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By Alan Torres
Eugene Register-Guard
USA TODAY Network via Reuters Connect

The federal government still has to remove the fence around the Eugene Federal Building by 7 a.m. July 2, U.S. District Court Judge Mustafa Kasubhai wrote in a new opinion released late June 30. The government appealed that order the morning of July 1.

The General Services Administration appealed the U.S. District Court’s original order to remove the fence by Kasubhai’s deadline, and the U.S. Circuit Court of Appeals issued a one-page remand telling the District Court to “consider and clarify what alternative measures the Appellant is authorized to employ” and “the time line for such measures.”

In the afternoon on June 30, both sides further argued Kasubhai’s order after the remand from the higher court.

For most of the 3-hour hearing, the federal government argued Kasubhai’s July 2 deadline and proposal for what an alternate fence would look like are impractical and told him he should reconsider. In his formal opinion, Kasubhai disagreed.

Government prepares to remove fence

During the hearing, Ryan Anderson, the federal employee who manages the Eugene Federal Building, told Kasubhai the agency had taken steps to prepare to remove the fence: The GSA obtained a permit from the City of Eugene to close traffic again, staged a restroom for the crew who would remove the fence and staged a forklift to move the concrete blocks holding the fence in place.

But challenges remain, Anderson said. He said the fence was designed with the contours of the federal grounds in mind and the GSA may not simply be able move the existing fence up against the windows of the federal building as Kasubhai suggested.

Anderson said the agency may need to order new pieces to move the fence. He also said he wanted to leave space to put the concrete blocks on the inside of the fence, otherwise protestors could climb the blocks.

Anderson also argued the fence is justified because the federal property is about to become a construction zone. He said he now had a timeline for replacing and hardening the windows and doors of the federal building, which is scheduled to start July 15 and end Dec. 22.

Kasubhai orders plaza reopened by deadline

In his new opinion, Kasubhai explained his reasoning for keeping the 7 a.m. July 2 deadline.

Kasubhai reiterated his view a fence like he proposed, one that blocks the windows and doors of the federal building but not the plaza, would be allowed.

He wrote anything short of that, such as moving the fence far enough back to open up the benches but not the rest of the plaza, as the government proposed, would continue to violate the First Amendment and is not authorized under his order.

Kasubhai wrote that at the June 22 hearing, the General Services Administration “failed to provide any meaningful details about timing and process for moving the existing perimeter” nor did the GSA “express any serious interest in undertaking the authorized alternative.”

He also said he believed the fence could be removed on the timeline he ordered, noting among other factors, the GSA has obtained a contract for workers who are staged in the Eugene area to disassemble the fence, and the City of Eugene permit authorizing night work at the federal building from June 29 to July 1.

He also refuted the government’s position that removing the fence would pose a security risk.

Kasubhai noted the federal building “annex” (the smaller building on the Pearl Street side) is vacant, placing blocks on the outside of the fence shouldn’t be a problem because anyone who did use them to scale the fence would be trapped inside and easily arrested, and that for decades the federal building has remained open to protests without major harm to the building or its employees.

He noted that while the GSA plans to harden the glass on the first floor, there are no plans to do so on the higher floors, discrediting the government’s argument that a closer fence would pose a security risk because protesters could throw rocks at the second story.

Kasubhai retained the deadline to remove the fence, meaning work would have to start the evening of July 1 to comply. A check-in hearing to confirm the fence has been removed is scheduled for 9 a.m. July 2.

On the morning of July 1, James Blum, attorney for the GSA filed a new appeal and request to delay Kasubhai’s deadline until the 9th Circuit Court of Appeals hears the case.

Blum wrote that removing the fence would “irreparably injure” the GSA by creating a security risk that could damage the federal building. He requested an order from the higher court by 5 p.m. July 1, and said the GSA would remove the fence if he doesn’t get that order.