Aztec Seeks Change Of Judge, APS Seeks Less Land In Eminent Domain Case: Holbrook AZ AzJournal, 2/16/07

By Tammy Gray-Searles

While Aztec Land and Cattle Company is asking for a change of judge, Arizona Public Service Co. (APS) is seeking to change its initial petition to change the amount of land it is seeking in the eminent domain case filed against Aztec.

APS filed the lawsuit after the parties could not agree on a lease price for the land on which water wells for the Cholla Power Plant are located. APS has leased the property from Aztec since 1974, but the 35-year lease agreement expires in August 2007.

On Jan. 17, Aztec wrote a letter to Navajo County Superior Court Judge Tom Wing asking him to voluntarily remove himself from the case.

Among other things, the letter stated, “In essence, APS has argued to you on several occasions that if you do not rule in their favor APS will turn the lights out in Navajo County after Aug. 31, 2007. This means that APS has threatened to turn the lights out at your home, your grocery store and even the courthouse.”

It went on to say, “Unfortunately, because of APS’s threats, any judge who lives in Navajo County cannot give a fair and impartial trial to Aztec on account of bias, prejudice or interest of the judge.”

On Jan. 23, Wing placed a formal document in the case noting that he declined to remove himself from the case.

On Jan. 29, APS sent a letter to Judge Wing arguing that Aztec’s letter mischaracterized APS’s statements regarding a shut-down at the Cholla Power Plant, and that there is no reason for a change of judge. APS also argued that Aztec’s actions were intended to delay the trial until after the current lease agreement between the two parties expires on Aug. 31.

The APS letter states, “Aztec’s allegation is untrue and intentionally misleading because as Aztec knows, APS has never threatened to affirmatively ‘turn out the lights.’ To the contrary, APS has consistently pursued prompt resolution of this case so that power to its customers is not interrupted, while fairly advising the court that Aztec’s efforts to delay this case could potentially affect the Cholla Power Plant’s operations and therefore ‘the lights’ in Navajo County.”

On Feb. 1, Aztec filed a formal motion for change of judge and asked for a hearing. Presiding Judge Dale Nielson agreed to hear arguments on the matter, and set a hearing for 1:30 p.m. on Thursday, March 22.

In the meantime, on Feb. 14, APS filed a request to amend its original complaint. The amendment seeks to reduce the amount of land that APS wishes to condemn in the action. In the amendment, APS asks for seven acres surrounding the wells, and 80 acres for water and power line easements.

APS Media Relations representative Steven Gotfried explained that after additional research, APS determined that it could have use of the water wells, and still allow Aztec access to the water supply, by reducing the number of acres sought from approximately 7,000 to around 87.

“This solution, if approved by the court, is fair to both parties; a compromise that gives Aztec what it maintains it wants while allowing us to continue operating the Cholla Power Plant in the same manner we have done effectively for the past 34 years,” Gotfried remarked.

Aztec officials have not yet had an opportunity to reply to the motion to amend the complaint.

A jury trial in the case is still scheduled for July 10. A motion to dismiss the case, filed by Aztec, has not yet been considered by the judge.

Holbrook AZ AzJournal: http://www.azjournal.com