By Howard Fischer
Capitol Media Services
PHOENIX -- The federal government is finally ready to drop its lawsuit against the state over the storage containers it contends were erected illegally last year on Forest Service land by then-Gov. Doug Ducey.
But it's going to cost Arizona taxpayers another $2.1 million to put this all behind them.
That's on top of the $95 million the state paid to AshBritt Management & Logistics to install the ersatz border barrier in the first place. And it doesn't include another nearly $66.6 million, also of taxpayer dollars, to tear it down, transport the containers to Tucson and start restoring the site to the way it was before the controversial barrier went up.
So why another $2.1 million?
That's what the Forest Service contends it actually will take to fully remediate the damage done by the containers in the first place. And the deal filed in federal court and inked by the attorneys for all the parties, spells out that once the bill is paid the case will be dismissed.
Christian Slater, press aide to current Gov. Katie Hobbs, said Monday that has now happened. All that awaits is a final judicial order.
There was no immediate response from the former governor.
But Dan Scarpinato, who was Ducey's chief of staff when the state paid to buy the containers, erect the barriers and then take them down, said his former boss stands by the project.
"The feds have been so wildly out of touch regarding this crisis that something needed to be done to amplify security and get the attention of the administration,'' he said. Scarpinato said installing the wall of double-high containers resulted in the Biden administration finally agreeing to close gaps in the existing wall "which otherwise would never have happened.''
Ducey's successor, however, doesn't see it that way.
"We are glad to be one step closer to ending this political stunt that wasted hundreds of millions of taxpayer dollars,'' said Slater.
He noted the construction costs came out of a $335 million Arizona Border Security Fund approved by lawmakers in 2022 as part of the state budget. Those dollars had strings, including requirements they be spent solely to erect a barrier.
By contrast, the budget signed earlier this year by Hobbs instead allows her to use border cash to provide direct aid to affected communities. And Slater said the new governor has done just that, providing grants for additional staff for law enforcement, technology and supplies.
The deal marks the end of what had been a highly publicized move by Ducey to close gaps in the reinforced barrier that was started by Donald Trump and canceled by Joe Biden his first day in office.
Ducey arranged to purchase storage containers and installed them in a 10-mile gap in Cochise County in the Coronado National Forest. A separate wall of containers was installed along 3,820 feet near Yuma.
The Department of Justice called the move illegal, citing a 116-year-old president declaration that gives the federal government exclusive control of a 60-foot swatch along the Arizona-Mexico border -- precisely where Ducey was placing the containers.
Ducey responded by filing suit, seeking a declaration that President Theodore Roosevelt had not legal right to simply declare all land along the border to be the property of the federal government. The feds responded in kind with their own lawsuit accusing the state of trespass.
Both cases were consolidated.
The change in administration in Arizona changed everything.
Even before taking office, Hobbs announced she was going to halt further work on the wall of storage containers.
"It's not our land to put things on,'' she said. "It's a political stunt.''
All that became moot when Ducey, in his last days in office, agreed to remove the shipping containers, declaring they had served their purpose in spurring the Biden administration to action.
But it also came as a federal judge was considering the request by the Department of Justice to force Arizona to remove the hundreds of double-stacked containers or allow the feds to remove the items and then bill the state for the costs. And having Ducey announce the removal before leaving office denied that opportunity to his successor.
Even with the containers now gone from the border -- and being sold off for less than the state paid -- that still left the question of restoring the property to the way it was before.
Documents filed by the two sides last week with U.S. District Court Judge David Campbell said that the state, in removing the containers, "conducted extensive remediation efforts on the Forest Service property.'' But the agreement said more needs to be done.
So the Department of Justice and the state entered into a deal where the Forest Service would submit an advance bill to the state "and Arizona paying that bill, which will allow outstanding remediation work to be completed.''
That bill was sent to the state's Department of Emergency and Military Affairs -- the agency which was tasked with building the barrier and then tearing it down -- last week for $2,126,030.
Still, there are things left to do. And the biggest is finding a home for the approximately 2,200 shipping containers that are now being stored.
State officials have given first dibs to government agencies and nonprofits that work with the government. But Megan Rose, spokeswoman for the state Department of Administration, said at this point just 142 of them have been sold off.
The rest, she said, will be offered to the public beginning Oct. 1, with price depending on size and condition.
For $2,000 you can get a 40-foot Grade C container, listed as having "extensive corrosion with a multitude of dents'' with interior markings and scratches.
Too dear? A Grade D container is $1,500, with extensive corrosion and holes as well as major damage.
There also are a number of 20-foot containers, at $1,000 for Grade C and $500 for Grade D.
Rose said that transportation costs will be added to the final bill, as cash and carry is not an option.
"We're making sure that everyone's safe,'' she said. "We don't want somebody to jury-rig something and then end up on the freeway and then have a problem.''
Rose said the state already has been in contact with a trucking firm that will do the job, with the ultimate price depending on the distance involved.
The containers removed from Cochise County are at the state prison in Tucson; those taken off the border at Yuma are at the state prison there.
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