By Howard Fischer
Capitol Media Services/Arizona Daily Star
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.
