by Alexander Kolodin | Jan 12, 2026 | Opinion
By Alexander Kolodin |
Across rural Arizona, wells are going dry. Unmitigated groundwater pumping is depleting aquifers and leaving rural communities helpless.
In places like Sunizona and Salome, large industrial users are to blame. As corporate interests come in and drill thousands of feet deep, everyday residents on the surface are left with dwindling supplies.
Meanwhile, in areas like Prescott and Paulden, it is the proliferation of domestic wells that is putting strain on the local aquifers. As new residents move in, they drill faster than nature can keep up, adding hundreds of new wells without considering the impact to existing residents.
Rural groundwater is a “tragedy of the commons”
All of these challenges reflect one simple fact: Arizona’s groundwater basins are limited, subterranean resources with multiple landowners on the surface.
If anyone with a well can access the common supply, then there is nothing stopping people from pumping themselves—or each other—dry. That’s what legal scholars call the “tragedy of the commons.”
Lack of private property rights is the problem
The cause of this tragedy is not the large industrial users or new residents themselves, but rather the legal system that allows new users to come in, drill new wells, and pump more groundwater without having to demonstrate a water right first.
This is not accidental. It is the consequence of the “beneficial use” doctrine discussed in Part 1, which eliminated John Locke’s “no harm” principle and the “right to exclude” others from the groundwater beneath our feet.
As Arizona Justice Duke Cameron explained in his 1976 dissent, beneficial use “encourages wasteful over-consumption and proclaims a right that cannot be protected.”
“Two adjacent landowners may pump each other dry to the detriment of themselves and everyone else,” noting that “access to water is not based on ‘first in time, first in right’ … [but] rather … by a race for consumption controlled … by … the physical ability to extract water from the common supply.”
“To the small or family farmer,” he concluded, “[T]he right to water then becomes a cruel illusion, proclaimed by law, but unobtainable in practice.”
People know something is wrong
Rural residents understand intuitively that the lack of property rights is the cause of this situation, but no one has been willing to articulate their desired solution in clear terms—until now.
When rural residents say things like “we were here first,” “they’re coming into the basin,” and “they’re taking our water,” they are not asking for more bureaucratic regulation or government control; they are calling for prior appropriation.
Under prior appropriation, whoever is there first wins
Qui prior est tempore potior est jure. It means: “First in time, first in right,” and it represents the system of property law used in western states to effectively allocate shares of surface water, like streams and rivers, to landowners based on who was there first.
Under prior appropriation, when a user diverts water first, the user receives a senior right and can force others to cut back in times of need—avoiding the tragedy of the commons in streams and rivers.
When it’s applied to groundwater, senior users can prevent others from drilling new wells if there isn’t enough to go around, thereby protecting existing rights and upholding John Locke’s “no harm” principle.
This is exactly what residents in places like Prescott and Paulden have been asking for.
Arizona had a chance to adopt prior appropriation
Between 1931 and 1969, nearly all western states—including Utah, Colorado, Nevada, Wyoming, and New Mexico—applied prior appropriation to groundwater. But Arizona did not, making it the only state in the broader Colorado River basin that does not recognize priority rights to groundwater.
When the Court was evaluating Bristor v. Cheatham in 1953, it had a chance to adopt prior appropriation, but it chose beneficial use instead, leading to the bifurcated system we have today.
This was the ‘original sin’ of Arizona groundwater law
From this misguided decision, all other groundwater challenges have followed.
From the growth of industrial agriculture in Sunsites and Salome to the proliferation of domestic wells in Prescott and Paudlen, all of Arizona’s most pressing challenges can be traced back to this fateful decision.
Had the Court established prior appropriation, many of these challenges could have been avoided. Residents in Sunizona and Salome could have stopped new industrial operations from coming in, while residents in Prescott and Paulden could have stopped new residential wells from being drilled.
Unfortunately, it’s too late to adopt prior appropriation today. Doing so would require a complete legal overhaul and would likely take years to implement.
And even if it could be implemented, there are very real questions about how it would work, such as whether thousands of well owners could be forced to cut back if a single, shallow well owner went dry. Additionally, prior appropriation is subject to the “use it or lose it” rule, which is not ideal for finite groundwater resources if the goal of adopting a new framework is to promote conservation.
Despite these challenges, some form of private property rights is needed; without them, there is little that rural residents can do to stop the tragedy of the commons from occurring in their basins.
Restoring private property rights is the only way
To truly address the tragedy of the commons, we must recognize it for what it is and explore solutions that are specifically designed to address it.
Ultimately, Arizona will be required to choose between two fundamentally different futures: one ruled by centralized bureaucratic control, or one that restores real, enforceable rights to the groundwater beneath the surface, allowing landowners to protect and conserve their supplies for future generations.
Without such a solution, the right to water will remain nothing more than a cruel illusion, “proclaimed by law, but unobtainable in practice.”
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 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 Matthew Holloway | Jul 19, 2025 | News
By Matthew Holloway |
A quiet battle has been raging over the groundwater of the Hualapai Basin between Arizona State Representative John Gillette (R-LD30) and Mohave County Board of Supervisors Chairman Travis Lingenfelter.
Gillette has alleged that Lingenfelter enjoys the support of Governor Katie Hobbs, and High Ground, LLC., a firm “closely tied to the Walton Family Foundation and Environmental Defense Fund.”
In an email to AZ Free News, Rep. Gillette stated that Lingenfelter “has ‘cozied up’ with Governor Hobbs and High Ground, LLC., not by joining their party, but by aligning on a policy platform that places rural water in the hands of the Governor. He has advocated for several of the leftists’ water bills that trample the rights of property owners.”
The controversy appears to have arisen around the Final Assessment of the Hualapai Basin Water Data Integrity issued by Gillette to fellow legislators and third-party reviewers, which was allegedly made public by Lingenfelter in a May 8, 2025, formal rebuttal.
In his final assessment, Gillette wrote, “After continued research, legislative engagement, and review of both historical and current data, my original 2021 assessment of the Hualapai Basin water situation remains valid. The data presented by the City of Kingman and Mohave County remains suspect, with indications of overstatement used to drive political narratives and policy agendas.”
In the assessment, which Rep. Gillette asserted was reviewed by “three independent scientific and policy bodies prior to publication,” he found:
- The Hualapai Basin has enough groundwater storage to supply the region for 100–300+ years, even under heavy usage.
- Forecast models were based on worst-case pumping assumptions and should not be used to justify alarmist policy actions.
- Recharge estimates, storage volumes, and historical withdrawal rates all point to significant long-term water availability.
- The City of Kingman and Mohave County appear to have overstated risks—possibly to justify control over water rights or block agricultural competitors.
In the formal rebuttal dated May 8th, Lingenfelter addressed Gillette and claimed, “Your letter unfortunately contains a series of flawed assumptions, technical inaccuracies, and mischaracterizations that misinform rather than advance the public dialogue around long-term rural groundwater sustainability in Mohave County.”
He added, “Your letter asserts that data presented by Mohave County and the City of Kingman remains ‘suspect’ and ‘politically compromised.’ Such a characterization is categorically false and impugns the reputations of Mohave County, City of Kingman, and credentialed hydrologists at the ADWR and USGS and the public they serve.”
Responding to Lingenfelter’s rebuke in a formal response on May 16th, Gillette wrote, “While I welcome constructive dialogue, your letter reflects a degree of emotional overreach rather than a calm, scientific response to the concerns raised. Unfortunately, it reveals more about political defensiveness than about data transparency or hydrological best practice.”
Responding to critiques of the assessment’s findings Gillette wrote, “The assessment I authored was reviewed by three independent scientific and policy bodies prior to publication. All concluded that the findings were as accurate as possible given available data. I welcome peer review. What I reject is politically motivated resistance to scrutiny. As further evidence of bias, it should be noted that the ‘comparison document’ you reference—submitted by your team only days after my final assessment—contains several confirmations of my position.”
Rep. Gillette pushed back on Lingenfelter’s assertions based on the MODFLOW-NWT model from the U.S. Geological Survey and its 75,586 adjustable parameters writing, “As any trained analyst knows, such complexity magnifies sensitivity. Even small changes in assumptions—especially politically influenced assumptions—can result in dramatic shifts in outcome. Your confidence in the model would carry more weight if you supported my proposal to recalibrate baseline figures using 15 new field test sites with controlled, non manipulated measurement inputs. This is the kind of ground-truth methodology science demands. Strangely, your rebuttal ignores this recommendation entirely.”
He further strongly criticized the veto of a bill to cap irrigation on an irrigation non-expansion area (INA) by Governor Katie Hobbs, saying the veto “executed without explanation—is further evidence that political goals are outweighing scientific governance.”
AZ Free News reached out to Supervisor Lingenfelter for a comment and received the following reply:
Thank you for reaching out. I am not aware of any dispute or controversy between the Mohave County District 1 Office and Representative Gillette’s Office as you phrase it. As Mohave County Supervisor for District 1, I have served as Mohave County’s lead on water issues for the past five years, and was actively involved in our local water policy advocacy during my prior four years on the Kingman City Council.
My responsibility is to represent the shared, official position of both Mohave County and the City of Kingman, guided by the most accurate and credible data and hydrological modeling available, based on a multi-year, science-based partnership between Mohave County, the City of Kingman, and the United States Geological Survey (USGS)—an independent agency with a long-standing reputation for being the gold standard of scientific water modeling.
The ‘Final Assessment of the Hualapai Basin Water Data Integrity’ issued by Rep. Gillette is his office’s interpretation. The County and City remain firmly grounded and unified in the professional peer-reviewed science and long-term hydrological data and modeling that have guided our efforts to protect rural groundwater and ensure sustainable water use for future generations.
As always, Mohave County, City of Kingman, and USGS look forward to jointly collaborating with all legislators on our water issues on behalf of our rural communities.”
Based upon his team’s findings, Rep. Gillette has announced his intention to pursue “a stand-alone Hualapai Basin bill—developed outside of executive influence—that reflects the data as it exists, not as it is manipulated.”
Editor’s Note: Following the filing of this report, AZ Free News was contacted by Nick Ponder, Senior Vice President of Government Affairs of HighGround Public Affairs. Mr. Ponder provided the ’Analysis of Water Constraints and Economic Growth,’ a report prepared for Mohave County by Rounds Consulting Group, and the formal rebuttal issued on May 8th by Chairman Lingenfelter to Rep. Gillette with the note: “The County, City, and USGS have been very transparent in the processes and data used in determining the water situation in the Hualapai Valley Basin. The letter and the attached analysis should reflect that robust and transparent process.”
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.
by Jonathan Eberle | Jun 4, 2025 | News
By Jonathan Eberle |
Governor Katie Hobbs has vetoed Senate Bill 1300, a Republican-backed measure that would have allowed residents of southeastern Arizona’s San Simon Valley sub-basin to vote on whether to establish an Irrigation Non-expansion Area (INA) — a designation intended to temporarily halt the expansion of agricultural groundwater use.
Supporters of the bill, including Representative Gail Griffin (R-LD19), argued the measure would have empowered local voters in Graham and Cochise counties to take the lead on managing their own groundwater resources in the face of ongoing depletion. The bill passed the Republican-controlled legislature earlier this session.
SB 1300 would have permitted county supervisors to place an INA designation question on the November 2026 ballot. Once that vote was scheduled, a temporary moratorium on new irrigation would have taken effect to prevent last-minute expansion and groundwater pumping ahead of the election. If voters approved the INA, the moratorium would have become permanent.
Griffin called the veto “a missed opportunity,” saying the temporary pause alone would have been a benefit to the aquifer. “Whether voted up or down, either outcome would have resulted in at least a six-month pause on new agricultural expansion,” she said in a statement.
Republican lawmakers have repeatedly pushed back on the AMA designation, arguing that it imposes regulations more appropriate for urban areas like Phoenix and Tucson and fails to account for the economic realities of rural Arizona.
Griffin and other Republicans argue these proposals disregard the will of local communities. “What the Governor wants in rural Arizona is to adopt regulations that are more stringent than urban areas,” Griffin said. “These extreme expectations are simply not achievable for rural Arizona.”
While the Governor’s office has framed her groundwater proposals as necessary responses to decades of overuse and aquifer decline, Republican legislators insist they are advancing more flexible, community-driven solutions. These include efforts to promote stormwater recharge and local decision-making to stabilize groundwater levels without heavy-handed mandates.
No immediate alternative to SB 1300 has been announced, but Republican leaders say they plan to continue engaging with stakeholders on rural water policy. “We stand by our rural communities and the principles of local control, property rights, and strong local economies,” Griffin said.
Water experts and advocacy groups are closely watching the legislative standoff as Arizona grapples with worsening drought conditions, declining aquifers, and in and intensifying debate over how best to balance agriculture, conservation, and rural livelihoods.
Jonathan Eberle is a reporter for AZ Free News. You can send him news tips using this link.
by Jonathan Eberle | May 23, 2025 | News
By Jonathan Eberle |
Arizona Governor Katie Hobbs has vetoed legislation that would have allowed residents in voter-established Active Management Areas (AMAs), including the newly created Douglas AMA, to revisit their groundwater management designation after ten years.
The bill, HB 2089, was sponsored by Representative Gail Griffin (R–LD19), who argued that the measure was about preserving local control and ensuring that rural communities retain a voice in long-term water policy decisions.
“This bill simply would have allowed voters to revisit a decision they made ten years earlier. It respected the voice of the people — not silenced it,” Griffin said in a statement responding to the veto. “The Governor’s action undermines the ability of rural communities to self-govern and respond to future conditions.”
Under current Arizona law, AMAs are designated areas where groundwater is heavily regulated in an effort to manage overdraft and promote sustainable use. The Douglas AMA was approved by voters in 2022 in response to growing concerns over aquifer depletion in southeastern Arizona. The law established that AMA did not include an option for voters to re-evaluate the decision in the future — a gap HB 2089 sought to address.
Rep. Griffin and other rural lawmakers have expressed concern over what they describe as heavy-handed regulation from Phoenix that may not reflect the economic realities of agricultural communities. In a press release, the Arizona House Republican Caucus also criticized the Governor’s broader approach to groundwater management, particularly in the Willcox Basin, where the administration is reportedly pursuing a 50% reduction in groundwater overdraft by 2075.
The veto is the latest flashpoint in an ongoing debate between state leadership and rural lawmakers over how best to balance groundwater conservation with agricultural and economic needs. It remains unclear whether supporters of the measure will seek to reintroduce similar legislation in future sessions.
Jonathan Eberle is a reporter for AZ Free News. You can send him news tips using this link.
