"When Sen. Jake Flake put pressure on over the issue of eminent domain (by calling a special legislative hearing), APS accepted our standing offer to mediate," Aztec President Stephen Brophy said. "After the mediation, APS said they would drop the suit in exchange for a right of way across our land to transport their water. We said we would grant it if they would pay the cost of our legal fees incurred from the suit."
Aztec's total bill related to the suit came to about $950,000, he said. That included the service of several law firms as well as the services of assessors, hydrologists, geologists and other experts.
On APS part, Spokesman Steven Gotfried said they had been negotiating with Brophy on a settlement all along, not just after Flake's actions.
During the final day of mediation, Brophy said, Herb Guenther, head of the Arizona Department of Water Resources, attended, being present from 1:30 p.m. until almost midnight.
"I wanted him there to make sure it wasn't characterized wrongly," Brophy said. "Arizona is blessed to have people like Mr. Guenther and Mr. Flake."
Although Flake cancelled the hearing after learning of the settlement, Brophy said he would bring up the matter of eminent domain, especially as it applies to such companies as APS and other utilities which are not government entities but have traditionally been allowed to condemn land, in the next session of the legislature.
Even with the settlement, the suit won't be dismissed until all the documentation has been finalized, both Gotfried and Brophy said.
APS owns six square miles south of Cholla, checker-boarded with Aztec sections, on which the power company already has wells along with wells they have used on Aztec land.
"The settlement assures us we have access to our land," Gotfried said. "I'd say that both parties got what they wanted. We want to continue operating our Cholla plant and he (Brophy) gets his land. We will have access so we can get the appropriate water and we will take the necessary steps to get the amount of water we need."
Brophy said those steps would probably mean APS will "spend millions to drill on their land and I'm sure they will build right close to our land. The ground water law allows them to do that."
When APS first brought the lawsuit, Brophy said, he said he thought the company couldn't operate without their water. He added that if they were going to the judge, saying there would be blackouts without the water, he thought they must need that water.
"Otherwise, why would they put Aztec through a year and a half of profound torture?" he asked. "After all that, they went to the settlement conference two weeks ago (May 30) and said they don't need our water.
"It puzzles me why they launched the suit. I thought they had a legal right to get a right of way. I don't like mucking underneath our land but I'd rather have our land. We still have to deal with people who have the right to condemn our land."
Gotfried said he couldn't talk about the specifics of the settlement, but added, "We've been wanting to have a conclusion that is fair and equitable to both parties. It looks like this does that. Nobody owns the water."
The lawsuit began when a lease APS had with Aztec Land and Cattle Company was set to expire this Aug. 31. They decided they wanted to buy the property after Aztec raised the proposed cost of the lease. Leases on about 90 percent of the land expired this year with the final 10 percent in two years. In the time APS leased the land, it put in wells, pipelines and associated infrastructure.
* Reach the reporter at lupre2@yahoo.com
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