A lawsuit has been filed today in U.S. District Court in Washington, D.C., challenging the constitutionality of a federal waiver that cleared the way to build a controversial 3.5-mile border fence between San Diego and Tijuana.

Save Our Heritage Organization, a San Diego-based historic preservation group, and another nonprofit organization, have sued the federal government, charging that Homeland Security Secretary Michael Chertoff could not waive the federal laws that had prevented fence construction on the section between San Diego and Tijuana and another portion of fencing near Yuma, Ariz.

The plaintiffs are bringing the suit “to protect the natural, cultural, and historic resources

along the U.S.-Mexico border from imminent destruction at the hands of the federal government,” the complaint states.

The suit is led by Cory Briggs, a San Diego-based environmental lawyer who has sued once over the fence — and lost. That suit challenged Chertoff’s authority to waive the National Environmental Policy Act, which would have required a report of the fence’s environmental impacts.

“We’re no longer challenging the environmental impact statement, because there isn’t one,” Briggs said. “Now we’re just saying you need to follow the law.”

If it is completed, the fence would complete the 14-mile barrier separating San Diego and Tijuana. The project began in October 1994, as part of Operation Gatekeeper, which boosted border enforcement — more lights, more fencing, more Border Patrol agents — and pushed illegal immigration corridors into Arizona. Border Patrol arrests in San Diego County dropped from 531,000 in 1993 to 111,000 in 2003.

The federal government has 60 days to respond to the suit. Russ Knocke, a Department of Homeland Security spokesman, said he had not yet seen the suit.

“The secretary does have the legal authority to exercise waivers and has done so on two occasions,” Knocke said. “We’ll certainly make our case in a court of law.”

We’ll have more on this story later today.


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