Border Fence Construction: San Pedro Riparian NCA

Defenders of Wildlife v. Bureau of Land Management, U.S. Department of the Interior, U.S. Army Corps of Engineers and U.S. Department of Homeland Security


Case Background:


The 2006 Secure Fence Act authorized the Homeland Security Secretary to construct a double-layer reinforced wall along five distinct sections of the U.S.-Mexico border totaling approximately 700 miles. Enacted with the intention of discouraging illegal border crossings, the wall poses a threat to the high concentration of wildlife in area, many of which are protected or proposed to be protected under the Endangered Species Act.

The longest section of wall, totaling approximately 370 miles, would cross several federally protected lands, including the San Pedro Riparian National Conservation Area (NCA) in southeastern Arizona. The San Pedro River, one of the last undammed, free-flowing rivers in the Southwest, along with its surrounding watershed, is world-renowned as one of the most biologically diverse areas of the United States. Construction of the border fence would block critical corridors for wildlife, including jaguars, ocelots, coatimundi, and many other species. In addition, it would block numerous desert washes feeding the San Pedro River and floodplain, resulting in erosion and sedimentation into the river, which provides habitat for hundreds of breeding, migratory, and wintering bird species, as well as more than 80 species of mammals.

On October 8th 2007, Defenders of Wildlife and the Sierra Club appealed to the government to evaluate the overall impacts of the border wall on wildlife and to consider alternatives. When construction on the San Pedro segment of the fence continued regardless of the appeal, Defenders brought suit in Federal District Court and moved for a Temporary Restraining Order. On October 10th, U.S. District Court Judge Ellen S. Huvelle granted the motion, halting construction of the wall until further study of its impacts would be conducted by government agencies. On October 22nd, Department of Homeland Security Secretary Michael Chertoff used Section 102 of the 2005 REAL ID Act to waive 19 laws intended to protect wildlife and endangered species, clean water and air, safe drinking water, and cultural, historic and archeologically significant resources in order to resume construction of the wall.

On November 1st 2007, Defenders of Wildlife and the Sierra Club filed an amended complaint in U.S. district court challenging the constitutionality of the Secretary’s power to pick and choose which laws will apply to border wall construction. The complaint asserts that by delegating this power, Congress has unconstitutionally given away its lawmaking responsibilities to a politically-appointed Executive branch official who is not accountable to the American public.

Related Documents:

Petition for a Writ of Certiorari
Temporary Restraining Order Filing
Amended Complaint Filing

Amicus Briefs:
Congress Members
Law professors and constitutional scholars
Broad coalition

Status:


Active

Co-filers:


Sierra Club

Updates:

04/18/2008
Three amicus briefs are filed in support of Defenders of Wildlife's and the Sierra Club's pending petition for cert. asking the Supreme Court to hear our constitutional challenge to the REAL ID waiver authority.

03/17/2008
Defenders and the Sierra Club filed a petition for a Writ of Certiorari asking the U.S. Supreme Court to hear the arguments for their constitutional challenge.

12/18/2007
Judge Huvelle issued an order and opinion rejecting Defenders’ constitutional challenge, and granting the governments’ motion to dismiss.