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In a new report, Magistrate James Marner said there is no legal basis for arguments by two environmental groups that Congress acted illegally in 2005 when it gave the head of the U.S. Department of Homeland Security authority to waive a host of environmental laws in order to construct border walls.

His report is not the last word, however. Instead, it is a recommendation to U.S. District Court Judge Angela Martinez, who had asked the magistrate to prepare the report. 

The two groups that sued, the Center for Biological Diversity and CATalyst, will argue to the judge that she should reject Marner's report, said their attorney, Tala DiBenedetto.

To do that, however, they will have to convince the judge to ignore similar rulings by other federal judges about the scope of the law they are challenging.

Time is not on the side of the challengers. Construction of the wall has continued, in the grasslands of the San Rafael Valley south of Tucson, while the case has been in court.

Central to the case is the 1996 Immigration Reform and Immigrant Responsibility Act, which authorizes Homeland Security to construct barriers and roads along the border.

In 2005, Congress amended the law to give the department's secretary the power to waive all laws.

Using that authority, current Homeland Security Secretary Kristi Noem approved construction of a 27-mile stretch through the San Rafael Valley without going through otherwise required environmental reviews. The construction includes installing 30-foot steel bollards that challengers say will interfere with the migration of jaguars and other animals.

The challengers filed suit earlier this year, contending Congress lacked the authority to give Noem such broad and unrestricted powers.

The problem with that, Marner reported, is that federal courts elsewhere have rejected similar arguments.

For example, he cited one case where a judge said there are sufficient restrictions in Noem's power, with the judge there noting the law does spell out that fencing must be only "in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States.''

"Congress clearly delineated the general policy of (the law) as deterrence of illegal crossings through construction of additional physical barriers to improve U.S. border protection,'' Marner wrote, citing another federal court case that upheld Noem's powers. "In so finding, the district court recognized that previous courts have identified the general policy of (the law) as 'border protection' and have 'identified deterrence of illegal crossings as a motivating factor in this policy.' ''

Nor was Marner convinced by arguments about the sheer number of laws Noem is empowered to waive.

"There is no legal authority or principled basis upon which a court may strike down an otherwise permissible delegation simply because of its scope,'' he said.

Challengers had no better luck with arguments that Congress, in expanding the law in 2005, acted improperly by failing to impose a requirement that the Homeland Security secretary "seek expert guidance and input'' before issuing a decision to waive certain requirements. They also said that before the secretary can nullify laws that impede border construction, she needed to have knowledge of the operation of the laws outside of her expertise and jurisdiction.

"No such knowledge on the secretary's part is required,'' Marner said.

DiBenedetto acknowledged that the report, and its reliance on prior court rulings, leaves her with one course of action: Try to convince Martinez to reject Marner's conclusions and look at what the U.S. Constitution requires.

Her legal argument is that the law "which delegates the authority to the Secretary of Homeland Security to waive any and all laws and regulations under the sun for border wall construction is an unconstitutional delegation of authority to an unelected official," she said.

"The previous cases did engage with the constitutional issues,'' DiBenedetto acknowledged. That means she needs to convince Martinez that the other judges were wrong.

No date has been set for DiBenedetto to make her arguments to Martinez.

Russ McSpadden, southwest conservation advocate for the Center for Biological Diversity, said the wall already under construction between the Patagonia and Huachuca mountains has significant biological implications.

"This is truly one of the best jaguar movement corridors we have remaining in the United States,'' McSpadden said, saying three jaguars have used this corridor — and gone through where the wall is to be located — since 2015.

"Pronghorn also roam in this valley,'' McSpadden said. "Few people know this, but porcupines live in this valley, bears cross here, mountain lions, coatimundi, javelina, you name it, this is one of the most spectacular wildlife corridors left.''