Did Mayes run for AG or Guv?
Mayes apparently thinks the Arizona Department of Water Resources reports to her, not Hobbs.
Kris Mayes’ margin of victory in the attorney general race was a statistical blur, undetectable without the aid of a microscope. Yet, despite the narrowness of her election, she’s apparently not content sticking to the bread-and-butter duties of the office. Instead, she wants to use, more precisely misuse, her office to dictate the actions and policies of other state agencies, poaching on the management prerogatives of Gov. Katie Hobbs.
At least that’s the implication of an imperious letter Mayes recently sent to the director of the Arizona Department of Water Resources, Thomas Buschatzke. Mayes thought highly enough of the letter to issue a press release regarding it.
Now, Buschatzke and the department report to Hobbs, not Mayes. In fact, ADWR doesn’t even use the legal services of Mayes’ office, having statutory authority to hire its own lawyers.
Nevertheless, Mayes’ letter, employing dubious and counterfeit legal reasoning, gave Buschatzke tasks to perform and specific policies to adopt.
State law sets up groundwater regulatory structures for what are deemed active management areas. The law also says that: “The director shall periodically review all areas which are not included within an active management area to determine whether such areas meet any of the criteria for active management areas….”
In the letter, Mayes effectively accuses ADWR of shirking this directive. She demands an account of what activities ADWR has conducted over the years to comply. And if the department feels that it is unable to comply, why.
Now, again, the department reports to Hobbs, not Mayes. And, with Arizona’s Colorado River allocation at risk in high-stakes negotiations involving the federal government and other states, the department has higher priorities than preparing a report to Mayes regarding past groundwater reviews.
A letter from the attorney general always carries an implied threat of some sort of legal enforcement action. That’s utterly inappropriate in these circumstances. What constitutes a periodic review of non active management areas isn’t specified in statute. Moreover, even if some of the criteria for conversion into an active management area are met, the director has complete discretion whether to initiate the process for doing so. It’s not required or mandated.
Whether the state should invest more resources into studies of non active management areas is a decision for the governor and legislature, not the AG.
The counterfeit legal reasoning concerns the purchase and transportation of Colorado River surface water. The department and the federal government recently approved such a transaction between Queen Creek and an investment group that had bought up farmland adjacent to the river.
Mayes apparently opposes such transactions as a matter of policy. According to her, ADWR has a statutory “duty” to consider the cumulative effects on river communities not just of any particular proposed transaction, but others that might be proposed. The clear implication is that they should be rejected on that basis.
She derives this “duty” from some boilerplate language in the statutory powers and duties for the director: “Formulate plans and develop programs for the practical and economical development, management, conservation and use of surface water, groundwater and the watersheds of this state, including the management of water quantity and quality.” However, the introductory clause is: “The director may”.
From that broad and general grant of discretionary authority, Mayes concocts a specific duty to review water transactions in a particular way, her way.
Now, more robust water markets are a key component in coping with a reduction in Arizona’s allocation of Colorado River water. As a political matter, the residents of Queen Creek and other Valley cities should remember that Mayes attempted to misuse her office to place obstacles in the way of a more secure water future for them.
Mayes isn’t the first AG to attempt to inappropriately micromanage state agencies. Hobbs got a taste of that while secretary of state, when Mark Brnovich sought to dictate the content of the Elections Procedures Manual.
There has been a previous clash between Hobbs and Mayes over water, when they each sought to take credit for canceling a well drilling permit for a Saudi farming interest. I don’t know whether she will, but Hobbs should regard Mayes’ attempt to dictate the actions and policy of ADWR as an unacceptable and highly offensive encroachment on her management domain.
Contrary to the claims of those who occupy the office, the attorney general has no inherent or constitutional powers. The state constitution establishes the office, but says powers and duties shall be as prescribed by law. In other words, by the governor and the legislature.
I’ve long advocated, while the position was held by both Republicans and Democrats, fundamental reform of the statutory grant of authority to the attorney general, to make it clear that with respect to other state agencies, the office provides services in a client-lawyer relationship and isn’t an independent policymaker. And to eliminate the ability of attorneys general to act as their own client, as Mayes is doing in this instance, and many others.
The legislature tried to pass a bill requiring the AG to defend court challenges to state laws, which should be a fundamental and core responsibility of the office. It got watered down to be just a notification that the AG wasn’t going to do that in a particular case. Hobbs vetoed it anyway.
With Mayes pouching on Hobbs’ management domain, perhaps there can be a constructive bipartisan discussion about what the AG’s office should, and shouldn’t, do. It’s long overdue.
Reach Robb at robtrobb@gmail.com.