By Howard Fischer
Capitol Media Services
PHOENIX -- Attorney General Kris Mayes wants to stop a coalition of farmers, ranchers and cities from trying to block her bid to curb pumping of groundwater by a Saudi-owned alfalfa farm in western Arizona.
In a new court filing Tuesday, Mayes said her lawsuit against Fondomonte is about a single company she contends is violating the state's public nuisance law by pumping so much water that it is harming others in the area. She hopes to use that law to limit pumping given her own admission that nothing the company is doing violates other statutes dealing with groundwater.
Fondomonte has denied breaking any laws.
But as the case awaits a trial, others operating under the banner of the Arizona Farm and Ranch Group want to have a say in the case. More to the point, they want to argue that Mayes has no right to sue Fondomonte.
In the new filing Tuesday, Assistant Attorney General Clinten Garrett, writing on behalf of Mayes, said Maricopa County Superior Court Judge Scott Minder should toss their request. He said the outcome of this case will have no legal effect on any of the others to defend the rights of Fondomonte to continue what the state contends is excessive pumping.
"The state alleges that Fondomonte is creating a public nuisance by consuming the majority of the waster-constrained Ranegras Basin's groundwater supply and thereby causing dry wells and land subsidence,'' he told Maricopa County Superior Court Judge Scott Minder.
But Garrett said none of those who want to intercede claim they are operating in the same basin. Instead, the list of those seeking to argue on behalf of Fondomonte -- and claim that there is no legal basis for Mayes' lawsuit -- range from the Arizona Cattle Feeders Association and some private ranches to irrigation districts and the cities of Holbrook, Show Low and Winslow.
More to the point, he said no one on that list admits that they are currently engaging or plan to engage "in similar disproportionate water usage,'' as is alleged against Fondomonte. And that, said Garrett, means they have no legitimate legal interest in the outcome of the case.
What is true, however, is that the state has never used the claim of "legal nuisance'' to go after a farm that otherwise is obeying the water laws that are in effect in its area. In fact, the challengers admit that they fear that if Mayes is successful in going after Fondomonte with this legal theory, it could affect their own ability to defend themselves if the state then files similar claims against them.
Garrett told Minder that fear of possible future action is legally irrelevant and not a basis for the judge to allow them to become part of the case.
And there's something else.
He said that the would-be intervenors claim that what Mayes is trying to do "represents a dangerous expansion of public nuisance law that threatens the rights of all groundwater users in Arizona.'' But that, said Garrett, is not just an overly broad claim with no legal basis but also is based on an assumption, not backed by fact, that every groundwater user has an interest in making sure that Mayes loses her case against Fondomonte.
"Water users who are not causing harm to their surrounding community have every interest in stopping bad actors that are,'' he said.
At the heart of the case is the fact that Arizona has virtually no regulations on groundwater pumping in rural areas. Instead, landowners are presumed to be able to pump as much as they can reasonably use, with no requirements to even monitor how much water they are withdrawing.
Mayes, in her lawsuit, contends that Fondomonte was aware of this lack of regulation when it came to La Paz County "to extract water at an unreasonable and excessive rate'' because it cannot do so in Saudi Arabia, where alfalfa farming is banned. The crop is then shipped back to the home country to feed dairy cattle there.
She says that since Fondomonte arrived in the area in 2014 the groundwater elevation in wells throughout the basis have rapidly declined, which is "threatening the water supply of the people, neighborhoods, and communities within the Ranegras Basis.'' Mayes also said that the declining groundwater table has caused "escalating land subsidence'' in the basin.
And Mayes said even if no laws on water pumping are being violated -- to the extent there even are such regulations in rural areas -- the activities of Fondomonte still fit within the definition of what is a public nuisance.
To make their case, the state will need to prove that what Fondomonte is doing is "injurious to health'' or "an obstruction of the free use of property that interferes with the comfortable enjoyment of life or property by an entire community or neighborhood or by a considerable number of persons.''
But Garrett said all that will be determined based on a single, specific and fact-intensive case. And he said none of that will affect the rights of anyone besides Fondomonte.
He also said there's another reason for Minder to send the would-be intervenors packaing. Garrett said Fondomonte hardly needs their help defending its interests.
"This single alfalfa farm is not the mom-and-pop operation that movants make it out to be,'' he said.
"Rather, Fondomonte is the Arizona subsidiary of a Saudi Arabia conglomerate that earns over $5 billion in annual revenue and has a $14 billion market capitalization,'' he said."The suggestion that a multi-national business operation represented by a prominent local law firm needs reinforcements to litigate this case is not credible.''
No date has been set for a hearing.
—--
On X, Bluesky and Threads: @azcapmedia