Dallesport water feud continues

DALLESPORT — The long-running feud between the Dallesport Water District on one side, and Columbia Gorge Regional Airport, Klickitat County, and the City of The Dalles on the other side, ramped up to a new level on Oct. 28.

More than a year ago, the Dallesport Water District sued the airport’s co-owners, Klickitat County and the City of The Dalles, for “breach of contract, specific performance, breach of the duty of good faith and fair dealing, restitution/unjust enrichment, promissory estoppel, and to quiet title.” In response, the defendants filed an answer, alleging counterclaims against the district.

We’re going to shorten those names, as legal documents do, to District and Airport. Hang on; this gets complicated.

Despite the litigation in progress, the District and the Airport continued to have necessary ongoing communications and business dealings. Here’s a timeline of recent events:

• Sept. 26: Airport Manager Jeff Renard invites Water District Manager Robert “Scott” Dixon to a meeting prior to the Airport soliciting bids for a proposed Airport waterline.

• Sept. 28: The District replies with a 38-page letter demanding that the Airport respond to “45 interrogatory-style questions and requests for production of documents concerning the factual disputes at issue in the litigation, including disputed historical connections, charges, and contractual obligations.”

• Oct. 8: Washington’s Department of Health informs the Airport of a reported plan by the District to shut off Airport water service the following week.

• Oct. 9: The Airport requests written assurances of continued water service after receiving a report that a District board member had informed Washington’s Department of Health of a possible interruption. The District’s counsel, Josue David (J.D.) Hernandez, a New York lawyer who had received permission to represent the District in their dispute with Airport, responds that he does not expect an interruption in water service over the holiday weekend but declines to provide any assurances beyond that period.

• Oct. 13: The parties hold a video call to discuss the District’s intention to discontinue water service, including grounds for the District’s action and the timeline. Hernandez asserts that the District already has the authority to discontinue the Airport’s water service, but offers the Airport an opportunity to appear before the District’s board at an Oct. 28 meeting to explain why the Airport should not have its water turned off and to prove “that no illegal connections exist.”

• Oct. 16: Hernandez directs the Airport to produce litigation discovery materials and make public officials available for questioning at the Oct. 28 meeting.

• Oct. 21: The airport files a motion in Klickitat County Superior Court for a temporary restraining order and preliminary injunction. Several subsequent motions are filed by both parties.

• Oct. 23: The court rules that the District “be enjoined from threatening to and/or disrupting, or otherwise affecting existing water service and supply to Airport,” and schedules the Airport’s request for preliminary injunction for a hearing at 1 p.m., Oct. 28.

That was just 90 minutes before the District’s 2:30 meeting, which the District described as “a show-cause hearing on unpaid water-service and connection obligations; eleven illegal connections and alleged aiding and abetting; Water System Plan and water-law violations; Certificate of Delinquency, whole-property lien, joint-and-several recovery, maximum penalties, corrective action and enforcement.”

• Oct. 28: Judge Randall C. Krog grants a preliminary injunction protecting existing Airport water service until a further court order. The court leaves the disputed allegations of illegal connections and associated charges unresolved.

That brings us to the District’s hearing less than one hour later.

Within the first few minutes of the meeting, W.J. Morris, board member and clerk of hearings and special meetings, asked whether representatives of the city, county or airport were present. When no one responded, he announced a “default” on the record. The board then voted to close the hearing.

The meeting subsequently opened up for public comment and questions. The first question was how the court hearing went.

Hernandez took the question. He had friends in the District, and though he has spent some $5,000 in preparing, Hernandez decided to aid the District for free.

The judge had imposed an injunction, Hernandez told 30 people assembled in the Dallesport Community Center, but noted that no ruling was made on whether the Airport established illegal connections, and that it did not restrict the District in any other actions they’re allowed to take.

“You all just won today,” he said to the crowd. “This is beyond the Battle of Midway. They lost. They lost judicial review. You all are a body that gets to hold administrative hearings, and because of their cowardice, they didn’t show up.”

The state allows bodies like the District to charge as much as $5,000 per day per violation, Hernandez added, and with 541 days worth of violations with allegedly 11 illegal connections, the District can levy a fine of $500 million dollars.

Furthermore, according to Washington law, the district was able to turn that into a special kind of lien called “a certificate of delinquency.”

“So in essence, because of the actions that your board took,” Hernandez said, “the roughly 1,000 acres of that airport now have a $500 million lien on them. The law says that you get to foreclose in about 40 days ... After this foreclosure, you’ll own roughly a thousand acres.”

He later added that other penalties can raise the amount to $1.3 billion.

Two documents with the District filed with Klickitat County’s Auditor on Oct. 13 and Oct. 22 aren’t as eye-popping, however. The earlier certificate claims approximately $1.38 million in delinquent charges, penalties and costs. The later document asserts much larger potential assessments but expressly acknowledges that those proposed amounts have not yet been determined and certified as delinquent.

And whether the District can establish a legally enforceable lien, prevail in any foreclosure proceeding or levy the fine cited remains to be determined.

Lastly, before the meeting ended, Morris said the District has signed a developer’s agreement with Balsam Bluff for 884 homes. He also described recent communications with developer Mark VanderZanden; Hernandez suggests the next step is to become a city.

Darcy Long, a former The Dalles city councilor and a candidate for mayor (results unavailable at press time), told the group that she received updates when she was on the council but had no idea of the real situation. She currently serves on the board of Columbia Gorge Community College and explained that the college is not building the new hangar at the Airport and that it will just be renters.

“I hope that with the election coming up in one week,” she said, “that new leadership both in the City of The Dalles and Klickitat County will encourage you to at least try again to work with the new leadership and let us prove with actions that we want to make a change, not just lip service.”

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This is a developing story and will be updated as more information becomes available.