Today, on behalf of the Cato Institute and a coalition of Western-state public policy and research foundations, we filed this amicus brief in supporting the City of Tombstone's cert petition in City of Tombstone v. United States, No. 12-1069 (cert. petition filed Feb. 27, 2013).
In that case, in 2011 a forest fire in the Coronado National Forest and later monsoon rains damaged the city's sources of municipal water. The city and the State of Arizona declared a State of Emergency, but the U.S. Forest Service limited repair efforts by requiring the city to apply for a special permit and placing limitations on its use of equipment. Because it alleged the loss of water from these sources limited its ability to repond to fires, Tombstone sought a preliminary injunction prohibiting the Service from impeding its repair efforts. The District Court denied the injunction, and the Ninth Circuit affirmed, agreeing with the District Court that the federal government had not "comandeered state property or improperly regulated the State."
Here's the summary of our brief's argument:
If the states have the power to regulate private uses of federal land to further "environmental" goals -- as this Court held in California Coastal Comm’n v. Granite Rock Co., 480 U.S. 572 (1987) -- then surely under the powers reserved to them by the Tenth Amendment, states also possess the right to access and use federal land to respond to emergencies to protect the lives and properties of their residents, without undue interference from federal bureaucrats. The national government’s expansive authority to regulate federal property is thus not exclusive, particularly when states act under their emergency powers to protect life and property. Without clear guidelines delimiting the scope of the federal government’s authority in such cases, states and municipalities will be left wandering the virtual desert, relying on the sufferance of federal administrators alone for their continued existence.
This brief addresses a single issue: whether the City of Tombstone is likely to succeed on its claim that its ability to access and repair the sources of its municipal water located on federal land is not trumped by the federal government’s authority under the Property Clause, but rather is a traditional government function reserved to the states. Amici respectfully argue that it is, so this Court should review the important issues raised in Tombstone’s petition.
The case is scheduled for the Supreme Court's conference of April 12, 2013.
Here's more from Ilya Shapiro at Cato.
