Water rights dispute pitts Tombstone vs. Feds - San Pedro Valley News-Sun: News

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Water rights dispute pitts Tombstone vs. Feds

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Posted: Wednesday, December 19, 2012 12:00 am

Standing before Tombstone City Council members during a recent meeting, former councilman Steve Troncale urged the group to table an agenda item regarding the termination of temporary crew members who have been working on the city’s waterline.

Tombstone has filed a lawsuit against the United States government regarding a disagreement the city has with the U.S. Forest Service. The waterline, with interpretations of ownership and the city’s access to it, are central to the lawsuit which is scheduled to be heard in Federal Court sometime in January. Troncale urged council members to consider tabling the crew’s termination until after the issue is litigated, expressing concerns about the impact the change could have on the case’s outcome.

In a 3 to 2 vote, the council followed Troncale’s recommendation and tabled the crew’s termination until after the case is heard in federal court.

The council’s decision came on the heels of a Dec. 4 hearing where an emergency injunction filed by the City of Tombstone to make repairs on the waterline was heard before the Ninth Circuit Court of Appeals. Attorneys Nicholas Dranias and Christina Sandefur of the Goldwater Institute represented Tombstone in the appeal that was heard in San Francisco, with oral arguments presented by Dranias.

Following the Monument Fire of 2011, the city’s waterline was damaged by rocks and mudslides during heavy summer storms in areas where the line goes through the Huachuca Mountains. Citing the Wilderness Act, the U.S. Forest Service restricted Tombstone from taking motorized equipment into areas where the line lies within protected regions. The City of Tombstone filed an emergency injunction in an effort to “restore the water supply to original specifications.”

Tombstone argues that it owns the water rights to the 130 year-old-system, pointing to such archived documents as deeds and maps that date back to the late 1800s, along with a 1962 special use permit from the forest service. Included in those documents are 26 springs and one reservoir that feed into Tombstone’s water system. While the forest service has granted permits for Tombstone to conduct infrastructure work using motorized equipment at some of the springs, city officials say they need access to all the springs on the system in order to fully restore the water system, including the mechanized equipment to do the required work.

“When we initially applied for an emergency injunction on Dec. 5, 2011, we expressed concerns about the impact the monsoons would have on the waterline at that time, but the court ruled against us,” said Nancy Sosa who, as Tombstone’s archivist, has testified about the waterline and provided documents regarding the city’s claims of ownership. “During the following summer, repairs that were made in Carr Canyon were destroyed by the 2012 monsoons, which is exactly what we feared would happen.”

After the waterline was damaged in 2012, Tombstone filed another emergency injunction, which the Ninth Circuit Court decided to hear.

Tombstone is requesting an emergency injunction that would allow repairs at all 26 springs, and not be restricted to the three sites at Gardner, Carr and Marshal Canyons.

“The City of Tombstone is asking to freely and fully restore its municipal water supply to the original specifications that appear in the appellate brief,” said Dranias during a phone interview. Tombstone wants to restore all the springs and all infrastructure included in the 1962 special use permit provided by the forest service. However, in 1984 when regions of the Huachuca Mountains were designated as a wilderness area, sections of the line that run through the wilderness area fell under the protection of the forest service.

During the city council meeting last week, Troncale read the following email from Dranias regarding the waterline crew’s termination and the potential impact it could have on the case. “Any substantial change in the City’s current policies relating to the repair of its Huachuca Mountain water infrastructure could have an adverse affect on the pending litigation,” Dranias wrote. “This includes any change in policy relating to the current Huachuca Mountain work crew.”

Dranias added that the current crew members are witnesses to events that form the basis of the city’s claims against the forest service. He expressed concerns about locating the individuals or “securing their cooperation in supporting the City’s litigation efforts” if they were to be terminated. “I am also concerned that someone might get the false impression from the termination of the work crew that the City no longer perceives the need to restore its Huachuca Mountain infrastructure as an emergency,” he added.

The spring crew, which was hired as “Temporary Full Time,” was on the council’s agenda to be terminated because of financial problems the city is going through. All city staff has been cut to 32 hours a week. While the council voted to retain the crew, the hours they work have been cut to 20 per week. Once terminated, the crew will be replaced with the city’s public works staff.

During an interview following the council meeting Troncale said, “I think the council made the right decision. This next court date in January is critical.”

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