- Associated Press - Wednesday, April 8, 2015

IOWA CITY, Iowa (AP) - Gov. Terry Branstad’s brother is entitled to taxpayer-funded legal fees for successfully challenging the state’s calculation of how many fish were killed by pollution from his cattle-farming operation, an appeals court ruled Wednesday.

Monroe “Monte” Branstad is the prevailing party in his dispute with environmental officials who fined him for an illegal 2008 discharge that killed fish in the Winnebago River, the Iowa Court of Appeals ruled, overturning a lower court.

Branstad’s challenge “served the public good” by correcting an illegal and long-standing method the Iowa Department of Natural Resources used for counting fish kills, according to the unanimous three-judge panel, which included two Terry Branstad appointees.

DNR spokesman Kevin Baskins disputed the court’s conclusion, saying the agency properly followed its counting procedures in the case and hasn’t changed them.

A judge is now expected to reimburse all or most of the $71,000 in fees that one of Branstad’s attorneys, James Pray, has requested. The judge should also consider an award to Branstad for legal fees incurred during the appeal, during which he was represented by Christine Branstad, the governor’s niece, the court ruled.

“Personally, I am relieved that Monte was heard and received a fair result. But professionally I’m happy that this case reinforces the access to justice that was granted by the Legislature,” Christine Branstad said.

She urged anyone who would accuse the court of favoritism to read the opinion.

The case stems from August 2008, when DNR officials received a report that numerous dead fish could be seen on the Winnebago River in northern Iowa. Investigators found polluted waters and traced the source to Branstad’s farm in rural Forest City, which had 1,100 cattle in open lots and confinement.

Branstad admitted that sweet corn silage leachate, a pollutant, had inadvertently discharged from a containment basin and ended up in the river. In a 2010 consent decree reached as his brother was running for governor, he agreed to pay $17,000 to settle alleged environmental violations but reserved the right to challenge any damages sought by DNR for the fish kill.

DNR officials estimated that 31,000 fish were killed along a 16-mile stretch of the river and ordered Branstad to pay $61,000 in restitution. An administrative law judge upheld the order, as did the Natural Resources Commission.

But a judge concluded the DNR erred because it did not follow American Fisheries Society guidelines for calculating the fish kill as required by administrative rule. DNR officials had said its method was based on those guidelines and used biologists’ expertise to apply them to the circumstances of each case as they allow. After the ruling, DNR cut Branstad’s restitution order to $5,300, based on 2,233 dead fish that were actually counted.

Branstad sought reimbursement for attorneys’ fees, which can be awarded to parties who prevail in state enforcement actions. District Judge Rustin Davenport denied the request, ruling that a reasonable person could agree with the DNR’s initial estimate even if it didn’t follow administrative rules. Davenport, an appointee of former Gov. Chet Culver, added that the fees weren’t justified because “it cannot be seriously argued that these were the only fish killed as a result of the silage runoff.”

The appeals court overturned Davenport’s ruling, saying Branstad’s action forced the DNR to acknowledge mistakes.

“The future fish kills counts will be more accurate and follow more closely the methodology the agency has adopted,” wrote Judge Gayle Vogel, appointed by Branstad in 1996.

Baskins, the DNR spokesman, said the agency would calculate fish kills the same way it always has but provide more detailed documentation of “exactly what we did and why” on future assessments.

State lawyers representing the DNR had argued that ordering attorneys’ fees would have a chilling effect on their efforts to seek damages against people who hurt wildlife. They’re reviewing their options, which include asking the Iowa Supreme Court for further review, a spokesman for the Iowa Attorney General’s office said.

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Read the decision: https://www.iowacourts.gov/About_the_Courts/Court_of_Appeals/Court_of_Appeals_Opinions/Recent_Opinions/20150408/14-0205.pdf

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