For the second time since August, a federal judge has refused to halt border wall construction in a San Diego sector that local Indians consider sacred ancestral burial grounds.
On Wednesday, Judge Anthony Battaglia in San Diego denied a motion for a temporary restraining order from the La Posta Band of Diegueno Mission Indians.
“The tribe asserts new allegations of harm associated with recent discoveries of cultural sites and items in the El Centro A Project Area,” Battaglia noted, citing finds of possible human remains at fire pits used for cremation at Kumeyaay cultural sites.
“But upon close review of these new allegations, the Court concludes that La Posta has not met their high burden for the extraordinary relief” of a halt via restraining order, he said in a 15-page order.
Michelle LaPena, an attorney for the Indian band, said she and her clients were disappointed with the denial but pointed to a Jan. 14 hearing on their request for a preliminary injunction.
“We are hopeful that our full case will result in the appropriate outcome, which would be an injunction preventing further construction,” she said Thursday via email. “There is still a lot of work that will be done along the border wall, including trenching along the full wall for lighting and other infrastructure.”
She said damage to tribal cultural resources would continue without an injunction.
“But we are hopeful that the new [Biden] administration will work with us to develop a plan for cultural resource protection in the borderlands,” she wrote.
The La Posta band succeeded on other motions, however.
Judge Battaglia granted a request to seal a series of individual reports on the exact locations of the cultural sites — keeping them secret for now.
“The Court finds that compelling reasons justify sealing the declaration as ‘court files might … become a vehicle for improper purposes,’” Battaglia wrote.
Battaglia said the locations of tribal cultural sites are kept confidential by Kumeyaay tribes and revealed only to qualified recipients.
“La Posta explains the policy behind the confidentiality of archaeological and sacred sites is ‘to protect them from physical and spiritual vandalism and looting. If the confidential information in these declarations is publicly disclosed, it could be exploited, causing harm to the Tribe,’” he said.
In addition, he said, California and federal public records law exempt the particular records from disclosure, such as Native American graves, cemeteries, and sacred places and records of Native American places, features, and objects.
On Aug. 11, La Posta sued President Trump, Homeland Security Secretary Chad Wolf, then Defense Secretary Mark Esper and others to halt border wall construction. But two weeks later, Battaglia denied motions for a TRO and preliminary injunction.
He said at the time that the tribe failed to meet the burden of proof that it likely would prevail at trial.
Battaglia accepted government assertions that halting work now would cause severe funding problems down the line. He also cited “the huge influx of drugs that we’re facing as a country — evidenced by looking at my calendars on Mondays.”
He said the La Posta band “doesn’t go beyond speculation for the most part” on the existence of burial grounds where wall work is being done.
In Wednesday’s order, Battaglia found similar weaknesses in the La Posta arguments.
Regarding circle discoveries, including one 120 feet in diameter, marked with a perimeter of stones and rock cairns, the Obama-appointed judge said the government called them the result of “ATV enthusiasts.” In any case, the circles “are either factually disputed or fall outside of the area of construction.”
As for bone fragments, “even if mitigation procedures were not in place to prevent irreparable damage, factual disputes hinder La Posta’s ability to obtain immediate injunctive relief,” he said.
While La Posta’s medical examiner said the bone fragments are likely human bones, a Customs and Border Patrol archeologist concluded the bones were more likely to belong to an animal.
“With these factual disputes and mitigation procedures, La Posta has fallen short of their burden of establishing irreparable harm based on these fire features and bone fragments,” Battaglia said.
La Posta also cited interference with stargazing as another source of irreparable harm — with border lights causing light pollution.
“As with the fire features discussed above, the Government has indicated it can take ‘steps to minimize light spillage, including through the installation of light shields that allow the light to spill downward, not upwards or horizontally,’” the judge said.
“With these mitigation measures, the Court cannot deem that the installation of lighting would cause irreparable harm sufficient for a TRO.”
Battaglia didn’t consider another new argument by La Posta — that courts have found Wolf didn’t have legal authority to order border wall construction.
But Battaglia denied government lawyers permission to file a sur-reply on that issue — an extra shot at answering a motion already fully argued by both sides.
La Posta also contends the border project violates the National Environmental Policy Act, the National Historic Preservation Act, the Native American Graves Protection and Repatriation Act and the Endangered Species Act.
Battaglia will hear arguments at 2 p.m. Jan. 14 in Courtroom 4A in the downtown federal courthouse, 221 W. Broadway.