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January 2013 Wilderness Watch Guardian: Tombstone Denied Immediate Access

Environment  (tags: animals, conservation, ecosystems, environment, government, GoodNews, nature, habitat, wildlife, water )

- 1903 days ago -
On Monday, a federal appeals court denied Tombstoneʼs request for a preliminary injunction that would allow the city to make immediate repairs to its Huachuca Mountains water system without authorization from the U.S. Forest Service.

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JL A (281)
Saturday February 2, 2013, 9:04 am
Goldwater sees hope for Tombstone appeal
The Sierra Vista Herald
By Dana Cole
Created Dec 28 2012 - 12:10am

TOMBSTONE– On Monday, a federal appeals court denied Tombstoneʼs request for a
preliminary injunction that would allow the city to make immediate repairs to its Huachuca
Mountains water system without authorization from the U.S. Forest Service.

The U.S. 9th Circuit Court of Appeals concluded that "Tombstone failed to raise serious
questions going to the merits of a 10th Amendment challenge" as presented by attorney Nick
Dranias of the Goldwater Institute during the hearingʼs oral arguments on Dec. 4. In short, the
three federal-judge panel did not believe the actions of the U.S. Forest Service interferes with
the 10th Amendment rights of the sovereignty of the state.

Tombstoneʼs preliminary injunction was seeking to use motorized vehicles and heavy
equipment to repair and restore Tombstoneʼs waterline, which was destroyed in the wake of
last yearʼs Monument Fire. While city officials contend that Tombstone owns the water rights
to the springs that supply its water and point to the documentation to support that contention,
the 9th Circuit said the question of who owns the water is a matter that needs to be resolved.
The issues of water and property rights, and Tombstoneʼs access to areas in the Huachuca
Mountains with heavy equipment for the purpose of making repairs, challenged a 1984
wilderness area designation by the federal government.

Following the 2011 monsoons that caused extensive damage to the cityʼs pipeline, Gov. Jan
Brewer declared a state of emergency to help fund repairs to infrastructure on the mountains
feeding water to pipelines maintained by the city.Tombstone rented the necessary earthmoving
equipment to make the repairs, but was not able to secure the permits needed from
the U.S. Forest Service to allow the equipment into the designated wilderness areas.

While Tombstone officials claim the forest service has denied crews the ability to take heavy
equipment into areas where they want to make repairs, Heidi Schewel, spokesperson for the
Coronado National Forest, said there is a process that must be followed when wilderness
areas are involved.

"We have worked with the City of Tombstone and will continue to work with the city regarding
their water system and the repairs," said Schewel. "If there is a request for motorized or mechanized equipment into the wilderness area, we utilize a ʻMinimum Requirements Decision Guide.ʼ Under that guide, when any entity requests authorization to take motorized or mechanized equipment on national forest system lands, there is a process that must used, designed to protect wilderness values," Schewel explained.

When using the guide, the first step is to determine whether the action is really necessary.
When monsoons damaged the water line with mudslides and boulders, Schewel said the
Forest Service deemed Tombstoneʼs situation an emergency and was able to push the
authorization process through in a matter of weeks.

"This is a process that must be used any time any an entity requests authorization to bring
mechanized or motorized equipment on national forest system lands across the U.S.Itʼs not an
isolated incident," Schewel said. "In this case, we were able to accomplish in weeks what
typically takes months because of the urgency."

However, Tombstone Archivist Nancy Sosa, someone who has testified before Congress
regarding the water line, said that people are getting swept up in the rhetoric and are not
paying enough attention to the situation at hand.

"There are ranchers along the line that we provide water to. You have almost 1,700 people
here who will be directly impacted if our water line is not restored to its original capacity. And
then consider the 400,000 visitors who come through Tombstone every year. Those people
will be impacted. Weʼve been going up into those mountains for years and making repairs to
that line without any problem. And now itʼs suddenly an issue."

Sosa also noted that because the cityʼs water supply comes from springs and is collected in
catchments, "It doesnʼt touch the aquifer and we donʼt touch the (San Pedro) river." When
testifying before Congress, Sosa said, "It took one year to build the pipeline, yet 18 months
after the damage, weʼre still arguing with the federal government about taking mechanized
equipment up there to make the repairs that are needed to restore our water supply. All weʼre
asking is that we be allowed to repair the pipeline that weʼve owned long before the forest
service had a presence in that area."

After learning the 9th Circuit Courtʼs decision, Tombstone Mayor Stephen Schmidt said the
ruling doesnʼt necessarily mean the appeal process "stops here." The mayor said that during
an upcoming Jan. 8 city council meeting he expects council members will be going into
executive session with Dranias to discuss the cityʼs next move.

"Weʼll listen to his recommendations and decide how to proceed with the appeal process from
that point," he said. "As far as I know, we can still fight this," Schmidt added. "The Goldwater
Institute is looking at our constitutional rights. Does Tombstone have the right to access the
water line and make the repairs we believe need to be made? Nick Dranias will have to
advise us on which direction we need to take from here. This has become a very
complicated issue."

Dranias agrees that the case is complex. He says despite the loss, heʼs optimistic the case
will be heard by the Supreme Court.

"The 9th Circuit teed up this 10th Amendment issue for the Supreme Court to decide,"
Dranias said of the ruling. "This was a complex appeal in many ways, but the court chose not
to reach any other issue other than the 10th Amendment issue. I think itʼs actually pretty
positive for what our goal was in doing that appeal, which was to get the fastest appeal route
to the U.S. Supreme Court possible," he added.

Dranias said he wanted to get the 10th Amendment issue aired out in front of the Supreme
Court with the current justices that serve on the court because he believes "the 10th
Amendment theory will be well received, if they decide to take the appeal."

While he admits it would have been better to win, Dranias says a partial victory on a
technicality would have been far worse, as it would have "disabled us from having any
practical ability to seek review by the U.S. Supreme Court. By focusing its decision on the
10th Amendment issue, I think the 9th Circuit Court was signaling to the Supreme Court that it
wants guidance."

Former Tombstone Mayor Jack Henderson, said, "Iʼm terribly disappointed in the 9th Circuit
Courtʼs decision. All we can do now is keep fighting for an appeal process so Tombstone can
protect its land and water rights. Iʼm actually shocked to hear the courtʼs ruling."

Henderson also says he hopes the current city council recognizes how vital this issue is to
Tombstone and will make "good decisions based on Nick Draniasʼ recommendations. Weʼre
fortunate to have the Goldwater Institute behind us, so I hope our current council listens
to him."

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Our View: Will Tombstone raise the stakes?
The Sierra Vista Herald
By Eric Petermann
Created Dec 30 2012 - 12:10am

Before officials who govern "the town too tough to die" drive off the proverbial legal parking lot with an appeal to last week's ruling by a federal court, perhaps it is time to start thinking in the longer term interests of the community.

Not that it isn't happening already.

Tombstone officials are waking up to the reality that win or lose in the effort to secure water rights in the wilderness areas on the Huachuca Mountains, money will have to be spent to repair, install and maintain the infrastructure that delivers water to city customers.

Win in court — which may ultimately involve a trip to the U.S. Supreme Court in a year or two — and there will be a cost to repair the existing system that captures water from the canyons and pipes it to Tombstone.

Lose in court, again, and the cost will include the time wasted waiting for the federal justice system to reach its verdict, and the costs of new infrastructure to feed the community's water demands.

Let's hope the legal expenses are a "manageable expense" for the good people of Tombstone.

No matter the outcome, the decision by the U.S. 9th Circuit Court of Appeals has kept a spotlight on an issue that may decide the fate of water use in the entire region.

The final decision on who owns the water rights in federal wilderness areas on the Huachuca Mountains — if no other water system is developed — will cast the future for some 1,700 city residents, a number of ranchers, and the businesses that serve some 400,000 visitors to the region, according to Tombstone archivist Nancy Sosa.

For that reason, while it may seem that what this community decides to do regarding its water needs is of little consequence to people in Bisbee, Sierra Vista, Douglas and Huachuca City, in fact, just the opposite is true.

The outcome of this issue matters a great deal for our tourism industry and our shared livelihood.

Tombstone has viable alternatives for its water sources which are just as accessible as its existing Huachuca Mountains pipeline. It would be prudent to put the development of these alternatives high on the priority list to meet the immediate and future water needs for the community, rather than bet that at some undefined date the federal government will surrender the water rights in the wilderness areas.

There is a call for the cards at the poker table and Tombstone officials need to decide whether it's time to raise the stakes, or play another hand to develop new water sources for the community's future.

jo M. (3)
Saturday February 2, 2013, 12:27 pm
Time for the Forest Service to do the right thing and allow the repairs. One has to wonder why a city's water supply was included in a wilderness area in the first place.

JL A (281)
Sunday February 3, 2013, 9:19 am
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