Earth Law: A New Voice for America’s Southern Borderlands

Santa Rita Mountains, Southern Arizona Photo by J. Brun

Santa Rita Mountains, Southern Arizona Photo by J. Brun

By Janay Brun

Rain mists down upon the symphony of languages: silent whispers of butterfly wings, chirps, screams, whistles, and beeps of the feathered flock, a meow from the puma, the cough of a jaguar, snorting from a white-tailed deer, and the persistent buzz of a black tailed rattlesnake. The moisture feeds the hibernating seeds of penstemon, columbine, poppies, and owl clover. 

Afterwards, the people of this community emerge from their homes to breathe in the pungent resinous scent of the creosote − only released in strength after rain. The inhabitants of this land depend on an individual that has a complex body. A body created from fire and water, intertwined with vessels and molecules under and above the desert floor, combined with cells in the tree canopy, and the respiration of the atmosphere. This is the Sonoran Desert.

Southern Borderlands

The Sonoran Desert is an individual in a community referred to as the borderlands. The borderlands comprise the 1,954 mile length of the international border between the United States and Mexico. The U.S. – Mexico border includes: six national parks, 700 species of vertebrates, 500 species of birds, 25,000,000 acres of protected public lands, three mountain chains and the two largest deserts in North America. [1]

Currently, this community is under siege. The Trump Administration is continuing the tradition of the past two U.S. Presidents in fortifying the southern border with more Border Patrol agents, surveillance towers, underground sensors, and the most destructive of all – border walls and fencing. 

Border Wall dividing Sasabe, Arizona, U.S. from El Sásabe, Sonora, Mexico. Photo by J. Brun

Border Wall dividing Sasabe, Arizona, U.S. from El Sásabe, Sonora, Mexico. Photo by J. Brun

Threats to the Borderlands

From the Pacific Ocean to the Gulf of Mexico, the borderland community is already divided in some areas with 700 miles of border infrastructure that includes vehicle barriers, pedestrian fencing, and walls.

Animals living in the Texas gulf, California coasts, and the “sky island” Madrean archipelago habitat in southeastern Arizona are most vulnerable to the expansion of border infrastructure. [2] Loss of mobility and genetic diversity plus habitat fragmentation could have devastating impacts on the future viability of these biologically diverse areas. A United States Fish and Wildlife report estimates that a border wall could negatively affect 111 endangered species, 108 migratory birds, four wildlife refuges and fish hatcheries, and an unknown number of protected wetlands. [3]

Endangered mammals such as the ocelot, jaguar, Peninsular bighorn sheep, and pronghorn antelope live along the line between the two nations. Coues white-tail deer, black bear, Mearn’s quail, the vine snake, arroyo toad, and the low flying cactus ferruginous pygmy owl call portions of the borderlands home. More species such as the endangered Quino checkerspot butterfly, West Indian manatees, and the bald eagle could feel negative impacts from the wall as well. 

A lone, endangered Mexican gray wolf released by biologists in Chihuahua, Mexico traveled north across the border traveling west of Las Cruces, New Mexico, then followed the Rio Grande back into Mexico. Buffalo, also from Chihuahua, have crossed into New Mexico. [4] 

There are six cross-border communities in the borderlands. There are burial grounds, and sacred grounds. There are private lands, farm and ranch lands, ancestral lands, and deeded lands that date back to before there was a Mexico and a United States. There are various cultures and millions of families. There are indigenous nations and multi-cultural cities. There is diversity in plant life, microbial life, bug life, rock types, and various bodies of water. Everything under the sky in the borderlands region is diverse, interwoven, and dependent on each other. There is no place for a wall here and in the Tohono O’odham language that word doesn’t even exist. Nonetheless, more wall is coming.

On March 23, 2018 President Trump signed into law a congressional spending bill that allotted 1.6 billion dollars for border spending that includes funding for border wall repair and construction. That figure falls short of Trump’s demand for over 20 billion and now there are reports that he wants the military to make up for that spending deficit. [5] The Rio Grande Valley in Texas is Trump’s choice for ground zero in his bid to fulfill a campaign promise for a border wall.

The Rio Grande Valley is home to the endangered ocelot. It is also a birder’s mecca where 500 species of birds have been documented as it is part of the migration corridor. Rare species that are seen nowhere else draw hundreds of thousands of tourists from all walks of life each year for a chance to view the likes of the green jay, buff-bellied hummingbird, and great kiskadee. At the National Butterfly Center 236 species of butterflies have been documented. [6]

And then there is the water of the mighty Rio Grande. A life force for all that migrate through and live in the area but also a potential deadly force when it comes to flooding. And floods will happen as water gets trapped by the walls and levees that Trump will build. How can so much destruction go unanswered?

Defending the Borderlands

A recent court case was brought before the Southern California District Court challenging the validity of waiving numerous laws to build the border wall prototypes and replace portions of the Calexico and San Diego walls. Unfortunately, in this case, Judge Curiel reaffirmed the authority of the Secretary of Homeland Security to:

"...take such actions as may be necessary to install additional physical barriers and roads (including the removal of obstacles to detection of illegal entrants) in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States." [7]

The ruling also stated that the Secretary’s authority includes the discretion to waive numerous federal laws including environmental ones which protect our air, water, ecosystems, and endangered species. But the fight isn’t over. This decision is being appealed.

The Center for Biological Diversity, Southwestern Environmental Center, Animal League Defense Fund, and Defenders of Wildlife have brought a similar suit in New Mexico challenging the validity of waiving the laws. At issue is that the waivers were established back in 2005-06 to complete the portions of the border wall that the Bush Administration wanted. That mandated construction is now over, so shouldn’t the waivers have expired? The groups are fighting to keep 25 laws intact to stop the construction of 20 miles of border wall west of El Paso, Texas at the Santa Teresa port of entry. [8]

There was a favorable result in the Rio Grande Valley for the “jewel” of the federal wildlife refuge system. The Santa Ana National Wildlife Refuge was granted a temporary stay from Trump’s border construction demand. Temporary because funding for the wall will be brought up every time the nation’s budget needs to be passed by Congress. But for now, thanks to the lobbying and organization by the Rio Grande Valley community, the Sierra Club, and Rachel’s Network, among others, the Refuge is safe from border wall construction. Unfortunately, the lands outside the Refuge’s borders were not afforded the same protection and some form of border wall or levee construction is planned for the Refuge’s neighbors. As a result, the Refuge will ultimately be affected as well.

But cities and counties are starting to take action thanks to a campaign launched by the Center of Biological Diversity. Their campaign encourages cities, states, and counties to pass “No Border Wall” resolutions. So far, thirty-two have been passed across the southern borderlands. [9] 

Looking into Sonora, Mexico from southern Arizona. Photo by J.Brun

Looking into Sonora, Mexico from southern Arizona. Photo by J.Brun

Earth Law for the Southern Borderlands

So how can Earth law help? First, what exactly is it?

Earth law is not a new concept, though it seems radical to western minds. Indigenous nations have always respected and lived the belief that we are interconnected with the air we breathe, the ground we stand upon, the animals and plants we co-exist with, and the water that sustains us all. What happens to one, happens to all. Dr. Gregory Cajete from New Mexico University calls it “natural democracy.” That is, in the relationships between humans, water, stars, land, animals, and plants we all have rights. [10]

And Earth law is about having those rights represented in a court of law. So, what if the Sonoran and Chihuahuan deserts, the Rio Grande and Colorado rivers, the monarch butterflies, and the ocelots of southern Texas and Arizona could have a say in a court of law about their destruction or preservation? What if they had a chance for their rights to be heard?

Earth or Wild law gives them that chance. Just as a city or corporation has standing in a court of law, so too, can a river, watershed, or mountain range. Such a right was recognized in Sierra Club v. Morton [11] in the dissenting opinion by Justice William O. Douglas. He wrote:

"Environmental issues should be tendered by the inanimate object itself. Then there will be assurances that all of the forms of life which it represents will stand before the court − the pileated woodpecker as well as the coyote and bear, the lemmings as well as the trout in the streams. Those inarticulate members of the ecological group cannot speak. But those people who have so frequented the place as to know its values and wonders will be able to speak for the entire ecological community…"

Those that breathe in the dust of the southern deserts or turn on a tap to drink from the Colorado or Rio Grande rivers, or have their crops pollinated by migratory butterflies, or look out their window to stare mesmerized at the zig-zag dance of a hummingbird have an opportunity to speak for this community − to defend this community that we all belong to. And this community, made up of so many rare and endangered species, is in peril.

Earth Law is an opportunity for a new version of the borderland voice to be heard in a court of law. A voice that speaks not as property but as an individual entity with rights. It is a version where a whole ecosystem or watershed (which may cross international boundaries) is represented by a human guardian(s). And there has been success.

The Paris Agreement signed by just about every country in the world recognizes the right of Earth to be protected from climate change by vowing to be a part of the solution to lower Earth’s temperature. Waterways in India, Colombia, and New Zealand have been granted legal status for possessing rights. Three dozen cities and towns across the U.S. have passed ordinances recognizing nature’s rights. For example, Earth Law Center worked with the city council of Santa Monica to pass an ordinance that recognizes “natural communities and ecosystems possess fundamental and inalienable rights to exist and flourish in the city of Santa Monica.” Bolivia, Ecuador and Mexico City have passed rights of nature laws. And since everything and everyone is connected, whatever rights Earth may be granted in a court of law, also benefits the human community. [12]

In the borderlands, what if the Department of Homeland Security had to argue against the Rio Grande’s right to exist, flow, survive, and supply life unto itself as well as to the animal and human communities in which it is intertwined? Could all those rights be waived by the Department of Homeland Security? Even more interesting, what if the Natural Resource Committees of Congress were successfully lobbied to write policy establishing the rights of nature in the borderlands? Or, what if local borderland communities passed ordinances protecting the rights of their environment? It has been done elsewhere, why not for the borderlands? 

How can we get involved?

The Earth Law Center is eager to collaborate with others on working toward the rights of the borderlands to “exist, thrive, and survive” into the future. If we can help in your efforts to protect the borderlands or if you are interested in more information on Earth law please contact us here.

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[1] Border Wall Issue Toolkit. #No Wall Coalition

[2] “Border Fences Pose Threats to Wildlife on U.S. – Mexico Border, Study Shows,” UT News, July 12, 2011.

[3] Trump Wall: IPaC Trust Resources Report. U.S. Fish & Wildlife Service, May 3, 2016.

[4] “Border wall plan would endanger New Mexico’s wildlife,” Bryan Bird. Albuquerque Journal, March 23, 2018.

[5] “Trump privately presses for military to pay for border wall,” Josh Dawsey and Mike DeBonis. The Washington Post, March 27, 2018.

[6] National Butterfly Center

[7] Center for Biological Diversity v. U.S. Department of Homeland Security, No.17-cv-1215-GPC (WVG)*1-6 (S.D. Cal February 27, 2018).

[8] “Lawsuit Challenges Trump Administration’s New Mexico Border Wall Waiver: Wildlife migration, air, water at risk to speed wall construction, Center for Biological Diversity, March 22, 2018.

[9] No Border Wall Resolution

[10] NPR interview with Dr. Gregory Cajete, March 22, 2018.

[11] Sierra Club v. Morton, 405 U.S.727,752 (1972).

[12] Legal Initiatives, Earth law Center.