Save the Gnatcatcher!

PUBLISHED: 7:36 PM 7 Aug 2018

California Environmentalists Argue Appeal In Border Wall Dispute

California activists go to court Tuesday in an effort to block the controversial border wall project. They already watched their arguments go down in flames once. Their biggest problem is that they are still standing in the wrong courtroom.

The Center for Biological Diversity is furious about replacing existing fencing in San Diego County.

The State of California and various environmental activist groups are headed to the federal court of appeals on Tuesday. They’re decidedly unhappy about the order U.S. District Judge Gonzalo Curiel handed down earlier this year throwing their case out of court so hard it bounced. He didn’t just decide against them, he devoted a full hundred pages to destroying the plaintiffs’ arguments, point-by-point.

The Center for Biological Diversity is furious about replacing existing fencing in San Diego County that runs through “wetlands, streams and other rare wildlife habitats, as well as critical habitat for numerous endangered species, including the Quino checkerspot butterfly and coastal California gnatcatcher.”

The activists and others from Defenders of Wildlife, Sierra Club, and Animal Legal Defense Fund teamed up with California and the California Coastal Commission to appeal, picking an obscure point in Judge Curiel’s analysis to challenge.

It’s clear to some that this is only a last ditch effort to keep their case alive. On Tuesday, they’ll appear in front of a panel of three judges to argue the last and lonely issue that all their wildlife and human sanctuary hopes are pinned on.

The administration’s unlimited waiver authority expired, they argue, “in 2008, when Homeland Security satisfied congressional requirements at the time on how much wall to build.” They already tried that line of attack and Curiel didn’t buy it.

Judge Curiel has no particular favoritism for President Donald Trump. All through the election campaign, the candidate repeatedly and publicly dragged Curiel over the coals for “an unrelated case involving fraud allegations and now-defunct Trump University.”

Curiel spelled out in his February ruling the law is crystal clear and sides with the administration no matter how unhappy it makes democrats.

Some say the real reason that California’s activists are frantically trying to stop a border wall from being built is because it will stop the constant flow of illegal immigrants that form the shadow workforce of low-wage agricultural and service workers.

Coincidentally, many somehow manage to vote in our elections, and they tend to vote democratic when they do.

In order to protect this valuable natural resource, liberals leveraged the use of environmental regulations to snarl the project in bureaucratic red tape. They have not been doing well with that in the courtroom.

Judges don’t often toss cases out without a fight. They prefer to “hear the merits” of the case before deciding. In this litigation, there are no merits.

San Diego’s Judge Curiel took a look at three related cases that had been consolidated together.

They sought to challenge the “Waiver Determinations” made by two former Department of Homeland Security Secretaries that set aside provisions of the National Environmental Policy Act of 1969, Endangered Species Act, and the Coastal Zone Management Act.

They were issued regarding two separate border wall construction projects in San Diego County. Both were intended to replace existing fencing, not tear up virgin terrain. The environmentalists claimed the waivers exceeded authority and were unconstitutional.

Well aware of the political controversies surrounding the case, Judge Curiel channeled Chief Justice Roberts to remind the parties the law supersedes political opinion.

“Courts are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”

Over a few months, Judge Curiel looked at all the documentation, analyzed the related laws, listened to arguments in hearings, and even asked for more details from both sides in supplemental briefings.

After looking at all of it, his decision was an easy one. He decided in favor of the government and granted their motion for “summary judgment.”

Back in 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act, IIRIRA, which… “required the Attorney General to ‘take such actions as may be necessary to install additional physical barriers and roads (including the removal of obstacles to detection of illegal entrants) in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States.’”

The Homeland Security Act of 2002 “abolished Immigration and Naturalization Service and transferred responsibility for the construction of border barriers from the Attorney General to the Department of Homeland Security.”

It also amended the waiver authority “…expanding the Secretary of DHS’ authority to waive ‘all legal requirements’ that the Secretary, in his or her own discretion, determines ‘necessary to ensure expeditious construction of the barriers and roads under this section.’”

Yet the most important thing it did was take all the decisions out of the hands of lower courts and give it to the Supreme Court exclusively.

“Further, the provision foreclosed appellate court review and directed any review of the district court’s decision be raised by petition for a writ of certiorari with the Supreme Court of the United States,” Judge Curiel wrote.

Defendants contend that the court lacks jurisdiction to which they are said to be mostly correct. Plaintiffs say the court is allowed to review the waivers to see if they might be unconstitutional. The judge agreed and looked at them.

“Finding that there are no such violations, the court upholds the jurisdictional bar and concludes that it does not have the jurisdiction to hear any claims other than constitutional claims.”

It is impossible to determine if the secretaries “violated a clear and mandatory statutory provision” because there isn’t one. According to the judge, “Even the cases relied upon by defendants fail to support their position.”

Plaintiffs argue that when the secretaries requested the waivers, they didn’t spell out specifically the reasons for each. The court decided that they didn’t have to. If a secretary wants a waiver, that is all the support required.