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Cherry v. Steiner

Citation: 14 ELR 20657
No. No. CIV 81-719 PHX, 543 F. Supp. 1270/(D. Ariz., 07/19/1982)

The court holds that the Arizona Groundwater Code (Code), which regulates the use of groundwater by, inter alia, prohibiting increased use in certain areas and encouraging users to convert irrigated land to uses less consumptive of groundwater, causes no taking of private property and otherwise withstands constitutional scrutiny. The court holds that under Arizona law there is no right of ownership in groundwater prior to its capture, and therefore there can be no taking of ownership interests in that groundwater. Further, the court rejects plaintiffs' contention that the Arizona Supreme Court decision establishing the lack of ownership rights was such a radical break from prior law as to constitute a taking in itself. Prior Arizona law was not so clear. At any rate, it is illogical to assert a right of private ownership of groundwater, which may flow under the land of several landowners, and which may not be withdrawn by one landowner without interfering with the ownership rights of the others. The court goes on to reject plaintiffs' allegation that the Code establishes irrebuttable presumptions violative of due process, since the irrebuttable presumption doctrine is probably not viable in the Ninth Circuit and at any rate never applied to legislative decisions regulating the private sector. Plaintiffs' requested inquiry into an allegedly impermissible delegation of legislative authority is prohibited by the enrolled bill doctrine. Finally, the classifications set up in the Code do not violate the Due Process or Equal Protection Clauses; plaintiffs have not met their burden of establishing that the classifications are purely arbistrary and not rationally related to a legitimate legislative purpose. The designation of "active management areas" and the distinctions made between types of water users are sufficiently justified by the state. Defendants' motion for summary judgment is granted.

Counsel for Plaintiffs
Mark Wilmer, Robert Hoffman
Snell & Wilmer
3100 Valley Bank Ctr., Phoenix AZ 85073
(602) 257-7211

Counsel for Defendants
Kathleen Ferris, Chief Counsel
Arizona Department of Water Resources
99 E. Virginia Ave., Phoenix AZ 85004
(602) 255-1507

James W. Johnson
Fennemore, Craig, vonAmmon, Udall & Powers
Suite 1700, 1st Interstate Bank Plaza, 100 W. Washington St., Phoenix AZ 85003
(602) 257-8700