No Water at the OK Corral

Gunfight at the OK Corral

Here’s an unpublished memo that slipped by last week.  The city of Tombstone, Arizona can’t send bulldozers into a federal wilderness area to repair springs damaged by mudslides.  The 9th U.S. Circuit Court of Appeals denied a preliminary injunction request by the city on Dec. 21.

Tombstone argued that it had rights to water springs on federal land dating back to a 19th century vested property rights and a 1962 special use permit.  But the extent of the 1962 rights are still being litigated.

The city filed suit in December 2011 seeking an injunction that would allow it to use motorized vehicles in the Huachuca Mountains to repair the springs, damaged by summer mudslides and to repair pipes.

U.S. District Judge Frank Zapata refused in May, holding that the claims of a water emergency were overstated.

On that record the panel concluded that Old West town failed to raise serious questions about potential violation of its Tenth Amendment rights.  The panel said it was not deciding whether the Tenth Amendment limits the Forest Service’s authority to regulate Tombstone’s repair activities.  The judges simply concluded that for the purpose of the injunction “no unlawful commandeering has been shown.”

Judges Diarmuid O’Scannlain, Sidney Thomas and Connie Callahan signed the order.

Case:  City of Tombstone v. USA, No. 12-16172



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