A federal magistrate is pushing forward a lawsuit aimed at halting new U.S.–Mexico border wall construction in southern Arizona, rejecting federal attorneys’ arguments that the ongoing government shutdown should pause the case.
Magistrate Judge James Marner ruled that the shutdown is no longer a valid reason to delay the legal challenge brought by the Center for Biological Diversity, which argues that construction is harming sensitive wildlife habitats in the San Rafael Valley.
Marner previously granted a brief pause, acknowledging that attorneys representing Homeland Security Secretary Kristi Noem cannot perform unpaid legal work during a shutdown. However, he emphasized that the lack of funding hasn’t stopped border contractors.
He pointed to a sworn declaration from Russell McSpadden, the group’s southwest conservation advocate, reporting that wall crews continue working through “ecologically sensitive” grasslands — including federally protected jaguar recovery areas.
McSpadden praised the ruling, saying:
“This is an encouraging step forward. It means 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 documented more than a quarter-mile of new steel barrier built since mid-September — months after the lawsuit was filed — and described scraped grasslands used as a staging area and “man camp.” He also reported what appeared to be a new gravel operation carved into habitat critical to endangered species like the jaguar.
The lawsuit argues that a 2005 change to federal immigration law unconstitutionally gave Homeland Security power to waive environmental laws at its discretion — enabling construction without environmental review.
Federal attorneys say the law allows Noem to:
“waive any legal requirements (that) such secretary, in the secretary’s sole discretion, determines necessary to ensure expeditious construction of the barriers and roads.”
The case seeks summary judgment requiring work to stop until those environmental rules are followed.
Marner said the government must now justify continuing construction while delaying legal arguments. He added that federal lawyers already had filing deadlines before the shutdown:
“Given this time frame, the court expects that much of the work necessary to prepare defendants’ reply is already complete.”
Marner wrote that it is DHS’s responsibility to prove a delay is legally necessary. In this case, he said the greater harm lies in letting construction continue uninterrupted.
He ordered attorneys to submit their legal briefs by Nov. 14, bringing urgency back to a case that could determine whether the border wall segment through this key wildlife corridor can continue.
The 27-mile stretch runs through a biologically rich region where mountain ranges meet desert plateaus — a natural passageway for species like:
Conservationists say walls could permanently sever the corridor connecting U.S. and Mexican wildlife populations.
The Biden administration has defended the barriers as necessary to address migration and security challenges — marking a major policy reversal that has angered environmental advocates.
✔ Government must file briefs by Nov. 14
✔ Court will review whether construction should be halted
✔ A ruling could come without a trial
For now, construction continues every day the case remains unresolved.
Originally reported by Howard Fischer, Capitol Media Services in AZ Capitol Times.
