WASHINGTON (CN) — The Kumeyaay Nation, 13 federally recognized Indian tribes living in Southern California, urged a federal judge on Friday to force the Trump administration to survey the grounds around an under-construction border wall to prevent the disruption of religious sites, including burial grounds.
U.S. District Judge Trevor N. McFadden was clearly unpersuaded by the Justice Department during the nearly three-hour hearing on the tribes’ request for a temporary block on the section of U.S.-Mexico border wall.
But the Trump appointee also queried whether the Kumeyaay had met the necessary threshold of irreparable harm to be granted relief.
The tribes claim that human remains have been unearthed, but the Department of Homeland Security denied the disturbances, arguing Friday that one such “discovery” was nothing more than a fragment of PVC pipe.
Another unearthing of a bone fragment is under dispute, with the tribe arguing it was close enough to the construction site to warrant concern but the government saying it fell on Mexico’s side of the border.
“There is a near certainty that human remains will be discovered or do exist in the area,” tribal attorney Colin Hampson said, citing what he said was extensive archaeological findings of prehistoric Kumeyaay settlements in the area.
“Where people have lived they have also died,” he added.
Meanwhile, the government argued that acting Secretary of Homeland Security Chad Wolf lawfully waived the application of several federal laws to propel the border project that would have required a greater evaluation of potential damage to the surrounding ecosystem as well as historical sites.
But McFadden rejected that Wolf’s predecessor, former Secretary Kirstjen Nielsen, properly designated Customs and Border Patrol Commissioner Kevin McAleenan, who would later resign from the post and appoint Wolf to the role, as her successor in an acting capacity.
The judge said the Justice Department could disagree that it wasn’t a “screw up” but said he was not convinced by arguments that Kirstjen’s April 2019 memo designating her successor was lawful.
He noted that two district judges, in Washington and California, and the Ninth Circuit reached the same conclusion on President Donald Trump’s revolving door of DHS secretaries.
A government watchdog also recently concluded that Wolf’s appointment was invalid. The president is currently in the process of officially naming him as head of DHS.
“It didn’t use the clearest language that it could have,” Justice Department attorney Bradley Craigmyle admitted.
But the government leaned into its argument that the tribes lacked standing to bring the lawsuit against Wolf’s waiver, arguing the three federal judicial rulings McFadden cited were all wrong.
Attorney Frank Sharp Holleman, arguing for the Kumeyaay, told the judge that what the Trump administration was proffering could not have been what the Framers had in mind.
“That would allow increasingly low-ranking federal officials to push the cabinet level officialdom further down the ranks,” he said.
While the Trump administration dismissed the tribes’ concerns about human remains at the construction site — saying speculation of more bone fragments in Mexico does not reach the high bar to grant the preliminary injunction — the tribes said their evidence supports a finding of irreparable harm.
Furthermore, the Kumeyaay argued the studies necessary to determine if the border wall construction will harm burial sites are “miniscule in terms of cost” compared to the project’s total budget.
“The problem with the defendants’ efforts to brush aside these concerns is that the defendants haven’t studied these impacts,” Hampson said.
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