Filed Date: Oct. 21, 2022
Case Ongoing
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This case involved a challenge to the federal government’s jurisdiction over land at Arizona’s border with Mexico and the then-Governor's efforts to build a border wall.
The Governor of Arizona, Doug Ducey, filed suit in the U.S. District Court for the District of Arizona on October 21, 2022. Defendants included the Secretary of Agriculture (Thomas J. Vilsack), the Chief of the US Forest Service (Randy Moore, and the agency), and the Commissioner of the U.S. Bureau of Reclamation (Camille Calimlim Touton, and the agency). Judge David G. Campbell was assigned to the case.
The complaint alleged that Arizona’s southern border was in an “unprecedented crisis” as “[c]ountless migrants are crossing unsecured areas of the border” leading to “a mix of drug, crime, and humanitarian issues[.]” They further alleged that the halt to border wall construction in early 2021 had “left numerous gaps” that “fail to provide a meaningful barrier across the State, making it significantly easier for foreign nationals to cross illegally[.]” As such, Arizona had taken numerous actions prior to the filing of this complaint. The state legislature had authorized $400 million in funding to fill these “gaps” effective on July 1, 2022. The following month, the governor authorized the Arizona Department of Emergency and Military Affairs to use this funding to close the gaps. This included a temporary measure of “double-stacking multi-ton shipping containers[.]” However, the U.S. Bureau of Reclamation (BOR) and the U.S. Forest Service asserted jurisdiction over the lands at the border and refused to authorize Arizona to construct any further barriers.
Arizona asserted six claims:
First, they argued that Proclamation 758 issued in 1907 by President Roosevelt exceeded executive power granted under Article II. The Proclamation declared all land within 60 feet of the Mexican border as federal public land (hereinafter: Roosevelt Reservation). Arizona argued that the Proclamation was unlawful as Article II did not expressly authorize the president to act on this without congressional approval. As such, federal agencies like BOR and the Forest Service lacked jurisdiction. Further, Arizona did not need to exhaust administrative remedies as they were challenging the legal status of the Roosevelt Reservation and not an agency decision.
Second, they argued that the federal agencies’ action was exceeded authority. They cited a March 2006 Memorandum of Understanding (MOU) between the U.S. Department of Homeland Security (DHS), the U.S. Department of the Interior (DOI), and the U.S. Department of Agriculture (USDA). The MOU stated that the Roosevelt Reservation was “outside the oversight or control of land managers.” As the Forest Service and BOR are part of the USDA and DOI respectively, they effectively agreed and accordingly must abide by the MOU and thus lack jurisdiction. In addition, the MOU stated that DHS and its components are statutorily mandated to control and guard the nation’s borders.
Third, they argued that Arizona at least has concurrent jurisdiction with the federal government over the Roosevelt Reservation. They cited U.S. Supreme Court precedent stating that a state generally has complete jurisdiction over lands within its exterior borders. Additionally, they argued that since Arizona was admitted to the Union in 1912, 5 years after the Proclamation at issue, the US did not retain exclusive jurisdiction.
Fourth, they argued that the federal agencies’ blockage of Arizona’s actions violated Article I and Article IV of the U.S. Constitution. Article I, Section 10 authorizes states when “actually invaded, or in such imminent Danger” to take certain actions to protect themselves. Article IV Section 4 requires that the federal government “protect each of the [States] against Invasion[.]” For this, Arizona argued that the federal government was blocking Arizona’s constitutional right to defend itself while abdicating their responsibility under Article IV.
Fifth, Arizona argued that even if they don’t have concurrent jurisdiction over the Roosevelt Reservation, it is at most an easement over the state’s underlying possession of the land. As such, the federal government’s attempt to exert exclusive jurisdiction over the area is unlawful.
Finally, they briefly asserted a nuisance claim, arguing that the border situation and the “criminal and humanitarian crises” arising from it harm the state’s wellbeing.
Arizona sought an injunction barring the defendants from attempting to exercise exclusive jurisdiction over the Roosevelt Reservation and to allow Arizona to take action in the area both separately and in coordination with federal partners. Arizona sought various forms of declaratory relief. First, that the Roosevelt Reservation was unconstitutional. Second, that Arizona retained the constitutional authority to take remedial action to fill the “gaps” in its border. Third, that neither the Forest Service nor BOR possessed exclusive jurisdiction over the Roosevelt Reservation, and that the agencies at most had concurrent jurisdiction or in the alternative, the Roosevelt Reservation is only an easement. Finally, a declaration that the border situation constituted a nuisance under the law.
No significant actions occurred in the case prior to the state gubernatorial election on November 8, 2022.
The federal government filed a motion to dismiss the case on November 23, 2022. The federal government argued that Arizona was barred from challenging the Roosevelt Reservation by federal sovereign immunity, and that even if the federal government waived sovereign immunity, Arizona would still fail because the statute of limitations prevents any challenge to the Roosevelt Reservation, the Reservation was a valid exercise of executive authority, and that the Reservation did not divest land from state ownership. In addition, the federal government did not and could not have divested themselves of jurisdiction over federal lands through the Memorandum of Understanding. Arizona's claim of concurrent jurisdiction failed to give Governor Ducey the authority to occupy and use federal lands absent the consent of Congress. The federal government argued that Arizona's remaining claims raised non-justiciable political questions.
Arizona filed a response on December 23, 2022, reiterating its complaint and pressing the urgency of the border crisis.
This case is ongoing, however, Governor-elect Katie Hobbs consistently opposed construction of the wall during her campaign.
Summary Authors
Eric Gripp (11/28/2022)
See docket on RECAP: https://www.courtlistener.com/docket/65598102/ducey-v-moore/
Last updated Jan. 19, 2023, 3:25 a.m.
State / Territory: Arizona
Case Type(s):
Key Dates
Filing Date: Oct. 21, 2022
Case Ongoing: Yes
Plaintiffs
Plaintiff Description:
Doug Ducey, Governor of Arizona 2015-2023.
Plaintiff Type(s):
Public Interest Lawyer: No
Filed Pro Se: No
Class Action Sought: No
Class Action Outcome: Not sought
Defendants
U.S. Department of Agriculture (Washington, District of Columbia), Federal
U.S. Forest Service (Washington, District of Columbia), Federal
U.S. Bureau of Reclamation (Washington, District of Columbia), Federal
Defendant Type(s):
Case Details
Causes of Action:
Declaratory Judgment Act, 28 U.S.C. § 2201
Constitutional Clause(s):
Federalism (including 10th Amendment)
Available Documents:
Outcome
Prevailing Party: None Yet / None
Nature of Relief:
Source of Relief:
Issues
Immigration/Border: