A new fight has developed in the American West over water, where strategies to use the liquid gold routinely are litigated and challenged. But in one case, according to a legal team, the result literally could kill the historic town of Tombstone, Ariz.
The Goldwater Institute today told WND it has filed a motion for a preliminary injunction that would allow town officials to go into the Huachuca Mountains to repair the collection system – pools, pipes and related equipment – that provide the town with much-needed water in the desert climate.
The federal government has said no.
Nick Dranias, head of the Joseph and Dorothy Donnelly Moller Center for Constitutional Government at the institute, said the issue is far larger than just a dispute over whether trucks and tractors can be used to repair city-owned property inside a federal land preserve.
“This is a case of egregious federal overreach,” an institute report on the conflict said. “If the Forest Service can effectively seize Tombstone’s 130-year-old water rights during a state of emergency – rights that the service recognized as valid in 1916 – no state or local government will be safe from the feds.”
In the arid West, most cities and towns, including Cheyenne, Wyo., and the Denver metropolitan area, draw at least some of their water from collection systems on federal lands. In other parts of the nation, municipalities have their wells and other critical infrastructure sometimes on federal properties.
“By denying Tombstone access to its water, the Forest Service is threatening to directly regulate Tombstone to death,” the institute said.
The shortage developed because of the Monument Fire in 2011, which denuded the hillsides of vegetation. After the fire, record-breaking monsoon rains hit the region, triggering huge mudslides that left boulders the size of cars tumbling down hillsides.
The slides crushed Tombstone’s mountain spring waterlines and destroyed reservoirs for the town’s main water supply network.
“In some areas, Tombstone’s pipeline is under 12 feet of mud, rocks and other debris, while in other places, it is hanging in mid-air due to the ground being washed out from under it,” the institute reported.
However, instead of allowing repairs as has happened in the past, “federal bureaucrats are refusing to allow Tombstone to unearth its springs and restore its waterlines unless [city officials] jump through a lengthy permitting process that will require the city to use horses and hand tools to remove boulders the size of Volkswagens.”
Dranias told WND the organization expects to hear a decision on its request for a preliminary injunction by the end of next month.
He called the skirmish just the “tip of the iceberg.”
He said there is evidence that the Forest Service under Barack Obama’s leadership is adopting a comprehensive plan “to clear federal lands of any private or non-federal uses.”
Ranchers in the West, according to Dranias, have been told to give up their various access and water rights, ski resorts have faced problems with access to federal lands and Indian tribes have been dealt the same blow.
“The way I look at it is if they can break Tombstone, take Tombstone’s mountain water rights, then nobody is safe,” he said.
History, he noted, is on the side of the town and its people.
A brief submitted to the court notes that in 1916, Tombstone’s predecessor in interest to the rights at issue, Huachuca Water Company, obtained a letter from the Forest Service admitting that it had full right and title to the Huachuca Mountain water infrastructure.
“What was abundantly obvious to defendants in 1916 is now being completely disregarded,” the brief said. “In fact, the chain of title to Tombstone’s water rights, infrastructure and rights of way in the Huachuca Mountains is clear. Tombstone actually holds previously adjudicated water rights, as well as appurtenant and independent land use, pipeline and access rights of way.”
The brief continued, “Defendants’ conduct in this case can only be explained as an arbitrary and capricious effort to enforce fealty to a clearly erroneous interpretation of federal law.”
It’s a key 10th Amendment fight, according to the institute, because, “Just as the federal government cannot regulate the states, it cannot regulate political subdivisions of the states, like the city of Tombstone. And despite what power it may claim, the Forest Service certainly has no power to regulate Tombstone to death.”
The institute noted that Arizona Gov. Jan Brewer already has declared a state of emergency for Tombstone, gathering together “all police powers of the state,” to address Tombstone’s need.
The town has some wells, but they are subject to contamination in the desert region, and its water for generations has come from the clear springs of the nearby mountains.
“Gov. Brewer’s declaration of a state of emergency underscores the threat to public health and safety faced by Tombstone,” the court brief explains.
“The loss of Tombstone’s municipal water supply has caused a shortage of water for both consumption and fire suppression during peak demand. The resulting fire hazard is readily apparent from the fact that in December 2010 a devastating fire broke out in Tombstone’s 19th century wooden structure historic downtown district. The entire business district could easily have been lost.”