23-Legal & Ethical Questions, Personal Stories, RS 2477

PURE OR POLLUTED:

A CLOSER LOOK AT UTAH’S

WATER MARKETS

Is the Salt Lake City Water Utility a water monopoly bully or kind public water steward?

SLCORP is a $787 million annual business operating inside and outside SLC corporate boundaries with immunity to Utah’s un-fair businesses practices, and anti-trust acts.
The SLC Public Utility wants to assure “surplus” sales customers that they won’t be terminated which would make the water “non-surplus” and fall outside of 10-8-14 (Exhibit 31 page 33).
How does spending millions to buy land closed to the public to prevent a Doctor from building a seasonal cabin vacant 11 months out of the year, then flooding the land with picknickers, bikers, and hikers improve water quality?
Should a city use its “watershed muscle” to break down private property rights in canyons the city exploits for extra-territorial control?
What was the motivation for Salt Lake City’s Water Utility to use three lawyers to sue a man over 1 water share the City valued at $50 in 1996?
What was the motivation for Salt Lake City’s Water Utility to use 6 lawyers to sue the small city of Payson trying to use 38.5 shares of water for wells sixty miles from Salt Lake City?
What was the motivation for Salt Lake City’s Water Utility to use 6 lawyers to sue a tiny canyon water company which used just 40.15 acre-feet of water in 2007?
What was the motivation for SLCDOPU to use 3 lawyers to sue the only 4 Utah County shareholders out of approximately 180 shareholder?
What was the motivation for SLCDOPU to sue 2,400 Utah Lake water users in 1 case alone only to declare the water “surplus” and sell a significant portion of the disputed water years later for $4.1 million?
What was the motivation for SLCDOPU to sue the State of Utah to dishonor the City’s free water agreement to relocate the State Capitol to Salt Lake City?
What was the motivation for SLCDOPU through its subsidiaries to hire lobbyists to re-write Utah’s water law over the objections of the State Engineer?
What is the motivation for SLCDOPU to keep 24,788 Salt Lake County connection “customers” which are “non-profit”?
Why would SLCDOPU (Population 180,000) require more water lawyers than the State Engineer’s Office’s 5 water lawyers which handle legal w issues for a population of 2.5 million people?
If SLCDOPU wasn’t hoarding water used in SLC $20.4 million “surplus” water sales business, then couldn’t cities like Cottonwood Heights, Alta, etc. develop their own water and become water independent like SLC?
If SLCDOPU really supported a water audit of the City’s water, then wouldn’t the City provide a transparent water inventory?
SLCDOPU has a preferred right to purchase 73,760 acre-feet of water from MWD Salt Lake & Sandy. The source of this water is outside Salt Lake County in the Provo River and Utah Lake System. How does spending $4 million in 2008 for Salt Lake County canyon water shed protection going “Keep it [Provo River water] Pure”?
Should a city enter into confidential Joint Defense Agreement with an irrigation company against a single shareholder in the same company?

“Cities/Municipalities

1. A city or municipality engages in two types of functions: governmental functions (which are like functions undertaken by the state) and proprietary functions (which are more akin to functions of a private corporation). Transportation, Inc. v. City of Falls Church, 219 Va. 1004, 1005,254 S.E. 2d 62, 63 (1979). Whether the city is entitled to immunity depends on the nature of the governmental actions.

2. The Test: Is A Function Governmental or Proprietary? a. “The underlying test [as to whether an act is governmental rather than proprietary] is whether the act is for the common good of all without the element of special corporate benefit, or pecuniary benefit. If it is, there is no liability, if it is not, there may be liability.” Hoggard, 172 Va. 145, 150, 200 S. E. 610, 612 (1939) (www.kaufcan.com/pubTemplates/dnaoutline.pdf)

Melville v Town of Alta, and Gouldner Third District Court of Utah in Salt Lake City Civil Case No. 070912899 is an active case of a private citizen standing up the effects of the Salt Lake City water monopoly.

Question: Could 25,000 Salt Lake County parties with water connections receiving federal water outside Salt Lake City corporate limits which could make a showing a $100 million overcharge have a valid federal and/or state anti-trust claim against the Salt Lake City water department?

‘A “governmental function” for the purposes of determining governmental immunity does not refer to what government may do, but includes what government alone must do and includes activities not unique in themselves, but essential to the performance of those activities that are uniquely governmental.” Rocky Mountain Thrift Stores, Inc. v. Salt Lake City–Utah Water Law: Subject Summaries page 401.

It is not essential that SLCDOPU sell $20.4 million dollars worth of surplus water outside SLC corporate limits.

Exploiting a monopoly to charge what the market will bear or providing an essential service with the highest efficiency and lowest cost to the public. It’s a management decision. Orem City chose the latter.

Is it ethical to exploit a government sanctioned monopoly like a city water department with no competition to reduce fat and inefficiencies to charge what the market will bear? A city water department uses the public’s water, public tax subsidies, public taxing authority to profit from such an essential commodity–water.

Without free market competition, there is no check and no balance against enterprising and profiteering by city water departments.

Big-Government waste and inefficiency or economies of scale and efficient operations. It’s a management decision.

It appears that if a party other than the Salt Lake City water department desires to transfer water up Big Cottonwood Canyon, Little Cottonwood Canyon, etc, then the standard line is: “SLC will aggressively contest the transfer.” A variety of “sound” reasons will be given like watershed protection, various and assundry impairment claims, turbidity, water quality impact, habitat impact, recreation impact so on and so forth; however, these same sound reasons do not apply to SLC’s own water transfers up the canyons.

“customers who are non-residents of municipalities would be left at the mercy of officials over whom they have no control at the ballot box” CP National Corporation v. Public Service Commission.

It appears Salt Lake City claims a constitutional carve out via 10-8-14 against the prohibition for a city to sell or lease water for the City’s 20.4 million dollar general water sales business outside SLC corporate limits. If this is good legal doctrine, then an equal and corresponding municipal immunity carve out against anti-trust claims would also exist. One carve out would naturally counterbalanced another carve out for the welfare, safety, and public good.

1-Does municipal immunity to Federal & State anti-trust and anti-competition statutes apply to the Salt Lake City’s 20.4 million dollar annual water wales business operating outside its corporate boundaries in Salt Lake County & Wasatch County?

Utah Code section 76-10-914 defines illegal anti-competitive activities for purposes of the Utah Antitrust Act:

(1) Every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce is declared to be illegal.

(2) It shall be unlawful for any person to monopolize, or attempt to monopolize, or combine or conspire with any other person or persons to monopolize, any part of trade or commerce.

Section 76-10-915 exempts from this definition “the activities of a municipality to the extent authorized or directed by state law.”

Wherein state law does it direct a city water department to take over the water departments of future or existing municipalities?

2-Are water rights sales of 34,237.95 acre-feet by Salt Lake City using SLC’s alter ego, Metropolitan Water District of Salt Lake City a prohibited water right transfer Utah’s Constitution?

Utah Constitution: Article XI, Sec.6 “No municipal corporation, shall directly or indirectly, lease, sell, alien or dispose of any waterworks, water rights, or sources of water supply now, or hereafter to be owned or controlled by it; but all such waterworks, water rights and sources of water supply now owned or hereafter to be acquired by any municipal corporation, shall be preserved, maintained and operated by it for supplying its inhabitants with water at reasonable charges:”

3-Does the ruling by the Utah Supreme Court in County Water Systems, Inc. v Salt Lake City 3 Utah 2d 46, 278 P. 2d 285 (1954) statutorily construct the prohibition of the acquisition of water solely for resale outside the city, construction, and the development of a 20.4 million dollar general water sales business outside Salt Lake City corporate limits?

It seems the Salt Lake City “surplus” water lease to the Town of Alta may be illegal & prohibited by the Utah Constitution. The only way the Utah Supreme Court judges could interpret U.C.A. 10-8-14 to be constitutionally compatible was to create a temporary, incidental and revert-able carve out standard.

It also seems Salt Lake City’s entire 20 million dollars general water sales business outside Salt Lake City corporate limits may be illegal and may violate the very narrow and very limited carve out created by the 1954 Utah Supreme Court holding. This would also invalidate municipal immunity against anti-trust claims.

Whether the 20 million dollar outside corporate limit sales general water sales business is legal or illegal, either way it should not be immune from anti-trust. A general water sales of business of this magnitude operating outside the City’s corporate limits is atypical, abnormal, and unforeseeable. There is no other city in Utah doing what Salt Lake City is doing in scope or magnitude.

4-Under Utah Code 10-8-2, 78-34, etc., does a town or city like Cottonwood Heights, Murray, Holladay, Town of Alta, proposed new towns like Millcreek, or new towns in Big Cottonwood Canyon and Little Cottonwood Canyon have the right of condemantion on Salt Lake City’s general water sales business’s “surplus” water rights titled in the name of Metropolitan Water District used outside Salt Lake City corporate limits under “surplus” statutes used within their respective jurisdictions?

Does any city or town have absolute condemnation rights against culinary water supplies owned by Metropolitan Water Districts, cities, as well as private water rights within their jurisdiction?

History shows monopolies failing by their own devices sooner of later, or breaking due to market pressures. It’s not if, but when and the question is the cost to the public in the interim.

Water 101: If a city has over 414 cfs in approved/unapproved well rights, yet never uses more than 14 cfs in the past 50 years, are the entire 414 cfs limited to just 14 cfs which is the historical beneficial use?

17.04.410 Applications For Appropriations Of Water Protests:

It is the city’s general policy to file a protest with the state engineer with respect to any application which is inconsistent with this chapter or with respect to a use for which no permit has been issued pursuant to this chapter, including, without limitation, changes in place of diversion, purpose of use, importation of water from other watersheds, drilling of wells, and transfer of water rights into watershed areas; provided, however, that the city’s director of public utilities and the city attorney shall determine whether to file such a protest in any particular case. (Ord. 50-93 1, 1993)

http://66.113.195.234/UT/Salt%20Lake%20City/index.htm

Utah Lake and Jordan River Dam Commission has 2 Salt Lake County seats, 2 Utah County seats, and 1 David County seat. 1 seat is from non-water right owing county which may or may not be Davis County is unclear.

Salt Lake City claims it does not control MWD Salt Lake & Sandy, yet prior directors of SLCPUD state the MWD Salt Lake & Sandy is an “alter ego” and “proxy.” Who could argue that SLC does not control its alter ego or proxy?

“It [MWD Salt Lake City] is the alter ego actually of Salt Lake City.” Charles Wilson February 11, 1981

“In order for Salt Lake City to participate in the Deer Creek Project, it was necessary for the City to set up an independent governmental entity to proxy for the City.” The Metropolitan Wate District of Salt Lake City–Provo River Project-Deer Creek Reservoir

“1. In the past Salt Lake City has acquired the rights to the major portion of its culinary water thru the medium of exchange with local ditch companies. At the present time, due to limited pump capacity, the City cannot fully utilize various Big Cottonwood and Mill Creek exchanges. The economics of increasing the pumping capacity to fully utilize the exchanges was investigated.” The Metropolitan Water District of Salt Lake City–Provo River Project-Deer Creek Reservoir

-Kevin and Jodi Conatser Utah Supreme Court case–Public access to rivers versus land owners. Should be interesting.

RS 2477 Right-of-way

K. Buxton claims to have been cited 3 times for watershed violations. Tickets were dismissed by Justice Court, District Court, and Federal Court. It appears associates have been cited approximately 39 times. Obtained via a FOIA Request: Cache-Wasatch Forest Service Office appears to have had some sort of Convict K. Buxton policy at all cost. Will try to obtain documentation.

W. Crawford

G. Schneitter

K. Toltin

J. Garside

Lee Kapaloski, lawyer:

Board of Trustees, Metropolitan Water District of Salt Lake & Sandy

Alta Town, Utah Planning Commission

Alta Town, Board of Adjustment

Friends of Alta lawyer?

Davis and Weber Canal Company lawyer?

Solitude Ski Resort lawyer?

Utah Project 2000, Board of Directors