20070914Initial Reply to Motion to Vacate.pdf

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Robert B. Bums, ISB No. 3744
MOFFATT, THOMAS, BARRETT, ROCK &
FIELDS, CHARTERED
101 S. Capitol Blvd., 10th Floor
Post Office Box 829
Boise, Idaho 83701
Telephone [phone]
Facsimile [phone]
rbb (fYmoffatt com
17-047.
Attorneys for Capital Development, Inc.
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
CASE NO. UWI-O7-
INITIAL REPLY OF CAPITAL
DEVELOPMENT, INC. TO THE CITY
OF EAGLE'S MOTION TO VACATE
HEARING
Intervenor Capital Development, Inc. ("CDI"), the developer of the real property
(Lanewood Estates) that is the subject of the above-captioned matter, joins in the Initial Reply
made by United Water Idaho Inc. ("United Water ) of equal filing date hereto and, in addition
supplements such Initial Reply with the below information.
The basis for the request that the hearing in this matter be continued from the
May 24 2007, hearing was explained by counsel for CDI and the City of Eagle ("Eagle ) at the
May 24 hearing as follows:
INITIAL REPLY OF CAPITAL DEVELOPMENT, INc. TO THE
CITY OF EAGLE'S MOTION TO VACATE HEARING - 1 BOI MT2:664838,
MR. BURNS: I would simply confirm that an agreement
has been reached between Capital Development, Inc. and the City
of Eagle that will allow the City of Eagle 90 days in which to try
to obtain in fact those water rights necessary to provide timely
water service to the project of Capital Development, Inc. and so in
accordance with Ms. Buxton s request, we would ask that this
matter be continued over to the first available date occurring after
August 24th of this year.
Transcript of May 24 2007, PUC Hearing at p. 9, LL. 9-17 (emphasis added). Counsel to Eagle
confirmed the foregoing intent of the parties as follows:
MS. BUXTON: Based on what Mr. Burns said, the goal
here is to keep all of the parties in the same position that they
have. Certainly everybody is prepared. All the testimony and
witnesses are ready with regard to a hearing and a decision by this
body, but we re asking for this stay to go forward for
approximately 90 days to see if we can work out those differences
in the 90-day period. . . .
!d. at p. 10, LL. 16-23 (emphasis added).
Eagle s unfounded and unsupported assertions of collusion and misconduct by
CDI and United Water are intended solely to confuse the issues before the Commission for
reasons of delay: to ensure that CDI cannot commence construction of its project this fall, so
that Eagle might have another six months or so to try "to obtain in fact those water rights
necessary" to service Lanewood Estates--which it currently does not have.! As such, Eagle
motion has been made in extreme bad faith and may well constitute actionable conduct. Further
because, as Eagle s counsel acknowledges
, "
(aJll the testimony and witnesses are ready," there
can be no possible prejudice to Eagle for the Commission (i) to give CDI and United Water a
reasonable time to respond to Eagle s groundless assertions, and (ii) to proceed forthwith to the
scheduled hearing on September 24.
See the attached three recent e-mails between counsel for Eagle and CD!.
INITIAL REPLY OF CAPITAL DEVELOPMENT, INc. TO THE
CITY OF EAGLE'S MOTION TO VACATE HEARING - 2 BOI MT2:664838.
CONCLUSION
For the foregoing reasons, CDljoints with United Water in urging the
Commission to:
Require that pre-filed supplemental testimony be filed on Monday,
September 17, as previously ordered;
Require that full replies to Eagle s motion be filed by Wednesday,
September 19; and
Thereafter enter its Order determining whether to vacate the hearing
scheduled for September 24 or, alternatively, to receive additional oral
argument on September 24.
RESPECTFULLY SUBMITTED this 14th day of September 2007.
MOFFATT, THOMAS, BARRETT, ROCK &
FIELDS, CHARTERED
INITIAL REPLY OF CAPITAL DEVELOPMENT, INc. TO THE
CITY OF EAGLE'S MOTION TO VACATE HEARING - 3 BOI MT2:664838.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 14th day of September 2007, I caused a true
and correct copy of the foregoing INITIAL REPLY OF CAPITAL DEVELOPMENT, INc.
TO THE CITY OF EAGLE'S MOTION TO VACATE HEARING to be served by the
method indicated below, and addressed to the following:
Gregory P. Wyatt
UNITED WATER IDAHO, INC.
P. O. Box 190420
Boise, ill 83719
E-mail: greg.wyatt(fYunitedwater.com
(X) U.S. Mail, Postage Prepaid
( ) Hand Delivered
( ) Overnight Mail
(X) Facsimile
Dean J. Miller
McDEVITT & MILLER, LLP
420 West Bannock Street
P. O. Box 2564
Boise, ill 83701
E-mail: joe(fYmcdevitt-miller.com
(X) u.S. Mail, Postage Prepaid
( ) Hand Delivered
( ) Overnight Mail
(X) Facsimile
Scott Woodbury
Deputy Attorney General
IDAHO PUBLIC UTILITIES COMMISSION
472 West Washington Street
P. O. Box 83720
Boise, ill 83720-0074
E-mail: scott.woodbury(fYpuc.idaho.gov
...
(X) U.S. Mail, Postage Prepaid
( ) Hand Delivered
( ) Overnight Mail
(X) Facsimile
Bruce M. Smith
MOORE, SMITH, BUXTON & TURCKE, CHTD.
950 West Bannock Street, Suite 520
Boise, ill 83702
E-mail: bms(fYmsbtlaw.com
(X) U.S. Mail, Postage Prepaid
( ) Hand Delivered
( )
Overnight Mail
(X) Facsimile
J. Ramon Yorgason, President
Capital Development, Inc.
6200 N. Meeker Place
Boise, ill 83713
E-mail: capdev(fYcab leone.net
(X) U.S. Mail, Postage Prepaid
( ) Hand Delivered
( )
Overnight Mail
(X) Facsimile
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obert B. B
INITIAL REPLY OF CAPITAL DEVELOPMENT, INC. TO THE
CITY OF EAGLE'S MOTION TO VACATE HEARING - 4 BOI MT2:664838.
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From:
To:
Date:
Subject:
Bruce M. Smith" oe:::BMS~msbtlaw.com;:.
Bob Burns" oe:::RBB~moffatt.com;:.
, "
Susan E. Buxton" oe:::SEB~msbtlaw.com;:.
9/14/20079:47:32 AM
RE: Eagle Status Report to Lanewood/CDI
Bob-- We will have a settlement meeting on Tuesday as a result of the
actions by your client. There will be a number of items to discuss and
we will not start the process, nor jeopardize the City's interests, in a
series of emails. Bruce
-----
Original Message-----
From: Bob Burns (mailto:RBB~moffatt.com)
Sent: Thursday, September 13 , 2007 6:50 PM
To: Susan E. Buxton
Cc: Chris Yorgason; Dave Yorgason; Ramon Yorgason; Joe Miller; Bruce M.
Smith
Subject: Re: Eagle Status Report to Lanewood/CDI
Susan , as 1 have now asked you and Bruce repeatedly to do without
success, would you please provide me with reasonable documentation
establishing that the City has water rights that can be accessed at the
boundary of the Lanewood development to service that property. The fact
that the City may have water rights in other locations but which cannot
be used to service the Lanewood development is both misleading and
meaningless for the purposes of the present PUC proceeding. Regards.
Bob
Robert B. Burns
Moffatt, Thomas, Barrett, Rock & Fields, Chtd.
101 S. Capitol Blvd., 10th Floor
P. O. Box 829
Boise, 10 83701-0829
208-345-2000
800-422-2889
208-385-5412 (direct)
208-385-5384 (fax)
rbb~moffatt. com
;:.;:.;:. "
Susan E. Buxton" oe:::SEB~msbtlaw.com;:. 9/13/200712:25 PM
;:.;:.;:.
Bob:
Pursuant to the May 23 , 2007 agreement between CDI and the City of
Eagle, the City has been providing periodic updates on the City water
services. With this email , the City is notifying CDI that it has
sufficient water rights to serve the development. However, the City
has
not received an annexation application or any plans from CDI as
required
by the Agreement. Please let me know when CDI will be submitting the
annexation application and the plans to the City for review.
Thank you
Susan
Susan E. Buxton
Moore Smith Buxton & Turcke, Chartered
950 W. Bannock Street, Suite 520