Rio Grande Guardian
September 13, 2008
EL PASO, September 13 - El Paso County Attorney José Rodríguez hopes an appeal is lodged after a judge on Thursday dismissed a lawsuit that sought to stop construction of the border fence.
“The law firm Mayer Brown LLP of Washington, D.C., who is handling the litigation, is already working on the appeal, which the County Attorney will encourage El Paso Commissioner’s Court to join,” Rodríguez’s office said, in a statement issued late Friday.
Rodríguez, a leading member of the Texas Border Coalition, said plaintiffs have 90 days to file an appeal with the U.S. Supreme Court.
The lawsuit was filed on June 23, 2008, by El Paso County, the City of El Paso, the El Paso County Water Improvement District No. 1, the Ysleta del Sur Pueblo Native American Indian tribe, and Mark Clark, owner of Brownsville’s Galeria 409.
Later, three South Texas environmental conservation groups, Frontera Audubon Society, Friends of the Wildlife Corridor, Friends of Laguna Atascosa National Wildlife Refuge, joined the lawsuit.
The lawsuit challenged Homeland Security Secretary Michael 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.
But, in a blow to border wall opponents, U.S. District Judge Frank Montalvo granted the Department of Homeland Security’s motion to dismiss the lawsuit based on the merits of the case.
In his ruling, Montalvo held that the waivers used by Chertoff to expedite the construction of the border fence were constitutional because “…Congress constitutionally delegated its authority in the Waiver Legislation.”
Montalvo further ruled that the Waiver legislation did not violate the 10th amendment because the waivers were issued with the intent to “preempt state and local laws, which would interfere with Congress’s objective to expeditiously construct the border fence.”
Earlier this month, Montalvo denied a request for a request for a preliminary injunction against the construction of the border fence in El Paso County. Rodríguez was unavailable for comment on Thursday’s ruling by Montalvo.
When the request for a preliminary injunction was denied, Rodríguez said he disappointed. “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 at the time.
In April, Chertoff announced that DHS was sidestepping 36 federal laws and regulations, including the Endangered Species Act, the Migratory Bird Treaty Act, the National Wildlife Refuge System Administration Act, and the National Environmental Policy Act, in an effort to complete 670 miles of the U.S.-Mexico border wall by year’s end.
Chertoff 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.
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.”
Wayne Bartholomew, executive director of Frontera Audubon, said that the fate of the Lower Rio Grande Valley National Wildlife Refuge system is of particular concern to environmentalists.
“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,” Bartholomew said.
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.”
Earlier this week, Customs and Border Protection Commissioner Ralph Basham told Congress that his agency needs an extra $400 million in order to build the 370 miles of border fencing it has committed to. About 70 miles of fencing is slated for the Texas-Mexico border.
Basham blamed the higher cost of fuel and steel and a shortage of labor. He said he could not guarantee that the fencing would be constructed by the end of President Bush’s term in office.
In a statement, Texas Border Coalition Chairman Chad Foster urged Congress to reject any request by the Bush Administration for an additional $400 million. He called the $50 billion border fence project “wasteful.”