Tombstone striking out in courts in water fight
Published: June 4, 2012 at 6:51 am
Tombstone calls itself “the town too tough to die” thanks to an Old West history that includes the shootout at the OK Corral, but the tiny southeastern Arizona city says the health and safety of its modern-day residents are imperiled by unreasonable U.S. Forest Service officials.
At issue is whether the city is entitled to use heavy equipment to complete repairs on a runoff-damaged pipeline system that for 130 years has hauled water to Tombstone from mountain springs that are now part of a forest wilderness area.
So far, federal judges aren’t buying the city’s claims.
In the wake of two lower courts’ rulings against Tombstone, a U.S. Supreme Court justice on Friday provided the latest rebuff by denying a request for an emergency injunction.
The request asked for an order allowing the city to use vehicles and excavators to repair and bury piping, locate buried springs and build dams and earthen mounds to divert runoff and redirect flash floods.
The work would take place in side canyons of the Huachuca Mountains near Sierra Vista, a larger city about 20 miles southwest of Tombstone.
A massive wildfire a year ago burned off vegetation, resulting in mudslides that buried and damaged the water system during last summer’s rainy season.
The affected areas are in designated wilderness in the Coronado National Forest, and Forest Service officials required the city to obtain permits for the construction work.
Some work was permitted and performed, allowing delivery of piped water to resume and augment the city’s limited supply of potable well water.
However, officials in the city of 1,380 say more work needs to be done to prevent new damage from runoff and flooding during this year’s summer rains.
“All the city wants to do is go in there and make repairs and get back to normal,” Mayor Stephen Schmidt said Friday. “I don’t think it’s right that we should be held up by red tape by the Forest Service.”
Coronado National Forest spokeswoman Heidi Schewel said officials could not comment because of a policy on pending litigation. But she released copies of several news releases from last fall that announced the service’s approval of the initial repair work.
In the request to the Supreme Court, Tombstone’s lawyers argued that the federal government is trampling on states’ rights by essentially “commandeering” Tombstone’s water system by not allowing it to be adequately repaired.
State sovereignty would be meaningless “if federal officials could claim unlimited regulatory authority over federal lands to prevent state and local governments from quickly responding to natural disasters to protect public health and safety,” said the lawyers from the Goldwater Institute, a conservative advocacy group based in Phoenix.
By invoking wilderness considerations to block the city’s planned work in the fire-scorched area, government officials “are seeking to elevate the preservation of a moonscape over Tombstone’s paramount public health and safety interest,” the Goldwater Institute lawyers wrote.
But the federal government’s lawyers argued that Tombstone wouldn’t specify exactly what work it wants to do where in the wilderness area, and a federal judge agreed with government lawyers that Tombstone appeared to be expanding — not just repairing — the system by tapping additional springs.
“Likewise, the court also finds that (Tombstone) cutting a path through a federally protected wilderness area with excavators and other construction equipment would have a significant impact,” U.S. District Judge Frank Zapata wrote in a May 14 order.
Tombstone’s claims that it needs to do the work to improve and increase its water supplies, partly because of firefighting concerns, are “overstated and speculative,” Zapata said.