By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — Attorney General Kris Mayes is planing to use “nuisance” laws to go after farmers who are using other existing state laws to legally pump unlimited quantities of groundwater.

At a press conference Thursday at the Capitol, the Democrat AG lashed out at House Republicans for launching a probe into how she is running her office. And one specific item GOP lawmakers want to investigate is her public announcement that she is investigating water use in rural Arizona with an eye on taking some farmers to court.

Mayes defends the move.

“I have been traveling to rural counties that lack any groundwater protection to directly hear 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,” she said.

But Rep. Jackie Parker, R-Mesa, who chairs a panel formed to investigate her actions, said there’s a legal problem with that. It starts, she said, with a state law that says agricultural operations are presumed not to constitute a nuisance “unless the agricultural operation has a substantial adverse effect on the public health and safety.”

Even more overarching is that it is the Legislature — and not the attorney general — that sets policies on who can withdraw groundwater and how much. While that is regulated in certain urban areas, that is not the case elsewhere.

That leaves the question of what authority Mayes claims to have to use nuisance laws to go after farmers, whether corporate or individual, over their pumping. That, she said, is still under review.

“My office is very seriously investigating the very real possibility that these huge mega-farms, including the Saudi farm owned by Fondomonte and the Riverview Dairy in Cochise County do violate our nuisance laws,” Mayes said.

That includes sending “dozens of investigators” to La Paz and Cochise counties to look at issues such as wells drying up, the cracking of foundations in homes and fissures threatening houses.

“And I have hired a hydro geologist to provide expert testimony in a potential lawsuit,” she said.

She also said it doesn’t matter if other laws have permitted those who own or lease land in rural areas to pump as much water as they want. Mayes said that does not preclude her from going to court to claim pumping violates nuisance laws.

She cited the decision by her office to use nuisance laws to go after plans by a company to start mining rock and gravel on a 25-acre site it owned in the Cedar Heights neighborhood in a rural area near Chino Valley. The site was within 100 feet of existing homes.

State Mine Inspector Paul Marsh said he had no choice under existing laws but to approve the plan. Mayes then got an injunction.
But there never was an actual ruling on whether the mine was a nuisance — or even whether the nuisance law applies: The plan was dropped after someone else bought the property.

And what of using the law to go after farmers?

“We’ll see in a court of law whether or not I’m right,” Mayes said.
The attorney general said, though, she is driven to pursue the theory because residents of the affected areas “are desperate for help,” people she said who have been “ignored by these Republicans,” gesturing to the state House.

There have been some efforts to deal with groundwater in rural areas.
The state canceled leases of its land with Fondomonte, which had been pumping water — no one knows how much because there is no monitoring — to grow alfalfa to feed dairy cattle in the Middle East.

But Fondomonte continues to farm on other private lands. And Minnesota-based Riverview bought more than 50,000 acres near Willcox.

Various legislative proposals to limit pumping — or even require the measuring of water withdrawn — have so far failed to advance amid opposition from farming interests.

On the other side are supervisors from several rural counties who openly worry that, absent some intervention, they will lack the water to serve residents, much less continue to grow.

“Wells are going dry,” said La Paz County Supervisor Holly Irwin, who has pushed for legislative action.

“It’s not about taking water from anybody,” she said. “It’s trying to protect what we have in the aquifers.”

There are some proposals to allow the formation of special districts to monitor and regulate pumping. But that idea has been hung up over who gets to decide whether to form a district and who makes decisions.

That, said Mayes, leaves nuisance lawsuits as one option — at least for the time being: Rep. Austin Smith, R-Wittman, vice chair of the special House panel, is trying to eliminate that.

He is the sponsor of House Bill 2124 to amend state agriculture laws to require a court to award legal fees in any nuisance lawsuit designed to “take or reduce the water used by the other party.” And if that’s not enough, the measure strips the attorney general of the ability to file nuisance actions of any type at all.

The measure needs final House approval before going to Gov. Katie Hobbs where it faces an uncertain future.

Gubernatorial press aide Christian Slater said his boss doesn’t comment on proposed legislation. But he noted she vetoed several other measures earlier this week saying she wants water policy “addressed in a holistic manner that provides real solutions for the challenges we face throughout the state.”

The Republicans on the special panel — Democrats refused to participate in what Minority Leader Oscar De Los Santos called a “sham committee” — also are unhappy Mayes has an ultimate fallback plan to deal with unregulated groundwater pumping: taking the issue directly to voters.

“I’m hoping we don’t get to the point where we have to do a ballot initiative,” she said. But that, says Mayes, would not be necessary if she is successful in using the nuisance law to curb pumping, “or these people (state lawmakers) get their act together and protect our groundwater supplies against unreasonable pumping by the Saudis and a Minnesota dairy and a whole bunch of other folks.”

Her comments about a ballot measure also have drawn the ire of Parker and Smith, who co-chairs what’s been dubbed the Ad Hoc Committee on executive oversight.

“Publicly advocating for a ballot measures 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 their role in heading the committee, they’ve gone a step farther.
In their letter to Mayes, they have demanded transcripts or recording of all her town hall meetings where groundwater or public nuisance issues were discussed. They also want emails — and not just to the AG’s office internet domain — mentioning any of a number of terms including groundwater, farm, pumping, nuisance, agriculture, dairy, wells or listening sessions.

And they want expense records of employees involved in nuisance or town hall issues.

Richie Taylor, Mayes’ press aide, said the office will comply with public records laws. And he said any advocacy by his boss on any ballot measure would be done on her own time and with her own money.
In investigating the AG’s actions, Parker and Smith said the issue goes beyond what authority she claims to have. They say there’s an financial component.

“Farming is a vital part of our state’s economy,” they said, citing 2019 figures from the University of Arizona that about 95% of these are “family farms.”

That same report says more than 40% of the farms are smaller than 50 acres, with 15% being 500 or more acres.
The House panel investigating Mayes is looking into more than just her actions related to groundwater.

House Speaker Ben Toma said he wants lawmakers to investigate other actions she has taken like indicting two Cochise County supervisors over their initial refusal to certify the results of the 2022 election. Republicans are unhappy she has refused to defend a state law prohibiting “biological boys” from participating in girls’ sports and another that contends the overturning of Roe v. Wade in 2022 means Arizona can enforce a territorial-era law outlawing abortion except to save the life of the mother.

Mayes also is investigating whether to bring charges against 11 Republicans who signed a document after the 2020 election declaring that Donald Trump had won the presidential vote here — he did not — and that they were the official Arizona electors.

Parker took a swat at the absence of Democrats from the committee’s first hearing.

“Clearly they think their elected officials are above the law,” she said.