Federal Court Judge Denies Injunction Against Forest Service
Samantha Nicholas * Fri, May 18, 2012
According to City Clerk George Barnes, on Monday May 14th,
Federal Judge Frank Zapata ruled not to grant a preliminary
injunction for the City of Tombstone in the lawsuit against
Forest Service. The City of Tombstone through the Goldwater
Institute immediately appealed the decision. “We completely
expected it,” said Barnes.
Barnes went on to say that the next action by the City of
Tombstone is a whole series of actions. “We will be getting
transcripts from the whole thing, the next time we will be
in court will likely be sometime in July.”
According to a press release issued by Goldwater Institute,
they have already filed an emergency appeal of the decision.
“Requiring Tombstone to seek federal permits to repair its
municipal water supply is like demanding a federal permit
before the City can make repairs to a fire truck,” said Nick
Dranias, Goldwater Institute director of constitutional
studies and lead attorney in the case. “Under the Tenth
Amendment, the federal government has no power during a
state of emergency to stop a local government from repairing
its own municipal property, which is essential to providing
safe drinking water and adequate fire protection.”
The Goldwater Institute is representing the City of
Tombstone in this clash with the federal government.
Tombstone has property rights to 25 mountain spring heads
and all of the water rising and flowing in two canyons in
the Huachuca Mountains. Bundled with those rights are access
roads and pipeline rights of way. Until last year, the U.S.
Forest Service recognized and respected those rights, which
date back to the days of Wyatt Earp. Today, the federal
government denies they exist and refuses to allow Tombstone
to restore more than three of its spring water catchments.
In the summer of 2011, the springs that supply Tombstone’s
water were destroyed by the Monument Fire. After the fire,
monsoons came, destroying even more with landslides of mud
With the support of our state legislators, Governor Brewer
declared a State of Emergency for the City because of the
damage on August 17, 2011. She also authorized $50,000 from
the state emergency fund to help pay for temporary emergency
repairs. The State Department of Emergency Management
directed the city to start at once to complete emergency
The city set to work on three major objectives: 1. Locating
the springs and related infrastructure. Most of the
landmarks were gone. Most springs were mudded over. Using
some of the earliest maps and engineering studies from past
decades, the City was able to obtain GPS locations for most
of the infrastructure. During the process, they discovered
illegal taps into the water lines and reservoirs.
2. Obtaining an engineering assessment of what needed to be
done both short and longer term.
3. Rebuilding the chain of custody of water appropriation
and land and right of way ownership for the individual
springs and its conveyance ultimately to the City of
Tombstone over the years.
At that time, city officials began communicating with the
Forest Service to prepare any authorizations required to
work in wilderness areas.
It became obvious that Forest Service was intent on proving
that the City did not own its rights or way of lands
included in the water appropriations.
In November 2011, Barnes told The Tombstone News that after
waiting as long as possible the city moved equipment up the
mountain. In the process the Forest Service promised to
expedite the permit process and asked us to park our
equipment temporarily. During that time one machine was
vandalized by damaging hydraulic fittings which could have
caused injury or worse. A police report for criminal damage
was filed. Later, we were asked to move the equipment which
we did to attempt to work out the permitting. We complied as
Also in November 2011, the City crew led by former Mayor
Jack Henderson moved up the mountain into Miller Canyon.
There they were confronted by Forest Service Police and
others who threatened city forces with felony citations.
Ultimately after a few hours of “discussion” a meeting was
called at Forest Service Office in Hereford.
As a result, the City of Tombstone went for a motion for
preliminary Injunction to allow the City to do the work to
make emergency repairs. After two days of testimony, the
judge formulated his decision which took about a month. His
decision was that the case was too broad and he wanted it
After the first series of hearings, Judge Frank Zapata
ordered both parties to submit to mediation. “We showed up
and so did Forest Service. It went back and forth all day.
Forest Service then decided that they didn’t have any
authority to make decisions, but they could live with the
Judge ordering them to let us do the work. With that, we got
everyone in the mindset to do this. The judge pulled all of
the attorneys together to formulate that order and Forest
Service then pulled out,” said Barnes.
On Thursday May 17th 2012, Republican Congressman Jeff
Flake, who represents Arizona’s Sixth District introduced
H.R. 5791, the Emergency Water Supply Restoration Act which
would ensure that state and local authorities are able to
promptly make reasonable and necessary repairs to restore
water supplies and infrastructure during a declared state of
“In the wake of a natural disaster, these kinds of
restrictions not only don’t pass the laugh test, they
imperil those most affected by the disaster. State and local
authorities ought to be free from federal obstructions when
working to quickly restore water to taxpaying citizens
during a state of emergency. This bill ensures that the
federal government won’t come between a disaster-stricken
town and its water,” said Flake.
“Cities like Tombstone shouldn’t be drowned in red tape for
trying to make necessary repairs to their critical water
sources. If it’s a showdown with a federal agency they want,
well, then I’m your huckleberry.”
In April, Congressman Flake wrote a letter on behalf of the
city of Tombstone to the Chief of the U.S. Forest Service
Tom Tidwell encouraging cooperation between the Forest
Service and Tombstone to expeditiously and in a
cost-effective manner complete the aqueduct’s repairs.