Skip to comments.U.S. high court denies Tombstone water relief
Posted on 06/02/2012 9:12:38 AM PDT by SandRat
PHOENIX The chief justice of the U.S. Supreme Court on Friday rejected a bid by the city of Tombstone for an emergency order allowing it to immediately repair its damaged water supply in the Huachuca Mountains.
Without comment, John Roberts rebuffed the argument that the city is likely to suffer irreparable damage if it does not get to start work soon. Roberts did not explain his decision.
But attorney Nick Dranias of the Goldwater Institute, which is representing the city, said he is not giving up. Dranias, using a procedure allowed by the high court, is now asking Justice Clarence Thomas for the same relief.
Fridays action leaves intact a ruling last month by U.S. District Court Frank Zapata who denied the citys request for a declaration it is entitled to immediate access to the land where the springs supplying much of the city water are located. City officials said they were entitled to make the necessary repairs following last years Monument Fire without having to first get permits from the U.S. Forest Service.
The city is seeking review of that decision to the 9th U.S. Circuit Court of Appeals. But Dranias said that could take time Tombstone does not have, which is why he wants high court intervention.
Every day that goes by, the city of Tombstone could burn to the ground, he said.
Dranias acknowledged the city still has a water supply, including an underground well and water from two of the springs. But he said that is not enough to handle an emergency.
The city of Tombstone needs every drop of water they can get because its water systems are absolutely inadequate to handle any sort of major fire, he said.
Zapata rejected that argument.
It appears that (the citys) water from the Huachuca Mountains has been substantially restored, the judge wrote. He said Tombstone currently has access to sufficient and safe water between its wells and the Huachuca water.
And Zapata called the citys claims of a water emergency overstated and speculative.
Dranias, in his petition to Kennedy, said the city has only one operating well that has not been contaminated with arsenic.
Under these circumstances, Tombstone obviously needs to permanently restore every water source it owns as soon as possible for truly adequate fire suppression capacity and potable water, he wrote.
But attorneys for the U.S. Forest Service are questioning that claim of ownership.
The Monument Fire burned much of the Huachuca Mountains where the springs that feed Tombstones water supply are located.
But the real damage came later when record rains caused massive mud and rock slides.
With no vegetation to absorb the runoff, huge mudslides forced boulders some the side of Volkswagens to tumble down mountainside crushing Tombstones waterlines and destroying reservoirs, Dranias wrote in his brief to the high court.
Gov. Jan Brewer declared a state of emergency in August, providing funds for repair. Based on that, the city said it rented earth-moving equipment and vehicles to make repairs.
Dranias said, though, while federal agencies allowed the city to repair two of the springs they have disputed Tombstones entitlement to restore the remaining 23.
And since March 1, 2012, defendants have refused to allow Tombstone to use anything other than hand tools to restore any part of its water system, he wrote.
Part of the issue is related to the question of whether permits and review are needed to ensure the machinery will not cause environmental damage. Dranias dismissed that as meaningless.
Its a moonscape up there, he said of the area the city wants to repair.
And Dranias said documents obtained from the U.S. Fish and Wildlife Service show no evidence of any animals actually living in the immediate area.
The bigger issue, though, is whether Tombstone is actually entitled to the water in the national forest.
City manager George Barnes said Tombstone has a legal claim based on historic water law.
After being established as a village in 1879, it was given authority, through the Huachuca Water Co., to come up with a water supply. Based on that, village officials over the years located multiple springs on public lands in the Huachuca Mountains, 26 miles across the San Pedro Valley.
Barnes said the way the law worked at the time, the city, which now owns the water company, was entitled to acquire the water by appropriating it for use.
He said that automatically included access to the land where the water is located.
He acknowledged the law has since been changed, with someone actually required to obtain title to the land first to access the water.
But Barnes said the citys claims were legally valid when made and remain legally valid today.
The federal government said none of that gives the city unfettered right of access.
What Tombstone ignores is that its alleged vested rights to the extent they exist are rights of use in federally owned land that derive solely from authority granted by Congress, wrote Joanna Brinkman, an attorney for the U.S. Department of Justice in its legal papers opposing the citys bid for immediate access.
And she said Congress, in turn, has given the authority to the Secretary of Agriculture to make rules and regulations about the occupancy and use of national forests.
Even if the city has some sort of vested right, Brinkman wrote, that is still subject to reasonable regulation.
Zapata, in his ruling last month, did not address the issues of ownership or water rights. Instead he said the city was effectively asking him to grant it title to federal land, something he said he is not empowered to do.
He also rejected the citys argument that the actions of the federal government in regulating activities on federal lands amount to what Dranias called commandeering Tombstones water supply.
I KNEW it!!
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Just out of curiosity, why can’t the city or state take the lands through eminent domain? They have a legitimate public use, surely one that trumps any argument the Feds could come up with to eminent domain them back. Let’s have a 10th Amendment resurgence.
This may be the beginning of another Old West Water war.
It's federal land.
And 26 miles from Tombstone. I doubt the city's ability to reach that far even if the land were privately held.
Federal land should be an oxymoron.
Practically speaking, Tombstone needs to address the problem by using its arsenic-tainted non-potable water. A simple, two stage filtration with a type of iron, which binds with arsenic, and sand, which filters out the bound arsenic.
While it would not reduce arsenic to potable water levels, which are tiny under EPA law, it could be used for many other things, especially emergency purposes.
It sure was: Chinatown 1974
This goes back over a 100 years, when the nearest and most easily obtainable water supply was in the mountains across the valley, which just happened to be 26 miles away.
It was not at all unusual in the 1880s for large ranchers to claim water rights on sources widely scattered across a few hundred square miles of range-land. The Hash Knife was one such ranch, in northern Arizona.
The Feds claim that Tombstone no longer owns the water sources they’ve owned for over 130 years.
And since March 1, 2012, defendants have refused to allow Tombstone to use anything other than hand tools to restore any part of its water system, he wrote.
Then get started with hand tools. If you have to, use migrant workers.
Oh, I can only hope I live to see that day....!!!
They are planning a work day on Friday & Saturday, next week (8-9 June). Last I heard, they are planning on moving a lot of dirt to build diversion berms and repairing crushed valves on a pair of water pipelines.
The Tombstone Shovel Brigade is going to do just that next weekend.
Want to help?
You didn't see Rango did ya?
Roberts aside I believe this to be part of the Democrat Administrations war on Arizona.
Roberts probably doesn’t want involvement due the upcoming announcement of the rejection of Obamacare, and the potential of being accused of political favoritism. It’s easier for him to stay out of the picture on this one.
It’s getting real ugly out there.
Federal, schmedral. I did not see an exemption in the 10th Amendment for the Feds. Quite the contrary, where is the accumulation of Federal Lands an enumerated power? Not in Article II, Section 8. If the foundation of Theodore’s Federal Lands system is the General Welfare clause, then I think the State has equal footing to claim the land for a more cogent general welfare purpose, assuming the State Constitution allows it. I will also note that the Amendment V Takings clause provides for compensation only for the taking of private property. I say it is worth a shot, even if only to get the Feds off the dime.
Yes, and the most dangerous situation to be in back in those days was to be a homesteader or small farmer or rancher and have a good spring or other good supply of water on your land- many were murdered in cold blood so their water could be taken by large ranchers.
States really need to exert their rights and get the feds out of their business. It is silly for the feds to deny Tombstone the right to repair a water source they have used all these years.
There is supposed to be an underground river that flooded the mines around Tombstone, I guess that water is contaminated from mining but couldn’t they tap into that for fire fighting and non-drinking purposes?
Cold you cite an example of people being murdered for their water/springs by large ranchers?
Property rights ping!
Thank You, Sir!
This one is getting noticed, I hope.
John Stossel ‘liked’ it on Facebook.
It is somewhat ironic that the Silver mines around Tombstone had to be closed because they flooded with water...now Tombstone needs more water.
That's the first thought that popped into my mind, too.
The property rights/environmental ping list is likely out of date.
Any freeper that would like to be added or subtracted please send a Freep mail.
>> “It’s federal land.” <<
Constitutionally, “federal land” doesn’t exist beyond the District of Columbia, and the specified military reservations.
There is no constitutional provision for the Fed Gov to hold title to any other lands.
Please don't let the 'legendsofamerica' web site address fool you. This feud was probably the bloodiest in Arizona history and is well documented. You can still go to Pleasant Valley, north of Roosevelt Lake, and see the historical markers that tell the story.
From the link:
Well, in the interests of being accurate to a fault, Article I Section 8, the next to last clause, allows Congress to purchase lands (with the consent of the State in which they be) "for the erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings." That surely sounds military in original intent and not authorizing a National Park System.
But I think we're on the same page here, it is time for States to aggressively push back on the bloated central gubermint and assert their rights under the 10th Amendment.
Tombstone should learn a lesson from Los Angeles:
Your insane, nasty, vindictive, leftist dominated Federale Gov’t hard at work.
There is another case before the Supreme Court regarding water rights and whether or not the Indians have the right to ALL the water that is not specifically deeded to cities or individuals.
It started in WA state and lost in state court on appeal and is now at the Supreme Court. I’ve heard that the tribes in AZ are making the same claim. Sooo, maybe this case has to wait until the other cases are settled.
The goal is to give the tribes control of all the water in the west, including the storm water and they will then dole it out as they see fit and charge everyone for the water, including private well users.
The mines flooded after the quake in 1897 that caused the San Pedro River to be an intermittent river. Then in the 1970s and since the EPA and enviro Nazis along with the GooberMent have been in the way of doing anything wise.
The court has has already held that water rights for the Klamath Tribes “carry a priority date of time immemorial. “ Adair, 723 F.2d at 1414. http://users.sisqtel.net/armstrng/AdairIII.htm
(The Klamath Trible is an Oregon tribe that ceded lands to the US by ratified treaty. There are no CA tribes whose treaties were ratified by Congress. Non-pueblo reservations were created by Executive order only. The Court has long ago ruled that their aboriginal rights were extinguished under Mexico.)
Don’t want to hijack the Florida Voting Thread, so I thought I’d ping you to this one.
The Tombstone Shovel Brigade is organizing a work session at the springs in Miller Canyon next weekend. They’re also taking donations at their web site - see post 16.
I grew up on the old Hashknife ranch mentioned in an earlier post. All the natural sources of water on the place had the remains of an old homestead when I was a kid. There was a story about what happened to each family- most were harassed and sold out, some were accused of rustling cattle and hung or shot. One was decapitated with barb wire. These were stories told to me 50 years ago by elders that knew the history.
I am a great supporter of ranchers, lived on ranches all my life- but the huge ranchers back in the day used their money and might to get rid of the little guys. That is how they acquired enough range and water to run thousands of cattle. It is a well known part of history if you spend time on some of these large ranches.
My father-in-law’s grandfather was murdered for a spring on his property. Those that took part in that were big ranchers in the area; they accused him of trading fresh horses to outlaws as the reason for killing him, but they acquired his water when his widow moved with the children. Pretty convenient.
The government is also to blame, they encouraged homesteading in many places where it was not possible to support a family on a homestead size property. People homesteaded on available water of course- picked the best land, then were usually starving along for a while and someone would bring in a huge herd of cattle. The new rancher had to have the water to make his plan work and the only thing in the way was the homesteaders. It was a more practical use of the land to run cattle over large areas than to homestead which justified the “by any means” thinking of the big guys. This played out all over the West.
When you read the history of range wars the claim is the little guys were always rustlers or in some way outlaws. That is the justification history gives for the murders. If you get down to individual stories it seems odd that the little guy always had a prime piece of property with water that the big guys needed.
That is interesting, I didn’t know about the quake or that it changed the river. I lived on a ranch near the river at one time and in that brush by the river there are huge cracks in the ground that could easily swallow a horse and rider or more. Scary place to ride and gather cattle I can tell you. That is why there were so many wild cattle on that river for years. We assumed they were earthquake cracks but thought the quakes happened long long ago, never knew there was a more recent one.
If holder sends any of his boys to Tombstone, they can become "part of the tour".
No kidding. And the water wars are still going on here.
One canal was not enough. They had to build a second one and then begin pumping the water out of the ground to squeeze every drop out of their water colony up north. I'll bet everyone up there is still forbidden to even speak the name: Mulholland.
Is it true that before you colonists can take a bath, a shower, or even a drink of water up there, you have to get written permission from the mother country, the LADWP.
and geologistssay that they come in 100 yr cycles, so we are over due, Geologists are also speculating that another one will endup pushin the plates back together forcing the river flow again as it had before 1897.
And the Center for Bio Diversity denies that the 1897 Quake ever happened.
Maybe part of the Shootout at the OK Corral Part 11.
thank you very much for your detailed replies. I know well that the big rancheas here in north Texas, the 666 and XIT and others, were pretty ruthless.
Anyone that denies that country has earthquakes needs to go for a horseback ride near the river, just as the brush opens up so they can see them in the open- those cracks are pretty convincing.
I wrote about something like that.
I, too, want to see that day.
...and Robin Silva the PHX Dochoo’s Pres. of Center for Bio Diversity and Kerin Suckling the Tuc mouth piece of the CBD will deny it - the Dumb A**es.
Fine. The mines below Tombstone are flooded. Drop a hose in, and use that water as necessary to put out fires. Then let the Feds try to complain the city was using arsenic laden water to save the town.