Tombstone versus the United States

Rush mentioned this today...but the news is actually five days old:

From the Tucson Citizen: Tombstone versus the United States
Tombstone, Arizona, “the town too tough to die” just might be killed off by the US Forest Service. Tombstone gets most of it water supply from springs in the Miller Canyon Wilderness Area in the Huachuca Mountains about 25 miles west of the town. This water supply dates from 1881 when it was first developed by the Huachuca Water Company. Tombstone bought the pipeline and water rights in 1946.

In the early summer of 2011 the massive Monument wildfire denuded the eastern part of the Huachuca mountains. With vegetation destroyed, subsequent heavy monsoon rains caused flooding, mud slides, and debris flows that buried springs and crushed waterlines, thereby shutting off the main water supply to Tombstone.

Since that time, the City of Tombstone has tried to repair the damage, but has been stymied by a very obstinate Forest Service who will not allow heavy equipment into the wilderness area, even though the water rights pre-date establishment of the Wilderness Act.

According to the Goldwater Institute, who are suing the US Forest Service on behalf of the City of Tombstone, “Tombstone’s pipeline is under 12 feet of mud, rocks and other debris; while in other places, it is hanging in mid-air due to the ground being washed out from under it. In response, federal bureaucrats are refusing to allow Tombstone to unearth its springs and restore its waterlines unless they jump through a lengthy permitting process that will require the city to use horses and hand tools to remove boulders the size of Volkswagens.”

This is a case where bureaucratic regulations make no common sense and put citizens in danger even in spite of the fact that the City of Tombstone and the governor of Arizona declaring a state of emergency. The Goldwater Institute says, “The 10th Amendment protects states and their subdivisions from federal regulations that impede their ability to fulfill essential health and safety functions. Just as the federal government cannot regulate the States, it cannot regulate political subdivisions of the States, like the City of Tombstone. And despite what power it may claim, the Forest Service certainly has no power to regulate Tombstone to death.”

As water law expert Hugh Holub once wrote: “Though the water may originate on National Forest lands, Bureau of Land Management lands, and other federally managed lands, the rights to that water belongs to the farms and ranches and cities.” It seems that the Forest Service is ignoring that right.

The Forest Service has been portrayed as the villain here and perhaps they are. But maybe, they too are trapped by an inflexible process intrinsic to environmental laws such as the Wilderness Act and the Endangered Species Act, a process that makes timely, common sense responses to emergencies very difficult if not impossible.