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Ninth Circuit Considers Tribe’s Plea to Pause Border Wall Construction

Considering a tribe’s claims that a border wall construction site in San Diego contains cultural resources and possibly ancestral burial sites, a Ninth Circuit panel Tuesday appeared unlikely to stop the project.

SAN DIEGO (CN) — Considering a tribe’s claims that a border wall construction site in San Diego contains cultural resources and possibly ancestral burial sites, a Ninth Circuit panel Tuesday appeared unlikely to stop the project. 

The La Posta Band of Digueno Mission Indians asked the appellate court to reverse U.S. District Judge Anthony Battaglia’s refusal to issue a preliminary injunction pausing border wall construction where the tribe says archaeologists and tribal members believe human remains are likely buried.

By failing to meet Department of Homeland Security tribal consultation requirements, La Posta claims the ongoing border wall construction, which cuts through Kumeyaay land in San Diego, violates the Administrative Procedures Act.

But Senior U.S. Circuit Judge Richard Tallman, a Bill Clinton appointee, questioned how to “prove the negative,” noting that, so far, there have been no documented finds of human remains in the construction zone.

“The question is: Did they discover any? Otherwise we are hypothesizing here,” Tallman told La Posta’s attorney Simon Gertler of Rosette LLP.

“How do you prove the negative? If they haven’t found anything to date, why should we assume we will find something? You really are asking the government to prove the negative when you can’t prove the positive,” Tallman added.

Gertler retorted that it is what the government does not say in its declarations and court responses that is significant to the case — the government never rebutted the tribe’s evidence of the likelihood of burial sites in the area, he said.

The duo argued semantics over the government’s land survey results which indicated there is not a presence of “known” burial sites.

Gertler said the presence of cultural resources in the area, as well as bones found on the Mexico side of the border 50 feet away from the wall was enough to allege the La Posta tribe would suffer irreparable harm from continued border wall construction absent a court injunction.

“There are still burials in other areas and the project is excavating a very large trench which is a disturbance this area hasn’t seen before, which is a disturbance the tribe is concerned about,” Gertler said.

But Justice Department attorney Anne Murphy said La Posta had failed to prove it would likely suffer irreparable harm.

“There’s nothing in the record of the government doing anything that is insensitive to cultural resources,” Murphy said.

When questioned by U.S. Circuit Judge Mary Murguia, a Barack Obama appointee, about the “thoroughness” of the government’s cultural resources land survey, Murphy pointed out “the government has had a presence in the area since 1907,” and has done numerous surveys in addition to having an archaeological contractor and tribal cultural monitors on-site during the current border wall project.

“This is true — there are no known burials. I’m not sure how are we to identify unknown burials, the government has looked for them, and none have been found,” Murphy said.

“The government is taking extraordinary efforts to ensure none of the harms La Posta is concerned about would happen,” she added.

On rebuttal, when asked by Tallman if Battaglia should have given more consideration to “unknown” burials, Gertler denied the tribe was merely speculating, pointing out five tribal members and archaeologists testified there were likely human remains where the border wall is being expanded.

Senior U.S. Circuit Judge A. Wallace Tashima, a Bill Clinton appointee, rounded out the panel. The matter was taken under submission.

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