Judge rules border wall lawsuit can move forward during gov’t shutdown

A federal judge moved forward a lawsuit over border wall construction in Arizona’s San Rafael Valley on Wednesday after environmentalists showed contractors are using explosives in “ecologically sensitive areas” in the Coronado National Forest to quarry for rock.

In his 4-page decision, U.S. Magistrate Judge James Marner ordered Justice Department officials to file their response, putting the case back into gear after it was stayed due to the shutdown of the federal government.

Russ McSpadden, southwest conservation advocate for the Center for
the Biological Diversity, told the Tucson Sentinel on Thursday that Marner’s
ruling was an “encouraging step forward.” 

The Department of Homeland Security “cannot use the shutdown as a
pretext to continue walling off one of the most vital wildlife corridors
in the Sky Islands while our case sits idle,” McSpadden said.

As it became clear the Trump administration was planning to build a
27-mile long border wall across the San Rafael Valley in Southern
Arizona, the Tucson nonprofit group sued to block the project.

The new
construction will create the “longest unbroken stretch of border wall”
in Arizona, spanning 100 miles and effectively closing the ability of
the northern jaguar, along with ocelots and dozens of other species, to
move through the state’s Sky Islands—a  region known for its immense and
unique biodiversity. About 250 feet of border wall panels were installed by Sept. 16.

The
case ground through the federal court system, but as the federal
shutdown loomed in early October, Justice Department attorneys asked to
stay the case, telling the court they are “prohibited from working, even
on a voluntary basis” during a lapse in federal funding.

On Oct. 9, Marner accepted this argument
despite objections from Anchun Jean Su, an attorney for the
environmental group. In her filings, Su noted the
construction was continuing even while the federal government is
nominally closed, and she argued the department can order staff
attorneys to work during a shutdown.

The shutdown has continued for
37 days—making it the longest in history—and during that time
contractors with Fisher Sand & Gravel have forged ahead on the
project. Fisher Sand & Gravel was awarded a $334 million contract to build the wall, funded by a 2021 congressional appropriation.

The border in the San Rafael Valley is currently marked by a mix of Normandy-style vehicle barriers, barbed wire and screen fencing, however, the Trump administration has pushed hard to close the entire Arizona-Mexico border, even as apprehensions have effectively collapsed, and there are few signs of people attempting to illegally cross through the valley.

On Wednesday, Su filed a new objection telling the court that 30 days after the court granted the Justice Department a stay,
contractors with Fisher Sand & Gravel have forged ahead on border
wall construction, installing new panels and carving into the rock near
Coronado National Memorial to quarry for materials to make concrete.

“During
that time, new border construction activities appear to have taken
place in ecologically important species habitat in the San Rafael Valley
causing Plaintiffs ongoing irreversible harm,” Su wrote.

As part of her filing, Su included a statement from McSpadden who told the court the wall had been extended while the case was moribund and now spans nearly a quarter of a mile.  Contractors also had “scraped bare” two large staging yards in the Coronado National Forest, as part of a larger construction effort that also includes a “man camp” full of trailers, generators, and a concrete facility.

McSpadden told  the court that on Friday, Oct. 31, he spotted three large dump trucks removing debris blasted out of the Huachuca Mountains within the Coronado National Forest, a little under a mile from Coronado Overlook. McSpadden said a resident in the area, and a on-site security guard, said Fisher Sand & Gravel was using explosives to quarry the protected mountain range to create concrete for the border wall.

The Tucson Sentinel observed the effort on the same day, spotting a large carve-out in the mountain. Contractors also vastly expanded the narrow border road, in some spots rerouting the entire road with new earthworks, and tearing through vegetation including several large trees.

“From my vantage point, it appeared that the construction crew had created a quarry on the slopes of the mountain, within federally designated jaguar critical habitat,” McSpadden told the court.

Contractors are tearing into critical habitat for several species, McSpadden told the Tucson Sentinel on Thursday. This includes not only the northern jaguar, but also Mexican spotted owls and Beardless Chinchweed—a small perennial plant with yellow flowers protected under the Endangered Species Act.

During the pause in the case, “construction has accelerated through some of the most
ecologically sensitive lands in Arizona—including areas of designated or
proposed critical habitat for jaguars and ocelots within and adjacent
to the Coronado National Forest,” he said.

“Fisher Sand &
Gravel crews have
continued grading, trenching, and erecting new wall sections through
these irreplaceable grasslands and wildlife corridors,” McSpadden said.

Su told the court the stay should be lifted because the Justice Department had failed to “demonstrate why a further stay of this case is necessary or appropriate, particularly since  this court and other courts have directed DOJ staff to continue to work during the congressional appropriations lapse.”

She added the Center for Biological Diversity will continue to be harmed by a stay while federal government officials “continue to engage in the underlying harmful activities at issue in this litigation.

Marner agreed and ordered the Justice Department to reply before November 14.