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Supreme Court declines Tombstone's emergency water repair request

November 18, 2014

By Samantha Bare, Cronkite News

WASHINGTON – The Supreme Court on Tuesday rejected Tombstone’s request for an emergency injunction that would have let the city take heavy equipment on federal lands to fix water pipelines damaged in last year’s wildfires.
Town officials say the repairs are critical to maintaining the supply that keeps the town alive and that would be needed to fight any new wildfires. But they said the U.S. Forest Service has blocked any significant repair work, citing a 1964 law that prohibits heavy equipment on federal lands.
Forest Service officials said Tuesday they cannot comment because they are being sued by the town over the issue.
In a previous court ruling in the case, however, a federal district judge quoted the service as saying it had “devoted an immense amount of resources and done everything in its power to expeditiously authorize” the repair work. But it said Tombstone had “largely failed to provide the specific information” the government needs to determine whether the proposed work meets all the regulations the service is required to enforce.
The water line, originating in the Huachuca Mountains, supplied 50 to 80 percent of the town’s water until it was damaged last year. It is currently supplying only a limited amount of water from three springs, where emergency repairs have been made with PVC pipes and sandbags.
Tombstone City Manager George Barnes said he fears those temporary repairs may be washed away in the coming months.
“We’re trying to fix things before monsoons take away what little work we did. We could be back to square one a month from now,” Barnes said.
The city sued in federal district court last year and sought an injunction to allow the work to proceed while the case is pending. That ended up with the request to the Supreme Court. Justice Clarence Thomas on Tuesday rejected the request for an injunction, following a similar rejection earlier by Justice Anthony Kennedy.
A spokesman for the Goldwater Institute, which is helping the city with the case, said he did not expect the injunction to be granted, but that they are trying to bring attention to the city’s plight.
Nick Dranias, the institute’s constitutional policy director, said that not letting the city start the repair work will subject it to months of risk for burning in the middle of wildfire season.
“The city of Tombstone’s very existence is at stake, and a decision like this could very well prove to be its death penalty,” Dranias said.
He said the Supreme Court request was also meant to send a message to the Forest Service that local governments “must be free to take actions under a state of emergency to protect public health and safety.”
Dranias said the city of 1,500 is living on “borrowed time” as it faces wildfire season, and that the government is putting residents at risk for “no legitimate reason.”
“The reality is there’s nothing of anything significance alive up there because of the fire,” he said. “To say to the city, take your chances and see how long you can get along with what you’ve got is fundamentally irresponsible.”
Barnes said the town needs relief now.
“Right now we’re OK. But at any moment if the well goes down, we’re not OK,” Barnes said. “It’s been like walking on eggshells for the past nine months.”
Gov. Jan Brewer declared an emergency in August in response to the city’s water problems.
While the lawsuit is pending,  Rep. Jeff Flake, R-Mesa, has introduced a bill to let state and local governments access wilderness lands without federal interference during a declared state of emergency. The bill, introduced in response to Tombstone’s situation, is scheduled for a House committee hearing Friday in Washington.



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