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Court Decision Puts Tombstone, Ariz. One Step Closer to the Grave

November 18, 2014

Phoenix — Monday, U.S. District Court Judge Frank Zapata denied Tombstone, Arizona’s emergency request to restore its Huachuca Mountain municipal water supply. Over nine months ago, the historic town’s 130-year-old water system was destroyed by massive flooding resulting from torrential rains and the destruction of surrounding forests in the Monument Fire. 

Despite the burial of water reservoirs and water lines under boulders the size of Volkswagens and as much as 12 feet of mud, the Court denied Tombstone’s request to allow it to use mechanized and motorized equipment to restore its water system. In denying the request, the Court ruled that the town did not exhaust efforts to obtain federal permits to use the equipment despite nine months of continuous efforts by the town to secure the U.S. Forest Service’s cooperation. The Court was not moved by a state of emergency declared specifically for Tombstone by Arizona Governor Jan Brewer.
The Goldwater Institute has already filed an emergency appeal of the decision.
“Requiring Tombstone to seek federal permits to repair its municipal water supply is like demanding a federal permit before the City can make repairs to a fire truck,” said Nick Dranias, Goldwater Institute director of constitutional studies and lead attorney in the case. “Under the Tenth Amendment, the federal government has no power during a state of emergency to stop a local government from repairing its own municipal property, which is essential to providing safe drinking water and adequate fire protection.”
The Goldwater Institute is representing the City of Tombstone in this clash with the federal government. Tombstone has property rights to 25 mountain spring heads and all of the water rising and flowing in two canyons in the Huachuca Mountains. Bundled with those rights are access roads and pipeline rights of way. Until last year, the U.S. Forest Service recognized and respected those rights, which date back to the days of Wyatt Earp. Today, the federal government denies they exist and refuses to allow Tombstone to restore more than three of its spring water catchments. 
With wildfire season upon southeastern Arizona, the town is getting less than a third of its normal mountain water supply and is being forced to rely almost entirely on arsenic-contaminated well water.
“If the federal government can deny Tombstone’s water rights, then nobody can rely on their water rights,” said attorney Nick Dranias. “Because water is the lifeblood of western states, the federal government is threatening jobs and economic growth across the West, not just the lives and properties of Tombstone residents.”
Tombstone may be the tip of the iceberg. Across the country, federal agencies are aggressively blocking state and local governments, ranchers and ordinary citizens from rightfully using and enjoying federal lands. Public access roads and beaches are being closed. 
“Tombstone is making a stand for state sovereignty, property rights, and public health and safety against federal overreach,” said Christina Sandefur, Goldwater Institute attorney and litigation team member. “We all have a stake in stopping the Forest Service from killing the ‘Town Too Tough To Die.’”
The Goldwater Institute is asking the court to recognize that state and local governments have sovereignty under the Tenth Amendment to freely respond to natural disasters without being forced to cut through federal red tape, and also to enforce property rights enjoyed by both citizens and local governments on federal lands.
Learn more about Tombstone v. United States here. The Goldwater Institute protects America’s greatest inheritance – the liberty and economic freedom of the individual – by holding government accountable and standing up for regular taxpayers just like you.
For more information, please contact Communications Director Michael Kelley at (602) 633-8985 or at



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