Tombstone's Water Crisis Claims Rejected by Court
TUCSON, Ariz. (CN) - A federal judge rejected a conservative group's claim that the historic town of Tombstone faces a water crises because the U.S. Forest Service refuses to allow crews access to a wilderness area to repair springs damaged by wildfire and mudslides.
U.S. District Judge Frank Zapata this week denied the Phoenix-based Goldwater Institute's motion for a preliminary injunction. The group, which is representing the City of Tombstone against the Forest Service, immediately filed an appeal with the 9th Circuit.
Zapata found that the group's "claims of a drastic water emergency related to public consumption and fire needs are overstated and speculative."
Tombstone, a small tourist community about an hour east of Tucson that trades on its romantic Wild West history, claimed in a federal lawsuit filed in December that the agency had refused to grant unfettered access to a wilderness area in the nearby Huachuca Mountains. A wildfire and subsequent mudslides last summer damaged several springs that the town says it has used since the 1880s. Tombstone claims that it doesn't need the agency's permission to repair the damage and argues that delays are causing a water shortage in the town.
Judge Zapata disagreed in a ruling signed Monday, finding that the alleged crisis has been overstated and that the Forest Service has "continually worked with plaintiff to attempt to resolve their water issues." Zapata said that Tombstone had failed to provide the agency with information it needs to grant the required permits.
"Defendants have attempted to accommodate plaintiff's requests to repair water structures, have consistently encouraged plaintiffs to submit site specific information with details as to the work that needs to be performed and the equipment needed such that defendants could properly assess any impacts in the wilderness, and defendants have been receptive to plaintiff's requests and have changed certain requirements after considering plaintiff's concerns," Zapata wrote.
Zapata added that "it appears that plaintiff's water from the Huachuca Mountains has been substantially restored, plaintiff currently has access to sufficient and safe water between its wells and the Huachuca water, and that plaintiff's claims of a drastic water emergency related to public consumption and fire needs are overstated and speculative."
The town is actually attempting to engage in new construction in the wilderness area rather than "simply restoring existing water facilities," according to the ruling.
"Upon review of the record, the court finds that plaintiff has not demonstrated irreparable harm," Zapata wrote. "Likewise, the court also finds that plaintiff cutting a path through a federally protected wilderness area with excavators and other construction equipment would have a significant impact; the public interest and equities weigh in favor of defendants who are attempting to conserve and protect important wilderness areas."
Goldwater Institute attorney Nicholas Dranias said in an interview that Zapata's ruling is "replete with errors of law." He said Zapata misinterpreted the group's sovereign immunity arguments and other legal issues, and that he is confident the 9th Circuit will reverse.
Dranias said that Tombstone has given the agency all the information it needs to allow access, and that the Forest Service is stalling because it wants to control access to the springs and the water that they provide.
"The bottom line here is that this is about power -- the power water gives you in an arid environment," he said. "The federal government wants that power."