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Another Tombstone showdown: The town vs. the federal government

November 18, 2014

By Caroline May, The Daily Caller

Wyatt Earp might be long gone, but there is another showdown underway in Tombstone, Ariz. — this time between the town and the federal government.
The “Town Too Tough to Die” is currently having to rely on two ground wells (one of which has been compromised by arsenic) to meet the water needs of its 1,500 residents and more than 400,000 annual visitors because the federal government will not allow the town to repair the waterlines damaged and destroyed during the 2011 Monument Fire.

> Learn more about Tombstone v. United States here

George Barnes, Tombstone’s city clerk and manager, explained to The Daily Caller that since many of the pipelines are in a “wilderness area,” the U.S. Forest Service will not allow the mechanized equipment needed to fix the waterlines into the area for environmental reasons.
“We began working with the Forest Service but then we realized and found what an incredible boondoggle that could be, even though we are very confident we have a special status because our rights there pre-existed the Forest Service and even the BLM [Bureau of Land Management]. We were there long before anything and all we are asking is to fix our stuff,” Barnes said.
In the wake of the Monument Fire, in August 2011, Ariz. Gov. Jan Brewer declared a state of emergency for Tombstone and authorized $50,000 to help cover the cost of repairing the water system.
“Tombstone draws 50 to 80 percent of its water supply from springs in the Monument Fire burn area,” the governor’s office said. “Erosion and debris flow caused by summer storms damaged the city’s aqueduct and water transmission system.”
The town is still starved for water.
Early in 2012 the city initiated litigation against the Forest Service in order to gain access to the waterlines. In mid-February, the non-profit, Phoenix-based Goldwater Institute took lead council.
“The Tombstone case is the ultimate showdown between state sovereignty and federal overreach,” Nick Dranias, a member of the Goldwater legal team told TheDC. “The reason why I say that is the case involves the federal government, through the Forest Service, threatening the very existence of the historic city of Tombstone and threatening the literal health and safety of its residents and tourists.”
According to Barnes, the city is especially worried about the prospect of fires, as there are concerns about not having enough water to extinguish building fires in the historic town.
“We have two days supply — that doesn’t allow for a building fire, a well-pump failure; it doesn’t allow for much of anything. We’ve been walking on egg-shells for six months,” he said.
The town and Goldwater Institute are waiting for a decision from U.S. District Court Judge Frank Zapata, who will rule on whether to compel the Forest Service to allow Tombstone to get up into the Huachuca Mountains and repair its water infrastructure with all the necessary equipment.
There will be appeals.
“From this point forward, depending on how that decision goes, we will be pursuing or defending — probably fast-paced appellate work in the 9th Circuit Court of Appeals and perhaps even directly to the U.S. Supreme Court on an emergency basis, and all that could take place in the next two to three months,” Dranias explained.
A Forest Service spokesman told TheDC that the agency never comments on pending litigation.
In the meantime, the town continues to wait.
“The issue here goes beyond our traditional water rights,” Barnes said.
“It goes into a pretty gross overreach by a federal agency in a declared state of emergency. The governor here has declared a state of emergency for us specifically, and the federal government — in this case the Forest Service — is saying, ‘That’s great, yeah there is human life at risk, but don’t worry — we have the spotted owl.’ And I love the spotted owl, but come on!”
Ironically, according to Barnes, the wildfires and mudslides destroyed the owl’s — and most other animals’ — habitats.
Dranias concluded that the case will set an important standard for the rest of the West.
“This case has great significance even beyond the 10th Amendment issue of the federal government regulating a political subdivision of the state to death,” he said.
“It has great significance to the Western states, many of which are arid and depend entirely upon the federal government respecting established water rights to the extent that the U.S. Forest Service is undermining certainty and the reliability of water rights that have predated the admission into the union of the Western states. They are potentially undermining the entire economy of the Western state region.”




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