The following article posted by
Eric Burns Bio ↓ on May 1st, 2012 in the FrontPageMag.com blog is another example of the Marxists on the Left using environmental laws to further their agenda with out regard to the well being of an entire community.
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.
Footnotes:
[1] Goldwater Institute, “City of Tombstone’s Memorandum in Support of Motion for preliminary injunction,” p. 5-6; at
www.goldwaterinstitute.org.
[2] Ibid., p. 11
[3]
Printz v. United States 521 U.S. 898, 920
(1997), as cited by Goldwater Institute, Ibid., p. 15; Goldwater
Institute, “Tombstone’s reply in support of motion to extend time by
severing and continuing consideration of Tenth Amendment issues,” p.
8-12, at
www.goldwaterinstitute.org.
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