[Vision2020] Legal Issues: Hawkins Water & Sewer Agreement

[Ted Moffett]

Chas et. al.

chasuk at gmail.com <http://mailman.fsr.com/mailman/listinfo/vision2020>wrote:

>*  We
*>* elected hopefully wise individuals to represent us, and that's what
*>* they did. You ask whether I think there should have been "more
open *>*public discussion" first, and my truthful response is no, I
don't.
*>* First, because I believe that there had already been ample opportunity
*>* for discussion for everyone who had anything viable to say.  Every
*>* nuance of opinion had already been expressed ad nauseum.
----------------*
*chasuk at gmail.com wrote:*
**
However, I have no
sinister plan to shut down debate, which is what you seem to imply.
----------------
I did not suggest "sinister" described your posts on the wisdom of more
public input on the Hawkins/Moscow City deal.  But when you clearly state
that you did not think the complex and important issues involved in that
deal should have been discussed in public prior to the Moscow City Council
vote, this is a view that is aiming at limiting debate, debate that might
actually impact the council's vote.

The legal and economic issues regarding selling Moscow City services across
state lines is not an issue, that I am aware of, that has been discussed ad
nauseum in public.  The issues of what sort of economic development is wise,
and water conservation, have been debated quite a bit, with continuing
substantive disagreements indicating the issues have not been resolved
conclusively among reasonable minds, in which case limiting debate is not
indicated.

Of course, arguing that the Moscow City Council was correct in not seeking
public input in this case, is perhaps not "shutting down debate," given that
there was no public debate about the exact details of this deal before
it was made, when the details were kept from the public.  You state the
issues involved had been "expressed ad nauseum," regarding "every nuance of
opinion."

I was taken aback by what seems to me to be a dogmatic and closed minded
view of these complex important issues, given the tone of your posts are
often diplomatic and open minded, with some exceptions.

Perhaps you read the legal discussion in the letter below, involving
the Idaho Attorney General's office, which suggests legal issues regarding
the Hawkins/Moscow City deal might have benefited from a public airing
before this deal was agreed upon:

 ------------------------------

*From:* Rassier, Phil
*Sent:* Tuesday, February =2, 2008 5:58 PM
*To:* 'Mark Solomon'
*Cc:* Haynes, Bob; 'rfife at ci.moscow.id.us'
*Subject:* RE: Moscow out =f state sale of water



For the reasons stated in the =track letter, the provisions of I.C. 50-324
do not provide usable authority =or the City of Moscow in the present case.
That statute provides =uthority for a city in Idaho to acquire and operate
an out of state private water =istribution system in order to supply water
to the Idaho city from an out of =tate source.

The Strack letter also addresses =he provisions of I.C. 42-401 governing
applications for use of public =aters outside the state. While this
statute certainly governs =pplications by persons from outside the state it
also governs applications from =ersons within Idaho who intend to "withdraw
water from any surface or =nderground water source in the state of Idaho and
transport it for use outside the =tate ..."  To read the statute otherwise
would mean the =egislature intended to withhold from Idaho citizens a
benefit required under the =ommerce Clause that is being provided to
non-citizens. In my view, this =ould not be a plausable reading of the
statute.

I appreciate your inquiry and hope =ou find this response helpful.

Sincerely,

Phil Rassier

Phillip J. =assier

Idaho Department of Water =esources

P.O. Box 83720

Phone: (208) =87-4808

Email: =hil.rassier at idwr.idaho.gov


 ------------------------------

*From:* Mark Solomon [mailto:msolomon at uidaho.edu]
*Sent:* Monday, February =1, 2008 11:22 AM
*To:* Rassier, Phil
*Subject:* Moscow out of =tate sale of water

Dear Phil,

I am writing you today to seek =our assistance in clarifying the statutory
authorities under which the City =f Moscow may seek IDWR permission to sell
water across the Washington =tate line to a private entity. The city
attorney, Randy Fife, and I have discussed =his matter and come to
diametrically held opinions. In the interest of =esolving this issue as
expeditiously as possible, informal guidance from IDWR, =hort of a court's
determination, may serve all the interests at hand - =specially if provided
prior to an actual application from the City of Moscow to =DWR.



50-324. CITIES AUTHORIZED TO =OINTLY PURCHASE OR LEASE, MAINTAIN OR OPERATE
A JOINT WATER SYSTEM.* All cities of this state are empowered by =rdinance
to negotiate for* and purchase or lease*


Here the state has spoken specifically to =he conditions under which cities
are authorized to distribute water across =he state line. By my
understanding of the rules of statutory =nterpretation, when a statute
speaks specifically to a circumstance, it then excludes the =xtension of the
power in question. In other words, by specifically granting =ities the power
to cooperate with adjoining cities in bordering states, the state excludes
the cities' power to cooperate with other entities in the =peration of a
joint water system across state lines. If my interpretation is correct =and
while I've read a lot of law, I am not a lawyer), then deciding how to
=roceed under 42-401 is a moot point.


If it is not mooted, then consideration =f the other statutes is required.
It is the City's position that 42-401 =rovides the authority and permitting
process for its sale of water across the state =ine. A simple reading of the
Chapter's title "APPROPRIATIONS FOR USE =UTSIDE STATE" would appear to
support that position. However, a plain =eading of the statute accompanied
by its legislative history indicates that this =tatute speaks to a set of
facts that do not fit the City's =ircumstances.

42-401 I.C. seems to be intended to =ddress facts similar to those that gave
rise to the U.S Supreme Court decision =n Sporhase v. Nebraska ex rel
=ouglas, 458 U.S. 941 (1982) and the subsequent test of New Mexico's statute
=nterpreting that decision in City of El Paso v. =eynolds (El Paso II), 597
F. Supp. 694 (D.N.M. 1984). 41-401 I.C. repeatedly =efers to an applicant's
use of water in an adjoining state as in Sporhase, not the provision of
=ater by an entity in Idaho to a different entity in another =tate:

(2)  Any person, firm =r corporation or any other entity intending to
withdraw water from =ny surface or underground water source in the state of
Idaho and =ransport it for use outside the state or to change the place or
purpose of use =f a water right from a place in Idaho to a place outside the
state shall =ile with the department of water resources an application for a
=ermit to do soŠ

 (3)  In order to approve an application under this chapter, the director
must find that the =pplicant's use of water outside the stateŠ.

 (7)  Upon submittal of the application, the applicant shall designate an
agent in the state of =daho for reception of service of processŠ.

 Sporhase*, but not with the intention of the City of =oscow to apply for a
permit to sell water across the state line. Even if =2-401 could be read so
broadly as to include such a sale, it appears the applicant =ould not be the
City of Moscow but would have to be the out-of-state entity =ho intends to
use the state's water. It is my reading that 42-401 et seq =imply does not
apply to the situation at hand no matter who is the =pplicant.> no vote on
the Hawkins deal with the city of Moscow, I am even more
> convinced claiming that "every nuance of opinon had already been expressed
> ad nauseum" is simply untrue, and expresses a dismissiveness towards the
> critics of the Hawkins deal that appears an attempt to shut down debate
and
> discussion about an important set of issues that should have been placed
> before the public for discussion, as Tom Lamar stated:

You may be right, up to a point.  The opinion I expressed was just
that -- an opinion -- and it may have been wrong.  I tend to be wrong
about as often as I am right, sometimes more.  However, I have no
sinister plan to shut down debate, which is what you seem to imply.
Debate away, please.  When I made my admittedly dismissive post, I was
of the opinion that the issue was akin to flogging a dead horse.  I am
still half of that opinion, but am feeling gently dissuaded.  Who
knows what tomorrow will bring?

Chas


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Vision2020 Post: Ted Moffett
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