Feds sue Ducey over container walls in Yuma, Coronado National Forest

Federal officials filed a lawsuit Wednesday against Gov. Doug Ducey and other Arizona officials, asking a federal judge to rule that the installation of cargo containers along two sections of the Arizona-Mexico border is an "unlawful trespasses" that violates the U.S. Constitution, block the state from continuing to install the containers, and award damages to cover the costs of removing the 8,000-pound steel boxes.

In the 20-page lawsuit, Justice Department attorney Shaun Pettigrew wrote that Ducey's plan to create ad-hoc barriers using hundreds of used cargo containers violates federal law and the U.S. Constitution because the federal government has "sovereign property rights"along the border. He also argued the containers would make it hard for U.S. Border Patrol agents to see what is behind them and that they could "become fortified bunker" for cartel scouts.

"The United States owns and manages lands on the Arizona-Mexico border under the plenary authority," granted by Article 4 of the U.S. Constitution, wrote Pettigrew, who was joined by U.S. Attorney Gary Restaino with the District of Arizona, and Todd Kim, assistant attorney general with the Justice Department's Environment and Natural Resources Division.

"Those lands can be used or occupied only with permission from the United States through the issuance of permits or other authority under federal law," he wrote.

Under the Supremacy Clause, the federal government's "sovereign constitutional rights in its properties are paramount to the sovereign interests of the States, and any law or other action by a State that interferes with the United States’ paramount sovereign property rights is invalid, violates the U.S. Constitution, and must yield," Pettigrew wrote.

"Arizona has entered Reclamation and Forest Service lands along the Arizona-Mexico border and installed—and continues to install—hundreds of double-stacked multi-ton shipping containers that damage federal lands, threaten public safety, and impede the ability of federal agencies and officials, including law enforcement personnel, to perform their official duties," Pettigrew wrote.

The containers, he said, could impede access to crime scenes or investigating criminal activity in Mexico, and keep agents from seeing what's beyond the containers, "giving the observational advantage to armed scouts for transnational criminal organizations."

"The shipping containers can feasibly be entered on the ends or by cutting access points into the containers, allowing for the concealment of individuals, weapons, or contraband, effectively creating a fortified bunker that would pose a grave threat to unsuspecting Forest Service personnel and the public," he wrote. "This situation is inherently dangerous and inconsistent with the purpose of the Roosevelt Reservation."

Federal officials urged U.S. District Judge Susan M. Brnovich to block construction and declare that Arizona's "use and occupancy of lands owned by the United States without the required permits or other authorization constitutes unlawful trespasses," as well as award damages for the state's unlawful act, "including any costs and expenses incurred by the United States in removing Arizona’s containers and associated materials and in remediating the sites to their prior condition, to the extent possible."

They also asked for a "writ of ejectment," for the removal of the containers and other property, including the containers near the Cocopah Indian Reservation and on the Coronado National Forest.

On Monday, federal officials told Ducey they would file suit over the "unlawful trespass and construction of makeshift shipping container barriers on federal lands."

Ducey responded, telling federal officials in a letter "the number one public safety risk and environmental harm has come from inaction by the federal government to secure our border." He also complained that the Biden administration had halted construction of the border wall.

The lawsuit is one of three separate legal challenges created by Ducey's attempt to use thousands of used cargo containers to create barriers across two portions of federal land, including a 10-mile section in the Coronado National Forest in Cochise County, and two shorter sections near Yuma, Ariz. including a section that runs across the Cocopah Indian Reservation.

Meanwhile, a small band of protestors have hamstrung the project in the national forest by gathering near the construction site and staging grounds. Just after the Thanksgiving holiday, the group began a 24/7 vigil, holding the construction company to just a 3-mile stretch of containers. The group said they will stay in place through January when Ducey's term ends, and Governor-elect Katie Hobbs will take office.

Hobbs has said she would halt construction of the container wall.

U.S. Rep. Raúl Grijalva praised the decision to file suit, calling the move "welcome news and long overdue."

"We need immediate action to finally address the illegal and useless container wall on federal and Tribal lands," Grijalva said. "Thus far, Governor Ducey has wasted $95 million in taxpayer dollars, blocked critical wildlife corridors, and manufactured a dangerous situation with unauthorized armed security personnel along our southern border. Governor Ducey is determined to leave office with a mess, and, unfortunately, it’s now up to someone else to clean it up."

"This should be the beginning of the end of Doug Ducey’s lawless assault on protected national forest-lands and endangered wildlife,” said Russ McSpadden, southwest conservation advocate at Tucson's Center for Biological Diversity. "Ducey is spending his last days in office wasting millions of taxpayer dollars dumping toxic rail-cars on some of the most beautiful, biodiverse lands in Arizona. We’re hopeful a judge will quickly stop this heartless, reckless PR stunt in its tracks."

While the project drew the immediate ire of some residents in Cochise County, the center told Arizona officials they would sue because the containers block the migration of ocelots and endangered northern jaguars violating the Endangered Species Act.

On Wednesday, the center announced it would launch a second lawsuit against Arizona because the containers violate the Clean Water Act.

"These giant pieces of trash are damming streams that feed the San Pedro River, a desert oasis that’s already in danger of drying up," said Robin Silver, a co-founder of the center. "Ducey’s shameful political stunt will starve the Southwest’s last free-flowing river of water, further jeopardizing one of Arizona’s crown jewels and an international birding mecca. This is another stark reminder that this governor has never cared about Arizona."

Silver noted water flows off the Huachuca Mountains to the south across the border, feeding the headwaters of the San Pedro. The river then winds north into the U.S. and "provides one of the last, best riparian corridors for numerous plants and animals, including hundreds of species of migrating birds," the center said. The southern section in Arizona has been protected as the San Pedro Riparian National Conservation Area.

In August, contractors began building a container wall near Yuma filling gaps left by the Trump administration's border wall construction in an attempt to stymie asylum seekers from crossing into Arizona. Despite widening controversy and complaints from the federal government that the project was interfering with a plan by U.S. Customs and Border Protection to close those gaps with new barriers and violating the Roosevelt Reservation, an easement owned by the federal government for more than a century, Ducey launched a new effort to install nearly 2,800 cargo containers across a 10-mile stretch of the border in Cochise County at a cost of $95 million.

Ducey said the new border barrier would "follow through on our promise to add physical barriers to the border where possible," adding that funding for the project would come from $335 million authorized by the Arizona Border Security Fund passed by the state Legislature and signed into law earlier this year.

When federal officials objected to the construction citing the Roosevelt Reservation and a need for federal permits, Ducey retaliated with his own lawsuit, arguing the easement created in 1907 by President Theodore Roosevelt was actually controlled by the state. 

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.

Ducey argued a "lack of planning and action from the Biden administration demonstrates that border states like Arizona cannot rely on the federal government to ensure its security. The suit filed in the U.S. District Court for the District of Arizona intended to resolve the state’s authority to protect its citizens granted to it by the U.S. Constitution."

However, on Wednesday, Pettigrew noted the Roosevelt Reservation predates Arizona's statehood. In 1910, Congress moved to add Arizona as a state, and as part of this agreement, state officials agreed to "declare that they forever disclaim all right and title to the unappropriated and un-granted public lands lying within the boundaries thereof," which includes the easement along the U.S.-Mexico border.

As Ducey pushes for barriers, environmentalists push back

On Sunday, Nov. 20, McSpadden and Kate Scott—the founder of the Madrean Archipelago Wildlife Center—assembled a small corps of people and visited the container wall. Akin to blocks left by a child, the containers jumbled along a messy line from Montezuma Ridge down into the valley. In some spots, the contractors smashed through small oaks, while in other areas, they'd peeled back sections of the grasslands to carve a relentless road.

While the containers are bolted together, large gaps remained between them as they rambled over the terrain, and the contractors had simply welded metal plates in place. In one section, a large 100-meter wide gap had been left where the terrain made adding a container impossible. On the four-string barbed wire that once marked the Arizona-Mexico border, and just beyond the "Normandy-style" barriers of thick steel left to keep vehicle from crossing, there was a wool blanket left to rot in the wind.

"I'm really worried that the Great Junk Wall of Ducey will make it hard to remember what the Huachuca Mountains and the San Rafael Valley really are: a promise of a wilder world," said McSpadden in November. "These are some of the last, best ecosystem complexes we have in the borderlands and somehow they’ve become of such little consequence to those in power. This beautiful, biodiverse garden of Eden we have out here just keeps gets chewed up by the right wing fear machine piece by piece. This area is habitat for ocelots, bears, jaguars, pumas, pronghorn — but for how long?"

The barriers cut across the grasslands of the San Rafael Valley, widely considered one of the richest and important conservation lands in Southern Arizona, home to dozens of animals and a crossing point for dozens more.

"These shipping containers are a shameless publicity stunt that will jeopardize the survival of endangered wildlife," said Silver in October. "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."

In November, McSpadden also ruefully there had been little federal action. "The severing of this critical wildlife corridor is a catastrophic. For the government to be so silent while this destruction goes on and on is behinds words for me."

"Ducey’s actions are unlawful and can not stand," said Scott. "Make no mistake we will continue to raise our voices until the construction stops. For if we don’t who will?"

"We need decisive action from the USDA, USFS, and Department of Justice to stop the illegal destruction and remove the shipping containers," Scott wrote. "Every day, every hour the excavating bulldozing, pounding, uprooting, mangling destruction continues in the Coronado National Forest."

Scott also criticized a move by the Forest Service in Nov. 30 to warn people about the "unauthorized project" telling people to avoid a forest service road.

"Until the situation is resolved, visitors to the Coronado National Forest, including those seeking to recreate, hunt, or otherwise collect fuelwood, should refrain from entering the area where the State's activities are taking place or otherwise exercise caution when traveling to the area," wrote Starr Farrell,  a spokeswoman for the national forest.

The state's actions are illegal, Scott said. "This is our national forest and we have to stay away? This is too weak a position to take at this juncture. The public safety issue goes far beyond Forest Service Road 61. These truckers are driving at unsafe excessive rates of speeds on highways leading to the border construction area."

"It has impacted me personally and my neighbors who live nearby," she added. "We need much stronger action taken before someone gets hurt. The rule of law must be followed and we the people will not be intimidated or dissuaded from enjoying our beautiful borderlands within the Coronado National Forest."

Over the last four weeks, the protestors kept their vigil, halting progress.

On Twitter, Scott wrote that on Wednesday, containers were "hastily removed," requiring the closure of land on Highway 90. "Protectors of the Borderlands have halted construction," she wrote.

containers 'temporary'

In January 2021, U.S. Customs and Border Protection said it spent $15 billion to build 452 miles of new barriers, including 351 miles of new "primary" wall to replace "dilapidated and/or outdated" walls, along with 21 miles of secondary wall during the Trump administration. CBP also built 80 miles of new barriers. Much of this work was completed in Southern Arizona, where the Trump administration forged ahead of construction on federally-protected land, building dozens of miles of barriers along the Organ Pipe Cactus National Monument, the Cabeza Prieta National Wildlife Refuge, the Coronado National Forest, and the San Pedro Riparian National Conservation Area.

While President Joe Biden said he would halt wall construction and did so after his inauguration in January 2021, DHS announced later that December that the agency would close gaps and add gates to certain sections, along with some remediation efforts.

"In January 2021, when the federal government abruptly halted border wall construction, our forests and public lands in Arizona quickly became strewn with abandoned clothing and property, and an ever-increasing number of migrants who continue to flow into the state," Ducey told the federal government, adding this "necessitated the state to take urgent action and erect a temporary border barrier."

"Arizona's border barrier was always intended to be a temporary solution until the federal government erects a permanent solution," Ducey wrote. "In fact, following our previous discussion, construction has ceased. Arizona and contractors stand ready to assist in the removal of the barriers, but the federal government owes it to Arizonans and all Americans to release a timeline on when construction will begin and details about how it will secure the border while construction in underway."

In August, the Republican governor said he issued an executive order directing the Arizona Department of Emergency and Military Affairs to "immediately fill the gaps" in the Yuma border wall,  "fortifying" it with 60 cargo containers stacked two high, creating a 22-feet high barrier "reinforced" with concertina wire at the top.

Ducey's office included two photos in a press release, showing construction vehicles maneuvering cargo containers into position near an irrigation canal in the area. Ducey's office said the effort will cost about $6 million, and is part of the $335 million authorized by the Arizona Border Security Fund passed by the state Legislature and signed into law earlier this year.

In fact, after the effort began, the governor's office moved to close additional gaps adding more than $10 million to the cost.

A contract, made available to TucsonSentinel.com showed state officials plan to spend nearly $123.6 million on border barriers and has engaged AshBritt—a company that focusing on emergency management and disaster recovery—to conduct the work.

The contract shows the state purchased 2,770 containers for the Cochise County project at a cost of $18 million. The state planned to spend another $49 million on labor, around $15 million on transportation, and nearly $9 million on "mobilization" for the crews building the barriers. 

The contract also includes a $15 million project near Nogales that was apparently abandoned. The "Nogales Section Barriers" include over $1 million to order 168 containers, and nearly $10 million in labor, as well as $2.9 million on "mobilization" for the crews.

In August, Ducey's administration said they had began installing shipping containers along the Colorado River on land managed by the Bureau of Reclamation and within the boundaries of the Cocopah Indian Reservation. Contractors placed 42 shipping containers along one stretch of the border, and another 80 in a separate section, all without federal approval.

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."

In fact, while Ducey's project was moving forward, 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."

In the lawsuit Wednesday, Pettigrew wrote Arizona officials decided to forge ahead while knowing the construction lacked permits. In mid-September, officials with AZDEMA contacted the Forest Service and sought approval to install barriers along National Forest land. The Forest Service replied, telling AZDEMA officials they needed permits and federal approval. However, state officials decided to ignore the Forest Service and on Oct. 5, 2022 they began placing containers on staging grounds in the Coronado National Forest.

On Oct. 6, Kerwin Dewberry, the Forest Supervisor for Coronado, sent a letter to Maj. Gen. Kerry L. Muehlenbeck, the director of DEMA about the presence of the containers, equipment, and private security personnel. "The Forest Service did not authorize this occupancy and use," Dewberry wrote.

Muehlenbeck responded sharply, telling Dewberry AZDEMA had attempted to work with your agency to address the issues on Arizona's southern border." Muehlenbeck claimed the containers were necessary because 10 miles of the border was "wide open," and she complained about the current Normandy-style barriers—installed more than a decade ago, and designed to keep vehicles from driving across the border.

"Although your agency has participated in some calls with Arizona officials, no action has been taken to address the state's concerns," Muehlenbeck wrote.  "Due to the lack of response and pursuant to the directive by Governor Ducey, work will commence to close the referenced gap to ensure the safety of Arizona citizens," she wrote.

Pettigrew noted AshBritt graded and cleared of vegetation at least two staging areas on National Forest System lands as part of its work.

containers a 'thoughtless exercise in politics'

There's little evidence Ducey's barriers have worked to blunt encounters in Arizona.

In the Yuma Sector, which straddles the Colorado River, encounters have risen 14.6 percent this October, compared to a year earlier. Encounters in the Tucson Sector, which runs from the Yuma County line to the New Mexico border, increased 19.5 percent from last October to last month. Overall, apprehensions have increased 28.4 percent across the nation, with some sectors like El Paso nearly tripling the number of people taken into custody in October, compared to a year earlier.

An official with CBP, who was not authorized to speak on the record, called the container wall in Cochise County a "thoughtless exercise in politics."

"I just don't see how this is going to make a damned bit of difference," they said.

A senior Border Patrol agent told TucsonSentinel walls were "an important part of tactical infrastructure" but was frustrated with the container wall. "Here's the thing, and lot of people agree with me here, walls work. Sure, they're a speed-bump for people coming in, but where they really help is keeping people from running back into Mexico if we're close to apprehending them," said a senior Border Patrol agent. "But, their plan is ridiculous."

"My guys need to be able to see what's on the other side of the wall. We told the Trump administration about this, and we'll keep saying this—we need to be able to identify threats on the other side—and the last thing we need is a wall made of containers. Not only can we not see what's behind the containers, we might not even be able to see what's on top. This was the problem with the old landing mat fencing, and why we've pushed hard for the bollards."

A Border Patrol agent said he was worried the containers might break loose in heavy rain storms that can carry hundreds of gallons of flood water across the line. "The last thing I need is for one of my guys to barrel into a container because it shifted after the monsoons. We install flood gates for a reason."