author: LAVORATO, Chief Justice.

text:
    MEDIACOM IOWA, L.L.C., Appellant, v. INCORPORATED CITY OF SPENCER, Iowa, and The Board of Trustees of The Spencer Municipal Utilities, Appellees.
    No. 02-0554.
    Supreme Court of Iowa.
    June 16, 2004.

      Mark McCormick and Margaret C. Callahan of Belin Lamson McCormick Zum-bach Flynn, P.C., Des Moines, Harold W. White of Fitzgibbons Law Firm, Esther-ville, and R. Bruce Beckner of Fleischman and Walsh, L.L.P., Washington, D.C., for appellant.
    Stephen F. Avery of Cornwall, Avery, Bjornstad & Scott, Spencer, Dick H. Montgomery, Spencer, and Ivan T. Webber of Ahlers & Cooney, P.C., Des Moines, for appellees.
   LAVORATO, Chief Justice.

In this declaratory judgment proceeding, we granted a cable company interlocutory review of a district court order that partially denied the company’s motion to compel discovery. The cable company sued a city and its utilities board for its actions in establishing a competing communications system. The company contends the district court abused its discretion in protecting from discovery information the court concluded constituted trade secrets. We agree and reverse and remand the case for further proceedings consistent with this opinion.

I. Background Facts and Proceedings.

Mediacom Iowa, L.L.C. (Mediacom) has a franchise from the city of Spencer (city) to provide cable television and Internet service. Mediacom brought this declaratory judgment action against the city and the Board of Trustees of Spencer Municipal Utilities (Board). The petition alleges thé following facts.

The action was brought to end the ultra vires actions of the city and the Board to implement the city’s and the Board’s decision to use up to $16 million of electric ratepayer funds to finance the construction and operation of an integrated, multi-pur-pose communications system in Spencer. The financing has been done in two principal transactions, referred to as the Inter-fund Loan. In the first transaction, $8 minion of electric service revenues have been pledged to pay debt incurred to build part of the communications system. In the second transaction, up to $8 million of electric utility funds have or will be transferred outright to pay for the construction and operation of the communications system.

The city has allowed the Spencer Municipal Utilities (SMU) to construct a communications system to provide cable television service without requiring SMU to have a franchise or imposing upon it regulatory burdens comparable to those borne by Me-diacom. These actions undermine the financial integrity of SMU, violate Iowa statutory prohibitions, and force captive SMU ratepayers to become involuntary supporters of the city’s communications system. Moreover, the city’s actions are also unfair to Mediacom, subjecting it to competition from an entity that is financed with money illegally raided from SMU’s ratepayers and imposing costs and obligations on Mediacom that are not also imposed on the city’s communications system.

Among other things; the petition seeks temporary and permanent injunctive relief concerning the construction and operation of the communications system and the financing of the construction, operation, and maintenance of the system.

Following the filing of the petition, Me-diacom served on the Board a request for production of documents. The Board objected to eleven of Mediacom’s document requests on the grounds of trade secrets under Iowa Code section 22.7(3) (Supp. 2001) (providing that trade secrets are confidential for purposes of the open records law) and under Iowa Code section 388.9(2) (2001) (providing competitive information of city utility shall not be examined). The Board also objected to five of the eleven requests on the grounds of attorney-client privilege.

The eleven requests sought information concerning the communications system and more specifically design and construction documents, feasibility studies relating to the economic viability of a communications system, planned use and installation of control boxes, Board minutes, documents analyzing the financial consequences and risks of the Interfund Loan, disposition of electric utility surplus to fund the Interfund Loan, construction and operation financing, budget forecasts, leases, cost or expense allocation relating to terminal or interface box installation, and financial information regarding the effect on .rates charged by SMU from failure of the communications system to repay amounts owed to SMU.

After unsuccessful attempts to informally settle a discovery dispute that arose because of the requests, Mediacom filed a motion to compel discovery. Following a hearing at which no evidence was presented, the district court sustained the motion in part and overruled the motion in part. Regarding the claim of attorney-client privilege, the court ordered the Board to produce a privilege log regarding five of the eleven requests. However, the court overruled the motion as to all eleven requests, finding that the information sought constituted trade secrets and for that reason were entitled to protection from discovery.

Mediacom sought interlocutory appeal, which we granted.

II. Issues.

On appeal, Mediacom contends the district court’s findings of fact as to the existence of trade secrets lack support in the record. Mediacom also contends the district court applied the wrong standard by-granting absolute protection to the alleged trade secrets.

The Board contends the district court was correct in protecting the information sought through discovery under both Iowa Code section 22.7(3) (Supp.2001) and Iowa Code section 388.9(2) (2001).

III. Scope of Review.

We review a district court’s ruling on a discovery matter for abuse of discretion. State ex. rel. Miller v. Nat'l Dietary Research, Inc., 454 N.W.2d 820, 822 (Iowa 1990). There is such an abuse when the grounds underlying a district court order are clearly untenable or unreasonable. Id. “A ruling based on an erroneous interpretation of a discovery rule can constitute an abuse of discretion.” Shook v. City of Davenport, 497 N.W.2d 883, 885 (Iowa 1993).

IV. Analysis.

We begin our analysis by noting the philosophy underlying our discovery rules is that “litigants are entitled to every person’s evidence, and the law favors full access to relevant information.” Nat’l Dietary, 454 N.W.2d at 822-23. Thus, the district court should liberally construe our discovery rules. Id. at 823.

However, there are several avenues available to those who wish to resist discovery. Id. Such avenues are included in Iowa Rule of Civil Procedure 1.503 (scope of discovery) and Iowa Rule of Civil Procedure 1.504 (protective orders). Id.

Rule 1.503, relating to scope of discovery, provides:

Unless otherwise limited by order of the court in accordance with the rales in this chapter, the scope of discovery is as follows:
1.503(1) In general. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things.... It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

(Emphasis added.)

As this rule makes clear, a party is entitled to discover any information that is not privileged and that is relevant to the subject matter of the lawsuit. Nat’l Dietary, 454 N.W.2d at 823. Relevancy to the subject matter of the lawsuit is broader than relevancy to the precise issues in the pleadings because the rule allows discovery of inadmissible information as long as it leads to the discovery of admissible evidence. Id.

In this connection, the court has recognized that there is no true privilege against discovery of trade secrets or other confidential information. Roberts v. DeKalb Agric. Assoc., Inc., 259 Iowa 131, 140, 143 N.W.2d 338, 343 (1966). And a party resisting discovery by invoking a privilege has the burden to show that the privilege exists and applies. Hutchinson v. Smith Labs., Inc., 392 N.W.2d 139, 141 (Iowa 1986): The court has also recognized that a trade secret must and should be disclosed if the disclosure is relevant and necessary to the proper presentation of a plaintiffs or defendant’s case. Roberts, 259 Iowa at 140, 143 N.W.2d at 343. The catch is to secure the right of one litigant to get relevant and necessary information and to protect the other litigant from disclosing secrets which are not relevant and necessary, especially where the action is between competitors. Id. To this end, rule 1.504, regarding protective orders, comes into play.

Rule 1.504(1) pertinently provides:

Upon motion by a party or by the person from whom discovery is sought or by any person who may be affected thereby, and for good cause shown, the court in which the action is pending ...
a. May make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
(1) That the discovery not be had.
(2) That the discovery may be had only on specified terms and conditions ....
(7)That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way.

By its terms, rule 1.504(1) allows the district court to prevent or restrict discovery when the information sought is a trade secret or other confidential information. The district court may prevent or restrict such discovery even though the requirements of rule 1.503(1) are met. Nat’l Dietary, 454 N.W.2d at 823.

This court has interpreted rule 1.504(1) to allow the district court to issue a protective order to prevent or restrict such discovery “when good cause is shown for finding that disclosure of a trade secret or other confidential information should be prevented or restricted to protect a party ‘from annoyance, embarrassment, oppression, or undue burden or expense Farnum v. G.D. Searle & Co., 339 N.W.2d 384, 389 (Iowa 1983) (citing Iowa R. Civ. P. 1.604(l)(o)).

Before the district court may issue a protective order regarding a trade secret or other confidential information, it must first determine that the information constitutes a trade secret or othér confidential information. Id.

Iowa Code section 550.2(4) defines trade secrets:

“Trade secret” means information, including but not limited to a formula, pattern, compilation, program, device, method, technique, or process that is both of the following:
a. Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable • by .proper means by a person able to obtain economic value from its disclosure or use.
b. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Iowa Code § 550.2(4) (2001). Whether this definition is satisfied is a mixed question of law and fact. Econ. Roofing & Insulating Co. v. Zumaris, 538 N.W.2d 641, 648 (Iowa 1995). The legal determination is whether the material sought is “information.” Id. The factual determination is whether (a) and (b) of section 550.2(4) are satisfied. Id. at 648-49. A district court ruling denying access to trade secrets must be reversed for abuse of discretion when the party resisting production makes no showing on the latter two factors. Nat’l Dietary, 454 N.W.2d at 824.

Once having made the determination that the information sought is a trade secret or other confidential information, the district court must then determine whether good cause has been shown for the protective order. Farnum, 339 N.W.2d at 389. To establish good cause, a party seeking the protective order must make “ ‘a particular and specific demonstration of fact, as distinguished from stereotyped and conclusionary statements.’ ” Id. (citation omitted). In evaluating the factual showing, the district court should employ three criteria:

“[T]he harm posed by dissemination must be substantial and serious; the restraining order must be narrowly drawn and precise; and there must be no alternative means of protecting the public interest which intrudes less directly on expression.”

Id. at 389-90 (quoting In re Halkin, 598 F.2d 176, 191 (D.C.Cir.1979)). These criteria, we said, “strike a balance between the policy favoring discovery and free expression on one side and a party’s interest in avoiding commercial damage and preventing an abuse of discovery on the other.” Id. at 390.

Here, the district court merely found that the document requests to which the Board objected were trade secrets and denied Mediacom’s motion to compel without further findings or analysis. The Board presented no evidence, and the district court made no factual determinations on the two factual questions that must be satisfied on the question whether information constitutes a trade secret. As to the first factual determination, the district court’s ruling merely concludes, “all of these items also have economic value not being readily ascertainable to a competitor, who could obtain value from their use....” The district court cites no facts to support this conclusion. The Board, the party claiming the privilege of trade secret, had the burden to prove the information sought met this prong of the trade secret definition.

As to the second factual determination, the ruling again merely concludes, “all of these items ... are the subject of reasonable efforts at secrecy.” Again, the Board offered no proof of any efforts it took to keep the information secret, and for that reason the district court had no factual basis to support its conclusion.

Moreover, the district court did not apply the three-part Famum test to restrict or prevent discovery. The court upon finding the information sought constituted trade secrets protected the information absolutely from discovery.

Because the district court made no factual findings regarding whether the information sought constituted trade secrets and failed to apply the three-part Famum test, we conclude it abused its discretion in denying the motion to compel. See State of Iowa ex. rel. Miller v. Publishers Clearing House, Inc., 633 N.W.2d 732, 739-40 (Iowa 2001) (holding protective order on trade secret grounds that merely tracked language of statute, without particularized findings, was insufficient to support trade secret claim, and court failed to apply the required three-part test for protective order; court’s protective order on trade secret ground was therefore abuse of discretion).

The Board cites Iowa Code chapter 22, the open records law, to support the district court ruling. Although the district court made no reference to Iowa Code chapter 22, we infer from its ruling that it was indeed relying on that chapter, and more specifically Iowa Code section 22.7 (Supp.2001). Section 22.7 provides in relevant part:

The following public records shall be kept confidential, unless otherwise ordered by a court, by the lawful custodian of the records, or by another person duly authorized to release such information:
3. Trade secrets which are recognized and protected as such by law.

(Emphasis added.)

Even assuming the Board had established its trade secret claim, section 22.7 would not automatically dictate absolute protection of the information sought through discovery. Iowa Code chapter 22 pertains to parties seeking access to government documents and ordinarily has no application to discovery of such information in litigation. Mediacom is not seeking access to government documents as a member of the general public; it is seeking access to such records as a plaintiff in litigation with a governmental entity. As a litigant, the Board is subject to our discovery rules, which do not absolutely protect trade secrets from discovery. We agree with Mediacom that there is nothing in section 22.7 that suggests the legislature intended to limit the discovery rights of litigants in cases involving governmental entities. To the contrary, section 22.7 indicates the opposite because it allows disclosure upon a court order. We conclude, contrary to the district court, that section 22.7 does not trump our discovery rules.

The Board also relies on Iowa Code section 388.9(2) (2001) to support the district court ruling. Although the Board raised this statute in resisting the motion to compel, the district court made no reference to it. Nor can we infer from its ruling that the court relied on this statute. Nevertheless, we may consider the argument. See DeVoss v. State, 648 N.W.2d 56, 61 (Iowa 2002) (district court ruling may be upheld on a ground other than the one upon which the district court relied provided the ground was urged in the district court).

Section 388.9(2) provides in relevant part:

Notwithstanding section 22.2, subsection 1 [granting every person right to examine and copy a public record], public records of a city utility ... which shall not be examined or copied as of right, include proprietary information, records of customer namés and accounts, records associated with marketing or pricing strategies, preliminary working papers, spreadsheet scenarios, and cost data, if the competitive position of the city utility ... would be harmed by public disclosure not required of a potential or actual competitor, and if no public purpose would be served by such disclosure.

Similar to Iowa Code section 22.7, section 388.9(2) merely addresses the question of whether the cited records are open to general public inspection and has no language suggesting that it applies to litigation involving a city utility. We see nothing in the statute’s language that would exempt a city utility litigant from our discovery rules regarding the information listed in the statute.

In addition, the district court made no findings regarding whether the information sought includes the information in section 388.9(2). Moreover, the Board produced no evidence that the competitive position of the city utility would be harmed by public disclosure'1 and that no public purpose would be served by such disclosure.

For all of these reasons, we conclude section 388.9(2) cannot save the district court’s ruling from reversal for abuse of discretion.

Y. Disposition.

Because we conclude the district court abused its discretion in overruling Media-corn’s motion to compel on trade secret grounds, we reverse and remand the case for farther proceedings consistent with this opinion.

REVERSED AND CASE REMANDED.


source: Caselaw Access Project

author: LARSON, Justice.

license: Public Domain

text:
    Patti L. SCHMITZ, Appellant, v. CITY OF DUBUQUE, Appellee.
    No. 02-1893.
    Supreme Court of Iowa.
    June 16, 2004.

      James G. Sawtelle and James W. Stein-berg of Duncan, Green, Brown, Langeness & Eckley, P.C., Des Moines, and Todd J. Locher of Locher & Locher, Farley, for appellant.
    Les V. Reddick of Kane, Norby & Red-dick, P.C., Dubuque, for appellee.
   LARSON, Justice.

The plaintiff, Patti Schmitz, was injured when the front wheel of her bicycle caught the edge of an asphalt overlay on a bicycle/walking trail in Dubuque. She sued the city, but the district court dismissed her case on the ground the city was immune from suit under Iowa Code section 670.4 (1997). The court of appeals affirmed, and we granted further review. We vacate the decision of the court of appeals, reverse the judgment of the district court, and remand for further proceedings.

I. Facts and Prior Proceedings.

Schmitz and three others were bicycling on a six-foot-wide asphalt trail in Dubuque when they met two joggers coming toward them. Schmitz steered her bike off the trail to make way for the joggers. When she attempted to get back on the trail, she snagged her front wheel on the edge of the asphalt overlay. She fell to the ground and sustained serious ankle injuries.

Schmitz sued the city, alleging negligence in several respects, primarily with respect to the design, construction, and maintenance of the trail. The trail was built in 1973 or 1974 on the crest of an Army Corps of Engineers flood wall adjoining the Mississippi River in Dubuque. The trail was surfaced with asphalt. The surface began to deteriorate, and in 1991 the city overlaid it with another layer of asphalt. The adjoining shoulders were not raised, however, resulting in the trail surface being approximately one and one-half inches higher than the shoulders — just enough to create a problem with the front wheel of a bicycle. Although the plaintiff alleges negligence with respect to the city’s failure to restrict usage of the trail to prevent competing uses such as jogging and biking and failing to properly “sign” the trail, her main argument concerns the city’s failure to eliminate the drop-off between the trail and the shoulders.

An organization called the American Association of State Highway and Transportation Officials (AASHTO) has promulgated standards for construction of such trails that would discourage construction with a drop-off such as found on the Dubuque trail. However, these standards were not published at the time the trail was originally built. The standards, however, were in effect in 1991, when the asphalt overlay was added. The plaintiff contends the 1991 overlay was responsible for her accident, that the drop-off between the new surface on the trail and shoulders violated the AASHTO standards, and this is sufficient to establish the city’s negligence.

On appeal the city does not challenge the application of the AASHTO standards; in fact, its argument is based solely on its claim that irrespective of any negligence, it cannot be held liable because the acts complained of by the plaintiff were discretionary functions entitling the city to immunity under Iowa Code section 670.4.

Because the basis for the decisions of the district court and the court of appeals, as well as the city’s argument on appeal, is limited to the immunity issue, we limit our discussion accordingly. We consider the decisions of the city with respect to construction of the trail and the overlay only as they bear on their exercise of a discretionary function — not as they bear on any claims of negligence.

II. The Immunity Statute.

Iowa Code section 670.4 provides this with respect to liability of governmental subdivisions, including cities:

The liability imposed by [Iowa Code] section 670.2 shall have no application to any claim enumerated in this section. As to any such claim, a municipality shall be liable only to the extent liability may be imposed by the express statute dealing with such claims and, in the absence of such express statute, the municipality shall be immune from liability [for:]
3. Any claim based upon an act or omission of an officer or employee of the municipality, exercising due care, in the execution of a statute, ordinance, or regulation whether the statute, ordinance or regulation is valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the municipality or an officer or employee of the municipality, whether or not the discretion is abused.

(Emphasis added.)

III. Our Cases.

We have discussed discretionary-function immunity in several recent cases, which track the development of our law from our adoption in Stanley v. State, 197 N.W.2d 599, 602-04 (Iowa 1972), of immunity based on the “planning/operational” analysis of Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), through more recent cases advocating • a test based on Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). See Goodman v. City of Le Claire, 587 N.W.2d 232, 238-39 (Iowa 1998) (rejecting our prior planning/operational test in favor of the Berkovitz test).

The Supreme Court in Berkovitz explained its two-step analysis in assessing discretionary-function immunity under the Federal Tort Claims Act: First,

[i]n examining the nature of the challenged conduct, a court must first consider whether the action is a matter of choice for the acting employee. This inquiry is mandated by the language of the exception; conduct cannot be discretionary unless it involves an element of judgment or choice.

Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958-59, 100 L.Ed.2d at 540-41 (citation omitted).

Second, -

a court must determine whether that judgment is of the kind that the discretionary function exception was designed to shield.- The basis for- the discretionary function exception was Congress’ desire to “prevent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” The exception, properly construed, therefore protects only .governmental actions and decisions based on considerations of public policy.

Id. at. 536-37, 108 S.Ct. at 1959, 100 L.Ed.2d at 541 (quoting United States v. Varig Airlines, 467 U.S. 797, 814, 104 S.Ct. 2755, 2764-65, 81 L.Ed.2d 660, 674-75 (1984)).

We applied the Berkovitz test in Shelton v. State, 644 N.W.2d 27 (Iowa 2002), a case heavily relied on by the district court, the court of appeals, and the City of Dubuque, because, as a case arising out of a hiking injury in a state park, it is closely analogous on its facts. (We held in Shelton that the state’s maintenance of a hiking trail was a discretionary function under the analogous state tort claims act, Iowa Code § 669.14. Shelton, 644 N.W.2d at 31): This plaintiff, however, contends Shelton is distinguishable because the state tort claims act provides a broader discretionary-function immunity than the one involved in this case under the Municipal Tort Claims Act.

We reject both the city’s reliance on Shelton and the basis for the plaintiffs distinguishing Shelton. The city relies on Shelton because of the similarity in'the facts underlying the incident; both cases involved falls from public trails. However, under Goodman and the cases following it, the circumstances underlying the public entity’s decision, and not the facts surrounding the injury itself, is the key to immunity. We also reject the plaintiffs argument that Shelton must be distinguished on the basis of different language in the Municipal Tort Claims Act as compared to the state tort claims act considered in Shelton. We reject this argument; for our purposes the statutes are effectively identical.

IV. Application of the Two-Part Test.

We begin with the observation that the city has the burden to establish its immunity. Doe v. Cedar Rapids Cmty. Sch. Dist., 652 N.W.2d 439, 446 (Iowa 2002); Hawkeye Bank v. State, 515 N.W.2d 348, 351 (Iowa 1994) (holding discretionary-function argument is defense to be raised by the defendant; it is not jurisdictional).

Also, the mere exercise of judgment is not sufficient to establish discretionary-function immunity because some form of judgment is exercised in virtually all human endeavors. See Downs v. United States, 522 F.2d 990, 995 (6th Cir.1975) (interpreting Federal Tort Claims Act).

It is not the mere exercise of judgment, however, which immunizes the United States from liability for the torts of its employees. Driving an automobile was frequently cited in the congressional reports leading to the Act as an example of “non-discretionary” activity which would be outside the discretionary function exception. Driving an automobile involves judgment. The failure to signal a turn, for. example, -may be said to represent an exercise of judgment, albeit a poor one. Yet, the automobile accident caused by a federal employee while on the job is an archetypal claim which Congress sought to place in the courts. ■ ■

Id: (citation omitted) (footnote omitted); accord Stanley, 197 N.W.2d at 603. Because the wording of the discretionary-function immunity in the federal and state statutes is identical, we look to federal, as well as Iowa, cases. See Butler v. State, 336 N.W.2d 416, 419 (Iowa 1983).

Downs provides this perspective on the discretionary-function immunity under the Federal Tort Claims Act:

The functions which [the] sparse legislative history [of the federal act] indicates were to.be [immunized] are those involving policy formulation, as distinguished from the day-to-day activities of persons not engaged in determining the general nature of the Government’s business.,

522 F.2d at 996. We have said that

the primary factor in ■ determining whether a particular activity qualifies as a discretionary function is whether the . decision to act involves the evaluation of broad policy factors. If so, the decision is more likely to be characterized as a discretionary function.

Keystone Elec. Mfg., Co. v. City of Des Moines, 586 N.W.2d 340, 348 (Iowa 1998) (citing Julius Rothschild, & Co. v. State, 66 Haw. 76, 80, 655 P.2d 877, 880-81 (Haw.1982)).

Our cases have held that liability under tort claims acts is the rule and immunity is the exception. See Graber v. City of Ankeny, 656 N.W.2d 157, 161 (Iowa 2003); Doe, 652 N.W.2d at 443. The United States Supreme Court has also shown a reluctance to broadly apply the federal discretionary-function immunity, stating:

The broad and just purpose which the statute was designed to effect was to compensate the victims of negligence in the conduct of governmental activities in circumstances like unto those in which a private person would be liable and not to leave just treatment to the caprice and legislative burden of individual private laws. Of course, when dealing with a statute subjecting the Government to liability for potentially great sums of money, this Court must not promote profligacy by careless construction. Neither should it as .a self-constituted guardian of the Treasury import immunity back into a statute designed to limit - it.

Indian Towing Co. v. United States, 350 U.S. 61, 68-69, 76 S.Ct. 122, 126, 100 L.Ed. 48, 55-56 (1955).

The general rule is that,

[bjefore immunity attaches there must be some form of considered decision, that is, one which consciously balances risks and advantages. The duty of a governmental entity is discretionary when it devolves upon the part of an officer to determine whether or not he should perform a certain act, and, if so, in what particular manner. Performance of a discretionary function requires exercise in judgment and choice and involves what is proper and just under the circumstances. A court must look at the particular conduct alleged in order to determine whether that conduct involved the exercise of discretion.
Discretionary immunity is to be construed narrowly.. The mere exercise of some judgment is not necessarily sufficient to invoke the discretionary function defense.

63 C.J.S. Municipal Corporations § 665, at 375-76 (1999) (footnotes omitted).

Our cases have required a defendant who seeks immunity to show that some form of considered judgment and choice were brought to bear on its decision. For example, we held in Madden v. City of Eldridge, 661 N.W.2d 134 (Iowa 2003), that discretionary-function immunity had not been established. That case involved a claim that the city failed to properly inspect an apartment building with respect to the installation of drywall, which dislodged and killed the plaintiffs decedent. The district court granted summary judgment, against the plaintiff on two grounds, including discretionary-function immunity. We held this was error (although the case was affirmed on another ground) because

[tjhere is no evidence in the record to suggest the building inspector engaged in this type of public policy analysis [weighing advantages and disadvantages] before he decided not to inspect the lath and wallboards. No legitimate policy-making decisions involving significant judgment were involved. The record indicates the building inspector’s action was nothing more than an ad hoc decision, tailored to the particular circumstances before him at the final inspection.

Madden, 661 N.W.2d at 140 (citing Doe, 652 N.W.2d at 445).

In Messerschmidt v. City of Sioux City, 654 N.W.2d 879 (Iowa 2002), we held the defense was not established because the city failed to establish the second element of the Berkovitz test. In Messerschmidt a volunteer worker at a Sioux City parade was injured when a city worker removed a traffic control barricade, allowing a drunk driver to strike and injure the plaintiff. We rejected the city’s immunity claim because it

ha[d] not met its burden to prove considerations based on social, economic, or political policy were involved in its decision to take the barricade down. We do not question- or test the wisdom of the city’s action, but rather the nature of the decision itself and the process used to reach it. Only those decisions based on political, social, or economic policy considerations which cannot be assessed by customary tort standards are immune. The city’s action in removing this particular barricade did not involve legislative or administrative decisions.

Messerschmidt, 654 N.W.2d at 882 (citations omitted).

In Doe, 652 N.W.2d 439, a school district was sued by parents of students who, the plaintiffs claimed, were the subjects of improper sexual conduct by a teacher. The plaintiffs’ suit was based on negligent hiring, retention, and supervision of the teacher. The school district claimed immunity on the basis the alleged actions of the district were discretionary functions. We held the district failed to establish immunity because, while

[i]t is possible ... to articulate some notion of policy considerations involved in any decision!,] ... [o]nly decisions grounded in economic, political, or social policy considerations are exempt from liability.

Doe, 652 N.W.2d at 445. We concluded:

Under the present facts, the School received an application, reviewed it, presumably interviewed [the teacher] and decided whether or not to hire him. Once on staff, the School’s decision to renew his contract did not involve policy considerations. Finally, the School’s choice to either supervise [the teacher] or not supervise him was not based on social, economic, or political policy. All of these decisions were merely “ad hoc decision[s] based on the situation confronting [the School].”

Id. (quoting Alake v. City of Boston, 40 Mass.App.Ct. 610, 614, 666 N.E.2d 1022, 1025 (1996)).

An example of the kind of decision that may be the basis of discretionary-function immunity is found in Shelton which, like the present case, involved allegedly defective design and maintenance of a publicly owned trail. The plaintiff in Shelton claimed the state was negligent in locating the trail from which the plaintiff fell, failing to maintain the trail, and failing to place guardrails or warning signs along the trail. We applied the Berkovitz two-step analysis and concluded the first step, whether the action involved a matter of choice on the part of the-actor, was established. Shelton, 644 N.W.2d at 30. We held that the second part of the test, whether the action choices were of the sort intended for protection under discretionary-function immunity, was also satisfied. One of the concerns of state officials in Shelton was the preservation of the pristine character of the Wildcat Den State Park in Muscatine County. We held the state’s decision to preserve these characteristics of the park at the expense of the safety measures suggested by the plaintiff, was entitled to discretionary-function immunity, stating:

We think the choices challenged here are the archetype of the sort intended for protection. ■ The basis for the exception is well known. It is to “prevent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” The substances used in forming the trails, the placement of the trails, the omission of guards or handrails, placement or omission of warning signs, and trail maintenance, were all matters for park professionals. These administrative choices, driven as they were by economics and aesthetics, are clearly matters into which courts in general and judges in particular are ill equipped to intrude.

Id. (quoting Goodman, 587 N.W.2d at 237). Despite the similarity of the circumstances in Shelton and the present case, i.e., injuries from use of public trails, the cases are substantially different in the application of the test for discretionary-function immunity. In the present case, as in Shelton, the first element of the test (whether the action involved a matter of choice by the government action) has been satisfied. As to the second part of the test, i.e., whether the choices at issue were of the sort intended for protection under discretionary-function immunity, the city’s proof falls short. In fact, the city produced no evidence that the choice it made with respect to whether the overlay should be done with or without grading of the accompanying shoulders was the sort of decision that the discretionary function immunity intends to protect, i.e., a decision weighing “social, economic, or political policies.” See Graber, 656 N.W.2d at 165.

Although the trail adjoined the scenic Mississippi River, no evidence was proffered to show that the decision might reasonably have been prompted by aesthetics. In fact, it is hard to imagine that shoulders one and one-half inches higher than the present shoulders would impact on the aesthetics at all. The city engineer testified that the AASHTO guidelines were in effect at the time the asphalt overlap was placed on the trail in 1991 and that the overlay did not comply with those standards. One solution, he testified, would have been to add fill along the trail to bring the shoulders up to the level of the trail itself. This would be “relatively easy” to do, rhe. testified, but “the gravel that would have been placed would no doubt, through erosion, wash down the sides. That may. have played into the factor of not creating a shoulder, but that’s speculation. ” (Emphasis added.)

We may assume that cost would be a factor in the city’s decision to add the overlay without raising the shoulders or grinding off the old asphalt. However, we do not believe cost alone can satisfy the showing of social, economic, or social policy at the heart of discretionary-function immunity. If the rule were otherwise, virtually every case would qualify for immunity. In any event, the city engineer’s opinion on the reason for not adding fill to the shoulder was “speculation.”

We believe the city has failed to carry its burden of showing the necessary discretionary basis for the decisions it made. Accordingly, we vacate the decision of the court of appeals, reverse the judgment of the district court, and remand for proceedings on the merits of the plaintiffs claims without consideration of the city’s claim of immunity. The district court shall base its decision on the record already made.

DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT REVERSED; CASE REMANDED.


author: WIGGINS, Justice.

text:
    Merlyn A. REES, Appellant, v. The CITY OF SHENANDOAH, Appellee.
    No. 03-1602.
    Supreme Court of Iowa.
    June 16, 2004.
    Mark McCormick of Belin Lamson McCormick Zumbach Flynn, A Professional Corporation, Des Moines, and Frank Murray Smith of Frank M. Smith Law Office, Des Moines, for appellant.
    Ivan T. Webber of Ahlers & Cooney, P.C., Des Moines, for appellee.
   WIGGINS, Justice.

The City of Shenandoah (City) approved the issuance of a general obligation bond in the amount of $110,000 for engineering fees, legal fees, and other costs in connection with the construction of a reservoir/lake in Page County, without submitting the question to a special city election. A resident of the City of Shenandoah, Merlyn A. Rees (Rees), filed a petition in the district court containing an appeal pursuant to Iowa Code section 384.25(2) (2003), a writ of certiorari, and a petition for injunctive relief requesting the court to void the bond and enjoin the bond from being issued. Rees subsequently amended his petition. In his amended petition, Rees claimed the construction of the reservoir/lake involves two separate and distinct projects, one a water treatment plant and water distribution system for potable water, and the other one recreational facilities or recreational facilities systems. Rees further claimed the project creating recreational facilities or recreational facilities systems is a city enterprise. Therefore, the recreational facilities project was for general corporate purposes, which required a special city election approving the issuance of the bond.

The City filed a motion to dismiss the amended petition for failure to state a claim upon which any relief may be granted. In its motion, the City claimed that pursuant to Iowa Code section 384.28, the City is not required to hold a special election because the construction of the reservoir/lake can also be reasonably construed as an essential corporate purpose for the reason that the water treatment plant and water distribution system for potable water were being built in connection with the reservoir/lake. Therefore, the City elected to approve the issuance of the bond as a general obligation bond for essential purposes under section 384.25, which does not require a special city election.

The district court dismissed the amended petition on the grounds it failed to state a claim upon which any relief may be granted. Rees appeals. Because we disagree with the district court’s decision to dismiss the amended petition for failure to state a claim upon which any relief may be granted, we reverse its decision sustaining the City’s motion to dismiss and remand the case for further proceedings consistent with this opinion.

I. Scope of Review.

Our review of a motion to dismiss is for the correction of errors at law. Mlynarik v. Bergantzel, 675 N.W.2d 584, 586 (Iowa 2004).

II. Analysis.

The construction of a water treatment plant and water distribution system for potable water is an essential corporate purpose. Iowa Code § 384.24(3)(d). If a general obligation bond is being issued for an essential corporate purpose, a special city election need not be held prior to the bond being issued by the City. Iowa Code § 384.25(2).

The construction of recreational facilities or recreational facilities systems is a city enterprise. Iowa Code § 384.24(2)(c). A city enterprise is a general corporate purpose. Iowa Code § 384.24(4)(a). If a general obligation bond is being issued for a general corporate purpose, a special city election must be held prior to the bond being issued by the City. Iowa Code § 384.26(2).

The legislature recognized the definitions of city enterprises, essential corporate purposes, and general corporate purposes are not mutually exclusive and shall be construed liberally. Iowa Code § 384.28. If a project or activity may be reasonably construed to be included in more than one of these three classifications, the city may elect at any time between the classifications and the procedures for issuance of a bond respectively applicable to each classification. Id. In other words, if the reservoir/lake project can be classified as having both an essential corporate purpose and a general corporate purpose, the city can elect that the bond be classified as being issued for an essential corporate purpose and proceed to issue the bond without a special city election. On the other hand, if the matters financed by the bond actually consist of two distinct projects, the bond that is used to finance the project having a general corporate purpose requires a special city election before issuance. Iowa Code § 384.26(2).

“A motion to dismiss is properly granted only if a plaintiffs petition ‘on its face shows no right of recovery under any state of facts.’ ” Trobaugh v. Sondag, 668 N.W.2d 577, 580 (Iowa 2003). A motion to dismiss is properly granted “only when there exists no conceivable set of facts entitling the non-moving party to relief.” Barkema v. Williams Pipeline Co., 666 N.W.2d 612, 614 (Iowa 2003). Under notice pleading, nearly every case will survive a motion to dismiss. Smith v. Smith, 513 N.W.2d 728, 730 (Iowa 1994). The petition need not allege ultimate facts that support each element of the cause of action. Id. The petition, however, must contain factual allegations that give the defendant “fair notice” of the claim asserted so the defendant can adequately respond to the petition. Schmidt v. Wilkinson, 340 N.W.2d 282, 283 (Iowa 1983). A petition complies with the “fair notice” requirement if it informs the defendant of the incident giving rise to the claim and of the claim’s general nature. Soike v. Evan Matthews & Co., 302 N.W.2d 841, 842 (Iowa 1981). We view the plaintiffs allegation “in the light most favorable to the plaintiff with doubts resolved in that party’s favor.” Id. In Cutler v. Klass, Whicher, & Mishne, 473 N.W.2d 178 (Iowa 1991), we expressed the pitfalls in filing a motion to dismiss and stated:

We recognize the temptation is strong for a defendant to strike a vulnerable petition at the earliest opportunity. Experience has however taught us that vast judicial resources could be saved with the exercise of more professional patience. Under the foregoing rules dismissals of many of the weakest cases must be reversed on appeal. Two appeals often result where one would have sufficed had the defense moved by way of summary judgment, or even by way of defense at trial. From a defendant’s standpoint, moreover, it is far from unknown for the flimsiest of cases to gain strength when its dismissal is reversed on appeal.

Cutler, 473 N.W.2d at 181.

In Rees’s amended petition he alleged:

4. The bond was approved at that hearing as a general obligation bond for an essential corporate purpose under Iowa Code section 384.24(3)(r). The Defendant asserted that the purpose of the project was to provide potable water to the residents of Shenandoah, Iowa, by the construction of a reservoir/lake in Page County, Iowa.
5. The Defendant has previously stated under penalty of criminal sanction in an application to obtain financial assistance from the state of Iowa that the reservoir/lake is being developed for recreational purposes and for the purpose of bringing economic development to Shenandoah by providing recreational facilities and/or recreational facilities systems, including a recreational lake and park.
6. The reservoir/lake consists of two (2) completely separate and distinct projects. One project is the construction of a water treatment plant and water distribution system for potable water. The other project is the development of recreational facilities and/or recreational facilities systems, including a recreational lake and park.
11. Because the bond would fund two (2) distinct projects, one of which can only reasonably be construed as for a general corporate purpose, Iowa Code section 384.28 requires the Defendant to follow the procedure applicable for the approval of a general obligation bond to fund a general corporate purpose.
15. Furthermore, even if the project could be reasonably construed as being for both a general corporate purpose and an essential corporate purpose, Defendant failed to make an election between the classifications and procedures and therefore must follow the procedure for the approval of a general obligation bond to fund the general corporate purpose.

Viewing the above allegations of the amended petition under notice pleading in the light most favorable to Rees, we think the petition gives fair notice to the City of Rees’s claims. The first claim is that at the meeting, which approved the issuance of the bond, the City did not discuss the recreational purpose of the reservoir/lake. Thus, the City did not make an election between the classifications or procedures as required under Iowa Code section 384.28. The second claim is that the reservoir/lake consists of two distinct projects, one of which requires a special city election in order for the bond to be issued. Taking these allegations as true, a court can find the City violated section 384.28 by not making a proper election to classify the entire project for an essential purpose. Additionally, a court can find that the reservoir/lake consists of two distinct projects, which required a special city election under section 384.26 prior to the issuance of the bond for recreational facilities or recreational facilities systems. Rees is entitled to proceed with his action to prove these allegations.

III. DISPOSITION.

The order of the district court sustaining the City’s motion to dismiss is reversed and this matter is remanded for further proceedings consistent with this opinion.

REVERSED AND CASE REMANDED.


author: /s/Paul H. Anderson Associate Justice

text:
    Tamera M. PETERSON, Respondent, v. CAMILIA ROSE CONVALESCENT CENTER, (n/k/a Willows Convalescent Center), and Lumbermen’s Underwriting Alliance, Relators, and Orthopedic Medicine & Surgery, Ltd., and Blue Cross and Blue Shield of Minnesota & Blue Plus, Intervenors.
    No. A04-653.
    Supreme Court of Minnesota.
    June 29, 2004.
    Hon. Thomas Johnson.
    Timothy P. Jung, Cronan Pearson Quin-livan, P.A., Minneapolis, MN, for Employer and Insurer, Relators.
    Howard S. Carp, Borkon, Ramstead, Mariani, Fishman & Carp, Ltd. Minneapolis, MN, for Employee, Respondent.
    Tom Walsh, Blue Cross Blue Shield of MN, St. Paul, MN, Chris Madigan, Orthopedic Medicine and Surgery, Ltd., Edina, MN, for Intervenors.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed March 17, 2004, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01.

Employee is awarded $1,200 in attorney fees.

BY THE COURT:

/s/Paul H. Anderson Associate Justice


author: /s/Alan C. Page Associate Justice

text:
    James SCHMIDT, Respondent, v. ARROWHEAD ELECTRIC, and MN Rural Electric Trust/CompCost, Relators.
    No. A04-604.
    Supreme Court of Minnesota.
    June 29, 2004.
    Honorable Bradley J. Behr, Compensation Judge, Office of Administrative Hearings.
    George W. Kuehner, Jardine, Logan & O’Brien, P.L.L.P., Lake Elmo, MN, for Relator.
    Patrick M. Spott, Jeremy M. Hurd, Or-man, Nord & Spott Law Office, Duluth, MN, for Respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed March 12, 2004, be, and the same is, affirmed without opinion. See Minn. R. CivApp. P. 136.01.

Employee is awarded $1,200 in attorney fees.

BY THE COURT

/s/Alan C. Page Associate Justice


author: /s/Helen H. Meyer Associate Justice

text:
    Todd D. & Larry D. DeGRAW, Respondents, v. ZENITH EXTERIORS, and General Casualty Cos., Relators, and St. Croix Orthopedic P.A., and Blue Cross Blue Shield of Minnesota, Intervenors.
    No. A04-595.
    Supreme Court of Minnesota.
    June 29, 2004.
    Hon. William R. Pederson, Workers Compensation Court of Appeals.
    M. Shannon Peterson, McCollum, Crowley, Moschet & Miller, Ltd., Minneapolis, MN, for Relators.
    Eric R. Lee, Milavetz, Gallop & Mila-vetz, PA, Coon Rapids, MN, for Respondents.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed March 8, 2004, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01.

Employee is awarded $1,200 in attorney fees.

BY THE COURT

/s/Helen H. Meyer Associate Justice


author: BLATZ, Chief Justice.

text:
    STATE of Minnesota, Respondent, v. Kristen Rae MANYPENNY, Appellant.
    No. CX-02-855.
    Supreme Court of Minnesota.
    July 1, 2004.

      Bradford William Colbert, St. Paul, MN, for Appellant.
    Mike Hatch, Minnesota State Attorney General, St. Paul, MN, Joseph Evans, Becker County Attorney, James Ward Do-nehower, Assistant Becker County Attorney, Detroit Lakes, MN, for Respondent.
    Mark A. Anderson, St. Paul, MN, for Amicus Curiae Minnesota Chippewa Tribe’s.
    Joseph Fredericks Halloran 246, St. Paul, MN, for Amicus Curiae Prairie Island Indian Community’s.
    Terrence Jon Rheault, Law Office of Charles W. LaDue, Coon Rapids, MN, for Amicus Curiae White Earth Band of Ojib-we’s.
    Frank Warren Bibeau, Leech Lake Band of Ojibwe, Cass Lake, MN, for Ami-cus Curiae Leech Lake Band of Ojibwe’s.
   OPINION

BLATZ, Chief Justice.

Appellant Kristen Rae Manypenny was convicted of fourth-degree assault of a peace officer pursuant to Minn.Stat. § 609.2231, subd. 1 (2000), obstructing legal process pursuant to Minn.Stat. § 609.50, subds. 1(2), 2(2) (2000), and disorderly conduct pursuant to Minn.Stat. § 609.72, subd. 1(1) (2000). The convictions arose out of Manypenny’s conduct and subsequent arrest by tribal Officer Chris Benson on the White Earth Reservation on April 29, 2001. Officer Benson was enforcing Minnesota criminal statutes on the reservation under an agreement entered into between the White Earth Band of Chippewa Indians (“the Band”) and Becker County.

Manypenny’s appeal to the court of appeals sets forth one principal claim: that the evidence was insufficient to sustain her conviction for assaulting a peace officer. She based this claim on her assertion that the cooperative agreement between the Band and Becker County did not give Officer Benson authority to effectuate a valid arrest of a Band member on the White Earth Reservation because the state had not properly retroceded its jurisdiction to the federal government and therefore the state retained exclusive jurisdiction over criminal matters.. State v. Manypenny, 662 N.W.2d 183, 187 (Minn.App.2003). Manypenny maintained that the federal government had not granted the states the right to enter into cooperative agreements with Indian tribes to allow tribal peace officers to enforce criminal statutes on reservations. Id. at 187. Without such- a grant of federal authority, Manypenny contended that the arrest was not “lawful” and that the elements of fourth-degree assault were not proven. Id. at 186.

The court of appeals denied Manypen-ny’s claim, holding that: (1) the state was not required to formally retrocede its jurisdiction in order to enter into cooperative agreements with tribal authorities to provide law enforcement services on Indian reservations, and therefore the evidence was sufficient because the arrest by Officer Benson was lawful; and (2) responding to an argument raised in a pro se brief, Manypenny failed to sustain her burden of demonstrating that the state’s cooperative agreement with tribal police violated the state or federal .constitutions. Id. at 188-89. It is from this decision that this appeal was brought. We affirm.

At the time of the arrest, Officer Benson was a licensed peace officer in accordance with Minn.Stat. § 626.845, subd. 1 (2002), and employed by the White Earth Band. Minnesota Statutes § 626.93 (2002) recognizes the ability of tribes to enter into cooperative agreements with state law enforcement agencies when certain requirements are met:

Subd. 2. A tribe may exercise authority under subdivision 3 only if it satisfies the following requirements:
(1) the tribe agrees to be subject to liability for its torts and those of its officers, employees, and agents acting within the scope of their employment or duties arising out of a law enforcement agency function conferred by section 626.84, subdivision 1, paragraph (h), to the same extent as a municipality under chapter 466, and the tribe further agrees, notwithstanding section 16C.05, subdivision 7, to waive its sovereign immunity with respect to claims arising from this liability;
(2) the tribe files with the board of peace officer standards and training a bond or certificate of insurance for liability coverage * * *;
(3) the tribe files with the board of -peace' officer standards and training a certificate of insurance for liability of its law enforcement officers * * *;
(4) if the tribe’s governing body has authorized its peace officers to enforce criminal laws within the boundaries of the tribe’s reservation, the tribe agrees to be subject to section 13.82 [regulating comprehensive law enforcement data] and any other laws of the state relating to data practices of law enforcement agencies.
Subd. 3. Concurrent jurisdiction. If the requirements of subdivision 2 are met and the tribe enters into a cooperative agreement pursuant to subdivision 4, the tribe shall have concurrent jurisdictional authority under this section .with the local county sheriff within the geographical boundaries of the tribe’s reservation to enforce state criminal law.

Minn.Stat. § 626.93, subds. 2, 3. The Band had fulfilled all of the statutory requirements of Minn.Stat. § 626.93 to authorize it to exercise concurrent law enforcement authority with Becker County.

The purpose of the cooperative agreement is set forth in subdivision 4:

Subd. 4. Cooperative agreements. In order to coordinate, define, and regulate the provision of law enforcement services and to provide for mutual aid and cooperation, governmental units and the tribe shall enter into agreements under section 471.59. For the purposes of entering into these agreements, the tribe shall be considered a “governmental unit” as that term is defined in section 471.59, subdivision 1.

Id., subd. 4. Importantly, subdivision 6 of Minn.Stat. § 626.93 further defines the scope of 'the statute and the cooperative agreements entered into in accordance with it. Subdivision 6 expressly states: “This section is limited to law enforcement authority only, and nothing in this section shall affect any other jurisdictional relationships or disputes involving a tribe or current reservation boundaries.” Id., subd. 6 (emphasis added).

On May 22, 2000, pursuant to subdivision 4, the Band and Becker County entered into a “cooperative agreement” for the purposes of coordinating law enforcement Services, establishing procedures, and preserving the parties’ respective jurisdictions. The agreement expressly authorizes the Band to concurrently enforce the criminal laws of the State of Minnesota within the area of the reservation that lies within Becker County, so long as the Band agrees to waive its sovereign immunity and comply with several procedural requirements, as required of all agreements entered into pursuant tó Minn.Stat. § 626.93.

The agreement entered into between the Band and Becker County specifically addresses the issue of jurisdiction. In relevant part, paragraph 5 of the cooperative agreement provides: .

Nothing in this agreement shall be construed to limit or to release the County or Sheriff from criminal jurisdiction or responsibility otherwise possessed by the County under applicable law. The Sheriff or officer in control of the Sheriffs Department shall have the authority to control any designated crime scene, and law enforcement officers of the Band will cooperate with the direction of the Sheriff or officer in charge.

With the cooperative law enforcement agreement in place, on April 29, 2001, Officer Benson was dispatched to Linda Be-vins’ home on the White Earth reservation to investigate a call regarding a disturbance of the peace. When Officer Benson arrived at the scene, he observed appellant Kristen Rae Manypenny outside, yelling at the individuals inside of the house. Officer Benson attempted to convince Manypenny to leave the property, but Manypenny refused, continuing to yell at the residents of the house and Officer Benson. He then told her that if she did not go home she would be arrested for disorderly conduct. Manypenny did not leave or desist in her behavior.

When Officer Benson attempted to place Manypenny under arrest she physically resisted the arrest, screaming and attempting to wrestle herself away from him as he handcuffed her. When put into Officer Benson’s squad car, Manypenny kicked the car and then Officer Benson, kicking him twice in the chest, once in the jaw, once in the left cheek, and at least once in the arm. As a result of the kicking, Officer Benson sustained a cut on the inside of his lip, several cuts and abrasions on his hand, and a broken watch. As he drove Manypenny to the Becker County Jail, she continued to scream at him and kick the inside of his car. Manypenny remained physically uncooperative in the jail sally-port, elevator, booking room, and on the way to her holding cell.

Pertinent' to the factual background of the case is the structure of criminal jurisdiction and law enforcement authority on tribal reservations in Minnesota, and particularly on the White Earth Reservation. Generally, state court jurisdiction over matters involving Indians is governed by federal statute or case law. State v. Stone, 572 N.W.2d 725, 728 (Minn.1997) (citing Gavle v. Little Six, Inc., 555 N.W.2d 284, 289 (Minn.1996)). As to the sovereignty of the tribes, the United States Supreme Court has consistently held that Indian tribes retain “attributes of sovereignty over both their members and their territory.” Id. (citing California v. Cabazon Band of Indians, 480 U.S. 202, 207, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987); United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975)). A tribe’s sovereignty is “dependent on, and subordinate to, only the Federal Government, not the States.” Id. (citing Cabazon, 480 U.S. at 207, 107 S.Ct. 1083; Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 154, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980)). However, it is established that state laws may be applied to tribal members within reservation boundaries if Congress has expressly so provided. Id. (citing Cabazon, 480 U.S. at 207, 107 S.Ct. 1083).

In 1953, Congress passed Public Law 280. 18 U.S.C. § 1162 (2002). Public Law 280 expressly addressed criminal jurisdiction within tribal boundaries in Minnesota and five other states, for the purposes of combating the problem of lawlessness on certain reservations and the lack of adequate tribal law enforcement. Stone, 572 N.W.2d at 729 (citing Bryan v. Itasca County, 426 U.S. 373, 379, 96 S.Ct. 2102, 48 L.Ed.2d 710 (1976)). In relevant part, Public Law 280 states that:

(a) Each of the States or Territories listed in the following table shall have jurisdiction over offenses committed by or against Indians in the areas of Indian country listed opposite the name of the State or Territory to the same extent that such State or Territory has jurisdiction over offenses committed elsewhere within the State or Territory, and the criminal laws of such State or Territory shall have the same force and effect within such Indian country as they have elsewhere within the State or Territory

18 U.S.C. § 1162(a). For Minnesota, the table includes “[a]ll Indian country within the state, except the Red Lake Reservation * * Id.

Our court has recognized that Public Law 280 grants “the state of Minnesota broad criminal and limited civil jurisdiction over all Indian country in the state, with the exception of the Red Lake Reservation.” Stone, 572 N.W.2d at 728. Important to the resolution of this case is that Public Law 280, absent retrocession, authorizes Minnesota to enforce the same criminal laws within tribal boundaries as would be enforced elsewhere in the state.

While Congress has authorized Minnesota and other states to exercise broad criminal jurisdiction over tribes, Congress further amended Public Law 280 in 1968 to allow state governments to ret-rocede their jurisdiction over the crimes committed by or against Indians on tribal land to the federal government. 25 U.S.C. § 1323 (2002). Retrocession is “a state’s return to the federal government of jurisdiction over criminal and/or civil matters previously granted to the state by Congress.” U.S. v. Merrick, 767 F.Supp. 1022, 1023 (D.Neb.1991).

On appeal, Manypenny argues that the state did not prove the necessary elements of fourth-degree assault because the arrest of Manypenny by tribal Officer Benson was not “lawful,” and therefore her conviction cannot stand. Specifically, Manypen-ny asserts that the cooperative agreement between Becker County and the Band violates Public Law 280 because Public Law 280 has conferred exclusive criminal jurisdiction for the White Earth Reservation on the State of Minnesota, and thus Officer Benson, as a tribal officer, was not a police officer affecting a lawful arrest. To support her assertion that the cooperative agreement is a violation of federal law, Manypenny sets forth two main arguments: (1) Public Law 280 preempts the cooperative agreement between Becker County and the Band because Public Law 280 clearly “orders” the State of Minnesota to assume jurisdiction over criminal law on Indian reservations; and (2) Congress has established retrocession as the method for states to divest themselves of criminal jurisdiction under Public Law 280, and the state, through Becker County, did not properly retrocede its jurisdiction.

I.

This appeal asks our court to determine whether the cooperative agreement entered into between the Band and Becker County runs afoul of Public Law 280. We are first presented with the question whether Public Law 280 preempts Minn.Stat. § 626.93 and the authorized cooperative agreements that flow from it.

Statutory interpretation raises questions of law, which we review de novo. State by Beaulieu v. RSJ, Inc., 552 N.W.2d 695, 701 (Minn.1996). This case also raises questions of jurisdiction, which this court reviews de novo. State v. R.M.H., 617 N.W.2d 55, 58 (Minn.2000).

The United States Supreme Court has formulated a preemption inquiry in the context of Indian law. State law is preempted by federal law in this context “if it interferes or is incompatible with federal and tribal interests reflected in federal law, unless the state interests at stake are sufficient to justify the assertion of state authority.” California v. Cabazon Band of Mission Indians, 480 U.S. 202, 216, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987) (quoting New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 333, 103 S.Ct. 2378, 76 L.Ed.2d 611 (1983)). Preemption inquiry should be performed with an eye towards “traditional notions of Indian sovereignty and the congressional goal of Indian self-government, including its ‘overriding goal’ of encouraging tribal self-sufficiency and economic development.” Id. Manypenny argues that the doctrine of preemption prohibits the State of Minnesota from “surrendering” its exclusive jurisdiction to the Band via the cooperative agreement. She maintains that by the enactment of Public Law 280 “Congress clearly, and explicitly, ordered the State of Minnesota to assume jurisdiction over criminal law on Indian reservations,” and, therefore, Minnesota is barred from assigning the jurisdiction conferred on it to Indian tribes. To support this argument, Many-penny cites the United States Supreme Court as acknowledging a “trend •* * * away from the idea of inherent Indian sovereignty as' a[n independent] bar to state jurisdiction and toward reliance on federal pre-emption” as a basis to hold that the cooperative agreement is preempted by federal law. Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, 476 U.S. 877, 884, 106 S.Ct. 2305, 90 L.Ed.2d 881 (1986).

We are not persuaded by Manypenny’s argument. While Manypenny is correct in her assertion that Public Law 280 expressly demonstrates Congress’s intention that Minnesota assume jurisdiction of criminal matters, the existence of the cooperative agreement does not necessarily mean that Minnesota has surrendered jurisdiction to the Band. The plain language of the cooperative agreement would suggest otherwise. The cooperative agreement specifically states that the agreement should not be “construed to limit or to release the County or Sheriff from criminal jurisdiction or responsibility otherwise possessed by the County under applicable law.” The cooperative agreement also states that the “Sheriff or officer in control of the Sheriffs Department shall have the authority to control any designated crime scene, and law enforcement officers of the Band will cooperate with the direction of the Sheriff or officer in charge,” indicating that jurisdiction has not been surrendered to the Band. Moreover, Manypenny has been prosecuted by state officials in the state courts. Therefore, we conclude that Becker County is sharing its law enforcement authority with the Band, and has not surrendered its jurisdiction to the Band.

Contrary to Manypenny’s assertions, Minn.Stat. § 626.93 and the cooperative agreements that flow from it are compatible with the federal and tribal interests reflected in federal law. As previously noted, Public Law 280 was created “to combat the problem of lawlessness on certain reservations and the lack of adequate tribal law enforcement.” Bryan, 426 U.S. at 379, 96 S.Ct. 2102; Stone, 572 N.W.2d at 729. In the statute’s own words, cooperative agreements “coordinate, define, and regulate the provision of law enforcement services and * * * provide for mutual aid and cooperation ⅜ ⅜ Minn.Stat. 626.93, subd. 4. In our view, such language reflects the same goals underlying the enactment of Public Law 280, and are shared by the state and the tribes, as reflected by the joined plea of state and amicus tribes that the cooperative agreements be allowed to continue. Consistent with the United States Supreme Court’s concerns set forth in Cabazon, the statute also encourages (1) tribal self-sufficiency by allowing the tribes to participate in the law enforcement of the state, as opposed to making tribal members rely solely on state law enforcement agencies; and (2) economic development by providing additional employment opportunities within tribal boundaries.

As further support of her preemption argument, Manypenny points to other federal statutes that expressly provide for cooperative agreements between states and tribes. Without such similar explicit provisions in Public Law 280, Manypenny argues that Congress did not intend to allow the kind of cooperative agreement at issue here, in essence interpreting Congress’s silence as a prohibition. However, the presence of provisions allowing for cooperative agreements in other areas of federal law does not make the cooperative agreements at issue here incompatible with federal and tribal- interests, and therefore such a preemption argument fails. Consequently, we hold that the doctrine of preemption does not prohibit the cooperative law enforcement agreement entered into between Becker County and the Band pursuant to Minn.Stat. § 626.93.

II.

Next, we are presented with the issue whether Minnesota unlawfully retro-ceded its jurisdiction under Public Law 280 by conferring law enforcement authority on the Band. Retrocession is “a state’s return to the federal government of jurisdiction over criminal and/or civil matters previously granted to the state by Congress.” Merrick, 767 F.Supp. at 1023. The United States Code, 25 U.S.C. § 1323(a) (1968), states that:

The United States is authorized to accept a retrocession by any State of all or any measure of the criminal or civil jurisdiction, or both, acquired by such State pursuant to the provisions of section 1162 of Title 18 * * *.

Id. Further, an executive order enacted shortly after 25 U.S.C. § 1323(a) clarifies the process by which the retrocession authorized therein becomes complete by stating:

* * * the Secretary of the Interior is hereby designated and empowered to exercise, without the approval, ratification, or other action of the President or of any other officer of the United States, any and all authority conferred upon the United States by * * * 25 U.S.C. 1323(a) * * *: Provided, That acceptance of retrocession of all or any measure of civil or criminal jurisdiction, or both, by the Secretary hereunder shall be effected by publication in the FEDERAL REGISTER of a notice which shall specify the jurisdiction retroceded and the effective date of the retrocession: Provided further, That acceptance of such retrocession of criminal jurisdiction shall be effected only after consultation by the Secretary with the Attorney General.

Exec. Order No. 11435, 33 Fed.Reg. 17,339 (Nov. 21, 1968). Manypenny argues that Congress provided this method of retro-cession by which Minnesota could have given up its exclusive jurisdiction, and that because Minnesota did not avail itself of this method it could not devise its own method for divesting itself of jurisdiction and transferring it to the tribe.

The cooperative agreement gives concurrent powers of arrest and law enforcement to state-licensed tribal police officers, and the State of Minnesota, through Becker County, retains jurisdiction to charge and prosecute individuals alleged to have engaged in criminal conduct, as defined under Minnesota Statutes. As such, the cooperative agreement is not a step-back by the state from its jurisdiction on the reservation, but more akin to an augmentation of its law enforcement powers. Therefore, retrocession of any or all of the state’s criminal jurisdiction is not an issue.

Affirmed.

      . The White Earth Band of Chippewa Indians is the White Earth Band of Ojibwe, a constituent band of the Minnesota Chippewa Tribe. Because the cooperative agreement is between Becker County and the "White Earth Band of Chippewa Indians,” the Band is referred to as such.

      . Minnesota’s fourth-degree assault statute reads, "Whoever physically assaults a peace officer licensed under section 626.845, subdivision 1, when that officer is effecting a lawful arrest or executing any other duty imposed by law is guilty of a gross misdemeanor * * Minn.Stat. § 609.2231, subd. 1 (2002) (emphasis added).

      . Minnesota Statutes § 626.845, subd. 1(d), gives the Board of Peace Officer Standards and Training the power to "license peáce officers who have satisfactorily completed certified basic training programs, and passed examinations as required by the board.” A "peace officer” is defined to include "a peace officer who is employed by a law enforcement agency of a federally recognized tribe * * * and who is licensed by the board.” Minn. Stat. § 626.84, subd. 1(c)(2) (2002).

      . Public Law 280 is the commonly used name for the collective provisions of federal legislation providing for state exercise of either civil or criminal jurisdiction in Indian country. See, e.g., State v. R.M.H., 617 N.W.2d 55, 59 (2000). While the portion of Public Law 280 relevant to this case is 18 U.S.C. § 1162, it will be referred to generally as Public Law 280 throughout this opinion.

      . See 25 U.S.C. § 2710(d) (2002) (providing for Tribal-State "compacts" regarding particular gaming activities) (held unconstitutional on other grounds in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 47, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996)); 42 U.S.C. § 654(7) (2002) (requiring a state plan for child and spousal support to provide for entering into cooperative agreements with Indian tribes).

      . -In fact, the United States Supreme Court, in dicta, appeared to allow for the possibility of such agreements in Nevada v. Hicks, 533 U.S. 353, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001). In Hicks, the Supreme Court was asked to determine whether a tribal court had jurisdiction to adjudicate alleged tortious conduct of state wardens executing a search warrant on a reservation for evidence of a crime committed outside of the reservation boundaries by Hicks, a tribal member. Id. at 357, 121 S.Ct. 2304. Justice Scalia, writing for the majority, cited Montana v. United States, 450 U.S. 544, 564, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981), for the assertion that, "Where nonmembers are concerned, the 'exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation.’ ” Hides, 533 U.S. at 359, 121 S.Ct. 2304. In a footnote to this statement, the Court noted that Montana recognized an exception to this rule where non-tribal members entered into consensual relationships with the tribe and its members, characterizing such relationships, other than commercial dealing, contracts and leases, as "private consensual relationships.” Id. at 359 ri. 3, 121 S.Ct. 2304. In a concurring opinion, Justice O’Connor disagreed with the court's narrow interpretation of the exception set forth in Montana by stating:
      The Court’s decision in Montana did not and could not have resolved the complete scope of the * * * exception * ⅜ ⅜.
      State governments may enter into consensual relationships with tribes, such as contracts for services or shared authority over public resources. Depending upon the nature of the agreement, such relationships could provide official consent to tribal regulatory jurisdiction. ⅜ * * In addition, there are a host of cooperative agreements between tribes and. state authorities to share control over tribal lands, to manage public services, and to provide law enforcement. See, e.g., * * * Minn.Stat. 626.90 et seq. (Supp. 2001) (authorizing cooperative agreements between state law enforcement and tribal peace officers) * * *.
      * * * Without a full understanding of the applicable relationships among tribal, state, and federal entities, there is no need to create a per se rule that forecloses future debate as to' whether cooperative agreements, or other forms of official consent, could ever be a basis for, tribal jurisdiction.

        Hides, 533 U.S. at 392-94, 121 S.Ct. 2304 (emphasis added). Justice Scalia responded to this criticism by stating, "The concurrence concludes * * * that we would invalidate express or implied cessions of regulatory authority * * * contained in state-tribal cooperative agreements, including those pertaining to mutual law enforcement assistance * ⅜ *. This is a great overreaching.” Id. at 372, 121 S.Ct. 2304. In sum, while the issue to be determined in Hides differs from the issue in the present case, the dicta suggests that the United States Supreme Court did not consider cooperative agreements to be displaced by federal law.

      . We agree with the state and with amicus curiae Minnesota Chippewa Tribe's assertion that "the only jurisdiction exercised in this matter was that of the State of Minnesota,” and that therefore it is unnecessary to address whether or not the Band has sovereign power to establish and enforce its own criminal code within reservation boundaries. As noted by amicus curiae Minnesota Chippewa Tribe, "Notwithstanding that exercise of [Officer Benson’s] enforcement authority there was no exercise of tribal jurisdiction, so that need not be addressed to reach the conclusion that the [ajppellant's state conviction should be affirmed.”