A federal magistrate is no longer accepting the U.S. government’s shutdown excuse to let it ignore a lawsuit aimed at stopping construction of new walls along the U.S.-Mexico border.
Magistrate James Marner pointed out that despite the government shutdown, federal wall construction has continued through what the challengers call “ecologically sensitive” grasslands in Southern Arizona’s San Rafael Valley.
He said that means Homeland Security Secretary Kristi Noem can no longer delay responding to the lawsuit. He’s given her a Nov. 14 deadline to explain why he should deny the Center for Biological Diversity’s request to halt construction.
This photo of construction activities related to a border wall through the San Rafael Valley was taken by Russell McSpadden of the Center for Biological Diversity and submitted to a federal magistrate who is considering whether the project is illegal and should be halted.
Marner had granted Noem’s earlier request to put off responding to the lawsuit. He said at the time that he had to respect her arguments that lawyers from the Department of Justice, representing Noem, are legally prohibited from working while they are not being paid.
In the new order, he said it’s likely federal lawyers already did much of the legal work to respond to the lawsuit, and must file it by Nov. 14.
“This is an encouraging step forward,’’ said Russell McSpadden, southwest conservation advocate for the Center for Biological Diversity, which filed the lawsuit in July. “It means the Department of Homeland Security cannot use the shutdown as a pretext to continue walling off one of the most vital wildlife corridors in the Sky Islands while our case sits idle.’’
In the San Rafael Valley, near Lochiel, Arizona, a construction crew with Fisher Sand and Gravel uses heavy equipment to grind rocks in preparation for producing concrete on-site. The concrete will fill deep trenches into which workers will sink the steel bollards of the border wall, said Russ McSpadden of the Center for Biological Diversity.
The lawsuit centers around a provision in the 1996 Immigration Reform and Immigrant Responsibility Act, which authorizes Homeland Security to construct barriers and roads along the border.
The Department of Justice says it also allows Noem to “waive any legal requirements” if she deems that necessary “to ensure expeditious construction of the barriers and roads.’’
The lawsuit contends Congress acted illegally when it amended the 1996 law in 2005, delegating authority to waive laws to the secretary. It seeks a summary judgment, without trial, requiring that work be halted unless and until Homeland Security complies with environmental laws.
“The Arizona Border Wall Project would essentially be the death knell for jaguars in the United States, eliminating over 53 years worth of jaguar conservation efforts,’’ restricting the habitat of the animals and their ability “to find mates, prey, and other resources,’’ the lawsuit states.
It also says water use needed for the concrete is likely to impact the aquifers.
In August, Noem’s attorneys asked Marner to toss the case.
The magistrate said he wanted the parties to file more information with the court. That was interrupted Oct. 1 after Congress failed to approve a spending plan, the government shut down, and Noem asked for the delay.
The Trump administration is building 25 miles of 30-foot tall border wall through the the grasslands of the San Rafael Valley, shown here before the construction.
Marner granted a delay through the end of October. Noem’s attorneys came back a week ago asking for a longer delay, and promising to notify the magistrate “as soon as Congress has appropriated funds.’’
“We greatly regret any disruption caused to the court and the other litigants,’’ the government lawyers said, asking Marner to extend the case until they “are permitted to resume their usual civil litigation functions.’’
Marner was unwilling to grant that open-ended request.
He cited McSpadden’s sworn statement to the court detailing what he saw in three separate trips to the San Rafael Valley construction area. In the latest, about a week ago, he reported that more than a quarter mile of new border wall had been built since the middle of September, months after the lawsuit was filed.
McSpadden said that was on top of the damages he saw in earlier trips, including “two large areas of grassland within the Coronado National Forest had been scraped bare for a staging yard and what had been called a ‘man camp’ for worker housing.’’
He said it appeared a construction crew had created a gravel quarry on the slope of a mountain at the eastern edge of the San Rafael Valley “within federally designated jaguar critical habitat,” and submitted a photo he had taken.
Marner, in his order, said it is the obligation of the side that wants to delay proceedings — in this case, Homeland Security — to demonstrate a delay is legally warranted.
He said he must consider factors such as the possible damage that may result from granting a delay, and what hardship might be suffered if someone is forced to go ahead with a case.
In this case, the magistrate said, the balance is with the Center for Biological Diversity. He dismissed the idea of a hardship on the government, pointing out that Noem’s lawyers already had been required to file their arguments by Oct. 3 — just three days after they first asked him to delay the case.
“Given this time frame, the court expects that much of the work necessary to prepare defendants’ reply is already complete,’’ Marner wrote.
