Chopper incident has rancher in hot water - He fires his shotgun at a firefighting helicopter's bucket after the USFS 'didn't pay' him for past use.

The Arizona Republic

MICHAEL CHOW/The Arizona Republic


Kane County, Arizona - Arizona-rancher Fred Conway says the feds owe him for "taking" water from his pond to douse a forest fire last year.

Fred Conway was taking a nap at his ranch high above Punkin Center in late June when he heard the helicopter. He grabbed his shotgun and drove a four-wheeler across his pastures to the stock pond.
He'd been feuding with the U.S. Forest Service over water it had dipped the year before to fight fires in the area. Because the agency never paid for that water, Conway told it not to come back.

Yet, here was a Bell 212 toting a 240-gallon rubber bucket from a 100-foot-long cable, making a beeline for his pond. Conway tried to wave away the pilot, but he dropped the bucket nonetheless. Conway fired at the bucket.

Those shots could earn him a year in jail and cost him up to $7,000 in restitution. Conway was charged with one count of "interfering with the performance of federal officials or contractors." His lawyer is trying to resolve the case out of court.

"It has a lot to do with water rights," Conway said.

Neither the Forest Service nor the U.S. Attorney's Office would comment about Conway's case, but Don Van Driel, group leader for fire and engineering for Tonto National Forest, says the situation is unusual.

Generally, he says, Forest Service district rangers try to assess availability of private water before the fire season begins.

"We have no one policy," Van Driel said, meaning there is no formal protocol. "We try really hard not to use somebody's water without their approval."

Here in the West, water is a precious commodity, especially in a drought year. Historically, private property rights have been held with near religious conviction and defended with force if necessary.

"Water like that, when you're in a remote area not known for having a lot of water, is worth quite a bit of money," said Charles Havranek, a water rights appraiser and broker in Phoenix.

And because they are so scarce, such resources rarely are sold because they are needed to make ranching possible, Havranek said.

The question as to whether Conway has inviolable legal rights to that water, however, is not so clear.

"There's no black-and-white answer as to whether a taking has occurred, because questions regarding water rights and the value of water and takings cases in general are incredibly fact sensitive," said Pat Schiffer, chief legal counsel to the Arizona Department of Water Resources.

A "taking" refers to when the government takes private property.

Other attorneys are more certain.

"It's his water," says Michael McNulty, a water attorney in Tucson. "The government has no more right to take it than to take his dining room furniture."

It's clear to Conway, and he wants to be compensated.

"A year ago, they basically stole water because they didn't pay for it," he said. "And this time, they were damn sure stealing water because verbally I told them not to come back and take any more until I was paid for it."

Clarence Frederick Conway, 60, is a stout man. He's got a rancher's twang in his voice and a rancher's cowboy hat on the back of his head.

The Conway family has ranched in Greenback Valley since 1872. Fred Conway and three relatives own 560 acres of grasslands and oak forest at 4,000 feet, surrounded by Tonto National Forest. Conway and his wife live in the little block house his father built with his own hands for $5,000 in 1952.

July 4, 2002, crews were fighting two fires in the mountains surrounding Tonto Basin. A crew of firefighters on a pumper truck drove the 15 miles of dirt road up to Conway's door and asked if helicopters could dip from one of his two stock ponds. According to Conway, the firefighters told him that someone would be up that day with a contract. That never happened.

"So when they started dipping, I just figured they didn't have time," he said.

Conway documented the water draw. He took photographs of the three helicopters that made 44 visits to his pond between 11:40 a.m. and 6 p.m. He set the value of the water taken at $2,000 to $3,000, estimating the size of the bucket and charging 25 cents a gallon.

Conway's pond is fed by a natural spring that produces 80 gallons of water an hour.

"That spring never varies no matter how dry or how wet it is," Conway says. "It stays 61 degrees year-round, and the flow never changes on it."

The water is so pure that a commercial water company considered bottling it. Conway uses it for drinking water, for watering cattle and for irrigating his pastures.

October 2002, three months after the fires, he received a letter from the Tonto Basin District Ranger, acknowledging the water draft and asking for more information. Then in December, another Forest Service officer sent a letter asking for photographs of the dipping helicopters, which Conway sent. By March, when he still hadn't been paid, Conway sent a bill to the Forest Service, itemizing the number of visits from each helicopter but not setting a price because he still didn't know the capacity of the buckets.

In frustration, he says he called Tonto National Forest headquarters in Phoenix and told a clerk the agency wasn't allowed to take any more water until he was paid.

The Picture fire ignited June 17 and burned 12,500 acres of national forest land about four miles northeast of Conway's ranch. The fire did not threaten any structures, which would have changed things in Conway's mind.

"If that's what was necessary to save somebody's house or save somebody's life, I wouldn't mind that," he said.

According to fire officials, the fire was contained June 26. Four days later, on June 30, Matt Conant, a Canadian firefighting helicopter pilot who works for a company that contracts with the Forest Service, was doing mop-up operations.

Reacting to a flare-up that he thought could become a larger fire, Conant headed toward the Conway pond, which he saw from the air.

"I was new to that fire, and the other water source we had been using was way on the other side of the fire," he said. "Conway's spot there was a lot closer for just the couple of buckets that I needed to get this fresh start contained."

According to the affidavit filed by Forest Service law enforcement officers, the pilot heard shots fired on both of his visits to the pond.

Conant told The Arizona Republic that he only heard the second volley, and then noticed Conway on the ground.

"I saw him after the second shot, yeah," Conant said. "I wasn't going back there to talk to him."

Conway was certain the pilot saw him earlier.

"He's coming directly toward you with his head hanging out the side of the chopper, and you're waving a shotgun in the air," Conway said. "Now, there's something wrong with this story.

"He actually raised his head up and looked at me. Ain't no doubt in my mind he didn't see me. His story, he can tell it any way he wants to, I guess. That's mine."

Conant told The Republic he never felt in danger, because the "Bambi bucket," as firefighters call it, was suspended from a 100-foot-long cable beneath the helicopter.

"It wouldn't have been so clear if the bucket hadn't been on a long line," Conant said.

The rubber bucket did not fare well.

"There's a thousand holes in it," Conant said. Forest Service documents placed the damage at $5,000 to $7,000.

"Personally, I kind of feel for the old guy. I'm not the guy trying to throw him in jail," Conant said. "But he still shouldn't be shooting at aircraft."


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