UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. No CITY OF TOMBSTONE Appellant. v. UNITED STATES OF AMERICA, et al.

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1 Case: /18/2012 ID: DktEntry: 21-2 Page: 1 of 22 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No CITY OF TOMBSTONE Appellant v. UNITED STATES OF AMERICA, et al. Appellee On Appeal from e United States District Court for e District of Arizona Case No. 4:11-CV FRZ The Honorable Frank Zapata, District Judge BRIEF AMICUS CURIAE OF COALITION OF COUNTIES IN SUPPORT OF APPELLANT CITY OF TOMBSTONE Karen Budd-Falen Budd-Falen Law Offices, LLC 300 E. 18 Street/Post Office Box 346 Cheyenne, WY (307) (307) (Facsimile) karen@buddfalen.com Attorney for Amicus Curiae Coalition of Counties

2 Case: /18/2012 ID: DktEntry: 21-2 Page: 2 of 22 CORPORATE DISCLOSURE STATEMENT Pursuant to Fed. R. App. P. 26.1(A), Proposed Amicus Curiae, e Coalition of Arizona/New Mexico Counties for Stable Economic Grow ( COC ) is a nonprofit corporation. This corporation is comprised of county governments, businesses, organizations and individuals in 13 counties in Eastern Arizona and Western New Mexico. Its mission includes protecting rural economies of Arizona and New Mexico, maintaining and increasing e economic base which results from federal lands, establishing and protecting private property rights of individuals and industries which are dependent on federal lands, and e introduction of new regulations which impact management of federal lands and private property. The COC is not a publicly-owned corporation, nor is it owned by any parent corporations. i

3 Case: /18/2012 ID: DktEntry: 21-2 Page: 3 of 22 TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT i I. STATEMENT OF IDENTITY AND INTEREST OF AMICUS CURIAE.. 1 II. SOURCE OF AUTHORITY TO FILE AMICUS BRIEF III. SUMMARY OF ARGUMENT... 2 IV. ARGUMENT A. Rights of Way Established Pursuant to e Act of 1866 Are Not Superceded by e Property Clause, and Include e Right to Maintain ose Rights of Way... 3 IV. CONCLUSION CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE CERTIFICATE OF DIGITAL SUBMISSION ii

4 Case: /18/2012 ID: DktEntry: 21-2 Page: 4 of 22 CASES TABLE OF AUTHORITIES American Pelagic Fishing Co., L.P. v. U.S., 379 F.3d 1363, 1372 (App. 2004) Bear Lake & River Waterworks & Irrigation Co. v. Garland, 164 U.S. 1, 12 (1896)... 4 Boquillas Land & Cattle Co. v. Curtis, 89 P. 504 (Ariz. 1907)... 8 Bristor v. Cheaam, 255 P.2d 173, 241 (Ariz. 1953)... 8 Hunter v. United States, 388 F.2d 148 (9 Cir.1967) Jennison v. Kirk, 98 U.S. 453, (1878)... 8 Kern River Co. v. United States, 257 U.S. 147, , 42 S.Ct. 60, 66 L.Ed. 175 (1921) Montana Wilderness Ass n v. United States, 496 F.Supp. 880, 888 (D. Mont. 1980) (construing 16 U.S.C.A. 478), aff d on oer grounds, 655 F.2d 951 (9 Cir. 1981) Souern Utah Wilderness Alliance v. Bureau of Land Management, 425 F.3d 735, (10 Cir. 2005) Strawberry Water Co. v. Paulsen, 220 Ariz. 401, 406 (App. 2008) iii

5 Case: /18/2012 ID: DktEntry: 21-2 Page: 5 of 22 United States v. Garfield County, 122 F. Supp. 2d 1201 (D. Utah 2000) United States v. Jenks, 22 F.3d 1531, 1515 (10 Cir. 1994).... 5, 6 Utah Power & Light Co. v. United States, 43 U.S. 389, , 37 S.Ct. 387, 61 L.Ed. 791 (1917) , 8 Western Watersheds Project v. Matejko, 456 F.3d 922 (9 Cir.2006) STATUTES 16 U.S.C.A U.S.C.A U.S.C. 946 (repealed Oct. 21, 1976) U.S.C (1976).... 6, 7 Title VII, 704(a), 90 Stat RULES AND REGULATIONS 36 C.F.R A.R.S OTHER AUTHORITIES U.S. CONST. Art. IV 3, cl iv

6 Case: /18/2012 ID: DktEntry: 21-2 Page: 6 of 22 I. STATEMENT OF IDENTITY AND INTEREST OF AMICUS CURIAE Pursuant to its motion to participate in is matter as an amicus curiae, e Coalition of Arizona/New Mexico Counties for Stable Economic Grow ( COC ) hereby submits its brief in support of e Appellant and respectfully requests at is Court reverse e ruling of e Federal District Court for e District of Arizona in e above-captioned action. As set for in e motion to file is brief, e COC is a nonprofit corporation made up of county governments, businesses, organizations and individuals in Eastern Arizona and Western New Mexico. Approximately 65% of e land at makes up e 13 member counties of e COC is federal land. Therefore, e members of e COC are directly impacted in e determination of rights of way across federal land wi respect to roads, trails, ditches, water lines for distribution and water rights. Many of e member counties of e COC have existed since before e creation of e United States and have retained e original name given to each by e King of Spain. Additionally, many member counties established rights of way and water rights at were recognized by e King of Spain, Mexico and e Treaty of Guadalupe-Hidalgo. Many of e member counties water rights and rights of way at were recognized by e King of Spain are now located on federal land. 1

7 Case: /18/2012 ID: DktEntry: 21-2 Page: 7 of 22 The member counties of e COC have continually been forced to litigate against e United States Forest Service ( USFS ) in order to retain and continue use of eir vested water rights and rights of way. The member counties have been very successful in litigating eir vested interests; however, at litigation has been very costly and has created ongoing fiscal problems wiin e counties. Despite e member counties best efforts, a concrete resolution on rights of way and water rights of e counties has yet to be reached wi e USFS. Because e Court s ultimate decision in is case determines e retention and use of water rights and rights of way across federal land wiin a city and county of Arizona, e COC seeks to ensure at its members position in is matter is brought to e Court s attention for consideration. II. SOURCE OF AUTHORITY TO FILE AMICUS BRIEF Filed on even date herewi, is brief is accompanied by a motion seeking permission to file is brief, as auorized by Rule 29(a) and (b) of e Federal Rules of Appellate Procedure. III. SUMMARY OF ARGUMENT Amicus Curiae urges e reversal of e decision of e District Court for e District of Arizona. Plaintiff is a holder of rights-of-way granted pursuant to e Act of July 26, 1866 and, as a holder, is entitled to maintain at right-of-way 2

8 Case: /18/2012 ID: DktEntry: 21-2 Page: 8 of 22 wiout regulation by, or permission from, e federal Defendants. The Property Clause of e United States Constitution nor subsequent laws enacted by e United States of America do not supersede Plaintiff s rights-of-way across e Coronado National Forest and do not allow for blatant disregard of vested rights-of-way by e federal Defendants. The actions at Plaintiff seeks to take are consistent wi e maintenance of e status quo, which has been recognized by at least one oer circuit as being an activity over which e federal Defendants do not have regulatory auority. IV. ARGUMENT A. Rights of Way Established Pursuant to e Act of 1866 Are Not Superceded by e Property Clause, and Include e Right to Maintain ose Rights of Way At e trial court level, e district court denied e Plaintiff s requested injunctive relief, holding at e federal Defendants properly regulated e Plaintiff s attempted restoration of eir water pipeline from e Huachuca Mountains, and at, because e pa of e pipeline was rough federallyprotected wilderness, at e public interest and equities weighed in favor of e federal Defendants. However, e district court s holdings are in error, as e Plaintiff has vested rights of way across e Coronado National Forest pursuant to e Act of July 27, 1866 Act of 1866"), which allows e maintenance of ose 3

9 Case: /18/2012 ID: DktEntry: 21-2 Page: 9 of 22 rights of way wiout notification to, and regulation by, e federal Defendants. Rights-of-way such as ose claimed by e Plaintiff are not superseded by e Property Clause, nor by oer subsequent laws enacted by e United States. In fact, courts have held at holders of ese rights of way are entitled to maintain em wiout regulation by, or permission from, e federal government. Under e Act of 1866, Whenever, by priority of possession, rights to e use of water for mining, agricultural, manufacturing, or oer purposes, have vested and accrued, and e same are recognized and acknowledged by e local customs, laws, and e decisions of e courts, e possessors and owners of such vested rights shall be maintained and protected in e same; and e right of way for e construction of ditches and canals for e purposes herein specified is acknowledged and confirmed. See 43 U.S.C.A Accordingly, for a right of way to vest under e Act of 1866, e prospective grantee must possess valid water rights under e state law, and e water facilities must have been constructed on unoccupied and unreserved lands. See Bear Lake & River Waterworks & Irrigation Co. v. Garland, 164 U.S. 1, 12 (1896). In e present case, Plaintiff has alleged at bo of ese requirements were met: at it has valid water rights pursuant to state law and at e water facilities were constructed on unoccupied and unreserved lands. 4

10 Case: /18/2012 ID: DktEntry: 21-2 Page: 10 of 22 Similarly, e Act of March 3, 1891, 26 Stat. 1095, codified in pertinent part at 43 U.S.C. 946 (repealed Oct. 21, 1976) ( e 1891 Act ), provided for a vested federal right-of-way for irrigation upon approval of a map by e Secretary of e Interior. See Utah Power & Light Co. v. United States, 243 U.S. 389, , 37 S.Ct. 387, 61 L.Ed. 791 (1917). Like e Act of 1866 rights-of-way, rights vested under e 1891 Act are perpetual unless e use changes. See Kern River Co. v. United States, 257 U.S. 147, , 42 S.Ct. 60, 66 L.Ed. 175 (1921) ( The approval, once given, could not be recalled [unless by] a suit in equity in e event e grantee ceased to use or retain e land for e purpose indicated in e act. ) (citations omitted). The 1891 Act also auorized e President to reserve forest lands from e public domain. See 1891 Act, ch. 561, 24, 26 Stat. 1103, repealed by FLPMA, title VII, 704(a), 90 Stat On February 22, 1897, pursuant to is auorization in e 1891 Act, President Cleveland issued proclamations placing approximately 20,000,000 acres of public lands into forest reserves. See United States v. Jenks, 22 F.3d 1531, 1515 (10 Cir. 1994) [hereinafter Jenks I ]. These Presidential proclamations prevented additional settlement on reserved lands and raised concerns regarding access for existing property holders. Following e issuance of e Presidential proclamations, Congress sought to protect e access 5

11 Case: /18/2012 ID: DktEntry: 21-2 Page: 11 of 22 rights of homesteaders and oers holding property interests surrounded by e newly created forest reserves by enacting e Forest Service Organic Administration Act, ch. 2, 30 Stat. 34 (1897) (codified at 16 U.S.C.A ) [hereinafter Organic Act ]. Section 478 of e Organic Act protect [ed] whatever rights and licenses wi regard to e public domain existed prior to e reservation. See Montana Wilderness Ass n v. United States, 496 F.Supp. 880, 888 (D. Mont. 1980) (construing 16 U.S.C.A. 478), aff d on oer grounds, 655 F.2d 951 (9 Cir. 1981). In 1976, Congress changed e statutory regime regarding rights-of-way by enacting e Federal Land Policy Management Act (FLPMA), 43 U.S.C (1976). Effective October 21, 1976, e FLPMA replaced a tangled array of laws granting rights-of-way across federal lands, wi a single meod for establishing a right-of-way over public lands. See United States v. Jenks, 22 F.3d 1513, 1515(10 Cir.1994). Most important for present purposes, however, Congress specifically chose to preserve vested rights such as ose under e 1866 and 1891 Acts. Section 509(a) of e FLPMA provides: Noing in is subchapter shall have e effect of terminating any right-of-way or right-of-use hereto-fore issued, granted, or permitted. However, wi e consent of e holder ereof, e Secretary concerned may cancel such right-of-way or right-of-use and in its stead issue a right-of-way pursuant to e provisions of is subchapter. 6

12 Case: /18/2012 ID: DktEntry: 21-2 Page: 12 of 22 See 43 U.S.C. 1769(a); see also 43 U.S.C historical note (a) ( [Section 701 of e FLPMA] provided at Noing in is Act..., or in any amendment made by is Act, shall be construed as terminating any valid lease, permit, patent, rightof-way, or oer land use right or auorization existing on e date of approval of is Act... ) and (h)( All actions by e Secretary concerned under is Act shall be subject to valid existing rights. ). Therefore, all rights previously held under e 1866 and 1891 Acts survived e passage of FLPMA. Rights held under e 1866 Act are extremely important for e continuation and recognition of water rights in e western United States. These water rights are relied upon by many local, county, and state governments, as well as individuals roughout e West. However, e district court held at e Property Clause of e United States Constitution was controlling of e outcome of e issues present in is litigation, and at e Defendants had engaged in appropriate regulation relating to federal land by denying Plaintiff access to its rights-of-way, water rights, and water structures located in e Coronado National Forest. This precedent could be devastating to oer governmental entities which hold, and rely upon, similar types of rights-of-way. Under e Property Clause of e United States Constitution, 7

13 Case: /18/2012 ID: DktEntry: 21-2 Page: 13 of 22 The Congress shall have power to dispose of and make all needful rules and regulations respecting e territory or oer property belonging to e United States, and noing in is Constitutional shall be so construed as to prejudice any claims of e United States, or of any particular State. See U.S. CONST. Art. IV 3, cl. 2. The Supreme Court has held at securing water rights and rights of way requires no federal approval because e Act of 1866 automatically protects ose rights recognized under local custom or law. See Utah Power & Light Co. v. United States, 243 U.S. 389, 405 (1917). Furer, in Jennison v. Kirk, 98 U.S. 453, (1878) e Supreme Court recognized at e general purpose of e 1866 Act was to give e sanction of e government to vested water rights acquired by owners and possessors of ose rights at were recognized by local custom, laws, and decisions of e courts. See 98 U.S. 453, (1878). The rights-of-way incident to such water rights were recognized in e same manner as e vested water rights, i.e. by local customs, laws and decisions of e courts. See id. This has long been recognized by courts in Arizona. See Bristor v. Cheaam, 255 P.2d 173, 241 (Ariz. 1953); see also Clough v. Wing, 17 P. 453, 455 (Ariz. 1888); Boquillas Land & Cattle Co. v. Curtis, 89 P. 504 (Ariz. 1907). The Nin Circuit has also recognized at e 1866 Act protected water rights and rights-of-way for diversion of e water in accordance wi local and customary law and usage. See Hunter v. United States, 388 F.2d 148 (9 Cir.1967) (a case arising 8

14 Case: /18/2012 ID: DktEntry: 21-2 Page: 14 of 22 in California); see also Western Watersheds Project v. Matejko, 456 F.3d 922 (9 Cir.2006) (a case arising in Idaho). The question regarding to what extent e USFS may impose regulation upon access to and maintenance of an easement granted pursuant to e 1866 Act, insofar as access and maintenance occur on federal lands, is clear. Looking at similar rights-of-way granted pursuant to e 1866 Act, courts have determined at e scope of such a right of way is limited by e established usage of e route as of e date of repeal of e statute (i.e. as of October 21, 1976 wi e passage of FLPMA). See Souern Utah Wilderness Alliance v. Bureau of Land Management, 425 F.3d 735, (10 Cir. 2005). That did not mean, however, at e right- of-way had to be maintained in precisely e same condition it was in on October 21, 1976; raer, it could be improved as necessary to meet e exigencies of increased travel, so long as is was done in e light of traditional uses to which e right-of-way was put as of repeal of e statute in See id. Alough courts have held at changes in rights-of-way across federal lands are subject to regulation by e relevant federal land management agencies, see id., ose same courts have also recognized at routine maintenance of at right-ofway does not require consultation wi e agency. Id. The Ten Circuit has addressed in dep what constitutes routine maintenance, which does not require 9

15 Case: /18/2012 ID: DktEntry: 21-2 Page: 15 of 22 consultation wi e federal land management agency, and construction of improvements, which would require such consultation. See id. at 749. There, e Court held at: Defined in terms of e nature of e work, construction.... includes e widening of e road, e horizontal or vertical realignment of e road, e installation (as distinguished from cleaning, repair, or replacement in kind) of bridges, culverts and oer drainage structures, as well as any significant change in e surface composition of e road (e.g., going from dirt to gravel, from gravel to chipseal, from chipseal to asphalt, etc.), or any improvement, betterment, or any oer change in e nature of e road at may significantly impact [federal] lands, resources, or values. Maintenance preserves e existing road, including e physical upkeep or repair of wear or damage wheer from natural or oer causes, maintaining e shape of e road, grading it, making sure at e shape of e road permits drainage [, and] keeping drainage features open and operable essentially preserving e status quo. See id., citing United States v. Garfield County, 122 F. Supp. 2d 1201 (D. Utah ) (footnote omitted). The Ten Circuit determined at, under at definition, grading or blading a road for e first time would constitute construction and would require advance consultation, ough grading or blading a road to preserve e character of e road in accordance wi prior practice would not. See id. 1 Alough is definition was drawn as an interpretation of 36 C.F.R. 5.7, which applies wiin national parks, e Ten Circuit determined at is definition was applicable to distinguishing between routine maintenance and actual improvements of [rights of way pursuant to e Act of 1866] across federal lands more generally. See Souern Utah Wilderness Alliance, 425 F.3d at

16 Case: /18/2012 ID: DktEntry: 21-2 Page: 16 of 22 Importantly, is definition of maintenance fits e situation at issue in e present case. As noted by e Ten Circuit, maintenance preserves e existing [right-ofway], including e physical upkeep or repair of wear or damage wheer from natural or oer cases. See id. In e present case, Plaintiff seeks to maintain its right-of-way to repair damage which occurred as a result of natural causes. Importantly, in Souern Utah Wilderness Alliance, e Ten Circuit determined at drawing e line between maintenance and construction based on preserving e status quo promoted e congressional policy of freezing rights of way as of e uses established as of October 21, See id. at 749. There, e court held at such a definition protects existing uses wiout interfering unduly wi federal land management and protection. As long as e Counties act wiin e existing scope of eir rights of way, performing maintenance and repair at preserves e existing state of e [right-of-way], ey have no legal obligation to 2 consult wi e [federal land management agency].... Id. Performing 2 A temporary taking simply occurs when what would oerwise be a permanent taking is temporarily cut short, and e essential element of a temporary taking is a finite start and end to e taking. See American Pelagic Fishing Co., L.P. v. U.S., 379 F.3d 1363, 1372 (App. 2004). Water rights are real property interests under Arizona law. See Strawberry Water Co. v. Paulsen, 220 Ariz. 401, 406 (App. 2008). If e USFS continues to regulate e rights of way and water rights of e City of Tombstone to e extent at e City s rights are no longer viable, it is like at e USFS will have effectuated a temporary taking under e 5 Amendment to e Constitution. 11

17 Case: /18/2012 ID: DktEntry: 21-2 Page: 17 of 22 maintenance to preserve e existing right-of-way maintaining e status quo is exactly e situation in e case before is Court. Plaintiff has requested injunctive relief to allow it to repair its existing right-of-way, to allow e provision of water to e City of Tombstone, maintaining e status quo. In e present case, Plaintiff alleges at e Huachuca Water Company secured water rights and rights of way rough prior appropriation in e Miller and Carr Canyons before Arizona received statehood and at ose rights were subsequently recognized under e Act of In 1881 e Huachuca Water Company began supplying e City of Tombstone wi water from its water rights wiin e Miller and Carr Canyons. Huachuca Water Company s valid transfer of its rights to e City of Tombstone by quitclaim deed did not terminate or alter e rights and rights of way established by e company before Arizona s statehood and recognized by e Act of See A.R.S These water rights were secured prior to e 1906 reservation of e Huachuca Forest Reserve, now e Coronado National Forest. Plaintiff alleges at ese water rights, and rights-ofway, have been acknowledged by e United States Department of Interior and e Supreme Court of Arizona. Noing in e Property Clause allows for blatant disregard of perfected rights-of-way across federal land recognized under e Act of The USFS has 12

18 Case: /18/2012 ID: DktEntry: 21-2 Page: 18 of 22 blatantly disregarded clearly established rights-of-way by not allowing e Plaintiff access to ose rights-of-way in order maintain its pipeline and to supply its citizens wi water. The refusal by e USFS to allow any use of mechanized equipment, including a wheel barrel, on e rights-of-way substantially impairs e Plaintiff s ability to maintain at right of way. IV. CONCLUSION Plaintiff, as a holder of rights-of-way granted pursuant to e Act of 1866, is entitled to maintain at right-of-way wiout regulation by, or permission from, e federal Defendants. The actions at Plaintiff seeks to take are consistent wi e maintenance of e status quo, which has been recognized by at least one oer circuit as being an activity over which e federal Defendants do not have regulatory auority. Accordingly, e Coalition of Counties respectfully requests at is Court reverse e judgment of e district court. // // // // // 13

19 Case: /18/2012 ID: DktEntry: 21-2 Page: 19 of 22 RESPECTFULLY SUBMITTED is 18 day of June, /s/karen Budd-Falen Karen Budd-Falen BUDD-FALEN LAW OFFICES, LLC 300 East 18 Street Post Office Box 346 Cheyenne, WY / Telephone 307/ Telefax Attorney for Amicus Curiae Coalition of Counties 14

20 Case: /18/2012 ID: DktEntry: 21-2 Page: 20 of 22 Section 1. Word count CERTIFICATE OF COMPLIANCE As required by Fed. R. App. P. 32(a)(7)(C), I certify at is brief is proportionally spaced and contains 3,087 words. I relied on my word processor to obtain e count and it is Corel Word Perfect X3. I counted five characters per word, counting all characters including citations and numerals. Section 2. Line count My brief was prepared in a monospaced typeface and contains 262 lines of text. I certify at e information on is form is true and correct to e best of my knowledge and belief formed after a reasonable inquiry. /s/karen Budd-Falen Karen Budd-Falen BUDD-FALEN LAW OFFICES, LLC 300 East 18 Street Post Office Box 346 Cheyenne, WY / Telephone 307/ Telefax karen@buddfalen.com Attorney for Amicus Curiae Coalition of Counties 15

21 Case: /18/2012 ID: DktEntry: 21-2 Page: 21 of 22 CERTIFICATE OF SERVICE I hereby certify at I electronically filed e foregoing wi e Clerk of e Court for e United States Court of Appeals for e Nin Circuit by using e appellate CM/ECF system on e 18 day of June, I certify at all participants in e case are registered CM/ECF users and at service will be accomplished by e appellate CM/ECF system to e following: Nicholas Constantine Dranias Christina Sandefur Scharf-Norton Center for Constitutional Litigation Goldwater Intstitute 500 E. Coronado Rd. Phoenix, AZ ndranias@goldwaterinstitute.org csandefur@goldwaterinstitute.org David C. Shilton Appellate Section, Environment & Natural Resources Division, U.S. Dept. of Justice, P.O. Box 7415 Washington, D.C Phone: (202) David.Shilton@usdoj.gov Mark R. Haag (Via U.S. Mail only) U.S. Department of Justice Environment & Natural Resources Division Post Office Box 7415 Washington, D.C /s/ Karen Budd-Falen Karen Budd-Falen 16

22 Case: /18/2012 ID: DktEntry: 21-2 Page: 22 of 22 CERTIFICATE OF DIGITAL SUBMISSION All required privacy redactions, if any, have been made and, wi e exception of ose redactions, every document submitted in Digital Form is an exact copy of e written document filed wi e Clerk. The digital submissions have been scanned for viruses wi e most recent version of a commercial virus scanning program SYMANTEC ANTI-VIRUS, Virus Definition File Version: 2/13/2009 rev.3, Program versions: , Scan Engine and, according to e program are free of viruses. I certify at e information on is form is true and correct to e best of my knowledge and belief formed after a reasonably inquiry. /s/karen Budd-Falen Karen Budd-Falen BUDD-FALEN LAW OFFICES, LLC 300 East 18 Street Post Office Box 346 Cheyenne, WY / Telephone 307/ Telefax karen@buddfalen.com Attorney for Amicus Curiae Coalition of Counties 17