Enviros seek to block border wall construction affecting 3 Arizona wildlife refuges

Environmental groups requested an injunction to block the Trump administration from building new 30-foot high border barriers in three protected federal wildlife refuges in Southern Arizona, including a project across the state's "last free-flowing river."

Led by the Tucson-based Center for Biological Diversity, and joined by the Defenders of Wildlife and the Animal Defense Fund, the groups asked a federal court in Washington D.C. to intervene and "halt impending border wall construction at three federally protected wildland areas," including Arizona's Organ Pipe Cactus National Monument, the Cabeza Prieta National Wildlife Refuge, and the San Pedro National Conservation Area, which includes Arizona "last free-flowing river."

U.S. Customs and Border Protection plans to break ground on August 21, 2019, the groups said, arguing that "there is no current impediment to border wall construction" unless the court intervenes. 

In a 46-page document, the groups argued that the proposed construction, "consisting of the erection of impenetrable steel bollard walls reaching 30-feet high and several feet deep" will "result in significant, irreversible impacts to these lands," which serve as "refuges to some of the last remaining populations of endangered species whose continued existence and recovery rely on the freedom of cross-border migration." 

CBP would lead the construction efforts and the agency has repeatedly pushed for higher walls along Arizona's borders. This argument was often repeated last fall and during the early summer when hundreds of people — largely Central American and Mexican families seeking asylum in the U.S. — began walking across the border, often ducking under or climbing over vehicle barriers, or in some cases, digging tunnels in the soft-sand under barriers east of Yuma, Ariz. 

In May, CBP announced it wanted to build 43.6 miles of wall along the southern border of the 330,000-acre Organ Pipe Cactus National Monument, a protected wilderness that has been declared an International Biosphere Reserve by the United Nations, as well as the southern edge of the Cabeza Prieta National Wildlife Refuge west to the Yuma County line. 

The Trump administration's plans would effectively split Organ Pipe and Cabeza Prieta from a sister refuge, Mexico's El Pinacate y Gran Desierto de Altar Biosphere Reserve, challenging several endangered species, including the Sonoran pronghorn, desert bighorn sheep and desert tortoises.

CBP would also said it would replace 19.2 miles of fencing in southeastern Arizona, including a section along the San Bernardino National Wildlife Refuge, a 2,369-acre refuge established to protect the wetlands of the Bernardino ciénega, a wetland that serves as a migratory corridor for wildlife moving between the mountain ranges of Mexico and the Rocky Mountains in Arizona and New Mexico. 

"Construction of border walls in these areas will not only directly damage their critical habitat, but even more importantly, will sever ecological connectivity with Mexico, undermining the very reasons for which these area (and their sister conservation parks on the Mexican side) were designated," they wrote. 

In May, Acting DHS Secretary Kevin McAleenan issued a series of waivers, sweeping aside 37 different federal laws to replace a system of existing vehicle barriers — often referred to as Normandy barriers because they resemble World War II-era anti-tank barricades — with "impermeable '30 foot barriers' on the southern boundaries of these conservation zones," the lawsuit read. 

"This tryptic of congressionally-protected areas exemplifies the extraordinary public value placed in conserving the nation’s natural resources—which now face the unprecedented pursuit of a president’s border wall," the groups wrote. 

DHS plans would affect not only Organ Pipe, but sever the region's "binational conservation" between the U.S. and Mexico's El Pinacate y Gran Desierto de Altar Biosphere Reserve, which is listed as a World Heritage site and works to protect the area’s "extraordinary biodiversity and threatened species," the group said. 

El Pinacate was designated as a World Heritage Site in 2013 by the United Nations Educational, Scientific and Cultural Organization, and includes more than 1 million square miles of Sonoran desert from the Sea of Cortez 

"They are recognized as essential pieces of the region’s binational conservation efforts, in large part due to their ecological connectivity with protected lands in Mexico," the group said. 

"Although the northern border of El Pinacate aligns with the U.S.-Mexico border, the broader Sonoran Desert and its extraordinary habitat extend far into the U.S. Thus, the U.S. border areas have been deemed critical to El Pinacate’s 'integrity and ecological connectivity' and to the survival and recovery of many Sonoran species," they argued. 

"The erection of impenetrable bollard walls will truncate the cross- border movement of the endangered Sonoran pronghorn, ferruginous pygmy owl, and Bighorn sheep, which rely on connectivity to other adjacent populations for genetic variability and their continued survival," they wrote. "The construction will also likely destroy the habitat and nests of the highly imperiled Sonoyta mud turtle, which may contribute to its ultimate extinction." 

"It’s senseless to let bulldozers rip a permanent scar through our borderlands’ wildlife refuges and national monuments before the court decides whether the waiver is legal," said Jean Su, an attorney for the Center for Biological Diversity. "Trump’s ignoring laws and diverting funds to build this destructive border wall," she said. "His grotesque barrier would destroy some of the border’s most spectacular and biologically diverse places. We’ll do everything in our power to stop that." 

Fights over funding 

Since the earliest days of the Trump administration, environmental groups have repeatedly challenged plans to build new walls along the U.S.-Mexico border, as well as attempts to siphon money from the Defense Department to fund those walls after Congress largely refused to fund new construction. 

In 2018, Congress granted DHS about $1.57 billion for border wall construction, but U.S. Customs and Border Protection which leads the effort, told a federal judge in May that it had built about 1.7 miles of steel bollard walls, and planned to build another 80 miles. In late-2018, Trump sought an additional $5.7 billion, but Congress balked leading to a months-long partial shutdown of the federal government. 

Finally, Congress agreed to give just $1.375 billion to the Trump administration for border walls, and the president immediately turned around a signed an emergency declaration on Feb. 19, and began seeking more than $8 billion in emergency and non-emergency funds, claiming that he had the legal authority to divert billions for border wall construction. 

This includes funding earmarked for a "counterdrug account" that would be used for the barriers in Arizona, as well as another $2.5 billion in Defense Department funding that the Sierra Club and other environmental groups challenged in a separate lawsuit. 

After a series of loses in federal court, and an affirmation by the Ninth Circuit Court of Appeals, however, the Trump administration filed an emergency appeal with the U.S. Supreme Court, and on July 26, the court's conservative justices dismissed the lower court's injunction, allowing the Trump administration to pull $2.5 billion from the Defense Department to build border barriers in Arizona, California, and New Mexico. 

Projects also planned near Yuma and Douglas 

In mid-April, the Department of Homeland Security said it will waive dozens of environmental, health and other laws to clear the way for construction on about 58 miles of border barriers, including 12 miles of fencing near Yuma.

These areas are where there is “an acute and immediate need to construct physical barriers and roads in the vicinity of the border of the United States in order to prevent unlawful entries into the United States in the project area," DHS said in Federal Register notices posted that month.

Those notices said that McAleenan would invoke the department’s authority to waive more than 30 regulations – ranging from the Clean Air Act and Safe Drinking Water Act to the Eagle Protection Act and Endangered Species Act – to pave the way for border wall projects in Arizona and New Mexico.

DHS was given the ability to waive environmental laws through a part of the 2005 Real ID act, and the agency has used the waiver dozens of times.

"In order to ensure the expeditious construction of the barriers and roads in the project area, I have determined that it is necessary that I exercise the authority that is vested in me,” McAleenan said in the notice. This would allow DHS to build 8 miles of wall near Yuma, about 46 near the Columbus Port of Entry in New Mexico, and another 4.1 miles near San Luis. 

CBP is also planning to replace two sections of border wall south of Sierra Vista, including a mile section along the Coronado National Forest. 

The agency sought public comment on the proposed border barrier projects to construct new bollard walls to replace what the agency called in an unreleased document, "dilapidated and outdated designs in Pima and Cochise counties."

"CBP is seeking input regarding the proposed project’s potential impacts to the environment, culture, and commerce, including potential socioeconomic impacts, and quality of life," the agency said. "Comments on the project will be considered as a part of CBP’s project planning process." 

On July 3, Scott Feldhausen, the district manager for the Bureau of Land Management's Gila District, said in a letter to CBP that a proposed border wall across the San Pedro would be "an engineering challenge" and could affect how the river flows. 

"This extreme flow regime, coupled with the seasonal variability associated with summer monsoons, make installation of permanent, yet permeable, barrier an engineering challenge," Feldhausen wrote. 

He also wrote that plans to replace vehicle barriers with bollard walls along 20 miles of border, from the Douglas port of entry to the New Mexico state line could "cause backflow and erosion that could impact both natural resources and the border barrier itself." And, he questioned how these plans would affect five species, including the northern jaguar. "Impermeable barriers may block corridors of movement for these species," he wrote.