By Howard Fischer
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PHOENIX - A federal magistrate, citing the government shutdown, is postponing action to determine whether the construction of new walls along the southern border by the Department of Homeland Security is illegal.

Magistrate Judge James Marner acknowledged concerns by environmental groups that delaying the lawsuit while allowing construction to continue "would cause irreversible harm'' both to the organizations that sued as well as several imperiled species that would be affected by the new barrier.

But Marner said he also has to respect the arguments from the Department of Justice, which is representing Homeland Security Secretary Kristi Noem, that its lawyers are legally prohibited from working while they are not being paid.

There are exceptions, the magistrate said, including "emergencies involving the safety or human life or the protection of property.'' Marner said, though, that the law is clear: absent those conditions, federal attorneys are prohibited from working, "even on a voluntary basis.''

"This court finds that under the current circumstances in this case, a stay is appropriate,'' he wrote.

What makes all this crucial is that work already has started on a 27-mile stretch through the grasslands of the San Rafael Valley. And conservation groups say the 30-foot steel bollards will interfere with the migration of jaguars and other animals.

The federal shutdown is unlikely to slow construction, which is being done not by federal workers but through a $393.5 million contract with Fisher Sand & Gravel Co., unaffected by the lack of a new federal budget.

That is significant as the lawsuit by the Arizona Center for Biological Diversity and CATalyst alleges the construction is illegal.

The plaintiffs want a court order to halt the project unless and until it complies with various environmental laws, something that becomes more difficult to do - and more difficult to undo - the more of the wall that is in place.

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