PHOENIX - A federal appeals court on Monday rebuffed a bid by Tombstone to make immediate repairs to its Huachuca Mountain water supply, which was damaged in the wake of last year's Monument Fire.
In an unsigned opinion, a three-judge panel of the 9th U.S. Circuit Court of Appeals said it would not block officials from the U.S. Forest Service from interfering with efforts by the city to bring heavy equipment into the mountains. The judges said they were not buying the argument that the actions by the Forest Service interfere with the 10th Amendment rights of the sovereignty of the state.
They also said the city had not proved it was entitled to an injunction allowing it to make what it said are emergency repairs.
Potentially more significant, the judges said the city's contention that it is legally entitled to take water from the mountains is far from a settled issue. They pointed out rights to the water remain a question before U.S. District Judge Frank Zapata in Tucson.
Tombstone Mayor Stephen Schmidt said late Monday that he was not aware of the ruling. He said what happens next will have to be decided in a meeting set for next month with attorneys from the Goldwater Institute, who pushed for the injunction.
Schmidt said that for the time being, the city's water supply remains adequate, even with the inability to make the repairs.
He said flow is about 100 to 125 gallons per minute. While that is far short of the more than 350 gallons per minute Tombstone used to get, the demand is down because it is winter and people are not using their evaporative coolers.
And Schmidt said the city has been patching water lines to minimize leaks.
"Basically, right now we're just about even," he said.
The Monument Fire burned much of the Huachuca Mountains, where the springs that feed Tombstone's water supply are located. The real damage came later, according to the city, when record rains caused massive mud and rock slides.
"With no vegetation to absorb the runoff, huge mud slides forced boulders - some the size of Volkswagens - to tumble down mountainsides, crushing Tombstone's waterlines and destroying reservoirs," shutting off the city's main source of water, Goldwater attorney Nick Dranias wrote to the court.
Gov. Jan Brewer declared a state of emergency to provide funds for the repairs. And the city then rented the necessary earth-moving equipment and vehicles.
The city sued after the Forest Service balked at providing the necessary permits for heavy-equipment work, with the federal agency even questioning the city's rights to the water. With that case making its way slowly through the trial court, the city is seeking permission to start the work.
But the appellate judges found Monday that there was no legal basis for such a court order.
The question of who owns the water, which the 9th Circuit says remains unresolved, could prove crucial to the ultimate outcome of not just the repairs but the future of the city's water supply.
When the village was established in 1879, it was given authority, through the Huachuca Water Co., to find a water supply. Village officials ultimately found multiple springs on public lands in the Huachuca Mountains across the San Pedro Valley.
The city now owns the water company.
City officials contend that once Tombstone started using the water, the city is entitled, under the laws in effect at that time, to keep using it, which they contend assures them the right to access the land where the water is located to make repairs.
But attorneys for the Forest Service have argued that the only way the city could get "vested rights" to water on federal lands would be with congressional authority. They also said Congress gave the secretary of agriculture the power to determine who gets to use national forests.