Ducey sounds retreat on shipping container barrier at Az-Mx border

Arizona Gov. Doug Ducey said the state will halt placing shipping containers along the Arizona-Mexico border, and begin removing hundreds of the 8,000-lb. steel boxes set up as makeshift barriers from federal lands by Jan. 4, according to a court document filed late Wednesday.

In a 4-page stipulation filed jointly by Arizona officials and U.S. Attorney of Arizona Gary M. Restaino, Ducey said the state agreed "to maintain its cessation of activity" on land managed by the National Forest System in Cochise County. This includes halting the installation of hundreds of the 40-foot-long containers, as well as equipment staging, roadwork, welding of panels, and the installation of "razor" wire along the top of the barriers.

State officials also said they would "confer with representatives from the U.S. Forest Service for safety purposes and to avoid and minimize damage to the United States’ lands, properties, and natural resources."

They added "to the extent feasible and so as not to cause damage to United States’ lands, properties, and natural resources," Arizona officials will "remove all previously installed shipping containers and associated equipment, materials, vehicles, and other objects" from land near Yuma," including from lands managed by the U.S. Bureau of Reclamation near the Morelos Dam, and the Cocopah Indian Tribe’s West Reservation.

Ducey's term as governor expires at the end of the year.

U.S. Rep. Raul Grijalva said Thursday that building what he called Ducey's "illegal junkyard border wall" was "an egregious overreach by the state of Arizona and I’m glad to see it’s been ordered to be dismantled."

Just a week ago, federal lawyers filed a prelude to a lawsuit, arguing the container wall in the Coronado National Forest is an "unlawful trespasses" that violates the U.S. Constitution.

As part of their filing, they asked a judge to block further construction and award damages to cover the cost of removing the containers. In the complaint, 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 Restaino 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.

Ducey's contractors 'heading for the hills'

The announcement was a victory for a small band of environmentalists and local residents who spent the last few weeks protesting construction in the Coronado Forrest, often occupying roads and staging areas to halt the construction effort, including intentionally blocking trucks as contractors attempted to install the 40-foot-long containers. While Ducey's administration sought to install nearly 2,800 cargo containers across a 10-mile stretch of the border in Cochise County, spending around $95 million for the project, protestors were able to stall contractors to just 3 miles.

"Our effort was incredibly successful," said Russ McSpadden, southwest conservation advocate at Tucson's Center for Biological Diversity. "We beat back this flurry of wall building—at least for now."

McSpadden said he toured the container wall on Monday, and noticed contractors had not only stopped construction, but were actively removing the containers from a staging yard near Whetstone, hauling the containers back to a state prison complex near Tucson.

"Everything looks like Ducey's been heading for the hills with his containers," McSpadden said.

Calling Ducey a "lame duck" as his administration winds down, McSpadden was more circumspect about the future.

"I measure this victory for now," he said. "The borderlands are always up on the chopping block—they are a sacrifice zone for right-wing politics."

McSpadden, joined by Kate Scott— the founder of the Madrean Archipelago Wildlife Center—and dozens of others began protesting the container wall after the Thanksgiving holiday, spending the last few weeks in often freezing conditions to hamper construction. Scott said she was proud of the "people power" used to stop the construction, and said she hoped to keep the momentum going. "The power we've unleashed that doesn't want to go back into the bottle," she said.

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," McSpadden said 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.

On Sunday, as the protest wound down, it was clear some of the containers were blocking ephemeral streams that eventually flow to the San Pedro River, and a pond full of ice chunks sat at the foot of one section of containers. Nearby, a man-sized gap meant it was easy for people to pass through Ducey's barrier, if they were unwilling to walk to the barrier's edges, or unable to simply climb to the top of the metal boxes.

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 his new effort to containers in Cochise County.

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.

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 in a letter, adding this "necessitated the state to take urgent action and erect a temporary border barrier."

A contract, made available to TucsonSentinel.com showed state officials plan to spend nearly $123.6 million on border barriers and hired 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, and 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. It remains unclear how much the state has spent, and how the cost of removing the barriers would affect the overall costs for the state's "temporary" barrier.

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.

Ducey challenges feds on Roosevelt Reservation

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.

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.

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 near the dam, as well as 42 shipping containers on land that's part of the Cocopah West Reservation. In a letter Jackylnn Gould, BOR regional director, objected to the construction telling 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 also told Ducey his temporary barriers would hamper a federal effort to close those gaps.

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."

After Ducey begin construction in Cochise County, an official with CBP—who was not authorized to speak on the record—called the container wall a "thoughtless exercise in politics."

"I just don't see how this is going to make a damned bit of difference," the CBP source told the Sentinel.

"Taxpayers are once again on the hook for the removal of Gov. Ducey’s illegal junkyard border wall which never should have been built on federal and tribal lands in the first place," Rep. Grijalva said. "The remaining shipping containers will have to be dealt with under the new administration and I look forward to working with Gov.-elect Hobbs on this issue."

Ducey's attempt to build the container walls comes after CBP 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.

Despite the costs, 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.