No More Deaths volunteer testifes leaving water for migrants is a 'sacred act'

The barren desert land where migrants have suffered and died, often alone under “excruciating” circumstances is “sacred” and leaving water there is an act of faith, a volunteer for No More Deaths testified as his trial began Monday.

Scott Daniel Warren, 36, is the last of nine volunteers with the Tucson-based humanitarian aid organization facing misdemeanor charges for leaving water, food, clothing, and medicine in the desert in the 860,000-acre Cabeza Prieta National Wildlife Refuge, near Ajo, a small Arizona town west of Tucson.

Warren faces two misdemeanor charges stemming from an incident in June 2017, when he and a dozen other people entered the refuge to leave humanitarian supplies. Warren was charged with operating a motor vehicle in a wilderness area because he drove a white Dodge Ram pickup along an administrative road closed to the public, and for abandonment of property because he and the other members of his group left one-gallon plastic water bottles, cans of beans, blankets, and other supplies near Charlie Bell Well, a remote water station established by ranchers that is now resupplied periodically for animals.

Warren also faces felony charges for harboring after he was arrested on Jan. 17, 2018, at the "Barn," a privately owned building in Ajo, regularly used as a staging point for volunteers.

In January, four volunteers cited for a separate incident in Cabeza Prieta in August that same year, were convicted of entering the refuge without a permit and abanoment of property. One volunteer was also convicted of operating a motor vehicle in a wilderness area, when she drove a No More Deaths truck along that same road. In March, they were sentenced to unsupervised probation and a fine of $250.

A month later four other volunteers pleaded guilty to a civil infraction of entering the wildlife refuge without a permit, and agreed to a fine of $280. The group argued that they entered the refuge in search of three people reporting missing that week.

On Monday, Warren testified that his actions that day were part of a sincerely-held religious belief that all life is sacred, and that he was “compelled” to provide aid to migrants, as well as search for their remains, as a volunteer with several aid organizations, including No More Deaths, which operates as a ministry of the Unitarian Universalist Church of Tucson.

Warren said his “motivation to act” comes from “a deep sense, and relationship” to the desert that surrounds Ajo, Ariz., and that because dozens of people have suffered and died in that desert, their spirts “continue to dwell in that place.”

In 2017, the remains of 48 people were discovered in the Cabeza Prieta wilderness corridor. This includes the skeletal remains of Dennis Martinez Nunes, found a day earlier just under four miles northwest of the administrative road that slips along Charlie Bell Pass Road from the edges of Ajo, Arizona into the Growler Valley itself.

Overall, the remains of 271 people have been found from 2001 to 2019 in the corridor that runs roughly from Lukeville, Arizona to Interstate 8.

Warren testified that since he moved to Ajo in 2013, he has helped recover human remains at least 18 times.

By putting water out for migrants, and by “bearing witness” by finding remains, Warren said that he makes a “connection,” and this makes a person’s soul live on in the place.”

“When someone dies in the desert—in Cabeza Prieta, the place that I know—it’s as if they remain in an in-between status, until they can be witnessed,” he said.

Warren tesitfied that when he finds human remains, he completes a ritual. He faces the remains and offers a “silent acknowledgement,” and then turns away.

“I kneel down and pick up two handfuls of dirt, or rocks, of whatever kind of soil it is,” he said. “I’ll hold it in my hands and mash it together. In my mind, that’s the act of holding that ground, holding that place in my hands, holding it tight.”

“Then letting go of it is an act of holding that person, and then releasing them,” he said.

Warren’s ability to articulate his beliefs are central to the defense’s argument that Warren’s sincerely-held religious beliefs are burdened by federal regulations that keep him, and other volunteers from using the administrative roads that crisscross the Cabeza Prieta wilderness.

In 1993, Congress passed the Religious Freedom Restoration Act, or RFRA, which states that the government “shall not substantially burden a person's exercise of religion,” unless two burdens are met, the first is that such a burden is necessary for “furtherance of a compelling government interest,” and that the rule or law is the “least restrictive way” to do that.

As the defense noted, the refuge manager, Sid Slone, regularly gives out “special use permits” to people specifically to use the administrative roads, including archaeologists, botanists, hunters, and Border Patrol agents, but the agency’s office in Ajo has refused to give No More Deaths this kind of permit to enter the refuge, use administratively-closed roads, or leave property.

The prosecution wasted little time in making their case, presenting only a few minutes of argument before Nathaniel Walters, assistant U.S. Attorney, called Fish and Wildlife Service Officer Jose Luis Valenzuela to the stand to testify.

Walters said there were two charges, and that the only “logical and reasonable conclusion was that Warren was guilty.”

Valenzuela said that Warren passed by three different signs marking the road as restricted, and said that after passing Charlie Bell Well, he continued west and found Warren and his truck more than nine miles inside the wilderness.

Valenzuela testified that at Charlie Bell Pass, the last stop for public vehicles, there is a rescue beacon established by Border Patrol and that he saw cans of beans and water jugs on the beacon’s concrete base. At the parking area, he also spotted a Ford F-150 and a Nissan Pathfinder, and found that only the Ford had the permit necessary to enter the refuge to that point displayed on the dash.

He headed down further, and found what he said was “freshly” placed jugs of water, cookies, shin cream, beans, blankets and “medical supplies” at Charlie Bell Well. He later found Warren and three others, and they told him they were “performing humanitarian efforts,” he testified.

After 40 minutes, federal prosecutors announced that they would rest their case, prompting one of Warren’s defense lawyers, Amy Knight, to say that he had immediately submitted a filing arguing that prosecutors had failed to show that Warren had abandoned property. In her brief arguments, Knight said that prosecutors had failed to show that Warren intended to abandon the property, and that prosecutors had failed to show a connection between Warren and the items spotted to Valenzuela.

She also challenged the idea of abandonment arguing that the regulation was ambiguous, noting that someone who leaves a tent at a campsite, or who left food in a cache on a long hike, could be charged with abandonment if the statute was read too broadly.

“They had to prove that Dr. Warren did this, and they did not,” Knight argued.

U.S. District Judge Raner Collins denied this motion, saying that there was “more than enough circumstantial evidence” with the supplies that officers could make a “reasonable inference” they were linked to Warren.

Gregory Kuykendall argued that the Growler Valley was a “graveyard filled up with people who have suffered horrific deaths” in the desert, and that people were dying in droves. More than 3,000 people have died in Arizona’s deserts since 2001, and “logic and science dictate” that more have died, but their remains have not been found.

Kuykendall argued that Warren had a “spiritual obligation” to act and provide humanitarian aid.

After his opening arguments, Kuykendall, then made the usual move of arguing that his client should be able to testify as part of the claim that his religious beliefs were challenged, but that he would also take the Fifth Amendment when it came to answering about his specific actions that day.

Walters objected, arguing that prosecutors should be able to ask Warren about the specific events, and if Warren refused to answer his questions, the court should find him in contempt.

Collins rejected this argument as well, saying simply: “As I understand it, it seems to me that,” that to use RFRA as an “excuse from punishment, he has to admit he did that action.”

Kuykendall objected, but Collins cut him off. “I’m just telling you how I see things.”

“It’s a fundamental error,” Kuykendall said, to force Warren to “claim one right over another,” and that Warren’s religious freedom under RFRA was in doubt because of a series of court decisions made by two other judges at the Tucson Court.

Kuykendall argued that he’d been put in a box. “Why am I in this box?” Collins shrugged, and said, “It happened.”

Kuykendall considered his options, and then asked to remove Warren from the room for a few minutes. Then, the two men returned and Warren began to answer questions.

During his testimony, Warren noted that from the administrative road, parts of the Growler Valley are beyond his ability to hike out and carry water, saying that at most, he could go out 5 to 6 miles “on a good day.”

“It’s not just that people have died there,” Warren said. “But that their bodies have not been discovered.”

In 2015, Warren published a collection of photographs of more than a dozen objects left in the desert by migrants as they crossed the desert near Ajo. In the piece, “After the Crossing: Afterlives of Found Objects in the Sonoran Desert Borderlands,” Warren wrote about objects left by border crossers, including “water bottles, textile shoe coverings, clothing, hats, backpacks, bedding, phone cards, medicines, palliatives.”

“The desert is neither the beginning nor the end of the struggle. Families mourn the loss of loved ones, deportees consider a second crossing, and those that make it find themselves on the margins of society as undocumented persons throughout the United States.”

“We invite the reader to participate for a time in the unsettled afterlives of these objects found in the Sonoran Desert Borderlands.”

“My beliefs in that sense compels me to go further,” he said, by going beyond the administrative roads, and beyond areas that not protected wilderness. Warren argued that his beliefs require him to act, and that it’s simply not enough to leave water on public access roads. “No, like I said, before that would be a hollow, meaningless performance,” he said. 

 Instead, the “sacred act,” is putting water, “where it is most needed,” he said.

“Can you exercise your faith by not putting supplies out for migrants in need?” Kuykendall asked.

“No. Realistically, I cannot,” Warren replied.

Following Warren’s testimony, and the prosecution’s cross-examination, Collins asked several pointed questions about his beliefs, asking how long Warren held his beliefs, when he began to see the area around Ajo as sacred, whether he told others about his beliefs, and whether or not, he entered the Cabeza Prieta wilderness because his beliefs “compels” him.

During these questions, Kuykendall objected that one was “irrelevant,” but Collins responded that he wasn’t likely to accept an objection to his own question, and moved forward.

Collins also asked about permits, "They weren't going to give you one, were they?" 

"No, they were not," Warren replied. 

Collins stopped his questions, and the court adjourned for the day.

The trial will contiue at 9:45 a.m. on Tuesday.