As enviro groups prepare lawsuit, Ducey forges ahead on border barrier made from cargo containers

Arizona officials began installing cargo containers in the Coronado National Forest on Monday as part of an effort to build a 10-mile-long barrier, ignoring federal officials and igniting a legal challenge from environmentalists.

Workers will place nearly 2,800 cargo containers across the 10-mile stretch of the border in Cochise County at a cost of $95 million, a spokesman for Arizona Gov. Doug Ducey said. On Monday afternoon, the governor's office tweeted out images of the new border barrier to "follow through on our promise to add physical barriers to the border where possible."

"We stepped up to the plate in Cochise County. Construction on a 10.25-mile border wall gap began this morning," the governor's office wrote on Twitter. "It will take approximately 2,770 containers across this extremely rugged terrain, but we are determined to fill the gap – literally."

Images show construction vehicles stacking containers along a road in the protected landscape, one of the few areas not marked by the Trump administration's massive build-out of border barriers on federal land in Arizona. During the Trump administration, U.S. Customs and Border Protection approved dozens of border wall projects in the state, carving through federal land including Organ Pipe Cactus National Monument, the San Bernardino National Wildlife Refuge, and the San Pedro National Conservation Area—which once included one of the nation's last free-flowing rivers.

Ducey's effort comes as federal officials have warned that a similar project near Yuma violates federal law and is a "trespass against the United States." At the same time, construction in Cochise County will trigger a lawsuit from the Tucson-based Center for Biological Diversity, who warned last week they would sue if Arizona builds a wall in the Coronado National Forest.

Overall, CBP has about 701 miles of "primary barriers" and around 70 miles of "secondary" fencing along the U.S.-Mexico border. Before the Trump administration, there was about 197 miles of pedestrian fencing, and 16 miles of secondary fencing, and the agency added about 450 miles of border barriers at a cost of at least $15 billion. This included money pulled from the DHS and the Department of Defense, including money from a U.S. Treasury fund fueled by drug seizures.

However, even with billions in spending and hundreds of miles of new fencing, state Republicans have demanded additional barriers to stymie asylum seekers, who have fled criminal groups and despotic regimes to seek protection in the U.S., arriving along the border near Yuma, Ariz. In January, Ducey complained about the number of people crossing what he claimed was a "wide-open and unprotected border."

"Our border is a patchwork of federal, state, tribal and private lands," Ducey said. "Where Arizona can add physical barriers to the border, we will."

The Tucson Sentinel requested comments from Homeland Security officials and the U.S. Forest Service. DHS did not respond to a request for comment; Forest Service officials referred a comment request to the Justice Department, which did not respond to questions.

'Immediately fill the gaps'

On Aug. 12, Ducey ordered the Arizona Department of Emergency and Military Affairs to "immediately fill the gaps" near the Yuma border wall by "fortifying" it with 60 cargo containers stacked two high, creating a 22-feet high barrier "reinforced" with concertina wire at the top.

The announcement came just weeks after the Biden administration said it would close four gaps in the border wall near Yuma, including an area near the Morelos Dam, which straddles the Colorado River and feeds the Canal Alimentador Central. The work near Yuma will protect migrants attempting to cross into the U.S., who can slip or drown walking through the Colorado River, said Department of Homeland Security officials.

Homeland Security Secretary Alejandro Mayorkas said he authorized completion of the project near the dam to reflect the administration’s “priority to deploy modern, effective border measures and also improving safety and security along the Southwest border," adding the funding for the project would come from DHS rather than the Defense Department's construction budget, which the Trump administration siphoned in attempt to end-run around Congress.

Despite the announcement a border wall was forthcoming, Ducey launched the construction effort with "state-owned" containers. The containers are about 40 feet long, creating a linear barrier of about 1,200 feet. Weighing about 8,000 lbs. each, the containers were linked together and welded shut, the governor's office said. Ashbritt, a contractor for Arizona Department of Emergency and Military Affairs built the barrier at a cost of around $6 million, part of $335 million authorized by the Arizona Border Security Fund passed by the state Legislature and signed into law earlier this year.

"Arizona has had enough," Ducey said. "We can’t wait any longer. The Biden administration’s lack of urgency on border security is a dereliction of duty. For the last two years, Arizona has made every attempt to work with Washington to address the crisis on our border."

By October, state officials placed 80 containers on land managed by the Bureau of Reclamation near dam, as well as 42 shipping containers on land that's part of the Cocopah Indian Tribe's West Reservation, wrote Jackylnn Gould, the regional director of the Bureau of Reclamation. Gould told the governor in early October the barrier near Yuma violated federal law and would hamper the federal government's ability to fill the gaps.

"The unauthorized placement of these containers constitutes a violation of federal law and is a trespass against the United States," Gould wrote. "That trespass is harming federal lands and resources and impeding Reclamation's ability to perform its mission."

Gould told state officials to stop placing new containers, and work with federal officials and the Cocopah Tribe so CBP's project "may proceed without unnecessary delay. Reclamation will be reaching out to DEMA to discuss a way forward and requests your cooperation in the removal of these containers."

Officials with the Cocopah Indian Tribe said the agency was "taking the necessary and appropriate action to resolve this issue."

"Beyond that, we will continue working  side-by-side with local, state, and federal law enforcement on securing the border," said Jonathan Athens, a spokesman for the Cocopah Indian Tribe.

On Oct. 20, CBP said it would begin to close gaps in the border near Yuma in early 2023 using a "combination of barriers and mechanized bollard vehicle gates" giving the agency access to the riverside of the barrier. CBP deputy director Paul Enriquez said the new barriers, running along Arizona's western barrier with Mexico would "provide improved security and reduce injury and death during crossing" and "route migrant traffic to safer locations.

This would include the closure of a 300-foot gap, a 1,350-wide gap, and two 50-foot gaps left by construction. "The project area is located on federal land that was previously disturbed by other construction activities," Enriquez wrote.

The construction in Yuma blindsided CBP officials, and when asked if the governor's office told CBP officials about the new construction in Cochise County, Ducey's spokesman C.J. Karamargin said "it shouldn't be a surprise. They live in this state, and they're aware of the governor's priorities."

With Yuma's barrier finished, state officials began staging containers near Nogales, Arizona and along a road in the Coronado National Forest. In an Oct. 7 letter, Kerwin Dewberry, the Forest Supervisor for Coronado National Forest, told state officials letter the state needed to go through federal approval to build a barrier in the protected landscape. 

Ducey responded by launching a lawsuit challenging the federal government's ability to manage federal land, including the Roosevelt Reservation—a 60-foot-wide easement created by President Theodore Roosevelt in 1907.

'A contemptuous, failing publicity stunt'

Meanwhile, the Center for Biological Diversity gave the state a 60-day notice they would sue if the governor's office began installing shipping containers west of the Huachuca Mountains in the Coronado National Forest near Coronado National Memorial. The Center said the new barriers could violate the Endangered Species Act because the new wall could block the migration of ocelots and endangered northern jaguars.

"These shipping containers are a shameless publicity stunt that will jeopardize the survival of endangered wildlife," said Robin Silver, one of the group's co-founders. "There are 3,700 agents covering the Tucson Sector alone, not to mention helicopters, drones and hundreds of cameras. We’re in an extinction crisis, and it’s reckless to sacrifice a critical wildlife corridor and harm endangered animals so Ducey can score political points."

"Your placement of shipping containers to 'close the gaps' in the border wall is nothing more than a contemptuous, failing publicity stunt," the Center wrote.

"In the San Rafael Valley on the west side of the Huachuca Mountains, we have now documented initiation of you plans to block wildlife corridors with your shipping container stunt," said the Center. "You have already illegally moved your shipping containers onto the Coronado National Forest west of the Huachuca Mountains immediately to the west of the Huachuca Mountains for deployment along the Border."

This is an "established and critical movement corridor for federally listed and protected jaguars and ocelots," the group added. "Further deployment of your shipping containers along the Border will obstruct the movement of and will prevent the recovery of endangered jaguar and ocelot. The shipping containers are reasonably certain to cause unlawful take of jaguar and ocelot."

In September, the governor's office began stockpiling containers near Nogales, Ariz. at the National Guard Armory, but last week, the shipping containers vanished, the Nogales International reported. Karamargin acknowledged the mountainous or rocky terrain around Nogales "might not be the best place for a shipping container solution to fill gaps in the existing border barrier," the NI reported.

"These useless barriers do nothing to stop people from crossing the border, but they’ll stop wildlife in their tracks," Silver said. "Unless Ducey wants his legacy to be driving Arizona’s most iconic animals to extinction, he needs to end this ridiculous waste of taxpayer money."

Ducey challenges federal government

Following the Bureau of Reclamation's letter, Ducey sought to challenge the federal government with a lawsuit Friday, arguing the Roosevelt Reservation—a 60-foot wide easement created by President Theodore Roosevelt in a 1907 proclamation—was unconstitutional.

In a 20-page lawsuit, backed by several exhibits, Brett W. Johnson, a lawyer with the private law firm Snell & Wilmer, LLC, wrote Roosevelt's proclamation "did not cite any statutory authority upon which it relied," state officials wrote. "Instead, the Roosevelt Reservation cited only that it was “necessary for the public welfare,” to reserve the above-described land from “the operation of public land laws and kept free from obstruction as a protection against the smuggling of goods between the United States."

"Accordingly, the Roosevelt Reservation was outside of President Roosevelt’s authority to issue, and as such is unconstitutional as a matter of law and has no force or effect," state officials argued.

The Roosevelt Reservation covers public lands across California, Arizona, and New Mexico. However, Texas was excluded because the state's annexation and admittance as a state left the land under private control. Ironically, it was the easement that made it easier for CBP to build the border wall in Arizona, and federal officials used the Reservation to defend the government from lawsuits launched by environmental groups and ranchers during the Trump administration.

"The citizens of Arizona are experiencing an unprecedented crisis at the State’s southern border, caused in large part by the federal government’s complete abdication of responsibility with respect to immigration and national security policy," wrote  officials wrote. "In 2017, the United States government initiated construction of an effective border wall between the United States and Mexico, including along the southern border of Arizona. However, the federal government abandoned the effort in 2021, leaving states without the means or support to continue construction."

With construction halted, the abandonment of the project left numerous gaps in the border wall that fail to provide a meaningful barrier across the State, making it significantly easier for foreign nationals to cross illegally into Arizona. Indeed, the crisis at the southern border is characterized by a massive, multifold influx of migrants, drugs, and crime that only continues to increase alongside the federal government’s neglect."

"The gaps in the border wall have also created a humanitarian crisis within Arizona as migrants flood through the border wall gaps and into Arizona’s border towns, which quickly became overwhelmed," state officials wrote.

State officials also complained that Forest Service officials "threatened to arrest state employees working to close the border wall if they do not cease operations."

"But rather than allowing Arizona to deal with the crisis the federal government created, the federal government has not only proven uncooperative, but has actually taken action to block the State from helping its own people," state officials wrote.

"With this lawsuit, we’re pushing back against efforts by federal bureaucrats to reverse the progress we’ve made," said Ducey. "The safety and security of Arizona and its citizens must not be ignored. Arizona is going to do the job that Joe Biden refuses to do — secure the border in any way we can. We’re not backing down."

In the lawsuit, the state claimed the shipping containers have "proven to be an effective temporary solution, as nearly 3,820 feet of previously open border near the overwhelmed community in Yuma is now closed."

The state quoted John Modlin, chief of the Border Patrol’s Tucson Sector, who said barrier is a helpful because "if Yuma has 10 gaps and people were 27 crossing all 10 gaps, it’s much more difficult for us to deal with than if Yuma has one or two gaps and the majority of traffic is crossing through those gaps."

Even with the container wall in place, the number of people taken into custody by Border Patrol agents near Yuma increased about five percent, rising from 24,226 people in August to 25,495 people in September.

And, some migrants may have shifted over to the Tucson Sector, which runs from the Yuma County line to News Mexico. From August to September, the number of people encountered in the Tucson Sector increased 17 percent, rising from 18,506 to 21,740, according to CBP data.

Nationwide, the number of encounters increased 15 percent, driven largely by asylum seekers fleeing authoritarian regimes in Venezuela, Cuba, and Nicaragua, CBP officials said.

CBP Commissioner Chris Magnus—a former Tucson police chief—said that while the number of encounters increased, the agency saw progress with a new policy designed to keep Venezuelan migrants in Mexico.  "Over the past week, the number of Venezuelans attempting to enter the country fell more than 80 percent compared to the week prior to the launch of the joint enforcement actions," Magnus said. "While this early data is not reflected in the latest report, it confirms what we’ve said all along: when there is a lawful and orderly way to enter the country, individuals will be less likely to put their lives in the hands of smugglers and try to cross the border unlawfully," he said.

"CBP and DHS will continue to work with our partners in the region to address the root causes of migration, expand legal pathways, facilitate removals, and take thousands of smugglers off the streets," said Magnus. "No matter what smugglers say, those who do not have a legal basis to remain in the country will be removed and people should not make the dangerous journey."