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Hearing set for canal takeover

Published on January 24, 2013 3:01AM

Last changed on February 21, 2013 7:50AM

Roger Batt<br>

Roger Batt

Irrigation district says city's condemnation of canals would violate state laws


Capital Press

A March 7 hearing has been set to consider Pioneer Irrigation District's motion to dismiss Caldwell's effort to take over Pioneer's facilities through eminent domain.

Pioneer contends the city is exceeding its municipal authority in seeking to condemn and take over Pioneer's drains and water-delivery canals, water rights and reservoir storage and filed a motion to dismiss on Jan. 2.

Pioneer's attorney, Scott Campbell, declined to comment further on the eminent domain case, which was filed by the city on Nov. 26.

In addition to the city overstepping its authority, the motion contends the condemnation conflicts with Idaho's irrigation district law, violates legal compensation requirements, fails to support a more necessary public use of the property and fails to join the U.S. Bureau of Reclamation in the lawsuit as a defendant.

"The city's condemnation attempt exceeds the strict bounds of its municipal authority, and in several respects turns irrigation district law on its head. Neither result is permissible, as the Idaho Supreme Court advises" in other referenced cases, court documents stated.

Municipalities can only possess and exercise powers granted to them by the Idaho Constitution or Idaho Legislature, with the Legislature having the absolute power to change, modify or destroy those powers. Further restriction of municipal powers occurs when a city is exercising a proprietary function instead of a governmental function.

The city's attempt to condemn a nearly 10,500-acre portion of Pioneer's system for its own similar use constitutes a proprietary, rather than governmental function, requiring close scrutiny and the resolution of any doubts as to the city's power of condemnation, court documents state.

The city does have the authority to establish a city irrigation system but before it can exercise eminent domain, it must receive a petition signed by the majority of landowners before it "may regulate, control and supervise the distribution" of such irrigation water, court documents state.

"Absent satisfaction of the landowner petition requirement, the city has no authority to proceed with this condemnation action," the documents state.

In addition, Idaho law states the sale or transfer of irrigation district assets requires a districtwide special election triggered by an underlying petition of a sufficient number of landowners within a district and can only occur upon a majority vote. And while the city is authorized to form a municipal irrigation district, that system is not a duly organized irrigation company, and Idaho law provides that no sale or transfer shall be made unless to a duly organized irrigation company.

Another point is that just compensation must be paid in eminent domain proceedings, and the city has not made a bona fide offer to purchase or settle severance damages but merely offered to take certain Pioneer facilities off Pioneer's hands, the documents state.

The motion also states facilities cannot be condemned unless the condemner proposes to put the property to a "more necessary public use." The city proposes the same core use of the facilities for the same core reason -- the conveyance, delivery and drainage of irrigation water, court documents state.

The city "seeks the mere substitution of itself for Pioneer for the reasons it proffers. This is not, and cannot be, a 'more necessary public use,'" the documents state.

Idaho condemnation statutes also state a condemnation claim must contain the names of all owners and claimants of the property, or a statement that they are unknown, who must be styled as defendants to give those parties an opportunity to appear in the condemnation proceedings, according to the district's filings.

The city has knowledge of numerous parties but has failed to join those parties in the lawsuit. Among the parties is the Bureau of Reclamation, which legally owns Pioneer's water storage rights in three reservoirs, and the United States may not be sued without its consent, court documents state.

Pioneer alleges the core of several legal actions pending between the city and Pioneer, including the most recent eminent domain lawsuit, is whether the city can discharge its urban storm water runoff into Pioneer's irrigation system without prior written approval.

In November, the Idaho Supreme Court rejected the city's claim that it could discharge without prior approval. In an attempt to circumvent the Supreme Court's decision and Idaho law, the city filed the condemnation action seeking to acquire the portions of Pioneer's system located within Caldwell's city limits, court documents state.

The city's action seeks to accomplish what the Supreme Court and district court were unwilling to do - provide the city with carte blanche authority to use the irrigation facilities of others without having to answer for it, Pioneer asserts in court documents.

"The city's condemnation action is troubling and impermissible ... and its Complaint should be dismissed accordingly," the documents state.


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