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No More Deaths volunteers found guilty for water drops in protected wilderness

Four No More Deaths volunteers, charged with federal misdemeanors after they left water and food for migrants crossing Southern Arizona's protected Cabeza Prieta National Wildlife Refuge, have been found guilty, U.S. District Court Judge Bernardo Velasco ruled late Friday.

In a court decision released late Friday, Velasco said that the four women — Natalie Hoffman, Oona Holcomb, Madeline Huse, and Zaachila Orozco-McCormick — violated federal laws, because "they did not get an access permit, they did not remain on designated roads, and they left water, food, and crates in the Refuge," he wrote.

"All of this, in addition to violating the law, erodes the national decision to maintain the Refuge in its pristine nature," Velasco said. They each face up to six months in prison and a fine of $500, and will be sentenced sometime after February 18, he said.

The case has major implications for the future of humanitarian aid for people crossing through Arizona's deserts, especially in the remote stretch of landscape known as the Growler Valley, which sets inside 800,000 acres of protected wilderness in the Cabeza Prieta National Wildlife Refuge. No More Deaths is among the local humanitarian groups that provides aid — including water stations in rugged areas far from populated areas — for border crossers who might otherwise be numbered among the dead in the desert.

The last time that federal officials tried to prosecute a No More Deaths volunteer was in 2008, when Dan Millis was convicted for littering after he left gallon-sized water bottles on trails in the Buenos Aires National Wildlife Refuge, another federal refuge managed by FWS.

In 2010, the 9th Circuit Court of Appeals overturned his conviction.

"This verdict challenges not only No More Deaths volunteers, but people of conscience throughout the country. If giving water to someone dying of thirst is illegal, what humanity is left in the law of this country?" said Catherine Gaffney, a longtime No More Deaths volunteer.

Five other volunteers are also facing their own misdemeanor charges, and their trials will begin on Feb. 26 and March 4.

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After a long-running détente, in 2016 federal officials increasingly began to interfere with No More Deaths. In December 2016, security guards banned volunteers from the Barry M. Goldwater bombing range and the adjacent Cabeza Prieta refuge. Then, during the summer of 2017, Border Patrol agents raided the permanent No More Deaths camp near Arivaca, Ariz., after setting up a temporary checkpoint nearby and conducting surveillance on the camp.

Then in August 2017, the four women were ejected from Cabeza Prieta. This was followed by the January 2018 arrest of Scott Warren, an Arizona State University professor and NMD volunteer. Warren has been charged with a felony after Border Patrol agents raided "the Barn" a privately-owned building in Ajo, regularly used as a staging point for volunteers who want to offer humanitarian aid in the harsh deserts surrounding the small Arizona town. Warren faces trial in May.

Prosecutors argued in court this week that the four women violated federal law when they drove a Dodge Ram pickup truck into the wilderness on an administrative road to Charlie Bell Well on Aug. 13, 2017, and left milk crates containing one-gallon jugs of water, along with cans of beans. A remote camera captured images of the Dodge truck as U.S. Federal and Wildlife Service officer Michael West intercepted the women after they returned from a water drop. West ordered the volunteers to head back out of the wilderness, and they headed back, he collected the supplies they left.

Hoffman was charged with operating a motor vehicle in a wilderness area, and entering a national refuge without a permit, while Holcomb, Huse, and Orozco-McCormick were charged with entering without a permit and abandonment of property, each a class "B" misdemeanor.

While prosecutors often have the burden to prove that the defendants committed the crimes, in this case, the defendants argued that federal officials are selectively prosecuting the volunteers, that they were unaware that the could be charged with a crime by entering the refuge, and that their prosecution violates the Religious Freedom Restoration Act, a 1993 law that tries to balance the burden of a federal law against a person's exercise of religion.

Velasco rejected this "Antigone" defense, writing that while the defendants may have believed that they were "acting in accordance with higher law.... the Defendants have failed to establish the facts necessary to support their asserted affirmative defenses," he said. 

Late Thursday afternoon, Nathaniel Walters, assistant U.S. Attorney, made his closing arguments, saying said the case was about a "choice" the women had made. "They made a choice to violate the law, and they thought that their feelings override federal law."

Walters said that the four women intentionally ignored signs at Charlie Bell Pass that they could not drive on the administrative road, and that they had avoided getting a permit, and there was clear evidence that they had "abandoned, discarded or otherwise left items" in the refuge. And, he attacked the defense's case, saying that they had failed to show that prosecutors had selectively prosecuted the defendants, and that they did not prove that they had a sincerely religiously-held belief that would be burdened by following federal law on the refuge. Instead, Walters called their beliefs "political and philosophical" and essentially, an extension of the golden rule.

"Helping people in the desert does not require drive a truck into the wilderness or forgoing the legal requirement to get a permit," Walters said, later calling the water drops a way to help people "evade apprehension and skirt around deportations" and that they "encourage illegal activity" through the refuge. Instead, people should be using the beacons, which are the "preferred way" to save people.

He also attacked their defense that such work was necessary, adding simply that testimony that they were in the refuge after one man went missing. Their actions "were out of necessity, by of choice," Walters said.

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He also tore into the idea that during a July 6 conference call, an assistant U.S. attorney told No More Deaths and FWS, that federal prosecutors were "uninterested" in pursuing No More Deaths, even if charges were referred to them. "The defense has not proven that someone with authority made this statement to bind the federal government."

"This was not a clear and unambiguous statement that they have permission to break the law," he said, and he said that this defense "comes perilously close to the ignorance defense."

Louis Fidel closed for the defense on Thursday, arguing that in Cabeza Prieta there was a "trail of death" that flowed along the west face of the Growler Mountains. Showing a map of the corridor, spattered with red dots, each marking where human remains were found in Cabeza Prieta, Fidel said: "This map is shocking.

Fidel said that the women were "compelled to act."

"What do you do when people are dying in droves from an agonizing death," he asked. He said that the beacons were hard to get to, especially the one at Charlie Bell Pass, which sits on a steep hill. "The beacons are a gesture, a nice gesture, but they aren't enough," he said.

He also argued that the beacons didn't work, showing that according to No More Deaths' data, the number of remains found in 2012 was 4, but in 2017, the group found remains 32 times. This happened even as the number of deaths in the Tucson Sector dropped from 165 to 128. And, he said that Charlie Bell Well, where the group dropped of much of their supplies was known as a place to get water, but that the water was established for animals and was likely dangerous for people to drink. "We know how devastating it is for people to drink tainted water," he said.

Fidel said that government's actions were burdensome to the volunteers under RFRA that that they were acting out of "a spiritual calling informed by their beliefs," he said. "This act of helping strangers is a fundamentally religious act."

Fidel also argued that this was selective prosecution, because for months, No More Deaths told the FWS that they were doing water drops in Cabeza Prieta, but no one was cited, and he referred to notes, written by Yurie Aitken, a FWS employee, that said that the Justice Department was part of the meeting and during this, a federal prosecutor said that "Tickets are dismissed/not prosecuted if the person shows up to court" Aitken wrote. "DOJ does not appear to want to prosecute violations regarding this group," Aitken wrote.

This combined with the language of the permit, which only states that people may face criminal charges if they fly a drone on the refuge, shows that the four women could not assume that they were subject to criminal charges, Fidel said.

During this Velasco asked, "Does this speak for the court?" Fidel responded by saying that no, the prosecutor did not speak for the court. "So nobody speaks for the court?" "Agreed. Without question" said Fidel.

He added that the notion of harm to the refuge was limited because FWS officials use trucks, tankers, and helicopters to place water, including cisterns that can hold 11,000 gallons, for animals, "but no water for people."

After Fidel was finished, Walters returned, and in what may be the most pointed critique of No More Deaths, he said that the water drops give border crossers "the false hope that if they drink water or eat some beans, they will survive." The beacons allow people to surrender, he said.

Prosecutors brought only three witnesses to testify against the women, including West, along with Brian Krukoski, another Fish and Wildlife Service officer, and as a rebuttal witness, Juliet Fernandez, the refuge supervisor for Arizona and New Mexico.

Fernandez said Thursday that the mission of FWS is to "preserve, protect, and enhance" the refuge by keeping almost 93 percent of it closed to the public. Along with protecting the area as it was when Arizona agreed to make it a refuge in 1990, FWS is responsible for protecting around 200 individual pronghorn antelope, an endangered species, and the bighorn sheep. Fernandez said that the agency had tried to implement life saving measures on the refuge, allowing Humane Borders to set up a permanent water station along the Camino Del Diablo, or the Devil's Highway, and by setting up 10 rescue beacons that are managed by the U.S. Border Patrol, which "provide immediate relief."

The beacons, Fernandez said, "are the greatest opportunity for life saving." During cross-examination, Fernandez said she was unaware of how many people had died attempting to cross Cabeza Prieta, saying at one point that such information was "not within my job responsibility."

Overall the agency maintains 85 rescue beacons across the desert southwest, including 32 in the Tucson Sector, which covers Cabeza Prieta.

Though, there remains questions about the effectiveness of the beacons due to the agency's willingness to respond. 

 While the Tucson Sector said that 222 people were rescued in the fiscal year of 2015, data from the Yuma Sector showed that out of 1,161 activations, only two people were rescued. Tucson Sector did not report how many times their beacons were activated. The next year, Tucson Sector reported that 1,409 people were rescued, but the agency did not report the number of beacon activations. The agency has not published a report on searches and rescues for the next two years

Correction: An earlier version of this report included an incorrect sentencing date.

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2 comments on this story

Jan 21, 2019, 8:04 pm
-0 +1

Actually, it seems like they are guilty of treating people like human beings. And we wonder how 7 million people died in concentration camps?

Jan 20, 2019, 10:48 am
-3 +0

Seems they were admittedly aiding and abetting illegal immigration.  Is that a felony?

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Paul Ingram/TucsonSentinel.com

U.S. Fish and Wildlife officer Brian Krukoski walks toward a truck driven by No More Deaths volunteers at Charlie Bell Pass in August 2017.


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