*1 theory that Blessum not deal her did the law- honestly he
her reinitiated relationship false
yer-client upon the based a will
representation she needed prop- children inherit her
assure her would basis, too, substan-
erty. I conclude On this Bles- supported finding that
tial evidence thereby dishonesty and engaged
sum fiduciary duty his to Stender.
violated find juror a reasonable could
Because acquired he used information
that Blessum rela- scope lawyer-client
within the during disadvantage
tionship to Stender’s dishonestly and that Blessum
the assault lawyer-client relationship as
reinitiated the relation- pretext beginning a sexual theory liability
ship, based fiduciary duty should
breach jury. submitted
been
III. Conclusion. I I find expressed,
For the reasons have appeal. reverse I would
merit Stender’s negligence
the directed verdict both for a fiduciary-duty issues and remand
new trial. JJ., join this
Wiggins Appel, dissent. Brakke
Tom BRAKKE Rhonda Lodge, Ridge Hunting Pine
d/b/a/ McBra, Inc., Appellees, NATURAL DEPARTMENT OF
IOWA Re Natural
RESOURCES Commission, Appellants.
source
No. 15-0328 of Iowa.
Supreme Court
Filed June *4 Miller, General, Attorney
Thomas J. Dorff, Attorney L. Assistant David Gener- al, appellants. Douglas A. Brommel E.
Rebecca Graves, Brown, Winick, Gross, Gross Schoenebaum, P.L.C., Des Baskerville Moines, appellees. appealed, the landowners
APPEL, The DNR Justice. expressed For cross-appealed. the reasons presents challenge by land- This case below, DNR lacked statu- we conclude the an order issued emergency owners emergency order tory authority issue an Department Re- of Natural Iowa quarantine on land used as imposed (DNR) the landowners sources order also deer-hunting We preserve. a whitetail formerly as a white- quarantine land used the action of the DNR did after whi- conclude years for five tail deer test- property on the impermissible deer harvested amount tetail disease, or wasting for chronic positive ed Consti- under United States property CWD, order re- light or the tution Constitution. main- repair quired landowners chal- rulings, we the DNR’s these conclude an electric fence around tain failure to re- lenge the district court’s period. for the evi- open the record receive additional the DNR challenged affirm The landowners is moot. therefore dence We ap- emergency order an administrative court. judgment district Proce- Iowa Administrative peal under 17A.19(10) Act, Iowa section dures Code Back- I. and Procedural Factual *5 judge An issued administrative law ground. decision, finding proposed
a the DNR statutory authority to issue the the lacked A. Introduction: Positive CWD Test emergency imposing quarantine order Ridge Pine from Deer Harvested at the Upon by the Iowa Natural the land. review 1990s, Hunting Lodge. Tom In the and (NRC), NRC Commission the Resources Brakkes) (the Brakke established Rhonda finding the instead that ruling, reversed in deer-breeding Clear a whitetail farm statutory authority the DNR had sufficient Lake, bought they Iowa. Pine ap- the support to order. The landowners (Pine Hunting Ridge) in Ridge Lodge pealed. Iowa, $575,000.1 County, Davis the The district court NRC. reversed the hunt- purpose purchasing Brakkes’ emergency the or- The court held DNR’s lodge provide an market” ing was “end irrational, wholly un- illogical, der was and they Clear Lake for the deer raised the justifiable under Code section purchase, After the the property. Brakkes 17A.19(10)(0 acting the DNR was because improve $200,000 an spent additional legislature’s authority. grant the outside constructing a cabin and property by court, however, rejected the landown- including investing fencing, additional argument that DNR’s ers’ separate and south- fence the northern compensable order amounted prevent- of the property, halves ern under the United States and Iowa Consti- entering from from deer the north side ed Upon entering judgment, tutions. and south vice side record to reopen court also refused to versa. to present the DNR additional evi- allow property licensed as whitetail was that the certain dence landowners received deer-hunting Iowa Code preserve under indemnity payments from the United (USDA). majority 484C. The of the deer the Department Agriculture chapter States pur- property. For purchased half the south half of the 1. The north McBra, by through purposes appeal, owners will 1031 ex- chased Inc. change, personally be referred to as while Tom Rhonda Brakkes. and from placed Ridge September at Pine came 2012 Agreement. Brakkes B. On breeding their Clear Lake farm. September DNR Brakkes signed “Agreement an for Chronic Wast- susceptible deer are CWD. Whitetail ing Recovery Plan Ridge Disease at Pine type spongiform CWD transmissible Lodge” (Agreement). Hunting Under prion encephalopathy, also known as dis- Agreement, the Brakkes were allowed prevent The DNR seeks to ease. carry planned Ridge out hunts at through voluntary agree- Pine spread CWD breeding statutory September 8, 2012, ments with between farms and scheduled regulation deer-hunting pre- Brakkes, however, whitetail December 2012. The serves. See Iowa Code 484C.12. were install required jointly with DNR electronic fence inside the perim- Originally, participated in a Brakkes existing eter of surrounding fence Pine voluntary program CWD at their Clear Ridge, split evenly with the costs between breeding they Lake farm so could trans- Ridge. the DNR Pine After construc- port and sell their deer to others. With fence, tion of the electric the Brakkes were hunting operations success their at Pine solely responsible for fence repair in 2012 enroll- Ridge, the Brakkes ceased DNR maintenance. staff was to conduct breeding ment of the Clear farm in Lake weekly perimeter and inspections, fence voluntary program they CWD because repairs all identified longer selling no staff were the business Brakkes, be submitted operations. writing deer to other Brakkes however, samples completed by the twenty- continued to Brakkes within submit from all testing deer Pine four harvested hours. Ridge required section by Iowa Code Further, Agreement provided 484C.12. *6 Ridge completely Pine be depopulated 16, the notifica- On June DNR received all elk no January deer and later than testing tion from a that a deer CWD lab 2013. All animals for were be tested for Ridge positive from Pine tested CWD. disposed of in CWD and accordance with CWD-positive originally The deer came applicable regulations at the cost. Brakkes’ breeding from Brakkes’ in Clear the farm depopulation Once the was Ridge Pine confirming diagnosis, After the Lake. the Brakkes, complete, expense, the at their July DNR notified the on 19. Brakkes agreed facility to clean and disinfect the case, captive Prior to this no or wild deer compliance Finally, with DNR the rules. positive for had tested Iowa. ever CWD parties to a future agreed operational plan law, Department Iowa the Under Iowa developed conjunction to “be the with Stewardship of Agriculture and Land depopulation complete.” after (IDALS) regulates whitetail deer deer Agreement The term "of the the was from farms, regulates while the DNR deer until January date execution deer-hunting preserves.
whitetail One deer Pine additional harvested at 170.1A(2); 484C.2(2). § On Au- Code id. Ridge positive in December tested gust permission IDALS received hunts, CWD. After the conclusion of the Brakkes to kill the and some test deer In Ridge depopulated Pine all its deer. the Lake at the Clear farm. One deer April 2013, all feeders were farm disinfected positive Clear Lake tested CWD. bleach, buried, point, At with excess feed was and some notice of IDALS issued a Agreement all ful- quarantine for the the terms Brakkes were Clear farm. exception—the parties Lake filled one did with Hearing agreement oper- on a “future E.The an Administrative and not reach the Natural Resource Commis- plan” depopulation after the ani- ational Appeal. sion mals. appealed Introduction. The Brakkes April On April 2013 Letter. C. In emergency order on June 25. a letter DNR. wrote
the Brakkes initiating appeal, letter the Brakkes stated, letter, you “As emergency order violated their claimed know, Ridge Pine the area utilized and United States Iowa constitutional hunting Hunting Lodge preserve is as a rights property rights other and because (5) quarantine.” five subject year to a (1) jurisdiction over the DNR lacked Pine “com- Brakkes letter noted that the had Ridge longer hunting no once was plied requirements Septem- all (2) preserve; the terms agreement.” The letter an- ber emergency compensa- order without if response no were received nounced taking; tion an were unconstitutional DNR, regard Brakkes from the would arbitrary, actions ca- DNR’s were requirements Agreement as sat- all pricious, and an abuse discretion. further isfied. Brakkes announced why cited six Brakkes reasons operating no they longer Pine would arbitrary capri- DNR’s actions were deer-hunting pre- Ridge as a whitetail First, they only cious. claimed limited serve. species may of deer contract number CWD limit meaningfully and CWD does By June the DNR discovered Second, growth species. Brakkes gates Ridge standing open at Pine were highly that CWD is not asserted infectious portions of the fence were dam- reservoir of there CWD the aged had been removed. Third, be fully wild that cannot eliminated. claimed more Brakkes there are harm- Emergency Order. On June D. ful deer for diseases affect which the issued the DNR order not impose DNR does such drastic meas- stop their decon- require Brakkes Fourth, ures. asserted Brakkes surrounding Pine struction fence materially emergency order would not af- immediately por- Ridge and restore the *7 Fifth, spread fect the CWD. the Brak- The damaged. tions of the fence that were previously kes the told claimed DNR them Brak- emergency required order also the removing no issues it had with the keep to close and all of the kes closed alleged Finally, fence. the Brakkes gates the DNR to authorize to access and Ridge separated Pine into was two sec- Ridge for duration in Pine a limited order property tions half of the and about was present on any may kill be the deer that exposed never CWD. Finally, emergency re- property. order hearing. 2. ease A Contested contested agree quired Brakkes submit and hearing beginning case was held No- plan designed to execute a ensure vember 18. Dale Garner DNR testi- within, not quarantined be and CWD fied he understood that the USDA indem- beyond, Ridge. spread Pine nification plan compensating owners of gates June the Brakkes closed the On positive deer as a killed result CWD Ridge repaired the On at Pine and fence. longer tests no available. was Neither Iowa 11, however, seen general deer in June wild were nor DNR or the IDALS had plan. an indemnification inside the fence. that, power as presented granting impose
The DNR evidence them the five- quarantine, result of the market year quarantine preserve value on “the all and as Ridge property remaining Pine real had de- animals in- located within the $165,000. irrational, by appraiser clined The DNR’s preserve” illogical, was fected wholly unjustifiable testified that she not had calculated the because the inter- extended, lost business in not pretation enlarged, the Brakkes’ changed value being to operate legislature’s able intent. as hunting preserve. Appeal NRC. February On presented from
The Brakkes evidence appealed proposed DNR decision. experience finance with in On expert hunting April parties submitted a sec- operating joint- leases that the ond stipulation regarding income Pine the submis- Ridge any year quar- for the without sion of parties additional evidence. The. restrictions, “disagree[d] antine or been they would have noted about relevan- $157,537. operated cy finding,” If Brakkes had but “[a] wild har- deer thp Pine a farm Ridge hunting as instead in County, early vested Allamakee preserve $22,021. they would have lost positive The December 2013 for Chronic tested - expert five-year Wasting finance parties calculated-the to- Disease.” The submitted NRC, hunting tal Pine briefs Ridge income of as a an unrecorded preserve $917,309, five-year hearing May while held on Ridge total of Pine farma would income as On May- upheld the NRC the DNR’s $100,465.If negative oper- the Brakkes order. commission found free-range Ridge hunting Pine as a ated not their burden had met no operation, fencing captive ani- demonstrating that Iowa Administrative mals, five-year income would be 571—115.10, authorizing Code rule cross-examination, $143,307. the fi- On five-year quarantine preserve “on the not expert nance he was a certi- admitted all remaining animals located within the public ap- fied or a accountant licensed preserve,” infected was not authorized praiser, analysis he conducted chapter 484C. commission admitted was not a valuation. business that chapter explicitly does not state 484C January hearing quaran- After final land is to be tined, the Brakkes and but it to because the entered a did need stipulation duty gave to submit the DNR the additional evidence. statute also stipulation prevent spread stated that December commis- CWD. held, common the Brakkes had all the re- sion a matter of sense killed evidence, maining Ridge quaran- Pine given deer at and the DNR and the scientific prevent tine on samples required all adult collected land spread any deer. CWD was CWD. detected *8 samples. of NRC Action. F. Review Judicial judicial'
On The for review February petitioned law Brakkes administrative (ÁLJ) 27. On judge proposed her of the decision on June issued decision. NRC’s jurisdic- for to The DNR lacked DNR moved leave ÁLJ ruled December tion to the NRC. to order. The evidence present issue additional had volun- chapter alleged ALJ 484C The the Brakkes determined Iowa DNR Code at the Clear only quarantine tarily depopulated to deer authorized DNR their whitetail,” 2014 and August not the were preserve “diseased land. Lake farm in Thus, by the $917,100 interpretation paid 484C.12 indemnification DNR’s as court.” Renda motion. same results the district Brakkes The resisted
USDA. Comm’n, Rights motion Iowa Civil N.W.2d court denied the v. The district (Iowa 2010). 18, stating anticipate may court it did not The district December any agency evidence grant for additional if the action properly the need relief to the issues. rights for it address prejudiced order substantial action agency and if the' falls petitioner ruling court issued The district criteria in section one listed within commis- reversing the February (n). 17A.19(10)(a)through ac- additionally ruling the DNR’s sion the United taking under tions were agency’s interpre defer to “We court
States or Iowa Constitutions. legislature in- of law has tation when the vested with the DNR had been found interpretation in the authority clearly the DNR’s vested that terpretive and thus only Kay-Decker, discretion.” interpretation agency’s law would “irrational, 222; Renda, 11; or illogical, it reversed if was 784 N.W.2d at N.W.2d court, however, 17A.19(11)(c). unjustifiable.” § wholly also We see Iowa Code irrational, wholly illogical, and was interpretation agency’s found will overturn inter- for the DNR to have unjustifiable if the only agen it has law when discretion authority preted it the give “irrational, illogical, cy’s interpretation hunting preserve quarantine unjustifiable.” wholly Iowa Code specified authority only chapter 17A.19(10)(/,);Renda, 484C § N.W.2d at 11. white- preserve quarantine “diseased 484C.12(1). tail.” Code While See Iowa The standard of review consti prevent legislature intended claims, including respect tutional with CWD, clearly spread of did legislature City takings, is de novo. Harms v. Sib give not intend to the DNR unfettered 2005); (Iowa ley, Blu 702 N.W.2d quarantine any land that came authority City Inv. v. West Des menthal Trusts The court into contact infected deer. 2001). (Iowa Moines, 636 N.W.2d actions were not held that the DNR’s also Brak- because invasion Authority Statutory III. specifi- both property temporary,
kes’
Quarantine
Land Where Whi-
cally
taking per
and also as a
se
Positive
tetail Deer Test
fac-
taking involving the Penn Central2
CWD.
tors.
parties
A.
con
Introduction.
appealed
court’s
The DNR
the district
scope
“quarantine”
of DNR
au
decision,
test
cross-appealed.
thority
section
under Iowa Code
484C.12.
II.
Standard
Review.
point
quarantine
Brakkes
out the
au
thority
only
preserve
agency
deci
extends
whitetail
“Judicial review
deer,
suggests the
power
section
while the DNR
governed
sions is
Iowa Code
deer nec
Bd.
whitetail
Kay-Decker
17A.19.”
State
(Iowa
Review,
essarily
power
includes the
to exclude deer
Tax
2014).
from reserve
where CWD has
“apply the standards of section
We
17A.19(10)
if
discovered.
to determine
we reach the
been
*9
York,
Transp.
City
L.Ed.2d 631
Co. v.
New
Penn Cent.
98 S.Ct.
Id. statute defines a has promulgated CWD. The DNR hunting preserve as “land where land- rule power impose quar- related keeps preserve owner part whitetail as antine as a result of an outbreak of CWD. business, if purpose business’s provides, The rule provide persons opportunity with the A positive for wasting test result chronic hunt preserve whitetail.” Id. disease in a will result minimum of a 484C.1(6). § five-year quarantine preserve Iowa Code section 484C.12 concerns remaining all animals located within the 484C.12(1) testing for pro- CWD. Section preserve. No animal infected movement vides, in or preserve out shall occur purchased, Preserve whitetail are during quarantine period. confined, released, propagated, or sold Iowa Admin. Code r. 571—115.10. by a hunting preserve shall be free language of the rule is different reportable diseases for considered wild- than .that Iowa Code under section ... department may provide life. 484C.12(1). 484C.12(1) section Iowa Code quarantine for preserve of diseased provides may provide for the DNR whitetail that the health of threaten ani- “diseased, preserve white- populations. mal tail,” for provides five-year while the rule 484C.12(1). 484C.12(2) § Section re- “quarantine on and all preserve re- plans lates to eradication diseases. It maining within animals located the infect- provides, Compare preserve.” ed Iowa Code landowner, or the landowner’s 484.12(1), Admin. r. Code veterinarian, epidemiologist des- 571—115.10. ignated by department develop shall plan eradicating reportable C. dis- Positions Parties. The among argues ease whitetail DNR3 popu- the district court erred collectively parties 3. Both the DNR will and the NRC were named refer to both as the convenience, parties litigation. For we *10 argument response to the Brakkes’ irra- In that the DNR was it concluded when meaning of Iowa sec- plain Code that the to tional, wholly unjustifiable illogical, and DNR clearly deprives tion 484C.12 as section 484C.12 interpret Iowa Code case, argues jurisdiction in this the DNR authority quarantine to granting the DNR a whole. the statute as we must view Ridge. Pine “hunting context, legislature’s use “quaran- that the argues DNR word The not “preserve whitetail” do preserve” and 484C.12(1)must section in Iowa Code tine” respect intent legislature’s with reveal to the only applying as understood See id. The “quarantine.” the term originally Pine that were whitetail deer restricting access DNR asserts physical property to the Ridge, also but “quarantine.” is inherent the term space Ac- itself, present. no deer are when even evi- to the points also scientific The DNR DNR, that cause prions cording to the continuing showing it dence introduced environ- persist in the are known CWD The prion-contaminated areas. virulence infected time even after all for some ment disputing the Brakkes’ DNR concludes or the removed deer have been of CWD a disease characterization hunting pre- operating as has ceased populations on deer impact low killing all The asserts that serve. DNR industry. hunting disinfecting the cleaning and deer and then agency Brakkes state when an only part fully effective are premises juris- authority, it acts without exceeds of CWD. response to outbreak diction, therefore such acts are void. provide order to DNR maintains Here, argue that under CWD, wild deer effective containment 484C.12, language of Iowa Code section premises for an kept out must be only “pre- jurisdiction over has DNR pre- of time order period extended “hunting preserves,” serve whitetail” becoming them from infected. vent id. defines. See which 484C.1(6), (8). § Brakkes assert otherwise, Interpreting power only impose DNR has asserts, irrational, illogical, is itself preserve “quarantine of diseased whitetail” unjustifiable ignores wholly it because popula- health animal threaten legislature intent of the express 484C.12(1). § tions. Id. particular threat combat due CWD animal poses to the of Iowa’s health dispute the DNR’s focus The Brakkes populations. populations, including the wild The Brakkes “quarantine.” on the word particular out no other points The DNR cannot be the word suggest the focus but chapter 484C disease is mentioned “quarantine instead “quarantine” but CWD, special indicating disease section whitetail” under diseased legislature. Code concern to the See Iowa 4840.12(1). as of Brakkes note that DNR, it would According 484C.12. to the date of the June legislature so con- make no sense order, any “diseased they did regu- deny Ridge, CWD to the state Pine cerned with preserve whitetail” hunting preserve. latory ability protect longer authorities the itself was no Brakkes, lose path- agencies population primary According from a whitetail disease, licenses when license jurisdiction name- over way for transmission of the being ends, only exception with the ly exposure prion-contaminated land. age. singular suggests us- DNR unless context
533 legislature provides expressly required the for con- date rule by a is to show clear tinuing jurisdiction. convincing evidence that the rulemak- ing beyond was the agency’s statutory au dispute signifi- The Brakkes the also thority. Davenport Cmty. Sch. v. Dist. of the cance on of Iowa’s CWD health- Rights Comm’n, Iowa Civil 277 N.W.2d According of population whitetail deer. (Iowa 907, 1979) 910 (suggesting the stan Brakkes, already a low the exists at CWD dard is the same as “substantial evi in the population, level deer no wild dence”); Dep’t Schmitt v. Iowa Soc. showing ag- negative scientific evidence of Servs., (Iowa 739, 1978) N.W.2d 744 263 gregate effect of on popula- CWD deer (analyzing agency’s whether administrative argue any tions. The Brakkes also “beyond rule authority delegated the was mitigated by be harm CWD causes can it”); Bonfield, Arthur Earl Iowa ordinary, disease-management animal Administrative Procedure Act: Back techniques—a five-year quarantine is not Construction, ground, Applicability, Pub scientifically justified. Law, lic to Agency Access the Rulemaking that, The Brakkes stress before Process, 60 Iowa L. Rev. 908-09 order, is- DNR had never (1975). quarantine any nor instructions sued indicating quar- there was a grant While deference to we agree- property. antine Under the agency’s interpretation of the statute when parties signed, permit- ment the deer were legislature has clearly vested that in Ridge, thereby enter Pine ted and leave terpretation in agency, ultimately suggesting quarantine place. not in interpretation and of construction a statute argue The Brakkes also that because the is an issue for the court to decide. Office of ability it not DNR believed did have the Bd., Consumer Advocate v. Utils. Iowa 744 gates it Ridge close the at Pine once (Iowa 2008); N.W.2d 643 accord gates open, learned were did Schmitt, 263 In interpret at N.W.2d quarantine Ridge had believe Pine ing authority of grant statutory jurisdiction or to take action on own its beyond agency, we “will not look the ex against Ridge. Pine DNR’s claim if press terms the text of statute existed a matter of law plain meaning statute clear.” prior' to the surrénder their Brakkes’ Inc., Holdings, Neal Annett v. 814 N.W.2d is, Brakkes, according license belied (Iowa 2012). plain 519 A is not by the facts. or “if clear reasonable minds differ could D. Framework Assess meaning or be as to uncertain Validity ment the Substantive Hill, Carolan v. 553 statute.” N.W.2d Agency agency “pre Rule. An rule is 1996). (Iowa provisions “The plain the party challenging sumed valid unless by statute cannot altered administrative proves rule “rational agency” ‘a could Schmitt, rule.” 263 N.W.2d not conclude the rule was within its dele ” gated authority.’ agency possesses Ad An com Outdoor no Meredith vert., Dep’t Transp., Inc. v. Iowa 648 mon or powers. inherent law Branderhorst (Iowa 2002) Comm’n, Milh State (quoting Highway N.W.2d v. Iowa 1972). Vorhies, (Iowa power olin N.W.2d N.W.2d (Iowa 1982)); power granted see Iowa agency also Med. Soc. v. limited to the 40; Nursing, Bd. also Holland v. N.W.2d statute. see (Iowa 2013). State, 161, 163- party seeking to invali- 253 Iowa Likewise, ‘unreason- may ignore produce construction would court or ‘un- impose or ‘absurd’ or language a statute and able’ ‘unworkable’ clear guise ‘unlikely’ clearly of con- inconsis- through just’ result
its own ideas *12 struction, way to if it best purposes policies even is the tent (footnotes achieve a de- 115-19 promote public question.” welfare and act in Id. at omitted). Holland, at 164. sirable result. is to It at the outset important E. Discussion. distinguish interpreting ambigu between interpretation Straightforward statutes to results ous absurd avoid straightforward A language. legislative to declining terms of a enforce literal language of Code sec- reading of the universally absurdity. to avoid It is statute supports posi- tion 484C.12 the Brakkes’ statutory accepted that terms are where “quarantine” cannot be tion. The term interpret ambiguous, courts should statutory language from the
wrenched
in a
fashion to
reasonable
avoid
statute
term
is modi-
“quarantine”
it. The
follows
46:7,
(“All
§
results.
at 279
absurd
See id.
phrase
“of
by
fied
diseased
a
agree
finding
courts
apparently
484C.12(1).
§
It
See Iowa Code
whitetail.”
ambiguity opens statutory construction
allow for
of nondi-
does not
familiar,
interpretive
range
the full
that are not
seased whitetail
whitetail
tools.”).
preserve whitetail.
in
absurdity
The true
doctrine
argues
logical
The DNR
the natural and
a
Under the ab
volves
different scenario.
reading
produce
would
results. The
absurd
doctrine,
surdity
court declines
follow
question
absurdity doc-
arises whether the
the literal terms of the statute
avoid
support
trine should be invoked here to
45:12,
§
at 115. As
absurd results. See id.
DNR’s administrative rule and the
Sutherland,
by
noted
a different
upon
it is
order
question
proceed upon
from
courts
how
based.
finding
ambiguity.
Id.
is where the
Here
absurdi-
2. Overview
doctrine
absurdity doctrine becomes controversial.
good
ty.
absurdity has a
The doctrine
may
To what extent
a court evade or
pedigree.
Statutory Construc-
Sutherland
ignore the literal
terms
statute to
instance,
tion,
ordinarily,
for
notes that
poor pub
simply
avoid a result that is not
statutory
ambiguous
language should be
but is
it
policy,
lic
so unreasonable that
in a
produces
construed
fashion that
the legis
could
have been intended
Singer
2A
result.
J.
&
reasonable
Norman
limit of
lature
reflects the inherent
Statutory
Singer,
Shambie
Statutes &
process
various
legislative
appli
to foresee
(7th
45:12,
104-06
ed.
Construction
cations of a statute?
2014)
Statutory Con-
[hereinafter
rev.
jurisdictions
3.Caselaw
other
goes
But
further.
struction].
Sutherland
applying absurdity doctrine. The cases of
Sutherland,
According
may
courts
use
Supreme
the United
Court
States
a “variant of the ‘reasonableness’ rule
approach
between a
oscillated
textual
ambiguity
even absent
... when an act’s
legislative
parsing
hews
a close
texts
clear,
plain,
meaning produces
literal
approach
a more
purposeful
unintended, absurd
Id. at 115.
result.”
construction
statutes.
Sutherland instructs that courts find it
goes
for
departure
Support
absurdity
“fundamental”
from liter-
doctrine
justified
al
as far as
In
construction
“when such a back
United States
Kirby,
hiring
Court
had occasion
the rector. Id. at
absurdity
ponder the
doctrine.
U.S.
markets, destroy not to them. although in commentary, appli- As noted Trinity, absurdity principle King—unlike Holy cation contest- Kirby, courts, terms even those who the broad ed federal advo- and Public Citizen where
537 approaches textual or cate literal endorse avoidance results is a con unreasonable contexts; in at least See principle some strategy. interpretive ventional But this is Dougherty, Absurdity M. Veronica not always true. As the Hawaii noted Limits Defining Literalism: the Absurd Court, “departure from literal Interpreta Result Principie Statutory justified construction when such con tion, 127, 44 L. Am. U. Rev. 128 & n.6 struction produce would absurd and (1994) Dougherty]. in For [hereinafter result,” unjust clearly inconsistent with the stance, in v. Laundry Green Bock Ma v, purposes of the statute. Pac. Ins. Or. Go., chine staunch textualist Scalia Justice Ins., Auto. 53 Haw. 490 P.2d 901 rejected interpretation of literal Federal (1971). There many áre state court cases 609(a)(1) Rule of Evidence because it utilizing absurdity doctrine whén the produce would absurd 490 U.S. results. plain meaning language does not 504, 527, 1981, 1994, 109 S.Ct. 104 L.Ed.2d ambiguous, seem some of quite which are (1989) (Scalia, J., see concurring); See, e.g., State, remarkable. Maddox v. Dougherty, 44 Am. U. L. at 153-58. Rev. (Fla. 2006) So.2d (holding Similarly, Judge Easterbrook has written introduction of prohibiting traffic that the language may of a statute be bent “in any trial” any citations limited to trial only produces when the text absurd re dealing directly with offense); the traffic Inc., Honeywell v. sults. Neal 33 F.3d Mass, Wallace, Commonwealth (7th 1994), abrogated by Cir. Graham 730 N.E.2d (interpreting Cty. Soil & Conservation Dist. v. Water Wilson, phrase States ex rel. “trial United merits” to U.S. include the. S.Ct. judgment); L.Ed.2d default Spencer, State v. *15 (2005); see 44 Dougherty, Am. L.U. Rev. 535, (find 765, (1970) N.C. 173 S.E.2d 774 Posner, by 128 As Judge n.6. noted even ing “standing” in obstructing the' street' interpretive literalists in realize that “the walking street); traffic includes in the (we terpreter is compelled) free say would re Brewing Narragansett Co. re: Falstaff in depart the direction of sense” where Fire, 1047, (R.I. Brewery A.2d 1050 637 interpretation yield strict would re absurd statute, 1994) (holding authorizing release States, sults. Cent. S.E. Pen & Areas S.W. of juvenile of also “name address” Foods, Inc., Lady sion Fund v. Baltimore record). of underlying authorizes release (7th 1992). 960 F.2d Cir. If anything, absurdity case for the in many There is caselaw states may stronger doctrine be in state well. supports absurdity form of some than in legisla- courts federal courts. State See, Townsell, e.g., doctrine. Brock v. 309 part-time generally tures meet basis. 179, (Ark. 2009); 186 S.W.3d Collec Prof'l They generally employ do mecha- Lauron, Cal.App.5th tion Consultants v. 8 public hearings, of nisms extensive mar- 419, 958, (2017); 214 Cal.Rptr.3d Peo 433 kups, staff that have charac- review (Ill. Johnson, 615, ple v. 77 N.E.3d 619-20 congressional past. action in terized 2017); Cmty. Consol. Sch. Dist. No. v. 210 Further, large legislation of volumes state Mini, 382, 75, 55 Ill.2d 304 N.E.2d 78 passed waning are in often hours of a (1973); Peterson, v. Commonwealth session, legislative flurry of with a last 1166, (2017); Mass. 65 N.E.3d amendments, increasing minute thus Z.C., State ex rel. P.3d 2007). (Utah may passed cases, doubt, legislation of Many possibility no really ambiguity linguistic vetting. are full cases the without just other have done regarding absurdity. many as state courts Iowa caselaw over the decades. absurdity of our invoke cases Some statutory primarily a tool principle straightforward descrip A more Estate, Real interpretation. Mall See absurdity present tion of the doctrine was City Hamburg, 818 N.W.2d L.L.C. v. Olson, declared, in we ed v. where Case (Iowa 2012). interpre The use of give should The court effect a number tools determine tive letter, spirit law than the rather court textually plausible options the especially so where adherence really application of choose is not should or absurdity, injus letter result would doctrine, represents absurdity but contradiction, tice, or would lead to approach endorsed even conventional plain purpose would defeat opponents absurdity doc textualist act, provision or where inserted Manning, Absurdity trine. See John P. through inadvertence. Doctrine, 116 2419-20 Harv. L. Rev. 234 Iowa survey A Drake nn.122-23. recent & (1944). Holy Trinity, and Kirby, Public demonstrates that members Law Review has Citizen utilize what one scholar called beyond court look frequently of this Jellum, absurdity.” D. “specific See Linda interpretation in the text of statute Why Specific Absurdity Tex Undermines Wallace, Does Past statutes. Karen L. L. tualism, Brook. Rev. Empirical Analy Predict the Future?: An Specific absurdity is terms when the literal Recent sis Court Use a broadly framed statute have been History as a into Legislative Window spe absurd result avoid narrowed Iowa, Statutory Construction in Drake cific Id. at instances. (“The L. 266-67 court has Rev. absurdity engaged specific We have a willingness to consider a wide exhibited analysis For on a number of occasions. help range might of sources that it inter instance, in we Hoyman, State invoked statute pret legislative consistent with scope absurdity doctrine to narrow intent.”). that criminalized fraudulent practices public in the context of records. apparent response suggestions As an *16 (Iowa 2015). 1, 863 14 statuto- N.W.2d cannot tools of construction to we use ry any criminalize language seemed to text, depart legislative clear we have knowingly regardless incorrect of entry, a circular work-around sometimes utilized significance the maker in- and whether we if in which declare that the statute Id. to deceive. at 8. We concluded tended results, must produces “am- absurd be scope of literally, read when See v. biguous.” Co. Sherwin-Williams breathtakingly broad.” statute “would Revenue, 417, Dep’t Iowa 789 N.W.2d of Id. at thus the term interpreted 13. We (Iowa 2010). n.8 But it is 427 & doubtful “false” in the statute to mean really clear into that a text is transformed entry with was made intent deceive. Id. ambiguous solely con- an- one based absurdity at 15. doctrine We thus used the sequences of In application. cases where scope of criminal statute. narrow the employ ambiguity, we circular we are real- doctrine, ly applying absurdity Bearinger Depart true Similarly, v. Iowa namely, overriding Transportation, the text ment we considered result, just an prescrip avoid intolerable as the could invoke a whether driver tion-drug in Kir- United States Court did defense before administrative Citizen, seeking to driver’s li- by, Holy Trinity, and Public tribunal revoke her
539 (2014). 844 N.W.2d the state frequency cense. We occurs with less than a matters, legisla narrowing noted that in criminal construction. expressly provided prescription-
ture
for a
recognized
We also
seem have
Yet,
at
drug defense. Id.
107-08.
a similar
statutes should not contain the seeds of
provided
was not
for in the
defense
admin
instance,
their own
For
destruction.
we
process
istrative
to license revoca
related
have stated that “when a
interpreta
literal
tion. Id. at 109. Under the driver’s license
tion of a statute results in absurd conse
statute,
revocation
revocation could occur
quences that undermine
clear purpose
“any amount
controlled sub
statute,
an ambiguity arises.” Sher
present
person.”
is
in the
Id. at
stance
107 win-Williams,
n.8;
lature
rule,
is,
by the DNR
it
of
that
suggested
as
Iowa Constitutions
entitled
States and
course,
so.
just
free to do
compensation.
them to
B.
Provisions.
Constitutional
Taking Under
Due Process
IV.
Takings
of the Fifth Amendment
Clause
or
Clauses
United States
provides
Constitution
United States
Constitutions.
Iowa
“private
shall not
taken
be
property
A.
Introduction. Under both
use,
just compensation.”
public
for
without
Constitutions,
and Iowa
United States
Const,
I,
Article
section 18
U.S.
amend. V.
just
government
required
pay
provides
Iowa Constitution
private
compensation when
“takes”
“[p]rivate
not be
property shall
taken
public
use.
property
U.S. Const.
just
first
public
compensation
use without
V;
I, §
Const. art.
18. The
amend.
made,
being
or
to be
secured
made to
Takings
overarching purpose
Clause
thereof,
damages
owner
as the
as soon
Constitution is “to bar
the United States
by
jury.”
be
shall
assessed
Iowa Const.
forcing
people
some
Government
I, §
art.
which,
public
in all
alone to bear
burdens
not assert that
stan-
Brakkes do
justice, should
borne
fairness and
the Iowa
takings
dard
under
Constitu-
a whole.”
v.
public
Yancey
as
United
tion is
than that under the feder-
different
1534,
(Fed.
States,
1539
Cir.
915 F.2d
takings
counterpart.
al
constitutional
We
1990)
Armstrong
(quoting
v. United
apply
therefore
the established federal
40, 49,
1569,
States,
80 S.Ct.
364 U.S.
takings, but
regarding
standards
reserve
(1960)).
L.Ed.2d
right
apply
these
in a
standards
Supreme
has
The United States
Court
than
fashion different
the federal courts.
types
takings.
two different
recognized
Kooima,
State
833 N.W.2d
type
direct government
first
involves
(Iowa 2013); Racing Ass’n Cent. Iowa v.
to “a
property
seizure of
amounts
(Iowa 2004).
Fitzgerald,
practical
posses-
[the
ouster
owner’s]
U.S.A., Inc., 544
Lingle
sion.”
v. Chevron
of the Parties.
C. Positions
Cit
528, 537,
U.S.
S.Ct.
caselaw,
point
ing federal
out
(alteration
(2005)
original)
L.Ed.2d
regulatory takings
occur when the
v. S.
(quoting Lucas
Carolina Coastal
(1)
owner
government
requires the
to suf
Council,
505 U.S.
112 S.Ct.
invasion,
permanent physical
no mat
fer
2886, 2892,
(1992)).
543 (1994) (involving permit rary con Laundry Kimball Co. L.Ed.2d nature. v. Unit- owner). States, 1, 7, A tak imposed property ditions ed U.S. S.Ct. (1949); ing may balancing also occur the L.Ed. 1765 United States Co., Transportation Petty 375-76, v. Motor factors Penn Central 327 U.S. 596, 598-99, (1946). City taking York indicate Co. New S.Ct. L.Ed. 729 104, 124, case, has U.S. cite a occurred. 438 98 S.Ct. Brakkes recent Arkansas (1978). L.Ed.2d 631 Fish Game & Commission v. United States, to familiar suggests government- factors be balanced under the which that (1) flooding may compensable. Penn Central test are the economic induced claimant, impact 519-20, regulation of the the U.S. 133 S.Ct. (2) (2012). in regulation the extent to the which L.Ed.2d 417 terfered with distinct investment-backed Brakkes also argue the emer expectations, the character gency regulatory taking order is a because government action. equivalent is the functional of ousting argue order emergency property
The Brakkes
the
the Brakkes
their
for a five-
per
regulatory taking
se
the
year period,
long
because
at least
as the
required
Brakkes to maintain
emergency
place. According
order
the
order
Brakkes,
gates
both the fence and the
at Pine
emergency
order hollows
Ridge. In
support
argument,
right
their
to “possess,
out its
use
dispose”
Loretto,
v. Teleprompter
property.
Brakkes
cite Loretto
of their
458 U.S.
419, 102 435, 102
Corp.,
Manhattan CATV
458 U.S.
S.Ct. at
repeat
3176. The Brakkes
Lor-
emergency
On
regulatory taking
balancing
the last Penn Central
based
DNR argues that
the character of
of
three Penn
Bor
Central factors.
government
weigh
action
not
Supervisors,
does
favor
Bd.
mann
of
(Iowa 1998);
of
taking.
points
The DNR
out
Craig
that the
see
A. Peter
son,
possession
‘Takings’
Brakkes
Regulatory
maintained
their
Land Use
Re
right
pos-
Ap
and maintained the
visited: The New
Court
sess, lease,
or sell
property.
Hastings
proaches,
L.J.
336-39
points
purpose
(sketching
to the beneficent
development
however,
council,
prohib-
takings
at 2889. A coastal
regulatory
caselaw since
Court’s
Central).
any
improve-
ited construction
habitable
Penn
property.
ments on the
Id. The land devel-
takings
se
per
Merits of
arguing the
oper sought compensation,
claim,
invasions
involving “physical
regulation, though
pursuant
enacted
or
“all
property”
deprivation
economi
law,
taking
”
valid
because
denied
use
land.
cally
productive
or
beneficial
economically
produc-
him
all
beneficial
takings
law
begin with
We
review
tive
of the land.
S.Ct.
use
by government
involving physical invasions
at 2890.
Loretto,
keyA
458 U.S.
regulation.
case
Loretto,
the owner
Id. at Califor- 2382. This S.Ct. govern proposition temporary *24 nia precedent compensation held was ment actions that eliminate all economical only sought if a available landowner had ly subject use of are property viable relief, declaratory the ordinance was held per taking analysis, a Fifth Amendment se excessive, government persisted and significantly the Court narrowed hold Tahoe-Sierra, enforcing regulation. English church ing Id. The First 535 328-29, at 122 at 1482. In Ta U.S. S.Ct. appealed Supreme United States hoe-Sierra, Supreme Court considered Court, arguing temporary regulatory group’s challenge to a two- landowners just takings require compensation under year, eight-month moratorium on new de 310, the Fifth Amendment. Id. at 107 S.Ct. 306, at velopment around Lake Tahoe. Id. at 2383. 122 at moratoria S.Ct. 1470. These were analysis prece a lengthy prior After planners land-use could enacted so dent, Court found that where develop plan the lake while takings deny all proper landowners use of 310-11, development. Id. at allowing new ty, there is no real difference between 122 at 1472-73. The landowners S.Ct. temporary takings permanent takings. and per both se claimed the moratoria were 318, (“ ‘[Temp takings takings Id. at at multifac- 2388 under S.Ct. 314-15, Id. at which, approach. Penn Central here, tored takings deny a land orar at 1474-75. S.Ct. property, owner all use of his are not permanent takings, different in from kind concluded the court had The district clearly requires which the Constitution met, not Penn factors but Central were compensation.”); see Diego 304, 107 also Gas & San U.S. English, First under 1003, Lucas, Elec. v. City Diego, Co. San 450 U.S. 505 U.S. S.Ct. the landowners entitled to S.Ct. 67 L.Ed.2d S.Ct. were (Brennan, J., months of dissenting) compensation thirty-two for the un- analyzed are instead tempo- se violations but they were the moratoria because Penn test. the multifactor Central economically der viable of all rarily deprived therefore at We Tahoe-Sierra, at S.Ct. 1478. 535 U.S. at of their land. use per takings se claim reject the Brakkes’ 316-17, at When 147-5-76. S.Ct. Brak- to consider whether the proceed cross-appealed, appealed parties the Penn takings claim under kes have a Penn Cen- appeal did landowners Central test. at at 122 S.Ct. tral issue. Id. rejected a cate- Court The Tahoe-Sierra takings claim 3. Merits of depri- temporary gorical, per se rule Central bal Penn under a multifactored of all economic uses
vations
viable
Central
ancing test. Penn
involved
takings
necessarily gives rise to a
land
City’s
landmark
application
York
New
321, 122
In-
Id. at
S.Ct. at
claim.
Central
preservation law
Grand
stead,
temporary depriva-
stated
the Court
at
at
98 S.Ct.
Terminal. 438 U.S.
analyzed
must be
tions
use of
law,
of a piece
the owner
2654. Under the
fact-specific
Penn Central
under
was
property designated as a landmark
The Tahoe-Sierra Court
framework. Id.
in a
building
maintain
required to
English by emphasiz-
distinguished First
prevented
repair
good state
and was
English
in First
ing that the issue
was
building
altering
the exterior
occurred,
only
taking had
but
whether a
approval
the Landmarks
absent
required be-
compensation was
whether
111-12,
Id. at
Preservation Commission.
taking
temporary.
Id. at
cause
amount Penn 438 U.S. apply We now turn to the Penn Central 2661; Coal., at see S.Ct. at Penn. test no before us. There case at at 160. A taking U.S. 43 S.Ct. doubt impact there has been economic if may regulation destroys be found order this case. But expectation” “primary owners land, the value of testified Cent., parcel. investors Penn 16.4%, expert, only DNR’s has declined 2665; see 438 U.S. S.Ct. also generally weigh enough heavily Health, Bd. Kasparek Cty. v. Johnson support taking. As finding See CCA 1980) (Iowa (empha 288 N.W.2d socs., Although 667 F.3d at the land Central). sizing element of Perm hunting cannot preserve, be used as States, In Kaiser Aetna v. United prior had value and other uses to becom Court the Penn Central fac summarized ing hunting preserve and has value and “the economic impact regula tors as during quarantine period. other uses tion, its in interference with reasonable there is little doubt While expectations, vestment backed and the may profits, Brakkes lost yard government action.” 444 character *26 in takings ordinarily stick a case is lost 164, 175, 100 62 U.S. S.Ct. of Acre value See property taken. Rose (1979); Connolly L.Ed.2d 332 accord v. Farms, States, Inc. F.3d v. United 559 211, Corp., Pension Guar. 475 U.S. Benefit 1260, (Fed. 2009). held 1268 We have Cir. 224-25, 1026, 1018, 106 89 S.Ct. L.Ed.2d consequential damages are not recov (1986). progeny 166 Aetna and Kaiser .its Kurth, in takings erable 628 cases. given N.W.2d descriptions rise to of have Penn at 6-7. further stated that “the We have involving three-part balancing as a Central uncertain, profits of are too Pomeroy, a business test. See Adam R. Penn Central many contingencies to Balancing depend upon 35 A Part too Years: Three After Rule?, any safely accepted be of the or a 22 evidence Test One Strike Fed. Cir. . (2013) property upon of B.J. usable value 677 550 in determining in on.” Iowa be considered is carried Wilson v. whether
the business
Comm’n,
expectations are reason
249 Iowa
vestment-backed
Highway
State
(Iowa 1958).
We
201 P.3d
able.” Mont.
profits may
lost
that claims of
“appellants
conclude
court
concluded
Kafka
determining
a
in
only as
factor
reasonably anticipated that
considered
should have
alleg-
of the land which has
the lost value
industry might be phased
Farm
the Game
Acre,
Rose
559 F.3d
edly
See
been taken.
safety-related con
out due to health and
at 1272.
32;
Id. at
see also Buh
cerns over CWD.”
State,
v.
mann
348 Mont.
P.3d
evidence,
on the
we find the eco-
Based
(2008)
of
(noting dangers
CWD to deer
not
in
simply
weigh
does
favor
nomic harm
population
“publicly
and elk
known
were
of
Penn
The Penn
taking
a
Central.
under
very
among many
mem
controversial
designed
give gov-
is
approach
Central
generally
see
Ronald
public”);
bers
fairly
ernment authorities
wide berth
Wasting
Opsahl,
Disease
W.
Chronic
public
in the
See
regulation
interest.
Action,
Elk,
Deer and
A
National
Call
144-45,
Although I not think we need diseased do light selves. in doctrine reach absurd-results of section 484C.12 taken ambiguity of the pub- in Additionally, operates this law whole, of the majority’s reading as historically lic health area where State hospital is has absurd. If indeed authority “Unquestion- has to act. broad patient, to does authority “quarantine” a ably, police of a state power inherent of the keep people out mean can’t to quarantines allows establish to a state patient room is patient’s control Johansson v. disease animals.” disease Any there? infectious Health, F.Supp. Bd. Animal place to to have connection has some 1985). (D. 1021 Minn. been, not has an infected individual
where Farms, Gosch, In Inc. v. we Shinrone just to that individual.6 interpret were asked an Iowa Code Furthermore, regula- DNR has issued a relating to control. See section brucellosis empowers to do clearly DNR tion (Iowa 1982). At time N.W.2d positive It “A test it did. provides, what provided, Code section relevant re- wasting for chronic will result disease county Whenever the. balance of [the five-year quaran- in a sult minimum becomes brucellosis fund remaining eradication] all on the tine dollars, twenty-five less than hundred pre- the infected animals located within county notify auditor shall de- r. Code 571-115.10. serve.” Iowa Admin. partment agriculture] writing [of gen- Iowa section 484C.3 is a While Code fact, expense no be in- such shall rather grant rulemaking authority,7 eral on such account excess interpretive curred specific grant of au- than a cash such fund. available it is thority, “quaran- to characterize fair language” “a “specialized sub- tine” as § Iowa 164.27 Code special expertise term stantive within Sac brucellosis fund County eradication agency.” Renda v. Civil See Iowa indemnify lacked sufficient funds Shin- Comm’n, 13-14 Rights rone for a control in full brucellosis claim. 2010). (Iowa Hence, I would defer Following the Id. at farm’s commence- 300. interpretation it is unless “irration- DNR’s litigation, county ment of the farm al, unjustifiable.” illogical, wholly or Iowa whereby into a settlement levies entered 17A.19(10)(Z). Both in this sides Code for the in the benefit fund maximum appeal agree this deferential standard years continue in future amount would appropriate here. of review payments fund would make Shin- “irrational, illogical, years, I in- it is rone in until Shinrone’s do think future wholly unjustifiable” interpret paid attor- demnity section off. Id. The claim however, general, opinion authority ney to re- giving 484C.12 as issued prevent could quire county not commit reasonable actions “the fund, upon spread years, payment where disease successive based previously were in addition to claim.” Id. animals question provides, "The I could even Code 484C.3 whether DNR direct section adopt landowner animals. department pursuant to kill the shall rules necessary chapter 17A administer agree spatial component I "A DNR: chapter.” quaran- implicit definition of therefore in the tine.” *29 binding We the settlement was found HASKENHOFF, Appellee, Tina notwithstanding enforceable provi- other Code section 164.27 and Code observed, chapter
sions. “Because We first SOLUTIONS, HOMELAND ENERGY regulation 164 is a health within the state’s LLC, Appellant. police con- power, liberally is to be No. 15-0574 Id. strued.” then held that We 164.27, section “if interpreted foster of Iowa. Court public objectives of chapter health Filed June permits the settlement entered into in this view, case.” In our the section
only prohibited payments current cash $2500, not
once the fund fell below balance
binding agreements payments to make Id. at 304-05. years.
future regulatory
Courts must sensitive agencies should
overreach. Government
not issue a quarantine order affects legitimate
landowner’s livelihood without doing
medical scientific so. basis
Although.the parties strongly disagree as here,
to the need for the measures ordered conflicting pre- evidence scientific commission, "upheld
sented order,
DNR’s order. district court’s opinion, today’s solely
like is based legal authority lack of due alleged
DNR’s reading I’m not a statute. crabbed science,
qualified to evaluate the but on the colleagues. I disagree my
law reasons, foregoing
For the I re- would judicial
verse court’s review district decision of the
order and reinstate the
Natural Commission. Resource
Waterman, J., joins concurrence in
part part. and dissent notes United States basis, temporary that even on out expressly distinguished be Court Brakkes have not been deprived all permanent temporary invasions tween interests, the property economic as can per present held taking se was species, fishing, still be used for only noneervid permanent. when an was invasion harvest, crops, hay ground, 432-35, row timber U.S. at at 3174-75. S.Ct. breakfast, pasture, or II bed and cattle recognizes DNR World War among points other The DNR also Petty Motor uses. cases of Kimball and era appraisal, which indicated the value compensation temporary tak allow property the Brakkes’ suggests later due DNR’s ings, but the DNR $1,056,000 regulatory fell to be a effort caselaw clarified that in has order $891,000. doctrine, per taking se current under Loretto, taking permanent. must be Having argued failed U.S. at S.Ct. per taking, the to show a se DNR turns to question question emergency The DNR next addresses the whether emergency taking to a un- regulatory whether the order amounted order amounted taking deprived it per se because der Penn The DNR asserts that Central. factor, hunt productive Brakkes all under the first use Penn Central ing preserve. Citing Preser im- Tahoe-Sierra Brakkes show economic failed Council, Regional weighed pact vation Inc. v. Tahoe order Planning taking. stress- Agency, finding the DNR favor The DNR asserts in the per relatively order be se under es the diminution small regulation, namely, prevent value fact the spread in value will diminution the end of Finally, argues abate CWD. period quarantine approaches. Accord- duration of the relatively was DNR, ing to the for the order economic brief in the property diminution and.the weigh in impact to of a taking, favor value was modest. great- diminution in has to much value D. er, Discussion. by fifty at least percent more. See States, CCA United Assocs. 667 F.3d 1. Overview regulatory 2011) (Fed. (stating Cir.