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Tombstone a Cautionary Tale for Mesquite-Update
Posting Date: 06/11/2012

By Barbara Ellestad

Both the U.S. Supreme Court and the Mexican Spotted Owl are putting the brakes on efforts by repair crews in Tombstone, AZ, who are trying to fix the town's main water source that was damaged by fire and flooding from monsoon rains last year.

The Mesquite Citizen Journal first reported on this story June 1. See MCJ article Tombstone a Cautionary Tale for Mesquite The issue may become important to the Mesquite area because of the water resources the Virgin Valley Water District holds in the Nickel Creek area located within the proposed Gold Butte National Conservation Area with Wilderness.

On May 16, the Goldwater Institute, a conservative-based organization, filed an emergency appeal of U.S. District Court Judge Frank Zapata’s decision that denies the small Arizona town from repairing its primary water source apparatus that lies within a federally-declared wilderness area.

The Supreme Court, first Justice Anthony Kennedy and then Justice Clarence Thomas, sided with Zapata's decision and denied the town's request for an emergency injunction against the U.S. Forest Service who will not allow mechanized or motorized equipment into the Wilderness area based on a 1964 federal law banning such equipment.

In a CNN.com article published Saturday, June 9, Ann O'Neill reported that the Mexican Spotted Owl had recently been sighted in the area further dampening Tombstone efforts to repair its water transmission equipment. The owl was thought to be driven out of the area during last year's fires.

O'Neill reports that "As for the owl, nobody could say for certain after the fire whether it would return. But it's the big reason why the Forest Service wouldn't simply hand Tombstone a permit to use heavy construction equipment to fix the pipeline. Tombstone responded by taking the feds to court. Since then, the conflict has escalated, taking on a life of its own.

"Tombstone now asserts that it owns 25 springs in the Huachuca Mountains and shouldn't have to ask anyone for permission to maintain its own water line. The Forest Service says Tombstone holds permits for just five springs, and it argues the city is trying to exploit a natural disaster to expand its water system."

A spokesman for the Goldwater Institute, which is helping the city with the case, said he did not expect the injunction to be granted, but that they are trying to bring attention to the city’s plight according to the Institute's Web site.

Nick Dranias, the institute’s constitutional policy director, said that not letting the city start the repair work will subject it to months of risk for burning in the middle of wildfire season.

“The city of Tombstone’s very existence is at stake, and a decision like this could very well prove to be its death penalty,” Dranias said.

He said the Supreme Court request was also meant to send a message

to the Forest Service that local governments “must be free to take actions under a state of emergency to protect public health and safety.”

Dranias said the city of 1,500 is living on “borrowed time” as it faces wildfire season, and that the government is putting residents at risk for “no legitimate reason.”

“The reality is there’s nothing of anything significance alive up there because of the fire,” he said. “To say to the city, take your chances and see how long you can get along with what you’ve got is fundamentally irresponsible.”

Gov. Jan Brewer declared an emergency in August 2011 in response to the city’s water problems.

While the lawsuit is pending, Rep. Jeff Flake, R-Mesa, AZ, introduced a bill in Congress on May 16, to let state and local governments access wilderness lands without federal interference during a declared state of emergency. The bill, introduced in response to Tombstone’s situation, is scheduled for a House committee hearing last Friday, June 8, in Washington.

According to O'Neill's CNN.com article, "The federal government controls millions of acres in the West, and some folks believe the feds have reneged on a promise to turn over large swaths to local control once statehood was achieved. It's a battle cry once made by oilmen and ranchers, and now state and local governments are taking up the cause.

"The leaders of the Jarbidge Shovel Brigade, which in 2000 used volunteer muscle power to move a boulder and reopen a wilderness road near Elko, Nevada, rallied to Tombstone's side. A nonprofit organization was set up, and Tombstone so far has received $2,000 in donations and about 400 shovels.

"The Jarbidge contingent then traveled to Tombstone, hiked up the mountain and labored on the pipeline."

O'Neill's article examines the tense relationship between the U.S. Forest Service workers assigned to the Tombstone area and the local townspeople.

"Tombstone tells a compelling story, portraying the Forest Service as a rogue agency of obstructionist, tree-hugging bureaucrats. The Forest Service had offered little comment, and when it did say something, it sounded to the people of Tombstone, well, tree-hugging and bureaucratic.

"But the rangers came out in force on Friday [June8], presenting their helpful side. A group of Forest Service firefighters hiked up the mountain and used a two-man crosscut saw to take down a tree and clear a path for the pipeline.

"While everyone agrees the relationship between Tombstone city officials and Forest Service rangers has improved in recent weeks, their differences simmer just below the surface. The agency is working with the city to come up with a plan to keep water flowing to Tombstone, but it isn't standing down.

"The Forest Service granted permits Thursday for the city to bring the all-volunteer shovel brigade into the canyon to shore up the pipeline. Tombstone has until 8 p.m. Saturday [June 9] to finish the job."

Click here for O'Neill's complete story on CNN.com

Click here to access the Goldwater Institute Web site

 

Commentary
  • Posted Date: 06/11/2012
    This is a scary story, made even more terrifying by a government that has finally admitted what many of us have been fearing for decades: that they are really willing to place the needs of animals above the needs of human beings. How did we get to this place?
    By: Marvin Ventnor
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  • Posted Date: 06/11/2012
    OK – How about some FACTS here instead of anti-government rhetoric from an acknowledged “right-wing think tank”. Two federal court judges as well as 2 “conservative” justices from the U.S. Supreme Court have ruled that the City and the group trying to use this situation to further their rightwing agenda (Goldwater Institute) have misrepresented the facts and overstated the problem. Here is the factual account “the federal government’s lawyers argued that Tombstone refused to make a proper application and wouldn’t specify exactly what work it wants to do where in the wilderness area, and a federal judge agreed with government lawyers that Tombstone appeared to be attempting to expand — not just repair — the system by tapping additional springs in the Wilderness area. “Likewise, the court also finds that (Tombstone) cutting a path through a federally protected wilderness area with excavators and other construction equipment would have a significant impact,” U.S. District Judge Frank Zapata wrote in a May 14 order. “Tombstone’s claims that it needs to do the work to improve and increase its water supplies, partly because of firefighting concerns, are overstated and speculative,” Judge Zapata said. The FACT is that the forest service allowed appropriate work to be done and that the City has over 80% of it’s previous water restored – and the forest service agreed to allow additional work on June 8th. The “cautionary tale” here is to make sure to understand and evaluate the FACTS before having a panic because of misrepresentations and overstatements by a political group that has an agenda. The Government is US, not some big bad enemy. And the laws and judicial system is there to evaluate claims and render judgment in the interest of everyone, not just one side. Or do we only believe in law and order when we get our way?
    By: John
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  • Posted Date: 06/11/2012
    thanks john . Well said.
    By: penny
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  • Posted Date: 06/16/2012
    80% is 20% short of 100%! That is a fact according to John! Can you imagine if the VVWD suddenly lost 20% of it's resources? “the court also finds that (Tombstone) cutting a path through a federally protected wilderness area with excavators and other construction equipment would have a significant impact." Hum, just who decides what a "significant impact" is? Well, the courts decide based upon testimony of "experts". Courts often decide on matters of which they themselves have no particular knowledge. Opposing sides present "experts" who inform the Court and fortify their stance, with "expert opinions." Our governmental agencies are full of so-called "experts," and many "experts" do have strong, single sided, "agenda's"! " Government is US, not some big bad enemy." That sir is a statement of your opinion. I haven't felt represented for quite some time now! The fact, as John points out, is that various opinions and concerns do exist. John chooses to apply a label to the opposition and then chastise those who are obtuse enough to listen to and evaluate their position.
    By: Big Mon
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  • Posted Date: 06/16/2012
    C’mon BIG MON, read what I wrote and do a little research on your own. As I stated, “the court also allowed additional work and repairs on June 8th”, which are designed to allow restoration of all the water previously accessed by Tombstone. The “label” I put on the Goldwater Institute is “right wing think tank”. Just take a few minutes and research what they do and see if that is accurate or misplaced – or just look at their name! Labels are only bad things if they are inaccurate. You don’t trust our government and you don’t trust our courts – so do you believe in our constitution that set up and authorized our form and branches of government? And you don’t like experts? Who would you rather listen to – uninformed idiots? The court system allows for “experts” from both sides of an argument you know – and then a judge or a jury of our peers renders their best judgment – there’s that darned constitution again! In our Republic the majority elects our representatives and sometimes decisions are made/rendered that some people don’t like – and we have to live with them or change them through legal and political processes. I sure didn’t like going to war in Vietnam, or the Citizens United ruling, but they happened anyway and I have to live with them or try to change them. And I didn’t chastise anyone, I simply listened to and evaluated their position!
    By: John
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  • Posted Date: 06/24/2012
    Thank you John for your courteous response. In reply; I sincerely thank you for your service to our country, voluntary or not (you did not specify but implied), I truly respect your sacrifice! THANK YOU! June 8, one day, BIG WOW! Have you ever been involved in any construction projects? Do you know anything about mobilization fees, construction planning, staging, mobilization, dispersing of material's, coordination and execution? Do you think that heavy equipment just operates flawlessly without equipment failure? Do you realize that sometimes the slope of the earth and the weight of un-secure, up-hill earth loads may result in unpredicted complications? You must assume everything just goes perfect without fail, especially with the Federal Government involved? Your objectiveness is apparent! A little long term planning, engineering and cooperation would surely result in less impact and longer duration of environmentally friendly co-existence. "C'mon," you want to discuss the Constitution? Remember the Preamble of our Constitution? That's the leading part of a document which states the purpose and objective of what is to be more particularly described in the remainder of the record. Please point out to me anywhere in our Constitution where the welfare and liberty of flora and fauna shall be superior to that of mankind! Oh, as have you, I too swore an oath to " support and defend the Constitution of the United States against all enemies, foreign and domestic" as well. It is the "domestic enemy" that currently worries me the most. Our government wields formidable power and exercises unconstitutional authority at the determent of our citizens! Barbara's warning shot of Gold Buttes wilderness designation, and the granting of additional power to the Federal Government regarding public lands should not be ignored!
    By: Big Mon
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