By Ron Arnold, Washington Examiner
It's bad enough when your town has to worry about high mountain forest fires. It's even worse when the scorched earth left behind gives way to monsoon rains that drive mud and boulders smashing into your municipal water pipeline system. And it's much, much worse still when President Obama's Forest Service won't let you repair the damage, ostensibly because that might disturb the wilderness.
Even now, there is a cluster of new wildfires glowering through the sullen clouds on the same peaks near Tombstone, Ariz., population 1,400. Tombstone is a tourist favorite, the site of the legendary Gunfight at the O.K. Corral. It calls itself "The Town Too Tough to Die" -- and, these days, one might see stationed at the end of Toughnut Street its steely-eyed lawyer, braced for the Showdown at the H2O Corral, as CNN tags the pending water fight.
Nick Dranias, of the Phoenix-based Goldwater Institute, is the city's lead attorney in a life-or-death lawsuit to vindicate its 130-year-old water rights against the grasping power of the United States Forest Service. The institute is representing Tombstone at no cost.
Dranias said the case is straightforward. "The U.S. Forest Service is refusing to allow the city of Tombstone to fix its mountain spring water system after it was destroyed," he said. "Blocking the desert-parched and fire-prone city from freely restoring its municipal water supply is equivalent to signing its death warrant."
At first, Tombstone officials watched the Forest Service dawdle and perform a few measly repairs after the Monument Fire of 2011. "We could have had a quicker result," says Rep. Jeff Flake R-Ariz., "but the Forest Service was slow to react. It was slow, slow, slow."
Flake wrote to Forest Service Chief Tom Tidwell expressing concern over the repair's "limited progress" and urging him to "work cooperatively" with the city to "ensure the necessary repairs are made expeditiously."
Rachel Thomas, a rancher near Sierra Vista and a constituent, said, "Mr. Tidwell didn't have the courtesy to respond to Rep. Flake. He gave it to a third-string deputy with no grasp of the dire situation. I think Mr. Tidwell was deliberately being disrespectful and insulting to my congressman."
When Tombstone tried to take its own bulldozers and pipe-laying crew to finish repair work, the Forest Service locked them out, saying the job site lay within the National Wilderness Preservation System, where motorized equipment of any sort was forbidden. This was getting desperate.
The city then requested an emergency injunction from the U.S. District Court but was refused.
Republican Gov. Jan Brewer declared a state of emergency, exercising "all police power vested in the state" to empower Tombstone to restore its municipal water supply.
Flake introduced the Emergency Water Supply Restoration Act, which would allow state and local governments to restore water supplies in Wilderness Areas without interference from federal agencies during a state of emergency. The bill faces a hostile Senate, and the Forest Service is unmoved.
The Goldwater Institute's Dranias said, "The Forest Service is now risking the lives and properties of Tombstone residents and tourists due to the loss of adequate fire suppression capabilities and safe drinking water."
Dranias emphasized the town's national significance: "[I]f the Forest Service can effectively seize Tombstone's water rights during a state of emergency, no state or local government will be safe from federal overreach. The growing federal stranglehold over water rights in Arizona is a direct assault on state autonomy. There is perhaps no better way for the federal government to quell restive Western states, like Arizona, that dare to resist federal immigration, health care and unionization policies."
Because the case raises constitutional questions about the relationship among local, state and federal governments -- issues of power and authority -- Dranias thinks it may go all the way to the U.S. Supreme Court.
Examiner Columnist Ron Arnold is executive vice president of the Center for the Defense of Free Enterprise.