Usually cheerful Caldwell Mayor Garret Nancolas angrily vowed in his State of the City address Tuesday to fight for Caldwell property owners’ “God-given, constitutionally protected right to drain.”
His anger was directed at Pioneer Irrigation District and its attorney, Scott Campbell, who sued the city in 2008 for installing stormwater drains that sent city runoff into the district’s canals without district permission.
In response to the lawsuit, Caldwell took an even more remarkable step: It filed a condemnation action to take over 10,000 of Pioneer’s 34,000 acres, along with its drains, canals and ditches.
“We felt we had no other alternative,” Nancolas said.
That prompted an outcry from the Idaho Water User’s Association and the Canyon County Farm Bureau, who see the city’s use of eminent domain as a threat to irrigation districts across Idaho.
Meanwhile, Caldwell and Pioneer taxpayers — who have paid the two entities’ legal costs of more than $5 million — are frustrated as well.
“It sounds to me like a couple of kids fighting,” said John Burgess, a retired Boise State University computer operator who lives next to one of the disputed drains. “And we are the ones paying for it.”
WATER WARS, AN IDAHO TRADITION
Idahoans have fought over ownership of water since the pioneers diverted rivers into ditches in the 1860s to transform the desert into croplands. Today, the fight is about too much water — water that has been draining into canals and ditches for 100 years.
Over the years, farmers and communities developed together. Thousands of miles of canals, ditches and drains were intertwined with roads, streets, homes, water pipes and sewers.
But in the past two decades, growth and development in the Treasure Valley have replaced thousands of acres of farmland with houses and yards, parking lots and paved roads. Conflicts arose as cities, counties and highway districts began encroaching into the irrigation districts. The irrigation districts are hybrid governments, somewhere between a municipality and a non-profit corporation, with power to levy taxes and fees, and established solely to deliver water.
Developers, cities and highway districts needed to build roads to cross canals and create ways to drain the stormwater that flows off their roofs, driveways and roads.
“The valley used to be all about moving water,” said Craig Quintana, communication director for the Ada County Highway District. “Now it’s also about moving people.”
Irrigation districts worried about flooding from the added water flowing into their canals and drains since houses, roads and parking lots prevent the natural absorption of water into the ground. Pioneer also has raised concerns about the poor quality of water from urban runoff.
IRRIGATION HAS THE UPPER HAND
Such conflicts prompted the Idaho Legislature, still dominated by rural lawmakers, to pass a law in 2004 that said no person or government could encroach on any irrigation district facility without its permission. In 2012, the Idaho Supreme Court ruled in Pioneer’s lawsuit, saying the law “clearly gives them the upper hand in dealing with unwarranted encroachments.”
But the law also specifically said it did not affect the condemnation rights of governments like Caldwell. This has provided some balance to negotiations between irrigation districts, developers and local governments, said Steve Price, an attorney with the Ada County Highway District.
ACHD has told irrigation districts it might resort to condemnation in limited instances to avoid construction delays and hundreds of thousands of dollars in additional costs in cases of disagreements, Price said.
In 2011, ACHD settled a five-year legal battle with Settler’s Irrigation District over ACHD’s piping of storm-water runoff into the district’s canal near the Maple Grove extension. That fight cost ACHD taxpayers $3.8 million and irrigation district customers about $1 million in legal fees.
Nancolas noted the ACHD lawsuit in his State of the City speech to bolster his argument that the city and the irrigation district haven’t been able to resolve their dispute because Campbell was then Settlers’ attorney.
“There are only two irrigation districts in this state that have had problems dealing with this so-called drainage issue, both of them represented by the same law firm, both of them suing governmental entities to take away their rights to drain,” Nancolas said.
CLASS-ACTION LAWSUIT AGAINST THE LAWYERS
In 2009, Caldwell and several Treasure Valley developers filed a class-action lawsuit against Campbell and his law firm, Moffatt Thomas, claiming they were forced to pay the law firm to get permission to encroach on Pioneer’s facilities.
City officials gave the Idaho Statesman a letter Campbell wrote the city in 2007. “Pioneer will require the city to pay attorneys’ fees and cost for the negotiation, preparation and execution of the agreement,” Campbell wrote.
City officials say Pioneer’s policy makes them have to pay the lawyers they are fighting and gives the lawyers the incentive to make the negotiations longer and more expensive.
Moffatt Thomas said in a statement to the Statesman that professional responsibility and duties to its clients mean it can’t respond to the city’s complaints in detail.
“Moffatt Thomas attorneys have always maintained the highest levels of ethics, integrity and professionalism in their representation of their clients,” the firm said. “It is unfortunate that those opposing our clients’ interests feel compelled to seek public debate of their claims.”
As part of the 2011 ACHD settlement, Settlers agreed to no longer charge attorneys fees for its review of ACHD projects. Moffatt Thomas no longer represents Settlers.
That’s meant a change, said ACHD’s Price.
“The only way to describe it is we now have a working relationship with Settlers, and we’re able to get things done,” Price said. “We spend a lot of time and effort to maintain that relationship with them.”
Dennis Baker, a Valley developer for 44 years, has watched as the relationship between irrigation districts and developers has improved. Some districts go as far as allowing their ditches and canals to be designed into developments as amenities, such as waterways at Bown Crossing.
Others, like Settlers and the Nampa-Meridian irrigation districts, have developed simple license agreements to approve encroachments. It contrasts with Pioneer’s approach, said Baker, whose development companies are involved in the class-action suit against Moffatt Thomas.
“The licensing agreement costs (in Pioneer) are running three to four times the cost of other districts,” Baker said. “The timelines are longer, too.”
PIONEER SAYS IT WANTS TALKS
Pioneer Board Chairman Alan Newbill, a Canyon County farmer, has defended Pioneer’s fees and licensing procedures. He said Caldwell is clouding the real issue of what state law requires with its accusations that Campbell’s financial interest is keeping the dispute unresolved.
“Pioneer could say the same thing about the city (attorneys), but do those types of accusations really do any good? ” Newbill said.
He said Pioneer is ready to work out an agreement with Caldwell, but it is not ready to give up its relationship with Campbell and Moffat Thomas.
“It is one of the best law firms on water law in the state,” he said.
The Canyon County Farm Bureau came out against Caldwell’s condemnation at Pioneer’s request, said Roger Batt, its executive director. He wants the two sides to find a way to resolve their differences.
“We don’t want to drive a wedge between urban and rural Idaho,” Batt said. “We just want the city to drop the lawsuit that could potentially hurt our farmers.”
Rocky Barker: 377-6484