                     IN THE COURT OF APPEALS OF IOWA

                                    No. 14-0205
                                 Filed April 8, 2015


MONROE BRANSTAD,
    Petitioner-Appellant,

vs.

STATE OF IOWA ex rel., NATURAL
RESOURCES COMMISSION and the IOWA
DEPARTMENT OF NATURAL RESOURCES,
     Respondent-Appellee.
________________________________________________________________

       Appeal from the Iowa District Court for Hancock County, Rustin T.

Davenport, Judge.



       A petitioner appeals the district court’s refusal to award attorney fees in his

judicial review action against the Iowa Department of Natural Resources.

REVERSED AND REMANDED.



       Christine E. Branstad of Branstad Law, P.L.L.C., Des Moines, and James

L. Pray of Brown, Winick, Graves, Gross, Baskerville, and Schoenebaum, P.L.C.,

Des Moines, for appellant.

       Thomas J. Miller, Attorney General, David R. Sheridan, Assistant Attorney

General, and David L. Dorff, Assistant Attorney General Environmental Law

Division, for appellee.



       Heard by Vogel, P.J., and Doyle and McDonald, JJ.
                                          2


VOGEL, P.J.

       Monroe Branstad appeals the district court’s denial of his application for

attorney fees arising out of his judicial review petition. He claims the district court

incorrectly determined the exceptions to Iowa Code section 625.29 (2011),

applied to his case to preclude an award of attorney fees. He also claims the

district court should have concluded he was a “prevailing party” under that

statute. Because we find no exception applies to preclude the award of attorney

fees and conclude Branstad was the prevailing party, we reverse and remand to

the district court for a hearing to determine the amount of attorney fees Branstad

is entitled to recover.

I. Background Facts and Proceedings.

       This action began with the discharge of sweet corn silage leachate from a

containment basin on Branstad’s property.         The Iowa Department of Natural

Resources (the DNR) investigated the discharge and conducted a fish kill count

in the nearby Winnebago River.          Branstad entered into a consent decree

admitting the discharge occurred but denied the discharge caused the fish kill in

the river and reserved the right to challenge any damage assessment. The DNR

issued a restitution assessment requiring Branstad to pay $61,794.49 in

restitution for killing over 31,000 fish. It extrapolated this number for the fish kill

based on its application of the American Fisheries Society Publication 24, which

estimates the number of fish killed based on sampling sites. However, only 2233

fish were actually counted.

       Branstad appealed the restitution assessment, and the case proceeded to

an evidentiary hearing before an administrative law judge (ALJ) from the Iowa
                                          3


Department of Inspections and Appeals. The ALJ issued a proposed decision

affirming the restitution assessment concluding “DNR personnel conducted an

investigation into the extent of the fish kill in accordance with the applicable rules

and procedures.”      Branstad appealed this decision to the Iowa Natural

Resources Commission.        In a vote of 4-to-1, the commission adopted the

proposed decision of the ALJ.

       Branstad filed a petition for judicial review with the district court.    The

district court articulated the claims made by Branstad as

       (1) the agency erred by failing to consider the act-of-God defense;
       (2) the agency erred by failing to find that the DNR incorrectly
       applied the American Fisheries Society guidelines for fish kill
       investigations; (3) the agency erred in finding causation; (4) the
       statutes or rules relied upon by the agency are unconstitutionally
       void for vagueness or are unconstitutional as applied; and (5) the
       agency’s actions violate Branstad’s substantive and procedural due
       process rights under the Fourteenth Amendment.

After receiving briefs from the parties, the district court issued its decision

rejecting Branstad’s act-of-God defense and causation challenge; however, the

court determined “the method used by the DNR to determine the number of dead

fish is inconsistent with its rules it adopted to implement Iowa Code [section]

481A.151(2).”1   The court reversed the agency’s decision and remanded the

case to the agency to recalculate the restitution owed based on the number of

dead fish actually counted. The agency ultimately issued a decision on remand

reducing the amount of restitution owed for the fish kill from $61,794.49 to

$5297.19. Branstad did not appeal this assessment.


1
 Because the district court reversed the agency’s restitution assessment based on the
agency’s failure to comply with the guidelines it adopted, the court did not address
Branstad’s constitutional claims.
                                        4


      Branstad subsequently filed a motion for an award of attorney fees in the

judicial review action, asserting under Iowa Code section 625.29 he was entitled

to fees and expenses as the prevailing party and submitting an affidavit itemizing

the $70,720.19 claim. The district court denied the motion concluding three of

the exceptions in section 625.29 applied to preclude the award of attorney fees

and expenses. Branstad now appeals claiming the district erred in denying his

request.

II. Scope and Standard of Review.

      Our review is for correction of errors at law. Iowa R. App. P. 6.907. We

must determine whether the district court correctly applied the applicable law with

respect to the award of attorney fees arising out of a judicial review action.

Medco Behavioral Care Corp. of Iowa v. State Dep’t of Human Servs., 553

N.W.2d 556, 561 (Iowa 1996).

III. Attorney Fees Under Section 625.29.

      Iowa Code section 625.29 provides, in part and relevant to this appeal:

              1. Unless otherwise provided by law, and if the prevailing
      party meets the eligibility requirements of subsection 2, the court in
      a civil action brought by the state or an action for judicial review
      brought against the state pursuant to chapter 17A other than for a
      rulemaking decision, shall award fees and other expenses to the
      prevailing party unless the prevailing party is the state. However,
      the court shall not make an award under this section if it finds one
      of the following:
              a. The position of the state was supported by substantial
      evidence.
              b. The state’s role in the case was primarily adjudicative.
              c. Special circumstances exist which would make the award
      unjust.

      The district court did not address whether Branstad was a “prevailing

party” under this statute; instead, it relied on the exceptions found in (a) “The
                                          5


position of the state was supported by substantial evidence,” (b) “The state’s role

in the case was primarily adjudicative,” and (c) “Special circumstances exist

which would make the award unjust” to deny Branstad’s request for attorney

fees.   The application of any one of these exceptions would suffice to deny

Branstad his claim for attorney fees and expenses. See Iowa Code § 625.29(1)

(“However, the court shall not make an award under this section if it finds one of

the following.” (emphasis added)).         We first turn our attention to those

exceptions.

        A. Substantial Evidence. In concluding substantial evidence supported

the State’s position, the district court noted the State was successful in proving

Branstad caused the fish kill, in defending against the act-of-God defense, and in

overcoming the challenges to the impact of the recent heavy rain and diverse fish

habitats on the fish kill count. The court noted the State only lost on the issue of

whether the fish kill count was conducted according to the American Fisheries

Society Special Publication 24, which then led to a substantial reduction in the

damages assessed.

        In the underlying action, the State had for many years asserted the

publication was only a guideline and relied on the expertise of its biologist to

exercise his discretion in applying that publication to the unique circumstances of

each fish kill investigation. In support of its position, the State cited the language

of the publication that noted the methods “are guidelines only” and recommended

that fishery managers “use professional judgment and expertise to conduct

specific studies.” The advisory of the publication also noted that “[e]ach kill is

unique and requires some adaptation of the general methods.” The district court
                                       6


noted that while it had concluded the counting method utilized by the DNR was

not authorized by the agency rules, “a reasonable mind could accept the DNR

fish count as an accurate number of dead fish. Accordingly, the fish count meets

the substantial evidence test.”

       In his appeal, Branstad claims the district court failed to identify the

“position” of the State that was supported by substantial evidence. Branstad

maintains that the State’s overarching position was that he was liable for more

than $61,000 in restitution based on the fish kill investigation and faulty

calculation of 31,000 dead fish, when only 2233 had actually been counted. He

claims causation was not an issue before the court in light of the consent decree

in which he admitted the silage leachate escaped his containment basis which

led to an old county tile line, which led to a stream and a drainage ditch, which

led to the river. He likewise states the act-of-God defense and challenges to the

heavy rainfall event and diverse habitats were alternative explanations for the

number of dead fish inaccurately calculated by the DNR. Branstad asserts he

should not be penalized for asserting, but not prevailing, on his alternative

arguments. Branstad also claims the substantial evidence exception should not

be applied here because the primary issue of the case was a legal question—

whether the DNR followed the correct methodology when it counted the fish—not

a factual question.

       Branstad’s claim that the consent decree resolved the causation issue is

not entirely accurate. The consent decree itself specifically provided that while

Branstad admitted there was a discharge from his property into the river, the

decree stated Branstad “denie[d] that the discharge admitted herein caused the
                                         7


death of the fish” and Branstad “further reserves the right to contest any claim for

damages brought by the DNR.” In Branstad’s petition for judicial review, he

asserted he was entitled to relief because the State “incorrectly and without any

basis in fact, assumes that all of the dead fish that were found were killed by a

release of contamination” and asserted he “did not cause the alleged fish kill or,

in the alternative, should not be assessed 100% of the fish kill.” The district court

articulated one of Branstad’s claims in its judicial review decision as “(3) the

agency erred in finding causation.” The court found that once the discharge was

remediated, the water quality improved and ultimately held substantial evidence

supported the agency’s finding of causation.

       Similarly, Branstad’s act-of-God defense and his challenge to the fish kill

count based on the significant rain event and diverse fish habitats were also

raised in Branstad’s judicial review petition and addressed by the district court in

its decision.   However, Branstad primarily attacked the faulty methodology

employed by the DNR to calculate the total number of dead fish and the

associated restitution assessed. Therefore, Branstad is correct to articulate the

State’s position as whether he was liable for more than $61,000 in restitution

based on the fish kill investigation. We must analyze whether the State’s position

in response to Branstad’s claim is sustained by substantial evidence.

       Substantial evidence under Iowa Code section 625.29(1)(a) has been

defined as “evidence a reasonable mind could accept as adequate to reach a

conclusion.” In re Property Seized from McIntyre, 550 N.W.2d 457, 460 (Iowa

1996). We look only at the evidence supporting the State’s case, and a finding

can be supported by substantial evidence even though “two inconsistent
                                         8

conclusions might be inferred from the same evidence.”             Id. at 459–60.

“Substantial evidence is more than a scintilla of evidence, but it need not be a

preponderance of evidence.” Id. at 460. Branstad bears the burden to prove the

State’s position is not supported by substantial evidence. See id. at 459.

       The district court held the methodology employed by the DNR to calculate

the total number of fish killed was flawed. The State’s argument in support of the

methodology it employed was that the American Fishery Societies’ publication

was only a “guideline” and that its employee was using his professional judgment

and expertise to adjust the methodology to the local conditions.

       The district court, citing Iowa Code section 481A.151(2), disagreed, as the

enabling statute requires “rules” to be followed when investigating fish kills. The

district court found:

       Although the language in AFS 24 discusses the rules as guidelines,
       once the DNR adopted the AFS 24 as rules of the State of Iowa,
       they were no longer guidelines. To allow the DNR to choose a
       methodology contrary to the AFS 24 violates the requirement that
       the rules should provide fair notice to the public, and that the rules
       will be consistently applied. The actual method used by the DNR in
       this case was not a method that was subject to review prior to the
       adoption of the DNR regulations. Further, the DNR’s decisions
       regarding sampling are contrary to the sampling methods that are
       suggested by the AFS 24.

The DNR employed the “narrow streams accessible at and beyond road

crossings” methodology while Branstad argued it should have used the

“completely accessible streams” method.       The court, finding the Winnebago

River to be navigable, agreed with Branstad.       It further found that even the

incorrect method the DNR employed was not consistently followed in this

investigation, leading to even greater prejudice to Branstad.
                                          9


       DNR failed to recognize the American Fisheries Society Publication 24

was not a guideline, but was in fact a regulation to follow, once it was adopted by

the agency. It also failed to correctly interpret its own regulation in order to select

the proper methodology to apply to a fish kill investigation on the Winnebago

River. In addition, it failed to even apply this incorrect methodology it had chosen

properly as the DNR investigator admitted to not following his own rules

regarding which sample cites to choose. We conclude substantial evidence does

not support the State’s position that Branstad was responsible for approximately

$61,000 in restitution for the fish kill event. Thus, contrary to the district court’s

finding, the substantial-evidence exception does not apply here to preclude an

award of attorney fees to Branstad.

       B. Primarily Adjudicative. The district court also relied on the statutory

exception found in section 625.29(1)(b)—“The state’s role in the case was

primarily adjudicative”—to preclude an award of attorney fees to Branstad. The

court concluded the agency’s role “was to settle and decide issues raised by

[Branstad]” and that the agency “went far beyond fact finding and investigation.”

The court noted a full evidentiary hearing was held in front of an ALJ whose

decision was affirmed by the Iowa Natural Resource Commission. The district

court likened the case to Remer v. Board of Medical Examiners, 576 N.W.2d 598

(Iowa 1998), and held the agency’s role was to determine whether the restitution

assessment was appropriate and consider Branstad’s defenses and alternate

theories of causation.      Because the agency investigated and adjudicated

Branstad’s actions, the court applied the primarily adjudicatory exception to

preclude the award of attorney fees here.
                                          10

       In Remer, the supreme court concluded the board of medical examiners’

role was primarily adjudicative where “following a lengthy investigation, the board

filed formal disciplinary charges against Remer,” notice was served on Remer,

and “the case was contested in a full evidentiary hearing before a three-member

panel of the board.” 576 N.W.2d at 603. An ALJ assisted the three-member

panel in conducting the hearing. Id. While the charges brought against Remer

were ultimately dismissed, the court concluded the State’s role was still primarily

adjudicative as “[t]he panel of the board proceeded with a full evidentiary hearing

with all elements in place to effectuate an adjudication.” Id.

       To clarify when an agency’s role is primarily adjudicative versus

investigatory, the Remer court cited Citizens’ Aide/Ombudsman v. Rolfes, 454

N.W.2d 815, 817 (Iowa 1990). There the agency was found to serve primarily an

investigative function requesting and receiving information, and issuing

subpoenas to compel testimony and production of documents but was not

involved   in   adjudicating   legal   rights,   duties,   or   privileges.    Citizens’

Aide/Ombusdman, 454 N.W.2d at 817. The Remer court also cited the case of

Hannah v. Larche, 363 U.S. 420, 440-41 (1960), from the United States Supreme

Court, where that court noted the Civil Rights Commission’s duties consisted of

investigating allegations of discrimination, collecting information and reporting its

activities, findings, and recommendations to the President and Congress. The

Supreme Court noted the agency,

       does not adjudicate. It does not hold trials or determine anyone’s
       civil or criminal liability. It does not issue orders. Nor does it indict,
       punish, or impose any legal sanctions.               It does not make
       determinations depriving anyone of his life, liberty, or property. In
                                       11


      short, the Commission does not and cannot take any affirmative
      action which will affect an individual’s legal rights.

Hannah, 363 U.S. at 441.

      Branstad asserts the DNR’s role in this case was not adjudicative but

prosecutorial or executive. He distinguishes this case from Remer on a number

of grounds. He points out the DNR assessed restitution against him based on its

investigation prior to any adjudicative hearing on the merits of the case and

before Branstad could even participate in the process.      He only received an

evidentiary hearing on the restitution because he appealed the assessment. In

contrast, the board of medical examiners in Remer only filed charges against

Remer after its investigation. 576 N.W.2d at 603. Remer was then provided an

opportunity to plead his case in a full evidentiary hearing, and it was only after

this hearing before the agency that any adverse action against Remer could be

taken. Id.

      Another point of distinction between Remer and this case involves the

tribunal who heard the evidentiary hearing and the personnel that prosecuted the

case. In Remer the hearing took place before a three-member panel of the

agency board, assisted by an ALJ. Id. The board’s panel issued its proposed

decision that became final when no appeal was taken. Id. The attorney general

prosecuted the case, not the agency’s personnel. Id. at 599. The hearing in

Branstad’s case took place before an impartial ALJ from the Iowa Department of

Inspections and Appeals, not before the DNR or the Iowa Natural Resource

Commission.      The DNR—the very agency which issued the restitution

assessment—was the prosecutor in the action before the ALJ and neither the
                                          12


DNR nor the Commission issued the decision. While the Iowa Natural Resource

Commission did vote to adopt the ALJ’s proposed ruling, the evidentiary hearing

did not take place before that agency.

       While primarily adjudicative is not defined in the statute, the Remer court

determined, based on a dictionary definition, an agency’s role is primarily

adjudicative if the “agency’s function principally or fundamentally concerns

settling and deciding issues raised.” Id. at 601. In addition, pursuant to the

statute, we are look at the State’s role “‘in the case’ at bar, not its role in other

cases or as a general matter.” Id.

       The State asserts that the “State’s role” should be interpreted broadly to

include not only the DNR’s investigation and assessment, but also the ALJ’s

decision—as it was employed by the Iowa Department of Inspections and

Appeals—and the action taken by the Iowa Natural Resource Commission. See

Iowa Code § 625.29(1)(b) (“The state’s role in the case was primarily

adjudicative.” (emphasis added)). We are mindful that the exception should not

be interpreted to swallow the rule. See Remer, 576 N.W.2d at 604 (Carter, J.,

concurring specially) (“I write separately to stress that in my view all

administrative action that results in a contested case hearing does not

necessarily fall under that statute. Almost all administrative action that causes

adverse consequences to a party seeking attorney fees under section 625.29 will

have gone through a contested case hearing process.           That is a necessary

consequence of the rule requiring exhaustion of administrative remedies. But,

this does not mean that the administrative action that is the subject of the

complaint was itself primarily adjudicative.”).
                                         13


         Here, the State was unable to articulate any agency action that would not

qualify as primarily adjudicative under its interpretation of this exception, and nor

can we. We will not interpret the statute so broadly. See Samuel A. Thumma

& Barbara J. Dawson, The Iowa Equal Access to Justice Act: Is Recovery

Available, 39 Drake L. Rev. 431, 450–51 (1989–90) (noting that if the “‘primarily

adjudicative’ exception” is broadly interpreted, it “would render the Iowa EAJA

totally ineffective.”); see also Citizens’ Aide/Ombudsman, 454 N.W.2d at 817

(noting that agency action is characterized as “rule-making, contested case, and

other agency action” and determining the office of Citizens’ Aide is “other agency

action” as that agency’s functions include investigation and receipt of information

only).

         We focus on the role of the DNR, and not the role of the ALJ, as the DNR

was the agency that investigated the fish kill and assessed the restitution against

Branstad, prior to any opportunity for a hearing, and then prosecuted the

administrative appeals. We conclude Remer is not controlling in this case as its

facts are sufficiently distinguishable. Instead, we conclude the facts here show

the State’s role was not primarily adjudicative as the DNR investigated and

prosecuted the case against Branstad.           To contest the initial restitution

assessment, Branstad was left with filing an appeal in order to be entitled to an

evidentiary hearing, and that evidentiary hearing took place before an impartial

ALJ, not before the agency investigating the case. Because we conclude the

State’s role in this case was not primarily adjudicative, contrary to the district

court’s finding, we conclude this exception does not apply to preclude an award

of attorney fees to Branstad.
                                        14


       C.   Special Circumstances.            Finally, the district court applied the

exception found in section 625.29(1)(c)—“Special circumstances exist which

would make the award unjust”—to preclude an award of attorney fees. The court

held the State clearly established Branstad’s actions caused the fish kill and

while it was ultimately held he would be responsible for killing 2233 fish, “it

cannot be seriously argued that these were the only fish killed as a result of the

silage runoff.” The court clearly considered the damage done by the runoff from

Branstad’s containment basin as precluding an award of attorney fees to

Branstad even if Branstad did the public a service by bringing this action to

challenge the DNR’s fish kill calculation methods.

       Branstad maintains the restitution for the fish kill was not intended to be

punitive, and thus, the district court’s consideration of the damage he did to the

river and the wildlife was not proper. While there is no Iowa case law articulating

what special circumstances make an award unjust, Branstad points to federal

case law interpreting similar language in the federal act as a “safety valve” to

ensure the government is not deterred from advancing, in good faith, novel

arguments extending or interpreting the law.          U.S. Dep’t of Labor v. Rapid

Robert’s, Inc., 130 F.3d 345, 347 (8th Cir. 1998). The exception also permits

courts to deny awards where equitable considerations so dictate. Id. Branstad

claims this exception is to be applied in cases where individuals repeatedly

violate the law but escape the legal consequences on a technicality.              He

maintains this case does not fit that mold.

       The State disagrees, asserting that Branstad achieved a significant

reduction in the restitution amount, not because his actions did not result in the
                                           15


killing of a multitude of fish, but because the methodology the State used to

arrive at a total figure was improper. This left the State uncompensated for a

significant number of fish that it claims were killed as a result of Branstad’s illegal

discharge. The State maintains to permit an award of attorney fees here would

have a chilling effect on the State’s advancement of good faith restitution claims

against persons responsible for killing or injuring wildlife. Thus, the State asserts

using the “safety valve” of section 625.29(1)(c) to prevent an award of attorney

fees to Branstad is proper in this case.

       Branstad significantly reduced the restitution owed, based on correcting

an illegal and long-standing method used by the DNR across the state for

determining a fish kill. The action brought by Branstad also had the effect of

forcing the DNR to acknowledge that what it considered to be its loose

“guidelines” were in fact standardized “rules,” so that in the future, the public is

put on notice as to the methods utilized. The future fish kill counts will be more

accurate and follow more closely the methods set out in the American Fishery

Society Publication 24. This action served the public good, and we conclude

there are no special circumstances that would make an award of attorney fees

and expenses to Branstad unjust. Because we conclude an award of attorney

fees would not be unjust in this case, contrary to the district court’s finding, we

conclude this exception does not apply here to preclude an award of attorney

fees to Branstad. Having found none of the exceptions the district court relied on

to deny Branstad an award of attorney fees applicable, we now must turn our

attention to whether Branstad was a prevailing party—an issue not reached by
                                              16


the district court in light of its rulings on the exceptions in Iowa Code section

625.29(1)(a)–(c).

       D. Prevailing Party. The term “prevailing party” is not defined in the

statute. “Absent legislative definition or a particular and appropriate meaning in

law, we give words their plain and ordinary meaning.                We also consider the

context in which the term is used.”             Remer, 576 N.W.2d at 601 (citations

omitted). Where the term is not defined by the legislature, we turn to dictionaries

for guidance. Id. Black’s Law Dictionary defines prevailing party as “A party in

whose favor a judgment is rendered, regardless of the amount of damages

awarded. Also termed successful party.” Black’s Law Dictionary 1154 (8th ed.

2004). In a Fair Labor Standards Act case, our supreme court has recognized

the United States Supreme Court’s explanation of when a party prevails as

“when actual relief on the merits of his claim materially alters the legal

relationship between the parties by modifying the defendant’s behavior in a way

that directly benefits the plaintiff.” Dutcher v. Randall Foods, 546 N.W.2d 889,

895 (Iowa 1996).       While no Iowa court has defined what it means to be a

prevailing party under section 625.29,2 we conclude a party need not have

prevailed on every issue, or every asserted defense, in order to be considered a

prevailing party. See Hensler v. City of Davenport, 790 N.W.2d 569, 589 (Iowa

2010) (noting a factor to consider when awarding attorney fees in a federal civil


2
  In the article, The Iowa Equal Access to Justice Act: Is Recovery Available, 39 Drake L.
Rev. 431, 466 (1989-90), the authors note the lack of Iowa case law defining the term
prevailing party and recommend the definition be “a litigant who succeeds on a
significant issue on the merits in the final outcome of the litigation and receives some of
the benefit sought in the litigation.” The authors also recommend a three-prong inquiry
“(1) did a litigant succeed on a significant issue on the merits; (2) was the litigation final;
and (3) did the litigant receive a benefit?”
                                          17


rights action is to consider “the level of the prevailing party’s success in the

litigation” implying a party can be a prevailing party without winning on all issues).

       While Branstad did not obtain relief on every ground or defense he raised

in contesting the restitution assessment, he did succeed in demonstrating the

adverse financial consequences when the DNR utilized a faulty fish count

methodology. His success on this major issue resulted in significantly reducing

the amount of restitution assessed against him from $61,794.49 to $5297.19. He

also succeeded in compelling the DNR to follow the regulations it adopts

specifically with regard to fish kill counts. The future fish kills counts will be more

accurate and follow more closely the methodology the agency has adopted. We

conclude Branstad in this case was a prevailing party.

IV. Conclusion.

       Because we conclude Branstad is a prevailing party under section 625.29,

and none of the exceptions apply to preclude an award of fees and expenses, we

remand this case to the district court for a determination of an appropriate award

under section 625.29. The court should also consider an award of appellate

attorney fees. See Schaffer v. Frank Moyer Constr., Inc., 628 N.W.2d 11, 23

(Iowa 2001) (noting that the mechanics lien statute did not limit an award of

attorney fees to those incurred in the district court and therefore the statute

contemplated an award of appellate attorney fees as well).

       REVERSED AND REMANDED.
