Judge Denies Kumeyaay Injunction to Halt Border Wall on Ancestral Lands

by on August 28, 2020 · 0 comments

in Civil Rights, San Diego

By Kristina Davis / San Diego Union-Tribune / Aug. 27, 2020

A San Diego federal judge on Thursday denied a motion by a band of the Kumeyaay Nation to halt construction of a border wall being erected on ancestral land.

U.S. District Judge Anthony Battaglia said his decision to deny both a temporary restraining order and a preliminary injunction falls in line with the U.S. Supreme Court’s rulings in a similar border wall case, Trump v. Sierra Club. “I think the Supreme Court doesn’t always give us insight, and here they did,” Battaglia concluded, “and when they speak I think we are obligated to listen.”

The La Posta Band of Diegueno Mission Indians, one of 12 bands of the Kumeyaay people, filed the lawsuit against the Trump administration earlier this month, accusing the government of improperly funding the project and ignoring a duty to formally consult with the tribe on the impact to the land. Tribal members say the construction near Campo is disturbing sacred land where they believe cremated remains of ancestors may be buried.

A border fence has long sat on much of the disputed piece of property, which is owned by the federal government. The project calls for 14 miles of old-style fencing to be replaced with 30-foot steel bollards, with a 6-mile extension of the existing footprint. Construction is halfway complete. The government has used its authority to waive environmental and cultural consultation laws to forge ahead with the project, as it has done many times before. Even so, Department of Justice attorney Kathryn Davis described the government’s effort to consult with the tribe as “extensive,” including giving on-site access to four tribal monitors to assess potential artifacts or remains.

Michelle LePena, an attorney for the tribe, said that effort has fallen far short of the tribe’s expectations and the government’s obligations under the law. “There’s a real disconnect between what the government is saying in its papers and what’s actually occurring,” LePena told the judge.

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