Gov. Doug Ducey contends federal environmental laws do not apply to his project of putting shipping containers along the border because the land does not belong to the U.S. government.
In new court filings, Ducey’s attorney, Brett Johnson, asks a judge to block a national environmental group based in Tucson, the Center for Biological Diversity, from intervening in his lawsuit against federal agencies over the project.
Ducey filed the lawsuit to declare he has the right to construct a wall with the double-high containers. Johnson told U.S. District Court Judge David Campbell the only issue before him is whether the federal government controls the property.
The environmental group, however, wants the judge to consider its arguments that the makeshift wall is blocking migration corridors of endangered species. More to the point, it contends the construction was illegal because Ducey did not do the required environmental assessments.
But Johnson told Campbell that if Ducey wins his argument, then the property where the containers are going up was never federal land in the first place. And if that’s the case, he said, there is no federal jurisdiction — and no federal environmental laws have been violated.
Allowing the environmental organization to intervene would gum up the case over unrelated issues, Johnson said.
Attorneys for the federal agencies that Ducey is suing apparently have no such concern. They told Campbell they are not taking a position on the center’s bid to become part of the case.
‘Trespassing’ claim
The dispute is over who controls a 60-foot-wide strip along the Arizona-Mexico border.
Border Patrol agents patrol along a line of shipping containers stacked near the border in August near Yuma.
Federal officials have long operated under the premise it belongs to the federal government. That’s based on a 1907 declaration by President Theodore Roosevelt reserving those lands to keep them “free from obstruction as a protection against the smuggling of goods between the United States and Mexico.’’
It has come to be known as the Roosevelt Reservation.
But Ducey ordered the placement of shipping containers to fill gaps in the federally constructed border wall in the Yuma area. The U.S. Bureau of Reclamation accused the governor of trespassing on federal land and told him to remove them.
Ducey responded with his lawsuit insisting it’s not federal land or, that if it is, the state exercises joint jurisdiction. And then he ordered a second line of double-high containers erected in Cochise County.
Arizona Governor Doug Ducey shared a video Thursday morning showing the progress of a shipping-crate border barrier being built in Southern Arizona west of the Coronado National Memorial. According to Ducey, nearly one mile of the planned 10-mile structure has been erected. Video courtesy Doug Ducey.
Environmental laws skirted
Attorney Marc Fink of the Center for Biological Diversity said this is more than a turf fight between the state and the feds.
“The governor is eliminating the last remaining wildlife corridors between Arizona and Mexico, causing significant harm to endangered species such as the jaguar and ocelot that depend on connectivity habitat with Mexico for their long-term survival and recovery,’’ he said.
Fink pointed out that Ducey is erecting the barrier without complying with things like the Endangered Species Act, the National Environmental Protection Act and the National Forest Management Act, all of which he said provide “procedural and substantive protections’’ for the public and the environment. In essence, he said, Ducey is using the lawsuit and his claim of state control of the border strip to circumvent federal environmental review of his activities.
“The governor seeks to remove federal jurisdiction and control over the state’s activities at the border, which would thereby eliminate all federal laws and protections,’’ Fink said.
Intervention by his client is crucial, Fink said, because attorneys from the U.S. Department of Justice might see the case strictly as a fight over jurisdiction.
“Due to the precedent-setting nature of the governor’s constitutional challenges, defendants are likely to be primarily focused on those legal issues, and the related ownership, jurisdiction and authority over southern border lands,’’ he told the judge. “The Center’s intervention would provide a unique and unrepresented perspective concerning the endangered wildlife, critical habitat and general environment of the border lands, which may be entirely neglected by the other parties.’’
Focusing strictly on the ownership question is exactly what Ducey’s attorney wants.
“The Center solely seeks to intervene to promote an unrelated political interest related to purported environmental concerns concerning certain actions by Arizona along its border,’’ Johnson told the judge.
“But those interests have no bearing on the jurisdictional and constitutional dispute that is at the heart of this case,’’ he continued. “The Center’s attempt to expand this litigation would dramatically and unnecessarily complicate the matter.’’
Roosevelt’s authority challenged
Ducey, through his attorney, contends President Roosevelt had no legal right to simply declare that all that land along the border is the property of the federal government. He said a president can act to seize land only with congressional approval.
If Campbell agrees, that pretty much would end the case, as the land would be state property.
But if the judge does not agree, the governor has a fall-back argument: Even if the declaration is legal, and federal agencies do have jurisdiction, that is not exclusive.
Put another way, Johnson says the state has “concurrent jurisdiction.’’ That goes to the second issue the state is raising: whether Ducey has the constitutional authority to protect Arizona’s borders.
‘Invasion’ of state cited
There is a constitutional requirement that the federal government protect each state against invasion. Ducey said the feds are not living up to that obligation.
At the same time, Johnson said, the actions by federal agencies to force Ducey to remove the shipping containers prevent the state from defending itself. He pointed out the Constitution allows the state to “engage in war’’ without constitutional authority when “actually invaded or in such imminent danger as will not admit delay.’’
Ducey never declared an “invasion,’’ even after Republican Attorney General Mark Brnovich told him earlier this year that not need be in the form of a military force but can be applied to “invasion by hostile non-state actors such as cartels and gangs.’’ But Johnson said Ducey, in authorizing the state Department of Emergency and Military Affairs to close the border gaps, is essentially citing the constitutional provisions.
No date has been set for a hearing.
