By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — Attorneys for a Saudi-owned alfalfa farm want a judge to toss a bid by Attorney General Kris Mayes to halt its pumping of groundwater, saying what she is doing is illegal.

In new filings in Maricopa County Superior Court, the lawyers for Fondomonte Arizona point out that the state is alleging that the company has created a “nuisance” with the amount it is pumping. Mayes’ claim is based on the legal theory that the amount being withdrawn fits that definition by draining the water that others who live in the area need.

But the lawyers are telling Judge Scott Minter that ignores a state law that says agricultural operations conducted with good practices “are presumed to be reasonable and do not constitute a nuisance unless the agricultural operation has a substantial adverse effect on the public health and safety.”
Mayes, in her original lawsuit filed last year, did allege Fondomonte’s operation is affecting public health and safety.

That, by itself, however, may not be legally sufficient. Fondomonte’s attorneys then cite another section of the law which says that agricultural operations that conform of federal, state and local regulations “are presumed to be good agricultural practice and not adversely affecting the public health and safety.”

If that doesn’t work, attorneys for the farm have a laundry list of other arguments they want the judge to consider, ranging from claims others in the basin also are responsible for reducing the groundwater levels to that the state knew about Fondomonte’s actions and acquiesced to them.

This new filing is the latest in what has become a multiyear battle over pumping in the area.

The state previously canceled land leases it had with Fondomonte, which grows alfalfa to feed dairy cattle in the Middle East. It operates in Arizona, at least in part, because Saudi law forbids such water-intensive farming.

But the company continues to farm on other private lands in Arizona.

The outcome of this case — and whether a judge accepts the nuisance theory — could affect whether the state files similar claims against Riverview Dairy, which bought more than 50,000 acres of land to farm near Willcox to grow alfalfa.

What’s behind the lawsuit is a gap in state water laws. The 1980 Groundwater Code created specific “active management areas” where pumping is supposed to be limited. There also are some “irrigation non-expansion areas.”

Everything else, though, is pretty much unregulated. In fact, state law says property owners can withdraw and use groundwater for “reasonable and beneficial use.”

Mayes, in filing suit, is not contesting all that.

Instead, she is using the theory that something otherwise legal can be a nuisance. And she contends data compiled by hydrologists hired by her office can prove the pumping by Fondomonte has dried up nearby wells and resulted in subsidence of the land around Vicksburg in La Paz Cunty.

Mayes also contends the excessive pumping is threatening sediment buildup that reduces water quality and damages appliances, pumps and pipes.
“No company has the right to endanger an entire community’s health and safety for its own gain,” the attorney general said when filing suit.

There really is no legal precedent to Mayes’ claim the nuisance law applies. The closest is when the attorney general had gone to court in a separate fight over 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 did get 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.

Now Mayes hopes to get Minter to accept her legal arguments against Fondomonte, order the company to curtail its pumping and require it to establish a fund to deal with the damages.

To buttress her arguments the nuisance laws apply, the attorney general contends the excessive pumping “is injurious to health” and “indecent” because it interferes with the “comfortable enjoyment of life or property” in a community or neighborhood. Fondomonte’s lawyers, in their response, deny that outright.

To the extent there are damages from pumping, the company has an answer for that. For example, they say any damages were caused or contributed to by the state and its agents, or even other companies or local governments “over which Fondomonte has no control or right of control.” What that means, the attorney argues, is if a court finds there are damages to the state, the amount of any financial award it owes should be reduced — or even eliminated — because of those unspecified acts by others.

The company also is claiming the lawsuit is barred by “the doctrine of unclean hands.”

Generally speaking, that legal theory is that someone who has filed suit cannot seek the help of the courts if that person or entity has done anything unethical in relation to the lawsuit. But the attorneys for Fondomonte, in their response to the lawsuit, provided no specific examples to buttress that claim.
No date has been set for a hearing.