CENTER FOR BIOLOGICAL v. HOBBS

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

CENTER FOR BIOLOGICAL DIVERSITY INC, et al., Plaintiffs/Appellants,

v.

KATHLEEN M. HOBBS, et al., Defendants/Appellees.

No. 1 CA-CV 25-0386
FILED 04-24-2026

Appeal from the Superior Court in Maricopa County
No. CV2024-016330
The Honorable Scott A. Blaney, Judge

AFFIRMED

COUNSEL

Hofmeyr Law PLLC, Tucson
By Adriane J. Hofmeyr
Counsel for Plaintiffs/Appellants

Coppersmith Brockelman PLC, Phoenix
By Sambo Dul, Austin C. Yost
Counsel for Defendant/Appellee Kathleen M. Hobbs

Arizona Department of Water Resources, Phoenix
By Nicole D. Klobas, Emily Petrick, Jennifer Heim
Counsel for Defendants/Appellees Arizona Department of Water Resources and
Thomas Buschatzke
CENTER FOR BIOLOGICAL v. HOBBS, et al.
Decision of the Court

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Andrew J. Becke joined.

C A T T A N I, Judge:

¶1 The Center for Biological Diversity, the San Pedro Alliance,
and Robin Silver (collectively, “Plaintiffs”) appeal from a judgment
dismissing with prejudice their claims against the Arizona Department of
Water Resources, Thomas Buschatzke in his capacity as Director of the
Arizona Department of Water Resources (collectively, the “Department”),
and Kathleen M. Hobbs in her capacity as Governor of Arizona. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 In 1980, the Arizona Legislature adopted the “Groundwater
Code.” A.R.S. §§ 45-401 to -704. Finding that the people of Arizona are
dependent on groundwater basins (that is, areas “designated so as to
enclose a relatively hydrologically distinct body or related bodies of
groundwater,” A.R.S. § 45-402(13)) for their water supply, the Legislature
declared that it was Arizona’s policy to conserve, protect, and allocate
groundwater resources, as well as to provide a framework for groundwater
management and regulation. A.R.S. § 45-401.

¶3 To effectuate that policy, the Legislature established the
Department and gave it “general control and supervision of surface water,
its appropriation and distribution, and of groundwater to the extent
provided by this title.” A.R.S. §§ 45-102(A), -103(B). It further required the
Governor to appoint a director, who serves at the Governor’s pleasure, to
be responsible for the direction, operation, and control of the Department.
A.R.S. § 45-102(B)–(C).

¶4 The Legislature initially established four geographic “active
management areas,” A.R.S. § 45-411(A), and later added a fifth, A.R.S. § 45-
411.03(A). Groundwater rights and uses in these areas are more strictly
prescribed than in areas not subject to active management. Compare A.R.S.
§ 45-451, with A.R.S. § 45-453. The Legislature allowed the Department to
designate additional areas for active management if it determined (1)
“[a]ctive management practices are necessary to preserve the existing

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supply of groundwater for future needs”; (2) “[l]and subsidence or
fissuring is endangering property or potential groundwater storage
capacity”; or (3) “[u]se of groundwater is resulting in actual or threatened
water quality degradation.” A.R.S. § 45-412(A). The Legislature also
directed that “[t]he director shall periodically review” areas not subject to
active management to determine whether they meet these criteria. A.R.S. §
45-412(C).

¶5 The Upper San Pedro Basin (“Basin”) lies in southeastern
Arizona about 50 miles southeast of Tucson. The San Pedro River—the last
undammed, free-flowing river in the desert Southwest—flows through the
Basin. It is an arid region, and groundwater is the sole source of water for
inhabitants of the Basin, which includes Sierra Vista, Benson, Bisbee,
Tombstone, Huachuca City, and the Fort Huachuca Military Reservation.
Public and private water use over the past century has contributed to the
degradation of the San Pedro River ecosystem and the alteration of the
river’s flow.

¶6 The Basin includes the San Pedro Riparian National
Conservation Area (“Conservation Area”), an area designated by Congress
in 1988 to “protect the riparian area and the aquatic, wildlife, archeological,
paleontological, scientific, cultural, educational, and recreational resources
of the public lands surrounding the San Pedro River.” 16 U.S.C. § 460xx
(1988). Congress reserved water “sufficient to fulfill the purposes” of the
Conservation Area, 16 U.S.C. § 460xx-1(d), an amount that was quantified
in 2023.

¶7 Plaintiffs are two conservation groups working in the Basin
and an individual landowner. They allege that, despite considerable
evidence that groundwater in the Basin is declining, it has been more than
20 years since the Department reviewed the Basin to determine whether it
meets the criteria for active management. They filed a complaint for special
action relief in the superior court alleging that the Department had failed to
perform this review of the Basin in violation of A.R.S. § 45-412(C) and that
the Governor had violated her constitutional duty by failing to instruct the
Director to conduct this review. Plaintiffs sought (1) a writ of mandamus
directing the Department to review the Basin to determine whether it meets
the statutory criteria for active management, (2) a judgment declaring that
the Department’s failure to conduct a review of the Basin under A.R.S. § 45-
412(C) is unlawful plus an injunction compelling the Department to review
the Basin, and (3) a judgment declaring that the Governor’s failure to
instruct the Department to review the Basin is a violation of her

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constitutional duty to “take care that the laws be faithfully executed.” See
Ariz. Const. art. 5, § 4 (“Take-Care Clause”).

¶8 The Department moved to dismiss, asserting that mandamus
relief was not available because the Department had discretion in deciding
when to “periodically review” areas under § 45-412(C) and that Plaintiffs
lacked standing for declaratory relief, had not presented a justiciable
controversy, and had not shown entitlement to injunctive relief. The
Governor also moved to dismiss, asserting that Plaintiffs lacked standing
and that they failed to state a claim because the Take-Care Clause is non-
justiciable and no statute imposed a specific duty requiring the Governor
to instruct the Department to review the Basin.1

¶9 The superior court dismissed the complaint, finding no basis
for mandamus relief given the Department’s statutory discretion regarding
when to review groundwater areas and finding no actual controversy ripe
for declaratory relief. The court dismissed the claims against the Governor,
reasoning that their viability depended on the claims against the
Department.

¶10 Plaintiffs timely appealed, and we have jurisdiction under
A.R.S. § 12-2101(A).

DISCUSSION

¶11 Plaintiffs challenge the superior court’s dismissal of their
claims for mandamus, declaratory judgment, and injunctive relief against
the Department, arguing that the Department’s failure to review the Basin
for 20 years is a violation of its duty under A.R.S. § 45-412(C).2 We review
the dismissal, as well as issues of statutory interpretation, de novo.
Blankenbaker v. Marks, 231 Ariz. 575, 577, ¶ 6 (App. 2013). We assume the
truth of all well-pleaded factual allegations. Cullen v. Auto-Owners Ins. Co.,
218 Ariz. 417, 419, ¶ 7 (2008).

1 Plaintiffs’ first amended complaint (“FAC”) is the operative
complaint. Although the FAC was filed after the motions to dismiss, the
Department asked the court to consider its motion as directed to the FAC,
and the Governor moved to dismiss the FAC on substantive grounds. See
Ariz. R. Civ. P. 15(a)(2).

2 The superior court also dismissed Plaintiffs’ claim against the
Governor, but Plaintiffs do not challenge that ruling on appeal, so we do
not address it.

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I. Mandamus.

¶12 “Mandamus is an extraordinary remedy issued by a court to
compel a public officer to perform an act which the law specifically imposes
as a duty.” Sears v. Hull, 192 Ariz. 65, 68, ¶ 11 (1998) (citation omitted); see
also A.R.S. § 12-2021. Mandamus relief is appropriate only if the public
official’s statutory duty is purely “ministerial,” i.e., the manner of
performance is specifically described and nothing is left to the public
official’s discretion. Ponderosa Fire. Dist. v. Coconino County, 235 Ariz. 597,
601–02, ¶ 19 (App. 2014). Mandamus cannot be used to compel an official
to exercise discretion in a particular way. Yes on Prop 200 v. Napolitano, 215
Ariz. 458, 465, ¶ 12 (App. 2007).

¶13 Section 45-412(C) requires periodic review of areas not subject
to active management:

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 as prescribed in this section.

Focusing on “shall,” Plaintiffs argue that this provision imposes a
mandatory duty for which the Department has no discretion and that the
superior court erred by dismissing the mandamus claim because the
Department has failed to fulfill this duty. But the additional wording of
this subsection undermines Plaintiffs’ argument. See Ponderosa Fire. Dist.,
235 Ariz. at 602, ¶ 24 (construing a statute by its plain language, “giving
effect to every word and phrase, and assigning to each word its plain and
common meaning”).

¶14 The statutorily required action is that the Department
“periodically review” areas that are not included within an active
management area. A.R.S. § 45-412(C). But the Legislature did not specify
dates or even intervals for review; nor did it define “periodically” in the
Groundwater Code. See A.R.S. § 45-101. This leaves the term its ordinary
and commonly accepted meaning of “recurring at regular intervals”—
which requires regularity but does not dictate a required frequency. Univ.
Physicians, Inc. v. Pima County, 206 Ariz. 63, 67, ¶ 21 (App. 2003) (citing 11
Oxford English Dictionary 560 (2d ed. 1989)); see also JH2K I LLC v. Ariz.
Dep’t of Health Servs., 246 Ariz. 307, 310, ¶ 9 (App. 2019). This phrasing thus
leaves the Department discretion to determine how frequently to conduct
reviews. See Strojnik v. State ex rel. Brnovich, 1 CA-CV 20-0423, 2021 WL
3051887, at *5, ¶¶ 27–28 (App. 2021) (mem. decision) (reasoning that a

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statute requiring the attorney general to conduct “periodic” compliance
reviews did “not admit of any particular timeframe or deadline,” meaning
the act was not purely ministerial and therefore not subject to mandamus).

¶15 The Legislature did not specify a frequency for review under
§ 45-412(C), although it could have done so. And it did specify dates or
intervals for different provisions elsewhere in the Groundwater Code. See
A.R.S. § 45-105(B)(14) (requiring a water supply and demand assessment
for each groundwater basin “at least once every five years,” with at least six
assessments issued by December 1 each calendar year); A.R.S. §§ 45-564 to
-568 (specifying a date certain for promulgation of management plans for
the initial active management areas). The omission of a fixed time period
in § 45-412(C) thus indicates that the Legislature did not intend to prescribe
a particular frequency and instead left the matter to the Department’s
discretion. See Ballesteros v. Am. Standard Ins. Co. of Wis., 226 Ariz. 345, 349,
¶ 15 (2011) (express inclusion of requirements in some statutes indicates
that omission in others is intentional).

¶16 Plaintiffs contend that the word “periodically” must be
construed in context, suggesting that the Department’s responsibility to
control and supervise Arizona’s groundwater coupled with worsening
water conditions in the Basin means that “periodically” necessarily denotes
something more frequent than what the Department has done. But nothing
in the statute requires the Department to take into account area conditions
before it decides whether to conduct a review to determine if conditions in
the area meet the criteria for active management,3 and we may not read
such a requirement into the statute. See Roberts v. State, 253 Ariz. 259, 266 ¶
20 (2022). Not only would the exercise be circular (relying on existence of
§ 45-412(A) criteria to determine whether a § 45-412(C) review for § 45-

3 Relying on University Physicians, a case about property tax
exemptions, Plaintiffs assert that we should construe the term
“periodically” using a “more particularized analysis” based on the facts of
this case. 206 Ariz. at 68, ¶ 28. Although the University Physicians court
engaged in statutory construction elsewhere in its opinion, see id. at 66–68,
¶¶ 12–27, the “more particularized analysis” referred to a factual inquiry
on remand about whether certain property fit the (properly construed)
exemption, id. at 68, ¶ 28. That is, the “more particularized analysis” was
not, as Plaintiffs suggest, a means of statutory interpretation and did not
permit consideration of factors not found in the statute to construe a
statutory term.

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412(A) criteria is needed), it also would invade the discretion the
Legislature has vested in the Department.

¶17 Plaintiffs assert that the Groundwater Code gives the
Department sole authority to review an area for the active management
criteria, so the Department’s failure to review the Basin more frequently
renders the duty imposed by § 45-412 meaningless and frustrates legislative
intent. But permitting the Department discretion in deciding when to
review which of the various groundwater areas around the state is
consistent with the comprehensive statewide scheme codified in the
Groundwater Code. See, e.g., A.R.S. § 45-401(B) (designing an overall
framework for “comprehensive management and regulation” of
groundwater throughout the state). Moreover, although no other agency
has authority to designate active management areas, the Groundwater
Code provides meaningful alternatives by permitting the Legislature—or
even local voters themselves—to create new active management areas. See
A.R.S. §§ 45-411, -411.03 (initial and subsequent legislatively created active
management areas); A.R.S. § 45-415 (providing for creation of a new active
management area by local initiative on petition of 10% of voters within the
proposed area and subsequent election).

¶18 In sum, § 45-412(C) requires the Department to “periodically”
conduct the required review but gives the Department discretion to
determine how and when to do so. The duty thus is not “purely
ministerial,” so mandamus relief is not appropriate. Ponderosa Fire. Dist.,
235 Ariz. at 601, ¶ 19.

¶19 Finally, Plaintiffs contend that even if the Department’s duty
is discretionary, it has abused that discretion by failing to conduct a review
of the Basin for 20 years despite deteriorating groundwater conditions in
the area. The rule that mandamus is not appropriate when a public officer’s
duty is discretionary is “qualified by the provision that if it clearly appears
that the officer has acted arbitrarily and unjustly and in the abuse of
discretion, the action may still be brought.” Collins v. Krucker, 56 Ariz. 6, 13
(1940). But when there is more than one way to perform a public official’s
duty, the court will not use mandamus to compel one method over the
other. Id. at 13–14.

¶20 Section 45-412(C) gives the Department discretion to conduct
a review as it deems appropriate, only requiring that it be done periodically.
Plaintiffs have not shown that the Department has clearly abused its
discretion. They do not allege, for example, that the Department is
reviewing other areas more frequently or excluding the Basin altogether.

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Instead, Plaintiffs assert that water conditions in the Basin prove the
decision not to conduct a review is manifestly unreasonable. But area
conditions are not a statutory restriction on the Department’s discretion as
to when to conduct a review (and because the purpose of the review is to
determine area conditions, the Department’s duty to perform the review
logically cannot be dependent on them).

¶21 Plaintiffs’ allegations do not adequately establish that the
Department abused its discretion, given all of the relevant considerations,
by waiting twenty years to review the Basin to determine whether it meets
the criteria for active management. See Sensing v. Harris, 217 Ariz. 261, 265,
¶ 14 (App. 2007) (“[D]isagreement alone is not a basis for mandamus.”).
Accordingly, because the Department’s duty to periodically review the
state’s groundwater areas is discretionary, and given Plaintiffs have not
established an abuse of that discretion, the superior court did not err by
dismissing Plaintiffs’ claim for mandamus relief.

II. Declaratory Judgment and Injunctive Relief.

¶22 Plaintiffs argue that the superior court erred by dismissing
their claim for declaratory judgment and injunctive relief, but they rely on
the same arguments as their challenge to dismissal of the mandamus claim,
which are unavailing as described above. And Plaintiffs do not challenge
the superior court’s conclusion that this claim failed because they failed to
allege an actual controversy ripe for adjudication. Accordingly, we affirm
the dismissal of this claim.

III. Attorney’s Fees on Appeal.

¶23 Plaintiffs seek an award of attorney’s fees under A.R.S. §§ 12-
2030(A), -348(A)(4), 41-1001.01, and the private attorney general doctrine,
should they prevail on appeal. The Department also seeks an award of fees.
Because Plaintiffs have not prevailed, we deny their request. Because the
Department has not shown an entitlement to fees as a sanction under A.R.S.
§ 12-349 or ARCAP 25, we deny its request.

CONCLUSION

¶24 We affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR
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