PHOENIX — Arizona Gov. Katie Hobbs is pulling the plug on her predecessor’s taxpayer-funded fight with the Biden administration over who owns land along the U.S.-Mexico border.
Hobbs is taking the actions necessary to dismiss the lawsuit that Doug Ducey filed in October asking a judge to void a 115-year-old presidential declaration that gives the federal government exclusive control of a 60-foot swath along the Arizona-Mexico border, said an aide to Hobbs, who was sworn into office Tuesday.
That’s the land on which the former governor already had started to place shipping containers. In essence, he wanted a federal judge to give him the go-ahead to not just keep them there but erect more.
That part of the fight came to an end after the Department of Justice filed its own lawsuit accusing Ducey and state government of trespassing and threatening to remove them — and bill the state — if they remained. The former governor backed down and signed a contract for the same firm that put them there to take them away, at a cost to taxpayers of $76 million.
But that still left Ducey’s original lawsuit seeking a declaration of ownership and the right to occupy what is known as the Roosevelt Reservation.
As of 10 a.m. Monday, it became Hobbs’ suit as Ducey had sued the federal government not in his personal capacity but as governor of the state. And that immediately made Hobbs the plaintiff.
“We are planning to drop the lawsuit,” gubernatorial press aide Murphy Hebert said. The only thing left, she said, is to work out the timing of the court action.
The new governor’s actions will do more than simply end the litigation. It also means taxpayers will no longer have to pick up the tab for the work of Brett Johnson, the private attorney who Ducey hired to pursue the claim.
How much Johnson and his law firm, Snell & Wilmer, have been paid so far in connection with this lawsuit was not immediately available.
The decision by Hobbs should immediately moot a new court filing by an organization that says it represents the victims of crime committed by people not in this country legally.
In a legal brief filed just this past Sunday, attorney Michael R. Williams urged U.S. District Court Judge David Campbell to reject a bid by the Biden Administration to throw out Ducey’s lawsuit.
The new filing parrots in part Ducey’s own claim that President Theodore Roosevelt lacked the legal authority to issue his 1907 proclamation declaring that 60-foot strip along the California, Arizona and New Mexico border the property of the federal government. But Advocates for Victims of Illegal Alien Crime also contend that even if it is federal land, actions by the state along the border are a legal exercise of its authority, as a sovereign state, “to protect its citizens from the harm that has been inflicted by illegal immigration.”
Once Hobbs drops the lawsuit, the brief becomes just 18 pages of legal arguments looking for a cause.
The new governor’s decision not to prolong the litigation should come as no surprise.
“It’s not land that’s our land to put things on,” she told Capitol Media Services in an interview after winning the election against Republican Kari Lake. And she called Ducey’s decision to erect the storage trailers — and the lawsuit that he filed to justify that action — a “political stunt.”
Hobbs also derided an argument made by Ducey’s attorney to Judge Campbell that Arizona should be able to take action because the federal government had failed to meet its constitutional requirement to “protect each of the states against invasion.”
That, in turn, led to Johnson citing another provision that allows the state, when “actually invaded or in such imminent danger as will not admit delay’’ to “engage in war” without congressional authority.
Ducey never actually formally declared that Arizona was being invaded. But Johnson told the judge that the governor, in authorizing the state Department of Emergency and Military Affairs to close the gaps, is essentially citing the constitutional provisions.
“The ‘border invasion’ plan is ridiculous,” Hobbs told Capitol Media Services, saying it wouldn’t do anything to address the problem.
“If you declare an invasion, then what happens” she said. “Who are the troops that are going to come to defend it?”
And Hobbs said there’s also a deeper issue.
“The border is not Arizona’s to defend,” she said. “It is the United States border.”
Hobbs has said her role as governor is work with border communities, “coordinating with them on what they need from the state to keep their community safe.”
The new border wall made of double-stacked containers numbered almost 1,000 containers last week and stretched almost four miles. Video by Tim Steller/Arizona Daily Star
