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Case 3:12-cv-08123-HRH Document 1023 Filed 01/09/17 Page 1 of 26

Jeffrey C. Matura, State Bar No. 019893


Melissa J. England, State Bar No. 022783
Graif Barrett & Matura, P.C.
1850 North Central Avenue, Suite 500
Phoenix, Arizona 85004
Telephone: (602) 792-5700
Facsimile: (602) 792-5710
jmatura@gbmlawpc.com
mengland@gbmlawpc.com

Attorneys for Defendant Town of Colorado City

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UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

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United States of America,

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Plaintiff,

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v.

Defendants.

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Pursuant to this Courts Order [Doc. 983], defendants Town of Colorado City,
Arizona, and the City of Hildale, Utah (collectively the Defendants) submit the
following closing argument regarding injunctive relief.1
I.

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DEFENDANTS JOINT CLOSING


ARGUMENT REGARDING
INJUNCTIVE RELIEF

Town of Colorado City, Arizona; City of


Hildale, Utah; and Twin City Water Authority,
Inc.,

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Case No. CV-12-8123-PCT-HRH

INTRODUCTION.
The evidence the United States presented during the October 2016 evidentiary

hearing confirmed that the United States seeks injunctive relief that is disconnected from
the facts, the law, and the jurys verdict. The United States offered ideas such as
disbandment or subdivision approval or new impact fees but did not offer any
actual plan. The United States witnesses also completed little, if any, analysis, were

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This closing brief supplements the Defendants Joint Response to the United States
Post-Trial Brief Regarding Injunctive Relief [Doc. 940]. The Defendants incorporate the
arguments raised in that Post-Trial Brief into this closing brief.

Case 3:12-cv-08123-HRH Document 1023 Filed 01/09/17 Page 2 of 26

largely ignorant about the facts, and generally testified in whatever way they believed

would most benefit the United States. The Defendants, in contrast, presented this Court

with a specific plan and detailed, unbiased steps this Court can order with respect to

injunctive relief, including how to restructure and improve the Colorado City Marshals

Office (CCMO), how to handle the subdivision dispute that the United Effort Plan Trust

(UEP Trust) has created, and how to ensure that housing and utility decisions are made

in a non-discriminatory manner.

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The United States also continues to ignore the legal standard this Court must
apply.2

The Supreme Court has held that injunctive relief should be no more

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burdensome to the defendants than necessary to provide complete relief to the plaintiffs.

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Califano v. Yamasaki, 442 U.S. 682, 702 (1979). Any injunctive relief must also be

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tailored to remedy the specific harm alleged. Lamb-Weston, Inc. v. McCain Foods,

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Ltd., 941 F.2d 970, 974 (9th Cir. 1991). An injunction that is overly broad, unduly

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burdensome, or not narrowly tailored is an abuse of the Courts authority and subject to

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reversal on appeal. See United States v. BNS, Inc., 858 F.2d 456, 460 (9th Cir. 1988).

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It is within this backdrop that the Defendants offer the following proposals

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regarding the appropriate injunctive relief this Court should enter under 42 U.S.C.

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14141 and the federal Fair Housing Act. These proposals are based upon the testimony

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and documents presented to this Court during the evidentiary hearing.3

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II.

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RESTRUCTURING THE CCMO, HIRING ADDITIONAL OFFICERS,


AND REQUIRING OTHER REMEDIAL STEPS ARE APPROPRIATE
INJUNCTIVE MEASURES.

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In its advisory verdict under 42 U.S.C. 14141, the jury concluded that the

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Defendants, through the CCMO, violated the Establishment Clause of the First

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The United States Closing Brief [Doc. 1022] contained 26 pages of text, which violates
this Courts order that the closing briefs shall not exceed 25 pages, total. See Order
[Doc. 983], at p. 2.
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The United States Closing Brief [Doc. 1022] includes facts and arguments not
presented during the evidentiary hearing, which again violates this Courts order that the
closing briefs should focus primarily upon evidentiary hearing testimony. See Order
[Doc. 983], at p. 2.
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Case 3:12-cv-08123-HRH Document 1023 Filed 01/09/17 Page 3 of 26

Amendment, the Equal Protection Clause of the Fourteenth Amendment, and engaged in

an unreasonable seizure of property, an unreasonable seizure of a person, and an arrest

without probable cause in violation of the Fourth Amendment.4 Importantly, the jury also

concluded that the CCMO did not engage in unreasonable searches of property,

unreasonable investigatory stops, or use excessive force under the Fourth Amendment.5

The United States therefore did not succeed on all of its claims, and this Court cannot

ignore the jurys findings in favor of the CCMO when considering the appropriate

injunctive relief.6

A.

Dan Corsentino Provided A Detailed Plan For This Court To Adopt.

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Dan Corsentino is uniquely qualified to opine on the appropriate injunctive relief

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for the CCMO. He is the former Pueblo County Sheriff, a position he held for 17 years.

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Mr. Corsentino inherited a Sheriffs Office in which no community confidence existed

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and that had a history of problems. Mr. Corsentino improved the Sheriffs Office and

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achieved a triple-crown accreditation by satisfying national standards for the

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Commission on Accreditation for Law Enforcement Agencies, the American Correctional

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Association, and the National Commission on Accreditation for Health Care.

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Corsentino also worked as the Chief of Police for Fountain, Colorado, a small community,

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and served on the Colorado POST Board, during which he reviewed officer discipline and

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certification issues.7

Mr.

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Mr. Corsentino completed substantial analysis on the CCMO that the United

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States police expert, Chief Harris, did not. For example, Mr. Corsentino made two trips

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to Colorado City and Hildale to evaluate the CCMOs systems, including the hiring,

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firing, internal affairs, policies and procedures, and communications center. He also

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See Verdict Forms [Doc. 932].


Id,
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Because the United States did not request that the jury complete special interrogatories,
no specific police incidents are necessarily connected to any particular constitutional
violation. It is therefore speculative for the United States to try and connect the two.
7
See Dan Corsentinos Hearing Transcript, at pp. 525 529. Mr. Corsentinos full
resume was admitted as Exhibit 3406.
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interviewed the officers and reviewed their training, report-writing skills, vehicles, and

weapons. He then completed a ride-along with Deputy Hyrum Roundy and met with the

local municipal judge to obtain her insights into the conduct of the officers and the

standing of the CCMO within the community.8

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Based upon Mr. Corsentinos background, experience, and analysis, he offered the
following steps to improve the CCMO:

1.

Restructure the Hiring Committee for New Officers. The Town Manager

and a representative from the Town Council should not sit on the hiring committee for

new officers. Rather, the Chief of Police and other law enforcement professionals should

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sit on the committee and then recommend candidates for hiring to the Town Council.9

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2.

Hire Two Additional Officers and One Administrative Assistant.

This

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additional staff will help free-up the Chief of Police so that he can focus on administrative

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and management responsibilities. It will also allow the Chief to improve his visibility

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within the community, including building relationships with community groups, attending

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school meetings, and taking other proactive and community-based steps.10

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3.

Reorganize the CCMO. This reorganization would include removing the

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Town Manager and the Town Council from the internal affairs process and evaluating

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whether to hire a detective to assist the officers with their investigations.11

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4.

Rewrite the CCMOs Policies and Procedures. Rewriting the CCMOs

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policies and procedures will help address specific issues that the jury identified, including

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search and seizure of property, seizure of a person, and probable cause, as well as issues

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raised in this case under the First, Fourth, and Fourteenth Amendments.12 The new

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Id. at pp. 532 536.


Id. at pp. 622 623.
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Id. at pp. 544 547. The CCMO has already hires a new administrative assistant.
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Id. at pp. 548 549.
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Id. at pp. 549 550. Also, the CCMO is already working with Lexipol and has received
a revised version of the CCMOs policies and procedures (known as the General
Orders).
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policies and procedures will meet nationally-accepted standards for constitutional policing

and include requirements for continuous training and updates.

5.

Create and Implement a Pilot Program for Body Cameras. Implementing

and using body cameras will help remove doubt about what occurred during any particular

police incident, including property disputes involving the UEP Trust.13

6.

Additional Officer Training. The officers should obtain additional training

on the First, Fourth, and Fourteenth Amendments, the state and federal Fair Housing Acts,

landlord and tenant law, diversity, and other related topics.14

7.

Enhance Collaboration with Regional Law Enforcement.

The Chief of

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Police should meet with Washington County Sheriff Cory Pulsipher and Mohave County

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Sheriff Doug Schuster to develop a better working relationship and to seek their input on

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law enforcement issues facing the CCMO.

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community or regional boards so that he can interact with other law enforcement

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personnel.15

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8.

The Chief of Police should also join

Hire Mentor for the Chief of Police. The CCMO should hire an individual

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to mentor the Chief of Police in the performance of his job and to help him improve the

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CCMO. This individual should provide mentorship for at least one year and should come

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from a nationally-recognized police organization, such as the Police Executive Research

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Forum or the International Association of Chiefs of Police.16

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Mr. Corsentino outlined these and other steps in a strategic plan that was submitted

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to this Court.17 He also analyzed the Defendants finances and concluded that, although

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Id. at pp. 550 551.


Id. at pp. 551 553. Also, the officers have already received additional training since
the jurys verdict. See Training Records, admitted as Exhibits 3430, 3431, 3432.
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Id. at pp. 553 554.
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Id. at pp. 555 557.
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See Strategic Plan, admitted as Exhibit 526. Mr. Corsentino is also working on a more
detailed strategic plan for the CCMO to follow and which will provide further guidelines
on how to improve the CCMO and address the jurys conclusions.
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implementing these steps will involve increased costs, they are not cost prohibitive.18

These steps are appropriate under the law to remedy the jurys conclusions. This Court

should therefore adopt them as its form of injunctive relief with respect to the CCMO.19

B.

Disbandment Is Inconsistent With How The United States Has Treated


Other Police Departments, Would Provide Less Police Coverage, Is Too
Costly, And Would Usurp Utah POST And Arizona POSTs Authority.

The United States request to disband the CCMO is contrary to the long-standing

judicial principle to not use a sledgehammer where a more delicate instrument will

suffice. Dean v. Coughlin, 804 F.2d 207, 213 (2nd Cir. 1986). Disbandment is also

inconsistent with how the United States has treated other police departments alleged to

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have committed the same or far worse conduct as the CCMO, would provide less

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coverage to the residents of Colorado City and Hildale, is too costly, and would take away

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the authority of Utah POST and Arizona POST. Each issue is discussed below.

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Disbandment Would Treat The CCMO Differently Than Other


Police Departments.

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A comparison chart showing the United States investigations into other police

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departments under 42 U.S.C. 14141 was provided to this Court during the evidentiary

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hearing.20 This chart includes information about the United States investigations into six

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separate police departments under the First, Fourth, and Fourteen Amendments that

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involved allegations of conduct far worse than anything alleged against the CCMO,

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including officers using Tasers and canines on African Americans, using deadly force

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against individuals with mental illnesses, failing to properly investigate sexual assault

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claims, and other extreme misconduct.21 The remedies the United States sought and

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1.

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See Dan Corsentinos Hearing Testimony, at pp. 557 558.


See the Defendants Proposed Order, attached as Exhibit 1. The Defendants also
submit their objections to the United States Proposed Order, attached as Exhibit 2, and
their response to the United States Digest of Proposed Findings of Fact, attached as
Exhibit 3.
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See Comparison Chart, admitted as Exhibit 3521.
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Id.; see also Department of Justices reports and press releases, admitted as Exhibits
3380, 3382, 3383, 3384, 3385, and 3512.
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obtained included new policies and procedures, improved community outreach, improved

training, improved internal affairs processes, and for some departments a monitor.22

In not one of these investigations did the United States seek or obtain disbandment.

Consistency in results is an important judicial principle. Mr. Corsentino reviewed

the comparison chart, compared it to the United States request to disband, and described

the importance of consistency as follows:

Well, it seems to me that the application of the law should be


consistent, even though each case is different and theres different
actions that were taken in cases, but when there is violations that are
found in the similarities of the First, Fourth, and Fourteenth
Amendments, in these cases in a couple of these cases human life
was taken, quite egregious, quite excessive force, but a monitor was
assigned to those departments or there was improved policy
procedure, improved internal affairs. I was looking for the
consistency of the application and I thought that the consistency was
critical as a predictable outcome for the Colorado Citys Marshals
Office.23

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This Court should maintain consistency within the law and reject the United States

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request to disband the CCMO.24

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2.

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Disbandment Would Result In Less Police Coverage.

The United States idea is to force the Defendants to contract with Mohave County

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and Washington County for police coverage.

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services for the residents.

This idea would result in less police

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The Mohave County Sheriff did not testify during the evidentiary hearing, and so

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this Court does not know his thoughts, ability, or willingness to assume police coverage.

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Instead, the United States presented James Schoppmann, who discussed a proposed

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contract for the Mohave County Sheriffs Office to provide police coverage in Colorado

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Id.
See Dan Corsentinos Hearing Transcript, at p. 571.
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The United States effort to treat the CCMO officers differently based upon their
perceived religious beliefs also became clear when Chief Harris the United States
expert testified that he would only advise letting the CCMO officers reapply for their
positions if they were not a member of FLDS. See Chief Harris Hearing Testimony, at
pp. 357 358.
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City.25 A simple review of this contract shows a significant reduction in the available

services. For example, Mohave County Sheriff Deputies are only certified in Arizona,

and so the contract covers police services in Colorado City, not Hildale, meaning that

Mohave County Deputies would have to stop at the Arizona border.26 In contrast, the

CCMO officers are dual certified in Arizona and Utah. Mohave County would also have

only one deputy to patrol Colorado City from 6:00 am to 2:00 am each day, unless the

deputy was on another call within the county, in which case no Mohave County deputy

would be on patrol in Colorado City.27 Even if another call does not occur, however, no

Mohave County deputy would patrol Colorado City from 2:00 am to 6:00 am, a critical

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time when many incidents occur. Currently, the CCMO provides 24-hour police presence

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and has six deputies available to respond to a call. Finally, the contract states that the

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Mohave County substation would only be open during regular county business days and

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hours,28 whereas the CCMO is available and on-duty 24-hours a day.

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Cory Pulsipher is the Washington County Sheriff. He also testified about the

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reduction in police services that would occur if the Washington County Sheriffs Office

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were to assume policing in Hildale. First, Sheriff Pulsipher admitted that the Washington

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County Sheriffs Office does not have the resources or manpower necessary to provide

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24-hour police presence in Hildale.29 In fact, he currently has only four deputies on duty

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to cover the entire 2,500 square miles within the county, which Sheriff Pulsipher

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described as already thin coverage due to the vast area of the county.30 Second, the

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Washington County Sheriff Deputies are not dual certified, which means they would also

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stop at the Utah border, except in an emergency situation, in which case they would travel

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into Arizona to hold the scene (not process it) until a Mohave County Sheriff Deputy

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See Proposed Intergovernmental Agreement, admitted as Exhibit 515.


See James Schoppmann Hearing Transcript, at p. 227.
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See Proposed Intergovernmental Agreement, admitted as Exhibit 515, at 2(a)(i).
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Id. at 2(a)(iv).
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See Sheriff Pulsiphers Hearing Transcript, at p. 268.
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Id. at p. 272.
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arrived.31 This idea is contrary to the position that Arizona POST has taken, which is that

an officer from another state cannot respond to a call in Arizona without first obtaining an

Arizona certification. Arizona POST has also stated that this conduct violates A.R.S.

13-2411, which prohibits impersonating a peace officer. Finally, Washington County also

does not have a substation in Hildale.32

The undisputed evidence as confirmed by the United States own witnesses

shows that disbandment will result in less police services for the residents. This Court

should avoid such a dangerous result.33

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Obtain

Equivalent

injunctive relief that the United States proposes. See United States v. Puerto Rico, 922
F.Supp.2d 185 (D. Puerto Rico 2013) (rejecting proposed settlement agreement under 42
U.S.C. 14141 because it was likely Puerto Rico could not afford the proposed changes).
The evidence shows that they cannot.
Daniel Rondeau is a forensic accountant.34

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To

Another factor this Court must consider is whether the Defendants can afford the

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The Defendants Cannot Afford


Replacement Police Services.

He reviewed Colorado City and

Hildales financial statements and audits, as well as the CCMOs expenditures and
budgets, to determine their current economic status.35 His opinion is that the Defendants
are in a state of plateau financially because they have not grown in the last several years
and do not expect any major future growth.36 He also concluded that the cost for the

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Id. at pp. 273 274.


Id. at p. 269.
33
See Daniel Corsentinos Hearing Transcript, at pp. 537 544, in which he described
why disbandment is inappropriate and why the County Sheriffs are ill-suited to handle the
police services in Colorado City and Hildale.
34
See Daniel Rondeaus Hearing Transcript, at p. 1016; see also Daniel Rondeaus
resume, admitted as Exhibit 3408.
35
See Daniel Rondeaus Hearing Transcript, at pp. 1020 1023; see also Financial
Statements admitted as Exhibits 3287 through 3309, 3336 through 3342, and 3409.
36
See Daniel Rondeaus Hearing Transcript, at p. 1023; see also Historical Financial
Results Spreadsheets, admitted as Exhibits 3513 through 3520.
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Defendants to obtain equivalent police services from the counties exceeds the Defendants

budgets.37 Mr. Rondeau explained these economic realities as follows:

Yeah, I do not see how the communities could possibly afford the
proposals that have been put forth. Although Ive heard the
testimony that its sort of a menu that somehow somebody could
select some lesser amount. Any lesser amount would be less
coverage than having somebody in these cities because of these state
line issues.38

The Defendants cannot afford to pay for equivalent replacement police services, with both

Colorado City and Hildale having to contract for outside services at a cost much higher

than the current cost for the CCMO. This Court should therefore reject the United States

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idea.39

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Disbandment Would Usurp Utah POSTs And Arizona POSTs


Authority.

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Each CCMO officer is dual certified in Arizona and Utah, and therefore subject to

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discipline from Arizona POST and Utah POST.

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This Court heard that Utah POST began investigating the CCMO officers in 2012

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for many of the same issues that the United States alleged in this case. Yet, in August

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2016, Utah POST cleared all the officers of any misconduct because there was not

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sufficient evidence to warrant any discipline.40 Mr. Corsentino explained the importance

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of Utah POSTs finding as follows:


Well, being a former POST Board member in Colorado, what takes
place is there is an investigation thats done by a POST-certified
investigator, and they reach a conclusion, usually its pretty
comprehensive, and they reach a conclusion, and that conclusion is
its either sustained and its actionable, meaning that theres going to
be a decertification of the officer, and should there be criminal

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See Daniel Rondeaus Hearing Transcript, at pp. 1027 1029.


Id. at p. 1028.
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The United States idea to disband the Colorado City Dispatch Center also ignores the
costs of obtaining new dispatch services and that the Dispatch Center currently provides
dispatch services to other communities and emergency service agencies.
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See Utah POST Letters, dated August 22, 2016, admitted as Exhibits 3426 and 3427.
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charges its then referred to either the local prosecutor and/or the
Attorney Generals Office.

When there is insufficient evidence or the case is closed out, the


confidence level that I have in this is that the Utah POST has
essentially cleared the officers in the Colorado City Marshals Office
of any violation that they were looking at and found insufficient
evidence to move this case along any further.

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Whats important about this is that there is a system in place, and


that system needs to run its course. There is a system in place in
Colorado, theres a system in place in Arizona, and theres a system
in place in Utah, and POST Boards are part of an accountability
system that will take action against law enforcement officers, they
will move to decertify them and they will take them from the law
enforcement profession if theres wrongdoing.41

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Utah POSTs conclusion with respect to each officer is uncontroverted. And although the
United States argues that the standard Utah POST applies is different than what the United
States wants it to apply, the Utah State Legislature has set that standard. It is not for the
United States to change it or to exert its political influence on how it is administered. It
would also be improper for this Court to take away Utah POSTs authority to investigate
and discipline (or, in this case, exonerate) certified police officers as it deems necessary.

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This Court is also aware that Arizona POST began investigating the CCMO
officers in coordination with, and conveniently just before, the trial in this case. But this
Court also heard that Detective Travis Meadows, who headed the investigation, reached
his conclusions against the officers early in his investigation and before he even
interviewed the officers.42 Not surprisingly due to that imbalance, Arizona POST decided
to file administrative complaints against the officers. These complaints, however, are just
the next step in the process, not the end. Each officer denied the allegations in their

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See Dan Corsentinos Hearing Transcript, at pp. 561 562.


See Detective Meadows Hearing Transcript, at pp. 162 163. One can only imagine
how the United States would have reacted if a CCMO officer reached a conclusion before
even completing an investigation. Certainly, the United States would have argued from
the mountaintop that such conduct was improper; yet, the United States is working handin-hand with Arizona POST and supporting its improper investigation.
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respective complaint and requested a hearing before the Arizona Office of Administrative

Hearings.43 These hearings will likely occur in April or May 2017, during which each

officer will have the opportunity they were not afforded during the POST investigation to

defend themselves. An Administrative Law Judge will then issue a recommendation back

to Arizona POST. The CCMO officers are confident that the Administrative Law Judge

and then Arizona POST will clear them of wrongdoing, just as with Utah POST, once

they hear all the evidence and do not prejudge them as did Detective Meadows.44

Arizona POST and Utah POST have systems to deal with police officer

misconduct. Utah POST already cleared the CCMO officers. If Arizona POST finds that

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one or more of them acted improperly, it will take appropriate action, which could include

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a wide-range of discipline. But for this Court to take officer discipline away from Arizona

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POST would usurp Arizona POSTs authority. This Court need not disband the CCMO,

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or even consider such an extreme option, because Arizona POST and Utah POST are

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already in place and working.45

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III.

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The United States seeks comprehensive injunctive relief against the Defendants

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ADDITIONAL INJUNCTIVE RELIEF UNDER THE FAIR HOUSING ACT


IS UNNECESSARY.

under the federal Fair Housing Act. This additional relief is unnecessary because identical
injunctive relief already exists. The Defendants have also taken proactive steps to ensure
compliance with the Fair Housing Act, and the UEP Trust is already litigating its
subdivision dispute in the Mohave County Superior Court.

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See Requests for Hearing, all attached as Exhibit 4.


See Dan Corsentinos Hearing Transcript, at pp. 562 563, in which he agreed that [i]t
would be inappropriate to prejudge these officers until that [Arizona POST] investigation
is concluded.
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The United States request to disband also ignores that the CCMO has hired a new
officer who was not involved in any of the allegations or issues raised in this case.
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A.

This Court is familiar with the Cooke case brought against the Defendants. Most

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of the issues the United States alleged in this case were the same as those alleged in the
Cooke case; in fact, Jinjer Cooke testified on the United States behalf during the liability
trial. After the Cooke case, Judge Teilborg issued an injunction against the Defendants
under the Fair Housing Act, which states the following:
During the ten-year period beginning from the date of this Judgment,
Defendants and their agents shall not (1) discriminate because of
religion against any person in the terms, conditions, or privileges of
the provision of services or facilities in connection with the sale or
rental of a dwelling; or (2) coerce, intimidate, threaten, interfere
with, or retaliate against any person in the enjoyment of his or her
dwelling because of religion or because that person has asserted
rights, or encouraged others to assert their rights, protected by the
federal Fair Housing Act or the Arizona Far Housing Act.46

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This language is patterned after the same provisions of the Fair Housing Act that the
United States pursued in this case, including 42 U.S.C. 3604(b) and 3617.47 Judge
Teilborg has therefore already enjoined the Defendants from engaging in the same
conduct that the United States asks this Court to include in its injunction. Judge Teilborg
also created an expedited process for individuals who believe the Defendants have
violated his injunction to have their concerns heard.48
If this Court were to issue another injunction under the Fair Housing Act,

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Judge Teilborg Has Already Issued An Injunction Against the


Defendants Under The Fair Housing Act.

confusion would result. For example, which Court would retain jurisdiction? If an
individual believed the Defendants violated one or both of the injunctions, would they
46

See Judge Teilborgs November 26, 2014 Amended Judgment and Permanent
Injunction, admitted as Exhibit 723. Judge Teilborgs issued his first injunction on
September 4, 2014, which was admitted as Exhibit 3372. The United States argues that
these injunctions have somehow expired, but their language shows otherwise. It is also
clear that Judge Teilborg issued the Amended Judgment and Permanent Injunction to
correct a legal error contained within the original injunction. See David Dargers Hearing
Transcript, at pp. 793 804.
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See Complaint [Doc. 1], at 57 61.
48
See Judge Teilborgs September 14, 2014 Order, at p. 7, lines 3 10, admitted as
Exhibit 3372.
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seek relief in this Court or Judge Teilborgs? And if an individual does not receive relief

in one Court, can it then go to the other Court and make the same arguments again under

the second injunction? These and other problems are all avoided if this Court simply

recognizes Judge Teilborgs injunction and declines to enter a duplicative injunction.

The Defendants have also taken affirmative steps to improve their conduct under,

and ensure compliance with, the Fair Housing Act. For example, all employees (including

the CCMO officers) received two sessions of Fair Housing Act training from the

Southwest Fair Housing Council.49

discrimination training and participated in the annual Fair Housing survey with the State

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of Arizona.50 The Defendants filmed this training to make it available to any employees

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who could not attend, to use as a refresher, and to show to new employees.51 The

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Defendants have also asked the Southwest Fair Housing Council to provide yearly or bi-

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yearly training.52

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Judge Teilborgs injunction, and the Defendants proactive steps to comply with it,
show that yet another duplicative injunction covering the same issues is unnecessary.

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B.

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No Injunctive Relief Regarding The UEP Trusts Subdivision Dispute Is


Necessary Or Appropriate.

The United States wants this Court to order Colorado City to stamp with approval a

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The employees also received workplace

UEP Trust subdivision proposal, even though its proposal does not comply with Colorado
Citys subdivision ordinance or Arizona law, and even though it has not been reviewed for
the health, safety, and welfare of the Colorado City residents.53 The United States also
seeks this relief even though it has never identified the UEP Trust as an aggrieved
49

Id. at p. 804; see also Training Materials, Sign-In Sheets, and Certificate of Attendance,
admitted as Exhibits 3430, 3431, 3432, and 3433.
50
Id. at pp. 804 805.
51
Id. at p. 817.
52
Id. at pp. 816 818.
53
Right now, no proposal exists from the UEP Trust because it has not submitted any
proposed plats or other required subdivision documents to Colorado City for review. See
David Dargers Hearing Transcript, at pp. 840 841.
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person under 42 U.S.C. 3602(i). Regardless, this Court need not enter any injunctive

relief regarding the UEP Trusts subdivision issue because whether it subdivides or not is

entirely within its control.54 Yet, it has chosen not to, and even to this day it refuses to

submit a simple subdivision application. Furthermore, the Mohave County Superior

Court has already retained jurisdiction to handle this subdivision issue.

1.

This Court heard from Dale Miller regarding the subdivision issue. Mr. Miller is a

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professional engineer who works for Rick Engineering and who was proactively hired by
Colorado City to work with Zachary Renstrom, the UEP Trusts engineer, on the UEP
Trusts subdivision and platting requests.55 Mr. Miller began working with Mr. Renstrom
in 2014. Before he began this work, however, he first conducted a formal review of
Colorado Citys subdivision ordinance and concluded that, other than some minor
cosmetic changes, the ordinance was standard and appropriate.56 He also invited Mr.
Renstrom to comment on the ordinance, but Mr. Renstrom refused.57
After some initial meetings and conversations, Mr. Miller and Mr. Renstrom

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The UEP Trust Rejected Its Agreement With Colorado City


Regarding An Abbreviated And Modified Platting Process.

agreed to a process by which the UEP Trust could use a modified process to plat its
property without following all the steps of the subdivision ordinance.

This process

became known as an abbreviated and modified platting process.58 Mr. Miller and Mr.
Renstrom then appeared before the Colorado City Town Council on February 2, 2015 to
present the proposed process, after which the Town Council voted to tentatively approve
an abbreviated subdivision process for a UEP subdivision with a clear definition of what
54

The United States argument that Colorado City refuses to approve UEP Trust
subdivision plats is false. Colorado City has encouraged the UEP Trust to subdivide
through the appropriate lawful process and has repeatedly tried to work through the issues
and facilitate the subdivision, only for the UEP Trust to improperly accuse it of
discrimination.
55
See Dale Millers Hearing Transcript, at p. 941.
56
Id. at pp. 941 943; see also Subdivision Ordinance, admitted as Exhibit 1022.
57
Id. at p. 943.
58
Id. at pp. 944 946.
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is considered improved and unimproved, with the understanding that the Council may

need or want to revisit eligibility.59

Mr. Miller then drafted a Memorandum of Understanding to reduce to writing what

he and Mr. Renstrom had agreed to, and what the Town Council had approved.60 The text

of the Memorandum of Understanding defined the types of properties eligible and

ineligible for the abbreviated and modified platting process.61

Renstrom and Bruce Wisan dated February 17, 2015 and attaching the Memorandum of

Understanding, Mr. Miller stated that the MOU addresses the Town Council directive

and is in line with our discussions during and immediately following the Council meeting

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on February 2.62 Mr. Miller asked Mr. Renstrom and Mr. Wisan to identify any revisions

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they wanted, but neither suggested any revisions.63

In an e-mail to Mr.

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Instead, Mr. Renstrom submitted a dot map to Mr. Miller to try and visually

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convey the information in the Memorandum of Understanding.64 The dot map itself,

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however, was not an agreement. Mr. Miller also identified several errors on the dot map,

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which he sent to Mr. Renstrom.65

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The next step was for Mr. Miller to draft a Development Agreement to turn the

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Memorandum of Understanding into a legally-binding agreement.66 The Development

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Agreement contained the exact same language as the Memorandum of Understanding.67

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59

Id. at pp. 946 949; see also February 2, 2015 Meeting Minutes, admitted as Exhibit
3343.
60
See Memorandum of Understanding, admitted as Exhibit 486.
61
Id.; see also Dale Millers Hearing Transcript, at pp. 950 956.
62
See February 17, 2015 E-Mail, admitted as Exhibit 3361.
63
See Dale Millers Hearing Transcript, at pp. 951 952.
64
See Dot Map, admitted as Exhibit 3495; see also Dale Millers Hearing Transcript, at
pp. 957 958.
65
See February 23, 2015 E-Mail, admitted as Exhibit 3511; see also Blow-Up Example of
Dot Map Problems, admitted as Exhibit 3522, and Dale Millers Hearing Transcript, at pp.
956 965.
66
See Development Agreement, admitted as Exhibit 3363.
67
Id.
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Mr. Miller sent the Development Agreement to Mr. Renstrom on March 6, 2015 and

asked for any comments or changes, but once again he did not respond.68

Mr. Miller believed that the UEP Trust would sign the Development Agreement so

the parties could commence subdividing.69 But instead, the UEP Trust refused. Mr.

Renstrom sent an e-mail to Mr. Miller on March 13, 2015 with a series of questions and

accusatory statements.70 Mr. Miller expressed his surprise over receiving such an e-mail

as follows:

And Id just like to premise that the review of this document by


saying that this e-mail caught me totally off guard and by surprise. I
was rather shocked when I got it, because up until receipt of this email I thought Zach Renstrom was 100 percent on board with the
MOU and the development agreement, which is essentially the same
thing. And all of a sudden it appears that you know, heres a party
that had been working with me for however many months, and all of
a sudden he does a 180 and is questioning the MOU and the
development agreement.

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So, you know, it leads you to believe that somebody got to him and
told him, you will not agree, you know, with this document, even
though its the same thing.71

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Mr. Miller answered Mr. Renstroms questions and tried to convince him to have the UEP
Trust sign the Development Agreement, but the UEP Trust still refused.72

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The UEP Trust then demanded that Colorado City sign an agreement that the UEP
Trusts attorneys had drafted and called an Agreement to Record Subdivision.73 This
agreement violated Arizona law regarding subdivision and was contrary to the agreement

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68

See March 6, 2015 E-Mail, admitted as Exhibit 3364; see also Dale Millers Hearing
Transcript, at pp. 966 967.
69
See Dale Millers Hearing Transcript, at pp. 968 969.
70
See March 13, 2015 E-Mail, admitted as Exhibit 3496.
71
See Dale Millers Hearing Transcript, at pp. 974 975.
72
Id. at pp. 976 980.
73
See Agreement to Record Subdivision, admitted as Exhibit 490.
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Case 3:12-cv-08123-HRH Document 1023 Filed 01/09/17 Page 18 of 26

that Mr. Miller and Mr. Renstrom reached and that the Town Council approved

regarding the abbreviated and modified platting process.74

Mr. Miller attended a Town Council meeting on April 13, 2015.75 He updated the

Town Council on his interactions with Mr. Renstrom, the Memorandum of

Understanding, the Development Agreement, and the UEP Trusts demand that Colorado

City instead sign its Agreement to Record Subdivision.76 After discussion, comments

from the public, and concerns to ensure that everything was handled correctly, the Town

Council voted to withdraw its offer of an abbreviated and modified platting process

(which the UEP Trust had already rejected), advise the UEP Trust to comply with the

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subdivision ordinance, and seek guidance from Judge Teilborg.77 The UEP Trust then

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continued its litigation threats.

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Despite the UEP Trusts refusal to sign the Development Agreement that it had

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previously agreed to, it can still subdivide its property today if it so desired. All it has to

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do is submit a subdivision application. It can also request exceptions to the subdivision

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ordinance. Mr. Miller and David Darger have repeatedly advised the UEP Trust to submit

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an application to move the process forward, but it refuses.78 The reason is because it does

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not want to incur the costs normally associated with subdivision, and instead wants this

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Court to order Colorado City to approve the UEP Trusts non-compliant subdivision

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proposal and thereby shift the costs to Colorado City and its residents.79 The UEP Trust

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74

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See Dale Millers Hearing Transcript, at pp. 980 982.


See April 13, 2015 Town Council Meeting Minutes, admitted as Exhibit 3344.
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Id.
77
Id.; see also Dale Millers Hearing Transcript, at pp. 983 984, in which he describes
that the Town Council had also received a letter from the Arizona Attorney Generals
Office stating that the Development Agreement may be discriminatory because it treats
vacant property different from developed property.
78
See April 29, 2015 E-Mail to Mr. Renstrom, admitted as Exhibit 3500; see also
Subdivision Application and Variance Request, admitted as Exhibit 3438; Subdivision
Fee Schedule, admitted as Exhibit 3437; Dale Millers Hearing Transcript, at pp. 984
987; and David Dargers Hearing Transcript, at pp. 825 832.
79
See David Dargers Hearing Transcript, at pp. 827 828, and 842. Colorado City has
also offered the UEP Trust the ability to subdivide its property in phases to help with the
cost, but the UEP Trust has again refused. Id. at pp. 842 843.
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Case 3:12-cv-08123-HRH Document 1023 Filed 01/09/17 Page 19 of 26

created this entire situation and has used its false accusations against Colorado City about

discrimination just to avoid the required and customary costs to subdivide.80 The United

States bought the UEP Trusts argument and decided to support a property owner who

wants to violate Arizona subdivision statutes, rather than a municipality that is trying to

protect the health, safety, and welfare of all residents. This Courts intervention in this

dispute is entirely unnecessary.

2.

The Mohave County Superior Court Is Now Handling This Issue.

This Court should also decline to issue any injunctive relief regarding the UEP

Trusts subdivision issue because the Mohave County Superior Court has already retained

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jurisdiction.

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threatened litigation, Colorado City filed a Complaint for Declaratory Relief to obtain a

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final judicial decision on the issue.81 Colorado City seeks declaratory relief regarding

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whether it has the authority under Arizona law to regulate subdivision issues for property

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located within its boundaries, and whether it can require the UEP Trust to comply with its

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subdivision ordinance for the property it seeks to subdivide.82 Judge Conn from the

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Mohave County Superior Court is now handling this Complaint. The UEP Trust moved

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to dismiss it and argued, in part, that Judge Teilborg should resolve the issue. Judge Conn

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denied the motion to dismiss, retained jurisdiction, and has since issued a scheduling order

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to resolve the dispute in a fairly quick timeframe.83 The UEP Trust can present all its

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evidence and arguments to Judge Conn, after which Judge Conn will make a final ruling,

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which Colorado City will then follow.84 Additional judicial relief from this Court is

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After the UEP Trust refused to sign the Development Agreement and

The UEP Trusts claim that it would have to dig-up and replace every utility pipe is
false. In fact, this claim is such an abuse of the truth that it undermines its own
credibility.
81
See Complaint for Declaratory Relief, admitted as Exhibit 3377; see also David
Dargers Hearing Transcript, at pp. 836 839.
82
Id.
83
See Judge Conns Order denying the UEP Trusts motion to dismiss and the Scheduling
Order, both attached as Exhibit 5.
84
See David Dargers Hearing Transcript, at p. 839, in which Mr. Darger responded as
follows when asked whether Colorado City would follow the Courts ruling: Yes. Thats
why we filed it, so that we could have that Court give direction on it and Of course.
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Case 3:12-cv-08123-HRH Document 1023 Filed 01/09/17 Page 20 of 26

unnecessary and could cause confusion because this Court and Judge Conn could reach

different conclusions. It therefore makes more sense for Judge Conn to resolve the issue

because he will have the benefit of full briefing, the presentation of all the evidence and

witnesses, and potentially a trial to decide the issues.

C.

The United States wants this Court to order the Defendants to adopt new policies

and procedures to state that they will only issue building permits if the property owner

consents. This relief would cause additional problems.

No Injunctive Relief Is Necessary With Respect To Building Permits.

Andrew Barlow is the Building Official for Colorado City and Hildale.85 He is

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certified through the International Code Council to issue permits and complete

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inspections.86

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completes an application, submits plans for review, pays any required fees, and then

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schedules any necessary inspections for final approval.87 Mr. Barlow does not require an

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applicant to submit documentation that they own the property or that they have an

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occupancy agreement for the property.88

To obtain a permit, an applicant receives a plan submitted checklist,

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This Court heard substantial testimony regarding the unique way in which property

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ownership works in Colorado City and Hildale. The FLDS Church originally organized

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the UEP Trust upon tenants of the FLDS faith and under the laws of the State of Utah.

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Members of the FLDS Church consecrated their property to the FLDS Church as part of

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their religious expression and beliefs. In 2005, the State of Utah took over the UEP Trust,

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which is a function of the FLDS Church, and has since systemically evicted hundreds, if

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not thousands, of residents from homes that they or their ancestors built and consecrated

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to the FLDS Church, including most recently elderly women with serious medical

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Whatever the Court orders, then we will follow that.


85
See Andrew Barlows Hearing Deposition Transcript, at p. 9.
86
Id. at p. 19.
87
Id. at pp. 30 33.
88
Id. at pp. 33 34.
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Case 3:12-cv-08123-HRH Document 1023 Filed 01/09/17 Page 21 of 26

problems and nowhere else to live. Colorado City and Hildale are not parties to these

property disputes and have told everyone to comply with the law. Requiring the property

owners consent to obtain a building permit will not solve these problems.

Mr. Barlow has firsthand experience dealing with the property disputes while

trying to ensure that proper and safe permitting occurs. He provided the following

explanation for why the property owners signature is not necessary to obtain a permit:

Because the purpose of the Building Department is to is to ensure


safe building practices to make sure that the building is safe and, you
know, to protect people, protect lives, property, and to and to keep
the cost of construction down as much as possible. Its not
necessarily to get involved in land disputes.89

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And when asked why he believes that removing the owners signature line from the
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application form helped to avoid discrimination, Mr. Barlow explained the following:
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Because I just think that it would make it easier for people to get the
permit. I dont feel like we need to complicate the permitting
process. The purpose of the of the Building Department is to
ensure that its safe housing safe housing building practices. Its
not my its not the Building Departments responsibility to help
even help decide who is in the home, or its not its not something
thats part of the Building Department.90

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This testimony is uncontroverted.

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The Building Department should not get involved in resolving property disputes

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between the UEP Trust and an applicant. Nor should it enforce rental agreements or

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require the payment of rental fees before it issues a permit. Yet, that is what would occur

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if this Court orders the Defendants to issue a building permit only if the property owner

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consents.91

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89

Id. at p. 56.
Id. at pp. 61 62.
91
The United States also fails to recognize that any individual or entity, including the
UEP Trust, can file a request with Judge Teilborg under his injunctive order if they
believe the Defendants have acted in a discriminatory manner with respect to building
permits. This protection alleviates the need for any additional injunctive relief.
90

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D.

The Defendants Have Revised Water Regulations To Ensure Fair


Treatment To Existing Customers And New Applicants.

In 2014, and following the Cooke case, the Defendants revised water regulations to
further define the water conservation policy, allow one meter to serve additional buildings
on the same property, recognize existing non-conforming uses, prohibit the needless waste
of culinary water, clarify the responsibility for construction costs, and describe the
conditions for impact fees. The Defendants again revised the water regulations in 2015 to
provide greater clarity and to address customer complaints. These revisions included
adopting a meter sizing chart, clarifying that an application expires after six months if no
fees or deposits are paid, and requiring an applicant to obtain the existing customers
consent to transfer the water connection for a particular property or, in the alternative,
providing a five-day notice to cancel a service agreement to the customer of record if
contact attempts fail. This procedure was developed to protect the due process rights of
the existing customer and the applicant.
The Defendants again revised the water regulations in 2016 in response to
customer complaints and removed the requirement that a new applicant obtain the current
customers consent when applying for service to property that has an existing service
agreement. The regulations instead outline a simple verification that a current customer is
no longer occupying the property. The intent is to facilitate the transfer of service to a
new applicant as quickly as possible, yet protect a current customer occupying that
property from illegal self-help evictions.
David Darger testified that the Defendants have responded to citizen complaints in
a positive effort to resolve concerns and have revised the water regulations to provide
non-discriminatory service. Mr. Darger also provided an example of the kind of disputes
that the Defendants face to show why it is important to protect the due process rights of all
individuals involved:
So we had a person by the name of Merril Harker who has an
account. He has a son-in-law named Spencer Black, Jr. And they
have a disagreement. Mr. Black was living in this at this lot. And
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Case 3:12-cv-08123-HRH Document 1023 Filed 01/09/17 Page 23 of 26

so Mr. Harker wants to evict or tell Mr. Black, you get out of this
property.

So Mr. Harker has the account. Hes the customer on the record. He
comes to the Utility Department and says, I want this account
temporarily turned off. I want the water shut off. And so the Water
Department says, well, youre the account holder, so well shut it
off. So they shut it off and locked up.

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Mr. Black goes and cuts the lock. So what does the City do? Well,
we refer it to our legal counsel, and its in process.

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Thats our only issue. That is our only issue, is if theres somebody
there, maybe theyve been there for a year, maybe 15 years, and
theyre a current customer, we want to handle that appropriately.
We want to give everyone due process. And thats why we have
we try to have a level of due process. And were sensitive to the
complaint of someone having a hard time trying to get water into
their name. And I believe that weve resolved that.92

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If an applicant or existing customer believes they are being treated unfairly, and their

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concerns are known, the Defendants are positively responding to resolve those concerns.

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If their concerns are still not resolved, they can seek redress from Judge Teilborg. No

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additional injunctive relief is necessary.

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E.

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No Legitimate Dispute Exists Regarding The Culinary Water Impact


Fee.

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The United States request that this Court order an independent engineering firm

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to review the Defendants culinary water impact fee ignores the fact that an independent

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engineering firm already set the current impact fee.93

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This Court heard from Dustyn Shaffer, who works for Sunrise Engineering and

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who wrote the Culinary Water Impact Fee Facilities Plan for Colorado City and Hildale in

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December 2014.94 Mr. Shaffer explained that Arizona and Utah have very strict laws on

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92

See David Dargers Hearing Transcript, at pp. 808 809.


Water impact fees allow municipalities to develop water resources to accommodate new
connections. To arbitrarily strike down a years-long impact fee process would deprive
the Defendants of the very tool needed to comply with Judge Tielborgs injunction to
provide new water connections.
94
See Culinary Water Impact Fee Facilities Plan, admitted as Exhibit 3360.
93

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Case 3:12-cv-08123-HRH Document 1023 Filed 01/09/17 Page 24 of 26

how impact fees can be developed, and those are laid out specifically on notifications,

public hearings, exactly what can and cannot be used for the impact fee analysis, [and]

what kind of improvements are eligible for that study.95 Mr. Shaffer also explained that

he held a public meeting in Colorado City in January 2015 to explain his conclusions

regarding the impact fee and that Zach Renstrom and Bruce Wisan were present on behalf

of the UEP Trust, but neither raised any complaints or critiques about the impact fee or

the work that Sunrise Engineering completed even though they were invited.96

Based upon Sunrise Engineers analysis, Mr. Shaffer concluded that the maximum

eligible impact fee is $12,210.97 The Defendants then adopted an impact fee in the

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amount of $12,000, which Mr. Shaffer believes is reasonable.98 If the UEP Trust

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believes it is unreasonable, it can file a complaint with the Utah State Ombudsman, but it

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has not done so.99 Mr. Shaffer also recommends that Colorado City and Hildale update

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their impact fee every three to five years, which means the next update will occur between

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2017 and 2019.100 No reason exists for this Court to issue any injunctive order regarding

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the impact fee.

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F.

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The United States request for a monitor is unnecessary. Judge Teilborg has

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already retained jurisdiction until November 2024 to resolve any fair housing issues

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through his injunctive order.101 The fact that the Defendants have complied with this

A Monitor Is Unnecessary To Ensure The Defendants Compliance.

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95

See Dustyn Shaffers Hearing Transcript, at p. 895.


Id. at p. 903 906.
97
See Culinary Water Impact Fee Facilities Plan, admitted as Exhibit 3360; see also
Dustyn Shaffers Hearing Transcript, at pp. 910 912.
98
See Dustyn Shaffers Hearing Transcript, at p. 912. Zach Renstrom, who testified for
the United States, also agrees that it is reasonable to adopt and charge an impact fee to
develop water and that Apple Valley, a neighboring community, also charges a $12,000
impact fee. See Zachary Renstroms Hearing Transcript, at pp. 448 449, and 460 461.
99
Id. at p. 913.
100
Id. at pp. 913 914.
101
See Judge Teilborgs November 26, 2014 Amended Judgment and Permanent
Injunction, admitted as Exhibit 723.
96

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injunction for the past two years (as evidence by the lack of any adverse order from Judge

Teilborg) shows that additional oversight via a monitor is unnecessary. The Defendants

are proactively responding to complaints to resolve them and prevent discrimination. The

United States also fails to consider the cost of a monitor and the Defendants inability to

pay. Finally, long-standing case law shows that this Court should be reluctant to impose a

monitor because it is not the least intrusive method to remedy the jurys conclusions, but

rather would result in overreaching federal intrusion into the Defendants business

operations. See e.g., United States v. City of Parma, Ohio, 661 F.2d 562, 576 and 579 (6th

Cir. 1981); United States v. Jamestown Center-In-The-Grove Apartments, 557 F.2d 1079,

10

1080-81 (5th Cir. 1977).

11

IV.

CONCLUSION.

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The Defendants request that this Court reject the United States ideas for injunctive

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relief, which are disconnected from the facts, evidence, and law. Instead, this Court

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should adopt the specific plans that the Defendants have outlined above.

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commonsense is needed here, not the destroy-at-all-costs attitude of the United States.

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The Defendants hope that this Court will be the voice of reason.

Some

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Dated January 9, 2017.


GRAIF BARRETT & MATURA, P.C.

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By:

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/s/ Jeffrey C. Matura


Jeffrey C. Matura
Melissa J. England
1850 North Central Avenue, Suite 500
Phoenix, Arizona 85004
Attorneys for Defendant Town of
Colorado City, Arizona

Case 3:12-cv-08123-HRH Document 1023 Filed 01/09/17 Page 26 of 26

DURHAM JONES & PINEGAR, P.C.

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By:

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/s/ R. Blake Hamilton


R. Blake Hamilton
Ashley Gregson
Durham Jones & Pinegar, P.C.
111 East Broadway, Suite 900
Salt Lake City, Utah 84111
Attorneys for Defendants City of Hildale,
Utah, and Twin City Water Authority

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CERTIFICATE OF SERVICE

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I hereby certify that on January 9, 2017, I electronically transmitted the foregoing


document to the Clerks Office using the CM/ECF system for filing and transmittal of
Notice of Electronic filing to the following CM/ECF registrants:

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R. Tamar Hagler
Eric W. Treene
Sean R. Keveney
Matthew J. Donnelly
Emily M. Savner
Sharon I. Brett
United States Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, NW
Washington, D.C. 20530
Attorneys for Plaintiff United State of America

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R. Blake Hamilton
Ashley Gregson
Durham Jones & Pinegar, P.C.
111 East Broadway, Suite 900
Salt Lake City, Utah 84111
Attorneys for Defendants City of Hildale, Utah,
Twin City Water Authority, and Twin City Power

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/s/ Carolyn Harrington


4832-7833-2480

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