Obama Administration vs. Tombstone

Eric Burns is an educator and writer, who resides in the Baltimore-Washington area.


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On behalf of Tombstone, the Goldwater Institute has filed a motion for a preliminary injunction that would allow city officials to go into the Huachuca Mountains and repair the damaged water transport infrastructure. Tombstone’s case is supported by the Tenth Amendment and by the fact that the city’s water rights were vested long before the Wilderness Act of 1964 and the concomitant Arizona Wilderness Act of 1984. The Tenth Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” and implicitly embodies “a policy against impairing the states’ integrity or ability to function.”

In Tombstone’s “Memorandum in support of motion for preliminary injunction,” the Goldwater Institute clearly shows that the city satisfies the four requirements for granting a preliminary injunction. In addition, this document gives numerous examples of how the Forest Service’s refusal to allow Tombstone officials access to the Miller Peak Wilderness area, and their inexcusable stonewalling of the permit issuing process, has not only seriously compromised Arizona’s integrity and Tombstone’s ability to function, but has put the town’s very existence in jeopardy. The requirements for the court granting Tombstone a preliminary injunction include, “whether the plaintiff is likely to suffer irreparable harm in the absence of preliminary relief,” and “whether an injunction is in the public interest.” [1]

The Forest Service’s refusal to allow Tombstone officials access to the damaged water supply infrastructure constitutes unlawful “commandeering” of the city’s water supply, and this commandeering “is certain to cause irreparable harm.” This is because “irreparable injury includes the impairment or threatened loss of rights or interests in real property,” “impairment of sovereign interests without notice or opportunity to be heard,” and “harm or threats of harm to public health and safety.” The Goldwater Institute explains that water rights are “real property interests” in Arizona and that Tombstone holds “title to water rights and water structure and pipeline right of way easements,” pursuant to a Congressional Act of July 26, 1866. By this Act, the Federal government is obligated to “protect the rights of individual possessors of water; and to recognize local customs, laws, and state court decisions.” Indeed, in 1907, Gifford Pinchot (a well-known “progressive”) wrote in the U.S. Forest Service’s book, “Use of National Forests,” “The creation of a National forest has no effect whatever on the laws that govern the appropriation of water. This is a matter governed entirely by state and territorial laws.

In addition, the Forest Service recognized Tombstone’s vested water rights in 1916, and in 1962 granted the city a special use permit to maintain and repair its water delivery infrastructure. The Goldwater Institute further explains that the city’s “health and safety interest is not offset by any bona fide environmental interest.” This is because “Any environmental footprint from the work Tombstone seeks to perform will be washed away in the next monsoon,” and that “Even if there were a lasting footprint, environmental interests are not better served by requiring Tombstone to build only temporary structures with hand tools. Those structures will be washed away in the next monsoon. Given the inevitability of seasonal monsoons and periodic flood events in the Huachuca Mountains, it makes no sense to force  repair and rebuild temporary structures ad infinitum with the continuous ground displacement that entails.” [2]

Nevertheless, in 2011-2012, the Forest Service has chosen to ignore not only Pinchot’s (the Forest Service’s first Chief Forester) comment, but the above-mentioned July 1866 Congressional Act and a large body of federal and state case law. By their refusal to allow Tombstone officials access to the city’s water delivery infrastructure, the U.S. Forest Service has violated Arizona’s state sovereignty, directly regulating the state through a political subdivision (Tombstone), in violation of a Tenth Amendment corollary that the Constitution “confers upon Congress the power to regulate individuals, not states.” In addition, the Forest Service has illegally commandeered not only the town’s physical water system, and the authority of Governor Jan Brewer, but Tombstone’s integrity and ability to function.[3] Americans can only hope that the Federal District court will rule against the U.S. Forest Service and order them to allow Tombstone to repair vital water delivery infrastructure as soon as possible, ensuring that the town will continue to exist.

Footnotes:

[1] Goldwater Institute, “City of Tombstone’s Memorandum in Support of Motion for preliminary injunction,” p. 5-6; at www.goldwaterinstitute.org.

[2] Ibid., p. 11

[3] Printz v. United States 521 U.S. 898, 920 (1997), as cited by Goldwater Institute, Ibid., p. 15; Goldwater Institute, “Tombstone’s reply in support of motion to extend time by severing and continuing consideration of Tenth Amendment issues,” p. 8-12, at www.goldwaterinstitute.org.

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  • Chris Gleason

    More of Obama's thuggery! No sane person would hamper a town's efforts to save itself from disaster. This is his way of asserting his power over all of us, as if we were not already aware of it. From costly regulations imposed on businesses and on consumers, to giving taxpayers money to support Palestine's war on Israel, to allowing Eric Holder to manage the killing US Border Patrol members, this man is the worst ever seen in the Oval Office. He should be impeached immediately, before he does damage we can't correct.

    • PhillipGaley

      "before he does damage which can't be corrected."? In the deaths of US Border Patrol members, many more Mexicans, millions of those aborted innocents, and many souls in the Middle East, by what appearance of logic are we to suppose that, such damage has not already occurred, and in full measure? Thimk! Man, thimk!

  • Ken

    This is just another way to get back at Arizona for it's immigration law. Obama and his cronies will find ANY way to get even with anyone who dares oppose them!! No matter how ridiculous or how obviously wrong they are.

    • Stephen_Brady

      Agreed. He desperately wants to be a dictator, and the federal laws that he's using allow him to come dangerously close.

  • WilliamJamesWard

    Who in the Forst Service makes these outrageous decisions? In America's Unviersities where courses
    in Forestry are held the students are again brainwashed as to how bad man is and should not be on
    any Forest lands where they will do terrible things. Proper and respectful use of land, putting rules in
    place to insure no wanton destruction and pollution should be in order to avoid waste. The obfuscating
    of necessary and useful uses serves only the leftist agenda to make America unliveable for Americans.
    Congress if it was worth it's pay and usefull which it is not, Congress should reorganize the Forest
    Service and insure it serves the People of America properly, respectfully and with urgency where
    and when necessary. Witholding funds from the miscreant agency until it straightens out would be a
    good first step, firing the criminal subversives shoud be on Congresses agenda………….William

    • Stephen_Brady

      Local control is the key, William. Take these powers away from the federal government, and return them to the states, where they belong. I believe that the protection the land receives will not only be more responsible, but more respectful to property rights (which is another term the Left hates, unless the property is theirs).

      And let's not forget the tourism money that Tombstone brings in to the State of Arizona. Obama is hitting the state where it hurts, and there's reason behind his madness. Evil reason, but reason, nonetheless.

  • Stephen_Brady

    Obama would wet himself if Doc Halliday looked at him and said, "I'm your huckleberry."

  • tagalog

    Get the vehicles and power tools out there to insure the continued water supply for the people; when the U.S. government sues, turn it into a media frenzy and if Tombstone loses, refuse to pay the judgment. Screw the United States government. The United States deserves better than the government it's got.

  • ctyankee

    In addition, the water in one well is contaminated with arsenic.

    I remember when Democrats in Congress claimed that President G.W. Bush wanted to put arsenic in the water supply. It was actually a question of lowering the tolerance from the previous level of arsenic allowed by the EPA, requiring the closing of some existing water supplies. Where is Dr. Oz on this? Did he test samples of apple juice?

  • reality

    This is another act by Obama adminstration that puhishes states such as Arizona becuase of it's enforcement of Federal immigration law.

    BTW, the forest agency for sure use motor vehicles in the forests, why are they immune to thier own regulations?

  • H&R_ Barack

    RE: "Obama Administration vs. Tax-Payer's Tombstone"

    Even White House sources say that the First Lady MOOChelle has spent $10million of U.S. taxpayers' money on vacations alone in 2010!

    MOOchelle's Expensive massages, top shelf vodka and five-star hotels: First Lady accused of spending $10m in public money on her vacations http://www.dailymail.co.uk/news/article-2029615/Michelle-Obama-accused-spending-10m-public-money-vacations.html

    ……..MOOchelle was spent MILLIONS vacationing in Hawaii, or, Spain, or in Las Vegas.

    In February, First lady Michelle Obama’s weekend jaunt to Aspen, Colorado for a President’s Day ski holiday – - – with her daughters Sasha and Malia

    The OBAMAS have gone on MORE than 16 extended vacations during their – three years..

    Today the HUSSEIN Obamas' have sucked the taxpayer for more than TWENTY vacations.

    QUESTION: How many vacations have the TAXPAYERS enjoyed in three years?

    • Steve

      This is part of his stimulus plan… to personally stimulate the tourism industry with taxpayer money (unfortunately, they are doing most of it overseas).

  • Ronald Johnston

    This evil terrorist must be the Anti-Christ of biblical lore!!!!

  • pagegl

    How many times does this administration have to violate the Constitution before Obama is impeached?

  • ebonystone

    98-406 Arizona Wilderness Act of 1984 Sec. 101(e)(1) Forest Service Arizona
    General Admininstration
    Agency Jurisdiction
    Water
    Water Rights/Laws

    Wilderness(es): … Miller Peak Wilderness,…
    Text: (e)(1) As provided in paragraph (6) of section 4(d) of the Wilderness Act, nothing in this Act or in the Wilderness Act shall constitute an express or implied claim or denial on the part of the Federal Government as to exemption from Arizona State water laws.

    i. e. the Act establishing the Miller Peak Wilderness specifically says there's no exemption from the state water laws.

    Also, since the Wilderness Act defines wilderness as having no permanent man-made structures, how was this area ever approved as a wilderness when it had water pipelines running through it?

    • Eric Burns

      "Also, since the Wilderness act defines wilderness as having no permanent man-made structures,
      how was this area ever approved as a wilderness when it had water pipelines running through it?"

      That's one of the points of the article. The Feds base their case, to a large degree, on the 1964 Wilderness Act, regardless of the fact that Tombstone's water rights were vested long before 1964, and that state law takes precedence. The Feds are acting as if they are right, no matter what.

  • Flowerknife_us

    Arazona should just gather the supplies and personell necessary to make the repairs- protected with their own National Guard. Obama could never get re-elected sending Federal forces to prevent AMERICANS from having a glass of Water.

  • Steve

    I say bring in 20,000 volunteers with shovels, pick axes and horses. Bring the occupiers. They could occupy the forest and help out. They aren't doing anything else. I would volunteer and bring my four teenage kids every weekend until it is complete. The forest service would be so overwhelmed, they couldn't do anything about it. If ancient man could build the pyramids without technology, we certainly could move boulders the size of Volkswagons with enough manpower.

  • Sage on the Stage

    Good idea–and very creative. A solution straight out of ancient times.

  • deleeuw

    Tombstone is known for it's adherence to the 2nd Amendment in a State that is trying to do its part in fighting illegal immigration. Both these points are immensely despised by the current administration. Is it then any wonder that the administration is would be wanting to destroy Tombstone?

    Stalin murdered 3 MILLION Ukrainians by blocking shipments of food because of its opposition to Moscow; Gorbachev cut of the electricity to Lithuanuia when it wanted to be independent.

    And now WE have marxist thugs who are essentially doing the same thing!

  • huck

    Appropriation means whose water it is; Pinchot was right but this article confuses appropriation with methodology. The water is Tombstone's but they must get it according to the current laws. Today they have to use methods that do not include violation of the Wilderness designation, but it is their water. If they don't want to obey the current laws, they can't get to their water. You can't use slaves to do your gardening anymore, either, but it is still your garden. If you want to insist that the Wilderness laws violate the constitution, you are on really shaky ground, but try you can and have your day in court… it worked for slaveholders and other conservatives in the past who kept the "liberals" at bay with abominable court decisions right up until there had to be a war.