By Nick Dranias
In a showdown between the Obama Administration and the “Town Too Tough to Die,” the U.S. Forest Service is refusing to allow the City of Tombstone to repair its mountain spring water infrastructure after the 2011 Monument Fire destroyed pipelines and catchments.
Despite Gov. Jan Brewer’s declared state of emergency to empower Tombstone to restore its municipal water supply, the feds continue to block Tombstone, citing the Wilderness Act, which was passed decades after Tombstone secured the water rights. The Forest Service’s decision risks the lives and properties of Tombstone residents and tourists due to the loss of adequate fire suppression capabilities and safe drinking water.
This is a case of egregious federal overreach. 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. That’s why the Goldwater Institute recently filed for a preliminary injunction to restore Tombstone’s sovereign power to restore its municipal water supply.
There is plenty of reason to believe that Tombstone will ultimately prevail. The Supreme Court is already familiar with federal overreach in Graham County, Arizona. In Printz v. United States, the Court rejected efforts by the federal government to commandeer the Graham County Sheriff into implementing a federal gun control law, writing, “the Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States.” The Forest Service is openly flouting this principle of law.
By denying Tombstone access to its water, the Forest Service is threatening to directly regulate Tombstone to death. Printz makes it clear that the Forest Service has no such constitutional power — not if the guarantee of state sovereignty means anything under the Tenth Amendment.
Nick Dranias holds the Clarence J. and Katherine P. Duncan Chair for Constitutional Government and is director of the Joseph and Dorothy Donnelly Moller Center for Constitutional Government at the Goldwater Institute.
Justia.com: Printz v. United States