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Judge blocks Trump from building border wall with emergency funds, including section in Yuma

A federal judge has blocked the Trump administration from constructing two border wall projects using up to $8.1 billion in money siphoned from the Defense Department, including a project near Yuma that was scheduled to begin construction this weekend. 

In a 56-page decision released Friday, U.S. District Judge Haywood S. Gilliam wrote that that the plaintiffs "have shown a likelihood of success," and issued an injunction immediately halting the White House's efforts to redirect military-designated funds to wall construction along the southwestern border, halting a plan to build 51 miles of fencing as early as Saturday. 

The "crux" of the case is that the White House's methods for funding the "border barrier construction are unlawful," Gilliam wrote.

“The position that when Congress declines the Executive’s request to appropriate funds, the Executive nonetheless may simply find a way to spend those funds 'without Congress' does not square with fundamental separation of powers principles dating back to the earliest days of our Republic," Gilliam wrote. 

The Sierra Club and the Southern Border Communities Coalition, represented by the American Civil Liberties Union sought the preliminary injunction arguing that President Donald Trump was violating the law by using emergency powers to secure border wall funds denied to him by Congress. 

Gilliam's decision blocks the government from starting two projects, "Yuma Sector Project 1" in Arizona, and "El Paso Project 1" in New Mexico. 

On April 26, DHS announced that it would replace about 7 miles of four-to-six-foot vehicle barriers in Yuma with a 30-foot border wall, starting at the Morelos Dam and following the Colorado River for around five and a half miles, and then going east about 2.5 miles. 

Other projects, including a plan to replace about 63 miles of border barriers with walls up to 30-feet high along three protected wilderness areas in Arizona were not included in Gilliam's decision, but the judge signaled that he could limit those projects in the future. 

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Dror Ladin, an ACLU attorney who argued the case, called Gilliam's decision a "win." 

"This order is a win for our system of checks and balances, the rule of law, and border communities. The court blocked all the wall projects currently slated for immediate construction," Ladin said. "If the administration begins illegally diverting additional military funds, we'll be back in court to block that as well."

"We applaud the court’s decision to protect our Constitution, communities, and the environment today," said Gloria Smith, managing attorney at the Sierra Club. "We've seen the damage that the ever-expanding border wall has inflicted on communities and the environment for decades. Walls divide neighborhoods, worsen dangerous flooding, destroy lands and wildlife, and waste resources that should instead be used on the infrastructure these communities truly need," she said.

"Yet again, the American people have had to look to our courts for a check on President Trump’s unlawful power grabs. The Sierra Club and our members are thrilled the courts put a rightful check on Trump’s abuse of emergency powers,” Smith said. 

TucsonSentinel.com requested a comment from DHS officials, but they had not replied by Friday night. 

Trump declared a national emergency in February following a painful 35-day partial shutdown of the government over border wall spending. As a compromise to end the stalemate, Congress agreed to set aside $1.375 billion to extend or replace barriers in Texas' Rio Grande Valley. However, weeks later, Trump declared he would carve more than $8 billion for the military's budget, including $3.6 billion from military construction funds, $2.5 billion from counter-drug funding at the Defense Department, and around $600 million from the Treasury Department's asset forfeiture fund. 

Just days after the Trump administration began outlining how it would use different pots of federal money to begin building, California and 19 other states filed suit, followed by a separate suit filed the Sierra Club. 

The lawsuit was supported by some members of the U.S. House of Representatives, who issued a friend of the court brief, arguing that the case "arises arises out defendants’ flagrant disregard for the bedrock constitutional principle" that guides appropriations of money. 

In the brief, members of the House argued that "notwithstanding this clear constitutional command," on the same day that Trump signed legislation that provided only $1.375 billion for border barriers, he announced that he would try to spend up to $8.1 billion. This decision to build a border wall in the absence of a valid appropriation usurps Congress’s authority under the Appropriations Clause." 

"Congress decidedly rejected President Trump’s request for $5 billion to build a border wall. Indeed, Congress’s rejection of President Trump’s request precipitated the longest Federal Government shutdown in history," they wrote. 

Further, the administration was "attempting to paper over its unconstitutional expenditure of funds," by using three funding sources that were not designed to used for border wall construction, they wrote. 

In his decision, Gilliam wrote that it was important for the court to make clear, "what this case is, and is not about." 

"The case is not about whether the challenged border barrier construction plan is wise or unwise. It is not about whether the plan is the right or wrong policy response to existing conditions at the southern border of the United States," he said. 'These policy questions are the subject of extensive, and often intense, differences of opinion, and this Court cannot and does not express any view as to them." 

"Instead, this case presents strictly legal questions regarding whether the proposed plan for funding border barrier construction exceeds the Executive Branch’s lawful authority under the Constitution and a number of statutes duly enacted by Congress," he said. 

"Assessing whether Defendants’ actions not only conform to the Framers’ contemplated division of powers among co-equal branches of government but also comply with the mandates of Congress set forth in previously un-construed statutes presents a Gordian knot of sorts," he said, adding that the federal courts’ duty "is to decide cases and controversies." 

"Rather than cut the proverbial knot, however, the Court aims to untie it—no small task given the number of overlapping legal issues. And at this stage, the Court then must further decide whether Plaintiffs have met the standard for obtaining the extraordinary remedy of a preliminary injunction pending resolution of the case on the merits," he wrote. 

"Congress’s 'absolute' control over federal expenditures—even when that control may frustrate the desires of the Executive Branch regarding initiatives it views as important—is not a bug in our constitutional system. It is a feature of that system, and an essential one," he wrote. 

Among the groups that criticized the plan is the Malpai Borderlands Group, a Douglas-based environmental group led by ranchers which has been working for 25 years to maintain and protect about 708,000 acres of private land. In a letter written by executive director Richard Winkler, his group "has been restoring and maintaining the natural processes that create and protect a healthy, unfragmented landscape to support a diverse, flourishing community of human, plant and animal life in our borderlands region," and the "proposed border wall in the San Bernardino Valley would "irreparably fragment this landscape and interfere with those natural processes."

"The abundance of wildlife in our area is a result of proactive wildlife management by landowners and partners through providing enhanced water sources and restoration of wildlife, and natural processes, like fire," Winkler said. "The connection of the mountains and grasslands of the Malpai borderlands to the Sierra Madre Occidental Mountains in Mexico provides crucial wildlife movement corridors that connect and enhance the abundance and diversity of wildlife throughout the region, the most well known being the jaguar, which was first photographed here in 1996." 

"A lighted 30-foot border wall will essentially urbanize our rural landscape. Every member of our group recognizes the need for security along the border in the Malpai Borderlands, but we also understand that a border wall is not the best means to achieve security in remote areas,"  Winkler said. 

"The declaration of a national emergency to justify the building of this expensive wall is an illegal farce. It does not square with local landowner’s observations, nor even with the statistics of the Douglas Border Patrol Station, which has observed a consistent decline in border apprehensions and drug smuggling over the last ten years," he said. For those who live in the landscape, they will see a 30-foot steel wall, "lit up with grid power all night." 

"This towering monument of expensive steel and concrete will be a daily reminder to those of us who live here, that our country’s leaders failed in figuring out a solution to the age-old process of migration," Winkler said. "The Malpai Borderlands Group demands that this border wall not be built." 

The decision comes on the heels of reports that the president himself is pressuring officials at the Army Corps of Engineers and DHS to award the contract for border wall construction to Fisher Industries, a North Dakota-based construction firm. 

In Feb. 2018, Tommy Fisher, the CEO of Fisher Industries made sure to give a right-wing news outlet an exclusive as he touted his border wall construction plan, and earlier this year, Fisher Industries hosted a demonstration of their wall-building at a site in Coolidge, Arizona about 100 miles north of the U.S.-Mexico border. 

In his decision, Gilliam wrote that a case management conference is set for June 5, 2019 at 2:00 p.m., during which parties should "be prepared to discuss a plan for expeditiously resolving this matter on the merits, whether through a bench trial, cross-motions for summary judgment, or other means."  

Dan Millis, a member of the Sierra Club's Grand Canyon Chapter Borderlands Program based in Tucso said that the "environmental and social impacts of these new barriers would be devastating."

"Endangered species like the Sonoran pronghorn, Mexican gray wolf, and jaguar would be harmed by these walls and some could disappear from the United States. Precious places such as Organ Pipe Cactus National Monument, the Cabeza Prieta National Wildlife Refuge, and Organ Mountains-Desert Peaks National Monument would be decimated by an enormous eyesore," Millis said. "Walls don’t solve problems. They cause flooding and sabotage wildlife protection efforts. We cannot allow Trump’s xenophobic, backward agenda to go any farther." 

"The damage will be irreversible," Millis said. 

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Paul Ingram/TucsonSentinel.com

The border wall already built west of Lukeville, Arizona along the Organ Pipe Cactus National Monument.

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