By Howard Fischer
Capitol Media Services
PHOENIX -- A judge has rejected a request by a company accused of excessive pumping of groundwater in La Paz County to delay the case while state officials conduct a separate study of the entire area.
In a new ruling, Maricopa County Superior Court Judge Scott Minder acknowledged that the lawsuit by Attorney General Kris Mayes against Fondomonte Arizona deals with some of the same issues that now confront the Department of Water Resources.
That is because the agency has designated the entire Ranegras Basin -- where Fondomonte is growing alfalfa to feed dairy cattle in the Middle East -- as an "active management area.'' And, by definition, DWR is now required to determine what regulations to place on groundwater usage.
But Minder pointed out that even if the state imposes new restrictions on pumping, those would be prospective only.
More to the point, theose restrictions could not address efforts by Mayes to get him to order Fondomonte to cut back on existing pumping. And DWR has no authority to order the company to set up funds to compensate surrounding landowners, something the attorney general hopes would be the result of a court order.
The victory for Mayes, however, is only partial.
Minder did say there are reasons to have coordination of sorts between the attorney general's lawsuit and the studies by the Department of Water Resources. So he ordered Mayes and the company to come up with a plan to move the case forward -- but do so in coordination with the work of the state agency.
Mayes, for her part, still called it a victory, saying it "keeps our lawsuit against Fondomonte on track.''
A company spokesman called it "a significant victory for justice."
"The court understood the need to coordinate any action by the Attorney General's Office with the state effort to create an active management area in the basin,'' he said.
In any case, the attorney general still has hurdles to overcome if she is to convince Minder to curtail the company's pumping -- and doing it using a largely untested legal theory.
There is no question but that Fondomonte has been taking advantage of the fact that pumping outside of the state's active management areas is largely unregulated.
In this case, however, the AMA was formed in January -- two years after the lawsuit was filed.
The Department of Water Resources, after conducting preliminary studies, concluded that the amount of groundwater being pumped from the area is resulting in an overdraft. While more studies are necessary -- the agency has two years to come up with a management plan -- Minder said it is his understanding DWR hopes to reduce that overdraft by at least half over the next five decades.
And then there's the fact that, under state law, current pumping is considered "grandfathered'' and not subject to state regulation, meaning nothing DWR orders could do what Mayes wants: curtail Fondomonte's use of groundwater.
So Mayes has been pursuing alternate relief.
She contends what Fondomonte is doing is creating a nuisance for others in the area by draining the groundwater. And that, she argues, entitles Minder to order the company to curb existing pumping and even to compensate those who already have been damaged, all of which Minder said is beyond anything DWR can do.
The big battle to come is whether Mayes can use those nuisance laws against Fondomonte.
She contends that 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. All of that, said the attorney general, fits the classic definition of what is a nuisance.
Working against that, however, is another state law which says that 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, anticipating that argument, did allege in her original lawsuit that Fondomonte's operation is affecting public health and safety.
That, by itself, however, may not be legally sufficient. There is 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.''
So far Minder has not ruled on whether the nuisance law applies here. That has left both sides squabbling in the interim over other legal and procedural issues, including that question of how the designation of the Ranegras Basin as an active management area affects the case.
Minder, in his new order, said while that designation doesn't require setting the case aside -- especially as it could take two years for DWR to implement a management plan -- it makes sense for the work of the agency to play a role in how the lawsuit proceeds.
"This court, admittedly, lacks groundwater analysis and management background,'' he wrote. By contrast, the judge said the agency carries "significant groundwater management expertise.''
There are other arguments to be resolved as the case moves forward.
One is the contention by the company that if there are damages from groundwater pumping in the area, there may be others who are at fault. What that means, their attorney argue, 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.
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