ALJDEC decisions subject to certification as final

24A-INA01-DWR · Department of Water Resources · 2024-11-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Arizona Department of Water Resources' Denial of the Application filed by Gary W. Black and James A. Black, Trustee for the James A. Black Family Trust, for an Irrigation Authority within the Huapalpai Valley INA, Application No. 79-000031.0000

No. 24A-INA01-DWR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 23, 2024 with the record held open until November 8, 2024, for the parties to submit written closing arguments.

APPEARANCES: Appellant Gary W, .Black was represented by Timothy A. La Sota. The Arizona Department of Water was represented by Assistant Attorneys General Anthony C. Proano and Sara Leopold.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE: Arizona Department of Water’s Exhibits 1-31 an Appellant’s Exhibits 1, 3, 4, and 5 were admitted into evidence.

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FINDINGS OF FACT

On September 8, 2022, the Arizona Department of Water Resources (ADWR) issued a Notice of Public Meeting in which it informed interested parties of its intent “to initiate procedures to designate the Hualapai Velley Groundwater Basin as a subsequent irrigation Non-Expansion Area (INA).

On October 12, 2022 and October 19, 2022, ADWR published a Notice of Initiation of Designation Procedures/Notice of Public Hearing, announcing that “[a] hearing will be held at the Mohave County Administration Building” where ADWR “will present factual data in its possession in support of or in opposition to the Proposed INA and receive comments and evidence as to whether the Director should designate the Proposed INA” on as required by A.R.S. § 45-435(B). ADWR also mailed this notice to all property owners within the designated area.

On or about November 18, 2022, Gary W. Black and James A. Black each submitted e-mail comments to ADWR opposing the designation of the INA.

On or about December 19, 2022, ADWR’s Direction issued its Findings, Decision, and Order, as follows:

In consideration of the Findings set forth above, the Director has determined that the Hualapai Valley Groundwater Basin, as described in Findings #1 above and depicted in the map attached hereto as Exhibit A, meets the criteria for designation of a subsequent INA set forth in A.R.S. § 45-432(A). As a result, the Hualapai Valley Groundwater Basin SHALL be designated as an INA.

ADWR then issued a Notice of Finding, Decision and Order, published and e-mailed the same to the various stakeholders.

On or about December 7, 2023, the Blacks applied for Irrigation Authority for their land.

On or about April 19, 2024, ADWR informed the Blacks that their application had been denied. The letter provided in pertinent part:

...The Department found that the pertinent criteria were not met as the land had not been irrigated during the five years preceding the date of the Department’s Notice of Initiation of Designation Procedures (October 12, 2022). Additionally, the land was not found to qualify for substantial capital investment for irrigation use, in accordance with A.R.S. § 45-437(B).

The work submitted to qualify for SCI was not accepted, because it was conducted in May 2023. The acceptable time period for qualifying SCI was October 12, 2017 – October 12th, 2022. Additionally, no historic irrigation was conducted within the above-mentioned timespan....

On May 21, 2024, Gary W. Black submitted a Notice of Appeal challenging the denial.

On or about June 19, 2024, ADWR issued a Notice of Hearing in this matter on July 19, 2024, at the Office of Administrative Hearings, an independent state agency. The Notice of Hearing stated the issue for the hearing as follows:

Whether Gary W. Black and the James A. Black Family Trust are entitled to an Irrigation Authority for lands within the Hualapai Valley INA pursuant to A.R.S. § 45-437(B) for the following reasons asserted in the Notice of Appeal of Agency Action: (A) the purchase of the subject land in 1978, (B) the payment of property taxes on the land, and (C) Mr. Gary W. Black’s study of pomology at California Polytechnic State University for two years in the late 1970’s.

After a continuance, the hearing was held on September 23, 2024.

At hearing ADWR presented the testimony of Natalie Mast, the Active Management Area Manager for ADWR.

Ms. Mast testified as to the above timeline as well as the general process for designation of an INA.

Ms. Mast testified also as to the Black’s application for Irrigation Authority. She testified that the application listed “zero acres” irrigated from October 12, 2017 through October 12, 2022.

Further, as to the issue of if a substantial capital investment (SCI) had occurred, Ms. Mast testified that there had been no visual evidence, nor other evidence of land clearing or visible evidence of irrigation or driplines on the property.

Ms. Mast testified however, that while there were two wells drilled on the property, this was not accomplished until May 2023, which was outside of the five years. In addition, Ms. Mast noted that the authorizations for the wells were not submitted until April 2023,

In addition, Ms. Mast reviewed Mr. Black’s Notice of Appeal and testified that there were no claims of historical irrigation or SCI.

Finally, Ms. Mast testified that there was no information to conclude that Mr. Black’s college education in the 1970’s would count as a SCI, nor was there a premium paid for the property to qualify for a SCI.

Mr. Black testified on his own behalf as his brother had passed away. Mr. Black testified that he and his brother had purchased the land back in the 1970’s and that he never really had the time to do anything with the land.

Mr. Black testified that there were 160 acres in total, and that he had paid all of the required property taxes on the same, and that he paid $2,500.00 in property taxes over the past five years.

Further, Mr. Black testified that while the drills had been paid for and installed in May 2023, he had started working on the same approximately two years prior to the commencement of the work.

Mr. Black testified that he was unaware as to how the INA came about, and prior to receiving the Notice from ADWR, he had not heard of any water restrictions.

In addition, Mr. Black testified that once he became aware, he attended the meeting and voiced his objections to the INA.

As to his education, Mr. Black testified that he went to California Polytechnic State University in the 1970’s but did not recall how much he paid in tuition, only that he moved in with a relative to qualify for a lower in-state tuition rate. Mr. Black testified that he studied Palmology (study of fruit and nut trees), but he never completed his degree and went to Las Vegas, where he currently resides. Mr. Black testified that he ultimately became a now retired real estate broker.

Mr. Black also testified that while he applied for a “domestic well”, he did so because the contractor or his assistant informed him he could not select an “agricultural well”.

Finally, Mr. Black testified further that based on his experience in real estate, if land does not have water, it would be valued less than a parcel with irrigation. However, Mr. Black testified that he has never thought about selling the land.

CONCLUSIONS OF LAW

Appellants bear the burden to show that the Denial was issued in error or is contrary to law. See A.A.C. R2-19-119(B).

The standard of proof on all issues in this matter is that of a preponderance of the evidence. A.A.C. R2-19-119(A).

A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.” Black’s Law Dictionary 1301 (9th ed. 2009).

A.R.S. § 45-437(B) states:

In a subsequent irrigation non-expansion area established pursuant to section 45-432, except as provided in subsection E of this section, only acres of land which were irrigated at any time during the five years preceding the date of the notice of the initiation of designation procedures may be irrigated with groundwater, effluent, diffused water on the surface or surface water, except as provided in sections 45-172, 45-437.01, 45-437.02 and 45-437.03, and except that this does not prohibit irrigation with surface water used pursuant to decreed or appropriative rights established before the date of the notice. Land which was not irrigated at any time during this five year period is deemed to have been in irrigation if the director finds that substantial capital investment has been made for the subjugation of such land for an irrigation use including on-site irrigation distribution facilities and a well or wells the drilling and construction of which were substantially commenced before the date of the notice of the initiation of designation procedures.

Mr. Black has not demonstrated by a preponderance of the evidence that the April 19, 2024, Denial was in error or contrary to law. First, there was no contravening evidence from Mr. Black demonstrating that the land was irrigated from October 12, 2017 through October 12, 2022. Second, as to the SCI, Mr. Black likewise has failed to prove the same. The tribunal does not find that Mr. Black’s education in the 1970’s would be classified as a SCI, as one, it was wholly outside of the five-year timeline, but also there was no evidence as to what he paid, rather the testimony was that there was some reduction of tuition due to in-state enrollment. Likewise, by Mr. Black simply paying $2,500.00 in property taxes over the past five years, certainly cannot be considered “substantial”, nor an investment, as he was legally obligated to pay the same. Finally, the wells were constructed and paid for in May 2023, and despite Mr. Black’s contention that he began thinking about constructing the same approximately two years prior, there was no proof in text messages, e-mail messages, or bids, or any other evidence demonstrating the same.

Consequently, Mr. Black’s appeal should be dismissed and ADWR’s Director’s Decision should be affirmed.

ORDER

IT IS ORDERED that, for the reasons set out in the Conclusions of Law, Mr. Black’s appeal is dismissed.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be forty (40) days from the date of that certification.

-54864001

001

-137160-45720000Done this day, November 22, 2024.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Thomas Buschatzke, Director

Department of Water Resources

Anthony C. Proano

Sara Leopold

Ayesha Vohra

[email redacted]

Timothy A. La Sota

TIMOTHY A. LA SOTA, PLC

[email redacted]

By: OAH Staff