PHOENIX - A second justice of the U.S. Supreme Court has refused to intercede in Tombstone's fight over its water supply with the Forest Service.
Justice Clarence Thomas gave no reason for his refusal Tuesday to consider a request by Nick Dranias, who is representing the city, to give the go-ahead to make immediate repairs to its water supply in the Huachuca Mountains. Dranias previously had been turned away by Justice Anthony Kennedy.
Dranias said his next step is to try to persuade the 9th U.S. Circuit Court of Appeals to grant the special order he could not get last month from a trial judge. But he conceded that could take up to seven months.
"In the meantime, Tombstone is going to be at risk of burning down, losing its water, drinking arsenic-poisoned well water," he said. "Apparently, that's an acceptable risk to our court system."
There may be some interim relief: Tombstone has applied for a permit on behalf of a volunteer group that wants to make repairs to the pipes and the springs that feed them using only hand tools. That would get around the objections by the Forest Service to having heavy equipment in the wilderness area.
But Dranias, who said the city submitted the request without checking with him, said that course is fraught with risks.
"The Forest Service is just setting them up," he said. Dranias said if any of the volunteers does something outside the scope of the permit, then the federal government will have a new excuse to deny the city's request for access with the equipment that eventually will be needed.
"My belief is the Forest Service is essentially trying to entrap the city into taking some sort of hit for the conduct of this independent group," he said.
Tombstone City Manager George Barnes acknowledged that is a possibility. But he said city officials felt they really had no choice.
He said the Forest Service said the permit could be issued only in the name of the city - and not the volunteer group - because they will be working on city pipes. "The other people don't have standing," Barnes said.
"It's a real tightrope walk," Barnes said of trying to balance the water needs against maintaining the city's position on the equipment permit. He said the city has to try to comply with the regulations and restrictions the Forest Service has placed on work in the wilderness area, at least until a court rules otherwise.
Barnes said there will be "some supervision" from city employees if the volunteer group gets the permission to do some manual work.
"Otherwise, how will they know what to do?" he explained. But he said he has no illusion that this "shovel brigade" is going to be much more than a symbolic move designed to keep the issue in public focus.
The city's Huachuca Mountains water supply was destroyed by mudslides after last year's Monument Fire.
The Forest Service would not comment on the ongoing dispute.
Even if the agency allows the manual work, that still leaves unresolved the issue of whether Tombstone is entitled to the water, which it has been using since territorial days. In legal papers filed in federal court, attorneys for the U.S. Department of Justice have questioned the city's claims.
On StarNet: Read about the old days in Tombstone in Shootout at the OK Corral, a Tales from the Morgue eBook. Find a link at azstarnet.com/ebooks