Tombstone striking out in courts in water fight

PHOENIX – Tombstone calls itself “the town too tough to die” thanks to
an Old West history that includes the shootout at the OK Corral, but the tiny
southeastern Arizona city says the health and safety of its modern-day residents
are imperiled by unreasonable U.S. Forest Service officials.

At issue is whether the city is entitled to use heavy equipment to complete
repairs on a runoff-damaged pipeline system that for 130 years has hauled water
to Tombstone from mountain springs that are now part of a forest wilderness
area.

So far, federal judges aren’t buying the city’s claims.

In the wake of two lower courts’ rulings against Tombstone, a U.S. Supreme
Court justice on Friday provided the latest rebuff by denying a request for an
emergency injunction.

The request asked for an order allowing the city to use vehicles and excavators
to repair and bury piping, locate buried springs and build dams and earthen
mounds to divert runoff and redirect flash floods.

The work would take place in side canyons of the Huachuca Mountains near Sierra
Vista, a larger city about 20 miles southwest of Tombstone.

A massive wildfire a year ago burned off vegetation, resulting in mudslides
that buried and damaged the water system during last summer’s rainy season.

The affected areas are in designated wilderness in the Coronado National
Forest, and Forest Service officials required the city to obtain permits for the
construction work.

Some work was permitted and performed, allowing delivery of piped water to
resume and augment the city’s limited supply of potable well water.

However, officials in the city of 1,380 say more work needs to be done to
prevent new damage from runoff and flooding during this year’s summer rains.

“All the city wants to do is go in there and make repairs and get back to
normal,” Mayor Stephen Schmidt said Friday. “I don’t think it’s right that we
should be held up by red tape by the Forest Service.”

Coronado National Forest spokeswoman Heidi Schewel said officials could not
comment because of a policy on pending litigation. But she released copies of
several news releases from last fall that announced the service’s approval of
the initial repair work.

In the request to the Supreme Court, Tombstone’s lawyers argued that the
federal government is trampling on states’ rights by essentially
“commandeering” Tombstone’s water system by not allowing it to be adequately
repaired.

State sovereignty would be meaningless “if federal officials could claim
unlimited regulatory authority over federal lands to prevent state and local
governments from quickly responding to natural disasters to protect public
health and safety,” said the lawyers from the Goldwater Institute, a
conservative advocacy group based in Phoenix.

By invoking wilderness considerations to block the city’s planned work in the
fire-scorched area, government officials “are seeking to elevate the
preservation of a moonscape over Tombstone’s paramount public health and safety
interest,” the Goldwater Institute lawyers wrote.

But the federal government’s lawyers argued that Tombstone wouldn’t specify
exactly what work it wants to do where in the wilderness area, and a federal
judge agreed with government lawyers that Tombstone appeared to be expanding _
not just repairing _ the system by tapping additional springs.

“Likewise, the court also finds that (Tombstone) cutting a path through a
federally protected wilderness area with excavators and other construction
equipment would have a significant impact,” U.S. District Judge Frank Zapata
wrote in a May 14 order.

Tombstone’s claims that it needs to do the work to improve and increase its
water supplies, partly because of firefighting concerns, are “overstated and
speculative,” Zapata said.