Thread: Court rejects challenge to Arizona border fence

Court rejects challenge to Arizona border fence
Mon Jun 23, 2008 10:25am EDT



WASHINGTON (Reuters) - The Supreme Court rejected on Monday a legal challenge by two environmental groups to the U.S. Homeland Security secretary's decision to waive 19 federal laws so a fence could be built on the Arizona-Mexico border.

The high court refused to hear an appeal by Defenders of Wildlife and the Sierra Club challenging a 2005 law that Secretary Michael Chertoff invoked on the grounds that it violated the constitutional separation of powers principles.

The Republican-led Congress in 2005 gave Chertoff the power to waive environmental and other laws to build fences and other border barriers in an effort to stop the flow of illegal immigrants into the United States.

Chertoff has issued a number of waivers for the planned barrier fence along the Mexican border. In April, he issued waivers for various projects across nearly 500 miles in California, Arizona, New Mexico and Texas.

The two environmental groups argued that Chertoff's waiver in their case represented an unconstitutional repeal of federal laws. The waiver provision amounted to an unconstitutional delegation of legislative power to Chertoff, with only limited judicial review of his decision, they said.

In the Arizona case, Chertoff issued the waiver in October after a federal judge ruled for the environmental groups by temporarily blocking further construction of the fence in a natural conservation area.

The fence was being built in southeastern Arizona in the San Pedro Riparian National Conservation Area, which the environmental groups describe as unique and biologically diverse, with more than 250 species of migratory birds.

Under the law, Chertoff has the sole discretion to waive all legal requirements when he decides it is necessary to speed up construction of barriers along the border. Congress also set limited, streamlined judicial review of such waivers.

A U.S. district judge may hear a challenge only if it alleges a constitutional violation and has been brought within 60 days of Chertoff's waiver.

Any ruling by the judge cannot be appealed to a U.S. appeals court, the typical next step in the judicial system. It can be reviewed only by the Supreme Court.

Attorneys for the two environmental groups said the case presented legally significant and practically important questions, as the law involved virtually unprecedented restriction of appellate review.

Fourteen Democratic members of the House of Representatives, including the chairmen of the homeland security, the judiciary and the intelligence committees, supported the appeal.

Justice Department attorneys urged the Supreme Court to reject the appeal. They said a ruling in the case by a federal judge rejecting the challenge was correct and does not conflict with any decision by the high court or any other court.

The Supreme Court sided with the Justice Department and denied the appeal without comment.

(Editing by Doina Chiacu)


http://www.reuters.com/article/newsOne/ ... 7320080623

One for our side. Now they may bring down the Second Amendment decision today.

This was a good win....too bad the 9th circuit doesn't get it.

Another victory! So the fence must go up.

Hope this starts a trend

Originally Posted by jimpasz

Hope this starts a trend

Love that avatar jim. LOL

Originally Posted by Gogo

Originally Posted by jimpasz

Hope this starts a trend

Love that avatar jim. LOL

Thanks Gogo I stumbled upon it

Supreme Court rejects border fence challenge

By Kevin Sieff, The Brownsville Herald
June 23, 2008 - 10:56PM

The Supreme Court's refusal Monday to question the federal government's expedited approach toward erecting the border fence crushed one of the most promising attempts to delay the barrier in South Texas.



Opponents of the fence are now left to search for another viable judicial or legislative approach to put brakes on the government's plan.



"Unfortunately, the decision leaves one person, (Homeland Security Secretary) Michael Chertoff, with extraordinary power to waive all laws designed to protect natural resources," said Oliver Bernstein, a spokesman for National Sierra Club, one of the groups that filed the lawsuit.



Though several lawsuits and pending congressional statutes aimed against the fence's architects remain, the Sierra Club's case - filed in conjunction with Defenders of Wildlife - was the first piece of litigation that broached the barrier's impact on environmental resources along the border.



"The decision is disappointing," said Matt Clark, southwest representative for Defenders of Wildlife. "It's a sad day for democracy."



In late May, Frontera Audubon Society, Friends of the Santa Ana National Wildlife Refuge and Friends of the Laguna Atascosa National Wildlife Refuge filed suit in El Paso, questioning the 36 environmental laws that Chertoff waived to speed up fence construction.



Unlike the Sierra Club lawsuit, the second case focuses specifically on the fence's impact on the Lower Rio Grande Valley National Wildlife Refuge. But after the Supreme Court's decision Monday, it faces an uncertain future.



"The court seems to prefer that Congress go back and revoke the waiver authority," Bernstein said.



The Borderlands Conservation and Security Act, introduced by U.S. Rep. Raul Grijalva, D-Ariz, does just that. But the bill currently sits idle with the Subcommittee on Border, Maritime and Global Counterterrorism.



Another remaining lawsuit filed by the Texas Border Coalition, a group of mayors, judges and other officials, has also been filed against the Department of Homeland Security. TBC's lawsuit, though not focused on environmental concerns, questions the process by which the government has gone about acquiring land to build the fence.



TBC attorney Peter Schey said Monday's Supreme Court decision would not affect the group's lawsuit.



"The law that our case relies upon is the one law (Homeland Security) Secretary Michael Chertoff cannot waive because it is the law that gives him the power to condemn land in the first place," Schey said.



TBC's case also names several of the government's other alleged failures, including its refusal to provide for those whom the barrier would displace, he said.



But with the fence's construction slated to start in South Texas in July, opponents don't have much time to reformulate their strategy.



Supporters of both remaining lawsuits, environmentalists and politicians alike, suggest that government is going to see a lot more resistance as it moves into South Texas.



"They don't seem to have a good understanding of the Texas border, " the Sierra Club's Bernstein said. "And they still haven't come up with a plan to address that."


www.brownsvilleherald.com

June 24, 2008, 12:13AM
High court ruling puts border fence back on the fast track

Supreme Court refuses to hear environmental groups' challenge


By GARY MARTIN
San Antonio Express-news

WASHINGTON — The Supreme Court on Monday gave the green light to the Bush administration to press forward with plans to complete a controversial fence along the U.S.-Mexico border.

The high court, without comment, declined to hear an appeal from two environmental groups — the Sierra Club and the Defenders of Wildlife. They had filed suit to reverse a decision by the Homeland Security secretary, Michael Chertoff, to waive environmental and other laws and regulations that would have slowed construction of 670 miles of border fencing by the end of the year.

Some 331 miles of fencing have been constructed on the project that, when completed, will include segments from just south of San Diego to Brownsville.

Fourteen Democratic members of Congress supported the appeal, including four Texas lawmakers whose congressional districts include the border: Rep. Silvestre Reyes of El Paso; Rep. Solomon Ortiz of Corpus Christi; Rep. Ruben Hinojosa of Mercedes; and Rep. Ciro Rodriguez of San Antonio.

Rodriguez said he was disappointed with the court's decision and with Homeland Security officials for failing to consult with border landowners and cities about the construction.

"In their efforts to protect Texas and our nation from things like violence, drug smuggling and terrorism, DHS needs to outsmart the criminals and not the landowners on the border," Rodriguez said.


Consultation required
Last year, Rodriguez and Sen. Kay Bailey Hutchison, R-Texas, inserted legislative language into a spending bill that would require the department to consult with local authorities about the fence. That consultation is still required.

Chertoff, who has set aside some environmental restrictions to speed fence construction, has said his department has held numerous consultations with local officials.

"We have had multiple meetings with some of the most bitter critics, people that we have talked to again and again," he told the Houston Chronicle's Editorial Board on June 6. "Now consultation means we try to see if we can work out an accommodation. It doesn't mean we consult for two years, it doesn't mean that a local official has a veto."


'Great Wall of Texas'

The Texas Border Coalition, made up of border mayors and county judges from 10 Texas border communities from Brownsville to El Paso, filed a separate lawsuit in May against Chertoff's department, claiming the property rights of landowners had been violated.

Eagle Pass Mayor Chad Foster said the lawsuit was filed because Chertoff had gone too far to build "this feel-good but ineffective Great Wall of Texas."

The Border Coalition's lawsuit is pending before a court in Washington.

Chertoff insists that all 670 miles of border fence cannot be completed without the waivers that allow the department to cut through bureaucratic red tape. Another lawsuit against Chertoff and the department on the constitutionality of the waivers is pending in El Paso.

But Brian Segee, a lawyer representing the Defenders of Wildlife, said Monday's Supreme Court decision is a setback to that challenge as well, essentially clearing the way for the wall's completion.


Endangered cats

To expedite the building of fencing in Texas, Chertoff signed a decree in April to waive 27 laws to construct a flood levee-fence project in Hidalgo County, in the lower Rio Grande Valley.

Environmentalists oppose the project, citing threats to endangered cats — the ocelot and the jaguarundi — in the Lower Rio Grande National Wildlife Refuge.

But a law passed by Congress in 2005 contained language granting the Homeland Security secretary the authority to waive laws and regulations to build the border fence without review.

The case rejected by the court involved a 2-mile section of fence in the San Pedro Riparian National Conservation Area near Naco, Ariz. The section has since been built, The Associated Press reported.

Rep. Lamar Smith of San Antonio, the ranking Republican on the House Judiciary Committee, said the Supreme Court decision was a "victory for the American people." Smith accused environmental groups of trying to "slow down the construction process."

http://www.chron.com/disp/story.mpl/met ... 52853.html

2 hours, 40 minutes ago

Environmentalists upset with ruling on border fence
June 24th, 2008 @ 8:04am
by Sandra Haros/KTAR

Environmentalists have condemned a U.S. Supreme Court ruling which upheld the Bush Administration's power to waive regulations to speed construction of a fence along the U.S.-Mexican border.

Rob Smith of the Sierra Club said Congress needs to step in.

``Congress needs to clarify the law that allows the government to go ahed and do this and say, you can't just throw all of our laws, some 30-some, out the window. How can you say that you're enforcing the law when, in fact, you're waiving the laws from enforcement?"

The case before the high court involved a two-mile section of fence built in the San Pedro Riparian National Conservation Area near Naco, Arizona. The court ruled it was legal for the Bush Administration to waive environmental laws and regulations to build the border fence.

``Our concern with building the border wall through some of the most remote places is that it disrupts the native animals that flow back and forth -- like Sonoran pronghorn antelopes, like jaguards, like Mexican wolves, things like that. Plus it puts a wall through the middle of really wild and nice places, and we also don't think the wall has turned out to be effective."

Smith was not the only one upset by the Supreme court ruling.

``I am extremely disappointed in the court's decision,'' Rep. Bennie Thompson, D-Miss., said. ``This waiver will only prolong the department from addressing the real issue: their lack of a comprehensive border security plan.''

Thompson chairs the House Homeland Security Committee. He and 13 other House democrats - including six other committee chairs - filed a brief in support of the environmentalists' appeal.

Earlier this year, Homeland Security Director Michael Chertoff waived more than 30 laws and regulations in an effort to finish building 670 miles of fence along the southwest border. Administration officials have said that invoking the legal waivers - which Congress authorized in 1996 and 2005 laws - will cut through bureaucratic red tape and sidestep environmental laws that currently stand in the way of fence construction.








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