By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — Gov. Katie Hobbs won’t let Republican lawmakers strip away the right of Attorney General Kris Mayes to sue the owners of corporate farms whose groundwater pumping dries up the wells of their neighbors.

Nor will she allow them to erect hurdles for others who file “nuisance” lawsuits about the loss of groundwater.

In her veto of House Bill 2124 on Tuesday, the governor did not address claims by Mayes that such a change in law would undermine her ability to step in to protect property owners “where individuals may lack the resources to fight these battles.”

Instead, Hobbs chided lawmakers who have been approving a series of changes in water laws on a piece-meal basis.

“I have consistently stated that water policy needs to be addressed in a holistic manner that provides real solutions for the challenges we face throughout the state,” the governor wrote. “I look forward to continuing to work with both the House and the Senate to craft a package of proposals that does exactly that.”

Hobbs used much of the same verbiage in her veto of House Bill 2063, which would have allowed the owners of certain wells, now exempt from having to register with the Arizona Department of Water Resources, a right to withdraw up to 35 gallons per minute.

But the bigger issue is the effort in HB 2124 to expand existing laws designed to protect agriculture.

Those statutes already give these operations substantial immunity from nuisance lawsuits. There also are requirements for a court to award legal fees in these cases if the litigation was not filed in good faith or it was done to harass the other party.

Rep. Austin Smith sought to add an automatic entitlement of court costs and legal fees if the lawsuit “was filed to take away or reduce the water used by the other property.” More to the point, the proposal by the Wittman Republican would have that occur regardless of whether the person filing the suit was acting in bad faith.

That’s just part of the concern Mayes had with the legislation.

After gaining House approval, Republican Sen. Sine Kerr, a Buckeye dairy farmer, added language stripping from existing laws the ability of the state attorney general to file any sort of nuisance lawsuit at all.

All this comes as Mayes said she was looking to use nuisance laws to go after farmers using existing state laws to legally pump limited quantities of groundwater.

While there are legal restrictions governing pumping in some urban areas, rural agriculture is largely unregulated, with farmers who own or lease land pretty much able to withdraw what they can without limit. In fact, efforts to even require farmers just to report how much they are withdrawing have failed to get legislative approval.

That left Mayes looking for other ways to curb the practice, launching investigations into whether the activities of corporate farms is damaging their neighbors. The attorney general specifically said she was hearing from residents “whose wells have gone dry or will in the near future thanks to mega-farms and Wall Street hedge funds who knew they could take advantage of our state.”

And she specifically named the Saudi Farm owned by Fondomonte in La Paz County and the Riverview Dairy in Cochise County.

The ammunition Mayes has — what HB 2491 sought to take away from her — is that laws declare that “nuisances” are any activities that improperly injure, inconvenience, annoy or cause damage to others.

In general, nuisance laws in Arizona are built on the concept that someone’s otherwise legal use of property may affect the ability of someone else to use or enjoy his her her own property.

The attorney general said she has sent “dozens of investigators” to those two counties to look at complaints of wells drying up, the cracking of home foundations, and fissures she said are threatening homes. Mayes said she even has hired a hydrogeologist who could provide the kind of expert testimony that would be necessary to successfully pursue such litigation.

Mayes has acknowledged the lack of regulation of groundwater pumping in many parts of the state and the legal ability to pump unlimited quantities of groundwater from basins that are depended on by not just other farmers but also by some cities for drinking water. The attorney general said, however, none of that permits someone to create a nuisance.

In a letter to Hobbs seeking a veto, Mayes said the ability of her office to file nuisance complaints on behalf of affected residents allows her office to protect communities and water supply, “filling in the gap where individuals may lack the resources to fight these battles.”

The attorney general was equally unhappy with the provision sought by Smith about awarding court costs and legal fees in such cases.

“This bill strips vulnerable rural Arizonans of one of their few tools to protect the fundamental rights through due process,” she told the governor.

There have been other efforts to limit pumping.

The state did cancel leases it had with Fondomonte which had been growing alfalfa to feed dairy cattle in the Middle East. But the company continues to farm on other private lands.

Riverview Dairy bought more than 50,000 acres of land to farm near Willcox.

Mayes does have a backup plan if, for whatever reason, nuisance lawsuits fail to produce the desired result: take the issue of groundwater pumping directly to voters with an initiative.

That suggestion, however, drew criticism from both Smith, who co-chairs a special House panel named to investigate Mayes, as well as Rep. Jacqueline Parker, R-Mesa, who is the chair of what has been dubbed the Ad Hoc Committee on Executive Oversight.

“Publicly advocating for a ballot measure raises questions about your ability to impartially perform any duties required for any future ballot measure relating to groundwater issues,” they wrote to Mayes.
In that letter, they also cited the financial damage that could be done to agriculture if Mayes pursues the issue of investigating — and potentially curbing — groundwater pumping.