<div>Chas et. al.</div>
<div> </div>
<div><a href="http://mailman.fsr.com/mailman/listinfo/vision2020">chasuk at gmail.com</a> wrote:<br><br>><i> We<br></i>><i> elected hopefully wise individuals to represent us, and that's what<br></i>><i> they did. You ask whether I think there should have been "more open </i>><i> public discussion" first, and my truthful response is no, I don't.<br>
</i>><i> First, because I believe that there had already been ample opportunity<br></i>><i> for discussion for everyone who had anything viable to say. Every<br></i>><i> nuance of opinion had already been expressed ad nauseum.<br>
----------------</i></div>
<div><em><a href="mailto:chasuk@gmail.com">chasuk@gmail.com</a> wrote:</em></div>
<div><em></em> </div>
<div>However, I have no<br>sinister plan to shut down debate, which is what you seem to imply.</div>
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<div>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.</div>
<div> </div>
<div>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.</div>
<div> </div>
<div>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." </div>
<div> </div>
<div>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. </div>
<div> </div>
<div>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:</div>
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<p class="MsoNormal" style="MARGIN-BOTTOM: 12pt"><b><font size="2"><span style="FONT-WEIGHT: bold; FONT-SIZE: 10pt; FONT-FAMILY: Tahoma">From:</span></font></b><font face="Tahoma" size="2"><span> Rassier, Phil <br><b><span style="FONT-WEIGHT: bold">Sent:</span></b> Tuesday, February =2, 2008 5:58 PM<br>
<b><span style="FONT-WEIGHT: bold">To:</span></b> 'Mark Solomon'<br><b><span style="FONT-WEIGHT: bold">Cc:</span></b> Haynes, Bob; '<a href="mailto:rfife@ci.moscow.id.us">rfife@ci.moscow.id.us</a>'<br><b><span style="FONT-WEIGHT: bold">Subject:</span></b> RE: Moscow out =f state sale of water</span></font></p>
<p class="MsoNormal"><font face="Arial" color="blue" size="2"><span> </span></font></p>
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<p class="MsoNormal"><font face="Times New Roman" size="3"><span>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.</span></font></p>
<p class="MsoNormal"><font face="Times New Roman" size="3"><span>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.</span></font></p>
<p class="MsoNormal"><font face="Times New Roman" size="3"><span>I appreciate your inquiry and hope =ou find this response helpful.</span></font></p>
<p class="MsoNormal"><font face="Times New Roman" size="3"><span>Sincerely,</span></font></p>
<p class="MsoNormal"><font face="Times New Roman" size="3"><span>Phil Rassier</span></font></p>
<p class="MsoNormal"><font face="Arial" color="blue" size="2"><span>Phillip J. =assier</span></font></p>
<p class="MsoNormal"><font face="Verdana" color="blue" size="2"><span>Idaho Department of Water =esources</span></font></p>
<p class="MsoNormal"><font face="Verdana" color="blue" size="2"><span>P.O. Box 83720</span></font></p>
<p class="MsoNormal"><font face="Verdana" color="blue" size="2"><span>Phone: (208) =87-4808</span></font></p>
<p class="MsoNormal"><font face="Verdana" color="blue" size="2"><span>Email: =<a href="mailto:hil.rassier@idwr.idaho.gov">hil.rassier@idwr.idaho.gov</a></span></font></p>
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<p class="MsoNormal" style="MARGIN-BOTTOM: 12pt"><b><font size="2"><span style="FONT-WEIGHT: bold; FONT-SIZE: 10pt; FONT-FAMILY: Tahoma">From:</span></font></b><font face="Tahoma" size="2"><span> Mark Solomon [mailto:<a href="mailto:msolomon@uidaho.edu">msolomon@uidaho.edu</a>] <br>
<b><span style="FONT-WEIGHT: bold">Sent:</span></b> Monday, February =1, 2008 11:22 AM<br><b><span style="FONT-WEIGHT: bold">To:</span></b> Rassier, Phil<br><b><span style="FONT-WEIGHT: bold">Subject:</span></b> Moscow out of =tate sale of water</span></font></p>
<div>
<p class="MsoNormal"><tt><font face="Courier =ew" color="black" size="2"><span style="FONT-SIZE: 10pt; COLOR: black">Dear Phil,</span></font></tt></p></div>
<div>
<p class="MsoNormal"><tt><font face="Courier =ew" color="black" size="2"><span style="FONT-SIZE: 10pt; COLOR: black">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.</span></font></tt></p>
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<p class="MsoNormal"><tt><font face="Courier =ew" color="black" size="2"><span style="FONT-SIZE: 10pt; COLOR: black">50-324. CITIES AUTHORIZED TO =OINTLY PURCHASE OR LEASE, MAINTAIN OR OPERATE A JOINT WATER SYSTEM.<b><span style="FONT-WEIGHT: bold"> All cities of this state are empowered by =rdinance to negotiate for</span></b> and purchase or lease<b><span> </span></b></span></font></tt></p>
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<div>
<p class="MsoNormal"><font face="Courier =ew" color="black" size="2"><span style="FONT-SIZE: 10pt; COLOR: black; FONT-FAMILY: 'Courier New'"><br><tt><font face="Courier New">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.</font></tt><br>
<br><br><tt><font face="Courier New">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.</font></tt><br>
<br><tt><font face="Courier New">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<i><span style="FONT-STYLE: italic"> Sporhase v. Nebraska ex rel =ouglas</span></i>, 458 U.S. 941 (1982) and the subsequent test of New Mexico's statute =nterpreting that decision in<i><span style="FONT-STYLE: italic"> City of El Paso v. =eynolds</span></i> (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<i><span style="FONT-STYLE: italic"> Sporhase</span></i>, not the provision of =ater by an entity in Idaho to a different entity in another =tate:</font></tt></span></font></p>
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<p class="MsoNormal"><tt><font face="Courier =ew" color="black" size="2"><span style="FONT-SIZE: 10pt; COLOR: black">(2) <u> Any</u> person, firm =r corporation or any other<u> entity intending to withdraw water</u> from =ny surface or underground water source<u> in the state of Idaho and =ransport it for use outside the state</u> or to change the place or purpose of use =f a water right from a place in Idaho to a place outside the state<u> shall =ile</u> with the department of water resources<u> an application</u> for a =ermit to do soŠ</span></font></tt></p>
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<p class="MsoNormal"><tt><font face="Courier =ew" color="black" size="2"><span style="FONT-SIZE: 10pt; COLOR: black">(3) In order to approve an application under this chapter, the director must find that<u> the =pplicant's use of water outside the state</u>Š.</span></font></tt></p>
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<p class="MsoNormal"><tt><font face="Courier =ew" color="black" size="2"><span style="FONT-SIZE: 10pt; COLOR: black">(7) Upon submittal of the application,<u> the applicant shall designate an agent in the state of =daho</u> for reception of service of processŠ.</span></font></tt></p>
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<div>
<p class="MsoNormal"><font face="Times New Roman" size="3"><span> Sporhase</span>, 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.</font><font face="Courier New" color="black" size="2"><span>> no vote on the Hawkins deal with the city of Moscow, I am even more<br>
> convinced claiming that "every nuance of opinon had already been expressed<br>> ad nauseum" is simply untrue, and expresses a dismissiveness towards the<br>> critics of the Hawkins deal that appears an attempt to shut down debate and<br>
> discussion about an important set of issues that should have been placed<br>> before the public for discussion, as Tom Lamar stated:<br><br>You may be right, up to a point. The opinion I expressed was just<br>that -- an opinion -- and it may have been wrong. I tend to be wrong<br>
about as often as I am right, sometimes more. However, I have no<br>sinister plan to shut down debate, which is what you seem to imply.<br>Debate away, please. When I made my admittedly dismissive post, I was<br>of the opinion that the issue was akin to flogging a dead horse. I am<br>
still half of that opinion, but am feeling gently dissuaded. Who<br>knows what tomorrow will bring?<br><br>Chas<br></span></font></p></div>
<div><br>----------------------------------------</div>
<div>Vision2020 Post: Ted Moffett</div>