Town of Chino Valley v. State Land Dept.
| Citation | 580 P.2d 704,119 Ariz. 243 |
| Decision Date | 26 April 1978 |
| Docket Number | No. 13602,13602 |
| Parties | , 11 ERC 1668 TOWN OF CHINO VALLEY, a Municipal Corporation formed on behalf of itself and its citizens, William J. Wells, Edwin F. Johnson and Everet Brisendine, for and on behalf of themselves and other persons or legal entities constituting a class too numerous to be named as parties, Petitioners, v. The STATE LAND DEPARTMENT, a department of the State of Arizona, Andrew L.Bettwy, State Land Commissioner of the State of Arizona, and CITY OF PRESCOTT,a political subdivision of the State of Arizona, a real party in interest,Respondents. |
| Court | Supreme Court of Arizona |
Bruce E. Babbitt, Former Atty. Gen., John A. LaSota, Jr., Acting Atty. Gen., by Dale Pontius, Phoenix, for respondent State Land Dept.
Chester R. Lockwood, Jr., Acting City Atty., Prescott, Carmichael, McClue, Stephens, Mason & Toles by Martha B. Kaplan and Bill Stephens, Phoenix, for City of Prescott.
Chandler, Tullar, Udall & Redhair by Thomas Chandler and Robert E. Lundquist, Tucson, for amicus curiae Anamax.
Lewis & Roca by Tom Galbraith, Phoenix, for amicus curiae Cyprus Pima Mining Co.
Frederick S. Dean, City Atty. by T. J. Harrison, Asst. City Atty., Tucson, for amicus curiae City of Tucson.
Evans, Kitchel & Jenckes by Burton M. Apker, Phoenix, for amicus curiae ASARCO Inc.
Fennemore, Craig, von Ammon & Udall by Calvin H. Udall and James W. Johnson, Phoenix, for amicus curiae Duval Corp.
The Town of Chino Valley, a municipal corporation, on behalf of itself and its citizens, together with William J. Wells, Edwin F. Johnson and Everet Brisendine on behalf of themselves and others constituting a class filed this petition for a special action against the State Land Department, Andrew Bettwy, the State Land Commissioner, and the City of Prescott to prevent enforcement of the 1977 Amendments to the Groundwater Code of 1948.
Because the issues raised in the petition affect not only the vital interest of petitioners but also those of many other citizens, municipalities and business interests, we accepted jurisdiction of the special action.
The 1977 Amendments to the Groundwater Code (Laws 1977, Chapter 29) occurred after this court's decision in Farmers Investment Company v. Bettwy, 113 Ariz. 520, 558 P.2d 14 (1976). The problem of competing economic and political interests was brought sharply into focus in the foregoing The Legislature accepted this court's suggestion that action be taken, but it quickly became evident that a comprehensive plan for the allocation and distribution of groundwater was a difficult task, charged with controversy. The compromise was an interim solution to deal with immediate and current groundwater uses, and a comprehensive plan to be presented to the Legislature by December 31, 1979 by a special commission. (Laws 1977 Chapter 29 Section 7.)
case. Mining, farming, and municipal interests were engaged in a struggle to satisfy their needs from an ever-decreasing supply of groundwater. This court applied the long-established principles of groundwater to the case, declining to "prefer one economic interest over another on an ad hoc basis," where there was not enough groundwater to satisfy the competing interests. We stated that if one interest was to be preferred over the other, the Legislature was the appropriate body to designate which economic interest would prevail.
The 1977 Amendments to the Groundwater Act, A.R.S. § 45-301, et seq., were prefaced by a statement of legislative intent which provided:
Section 1. Legislative findings: declaration of policy
The Legislature of the State of Arizona finds that strict application of existing law preventing the transfer of groundwater jeopardizes the economy and well-being of the people of this state and prevents certain necessary distribution of Arizona's groundwater resources. The Legislature also finds that in view of the rapid depletion of groundwater in this state it is imperative that a comprehensive long-range plan providing for groundwater management in this state be adopted as soon as possible to assure the reasonable use of groundwater resources in this state and for an equitable and dependable allocation and distribution of such resources to provide maximum benefit for the citizens of Arizona.
Therefore, the Legislature declares that the provisions of this act relating to the transfer of groundwater are immediately necessary for the best interests and welfare of the citizens of this state to maintain the economy of this state, to prevent the loss of jobs, and to provide a dependable water supply for Arizona cities and towns. The Legislature further declares that the provisions of this act are intended to apply only until a comprehensive plan providing for groundwater use, allocation, and distribution is implemented in this state.
Laws 1977 Chapter 29 Section 1.
The 1977 Amendments set up a system by which those persons, who prior to January 1, 1977 had been transferring groundwater from and within a critical groundwater area for a specific reasonable and beneficial purpose within or without the area, could continue such use and transfer if they secured a certificate of exemption from the State Land Department. A.R.S. §§ 45-317.01, 317.05. * Prior to the issuance of a certificate of exemption the State Land Commissioner was required to give notice of the application and hold a hearing. A.R.S. §§ 45-317.05, 317.06. Those dissatisfied with the decision of the Commissioner could appeal to the Superior Court. A.R.S. § 45-317.07. If the transfer of groundwater pursuant to a certificate of exemption injured another's groundwater supply, damages could be recovered but no injunction would be issued by the courts to stop the transfer of the water. A.R.S. §§ 45-317.01(A), (C); 45-317.04.
In December 1977 the respondent City of Prescott filed an application with the State Land Commissioner seeking a certificate of exemption pursuant to A.R.S. § 45-317.05 to continue to transfer water from a critical groundwater area to the area served by the city for domestic and municipal purposes. The petitioners filed this special action asking for relief in a number of areas, but principally that the State Land Commissioner
be enjoined from acting under the authority granted him by the 1977 Amendments. It must be noted that petitioners and the City of Prescott have been involved in litigation over the transfer of groundwater since 1972. Town of Chino Valley v. City of Prescott, No. 28568, Superior Court of Yavapai County.
At the outset we must point out that the Town of Chino Valley may not challenge the constitutionality of the statute on behalf of its citizens. As a creation of the state, the municipality has not been empowered to invoke the personal rights of its citizens against the state. Town of Wickenburg v. State, 115 Ariz. 465, 565 P.2d 1326 (App.1977). See also Williams v. Mayor and City Council of Baltimore, 289 U.S. 36, 53 S.Ct. 431, 77 L.Ed. 1015 (1933).
The petition does not allege any specific interference with a property interest possessed by the Town of Chino Valley. Under the circumstances the town itself is without standing to challenge the constitutionality of the statutes in question; therefore the Town of Chino Valley is dismissed from this special action.
Concerning the allegations of the remaining petitioners that they represent themselves and others of a class, we limit petitioners to representation of their own interests and decline to recognize any class representation. We find nothing in the Rules of Procedure for Special Actions which authorizes class actions.
The petitioners challenge the constitutionality of the 1977 Amendments on a number of grounds, but the principal contentions involve the claim that the amendments violate the separation of powers provision of the state constitution and that the property rights of petitioners are being taken without just compensation.
Petitioners have also urged that the Legislature has unconstitutionally delegated its powers to a commission created under the 1977 Amendments. Laws 1977 Ch. 29 § 7. The provision in question states:
E. The commission shall:
7. By December 31, 1979, prepare a comprehensive final report of commission findings and recommendations for delivery to the governor, the president of the senate and the speaker of the house of representatives. The final report shall contain a draft of recommended constitutional or statutory amendments.
G. If the legislature shall fail to enact a groundwater management code by the first Monday in September, 1981 the code recommended by the commission shall become the law effective on that date without any further authorizing legislation and shall be administered and implemented by the agency designated in the proposed code, or if none is designated, by the department.
Laws 1977 Ch. 29 § 7.
The petitioners contend that this is a blatant violation of Articles III and IV of the state constitution. They point out that the legislative power is vested in the Legislature subject only to the right of the people under the Initiative and Referendum process. The Legislature may not delegate its powers to others. Haggard v. Industrial Commission, 71 Ariz. 91, 223 P.2d 915 (1950); Southern Pacific Company v. Cochise County, 92 Ariz. 395, 377 P.2d 770 (1963); Loftus v. Russell, 69 Ariz. 245, 212 P.2d 91 (1949); Cochise County v. Dandoy, 116 Ariz. 53, 567 P.2d 1182 (1977).
Although the argument presented by petitioners might have considerable merit if we were required to decide that issue, respondents remind us that the consideration of the issue is premature in that it is pure speculation whether the Legislature will fail to act. Respondents contend that we...
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City of Prescott v. Town of Chino Valley
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