By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — A group of farmers, ranchers and cities are going to court to stop Kris Mayes from pursuing her bid to halt pumping of groundwater by a Saudi-owned alfalfa farm.

Attorney David Brown says there’s no legal basis for the claim by the attorney general that the actions of Fondomonte are violating any state water laws. Instead, Mayes is trying to convince Maricopa County Superior Court Judge Scott Minder the company is creating a “public nuisance” by draining water from the aquifer.

But the real purpose behind the new court filing, Brown said, is the fear that if the attorney general wins in court, “this case is just the beginning.”

“This case is a known test case for future lawsuits against other groundwater users who lawfully use groundwater under Arizona law,” the lawsuit says. That could mean his clients, Brown told the judge.

Operating under the umbrella of the Arizona Farm and Ranch Group Coalition, they include a laundry list of not just associations representing farmers, ranchers and cattle feeders but also cities like Holbrook, Show Low and Winslow that pump — and rely on — groundwater. There also are several irrigation districts that serve farms, including those that grow alfalfa — just like Fondomonte.

So Brown wants to be able to represent them in court where they can argue, alongside Fondomonte, that Mayes’ lawsuit has no legal basis and should be dismissed.

What is clear — and what Brown wants Minder to understand — is the outcome of this case not only could overturn existing water laws but ultimately could set a statewide precedent that would have far-reaching effects.

A spokesman for Mayes said she will oppose the effort by the others to intercede in the case but declined further comment.

Central to the issue is that only a small part of the state, geographically, is within “active management areas.” These are basins where the state has concluded it needs to monitor and limit groundwater pumping.

But there is nothing in water law that precludes those who own or lease property in much of the rest of the state from pumping nearly as much water as they say they need. In the case of Fondomonte, it is growing alfalfa being used to feed dairy cattle in Saudi Arabia, where such farming is banned.

Multiyear legislative efforts to impose greater restrictions in rural areas have stalled. So Mayes is trying a largely untested legal theory of charging Fondomonte with creating a “public nuisance” by pumping so much water it has dried up nearby wells and resulted in subsidence of the land around Vicksburg.

The attorney general has made no secret of why she is pursuing this legal path.

“Fondomonte is taking advantage of Arizona’s failure to protect its precious groundwater resources,” Mayes said when she filed suit in December.
But Brown is telling Minder the attorney general has to live and act within the law Arizona does have.

It spells out that outside active management areas, landowners may “withdraw and use groundwater for reasonable and beneficial use.”

“The doctrine of reasonable use permits an overlying landowner to capture as much groundwater as can reasonably be used upon the overlying land,” Brown said, quoting from earlier Supreme Court rulings. He said it “relives the landowner from liability for a resulting diminution of another landowner’s water supply.”

He said what’s happening is Mayes is “unsatisfied” with what the Legislature has enacted.

“Notably, the complaint does not allege that Fondomonte has violated the Groundwater Management Act or any other law regulating groundwater use,” Brown said. That is why his clients — also users of groundwater in rural areas — are concerned.

“The attorney general’s lawsuit against Fondomonte alleging that its groundwater pumping is excessive represents a dangerous expansion of public nuisance law that threatens the rights of all groundwater users in Arizona, including farmers, municipalities, and businesses,” Brown said. That goes to what his clients fear if she wins — and why the judge needs to look beyond the specific claims against Fondomonte.

“In ruling on these issues, it is important that the court consider not only the interests of Fondomonte, but of all the farmers, ranchers, businesses, and municipalities that rely on groundwater to support life and livelihood,” he said. “If the attorney general’s claim against Fondomonte is successful, resolution of the novel issues presented in this case would, as a practical matter, make it difficult for Arizona Farm and Ranch Group Coalition members to defend their statutory right to pump groundwater in the future.”

Whether Mayes can convince Minder to let her use the nuisance law is unclear.

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 public health and safety.” Mayes contends that is the case, saying Fondomonte’s operation does affect public health and safety.

The bigger hurdle may be that there is no legal precedent in Arizona to Mayes’ claim that the nuisance law applies.

She used that nuisance claim when she went to court two years ago to stop a company’s plan to mine rock and gravel on a 25-acre parcel it owned in a neighborhood in a rural area near Chino Valley.

Mayes received a preliminary injunction, but there never was a final ruling on whether the mine was a nuisance or whether the nuisance law applies: The lawsuit went away after the company abandoned its plan when someone else bought the property.