QuickTake:

Multiple emergency motions by government attorneys sought to halt an order for fence removal, as government attorneys said they will appeal the granting of a preliminary injunction requested by activists seeking to reopen the plaza.

This story has been updated with information about an emergency appeal seeking a stay of the fence removal order.

In a late-night response to an appeals court order that he “consider and clarify” alternatives, a federal judge kept a July 2 deadline for the government to remove temporary fencing at the Eugene Federal Building.

“The Court finds Defendant is fully capable of timely complying with its order to remove the perimeter fencing by July 2, 2026, 7:00AM,” U.S. District Judge Mustafa Kasubhai wrote. Kasubhai issued his order at 11:20 p.m. Tuesday, according to filings by government attorneys.

In response, government attorneys Wednesday morning filed another emergency motion to the 9th Circuit Court of Appeals asking for a halt to the judge’s order.

But the appellate court Wednesday afternoon declined to immediately issue an administrative stay, while also setting a hearing for next week to consider a stay pending an appeal of Kasubhai’s order.

“The court expresses no view on the merits, and this order shall not be construed to prevent the government from implementing other appropriate safety measures for the protection of personnel and property,” stated the order written by Senior Circuit Judge Sidney R. Thomas, Circuit Judge Holly A. Thomas and Senior Circuit Judge Carlos Bea.

Bea wrote separately that the government should have been granted a stay pending its appeal.

Removing the fence “invites further confrontation between the Government and the protesters and ignores the Government’s reasonable judgment about what measures are needed to protect federal property, personnel, and, indeed, the protesters themselves,” Bea wrote.

Bea was nominated in 2003 for a position on the appellate court by President George W. Bush.

Prior to the Wednesday afternoon response from the appellate court, court filings from the government said that should their request for a stay not be granted, the “government will remove the fence to ensure compliance” with a June 22 preliminary injunction order.

The 9th Circuit Court of Appeals deferred ruling on the request for a stay pending an appeal until after a July 8 online hearing.

Previously, Kasubhai cited the “long tradition and history” of the site’s courtyard as a place for protest when granting the preliminary injunction requested by activists. They said in a lawsuit that the April 30 installation of a fence, closing off most of the plaza, infringed upon their right to free speech and assembly.

Although he ordered removal of the fence, Kasubhai also authorized that some fencing could be put in place. He presented attorneys with a diagram in which he marked by hand a fence line stretching mostly alongside the interior wings of the main building.

Kasubhai’s late-night opinion and order issued Tuesday, June 30, came in response to a 9th Circuit Court of Appeals ruling, which stated: “This appeal is remanded for the district court to consider and clarify what alternative measures the Appellant is authorized to employ … the time line for such measures, and whether such alternative fencing can be constructed and accomplished without maintaining the perimeter fence.”

The 9th Circuit’s order, issued minutes before a temporary stay of the fence removal order was set to expire at 10 a.m. Tuesday, referred to a footnote in Kasubhai’s written opinion about where he authorized fencing to be placed.

During a nearly three-hour court hearing that ended at about 5:30 p.m. Tuesday, Assistant United States Attorney James Blum argued the 9th Circuit’s order called for consideration of whether the fence should remain in place, but Kasubhai disagreed.

Blum, near the end of the hearing, requested an administrative stay and a stay pending an appeal “if the decision is … to do anything short of keeping the fence up as it stands.” Government attorneys have repeatedly said in court documents they plan to appeal Kasubhai’s granting of the preliminary injunction.

In his written order late Tuesday, Kasubhai wrote: “The Court understands it was directed only to ‘consider and clarify’ the Court’s authorized alternative depicted in the aerial image that appears earlier in this opinion. That image depicts the only alternative described in footnote 5 of the Court’s Opinion and Order, and the only one Defendant was ‘authorized to employ.’”

The footnote stated, in part, that the “Court proposed a configuration that it suggested would be appropriate to protect the government interests while providing access to the Plaza,” and that “while Defendant is authorized to construct a fence in the manner the Court outlined at oral argument, Defendant was not ordered to do so.” 

The image includes Kasubhai’s markings done by hand to show where he authorized fence placement, which he had shared June 22 with attorneys for the federal General Services Administration and the Eugene-based Civil Liberties Defense Center, which is representing the activists who filed the lawsuit.

The 11-page order and opinion includes the image and refers to testimony from the site’s building manager, Ryan Anderson, provided during the Tuesday hearing.

Kasubhai cited Anderson, writing that the fence panels in place that now block off most of the plaza could be reused for fencing to be put in place at the authorized locations, though more panels would need to be acquired to provide a barrier near what attorneys called the site’s annex. 

Until recently, the annex housed a Veterans Health Administration office where clients received services, but the VHA now provides those services at a Chad Drive location. 

Kasubhai wrote that “the timeline associated with implementing the authorized alternative in full (including protecting the annex) is 30-34 days, which this Court finds an unreasonable delay in light of the First Amendment freedoms at stake.”

The General Services Administration said in court documents the fencing was installed to “protect the property, federal employees, and public visitors visiting the property for government services” after property damage during a protest.

Eugene police declared a riot at the site Jan. 30.

The fence also serves to protect the property during “ongoing security renovations,” according to the GSA. 

During a two-day evidentiary hearing that concluded June 22, Anderson, the building manager, said there was no timeline for changes such as “hardened glazing” planned for windows near the interior courtyard lobby entrance.

But during Tuesday’s hearing, Anderson said he since learned the project, which also involves replacing exterior doors, is scheduled to be completed Dec. 22, 2026. Anderson testified that a rough estimate of the cost for “the hardening project” is about $1 million.

Blum previously said in court the government spent about $270,000 on the fencing project.

The current fence placement leaves a corner section of the downtown plaza open to the public and is often used by speakers during demonstrations. But the six activists who filed the lawsuit said the size of that area does not accommodate large gatherings, and that people with mobility issues can no longer access benches or places to sit because they are blocked.

Kasubhai, in his written order granting the preliminary injunction, also cited safety concerns for people protesting on the site’s sidewalk near vehicle traffic.