PHOENIX — A federal magistrate has recommended that a judge dismiss efforts to stop construction of a new border wall in southern Arizona, even as environmental groups promise to continue challenging the project.
In a new report, James Marner concluded there is no legal basis for claims by the Center for Biological Diversity and CATalyst that Congress acted illegally in 2005 when it granted the Department of Homeland Security secretary authority to waive numerous environmental laws to expedite border wall construction. Marner noted that while the law is broad, it does not give the secretary “unfettered limits.”
“Congress clearly delineated the general policy of (the law) as deterrence of illegal crossings through construction of additional physical barriers to improve U.S. border protection,” Marner said, citing prior federal court rulings that upheld the secretary’s authority.
The report, however, is only a recommendation to U.S. District Court Judge Angela Martinez. Tala DiBenedetto, attorney for the environmental groups, said she intends to argue that the magistrate’s conclusions should be rejected.
“The legal argument is that the IIRIRA, which delegates the authority to the secretary of Homeland Security to waive any and all laws and regulations under the sun for border wall construction, is an unconstitutional delegation of authority to an unelected official,” DiBenedetto said.
Construction has continued during the ongoing litigation, with Secretary Kristi Noem approving a 27-mile stretch of the wall through the San Rafael Valley without completing standard environmental reviews. Opponents argue that 30-foot steel bollards in this corridor threaten wildlife migration, particularly jaguars and other species.
“No such knowledge on the secretary’s part is required,” Marner said, rejecting claims that the secretary must seek expert guidance before waiving laws.
Russ McSpadden, southwest conservation advocate for the Center for Biological Diversity, emphasized the ecological stakes. “This is truly one of the best jaguar movement corridors we have remaining in the United States,” he said, noting that jaguars, pronghorn, porcupines, bears, mountain lions, coatimundi, and javelina all traverse the area.
Time is not on the challengers’ side. Even if they convince Judge Martinez, options for review are limited. “In addition to providing this sweeping delegation authority, it also heavily constrains review,” DiBenedetto said. If Martinez rules against her clients, the only recourse may be the U.S. Supreme Court. No date has yet been set for arguments.
As the case unfolds, environmental groups remain determined to protect what they describe as one of the most critical wildlife corridors in the United States, while construction of the wall continues.
Originally reported by Howard Fischer, Capitol Media Services in AZ Capitol Times.
