Attorneys Spar Over Challenge to Trump’s Border Wall

SAN DIEGO – A federal judge heard arguments Friday over whether environmental waivers granted by the federal government to speed up construction of President Donald Trump’s border wall violate federal law.

U.S. District Judge Gonzalo Curiel, of the Southern District of California, heard arguments Friday afternoon from attorneys for the Department of Homeland Security, California Attorney General’s Office and a handful of environmental organizations over whether the federal government’s decision to waive 37 environmental laws – including the National Environmental Policy Act and Endangered Species Act – should be allowed under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

Curiel, who presided over the Trump University class action cases in the Southern District, was famously lambasted by Trump ahead of the 2016 presidential election. On the campaign trail, Trump said Curiel was biased and “Mexican” and could not preside fairly over the fraud class action because of the then-candidate’s hard-line stance on immigration.

The judge, a Barack Obama appointee, is a U.S. citizen born in Indiana.

The Sierra Club, Defenders of Wildlife and Animal Legal Defense Fund sued the federal government after Homeland Security announced the waivers, claiming the department’s decision could have a disastrous impact on the 27 species listed in the Endangered Species Act that live within 150 feet of the U.S.-Mexico border.

More than a dozen of the species listed are only found in Southern California, including the California gnatcatcher, Pacific pocket mouse and Riverside fairy shrimp.

California Attorney General Xavier Becerra filed a similar lawsuit on behalf of the state this past September, joined by the California Coastal Commission. The lawsuit was consolidated with the case brought by the environmental groups.

The groups want the federal governmental to be enjoined from moving forward with any border wall construction until it complies with all laws.

Friday’s court hearing was dominated by two questions Curiel kept coming back to: whether a provision in the Immigration Act over a “high” number of illegal entries applied to the current situation in San Diego, and whether the government had complied with a second provision in the act requiring it to consult with local interested parties when deciding to waive local environmental laws.

California Deputy Attorney General Michael Cayaban argued “high illegal entry” “has to have some meaning” and pointed out that the number of undocumented entries in the San Diego region is down more than 90 percent from the 1990s.

“This goal of eliminating all unlawful entries through the construction of fences is limited to areas of high illegal entry,” Cayaban said.

Cayaban showed a pie chart using data from Customs and Border Protection which sliced up the number of undocumented entries by jurisdiction between 2013 and 2015: 40 percent occurred in the Rio Grande Valley in Texas, and 29 percent in Tucson, Arizona. San Diego and El Centro, the two areas where the environmental waivers were issued to construct additional border infrastructure, only accounted for a combined 11 percent of undocumented entries over the same time period.

Cayaban said the discrepancy points to California border cities being treated “disparately” compared to others along the U.S.-Mexico border.

“The power to waive state laws is being applied unfairly in light of illegal entry numbers; the vast majority of entries are in jurisdictions other than California,” Cayaban said.

Curiel told Cayaban that asking him to interpret the meaning of the congressional statute in terms of what constitutes “high illegal entry” was something “the Supreme Court has counseled me I cannot do.”

When Department of Justice attorney Galen Thorp took the podium, Curiel focused on a provision in the act which requires the government to consult with local interested parties on environmental waiver decisions.

Thorp revealed the construction project to replace 15 miles of border fence in San Diego is scheduled to start in June, though the government “has not reached the point of consulting” with interested parties in the San Diego region.

A similar project in El Centro could break ground as early as Feb. 15, Thorp said.

Curiel asked when the government need to consult with environmental groups, local governments, tribal groups and other interested parties.

“Doesn’t it seem these types of consultations should take place at the front end to decide which laws to waive as opposed to the back end when they’re ready to break ground?” Curiel asked.

Thorp said the consultations were conducted not to decide whether certain environmental laws should be waived but to mitigate the impacts of doing so.

As to the suggestion the number of undocumented entries in the San Diego sector do not constitute a “high” amount,” Thorp said it is “wrong to suggest the tens of thousands of entries here are low” and fall outside of the statute.

Judge Curiel asked both sides to provide additional briefing on the issue of consultation by Feb. 13. He is expected to issue a written order on the motions sometime next week.

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