Showdown at the Red Tape Corral

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Fed­er­al land con­trols come under bright light in Tomb­stone, Ari­zona. Free­dom Advo­cates asks: When will locales and state gov­ern­ments start remind­ing the fed­er­al gov­ern­ment that they have no author­i­ty under Arti­cle 1 Sec­tion 10 of the Con­sti­tu­tion to direct land man­age­ment prac­tices?  Read arti­cle below.


Opin­ion, The Wash­ing­ton Exam­iner

In a show­down between the Oba­ma admin­is­tra­tion and the town made famous by the gun­fight at the O.K. Cor­ral, the U.S. For­est Ser­vice is refus­ing to allow his­toric Tomb­stone, Ariz., to restore its munic­i­pal water sup­ply after it was destroyed by tor­ren­tial floods and mud­slides in the sum­mer of 2011.

Tombstone’s Huachu­ca Moun­tain water sources and pipelines are locat­ed in the fed­er­al­ly-pro­tect­ed “Miller Peak Wilder­ness,” and so the For­est Ser­vice is ignor­ing a state of emer­gency declared by Ari­zona Gov. Jan Brew­er to autho­rize imme­di­ate restora­tion work.

For months, the For­est Ser­vice has dragged its heels before approv­ing any work. And since March 1st, the Ser­vice has restrict­ed Tomb­stone to using hand tools and hors­es to avoid dis­turb­ing nest­ing sites of the Mex­i­can Spot­ted Owl.

A year lat­er, because of the For­est Service’s inter­fer­ence and delay, only three of Tombstone’s 25 moun­tain spring water sources have been restored. The For­est Ser­vice has com­man­deered 88 per­cent of Tombstone’s Huachu­ca Moun­tain water sys­tem.

The For­est Ser­vice denies that it is choos­ing to pro­tect spot­ted owls over peo­ple, instead claim­ing that it is mere­ly fol­low­ing con­gres­sion­al orders. It points to the Wilder­ness Act of 1964 and the Ari­zona Wilder­ness Act of 1984 as jus­ti­fi­ca­tion for its behav­ior. But Con­gress exempt­ed Tombstone’s pre-exist­ing water sys­tem from those laws.

Water rights are the foun­da­tion of the economies of the arid West­ern states, and their destruc­tion could eas­i­ly under­mine the cer­tain­ty and sta­bil­i­ty need­ed for eco­nom­ic recov­ery and growth through­out the West. Tombstone’s munic­i­pal water sys­tem is found­ed on water rights that date back to the days of Wyatt Earp and Doc Hol­l­i­day.

In real­i­ty, the For­est Ser­vice is claim­ing pow­er that it does not have — like so many oth­er exec­u­tive agen­cies in the Oba­ma admin­is­tra­tion. The moti­va­tion for this pow­er grab is far less clear than its effects. The For­est Ser­vice is forc­ing the town’s 1,562 res­i­dents to live with two con­stant threats — one is that they will drink water poi­soned with arsenic. The oth­er is that an uncon­trol­lable fire could destroy their city’s his­toric down­town.

All of Tombstone’s alter­na­tive well-water sup­plies are arsenic con­t­a­m­i­nat­ed. Only one well pro­duces water with arsenic lev­els safe enough to drink. If this last well fails, there will not be enough water to drink — let alone to fight fires. The fear of fire is real in Tomb­stone. Its down­town is a tin­der­box of 19th cen­tu­ry wood­en struc­tures, which near­ly burned to the ground in the Six Gun City fire of Decem­ber 2010.

In short, by deny­ing Tomb­stone the free­dom to ful­ly repair its essen­tial munic­i­pal prop­er­ty, the For­est Ser­vice is threat­en­ing to reg­u­late the town to death. This vio­lates the con­sti­tu­tion­al prin­ci­ple enforced by the Supreme Court in Printz v. Unit­ed States that “[t]he Framers explic­it­ly chose a Con­sti­tu­tion that con­fers upon Con­gress the pow­er to reg­u­late indi­vid­u­als, not States.” It also flouts the Court’s dec­la­ra­tion in Alden v. Maine, that the Con­sti­tu­tion guar­an­tees the ‘States’ con­tin­ued exis­tence.”

If the fed­er­al gov­ern­ment can so freely threat­en the very exis­tence of Tomb­stone and the economies of the arid West­ern states, then no cit­i­zen, state or local gov­ern­ment will be safe from fed­er­al abuse. That’s why the Gold­wa­ter Insti­tute is lead­ing Tombstone’s law­suit against the U.S. For­est Ser­vice.

While Tombstone’s court bat­tle con­tin­ues, Amer­i­cans must stand with the “Town Too Tough to Die.” A vic­to­ry would set an impor­tant prece­dent for com­mu­ni­ties through­out the Unit­ed States which, for decades, have seen their auton­o­my denied and rights vio­lat­ed by the fed­er­al gov­ern­ment. If Tomb­stone pre­vails, we will all be a lot safer from fed­er­al over­reach.

Nick Dra­nias is direc­tor of Pol­i­cy Devel­op­ment and Con­sti­tu­tion­al Gov­ern­ment at the Gold­wa­ter Insti­tute.


About Nick Dranias