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City lawsuit fights for property rights

Published on February 1, 2013 3:01AM

Last changed on March 1, 2013 9:10AM




For the Capital Press

Norm Semanko is at it again with his scare tactics and misinformation motivated by his position in the law firm representing Pioneer Irrigation District in its lawsuit against the city of Caldwell. The fact that Semanko is an attorney at the law firm that represents PID, and thus reaps huge attorneys' fees from refusing to negotiate with the city, should immediately disqualify any claims he makes in this matter.

The truth is this: For years, Caldwell took issue with the conduct of PID's outside attorney, Scott Campbell of the law firm Moffatt Thomas, including the scheme by which Campbell would withhold license agreements unless Caldwell residents and businesses paid thousands of dollars in non-negotiable fees directly to Campbell's firm, Moffatt Thomas.

In 2008, in what Caldwell believes was an obvious punitive response to Caldwell's objection to the attorney fee scheme, Campbell filed a lawsuit seeking to take away property rights from Caldwell residents. Specifically, PID's misguided lawsuit sought to declare Caldwell's Storm Water Program illegal, that PID had exclusive ownership of existing drainage infrastructure in Caldwell, and the forced removal of over 200 stormwater discharge points in the city.

While PID's 2008 lawsuit remains ongoing, PID has suffered major defeats. The trial court threw out PID's challenge to Caldwell's Storm Water Program and summarily dismissed PID's challenges to about 180 discharge points. Moreover, the Idaho Supreme Court held that PID does not have exclusive rights to the stormwater infrastructure. While PID tries to spin an Idaho Supreme Court ruling regarding "legal deference" as a victory, PID still bears the burden of showing the remaining discharge points unreasonably interfere with the delivery of irrigation water, a burden that PID knows it cannot honestly satisfy.

Caldwell did not initiate the litigation and has tried time and again to resolve the lawsuit in a way that saves money and preserves private property rights.

Caldwell has repeatedly proposed to PID to end the litigation and agree to transfer certain rights and responsibilities to preserve private property rights for PID's agricultural and residential customers.

Caldwell filed the eminent domain action as a last resort to protect property rights when it became apparent that PID would not negotiate with Caldwell and refused to discuss a strategic facility transfer. Unfortunately, PID's attorneys have elected to pursue an expensive, misguided campaign to consolidate power and deprive property owners of valuable rights.

If Caldwell were to control and maintain the transferred infrastructure, there will no longer be costly, lengthy, and contentious issues with PID because Caldwell will operate the infrastructure under the guidelines in its approved storm water plan and will not be subject to PID's policies that hamper development and fail to protect the interests of PID's customers and Caldwell's residents.

Moreover, Caldwell's ability to control and maintain the transferred irrigation and drainage infrastructure will protect irrigation and surface drainage rights, protect water quality, and ensure the safe discharge of stormwater in compliance with the city's MS4 permit and the city's EPA approved storm water management plan.

If Caldwell does not control and maintain the drainage and irrigation facilities covered by the current project and PID prevails in the litigation, the city could spend upwards of $100 million building redundant drainage infrastructure.

In addition to saving real money by ending the lawsuits and avoiding spending huge sums of money to build a redundant system, Caldwell will operate the transferred infrastructure in ways that save ratepayers' money on an ongoing basis, while protecting and enhancing the delivery and drainage for agricultural users and Caldwell residents. Specifically, the city respects and values the agricultural community and is fully committed to meeting the needs of all agricultural interests.

The city truly hoped to work in cooperation with PID to accomplish the facilities transfer without needing to use the last resort option. The city believes the Idaho Water Users Association and PID's legal team are doing a very real, and costly, disservice to PID's patrons and its board of directors, but absent truly meaningful negotiation, the city made the decision to move forward in the only way it can to finally resolve these issues in a way that protects property rights and saves money.

Garret Nancolas is the mayor of Caldwell, Idaho.


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