Saturday, Feb. 10, 2007 | A local historic preservation organization filed suit Friday 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 Organisation, 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 legally waive federal laws that stood in the way of fence construction between San Diego and Tijuana and another border fence east of 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.”

For fence opponents, the latest suit is likely their last chance to stop the San Diego-Tijuana fence’s construction, which is already underway in some places.

If it is built, 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. The effort reduced traffic through the sensitive Tijuana Estuary, which sits between the border and Imperial Beach. It helped cut Border Patrol arrests in San Diego County from 531,000 in 1993 to 111,000 in 2003.

Most of the double-layered fence was finished in the mid-1990s, except for a 3.5-mile section held up by environmental litigation. In 2005, Congress granted the DHS secretary the ability to waive all laws that prevented construction. He used it later that year to permit the project, which would cleave off the tops of two mesas to fill in the notorious border crossing known as Smuggler’s Gulch.

Chertoff used the waiver again in January to clear the way for 37 miles of fencing east of Yuma, Ariz., along the Barry M. Goldwater Range, a bombing range used by the U.S. Air Force.

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

“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.”

A spokeswoman for U.S. Customs and Border Protection, which is also named in the litigation, said the office had not received the suit and declined comment.

The fence holds both positives and negatives for the estuary. The existing fencing has helped reduce immigrant foot traffic and litter. But environmentalists worry that a wider fence’s construction and presence would exacerbate the problematic sediment that washes into the nearby Tijuana Estuary, a salt marsh home to five species of endangered birds and a migratory stop for another 370 species. The estuary already struggles to assimilate soil sent sweeping down from rainfalls on Tijuana’s overdeveloped hillside colonias.

The lawsuit argues that the federal waiver ignored the impacts to a host of endangered species in both San Diego and Arizona. The suit says the fence must comply with laws such as the Clean Water Act, National Historic Preservation Act and Migratory Bird Treaty Act.

Bruce Coons, executive director of Save Our Heritage Organisation, said using electronic surveillance — typically called a virtual fence — would be a better alternative in environmentally and historically sensitive areas. That would avoid removing Native American cultural sites, including one where Coons said Father Junipero Serra first spotted San Diego Bay. It sits in the fence’s path.

“We believe there are other ways to construct this fence,” Coons said.

Coons’ group was joined in the suit by the nonprofit Friends of the U.S.-Mexico Border Environment.

The case illustrates just how sensitive the border and illegal immigration are in Washington. Fence opponents had been hopeful the Democratic-controlled Congress would revisit the San Diego-Tijuana fence. But Democrats, who largely supported 700 miles of new fencing approved last year, have shown no signs of interest in the local fence issue. At the same time, they have not funded the 700-mile fence.

Stephen Mumme, a political science professor at Colorado State University and fence critic, said the latest border fence suit will allow federal courts to test the limits of sweeping authority President Bush has secured in the name of the global war on terror.

“You’re going to start to see where the limits of this constitutional authority actually lies,” Mumme said. “There must be a constitutional handle, because this is so unprecedented I think that the courts will want to look at it in greater detail — essentially doing the work of Congress — looking at the kind of problems that could ensue in simply giving [fence construction] an unjustified priority over everything else.”

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