I KNEW it!!
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.
Friday’s action leaves intact a ruling last month by U.S. District Court Frank Zapata who denied the city’s 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 year’s 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 city’s) 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 city’s 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 Tombstone’s 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 Tombstone’s 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 Tombstone’s 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.
“It’s 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 city’s 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 city’s 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 city’s argument that the actions of the federal government in regulating activities on federal lands amount to what Dranias called “commandeering” Tombstone’s 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
Thanks, Sandy!
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.
Ping Lists?
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.
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