By Terri Jo Neff |

Several federal government defendants have filed a motion to dismiss the lawsuit recently filed by Gov. Doug Ducey in his attempt to determine who has jurisdiction over land near the border within the State of Arizona.

On Wednesday, the U.S. Forest Service and its Chief Randy Moore, the U.S. Bureau of Reclamation and its Commissioner Camille Calimlim, and U.S. Secretary of Agriculture Thomas J. Vilsack argued in the motion that Ducey’s actions on U.S. lands “directly conflict” with numerous federal laws.

The motion to dismiss also argues that Arizona’s concurrent jurisdiction to land at the border does not convey a right for Ducey to occupy and use federal lands without federal authority. As a result, the State of Arizona must yield to the United States’ plenary authority over the lands, the motion argues.

Ducey will have an opportunity to respond to the motion to dismiss, after which U.S. District Senior Judge David Campbell will likely hold oral arguments in early 2023.

Also on Wednesday, Campbell granted the Center for Biological Diversity permissive intervention, finding the group has defenses to Ducey’s lawsuit “that share with the main action a common question of law or fact — whether the federal government may act with respect to the border lands of Arizona, including in the enforcement of federal environmental statutes.”

However, Campbell issued a warning to attorneys for the Center that the purpose of granting intervenor status “is not to convert this case into an environmental enforcement action or launch into broad ranging discovery on environmental issues.”

Instead, the purposed is to enable Intervenor to provide input on the claims and issues raised by Ducey. The judge further noted he will hold the Center “to its commitment not to unduly complicate this case, delay the proceedings, inject irrelevant issues, or repeat arguments made by the federal defendants.”

The Center has until Dec. 2 to file an answer in the case.

Ducey filed the six-claim lawsuit in October in an attempt to have the U.S. District Court determine important questions of law regarding jurisdiction over land near the border within the State of Arizona and the state’s own interests in protecting itself in the face of the crisis brought on by countless migrants illegally crossing unsecured areas of the border without action by the federal government.

The inaction of the Biden administration has resulted in “a mix of drug, crime, and humanitarian issues the State has never experienced at such a significant magnitude,” according to Ducey’s lawsuit.

Before filing the lawsuit, Arizona officials pleaded many time with the Biden administration to act, “but such pleas have been either ignored, dismissed, or unreasonably delayed,” the lawsuit notes. “Rather than cooperate and work together with Arizona, the federal government has taken a bureaucratic and adversarial role.”

Ducey responded to this inaction by directing that some gaps in the border wall be temporarily filled with double-stacked storage containers that will help control movement along the border.

The move got the attention of the White House, which now claims Ducey and the State do not have authority to undertake these types of protective actions. The six-claim lawsuit seeks answers to the authority of a governor to issue a state of emergency to protect the lives and welfare of Arizona citizens and their property.

In response to the lawsuit, the Center filed a motion earlier this month seeking to intervene in the case as a defendant along with the named federal defendants.

The Center contends the temporary barriers put into place by the State will block animal migratory paths as well as streams and washes. It also claims the temporary barrier effort will “trash the Sonoran Desert and public lands” while doing nothing “to prevent people or drugs from crossing the border.”

But the Center also alleges Ducey’s border barrier project is “part of a larger strategy of ongoing border militarization” that ignores damage to “human rights, civil liberties, native lands, local businesses, and international relations.”

Ducey opposed the intervention effort by the Center, while the federal defendants took no position on intervention, except that it be a permissive and not by-right status which can be discontinued by the Court if deemed necessary.