Brady

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERNEST EUGENE BRADY, husband;  MARRITTA KAY BRADY, wife; JAMES DEAN BRADY, husband; FLOSSIE MARIE BRADY, wife, Plaintiffs-Appellees, v. ABBOTT LABORATORIES, an Illinois No. 04-15257 corporation (including Ross Products Division of Abbor  D.C. No.

CV 01-0886 JAT

Laboratories, improperly named), Defendant-Appellant, ORDER and

ABC ENTITIES, I-X; JOHN/JANE

DOES, I-X; ROSS PRODUCTS, a Division of Abbott Laboratories, Inc., Defendants.  Filed April 25, 2006

Before: Jerome Farris, A. Wallace Tashima, and Consuelo M. Callahan, Circuit Judges.

Order; Dissent by Judge Hawkins

ORDER

The panel has voted to deny the petition for panel rehear- ing. Judge Callahan votes to deny the petition for rehearing en banc and Judges Farris and Tashima so recommend.

4589 4590 BRADY v. ABBOTT LABORATORIES The full court was advised of the petition for rehearing en banc and a judge of the court called for a vote on whether to rehear the matter en banc. On such vote, a majority of the nonrecused active judges failed to vote in favor of en banc rehearing.

The…

dissenting

from the denial of rehearing en banc:

We should have taken this case for en banc review because it presents an important question of state law that should have been certified to the Arizona Supreme Court: whether the “reasonable use” doctrine articulated in Bristor v. Cheatham, 75 Ariz. 227 , 255 P.2d 173 (1953) (“Bristor ”) has been modified, in certain drought-sensitive areas of Arizona, by the enactment of the 1980 Arizona Groundwater Code (“the Code”).

Bristor established that a landowner owed no duty to an adjacent landowner for the extraction of groundwater, even where there is demonstrable damage to a neighbor’s land, as long as the water taken is reasonably used on the overlying land.

*925 In 1980, the Arizona Legislature, recognizing the state’s expanding population and limited water supplies, enacted a comprehensive regulatory scheme which dramatically altered the groundwater landscape. The Code significantly modified the rights of landowners to remove groundwater underlying their land. In certain drought-sensitive areas (Active Management Areas or “AMA’s”), landowners may not even begin to extract groundwater from beneath their land without permission…

ORDER

The panel has voted to deny the petition for panel rehearing. Judge Callahan votes to deny the petition for rehearing en banc and Judges Farris and Tashima so recommend.

The full court was advised of the petition for rehearing en banc and a judge of the court called for a vote on whether to rehear the matter en banc. On such vote, a majority of the nonrecused active judges failed to vote in favor of en banc rehearing.

The petition for panel rehearing and the petition for rehearing en banc are denied.