"Home Rule Does Not Protect Us" - Community Rights Letter to the Board #2

CRA member Jim Tripp mailing the 2nd Letter to the Board

[This is the 2nd in a series of letters to the Winneshiek County Board of Supervisors from the Community Rights Alliance of Winneshiek County. The purpose of these letters is to clearly illustrate a popular stance on frac sand mining in our county, while further articulating the legal and historical implications of the Community Rights approach to county law-making.]

To the Winneshiek County Board of Supervisors:

The Board of Supervisors has stated that Iowa is a Home Rule state. While this is true, currently there are no counties with a Home Rule charter, and only 4 cities. Moreover, the Home Rule amendment to the Iowa Constitution does not guarantee our protection. Indeed, it leaves us extremely vulnerable to the whims of our state legislators.

“The home rule amendments of the Iowa Constitution give cities and counties authority to determine their own local affairs and government in a manner which is not inconsistent with state statute” [emphasis added]

Some people, including Board members, have commented that we do not need to worry about state preemption of our local frac sand legislation. Others of us, meanwhile, feel it would be risky to dismiss this very significant and possible scenario. It is a fact that one preemptive state law regarding industrial silica sand extraction could weaken or nullify any strict regulations our county may think to impose.

This key caveat of state preemption is easily demonstrated by looking at our county’s recent experience with Concentrated Animal Feeding Operations. The Department of Natural Resources and the Environmental Protection Commission both ruled unanimously in 2013 that the rights of Millenium Ag corporation to expand its hog confinement operation outweigh our right to self-government. The egregious disregard of our local decision-making by the state departments that exist to protect our natural environment was based on the following precept:

“An ordinance is inconsistent with the state statute when the ordinance prohibits an act permitted by a statute or permits an act prohibited by a statute.”  (City of Council Bluffs v. Cain, Iowa 1983. Quoted in Crowley, Iowa Local Govn’t Initiative and Referendum).

Due to immense financial lobbying power of agribusiness on our state officials, and despite the unpopularity of such a law, the State of Iowa declared that CAFO’s are a guaranteed permitted activity and therefore cannot be kept out by affected citizens. In other words, our communities are forced to endure this corporate harm even if the majority of citizens don’t want it.

To sum this up, current settled constitutional law in the State of Iowa can and does grant corporations the right to their desired actions, even when they are harmful to our communities; whether it is by way of CAFO’s, or very potentially, frac sand mining. This isn’t good enough for many thoughtful and dedicated citizens of this county. We don’t want it to be good enough for our Board of Supervisors.

Respectfully,

Jim Tripp

for the Community Rights Alliance of Winneshiek County