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SALT LAKE CITY (AP) -- Utah Sen. David Gladwell wants to refine a bill he thought he already clarified when he accepted a crucial amendment in the last minutes of the 2003 Legislature.
The issue: water rights, and how counties got the specific power to condemn them.
Since his amendments to the county powers bill passed nearly a year ago, varying interpretations of the law have fueled a simmering Summit County water war, with landowners, legislators, water districts and county officials sniping at each other. It is an outcome Gladwell neither wanted nor anticipated when he agreed to sponsor the bill that Sen. Dave Thomas helped write.
"There's only so much clarity you can bring to a statute, then you're relying on local officials to interpret the statute," said Gladwell, a Davis County Republican.
"What's tragic is that nobody knew what the consequences of the bill would be," he said. "Now we are Monday-morning quarterbacking. But that's why we convene every year."
The bill grew out of a ruling 3rd District Judge Robert Hilder made in 2001 against Mountain Regional Water District, a Summit County governmental agency which tried to take by eminent domain water rights and personal property from the private, mutual nonprofit Summit Water Distribution Co.
Mountain Regional wanted the water users' infrastructure -- its hookups and pipelines -- and company personal property, intending to continue to deliver water services to Summit Water's shareholders.
In court, Mountain Regional argued that counties have always had the implicit, traditional power of condemnation.
Hilder ruled against Mountain Regional because he saw nothing specific in Utah code that gave counties the power to condemn water rights, even though he agreed the power had traditionally been recognized.
Thomas, who has been Summit County's deputy chief attorney for civil cases since 1996, worked with the Utah Association of Counties to draft legislative language for a bill to amend county powers. Last year was Thomas' first in the Senate, where he represents parts of Davis and Weber counties.
The UAC contacted Gladwell, who since statewide redistricting in 2002 has represented part of Summit County, to sponsor the bill. Gladwell said he wanted his bill only to clarify existing law. "There was no intention to enhance any county powers they didn't already have," he said.
But it did. On page 24 of the 30-page bill, counties for the first time gained the specific power to acquire real property by condemnation.
Water rights are real property under Utah law.
The bill sailed through House and Senate committees and a vote of the full Senate, then sat for a week and a half. "Nobody was following this until the last minute," Gladwell said.
That's when Utah Farm Bureau representatives got worried that the bill might affect agricultural water.
Gladwell scrambled to craft a substitute bill to include the guarantee that agricultural water rights couldn't be condemned unless the land attached to those rights also was condemned. Rep. Ben Ferry, a Republican from Corinne, took the new version of the bill to the House floor. Twenty minutes before the session's midnight deadline on March 5, the bill passed.
Since then, Gladwell said, "there has been a misinterpretation" of the bill. During the past year, he has learned of Summit Water's history with Mountain Regional, and that their court fights have yet to end. He was shocked to learn that until his bill passed, counties didn't have specific condemnation power.
"We thought we were just clarifying existing law. That was the discussion, the understanding of everyone," he said. "I have been carrying bills for the Utah Association of Counties for years." He has opened a bill file for further amendments that he said would tie into existing laws on eminent domain.
Gladwell said he worked with Thomas before Thomas was elected to the Senate at a UAC meeting on legislation he'd written as deputy Summit County Attorney. Gladwell said he didn't know Thomas had helped draft the county power amendments in the 2003 county powers bill.
"Dave knew more than I was aware of, that may be the case," Gladwell said.
Thomas, however, rejected the notion that the bill was written to expand county powers.
"That's false," he said. "There are still people out there who are mischaracterizing it."
Thomas said that "everyone understood" counties had historic power of condemnation under the state's emininent domain statutes. He also said that Mountain Regional has no interest in trying again to condemn Summit Water's culinary water users' infrastructure.
The attempt three years ago "was the one and only," he said. "There are no plans I know of to use eminent domain to condemn water companies or water rights."
Nor, he said, had Mountain Regional ever had a plan to acquire and consolidate smaller water companies, which would have expanded its customer base and allowed it to make considerably more money.
But such a report exists, and is being passed around, said Summit Water attorney John Leo Davis. In 2000, Mountain Regional prepared a document entitled "Strategic Plan," a blueprint for consolidating water supplies into the county-run system. The plan is labeled confidential, internal use only, "but it seems to be quite widespread now," Davis said.
Oakley resident Nadine Gillmor has a copy, which she showed to a reporter, picking it from the piles of trial transcripts, court complaints and newspaper stories on every flat surface in her kitchen.
Gillmor owns 5,000 scattered acres in Summit County, some of which the county has studied repeatedly, she said. She is bitterly, personally angry with and suspicious of Thomas both for his involvement with Gladwell's bill and with Mountain Regional as a county attorney. She is worried the county will use its new condemnation powers to take her water rights and her land and pay her less than they're worth. She resents that she and others who protect their rural values are known as "cattle-guard people" to newcomers eager to develop and change the county.
Gladwell's bill is "a can of worms," Gillmor said. "It takes away our real property rights as well as infringing on our personal property rights."
Republican Rep. David Ure, a fourth-generation Kamas Valley farmer, said the bill was "sneaked" through the Legislature.
Summit Water attorney Davis said he believes Gladwell's bill was drafted specifically to aid Summit County's water district. Does he fear another Mountain Regional takeover attempt? "I don't know," he said.
During the court case before Hilder three years ago, the fair market value of the assets Mountain Regional wanted was never established. "If they were to get over the legal hurdles," Davis said, "they would probably find they couldn't afford it."
(Copyright 2004 by The Associated Press. All Rights Reserved.)
