Joseph M. "Smokin' Joe" Anderson not only has a contractual right, but a constitutional right to continue receiving water from the Town of Lewiston, his attorney said in State Supreme Court on Friday.
Joseph E. Zdarsky made his argument in a case brought by the town, which seeks to nullify the contract by which Anderson has been receiving water for more than a year.
"Constitutionally," Zdarsky said, "once he was hooked up, he has the right to keep the service."
Anderson has been receiving water through two hookups to the Town of Lewiston distribution lines -- one at his main Trading Post complex on Saunders Settlement Road and the other for his retail outlet and cigarette-manufacturing plant on Indian Hill. His connection at the Trading Post is to a line that parallels Saunders Settlement Road. His connection at Indian Hill is on the property of Arnold Kraft, which abuts the Tuscarora Indian Reservation.
Edward P. Jasella Jr., the town attorney, said the hookups were approved and made by the town's water superintendent, Steven Ryder, who was unaware of the rules governing the Tuscarora Reservation, where Anderson's businesses are located.
"Ryder approved the connections unaware that permission is needed from the Council of Chiefs," Jasella said.
Zdarsky noted that Anderson was receiving not only the water, but bills for the water, which he has paid.
"The town knew he (Anderson) was getting the water," Zdarsky said, "and they were fully aware that the water was for his businesses. The hookup is an implied contract, and as long as he paid for it, he has a constitutional right to keep the service."
Jasella said that once the hookups were made, the town asked Anderson to delay using the water until the Council of Chiefs gave its approval. He said the town tried to negotiate with the Council of Chiefs to obtain its approval.
"We were wrong," Jasella said. "We couldn't work it out. The point is, the Council of Chiefs makes the decision, not Smokin' Joe Anderson."
State Supreme Court Justice Edward A. Rath Jr. reserved decision on the matter.