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Friday, May 17, 2024 | Back issues
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Court May Drain Historic City’s Water Rights Case

(CN) - The historic Arizona city of Tombstone urged the 9th Circuit to let it repair the freshwater springs in a federal wilderness area that were allegedly damaged by wildfire and mudslides.

In December 2011, the Phoenix-based Goldwater Institute filed a federal lawsuit on behalf of Tombstone, seeking a preliminary injunction that would allow the city to use motorized vehicles to repair damaged springs and water pipelines in the nearby Huachuca Mountains.

Tombstone, a small tourist community lies about an hour east of Tucson, trades on its romantic Wild West history. It says a wildfire and subsequent mudslides in summer 2011 damaged 25 springs that it has used since the 1880s, causing a water shortage in the town.

U.S. District Judge Frank Zapata rejected the motion in May, ruling that Goldwater's "claims of a drastic water emergency related to public consumption and fire needs are overstated and speculative."

At a hearing in San Francisco, Goldwater attorney Nicholas Dranias told a three-judge panel of the 9th Circuit the district court "disregarded the clear, irreparable harm facing Tombstone," and failed to recognize the city's long-standing rights.

Judge Diarmuid O'Scannlain asked whether the city's claim stems from a special use permit that the U.S. Forest Service issued Tombstone 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."

Dranias agreed. Later, he told the court that, "in effect, the Forest Service has taken the position that we need to seek a permit to use the rights that we already have recognized under a special use permit."

Justice Department attorney David Shilton contended that the 1962 special use permit does not explicitly allow Tombstone to brings "bulldozers or dump trucks" into the national forest.

"The special use permit allows [Tombstone] to maintain the water system, but it doesn't say anything about motorized vehicles," Shilton said. "It does say that if they want to do reconstruction they have to get permission. Then you have the Wilderness Act, which comes along in 1984, and so after that if the city wants to use motorized vehicles, they have to go to the Forest Service for permission."

Tombstone recently sought permission from the Forest Service to access and repair two "main" springs in the forest, Shilton said. In both instances, the service granted permission and allowed the city to bring motorized vehicles into the forest within a few weeks.

Judge Conseulo Callahan confronted Dranias with this information.

"So that's the whole thing," Callahan told Dranias. "You were granted twice, and now your position is we don't need to seek a permit, and we aren't going to do what you want us to do because we have a right to do it without your permission. ... And they want you to jump through some other hoops, but you don't want to do it."

Dranias again agreed, but clarified that the government's "hoops" threaten the very existence of the historic city.

The Forest Service has "ignored" the city's application for access to the 23 other springs for more than a year, Dranias said.

Shilton countered that the "claims of emergency were overstated and speculative" by Tombstone in the first place.

"Every city would like to have more water capacity, but [Tombstone] certainly has enough now with the water flowing to handle its needs," Shilton said.

He said that the District Court properly found that "there was no irreparable harm because the city's water system into these mountains has been substantially restored, because the Forest Service allowed it to do work with motorized equipment where that was appropriate, where the city had appropriately applied and told the Forest Service what it wanted to do."

Dranias claimed that the federal government's resistance to Tombstone's plight represents a breach of the city's rights under the 10th Amendment.

There is Supreme Court precedent behind the fact that "maintaining a municipal water supply is an essential governmental function," thus creating an unconstitutional violation of the city's right to exist whenever there is a federal interference with a city's right to supply water to its citizens.

Shilton disagreed.

"As the District Court found, this is simply an instance of the federal government regulating on federal property," he said. "It really doesn't raise any issue of 10th Amendment because there is no commandeering of the state government. The Forest Service is doing here what it would do to any person who has some sort of special use permit on the Forest Service land."

At the close of oral arguments, O'Scannlain questioned whether or not the court had "much to talk about at this stage."

"It strikes me that if you filed on December 5, 2011, for the approval of what you plan to do here, and the Forest Service has never ruled on it," O'Scannlain said. "I'm not sure that there's much to talk about at this stage given that it's a preliminary injunction. You may have merits in the main case, but until the Forest Service has denied your access, what's there to talk about?"

Justices Callahan and O'Scannlain were joined on the panel by Judge Sidney Thomas.

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