It Ain't Over 'Til The Hippie Lady Sings

As you may have noticed by letters and stories in the Daily News, the anti-growthniks in Moscow are not going gentle into that good night with regards to the Moscow-Hawkins water deal. Accusations of smoke-filled backroom deals, juicy quid pro quos for Greater Moscow Alliance members, and cries for a recall of city council members have been flying faster than a pair of stretched tights ripping at the Renaissance Festival.

But a more sinister threat is growing behind the scenes. King Solomon, ominously quiet during the drama these past few weeks, is working behind the scenes to thwart the evil plot of the running lap dogs of capitalism.

Exhibit 1: The following e-mail exchange between Solomon and the Deputy Attorney General for the Idaho Department of Water Resources.

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From: Rassier, Phil
Sent: Tuesday, February 12, 2008 5:58 PM
To: 'Mark Solomon'
Cc: Haynes, Bob; 'rfife@ci.moscow.id.us'
Subject: RE: Moscow out of state sale of water

Mark,

This is a brief informal response to your request for my thoughts on your discussion set out below relating to the authorities under which the City of Moscow could seek authorization to provide water across the Washington state line. Many of the statutes and issues you discuss were addressed in the attached June 16, 2005 letter from Steve Strack of the Idaho Attorney General's Office to Randy Fife.

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

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

I appreciate your inquiry and hope you find this response helpful.

Sincerely,

Phil Rassier

________________________________

Phillip J. Rassier
Deputy Attorney General
Idaho Department of Water Resources
322 East Front Street
P.O. Box 83720
Boise, ID 83720-0098
Phone: (208) 287-4808
Fax: (208) 287-6700
Email: phil.rassier@idwr.idaho.gov

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

Dear Phil,

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

I understand from communications received by the City from IDWR that an application might be considered under 42-401 I.C. et seq. There is another statute within Title 50 (Municipal Corporations) that I believe may control in this instance as it is specific to the powers of a city regarding transfer of water across a state line.

50-324. CITIES AUTHORIZED TO JOINTLY PURCHASE OR LEASE, MAINTAIN OR OPERATE A JOINT WATER SYSTEM. All cities of this state are empowered by ordinance to negotiate for and purchase or lease, and to maintain and operate, in cooperation with adjoining cities of states bordering this state, the out of state water distribution system, plant and equipment of privately owned utilities used for the purpose of supplying water to the purchasing or leasing cities from an out of state source; provided, the legislature of the state in which such water distribution system, plant, equipment and supply are located, by enabling legislation, authorizes its cities to join in such purchase or lease, maintenance and operation. The city council of the cities acting jointly under this section shall have authority, by mutual agreement, to exercise jointly all powers granted to each individual city in the purchase or lease, maintenance and operation of a water supply system. (Emphasis added).

Here the state has spoken specifically to the conditions under which cities are authorized to distribute water across the state line. By my understanding of the rules of statutory interpretation, when a statute speaks specifically to a circumstance, it then excludes the extension of the power in question. In other words, by specifically granting cities the power to cooperate with adjoining cities in bordering states, the state excludes the cities' power to cooperate with other entities in the operation 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 proceed under 42-401 is a moot point.

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

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

2) Any person, firm or corporation or any other entity intending to withdraw water from any surface or underground water source in the state of Idaho and transport it for use outside the state or to change the place or purpose of use of a water right from a place in Idaho to a place outside the state shall file with the department of water resources an application for a permit to do so.

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

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

Taken together the various sections of 42-401 seem to clearly imply that the applicant is an out-of-state entity with a water right in Idaho who intends to use the water outside the state. This interpretation would coincide well with the facts in Sporhase, but not with the intention of the City of Moscow to apply for a permit to sell water across the state line. Even if 42-401 could be read so broadly as to include such a sale, it appears the applicant could not be the City of Moscow but would have to be the out-of-state entity who intends to use the state's water. It is my reading that 42-401 et seq simply does not apply to the situation at hand no matter who is the applicant.

I understand that you would not want to comment on whether a legally viable application will or should be granted, but here, it appears that there is no legal means for the city to obtain the permit they have contracted to request. An informal opinion from you (perhaps to your director that could then be passed on to the city informally?) might save the city a lot of embarrassment, time, money, and public protest. If the City then chose not to file its application, the merits of the question "should the water use be allowed" would never need to be debated and protested in public hearings.

Your thoughts and guidance would be most welcome.

Sincerely,

Mark Solomon
Moscow, ID

Knowledgable observers believe this is just the beginning of an onslaught of efforts to bring pressure upon the Idaho Department of Water Resources and their upcoming decision to approve the water supply agreement.

The 2005 Moscow Water Transfer opinion by Deputy Attorney General Steven W. Strack attached to the e-mail is not promising. Click here to view a copy of this opinion. But that was a past IDWR director's interpretation of Idaho Code. The new IDWR director, Dave Tuthill, interprets the law somewhat more favorably for the extension of water services to occur across state lines. However, this will not stop the Aquinuts from trying to push this as far as they can. The Hawkins cause célèbre, as Gordon Forgey has called it, is still very far from over.

The pro-growth Moscow City Council members, or the "Hawkins 5" as they are being derisively dubbed, are being lambasted publicly in the most concentrated smear campaign we have seen on the Palouse since Jerry Weitz had the temerity to challenge the school levy.

I admit, it is tempting to sit this one out. A business-unfriendly Moscow is very business-friendly to Whitman County and Pullman. And Whitman County is covered with the infrastructure bond and Hawkins still has water rights it can pursue if IDWR doesn't allow Moscow to sell water. Hawkins can still build their mall. Many, including myself, would like to see Whitman County control the water for development in the corridor and not be dependent on Moscow.

BUT WE CANNOT LET THE LEFTISTS WIN THIS ONE!!!!!!! Thw Moscow City Council vote to drop the appeals and agree to sell water and sewer services was a HUGE kick in the teeth to the local socialists. The constant screeching and dramatic rhetoric is evidence of that. But if they manage to stop the water sale to Hawkins, they'll be emboldened to stop every new project by beating down everyone who supports it they way they have this time. And don't forget, there will be other developments in the corridor besides Hawkins. If they win this one, King Solomon and the Knights of the Water Table will oppose every one of them. The Moscow-Hawkins deal has thawed the Cold War between Whitman County and Moscow. It has reestablished relations between our two communities. And this is important. We are a regional economy sharing regional resources. We either work together or fail alone. Plus, as I have stated before, if you believe in preserving the aquifer, Moscow municipal water service will ultimately save more water than the original Hawkins plan for development of new wells.

Someone told me yesterday that, "I attended Mayor Chaney's State of the City address today. The elephant in the room (Hawkins) was never mentioned but many could smell the peanuts...."

What can you do? Consider writing a letter to the editor in support of common sense and the Hawkins-Moscow water deal, whether you are a resident of Pullman, Moscow, Whitman County, or Latah County.

Also, consider sending the Moscow City Council members an e-mail expressing your support:

Bill Lambert
Dan Carscallen
John Weber
Walter Steed
Wayne Krauss

You can also leave a phone message for the council members at (208) 883-7080.