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Judge Denies Tombstone Water

Marita Noon TOWNHALL

It is fire season in the West. Reports say the early start is “not a good sign,” and forecasts claim the “combination of heat and dryness will only make western wildfires worse.” The predictions were made in the same week that US District Judge Frank Zapata made a decision to deny an emergency request by the city of Tombstone, AZ, to repair its water system damaged in last year’s Monument Fire. He doesn’t think Tombstone has a crisis. Zapata said: “Claims of a drastic water emergency related to public consumption and fire needs are overstated and speculative.”

Though he was born in a small town, seven miles from the third highest mountain in Arizona, Zapata apparently has not lived with the eminent threat of forest fire. Having grown up in the foothills of Southern California where my family had to evacuate several times as the flames pressed toward our home, I understand the importance of water.

I got interested in the Tombstone story when I heard a promo for John Stossel’s show addressing Tombstone’s water woes. He teased the show saying that Tombstone was told they could fix their broken pipes using horses and shovels. This piqued my interest. I’ve written a couple of columns addressing the Forest Service’s requirements for mining claims in Montana that included hand tools and pack mules. You’d think they make this stuff up just for TV, but it’s real—as is the threat of fire in Tombstone.

In short, here is Tombstone’s tale. (Click here for a long version.)

Tombstone is a small city in the Arizona desert. They get their water from the nearby Huachuca Mountains through one of the longest gravity-fed systems in the country. Tombstone has an unbroken chain of ownership to the water. The pipeline that brings the water the 26 miles from the springs to Tombstone goes back to before Arizona was a state, way before there was a US Forest Service, or a federal wilderness act.

Last year, on June 16, the massive Monument Fire and the subsequent monsoon rains destroyed the pipelines that bring the water to Tombstone and boulders the size of Volkswagens blocked access to the springs—with some of the springs being buried under 12-15 feet of rock, gravel, and broken trees. Jack Henderson, who was Mayor at the time of the disaster recalls, “There was nothing left. It looked like a moonscape. We lost the war up there.”

In fact, the war was just beginning—but the war was not against nature; rather it is against the essential philosophy of our present national government.

In August, Governor Brewer declared a state of emergency for Tombstone, which provided $50,000 to the city to make repairs. The city rented equipment and applied for and received permits—except for those from the US Forest Service. By the end of October, the city grew tired of waiting. They took an excavator up to the springs. The Forest Service stopped them with the threat of arrest

Kathleen Nelson, acting ranger in charge of the Coronado National Forest, says the Forest Service has been letting Tombstone do some work to restore its water supply “as long as it complies with the 1964 Wilderness Act”—meaning Tombstone can do the work with shovels and haul the pipe up the mountain with horses (really!). More recently, workers were stopped from using a wheel barrow. Rangers say the wheel barrow is “mechanized” and “might damage wilderness and disturb endangered species.” The feds are blocking emergency repairs that are critical to Tombstone’s survival.

Since then, crews have been able to dig out some of the springs using shovels and pick axes—just as was done in the late 1870s. Thanks to prison inmates carrying pipe, what would have taken the small Tombstone crew six weeks to do, was done in three days. They have been able to lay PVC pipe above ground to bring water to the city—though only a few day’s supply and not enough to fend off fire. Kevin Rudd, the pipeline project manager, fears that their temporary fix will get washed away in the first rainstorm. Monsoon season in Arizona is now less than a month away. Rudd reports that since the beginning of March, work has slowed because of the Mexican spotted owl said to be nesting in the peaks above the pipeline. The owl is not the only obstacle. Boulders have been placed in the middle of the trails. Pipeline has been vandalized, and workers have been confronted and threatened.

Steel pipe needs to replace the temporary PVC, but that requires mechanized equipment. When I asked current Mayor Stephen Schmidt why they were using convicts instead of horses to haul the pipe, he said: “Tombstone doesn’t have any horses.”

Tombstone not only doesn’t have “any horses,” they also don’t have enough manpower to restore the springs and re-lay the pipes. They don’t have the funds to fight the feds. Former Mayor Henderson has been at the forefront of the battle. During a meeting with the rangers, Henderson says he was told: “If you want permission, you’d better lawyer up. If you don’t like the decision, you’d better call Barack Obama.” Permits are needed for nearly two dozen more springs and the town doesn’t have time to wait. If President Obama can fast track renewable energy projects, he could do the same for Tombstone.

Tombstone took the advice and lawyered up. With the help of the Goldwater Institute, the town took the Forest Service to court. At the District level, they lost. Attorney Nick Dranias has already filed an appeal to the 9^th Circuit and expects the battle to make it to the Supreme Court. He is looking for others who can file a “friends of the court,” or amicus, brief. But all of that takes time—which Tombstone doesn’t have. Without the help of the public, Tombstone, thanks to the federal government, will be writing its own epitaph.

This is where you and I come in. June 8 and 9, Tombstone is holding a “shovel brigade” similar to the Jarbridge Shovel Brigade in 2000. Individuals are encouraged to come to Tombstone and help with the restoration work—to, literally, lift a shovel. If that is not possible, Americans who care about property rights and state sovereignty, who want to fight federal overreach, are asked to send a shovel and a $5 donation. The funds will be used to fight the legal battle. Since the shovel brigade was announced, 400 shovels were received in the first week—thousands are expected. If thousands of people descend on Tombstone, from all parts of America, it makes a major media event—one the White House cannot ignore. (Imagine miles of motorhomes moving into Tombstone.) Like good neighbors, will the Forest Service mobilize its people to help clear debris and restore the system, or will they continue to sit in their offices and shovel paper?

Nick Dranias says: “If the Forest Service can effectively seize Tombstone’s 130-year-old water rights during a state of emergency— rights that the Service recognized as valid in 1916—no state or local government will be safe from the feds.” The issue is bigger than life or death for Tombstone. It is in the national interest.

Similar battles are playing out across America. I’ve been involved in the Otero County Tree Party where the health and wellbeing of the citizens of Otero County, NM, were threatened by fire due to the overgrown forest—with numbers of trees way beyond the Forest Service’s optimal. But the Forest Service blocked the cutting of trees. Led by Congressman Pearce (R-NM), who cut the first tree, the county commissioners put their citizens ahead of the one-size-fits-all federal regulations and began cutting trees. Hundreds of people were present in a remote mountain town to express their opposition to Forest Service policies drafted in far-away Washington. Like the Tombstone tale, the tree cutting is now in court. Also in New Mexico, is the sand dune lizard issue. Any day now, a decision regarding its listing as an endangered species is expected from the Fish and Wildlife Service, under the direction of Secretary of the Interior Ken Salazar. Opponents of the listing have been told it will have virtually no impact on the oil and gas, or ranching, activity in the area—yet, the spotted owl is preying on the life of Tombstone, as its supposed presence is being used as an excuse to block progress. Regardless of what FWS decides, the lizard decision, too, will end up in court—making the issue a true attorney-full-employment act instead of ongoing job creation.

In the same week that experts predicted a bad fire season in the West and that Judge Zapata ruled against the town of Tombstone, Government Accountability Office testimony stated that “The Green River Formation, a largely vacant area of mostly federal land that covers the territory where Colorado, Utah and Wyoming come together, contains about as much recoverable oil as all the rest of the world’s proven reserves combined.” The Green River Formation could truly make America energy independent. Sadly, under the current administration, it is likely a pipedream. As the report points out, the Green River Formation is “mostly federal land.” The same people making decisions on the Green River Formation are also making decisions on Tombstone’s water woes, the Otero Country Tree Party, and the sand dune lizard listing. These federal decision makers have roots in environmental organizations; they are fundamentally opposed to humans, our presence on the earth, and anything we do to use our natural resources. People, bad!

This is why the Tombstone tale is of utmost importance. Let’s flood Tombstone before the monsoon season. Send shovels. Send $5. Show up on June 8 and 9!

Ken Ivory, a state representative from Utah, asks: “Why should this story matter to anyone but residents of Tombstone? If unelected, federal bureaucrats can choke off water to a thirsty wooden town, in the middle of a desert, in the midst of a drought, even despite it being a national historic site, what will they do to towns and cities, counties and private landowners in your state?”

I don’t want to find out, do you? Let’s stop them in Tombstone before the feds write Tombstone’s—and America’s—epitaph.

Lincoln's words at Gettysberg keep banging around in my head when reading about how the Federal Government (in Washington) now treats it's own citizens;

" that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth."

******* "Of the people, By the people, For the people"

Where did we go wrong?