City of Tombstone v. United States of America

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CITY OF TOMBSTONE,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA;
UNITED STATES DEPARTMENT OF
AGRICULTURE; TOM VILSAK,
Secretary of Agriculture; TOM
TIDWELL, Chief Forester of the USDA
Forest Service; CORBIN NEWMAN,
Regional Forester for the Southwestern
Region of the U.S.,
Defendants - Appellees.
No. 12-16172
D.C. No. 4:11-cv-00845-FRZ
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, Senior District Judge, Presiding
Argued and Submitted December 4, 2012
San Francisco, California
Before: O’SCANNLAIN, THOMAS, and CALLAHAN, Circuit Judges.
FILED
DEC 21 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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2
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 (1997); New York v. United States, 505 U.S. 144, 175–76
(1992). There is no evidence that Tombstone was compelled “to enact any laws or
regulations,” or “to assist in the enforcement of federal statutes regulating private
individuals.” Reno v. Condon, 528 U.S. 141, 151 (2000).

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3
It is the Supreme Court’s prerogative alone to overrule its precedents.
Nunez-Reyes v. Holder, 646 F.3d 684, 692 (9th Cir. 2011) (en banc). We therefore
have no authority to apply the traditional or integral governmental functions test
Tombstone has urged. See Nat’l League of Cities v. Usery, 426 U.S. 833, 852
(1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528,
556–57 (1985).
Coalition of Arizona/New Mexico Counties for Stable Economic Growth’s
motion for permission to participate as an amicus curiae is granted.
AFFIRMED.

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