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.
The federal government’s latest southern border data reveals that President Joe Biden set an all-time record for illegal immigrant encounters: over 2.1 million in one fiscal year. Under Biden, there have been over 3.6 million illegal immigrant encounters. That doesn’t include “gotaways,” which are illegal immigrants either directly or indirectly observed but not apprehended.
In all four years under former President Donald Trump, there were just over 2.4 million border encounters. If the border encounters under Biden continue at this rate — an average of over 183,300 a month — there will be over 8.6 million border encounters.
The National Border Patrol Council (NBPC) vice president, Art Del Cueto, told “The Conservative Circus” on Monday that the drug cartels, not Biden, are in charge of the border, and that Biden’s inaction makes him, essentially, their friend.
“Everything gets coordinated through them,” said Del Cueto. “[The drug cartels] have a budget, and their best friend is sitting in the White House today.”
Del Cueto explained that the cartel keeps an eye on border gaps and plans human smuggling nearly a decade ahead.
Del Cueto further explained that the asylum process isn’t safe for the American people. He shared that those awarded asylum are only vetted for crimes committed in America, not their home country.
“We don’t know what crimes they’ve committed in their own country,” said Del Cueto.
In response to the latest border data, Congressman Andy Biggs (R-AZ-05) emphasized again that the border isn’t secure.
The Biden administration claims that the border is secure.
Earlier this month, Vice President Kamala Harris issued that claim to NBC. “We have a secure border in that that [sic] is a priority for any nation, including ours in our administration,” said Harris. “There are still a lot of problems that we are trying to fix, given the deterioration that happened over the last four years. We also have to put in place a law and a plan for a pathway to citizenship.”
However, a group of about 100 illegal immigrants dropped off outside Harris’ Washington, D.C. home last Thursday told Fox News reporters that the consensus among illegal crossers is that there aren’t laws governing the border. The illegal immigrants also acknowledged that they and all the rest of their ilk understand that what they’re doing is illegal.
“Everybody believes that the border is open,” he said. “It is open because we enter. We come in free, no problem. We came illegally, not legally.”
Yet, that same day, White House Press Secretary Karine Jean-Pierre backed Harris’ claim.
“What we stand by is that we are doing everything that we can to make sure that we follow the process that’s been put forth,” said Jean-Pierre. “We agree that the border is secure, but there is still more work to be done.”
The White House’s denial that migrants are walking across the border sparked backlash from Governor Doug Ducey and Border Patrol (BP) leaders.
This week, White House Press Secretary Karine Jean-Pierre claimed that illegal immigrants don’t merely walk across the southern border. Fox News reporter Peter Doocy had asked Jean-Pierre why the unvaccinated traveling by plane were refused admission into the U.S. while unvaccinated illegal immigrants could walk into the U.S. and stay.
“It’s not like somebody walks over — that’s not how [it works],” responded Jean-Pierre.
Jean-Pierre’s denial prompted Ducey to call the White House “clueless.” He stated that the Biden administration’s negligence further affirmed his decision to finish Yuma’s border wall himself. The state closed those gaps last week.
“If only President Biden visited the border, he’d see the mass amount of migrants walking across the border,” wrote Ducey.
The denial prompted similar criticism from the National Border Patrol Council (NBPC). Jean-Pierre’s denial — along with discovery this week of BP Chief Raul Ortiz’s admission in July that Biden’s border policies lacked consequences for illegal immigration — prompted NBPC to demean the Biden administration as the “Barney Fife” administration, a slang term for ineptitude and incompetence.
“[This administration is] importing millions of fraudulent ‘asylum’ seekers,” declared the NBPC. “This mess will take decades to clean up, if it can ever be cleaned up.”
Along with the historic number of illegal crossings, there have been historic highs of drug trafficking. Earlier this month, Customs and Border Patrol (CBP) reported that fentanyl, meth, and heroin seizures increased greatly from June to July.
As AZ Free News reported at the beginning of this month, hard drugs have largely replaced marijuana for drug smugglers. The main substance seized by far is fentanyl.
What’s more, smugglers are now disguising fentanyl with rainbow coloring to look like candy or ecstasy, dubbed “rainbow fentanyl.” On Tuesday, the Drug Enforcement Administration (DEA) issued an official warning that the rainbow fentanyl has been discovered in 18 states. Officials warned that drug traffickers are targeting children and young adults with the rainbow fentanyl to spark addiction.
It appears that the White House isn’t the only leadership sector apparently unconcerned with the state of the border. A source informed the Daily Caller on Monday that Department of Homeland Security (DHS) Secretary Alejandro Mayorkas was vacationing in Maine.
Citing the importance of growing Arizona’s international presence, House Speaker Rusty Bowers hopes a new Ad Hoc Committee on International Affairs will enhance trade opportunities while also strengthening border security.
“The world is an ever-changing place, and it’s important that the State of Arizona be proactive to attract more commerce, education and culture to this beautiful state,” Bowers said this week in announcing formation of the ad hoc committee.
The committee co-chaired by Tim Dunn (R-LD13) and Rep. Cesar Chavez (D-LD15) will organize visits and joint events in Arizona with international dignitaries, while identifying and working with outside organizations to strengthen Arizona’s international relationships. Committee members will also conduct hearings related to foreign trade, international affairs, and border security.
“Whether it be trade, border security or tourism, this committee will be a key force in making Arizona safer and more prosperous,” said Dunn, an agri-businessman who chairs the House Committee on Land, Agriculture & Rural Affairs.
According to the Observatory of Economic Complexity, Arizona had $1.9 billion in trade exports and $2.38 billion in trade imports in September 2021. Between September 2020 and September 2021, exports increased by $327 million (20.7 percent) while imports increased by $221 million (10.2 percent).
For Chavez, international relationships are critical for growing the state’s business, trade, and education sectors.
“I’ve always believed that Arizona is the State of Opportunity because of what can be accomplished in a bipartisan manner,” Chavez said. “Through the work of this ad-hoc committee, I’m certain that we’ll give Arizona its well-deserved global presence.”
Dunn and Chavez will be joined on the committee by Reps. Regina Cobb (R-LD5), Diego Espinoza (D-LD19), Alma Hernandez (D-LD3), Steve Kaiser (R-LD15), Lorenzo Sierra (D-LD19), and Justin Wilmeth (R-LD15).
Our Country is based on the rule of law. From the rights and liberties protected by our Constitution to the statutes enacted by federal and state governments, we are a nation of laws. Unfortunately, the Biden administration has abandoned this principle. The most shocking example is the administration’s refusal to enforce federal immigration laws on our southern border. This dangerous “Open Border Policy” has placed the health and safety of Arizonans in grave danger. The Biden administration has reduced our southern border to a zone of lawlessness run by criminals making billions of dollars from illegal immigration — $7,000 to $8,000 per illegal immigrant. Further, these lawless crooks profit off the sale of lethal drugs such as fentanyl and methamphetamine, all the while raping women, molesting children, and assaulting and murdering thousands of victims.
We have petitioned, complained — and, at times, begged — for the federal government to help, but to no avail. The sad reality is that there is no help on the way. We are on our own.
But all is not lost. Embedded in our Constitution is the principle of federalism. Specifically, under the Tenth Amendment, powers not delegated to the federal government are reserved to the States (and the People). Federalism provides states with the power and authority to protect the safety and welfare of their citizens through new and innovative solutions without relying on the federal government.
Thus, we do not have to rely on the federal government to secure our border with Mexico. Rather, we can use state law and resources to address it on our own. We can begin securing our border by enforcing state laws that protect our citizens and their property. This can be accomplished by creating a state enforced No Trespassing Zone along the border.
The No Trespassing Zone is a simple concept. First, persons entering the country illegally must, at some point, enter private or state land. If given reasonable notice that such entry constitutes trespassing (through the posting of “No Trespassing” signs), they can, and will, be arrested for trespassing. In addition to trespass, those entering the No Trespassing Zone may be arrested and prosecuted for the criminal damage they cause to state and private property. Additionally, the trespassers and the cartels will be prosecuted for any illegal drugs and weapons they carry into the Zone.
Second, entry into the No Trespassing Zone is detected by placing a “virtual wall” along the Zone. This technology, which employs hidden cameras placed in strategic locations, provides crystal-clear, real-time images of persons entering a surveilled area. This “virtual wall” technology is already in place on the border in Cochise County and has been funded by the Arizona legislature to extend to Yuma County.
Third, the policy requires the local county attorney’s offices and the Attorney General’s office to commit to a “zero-tolerance policy” regarding violations occurring in the No Trespassing Zone. Simply put, a “zero-tolerance policy” means that these agencies will dedicate staff and resources to prosecuting crimes committed in the Zone when there is sufficient evidence to do so.
Posting no trespassing signs would, of course, require the consent of private landowners. Additionally, much of the border includes locations, such as federal and reservation land, where state law enforcement and prosecutors have no jurisdiction. Thus, in some areas, the No Trespassing Zone will have to extend inside the state to the nearest adjacent private or state property where entry is made.
It is time for Arizona to act. As Arizona’s Attorney General, I will aggressively use the power of the Office to develop creative legal strategies to solve the problems we face together. The “No Trespassing Zone” initiative will put the law on our side to ensure border security.
Andrew W. Gould was appointed as a Justice to the Arizona Supreme Court in 2017 after serving 5 years on Division One of the Arizona Court of Appeals. He retired from the Supreme Court in March 2021. Prior to his appointment to the Court of Appeals, Justice Gould spent 11 years as a Judge of the Superior Court in Yuma County, where he served as both Associate Presiding Judge and Presiding Judge.
Andrew received his J.D. from Northwestern University School of Law in 1990. He began his legal career in Phoenix, Arizona, practicing in the field of civil litigation. In 1994, he became a Deputy County Attorney, prosecuting major criminal cases for Yuma and Maricopa Counties. He served as Chief Civil Deputy for the Yuma County Attorney’s Office from 1999-2001. Justice Gould has previously served on the Arizona Supreme Court Commission on Technology, as the President of the Arizona Judges’ Association, and has taught at the Judicial Conference and New Judge Orientations.