By Howard Fischer
Capitol Media Services
PHOENIX -- The Biden administration is asking a federal judge to let it remove the hundreds of double-stacked storage containers Arizona Gov. Doug Ducey has placed along the border and then bill the state for the costs.
In legal papers filed Wednesday, the Department of Justice said the state, under an executive order from the governor, is occupying lands owned by the federal government without obtaining required permits or authorization. Those containers, the lawsuit says, "damage federal lands, threaten public safety, and impede the ability of federal agencies and officials, including law enforcement personnel, to perform their official duties.''
But that's only part of the problem.
The lawsuit says the containers actually compromise law enforcement, blocking the ability of officers to see threats on the other side.
"The shipping containers can feasibly be entered on the ends or by cutting access points into the containers, allowing for the concealment of individuals, weapons, or contraband, effectively creating a fortified bunker that would post a grave threat to unsuspecting Forest Service personnel and the public,'' wrote Assistant Attorney General Andrew Smith.
And all that, Smith said, is not only dangerous but "inconsistent'' with the decision in by President Theodore Roosevelt in 1907 -- before Arizona even became a state -- to declare a 60-foot wide strip along the border the property of the federal government to keep the area "free from obstruction as a protection against the smuggling of goods between the United States and Mexico.''
Smith said the state has been told it is trespassing -- but to no avail.
"Not only has Arizona refused to halt its trespasses and remove the shipping containers from federal lands, but it has indicated that it will continue to trespass on federal lands and install additional shipping containers,'' he told U.S. District Court Judge Susan Brnovich.
So now he wants a order to halt ongoing installation, require the removal of existing containers and compensation to repair the damages to the environment.
Specifically, Smith said that, in installing the shipping containers on National Forest lands in Cochise County, the state had widened roads and cleared lands for staging areas.
"In doing so, Arizona has cut down or removed scores of trees, clogged drainages, and degraded the habitat of species listed under the Endangered Species Act,'' he told the judge. Smith also said the containers are blocking about 30 ephemeral streams which interrupt natural drainage patters, erode soil and damage vegetation and forage.
He also said the lands are now being "occupied by armed security guards,'' were hired by the contractor doing the storage container installation for the state, interfering with the ability of the Forest Service to carry out its duties.
There was no immediate response from the governor to the new legal action.
Instead, Ducey press aide C.J. Karamargin cited a letter his boss sent Tuesday to the Department of Justice urging them not to sue. In that letter, the governor rejected any contention that the containers, filling a 3,820-foot gap near Yuma and a nearly 10-mile wall of them going up south of Sierra Vista, harm public safety and the environment.
"The number one public safety risk and environmental harm has come from inaction by the federal government to secure our border,'' the Republican governor wrote, repeating claims he has made since Biden, on his first days in office in 2021, halted further work on a wall being built by the Trump administration.
"When the federal government abruptly halted border wall construction, our forests and public lands in Arizona quickly became strewn with abandoned clothing and property, and an ever-increasing number of migrants who continue to flow into the state,'' Ducey wrote. "This influx has resulted in fields of agricultural produce being contaminated, hospitals overflowing and U.S. citizens not being able to enjoy their homes or property due to trespassers.''
In that letter, Ducey also said that the Department of Homeland Security has been making promises, going back a year, that it would fill gaps that remain in the border wall after construction stopped.
He said that efforts since then to get specifics have been unsuccessful. And that, the governor said, left the state with no real choice to begin installing the storage containers.
"Arizona's border barrier was always intended to be a temporary solution until the federal government erects a permanent solution,'' Ducey told federal officials.
In fact, he noted, construction has been halted. He did not say in his letter, however, that was not by choice of the state but because protesters have put themselves in the path of the wall, blocking the construction equipment.
"Arizona agencies and contractors stand ready to assist in the removal of the barriers,'' the governor wrote. "But the federal government owes it to Arizonans and all Americans to release a timeline on when construction will begin and details about how it will secure the border while construction is underway.''
The governor also disputes the claim that the containers interfere with the ability of federal agencies to do their jobs. He contends that both federal and local law enforcement officers have "lauded the installation of the temporary barrier.''
"John Moldin, chief of the Border Patrol's Tucson Sector, explained that closing these gaps is a helpful strategy because 'if Yuma has 10 gaps and people were crossing all 10 gaps, it's much more difficult for us to deal with than if Yuma has one or two gaps and the majority of traffic is crossing through those gaps,' '' Ducey said.
The lawsuit filed Wednesday does not address any of that.
Instead, Smith told Brnovich it comes down to a simple question of law: The property is owned by the federal government and the state is trespassing despite being told the actions are illegal.
Ducey, for his part, is not conceding that question of ownership.
In October he asked a different federal judge to rule that President Roosevelt had no legal right to declare that strip of land, known as the "Roosevelt Reservation,'' to be the property of the federal government.
"Article II of the U.S. Constitution does not explicitly provide for the president to exercise his executive power to secure land or property without congressional approval,'' wrote Brett Johnson, a private attorney who Ducey has repeatedly hired in his legal battles with Washington. And Johnson said nothing changes simply because Roosevelt declared his act to be for the benefit of "public welfare.''
"Accordingly, the Roosevelt Reservation was outside of President Roosevelt's authority at issue, and as such is unconstitutional as a matter of law and has no force or effect,'' the lawsuit charges. More to the point, Johnson said the claim "conflicts with the state's sovereignty of that land.''
Ownership aside, Johnson contends that Ducey has a constitutional right to protect the state from what amounts to an "invasion,'' allowing him to "take immediate temporary steps ... to stem the imminent danger of criminal and humanitarian crises related to the Arizona border.''
Federal officials are likely to get at least part of what they want next month when Katie Hobbs becomes governor.
She has told Capitol Media Services she will halt further work, saying the land does not belong to the state and calling Ducey's actions "a political stunt'' and "a waste of taxpayer dollars.''
But Hobbs said she has made no decision on removing the containers already there.
No hearing has been in either that dispute or the new lawsuit.
