Missoula’s drinking water: The cast of characters for city’s condemnation trial (March 15, 2015)
A lawyer who fought to get Osama bin Laden’s driver out of Guantanamo Bay prison is among the cast of characters who will appear this week in Missoula County District Court.
Attorneys, witnesses, law students and members of the public will descend Wednesday upon Judge Karen Townsend’s courtroom to hear the city of Missoula argue its eminent domain case against Mountain Water Co. and The Carlyle Group.
Here’s a look at some of the main players who will appear in court during the trial, scheduled to last through April 2.
CITY OF MISSOULA
When he first ran to head the city of Missoula, John Engen’s campaign mantra was that he wanted to be the mayor of his hometown. Engen, a native of Missoula, is now in his third term as mayor. In 2011, when The Carlyle Group bought Mountain Water Co., Engen announced he wanted to put the water company under public ownership. He later assembled a high-powered team to lead the city through the acquisition. In 2014, when it was clear a sale would not take place amicably, the city of Missoula took Carlyle and the water company to court. The condemnation case is Engen’s most aggressive initiative to date. The hometown mayor’s legacy is tied to the outcome, either a colossal win or devastating loss for the city of Missoula.
Harry Schneider is one of the lawyers who represents the city of Missoula in the eminent domain case. He works at Perkins Coie, a firm based in Seattle, and he has a roster of corporate clients including Boeing Co. and Nintendo. His work took a different turn when he was asked to help defend the man who had worked as a driver and bodyguard for Osama bin Laden. In Hamdan v. Rumsfeld, et al, Schneider worked pro bono to obtain a ruling from the U.S. Supreme Court
striking down military commissions to try detainees held at Guantanamo Bay, Cuba, according to his bio. Salim Hamdan was released from Guantanamo in 2008, according to a court document. The Yemeni man continued to fight his war crimes conviction, and in 2012, an appeals court vacated the order with support from Schneider.
A man who shared in the 2007 Nobel Peace Prize for his work on climate change is on the witness list for the city of Missoula. Steve Running, a leading climate scientist and ecology professor at the University of Montana, has predicted drought in the northern Rocky Mountains. In a study released in 2010, Running noted the region would see shortened winters and two additional months of summer drought.
The real impacts on Montana are really all about the water, Running said at the time.
THE CARLYLE GROUP
Robert Dove is the managing director of infrastructure at The Carlyle Group. He appears to excel at sealing the deal. To stave off a possible protest against a sale of Mountain Water to Carlyle, he convinced the Missoula mayor to back the transfer. In exchange, he signed a letter saying Carlyle would consider
in good faith any offer the city of Missoula made for Mountain. Since then, Carlyle rejected at least two offers from the city, and the city took Carlyle to court, alleging a
bait and switch. Dove appears to be the heavyweight who subsequently convinced a Canadian corporation to buy Carlyle’s Western Water Holdings, which includes Mountain Water, despite the condemnation quagmire already entangling the local utility. The Missoula case isn’t the only one that links Dove to an embattled water system. In 1996, Dove joined Bechtel Enterprises, and he served on the board of directors of a Bechtel venture called International Water from 2000 to 2006. In 2000, the company’s dealings in Bolivia led to an uprising known as the Cochabamba Water Wars and at least three deaths, according to the Democracy Center, which chronicled the wars. One year earlier, Bolivia had granted a privatization lease to a Bechtel offshoot,
giving it control over the water on which more than half a million people survive, the Center said.
Immediately the company raised rates by an average of 50 percent. After the riots, Bolivia cancelled the contract with the Bechtel company, and Bechtel and another investor sued the government for lost earnings. The case was settled in 2006, and Dove represented International Water in the signed agreement, according to Bolivian newspaper Los Tiempos.
Former U.S. Attorney for Montana Bill Mercer is one of the lawyers representing Carlyle. In 2006, Mercer earned the harsh critique of U.S. District Judge Donald Molloy for being overly zealous with federal charges in state matters:
Do you ever concern yourself with justice? Molloy asked. One year later, Montana’s embattled U.S. attorney was asked to resign by U.S. Sen. Jon Tester, D-Montana, after a report accused Mercer of changing federal law so he could live outside his district and hold a separate post in Washington, D.C. A Republican appointed by President Bush, Mercer filled out his term through 2009. He served in the U.S. Attorney’s Office for 15 years, including more than eight in the top spot. He’s a lawyer with Holland & Hart in Billings.
MOUNTAIN WATER CO.
Joe Conner of Baker Donelson is a lawyer representing Mountain Water Co. According to his bio,
his eminent domain practice is national in scope. Conner, of Tennessee, brings the only Southern accent the courtroom likely will hear during trial. He presents a track record of getting his clients a lot more money than they originally demand. In his online bio, he ticks off his representation of Illinois American Water as among his accomplishments:
The city (of Peoria, Illinois) placed the value (of the company) at $95 million. The issue of fair market value was arbitrated before a panel of three appraisers in January 2005. Result: Company valued at $220 million; city then ended its efforts to buy the IAW assets in Peoria District.
At the helm of Mountain Water Co., John Kappes is another native son involved in the dispute. He’s a graduate of the University of Montana who joined the water company in 1990, just a few years after the utility won an earlier eminent domain proceeding the city of Missoula filed in the 1980s. Kappes, now president of the company, came up through the ranks at the utility. He worked as a coordinator of rates, was promoted to assistant general manager in 2001, and became president in 2012. He’s a shareholder who stands to gain in a transfer of the company.
MISSOULA COUNTY DISTRICT COURT
Judge Karen Townsend
Judge Karen Townsend has presided over the eminent domain case since it was filed in April 2014, and she already has ruled on numerous motions. The most recent high-profile case to come before her was the rape trial of former University of Montana Grizzlies quarterback Jordan Johnson, who was acquitted in 2013. The judge, who took office in 2011, is personable with the lawyers who appear before her and persistent in questioning their arguments. Townsend was the first female prosecutor to handle criminal cases for Missoula County and first woman to serve as a judge in Missoula County District Court. Gender arose in the current case when one of the lawyers acknowledged some of the differences in play now compared to the city’s eminent domain case in the 1980s. The lawyer noted the judge was different, and the judge agreed.
Even a girl, she said. When she took office, she said people expected her to be unbiased and come prepared, and she, in turn, had expectations of lawyers.
I expect I will be getting excellence from lawyers who appear in front of me, Townsend said at the time.
Source: Keila Szpaller, Missoulian