20070914Intitial Reply to Motion to Vacate.pdf

McDevitt & Miller LLP
Lawyers
[phone]
[phone] (Fax)
420 W. Bannock Street
O. Box 2564-83701
Boise, Idaho 83702
Chas. F. McDevitt
Dean J. (Joe) Miller
September 14, 2007
Via Hand Delivery
Ms. Jean Jewell, Secretary
Idaho Public Utilities Commission
472 W. Washington
Boise, ID 83720
Re: UWI-O7-
Dear Ms. Jewell:
Enclosed for filing in the above matter please find the original and seven (7) copies of
United Water Idaho s Initial Reply to Motion to Vacate.
An additional copy of the document and this letter is included for return to me with
your file stamp thereon.
Thank you for you assistance.
Very truly yours
McDEVITT & MILLER LLP
U1Q~
Dean J. Miller
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ORIGINAL
Dean J. Miller (ISB No. 1968)
MCDEVITT & MILLER LLP
420 West Bannock Street
O. BOX 2564-83701
Boi~e, Idaho 83702
Tel: [phone]
Fax: [phone]
ioe(ti),mcdevitt- miller .com
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BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION
OF UNITED WATER IDAHO INc., TO
AMEND AND REVISE CERTIFICATE OF
CONVENIENCE AND NECESSITY NO 143
INITIAL REPLY TO MOTION TO
VACATE
CASE NO. UWI-07-
COMES NOW United Water Idaho Inc.
, ("
United Water ) and makes the following
Initial Reply to the Motion to Vacate Hearing ("Motion ) filed by the City of Eagle ("City ) on
September 13, 2007.
Recommendation and Discussion Re2ardin2 Procedure on Motion
For the reasons set forth below United Water recommends that the Commission adopt the
following procedures with respect to the Motion:
The parties should file any desired supplemental testimony on Monday September
1 ih, as previously ordered by the Commission
United Water and Capitol Development should be directed to file a full Reply to
the City s Motion by Wednesday September 19
Based on the pre-filed Supplemental Testimony and the full Replies to the
Motion, the Commission could rule on Friday, September 21 8t whether to vacate
I Second Notice of Hearing, August 30, 2007.
INITIAL REPLY TO MOTION TO V ACA TE- 1
the hearing Scheduled for Monday September 24th. Alternatively, the Commission
could receive additional oral argument on September 24th as to whether the
hearing should be vacated.
Because United Water did not receive the City s Motion until approximately 4:45 p.m. on
Thursday September 13th 2 United Water has not had adequate time to prepare a full reply to the
Motion and it would be unreasonable to expect a complete reply before Monday September 17
2007, the date on which Supplemental Testimony is due. Because the City s Motion alleges
improper collusion between United Water and Capitol Development, United Water should have
an adequate opportunity to respond to allegations, which if believed, would constitute misleading
conduct on the part of United Water. At the same time, the procedural schedule and hearing date
should not be prematurely vacated based on allegations of one party to the proceeding.
After the Commission has the benefit of a full record, to be revealed by Supplemental
Pre-filed Testimony and a full reply to the Motion, United Water is confident the Commission
will come to the following conclusions:
The City s Motion is an attempt to divert attention away from the central fact that
the City has been unable to obtain from the Idaho Department of Water Resources
a final non-appealable order approving a water right permit to serve the
Lanewood Development and, in consequence, the City has no present ability to
serve the development
2 At about 3:20 PM on Thursday September 13, counsel for United Water received a voice mail from counsel for the
City indicating that a motion was being filed along with a general statement of the motion and grounds therefore.
An e-mail from counsel for the City followed shortly after that.
3 Whether the City's legal or physical ability to serve is a relevant factor for Commission consideration is a question
to be subsequently discussed. The fact is, however, as will be demonstrated by the Supplemental Testimony of Scott
Rhead to be filed on September 17, the City does not now have a water right pennit which would enable it to
provide water service to Lanewood.
INITIAL REPLY TO MOTION TO V ACA TE- 2
United Water has not somehow been "secretly planning" to serve the Lanewood
Development.4 The Agreement between Capitol Development and the City
recites that one of its purpose is to: " ..provide for United Water s service to the
Property in the event Eagle'is unsuccessful in it efforts to obtain water rights to
serve the Property...5 At the request of Capitol Development, United Water
executed a Confidentiality Agreement, attached hereto, which enabled United
Water personnel to read the Agreement between Capitol and the City. The
Confidentiality Agreement did not provide for any form of "secret planning
between United Water and Capitol, and there has been none.
Conclusion
For the reasons cited herein the Commission should:
Require that pre-filed Supplemental Testimony be filed on September 17th, as
previously ordered;
Require that full Replies to the City s Motion be filed by Wednesday September
19th
Thereafter enter its Order determining whether to vacate the hearing scheduled for
September 24th, or alternatively receive additional oral argument on September
24th
Dated this--.L:lday of September, 2007.
UNITED WATER IDAHO INC.
Dean J. MIller
Attorneys for United Water Idaho, Inc.
4 Motion Pg. 3.
5 Agreement attached to Motion, Pg. I of Agreement.
INITIAL REPLY TO MOTION TO V ACATE- 3
CERTIFICATE OF SERVICE
I hereby certify that on the ffiay of September, 2007, I caused to be served, via the
methodes) indicated below, true and correct copies of the foregoing document, upon:
Jean Jewell, Secretary
Idaho Public Utilities Commission
472 West Washington Street
O. Box 83720
Boise, ID 83720-0074
i i ewellCZV,puc. state.id. us
Bruce Smith
MOORE, SMITH, BUXTON & TURCKE
950 W. Bannock, Suite 520
Boise, ID 83702-5716
Robert B. Burns
MOFFA IT THOMAS
101 S. Capital Blvd. 10th Floor
O. Box 829
Boise, ID 83701-0829
Hand Delivered
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Email
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BY: '
INITIAL REPLY TO MOTION TO V ACA TE- 4
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
The Parties to this Confidentiality and Non-Disclosure Agreement ("Agreement"), are
Capital Development Inc., 6200 Meeker Place, Boise, Idaho ("Capital") and United Water Idaho
Inc., an Idaho Corporation, 8248 W. Victory Road, Boise, Idaho ("United Water (hereafter
referred to as a "Party", or collectively as "Parties
In consideration of the party s continuing cooperation in Idaho Public Utilities
Commission Case No. UWI-O7-, Capital agrees to provide to United Water a copy of that
certain Annexation and Cooperation Agreement dated May 23, 2007, between Capital and the
City of Eagle, Idaho, herein after the "Confidential Information , and United Water agrees to the
following:
Use of Confidential Information.
United Water will maintain the Confidential Information with at least the same degree of
care it uses to protect its own proprietary information, but in no case with less than reasonable
care. All persons who may be entitled to review, or who are afforded access to the Confidential
Information by reason of this Agreement shall neither use nor disclose the Confidential
Information for purposes of business or competition, and shall keep the Confidential Information
secure as a trade secret, confidential or proprietary information and in accordance with the
purposes and intent of this Agreement.
Persons Entitled to Review.
Access to confidential information shall be strictly limited to employees of the United
Water and its legal representatives who have executed an Exhibit "A" to this Agreement.
Nondisclosure Ae:reement.
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT-
Confidential Information shall not be disclosed to any person who has not signed an
Exhibit A.
Copies.
No copies or transcriptions of the Confidential Information shall be made by United
Water except as necessary to make the information available to individuals who have executed
an Exhibit "A" to this Agreement.
GoverniO2 Law and Attornevs' Fees.
This Agreement and the transactions hereunder will be governed by the laws of the State
of Idaho, U., excluding its conflict of laws principles. The parties hereby consent to the
personal judsdiction of the courts of Idaho for any dispute arising out of this Agreement. In the
event of any suit, action or proceeding arising out of or relating to this Agreement, the prevailing
party will be entitled to reasonable attorneys' fees and reasonable costs incurred.
General.
This Agreement: (i) may be amended or modified only by an express writing signed by
an authorized representative of each party; (ii) will not be construed as creating a joint venture
partnership or other form of business association; (Hi) is not assignable or delegable in whole or
in part by either party without the written consent of the other party; (iv) shall inure to the benefit
of and be binding upon the parties, their successors, the assigns of the Parties and the permitted
assigns of Recipient; (v) is in the English language only, which language shall be controlling in
all respects, and all versions of this Agreement in any other language shall not be binding on the
parties hereto; (vi) may be executed in any number of counterpart originals, each of which shall
be deemed an original instrument for all purposes, but all of which shall comprise one and the
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT-
same instrument; and (vii) may be delivered by facsimile and a facsimile of this Agreement shall
be binding as an original.
Remedies Available.
Each Party agrees that a Party hereto shall be entitled to equitable relief, including
injunction and specific performance, in the event of any breach or threatened breach of the
provision of this agreement, in addition to all other remedies available to a Party at law or in
equity .
IN WITNESS WHEREOF, the parties hereto, on their own behalf and on behalf of their
Subsidiaries, have caused this Agreement to be executed by their duly authorized representatives.
Dated this 24th day of May, 2007
CAPITAL DEVELOPMENT INC
By:
UNITED WATER IDAHO INC.
By:
Name:Name ~?t)
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Title:Title:~VI &JltfJ.6w--
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT-
EXHIBIT"
I have reviewed the foregoing Confidentiality and Non-Disclosure Agreement dated
\~'tw\ ""z'1-\and agree to be bound by the tenns and conditions of such Agreement.
~A\ 'I VA \, U,bI1-
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CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT-