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Showdown at the Red Tape Corral

November 14, 2014

In a showdown between the Obama administration and the town made famous by the gunfight at the O.K. Corral, the U.S. Forest Service is refusing to allow historic Tombstone, Ariz., to restore its municipal water supply after it was destroyed by torrential floods and mudslides in the summer of 2011.

Tombstone’s Huachuca Mountain water sources and pipelines are located in the federally-protected “Miller Peak Wilderness,” and so the Forest Service is ignoring a state of emergency declared by Arizona Gov. Jan Brewer to authorize immediate restoration work.
For months, the Forest Service has dragged its heels before approving any work. And since March 1st, the Service has restricted Tombstone to using hand tools and horses to avoid disturbing nesting sites of the Mexican Spotted Owl.
A year later, because of the Forest Service’s interference and delay, only three of Tombstone’s 25 mountain spring water sources have been restored. The Forest Service has commandeered 88 percent of Tombstone’s Huachuca Mountain water system.
The Forest Service denies that it is choosing to protect spotted owls over people, instead claiming that it is merely following congressional orders. It points to the Wilderness Act of 1964 and the Arizona Wilderness Act of 1984 as justification for its behavior. But Congress exempted Tombstone’s pre-existing water system from those laws.
Water rights are the foundation of the economies of the arid Western states, and their destruction could easily undermine the certainty and stability needed for economic recovery and growth throughout the West. Tombstone’s municipal water system is founded on water rights that date back to the days of Wyatt Earp and Doc Holliday.
In reality, the Forest Service is claiming power that it does not have — like so many other executive agencies in the Obama administration. The motivation for this power grab is far less clear than its effects. The Forest Service is forcing the town’s 1,562 residents to live with two constant threats — one is that they will drink water poisoned with arsenic. The other is that an uncontrollable fire could destroy their city’s historic downtown.
All of Tombstone’s alternative well-water supplies are arsenic contaminated. Only one well produces water with arsenic levels safe enough to drink. If this last well fails, there will not be enough water to drink — let alone to fight fires. The fear of fire is real in Tombstone. Its downtown is a tinderbox of 19th century wooden structures, which nearly burned to the ground in the Six Gun City fire of December 2010.
In short, by denying Tombstone the freedom to fully repair its essential municipal property, the Forest Service is threatening to regulate the town to death. This violates the constitutional principle enforced by the Supreme Court in Printz v. United States that “[t]he Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States.” It also flouts the Court’s declaration in Alden v. Maine, that the Constitution guarantees the ‘States’ continued existence.”
If the federal government can so freely threaten the very existence of Tombstone and the economies of the arid Western states, then no citizen, state or local government will be safe from federal abuse. That’s why the Goldwater Institute is leading Tombstone’s lawsuit against the U.S. Forest Service.
While Tombstone’s court battle continues, Americans must stand with the “Town Too Tough to Die.” A victory would set an important precedent for communities throughout the United States which, for decades, have seen their autonomy denied and rights violated by the federal government. If Tombstone prevails, we will all be a lot safer from federal overreach.



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