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Rural Water Dist. No. 1 v. Wilson, Kan., City of

ELR Citation: 31 ELR 20559
Nos. 98-3337 et al., 243 F.3d 1263/(10th Cir., 03/22/2001)

The court affirms in part and remands in part a district court decision that although a city was encroaching on a water district's service area, the water district was not making service available because it was charging customers to build the water system infrastructure. The water district borrowed money from the Farmer's Home Administration pursuant to the Consolidated Farm and Rural Development Act, thereby gaining protection from competition under §1926 of the Act. The city did not dispute that it provided water service to the water district's service area in violation of §1926, but instead argued that §1926 does not apply because the water district did not make service available in the areas at issue. The court first holds that although the pipes-in-the-ground test is the primary focus in considering whether a water district has made service available, the reasonableness of cost to be borne by a prospective customer is a relevant inquiry in determining whether the water district made service available under §1926. The legislative history of the Act reflects concerns with cost, and the language in the statute does not exclude consideration of costs. Therefore, with regard to one area at issue on remand, if the city can show that the water district's rates or assessments were unreasonable, excessive, and confiscatory, then the water district did not make service available under §1926. The court then holds that with regard to the other two areas at issue in the water district's service area, the district court properly denied the water district injunctive relief. For one area the relief would be premature, and for the other, the water district failed to show that it could service the area. Additionally, the court holds that the water district may seek relief under 42 U.S.C. §1983, and may be entitled to reasonable attorney fees if it prevails.

The full text of this decision is available from ELR (29 pp., ELR Order No. L-354).

Counsel for Plaintiff
Victor S. Nelson
Law Offices of Victor S. Nelson
3700 E. Douglas Ave., Wichita KS 67208
(316) 651-5300

Counsel for Defendant
Allen G. Glendenning
Watkins, Calcara, Rondeau, Friedeman, Bleeker, Glendenning & McVay
1321 Main St., Great Bend KS 67530
(620) 792-8231

[OPINION OMITTED BY PUBLISHED IN ORIGINAL SOURCE]