- Associated Press - Friday, November 6, 2015

DES MOINES, Iowa (AP) - Gov. Terry Branstad’s brother must pay legal fees from his challenge several years ago to the state’s calculation of a fish kill linked to his cattle-farming operation, the Iowa Supreme Court said in a ruling Friday.

The high court’s ruling, which reverses a lower court’s decision, means Monroe “Monte” Branstad will not be reimbursed about $70,000 in attorneys’ fees incurred from his challenge to the Iowa Department of Natural Resources.

Branstad had argued he was entitled to have his legal fees covered because he successfully challenged how the state calculated a 2008 fish kill linked to his farm near the Winnebago River. The Forest City man had previously acknowledged that sweet corn silage leachate, a pollutant, had inadvertently discharged from a containment basin on his farm into the river.

His challenge lowered the fish kill total from 31,000 dead fish along a 16-mile stretch of the river to about 2,200 dead fish that were actually counted. It also lowered the restitution from about $61,000 to $5,300.

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. A spokesman for the Attorney General’s Office declined to comment on Friday’s ruling.

The district court disagreed with Branstad’s argument to cover the legal fees, but the Iowa Court of Appeals later overturned that. The three-judge panel unanimously decided the challenge “served the public good” by correcting how the DNR counted fish kills. The DNR disputed that at the time, saying it properly followed its procedures and hadn’t changed them.

The Iowa Supreme Court said Friday its decision wasn’t based on the merits of who won the initial challenge and that the Iowa Natural Resources Commission, which oversees the DNR, properly conducted its work in investigating complaints about the fish kill. That work under Iowa code exempts the state from having to pay attorneys’ fees in such a case.

Christine Branstad, Monroe Branstad’s daughter and his attorney for the appeal, said the ruling could stop someone in Iowa from challenging state government when a person is being ordered to pay a fee because the potential legal costs may rise above the initial fee.

“This decision affects individuals, farmers and small businesses seeking to challenge government actions, specifically administrative actions,” she said. “I’m concerned about the effect of this decision on access to justice.”


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