SIERRA VISTA — After an eight-month wait, the U.S. Court of Appeals Ninth District ruled Friday in a two to-one decision the Trump administration lacked authority to divert $2.5 billion in military funding for building portions of the 30-foot bollard wall along the border in Arizona, California and New Mexico.
On June 26, Chief Judge Sidney R. Thomas and Judge Kim McLane, both appointed by President Bill Clinton, ruled in favor of the suit brought by the Sierra Club, and the Southern Borders Communities Coalition represented by the American Civil Liberties Union. Judge Thom Collins, appointed by President Donald Trump, dissented.
The suit was brought against Trump, Sec. of Defense Mark Esper, acting Sec. of the Department of Homeland Security Chad Wolf and Sec. of the Treasury Steve Mnuchin.
The opinion written by Thomas stated, ”We conclude the transfers were not authorized, and the plaintiffs have a cause of action. We hold Section 8005 did not authorize the transfer of funds here because the border wall was not an unforeseen military requirement and funding for the wall had been denied by Congress.”
Section 8005 reads, “Upon determination by the Secretary of Defense that such action is necessary in the national interest, he may, with the approval of the Office of Management and Budget, transfer not to exceed $4,000,000,000 of working capital funds of the Department of Defense provided, such authority to transfer may not be used unless for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress.”
Congress did deny the use of some funds for the border wall, but the Trump administration declared the border in crisis and as such, an emergency, which allowed the use of DOD funds.
Upon waiving all environmental laws and regulations for the building of the border wall, environmental groups, border community organizations, Native American tribes and elected officials began the long legal process to stop construction for a myriad of reasons back in 2018.
Heated exchanges continued through 2019 and into 2020 as the administration pushed forward on construction even as the legality of the funding used was being adjudicated.
The judges agreed with the district court that Sierra Club would suffer irreparable harm to its recreational and aesthetic interests absent an injunction to prohibit construction. Second, they agreed “with the district court that the balance of equities and the public interest favored injunctive relief,” but “did not require the panel to vacate the injunction.”
He continued quoting past cases in the judiciary, “The straightforward and explicit command of the Appropriations Clause means simply that no money can be paid out of the treasury unless it has been appropriated by an act of Congress.”
“The clause is a bulwark of the Constitution’s separation of powers. It assures that public funds will be spent according to the public letter of the difficult judgements reached by Congress as to the common good and not according to the individual favor of government agents. Without it, the executive would possess an unbounded power over the public purse of the nation and might apply all its moneyed resources at his pleasure.”
Judge Collins dissented. He agreed the Sierra Club established its standing, but in his view the organizations lacked any cause of action to challenge the fund transfers. Even assuming that they had a cause of action, Judge Collins concluded that “the transfers were lawful.”
Dror Ladin, staff attorney with the ACLU’s National Security Project which represented the plaintiffs, said “This ruling is a win for equal protection under the law, the environment, and border communities.”
“President Trump’s xenophobic wall is already leveling protected lands, desecrating cultural sites and destroying wildlife. There’s no undoing the damage that’s been done, but we will be back before the Supreme Court to finally put a stop to this destructive wall,” Ladin said, in anticipation of an appeal by the administration.
Gloria Smith, Managing Attorney at the Sierra Club, said, “Today’s decision is monumental for our border communities and desert wildlands. The appeals court ruled against Trump’s unconstitutional wall construction. We should be protecting communities, our democracy, and the environment, not tearing these things apart as Trump hoped to do.”
“We rise with border communities to stop this administration from further inflicting its relentless agenda — harming the people and places we know and love.”
Dan Millis, Sierra Club Borderland Programs Manager in an interview Friday noted, “I’m glad we won this. I hope the U.S. Supreme Court will see this ruling as they make their decision on stopping the border wall construction. We have won every argument we have made. The walls are damaging our communities and our wildlife and they need to pull the plug.”
Though SCOTUS temporarily overturned a stop order injunction, Millis and all the other environmental and community agencies included in the suit are still hopeful they will prevail and end the construction, which they say will prevent the destruction of fragile, protected desert wildlands, springs and waterways.
“We don’t expect this judgement to stop construction,” he added. “And we don’t know when SCOTUS will make a decision.”
“It does not mean immediate relief for communities and landscapes impacted now or recently by new walls. The Supreme Court’s stay of the District Court’s injunction that we won last year is still in place, so the imposition of new walls, blockage of waterways and wildlife movements, and destruction of sacred Indigenous sites continues until that stay is lifted.”
“Also, our case does not challenge walls that are Congressionally-funded, which includes most of the walls currently being imposed on the Lower Rio Grande Valley in South Texas, leaving communities exposed to extreme flood danger this hurricane season, among other damages.”
A Department of Homeland Security spokesman, Alexei Woltornist, said on Friday that the department was “sorely disappointed in this decision,” according to the New York Times.
For Cochise County, construction along the border through the San Pedro Riparian National Conservation Area (SPRNCA) is halted, but that is due to the monsoon season, according to Customs and Border Patrol (CBP).
In a stakeholders meeting June 19, CBP met with a “handful” of people including Millis.
“They really didn’t have any stakeholders there,” Millis said.
He said CBP plans to install the 30-foot-tall bollard style fencing now used along the border in the riverbed of the San Pedro. The CBP included a drawing of the fence, which will have gates the Border Patrol agents will open and close during the monsoon to allow water and vegetative debris to flow through the more than 200-foot wide floodplain, he explained.
Currently, there are vehicle barriers in the river, which collect snags of cottonwood and willow trees, mesquite and all manner of vegetation, he said. Those barriers work and allow the river to overflow its normal banks and keep water moving downstream.
“What they proposed is a joke,” Millis said. “It’s ridiculous. They’re going to have these swing gates open for months at a time. How does that stop anyone? Why build gates large enough for trucks to drive through? The monsoon will rip it out.”
Just as important to him is the diversion of funds for the U.S. military and “our troops. We’re supposed to support them. Instead, we’re wasting money and destroying our communities.”