by Alexander Kolodin | Jan 5, 2026 | Opinion
By Alexander Kolodin |
Cuius est solum, eius est usque ad coelum et ad inferos. Also known as the ad coelum doctrine, it means: “Whoever owns the soil owns everything up to the heavens and down to the depths.” This includes gold, silver, oil—or groundwater—that may be below.
In basic property law, the ad coelum doctrine comes with the “right to exclude,” which is the right for landowners to keep, sell, use, protect, and conserve their property—including preventing others from taking it.
Sic utere tuo ut alienum non laedas, also known as the “no harm” principle, means: “Use your own property in such a way that you do not injure the property of another.” This includes groundwater.
Articulated by John Locke in his Second Treatise of Civil Government, the “no harm” principle represents the biblical golden rule: “Do unto others what you would have them do unto you.”
These principles form the foundation of American property law. And in Arizona, they were part of our groundwater code—that is, until 1953, when they were taken away.
Arizonans had property rights to groundwater
According to the Arizona Supreme Court in Davis v. Agua Sierra Resources (2009), Arizona’s common law on groundwater “evolved from the territorial-day view that a landowner has a property interest in groundwater underlying the surface estate.”
Indeed, as Ted Steinberg wrote in Slide Mountain: “Private property in the underground was real all right. At least there were a lot of people in Arizona who believed in it.” According to him, Arizona farmers swore they owned the groundwater beneath their feet, just like the ad coelum doctrine said they did.
In 1904, the Territorial Supreme Court of Arizona affirmed farmers’ beliefs, stating in Howard v. Perrin that “percolating waters are the property of the owner of the soil.”
After statehood, the Arizona Supreme Court upheld the territorial view, stating in Maricopa County Municipal Water Conservation District No. 1 v. Southwest Cotton Co. (1931) that groundwater was “the property of the owner of the land,” subject to the rules of the common law, which included the “no harm” principle and biblical golden rule.
These affirmations confirmed what landowners already knew: that the groundwater was theirs, and they had a right to use it as long as they did not harm the rights of others.
But this framework is very different than the ‘free-for-all’ we have today, which does not recognize private property rights or the golden rule.
What happened? How did we get here?
Arizonans’ property rights were taken away
In the mid-1900s, a dramatic shift occurred. Armon Cheatham, an industrial cotton farmer, sunk eleven wells near Laveen, creating a large cone of depression that dried up thirty-eight other landowners’ wells.
The small landowners had been using their water for modest means, like household use and ranching. Tom Bristor, one of those landowners, sued to protect his private property rights, enforce the ad coelum doctrine, and uphold the golden rule.
But in a sudden reversal of precedent, the Arizona Supreme Court in Bristor v. Cheatham (1953) rejected the territorial view and replaced the golden rule with a new doctrine called “beneficial use.”
This dealt the first blow—eliminating John Locke’s “no harm” principle and opening the door for anyone to pump as much as they wanted, “without limitation and without liability to another owner.”
Twenty-eight years later, the Arizona Supreme Court dealt the final blow, declaring in Town of Chino Valley v. City of Prescott (1981), that “there is no right of ownership of groundwater in Arizona prior to its capture and withdrawal from the common supply,” eliminating the ad coelum doctrine in our state.
Here, small well owners in Chino Valley sued to stop the City of Prescott from taking their water and piping it 17 miles away under the state’s new 1980 Groundwater Management Act.
Although their wells hadn’t gone dry yet, they argued that the city’s scheme (and the state’s new groundwater law) constituted a “taking” that required just compensation, including for future groundwater supplies that hadn’t been pumped but that residents wanted to ensure would be available for future use.
Unfortunately, the Court sided with big government and the city, ruling that the water beneath their property wasn’t theirs until they pumped it—ending the ad coelum doctrine and handing full control over to the government.
This was the final nail in the coffin for private property rights—eliminating the right to exclude and declaring all groundwater a public resource, shared by all but owned by none, preventing anyone from protecting or conserving a discrete supply and leading to the situation we have today.
Ownership of subsurface groundwater should never have been taken away
The judges who decided the 1953 case were all Democrats, and the governor who adopted the 1980 law was Democrat Bruce Babbitt. They broke from our state’s traditional values and sided with corporate industry over small landowners, leaving everyday citizens helpless against the political and financial elite.
Had Arizona’s leaders maintained the traditional values that founded our country, we would not be in the situation we’re in today.
Fortunately, the detrimental effects of these negative decisions can be reversed. We can correct the mistakes of the past and return private property rights back to the people.
Only then can we ensure a fair system that restores what was taken, upholds our founding values, and allows property owners to protect and conserve the groundwater beneath their feet.
Alexander Kolodin serves Legislative District 3 in the Arizona State House and has been practicing election law in Arizona for over a decade. He is currently running to be Arizona’s next Secretary of State.
by Staff Reporter | Nov 25, 2025 | News
By Staff Reporter |
The Arizona Supreme Court held a hearing on Monday to decide whether the city of Phoenix can hide certain public records.
The city is being sued by the Goldwater Institute, a Phoenix-based public policy and litigation organization, over its hiding of records concerning union negotiations.
In Goldwater v. Phoenix, the Goldwater Institute argued the city of Phoenix has a duty to disclose those records in order to allow the public to have an informed decision, and because they serve as the entity negotiating on behalf of the public.
The organization filed their lawsuit in March of 2023 after the Phoenix Law Enforcement Association (PLEA) declined to provide a draft memoranda of understanding (MOU) for public input at the end of 2022. PLEA had provided its MOU drafts in preceding years.
Per the city’s “Meet and Confer” ordinance, unions must submit MOUs by Dec. 1 in the year before the expiration of an operative agreement so that the public may provide input prior to negotiations between the union and city.
Despite not having a draft MOU available for the public to review, the Phoenix City Council moved forward with a meeting to collect public comment on an unsubmitted draft.
The city then began negotiations in January 2023.
The city of Phoenix refused to give PLEA’s draft MOU to the Goldwater Institute upon request, claiming the records were exempt from public records disclosure because public scrutiny would burden negotiations.
The city claimed they were protected under the state’s public records law exemption allowing the withholding of records should they prove detrimental to a government’s best interest.
“Releasing those types of materials would create a chilling effect on the parties’ willingness to candidly engage with each other and it would hinder the negotiations process,” said the city in their denial message.
The city also expressed concerns that public access to MOUs would politicize union negotiations.
Parker Jackson, Goldwater Institute staff attorney, disagreed that these records were covered by the best interests exemption.
“With few exceptions, public records must be made available to the public,” said Jackson in a press release. “When there’s a need to protect things like personal privacy or public safety, the government must be able to show that specific and significant harm is likely to result from public disclosure. It cannot simply withhold information based on self-interested speculation that some minimal inconvenience ‘might’ occur.”
In January, the Arizona Court of Appeals remanded the case to the Arizona Superior Court so that court could privately review unredacted and redacted versions of the contested MOU documents, and determine whether the documents deserved exemption from public disclosure according to the best interests of the state.
The Arizona Supreme Court is considering two issues in this case:
- Did the Court of Appeals err by not requiring the City, after it invoked the “best interests of the state” exception, to establish a probability that specific, material harm will result from disclosure, as Mitchell v. Superior Court requires?
- Did the Court of Appeals err by not applying the Carlson v. Pima County balancing test de novo to independently determine whether the City’s purported interests in nondisclosure outweigh the presumption in favor of disclosure?
The public may watch the archived video of Goldwater v. Phoenix here.
AZ Free News is your #1 source for Arizona news and politics. You can send us news tips using this link.
by AZ Free Enterprise Club | Oct 2, 2025 | Opinion
By the Arizona Free Enterprise Club |
Freedom-loving, car-driving residents of Arizona have long been fighting the constricting “road diets” local government officials, city planners, and corrupt bureaucrats have pushed for years. Proponents of these diets claim that by tearing out perfectly good vehicle lanes, everyone will somehow be safer, healthier, and probably save the planet too.
For those of us who live under the blazing Arizona sun, we recognize this as foolishness. Road diets have not been successful accomplishing any of the goals their proponents claim they will. Instead, the result is that the streets become more congested, you’re spending more time on the road, emergency vehicles have a harder time getting around, and everyone is mad.
Luckily the U.S. Department of Transportation under the leadership of President Trump has promised to stop funding this nonsense. After all, if local city councils are dumb enough to waste money ripping up perfectly good roads, they shouldn’t be able to use everyone else’s tax money to do it.
Of course, unsurprisingly, the residents of those very cities often don’t want their own tax money to go to ripping up the roads they rely upon. One such city is the tiny town of Page, Arizona, where in 2022, the city council approved the “Page Downtown Streetscape Master Plan” which calls for removing vehicle lanes along a 1.4 mile stretch of Lake Powell Boulevard in the heart of the downtown area. In the small northern town, residents stood up against these restrictive, dumb transportation ideas. Page is a community known for its tourism, with visitors bringing boats and heavy gear to explore Lake Powell. For locals, these roads are lifelines for tourism, commerce, and daily living, and Page residents aren’t willing to surrender any more of their precious infrastructure.
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by Ethan Faverino | Sep 24, 2025 | News
By Ethan Faverino |
Arizona House Speaker Steve Montenegro, alongside Senate President Warren Petersen and House Republicans, announced the filing of an amicus brief with the Arizona Supreme Court in the case Republican National Committee v. Fontes.
The brief urges the Court to require Arizona Secretary of State Adrian Fontes to adhere to Arizona’s Administrative Procedures Act (APA) when drafting the Elections Procedures Manual (EPM), a critical set of rules governing the state’s election process.
The APA mandates a transparent public notice and comment period before new rules take effect, ensuring accountability and alignment with Arizona’s election statutes.
The brief, filed in support of the Republican National Committee, the Republican Party of Arizona, LLC, and the Yavapai County Republican Party, argues that the EPM must comply with the APA’s procedural requirements, as neither the APA nor the authorizing statute (A.R.S. § 16-452) explicitly exempts it.
“The integrity of Arizona’s elections is absolutely vital. House Republicans are committed to the rule of law and to ensuring that Secretary Fontes stays within the limits of his authority,” said Speaker Montenegro. “We already convinced a judge to strike down unlawful provisions in the 2023 EPM in our own lawsuit. We fully support this case, which asks only that Secretary Fontes follow long-standing notice and comment requirements when drafting the manual. Arizonans deserve accountability and transparency from every public officer, especially when it comes to election rules.”
The brief emphasizes that Arizona’s comprehensive election laws, which cover voter registration, early ballots, polling places, and vote tabulation, limit the Secretary of State’s authority to draft an EPM.
The APA’s notice and comment process serves as a check, promoting transparency and preventing deviations from legislative intent.
The brief cites the Court of Appeals’ ruling in Republican National Committee v. Fontes, which affirmed that the EPM is subject to the APA’s requirements due to clear statutory language.
The filing highlights two key benefits of APA compliance. First, it reinforces constitutional and statutory limits on the Secretary’s authority, preventing overreach. Second, the public comment process allows for early identification of legal or practical flaws in the EPM drafts, potentially reducing litigation and supporting public confidence in Arizona’s elections.
The brief also notes issues with the 2023 EPM, where provisions added without public input led to legal challenges.
The ongoing litigation, Petersen v. Fontes, further highlights the importance of APA compliance, as it challenges the 2023 EPM’s deviation from state law. The amicus brief, submitted by Montenegro and Petersen in their official capacities, reflects the Arizona Legislature’s commitment to upholding the rule of law and protecting the integrity of the state’s electoral process.
Ethan Faverino is a reporter for AZ Free News. You can send him news tips using this link.
by Matthew Holloway | Sep 14, 2025 | News
By Matthew Holloway |
Attorneys from the Goldwater Institute, representing the Center for Arizona Policy and the Arizona Free Enterprise Club, joined former Arizona Supreme Court Justice Andrew Gould on Thursday to challenge Proposition 211. The measure, called the “Voters’ Right to Know Act,” is being contested on the grounds that it violates the state Constitution’s protections for free speech and privacy.
In the wake of Turning Point USA co-founder Charlie Kirk’s assassination—and a decade marked by attacks on political figures—the security risks of effectively doxxing political donors loom large in the case.
If upheld, the law would force nonprofit groups that weigh in on ballot measures or reference incumbents near an election to publicly disclose their donors—not just names and amounts, but also home addresses and employers—in a searchable database.
In today’s climate of escalating political violence—from death threats and swatting to vandalism, arson, and even assassinations—a database like this could essentially become a “hit list.”
In a press release the Goldwater Institute explained its position stating, “While proponents of the Voters’ Right to Know Act say they’re simply combatting so-called ‘dark money’ in politics, it is clear to Goldwater and its clients — the Center for Arizona Policy, the Arizona Free Enterprise Club, and individual donors — that their real intent is to intimidate their political opponents into silence.”
“Arizona’s Proposition 211 is as un-American as it is dangerous. No one should be exposed to retaliation or violence simply for supporting causes they believe in,” said Jon Riches, Goldwater’s Vice President of Litigation. “The law also violates Arizona’s Constitution, which provides stronger protections for freedom of speech and privacy than even the U.S. Constitution. That’s why we at the Goldwater Institute believe the Arizona Supreme Court will ultimately strike down Proposition 211.”
Arizona Free Enterprise Club President Scot Mussi added, “They’re afraid of the activist organizations out there. They’re afraid of politicians and others that want to exact retaliation because they simply support a position or belief that they disagree.”
Mussi characterized the law as “a dangerous threat to our right to free speech and association.”
“As drafted, the law can be used to unconstitutionally target and harass private citizens, including our organization and our supporters,” Mussi stated. “We are confident that the Supreme Court will recognize the danger this law poses and will rule in our favor.”
In a statement to AZ Free News in May, Mussi elaborated on the potential for political intimidation: “Both the U.S. Constitution and the Arizona Constitution guarantee citizens the right to speak freely, which includes the right to not be forced to speak. Prop 211 not only violates this right for donors by silencing them from supporting causes they believe in but impairs the speech of nonprofits like ours as well.”
Peter Gentala, President of the Center for Arizona Policy, stated in a press release that Proposition 211 “creates an atmosphere of fear among those who support nonprofits that engage in the most pressing issues in Arizona today.”
Matthew Holloway is a senior reporter for AZ Free News. Follow him on X for his latest stories, or email tips to Matthew@azfreenews.com.
