Proposal would punish people for groundwater lawsuits, weaken attorney general's power

As Attorney General Kris Mayes gathers evidence to take action against corporate farms' groundwater pumping, some lawmakers would like to establish protections that discourage such lawsuits.

Agricultural operations could get their legal fees paid by the plaintiff if they are sued in a nuisance action to reduce or take away their water use under a bill filed early this year by state Rep. Austin Smith, R-Wittmann.

The measure would have a "chilling effect" on new approaches to reduce groundwater use, several legal experts told The Arizona Republic, because the claimant would need to pay filing fees and attorney fees for themselves and the sued party.

"What's unusual about the amendment as proposed is that it has nothing to do with the merits of the claim," said Christopher Griffin, director of empirical and policy research at the University of Arizona's College of Law.

"It's penalizing somebody just because they're bringing the lawsuit."

Nuisance lawsuits haven't been used before in Arizona against a farm's water use. But Mayes said such steps are among the tools she's considering in La Paz and Cochise counties, where groundwater pumping has raised concerns among local residents in recent years.

Smith, the bill sponsor, said HB2124 does not prohibit anyone from filing a lawsuit but "alleviates two critical concerns for agriculture."

"When a farmer finds themself having to defend their production with unexpected legal fees they don’t just have resources laying around," he said in a written statement.

"They can only defray those costs by foregoing planned capital improvement projects for irrigation efficiency or other improvements," he said.

The second concern, he said, is that farms with "a very expensive and water-critical crop in the field," would experience "total loss" if a legal action challenged their water use.

The bill is awaiting a final vote in the Senate, where Sen. Sine Kerr, R-Buckeye, added one significant change: An amendment would specifically take away the attorney general's ability to file a nuisance lawsuit in superior court. Only county or city attorneys would hold that power.

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At a meeting in Sunsites in early March, Mayes told Cochise County residents she will act to protect them from "damage that is being caused by mega-farms and excessive groundwater withdrawals."

The target is the Minnesota-based company Riverview LLP, locally known as Coronado Farms. The mega-dairy has been buying land in the area since 2014 and now owns over 50,000 acres and more than 420 wells, one as deep as 2,500 feet deep, according to drilling records obtained by the Republic in 2019.

Farming and drops in groundwater levels have been going on for decades but drilling has accelerated in recent years, according to The Republic's analysis of public records. Wells are also getting deeper.

In the Douglas basin, there was three times more extraction than recharge — for every 1 acre-foot of recharged water, 3 acre-feet were extracted — between 1990 and 2022, according to the Arizona Department of Water Resources. The agency is expected to approve a plan for new groundwater regulations by the end of the year. The Willcox basin, where Riverview also operates, is unregulated.

Dozens of people in the area, including farmers, have seen their wells run dry and were forced to dig deeper or abandon the well.

The attorney general hasn't expressed any intention of targeting other farming operations in Cochise County. But Smith said the amendment is to protect agricultural operations in general.

"I do not engage in the class warfare between 'big and small,'" he said.

"Capital investments in irrigation or other efficiencies have value no matter where they are at on scale. Such investments have value where unnecessary legal fees have little value to the producer (big or small) or to the state."

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Both attempts have no precedent

In Arizona law, a public nuisance is any unreasonable interference with the "comfortable enjoyment of life or property by an entire community or neighborhood, or by a considerable number of persons."

Nuisance lawsuits have been used in Arizona by developers and communities against animal farms. The most recent case against Hickman’s Family Farms in Tonopah was followed by amendments to nuisance law.

Both the intent of the attorney general to use nuisance laws to limit groundwater pumping, and the changes to law suggested by lawmakers have no precedent.

Winning parties sometimes can get their legal costs paid after a lawsuit. An accused party may also win these benefits if the lawsuit is groundless. But this proposal to shift fees only because someone brings a claim forward could interfere with due process, said Griffin, the law professor.

"The system should promote as much access to our courts and justice system as possible," he said. The proposed amendment "is increasing the cost to the plaintiff of just getting into court," and that decreases access.

"That feels like an arbitrary barrier," he added.

The attempt by the attorney general to use nuisance law for this purpose is also "a pretty unusual application of the nuisance doctrine," said Mark Squillace, a professor at the University of Colorado who specializes in water resources law.

Water is deemed a public resource, so the state may have an argument to restrict its use in some ways that violate public interest, he said.

When it comes to water and nuisance claims "it's sort of an untested area of the law."

But nuisance claims can be useful when there aren't any other laws in place, as with Arizona's mostly unregulated groundwater use.

"Nuisance is one of these common-law doctrines. Before there were things like environmental statutes, nuisance doctrine was really what was used," said Kirsten Engel, who is a professor at UA's James E. Rogers College of Law, and a former state legislator who is running for Congress in District 6 this year.

"It's ancient," Engel said. "Statutes have grown since then. But when you don't have a statute kind of on-point, people often go to nuisance action to fill in those gaps."

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Water as 'property of the public'

Water is a resource of public value and interest, but most Western states have abdicated their responsibility to protect it, according to Squillace, who did a regional survey and analysis on the public interest within water law.

"Private parties can obtain the right to use the water. They do not own the water itself, which reverts to the state once the use is completed," Squillace said. It is a common resource and states could allege that certain excessive or unreasonable water uses do not support public interest.

"It is controversial, obviously. Water rights are kind of a sacred institution in the western United States," he added.

"It's going to take states like Arizona to recognize that it's their obligation to protect these public resources." With that premise, Squillace said, some form of regulation ought to follow naturally, and it should probably start at the agencies that issue well and water use permits.

Residents say their property rights are at risk

There was a similar sentiment at the Sunsites town hall called by Mayes in March.

"My belief is the government is there to support the common good," said John Fleischman, a Cochise County resident.

Another attendee and self-described conservative said he believes in property rights, equal protection under the law and "living within my means, not the means my neighbor."

He amused fellow residents by guessing the outcome of taking a pickup load of pecans or a couple of heifers from his neighbors.

"But when they set up next to me and mine water from under my land, and I lose my well, my property value, the enjoyment of my property, and my property right, under the guise of commerce. All of a sudden, that's okay," he followed.

"We have to give our farmers an opportunity to adapt. This will probably take decades, but the status quo is not acceptable."

Late last month, Mayes spoke to another group at a town hall meeting in Wenden, west of Phoenix in La Paz County. She told them she was collecting evidence for a possible lawsuit and listened to concerns that echoed some of those in Sunsites.

Mayes said her team is also considering using "appropriate use" doctrine to protect residents.

Clara Migoya covers agriculture and water issues for The Arizona Republic and azcentral. Send tips or questions to clara.migoya@arizonarepublic.com.

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This article originally appeared on Arizona Republic: Bill punishes people for suing over groundwater, weaken Mayes' power