Feds have no say in shipping container border wall

Governor Doug Ducey argues that federal environmental laws do not apply to his plan to place shipping containers along the border because the land does not belong to the US government.

In new court filings, Ducey’s attorney, Brett Johnson, is asking a judge to block a Tucson-based national environmental group, the Center for Biological Diversity, from intervening in his lawsuit against federal agencies over the project.

Ducey filed a lawsuit claiming he has the right to build a wall with the double-height containers. Johnson told U.S. District Court Judge David Campbell that the only question before him was whether the federal government controlled the property.

The environmental group, however, wants the judge to consider its arguments that the makeshift wall is blocking the migration corridors of endangered species. Specifically, he argues that the construction was illegal because Ducey failed to do the required environmental assessments.

But Johnson told Campbell that if Ducey wins his argument, then the property where the containers go up was never federal land in the first place. And if so, he said, there is no federal jurisdiction — and no federal environmental laws have been violated.

Allowing the environmental organization to step in would complicate the case on unrelated issues, Johnson said.

Lawyers for the federal agencies that Ducey is suing apparently have no such concern. They told Campbell they were taking no position on the center’s offer to be part of the deal.

The dispute is over control of a 60-foot-wide strip along the Arizona-Mexico border.

Federal officials have long operated on the assumption that it belongs to the federal government. This is based on a 1907 declaration by President Theodore Roosevelt reserving these lands to keep them “free from obstruction as a protection against the smuggling of goods between the United States and Mexico”.

It is known as the Roosevelt Reserve.

But Ducey ordered the placement of shipping containers to fill gaps in the federally-built border wall in the Yuma area. The United States Bureau of Reclamation accused the governor of trespassing on federal lands and told him to remove them.

Ducey responded with his lawsuit insisting that it is not federal territory or, if it is, the state exercises joint jurisdiction. And then he ordered a second line of double-height containers erected in Cochise County.

Attorney Marc Fink of the Center for Biological Diversity said it was more than a turf battle between the state and the federal government.

“The governor is eliminating the last remaining wildlife corridors between Arizona and Mexico, causing significant damage to endangered species such as jaguars and ocelots that depend on connectivity habitat with Mexico for their survival and their long-term recovery,” he said.

Fink pointed out that Ducey was erecting the barrier without complying with things like the Endangered Species Act, the National Environmental Protection Act and the National Forest Management Act, which he said provide “procedural and substantive safeguards” for the public and the environment. Essentially, he says, Ducey is using the lawsuit and his claim for state control of the border strip to circumvent federal environmental review of his activities.

“The governor seeks to remove federal jurisdiction and control over state activities at the border, thereby eliminating all federal laws and protections,” Fink said.

His client’s intervention is crucial, Fink said, because attorneys for the U.S. Justice Department may view the case strictly as a fight for jurisdiction.

“Due to the nature of the Governor’s constitutional challenge precedents, defendants are likely to focus primarily on these legal issues, as well as related ownership, jurisdiction and authority over the southern border lands,” a- he told the judge. the intervention would provide a unique and unrepresented perspective regarding endangered wildlife, critical habitat and the general environment of the border lands, which may be entirely overlooked by other parties.

Focusing strictly on the ownership issue is exactly what Ducey’s attorney wants.

“The Center seeks only to intervene to further an independent political interest related to alleged environmental concerns regarding certain Arizona actions along its border,” Johnson told the judge.

“But these interests have no bearing on the jurisdictional and constitutional conflict that is at the heart of this case,” he continued. “The Center’s attempt to extend this litigation would significantly and unnecessarily complicate the case.”

Ducey, through his attorney, argues that President Roosevelt had no legal right to simply declare all of this land along the border to be federal property. He said a president can only act to seize land with the approval of Congress.

If Campbell agrees, that would pretty much end the deal, as the land would be state property.

But if the judge disagrees, the governor has a fallback argument: Even if the statement is legal and federal agencies have jurisdiction, it’s not exclusive.

In other words, Johnson claims the state has “concurrent jurisdiction.” This goes back to the second question the state raises: whether Ducey has the constitutional authority to protect Arizona’s borders.

There is a constitutional requirement that the federal government protect each state from invasion. Ducey said federal authorities are failing to meet that obligation.

At the same time, Johnson said, the actions of federal agencies to force Ducey to remove the shipping containers make it impossible for the state to defend itself. He pointed out that the Constitution permits the state to “engage in war” without constitutional authority when it is “really invaded or in imminent danger which will not admit of delay.”

Ducey never declared an ‘invasion’, even after Republican Attorney General Mark Brnovich told him earlier this year that it didn’t need to be in the form of military force, but could be enforced. to “invasion by hostile non-state actors such as cartels and gangs”. But Johnson said Ducey, in authorizing the state Department of Emergencies and Military Affairs to fill border gaps, is essentially citing constitutional provisions.

No date has been set for a hearing.