[Vision2020] 12-29-05 Arizona Daily Star: Ruling on water says Arizonans don't have to be good neighbors

[Donovan Arnold]

It is a sad day for pecans in Arizona. When will  their rights be restored? Write your members of congress and the  Arizona state legislature. : (
  
  -DJA

Art Deco <deco at moscow.com> wrote:                

  The Arizona Daily Star
Published: 12.29.2005
   
  Ruling on water says Arizonans don't   have to be good neighbors
By Howard Fischer
CAPITOL MEDIA   SERVICES
  
PHOENIX  -- A national drug firm doesn't have to compensate the owners of a Casa  Grande farm even though its construction activities ruined their pecan  orchard, a federal appeals court ruled Thursday.
 
In a  unanimous decision, the 9th U.S. Circuit Court of Appeals acknowledged  that Abbott Laboratories drained 60 times more water than they were  supposed to when excavating for a basement for an expansion of their  facility. And the judges said that action dropped the water table so  far that the pecan trees in the adjacent orchard died.
 
But  the judges said state water law, as defined 52 years ago by the Arizona  Supreme Court, gave Abbott permission to pump as much water as it  needed to make use of its property. The fact that it dropped the water  table and killed the trees is irrelevant.
 
Thursday's  decision drew a cautionary note from Judge Jerome Farris who voted with  his colleagues to overturn the lower court ruling in favor of the  farmers. But Farris said Arizona law makes no sense.
 
"Accounting  for the amount of water used, considering the utility of competing  water uses, and acknowledging the rights of adjacent water users seems  especially important in an arid, rapidly growing state like Arizona,"  Farris wrote.
 
Ernest E. Brady and his wife, Marritta, and  James and Flossie Brady, own a pecan orchard which is adjacent to the  Abbott plant.
 
In 1997 the company sought to expand  operations by building a large underground storage structure. Abbott  obtained permission from the state Department of Water Resources to  remove slightly less than 2.1 acre feet of ground water -- more than  684,000 gallons -- from the aquifer beneath the property.
 
An acre foot can supply a family with water for a   year.
 
The  permit required Abbott to store the pumped water in an adjacent pond  where it eventually would percolate back into the ground.
 
But when construction began the company encountered more   water than anticipated.
 
So  without telling the state, it continued to pump water -- ultimately  more than 122 acre feet -- to the point where it spilled over the  holding ponds and was channeled into a ditch that flowed off the  property.
 
Abbott ultimately paid a fine of more than $6,500 to   the state.
 
All that pumping dropped the water table from 16 feet   below ground to 32 feet, the depth of the Abbott basement.
 
The  Bradys sued after the death of their the pecan trees, which were  dependent on groundwater. A trial court ultimately awarded them more  than $618,000 in compensatory damages and an equal amount in punitive  damages.
 
But appellate Judge Wallace Tashima cited a 1953  state Supreme Court ruling which permits landowners to extract  groundwater "so long as it is taken in connection with the beneficial  enjoyment of the land from which it is taken."
 
That ruling  also said adjacent landowners cannot sue even if the water is diverted,  as long as that diversion was for the purpose of using the property.
 
Tashima said the facts of this case mean Abbott was   not liable.
 
"Abbott  withdrew the groundwater for the purpose of expanding its manufacturing  facilities, which was an improvement of the land from which the water  was withdrawn," he wrote. "While some of the groundwater was channeled  off Abbott's property, this is immaterial because Arizona law does not  require that the withdrawn water be 'used,' so long as it is extracted  for the reasonable beneficial use of Abbott's land."
     
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