U.S. Water News Online
PHOENIX -- A federal appeals court ruling says Arizonans
don't have to be good neighbors when it comes to groundwater.
Landowners harmed by a neighbor's pumping of groundwater can
legally be left high and dry without a right to sue for damages if
the water was used in connection with reasonable use of the
neighbor's own property, the 9th U.S. Circuit Court of Appeals said.
The three-judge panel's ruling overturned a trial court's ruling
in favor of Casa Grande pecan farmers who lost their orchards after
the water table sank dramatically because of pumping by a neighboring
property owner, Abbott Laboratories Inc., a pharmaceutical and
medical products maker headquartered in North Chicago, Ill.
One member of the panel said he agreed with the ruling legally but
said it reflects a legal landscape in Arizona, particularly a
52-year-old Arizona Supreme Court ruling, that doesn't make much
sense in a water-short state.
The farmers, the married couples of Ernest and Marrita Brady and
James and Flossie Brady, had sued Abbott because their trees died
when the aquifer dropped to 32 feet -- below the pecan trees' root
systems -- from 16 feet.
Abbott had received a state permit to remove water so it could
build a storage basement. It promised to both put the pumped water in
onsite retention basins where it could eventually sink into the
aquifer and to report its water removal activity.
The company encountered more water than it expected when it began
digging in late 1997 and ended up removing 122 acre feet of water
rather than the 2 acre feet specified under the state permit.
Because the amount of water pumped filled the basins, much of it
ended up being channeled into a ditch that ran off Abbott's property.
Abbott acknowledged it violated the permit's conditions by
removing so much water and incorrectly reporting its removals. The
company agreed to pay a $6,508 fine to the state.
Separately, after the trees died and the Bradys learned of
Abbott's pumping, they sued on grounds of negligence and nuisance and
were awarded $1.2 million, split between compensatory and punitive
Abbott appealed, contending that the company didn't have a
liability to the farmers as long as the pumping was for reasonable
use of the company's property.
The 9th Circuit panel agreed with Abbott and overturned U.S.
District Judge James A. Teilborg's ruling.
The Arizona Supreme Court ruled in 1953 that use of groundwater in
Arizona is governed by a common-law doctrine under which pumping is
allowed as long as it is a reasonable use of the property, the 9th
Circuit panel noted.
Because the Arizona high court ruled in a 1976 case that a mining
company could not pump water from a farming area for use elsewhere
for mining, it would have been different for Abbott if it was pumping
the water for use off its property, the panel's opinion said.
A Seattle-based judge on the panel wrote separately that the
federal court was bound to follow the state Supreme Court's
interpretation of Arizona laws but that Arizona shouldn't hinge its
reasonable-use doctrine solely on whether use of water benefits the
property from which it is extracted.
"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," Judge Jerome Farris wrote.
Unfortunately for the Bradys, Arizona statutes require groundwater
users to consider the rights of adjacent property owners but don't
create a legal right to sue to protect those rights from unreasonable
interference, added Farris.
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