APS Claims Right To Condemn Land For Use In Generating Power: AzJournal.com, Holbrook AZ, 1/26/07

By Tammy Gray-Searles

“APS (Arizona Public Service Co.) has always had the right to condemn Aztec land for use in generating electricity,” attorneys for APS noted in a recently filed court document in the ongoing legal battle between APS and Aztec Land and Cattle Company.

APS officials have asked Navajo County Superior Court Judge Tom Wing to use eminent domain laws to condemn Aztec-owned property on which water wells for the Cholla Power Plant are located. APS has leased the property from Aztec since 1974, but the 35-year lease agreement expires in August, and the companies were unable to reach a new lease agreement.

According to Aztec President Steve Brophy, APS has offered to purchase or trade for the land, but Aztec is not interested in selling, because it plans to use the water supply for future projects on surrounding property. APS officials contend that the water is vital to the operation of Cholla Power Plant and Aztec’s lease price is too high, therefore they are seeking to obtain the property using eminent domain laws.

Aztec filed a motion to dismiss the case shortly after it was filed, arguing that APS did not follow proper legal procedures in filing the case. That motion was denied both by Judge Wing and the Arizona Court of Appeals.

Aztec filed a second motion to dismiss the case Dec. 21, claiming that APS does not have the authority under Arizona state law to condemn property in order to pump groundwater. Aztec argues that the statutes cited by APS as giving it authority to exercise eminent domain do not apply because the statutes do not specifically address groundwater, and limit the use of eminent domain to only the specific purposes listed within the statutes.

In its response to that claim, APS argues that the issue is not about whether APS can use eminent domain laws to pump or condemn groundwater, but whether it can use the laws to ensure its ability to produce electricity.

“This case is not about some abstract, generic question of whether eminent domain can be used ‘to pump groundwater,’ to obtain a well site, or to obtain water rights not essential to some public purpose, all as Aztec seems to argue. It is about the compelling need to use eminent domain to allow the continued generation of critical electrical power, a use the eminent domain statutes recognize is an important public purpose,” the court document stated.

In that same document, APS claims that there is no reason to compensate Aztec for the groundwater. “In short, Aztec does not ‘own’ the groundwater flowing beneath Aztec land; the groundwater is not being condemned; and, there is no compensable interest in this condemnation case for the groundwater,” it states. It later goes on to say, “Groundwater is not the subject of any condemnable or transferable property right. The only property right that exists in groundwater is a right of withdrawal from the overlying land…the Arizona Supreme Court unequivocally held ‘that there is no property right of ownership in groundwater prior to its capture. A landowner whose land overlies groundwater has only the right to use of the water, but maintains no proprietary interest in the actual water’.”

APS also cites the newly passed Proposition 207, approved by voters in November. The proposition became effective on Dec. 4, and according to APS, gives specific authorization of the use of eminent domain for “the use of land for the creation or functioning of utilities.” APS claims, “Proposition 207 is a ‘silver bullet’ that unequivocally confirms APS’ right to proceed in this case.”

A hearing on the motion to dismiss has not been scheduled, but the file will go to Judge Wing on Feb. 7 so that he can review the case and set any necessary hearings. A jury trial is set for July 10.

AzJournal.com, Holbrook AZ: http://www.azjournal.com