DHS to return $427M in military funds spent on border wall, create animal portals in Az

Two lawsuits over the Trump administration’s unlawful attempt to use billions earmarked for military construction projects for border barriers came to a close Monday after the Biden administration, environmentalists and 18 states agreed to a settlement.

As part of the 65-page agreement, the Department of Homeland Security agreed to halt further construction of border walls using the funding, return over $427 million in military construction funds to the states, remediate construction sites, and provide funding to protect thousands of acres of habit in California.

Trump’s border wall is a “relic of the past,” said California’s attorney general.

DHS also agreed to install openings in the border wall near protected landscapes in Arizona and New Mexico and keep open stormwater gates to allow several endangered species to migrate across the U.S.-Mexico border, including the northern jaguar and Sonoran pronghorn. And, finally, the agency said it would require U.S. Customs and Border Protection to follow federal law before pursuing new construction projects, including stadium lighting.

Government documents provided to reporters by environmentalists on Monday show the damage from the Trump border work ranges from increased risk of flooding and landslides, to the destruction and disturbance of native artifacts and human remains (see sidebar).

When Congress refused to fund the Trump administration’s efforts in 2017, the administration ignored lawmakers and raided billions from the Defense Department’s counter-narcotics operations, and another $3.6 billion in military construction funding shifted under an obscure section of federal law known as Section 2808—which could allow the president to use the National Emergency Act to authorize military construction projects which aid the U.S. military.

With the funding in hand, the administration raced to build the ex-president’s long-touted border wall, and by January 2021, CBP completed 452 miles of border wall, largely 30-foot high steel bollards filled with concrete.

However, much of this effort merely replaced “dilapidated or outdated” designs. The agency added just 47 miles of new “primary” wall and 33 miles of “secondary wall” across the southwest. Around 351 miles of outdated barriers were replaced with the higher wall, along with 21 miles of “secondary” wall.

Overall, the Trump administration sought to spend as much as $100 million per mile to build what CBP called a “border wall system,” which includes not only 30-foot high panels of “bollard” walls topped with steel “anti-climbing plates,” but also lights and sensors, and a network of roads to make it easier for Border Patrol vehicles to quickly pursue people who get past the new barriers.

Unable to quickly gobble up private and state land, the administration instead set its sights on federally protected land, including hundreds of acres across Pima, Santa Cruz and Cochise counties, affecting the Cabeza Prieta National Wildlife Refuge, Organ Pipe Cactus National Monument, the San Bernardino National Wildlife Refuge, and the San Pedro Riparian National Conservation Area—the site of one of the nation’s last “free-flowing” rivers.

And, this effort came despite multiple lawsuits, launched by Congress, environmental and human rights groups, and protests by members of the Tohono O’odham Nation and other advocates at a half-dozen sites. 

The Sierra Club and the Southern Border Communities Coalition, backed by the American Civil Liberties Union, sued the Trump administration over the border wall construction. In a separate lawsuit, 18 states—including California and New Mexico—filed their own lawsuit after Trump’s secretary of Defense authorized the diversion of billions in funds from nearly 128 military construction projects worth about $500 million. 

For three years, U.S. District Courts rejected the Trump administration’s arguments, and in October 2020, the Ninth Circuit Court of Appeals ruled for the states and environmental groups, and said federal law did not allow the White House to raid billions from military construction efforts. In a 2-1 decision, the three-judge panel also agreed to keep a lower court’s permanent injunction in place, effectively blocking the government from continuing construction at projects in California, Arizona, New Mexico, and Texas.

In the decision, the court ruled while Section 2808 of federal law, “allows the secretary of Defense to undertake military construction projects in the
event of a national emergency requiring the use of the armed forces” the statute “specifies that such projects must be ‘necessary to support
such use of the armed forces,” the judges wrote. However, the use of
2808 funds to construct the 175 miles of border wall, failed to satisfy
“two of the statutory requirements: they are neither necessary to
support the use of the armed forces, nor are they military construction
projects,”  they wrote. 

Federal officials did not “established
that the projects are necessary to support the use of the armed forces,”
the court wrote, because the “administrative record shows that the
border wall projects are intended to support and benefit DHS—a civilian
agency—rather than the armed forces,” and second, the Trump
administration has “not established, or even alleged, that the projects
are, in fact, necessary to support the use of the armed forces.”

The Supreme Court considered the cases, but refused to rule on the legality of using Section 2808 funding for the border wall. Instead, the Supreme Court ruled in a 5-4 decision construction could proceed while litigation continued.

On his first day in office in January 2021, President Joe Biden terminated Trump’s national emergency declarations. While both cases were heading to the Supreme Court, Biden’s decision removed both from the court’s argument calendar and returned them the lower courts.

Advocates cheer settlement

“The Trump border wall construction, done against the will of Congress and held illegal by federal courts, catastrophically harmed natural resources and communities in the U.S.-Mexico border region,” said Cecillia Wang, deputy legal director with the ACLU. Wang led the Sierra Club’s lawsuit against the Trump administration.

“This settlement agreement brings a measure of accountability and should serve as a lasting reminder that government policies driven by fear-mongering rather than good policy-making end up harming our national interests,” Wang said.

“The Trump border wall is officially a relic of the past, which is where
it belongs,” said California’s Attorney General Rob Bonta. “With environmental
mitigation projects coming online to protect our sensitive ecosystem
along the U.S.-Mexico border and the confirmation of over $427 million
in funding restored for military construction projects, today’s
settlement ushers in a new beginning. I am grateful to the Biden
Administration for working with us in good faith and making this
announcement possible.”

“When the ex-president didn’t get his way, he sidestepped Congress and illegally used funds meant to support service-members to build his border wall. From damages to Tribal lands to degraded habitats for wildlife, borderlands communities will be dealing with the consequences of this boondoggle for years to come,” said Erick Meza, borderland coordinator for the Sierra Club. “The Sierra Club Borderlands program has been working for over a decade to protect these fragile landscapes, and we are glad to see this settlement not only stop work on this destructive project, but aid in its restoration.” 

Meza added the remediation included in the settlement will be “important to healing the communities, landscapes, and ecosystems affected by the previous administration’s reckless actions.”

As part of the settlement, DHS will return over $427 million in funding for military construction projects in the
plaintiff states of California, Colorado, Hawaii, Maryland, New Mexico,
New York, Oregon, Virginia, and Wisconsin. The agency will also give $25 million to California to help an environmental group purchase up to 1,200 acres of property near the border and provide $1.1 million to fund monitoring programs for several endangered species, including the Peninsular Bighorn Sheep, Sonoran Desert Pronghorn, Mexican Gray Wolf, ocelot, and jaguar.

Additionally, DHS agreed to install 20 “small wildlife passages” across the border, as well as four “large wildlife passages” in Arizona and New Mexico. Most of the passes will be 7-feet by 5-feet, but one section will be 18-feet high, according to the settlement. One passage will be cut through the wall near Cabeza Prieta National Wildlife Refuge at Pinta Sands to allow Sonoran pronghorn, while the other in Arizona will be built in the Perilla Mountains in Cochise County and allow Jaguars and black bears to cross the U.S.-Mexico border.

The agency also agreed to leave eight stormwater gates open to allow animals to cross the border, including two in Organ Pipe Cactus National Monument, the San Pedro Riparian Conservation Area, and the San Bernardino National Wildlife Refuge.

Further, future DHS border wall projects will have to follow the federal environmental process under the National Environmental Policy Act, and inform environmental organizations if officials need to close the passages or stormwater gates.

DHS maintains the right to place “alternative forms of wildlife-friendly infrastructure”  and systems to “detect unauthorized entry into the United States.” However, the agency ruled out using concertina or “razor wire.” In some cases, barbed wire fencing could be used to keep cattle from crossing the southern border of the United States.

Finally, DHS also said it would work to mitigate the environmental impacts from the lighting installed near the Andrade border crossing in Yuma County. The agency said the lights were turned on at night, but the agency would use LED lights and focus the light on the patrol road and “avoid upward light spillage to the maximum extent practicable.”

The settlement does not make clear if DHS will do with more than1,800 stadium lights installed beyond the Yuma valley, across much of Arizona’s border with Mexico. The Tucson-based Center for Biological Diversity is urging the agency to either remove them or consider how light pollution from the 500-watt lights could drastically alter the behavior of endangered and threatened species in the region, extending “the devastating habitat fragmentation impacts of the border wall far into the sky.”

The lights would beam out an estimated 50,000 lumens, or “substantially more light than standard urban street lights,” the group said, lighting up areas of protected wilderness and wildlife refuges in the borderlands.

Further, the agency could continue mitigation efforts and in some cases, would continue building new barriers, including a project launched last year to close gaps in the wall near Yuma and questions remain about mitigation efforts.

“This settlement is not only about holding the U.S. government
accountable for abuse of power but also about upholding the human right
of all border residents to be equal under the law,” said Ricky Garza, an
attorney for the Southern Border Communities Coalition. “While nothing
can undo the permanent harms of years of wall construction across the
Southwest, this settlement takes important steps toward remediation that
includes a requirement for consultation and an evaluation of
environmental impact — a move that could open the door to eliminating
blanket DHS waivers that have made border communities a sacrifice zone
for decades. Committing to better consulting with our communities is a
significant step forward by the U.S. government toward better
governance.”

“However, this fight isn’t over and the government
has a long way to go before it recognizes the humanity and dignity of
all border residents and provides us with the respect we deserve,” Garza
said.