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Obama Administration vs. Tombstone

Posted By Eric Burns On May 1, 2012 @ 12:06 am In Daily Mailer,FrontPage | 21 Comments

The latest chapter in the Obama administration’s war against state sovereignty and the state of Arizona pits the town of Tombstone against the United States Forest Service. Tombstone is suing the U.S. Forest Service over that agency’s refusal to allow city officials to repair damaged water transport infrastructure in the nearby Huachuca mountains. The Forest Service’s refusal to allow city workers access to damaged reservoirs, pipelines, and pumping stations, has cut Tombstone off from 50 to 80 percent of its water supply; leaving town residents and tourists dependent on two wells for water, and the town acutely vulnerable to fire. In addition, the water in one well is contaminated with arsenic.

Tombstone is a desert town of 1500 residents located in southern Arizona about 70 miles southeast of Tucson in the shadow of 9466 ft. Miller Peak, which is in the Coronado National Forest. Americans associate Tombstone with the October 1881 gunfight at the O.K. Corral; and the resulting tourist trade has supported the town fairly well. Tombstone has survived the closing of local silver mines and a number of fires, thereby becoming known as “The town too tough to die.” Now, however, that proud title is being severely tested, by our own federal government.

Tombstone is supplied with water from 24 springs, located in the Huachuca Mountains on and around Miller Peak. However, nearly a year ago, from May through July 2011, the Monument fire destroyed at least 18,580 acres (640 acres equals one square mile) of forest and vegetation in the Huachuca Mountains, including the Miller Peak Wilderness area. Torrential rains followed soon after the fire, and the resulting mud slides pushed boulders “the size of Volkswagens” down on vital pumping stations, pipes, and other infrastructure. Some water pipes remain buried under twelve feet of mud, while others are without support, ominously hanging in the air, as the ground underneath has been washed away. In August 2011, Arizona Governor Jan Brewer declared a state of emergency in Tombstone, authorizing $50,000 in state funds to help cover engineering and repair costs for Tombstone’s water system. Since many of the pipelines are in areas designated as “wilderness,” the U.S. Forest Service won’t allow access for the mechanized equipment needed to fix the pipelines. Huge boulders, downed trees, and enormous piles of dirt and gravel must be moved, to build the structures that will protect the water lines against future natural disasters. However, these obstacles can’t be moved with the hand tools and horse teams that the Forest Service demands the city use.

As of January 2012, Forest Service officials had granted permits to repair infrastructure for only 2 of the 24 springs that supply Tombstone; and city manager George Barnes said “the city was told that the requests for the remaining permits would take a lot longer” to approve. Meanwhile, the state’s emergency funds are being wasted, as rented vehicles and equipment are sitting idle, and several pieces of heavy equipment have been vandalized, with the city required to pay for their repair. In addition, Tombstone has only a two day supply of water on hand, making the town particularly vulnerable to fire.

The Obama administration and the U.S. Forest Service are clearly attempting to regulate the state of Arizona in violation of the Constitution and impose an arbitrary, draconian environmentalist agenda on the land use rights of Americans. In addition, gold prospectors on western federal lands are routinely harassed by over-zealous park rangers, and ranchers have been pressured to surrender access and water rights. The Forest Service cites The Wilderness Act of 1964, which defines “Wilderness” as “an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain. An area of wilderness is further defined to mean…an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation…with the imprint of man’s work substantially unnoticeable.”  Under “Prohibition of Certain Uses,” this act states, “[S]ubject to existing private rights, there shall be no…permanent road within any Wilderness area designated by this Act and, except as necessary to meet minimum requirements for the Administration of the area…(including measures required in emergencies involving the health and safety of persons within the area) there shall be no temporary road, no use of motor vehicles, motorized equipment…no other form of mechanical transport, and no structure or installation within any such area.” However, the Forest Service has gone beyond the Wilderness Act and threatened Arizona’s sovereignty and Tombstone’s very existence.

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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