and the court said the council should be prepared to address whether the following question should be certified to the arizona supreme court for decision and that issue is as does the arizona groundwater code or as section forty five five eighteen a including implied private right of action for damages for the withdrawal of groundwater based on negligence per se and if so does that right include a right to  groundwater basin's water table at any specified height savage's position is that question need not be certified because the issue has been weighed in and because it's been  honor and i want to explain that in a moment and go through the record however if the court feels that it hasn't been way then that issue is dispositive then that issue should be certified to the arizona supreme court a decision so that these you can be properly briefed and address and give the ground water users of arizona the right to weigh in on this thread because for brief as well as the department of water resources case in fact and it stipulated with the department of water resources that it violated its permit by exceeding in excess of that ad also stipulated that it filed a report court's nine hundred ninety seven groundwater withdrawals that was inaccurate that showed zero water had been withdrawn and that was inaccurate and have it also stipulated with the arizona department of water resources that it failed to file a report for hundred ninety eight withdrawals and violation of statute avett they and entered into a consent order with the department of water resources and the department of water resources found those doctrine of property owners can withdraw as much percolating ground water beneath their property as they find so long as the water was withdrawn to make it beneficial use of one's property and that is the brister versus cheated case what you can't do and what the cases say you can't do is you can't withdraw that water not to make and beneficial use from the land with which withdraw in the cases are if you transport that right irrigating another property or things along those lines correct so if you know i guess when you look at the facts of this case and and just you know that you do all your legal analysis and then you see where it takes you now if you assume that the basements are reasonable use but in order to do that they spent you have to get the permit and so you have this agency determining you know how much you can pull out and the record seems to be undisputed that your client pulled out too much now if your client had a right to do the basement in the first place but then also has a duty to comply with the permit if it had complied with  permit maybe they wouldn't have the water in the other property so if they can show that you know what they did was the cause if the water in the other property is you know where does have to put us because in a civil different issue whether violating the permit creates to us you know a private cause of action i don't see any authority out there right now for that fact it would seem that it's an enforcement statute that exactly what you're talking about is if they get fined sixty five hundred dollars and all of that well that's not going to stop that's not going to be any any consolation to the people around that their water gets to eat their property is that withdrawing you've got ground water to make a beneficial use of one's property as long as that is happening you can pump your neighbor dry and they have no remedy that's the law that's the law in arizona reasonable what's reasonable is to make beneficial use of one's property the cases and we've cited the cases where do watering excavations for mining purposes for ground already to develop one's property is a reasonable  the water went off the property diverted away from the plains property as well as the city as the adults and ran away court said under the doctrine of reasonable use they're making reasonable use of their land by contrary can't get to the roots and they can't get to the roots because they can't get to the lawn and they can't get to the water because the table has been lowered and the table has been lowered much more than this and by the way i want to know if this is in my view of the case is what i think the record shows and that's that's that's what i'm talking about and i understand you're on the right one is the first question is is there going to argue right well you know that in time to do something they they they knew it when it happened in the city of seattle case they know what happened i believe it's the bayer case cited where it caused sinkholes on the plaintiff property been in this country for years and it's a modification from the so called english rule which allowed unlimited use of the water even for selling it and using it maliciously but the american sports day has a temper that and they said the rule is as long as you use or excuse me as long as you would draw the water to make beneficial use of your property even if you pump your neighbor dry even if it ruins their agriculture that's not a contrary it had a different view of the right again the district court relied on two cases one was the fica case which water was transported off and used on another property which is not the fact here the water may have went away from the property but it was withdrawn to make beneficial use of the property from which it's withdrawn the other case that the district court relied upon as a polonium vestment case in that case there was a contract between a buyer in a seller o property and the seller wanted a royalty interest in future groundwater sells from that property that would come back to the seller a subsequent purchaser said that that agreement did not run with the land and the court of appeals said well it's a royalty interest and royalty interests are property interests that run with the land and it's no different than a mining royalty interest or an oil royalty interest and the district court said because of that case there's a property interest in groundwater however the arizona supreme court says no that's not the case in fact the arizona supreme court in town know valley too said that ownership of ground water prior to its withdrawal has been shown to be legally fallacious it said it held in arizona a landowner has no property right in groundwater prior to its withdrawal then again in the ila river adjudication which we've cited in the papers the arizona supreme court again said that a landowner has no right to future groundwater what the right is is interests where all property owners have the work right to withdraw groundwater if it's beneath their property to make reasonable use of their land and if that impacts any other land owner around there there is no liability causing event under the common law so if you for your position would be then if i understand it correctly the only way that  did violate the you know some regulations and was wrong to do that your client still was engaged in making a reasonable use of the property had a right to do that now may have to pay fines either way otherwise and so there while bad things happen to the plaintiffs thirty just would be there would be no remedy for it on last if there was a determination that negligence per se on you know on violating the permit was the basis for a cause of action which right now there is no case in forty four that is that am i getting it right there is no case for that but again negligence per se limit let me back up again in hundred eighty the arizona legislature enacted the groundwater code and they did so in response to the fica case which i've discussed before and the reason they did it was to address transportation of groundwater within the same s basin and although that was a violation of common law or an unreasonable use in fact the legislature said if you withdraw ground water and transport it within the same sub basin you're not subject you can do that and not even be go case but in addition they wanted to manage the groundwater by by having these permeating obligations and if we look at the statute where the legislature that that would draw is with groundwater are threatening to destroy the economy of certain areas of this state and is threatening to do substantial in your theory to the general economy and the welfare of the state and its citizens in the exercise of its police powers it put it in these regulations and that's what the town of chino valley did it did not overrule the common law of reasonable you say the town of chino valley case holds that what he did is it put in regulations regulating it for the general welfare of the state's economy but it did not over rule the doctrine in fact the arizona district court in cherry versus steiner which is cited in the paper said the doct reasonably used still exists in arizona and that case was affirmed by the arizona supreme court you know in this case doing that didn't the district court conclude that the plaintiff didn't have a right to recover in this case into the groundwater code yes they did in the end that would be where they said that they waive that issue in the record that's excerpt of record i believe twelfth which is a march thirty first district court order now  is that what you depend on when you say spin wave yes not only that it's not only been waived because of their waiver in the district court but if you look at their brief they never argue brief to this court brief to this court negligence per se action they never argue an implied right of action they never cite any case the tell last case which was cited before it's never cited in their briefs and then there are other cases actually implying rights of action under statutes and i hear they cite none of those cases that play into this groundwater claim obviously the court can affirm the district court for everything any rate reasons that on the record but also the court's policy is not to address arguments that have been way below or waived on appeal and that has been waived gone below and wait on appeal we have not had the opportunity to address that issue and for anything on the negligence per se or an implied right of action you know that one of courage and one of the policies of this court a wasn't there oh if you look at the great trial statement the only theories they rave and that's i believe that sort of record thirteen i believe is negligence and nuisance the only addresses if that were still left for trial were negligence  stink no in our five substantive reasons why the first is and i've submitted to the court this morning a copy of the two statutes i'd like to talk about forty five fashion five forty five and forty five dash six thirty five each of your honor should have your set of those statutes i think would be helpful if each of your honors just put them side by side because i would like to compare and contrast them because the first and most formidable reason why the court question need not be certified to the arizona supreme court because because twenty five years ago when the arizona legislature promulgated the arizona groundwater co established two separate statutes which the court has before it governing what judge callahan just asked counsel how do you distinguish between a remedy for the injured landowner who has been harmed by someone who is pumping in violation of their permit versus sanctioning or penalize ing the permits he who has the illegally pump in violation of the permit and what the legislature did twenty five years ago in arizona groundwater codes that look under section five forty five the title of that statute is damage rules applicable to all transportation of groundwater and the legislature talks about in any action it's an unfettered statute in any action to recover damages neither injury nor impairment of the water supply of any landowner shall be presumed so what this statute addressed this is the nature and and as we see in subsection b the nature and extent of an injury to a landowner's water supply and inherently in the statute is that injured landowners action to recover damages a rising out of the illegal transportation of groundwater this is the twenty five year old statutory remedy for an injured landowner to recover damages to injury or impairment to his use of right of the groundwater now when we compare and contrast that to section six thirty five which the court has before this addresses judge callahan's question here is the statutory remedy for the director of the arizona department of water applied to section two a part of the claim for damages nothing when i know it is never been used in the twenty five years that's my knowledge and so when the court looks at section forty five six thirty five section eight talks about a person who has been determined pursuant to section six thirty four two of pumped in violation of the permit when we look at section six thirty four that's that's up for a huge administrative hearing process for the department of water resources to to initiate against someone like abbott who illegally pumped in violation of their permit section eighty two says there's a civil penalty the title of the section is violations civil penalties there's a civil penalty to be assessed but ten thousand dollars per day and then the crucial aspect of six section six thirty five that i really need the court to focus on is subsection b what does the legislature say needs to happen when the department of water resources  someone like at it has come to legally in violation of their permit subsection b and action to recover penalties not damages and action to recover penalties under this section shall be brought by the director in the superior you are if you believe one of your permits heeds is being is pumping in violation of that permit then you have to initiate an administrative proceeding under section six thirty four and to recover the civil penalties that were assessed under section six thirty four under six thirty five you have to institute an action to recover those penalties in the state superior court now what's your response to mr masters argument to you so you waive a rights in the groundwater destruction of the raffle for avocet we're statutorily immune from liability under forty five that i forty one if you look at forty five dash by forty one which they've cited repeatedly it's on page thirty two of their opening brief where they cite lines three to five of their opening grief page thirty two they cites of what section five forty want to say they're statutorily immune from liability why because they say five forty one provides that groundwater withdrawn pursuant to a permit may be transported without payment of damages within a sub basin well the problem when they raise that issue and they file a motion for judgment on the pleadings saying as a matter of law violation of their permit and you have to be deemed to have being transporting a statutorily defined word under section four row two transporting groundwater and section four zero two subsection thirty seven defines the word transportation as taking water from the point of withdrawal to the point of use and inherent within that definition is the point of beneficial use so all the bradys did in the trial and district court that could entitle to recover under the ground article no september from the common law no it was as the trial court said well i don't find any case law under section five forty five that there complaint in state court to go after the recovery of the civil penalties and i would ask the court to compare and contrast that with asic is saying to this court as well hey we got penalize six thousand bucks for destroying the bradys orchard and destroying their title forty five because it wasn't initially pled as a breach of statute claim oh but the trough court said it doesn't really matter they're still using the docs and the reason to use the common law inquiry that must be made one the legislature twenty five years ago said with regard to transportation of groundwater within a sub basin which is what happened in this case groundwater withdrawn pursue wants to a permit may be why this have it in both section five forty one saying we've got statutory immunity which transported the groundwater within some basin and i kept saying to the trial court they don't have statutory immunity they weren't doing it pursuant to a permit they were doing it in violation of their permit and they were transporting it to a beneficial point of use so to answer judge callahan's question yes there would be no remedy why because of section five forty one but we have to take one step back why would be that there be no remedy for the  thing they must conclude under a three is the ground water to be withdrawn pursuant to the permit will be used beneficially the second thing undertake for the watering will not harm any person permitted to withdraw or use groundwater so the groundwater will be used beneficially so then we get to section five forty one yet if you're pumping pursuant to that permit where by statutory definition dwi has already concluded you're not going to harm anybody else like hopping that if you do all that and then if you transport the groundwater for a beneficial you since he retention basins as you said you were going to do then under five forty one which was the bradys so what we have here is twenty years ago the legislature saying injured landowners do have a remedy and under section five forty five you don't presume injury or impairment to a land owners chino valley case in one nine hundred eighty one the year after the code was promulgated said that quote the right of the owner to groundwater underlying his land is to be used for up to the water and not to the water itself close landowners who use a proper right to the groundwater has been injured or destroyed by someone pumping in violation of their permit has a remedy under arizona law and that remedy is whether you want to call it a common law remedy or statutory remedy there is a remedy because what africa argues to the office if that is there is no remedy but six thirty five requires the w r to take the civil penalties under subsection thought where we differ i'd like to answer some of the court's question his last statement what is five forty five me and that's the section for damages under the code and what that is a section for damages under transportation where you transport between sub bases that's not what occurred here next is the inconsistent position that you've heard mr keogh take that here to day one he says they didn't bring statutory claims they brought common law claims under the forty five forty five doesn't apply because this is not a transportation case correct your time because they've never fled nor proof that this water went out of a sub basin across the sub basin boundary clearly it went off the property so they don't bring a statutory claim and we've never argued statute of statutory immunity we've argued when they didn't bring a statutory claim you've heard that he said he did not want to we brought a common law claim the common law is clear that if he would draw the groundwater make then official use of your property no liability attaches even if you feed water your neighbor's farm this is not a case where water is being give you somewhere else you know you know what i think the difference is you can deal  that it points but again putting the water to a beneficial use if it's it is that made the letting the water percolate back into the ground which occurred here whether on or off the property in the same stuff basin and the common law that you don't have to quote use the water the city evans vs city of seattle you also have the bayer case the kalar case my time's up and let's have the questions thank you thank you coun