Picking on the Little Guy
Little Guy Picking on the Littler Guy
If this reads like a Wild West tale, there's a reason. It IS a Wild West tale! Only, this one is real!
Tombstone, Arizona made history of sorts when it decided to railroad over some small property owners in the mountains. Tombstone is the little guy. The littler guys were the landowners in the mountains. Tombstone currently has a population of around 1500 people.
Basic story: A couple of years ago, there were some widespread and devastating forest fires in the Huachuca Mountains. These mountains are just north of the Mexican border in southeastern Arizona. Following the fires, which stripped the land, monsoon rains likewise stripped off topsoil and boulders and washed them down the mountainside, causing flooding and other damage to homes and property. Likewise, Tombstone's ancient water line was damaged severely by all of this.
Tombstone decided to seek to repair the water lines, but they weren't content just to repair them. They wanted to expand them, and on their own authority, went into the mountains, widening roads that didn't belong to them, and tearing out trees on national forest land and private property.
There has been litigation.
I personally know some of the property owners in the mountains. I also drive through Tombstone every time I go birding at Whitewater Draw, and I recognize many of the buildings.
This is a classic case of the situation where some family member jumps down your throat about something, and you don't feel able to fight back, so you kick the cat.
This is the story of that situation.
Illustrations either part of the Creative Commons or used under the Fair Use Doctrine.
Why the Wildfires Happened
I will be writing more details on some of this in another Lens, but I want to explain this particular situation. In most of Arizona, as a result of too little rainfall (well below normal) for a number of years, together with lack of management of the forests, have left vast tracts of forest with trees infested with beetles and basically dead. In a properly managed forest, these trees would have been cleared out. Loggers used to do this. They also used to put in firebreaks, which would limit the spread of fire. In addition, it has been a practice for a long time of stopping forest fires that arose spontaneously, together with prescribed burns, some of which got out of control because weather conditions weren't what they expected.
Enter the environmentalist movement. While well-intentioned, most people in the movement are not familiar with the ecology of forests. They think that old growth trees are so vitally important, they should never be cut down, even if the trees are sick or dead. They drove loggers out. They try to take rights away from inholders.
I am an inholder. My property shares a property line with a national park. Inholders are the first people to discover a forest fire and report it. We tend to leave our own land in the natural state, except possibly immediately around the house. We usually understand the local ecology and the micro climates and ecological oases in our area better than anyone else. But when it comes to preserving the natural beauty, everyone is against us.
The forests in the Huachucas are full of dead and dying trees, trees so rotten their wood is like tinder.
If I recall correctly, this fire was started by an illegal alien. But I don't remember that for sure. People don't tend to think about the damage illegals can do to our natural resources, but in this part of the country, it is widely known that many of them trash the countryside with what they leave behind. Some washes are full of trash. The borders need to be enforced, for our sake. The government needs to make sure that people who would contribute to our country have a reasonable way to immigrate if they choose to do so. Right now, this is a rare possibility, and things are really messed up. That's a discussion for another time.
Fighting fires in such rugged terrain is very, very difficult. It is dangerous because wind drafts (much stronger during a fire) endanger aircraft. Being on the ground feet away from flames shooting 50 feet into the air is no picnic, either. These fires usually take weeks to bring under control. While it is the case that new pine trees will only germinate after a fire, and there are some wildflowers that mainly grow in ash from fires, forest fires of this magnitude tend to be so destructive that the forest may never grow back at all! I know of slopes in the San Francisco Peaks that were denuded by fires decades ago, and they still have no signs of regaining their growth.
It makes no sense to try to preserve old growth dead trees and lose the whole forest as a result!
Next Came the Monsoon Floods
Forest fires usually burn during the season we call Dry Summer. This is followed by Wet Summer, when the monsoon rains come. Dry Summer usually runs from about May to July, and Wet Summer runs from July to October.
Once the vegetation has all been burned, there is nothing left to hold the topsoil. While monsoon rains will often help firefighters finally stop a fire, they also wash the unbound topsoil down the mountainside.
This is what happened in the Huachuca Mountains. In canyons where the fire damage was extensive, monsoon rain washed tons of dirt down the lower parts of the canyons, all the way down the mountainside. Homes that were in the path got flooded. In the case of one homeowner/landowner I know, the bottom story of a two story building was filled with mud. He had a beautiful pond. Washed away. They had been raising endangered frogs in that pond. During the fires, he and his son had hauled 5 gallon buckets of water up the hillside to douse the cabins so they wouldn't burn. They were saved, and weren't damaged by the floods. But the lower area totally changed. They had 3300 organic apple trees. The fire and floods destroyed 3000 of them. Tombstone ripped out some of the rest. If that weren't bad enough, Tombstone also cuts off all the water to that property, at least some of the time, so that they can't water the trees they have left. They DO share water rights with Tombstone. I have been there once since, and it is heartbreaking to see what the fire and subsequent floods did.
Tombstone had no idea how to grade roads in that environment. They graded the road up to the spring in such a way it would wash out in the first serious rain. It did. It left a 3' deep gully behind.
The floods washed away soil under Tombstone's water pipeline, sometimes leaving it 10 feet above ground. Boulders broke the line in a number of places. The water pipeline had been built, if I recall correctly, in the late 1800's. They had permission from the federal government to build it, but acquired no title to land along the path of the water line, nor did they get easements in parcels that were patented out to private owners. Obviously, such an old water line would be benefited by updating it. But that's where the sensible part of the issue ends.
Link List - I'll let you see this for yourself
One of the most prominent landowners in Miller Canyon, in the Huachucas, is Tom Beatty, together with his wife and son. They are prominent only in the sense that they are well known among birders. They keep hummingbird feeders in place throughout the summer, and attract some species that no one else sees. They also have Spotted Owls. Spotted Owls are an endangered species. I have taken many a photo of rarities there. That's why I know them. Here is their report, with pictures, and it is extensive.
The Legal Issues
This portion of Arizona was originally purchased from Mexico. It is known as the Gadsden Purchase. The United States and Mexico made a bargain that was acceptable to both. The federal government retained title to most of this land, but made it available for settlement.
The mechanism for settlement was provided by federal laws. These laws provided the conditions for conveying parcels of land into private ownership, and also included a set of subsidiary laws that awarded individual parcels. These subsidiary laws are known as land patents, and they are passed by Congress and signed by the President, just like any other law.
There were three types of land patents issued.
The railroad patents (which doesn't involve this part of Arizona so far as I know, but I don't know for sure) awarded square miles of land in a checkerboard pattern, with the parcels of the other "color" being retained by the federal government. The railroads sold the parcels they received to raise money to construct the railroad. The major railroad built this way was the transcontinental railroad. The railroads were free to sell these parcels or portions of them, to private individuals of their choice.
Mining patents granted rights to the minerals in the ground. Owners were free to mine the parcels for whatever was of value, and to sell it. They had to plan to mine it to get the patent. In some cases, homestead patents did not grant mineral rights, that could subsequently, at least theoretically, be sold to people who wished to mine.
Homestead patents granted a parcel to a person who either lived on the land or farmed it, or both, for a period of 18 months. Then the patentee paid $1.25 an acre for the land, and received the patent.
All of these are what is known as allodial title. This means that the government retains no rights to determine what happens to the land. In some cases (homestead patents in desert land), the federal government would retain the right to construct and maintain waterworks on the land. No other feudal duties were imposed on the land by anyone, not the federal government, not the state government, and not local governments. If any of these governments wanted to place duties on the land, they had to speak up during the patent proceedings, because once the patent issued, these were forever barred.
The Beattys are successors in interest under a homestead patent. I have seen their land patent. Tombstone failed to assert any rights in the patent.
Unfortunately for Tombstone, it relied on a letter from someone in the federal government that it had a right to build and maintain water lines up the mountains. When land patents were subsequently issued to land that contained part of the water line, Tombstone failed to speak up and ask for an easement for their water line. The result is that, legally speaking, they don't have an easement across private lines. Because water law protects water use that is grandfathered, their water line could continue to be used, but they would have to enter private property to repair the lines, and because of the lack of an easement, they were trespassing on private land when they did so. Above all, they sure didn't have the right to destroy trees on private property!
Court Cases on Land Patents
Land patents convey title to the patentee. Any other party that wants rights to the land in any way must assert this during the patent proceedings. Once the patent issues, without any easement on behalf of the other party, it is a collateral attack and is forever barred.
- Leo Sheep Co. V. U.S.
If the government wants an easement over your land, and you assert the land patent, it has to pay for the easement.
- Summa Corp. v. California
California wanted to establish a public trust easement over Summa Corp's land. Held: if an easement is not asserted at the time a patent is issued, it is forever barred.
Daily re-enactments of famous gun battles are held here and in other locations in Tombstone. I have a friend who used to live in Tombstone, and he participated in these.
This is Allen Street. It is a major attraction for tourists. The town's industry is basically tourism.
Another familiar scene for me.
Relying on a letter from some government official, Tombstone decided it has the right to repair its water lines without asking anyone else permission, even over private land, even though it has no legal right to do so.
Tombstone has a number of wells near the town. Some of these have been contaminated with arsenic. Some are in disrepair. Although Tombstone received grant money to fix its water problem caused by the fire and floods, it didn't use the money to repair any of its existing wells. The water tank for the city is badly in need of repairs. It loses 100,000 gallons of water a day. Tombstone declined to use the grant money to repair the water tank.
Tombstone also has another option. It can get water from the nearby town of St. David. The town is closer, and running a pipeline to the town would be trivial. It could be run alongside the highway. The town has good water and artesian pressure. I don't think anybody has suggested this. To me, it sounds like a better answer.
When Tombstone first started to deface the land in the canyons of the Huachuca Mountains, landowners appealed to the Forest Service to help them protect the area. The Forest Service was reluctant to get involved. It took a few weeks before they could be persuaded, and at that point, they did take steps to bar Tombstone from damaging the area.
Some people wanted to blame the President for this. The theory is that this is revenge against Arizona for standing up to him on the immigration issue.
The President probably didn't know a thing about it. He's too busy playing golf. It was local people who got the Forest Service to act. I don't particularly care for this guy, but I think it's stupid to blame him for something that is not his fault. There are plenty of other legitimate issues to oppose him about.
The Goldwater Institute decided to sponsor a court fight. I have started to ask huge questions about this organization, partly because they didn't read the situation correctly, and partly because their executives are apparently getting an obscene salary. They may have been legitimate at one time, but now I wonder.
The governor sided with Tombstone. I doubt if she knows much about the situation, either.
Interestingly, roughly half the residents of Tombstone do NOT want the local government to pursue this harassment and rebuilding. This resulted in a recall election against the mayor, and he was ousted. Unfortunately, the new mayor didn't fix the problem, either. It has been my experience that local governments tend to be more repressive than larger governments simply because there are fewer people per government official, to harass, so you are more likely to get picked on.
The Forest Service told Tombstone they couldn't use machines up there. Horses and shovels were allowed. Because of the situation, someone organized a shovel brigade, so that they could go up and dig for the pipes. On the appointed day, instead of the 1000 people they expected, they got about 40, half of them media. Of the remainder, some were children, who shouldn't have been up there for safety reasons, and some shouldn't have been hiking around up there because of health issues. One man and one horse had to be rescued. The affair was a gigantic flop.
When landowners told people from Tombstone to stop trespassing on their land, Tombstone chose to file suit against the landowners. Kicking the cat! Part of one lawsuit has been dismissed.
Timetable of events:
2011: fire and floods
2012: suit filed against the Beattys
It is now mid 2014 and nothing has been settled. Not even the lawsuit against the Beattys. The courts really haven't taken too kindly to Tombstone's monstrous actions against the littlest guys. Tombstone is just wasting resources for no good purpose. In the meantime, they haven't bothered to fix their water infrastructure. Nothing has changed. People are looking for the Spotted Owls again, and I get reports of other birds that have been seen there.
It's just as disgusting as it always was.
An Ongoing Saga
This situation is far from settled. I will post updates from time to time. May justice prevail!
Duel Debate Module
Which side are you on?