal feeding operation on Defendant Weber's property, from applying manure on fields in the watershed of French Creek, and/or for cleanup; for costs; and for such other and further relief as the Court may deem proper.
TRESPASS
24. Plaintiffs reallege paragraphs 1 through 10 as if each were set forth in full.
25. Defendants intentionally caused or will cause odor, manure, and/or runoff to unlawfully enter and to remain on the land of some of the Plaintiffs without the consent of the plaintiffs.
26. As a proximate and direct result of the trespass caused by Defendants, Plaintiffs have suffered and/or will suffer significant damages.
27. Defendants conduct in causing the trespass amounts to willful or reckless disregard of Plaintiffs' rights and justifies an award of punitive damages.
WHEREFORE, Plaintiff s pray for judgment against the Defendants, for an amount to be determined which will fully and adequately compensate the Plaintiffs for the damages caused by the trespass, for impairment of the use and enjoyment of their property, for diminution in value, for physical and emotional pain and suffering, for mental distress, for personal discomfort,inconvenience and annoyance or punitive damages, for statutory interest, for costs, and for such other and further relief as the Court may deem proper.
NEGLIGENCE
28. plaintiffs reallege paragraphs 1 through lo, inclusive, as if each were set forth in full herein.
29. Defendants owed a duty of care to the plaintiffs to act with reasonable care and failed to fulfill that duty.
30. Defendants were negligent in the operation of the facility, and in failing to take reasonable precautions to protect against the harm which could result from such activities.
31. Defendants' failure to exercise reasonable care caused and will cause direct, proximate and foreseeable harm to the Plaintiffs.
WHEREFORE, Plaintiffs pray for judgment against the Defendants, jointly and severally, for an amount to be determined which will fully and adequately compensate the Plaintiffs for the damages caused by the Defendants' negligence, for impairment of the use and enjoyment of their property and of French Creek, for diminution in value, for physical and emotional pain and suffering, for mental distress, for personal discomfort, inconvenience and annoyance, for statutory interest, for costs, and for such other and further relief as the Court may deem proper.
455B.113. CITIZEN ACTION
32. Plaintiffs reallege paragraphs 1 through 10 as if each were set forth in full.
33. Defendants have violated and continue to violate provisions of Iowa Code S455B and rules adopted pursuant to that chapter including without limitation the following:
A. The federal Clean Water Act requires that a point source of pollution discharging into waters of the United States obtain a National pollutant Discharge Elimination System (NPDES) permit. 33 U.S.C. S 1311.
B. A "concentrated animal feeding operation," such as the Defendants' operation described herein, is a point source of pollution. 33 U.S.C. S 1362(14).
C. The Defendants have not obtained a NPDES permit for their hog operation and are in violation of the Clean Water Act.
D. Iowa law requires any new point source for the discharge of any pollutant into any water of the state to obtain a permit. Iowa CodeS 455B.183(2). The Iowa Department of Natural Resources (DNR) administers the NPDES program under the Clean Water Act pursuant to the delegation and oversight of the Environmental Protection Agency (EPA). Therefore, a violation of the Clean Water Act is a violation of Iowa law.
34. Plaintiffs have been adversely affected by Defendants' violations of 455B and the rules adopted thereunder.
35. The plaintiffs have given the DNR and the Defendants 60 days notice of their intent to pursue a citizen action pursuant to 455B.111, a copy of which is attached hereto as Exhibit "A" and by this reference incorporated herein.
36. Neither the state nor the Department of Natural Resources has commenced a civil action or is actively negotiating an out-of-court settlement to require abatement of the violation.
WHEREFORE, Plaintiffs pray for judgment against the Defendants, for abatement of the violation and remediation of the damages, for statutory interest, for costs, for the expenses of litigation including attorneys fees, and for such other and further relief as the Court may deem proper.
Brenda Myers #13438
1601 22nd St. Ste 302 West Des Moines, IA 50266
(515) 223-7230
FAX (515)223-7234
Wallace Taylor LI0005501
118 3rd Ave. S.E. Suite 326
Cedar Rapids, IA 52401
(319) 366-2428
(319)366-3886 (fax)
Original Filed.
Copy to:
Bob Malloy
Lynn Collins
503 N. Main, P.O. Box 128
Galdfield, IA 50542
ATTORNEYS FOR MURPHY
Eldon McAffee
Beving, Swanson, & Forrest
321 E. Walnut St., Ste. 200
Des Moines, IA 50309