E A R T H Q U A K E ! ! !
No we aren’t having an earthquake. This is the title to Reed Smith’s Earthshaking Good News email to the Modesto City Council.
Councilpersons:
I have some great news from the Bay Area. According to Peter Drekmeier, Program Director for the Tuolumne River Trust, Thursday evening at the Bay Area Water Supply and Conservation Agency (BAWSCA) meeting, Mr. Steven Ritchie, Assistant General Manager, of the San Francisco Public Utilities Commission, made a presentation regarding the proposed MID water sale. During a response to a question from the audience from Drekmeier, he informed the BAWSCA audience that a revised contract was due to be returned to MID and one of the significant modifications from the first DRAFT was that the SFPUC would no-longer be responsible for ANY legal cost associated with litigation directed at MID (please keep in mind that this news is 2nd hand). I am in the process of obtaining the audio file of the meeting, and will forward it to you as soon as it is available.
Anticipated modification to: DRAFT MID-SFPUC AGREEMENT Page 6 of 15 G. Litigation; Cooperation in Litigation. The Parties will vigorously defend any legal challenge to this Agreement or its implementation. The parties will reasonably cooperate, to the extent permitted by law, in the defense and any settlement of any claims challenging the validity of this Agreement or its implementation; including but not limited to claims brought under CEQA, NEPA, the Clean Water Act, state or federal Endangered Species Acts The parties agree to jointly retain outside counsel. Unless otherwise provided in this Agreement, SFPUC agrees to pay litigation fees and costs, including costs of the outside counsel.
Subsequent to that event, Mr Todd Sill was advised by MID Director Glen Wild that Sill should “throw away the original DRAFT proposed contract, as it is going to be revised”. This begs the question as to whether a revised document, containing the SFPUC modification to financial responsibility for legal costs, was distributed to Directors on Friday, prior to COM’s letter being hand-delivered. Friday morning, MID staff stated that a revised contract was expected to be posted on the website soon. This raises further the assertion this past Tuesday that Director Wild’s support for the sale is solely financial, that being that his justification of the sale is to get money for MID infrastructure needs. With the arrival of millions in potential legal costs as a co-habitor of any contract to sell water, the income from the 2,240 AF sale becomes revenue neutral to MID on day one, thus erasing Director Wilds apparent hard-fought invention of a justification.
Ah, but I digress. The community has expressed grave concern regarding making the SFPUC the lead agency on EIR’s for waters being transferred in this sale agreement. Of course, we feel that MID and it’s constituents should maintain primacy in all environmental assessments, not the SFPUC.
Parallel to that concept, we feel that MID should maintain primacy in controlling and financing all litigation resulting from their insightful and studied decision to sell our surface water to the SFPUC. Certainly MID’s General Counsel has never strayed from accurately predicting positive outcomes for his clients, e.g., Valley Bio-Energy v MID.
I wanted to share this good news with the you, the City’s fiduciary decision makers, as this turn-of-events raises the question regarding the probability of the COM recovering legal costs from MID, should the COM determine that MID’s majority of Director’s ethics have failed their constituents when they knowingly breach the Amended Treatment and Delivery Agreement.
It was a rather grotesque moment when MID’s General Manager, Allen Short, told the Stanislaus Farm Bureau Board on May 1, 2012, (parodied – na, na, na, na, na, na) “we expect at least three lawsuits, and it is no big deal, ’cause the SFPUC is paying for all MID’s legal costs.” (parodied – we can be as stupid as we want, ’cause there is NOTHING you can do to stop us, ha, ha, ha.) Well this situation appears to have changed . . . oopsie, no more FREE big-time SF lawyers?
Will this change in legal financial responsibility cause MID’s Directors to pause when considering voting for the proposed sale on June 26, 2012? Not if the May 22, 2012 Board meeting is any indication. For the record, any observer will conclude there are four (4) intractable Directors who have clearly declared they are for this sale, no matter what the contract says.
I commend you for initiating the first steps in securing your water rights. I am sure your constituents expect nothing less from you.
Eye On Modesto 