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.
One week after his inauguration, President Joe Biden issued Executive Order 14008 pausing new oil and gas leases on public lands. But perhaps the best known provision of the executive order was the goal of ensuring at least 30 percent of all federal land and coastal waterways are conserved by 2030.
The purpose, according to Biden, is to address climate change, protect biodiversity, and create equitable access to nature.
At the time of Biden’s announcement, about 12 percent of land across America was under sufficient oversight to be considered conserved, according to data from the U.S. Geological Survey. To meet the 30 percent goal would require conservation of about 440,000,000 additional acres.
By comparison, the State of Texas comes in at 171,057,000 acres.
The fact that the federal government already controls roughly 640,000,000 acres would seem to go a long way toward achieving the 30 by 30 goal, now better known as the America the Beautiful Initiative. However, nearly one-third of those acres are not conserved in a way that would likely comply with the unfinalized standards of the initiative.
Back in March, more than 60 members of the Congressional Western Caucus, sent Biden a letter expressing concerns with 30 by 30. The letter noted that with more than 90 percent of federally-managed lands lying west of the Mississippi, their constituents are concerned Western states will be disproportionately impacted by policies utilized to achieve the 30 by 30 goals.
“Stewardship of our lands is embedded in our Western values. Sustainable, healthy land is the lifeblood of our rural communities and our outdoor heritage and rural economies thrive when our lands are properly managed,” the letter stated. “However, the 30 by 30 initiative displays a dangerous thoughtlessness and far too many of our questions have been left unanswered.”
Yet seven months after that letter, very little is known as to how the Biden Administration intends to meet those goals. And that prompted an Oct. 12 letter to the President from Cochise County Sheriff Mark Dannels on behalf of the Arizona Sheriffs Association.
“As in the past, we have concerns including proposals such as these lacking specific measures, imposing unnecessary land use restrictions, and limiting economic opportunities that have existed for decades on these very lands,” Dannels wrote, also noting that federal officials were using the term “federally managed lands” instead of “public lands” in 30 x 30 documents.
But while Arizona’s sheriffs encouraged collaboration with state agencies and local governments to address climate change and drought impacts within the Western States, the letter cautioned that federal officials “should avoid imposing unilateral authority to further limit uses and impose increased land use restrictions on federal lands in the West that have been extremely divisive and controversial.”
Similar letters were sent to Sen. Kyrsten Sinema and Sen. Mark Kelly. A spokeswoman for the Arizona Sheriffs Association said no responses were received in the last month.
Some 30 by 30 documents mention the need for incentivizing voluntary stewardship efforts on private lands and by supporting the efforts and visions of States and Tribal Nations. The fact that privately owned lands are home to nearly two-third of all species on the U.S. Endangered Species list also has landowners in the western United States concerned about preservation of property rights.
“Traditional mechanisms of land protection like permanent acquisition, easement or federal designation will rightfully play a role in achieving 30 by 30,” the Western Landowners Alliance noted in a recent statement. “At the same time, over-reliance on these tools, or an insistence that these mechanisms are the only way to protect land fails to recognize the contributions to conservation of those already on the land.”
Deb Haaland, as U.S. Secretary of Interior, was tasked to coordinate with the Secretarys of Agriculture and Commerce along with the National Oceanic and Atmospheric Administration and White House Council on Environmental Quality to propose guidelines for determining what lands and waters qualify for conservation.
The America the Beautiful Interagency Working Group, as it is known, is also responsible for providing an annual progress report to the White House as well as ensuring federal dollars get distributed toward conservation programs.
The working group came under scrutiny earlier this year after questions were raised about the protocols utilized for awarding $17 million in federally funded grants for urban park projects. One of those projects sent $1 million to the City of Santa Barbara, California to renovate a park, including the installation of synthetic turf at the park.
Gov. Doug Ducey and nine other governors met Wednesday in Texas to announce a plan they say could be immediately implemented by the Biden Administration to address the crisis at the nation’s southwest border. The meeting came after more than two weeks of silence from President Joe Biden to a Sept. 20 request for a summit with 26 governors, including Ducey.
“We’ve tried to meet with the president and be part of the solution, but he refuses. No, worse — he ignores governors, just like he’s ignoring the border and the safety of the American people,” Ducey said, adding that the governors have publicly provided a comprehensive set of policy to end the border crisis immediately. “President Biden now has everything he needs to stop this crisis.”
The 10-point plan shared by the governors calls for the continued application of Title 42 to refuse entry to individuals coming into the U.S. due to COVID-19 public health risks (Point 1) as well as the dedication of additional resources to eradicate the surge in human and drug smuggling (Point 2).
Point 3 calls on Biden to enforce all deportation laws applicable to criminally-convicted illegal aliens, while Point 4 seeks the United States’ reentry with agreements previously in place with Mexico as well as with El Salvador, Guatemala, and Honduras -commonly referred to as the Northern Triangle.
The fifth point would ensure states are notified by the U.S. Office of Refugee Resettlement anytime the federal government transports migrants, including unaccompanied children, into a state that will be called upon to provide social services.
And the sixth point demands the President and all federal officials to “state clearly and unequivocally that our country’s borders are not open” and that migrants seeking economic opportunity in America should not abuse or misuse the asylum process.
Point 7 calls for the U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) to be provided with more resources for federal officers and agents. Meanwhile, Point 8 involves making additional judges and resources available to U.S. Immigration Courts to end the growing backlog and expedite court appearances for illegal migrants. There would also be an end to the Biden Administration’s current “catch and release policy” which makes it impossible to track immigrants who are otherwise free to travel anywhere in the country.
Under Point 9, the Migrant Protection Policy (MPP) would be reinstated in compliance with recent court rulings. MPP requires asylum seekers to return to Mexico to await court hearings. And Point 10, according to the governors’ plan, would reactivate construction contracts to finish building the border wall as well as additional security infrastructure such as lights, sensors, and access roads.
Those participating in the meeting with Ducey and Texas Gov. Greg Abbott were Gov. Brian Kemp of Georgia, Gov. Brad Little of Idaho, Gov. Kim Reynolds of Iowa, Gov. Greg Gianforte of Montana, Gov. Pete Ricketts of Montana, Gov. Mike DeWine of Ohio, Gov. Kevin Stitt of Oklahoma, and Gov. Mark Gordon of Wyoming. The attendees received a border briefing from Commissioner Steve McCraw of the Texas Department of Public Safety as well as Brandon Judd of the National Border Patrol Council.
Last month, Cochise County Sheriff Mark Dannels took issue with comments by U.S. Rep. Sheila Jackson Lee (D-Texas) who claimed the southwest border is “sovereign and secure” and that anyone who says otherwise is spouting “biased and unfair narratives for political purposes.”
Dannels, whose county shares 80 miles of border with Mexico, said Jackson Lee’s comments were “100 percent not true.” To support his position, the sheriff pointed to data compiled by the federal government which showed 183,000 border crossers taken into custody from Oct. 1, 2020 through Aug. 31, 2021 by the Tucson Sector of the U.S. Border Patrol.
During that same period, an estimated 115,000 “getaways” were reported in the Tucson Sector, Dannels said.
Those were just some of the 1,473,000 encounters with undocumented immigrants at the nation’s southwest border, a 325 percent increase from the same period last year.