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Federal government lawyers say lawsuit by Ducey over Arizona border shipping containers is flawed

Arizona Gov. Doug Ducey addresses reporters Thursday, Sept. 8, 2022 in front of a section of shipping containers filling gaps in border fencing near Yuma. Behind him are officials including Yuma County Sheriff Leon Wilmot, far left, and Mayor Doug Nicholls, far right.
Victor Calderón/KAWC
Arizona Gov. Doug Ducey addresses reporters Thursday, Sept. 8, 2022 in front of a section of shipping containers filling gaps in border fencing near Yuma. Behind him are officials including Yuma County Sheriff Leon Wilmot, far left, and Mayor Doug Nicholls, far right.

By Howard Fischer
Capitol Media Services
PHOENIX -- Lawyers for the federal government say a lawsuit by Arizona Gov. Doug Ducey seeking control of land along the border to place shipping containers is "flawed on so many fronts'' that it should not be allowed to proceed.
In new court filings, Assistant U.S. Attorney Andrew Smith said the problem with the governor's legal arguments start with the fact that the federal government cannot be sued unless it waives its sovereign immunity. That has not happened here.
Smith acknowledged there is a procedure for those who challenge federal ownership: bring a suit under the Quiet Title Act. Only thing is, he told U.S. District Court Judge David Campbell, those lawsuits have to be filed within 12 years and must be preceded by a notice of claim. Neither of those occurred here.
But the real defect in Ducey's case, Smith said, is failing to recognize that President Theodore Roosevelt declared the 60-foot strip of land along the border to be federal property in 1907, five years before Arizona became a state.
Put another way, he said the land at issue -- land the United States acquired from Mexico through the Treaty of Guadalupe and, later, the Gadsden Purchase -- could not possibly belong to the state because the state did not exist. And Smith said acknowledgment of that federal ownership was a condition on Arizona being accepted into the Union.
And if there was any doubt about that, he said, Ducey need go no further than to consult the Arizona Constitution adopted in 1912.
"The people inhabiting this state do agree and declare that they forever disclaim all right and title to the unappropriated and ungranted public lands lying within the boundaries thereof,'' reads the constitutional provision.
All this comes because of Ducey's highly publicized decision to place a double-high stack of storage containers along the border.
It started in August with the governor ordering his Department of Emergency and Military Affairs to build nearly 3,820 feet of containers near Yuma on land controlled by the Bureau of Reclamation. Then he directed the agency to begin construction of another 10 miles of containers on Forest Service land in Cochise County.
Only when federal agencies accused him of trespass, Smith said, did Ducey go to court with his theories of why he has the power to put the containers on what has been known as the "Roosevelt Reservation.''
Smith told Campbell he should give no more credence to the governor's alternate theories of why, even if the federal government does own the land, the state should be able to enter it and erect the barrier.
Much of Ducey's claim is based on his theory that the state is being "invaded'' and the federal government is not living up to its legal obligation to offer protection. What that means, the governor is arguing, is the state is entitled to step up.
"Arizona is going to do the job that Joe Biden refuses to do -- secure the border in any way we can,'' the governor said in filing suit last month, referring to the president's decision shortly after taking office to halt construction of the border fence that his predecessor, Donald Trump, had started. "We're not backing down.''
And Brett Johnson, Ducey's lawyer, pointed out that the U.S. Constitution allows states, when "actually invaded or in such imminent danger as will not admit delay'' to "engage in war,'' without congressional authority. The order to his agency to close that gap, Johnson said, is based on that power.
Smith, however, said the governor is wrong on several fronts -- something he said Ducey should know because the state tried this theory before in litigation over SB 1070. That's the 2010 law which was designed to discourage people from entering and remaining in the United States.
That resulted in litigation over whether the state could have its own immigration laws. Arizona officials argued that the state had a right to step into this traditional federal role because Washington failed to protect Arizona from invasion.
But U.S. District Court Judge Susan Bolton ruled it is settled precedent that the term "invasion'' does not apply to a state's claim based on illegal immigration.
"The term 'engage in war' refers to hostilities between sovereigns,'' Smith told Campbell.
And he said even if Ducey were right -- that the state can use the constitutional power of self defense in immigration issues -- the governor's arguments still fail.
"That power could not extend to allow the governor to occupy and use federal lands in open contravention'' of constitutional clauses giving the federal government not only supremacy but also "virtually unlimited'' power over property owned by the United States.
Smith also is setting the stage for what is likely to be the next legal action assuming Campbell dismisses Ducey's lawsuit: requiring him to remove the storage containers.
"By trespassing and disturbing federal public lands without authorization, the governor and his agents are not only acting in conflict with federal law but are (ITALICS) violating (ROMAN) ... many other federal laws and regulations applicable to such activities,'' he said. "The governor's actions are unlawful and cannot stand.''
And Smith said there something else undermining Ducey's claim the land belongs to the state. He said if Congress wanted to give the land at issue to Arizona, it knew how to do it.
He pointed out that when Arizona became a state it got title from the federal government to more than 10 million acres of federal land specifically earmarked to be used for public purposes.
About 9.2 million acres remain, with the majority of that set aside for K-12 education. The state uses funds from the sale and lease of those properties to supplement state tax revenues for schools.
Everything else, Smith said "remained the property of the United States.''
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