New details emerge in border wall lawsuit brought by Cochise ranch

Officials with U.S. Customs and Border Protection and the U.S. Army Corps of Engineers called the claims contained in a lawsuit over border wall construction near a ranch in Cochise County "fantastic," and defended the Trump administration's efforts to build a 4.7-mile section of the wall through remote terrain at a cost of $42.2 million per mile. 

The legal filings also show that construction for the 4.7-mile section will continue into mid-February 2021 as the agency is continuing to design a series of "box" culverts meant to deal with potential flooding from the watershed in Guadalupe Canyon, and that officials may rely on manual gates to minimize the possibility that a tree-snag will cause floodwaters to overwhelm the system.

In late November, owners of the Diamond A Ranch and the Guadalupe Ranch Corporation asked a federal judge in Washington D.C. to issue a temporary restraining order, arguing that during construction of the border wall near along about 1.5 miles of their property, contractors and officials repeatedly trespassed and that during demolition of a rocky outcropping called Shadow Mountain, the explosions sent "car-sized boulders" onto the ranch. The ranch's owners also said a proposed design for the wall and an adjacent road would "cause excessive flooding in Guadalupe Canyon," an area "known for continental significance of its floral and faunal diversity." 

All told, CBP, the Department of Homeland Security, the Corps of Engineers, and 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," the owners argued. 

In legal filings Monday, CPB's Acquisition Real Estate and Environmental Director Paul Enriquez wrote that the allegations were false. 

"They are not only false, they are fantastic," Enriquez wrote. "There is no deliberate policy to mislead Plaintiffs or intrude on their property by stealth. I have, at every turn, engaged with Plaintiffs in good faith." 

In November's filing, Sage Goodwin, the business manager for Guadalupe Ranch Corporation and Diamond A Ranch, described a "deteriorating" relationship between the Ranch and officials with CBP, including Enriquez. "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."

Paul Salamanca, a lawyers with the Justice Department's Environmental and Natural Resources Division, wrote that "for the past ten months, CBP has been conducting outreach and coordination with stakeholders, including plaintiffs, through meetings, letters, emails, and site visits." This included a June 10 teleconference, during which officials provided a status update on construction and design efforts.

"And there is ongoing consultation regarding the culvert design for the crossing at Guadalupe Creek," Salamanca wrote." Throughout the construction process the government has listened to Plaintiffs’ concerns and attempted to address them." He argued that the Ranch's owners have "no likelihood of success on the merits of their procedural or substantive due process claims." And, they cannot "show they face an imminent, irreparable injury in the absence of preliminary relief" because in part, the blasting activity ended in November." 

"While there is ongoing construction activity, the contractor will implement mitigation measures designed to prevent both large boulders and smaller materials from falling onto Plaintiffs’ property," wrote Paul Salamanca. "More fundamentally, Plaintiffs make no effort to show that construction impacts on their properties are irreparable. Rockfall can be removed and the area can be restored, and Plaintiffs offer no argument to the contrary beyond conclusory statements."

Salamanca wrote that since the December 7 hearing the "construction schedule has been pushed back to allow for additional review of the culvert design." 

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 headlong 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. 

This particular section is known as Tucson Project A-5, or Tucson 9-5, and includes the construction of a 30-foot high pedestrian barrier, that includes 6-inch wide "bollards" filled with concrete linked with steel panels and set into the ground using concrete. Part of what the agency calls a "border wall" system, the bollard wall will be backed by patrol roads, as well as lights and sensors. 

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 more than $42.2 million per mile to slice through the region's rugged terrain, according to a new estimate released as part of the case. 

This is funded by $3.831 billion transferred from the Defense Department's fund for Drug Interdiction and Counter-Drug Activities, shifted from the U.S. Army. Since 2017, the Trump administration has shifted vast sums of funding from different accounts, shucking Congressional approval, and continuing despite multiple lawsuits over the legality of such efforts. 

While Arizona has been host to border wall construction in previous administrations, the Trump administration moved heedlessly to build new walls, often along publicly-protected land. In Cochise County alone, the nearby Coronado National Forest, the San Bernardino National Wildlife Refuge, and the southern tip of the San Pedro Riparian National Conservation Area have all been affected by new wall construction, along with the southern terminus of the Arizona trail. 

CBP put out a request for public comment on projects in May, but the wall has gone up despite widespread disapproval of the project over environmental and financial costs, and concerns that the project to build Trump's wall would harm tourism or historical and cultural preservation. 

Enriquez said while construction traffic has "sometimes strayed" outside the Roosevelt Reservation — a 60-foot easement along the border owned by the federal government — the contractor "re-surveyed and staked the boundary," and environmental monitors on site should "note" instances where vehicles may travel outside the Roosevelt Reservation. And, USACE is notified of these "infractions and asked to correct them," Enriquez argued. 

"I have encouraged Plaintiffs to bring any intrusions to CBP’s attention so they can be addressed," Enriquez said. "This is hardly a pattern and obfuscation and deception, as Plaintiffs suggest. Rather, it reflects both my and the government’s genuine attempt to address the issue.

Enriquez agreed with one of Goodwin's claims that after a series of demolitions, the rockfall onto the ranch's lands were "unacceptable" and he agreed with Goodwin that an attempt to stop rockfall before it reached the ranch was as he put it "unsuccessful," as contractors sheared off the top of a rock formation known as Apache Lookout using demolitions. Video of the explosion and its aftermath was captured by John Kurc, who repeatedly flew a drone over the area, videotaping SWVC's actions. 

"Here again, this is hardly a pattern of obfuscation and obstruction," Enriquez said. "Plaintiffs concerns were acknowledged and addressed." 

"Plaintiffs go beyond simply alleging that the measures were not successful, however," Enriquez said. "They make far more egregious claims," he said, arguing that Goodwin argued that Enriquez was "somehow responsible for approving the construction contractor’s blasting plans." Enriquez argued he was not in charge of the blasting plans, because "like Mr. Goodwin, I am not a blasting expert." 

And, finally, Enriquez pressed back against Goodwin's claim that a plan to install box culverts as part of the border wall "is inadequate to prevent flooding." 

Enriquez said that "consultation is on-going. Plaintiffs were provided a copy of the initial design and offered an opportunity engage with the construction contractor." And Goodwin and "other stakeholders will have an opportunity to comment on the design, Enriquez said. 

Last week, 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. 

As part of his declaration, Enriquez told the court that in the fiscal year 2019, Border Patrol agents apprehended over 63,000 people attempting to enter the United States between border crossings in the Tucson. However, Enriquez ignored that 2019 included a massive influx of people over previous years, and was largely driven by Central American families who crossed into the U.S. and immediately requested asylum. Total apprehensions in 2019 were higher than they've been in more than a decade, rising to more than 871,000—just below 2007 when apprehensions spiked at more than 876,000. 

CBP statistics showed that from the fiscal years of 2018 and 2019, apprehensions of families went up 227 percent in the Tucson Sector, while single adult apprehensions remained nearly flat. 

Nonetheless, CBP officials, including Tucson Sector Chief Roy Villareal, have pushed hard for the wall, including  in remote areas like the Diamond A Ranch. 

In late October, Villareal said that the sector was slated for 137 miles of new border wall, and that the structure and the roads would create "immediate and tremendous benefits" for agents, including "greater situational awareness," and the ability to "influence illicit activity" and guide it towards areas where agents could more easily make arrests. 

Col. Antoinette R. Gant, the commanding officer of Army Corps of Engineers Southern Border District, said that "no construction activities associated with [the crossing will] commence until this review is completed, and construction on the crossing will not begin before mid-February at the earliest."

She also said that blasting was completed on November 19 along the Ranch's property, as the contractor was continuing away from the Ranch. 

Gant said that one meeting, slated for a Hydrologic and Hydraulic report, had not yet happened, and she disputed that the new culverts could cause flooding, writing that her agency "completed hydrological studies in accordance with industry standards and used data from industry standards."

She also said the "proposed" design will include three 12x14 concrete box culverts and four 12x10 concrete box culverts. "As such, this is not the final design for this work," she said. "One mitigation measure currently being considered for potential seasonal flooding is the installation of large, manually raised drainage gates, which will allow large debris, such as tree limbs or downed trees, to pass without clogging the natural waterways," she said. "CBP would be responsible for manually raising the gates."

This follows designs used throughout the borderlands, including a section of border wall near Nogales where a 60-foot section collapsed near the Mariposa Port of Entry in 2014, flooding homes and businesses. 

Gant warned the court that halting the A-5 project would cause the government "irreparable harm." 

"The contractor and government personnel are actively working on extensive construction and pre-construction activities in this project area, but an injunction immediately stops these activities and prevents the government from taking necessary steps to complete the barrier construction project," she said.  The daily suspension costs for Tucson A-5 are estimated at $332,000, with a cost of $10 million per month, Gant said, adding that an injunction could force the government to reduce the scope or terminate the contract, she said, costing an estimated $7.3 million. 

And, re-upping the contract after cancellation would cost another $89,555, she warned.