Advocates to fight fence construction

The U.S. Supreme Court refused to hear a case Monday calling into question the Bush administration's right to waive environmental laws to build a fence along the U.S.-Mexico border.

Environmental groups were hopeful that their legal challenge would halt construction of 700 miles of fence in the U.S. Southwest, or at least allow environmental agencies to have more input.

Advocates said Monday they were disappointed by the court's decision, but weren't giving up the fight.

"The Supreme Court's decision is unfortunate ... but there are still plenty of avenues to challenge (the fence)," said Oliver Bernstein, spokesman for the Sierra Club, one of the plaintiffs in the lawsuit.

Last year, Sierra Club and Defenders of Wildlife filed a federal suit challenging the 2005 Real ID Act, which gives U.S. Department of Homeland Security Secretary Michael Chertoff the authority to waive any environmental or other laws to secure the border.

Originally, the organizations sought to stop construction of fencing on the San Pedro Riparian National Conservation Area in Arizona, but when Chertoff invoked his waiver authority, a judge's injunction became moot. The groups then appealed to the Supreme Court.

A Department of Homeland Security spokeswoman said Monday that officials were pleased with the court's decision.

"The American people expect this department to enforce the rule of law at the border. Our efforts to do so sometimes result in lawsuits like this one, which the Court rejected," said spokeswoman Laura Keehner in a statement.

Some environmental advocates are hanging their hopes on a second federal lawsuit, which El Paso and Hudspeth counties and other organizations filed earlier this month.

The suit challenges the constitutionality of Chertoff's April waiver of environmental laws to expedite construction of the fence in four states, including Texas, and a 22-mile stretch of fencing in Hidalgo County. That case is still pending.

"I do have hope that the other case will be heard," said Noah Kahn, spokesman for Defenders of Wildlife. "It raises important constitutional issues, similar to the issues raised in our lawsuit."

Frontera Audubon Society, Friends of Laguna Atascosa National Wildlife Refuge and Friends of the Wildlife Corridor, all Valley-based organizations, also are plaintiffs in El Paso's suit.

"We have to keep our fingers crossed we will win in court, or if it goes to appeal, hopefully the Supreme Court will hear it," said Wayne Bartholomew, executive director of the Frontera Audubon Society.

Bernstein said he also thinks public sentiment is changing, and that more lawmakers are hoping to halt the fence's construction.

"The climate has changed and opposition has increased," Bernstein said. "I think it's far from a done deal."

Environmental advocates say the fence could severely limit endangered species' access to habitat and fresh water.