Thread: Judge delays San Pedro border fence construction

Published: 10.10.2007

Judge delays San Pedro border fence construction
By Howard Fischer
CAPITOL MEDIA SERVICES
A federal judge late Wednesday temporarily blocked further work on a new border fence and barrier through the San Pedro Riparian National Conservation Area.
U.S. District Court Judge Ellen Huvelle accepted the arguments by Defenders of Wildlife and the Sierra Club that construction, which already has started, needs to be halted immediately. She concluded the organizations showed there was strong evidence of irreparable environmental damage if the project is completed as planned.
The judge also noted the assessment of environmental affects of the project prepared by the Bureau of Land Management took just three weeks in August, with no opportunity for public comment; construction started less than a month later. She questioned whether federal agencies were deliberately rushing the process and the construction to get it done before anyone had a chance to object.
But Huvelle's ruling does not mean the fence -- or something like it -- never will be built.
Instead, it simply buys some time for the two groups to prepare legal arguments that federal agencies did not follow environmental laws in designing the nearly two-mile stretch that goes through the conservation area. The judge ultimately still could give the go-ahead to complete the work.
Brian Segee, an attorney for Defenders of Wildlife, said Wednesday's decision is still a victory.
He said Huvelle's decision to issue the temporary restraining order recognizes "the irreparable harm that the border wall construction would cause.''
But Russ Knocke, spokesman for the U.S. Department of Homeland Security, said his agency is convinced "that this one mile plus area along the Arizona border will not be adversely impacted by fence construction.'' Knocke said an appeal is being considered.
"Arizonans, and quite frankly Americans everywhere, have been clear that they want more border security,'' he said. "Today's ruling will not diminish our resolve to deliver it.''
Central to the legal fight is the decision by the U.S. Bureau of Land Management, which manages the conservation area, to conduct only an informal "environmental assessment'' of the effect of the fence design on the area.
That assessment, which took just three weeks and had no opportunity for public input, proposes an impenetrable fence through much of the conservation area. It also concluded there would be no harm to the environment if a vehicle barrier built from old railroad ties were used instead of a fence in the 1,500 feet of the San Pedro River floodway as well as washes leading into it.
It is that plan which the Department of Homeland Security started constructing about two weeks ago, just a month after the assessment was completed.
Segee, however, said federal law requires a full-blown "environmental impact statement'' for all "major federal actions significantly affecting the quality of the human environment.'' He said such a study would show that what Homeland Security is constructing will cause additional sedimentation and erosion, wiping out plants and, in turn, affecting the birds and animals who live in and around the conservation area.
Gregory Page, an assistant U.S. attorney who handles environmental cases for the government, said an assessment is legally sufficient.
But Segee said the judge noted during Wednesday's hearing that the government already has agreed to prepare an entire environmental impact statement for a similar project in the Rio Grande Valley of Texas.
http://www.azstarnet.com/sn/printDS/205672

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U.S. District Court Judge Ellen Huvelle accepted the arguments by Defenders of Wildlife and the Sierra Club that construction, which already has started, needs to be halted immediately. She concluded the organizations showed there was strong evidence of irreparable environmental damage if the project is completed as planned

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Do these people have a clue? Have they seen the paths of litter, clothing, diapers, human waste left on the border....this mess will continue until we build the fence and keep them from coming over!
What gets me are these loopy judges...it seem that whatever is good for America is always blocked or struck down!!
We want the fence built ...they move to stop til there is further evidence!
We want the "Mexican truck project" blocked ...they proceed with it, regardless of all safety precautions being met!
Term limits will be the only way to stop these activist judges from ruining the country!

Title of this article seems misleading.
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Judge could halt work on border fence

By Howard Fischer/Capitol Media Services

Oct 13, 2007

PHOENIX - The nation's top security official may use his power to unilaterally trump a federal court order halting construction of a fence on a stretch of the Arizona-Mexico border.

Russ Knocke, press aide to Homeland Security Secretary Michael Chertoff, told Capitol Media Services his boss is weighin whether to invoke a section of federal law that allows him to exempt border construction projects from any law at all. Tha includes requirements for studies on environmental impacts of federally funded projects.

The move is not unprecedented: Chertoff used the power at least twice since it was granted.

In 2005 he decided to build fencing near San Diego without conducting environmental studies. And just this past January he issued a waiver from all laws for a project along the edge of the Barry M. Goldwater Range in southwest Arizona.

The possibility of Chertoff again exempting his agency from environmental laws comes days after a federal judge in Washington stopped construction of a nearly two mile stretch of fence at the foot of the San Pedro Riparian National Conservation Area. The restraining order gives two environmental groups time to convince

Judge Ellen Huvelle that plans for vehicle barriers in the river's floodway and washes leading into it will cause erosion and sedimentation that will harm the environment and affect species dependent on the river. Advertisement

Defenders of Wildlife and the Sierra Club also contends the Bureau of Land Management, which controls the area, did not seek public input on the project in performing an "environmental assessment'' that took just three weeks. They contend the BLM should have prepared a more formal "environmental impact statement.''

Chertoff, however, can make the entire lawsuit - and judge's ruling - disappear simply by declaring the project exempt from the law the groups used to sue.

Knocke said Chertoff believes the lawsuit is without merit, saying the BLM's assessment concluded the project would not have adverse impact to the area.

"We care about the border environment as much as anyone,'' Knocke said. "But when weighing a lizard in the balance with human lives, this border infrastructure project is the obvious choice.''

Attorneys for Chertoff also contend environmental damage from illegal border crossers is greater than anything that would occur from the barriers.

Nothing short of congressional action could stop Chertoff from exempting the San Pedro project from the environmental laws. But even Rep. Gabrielle Giffords, D-Ariz., whose district includes the river, does not support repeal of Chertoff's power.

"Border security has to be a top concern in a state like this,'' said C.J. Karamargin, Giffords' press aide. He said the congresswoman believes federal officials "should have the tools they need to do the job.''

But Bob Dreher, vice president for conservation law for Defenders of Wildlife, said what might stop Chertoff from exempting the project from federal laws is "They have to do I think the politically costly thing of publicly saying, 'We're above the law,' '' he said. He said that might be what kept Chertoff from waiving environmental laws for a similar border project in Texas.

While Giffords is unwilling to repeal the law, she is willing to apply pressure.

She is one of five members of Congress who wrote Chertoff last week asking him to to delay further work on the project, prepare a full environmental impact statement and conduct public hearings, something not done before construction began late last month.

"Our communities support safe and secure borders and simply ask for adequate time to share their concerns with their government, as they have a right to do,'' reads the letter signed by Giffords as well as Rep. Raul Grijalva, also a Tucson Democrat. Three members of the Texas congressional delegation also signed that letter.

In his January decision dealing with the Goldwater range, Chertoff declared that the high number of people entering th country illegally through that stretch of the desert created an immediate need to build not just fencing but also vehicle barriers, towers, sensors and cameras. That, he said, exemptions not just from the National Environmental Policy Act - the law being used by the two environmental groups to sue over the San Pedro project - but also the Endangered Species Act, the Clean Water Act, the Wilderness Act, the National Historic Preservation Act and the National Wildlife Refuge Systems Administration Act.

And Chertoff also exempted the project from another law which requires his agency to follow certain administrative procedures.

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