City of Tombstone v. United States

MEMORANDUM

The City of Tombstone, Arizona, appeals from the district court’s denial of its motion for a preliminary injunction seeking to use motorized vehicles and heavy equipment to repair and to restore its Huachuca Mountain water infrastructure without Forest Service authorization. Although Tombstone has alleged it has access rights to certain water springs on federal land by virtue of nineteenth-century vested property rights and a 1962 Special Use Permit, the contours of any such entitlements have yet to be adjudicated definitively. The underlying case remains pending in the district court.

On this record, we conclude that Tombstone failed to raise serious questions going to the merits of its Tenth Amendment challenge and we do not reach whether the City has satisfied the other requirements for a preliminary injunction. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir.2011). Assuming without deciding that the Tenth Amendment constrains the Forest Service’s authority to regulate Tombstone’s activities under the Property Clause, no unlawful commandeering has been shown. See, e.g., Printz v. United States, 521 U.S. 898, 925-26 , 117 S.Ct. 2365 , 138…