Wednesday, December 5, 2012

WATCH: Rep. Schweikert Rides To Tombstone's Rescue

Arizona Rep. David Schweikert (R-CD5, East Valley) took to the House floor yesterday to try to keep "The Town To Tough To Die" alive.  His one-minute speech came the day after the Goldwater Institute argued on behalf of Tombstone in front of the Ninth Circuit Court of Appeals.  Tombstone is seeking the right to use mehanized equipment in the federal Huachuca Mountain Wilderness Area in order to repair a vital water pipeline damaged in last year's Monument Fire.

Schweikert's talk was entertaining, complete with a picture of four men working on a boulder on a mountainside.  "They're not allowed to take a little Bobcat up the mountainside to get to the springs to fix their water, so you have to go up by hand up a mountainside to remove the boulders.  Is there an adult in the Forest Service who has a little sense?"

Of course, it would be impossible for Rep. Schweikert to go into detail in his allotted sixty seconds.  We will provide a brief synopsis here, and will paste (below the jump) some of the factual background set forth in Hon. Frank Zapata's May 14, 2012 Order denying Tombstone's (2nd) motion for a preliminary injunction.

Rock and debris slides following the Monument Fire damaged the water system that supplies Tombstone with most of its water.  Tombstone claims that the Forest Service ("USFS") has been hindering its efforts to reach and fix the water system by requiring Tombstone to tell it what repairs it intends and what materials and equipment they will be using to make the repairs.    The USFS says that it has approved Tombstone's requests when it has provided the information necessary to determine that the Wilderness Area would not be inappropriately disturbed for other users.  There also is a dispute about the extent of Tombstone's water rights in the mountains - Tombstone's claims are based on maps and springs systems that the Forest Service claims are difficult to determine today.

The appeal on the denial of the injunction was argued by the Goldwater Institute (for Tombstone) and the USFS on Tuesday, after the U.S. Supreme Court twice refused to hear the appeal (on different grounds).

(There are other issues standing in Tombstone's way, as this article in its local paper sets forth.)

(Below: The "Background", as set forth in the May 14, 2012 Order)

The City of Tombstone (hereinafter, “Tombstone” or “Plaintiff”) seeks to prevent the
United States Forest Service (hereinafter, “USFS” or “Defendants”) from interfering with its
ability to adequately access various water sources that deliver water to Tombstone. The water
system in question is within the Coronado National Forest in the Huachuca Mountain
Wilderness Area. During the summer of 2011, there was a large fire in these mountains (the
Monument Fire) that destroyed vegetation; after the fire, there was a large amount of rainfall
that caused rocks and debris to slide down the mountain that damaged the water system.
Tombstone claims that it is facing a serious water shortage as the water system in the
Huachuca Mountains is a significant source of its water. Tombstone claims that while it has
three separate wells that it can and does use to supply water to the city, there have been
problems with contamination that limit the full use of this well water.
Tombstone claims that since approximately September of 2011, it has been attempting to
access areas in the Huachuca Mountains to repair its water system, but that officials from the
USFS have hindered their efforts by insisting that they need authorization from the USFS to
access the land and make the repairs. The USFS has been insisting that they specify what
repairs they plan to do as to each damaged section of the water system, and specify what
materials and equipment they will be using to make the repairs. Tombstone claims that it is
not required to receive authorization from the USFS, and even if it was, that it has given the
USFS enough information to authorize all of its requested actions in the Huachuca
Mountains. Tombstone claims that it has been using the water system in the Huachuca
Mountains since the 1800's, and that there are numerous property filings and documents
exchanged with the federal government that reflect that it has ownership or a right-of-way
on the federal National Forest land at issue to go on the land unhindered by the federal
government to address the water system.
Defendants dispute Plaintiff's position, argues that its position is based on vague, informal,
unsubstantiated documents, and that determining water rights and rights to land dating back
to the 1800's is a fact intensive task that can not be decided at this very early stage of the
litigation. In contrast to Tombstone's position, the USFS claims that it has devoted an
immense amount of resources and done everything in its power to expeditiously authorize
Tombstone's requests to address the water system in the Huachuca Mountains. However, the
USFS argues that it is required by federal statutes and regulations (including the National
Environmental Policy Act-"NEPA" and the Endangered Species Act-"ESA") to evaluate the
impact Plaintiff's proposed actions will have on the National Forest areas in question. For
example, when a party proposes to use mechanized equipment on National Forest land such
as Plaintiff, the USFS evaluates that action and issues a Minimum Requirements Decision
Guide ("MRDG") specifying the appropriate equipment and actions that can be taken on
federal land such that damage is minimized to protected areas such as the National Forest.
Plaintiff, for example, seeks to engage in ground-disturbing activities with heavy equipment
(excavators, tractors, etc.) that have to cross in and out of federal land, disturb the land by
digging and removing land, and removing damaged materials and inserting new materials
into the land to address the water system. As the USFS is charged with the responsibility of
preserving National Forest land for the enjoyment of all citizens, it argues that it required to
evaluate and authorize Tombstone's actions. To perform this task, the USFS argues that it
has informed Tombstone on numerous occasions that it must submit site specific information
informing it of the specific actions, materials, and equipment it plans to use at damaged sites.
Despite numerous requests by USFS, it claims that Tombstone has largely failed to provide
the specific information requested such that USFS can perform its mandated duties to
evaluate Tombstone's actions. For example, the mayor of Tombstone requested a blanket
permit to address all of its claimed springs in the Huachuca Mountains based on his position
that Tombstone had a right to access the land in question to repair the water system without
interference; this demand appears to be based on a hand-written 1901 sketch map that
appears to show numerous springs in the Huachuca Mountains. However, as this 1901 map
had no detailed information pertaining to the site specific activities, materials, and equipment
that would be used, the USFS could not issue any authorization (blanket or otherwise). In
addition, the USFS argues that it has had numerous meetings with Tombstone informing
them of the information they need, and have had USFS engineers and other personnel work
with Tombstone to give them recommendations on the type of materials, equipment, and
action to take to receive authorization for work from the USFS.
To the extent Tombstone has submitted site specific information informing it of the
specific actions, materials, and equipment it plans to use at damaged areas, the USFS argues
that it acted as quickly as possible to authorize the repairs, and that it has already
expeditiously issued authorizations to Tombstone. The USFS argues that Tombstone has
repeatedly failed to provide site specific information as to each location, and that
Tombstone’s failure to do so has resulted in an inefficient, piecemeal process that has
resulted in unnecessary delays for Tombstone. In addition, Defendants argue that Tombstone
has otherwise failed to provide sufficient information entitling it to unfettered access to the
25 water sources at issue, Plaintiff’s water from the Huachuca mountains has been
substantially restored, Plaintiff currently has access to sufficient and safe water between its
wells and the Huachuca water, and that Plaintiff’s claims of a drastic water emergency
related to public consumption and fire needs are overstated and speculative.
The Court agrees with Defendants’ position.

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