Key highlights:

• New report says Congress did not act illegally to give Homeland Security authority to waive environmental laws to build the wall
• Center for Biological Diversity wants judge  to reject new report
• Construction of the wall continues while case is in court

PHOENIX — A federal magistrate is recommending that a judge toss out a bid to stop construction of a new wall along the southern border.

In a new report, James Marner said there is no legal basis for arguments by two environmental groups that Congress acted illegally in 2005 when it gave the head of the Department of Homeland Security authority to waive a host of environmental laws to enable border wall construction. He said that the federal law, while broad, is not so wide as to provide unfettered limits on the secretary.

But his report is not the last word.

Instead, it is a recommendation to U.S. District Court Judge Angela Martinez. And Tala DiBenedetto, an attorney for the Center for Biological Diversity and CATalyst, said she intends to argue to the judge that she should reject Marner’s report.

The only thing is, to do that, she will have to convince the judge to ignore similar conclusions reached by other federal judges on the scope of the law she is challenging. 

And there’s something else.

Time is not on the side of challengers. Construction of the wall has continued while the case has been in court.

Central to the case is the 1996 Immigration Reform and Immigrant Responsibility Act. It authorizes Homeland Security to construct barriers and roads along the border. 

In 2005, however, Congress amended the law to give the agency’s secretary the power to waive all laws. Using that authority, Secretary Kristi Noem approved construction of a 27-mile stretch through the grasslands of the San Rafael Valley without going through otherwise required environmental reviews.

That includes installing 30-foot steel bollards that challengers say will interfere with the migration of jaguars and other animals.

In filing suit earlier this year, challengers contend that Congress lacked the authority to give Noem such broad and unrestricted powers. The problem with that, Marner reported, is that federal courts elsewhere have rejected similar arguments.

For example, he cited one case where a judge said there are sufficient restrictions in Noem’s power, with the judge there noting that the law does spell out that fencing must be only “in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States.”

“Congress clearly delineated the general policy of (the law) as deterrence of illegal crossings through construction of additional physical barriers to improve U.S. border protection,” Marner said, citing yet another federal court case that upheld Noem’s powers. “In so finding, the district court recognized that previous courts have identified the general policy of (the law) as ‘border protection’ and have ‘identified deterrence of illegal crossings as a motivating factor in this policy.’ ”

Nor was Marner convinced by arguments about the sheer number of laws that Noem is empowered to waive. “There is no legal authority or principled basis upon which a court may strike down an otherwise permissible delegation simply because of its scope,” he said.

Challengers had no better luck with arguments that Congress, in expanding the law in 2005, acted improperly by failing to require that the Homeland Security secretary “seek expert guidance and input” before issuing a decision to waive certain requirements. They also said that before the secretary can nullify a law that impedes border construction, she must have knowledge of the operation of laws beyond her expertise and jurisdiction.

“No such knowledge on the secretary’s part is required,” Marner said

DiBenedetto acknowledged that the report — and its reliance on prior court rulings — leaves her with one course of action: try to convince Martinez to reject Marner’s conclusions and look at what the U.S. Constitution requires. “The legal argument is that the IIRIRA, which delegates the authority to the secretary of Homeland Security to waive any and all laws and regulations under the sun for border wall construction, is an unconstitutional delegation of authority to an unelected official,” she said.

And what of the prior rulings?

“The previous cases did engage with the constitutional issues,” DiBenedetto acknowledged. And that means she needs to convince Martinez that those other judges are wrong. Whether Martinez is willing to do that, however, remains unclear.

And there’s something else.

This particular federal law is unique in at least one respect: Whoever Martinez rules against can’t simply ask the 9th Circuit Court of Appeals to review.

“In addition to providing this sweeping delegation authority, it also heavily constrains review,” DiBenedetto said.

And that means if Martinez disagrees with her clients, the only option is to take the case to the U.S. Supreme Court. No date has been set for DiBenedetto to make her arguments to Martinez.

Russ McSpadden, southwest conservation advocate for the Center for Biological Diversity, said the issue of a wall — already under construction between the Patagonia and Huachuca mountains — has significant biological implications.

“This is truly one of the best jaguar movement corridors we have remaining in the United States,” McSpadden said, saying three jaguars have used this corridor — and gone through where the fence is to be located — since 2015.

And it’s not just jaguars.

“Pronghorn also roam in this valley,” McSpadden said. “Few people know this, but porcupines live in this valley, bears cross here, mountain lions, coatimundi, javelina, you name it, this is one of the most spectacular wildlife corridors left.”