                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 21 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



CITY OF TOMBSTONE,                               No. 12-16172

              Plaintiff - Appellant,             D.C. No. 4:11-cv-00845-FRZ

  v.
                                                 MEMORANDUM *
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.



                   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.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      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).


                                           2
      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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