Justice Department sues Arizona for installing shipping containers along southern border

Washington — The Justice Department has filed a lawsuit against the state of Arizona and its top officials over the installation of hundreds of double-stacked shipping containers along the state’s border with Mexico, further escalating the fight between GOP Gov. Doug Ducey and the Biden administration over border enforcement.

Filed in U.S. District Court in Arizona, the suit alleges the state, acting pursuant to an executive order from Ducey, has trespassed on lands owned and managed by the federal government without securing the required permits or authorization. Federal prosecutors argued the multi-ton shipping containers damage federal lands, threaten public safety and impede federal law enforcement’s ability to perform their duties.

The Justice Department is asking the court to order Arizona to stop installing the containers and remove them from the remote San Rafael Valley in Cochise County, as well as declare that Ducey’s executive order violates the Constitution.

Ducey, now in his final weeks in office, issued the executive order in August directing the state’s Department of Emergency and Military Affairs to “immediately” fill gaps in the border wall. His plan called for the state’s border with Mexico to be fortified with 60 double-stacked shipping containers, reinforced with concertina wire at the top. According to his office, the state-owned containers stand 22-feet high, weigh 8,800 pounds each and were bolted together and welded shut.

The federal government warned Arizona officials they are trespassing on federal lands and were violating federal law with the unauthorized placement of the containers, but the state continued with construction of the barrier. 

In late October, Ducey filed his own lawsuit against Department of Agriculture officials, calling on the court to find that the state has the constitutional authority to “stem the imminent danger of criminal and humanitarian crises related to the Arizona border.” The Justice Department is calling for the suit to be dismissed.

Construction of the wall of containers began in Yuma swiftly after Ducey issued his executive action, with the placement of containers on land overseen by the Interior Department’s Bureau of Reclamation and the National Forest System. 

As of Dec. 8, hundreds of the containers have been placed along the border on National Forest System lands for roughly four miles, according to the Justice Department’s lawsuit, and the state has cleared vegetation from at least two staging areas on National Forest System lands as part of the work. Most of the containers are within the bounds of the Roosevelt Reservation, a 60-foot strip of land along the U.S.-Mexico border, prosecutors said.

The Forest System and Bureau of Reclamation are at odds with Ducey over who has jurisdiction over the Roosevelt Reservation.

In a letter to the Justice Department on Tuesday responding to its intent to take legal action, Ducey’s office claimed prosecutors made “unfounded or inaccurate claims” in the notice and said “the number one public safety risk and environmental harm has come from inaction by the federal government to secure our border.”

“Arizona’s border barrier was always intended to be a temporary solution until the federal government erects a permanent solution,” Anni Foster, Ducey’s general counsel, wrote, noting that construction has ceased. “Arizona and contractors stand ready to assist in the removal of the barriers, but the federal government owes it to Arizonans and all Americans to release a timeline on when construction will begin and details about how it will secure the border while construction is underway.”

Ducey’s move has drawn pushback not only from the U.S. government, but also environmental organizations that warn the containers could endanger wildlife and harm natural water systems. The Center for Biological Diversity said Wednesday it intends to sue the governor’s administration and a state contractor for allegedly violating federal law by blocking streams and washes along the southern border with the shipping containers.

“Ducey’s shameful political stunt will starve the Southwest’s last free-flowing river of water, further jeopardizing one of Arizona’s crown jewels and an international birding mecca,” Robin Silver, a cofounder of the center, said in a statement. 

Environmental activists protesting the installation also stopped construction and plan to remain on the site until Gov.-elect Katie Hobbs takes office next month.

Ducey is set to leave office in the coming weeks, and Hobbs, who will be sworn in Jan. 5, said she will stop placement of the containers.

“It’s a political stunt. It’s a visual barrier that is not actually providing an effective barrier to entry, and I think a waste of taxpayer dollars,” she said, according to KJZZ.

Hobbs also said the containers are not stopping migrants from crossing into the U.S., citing pictures of people climbing over them.

The dispute between Ducey and the Biden administration comes as Republicans have pushed the White House to step up its efforts to address border security amid the sudden increase in the number of migrants arriving at the border. U.S. border officials stopped migrants more than 2.3 million times in fiscal year 2022, which ended Sept. 30, a record high.