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On behalf of Tombstone, the Goldwater Institute has filed a motion for a preliminary injunction that would allow city officials to go into the Huachuca Mountains and repair the damaged water transport infrastructure. Tombstone’s case is supported by the Tenth Amendment and by the fact that the city’s water rights were vested long before the Wilderness Act of 1964 and the concomitant Arizona Wilderness Act of 1984. The Tenth Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” and implicitly embodies “a policy against impairing the states’ integrity or ability to function.”
In Tombstone’s “Memorandum in support of motion for preliminary injunction,” the Goldwater Institute clearly shows that the city satisfies the four requirements for granting a preliminary injunction. In addition, this document gives numerous examples of how the Forest Service’s refusal to allow Tombstone officials access to the Miller Peak Wilderness area, and their inexcusable stonewalling of the permit issuing process, has not only seriously compromised Arizona’s integrity and Tombstone’s ability to function, but has put the town’s very existence in jeopardy. The requirements for the court granting Tombstone a preliminary injunction include, “whether the plaintiff is likely to suffer irreparable harm in the absence of preliminary relief,” and “whether an injunction is in the public interest.” 
The Forest Service’s refusal to allow Tombstone officials access to the damaged water supply infrastructure constitutes unlawful “commandeering” of the city’s water supply, and this commandeering “is certain to cause irreparable harm.” This is because “irreparable injury includes the impairment or threatened loss of rights or interests in real property,” “impairment of sovereign interests without notice or opportunity to be heard,” and “harm or threats of harm to public health and safety.” The Goldwater Institute explains that water rights are “real property interests” in Arizona and that Tombstone holds “title to water rights and water structure and pipeline right of way easements,” pursuant to a Congressional Act of July 26, 1866. By this Act, the Federal government is obligated to “protect the rights of individual possessors of water; and to recognize local customs, laws, and state court decisions.” Indeed, in 1907, Gifford Pinchot (a well-known “progressive”) wrote in the U.S. Forest Service’s book, “Use of National Forests,” “The creation of a National forest has no effect whatever on the laws that govern the appropriation of water. This is a matter governed entirely by state and territorial laws.”
In addition, the Forest Service recognized Tombstone’s vested water rights in 1916, and in 1962 granted the city a special use permit to maintain and repair its water delivery infrastructure. The Goldwater Institute further explains that the city’s “health and safety interest is not offset by any bona fide environmental interest.” This is because “Any environmental footprint from the work Tombstone seeks to perform will be washed away in the next monsoon,” and that “Even if there were a lasting footprint, environmental interests are not better served by requiring Tombstone to build only temporary structures with hand tools. Those structures will be washed away in the next monsoon. Given the inevitability of seasonal monsoons and periodic flood events in the Huachuca Mountains, it makes no sense to force repair and rebuild temporary structures ad infinitum with the continuous ground displacement that entails.” 
Nevertheless, in 2011-2012, the Forest Service has chosen to ignore not only Pinchot’s (the Forest Service’s first Chief Forester) comment, but the above-mentioned July 1866 Congressional Act and a large body of federal and state case law. By their refusal to allow Tombstone officials access to the city’s water delivery infrastructure, the U.S. Forest Service has violated Arizona’s state sovereignty, directly regulating the state through a political subdivision (Tombstone), in violation of a Tenth Amendment corollary that the Constitution “confers upon Congress the power to regulate individuals, not states.” In addition, the Forest Service has illegally commandeered not only the town’s physical water system, and the authority of Governor Jan Brewer, but Tombstone’s integrity and ability to function. Americans can only hope that the Federal District court will rule against the U.S. Forest Service and order them to allow Tombstone to repair vital water delivery infrastructure as soon as possible, ensuring that the town will continue to exist.
 Goldwater Institute, “City of Tombstone’s Memorandum in Support of Motion for preliminary injunction,” p. 5-6; at www.goldwaterinstitute.org.
 Ibid., p. 11
 Printz v. United States 521 U.S. 898, 920 (1997), as cited by Goldwater Institute, Ibid., p. 15; Goldwater Institute, “Tombstone’s reply in support of motion to extend time by severing and continuing consideration of Tenth Amendment issues,” p. 8-12, at www.goldwaterinstitute.org.
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