Arizona Daily Star
October 24, 2013
by Howard Fischer
PHOENIX — Federal officials are legally entitled to be negligent in fencing the border without worrying about getting sued over the damages their actions cause, a federal appeals court has ruled.
The 9th U.S. Circuit Court of Appeals rejected arguments by the owners of Gringo Pass in Lukeville that the Department of Homeland Security owes them $6 million in damages from flooding they say was caused by the new border fence.
In their unsigned ruling, the judges sidestepped the entire question of whether the fence was improperly designed or constructed. Instead, they concluded that federal law gives Homeland Security broad discretion in how it meets its primary goals of securing the border.
And that, they said, ultimately makes the federal government immune from suit.
Attorney Joel Herz, who represents the plaintiffs, would not comment about the ruling or whether further appeals are contemplated. But this is the second court to conclude that the owners are out of luck, at least as far as getting legal redress.
According to court records, Gringo Pass has operated a grocery store and gas station since 1966 on land adjacent to the international border, west of the port of entry and east of Headquarters Wash.
A 1996 federal law requires Homeland Security to take certain actions to secure the Southwest border, including building at least 700 miles of fence. That law also allows the agency chief to waive any legal requirements determined necessary to ensure the “expeditious construction of barriers and roads.’’
In seeking bids, the Army Corps of Engineers said it wanted to keep individuals from crossing the border. It also included provisions to permit water and debris to flow freely through the cross-border washes.
The 5.2-mile stretch of fence was completed in 2008.
After a storm that summer, the National Park Service, which operates the nearby Organ Pipe National Monument, found that the fence had interrupted the flow of the wash.
The owners of Gringo Pass also reported damage and filed suit, a claim that was later amended to include subsequent problems following a 2010 storm.
But the company did not get a chance to even present its case to the jury.
U.S. District Court Judge David Bury said lawsuits for negligence are allowed against the federal government. But the judge also noted there is something called a “discretionary function exception’’ to those laws.
“When the discretionary function exception is applicable, it must be applied, even if, through application, it becomes a shield for carelessness and poor judgment,’’ Bury wrote. And he said that protects federal employees from suit “even if, in hindsight, it appears that they should have exercised their discretion differently.’’
And Bury said that, in this case, Homeland Security was entitled to that protection. He said the agency was specifically required to exercise its judgment to design, implement and maintain the fence.
Attorneys for Gringo Pass argued that Homeland Security violated environmental standards by not removing debris from the fence. They also said the design was not in conformity with standards for flooding by the United States International Boundary Commission.
But Bury said those issues are irrelevant, as neither represents federal law or policy that mandated the design or construction of the fence.