Lawsuit in deaths of aliens lingers

A lawsuit many called frivolous because it sought more than $41 million from the U.S. government for the relatives of 11 Mexican nationals who died trying to cross illegally into the United States has proven to have more staying power than predicted.

A federal court in Tucson has given the relatives another two months to prove accusations that their family members died in the treacherous southern Arizona desert in May 2001 because the Interior Department failed to approve the installation of water stations “in the exact area” of the desert where the Mexicans were found dead.

Yuma lawyer A. James Clark, who represents the family members, told The Washington Times the court has ordered further discovery to determine whether the department’s denial of permits for the water stations had been subject to a compatibility study and if a failure to order such a study resulted in the deaths.

Mr. Clark has until July 9 to offer new evidence regarding the impact of such a study, with the government having to respond by Aug. 6.

Filed in U.S. District Court in Tucson, the suit said the illegal aliens died in the Interior Department-managed Cabeza Prieta National Wildlife Refuge north of Yuma after department officials denied a request by Humane Borders, a Tucson-based social-welfare organization, to place water stations in the area. The suit seeks $3.75 million for each of the victims.

Humane Borders had requested access to the Cabeza Prieta to erect the stations two months before the deaths.

In November, the Washington Legal Foundation urged the court not to permit suits that could undermine the country’s border security.

The public interest law firm argued in a brief that although more than 100 aliens die in the Arizona desert each year attempting to cross the border illegally, making such crossings easier by establishing water stations would serve only to encourage more illegal immigration.

The legal foundation called for the lawsuit’s dismissal, saying the Federal Tort Claims Act did not grant the courts jurisdiction over tort claims based on “discretionary functions” of the federal government — including any decision on whether to install water stations.

“If the plaintiffs were to recover damages in this suit, the federal government would from a practical standpoint be required to install water stations,” Richard Samp, the foundation’s general counsel, said in the brief. “Because the vast desert wilderness is too large to patrol closely, only the harsh desert conditions serve to deter aliens from attempting the trek.”

The foundation said the lawsuit threatened to undermine the government’s ability to secure its southern border, adding that based on the possibility that terrorists might use the Arizona border to move weapons and personnel into the country, it was “vitally important that the courts not second-guess executive branch decisions regarding the proper level of border security.”

The aliens died of dehydration after a five-day hike across the desert, where daytime temperatures had soared to 115 degrees. They were among 26 Mexican nationals, mostly from Veracruz, attempting to cross the 70 miles of desert from the Mexican border to Interstate 8.

The Border Patrol found the bodies on May 23, 2001, in an area of the Cabeza Prieta known as “the Devil’s Path.”

The lawsuit, which named the Interior Department and the U.S. Fish and Wildlife Service, said one of the proposed water stations would have been established in the same area where the aliens died. It said the department was negligent in refusing to permit the installations, “given that Interior employees were well aware that many illegal aliens were dying from lack of water while attempting to cross the refuge.”

The aliens would not have died, the lawsuit said, had Humane Borders been permitted to install its 60-gallon water barrels at several locations in the refuge.

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