Here’s the amicus brief of the Coalition of Arizona/New Mexico Counties for Stable Economic Growth, supporting the petitioner City of Tombstone in City of Tombstone v. United States, No. 12-1069 (cert. petition filed Feb. 27, 2013). [Disclosure:we also filed an amici brief in the case in support of Tombstone.]
The case arose after the combination of a devastating forest fire and later heavy rains laid waste to Tombstone’s sources of muncipal water, deep in the Coronado National Forest. As the New York Times reported here:
Tombstone’s water system is as old as the city itself, and most of the parts that are functioning, which are few, were damaged last year by rocks and trees dragged downhill by runoff from the summer monsoons. The city set out to repair the system’s connections to three of the 25 springs to which it claims to have a right; connections to the other springs are inoperable or nonexistent.
Local officials were under the impression that a state of emergency declared because of a wildfire that came before the rains would make things easy. But after weighing the city’s predicament and the precarious state of the forest and its wildlife, Jim M. Upchurch, the forest supervisor at Coronado, issued a split decision: bulldozers and tractors would be allowed in the lowest of the damaged areas to move truck-size boulders that had crashed onto the pipe, but they could not be used elsewhere.
In other words, the U.S. Forest Service ruled that repairs “would have to be done by hand.”
The Arizona/New Mexico Counties’ amicus brief argues that the Ninth Circuit’s decision in this case created a split in authority between it and the Tenth Circuit over the scope of the rights-of-ways granted under an 1866 federal statute which encouraged Americans to settle the West and build and develop the necessary infrastructure to do so such as Tombstone’s water supply. The Ninth Circuit in this case held that the federal government, as the fee owner of the National Forest, has vitually unlimited rights to limit Tombstone’s repair efforts pursuant to the Property Clause. The Tenth Circuit, on the other hand, treats the federal government in these circumstances as a “normal proprietor under state law, affording the [federal] government the same rights as any servient estate owner in that state.” Br. at 15 (citing Southern Utah Wilderness Alliance v. Bureau of Land Management, 425 F.3d 735, 748 (10th Cir. 2005)). The brief also argues that in the Tenth Circuit, the Property Clause is never invoked.
The SG has waived the federal government’s right to respond, and the case is set for the Court’s conference on April 12, 2013. More to follow.