US Federal Court: Big Bend Border Construction Pause Agreement Reached

• A federal court agreement extended a pause on border security construction in Big Bend National Park until September 15.
• The agreement stems from a DHS Big Bend National Park lawsuit filed by Far Flung Outdoor Center and People of La Junta for Preservation.
• Plaintiffs argue the construction violates their Indigenous religious freedom under the Religious Freedom Restoration Act (RFRA).
• DHS had previously waived environmental statutes for border construction but stated no pedestrian barrier is planned for the park, only a vehicle barrier.
• The Big Bend Sector, covering 25% of the southern border, has the fewest apprehensions, and its terrain naturally deters illegal crossings, according to plaintiff witnesses.

This case highlights that even when federal agencies waive environmental statutes for infrastructure projects, challenges based on the Religious Freedom Restoration Act (RFRA) can still lead to project pauses and negotiations.

A federal court in San Antonio recently saw an agreement reached between the Trump administration and two West Texas entities, extending a halt on border security construction within Big Bend National Park. This development emerged from a lawsuit filed by the Far Flung Outdoor Center, an adventure guide business based in Terlingua, and the People of La Junta for Preservation, a nonprofit organization affiliated with the Lipan Apache Tribe. The plaintiffs had sought an injunction to prevent the Department of Homeland Security (DHS) and Customs and Border Protection (CBP) from proceeding with construction.

The agreement, announced by U.S. District Court Judge Orlando Garcia, a Bill Clinton appointee, at the conclusion of an emergency hearing, pushes the construction pause until September 15. This extends an earlier halt ordered by CBP Commissioner Rodney Scott, which was set to expire at the end of August. The lawsuit was prompted by reports earlier in the month detailing bulldozers actively clearing habitat within the park, sparking public outcry and the subsequent legal action.

The plaintiffs contend that the ongoing border infrastructure projects threaten land crucial to their livelihoods and religious practices. Ana Rojas also protested the construction outside the courthouse ahead of the federal hearing. The temporary reprieve is intended to provide both sides additional time to address the complex issues at hand, as noted by Judge Garcia.

Central to the plaintiffs' legal challenge is the assertion that border construction activities infringe upon their rights under the Religious Freedom Restoration Act (RFRA). This federal statute prohibits the government from substantially burdening a person's exercise of religion unless it demonstrates a compelling governmental interest and uses the least restrictive means to further that interest. Christina Hernandez, founder and director of People of La Junta for Preservation and a plaintiff in the case, testified during the hearing about the profound impact of the construction.

Hernandez explained that losing access to sacred sites within the park would directly impede her ability to practice her Indigenous faith. She affirmed that the land in both the national and state parks serves as a spiritual sanctuary, akin to a synagogue, mosque, or chapel. Specifically, Hernandez stated that being disconnected from the river would obstruct her religious practices.

Roland Gutierrez, an attorney for the plaintiffs and a Democratic state senator, argued that even if the DHS Secretary were to issue another determination waiving RFRA, the government still lacks a compelling reason to justify barriers in the park. He highlighted that the Big Bend Sector, despite encompassing 25% of the southern border, records the fewest apprehensions for illegal crossings, suggesting a lower security threat compared to other regions. This argument was further supported by Terrell County Sheriff Thaddeus C. Cleveland, a former Border Patrol agent of 26 years, who testified that the area's rugged terrain and scarcity of roads naturally deter individuals attempting to cross the border unlawfully.

The Department of Homeland Security has been actively pursuing the expansion of border security infrastructure along the Texas-Mexico border throughout the year, including in sensitive areas like Big Bend National Park and Big Bend Ranch State Park. On June 9, DHS Secretary Markwayne Mullin exercised his authority to waive several federal environmental and historic preservation statutes. These US border wall environmental waivers were issued with the stated purpose of ensuring the rapid construction of barriers and roads near the international land border in Texas.

However, U.S. Attorney Pamala Amaechi, representing DHS, clarified during Friday's hearing that no pedestrian barrier is slated for construction within Big Bend National Park itself. Amaechi stated that the only barrier planned for the park would be a vehicle barrier. Despite this clarification, the plaintiffs maintain that while the administration possesses the authority to waive federal laws for border barrier construction, such projects cannot override their rights protected by the Religious Freedom Restoration Act.

Amaechi, on behalf of DHS, rejected the plaintiffs' arguments, reiterating the department's fundamental responsibility for maintaining operational control of the border. This stance underscores the federal government's perspective on national security imperatives, even when faced with challenges rooted in religious freedom and environmental concerns.

The temporary Big Bend border construction pause agreement underscores the complex interplay between national security objectives, environmental protection, and religious freedom, particularly concerning Indigenous rights. Judge Orlando Garcia's observation that "It sounds like the government can do what it wants to do, but that does not mean it should," encapsulates the ethical dimension of federal actions, even when legally permissible through waivers. This case highlights that even when federal agencies waive environmental statutes for infrastructure projects, challenges based on the Religious Freedom Restoration Act (RFRA) can still lead to project pauses and negotiations.

The agreement offers a brief window for further dialogue, but the underlying dispute remains. The plaintiffs' success in securing even a temporary halt and a commitment against a pedestrian barrier in the park demonstrates the potential for RFRA challenges to influence border security developments. The unique characteristics of the Big Bend region, with its vast and challenging terrain, further complicate the rationale for extensive barrier construction, as argued by the plaintiffs and their witnesses. The outcome of these ongoing discussions will be closely watched as it could set precedents for future border infrastructure projects impacting culturally significant lands.

This case highlights that even when federal agencies waive environmental statutes for infrastructure projects, challenges based on the Religious Freedom Restoration Act (RFRA) can still lead to project pauses and negotiations. Lawyers should note RFRA's potential as a tool to protect religious practices against government actions, particularly concerning land use and Indigenous rights, and monitor how such agreements influence future border security developments.

Source: Original reporting via Courthouse News Service