The historic city of Tombstone, Arizona is in a fight for its very existence. In 2011, a large wildfire followed by record flooding severely damaged canals and other infrastructure which the City has owned and depended on for water since the time of Wyatt Earp. As a result, both the City and Arizona Governor Jan Brewer declared a State of Emergency on July 26, 2011 and August 17, 2011, respectively. Under the authority of these emergency declarations, the City immediately began its restoration work using mechanized equipment and vehicles paid for with a grant from the State.
Yet when the city began its efforts, Federal regulators intervened, declaring that the City and State could not proceed, because repairing the canals would require state and city construction crews to cross federal lands. Accordingly, if the City wished to repair its infrastructure by any means other than horses and hand tools, it would need a special use permit from the Federal government — which the feds subsequently refused to grant.
The City has now taken its fight all the way to the United States Supreme Court. In it’s petition filed with the Court, the City argues that by preventing it from repairing its waterways the federal government has violated the Tenth Amendment by essentially denying the City the ability to preserve its existence.
It’s a novel argument, but not completely unprecedented. The Tenth Amendment provides that any powers “not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Historically, the Supreme Court has viewed the Tenth Amendment as an enshrinement of certain principles of federalism– namely that the states are independent sovereigns with broad powers to protect the health and safety of their citizens. Accordingly, the Court has expressed that it is skeptical of federal laws which are “destructive of state sovereignty” or eliminate the traditional dual-sovereign nature of our government.
On the other hand, when the federal government is exercising one of its enumerated powers, the Court is not likely to bar federal action merely because the results of that action are inconvenient to a state entity.
Regardless which way the case comes out, it will have far reaching implications for states all across the west. In states like Arizona the federal government owns nearly half of all the land in the state. Thus, water- which is both scarce and vital in those areas- often has to travel across federal lands to reach its destination. If the federal government has the authority to turn off the spigot whenever it sees fit, the existence of cities which depend on that water is on precarious footing.