<div id="RTEContent">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. : (<br> <br> -DJA<br><br><b><i>Art Deco <deco@moscow.com></i></b> wrote:<blockquote class="replbq" style="border-left: 2px solid rgb(16, 16, 255); margin-left: 5px; padding-left: 5px;"> <meta http-equiv="Content-Type" content="text/html; charset=iso-8859-1"> <meta content="MSHTML 6.00.2900.2802" name="GENERATOR"> <style></style> <div><font size="4"><font size="3"></font> <div><font size="3"><img alt="The Arizona Daily Star" src="http://www.azstarnet.com/snimages/star_printtemplate_logo.gif" border="0" height="56" width="306"><br></font></div> <div class="publish">The Arizona Daily Star<br>Published: 12.29.2005</div> <div> </div> <div class="publish"><strong><font size="6">Ruling on water says Arizonans don't have to be good neighbors</font></strong><br>By Howard Fischer<br>CAPITOL MEDI!
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SERVICES</div> <div class="publish"><br>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.<br> <br>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.<br> <br>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.<br> <br>Thursday's decision drew a cautionary note from Judge Jerome Farris who voted with his colleagues to o!
verturn
the lower court ruling in favor of the farmers. But Farris said Arizona law makes no sense.<br> <br>"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.<br> <br>Ernest E. Brady and his wife, Marritta, and James and Flossie Brady, own a pecan orchard which is adjacent to the Abbott plant.<br> <br>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.<br> <br>An acre foot can supply a family with water for a year.<br> <br>The permit required Abbott to store the pumped water in an adjacent pond where it eventually would
percolate back into the ground.<br> <br>But when construction began the company encountered more water than anticipated.<br> <br>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.<br> <br>Abbott ultimately paid a fine of more than $6,500 to the state.<br> <br>All that pumping dropped the water table from 16 feet below ground to 32 feet, the depth of the Abbott basement.<br> <br>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.<br> <br>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 bene!
ficial
enjoyment of the land from which it is taken."<br> <br>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.<br> <br>Tashima said the facts of this case mean Abbott was not liable.<br> <br>"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."</div><noscript><A href="http://banners.tucson.com/RealMedia/ads/click_nx.ads/news.tucson.com/@x31"><IMG src="http://banners.tucson.com/RealMedia/ads/adstream_nx.ads/news.tucson.com/@x31"></A></noscript> <script src="http://www.azstarnet.com/scripts/s_code.!
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type="text/javascript"></script> <noscript><IMG height=1 alt=nada src="http://gpaper202.112.2O7.net/b/ss/gpaper202/1/c4.0" width=1 border=0></noscript><!--/DO NOT REMOVE/--><!-- End SuperStats code version c4.0. --></font></div>_____________________________________________________<br> List services made available by First Step Internet, <br> serving the communities of the Palouse since 1994. <br> http://www.fsr.net <br> mailto:Vision2020@moscow.com<br>ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ<br></blockquote><br></div><p>
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