Cochise ranch sues over border wall work blasting 'car-sized boulders'

Cochise County ranchers have sued the Trump administration, claiming contractors "trespassed onto and destroyed private property" while building a new section of the 30-foot-tall border wall, and sent "shrapnel, and car-sized boulders" into the ranch during blasting work.

In the lawsuit filed in late November in Washington D.C., the Diamond A Ranch and the Guadalupe Ranch Corporation asked a federal court to issue a temporary restraining order, arguing that U.S. Customs and Border Protection, the Department of Homeland Security, the U.S. Army Corps of Engineers, and the contractor Southwest Valley Constructors "failed to comply with the requirements of the Constitution and laws of the United States in relation to their preparations for and construction of a border wall on land adjoining the Ranch’s property." 

Southwest Valley Constructors — a subsidiary of the construction company Kiewit — is in charge of the 4.7-mile project, which runs from the New Mexico border to the west, and will cost about $41 million per mile to slice through the region's rugged terrain. 

Tucked into the southeastern corner of Arizona, the ranch is a "national model of conservation ranching that balances commercial operations, the preservation of traditional ranch life and customs, scientific research, healthy, resilient wildlife habitat, and a commitment to preserving open space," said Sage Goodwin, the business manager for Guadalupe Ranch Corporation and Diamond A Ranch. Inside the ranch is Guadalupe Canyon, which Goodwin said is "known for continental significance of its floral and faunal diversity." 

"It is a particularly intact example of rare canyon riparian woodland habitat, and a vital component of the only contiguous link between the habitats of the Sierra Madre in central Mexico and the Rocky Mountains," Goodwin said in court documents.

However, despite the environmental sensitivity of the region, CBP identified the area as one of the locations for an expansion of the Trump administration's border wall projects, and by July, the relationship between the Ranch and federal officials had "deteriorated" as the contractors intruded on the land, refused to negotiate a right of access, stored construction equipment on the Ranch land, and during a series of demolitions sent "tons" of rubble into the ranch land. 

And, his attempt to get federal plans on Guadalupe Creek, part of the region's watershed that's prone to sudden flooding, was “stonewalled” by officials at USACE, Goodwin said in a declaration.  

"The Ranch has tried—repeatedly—to engage in good faith negotiations with the Agencies regarding incursions onto and destruction of its property. But, instead of meaningful engagement, the Ranch has been met with lack of action and empty promises," Goodwin said. The efforts of the contractor, and CBP officials within the Roosevelt Reservation—a 60-foot easement along the border owned by the federal government—"have had, and continue to have, a substantial impact on the Ranch’s adjacent private property." 

Nearly $15 billion has been allocated for the president's border wall, and in recent months, CBP and the U.S. Army Corps of Engineers, which is in charge of construction efforts along the border, have forged head-long to build the wall—ignoring public protests, Congressional fury, and even repeated losses in federal court. In the latest announcement from CBP, sent out just before November's election the agency said that it had completed 371 miles of wall, and funded another 367 miles. 

"Defendants, intent on completing as much of the wall as possible before the end of President Trump’s term, will continue on this course unless they are enjoined," the lawsuit argued. "Plaintiffs are not making a political statement. They support and depend on strong border enforcement, and they have maintained good relations with the Border Patrol for decades. But officials dispatched from Washington to build the wall have unconscionably abused Plaintiffs’ trust." 

While most federal construction projects must follow dozens of federal laws that guide how projects can be completed, Homeland Security can waive them under a provision added to federal law in 2005. 

As CBP put it, the Homeland Security Secretary's waiver "means that CBP does not have any specific legal obligations under the laws that were included in the waiver, but just as was the case with past projects covered by a waiver, DHS and CBP recognize the importance of responsible environmental stewardship of our valuable natural and cultural resources." 

On Monday, U.S. District Judge Christopher R. Cooper, refused to issue an immediate restraining order, but he ordered CBP and SWVC to give the ranch a 14-day advanced notice for any "culvert-related construction activity" across Guadalupe Creek and 10 days notice of any blasting adjacent to the Ranch. He also set deadlines for briefing, requiring documents be in by Dec. 21. 

"From the earliest stage, the Ranch attempted to engage with," federal officials and the contractors "to minimize impacts to its property while allowing them to do their jobs," however, "engagement with the Ranch has been designed to deceive the Ranch into believing that the Agencies genuinely intended to protect the Ranch’s property, while in fact speeding destructive construction practices at all costs in the hope of creating a fait accompli beyond any remedy by a court."

While representatives from the ranch have repeatedly objected to the intrusions, explosions, and the construction of "massive retaining walls and the obstruction of a creek that threatens to flood the Ranch's land," their protests have been ignored, "resulting only in boilerplate expressions of official sympathy for the intrusions and empty promises to do better next time." 

Timeline shows collapsing relationship

As the lawsuit noted, on Feb. 18, a "border wall team" including officials from CBP, the U.S. Army Corps of Engineers, and SWVC came onto the ranch's property, and did not stay on the easement. The group "did not seek or invoke legal authorization to be on Ranch property, nor did it afford the Ranch any process prior to this intrusion," the lawsuit said. "In particular, the team did not attempt to negotiate a right of entry (“ROE”), as CBP has done in the past." 

Goodwin said he objected. "This objection, however, had no effect," the lawsuit said. 

Goodwin said that in March, CBP announced it was seeking public input regarding new barriers in Cochise County, and he realized soon that the Ranch bordered one section of the new project, and he took CBP "at its word that it would consider public input in making its border wall plans." He said that he tried to "engage" with USACE and Paul Enriquez—CBP's Acquisition, Real Estate and Environmental Director—and in the meantime on March 23, SWVC was awarded a $524 million contract to design and build the border wall. 

Soon after, "loud government helicopters began to overfly the Ranch around this time, frightening the livestock," Goodwin said. By May 15, Goodwin and his family sent a comment to CBP objecting to the project for two reasons: "first, that wall construction would result in a construction footprint well outside of the Roosevelt Reservation; and second, that the proposed wall design could cause excessive flooding in Guadalupe Canyon." 

CBP replied back with a form letter that "made no response to the Ranch’s concerns about collateral damage from blasting."

Goodwin remained concerned because the area of the Ranch adjacent to the Roosevelt Reservation, and the proposed border wall is "rugged and remote terrain that is very difficult to cross on foot, let alone to build on. Grades vary from completely flat to up to ninety percent." 

And, soon it became clear how SWVC would deal with this problem, largely by blasting the earth with "hundreds of pounds of explosives" to cave steep terrain into fractured rubble, and then use heavy equipment to level the ground, and build a retaining wall, Goodwin wrote. By July, this became a reality as heavy tracked equipment assembled on Goodwin's land, and "Massive explosions and percussions of enormous jack hammers came closer and closer to the Ranch." 

A letter from Sens. Martin Heinrich and Tom Udall—both from New Mexico—seemed to pressure federal officials into responding to Goodwin's concerns. During a September meeting Enriquez and a "senior government contractor" promised Goodwin that "the debris incursions were 'unacceptable' and that no further incidents would occur." However, in early October SWVC "blasted off the top of the elevated feature we call Apache Lookout." 

Video of the explosion and its aftermath was captured by John Kurc, who repeatedly flew a drone over the area, videotaping SWVC's actions. 

Enriquez described remediation efforts, and that satisfied Goodwin, who said he thought the "issue had finally been resolved." However, "in fact, the pace and impact of blasting seemed to increase. In October, SWVC caused major explosions that blasted construction debris onto Ranch property. I would guess that hundreds of tons of rocks, dust, and boulders were thrown down onto the Ranch from the Roosevelt Reservation," Goodwin wrote. This was followed by big explosions at Shadow Mountain, again captured by Kurc's drone. 

"As is obvious from John Kurc’s October 22 video, the explosion threw large amounts of material down the slope onto our property. It is plain that neither the Agencies nor SWVC actually carried out the plans Mr. Enriquez described." 

Goodwin also said that he was concerned about the wall's affect on the watershed, noting that Guadalupe Creek is a "ephemeral stream" that can suddenly flood. "When enough rain falls, however, the Canyon can send a huge volume of water speeding down a narrow channel, carrying trees, boulders, and even animals in its wake," Goodwin wrote. "The creation of a border wall sufficient to stop illegal crossings will necessarily impede the flow of water, even if some of the fencing that prevents illegal entry from Mexico can be theoretically removed during flood events. The impounded waters will very likely affect the Ranch’s access to the outside world. Guadalupe Creek runs alongside the Ranch’s private road (the “Road”) in the bottom of Guadalupe Canyon. The Ranch depends on the Road for access to food and hospitals."

And, Goodwin argued that a plan to install box culverts as part of the border wall "is inadequate to prevent flooding." And, his attempts to get hydrological studies for these culverts has been "stonewalled" by USACE. The "failure to provide a single hydrological or drainage study supporting their Guadalupe Creek culvert design is alarming," Goodwin wrote. 

CBP dodges discussing wall's environmental impact

In its own Environmental Stewardship Plan for the project, the agency largely avoids discussing the environmental affects of the wall and its construction. 

"If unavoidable impacts result from Project construction, CBP may implement mitigation measures," the agency wrote. "The scope or extent of CBP's mitigation will be based on the actual impacts from the Project after it is complete. CBP's assessment will be based on, among other things, feedback from environmental monitors and the final construction footprint." 

"Although we did not understand it at the time, in hindsight we agree with one of the sentiments expressed in various environmental groups’ May 15, 2020 comment on the relevant border wall section. These groups described the public comment process as "a completely meaningless exercise," adding that the government’s "prior actions clearly demonstrate that the agency has no intention of factoring public input into project planning or design," Goodwin wrote. 

CBP released a summary of the public concerns of the larger Arizona-wide project. Of the nearly 7,000 comments received by the agency, 642 were considered "unique" while the rest were form letters. The agency then split those unique comments into 13 categories, in almost every category according the agency's own analysis, the concerns over the project outweighed those who defended it. 

For instance, 112 commenters "expressed opposition over DHS’ waiver of environmental laws to expedite construction. Comments mentioned specific laws that were waived, such as the National Environmental Policy Act." 

And, 296 comments submitted referred to the "impact of the projects on animal and plant species." Of those, 272 comments were opposed to barrier construction, stating the project would have a negative impact on wildlife," CBP wrote. "A total of 114 comments mentioned the jaguar, whose habitat transverses the border between Arizona and Mexico." 

Others criticized the project over tourism, historical or cultural preservation, and damage to the visual landscape. Of those who supported the project, they were mostly concerned with border security, or crime and drug smuggling. And, another 141 objected to the costs. "The majority of comments suggested that the potential benefits did not justify the cost to taxpayers or stated it was a waste of resources. A couple of the comments also suggested diverting resources from the wall to COVID-19 pandemic support and relief," CBP said. 

"While we do not share some of these groups’ categorical opposition to all border walls, we have shared their unhappy experience with the government’s "engagement” process," Goodwin wrote. 

"The difference in our case is that the government has used claims of good faith and engagement not just to neutralize political opposition but to take away the Ranch’s property rights. I now believe this is a conscious modus operandi, and that the agencies will continue to offer sympathy and promises while construction barrels ahead, and they will do so for months into the future if they aren’t stopped."