PHOENIX — Attorney General Kris Mayes said Tuesday she will file suit “in the next two weeks” to halt the pumping of water by corporate farms in two rural areas in Arizona.
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Legal
Arizona AG gears up to fight 'nuisance' water pumping by farms
Fighting Trump proposals, Comstock Act also on the agenda
Attorney General Kris Mayes details her plans Tuesday to use state nuisance laws to end the ability of a Saudi company to pump unlimited quantities of groundwater in western Arizona. (Capitol Media Services photo by Howard Fischer)
PHOENIX — Attorney General Kris Mayes said Tuesday she will file suit “in the next two weeks” to halt the pumping of water by corporate farms in two rural areas in Arizona.
Mayes said she is pursuing a legal theory that the farms operating on land leased by the company, some owned by the state, are creating a “nuisanc” by draining the water that others who live in the area need. That, she said, allows her to take action after fellow Democrat Gov. Katie Hobbs refused to cancel several state leases and after the Legislature has failed to enact a comprehensive program to deal with groundwater restrictions in rural areas.
In a wide-ranging press conference, Mayes also said she is making preparations to sue if the Trump administration follows through with many of what is in Project 2025.
She particularly focused on proposals to use the 1873 federal Comstock Act, still on the books, which bans interstate transport of obscene items. Mayes said she fears some might try to use it to ban access to drugs used in medication abortions, possibly, even birth control devices — and even subject women crossing state lines for abortion to government surveillance.
Mayes also said she is eyeing ways to challenge anticipated actions by Trump on immigration, ranging from mass deportations to eliminating the Deferred Action for Childhood Arrivals program started under the Obama administration that allows children brought into this country illegally to not only remain but also to work.
She also is reviewing existing abortion laws in the wake of voter approval of Proposition 139. Mayes said there are key questions that need to be addressed about which of those laws, like requiring parental consent for an abortion, survive after voters put a fundamental right to abortion in the Arizona Constitution.
But the most immediate action, she said, will be the pursuit of Fondomonte, the Saudi-owned firm that has land in La Paz County where it grows alfalfa to ship to the kingdom to feed dairy cattle there.
Mayes has not disputed that the company, at least on the surface, is not violating state laws. That’s because there are no statutory restrictions on the ability of those who own or lease land not located in designated “active management areas” to pump as much water as they say they need from the ground beneath it.
The state canceled one of its leases with the company last year. But Mayes noted it still has other leases of state land that run until 2030.
“I believe the governor should have canceled those leases,” the attorney general said. “But she did not.”
Mayes said that forces her to step in.
“What are we going to do, allow the Saudis to completely dewater La Paz County?” she asked.
“Is that fair to the people of La Paz County or to Arizona? I don’t think so,” Mayes continued. “Just because the contact goes out until 2030, that’s not a reason to do nothing.”
The problem, said Mayes, extends beyond the governor and state-leased lands as there are issues of farm operations on private properties outside these active management areas.
“We need the Legislature to get off its butt and help,” she said.
Hobbs has tried to distance herself from the whole fight, pointing out she inherited the problem. And she told Capitol Media Services when asked about the issue “you’d have to ask the Ducey administration about that.”
Mayes acknowledged that not just Fondomonte but the Riverview Dairy in Cochise County have been doing what state law allows: pumping unlimited — and unmonitored — quantities of groundwater.
But the attorney general contends none of that overrides laws that make it illegal for one property owner to create a nuisance that affects others. And she said she now has the evidence.
“I have hired two hydrologists out of this office,” Mayes said. “They are completing or have completed their analysis,” she said to prove what the farms are doing is damaging others.
The attorney said she is “dead serious” about using that law to halt pumping by Fondomonte.
“And I’m dead serious about using nuisance law to stop the Riverview Dairy from destroying the economy of Cochise County.”
Whether the law is as clear as all that remains to be seen.
Rep. Jackie Parker, R-Mesa, pointed out earlier this year there is a state law that says farms are presumed not to constitute a nuisance “unless the agricultural operation has a substantial adverse effect on the public health and safety.”
Parker also said it is the Legislature, not the attorney general, which sets policies on who can withdraw groundwater and how much. It was the authorization of the Legislature decades ago to allow regulation of groundwater pumping in certain areas that led to restrictions — but only in those areas.
Mayes also said she is prepping for a fight that may or may not materialize: Actions by the new president or the now Republican-controlled Congress to enact some of the provisions in Project 2025.
Put together by conservative organizations from across the country, many with ties to Trump, it is described by its authors as a “menu of policy suggestions to meet our country’s deepest challenges and put America back on track.”
Some are items beyond the purview of states, such as cutting government spending, increasing energy production and boosting accountability of federal agencies, including the FBI and the Department of Justice, to the administration.
Mayes, however, is focusing on several recommendations she considers unconstitutional. That includes reviving the little-used — but never-repealed — 1873 Comstock Act.
“That Comstock Act would effectively create a national abortion ban by prohibiting the mailing of drugs like mifepristone,” she said. That drug blocks the hormone that allows pregnancy to continue.
But Mayes said it could be even more widely used, perhaps banning the shipment of drugs that prevent contraception.
“It also has a provision in it that would allow the federal government to surveil the women of this country as they seek reproductive care and as they travel across state lines,” she said. “Those kinds of provisions are unacceptable to the people of this country, to Arizonans.”
Mayes said what they also are, if nothing else, are constitutional rights. That includes a right in the Arizona Constitution, dating to statehood, of people to be left alone in their private affairs as well as the just approved Proposition 139 that says people have a right to terminate a pregnancy.