Tombstone versus the United States (Water...again)

[Bebe]

by Jonathan DuHamel
Apr. 12, 2012, under Politics, water

http://tucsoncitizen.com/wryheat/201...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.

Cool little town filled with awesome Americans

[Tech Tim]

Bump for Bebe.... Surprised that no one had even commented on this.

The USFS and BLM need to be taken back a few notches by the towns, cities, counties and their residents that are taking it in the shorts with the abuse of power that is being wielded against them.

Thanks for posting this up Bebe.

[Cameraman]

Originally Posted by Bebe

by Jonathan DuHamel
Apr. 12, 2012, under Politics, water


in spite of the fact that the City of Tombstone and the governor of Arizona declaring a state of emergency.

Couldn't the Governor have the National Gaurd, escort the necessary consruction crews into the Wilderness Area, in a state of emergency?

[Bebe]

Jurisdiction is a funny thing. Because, regardless of which politician or governmental organizations support you, not many have the ability to assist.

I'm thinking to keep it local, the Sheriff could say he will not enforce. If I were he, I would just go up there and do it, get the ticket and then be the town hero.

Seriously we have an imbalance when existing water systems cannot be repaired because of a measly piece of paper - which Congress probably pushed through thinking it would be for the good of the people.

That's what happens when laws are passed absolutely, no caveats, no what ifs considered. This failure is owned by local politicians who either volunteered the area or supported the designation. How does one correct it? How does one refine existing laws to accommodate previously unconsidered or unrealized adverse effects on the Human condition?

And who or whom - in the Forest Service is making the conscious decision to destroy a HUMAN community by depriving them of one of thee most basic human needs?? Just who do these "people" think they are?

Isn't depriving a human of water criminal? Where does the buck stop with this decision - how do we hold them responsible?

[Tech Tim]

Originally Posted by Bebe

I'm thinking to keep it local, the Sheriff could say he will not enforce. If I were he, I would just go up there and do it, get the ticket and then be the town hero.

“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.”

I agree with you Bebe, the city needs to go do the work and if the USFS or any other Feds show up, the sheriff needs to threaten to arrest them (and do so if needed) for whatever charges could be brought against them. Not an armchair lawyer, so don't know what charges could be used, but there has to be something.

[jpnjim]

Something is backward when unelected federal alphabet soup departments have more power in states than the states themselves.

I wonder what George Washington would have thought about unelected, omnipotent government departments like the EPA, IRS, FBI, CIA, ATF, DHS, NSA, TSA, etc etc.

[surveyboy]

is it possible that because of being sued so many times for dumb thing by certain groups, which have now tied the hands somewhat of agency's like the FS and BLM, that its part of the reason things like this happen?

[Anonymous1]

heres another link:

/forum/land-use-issues/1019741-usfs-zombies.html

http://azstarnet.com/news/local/tomb...d19050e98.html
Tombstone pushes for quick action to restore water source

Tom Beal Arizona Daily Star | Posted: Thursday, November 3, 2011 12:00

Greg Bryan/Arizona Daily Star
Smoke rises from the Monument Fire billows from a steep ridge of Copper Canyon on the southern end of the Huachuca Mountains as seen from Montezuma Pass along Montezuma Canyon Road in Coronado National Memorial near Sierra Vista, Ariz., on Sunday June 19, 2011.



Related Galleries

Photo gallery: A look back at the Monument Fire
(29) Photos


Photo gallery: Greenery rebounds after Monument Fire
(15) Photos


The "Town Too Tough to Die" says it doesn't need any stinkin' permits to make emergency repairs to its water source in a wilderness area in the Huachuca Mountains.

Tombstone City Clerk/Manager George Barnes said the town tired of waiting for the U.S. Forest Service to give permission to unearth springs and pipes in the Miller Canyon Wilderness Area that were buried in debris after the Monument Fire this summer.

On Tuesday, a crew of Tombstone employees headed up the dirt road into the wilderness with heavy equipment.

"We were met by a herd of folks," said Mayor Jack Henderson.

The Tombstone crew was armed with paperwork regarding their water rights and an "irrevocable federal right of way" that predates the establishment of national forest and wilderness areas in the Huachucas, said Barnes.

Officials from the Forest Service and other agencies told city officials they wouldn't be cited but "were in violation of the Wilderness Act," said U.S. Forest Service spokeswoman Heidi Schewel.

The Tombstone crew backed off and attended a meeting at Forest Service headquarters in Hereford where they were promised speedy action.

Permission from the regional forester is needed to operate heavy equipment in wilderness, Schewel said. "We're trying to expedite a process that usually takes weeks to months. Everybody is trying to line up to help the city of Tombstone."

The springs in Miller and Carr canyons were first developed in 1881 by the Huachuca Water Company. Tombstone bought the pipeline and water rights in 1946.

Since June, Tombstone has relied solely on water from city wells to supply its 700 customers. One of those wells is close to EPA limits on arsenic.

Barnes said it costs the town $10,000 to $12,000 a month to rent equipment and pump water to replace the Huachuca springs.

Normally, the system is fed by gravity.

Water flows from five springs in Miller and Carr canyons to a low point at the San Pedro River. At that point, the line is charged with up to 1,400 pounds per square inch of pressure, Barnes said, enough to bring it uphill to Tombstone's 1.2 million-gallon reservoir.

That reservoir now contains a two-day water supply, said Mayor Henderson. "If we have a major fire, we don't have the water to fight it," he said.

The Forest Service can allow heavy equipment in wilderness but it must follow a "minimum requirements decision guide" that will "preserve wilderness character," said Schewel.

That process addresses whether an action is necessary and how it can be accomplished with minimal activity, she said.

Barnes said he received a call Friday from Southwest Regional Forester Corbin Newman, who assured him the decision would be made in "a few days."

Henderson said Tombstone wants to make emergency repairs, using $50,000 provided by the state. It will take about a month, he said, and the town wants to finish up before snow makes things more difficult.

Heavy equipment is needed, Henderson said. Some of the pipe is 10 feet in the air and some is buried in 10 feet of rubble.


Contact reporter Tom Beal at tbeal@azstarnet.com or 573-4158.

Originally Posted by Jeff Knoll

States rights vs federal Govt, is the powerful tool that can wake a sleeping giant of citizens across this country. Keep spreading the word about how the feds are affecting the lives of its citizens and just maybe we can educate the population in the East that our western states are under attack.

Thanks for sharing.

It appears to be a great opportunity to demonstrate who "drives a bulldozer through the National Forest every year." And yet denies the RIGHTS of the citizenry.


National Park Week, April 21-29, would be an awesome opportunity too!
http://www.nps.gov/npweek/
Anyone have anything for the national media to cover?


Maybe it's time to take the gloves off? The dog that wins the fight is the dog you feed the most.

[Bebe]

More on Tombstone Az...
http://frontpagemag.com/2012/05/01/o...B+FrontPage%29

Obama Administration vs. Tombstone

Posted By Eric Burns On May 1, 2012 @ 12:06 am In Daily Mailer,FrontPage | 19 Comments

The latest chapter in the Obama administration’s war against state sovereignty and the state of Arizona pits the town of Tombstone against the United States Forest Service. Tombstone is suing the U.S. Forest Service over that agency’s refusal to allow city officials to repair damaged water transport infrastructure in the nearby Huachuca mountains. The Forest Service’s refusal to allow city workers access to damaged reservoirs, pipelines, and pumping stations, has cut Tombstone off from 50 to 80 percent of its water supply; leaving town residents and tourists dependent on two wells for water, and the town acutely vulnerable to fire. In addition, the water in one well is contaminated with arsenic.

Tombstone is a desert town of 1500 residents located in southern Arizona about 70 miles southeast of Tucson in the shadow of 9466 ft. Miller Peak, which is in the Coronado National Forest. Americans associate Tombstone with the October 1881 gunfight at the O.K. Corral; and the resulting tourist trade has supported the town fairly well. Tombstone has survived the closing of local silver mines and a number of fires, thereby becoming known as “The town too tough to die.” Now, however, that proud title is being severely tested, by our own federal government.

Tombstone is supplied with water from 24 springs, located in the Huachuca Mountains on and around Miller Peak. However, nearly a year ago, from May through July 2011, the Monument fire destroyed at least 18,580 acres (640 acres equals one square mile) of forest and vegetation in the Huachuca Mountains, including the Miller Peak Wilderness area. Torrential rains followed soon after the fire, and the resulting mud slides pushed boulders “the size of Volkswagens” down on vital pumping stations, pipes, and other infrastructure. Some water pipes remain buried under twelve feet of mud, while others are without support, ominously hanging in the air, as the ground underneath has been washed away. In August 2011, Arizona Governor Jan Brewer declared a state of emergency in Tombstone, authorizing $50,000 in state funds to help cover engineering and repair costs for Tombstone’s water system. Since many of the pipelines are in areas designated as “wilderness,” the U.S. Forest Service won’t allow access for the mechanized equipment needed to fix the pipelines. Huge boulders, downed trees, and enormous piles of dirt and gravel must be moved, to build the structures that will protect the water lines against future natural disasters. However, these obstacles can’t be moved with the hand tools and horse teams that the Forest Service demands the city use.

As of January 2012, Forest Service officials had granted permits to repair infrastructure for only 2 of the 24 springs that supply Tombstone; and city manager George Barnes said “the city was told that the requests for the remaining permits would take a lot longer” to approve. Meanwhile, the state’s emergency funds are being wasted, as rented vehicles and equipment are sitting idle, and several pieces of heavy equipment have been vandalized, with the city required to pay for their repair. In addition, Tombstone has only a two day supply of water on hand, making the town particularly vulnerable to fire.

The Obama administration and the U.S. Forest Service are clearly attempting to regulate the state of Arizona in violation of the Constitution and impose an arbitrary, draconian environmentalist agenda on the land use rights of Americans. In addition, gold prospectors on western federal lands are routinely harassed by over-zealous park rangers, and ranchers have been pressured to surrender access and water rights. The Forest Service cites The Wilderness Act of 1964, which defines “Wilderness” as “an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain. An area of wilderness is further defined to mean…an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation…with the imprint of man’s work substantially unnoticeable.” Under “Prohibition of Certain Uses,” this act states, “[S]ubject to existing private rights, there shall be no…permanent road within any Wilderness area designated by this Act and, except as necessary to meet minimum requirements for the Administration of the area…(including measures required in emergencies involving the health and safety of persons within the area) there shall be no temporary road, no use of motor vehicles, motorized equipment…no other form of mechanical transport, and no structure or installation within any such area.” However, the Forest Service has gone beyond the Wilderness Act and threatened Arizona’s sovereignty and Tombstone’s very existence.

On behalf of Tombstone, the Goldwater Institute has filed a motion for a preliminary injunction that would allow city officials to go into the Huachuca Mountains and repair the damaged water transport infrastructure. Tombstone’s case is supported by the Tenth Amendment and by the fact that the city’s water rights were vested long before the Wilderness Act of 1964 and the concomitant Arizona Wilderness Act of 1984. The Tenth Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” and implicitly embodies “a policy against impairing the states’ integrity or ability to function.”

In Tombstone’s “Memorandum in support of motion for preliminary injunction,” the Goldwater Institute clearly shows that the city satisfies the four requirements for granting a preliminary injunction. In addition, this document gives numerous examples of how the Forest Service’s refusal to allow Tombstone officials access to the Miller Peak Wilderness area, and their inexcusable stonewalling of the permit issuing process, has not only seriously compromised Arizona’s integrity and Tombstone’s ability to function, but has put the town’s very existence in jeopardy. The requirements for the court granting Tombstone a preliminary injunction include, “whether the plaintiff is likely to suffer irreparable harm in the absence of preliminary relief,” and “whether an injunction is in the public interest.” [1]

The Forest Service’s refusal to allow Tombstone officials access to the damaged water supply infrastructure constitutes unlawful “commandeering” of the city’s water supply, and this commandeering “is certain to cause irreparable harm.” This is because “irreparable injury includes the impairment or threatened loss of rights or interests in real property,” “impairment of sovereign interests without notice or opportunity to be heard,” and “harm or threats of harm to public health and safety.” The Goldwater Institute explains that water rights are “real property interests” in Arizona and that Tombstone holds “title to water rights and water structure and pipeline right of way easements,” pursuant to a Congressional Act of July 26, 1866. By this Act, the Federal government is obligated to “protect the rights of individual possessors of water; and to recognize local customs, laws, and state court decisions.” Indeed, in 1907, Gifford Pinchot (a well-known “progressive”) wrote in the U.S. Forest Service’s book, “Use of National Forests,” “The creation of a National forest has no effect whatever on the laws that govern the appropriation of water. This is a matter governed entirely by state and territorial laws.”

In addition, the Forest Service recognized Tombstone’s vested water rights in 1916, and in 1962 granted the city a special use permit to maintain and repair its water delivery infrastructure. The Goldwater Institute further explains that the city’s “health and safety interest is not offset by any bona fide environmental interest.” This is because “Any environmental footprint from the work Tombstone seeks to perform will be washed away in the next monsoon,” and that “Even if there were a lasting footprint, environmental interests are not better served by requiring Tombstone to build only temporary structures with hand tools. Those structures will be washed away in the next monsoon. Given the inevitability of seasonal monsoons and periodic flood events in the Huachuca Mountains, it makes no sense to force repair and rebuild temporary structures ad infinitum with the continuous ground displacement that entails.” [2]

Nevertheless, in 2011-2012, the Forest Service has chosen to ignore not only Pinchot’s (the Forest Service’s first Chief Forester) comment, but the above-mentioned July 1866 Congressional Act and a large body of federal and state case law. By their refusal to allow Tombstone officials access to the city’s water delivery infrastructure, the U.S. Forest Service has violated Arizona’s state sovereignty, directly regulating the state through a political subdivision (Tombstone), in violation of a Tenth Amendment corollary that the Constitution “confers upon Congress the power to regulate individuals, not states.” In addition, the Forest Service has illegally commandeered not only the town’s physical water system, and the authority of Governor Jan Brewer, but Tombstone’s integrity and ability to function.[3] Americans can only hope that the Federal District court will rule against the U.S. Forest Service and order them to allow Tombstone to repair vital water delivery infrastructure as soon as possible, ensuring that the town will continue to exist.

[randii]

It would be cool to see a Jarbidge-style protest supported at the STATE level, protected by STATE cops, perhaps executed by STATE Department of Transportation workers. Maybe the governor could even mobilize the National Guard? USFS contractors, staff, and LEO wouldn't stand a chance...

Tombstone has plenty of legend -- this would be an EXCELLENT addition to the story, IMHO.

Randii

[Bebe]

Wilderness schmilderness....apparently the pipes were there before the wilderness, so it must have been designated in one of those Omnibus deals.

That's why the "no trace of Man" portion of the Wilderness Characteristics guideline should be a little more closely considered...hmm?

[Bebe]

http://www.newsmax.com/US/Tombstone-...6/09/id/441775

Newsmax
Rare Spotted Owl Threatens 'The Town Too Tough to Die'
Saturday, June 9, 2012 09:55 PM

By: Martin Gould


It was nicknamed “The Town Too Tough to Die,” but now Tombstone, Ariz., home to the OK Corral, is under siege from a new enemy — one that comes without a six-shooter or bad attitude.

The rare Mexican Spotted Owl is threatening the very survival of the iconic Old West town as its presence could halt repair work to a water pipeline built the very same year that Doc Holliday and the Earp Brothers shot down three cowboys in the most notorious gunfight of all time.

Without the work, summer monsoon floods are almost certain to wash the old pipeline away and leave the historic wooden town without water, reports CNN.

The 26-mile pipe was left vulnerable by wildfires last year that destroyed acres of vegetation and left hillsides denuded and susceptible to mudslides. But now the U.S. Forest Service says the owl, which was thought to have been driven out by the fire, must be protected.

The feds banned heavy construction equipment, CNN said, but a group calling itself the Jarbridge Shovel Brigade was toiling on the pipeline by hand. All was going well until this week when a confirmed sighting of the owl put even that effort in doubt.

The Forest Service had already made itself unpopular among townsfolk when supervisor James Upchurch was asked in court, “What is more important, owls or the people of Tombstone?" and he responded that there was no easy answer.

The town has already asked for an emergency injunction to allow the work to continue, which went all the way to the Supreme Court, where it was turned down.

Now GOP Rep. Jeff Flake is taking up the cause of the town. His Emergency Water Supply Restoration Act would set aside Forest Service regulations during water emergencies.

"The unforeseen consequences of federal laws and regulations threaten to do something outlaws, economic busts and the Arizona desert couldn't," Flake told CNN.

[edglock21]

The Forest Service had already made itself unpopular among townsfolk when supervisor James Upchurch was asked in court, “What is more important, owls or the people of Tombstone?" and he responded that there was no easy answer.

This, right here, tells us all we need to know about the agenda of these big government apparatchik

[Tech Tim]

The county Sheriff needs to man up and escort the heavy equipment to the repair site with a few of his deputies and if any feds show up give them the choice to go away quietly or go for a ride in the back of the paddy wagon.

[Greg Ducato]

Incredible, where is the common sense