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 and debris.
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 repairs.
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 a courtesy.
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 narrowed.
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 emergency.
“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.