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Judge tosses Native activist's 'religous freedom' defense in border wall protest case

Ortega's testimony 'emotional and heartfelt' but feds didn't interfere with access to sacred Quitobaquito, court finds

Amber Ortega, a Southern Arizona border activist arrested last year protesting the construction of the border wall near Quitobaquito Springs, cannot use a federal law protecting religious freedom as her criminal defense, a judge ruled Thursday.

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 an agency function and violating a closure order, after they attempted to block construction on the border wall by physically putting themselves in the way. Video from the incident shows Ortega yelling at federal officers and contractors to "cease and desist" from continuing with the massive construction project in the fragile desert area.

Judge Leslie A. Bowman ruled that she would not consider the testimony of a Tohono O'odham elder presented as part of Ortega's defense during a trial this month, and further, that the defendant was "unable to prove at trial" that the government imposed a substantial burden on her exercise of her religion by blocking access to a nearby corridor of land sealed off for the construction of Trump's border wall.

David accepted a plea deal in June, agreeing to probation and a $200 fine. However, Ortega has pushed forward with her case, arguing that her protest that blocked 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."

On Nov. 4, Ortega faced a bench trial, and she argued that she acted "without hesitation" to block border wall construction near the spring because she believed she needed to protect the land from being "desecrated." She told the court 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."

However, 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 also asked Bowman to block testimony from Lorraine Eiler — an elder and former member of the Tohono O'odham Legislative Council — who was presented as an expert witness.

In a 10-page decision released Thursday, U.S. Magistrate Judge Bowman ruled against Ortega, and accepted the government's argument that Eiler's testimony should be precluded. While Eiler's testimony will not be considered in her decision about Ortega's guilt or innocence, the judge wrote that the court "may consider it for purposes of motive and mitigation."

Bowman's decision makes it likely that she will find Ortega guilty in the case, but in other recent cases involving activists protesting on federal land, U.S. District Court judges in Tucson have been reticent to sentence defendants to prison time or impose significant fines.

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Bowman ruled that the defense had failed to established the case that following the orders of the two National Park Service rangers would impose a substantial burden on Ortega's ability to act in accordance with her sincerely held beliefs. Further, Ortega needed to show how "her presence in the closed area and her disruption of the construction project was an exercise of her sincerely held religious beliefs."

Bowman wrote that based on testimony at trial, Ortega had access to Quitobaquito Springs, even during the closure period, and that there was "no evidence presented that proved that the government interfered" with her prayers or ceremony at Quitobaquito Springs that day, "other than the distant sound of the heavy machinery." She said that Ortega "left the springs where she was praying and entered the closed construction area."

There park rangers "advised Ms. Ortega that the area under construction was closed to the public and she was instructed to leave, or she would be arrested," Bowman wrote.

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.

Quitobaquito a spiritual site for O'odham

Ortega, who is O'odham, testified that Quitobaquito Springs 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 grave-sites. 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 ex-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.

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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.

Bowman's ruling tossed out Ortega's defense that she faced a substantial burden to the practice of her religion, however, Bowman accepted that Ortega was "disturbed by the destruction and desecration of the land near the springs."

Ortega, Bowman wrote was "spiritually wounded by the knowledge that the border wall was going to interrupt access of tribal members to their ancestral lands and that important medicinal plants would be destroyed."

"Construction of the border wall raised painful memories of the harms suffered by native people at the hands of the government throughout history," she said, adding that her testimony was "emotional and heartfelt."

"There is no question that her suffering is genuine and is rooted in her sincerely held religious beliefs," Bowman wrote. "However, the defense was unable to prove" that on September 9, "the closure order and the ranger’s lawful order that Ms. Ortega leave the construction zone imposed a substantial burden on her ability to engage in her religious activities."

While the judge rejected some of Ortega's testimony, she said that the portions of her testimony that were "elicited strictly to support her RFRA defense may also be relied upon for motive and mitigation."

Bowman said Thursday that she will stay her verdict for 30 days, and unless the parties disagree she will render a verdict on Dec. 15.

Federal religious 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."

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Paul Ingram/TucsonSentinel.com

Amber Ortega during a protest on the Organ Pipe Cactus National Monument in 2019.

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