This brief addresses 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.
If the states have the power to regulate private uses of federal land to further “environmental” goals—as the Supreme 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.
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