What is a Pond?

According to the Iowa Court of Appeals, a pond is "a body of water," and a contractor's building "a pond that does not hold water," amounted to nothing more than the construction of a dam.

Via Kevin Underhill's Lowering The Bar, I learned about this story of a recent Iowa Court of Appeals decision holding that a contractor's agreement to construct a pond left the construction company liable when the pond ultimately failed to hold water due to "a porous layer of shale" on the sides of the pond. Additional coverage of the case is available here. A direct link to download a pdf version of the opinion is available here.

The construction company, Reilly, argued that it had abided by the terms of its contract to produce a pond. But the court held that the waterless pond violated Reilly's express warranty of the quality of product it would provide to its customer, Bachelder:

Reilly does not quibble with Bachelder’s testimony that Reilly told him he could “do a pond” at the staked location on Bachelder’s property. In his testimony, Reilly agreed he intended the pond would hold at least enough water so that the tires placed on the bottom for fish habitat would be covered up. By definition, a pond is “a body of water.” See American Heritage College Dictionary 1062 (3d ed. 1993); see also Iowa Code §§ 455B.171(39) (defining “water of the state” as including ponds), 462A.2(15) (defining farm pond as “a body of water”). When Reilly agreed to construct a pond on Bachelder’s property, he was expressly warranting the pond would hold water. Otherwise, Reilly would have simply been constructing a dam, without any anticipation it would capture water to form a pond. (Footnote omitted)

  In the wake of this opinion it appears that a pond without water is not a pond at all under Iowa law.

Why Wells?: Exploring the Freedom of Information Act's Ninth Exemption

Yesterday in my administrative law class, we discussed the Freedom of Information Act (FOIA) (5 U.S.C. §552). There is a lot in that act, but for purposes of this post, I am focusing on §552(b), the subsection of the act that exempts certain information from FOIA's requirement that governmental agencies provide information to parties' requests. Specifically, I am focusing on the ninth exemption to FOIA's requirements, which exempts "geological and geophysical information and data, including maps, concerning wells" from FOIA's disclosure requirements.

Other exemptions to FOIA allow the government to retain information that pertains to trade secrets, national security, or private information about agency personnel. Those exemptions make sense to me, but in light of those exemptions, I was led to wonder, "why wells?"

After some searching, I found the Department of Justice Guide to the Freedom of Information Act, which explains the breadth of the subsection nine exemption. In doing so, the guide illustrates the lack of cases that address the exemption.

I decided to look through the few cases that discuss the ninth exemption, and I found that they outlined an evolution in courts' interpretation of FOIA's ninth exemption. I explore this evolution after the jump.