County wants high court to rule on fence lawsuit
By Brandi Grissom / Austin Bureau
Article Launched: 09/24/2008 12:00:00 AM MDT

AUSTIN -- El Paso County will ask the nation's highest court to rule in a case officials hope will halt construction of fencing on the U.S.-Mexico border, County Attorney Jose Rodriguez said Tuesday.

"This is an unconstitutional delegation of authority," Rodriguez said, referring to U.S. Department of Homeland Security Secretary Michael Chertoff's use of waivers to circumvent more than 30 laws that could slow construction of the 670-mile fence.

The county, along with the city, the Tigua tribe, the local water irrigation district and environmental groups filed the lawsuit in June. The suit alleges that Chertoff's use of waivers to complete the fence by the end of this year was unconstitutional.

U.S. District Judge Frank Montalvo dismissed the lawsuit earlier this month, ruling that Chertoff did not violate the Constitution "because 'Congress constitutionally delegated its authority in the Waiver Legislation.' "

Rodriguez said the next legal step to continue the fight was to ask the U.S. Supreme Court to review the case.

"We definitely are proceeding with the appeal," he said.

The lawsuit might not stop the fence building, but El Paso County Commissioner Veronica Escobar said the case makes an important statement.

"If government can find a reason to waive our constitutional rights on this

occasion, then it certainly opens the door for them to do that again," Escobar said.
Mayor John Cook said the City Council has not yet voted to continue pursuing the case, but he expected that it would.

Even if fence construction is not stopped, he said, the lawsuit would help the city understand which federal laws apply on the border.

"The point is we don't know which laws we can enforce," Cook said.

Tigua Lt. Gov. Carlos Hisa said the fencing project would impede the tribe's access to water in the Rio Grande that the Tiguas have used for centuries to farm and conduct ceremonies.

"We just want our concerns to be heard and to be taken into consideration before the fence goes up," Hisa said. "We've basically been asked to shut up."

El Paso County Water Improvement District No. 1 joined the lawsuit because the fence would impede its access to maintain eight miles of canals that provide irrigation water to about 20,000 acres of farmland in the Lower Valley, said executive director Jesus "Chuy" Reyes.

"We need to do everything we have to do to protect the water users," he said.

Department of Homeland Security officials did not return phone calls seeking comment for this story.

The El Paso County lawsuit is similar to one filed by the Sierra Club and Defenders of Wildlife over Chert off's use of waivers to build fencing in Arizona.

The Supreme Court declined earlier this year to hear that case.

Oliver Bernstein, Sierra Club spokesman, said the El Paso lawsuit might have a better chance because the timing and circumstances are different.

Fence-building expenses have grown higher than the DHS expected. The Bush administration is drawing to a close. The federal government is considering spending nearly $1 trillion in taxpayer money to buy bad loans that have put the nation in a financial crisis.

"More opposition and more attention to this project is going to help slow it down," Bernstein said, "so that hopefully a more rational administration can look for other ways to balance border security and the environment and human rights."


Brandi Grissom may be reached at bgrissom@elpasotimes.com; 512-479-6606.


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