Saturday, December 22, 2007

Fire protection is relevant to made-service-available test

On September 27, 2007, the U.S. District Court for the Western District of Oklahoma entered a new decision addressing several aspects of the "made service available" test under Section 1926(b). The decision contains two critical treatments of this test. First, the Court determined that fire protection is relevant to the "made service available" test. Specifically, the Court stated: "By accepting loans from the FmHA, the District agreed to abide by the governing federal regulations. Those regulations provide that fire protection service is to be supplied to the extent practicable. 7 C.F.R. § 1780.57. It thus becomes an issue of fact whether such service was practicable with respect to the Disputed Customers." You will recognize this argument from prior posts on this blog. Second, the Court determined that it would apply a customer-by-customer analysis of the "made service available" test rather than the area-by-area analysis urged by the City of Guthrie. The September 27, 2007 decision is not yet published. You can view it here.