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Groups appeal dismissal of waterworks lawsuit

The environmentalists argue in their filing to the appeals court that their case against the Birmingham Water Works Board should be reinstated.

(STOCK PHOTO)

Environmentalists are asking a the Alabama Supreme Court to reinstate their lawsuit after Jefferson County Circuit Court Judge Javan Patton dismissed their suit against the Birmingham Water Works Board.

The Water Works Board argued in their filing that “none of Defendant’s arguments have merit” and that the plaintiffs do not have legal standing to bring the lawsuit.

The plaintiffs — Cahaba Riverkeeper Inc., the Cahaba River Society, David Butler and Bradford McLane — argue in their motion to reinstate the case that they have “sufficient facts to state a claim” and that the Water Works Board, the defendant, “seeks to distract, confuse, and recast Plaintiffs’ case, the Court only has to read and apply the plain language of the Settlement Agreement to rule in Plaintiffs’ favor.”

“Under the ordinary and common-sense language of the Settlement Agreement, the Plaintiffs have ‘full power and authority to enforce the provisions of the Agreement’ and have alleged facts sufficient to state a claim that the Board has breached the Settlement Agreement,” the plaintiffs argue in their appeal of the case’s dismissal.

The plaintiffs claim that “when the Attorney General intervened in Bernard Kincaid, et al. v. The Council of the City of Birmingham, et al, CV-0004669), it expressed concerns about the Board regaining possession of the Systems and independently controlling the water resources because ‘the Water Works Board has a monopoly in the provisioning of water within its service area.’”

“In 2001, in order to resolve those claims, the Attorney General and the Board entered into the Settlement Agreement. In exchange for some key agreements by the Board, the Attorney General agreed to drop its claims against both the Mayor and the City Council. One of these key agreements was for the Board to create a conservation easement on some crucial parcels of land in order to ‘ensure that the assets of the System are permanently protected from any and all land development activities which could be harmful to the System.’”

The plaintiffs claim that “one of the ways the Attorney General provided a check on this monopoly was to name ratepayers ‘third party beneficiaries’ and to give them ‘full power and authority to enforce the provisions of the Agreement.’”

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They also argue that “when an Alabama Court considers a motion to dismiss” then “the allegations of the complaint must be viewed in the light most favorable to the plaintiff.”

Current Alabama Attorney General Steve Marshall intervened in the case joining the Water Works position that the environmental groups do not have the standing to bring the lawsuit. The AG’s office maintains that they are the “third party beneficiaries” in the settlement and that the Cahaba River Society and the Riverkeepers do not have the standing to bring this litigation.

The plaintiffs, on the other hand, argue that that is a misreading of the agreement and that they, like any water ratepayers, have standing to bring litigation on the managing of the Birmingham Water Works since they are directly affected.

The groups argue that the previous settlement agreement negotiated by then-Attorney General Bill Pryor gives them legal standing as “third party beneficiaries” so they should have the standing to bring their suit.

The plaintiffs also maintain that the settlement requires the Birmingham Water Works Board to put the land that it owns in the watershed around Lake Purdy in a conservation easement and protected from development. The legal filing to place the property in a conservation easement was never done.

Written By

Brandon Moseley is a former reporter at the Alabama Political Reporter.

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