http://www.azcentral.com/business/abg/articles/20120621tombstone-appeals-repair-water-supply.html

A federal appeals court is being asked to decide whether Tombstone gets to repair its damaged water supply, one that city officials insist is critical to keeping the town from burning down.

Attorneys for the Goldwater Institute, who are representing the city, want an order giving municipal workers the right to bring heavy equipment into the wilderness area of the Huachuca Mountains to do the work.

So far, though, the city has struck out at several levels.

A federal trial judge said he found no evidence of any immediate need to short-circuit the normal legal review. And a petition to have the U.S. Supreme Court intervene on an emergency basis was rejected by two justices.

The fight is a direct outgrowth of last year's Monument Fire, which burned much of the area of the mountains southeast of Sierra Vista where the springs that feed Tombstone's water supply are located. But the real damage came later, when record rains caused massive mud and rock slides.

"With no vegetation to absorb the runoff, huge mudslides forced boulders -- some the size of Volkswagens -- to tumble down a mountainside crushing Tombstone's waterlines and destroying reservoirs," attorney Nicholas Dranias wrote in legal briefs.

Gov. Jan Brewer declared a state of emergency in August, providing funds for repair. Based on that, the city said it rented earthmoving equipment and vehicles to make repairs.

Dranias said, though, that although federal agencies allowed the city to repair two of the springs, they have disputed Tombstone's entitlement to restore the remaining 23.

"And since March 1, 2012, defendants have refused to allow Tombstone to use anything other than hand tools to restore any part of its water system," he wrote.

Part of the issue is related to the question of whether permits and review are needed to ensure the machinery will not cause environmental damage. Dranias dismissed that as meaningless.

"It's a moonscape up there," he said of the area the city wants to repair. And Dranias said documents obtained from the U.S. Fish and Wildlife Service show no evidence of any animals actually living in the immediate area.

The bigger issue, though, is whether Tombstone is actually entitled to the water in the national forest.

City Manager George Barnes said Tombstone has a legal claim based on historic water law.

After being established as a village in 1879, it was given authority, through the Huachuca Water Co., to come up with a water supply. Based on that, village officials over the years located multiple springs on public lands in the Huachuca Mountains, 26 miles across the San Pedro Valley.

Barnes said the way the law worked at the time, the city, which now owns the water company, was entitled to acquire the water because it had appropriated it. He said that automatically included access to the land where the water is located.

He said the law has since been changed, with someone actually required to obtain title to the land first to access the water.

But Barnes said the city's claims were legally valid when made and remain legally valid today.

The federal government, however, said none of that grants the city unfettered right of access.

"What Tombstone ignores is that its alleged 'vested rights' -- to the extent they exist -- are rights of use in federally owned land that derive solely from authority granted by Congress," wrote Joanna Brinkman, an attorney for the U.S. Department of Justice, in its legal papers opposing the city's bid for immediate access. She said Congress, in turn, has given the authority to the secretary of Agriculture to make rules and regulations about the occupancy and use of national forests.

Even if the city has some sort of vested right, Brinkman wrote, that is still subject to "reasonable regulation."

Dranias acknowledged the city still has a water supply, including an underground well and water from the two springs. But he said that is not enough to handle an emergency.

But U.S. District Judge Frank Zapata last month denied the city's request for a declaration that it is entitled to immediate access to the land where the springs are located. He said there was no evidence of an emergency.

"It appears that (the city's) water from the Huachuca Mountains has been substantially restored," the judge wrote. He said Tombstone currently has access to sufficient and safe water between its wells and the Huachuca water.

Zapata called the city's claims of a water emergency "overstated and speculative."

In seeking review by the 9th U.S. Circuit Court of Appeals, Dranias also is raising constitutional issues, saying the federal government's action is infringing on states' rights.

"It threatens Tombstone's continued existence as a political subdivision of the state, commandeers Tombstone's essential municipal property, and regulates Tombstone as a political subdivision of the state of Arizona in such a way as to violate the principle of state sovereignty," he argued.

Dranias said although this fight involves only Tombstone, the implications of whatever the courts decide are more far reaching.

"The viability of Arizona and other water-poor states is really at risk here when the federal government can just seize control of long-established water rights during a state of emergency," he said. "And the precedent that that sets, if they can get away with it, threatens everyone who has any sort of water rights in this area, which, of course, is the foundation of our economy and the whole reason why we're out here."

The case is Tombstone vs. United States 12-16172.

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