Suit filed in drainage dispute

MOORLAND – A dispute over how much land can be included in a tax-exempt drainage right of way has led the Webster County Board of Supervisors to file a lawsuit in Iowa District Court against an independently managed drainage district located between Moorland and Otho.

The independent board of trustees for Drainage District 96 has established a right of way that extends 100 feet from either side of the center of the district’s nearly 16 miles of open ditch, which is more land than should be allowed, according to the supervisors.

Webster County Drainage Clerk Doreen Pliner said in a typical drainage district, the right of way only includes the ditch, and does not extend out onto the banks. An average ditch is about 65 feet wide, she said.

But the district board of trustees maintains that this land is needed to allow work to be done on the drainage ditch.

In May, the trustees approved the right of way based on an engineer’s report, after holding a public hearing.

The district alleges this is not an “expansion” of the right of way. It simply codifies what was not written down before.

“(The supervisors) have been exempting just the open ditch, which is about 60 feet wide,” said Dale Gerkin, chair of the board of trustees. “But the law requires they exempt the total right of way, not just the ditch.”

The supervisors objected that the report did not satisfy the requirements of the Iowa Code.

The report “does not reflect the land actually taken for drainage purposes; and is nothing more than a veiled attempt to eliminate certain lands from taxation, which is not the purpose or intent behind the establishment of right of way for a drainage improvement,” according to the supervisors.

The lawsuit asks the court to find the engineer’s report out of conformity with Iowa Code, declare that the “expanded right-of-way” is not taken for drainage purposes, and declare the trustees’ approval of the right-of-way invalid.

This district is one of the few managed by its own board of three trustees instead of directly by the Board of Supervisors, said Supervisor Mark Campbell.

Gerkin said the district has been separately managed since the 1970s. He said the right of way has never been properly recorded for the 100-year-old district.

“When the drainage districts were developed, there was never an easement recorded for the drainage district for the right of way,” Gerkin said. “When we’d have contractors come to do work, they didn’t know exactly what area they could work in.

“We’d like to have the dirt pushed out so it would be relatively level on the side of bank,” he said. “We had trouble with our last contractor. Every day we’d have to go out and have him push it out further.”

The 100-foot distance from each side of the ditch leaves about “60 to 70 feet of ground on the bank on which to maneuver equipment and on which the ‘spoils’ (dirt excavated and cleaned out of the ditch) can be deposited,” according to the drainage district’s answer filed with the court.

Pliner said only the ditch itself is typically exempted from taxes.

“The right of way is what’s tax-exempt right now. That is the actual width of the ditch itself, where you can’t farm it. You receive no income off it,” Pliner said.

The space beyond the banks of a drainage ditch can be used as farm ground or for the Conservation Reserve Program, she said, and only rarely is disrupted by drainage work. When work is needed, farmers will typically not farm the land near the bank, or just reseed it afterwards if the land is CRP.

Along the banks, “they still receive a crop off it or an income off it, except in the once every 20 years when they come in and do a cleanout,” she said.

When a full cleanout of the ditch is needed, “We notify the landowners ahead of time, like in spring we let them know we’ll be working on ditch, and they won’t plant crops,” Pliner said. “They usually stay back about 60 feet.”

The right of way gives the right of ingress and egress across adjoining land, and the right of access for maintenance, repair, improvement and inspection, according to Iowa Code.

One unfortunate aspect of the case, according to Gerkin, is that the landowners in District 96 will end up paying for both lawyers.

“Our attorney is paid by drainage tax dollars, and their attorney will be paid by property taxes,” Gerkin said. “The people who pay in 96 will pay a portion of the attorney who is trying to sue us.”