Historic Tombstone, Ariz., long has been known as the “Town Too Tough To Die,” but that was before it encountered the Obama administration, which has refused permission for the town to repair the water system in the nearby Huachuca Mountains from which it has drawn H2O for more than a century.
That means the town is living on only a fraction of the water supplies to which it is accustomed, drawing only from several wells, some of which are poisoned by arsenic, town representatives say.
The mountain collection system was destroyed when a forest fire ravaged the hilltops last year and then monsoon rains washed mud and boulders across the collector channels and pipelines.
Now, a federal judge has affirmed the Obama administration’s position, and the Goldwater Institute, working to protect the town’s rights, says it already has filed an emergency appeal of the decision.
“Requiring Tombstone to seek federal permits to repair its municipal water supply is like demanding a federal permit before the city can make repairs to a fire truck,” said Nick Dranias, Goldwater Institute director of constitutional studies and lead attorney in the case.
“Under the Tenth Amendment, the federal government has no power during a state of emergency to stop a local government from repairing its own municipal property, which is essential to providing safe drinking water and adequate fire protection,” he said.
The institute is coordinating the fight with the federal bureaucracy over the property rights Tombstone holds to 25 mountain spring heads and all of the water rising and flowing in two canyons in the Huachuca Mountains.
Bundled with those rights are access roads and pipeline rights of way.
The institute said: “Until last year, the U.S. Forest Service recognized and respected those rights, which date back to the days of Wyatt Earp. Today, the federal government denies they exist and refuses to allow Tombstone to restore more than three of its spring water catchments.”
The decision came from U.S. District Court Judge Frank Zapata, who refused the town’s emergency request to restore its Huachuca Mountain municipal water supply.
The institute explained that despite “the burial of water reservoirs and water lines under boulders the size of Volkswagens and as much as 12 feet of mud, the court denied Tombstone’s request to allow it to use mechanized and motorized equipment to restore its water system.”
“In denying the request, the court ruled that the town did not exhaust efforts to obtain federal permits to use the equipment despite nine months of continuous efforts by the town to secure the U.S. Forest Service’s cooperation. The court was not moved by a state of emergency declared specifically for Tombstone by Arizona Gov. Jan Brewer,” the institute said.
Christina Sandefur, Goldwater Institute attorney and litigation team member, said Tombstone “is making a stand for state sovereignty, property rights and public health and safety against federal overreach.”
“We all have a stake in stopping the Forest Service from killing the ‘Town Too Tough To Die,’” she said.
Dranias said that if the federal government can deny Tombstone’s water rights, “then nobody can rely on their water rights.”
“Because water is the lifeblood of Western states, the federal government is threatening jobs and economic growth across the West, not just the lives and properties of Tombstone residents,” he said.
The organization recently explained that Tombstone is just one of many cases in which the federal government is trying to take over water rights. The institute said it’s part of a trend in Washington to remove public land and resources from the reach of the public.
“The Goldwater Institute is asking the court to recognize that state and local governments have sovereignty under the Tenth Amendment to freely respond to natural disasters without being forced to cut through federal red tape, and also to enforce property rights enjoyed by both citizens and local governments on federal lands,” the organization’s report said.
The institute earlier documented the developing attack on Western states in a letter that contradicts longstanding federal practice by asserting a claim to water in arid Western states, such as Utah, Montana, Colorado, New Mexico and Arizona that supersedes all other authorities, including decisions by state water courts.
“Federal water rights are entitled to a form of protection that is broader than what may be provided to similarly situated state law rights holders,” stated a letter from Julie Decker, the deputy state director in the U.S. Department of the Interior to the Arizona Department of Water Resources.
The letter was objecting to state plans to do a routine “Designation of Adequate Water Supply,” which reviews water resources, rights and uses when changes are proposed.
Decker’s letter said water is not “legally” available for some users who may want to develop property in the area, because “the expressed federal reserved water right created by Congress is senior to all junior water users who initiate uses after the date of the establishment of the reservation.”
Dranias, who holds the Clarence J. and Katherine P. Duncan Chair for Constitutional Government and is director of the Joseph and Dorothy Donnelly Moller Center for Constitutional Government at the Goldwater Institute, called it an “existential threat to the Western states.”
“Water is the lifeblood of the arid Western states. Development would not exist without pretty intensive development of scarce water. That is only possible with the incentives created by ownership,” he said.
Without assurances that water is available, there is no possibility that economic development can occur, he said. In fact, some states have provisions, such as in Colorado, saying a homeowner cannot occupy a building unless a water right is documented for the structure.
He said it was only a few decades back that the U.S. Supreme Court ruled in a New Mexico case that the federal government deferred to states on water rights. Now, however, the policy is being repudiated, threatening virtually every water user west of the Mississippi River.
Tombstone, which can document through federal letters its ownership of the rights back 130 years, is in a far superior position to most water users in the West. Dranias told of Arizona ranchers who own specific spring-fed water rights but only leased rights-of-way for pipelines.
The federal government is demanding as a condition for renewing the pipeline permits that ranchers cede to the federal government all water ownership and rights, he said.
The radical “green,” or ecological, element appears to be playing a role, Dranias noted.
As part of the litigation over Tombstone’s water, he said, emails to the U.S. Fish and Wildlife Service from various activists cheered the fires and floods that destroyed Tombstone’s water supply system.
“Hooray, the water’s running free again,” he said the emails expressed.