Circuit Blocks Bulldozers in National Forest

(CN) - The 9th Circuit denied the city of Tombstone, Ariz., a preliminary injunction against the U.S. Forest Service, which refuses to allow bulldozers access to a federal wilderness area to repair springs damaged by mudslides.

In December 2011, the Tombstone, an old frontier town east of Tucson, sought a preliminary injunction that would allow the city to take bulldozers into a federal wilderness area to repair 25 springs that were damaged in a wildfire and subsequent mudslides.

The loss of these springs allegedly caused a water shortage in the town, but a district judge found that the town's claims of a water emergency were "overstated and speculative."

On appeal, Tombstone argued that the U.S. Forest Service issued the city a special use permit in 1962, which "allows the city to have access to these wells and perhaps also to construct facilities, and pipes and so forth, to take the water."

It also claimed that maintaining the city's water supply is an essential governmental function and the federal government's interference with the city's duty to its citizens violates the 10th amendment.

In opposition, the Justice Department acknowledged that the special use permit "allows [Tombstone] to maintain the water system, but it doesn't say anything about motorized vehicles," and maintained that the city needs permission from the Forest Service to make the desired repairs.

The Forest Service granted the city permission to repair two of the springs, but the other 23 requests remain pending.

A three-judge panel of the 9th Circuit affirmed the district court's ruling, finding that "Tombstone failed to raise serious questions going to the merits of its Tenth Amendment challenge and we do not reach whether the City has satisfied the other requirements for a preliminary injunction. Assuming without deciding that the Tenth Amendment constrains the Forest Service's authority to regulate Tombstone's activities under the Property Clause, no unlawful commandeering has been shown."

The unpublished opinion continued: "It is the Supreme Court's prerogative alone to overrule its precedents. We therefore have no authority to apply the traditional or integral governmental functions test Tombstone has urged."

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