morning honors morning may please the court my name is no golden krasner i'm a deputy attorney general for the california attorney general's office and i'm here out today representing the people of the state of california on the california coastal commission i am also here arguing for the animal legal defense fund the center for biological diversity the sierra club and the defenders of wildlife i'd like to reserve five minutes for a bottle before going into the details of this case i'd like to remind your honour's what this case is about on january twenty fifth two thousand and seventeen the president issued executive order thirteen seven sixty seven directing the department of homeland security to build an imprint of impenetrable barrier across the entire southern border part the first part of building that barrier was the prototype projects and the new fence designs in san diego and calexico that are a part of this case in order to build those barriers the department of homeland security wanted to use section one zero two of  the legal immigration reform in immigrant responsibility act what i'll call section one or two the problem is that section one of two was never designed for that purpose the district court held and v h s argues that arising from any action undertaken or any decision made by the secretary of homeland security pursuant to paragraph one per one is the waiver authority by its terms therefore section one  two see is the jurisdictional bar is anything a rising from the weaver decision arising from the waiver decision does not include independent predicate questions talking about doing a petition for search on those or something so you know if i mean obviously we have to do statutory construction here as far as that goes and want to to see to see says that any just a court order any district order not just a final one it doesn't say any just a court order may be reviewed only upon petition for certain the supreme court of the united states right so you ask us to read it narrowly they ask us to read it broadly as it were but why doesn't the plain language to support the federal government's view when you consider the whole backdrop of everything i people can debate a lot in terms of and there is a lot of debate on this issue as we know and and the state of california has to see at the same as the federal government and a lot of the citizens don't all see it the same but that said i think possibly on some level the borders are a security issue people debate as to how much of the security issue or what the answer should be but that being said if they a security issue and we all know that with go to court that in fire mental claims can be tied up in courts for decades before anything can get done and so it looks like this what the point of this was ok where you have a security issue we don't want it tied up in court forever and we don't want to tie it up in the circuit courts where they have on bank review or whatever we want things to go to the district court on constitutional claims or whatever and whatever they go spare and then we want to go directly to supreme court and just get it done so it cannot be in a mire and so why isn't that really what's what almost always boiled down to i section one zero two b and if you look at all the three hundred seventy miles on the seven hundred miles i was talking about there when the secretary at the time was using there was no question that he or she had the power to build those barriers in the first instance and therefore the hold up at that time would have been asked to the waiver authority and that is why congress amended it to to not allow the those claims to be brought to this court but here we're talking about the predicate legal question of whether th us has the authority to build these barriers in the first instance and those were not an issue back when congress is intent was clear and the h s was clearly doing what congress intended them to do under section one of t mrs step there in terms of reference to paragraph one and it seems to me that the whole jurisdiction is predicated on what arises out of paragraph one which is a waiver so i want to walk you through the different claims and see if they may or may not be distinguished so number one you represent center for biological diversity as well as california today i'm arguing for them ye yes well do you do you know are you familiar with the time i'm not one hundred percent you know i know that the doc did for me because it's an important thing to see jurisdiction to determine the course of the filing of the complaint we have three consolidated complaints here we kind of complaint that was not had before there ever was a waiver and as i understand it there are a number of times when the department of homeland security has built various barriers where there was not a waiver is that true that's character so we can't assume there will always be a waiver i mean the waiver is if there is a waiver ok so i know as i understand your complaint it's that you don't even get to the waiver because in your view the statute doesn't even permit the project is that right that's correct your honor ok so if that's true and that you say it doesn't permit the project you call that a predicate legal issue correct yes and i'm hoping the question so let's say we agree with you on that point and we look at the predicate legal issue and we say well there's jurisdiction here but you lose because in fact this combination of one hundred one and one zero two does permit this project so then wouldn't we move from there if that were  foundational determination then of course ultimately there is a waiver in this project correct correct and wouldn't we then invoke the waiver provision at that point well that the waiver determination will be while that the district court's ruling on that waiver determination this court already made a ruling and that has to go to the united states supreme court so but if your honor is find that in fact that the building of these barriers was is allowed under section one hundred two that then yes the department of home security would be allowed to use the waiver unless the supreme court says otherwise ok so you're going to let me just if if we take the first part of your proposition that the authority to be old is not is really independent from the waiver so you got to know whether you can you know fire the gun in the first place to get the project moving if in fact the project is allowed and we determine that it's allowed under the that strict construction of these particular sections then where does that leave you that leaves us with bringing a search for petition if we in the song to who are in the supreme court of environmental issues right correct so in your view the predicate legal question only gets you somewhere if you win on that is that right at least it doesn't get you anywhere in this court you need to ask the supreme court correct or and i think it's important to realize that we're talking about two different grants of authority as we've discussed and one would be the authority to build on the second would be the authority be one of two b one and b one b are the other mileage requirements the seven hundred miles and the three hundred seventy miles one or two b one c is the consultation class one or the safety features in the authorization for appropriation and what's important in b two b three before is that congress states under pursuant to this subsection clearly talking about section one hundred two b and d h s s is claiming that its case basically boils down to that it has authority under section one or two anyway to build these projects contains the congressional details in the congressional your argument is that the language in carrying out subsection somehow is indicative of a restriction on the general grant of authority under so case and the bloke case in the supreme court those are cases i talked about how the general should not make the specific irrelevant and if one or two a day was this general grant of authority to be able to build whenever wherever and however in perpetuity then there would be no need for such and want to be well i want to be it's not rendered irrelevant if we if we read it in order to suggest congressional intent that one of the two a provides the broad grant of authority to build such barriers and one to be is an articulation of priorities that that one of two way would be support for us really if one ought to be is the be all and end all and so i read it is is saying ok you can construct all kinds of the attorney general can get easements and says that safety features can be done and it says it provides for appropriations but those are only under subsection one or two piece so if it was one or two a sole  so my question is doesn't want to go to a permit you to do various things in the maritime and the canadian border that are different than the specificity ordered on the with canada right well my question is if the secretary of homeland security decides to enhance or reinforce various borders in the north part of the country as opposed to  that is as it's linked to carrying out subsection a i want to be it's clear that congress was talking about the southwest border at the time that it and the act of this and in fact it's amended there from time to time to add sections now please the court thomas firing from the department of justice for the government this case really demonstrates that the plaintiffs claims are in the heartland of the purpose of congress is an accident of the jurisdictional bar and wanted to see that was adopted in two thousand and five following the earlier not made in one nine hundred ninety six of the statutory authority that's at issue here and in two thousand and five congress expressed its concern the ongoing litigation delays resulting congress therefore adopted a broad waiver in wanted to see and didn't limit it just to the waiver because that that limited waiver had previously been adopted but was in not deemed a fact of instead congress specifically  first position and what you believe is the correct interpretation is this should be dismissed because this court has no jurisdiction is that correct yesterday that's right all right and you in the district court is it also is it your position that this court has no jurisdiction over both the district court has jurisdiction over constitutional claims but not non constitutional claims exactly and constitutional claims have to go to the supreme court but it's also your position that non constitutional claims that the district court would not have had jurisdiction in the first  and i think that just a court found it didn't have jurisdiction but said anyway i'm going to double barrel it and i'm going to go to the analysis a set cracked so i think that's mostly right just tell him the district judge here concluded that the language of the jurisdiction l bar was not as clear as as we think it it was in therefore didn't preclude the alter of eras claims that the plaintiffs were also raising that the the secretary's action here exceeded the it doesn't make any difference at all because however you look at these statutory questions the this case really is as i said before about the heartland of what congress was getting at one of two general if so whether you look at it under the a p a standard under  review if there were any basis for that is obviously not under several on under the a p a underneath i'm against time and there really is no question that these that the actions at issue here are clearly within one of a grant of general authority and even if there were any question why why don't we have jurisdiction or the district court to look at that when i call the threshold or they call the predicate question and if you take that as a predicate question because hinge from a waiver i mean maybe maybe there is no authority to do this so let's say they they think it exceeded authority because of the way they interpret as we just talked with them about the one o t want and i mean one or two etc but if we say well we have jurisdiction to look at that because it's really a predicate question it's not doesn't really a rise from a waiver in paragraph one and then we determine that there is authority in the way we read these statutes together houser has said that well once that happens once you have the authority then you are in waiver land and there recourse for that recourse would be in the supreme court was served why isn't that a logical reading this that or why is that a logical one right because essentially the district courts of the united states shall have exclusive jurisdiction to have all causes or claims arising from any action that's undertaken pursuant to paragraph one ye so then we say ok well paragraph one congress intended for us to look at paragraph one and when you look at paragraph one that's the waiver provision yes so your argument answered the question in part but it doesn't talk about dictates the scope of that predicate legal question inquiry and we think that there are two questions posed by paragraph one the first is did the secretary invoke this section wanted to see one authority in both waivers she and then she did so and he did so in the over the end then the second question is whether the secretary had determined that it's necessary to ensure expeditio say not only did the secretary invoke the waiver under c one but did the secretary properly do so all right so now but that begs the question because whether there is a what what you have is you have a project and the question is already for us government enter into this project and if there is then congress with this combination of the two thousand and five and two thousand and eight jurisdictional waivers and jurisdictional statute says then you can waive any law related to those projects but that doesn't answer the question you need to get to the waiver in paragraph one for that to be the answer and so as judgement is suggesting here what we're talking about and that you predicate isn't correct term but is a foundational legal question do they have authority to have the project at all and if there was no authority to have the project and all the waivers kind of non icing on the cake it would i don't think so just like you'd say let me just see if i can back up for a moment and start from the sort of the first step which we think is important to look at the language of one eye to see to use jurisdictional bar is really broad and it's very specific and so we think that these are claims arising from actions taken because the claimed there is no authority to undertake a project at all is a claim that the the project  violates the or organic authority of the d h s s right but that is in self part and there needs to be a cause of action for that and the only cause of action available here is under the a p a but remember the a p a itself precludes actions that are precluded by statute and that's what this statute does so i understand your concern that let me give you a specific and that is that we have three consolidated cases here and minder standing is the biological center for biological diversity filed its shalen is to the environmental statues before there was ever any waiver ok and we do know from looking at public records and historical records that a number of these projects have proceeded without a waiver and there was just general litigation in the courts over a b c or d some of which were environmental claims on the other hand so that the secretary doesn't always it's not like a mandatory waiver it's if the secretary decides she wants to have a waiver correct so let's just take the center for biological diversity with jurisdiction being determined on the day of filing which is when we would determine jurisdiction at that point there was no waiver at all so just like you're right that the original compl july of twenty seventeen and right the first waiver was it was published in front of us from august second but the important thing to remember here is that the operative complaint the complaint that's currently operative is the second amended complaint and that was filed in september  doesn't that you know the jurisdiction relates back to the filing of the original claims of basic civil procedure i know they now have a new complaint because they don't like the waiver but i'm asking you you know look at jurisdiction based on possibly at that point but let's take if i can take a different tack to try to answer your question which is that if the plaintiffs were right even looking back at their original complaint if they were again if they were stuck but then the answer would be operative and then that precludes any inquiry as a matter of substance then the only avenue for plaintiffs remaining at that point is to argue that the waiver itself is somehow invalid and remember that it really is their co or that's what this case ultimately come out but there's you know there wasn't a waiver then and there isn't always a waiver so you're actually don't assume far in what happened here into the broad statute and so my question which i wanted to ask california about i'll ask you if it were determined that the district court had jurisdiction at the outset because of normal jurisdictional determinations of a rising under a federal statute and there is no waiver in effect at the time of filing but then there is a way were in effect at the time of appeal then my question is well maybe there was just action in the district court to proceed but now we're into what can be appealed from the district court order so then perhaps we shift jurisdictional bar does that make some sense i think it does just make you know and i think it's actually a good reminder that in two previous will different sound on appeal but i don't think the outcome would be any different to what i write in terms of the outcome could be the same and all of this right but i'm trying to follow the presumption that you don't strip jurisdiction and you read the statute for what the statute says so i if you go back to two thousand and five two thousand and eight restrictions were enacted under president bush correct though right and since then some cases have absolutely right this case is about two specific waivers the history you mentioned and also two things about it if i may first of all this case is not about a challenge to the executive order broadly as plaintiffs suggested in their opening it is about a challenge to three particular projects  which is completed so two remaining and two particular waivers going back to the history though the examples of some projects resulting in waivers in others not is an example of the the discretion needs breast discretion granted to the secretary in c one if you look at the legislative history and i commend the court to look at the congressional research service report most recently two thousand and nine which is included in our supplemental excerpts of record really goes through a lot of this and confirms the reading of the statute that we've emphasized if you look at that the house bill in two thousand and five regionally compelled the secretary to waive laws necessary to ensure expeditious construction that was amended and before was enacted in provided this expressed discretion so the importance of giving the secretary the express discretion to determine whether and when it's appropriate to waive any particular law is really again  that would mean that as a matter of statutory construction the government didn't have authority to proceed with this project because it didn't fall in a certain  i'm just that's the argument i'm struggling with the premise but i'll just proceed that's their argument why don't you be has this constricting force right so take that as a given and if that's the case and that's not a constitutional question you would end up with a situation hypothetically if they were right on this or some other project that there would be no review of that because it's not a constitutional question and it's not a wavery even a waiver question no matter how broadly you wait so that's why i'm having some struggle with the process of how you read section one because you could end up in that that would be a complete jurisdiction stripping which i don't think congress intended that i think what congress intended is is pretty clear here is that when you get to that in one of these changed from laws to all the requirement last all legal requirements and not just environmental laws so that would mean that this would never be reviewed whether you had the right to proceed with the project in the first place and i don't think there's anywhere in the legislative history that suggests that the courts are stripped completely of jurisdiction that non constitutional was sued your honor i think you're right that the legislative history doesn't get to that specific inquiry but the language of the statue again is extraordinarily broad and very clear but let me also just point out that what the proper remedy is the this is a question ultimately left to the political branches and that's why congress these for these most recent projects in f y seventeen specifically identified these projects with the category of these projects in the appropriation of funds and the plaintiffs have also raised prematurely as we point out a challenge to a project that has not yet been subject to a waiver something you've been undertaken in the reason for that is because that had not yet been the subject of an appropriated appropriation of funds that was only most recently done eighteen bill passed this spring spring of twenty twenty eighteen so congress and the executive are engaged in a meaningful ongoing dialogue about this question but we just had to i guess i need permission from the  just understand that if that's ok so i'm trying to appreciate if there is a carve out here that would not be reviewable and if it would be your position that there can be a part that's not revealed all and still withstand scrutiny and so i understood if the secretary were to adopt either project without waiving all constitutional requirements would plaintiffs be able to challenge identify a cause of action a statutory violation thirteen thirty one presumably would be their jurisdictional basis they'd have to demonstrate standing brightness all of the ordinary principles for bringing a legal action claim in court right and that is how we think it would proceed but if it's non constitutional under your interpretation could they ever bring that in federal court in can i just a to ask you has there been final agency action has there been an irrevocable commitment of resources all the ordinary questions one has to ask but but sure if if those questions can be answered in plaintiffs can demonstrate they have a claim that's the kind of claim that those statutes indicated that even though the center for biological diversity complaint was prior to prior to the invocation of the waiver once the waiver invoked by the secretary that sweeps in the allegations  complaint right in that particular complaint well i think judgment if i can try to clarify the way i think it should work in that circumstance and again here were a little bit different because there were amended complaint afterward but but let's just imagine there was a what was going to be my next a claim based on the endangered species act a variety of other states that are member exactly which ones were in play in the d c two thousand five case at that point after the claim is brought the secretary invokes the waiver authority issues a waiver provided it to the court upon upon seeing that the waiver had been issued they did its injunction and had briefing about whether to dismiss the case concluded that it left jurisdiction and did dismiss the case so that's an example of how we think that it should work authority the bill and one challenging the waiver authority and then i guess there would be no question about whether they were talking about stink issues here  two different different grants of authority that would not be swept under the waiver my second point relates to the want to a issue that we were talking about earlier and it's also our contention that if you look at one o construction within one year by december thirty first two thousand and eight and separately provides that the secretary has until the summer thirty first two thousand and eight to identify mileage to be finished quickly expeditiously and i believe that it's important to remember that there's a separate authority there's some authority that is granted that ends on december thirty first two thousand and eight according to the d h s s reading of the statute what would be different about january first two thousand and nine the secretary would still have power to name any project that it wants anywhere that it wants with on the southern border and waive loss so what is not authority that ends on january first two thousand and seven thirty first and it's our contention that on january first two thousand and nine the authority to identify mileage for expeditious construction is what is what ends there and that's what makes january first two thousand and nine different than the summer thirty first two thousand and eight so even though even if we assume that section one or two a provides authority to build the waiver authority as congress intended was meant for expeditious construction it was meant for construction that needed to be done within one year of the statutes enact meant and that authority that ends on december thirty first two thousand and eight means something and january first two thousand and nine is in fact different than the summer thirty first two thousand and eight thank you thank you the tastiest argued the center  biological diversity versus homeland security is submitted like to thank both council for your briefing and argument and with that we're joined for the morning