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RANCHO RESORT MAINTANANCE POSITION Dental Southern Arizona Endodontics Dental Assistant General A1 Communications Cable Techs Health Care Sierra Tucson Eating Disorders Program Coordinator Retail . RETAIL/FOOD MANAGER Hourly UpdateLawsuit filed over feds' border fence construction waiverCapitol Media Services
Tucson, Arizona | Published: 11.01.2007
Two environmental groups on Thursday asked a judge to void part of a 2005 law that let Homeland Security Secretary Michael Chertoff ignore various federal laws to build a stretch of fence along the border.
Legal papers filed in U.S. District Court in Washington contend Congress unconstitutionally delegated its powers to decide laws to "a politically appointed executive branch official.'' Attorneys for Defenders of Wildlife and the Sierra Club said that makes the decision by Chertoff to use that law both illegal and unenforceable.
The move comes as the government has resumed work on the barriers it plans to install along the southern edge of the San Pedro Riparian National Conservation Area.
U.S. District Court Judge Ellen Huvelle last month barred further work on nearly two miles of fence and vehicle barriers, concluding there was strong evidence federal officials had not complied with environmental laws. The delay was designed to give the two environmental groups a chance to make their case for a permanent injunction.
But Chertoff, rather than wait for that hearing -- and risk losing -- last week invoked his power under the Real ID Act and declared the project exempt from not only the three environmental laws cited in the lawsuit but 16 other laws as well.
That left the groups with only one option: Challenge the act.
"Congress has the power to declare the law and determine where it applies,'' said Bob Dreher, vice president of conservation law for Defenders of Wildlife.
"The executive branch is required to faithfully execute the laws,'' he continued. Dreher said the Real ID Act delegates to Chertoff "the unconstitutional discretion to determine what laws he wishes to comply with.''
A spokeswoman for the Department of Homeland Security said late Thursday she had not seen the legal papers.
"However, we've seen a similar challenge before,'' said Laura Keener. "We've won on that point before and expect to prevail on it again.''
The new legal action does not ask Huvelle to stop further work on the project. Oliver Bernstein, spokesman for the Sierra Club, said federal judges usually don't grant such orders for constitutional challenges to laws.
But Bernstein said if the new legal action is successful it would require the government to remove the barriers and mitigate any damages caused by the work.
In her order last month, Huvelle said the informal environmental assessment of the effects of the planned barriers was "inadequate.'' The judge said the Bureau of Land Management, which controls the area and conducted the review, "cannot convincingly establish that they have adequately identified relevant areas of environmental concern'' as required by the National Environmental Policy Act.
Chertoff responded by declaring about seven miles of border barriers exempt from NEPA and other laws. He said prompt construction is necessary both to protect national security and prevent further environmental damage from people crossing that stretch of the border illegally.
He also said environmental concerns were taken into account: Instead of building a pedestrian fence up to 14 feet tall, the government is installing vehicle barriers, both permanent and removable, in the river bed and the washes leading into it.
Lawyers for the two groups concede the Real ID Act spells out that once the Homeland Security secretary uses his power of waiver, the only legal remedy left is making a constitutional challenge.
"The secretary's action was a clear and unprecedented abuse of authority and demonstrated a profound disregard for the system of checks and balances assured in our Constitution,'' Rodger Schlickeisen, president of Defenders of Wildlife, said in a prepared statement. He said Chertoff's actions "left us no choice'' but to challenge the law.
Carl Pope, executive director of the Sierra Club, issued a statement saying, "arbitrarily waiving environmental protections is an extreme path to tread.''
The conservation area was created by Congress in 1988, the first of its kind in the country. The environmental groups said the San Pedro River and its watershed "are widely recognized as one of the most biologically diverse areas in North America.'' Chertoff has used his waiver power twice before.
In 2005 he decided to build fencing near San Diego without conducting environmental studies. And just this past January he issued a waiver from all laws for a project along the edge of the Barry M. Goldwater Range in southwest Arizona.
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