If the U.S. Forest Service continues to try to yank Tombstone’s water rights by stalling improvements to the line, the city will sue, officials said this week.

“We’ll all be in court soon,” said City Clerk/Manager George Barnes, adding that he’s sent a briefing package to the State Attorney General in anticipation of a legal battle. “The government has declared a state of emergency and we’re being deliberately, in my opinion, hampered from fulfilling our obligation to fix that problem.”

Facing a freezing winter that will delay repairs even longer, Tombstone officials are scrambling to make repairs to a pipeline in the Huachuca Mountains where 24 springs carrying 50 to 80 percent of the town’s water usually flows. Those lines were damaged first by fire and then by rains this summer.

But Heidi Schewel, spokeswoman for the U.S. Forest Service, said that Tombstone needs to work within the federally required guidelines — and permits have already been granted for some of the wilderness areas.

“You have to look at the big picture here, if it’s some place that's right on the wilderness boundary,” Schewel said. “[That’s] where there's not a lot of mechanical equipment that needs to be hauled in, that's very different in Gardner Canyon where that needs to be preserved.”

Schewel explained that “in order to provide authorization for mechanical and/or motorized incursions,” she said, “There's a legal process that we have to follow. No matter who's doing what this is something that we have to do.”

That legal process changes depending on where in the wilderness the repairs are. Potential repairs lie in Gardner Springs right on the trail, Schewel said, so approval works differently there than other places like Miller Springs where work was already approved.

“This process has been completed for work at Miller Springs, [which is] also in the wilderness but closer to the wilderness boundary and with less potential for damage to natural resources and wilderness character, thus allowing the City of Tombstone to repair the water system at that location.”

But Barnes called hogwash on environmental preservation grounds.

“That stuff’s under 12 feet of mud and rock,” Barnes said. “How are you going to do it by hand? One guy had the nerve to say that we should get a hand device to break the boulders.”

Barnes said the whole attempt to slow the process of repairs was to simultaneously chip away at Tombstone’s claim to the water itself.

He cites a letter from 1998 by the Sierra Vista Ranger District of the U.S. Forest Service commenting on the ability to maintain the Upper San Pedro River Valley.

Translation?

Attempts by Fort Huachuca at that time, to claim more water up in the Huachucas was projected to be “a good test case for gathering additional information needed to determine the efficacy of …improving the situation for the Upper San Pedro River.”

“They want to take the water,” Barnes said. “Why would they be doing this? I’ll tell you exactly why. They think that it’d be wiser to get it through the city of Sierra Vista.”

But the Forest Service denied these claims.

“It’s not that we are trying to stall it, we don’t have a lot of choice,” Schewel said, referring to the legal hurdles they have to jump as federal requirements demand.  

U.S. Forest Service officials have said in previous interviews that the intention is not to claim Tombstone’s water, an issue they’ve pledged to put aside until repairs are made, Schewel said in a previous interview. Rather, their goal is to preserve federally recognized wilderness under the Wilderness Act of 1964.

Negotiations came to a boil when Tombstone officials moved equipment onto the mountain and began work on the lines without approval in early November after months of negotiations.

This prompted U.S. Forest Service officials to promise the city an expedited approval process, but a month later nothing has changed, Barnes said.

“The Forest Service continues to resist us at every opportunity, every kind of delay you could think of, including letters like this,” Barnes said, referring to a Dec. 2 letter where Supervisor Jim Upchurch said their application for repairs would be stalled pending further documentation.

Repairs couldn’t be made in the Gardner Springs area of the Miller Canyon wilderness until they could show plans to rehabilitate trails in a repair site as well as show plans for “removal of damaged infrastructure, e.g. chain link fence, from the wilderness,” Upchurch said in the letter.

“We will need to see your plans for completing this work prior to approval of continued work in Gardner Springs,” Upchurch said.

Barnes said it’s just another letter where the requirements have suddenly changed, and that the U.S. Forest Service is misinterpreting the Wilderness Act.

“There’s nothing in there that commits to a date, that commits to anything. It’s going on and on and on and on,” Barnes said.

Barnes is referring to parts of the act that account for previously claimed land that became wilderness in 1964 — Tombstone had rights to the line well before Arizona was a state, all the way back to 1881, Barnes said.

The act says that national forest land must be preserved, and that use of machinery must go through an approval process, Schewel said.

However, the Wilderness Act also authorizes work “consistent with … use of land for …waterlines,” the law says.

This means that using mechanized equipment isn’t forbidden — something that Upchurch notes in his letter but warned was slowing the approval process.

“Work that can be done without the use of motorized or mechanized equipment would make the approval much easier to complete,” Upchurch said.

Doing this work by hand is almost impossible, though, Barnes said, with 12 feet of mud and rock to drill into to get to the lines devastated by fire damage and monsoon flooding.

“It looks like another two months on a critical repair,” Barnes said.

Added to the nightmare is another problem: vandalism.

The mechanized equipment, which causes $2,000 to $4,000 in rentals, is being vandalized, Barnes said.

“Our equipment is being vandalized in the forest. We’ve had hydraulic fittings removed from equipment that could have killed someone, unbolted, loosened so it would leak.

Last night we had the side window of a bulldozer smashed in and 30 gallons of gas stolen from the tank,” Barnes said. “Whoever it is it’s considered a terrorist act, because we’re under a state of emergency and that’s a public water supply that they’re impacting. So we’re escalating that to homeland security.”

Though fights for the water have occurred before, Barnes said the U.S. Forest Service’s behavior is uncharacteristic.

“In 1977 when we needed these permits we had them in a week,” Barnes said, referring to repairs on some of the same springs being disputed now, after the Carr Peak Fire destroyed the line. “The wilderness act allows for that to happen.”

It’s gotten to the point where Barnes and other city officials are exasperated, they say.

“Now we have people up there damaging equipment and who knows what’s coming next? We could have been done,” Barnes said. “They’re doing it because they want the water. I think the Forest Service is making up their own rules.”

As far as ownership of the line goes, Barnes said that’s undeniable.

“We don’t just have trivial records. We know what the hell we own,” Barnes said, referring to dozens and dozens of original handwritten deeds, maps, and claims that go back as early as 1881. “There’s a lot of water out there, and we don’t have any intention of losing it. We’ve never lost it before.”

But for the town too tough to die, they’re ready to continue the battle.

“Here we go. It’s David versus Goliath again,” Barnes said.