Tombstone, Arizona Clings to Life

The Monument fire last June destroyed over 30,000 acres, some of it endangered species habitat, in Cochise County, Arizona. It also destroyed the primary source of water for Tombstone, Arizona, a town of 1,500 and, owing to its fame, host to more than 400,000 visitors each year. Within days of the fire being extinguished, the town already knew they had a big task on their hands. Flooding that followed the fire destroyed the catch basins as well as some of the pipeline.

As of right now Tombstone still has water thanks to some wells, but they said they're just not enough. Kern said, "Our wells can keep up but if we had a major fire or something in town that could drain our water supply really fast."

Because of that risk, workers said they're not going to let Mother Nature beat them, but fixing the mess won't be easy.

Wright said, "It's do-able. To think they did it in 1880 and did it all by hand, I guess we can find a way to put it back."

City works said they're confident they can get in here, get everything cleaned up, and build new water basins but they're going to have to wait because the flooding probably isn't done. They said if they do any work the next flood will likely wash it all away.

Now, almost a year later, the town is starved for water, forced to rely on two ground wells (one compromised by arsenic) to meet its needs, although it normally draws 50 to 80 percent of its water from springs in the Monument Fire burn area. The delay is not caused by Mother Nature, or by a technical problem.

The City of Tombstone is squaring off against the U.S. Forest Service over water rights in a fight to rescue “The Town Too Tough to Die.” Citing the Wilderness Act, the Forest Service is refusing to allow the city to repair its waterlines to mountain springs it has owned for nearly seventy years – and which date back to the 1880s. This refusal is threatening residents, private property and public safety with the risk of a total loss of fire protection and safe drinking water.

George Barnes, Tombstone’s city clerk and manager notes that not only tourism, but property and lives are at risk due to the delay.

According to Barnes, the city is especially worried about the prospect of fires, as there are concerns about not having enough water to extinguish building fires in the historic town.

“We have two days supply — that doesn’t allow for a building fire, a well-pump failure; it doesn’t allow for much of anything. We’ve been walking on egg-shells for six months,” he said.

A decision from U.S. District Court Judge Frank Zapata is pending. The city expects appeals, regardless of the decision, and anticipate that at best another two to three months will pass before they even find out if they will be allowed to begin repairs. In the meantime, the town resides on the edge of a precipice, hoping the wrong emergency won't come to pass.

"The issue here goes beyond our traditional water rights,” Barnes said.

“It goes into a pretty gross overreach by a federal agency in a declared state of emergency. The governor here has declared a state of emergency for us specifically, and the federal government — in this case the Forest Service — is saying, ‘That’s great, yeah there is human life at risk, but don’t worry — we have the spotted owl.’ And I love the spotted owl, but come on!”

Are you ready for the punchline? Better sit down. The habitats supposedly being protected against encroachment by the Forest Service were destroyed in the fire.

The Goldwater Institute has joined the battle on the side of Tombstone.

The Goldwater Institute seeks to uphold the principle that the 10th Amendment protects states and their subdivisions from federal regulations that prevent them from using and enjoying their property in order to fulfill the essential functions of protecting public health and safety.

The Tenth Amendment Center recently featured an essay by Joel Poindexter that points out the drawbacks of expecting a happy ending by pursuing a legal remedy.

It can be argued that asking a federal judge, in a federal courtroom, to curtail a federal agency is one of the least effective and logically unsound ways to go about solving problems caused by the federal government... The federal courts are hardly an impartial venue, and federal judges aren’t exactly objective arbitrators. The federal government is a disputant in the case, so the idea that it should judge the outcome on its own turf is laughable when the analogue of two neighbors arguing over a boundary dispute is considered. If one’s brother is appointed the arbitrator, who could believe he won’t be naturally biased one way or another?

He goes on to point out that "more bad weather could exacerbate the problems and ruin those struggling to hold on." And if the courts ultimately rule against Tombstone, what recourse will they have?

He then suggests a few alternative solutions.

• The state senate could pass a bill reclaiming the land and allowing property owners to repair the destroyed water system.
• The city itself could take similar legislative action.
• The city could just bypass the legal system entirely and begin the repairs, ignoring the Forest Service ruling.

I'd like to suggest another alternative, based on the story I related in Accidental Agorists Repair a Road. Perhaps the citizens themselves should organize a work party and take the issue out of all the authorities' hands, providing "new guards for their future security." If Hawaiians can rebuild a road without government help or permission, I'm willing to bet the citizens of "The Town Too Tough to Die" could do the same with their water supply.

What say you, Tireless reader? Should Tombstone wait, or seek resolution in one of the ways outlined above? Or do you have a better suggestion for the town?