By Ken Stone
Fearing ongoing destruction of sacred tribal grounds, an East County band of Mission Indians has asked a federal appeals court to halt work on sections of border wall.
On Aug. 27, the La Posta tribe was denied a preliminary injunction by San Diego federal Judge Anthony Battaglia, who said the tribe failed to meet the burden of proof that it likely would prevail at trial.
So last week, La Posta attorney Michelle LaPena filed an appeal with the 9th U.S. Circuit, writing that “unlawful construction of the border wall and associated infrastructure” by defendants Donald Trump and others “is permanently destroying La Posta’s religious and cultural heritage.”On Thursday, the San Francisco-based appeals court ordered La Posta to submit its opening brief by Oct. 6 — agreeing to its request for an expedited hearing. (The government didn’t object.)
The government’s answering argument is due Nov. 3, and an optional reply brief is due within 21 days after that.
LaPena noted the case of Sierra Club v. Trump — where the 9th Circuit ordered a halt to a different section of border wall on the basis that the funds were illegally acquired and the resulting harm to environment outweighed any harm due to the injunction.
“The Federal Defendants’ construction of the border barrier section that is the subject of this appeal replicates the same illegal funding mechanism,” LaPena wrote. “Worse, the construction is excavating and pulverizing burial grounds and other geographic features that are sacred to La Posta and its citizens.”
But the U.S. Supreme Court disagreed in the Sierra Club case, allowing work to continue for now.
Such “desecration” of sacred Kumeyaay areas would continue pending the present appeal, LaPena said.
But LaPena said Battaglia appeared not not well-versed in tribal issues.
“There was a cremation/burial confirmed by the medical examiner,” she said Tuesday via email.
“We believe that our appeal, which is steeped in precedent from the 9th Circuit, has a good chance of success,” she said. “Our goal right now is to have it heard as soon as possible” in October by a three-judge panel.
“We have no signal about who will hear the appeal, but we hope it will be the panel that heard the Sierra Club case,” she said.
On Feb. 7, Defense Secretary Mark Esper OK’d construction and funding for 31 border wall segments. The local band sought to halt two — “San Diego A,” consisting of three segments totaling three miles of new primary pedestrian fencing and 14 miles of replacement pedestrian fencing in San Diego County, and “El Centro A,” made up of three miles of new pedestrian fencing in Imperial County.
Esper is among the defendants in the case, along with Chad Wolf, acting U.S. secretary of Homeland Security, and Todd Semonite, commanding general of the U.S. Army Corps of Engineers.
Meanwhile, three Justice Department officials were added to the government’s legal team: Michael Shih, H. Thomas Byron III and Anne Murphy, all based in Washington.
Updated at 1:45 p.m. Sept. 15, 2020
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