Judge denies request for preliminary injunction against construction of border wall

Rio Grande Guardian
September 3, 2008


U.S. District Judge Frank Montalvo has denied a request for a preliminary injunction against the construction of the border fence in El Paso County, says County Attorney José Rodríguez.


The request for a preliminary injunction sought to prevent the Department of Homeland Security (DHS) from constructing any fencing, walls, or other physical barriers along the U.S.-Mexico border in Texas, New Mexico, Arizona, and California, unless and until the Department of Homeland Security complies with a raft of laws waived by Homeland Security Secretary Michael Chertoff in April.


Rodríguez said he was disappointed the preliminary injunction was not granted.


“This case is not over yet. This lawsuit involves an unprecedented delegation of authority by the Congress to the executive branch, because it allows DHS Secretary Chertoff to disregard long-standing federal laws that provide protection and benefits to the public and the environment,” Rodríguez said.


“I expect the County’s lawyers will do everything they can to obtain a favorable ruling in the course of the litigation.”


In April, Chertoff announced that DHS was sidestepping 36 federal laws and regulations in an effort to complete 670 miles of the U.S.-Mexico border wall by year’s end. He said he had the right to do so under the terms of the REAL ID Act of 2005. Previously, Chertoff had used his waiver authority for two portions of border fence in Arizona and one portion in San Diego.


The request for a preliminary injunction was filed on June 23 by the County of El Paso, the City of El Paso, El Paso County Water Improvement District No. 1, the Ysleta del Sur Pueblo, Mark Clark, owner of Brownsville’s Galeria 409, and three South Texas environmental conservation groups, Frontera Audubon Society, Friends of the Wildlife Corridor, Friends of Laguna Atascosa National Wildlife Refuge, as part of their lawsuit against DHS.


The lawsuit challenged Chertoff's statutory authority to issue waivers of more than three dozen federal laws, as well as related state, local and tribal laws, to expedite the construction of a border fence.


In a statement issued Wednesday, Rodríguez said that among the reasons for denying the request, Montalvo stated that the plaintiffs failed to prove that the construction of the border barriers will irreparably injure the public if the injunction was not granted.


Montalvo further found that the plaintiffs did not prove that, by allowing DHS to issue the waivers against several federal laws, the U.S. Congress was unconstitutionally delegating its legislative powers to Chertoff, Rodríguez said.


Despite the order denying the request for a preliminary injunction, Rodríguez said, Montalvo did not rule on the merits of the lawsuit and the case remains pending. The attorneys representing the plaintiffs are considering various options, including a possible appeal to the U.S. Supreme Court, Rodríguez said.


The lawsuit won the backing of the No Border Wall coalition in the Rio Grande Valley. In an op-ed for the Guardian penned in June, coalition spokesman Scott Nicol said those who filed the lawsuit were right to challenge the constitutionality of the Real ID Act’s waiver provision.


“This is not just an academic question; these plaintiffs will be directly impacted by the suspension of these laws,” Nicol said. “The waiving of the American Indian Religious Freedom Act means that the wall can be built without consideration of the sites on the Rio Grande that are important to the religious practices of the Tigua Nation. The El Paso and Hudspeth County water districts are charged with providing their counties with drinking and irrigation water.”


Nicol said that not only did Chertoff waive the Clean Water Act and the Safe Drinking Water Act, but, “all federal, state, or other laws, regulations and legal requirements of, deriving from, or related to the subject of” the laws listed in the waiver. “Apparently, no laws related to water are in force, leaving water districts with no way of knowing what rules still apply,” Nicol said.


Jim Chapman, board president of the Frontera Audubon Society, said his group joined the lawsuit to in order to ask the court to declare section 102 of the Real ID Act unconstitutional and to prevent DHS from building walls, roads, or other infrastructure on the border that do not fully comply with all of the nation’s environmental laws.


“To instantly dissolve 96 years of environmental laws and protection with a mere wave of the hand is nothing short of monstrous,” Chapman said.


“If laws can be so easily swept aside on the border, the same precedent could be applied anywhere, from the Arctic National Wildlife Refuge to Yellowstone National Park. If our nation’s laws are optional, they aren’t really laws.”


As organizations dedicated to the preservation of South Texas’ remaining wildlife habitat, the Frontera Audubon Society, the Friends of the Wildlife Corridor, and the Friends of Laguna Atascosa National Wildlife Refuge assert that if environmental laws are waived, years of effort to protect species and restore critical habitat will be lost.


“Further habitat losses in the Valley, which serves as a vital stop over and feeding grounds for hundreds of species of migrating coastal shorebirds, inland waterfowl, and passerines, and nesting habitat for approximately 150 more species, will be catastrophic,” said Wayne Bartholomew, executive director of Frontera Audubon.


Bartholomew said that the fate of the Lower Rio Grande Valley National Wildlife Refuge (LRGVNWF) system is of particular concern to environmentalists.


Consisting of individual tracts of native habitat linked by the Rio Grande, the LRGVNWF creates a wildlife corridor, providing endangered species such as the ocelot and jaguarundi sufficient territory to find food, water, and mates. Migratory birds also rely on it to rest and refuel on their annual journeys, as well as for nesting.


Maps released by DHS show the border wall slicing through many refuge tracts, and cutting off others from the river. The wall will fragment habitat, block migratory pathways, deny animals access to fresh water, and isolate breeding populations of endangered ocelot and jagurandi.


“It's taken 30 years, $80 million, and back-breaking effort to create an 80,000 acre wildlife corridor along the last 250 miles of the Rio Grande. To put a fence or wall through that is insanity,” said Keith Hackland, president of the Friends of the Wildlife Corridor.


Shane Wilson, president of the Friends of Laguna Atascosa, agreed.


“Currently, there are only 80 to 100 wild ocelots remaining in the continental U.S., and they cannot hope to survive without the wildlife corridor and the protection of the Endangered Species Act,” Wilson said. “The border wall, as proposed, will ensure that future generations will never witness the spectacular beauty of seeing an ocelot in the wild.”


At the time the three South Texas environmental conservation groups announced they were joining the lawsuit Rodriguez said he was pleased, in part because he originally hails from Alamo. Alamo is the gateway to the Santa Ana National Wildlife Refuge, a 2,088 acre refuge established in 1943 for the protection of migratory birds.


Considered the ‘jewel’ of the refuge system, the thorn forest habitat is host or home to nearly 400 different types of birds and a myriad of other species, including the indigo snake, malachite butterfly, bobcat, coyote, armadillo, long-tailed weasel and Mexican ground squirrel and the endangered ocelot and jaguarondi.


“This is what it all boils down to. You have a federal government that appears to be hell bent on building this wall even if means disregarding long standing protections for the environment, endangered species, wildlife, economic well-being of the border communities, our historic landmarks, etc.,” Rodríguez told the Guardian soon after the lawsuit was filed.


“I just find no precedence for it. I think it is very important to call the government accountable when it disregards our rights. And I think this is what is happening here.”


Rodríguez said the lawsuit would seek to prove that Congress impermissibly delegated authority to the Homeland Security Secretary.


“In our view it is in derogation of the exclusive authority granted by the Constitution by the Congress. The Congress is the law-making authority under Article 1, Section 1, of the Constitution. All the laws in the United States are decided by the Congress,” Rodríguez said.


“In effect, what the Congress has done is given carte blanch to Secretary Chertoff to ignore all these federal, state and local laws in order to proceed with construction of the fence.”


Rodríguez said the waiver Chertoff announced on April 1 is much broader than the one used to speed up fence construction in Arizona and California.


“The waiver the Secretary issued for Texas is much broader. It allowed him to bypass laws that deal with the environment, historic preservation, with clean air, clean water, solid waste disposal, and the protection of the religious rights of Native Americans and access to their lands,” Rodríguez said.


“These are very important federal laws that have been on the books for several years. It’s a matter of insisting, on the part of border communities like El Paso that the federal government is not above the law, not even DHS or Secretary Chertoff.”


Rodríguez said that under prior precedence, the delegation of authority for the waiving of laws has been limited.


“There’s always been a right of judicial review so that we can determine whether the waiver exercise is within the standard set forth by the Congress and here, under this waiver authority, there is limited judicial review,” he said.


The REAL ID Act does allow for a challenge in federal district court but there are no rights of appeal to the federal courts of appeal. “The only other remedy you have is to petition for discretionary review by the United States Supreme Court,” Rodríguez said.


Rodríguez said he and others involved in the lawsuit also believe that the REAL ID Act violates the 10th Amendment to the Constitution. “This basically says that all the authority not exercised by the federal government resides with the States, that the States make whatever laws are necessary for the protection of the health, safety and welfare of the community that is not preempted by the federal government,” he said.


In April, Chertoff waived the following federal laws in order to speed up construction of the border wall:


The National Environmental Policy Act
The Endangered Species Act
The Federal Water Pollution Control Act (commonly referred to as the Clean Water Act)
The National Historic Preservation Act
The Migratory Bird Treaty Act
The Clean Air Act
The Archeological Resources Protection Act
The Safe Drinking Water Act
The Noise Control Act
The Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act
The Comprehensive Environmental Response, Compensation, and Liability Act
The Archaeological and Historic Preservation Act
The Antiquities Act
The Historic Sites, Buildings, and Antiquities Act
The Wild and Scenic Rivers Act
The Farmland Protection Policy Act
The Coastal Zone Management Act
The Wilderness Act
The Federal Land Policy and Management Act
The National Wildlife Refuge System Administration Act
The Fish and Wildlife Act of 1956
The Fish and Wildlife Coordination Act
The Administrative Procedure Act
The Otay Mountain Wilderness Act of 1999
Sections 102(29) and 103 of Title I of the California Desert Protection Act
The National Park Service Organic Act
The National Park Service General Authorities Act
Sections 401(7), 403, and 404 of the National Parks and Recreation Act of 1978
Sections 301(a)-(f) of the Arizona Desert Wilderness Act
The Rivers and Harbors Act of 1899
The Eagle Protection Act
The Native American Graves Protection and Repatriation Act
The American Indian Religious Freedom Act
The Religious Freedom Restoration Act
The National Forest Management Act of 1976
The Multiple Use and Sustained Yield Act of 1960