The City of Tombstone is squaring off against the U.S. Forest Service over water rights in a fight to rescue “The Town Too Tough to Die.” Citing the Wilderness Act, the Forest Service is refusing to allow the city to repair its waterlines to mountain springs it has owned for nearly seventy years – and which date back to the 1880s. This refusal is threatening residents, private property and public safety with the risk of a total loss of fire protection and safe drinking water.
The Goldwater Institute is representing the City of Tombstone because the 10th Amendment protects states and their subdivisions from federal regulations that prevent them from using and enjoying their property in order to fulfill the essential functions of protecting public health and safety.
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Last step: 9th Circuit denied appeal for emergency repairs to water supply.
What happened to bring about this challenge?
In a show down between the federal government and the “Town Too Tough to Die,” the U.S. Forest Service is refusing to allow Tombstone to repair its mountain spring water lines after forest fires, floods and torrential mudslides destroyed them in the Monument Fire of 2011. Not content with allowing forest fires to burn down some of the most beautiful land in Arizona, the Forest Service is willing to risk the lives and properties of Tombstone residents and tourists due to the loss of adequate fire suppression capabilities and safe drinking water.
Between May and July 2011, the Monument Fire engulfed a large part of the eastern portion of the Huachuca Mountains. Record-breaking monsoon rains followed. With no vegetation to absorb the runoff, huge mudslides forced boulders to tumble down the mountain sides, crushing Tombstone’s mountain spring waterlines, destroying reservoirs and shutting off Tombstone’s main source of water. In some areas, Tombstone’s pipeline is under 12 feet of mud, rocks and other debris; while in other places, it is hanging in mid-air due to the ground being washed out from under it. In response, federal bureaucrats are refusing to allow Tombstone to unearth its springs and restore its waterlines unless they jump through a lengthy permitting process that will require the city to use horses and hand tools to remove boulders the size of Volkswagens.
Water is indispensable to Tombstone’s hardscrabble existence. The risk of fire to this historic town of wood buildings is real. By refusing to allow the city to freely repair its waterlines to ensure that it has enough water to provide fire protection and safe drinking water, the U.S. Forest Service is threatening to kill “The Town Too Tough to Die.”
What does Goldwater Institute want from this legal challenge?
The Goldwater Institute seeks to uphold the principle that the 10th Amendment protects states and their subdivisions from federal regulations that prevent them from using and enjoying their property in order to fulfill the essential functions of protecting public health and safety.
The 10th Amendment protects states and their subdivisions from federal regulations that impede their ability to fulfill essential health and safety functions.
Just as the federal government cannot regulate the States, it cannot regulate political subdivisions of the States, like the City of Tombstone. And despite what power it may claim, the Forest Service certainly has no power to regulate Tombstone to death.
Reply in Support of Tenth Amendment Issues (2/20/2012)
Motion for Preliminary Injunction (3/30/2012)
Memo in Support of Motion for Preliminary Injunction (3/30/2012)
Separate Statement of Facts in Support of Motion for Preliminary Injunction (3/30/2012)
Amended Complaint for Declaratory and Injunctive Relief (3/30/2012)
Denial of Preliminary Injunction (5/14/2012)
Emergency Motion for Injunction Pending Appeal (5/21/2012)
Reply in Support of Emergency Motion for Injunction Pending Appeal (5/29/2012)
Ninth Circuit Denial of Injunction (5/30/2012)
Emergency Application to Hon. Justice Kennedy (5/31/2012)
Renewed Emergency Application to Hon. Justice Clarence Thomas (6/1/2012)
Appellant's Opening Brief (6/11/2012)
Amicus Brief, Coalition of Counties (6/18/2012)
Amicus Brief, Citizens for Balanced Use (6/18/2012)
Amicus Brief, Eagle Forum (6/18/2012)
Reply Brief (7/23/2012)
9th Circuit Denial of Preliminary Injunction Motion (12/21/2012)
Petition for Writ of Certiorari (3/1/2013)
Amicus Brief, Coalition of Arizona/New Mexico Counties for Stable Economic Growth (3/29/2013)
Amicus Brief, Cato Institute, the Rio Grande Foundation, the Montana Policy Institute, the Idaho Freedom Foundation, and the Grassroot Institute of Hawaii (3/29/2013)
December 28, 2011: Tombstone files lawsuit in U.S. District Court against U.S. Forest Service
December 28, 2011: Tombstone files Motion for Preliminary Injunction
January 25, 2012: Goldwater Institute files Motion to Continue Consideration of Tenth Amendment Issues
February 20, 2012: Goldwater Institute files Tombstone’s Reply in Support of Motion to Extend Time by Severing and Continuing Consideration of Tenth Amendment Issues
March 30, 2012: Goldwater Institute files amended complaint
May 14, 2012: Court denies preliminary injunction
May 21, 2012: Goldwater Institute files for an injunction pending appeal
May 30, 2012: Ninth Circuit denies injunction
May 31, 2012: Goldwater Institute files emergency application with the Supreme Court of the United States
Showdown at the Red-tape Corral (2/21/2012)
Forest Service Demands $80,000 to Turn Over Public Records to Non-profit Group (5/1/2012)
Court Decision Puts Tombstone, Ariz. One Step Closer to the Grave (5/16/2012)
Daily Caller: Another Tombstone Showdown: The Town vs. the Federal Government (3/5/2012)
Rush Limbaugh: Tombstone's Battle with the Feds (4/18/2012)
CNN: Showdown at the H2O Corral (5/10/2012)
John Stossel: A New Showdown in Tombstone (5/10/2012)
Townhall: Why Are the Feds Trying to Kill Tombstone? (5/16/2012)
Washington Examiner: Arizona Burns Amid Obama's Hydraulic Despotism (5/24/2012)
New York Times: With Wild West Spirit, Tombstone Fights for Its Water (6/23/2012)
The Legal Team
Clint Bolick is the Goldwater Institute’s litigation director. He has extensive success before trial judges and appellate courts. He has won two cases before the U.S. Supreme Court. He was named as a Lawyer of the Year in 2003 by American Lawyer magazine.
Nick Dranias led the Goldwater Institute’s successful challenge to Arizona’s system of government campaign financing to the U.S. Supreme Court. Even before the case was accepted for review, Dranias was able to persuade the Court to intervene in lower court proceedings and block campaign subsidies from being paid to government-funded candidates during the 2010 election cycle. Prior to joining the Goldwater Institute, Dranias was an attorney with the Institute for Justice for three years and an attorney in private practice in Chicago for eight years. In law school, Dranias served on the Loyola University Chicago Law Review, competed on Loyola’s National Labor Law Moot Court Team, and received various academic awards. He graduated cum laude from Boston University with a B.A. in Economics and Philosophy.
Christina Sandefur has litigated to defend property rights, the integrity of contracts, and the right to earn an honest living. Most recently, she won a victory for taxpayers in Friedman v. Cave Creek Unified School District, which established that voter approval of a bond measure for specific purposes forms a contract between the government and the voters. Christina has worked to advance liberty at the Pacific Legal Foundation and Mackinac Center for Public Policy. She earned her law degree from Michigan State University College of Law, where she served as notes editor of the law review and president of the campus Federalist Society.