Tucson activist charged with protesting border wall on Organ Pipe testifies at federal trial

Facing two federal charges stemming from her arrest on the Organ Pipe Cactus National Monument in September 2020, Amber Ortega testified in court Thursday that she acted "without hesitation" to block border wall construction near Quitobaquito Spring because she believed she needed to protect the land from being "desecrated."

Ortega told U.S. Magistrate Judge Leslie A. Bowman in a Tucson courtroom that she was acting out a sincerely held religious belief that the natural spring, and the land surrounding it, remain an important part of the spiritual life of the Hia C-ed O’odham. The land "holds our history," Ortega said, and until border wall construction began in 2019, the land remained "unharmed" since "time immemorial."

Ortega and Nellie Jo David were arrested on September 9, 2020, by National Park Service officers just beyond Quitobaquito — about 120 miles southwest of Tucson — and charged with two misdemeanors, including interfering with federal function and violation of a closure order.

Ortega and David attempted to block construction on the border wall by physically putting themselves in the way, with Ortega yelling at federal officers and workers for contractors to "cease and desist" from continuing with a massive construction project in a fragile desert area.

David accepted a plea deal in June, agreeing to probation and a $200 fine. However, Ortega has pushed forward with her case, arguing that blocking construction vehicles on West Border Road was guided by sincerely held religious and cultural beliefs, and that her actions should be protected under the Religious Freedom Restoration Act. That law, passed by Congress in 1993, lays out that the federal government may not "substantially burden a person's exercise of religion."

The prosecutions have continued under the Biden administration, and despite a public campaign by activists that—like many previous efforts—failed to push the U.S. Attorney's Office to halt the case against the two women.

Ortega, who is O'odham, testified that Quitobaquito Spring is the spiritual heart of her people, a place that "holds healing and strength for our people," and that she has visited the site since she was child. The spring is not just a natural cathedral, but once supported a village where her ancestors lived, and also includes gravesites. Before border wall construction, Quitobaquito was a site of religious ceremonies and a place of prayer, she said.

Construction around Quitobaquito became a lightning rod for criticism over the border wall project, as the Trump administration attempted to build as much of the president's promised border wall as fast as possible, ignoring congressional wishes and the financial, environmental and cultural costs of the effort.

Beginning in August 2019, contractors working for the U.S. Army Corps of Engineers and Customs and Border Protection worked west from the Lukeville Port of Entry to build a 43-mile span of border wall along the southern boundary of 330,000-acre national monument. Workers dismantled old barriers, including an 18-foot high wall made of steel screens, as well as low-bollard and X-shaped Normandy barriers intended to keep vehicles from simply driving into the U.S. from Mexico's Highway 2, which runs parallel to the international border there. Contractors replaced the old "outdated" barriers with a new 30-foot-high "bollard wall," part of a massive construction effort to build nearly 700 miles of "primary" border wall under the Trump administration.

As part of the construction, contractors slashed through saguaro cacti and shattered the rocky mantle of the nearby Monument Hill with explosives to install the new wall.

In Arizona, border wall projects affected six different areas of federally reserved land, including the monument, as well as the Cabeza Prieta Wildlife Refuge just to the west. Organ Pipe has been hailed as a "pristine example of an intact Sonoran Desert ecoystem," and was designated as a UNESCO International Biosphere Reserve in 1976.

In November of that year, hundreds of people journeyed to Organ Pipe to protest the construction, after contractors carved up the desert with bulldozers and earth-movers, carving a pathway for construction along the 60-foot-wide Roosevelt Reservation—an easement of land that is controlled by the federal government along the borders of California, Arizona, and New Mexico. Some saguaros were purposely destroyed, while others were marked for removal, while contractors dug up or tore through mesquite trees and other desert flora to continue the project.

During the construction, the park superintendent closed the road, including about 12 miles of the West Border Road along the Roosevelt Reservation from Monument Hill to Quitobaquito Springs. This included "crossover roads" connecting South Puerto Blanco Drive to the border road. The government argued the closure "was in response to public safety concerns associated with border infrastructure construction activity."

In video published online after the incident by the O’odham Anti-Border Collective and Defend O’odham Jewed—using the Tohono O'odham word for land — David can be seen sitting in the scoop of bulldozer on a road freshly carved out of the national monument. As she sat, Ortega yelled from off-camera, demanding that Border Patrol agents, construction workers, and Park Service law enforcement officers leave.

"Keep this destruction out of here," Ortega said. "They are going to destroy everything we have."

"We need you to cease and desist, take your machines with you, take your weapons with you, take everything you are with you. Take it back," she said.

During opening arguments in court on Thursday, Ortega's lawyer, Paul Gattone, told the judge that the land was being "desecrated" in a "manner that offended her beliefs" and that she "feared for the future of the spring." Gattone said that Ortega was praying and singing, and that she continued to do that before she was arrested.

Assistant U.S. Attorney Vincent J. Sottosanti argued that Ortega's personal beliefs were "irrelevant," and that an individual should not block the federal government from "improving" its own land. Rather, she should have pursued legal avenues to stop the government, including filing an injunction in court, he argued.

"We can do whatever we want with our own land," Sottosanti said, referring to the federal government.

Federal religous freedom law

The Religious Freedom Restoration Act may have been crafted as legislation for religious conservatives, but in recent years the law, which states that the government may not "substantially burden a person's exercise of religion," has been used as a defense for liberal and left-wing activists in Arizona's southwestern deserts.

In 2020, U.S. District Judge Rosemary Marquez reversed the conviction of four members of No More Deaths, ruling that the members of the humanitarian aid group successfully established they were exercising "sincere religious beliefs" when they placed water and food for migrants in Arizona's protected Cabeza Prieta National Wildlife Refuge in the summer of 2017.

Similarly, U.S. District Judge Raner C. Collins—the senior judge for the District of Arizona— ruled that Scott Warren, an activist facing federal misdemeanor charges for leaving food, water, clothing and other humanitarian supplies in the desert was protected from prosecution because of RFRA. During trial, Warren argued that leaving water and food to help mitigate the deaths of people who attempt to cross the remote and hostile wilderness, was a "sacred act."

Collins wrote that while "it was clear that the government had presented sufficient evidence beyond a reasonable doubt to prove the two charges," Warren's religious belief "functions as a successful affirmative defense."

Government objects to expert witness

Sottosanti also objected to testimony from the defense's sole expert witness, Lorraine M. Eiler, an elder and former member of the Tohono O'odham's Legislative Council, who described the importance of Quitobaquito to the Hia C-ed O’odham.

"Once the cat is out of the bag, the evidence is presented, it can't be taken back," Sottosanti complained.

"I don't understand what would be the prejudice to the government," Bowman replied. "I think it would be the opposite, the full testimony could be used in any appeal or review, to show why it may be inappropriate."

Bowman went further and said that in jury trials, the court relies on jurors to accept or reject evidence presented: "That a judge wouldn't be capable of disregarding testimony, I don't think that's a good basis for that."

Eiler testified that Quitobaquito was home to her great-grandparents.

They used to live there, she said, as part of a" huge community" or a "village of people, many years ago, before other people moved in." She said that the last people left in 1985, but that around Quitobaquito there is an active cemetery, and in recent years, there have been repatriation ceremonies and two burials. People go to the cemetery to clean it up, hold ceremonies and "camp out" at different times of the year, Eiler said. "It is difficult to explain in some sense because a lot of people think that the only place you can pray is to go into a church," she said, but for the Hia C-ed O’odham, "we didn't have that back then, so the people that we come from do their ceremonies and prayer's in a lot of different places."

She added that her people celebrated not only Quitobaquito, but the Pinacate Peaks that lie just across the U.S.-Mexico border in Sonora. Increasing border security has made it difficult for the people to cross from one sacred site to another, and the staff at the Organ Pipe monument "know this," Eiler said.

"We had a number of ceremonies there last year," she said, including spiritual runners who take a pilgrimage from the Salt River to salt flats on the Sea of Cortez."To us, it's our church, the whole area is our church, where we go to pray," Eiler said.

She described Quitobaquito as a "lifeline" for her people, a place that was covered by medicinal plants, and included water that was sacred. She drew a line between holy water found in the Catholic church to the water of Quitobaquito. People come get the water for their prayers, and people that cross from Mexico also get the water and take it back and use it for the prayers, she said.

During construction of the border wall, contractors for the federal government used thousands of gallons of water to manufacture concrete, and there were worrying signs that drilling for water had knocked down the aquifer that feeds the natural spring. At the same time, hydrologists and environmentalists watched as the water level dropped, and were concerned that construction had battered the man-made bottom of the Quitobaquito basin, installed in the modern era, and that the water was seeping out through cracks. At the same time, there remain concerns about how the Border Patrol's plan for the wall, which includes sensors and flood lights, will harm wildlife, even as the border wall itself has severed migration routes for the endangered pronghorn and other species.

Quitobaquito has been a part of the religious and cultural history of the region, and is an important site for the Hia C-ed O’odham, who lived in the area well into the 1950s, and members still use the springs as site for food gathering and sacred ceremonies. As Gary Nabhan, a University of Arizona research scientist, noted, perhaps the first Palm Sunday mass in Arizona was conducted at Quitobaquito by the celebrated Jesuit Padre Eusebio Francisco Kino in 1698 or 1699.

As Eiler finished, Sottosanti asked if she had filed a lawsuit over the construction. While Eiler had not as a leader of the Sonoran Desert Alliance, other groups did, including the Tucson-based Center for Biological Diversity, as well as the Sierra Club and the American Civil Liberties Union.

While activists and environmental groups were often successful in their arguments that the border wall construction was illegal, and the Trump administration violated federal laws in pulling funding, including millions from military construction funds, the administration charged forward without regard to those questions, relying on the Supreme Court which decided to allow construction to continue even as legal questions remained unanswered.

Ultimately, the Army Corps of Engineers and CBP was able to replace 375 miles of "outdated" border wall with the new 30-foot-high bollards, and add another 371 miles of new wall at a cost of at least $15 billion by Jan. 4, 2021.

Ortega testifies, David describes arrest

After their arrest, David and Ortega were taken to a federal facility in Florence, Ariz., by the U.S. Marshals Service.

Outside the courtroom, David described a two-day ordeal where the government "took jurisdiction of my body and really preyed on my mental health," she said. Employees of CoreCivic, a private prison company that operates the facility, treated the two women badly, David said. The experience triggered her, she said, and her mental health declined.

"They destroyed my life," she said.

During her testimony, Ortega said that at Quitobaquito, she was praying and she heard the construction vehicles and her "heart began to race."

As she described it, she raced to the parking lot at Quitobaquito and grabbed a gallon of water.

"It was without hestitation," she said, adding that she felt she needed to protect the land from being "desecrated," by contractors, who were likely acting without cultural monitors, she said. She grabbed her purse and a rattle, a musical instrument made from a dried gourd. She tracked the sound of the vehicles, and found one "attempting to cut through the land," she said.

"It felt like complete disrespect to our culture, felt culturally insensitive" she said, adding that it "felt violent, felt degrading—a continuation of the harm done to our people without regard to who we are, or what we believe in."

She said she and David placed themselves where it "made it impossible for the land to be hurt," and she began to sing. "I sang every song I could think of" she said, "from since I was a child to honor the land, to honor the water, ot honor the land, to honor our people." Ortega said. "I sang songs i could remember as a child."

She yelled at the two National Park Service rangers, she said, because she "didn't feel safe."

"I wanted them to them to take their machines and their weapons, and their guns away," she said. "I attempted to explain I was not resisting arrest," she said, as the law enforcement officers "slowly encroached in" until she was arrested by NPS.

During cross-examination, Sottosanti tried to describe Ortega's actions as a political act, an attempt to stop the construction of the border wall. However, Ortega said she was there "initially to pray," and then she moved to stop the construction.

Government references another Arizona case

As the hearing came to a close, Sottosanti returned to his argument that the federal government can "improve" public land, "however it sees fit," and that it is limited only by federal laws and policies. He referred to a 2007 case decided by the 9th Circuit of Appeals, in which the Navajo Nation sued the U.S. Forest Service over a plan to manufacture and distribute artificial snow using treated sewage water for the Snowbowl ski resort. While the 9th Circuit first accepted the Navajo argument that spraying wastewater on the mountain conflicted with the religious beliefs of the tribes, a full panel overturned this decision ruling that the federal government's plan did not force the tribe members to choose between their individual beliefs or government benefits, or act contract to their religious beliefs under a threat of civil or criminal sanctions.

Sottosanti said that the decision in Navajo Nation v. U.S. Forest Service undermined Ortega's arguments.

"The facts are not great in terms of what was happening," he said, arguing that the Forest Service planned to "spray wastewater all over most sacred mountain in northern Arizona."

"They can do that, they can destroy the spiritual-ness of this mountain," he said, even after the tribes "did the legal thing." As Sottosanti summarized the case, the government didn't interfere with the prayer of the Navajo people, and he said, "it doesn't matter, we can do whatever we want with out own land." The spring was not subject to the closure order, so Ortega could "freely go and pray at the spring," he said, adding that "nothing the government did interfered with that."

"Even if that plan would damage or interfere significantly with that land, or destroyed that land—its the federal government's land," he said.

And, he referred to the Jan. 6 insurrection at the U.S. Capitol, arguing that protestors who didn't like the election results could enter a "closed federal area" to seek prayer. Ortega, he said, "entered a closed area to get the result she wants to get the border wall to stop. She's not allowed to do that."

Sottosanti said that Bowman should strike Eiler's testimony, and find Ortega guilty.

Gattone shot back that it was offensive to argue that Ortega's actions were comparable to the actions of the January 6 insurrectionists. "This isn't a state building, or some other building," he said. Rather, Quitobaquito is a sacred site, akin to a church, and Ortega went to pray and show respect to the land and water. "This was not intended to be a protest, it was intended to be an expression of her religious beliefs." 

Ortega acted for the "love of the land," he said.

Gattone also argued that she did not know about the road closure.

Sottosanti replied that the "government doesn't doubt sincerity of her beliefs."

"I'm not challenging that sincerity. I'm not challenging her religion at all," he said. "The point is the sacred place was not closed at all," and Ortega "volunarity went to place that was closed—the road."

"It's clear that this was a protest, an effort to stop construction," Sottosanti said.

Outside the courtroom, Ortega described Sottosanti's arguments as "degrading."

"It felt like a complete disregard for our humanity as indigenous people," she said. Ortega described the incident as one of fear, describing how Border Patrol agents and other federal officials often "harass" the O'odham people.

"I wanted the court to understand that there was real fear for the land, for the animals, fear for our people, fear for the future," she said. "We talk a lot about future generations and honoring the ones who have passed on. And it may seem like a small thing in the courtroom, but it's actually a huge thing to us."

At heart, Bowman has to consider three separate decisions: first, whether to accept the government's argument that Eiler's testimony is acceptable; second, whether to accept Ortega's defense under the Religious Freedom Act; and third, whether Ortega's is guilty of violating federal law. 

Bowman did not rule Thursday, but instead said she would take the matter under advisement.

In June, the Government Accountability Office said it would review the impact of border wall construction under the Trump administration, following repeated urging by U.S. Rep. Raúl Grijalva. In a letter to Grijalva in his position as the chairman of the Natural Resources Committee, the federal watchdog said it would examine the impacts of the U.S.-Mexico border wall on "natural and cultural resources along the southwestern border."

In May, Grijalva demanded a review of the wall, saying that "in an effort to expedite construction of the border wall, the Trump administration’s Department of Homeland Security blatantly abused its sweeping and potentially unconstitutional authority to waive all laws and legal requirements standing in the way."

Grijalva, whose district includes nearly 300 miles of borderlands, has remained a stalwart critic of border wall construction. In April 2017, he joined a lawsuit with the Tucson-based Center for Biological Diversity to force the Trump administration to consider the environmental impact of border enforcement, including the construction of a wall, along the U.S.-Mexico border.

"American environmental laws are some of the oldest and strongest in the world, and they should apply to the borderlands just as they do everywhere else," said Grijalva in a 2017 statement about the suit "These laws exist to protect the health and well-being of our people, our wildlife, and the places they live."

"Trump’s wall — and his fanatical approach to our southern border — will do little more than perpetuate human suffering while irrevocably damaging our public lands and the wildlife that depend on them," he said.

Grijlava also lambasted how DHS reviews the environmental impacts of construction. In his letter to the GAO, Grijlava wrote that U.S. Customs and Border Protection, the component agency that includes U.S. Border Patrol, does not work with "affected stakeholders" to complete the agency's own Environmental Stewardship Plans.

Under the waiver, CBP is "supposed to assign individual monitors" to ensure that the ESPs are followed.  "According to CBP, ESPs are very similar in approach and content to traditional National Environmental Policy Act documents and were created to fulfill the Secretary of Homeland Security’s commitment to responsible environmental stewardship," he wrote.

"Nevertheless, affected stakeholders, such as the Tohono O'odham Nation, have reported irreparable harm to natural and cultural resources, such as Quitobaquito Springs and other sacred sites from border wall construction—even with CBP’s assessments," Grijalva wrote.

As Grijalva noted, in Feb. 2021 a coalition of nearly 70 environmental groups, civil-rights organizations, and tribal entities sent a report to members of Congress and the Biden administration describing the impacts of the border wall for endangered species, included the northern jaguar and Sonoran pronghorn.