Arizona governor ignoring federal environmental laws, says shipping containers at border are lawful

By Howard Fischer
Capitol Media Services
PHOENIX -- Arizona Gov. Doug Ducey doesn't want to have to worry about federal environmental laws for his project putting shipping containers along the border, including in Yuma County.
In new court filings, Brett Johnson, the governor's attorney, wants U.S. District Court Judge David Campbell to block the Center for Biological Diversity from intervening in a lawsuit the governor filed to declare that he has the right to construct a wall with those double-high containers. Johnson told the judge 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 that the construction was illegal because Ducey did not do the required environmental assessments.
Johnson said all that is legally irrelevant.
In fact, he told Campbell that if Ducey wins his argument, then the property where the containers are going up never was federal land in the first place. And if that's the case, he said, there is no federal jurisdiction -- and no federal environmental laws apply or could be violated.
All allowing the environmental organization to intervene would do, Johnson said, is gum up the case over unrelated issues.
But attorneys for the federal agencies who the governor is suing apparently have no such concern. They told Campbell they are not taking a position on the bid by the Center for Biological Diversity to become part of the case.
The fight is over who controls a 60-foot-wide strip along the Arizona-Mexico border.
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.
What changed is Ducey ordering the placement of shipping containers to fill gaps in the federally constructed border wall in the Yuma area. That drew a nasty response from the Bureau of Reclamation who accused the governor of trespassing on federal land and told him to remove them.
The governor responded by filing suit insisting that 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.
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 his 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.
What makes intervention by his client crucial, Fink said, is the fear that the attorneys from the U.S. Department of Justice will 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.''
But 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.''
Johnson said the issues are simple.
First, he said, is what type of jurisdiction, if any, does the federal government have over the Roosevelt Reservation.
Ducey, through his attorney, contends that President Roosevelt had no legal right to simply declare that all that land along the border to be 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, 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.'' And that goes to the second issue the state is raising: whether Ducey has the constitutional authority to protect Arizona's borders.
All that goes to constitutional requirement that the federal government must 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 prevents the state from defending itself. And 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 actually declared an "invasion,'' even after Attorney General Mark Brnovich told the governor 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 that the governor, authorizing the state Department of Emergency and Military Affairs to close the gaps, is essentially citing the constitutional provisions.
No date has been set for a hearing.
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