By Howard Fischer
Capitol Media Services
PHOENIX -- Citing the government shutdown, a federal magistrate is postponing action to determine whether the construction of new walls along the southern border by the Department of Homeland Security is illegal.
In a new order Magistrate Judge James Marner acknowledged concerns by environmental groups that delaying the lawsuit while allowing construction to continue "would cause irreversible harm'' both to the organizations that sued as well as several imperiled species that would be affected by the new barrier.
But Marner said he also has to respect the arguments from the Department of Justice, which is representing Homeland Security Secretary Kristi Noem, that its lawyers are legally prohibited from working while they are not being paid.
There are exceptions, the magistrate said, including "emergencies involving the safety or human life or the protection of property.'' Marner said, though, that the law is clear: absent those conditions, federal attorneys are are prohibited from working, "even on a voluntary basis.''
"This court finds that under the current circumstances in this case, a stay is appropriate,'' he wrote.
What makes all this crucial is that work already has started on a 27-mile stretch through the grasslands of the San Rafael Valley. And conservation groups say the 30-foot steel bollards will interfere with the migration of jaguars and other animals.
More to the point, the federal shutdown is unlikely to slow construction which is being done not by federal workers but through a $393.5 million contract with Fisher Sand & Gravel Co., unaffected by the lack of a new federal budget.
That is significant as the lawsuit by the Arizona Center for Biological Diversity and CATalyst that the construction is illegal.
More to the point, the plaintiffs want a court order to halt the project unless and until it complies with various environmental laws, something that becomes more difficult to do -- and more difficult to undo -- the more of the wall that is in place.
This may not wind up being the only legal fight with the Trump administration and its desire to build more border walls.
On Frday, Homeland Security along with U.S. Customs and Border Protection announced they had awarded 10 contracts totaling $4.5 billion to expand a "Smart Wall'' system along the southwest border which includes barriers along with patrol roads, lighting, cameras, and detection systems. That list, the agencies said, includes $606 million for 23 miles of new secondary walls in the Tucson sector and another 66 miles of system features in Arizona.
The current lawsuit centers around a provision in the 1996 Immigration Reform and Immigrant Responsibility Act.
It authorizes Homeland Security to construct barriers and roads along the border. But attorneys for the Department of Justice say it allows Noem to "waive any legal requirements (that) such secretary, in the secretary's sole discretion, determines necessary to ensure expeditious construction of the barriers and roads.''
The lawsuit does not allege Noem broke the law. Instead, it contends that Congress acted illegally when it in 2005 it amended the 1996 law, delegating that authority to waive laws to the secretary.
Her attorneys dispute that contention, leading to the lawsuit that was filed in July.
Russ McSpadden of the Center for Biological Diversity said challengers what makes the delay of the unacceptable is the speed at which construction is continuing.
"A few weeks ago, they had gotten about 350 feet up,'' he said. "And then they hadn't done anything for a few weeks.''
And now?
"They've tripled that,'' McSpadden said. "So they're full steam ahead now.''
He said all that endangers what is "one of the last, best wildlife corridors in the heart of the sky island ecosystem,'' the valley bordered by the Patagonia and Huachuca mountains on the north and stretching far into Sonora.
"This is truly one of the best jaguar movement corridors we have remaining in the United States,'' McSpadden said, saying three jaguar have used this corridor -- and gone through where the fence is to be located -- since 2015.
And it's not just jaguars.
"Pronghorn also roam in this valley,'' McSpadden said. "Few people know this, but porcupines live in this valley, bears cross here, mountain lions, coatimundi, javelina, you name it, this is one of the most spectacular wildlife corridors left.''
Less clear is whether the magistrate's necessarily means that the case will sit idle -- and wall construction will continue -- no matter how long it takes for Congress to come up with a plan to fund the government and allow Noem's lawyers to go back to work.
Marner noted that the government asked for -- and he is granting -- a stay only "until Department of Justice attorneys are permitted to resume their usual civil litigation functions.'' And he said if the government is still shut down at the end of the month that Noem's attorneys must file a motion to keep the case on hold.
Yet Marner did not say whether or not he will grant a further stay at that time. McSpadden said that gives challengers a chance to once again present their arguments, though not necessarily to put the case back on the active calendar.
"We'll argue pretty hard that if the case is stayed, then the wall needs to be stayed as well,'' he said.
"We need to put all of this on pause,'' McSpadden said. "There's no reason that they should be able to get away with this, holding up our legal case while they just build full steam ahead.''
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