Attempt to overturn Douglas Basin groundwater protections invalidated.
While this effort to overturn the voter-approved AMA is over, the future likely holds further challenges-- and the landscape is still ugly and divided.
According to Cochise County Elections Director Bob Bartelsmeyer, the county will not be holding an election this November on whether to repeal the previously-voter-approved Douglas groundwater active management area.
This determination, Bartelsmeyer told Cochise Regional News, came on the heels of the Cochise County Attorney’s Office (CCAO) review of a lawsuit filed against the county on July 18 by the Environmental Defense Action Fund (EDF), along with a number of local plaintiffs.
The EDF complaint challenged the initiative seeking to repeal the Douglas Active Management Area on several fronts, pertaining to both the campaign's signature gathering practices, as well as the underlying legal framework of the initiative.
According to Bartelsmeyer, CCAO reviewed the EDF complaint, found that portions of it had merit, and advised the Elections Department not to proceed with an election on the initiative.
Background of an extremely contentious issue
The Douglas AMA (DAMA) was approved by the majority Douglas Groundwater Basin voters in November of 2022 through ballot Proposition 422— which marked the first time in Arizona history that local voters enacted local groundwater protections.
Prop. 422 was initiated by local residents concerned with the rapid expansion of industrial agriculture, much of which is based out-of-state, and attendant groundwater consumption in the Douglas Basin. The measure was staunchly opposed by industrial-scale agriculture operating in the area, outside investors, and the well drilling industry.
Prop. 422 converted the existing Douglas Irrigation Non-Expansion Area (INA) into an active management area (AMA). Both the former INA and current AMA are under the purview of the Arizona Department of Water Resources (ADWR). The resultant active management area covers the entire groundwater basin, where the previous INA had only covered a portion of the basin (and had much weaker groundwater protections). The basin and voter-approved DAMA extends, roughly, from the intersection of Highways 191 and 181 north of Elfrida, south to the U.S. Mexico border, encompassing the towns of Elfrida, McNeal, Douglas, and portions of Bisbee.
Though the voter-initiated DAMA is still in stages of shareholder input and public hearings, as required by law, to craft its groundwater management goals and plans, in May 2023 a campaign calling itself "Save Our Water" formed and filed paperwork to gather petition signatures for a new voter initiative which would "de-establish" the voter-approved Douglas AMA and revert the area back to the previous INA. "Save Our Water's" leader, Ann Waters, is a basin resident who lost irrigation rights she had never used under the INA when the AMA was approved. Waters said this hurt her property value.
On July 6 and 7, the "Save Our Water" campaign turned its petition signatures in to the Cochise County Elections Department. On July 13, Cochise County Recorder David Stevens certified that the campaign had returned a sufficient number of signatures to place the DAMA repeal initiative on the ballot in November of this year.
Environmental Defense Fund
Following CCAO's determination that the "Save Our Water" initiative could not proceed to the ballot, Bartelsmeyer sent a letter to "Save Our Water" chair and treasurer, Ann Waters.
"Dear Ann, as you are aware, the County was named as a nominal defendant in a lawsuit brought by Environmental Defense Action Fund and other plaintiffs to enjoin the County from placing the Save Our Water Committee's initiative on the next general election ballot," wrote Bartelsmeyer. "The County has reviewed the allegation regarding A.R.S. Section 19-121(B) in the Special Action Complaint and we believe that it has merit. As a result, the County will not be able to place the Committee's Initiative on the ballot for the next general election."
ARS 19-121(B) states, in a nutshell, that petition signature sheets for a voter initiative are to be turned in all at once, at which time a receipt for the signatures submitted will be given to the campaign. The law goes on to state: "after issuance of the receipt, no additional petitions may be accepted for filing."
Yet, as noted in the EDF complaint, this is not what occurred.
CRN review of "Save Our Water's" petition signature sheets, receipts, and subsequent signature certification records, show that at 3:15 on the afternoon of July 6, Waters delivered 52 petition sheets, containing 634 signatures, to the Cochise County Elections Department. Elections Director Bartelsmeyer then issued a receipt to Waters.
At 11:50 the following morning, another group of individuals working with the "Save Our Water" campaign delivered a further set, of 123 petition signature sheets (totaling 1,483 signatures), to Bartelsmeyer. Records show the Elections Director accepted this second batch of signatures and issued a second receipt.
Bartelsmeyer and Stevens then went through the process of validating and certifying the signatures.
Stevens told CRN at the time of his July 13 certification of the "Save Our Water" signatures that he had worked closely with CCAO concerning various aspects of the initiative, though he declined to tell CRN what guidance CCAO had issued regarding the process. CCAO did not respond to requests for comment made at that time. As such, it is unclear whether Stevens, Bartelsmeyer, or CCAO were aware of the fact that-- under the law-- the only records they could have legally accepted and certified were those contained in the initial batch delivered to them on July 6. This would have amounted to 634 signatures, at most, and would have fallen well short of the 1,310 signatures required for the initiative to be placed on the ballot.
The EDF complaint was filed on July 18, and listed Stevens, Bartelsmeyer, and county supervisors Ann English, Peggy Judd, and Tom Crosby as defendants. The "Save Our Water" campaign was listed as an interested party.
The complaint was filed by Tempe law firm Barton Mendez Soto, PLLC on behalf of plaintiffs Ash Dahlke, Michael Gregory, Alice Hamers, and the Environmental Defense Action Fund.
Dahlke, Gregory, and Hamers are all Douglas AMA residents and activists who promoted Prop. 422.
Dahlke served as chair of the Arizona Water Defenders political action committee, which originated Prop. 422.
Arizona Water Defenders disbanded, both as a PAC and an advocacy group, following the November 2022 election.
The Environmental Defense Action Fund is the legal arm of environmental non-profit Environmental Defense Fund, which is based in New York, New York, with branches throughout the country.
During the final months of the 2022 election cycle, Prop. 422 and its sister Prop. 420 (which unsuccessfully sought to create an AMA in the Willcox Basin, just north of the Douglas Basin), drew heavy criticism from AMA opponents when EDF began blanketing the area with mailers and other media in support of the AMA initiatives.
Opponents of the proposed AMAs, some of whom had themselves received substantial funding from industrial agriculture, outside investors, and well drilling companies, seized on EDF's apparent involvement as a way of painting the entire AMA effort as an 'astroturf' outside-radical-environmentalist plot.
For its part, Rural Water Assurance, the primary campaign opposing Props. 422 and 420, spent more than $61,000 in its effort to sway area voters through the services of Tucson-based public relations firm, NuPoint. Campaign finance reports filed by Rural Water Assurance show that the group derived the majority of its funding from industrial-scale growers (including some based out-of-state), outside investment groups, and well drilling companies. The campaign's treasurer, Sonya Gasho, served concurrently as head of the Cochise County branch of the influential lobby group, the Arizona Farm Bureau.
To this day, "Save Our Water" initiative campaign chair Waters has advanced a narrative of an outside environmentalist and/or "globalist" "agenda" in her effort to turn local voters against the Douglas AMA.
While Arizona Water Defenders and the propositions they advanced started as an entirely local grassroots effort, and campaign finance reports filed by the group list no contributions from EDF, Dahlke seemed to dodge inquiries from CRN regarding EDF's involvement, if any, with the Prop. 422 and 420 campaigns.
"EDF, the Audubon Society, the Sierra Club, the Water for Arizona Coalition, and the Nature Conservancy have a long history of advocating for water conservation," said Dahlke. "I think the better question is, why don't the out-of-state agribusinesses support the AMA. And we know it's because an AMA provides stronger management of groundwater supplies than the INA did, and it applies not just to irrigation but also to industrial and municipal uses. The AMA is more thorough and has a greater chance of helping us slow the depletion of the groundwater."
[Full disclosure: I volunteered my time and efforts as Arizona Water Defenders' campaign manager and spokesman through the course of 2021. I can say that there was no involvement of any outside group, including EDF, during the inception or first year of this campaign.]
Given this history and all that is at stake, the decision of these local plaintiffs to team up with EDF in their challenge to the "Save Our Water" initiative may have been risky, should the "Save Our Water" campaign regroup and take another, more successful, run at repealing or undermining the Douglas AMA.
Setting potential political fallout aside, the EDF complaint did correctly point out the violation of ARS 19-121(B) which ended this attempt to repeal the voter-approved groundwater protections in the Douglas Basin.
The EDF complaint also delved into some deeper legal waters.
Where “Save Our Water’s”petition circulation efforts were concerned, the EDF complaint asserted that all signatures returned to the Cochise County Elections Department by "Save Our Water" were invalid, as petition circulators should have certified that they were eligible voters residing within the confines of the area affected by the proposed initiative, the Douglas AMA.
Statute (ARS 45-415) clearly states that Prop. 422 was a matter that only Douglas Basin residents could vote on, and it was apparently inferred by Cochise County Recorder Stevens that a vote on the repeal of the Douglas AMA would also be put to voters residing within the basin. Nevertheless, statute is silent or unclear, as to who can actually circulate the petitions in this kind of groundwater-basin-wide local initiative petition.
EDF's interpretation of the law, as articulated in their complaint, was that only circulators who certified that they were eligible voters residing the area affected by the proposed initiative (i.e. the Douglas Basin) could circulate petitions.
According to the EDF complaint, "Save Our Water" petition circulators certified that they were qualified voters residing within Cochise County, not the Douglas Basin.
CRN inspection of the petition signature sheets returned to the Elections Department by the campaign showed that most of the petition circulators did not affirm that they resided within the Douglas Basin, per se; instead they certified that they resided within Cochise County, though most of the addresses given by these petition circulators in their certifications were within the confines of the Douglas Basin. Ultimately, it is not clear how a judge would have ruled on this, had the litigation played out.
Despite the tenuous nature of this argument, there may have been other more serious issues for the "Save Our Water" campaign, had a judge ruled that all petition circulators needed to reside within the Douglas AMA: two of the campaign's most productive signature gatherers listed addresses for themselves outside of the basin.
One petition circulator, responsible for at least 20 of the campaign's 175 petition signature sheets, gave two different addresses in her certifications: one in Sun Lakes, Arizona (Maricopa County), and one in Sierra Vista (Cochise County, outside of the Douglas AMA).
The "Save Our Water" campaign also used a paid petition circulator. Campaign Chair Ann Waters told CRN that this paid circulator was sent to help gather signatures at the behest of an "employer" who paid the circulator's "salary." Waters declined to identify who the paid circulator's employer was.
According to the "Save Our Water" petition signature sheets, the paid circulator was responsible for at least 32 of the campaign's 175 petition signature sheets. On her signature sheets, the paid circulator certified that she was a qualified voter residing in Willcox. Willcox is in Cochise County, but it is not within the Douglas AMA.
The EDF complaint also alleged the "Save Our Water" petition signature sheets contained wide variation of the initiative description. Under Arizona law, initiative petitions must contain the text of the proposed voter initiative, so that voters may clearly understand what it is they are signing. According to the EDF complaint, "every petition circulated by [Save Our Water] contained a different, albeit more complete" version of the initiative's actual text.
Further, EDF alleged that the summary of the "Save Our Water" initiative printed on petitions was deceptive, in that the petition claimed to have legal authority to overthrow the results of a previous voter-approved ballot initiative, when, in fact, it did not:
"The summary states that the measure will have the effect of repealing Proposition 422. A proposition is not subject to repeal. There is no authority for one proposition to repeal another, nor is there any authority to 'de-establish' an AMA by way of local initiative."
These argument made by EDF echo those of other legal experts who commented on the "Save Our Water" initiative in previous CRN reporting.
In its complaint, EDF argued that there is a legal process through which "Save Our Water" could have sought to convert the Douglas AMA into an INA (per the campaign's stated intent), but that the campaign did not follow this process.
Christian Sawyer
Though the EDF complaint against the "Save Our Water" initiative was the one that successfully shut down this attempt at repealing Douglas Basin groundwater protections, it was not the only complaint lobbed at the "Save Our Water" effort.
Another civil complaint was filed early on the morning of July 20 in Cochise County Superior Court by Christian Sawyer. In his complaint, Sawyer described himself as "a rural resident in the Douglas AMA."
Sawyer told CRN he had no legal counsel and was not coordinating with any individuals or groups in his challenge to the "Save Our Water" initiative.
"I can’t afford a lawyer, so we’ll see if my rookie law skills amount to anything," said Sawyer at the time of his complaint's filing.
Sawyer is well known locally to those who have followed the turmoil surrounding the Douglas Basin's groundwater crisis as an advocate for groundwater protections. He told CRN that he has never believed the AMA to be the perfect solution for the area's water woes, but that he does believe it "can provide a viable path toward groundwater sustainability and the cultural preservation of the area’s family farming." Sawyer also said he wanted to save everyone the trouble of campaigning for an initiative that ultimately had no legal basis.
Sawyer's complaint challenged the "Save Our Water" initiative on the grounds that he believed the initiative to be legally invalid. As such, he sought to enjoin Recorder Stevens from printing the ballots for the initiative.
In support of his claim of legal invalidity, Sawyer cited Arizona law, Arizona Revised Statutes (ARS) section 19-102(A), which prescribes the form and function of petitions seeking to enact laws or constitutional amendments. According to Sawyer, the issue was that the "Save Our Water" initiative is invalid, as the initiative does not seek to create a law or constitutional amendment.
Now that the "Save Our Water" initiative is dead, this question will not be ruled on by a judge, though it is worth noting that the initiative petition was issued pursuant to ARS 19-111, which provides for statewide initiative petitions proposing "a law or constitutional amendment by initiative petition or to file a referendum petition against a measure, item, section or part of a measure."
The "Save Our Water" initiative language, which was just as unpolished as Sawyer's pro se challenge, simply stated that it wanted to "de-establish" the voter-approved Douglas AMA and revert the Douglas INA "exactly as it previously existed." The initiative's leader, Ann Waters, is a basin resident who lost irrigation rights she had never used under the INA when the AMA was approved. Waters said this hurt her property value.
It is unclear whether the "Save Our Water" initiative seeking to recall Prop. 422 met the statutory language pertaining to a "referendum petition against a measure, item, section or part of a measure," though many have argued that the initiative lacked any legal basis to support its stated goal.
Lingering legal ambiguity and potential future challenges
According to Cochise County Recorder Stevens, Arizona statute is "silent" on many of the issues raised by the challenges against the "Save Our Water" initiative. For example, said Stevens, many of the state's statutes relating to initiatives and petition circulation only lay out clear guidelines for statewide initiatives, not county-wide initiatives-- or even more arcane groundwater-basin-wide initiatives.
Stevens said he is tired of the chaos and lawsuits his office has had to deal with stemming from this perceived lack of statutory clarity. As such, Stevens, a former Arizona lawmaker, said he may draft a piece of legislation intended to address some of these issues in the future. If he were to draft such a piece of legislation, said Stevens, he would attempt to find a sponsor among his lawmaker connections, for introduction in the Arizona Legislature.
While it is true that Arizona statutes pertaining to these initiative matters are riddled with gaps and confusing vagaries, any attempt on the part of Stevens to alter Arizona elections or ballot initiative law may make some nervous. Stevens has attracted controversy in the past through his close ties to 2020 elections deniers. He is close friends with former Arizona State Senator Mark Finchem, who unsuccessfully ran for the office of Arizona Secretary of State in 2022. Finchem's candidacy was largely defined by false claims concerning the 2020 presidential election.
According to tax records, Stevens serves as a director of the Election Fairness Institute, which is chaired by Finchem. The most recent tax records available for the organization, filed for 2021, shows that other directors of the Campaign Fairness Institute included current Senate Majority Leader Sonny Borrelli.
Stevens told CRN that there are no longer any current lawmakers serving on the board of the Election Fairness Institute.
Review of publicly available information regarding Election Fairness Institute's current leadership shows Cochise County Recorder Stevens and Mark Finchem sharing leadership functions with activist Heather Hobbs. Hobbs, according to her Linkedin profile, is a "field coordinator" for the John Birch Society. The John Birch Society is a far-right conspiracy-minded group, long at the fringes of the American political landscape, which once accused President Dwight Eisenhower (a staunchly anti-communist Republican) of being an operative in a vast communist conspiracy.
In any event, Stevens said he currently does not have a clear idea of exactly which provisions of Arizona law pertaining to initiatives he may seek to alter, or what chances his legislation would have at success. At this point, he said, his broad goal is to seek statutory clarity on how initiatives are handled at the county level. Stevens did tell CRN, however, that he has no intention to seek legislation altering provisions of Arizona Groundwater Code pertaining to voter initiation of groundwater protections.
According to Stevens, should Waters' "Save Our Water" campaign seek to place their Douglas AMA repeal initiative on the ballot for November of 2024, they may re-apply with the Cochise County Elections Department for a new petition-- after which point, they would have until July of 2024 to gather new petition signatures.
Waters did not respond to requests for comment.
Dahlke did not respond to requests for comment on the EDF complaint. Co-plaintiffs Gregory and Hamers declined to comment.
[Full disclosure: I volunteered my time in support of Prop. 422 during the 2022 election cycle.]