(dissenting).
Hawkeye By-Products, Inc., alleged that it had a firm commitment from the State to *413approve construction of the rendering plant and that the State reneged on that commitment. In the meantime, Hawkeye had spent $312,000 in development costs. When ruling on a special appearance, we must assume Hawkeye’s allegations are true. DeCook v. Environmental Sec. Corp., 258 N.W.2d 721, 725 (Iowa 1977).
Hawkeye’s cause of action turns largely on whether the State’s acts fall within the exclusions of Iowa Code section 25A.14(4) (1985). That section excludes
[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.
(Emphasis added.)
I do not agree with the majority’s conclusion that the State’s acts fall within any of the emphasized exceptions. The withdrawal of its approval would not constitute misrepresentation or deceit, unless there was a misrepresentation of a present fact. I do not believe the petition necessarily supports that theory. Moreover, it is doubtful whether there could be a claim of “interference with contract rights” as to Hawkeye, because that theory, it seems to me, is based on interference with a contract between other parties.
The bottom line is whether the acts of the State fall within the exclusions of section 25A.14(4) is at least arguable. If that is so, I believe we must approach the construction of the Tort Claims Act and its exclusions with an eye on the fairness of the result. In an analogous case, we said that
[a]ny other conclusion [than that the State had waived immunity in a contract case] would ascribe to the General Assembly an intent to profit the State at the expense of its citizens. We are unwilling to assume that the General Assembly intended the State to mislead its citizens into expending large sums to carry out their obligations to the State and, at the same time, deny to them the right to hold the State accountable for its breach of its obligations. To state the proposition is to demonstrate its injustice; indeed so unjust is it that it might amount to taking a property without due process of law.
Kersten Co. v. Department of Social Servs,, 207 N.W.2d 117, 120 (Iowa 1973) (quoting from George and Lynch, Inc. v. State, 197 A.2d 734, 736 (Del.1964)).
If a private citizen had done what the State allegedly did here, there would be no problem in getting the ear of the court under some theory of promissory estoppel. The State should be held to the same rules, until the legislature clearly says otherwise. In the absence of such language, I believe a lot may be said for two commonsense rules well known to the lay public: “A deal is a deal” and “what’s fair is fair.”
LAVORATO and SNELL, JJ., join this dissent.