At the mouth of a valley in the Huachuca Mountains, on the northern side of the U.S.-Mexico border, the governor of Arizona is picking a fight with the ghost of Theodore Roosevelt.
On Monday, Gov. Doug Ducey began dropping the first of thousands of shipping containers along a 10-mile stretch of national forest in open defiance of federal authorities. In the days since, the Republican governor has transformed a remote section of rugged desert into what looks like a junkyard. Along the way, he has set the stage for an unprecedented legal showdown with the feds — all just in time for a critical midterm election in Arizona.
The battle is over a 60-foot-wide swath known as the “Roosevelt Reservation” — named for the president and conservative icon that created it 115 years ago — that cuts through the Coronado National Memorial, running parallel to the border. During a visit Wednesday, The Intercept observed a fleet of trucks and construction vehicles stacking 8,000-pound shipping containers one by one on the dirt road, which has historically fallen under federal jurisdiction. In a lawsuit he filed three days before the installation began, Ducey admitted he had not received authorization for the project but was proceeding anyway.
“The feds are silent. Where are they?”
The governor’s actions create precisely the sort of state’s rights and border security confrontation the Biden administration would be inclined to avoid less than two weeks from the midterms. The situation has left environmental advocates racing to stop the project, which cuts through a corridor that is designated as critical for endangered jaguars. The environmentalists’ options, however, are limited.
Before the installation began, the Tucson-based Center for Biological Diversity separately filed a notice of intent to sue Ducey if he placed containers in the jaguar corridor. Under the Endangered Species Act, however, the governor has 60 days to change course before a court can issue an injunction. Based on the pace of installation observed this week, that could be enough time for Ducey to finish the project.
“That’s the tragedy of this whole scene and Ducey knows it,” Robin Silver, co-founder of the Center for Biological Diversity, told The Intercept. Silver said federal action, specifically from the National Forest Service, was needed stop Ducey. So far, there’s been no sign of that happening. “The feds are silent,” Silver said. “Where are they?”
Ducey’s press secretary, C.J. Karamargin, rejected the notion that the governor was courting a standoff with federal officials. “It is the responsibility of the federal government to secure our country’s borders,” Karamargin told The Intercept. “That’s the goal here. The goal is not to clash, to use your word, with the Forest Service or the Bureau of Reclamation, or any of the federal agencies that have jurisdiction over land on the border. The goal is for them to live up to their responsibility and protecting Arizonans is a responsibility Gov. Ducey takes seriously.” He added that Ducey was aiming to finish the project “as soon as possible.”
When asked this week about Ducey’s rogue container drop, a spokesperson for Coronado National Forest forwarded The Intercept’s questions to a U.S. Forest Service official in Washington. The official in D.C. directed questions to the Department of Justice, which did not respond. For Silver, the silence and inaction are inexcusable.
“This is public lands that are being trashed, and they’re being trashed illegally,” he said. “They’re supposed to go through the process. They need to get a permit to do what they’re doing, but they’re just flaunting the fact that the feds are derelict in protecting our public lands, and that’s Ducey’s plan.”
In his lawsuit, Ducey argued that the claim of exclusive federal jurisdiction over the Roosevelt Reservation could be illegitimate, that the courts should figure that out. Until they did, he said, Arizona would keep dropping shipping containers in the national forest because the state is experiencing an invasion. The defendants targeted in Ducey’s suit included Randy Moore, Chief of the U.S. Forest Service; Camille Calimlim Touton, commissioner of the U.S. Bureau of Reclamation, and their respective agencies; as well as Tom Vilsack, U.S. Secretary of Agriculture.
“Throughout the lawsuit, Arizona repeatedly acknowledges that it is not authorized under current federal law to do what it’s doing and is, in essence, asking a judge to find some kind of loophole,” Aaron Reichlin-Melnick, policy director at the American Immigration Council, told The Intercept. “This is pretty unprecedented.”
Heading into the midterms, Republicans have leaned hard on a narrative of embattled states facing off against the federal government.
On the border, Ducey and his party have pointed to record-setting apprehension figures as proof of lawlessness. Many of those apprehensions, however, reflect people making repeat crossings after being rapidly expelled under a Trump-era policy that severely restricts asylum-seekers at ports of entry. Despite Republican claims of inaction, President Joe Biden has presided over the removal of nearly 2 million people, and migrants continue to die in record numbers crossing his supposedly open border.
Ducey’s suit — filed in federal court by a team of private lawyers with Phoenix-based firm Snell & Wilmer — pointed to an “unprecedented crisis” in the state. “Rather than cooperate and work together with Arizona, the federal government has taken a bureaucratic and adversarial role,” the lawsuit said.
The alleged federal obstruction revolves around roughly two dozen gaps in the border wall that were left unfinished when President Donald Trump left office. Despite a vow Biden made not to add another foot to the wall, the Department of Homeland Security said last month that it would soon begin filling some of those gaps. That work, however, has not yet started. Ducey’s suit argued that the slow pace forced his hand and petitioned the court to declare that his extraordinary measures — already being undertaken despite federal objections — were legal.
The “invasion” described in Ducey’s complaint consisted of illegal immigration and public safety threats, particularly around the issue of fentanyl seizures. Many of the claims failed to connect the alleged harms to gaps in the border wall, such as the fact that nearly all fentanyl seizures occur at ports of entry, not between them.
Ducey’s suit is part of a wider Republican effort to leverage a border “invasion” as a legal justification to take drastic, unilateral steps at the state level. “They want to assert some kind of a constitutional authority for the states to be supreme over the federal government in certain circumstances,” Reichlin-Melnick said. “That’s just not how the Constitution works.”
Ducey began using shipping containers as ad hoc border barriers in August. He pointed to two Biden-era policy decisions as justification. The first was the pause on border wall construction. The second was the end of Trump’s “Remain in Mexico” program, which forced tens of thousands asylum seekers to wait out their cases in some of the world’s most dangerous cities, leading to thousands of reports of extortion, kidnapping, rape and, in some cases, murder, of migrant men, women, and children.
Outraged by the cancellation, Ducey issued an executive order to fill gaps in the border wall in Yuma, Arizona, in August. The border town has become an immigration flashpoint in recent years. In 2019, while Trump’s Remain in Mexico program was in full swing, Mayor Doug Nicholls declared a state of emergency after an influx of asylum-seekers. In 2021, he did the same under Biden. Ducey highlighted the second instance but did not mention the first when he announced his shipping container deployment.
“Arizona has had enough,” he said. “We can’t wait any longer. The Biden administration’s lack of urgency on border security is a dereliction of duty.”
Cash for the installation comes from the “Arizona Border Security Fund,” a $335 million investment that Ducey describes as “the most meaningful border security legislation in Arizona history.”
On its website, Ducey’s office said the Yuma project would cost taxpayers $6 million. Local TV station KWTX, however, obtained the contract for the construction, which put the total at $13 million — enough to pay for 130,000 new textbooks for Arizona students or more than 3.4 million school lunches. The much larger project underway in Coronado is expected to cost $95 million.
At Ducey’s direction, Arizona contracted AshBritt, a Florida-based disaster recovery firm, for the Yuma project — the politically-connected company would later be rehired for Coronado. In Yuma, AshBritt’s 25-person crew stacked and welded pairs of metal shipping containers more than 20 feet high and topped them with concertina wire. Following the first day of construction, two of the containers toppled into the dirt.
Within two weeks, the governor’s project had “3,820 feet of previously open border closed with 130 shipping containers.” Border Patrol encounters, however, increased in Yuma after the installation. In his lawsuit, Ducey cited a news article with the title: “Migrants at Arizona Border Unhindered by Shipping Container Wall.”
There were jurisdictional issues as well, with Ducey placing dozens of containers on land belonging to the Cocopah Indian Tribe despite the tribe’s demand that he not do so.
The project was an example of “the state fighting the feds,” Santa Cruz County, Arizona, Sheriff David Hathaway said in an interview, adding that the “ridiculous” moves were “not a good precedent for the future.”
Environmental advocates were anticipating a container deployment on Coronado weeks before it finally happened. Last month, Erick Meza, a borderlands coordinator with the Sierra Club, got a tip that scores of containers were piling up at a disused National Guard armory in Nogales, on the edge of the national forest. Unlike the paneled walls and vehicle barriers that stand along much of the border, the solid containers cut off virtually all animal migration and heighten flood risks.
“This is definitely a technique that we don’t support at all,” Meza told The Intercept in mid-September. “The wall is bad enough, but these are even worse.”
In an interview later that day, Ducey’s press secretary, Karamargin, said Ducey had yet to decide where the Nogales containers would go. He avoided giving a direct answer when asked if Ducey had sought clearance from the U.S. Forest Service to place the boxes on national forest land.
“We are reaching out to all stakeholders and have reached out and we’ll continue to do so about where shipping containers might be the most effective,” Karamargin told The Intercept. “So is the Forest Service among them, perhaps? I’m not sure. I don’t know if the people we have reached out to them.”
Arizona’s Division of Emergency Management, which answers to the governor, had in fact sought authorization from Coronado National Forest 10 days before Karamargin spoke to The Intercept.
The lawsuit Ducey filed this month included state-level correspondence with federal officials regarding shipping containers and Coronado National Memorial. The Intercept obtained additional communications between federal entities and the state.
The documents show that on September 17 officials from Ducey’s emergency management office — known by the acronym AZDEMA — emailed Coronado National Forest seeking “authorization to place barriers on National Forest land in all areas that currently have gaps in the federal wall.”
On October 6, Kerwin S. Dewberry, Coronado’s forest supervisor, sent a letter to the director AZDEMA, stating that over the course of two weeks he and his staff had verbally explained to AZDEMA officials that large-scale construction projects of the kind the governor wanted required participation in a federal regulatory approval process.
Though that process had not taken place, Dewberry wrote, Forest Service officials had nonetheless observed dozens of shipping containers, associated construction equipment, and private security personal on federal land for two consecutive days. “The Forest Service did not authorize this occupancy and use,” Dewberry wrote.
Maj. Gen. Kerry L. Muehlenbeck of AZDEMA fired back the following day. “Although your agency has participated in some calls with Arizona officials, no action has been taken to address the state’s concerns,” he wrote. “Due to the lack of response and pursuant to the directive by Governor Ducey, work will commence to close the referenced gap to ensure the safety of Arizona citizens.”
The response prompted an escalation from the Forest Service, with Michiko J. Martin, forester for the agency’s southwest region, reiterating the need for participation in a federal approval process. “To date, the State of Arizona has not pursued that process,” Martin wrote in an October 7 letter of his own. “As such, all state activities on National Forest land related to the shipping container project are occurring without the permits and authorization required.”
Two weeks later, Ducey filed his lawsuit. Three days after that, a caravan of pickup trucks dragging scores of hulking metal containers came rumbling into Coronado National Forest.
Up to this point, legal challenges Biden has faced on his immigration policies were rooted in claims of his alleged lawbreaking. Ducey’s lawsuit is something different, Reichlin-Melnick argued. “Here, Arizona is saying, ‘We want you to declare that the law doesn’t apply to us,’” he said. “That is a pretty radical difference, and it’s the first state to my knowledge that’s brought this kind of immigration relief challenge.”
“It’s designed purely to foment or promote more fearfulness among Ducey’s racist followers so more of them will show up and vote.”
Ironically, he noted, success in his lawsuit could undermine the core objective Ducey purports to seek. The argument is that the federal government is taking too long fill gaps in the wall. If Ducey’s claim succeeded and a court determined that the Roosevelt Reservation was not under federal jurisdiction, that could mean no federal gap filling at all — and no Border Patrol operations on the line either.
While Ducey’s lawsuit contends that Biden’s border security agents are failing to uphold the law in Southern Arizona, advocates on the ground say it’s the president’s land managers who are being held back.
Unlike the Center for Biological Diversity, the federal government’s most powerful tool for dealing with lawbreakers on its lands is not filing notices of intent that take weeks to process; it’s arresting them. “They should have already sent the officers out because there’s destruction of property,” said Silver, of the Center for Biological Diversity. “There’s physical destruction with no permit.”
The governor’s motivation is no mystery, Silver argued. “It’s a racist message and it’s designed purely to foment or promote more fearfulness among Ducey’s racist followers so more of them will show up and vote because they’re afraid of the invasion from the south by brown people,” he said. “That’s what this is all about.”