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Summary

In October 2022, a politically-connected private company hired by Arizona Governor Doug Ducey began using stacked shipping containers to build a “border wall” between gaps in the current fence along the U.S.-Mexico border in Arizona (where the federal government was already working to fill those gaps), including through the Coronado National Forest. Ducey ordered the stunt over the objections of Cocopah Indian Tribe and the federal government, and despite knowing that it violated federal law in multiple ways to do so. As construction on the “wall” began on Coronado National Forest land, Ducey filed this lawsuit to request that the Court declare his actions lawful.  

On November 2, 2022, the Center for Biological Diversity (CBD)–a Tucson-based environmental organization that has been raising alarm over how Ducey’s container “wall” violates the Environmental Protection Act and flouted other environmental requirements and regulations–moved to intervene in the case as a defendant. Judge Campbell granted that motion a few weeks later, thereby permitting CBD to argue against Ducey’s actions alongside the federal government defendants.

The parties are currently briefing the federal government’s motion to dismiss Arizona’s claims.

Technical Summary

Ducey’s complaint seeks a declaration that he, as Arizona governor, could ignore the federal regulatory requirements for his installation of the shipping containers.  One argument pressed in the Complaint is that President Roosevelt’s 1907 proclamation claiming for the federal government a 60-foot wide strip of land along the border with Mexico (the so-called “Roosevelt Reservation”) is unconstitutional. 

Judge Campbell’s November 23, 2022 order granting CBD’s motion to intervene was a minute entry; it stated in relevant part: “Permissive intervention is granted under Rule 24(b). The Court concludes that Intervenor has defenses that share with the main action a common question of law or fact -- whether the federal government may act with respect to the border lands of Arizona, including in the enforcement of federal environmental statutes. The Court will hold Intervenor to its commitment not to unduly complicate this case, delay the proceedings, inject irrelevant issues, or repeat arguments made by the federal defendants. The purpose of granting this intervention is not to convert this case into an environmental enforcement action or launch into broad ranging discovery on environmental issues. The purpose is to enable Intervenor to provide input on the claims and issues raised by Plaintiff.”
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