In a show down between the Obama Administration and the "Town Too Tough to Die," the U.S. Forest Service is refusing to allow the City of Tombstone to freely repair its mountain spring water infrastructure after forest fires, floods and torrential mudslides destroyed pipelines and catchments in Monument Fire of 2011. The Forest Service simply does not care that Governor Jan Brewer declared a state of emergency exercising "all police power vested in the state" to empower Tombstone to restore its municipal water supply. Not content with allowing forest fires to burn down some of the most beautiful land in Arizona, 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.
But more than the lives and properties of Tombstone residents and tourists are at stake in the historic town's ongoing legal battle with the U.S. Forest Service to restore its water infrastructure. Arizona's wildfire season is now underway with numerous dangerous wildfires being reported across the state. Tombstone is under contract with the Arizona State Forester to deliver water for suppressing wildfires; but that contract cannot be reliably fulfilled so long as the Forest Service blocks emergency repairs to Tombstone's Huachuca Mountain water supply.
The Arizona State Forester often supplies the U.S. Forest Service with needed water and equipment to fight fires on federal land. So, the irony is that in refusing to yield to Governor Brewer's declared State of Emergency authorizing Tombstone to restore its water supply, the U.S. Forest Service may find itself without the water it needs to fight wildfires this fire season. The federal government's violation of state sovereignty on a local scale now has statewide dimensions.
This latest turn of events shows the importance of vindicating the Tenth Amendment's protection of decentralized control over essentially local matters. When state and local governments are denied authority to respond quickly to local emergencies—which is what they are best at—inevitably larger interests will be threatened as well. Nothing good can result when the federal government presumes to command and control state and local government from Washington, D.C.
Furthermore, 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 federal overreach. Blocking the desert-parched and fire-prone City from freely restoring its municipal water supply is equivalent to signing its death warrant. No one can have any meaningful degree of autonomy from the federal government if such an existential threat is allowed to stand.
Thus, like Paul Revere, the City of Tombstone has been warning citizens and local governments across the Western States, "The Feds are coming!" And now the latest move by the Federal Bureau of Land Management proves that Tombstone has not been crying wolf. The U.S Forest Service's effective seizure of Tombstone's municipal water supply in the Huachuca Mountains appears to herald a bigger and much more comprehensive move by the federal government to seize water and access rights on federal lands throughout the Western States.
In April 2012, the Bureau of Land Management declared to the Arizona Department of Water Resources that the federal government holds senior water rights across much of Southeastern Arizona San Pedro River riparian watershed. The BLM's objection stakes the claim that water sources in the area cannot be used without the federal government's permission. This new federal policy not only defies decades of deference to and accommodation of state sovereignty over water law, but it throws a noose around Southeastern Arizona's neck, for which water is life.
The BLM's actions show that it is essential for the Goldwater Institute to vindicate Tombstone's 130 year old water rights. 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. If Tombstone fails in its effort to preserve its municipal water supply, which is essential to its existence, the floodgates of federal overreach will wash away what little sovereignty Arizona and the arid Western States still enjoy.
Unfortunately, the U.S. Forest Service got the drop on Tombstone in mid-May when the City's request for an emergency injunction was denied by Senior Judge Frank Zapata of the United States District Court. Emergency requests made just weeks later were then rejected by the Ninth Circuit Court of Appeals and Supreme Court Justices Anthony Kennedy and Clarence Thomas. Although normal legal channels are still open, and an appeal is pending, Tombstone is now riding the slow boat to an eventual court resolution.
Meanwhile the Cavalry is on the horizon. County and rancher organizations from around the Western States are gearing up to file "Friend of the Court" briefs in support of Tombstone's appeal. Three days after the denial of Tombstone's request for emergency relief from Judge Zapata, Congressman Jeff Flake dropped a bill entitled, the "Emergency Water Supply Restoration Act." The bill would allow state and local government to freely and fully restore water supplies in Wilderness Areas without interference from federal agencies during a State of Emergency. No doubt the bill will catch the U.S. Forest Service's attention. It may have an uphill battle in the Senate, but combined with the cutting edge efforts of the Goldwater Institute's posse of public interest attorneys, no one should count out the "Town Too Tough to Die."
There is also plenty of reason to believe that Tombstone will ultimately prevail. The Supreme Court is already familiar with federal overreach in Graham County, Arizona. In the famous case of Printz v. United States, the Court rejected efforts by the federal government to commandeer the Graham County Sheriff into implementing a federal gun control law, writing, "[t]he Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States." The Forest Service is openly flouting this principle of law.
By denying Tombstone free access to its own essential municipal property, the Forest Service is not just directly regulating the State of Arizona through its political subdivision; it is threatening to directly regulate Tombstone to death. Printz makes it clear that the Forest Service has no such constitutional power—not if the guarantee of state sovereignty means anything under the Tenth Amendment.
While Tombstone's court battle for life or death continues, Americans must stand with the historic town before federal intransigence and incompetence generates the next Katrina or worse. Victory could set an important precedent for communities throughout the U.S. that, for decades, have seen longstanding road, water, forestry and mineral rights impeded by the federal mismanagement and environmental bureaucracies. If Tombstone prevails, we will all be a whole lot safer—from natural disasters and tyranny.
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