On April 11, attorneys with the Goldwater Institute filed a Motion for Partial Summary Judgment in the City of Tombstones versus the U.S. Department of Agriculture. For years, the refusal by the federal government to allow the City to make adequate repairs to the water system has raised ire, concerns, and the awareness of land rights’ issues.
In their Motion, attorneys for Tombstone advised the court, “Today, including the two sources repaired with the Forest Service’s permission, only three of the City’s mountain water sources are currently flowing; those three sources could be swept away by monsoons at any time due to the Forest Service’s refusal to allow the completion of permanent repairs.”
Another federal agency, according to the Goldwater Institute, is quietly ignoring hundred-year old land rights as they block off the water supply to Tombstone, Arizona—the city once hailed as the “Town Too Tough to Die.”
Attorneys noted that there are over a half dozen letters from between 1908 and 1917 recognizing Tombstone’s water rights, yet since the 2011, after wildfires and flooding ravaged the land leading to damage to the City’s water lines, the feds have prevented the use of machinery needed to repair the lines and restore the system.
When Tombstone officials tried to repair the line during a declared State of Emergency, the Forest Service blocked them, saying they had no right to enter the land upon which their water system rested for over 100 years, except on foot or horseback.
The Forest Service has justified its interference from time to time claiming that it is protecting the nesting areas of the spotted owl, but evidence has also surfaced showing that since at least the 1990s the Forest Service has had its eyes on laying claim to the City’s water supply.
Few in the west can ignore the federal government’s apparent overreach, abuse of power, and the increase in control of land. Even more so disturbing is the simple truth that he who controls the water controls the lifeblood.
“Throughout the American West, tales as tragic as the Bundy Ranch dispute are unfolding without quite the same fireworks but with impacts far more dire,” said Nick Dranias, an attorney at the Goldwater Institute, which is representing Tombstone. “Like the BLM in dealing with Cliven Bundy, the Forest Service is disregarding over a century of law and custom recognizing the City of Tombstone’s right to draw water from mountain springs for its municipal water supply.”
In their Motion for Partial Summary Judgment, the Goldwater Institute asked Judge Zapata to recognize Tombstone’s ancient property rights and to require the Forest Service to follow the law. The case is expected to proceed to judgment in the next several months, as Tombstone residents pray another fire and flood doesn’t strike what remains of the City’s water supply in the nearby wilderness.
According to Dranias, the Tombstone case is indicative of a federal government that has lost sight of human beings in managing federal lands.
“Federal overreach is seemingly aimed at clearing federal lands of all forms of currently unfashionable human activity,” said Dranias. “But unlike the mere impoundment of cattle, the fight over water between the City of Tombstone and the Forest Service could threaten the very existence of the arid western states.”