Judge rejects emergency request to halt border wall work on O’odham Nation

A federal judge rejected the Tohono O’odham Nation’s injunction request Thursday, allowing the Trump administration to begin removing saguaros and ocotillos in the path of border wall construction in Arizona early next week.

On Monday, Riyaz A. Kanji, an attorney for the Tohono O’odham Nation, filed an emergency motion asking the Washington D.C court to intervene because the case has moved to the D.C. Circuit Court of Appeals and they have said they will not listen to arguments until later this year. The appellate court asked attorneys representing the Department of Homeland Security to file motions by Oct. 15 with replies from the tribe scheduled for Oct. 22.

However, DHS officials have said they intend to “commence significant activity on the reservation in furtherance of his border project” on Monday, Oct. 12. This will include the removal of thousands of saguaros and ocotillo that stand in the path of the construction project, Kanji wrote. “The destruction of massive numbers of saguaro cacti that will commence early next week absent intervention by this court constitutes quintessential irreparable harm.”

U.S. District Judge Richard Leon rejected the appeal on Thursday, writing in a 5-page decision that federal officials have “identified serious national security and public safety concerns at the international border” and an injunction would intrude into the “ordinary
process of administration and judicial review.” He said while tribal officials “identified weighty interests at stake in this case, I see no compelling reason to revisit my conclusion that the balance
of equities and public interest favor the government at this juncture.”

Leon’s decision runs against a ruling from a judge in Texas, who blocked border wall construction in the Big Bend region on Oct. 2. In her order, U.S. District Judge Kathleen Cardone ruled the plaintiffs — which includes the Tucson-based Center for Biological Diversity — were likely to succeed and she said a preliminary injunction against “ground-disturbing activities” would remain in effect while the suit moved through the court.

Earlier this summer, the nation sued the Trump administration, asking a federal judge to issue a preliminary injunction against the Department of Homeland Security, and block construction and “pre-construction” activities for a so-called “Smart Wall” along the reservation’s 62-mile border with Mexico.

After the lawsuit was filed, CBP awarded the project — dubbed Tucson 5 Project — to SLSCO LTD, a Texas construction company, backed by nearly $47 million in funding from Congress authorized last year.

CBP officials told the court a secondary wall was not part of the award to SLSCO, but said this was an “option.”

The agency also told the court construction wouldn’t begin until Oct. 12, or Columbus Day.

Kanji told the court saguaros are “among ‘the most sacred plants in O’odham religious tradition,’ which “’treats these plants as … sacraments, in much the same way that Christianity treats blessed bread and wine to be the sacramental Body and Blood of Christ,'” and “O’odham families gather their saguaro fruit in traditional locations and develop deep spiritual relationships with those specific cactus populations.”

Kanji told the court a single saguaro can take centuries to reach it’s full height, and while previous projects have included the relocation of saguaros, nearly half of the desert giants died, according to a Government Accountability Office report from 2023. He noted this fatality rate is especially high for the biggest and oldest saguaros, and relocation is “especially risky at this time of year” because cooler temperatures and moisture “promote decay in fresh transplants.”

On Aug. 14, Leon denied the tribe’s initial request to block the federal government from beginning construction, rejecting arguments an injunction was needed to prevent changes to the reservation’s boundaries and contractors from trespassing on its land.

“The international border is an area of great significance to both the United States and to the nation,” Leon wrote in his 18-page opinion.

“While I have concluded that a preliminary injunction is unwarranted, I fully expect the government in the months ahead to follow through on its guarantees of consolation and cooperation with the nation to address the nation’s concerns regarding border wall construction.”

Following Leon’s decision, tribal officials said they would consider all possible options for moving forward, “as this issue is simply too important to the O’odham,” said Verlon Jose, the chairman of the Tohono O’odham Nation.

The tribe later pushed for an expedited appeal with the D.C. Circuit Court of Appeals while challenging the project. In the meantime, tribal officials moved to cite border wall contractors. This lead to a standoff with federal law enforcement, including a Border Patrol tactical team, further straining the relationship between the tribe and CBP.

On Tuesday, members of the Tohono O’odham Nation held a procession from San Xavier del Bac to a prayer vigil where they highlighted the importance of saguaros—represented by two infant saguaros carried by two O’odham boys—and a cross that asked DHS officials not to crucify the sacred cacti.

Jose told the Tucson Sentinel the destruction of the saguaros on O’odham land was like razing a church because everything on the nation’s land is sacred. “Every plant, every stick and stone,” he said. ‘Every animal, every mountain top is sacred.”

He added DHS officials coming to transplant or raze the cacti and ocotillos were invading his backyard.

The desert, he said, is “a place of wisdom. It is a place of healing. It’s a place of gathering food. It’s a place of gathering shelter.” And removing the saguaros was akin to “removing people, killing our brothers and sisters,” he said. “All for a political statement.”