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HomeMy WebLinkAboutCebridge Communications v. Nevada LAFCO ATTORNEY -CLIENT PRIVILEGED AND CONFIDENTIAL MEMORANDUM DATE: Friday, November 11, 2005 TO: Truckee Donner Public Utility District— Board of Directors FROM: Steven C. Gross, General Counsel RE: Summary of the Trial Cebridge Communications v. Nevada County LAFCo The trial in the matter of Cebridge Communications vs. Nevada County LAFCo was conducted on Monday, November 7, 2005 in Nevada County Superior Court, Nevada City. In this matter, Cebridge challenged the validity of LAFCo's approval of the District's application to provide broadband services. The case was tried before Judge Dover, Presiding Judge of the Superior Court. At the trial, Nevada County LAFCo was represented by its General Counsel, Scott Browne. The District was represented by Special Counsel, Nancy Miller and me. Eagle Broadband was represented by Daniel McCloskey. Cebridge Communications was represented by Richard Patch, Greg Ficks and Craig Diamond. Also in attendance were Peter Holzmeister, Alan Harry and Paul Norsell, Chairman, Nevada County LAFCo. Because this case involved a challenge to LAFCO's decision, the legal standard of review is stated as—Was there substantial evidence in the record to support LAFCO's decision to approve the District's application? The other primary issue in the case, that the court may consider de novo, is whether the District has the legal authority to provide cable television and broadband services. In determining whether there was substantial evidence to support LAFCo's decision, the Court reviews and considers the record of LAFCo's proceedings concerning the District's application over the course of the past five years and makes its determination based upon that record. Therefore, at the trial no new evidence was presented, i.e., no new documents and no witnesses. This is a matter that was heard by the court.There was no jury. Up until the time of the trial, this case had been heard by Judge Ursel Edwards. Judge Edwards retired earlier this year. Therefore, we did not know until about a week prior to the trial which judge would hear the case and whether or not he would be familiar with the case. On Friday I afternoon, November 4, 20005, Judge Dover faxed each of the parties a"Tenative Decision". In this Tentative Decision, he stated that the court was not issuing a Tentative Decision i.e. a preliminary ruling pending oral argument and further consideration; rather, he indicated that no tentative decision would be issued. The Tentative Decision listed numerous questions that the court told the attorneys to focus on during the trial. The questions focused on three broad areas. The first area was a procedural matter and had to do with whether or not Cebridge could properly bring its case under the California validation statute. The second broad area had to do with whether the District has legal authority to provide a cable television and broadband services. The third broad area had to do with whether there was substantial evidence in the record to support LAFCO's decision to approve the District's application. The court conducted the trial, which really consisted of hearing oral argument from counsel, for approximately two hours. During that time, counsel for each of the parties was provided the opportunity to answer the questions posed by the court in the Tentative Decision. During the oral arguments, the Judge was relatively quiet, asking perhaps only a half a dozen or so questions. He really simply let counsel answer the questions that he had asked. Neither during the oral argument nor at the conclusion of the hearing did the Judge give any indication as to how he will rule on the case. At the conclusion of the oral argument, he took the matter under submission and did not issue any decision. There will be no further briefing of the matter for the court. The court has 90 days from the date of the trial in which to issue a written decision. Overall, counsel for LAFCO and District felt very good about the case as a whole, the questions asked by the court and the oral argument presented. I certainly hope that this is not a case of us being overly confident however, we are certainly encouraged that we will obtain a favorable result for the District. As soon as we have some indication or a decision from the court, I will let you know. Please do not hesitate to contact me if you have questions about the trial and the matter. 2 .amwrn-w.ro.asxv��.'v'Y�'asu+5%^ywe;.xwawtikw..vn ra.�ucxa�u,a,x+r.ew. .,rq ,.:..rn.+`re.u�Y wets.,n•.oP ' SMUD wonJpt sun ge Ut' 'ty signed natural-gas contracts before costs soared Dec, i. By Robert D.DAvila Notate Tr increaSMUses are planned next year, resi aer srv[+vwitrrF[t h°°Btu more tha this yearsed budget. The cost ibu about$5 would he 20 d be loor mil- king at rates [hat by 6 percent in Aprl to help cover higher Sharply rising natural gas prices this less than market prices,the rep°rt said. Financial Officer Jim highrac said. _ winter won't mean higher bills next year g Percent higher,"SMUD Chief natural gas costs. Tihe average monthly eusin for Sacramento Municipal Unlit District ed�°g�aznst cost spikes by signing SMUD ispr°posinga$1 269 hIltionbud- watt hoursnis $73 Ol be spokesman cuatomera, y deals in 2004 and early this year for lower get for 2006,an increase of less than 1 per- Chris Capra said. thanks largely ko contracts prices through 2007 will save about cent over[his year. Directors will review ri Comparison,apr Pacific Gas and Electric that loch n prices below market rates. SMUD will spend an average of $5.70 ��million according [o SMUD's pro. We plan in meetings beginning at Co. charges $105.77 for 750 kilowatt. Per million British thermal units of ,to prised budget for next year. 1:30 p,m. today, Wednesday and Thurs• hours,spokeswoman Jennifer Ramp said. ga "If we didn't have those contracts arsd da generate el�tricity in 2006,according eo a were out trying to Y at district headquarters, 62Q1 S St., She noted PG&E uses a standard of b2S procure gas month zt to A beard vote is expected ►SMUD,Page B3 St6r, � _ ,7511 would d. e. up costs D FROMours p r AGgwzv t1.` ,,addition,SMUD is expanding I kilowatt-hours per z t u t r , tgs 3o a ro Vic$ d rolect near R1° tou134rter COsons,based°n its eke N, &00 3 a a. +urine wwdintills produce comer consumption,wti c Ord ab"I 15 F1iegaw.atts, Tracy said. cost$75. 4"Tionai25 megawatts willbe j Fuel costs are a key cowt.nux w ut }next year, leading to all SMUD's budget. Natural 6"i� 4W eventual goal of 200 megawatts,he biggest energy source, gerteaatng said, 41 Percent af the district's power. While keeping a lid on natural Two new generation pr°je is will bet SMUD gas prices this winter,SMUD faces p control fuel costs an unknown risk to hydroelectric 1 next year, officials said, The sources, Generators operated ' projects also will reduce depen- through water releases from darn denceontilewholesalepowermar- produce 35percent of SMUDs 's ket, where SMUD buys about half power according to the district's the electricity it supplies to custom. Web site. era. The most Siitem we're Testing is under way on the concerned aboutisicant how touch rain 500-megawatt Cosutmzes Power we get this winter,"Tracy said. off Plant,which will require less natu- wed ottYget enough,then what w e i ral gas and produce pQwer mare ef- were expecting from hyd has a ttxsenti tlxan eur rat t s wbe replaced with pur�'�ises an 2`1ar� � *� x ~< its N 6a e l�aa. ;w.;i�5;iss�: arcs rcu.<t e.'iLxe; uLUE.nib,vy$3ta:.exs� 4nAt"4�x'n s"d'�ir;�.uwrat 4rY,?n�d �i>;l.f 7e_�i .