Case: 3:17-cv-1215 As of: 02/28/2020 09:04 AM PST 1 of 9
CLOSED,LEAD
U.S. District Court Southern District of California (San Diego) CIVIL DOCKET FOR CASE #: 3:17−cv−01215−GPC−WVG

Center for Biological Diversity v. U.S. Department of Homeland Date Filed: 06/15/2017

Security et al

Date Terminated: 03/26/2018

Assigned to: Judge Gonzalo P. Curiel

Jury Demand: None

Referred to: Magistrate Judge William V. Gallo

Nature of Suit: 895 Freedom of

Related Cases: 3:17−cv−01873−GPC−WVG

Information Act

3:17−cv−01911−GPC−WVG

Jurisdiction: U.S. Government Defendant

Case in other court: USCA, 18−55474

Cause: 05:0552fi Freedom of Information Act

In Re

Border Infrastructure Environmental Litigation

Plaintiff Center for Biological Diversity

represented by Anchun Jean Su Center for Biological Diversity 1212 Broadway Suite 800 Oakland, CA 94612 510−844−7100 Fax: 510−844−7150 Email: jsu@biologicaldiversity.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brendan R Cummings Center for Biological Diversity 1212 Broadway Suite 800 Oakland, CA 94612 510−844−7141 Fax: 510−844−7150 Email: bcummings@biologicaldiversity.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian P. Segee Center for Biological Diversity 660 South Figueroa Street Suite 1000 Los Angeles, CA 90017 805−750−8852 Email: bsegee@biologicaldiversity.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Peter Rose Center for Biological Diversity 660 South Figueroa Street Suite 1000 Los Angeles, CA 90017 213−785−5400 Fax: 213−785−5748 Email: jrose@biologicaldiversity.org ATTORNEY TO BE NOTICED

Plaintiff

Case: 3:17-cv-1215 As of: 02/28/2020 09:04 AM PST 2 of 9

Defenders of Wildlife a nonprofit conservation organization

represented by Brett Michael Paben Defenders of Wildlife 535 16th Street Suite 310 Denver, CO 80202−4279 720−943−0457 Fax: 202−682−1331 Email: bpaben@defenders.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Gloria D. Smith Sierra Club 2101 Webster Street Suite 1300 Oakland, CA 94612 415−977−5532 Email: gloria.smith@sierraclub.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Sierra Club a nonprofit public benefit corporation

represented by Brett Michael Paben (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gloria D. Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
People of the State of California, The by and through Xavier Becerra, Attorney General

represented by Michael P Cayaban Office of the Attorney General 600 West Broadway Suite 1800 San Diego, CA 92101 (619) 738−9313 Fax: (619)645−2012 Email: Mike.Cayaban@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff California Coastal Commission, The

represented by Michael P Cayaban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Animal Legal Defense Fund

represented by Brett Michael Paben (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant U.S. Department of Homeland Security

represented by

Case: 3:17-cv-1215 As of: 02/28/2020 09:04 AM PST 3 of 9

U S Attorney CV U S Attorneys Office Southern District of California Civil Division 880 Front Street Suite 6253 San Diego, CA 92101 (619)557−5662 Fax: (619)557−7122 Email: Efile.dkt.civ@usdoj.gov TERMINATED: 07/14/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Galen N. Thorp U.S. Department of Justice Civil Division Federal Programs Branch 950 Pennsylvania Avenue NW Washington, DC 20530 202−514−4781 Email: galen.thorp@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katherine L. Parker Office of the U.S. Attorney 880 Front Street Room 6293 San Diego, CA 92101−8893 (619) 546−7634 Fax: (619) 546−7751 Email: katherine.parker@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant U.S. Customs and Border Protections

represented by U S Attorney CV (See above for address) TERMINATED: 07/14/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Galen N. Thorp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katherine L. Parker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Elaine Duke in her official capacity as Acting Secretary, U.S. Department of Homeland Security

represented by U S Attorney CV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Galen N. Thorp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:17-cv-1215 As of: 02/28/2020 09:04 AM PST 4 of 9

Defendant United States of America
Defendant Acting Commissioner Kevin K. McAleenan in his Official Capacity
Amicus Members of the Congressional Hispanic Caucus

represented by Galen N. Thorp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Galen N. Thorp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Deborah Ann Sivas Mills Legal Clinic at Stanford Law School 559 Nathan Abbott Way Stanford, CA 94305 650−724−1900 Fax: 650−723−4426 Email: dsivas@stanford.edu ATTORNEY TO BE NOTICED

Date Filed 06/15/2017
06/15/2017 06/15/2017
07/07/2017 07/07/2017 07/07/2017 07/10/2017 07/10/2017 07/10/2017 07/14/2017

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0974−10165698.), filed by Center for Biological Diversity. (Attachments: # 1 Civil Cover Sheet)
The new case number is 3:17−cv−1215−GPC−WVG. Judge Gonzalo P. Curiel and Magistrate Judge William V. Gallo are assigned to the case. (Su, Anchun Jean)(mpl) (jao). (Entered: 06/15/2017)
2 NOTICE of Party With Financial Interest by Center for Biological Diversity re 1 Complaint. No Parties With Financial Interest. (mpl) (jao). (Entered: 06/15/2017)
3 Summons Issued. Counsel receiving this notice electronically should print this summons and serve it in accordance with Rule 4, Fed.R.Civ.P and LR 4.1. (mpl) (jao). (Entered: 06/15/2017)
4 NOTICE of Appearance by Brian P. Segee on behalf of Center for Biological Diversity (Segee, Brian)Attorney Brian P. Segee added to party Center for Biological Diversity(pty:pla) QC email, missing certificate of service (dlg). (Entered: 07/07/2017)
5 NOTICE of Appearance by John Peter Rose on behalf of Center for Biological Diversity (Rose, John)Attorney John Peter Rose added to party Center for Biological Diversity(pty:pla) QC email, missing certificate of service (dlg). (Entered: 07/07/2017)
6 FIRST AMENDED COMPLAINT (First) against All Defendants, filed by Center for Biological Diversity. (Segee, Brian) (dlg). (Entered: 07/07/2017)
7 CERTIFICATE OF SERVICE by Center for Biological Diversity re 4 Notice of Appearance (Segee, Brian) (dlg). (Entered: 07/10/2017)
8 CERTIFICATE OF SERVICE by Center for Biological Diversity re 5 Notice of Appearance (Rose, John) (dlg). (Entered: 07/10/2017)
9 SUMMONS Returned Executed by Center for Biological Diversity. All Defendants served. (Su, Anchun Jean) (dlg). (Entered: 07/10/2017)
10 Ex Parte MOTION for Extension of Time to File Response to First Amended Complaint (Unopposed) by U.S. Customs and Border Protections, U.S. Department of Homeland Security. (Attachments: # 1 Proof of Service)(Parker, Katherine)Attorney Katherine Lind Parker added to party U.S. Customs and Border Protections(pty:dft),

Case: 3:17-cv-1215 As of: 02/28/2020 09:04 AM PST 5 of 9

07/17/2017 08/22/2017 08/23/2017
08/24/2017
09/06/2017 09/06/2017 09/07/2017 10/06/2017 10/19/2017
10/20/2017
10/20/2017 10/24/2017 11/20/2017

Attorney Katherine Lind Parker added to party U.S. Department of Homeland Security(pty:dft) (dlg). (Entered: 07/14/2017)
11 ORDER Granting 10 Defendants Ex Parte Application for Extension of Time to File Responses to the First Amended Complaint. Defendants shall have until September 5, 2017, to file their responses to the First Amended Complaint. Signed by Judge Gonzalo P. Curiel on 7/17/17. (dlg) (Entered: 07/17/2017)
12 Joint MOTION for Order Regarding Further Proceedings by Center for Biological Diversity. (Segee, Brian) (dlg). (Entered: 08/22/2017)
13 NOTICE of Appearance by Galen N. Thorp on behalf of U.S. Customs and Border Protections, U.S. Department of Homeland Security (Thorp, Galen)Attorney Galen N. Thorp added to party U.S. Customs and Border Protections(pty:dft), Attorney Galen N. Thorp added to party U.S. Department of Homeland Security(pty:dft) (Entered: 08/23/2017)
14 ORDER Granting Joint 12 Motion for Order Regarding Further Proceedings. Plaintiff shall file any amended pleading by September 6, 2017. Defendants shall file their motion to dismiss Plaintiff's amended pleading. Plaintiff shall file an opposition to Defendants' motion to dismiss by November 3, 2017. Defendants shall file a reply in support of their motion to dismiss by November 17, 2017. The Court sets a hearing on Defendants' motion to dismiss on December 15, 2017 at 1:30 p.m. in Courtroom 2D. Signed by Judge Gonzalo P. Curiel on 8/24/17. (dlg) (Entered: 08/24/2017)
15 NOTICE of Appearance by Brendan R Cummings on behalf of Center for Biological Diversity (Cummings, Brendan)Attorney Brendan R Cummings added to party Center for Biological Diversity(pty:pla) (dlg). (Entered: 09/06/2017)
16 Second AMENDED COMPLAINT (Second) against All Defendants, filed by Center for Biological Diversity.New Summons Requested. (Segee, Brian)SUMMONS REQUESTED Modified on 9/6/2017 (dlg). (dlg). (Entered: 09/06/2017)
17 Summons Issued re Second Amended Complaint. Counsel receiving this notice electronically should print this summons and serve it in accordance with Rule 4, Fed.R.Civ.P and LR 4.1. (dlg) (Entered: 09/07/2017)
18 MOTION to Dismiss by Elaine Duke, U.S. Customs and Border Protections, U.S. Department of Homeland Security. (Attachments: # 1 Memo of Points and Authorities, # 2 Exhibit, # 3 Proof of Service)(Thorp, Galen)Attorney Galen N. Thorp added to party Elaine Duke(pty:dft) (dlg). (Entered: 10/06/2017)
19 *** WITHDRAWN PER ECF 20 *** Joint MOTION to Consolidate Cases , Joint MOTION for Order Regarding Further Proceedings by Elaine Duke, U.S. Customs and Border Protections, U.S. Department of Homeland Security. (Thorp, Galen) QC email, documents are not signed. Attorney should withdraw and refile (dlg). Modified on 10/23/2017 (dlg). (Entered: 10/19/2017)
20 NOTICE OF WITHDRAWAL OF DOCUMENT by Elaine Duke, U.S. Department of Homeland Security, U.S. Customs and Border Protections re 19 Joint MOTION to Consolidate Cases Joint MOTION for Order Regarding Further Proceedings filed by U.S. Department of Homeland Security, Elaine Duke, U.S. Customs and Border Protections . (Thorp, Galen) (dlg). (Entered: 10/20/2017)
21 Joint MOTION to Consolidate Cases , Joint MOTION for Order Regarding Further Proceedings by Elaine Duke, U.S. Customs and Border Protections, U.S. Department of Homeland Security. (Thorp, Galen) (dlg). (Entered: 10/20/2017)
22 CONSOLIDATION ORDER (re ecf 21 ). Cases Consolidated. All future docketing will be done in the lead case. A hearing on the cross−motion for summary judgment shall be held on February 9, 2018 at 1:30 p.m. in Courtroom 2D. Signed by Judge Gonzalo P. Curiel on 10/24/17.(dlg) (Entered: 10/24/2017)
23 *** WITHDRAWN PER ECF 25 *** AMENDED COMPLAINT against Acting Commissioner Kevin K. McAleenan, Elaine Duke, U.S. Customs and Border Protections, U.S. Department of Homeland Security, United States of America, filed by Sierra Club, Defenders of Wildlife, Animal Legal Defense Fund. (Smith, Gloria) QC email, document is not signed. Attorney should withdraw and refile with a proper

Case: 3:17-cv-1215 As of: 02/28/2020 09:04 AM PST 6 of 9

11/21/2017 11/21/2017 11/21/2017 11/22/2017 11/22/2017
11/22/2017 11/22/2017 11/22/2017 11/27/2017 12/12/2017 12/14/2017 12/20/2017
01/05/2018

signature (dlg). Modified on 11/22/2017 (dlg). (Entered: 11/20/2017)
24 NOTICE OF STATEMENT OF UNDISPUTED MATERIAL FACTS by Elaine Duke, U.S. Customs and Border Protections, U.S. Department of Homeland Security re 18 MOTION to Dismiss (Thorp, Galen) qc email re missing certificate of service (dlg). (Entered: 11/21/2017)
25 NOTICE OF WITHDRAWAL OF DOCUMENT by Animal Legal Defense Fund, Defenders of Wildlife, Sierra Club re 23 Amended Complaint, filed by Animal Legal Defense Fund, Defenders of Wildlife, Sierra Club . (Smith, Gloria) (dlg). (Entered: 11/21/2017)
26 First AMENDED COMPLAINT against Acting Commissioner Kevin K. McAleenan, Elaine Duke, U.S. Customs and Border Protections, U.S. Department of Homeland Security, United States of America, filed by Sierra Club, Animal Legal Defense Fund, Defenders of Wildlife. (Smith, Gloria) (dlg). (Entered: 11/21/2017)
27 CERTIFICATE OF SERVICE by Elaine Duke, U.S. Customs and Border Protections, U.S. Department of Homeland Security re 24 Notice (Other), (Thorp, Galen)(mpl). (Entered: 11/22/2017)
28 Cross MOTION for Summary Judgment by Center for Biological Diversity. (Attachments: # 1 Memo of Points and Authorities in support of cross motion for summary judgment and in opposition to defendants' motion for summary judgment, # 2 Statement of Facts, # 3 Declaration of Jill Marie Holslin, # 4 Declaration of Christoper D. Nagano, # 5 Declaration of Peter Galvin)(Segee, Brian) (mpl). (Entered: 11/22/2017)
29 MOTION for Summary Judgment by Animal Legal Defense Fund, Defenders of Wildlife, Sierra Club. (Attachments: # 1 Memo of Points and Authorities, # 2 Statement of Facts, # 3 Exhibit)(Paben, Brett)Attorney Brett Michael Paben added to party Animal Legal Defense Fund(pty:pla), Attorney Brett Michael Paben added to party Sierra Club(pty:pla) (mpl). (Entered: 11/22/2017)
30 MOTION for Summary Judgment by California Coastal Commission, The, People of the State of California, The. (Attachments: # 1 Statement of Facts, # 2 Memo of Points and Authorities, # 3 Declaration of Michael Cayaban, # 4 Exhibit 1−5, # 5 Exhibit 6−9, # 6 Exhibit 10−26, # 7 Declaration Kevin Clark, # 8 Declaration S. Vanderplank, # 9 Declaration Mark Delaplaine)(Cayaban, Michael) (mpl). (Entered: 11/22/2017)
31 NOTICE by Animal Legal Defense Fund, Defenders of Wildlife, Sierra Club re 29 MOTION for Summary Judgment (Paben, Brett) (mpl). (Entered: 11/22/2017)
32 Amended DECLARATION re 30 MOTION for Summary Judgment Am. Decl. of Michael Cayaban to include Table of Contents missing page by Plaintiffs California Coastal Commission, The, People of the State of California, The. (Cayaban, Michael) (dlg). (Entered: 11/27/2017)
33 AMENDED DOCUMENT by Animal Legal Defense Fund, Defenders of Wildlife, Sierra Club. Amendment to 29 MOTION for Summary Judgment # 2 Statement of Facts. (Attachments: # 1 Declaration Timothy R. Ryan, # 2 Declaration Robert Knaier, # 3 Declaration Jill Marie Holslin)(Paben, Brett) (dlg). (Entered: 12/12/2017)
34 SUMMONS Returned Executed by Center for Biological Diversity. Elaine Duke served. (Segee, Brian) (dlg). (Entered: 12/14/2017)
35 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motions for Summary Judgment by Acting Commissioner Kevin K. McAleenan, Elaine Duke, U.S. Customs and Border Protections, U.S. Department of Homeland Security, United States of America. (Attachments: # 1 Memo of Points and Authorities, # 2 Statement of Facts, # 3 Statement of Facts (Response to Plaintiffs' Statements), # 4 Exhibit 20, # 5 Exhibit 21, # 6 Exhibit 22, # 7 Proof of Service)(Thorp, Galen) (dlg). Modified on 1/12/2018 to send QC email for attorney to submit courtesy copies (dlg). (Entered: 12/20/2017)
36 REPLY to Response to Motion re 28 Cross MOTION for Summary Judgment filed by Center for Biological Diversity. (Segee, Brian) (dlg). Modified on 1/17/2018 to send qc email for attorney to submit courtesy copies (dlg). (Entered: 01/05/2018)

Case: 3:17-cv-1215 As of: 02/28/2020 09:04 AM PST 7 of 9

01/05/2018
01/05/2018 01/05/2018 01/16/2018 01/18/2018 01/23/2018 02/07/2018 02/09/2018
02/12/2018

37 MOTION for Leave to File NOTICE OF MOTION AND MOTION BY MEMBERS OF THE CONGRESSIONAL HISPANIC CAUCUS FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT by Members of the Congressional Hispanic Caucus. (Attachments: # 1 Memo of Points and Authorities MEMORANDUM OF POINTS AND AUTHORITIES BY MEMBERS OF THE CONGRESSIONAL HISPANIC CAUCUS IN SUPPORT OF PLAINTIFFS MOTIONS FOR SUMMARY JUDGMENT, # 2 [PROPOSED] ORDER GRANTING LEAVE TO FILE AMICUS CURIAE BRIEF BY MEMBERS OF THE CONGRESSIONAL HISPANIC CAUCUS)(Sivas, Deborah)Attorney Deborah Ann Sivas added to party Members of the Congressional Hispanic Caucus(pty:am) (dlg). (Entered: 01/05/2018)
38 RESPONSE in Opposition re 35 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motions for Summary Judgment − Coalition Plaintiffs Combined Memorandum in Opposition to Defendants Cross−Motion for Summary Judgment and Reply to Defendants Motion for Summary Judgment filed by Sierra Club. (Attachments: # 1 Statement of Facts Response to Defendants Statement of Undisputed Material Facts)(Smith, Gloria) (dlg). Modified on 1/17/2018 to send qc email for attorney to submit courtesy copies(dlg). (Entered: 01/05/2018)
39 REPLY to Response to Motion re 35 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motions for Summary Judgment, 30 MOTION for Summary Judgment filed by California Coastal Commission, The. (Attachments: # 1 Supplement California's Response to Defendants' Statement of Undisputed Facts and Supplemental Statement of Facts in Opposition to Defendant's Cross−Motion for Summary Judgment)(Cayaban, Michael) (dlg). (Entered: 01/05/2018)
40 MOTION for Extension of Time to File Response/Reply (with consent of all plaintiffs) by Elaine Duke, U.S. Customs and Border Protections, U.S. Department of Homeland Security, United States of America. (Thorp, Galen) Modified on 1/17/2018 to send qc email for attorney to submit proposed order (dlg). (Entered: 01/16/2018)
41 ORDER Granting Defendants' Unopposed 40 Motion for Extension of Time. Defendants' reply brief in support of their motion for summary judgment shall be due on or before January 23, 2018. Signed by Judge Gonzalo P. Curiel on 1/18/18. (dlg) (Entered: 01/18/2018)
42 REPLY to Response to Motion re 35 Cross MOTION for Summary Judgment and Opposition to Plaintiffs' Motions for Summary Judgment filed by Acting Commissioner Kevin K. McAleenan, Elaine Duke, U.S. Customs and Border Protections, U.S. Department of Homeland Security, United States of America. (Attachments: # 1 Statement of Facts (Revised Resp. to Cal. Stmt.), # 2 Exhibit 23, # 3 Exhibit 24, # 4 Exhibit 25, # 5 Exhibit 26, # 6 Exhibit 27, # 7 Proof of Service)(Thorp, Galen) (dlg). (Entered: 01/23/2018)
43 ORDER Granting 37 Motion for Leave to File Amicus Curiae Brief by Members of the Congressional Hispanic Caucus. Signed by Judge Gonzalo P. Curiel on 2/7/18. (dlg) (Entered: 02/07/2018)
44 Minute Order. for proceedings held before Judge Gonzalo P. Curiel: Motion Hearing held on 2/9/2018. re 18 Motion to Dismiss − Submitted; 28 Motion for Summary Judgment − Submitted; 29 Motion for Summary Judgment − submitted; 30 Motion for Summary Judgment − Submitted; 35 Motion for Summary Judgment − Submitted; Court directs parties to brief the issue re consultation and briefs due by Close of Business on 2/13/18. Then Court to issue written Order. (Court Reporter/ECR Chari Bowery). (Plaintiff Attorney Michael Cayaban; Noah Golden Frasner; Brian Segee, Brendan Cummings and Sarah Hanneken (Animal Legal Defense Fund)).(Defendant Attorney Galen Thorp. (Michael Felts (CBP) and William Bresnick (DHS)). (no document attached) (ksr) (Entered: 02/09/2018)
45 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Motion Hearing) held on 2/9/2018, before Judge Gonzalo P. Curiel. Court Reporter/Transcriber: Chari L. Bowery. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The

Case: 3:17-cv-1215 As of: 02/28/2020 09:04 AM PST 8 of 9

02/13/2018 02/13/2018 02/13/2018 02/13/2018
02/27/2018
03/21/2018
03/23/2018 03/26/2018 03/26/2018 04/09/2018
04/11/2018 04/11/2018

following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 3/5/2018. Redacted Transcript Deadline set for 3/15/2018. Release of Transcript Restriction set for 5/14/2018. (akr) (Entered: 02/13/2018)
46 RESPONSE re 44 Order on Motion for Summary Judgment, Order on Motion to Dismiss, Motion Hearing, Motions Submitted, filed by Animal Legal Defense Fund, Defenders of Wildlife, Sierra Club. (Smith, Gloria) (dlg). (Entered: 02/13/2018)
47 SUPPLEMENTAL BRIEFING by Plaintiff Center for Biological Diversity re 28 Cross MOTION for Summary Judgment regarding consultation. (Segee, Brian) (dlg). (Entered: 02/13/2018)
48 SUPPLEMENTAL BRIEFING by Plaintiff California Coastal Commission, The re 30 MOTION for Summary Judgment . (Cayaban, Michael) (dlg). (Entered: 02/13/2018)
49 SUPPLEMENTAL BRIEFING by Defendants U.S. Customs and Border Protections, U.S. Department of Homeland Security, United States of America . (Attachments: # 1 Exhibit 28, # 2 Exhibit 29, # 3 Exhibit 30, # 4 Exhibit 31, # 5 Exhibit 31.A, # 6 Exhibit 31.B, # 7 Exhibit 31.C, # 8 Exhibit 31.D, # 9 Exhibit 31.E, # 10 Exhibit 31.F, # 11 Exhibit 31.G, # 12 Exhibit 31.H−Q, # 13 Exhibit 31.R−T, # 14 Exhibit 31.U, # 15 Proof of Service)(Thorp, Galen) (dlg). (Entered: 02/13/2018)
50 ORDER Denying Plaintiffs' Motions for Summary Judgment and Granting Defendants' Motions for Summary Judgment (ECF Nos. 18 , 28 , 29 , 30 , 35 ). The Court denies Plaintiffs' motions for summary judgment and grants Defendants' motions for summary judgment with the exception of the Center Plaintiff's seventh cause of action for FOIA violations. Signed by Judge Gonzalo P. Curiel on 2/27/18. (dlg) (jao). (Entered: 02/27/2018)
51 Notice of Document Discrepancies and Order Thereon by Judge Gonzalo P. Curiel Rejecting Document: Emergency Motion to Intervene for a Declaratory Judgment as Necessary Parties for "Remediation of Defendants' Inability to Timely Resolve Immigration Border Wall and [DACA/DAPA] Solution", With Brief−In−Support. Non−compliance with local rule(s), OTHER: Failure to comply with intervention under Federal Rule of Civil Procedure 24, Rejected document was returned to the filer. Signed by Judge Gonzalo P. Curiel on 3/21/18.(All non−registered users served via U.S. Mail Service)(dlg) (Additional attachment(s) added on 3/21/2018: # 1 Rejected Document) (dlg). (Entered: 03/21/2018)
52 Joint MOTION to Dismiss Plaintiff's FOIA Claims by Center for Biological Diversity. (Segee, Brian) (dlg). Modified on 3/26/2018 to send qc email for attorney to submit proposed order (dlg). (Entered: 03/23/2018)
53 ORDER Granting Joint 52 Motion for Dismissal of FOIA Claims With Prejudice. Signed by Judge Gonzalo P. Curiel on 3/26/18. (dlg) (jao). (Entered: 03/26/2018)
54 CLERK'S JUDGMENT re 50 . The Court DENIES Plaintiffs' motions for summary judgment and GRANTS Defendants' motions for summary judgment (dlg) (Main Document 54 replaced on 3/26/2018 to edit text in clerk's judgment per dj chambers)(jao). (Entered: 03/26/2018)
55 NOTICE OF APPEAL to the 9th Circuit as to 50 Order Denying Plaintiffs' Motions for Summary Judgment and Granting Defendants' Motions for Summary Judgment, by Center for Biological Diversity. (Filing fee $ 505 receipt number 0974−11094454.) (Notice of Appeal electronically transmitted to US Court of Appeals.) (Attachments: # 1 Representation Statement, # 2 Order, # 3 Judgment)(Segee, Brian). (Modified on 4/9/2018: Edited docket text re linked Order.) (akr). (Entered: 04/09/2018)
56 USCA Case Number 18−55474 for 55 Notice of Appeal to 9th Circuit, filed by Center for Biological Diversity. (akr) (Entered: 04/11/2018)
57 USCA Time Schedule Order as to 55 Notice of Appeal to 9th Circuit, filed by Center for Biological Diversity. (NOTICE TO PARTIES of deadlines regarding appellate transcripts: Appellant shall file transcript designation and ordering form with the US District Court (see attached), provide a copy of the form to the court reporter, and make payment arrangements with the court reporter on or by 5/9/2018 (see Ninth Circuit Rule 10−3.1); Due date for filing of transcripts in US District Court is

Case: 3:17-cv-1215 As of: 02/28/2020 09:04 AM PST 9 of 9

04/19/2018 04/26/2018 04/18/2019

6/8/2018.) (cc: Court Reporter). (Attachments: # 1 Transcript Designation and Ordering Form). (akr) (Entered: 04/11/2018)
58 ORDER of USCA as to 55 Notice of Appeal to 9th Circuit, filed by Center for Biological Diversity. The USCA sua sponte consolidates appeal Nos. 18−55474, 18−55475, and 18−55476. The USCA is in receipt of the motion to expedite filed by appellants in appeal No. 18−55476. Appellants indicate that appellees do not oppose the motion. Appellants in appeal Nos. 18−55474 and 18−55475 shall file a response or notice of non−opposition to the motion to expedite by Tuesday, April 24, 2018. Briefing is stayed pending further order. (akr) (Entered: 04/20/2018)
59 ORDER of USCA as to 55 Notice of Appeal to 9th Circuit, filed by Center for Biological Diversity. The unopposed motion to expedite these consolidated appeals is granted. Briefing schedule issued. Instructions issued. The Clerk shall calendar these cases before a panel of all Ninth Circuit Judges in August 2018. (akr) (Entered: 04/26/2018)
60 MANDATE of USCA affirming the decision of the USDC as to 55 Notice of Appeal to the 9th Circuit filed by Center for Biological Diversity. (akr) (Entered: 04/18/2019)

 
 Case 3:17-cv-01215-GPC-WVG Document 16 Filed 09/06/17 PageID.97 Page 1 of 50

1 Brendan Cummings (Bar No. 193952)

Anchun Jean Su (Bar No. 285167)

2 Center for Biological Diversity

3

1212 Broadway, Suite 800 Oakland, CA 94612

4

T: (510) 844-7100; F: (510) 844-7150 bcummings@biologicaldiversity.org; jsu@biologicaldiversity.org

5

6

Brian Segee (Bar No. 200795) Center for Biological Diversity

7

111 W. Topa Topa Street Ojai, CA 93023

8 T: (805) 750-8852 bsegee@biologicaldiversity.org
9

10

John Peter Rose (Bar No. 285819) Center for Biological Diversity

11

660 South Figueroa Street, Suite 1000 Los Angeles, CA 90017

12 T: (213) 785-5400

13 jrose@biologicaldiversity.org

14 Attorneys for Plaintiff

15

UNITED STATES DISTRICT COURT

16

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

17

18 Center for Biological Diversity, a 19 non-profit organization;

20

Plaintiff,

Case No. 3:17-cv-01215-GPC-WVG
Second Amended Complaint for Declaratory and Injunctive Relief

21

v.

22

23

U.S. Department of Homeland Security; U.S. Customs and Border

24 Protection; and Elaine Duke, in her

25

official capacity as Acting Secretary, U.S. Department of

26 Homeland Security,

27

Defendants.

28

Second Amended Complaint Page 1

17cv01215

Case 3:17-cv-01215-GPC-WVG Document 16 Filed 09/06/17 PageID.98 Page 2 of 50

1

INTRODUCTION

2

1. In this action for declaratory and injunctive relief, Plaintiff Center for

3 Biological Diversity (“the Center”)—an environmental conservation organization

4 that works to protect native wildlife species and their habitats—challenges the 5 failure of the U.S. Department of Homeland Security (“DHS”) and U.S. Customs

6 and Border Protection (“CBP”) (collectively, “the Agencies” or “Federal

7 Defendants”) to comply with the requirements of the National Environmental 8 Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., the Endangered Species Act 9 (“ESA”), 16 U.S.C. § 1531 et seq., and the Freedom of Information Act (“FOIA”), 10 5 U.S.C. § 552, in relation to border wall construction projects in San Diego 11 County, including: (1) the border wall prototype project, which would also serve

12 as the first new segment of border barrier built in California in several years

13 (“border wall prototype project”); and (2) the replacement of the westernmost 14 portion of the existing border fence (14 miles of existing primary and double layer

15 border fencing running from the Pacific Ocean to the eastern edge of Otay Mesa)

16 (“border wall replacement project”).

17

2. The border wall prototype project and border wall replacement

18 project are each federal actions that will impact the environment as well as several

19 threatened and endangered species, and are thus subject to the procedural and 20 substantive requirements of NEPA and the ESA, respectively.

21

3. Federal Defendants have not provided the Center or the general

22 public with notice or opportunity to comment under NEPA for the border wall

23 prototype project or border wall replacement project. Indeed, the Agencies have

24 not prepared any NEPA or ESA analysis for either the border wall prototype 25 project or the border wall replacement project.

26

4. Although NEPA does not require a plaintiff to provide federal

27 agencies with notice of alleged violations prior to filing suit, on June 1, 2017, the

28 Center wrote to the Agencies to provide notice of NEPA violations in relation to

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1 the border wall prototype project. The Agencies have not acknowledged or 2 responded to this Notice.

3

5. In addition, on June 1, 2017, the Center also provided the Agencies

4 with formal notice of violations of the ESA for their failure to consult with U.S. 5 Fish and Wildlife Service (“FWS”) in order to ensure that the border wall

6 prototype project does not jeopardize the continued existence of threatened or

7 endangered species, or result in the destruction or adverse modification of their 8 critical habitat. Similarly, on July 7, 2017, the Center provided the Agencies with

9 formal notice of ESA violations for their failure to consult with FWS in relation to

10 the border wall replacement project. Federal Defendants have failed to remedy 11 the alleged ESA violations during the 60-day notice period, and thus this second

12 amended complaint includes those violations.

13

6. In light of the Agencies’ failure and/or refusal to provide the public

14 with any information regarding their compliance with NEPA, the ESA, and other

15 environmental laws in relation to the border wall prototype project, on May 2,

16 2017, the Center submitted two requests for public records pursuant to FOIA, one 17 to DHS and one to CBP, seeking records pertaining to the Agencies’ NEPA

18 environmental analysis, as well as compliance with other environmental laws, for

19 the border wall prototype project.

20

7. Defendants have violated FOIA, or alternatively, the Administrative

21 Procedure Act, 5 U.S.C. §§ 701-706 (“APA”), with respect to the Center’s May 2,

22 2017 FOIA requests for records related to the Agencies’ compliance with NEPA 23 and other laws in relation to the border wall prototype project. Although the

24 Agencies have acknowledged their receipt of the FOIA requests, they have failed

25 to provide any responsive records or state when they might do so. Accordingly, 26 the Agencies are unlawfully withholding the records by failing to search for and

27 provide all responsive records.

28

8. On August 2, 2017—approximately a month and a half after the

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1 filing of this case—former DHS Secretary John Kelly issued a Determination in 2 the Federal Register purporting to waive the application of NEPA, the ESA, the 3 APA, and more than 30 additional laws not at issue in this lawsuit, to “various

4 border infrastructure projects” in “an approximately fifteen mile segment of the 5 border within the San Diego Sector that starts at the Pacific Ocean and extends

6 eastward,” pursuant to section 102(c) of the Illegal Immigration Reform and

7 Immigrant Responsibility Act of 1996 (“IIRIRA”). Codified at 8 U.S.C. § 1103 8 note. Determination Pursuant to Section 102 of the Illegal Immigration Reform 9 and Immigrant Responsibility Act of 1996, As Amended, 82 Fed. Reg. 35,984. 10 According to the Federal Register determination, the specific “border 11 infrastructure projects” subject to the purported waiver include the border wall

12 prototype project and the border wall replacement project at issue in this litigation.

13 Id.

14

9.

IIRIRA section 102(c)(1) provides that “[n]otwithstanding any other

15 provision of law, the Secretary of Homeland Security shall have the authority to

16 waive all legal requirements to ensure expeditious construction of the barriers and 17 roads under this section.” Once a waiver determination is issued, IIRIRA sections

18 102(c)(2)(A)-(C) restrict judicial review by providing federal district courts with

19 exclusive jurisdiction to hear all causes of action or claims arising from a waiver, 20 purporting to limit such causes of action or claims to those alleging a violation of

21 the Constitution of the United States, requiring such causes of action or claims to

22 be brought not later than 60 days after the DHS Secretary’s waiver determination, 23 and eliminating appellate court review of the district court decision regarding

24 constitutional claims, and instead only permitting plaintiffs to seek review of the

25 district court decision on constitutional claims through a petition for writ of 26 certiorari to the U.S. Supreme Court.

27

10. As a threshold matter, Plaintiff Center for Biological Diversity

28 challenges former DHS Secretary Kelly’s August 2, 2017 waiver determination as

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1 ultra vires, because the determination was outside of the scope of authority vested 2 in the DHS Secretary pursuant to IIRIRA section 102(c). Specifically, neither the

3 border wall prototype project nor the border wall replacement project is among

4 “the barriers and roads” subject to IIRIRA section 102(c) waivers. Federal courts 5 are empowered to consider challenges to ultra vires executive actions despite 6 language limiting or precluding statutory judicial review such as that found under

7 IIRIRA section 102(c). See, e.g., Dart v. United States, 848 F.2d 217, 224 (D.C. 8 Cir. 1998) (“[T]he Veterans’ Administrator cannot issue oil drilling permits—nor

9 can the Secretary of Labor rescind television licenses—and expect to escape

10 judicial review by hiding behind a finality clause.”).

11

11. In addition, Plaintiff Center for Biological Diversity alleges that the

12 DHS Secretary’s August 2, 2017 waiver determination, and the waiver authority

13 provided by IIRIRA section 102(c) generally, violate the U.S. Constitution in 14 several respects, including the Take Care Clause, the Separation of Powers

15 Doctrine, the Non-Delegation Doctrine, and the Presentment Clause.

16

JURISDICTION

17

12. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§

18 1331 and 1346, 5 U.S.C. §§ 701 to 706, 8 U.S.C. § 1103 note, and 5 U.S.C. §

19 552(a)(4)(B). The causes of action arise under the laws of the United States, 20 including NEPA, the ESA, FOIA, the APA, and IIRIRA, and the implementing

21 regulations established pursuant to these federal statutes, and the U.S.

22 Constitution. The relief requested is authorized pursuant to 28 U.S.C. §§ 1651

23 and 2201 to 2202, and 5 U.S.C. §§ 705 and 706.

24

VENUE

25

13. Venue is proper in this judicial district pursuant to 28 U.S.C. §

26 1391(b) and (e), because the violations are occurring here, and a substantial part

27 of the events or omissions giving rise to the claims have occurred in this district

28 due to decisions made by Federal Defendants, and/or failure(s) to act by Federal

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1 Defendants. In addition, venue is proper in this judicial district pursuant to 5 2 U.S.C. § 552(a)(4)(B), which provides venue for FOIA cases in this district,

3 because a portion of the responsive records may be found in this district.

4

PARTIES

5

14. Plaintiff Center for Biological Diversity is a non-profit environmental

6 organization dedicated to the protection of native species and their habitats

7 through science, policy, and environmental law. The Center has more than 1.5 8 million members and online activists. The Center is headquartered in Tucson,

9 Arizona, and has offices in Los Angeles and Oakland in California, as well as

10 numerous additional regional offices located throughout the country, and an 11 international office in Baja California Sur, Mexico.

12

15. The Center’s members and staff live in or regularly visit the U.S.-

13 Mexico borderlands region in San Diego County, as well as the borderlands 14 region of Baja California Norte, Mexico. The Center’s members and staff

15 regularly use the myriad federal, state, and local protected lands along the U.S.-

16 Mexico border in San Diego County, including areas impacted by and/or adjacent 17 to the location of the border wall prototype project and the border wall

18 replacement project, for hiking, camping, viewing and studying wildlife,

19 photography, and other vocational and recreational activities. The Center’s 20 members and staff derive recreational, spiritual, professional, scientific,

21 educational, and aesthetic benefit from their activities in these areas. The Center

22 has a long history of environmental advocacy within the borderlands region

23 generally and San Diego County borderlands region specifically. The Center’s

24 members and staff have specific intentions to continue to use and enjoy these

25 areas frequently and on an ongoing basis in the future.

26

16. The Center has an established track record of active participation in

27 the oversight of government activities and decision-making as well as consistent

28 practice of informing, educating, and counseling the public regarding

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1 environmental issues, policies, and laws relating to environmental issues. The 2 Center has displayed its ability to disseminate information obtained pursuant to

3 FOIA to the general public through far-reaching media, including news media, the

4 Center’s website and newsletters, and social media. The Center and its members 5 are harmed by Federal Defendants’ FOIA violations as they preclude the Center

6 from gaining a comprehensive understanding of the activities, decisions, priorities,

7 and communications related to the border wall prototype project and border wall 8 replacement project.

9

17. The Center has worked for nearly two decades to oppose

10 environmentally harmful border fencing and other harmful border security 11 projects along the U.S.-Mexico border generally, and the San Diego region

12 specifically. The Center also has a long history of advocating for the protection of

13 rare wildlife habitat that would be impacted by the San Diego border wall 14 prototype and border wall replacement project, as well as advocating for specific

15 species that would be harmed by the San Diego border wall prototype and border

16 wall replacement project, including the western snowy plover, California least 17 tern, Quino checkerspot butterfly, San Diego and Riverside fairy shrimp, and

18 coastal California gnatcatcher.

19

18. The Center and its members’ interests are harmed by Defendants’

20 violations of NEPA and the ESA. The proposed border wall prototype project and

21 border wall replacement project will result in construction of border barriers

22 where none currently exist (in the case of the prototypes), and the construction of 23 new border wall that is much higher and more impermeable than currently

24 existing border fencing. The border wall replacement project will entail a massive

25 construction operation with associated noise, lighting, and other impacts, and 26 which will likely necessitate new land clearing, grading, staging, and other

27 associated activities that will impact the surrounding environment. The violations

28 of NEPA and the ESA, and the construction which will occur without the benefit

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1 of compliance with these laws, will negatively impact the wildlife habitat and 2 imperiled species described above, which will injure the Center and its members’

3 aesthetic, conservation, recreational, scientific, educational, and wildlife

4 preservation interests in those habitats and species. These injuries would be 5 redressed by the requested relief directing Defendants to comply with those laws.

6

19. The Center and its members are harmed by the Agencies’ violations

7 of FOIA, or alternatively the APA, as well as its violations of NEPA, pertaining to 8 public notice and participation, as such violations will result in harm to the Center

9 and its members’ interests, and will preclude the Center and its members from

10 gaining a full understanding of the activities, decisions, priorities, and 11 communications related to the border wall prototype project and border wall

12 replacement project.

13

20. The Center and its members are harmed by former DHS Secretary

14 Kelly’s August 2, 2017 Determination under IIRIRA section 102(c) purporting to

15 waive NEPA, the ESA, the APA, and more than 30 additional laws not at issue in

16 this litigation. In waiving these laws, the August 2, 2017 Determination will 17 allow the border wall prototype and border wall replacement projects to proceed

18 without any compliance with NEPA and the ESA. The absence of environmental

19 law compliance will negatively impact the wildlife habitat and imperiled species 20 described above, which will injure the Center and its members’ aesthetic,

21 conservation, recreational, scientific, educational, and wildlife preservation

22 interests in those habitats and species. These injuries would be redressed by the 23 requested relief to void the waiver determination as inapplicable and

24 unconstitutional, and directing Defendants to comply with NEPA, the ESA, and

25 all other applicable laws. The August 2, 2017 Determination will also result in 26 harm to the Center and its members’ interests by precluding the application of

27 NEPA, the ESA, and the APA, which will preclude public notification and

28 transparency.

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1

21. Defendant DHS is an agency within the executive branch of the U.S.

2 government. DHS is responsible for ensuring border security along the U.S.-

3 Mexico border consistent with applicable legal requirements, including NEPA and

4 the ESA. In addition, DHS is in possession and control of the records that the 5 Center seeks under FOIA, and as such, it is subject to FOIA pursuant to 5 U.S.C.

6 § 552(f).

7

22. Defendant CBP is an agency within DHS. CBP is responsible for

8 ensuring border security along the U.S.-Mexico border consistent with applicable

9 legal requirements, including NEPA and the ESA. In addition, CBP is in

10 possession and control of the records that the Center seeks under FOIA, and as 11 such, it is subject to FOIA pursuant to 5 U.S.C. § 552(f).

12

23. Defendant Elaine Duke, Acting DHS Secretary, is sued in her official

13 capacity. Acting Secretary Duke is the official ultimately responsible under 14 federal law for ensuring that the actions and management decisions of DHS

15 comply with all applicable laws and regulations. Acting Secretary Duke’s

16 predecessor, former DHS Secretary John Kelly, invoked the IIRIRA section 17 102(c) waiver in relation to the border wall prototype project and border wall

18 replacement project on August 2, 2017.

19 20 A.

NEPA

LEGAL BACKGROUND

21

24. NEPA is the “basic national charter for protection of the

22 environment.” 40 C.F.R. § 1500.1(a)(1978). It was enacted with the ambitious

23 objectives of “encouraging productive and enjoyable harmony between man and

24 his environment . . . promoting efforts which will prevent or eliminate damage to

25 the environment and biosphere and stimulating the health and welfare of man; and

26 enriching the understanding of the ecological systems and natural resources

27 important to the Nation . . . .” 42 U.S.C. § 4321.

28

25. In order to achieve these goals, NEPA contains several “action

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1 forcing” procedures, most significantly the mandate to prepare an environmental

2 impact statement (“EIS”) on major Federal actions “significantly affecting the

3 quality of the human environment.” Robertson v. Methow Valley Citizens

4 Council, 490 U.S. 332, 348 (1989); 42 U.S.C. § 4332(2)(C).

5

26. The Council on Environmental Quality (“CEQ”) was created to

6 administer NEPA and has promulgated NEPA regulations, which are binding on

7 all federal agencies. See 42 U.S.C. §§ 4342, 4344; 40 C.F.R. §§ 1500–1508 8 (1978).

9

27. When a federal agency is not certain whether an EIS is required, it

10 must prepare a briefer document, known as an environmental assessment (“EA”).

11 40 C.F.R. § 1508.9 (1978). If the agency concludes in an EA that a project may

12 have significant impacts on the environment, then an EIS must be prepared. 40

13 C.F.R. § 1501.4 (1978). If an EA concludes that there are no significant impacts

14 to the environment, the federal agency must provide a detailed statement of

15 reasons why the project’s impacts are insignificant and issue a Finding of No

16 Significant Impact (“FONSI”). 40 C.F.R § 1508.13 (1978).

17

28. The Supreme Court has found that the preparation and public

18 circulation of EISs and EAs promotes NEPA’s broad environmental objectives in

19 two primary ways: “It ensures that the agency, in reaching its decision, will have

20 available, and will carefully consider, detailed information concerning significant

21 environmental impacts; it also guarantees that the relevant information will be

22 made available to the larger audience that may also play a role in both the

23 decision-making process and the implementation of that decision.” Methow

24 Valley Citizens Council, 490 U.S. at 349.

25

29. NEPA requires that “agencies shall integrate the NEPA process with

26 other planning at the earliest possible time to insure that planning and decisions

27 reflect environmental values, to avoid delays later in the process, and to head off

28 potential conflicts.” 40 C.F.R. § 1501.2 (1978); id. § 1502.5 (1978) (“An agency

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1 shall commence preparation of an [EIS] as close as possible to the time the agency

2 is developing or is presented with a proposal . . .”). The Ninth Circuit has

3 interpreted these regulations as requiring the NEPA process to be conducted

4 “before any irreversible and irretrievable commitment of resources.” Connor v. 5 Burford, 848 F.2d 1441, 1446 (9th Cir. 1998).

6

30. DHS has not promulgated regulations to implement NEPA, but has

7 issued an Instruction Manual. Instruction Manual 023-01-001-01, Revision 01,

8 Implementation of NEPA (Nov. 6, 2014) (“DHS NEPA Manual”). The Manual

9 specifically includes “proposed construction, land use, activity, or operation that

10 has the potential to significantly affect environmentally sensitive areas” as an

11 action “normally requiring” the preparation of at least an EA.

12

31. Echoing the general NEPA requirements regarding the need to

13 conduct NEPA early in the process, the DHS NEPA Manual directs DHS to

14 “integrate[] the NEPA process with other planning efforts at the earliest possible

15 stage so that environmental factors are considered with sufficient time to have a

16 practical influence on the decision-making process before decisions are made.”

17 DHS NEPA Manual, at p. IV-1. The Manual directs that agency components that

18 process applications for DHS funding or approval, such as the contracts that have

19 been and/or will be issued for the border wall prototype project and the border

20 wall replacement project, “have a responsibility to integrate NEPA requirements

21 early in the application process,” and to ensure that “completion of the NEPA

22 process occurs before making a decision to approve” the proposal.

23

32. Other agencies which commonly contract with private entities to

24 build public construction projects, such as the border wall prototype project and

25 border wall replacement project, have also promulgated regulations specifying

26 that NEPA must be completed as early as possible in the contracting or

27 procurement process and requiring that NEPA’s environmental and mitigation

28 measures must be incorporated into the contract. See, e.g., 23 C.F.R. § 635.505(b)

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1 (2016) (Department of Transportation (“DOT”) contracting agency “shall not 2 perform or contract for construction services (including early work packages of

3 any kind) prior to the completion of the NEPA process”); id. § 635.505(h) (2016) 4 (DOT contract “must include appropriate provisions ensuring that all 5 environmental and mitigation measures identified in the NEPA documentation

6 and committed to in the NEPA determination for the selected alternative will be

7 implemented.”); 10 C.F.R. § 1021.216(i) (1992) (Department of Energy agencies 8 shall complete NEPA “before taking any action pursuant to the contract or award

9 of financial assistance.”).

10

33. NEPA requires that the Agencies involve the public in preparing and

11 considering environmental documents that implement the Act. 40 C.F.R. §

12 1506.6; id. § 1506.6(b)(1) (1978) (requiring federal agencies to “[p]rovide public 13 notice of NEPA-related hearings, public meetings, and the availability of 14 environmental documents so as to inform those persons and agencies who may be

15 interested or affected”).

16

34. The CEQ regulations further direct federal agencies to “insure that

17 environmental information is available to public officials and citizens before

18 decisions are made,” and mandate that “public scrutiny [is] essential to

19 implementing NEPA.” 40 C.F.R. § 1500.1(b) (1978).

20

35. The Ninth Circuit has held that a “complete failure to involve or even

21 inform the public” about the agency’s preparation of a NEPA document violates

22 the statute’s public participation requirements. Citizens for Better Forestry v. U.S. 23 Dep’t of Agric., 341 F.3d 961, 970 (9th Cir. 2003); see also Brodsky v. Nuclear 24 Regulatory Comm’n, 704 F.3d 113, 122 (2nd Cir. 2013) (“The record before us 25 fails to provide any agency explanation for why no public participation was 26 deemed practicable or appropriate with respect to the challenged exemption.”)

27 (emphasis in original).

28

36. Underlying all of NEPA’s procedural requirements is the mandate

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1 that agencies take a ‘hard look’ at all of the environmental impacts and risks of a 2 proposed action. As stated by the Ninth Circuit, “general statements about

3 ‘possible effects’ and ‘some risk’ do not constitute a ‘hard look’ absent a

4 justification regarding why more definitive information could not be provided.” 5 Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1213 (9th Cir. 6 1998) (internal citations omitted).

7 B. 8

Endangered Species Act 37. The ESA, 16 U.S.C. §§ 1531–1544, is “the most comprehensive

9 legislation for the preservation of endangered species ever enacted by any nation.”

10 TVA v. Hill, 437 U.S. 153, 180 (1978). Its fundamental purposes are “to provide a 11 means whereby the ecosystems upon which endangered species and threatened

12 species depend may be conserved [and] to provide a program for the conservation

13 of such endangered species and threatened species . . . .” 16 U.S.C. § 1531(b).

14

38. To achieve these objectives, the ESA directs the Secretary of the

15 Interior, through the FWS, to determine which species of plants and animals are

16 “threatened” and “endangered” and place them on the list of protected species. Id. 17 § 1533. An “endangered” or “threatened” species is one “in danger of extinction

18 throughout all or a significant portion of its range,” or “likely to become

19 endangered in the near future throughout all or a significant portion of its range,”

20 respectively. Id. § 1532(6), (20).

21

39. Once a species is listed, the ESA provides a variety of procedural and

22 substantive protections to ensure not only the species’ continued survival, but its 23 ultimate recovery, including the designation of critical habitat, the preparation and

24 implementation of recovery plans, the prohibition against the “taking” of listed

25 species, and the requirement for interagency consultation. Id. §§ 1533(a)(3), (f), 26 1538, 1536.

27

40. The ESA recognizes that federal agencies, such as DHS and CBP,

28 have a critical role to play in meeting these statutory purposes. The ESA

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1 establishes that it is “the policy of Congress that all Federal departments and 2 agencies shall seek to conserve endangered species and threatened species and

3 shall utilize their authorities in furtherance of the purposes” of the ESA. Id. §

4 1531(c)(1).

5

41. To implement this policy, Section 7(a)(1) of the ESA requires that

6 “Federal agencies shall, in consultation with and with the assistance of [FWS],

7 utilize their authorities in furtherance of the purposes of this Act by carrying out 8 programs for the conservation of endangered species and threatened species.” Id. 9 § 1536(a)(1).

10

42. In addition to this overarching mandate, the ESA requires that

11 “[e]ach Federal agency shall, in consultation with . . . [FWS], insure that any

12 action authorized, funded, or carried out by such agency . . . is not likely to

13 jeopardize the continued existence of any endangered species or threatened 14 species or result in the destruction or adverse modification of [critical habitat].”

15 Id. § 1536(a)(2).

16

43. FWS’ regulations define an agency “action” to mean “all activities or

17 programs of any kind authorized, funded, or carried out, in whole or in part, by

18 Federal agencies.” 50 C.F.R. § 402.02 (2016).

19

44. Section 7(a)(2) contains both procedural and substantive mandates.

20 Substantively, it requires that all federal agencies avoid actions that: (1) jeopardize

21 listed species; or (2) destroy or adversely modify designated critical habitat.

22 Procedurally, to ensure compliance with the substantive standards, the federal 23 agency taking action and FWS take part in a cooperative analysis of potential

24 impacts to listed species and their designated critical habitat known as the

25 consultation process. 16 U.S.C. § 1536(a)(2). The consultation process has been

26 described as the “heart of the ESA.” Western Watersheds Project v.

27 Kraayenbrink, 632 F.3d 472, 495 (9th Cir. 2011).

28

45. Through the formal Section 7 consultation process, FWS prepares a

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1 “biological opinion” as to whether the action is likely to jeopardize the species or 2 destroy or adversely modify critical habitat and, if so, suggests “reasonable and

3 prudent alternatives” to avoid that result. 16 U.S.C. § 1536(b)(3)(A). During the

4 consultation process, both agencies must “use the best scientific and commercial 5 data available.” Id. § 1536(a)(2); 50 CFR § 402.14(d). 6 C. Freedom of Information Act

7

46. FOIA’s basic purpose is government transparency. It establishes the

8 public’s right to access all federal agency records unless such records may be

9 withheld pursuant to one of nine, narrowly construed FOIA exemptions. 5 U.S.C.

10 § 552(b)(1)-(9).

11

47. FOIA imposes strict and rigorous deadlines on federal agencies when

12 they receive a request for records pursuant to FOIA. Specifically, an agency must

13 determine whether to disclose responsive records and notify the requester of its 14 determination within 20 working days of receiving a FOIA request, and it must

15 make records “promptly” available, unless it can establish that certain unusual

16 circumstances are present and/or that it may lawfully withhold records, or portions 17 thereof, from disclosure. Id. § 552(a)(3)(A), (a)(6). Also within 20 working days, 18 the agency must inform the requester that it has a right to appeal the agency’s

19 determination. Id. § 552(a)(6)(A)(i).

20

48. FOIA places the burden on the agency to prove that it may withhold

21 responsive records from a requester. Id. § 552(a)(4)(B).

22

49. Congress has specified limited circumstances in which federal

23 agencies may obtain more time to make the determination that is required by 5

24 U.S.C. § 552(a)(6)(A)(i).

25

50. First, an agency may toll the 20-working-day deadline to seek

26 additional information or clarification from a requester, but that tolling period

27 ends when the agency receives such information or clarification. Id. § 28 552(a)(6)(A).

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1

51. Second, an agency may extend the 20-working-day deadline for an

2 additional 10 working days by giving a written notice to the requester that sets

3 forth “unusual circumstances” to justify a deadline extension, which also requires

4 that it provide the date by which the agency expects to make the determination. 5 Id. § 552(a)(6)(B)(i). However, to invoke such “unusual circumstances,” the 6 agency must provide the requester with “an opportunity to limit the scope of the

7 request so that it may be processed within [20 working days] or an opportunity to 8 arrange with the agency an alternative time frame for processing the request or a

9 modified request.” Id. § 552(a)(6)(B)(ii). In addition, when asserting unusual 10 circumstances, the agency “shall make available its FOIA Public Liaison” to 11 “assist in the resolution of any disputes between the requester and the agency.”

12 Id.

13

52. FOIA requires each agency to make reasonable efforts to search for

14 records in a manner that is reasonably calculated to locate all records that are

15 responsive to the FOIA request. Id. § 552(a)(3)(C)-(D).

16

53. FOIA requires federal agencies to expeditiously disclose requested

17 records, see id. § 552, and mandates a policy of broad disclosure of government

18 records. Any inquiry under FOIA brings with it a strong presumption in favor of

19 disclosure.

20

54. Congress recognized that in certain, limited instances, records may be

21 withheld as exempt from FOIA’s broad disclosure mandate, and thus it created

22 nine categories of exemptions. Id. § 552(b). These exemptions, however, are 23 narrowly construed in light of FOIA’s dominant objective of disclosure, not

24 secrecy.

25

55. The U.S. district courts have jurisdiction “to enjoin the agency from

26 withholding agency records and to order the production of any agency records

27 improperly withheld from the complainant.” Id. § 552(a)(4)(B).

28

56. Alternatively, an agency’s response to a FOIA request is subject to

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1 judicial review under the APA, which confers a right of judicial review on any

2 person who is adversely affected by an agency action, 5 U.S.C. § 702, and

3 authorizes district courts to compel agency action that is unlawfully withheld or

4 unreasonably delayed. Id. § 706(1). District courts must set aside any agency

5 action that is found to be “arbitrary, capricious, an abuse of discretion or

6 otherwise not in accordance with law.” Id. § 706(2)(A).

7 D. The Illegal Immigration Reform and Immigrant Responsibility Act of

8

1996

9

57. Section 102 of the 1996 IIRIRA was the first legislative enactment

10 under which Congress specifically authorized the Attorney General to construct

11 “border barriers and roads.”1 P.L. 104-208, div. C., codified at 8 U.S.C. § 1103

12 note.

13

58. Prior to IIRIRA’s enactment, USBP in 1990 (with the assistance of

14 the U.S. Army Corps of Engineers and the National Guard) began constructing a

15 border fence in the San Diego region, utilizing Army surplus carbon steel mats

16 which were used as landing strips during the Vietnam War. The San Diego border

17 fence—the first in history to be constructed along the U.S.-Mexico border (other

18 than chain link)—was completed in 1993, beginning at the Pacific Ocean and

19 running approximately 14 miles eastward to the Otay Mesa region.

20

59. The 1994 Border Patrol Strategic Plan: 1994 and Beyond,

21 emphasized a “prevention through deterrence” strategy under which the agency

22 1 Prior to the September 11, 2001 terrorist attacks, the Attorney General was

23 vested with the authority over immigration laws. The Attorney General had, in

24

turn, delegated that authority to the Immigration and Naturalization Service (“INS”) and its component agency U.S. Border Patrol (“USBP”), which were

25 located within the Department of Justice. Pursuant to the Homeland Security Act

26

of 2002, P.L. 107-296, DHS was created, the INS was abolished, and the INS immigration functions, as well as its component agency USBP, were transferred to

27 DHS. Under DHS, USBP became a component of the newly created agency CBP.

28

IIRIRA section 102 was subsequently amended to substitute the DHS Secretary for the Attorney General as having responsibility over border barriers and roads.

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1 significantly increased agent numbers, deployed technological aids such as ground 2 sensors and surveillance cameras, and proposed extensive construction of border

3 fences, roads, and other border security infrastructure.

4

60. As part of the prevention through deterrence strategy, and in

5 recognition that Congress had never provided INS and USBP with specific

6 statutory authority to construct border barriers, Congress enacted IIRIRA in 1996.

7 IIRIRA section 102, for the first time, provided INS and USBP with general 8 authorization to build border barriers, as well as specific direction regarding the

9 location and extent of specific border barriers to be constructed.

10

61. Amended several times, IIRIRA section 102 remains the primary

11 federal statute addressing border barriers, pursuant to three primary provisions: (i)

12 section 102(a) (providing general authority to construct border fences and other

13 border barriers); (ii) section 102(b) (carrying out subsection (a), by providing 14 specific mandates for border barrier construction, and the deadlines for such

15 construction, among other requirements); and (iii) section 102(c) (legal waiver

16 authority).

17

62. IIRIRA section 102(a), which remains substantively the same as

18 originally enacted in 1996, provided the Attorney General (now the DHS

19 Secretary) with the general authority to “take such actions as may be necessary to 20 install additional physical barriers and roads . . . in the vicinity of the United

21 States border to deter illegal crossings in areas of high illegal entry into the United

22 States.”

23

63. IIRIRA section 102(b) “carr[ies] out subsection (a)” by identifying

24 specific border barriers to be constructed, establishing specific deadlines for the

25 construction of such barriers, and other requirements.

26

64. The only border fence segment initially mandated by Congress under

27 IIRIRA section 102(b) was the construction of a double and triple layer border

28 fence to further fortify the 14-mile long San Diego “primary” border fence that

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1 was finished in 1993.

2

65. As originally enacted, IIRIRA section 102(c) stated that the

3 provisions of NEPA and the ESA “[were] waived to the extent the Attorney

4 General determines necessary to ensure expeditious construction of the barriers

5 and roads under this section.” At the time of its enactment, the Department of

6 Justice and INS opposed IIRIRA section 102(c) and established a policy not to use

7 the waiver authority. See March 6, 1997 Memorandum from INS Assistant

8 Commissioner David Yentzer.

9

66. The IIRIRA Section 102(c) waiver modifier “under this section”

10 refers to the specific border fencing required under IIRIRA section 102(b), which

11 by its plain language “carries out” DHS’s general authority to “install additional

12 physical barriers and roads” under IIRIRA section 102(a). At the time of

13 IIRIRA’s enactment, the specific border fencing directed under IIRIRA section

14 102(b) was limited to the 14-mile double and triple layer San Diego border fence.

15 E. The 2005 REAL ID Act Amendments to IIRIRA Section 102(c)

16

67. Enacted in 2005 as an unrelated legislative rider to the “Emergency

17 Supplemental Appropriations Act for Defense, the Global War on Terror, and

18 Tsunami Relief, 2005,” section 102 of the REAL ID Act amended the section

19 102(c) IIRIRA waiver provision.2 P.L. 109-13, div. B. Specifically, the REAL

20 ID Act amendment expanded the IIRIRA section 102(c) waiver authority beyond

21 NEPA and the ESA to permit the DHS Secretary “to waive all legal requirements

22 such Secretary, in such Secretary’s sole discretion, determines necessary to ensure

23 expeditious construction of the barriers and roads under this section.”

24

25 2 It is a potentially confusing coincidence that section 102 of the REAL ID Act

26

amended section 102 of the IIRIRA. The REAL ID Act addressed border security, including the amendment to IIRIRA section 102(c), but its scope was

27 much broader, consisting of four additional titles addressing: asylum and removal;

28

drivers’ licenses; H-2B temporary nonimmigrant and EB-3 nurses visas.

worker

provisions;

and

Australian

E

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1

68. In addition, section 102 of the REAL ID Act amended the IIRIRA

2 section 102(c) waiver authority to restrict judicial review in the following

3 respects: purporting to limit “all causes or claims” arising from any waiver

4 determination made by the DHS Secretary to alleged constitutional violations; 5 requiring any such constitutional challenge to be filed not later than 60 days after

6 the Secretary’s determination; and eliminating appellate court review of the

7 district court’s decision on the alleged constitutional violations, instead only 8 permitting review upon a writ of certiorari to the Supreme Court.

9

69. The REAL ID Act was introduced by Judiciary Chairman James

10 Sensenbrenner in the House of Representatives on January 26, 2005, and assigned 11 the bill number H.R. 418. Despite significant controversy concerning the section

12 102 waiver provisions and numerous other provisions of H.R. 418, there were no

13 Committee hearings held on the bill in either Chamber of Congress.

14

70. Two weeks after introduction, H.R. 418 was considered in the full

15 House on February 9, 2005 (151 Cong. Rec. H453-471) and February 10, 2005

16 (151 Cong. Rec. H527-566).

17

71. The REAL ID Act was never specifically considered in the Senate, as

18 it was added to the Emergency Supplemental Appropriations Act during

19 conference committee. As stated by one Senator, the bill “was simply grafted 20 onto the emergency supplemental appropriations bill that provides funding for our

21 military operations and our troops, without debate or participation by the

22 conferees.” 151 Cong. Rec. S4820 (daily ed. May 10, 2005) (Statement of 23 Senator Byrd).

24

72. Congress intended the REAL ID Act’s amendment and expansion of

25 that 102(c) waiver authority, like the IIRIRA section 102(c) waiver authority as 26 originally enacted in 1996, to apply to the specific border barrier and road

27 requirements at IIRIRA section 102(b), which carries out the general border

28 barrier authority at IIRIRA section 102(a). At that time, the only specific border

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1 barriers required under section 102(b) remained the 14-mile San Diego double and 2 triple layer fence proposals.

3

73. Congress’s intent that the expansion of the IIRIRA section 102(c)

4 waiver authority under section 102 of the REAL ID Act continue to be limited to 5 the specific border barriers mandated by IIRIRA section 102(b) is evidenced by

6 the bill’s plain language, as well as statements by the bill’s author and co-sponsors

7 during the limited House Floor debate.

8

74. Indeed, the bill’s official title made clear that Congress’s intent in

9 expanding the IIRIRA section 102(c) waiver authority was specific to the border

10 barrier segments identified under section 102(b): “To establish and rapidly 11 implement regulations for State driver’s license and identification document

12 security standards, to prevent terrorists from abusing the asylum laws of the

13 United States, to unify terrorism-related grounds for inadmissibility and removal, 14 and to ensure expeditious construction of the San Diego border fence.” (emphasis 15 added).

16

75. The intended limitation of the IIRIRA section 102(c) waiver

17 authority to the San Diego double and triple layered fence specified under IIRIRA

18 section 102(b) was also repeatedly emphasized by the bill’s supporters on the

19 House Floor. As stated by the bill’s author:

20

[T]he REAL ID Act will waive Federal laws to the extent

21

necessary to complete gaps in the San Diego border security fence, which is still stymied 8 years after

22

congressional authorization.

23 24 151 Cong. Rec. H454 (daily ed., Feb. 9, 2005)(Statement of Rep. 25 Sensenbrenner)(emphasis added); see also Cong. Rec. H471 (“H.R. 418 provides 26 the Secretary of Homeland Security with authority to waive environmental laws,

27 so that the border fence running 14 miles east from the Pacific Ocean at San 28 Diego may finally be completed.”) (daily ed., Feb. 9, 2005)(Statement of Rep.

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1 Hoekstra)(emphasis added).

2 F. 3

The 2006 Secure Fence Act Amendments to IIRIRA Section 102(b)

4

76. President George W. Bush signed the Secure Fence Act on October

5 26, 2016. P.L. 109-367.

6

77. Section 3 of the Secure Fence Act (“Construction of Fencing and

7 Security Improvements in Border Area from Pacific Ocean to Gulf of Mexico”)

8 significantly expanded upon IIRIRA section 102(b) and its previous sole focus on

9 the 14-mile San Diego double and triple layer fence construction. Under the

10 Secure Fence Act amendments to IIRIRA section 102(b), Congress directed DHS

11 to “provide for at least 2 layers of reinforced fencing [and] the installation of

12 additional physical barriers, roads, lighting, cameras, and sensors” in five specific

13 segments along the U.S.-Mexico border totaling approximately 850 miles.

14 IIRIRA, former §102(b)(1)(A)(i)-(v). The required border barrier construction

15 included one California segment, two Texas segments, one segment encompassing

16 portions of both California and Arizona, and one segment encompassing portions

17 of both New Mexico and Texas.

18

78. Section 3 further amended IIRIRA section 102(b) to add the specific

19 requirement that two of these segments be considered “priority areas,” with

20 construction deadlines of May 30, 2008 and December 31, 2008. Former IIRIRA

21 § 102(b)(1)(B)(i)-(ii).3

22

79. Congress did not specifically consider the impact of the Secure Fence

23 Act amendments on the scope of the IIRIRA section 102(c) waiver.

24

25 3 In addition to its IIRIRA amendments, the Secure Fence Act directed the DHS

26

Secretary to achieve and maintain operational control over the borders of the United States [including the northern and coastal borders] through surveillance

27 activities and physical infrastructure enhancements to prevent unlawful entry and

28

facilitate CBP’s access to the borders. Pub. L. No. 109-367, § 3, codified at 8 U.S.C. § 1701 note.

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1 G. The 2008 Consolidated Appropriations Act Amendments to IIRIRA

2

Section 102(b)

3

80. Just over a year after enactment of the Secure Fence Act, President

4 George W. Bush signed the 2008 Consolidated Appropriations Act on December

5 26, 2007. P.L. 110-161, div. E.

6

81. Section 564 of the 2008 Consolidated Appropriations Act again

7 amended section 102(b) of the IIRIRA to scale back DHS’s duties with respect to

8 border barriers and roads as defined under the 2006 Secure Fence Act

9 amendments. These modifications—which remain the law today—include: (1) 10 eliminating the requirement that border barriers be built in any specific locations, 11 and instead specifying that such barriers be placed “along not less than 700 miles

12 of the southwest border where fencing would be most practical and effective”; (2) 13 eliminating the requirement of double-layered fencing; and (3) amending the 14 “priority areas” requirement to direct that DHS identify and construct 370 miles of

15 border barriers by December 31, 2008. IIRIRA § 102(b)(1)(A)-(B).

16

82. The 2008 Appropriations Act also added a new consultation

17 requirement to IIRIRA section 102(b), directing that DHS “shall consult with the

18 Secretary of the Interior, the Secretary of Agriculture, States, local governments, 19 Indian tribes, and property owners in the United States to minimize the impact on 20 the environment, culture, commerce, and quality of life for the communities and

21 residents located near the sites where” border barriers are constructed. IIRIRA § 22 102(b)(1)(C).

23

FACTUAL BACKGROUND

24 A. 25

Past Construction of Border Barriers and Use of the Waiver Authority Under IIRIRA

26

83. Enabled by billions of dollars in Congressional appropriations, and in

27 response to IIRIRA’s amendments by the 2005 REAL ID Act, 2006 Secure Fence

28 Act, and 2008 Consolidated Appropriations Act, DHS has greatly increased the

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1 extent of border barriers and roads along the U.S.-Mexico border.

2

84. In order to facilitate this extensive construction, during the George

3 W. Bush Administration’s second term, former DHS Secretary Michael Chertoff

4 published five “notices of determination” in the Federal Register that he was 5 invoking the IIRIRA Section 102(c) authority to waive in their entirety a total of

6 more than 35 laws that would have otherwise applied to construction of border

7 fencing and roads. These waivers applied to border barrier and road construction 8 in the following areas: (i) San Diego, 70 Fed. Reg. 55,622 (Sept. 22, 2005)(13.9

9 miles); (ii) Barry M. Goldwater Range, Arizona, 72 Fed. Reg. 2,535 (Jan. 19,

10 2007)(37.3 miles); (iii) San Pedro Riparian National Conservation Area 11 (administered by U.S. Bureau of Land Management), Arizona, 72 Fed. Reg.

12 60,870 (Oct. 26, 2007)(5.5 miles); (iv) Hidalgo County, Texas, 73 Fed. Reg.

13 19,077 (April 3, 2008)(corrected on April 8, 2008)(21 miles); (v) Various Areas 14 in Texas, New Mexico, Arizona, and California, 73 Fed. Reg. 18,293 (April 3,

15 2008)(546.5 miles).

16

85. In all five of these determinations, the former DHS Secretary waived

17 application of NEPA and the ESA. In addition to these laws, the former DHS

18 Secretary waived application of the Clean Water Act, 33 U.S.C. § 1251 et seq.; 19 National Historic Preservation Act, Pub. Law 89-665; Migratory Bird Treaty Act, 20 16 U.S.C. § 703 et seq.; Clean Air Act, 42 U.S.C. § 7401 et seq.; Archeological 21 Resources Protection Act, 16 U.S.C. § 470aa et seq.; Safe Drinking Water Act, 42

22 U.S.C. § 300f et seq.; Wild and Scenic Rivers Act, 16 U.S.C. § 1281 et seq.; 23 Wilderness Act, 16 U.S.C. § 1131 et seq.; National Forest Management Act, 16 24 U.S.C. § 1600 et seq.; Native American Graves Protection and Repatriation Act, 25 42 U.S.C. § 2000bb; and American Religious Freedom Act, 42 U.S.C. § 1996, as 26 well as numerous additional laws.

27

86. Collectively, the five REAL ID Determinations waived laws that

28 otherwise would have applied to approximately 624.5 miles of border barrier and

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1 road construction.

2

87. Clearly, DHS has taken aggressive action to comply with Congress’s

3 IIRIRA mandates, including the repeated use by former DHS Secretary Chertoff

4 of the IIRIRA section 102(c) waiver to “ensure expeditious construction” of the 5 specific barriers and roads mandated by IIRIRA section 102(b), which have been

6 identified by Congress as necessary to carry out DHS’s general authority to

7 construct border barriers and roads necessary to deter illegal crossing in areas of 8 high illegal entry into the United States under IIRIRA section 102(a).

9

88. Consequently, DHS has met its statutory responsibilities to construct

10 the specific “fencing and road improvements along the border” as currently 11 defined by IIRIRA section 102(b).

12

89. As of February 2017, DHS has constructed 654 miles of “primary”

13 border barriers and approximately 5,000 miles of roads along the U.S.-Mexico 14 border. See “Southwest border security: Additional actions needed to better assess 15 fencing’s contributions to operations and provide guidance for identifying

16 capability gaps.” U.S. Government Accountability Office (“GAO”) Report 1717 331, a report to congressional requesters (February 2017).

18

90. DHS has met its specific mandate to identify and construct 370 miles

19 of border fencing in “priority areas . . . where fencing would be most practical and 20 effective.” IIRIRA § 102(b)(1)(B).

21

91. DHS has also met its specific mandate to “construct reinforced

22 fencing along not less than 700 miles of the southwest border where fencing 23 would be most practical and effective.” IIRIRA § 102(b)(1)(A). In addition to the

24 654 miles of primary fencing constructed by DHS, the agency has constructed an

25 additional 37 miles of double-layered fencing and 14 miles of triple-layered 26 fencing. In total, DHS has deployed a total of 705 miles of reinforced border

27 fencing, exceeding the 700-mile minimum under IIRIRA section 102(b)(1)(A).

28

92. As summarized recently by the GAO:

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1

From fiscal years 2005 through 2015, CBP increased the

2

total miles of primary border fencing on the southwest border from 119 miles to 654 miles—including 354 miles

3

of primary pedestrian fencing and 300 miles of primary vehicle fencing. With 654 miles of primary fencing

4

currently deployed, CBP officials have stated that CBP is in compliance with its legal requirements for the

5

construction of the southwest border fencing on the substantial discretion provided to the Secretary of

6

Homeland Security to determine the appropriate

7

placement of fencing.

8 GAO Report, at p. 8.

9 B. 10 11

January 25, 2017 Executive Order 13767 (“Border Security and Immigration Enforcement Improvement”)
93. On January 25, 2017, President Donald J. Trump issued Executive

12 Order No. 13767, entitled “Border Security and Immigration Enforcement 13 Improvement” (“Executive Order”), which directed DHS to construct a “secure, 14 contiguous, and impassable physical barrier” along the entirety of the nearly 2,000

15 mile-long U.S.-Mexico border. The Executive Order defined “wall” to mean “a 16 contiguous, physical wall or similarly secure, contiguous, and impassable physical 17 barrier.”

18

94. On February 17, 2017, former DHS Secretary John Kelly issued a

19 memorandum regarding “Implementing the President’s Border Security and

20 Immigration Enforcement Improvements Policies” (“Kelly Memorandum”),

21 which directed CBP to “immediately begin planning, design, construction, and 22 maintenance of a wall, including the attendant lighting, technology (including

23 sensors), as well as patrol and access roads, along the land border with Mexico in

24 accordance with existing law . . . .” Further, the Kelly Memorandum directed the 25 DHS Undersecretary for Management, in consultation with CBP, to “immediately

26 identify and allocate all sources of available funding for the planning, design,

27 construction, and maintenance of a wall . . . .” 28

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1 C. Border Wall Prototype Project

2

95. In accordance with the Executive Order and the Kelly Memorandum,

3 on March 17, 2017, DHS released two Requests for Proposals (“RFPs”)—one for

4 a “Solid Concrete Border Wall Prototype” and the second for an “Other Border 5 Wall Prototype.” The “threshold requirements” for the two prototypes are

6 identical, with the exception that the “other border wall prototype” does not have

7 to be constructed of “reinforced concrete.” These contractual thresholds include 8 requirements that the wall design “shall be physically imposing in height.” The

9 government’s “nominal concept is for a 30-foot high wall,” and designs “with

10 heights of less than 18 feet are not acceptable.” The RFPs further specify that the 11 wall designs “shall prevent digging or tunneling below it for a minimum of 6 feet

12 below the lowest adjacent grade,” “shall be constructible to slopes up to 45

13 percent,” and shall be built in a manner that it would take at least an hour to 14 breach with a “sledgehammer, car jack, pickaxe, chisel, battery operated impact

15 tools, battery operated cutting tools, Oxy/acetylene torch or other similar hand-

16 held tools.”

17

96. The 30-foot border wall envisioned under the Executive Order and

18 called for under the RFP’s would significantly differ from existing border fencing

19 and other border barriers with respect to height, construction materials, and 20 permeability, and would pose distinct and additive environmental risks and harms.

21

97. Phase I of the RFPs required bidders to submit Concept Papers by

22 April 4, 2017. Up to 20 bidders from Phase I could be invited to contract for

23 participation in Phase II of the bidding process.

24

98. Phase II requires the Contractors to “provide for the design and

25 construction of a full-scale prototype, which shall be 30 feet long, and “will be

26 constructed at a location in San Diego, CA as determined by the Government.”

27

99. The border wall prototype project will be constructed on federally-

28 owned land in San Diego, California, within the vicinity of Otay Mesa near the

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1 base of the Otay Mountain Wilderness and the eastern terminus of existing 2 secondary fencing within the approximately 14-mile long, westernmost segment

3 of the current border fence beginning at the Pacific Ocean.

4

100. The Otay Mesa area, where the border wall prototype project will

5 take place, is of high environmental and natural resources value. It contains

6 several vernal pools—one of the most imperiled wildlife habitats in San Diego

7 County—and designated critical habitat for numerous listed threatened and 8 endangered species, including the Quino checkerspot butterfly and San Diego

9 fairy shrimp, as well as habitat for non-listed sensitive and rare species, such as

10 the burrowing owl.

11

101. On August 31, 2017, Acting CBP Deputy Commissioner Ronald

12 Vitiello held a press briefing in which he announced that CBP had chosen four

13 vendors to construct the “Solid Concrete Wall” prototypes, and that the agency 14 would announce four additional vendors to construct the “Other Border Wall”

15 prototypes at a later date.

16 D. San Diego County Border Wall Replacement Project

17

102. In addition to the border wall prototype project, Federal Defendants

18 are implementing the Executive Order and the Kelly Memorandum through the

19 proposed construction of a border wall to replace the existing 14-mile primary and 20 secondary fencing in San Diego County. This construction has been described by

21 Federal Defendants in various pronouncements and agency documents, including

22 the March 2017 document, entitled “Building The Wall: The Strategy & Way 23 Forward” (“Wall Strategy Document”), and the August 2, 2017 IIRIRA section

24 102(c) determination by former DHS Secretary Kelly

25

103. The 14-mile San Diego border wall replacement project will likely

26 impact numerous ESA-listed endangered and threatened species, and their

27 designated critical habitat, including the arroyo toad, the California least tern, and

28 the Southwestern willow flycatcher. The proposed 30-foot high replacement wall

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1 is notably higher than the existing border fencing, and may be constructed of 2 impermeable concrete, both of which would exacerbate environmental impacts of

3 the existing border fencing.

4

104. Even though this region has already been heavily impacted by prior

5 border fence construction and other activities and infrastructure, the border wall

6 replacement project is a major construction project that poses significant

7 additional threats to aquatic resources and other rare wildlife habitats, as well as 8 the numerous endangered species and imperiled habitats that lie within the path of

9 the wall. Some of these impacts could likely be avoided or mitigated by prior

10 compliance with NEPA, the ESA, and other laws.

11

105. Federal Defendants have failed to comply with NEPA, the ESA, or

12 other environmental laws for the border wall prototype project and border wall

13 replacement project. Federal Defendants have also failed to fulfill their IIRIRA 14 Section 102(b)(1)(C) consultation requirements.

15

106. As a consequence of Federal Defendants’ failure to provide for any

16 public participation or consultation in their consideration and authorization of the 17 border wall prototype project and border wall replacement project, the Center and

18 other members of the public did not have any opportunity to obtain information

19 about or provide input prior to approval of those projects.

20 E. 21

Prior IIRIRA Section 102(c) Waivers Are Inapplicable to the Border Wall Prototype Project and Border Wall Replacement Project

22

107. Former DHS Secretary Chertoff’s first use of the IIRIRA section

23 102(c) waiver authority applied to the 14-mile border fence segment that would

24 be replaced under the border wall replacement project. 70 Fed. Reg. 55,622 (Sept.

25 22, 2005). As stated in that notice, former Secretary Chertoff determined that it

26 was necessary to waive NEPA, ESA, and several other laws “with respect to the

27 construction of the barriers and roads” associated with the 14-mile border fence.

28

108. As reflected in the language of the notice, the 2005 waiver applied to

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1 the initial construction of the 14-mile border fence, not the border wall prototype

2 project and border wall replacement project now proposed. The 2005 waiver

3 cannot reasonably be interpreted to exempt compliance with the waived laws in

4 perpetuity for subsequent work to maintain or repair the existing 14-mile border

5 fence, or the construction of border wall prototypes, even if the footprint for those

6 projects falls within the geographical boundaries of the 2005 waiver.

7 F. The August 2, 2017 IIRIRA Section 102(c) Waiver

8

109. On August 2, 2017, former DHS Secretary John Kelly issued a

9 Determination in the Federal Register purporting to invoke IIRIRA section 102(c) 10 in order to waive the application of NEPA, the ESA, and more than 30 additional

11 laws not at issue in this lawsuit to “various border infrastructure projects” in the

12 “project area,” which is defined as “an approximately fifteen mile segment of the

13 border within the San Diego Sector that starts at the Pacific Ocean and extends

14 eastward,” starting at “the Pacific Ocean and extending to approximately one mile

15 east of Border Monument 251.” 82 Fed. Reg. 35,984-85.

16

110. The additional laws purportedly waived by the August 2, 2017

17 determination are the: Clean Water Act, 33 U.S.C. § 1251 et seq.; National

18 Historic Preservation Act, Pub. L. 89-665; Migratory Bird Treaty Act, 16 U.S.C. §

19 703 et seq.; Clean Air Act, 42 U.S.C. § 7401 et seq.; Archaeological Resources 20 Protection Act, 16 U.S.C. § 470aa et seq.; Paleontological Resources Preservation

21 Act, 16 U.S.C. § 470aaa et seq.; Federal Cave Resources Protection Act of 1988, 22 16 U.S.C. § 4301 et seq.; National Trails System Act, 16 U.S.C. § 1241 et seq.; 23 Safe Drinking Water Act, 42 U.S.C. § 300f et seq.; Noise Control Act, 42 U.S.C.

24 § 4901 et seq.; Solid Waste Disposal Act, as amended by the Resource 25 Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., and the Comprehensive 26 Environmental Response, Compensation and Liability Act (Superfund), 42 U.S.C.

27 § 9601 et seq.; Archaeological and Historic Preservation Act, 54 U.S.C. § 320301 28 et seq.; Antiquities Act, 54 U.S.C. § 320301 et seq.; Historic Sites, Buildings, and

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1 Antiquities Act, 54 U.S.C. § 3201-320303 & 320101-320106; Wild and Scenic 2 Rivers Act, 16 U.S.C. § 1281 et seq.; Farmland Protection Policy Act, 7 U.S.C. § 3 4201 et seq.; Coastal Zone Management Act, 16 U.S.C. § 1451 et seq.; Wilderness 4 Act, 16 U.S.C. § 1131 et seq.; Federal Land Policy and Management Act, 43 5 U.S.C. § 1701 et seq.; National Wildlife Refuge System Administration Act and 6 National Wildlife Refuge System Improvement Act, 16 U.S.C. § 668dd-668ee;

7 National Fish and Wildlife Act of 1956, 16 U.S.C. § 742a et seq.; Fish and 8 Wildlife Coordination Act, 16 U.S.C. § 661 et seq.; Wild Horse and Burro Act, 9 16 U.S.C. § 1331 et seq.; Pub. L. 106-398; Otay Mountain Wilderness Act of 10 1999, Pub. L. 106-145; sections 102(29) and 103 of Title I of the California 11 Desert Protection Act, Pub. L. 103-433; Rivers and Harbors Act of 1899, 33

12 U.S.C. § 403; Eagle Protection Act, 16 U.S.C. § 668 et seq.; Native American 13 Graves Protection and Repatriation Act, 25 U.S.C. § 3001 et seq.; American 14 Indian Religious Freedom Act, 42 U.S.C. § 1996; and Religious Freedom

15 Restoration Act, 42 U.S.C. § 2000bb.

16

111. The August 2, 2017 determination identifies specific projects within

17 the broader “project area” as including both projects at issue in this litigation—the

18 replacement of “existing primary fencing”, as well as “prototype border wall . . .

19 near the eastern terminus of the existing secondary barrier.” 82 Fed. Reg. at 20 35,985.

21 G. May 2, 2017 DHS and CBP FOIA Requests: Border Wall Prototype

22

Project

23

112. In response to Federal Defendants’ failure and/or refusal to provide

24 the Center or public generally with information regarding NEPA and other

25 environmental compliance in relation to the border wall prototype project, on May

26 2, 2017, the Center submitted via email a FOIA request to DHS for the following

27 information:

28

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1

1. All National Environmental Policy Act, 42 U.S.C. §§ 4321-

2

4370h (“NEPA”) environmental impact statements, environmental assessments, categorical exclusions, and/or other

3

NEPA analysis prepared for “prototype” border wall construction as part of the border wall request for proposal

4

(“RFP”) process;

5

2. All other environmental analysis and/or compliance records prepared for prototype border wall construction, including but

6

not limited to analysis conducted pursuant to the Endangered Species Act, 16 U.S.C. §§ 1531-1544 (“ESA”), Clean Water

7

Act, 33 U.S.C. §§ 1251-1387 (“CWA”), and Coastal Zone Management Act, 16 U.S.C. 22 (“CZMA”); and

8

3. All inter- and intra-agency correspondence records

9

mentioning, referencing and/or including reference to compliance with environmental and/or all other applicable laws

10

relevant to prototype border wall construction.

11

113. In response, on May 2, 2017, DHS acknowledged the Center’s

12 request and assigned it tracking number 2017-HQFO-00717 (“the DHS FOIA

13 Request”). DHS also invoked a 10-working-day extension pursuant to 5 U.S.C. §

14 552(a)(6)(B)(i) due to DHS’s claim that the DHS FOIA Request “seeks

15 documents that will require a thorough and wide-ranging search.”

16

114. A determination on the DHS FOIA Request was due by June 14,

17 2017, which is 30 working days after DHS’s acknowledgement of the DHS FOIA

18 Request.

19

115. As of the date of the filing of this second amended complaint, which

20 is past the 30-working-day deadline, DHS has not requested additional time to

21 respond, provided any responsive records, or provided a determination in response

22 to the DHS FOIA Request.

23

116. None of FOIA’s nine exemptions to the statute’s disclosure mandate

24 apply to the records that are responsive to the DHS FOIA Request. Id. § 552(b).

25

117. On May 2, 2017, the Center submitted via email a FOIA request to

26 CBP for the following records:

27

1. All National Environmental Policy Act, 42 U.S.C. §§ 4321-

28

4370h (“NEPA”) environmental impact statements, environmental assessments, categorical exclusions, and/or other

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1

NEPA analysis prepared for “prototype” border wall construction as part of the border wall request for proposal

2

(“RFP”) process;

3

2. All other environmental analysis and/or compliance records prepared for prototype border wall construction, including but

4

not limited to analysis conducted pursuant to the Endangered Species Act, 16 U.S.C. §§ 1531-1544 (“ESA”), Clean Water

5

Act, 33 U.S.C. §§ 1251-1387 (“CWA”), and Coastal Zone

Management Act, 16 U.S.C. 22 (“CZMA”); and

6

7

3. All inter- and intra-agency correspondence records mentioning, referencing and/or including reference to

8

compliance with environmental and/or all other applicable laws relevant to prototype border wall construction.

9

118. In response, on May 2, 2017, CBP acknowledged the Center’s

10 request and assigned it the tracking number CBP-2017-053692 (“the CBP FOIA

11 Request”). On May 3, 2017, CBP sent the Center an automated notice stating that

12 the “average time to process a FOIA request related to ‘travel/border incidents’ is

13 a minimum of 3-6 months.” The notice failed to provide any completion date by

14 which CBP is to provide the requested records.

15

119. A determination on the CBP FOIA Request was due by May 31,

16 2017, which is 20 working days after CBP’s acknowledgement of the CBP FOIA

17 Request.

18

120. As of the date of the filing of this second amended complaint, which

19 is past the 20-working-day deadline, CBP has not requested additional time to

20 respond, provided any responsive records, or provided a determination in response

21 to the CBP FOIA Request.

22

121. None of FOIA’s nine exemptions to the statute’s disclosure mandate

23 apply to the records that are responsive to the CBP FOIA Request. Id. § 552(b).

24

25

26

27

28

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1

CLAIMS FOR RELIEF

2

FIRST CLAIM FOR RELIEF

3

(August 2, 2017 IUIRltrIaRVAirSeescVtioionla1t0io2n(cs) Determination)

4

(Facial Violation of IIRIRA Section 102(c))

5

122. Plaintiff incorporates by reference the allegations in all preceding

6 paragraphs.

7

123. IIRIRA section 102(c) provides the DHS Secretary with “the

8 authority to waive all legal requirements such Secretary, in such Secretary’s sole

9 discretion, determines necessary to ensure expeditious construction of the barriers

10 and roads under this section.”

11

124. The scope of the IIRIRA section 102(c) authority granted to the DHS

12 Secretary to waive laws “under this section” is limited to the specific border

13 barriers and roads required to be constructed pursuant to IIRIRA section 102(b).

14 IIRIRA section 102(a) provides general authority to DHS to construct border

15 barriers and roads in areas of high illegal entry into the United States, while

16 IIRIRA section 102(b) identifies the specific “construction of fencing and road

17 improvements along the border” necessary to “carry[] out subsection(a).”

18

125. At the time of the original 1996 enactment of IIRIRA, as well as its

19 2005 amendment by section 102 of the REAL ID Act, the specific border barrier

20 construction required under IIRIRA section 102(b) was limited to the San Diego

21 14-mile double and triple layer border fence.

22

126. Congress subsequently amended IIRIRA section 102(b) under the

23 2006 Secure Fence Act and 2008 Consolidated Appropriations Act. The 2006 24 Secure Fence Act amended IIRIRA section 102(b) to require DHS to construct 25 five specific segments of double-layered border fencing totaling approximately

26 850 miles. A year later, with the enactment of the 2008 Consolidated 27 Appropriations Act, Congress again amended IIRIRA section 102(b) to its current 28 version, which requires that DHS identify and construct 370 miles of border

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1 barriers by December 31, 2008, and that the agency construct border barriers 2 “along not less than 700 miles of the southwest border where fencing would be

3 most practical and effective.”

4

127. Congress has not amended the IIRIRA section 102(c) waiver since

5 the 2005 REAL ID Act amendments, and did not discuss or consider the scope of

6 the waiver during its deliberations or discuss how the existing 102(c) waiver

7 authority would apply to the expanded scope of IIRIRA section 102(b) under the 8 2006 Secure Fence Act and 2008 Consolidated Appropriations Act amendments.

9

128. Nonetheless, former DHS Secretary Chertoff invoked IIRIRA section

10 102(c) on five occasions to waive laws on the vast majority of the specific border 11 barriers required under IIRIRA section 102(b) pursuant to Secure Fence Act and

12 2008 Appropriations Act amendments.

13

129. Former Secretary Chertoff’s expansion of the IIRIRA section 102(c)

14 waiver authority beyond the San Diego double and triple layer fence proposal

15 that was included in the original IIRIRA section 102(b) was not contested in

16 previous litigation concerning the five waivers issued by the former Secretary. 17 No court addressed whether the IIRIRA section 102(c) waiver authority was

18 properly applied by former Secretary Chertoff to the greatly expanded scope of

19 IIRIRA section 102(b) under the 2005 REAL ID Act amendments and 2008 20 Consolidated Appropriations Act amendments.

21

130. Even presuming that the section 102(c) waiver authority is applicable

22 to the expansion of 102(b) specific border barrier mandates beyond the double 23 and triple layer San Diego fence, DHS has now fulfilled its requirements under

24 that subsection.

25

131. Specifically, DHS has met its duty to identify and construct 370

26 miles of border barriers within “priority areas” by December 31, 2008 as required

27 by IIRIRA section 102(b)(1)(B), as well as its duty to construct a total of not less

28 than 700 miles of border barriers as required by IIRIRA section 102(b)(1)(A).

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1

132. Because the scope of the IIRIRA section 102(c) waiver is limited to

2 the border barriers and road requirements specified by IIRIRA section 102(b), the

3 requirements of which have already been fulfilled, the purported waiver of

4 NEPA, the ESA, the APA, and more than 30 additional laws under Secretary 5 Kelly’s August 2, 2017 Determination pursuant to IIRIRA section 102(c) is an

6 unlawful ultra vires act subject to review by this Court, and the restrictions on 7 judicial review and appellate review under that subsection are inapplicable to that 8 determination.

9

133. Even in the event that the Court finds the IIRIRA section 102(c)

10 waiver authority is not limited to the border barriers and road requirements 11 specified by IIRIRA section 102(b), the purported waiver of laws under the

12 August 2, 2017 IIRIRA section 102(c) Determination is nonetheless an unlawful

13 ultra vires act subject to review by this Court for at least three additional reasons.

14

134. First, the IIRIRA section 102(c) waiver authority, by its plain

15 language, was intended to apply to the initial construction of border barriers, not

16 the border wall replacement or the border wall prototype projects at issue in this 17 litigation.

18

135. Second, the purported waiver of laws by former DHS Secretary Kelly

19 under the August 2, 2017 Determination does not contain any rationale 20 demonstrating that the “approximately fifteen mile segment” of the San Diego

21 border subject to the purported waiver is necessary to “deter illegal crossings in

22 areas of high illegal entry into the United States,” as required by the general 23 border barrier and road authorization at IIRIRA section 102(a). Indeed, the

24 Determination does not contain any Findings specific to the fifteen mile segment 25 of waived laws, but instead states in conclusory and circular fashion that the 26 overall San Diego Sector “remains an area of high illegal entry.” 82 Fed. Reg. at

27 35,985.

28

136. If the San Diego border region at issue in the purported waiver does

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1 indeed qualify as “an area of high illegal entry,” such a Finding would call the 2 entire DHS border fencing and prevention through deterrence strategy into

3 question, as DHS has expended more resources and constructed more intensive

4 border barriers in this region than any other along the U.S.-Mexico border, and 5 has already utilized the IIRIRA section 102(c) waiver authority to finish

6 construction on the existing San Diego double and triple layer border fence. 70

7 Fed. Reg. 55,622 (Sept. 22, 2005).

8

137. Third, the purported waiver of laws by former DHS Secretary Kelly

9 under the August 2, 2017 Determination cannot have been necessary to ensure

10 the “expeditious” construction of the border wall prototype project and border 11 wall replacement project at issue in this litigation.

12

138. The IIRIRA section 102(c) waiver authority was enacted in 1996, and

13 then significantly expanded by the 2005 REAL ID Act amendment. The IIRIRA 14 section 102(c) waiver authority has not been further amended by Congress in the

15 12 years since its 2005 consideration and enactment, despite the extensive

16 amendments to IIRIRA section 102(b) by the 2006 Secure Fence Act and 2008 17 Consolidated Appropriations Act.

18

139. The plain meaning of broadly allowing the waiver of any laws

19 determined by the DHS Secretary as necessary to ensure the “expeditious 20 construction” under IIRIRA section 102(c) was to provide the DHS Secretary

21 with the authority to waive laws in order to build border barriers as soon as 22 possible after the law’s enactment (i.e. the 2005 REAL ID Act amendment). 23 This interpretation is further supported by Congress’s subsequent establishment

24 of specific deadlines in its amendments to IIRIRA section 102(b) under the 2006

25 Secure Fence Act and 2008 Consolidated Appropriations Act; most notably, its 26 direction that at least 370 miles of border barriers be constructed by December

27 31, 2008, and its explicit termination of the Secretary’s authority to designate

28 “priority areas” for such construction by that same date. IIRIRA § 102(b)(2)(A)-

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1 (B).

2

140. The purported August 2, 2017 waiver of laws under former DHS

3 Secretary Kelly could only be lawful if the term “expeditious” was construed to

4 permit DHS to apply such waivers in perpetuity, long after the deadlines set by 5 the statute for the construction of any such barriers, and in relation to the

6 construction of additional barriers that have not been specifically directed by

7 Congress.

8

141. Due to fact that the border wall prototype project and border wall

9 replacement project are not subject to the scope of the IIRIRA section 102(c)

10 waiver authority, former DHS Secretary Kelly’s purported waiver of laws under 11 the August 2, 2017 Determination is an unlawful ultra vires act subject to review 12 by this Court, and the restrictions on judicial review and appellate review under

13 that subsection are inapplicable to that determination.

14

15

SECOND CLAIM FOR RELIEF Constitutional Violation

16

Violation of the Take Care Clause of the U.S. Constitution

17

Article II, Section 3 (August 2, 2017 IIRIRA Section 102(c) Determination)

18

19

142. Plaintiff incorporates by reference the allegations in all preceding

20 paragraphs.

21

143. Under IIRIRA section 102(c), and subject to the ultra vires

22 restrictions described in the First Claim for Relief, once the DHS Secretary

23 invokes the waiver authority, the “only cause or claim” that may be brought 24 arising from the waiver is one “alleging a violation of the Constitution of the 25 United States.” IIRIRA section 102(c) further provides that “[t]he district courts

26 of the United States shall have exclusive jurisdiction to hear all causes or claims 27 arising from any” such action, which “shall be filed not later than 60 days after 28 the date of action or decision” at issue.” IIRIRA § 102(c)(2)(A)-(C).

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1

144. Article II of the U.S. Constitution provides that “The executive

2 Power shall be vested in a President,” and that he or she “shall take Care that the

3 Laws be faithfully executed.” U.S. Constitution Article II, § 3.

4

145. Among the laws the Take Care Clause mandates be “faithfully

5 executed” are NEPA and the ESA, as well as the conditions and limitations of

6 IIRIRA section 102 itself. Among the conditions and limitations of IIRIRA

7 section 102 are the limitations of barrier construction to areas of “high illegal 8 entry” under subsection (a), the geographical and temporal restrictions for such

9 construction, along with the requirements for consultation with affected entities

10 under subsection (b), and the restriction on waiver authority under subsection (c) 11 to the “expeditious construction of the barriers and roads” otherwise authorized

12 by the statute.

13

146. DHS Secretary Kelly’s purported waiver of NEPA, the ESA, the

14 APA, and more than 30 additional laws under the August 2, 2017 Determination

15 failed to comply with the laws that the Executive Branch is required to “faithfully

16 execute.”

17

THIRD CLAIM FOR RELIEF

18

Constitutional Violation

19

Violation of the Separation of Powers of the U.S. Constitution (IIRIRA Section 102(c) and

20

August 2, 2017 IIRIRA Section 102(c) Determination)

21

22

147. Plaintiff incorporates by reference the allegations in all preceding

23 paragraphs.

24

148. Article I, Section 1 of the United States Constitution directs that

25 “[a]ll legislative Powers herein granted shall be vested in a Congress of the

26 United States.”

27

149. Article II, Section 1 of the Constitution directs that “[t]he executive

28 Power shall be vested in a President of the United States of America.”

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1

150. Under these constitutional provisions, Congress may not delegate

2 legislative authority to an executive branch agency, or in the case of IIRIRA

3 section 102(c), may not delegate legislative authority to an individual executive

4 branch official.

5

151. IIRIRA section 102(c) unconstitutionally delegates legislative powers

6 to the DHS Secretary, an executive branch official, and unconstitutionally

7 purports to exempt the Executive Branch from complying with its constitutional 8 obligation to faithfully execute the laws.

9

152. Former DHS Secretary John Kelly’s purported waiver of NEPA, the

10 ESA, the APA, and more than 30 other laws in relation to “border infrastructure 11 projects” within “an approximately fifteen mile segment” of the border within

12 San Diego, 82 Fed. Reg. 35,984 (Aug. 2, 2017) is an unconstitutional exercise of

13 legislative power by an executive branch official, and consequently violates the 14 U.S. Constitution’s separation of powers and non-delegation requirements.

15

16

FOURTH CLAIM FOR RELIEF Constitutional Violation

17

Violation of the Presentment Clause of the U.S. Constitution Article I, Section 7

18

(IIRIRA Section 102(c) and the August 2, 2017 IIRIRA Section 102(c) Determination)

19

20

153. Plaintiff incorporates by reference the allegations in all preceding

21 paragraphs.

22

154. Article I, § 7 of the Constitution provides that any federal statute

23 must pass both houses of Congress, and “before it become a Law, be presented to

24 the President of the United States: If he approve he shall sign it, but if not he shall

25 return it, with his Objections to that House it which it shall have originated, who

26 shall enter the Objections at large on their Journal, and proceed to reconsider it.”

27

155. The “[a]mendment and repeal of statutes, no less than enactment,”

28 must conform with the presentment and bicameralism requirements of Article I.

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1 INS v. Chadha, 462 U.S. 919, 954 (1983).

2

156. The August 2, 2017 Determination by former DHS Secretary Kelly

3 purported to waive NEPA, the ESA, the APA, and more than 30 other laws that

4 would otherwise apply to border infrastructure projects, including the border wall 5 prototype project and border wall replacement project at issue in this litigation.

6

157. The IIRIRA section 102(c) waiver authority and former DHS

7 Secretary Kelly’s August 2, 2017 Determination are unconstitutional 8 infringements upon the lawmaking procedures required under Article I, § 7 of the

9 Constitution.

10

11

FIFTH CLAIM FOR RELIEF NEPA Violations

12 (Border Wall Prototype Project and Border Wall Replacement Project)

13

158. Plaintiff incorporates by reference the allegations in all preceding

14 paragraphs.

15

159. Federal Defendants are required to prepare an environmental impact

16 statement (“EIS”) on major Federal actions “significantly affecting the quality of

17 the human environment.” Robertson v. Methow Valley Citizen Council, 490 U.S.

18 332, 348 (1989); 42 U.S.C. § 4332 (2)(C). A federal agency “bears the primary

19 responsibility to ensure that it complies with NEPA.” ‘Ilio’Ulaokalani Coalition

20 v. Rumsfeld, 464 F.3d 1083, 1092 (9th Cir. 2006). “When an agency decides to

21 proceed with an action in the absence of an EA or EIS, the agency must

22 adequately explain its decision.” Alaska Ctr. for Environment v. U.S. Forest

23 Service, 189 F.3d 851, 859 (9th Cir. 1999).

24

160. Federal Defendants have violated NEPA and NEPA’s implementing

25 regulations by authorizing the border wall prototype project and border wall

26 replacement project without first conducting the necessary environmental

27 analysis of the impacts of the projects in an EA or EIS in light of the potentially 28 significant impacts that each of the two projects will have.

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1

161. Federal Defendants have further violated NEPA and NEPA’s

2 implementing regulations by failing to initiate and complete NEPA at the earliest

3 possible time in the planning process.

4

162. Federal Defendants’ failure and/or refusal to conduct NEPA is

5 inconsistent with provisions of the DHS NEPA Manual, including provisions

6 requiring preparation of at least an EA when a proposed project may impact

7 important environmental resources, and directing that NEPA shall be applied as 8 early as possible in the planning process.

9

163. Federal Defendants have failed to provide any explanation or

10 reasoning for the failure to conduct any NEPA analysis for the border wall 11 prototype project or border wall replacement project. This lack of explanation

12 renders it impossible to determine if Federal Defendants have taken a “hard look”

13 at the potential environmental consequences of the border wall prototype project 14 or border wall replacement project, in violation of NEPA.

15

164. Federal Defendants’ failure and/or refusal to prepare NEPA analysis

16 for the border wall prototype project or border wall replacement project also 17 renders it impossible for the Agencies to avoid and/or mitigate environmental

18 impacts that would otherwise likely be identified through the NEPA process, in

19 violation of NEPA.

20

165. NEPA requires that the Agencies involve the public in preparing and

21 considering environmental documents that implement the Act. 40 C.F.R. §

22 1506.6 (1978); id. § 1506.6(b)(1) (requiring federal agencies to “[p]rovide public 23 notice of NEPA-related hearings, public meetings, and the availability of

24 environmental documents so as to inform those persons and agencies who may be

25 interested or affected”).

26

166. Federal Defendants have utterly failed and/or refused to involve the

27 public in its decision-making processes for the border wall prototype project and

28 border wall replacement project. Federal Defendants’ failure to provide for any

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1 public participation in relation to their approval of the border wall prototype 2 project and border wall replacement project violates NEPA and its implementing

3 regulations.

4

167. The border wall prototype project and border wall replacement

5 project decisions are therefore arbitrary and capricious, an abuse of discretion,

6 not in accordance with law, and without observance of procedure required by

7 law, and are subject to judicial review pursuant to the APA, 5 U.S.C. §§ 702– 8 704.

9

10

SIXTH CLAIM FOR RELIEF ESA Violations

11

(Border Wall Prototype Project and Border Wall Replacement Project)

12

13

168. Plaintiff incorporates by reference the allegations in all preceding

14 paragraphs.

15

169. Section 7(a)(2) of the ESA requires that “[e]ach Federal agency shall,

16 in consultation with . . . [FWS], insure that any action authorized, funded, or

17 carried out by such agency . . . is not likely to jeopardize the continued existence

18 of any endangered species or threatened species or result in the destruction or

19 adverse modification of [critical habitat].” Id. § 1536(a)(2).

20

170. FWS’s regulations define an agency “action” to mean “all activities

21 or programs of any kind authorized, funded, or carried out, in whole or in part, by

22 Federal agencies.” 50 C.F.R. § 402.02.

23

171. The border wall prototype project and border wall replacement

24 projects directly, indirectly, and cumulatively impact numerous species listed as

25 threatened or endangered under the ESA, as well as designated critical habitat for

26 many of those species.

27

172. Despite the presence of many listed species, the documented impacts

28 of DHS border barrier and road construction on many of these species, and the

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1 significant number of species listings and critical habitat designations in the 2 borderlands region, Federal Defendants have failed to initiate, reinitiate, or

3 complete consultation with FWS in order to ensure that the border wall prototype

4 project and border wall replacement project do not jeopardize the continued 5 existence of any listed species or adversely modify or destroy the designated

6 critical habitat for any of those species, in violation of Section 7(a)(2). 16 U.S.C.

7 § 1536(a)(2).

8

173. Federal Defendants have also failed to take any affirmative action to

9 conserve the many threatened or endangered species impacted by the border wall

10 prototype project and border wall replacement project, in violation of Section 11 7(a)(1) of the ESA. 16 U.S.C. § 1536(a)(1).

12

SEVENTH CLAIM FOR RELIEF

13

FOIA Violations

14

May 2, 2017 FOIA Requests to DHS (2017-HQFO-00717) and CBP (CBP-2017-053692)

15

16

174. The Center re-alleges and incorporates by reference the allegations

17 made in all preceding paragraphs.

18

175. The Agencies failed to comply with the mandates of FOIA

19 consequent to each Agency’s failure and refusal to: (1) search for and disclose

20 records that are responsive to the respective FOIA requests; (2) make a timely

21 and lawful determination on the respective FOIA requests; (3) conduct a search

22 that is reasonably calculated to locate all records that are responsive to the

23 respective FOIA requests; (4) provide Plaintiff with records that are responsive to 24 the respective FOIA requests that may not be withheld pursuant to any of FOIA’s 25 narrowly construed exemptions to mandatory disclosure; and (5) provide Plaintiff

26 with reasonably segregable portions of records responsive to the respective FOIA 27 requests which contains any material that may be lawfully withheld under an 28 exemption(s).

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1

176. Plaintiff has a statutory right to a lawful final determination from the

2 Agencies on the FOIA requests in a manner that complies with FOIA. The

3 Agencies have violated Plaintiff’s rights in this regard by unlawfully delaying

4 their responses beyond the deadlines that FOIA mandates. 5 U.S.C. § 5 552(a)(6)(A)(i).

6

177. Based on the nature of Plaintiff’s organizational activities, it will

7 undoubtedly continue to employ FOIA’s disclosure provisions in record requests 8 to the Agencies in the foreseeable future.

9

178. Plaintiff’s organizational activities will be adversely affected if the

10 Agencies are allowed to continue violating FOIA’s provisions as they have in this 11 case.

12

179. Unless enjoined and made subject to a declaration of Plaintiff’s legal

13 rights by this Court, the Agencies will continue to violate Plaintiff’s rights to 14 receive public records under FOIA.

15

APA Violations

16

(In the Alternative to the FOIA Violations)

17

180. Plaintiff re-alleges and incorporates by reference the allegations

18 made in all preceding paragraphs.

19

181. The Agencies violated FOIA’s statutory mandates due to each

20 Agency’s failure and refusal to: (1) search for and disclose records that are

21 responsive to the respective FOIA requests; (2) make a timely and lawful 22 determination on the respective FOIA requests; (3) conduct a search that is

23 reasonably calculated to locate all records that are responsive to the respective

24 FOIA requests; (4) provide Plaintiff with records that are responsive to the 25 respective FOIA requests that may not be withheld pursuant to any of FOIA’s

26 narrowly construed exemptions to mandatory disclosure; and (5) provide Plaintiff

27 with reasonably segregable portions of records responsive to the respective FOIA 28 requests which contains any material that may be lawfully withheld under an

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1 exemption(s). By repeatedly violating FOIA’s statutory mandates, the Agencies’ 2 actions are arbitrary, capricious, an abuse of discretion, or not in accordance with

3 the law and therefore actionable pursuant to the APA, 5 U.S.C. § 706(2)(A).

4 Alternatively, the Agencies’ failures constitute agency action unreasonably 5 delayed and therefore actionable pursuant to the APA, 5 U.S.C. § 706(1).

6

182. As alleged above, the Agencies’ failure to comply with the mandates

7 of FOIA has injured Plaintiff’s interests in public oversight of governmental 8 operations and is in violation of each Agency’s statutory duties under the APA.

9

183. Plaintiff has suffered a legal wrong as a result of the Agencies’

10 failure to comply with the mandates of FOIA. As alleged above, the Agencies 11 violated their statutory duties under the APA and injured Plaintiff’s interests in

12 public oversight of governmental operations.

13

184. Plaintiff has no other adequate remedy at law to redress the violations

14 noted above.

15

185. Plaintiff is entitled to judicial review under the APA, 5 U.S.C. § 702.

16

PRAYER FOR RELIEF

17

WHEREFORE, Plaintiff Center for Biological Diversity prays that this

18 Court:

19

1. Declare that Former DHS Secretary Kelly and Federal Defendants

20 lacked the authority under IIRIRA section 102(c) to waive NEPA, the ESA, the

21 APA, and other laws in the August 2, 2017 Determination Pursuant to Section

22 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996,

23 As Amended, 82 Fed. Reg. 35,984.

24

2. Declare that the purported waiver pursuant to IIRIRA section 102(c)

25 of NEPA, the ESA, the APA, and other laws in the August 2, 2017 Determination 26 Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant 27 Responsibility Act of 1996, As Amended, 82 Fed. Reg. 35,984, violates the U.S. 28 Constitution’s Take Care Clause.

Second Amended Complaint Page 46

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1

3. Declare that the purported waiver pursuant to IIRIRA section 102(c)

2 of NEPA, the ESA, the APA, and other laws in the August 2, 2017 Determination

3 Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant

4 Responsibility Act of 1996, As Amended, 82 Fed. Reg. 35,984, violates the U.S.

5 Constitution’s fundamental Separation of Powers principles.

6

4. Declare that the purported waiver pursuant to IIRIRA section 102(c)

7 of NEPA, the ESA, the APA, and other laws in the August 2, 2017 Determination

8 Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant

9 Responsibility Act of 1996, As Amended, 82 Fed. Reg. 35,984, violates the U.S.

10 Constitution’s Presentment Clause.

11

5. Set aside and declare null and void former DHS Secretary Kelly’s

12 purported waiver pursuant to IIRIRA section 102(c) of NEPA, the ESA, the APA,

13 and other laws in the August 2, 2017 Determination Pursuant to Section 102 of

14 the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, As

15 Amended, 82 Fed. Reg. 35,984, due to the ultra vires nature of that Determination.

16

6. Set aside and declare null and void the waiver of laws authority

17 contained in IIRIRA section 102(c) due to its constitutional infirmities.

18

7. Declare that Federal Defendants have violated NEPA and its

19 implementing regulations with respect to the border wall prototype project and/or 20 the border wall replacement project by, inter alia, failing to conduct any NEPA 21 analysis, by failing to provide any opportunity for public participation, and by

22 failing to take a “hard look” at the potential environmental impacts of the border 23 wall prototype project and/or border wall replacement project.

24

8. Declare that Federal Defendants violated the ESA by failing to

25 initiate or complete ESA section 7(a)(2) consultation with FWS in order to ensure 26 that the border wall prototype project and border wall replacement project do not

27 jeopardize the continued existence of any listed species or adversely modify or

28 destroy the designated critical habitat for those species.

Second Amended Complaint Page 47

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1

9. Declare that Federal Defendants violated the ESA by failing to take

2 any affirmative action to conserve threatened or endangered species impacted by

3 the border wall prototype project and border wall replacement project, in violation

4 of section 7(a)(1) of the ESA.

5

10. Enjoin Federal Defendants from implementing the border wall

6 prototype project or border wall replacement project, until and unless Federal

7 Defendants comply with NEPA, the ESA, and the implementing regulations for 8 those laws.

9

11. Declare that Federal Defendants unlawfully failed to timely make

10 determinations on the FOIA Requests, failed to properly apply FOIA exemptions, 11 failed to undertake a search for and disclose to Plaintiff all records that are

12 responsive to the FOIA Requests, and failed to provide Plaintiff with reasonably

13 segregable portions of records which may be lawfully subject to a FOIA 14 exemption, and Order Federal Defendants to conduct searches that are reasonably

15 calculated to locate all records responsive to the FOIA Requests, with the cut-off

16 date for such searches being the date that the searches are conducted, and to 17 provide Plaintiff without charge all responsive records and reasonably segregable

18 portions of lawfully exempt records sought in this action by a reasonable date

19 certain.

20

12. Retain jurisdiction in this action to ensure compliance with the

21 Court’s Orders.

22

13. Award Plaintiff its reasonable costs of litigation, including

23 reasonable attorneys’ fees and costs, pursuant to the Equal Access to Justice Act,

24 28 U.S.C. § 2412, and/or FOIA 5 U.S.C. § 552(a)(4)(E), and/or other authority;

25 and

26

14. Grant such other and further relief as the Court may deem just and

27 proper.

28

Second Amended Complaint Page 48

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1 DATED: September 6, 2017 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Second Amended Complaint Page 49

Respectfully submitted,
s/ Brian Segee Brian Segee (Bar No. 200795) Center for Biological Diversity 111 W. Topa Topa Street Ojai, CA 93023 T: (805) 750-8852 bsegee@biologicaldiversity.org Brendan Cummings (Bar No. 193952) Anchun Jean Su (Bar No. 285167) Center for Biological Diversity 1212 Broadway, Suite 800 Oakland, CA 94612 T: (510) 844-7100; F: (510) 844-7150 bcummings@biologicaldiversity.org jsu@biologicaldiversity.org John Peter Rose (Bar No. 285819) Center for Biological Diversity 660 South Figueroa Street, Suite 1000 Los Angeles, CA 90017 T: (213) 785-5400 jrose@biologicaldiversity.org
Attorneys for Plaintiff
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1

CERTIFICATE OF SERVICE

2 I hereby certify that on September 6, 2017, I electronically filed Plaintiff’s Second

3 Amended Complaint for Declaratory and Injunctive relief with the Clerk of the Court

4 using the CM/ECF system, which will send notification of such to the attorneys of

5 record.

6

7

s/ Brian Segee

8

Brian Segee

9

10

11

12

13

14

15

16

17

18

19

20

21

22

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26

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28

17cv01215

 
 Case 3:17-cv-01215-GPC-WVG Document 18-1 Filed 10/06/17 PageID.151 Page 1 of 56

1 CHAD A. READLER

Acting Assistant Attorney General

2 Civil Division

3

JOHN R. TYLER Assistant Branch Director

4 GALEN N. THORP

Senior Counsel

5 VA State Bar No. 75517

6

950 Pennsylvania Avenue NW Washington, DC 20530

7

Tel: (202) 514-4781 Fax: (202) 616-8460

8 Email: galen.thorp@usdoj.gov

9 ALANA W. ROBINSON

10

Acting United States Attorney REBECCA G. CHURCH

11 Assistant U.S. Attorney Cal. State Bar No. 259652

12 Office of the U.S. Attorney

880 Front Street, Room 6293 13 San Diego, CA 92101-8893

14

Tel: (619) 546-7721 Fax: (619) 546-7751

15 Email: rebecca.church@usdoj.gov

16 Attorneys for Defendants

17

UNITED STATES DISTRICT COURT

18

SOUTHERN DISTRICT OF CALIFORNIA

19 CENTER FOR BIOLIGICAL 20 DIVERSITY,

21

Plaintiff,

22

23

v.

Case No. 17cv1215 GPC (WVG)
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS SECOND AMENDED COMPLAINT

24 U.S. DEPARTMENT OF 25 HOMELAND SECURITY, et al.,

26

Defendants.

Date: December 15, 2017 Time: 1:30 pm Courtroom: 2D Hon. Gonzalo P. Curiel

27

28

Case 3:17-cv-01215-GPC-WVG Document 18-1 Filed 10/06/17 PageID.152 Page 2 of 56

1

TABLE OF CONTENTS

2 TABLE OF CONTENTS ................................................................................... ii
3
4 TABLE OF AUTHORITIES ............................................................................. iv

5 TABLE OF EXHIBITS .................................................................................... xii

6 INTRODUCTION .............................................................................................. 1

7 BACKGROUND ................................................................................................ 2

8 I. Statutory Framework .................................................................................... 2
9

10

II. The Secretary’s Exercise of Waiver Authority ............................................ 5

11 III. Procedural History ........................................................................................ 7

12 ARGUMENT ...................................................................................................... 8

13 I. Standard of Review ...................................................................................... 8

14

II. Plaintiff’s Non-Constitutional Claims Regarding the Waiver Decision

15

Must be Dismissed for Lack of Jurisdiction (Count 1) ................................ 9

16

A. The Court Lacks Jurisdiction to Consider Plaintiff’s Non-

17

Constitutional Claims Regarding the Waiver Decision ......................... 9

18

B. To the Extent the Court Conducts Ultra Vires Review, It Must

Conclude that the Secretary Did Not Exceed His Statutory

19

Authority............................................................................................... 15

20

1. Plaintiff cannot show that § 102(c)’s waiver authority

21

excludes actions and decisions under § 102(a)’s general mandate .......................................................................................... 17

22

2. Plaintiff cannot show that § 102(a) and (c) unambiguously

23

apply only to the “initial construction of border barriers,” not

their enhancement .......................................................................... 22

24

3. Plaintiff cannot show that § 102(c) unambiguously requires

25

that the Federal Register notice of a waiver determination

26

include a detailed “rationale” ......................................................... 25

27

4. Plaintiff cannot show that § 102(c) waiver authority has

unambiguously expired .................................................................. 28

28

Defs.’ Motion to Dismiss

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1 III. Plaintiff’s Constitutional Claims Fail to State a Claim .............................. 30

2

A. The Secretary’s Action Does Not Violate Article II § 3 (Count 2) ..... 30

3

B. The Secretary’s Action Does Not Violate the Nondelegation

4

Doctrine (Count 3)................................................................................ 33

5

C. The Secretary’s Action Does Not Violate Article I § 7 (Count 4)....... 36

6 IV. Plaintiff’s NEPA and ESA Claims Must Be Dismissed (Counts 5-6) ....... 38

7 V. Plaintiff’s APA Claim Must Be Dismissed Because the FOIA

8

Provides an Adequate Remedy (Count 7, in part)...................................... 40

9 CONCLUSION................................................................................................. 40

10 APPENDIX: 8 U.S.C. § 1103 Note (in relevant part) ........................................ 1 11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Defs.’ Motion to Dismiss

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1

TABLE OF AUTHORITIES

2 Cases

3 Acree v. Republic of Iraq, 4 370 F.3d 41 (D.C. Cir. 2004) ................................................................................. 37

5 Allen v. Wright, 468 U.S. 737 (1984) ............................................................................................... 32
6

7

Am. Airlines, Inc. v. Herman, 176 F.3d 283 (5th Cir. 1999) ...................................................................... 16, 17, 26

8 Am. Soc’y of Anesthesiologists v. Shalala, 9 90 F. Supp. 2d 973 (N.D. Ill. 2000) ....................................................................... 13

10 Animal Legal Defense Fund v. U.S. Dep’t of Agriculture, 11 No. 17-949, 2017 WL 3478848 (N.D. Cal. Aug. 14, 2017) .................................. 40

12 Aragon-Salazar v. Holder,

769 F.3d 699 (9th Cir. 2014) ...................................................................... 13-14, 21 13

14

Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378 (2015) ........................................................................................... 31

15 Ashcroft v. Iqbal,

16 556 U.S. 662 (2009) ................................................................................................. 8

17 Barnhart v. Peabody Coal Co., 18 537 U.S. 149 (2003) ......................................................................................... 18-19

19 Bd. of Governors of Fed. Reserve Sys. v. MCorp Fin. Inc.

502 U.S. 32 (1991) ........................................................................................... 12, 13 20

21

Bedgood v. Mabus, No. 15-454, 2015 WL 3647933 (S.D. Cal. June 8, 2015) ...................................... 40

22 Bowen v. Massachusetts,
23 487 U.S. 879 (1988) ............................................................................................... 40

24 Bowen v. Michigan Acad. of Family Physicians, 25 476 U.S. 667 (1986) ................................................................................................. 9

26 Brem–Air Disposal v. Cohen, 27 156 F.3d 1002 (9th Cir. 1998) ................................................................................ 40

28

Defs.’ Motion to Dismiss

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Case 3:17-cv-01215-GPC-WVG Document 18-1 Filed 10/06/17 PageID.155 Page 5 of 56

1 Clinton v. City of New York, 524 U.S. 417 (1998) ......................................................................................... 36, 38
2

3

Clinton v. Jones, 520 U.S. 681 (1997) ............................................................................................... 31

4 Columbia Riverkeeper v. U.S. Coast Guard,
5 761 F.3d 1084 (9th Cir. 2014) .......................................................................... 10, 23

6 County of El Paso v. Chertoff, 7 No. 08-196, 2008 WL 4372693 (W.D. Tex. 2008) .......................... 5, 15, 34, 35, 36

8 Ctr. for Biological Diversity v. Bureau of Land Mgmt., 9 833 F.3d 1136 (9th Cir. 2016) ................................................................................ 25 10 Dalton v. Specter,
511 U.S. 462 (1994) ......................................................................................... 32, 33 11
De Carreon v. Mukasey, 12 No. 08-0501, 2008 WL 11336922 (S.D. Cal. Oct. 28, 2008) ................................ 11
13 Defenders of Wildlife v. Chertoff, 14 527 F. Supp. 2d 119 (D.D.C. 2007) ................................................................ passim

15 Duldulao v. INS, 16 90 F.3d 396 (9th Cir. 1996) ...................................................................................... 9
17 Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546 (2005) ......................................................................................... 9
18 Franklin v. Massachusetts,
19 505 U.S. 788 (1992) ................................................................................... 31-32, 32
20 Free Enterprise Fund v. Public Co. Accounting Bd., 21 561 U.S. 477 (2010) ................................................................................... 30, 31, 32

22 Friends of Animals v. Ashe, 23 No. 13-1607, 2014 WL 2812313 (D.D.C. 2014) ................................................... 39

24 FTC v. Tarriff, 584 F.3d 1088 (D.C. Cir. 2009) ............................................................................. 19
25
Great Old Broads For Wilderness v. Kempthorne, 26 452 F. Supp. 2d 71 (D.D.C. 2006) ......................................................................... 26

27 Greater Detroit Resource Recovery Auth. v. EPA, 28 916 F.2d 317 (6th Cir. 1990) ............................................................................ 16, 17

Defs.’ Motion to Dismiss

v

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Case 3:17-cv-01215-GPC-WVG Document 18-1 Filed 10/06/17 PageID.156 Page 6 of 56

1 Griffith v. FLRA, 842 F.2d 487 (D.C. Cir. 1988) ......................................................................... 16, 23
2

3

Gunn v. Minton, 568 U.S. 251 (2013) ................................................................................................. 9

4 Heckler v. Chaney,
5 470 US 821 (1985) ................................................................................................. 31

6 Herrera-Castillo v. Holder, 7 573 F.3d 1004 (10th Cir. 2009) .............................................................................. 11

8 Hooks v. Ktsap Tenant Support Servs., Inc., 9 816 F.3d 550 (9th Cir. 2016) .................................................................................. 20 10 Horizon Air Indus., Inc. v. Nat’l Mediation Bd.,
232 F.3d 1126 (9th Cir. 2000) ................................................................................ 16 11
In re Nat’l Security Agency Telecomm. Records Litig., 12 671 F.3d 881 (9th Cir. 2011) ................................................................ 33-34, 35, 37
13 In re Tourism Assessment Fee Litig., 14 No. 08-1796, 2009 WL 10185458 (S.D. Cal. Feb. 19, 2009) .................................. 9

15 INS v. Chada, 16 462 U.S. 919 (1983) ............................................................................................... 36
17 J.W. Hampton, Jr. Co. v. United States, 276 U.S. 394 (1928) ............................................................................................... 34
18 Johnson v. Riverside Healthcare Sys., LP,
19 534 F.3d 1116 (9th Cir. 2008) .................................................................................. 8
20 Kern Cnty. Farm Bureau v. Badgley, 21 No. 02-5376, 2002 WL 34236869 (E.D. Cal. Oct. 10, 2002) ................................ 39

22 Kerr v. Jewell, 23 836 F.3d 1048 (9th Cir. 2016) ................................................................................ 12

24 Knauff v. Shaughnessy, 338 U.S. 537 (1950) ............................................................................................... 35
25
Leedom v. Kyne, 26 358 U.S. 184 (1958) ............................................................................................... 12

27 Lion Raisins, Inc. v. U.S. Dep’t of Agriculture, 28 636 F. Supp. 2d 1081 (E.D. Cal. 2009) .................................................................. 40

Defs.’ Motion to Dismiss

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Case 3:17-cv-01215-GPC-WVG Document 18-1 Filed 10/06/17 PageID.157 Page 7 of 56

1 Loving v. United States, 517 U.S. 748 (1996) ............................................................................................... 35
2

3

Lugo-Miramontes v. Holder, 464 F. App’x 639 (9th Cir. 2011) ........................................................................... 11

4 Lujan v. Defenders of Wildlife,
5 504 U.S. 555 (1992) ............................................................................................... 32

6 Metlzer Inv. GMBH v. Corinthian Colls., Inc., 7 540 F.3d 1049 (9th Cir. 2008) .............................................................................. 8-9

8 Mississippi v. Johnson, 9 71 U.S. 475 (1867) ........................................................................................... 31, 32 10 Mistretta v. United States,
488 U.S. 361 (1989) ............................................................................................... 34 11
Morrison v. Olson, 12 487 U.S. 654 (1988) ......................................................................................... 30-31
13 Nixon v. Fitzgerald, 14 457 U.S. 731 (1982) ............................................................................................... 32

15 Nixon v. United States, 16 506 U.S. 224 (1993) ............................................................................................... 31
17 NLRB v. United Food & Commercial Workers Union, 484 U.S. 112, 130-133 (1988) ................................................................................ 15
18 Northstar Financial Advisors, Inc. v. Schwab Investments,
19 615 F.3d 1106 (9th Cir. 2010) ................................................................................ 21
20 Nw. Forest Resource Council v. Glickman, 21 82 F.3d 825 (9th Cir. 1996) .................................................................................... 21

22 Nyunt v. Broad. Bd. of Governors, 23 589 F.3d 445 (D.C. Cir. 2009) ................................................................... 13, 16-17

24 Osgood v. Main Street Marketing, LLC, No. 16-2415, 2017 WL 131829 ............................................................................... 8
25
Otsuka Pharm. Co. v. Burwell, 26 No. 15-852, 2015 WL 1962240 (D. Md. Apr. 29, 2015) ....................................... 19

27 Pacific Maritime Ass’n v. NLRB, 28 827 F.3d 1203 (9th Cir. 2016) ................................................................................ 16

Defs.’ Motion to Dismiss

vii

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30

Case 3:17-cv-01215-GPC-WVG Document 18-1 Filed 10/06/17 PageID.158 Page 8 of 56

1 Pacific Mut. Life Ins. Co. v. Am. Guaranty Life Ins. Co., 722 F.2d 1498 (9th Cir. 1984) ................................................................................ 20
2

3

Papai v. Harbor Tug and Barge Co., 67 F.3d 203 (9th Cir. 1995) ...................................................................................... 9

4 Parks v. Wells Fargo Bank, N.A.,
5 No. 3:15-2558, 2016 WL 411674 (S.D. Cal. Feb. 3, 2016) ..................................... 9

6 Pinnacle Armor, Inc. v. United States, 7 648 F.3d 708 (9th Cir. 2011) ............................................................................ 12-13

8 Pistor v. Garcia, 9 791 F.3d 1104 (9th Cir. 2015) .................................................................................. 8 10 Planned Parenthood of Idaho, Inc. v. Wasden,
376 F.3d 908 (9th Cir. 2004) .................................................................................. 20 11
Printz v. United States, 12 521 U.S. 898 (1997) ............................................................................................... 31
13 Santiago Salgado v. Garcia, 14 384 F.3d 769 (9th Cir. 2004) .................................................................................. 14

15 Save Our Heritage v. Gonzalez, 16 533 F. Supp. 2d 58 (D.D.C. 2008) ................................................... 5, 15, 19, 34, 35
17 Sidney Coal Co. v. SSA, 427 F.3d 336 (6th Cir. 2005) .................................................................................. 19
18 Sierra Club v. Ashcroft,
19 No. 04-272, 2005 U.S. Dist. LEXIS 44244 (S.D. Cal. Dec. 13, 2005) .......... passim
20 Smith v. Fed. Reserve Bank of N.Y., 21 280 F. Supp. 2d 314 (S.D.N.Y. 2003) .................................................................... 38

22 Spencer Enterprises, Inc. v. United States, 23 345 F.3d 683 (9th Cir. 2003) ............................................................................ 10, 26

24 Staacke v. U.S. Sec’y of Labor, 841 F.2d 278 (9th Cir. 1988) ...................................................................... 16, 17, 26
25
Student Loan Fund of Idaho, Inc. v. U.S. Dep’t of Educ., 26 272 F.3d 1155 (9th Cir. 2001) ................................................................................ 22

27 Sw. Ctr. for Biological Diversity v. U.S. Bureau of Reclamation, 28 143 F.3d 515 (9th Cir. 1998) .................................................................................. 39

Defs.’ Motion to Dismiss

viii

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Case 3:17-cv-01215-GPC-WVG Document 18-1 Filed 10/06/17 PageID.159 Page 9 of 56

1 Texas Border Coal. v. Napolitano, 614 F. Supp. 2d 54, (D.D.C. 2009) ........................................................................ 30
2

3

Touby v. United States, 500 U.S. 160 (1991) ............................................................................................... 35

4 United States v. Bozarov,
5 974 F.2d 1037 (9th Cir. 1992) ................................................................................ 34

6 United States v. Scampini, 7 911 F.2d 350 (9th Cir. 1990) .................................................................................. 36

8 United States v. Spiegel, 9 995 F.2d 138 (9th Cir. 1993) ............................................................................ 13, 15 10 United States v. Walt Disney Co.,
No. 12-8036, 2013 WL 12131741 (C.D. Cal. Aug. 9, 2013) ................................... 9 11
Upper Deck Int’l B.V. v. Upper Deck Co., 12 No. 11-1741, 2012 WL 1713453 (S.D. Cal. May 15, 2012) .................................. 11
13 Washam v. Rabine, 14 No. 3:13-2433, 2013 WL 1849233 (S.D. Cal. May 1, 2013) .................................. 8

15 Whitman v. Am. Trucking Ass’ns, 16 531 U.S. 457 (2001) ............................................................................................... 35

17 Constitutional Provisions

18 Article I, § 7 .......................................................................................................... 36-38
19 Article II, § 3 ......................................................................................................... 30-33
20 Article III.................................................................................................................15, 32
21
22 Statutes & Regulations

23 5 U.S.C. § 552 ...................................................................................................... 1,7, 40

24 5 U.S.C. § 701 ............................................................................................................. 26

25 5 U.S.C. § 704 ............................................................................................................. 40

26 6 U.S.C. § 202 ............................................................................................................... 2
27 8 U.S.C. § 1182 ........................................................................................................... 10 8 U.S.C. § 1226a ......................................................................................................... 11
28

Defs.’ Motion to Dismiss

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Case 3:17-cv-01215-GPC-WVG Document 18-1 Filed 10/06/17 PageID.160 Page 10 of 56

1 8 U.S.C. § 1443 ........................................................................................................... 19
2 8 U.S.C. § 1701 ............................................................................................................. 2 3 8 U.S.C § 1103 .............................................................................................................. 2
12 U.S.C. § 1818 ......................................................................................................... 13 4
12 U.S.C. § 1919 ......................................................................................................... 13 5 16 U.S.C. § 1531, et seq. ................................................................ 4, 6-7, 29, 33, 37-38 6 16 U.S.C. § 1540 ......................................................................................................... 39
7 22 U.S.C. § 6450 ......................................................................................................... 11

8 25 U.S.C. § 3406 ......................................................................................................... 38

9 28 U.S.C. § 1346 ................................................................................................... 11-12
10 28 U.S.C. § 1359 ......................................................................................................... 11 33 U.S.C. § 2326 ......................................................................................................... 19
11 42 U.S.C. § 4321, et seq. .................................................................... 4-7, 29, 33, 37-38
12 42 U.S.C. § 18352 ....................................................................................................... 19 13 50 U.S.C. § 1885a ....................................................................................................... 37
14 Pub. L. No. 104-208, Div. C, Title I § 102, 110 Stat. 3009-554 (Sept. 30, 1996) passim

15 Pub. L. No. 105-292, § 410, 112 Stat. 2787 (Oct. 27, 1998) ....................................... 11

16 Pub. L. No. 107-296, 116 Stat. 2135 (Nov. 25, 2002)................................................ 2-3
17 Pub. L. No. 109-13, Div. B, Title I §102, 119 Stat. 231 (May 11, 2005) ..........2, 21, 33 18 Pub. L. No. 109-171, § 5107(a)(2), 120 Stat. 42 (Feb. 6, 2006) .................................. 38
Pub. L. No. 109-367, § 3, 120 Stat. 2638 (Oct. 26, 2006) ................................... 2-3, 27 19
Pub. L. No. 110-161, Div. E, Title V § 564, 121 Stat. 2090 (Dec. 26, 2007) ........... 2-3 20 Pub. L. No. 114-4, 129 Stat. 39, 42 (Mar. 4, 2015) ..................................................... 28
21 Pub. L. No. 115-31, Div. F, Title VI, 131 Stat. 135 (May 5, 2017) ............................ 28

22 70 Fed. Reg. 55622 (Sept. 22, 2005) ...................................................................... 5, 18

23 72 Fed. Reg. 2535 (Jan. 19, 2007) ................................................................................ 5

24 72 Fed. Reg. 60870 (Oct. 26, 2007) .............................................................................. 5
25 73 Fed. Reg. 19077 (Apr. 8, 2008) ............................................................................... 5 73 Fed. Reg. 19078 (Apr. 8, 2008) ............................................................................... 5
26 82 Fed. Reg. 8793 (Jan. 25, 2017) ................................................................................ 2
27 82 Fed. Reg. 35984 (Aug. 2, 2017) ...................................................................... passim
28 82 Fed. Reg. 42829 (Sept. 12, 2017) ............................................................................ 6

Defs.’ Motion to Dismiss

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1 Legislative Materials
2

3 H.R. Rep. 104-828 (Sept. 24, 1996) (Conf. Rep.) ....................................................4, 23 4 H.R. Rep. 109-72 (May 3, 2005) (Conf. Rep.) .........................3-5, 14-15, 21, 24-25, 29
5 H.R. 1268 (109th Cong.) (engrossed in House, Mar. 16, 2005).........................4, 14, 21

6 142 Cong. Rec. H11076 (Sept. 25, 1996) ..................................................................... 22

7 150 Cong. Rec. H8899 (Oct. 8, 2004) .......................................................................... 27

8 151 Cong. Rec. H453-459, 467, 471 (Feb. 9, 2005)......................................... 21-22, 28

9 151 Cong. Rec. H553-559 (Feb. 10, 2005).............................................4, 14, 22, 27, 29 151 Cong. Rec. E247 (Feb. 15, 2005) .......................................................................... 14
10 152 Cong. Rec. S9870 (Sept. 21, 2006)..................................................................24, 28
11 Walls & Waivers: Expedited Construction of the Southern Border Wall and

12 Collateral Impacts to Communities and the Environment: Joint Oversight

13

Field Hearing Before Subcommittees to H. Comm. on Natural Resources, 110th Cong. (2008) ..................................................................................7, 15, 25, 29

14 Cong. Research Serv., RL33659, Border Security: Barriers Along the U.S. Int’l

15 Border at 19 (Mar. 16, 2009)....................................................................................20

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

TABLE OF EXHIBITS

2

Congressional Documents

3

1. H.R. Rep. 104-828 (Sept. 24, 1996) (Conf. Rep.)

4

2. H.R. Rep. 109-72 (May 3, 2005) (Conf. Rep.)

5

3. H.R. 1268 (109th Cong.) (engrossed in House, Mar. 16, 2005)

6

4. 142 Cong. Rec. H11076 (Sept. 25, 1996)

7

5. 150 Cong. Rec. H8899 (Oct. 8, 2004)

6. 151 Cong. Rec. H453-459, 467, 471 (Feb. 9, 2005)

8

7. 151 Cong. Rec. H553-559 (Feb. 10, 2005)

9

8. 151 Cong. Rec. E243-47 (Feb. 15, 2005)

10

9. 152 Cong. Rec. S9870 (Sept. 21, 2006)

11

10. Walls & Waivers: Expedited Construction of the Southern Border Wall

12

and Collateral Impacts to Communities and the Environment: Joint

Oversight Field Hearing Before Subcommittees to H. Comm. on Natural

13

Resources, 110th Cong. (2008) (excerpts)

14

11. Cong. Research Serv., RL33659, Border Security: Barriers Along the

15

U.S. Int’l Border at 19 (Mar. 16, 2009)

16 Customs & Border Protection Documents

17

12. Solicitation No. HSBP1017R0022 (as amended, Apr. 1, 2017) (link)

18

(excerpts)

19

13. Solicitation No. HSBP1017R0023 (as amended, Apr. 1, 2017) (link)

(excerpts) 20

14. Memorandum, Construction and Evaluation of Border Wall Prototypes,

21

U.S. Border Patrol, San Diego Sector, California (Sept. 25, 2017)

22

15. Press Release, Construction Begin on Wall Prototypes (Sept. 26, 2017)

23

(link)

24

16. Press Release, CBP Awards Contract for “Other Materials” Border Wall Prototypes (Sept. 7, 2017) (link)

25

17. Press Release, CBP Awards Contracts for Border Wall Prototypes (Aug.

26

30, 2017) (link)

27

18. U.S. Border Patrol, Sector Profile – Fiscal Year 2016 (link)

28

19. CBP Finding of No Significant Impact for Infrastructure (Nov. 19, 2003)

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1

INTRODUCTION

2

Congress has repeatedly identified the construction of border infrastructure to

3 prevent illegal entry of people and contraband as a significant priority. In addition to

4 the Executive Branch’s inherent authority over immigration policy, foreign affairs, and

5 national security, Congress has called on the U.S. Department of Homeland Security

6 (“DHS”) to construct physical barriers and roads along the border to deter illegal

7 crossings in areas of high illegal entry. See Illegal Immigration Reform and Immigrant

8 Responsibility Act of 1996 (“IIRIRA” or “Act”), Pub. L. No. 104-208, Div. C, Title I

9 § 102, 110 Stat. 3009-554 (Sept. 30, 1996), as amended. In order to speed construction

10 of these border infrastructure projects, Congress gave the DHS Secretary specific

11 authority to waive any legal requirement necessary to ensure expeditious construction,

12 and strictly limited judicial review of such determinations—only constitutional

13 challenges are permitted and the only appellate review is a petition of certiorari to the

14 Supreme Court. The Act has been repeatedly upheld in the face of legal challenges.

15

In this suit, Plaintiff challenges DHS’s recent exercise of this waiver authority

16 for border infrastructure projects along a 15-mile stretch of the international border

17 south of San Diego that the DHS Secretary determined remains an area of high illegal

18 entry. Plaintiff’s constitutional claims are meritless, largely retreading theories rejected

19 by every court to consider the constitutionality of the statute. And its non-constitutional

20 challenges to the waiver determination are barred by the Act. Its challenges under the

21 environmental statutes have been mooted by the waiver determination, and its

22 Administrative Procedure Act (“APA”) claim must be dismissed because the Freedom

23 of Information Act (“FOIA”) provides an adequate remedy.1 Accordingly, the Court

24 should dismiss Counts 1-6 in full and Count 7 in part for lack of subject matter

25 jurisdiction and failure to state a claim upon which relief can be granted.

26

27 1 Defendants do not seek dismissal of Count 7 to the extent it asserts a claim under the FOIA, 5 U.S.C. § 552. That claim is based on two FOIA requests submitted in
28 May 2017, which are currently being processed by Defendants.

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1

BACKGROUND

2 I. STATUTORY FRAMEWORK

3

Among its responsibilities, DHS is responsible for border security and the

4 detection and prevention of illegal entry into the United States. See, e.g., 6 U.S.C.

5 § 202(a)(1)-(2). Congress has ordered DHS to achieve and maintain operational

6 control of the international land border. See Secure Fence Act of 2006, Public Law

7 109-367, § 2(a), 120 Stat. 2638 (Oct. 26, 2006) (8 U.S.C. § 1701 note). “Operational

8 control” means “prevention of all unlawful entries into the United States, including

9 entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and

10 other contraband.” Id. § 2(b). Consistent with that mandate, the President has

11 directed DHS to take immediate steps to prevent all unlawful entries into the United

12 States, including the immediate construction of physical infrastructure to prevent

13 illegal entry. See Exec. Order 13767 §§ 2(a), 4(a), 82 Fed. Reg. 8793 (Jan. 25, 2017).

14

Among the statutory authorities provided to DHS to carry out its border security

15 mission is the IIRIRA. See Pub. L. No. 104-208, Div. C, Title I § 102, 110 Stat. 3009-

16 554 (Sept. 30, 1996). Codified at 8 U.S.C § 1103 note (and included as an appendix

17 at the end of this memorandum), IIRIRA § 102 has been amended several times. See

18 Dep’t of Homeland Security Appropriations Act, 2008, Pub. L. No. 110-161, Div. E,

19 Title V § 564, 121 Stat. 2090 (Dec. 26, 2007); Secure Fence Act of 2006, Pub. L. No.

20 109-367, § 3, 120 Stat. 2638 (Oct. 26, 2006); REAL ID Act of 2005, Pub. L. No. 109-

21 13, Div. B, Title I §102, 119 Stat. 231, 302, 306 (May 11, 2005). The IIRIRA directs

22 the Secretary of Homeland Security to “take such actions as may be necessary to

23 install additional physical barriers and roads (including the removal of obstacles to

24 detection of illegal entrants) in the vicinity of the United States border to deter illegal

25 crossings in areas of high illegal entry into the United States.” Pub. L. No. 104-208,

26 Div. C., Title I § 102(a), as amended.2

27

28

2 In 1996, responsibility for border enforcement lay with the Attorney General. The Homeland Security Act of 2002, Pub. L. No. 107-296, created DHS and transferred

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1

In § 102(b), Congress provided certain requirements for implementing the

2 broad mandate laid out in § 102(a). These requirements have varied over the years.

3 For example, in 1996, Congress specified that, in “carrying out subsection (a), the

4 [agency] shall provide for the construction . . . of second and third fences, in addition

5 to the existing reinforced fence, and for roads between the fences” in a 14-mile section

6 near San Diego. Pub. L. No. 104-208, Div. C., Title I § 102(b)(1). In 2006, Congress

7 struck the reference to San Diego and required construction of “at least 2 layers of

8 reinforced fencing, [and] the installation of additional physical barriers, roads, lights,

9 cameras, and sensors” in five specified locations along the southern border, with

10 deadlines for certain of the projects. Pub. L. No. 109-367, § 3. In the most recent

11 amendment, Congress removed the specifications set out in 2006 and instead required

12 “construct[ion of] reinforced fencing along not less than 700 miles of the southwest

13 border” but gave the Secretary discretion to determine “where fencing would be most

14 practical and effective” with the goal “to gain operational control of the southwest

15 border.” Pub. L. No. 110-161, Div. E, Title V § 564; see also IIRIRA § 102(b)(1)(D)

16 (as amended) (stating that the Secretary is free to determine that the use or placement

17 of “fencing, physical barriers, roads, lighting, cameras, and sensors in a particular

18 location” is not “the most appropriate means to achieve and maintain operational

19 control over the international border” at that location).

20

Section 102(c) seeks to ensure expeditious construction pursuant to the mandate

21 laid out in § 102(a) in two ways. First, it permits waiver of legal impediments:

22

Notwithstanding any other provision of law, the Secretary of Homeland

Security shall have the authority to waive all legal requirements such

23

Secretary, in such Secretary's sole discretion, determines necessary to

24

ensure expeditious construction of the barriers and roads under this

section. Any such decision by the Secretary shall be effective upon

25

being published in the Federal Register.

26

27 border enforcement authority to it. In 2005, IIRIRA § 102 was amended to refer to
28 the DHS Secretary. See H.R. Rep. 109-72 at 171 (May 3, 2005) (Conf. Rep.).

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1 Id. § 102(c)(1). This provision had originally been limited to the Endangered Species

2 Act (“ESA”) and the National Environmental Policy Act (“NEPA”), see Pub. L. No.

3 104-208, Div. C, Title I § 102(c), but the REAL ID Act expanded it to its current

4 breadth. See H.R. Rep. 109-72, at 171-72 (May 3, 2005) (Conf. Rep.) (attached as Ex.

5 2) (explaining “Congress’ intent that the Secretary’s discretionary waiver authority

6 extends to any local, state or federal statute, regulation, or administrative order that

7 could impede expeditious construction of border security infrastructure”); see also

8 H.R. Rep. 104-828, at 200 (Sept. 24, 1996) (Conf. Rep.) (attached as Ex. 1)

9 (explaining that the original waiver of two environmental laws was intended “to

10 facilitate a uniform construction of necessary fences and roads”).

11

Second, § 102(c) provides for limited and streamlined judicial review of the

12 Secretary’s exercise of this waiver authority. Federal district courts have “exclusive

13 jurisdiction” to hear such claims, and the only “cause of action or claim” that may be

14 brought is one “alleging a violation of the Constitution of the United States” that is

15 filed within sixty days of the Secretary’s action. Id. § 102(c)(2)(A)-(B). The only

16 appellate review is a certiorari petition to the U.S. Supreme Court. Id. § 102(c)(2)(C).

17 This provision was adopted by the conference committee for the appropriations bill of

18 which the REAL ID Act was a part. The House bill would have entirely barred

19 judicial review, see 109th Cong., H.R. 1268, Div. B § 102 (engrossed in House, Mar.

20 16, 2005) (attached as Ex. 3), but some had expressed concern about the

21 constitutionality of such a total bar on review. See, e.g., 151 Cong. Rec. H553, 556-

22 57 (Feb. 10, 2005) (attached as Ex. 7) (Statement of Cong. Farr) (introducing

23 Congressional Research Service letter observing that Congress does not clearly have

24 “authority to prevent courts . . . from addressing and remedying issues arising under

25 the United States Constitution”). Ultimately, the conference report explained that

26 Congress was providing “federal judicial review for claims alleging that the actions or

27 decisions of the Secretary violate the United States Constitution,” and that the strict

28

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1 limits on judicial review reflected the “Conferees’ intent [] to ensure that judicial

2 review of actions or decisions of the Secretary not delay the expeditious construction

3 of border security infrastructure, thereby defeating the purpose of the Secretary’s

4 waiver.” H.R. Rep. 109-72 at 172.

5 II. THE SECRETARY’S EXERCISE OF WAIVER AUTHORITY

6

Pursuant to the IIRIRA, the Secretary has repeatedly issued waiver

7 determinations as necessary to ensure expeditious construction of barriers and roads

8 along the border. See 73 Fed. Reg. 19078 (Apr. 8, 2008); 73 Fed. Reg. 19077 (Apr. 8,

9 2008); 72 Fed. Reg. 60870 (Oct. 26, 2007); 72 Fed. Reg. 2535 (Jan. 19, 2007); 70

10 Fed. Reg. 55622 (Sept. 22, 2005). Every judicial challenge to these determinations

11 has been dismissed. See County of El Paso v. Chertoff, No. 08-196, 2008 WL

12 4372693 (W.D. Tex. 2008), cert. denied, 557 U.S. 915 (2009); Save Our Heritage v.

13 Gonzalez, 533 F. Supp. 2d 58 (D.D.C. 2008); Defenders of Wildlife v. Chertoff, 527 F.

14 Supp. 2d 119 (D.D.C. 2007), cert. denied, 554 U.S. 918 (2008); Sierra Club v.

15 Ashcroft, No. 04-272, 2005 U.S. Dist. LEXIS 44244 (S.D. Cal. Dec. 13, 2005).

16

On July 26, 2017, the Secretary issued another waiver determination under the

17 IIRIRA. The Secretary determined that a fifteen-mile stretch of border in the U.S.

18 Border Patrol’s San Diego Sector (the “Project Area”) is an area of high illegal entry.

19 82 Fed. Reg. 35984, 35984-85 (Aug. 2, 2017). The Secretary also determined that

20 there is “a need to construct physical barriers and roads . . . in the vicinity of the

21 border of the United States to deter illegal crossings in this Project Area. Id. at 35985.

22 Finally, the Secretary concluded that exercise of his waiver authority under the

23 IIRIRA was necessary “to ensure the expeditious construction of the barriers and

24 roads in the Project Area.” Id. Accordingly, the Secretary announced the waiver of

25 certain laws “with respect to the construction of roads and physical barriers . . . in the

26 Project Area.” Id. As relevant here, the waived laws include the NEPA, 42 U.S.C.

27

28

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1 4321 et seq., and the ESA, 16 U.S.C. 1531 et seq.3

2

Two specific projects that will be conducted pursuant to the waiver

3 determination are currently in the contracting process. One project involves

4 replacement of the existing primary fencing in the Project Area, which was primarily

5 constructed in the early 1990s using a design that is “no longer optimal for Border

6 Patrol operations.” Id. at 35984-85. Contracts have not yet been solicited or awarded

7 for this project, and construction is not expected to begin until early 2018. The second

8 project involves construction of border wall prototypes at the eastern end of the

9 secondary barrier in the Project Area. Id. at 35985. The border wall prototypes are

10 intended both to deter illegal entry at that location and to assist DHS in evaluating

11 various design features for inclusion in a border wall standard to be used in future

12 construction. Id. Contract solicitations for both reinforced solid concrete (“concrete”)

13 and alternatives to reinforced solid concrete (“other materials”) prototypes were issued

14 in March 2017, and amended several times before contract award. See Solicitation

15 Nos. HSBP1017R0022, HSBP1017R0023 (as amended Apr. 1, 2017) (attached as

16 Exs. 12-13. Contracts were awarded for concrete prototypes on August 30, 2017 and

17 for other materials prototypes on September 7, 2017. See Press Release (Sept. 7,

18 2017) (link); Press Release (Aug. 30, 2017) (link) (attached as Exs. 16-17). Prototype

19 construction began on September 26, 2017 and is expected to be completed within 30

20 days. See Press Release (Sept. 26, 2017) (link) (attached as Ex. 15).

21

Even where the Secretary has waived environmental and other laws, U.S.

22 Customs and Border Protection (“CBP”) still consults with relevant stakeholders

23 pursuant to § 102(b)(1)(C). And CBP explained at a congressional hearing, it does

24 not “turn[] its back on environmental stewardship or continued consultation with

25

26 3 On September 12, 2017, DHS published a separate waiver determination for
27 replacement of three miles of primary border fencing near Calexico, California in the El Centro Sector. See 82 Fed. Reg. 42829 (Sept. 12, 2017) (“El Centro Waiver”).
28 Plaintiff’s Second Amended Complaint does not challenge this decision.

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1 stakeholders.” Walls & Waivers: Expedited Construction of the Southern Border Wall

2 and Collateral Impacts to Communities and the Environment: Joint Oversight Field

3 Hearing Before Subcommittees to H. Comm. on Natural Resources (hereinafter

4 “Walls & Waivers Hearing”), 110th Cong. 25 (2008) (attached as Ex. 10) (statement

5 of Ronald D. Vitiello, CBP Chief Patrol Officer, Rio Grande Valley Sector); see also

6 id. at 19 (statement of Rick Shultz, Nat’l Borderland Coordinator, U.S. Dep’t of the

7 Interior (“DOI”)) (explaining that when the DHS Secretary issued two waivers “he

8 reaffirmed DHS’s commitment to environmental stewardship” and that “[t]his

9 commitment, as it applies to DOI-administered lands and programs, included

10 mitigation funding up to $50 million for threatened and endangered species”). For the

11 prototypes project currently under construction, CBP has consulted with relevant

12 stakeholders, conducted site surveys for environmental and endangered species

13 concerns, and required the contractors to comply with best practices designed to

14 mitigate any environmental harm. See Memorandum, Construction and Evaluation of

15 Border Wall Prototypes, U.S. Border Patrol, San Diego Sector, California (Sept. 25,

16 2017) (attached as Ex. 14).

17 III. PROCEDURAL HISTORY

18

Plaintiff initially filed this action to challenge Defendants’ response to several

19 requests under the FOIA, 5 U.S.C. § 552. (ECF No. 1). It later amended the

20 complaint to allege violation of NEPA. (ECF No. 6). Pursuant the schedule set at the

21 joint request of the parties, Plaintiff filed a second amended complaint on September

22 6, 2017. (ECF Nos. 14, 16). Plaintiff’s second amended complaint alleges that the

23 waiver determination is ultra vires (Count 1), that the waiver determination violates

24 the Take Care Clause, Non-Delegation Doctrine, and Presentment Clause of the

25 Constitution (Counts 2, 3, 4), that Defendants have failed to comply with NEPA and

26 the ESA (Counts 5, 6), and that the processing of certain FOIA requests violates the

27 FOIA and APA (Count 7). See 2d Am. Compl. ¶¶ 122-185.

28

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1

Two other lawsuits have been filed in this district that raise claims regarding the

2 same waiver determination (along with the El Centro waiver that is not at issue here).

3 See People of the State of California v. United States, No. 3:17-cv-1911-TJW-BLM

4 (Sept. 20, 2017) (brought by California and the California Coastal Commission);

5 Defenders of Wildlife v. Duke, No. 3:17-cv-1873-GPC-WVG (Sept. 14, 2017)

6 (brought by Defenders of Wildlife, Sierra Club, and Animal Legal Defense Fund).

7

ARGUMENT

8 I. STANDARD OF REVIEW

9

“[W]hen a federal court lacks subject-matter jurisdiction, the court must dismiss

10 the complaint, sua sponte if necessary.” Pistor v. Garcia, 791 F.3d 1104, 1110 (9th

11 Cir. 2015). Subject matter jurisdiction “refers to the courts’ statutory or constitutional

12 power to adjudicate the case.” Id. Plaintiffs have the burden to establish jurisdiction.

13 See Washam v. Rabine, No. 3:13-2433, 2013 WL 1849233, at *1 (S.D. Cal. May 1,

14 2013). In resolving a motion to dismiss for lack of jurisdiction under Rule 12(b)(1),

15 the Court “may consider evidence outside the complaint and ordinarily need not

16 presume the truthfulness of the plaintiff’s allegations.” Osgood v. Main Street

17 Marketing, LLC, No. 16-2415, 2017 WL 131829, at *4 (quotation marks omitted).4

18

A claim may be dismissed under Fed. R. Civ. P. 12(b)(6) for either the “lack of

19 a cognizable legal theory or the absence of sufficient facts alleged under a cognizable

20 legal theory.” Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121-22 (9th

21 Cir. 2008) (quotation marks omitted). “To survive a motion to dismiss, a complaint

22 must contain sufficient factual matter, accepted as true, to state a claim to relief that is

23 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Review is limited

24 to the complaint, materials incorporated into the complaint by reference, and matters

25 of which the court may take judicial notice.” Metlzer Inv. GMBH v. Corinthian

26

27 4 Hereinafter, internal quotation marks, alterations, and citations are omitted from
28 quotations unless otherwise noted.

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1 Colls., Inc., 540 F.3d 1049, 1061 (9th Cir. 2008).5

2 II. PLAINTIFF’S NON-CONSTITUTIONAL CLAIMS REGARDING THE

WAIVER DECISION MUST BE DISMISSED FOR LACK OF

3

JURISDICTION (COUNT 1)

4

A. The Court Lacks Jurisdiction to Consider Plaintiff’s Non-

5

Constitutional Claims Regarding the Waiver Decision

6

It is axiomatic that federal courts “are courts of limited jurisdiction possessing

7 only that power authorized by Constitution and statute.” Gunn v. Minton, 568 U.S.

8 251, 256 (2013). Accordingly, “district courts may not exercise jurisdiction absent a

9 statutory basis.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552

10 (2005); see also Duldulao v. INS, 90 F.3d 396, 400 (9th Cir. 1996) (“Congress has the

11 constitutional authority to define the jurisdiction of the lower federal courts.”).

12 Because district court jurisdiction is a creature of statute, the extent of that jurisdiction

13 depends on congressional intent. “Subject to constitutional constraints, Congress can,

14 of course, make exceptions to the historic practice whereby courts review agency

15 action.” Bowen v. Michigan Acad. of Family Physicians, 476 U.S. 667, 670, 672-73

16 (1986). Thus a court must find that it lacks jurisdiction to review agency action upon

17 a showing of “specific language or specific legislative history that is a reliable

18 indicator of congressional intent, or a specific congressional intent to preclude judicial

19 review that is fairly discernible in the detail of the legislative scheme.” Id. at 673. It

20 is Plaintiff’s burden, as the party asserting jurisdiction, to overcome the

21

22 5 Judicial notice is appropriate for many government documents. See Papai v. Harbor

23

Tug and Barge Co., 67 F.3d 203, 207 n.5 (9th Cir. 1995), rev’d on other grounds, 520 U.S. 548 (1996) (“Judicial notice is properly taken of orders and decisions made by

24 other courts or administrative agencies.”); Parks v. Wells Fargo Bank, N.A., No. 3:15-

2558, 2016 WL 411674, at *2 (S.D. Cal. Feb. 3, 2016) (taking judicial notice of 25 “information appearing on and printed from official government websites”); United

26

States v. Walt Disney Co., No. 12-8036, 2013 WL 12131741, at *4 n.5 (C.D. Cal. Aug. 9, 2013) (taking judicial notice of Congressional Research Service report as “a

27 government publication and a matter of public record”); In re Tourism Assessment Fee Litig., No. 08-1796, 2009 WL 10185458, at *4 (S.D. Cal. Feb. 19, 2009) (“[A] court

28 may take judicial notice of records and reports of administrative bodies.”).

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1 “presum[ption] that a cause lies outside [of federal courts’] limited jurisdiction.”

2 Columbia Riverkeeper v. U.S. Coast Guard, 761 F.3d 1084, 1091 (9th Cir. 2014)

3 (quoting Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994)).

4

Here, Congress has expressly withdrawn district court jurisdiction to review

5 non-constitutional challenges to the Secretary’s exercise of waiver authority:

6

The district courts of the United States shall have exclusive jurisdiction

7

to hear all causes or claims arising from any action undertaken, or any decision made, by the Secretary of Homeland Security pursuant to

8

paragraph (1). A cause of action or claim may only be brought alleging a

9

violation of the Constitution of the United States. The court shall not have jurisdiction to hear any claim not specified in this subparagraph.

10 IIRIRA § 102(c)(2)(A). This specific statutory language expansively encompasses

11 “all causes or claims arising from any action undertaken, or any decision made”

12 pursuant to § 102(c)(1). Id. The Act both expressly identifies the sort of suits that

13 may be brought: “only . . . alleging a violation of the Constitution,” and expressly

14 removes court jurisdiction over “any claim not specified in this subparagraph.” Id.

15

There is no reason to doubt the import of this plain language. A court in this

16 district found the Act straightforward, declaring that the provision “itself restricted

17 judicial review of any claims to constitutional claims.” See Sierra Club, 2005 U.S.

18 Dist. LEXIS 44244, at *28; see also id. (holding that Congress “circumscribed the

19 judicial review available for decisions of the Secretary in the exercise of delegated

20 authority to expedite construction”); id. at *38 (“The only justiciable controversies

21 Congress left for the courts to decide in this connection are constitutional claims.”).

22 The Ninth Circuit has observed that “many . . . provisions of the IIRIRA . . . do in fact

23 specify that particular decisions are within the sole or unreviewable discretion of the

24 Attorney General.” Spencer Enterprises, Inc. v. United States, 345 F.3d 683, 690 (9th

25 Cir. 2003). Section 102(c) is strikingly similar to another provision of the IIRIRA, 8

26 U.S.C. § 1182(a)(9)(B)(v), which states:

27

The Attorney General has sole discretion to waive [§ 1182(a)(9)(B)(i)] in

28

the case of an immigrant who [meets certain conditions], if it is

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1

established to the satisfaction of the Attorney General that [certain

conditions are met]. No court shall have jurisdiction to review a decision

2

or action by the Attorney General regarding a waiver under this clause.

3 Courts have dismissed challenges to exercise of such waiver authority because the

4 provision “specifically precludes judicial review and vests DHS with sole authority to

5 waive inadmissibility bars.” De Carreon v. Mukasey, No. 08-0501, 2008 WL

6 11336922, at *3 (S.D. Cal. Oct. 28, 2008); Lugo-Miramontes v. Holder, 464 F. App’x

7 639 (9th Cir. 2011) (“We lack jurisdiction to review the agency’s decision [under 8

8 U.S.C. § 1182(a)(9)(B)(v)] . . . .”); Herrera-Castillo v. Holder, 573 F.3d 1004, 1010

9 (10th Cir. 2009) (holding that the court “lacks jurisdiction to review the BIA’s

10 decision [under § 1182(a)(9)(B)(v)]”).

11

There are many other examples of Congress using similarly unambiguous “shall

12 not have jurisdiction” formulations to partially or completely bar judicial review. See,

13 e.g., 28 U.S.C. § 1359 (“A district court shall not have jurisdiction of a civil action in

14 which any party, by assignment or otherwise, has been improperly or collusively made

15 or joined to invoke the jurisdiction of such court.”); Upper Deck Int’l B.V. v. Upper

16 Deck Co., No. 11-1741, 2012 WL 1713453, at *7 (S.D. Cal. May 15, 2012)

17 (acknowledging that § 1359 “denies a district court jurisdiction” under the specified

18 circumstances).6 Further, the Act’s jurisdictional bar of “any claim not specified in

19 this subparagraph” cannot be confused with narrower statutory limitations which

20 merely specify the scope of jurisdiction pursuant to a particular statute. Cf. 28 U.S.C.

21 § 1346(d) (“The district courts shall not have jurisdiction under this section of any

22

23 6 See also, e.g., 8 U.S.C. § 1226a(b)(1) (providing for “mandatory detention of

24 suspected terrorist” but strictly limiting judicial review: “Judicial review of any action

or decision relating to this section . . . is available exclusively in habeas corpus 25 proceedings consistent with this subsection. Except as provided in the preceding

26

sentence, no court shall have jurisdiction to review, by habeas corpus petition or otherwise, any such action or decision.”); 22 U.S.C. § 6450 (“No court shall have

27 jurisdiction to review any Presidential determination or agency action under this chapter or any amendment made by this chapter.” (adopted by the Int’l Religious

28 Freedom Act of 1998, Pub. L. No. 105-292, § 410, 112 Stat. 2787 (Oct. 27, 1998))).

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1 civil action or claim for a pension.” (emphasis added)). In sum, Congress could not

2 have been clearer in stating that all non-constitutional claims are barred. Accordingly,

3 Plaintiff’s attempt to challenge the Secretary’s action on non-constitutional grounds

4 must be dismissed for lack of jurisdiction. See, e.g., Kerr v. Jewell, 836 F.3d 1048,

5 1058 & n.7 (9th Cir. 2016) (upholding dismissal for lack of jurisdiction “because it is

6 fairly discernible that Congress intended the statute’s review scheme to provide the

7 exclusive avenue to judicial review”).

8

Plaintiff cannot evade this clear jurisdictional limitation by citing the series of

9 cases applying Leedom v. Kyne, 358 U.S. 184 (1958). Kyne involved a National

10 Labor Relations Board determination that was in “direct conflict with a provision of

11 the National Labor Relations Act.” Bd. of Governors of Fed. Reserve Sys. v. MCorp

12 Fin. Inc., 502 U.S. 32, 42 (1991). The Kyne Court rejected the argument that it lacked

13 jurisdiction where the statutory review provision did not expressly authorize judicial

14 review of such determinations. See id. at 42-43. Kyne stands for the proposition that

15 courts “cannot lightly infer that Congress does not intend judicial protection of rights

16 it confers against agency action taken in excess of delegated powers.” MCorp Fin.,

17 502 U.S. at 43 (quoting Kyne, 358 U.S. at 190); see also id. at 44 (“Kyne stands for

18 the familiar proposition that ‘only upon a showing of clear and convincing evidence of

19 a contrary legislative intent should the courts restrict access to judicial review.’”

20 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 141 (1967))). But Kyne does not

21 “authoriz[e] judicial review of any agency action that is alleged to have exceeded the

22 agency's statutory authority.” MCorp Fin., 502 U.S. at 43 (emphasis added). Instead,

23 Kyne and its progeny address only whether ultra vires review is impliedly barred by

24 the statutory scheme. Kyne does not apply where “Congress has spoken clearly and

25 directly” to preclude review. Id. at 44; see also Pinnacle Armor, Inc. v. United States,

26 648 F.3d 708, 719 (9th Cir. 2011) (stating that presumption of judicial review for

27 administrative action “is overcome” when “Congress expressly bars review by

28

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1 statute”); Nyunt v. Broad. Bd. of Governors, 589 F.3d 445, 449 (D.C. Cir. 2009)

2 (holding that the Kyne exception “applies . . . only where . . . the statutory preclusion

3 of review is implied rather than express”).

4

Here, just as in MCorp Financial, Congress “has spoken clearly and directly” to

5 preclude judicial review. In MCorp Financial, the relevant statute stated that “except

6 as otherwise provided in this section or under [two other sections] of this title no court

7 shall have jurisdiction to affect by injunction or otherwise the issuance or enforcement

8 of any [Board] notice or order under this section.” 12 U.S.C. § 1818(i)(1); see 502

9 U.S. at 44. The Supreme Court held that ultra vires review under Kyne was

10 unavailable because “the clarity of the congressional preclusion of review” in this

11 statute stood in marked contrast to the statute at issue in Kyne, in which it had only

12 been argued that a judicial review statute “implied, by its silence, a preclusion of

13 review of the contested determination.” 502 U.S. at 44; see also United States v.

14 Spiegel, 995 F.2d 138, 140 (9th Cir. 1993) (noting that the “statutory language [of

15 § 1818(i)(1)] leaves no room to doubt that Congress provided only one avenue for

16 challenging” agency action under that section). The IIRIRA, like 12 U.S.C.

17 § 1919(i)(1), does not raise the issue of an implied preclusion of review. Congress has

18 expressly barred judicial review of non-constitutional claims—“The court shall not

19 have jurisdiction to hear any claim not specified in this subparagraph.” IIRIRA

20 § 102(c)(2)(A). The only avenue for challenging agency action here is a constitutional

21 claim. As another court has noted, the presumption in favor of judicial review cannot

22 be employed “where, as here, Congress has been so explicit in stating a prohibition

23 against judicial review—federal courts are not, after all, superlegislatures entitled to

24 invoke a generalized presumption to trump an express ‘hands off’ direction from

25 Congress.” Am. Soc’y of Anesthesiologists v. Shalala, 90 F. Supp. 2d 973, 975 (N.D.

26 Ill. 2000), aff’d, 279 F.3d 447 (7th Cir. 2002) (addressing 42 U.S.C. § 1395w–4).

27

The plain meaning of the Act should be the end of the matter. Aragon-Salazar

28

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1 v. Holder, 769 F.3d 699, 704 (9th Cir. 2014) (“[Courts] must presume that a

2 legislature says in a statute what it means and means in a statute what it says there.

3 When the words of a statute are unambiguous, then, this first canon is also the last:

4 judicial inquiry is complete.” (quoting Connecticut Nat’l Bank v. Germain, 503 U.S.

5 249, 253-254 (1992))); Santiago Salgado v. Garcia, 384 F.3d 769, 771 (9th Cir. 2004)

6 (“In construing federal statutes, we presume that the ordinary meaning of the words

7 chosen by Congress accurately express its legislative intent.”). But if the Court finds

8 any ambiguity in the text, the legislative history also supports the government’s

9 reading. The limitation on judicial review was adopted as part of the REAL ID Act of

10 2005. The underlying bill that passed the House of Representatives would have gone

11 even farther, entirely barring judicial review, see 109th Cong., H.R. 1268, Div. B

12 § 102 (engrossed in House, Mar. 16, 2005) (attached as Ex. 3),7 which was a

13 significant concern to opponents of the bill.8 Because the Senate passed a substitute

14 version of the bill that differed substantially from the House version (and did not

15 include any provision regarding IIRIRA § 102), the bill was finalized by a conference

16 committee. See H.R. Rep. No. 109-72 (May 3, 2005) (Conf. Rep.). The conference

17 committee noted that the House bill “would prohibit judicial review” and explained

18 that the committee had “revised the House provision in the following respects,”

19 including “provid[ing] federal judicial review for claims alleging that the actions or

20

21 7 “[N]o court, administrative agency, or other entity shall have jurisdiction—(A) to hear any cause or claim arising from any action undertaken, or any decision made, by
22 the Secretary of Homeland Security pursuant to paragraph (1); or (B) to order compensatory, declaratory, injunctive, equitable, or any other relief for damage
23 alleged to arise from any such action or decision.”

24 8 See, e.g., 151 Cong. Rec. H557 (Feb. 10, 2005) (statement of Congresswoman

Davis) (objecting to provision because it “bars judicial review of any claim arising 25 from the construction of barriers and roads at borders”); 151 Cong. Rec. H559 (Feb.

26

10, 2005) (statement of Congressman Mark Udall) (“The bill also removes any judicial review of the waiving of these laws.”); id. at E247 (attached as Ex. 8)

27 (statement of Congressman James Langevin) (“This overly broad provision would

give unprecedented power to the Secretary to undertake large construction projects

28 without any accountability or judicial review.”).

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1 decisions of the Secretary violate the United States Constitution.” See H.R. Rep. No.

2 109-72 at 171-72. The report further explained that “[t]he Conferees’ intent is to

3 ensure that judicial review of actions or decisions of the Secretary not delay the

4 expeditious construction of border security infrastructure, thereby defeating the

5 purpose of the Secretary’s waiver.” Id. at 172. Thus, the conference report makes

6 clear that the House’s complete bar on judicial review was modified only to permit

7 judicial review of constitutional claims, and that strictly limited judicial review was

8 fundamental to the statutory scheme. Cf. NLRB v. United Food & Commercial

9 Workers Union, 484 U.S. 112, 130-133 (1988) (holding that “prosecutorial” decisions

10 of the General Counsel of the NLRB are not subject to judicial review, in part because

11 review “would involve lengthy judicial proceedings in precisely the area where

12 Congress was convinced that speed of resolution is most necessary”).9

13

In sum, “the clear terms of the statute” control here, and no “policy arguments”

14 Plaintiff may wish to make can “override Congress’s clear choice.” Spiegel, 995 F.2d

15 at 140. Plaintiff’s non-constitutional challenges to the waiver determination must be

16 dismissed for lack of jurisdiction.

17

B. To the Extent the Court Conducts Ultra Vires Review, It Must

Conclude that the Secretary Did Not Exceed His Statutory Authority 18

In the alternative, to the extent the Court determines that—despite the plain text 19

20 9 Indeed, environmental groups and the prior challenges to the exercise of § 102(c)

21 waiver authority have accepted as a given that the only available legal challenges are

22

constitutional claims. See, e.g., County of El Paso, 2008 WL 4372693 (pressing only nondelegation, Presentment Clause, and Tenth Amendment constitutional claims);

23

Save Our Heritage, 533 F. Supp. 2d 58 (pressing only a nondelegation constitutional claim); Defenders of Wildlife, 527 F. Supp. 2d 119 (pressing only nondelegation,

24 Presentment Clause, and separation of powers constitutional claims); Sierra Club,

2005 U.S. Dist. LEXIS 44244 (pressing only nondelegation and Article III 25 constitutional claims, along with a retroactivity claim with constitutional

26

implications); see also Walls & Waivers Hearing, 110th Cong. 122 (statement of Sandra Purohit, Defenders of Wildlife) (observing that the withdrawal of “judicial

27 review with the exception of Constitutional challenges, thus preclud[es] any independent review of whether the DHS Secretary has only waived the laws

28 ‘necessary’ for the expeditious construction of border walls”).

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1 of the statute and Congress’ clear intent—courts retain jurisdiction to determine

2 whether a waiver determination is ultra vires, the Secretary’s decision here must be

3 upheld. Under the extraordinarily deferential ultra vires review standard, the Court

4 must conclude that the Secretary did not exceed his statutory authority.

5

Under the “narrow exception” carved out in Leedom v. Kyne, where a court

6 otherwise lacks authority to review an agency action, it may determine that the agency

7 has exceeded its statutory authority only if the challenged action “contravene[s] ‘clear

8 and mandatory’ statutory language.” Pacific Maritime Ass’n v. NLRB, 827 F.3d 1203,

9 1208 (9th Cir. 2016) (quoting Kyne, 358 U.S. at 188).10 The agency must be “charged

10 with violating a clear statutory mandate or prohibition.” Staacke v. U.S. Sec’y of

11 Labor, 841 F.2d 278, 281 (9th Cir. 1988). See also Am. Airlines, Inc. v. Herman, 176

12 F.3d 283, 293 (5th Cir. 1999) (“Courts . . . generally have interpreted Kyne as

13 sanctioning the use of injunctive powers only in a very narrow situation in which there

14 is a plain violation of an unambiguous and mandatory provision of the statute.”);

15 Greater Detroit Resource Recovery Auth. v. EPA, 916 F.2d 317, 323 (6th Cir. 1990)

16 (“[I]t must be shown that the action of the agency was a patent violation of its

17 authority” and it is “not automatically invo[cable] whenever a challenge to the scope

18 of an agency’s authority is raised”); Griffith v. FLRA, 842 F.2d 487, 493 (D.C. Cir.

19 1988) (“[R]eview may only be had when the agency’s error is patently a

20 misconstruction of the Act, or when the agency has disregarded a specific and

21 unambiguous statutory directive, or when the agency has violated some specific

22 command of a statute.”). A court’s jurisdiction under the Kyne exception is “one of

23 the narrowest known to the law.” Horizon Air Indus., Inc. v. Nat’l Mediation Bd., 232

24 F.3d 1126, 1131 (9th Cir. 2000); see also Nyunt, 589 F.3d at 449 (holding that

25

26

10 For a court to grant relief under Kyne and its progeny, the challenged action must also be one for which the plaintiff is “wholly deprive[d] . . . of a meaningful and

27 adequate means of vindicating its statutory rights.” Id. at 1208 (quoting MCorp Fin., 502 U.S. at 44). That prong is not in dispute here because Congress barred judicial

28 review of all non-constitutional claims.

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1 “extreme error” is required to rely on the Kyne exception, and that this is a “very

2 stringent standard” under which a claim “rarely succeeds”); Am. Airlines, 176 F.3d at

3 294 (concluding that “the narrow Kyne exception” is a “rarely invocable precedent”);

4 Greater Detroit, 916 F.2d at 323-24 (affirming that the Kyne exception “is a narrow

5 anomaly reserved for extreme situations”).

6

Plaintiff cannot carry that burden here. None of its arguments establishes that

7 DHS violated a “clear statutory mandate or prohibition.” Staacke, 841 F.2d at 281.

8

1. Plaintiff cannot show that § 102(c)’s waiver authority excludes

actions and decisions under § 102(a)’s general mandate

9

10

Plaintiff primarily argues that § 102(c) waiver authority “is limited to the

specific border barriers and roads required to be constructed pursuant to IIRIRA 11

12 section 102(b).” 2d Am. Compl. ¶ 124. This theory finds no support in the Act’s text:

13

Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive all legal requirements such

14

Secretary, in such Secretary’s sole discretion, determines necessary to

15

ensure expeditious construction of the barriers and roads under this section.

16 IIRIRA § 102(c)(1), as amended. By its plain terms, the waiver authority extends to

17 any construction “under this section,” upon determinations made in the Secretary’s

18 “sole discretion.” Id. “[T]his section” unambiguously refers to IIRIRA § 102 as a

19 whole. See, e.g., House Office of the Legislative Counsel, Guide to Legislative

20 Drafting, Section III. Organization within a bill (link) (explaining that “sections” are

21 the numbered “basic unit[s] of a bill, and thus of an enacted statute” and that

22 “terminology for referring to units within a section has become highly standardized”).

23 When Congress wanted to identify a specific unit within § 102, it did so in the

24 standardized format.11 Accordingly, the reference to “this section” in § 102(c)(1)

25

26 11 As the Guide to Legislative Drafting explains, § 102(a) is a “subsection,” §

102(b)(1) is a “paragraph,” and § 102(b)(1)(A) is a “subparagraph.” See id. Congress 27 followed this approach throughout § 102, both as originally enacted and as amended.

28

See, e.g., IIRIRA § 102(b)(1) (“subsection (a)”); id. § 102(b)(1)(C)(ii) (“this subparagraph”); id. § 102(b)(1)(C)(ii)(I) (“this subsection”); id. § 102(b)(1)(D) (“this

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1 cannot reasonably be read to refer exclusively to subsection 102(b). Instead, the

2 waiver authority plainly includes actions pursuant to any part of § 102 that meet

3 § 102(c)(1)’s criteria.12

4

Plaintiff attempts to disregard the breadth of the plain text by arguing that

5 § 102(b) limits and interprets § 102(a). 2d Am. Compl. ¶ 124. Congress gave DHS

6 the responsibility to

7

take such actions as may be necessary to install additional physical

barriers and roads (including the removal of obstacles to detection of

8

illegal entrants) in the vicinity of the United States border to deter illegal

9

crossings in areas of high illegal entry into the United States.

10 IIRIRA § 102(a). Plaintiff concedes that this provision “provid[es] general authority

11 to construct border fences and other border barriers.” 2d Am. Compl. ¶ 61; see also

12 id. ¶¶ 62, 66, 87, 124 (acknowledging this “general authority”). But Plaintiff appears

13 to argue that § 102(b)(1), by identifying specific requirements for the agency “[i]n

14 carrying out subsection (a),” limits the general authority set out in § 102(a). See id. ¶

15 124 (claiming that § 102(b) “identifies the specific ‘construction of fencing and road

16 improvements along the border’ necessary to ‘carry[] out subsection(a)’”). This

17 theory is highly implausible and must be rejected for four reasons.

18

First, when Congress identifies certain specific applications of a general grant

19 of authority, those specific requirements cannot generally be understood to prohibit all

20 other applications of the general authority. See Barnhart v. Peabody Coal Co., 537

21 U.S. 149, 168 (2003) (“We do not read the enumeration of one case to exclude another

22

23 paragraph” “subparagraph (A)”); id. § 102(b)(2) (“subsection (d)” “this subsection”);

24

id. § 102(b)(3) (“this subsection”); id. § 102(b)(4) (“this subsection” “this paragraph”); id. § 102(c)(2)(A) (“paragraph (1)” “this subparagraph”); id. §

25 102(c)(2)(B) (“subparagraph (A)”).

26

12 Even if it were ambiguous, DHS’ consistent interpretation that the § 102(c) waiver authority includes the Act as a whole would be entitled to Chevron deference. See,

27 e.g., 70 Fed. Reg. 55622, 55623 (Sept. 22, 2005) (explaining that § 102(c) grants “authority to waive all legal requirements . . . necessary to ensure the expeditious

28 construction of barriers and roads under section 102 of IIRIRA”).

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1 unless it is fair to suppose that Congress considered the unnamed possibility and

2 meant to say no to it.”). It is not unusual for Congress to provide non-exclusive

3 instructions for “carrying out” a general mandate.13 Arguments similar to Plaintiff’s

4 are routinely rejected. See, e.g., FTC v. Tarriff, 584 F.3d 1088, 1091 (D.C. Cir. 2009)

5 (rejecting argument “that the term ‘shall’ is a mandate not only to do one thing but to

6 cease and refrain from doing all others” as a claim that “borders on sophistry”);

7 Otsuka Pharm. Co. v. Burwell, No. 15-852, 2015 WL 1962240, at *7 (D. Md. Apr. 29,

8 2015) (“[Plaintiff] ignores the critical fact that [the statutory provision] sets forth

9 circumstances where FDA cannot deny approval for a labeling carve-out; it does not,

10 as [plaintiff] contends, address situations where FDA can or cannot grant approval.”);

11 Sidney Coal Co. v. SSA, 427 F.3d 336, 348 (6th Cir. 2005) (“[T]he statute’s explicit

12 reference to two types of employment need not preclude [the agency from] adding

13 another to the list.”). As for the IIRIRA, a court specifically rejected the notion that

14 “the 2006 amendment to section 102(b) . . . narrow[ed] the Secretary’s authority

15 [under § 102(a)],” because “[t]he statute’s explicit language does not support such an

16 interpretation.” Save our Heritage Org., 533 F. Supp. 2d at 61; id. (“[T]he Court finds

17 that section 102(a), on its face, authorizes construction of barriers such as the San

18 Diego Barrier in areas that the Secretary determines are areas of high illegal entry.”).14

19

20 13 See, e.g., 8 U.S.C. § 1443 (requiring Attorney General to “broadly distribute information concerning the benefits of [naturalization]” and specifying that “[i]n
21 carrying out this subsection, the Attorney General shall seek the assistance of . . .

22 relevant organizations”); 33 U.S.C. § 2326(a)(1)(A), (f) (giving Secretary of the Interior general responsibility to “develop . . . regional sediment management plans”
23 and specifying that “[i]n carrying out this section, the Secretary shall give priority to

24 [projects] in the vicinity of [eleven specific locations]”); 42 U.S.C. § 18352 (giving NASA general responsibility to “maximize the productivity and use of the
25 [International Space Station]” and specifying that “[i]n carrying out subsection (a),

26 NASA shall, at a minimum, undertake the following [three specific tasks]”).

14 DHS has never countenanced such a narrow reading; it constructed border 27 infrastructure in locations other than San Diego well before 2005 and referenced its

28

IIRIRA authority in doing so. See, e.g., CBP Finding of No Significant Impact for Infrastructure (Nov. 19, 2003) (attached as Ex. 19) (explaining that “the proposed

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1

Second, the specific terms of the IIRIRA as originally enacted cut sharply

2 against such a reading. It is not apparent how the broad mandate to “install additional

3 physical barriers and roads . . . to deter illegal crossings in areas of high illegal entry,”

4 § 102(a), could be fulfilled by the narrow instruction to construct “second and third

5 fences” “along the 14 miles of the international land border . . . starting at the Pacific

6 Ocean.” Pub. L. No. 104-208, Div. C, Title I § 102(b)(1). Plaintiff’s effort to force

7 such a reading would render § 102(a) largely superfluous. See Hooks v. Ktsap Tenant

8 Support Servs., Inc., 816 F.3d 550, 560 (9th Cir. 2016) (“It is a cardinal principle of

9 statutory construction that a statute ought, upon the whole, to be so construed that, if it

10 can be prevented, no clause, sentence, or word shall be superfluous, void, or

11 insignificant.”). Section 102(a)’s broad mandate to identify “areas of high illegal

12 entry” would not only become empty, but also create substantial confusion if

13 Congress only intended to address a single 14-mile stretch near San Diego. See

14 Pacific Mut. Life Ins. Co. v. Am. Guaranty Life Ins. Co., 722 F.2d 1498, 1500 (9th Cir.

15 1984), overruled on other grounds by In re McLinn, 739 F.2d 1395 (9th Cir. 1984)

16 (“Interpretative constructions of a statute which would render some words surplusage,

17 defy common sense, or lead to mischief or absurdity are to be avoided.”); see also

18 Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 929 (9th Cir. 2004)

19 (“[C]ourts are especially reluctant to discard as surplusage the ‘pivotal’ words of a

20 statute.” (citing Duncan v. Walker, 533 U.S. 167, 174 (2001))).

21

Third, subsequent amendments to § 102(b)(1), which adopted significantly

22 different requirements within a fourteen month span in 2006 and 2007, see supra,

23 Background § I (discussing differences between Dec. 26, 2007 and Oct. 26, 2006

24 approaches to § 102(b)), further demonstrate that this subsection merely identifies

25

26

border infrastructure system [for Cochise County, Arizona] has been planned in compliance with the IIRIRA”); Cong. Research Serv., RL33659, Border Security:

27 Barriers Along the U.S. Int’l Border at 19 (Mar. 16, 2009) (attached as Ex. 11) (noting that appropriations for fiscal years 1998-2000 included “fencing, light, and road

28 projects in El Centro, Tucson, El Paso, and Marfa”).

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1 certain areas for action and reflects Congress’ shifting priorities. These requirements

2 do not foreclose many other applications of § 102(a).15

3

Finally, Plaintiff cannot overcome the plain meaning of the statutory text by

4 pointing out that Congress, in passing § 102 in 1996 and amending § 102(c) in 2005,

5 was primarily focused on portions of fencing near San Diego. See 2d Am. Compl. ¶¶

6 73-75. 16 See Aragon-Salazar, 769 F.3d at 704 (“When the words of a statute are

7 unambiguous . . . judicial inquiry is complete.”). Congress could easily have crafted

8 language that simply mandated the relevant construction near San Diego. Instead,

9 Congress adopted a far broader approach by establishing a general mandate in

10 § 102(a) that is not geographically limited and by extending § 102(c)’s waiver

11 authority to any actions or decisions “under this section.” The conference report—

12 generally considered the best evidence of legislative intent, see Nw. Forest Resource

13 Council v. Glickman, 82 F.3d 825, 835 (9th Cir. 1996)—confirms that § 102 applied

14 beyond San Diego by explaining that it “provides for construction and strengthening

15 of barriers along U.S. land borders.” H.R. Rep. 109-72 at 170 (May 3, 2005); see also

16 id. at 171 (describing both the original and amended waiver authority as “ensur[ing]

17 expeditious construction of barriers and roads” and “the expeditious construction of

18 security infrastructure along the border”). The breadth of § 102(c) was repeatedly

19 noted by opponents of the bill and was not contradicted by its sponsors. See, e.g., 151

20 Cong. Rec. H459 (Feb. 9, 2005) (attached as Ex. 6) (statement of Cong. Jackson-Lee)

21

22 15 Plaintiff’s claim that the § 102(b)(1) requirements stemming from the 2006 and 2007 amendments “have already been fulfilled,” 2d Am. Compl. ¶ 132; id. ¶¶ 88-91,
23 130-132, is irrelevant because DHS does not ground its waiver determination in §

24

102(b). Defendants do not concede that these requirements have no current significance, but do not address the matter further here because nothing turns on it.

25 16 Plaintiff’s citation of the title of House bill H.R. 1268 is entitled to no weight

26

because the language Plaintiff emphasizes does not appear in the final legislation, and therefore does not represent the intent of Congress as a whole. See Pub. L. No. 109-

27 13, Div. B. See also Northstar Financial Advisors, Inc. v. Schwab Investments, 615 F.3d 1106, 1120 (9th Cir. 2010) (“[T]he Supreme Court has cautioned that the title of
28 a statute and the heading of a section cannot limit the plain meaning of the text.”).

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1 (“[The waiver provision] so broad that it would not just apply to the San Diego border

2 fence that is the underlying reason for this provision. It would apply any other barrier

3 or fence that may come about in the future.”).17 Thus, there is no reason to conclude

4 that the triggering events for passage of the waiver—litigation delaying San Diego

5 border infrastructure construction—should be interpreted to limit the otherwise plain

6 text of the Act. See Student Loan Fund of Idaho, Inc. v. U.S. Dep’t of Educ., 272 F.3d

7 1155, 1165 (9th Cir. 2001) (“[L]egislative history which does not demonstrate a clear

8 and certain congressional intent cannot form the basis for enjoining regulations.”)

9

2. Plaintiff cannot show that § 102(a) and (c) unambiguously

apply only to the “initial construction of border barriers,” not

10

their enhancement

11

Plaintiff also argues that the § 102(c) waiver authority applies only “to the

12 initial construction of border barriers,” not the “border wall replacement or border

13 wall prototype projects” at issue here. 2d Am. Compl. ¶ 134. Plaintiff’s cramped

14 reading of the Act is not the best reading, let alone the exclusive reading—as would be

15 necessary to meet the ultra vires review standard here.

16

While Plaintiff argues that the “plain language” of § 102(c) limits its scope to

17 “initial construction,” 2d Am. Compl. ¶ 134, nothing in that subsection independently

18

19 17 See also id. H454 (Feb. 9, 2005) (Statement of Cong. Conyers) (“waiving all

20 Federal laws concerning construction of barriers and fences anywhere within the United States”); 151 Cong. Rec. H554 (Feb. 10, 2005) (statement of Cong. Harman)

21 (“[T]he reach is beyond the San Diego border. According to the language in this

22

legislation, it is all areas along and in the vicinity of our international borders with both Mexico and Canada.”); id. H556 (Feb. 10, 2005) (Cong. Farr submitting

23

memorandum which observed that the waiver authority “seem[s] to apply to all the barriers that may be constructed under the authority of §102 of IIRIRA (i.e., barriers

24 constructed in the vicinity of the border and the barrier that is to be constructed near

the San Diego area)”); id. H559 (statement of Cong. Udall) (objecting to bill because 25 “the language of the bill is not limited to the construction of a fence in [San Diego]”

26

but instead includes “all laws for all U.S. borders”). Indeed, members of Congress similarly noted that the 1996 version of § 102(c) also extended beyond San Diego.

27 See 142 Cong. Rec. H11076 (Sept. 25, 1996) (attached as Ex. 4) (statement of Rep.

Saxton) (“[T]he way this section is written, the exemption applies to the entire border

28 of the United States, not just the California-Mexico border near San Diego.”).

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1 qualifies the “barriers and roads” that fall within its scope. See IIRIRA § 102(c)(1)

2 (permitting waiver of legal requirements the Secretary “determines necessary to

3 ensure expeditious construction of the barriers and roads under this section”). Both

4 the wall replacement project and the prototypes project essentially concern

5 “construction of . . . barriers.” See, e.g., Oxford English Dictionary, 2d ed. 1989

6 (defining construction as “[t]he action of framing, devising, or forming, by the putting

7 together of parts; erection, building.”); Columbia Riverkeeper, 761 F.3d at 1091

8 (“[W]e interpret these words according to their ordinary, contemporary, common

9 meaning.”). Thus, these projects are consistent with the text of § 102(c).

10

The projects are also within the scope of § 102(a), which gives the Secretary

11 authority “to take such actions as may be necessary to install additional physical

12 barriers and roads (including the removal of obstacles to detection of illegal

13 entrants).” With regard to the replacement project, Plaintiff appears to suggest that

14 “additional physical barriers” must mean new barriers in locations where no barrier

15 currently exists. But Plaintiff cannot show that such a narrow construction is required.

16 Dictionary definitions of “additional,” include flexible words such as “more,” “extra,”

17 and “added.” See, e.g., Oxford English Dictionary, 2d ed. 1989 (“Existing in addition,

18 coming by way of addition; added”); Websters New World College Dictionary, 3rd

19 ed. 1988 (“added, more, extra”); Random House College Dictionary, revised ed. 1980

20 (“added, supplementary”). Thus the term readily includes not only locations where no

21 barrier currently exists on the border, see H.R. Rep. 104-828, at 200 (Sept. 24, 1996)

22 (Conf. Rep.) (calling “for extension of the new fencing” for the full 14 miles near San

23 Diego); but also new barriers parallel to existing ones, see id. (calling for construction

24 of “second and third fences” near San Diego), and adding “more” to an existing

25 barrier, e.g., making it higher or more resistant to illegal entry. See Griffith, 842 F.2d

26 at 494 (rejecting ultra vires challenge where agency’s approach was “not the only

27 possible interpretation of the statutory language” but “surely a colorable one”). The

28

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1 legislative history for later amendments support this flexibility. See H.R. Rep. 109-72

2 at 170 (May 3, 2005) (explaining that § 102 “provides for construction and

3 strengthening of barriers along U.S. land borders”); 152 Cong. Rec. S9871 (Sept. 21,

4 2006) (attached as Ex. 9) (statement of Sen. Kyl) (discussing “replacing” existing

5 fencing, in part because it “is deteriorating”). And § 102(b) suggests that part of the

6 § 102(a) mandate can be fulfilled by adding “lighting, cameras, and sensors” to

7 existing barriers. See, e.g., § 102(b)(1)(A) (instructing DHS to carry out § 102(a), in

8 part, by “constructing reinforced fencing” and “provid[ing] for the installation of

9 additional physical barriers, roads, lighting, cameras, and sensors”).

10

The prototypes project involves “initial construction,” 2d Am. Compl. ¶ 134, so

11 the basis for Plaintiff’s objection is not apparent. In any event, the Act makes clear

12 that the Secretary’s authority encompasses more than the “physical barriers and roads”

13 themselves, both by including whatever “actions . . . may be necessary” for their

14 installation and by illustrating the point with an action that is not installation or

15 construction at all—“removal of obstacles to detection.” Id. The prototypes project

16 meets two aspects of this language—(1) the prototypes are “physical barriers” that are

17 intended “to deter illegal crossings” in the area, see 82 Fed. Reg. at 35985 (stating that

18 the location and “robust physical characteristics” of the prototypes “are intended to

19 deter illegal crossings”), and (2) they are actions the Secretary deemed necessary to

20 prepare for future installation of barriers. See id. (“to evaluate various design features

21 for potential inclusion in a border wall standard . . . [to be] utilized as a part of border

22 wall construction going forward”).

23

But perhaps the best ground for rejecting Plaintiff’s theory is that it would

24 produce absurd results that conflict with clear congressional intent. Plaintiff, to the

25 extent it seeks a narrow construction of § 102(a), would leave DHS without express

26 authority to repair or replace a section of wall damaged by illegal immigrants or a

27 natural disaster. Similarly, CBP could not replace or improve a barrier that proved

28

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1 operationally ineffective, even if the defect was discovered shortly after it was put up.

2 Such actions would not be “initial construction.” And to the extent Plaintiff suggests

3 § 102(c) alone is limited to “initial construction,” it can identify no textual basis for

4 the distinction. Nor would it be consistent with Congress’ goal to “gain operational

5 control” of the border, § 102(b)(1)(A), (D), for barriers built using waiver authority to

6 fall back under legal requirements that could require their removal or prevent their

7 repair. See, e.g., Walls & Waivers Hearing, 110th Cong. 17 (explaining that in

8 “national wildlife refuges and wilderness areas,” other statutes prohibit the

9 Department of the Interior from “permitting the construction of certain border security

10 infrastructure” in the absence of a waiver).

11

3. Plaintiff cannot show that § 102(c) unambiguously requires

that the Federal Register notice of a waiver determination

12

include a detailed “rationale”

13

Plaintiff next argues that the Secretary did not include “any rationale

14 demonstrating that” the 15-mile project area “is necessary to ‘deter illegal crossings in

15 areas of high illegal entry into the United States.’” 2d Am. Compl. ¶ 135 (quoting

16 IIRIRA § 102(a)). But nothing in § 102(c) requires explaining the basis for the

17 determination. Instead, the Act requires only that the Secretary’s decision be

18 “published in the Federal Register,” § 102(c)(1), which has been done here. Congress

19 explained that the limited purpose of the publication requirement was to “ensur[e]

20 appropriate public notice of such determinations,” H.R. Rep. 109-72, at 170 (May 3,

21 2005) (Conf. Rep.), without any suggestion that the notice need include a detailed

22 rationale or facilitate judicial review. Indeed, two aspects of the IIRIRA compel the

23 conclusion that, unlike ordinary actions subject to review under the APA, see, e.g.,

24 Ctr. for Biological Diversity v. Bureau of Land Mgmt., 833 F.3d 1136, 1150 (9th Cir.

25 2016), the agency need not provide a rationale sufficient to enable arbitrary and

26 capricious review. First, Congress barred all non-constitutional claims. See supra

27 Arg. § I. Challenges to the Secretary’s application of the statutory criteria are not

28

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1 constitutional claims, thus the rationale for that application is not necessary to

2 facilitate the limited judicial review available. Second, the Act makes clear that the

3 determination is made “in [the] Secretary’s sole discretion.” IIRIRA § 102(c)(1); see

4 also Spencer Enterprises, Inc. v. United States, 345 F.3d 683, 690 (9th Cir. 2003)

5 (observing that “many of the other provisions of the IIRIRA . . . do in fact specify that

6 particular decisions are within the sole or unreviewable discretion of the Attorney

7 General”). Even if review were permitted under the APA,18 agency action under this

8 provision would not be subject to judicial review because it is “committed to agency

9 discretion by law.” 5 U.S.C. § 701(a)(2); cf. Great Old Broads For Wilderness v.

10 Kempthorne, 452 F. Supp. 2d 71, 81 (D.D.C. 2006) (concluding § 701(a)(2) applied

11 “where Congress provided for “determin[ation of] the priority and timing for

12 completing required environmental analysis of grazing allotments” “in [the

13 Secretary’s] sole discretion”). It is clear that Congress intended the Secretary’s

14 rationale to be unreviewable.

15

Ultra vires review should, at most, reach no further than confirming that the

16 Secretary made the findings required by the statutory language. See IIRIRA

17 § 102(c)(1) (granting the Secretary authority “to waive all legal requirements such

18 Secretary . . . determines necessary to ensure expeditious construction of the barriers

19 and roads under this section”). See Staacke, 841 F.2d at 281 (looking only for

20 violation of “a clear statutory mandate or prohibition”); Am. Airlines, 176 F.3d at 293

21 (“a plain violation of an unambiguous and mandatory provision of the statute”).

22 Contrary to Plaintiff’s assertion, the Secretary did find specifically that the 15-mile

23 project area “is an area of high illegal entry.” 82 Fed. Reg. at 35985 (“I determine that

24 the following area . . . within the United States Border Patrol’s San Diego Sector . . .

25 is an area of high illegal entry: Starting at the Pacific Ocean and extending to

26

27 18 APA review is doubly impermissible here because Congress barred such claims, § 102(c)(2)(A), and because the DHS Secretary waived application of the APA to this
28 project. See 82 Fed. Reg. at 35985.

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1 approximately one mile east of Border Monument 251.”).19 This is sufficient to

2 satisfy ultra vires review and this determination, well within the Secretary’s expertise

3 and delegated “sole discretion,” should not be subject to judicial second-guessing.

4 While Plaintiff is incredulous that this area could qualify, 2d Am. Compl. ¶ 136, the

5 Secretary further explained that “construction of border infrastructure and other

6 operational improvements have improved border security in the San Diego Sector;

7 however, more work needs to be done,” and that the “San Diego Sector remains an

8 area of high illegal entry for which there is an immediate need to construct additional

9 border barriers and roads.” 82 Fed. Reg. at 35984.

10

Congress set no specific threshold for “high illegal entry,” and the Secretary’s

11 conclusion is reasonable. The Secretary noted publically-available statistics showing

12 that the San Diego Sector remains a problem, with “over 31,000 illegal aliens”

13 apprehended in the sector in fiscal year 2016, and large amounts of illegal drugs

14 seized. See 82 Fed. Reg. at 35984. The sector had the fourth-largest number of

15 apprehensions nationwide. See U.S. Border Patrol, Sector Profile – Fiscal Year 2016

16 (link) (attached as Ex. 18) (after the Rio Grande Valley, Tucson, and Laredo Sectors).

17 These facts certainly exceed whatever lower threshold could be set for “high illegal

18 entry,” especially when measured against Congress’ definition of “operational

19 control” of the border—“the prevention of all unlawful entries into the United States,

20 including . . . unlawful aliens, . . . narcotics, and other contraband.” Public Law 109-

21 367 § 2(b). And the legislative history for the Act demonstrates that Congress was

22 well aware that this corridor between San Diego and Tijuana has long been a source of

23 significant illegal entry into the United States. See, e.g., 151 Cong. Rec. H554-555

24

25 19 The Secretary also made several other findings specific to the project area: that there “is presently a need to construct . . . the infrastructure projects described in
26 Section 1,” 82 Fed. Reg. at 35985, that these projects involve “physical barriers and 27 roads” as those terms are used in the Act, id., and that it is “necessary that I exercise
the authority that is vested in me by section 102(c)” in order to “ensure the 28 expeditious construction of the barriers and roads.” Id.

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1 (statements of Cong. Hunter, Cong. Sensenbrenner); 150 Cong. Rec. H8899 (Oct. 8,

2 2004) (statement of Cong. Hunter) (attached as Ex. 5).

3

Finally, Plaintiff appears to object to the use of sector-wide statistics to support

4 the finding of high illegal entry. See 2d Am. Compl. ¶ 135. But Congress itself

5 frequently referred to sector-wide statistics in discussing the need for such projects.

6 See, e.g., 152 Cong. Rec. S9873 (Sept. 21, 2006) (statement of Sen. Kyl) (citing sector

7 wide statistics in support of Secure Fence Act); 151 Cong. Rec. H453 (Feb. 9, 2005)

8 (statement of Cong. Hart) (relying on San Diego Sector-wide statistics to support

9 completion of three mile segment of border barrier under REAL ID Act); id. H467

10 (statement of Cong. Cox) (same); id. H471 (statement of Cong. Bono) (same). And

11 nothing in the Act requires the Secretary to publish more granular data to prove that

12 the finding committed to his “sole discretion” was warranted.

13

4. Plaintiff cannot show that § 102(c) waiver authority has

unambiguously expired 14

15

Plaintiff’s final ultra vires theory is that the § 102(c) waiver authority has

expired. See 2d Am. Compl. ¶¶ 137-140. Plaintiff argues that the phrase “necessary 16

to ensure expeditious construction” must be determined in relation to the date the 17

18 waiver provision was enacted in 2005. See id. ¶ 139 (“as soon as possible after the

[2005 REAL ID Act’s] enactment”). But nothing in the text of the Act suggests that 19

Congress intended the waiver authority to sunset. Instead, the temporal focus of the 20

21 waiver provision is on the completion of each construction project under the Act. As

long as Congress continues to appropriate money for such projects, it stands to reason 22

that CBP should seek to ensure expeditious construction of them pursuant to the terms 23

of § 102.20 While not all such construction may require a waiver, § 102(c)(1) 24

25 20 See, e.g., Consolidated Appropriations Act, 2017, Pub. L. No. 115-31, Div. F, Title

26 VI, 131 Stat. 135, 434 (May 5, 2017) (appropriating $341 million “to replace

approximately 40 miles of existing primary pedestrian and vehicle border fencing 27 along the southwest border . . . and to add gates to existing barriers” and $77 million

28

“for new border road construction”); DHS Appropriations Act, 2015, Pub. L. No. 1144, 129 Stat. 39, 42 (Mar. 4, 2015) (appropriating $382 million “[f]or expenses for

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1 indicates that waivers are appropriate where “necessary to ensure expeditious

2 construction”—meaning at least that they can be issued when “expeditious

3 construction” would not occur in the absence of a waiver. IIRIRA § 102(c)(1).

4

Indeed, Plaintiff obliquely acknowledges that this theory falls apart if one

5 accepts that the waiver authority extends to “construction of additional barriers that

6 have not been specifically directed by Congress [in § 102(b)].” 2d Am. Compl. ¶ 140.

7 As discussed above, § 102(c) waiver authority is not limited to the projects identified

8 by Congress in § 102(b). See supra, Arg. § II(B)(1). Accordingly, Plaintiff’s theory

9 gains no support from the fact that Congress, in 2007, set deadlines under § 102(b)(1)

10 for selection of certain “priority areas” and completion of construction in those areas.

11 See 2d Am. Compl. ¶ 139. Instead, the specific deadlines for certain actions

12 undermines Plaintiff’s attempt to infer from congressional silence that the authority

13 granted in § 102(c) sunsets at some unspecified date. If Congress intended this

14 authority to sunset, it would have written that in the text.

15

The Secretary’s necessity determination readily meets the textual standard here.

16 Congress crafted the waiver provision because litigation by environmental groups and

17 opposition from California state agencies was preventing “expeditious construction.”

18 See, e.g., H.R. Rep. 109-72 at 171 (May 3, 2005) (Conf. Rep.) (“Continued delays

19 caused by litigation have demonstrated the need for additional waiver authority with

20 respect to other laws that might impede the expeditious construction of security

21 infrastructure along the border.”); see also 151 Cong. Rec. H557 (Feb. 10, 2005)

22 (statement of Congressman Royce); Walls & Waivers Hearing, 110th Cong. 8

23 (statement of Rep. Hunter). The vigorous opposition Plaintiff, other environmental

24 organizations, and the state of California have displayed here in filing three lawsuits

25 likewise suggests that construction today would be substantially delayed in the

26 absence of a waiver. In addition to the delay of litigation, Congress was well aware

27

28 border security fencing, infrastructure, and technology”).

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1 that the formal procedures for laws like NEPA and the ESA have been used to

2 significantly delay major infrastructure projects, both public and private, for years

3 even before the commencement of litigation, in the hope of stopping a given project

4 altogether.21 Plaintiff has not suggested—and cannot—that expeditious construction

5 would occur in the absence of a waiver.

6

In sum, each of Plaintiff’s ultra vires theories fails to justify judicial intrusion

7 on a decision Congress committed to the Secretary’s “sole discretion.”

8 III. PLAINTIFF’S CONSTITUTIONAL CLAIMS FAIL TO STATE A CLAIM
9

10

Congress limited judicial review of the Secretary’s exercise of § 102(c) waiver

authority to constitutional claims regarding “any action undertaken, or any decision 11

12 made, by the Secretary of Homeland Security pursuant to [§ 102(c)(1)].” Each of the

13 constitutional claims Plaintiff raises in Counts 2, 3, and 4, fails to state a claim upon

which relief can be granted. 14

15

A. The Secretary’s Action Does Not Violate Article II § 3 (Count 2)

16

Plaintiff argues that exercise of the waiver authority Congress provided in law

17 constitutes failure to “faithfully execute” the waived laws. 2d Am. Compl. ¶ 146.

18 This claim fails for numerous reasons.

19

Article II, Section 3 of the Constitution states that the President “shall take care

20 that the laws be faithfully executed.” This clause creates and vests personally in the

21 President the authority to supervise officers of the Executive Branch in the

22 performance of their duties. See Free Enterprise Fund v. Public Co. Accounting Bd.,

23

24 21 As noted above, see supra Background § II, Congress did not abandon

environmental or resource concerns but gave DHS the responsibility to consult 25 relevant resource agencies and other constituencies under § 102(b)(1)(C). Plaintiff

26

asserts that DHS has failed to comply with § 102(b)(1)(C), see 2d Am. Compl. ¶ 84, but does not specifically ground any of its ultra vires theories on this claim. See id. ¶¶

27 123-141. Regardless, this provision is not privately enforceable. See Texas Border Coal. v. Napolitano, 614 F. Supp. 2d 54, (D.D.C. 2009) (concluding that “no private

28 right of action or private remedy has been created” to enforce this section).

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1 561 U.S. 477, 495-96 (2010). And it ensures that the President is principally

2 responsible for the actions of the Executive Branch and directly accountable to the

3 people through the political process. Id. at 3154-55; Morrison v. Olson, 487 U.S. 654,

4 689-90 (1988); Clinton v. Jones, 520 U.S. 681, 712-13 (1997) (Breyer, J., concurring).

5

As an initial matter, Plaintiff’s attempt to plead a Take Care Clause claim fails

6 because Plaintiff challenges a decision by the Secretary of Homeland Security, not an

7 action of the President. The Clause does not direct the President’s subordinate

8 officers in the performance of their duties. See Free Enterprise Fund, 561 U.S. at 493

9 (“It is his responsibility to take care that the laws be faithfully executed. The buck

10 stops with the President, in Harry Truman’s famous phrase.”); cf. Printz v. United

11 States, 521 U.S. 898, 922-23 (1997) (concluding that if Congress could “simply

12 requir[e] state officials to execute [federal] laws” this would reduce the President’s

13 Take Care Clause power). Any claim that might be attempted under the Take Care

14 Clause would necessarily require the courts to evaluate the decisions and actions of

15 the President himself, not others in the Executive Branch. And Plaintiff identifies no

16 cause of action to raise such a claim. The Take Care Clause itself does not furnish a

17 right to sue to challenge the President’s action or inaction. Cf. Armstrong v.

18 Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1383-84 (2015) (concluding that the

19 Supremacy Clause does not provide a cause of action).

20

Moreover, a case, such as this one, that seeks relief against an agency rather

21 than the President asks the Court to direct the actions of subordinate officers on the

22 basis of the Take Care Clause, which would require exercising authority that the

23 Clause commits to the President himself rather than to courts. The courts lack

24 jurisdiction over a claim where there is “a textually demonstrable constitutional

25 commitment of the issue to a coordinate political department.” Nixon v. United States,

26 506 U.S. 224, 228 (1993) (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)); see also

27 Heckler v. Chaney, 470 US 821, 830 (1985). And even if the suit had been brought

28

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1 against the President, courts have no authority to second-guess “discretion[ary]” acts

2 taken by the President “in the performance of his official duties.” Mississippi v.

3 Johnson, 71 U.S. 475, 501 (1867); see also Franklin v. Massachusetts, 505 U.S. 788,

4 827 (1992) (Scalia, J., concurring in part). The courts’ refusal to police the

5 President’s discretionary acts is “a functionally mandated incident of the President’s

6 unique office, rooted in the constitutional tradition of the separation of powers and

7 supported by our history.” Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982). The

8 Supreme Court has held that “the duty of the President in the exercise of the power to

9 see that the laws are faithfully executed” is not judicially enforceable, adding that any

10 attempt by the judiciary to oversee the President’s Take Care authority “might be

11 justly characterized . . . as ‘an absurd and excessive extravagance.’” Mississippi, 71

12 U.S. at 499 (refusing to review President’s enforcement of Reconstruction Acts given

13 the “general principles which forbid judicial interference with the exercise of

14 Executive discretion”). See also Dalton v. Specter, 511 U.S. 462, 474-75 (1994)

15 (refusing to address whether President improperly closed a military base because

16 judicial review “is not available” when a statute or constitutional provision “commits

17 the decision to the discretion of the President”).

18

No court has ever treated the Take Care Clause as basis for affirmative relief.22

19 But even if this Court entered those uncharted constitutional waters here, Plaintiff’s

20 theory is incoherent. Any judicial enforcement of this Clause would necessarily be

21

22 22 Most discussions of the Take Care Clause has emphasized the need to protect the

23

President’s Article II power from intrusion by Congress or the courts. See, e.g., Free Enterprise Fund, 561 U.S. at 484 (“The President cannot ‘take Care that the Laws be

24 faithfully executed’ if he cannot oversee the faithfulness of the officers who execute

them.”); Lujan v. Defenders of Wildlife, 504 U.S. 555, 577 (1992) (holding that it 25 would be improper for the courts to take over the President’s duty to “take Care that

26

the Laws be faithfully executed”); Allen v. Wright, 468 U.S. 737, 761 (1984) (declining to recognize Article III standing where adjudication of claim would

27 interfere with President’s Take Care Clause authority); Franklin, 505 U.S. at 827-28

(Scalia, J., concurring) (stating that Court cannot order relief that would interfere with

28 President’s constitutional responsibility under the Take Care Clause).

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1 driven by separation of powers concerns. But under the IIRIRA, the Executive

2 Branch does not waive laws on its own initiative. Instead, Congress itself instructed

3 that laws be waived under certain conditions and provided the Secretary with “sole

4 discretion” to determine when those conditions had been met. IIRIRA § 102(c)(1).

5 Thus, the waiver itself should be considered “faithful execut[ion]” of an act of

6 Congress, not a breach of any duty to enforce the laws. This is especially the case

7 here because Congress targeted for waiver the very laws Plaintiff wishes had not been

8 waived—NEPA and the ESA. See Pub. L. No. 104-208, Div. C, Title I § 102(c)

9 (providing for waiver of “the Endangered Species Act of 1973 and the National

10 Environmental Policy Act of 1969” as originally enacted in 1996); Pub. L. No. 109-

11 13, Div. B, Title I § 102 (expanding waiver authority to “all legal requirements”).

12

Finally, Plaintiff also attempts to recast its ultra vires challenge as a claim

13 under the Take Care Clause, suggesting that the “conditions and limitations of IIRIRA

14 section 102 itself” should be enforced on constitutional grounds. 2d Am. Compl. ¶

15 145. But a claim that Executive Branch officials have violated a statutory command

16 does not give rise to a constitutional claim. “The distinction between claims that an

17 official exceeded his statutory authority, on the one hand, and claims that he acted in

18 violation of the Constitution, on the other, is . . . well established.” Dalton, 511 U.S.

19 at 474. “[C]laims simply alleging that the President has exceeded his statutory

20 authority are not ‘constitutional’ claims[] subject to judicial review.” Id. at 473.

21 Thus, respondents cannot transform their garden-variety ultra vires claim into a

22 constitutional one by alleging that the Secretary’s specific use of a statutory authority

23 constitutes failure to comply with a statute and amounts to a violation of President’s

24 constitutional responsibilities under Article II.

25

B. The Secretary’s Action Does Not Violate the Nondelegation Doctrine

(Count 3) 26

27

Plaintiff claims that § 102(c) “unconstitutionally delegates legislative power to

the DHS Secretary.” 2d Am. Compl. ¶ 151. The nondelegation doctrine is rooted in 28

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1 “the notion of separation of powers,” but few laws violate it; the Supreme Court “has

2 only twice invalidated legislation under this doctrine, the last time being [more than]

3 seventy-five years ago.” In re Nat’l Security Agency Telecomm. Records Litig.

4 (hereinafter “Telecomm. Records”), 671 F.3d 881, 895 (9th Cir. 2011). Every court to

5 consider a nondelegation challenge to § 102(c) has rejected it, beginning with a

6 decision in this district. See Sierra Club, 2005 U.S. Dist. LEXIS 44244, at *16-25;

7 see also County of El Paso, 2008 WL 4372693, at *2-4; Save Our Heritage, 533 F.

8 Supp. 2d at 63-64; Defenders of Wildlife, 527 F. Supp. 2d at 126-29. Plaintiff’s claim

9 must likewise fail.

10

It is well established that, because Congress could not function without the

11 ability to delegate, Congress may authorize another branch of government to carry out

12 its law-making authority so long as it provides “an intelligible principle to which the

13 person or body authorized to [act] is directed to conform.” J.W. Hampton, Jr. Co. v.

14 United States, 276 U.S. 394, 409 (1928). To provide a constitutionally permissible

15 “intelligible principle,” Congress need only “clearly delineate[] the general policy, the

16 public agency which is to apply it, and the boundaries of this delegated authority.”

17 Mistretta v. United States, 488 U.S. 361, 372-73 (1989). Statutory limitations on

18 judicial review are irrelevant. See United States v. Bozarov, 974 F.2d 1037, 1041-45

19 (9th Cir. 1992) (rejecting the argument that “a delegation of legislative power that is

20 statutorily exempt from judicial review violate[s] the nondelegation doctrine”).

21

Section 102(c) meets each of these three requirements and is thus

22 constitutionally sufficient. Section 102(a) delineates a “general policy” of installing

23 infrastructure to “deter illegal crossings in areas of high illegal entry into the United

24 States,” which § 102(c) incorporates by tying the waiver authority to “expeditious

25 construction of barriers and roads under this section.” This establishes a policy to

26 guide the Secretary: that improving border protection by expediting the construction

27 of necessary barriers and roads is a high Congressional priority. The Act also

28

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1 specifies who is to “apply” the general policy—“the Secretary of Homeland Security.”

2 IIRIRA § 102(c)(1). The “boundaries of this delegated authority” are also clearly

3 delineated. The authority may only be exercised to “waive all legal requirements [the]

4 Secretary . . . determines necessary to ensure expeditious construction of the barriers

5 and roads under this section.” Id. § 102(c)(1) (emphasis added). Thus, the waiver

6 authority is limited to construction along the border for which a necessity

7 determination has been made. The Supreme Court has held that a “necessity”

8 standard “fits comfortably within the scope of discretion permitted by [its] precedent.”

9 Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 475-76 (2001); see also Touby v.

10 United States, 500 U.S. 160, 163 (1991) (approving delegation to the Attorney

11 General the authority to designate a drug as a controlled substance for purposes of

12 criminal drug enforcement if doing so was “necessary to avoid an imminent hazard to

13 the public safety”). And each district court to consider § 102(c) has found the

14 necessity determination to provide a sufficient boundary. See Sierra Club, 2005 U.S.

15 Dist. LEXIS 44244, at *21; County of El Paso, 2008 WL 4372693, at *3-4; Save Our

16 Heritage, 533 F. Supp. 2d at 63-64; Defenders of Wildlife, 527 F. Supp. 2d at 127-28.

17

Moreover, Congress may delegate in even broader terms than generally used

18 where the delegation relates to powers over which the Executive Branch already

19 maintains significant independent control. See Loving v. United States, 517 U.S. 748,

20 772 (1996) (finding that delegations may be broader “where the entity exercising the

21 delegated authority itself possesses independent authority over the subject matter”);

22 Telecomm. Records, 671 F.3d at 897 (holding that when the delegation “arises within

23 the realm of national security . . . the intelligible principle standard need not be overly

24 rigid”). The IIRIRA, which relates to matters of immigration policy, foreign affairs,

25 and national security, falls squarely within these areas. See, e.g., Knauff v.

26 Shaughnessy, 338 U.S. 537, 542-43 (1950) (“The exclusion of aliens is a fundamental

27 act of sovereignty . . . [and] is inherent in the executive power to control the foreign

28

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1 affairs of the nation.”); Sierra Club, 2005 U.S. Dist. LEXIS 44244, at *22-23 (“[T]he

2 Executive Branch has independent and significant constitutional authority [over]

3 immigration and border control enforcement and national security.”).

4

In sum, the Act contains a sufficiently intelligible principle to survive

5 constitutional scrutiny and Plaintiff’s claims to the contrary should be dismissed.

6

C. The Secretary’s Action Does Not Violate Article I § 7 (Count 4)

7

Plaintiff argues that § 102(c) and the waiver determination at issue here “are

8 unconstitutional infringements upon the lawmaking procedures required under Article

9 I, § 7 of the Constitution.” 2d Am. Compl. ¶ 157. Clauses 2 and 3 of Article I, § 7 are

10 called the “presentment clauses.” See United States v. Scampini, 911 F.2d 350, 351

11 (9th Cir. 1990). They “require that all legislation be presented to the President so that

12 he may have the opportunity to exercise his veto power before any legislation

13 becomes law.” Id. Plaintiff does not argue that IIRIRA did not conform to the

14 Presentment Clauses when it was enacted. Instead it argues that permitting existing

15 statutes to be waived for certain purposes constitutes “amendment and repeal of

16 statutes.” 2d Am. Compl. ¶ 155 (quoting INS v. Chada, 462 U.S. 919, 954 (1983)).

17 Plaintiff’s claim is meritless, and both courts to consider such a challenge to § 102(c)

18 have rejected it. See County of El Paso, 2008 WL 4372693, at *6-7; Defenders of

19 Wildlife, 527 F. Supp. 2d at 123-26.

20

The Presentment Clauses require a specific process, prohibiting legislative

21 action that does not conform to it. Thus, the Constitution does not authorize the

22 President “to enact, to amend, or to repeal statutes.” Clinton v. City of New York, 524

23 U.S. 417, 438 (1998). In Clinton, the Supreme Court struck down the Line Item Veto

24 Act, which gave the President the authority to “cancel” certain appropriated spending

25 items that had been passed by Congress. 524 U.S. at 438. That statute failed because

26 cancellation prevented the items “from having legal force or effect” and thus in “both

27 legal and practical effect, the President has amended two Acts of Congress by

28

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1 repealing a portion of each.” Id.; see also id. at 447 (holding it improper to give the

2 President “unilateral power to change the text of duly enacted statutes”).

3

Plaintiff’s claim fails because waiver of a legal requirement for a specific

4 purpose is not amendment or repeal of a statute. As Defenders of Wildlife explained:

5

[t]he Secretary has no authority to alter the text of any statute, repeal any

law, or cancel any statutory provision, in whole or in part. Each of the []

6

laws waived by the Secretary . . . retains the same legal force and effect

7

as it had when it was passed by both houses of Congress and presented to

the President. 8

9 527 F. Supp. 2d at 124. Under the waiver, the waived statutes are inapplicable only

10 with respect to the construction of barriers and roads along the relevant portion of the

11 border. The statutes retain their general legal force and effect because the Secretary’s

12 waiver extends to only a tiny fraction of the universe of cases to which NEPA and

13 similar statutes apply. Plaintiff has identified no basis to conclude that such waivers

14 violate the Constitution. See Acree v. Republic of Iraq, 370 F.3d 41, 64 n.3 (D.C. Cir.

15 2004) (Roberts, J., concurring) (dismissing constitutional challenge to statute

16 permitting President to make inapplicable to Iraq “any other provision of law that

17 applies to countries that have supported terrorism” because the authorized actions “are

18 a far cry from the line-item veto at issue in Clinton, and are instead akin to the waivers

19 that the President is routinely empowered to make in other areas, particularly in the

20 realm of foreign policy”).

21

Indeed, this waiver authority is similar to an “executive grant of immunity or

22 waiver of claim” which “has never been recognized as a form of legislative repeal.”

23 See Telecomm. Records, 671 F.3d at 895. The Ninth Circuit rejected a Presentment

24 Clause challenge to 50 U.S.C. § 1885a, which permits the Attorney General “to

25 immunize from suit telecommunications companies that had cooperated with the

26 government’s intelligence gathering.” Id. at 891. Even though such grants of

27 immunity prevent civil actions to enforce the otherwise applicable “law governing

28 electronic surveillance,” the Circuit found no constitutional defect because “[t]he law

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1 remains as it was when Congress approved it and the President signed it.” Id. at 894-

2 95. The Circuit also supported its conclusion by noting that the authority for

3 executive officials to “trigger a defense or immunity for a third party,” is “not

4 uncommon.” Id. at 895. Here, similarly, the § 102(c) authority in one statute granting

5 authority to waive application of one or more other statutes is not uncommon. See

6 Defenders of Wildlife, 527 F. Supp. 2d at 125 & n.5 (collecting some of the “myriad

7 examples of waiver provisions in federal statutes”); see also, e.g., 25 U.S.C. § 3406

8 (authorizing “Secretary of each Federal agency providing funds” for program to waive

9 “any statutory requirement, regulation, policy, or procedure promulgated by that

10 agency”); Pub. L. No. 109-171, § 5107(a)(2), 120 Stat. 42 (Feb. 6, 2006) (providing

11 for waiver of “such provisions of law . . . as are necessary to implement [specified

12 statutory provision] on a timely basis”).

13

Nor does § 102(c) raise the same separation of powers concerns that were at

14 issue in Clinton. There, the Supreme Court was concerned that the President’s line-

15 item veto was “rejecting the policy judgment made by Congress and relying on his

16 own policy judgment.” 524 U.S. at 444. But here, Congress unmistakably expressed

17 its policy judgment that construction of the barriers and roads along the border was of

18 such importance that it justified waiving application of environmental and other laws

19 to the extent those laws threaten expeditious construction. See IIRIRA § 102(c)(1).

20 Thus, in sharp contrast to Clinton, there is no question that the Secretary is executing

21 (rather than rejecting) the will of Congress. Cf. Smith v. Fed. Reserve Bank of N.Y.,

22 280 F. Supp. 2d 314, 324 (S.D.N.Y. 2003) (upholding waiver where “[u]nlike in

23 Clinton” the President “is carrying out, not rejecting, a policy made by Congress”).

24

Accordingly, each of Plaintiff’s constitutional claims should be dismissed.

25 IV. PLAINTIFF’S NEPA AND ESA CLAIMS MUST BE

DISMISSED (COUNTS 5-6) 26

27

Because the waiver determination pursuant to IIRIRA § 102(c)(1) is valid and

survives any available judicial review as discussed above, see supra, Arg. §§ I-III, 28

Defs.’ Motion to Dismiss

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1 both NEPA and the ESA have been waived as to the challenged projects being

2 conducted by Defendants:

3

[P]ursuant to section 102(c)(1) of IIRIRA, I hereby waive in their

4

entirety, with respect to the construction of roads and physical barriers . . . in the Project Area, the following statutes . . . : The National

5

Environmental Policy Act (Pub. L. 91-190, 83 Stat. 852 (Jan. 1, 1970)

6

(42 U.S.C. 4321 et seq.)); the Endangered Species Act (Pub. L. 93-205, 87 Stat. 884 (Dec. 28, 1973) (16 U.S.C. 1531 et seq.)) . . . .

7 82 Fed. Reg. at 35985. Accordingly, the claims in Counts 5 and 6 have been

8 extinguished and the Court lacks jurisdiction to grant any relief pursuant to those

9 statutes. See Sierra Club, 2005 U.S. Dist. LEXIS at *7, 39-40.

10

In addition, the Court lacks jurisdiction to consider the ESA claims in Count 6

11 because Plaintiff failed to provide the mandatory notice prerequisite to suit. Plaintiff’s

12 ESA claim must be dismissed for lack of jurisdiction because Plaintiff did not provide

13 “written notice of the violation” to the “Secretary [of Interior], and to any alleged

14 violator of any such provision or regulation,” prior to filing this suit. 16 U.S.C.

15 § 1540(g)(2)(A); Sw. Ctr. for Biological Diversity v. U.S. Bureau of Reclamation, 143

16 F.3d 515, 520 (9th Cir. 1998). Plaintiffs can fulfill this sixty-day notice requirement

17 only by sending a notice after the alleged violation has occurred. See Friends of

18 Animals v. Ashe, No. 13-1607, 2014 WL 2812313, at *7 (D.D.C. 2014) (holding that

19 “pre-violation” notices of intent to sue are “insufficient to satisfy the ESA’s 60-day

20 notice requirement”); Kern Cnty. Farm Bureau v. Badgley, No. 02-5376, 2002 WL

21 34236869, at *13 (E.D. Cal. Oct. 10, 2002) (“[O]ne cannot give notice of a violation

22 which has not yet happened.”). Here, Plaintiff has not complied with this requirement

23 because it prematurely sent the purported notice letters in June and July 2017, see 2d

24 Am. Compl. ¶ 5, before any violation had occurred. These purported notice letters

25 preceded the award of contracts for the challenged projects and the commencement of

26 construction. See Press Releases (Sept. 7 & Aug. 31, 2017). In light of the fact that

27 the ESA claim has been extinguished by the waiver, the Court need not reach this

28

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1 notice issue. However, it does provide an additional ground for dismissal and

2 Defendants can provide more fulsome briefing on the issue if the Court so wishes.

3 V. PLAINTIFF’S APA CLAIM MUST BE DISMISSED BECAUSE THE FOIA PROVIDES AN ADEQUATE REMEDY (COUNT 7, IN PART)
4

The APA does not provide jurisdiction or a cause of action for relief related to 5

6 the processing of Plaintiff’s FOIA requests because the FOIA itself provides an

7 adequate remedy. “[F]ederal courts lack jurisdiction over APA challenges whenever

Congress has provided another ‘adequate remedy.’” Brem–Air Disposal v. Cohen, 8

9 156 F.3d 1002, 1004 (9th Cir. 1998) (quoting 5 U.S.C. § 704); 5 U.S.C. § 704

10 (subjecting to judicial review “final agency action for which there is no other adequate

remedy in a court”). “If a plaintiff can bring suit against the responsible federal 11

12 agencies under a citizen-suit provision, this action precludes an additional suit under

13 the APA.” Brem, 156 F.3d at 1005; see also Bowen v. Massachusetts, 487 U.S. 879,

903 (1988) (“Congress did not intend the general grant of review in the APA to 14

15 duplicate existing procedures for review of agency action.”). Because the FOIA

contains a citizen-suit provision and provides an adequate remedy, a “related APA 16

claim will be precluded.” Bedgood v. Mabus, No. 15-454, 2015 WL 3647933, at *4-5 17

18 (S.D. Cal. June 8, 2015). See also Animal Legal Defense Fund v. U.S. Dep’t of

Agriculture, No. 17-949, 2017 WL 3478848, at *3-4 (N.D. Cal. Aug. 14, 2017); Lion 19

Raisins, Inc. v. U.S. Dep’t of Agriculture, 636 F. Supp. 2d 1081, 1115 (E.D. Cal. 20

21 2009). Accordingly, the APA claims in Count 7 must be dismissed for lack of subject

matter jurisdiction. 22

23

CONCLUSION

24

For the foregoing reasons, the Court should dismiss Counts 1 through 6 in full,

25 and Count 7 in part for lack of jurisdiction.

26

27

28

Defs.’ Motion to Dismiss

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1 Dated: October 6, 2017 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Defs.’ Motion to Dismiss
30

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General Civil Division
JOHN R. TYLER Assistant Director
/s/ Galen N. Thorp GALEN N. THORP Senior Counsel
Attorneys for Federal Defendants

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1

2

APPENDIX: 8 U.S.C. § 1103 NOTE (IN RELEVANT PART)

3

(Codifying Illegal Immigration Reform and Immigrant Responsibility Act of 1996, § 102, as amended)

4

5 IMPROVEMENT OF BARRIERS AT BORDER

6 Pub. L. 104–208, div. C, title I, § 102(a)–(c), Sept. 30, 1996, 110 Stat. 3009–554, 7 3009–555, as amended by Pub. L. 109–13, div. B, title I, § 102, May 11, 2005, 119
Stat. 306; Pub. L. 109–367, § 3, Oct. 26, 2006, 120 Stat. 2638; Pub. L. 110–161, div. 8 E, title V, § 564(a), Dec. 26, 2007, 121 Stat. 2090, provided that:
9 “(a) IN GENERAL.—The Secretary of Homeland Security shall take such actions as 10 may be necessary to install additional physical barriers and roads (including the
removal of obstacles to detection of illegal entrants) in the vicinity of the United 11 States border to deter illegal crossings in areas of high illegal entry into the United 12 States.

13 “(b) CONSTRUCTION OF FENCING AND ROAD IMPROVEMENTS ALONG THE 14 BORDER.—

15

“(1) ADDITIONAL FENCING ALONG SOUTHWEST BORDER.—

16

“(A) REINFORCED FENCING.—In carrying out subsection (a), the

Secretary of Homeland Security shall construct reinforced fencing along

17

not less than 700 miles of the southwest border where fencing would be

18

most practical and effective and provide for the installation of additional

physical barriers, roads, lighting, cameras, and sensors to gain

19

operational control of the southwest border.

20

“(B) PRIORITY AREAS.—In carrying out this section [amending this

21

section],* the Secretary of Homeland Security shall—

22

“(i) identify the 370 miles, or other mileage determined by the

23

Secretary, whose authority to determine other mileage shall expire on December 31, 2008, along the southwest border where fencing

24

would be most practical and effective in deterring smugglers and

25

26

* Each of the brackets in the text reflects editorial notes by Office of Law Revision Counsel in preparing the text for publication in the U.S. Code. See Office of Law

27 Revision Counsel, Detailed Guide to the United States Code Content and Features, § II(A) (link) (“The third type of [editorial] change involves inserting bracketed citation

28 information in the text following a cross reference.”).

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1

aliens attempting to gain illegal entry into the United States; and

2

“(ii) not later than December 31, 2008, complete construction of

3

reinforced fencing along the miles identified under clause (i).

4

“(C) CONSULTATION.—

5

“(i) IN GENERAL.—In carrying out this section, the Secretary of

Homeland Security shall consult with the Secretary of the Interior,

6

the Secretary of Agriculture, States, local governments, Indian

7

tribes, and property owners in the United States to minimize the

impact on the environment, culture, commerce, and quality of life

8

for the communities and residents located near the sites at which

9

such fencing is to be constructed.

10

“(ii) SAVINGS PROVISION.—Nothing in this subparagraph may be

11

construed to—

12

“(I) create or negate any right of action for a State, local

government, or other person or entity affected by this

13

subsection; or

14

“(II) affect the eminent domain laws of the United States or

15

of any State.

16

“(D) LIMITATION ON REQUIREMENTS.—Notwithstanding subparagraph

(A), nothing in this paragraph shall require the Secretary of Homeland

17

Security to install fencing, physical barriers, roads, lighting, cameras, and

18

sensors in a particular location along an international border of the

United States, if the Secretary determines that the use or placement of

19

such resources is not the most appropriate means to achieve and maintain

20

operational control over the international border at such location.

21

“(2) PROMPT ACQUISITION OF NECESSARY EASEMENTS.—The Attorney

22

General, acting under the authority conferred in section 103(b) of the

Immigration and Nationality Act [8 U.S.C. 1103(b)] (as inserted by subsection

23

(d)), shall promptly acquire such easements as may be necessary to carry out

24

this subsection and shall commence construction of fences immediately

following such acquisition (or conclusion of portions thereof).

25

“(3) SAFETY FEATURES.—The Attorney General, while constructing the

26

additional fencing under this subsection, shall incorporate such safety features

27

into the design of the fence system as are necessary to ensure the well-being of

border patrol agents deployed within or in near proximity to the system.

28

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1

“(4) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be

appropriated such sums as may be necessary to carry out this subsection.

2

Amounts appropriated under this paragraph are authorized to remain available

3

until expended.

4 “(c) WAIVER.—

5

“(1) IN GENERAL.—Notwithstanding any other provision of law, the Secretary

6

of Homeland Security shall have the authority to waive all legal requirements

such Secretary, in such Secretary’s sole discretion, determines necessary to

7

ensure expeditious construction of the barriers and roads under this section

8

[amending this section]. Any such decision by the Secretary shall be effective

upon being published in the Federal Register.

9

“(2) FEDERAL COURT REVIEW.— 10

11

“(A) IN GENERAL.—The district courts of the United States shall have exclusive jurisdiction to hear all causes or claims arising from any action

12

undertaken, or any decision made, by the Secretary of Homeland Security

13

pursuant to paragraph (1). A cause of action or claim may only be brought alleging a violation of the Constitution of the United States. The

14

court shall not have jurisdiction to hear any claim not specified in this

15

subparagraph.

16

“(B) TIME FOR FILING OF COMPLAINT.—Any cause or claim brought

pursuant to subparagraph (A) shall be filed not later than 60 days after

17

the date of the action or decision made by the Secretary of Homeland

18

Security. A claim shall be barred unless it is filed within the time

specified.

19

“(C) ABILITY TO SEEK APPELLATE REVIEW.—An interlocutory or final

20

judgment, decree, or order of the district court may be reviewed only

21

upon petition for a writ of certiorari to the Supreme Court of the United

States.”

22

23

24

25

26

27

28

Defs.’ Motion to Dismiss

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 Case 3:17-cv-01215-GPC-WVG Document 28-1 Filed 11/22/17 PageID.550 Page 1 of 51

1 Brian Segee (Bar No. 200795)

2 Center for Biological Diversity

3

111 W. Topa Topa Street Ojai, CA 93023

4 T: (805) 750-8852

5 bsegee@biologicaldiversity.org

6 Brendan Cummings (Bar No. 193952)

7

Anchun Jean Su (Bar No. 285167) Center for Biological Diversity

8 1212 Broadway, Suite 800

9

Oakland, CA 94612 T: (510) 844-7100; F: (510) 844-7150

10 bcummings@biologicaldiversity.org; jsu@biologicaldiversity.org

11 John Peter Rose (Bar No. 285819)

12 Center for Biological Diversity

13

660 South Figueroa Street, Suite 1000 Los Angeles, CA 90017

14 jrose@biologicaldiversity.org

15 Attorneys for Plaintiff

16

UNITED STATES DISTRICT COURT

17

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

18

19

20

21

IN RE: BORDER

22

INFRASTRUCTURE ENVIRONMENTAL

23

LITIGATION

24

25

Case No. 3:17-cv-01215-GPC-WVG Consolidated with Case No. 17-cv-01873-GPC-WVG Case No. 17-cv-01911-GPC-WVG
Plaintiff Center for Biological Diversity’s Memorandum of Points and Authorities in Support of Cross Motion for Summary Judgment and in Opposition to Defendants’ Motion for Summary Judgment

26

Date: February 9, 2018, Time: 1:30 p.m.

27

Courtroom: 2D

28

Before Hon. Gonzalo P. Curiel

Case 3:17-cv-01215-GPC-WVG Document 28-1 Filed 11/22/17 PageID.551 Page 2 of 51

1

TABLE OF CONTENTS

2 TABLE OF CONTENTS ..........................................................................................ii

3 TABLE OF AUTHORITIES....................................................................................iv 4 5 INTRODUCTION ..................................................................................................... 1

6 LEGAL BACKGROUND......................................................................................... 3

7

A. Illegal Immigration Reform and Immigrant Responsibility Act of

8

1996....................................................................................................... 3

9 B. The 2005 REAL ID Act Amendments to IIRIRA §102(c)................... 4
10

11

C. The 2006 Secure Fence Act Amendments to IIRIRA §102(b) ............ 5

12

D. The 2008 Consolidated Appropriations Act Amendments to

13

IIRIRA §102(b)..................................................................................... 6

14 FACTUAL BACKGROUND.................................................................................... 6

15

A. Prior IIRIRA §102(c) Waivers to Expedite Construction of

16

Border Barriers Required Under IIRIRA §102(b)................................ 6

17

B. The January 25, 2017 Executive Order on Border Security and

18

Immigration Enforcement Improvement .............................................. 8

19

C. The San Diego Border Wall Prototype and Border Fence

20

Replacement Projects ............................................................................ 8

21

D. The August 2, 2017 IIRIRA §102(c) Waiver for “Various Border

22

Infrastructure Projects” in a Fifteen Mile “Project Area” .................... 9

23

24

E. Procedural History .............................................................................. 10

25 ARGUMENT........................................................................................................... 10

26

I. The Court Has Jurisdiction to Hear Plaintiff’s Ultra Vires Claim ..... 10

27

28

II. The IIIRIRA §102(c) Waiver Authority Does Not Extend to the

Memorandum of Points and Authorities ii

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1

Border Wall Prototype and Border Fence Replacement Projects, and thus the August 2 Waiver is Ultra Vires ...................................... 15

2

3

A. IIRIRA §102’s Language and Structure Demonstrate that the Scope of the §102(c) Waiver Authority is Limited to

4

Specific Border Barriers Required Under §102(b)................... 16

5

B. IIRIRA’s Legislative History Demonstrates that Congress

6

Intended to Limit the Scope of the §102(c) Waiver Authority

7

to Specific Border Barriers Required Under §102(b) .............. 22

8

C. §102(c)’s Requirement the Barriers Be “Necessary to Ensure

9

Expeditious Construction” Demonstrates That Congress

Intended to Limit the Scope of the §102(c) Waiver to

10

Specific Border Barriers Required Under §102(b)................... 25

11

D. Even if the Waiver Authority is Not Limited to Projects Under

12

§102(b), the August 2 Waiver is Not Authorized by IIRIRA .. 28

13

14

E. Because the August 2 Waiver is Ultra Vires, it is Void........... 29

15

III. The August 2 Waiver and the IIRIRA §102(c) Waiver Are

Unconstitutional .................................................................................. 29

16

17

A. The Secretary’s August 2 Waiver Violates the Take Care

Clause (Article II, §3) ............................................................... 30

18

19

B. Section 102(c) and the August 2 Waiver Violate the ..................

Presentment Clause (Article I, §7) ........................................... 32

20

21

C. Section 102(c), as Demonstrated by the August 2 Waiver,

Violates the Nondelegation Doctrine ....................................... 35

22

23

IV. Plaintiff Has Standing ......................................................................... 37

24

V. Judgment Should be Entered for Plaintiff on the NEPA and

25

ESA Claims......................................................................................... 39

26 CONCLUSION........................................................................................................ 40 27

28

Memorandum of Points and Authorities iii

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1

TABLE OF AUTHORITIES

2

CASES

3

4

American School of Magnetic Healing v. McAnnulty, 187 U.S. 94 (1902) .......................................................................................... 12, 15

5

6

Amgen v. Smith, 357 F.3d 103 (D.C. Cir. 2004) .............................................................................. 13

7

8

Arizona Dream Act Coalition v. Brewer, 855 F.3d 957 (9th Cir. 2017)................................................................................. 31

9

10

Assiniboine & Sioux Tribes of Fort Peck Indian Reservation v. Board of Oil & Gas Conservation,

11 792 F.2d 782 (9th Cir. 1986)................................................................................. 13

12 Baeta v. Sonchik,
13 273 F.3d 1261 (9th Cir. 2001) .............................................................................. 19

14 Blodgett v. Holden,
15 275 U.S. 142 (1927) .............................................................................................. 29

16

17

Board of Governors Fed. Reserve Sys. v. MCorp Fin. Inc., 502 U.S. 32 (1991) ...........................................................................................14-15

18

19

Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667 (1986) .............................................................................................. 10

20

21

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) .............................................................................................. 11

22

23

Clinton v. City of New York, 524 U.S. 417 (1988) .........................................................................................32-33

24

25

Colo. Envtl. Coal. v. Office of Legacy Mgmt., 819 F. Supp. 2d 1193 (D. Colo. 2011).................................................................. 40

26

27

Columbia Riverkeeper v. U.S. Coast Guard, 761 F.3d 1084 (9th Cir. 2014) .........................................................................10-11

28

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1

County of El Paso v. Chertoff, 2008 U.S. Dist. LEXIS 83045 (W.D. Tex. Aug. 29, 2008).............................35-36

2

3

Dart v. United States, 848 F.2d 217 (D.C. Cir. 1988) .............................................................11-12, 14, 15

4

5

Defenders of Wildlife v. Chertoff, 527 F. Supp. 2d 119 (D.D.C. 2007) ..................................................... 33-34, 35-36

6

7

Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141 (9th Cir. 2000) .............................................................................. 38

8

9 Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568 (1988) .............................................................................................. 29
10

11 El Paso Natural Gas Co. v. United States, 632 F.3d 1272 (D.C. Cir. 2011) ............................................................................ 11
12

13 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) .............................................................................................. 16
14

15 Federal Energy Administration v. Algonquin SNG, Inc., 426 U.S. 548 (1976) .............................................................................................. 23
16

17 Franklin v. Massachusetts, 505 U.S. 788 (1992) .............................................................................................. 30
18

19 Free Enterprise Fund v. Public Co. Accounting Bd., 561 U.S. 477 (2010) .............................................................................................. 31
20

21 Friends of the Earth, Inc. v. Laidlaw Envt’l Services, Inc., 528 U.S. 167 (2000) .............................................................................................. 38
22

23 Gozlon-Peretz v. United States, 24 498 U.S. 395 (1991) .............................................................................................. 18

25 Gutierrez de Martinez v. Lamagno, 26 515 U.S. 417 (1995) .............................................................................................. 22

27 Hanauer v. Reich, 28 82 F.3d 1304 (4th Cir. 1996)................................................................................. 15

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1 Hawaii v. Trump, 2 859 F.3d 741 (9th Cir. 2017)................................................................................. 12

3 Hooks v. Ktsap Tenant Support Servs., Inc., 4 816 F.3d 550 (9th Cir. 2016)................................................................................. 27

5 INS v. Chadha, 6 462 U.S. 919 (1983) .........................................................................................32-33

7 Klamath-Siskiyou Midlands Ctr. v. MacWhorter, 8 797 F.3d 645 (9th Cir. 2015)................................................................................. 39

9 Koons Buick Pontiac GMC v. Nigh,
10 543 U.S. 50 (2004) ................................................................................................ 16

11 Leedom v. Kyne,
12 358 U.S. 184 (1958) .........................................................................................14-15

13

14

Lindahl v. OPM, 470 U.S. 768 (1985) .............................................................................................. 14

15

16

Loving v. United States, 517 U.S. 748 (1996) .............................................................................................. 37

17

18

Marbled Murrelet v. Babbitt, 83 F.3d 1068 (9th Cir. 1996)............................................................................39-40

19

20

Marbury v. Madison, 5 U.S. 137, 177 (1803) .................................................................................... 12, 30

21

22

Medellin v. Texas, 552 U.S. 491 (2008) .............................................................................................. 32

23

24

Mississippi v. Johnson, 71 U.S. 475 (1867) ................................................................................................ 30

25

26

Mistretta v. United States, 488 U.S. 361 (1989) .............................................................................................. 35

27

28

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1

Mount Graham Red Squirrel v. Madigan, 954 F.2d 1441 (9th Cir. 1992).........................................................................23-24

2

3

Myers v. United States, 272 U.S. 52 (1926) ................................................................................................ 31

4

5

Nadler v. Civil Aeronautics Bd., 657 F.2d 453 (D.C. Cir. 1981) .............................................................................. 13

6

7

Northstar Financial Advisors, Inc. v. Schwab Invs., 615 F.3d 1106 (9th Cir. 2010) .............................................................................. 23

8

9 Nyunt v. Chairman, Broad Bd. of Governors, 589 F.3d 445 (D.C. Cir. 2009) .............................................................................. 15
10

11 Owens v. Hills, 450 F. Supp. 218 (N.D. Ill. 1978) ......................................................................... 13
12

13 Printz v. United States, 521 U.S. 898 (1997) .............................................................................................. 31
14

15 Save Our Heritage v. Gonzales, 533 F. Supp. 2d 58 (D.D.C. 2008) ...................................................................35-36
16

17 Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384 (1951) .............................................................................................. 23
18

19 Sierra Club v. Ashcroft, 2005 U.S. Dist. LEXIS 44244 (S.D. Cal. Dec. 13, 2005) .....................4, 16, 35-36
20

21 Sissko v. Rocha, 412 F.3d 1021 (9th Cir. 2005) .............................................................................. 19
22

23 Spencer Enterprises, Inc. v. United States, 24 345 F.3d 683 (9th Cir. 2003)................................................................................. 12

25 Touby v. United States, 26 500 U.S. 160 (1991) ........................................................................................ 35, 37

27 Trans Alaska Pipeline Rate Cases, 28 436 U.S. 631 (1978) .........................................................................................12-13

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1 United States v. Bozarov, 2 974 F.2d 1037 (9th Cir. 1992) ...................................................................13-14, 15

3 United States v. Lee, 4 106 U.S. 196 (1882) .............................................................................................. 31

5 United States v. Texas, 6 136 S. Ct. 906 (2016) (order granting certiorari) .................................................... 31

7 Whitman v. Am. Trucking Ass’ns, 8 531 U.S. 457 (2001) ........................................................................................ 35, 37

9 Youngstown Sheet & Tube Co. v. Sawyer,
10 343 U.S. 579 (1952) ........................................................................................ 30, 32 11
U.S. CONSTITUTION 12 13 Article I, § 7 (Presentment Clause) ................................................................3, 32-24
Article II, § 3 (Take Care Clause) ..................................................................3, 30-32 14 Nondelegation Doctrine (Separation of Powers)............................................3, 35-37 15
STATUTES 16 17 Illegal Immigration Reform and Immigrant Responsibility Act of 1996

18 P.L. 104-208, div. C., codified at 8 U.S.C. §1103 note............................................. 3

19 §102(a) ...........................................................................................................passim

20

§102(b) ........................................................................................................... passim §102(b)(1)(A)-(B) ................................................................................................... 6

21 §102(b)(1)(A)........................................................................................................ 19 §102(b)(1)(B) ........................................................................................................ 19
22 §102(b)(1)(B)(i) .................................................................................................... 27

23 §102(b)(1)(B)(ii) ................................................................................................... 27

24

§102(b)(1)(C) ........................................................................................................ 19 §102(b)(2)-(4) ....................................................................................................... 18

25 §102(b)(2) ............................................................................................................. 18

26

§102(b)(3) ............................................................................................................. 18 §102(b)(4) ............................................................................................................. 18

27 §102(c) ...........................................................................................................passim 28 §102(c)(1).............................................................................................................. 11

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1 §102(c)(2).............................................................................................................. 11

2 Other Immigration and National Security Statutes

3 H.R. 418 (REAL ID Act)................................................................................. 1, 4, 22

4 Immigration and Nationality Act, §103(a)(5), 8 U.S.C. §1103(a)(5) ............3, 19-20

5

Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, P.L. 109-13, div. B ............................. 4,5, 22, 24

6 Secure Fence Act, P.L. 109-367 ............................................................................ 4, 5

7

former §102(b)(1)(A)(i)-(v) ............................................................................ 5 former § 102(b)(1)(B)(i)-(ii) ........................................................................... 5

8 2008 Consolidated Appropriations Act, P.L. 110-161, div. E ...................4, 6, 26-27

9 NEPA, ESA, and FOIA (Laws with Claims at Issue in this Lawsuit)
10
11 ESA, 16 U.S.C. § 1531 et seq...................................................................... 1, 2, 5, 10 §1540(g)(2)(A)(i) .................................................................................................. 39
12 FOIA, 5 U.S.C. §552 ........................................................................................... 2, 10 13 NEPA, 42 U.S.C. § 4321 et seq. ................................................................. 1, 2, 5, 10

14 Laws Subject to §102(c) Waivers

15 American Religious Freedom Act, 42 U.S.C. § 1996 ............................................... 7
16 Archeological Resources Protection Act, 16 U.S.C. § 470aa et seq. ........................ 7

17 Clean Air Act, 42 U.S.C. § 7401 et seq............................................................... 7, 34

18

Clean Water Act, 33 U.S.C. § 1251 et seq. ......................................................... 7, 34 Coastal Zone Management Act, 16 U.S.C. § 1541 et seq. ...................................... 25

19 National Forest Management Act, 16 U.S.C. § 1600 et seq. .................................... 7 National Historic Preservation Act, Pub. Law 89-665 .............................................. 7
20 Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq. ................................................. 7

21 Native American Graves Protection and Repatriation Act, 42 U.S.C. § 2000bb ..... 7 Otay Mountain Wilderness Act of 1999, Pub. L. 106-145.............................7, 34-35
22 Safe Drinking Water Act, 42 U.S.C. § 300f et seq................................................... 7

23 Wild and Scenic Rivers Act, 16 U.S.C. § 1281 et seq. ............................................. 7 24 Wilderness Act, 16 U.S.C. § 1131 et seq. ................................................................. 7

25 Other Laws

26 5 U.S.C. § 8347(c) ................................................................................................... 14 27 50 U.S.C. § 2412(a) ................................................................................................. 14

28

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1

LEGISLATIVE HISTORY

2 H.R. Rep. 109-72 at 171 .......................................................................................... 25

3

S. Rep. No. 752, 79th Cong., 1st Sess. 26 (1945) (Senate Judiciary Committee report accompanying the APA) ............................... 12

4 151 Cong. Rec. H453-471 (daily ed. Feb. 9, 2005) .......................................... 22, 24

5

151 Cong. Rec. H454 (daily ed., Feb. 9, 2005) (Statement of Rep. Sensenbrenner)....................................................................... 24

6 151 Cong. Rec. H471 (daily ed., Feb. 9, 2005)

7

(Statement of Rep. Hoekstra)................................................................................ 24 151 Cong. Rec. H527-566 (daily ed. February 10, 2005) ....................................... 22

8 151 Cong. Rec. S4820 (daily ed. May 10, 2005)

9 (Statement of Senator Byrd) ............................................................................22-23

10

MISCELLANEOUS

11 §102(c) Determinations
12

13 San Diego Secondary and Triple Fence Completion, 14 70 Fed. Reg. 55,622 (Sept. 22, 2005)(13.9 miles).................................................. 7

15 Barry M. Goldwater Range, Arizona, 16 72 Fed. Reg. 2,535 (Jan. 19, 2007)(37.3 miles)...................................................... 7

17 San Pedro Riparian National Conservation Area, Arizona, 18 72 Fed. Reg. 60,870 (Oct. 26, 2007)(5.5 miles) ..................................................... 7

19 Hidalgo County, Texas, 20 73 Fed. Reg. 19,077 (April 3, 2008)(corrected on April 8, 2008)(21 miles) ......... 7

21 Various Areas in Texas, New Mexico, Arizona, and California, 22 73 Fed. Reg. 18,293 (April 3, 2008)(546.5 miles).................................................. 7

23 San Diego Infrastructure, 24 82 Fed. Reg. 35,984 (August 2, 2017)...........................................................passim

25 Treatises

26 1 Ronald D. Rotunda & John E. Nowak, 27 Treatise on Constitutional Law § 7.2(a) (2016).................................................... 30

28

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1 Law Reviews 2

3

Kate R. Bowers, “Saying What the Law Isn’t: Legislative Delegations of Waiver Authority in Environmental Laws,”

4 34 Harv. Envtl. L. Rev. 257, 290-291 (2010) ..................................................33-34

5 Jack Goldsmith & John F. Manning, “The Protean Take Care Clause,” 6 164 U. Pa. L. Rev. 1835, 1837 (2016) .................................................................. 31

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

INTRODUCTION

2

Nearly a decade after its last use, the Department of Homeland Security

3 (“DHS”) Secretary on August 2, 2017 invoked §102(c) of the Illegal Immigration

4 Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) to waive the

5 National Environmental Policy Act (“NEPA”), Endangered Species Act (“ESA”),

6 and more than 30 additional laws intended to protect our Nation’s natural

7 resources and federal lands, its water and air, its cultural sites, and even citizens’

8 freedom of religious practice in relation to the San Diego border wall prototype

9 and replacement projects. This August 2 determination is both ultra vires to the

10 DHS Secretary’s delegated authority and unconstitutional, and thus must be

11 reversed and remanded with instructions to DHS that it may only proceed with the

12 border wall prototype and replacements projects after full compliance with all

13 legal requirements.

14

As initially enacted in 1996, the IIRIRA §102(c) waiver authority was

15 limited to NEPA and the ESA, but that authority was expanded under the 2005

16 REAL ID Act to allow the waiver of any law. Congress specifically intended the

17 expansion of the waiver authority to speed the completion of the San Diego

18 double and triple layer fence required under §102(b), which the agency expedited

19 through a September 2005 waiver. However, DHS subsequently used §102(c) on

20 four additional occasions between January 2007 and March 2008 to expedite

21 construction of hundreds of additional miles of border barriers required under the

22 2006 Secure Fence Act, which dramatically expanded the specific border fencing

23 required under §102(b). By 2011, the agency had constructed more than 700

24 miles of border barriers and considered its statutory border fence obligations

25 fulfilled. Congress has not subsequently required any new or additional border

26 barriers via amendments to IIRIRA or otherwise.

27

This prolonged period of relative quiescence was shattered when, within

28 days of taking office, on January 25, 2017 President Trump issued the “Border

Memorandum of Points and Authorities 1

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1 Security and Immigration Enforcement Improvement” Executive Order (“E.O.”),

2 directing DHS to construct a “secure, contiguous, and impassable physical

3 barrier” along the entirety of the nearly 2,000 mile-long U.S.-Mexico border.

4 Although Congress is yet to approve or fund any of the new proposed border wall,

5 the administration has taken steps to implement the E.O. through the two projects

6 at issue in this litigation, both located in San Diego—the border wall prototype

7 project and the border fence replacement project.

8

DHS did not release any information to the public regarding either of these

9 projects, and when it also did not respond to requests for information pursuant to

10 the Freedom of Information Act (“FOIA”), the Center for Biological Diversity

11 filed suit in June 2017. In light of the many environmental risks of the projects,

12 and the environmental resources that could be impacted—including numerous

13 imperiled species and rare coastal and wetland habitat—the Center amended its

14 lawsuit to add NEPA and ESA claims in July. DHS then issued the August 2

15 §102(c) waiver.

16

The Trump administration’s attempt to revive the §102(c) waiver authority

17 must be rejected as ultra vires. As detailed in this brief, the language, structure,

18 and legislative history of IIRIRA and its amendments demonstrate that the scope

19 of the §102(c) authority must be limited to specific border barriers identified for

20 construction under §102(b), rather than serving as a roving, perpetual, and

21 unchecked license for DHS to waive laws for any border project, anywhere on any

22 border (northern or southern), at any time from now to eternity. Quite simply, the

23 border wall prototype and replacement projects are not required under §102(b),

24 and thus are not subject to the §102(c) waiver authority and any such invocation

25 of a waiver is ultra vires.

26

Alternatively, to the degree this Court finds the August 2 waiver to fall

27 within the scope of the §102(c) waiver authority, that waiver and the underlying

28 waiver authority are unconstitutional, as they run afoul of the Take Care and

Memorandum of Points and Authorities 2

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1 Presentment clauses of the Constitution, as well the principle of Separation of

2 Powers and the Nondelegation Doctrine.

3

The Center should be granted summary judgment on its claims that the

4 August 2 waiver was ultra vires, and therefore invalid, or in the alternative, that

5 both the August 2 waiver and the underlying statutory waiver authority of §102(c)

6 are unconstitutional.1

7

LEGAL BACKGROUND

8 A. Illegal Immigration Reform and Immigrant Responsibility Act of 1996

9

Section 102 of the 1996 IIRIRA was the first legislative enactment under

10 which Congress specifically directed the construction of “physical barriers and

11 roads.”2 P.L. 104-208, div. C., codified at 8 U.S.C. §1103 note.3 IIRIRA §102

12 remains the primary federal statute specifically addressing border barriers,

13 pursuant to three main provisions: (i) §102(a) (describing the purpose of the

14 statute); (ii) §102(b) (providing specific mandates and deadlines for border barrier

15 construction); and (iii) §102(c) (legal waiver authority).

16

Section 102(a), which remains substantively the same as originally enacted

17

18 1 Pursuant to the October 24, 2017 scheduling order (ECF No. 22), DHS’s motion

19 to dismiss was converted into a motion for partial summary judgment. This brief is both an opposition to that motion and a cross-motion for partial summary
20 judgment. The Center’s FOIA claim (Claim VII) is not subject to these cross-

21 motions and will be resolved either via settlement or separate briefing. However, DHS seeks dismissal of the Administrative Procedure Act (“APA”) portion of the
22 FOIA claim that is intertwined with the statutory FOIA claim. DHS Br. at 40.

23 The Center believes that this issue should be addressed by the Court only if the statutory FOIA claim is not otherwise resolved via settlement.
24 2 This authority was originally delegated to the Attorney General, but is now

25

delegated to DHS. See Second Amended Complaint (ECF No. 16) at ¶ 57 n. 1. 3 Prior to IIRIRA’s enactment, the authority to construct border barriers derived

26 from the general statutory responsibility of the Attorney General (now the DHS

27 Secretary) to “guard the boundaries and borders of the United States against the

28

illegal entry of aliens.” Immigration and Nationality Act, §103(a)(5), 8 U.S.C. §1103(a)(5). That authority continues to exist independent of IIRIRA.

Memorandum of Points and Authorities 3

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1 in 1996, gives the DHS Secretary the general directive to “take such actions as

2 may be necessary to install additional physical barriers and roads . . . in the

3 vicinity of the United States border to deter illegal crossings in areas of high

4 illegal entry into the United States.” Section 102(b), in turn, “carr[ies] out

5 subsection (a)” by identifying specific border barriers to be constructed,

6 establishing deadlines for the construction of such barriers, authorizing the

7 acquisition of easements and the appropriation of necessary funds in relation to

8 the specified border barriers, and other requirements. Finally, §102(c) provides

9 the DHS Secretary with authority to waive legal requirements that the Secretary

10 “determines necessary to ensure expeditious construction of the barriers and roads

11 under this section.”

12

In the one case to consider the scope of the §102(c) waiver authority, the

13 court concluded that the authority is limited to the specific barriers identified at

14 §102(b), which at the time of that decision was the completion of a double and

15 triple layer border fence to further fortify the then existing 14-mile long San

16 Diego “primary” border fence that had been completed in 1993. Sierra Club v.

17 Ashcroft, 2005 U.S. Dist. LEXIS 44244, *21 (S.D. Cal. Dec. 13, 2005) (finding

18 that “boundaries [of §102(c)] are waiver of laws and regulations which the DHS

19 Secretary determines impede completion of this particular 14-mile California

20 border Triple Fence authorized by IIRIRA.”) (emphasis in original).

21

IIRIRA §102 has been amended by three subsequent laws: the 2005 REAL

22 ID Act, the 2006 Secure Fence Act, and the 2008 Consolidated Appropriations

23 Act, the first of which modified the waiver authority of §102(c), while the second

24 and third changed the specific mandates of §102(b).

25 B. The 2005 REAL ID Act Amendments to IIRIRA §102(c)

26

Enacted in 2005 as an unrelated legislative rider to the “Emergency

27 Supplemental Appropriations Act for Defense, the Global War on Terror, and

28 Tsunami Relief, 2005,” (“Supplemental Appropriations Act”) section 102 of the

Memorandum of Points and Authorities 4

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1 REAL ID Act amended the §102(c) IIRIRA waiver provision, expanding the

2 waiver authority, which was initially limited to NEPA and the ESA, to permit the

3 DHS Secretary “to waive all legal requirements such Secretary, in such

4 Secretary’s sole discretion, determines necessary to ensure expeditious

5 construction of the barriers and roads under this section.” P.L. 109-13, div. B.

6 Section 102 of the REAL ID Act also amended the §102(c) waiver authority to

7 restrict judicial review in the following respects: limiting “all causes or claims”

8 arising from any waiver determination made by the DHS Secretary to alleged

9 constitutional violations; requiring any such constitutional challenge to be filed

10 not later than 60 days after the Secretary’s determination; and eliminating

11 appellate court review of the district court’s decision on the alleged constitutional

12 violations, instead only permitting review upon a writ of certiorari to the Supreme

13 Court. The focus of §102(b) of IIRIRA solely on the San Diego fence remained

14 unchanged by this amendment.

15 C. The 2006 Secure Fence Act Amendments to IIRIRA §102(b)

16

Section 3 of the 2006 Secure Fence Act (“Construction of Fencing and

17 Security Improvements in Border Area from Pacific Ocean to Gulf of Mexico”)

18 significantly expanded upon IIRIRA §102(b) and its previous sole focus on the

19 14-mile San Diego double and triple layer fence construction. P.L. 109-367.

20 Under these amendments, Congress directed DHS to “provide for at least 2 layers

21 of reinforced fencing [and] the installation of additional physical barriers, roads,

22 lighting, cameras, and sensors” in five specific segments along the U.S.-Mexico

23 border totaling approximately 850 miles. IIRIRA, former §102(b)(1)(A)(i)-(v).

24 Section 3 further amended IIRIRA section 102(b) to add the specific requirement

25 that two of these segments be considered “priority areas,” with construction

26 deadlines of May 30, 2008 and December 31, 2008. Former IIRIRA §

27 102(b)(1)(B)(i)-(ii). Congress did not specifically consider the impact of the

28 Secure Fence Act amendments on the scope of the IIRIRA §102(c) waiver.

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1 D. 2

The 2008 Consolidated Appropriations Act Amendments to IIRIRA §102(b)

3

Just over a year after enactment of the Secure Fence Act, Section 564 of the

4 2008 Consolidated Appropriations Act again amended §102(b) of the IIRIRA to

5 scale back DHS’s duties with respect to border barriers and roads that had been

6 mandated under the 2006 Secure Fence Act amendments. P.L. 110-161, div. E.

7 These amendments—which remain the law today—include: (1) eliminating the

8 requirement that border barriers be built in any specific locations, and instead

9 specifying that such barriers be placed “along not less than 700 miles of the

10 southwest border where fencing would be most practical and effective”; (2)

11 eliminating the requirement of double-layered fencing; and (3) amending the

12 “priority areas” requirement to direct that DHS identify and construct 370 miles of

13 border barriers by December 31, 2008. IIRIRA § 102(b)(1)(A)-(B).4 Congress

14 did not specifically consider the impact of the Consolidated Appropriations Act

15 amendments on the scope of the IIRIRA §102(c) waiver.

16 17 A.
18

FACTUAL BACKGROUND Prior IIRIRA §102(c) Waivers to Expedite Construction of Border Barriers Required Under IIRIRA §102(b) In response to IIRIRA and its amendments, DHS has greatly increased the

19 extent of border barriers and roads along the U.S.-Mexico border. The

20 overwhelming majority of border fence construction was approved during the

21 second term of the George W. Bush Administration, and was facilitated by five

22 “notices of determination” in the Federal Register invoking the IIRIRA §102(c) 23

24 4 In addition, the 2008 Appropriations Act also added a new consultation

25 requirement to §102(b), directing that DHS “shall consult with the Secretary of the Interior, the Secretary of Agriculture, States, local governments, Indian tribes,
26 and property owners in the United States to minimize the impact on the

27 environment, culture, commerce, and quality of life for the communities and

28

residents located near the sites where” border barriers are constructed. IIRIRA §102(b)(1)(C).

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1 authority to waive in their entirety a total of more than 35 laws5 that would have

2 otherwise applied to construction of border fencing and roads.6

3

Collectively, the five waivers applied to approximately 624.5 miles of

4 border barrier and road construction. As of February 2017, DHS had constructed

5 a total of 654 miles of “primary” border barriers, an additional 50 miles of double

6 and triple-layered border barriers (for a total of 704 miles of barriers), and

7 approximately 5,000 miles of roads along the U.S.-Mexico border. See

8 “Southwest border security: Additional actions needed to better assess fencing’s

9 contributions to operations and provide guidance for identifying capability gaps.”

10 U.S. Government Accountability Office (“GAO”) Report 17-331, a report to

11 congressional requesters (February 2017).7

12

Regardless of whether the total mileage of existing barriers is calculated as

13 654 or 704 miles, DHS has taken the position that IIRIRA §102(b) allows less

14 than 700 miles of fencing to be constructed in the agency’s discretion, and that it

15

16 5 All five of these determinations waived application of NEPA and the ESA, as

17 well as the Clean Water Act, 33 U.S.C. § 1251 et seq.; National Historic Preservation Act, Pub. Law 89-665; Migratory Bird Treaty Act, 16 U.S.C. § 703
18 et seq.; Clean Air Act, 42 U.S.C. § 7401 et seq.; Archeological Resources

19 Protection Act, 16 U.S.C. § 470aa et seq.; Safe Drinking Water Act, 42 U.S.C. §

20

300f et seq.; Wild and Scenic Rivers Act, 16 U.S.C. § 1281 et seq.; Wilderness Act, 16 U.S.C. § 1131 et seq.; National Forest Management Act, 16 U.S.C. § 1600

21 et seq.; Native American Graves Protection and Repatriation Act, 42 U.S.C. § 2000bb; and American Religious Freedom Act, 42 U.S.C. § 1996, as well as
22 numerous additional laws.

23 6 These waivers applied to border barrier and road construction in the following

24

areas: (i) San Diego, 70 Fed. Reg. 55,622 (Sept. 22, 2005)(13.9 miles); (ii) Barry M. Goldwater Range, Arizona, 72 Fed. Reg. 2,535 (Jan. 19, 2007)(37.3 miles);

25 (iii) San Pedro Riparian National Conservation Area (administered by U.S.

26

Bureau of Land Management), Arizona, 72 Fed. Reg. 60,870 (Oct. 26, 2007)(5.5 miles); (iv) Hidalgo County, Texas, 73 Fed. Reg. 19,077 (April 3, 2008)(corrected

27 on April 8, 2008)(21 miles); (v) Various Areas in Texas, New Mexico, Arizona,

28

and California, 73 Fed. Reg. 18,293 (April 3, 2008)(546.5 miles). 7 Available at http://www.gao.gov/assets/690/682838.pdf.

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1 has met its statutory mandate for border barrier construction:

2

From fiscal years 2005 through 2015, CBP increased the total miles of

3

primary border fencing on the southwest border from 119 miles to 654 miles—including 354 miles of primary pedestrian fencing and 300

4

miles of primary vehicle fencing. With 654 miles of primary fencing currently deployed, CBP officials have stated that CBP is in

5

compliance with its legal requirements for the construction of the southwest border fencing on the substantial discretion provided to the

6

Secretary of Homeland Security to determine the appropriate

placement of fencing.

7

8 Id., at p. 8. In short, DHS has completed the construction mandates of §102(b).

9

B. The January 25, 2017 Executive Order on Border Security and

10

Immigration Enforcement Improvement

11

The January 25, 2017 E.O. directs DHS to construct a “secure, contiguous,

12 and impassable physical barrier” along the entirety of the nearly 2,000 mile-long

13 U.S.-Mexico border, and defines that structure to mean “a contiguous, physical

14 wall or similarly secure, contiguous, and impassable physical barrier.” By its

15 plain terms, the E.O. breaks with the previous and longstanding DHS position that

16 additional border barrier construction is unnecessary and that DHS had already

17 fulfilled its statutory obligations under IIRIRA §102(b).

18

C. The San Diego Border Wall Prototype and Border Fence

19

Replacement Projects

20

The border wall prototype project is the culmination of two Requests for

21 Proposals (“RFPs”) issued pursuant to the E.O. in March 2017—one for a “Solid

22 Concrete Border Wall Prototype” and the second for an “Other Border Wall

23 Prototype.” The core of the “threshold requirements” is that the wall design “shall

24 be physically imposing in height,” with a preference for a 30-foot high wall.

25 Eight prototypes were recently constructed, and according to the Center’s

26 information and belief, are currently being tested. The prototype location is within

27 or in close proximity to seasonal wetland vernal pool habitat, and other occupied

28

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1 endangered species habitat.

2

The border wall replacement project would replace the existing 14-mile

3 primary and secondary fencing in San Diego County, within habitat for numerous

4 ESA-listed endangered and threatened species, and their designated critical

5 habitat. The proposed 30-foot high replacement wall is notably higher than the

6 existing border fencing, and may be constructed of impermeable concrete, both of

7 which would exacerbate environmental impacts of the existing border fencing.

8 Even though this region is impacted by prior border fence construction and other

9 activities and infrastructure, the border wall replacement project is a major

10 construction project with significant environmental impacts.

11

D. The August 2, 2017 IIRIRA §102(c) Waiver for “Various Border

12

Infrastructure Projects” in a Fifteen Mile “Project Area”

13

On August 2, 2017, the DHS Secretary issued the first determination

14 purporting to invoke IIRIRA § 102(c) in nearly a decade, waiving the application

15 of NEPA, the ESA, and more than 30 additional laws not at issue in this lawsuit to

16 “various border infrastructure projects” in the “project area.” 82 Fed. Reg. 35,984-

17 85. The determination defines the “project area” as “an approximately fifteen

18 mile segment of the border within the San Diego Sector that starts at the Pacific

19 Ocean and extends eastward … to approximately one mile east of Border

20 Monument 251.” 82 Fed. Reg. at 35,985. DHS did not provide any prior notice,

21 conduct any public meetings, or consult with any stakeholders prior to issuing the

22 August 2 waiver.

23

The border wall prototype and replacement projects are only listed as

24 “examples” of the “various border infrastructure projects” DHS “will immediately

25 implement” within the fifteen mile segment in the waiver determination. Id. at

26 35984. It thus appears that DHS intends to apply the waiver to projects which are

27 not described in the determination, and for which plans may not even yet exist.

28 Although existing border fencing covers much of the “project area,” the

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1 easternmost portion is unfenced and within habitat for several endangered species.

2

E. Procedural History

3

In May 2017, the Center made requests pursuant to FOIA, 5 U.S.C. § 552,

4 from DHS and CBP for records related to the border wall prototype and

5 replacement projects and agency compliance with NEPA and the ESA. When the

6 agencies failed to provide a timely response, the Center filed the present case

7 (ECF No. 1), and subsequently amended the complaint to add NEPA claims (ECF

8 No. 6). Following the August 2, 2017 §102(c) waiver, the parties entered a

9 scheduling stipulation under which the Center filed its second amended complaint,

10 which alleges ultra vires and constitutional claims against the August 2 waiver,

11 and also adds ESA claims (ECF No. 16). The Center’s case has now been

12 consolidated with subsequent challenges to the August 2 waiver by Defenders of

13 Wildlife, et al., and the State of California (ECF No. 22).

14 15 I.

ARGUMENT The Court Has Jurisdiction to Hear the Center’s Ultra Vires Claim

16

As demonstrated in Section II below, the August 2 waiver is ultra vires as it

17 exceeds the authority granted to DHS under IIRIRA §102. However, DHS asserts

18 that this Court can never reach the Center’s ultra vires claims because §102(c)

19 precludes judicial review. DHS Br. at 9-15. Defendants are simply wrong. While

20 §102(c) may define certain limits on the timing and process of judicial review, it

21 cannot be read to preclude review of claims that DHS acted beyond the bounds of

22 its delegated authority.

23

Interpreting the scope of the IIRIRA §102(c) waiver provision “begin[s]

24 with the strong presumption that Congress intends judicial review of

25 administrative action.” Bowen v. Michigan Academy of Family Physicians, 476 26 U.S. 667, 670 (1986).8 Critically, this strong presumption applies even to a

27 8 Ignoring this clearly articulated and longstanding Supreme Court precedent,
28 DHS asserts a presumption of nonreviewability based on Columbia Riverkeeper v.

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1 provision such as §102(c)(2), “where the statute expressly prohibits judicial

2 review—in other words, the presumption dictates that such provisions must be

3 read narrowly.” El Paso Natural Gas Co. v. United States, 632 F.3d 1272, 1276

4 (D.C. Cir. 2011); cf. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.

5 402, 410 (1971) (APA exception for judicial review of actions “committed to

6 agency discretion” is “a very narrow exception”).9

7

Here, the Center does not dispute that Congress has demonstrated its intent

8 to overcome the presumption favoring judicial review of non-constitutional claims

9 regarding a waiver issued pursuant to IIRIRA §102(c)(1):

10

(2) Federal Court Review. (A) In General. The district courts . . . shall have exclusive jurisdiction to hear all causes or claims arising from

11

any action undertaken, or any decision made, by the [DHS Secretary]

12

pursuant to paragraph (1). A cause of action or claim may only be brought alleging a violation of the Constitution . . . The Court shall

13

not have jurisdiction to hear any claim not specified in this subparagraph.

14 IIRIRA §102(c)(2) (emphasis added). But as detailed in section II below, the

15 August 2 waiver was not authorized by §102 and therefore is not a decision made

16 “pursuant to” IIRIRA §102(c)(1). Accordingly, the August 2 waiver is ultra vires 17 and subject to review by this court, and the §102(c)(2) judicial review restrictions

18 are simply inapplicable.

19

Stated another way, DHS cannot hide behind the judicial review restrictions

20 of §102(c)(2) in order to escape review of whether the August 2 waiver was in

21 fact properly within the scope of §102(c)(1) to begin with. As the D.C. Circuit

22 explained in upholding jurisdiction for an ultra vires claim in Dart v. United 23 States, 848 F.2d 217 at 224 (D.C. Cir. 1988), “the Veterans’ Administrator cannot 24 issue oil drilling permits—nor can the Secretary of Labor rescind television

25

26

U.S. Coast Guard, 761 F.3d 1084, 1091 (9th Cir. 2014). That case, however, involved plaintiffs’ attempt to invoke original jurisdiction at the appellate level,

27 not whether any jurisdiction existed to begin with. DHS Br. at 9-10. 9 Unless stated otherwise, internal citations and quotations within cases are
28 omitted.

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1 licenses—and expect to escape judicial review by hiding behind a finality clause.”

2

In Dart, the court considered whether a citizen charged with violating an

3 export law could bring a claim challenging the enforcement action

4 notwithstanding a preclusive statutory review provision. In holding that ultra

5 vires review was available, the court found that the “presumption of judicial

6 review is particularly strong where an agency is alleged to have acted beyond its

7 authority.” 848 F.2d at 223.

8

The necessity of ultra vires judicial review of agency action was recognized

9 by the Supreme Court long before Dart, in American School of Magnetic Healing

10 v. McAnnulty, 187 U.S. 94, 110 (1902) (upholding jurisdiction over claim that

11 postmaster acted ultra vires). The doctrine was reaffirmed during passage of the

12 Administrative Procedure Act. See S. Rep. No. 752, 79th Cong., 1st Sess. 26

13 (1945) (Senate Judiciary Committee report accompanying the APA) (“It has never

14 been the policy of Congress to prevent the administration of its own statutes from

15 being judicially confined to the scope of authority granted or to the objectives

16 specified”) (quoted in Dart, 848 F.2d at 224). And it has been recently invoked to

17 hear the legality of other actions taken by the current administration. Hawaii v.

18 Trump, 859 F.3d 741, 768-69 (9th Cir. 2017) (“We do not abdicate the judicial

19 role, and we affirm our obligation ‘to say what the law is’ in this case”) (quoting

20 Marbury v. Madison, 5 U.S. 137, 177 (1803)(vacated as moot).

21

Moreover, courts have repeatedly and specifically applied the presumption

22 of ultra vires review to actions purportedly taken pursuant to statutory provisions

23 expressly precluding judicial review such as that in §102(c). In interpreting

24 another provision of IIRIRA limiting judicial review, for example, the Ninth

25 Circuit noted that “[e]ven if a statute gives the Attorney General discretion . . . the

26 courts retain jurisdiction to review whether a particular decision is ultra vires [to]

27 the statute in question.” Spencer Enterprises, Inc. v. United States, 345 F.3d 683,

28 689 (9th Cir. 2003); Trans Alaska Pipeline Rate Cases, 436 U.S. 631, 638 n. 17

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1 (1978) (“[A]lthough we reaffirm our previous holding that courts may not

2 independently appraise the reasonableness of rates, no such appraisal is involved

3 in inquiring whether the Commission has overstepped the bounds of its authority.

4 Therefore, we conclude that Congress did not mean to cut off judicial review for

5 such limited purposes”); United States v. Bozarov, 974 F.2d 1037, 1044 n. 8 (9th

6 Cir. 1992)(“claims that an agency acted outside the scope of its delegated

7 authority” are reviewable under the Dart standard).10

8

As explained by the D.C. Circuit:

9

If a no-review provision shields particular types of [executive] action,

10

a court may not inquire whether a challenged [executive] decision is arbitrary, capricious, or procedurally defective, but it must determine

11

whether the challenged . . . action is of the sort shielded from review. Otherwise, agencies could characterize reviewable or unauthorized

12

action as falling within the scope of no-review provisions whose application to such action Congress did not intend.

13

14 Amgen v. Smith, 357 F.3d 103, 113 (D.C. Cir. 2004).

15

Despite this extensive precedent, DHS asserts that the Center cannot bring

16 an ultra vires challenge because §102(c) uses an “unambiguous ‘shall not have

17 jurisdiction’ formulation,” and “Congress could not have been clearer in stating

18 that all non-constitutional claims are barred.” DHS Br. at 11-12. In Bozarov,

19 however, the Ninth Circuit held precisely the opposite, concluding that a claim

20

21 10 See also Assiniboine & Sioux Tribes of Fort Peck Indian Reservation v. Board of Oil & Gas Conservation, 792 F.2d 782, 791-92 (9th Cir. 1986) (“Courts have
22 widely held that claims that an agency has acted outside its statutory authority are

23 reviewable even though its decision on the merits might be unreviewable as

24

committed to agency discretion.”); Nadler v. Civil Aeronautics Bd., 657 F.2d 453, 456 (D.C. Cir. 1981) (“Where, as here, the claim is that it was beyond the

25 province of the agency to adopt as a rule a certain suspension policy, the

26

reviewability-of-suspension orders doctrine is simply inapplicable”); Owens v. Hills, 450 F. Supp. 218, 221 (N.D. Ill. 1978) (“Concepts of ‘separation of powers’

27 and ‘unlawful delegation of legislative power’ mandate judicial review of certain

28

agency action even in the face of a judicial review preclusion statute to insure that an agency has not clearly violated its statutory duty.”)

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1 that an agency acted outside the scope of its delegated authority would be

2 reviewable despite a judicial review provision even more preclusive than IIRIRA

3 §102(c), stating simply that the Secretary of Commerce’s denial of a validated

4 export license “shall be final and is not subject to judicial review.” 974 F.2d at

5 1039 (quoting 50 U.S.C. § 2412(e)). In that case, the court rejected plaintiff’s

6 constitutional claim that the law in question violated the nondelegation doctrine,

7 but noted that “we believe that claims that the Secretary acted in excess of his

8 delegated authority under the EAA are … reviewable.” Id. at 1044-45.

9

As detailed in Dart, numerous courts in addition to Bozarov have

10 consistently permitted judicial review of facial and ultra vires claims despite

11 provisions even more preclusive than §102(c). In the disability rights case

12 Lindahl v. OPM, for example, the Supreme Court found that judicial review was

13 available to determine whether there had been “a misconstruction of the governing

14 statute,” despite a finality provision stating that the decisions at issue “shall be

15 final and conclusive and shall not be subject to review.” 470 U.S. 768, 791

16 (1985)(quoting 5 U.S.C. § 8347(c)). The Dart court further noted that several

17 Circuits have held veterans’ benefit law permits review of regulations that

18 allegedly violate the statute despite “sweeping preclusion language” providing

19 that any decision involving benefits “shall be final and conclusive and no other

20 official or any court of the United States shall have power or jurisdiction to review

21 any such decision by an action in the nature of mandamus or otherwise.” 848

22 F.2d at 225. The same applies here, and §102(c)(2) cannot be held to bar the

23 Center from alleging an ultra vires claim in this case.

24

In another variation on the “plain language” argument, DHS states that

25 “Plaintiff cannot evade this clear jurisdictional limitation by citing the series of

26 cases applying Leedom v. Kyne,” because “Kyne does not apply where ‘Congress

27 has spoken clearly and directly’ to preclude review.” DHS Br. at 12 (quoting

28 Leedom v. Kyne, 358 U.S. 184 (1958)). In doing so, DHS places great emphasis

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1 on Board of Governors of the Fed. Reserve Sys. v. MCorp Fin. Inc., 502 U.S. 32

2 (1991), in which the court found that “the clarity of the congressional preclusion

3 of review” contrasted with implied review at issue in Kyne.

4

The Center, however, is not primarily relying upon the Kyne line of cases,

5 which generally involve “implied rather than express” preclusive language. Nyunt

6 v. Chairman, Broad Bd. of Governors, 589 F.3d 445, 449 (D.C. Cir. 2009).

7 Instead, plaintiff traces its ultra vires claim of jurisdiction to American School of

8 Magnetic Healing, as well as Dart and related cases that are specific to situations

9 in which Congress has expressly restricted judicial review. The Dart standard of

10 review was specifically endorsed by the Ninth Circuit in Bozarov, in which the

11 court also specifically stated that MCorp does not preclude claims that an agency

12 acted outside the scope of its delegated authority under statutory provisions

13 precluding judicial review:

14

The government suggested at oral argument that the Court’s recent

15

decision in [MCorp] means that claims that an agency acted outside the scope of its delegated authority are not reviewable if the statute

16

precludes judicial review. We do not believe that MCorp precludes this type of claim under the EAA. The Court emphasized that

17

preclusion of review was acceptable in part because the petitioner had a meaningful and adequate opportunity for judicial review of the

18

regulation that he argued was promulgated in excess of the agency’s statutory authority. The EAA presents an entirely different situation;

19

petitioners have no other opportunity to challenge regulations or their applications. We therefore believe that Dart still sets out the correct

20

standard to be applied to the EAA.

21 Bozarov, 974 F.2d at 1045 n. 8; see also Hanauer v. Reich, 82 F.3d 1304, 1309

22 (4th Cir. 1996) (citing Bozarov) (“The Ninth Circuit has explicitly rejected the

23 argument that under MCorp, a statute that generally precludes judicial review

24 necessarily precludes judicial review of claims that an agency exceeded the scope

25 of its delegated authority.”). In light of the above, the court has jurisdiction to

26 hear the Center’s ultra vires claim.

27 II. 28

The IIRIRA §102(c) Waiver Authority Does Not Extend to the Border Wall Prototype and Border Fence Replacement Projects, and thus the August 2 Waiver is Ultra Vires

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1

The core dispute between the parties is whether the waiver authority

2 contained in §102(c) is limited to those specific projects mandated by Congress in

3 §102(b) (and which have already been completed), as the Center contends, or

4 whether it is applicable to a much broader, unbounded and perpetual grant of

5 authority purportedly contained in §102(a), as DHS asserts. The plain language

6 and structure of the statute, its purpose and legislative history, as well as legal

7 precedent all dictate that the narrow reading advanced by the Center is the only

8 permissible interpretation of the statute. DHS’s interpretation, and consequently

9 the August 2 waiver issued based on that interpretation, must be rejected as ultra

10 vires.

11

A. IIRIRA §102’s Language and Structure Demonstrate that the

12

Scope of the §102(c) Waiver Authority is Limited to Specific Border Barriers Required Under §102(b)

13

“Statutory construction is a holistic endeavor.” Koons Buick Pontiac GMC

14 v. Nigh, 543 U.S. 50, 60 (2004). In order to determine how Congress has spoken

15 to the question at issue, a court should read the words of the statute “in their

16 context and with a view to their place in the overall statutory scheme.” FDA v.

17 Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000). In addition,

18 courts “must be guided to a degree by common sense as to the manner in which

19 Congress is likely to delegate a policy decision of such economic and political

20 magnitude to an administrative agency.” Id. Guided by these principles, the

21 authority granted to the DHS Secretary under IIRIRA §102(c) to waive all legal

22 requirements the Secretary “determines necessary to ensure expeditious

23 construction of the barriers and roads under this section” must be interpreted as

24 limited to specific border barriers mandated pursuant to §102(b).

25

In the sole judicial decision to address the scope of §102(c), a court in this

26 district reached precisely this conclusion, finding that the waiver’s reach was

27 limited to the completion of the San Diego 14-mile double and triple layer border

28 fence—the only specific fence segment required under §102(b) at that time. As

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1 stated in that case, which involved a challenge to the DHS Secretary’s first use of

2 the waiver authority:

3

[T]he ‘barriers and roads’ alluded to are in the same in both

4

articulations [as originally enacted in 1996 and as amended by the REAL ID Act of 2005] of Section 102(c): the Triple Fence project

5

located along the U.S.-Mexico border in the vicinity of San Diego . . .

Congress simply broadened the scope of the waiver authority of the

6

pre-existing delegation to ‘all laws,’ but again only for the narrow

7

purpose of expeditious completion of the Triple Fence authorized by the IIRIRA.

8 Sierra Club v. Ashcroft, 2005 U.S. Dist. LEXIS 44244 (S.D. Cal. Dec. 13, 2005)

9 at *19-20 (emphasis added). The court repeatedly and definitively emphasized

10 this limitation throughout the opinion. Id. at *20 (“[t]hose boundaries are waivers

11 of laws and regulations which the DHS Secretary determines impede construction

12 of this particular 14-mile California Triple Fence authorized by IIRIRA”)

13 (emphasis in original); id. at 37 n. 7 (“this legislation since its inception is highly

14 specific to a particular project in a specific location.”).11 The Court was so certain

15 of its interpretation that it declined to review legislative history. Id. at *32-33

16 (“congressional intent in the revision is clear from the subject matter of Section

17 102(c): expedite completion of the [San Diego] Triple Fence … the language of

18 the congressional enactment cannot be construed otherwise than as specifically

19 targeting the subject matter of this case.”).

20

Notwithstanding Sierra Club’s repeated and emphatic language limiting the

21 scope of the §102(c) waiver authority to construction required under §102(b)

22 (which at that time was only the San Diego Triple Fence), DHS describes the

23 projects covered by its August 2 waiver as falling “within the scope of § 102(a),

24 which gives the Secretary authority ‘to take such actions as may be necessary to

25 install additional physical barriers and roads.’” DHS Br. at 23. DHS further asserts

26 that the §102(c) waiver authority applies to the projects because the authority “by

27

28

11 As discussed in Section III, infra, the court also relied on this narrow interpretation in finding that the waiver did not violate the nondelegation doctrine.

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1 its plain terms . . . extends to any construction” proposed under §102 and that the

2 term “this section” under §102(c) “unambiguously refers to IIRIRA §102 as a

3 whole.” DHS Br. at 17. In doing so, DHS places particular emphasis on its

4 assertion that “[w]hen Congress wanted to identify a specific unit within §102, it

5 did so in the standardized format.” Id.

6

Presuming that Congress has intentionally adhered to the standardized

7 format for making internal references within §102, an analysis of the broader

8 “plain language” structure of §102 shows that DHS undermines its own argument.

9 For example, §102(b)(2)-(4), which address easements, safety features, and

10 appropriations, respectively, all specifically refer to “this subsection” (i.e. 11 subsection (b)). See §102(b)(2) (directing Attorney General12 to “promptly acquire

12 such easements as may be necessary to carry out this subsection”); §102(b)(3)

13 (directing Attorney General to “while constructing the additional fencing under

14 this subsection, incorporate such safety features into the design of the fence

15 system as are necessary to ensure the well-being of border patrol agents deployed

16 within or in near proximity”); §102(b)(4) (authorizing the appropriation of “such

17 sums as may be necessary to carry out this subsection.”).

18

Because Congress has provided these authorizations specific to §102(b), it

19 must be presumed that it did not provide those authorizations for actions taken

20 beyond §102(b). Gozlon-Peretz v. United States, 498 U.S. 395, 404 (1991)

21 (“Where Congress includes particular language in one section of a statute but

22 omits it in another section of the same Act, it is generally presumed that Congress

23 acts intentionally and purposely in the disparate inclusion or exclusion”). Without

24 appropriations, easements, or safety measures, border barriers cannot be

25 constructed, and DHS’s attempt to justify its expansive reading of §102(c) solely

26 on that provision’s reference to ‘this section’ collapses.

27 12 As these portions of §102(b) were not amended in the 2005 amendments they
28 refer to the Attorney General rather than the DHS Secretary.

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1

Other aspects of IIRIRA show that it is not the model of plain language

2 clarity that DHS represents it to be, further undermining the DHS’s contention

3 that §102(c)’s reference to “barriers and roads under this section” is

4 “unambiguous” and must be interpreted to apply to all actions taken under §102.

5 As one example of this legislative imprecision, the terms “section” and

6 “subsection” are used inconsistently under §102, with §102(b)(1)(A) addressing

7 “reinforced fencing” required to “carry[] out subsection(a),” while §102(b)(1)(B)

8 and §102(b)(1)(C) address “priority areas” of “carry[] out this section.”13

9

In addition to its plain meaning argument, DHS asserts that limiting the

10 §102(c) waiver authority to specific barriers identified in §102(b) is “highly

11 implausible” for four reasons, the first being that “when Congress identifies

12 certain specific applications of a general grant of authority, those specific

13 requirements cannot generally be understood to prohibit all other applications of

14 the general authority,” and the second and third related arguments that such a

15 reading would render §102(a) superfluous and that §102(b) does not foreclose

16 other applications of §102(a). DHS Br. at 18-21.14

17

DHS mischaracterizes the Center’s claim. The Center alleges, simply, that

18 the scope of the §102(c) waiver authority does not apply to the border wall

19 prototype or replacement projects, or to any other actions that are not mandated by

20 Congress pursuant to §102(b). The Center, however, does not claim that DHS

21 lacks authority to construct border barriers in San Diego or elsewhere.

22

Prior to IIRIRA’s enactment, the authority to construct border barriers

23 derived from the general statutory responsibility of the Attorney General (now the

24
25 13 One court interpreting IIRIRA bemoaned the “various jurisdictional Gordian knots” created by the law, and noted that the analysis was “further complicat[ed]”
26 by the REAL ID Act amendments. Baeta v. Sonchik, 273 F.3d 1261, 1263 (9th 27 Cir. 2001) (quoted in Sissko v. Rocha, 412 F.3d 1021, 1029 (9th Cir. 2005)).
14 The fourth (pertaining to legislative history) is addressed in Section II.B., 28 below.

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1 DHS Secretary) to “guard the boundaries and borders of the United States against

2 the illegal entry of aliens.” Immigration and Nationality Act, §103(a)(5), 8 U.S.C.

3 §1103(a)(5). Pursuant to such authority, various fences and barriers were

4 constructed in the San Diego area well before §102 came into existence. That

5 authority continues to exist independent of §102. Consequently, the broad

6 directives of §102(a) cannot be interpreted as providing DHS with the authority to

7 build border barriers as that authority already exists independent of §102(a).

8 What IIRIRA did was to require specific border barriers under §102(b), and

9 provide authority to waive laws that might delay the expeditious construction of

10 those barriers. But that authority to issue waivers does not extend beyond those

11 specific border barrier projects required by §102(b). So while DHS may have the

12 authority to construct the border wall prototype and replacement projects, the

13 §102(c) waiver authority is not applicable to such projects, and DHS may instead

14 only legally proceed with these proposals after complying with all applicable legal

15 requirements, including those of NEPA and the ESA.

16

DHS claims that this construction of IIRIRA renders §102(a) “largely

17 superfluous.” DHS Br. at 20. This is simply not the case. While many statutes

18 have introductory provisions titled “In General” that consist largely of non-

19 binding pronouncements of policy, §102(a) actually contains meaningful

20 provisions. Through its plain language it limits the barriers and roads DHS may

21 construct under §102(b) to those areas “in the vicinity of the United States border”

22 and which are erected “to deter illegal crossings in areas of high illegal entry into

23 the United States.” There is nothing superfluous about these requirements, and in

24 fact the limitation of such projects to “areas of high illegal entry” is central to

25 certain claims in this case.

26

DHS’s claim that the Center’s interpretation would lead to “absurd results”

27 also crumbles under the slightest scrutiny. DHS Brief, at p. 24. DHS asserts that

28 limiting the waiver authority to projects under §102(b) would preclude

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1 maintenance, repair or improvement of existing barriers. Id. However, as

2 described above, DHS has authority for such activities outside of §102; it simply

3 would not be allowed to waive environmental and other laws under §102(c) to

4 carry out such measures. However, this is not a heavy burden, as it is hard to

5 imagine how repairing a hole in a fence would trigger the requirement to prepare a

6 lengthy Environmental Impact Statement or a prolonged analysis under the ESA.

7 DHS’s strawman arguments simply do not carry any weight. That DHS may wish

8 that the broad waiver authority of §102(c) was applicable to every project and

9 action it may decide to undertake, does not make it so.

10

While DHS decries the Center’s “cramped reading,” DHS’s expansive and

11 unbounded interpretation of the §102(c) waiver authority would bestow a truly

12 extraordinary and unprecedented “free pass” upon DHS to bypass any laws for

13 any border barrier or road construction project at any time, with such authority to

14 persist into the future in perpetuity. If DHS is permitted to utilize the authority in

15 2017, then what is to prevent future administrations from waiving legal

16 requirements in 2027, or 2057? Yet this is just one aspect of the ramifications

17 flowing from DHS’s breezy claim of authority to waive all laws pertaining to all

18 border infrastructure projects now and in the future.

19

For example, under DHS’s interpretation, the waiver authority would apply

20 not only to border barrier construction, and not only prototypes and replacements

21 such as the projects at issue here, but barrier and road projects constructed away

22 from the immediate border and any other project DHS deems is within the scope

23 of §102(a). Under this interpretation, the scope of this authority would apply to

24 any area of proposed border wall construction, regardless of whether such

25 construction is proposed within the boundaries of a National Park, Monument,

26 Wildlife Refuge, Forest, Wilderness, or other area of protected federal, state, or

27 local, land, or on a citizen’s private lands. If DHS’s interpretation were accepted,

28 the agency could propose a wall along the length of the Canadian border, waive

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1 all applicable laws, and build it without any further authorization from Congress.

2 It is DHS’s interpretation that leads to absurd results.15

3

DHS’s sweeping claim of legal waiver authority cannot be upheld. Reading

4 IIRIRA’s provisions together, and considering the presumption favoring judicial

5 review and requiring a narrow interpretation of waivers, the most reasonable

6 interpretation of IIRIRA §102 as a whole is that the §102(c) waiver authority is

7 limited to specific barriers which Congress has identified in §102(b). Gutierrez de

8 Martinez v. Lamagno, 515 U.S. 417, 434 (1995) (“When a statute is reasonably

9 susceptible to divergent interpretation, we adopt the reading that accords with

10 traditional understandings and basic principles: that executive determinations

11 generally are subject to judicial review.”).

12

B. IIRIRA’s Legislative History Demonstrates that Congress

13

Intended to Limit the Scope of the §102(c) Waiver Authority

14

to Specific Border Barriers Required Under §102(b)

15

Section 102 of the 2005 REAL ID Act (H.R. 418) amended the §102(c)

16 waiver provision to its current language. P.L. 109-13, div. B. There were no

17 Committee hearings held on H.R. 418 in either chamber of Congress, and the

18 bill’s debate was limited to portions of two days in the House on February 9, 2005

19 (151 Cong. Rec. H453-471) and February 10, 2005 (151 Cong. Rec. H527-566).

20

H.R. 418 was never specifically considered in the Senate, as it was added as

21 an unrelated legislative rider to the Supplemental Appropriations Act during that

22 bill’s conference committee. As stated by one Senator, the REAL ID Act “was

23 simply grafted onto the emergency supplemental appropriations bill that provides

24

25 15 Given §102(a) speaks only of “the United States border” without specifying the southern border, under DHS’s interpretation of the scope of the waiver authority.
26 the agency could theoretically invoke a waiver to build a dam across the Bering

27 Strait to separate the United States from Russia without any further authorization

28

of Congress and such action would be unreviewable by the courts as within the “discretion” of the DHS Secretary. IIRIRA cannot be so interpreted.

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1 funding for our military operations and our troops, without debate or participation

2 by the conferees.” 151 Cong. Rec. S4820 (daily ed. May 10, 2005) (Statement of

3 Senator Byrd).

4

Although the REAL ID Act’s legislative history is relatively sparse, it

5 unequivocally shows the sponsor’s and supporters’ intent to limit the expanded

6 IIRIRA §102(c) waiver authority to the San Diego fencing under IIRIRA section

7 102(b). This intent, in fact, was specified in the bill’s title: “To establish and

8 rapidly implement regulations for State driver’s license and identification

9 document security standards, to prevent terrorists from abusing the asylum laws of

10 the United States, to unify terrorism-related grounds for inadmissibility and

11 removal, and to ensure expeditious construction of the San Diego border fence.”

12 Although titles “cannot limit the plain meaning of the text,” they are “of use . .

13 .when they shed light on some ambiguous word or phrase.” Northstar Financial

14 Advisors, Inc. v. Schwab Invs., 615 F.3d 1106, 1120 (9th Cir. 2010). Here, the

15 title helps shed light on the scope of the IIRIRA §102(c) waiver.

16

In addition, throughout the limited House Floor debate on the REAL ID

17 Act, the bill’s author and co-sponsors repeatedly made plain their intent that the

18 expansion of the IIRIRA §102(c) waiver authority was specific to the border

19 barrier segment identified under §102(b)—at that time, the completion of the San

20 Diego double and triple layer fence. An explanation provided by bill sponsors

21 during floor debate always “deserves to be accorded substantial weight in

22 interpreting the statute.” Federal Energy Administration v. Algonquin SNG, Inc., 23 426 U.S. 548, 564 (1976).16 In circumstances where legislative consideration is

24 rushed or truncated, such as the case with the REAL ID Act, courts will give even

25

26 16 DHS looks past the clear statements of supporters to instead rely on statements

27

made by opponents of the bill, but “[t]he fears and doubts of the opposition are no authoritative guide to construction of legislation. It is the sponsors that we look to

28

when the meaning of statutory words is in doubt.” Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 394-95 (1951).

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1 “greater weight than [they] otherwise might to the statements of the individual

2 legislators who spoke on behalf of the legislation.” Mount Graham Red Squirrel

3 v. Madigan, 954 F.2d 1441, 1453-54 (9th Cir. 1992).

4

In his Floor Statement on the legislation, for example, the bill’s author

5 summarized the bill as including “four of the most important border and document

6 security provisions” that had been included in a previous House bill, including the

7 amendment of the §102(c) waiver authority. 151 Cong. Rec. H454 (daily ed., Feb.

8 9, 2005)(Statement of Rep. Sensenbrenner).17 His description of that amendment

9 makes clear that it was limited to completion of the San Diego fence under

10 §102(b):

11

[T]he REAL ID Act will waive Federal laws to the extent necessary to

12

complete gaps in the San Diego border security fence, which is still stymied 8 years after congressional authorization. Neither the public

13

safety nor the environment are benefitting from the current stalemate.

14 Id. Supporters of the H.R. 418 expansion of the §102(c) waiver authority made

15 similar statements. See, e.g., 151 Cong. Rec. H453-171 (“H.R. 418 provides the

16 Secretary of Homeland Security with authority to waive environmental laws, so

17 that the border fence running 14 miles east from the Pacific Ocean at San Diego

18 may finally be completed.”) (daily ed., Feb. 9, 2005) (Statement of Rep.

19 Hoekstra)(emphasis added). Following inclusion of the bill in the Supplemental

20 Appropriations Act, the bill’s sponsor issued a press release praising the inclusion

21 of “his REAL ID Act” legislation, and noting the “closing [of] the 3-Mile Hole in

22 the fortified U.S./Mexico Border Fence Near San Diego” as one of the bill’s

23 highlights. U.S. Fed News, “Rep. Sensenbrenner Praises REAL ID Act’s

24 Inclusion in Supplemental Conference Report.” May 4, 2005.

25

DHS encourages the Court to disregard the sponsor and supporter

26

27 17 The previous House bill was H.R. 10, which included an amendment that would

28

have waived 16 laws, with the waiver authority limited to completion of the San Diego border fence. H. Amdt. 800.

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1 statements and instead rely solely on the conference report for the Supplemental

2 Appropriations Act. The conference report, however, does not help DHS. First,

3 the report’s isolated and general statement that it “provides for construction and

4 strengthening of barriers along U.S. land borders” is not sufficient to overcome

5 the repeated and clear statements by the bill’s s author and co-sponsors that the

6 waiver’s reach was specific to completion of the San Diego triple fence. Second,

7 the conference report, in fact, emphasizes that the expansion of the waiver

8 authority was catalyzed by, and intended to address, the delay in completion of the

9 San Diego fence. H.R. Rep. 109-72 at 171 (“Despite the existing waiver

10 provision, construction of the San Diego barriers has been delayed due to a

11 dispute involving other laws.”).18

12

The weight of the legislative history thus reinforces the conclusion that

13 Congress intended the REAL ID Act’s amendment and expansion of the §102(c)

14 waiver authority, like the § 102(c) waiver authority as originally enacted in 1996,

15 to apply only to the specific border barriers required by §102(b).

16

C. Section 102(c)’s Requirement that Waivers be “Necessary to

17

Ensure Expeditious Construction” Demonstrates That Congress Intended to Limit the Scope of the §102(c) Waiver to Specific

18

Border Barriers Required Under §102(b)

19

The waiver provision of §102(c) directs that DHS may only waive laws

20 “necessary to ensure expeditious construction” of barriers and roads. Although

21 the term “expeditious construction” is not defined, the logical and straightforward

22 interpretation is that Congress provided the DHS Secretary with the authority to

23 18 Notably, the report cites the Coastal Zone Management Act, 16 U.S.C. § 1541 24 et seq., which only applies to a portion of the San Diego border fence, as a law

25 causing delay. Id. (“Continued delays caused by litigation have demonstrated the need for additional waiver authority with respect to other laws that might impede
26 the expeditious construction of security infrastructure along the border, such as the

27 Coastal Zone Management Act.”). Obviously, the Coastal Zone Management Act

28

is not implicated in any border projects in Arizona, New Mexico, or along 99% of Texas’s border.

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1 waive laws in order to build the specific border barriers (at that time the San

2 Diego double and triple layer fence) required under § 102(b) as soon as possible

3 after the law’s enactment.

4

DHS nonetheless insists that “the temporal focus of the waiver provision is

5 on the completion of each construction project under the Act . . . meaning at least

6 that they can be issued when ‘expeditious construction’ would not occur in the

7 absence of a waiver.” DHS Br. at 28-29. By this circular reasoning, and as

8 illustrated by the August 2, 2017 determination, DHS would have the authority, in

9 perpetuity and untethered to any specific legislative direction from Congress, to

10 waive laws for any project the agency conjures up that involves the construction

11 of border barriers, or even preparation for such construction. This sweeping

12 authority would apply long after the deadlines set by the statute for the

13 construction of any such barriers, and in relation to the construction of additional

14 barriers that have not been specifically directed by Congress. Such an

15 unreasonable construction should be rejected.

16

DHS further disputes the Center’s interpretation by arguing that “nothing in

17 the text of the Act suggests that Congress intended the waiver authority to sunset.”

18 DHS Br. at 28. The same could be said of the converse—there is no evidence in

19 either the text or the legislative history that Congress intended the waiver

20 authority to persist in perpetuity, or even that Congress ever intended the waiver

21 authority to be extended beyond the initial San Diego fence. But more

22 importantly, the text of the statute itself does indicate that the waiver authority

23 was intended to apply only for specific purposes over a specific period of time,

24 namely until the timely completion of the specific projects mandated by §102(b).

25 Those projects have long since been completed.

26

The current version of §102(b) was last amended by Section 564 of the

27 2008 Consolidated Appropriations Act. P.L. 110-161, div. E. These

28 amendments—which remain the law today—include provisions which, when read

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1 together with §102(c) do in fact act as a de facto sunset clause on the waiver

2 authority. Through these amendments, Congress changed §102(b) to require DHS

3 to “construct reinforced fencing along not less than 700 miles of the southwest

4 border where fencing would be most practical.” §102(b)(1)(A). Then, under the

5 heading “Priority areas,” §102(b)(1)(B)(i) tasked DHS to “identify the 370 miles,

6 or other mileage determined by the Secretary,” “where fencing would be most

7 practical and effective.” Id. Critically, this new provision provided that the

8 authority to determine any “other mileage” for priority area fencing “shall expire

9 on December 31, 2008.” Id. In short, the amendments inserted a sunset clause

10 explicitly constraining DHS’s authority regarding the determination of “priority

11 areas”. Moreover, these amendments also imposed a deadline of December 31,

12 2008, for the expedited construction of fencing in priority areas. §102(b)(1)(B)(ii).

13

Following these amendments, DHS then invoked the §102(c) waiver to

14 meet its mandates under §102(b), and as described supra at Factual Background

15 I.A., hundreds of miles of barriers were constructed and DHS has stated that it has

16 now complied with all the requirements of §102(b)(B)(i) & (ii).

17

If, as DHS now argues, it has unbridled discretion under §102(c) to invoke

18 a waiver at any time to “expeditiously” build projects pursuant to its general

19 authority under §102(a), the explicit constraint on its authority imposed by

20 Congress through the expiration of authority contained §102(b)(2)(i) and the

21 construction deadline in §102(b)(2)(ii) would each be rendered a nullity. Such a

22 result is impermissible. See, e.g. Hooks v. Ktsap Tenant Support Servs., Inc., 816

23 F.3d 550, 560 (9th Cir. 2016) (“It is a cardinal principle of statutory construction

24 that a statute ought, upon the whole, to be so construed that, if it can be prevented,

25 no clause, sentence, or word shall be superfluous, void, or insignificant.”).19

26 27 19 Regardless of whether the mandate of §102(b), and hence the availability of a
wavier to “expeditiously” construct barriers, is tied to the completion of the 700 28 miles required by (b)(1) or the December 31, 2008 deadline for the 370 miles of

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1

In sum, it is far more reasonable to limit the §102(c) waiver authority to

2 those barriers that have been specifically mandated by Congress under §102(b)

3 than to adopt the government’s boundless interpretation.20

4

D. Even if the Waiver Authority is Not Limited to Projects Under

5

§102(b), the August 2 Waiver is Not Authorized by IIRIRA

6

As demonstrated above, the waiver authority in §102(c) must be read as

7 being limited to those projects mandated by §102(b). Because the August 2

8 waiver purports to cover projects that clearly fall outside of §102(b), it must be

9 found void by virtue of being ultra vires. Moreover, even if the Court finds the

10 waiver authority is not limited to actions under §102(b), the August 2 waiver is

11 still ultra vires as it is at odds with the requirements of §102(c) itself, as well as

12 those of §102(a).

13

First, a waiver under §102(c) is by its terms is allowed only “when

14 necessary to ensure expeditious construction of barriers and roads.” As described

15 in Section II.C., supra, neither the prototype nor the wall replacement project—

16 started a decade after the most recent amendments to IIRIRA—can be considered

17 to require “expeditious” construction. Second, §102(a) limits barriers to “areas of

18 high illegal entry.” As thoroughly documented in the briefing of the State of

19 California,21 by no rational standard can the project area for the prototypes (north

20 of an existing double fence), nor for the wall replacement itself (already blocked

21 priority areas under (b)(2), there can be no reasonable dispute that DHS has
22 fulfilled these obligation under §102(b). Consequently, the waiver authority under

23

§102(c) is no longer available. 20 Although DHS has fulfilled its statutory duties under §102(b) by constructing

24 all of the specific barriers mandated by Congress, Congress could of course again

25 amend §102(b) to add new specific border barrier requirements, and new time constraints, that could then be subject to the §102(c) waiver authority.
26 21 In an effort to reduce redundant briefing, the Center adopts and incorporates by

27 reference the State of California’s information and arguments demonstrating that

28

the area subject to the August 2 waiver cannot reasonably be considered an area of “high illegal entry.”

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1 by double fence) be considered an area of high illegal entry. Consequently DHS

2 lacked the authority to issue the August 2 waiver, and such waiver is ultra vires

3 and void.

4

E. Because the August 2 Waiver is Ultra Vires, it is Void

5

As demonstrated above, the August 2, 2017 waiver is ultra vires as it

6 exceeds the authority delegated by Congress to the DHS Secretary. Moreover,

7 because DHS’s broad interpretation of the §102(c) waiver authority raises serious

8 constitutional questions, while the Center’s interpretation does not, the Court must

9 construe the statute so as to avoid any such constitutional problems. “[A]s

10 between two possible interpretations of a statute, by one of which it would be

11 unconstitutional and by the other valid, our plain duty is to adopt that which will

12 save the Act.” Blodgett v. Holden, 275 U.S. 142, 148 (1927); Edward J.

13 DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades Council, 485 U.S.

14 568, 575 (1988) (“[W]here an otherwise acceptable construction of a statute

15 would raise serious constitutional problems, the Court will construe the statute to

16 avoid such problems unless such construction is plainly contrary to the intent of

17 Congress”).

18

Because, this Court has the authority to set aside the waiver as ultra vires, it

19 need never reach the constitutional infirmaries of IIRIRA §102(c) itself.

20 However, in the event the Court rejects the Center’s ultra vires claim, either on

21 the merits or because it believes it lacks jurisdiction over such a claim, as

22 demonstrated below both the August 2 waiver and the underlying waiver authority

23 of §102(c) are unconstitutional.

24 III. The August 2 Waiver and the IIRIRA §102(c) Waiver Authority are

25

Unconstitutional

26

Both the August 2, 2017 waiver as well as the underlying waiver authority

27 contained in IIRIRA §102(c) suffer from several, intertwined constitutional

28 defects. Each of these standing alone is reason to strike down the waiver and/or

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1 the statute; collectively they compel such a result.

2

A. The August 2 Waiver Violates the Take Care Clause (Article II,

3

§3)

4

Article II of the U.S. Constitution provides that “[t]he executive Power shall

5 be vested in a President,” and that he or she “shall take Care that the Laws be

6 faithfully executed.” Article II, § 3. As detailed above, the August 2, 2017 waiver

7 is ultra vires as it exceeds the authority delegated by Congress to the DHS 8 Secretary in IIRIRA. While the Center believes that this Court clearly has

9 jurisdiction to find the waiver ultra vires and set it aside on that basis, DHS argues 10 that the Court cannot reach such a claim because “all non-constitutional claims are

11 barred.” DHS Br. at 11-12. Even if this were the case, the Take Care Clause of

12 the Constitution provides a cause of action under the Constitution that DHS

13 cannot possibly argue is precluded by the jurisdictional provision of §102(c). U.S.

14 Constitution Article II, § 3; cf. Franklin v. Massachusetts, 505 U.S. 788, 801 15 (1992) (“the President’s actions may still be reviewed for constitutionality” even

16 if APA review is unavailable).

17

DHS contends that claims under the Take Care Clause are not justiciable,

18 and in any event can only be brought against the President himself. DHS Br. at

19 30-33. But ever since Marbury v. Madison, “the courts [have] asserted power to 20 determine and enforce constitutional and other legal obligations of executive

21 officials.” 1 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law

22 § 7.2(a) (2016). DHS cites Mississippi v. Johnson, 71 U.S. 475, 499 (1867), 23 which stands only for the proposition that in certain circumstances an injunction

24 will not lie against the President. But subordinate Executive officers such as the

25 DHS Secretary are “available as an effective target for specific relief.” Id.; see 26 also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 582 (1952) (suit 27 against Secretary of Commerce).

28

The Supreme Court has repeatedly held that the Clause applies to executive

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1 officers and other subordinates of the President. Myers v. United States, 272 U.S.

2 52, 117 (1926) (“But the President alone and unaided could not execute the laws.

3 He must execute them by the assistance of subordinates. This view has since been

4 repeatedly affirmed by this court.”); Printz v. United States, 521 U.S. 898, 922

5 (1997) (“The Constitution does not leave to speculation who is to administer the

6 laws enacted by Congress; the President, it says, ‘shall take Care that the Laws be

7 faithfully executed,’ Art. II, § 3, personally and through officers whom he

8 appoints.”).

9

Moreover, the Supreme Court has long recognized a claim for relief against

10 federal officials’ unconstitutional acts. See, e.g., Free Enterprise Fund v. Public

11 Co. Accounting Bd., 561 U.S. 477, 491 n.2 (2010) (collecting cases); United

12 States v. Lee, 106 U.S. 196, 220-21 (1882). DHS’s position is especially hard to

13 reconcile with the seminal Youngstown decision. There, too, the Executive argued

14 that its actions were unreviewable. This position was rejected in Youngstown, and

15 it must be rejected here. The Take Care Clause provides a cause of action under

16 the Constitution allowing the Center to challenge the August 2 waiver.22

17

The August 2 waiver violates the Take Care Clause in two primary ways.

18 First, by issuing a waiver that invoked §102 of IIRIRA, but that was not

19 authorized by IIRIRA, DHS exceeded the authority delegated to the Executive

20

21 22 The Center readily acknowledges that jurisprudence under the Take Care Clause is less developed than under Presentment Clause, Separation of Powers and
22 Nondelegation Doctrine also at issue in this case. However, in 2014 the Supreme

23 Court breathed new life into the provision in an order granting certiorari where it asked “Whether the Guidance violates the Take Care Clause of the Constitution,
24 Art. II, § 3” United States v. Texas, 136 S. Ct. 906 (2016) (order granting

25 certiorari). The Court ultimately did not reach the issue. See also Arizona Dream

26

Act Coalition v. Brewer, 855 F.3d 957, 976 (2017) (9th Cir. 2017) (entertaining claim alleging violation of Take Care clause but resolving case on other claim

27 based on constitutional avoidance principle); Jack Goldsmith & John F. Manning,

28

The Protean Take Care Clause, 164 U. Pa. L. Rev. 1835, 1837 (2016) (summarizing cases where the Court found violations of the Take Care Clause).

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1 Branch. See supra at section II (describing how the waiver is not authorized under

2 the statute because the waiver authority is only applicable to those barriers

3 required under §102(b)). Courts have long held that the Take Care Clause’s

4 mandate to “faithfully execute” the law requires that the executive branch

5 “execute the laws, not make them,” and therefore precludes actions beyond the

6 scope of the law at issue. See, e.g., Medellin v. Texas, 552 U.S. 491, 532 (U.S.

7 2008); Youngstown, 343 U.S. at 587 (“[T]he President’s power to see that the laws

8 are faithfully executed refutes the idea that he is to be a lawmaker.); Myers, 272

9 U.S. at 177 (“The duty of the President to see that the laws be executed is a duty

10 that does not go beyond the laws.”). Consequently, for the same reasons the

11 August 2 waiver is ultra vires, it is also in violation of the Take Care Clause.

12 Article II, § 3.

13

Additionally, even if the waiver authority under §102(c) is not limited to

14 those barriers required by §102(b), the August 2 waiver otherwise is at odds with

15 the specific directive of §102(a) that any barriers built under IIRIRA be in “areas

16 of high illegal entry,” and hence its issuance runs afoul of the duty to faithfully

17 execute that statutory mandate. See supra at section II.A.

18

B. Section 102(c) and the August 2 Waiver Violate the Presentment

19

Clause (Article I, §7)

20

“Familiar historical materials provide abundant support for the conclusion

21 that the power to enact statutes may only ‘be exercised in accord with a single,

22 finely wrought and exhaustively considered, procedure” involving bicameral

23 passage followed by presentment to the President. Clinton v. City of New York,

24 524 U.S. 417, 439-40 (1988) (quoting INS v. Chadha, 462 U.S. 919, 951 (1983)).

25 “Amendment and repeal of statutes, no less than enactment, must conform with

26 Art. I.” Chadha, 462 U.S. at 954. The power of DHS under §102(c) to pick and

27 choose which laws to apply—and which to waive application of—has legislative

28 consequences which must be subject to these Article I requirements.

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1

Section 102(c) is closely analogous to the “cancellation” provisions of the

2 Line Item Veto Act struck down in Clinton, where the Court considered a

3 provision of that Act granting the President authority to “cancel” certain

4 appropriations that had been passed by Congress, after he had signed bills

5 containing those appropriations into law. The Court struck down the law because

6 “[t]here is no provision in the Constitution that authorizes the President to enact,

7 to amend, or to repeal statutes.” Id. at 439. Like the Line Item Veto Act, §102(c)

8 authorizes an executive branch official to legislate, by partial repeal or

9 amendment, without observing the requirements of bicameralism and

10 presentment.

11

As DHS notes, the only decision to analyze a presentment clause claim

12 challenge to §102(c) found the provision constitutional because “the Secretary has

13 no authority to alter the text of any statute, repeal any law, or cancel any statutory

14 provision.” Defenders of Wildlife v. Chertoff, 527 F. Supp. 2d 119, 124 (D.D.C.

15 2017); DHS Br. at 37. The Supreme Court’s decision in Clinton, however, did not

16 turn on whether or not the cancelled provisions remained in the U.S. Code.

17 Instead, the Court focused on the “legal and practical” effects of the veto

18 authority. Like that authority, the §102(c) waiver provision results in legal and

19 practical effects that must be considered partial repeal or amendment of the

20 waived statutes without observance to required constitutional procedures.

21

The court’s decision in Defenders was further flawed in its reliance on the

22 canard that “by [plaintiff’s] logic, any waiver, not matter how limited in scope,

23 would Violate I.” Defenders of Wildlife, 527 F.2d at 124 (emphasis in original).

24 The §102(c) authority is not just any waiver. As noted by one commenter, a

25 “broad reading of the Presentment Clause and the holding in Clinton would call

26 into question [IIRIRA §102(c)]. This is not to say, however, that every waiver of

27 law by a member of the executive branch is unconstitutional.” Kate R. Bowers,

28 “Saying What the Law Isn’t: Legislative Delegations of Waiver Authority in

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1 Environmental Laws,” 34 Harv. Envtl. L. Rev. 257, 290-291 (2010). This is

2 because “the scope of the [IIRIRA §102(c)] provision is quite different” from

3 previous laws considered in Presentment Clause challenges, because it “functions

4 as a freestanding authority to waive any legal requirement,” its “focus is broader,”

5 and “it limits judicial review.” Id. at 291.

6

Even if the Court finds Defenders persuasive, DHS’s August 2 invocation

7 of the §102(c) authority shows that its reach is far broader in scope than presumed

8 by the court in that case. Instead of being limited to border barriers which were

9 specifically mandated by Congress pursuant to §102(b), DHS is purporting to

10 expand that authority to the border wall prototype and border fence replacement

11 project under the claimed “general mandate in §102(a) that is not geographically

12 limited.” DHS Br. at 21 (emphasis added).

13

Notwithstanding this aggressive claim of authority, DHS states that “[t]he

14 statutes retain their general legal force and effect because the Secretary’s waiver

15 extends to only a tiny fraction of the universe of cases to which NEPA and similar

16 statutes apply.” DHS Br. at 37. DHS’s concept of a “tiny fraction of the universe”

17 encompasses a significant expanse of U.S. soil. In total, the seven §102(c)

18 determinations issued to date have waived more than 35 laws on nearly 650

19 miles—approximately one third of the 2,000 mile long southern border. These

20 waivers have already cut a large hole in the fabric of protections provided by

21 NEPA, the ESA, the Clean Water Act, the Clean Air Act, and other waived laws.

22 Accordingly, the August 2 waiver cannot be considered anything other than an

23 unconstitutional partial repeal or amendment of the waived laws.23

24 23 Moreover, the August 2 determination targets laws with limited geographic

25 reach, most notably the Otay Mountain Wilderness Act of 1999, Pub. L. 106-145.

Under that Act, Congress protected 16,885 acres of federal land administered by

26 the Bureau of Land Management (“BLM”), within the U.S. Department of the

27

Interior. This area protects unique and rare ecosystems, including populations of the endangered Quino checkerspot butterfly and Mexican flannel bush, and the

28

only known stand of Tecate cypress in the United States. By waiving the requirements of the wilderness acts, DHS is facilitating the construction of border

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1

C. Section 102(c), as Demonstrated by the August 2 Waiver, Violates

2

the Nondelegation Doctrine

3

The nondelegation doctrine is “rooted in the principle of separation of

4 powers that underlies our tripartite system of Government.” Mistretta v. United 5 States, 488 U.S. 361, 371 (1989). It provides “that Congress may not 6 constitutionally delegate its legislative power to another branch of Government.”

7 Touby v. United States, 500 U.S. 160, 165 (1991). To abide by this limitation, 8 Congress must “lay down by legislative act an intelligible principle to which the

9 person or body authorized [to act] is directed to conform.” Whitman v. Am. 10 Trucking Ass’ns, 531 U.S. 457, 472 (2001). The intelligible principle standard 11 consists of a three prong test: whether Congress has “clearly delineate[d] (1) the

12 general policy, (2) the public agency which is to apply it, and (3) the boundaries

13 of the delegated authority.” Mistretta, 488 U.S. at 372-73.

14

Here, the §102(c) waiver authority plainly fails to meet the third factor, as

15 illustrated by the August 2 determination. Although the prior district courts to

16 consider nondelegation challenges to §102(c) have rejected them, those decisions

17 were all premised on the understanding that the scope of the waiver authority was

18 constrained to completion of specific border barriers mandated by Congress. See 19 Sierra Club, 2005 U.S. Dist. LEXIS 44244, at *21 (boundary of delegated 20 authority is waiver of laws “solely in the context of this Triple Fence”); Defenders 21 of Wildlife, 527 F.2d at 128; Save Our Heritage v. Gonzales, 533 F. Supp. 2d 58, 22 63 (D.D.C. 2008); County of El Paso, 2008 U.S. Dist. LEXIS 83045 (W.D. Tex. 23 Aug. 29, 2008), at *12.

24

25

barriers, roads, and other infrastructure that will have real, permanent, and far reaching impacts, and directly destroy the “wilderness quality” of much of this

26 relatively small expanse of protected land. Although the Otay Mountain

Wilderness Act is still a part of the United States Code, the §102(c) waiver has

27 greatly diminished its intended purpose and protections, and thus constitutes a

28 repeal of that law without observance of the Presentment Clause requirements.

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1

In contrast, the August 2, 2017 determination was made several years after

2 DHS has fulfilled its border barrier mandates under IIRIRA, and without the

3 enactment of any new or additional statutory fence-building mandates. And unlike

4 past waivers considered in Sierra Club, Defenders, Save Our Heritage, and

5 County of El Paso, which focused solely on building new fencing specifically

6 mandated by Congress pursuant to §102(b), the August 2 determination applies to

7 “various” border projects along a fifteen mile region, including the border wall

8 prototype and border fence replacement.

9

DHS’s interpretation of actions subject to §102(c) has no meaningful

10 boundaries. According to DHS, IIRIRA “makes clear that the Secretary’s

11 authority encompasses more than the ‘physical barriers and roads’ themselves,”

12 and includes projects that “concern” barrier construction, as well as those that “the

13 Secretary deem[s] necessary to prepare for future installation[s].” DHS Br. at 23-

14 24 (emphasis added). The scope of actions falling under these umbrellas of

15 generality and vagueness would extend well beyond the prototypes and

16 replacement wall. If DHS’s interpretation is true—a contention that the Center

17 strongly disputes—then the boundaries of the delegated authority under §102(c)

18 are far larger and more amorphous than assumed by any of the previous courts

19 considering nondelegation challenges.

20

By attempting to expand the waiver authority beyond specifically mandated

21 border fencing projects to a larger universe of border security projects such as the

22 prototype and replacement project, DHS also undermines the inherent temporal

23 and geographic limitations on that authority. Instead of the “expeditious

24 construction” constraint of §102(c) directing DHS to build mandated border

25 barriers as quickly as possible following specific Congressional direction, the

26 government asserts that “the temporal focus of the waiver provision is on the

27 completion of each construction project under the Act.” DHS Br. at 28.

28 Conveniently, this reading permits DHS to treat every border infrastructure project

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1 it proposes under IIRIRA as within the waiver authority, in perpetuity and in the

2 absence of specific Congressional mandates or authorization. This limitless

3 discretion is especially problematic in light of the broad scope of authority

4 delegated to the DHS Secretary under §102(c) to waive any law, based on a

5 necessity determination, Whitman, 531 U.S. at 475 (“the degree of agency

6 discretion that is acceptable varies according to the scope of power congressional

7 conferred.”), as well as its limitations on judicial review. Touby, 500 U.S. at 170

8 (Marshall, J. concurring) (“[J]udicial review perfects a delegated-lawmaking

9 scheme by assuring that the exercise of such power remains within statutory

10 bounds.”).

11

Because the §102(c) waiver authority delegates sweeping authority to the

12 DHS Secretary without establishing a clearly delineated boundary to that

13 delegation—as illustrated by the August 2, 2017 determination—the provision is

14 an unconstitutional delegation of legislative authority to an executive branch

15 official and must be struck down.24

16 IV. Plaintiff Has Standing

17

The Center and its members have standing in this case pursuant to the

18 familiar three-part test: (1) its members have suffered, and will continued to

19 suffer, “injury in fact” that is concrete and particularized, and the threat must be

20

21 24 Nor can DHS fall back on its assertion that Congress may delegate in even broader terms than normal under Loving v. United States, 517 U.S. 748, 772
22 (1996) (delegations may be broader than “where the entity exercising the

23 delegated authority possesses independent authority over the subject matter.”).

24

Loving, however, addressed an “internal waiver” pertaining to the agency’s expertise. Section 102(c), in contrast, is unprecedented in that it allows DHS

25 broad authority to waive any external law, the vast majority of which have nothing

26

to do with its subject matter. See Bowers, 34 Harv. Envtl. L. Rev. 257 at 263 (discussing typology of waivers). As shown by each of the waivers issued to date,

27 DHS has targeted environmental, cultural, and historic protection laws, as well as

28

laws pertaining to religious freedom, Native American gravesites, and farmland protection—none of which are remotely related to DHS’s authority and expertise.

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1 actual and imminent, not conjectural or hypothetical; (2) the alleged harm is

2 traceable to defendants’ failure to comply with NEPA and the ESA, and its

3 purported waiver of those laws pursuant to §102(c); and (3) a favorable judicial

4 decision that invalidates the waiver and directs compliance with NEPA and the

5 ESA will prevent or redress the injury. Friends of the Earth, Inc. v. Laidlaw

6 Envt’l Services, Inc., 528 U.S. 167, 180-181 (2000).

7

The Center’s affidavits in this case show recreational, professional,

8 aesthetic, and personal interests, for the Center organizationally, and for its

9 members specifically, in the protection and conservation of particular species

10 within a particular place (the fifteen mile project area, including the border wall

11 prototype and border fence replacement projects) which have been and continue to

12 be harmed by defendants’ waiver of laws. Ecological Rights Found. v. Pacific

13 Lumber Co., 230 F.3d 1141, 1147 (9th Cir. 2000) (injury in fact shown through

14 affidavits showing “an aesthetic or recreational interest in a particular place, or

15 animal, or plant species and that that interest is impaired by defendant’s

16 conduct.”). See, e.g., Declaration of Jill M. Holslin, at ¶ 6 (describing interest in

17 and observation of rare species including Quino checkerspot butterfly, Tecate

18 cypress, and snowy plovers); Declaration of Christopher D. Nagano, at ¶ 8

19 (describing interest in numerous imperiled species, including San Diego and

20 Riverside fairy shrimp, Quino checkerspot butterfly, Otay Mesa mint, and Otay

21 tarplant); Declaration of Peter Galvin, at ¶ 16 (describing interest in Quino

22 checkerspot butterfly and other species). The affidavits further demonstrate

23 repeated and extensive visitation to the project area, and specific plans to return to

24 those areas. See, e.g., Holslin Decl., at ¶¶ 7-8; Nagano Decl., at ¶¶ 10, 16-17, 30.

25 These interests are more than sufficient to confer standing.

26

DHS’s failure to comply with NEPA and the ESA, as well as its

27 inapplicable and unconstitutional waiver of those laws under the August 2

28 determination, are clearly the cause of the Center’s and its members’ injuries. An

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1 order from this Court invalidating the August 2 waiver, and ordering DHS to

2 comply with NEPA, the ESA, and all applicable law would remedy that harm.

3 Accordingly, the Center has established standing.

4 V. 5

Judgment Should be Entered for the Center on the NEPA and ESA Claims

6

Because the August 2 waiver is ultra vires to IIRIRA §102(c) and is

7 unconstitutional, DHS’s waiver of NEPA, the ESA, and the APA, is invalid.

8 Accordingly, DHS may only proceed with the border wall prototype and

9 replacement projects after compliance with those and all other applicable laws,

10 and judgment should be issued for plaintiff on Claim IV (NEPA violations—

11 failure to prepare NEPA analysis) and Claim V (ESA violations-- §7(a)(1) and

12 §7(a)(2)).

13

DHS’s argument that the Center failed to provide the requisite notice prior

14 to bringing its ESA claims should be rejected. The ESA requires written notice of

15 certain violations of the Act to be provided at least sixty days prior to bringing

16 suit, and plaintiff has met these notice requirements here through notice letters

17 pertaining specifically to the border wall prototype project and border wall

18 replacement project on June 1, 2017, and July 7, 2017, respectively. 16 U.S.C.

19 §1540(g)(2)(A)(i). DHS did not remedy the alleged violations, and the Center

20 added those ESA claims to its second amendment complaint filed September 6,

21 2017 (ECF No. 16), more than sixty days after the notice was provided.

22

DHS claims that the Center “prematurely” sent its notice letters, because

23 the letters “preceded the award of contracts for the challenged projects and the

24 commencement of construction.” DHS Br. at 39. Nothing in the ESA prevents a

25 notice from being valid as to a future action—the analysis instead turns on the

26 notice’s “overall sufficiency.” Klamath-Siskiyou Midlands Ctr. v. MacWhorter,

27 797 F.3d 645, 651 (9th Cir. 2015); Marbled Murrelet v. Babbitt, 83 F.3d 1068,

28 1073 (9th Cir. 1996) (notice is adequate if it provides defendants with notice of

Memorandum of Points and Authorities 39

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1 issues plaintiff intends to pursue in litigation, so that alleged violations may be

2 corrected); Colo. Envtl. Coal. v. Office of Legacy Mgmt., 819 F. Supp. 2d 1193,

3 1219 (D. Colo. 2011)(“nothing in the notice statute’s language explicitly prevents

4 a notice from being effective as to a future action.”).

5

Here, the Center’s notice letters clearly served their purpose of putting DHS

6 on notice of ESA violations for the border wall prototype and replacement

7 projects, regardless of whether that notice was provided before contracts have

8 been issued. Indeed, it is ironic that DHS attempts to fault the sufficiency of the

9 Center’s notice given that the lack of information available to the Center and the

10 public generally is due to DHS’s decision to waive laws such as the ESA and

11 NEPA. Because the Center’s ESA notice letters were more than sufficient to put

12 DHS on notice of the alleged violations, DHS’s argument should be rejected.

13

CONCLUSION

14

For the foregoing reasons, the Center respectfully requests the Court to

15 grant its motion for summary judgment on its Claims I-VI.

16

17 DATED: November 22, 2017

Respectfully submitted,

18

19

s/ Brian Segee

20

Brian Segee Brendan Cummings

21

Anchun Jean Su

22

John Peter Rose

23 Attorneys for Plaintiff
24

25

26

27

28

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1 Gloria D. Smith (CA No. 200824)

2

Sierra Club 2101 Webster Street, Suite 1300

3 Oakland, CA 94612

4 Telephone: (415) 977-5532

5 Brett M. Paben (FL No. 0416045)

6

Defenders of Wildlife 535 16th Street

7 Denver, CO 80202

8

Telephone: (720) 943-0457 Pro hac vice

9 Anthony T. Eliseuson (IL No. 6277472)
10 Sarah K. Hanneken (OR No. 165104)

11 Animal Legal Defense Fund 919 SW Taylor Street, #400
12 Portland, OR 97205

13 Telephone: (707) 795-2533 Pro hac vice
14 UNITED STATES DISTRICT COURT
15 SOUTHERN DISTRICT OF CALIFORNIA
16

17 IN RE: BORDER INFRASTRUCTURE
18 ENVIRONMENTAL LITIGATION, 19
20

Case No. 17-cv-01215-GPC-WGV
Consolidated with Case No. 17-cv-01873-GPC-WVG Case No. 17-cv-01911-GPC-WVG

21

Memorandum of Points and Authorities

in support of Plaintiffs Defenders of

22

Wildlife, Animal Legal Defense Fund, and

23

Sierra Club’s Motion for Summary

Judgment

24

25

Judge: Hon. Gonzalo P. Curiel

Courtroom: 2D

26

Date:

February 9, 2018

27

Time:

1:30 p.m.

28

MEM. IN SUPP. OF SUMMARY JUDGMENT

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1

TABLE OF CONTENTS

2

3 TABLE OF CONTENTS .................................................................................................. i

4 TABLE OF AUTHORITIES .......................................................................................... iii

5 INTRODUCTION ........................................................................................................... 1

6 LEGAL STANDARDS ................................................................................................... 3

7 ARGUMENT................................................................................................................... 4

8 I. 9

The Secretaries’ Determinations that the Projects are in “Areas of High Illegal Entry” and to Proceed with the Projects without Satisfying the Consultation Requirement Violate the Administrative Procedure Act. 4

10

A. The Secretary’s actions required by subsections (a) and (b) of section 102 of

11

IIRIRA are reviewable under the APA......................................................... 4

12

B. The Secretary’s decisions required by subsections 102(a) and (b) of IIRIRA

are arbitrary, capricious, an abuse of discretion, or otherwise not in

13

accordance with law..................................................................................... 8

14 II. 15 16 17 18

Defendants’ Waivers Are Void Ultra Vires Acts that are not Authorized under Section 102. ..........................................................................................................12
A. This Court has inherent authority to determine if the waivers exceeded the Secretary’s statutory authority. ...................................................................12
B. The waivers are ultra vires because they fall outside the statutory scope of authority Congress granted to the Secretary. ...............................................13

19

1. The Secretary’s use of section 102(c) waivers to “replace existing

20

primary fencing” are ultra vires.........................................................14

21

2. The San Diego prototype project will not deter illegal crossing and

falls outside of section 102’s grant of authority.................................15

22 3. The waivers are also ultra vires because they are not “necessary to

23

ensure expeditious construction” as required by section 102(c).........16

24 25
26 III.
27 28

4. The Secretary’s waivers are ultra vires because section 102’s grant of authority was limited to the construction activities specifically mandated by Congress. .....................................................................16
The Broad and Unbridled Grant of Waiver Authority in Section 102 Violates the Non-Delegation Doctrine as Demonstrated by Defendants Attempt to Use it for Purely Political Objectives. ...................................................................................20

MEM. IN SUPP. OF SUMM. J.

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1 IV.
2
3 V. 4

The Waiver Authority—if Deemed to Authorize the Projects at Issue—Violates the Presentment Clause by Allowing the Secretary to Engaging in Legislative Repeals. ..............................................................................................................................27
The Jurisdictional Stripping Provision is Unconstitutional under Separation of Powers and Federalism Grounds. ..........................................................................27

5

A. Without inherent ultra vires jurisdiction, section 102(c)(2) would run afoul

6

of fundamental separation of powers protections. .......................................27

7

B. Congress lacks the power to eliminate the concurrent jurisdiction of state courts unless it vests that power in an inferior federal court. .......................28

8

C. Subsection 102(c)(2) violates the Coalition Plaintiffs’ due process rights and

9

impairs their First Amendment right to petition the government. ................29

10 CONCLUSION ..............................................................................................................30

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

MEM. IN SUPP. OF SUMM. J.

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1

TABLE OF AUTHORITIES

2 Cases

3 A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935)............................25

4 ANA Int’l, Inc. v. Way, 393 F.3d 886 (9th Cir. 2004) ....................................................... 5

5 Avila v. Spokane Sch. Dist. 81, 852 F.3d 936 (9th Cir. 2017) ..........................................16

6 Barlow v. Collins, 397 U.S. 159 (1970) ........................................................................... 4

7 Bd. of Governors of Fed. Reserve Sys. v. MCorp Fin., Inc., 502 U.S. 32 (1991) .............. 5

8 Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667 (1986)................................4, 7

9 California Wilderness Coal. v. U.S. Dep’t of Energy, 631 F.3d 1072 (9th Cir. 2011) .....10

10 Cisneros v. Alpine Ridge Grp., 508 U.S. 10, 18 (1993) .................................................... 6

11 Clinton v. City of New York, 524 U.S. 417 (1998)...........................................................27

12 Cnty. of El Paso v. Chertoff, No. EP-08-CA-196, 2008 WL 4372693 (W.D. Tex. Aug. 29,

13 2008).....................................................................................................................13, 24

14 Cnty. of Esmeralda v. U.S. Dep’t of Energy, 925 F.2d 1216 (9th Cir. 1991) .................... 8

15 Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 1157 (9th

16 Cir. 2007)..................................................................................................................6, 7

17 Conservation Council for Haw. v. Nat’l Marine Fisheries Serv., 97 F. Supp. 3d 1210 (D.

18 Haw. 2015) .................................................................................................................26

19 Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102 (1980) .................. 5

20 Corley v. United States, 556 U.S. 303 (2009)................................................................... 6

21 Ctr. for Biological Diversity v. Mattis, 868 F.3d 803 (9th Cir. 2017) ..............................26

22 DART v. U.S., 848 F.2d 217 (D.C. Cir. 1988) .................................................................12

23 Defenders of Wildlife v. Chertoff, 527 F. Supp. 2d 119 (D.D.C. 2007)................13, 23, 24

24 Defenders of Wildlife. See City of El Paso v. Chertoff, No. EP-08-CA-196-FM, 2008 U.S.

25 Dist. LEXIS 83045 (W.D. Tex. Aug. 29, 2008) ..........................................................23

26 Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073 (9th Cir. 2014) ..................................... 6

27 Geo–Energy Partners–1983 Ltd. v. Salazar, 613 F.3d 946 (9th Cir. 2010) .....................16

28 Griffin v. Oceanic Contractors, Inc., 458 U.S. 564 (1982) ............................................... 7

MEM. IN SUPP. OF SUMM. J.

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1 Haywood v. Drown, 556 U.S. 729 (2009) .......................................................................28 2 Healy v. Ratta, 292 U.S. 263 (1934). ..............................................................................29 3 Heckler v. Chaney, 470 U.S. 821(1985) ........................................................................... 6 4 Hill v. Tangherlini, 724 F.3d 965 (7th Cir. 2013)............................................................10 5 In re Incretin-Based Therapies Prods. Liab. Litig., 142 F. Supp. 3d 1108 (S.D. Cal. 2015) 6 ..................................................................................................................................... 3 7 Kucana v. Holder, 558 U.S. 233 (2010) ........................................................................... 5 8 Leedom v. Kyne, 358 U.S. 184 (1958).............................................................................12 9 Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001).................................................29 10 Maldonado v. Fasano, 67 F. Supp. 2d 1170 (S.D. Cal. 1999) .......................................... 5 11 Markham v. Cabell, 326 U.S. 404, 411 (1945)................................................................. 7 12 Mistretta v. United States, 488 U.S. 361 (1989) .................................................. 21, 22, 23 13 NLRB v. SW Gen., Inc., 137 S. Ct. 929 (2017) ................................................................. 5 14 No. 2:10-cv-1413-SRB, 2011 WL 13137062 (D. Ariz. Oct. 21, 2011)............................. 6 15 Panama Refining Co. v. Ryan, 293 U.S. 388 (1935)..................................................23, 25 16 Pinnacle Armor, Inc. v. United States, 648 F.3d 708 (9th Cir. 2011) ............................... 5 17 Piscione v. Ernst & Young, L.L.P., 171 F.3d 527 (7th Cir.1999), ....................................10 18 Save Our Heritage Org. v. Gonzales, 533 F. Supp. 2d 58 (D.D.C. 2008)........................23 19 Save Our Heritage Org. v. Gonzalez, 533 F. Supp. 2d 58 (D.D.C. 2008)........................13 20 Sharp Healthcare v. Leavitt, 555 F. Supp. 2d 1121 (S.D. Cal. 2008) ............................... 7 21 Sierra Club v. Ashcroft, No. 04-cv-272-LAB, 2005 U.S. Dist. LEXIS 44244 (S.D. Cal. 22 Dec. 12, 2005)..........................................................................13, 14, 17, 18, 22, 24, 25 23 Spencer Enterprises, Inc. v. United States, 345 F.3d 683, 689 (9th Cir. 2003) ................12 24 Staacke v. U.S. Sec’y of Labor, 841 F.2d 278 (9th Cir. 1988) .........................................12 25 Tinian Women Ass’n v. U.S. Dep’t of the Navy, No. 16-cv-00022, 2017 U.S. Dist. LEXIS 26 170080 (N. Mariana Islands 2017) ..............................................................................26 27 Touby v. United States, 500 U.S. 160 (May 20, 1991)...............................................24, 25 28 Traynor v. Turnage, 485 U.S. 535 (1988) ........................................................................ 4

MEM. IN SUPP. OF SUMM. J.

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1 United States v. Arce-Hernandez, 163 F.3d 559 (9th Cir. 1998)....................................... 5
2 United States v. Bozarov, 974 F.2d 1037 (9th Cir. 1992) ................................................12
3 United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) ...............................25
4 United States v. Dahl, 314 F.3d 976 (9th Cir. 2002) ........................................................ 6
5 Valenzuela Gallardo v. Lynch, 818 F.3d 808 (9th Cir. 2016) ..........................................28
6 Webster v. Doe, 486 U.S. 592 (1988) ............................................................................... 5
7 Wheeler v. Premier Credit of North Am., LLC, 80 F. Supp. 3d 1108 (S.D. Cal. 2015) ..... 3
8 Wilkinson v. Austin, 545 U.S. 209 (2005)........................................................................30
9 Zivotofsky v. Kerry, 135 U.S. 2076 (2015) ................................................................25, 26
10 Statutes 11 5 U.S.C. § 500 ................................................................................................................. 4 12 5 U.S.C. § 701(a)(1)......................................................................................................... 5 13 5 U.S.C. § 706(2)(A) ....................................................................................................4, 6 14 6 U.S.C. § 256 ................................................................................................................18 15 21 U.S.C. § 811(h) ..........................................................................................................24 16 Consolidated Appropriations Act, 2008, Pub. L. No. 110-161 ................................1, 7, 22 17 IIRIRA § 101(a)............................................................................................................... 6 18 IIRIRA § 101(b) .............................................................................................................. 6 19 IIRIRA § 102 ......................................................... 1, 2, 7, 8, 10, 15, 16, 20, 21, 24, 27, 28 20 IIRIRA § 102(a)...................................................................4, 5, 6, 7, 8, 10, 14, 15, 17, 22 21 IIRIRA § 102(b) ................................................................................. 4, 5, 6, 7, 11, 17, 18 22 IIRIRA § 102(b)(1) .........................................................................................................17 23 IIRIRA § 102(b)(1)(A) ...............................................................................................1, 17 24 IIRIRA § 102(b)(1)(B)....................................................................................................17 25 IIRIRA § 102(b)(1)(C)................................................................................................6, 10 26 IIRIRA § 102(b)(2) .........................................................................................................18 27 IIRIRA § 102(c)......................................................... 1, 2, 4, 5, 6, 7, 16, 17, 18, 22, 23, 25 28 IIRIRA § 102(c)(1) ...............................................................................................5, 16, 18

MEM. IN SUPP. OF SUMM. J.

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1 IIRIRA § 102(c)(2) ............................................................................. 3, 12, 27, 28, 29, 30 2 REAL ID Act of 2005, Pub. L. No. 109-13...................................................................... 1
3 Secure Fence Act of 2006, Pub. L. No. 109-367 .........................................................1, 24 4 Regulations 5 82 Fed. Reg. 35,984 (Aug. 2, 2017) ......................................................................8, 14, 15 6 82 Fed. Reg. 35,985 (Aug. 2, 2017) ..........................................................................14, 16 7 82 Fed. Reg. 42,829 (Sept. 12, 2017) ............................................................................... 8 8
Constitutional Provisions 9
U.S. Const. art I, § 1 .......................................................................................................20 10
U.S. Const. art. III, § 1 ....................................................................................................28 11 12 Legislative History 13 151 Cong. Rec. E243-03 (Feb. 15, 2005) ........................................................................18 14 151 Cong. Rec. H437-02 (Feb. 9, 2005)....................................................................19, 20 15 151 Cong. Rec. H453-04 (Feb. 9, 2005)....................................................................18, 19 16 151 Cong. Rec. H527-03 (Feb. 10, 2005)........................................................................19 17 151 Cong. Rec. H536-03 (Feb. 10, 2005)..................................................................19, 28
18
19
20
21
22
23
24
25
26
27
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1

INTRODUCTION

2

Over twenty years ago, in the face of perceived exigent threats from illegal

3 immigration and drug trafficking, Congress enacted the Illegal Immigration Reform and

4 Immigrant Responsibility Act of 1996. That Act, and a series of subsequent Acts in 2005,

5 2006, and 2008, required the Department of Homeland Security (“DHS”) to take such

6 actions as necessary “to gain operational control of the southwest border” including by

7 completing priority barriers by the end of 2008. See IIRIRA § 102(b)(1)(A).1

8

These Acts envisioned that portions of the southwest border would be secured by

9 physical barriers. Congress in fact mandated certain specific barriers be constructed to

10 shut down known smuggling corridors. Yet in 2005, after nearly a decade of delay

11 completing “the last piece of fence” in an area near San Diego, Congress granted

12 extraordinary power to the Secretary of DHS to waive an unlimited number of federal,

13 state, and local laws to finally complete the job mandated in 1996. The proponents of the

14 2005 amendment repeatedly discussed the Secretary’s extraordinary waiver authority in

15 the context of ensuring the completion of this very specific portion of fencing.

16

Now, after nearly a decade without any further Congressional action regarding

17 section 102, the Defendants2 have dusted off section 102(c) and invoked the

18 extraordinary waiver power to build “replacement” barriers and prototypes that will not

19 yield any additional fencing. These projects are not actual attempts to “deter illegal

20

21

22 1 The law at issue here is “section 102” of the Illegal Immigration Reform and Immigrant
23 Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546
24 (codified at 8 U.S.C. § 1103 note), as amended by REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, 119 Stat. 306, as amended by Secure Fence Act of 2006, Pub. L. No.
25 109-367, § 3, 120 Stat. 2638, as amended by Consolidated Appropriations Act, 2008,
26 Pub. L. No. 110-161, Div. E, Title V, § 564(a), 121 Stat. 2090-91 (2007).
27 2 Defendants Department of Homeland Security, Acting Secretary Elaine Duke, and the United States of America (collectively, “Defendants” or “Government”)
28

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1 crossings” or secure the border as required by section 102, a conclusion supported by

2 undisputed facts as the Coalition Plaintiffs3 demonstrate below.

3

As a result, the waivers are invalid under the Administrative Procedure Act. Under

4 section 102, the Secretary only has authority to construct “additional barriers” that will

5 “deter illegal crossings in areas of high illegal entry,” a requirement that it not captured

6 by the waiver provision. Yet the projects at issue here will neither deter illegal crossings

7 nor be constructed in areas of high illegal entry.

8

Even if this Court adopted the Governments’ interpretation of the scope of the

9 Secretary’s waiver authority, and held she could waive compliance with a challenge to

10 the very requirements contained in Section 102 itself, that would not displace this Court’s

11 inherent ultra vires authority. The waivers here are ultra vires for the same reasons they

12 cannot withstand scrutiny under the APA as well as those discussed below.

13

The Government’s attempt to invoke section 102 authority for these projects also

14 confirms the concerns raised in litigation a decade ago. The waivers here demonstrate the

15 Government has interpreted section 102 in a manner that results in an impermissibly

16 broad and vague delegation of authority that cannot withstand constitutional scrutiny. In

17 2005, a court in this district upheld section 102 against a non-delegation challenge

18 because it interpreted subsection 102(c)’s waiver authority as limited to the project near

19 San Diego mandated by the 1996 legislation. Yet, contrary to the decision in that case,

20 the Government now seeks to extend this waiver authority to any border project, thereby

21 resulting in section 102 violating the non-delegation doctrine.

22

Similarly, the waiver authority violates the Constitution’s Presentment Clause by,

23 “[i]n both legal and practical effect,” authorizing the Secretary of the DHS to repeal acts

24 of Congress in her sole discretion. Since it must retain the authority to repeal legislation,

25 Congress is constrained from vesting that power in the Secretary.

26
27 3 Plaintiffs Defenders of Wildlife, Animal Legal Defense Fund, and Sierra Club (collectively, “Coalition Plaintiffs” or “Plaintiffs”).
28

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1

Finally, the Government attempts to preclude this Courts’ review of its actions by

2 adopting an overreaching view of the jurisdictional stripping provision of subsection

3 102(c)(2). Under this interpretation, no court has the authority to determine whether the

4 Secretary has exceeded her statutory authority. This reading of the law is contrary to

5 Ninth Circuit and Supreme Court ultra vires review precedent. Furthermore, if such

6 reading is accepted, it would confirm Congress’s unconstitutional overextension of power

7 in Subsection 102(c)(2) by insulating congressional as well Secretarial action from

8 judicial scrutiny in violation of Article III and bedrock principles of separation of powers

9 and federalism.

10

Consequently, Defendants’ conduct here is unauthorized, unconstitutional, and

11 void, and this Court is within its judicial authority to declare precisely that and invalidate

12 the waivers at issue here by granting the Coalition Plaintiffs summary judgment.

13

LEGAL STANDARDS

14

“Summary judgment is appropriate if the ‘pleadings, depositions, answers to

15 interrogatories, and admissions on file, together with the affidavits, if any, show that

16 there is no genuine issue as to any material fact and that the moving party is entitled to

17 judgment as a matter of law.’” Wheeler v. Premier Credit of North Am., LLC, 80 F. Supp.

18 3d 1108, 1111 (S.D. Cal. 2015) (quoting FED. R. CIV. P. 56(c)). Summary judgment is

19 particularly appropriate where the issues presented involve pure questions of law. See,

20 e.g., In re Incretin-Based Therapies Prods. Liab. Litig., 142 F. Supp. 3d 1108, 1114 (S.D.

21 Cal. 2015).

22

23

24

25

26

27

28

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1

ARGUMENT

2 I. THE SECRETARIES’ DETERMINATIONS THAT THE PROJECTS ARE IN “AREAS OF

3

HIGH ILLEGAL ENTRY” AND TO PROCEED WITH THE PROJECTS WITHOUT

SATISFYING THE CONSULTATION REQUIREMENT VIOLATE THE ADMINISTRATIVE

4

PROCEDURE ACT.

5

Prior to utilizing the waiver authority in section 102(c) of IIRIRA, the Secretary

6 must (1) determine that additional physical barriers are “necessary” to deter illegal

7 crossings in “areas of high illegal entry,” and (2) “consult” with the Secretaries of Interior

8 and Agriculture, and States, among others, “to minimize the impact on the environment,

9 culture, commerce, and quality of life…” IIRIRA § 102(a), (b). Judicial review of the

10 Secretary’s decisions pursuant to these subsections is governed by the APA, under which

11 the Court must decide whether the decisions were “arbitrary, capricious, an abuse of

12 discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). As discussed

13 below, Secretaries Duke and Kelly issued the San Diego and Calexico waivers without

14 complying with these prerequisites in violation of the Administrative Procedure Act, 5

15 U.S.C. § 500 et seq.

16

A. The Secretary’s actions required by subsections (a) and (b) of section

17

102 of IIRIRA are reviewable under the APA.

18

The Supreme Court has “repeatedly” acknowledged “the strong presumption that

19 Congress intends judicial review of administrative action.” Traynor v. Turnage, 485 U.S.

20 535, 542 (1988) (providing examples) (quoting Bowen v. Mich. Acad. of Family

21 Physicians, 476 U.S. 667, 670 (1986)). “Indeed, judicial review of [] administrative

22 action is the rule, and nonreviewability an exception which must be demonstrated… [by]

23 ‘clear and convincing evidence’” Barlow v. Collins, 397 U.S. 159, 166-67 (1970)

24 (citation omitted). “This presumption is overcome only in two narrow circumstances. The

25 first … is when Congress expressly bars review by statute… The second applies in ‘those

26 rare instances where statutes are drawn in such broad terms that in a given case there is

27 no law to apply.’” Pinnacle Armor, Inc. v. United States, 648 F.3d 708, 718-19 (9th Cir.

28

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1 2011) (citing 5 U.S.C. § 701(a)(1); Bd. of Governors of Fed. Reserve Sys. v. MCorp Fin.,

2 Inc., 502 U.S. 32, 44 (1991)) (quoting Webster v. Doe, 486 U.S. 592, 599 (1988)).

3

The Supreme Court has “consistently applied this interpretive guide to legislation

4 regarding immigration, and particularly to questions concerning the preservation of

5 federal-court jurisdiction.” Kucana v. Holder, 558 U.S. 233, 235 (2010). “The default

6 rule [] that agency actions are reviewable. … applies in the post-IIRIRA immigration

7 context.” ANA Int’l, Inc. v. Way, 393 F.3d 886, 890 (9th Cir. 2004) (citations omitted).

8 Recognizing the importance of preserving judicial review, “lower courts have … read the

9 jurisdiction-removing statutes of IIRIRA narrowly (and Supreme Court precedents

10 broadly) …” Maldonado v. Fasano, 67 F. Supp. 2d 1170, 1182 n.13 (S.D. Cal. 1999).

11 Courts have further found that Congress made “specific reference” within IIRIRA when

12 it intended to “amend or repeal statutes granting jurisdiction to the federal courts.” United

13 States v. Arce-Hernandez, 163 F.3d 559, 563 (9th Cir. 1998).

14

The waiver authority and jurisdictional limitation in subsection 102(c) has no

15 bearing on judicial review of subsections 102(a) and (b). Starting with “the language of

16 the statute itself,” Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102,

17 108 (1980), the pertinent text of the waiver provides: “Notwithstanding any other

18 provision of law, the Secretary of Homeland Security shall have the authority to waive all

19 legal requirements such Secretary, in such Secretary’s sole discretion, determines

20 necessary to ensure expeditious construction of the barriers and roads under this section.”

21 IIRIRA § 102(c)(1) (emphasis added). “The ordinary meaning of ‘notwithstanding’ is ‘in

22 spite of,’ or ‘without prevention or obstruction from or by,’” NLRB v. SW Gen., Inc., 137

23 S. Ct. 929, 939 (2017) (citations omitted), and “other” commonly means “being the one

24 or ones distinct from that or those first mentioned or implied.” Merriam-Webster,

25 https://www.merriam-webster.com/dictionary/other (“not the same”).

26

The Ninth Circuit has determined the “reach” of the phrase “notwithstanding” by

27 “taking into account the whole of the statutory context in which it appears.” Consejo de

28 Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 1157, 1168 (9th Cir.

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1 2007) (citation omitted). Under this view, the phrase “notwithstanding” demonstrates an

2 intent to limit the waiver authority solely to laws other than the one in which the waiver

3 is contained, meaning the requirements of the section itself are not waivable. See, e.g.,

4 United States v. Dahl, 314 F.3d 976, 978 (9th Cir. 2002) (“notwithstanding any other

5 provision of law” read “to mean just what it says”); Cisneros v. Alpine Ridge Grp., 508

6 U.S. 10 (1993) (phrase interpreted as “to supersede all other laws” (emphasis added));

7 Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1083 (9th Cir. 2014) (such clauses

8 “nullify conflicting provisions of law.” (emphasis in original)).

9

The court in United States v. Arizona also indicated that some DHS actions under

10 section 102 “are reviewable under § 706(2)(A).” United States v. State of Arizona, No.

11 2:10-cv-1413-SRB, 2011 WL 13137062, at *8-*9 (D. Ariz. Oct. 21, 2011) (but

12 dismissing claims due to “ongoing, non-final actions” and finding § 102(b) did “not

13 mandate any discrete agency action”). Similarly, the Congressional Research Service has

14 also indicated that APA review is available for subsection 102(b). Michael John Garcia,

15 Cong. Research Serv., R43975, Barriers Along the U.S. Borders: Key Authorities and

16 Requirements 16 (2017) (“Secretary’s determination not to place fencing at a location

17 would be afforded a very high degree of deference by a reviewing court” and “the

18 ‘notwithstanding’ clause enables DHS to readily answer claims by parties seeking to

19 compel some portion of the required border fencing at a [specific] location”).

20

The “high illegal entry” and consultation requirements of subsections 102(a) and

21 (b) are, in fact, conditions that must be satisfied before Secretary can invoke the

22 subsection 102(c) authority. Unless the barriers’ purpose is to control access in “areas of

23 high illegal entry” and the Secretary has consulted with the parties identified in

24 subsection 102(b)(1)(C), the waiver is unavailable. Accordingly, the conditions in

25 subsections 101(a) and (b) must be given effect. See, e.g., Heckler v. Chaney, 470 U.S.

26 821, 829 (1985) (“statute generally should be read “to give effect, if possible, to every

27 clause…’” (citation omitted); Corley v. United States, 556 U.S. 303, 314 (2009) (“statute

28 should be construed … so that no part will be inoperative or superfluous, void or

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1 insignificant.”); Consejo, 482 F.3d at 1168-69 (“cardinal principle of statutory

2 construction is to save and not to destroy.”).

3

Congress’s addition of the consultation requirement to subsection 102(b) after the

4 waiver authority had been expanded in 2005, see Pub. L. No. 110-161 Div. E § 564

5 (2007), further supports construing subsection (c) as extraneous to the remaining

6 subsections 102(a) and (b). It would be absurd for Congress to adopt a requirement upon

7 the Secretary and, simultaneously, grant the Secretary authority to waive that very

8 requirement in the same amendment. See Markham v. Cabell, 326 U.S. 404, 411 (1945)

9 (“the normal assumption is that where Congress amends only one section of a law,

10 leaving another untouched, the two were designed to function as parts of an integrated

11 whole.”). This is particularly so as the consultation requirement addresses environmental

12 issues that would otherwise be subject to laws Congress had originally envisioned as

13 waivable by the Secretary.

14

This restrained reading of subsection 102(c)’s influence is also consistent with the

15 congressional intent for the waiver: allowing the Secretary to disregard laws that may

16 hinder “expeditious construction” of border infrastructure – e.g., NEPA and the ESA.

17 Determining locations to be areas of high illegal entry and consulting with affect parties,

18 however, are directed to project location and design, rather than potentially time-

19 consuming permitting and procedural compliance. See Griffin v. Oceanic Contractors,

20 Inc., 458 U.S. 564, 575 (1982) (“absurd results are to be avoided if alternative

21 interpretations consistent with the legislative purpose are available.”).

22

Judicial review of subsections 102(a) and (b) would also not endanger the general

23 purpose of section 102. “Congress intends the executive to obey its statutory commands

24 and, accordingly, that it expects the courts to grant relief when an executive agency

25 violates such a command.” Bowen, 476 U.S. at 681. If Congress intended to shield the

26 Secretary’s determinations regarding necessity and “areas of high illegal entry” from

27 review, including such prerequisites in subsection (a) would have been unnecessary. See

28 Sharp Healthcare v. Leavitt, 555 F. Supp. 2d 1121, 1125 (S.D. Cal. 2008) (argument

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1 against review implied agency “may disregard Congress’s express statutory command.”).

2 Since it does not endanger the general purposes of section 102, judicial review of the

3 Secretary’s actions are appropriate. See Cnty. of Esmeralda v. U.S. Dep’t of Energy, 925

4 F.2d 1216, 1218-19 (9th Cir. 1991) (statute making determinations “at the discretion of

5 the Secretary” not “endangered by judicial review”).

6

B. The Secretary’s decisions required by subsections 102(a) and (b) of

7

IIRIRA are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

8

On August 2, 2017, former DHS Secretary Kelly “determined” that the San Diego

9 Sector “remains an area of high illegal entry.” Determination Pursuant to Section 102 of

10 the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as Amended,

11 82 Fed. Reg. 35,984, 35,984 (Aug. 2, 2017). Similarly, on September 17, 2017, Secretary

12 Duke also “determined” that the “Border Patrol’s El Centro Sector is an area of high

13 illegal entry.” Determination Pursuant to Section 102 of the Illegal Immigration Reform

14 and Immigrant Responsibility Act of 1996, as Amended, 82 Fed. Reg. 42,829, 42,830

15 (Sept. 12, 2017). Combined, the Secretaries provided five sentences of “support” for

16 these determinations. The Secretaries’ “areas of high illegal entry” determinations

17 pursuant to subsection 102(a), however, are contradicted by DHS data concerning the

18 amount of illegal entry, Border Patrol’s effectiveness, and practices.

19

As DHS reported in September 2017, “With respect to border enforcement outputs,

20 available data indicate that the southwest land border is more difficult to illegally cross

21 today than ever before.” Statement of Undisputed Material Facts in Support of Plaintiffs

22 Defenders of Wildlife, Animal Legal Defense Fund, and Sierra Club’s Motion for

23 Summary Judgment ¶ 13 (hereinafter “Pls.’ Stmt.”). The number of apprehensions

24 “serves as a long-standing proxy measure of illegal flows.” Id. ¶ 15. Throughout the

25 Southwest Border, Border Patrol made 408,870 apprehensions in 2016, a 75 percent drop

26 from 1.64 million in 2000. Id. ¶¶ 13, 16. Over this same period, apprehensions decreased

27 by 79 percent in the San Diego Sector and 92 percent in the El Centro Sector. Id. ¶¶ 17-

28

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1 18. When IIRIRA was first passed in 1996, the San Diego Sector’s 483,815

2 apprehensions accounted for 32 percent of all Border Patrol apprehensions along the

3 Southwest border, but, by 2016, less than 8 percent of apprehensions occurred in this

4 sector. Id. ¶ 18.

5

The decrease in illegal migration has been more dramatic during since the Trump

6 Administration has been in office. During the period from when this Administration

7 began to the time when Secretary Kelly issued the San Diego Waiver (February through

8 July 2017), the available data demonstrates a drop in apprehensions by more than 60

9 percent from the same period in 2016 along the Southwest Border, as well as 51 percent

10 in the San Diego Sector and 28 percent in the El Centro Sector. Id.

11

In addition to the decrease in apprehensions, Border Patrol has also increased its

12 interdiction effectiveness between points of entry on the Southwest border every year it

13 has been reported by DHS, from 79.3 percent in fiscal year 2014 to 82.7 percent in 2016.

14 Id. ¶ 22. The San Diego and El Centro Sectors also have had better apprehension rates

15 than any other southwestern sector. Id. ¶ 35.

16

Similar to the performance measures, the allocation of Border Patrols’ resources

17 does not support the “areas of high illegal entry” conclusions. Border Patrol “resources

18 are deployed to those areas deemed to be the highest risk.” Id. ¶ 27 (“Border Patrol uses

19 … data, to assign risk scores to each sector, which informs resource deployments.”). In

20 2016, there were more than three times the number of Border Patrol agents in the

21 Southwest Border Sectors than there were in 1996. Id. ¶ 26. Although the number of

22 agents along the Southwest border was 8.6 percent lower in 2016 than the peak in 2013,

23 agents deployed in the San Diego and El Centro Sectors dropped by 19 and 10 percent,

24 respectively, over the last three full fiscal years. Id. ¶¶ 29-31. Also, twenty years ago,

25 agents in the San Diego sector accounted for 27 percent of all Border Patrol agents in the

26 Southwestern border, which dropped to 12 percent by 2016. Id. ¶ 28. Thus, in addition to

27 the decrease in illegal border crossings and improved performance, Border Patrol has

28

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1 been allocating its human resources away from the San Diego and El Centro Sectors in

2 comparison to its other Southern border sectors.

3

In addition to not being “areas of high illegal entry,” there is no indication that the

4 replacement and the prototype walls are “necessary … to deter illegal crossings.” IIRIRA

5 § 102(a). DHS has already spent more than $2 billion to install 705 miles of fencing

6 along the border. Pls.’ Stmt. ¶ 33. “Despite these investments, CBP cannot measure the

7 contribution of fencing to border security operations along the southwest border because

8 it has not developed metrics for this assessment.” Id. The existing data does nonetheless

9 suggest that barriers may not be the most effective means of preventing illegal

10 immigration. From 2013 through 2015, for example, the San Diego Sector “had the

11 highest estimated apprehension rate in the sector (77 percent) in zones with no fencing.”

12 Id. ¶ 35. The El Centro Sector’s apprehension rate was 70 percent in in areas with no

13 fencing, which is above the total rate of 67 percent throughout the sector. Id.

14

In addition to these determinations required by subsection 102(a), the Secretary has

15 a nondiscretionary duty to “consult with the Secretary of the Interior, the Secretary of

16 Agriculture, States, local governments, Indian tribes, and property owners” under

17 subparagraph 102(b)(1)(C). Though not defined in section 102, “consultation” in

18 common use means “[t]he act of asking the advice or opinion of someone…, or “[a]

19 meeting in which parties consult or confer.” Black’s Law Dictionary (10th ed. 2014).

20 “Consultation implies an exchange of views or a request for advice… Consulting with

21 others supplements the information an individual has in order to reach a final judgment.”

22 Piscione v. Ernst & Young, L.L.P., 171 F.3d 527, 536-37 (7th Cir.1999), overruled on

23 other grounds by Hill v. Tangherlini, 724 F.3d 965 (7th Cir. 2013). “An ordinary

24 meaning of the word consult is to ‘seek information or advice from (someone with

25 expertise in a particular area)’ or to ‘have discussions or confer with (someone), typically

26 before undertaking a course of action.’” California Wilderness Coal. v. U.S. Dep’t of

27 Energy, 631 F.3d 1072, 1087 (9th Cir. 2011) (emphasis in original) (citation omitted).

28

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1

For the San Diego Waiver,4 DHS prepared a memorandum summarizing resource

2 surveys, analyzes potential effects, and provides best management practices. See Doc.

3 #18-2 (Ex. 14). Although the Secretary had already determined it necessary to waive

4 thirty-seven statutes on August 2, 2017, CBP did not have “[f]ield surveys for natural and

5 cultural resources … conducted [until] August 23, 2017.” Doc. #18-2 (Ex. 14),

6 PageID.425. The environmental analysis, moreover, was also “[b]ased on the results of

7 the field surveys and [CBP’s] knowledge of the Project Area,” without any input from

8 other parties. Id. at PageID.427. This process is also inconsistent with DHS practices in

9 previous use of waivers. Under the waivers issued between 2008 and 2011, “[p]rior to

10 fence construction, CBP prepared Environmental Stewardship Plans (ESPs) that

11 summarized the natural and cultural resource surveys conducted during fence planning

12 and estimated the potential environmental impacts based on the initial fence design.” Pls.’

13 Stmt. at ¶ 38. The ESPs were also made available to the public on the CBP website. Id.

14 Prior to preparing the ESP, in some instances, CBP “prepared a Biological Resources

15 Plan (BRP) to identify the presence of sensitive biological resources … and potential

16 impacts on these resources … provided the BRP to affected resource agencies and land

17 managers for review. The BRP was [then] appended to the [ESP].” Id. ¶ 39. After

18 construction, CBP would prepare Environmental Stewardship Summary Reports (ESSRs)

19 “to document the final impacted area, as compared to the original estimates contained in

20 the ESPs…” Id. ¶ 38.

21

Although the Secretary may be afforded broad discretion to determine consultation

22 procedures, none of what DHS or its components have completed remotely satisfy the

23 consultation requirement under subsection 102(b).

24

25

26

27 4 Plaintiffs are unaware of any similar review conducted for the Calexico Waiver. 28

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1 II. DEFENDANTS’ WAIVERS ARE VOID ULTRA VIRES ACTS THAT ARE NOT

2

AUTHORIZED UNDER SECTION 102.

3

A. This Court has inherent authority to determine if the waivers exceeded the Secretary’s statutory authority.

4

Notwithstanding Congressional bars on judicial review, courts retain inherent

5 authority to determine whether “the Secretary acted in excess of [her] delegated

6 authority.” United States v. Bozarov, 974 F.2d 1037, 1045 (9th Cir. 1992) (citing Dart v.

7 United States, 848 F.2d 217 (D.C. Cir. 1988) and Leedom v. Kyne, 358 U.S. 184, 185

8 (1958)); see also Staacke v. U.S. Sec’y of Labor, 841 F.2d 278, 281 (9th Cir. 1988)

9 (“Even where the statutory provision absolutely bars judicial review, . . . jurisdiction

10 exists where defendant is charged with violating a clear statutory mandate or

11 prohibition”). As the Ninth Circuit explained, a statute that seeks to preclude judicial

12 review cannot remove a Court’s inherent ultra vires review authority because the

13 Constitution mandates that an aggrieved party have “a meaningful and adequate

14 opportunity for judicial review of the regulation that he argue[s] was promulgated in

15 excess of the agency’s statutory authority.” Bozarov, 974 F.2d at 1045, n.8 (explaining

16 MCorp. Financial, 502 U.S. 32). Where a statute itself fails to provide such an avenue of

17 “meaningful and adequate” judicial review, the Court’s inherent ultra vires authority fills

18 that gap. Id. (following Dart, 848 F.2d at 222 (same principle)); see also Spencer

19 Enterprises, Inc. v. United States, 345 F.3d 683, 689 (9th Cir. 2003) (recognizing that

20 even if different provisions of IIRIRA that preclude all review of certain decisions

21 applied, “the courts retain jurisdiction to review whether a particular decision is ultra

22 vires [as to] the statute in question”). Thus, subsection 102(c)(2)’s jurisdictional stripping

23 provision cannot eliminate this Court’s inherent ultra vires jurisdiction.

24

25

26

27

28

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1

B. The waivers are ultra vires because they fall outside the statutory scope

2

of authority Congress granted to the Secretary.

3

The Secretary’s waivers here go far beyond those that were the subject of prior

4 litigation and are ultra vires for several reasons. In prior waiver cases,5 courts upheld the

5 constitutionality of section 102 because the specific projects at issue squarely fell within

6 the limited scope of those intended by Congress, i.e., projects specifically mandated by

7 subsection 102(b). Here, the waivers do not relate to the construction of any “additional

8 barriers,” much less mandated ones, and instead involve replacement of fencing and a

9 prototype construction project to allow for the evaluation of future barrier designs.

10

In upholding those prior waivers, the courts held that section 102’s waiver

11 authority was subject to several boundaries, including the requirement that waiver must

12 be “necessary to ensure expeditious construction” of “additional physical barriers and

13 roads . . . to deter illegal crossings in areas of high illegal entry.” Defenders of Wildlife v.

14 Chertoff, 527 F. Supp. 2d 119, 127 (D.D.C. 2007) (emphasis added) (quoting § 102). The

15 Defenders of Wildlife court, though acknowledging it was unprecedented in theoretical

16 breadth as to the substantive laws that could be waived, concluded the section 102 waiver

17 authority was indeed limited because “the Secretary may only exercise the waiver

18 authority for the ‘narrow purpose’ prescribed by Congress: ‘expeditious completion’ of

19 the border fences authorized by IIRIRA in areas of high illegal entry.” Id. at 128

20 (emphases added) (quoting Sierra Club v. Ashcroft, No. 04-cv-272-LAB, 2005 U.S. Dist.

21 LEXIS 44244, at *20 (S.D. Cal. Dec. 12, 2005)). The Sierra Club court went even

22 further, concluding that “Congress simply broadened the scope of the waiver authority of

23 the pre-existing delegation to ‘all laws,’ but again only for the narrow purpose of

24

25 5 See Sierra Club v. Ashcroft, No. 04-cv-272-LAB, 2005 U.S. Dist. LEXIS 44244 (S.D.
26 Cal. Dec. 12, 2005); Cnty. of El Paso v. Chertoff, No. EP-08-CA-196, 2008 WL 4372693
27 (W.D. Tex. Aug. 29, 2008); Save Our Heritage Org. v. Gonzalez, 533 F. Supp. 2d 58 (D.D.C. 2008); Defenders of Wildlife v. Chertoff, 527 F. Supp. 2d 119 (D.D.C. 2007).
28

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1 expeditious completion of the Triple Fence authorized by the IIRIRA.” Sierra Club, 2005

2 U.S. Dist. LEXIS 44244 (emphasis added).

3

1. The Secretary’s use of section 102(c) waivers to “replace existing

4

primary fencing” are ultra vires.

5

The grant of authority contained in section 102(a) is limited to “such actions as

6 may be necessary to install additional physical barriers and roads . . . in the vicinity of

7 the United States border to deter illegal crossings in areas of high illegal entry into the

8 United States.” IIRIRA § 102(a) (emphasis added). The Secretary’s waiver notices,

9 however, declared that DHS will “replace existing primary fencing.” 82 Fed. Reg. at

10 35,985; id. at 42,830. By its ordinary, obvious meaning, these “replacement” fences fall

11 outside this clear statutory mandate.

12

A replacement fence, first of all, is not an “additional physical barrier,” even under

13 the Government’s interpretation of that phrase, because it does not “add” a barrier, create

14 “more” barriers, or provide “extra” or “supplementary” barriers. See Doc. #18 at 23

15 (using the quoted terms to define “additional”). By definition, “replacement” results in no

16 net gain (no “addition”) because the new barrier is merely a substitute or successor to the

17 fence it is replacing. See Merriam-Webster, https://www.merriam-

18 webster.com/dictionary/replacement (“one that replaces another especially in a job or

19 function”); https://www.merriam-webster.com/dictionary/replaces (“to take the place of

20 especially as a substitute or successor”). This conclusion is compelled from the language

21 of the waivers themselves, which, instead of moving to “install additional physical

22 barriers” as required by subsection 102(a), clearly state that stating DHS “will replace

23 existing primary fencing,” 82 Fed. Reg. at 35,984; id. at 42,380 (emphasis added).

24

Second, the replacement projects near Calexico and San Diego are not in areas of

25 high illegal entry. See discussion supra § I.B. The “areas” in which these barriers will be

26 constructed already have fences, meaning there should be little to no illegal crossings

27 occurring in these areas. If, conversely, illegal crossings continue to occur despite the

28 existing fences, then support for the subsection 102(a) requirement that the barrier “deter

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1 illegal crossings” would be lacking. See Pls.’ Stmt. ¶¶ 36-37. Either way, one of the

2 subsection 102(a) requirements must inherently be absent and the waivers ultra vires.

3

The Government’s attempt to side-step this fatal flaw is unpersuasive. The waivers

4 and the Government’s prior briefing rely solely on sector-wide statistics. See 82 Fed.

5 Reg. at 35,984; id. at 42,380; Doc. #18 at 27. These are massive sectors, however, with

6 opportunities for crossings in varying levels of difficulty. The San Diego Sector’s

7 operational area includes 60 miles of land border with Mexico, 114 miles of costal

8 border, and encompasses 56,830 square miles. Pls.’ Stmt. ¶ 5. The El Centro Sector is

9 responsible for 70 miles of land border and covers 107,750 square miles. Id. ¶ 7. To

10 facilitate Border Patrol’s ability to manage such large areas, these sectors are broken

11 down into smaller subunits of stations and geographic zones. Id. ¶¶ 5-7. Illegal entry into

12 San Diego 39 border zones or El Centro’s 50 border zones is not uniform, yet the

13 Secretaries have declared all 164,000 square miles in these sectors to be areas of high

14 illegal entry. The sector-wide statistics, therefore, are not an appropriate measure for

15 projects that are addressing specific segments of the border area, especially since

16 Congress focused on closing specific points of illegal entry in enacting section 102.

17

2. The San Diego prototype project will not deter illegal crossing and

18

falls outside of section 102’s grant of authority.

19

The border wall prototypes project—to evaluate various design features for

20 potential inclusion in a border wall going forward—is similarly well outside the scope of

21 section 102 as it has no direct deterrent effect whatsoever.6 Adopting the Secretary’s

22 interpretation of subsection 102(a), which allows any actions that might indirectly benefit

23 future barrier design qualifies for a waiver, nullifies any limits to section 102. Under this

24 logic, the Secretary could issue a waiver covering Glacier National Park along the U.S-

25 6 Media footage of the already complete prototype project demonstrates as much. See
26 Jennifer Medina, Eight Ways to Build a Border Wall, N.Y. Times, Nov. 8, 2017,
27 https://nyti.ms/2j8STIR (showing major gaps between each model, none of which were built directly on the borderline).
28

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1 Canadian border, to build prototype walls if she believes that would facilitate evaluation

2 of future barrier design. Yet, that is clearly inconsistent with section 102’s intent based on

3 the statutory text when read as a whole.

4

Under the Government’s view, moreover, that action would be both appropriate

5 and also beyond judicial review, leaving no legal mechanism for preventing the Secretary

6 from carrying out such a plan. That logical implication of the Government’s position

7 demonstrates the waivers here far exceed any statutory mandate, and are thereforeultra

8 vires.

9

3. The waivers are also ultra vires because they are not “necessary to

10

ensure expeditious construction” as required by section 102(c).

11

Section 102’s waiver provision is expressly limited to situations in which a waiver

12 of laws is “necessary to ensure expeditious construction of the barriers and roads under

13 this section.” IIRIRA § 102(c)(1). Yet, the waivers here fail to provide any basis to

14 support that conclusion and merely parrot the statutory language. See 82 Fed. Reg. at

15 35,985; id. at 42,830. The Secretary’s failure to provide any information or basis to

16 support her conclusion that these waivers were necessary makes them ultra vires and

17 beyond the scope of authority granted her by Congress.

18

4. The Secretary’s waivers are ultra vires because section 102’s grant of authority was limited to the construction activities specifically

19

mandated by Congress.

20

When section 102 is construed as a whole, these projects also fall outside of the

21 limits of the waiver authority because Congress did not intent subsection 102(c) to apply

22 projects beyond those specifically mandated in the 1996, 2005, 2006, and 2008 Acts.

23 Avila v. Spokane Sch. Dist. 81, 852 F.3d 936, 940-41 (9th Cir. 2017) (“The plainness or

24 ambiguity of statutory language is determined by reference to the language itself, the

25 specific context in which the language is used, and the broader context of the statute as a

26 whole.”) (emphasis added) (quoting Geo–Energy Partners–1983 Ltd. v. Salazar, 613

27 F.3d 946, 956 (9th Cir. 2010)).

28

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1

Several features of section 102 make this conclusion evident. First, the grant of

2 authority in section 102 turns on a showing of necessity. Subsection 102(a), for example,

3 authorizes actions necessary to install additional barriers to deter illegal crossings in

4 areas of high illegal entry. In subsection 102(c), the waiver provision’s scope is limited to

5 waivers that are necessary to ensure expeditious construction of those additional barriers.

6 Subsection 102(b), in turn, provides the context as to what Congress meant both by

7 additional barriers and by necessity. In subsection 102(b)(1), Congress expressly

8 mandated that the Secretary take all necessary steps to “gain operational control of the

9 southwest border,” and to do so by completing construction of fencing in “priority areas”

10 by “not later than December 31, 2008.” IIRIRA § 102(b)(1)(A) & (B). It is these “priority

11 areas” that would allow the Secretary to achieve “operational control” of the southwest

12 border by the end of 2008, thus making expeditious construction “necessary.” See Pls.’

13 Stmt. ¶¶ 6, 7.

14

Along these line, a judge in this District construing this language concluded that

15 “the ‘barriers and roads’ alluded to” in subection 102(c) are “the Triple Fence project

16 located along the U.S.-Mexico border in the vicinity of San Diego,” Sierra Club, 2005

17 U.S. Dist. LEXIS 44244, at *19, which were those mandated in subsection 102(b) at the

18 time. This analysis was central to Judge Burn’s determination that the delegation of

19 authority was specifically limited because the waiver went only to the “completion of this

20 particular 14-mile California border Triple Fence authorized by IIRIRA, and only upon

21 the Secretary making a determination of necessity. The delegation is restricted to waiver

22 of laws solely in the context of construction of this Triple Fence, not their ‘repeal.’” Id. at

23 *21 (emphasis in original). Citing to the Government’s brief to support this narrow

24 construction, Judge Burns adopted the position that “the sole purpose for the Waiver”

25 was to terminate the litigation at issue. Id. (citing Defs.’ Br. at 11:2-4). Again, quoting the

26 Government, the court found that “Congress enacted (and amended) the Waiver

27 Legislation to permit the Secretary to expedite construction of this fence by removing

28

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1 certain legal impediments that presented an obstacle.” Sierra Club, No. 04-cv-272-LAB,

2 Defs.’ Br., ECF No. 36 at 15:3-8 (emphasis supplied by the Government).

3

The legislative history of section 102 further supports this plain reading. To that

4 end, the 1996 Act largely focused on constructing reinforced, second, and third fences in

5 the 14-mile section of the border near San Diego. Congress, for example, required the

6 Attorney General to “promptly acquire such easements as may be necessary” to complete

7 that mandate. Pub. L. No. 104-208, div. C, § 102(b)(2). Thus, Congress authorized the

8 Attorney General to waive the provisions of the Endangered Species Act and National

9 Environmental Policy Act, if necessary, “to ensure expeditious construction of the

10 barriers and roads under this section.” Id. at § 102(c).

11

The fact that this 14-mile stretch of additional fencing had not been completed,

12 despite the mandate, led supporters of the REAL ID Act of 2005 to expand the scope of

13 the section 102(c) waiver to complete the Triple Fence project as previously mandated in

14 1996. See, e.g., 6 U.S.C. § 256 (“It is the sense of the Congress that completing the 14-

15 mile border fence project required to be carried out under section 102(b) of the [IIRIRA

16 of 1996] should be a priority for the Secretary.”) As the sponsor of the bill, Rep.

17 Sensenbrenner stated: “[T]he REAL ID Act will waive Federal laws to the extent

18 necessary to complete gaps in the San Diego border security fence which is still stymied

19 8 years after congressional authorization.” 151 Cong. Rec. H453-04 atH454 (Feb. 9,

20 2005) (emphasis added).

21

Many proponents of the REAL ID Act shared this narrow understanding of the

22 waiver and assured the bill’s opponents the new 102(c)(1) authority would not be overly

23 broad. Compare, e.g., 151 Cong. Rec. E243-03 at E243 (Feb. 15, 2005) (statement of

24 Rep. Udall) (expressing concern about the overbreadth of the waiver authority), with,

25 e.g., 151 Cong. Rec. H453-04 at H471 (Feb. 9, 2005) (statement of Rep. Hoekstra)

26 (“H.R. 418 provides the Secretary . . . with authority to waive environmental laws, so that

27 the border fence running 14 miles east from the Pacific Ocean at San Diego may finally

28 be completed.”); id. (statement of Rep. Bono) (“The San Diego fence is a project that was

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1 started several years ago, but a 3.5-mile section of the fence was not completed due to

2 environmental concerns. . . . This legislation puts those priorities front and center . . .”);

3 id. at H457 (statement of Rep. Lungren) (“H.R. 418 will remove the impediments to

4 completing the fence along the San Diego corridor of our southern border.”).

5

Some opponents of the new waiver authority shared this view that it was limited to

6 completing the San Diego fence. Rep. Hastings, for example, stated:

7

H.R. 418 also allows the Secretary of Homeland Security to waive all laws

8

necessary for the construction of the San Diego border wall. None of us are of a mind to believe that the completion of the 3-mile gap in that wall should

9

not be undertaken.

10 151 Cong. Rec. H527-03 at H529 (Feb. 10, 2005) (emphasis added). An exchange

11 between two California representatives on competing sides of the issue further confirms 12 that “completing the 3 1/2 miles of border fencing” was “the issue driving this extreme

13 [waiver] language.” 151 Cong. Rec. H536-03 at H557 (Feb. 10, 2005).

14

The Congressional Budget Office’s estimate of the impact of H.R. 418 was also

15 based on a narrow understanding of the scope of the waiver authority.

16

[IIRIRA] provided for the construction of a series of roads and fences along

17

the U.S.-Mexico border near San Diego to deter entry of illegal immigrants.

All but about three miles of this barrier have been completed. Since

18

February 2004, completion of the barrier has been delayed because of

19

environmental conflicts with the Coastal Zone Management Act (CZMA).

H.R. 418 would permit DHS to waive this act and any other laws as

20

necessary to complete construction of the barrier.

21 Congressional Budget Office, Cost Estimate, H.R. 418 – REAL ID Act, as appearing in

22 151 Cong. Rec. H437-02 at H438 (Feb. 9, 2005). In interpreting the waiver provision, the

23 CBO concluded it would not impose significant additional costs because it merely

24 authorized

25

the Secretary of the Department of Homeland Security to waive any laws

26

necessary to complete construction of a physical barrier between the United

States and Mexico near San Diego, California, and prohibit any court from

27

having jurisdiction to hear claims or ordering relief for damage resulting

28

from the waiver of such laws. This provision would preempt state authority.

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1 Id. (emphasis added).

2

This legislative history confirms the plain reading of section 102 as a whole: the

3 waiver power means what it says by being limited to only those projects that were

4 “necessary” in 2005, 2006, and 2008 to complete the “priority areas” and allow the

5 Secretary to gain “operational control.” Congress did not intend to give future Secretary’s

6 authority to waive all laws (federal, state, and local) for projects that could not be

7 envisioned a decade ago.

8 III. THE BROAD AND UNBRIDLED GRANT OF WAIVER AUTHORITY IN SECTION 102

9

VIOLATES THE NON-DELEGATION DOCTRINE AS DEMONSTRATED BY DEFENDANTS ATTEMPT TO USE IT FOR PURELY POLITICAL OBJECTIVES.

10

As explained above, the scope of section 102’s authority is limited to situations

11 where “expeditious” construction of “additional” barriers are actually “necessary to deter

12 illegal crossings in areas of high illegal entry.” Because the waivers here fail that test,

13 they violate the Administrative Procedures Act and are ultra vires actions. To avoid that

14 conclusion, however, the Government argues for an interpretation of section 102’s

15 authority that is essentially without limit. Under the Government’s view, Congress has

16 provided the Secretary with unfettered, and unreviewable discretion to waive any and all

17 laws for a project even the very conditions precedent for the exercise of that authority

18 contained in section 102 itself. If that interpretation is accepted, then section 102 violates

19 the Constitution’s non-delegation doctrine under longstanding Supreme Court precedent.

20

Separation of powers between the three coordinate branches of our federal

21 government is a fundamental cornerstone of our democratic system of governance. A

22 component of separation of powers is the non-delegation doctrine, which protects the

23 partition of authority between the legislative and executive branches. Under Article I of

24 the Constitution, “[a]ll legislative powers herein granted shall be vested in a Congress of

25 the United States.” U.S. Const. art I, § 1. As shown below, in its adoption and repeated

26 amendments of IIRIRA’s section 102, Congress improperly delegated undefined and

27 open-ended power to the Secretary of DHS in violation of the non-delegation doctrine.

28

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1

As described above, the waivers at issue here relate to unauthorized “prototypes,”

2 “replacement” and “improvement” projects and other ambiguous work not contemplated

3 in section 102. That the Government asserts the Secretary has authority to proceed with

4 the projects demonstrates that, under the Government’s interpretation of section 102, the

5 law runs afoul of the non-delegation doctrine’s requirement that the Executive carry out

6 work that adheres to the direction provided by Congress. As the Supreme Court described

7 the requirement, to pass muster, legislation must articulate “an intelligible principle to

8 which the person or body authorized to exercise the delegated authority is directed to

9 conform.” Mistretta v. United States, 488 U.S. 361, 372 (1989). To assess whether an

10 Executive agency is operating under an intelligible principle, Congress is required to

11 clearly define its delegation by describing (1) the general policy to be achieved, (2) the

12 public agency to implement it, and (3) the boundaries of the delegated authority. Id. at

13 372-73.

14

Mistretta upheld the constitutionality of Congress’s creation of the federal

15 Sentencing Commission under the 1984 Sentencing Reform Act. Under the statute, the

16 Commission was directed to create sentencing guidelines for various categories of

17 offenses and defendants, with judicial review limited to appeals of sentences outside of,

18 or incorrectly applying to, the guidelines’ ranges of imprisonment. 488 U.S. at 367-68.

19 Importantly, the Mistretta Court took great care distinguishing the three elements of the

20 test and the substance of the authorization itself. The Court focused on the fact that the

21 legislation created multiple goals and purposes to articulate sentencing policy, such as to

22 effectuate certainty and fairness in sentencing, to avoid unwarranted disparities among

23 similarly situated defendants, to maintain flexibility for individualized sentences, and to

24 provide needed correctional treatment. Id. at 374. Congress also “prescribed the specific

25 tool—the guidelines system—for the Commission to use in regulating sentencing,” which

26 represents the substance of the authorization. Id.

27

In addition, the Court pointed to two sets of seven and eleven factors Congress had

28 provided to “guide the Commission in its formulation of offense categories.” Mistretta,

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1 488 U.S. at 375. The numerous agency constraints represented the boundaries of the

2 delegated authority, so that the Commission’s discretion was limited by the grade of the

3 offense, nature and degree of harm, and the offender’s age, education, or mental and

4 emotional condition. Id. at 374-76. Congress even provided explicit limits on the range of

5 minimum and maximum sentences, which effectively (and in the case of statutory range

6 limits, literally) act as additional boundaries in developing just sentences. Id. Such clearly

7 delineated policies and boundaries satisfied the Court in Mistretta by providing an

8 intelligible principle, distinct from the authorization itself, to guide and circumscribe an

9 agency’s implementation of that authorization.

10

Applying the three prongs of Mistretta, the Government can only point with clarity

11 to the second element – the public agency applying the legislation. In 2008, Congress

12 amended section 102 and replaced the Attorney General with the Secretary of Homeland

13 Security. Pub. L. No. 110-161, Div. E, Title V, § 564(a). This is the only aspect of

14 IIRIRA that comports with Mistretta.

15

Section 102 authorizes two actions: to “install additional physical barriers and

16 roads . . . in areas of high illegal entry into the United States” and to “waive all legal

17 requirements” in support of such construction. IIRIRA § 102(a), (c). These represent the

18 entire substance of the delegated legislative authority. A meaningful application of

19 Mistretta shows Congress failed to provide any specific general policies or boundaries to

20 constitute an intelligible principle for installing physical barriers along the southern

21 border. See Mistretta, 488 U.S. at 372–373 (finding constitutional question satisfied

22 when Congress, through the statute, “clearly delineates” among the three requisite

23 elements).

24

To start, section 102(a) provides no general policy guidance by which this Court

25 can assess Mistretta’s first prong. In fact, earlier district courts, heavily relied upon by the

26 Government, could not agree on which language might serve as IIRIRA’s general policy.

27 For example, the court in Sierra Club v. Ashcroft found that “improvement of U.S. border

28 protection is the clearly delineated general policy.” 2005 U.S. Dist. LEXIS 44244, at *20.

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1 However, the Defenders of Wildlife v. Chertoff court found the policy to be “to

2 expeditiously install additional physical barriers and roads . . . to deter illegal crossings in

3 areas of high illegal entry,” 527 F. Supp. 2d at 127. These are not mere differences in

4 semantics. While Sierra Club established a general policy of improving border

5 protection, however vague, Defenders of Wildlife conflated the policy of the authorization

6 with the authorization itself.

7

A stated policy of installing physical barriers cannot be the substantive guide to

8 waiving laws for installing such physical barriers. The waiver provision was not amended

9 after the Sierra Club decision, yet other courts repeated the same circular error made by

10 Defenders of Wildlife. See City of El Paso v. Chertoff, No. EP-08-CA-196-FM, 2008 U.S.

11 Dist. LEXIS 83045, at *11 (W.D. Tex. Aug. 29, 2008); Save Our Heritage Org. v.

12 Gonzales, 533 F. Supp. 2d 58, 63 (D.D.C. 2008). When courts cannot identify a common

13 statutory policy goal, and the policy some did point to was incorrect, the statutory scheme

14 cannot survive Mistretta scrutiny.

15

Nor can section 102 satisfy the third element of Mistretta: discernable boundaries

16 of delegated authority. 488 U.S. at 372-73. The Government’s proffered interpretation of

17 the statute, and the waiver provision in particular, provides no substantive boundaries as

18 to which laws should be waived under what conditions or when. Arguably, section 102(c)

19 by its terms established the boundaries of the waiver authority as those laws the Secretary

20 “determines necessary to ensure expeditious construction of the barriers and roads under

21 this section.” But the waivers here effectively read out any limiting force to this language.

22 Such a reading would provide “virtually unfettered” discretion to the Executive in this

23 way would undermine the separation of power principle accurately described in Panama

24 Refining Co. v. Ryan, 293 U.S. 388, 416 (1935) (“Congress left the matter to the

25 President without standard or rule, to be dealt with as he pleased.”)

26

The earlier district courts also tried to establish the boundaries set out in section

27 102, per Mistretta’s second prong, but there they could not agree either. The Sierra Club

28 court found the boundary to be the “waiver of laws and regulations which the DHS

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1 Secretary determines impede completion of this particular 14-mile California border

2 Triple Fence authorized by IIRIRA.” 2005 U.S. Dist. LEXIS 44244, at *20-21 (emphasis

3 in original) (citing the Secure Fence Act of 2006, Pub. L. No. 109-367, § 3). Contrast that

4 with Defenders of Wildlife which held the boundary to be “Congress’s requirement that

5 the Secretary may waive only those laws that he determines necessary to ensure

6 expeditious construction.” 527 F. Supp. 2d at 127. It seems the Sierra Club court aimed

7 to establish an actual physical boundary, which has since expired; yet, both decisions are

8 circularly rooted in the construction of the authorization itself, and provide no intelligible

9 boundaries concerning which laws the DHS Secretary may waive under what

10 circumstances. Emphatically, the “expeditious construction of barriers and roads” cannot

11 serve as the Congressional boundary which defines and guides DHS’s act of “expeditious

12 construction of barriers and roads.”

13

Also in some of the earlier cases, the plaintiffs asked the district courts to

14 invalidate section 102 based on the scope of the waiver authority, i.e., the sheer number

15 of laws that could be waived, rather than assessing whether the policies and boundaries

16 Congress articulated in section 102 were clearly delineated as an intelligible principle

17 under Mistretta. Cty. of El Paso, 2008 U.S. Dist. LEXIS 83045, at *9–13; Sierra Club,

18 2005 U.S. Dist. LEXIS 44244, at *17-19; Defenders of Wildlife, 527 F. Supp. 2d at 128-

19 29. Plaintiffs here do not challenge section 102 on that ground, so that aspects of the

20 holdings are irrelevant to the instant case.

21

Next, Defendants, like the district courts cited herein, hope to show a successfully

22 bounded scope of discretion for any statute that included the word “necessary.” Doc. #18-

23 1 at 35. For example, compare the waiver authority in IIRIRA, “necessary to ensure

24 expeditious construction of barriers and roads” to the Controlled Substances Act’s

25 “necessary to avoid an imminent hazard to the public safety.” Touby v. United States, 500

26 U.S. 160, 163 citing 21 U.S.C. § 811(h). The similarities of the two legislative

27 approaches cease with the use of the word “necessary,” however. In Touby, the Court

28 upheld an amendment to the Controlled Substance Act because Congress had made clear

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1 it was allowing the Attorney General to temporarily schedule a controlled substance, for a

2 limited time to combat an emerging problem with illegal designer drugs. 500 U.S. at 163

3 (emphasis added). Still, even under the temporary authority, the Attorney General was

4 required to consider three of the eight codified factors for permanent scheduling. Id. And,

5 based on the limited procedural requirements, Congress only allowed the Drug

6 Enforcement Agency’s temporary scheduling order to be valid for one year, during which

7 time the agency could initiate a permanent scheduling order in full compliance with the

8 Controlled Substances Act and the Administrative Procedures Act. Id. at 164.

9

In contrast, the only substantive limit to the waiver power in section 102(c) is the

10 number of laws the Secretary decides might be standing in his or her way. Even

11 Defendants’ brief can do no better than asserting “the waiver authority is limited to

12 construction along the border for which a necessary determination has been made. Doc.

13 #18-1 at 35:4-16. Defendants want this Court to find that the occurrence of the word

14 “necessary” serves as a sufficient boundary for purposes of Constitutional separation of

15 powers. Under the delegation doctrine’s well-settled principles, this cannot be.

16

Finally, Defendants and earlier district courts emphasized the fact that this

17 delegation of authority concerned issues of border control and national security. Doc.

18 #18-1 at 35-36; see also, e.g., Sierra Club, 2005 U.S. Dist. LEXIS 44244, at *22. The

19 Sierra Club decision distinguished the IIRIRA waivers from other Supreme Court

20 precedent on grounds that the Executive Branch is afforded immense deference on

21 matters of foreign affairs. Id. at *25 (citing Panama Refining, supra, and A.L.A. Schechter

22 Poultry Corp. v. United States, 295 U.S. 495 (1935). Significantly, however, the Supreme

23 Court recently limited the deference afforded to the President in matters of foreign

24 relations. Zivotofsky v. Kerry, 135 S.Ct. 2076, 2089-90 (2015).

25

Zivotofsky concerned the President’s power to recognize foreign states and their

26 borders and capitals. While the Court found that power plenary and independent from

27 Congressional interference, it also squarely addressed years of unclear precedent

28 (particularly United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936))

MEM. IN SUPP. OF SUMM. J.

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Case 3:17-cv-01215-GPC-WVG Document 29-1 Filed 11/22/17 PageID.677 Page 33 of 38

1 regarding the President’s general foreign affairs authority. Zivotofsky, 135 S.Ct. at 2084-

2 90. The Supreme Court expressly “decline[d] to acknowledge that unbounded power”

3 and ruled that prior precedent did not hold that “the President is free from Congress’

4 lawmaking power in the field of international relations.” Id. at 2089–90. Instead,

5 “whether the realm is foreign or domestic, it is still the Legislative Branch, not the

6 Executive Branch, that makes the law,” and “[t]he Executive is not free from the ordinary

7 controls and checks of Congress merely because foreign affairs are at issue.” Id. at 2090.

8

Other courts have followed this approach, explicitly questioning unrestrained

9 deferential treatment earlier cases presumed in matters of foreign affairs: “When

10 confronting a statutory question touching on subjects of national security and foreign

11 affairs, a court does not adequately discharge its duty by pointing to the broad authority

12 of the President and Congress and vacating the field without considered analysis.” Ctr.

13 for Biological Diversity v. Mattis, 868 F.3d 803, 821-29 (9th Cir. 2017) (applying federal

14 statutes to construction of a military base overseas); Tinian Women Ass’n v. U.S. Dep’t of

15 the Navy, No. 16-cv-00022, 2017 U.S. Dist. LEXIS 170080, at *31-48 (D.N. Mar. I. Oct.

16 13, 2017) (applying federal statutes to relocation of marines among overseas military

17 bases); Conservation Council for Haw. v. Nat’l Marine Fisheries Serv., 97 F. Supp. 3d

18 1210, 1220-38 (D. Haw. 2015) (applying federal statutes to Naval sonar testing offshore).

19 This Court should afford no weight to this aspect of Defendants’ arguments and the prior

20 district court cases, because the cited precedent has been sharply curtailed.

21

To conclude, illustrative of what can happen when Congress fails to provide

22 adequate policy guidance to Executive agencies is the two DHS waivers at issue in this

23 case. With little more to go on than “install additional physical barriers and roads” in

24 “areas of high illegal entry into the United States,” the Government hopes to greatly

25 exceed that directive by waiving legal oversight for replacement and improvement

26 projects, prototypes of barriers, along with open-ended “upkeep” and “supporting”

27 projects. Defendants’ proposed work, which would be exempt from federal law, has

28 unlawfully strayed from Congress’s scant directive of “expeditious construction of

MEM. IN SUPP. OF SUMM. J.

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1 barriers and roads.” (emphasis added.) Through three amendments over twelve years, the

2 section 102 waiver authority has always pertained to the construction of “additional”

3 fencing and physical barriers. IIRIRA has never contemplated replacement work or

4 construction of prototypes DHS now proposes. Nor is there any showing this work would

5 be undertaken in areas of high illegal entry. Pls.’ Stmt. ¶¶ 13-20. When Congress fails to

6 provide clear policy goals and defined boundaries of its intended delegated authority, i.e.,

7 no overarching intelligible principle, agency overreach in inevitable. Granting this motion

8 would stop such unlawful overreach.

9 IV. THE WAIVER AUTHORITY—IF DEEMED TO AUTHORIZE THE PROJECTS AT

10

ISSUE—VIOLATES THE PRESENTMENT CLAUSE BY ALLOWING THE SECRETARY TO ENGAGING IN LEGISLATIVE REPEALS.

11

Subection 102(c)(2)’s waiver provision also runs afoul of the Presentment Clause

12 because it effectively grants a broad power of repeal to the Secretary. See Clinton v. City

13 of New York, 524 U.S. 417, 438 (1998) (holding line-item veto power violated the

14 presentment clause because “[i]n both legal and practical effect, the President has

15 amended two Acts of Congress by repealing a portion of each,” just as the Secretary has

16 done here with regard to dozens of Acts of Congress). The Coalition Plaintiffs’ adopt and

17 incorporate the arguments made on this point by the State of California and Center for

18 Biological Diversity without burdening the Court with unnecessary repetition.

19 V. THE JURISDICTIONAL STRIPPING PROVISION IS UNCONSTITUTIONAL UNDER

20

SEPARATION OF POWERS AND FEDERALISM GROUNDS.

21

A. Without inherent ultra vires jurisdiction, section 102(c)(2) would run

22

afoul of fundamental separation of powers protections.

23

The Government has taken the position in this case that “all non-constitutional

24 claims are barred” under section 102(c)(2)’s jurisdictional stripping provision. Doc. #18-

25 1 at 12; see also id. at 13 (“The only avenue for challenging agency action here is a

26 constitutional claim.”). While this view is wrong because this Court retains its inherent

27 ultra vires jurisdiction, see discussion supra § 2, the Government’s interpretation would

28

MEM. IN SUPP. OF SUMM. J.

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1 render section 102(c)(2) unconstitutional.7 Indeed, the ultra vires cases rest on a

2 recognition of the fundamental constitutional problem that would otherwise arise if all

3 judicial review were eliminated to challenge actions that exceed Congressional authority.

4

B. Congress lacks the power to eliminate the concurrent jurisdiction of

5

state courts unless it vests that power in an inferior federal court.

6

Section 102 is not just remarkable in the unbridled (and impermissible) delegation

7 of authority granted to the Secretary to waive vital federal (as well as state and local)

8 laws, it is also remarkable with regard to the hurdles its drafters inserted in an attempt to

9 prevent judicial review of such waivers. While Congress is empowered to establish or

10 eliminate “inferior [federal] Courts” under Article III, § 1, that is not what subsection

11 102(c)(2) seeks to accomplish. Rather, this provision seeks to unwind the Madisonian

12 Compromise that forms the basis for the concurrent judicial power of state and federal

13 courts that provides a bedrock to the Constitution. “This so-called Madisonian

14 Compromise bridged the divide ‘between those who thought that the establishment of

15 lower federal courts should be constitutionally mandatory and those who thought there

16 should be no federal courts at all except for a Supreme Court with, inter alia, appellate

17 jurisdiction to review state court judgments.’” Haywood v. Drown, 556 U.S. 729, 745-46

18 (2009) (Thomas, J., dissenting) (quotation omitted). “The assumption that state courts

19 would continue to exercise concurrent jurisdiction over federal claims was essential to

20 this compromise.” Id. (citation omitted).

21

This fundamental problem with section 102(c)(2) was known to Congress. A legal

22 analysis of the jurisdictional stripping provision recognized that the wresting of

23 concurrent jurisdiction from the state courts was a novel—and potentially fatal—aspect

24 of the law. See 151 Cong. Rec. H536-03 at H557 (Feb. 10, 2005) (recognizing that “an

25 7 Conversely, if this Court correctly determines the waivers are void under its ultra vires
26 jurisdiction, then there is no need to reach these constitutional issues. See, e.g.,
27 Valenzuela Gallardo v. Lynch, 818 F.3d 808, 816-17 (9th Cir. 2016) (discussing the constitutional avoidance doctrine).
28

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1 argument can be made that Congress does not possess the authority to regulate the

2 jurisdiction of state courts directly,” as state courts are “independent and autonomous

3 from the federal court system” and broadly vested with concurrent jurisdiction).

4

Put simply, Congress has the authority to vest exclusive jurisdiction in a federal

5 court (thereby removing concurrent judicial power from the state courts), and the power

6 to remove judicial power from the federal courts (thereby leaving that judicial power

7 solely to the state courts). But Congress does not have the authority to remove the judicial

8 power from both the state and federal courts by vesting “exclusive jurisdiction” over

9 issues into a federal court only then to also remove that judicial power from the very

10 federal court it just vested with that power. Cf. Healy v. Ratta, 292 U.S. 263, 270 (1934).

11 Yet that is precisely what section 102(c)(2) impermissibly seeks to accomplish, which

12 renders it unconstitutional.

13

C. Subsection 102(c)(2) violates the Coalition Plaintiffs’ due process rights

14

and impairs their First Amendment right to petition the government.

15

Subsection 102(c)(2) also unconstitutionally deprives the Coalition Plaintiffs of

16 their due process rights and impairs their First Amendment right to petition the

17 government. In striking down a legal funding statute that restricted the ability of

18 government-provided attorneys to raise certain arguments, the Supreme Court has

19 recognized that “[t]he restriction imposed by the statute here threatens severe impairment

20 of the judicial function,” by removing arguments regarding “questions of statutory

21 validity and constitutional authority,” which created “[a] scheme so inconsistent with

22 accepted separation-of-powers principles” that it could not withstand scrutiny under the

23 First Amendment’s freedom of speech. Legal Services Corp. v. Velazquez, 531 U.S. 533,

24 546 (2001). Importantly, the Court also recognized Congress’s intent was “designed to

25 insulate the Government’s interpretation of the Constitution from judicial challenge. The

26 Constitution does not permit the Government to confine litigants and their attorneys in

27 this manner.” Id. at 548-49. Similarly, the Coalition Plaintiffs’ property and liberty

28 interests in ensuring environmental laws and interests are protected cannot be removed

MEM. IN SUPP. OF SUMM. J.

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Case 3:17-cv-01215-GPC-WVG Document 29-1 Filed 11/22/17 PageID.681 Page 37 of 38

1 without fair procedures, and, under the Government’s interpretation, section 102(c)(2)

2 removes any procedure that would protect those interest from arbitrary and capricious

3 conduct by the Secretary. Wilkinson v. Austin, 545 U.S. 209, 221 (2005).

4

CONCLUSION

5

In sum, for all the foregoing reasons and those contained in the briefs filed by the

6 State of California and Center for Biological Diversity, Defendants’ conduct here is

7 unauthorized, unconstitutional, and void, and this Court is well within its judicial

8 authority to declare precisely that and invalidate the waivers at issue here by granting the

9 Coalition Plaintiffs summary judgment.

10

11

12 DATED: November 22, 2017 13 14 15 16 17 18

Respectfully submitted,
s/ Gloria D. Smith
Gloria D. Smith (CA No. 200824) SIERRA CLUB 2101 Webster Street, Suite 1300 Oakland, CA 94612 Telephone: (415) 977-5532 gloria.smith@sierraclub.org

19

Attorney for Plaintiff Sierra Club

20

Brett M. Paben (FL No. 0416045)

21

DEFENDERS OF WILDLIFE

22

535 16th Street

Denver, CO 80202

23

Telephone: (720) 943-0457

24

bpaben@defenders.org

Pro hac vice 25

26

Attorney for Plaintiff Defenders of Wildlife

27

Anthony T. Eliseuson (IL No. 6277472)

28

ANIMAL LEGAL DEFENSE FUND

MEM. IN SUPP. OF SUMM. J.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MEM. IN SUPP. OF SUMM. J.

1755 W. Roscoe Street, Unit 3 Chicago, Illinois 60657 Telephone: (707) 795-2533 aeliseuson@aldf.org Pro hac vice
Sarah K. Hanneken (OR No. 165104) ANIMAL LEGAL DEFENSE FUND 919 SW Taylor Street, #400 Portland, OR 97205 Telephone: (707) 795-2533 shanneken@aldf.org Pro hac vice
Attorneys for Plaintiff Animal Legal Defense Fund

- 31 -

17cv01215

 
 Case 3:17-cv-01215-GPC-WVG Document 30-2 Filed 11/22/17 PageID.726 Page 1 of 51

1 XAVIER BECERRA Attorney General of California
2 ROBERT W. BYRNE Senior Assistant Attorney General
3 TIMOTHY R. PATTERSON (SBN 72209) MICHAEL P. CAYABAN (SBN 179252)
4 DAVID G. ALDERSON (SBN 231597) Supervising Deputy Attorneys General
5 JOI-IN APPELBAUM (SBN 149643) NOAH GOLDEN-KRASNER (SBN 217556)
6 JANELLE M. SMITH (SBN 23 1801) AMIE MEDLEY (SBN 266586)
7 BAINE P. KERR (SBN 265894) JULIA FORGIE (SBN 304701)
8. JESSICA BARCLAY STROBEL (SBN 280361) Deputy Attorneys General
9 600 West Broadway, Suite 1800 San Diego, California 92101
10 Telephone: (619) 738-9313 Fax: (619) 645-1271
11 E-mail: Mike.Cayaban@doj.ca.gov Attorneys for the People ofthe State of
12 California, by and through Xavier Becerra, Attorney General, and the California Coastal
13 Commission

14

IN THE UNITED STATES DISTRICT COURT

15

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

16

17 18

IN RE: BORDER INFRASTRUCTURE ENVIRONMENTAL LITIGATION,

Case No. 17cv1215-GPC(WVG) Consolidated with Case No. 17-cv-01873-GPC-WVG

Case No. 17-cv-01911-GPC-WVG

19

MEMORANDUM IN SUPPORT OF

20

MOTION FOR SUMMARY

.

JUDGMENT BY PLAINTIFFS

21

PEOPLE OF THE STATE OF

CALIFORNIA AND THE

22

CALIFORNIA COASTAL

COMMISSION

23

Date:

February 9, 2018

24

Time:

1:30 p.m.

Courtroom: 2D

25

Judge:

The Honorable Gonzalo P.

Curiel

26

Trial Date:

None Set

27

Action Filed: September 20, 20

28

California Pis.' Mem. In Supp. of Mot. For Smnm. J. (l 7cvl215-GPC(WVG))

Case 3:17-cv-01215-GPC-WVG Document 30-2 Filed 11/22/17 PageID.727 Page 2 of 51

1

TABLE OF CONTENTS

2 Page
3 IN"TRODUCTION ..................................................................................................... 1

4 FACTUAL BACI(GROUND.......:............................................................................ 3

A. Illegal Entries Plummeted Long Ago at the Southwest

5

Boraer ......................................................................................... 4

6

B. Personnel and Infrastructure Have Ballooned in the San Diego and El Centro Sectors ...................................................... 4

7

C. T~e Site:s (or the Border Wall Projects Are No Longer

High Pr1or1ty ............................................................................... 5

8

1. The San Diego Sector and the San Diego Waiver ........... 6

9

2. The El Centro Sector and the Calexico Waiver ............... 8

10

LEGISLATIVE HISTORY OF SECTION 102 AND DHS'S USE OF WAIVERS BEFORE DECEMBER 31, 2008 ................................................ 8

11 ruRISDICTION OF THIS DISTRICT COURT .................................................... 12

12 CALIFORNIA HAS ARTICLE III STANDIN"G.................................................... 13

ARGUMENT ........................................................................................................... 14

13

I.

Standard of Review on Summary Judgment ..................................... 14

14

II. It is Undisputed That Defendants Violated NEPA, the CZMA

and the APA (First and Second Claims) ............................................ 14

15 16

III. ~~Gt~t~iI~)~~!.~.~. ~??.~~:.~.~.~~~~.~.~~~.~.~~~~~.~~~~.~~~!.~.~:.~........... 16

A. Section l 02 Is Inapplicable Because the San Diego and

17

Calexico Projects Are Not Located in "Areas of High

Illegal Entry ' ............................................................................ 16

18

B. Section 102 Permits Only the Installation of"Additional"

19

Barriers and Roads, Not the Replacement of Existing Fences ....................................................................................... 18

20

C. Defendants Exceeded Their Statutory Authority by

Constructing Fencing in Areas Where the Barners Would

21

Not Be "Most Practical or Effective" ....................................... 20

22

D. Because Defendants Lack Authority to Build the Border Wall Projects, the 2017 Waivers Are Invalid ........................... 21

23

IV. The 2017 Waivers Are Invalid Because the Waiver Authority

Expired On December 31, 2008 (Fourth Claiin) ............................... 21

24

V. Defendants Exceeded Their Statutory Authority in Issuing the

25

2017 Waivers By Making No Findings (Fifth Claim) ...................... 23

VI. The 2017 Waivers Interfere with California's Equal

26

Sovereignty and Police Powers In Violation ofthe Tenth

Amendment's Federalism Principles (Eleventh Claim) .................... 24

27

28

California Pis.' Mem. In Supp. of Mot. For Summ. J. (17cvl215-GPC(WVG))

Case 3:17-cv-01215-GPC-WVG Document 30-2 Filed 11/22/17 PageID.728 Page 3 of 51

1

TABLE OF CONTENTS

2

(continued)

Page

3

VII. Section 102(c)'s Procedural Hurdles and the Vague 2017

Waivers Violate California's Article III and Due Process Rights

4

(Sixth Claiin)...................................................................................... 28

5

VIII. The 2017 Waivers Violate the Separation of Powers Doctrine (Seventh Claim) .................................................................. 30

6

IX. Section 102(c) and the 2017 Waivers Violate the Non-

Delegation Doctrine (Eighth Claim).................................................. 32

7

A. The Section 102(c) Waiver Provision Lacks a Sufficient

8

Intelligible Principle ................................................................. 33

B. The L.ack of Judicial Review Violates the Non-Delegation

9

Doctrine .................................................................................... 34

10

X. Section 102(c) and the 2017 Waivers Violate Article I, Section 3, of the Umted States Constitution (Ninth Claim) ........................... 35

11

XI. Section 102(c) and the 2017 Waivers Violate the Presentment

Clause (Art. I, Section 7) (Tenth Claim) ........................................... 37

12 CONCLUSION........................................................................................................ 40

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
11
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1

TABLE OF AUTHORITIES

2

3 CASES

4 A.L.A. Schechter Poultry Corp. v. United States

5

295 U.S. 495 (1935) ................................................................................ 32, 34, 35

6 Am. Power & Light Co. v. SEC

7

329 U.S. 90, 106 (1946) ...................................................................................... 34

8 Amalgamated Meat Cutters and Butcher Workmen v. Connally 337 F.Supp. 737 (D.D.C. 1971) .................................................................... 33, 34
9

10 BE & K Const. Co. v. NLRB 536 U.S. 516 (2002) ............................................................................................ 30
11

12

Berger v. United States 295 U.S. 78 (1935) .............................................................................................. 36

13

Bond v. United States

14

134 S. Ct. 2077 (2014) ........................................................................................ 27

15 Bowsher v. Synar

16

478 U.S. 714 (1986) ............................................................................................ 31

17 Buckley v. Valeo

18

424 U.S. 1 (1976) ................................................................................................ 31

19 California v. Norton

20

311 F.3d 1162 (9th Cir. 2002) ............................................................................. 15

21 Celotex Corp. v. Catrett 477 U.S. 317 (1986) ............................................................................................ 14
22

23 City ofBoerne v. Flores 521 U.S. 507 (1997) ...................................................................................... 25, 27

24

Clinton v. New York

25

524 U.S. 417 (1988) .......................................................................... 31, 37, 38, 39

26 Commodity Futures Trading Comm. v. Schor

27

478 U.S. 833 (1986) ............................................................................................ 30

28
Ill
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1

TABLE OF AUTHORITIES

2

(continued)

3 County ofEl Paso v. Chertojf

4

No. EP-08-CA-196-FM, 2008 WL 4372693 (W.D. Tex. 2008) ......................... 33

. 5 Defenders of Wildlife v. Chertoff 527 F. Supp. 2d 119 (D.D.C. 2007) ........................................................ 33, 34, 39
6

7 Dennis v. Sparks 449 U.S. 24 (1980) ........................................................................................ 35, 36

8

Dickson v. Sec y. ofDef

9

68 F.3d 1396 (D.C. Cir. 1995) ............................................................................ 24

10

Duncan v. Walker

11

533 U.S. 167 (2001) ............................................................................................ 23

12 FCC v. Fox Television Stations, Inc.

13

567 U.S. 239 (2012) ............................................................................................ 28

14 Field v. Clark

15

143 U.S. 649 (1892) .......................................................................... 31, 32, 37, 38

16 Flores-Miramontes v. INS 212 F.3d 1133 (9th Cir. 2000) ....................................................................... 12, 27
17

18 Friends ofthe Earth, Inc. v. Laidlaw Envtl. Servs., Inc. 528 U.S. 167 (2000) ............................................:............................................... 13
19

20

Gonzales v. Oregon 546 U.S. 243 (2006) ....................................................................................... 23, 27

21

Ex Parte Grossman

22

267 U.S. 87 (1925) .............................................................................................. 36

23 Gutierrez v. Holder

24

662F.3d 1083 (9thCir.2011) ............................................................................. 12

25 Hartford Cas. Ins. Co. v. FDIC

26

21 F.3d 696 (5th Cir. 1994) ................................................................................. 30

27 Humphrey v. Baker

28

848 F.2d 211 (D.D.C. 1988) ................................................................................ 35

lV

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1

TABLE OF AUTHORITIES

2

( continued)

3 In re Workers' Compensation Refund

4

46 F.3d 813 (8th Cir. 1995) ................................................................................. 30

5 INS v. Chadha 462 U.S. 919 (1983) ...................................................................................... 31, 37
6

7 J. W Hampton, Jr. & Co. v. United States 276 U.S. 394 (1928) ...................................................................................... 31, 32
8

La. Pub. Serv. Comm 'n v. FCC

9

476 U.S. 355 (1986) ............................................................................................ 12

10 Leedom v. Kyne

11

358 U.S. 184 (1958) ............................................................................................ 13

12 Loving v. United States

13

517 U.S. 748 (1996) ......................._..................................................................... 32

14 Marbury v. Madison

15

5 U.S. 137 (1803) ................................................................................................ 36

16 Massachusetts v. EPA

17

549 U.S. 497 (2007) ............................................................................................ 13

18 McNeil! v. United States 563 U.S. 816 (2011) ............................................................................................ 19
19

20 Mistretta v. United States 488 U.S. 361 (1989) ...................................................................................... 30, 31

21

0 'Shea v. Littleton

22

414 U.S. 488 (1974) ............................................................................................ 35

23 Organized Village ofKake v. United States Dep 't ofAgric.

24

795 F.3d 956 (9th Cir. 2015) ............................................................................... 23

25 Pac. Mar. Ass 'n v. Nat 'l Labor Relations Bd.

26

827 F.3d 1203 (9th Cir. 2016) ............................................................................. 13

27 Pazcoguin v. Radcliffe

28

292 F.3d 1209 (9th Cir. 2002) ............................................................................. 12

V

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1

TABLE OF AUTHORITIES

2

(continued)

3 Robertson v. Methow Valley Citizens Council

4

490 U.S. 332 (1989) ....................................................................................... 14, 15

5 Save Our Heritage Organization v. Gonzalez 533 F. Supp. 2d 58 (D.D.C. 2008) ................................................................ 33, 39
6

7 Setser v. United States 566 U.S. 231 (2012) ............................................................................................ 21
8

Shelby Cty., Ala. v. Holder

9

133 S. Ct. 2612 (2013) ................................................................................passim

10

Sierra Club v. Ashcroft

11

No. 04CV0272-LAB (JMA) (S.D. Cal. 2005) .................................................... 33

12 Sierra Forest Legacy v. Sherman

13

646 F.3d 1161 (9th Cir. 2011) ............................................................................. 13

14 Stone v. INS

15

514 U.S. 386 (1995) ............................................................................................ 21

16 Touby v. United States

17

500 U.S. 160 (1991) ...................................................................................... 35, 37

18 US. v. Lee 106 U.S. 196 (1882) ............................................................................................ 36
19

20 United States v. Nixon 418 U.S. 683 (1974) ............................................................................................ 36

21

Whitman v. Am. Trucking Assocs.

22

531 U.S. 457 (2001) ............................................................................................ 33

23 Wilson v. Iseminger

24

185 U.S. 55 (1902) ............................................................................................... 30

25 Yakus v. United States

26

321 U.S. 414 (1944) ............................................................................................ 33

27 Youngstown Sheet & Tube Co. v. Sawyer

28

343 U.S. 579 (1952) ............................................................................................ 31

vi

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1

TABLE OF AUTHORITIES

2

(continued)

3 STATUTES

4 5U.S.C.

5

§ 551 et seq. ........................................................................................................... 1

§ 702 .................................................................................................................... 15

6

§ 704 .................................................................................................................... 15

7

§ 706 .................................................................................................................... 15

8

§ 706( 1)................. ;.................... """ "" ................... "" ................................... 15, 16 § 706(2)(A) .................................................................................................... 15, 16

9

§ 706(2)(D) .................................................................................................... 15, 16

10 8U.S.C.

11

§ 1103 (a) .............................................................................................................. 16

§ 1103(a) n..................................................................................................... 16, 19

12

§ l 103(a) n........................................................................................................... 23

13

§ 1103(b)( 1)(A) n .......................................................................................... 20, 23

§ l 103(b)(l) note ........................................................................................... 19, 20

14

§. 1103 (c)(l) note .................................................................................... 12, 21, 23

15

§ 1103 n. .......................................................................................................passim

16 10 u.s.c.

17

§ 433 .................................................................................................................... 39

18 16 u.s.c.

§ 1451 et seq. ......................................................................................................... 1

19

§ 1452 .................................................................................................................. 15

20

§ 1456(c)( 1)(A) .................................................................................................... 15

21 22 u.s.c.

22

§ 7207(a)(3) ......................................................................................................... 39

23 28 u.s.c.
§ 1331 .................................................................................................................. 12 24
25 33 u.s.c.
§ 1319(C) .............................................................................................................. 36·

26

42 U.S.C. § 1983 ....................................................................................................... 36 27

28
Vil
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1

TABLE OF AUTHORITIES

2

(continued)

Page

3 § 4321 et seq......................................................................................................passim

4

§ 4332(2)(C) .................................................................................................. 14, 15

§ 6928 .................................................................................................................. 36 5

Cal. Pub. Res. Code

6

§ 3000 8 ................................................... :............................................................ 15

7

§ 30210-13 ........................................................................................................... 15

§ 30220-21 ........................................................................................................... 15

8

§ 30223 ................................................................................................................ 15

9

§ 3023 3 ................................................................................................................ 15

§ 30236 ................................................................................................................ 15

10

§ 30240 ................................................................................................................ 15

11

§ 30244 ................................................................................................................ 15

12

§ 30251 ................................................................................................................ 15 § 30330 ................................................................................................................ 15

13

Illegal Immigration Reform and Immigrant Responsibility Act of 1996

14

Pub. L. 104-208, Div. C, Title I,§ 102(a) to (c), 110 Stat. 3009-554

15

(Sept. 30, 1996) ................................................................................. 4, 5, 9, 19, 32

16 Real ID Act of 2005 ...................................................................................................... .

17

Pub. L. 109-113, div. B, tit. I§ 102(c)(l), 119 Stat. 231 (May 11, 2005)....................................................................................................................... 9

18

Secure Fence Act of 2006

19

Pub. L. 109-367, § 3, 120 Stat. 2638 (Oct. 26, 2006) ..................................... 9, 19

20 Homeland Security Appropriations Act, 2008

21

Pub. L. 110-161, div. E, tit. V § 564, 121 Stat. 2090 (Dec. 26,

22

2007) ........................................................................................................... 9, 10, 22

Pub.L. 110-161, div E, tit. V, § 564, 121 Stat. 2090 (Dec. 26,

23

2007) .................................................................................................................... 10

24

Pub. L. 110-161, div. E, tit. V, § 564(a), 121 Stat. 2090 (Dec. 26,

2007) .................................................................................................................... 19

25

26

27

28
Vlll
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1

TABLE OF AUTHORITIES

2

(continued)

3 CONSTITUTIONAL PROVISIONS

4 United States Constitution .......................................................................... l, 2, 12, 24

5

article I ........................................................................................................... 25, 31

article I, section 1........................................................................................... 31, 32

6

article I, section 2................................................................................................. 36

7

article I, section 3................................................................................................. 35

article I, section 4, cl. 1........................................................................................ 27

8

article I, section 7, cl. 2......................................................................................... 37

9

article II, section 3 ............................................................................................... 31

article III ............................................................................................ 13, 14, 28, 30

10

First A1nend1nent ................................................................................................. 30

11

Tenth Amendment ............................................................................... 2, 24, 26, 27

12

Fifteenth Amend1nent .......................................................................................... 25

13 COURT RULES

14 Federal Rules of Civil Procedure

15

Rule 56(c) ................. ;.......................................................................................... 14

16 OTHER AUTHORITIES

17 15 C.F.R.

18

§ 930.32 ............................................................................................................... 15

§ 930.39 ......................................................................................... ;..................... 15

19

§ 9320.36 ............................................................................................................. 15

20 40 C.F.R.

21

§ 1501.2 ............................................................................................................... 15

§ 1502.2(g)........................................................................................................... 15

22

§ 1502.5 ................................................... ,........................................................... 15

23

§ 1508.23 ............................................................................................................. 15

§ 1508.25 ............................................................................................................. 15 24

25 70 Fed. Reg. 55,622-02 (Sept. 22, 2005) .................................................................. l 1

26 72 Fed. Reg. 2,535-01 (Jan. 19, 2007) ..................................................................... 11

27 72 Fed. Reg.60,870-01 (Oct. 26, 2007) ............. .'..................................................... 11

28
ix California Pis.' Mem. In Supp. of Mot. For Summ. J. (17cvl215-GPC(WVG))

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1

TABLE OF AUTHORITIES

2

(continued)

Page

3 73 Fed. Reg. 19,077-01 (Apr. 8, 2008) ................................................................... 11

4 73 Fed. Reg. 19078-01 (Apr. 8, 2008) ..................................................................... 11
5 82 Fed. Reg. 8,793 § 4(a) (Jan. 25, 2017) .................................................................. 3
6
82 Fed. Reg. 35,984-01 (Aug. 2, 2017) ...................................................................... 6 7

8 82 Fed. Reg. 42,829-01 (Sept. 12, 2017) ................................................................... 8

9 Department of Homeland Security, https://www.cbp.gov/border-

security/ al ong-us-borders/border-patro I-sectors/el-centro-sector-

10

california (last visited 10/31/2017)........................................................................ 8

11

Department of Homeland Security, https://www.cbp.gov/border-

12

security/along- us- borders/border-patro I-sectors/san-diego-sector-

13

california (last visited November 10, 2017) .......................................................... 7

14 http://www.c-span.org/video/?312302-1/dhs-sec-napolitano-testifies-

15

immigration-reform (last visited November 22, 2017) ....................................... 22

16 http://www.sandiegouniontribune.com/visuals/photography/sd-p.£.:

trump-border-wall-prototypes-finished-20171025-

17

photogallery.html (last visited November 21, 2017) ........................................... 16

18 https://www.youtube.com/watch?v=OPMt5mxyBQw, Televised

19

Interview with Attorney General Jeff Sessions and then Homeland

20

Security Secretary John Kelly ("Kelly TV Interview"), April, 20 2017, 2: 10-2:27 (last visited Nov. 19, 2017) ....................................................... 6

21

Merriam-Webster Online Dictionary, 2017, http://www.merriam-

22

webster.co1n (Oct. 23, 2017) ............................................................................... 34

23 Webster's Third New International Dictionary, Copyright 2002............................. 20
24

25

26

27

28
X
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1

· INTRODUCTION

2

The Trump administration is building a "big beautiful wall" along the U.S.-

3 Mexico border without conducting any environmental review or complying with

4 any environmental protection laws despite irreparable harm to wildlife, plants, and 5 habitat. Plaintiffs, the People of the State of California and the California Coastal

6 Commission (collectively "California"), have brought this action to require the

7 Trump administration to comply with the United States Constitution and federal

8 and state laws. Defendants 1 have already violated the National Environmental

9 Policy Act2 ("NEPA"), the Coastal Zone Management Act3 ("CZMA") and the
1o Administrative Procedure Act4 ("APA"), but claim to have waived those statutes

11 and other laws designed to provide invaluable information to California and its

12 citizens concerning threats to their environment, health, and natural resources.

13

Defendants contend that NEPA, the CZMA, and numerous other federal and

14 state laws were waived by former and acting DHS Secretaries on August 2, 2017 15 ("San Diego Waiver") and September 12, 2017 ("Calexico Waiver") for the 16 planning and construction of a border wall and related border barrier projects along

17 the southwest border, including significant projects in California ("Border Wall

18 Projects"). These waivers ("2017 Waivers") cite 8 U.S.C. § 1103 note, commonly 19 referred to as Section 102 ("Section 102"), as the source of the Secretary's authority 20 to construct the Border Wall Projects and waive any and all laws related to the

21 them.

22

However, Defendants' reliance on Section 102 to build the Border Wall

23 Projects and waive laws related to that construction is misplaced. Section 102

24

1 Defendants include the United States of America, the U.S. Department of 25 Homeland Security ("DHS"), former DHS Secretary John Kelly in his official

capacity, acting DHS Secretary Elaine Duke in her official capacity, the U.S. 26 Customs and Border Protection ("CBP"), and acting CBP Commissioner Kevin K.

McAlsenan in his official capacity (collectively, ."Defendants").

27

42 U.S.C. § 4321 et seq.

. 3 16 U.S.C. § 1451 et seq.

28

4 5 U.S.C. § 551 et seq.

1

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1 simply does not authorize the fence replacement and prototype projects that are at

2 the heart of the Border Wall Projects in California. Defendants are choosing to

3 ignore the threshold requirements and limitations Congress laid out in that statute.

4 Section 102, for example, limits the Secretary's authority to the installation of

5 "additional" barriers in "areas of high illegal entry" and where the barriers would be

6 "most practical and effective" in deterring illegal entries. The undisputed facts

7 establish that the Border Wall Projects at issue in the 2017 Waivers are not in areas

8 of high illegal entry or located where they would be most practical and effective,

9 despite the Secretary's conclusory statements to the contrary. Defendants are trying

10 to shoehorn these particular projects into a statute that was not drafted for these

11 purposes, simply to take advantage of the statute's waiver provision.

12

Moreover, Defendants are relying on a waiver and expedited construction

13 provision that expired nine years ago. In late 2007, Congress amended Section 102

14 by imposing a deadline for the identification and expedited construction of barriers

15 in priority areas. That deadline expired on December 31, 2008. The amendments

16 reflect that Section 102 was not intended to give the Secretary unilateral authority

17 to waive all laws along a two-thousand-mile border in perpetuity. Thus, Defendants

18 cannot now rely on the expedited construction provision nine years after the

19 deadline to expedite construction in priority areas expired.

20.

Finally, Section 102 and DHS 's application of that provision through the 2017

21 Waivers violate several provisions of the United States Constitution and long-

22 standing constitutional doctrines. By burdening some geographic regions but not

23 others and invading California's traditional police powers, in the absence of

24 evidence justifying the targeted application of the waiver in particular areas of San

25 Diego and Imperial Counties, the 2017 Waivers fly in the face of the federalism

26 principles embodied in the Tenth Amendment. Moreover, the vagueness of the

27 2017 Waivers, combined with Section 102(c)'s unreasonable procedural hurdles,

28 contravene the due process rights of all Californians to petition their government 2
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1 and receive a fair hearing. Section 102 also unconstitutionally effects a wholesale

2 transfer of legislative duties to the executive by empowering the Secretary with

3 unchecked discretion to pick and choose which laws to obey or ignore without any

4 . meaningful guidance on how to exercise that discretion, in violation of the

5 Separation of Powers Doctrine, the Non-Delegation Doctrine, and the Presentment

6 Clause. Finally, in permitting the Secretary to waive all criminal laws, Section 102

7 exceeds constitutional limits on the ability of the Executive Branch to immunize

8 criminal acts.

9

Defendants are exploiting these constitutional deficiencies through the 2017

10 Waivers, which waive a myriad of federal and unidentified state laws, including

11 criminal laws, in order to construct various projects in areas where fencing already

12 exists and the rates of illegal entries are the lowest. Section 102 and the 2017

13 Waivers cannot be used to trample on the rights of the sovereign State of California

14 and the rights of its residents. Plaintiffs are therefore entitled to summary judgment.

15

FACTUAL BACKGROUND

16

On January 25, 2017, President Donald J. Trump issued an Executive Order

17 directing the DHS Secretary to take steps toward planning and constructing a

18 "physical wall along the southern border." (Ex. 7, Exec. Order No. 13767, 82 Fed. 19 Reg. 8,793 § 4(a) (Jan. 25, 2017).)5 President Trump referenced a purported "recent

20 surge in illegal immigration" and mandated that DHS "[p]roduce a comprehensive

21 study of the security of the southern border, to be completed within 180 days of this

22 order, that shall include the current state of southern border security." Id.§§ 1, 4(a),

23 (d). The Secretary never produced the study mandated by the Executive Order.

24 However, DHS has issued reports and statements showing that existing

25 infrastructure, along with staffing and other border technology, has curtailed illegal

26 crossings at the southwest border, which plummeted years ago. These reports also

27 5 Each exhibit referenced in this memorandum is attached to and described in
28 the Declaration of Michael Cayaban, filed herewith in support of Plaintiffs' motion.
3
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1 establish that over the past two decades there have been dramatic reductions in the

2 number of illegal crossings in the particular areas where DHS is now choosing to

3 replace existing fencing and, thus, that DHS' s targeted application of Section 102 's

4 waiver provision in California is unwarranted.

5

A. Illegal Entries Plummeted Long Ago. at the Southwest

Border

6

7

In DHS 'sown words, illegal entries along the southwest border are at their

8 lowest levels "since 2000, and likely since the early 1970s." (Ex. 8, "Efforts by

9 DHS to Estimate Southwest Border Security Between Ports of Entry," Dep't of

10 Homeland Sec., Office of Immigration Statistics, Sept. 2017, pp. 19.) In the

11 September 2017 report supporting that assessment, DHS estimated that the number

12 of successful illegal entries at the southern border has declined by 91 % since 2000.

13 Id. pp. 17-18. DHS's assessment is consistent with data published by CBP, which

14 show that the number of migrants apprehended by CBP while illegally crossing the

15 southwest border has fallen sharply since 2000, and particularly since 2006. (Ex. 2,

16 USBP Total Illegal Alien Apprehensions by Month, 2000-2016.)6 According to

17 DHS, illegal border crossings have declined because "the southwest land border is

18 more difficult to illegally cross today than ever before." (Ex. 8, p. 19.)

19

B. Personnel and Infrastructure Have Ballooned in the

San Diego and El Centro Sectors

20

21

Since Congress passed the Illegal Immigration Reform and Immigrant

22 Responsibility Act of 1996 ("IIRIRA"), the federal government has spent billions

23 of dollars on personnel and other resources along the southwest border, especially

24 in the San Diego and El Centro sectors affected by the Border Wall Projects. (Ex. 3,

25 Congressional Research Service, Border Security: Barriers Along the U.S.

26

6 The CBP and its enforcement arm, the United States Border Patrol

("P~BP"), maintain <la.ta on the number of illegal entrants apprehended crossing

27 w1thm each CBP sector of the southwest border. (Ex. 1, excerpts from Government

Accountability Office Report; February 2017, GA0-17-331, pp. 1, 46-56, Ex. 2.)

28 The southwest border is diviaed into nme sectors. (Ex. 1, pp. 45-46; Ex. 2.)

4
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1 International Border, September 21, 2006, pp. 3-4.) Between 1995 and 2016, the

2 number of border patrol agents assigned to the southwest border nearly quadrupled

3 from 4,388 to 17,026 agents. During that same time, El Centro patrol agent staffing

4 levels increased by nearly 500%. By 2016, nearly 900 more patrol agents were

5 assigned to the San Diego sector than in 1995. (Ex. 4, USBP Border Patrol Agent

6 Staffing by Fiscal Year (as of Oct. 1, 2016), pp. 1-4.)

7

CBP has also installed hundreds of miles of additional barriers along the

8 southwest border pursuant to Congressional mandates, including an amendment to

9 Section 102 requiring expedited construction in priority areas before the end of

10 2008. CBP installed 143 miles of fencing along the southwest border before late

11 2005. By the middle of 2009, CBP had installed an additional 490 miles of fencing.

12 (Ex. 5, U.S. Government Accountability Office, GA0-09-896, Sept. 2009.)

13 Currently, there are 705 miles of fencing along 654 miles of the U.S.-Mexico

14 border. (Ex. 6, USBP, Mileage of Pedestrian and Vehicle Fencing, August 2, 2017.)

15 This includes CBP 's installation of 37 miles of secondary fencing and 14 miles of

16 tertiary fencing, completing the goal of 700 miles as contemplated in Section 102.

17 Id. 18

C. The Sites for the Border Wall Projects Are No Longer High Priority

19

Citing the decline in illegal crossings and adequacy of existing barriers, the

20 federal government and the Secretary have concluded that areas with existing·

21 fencing-such as the San Diego and El Centro sectors-are no longer areas of high

22 illegal entry and that the San Diego and El Centro areas are DHS's lowest priority

23 for replacing existing fencing. In a March 27, 2017, infrastructure planning

24 document relating to the Border Wall Project, CBP divided the southwest border

25 into nine sectors and assessed the infrastructure needs within each sector. (Ex. 9,

26 Dep't of Homeland Security, Building the Wall, Strategy & Way Forward, March

27 27, 2017, p. 15.) Each sector was rated as "Very High," "High," and "Moderate."

28 Id. CBP used its lowest priority rating, "moderate," to describe its infrastructure
5 California Pis.' Mem. In Supp. of Mot. For Summ. J. (l 7cvl215-GPC(WVG))

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1 needs within the San Diego and El Centro sectors affected by the 2017 Waivers. Id.

2 In a televised interview a month later, then Secretary Kelly confirmed this

3 assessment, explaining that existing fencing is "very, very effective" and

4 "remarkably effective in keeping down the amount of illegal movement across" the 5 border. 7 Notably, most of California's 140-mile border with Mexico already has

6 fencing, including the areas covered by the 2017 Waivers. (Ex. 1, pp. 46-50; Ex. 10,

7 U.S. Customs and Border Protection, Border Fencing as of June 2011.) Despite the

8 admitted adequacy of existing barriers and sharp decrease in illegal crossings, DHS

9 is attempting to expedite the replacement of existing fencing in the San Diego and

10 El Centro sectors.

11

1. The San Diego Sector and the San Diego Waiver

12

On August 2, 2017, former DHS Secretary Kelly issued the San Diego Waiver

13 by publishing a Notice of Determination in the Federal Register. (Ex. 11, 82 Fed.

14 Reg. 35,984-01 (Aug. 2, 2017).) The San Diego Waiver purports to waive 37

15 federal laws-including NEPA, the Endangered Species Act ("ESA"), the CZMA,

16 and the APA-as well as "all federal, state, or other laws ... related to" the same

17 "subject matter." Id. The ostensible purpose of the San Diego Waiver is to expedite

18 the construction of infrastructure projects within a 15-mile segment of the border

19 described as the "project area," beginning at the Pacific Ocean and extending

20 eastward. Id.

21

The San Diego Waiver states that DHS will "immediately implement various

22 border infrastructure projects" within the project area, but only identifies two

23 projects expressly: the replacement of the 14-mile primary fence and the

24 construction of prototype barriers. Id. DHS and Trump Administration officials

25 have stated they intend to also begin projects that are not specifically mentioned in

26 7 https://www.youtube.com/watch?v=OPMt5mxyBQw, Televised Interview
27 with Attorney General Jeff Sessions and then Homeland Security Secretary John Kelly ("Kelly TV Interview"), April, 20 2017, 2:10-2:27 (last viewed Nov. 19,
28 2017).
6
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1 the San Diego Waiver, such as replacing the existing 14-mile secondary fence

2 (which was completed less than nine years ago) with a solid wall. (Ex. 9, p. 18.)

3 The various infrastructure projects referenced in the San Diego Waiver, both

4 disclosed and undisclosed, are referenced collectively herein as the San Diego

5 Project.

6

The San Diego sector is located entirely within California and extends 60

7 miles east from the Pacific Ocean along the southwest border. (Ex. 1, pp. 46-48.)

8 The San Diego sector includes several land ports of entry, several inland

9 checkpoints, and hundreds of miles of coastline. 8 The San Diego sector has about

10 46 miles of existing primary fencing along its 60-mile border with Mexico. (Ex. 1,

11 p. 48; Ex. 6, Ex. 10.) Multiple layers of fencing (primary, secondary, and tertiary)

12 span the western-most segment of the border at the site of the San Diego Project.

13 (Ex. 1, p. 48; Exs. 23 and 24, Photographs of the San Diego Triple Fence;
14 Declaration ofM. Cayaban, ,r,r 24-26; Ex. 22, Appendix D.)

15

The number of illegal entries in the San Diego sector has fallen significantly

16 over the last two decades and at a steeper rate than in other sectors. (Ex. 1, pp. 46-

17 47; Ex. 2; Ex. 8, pp. 18-19.)9 CBP's apprehension data indicates there were 483,815

18 in 1996 compared to 31,891 in 2016, a reduction of over 93%. (Ex, 2, pp. 1, 17; Ex.

19 22, pp. 12-15 and appendix G.) San Diego sector apprehensions fell to just 7% of

20 the total number of apprehensions along the entire southwest border between 2013

21 and 2015, far less than sectors in other states. (Ex. 1, pp. 45-46, 48; Ex. 2; Ex. 6, p.

22 19; Ex. 20, p. 19-20.) Additionally, personnel from the Imperial Beach and Chula

23 Vista patrol stations, which have had the lowest rates of illegal entry within the San

24 Diego Sector for several years, patrol the San Diego Project Area. (Ex. 22,

25

26

27

28

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1 Congressional Research Service, Border Security: Barriers Along the U.S.

2 International Border, March 16, 2009, pp. 11-15.)

3

2. The El Centro Sector and the Calexico Waiver

4

On September 12, 2017, acting Secretary Duke issued the Calexico Waiver by

5 publishing a Notice of Determination in the Federal Register. (Ex. 12, 82 Fed. Reg.

6 42,829-01 (Sept. 12, 2017).) The Calexico waiver purports to waive the application 7 of 27 federal laws, and all state laws related to the same subject matter, in order to

8 expedite the construction of infrastructure projects in the El Centro sector. As with

9 the San Diego Waiver, the Calexico Waiver purports to waive NEPA, the CZMA, 10 and the APA. Id. The ostensible purpose of the Calexico Waiver is to expedite the

11 replacement of three miles of existing primary fence near the Calexico port of entry

12 in the El Centro sector, referred to herein as the Calexico Project.

13

CBP's El Centro sector covers areas within Imperial County and Riverside

14 County, California. 10 The sector is comprised of a land border that is 70 miles in

15 length with 59 miles of existing primary fencing along its border with Mexico. Id.

16

Just as in the San Diego sector, there have also been significant declines in the

17 number of undocumented entries in the El Centro sector over the last two decades. 18 The USBP apprehended 238,126 deportable migrants in the El Centro sector in 19 2000 compared to just 19,448 in 2016, a reduction of nearly 92%. (Ex. 2, pp. 1, 17.)

20 Between 2013 and 2015, apprehensions in the El Centro sector represented just 4%

21 of the total number of apprehensions along the entire southwest border. (Ex. 1, p.

22 49.)

23

24

25

26

27

28
8
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1

LEGISLATIVE HISTORY OF SECTION 102 AND DHS'S USE OF

WAIVERS BEFORE DECEMBER 31, 2008

2

3

Before 1996, there was no express statutory authority regarding construction

4 of barriers along the southwest border. That changed when Congress passed the

5 first iteration of Section 102. See IIRIRA, Pub. L. 104-208, div. C., tit. I § 102, 110

6 Stat. 3009, 3009-554 (Sept. 30, 2996). The first iteration of Section 102 authorized

7 the U.S. Attorney General, in consultation with the Commissioner of Immigration

8 and Naturalization, to "take such actions as may be necessary to install additional

9 physical barriers and roads .. in the vicinity of the United States border to deter
1o illegal crossings in areas of high illegal entry into the United States." Id. Section

11 102(a). It also required construction of second and third fences parallel to a 14-mile

12 segment of primary fencing installed a few years earlier along the border near San

13 Diego. That 14-mile segment starts at the Pacific Ocean and extends 14 miles east.

l 4 Id. § l 02(b). Further, the first iteration of Section 102 contained a provision that

15 permitted the Attorney General to waive application of the ESA and NEPA "to the

16 extent the Attorney General determines necessary to ensure expeditious

17 construction of the barriers and roads under this section." Id. § 102(c).

18

The Real ID Act of 2005 amended Section 102 by transferring the waiver

19 authority from the Attorney General to the Secretary of Homeland Security, and

20 expanding the waiver authority to include "all legal requirements such Secretary, in

21 such Secretary's sole discretion, determines necessary to ensure expeditious

22 construction of the barriers and roads under this section." Pub. L. 109-113, div. B,

23 tit. I § 102(c)(1 ), 119 Stat. 231 (May 11, 2005). That version of Section 102 did not

24 specify the laws that Congress authorized the Secretary to waive. It also purported

25 to limit legal challenges concerning any waiver decision to constitutional claims

26 and eliminated appellate court review. Id.

27

The Secure Fence Act of2006 (Pub. L. 109-367) amended Section 102 again

28 by removing the provisions referring specifically to the 14-miles of fencing in San

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1 Diego, and instead directed DHS to construct two layers of reinforced fencing along

2 five separate segments of the border, totaling more than 800 miles. Pub. L. 109-

3 367, §§ 2-3, 120 Stat. 2638 (Oct. 26, 2006).

4

The Department of Homeland Security Appropriations Act, 2008 ("2008

5 Amendment") amended Section 102 a third and final time by removing

6 requirements for doubled-layered fencing in specific locations, and by providing the

7 Secretary with specific direction in "carrying out subsection (a)" of Section 102.

8 Pub. L. 110-161, div E, tit. V, § 564, 121 Stat. 2090 (Dec. 26, 2007). The 2008

9 Amendment directs the Secretary of Homeland Security to construct reinforced

10 fencing along not less than 700 miles along the southern border where it would be

11 "most practical and effective." The 2008 Amendment also amended the statute by

12 compelling the Secretary of Homeland Security to designate "Priority Areas" for

13 370 miles of additional fencing by not later than December 31, 2008, and by

14 obligating the Secretary to expedite the construction of fencing in these "priority

15 areas," requiring the completion of construction by not later than December 31,

16 2008. Id. Thus, Congress imposed a December 31, 2008, deadline for the

17 designation and expedited construction of additional barriers and roads in priority

18 areas under Section 102.

19

There have.been no amendments to Section 102 since the 2008 Amendment

20 was signed into law. Subsections (a) and (b) of Section 102 currently state that:

21

(a) Jn General. -The SecretarY. ofHomel.aµd Security shall

take such actions as may be necessary to mstall addit10nal physical

22

barriers and roads (including the removal of obstacles to detection of

illegal entrants) in the vicimty of the United States border to deter

23

illegal crossings in areas of high illegal entry into the United States.

24

(b) Construction of Fencing and Road Improvements Along the

Border.-

25

( 1) Additional fencing along southwest border.-

26

(A) Reinforced fencing.- In carrying out subsection (a), the

27

Secretary of Homeland Security shall construct reinforced fencing along

not less than 700 miles of the southwest border where fencing would be

28

most practical and effective and provide for the installation of additional

10

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1

physical barriers, roads, lighting, cameras, and sensors to gain

operational control of the southwest border.

2

(B) Priority areas. - In carrying out this section, the Secretary

3

ofHomeland Secunty shall -

4

(i) identify the 370 miles, or other mileage determined

by the Secretary, whose authority to determine other mileage

5

shall expire on December 31, 2008, along the southwest border

where :fencing would be most practical and effective in deterring

6

smugglers ana aliens attempting to gain illegal entry into the

Unitea States; and

7

(ii) not later than December 31, 2008, complete

8

construction of reinforced fencing along the miles identified

under clause (i).

9

10

Subsection (c) of Section 102 further states "[n]otwithstanding any other

11 provision of law, the Secretary of Homeland Security shall have the authority to

12 waive all legal requirements such Secretary, in such Secretary's sole discretion,

13 determines necessary to ensure expeditious construction of the barriers and roads

14 under this section." Subsection (c) is limited to the installation of "additional

15 barriers and roads ... in areas of high illegal entry.'' Id. § 1103 note.

16

During the period of September 2005 through October 2007, former Secretary

17 Chertoff initiated three waivers to expedite the construction of additional fencing in

18 different project areas. (Ex. 13, 70 Fed. Reg. 55,622.:02 (Sept. 22, 2005); Ex. 14, 72

19 Fed. Reg. 2,535-01 (Jan. 19, 2007); Ex. 15, 72 Fed. Reg. 60,870-01 (Oct. 26,

20 2007).) This resulted in the completion of the 14-mile, multi-layered fencing project

21 in San Diego and the completion of additional fencing in two project areas in

22 Arizona. In April 2008, following the 2008 Amendment to Section 102, former

23 Secretary Chertoff initiated two more waivers in an effort to construct the

24 additional fencing before the December 31, 2008 deadline. (Ex. 16, 73 Fed. Reg.

25 19,077-01 (Apr. 8, 2008); Ex·. 17, 73 Fed. Reg. 19078-01 (Apr. 8, 2008).) As

26 justification for the April,2008 waivers, which called for the expedited construction

27 of hundreds of miles of fencing in the four southern border states, former Secretary

28 Chertoff cited Congressional mandates articulated under subsection (b) of Section
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1 102, "including priority miles of fencing that must be completed by December of

2 2008." (Ex. 17.)

3

JURISDICTION OF THIS DISTRICT COURT

4

"The district courts shall have original jurisdiction of all civil actions arising

5 under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331.

6 This Court has subject matter jurisdiction over this action because Plaintiffs' claims

7 arise under the United States Constitution and several federal statutes. Plaintiffs'

8 statutory claims include claims for relief under NEPA, the CZMA, and the APA.

9

In defense of their failure to comply with these and other federal and state

10 laws, Defendants assert that these laws were waived by the DHS Secretary in the

11 2017 Waivers pursuant to Section 102(c). 8 U.S.C. § 1103 note (c)(l). Defendants

12 also contend that this Court is barred from hearing statutory and other non-

13 constitutional challenges to the 2017 Waivers, citing language in 102 (c) that

14 appears to limit the district court's jurisdiction to claims asserting constitutional

15 violations. Id.

16

Defendants' position, however, conflicts with Supreme Court and Ninth

17 Circuit precedent. Federal courts clearly retain jurisdiction to review threshold

18 issues such as whether underlying factual findings would trigger the purported

19 jurisdictional bar. Pazcoguin v. Radcliffe, 292 F.3d 1209, 1212 (9th Cir. 2002);

20 Flores-Miramontes v. INS, 212 F.3d 1133, 1135 (9th Cir. 2000). In other words, the

21 federal courts "have jurisdiction to determine whether jurisdiction exists."

22 . Gutierrez v. Holder, 662 F.3d 1083, 1086 (9th Cir. 2011) (quoting Flores-

23 Miramontes, 212 F.3d at 1135). Here, Plaintiffs assert that Section 102 does not

24 authorize Defendants' proposed projects and thus that the entire st_atute, including

25 the waiver provision, is inapplicable. These claims require this Court to examine

26 these threshold issues before it reaches questions such as whether the 2017 Waivers

27 comply with the Constitution.

28
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1

Federal courts also retain jurisdiction to determine whether a federal agency is

2 acting within the scope of its congressionally delegated authority. La. Pub. Serv.

3 Comm 'n v. FCC, 476 U.S. 355, 374 (1986). Even where Congress has limited

4 courts' jurisdiction to review an agency's actions, federal courts retain jurisdiction

5 where: (1) an agency's action is ultra vires in that it contravenes clear statutory

6 language; and (2) absent district court jurisdiction, the party seeking review would

7 be wholly deprived of "a meaningful and adequate means of vindicating its

8 statutory rights." Pac. Mar. Ass 'n v. Nat 'l Labor Relations Bd., 827 F.3d 1203,

9 1208 (9th Cir. 2016) (quoting Bd. ofGovernors ofFed. Reserve Sys. v. MCorp Fin.,

10 Inc., 502 U.S. 32, 43 (1991)); Leedom v. Kyne, 358 U.S. 184, 188-90 (1958). Here,

11 Plaintiffs assert Defendants are acting outside the scope of their authority granted

12 by Section 102, as defined by clear statutory language, and, the absence of district

13 court jurisdiction will wholly deprive Plaintiffs of adequate means to vindicate their

14 statutory rights.

15

CALIFORNIA HAS ARTICLE III STANDING

16

"[T]o satisfy Article Ill's standing requirements, a plaintiff must show (1) it

17 has suffered an 'injury in fact' that is (a) concrete and particularized and (b) actual

18 or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the

19 challenged action of the defendant; and (3) it is likely, as opposed to merely

20 speculative, that the injury will be redressed by a favorable decision." Friends of

21 the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81 (2000) (citing

22 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). Here, California has

23 met all Article III standing requirements. California will suffer injury to its real

24 property that it owns and manages adjacent to DRS 's Border Wall Projects.

25 California also has concrete and particularized interests in protecting its natural,

26 recreational, agricultural, historical and cultural resources for the use, enjoyment

27 and benefit of California's residents. Massachusetts v. EPA, 549 U.S. 497, 518

28 (2007); Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1178 (9th Cir. 2011). In
13 California Pis.' Mem. In Supp. of Mot. For Summ. J. (17cv1215-GPC(WVG))

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1 addition, the Border Wall Projects have caused injury to California's tourism

2 economy from the "chilling effect" on California tourism from Mexico. Finally, the

3 waivers infringe upon California's procedural and sovereign rights in creating and 4 enforcing its own laws and receiving the benefits afforded to it under NEPA and the

5 CZMA. California therefore has Article III standing to bring this case.

6

ARGUMENT

7 I. STANDARD OF REVIEW ON SUMMARY JUDGMENT

8

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment

9 is proper "if the pleadings, depositions, answers to interrogatories, and admissions

10 on file, together with the affidavits, if any, show that there is no genuine issue as to

11 any material fact and that the moving party is entitled to a judgment as a matter of

12 law." Summary judgment "may, and should, be granted so long as whatever is

13 before the district court demonstrates that the standard for the entry of summary 14 judgment, as set forth in Rule 56(c), is satisfied." Celotex Corp. v. Catrett, 477

15 U.S. 317, 322-323 (1986).

16 · II. IT IS UNDISPUTED THAT DEFENDANTS VIOLATED NEPA, THE CZMA
AND THE APA (FIRST AND SECOND CLAIMS)
17

18

The area where Defendants are constructing the Border Wall Projects is rich in

19 biodiversity and includes multiple fragile and sensitive habitats, in particular the

20 Tijuana Estuary which is a "Wetland of International Importance." Deel. of M.
21 Delaplaine ,r 6; Deel. of S. Vanderplank ,r,r 23-25, 40-54. It also includes 33 plant

22 varieties that are rare, threatened, or endangered in California, and numerous

23 endangered and threatened wildlife species such as the least Bell's vireo that are
24 protected by federal and state law. Delaplaine Deel. ,r,r 6, 9; Vanderplank Deel. ,r 8; 25 Deel. of K. Clark ,r,r 8-31.

26

To protect the environment, NEPA mandates environmental review

27 procedures that ensure informed agency decision-making and facilitate public

28 participation. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348-49
14 California Pis.' Mern. In Supp. of Mot. For Swnrn. J. (17cv1215-GPC(WVG))

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1 (1989). To comply with NEPA, federal agencies must prepare an environmental

2 impact statement to evaluate the environmental effects of major federal actions,

3 such as the Border Wall Projects, before the action is undertaken. 42 U.S.C. §

4 4332(2)(C); Robertson, 490 U.S. at 348-49; see also 40 C.F.R. §§ 1501.2,

5 1502.2(g), 1502.5, 1508.23, 1508.25. Claims asserting NEPA and CZMA

6 noncompliance are reviewed under the APA. 5 U.S.C. §§ 702, 704, 706; California

7 v. Norton, 311 F.3d 1162, 1170 (9th Cir. 2002). Defendants violated NEPA and the

8 APA by conducting no public environmental review of the Border Wall Projects,

9 · including the San Diego and Calexico Projects, which will cause significant harm
10 to the environment. Clark Deel. ,r,r 8-31; Vanderplank Deel. ,r,r 8, 11, 20-61; 5

11 U.S.C. §§ 702, 704, 706(1), 706(2)(A) & (D); 42 U.S.C. § 4332(2)(C).

12

The CZMA is meant to "preserve, protect, develop and where possible, to

13 restore and enhance the resources of the nation's coastal zone." 16 U.S.C. § 1452.

14 The California Coastal Commission ("Commission") implements the CZMA in

15 California. Cal. Pub. Res. Code§§ 30008; 30330. When a federal agency

16 undertakes an activity that affects any land, water uses, or natural resources of the

17 coastal zone, the CZMA requires that agency to provide a "consistency

18 determination" to the Commission that confirms the activity is consistent to the

19 maximum extent practicable with the California Coastal Management Program. 16

20 U.S.C. §§ 1456(c)(l)(A); 15 C.F.R. §§ 930.32, 9320.36, 930.39.

21

For the San Diego Project, a consistency determination is required because it

22 will affect numerous resources in the coastal zone, including endangered species,

23 water quality, public recreation and access to open space, the coast's scenic and
24 visual quality, and archaeological resources. Delaplaine Deel. ,r,r 4-1 O; Ex. 18, Map

25 Depicting Coastal Zone Boundaries, Cal. Pub. Res. Code§§ 30210-13, 30220-21,

26 30223, 30233, 30236, 30240, 30244, 30251. To date, Defendants have not

27 submitted a consistency determination to the Commission for the San Diego
28 Project, or even contacted the Commission about it. Delaplaine Deel. ,r 10.
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1 Accordingly, the Court should find that Defendants violated NEPA and the CZMA,

2 grant summary judgment to Plaintiffs and enjoin them from proceeding with the

3 Border Wall Projects. See Norton, 311 F .3d at 1169-70, 1178 (setting aside

4 approval of offshore lease suspensions because federal government failed to

5 undertake consistency review of the suspensions pursuant to the CZMA); 5 U.S.C.

6 §§ 706(1 ), 706(2)(A) & (D).

7 Ill. NOTHING IN SECTION 102 AUTHORIZES THE BORDER WALL PROJECTS
(THIRD CLAIM)
8

9

The 2017 Waivers seek to waive laws for projects that are not authorized by

10 Section 102. In relying on the waiver provision in Section 102(c), Defendants put

11 the cart before the horse; because the Border Wall Projects are not authorized by

12 Section 102(a) or (b), DHS has no authority to build the projects, and any waiver

13 under Section 102(c) cannot save the Defendants' illegal activity. Here, the Border

14 Wall Projects fail to satisfy three requirements in Section 102(a) and (b), namely,

15 that projects be built: (1) in areas of high illegal entry; (2) as additional barriers, not

16 as replacements for existing fencing; and (3) where the barriers are most practical

17 and effective. Defendants' failure to satisfy any one of these requirements renders 18 their actions unlawful and is a basis for summary judgment. 11

19

A. Section 102 Is Inapplicable Because the San Diego

and Calexico Projects Are Not Located in "Areas of

20

High Illegal Entry"

21

Contrary to what might be gleaned from President Trump's Executive Order,

22 Section 102 does not authorize the construction of a wall across the entire two-

23 thousand-mile southwest border. The plain language of Section 102 only authorizes

24 the Secretary to install additional physical barriers "to deter illegal crossings in

25

26

27

28
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1 areas of high illegal entry." 8 U.S.C. § 1103(a) note (emphasis added).

2 Acknowledging this limitation, the 2017 Waivers assert that the San Diego and El

3 Centro sectors are areas of high illegal entry. To support this assertion, the San

4 Diego Waiver points to the amount of drugs seized and number of persons

5 apprehended during the last fiscal year throughout the entire San Diego sector. (Ex.

6 11.) The Calexico Waiver points to similar sector-wide data from the El Centro

7 sector. (Ex. 12.) Reliance on such sector-wide data is misplaced because it fails to

8 show that the San Diego and Calexico Project Areas are themselves areas of high

9 illegal entry.

10

First, the amount of drugs seized by border patrol agents in a sector says

11 nothing about whether a particular segment of that sector is an area of high illegal

12 entry. Large drug seizures often occur far from the Mexican border at highway

13 checkpoints, during vehicle searches at the points of entry, or when border patrol

14 agents discover a drug-smuggling boat or drone. (Ex. 19, DHS Press Releases and

15 Media Report Concerning USBP Drug Seizures in San Diego and El Centro

16 Sectors.) Nothing suggests such seizures occurred at the segments of the border

17 targeted for the San Diego and Calexico Projects, much less that the amount of

18 drugs seized correlates with the number of illegal entries there.

19

Second, sector-wide apprehension data does not establish that the project areas

20 themselves are areas of high illegal entry. The Calexico Project Area represents

21 only about 4% of the total 70-mile border in the El Centro sector. The San Diego

22 Project Area represents just 1/4 of the 60-mile border within the San Diego sector.

23 Moreover, the Secretary offers no factual findings to demonstrate that these two

24 areas are priority areas within the San Diego and El Centro sectors.

25

The sector-wide apprehension figures are even less probative when one

26 considers that the San D1ego Project Area has fewer illegal border crossings than

27 the San Diego sector as a whole. DHS maintains apprehension data for the stations

28 responsible for specific segments of the border, but the 2017 Waivers do not
17 California Pis.' Mem. In Supp. of Mot. For Summ. J. (17cv1215-GPC(WVG))

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1 mention this information. The reason for this omission is obvious: the most recent,

2 publicly available, station-specific apprehension data demonstrates that the number

3 of illegal entries is much lower in the San Diego Project Area, which is patrolled by

4 the Imperial Beach and Chula Vista Stations, than in the San Diego sector as a

5 whole. (Ex. 3, pp. 8-12; Ex. 20, pp. 19-20; Ex. 22, pp. 10-15 and app. G.) This is

6 unsurprising given that the San Diego Project Area is already the most heavily

7 fortified area along the entire southwest border, with at least two layers of fencing

8 along a 14-mile segment and three layers of fencing in certain areas. (Ex. 1, p. 48,

9 Ex. 22, pp. 10-15 and app. D; Exs, 23-24, Photographs of Triple Fence; Declaration
10 ofM. Cayaban, ,r,r 24-26; Exs. 3, 6, 10.)

11

Further, to the extent sector-wide data is relevant, DHS 's apprehension records

12 show that the San Diego and El Centro sectors are no longer areas of high illegal

13 entry. For example, the CBP's apprehension data indicates the number of

14 deportable migrants apprehended in the San Diego sector fell from 483,815 in 1996

15 (the year Section 102 ofIIRIRA was enacted) to 31,891 in 2016, a reduction of

16 over 93%. (Ex,~' pp. 1, 17; Ex. 22, pp. 12-15 and appendix G.) Between 2013 and

17 2015, the San Diego sector represented just 7% of the total number of

18 apprehensions along the southwest border, far less than sectors in other states. (Ex.

19 1, pp. 46-49.) The decline in El Centro sector apprehensions has been even more

20 dramatic, with a reduction of nearly 92% from 2000 to 2016. (Ex. 2, pp. 1, 17.)

21 Moreover, El Centro sector apprehensions accounted for just 4% of the total

22 number across the entire southwest border between 2013 and 2015. (Ex. 1, pp. 46-

23 49.)

24

Thus, the San Diego and El Centro sectors are not sectors of high illegal entry

25 regardless of whether that term is measured using historical standards or by

26 comparing the current rates of illegal entry across all southwest border sectors.

27 Because Section 102 only authorizes the installation of barriers in areas of high

28
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1 illegal entry, DHS cannot establish that its San Diego and Calexico Projects satisfy

2 this requirement. Accordingly, the projects are not authorized by Section 102.

3

B. Section 102 Permits Only the Installation of

"Additional" Barriers and Roads, Not the

4

Replacement of Existing Fences

5 Section 102 repeatedly uses the word "additional" to describe the types of barriers

6 and roads authorized by the statute. At the outset, Section 102(a) provides:

7

The Secretary of Homeland Security shall take such actions as may be

necessary to mstall additional physical barriers and roads (includmg the

8

removal of obstacles to the detect10n of illegal entrants) in the vicimty of

the United States border to deter illegal crossings in areas of high illegal

9

entry into the United States. (emphasis added)

10 8 U.S.C. § l 103(a) note. Section 102(b)(l) uses the phrase "additional fencing

11 along southwest border" to describe the 700 miles of fencing, including 370 miles

12 of expedited fencing in priority areas, that the Secretary must construct by no later

13 than December 31, 2008. Id. § 1103(b)(1) note. And Section 102(b)(3) uses the

14 term again in directing DHS to incorporate safety features. Id. § l 103(b)(l) note

15 (requiring safety features "while constructing the additional fencing").

16

Congress' repeated use of the word "additional" makes sense given the

17 evolution of border infrastructure along the southwest border and the evolution of

18 Section 102: with each new iteration of Section 102, Congress sought to install

19 fencing in areas where none existed at the time. When Section 102 was originally

20 enacted, Congress sought to add new layers of fencing to supplement the existing

21 primary fence in San Diego. Pub. L. 104-208, div. C, title I,§ 102(a) to (c), 110

22 Stat. 3009-554 (Sept. 30, 1996). When amending Section 102 in 2006, Congress

23 sought to add at least 800 miles of double layered fencing along the border. Pub. L.

24 109-367, § 3, 120 Stat. 2638 (Oct. 26; 2006). Finally, in amending the statute for

25 the last time, Congress imposed a December 31, 2008, deadline for adding

26 hundreds of more miles of fencing in priority areas on an expedited schedule. Pub.

27 L. 110-161, div. E, tit. V, § 564(a), 121 Stat. 2090 (Dec. 26, 2007).

28

This "context," which courts consider in determininga statute's meaning,

19

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1 makes clear that Congress intended Section 102 to permit only the installation of

2 additional fencing, meaning fencing where none existed. McNeill v. United States,

3 563 U.S. 816, 819 (2011). That reading is consistent with the ordinary meaning of 4 the term "additional," which is defined as: existing or coming by way of addition:

5 added, further. Webster's Third New International Dictionary, Copyright 2002.

6 Notably, this is exactly how Section 102 was interpreted in the five waivers 7 initiated by former Secretary Chertoff between September 2005 and April 2008.

8 Each waiver identified projects that proposed the construction of additional fencing

9 in areas where none existed at the time. None of the waivers were initiated for the

10 purpose of replacing, repairing, or enhancing existing barriers. See Exs. 13-17.

11

Unlike the previous waivers and contrary to the express terms of Section 102,

12 the 2017 Waivers do not provide for installation of "additional" barriers or fences.

13 Instead, the 2017 Waivers purport to authorize the replacement of existing fencing.

14 Neither the San Diego or Calexico Projects would result in more miles of fencing 15 along the southwest border. Because Section 102 only allows for the installation of

16 additional fencing, the Secretary and DHS acted beyond the statutory authority

17 granted by Section 102 in commencing construction of the Border Wall Projects.

18

C. Defendants Exceeded Their Statutory Authority by

Constructing Fencing in Areas Where the Barriers

19

Would Not Be "Most Practical or Effective"

20

In 2008, Section 102 was amended to specify the amount and location of

21 fencing permitted under Section 102(a). 8 U.S.C. § 1103(a) note. The 2008 22 Amendment gave the Secretary more discretion concerning the location of

23 additional fencing, but required that the fencing be constructed in areas where it 24 would be "most practical and effective." 12

25 12 The clause "most practical and effective" is used twice within Section
26 102(b). 8 U.S.C. § 1103(b)(l){A) note; Id. § l 103(b){l)(B) note. In light of the
context in which 1t is used and the stated "purpose of carrying out suosection (a)," 27 the phrase "most practical and effective" must be interpreted as applying to areas
where additional fencing would be most the effective in deterring illegal entries. 28
20
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1

DHS officials admit that the San Diego and Calexico Project Areas are not

2 areas where additional infrastructure would be most practical or effective in

3 deterring illegal entries. Former Secretary Kelly has opined that existing fences are

4 "extremely effective" in reducing illegal entries, and DHS concedes that these

5 sectors have the lowest priority for infrastructure projects. (Kelly TV Interview,

6 2:10-2:27; Ex. 9, p. 15.) DHS also acknowledges it does not have any high priority

7 infrastructure needs in either the San Diego or El Centro sectors. Id. Thus, DHS and

8 the Secretary have clearly acted beyond their statutory authority.

9

D. Because Defendants Lack Authority to Build the

Border Wall Projects, the 2017 WaIVers Are Invalid

10

11

Because DHS and the Secretary lack authority to construct the Border Wall

12 Projects under either Section 102(a) or (b), they als·o lack authority to waive laws to

13 expedite that construction under Section 102(c). Section 102(c) provides that:

14

Notwithstanding any other provision of law, the Secretary shall have the

authority to waive all legal requirements such Secretary, m such

15

Secretary's sole discretion, determines necessary to ensure expeditious

construction of the barriers and roads under this section.

16

17 8 U.S.C. § 1103(c)(l) note (emphasis added). As Defendants themselves concede,

18 the phrase "this section" unambiguously refers to Section 102. (Case No. 3: 17-cv-

19 01215-GPC-WVG, Doc. 18-1, p 17.) Accordingly, the phrase "under this section"

20 limits the Secretary's waiver authority to construction authorized by Section 102.

21 See Setser v. United States, 566 U.S. 231,239 (2012) (courts should give effect "to

22 every clause and word of an Act"). Because construction of the Border Wall

23 Projects is not authorized by Section I02 for the reasons explained above, the 2017

24 Waivers likewise are invalid.

25 IV. THE 2017 WAIVERS ARE INVALID BECAUSE THEWAIVER AUTHORITY EXPIRED ON DECEMBER 31, 2008 (FOURTH CLAIM)
26

27

Alternatively, even assuming Section 102 authorizes construction of the

28 Border Wall Projects, the 2017 Waivers are invalid because the authority to issue
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1 them has expired. To hold otherwise would violate the well-established rule that,

2 "[w]hen Congress acts to amend a statute, we presume it intends its amendment to

3 have real and substantial effect." Stone v. INS, 514 U.S. 386,397 (1995).

4

In its 2008 Amendment to Section 102, Congress changed the statute to

5 require the Secretary to "construct reinforced fencing along not less than 700 miles

6 of the southwest border where fencing would be most practical." Pub. L. 110-161,

7 div. E, tit. V § 564, 121 Stat. 2090 (Dec. 26, 2007). Under the heading "PRIORITY

8 AREAS," Congress also required the Secretary, "in carrying out this section," to

9 identify 370 miles "where fencing would be most practical and effective in

10 deterring smugglers and aliens attempting to gain illegal entry into the United

11 States." Id. Significantly, the 2008 Amendment provided that the authority to

12 determine any "other mileage" for priority area fencing "shall expire on December

13 31, 2008." Id. The 2008 Amendment also imposed a deadline of December 31,

14 2008, for the expedited construction of fencing in priority areas. Id.

15

Recognizing the mandate to complete expedited fencing projects by the end of

16 the year, former Secretary Chertoff in 2008 identified more than 370 miles of

17 priority areas for expedited construction, issued waivers for this expedited

18 construction, and committed DHS to a total of 661 miles of border fencing by the

19 first half of 2009. (Ex. 5, pp. 2 (unnumbered), 8-9.) By April of 2013, DHS

20 reported that it had completed all but a one-mile stretch of these projects, which

21 ultimately involved 705 miles of fencing. (Ex. 6, USBP Mileage of Pedestrian and

22 Vehicle Fencing by State.) 13

23

24

25

13See also "The Border Security, Economic Opportunity, and Immigration

Modernization Act, S. 744: Hearing Before the Senate Committee on the

26 Judiciary," April 23, 2013 (remarks by DHS Secretary Janet Napolitano in response

27

to question, stating that the U.S. Border Patrol had completed all but one-mile of the fencing) transcript available at http://www.c-span.org/video/?312302-1/dhs-sec-

28 napolitano-testifies-immigration-reform (last visited November 22, 2017).

22

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1

The imposition of a firm deadline to expedite construction establishes that

2 Congress did not grant the Secretary waiver authority in perpetuity to be used for

3 any and all construction of border fencing. Nor could an unlimited waiver authority

4 be squared with the plain language of Section 102 's waiver provision, which

5 provides that a waiver may be used only when "necessary to ensure expeditious

6 construction of the barriers and roads under this section." 8 U.S.C. § l 103(c)(l)

7 note. Defendants' position to the contrary would render impermissibly superfluous

8 the limitations Congress placed on the Secretary's authority to identify priority

9 areas and to complete construction by the end of 2008. See Duncan v. Walker, 533

10 U.S. 167, 174 (2001). Accordingly, because the waiver authority has already

11 expired, the 2017 Waivers exceeded the Secretary's authority and are therefore

12 invalid.

13 V. DEFENDANTS EXCEEDED THEIR STATUTORY AUTHORITY IN ISSUING THE 2017 WAIVERS BY MAKING No FINDINGS (FIFTH CLAIM)
14

15

Alternatively, even if Section 102 authorizes the Border Wall Projects and the

16 deadline to expedite construction has yet to expire, the 2017 Waivers are invalid

17 because the Secretary failed to make the requisite findings to show that the projects

18 comply with the requirements of Section 102. In issuing the 2017 Waivers, the

19 Secretary must do more than "paraphrase the statutory language." Gonzales v.

20 Oregon, 546 U.S. 243, 257 (2006). Where, as here, an agency alters the application

21 of existing laws, it must give "good reasons" for doing so. Organized Village of

22 Kake v. United States Dep 't ofAgric., 795 F.3d 956, 967, 969 (9th Cir. 2015)

23 (holding agency action invalid because it "failed to provide a reasoned

24 explanation") (citation omitted).

25

The statute's plain language requires the Secretary to determine that the

26 Border Wall Projects meet the requirements of Section 102. Section 102(a) requires

27 that projects be "necessary," limited to "additional physical barriers and roads," and

28 in "areas of high illegal entry." 8 U.S.C. § 1103(a) note. Section 102(b) requires the
23 California Pis.' Mem. In Supp. of Mot. For Summ. J. (l 7cvl215-GPC(WVG))

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1 Secretary to construct fencing where it would be "most practical and effective." Id.

2 at§ l 103(b)(l)(a) note. And Section 102(c) requires the Secretary to determine that

3 waiving certain legal requirements is "necessary to ensure expeditious construction

4 of the barriers and roads." Id.§ l 103(c)(l) note. These findings are necessary so

5 that a court can assess whether the Secretary selected qualifying projects and issued

6 a valid waiver.

7

Here, the Secretary has provided insufficient findings to justify the 2017

8 Waivers. Using boiler plate language copied from the statute, the 2017 Waivers

9 claim that there is an "immediate need to construct border barriers and roads" in the

10 San Diego and Calexico Project Areas because they are "areas of high illegal

11 entry." (Exs. 11, 12.) Such findings are inadequate because an agency that "merely

12 parrots the language of a statute without providing an account of how it reached its
13 results ... has not adequately explained the basis for its decision." Dickson v. Se.c y.

14 ofDef, 68 F.3d 1396, 1405 (D.C. Cir. 1995) (rejecting agency's waiver decision).

15 The 2017 Waivers also fail to support their conclusory statements that replacement

16 of fencing will "deter and prevent illegal crossings." (Exs. 11, 12.) And the Waivers

17 do not even contend that the Border Wall Project Areas are where fencing would be

18 "most practical and effective," as required by Section 102(b). Because the 2017

19 Waivers' boiler plate statements offer no good reasons for stripping Californians of

20 their legal rights, the 2017 Waivers are invalid.

21 VI. THE 2017 WAIVERS INTERFERE WITH CALIFORNIA'S EQUAL

SOVEREIGNTY AND POLICE POWERS IN VIOLATION OF THE TENTH

22

AMENDMENT'S FEDERALISM PRINCIPLES (ELEVENTH CLAIM)

23

The Tenth Amendment to U.S. Constitution states that "[t]he powers not

24 delegated to the United States by the Constitution, nor prohibited by it to the States,

25 are reserved to the States respectively, or to the people." The Supreme Court has

26 interpreted this amendment to protect states and their people from federal

27 overreach, including a federal law that burdens some geographic regions but not

28 others or invades realms traditionally reserved to the states absent a showing that it
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1 is "sufficiently related to the problem that it targets." Shelby Cty., Ala. v. Holder,

2 133 S. Ct. 2612, 2622 (2013) (citation omitted). The Court has recognized that a

3 federal statute violates the Tenth Amendment as over-inclusive in either of two

4 ways. First, a validly enacted federal statute that burdens a subset of states but not

5 others will become unconstitutional if progress is made curbing the problem the

6 statute seeks to prevent. Id. at 2628-29. Second, a federal statute that interferes with

7 states' traditional police powers by enabling the nullification of laws which do not

8 impede the statute's object is a disproportionate and therefore unconstitutional

9 means to an end. City ofBoerne v. Flores, 521 U.S. 507, 534-535 (1997). Because

10 Section 102(c) suffers from both these constitutional infirmities, it cannot validly

11 strip California and its people of their legal protections.

12

The Supreme Court recently curbed the same type of federal overreach on

13 display here. In Shelby County, the Court struck down a federal statute authorizing

14 the Executive Branch to suspend certain election laws in several California counties

15 and nine states because imposing such a burden on some geographic regions and

16 not others violated the '"fundamental principle of equal sovereignty" among the

17 states. Id. at 2622 (quoting Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S.

18 193,203 (2009)). The Court acknowledged that, in bardng literacy tests and other

19 racially-motivated forms of vote suppression, the federal law at issue-Section 4(b)

20 of the Voting Rights Act ("VRA")-was constitutionally enacted pursuant to the

21 Fifteenth Amendment and Article I, which affords Congress "significant control

22 over federal elections."Jd. at 2623, 2629.

23

Nonetheless, the Court held that Section 4(b) had become unconstitutional in

24 recent years because, by 2013, its disparate treatment of covered and non-covered

25 states no longer could be justified by "current needs," making it "irrational." Id. at

26 2630-31. The Court found that the VRA had reduced the disparity between

27 African-American and white voter turnout in those regions. Id. At the same time,

28 the Executive Branch had curtailed its exercise of the VRA-created power to
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1 suspend local laws, underscoring the lack of need for federal interference in at least

2 some states or local areas. Id. at 2626. Because some states and local areas had

3 shown signs of progress, the Court held that the VRA's "disparate treatment of the

4 States" was unconstitutional as to all of them. Id.

'

5

Here, changed circumstances-dramatic reductions across the entire southwest

6 border and even steeper declines in illegal border crossings within the specific

7 project areas selected by DHS-have similarly rendered Section 102

8 unconstitutional. As in Shelby County, the success of earlier federal action has

9 eliminated the justification for continuing to subject some states and not others to

10 federal interference, such as the waiver of existing California law and the waiver of

11 California's rights under federal law. In the two decades following the 1996

12 passage of Section 102, illegal border crossings dropped by over 93% in the San

13 Diego Sector (Ex. 2, pp. 1, 17; Ex. 22, pp. 12-15; Appendix G) and 92% in the El

14 Centro Sector over the past 16 years. Moreover, illegal crossings along the entire

15 . Southwest border have fallen 75% since their peak. (Ex. 2; pp l, 17; Ex. 8, p. 19.)

16 In addition, in the last eight years, illegal border crossings in the San Diego Project

17 Area have declined by 75% (Ex. 2). Texas and Arizona now account for 92% of the

18 relatively few illegal crossings that continue. (Ex. 1, pp. 45-46; Ex. 2, p. 17; Ex. 20,

19 p. 20).

20

This progress "cannot be ignored" and confirms that continued federal

21 interference in state police powers and state sovereignty is no longer justified.

22 Shelby Cty., 133 S. Ct. at 2628. Because some regions, such as the project areas

23 within California, no longer suffer from the once widespread problem that Congress

24 sought to combat, the "substantial federalism costs" that Section 102(c) imposes are

25 no longer justified. Id. at 2622. Much like in Shelby, the disparate treatment of

26 California, which has been targeted for the waiver of state laws even though the

27 California sectors are no longer experiencing larger numbers of illegal entries,

28 renders the entire statute unconstitutional under the Tenth Amendment. 26
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1

Moreover, the sweeping waiver provision in Section 102(c) is far broader and

2 interferes far more with state sovereignty than any statute before it. According to

3 the DHS, Section 102(c) permits the Executive Branch to indefinitely waive all

4 state and local laws and regulations, requires no factual findings to justify it, and

5 deprives a litigant of any forum to challenge whether the statute's requirements

6 were even met. In contrast, the section of the VRA struck down by the Supreme

7 Court permitted the Executive Branch to suspend only "a discrete class" of state

8 laws, and allowed any covered region to exempt itself from federal oversight

9 simply by showing in court that the harm the VRA sought to prevent had not

10 occurred in "the preceding five years." City ofBoerne, 521 U.S. at 533-535

11 (citation omitted).

12

Alternatively, Section 102(c) is unconstitutional because it is a "considerable

13 congressional intrusion into the States' traditional prerogatives and general

14 authority to regulate for the health and welfare of their citizens." City ofBoerne,

·15 521 U.S. at 534. It is well-established that the federal government "possesses only

16 limited powers," whereas the Tenth Amendment ensures that "the States and the

17 people retain the remainder." Bond v. United States, 134 S. Ct. 2077, 2086 (2014).;

18 U.S. Const., amend. X. And even where Congress acts pursuant to those limited

19 powers, it may still run afoul of federalism principles-as in Shelby County, where

20 the Court struck down the VRA. U.S. Const. art. I, Section 4, cl. 1; Shelby Cty., 133

21 S. Ct. at 2623. "States have broad authority to enact legislation for the public

22 good-what we have often called a 'police power."' Bond, 134 S. Ct. at 2086.

23 Applying these principles, the Supreme Court has refused to enforce federal laws

24 that, like Section 102(c), curtail states' "great latitude under their police powers to

25 legislate as to the protection of the lives, limbs, health, comfort, and quiet of all

26 persons." Gonzales v. Oregon, 546 U.S. 243,270 (2006). The Court also

27 recognized that a federal law is unconstitutional where it so interferes with states'

28 traditional police powers as to be "out of proportion" to its object. City ofBoerne,
27 California Pis.' Mern. In Supp. of Mot. For Summ. J. (l 7cvl215-GPC(WVG))

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1 521 U.S. at 533-536 (act which provided broad powers to nullify state laws not

2 justifiable based on current needs, as the legislative history contained only old or

3 "anecdotal evidence" of the harm Congress sought to curtail).

4

Section 102(c) reflects an even more disproportionate response to a

5 nonexistent need. Like the act at issue in City ofBoerne, Section 102(c) is grossly

6 overbroad; its "sweeping coverage ensures its intrusion at every level of

7 government" and purports to allow the waiver of "all federal and state law." Id. at

8 532. Such federal overreach is disproportionate because it endangers laws that do

9 not work the evil Congress sought to combat, such as California's work place

10 safety, contract, and anti-graft laws. Further, forcing states to "beseech the Federal

11 Government for permission to implement laws" they otherwise could enforce in

12 their own courts is an unconstitutional intrusion into state sovereignty. Shelby Cty.,

13 133 S. Ct. at 2624. Because this "federal intrusion into sensitive areas of state and

14 local policymaking" is an "extraordinary departure from the traditional course of

15 relations between the States and the Federal Government," Section 102(c) must fail.

16 Id. at 2624 (citation omitted).

17 VII. SECTION 102(c)'s PROCEDURAL HURDLES AND THE VAGUE 2017

WAIVERS VIOLATE CALIFORNIA'S ARTICLE III AND DUE PROCESS

18

RIGHTS (SIXTH CLAIM)

19

DHS's vague 2017 Waivers and Section 102(c)'s unreasonable procedural

20 hurdles are an impermissible assault on Californians' Article III and due process

21 rights and the rights of potential parties to petition the Court. "A fundamental

22 principle in our legal system is that laws which regulate persons or entities must

23 give fair notice of conduct that is forbidden or required." FCC v. Fox Television

24 Stations, Inc., 567 U.S. 239, 253 (2012). The 2017 Waivers violate that principle by

25 failing to identify the state laws that are purportedly waived. For example, the 2017

26 Waivers purport not only to waive the 37 federal laws identified in the waivers but

27 also "all ... state, or other laws, regulations and legal requirements of, deriving

28 from, or related to the subject of' those federal statutes. California and its citizens
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1 are placed in the position of having to guess which state laws have been waived

2 and, thus, unable to determine the scope of conduct that remains the subject of its

3 own laws.

4

Moreover, the San Diego Waiver is hopelessly vague when it states that DHS

5 intends to install "various border infrastructure projects" within the "Project Area,"

6 a 15-mile segment of the border. (Ex. 11.) While the San Diego Waiver identifies

7 two examples of infrastructure projects DHS intends to build (prototypes and the

8 replacement of the primary fence), it fails to describe the other "various border

9 infrastructure projects" that DHS may elect to build sometime in the future. The

10 San Diego Waiver, therefore: (1) does not provide sufficient information to

11 determine whether the undisclosed projects are authorized by Section 102; (2) gives

12 no notice to property owners that their land may be burdened by the waiver; and,

13 (3) leaves open the possibility that DHS may attempt to build additional projects

14 not authorized by Section 102.

15

In addition, the San Diego Waiver fails to provide reasonable notice of when

16 any of these undisclosed projects will be constructed and purports to waive federal

17 and state laws for the on-going maintenance of those structures. This means DHS

18 may attempt to build a solid wall, or some other undisclosed structure, five or ten

19 years from now and claim the San Diego Waiver still applies, or may even assert

20 that the San Diego Waiver applies in perpetuity. The San Diego Waiver also fails to

21 specify how far the project area will extend in a northerly direction, leaving open

22 the possibility these undisclosed projects will lead to the condemnation of

23 additional state-owned or private property.

24

These uncertainties leave California and its citizens in legal limbo - unable to

25 determine whether the various infrastructure projects will be the types of projects

26 authorized under Section 102, whether the area will be considered an area of high

27 illegal entry at the time it is installed, and whether they should file a claim to

28 protect their individual rights.
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1

The problems created by the 2017 Waivers' lack of clarity are compounded by

2 a 60-day statute of limitations that runs upon their publication, creating the risk that

3 Californians will not learn about the full extent of the 2017 Waivers until it is too

4 late. The Supreme Court has recognized that "all statutes of limitation must proceed

5 on the idea that the party has full opportunity afforded him to try his right in the

6 courts." Wilson v. lseminger, 185 U.S. 55, 62-63 (1902). Here, Section 102's 60-

7 day limitations period is "manifestly unjust" because, when combined with the

8 2017 Waivers' lack of clarity, it deprives a litigant "of a forum without giving ...

9 adequate notice to protect its otherwise valid rights." Hartford Cas. Ins. Co. v.

10 FDIC, 21 FJd 696, 701-04 (5th Cir. 1994). In effect, the 60-day limitations period

11 and the vague nature of the 2017 Waivers are being used to strip California and

12 other litigants of their rights afforded under Section 102(c) and Article III of the

13 United States Constitution.

14

In addition, by barring all non-constitutional claims from being heard in any

15 forum, Section 102(c)(2)(A) unconstitutionally interferes with the "right of access

16 to the courts"-one of the "most precious" liberties safeguarded by the First

17 Amendment. BE & K Const. Co. v. NLRB, 536 U.S. 516, 524-525 (2002); U.S.

18 Const. amend. I; see also, Commodity Futures Trading Comm. v. Schor, 478 U.S.

19 833, 848 (1986). A statute like Section 102 that imposes burdens to discourage

20 litigants from challenging its "validity or enforcement," is especially suspect. See,

21 In re Workers' Compensation Refimd, 46 F.3d 813, 821-22 (8th Cir. 1995).

22 Accordingly, Section 102's procedural hurdle·s, combined with the 2017 Waivers'

23 vagueness, amount to "an unlawful attempt to extinguish rights arbitrarily." Wilson,

24 185 U.S. at 62-63.

25 VIII. THE 2017 WAIVERS VIOLATE THE SEPARATION OF POWERS
DOCTRINE (SEVENTH CLAIM)
26

27

The Supreme Court has consistently reaffirmed "the central judgment of the

28 Framers of the Constitution that, within our political scheme, the separation of
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1 governmental powers into three coordinate Branches is essential to the preservation

2 of liberty." Mistretta v. United States, 488 U.S. 361, 380-384 (1989). The Court has

3 also recognized that "our constitutional system imposes upon the Branches a degree

4 of overlapping responsibility, a duty of interdependence as well as independence

5 ·the absence of which 'would preclude the establishment of a Nation capable of

6 governing itself effectively."' Id. The key constitutional concern is whether actions

7 or provisions of law "either accrete to a single Branch powers more appropriately

8 diffused among separate Branches or that undermine the authority and

9 independence of one or another coordinate Branch." Id.

10

The Constitution separates the power to make law from the power and duty to

11 execute the law. Article I vests "[a]ll legislative powers" in the Congress. U.S.

12 Const. art. I, section 1. The President's constitutional role is to "take Care that the

13 Laws be faithfully executed." U.S. Const. art. II, Section 3. This separation of

14 legislative and executive power is a central foundation of our government. See, e.g.,

15 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952); Buckley v.

16 Valeo, 424 U.S. l, 129 {1976); Chadha, 462 U.S. 919; Bowsher v. Synar, 478 U.S.

17 714 (1986). Therefore, Congress cannot vest its own legislative powers in the

18 Executive Branch even if Congress intended such a result. Clinton v. New York, 524

19 U.S. 417, 444-447 (1988). As the Court explained in Youngstown Sheet & Tube

20 Co., 343 U.S. at 587, "the President's power to see that the laws are faithfully

21 executed refutes the idea that he is to be a lawmaker."

22

The Supreme Court has upheld statutes where Congress "legislated in the

23 contingency" by providing the Executive Branch with specific laws that Congress

24 has deemed appropriate to waive in certain contingent circumstances. For example,

25 the Court rejected challenges under the separation of powers doctrine in cases such

26 as Field v. Clark, 143 U.S. 649 (1892) and J W. Hampton, Jr. & Co. v. United

27 States, 276 U.S. 394 (1928), where Congress performed thelegislative function of

28 deciding which specific tariffs, or laws, could be modified or terminated and under
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1 what circumstances, and the President was "the mere agent of the lawmaking

2 department to ascertain and declare the event upon which its expressed will was to

3 take effect." J. W Hampton, Jr. & Co., 276 U.S. at 411. Another example is the

4 original version of Section 102, where Congress allowed for the waiver of two

5 specific acts of Congress, NEPA and the ESA, under certain circumstances, and

6 where the laws were clearly spelled out. In that case, the Executive Branch was

7 merely provided with discretion on how to implement the waivers of two statutes

8 that Congress had already chosen. Pub. L. 104-208, div. C, § 102(c).

9

In stark contrast, the current version of Section 102 authorizes the DHS

10 Secretary to pick and choose among enacted laws and determine, in his or her sole

11 discretion, which pieces shall be waived. In enacting Section 102,

12 Congress has not stated which laws are to be waived or why, and has instead given

13 the Executive Branch that authority. Section 102 was not "legislated in the

14 contingency" as the Supreme Court allowed in the Field and J. W Hampton cases,

15 and Congress had no idea which laws were going to be waived when it enacted the

16 law, nor did the President when he signed the law. Congress has thus impermissibly

17 granted the Executive Branch the essential legislative power of waiving existing

18 law. Such a blanket waiver is investing legislative functions in the Executive

19 Branch, a clear violation of the doctrine of the separation of powers. This waiver

20 authority must therefore be declared unconstitutional and the 2017 Waivers must be

21 invalidated.

22 IX. SECTION 102(C) AND THE 2017 WAIVERS VIOLATE THE NON-
DELEGATION DOCTRINE (EIGHTH CLAIM)
23

24

"The fundamental precept of the delegation doctrine is that the lawmaking

25 function belongs to Congress ... and may not be conveyed to another branch or

26 entity." Lovingv. United States, 517U.S. 748,758 (1996) (citingFieldv. Clark,

27 143 U.S. 649, 692 (1892)). "The Congress is not permitted to abdicate or to transfer

28 to others the essential legislative functions with which it is thus vested." A.L.A.
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1 Schechter Poultry Corp. v. United States, 295 U.S. 495, 529 (1935). This doctrine

2 stems from Article 1, Section I of the U.S. Constitution, which provides that "[a]ll

3 legislative powers herein granted shall be vested in a Congress of the United States

4

"

A. The Section 102(c) Waiver Provision Lacks a Sufficient

5

Intelligible Principle

6
Congress may delegate legislative power if it provides sufficient guidance for 7
the recipient of that delegation. "[W]hen Congress confers decision making 8
authority upon agencies Congress must 'lay down by legislative act an intelligible 9
principle to which the person or body authorized to [act] is directed to conform."' 10
Whitman v. Am. Trucking Assocs., 53 l U.S. 457, 472 (2001) (quoting J W.
11 Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928)). This "intelligible
12 principle" limits the scope of the delegation and enables review of whether the
13 agency has properly exercised the delegated authority to achieve Congress'
14 objective. Amalgamated lvleat Cutters and Butcher Workmen v. Connally, 337
15 F.Supp. 737, 746 (D.D.C. 1971). It must be sufficiently definite to "enable
16 Congress, the courts and the public to ascertain whether the [recipient of delegated
17 authority] has conformed to those standards." Yakus v. United States, 321 U.S.
18 414, 426 (1944).
19 Previous district courts have found an intelligible principle in Section 102(c)'s
20 inclusion of the words "necessary to ensure expeditious construction of the barriers
21 and roads under this section." E.g., Defenders of Wildlife v. Chertojf, 527 F. Supp.
22 2d 119, 128 (D.D.C. 2007); County ofEl Paso v. Chertojf, No. EP-08-CA-196-FM,
23 2008 WL 4372693 (W.D. Tex. 2008). All four district courts to consider the
24 question reasoned that the circumstances in which the waiver could be exercised
25 were narrow enough that it was an appropriate delegation of congressional
26 authority. Defenders of Wildlife, 527 F. Supp. 2d at 128; County ofEl Paso, 2008
27 WL 4372693; Save Our Heritage Organization v. Gonzalez, 533 F. Supp. 2d 58
28
33
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1 (D.D.C. 2008); Sierra Club v. Ashcroft, No. 04CV0272-LAB (JMA) (S.D. Cal.

2 2005). As one court explained, "the Secretary may only exercise the waiver

3 authority for the 'narrow purpose' prescribed by Congress: 'expeditious

4 completion' of the border fences authorized by Section 102 in areas of high illegal

5 entry." Defenders of Wildlife v. Chertoff, 527 F. Supp. 2d at 128.

6

However, even if this guidance provided a sufficiently intelligible principle

7 when Section 102(c) was enacted, it no longer serves that purpose today. The

8 passage of time rendered the criteria of "expeditious construction" useless as an

9 intelligible principle; the word "expeditious" is defined as "marked by or acting

10 with prompt efficiency." Merriam-Webster Online Dictionary, 2017.

11 http://www.merriam-webster.com (Oct. 23, 2017). Applying the phrase

12 "expeditious construction" to new border infrastructure projects, planned and built

13 nearly a decade after the last amendment to Section 102, would strain that

14 definition.

15

B. The Lack of Judicial Review Violates the Non-

Delegation Doctrine

16

17

The availability of review-whether it be judicial review, administrative

18 review, or congressional oversight-is critical to a proper delegation of

19 congressional authority. "The safeguarding of meaningful judicial review is one of

20 the primary functions of the doctrine prohibiting undue delegation of legislative

21 powers." Amalgamated Meat Cutters, 337 F. Supp. at 759. Judicial review ensures

22 that the agency or official to which Congress has delegated power adheres to the

23 intelligible principle Congress provided. "The legislative policies and standards

24 being clear, judicial review of the remedies adopted by the [agency] safeguards

25 against statutory or constitutional excesses." Am. Power & Light Co. v. SEC, 329

26 U.S. 90, 106 (1946). Without an opportunity for meaningful review of whether an

27 agency or official is acting within the scope of Congress' delegation of authority,

28 the intelligible principle performs no function at all.
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1

In A.L.A. Schechter Poultry, the Court struck down the National Industrial

2 Recovery Act. There, the Court expressed concern about the lack of review

3 provided by the statute, explaining that the statute in question dispensed with the

4 administrative procedures in place under the Federal Trade Commission Act "and

5 with any administrative procedure of an analogous character." A.L.A. Schechter

6 Poultry, 295 U.S. at 533. The Court focused on the fact the National Industrial

7 Recovery Act included no procedures at all for review of whether actions taken by

8 the President came within the scope of Congress' delegated authority. Id. This lack

9 of review, combined with the lack of an intelligible principle, resulted in the

10 Court's decision to strike down the statute.

11

Courts have on numerous occasions found that it was the review -judicial or

12 otherwise-provided by the statute in question that saved the statute from a non-

13 delegation challenge. See e.g. Touby v. United States, 500 U.S. 160 (1991);

14 Humphrey v. Baker, 848 F.2d 211 (D.D.C. 1988). Section 102(c)'s waiver

15 provision, however, provides no meaningful opportunity for review of the

16 Secretary's exercise of the waiver if the only challenges that can be brought are

17 constitutional challenges and the Secretary is allowed to exercise congressional

18 powers in his or her sole discretion and without regard to prerequisites set forth in

19 the statute. Because there is no meaningful opportunity for review of whether the

20 Secretary's invocation of the waiver authority adheres to any intelligible principle,

21 Section 102(c) violates the non-delegation doctrine.

22 X. SECTION 102(C) AND THE 2017 WAIVERS VIOLATE ARTICLE I, SECTION 3, OF THE UNITED STATES CONSTITUTION (NINTH CLAIM)
23

24

Article I, Section 3 of the United States Constitution states in regard to

25 impeachment that "the Party convicted shall nevertheless be liable and subject to

26 Indictment, Trial, Judgment and Punishment, according to Law." The Supreme

27 Court has stated on numerous occasions that this means the Constitution does not

28 provide immunity to criminal laws or criminal prosecution. 0 'Shea v. Littleton, 414
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1 U.S. 488, 503-504 (1974); Dennis v. Sparks, 449 U.S. 24, 31-32 (1980). The Court

2 has repeatedly drawn distinctions between officials' powers to overcome civil law

3 and powers to overcome criminal law. In Dennis v. Sparks, the Supreme Court held

4 that a state judge could be held criminally liable for conspiracy involving bribery

5 under 42 U.S.C. § 1983, despite the judge being immune to civil liability under the

6 same statute. Dennis, 449 U.S. at 27-29. In other words, no person is above the law.

7 US. v. Lee, 106 U.S. 196, 220 (1882).

8

Further, Article I, Section 2 of the U.S. Constitution states that the President

9 "shall have Power to grant Reprieves and Pardons for Offences against the United .

10 States, except in Cases of Impeachment." This is the Executive Branch's check on

11 the power of the other two branches when acting in the criminal law sphere. Ex

12 Parte Grossman, 267 U.S. 87, 119-120 (1925). But the President and the Executive

13 Branch appointees are not immune from criminal prosecution and cannot simply

14 ignore or unilaterally waive a criminal law of the United States. See United States v.

15 Nixon, 418 U.S. 683, 707-708 (1974); Marbury v. Madison, 5 U.S. 137, 165-166

16 (1803). This is at the very heart of our Constitution. Nixon, 418 U.S. at 709; Berger

17 v. United States, 295 U.S. 78, 85-87 (1935).

18

Here, the Secretary has waived numerous criminal laws concerning Border

19 Wall Projects' c.onstruction. The Secretary, for example, has waived the Resource

20 Conservation Recovery Act provision (42 U.S.C. § 6928) making it a crime to

21 knowingly dump hazardous waste that puts another person in imminent danger of

22 death or serious bodily injury. The Secretary has also waived a law making it a

23 crime to knowingly pollute a river, stream or other water of the United States in a

24 way that places another person in imminent danger of death or serious bodily harm

25 in contravention of the federal Clean Water Act, 33 U.S.C. § 1319(c). Congress

26 cannot provide the President or the Executive Branch with such sweeping powers to

27 waive federal criminal laws in its sole discretion, without even listing which

28 criminal laws can be waived. This is contrary to our legal system and puts the
36 California Pis.' Mem. In Supp. of Mot. For Swnm. J. (l 7cv1215-GPC(WVG))

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1 Executive Branch above the law of the United States.

2

In addition, the Supreme Court has not resolved the question of whether more

3 specific guidance from Congress is required than the ordinary "intelligible

4 principle" where the delegation of legislative powers to the Executive Branch

5 pertains to criminal law or criminal sanctions. Touby v. United States, 500 U.S.

6 160, 165-66 (1991) ("Our cases are not entirely clear as to whether more specific

7 guidance is in fact required.") Here, however, Section 102, if it even provides the

8 necessary guidance required by the "intelligible principle," certainly does not

9 provide any further guidance that may be required for acting in the criminal sphere.

10 In fact, Section 102 allows the Executive Branch to immunize itself and its

11 contractors from any criminal law it deems necessary in its sole discretion.

12 Congress does not even name the criminal laws that can be waived. Therefore,

13 Section 102 has not met the heightened standard required of delegating in the

14 criminal sphere and has allowed the Executive Branch to put itself above the law.

15 Section 102 's waiver authority must therefore be declared unconstitutional and the

16 2017 Waivers should be declared invalid.

17 XI. SECTION 102(C) AND THE 2017 WAIVERS VIOLATE THE PRESENTMENT
CLAUSE (ART. l, SECTION 7) (TENTH CLAIM)
18

19

The Presentment Clause provides that"[e]very Bill which shall have passed

20 the House of Representatives and the Senate, shall, before it becomes a Law, be

21 presented to the President of the United States; if he approves he shall sign it, but if

22 not he shall return it." U.S. Const. art. I, Section 7, cl. 2. The Supreme Court has

23 interpreted these procedural requirements to apply to both the enactment and repeal

24 of statutes. INS v. Chadha, 462 U.S. 919,954 (1983).

25

Section 102(c) suffers from the same constitutional weaknesses as the Line

26 Item Veto Act at issue in Clinton v. City ofNew York, 524 U.S. 417 (1998). There,

27 the Supreme Court struck down the line item veto under the Presentment Clause

28 because the act, in legal and practical effect, allowed the President to partially
37 California Pis.' Mem. In Supp. of Mot. For Summ. J. (17cv1215-GPC(WVG))

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1 repeal laws, depriving the vetoed provisions of legal force and effect. Id. at 438. In

2 arriving at this conclusion, the Court distinguished the Line Item Veto Act from the

3 Tariff Act it upheld in Field v. Clark, 143 U.S. 649 (1892). The Court identified

4 three critical differences between the two acts that demonstrated the

5 unconstitutionality of the Line Item Veto Act. Clinton, 524 U.S. at 443. First,

6 exercise of the line item veto was contingent on conditions that existed when

7 Congress passed the laws the President partially vetoed, whereas suspension of

8 import duty exemptions in Field was contingent on conditions that did not exist

9 when Congress passed the Tariff Act issuing those exemptions. Id. Second, in

10 Clinton, after making congressionally prescribed determinations, the Executive

11 retained unbridled discretion regarding whether to veto spending measures. Id. at

12 443-44. And third, in issuing a line item veto, the President was acting contrary to

13 congressional intent. Id. at 444. The Line Item Veto Act, therefore, gave the

14 President "unilateral power to change the text of duly enacted statutes" in violation

15 of the Presentment Clause. Id. at 447.

16

Here, Section 102(c) grants the Secretary nearly unbridled discretion in

17 determining which laws to waive, under what timeline, and the scope of activities

18 covered by the waiver. Unlike Field, in which the President had a duty to act in

19 congressionally defined ways after determining a threshold condition had been met,

20 here the Secretary has unchecked authority to waive any laws for an indefinite time

21 period once he or she determines it necessary for expeditious border security. In

22 fact, the Secretary's discretion to waive any laws is broader in some ways than that

23 of the President to exercise the line item veto in Clinton. There, the President could

24 exercise the line item veto only with respect to spending measures and Congress

25 retained the power to reject the line item veto. Clinton, 524 U.S. at 436. Here, the

26 Secretary has authority to waive any law regardless of subject matter, including

27 laws far outside the Secretary's homeland security expertise, and Congress has

28 retained no authority to reject the waivers.
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1

Further, much like the Line Item Veto Act at issue in Clinton, the waiver

2 provision allows the Executive to act contrary to the intent of Congress by waiving

3 laws passed by Congress and intended to apply to activities in the relevant region.

4 By remaining silent as to which laws the Secretary could waive, Congress provides

5 no guidance as to its intent regarding which laws the Secretary should waive. Did

6 Congress intend for the Secretary to waive bribery and racketeering laws, or the

7 prohibition on the intentional disposal of hazardous waste? Section 102(c) grants

8 such broad discretion to the Secretary regarding which, if any, laws to waive that

9 the Secretary's actions only can be said to be implementing the Executive's will,

10 not that of Congress. Also, as in Clinton, the fact that that Congress intended to

11 allow waivers when it passed Section 102(c) is of no import if the waiver provision

12 is unconstitutional. Clinton, 524 U.S. at 445-46.

13

The existence and use of waiver provisions in other laws does not force an

14 alternative conclusion, contrary to the court's view in Defenders of Wildlife v.

15 Chertoff, 527 F. Supp. 2d 119, 125 (D.D.C. 2007). Other waiver provisions have

16 limited Executive discretion by allowing waiver of a provision within the same act

17 or a limited category of laws, or by mandating specified waiver actions once the

18 Executive determines a threshold event has occurred, and none has precluded

19 judicial review. See, e.g., 10 U.S.C. § 433 (limiting waivable laws to those specific

20 laws regarding management of Federal agencies); 22 U.S.C. § 7207(a)(3) (allowing

21 waiver of restrictions on aid to specified countries for specific reasons). In contrast,

22 the waiver provision in Section 102(c) grants the Secretary unbridled discretion to

23 waive any and all laws for an indefinite time and for undefined activities, and

24 provides for limited judicial review. This waiver, more than those in other statutes,

25 purports to allow the Secretary to unilaterally change statutes.

26

Further, no court to address Section 102(c) has dealt with such a broad

27 application of the waiver provision. See, e.g., Defenders, 527 F. Supp. 2d 119; Save

28 Our Heritage Organization v. Gonzalez, 533 F. Supp. 2d. 58 (D.D.C. 2008). By
39 California Pis.' Mem. In Supp. of Mot. For Summ. J. (l 7cvl215-GPC(WVG))

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1 expanding the use of the waiver provision, the 2017 Waivers demonstrate more

2 clearly than the previous waivers the similarity between Section 102(c) and the

3 Line Item Veto Act that the Court held unconstitutional in Clinton. The Secretary

4 has used nearly unbridled discretion to effectively repeal dozens of laws - robbing

5 them of legal force and effect for an indefinite time period and for as yet undefined

6 activities in the region. Therefore, the Secretary's application of Section 102(c) in

7 the 2017 Waivers violates the Presentment Clause of the Constitution.

8

CONCLUSION

9

Defendants' ill-defined and ill-considered project to construct a massive

10 border wall and related barriers along our international border with Mexico is

11 beginning to lunge forward in virtually secret-until-the-last-minute steps. This

12 piecemeal activity is occurring without the comprehensive and reasoned public

13 review and mitigation of the adverse environmental impacts of Defendants'

14 proposed multibillion dollar development that is envisioned by fundamental federal

15 statutes such as NEPA and the CZMA. This unlawful conduct cannot be justified

16 by the outdated and inapplicable waiver provisions of Section 102 and is wholly

17 inconsistent with the constitutional safeguards discussed above. Accordingly, the

18 People of the State of California and the California Coastal Commission

19 respectfully request the Court to enter summary judgment in favor of their claims.

20 Dated: November 22, 2017 21 22 23

Respectfully Submitted,
XAVIER BECERRA
Attorney General of California TIMOTHY R. PATTERSON Supervising Deputy Attorney General

24

s/Michael P. Cayaban

MICHAEL P. CAYABAN

25

Supervising Deputy Attorney General

AttorneysJar the People ofthe State of

26

California, by and through Xavier Becerra,

Attorney General, and the California Coastal

27

Commission

28
40 California Pis.' Mem. In Supp. of Mot. For Swnm. J. (l 7cv1215-GPC(WVG))

 
 Case 3:17-cv-01215-GPC-WVG Document 35-1 Filed 12/20/17 PageID.1090 Page 1 of 99

1 CHAD A. READLER

Acting Assistant Attorney General 2 Civil Division

3

JOHN R. TYLER Assistant Branch Director

4 GALEN N. THORP Senior Counsel

5 VA State Bar No. 75517

950 Pennsylvania Avenue NW 6 Washington, DC 20530

7

Tel: (202) 514-4781 Fax: (202) 616-8460

8 Email: galen.thorp@usdoj.gov

9 Attorneys for Defendants

10 [Additional counsel listed below]

11

UNITED STATES DISTRICT COURT

12

SOUTHERN DISTRICT OF CALIFORNIA

13

14

Case No. 17cv1215-GPC(WVG)

15 IN RE: BORDER
16 INFRASTRUCTURE 17 ENVIRONMENTAL LITIGATION 18 19 20 21 22 23 24 25 26

Consolidated with Case No. 17cv1873 GPC (WVG) Case No. 17cv1911 GPC (WVG)
DEFENDANTS’ MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTIONS FOR SUMMARY JUDGMENT AND IN SUPPORT OF DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT
Date: February 9, 2018 Time: 1:30 pm Courtroom: 2D Hon. Gonzalo P. Curiel

27

28

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1

TABLE OF CONTENTS

2 TABLE OF CONTENTS.................................................................................... ii
3
4 TABLE OF AUTHORITIES ............................................................................. iv

5 TABLE OF EXHIBITS .................................................................................. xvii

6 INTRODUCTION .............................................................................................. 1
7 BACKGROUND ................................................................................................ 2 8
I. Statutory Framework .................................................................................... 2 9
II. The Secretary’s Exercise of Waiver Authority ............................................ 5 10
11 III. Procedural History ........................................................................................ 8

12 ARGUMENT ...................................................................................................... 8

13 I. Standard of Review ...................................................................................... 8

14

II. California Has Not Carried Its Burden to Establish Standing...................... 9

15

III. Plaintiffs’ Non-Constitutional Claims Regarding the Waiver

16

Decisions Must be Dismissed..................................................................... 10

17

A. The Court Lacks Jurisdiction to Consider Plaintiffs’ Non-

18

Constitutional Claims Regarding the Waiver Decisions...................... 10

19

1. Congress plainly intended to bar all judicial review of non-

constitutional claims....................................................................... 11 20

21

2. The legislative history and statutory context support the plain meaning of the jurisdictional bar ................................................... 14

22

3. Plaintiffs cannot evade the jurisdictional bar by framing their

23

claims as ultra vires challenges...................................................... 17

24

4. Plaintiffs have not established that they have statutory rights

to vindicate through litigation ........................................................ 23 25

26

B. To the Extent the Court Conducts Ultra Vires Review, It Must Conclude that the Secretary Did Not Exceed His Statutory

27

Authority............................................................................................... 25

28

Defs.’ Cross-Motion for Summary Judgment

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1

1. Plaintiffs cannot show that § 102(a)’s general mandate and §

102(c)’s waiver provision apply only to the specific

2

Congressional priorities identified in § 102(b) .............................. 26

3

2. Plaintiff cannot show that § 102(c) waiver authority has

4

unambiguously expired .................................................................. 36

5

3. Plaintiff cannot show that § 102(c) unambiguously requires

that the Federal Register notice of a waiver determination

6

include detailed “findings”............................................................. 38

7

4. Plaintiffs cannot show that key statutory terms

8

unambiguously preclude the waiver determinations at issue here ................................................................................................. 41

9

IV. Plaintiffs’ Constitutional Claims Fail ......................................................... 52

10 A. The Waiver Provision Does Not Violate Article I § 1 ......................... 52
11 B. The Waiver Provision Does Not Violate Article I § 3 ......................... 57
12

13

C. The Waiver Provision Does Not Violate Article I § 7 ......................... 58

14

D. The Secretary’s Action Does Not Violate Article II § 3...................... 63

15

E. The Waiver Provision Does Not Violate Constitutional Provisions

Regarding Access to the Courts ........................................................... 65

16

F. The Waiver Provision Does Not Violate the Tenth Amendment ........ 70

17

V. Plaintiffs’ Claims Under Other Statutes Must Be Dismissed .................... 74 18

19 VI. Plaintiffs Are Not Entitled to the Remedies They Seek ............................. 77

20 CONCLUSION................................................................................................. 77

21 APPENDIX: 8 U.S.C. § 1103 Note (in relevant part)...................................... 79 22

23

24

25

26

27

28

Defs.’ Cross-Motion for Summary Judgment

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1

TABLE OF AUTHORITIES

2 Cases

3 Abdul-Akbar v. McKelvie, 4 239 F.3d 307 (3d Cir. 2001) ................................................................................... 67

5 Acree v. Republic of Iraq, 370 F.3d 41 (D.C. Cir. 2004) ........................................................................... 60, 61
6

7

Aguayo v. Jewell, 827 F.3d 1213 (9th Cir. 2016) .......................................................................... 10-11

8 Alfred L. Snapp & Son, Inc. v. Puerto Rico,

9 458 U.S. 592 (1982) ............................................................................................... 10

10 Ali v. Andress-Tobiasson, 11 No. 2:12-1571, 2013 WL 560508 (D. Nev. Feb. 11, 2013) ................................... 67

12 Am. Airlines, Inc. v. Herman, 176 F.3d 283 (5th Cir. 1999) ............................................................................ 26, 40
13

14

Am. Soc’y of Anesthesiologists v. Shalala, 90 F. Supp. 2d 973 (N.D. Ill. 2000) ....................................................................... 19

15 Aragon-Salazar v. Holder,

16 769 F.3d 699 (9th Cir. 2014) ............................................................................ 14, 33

17 Arizona v. United States, 18 567 U.S. 387 (2012) ............................................................................................... 71

19 Armstrong v. Exceptional Child Ctr., Inc.,

135 S. Ct. 1378 (2015) ........................................................................................... 64 20

21

Assiniboine & Sioux Tribes of Fort Peck India Reservation v. Bd. of Oil & Gas Conservation, 792 F.2d 782 (9th Cir. 1986) ............................................................... 23

22 Ball v. Rodgers,
23 492 F.3d 1094 (9th Cir. 2007) ................................................................................ 25

24 Barnhart v. Peabody Coal Co., 25 537 U.S. 149 (2003) ............................................................................................... 30

26 Bd. of Governors of Fed. Reserve Sys. v. MCorp Fin., Inc. 27 502 U.S. 32 (1991) ............................................................................... 17, 18, 19, 24

28

Defs.’ Cross-Motion for Summary Judgment

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1 BE & K Const. Co. v. NLRB, 536 U.S. 516 (2002) ............................................................................................... 66
2

3

Bedgood v. Mabus, No. 15-454, 2015 WL 3647933 (S.D. Cal. June 8, 2015) ...................................... 76

4 Block v. Community Nutrition Inst.,
5 467 U.S. 340 (1984) ............................................................................................... 11

6 Bowen v. Michigan Acad. of Family Physicians, 7 476 U.S. 667 (1986) ......................................................................................... 10, 11

8 Brem–Air Disposal v. Cohen, 9 156 F.3d 1002 (9th Cir. 1998) ................................................................................ 76 10 Cal. Cmtys. Against Toxics v. EPA,
688 F.3d 989 (9th Cir. 2012) .................................................................................. 77 11
Calif. Sportfishing Protection Alliance v. U.S. Bureau of Reclamation, 12 No. 15-912, 2015 WL 6167521 (E.D. Cal. Oct. 202015) ...................................... 24
13 City of Boerne v. Flores, 14 521 U.S. 507 (1997) ............................................................................................... 73

15 Clinton v. City of New York, 16 524 U.S. 417 (1998) ......................................................................................... 59, 62
17 Clinton v. Jones, 520 U.S. 681 (1997) ............................................................................................... 64
18 County of El Paso v. Chertoff,
19 No. 08-196, 2008 WL 4372693 (W.D. Tex. 2008) ......................................... passim
20 Ctr. for Biological Diversity v. Bureau of Land Mgmt., 21 833 F.3d 1136 (9th Cir. 2016) ................................................................................ 39

22 Ctr. for Biological Diversity v. Mattis, 23 868 F.3d 803 (9th Cir. 2017) .................................................................................. 56

24 Dalton v. Specter, 511 U.S. 462 (1994) ............................................................................................... 63
25 Dart v. United States,
26 848 F.2d 217 (D.C. Cir. 1988) ................................................................... 21, 22, 23

27 Davis v. Federal Election Comm'n, 28 554 U.S. 724 (2008) ................................................................................................. 9

Defs.’ Cross-Motion for Summary Judgment

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1 De Carreon v. Mukasey, No. 08-0501, 2008 WL 11336922 (S.D. Cal. Oct. 28, 2008) ................................ 13
2

3

Defenders of Wildlife v. Chertoff, 527 F. Supp. 2d 119 (D.D.C. 2007) ................................................................ passim

4 Dennis v. Sparks,
5 449 U.S. 24 (1980) ................................................................................................. 58

6 Dickson v. Secretary of Defense, 7 68 F.3d 1396 (D.C. Cir. 1995) ............................................................................... 41

8 Dubbs v. CIA, 9 866 F.2d 1114 (9th Cir. 1989) ................................................................................ 41 10 Duldulao v. INS,
90 F.3d 396 (9th Cir. 1996) .............................................................................. 10, 66 11
Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 12 498 F.3d 1031 (9th Cir. 2007) ................................................................................ 71
13 Estep v. United States, 14 327 U.S. 114 (1946) ............................................................................................... 11

15 Export Group v. Reef Indus., 16 Inc., 54 F.3d 1466 (9th Cir.1995) ........................................................................... 20
17 Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546 (2005) ................................................................................. 10, 66
18 Forest Guardians v. Kempthorne,
19 No. 06-2560, 2008 WL 11337359 (S.D. Cal. Apr. 1, 2008) .................................. 50
20 Forest Guardians v. U.S. Bureau of Reclamation, 21 462 F. Supp. 2d 1177 (D.N.M. 2006) .................................................................... 75

22 Franklin v. Massachusetts, 23 505 U.S. 788 (1992) ......................................................................................... 64, 65

24 Free Enterprise Fund v. v. Public Co. Accounting Bd., 561 U.S. 477 (2010) ................................................................................................ 64
25 Free Speech Clause in Legal Services Corp. v. Velazquez,
26 531 U.S. 533 (2001) ............................................................................................... 67

27 Friends of Animals v. Ashe, 28 51 F. Supp. 3d 77 (D.D.C. 2014) ........................................................................... 75

Defs.’ Cross-Motion for Summary Judgment

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1 FTC v. Tarriff, 584 F.3d 1088 (D.C. Cir. 2009) ............................................................................. 30
2

3

Gila River Indian Community v. United States, 729 F.3d 1139 (9th Cir. 2013) .......................................................................... 70-71

4 Gonzalez v. Oregon,
5 546 U.S. 243 (2006) ......................................................................................... 41, 74

6 Gonzalez v. Raich, 7 500 F.3d 850 (9th Cir. 2007) ............................................................................ 72, 74

8 Great Old Broads For Wilderness v. Kempthorne, 9 452 F. Supp. 2d 71 (D.D.C. 2006) ......................................................................... 39 10 Greater Detroit Resource Recovery Auth. v. EPA,
916 F.2d 317 (6th Cir. 1990) .................................................................................. 26 11
Griffith v. FLRA, 12 842 F.2d 487 (D.C. Cir. 1988) ................................................................... 26, 36, 44
13 Gunn v. Minton, 14 568 U.S. 251 (2013) ............................................................................................... 10

15 Hartford Cas. Ins. Co. v. FDIC, 16 21 F.3d 696 (5th Cir. 1994) .................................................................................... 69
17 Hata v. United States, 23 F.3d 230 (9th Cir. 1994) .................................................................................... 10
18 Haywood v. Drown,
19 556 U.S. 729 (2009) ............................................................................................... 68
20 Healy v. Ratta, 21 292 U.S. 263 (1934) ............................................................................................... 68

22 Heckler v. Chaney, 23 470 U.S. 821 (1985) ............................................................................................... 11

24 Herrera v. Allianceone Receivable Mgmt., Inc., No. 14-1844, 2016 WL 7048318 (S.D. Cal. Dec. 5, 2016) ................................... 42
25 Herrera-Castillo v. Holder,
26 573 F.3d 1004 (10th Cir. 2009) .............................................................................. 13

27 Hooks v. Ktsap Tenant Support Servs., Inc., 28 816 F.3d 550 (9th Cir. 2016) .................................................................................. 31

Defs.’ Cross-Motion for Summary Judgment

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1 Horizon Air Indus., Inc. v. Nat’l Mediation Bd., 232 F.3d 1126 (9th Cir. 2000) ................................................................................ 26
2

3

Hunt v. City of Los Angeles, 638 F.3d 703 (9th Cir. 2011) .................................................................................. 70

4 In re Nat’l Security Agency Telecomm. Records Litig.,
5 671 F.3d 881 (9th Cir. 2011) ...................................................................... 52, 56, 61

6 In re Workers’ Compensation Refund, 7 46 F.3d 813 (8th Cir. 1995) .................................................................................... 66

8 J.W. Hampton, Jr. Co. v. United States, 9 276 U.S. 394 (1928) ............................................................................................... 52 10 Kern Cnty. Farm Bureau v. Badgley,
No. 02-5376, 2002 WL 34236869 (E.D. Cal. Oct. 10, 2002) ................................ 75 11
Kerr v. Jewell, 12 836 F.3d 1048 (9th Cir. 2016) ................................................................................ 14
13 Klamath-Siskiyou Midlands Ctr. v. MacWhorter, 14 797 F.3d 645 (9th Cir. 2015) .................................................................................. 75

15 Knauff v. Shaughnessy, 16 338 U.S. 537 (1950) ............................................................................................... 56
17 Kucana v. Holder, 558 U.S. 233 (2010) ......................................................................................... 17, 23
18 Leedom v. Kyne,
19 358 U.S. 184 (1958) ........................................................................................ passim
20 Lindahl v. OPM, 21 470 U.S. 768 (1985) ......................................................................................... 22, 23

22 Logan v. U.S. Bank Nat’l Ass’n, 23 722 F.3d 1163 (9th Cir. 2013) ................................................................................ 25

24 Loving v. United States, 517 U.S. 748 (1996) ......................................................................................... 56, 58
25 Lugo-Miramontes v. Holder,
26 464 F. App’x 639 (9th Cir. 2011) ........................................................................... 13

27 Luna v. Greenlight Fin. Servs., 28 No. 13-623, 2013 WL 2120919 (S.D. Cal. May 15, 2013) ...................................... 8

Defs.’ Cross-Motion for Summary Judgment

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1 Maldonado v. Fasano, 67 F. Supp. 2d 1170 (S.D. Cal. 1999) ........................................................ 11, 19, 62
2

3

Marbled Murrelet v. Babbitt, 83 F.3d 1068 (9th Cir. 1996) .................................................................................. 75

4 McBryde v. Comm. to Review Cir. Council Conduct & Disability Orders,
5 264 F.3d 52 (D.C. Cir. 2001) ........................................................................... 22, 24

6 Michel v. United States, 7 No. 16-277, 2017 WL 3966827 (S.D. Cal. Sept. 8, 2017) ....................................... 8

8 Mir v. Kirchmeyer, 9 No. 12-2340, 2017 WL 4271892, at * (S.D. Cal. Sept. 26, 2017) ........................... 9 10 Miranda v. Anchondo,
684 F.3d 844 (9th Cir. 2012) ............................................................................ 11, 12 11
Mississippi v. Johnson, 12 71 U.S. 475 (1867) ................................................................................................. 65
13 Mistretta v. United States, 14 488 U.S. 361 (1989) ............................................................................................... 53

15 Moden v. U.S. Fish & Wildlife Serv., 16 281 F. Supp. 2d 1193 (D. Or. 2003) ....................................................................... 75
17 Molly-Butcher v. U.S. Dep’t of Commerce, 12 F.3d 249 (D.C. Cir. 1994) ................................................................................. 14
18 Medellin v. Texas,
19 552 U.S. 491 (2008) ............................................................................................... 63
20 Morrison v. Olson, 21 487 U.S. 654 (1988) ............................................................................................... 64

22 Moyle v. Dir., Office of Workers’ Compensation Programs, 23 147 F.3d 1116 (9th Cir. 1998) ................................................................................ 62

24 Munguia v. Frias, No. 07-1016, 2009 WL 3157482 (S.D. Cal. Sept. 24, 2009) ................................. 66
25 Nadler v. Civil Aeronautics Bd.,
26 657 F.2d 453 (D.C. Cir. 1981) ............................................................................... 23

27 Nat’l Fed’n of the Blind v. United Airlines, Inc., 28 813 F.3d 718 (9th Cir. 2013) .................................................................................. 71

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1 Nat’l Wildlife Fed’n v. Espy, 45 F.3d 1337 (9th Cir. 1995) .................................................................................. 77
2

3

Nevada v. Burford, 918 F.2d 854 (9th Cir. 1990) .................................................................................. 10

4 NLRB v. United Food & Commercial Workers Union,
5 484 U.S. 112 (1988) ............................................................................................... 16

6 Northstar Financial Advisors, Inc. v. Schwab Investments, 7 615 F.3d 1106 (9th Cir. 2010) ................................................................................ 33

8 Nunag-Tanedo v. East Baton Rouge Parish Sch. Bd., 9 711 F.3d 1136 (9th Cir. 2013) ................................................................................ 67 10 Nw. Forest Resource Council v. Glickman,
82 F.3d 825 (9th Cir. 1996) .............................................................................. 34, 35 11
Nyunt v. Broad. Bd. of Governors, 12 589 F.3d 445 (D.C. Cir. 2009) ......................................................................... 21, 26
13 Or. Nat’l Desert Ass'n v. U.S. Forest Serv., 14 465 F.3d 977 (9th Cir. 2006) .................................................................................. 14

15 Organized Village of Kake v. USDA, 16 795 F.3d 956 (9th Cir. 2015) ............................................................................ 40-41
17 Otsuka Pharm. Co. v. Burwell, No. 15-852, 2015 WL 1962240 (D. Md. Apr. 29, 2015) ....................................... 30
18 Owens v. Hills,
19 450 F. Supp. 218 (N.D. Ill. 1978) .......................................................................... 22
20 Pacific Maritime Ass’n v. NLRB, 21 827 F.3d 1203 (9th Cir. 2016) .................................................................... 24, 25, 48

22 Pacific Mut. Life Ins. Co. v. Am. Guaranty Life Ins. Co., 23 722 F.2d 1498 (9th Cir. 1984) ................................................................................ 32

24 Pinnacle Armor, Inc. v. United States, 648 F.3d 708 (9th Cir. 2011) ....................................................................... 14, 18, 21
25 Planned Parenthood of Idaho, Inc. v. Wasden,
26 376 F.3d 908 (9th Cir. 2004) .................................................................................. 32

27 Ralpho v. Bell, 28 569 F.2d 607 (D.C. Cir. 1977) ............................................................................... 11

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1 Ringgold-Lockhart v. Cnty. of Los Angeles, 761 F.3d 1057 ......................................................................................................... 66
2

3

Rodriguez v. Donovan, 769 F.3d 1344 (9th Cir. 1985) ................................................................................ 11

4 Roller v. Gunn,
5 107 F.3d 227 (4th Cir.1997) ................................................................................... 67

6 S. Cal. Edison Co. v. Lynch, 7 307 F.3d 794 (9th Cir. 2002) .................................................................................. 71

8 San Luis Obispo Mothers for Peace v. U.S. Nuclear Regulatory Comm’n, 9 789 F.2d 26 (D.C. Cir. 1986) (en banc) ................................................................. 50 10 Sanchez v. Johnson,
416 F.3d 1051 (9th Cir. 2005) ................................................................................ 25 11
Santiago Salgado v. Garcia, 12 384 F.3d 769 (9th Cir. 2004) ............................................................................ 14, 15
13 Save Our Heritage v. Gonzalez, 14 533 F. Supp. 2d 58 (D.D.C. 2008) ................................................... 5, 30, 52, 53, 54

15 Save Our Valley v. Sound Transit, 16 335 F.3d 932 (9th Cir. 2003) ............................................................................ 24-25
17 Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384 (1951) ............................................................................................... 35
18 Shelby Cnty., Ala. v. Holder,
19 133 S. Ct. 2612 (2013) ..................................................................................... 72, 73
20 Sidney Coal Co. v. SSA, 21 427 F.3d 336 (6th Cir. 2005) .................................................................................. 30

22 Sierra Club v. Ashcroft, 23 No. 04-272, 2005 U.S. Dist. LEXIS 44244 (S.D. Cal. Dec. 13, 2005) .......... passim

24 Sierra Forest Legacy v. Sherman, 951 F. Supp. 2d 1100 (E.D. Cal. 2013) .................................................................. 77
25 Smith v. Fed. Reserve Bank of N.Y.,
26 280 F. Supp. 2d 314 (S.D.N.Y. 2003) .................................................................... 62

27 Spencer Enterprises, Inc. v. United States, 28 345 F.3d 683 (9th Cir. 2003) ...................................................................... 12, 20, 39

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1 Staacke v. U.S. Sec’y of Labor, 841 F.2d 278 (9th Cir. 1988) .......................................................... 22, 25-26, 26, 40
2

3

State of Alaska v. Nat'l Parks & Conservation Ass'n, Inc., 981 F.2d 1259 (9th Cir. 1992) ................................................................................ 10

4 Student Loan Fund of Idaho, Inc. v. U.S. Dep’t of Educ.,
5 272 F.3d 1155 (9th Cir. 2001) ................................................................................ 35

6 Sw. Ctr. for Biological Diversity v. U.S. Bureau of Reclamation, 7 143 F.3d 515 (9th Cir. 1998) ............................................................................ 75, 76

8 Switchmen's Union v. Nat’l Mediation Bd., 9 320 U.S. 297 (1946) ................................................................................... 11, 17, 24 10 Tafflin v. Levitt,
493 U.S. 455 (1990) ............................................................................................... 68 11
Tashima v. Admin. Office of U.S. Courts, 12 719 F. Supp. 881 (C.D. Cal. 1989) ......................................................................... 41
13 Tennessee v. Lane, 14 541 U.S. 509 (2004) ......................................................................................... 73, 74

15 Texas Border Coal. v. Napolitano, 16 614 F. Supp. 2d 54, (D.D.C. 2009) ........................................................................ 51
17 Touby v. United States, 500 U.S. 160 (1991) ......................................................................................... 55, 58
18 Town of Chester v. Laroe Estates, Inc.,
19 137 S. Ct. 1645 (2017) ............................................................................................. 9
20 Trans Alaska Pipeline Rate Cases, 21 436 U.S. 631 (1978) ............................................................................................... 23

22 United States v. Bozarov, 23 974 F.2d 1037 (9th Cir. 1992) .................................................................... 20, 21, 57

24 United States v. Geiger, 263 F.3d 1034 (9th Cir. 2001) ................................................................................ 71
25 United States v. Hernandez-Guerrero,
26 963 F. Supp. 933 (S.D. Cal. 1997) ......................................................................... 72

27 United States v. Hernandez-Guerrero, 28 147 F.3d 1075 (9th Cir. 1998) ................................................................................ 72

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1 United States v. JDT, 762 F.3d 984 (9th Cir. 2014) .................................................................................. 58
2

3

United States v. Jones, 231 F.3d 508 (9th Cir. 2000) .................................................................................. 70

4 United States v. Meek
5 366 F.3d 705 (9th Cir. 2004) .................................................................................. 35

6 United States v. Nixon, 7 418 U.S. 683 (1974) ............................................................................................... 58

8 United States v. Scampini, 9 911 F.2d 350 (9th Cir. 1990) .................................................................................. 59 10 United States v. Spiegel,
995 F.2d 138 (9th Cir. 1993) ............................................................................ 19, 23 11
Upper Deck Int’l B.V. v. Upper Deck Co., 12 No. 11-1741, 2012 WL 1713453 (S.D. Cal. May 15, 2012) .................................. 13
13 Washam v. Rabine, 14 No. 3:13-2433, 2013 WL 1849233 (S.D. Cal. May 1, 2013) .............................. 8-9

15 Water Keeper Alliance v. U.S. Dep't of Def., 16 271 F.3d 21 (1st Cir. 2001) .................................................................................... 75
17 White v. Colorado, 157 F.3d 1226 (10th Cir. 1998) .............................................................................. 67
18 Whitman v. Am. Trucking Ass’ns,
19 531 U.S. 457 (2001) ............................................................................................... 55
20 Wilbur v. Locke, 21 423 F.3d 1101 (9th Cir. 2005) ................................................................................ 67

22 Wilkinson v. Austin, 23 545 U.S. 209 (2005) ............................................................................................... 69

24 Wilson v. Iseminger, 185 U.S. 55 (1902) ................................................................................................. 69
25 Youngstown Sheet & Tube Co. v. Sawyer,
26 343 U.S. 579 (1952) ............................................................................................... 63

27 Zivotofsky v. Kerry, 28 135 S. Ct. 2076 (2015) ........................................................................................... 56

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1 2 Constitutional Provisions
Art. I § 1 ........................................................................................................................ 52 3 Art. I § 2 ...................................................................................................................... 57 4 Art. I § 3 ...................................................................................................................... 58
5 Art. II § 3 ..................................................................................................................... 63

6 Art. III ............................................................................................................. 65, 66, 68

7 1st Amend ............................................................................................................. 65, 66
8 5th Amend ....................................................................................................... 65, 66, 69 9 10th Amend ................................................................................................................. 70
14th Amend ................................................................................................................. 66 10

11 Statutes
12 5 U.S.C. § 701 ........................................................................................... 11, 14, 39, 57 13 6 U.S.C. § 202 ............................................................................................................... 2
8 U.S.C. § 1103 ..................................................................................................... 31, 32 14 8 U.S.C. § 1182 ........................................................................................................... 13 15 8 U.S.C. § 1226a ......................................................................................................... 13
16 8 U.S.C. § 1443 ........................................................................................................... 29

17 8 U.S.C. § 1701 ............................................................................................................. 2

18 8 U.S.C § 1103 .............................................................................................................. 2
19 12 U.S.C. § 1818 ................................................................................................... 19, 20 20 16 U.S.C. § 1540 ................................................................................................... 75, 76
16 U.S.C. § 1451 ........................................................................................................... 6 21
16 U.S.C. § 1531 ........................................................................................................... 6 22 22 U.S.C. § 6450 ......................................................................................................... 13 23 25 U.S.C. § 3406 ......................................................................................................... 61

24 28 U.S.C. § 1359 ......................................................................................................... 13

25 28 U.S.C. § 1331 ......................................................................................................... 10
26 33 U.S.C. § 1319 ......................................................................................................... 58 27 33 U.S.C. § 2326 ......................................................................................................... 29
42 U.S.C. § 1983 ................................................................................................... 24, 25 28

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1 42 U.S.C. § 4321 ........................................................................................................... 6
2 42 U.S.C. § 18352 ....................................................................................................... 29 3 50 U.S.C. § 1885a ....................................................................................................... 61
50 U.S.C. app. § 2412 ................................................................................................. 22 4
Pub. L. No. 104-208, Div. C, Title I § 102, 110 Stat. 3009-554 (Sept. 30, 1996) passim 5 Pub. L. No. 105-292, § 410, 112 Stat. 2787 (Oct. 27, 1998) .......................................13 6 Pub. L. No. 107-296, 116 Stat. 2135 (Nov. 25, 2002)....................................................3
7 Pub. L. No. 109-13, Div. B, Title I §102, 119 Stat. 231 (May 11, 2005) ................2, 33

8 Pub. L. No. 109-171, § 5107(a)(2), 120 Stat. 42 (Feb. 6, 2006) ..................................61
9 Pub. L. No. 109-367, § 3, 120 Stat. 2638 (Oct. 26, 2006) .............................2, 3, 29, 45
10 Pub. L. No. 110-161, Div. E, Title V § 564, 121 Stat. 2090 (Dec. 26, 2007) .....2, 3, 29 Pub. L. No. 114-4, 129 Stat. 39, 42 (Mar. 4, 2015) ............................................... 36-37
11 Pub. L. No. 115-31, Div. F, Title VI, 131 Stat. 135 (May 5, 2017) ........................ 6, 36
12 Fed. R. Civ. P. 56 .......................................................................................................... 8 13
14 Regulations 50 C.F.R. § 402.02 ...................................................................................................... 76
15 70 Fed. Reg. 55622 (Sept. 22, 2005) ............................................................................ 5
16 72 Fed. Reg. 2535 (Jan. 19, 2007) ................................................................................ 5 17 72 Fed. Reg. 60870 (Oct. 26, 2007) .............................................................................. 5
18 73 Fed. Reg. 19077 (Apr. 8, 2008) ............................................................................... 5

19 73 Fed. Reg. 19078 (Apr. 8, 2008) ............................................................................... 5
20 82 Fed. Reg. 8793 (Jan. 25, 2017) ................................................................................ 2 21 82 Fed. Reg. 35984 (Aug. 2, 2017) ...................................................................... passim
82 Fed. Reg. 42829 (Sept. 12, 2017) ....................................................................passim 22

23 Legislative Materials

24 H.R. Rep. 104-828 (Sept. 24, 1996) (Conf. Rep.) .................................................... 4, 43
25 H.R. Rep. 109-72 (May 3, 2005) (Conf. Rep.) ......................................................passim H.R. 1268 (109th Cong.) (engrossed in House, Mar. 16, 2005).........................4, 15, 33
26 142 Cong. Rec. H11076 (Sept. 25, 1996) ..................................................................... 35
27 150 Cong. Rec. H8899 (Oct. 8, 2004) .......................................................................... 46
28

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1 151 Cong. Rec. H453-471 (Feb. 9, 2005)...................................................16, 34, 35, 47
2 151 Cong. Rec. H553-559 (Feb. 10, 2005).......................................4, 15, 16, 35, 38, 46
3 151 Cong. Rec. E247 (Feb. 15, 2005) .......................................................................... 15 152 Cong. Rec. S9870 (Sept. 21, 2006)..................................................................43, 47
4 Walls & Waivers: Expedited Construction of the Southern Border Wall and
5 Collateral Impacts to Communities and the Environment: Joint Oversight
6 Field Hearing Before Subcommittees to H. Comm. on Natural Resources, 110th Cong. (2008) ..................................................................................7, 16, 38, 44
7 Cong. Research Serv., RL33659, Border Security: Barriers Along the U.S. Int’l 8 Border (Mar. 16, 2009) ............................................................................................. 47

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

TABLE OF EXHIBITS

2

Congressional Documents (attached at ECF No. 18-2)

3

1. H.R. Rep. 104-828 (Sept. 24, 1996) (Conf. Rep.)

4

2. H.R. Rep. 109-72 (May 3, 2005) (Conf. Rep.)

5

3. H.R. 1268 (109th Cong.) (engrossed in House, Mar. 16, 2005)

6

4. 142 Cong. Rec. H11076 (Sept. 25, 1996)

7

5. 150 Cong. Rec. H8899 (Oct. 8, 2004)

6. 151 Cong. Rec. H453-471 (Feb. 9, 2005)

8

7. 151 Cong. Rec. H553-559 (Feb. 10, 2005)

9

8. 151 Cong. Rec. E243-47 (Feb. 15, 2005)

10

9. 152 Cong. Rec. S9870 (Sept. 21, 2006)

11

10. Walls & Waivers: Expedited Construction of the Southern Border Wall

12

and Collateral Impacts to Communities and the Environment: Joint

Oversight Field Hearing Before Subcommittees to H. Comm. on Natural

13

Resources, 110th Cong. (2008) (excerpts)

14

11. Cong. Research Serv., RL33659, Border Security: Barriers Along the

15

U.S. Int’l Border (Mar. 16, 2009)

16 Customs & Border Protection Documents (attached at ECF No. 18-2, except

17

as noted)

18

12. Solicitation No. HSBP1017R0022 (as amended, Apr. 1, 2017) (link)

19

(excerpts)

13. Solicitation No. HSBP1017R0023 (as amended, Apr. 1, 2017) (link)

20

(excerpts)

21

14. Memorandum, Construction and Evaluation of Border Wall Prototypes,

22

U.S. Border Patrol, San Diego Sector, California (Sept. 25, 2017)

23

15. Press Release, Construction Begin on Wall Prototypes (Sept. 26, 2017)

(link)

24

16. Press Release, CBP Awards Contract for “Other Materials” Border Wall

25

Prototypes (Sept. 7, 2017) (link)

26

17. Press Release, CBP Awards Contracts for Border Wall Prototypes (Aug.

27

30, 2017) (link)

18. U.S. Border Patrol, Sector Profile – Fiscal Year 2016 (link) 28

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1

19. CBP Finding of No Significant Impact for Infrastructure (Nov. 19, 2003)

2

20. Press Release, CBP Completes Construction of Border Wall Prototypes

(Oct. 26, 2017) (link) (attached to this filing)

3

21. CBP, Chula Vista Station (Mar. 11, 2014) (link) (attached to this filing)

4

22. CBP, Brown Field Station (Mar. 11, 2014) (link) (attached to this filing)

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
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1

INTRODUCTION

2

Congress has repeatedly identified the construction of border infrastructure to

3 prevent illegal entry of people and contraband as a significant priority. In addition to

4 the Executive Branch’s inherent authority over immigration policy, foreign affairs, and

5 national security, Congress has called on the U.S. Department of Homeland Security

6 (“DHS”) to construct physical barriers and roads along the border to deter illegal

7 crossings in areas of high illegal entry. See Illegal Immigration Reform and Immigrant

8 Responsibility Act of 1996 (“IIRIRA” or “Act”), Pub. L. No. 104-208, Div. C, Title I

9 § 102, 110 Stat. 3009-554 (Sept. 30, 1996), as amended. In order to speed construction

10 of these border infrastructure projects, Congress gave the DHS Secretary specific

11 authority to waive any legal requirement necessary to ensure expeditious construction,

12 and strictly limited judicial review of such determinations—only constitutional

13 challenges are permitted and the only appellate review is a petition of certiorari to the

14 Supreme Court. The Act has been repeatedly upheld in the face of legal challenges.

15

In three suits, now consolidated, Plaintiffs challenge § 102 of the IIRIRA and two

16 waivers issued under its authority. Plaintiffs collectively raise eight different

17 constitutional theories, which boil down to two ideas: (1) that Congress may not

18 delegate authority to waive other laws, and (2) that Congress may not limit judicial

19 review of such waiver decisions. Such theories have no credible basis in constitutional

20 jurisprudence. Plaintiffs also attempt to evade § 102’s bar on non-constitutional claims,

21 arguing that the Court retains jurisdiction to determine whether the DHS Secretary acted

22 without statutory authority. This notion, however, cannot be squared with the plain text

23 of the statute or the Supreme Court’s explanations of the limited scope of such ultra

24 vires review. In any event, even if such review were permitted here, Plaintiffs have not

25 carried their heavy burden under this extraordinarily deferential standard, which

26 requires them to establish a clear violation of unambiguous statutory requirements.

27 Accordingly, Defendants are entitled to summary judgment, and Plaintiffs’ motions for

28

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1 summary judgment should be denied.

2

BACKGROUND

3 I. STATUTORY FRAMEWORK

4

Among its responsibilities, DHS is responsible for border security and the

5 detection and prevention of illegal entry into the United States. See, e.g., 6 U.S.C.

6 § 202(a)(1)-(2). Congress has ordered DHS to achieve and maintain operational 7 control of the international land border. See Secure Fence Act of 2006, Public Law 8 109-367, § 2(a), 120 Stat. 2638 (Oct. 26, 2006) (8 U.S.C. § 1701 note). “Operational 9 control” means “prevention of all unlawful entries into the United States, including

10 entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and

11 other contraband.” Id. § 2(b). Consistent with that mandate, the President has 12 directed DHS to take immediate steps to prevent all unlawful entries into the United 13 States, including the immediate construction of physical infrastructure to prevent 14 illegal entry. See Exec. Order 13767 §§ 2(a), 4(a), 82 Fed. Reg. 8793 (Jan. 25, 2017).

15

Among the statutory authorities provided to DHS to carry out its border security

16 mission is the IIRIRA. See Pub. L. No. 104-208, Div. C, Title I § 102, 110 Stat. 300917 554 (Sept. 30, 1996). Codified at 8 U.S.C § 1103 note (and included as an appendix 18 at the end of this memorandum), IIRIRA § 102 has been amended several times. See 19 Dep’t of Homeland Security Appropriations Act, 2008, Pub. L. No. 110-161, Div. E,

20 Title V § 564, 121 Stat. 2090 (Dec. 26, 2007); Secure Fence Act of 2006, Pub. L. No.

21 109-367, § 3, 120 Stat. 2638 (Oct. 26, 2006); REAL ID Act of 2005, Pub. L. No. 10922 13, Div. B, Title I §102, 119 Stat. 231, 302, 306 (May 11, 2005). The IIRIRA directs 23 the Secretary of Homeland Security to “take such actions as may be necessary to 24 install additional physical barriers and roads (including the removal of obstacles to

25 detection of illegal entrants) in the vicinity of the United States border to deter illegal

26 crossings in areas of high illegal entry into the United States.” Pub. L. No. 104-208, 27

28

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1 Div. C., Title I § 102(a), as amended.1

2

In § 102(b), Congress provided certain requirements for implementing the

3 broad mandate laid out in § 102(a). These requirements have varied over the years.

4 For example, in 1996, Congress specified that, in “carrying out subsection (a), the

5 [agency] shall provide for the construction . . . of second and third fences, in addition

6 to the existing reinforced fence, and for roads between the fences” in a 14-mile section

7 near San Diego. Pub. L. No. 104-208, Div. C., Title I § 102(b)(1). In 2006, Congress

8 struck the reference to San Diego and required construction of “at least 2 layers of

9 reinforced fencing, [and] the installation of additional physical barriers, roads, lights,

10 cameras, and sensors” in five specified locations along the southern border, with

11 deadlines for certain of the projects. Pub. L. No. 109-367, § 3. In the most recent

12 amendment, Congress removed the specifications set out in 2006 and instead required

13 “construct[ion of] reinforced fencing along not less than 700 miles of the southwest

14 border” but gave the Secretary discretion to determine “where fencing would be most

15 practical and effective” with the goal “to gain operational control of the southwest

16 border.” Pub. L. No. 110-161, Div. E, Title V § 564; see also IIRIRA § 102(b)(1)(D)

17 (as amended) (stating that the Secretary is free to determine that the use or placement

18 of “fencing, physical barriers, roads, lighting, cameras, and sensors in a particular

19 location” is not “the most appropriate means to achieve and maintain operational

20 control over the international border” at that location).

21

Section 102(c) seeks to ensure expeditious construction pursuant to the mandate

22 laid out in § 102(a) in two ways. First, it permits waiver of legal impediments:

23

Notwithstanding any other provision of law, the Secretary of Homeland

Security shall have the authority to waive all legal requirements such

24

Secretary, in such Secretary's sole discretion, determines necessary to

25

26 1 In 1996, responsibility for border enforcement lay with the Attorney General. The Homeland Security Act of 2002, Pub. L. No. 107-296, created DHS and transferred
27 border enforcement authority to it. In 2005, IIRIRA § 102 was amended to refer to
28 the DHS Secretary. See H.R. Rep. 109-72 at 171 (May 3, 2005) (Conf. Rep.).

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1

ensure expeditious construction of the barriers and roads under this

section. Any such decision by the Secretary shall be effective upon

2

being published in the Federal Register.

3 Id. § 102(c)(1). This provision had originally been limited to the Endangered Species

4 Act (“ESA”) and the National Environmental Policy Act (“NEPA”), see Pub. L. No.

5 104-208, Div. C, Title I § 102(c), but the REAL ID Act expanded it to its current

6 breadth. See Ex. 2, H.R. Rep. 109-72, at 171-72 (May 3, 2005) (Conf. Rep.), ECF

7 No. 18-2 (explaining “Congress’ intent that the Secretary’s discretionary waiver

8 authority extends to any local, state or federal statute, regulation, or administrative

9 order that could impede expeditious construction of border security infrastructure”);

10 see also Ex. 1, H.R. Rep. 104-828, at 200 (Sept. 24, 1996) (Conf. Rep.), ECF No. 18-

11 2 (explaining that the original waiver of two environmental laws was intended “to

12 facilitate a uniform construction of necessary fences and roads”).

13

Second, § 102(c) provides for limited and streamlined judicial review of the

14 Secretary’s exercise of this waiver authority. Federal district courts have “exclusive

15 jurisdiction” to hear such claims, and the only “cause of action or claim” that may be

16 brought is one “alleging a violation of the Constitution of the United States” that is

17 filed within sixty days of the Secretary’s action. Id. § 102(c)(2)(A)-(B). The only

18 appellate review is a certiorari petition to the U.S. Supreme Court. Id. § 102(c)(2)(C).

19 This provision was adopted by the conference committee for the appropriations bill of

20 which the REAL ID Act was a part. The House bill would have entirely barred

21 judicial review, see Ex. 3, 109th Cong., H.R. 1268, Div. B § 102 (engrossed in House,

22 Mar. 16, 2005), ECF No. 18-2, but some had expressed concern about the

23 constitutionality of such a total bar on review. See, e.g., Ex. 7, 151 Cong. Rec. H553,

24 556-57 (Feb. 10, 2005), ECF No. 18-2 (statement of Cong. Farr) (introducing

25 Congressional Research Service letter observing that Congress does not clearly have

26 “authority to prevent courts . . . from addressing and remedying issues arising under

27 the United States Constitution”). Ultimately, the conference report explained that

28

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1 Congress was providing “federal judicial review for claims alleging that the actions or

2 decisions of the Secretary violate the United States Constitution,” and that the strict

3 limits on judicial review reflected the “Conferees’ intent [] to ensure that judicial

4 review of actions or decisions of the Secretary not delay the expeditious construction

5 of border security infrastructure, thereby defeating the purpose of the Secretary’s

6 waiver.” H.R. Rep. 109-72 at 172.

7 II. THE SECRETARY’S EXERCISE OF WAIVER AUTHORITY

8

Pursuant to the IIRIRA, the Secretary has repeatedly issued waiver

9 determinations as necessary to ensure expeditious construction of barriers and roads

10 along the border. See 73 Fed. Reg. 19078 (Apr. 8, 2008); 73 Fed. Reg. 19077 (Apr. 8,

11 2008); 72 Fed. Reg. 60870 (Oct. 26, 2007); 72 Fed. Reg. 2535 (Jan. 19, 2007); 70

12 Fed. Reg. 55622 (Sept. 22, 2005). Every judicial challenge to these determinations

13 has been dismissed. See County of El Paso v. Chertoff, No. 08-196, 2008 WL

14 4372693 (W.D. Tex. 2008), cert. denied, 557 U.S. 915 (2009); Save Our Heritage v.

15 Gonzalez, 533 F. Supp. 2d 58 (D.D.C. 2008); Defenders of Wildlife v. Chertoff, 527 F.

16 Supp. 2d 119 (D.D.C. 2007), cert. denied, 554 U.S. 918 (2008); Sierra Club v.

17 Ashcroft, No. 04-272, 2005 U.S. Dist. LEXIS 44244 (S.D. Cal. Dec. 13, 2005).

18

On August 2 and September 12, 2017, DHS published two additional waiver

19 determinations under the IIRIRA. The first waiver determination concerned a fifteen-

20 mile stretch of border in the U.S. Border Patrol’s San Diego Sector. See 82 Fed. Reg.

21 35984 (Aug. 2, 2017) (“San Diego Waiver”). The second concerned a three-mile

22 stretch of border in the U.S. Border Patrol’s El Centro Sector near Calexico,

23 California. See 82 Fed. Reg. 42829 (Sept. 12, 2017) (“Calexico Waiver”). For each

24 waiver, the Secretary (or Acting Secretary) made three factual determinations:

25

 that the project area “is an area of high illegal entry,” 82 Fed. Reg. at

26

35985, 42830;

 that there is “a need to construct physical barriers and roads . . . in the

27

vicinity of the border of the United States to deter illegal crossings in this

28

Project Area,” id. at 35985, 42830;

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1

 that exercise of waiver authority under the IIRIRA was necessary “to

2

ensure the expeditious construction of the barriers and roads in the Project Area,” id. at 35985, 42830.

3

Accordingly, the Secretary announced the waiver of certain laws “with respect to the 4

construction of roads and physical barriers . . . in the Project Area.” 82 Fed. Reg. at 5

35985, 42830. As relevant here, the waived laws include NEPA, 42 U.S.C. §§ 4321 6

et seq., the ESA, 16 U.S.C. §§ 1531 et seq., and (for the San Diego Waiver) the 7

Coastal Zone Management Act (“CZMA”), 16 U.S.C. §§ 1451 et seq., along with “all 8

federal, state, or other laws, regulations, and legal requirements of, deriving from, or 9

related to the subject of, the [listed] statutes.” 82 Fed. Reg. at 35985, 42830. 10

Construction has been completed for one project conducted pursuant to the San 11

Diego Waiver—border wall prototypes built on an approximately two acre plot at the 12

eastern end of the secondary barrier near San Diego. The border wall prototypes are 13

intended both to deter illegal entry at that location and to assist DHS in evaluating 14

various design features for inclusion in a border wall standard to be used in future 15

construction. 82 Fed. Reg. at 35985; see also Exs. 12, 13, Solicitation Nos. 16

HSBP1017R0022, HSBP1017R0023 (as amended Apr. 1, 2017), ECF No. 18-2. 17

Construction for this project began on September 26, 2017, and was completed on 18

October 26, 2017 as scheduled. See Press Release (Oct. 26, 2017) (link) (attached as 19

Ex. 20); Ex. 15, Press Release (Sept. 26, 2017) (link), ECF No. 18-2. 20

The only other projects that will be conducted pursuant to these waiver 21

determinations are currently in the contracting process. These projects involve 22

replacement of the existing primary fencing near San Diego and Calexico, which was 23

primarily constructed in the early 1990s using a design that is “no longer optimal for 24

Border Patrol operations.” 82 Fed. Reg. at 35984-85, 42830. These project will rely 25

on existing appropriations. See Consolidated Appropriations Act, 2017, Pub. L. No. 26

115-31, Div. F, Title VI, 131 Stat. 135, 434 (May 5, 2017) (appropriating $341 27

million “to replace approximately 40 miles of existing primary pedestrian and vehicle 28

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1 border fencing along the southwest border . . . and to add gates to existing barriers”

2 and $77 million “for new border road construction”). For the Calexico project, a

3 contract was awarded in November 2017, and construction is expected to begin no

4 earlier than February 12, 2018. For the San Diego project, contract proposals have

5 been solicited, but no contract has been awarded, and construction is not expected to

6 begin until May 2018.

7

Even where the Secretary has waived environmental and other laws, U.S.

8 Customs and Border Protection (“CBP”) still consults with relevant stakeholders

9 pursuant to § 102(b)(1)(C). As CBP explained at a congressional hearing, it does not

10 “turn[] its back on environmental stewardship or continued consultation with

11 stakeholders.” Ex. 10, Walls & Waivers: Expedited Construction of the Southern

12 Border Wall and Collateral Impacts to Communities and the Environment: Joint

13 Oversight Field Hearing Before Subcommittees to H. Comm. on Natural Resources

14 (hereinafter “Walls & Waivers Hearing”), 110th Cong. 25 (2008), ECF No. 18-2

15 (statement of Ronald D. Vitiello, CBP Chief Patrol Officer, Rio Grande Valley

16 Sector); see also id. at 19 (statement of Rick Shultz, Nat’l Borderland Coordinator,

17 U.S. Dep’t of the Interior (“DOI”)) (explaining that when the DHS Secretary issued

18 two waivers “he reaffirmed DHS’s commitment to environmental stewardship” and

19 that “[t]his commitment, as it applies to DOI-administered lands and programs,

20 included mitigation funding up to $50 million for threatened and endangered

21 species”). For example, in connection with the prototypes project, CBP consulted

22 with relevant stakeholders, including the U.S. Fish and Wildlife Service. It also

23 conducted site surveys for environmental and endangered species concerns, and

24 required the contractors to comply with best practices designed to mitigate any

25 environmental harm. See Ex. 14, Memorandum, Construction and Evaluation of

26 Border Wall Prototypes, U.S. Border Patrol, San Diego Sector, California (Sept. 25,

27 2017), ECF No. 18-2. Similarly, for the replacement projects covered by the waivers,

28

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1 CBS has conducted resource surveys, is preparing environmental reports and analyses,

2 and has had will continue to engage with stakeholders prior to construction.

3 III. PROCEDURAL HISTORY

4

On September 6, 2017, the Center for Biological Diversity (“the Center”)

5 amended a pending suit to challenge the San Diego Waiver. See 2d Am. Compl., Ctr.

6 for Biological Diversity v. U.S. Dep’t of Homeland Security, No. 3:17-cv-1215 (S.D.

7 Cal.). Shortly thereafter, the Defenders of Wildlife, Sierra Club, and Animal Legal

8 Defense Fund (collectively “Coalition Plaintiffs”) filed suit, challenging both waivers.

9 See Defenders of Wildlife v. Duke, No. 3:17-cv-1873 (Sept. 14, 2017). Finally, the

10 State of California and the California Coastal Commission (collectively “California”)

11 sued to challenge both waivers. California v. United States, No. 3:17-cv-1911 (Sept.

12 20, 2017). Pursuant to the parties’ joint motion, on October 24, 2017, the Court

13 consolidated the cases, set aside answer and discovery obligations, and set a briefing

14 schedule for cross-motions for summary judgment. See ECF No. 22.

15

ARGUMENT

16 I. STANDARD OF REVIEW

17

Summary judgment is appropriate on a showing “that there is no genuine issue

18 as to any material fact and that the moving party is entitled to judgment as a matter of

19 law.” Fed. R. Civ. P. 56(c). “If the non-moving party fails to make a sufficient

20 showing of an element of its case, the moving party is entitled to judgment as a matter

21 of law.” Michel v. United States, No. 16-277, 2017 WL 3966827, at *6 (S.D. Cal.

22 Sept. 8, 2017) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). “[A]

23 federal court cannot reach the merits of any dispute until it confirms that it retains

24 subject matter jurisdiction to adjudicate the issues presented.” Luna v. Greenlight Fin.

25 Servs., No. 13-623, 2013 WL 2120919, at *1 (S.D. Cal. May 15, 2013) (citing Steel

26 Co. v. Citizens for a Better Environ., 523 U.S. 83, 94–95 (1998)). Plaintiffs have the

27 burden to establish jurisdiction. See Washam v. Rabine, No. 3:13-2433, 2013 WL

28

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1 1849233, at *1 (S.D. Cal. May 1, 2013). “[W]hen parties submit cross-motions for

2 summary judgment, each motion must be considered on its merits.” Mir v.

3 Kirchmeyer, No. 12-2340, 2017 WL 4271892, at * (S.D. Cal. Sept. 26, 2017)

4 (quotation marks omitted).2

5 II. CALIFORNIA HAS NOT CARRIED ITS BURDEN TO ESTABLISH STANDING
6 Because Plaintiffs here raise overlapping but often distinct claims which could
7 8 be subject to distinct relief, each set of Plaintiffs must establish their standing for the 9 Court to have jurisdiction over any claims unique to them. See Town of Chester v.
Laroe Estates, Inc., 137 S. Ct. 1645, 1651 (2017) (holding that “when there are 10
multiple plaintiffs . . . . [a]t least one plaintiff must have standing to seek each form of 11
relief requested in the complaint”); Davis v. Federal Election Comm'n, 554 U.S. 724, 12 13 734 (2008) (“[A] plaintiff must demonstrate standing for each claim he seeks to press 14 and for each form of relief that is sought.”). In particular, California has not carried
its burden to establish standing as to each of its many claims. California has not tied 15
its standing theories to each claim. And three of its standing theories are dubious at 16
best: claiming “injury to California’s tourism economy from the ‘chilling effect’ on 17
California tourism from Mexico,” “infring[ment] upon California’s procedural and 18 19 sovereign right in creating and enforcing its own laws, and California’s alleged
interest in “receiving the benefits afforded to it under NEPA and the CZMA.” Cal. 20
Br. at 14. The first theory suffers from a traceability problem because California has 21
not established that such effects on legal travel would be caused by measures taken 22 23 along the border to prevent illegal entry. The second theory fails to establish an injury 24 or causation because California identifies no state law that it would be prevented from
enforcing. And for the first and third theories, it appears that California is asserting 25
not its own interests but those of its citizens. This Circuit has repeatedly refused to 26

27 2 Hereinafter, internal quotation marks, alterations, and citations are omitted from 28 quotations unless otherwise noted.

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1 permit a state to assert an interest brought qua parens patriae against the United

2 States. See State of Alaska v. Nat'l Parks & Conservation Ass'n, Inc., 981 F.2d 1259

3 (9th Cir. 1992); Nevada v. Burford, 918 F.2d 854, 858 (9th Cir. 1990). The Supreme

4 Court has clearly stated that with respect to the citizens’ rights in relation to the

5 federal government, “it is the United States, and not the State, which represents them

6 as parens patriae.” Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 610

7 n.16 (1982).

8 III. 9 10

PLAINTIFFS’ NON-CONSTITUTIONAL CLAIMS REGARDING THE WAIVER DECISIONS MUST BE DISMISSED
A. The Court Lacks Jurisdiction to Consider Plaintiffs’ NonConstitutional Claims Regarding the Waiver Decisions

11

It is axiomatic that federal courts “are courts of limited jurisdiction possessing

12 only that power authorized by Constitution and statute.” Gunn v. Minton, 568 U.S.

13 251, 256 (2013). Accordingly, “district courts may not exercise jurisdiction absent a

14 statutory basis.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552

15 (2005); see also Duldulao v. INS, 90 F.3d 396, 400 (9th Cir. 1996) (“Congress has the

16 constitutional authority to define the jurisdiction of the lower federal courts.”).

17 Plaintiffs rely on 28 U.S.C. §§ 1331 and 1346(a)(2) for the Court’s jurisdiction to hear

18 their non-constitutional claims. See, e.g., Coal. Pls.’ Am. Compl. ¶ 9, ECF No. 23.

19 But these general grants of jurisdiction over claims arising under federal law and

20 claims against the United States are “subject . . . to preclusion-of-review statutes

21 created or retained by Congress.” Hata v. United States, 23 F.3d 230, 232 n.2 (9th

22 Cir. 1994) (quoting Califano v. Sanders, 430 U.S. 99, 105 (1977)).

23

Plaintiffs otherwise attempt to satisfy their burden of demonstrating jurisdiction

24 by relying on “the strong presumption that Congress intends judicial review of

25 administrative action.” Bowen v. Michigan Acad. of Family Physicians, 476 U.S. 667,

26 670 (1986); see Aguayo v. Jewell, 827 F.3d 1213, 1223 (9th Cir. 2016) (“Preclusion of

27 judicial review is not lightly inferred, and usually will not be found absent a clear

28

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1 command of the statute.”). Congress, however, is free to leave district courts without

2 jurisdiction to review non-constitutional claims against an agency. See Estep v.

3 United States, 327 U.S. 114, 120 (1946) (“[E]xcept when the Constitution requires it,

4 judicial review of administrative action may be granted or withheld as Congress

5 chooses.”); see also Bowen, 476 U.S. at 672-73 (“Subject to constitutional constraints,

6 Congress can, of course, make exceptions to the historic practice whereby courts

7 review agency action.”); Block v. Community Nutrition Inst., 467 U.S. 340, 349

8 (1984) (“This presumption, like all presumptions used in interpreting statutes, may be 9 overcome . . . .”).3 Indeed, Congress noted as much in the APA itself by providing an

10 exemption from judicial review “to the extent that—(1) statutes precluding judicial

11 review.” 5 U.S.C. § 701(a)(1); Heckler v. Chaney, 470 U.S. 821, 830 (1985) (stating

12 that § 701(a)(1) “applies where Congress has expressed an intent to preclude judicial

13 review”). The question of this Court’s jurisdiction accordingly focuses attention on

14 congressional intent. See, e.g., Rodriguez v. Donovan, 769 F.3d 1344, 1347-48 (9th

15 Cir. 1985) (“The question is one of congressional intent[.]”).

16

1. Congress plainly intended to bar all judicial review of non-

constitutional claims

17

18

Congressional intent to withhold jurisdiction to review agency action can be

19 shown by “specific language or specific legislative history that is a reliable indicator

of congressional intent,” or “inferences of intent drawn from the statutory scheme as a 20

whole.” Block, 467 U.S. at 349; Maldonado v. Fasano, 67 F. Supp. 2d 1170, 1174 21

(S.D. Cal. 1999). One must begin with the statutory text itself. See Miranda v. 22

23 Anchondo, 684 F.3d 844, 849 (9th Cir. 2012). Here, the statutory text is plain enough

24 3 See also Switchmen's Union v. Nat’l Mediation Bd., 320 U.S. 297, 301 (1946) (“All
25 constitutional questions aside, it is for Congress to determine how the rights which it 26 creates will be enforced.”); Ralpho v. Bell, 569 F.2d 607, 622 & n.101 (D.C. Cir.
1977) (observing that nothing “prevent[s] [Congress] from shielding even the most 27 patent deviation from the statutory scheme from judicial redress where the 28 Constitution is in no wise implicated.” (citing Switchmen’s Union, 320 U.S. at 301)).

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1 to dispose of the question.

2

Congress has expressly withdrawn district court jurisdiction to review non-

3 constitutional challenges to the Secretary’s exercise of waiver authority:

4

The district courts of the United States shall have exclusive jurisdiction

to hear all causes or claims arising from any action undertaken, or any

5

decision made, by the Secretary of Homeland Security pursuant to

6

paragraph (1). A cause of action or claim may only be brought alleging a

7

violation of the Constitution of the United States. The court shall not have jurisdiction to hear any claim not specified in this subparagraph.

8 IIRIRA § 102(c)(2)(A) (emphasis added). This statutory language is emphatic and

9 comprehensive in several respects. First, it expansively encompasses “all causes or

10 claims arising from any action undertaken, or any decision made” pursuant to

11 § 102(c)(1)’s waiver authority. Id. Second, it expressly identifies the sort of suits that

12 may be brought: “only . . . alleging a violation of the Constitution.” Id. Third, it

13 expressly removes district court jurisdiction over “any claim not specified in this

14 subparagraph.” Id.

15

There is no reason to doubt the import of this plain language. The Ninth Circuit

16 has observed that “many . . . provisions of the IIRIRA . . . do in fact specify that

17 particular decisions are within the sole or unreviewable discretion of the Attorney

18 General.” Spencer Enterprises, Inc. v. United States, 345 F.3d 683, 690 (9th Cir.

19 2003). And a court in this district found § 102(c) straightforward, declaring that it

20 “restricted judicial review of any claims to constitutional claims.” See Sierra Club,

21 2005 U.S. Dist. LEXIS 44244, at *28; see also id. (holding that Congress

22 “circumscribed the judicial review available for decisions of the Secretary in the

23 exercise of delegated authority to expedite construction”); id. at *38 (“The only

24 justiciable controversies Congress left for the courts to decide in this connection are

25 constitutional claims.”). Indeed, § 102(c) is strikingly similar to another provision of

26 the IIRIRA which courts have found to preclude judicial review:

27

The Attorney General has sole discretion to waive [§ 1182(a)(9)(B)(i)] in

28

the case of an immigrant who [meets certain conditions], if it is

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1

established to the satisfaction of the Attorney General that [certain

conditions are met]. No court shall have jurisdiction to review a decision

2

or action by the Attorney General regarding a waiver under this clause.

3 8 U.S.C. § 1182(a)(9)(B)(v). Courts have dismissed challenges to exercise of such

4 waiver authority because the provision “specifically precludes judicial review and

5 vests DHS with sole authority to waive inadmissibility bars.” De Carreon v.

6 Mukasey, No. 08-0501, 2008 WL 11336922, at *3 (S.D. Cal. Oct. 28, 2008); Lugo-

7 Miramontes v. Holder, 464 F. App’x 639 (9th Cir. 2011) (“We lack jurisdiction to

8 review the agency’s decision [under 8 U.S.C. § 1182(a)(9)(B)(v)] . . . .”); Herrera-

9 Castillo v. Holder, 573 F.3d 1004, 1010 (10th Cir. 2009) (holding that the court “lacks

10 jurisdiction to review the BIA’s decision [under § 1182(a)(9)(B)(v)]”).

11

There are many other examples of Congress using similarly unambiguous “shall

12 not have jurisdiction” formulations to partially or completely bar judicial review. See,

13 e.g., 28 U.S.C. § 1359 (“A district court shall not have jurisdiction of a civil action in

14 which any party, by assignment or otherwise, has been improperly or collusively made

15 or joined to invoke the jurisdiction of such court.”); Upper Deck Int’l B.V. v. Upper

16 Deck Co., No. 11-1741, 2012 WL 1713453, at *7 (S.D. Cal. May 15, 2012)

17 (acknowledging that § 1359 “denies a district court jurisdiction” under the specified

18 circumstances).4 In sum, Congress could not have been clearer in stating that all non-

19 constitutional claims are barred. Accordingly, Plaintiffs’ attempts to challenge the

20 Secretary’s action on non-constitutional grounds must be rejected for lack of

21

22 4 See also, e.g., 8 U.S.C. § 1226a(b)(1) (providing for “mandatory detention of
23 suspected terrorist” but strictly limiting judicial review: “Judicial review of any action
24 or decision relating to this section . . . is available exclusively in habeas corpus proceedings consistent with this subsection. Except as provided in the preceding
25 sentence, no court shall have jurisdiction to review, by habeas corpus petition or 26 otherwise, any such action or decision.”); 22 U.S.C. § 6450 (“No court shall have
jurisdiction to review any Presidential determination or agency action under this 27 chapter or any amendment made by this chapter.” (adopted by the Int’l Religious
28 Freedom Act of 1998, Pub. L. No. 105-292, § 410, 112 Stat. 2787 (Oct. 27, 1998))).

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1 jurisdiction. See, e.g., Kerr v. Jewell, 836 F.3d 1048, 1058 & n.7 (9th Cir. 2016)

2 (upholding dismissal for lack of jurisdiction “because it is fairly discernible that

3 Congress intended the statute’s review scheme to provide the exclusive avenue to

4 judicial review”); Molly-Butcher v. U.S. Dep’t of Commerce, 12 F.3d 249, 252 (D.C.

5 Cir. 1994) (“The clarity with which Congress has spoken makes it unnecessary to 6 invoke a presumption of reviewability as petitioner urges.”).5

7

2. The legislative history and statutory context support the plain

meaning of the jurisdictional bar 8

9

The plain meaning of the Act should be the end of the matter. Aragon-Salazar

v. Holder, 769 F.3d 699, 704 (9th Cir. 2014) (“[Courts] must presume that a 10

legislature says in a statute what it means and means in a statute what it says there. 11

When the words of a statute are unambiguous, then, this first canon is also the last: 12

13 judicial inquiry is complete.” (quoting Connecticut Nat’l Bank v. Germain, 503 U.S.

14 249, 253-254 (1992))); Santiago Salgado v. Garcia, 384 F.3d 769, 771 (9th Cir. 2004)

(“In construing federal statutes, we presume that the ordinary meaning of the words 15

chosen by Congress accurately express its legislative intent.”). But if the Court were 16

to find any ambiguity in the text, the legislative history and statutory context also 17

18 5 The Coalition Plaintiffs alone press the untenable theory that certain § 102
19 requirements are prerequisite “conditions that must be satisfied before [the] Secretary
20 can invoke” the waiver authority, thus seeking to subject DHS to APA review even when a waiver has been issued. Coal. Pls.’ Br. at 6. However, the APA itself does
21 not apply “when Congress expressly bars review by statute.” Pinnacle Armor, 648
22 F.3d at 719. See 5 U.S.C. § 701(a)(1) (“This chapter applies . . . except to the extent that—(1) statutes preclude judicial review[.]”). And the aspects of the statute
23 Plaintiffs single out are not segregable here. Under the APA, a plaintiff must
24 challenge a final agency action. See Or. Nat’l Desert Ass'n v. U.S. Forest Serv., 465 F.3d 977, 982 (9th Cir. 2006). But the only final agency actions that Plaintiffs
25 challenge are the issuance of the waivers. Accordingly, because Congress has barred
26 judicial review of all non-constitutional claims “arising from any action undertaken, or any decision made, by the Secretary of Homeland Security pursuant to [the waiver
27 provision],” § 102(c)(2)(A), traditional APA review cannot be appropriate, no matter
28 how § 102 is interpreted.

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1 support the government’s reading.

2

The limitation on judicial review was adopted as part of the REAL ID Act of

3 2005. The underlying bill passed by the House of Representatives would have gone

4 farther and entirely barred judicial review, see 109th Cong., H.R. 1268, Div. B § 102

5 (engrossed in House, Mar. 16, 2005),6 which was a significant concern to opponents 6 of the bill.7 Because the Senate passed a substitute version of the bill that differed

7 substantially from the House version (and did not include any provision regarding

8 IIRIRA § 102), the bill was finalized by a conference committee. See H.R. Rep. No.

9 109-72 (May 3, 2005) (Conf. Rep.). The conference committee noted that the House

10 bill “would prohibit judicial review” and explained that the committee had “revised

11 the House provision in the following respects,” including “provid[ing] federal judicial

12 review for claims alleging that the actions or decisions of the Secretary violate the

13 United States Constitution.” See H.R. Rep. No. 109-72 at 171-72. The report further

14 explained that “[t]he Conferees’ intent is to ensure that judicial review of actions or

15 decisions of the Secretary not delay the expeditious construction of border security

16 infrastructure, thereby defeating the purpose of the Secretary’s waiver.” Id. at 172.

17 Thus, the conference report supports the plain text in two respects. First, it makes

18 clear that the House’s complete bar on judicial review was modified only to permit

19

20

6 “[N]o court, administrative agency, or other entity shall have jurisdiction—(A) to hear any cause or claim arising from any action undertaken, or any decision made, by

21 the Secretary of Homeland Security pursuant to paragraph (1); or (B) to order

22

compensatory, declaratory, injunctive, equitable, or any other relief for damage alleged to arise from any such action or decision.”

23 7 See, e.g., 151 Cong. Rec. H557 (Feb. 10, 2005) (statement of Congresswoman

24 Davis) (objecting to provision because it “bars judicial review of any claim arising

from the construction of barriers and roads at borders”); 151 Cong. Rec. H559 (Feb. 25 10, 2005) (statement of Congressman Mark Udall) (“The bill also removes any

26 judicial review of the waiving of these laws.”); Ex. 8, 151 Cong. Rec. E247, ECF No.

18-2 (statement of Congressman James Langevin) (“This overly broad provision 27 would give unprecedented power to the Secretary to undertake large construction

28 projects without any accountability or judicial review.”).

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1 judicial review of constitutional claims. Standing alone, this express provision for

2 constitutional review but no other review indicates that ultra vires review was

3 intentionally excluded. Second, the conference report establishes that strictly limited

4 judicial review was fundamental to the statutory scheme. The purpose of the waiver

5 authority is the “expeditious completion” of necessary construction, § 102(C)(2)(A),

6 and Congress was expressly concerned with litigation delays. See, e.g., Ex. 2, H.R.

7 Rep. 109-72 at 171 (May 3, 2005) (Conf. Rep.) (“Continued delays caused by

8 litigation have demonstrated the need for additional waiver authority with respect to

9 other laws that might impede the expeditious construction of security infrastructure

10 along the border, such as the Coastal Zone Management Act.”).8 Accordingly, the

11 text cannot be interpreted to permit non-constitutional review that would frustrate the

12 congressional goal to prevent litigation delays. Cf. NLRB v. United Food &

13 Commercial Workers Union, 484 U.S. 112, 130-133 (1988) (holding that

14 “prosecutorial” decisions of the General Counsel of the NLRB are not subject to

15 judicial review, in part because review “would involve lengthy judicial proceedings in

16 precisely the area where Congress was convinced that speed of resolution is most 17 necessary”).9

18 8 See also Ex. 6, 151 Cong. Rec. H471 (Feb. 9, 2005) (statement of Cong. Hoekstra)
19 (“Authorized by Congress in 1996, [the San Diego barrier] has yet to be completed

20 because of on-going environmental litigation.”); Ex. 7, 151 Cong. Rec. H554 (Feb. 9, 2005) (statement of Cong. Sensenbrenner) (referencing “endless litigation against
21 plugging the hole in the fence south of San Diego” and noting that “[w]e were able to

22 win World War II quicker than we were able to complete this fence”).

23 9 Indeed, all prior challengers to the exercise of § 102(c) waiver authority—including Plaintiffs Defenders of Wildlife and Sierra Club—accepted as a given that the only
24 available legal challenges are constitutional claims. See, e.g., Cert. Petition at 2,

25 Defenders of Wildlife & Sierra Club v. Chertoff, No. 07-1180 (S. Ct. Mar. 2008) (“[T]here is no judicial review to determine whether the Secretary’s waiver decision
26 accords with the statutory standard.”); id. at 5 (“The provision also precluded all

27 judicial review of any claim that a waiver under Section 102 exceeded the scope of the Secretary’s delegated authority.”); id. at 13 (“Section 102 . . . unequivocally precludes
28 all judicial review[.]”); see also Walls & Waivers Hearing, 110th Cong. 122

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1

3. Plaintiffs cannot evade the jurisdictional bar by framing their

claims as ultra vires challenges 2

3

Plaintiffs cannot evade Congress’ clear jurisdictional limitation by citing a

series of cases reviewing whether an agency acted ultra vires even when other sorts of 4

judicial review were impliedly or expressly prohibited. See Ctr. Br. at 10-15; Coal. 5

Br. at 12; Cal. Br. at 13. While these cases show that courts are less inclined to find 6

that Congress intended to prohibit ultra vires review (and review of constitutional 7

8 claims) than merits review, they cannot overturn plainly expressed congressional

9 intent to prohibit all review other than constitutional claims. Indeed, the Supreme

Court has made clear that these cases merely apply “the familiar proposition that ‘only 10

upon a showing of clear and convincing evidence of a contrary legislative intent 11

should the courts restrict access to judicial review.’” Bd. of Governors of Fed. 12

13 Reserve Sys. v. MCorp Fin. Inc., 502 U.S. 32, 44 (1991) (quoting Abbott Labs. v.

14 Gardner, 387 U.S. 136, 141 (1967)).

The presumption of judicial review is merely an “interpretive guide” that is 15

“dislodge[d]” when Congress provides “clear and convincing evidence” that it intends 16

to preclude judicial review. Kucana v. Holder, 558 U.S. 233, 251 (2010). In 1943, 17

18 for example, the Supreme Court held that the Railway Labor Act—by providing

19 judicial review for certain other matters but only administrative review of an agency’s

certification of a collective bargaining representative—impliedly precluded judicial 20

review because congressional “intent seems plain” that “[t]here was to be no dragging 21

of the controversy into other tribunals of law.” See Switchmen’s Union v. Nat’l 22

23 Mediation Bd., 320 U.S. 297, 305 (1943). A few year later, in what became the

24 seminal ultra vires review decision, the Supreme Court reaffirmed Switchmen’s

25

26 (statement of Sandra Purohit, Defenders of Wildlife) (observing that the withdrawal of “judicial review with the exception of Constitutional challenges, thus preclud[es] any
27 independent review of whether the DHS Secretary has only waived the laws
28 ‘necessary’ for the expeditious construction of border walls”).

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1 Union’s focus on congressional intent and applied it to ultra vires review. See

2 Leedom v. Kyne, 358 U.S. 184, 188 (1958). Kyne held that courts “cannot lightly infer

3 that Congress does not intend judicial protection of rights it confers against agency

4 action taken in excess of delegated powers.” Id. at 190. Because the agency action

5 was “contrary to a specific [statutory] prohibition” that was “clear and mandatory”

6 and “deprived the professional employees of a ‘right’ assured to them by Congress,”

7 the Court concluded that Congress intended to permit ultra vires review. Id. at 188-

8 90.10

9

The Supreme Court has more recently clarified Kyne’s limited scope. Kyne and

10 its progeny do not “authoriz[e] judicial review of any agency action that is alleged to

11 have exceeded the agency’s statutory authority.” MCorp Fin., 502 U.S. at 43

12 (emphasis added). Instead, Kyne does not apply where “Congress has spoken clearly

13 and directly” to preclude review. Id. at 44; see also Pinnacle Armor, Inc. v. United

14 States, 648 F.3d 708, 719 (9th Cir. 2011) (stating that presumption of judicial review

15 for administrative action “is overcome” when “Congress expressly bars review by

16 statute”).

17

Congressional intent to prohibit ultra vires review is at least as clear here as it

18 was in MCorp Financial. Here, just as in MCorp Financial, Congress “has spoken

19 clearly and directly” to preclude all judicial review (except for constitutional claims).

20 In MCorp Financial, the relevant statute stated that “except as otherwise provided in

21 this section or under [two other sections] of this title no court shall have jurisdiction to

22 affect by injunction or otherwise the issuance or enforcement of any [Board] notice or

23

24 10 The Coalition Plaintiffs have suggested that ultra vires review is a matter of the Court’s “inherent authority.” See Coal. Br. at 2, 12, 27. This view has not been
25 adopted by the Ninth Circuit and is irreconcilable with MCorp Financial’s
26 explanation that such review is grounded in the rebuttable presumption of congressional intent to permit such review. See 502 U.S. at 44; see also Kyne, 358
27 U.S. at 190 (rooting ultra vires review in the “inference . . . that Congress intended the
28 statutory provisions governing the general jurisdiction of those courts to control.”).

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1 order under this section.” 12 U.S.C. § 1818(i)(1); see 502 U.S. at 44. The Supreme

2 Court held that ultra vires review under Kyne was unavailable because “the clarity of

3 the congressional preclusion of review” in this statute stood in marked contrast to the

4 statute at issue in Kyne, in which it had only been argued that a judicial review statute

5 “implied, by its silence, a preclusion of review of the contested determination.” 502

6 U.S. at 44. Section 102 of the IIRIRA, like 12 U.S.C. § 1818(i)(1), is an express

7 preclusion provision rather than an implied one. The only avenue for challenging

8 agency action here is a constitutional claim. Indeed, it is difficult to imagine how

9 Congress could have been any more comprehensive or what Plaintiffs would accept as

10 sufficient evidence of intent to bar ultra vires claims. See Maldonado, 67 F. Supp. 2d

11 at 1182 n.13 (holding that even in “attempt[ing] to read the jurisdiction stripping

12 provisions of [the IIRIRA] narrowly, [a court] cannot escape the principle that ‘courts

13 must presume that a legislature says in a statute what it means and means in a statute

14 what it says.’” (quoting Connecticut Nat. Bank, 503 U.S. at 253-54)); cf. United States

15 v. Spiegel, 995 F.2d 138, 140 (9th Cir. 1993) (noting that the “statutory language [of

16 § 1818(i)(1)] leaves no room to doubt that Congress provided only one avenue for

17 challenging” agency action under that section).

18

As another court has noted, the presumption in favor of judicial review cannot

19 shift the balance “where, as here, Congress has been so explicit in stating a prohibition

20 against judicial review—federal courts are not, after all, superlegislatures entitled to

21 invoke a generalized presumption to trump an express ‘hands off’ direction from

22 Congress.” Am. Soc’y of Anesthesiologists v. Shalala, 90 F. Supp. 2d 973, 975 (N.D.

23 Ill. 2000), aff’d, 279 F.3d 447 (7th Cir. 2002) (addressing 42 U.S.C. § 1395w–4).

24

None of Plaintiffs’ arguments against the plain reading of the statutory language

25 is meritorious. First, the Center argues that “any decision made . . . pursuant to

26 paragraph (1)” demonstrates an intent to permit judicial review of whether the “waiver

27 was . . . authorized by § 102.” Ctr. Br. at 11. But the Center identifies no support for

28

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1 its aggressive interpretation of “pursuant to.” Instead, the phrase is naturally read to

2 merely identify the basis on which the Secretary took an action or made a decision. It

3 is parallel to the language of the statute at issue in MCorp Financial: a “notice or

4 order under this section.” 12 U.S.C. § 1818(i)(1) (emphasis added). Such ordinary

5 cross-references are far different from the clauses the Ninth Circuit has previously

6 found to narrow the scope of a jurisdiction-limiting provision. See, e.g., Spencer

7 Enterprises, Inc. v. United States, 345 F.3d 683, 688-90 (9th Cir. 2003) (interpreting 8

8 U.S.C. § 1252(a)(2)(B)(ii), which provides “no court shall have jurisdiction to review

9 . . . any other decision or action of the Attorney General the authority for which is

10 specified under this subchapter to be in the discretion of the Attorney General[.]”). In

11 Spencer Enterprises, the Circuit relied on the unique phrasing that the “authority . . .

12 be in the discretion of the Attorney General” to conclude that the jurisdiction-stripping

13 provision applied only to “matters of pure discretion, rather than discretion guided by

14 legal standards.” Id. at 690. But here, nothing in the text demonstrates an intent to

15 narrow the jurisdiction-limiting provision. To the contrary, as discussed above,

16 Congress repeatedly used comprehensive language. See supra Arg. § II(A)(1).

17

Second, Plaintiffs improperly extrapolate from the fact that courts have

18 distinguished between congressional intent to bar merits review of a decision and

19 intent to bar ultra vires review. See Ctr. Br. at 11-15; Coal. Br. at 12. As MCorp

20 Financial makes clear, Congress can and does craft statutes that preclude both types

21 of judicial review. In this regard, Plaintiffs incorrectly suggest that United States v.

22 Bozarov, 974 F.2d 1037 (9th Cir. 1992), a case involving the Export Administration

23 Act (EAA), narrowly cabined MCorp Financial in this Circuit. See Ctr. Br. at 15;

24 Coal. Br. at 12. To the contrary, Bozarov—in dicta11—merely rejected the argument

25

26 11 Bozarov addressed judicial review merely to “bolster” its already settled conclusion

27 that the EAA’s preclusion of judicial review did not violate the nondelegation doctrine. 974 F.2d at 1041 (“[D]oes a delegation of legislative power to the executive
28 that is statutorily exempt from judicial review violate the nondelegation doctrine?”);

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1 that MCorp Financial inherently prohibits ultra vires review wherever a “statute

2 precludes judicial review.” 974 F.2d at 1045 n.8.12 The Ninth Circuit expressly

3 limited its holding to “the EAA’s preclusion of judicial review,” id. at 1045 n.6, and

4 similarly limited its discussion in the footnote on which Plaintiffs rely to whether

5 “MCorp precludes judicial review of this type of claim under the EAA.” Id. at 1045

6 n.8 (emphasis added). For purposes of that analysis, the Ninth Circuit adopted the

7 reasoning of Dart v. United States, 848 F.2d 217 (D.C. Cir. 1988), and concluded that

8 “despite the [EAA’s] seemingly absolute preclusion of review” Congress intended

9 courts to review “claims that the Secretary acted in excess of his delegated authority

10 under the EAA.” 974 F.2d at 1044-45.13

11

Plaintiffs, moreover, cannot make expansive use of Dart because the D.C.

12

13

id. at 1044 (“In sum, we believe that the Supreme Court cases upholding judicial preclusion of agency decisions, the language of the APA, and the fact that the EAA

14 involves foreign policy issues support our conclusion that the EAA’s preclusion of

15

judicial review is constitutional.”). Because the aside about the scope of judicial review under the EAA and the interpretation of MCorp Financial was not necessary to

16 the decision, it is properly considered dicta. See Export Group v. Reef Indus., Inc., 54

17

F.3d 1466, 1472 (9th Cir.1995) (adopting Black's Law Dictionary definition of “dictum” as “an observation or remark ... not necessarily involved in the case or

18 essential to its determination”) (ellipsis in the original); id. (holding that statements

19 “not necessary to the decision” of the case “have no binding or precedential impact”).

20

12 There is some tension between Bozarov’s rejection of this argument and later Ninth Circuit decisions. See Pinnacle Armor, 648 F.3d at 719 (stating that presumption of

21 judicial review for administrative action “is overcome” when “Congress expressly

22

bars review by statute” (citing MCorp Fin., 502 U.S. at 44)); cf. Nyunt v. Broad. Bd. of Governors, 589 F.3d 445, 449 (D.C. Cir. 2009) (holding that the Kyne exception

23 “applies . . . only where . . . the statutory preclusion of review is implied rather than

24

express”). For purposes of this motion, however, Defendants assume that MCorp Financial permits inquiry into whether the express preclusion provision was intended

25 to preclude ultra vires review.

26 13 Plaintiffs err in suggesting that Bozarov and Dart represent a body of caselaw distinct from Kyne and MCorp Financial. See Ctr. Br. at 14-15. Dart repeatedly
27 relied on Kyne “and its progeny,” 848 F.2d at 222-23, 231, and Bozarov treated Kyne
28 and MCorp Financial as containing the applicable standards. 974 F.2d at 1045.

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1 Circuit itself has clarified that “Dart stands for the exceedingly narrow proposition

2 that a statute precluding review is limited by its language.” McBryde v. Comm. to

3 Review Cir. Council Conduct & Disability Orders, 264 F.3d 52, 63 (D.C. Cir. 2001).

4 Importantly, the EAA’s language is quite dissimilar from the language at issue here,

5 providing that certain orders and decisions of the Secretary “shall be final and is not 6 subject to judicial review.” 50 U.S.C. app. § 2412(c)(1), (e).14 Such finality

7 provisions are common in federal statutes and have often been found to reflect an

8 intent to preclude merits review but not ultra vires review.15 Courts tend to conclude

9 that such finality clauses are focused on preventing disturbance of the merits decisions

10 of the agency. See, e.g., Dart, 848 F.2d at 224, 227 (concluding, with regard to the

11 EAA’s finality clauses that they “suggest[] that Congress was mainly concerned about

12 prolonged appeals of claims on the merits . . . .”). Thus, at bottom, Dart simply states

13 14 Section 2412(e) was at issue in Bozarov, and § 2412(c)(1) was at issue in Dart.
14 Dart also addressed another “finality clause” in the EAA, which is not relevant here.

15 The EAA excludes the “functions exercised under this Act” from APA review. 50

16

U.S.C. app. § 2412(a). Dart found this “indirect approach” significant and explained that the removal of APA review did not dispose of ultra vires review because “[p]rior

17 to the APA’s enactment . . . courts had recognized the right of judicial review of

18

agency actions that exceeded authority,” and “[n]othing in the subsequent enactment of the APA altered [this] doctrine of review.” 848 F.2d at 224. Because § 102 here

19 does exactly what Dart noted the EAA did not do—“directly barring review of all . . .

20 decisions,” id., Plaintiffs can find no support from Dart’s analysis of this clause. 15 In addition to Dart and Bozarov, Plaintiffs themselves point to two other cases
21 applying ultra vires review despite similar finality clauses. See, e.g., Lindahl v. OPM,

22 470 U.S. 768, 773 (1985) (“Questions of dependency and disability arising under this

section shall be determined by the Civil Service Commission and its decisions 23 concerning these matters are final and conclusive and are not subject to review.”);

24 Owens v. Hills, 450 F. Supp. 218, 221 (N.D. Ill. 1978) (“[The Secretary’s] decisions

regarding . . . the terms and conditions under which [expenditures and payments] are 25 approved or disapproved, shall be final and conclusive and shall not be subject to

26 judicial review.”). Cf. Staacke v. U.S. Sec’y of Labor, 841 F.2d 278, 281 (9th Cir.

1988) (“The action of the Secretary . . . in allowing or denying a payment under this 27 subchapter is— . . . (2) not subject to review by another official of the United States or

28 by a court by mandamus or otherwise.”).

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1 that courts “look for more explicit congressional intent before inferring that all review

2 is cut off.” 848 F.2d at 224. And here, Congress has employed “far more

3 unambiguous and comprehensive language,” that must be respected. See Lindahl, 470

4 U.S. at 773, 779-80 (“[W]hen Congress intends to bar judicial review altogether, it

5 typically employs language far more unambiguous and comprehensive than” 5 U.S.C.

6 § 8347(c)’s provision that “decisions concerning these matters are final and

7 conclusive and are not subject to review”).16

8

In sum, “the clear terms of the statute” control here, and no “policy arguments”

9 Plaintiffs may wish to make can “override Congress’s clear choice.” Spiegel, 995

10 F.2d at 140. Put another way, the Act is not “reasonably susceptible to divergent

11 interpretation,” and the presumption of judicial review is “dislodged.” Kucana, 558

12 U.S. at 251. Plaintiffs’ non-constitutional challenges to the waiver determination

13 must be dismissed for lack of jurisdiction.

14

4. Plaintiffs have not established that they have statutory rights

to vindicate through litigation 15

Even if congressional intent to prohibit ultra vires review was not clear and 16

convincing, Plaintiffs have not established that they satisfy Kyne’s “narrow exception” 17

18 by making the “two-part showing” required in this Circuit: (1) that the challenged

19 action “contravene[s] clear and mandatory statutory language” and (2) that “absent

district court jurisdiction, [plaintiff would] be wholly deprived of a meaningful and 20

21

22 16 Similarly, the mere fact that courts have sometimes found ultra vires review permitted where merits decisions are committed to agency discretion does not help
23 resolve congressional intent here, where the interpretation of Congress’ expressly
24 preclusive language is at stake. See Ctr. Br. at 12-13 (citing Trans Alaska Pipeline Rate Cases, 436 U.S. 631, 638 n.17 (1978); Assiniboine & Sioux Tribes of Fort Peck
25 India Reservation v. Bd. of Oil & Gas Conservation, 792 F.2d 782, 791-92 (9th Cir.
26 1986); Nadler v. Civil Aeronautics Bd., 657 F.2d 453, 456 (D.C. Cir. 1981)). Because the “committed to agency discretion” analysis depends on different factors and has a
27 different scope than the analysis for “statutes precluding judicial review,” such cases
28 are of little assistance in interpreting the scope of express jurisdictional bars.

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1 adequate means of vindicating its statutory rights.” Pacific Maritime Ass’n v. NLRB,

2 827 F.3d 1203, 1208 (9th Cir. 2016). Plaintiffs’ failure to establish either of these

3 prongs is fatal to their attempt to invoke ultra vires review. The second prong is

4 addressed here, and the first prong is addressed in the following section.

5

Beginning with Switchmen’s Union, courts have emphasized that this form of

6 review is appropriate only as a last resort to protect statutory rights. See MCorp Fin.,

7 502 U.S. at 43 (explaining that the fact that the plaintiff would have been “wholly

8 deprive[d] . . . of a . . . means of vindicating its statutory rights” was “central to our

9 decision in Kyne” (emphasis added)); Kyne, 358 U.S. at 189 (engaging in judicial

10 review where agency action “deprived the professional employees of a ‘right’ assured

11 to them by Congress” (emphasis added)); Switchmen’s Union, 320 U.S. at 300

12 (observing that there would be a strong inference of jurisdiction “[i]f the absence of

13 jurisdiction . . . meant a sacrifice or obliteration of a right which Congress had

14 created” (emphasis added)). Thus, this form of review does not permit the public to

15 challenge every alleged legal error of an agency. See, e.g., MCorp Fin., 502 U.S. at

16 43 (rejecting Fifth Circuit conclusion that Kyne authorizes “judicial review of any

17 agency action that is alleged to have exceeded the agency’s statutory authority”);

18 McBryde, 264 F.3d at 63 (“Dart cannot mean that statutory insulation of a specific

19 type of “order” from review is automatically ineffective whenever the complainant

20 asserts legal error.”).

21

The second prong requires Plaintiffs to identify more than a “statutory

22 obligation” for the agency, but instead requires them to identify a “statutory right” by

23 which Plaintiffs are entitled to vindication. See Calif. Sportfishing Protection Alliance

24 v. U.S. Bureau of Reclamation, No. 15-912, 2015 WL 6167521, at *11 & n.8 (E.D.

25 Cal. Oct. 20, 2015). Analyzing whether a statute creates individual rights is familiar

26 from several contexts, including § 1983 cases and private right of action cases. See

27 Save Our Valley v. Sound Transit, 335 F.3d 932, 936 (9th Cir. 2003) (comparing both

28

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1 legal doctrines and noting that “only violations of rights, not laws, give rise to § 1983

2 actions”). Thus, it is well established that for a statutory right to exist, the statute

3 itself must direct its benefits to individuals, not merely to the aggregated public or by

4 commands to the agency. See, e.g., Logan v. U.S. Bank Nat’l Ass’n, 722 F.3d 1163,

5 1171 (9th Cir. 2013) (“Statutes containing general proscriptions of activities or

6 focusing on the regulated party rather than the class of beneficiaries whose welfare

7 Congress intended to further do not indicate an intent to provide for private rights of

8 action.”); Ball v. Rodgers, 492 F.3d 1094, 1109-10 (9th Cir. 2007) (summarizing

9 several Circuit cases holding that statutory provisions did not create individual rights

10 enforceable under § 1983 because “they do not mention the service recipients, or refer

11 to them in the aggregate, or refer to them in the context of describing a more general

12 institutional policy or practice”); Sanchez v. Johnson, 416 F.3d 1051, 1057 (9th Cir.

13 2005) (“The [Supreme] Court repeatedly stressed that it is Congress's use of explicit,

14 individually focused, rights-creating language that reveals congressional intent to

15 create an individually enforceable right in a spending statute.”). Because Plaintiffs

16 here have identified no statutory right in the text of § 102, it would be an unwarranted

17 extension of ultra vires review to apply it to the circumstances here.

18

B. To the Extent the Court Conducts Ultra Vires Review, It Must

Conclude that the Secretary Did Not Exceed His Statutory Authority 19

In the alternative, to the extent the Court determines that—despite the plain 20

meaning of the statute and Congress’ clear intent—courts retain jurisdiction to 21

determine whether a waiver determination is ultra vires, the Secretary’s decision here 22

23 must be upheld. Under the extraordinarily deferential ultra vires review standard, the

24 Court must conclude that the Secretary did not exceed his statutory authority.

Ultra vires review requires Plaintiffs to show that the challenged action 25

“contravene[s] clear and mandatory statutory language.” Pacific Maritime Ass’n, 827 26

F.3d at 1208. In other words, the agency must be “charged with violating a clear 27

statutory mandate or prohibition.” Staacke v. U.S. Sec’y of Labor, 841 F.2d 278, 281 28

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1 (9th Cir. 1988). See also Am. Airlines, Inc. v. Herman, 176 F.3d 283, 293 (5th Cir.

2 1999) (“Courts . . . generally have interpreted Kyne as sanctioning the use of

3 injunctive powers only in a very narrow situation in which there is a plain violation of

4 an unambiguous and mandatory provision of the statute.”); Greater Detroit Resource

5 Recovery Auth. v. EPA, 916 F.2d 317, 323 (6th Cir. 1990) (“[I]t must be shown that

6 the action of the agency was a patent violation of its authority” and it is “not

7 automatically invo[cable] whenever a challenge to the scope of an agency’s authority

8 is raised”); Griffith v. FLRA, 842 F.2d 487, 493 (D.C. Cir. 1988) (“[R]eview may only

9 be had when the agency’s error is patently a misconstruction of the Act, or when the

10 agency has disregarded a specific and unambiguous statutory directive, or when the

11 agency has violated some specific command of a statute.”). A court’s jurisdiction

12 under the Kyne exception is “one of the narrowest known to the law.” Horizon Air

13 Indus., Inc. v. Nat’l Mediation Bd., 232 F.3d 1126, 1131 (9th Cir. 2000); see also

14 Nyunt, 589 F.3d at 449 (holding that “extreme error” is required to rely on the Kyne

15 exception, and that this is a “very stringent standard” under which a claim “rarely

16 succeeds”); Am. Airlines, 176 F.3d at 294 (concluding that “the narrow Kyne

17 exception” is a “rarely invocable precedent”); Greater Detroit, 916 F.2d at 323-24

18 (affirming that the Kyne exception “is a narrow anomaly reserved for extreme

19 situations”).

20

Plaintiffs cannot carry that burden. None of their arguments establishes that the

21 DHS Secretary violated a “clear statutory mandate or prohibition.” Staacke, 841 F.2d

22 at 281.

23

1. Plaintiffs cannot show that § 102(a)’s general mandate and §

102(c)’s waiver provision apply only to the specific

24

Congressional priorities identified in § 102(b)

25

Plaintiffs primarily argue that § 102(c) waiver authority “is limited to specific

26 border barriers mandated pursuant to § 102(b).” Ctr. Br. at 16; see also Coal. Br. at

27 16; Cal. Br. at 20. This theory finds no support in the text of § 102(c)(1):

28

Notwithstanding any other provision of law, the Secretary of Homeland

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1

Security shall have the authority to waive all legal requirements such

Secretary, in such Secretary’s sole discretion, determines necessary to

2

ensure expeditious construction of the barriers and roads under this

3

section.

4 IIRIRA § 102(c)(1) (emphasis added). By its plain terms, the waiver authority

5 extends to any construction “under this section,” upon determinations made in the

6 Secretary’s “sole discretion.” Id. “[T]his section” unambiguously refers to IIRIRA

7 § 102 as a whole. See, e.g., House Office of the Legislative Counsel, Guide to

8 Legislative Drafting, Section III. Organization within a bill (link) (explaining that

9 “sections” are the numbered “basic unit[s] of a bill, and thus of an enacted statute” and

10 that “terminology for referring to units within a section has become highly

11 standardized”). When Congress wanted to identify a specific unit within § 102, it did

12 so in the standardized format.17 Accordingly, the reference to “this section” in

13 § 102(c)(1) cannot reasonably be read to refer exclusively to subsection 102(b).18

14

15 17 As the Guide to Legislative Drafting explains, § 102(a) is a “subsection,”

16

§ 102(b)(1) is a “paragraph,” and § 102(b)(1)(A) is a “subparagraph.” See id. Congress followed this approach throughout § 102, both as originally enacted and as

17 amended. See, e.g., IIRIRA § 102(b)(1) (“subsection (a)”); id. § 102(b)(1)(C)(ii)

18

(“this subparagraph”); id. § 102(b)(1)(C)(ii)(I) (“this subsection”); id. § 102(b)(1)(D) (“this paragraph” “subparagraph (A)”); id. § 102(b)(2) (“subsection (d)” “this

19 subsection”); id. § 102(b)(3) (“this subsection”); id. § 102(b)(4) (“this subsection”

20

“this paragraph”); id. § 102(c)(2)(A) (“paragraph (1)” “this subparagraph”); id. § 102(c)(2)(B) (“subparagraph (A)”).

21 18 The Center argues that “the terms ‘section’ and ‘subsection are used inconsistently”

22 and thus the IIRIRA is not a “model of plain language clarity.” Ctr. Br. at 19. But its

examples from § 102(b)(1)(A)-(C) merely suggest that “carrying out subsection (a)” 23 has the same import as “carrying out this section.” This supports Defendants’ position

24 about the meaning of § 102(a)’s general mandate. Plaintiffs’ point would only be

served if § 102(b) were used interchangeably with “this section.” Similarly, the 25 Coalition Plaintiffs argue that the deadlines imposed in the current version of

26 § 102(b)(1) “provide[] the context as to what Congress meant . . . by necessity” in

§ 102(c). Coal. Br. at 17. Again this cuts against Plaintiffs because these deadlines 27 appear only in the latest version of the Act, while the structure they try to explain goes

28 all the way back to 1996.

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1 Instead, the waiver authority plainly includes actions pursuant to any part of § 102 that

2 meet § 102(c)(1)’s criteria.

3

The most straightforward reading, and the one consistently applied by DHS,19 is

4 that § 102(a) provides a general mandate to take action, and that § 102(b) identifies

5 particular congressional priorities to be pursued:

6

(a) In general. The Secretary . . . shall take such actions as may be

necessary to install additional physical barriers and roads (including the

7

removal of obstacles to detection of illegal entrants) in the vicinity of the

8

United States border to deter illegal crossings in areas of high illegal

9

entry into the United States.

(b) Construction of fencing and road improvements along the border. 10

(1) Additional fencing along southwest border 11

12

(A) Reinforced fencing. In carrying out subsection (a), the Secretary . . . shall construct reinforced fencing along not

13

less than 700 miles of the southwest border . . . .

14

(B) Priority areas. In carrying out this section, the Secretary

15

. . . shall—(i) identify the 370 miles . . . where fencing would be most practical and effective; and (ii) not later than

16

December 31, 2008, complete construction of reinforced

17

fencing along [those] miles . . . .

18 IIRIRA § 102. This reading is supported by the natural import of § 102(a)’s broad

19

20 19 DHS has never countenanced the narrow reading proposed by Plaintiffs; even though San Diego was the only location listed in § 102(b) until 2006, DHS
21 constructed border infrastructure in locations other than San Diego prior to 2006 and
22 referenced its IIRIRA authority in doing so. See, e.g., Ex. 19, CBP Finding of No Significant Impact for Infrastructure (Nov. 19, 2003), ECF No. 18-2 (explaining that
23 “the proposed border infrastructure system [for Cochise County, Arizona] has been
24 planned in compliance with the IIRIRA”); Ex. 11, Cong. Research Serv., RL33659, Border Security: Barriers Along the U.S. Int’l Border at 19 (Mar. 16, 2009) (noting
25 that appropriations for fiscal years 1998-2000 included “fencing, light, and road
26 projects in El Centro, Tucson, El Paso, and Marfa”). See also Defs.’ Mot. to Dismiss at 6-7, ECF No. 36, Sierra Club, et al. v. Ashcroft, et al., No. 04-0272 (S.D. Cal. Nov.
27 11, 2005) (arguing that § 102(b)(1) simply provided “a required method of achieving
28 [§ 102(a)’s] important goal in one geographic area”).

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1 language calling for action to “deter illegal crossings in areas of high illegal entry to

2 the United States.” It is also supported by the contrast between this broad language

3 and the specific details in § 102(b) which are to be applied “in carrying out” the

4 general mandate. In effect, Congress said to DHS: “However else you apply this

5 mandate, make sure you complete the projects we have identified in § 102(b).” And

6 over the years, Congress has altered its assessment of what those priorities should be,

7 sometimes specifying specific locations, see Secure Fence Act of 2006, Pub. L. No.

8 109-367, § 3, 120 Stat. 2638 (Oct. 26, 2006); IIRIRA, Pub. L. No. 104-208, Div. C,

9 Title I § 102, 110 Stat. 3009-554 (Sept. 30, 1996), and most recently specifying

10 aggregate minimum thresholds. See Dep’t of Homeland Security Appropriations Act,

11 2008, Pub. L. No. 110-161, Div. E, Title V § 564, 121 Stat. 2090 (Dec. 26, 2007).

12 Indeed, Congress, with some regularity, has organized statutes with a general mandate

13 followed by specific guidance “in carrying out” that grant of authority. See, e.g., 33

14 U.S.C. § 2326(a)(1)(A), (f) (giving Secretary of the Interior general responsibility to

15 “develop . . . regional sediment management plans” and specifying that “[i]n carrying

16 out this section, the Secretary shall give priority to [projects] in the vicinity of [eleven 17 specific locations]”).20

18

Plaintiffs, however, argue § 102(a) serves only as a purpose clause and that §

19 102(b) identifies every way that Congress intends § 102(a) to be implemented. This

20 theory is highly implausible and must be rejected for three reasons. First, when

21 Congress identifies certain specific applications of a general grant of authority, those

22 specific requirements cannot generally be understood to prohibit all other applications

23

24 20 See also 8 U.S.C. § 1443 (requiring Attorney General to “broadly distribute

25 information concerning the benefits of [naturalization]” and specifying that “[i]n carrying out this subsection, the Attorney General shall seek the assistance of . . .
26 relevant organizations”); 42 U.S.C. § 18352 (giving NASA general responsibility to

27 “maximize the productivity and use of the [International Space Station]” and specifying that “[i]n carrying out subsection (a), NASA shall, at a minimum,
28 undertake the following [three specific tasks]”).

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1 of the general authority. See Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003)

2 (“We do not read the enumeration of one case to exclude another unless it is fair to

3 suppose that Congress considered the unnamed possibility and meant to say no to it.”).

4 Arguments similar to Plaintiff’s are routinely rejected. See, e.g., FTC v. Tarriff, 584

5 F.3d 1088, 1091 (D.C. Cir. 2009) (rejecting argument “that the term ‘shall’ is a

6 mandate not only to do one thing but to cease and refrain from doing all others” as a

7 claim that “borders on sophistry”); Otsuka Pharm. Co. v. Burwell, No. 15-852, 2015

8 WL 1962240, at *7 (D. Md. Apr. 29, 2015) (“[Plaintiff] ignores the critical fact that

9 [the statutory provision] sets forth circumstances where FDA cannot deny approval for

10 a labeling carve-out; it does not, as [plaintiff] contends, address situations where FDA

11 can or cannot grant approval.”); Sidney Coal Co. v. SSA, 427 F.3d 336, 348 (6th Cir.

12 2005) (“[T]he statute’s explicit reference to two types of employment need not

13 preclude [the agency from] adding another to the list.”). Thus, when faced with the

14 same argument Plaintiffs make about the interaction between § 102(a) and (b) in 2008,

15 the U.S. District Court for the District of Columbia rejected it because “[t]he statute’s

16 explicit language does not support such an interpretation.” Save Our Heritage Org.,

17 533 F. Supp. 2d at 61 (rejecting the notion that “the 2006 amendment to section

18 102(b) . . . narrow[ed] the Secretary’s authority [under § 102(a)]”); see also id.

19 (“[T]he Court finds that section 102(a), on its face, authorizes construction of barriers

20 such as the San Diego Barrier in areas that the Secretary determines are areas of high

21 illegal entry.”).21

22

23 21 Plaintiffs repeatedly argue that the Sierra Club decision adopted their reading of the interaction between § 102(a) and (b). In rejecting plaintiffs’ first Nondelegation
24 Doctrine challenge, Sierra Club found that Congress had provided sufficient

25 boundaries for the waiver authority, observing among other things that this authority was “only for the narrow purpose of expeditious completion of the Triple Fence
26 authorized by the IIRIRA.” 2005 U.S. Dist. LEXIS 44244, at *20. That observation

27 is best understood to merely reference the fact—highlighted by DHS—that the delegated authority was only being used for a construction project that Congress itself
28 had specified. Cf. Defs.’ MTD at 6-7, Doc. No. 36, Sierra Club, et al. v. Ashcroft, et

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1

Second, the specific terms of the IIRIRA as originally enacted cut sharply

2 against Plaintiffs’ reading. Under their reading, Congress had specified the only

3 location for which the entirety of § 102 could be employed: constructing “second and

4 third fences” “along the 14 miles of the international land border . . . starting at the

5 Pacific Ocean.” Pub. L. No. 104-208, Div. C, Title I § 102(b)(1). It is not apparent

6 how the broad mandate to “install additional physical barriers and roads . . . to deter

7 illegal crossings in areas of high illegal entry,” § 102(a), could be fulfilled by that

8 narrow instruction.22 Instead, § 102(a) would be rendered largely superfluous. See

9 Hooks v. Ktsap Tenant Support Servs., Inc., 816 F.3d 550, 560 (9th Cir. 2016) (“It is a

10 cardinal principle of statutory construction that a statute ought, upon the whole, to be

11 so construed that, if it can be prevented, no clause, sentence, or word shall be

12 superfluous, void, or insignificant.”). Plaintiffs attempt to solve this dilemma with

13 their reading by suggesting that § 102(a) clauses (such as “areas of high illegal entry”)

14

15 al., No. 04-0272 (S.D. Cal. Nov. 11, 2005) (arguing that § 102(a) provided a “clearly

delineated general policy” and that § 102(b)(1) simply provided “a required method of 16 achieving [§ 102(a)’s] important goal in one geographic area: the construction of

17 fencing and road improvements in the border area near San Diego”). Importantly,

18

neither party proffered a reading making § 102(b) exclusive. See, e.g., Pl.’s Opening Br. at 8 n.3, Doc. No. 35, Sierra Club, et al. v. Ashcroft, et al., No. 04-0272 (S.D. Cal.

19 Oct. 27, 2005) (“The roads and barriers are those in the vicinity of the U.S. border

20

generally, and along the San Diego-Tijuana border in particular.” (citing § 102(a) & (b))). But even if Sierra Club did read § 102(b) exclusively, without the benefit of

21 briefing on the subject, that conclusion was not essential to its reasoning and should

22

be rejected as mistaken. Cf. Save Our Heritage Org., 533 F. Supp. 2d at 61 (finding Sierra Club’s reasoning applicable while rejecting an exclusive reading of § 102(b)).

23 22 Defendants do not dispute that Executive Branch authority to build border

24 infrastructure could be implied from more general laws, such as the Immigration and

Nationality Act of 1952, Pub. L. No. 82-414 § 103, 66 Stat. 163, 174 (June 27, 1952) 25 (codified, as amended, at 8 U.S.C. § 1103). Indeed, the barriers to be replaced

26 pursuant to the waiver determinations here were constructed in the “early 1990s,” 82

Fed. Reg. at 35985, 42830, prior to the passage of § 102. Section 102(a) serves both 27 to make that authority express and to instruct the Executive Branch to take such action

28 wherever necessary.

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1 add meaningful “limits.” Ctr. Br. at 20. But they miss the fact that, as originally

2 enacted, their reading would leave nothing to be limited—Congress had already

3 specified the exact parameters for the construction. Thus, § 102(a)’s broad mandate to

4 identify “areas of high illegal entry” would not only become empty, but also create

5 substantial confusion. See Pacific Mut. Life Ins. Co. v. Am. Guaranty Life Ins. Co.,

6 722 F.2d 1498, 1500 (9th Cir. 1984), overruled on other grounds by In re McLinn,

7 739 F.2d 1395 (9th Cir. 1984) (“Interpretative constructions of a statute which would

8 render some words surplusage, defy common sense, or lead to mischief or absurdity

9 are to be avoided.”); see also Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d

10 908, 929 (9th Cir. 2004) (“[C]ourts are especially reluctant to discard as surplusage

11 the ‘pivotal’ words of a statute.” (citing Duncan v. Walker, 533 U.S. 167, 174 12 (2001))).23

13

Third, Congress, after identifying only the San Diego project as a priority from

14 1996 thru 2005, decided to identify many more priorities in 2006 and 2007. These

15 subsequent amendments to § 102(b)(1), adopting significantly different requirements

16 within a fourteen month span, see supra, Background § I (discussing differences

17 between approaches to § 102(b)), further demonstrate that this subsection merely

18 identifies reflects Congress’ shifting priorities. While Plaintiffs argue that § 102

19 simply becomes dormant whenever there is no unfinished § 102(b) project, cf. Ctr. Br. 20 at 28 n.20,24 the better reading is that § 102(a) remains available to address locations

21

22 23 The Center advances another meritless textual argument—that Defendants’ reading

cannot be reconciled with § 102(b)(2)-(4) which specifically address “easements, 23 safety features, and appropriations,” Ctr. Br. at 18, only for projects identified in

24 § 102(b)(1). There is no conflict because § 102(a) can logically be implemented

without relying on the instructions in § 102(b)(2)-(4). For example, DHS has 25 authority to acquire easements through 8 U.S.C. § 1103(b), and thus need not rely on

26 § 102(b)(2), which merely instructs DHS to use that separate authority to “promptly

acquire such easements as may be necessary to carry out [§ 102(b)].” 27
24 Plaintiffs’ claim that “DHS has fulfilled” the § 102(b)(1) requirements stemming 28 from the 2006 and 2007 amendments, Ctr. Br. at 27-28 nn.19-20, Cal. Br. at 22 &

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1 not prioritized by Congress. See infra Arg. § III(B)(2). Attempting to show that

2 Defendants’ approach “leads to absurd results,” Plaintiffs turn to wild hypotheticals

3 about DHS attempting to begin construction “away from the immediate border” or

4 “build a dam across the Bering Strait.” Ctr. Br. at 21-22. But at bottom, Plaintiffs are

5 simply incredulous that Congress could have meant what the plain text of the statute

6 indicates—ongoing authority to “bypass any laws for any border barrier or road

7 construction project,” Ctr. Br. at 21, where necessary to ensure expeditious

8 construction to deter illegal entry. Because that plain meaning is not absurd or

9 inconsistent with the purpose and structure of the statute, the Court cannot conclude—

10 especially under ultra vires review’s deferential standard—that Plaintiffs’

11 interpretation is mandatory.

12

To the extent that the Court wishes to look beyond the plain meaning of the

13 statutory text, the legislative history is of no help to Plaintiffs’ interpretation. First, as

14 a matter of statutory construction, “[w]hen the words of a statute are unambiguous . . .

15 judicial inquiry is complete.” Aragon-Salazar, 769 F.3d at 704. But in any event,

16 Plaintiffs can do no more than show that “the expansion of the waiver authority was

17 catalyzed by, and intended to address, the delay in completion of the San Diego

18 fence.” Ctr. Br. at 25.25 It is no surprise that the sponsors and proponents of the bill

19 talked about San Diego. See Ctr. Br. at 23-24 (collecting citations); Coal. Br. at 18-19

20

21 n.13, is irrelevant because DHS does not ground its waiver determination in § 102(b).

22

Defendants do not concede that these requirements have no current significance, but do not address the matter further here because nothing turns on it.

23 25 The Center’s citation of the title of House bill H.R. 1268, Ctr. Br. at 23, is entitled

24 to no weight because the language Plaintiff emphasizes was removed from the title in

the final legislation, see Pub. L. No. 109-13, Div. B—a fact pointed out in 25 Defendants’ opening brief to which the Center offered no response. That title,

26 therefore does not represent the intent of Congress as a whole. See also Northstar

Financial Advisors, Inc. v. Schwab Investments, 615 F.3d 1106, 1120 (9th Cir. 2010) 27 (“[T]he Supreme Court has cautioned that the title of a statute and the heading of a

28 section cannot limit the plain meaning of the text.”).

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1 (same).26 But the catalyst for congressional action often does not define the outer

2 limits of that action. Here, Congress could easily have crafted language that simply 3 mandated the relevant construction near San Diego.27 Instead, Congress adopted a far

4 broader approach by establishing a general mandate in § 102(a) that was not limited to

5 a single project and by extending § 102(c)’s waiver authority to any actions or

6 decisions “under this section.” The conference report—generally considered the best

7 evidence of legislative intent, see Nw. Forest Resource Council v. Glickman, 82 F.3d

8 825, 835 (9th Cir. 1996)—confirms that § 102 applied beyond San Diego by

9 explaining that it “provides for construction and strengthening of barriers along U.S.

10 land borders.” H.R. Rep. 109-72 at 170 (May 3, 2005); see also id. at 171 (describing

11 both the original and amended waiver authority as “ensur[ing] expeditious

12 construction of barriers and roads” and “the expeditious construction of security

13 infrastructure along the border”). The breadth of § 102(c) was repeatedly noted by

14 opponents of the bill and was not contradicted by its sponsors. See, e.g., Ex. 6, 151

15 Cong. Rec. H459 (Feb. 9, 2005), ECF No. 18-2 (statement of Cong. Jackson-Lee)

16 (“[The waiver provision] so broad that it would not just apply to the San Diego border

17 fence that is the underlying reason for this provision. It would apply any other barrier

18

19

20

26 The Coalition Plaintiffs also cite a Congressional Budget Office estimate that was read into the record. The fact that the waiver provision was estimated to “probably

21 not impose significant additional costs on state, local, or tribal authorities,” 151 Cong.

22

Rec. H438 (Feb. 9, 2005), does not indicate that the bill’s text extended no farther than the San Diego project.

23 27 Indeed, the Center notes that in the “previous House bill,” the “waiver authority

24 [was] limited to completion of the San Diego border fence.” Ctr. Br. at 24 n.17 (citing

H. Amdt. 800). That amendment to the 9/11 Recommendations Implementation Act 25 would have adopted a very specific approach—“the tracts of land described in

26 subsection (b) shall be exempt from the requirements of the [statutory] provisions

listed in subsection (c).” Ex. 5, 150 Cong Rec. H8898 (Oct. 8, 2004). This suggests 27 that Congress, by not carrying forward 2004’s narrow approach, deliberately adopted

28 the language it chose in 2005.

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1 or fence that may come about in the future.”).28 These observations, repeated by

2 opponents at least five times in two days, were not merely “fears and doubts of the

3 opposition” that can be dismissed, Ctr. Br. at 23 n.16 (quoting Schwegmann Bros. v.

4 Calvert Distillers Corp., 341 U.S. 384, 394-95 (1951)), but evidence that the broad

5 import of the plain text was understood during the legislative debate. From this record

6 one simply cannot conclude that the triggering events for passage of the waiver

7 provision—litigation delaying San Diego border infrastructure construction—should

8 be interpreted to limit the otherwise plain text of the Act. See United States v. Meeks,

9 366 F.3d 705, 720 (9th Cir. 2004) (“Given the clarity of the text of the statute and the

10 ambiguous nature of the legislative history, we see no reason to engage in the crude

11 guesswork of eschewing the statute's plain language in favor of murky legislative

12 history.”); Student Loan Fund of Idaho, Inc. v. U.S. Dep’t of Educ., 272 F.3d 1155,

13 1165 (9th Cir. 2001) (“[L]egislative history which does not demonstrate a clear and

14 certain congressional intent cannot form the basis for enjoining regulations.”).

15

16

17

18 28 See also id. H454 (Feb. 9, 2005) (Statement of Cong. Conyers) (“waiving all Federal laws concerning construction of barriers and fences anywhere within the
19 United States”); 151 Cong. Rec. H554 (Feb. 10, 2005) (statement of Cong. Harman)
20 (“[T]he reach is beyond the San Diego border. According to the language in this legislation, it is all areas along and in the vicinity of our international borders with
21 both Mexico and Canada.”); id. H556 (Feb. 10, 2005) (Cong. Farr submitting
22 memorandum which observed that the waiver authority “seem[s] to apply to all the barriers that may be constructed under the authority of §102 of IIRIRA (i.e., barriers
23 constructed in the vicinity of the border and the barrier that is to be constructed near
24 the San Diego area)”); id. H559 (statement of Cong. Udall) (objecting to bill because “the language of the bill is not limited to the construction of a fence in [San Diego]”
25 but instead includes “all laws for all U.S. borders”). Indeed, members of Congress
26 similarly noted that the 1996 version of § 102(c) also extended beyond San Diego. See Ex. 4, 142 Cong. Rec. H11076 (Sept. 25, 1996), ECF No. 18-2 (statement of Rep.
27 Saxton) (“[T]he way this section is written, the exemption applies to the entire border
28 of the United States, not just the California-Mexico border near San Diego.”).

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1

2. Plaintiff cannot show that § 102(c) waiver authority has

unambiguously expired 2

3

Plaintiffs also advance two arguments that the § 102(c) waiver authority has

expired. They claim that the phrase “necessary to ensure expeditious construction” in 4

§ 102(c)(1) sets a time limit in relation to the date the waiver provision was enacted in 5

2005. See Ctr. Br. at 26 (“as soon as possible after the law’s enactment”); see also 6

Cal. Br. at 23. They also argue that § 102(b)(1)(B)’s deadline for completing 7

8 construction in “[p]riority areas” acts “as a de facto sunset clause on the waiver

9 authority,” and perhaps all of § 102. Ctr. Br. at 27; Cal. Br. at 21-23. Neither

argument rises to the ultra vires standard, which requires showing that “the agency’s 10

error is patently a misconstruction of the Act.” Griffith, 842 F.2d at 493. 11

Nothing in the text of the Act demands the conclusion that Congress intended 12

13 the waiver authority to sunset. Looking first at § 102(c)—as enacted in 1996 and

14 expanded in 2005—the phrase “ensure expeditious construction” most plausibly

includes timely construction after the Secretary (formerly the Attorney General) 15

determines that a construction project is “necessary . . . to deter illegal crossings” 16

under § 102(a). See § 102(c)(1); see also Pub. L. No. 104-208, Div. C, Title I 17

18 § 102(c) (as originally enacted). Of course, it would also include timely construction

19 of the projects Congress specified in § 102(b), but—so long as § 102(a) provides

construction authority as established above, see infra Arg. § III(B)(1)—there is no 20

textual reason to conclude that “expeditious construction” refers only to § 102(b) 21

projects. Indeed, as long as Congress continues to appropriate money for such 22

23 projects, it stands to reason that CBP should seek to ensure expeditious construction

of them pursuant to the terms of § 102.29 That is not to say that all border 24

25 29 See, e.g., Consolidated Appropriations Act, 2017, Pub. L. No. 115-31, Div. F, Title
26 VI, 131 Stat. 135, 434 (May 5, 2017) (appropriating $341 million “to replace

27 approximately 40 miles of existing primary pedestrian and vehicle border fencing along the southwest border . . . and to add gates to existing barriers” and $77 million
28 “for new border road construction”); DHS Appropriations Act, 2015, Pub. L. No. 114-

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1 infrastructure construction requires a waiver. But § 102(c)(1) means at least that

2 waivers can be issued when “expeditious construction” of projects identified by the

3 Secretary or Congress would not occur in the absence of a waiver.

4

Plaintiffs’ argument that the December 31, 2008 deadline in § 102(b)(1)(B)

5 applies generally to § 102(c) or § 102 as a whole is wholly implausible. Congress

6 plainly expected construction under § 102 to continue after the end of 2008. It set this

7 deadline in December 2007 to ensure that 370 miles of construction in “[p]riority

8 areas” was completed within one year. IIRIRA § 102(b)(1)(B). But it simultaneously

9 required the Secretary to “construct reinforced along not less than 700 miles of the

10 southwest border.” Id. § 102(b)(1)(A). Thus, Congress required that about half of the

11 specified construction be completed in the first year after enactment. Because

12 Congress provided no deadline for completion of the other 330 miles (or more)

13 “where fencing would be most practical and effective,” id. § 102(b)(1)(A), the plain

14 implication is that this construction could be completed after 2008. And there is no

15 reason that § 102(c) waivers could not be issued to expedite construction for these 330

16 miles, let alone construction authorized pursuant to § 102(a).

17

There is simply no justification for attempting to turn provisions Congress

18 designed to maximize DHS’s flexibility,30 especially as compared with very specific

19 construction locations Congress had specified in 2006, see Pub. L. No. 109-367, § 3,

20 into a “de facto sunset clause.” Ctr. Br. at 27. Plaintiffs cite no case where a court

21 found a time limit specified for one component of a statute to implicitly foreclose later

22

23 4, 129 Stat. 39, 42 (Mar. 4, 2015) (appropriating $382 million “[f]or expenses for 24 border security fencing, infrastructure, and technology”).
30 Plaintiffs’ citation to § 102(b)(1)(B)(i)’s provision that “authority to determine other 25 mileage shall expire on December 31, 2008” is a red herring. This provision simply 26 provided the Secretary with flexibility to determine that an amount other than 370
miles (perhaps more, perhaps less) should be used for the priority construction 27 segment, while emphasizing that any such decision could not delay completion of that 28 priority construction by December 31, 2008.

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1 use of the rest of the statute. Indeed, that would turn ordinary principles of statutory

2 construction on their heads. Congress’s choice to include one temporal deadline

3 suggests that if Congress intended the remaining authority in the statute to sunset, it

4 would have written that in the text.

5

And contrary to Plaintiffs’ claims, see, e.g., Coal. Br. at 16, the Secretary’s

6 necessity determination readily meets the textual standard here. Congress crafted the

7 waiver provision because litigation by environmental groups and opposition from

8 California state agencies was preventing “expeditious construction.” See, e.g., H.R.

9 Rep. 109-72 at 171 (May 3, 2005) (Conf. Rep.) (“Continued delays caused by

10 litigation have demonstrated the need for additional waiver authority with respect to

11 other laws that might impede the expeditious construction of security infrastructure

12 along the border.”); see also 151 Cong. Rec. H557 (Feb. 10, 2005) (statement of

13 Congressman Royce); Walls & Waivers Hearing, 110th Cong. 8 (statement of Rep.

14 Hunter). The vigorous opposition Plaintiffs have displayed here in filing three

15 lawsuits likewise suggests that construction today would be substantially delayed in

16 the absence of a waiver. In addition to the delay of litigation, Congress was well

17 aware that the formal procedures for laws like NEPA and the ESA have been used to

18 significantly delay major infrastructure projects, both public and private, for years

19 even before the commencement of litigation, in the hope of stopping a given project

20 altogether. Plaintiffs have not suggested—and cannot—that expeditious construction

21 would occur in the absence of a waiver.

22

3. Plaintiff cannot show that § 102(c) unambiguously requires

that the Federal Register notice of a waiver determination

23

include detailed “findings”

24

California argues that the waiver determinations at issue here “are invalid

25 because the Secretary failed to make the requisite findings to show that the projects

26 comply with the requirements of Section 102.” Cal. Br. at 23. But nothing in

27 § 102(c) requires the Secretary to explain the basis for the determination. Instead, the

28

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1 Act requires only that the Secretary’s decision be “published in the Federal Register,”

2 § 102(c)(1), which has been done here. Congress explained that the limited purpose

3 of the publication requirement was to “ensur[e] appropriate public notice of such

4 determinations,” H.R. Rep. 109-72, at 170 (May 3, 2005) (Conf. Rep.), without any

5 suggestion that the notice need include a detailed rationale or facilitate judicial review.

6 Indeed, two aspects of the IIRIRA compel the conclusion that, unlike ordinary actions

7 subject to review under the APA, see, e.g., Ctr. for Biological Diversity v. Bureau of

8 Land Mgmt., 833 F.3d 1136, 1150 (9th Cir. 2016), the agency need not provide a

9 rationale sufficient to enable arbitrary and capricious review. First, Congress barred

10 all non-constitutional claims. See supra Arg. § I. Challenges to the Secretary’s

11 application of the statutory criteria are not constitutional claims, thus the rationale for

12 that application is not necessary to facilitate the limited judicial review available.

13 Second, the Act makes clear that the determination is made “in [the] Secretary’s sole

14 discretion.” IIRIRA § 102(c)(1); see also Spencer Enterprises, Inc. v. United States,

15 345 F.3d 683, 690 (9th Cir. 2003) (observing that “many of the other provisions of the

16 IIRIRA . . . do in fact specify that particular decisions are within the sole or

17 unreviewable discretion of the Attorney General”). Thus, even if Congress had not

18 expressly barred judicial review, the waiver determination itself would not be subject

19 to judicial review because it is “committed to agency discretion by law.” 5 U.S.C.

20 § 701(a)(2); cf. Great Old Broads For Wilderness v. Kempthorne, 452 F. Supp. 2d 71,

21 81 (D.D.C. 2006) (concluding § 701(a)(2) applied “where Congress provided for

22 “determin[ation of] the priority and timing for completing required environmental

23 analysis of grazing allotments” “in [the Secretary’s] sole discretion”). It is clear that

24 Congress intended the Secretary’s rationale to be unreviewable.

25

Ultra vires review should, at most, reach no further than confirming that the

26 Secretary made the determination on the basis of the statutory criteria. See IIRIRA

27 § 102(c)(1) (granting the Secretary authority “to waive all legal requirements such

28

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1 Secretary . . . determines necessary to ensure expeditious construction of the barriers

2 and roads under this section”). See Staacke, 841 F.2d at 281 (looking only for

3 violation of “a clear statutory mandate or prohibition”); Am. Airlines, 176 F.3d at 293

4 (“a plain violation of an unambiguous and mandatory provision of the statute”). Here,

5 it is plain that the Secretary and Acting Secretary’s determinations were made on the

6 basis of the statutory criteria. Each waiver determination concluded:

7

 that the specific project areas are “area[s] of high illegal entry,”

8

see 82 Fed. Reg. at 35985 (“I determine that the following area . . . within the United States Border Patrol’s San Diego Sector . . . is

9

an area of high illegal entry: Starting at the Pacific Ocean and

10

extending to approximately one mile east of Border Monument 251.”); id. at 42830 (“I determine that the following area . . .

11

within the United States Border Patrol’s El Centro Sector is an

12

area of high illegal entry . . . : Starting at the Calexico West Land Port of Entry and extending approximately three miles

13

westward.”);

14

 that the projects “will further Border Patrol’s ability to deter and

15

prevent illegal crossings;” 82 Fed. Reg. at 35984, 42830;

16

 that there “is presently a need to construct . . . the infrastructure

projects described in Section 1,” 82 Fed. Reg. at 35985, 42830

17  that these projects involve “physical barriers and roads” as those

18

terms are used in the Act, id.; and

19

 that it is “necessary that I exercise the authority that is vested in

20

me by section 102(c)” in order to “ensure the expeditious

construction of the barriers and roads,” id. 21

These findings are sufficient to satisfy ultra vires review. And these determinations, 22

well within the Secretary’s expertise and delegated “sole discretion,” should not be 23

subject to judicial second-guessing. 24

Plaintiffs cite no caselaw requiring more from an agency pursuant to ultra vires 25

review. Instead, they rely exclusively on cases applying the APA’s arbitrary and 26

capricious standard. See Organized Village of Kake v. USDA, 795 F.3d 956, 966-67 27

(9th Cir. 2015) (invalidating regulation for which agency had failed to provide “good 28

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1 reasons” because “[u]nexplained inconsistency between agency actions is a reason for

2 holding an interpretation to be an arbitrary and capricious change”); Dickson v.

3 Secretary of Defense, 68 F.3d 1396, 1405 (D.C. Cir. 1995) (“Because the Board failed

4 to provide anything approaching a reasoned explanation for its decisions, we hold that

5 the waiver determinations were arbitrary and capricious [under 5 U.S.C. § 706].”).31

6 Arbitrary and capricious review was created by the APA, and is not available where

7 the APA does not apply. See, e.g., Dubbs v. CIA, 866 F.2d 1114, 1121 (9th Cir. 1989)

8 (characterizing Supreme Court decision to hold that “judicial review under an

9 ‘arbitrary and capricious’ standard to be precluded because” the “committed to agency

10 discretion” exception to APA review applied); Tashima v. Admin. Office of U.S.

11 Courts, 719 F. Supp. 881, 886 (C.D. Cal. 1989), aff’d, 967 F.2d 1264 (9th Cir. 1992)

12 (declining to determine whether action was “arbitrary, capricious and an abuse of

13 agency discretion” because the action “was not reviewable under the APA”).

14

4. Plaintiffs cannot show that key statutory terms unambiguously

preclude the waiver determinations at issue here 15

Finally, Plaintiffs—under the guise of ultra vires review—press the Court to 16

engage in ordinary APA review of numerous phrases in § 102. See Ctr. Br. at 28; Cal. 17

Br. at 16-18, 20-21; Coal. Br. at 8-11, 14-16.32 None of the statutory phrases 18

19 unambiguously preclude the use of § 102(c) waiver authority for the construction

projects at issue here. 20

21

22

31 Gonzalez v. Oregon, 546 U.S. 243 (2006) is irrelevant because it is not about the sufficiency of agency findings. Instead, the passage California cites merely addresses

23 whether an agency has “special authority to interpret its own words” when its

24 regulation “merely . . . paraphrase[s] the statutory language.” Id. at 257. 32 As discussed above, the Coalition Plaintiffs also seek to press some of these
25 arguments as a matter of ordinary APA review, which cannot be correct because the

26 only final agency action being challenged is the very issuance of a waiver

determination Congress has exempted from non-constitutional judicial review. See 27 supra, Arg. § III(A)(1) n.5. Those arguments are addressed here through the lens of

28 ultra vires review.

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1

a. “Additional barriers and roads”

2

Plaintiffs argue that the § 102(a)’s provision for “install[ing] additional physical

3 barriers” exclusively means “installing fencing in areas where none existed at the

4 time.” Cal. Br. at 19-20; see also Coal. Br. at 14 (a “replacement fence . . . is not an

5 ‘additional physical barrier’”).33 This cramped reading of the Act is not the best

6 reading, let alone the exclusive reading.

7

Section 102(a) gives the Secretary authority “to take such actions as may be

8 necessary to install additional physical barriers and roads (including the removal of

9 obstacles to detection of illegal entrants).” Plaintiffs cannot show that their strict

10 dichotomy between “replacement” and “additional” is required. See Coal. Br. at 14

11 (“‘[R]eplacement’ results in no net gain (no ‘addition’) because the new barrier is

12 merely a substitute or successor to the fence it is replacing.”). Dictionary definitions

13 of “additional,” include flexible words such as “more,” “extra,” and “added.” See,

14 e.g., Oxford English Dictionary, 2d ed. 1989 (“Existing in addition, coming by way of

15 addition; added”); Websters New World College Dictionary, 3rd ed. 1988 (“added,

16 more, extra”); Random House College Dictionary, revised ed. 1980 (“added,

17 supplementary”); cf. Cal. Br. at 20 (quoting similar definition from Webster’s 3d New

18 Int’l Dictionary, 2002). Congress itself indicated that adding features to existing

19 infrastructure comes within the scope of § 102(a) when it included installation of

20 “lighting, cameras, and sensors” among the construction activities to be performed

21 “[i]n carrying out” § 102(a). See IIRIRA § 102(b)(1)(A).

22

Here, Defendants are replacing fencing installed in the 1990s with significantly

23 taller barriers that also have other features making them more operationally effective.

24

25 33 While the Center’s complaint raised similar arguments, see, e.g., 2d Am. Compl. ¶ 26 134, ECF No. 16, the Center offered no response to Defendants’ arguments on this
point and did not press such a theory in its summary judgment brief. Accordingly, the 27 Center has abandoned this claim. See Herrera v. Allianceone Receivable Mgmt., Inc., 28 No. 14-1844, 2016 WL 7048318, at *6 n.5 (S.D. Cal. Dec. 5, 2016).

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1 See, e.g., 82 Fed. Reg. at 42830 (“The existing fourteen foot, landing mat style

2 fencing will be replaced with an eighteen to twenty-five foot barrier that employs a

3 more operationally effective design that is intended to meet Border Patrol’s

4 operational requirements.”).34 Plaintiffs may not rely on the narrowest possible

5 interpretation of the word “additional” to overturn Congress’s expansive legislative

6 intent. As the legislative history makes clear, the term readily includes several types

7 of addition:

8

 construction where no barrier currently exists on the border, see

9

H.R. Rep. 104-828, at 200 (Sept. 24, 1996) (Conf. Rep.) (calling “for extension of the new fencing” for the full 14 miles near San

10

Diego);

11

 new barriers parallel to existing ones, see id. (calling for

12

construction of “second and third fences” near San Diego); Cal. Br. at 19 (conceding that “Congress sought to add new layers of

13

fencing”);

14

 adding “more” to an existing barrier, e.g., making it higher or more

15

resistant to illegal entry, see H.R. Rep. 109-72 at 170 (May 3,

2005) (Conf. Rep.) (explaining that § 102 “provides for

16

construction and strengthening of barriers along U.S. land borders”

17

(emphasis added)); Ex. 9, 152 Cong. Rec. S9871 (Sept. 21, 2006),

ECF No. 18-2 (statement of Sen. Kyl) (discussing using § 102

18

authority for “replacing the so-called landing mat fencing,” in part

19

because it “is deteriorating,” is “very difficult to repair because of

its age,” and is disadvantageous because Border Patrol “can’t see

20

through it.”).

21 Plaintiffs cannot reasonably accept the first two of these categories and reject the third 22 as clearly outside the scope of the text and of congressional intent. Moreover, 23 Plaintiffs’ interpretation would impose impractical burdens on DHS that Congress did 24

25 34 See also GAO Report 17-331 at 11 (attached as Cal. Ex. 1, ECF No. 30-4) 26 (photographs contrasting “legacy landing mat style pedestrian fencing” with “modern
bollard style pedestrian fencing”); CRS Report at 1-2 (Sept. 21, 2006) (attached as 27 Cal. Ex. 3, ECF No. 30-4) (“The San Diego primary fence was completed in 1993 . . . 28 . [and] was constructed of 10-foot-high welded steel army surplus landing mats.”).

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1 not intend. Because—under Plaintiffs’ view—DHS could not use § 102 authority to

2 enhance any barrier or road once constructed, DHS would need to accurately project

3 its needs far into the future before undertaking construction. This is especially

4 troubling for areas where DHS could not construct or modify infrastructure at all

5 without waiver authority. See, e.g., Walls & Waivers Hearing, 110th Cong. 17

6 (explaining that in “national wildlife refuges and wilderness areas,” other statutes

7 prohibit the Department of the Interior from “permitting the construction of certain

8 border security infrastructure” in the absence of a waiver). Congress is well aware

9 that border security addresses a dynamic environment, with evolving threats and ever-

10 changing transit patterns. Accordingly, it is implausible that Congress gave DHS only

11 one shot at improving border security at any given location under § 102.

12

Thus, with both text and legislative history against them, Plaintiffs cannot show

13 that the replacement projects at issue here clearly fall outside the scope of the statutory

14 text. See Griffith, 842 F.2d at 494 (rejecting ultra vires challenge where agency’s

15 approach was “not the only possible interpretation of the statutory language” but

16 “surely a colorable one”).

17

b. “Areas of high illegal entry”

18

Plaintiffs also challenge the Secretary’s determination that these sectors and

19 project areas are “areas of high illegal entry.” Ctr. Br. at 28; Coal. Br. at 8-10, 14-15;

20 Cal. Br. at 16-18. Plaintiffs do not employ tools of statutory construction in seeking

21 to discern what “high illegal entry” means, but instead argue that the substantial

22 decline in the apprehension of illegal aliens along the border in general and in the San

23 Diego and El Centro Sectors in particular preclude any finding of continued high

24 illegal entry. See id. This argument should be rejected.

25

Congress set no specific threshold for “high illegal entry.” In the most recent

26 amendment to § 102, however, Congress did make clear that one of the Act’s purposes

27 is “to achieve and maintain operational control over the international border.” §

28

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1 102(b)(1)(D); see also id. § 102(b)(1)(A) (“to gain operational control of the

2 southwest border”). And Congress has expansively defined “operational control” of

3 the border—“the prevention of all unlawful entries into the United States, including . .

4 . unlawful aliens, . . . narcotics, and other contraband.” Pub. L. No. 109-367 § 2(b)

5 (emphasis added).35 Plaintiffs’ statistical arguments cannot be reconciled to these

6 Congressional goals. Before Congress amended § 102 in 2006 and 2007,

7 apprehensions of illegal aliens had fallen significantly from their levels in the 1990s

8 and early 2000s. See, e.g., Coal. Ex. 1 at 1, ECF No. 29-3 (showing that by 2006,

9 apprehensions in the San Diego sector had fallen from more than 480,000 to less than

10 150,000, and that apprehensions across the southwest border had fallen almost thirty

11 percent). Yet Congress, when it twice amended § 102 at that time, did not suggest

12 that there was no longer “high illegal entry” along the border. Instead, Congress

13 provided more resources and requirements to address what it viewed as an ongoing

14 problem. This suggests that it would be unwarranted for a court to set some absolute

15 threshold for “high illegal entry” based on a comparison to the flow of illegal

16 immigration at the time the statute was enacted or amended.36

17

35 Congress’s definition of “operational control” demonstrates that Plaintiffs err in 18 suggesting that “high illegal entry” is limited to the crossing of individual illegal

19 aliens into the United States. See Cal. Br. at 17 (disputing that “the amount of drugs

20

seized correlates with the number of illegal entries”). Congress has made clear that such entries include “narcotics, and other contraband.” Pub. L. No. 109-367 § 2(b).

21 36 It should also be noted that apprehension data is an incomplete measure of illegal

22 entry. See, e.g., DHS Office of Immigration Statistics, Efforts by DHS to Estimate

Southwest Border Security between Ports of Entry at 1 (Cal. Ex. 8, ECF No. 30-5) 23 (noting that “it is difficult to precisely quantify illegal flows because illegal border

24 crossers actively seek to evade detection, and some flows are undetected”); id. at 15

(noting that to compare apprehension data from year to year or location by location, 25 one has to assume that the “apprehension rate is constant,” i.e., that similar

26 percentages of those who attempt to cross are apprehended). Thus, the number of

apprehensions in the sectors at issue here does not reflect all illegal entries in those 27 sectors. DHS is seeking to reintroduce operational control as an enforcement

28 measurement, with subsidiary metrics. See id. at 18.

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1

Measured against Congress’s definition of “operational control,” Plaintiffs

2 cannot establish that these are not areas of high illegal entry. The Secretary noted

3 publically-available statistics showing that the San Diego and El Centro Sectors

4 remain a problem, with “over 31,000 illegal aliens” and “over 19,000 illegal aliens,”

5 apprehended in those sectors respectively in fiscal year 2016, and large amounts of

6 illegal drugs seized. See 82 Fed. Reg. at 35984, 42830. Both sectors are in the upper

7 third of sectors nationwide, as ranked by number of apprehensions. See Ex. 18, U.S.

8 Border Patrol, Sector Profile – Fiscal Year 2016 (link), ECF No. 18-2 (fourth and

9 seventh, respectively). These facts certainly exceed whatever lower threshold could

10 be set for “high illegal entry.”37 And the legislative history for the Act demonstrates

11 that Congress was well aware that this corridor between San Diego and Tijuana has

12 long been a source of significant illegal entry into the United States. See, e.g., 151

13 Cong. Rec. H554-555 (statements of Cong. Hunter, Cong. Sensenbrenner); Ex. 5, 150

14 Cong. Rec. H8899 (Oct. 8, 2004) (statement of Cong. Hunter), ECF No 18-2.

15

Plaintiffs also object to the use of sector-wide statistics to support the finding of

16 high illegal entry. See, e.g., Cal. Br. at 17 (demanding “factual findings to

17 demonstrate that these two areas are priority areas with the . . . sectors”). But nothing

18 in the Act requires the Secretary to publish more granular data to prove that the

19 finding committed to his or her “sole discretion” was warranted. As explained above,

20 the Federal Register notice provided for by § 102(c) need only state the Secretary’s

21 determination, not exhaustively set out the information upon which it was based. See

22 supra, Arg. § III(B)(3). Thus, the burden is on Plaintiffs to show that the Secretary’s

23 conclusion was clearly improper. And this they cannot do. Congress itself frequently

24

25 37 Plaintiffs also suggest that “high illegal entry” could be measured relative to “the 26 current rates of illegal entry across all southwest border sectors.” Cal. Br. at 18. This
appears to suggest that DHS should only be able to apply § 102 to the sector with the 27 highest rate of illegal entry. But the statutory term is “high” not “highest,” making 28 such an approach unwarranted.

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1 referred to sector-wide statistics in discussing the need for such projects. See, e.g.,

2 152 Cong. Rec. S9873 (Sept. 21, 2006) (statement of Sen. Kyl) (citing sector wide

3 statistics in support of Secure Fence Act); 151 Cong. Rec. H453 (Feb. 9, 2005)

4 (statement of Cong. Hart) (relying on San Diego Sector-wide statistics to support

5 completion of three mile segment of border barrier under REAL ID Act); id. H467

6 (statement of Cong. Cox) (same); id. H471 (statement of Cong. Bono) (same). Sector-

7 wide data has generally been considered the most reliable because entry attempts shift

8 dynamically within a sector based on many factors, including the allocation of

9 enforcement resources. See, e.g., Ex. 11, CRS, Border Security: Barriers Along the

10 U.S. Int’l Border at 12-13 (Mar. 16, 2009), ECF No. 18-2 (noting that evidence

11 suggests “that as enforcement efforts increased in the two westernmost stations [in the

12 San Diego Sector] . . . the flow of illegal migration pushed eastward to the other

13 stations in the San Diego sector”). And when apprehensions occur significantly

14 inland from the border, it can be difficult to determine precisely where the crossings

15 occurred. Plaintiffs’ efforts to discredit the Secretary’s conclusion that the project

16 areas remain areas of high illegal entry fall far short. They cannot contradict that

17 conclusion by pointing to data from two Border Patrol stations from 1992-2004. See

18 Cal. Br. at 18 (citing Cal. Ex. 22 at 10-15). This data is more than ten years old, and

19 does not even include the entire San Diego project area.38 See CBP, Chula Vista

20 Station (Mar. 11, 2014) (link) (attached as Ex. 21) (explaining that the Chula Vista

21 Station’s responsibility extends only to the Otay Mesa port of entry, and thus does not

22 include the easternmost portion of the project area). Nor can statistics about

23 Defendants’ deployment of Border Patrol agents, see Coal. Br. at 9, conclusively show

24 38 The Coalition Plaintiffs assert without evidence that “there should be little to no
25 illegal crossings occurring in these areas” due to the existing fences. See Coal. Br. at 26 14. But reports cited by Plaintiffs demonstrate that illegal crossings do occur at
fenced locations and that the legacy landing mat fencing results in more illegal entry 27 than more recent barrier styles. See GAO Report 17-331 at 48 (Cal. Ex. 1 at 12, ECF 28 No. 30-4).

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1 that areas with relatively lower deployments do not have high illegal entry—human

2 resources are only one aspect of DHS’s border response. And the “apprehension rate”

3 data Plaintiffs cite does not support their conclusion that these sectors had better rates 4 “than any other southwest sector,” Coal. Br. at 9,39 let alone that the sectors can be

5 written off as no longer having any areas of “high illegal entry.” In sum, the

6 Secretary’s determinations should be respected and left undisturbed.

7

c. “Deter illegal crossings”

8

The way Plaintiffs attempt to thwart Congressional intent is especially on

9 display in their argument that the Court should second-guess the Secretary’s

10 conclusion that the projects “will further Border Patrol’s ability to deter and prevent

11 illegal crossings.” 82 Fed. Reg. at 35984, 42830. Plaintiffs criticize any further use

12 of physical barriers, claiming that certain data “suggest[s] that barriers may not be the

13 most effective means of preventing illegal immigration.” Coal. Br. at 10. Plaintiffs

14 thus ask the Court to step outside the judicial role and weigh the wisdom of

15 Congress’s approach to border security. It cannot be that, in weighing whether an

16 action within the agency’s expertise and sole discretion is ultra vires, a court can rely

17 on such nebulous factors. See, e.g., Pacific Maritime Ass’n, 827 F.3d at 1208 (holding

18 that challenged action must “contravene clear and mandatory statutory language”).

19

Plaintiffs also claim that the border wall prototypes which have been

20 constructed will not deter illegal entry. In this they simply contradict the Secretary’s

21 conclusion that these prototypes serve two legitimate purposes under § 102—(1) the

22 prototypes are “physical barriers” that are intended “to deter illegal crossings” in the

23

24 39 This assertion in the Coalition Plaintiffs’ brief is not supported by their Statement of Fact No. 35, which instead addressed only apprehension rates in “zones with no
25 fencing.” That measure is not the one most relevant here where fencing is involved.
26 Regardless, an “apprehension rate” describes the degree to which it is known or estimated that illegal entrants were captured, and Plaintiffs’ own data suggest that that
27 even in the best case scenario, a significant percentage of entrants evade capture and
28 get through.

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1 area, see 82 Fed. Reg. at 35985 (stating that the location and “robust physical

2 characteristics” of the prototypes “are intended to deter illegal crossings”), and (2)

3 they are actions the Secretary deemed necessary to prepare for future installation of

4 barriers. See id. (“to evaluate various design features for potential inclusion in a

5 border wall standard . . . [to be] utilized as a part of border wall construction going

6 forward”). Section 102 makes clear that the Secretary’s authority encompasses more

7 than the “physical barriers and roads” themselves, both by including whatever

8 “actions . . . may be necessary” for their installation and by illustrating the point with

9 an action that is not installation or construction at all—“removal of obstacles to

10 detection.” Id. Plaintiffs’ own speculation about whether, due to the spacing between

11 the prototypes, they will serve a deterrent effect, see Coal. Br. at 15; Cal. Br. at 16

12 n.11, is far from sufficient to overturn the Secretary’s determination on ultra vires

13 review.

14

d. “Most practical and effective”

15

California errs in suggesting that Congress—in directing DHS to determine

16 where fencing “would be most practical and effective” for purposes of the projects

17 specified in § 102(b)(1) in December 2007—was creating a limitation on the broad

18 mandate of § 102(a). See supra Arg. § III(B)(1); Cal. Br. at 20-21. Nor can they

19 show that such a standard could be judicially enforceable under ultra vires review.

20 Indeed, Congress emphasized that it was for the Secretary to determine whether “the

21 use or placement of such resources is . . . the most appropriate means to achieve and

22 maintain operational control over the international border at such location.” IIRIRA §

23 102(b)(1)(D). Lastly, California points to nothing which suggests that further

24 construction would be impractical or ineffective in these particular locations. Instead,

25 it points to general comments made by then-Secretary Kelly in a news interview and

26 the fact that California locations were not selected for additional construction in 2007

27

28

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1 and 2008. See Cal. Br. at 21.40 These points cannot overturn the Secretary’s exercise

2 of delegated discretion.

3

e. “Consultation”

4

The Coalition Plaintiffs also argue that “unless the Secretary has consulted with

5 the parties identified in subsection 102(b)(1)(C), the waiver [authority] is

6 unavailable.” Coal. Br. at 6, 10. This argument fails as a textual matter. Nothing in

7 the waiver provision is expressly or implicitly dependent on completion of the

8 consultation requirement. Nor is the waiver determination itself a subject of the

9 intended consultation. After all, Congress expressly stated that the waiver

10 determination was a matter of the Secretary’s “sole discretion.” IIRIRA § 102(c).

11

12 40 Defendants do not “concede[] that these sectors have the lowest priority for
13 infrastructure projects,” or that DHS “does not have an high priority infrastructure
14 needs in either the San Diego or El Centro sectors.” Cal. Br. at 21. California bases this claim on a predecisional, internal document that predates that waiver
15 determination by five months and does not necessarily reflect the Secretary’s ultimate
16 assessment. See Cal. Ex. 9 (presentation marked as “PREDECISIONAL/FOR OFFICIAL USE ONLY” and dated March 27, 2017). It is a privileged document that
17 is not part of the administrative record and should not be considered here. See, e.g.,
18 San Luis Obispo Mothers for Peace v. U.S. Nuclear Regulatory Comm’n, 789 F.2d 26, 44-45 (D.C. Cir. 1986) (en banc) (refusing to consider predecisional, deliberative
19 material); Forest Guardians v. Kempthorne, No. 06-2560, 2008 WL 11337359, at *1
20 (S.D. Cal. Apr. 1, 2008) (noting, without objection, that the agency withheld from the administrative record certain “documents under the deliberative process privilege”).
21 Regardless, that document merely shows that these sectors as a whole were proposed
22 as “moderate” priorities, rather than “high” or “very high” priorities, Cal. Ex. 9 at 15, and that the San Diego replacement project was recommended for various reasons,
23 including that it was a “[h]igh Sector/Station priorit[y].” Id. at 18. Then-Secretary
24 Kelly’s television interview from a location near El Paso, Texas, simply stated that “here” the agency found the existing fencing to be “remarkably effective.” See Fox
25 News, Transcript: Sec. Kelly and AG Sessions talk border security and DACA policy
26 (Apr. 20, 2017), http://www.foxnews.com/transcript/2017/04/20/sec-kelly-and-agsessions-talk-border-security-and-daca-policy.html. The Secretary did not talk
27 specifically about the San Diego or El Centro Sectors, let alone whether those areas
28 may or may not be a priority.

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1 Thus, failure to satisfy the consultation requirement cannot be treated as a condition

2 precedent that can be the basis for overturning a waiver on ultra vires review.

3

Nor can Plaintiffs separately enforce the provision because it does not give rise

4 to a private cause of action. See IIRIRA § 102(b)(1)(C)(ii) (stating that consultation

5 requirement does not “create . . . any right of action for a . . . person or entity affected

6 by this subsection”); Texas Border Coal. v. Napolitano, 614 F. Supp. 2d 54, (D.D.C.

7 2009) (concluding that “no private right of action or private remedy has been created”

8 to enforce this section). And here, where judicial review of “any actions undertaken”

9 pursuant the Secretary’s waiver authority is strictly limited, IIRIRA § 102(c)(2)(A),

10 Plaintiffs have no claim under the APA to challenge how the construction that is

11 subject to the waiver is completed.

12

Regardless, the consultation requirement should be tailored to the

13 circumstances of each project. See IIRIRA § 102(b)(1)(C)(i) (focusing on “the

14 communities and residents located near the sites at which such fencing is to be

15 constructed”). For the construction of the prototypes on a small section of federal

16 land, DHS determined that because there would be no significant impacts to

17 environmental or cultural resources, the need for consultation was minimal as well.

18 See, e.g., Memorandum, Construction and Evaluation of Border Wall Prototypes, U.S.

19 Border Patrol, San Diego Sector, California at 6 (Sept. 25, 2017) (concluding, after

20 expert survey, that prototypes project “is not likely to have any impact on cultural and

21 historical resources”); id. at 5-6 (concluding that “environmental impacts are not

22 expected to result from the Project” and addressing the likely effect on five sensitive

23 species located in the region). For the barrier replacement projects, the assessment of

24 appropriate consultation is ongoing. Thus, Defendants have not violated the

25 consultation requirement even if it were judicially enforceable.

26

In sum, each of Plaintiff’s ultra vires theories fails to justify judicial intrusion

27 on a decision Congress committed to the Secretary’s “sole discretion.”

28

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1 IV. PLAINTIFFS’ CONSTITUTIONAL CLAIMS FAIL

2

Congress expressly provided district courts authority to review constitutional

3 claims regarding “any action undertaken, or any decision made, by the Secretary of

4 Homeland Security pursuant to [§ 102(c)(1)].” IIRIRA § 102(c)(2)(A). Under

5 various constitutional theories, Plaintiffs primarily challenge Congress’ choices to (1)

6 permit the Secretary to determine which laws to waive and (2) strictly limit judicial

7 review of such waiver determinations. However, the approach taken by Congress

8 does not violate any constitutional requirement and Defendants are, accordingly,

9 entitled to summary judgment.

10

A. The Waiver Provision Does Not Violate Article I § 1

11

Plaintiffs claim that § 102(c) unconstitutionally delegates legislative power to

12 the DHS Secretary. See Ctr. Br. at 35-37; Coal. Br. at 20-27; Cal. Br. at 30-35. The

13 nondelegation doctrine is rooted in “the notion of separation of powers,” but few laws

14 violate it; the Supreme Court “has only twice invalidated legislation under this

15 doctrine, the last time being [more than] seventy-five years ago.” In re Nat’l Security

16 Agency Telecomm. Records Litig. (hereinafter “Telecomm. Records”), 671 F.3d 881, 17 895 (9th Cir. 2011). Every court to consider a nondelegation challenge to § 102(c) 18 has rejected it, beginning with a decision in this district. See Sierra Club, 2005 U.S. 19 Dist. LEXIS 44244, at *16-25; see also County of El Paso, 2008 WL 4372693, at *2-

20 4; Save Our Heritage, 533 F. Supp. 2d at 63-64; Defenders of Wildlife, 527 F. Supp.

21 2d at 126-29. Plaintiffs’ claims must likewise fail.

22

It is well established that, because Congress could not function without the

23 ability to delegate, Congress may authorize another branch of government to carry out

24 its law-making authority so long as it provides “an intelligible principle to which the

25 person or body authorized to [act] is directed to conform.” J.W. Hampton, Jr. Co. v.

26 United States, 276 U.S. 394, 409 (1928). To provide a constitutionally permissible

27 “intelligible principle,” Congress need only “clearly delineate[] the general policy, the

28

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1 public agency which is to apply it, and the boundaries of this delegated authority.”

2 Mistretta v. United States, 488 U.S. 361, 372-73 (1989).

3

Plaintiffs claim that Congress failed to delineate a “general policy” to guide the

4 delegated authority or establish sufficient “boundaries” for it.41 Plaintiffs are

5 mistaken. Congress has provided ample guidance about the policy the Secretary is to

6 be guided by in exercising the waiver authority. Section 102(a) delineates a “general

7 policy” of installing infrastructure to “deter illegal crossings in areas of high illegal

8 entry into the United States,” which § 102(c) incorporates by tying the waiver

9 authority to “expeditious construction of barriers and roads under this section.” This

10 establishes a policy to guide the Secretary: that improving border protection by

11 expediting the construction of necessary barriers and roads is a high Congressional

12 priority. See, e.g., Sierra Club, 2005 U.S. Dist. LEXIS 44244, at *20 (concluding that

13 § 102’s clearly delineated general policy is “improvement of U.S. border protection”

14 which is “a high congressional priority”); Defenders of Wildlife, 527 F. Supp. 2d at

15 127 (finding a clearly delineated general policy “to expeditiously ‘install additional

16 physical barriers and roads . . . to deter illegal crossings in areas of high illegal 17 entry’”).42 The Coalition Plaintiffs criticize Defenders of Wildlife by claiming that it

18 “conflated the policy of the authorization with the authorization itself,” thus making a

19 “circular error.” Coal. Br. at 23. But they cite no authority for this point. And neither

20

21 41 Plaintiffs thus concede that the IIRIRA sufficiently specifies who is to “apply” the

22

general policy—“the Secretary of Homeland Security.” IIRIRA § 102(c)(1); see, e.g., Coal. Br. at 22 (stating that “the Government can . . . point with clarity to the second

23 element – the public agency applying the legislation”).

24 42 The Coalition Plaintiffs suggest that these “district courts . . . could not agree on” the general policy established by § 102. Coal. Br. at 22-23. But there is no conflict
25 between the statements of general policy. One is simply a more specific version of the
26 other. Indeed, later courts found no conflict between them. See County of El Paso, 2008 WL 4372693, at *3-4 (adopting both Sierra Club’s and Defenders of Wildlife’s
27 analysis); Save Our Heritage Org., 533 F. Supp. 2d at 63 & n.2 (adopting Defenders
28 of Wildlife’s analysis and noting Sierra Club’s).

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1 logic nor precedent require Congress’ policy guidance to be entirely distinct from the

2 scope of the authorization.

3

Congress has also provided specific boundaries for its delegated authority. The

4 authority may only be exercised to “waive all legal requirements [the] Secretary . . .

5 determines necessary to ensure expeditious construction of the barriers and roads

6 under this section.” IIRIRA § 102(c)(1) (emphasis added). The first boundary is

7 geographic. Waivers may only be issued in connection with construction “in the

8 vicinity of the United States border.” Id. § 102(a) (incorporated by the “under this 9 section” cross-reference).43 The second boundary is temporal necessity. Waivers may

10 only be issued where “necessary to ensure expeditious construction” at those

11 locations. Id. § 102(c)(2). See Defenders of Wildlife, 527 F. Supp. 2d at 127

12 (concluding that Congress provided a sufficient boundary by instructing that “the

13 Secretary may waive only those laws that he determine necessary to ensure

14 expeditious construction”).

15

Plaintiffs nevertheless claim that Congress has failed to provide “substantive

16 boundaries as to which laws should be waived under what conditions or when.” Coal.

17

18 43 In Sierra Club, the plaintiffs were challenging the application of waiver authority to a construction project Congress had specifically instructed be completed—“this
19 particular 14-mile California border Triple Fence.” Sierra Club, 2005 U.S. Dist.
20 LEXIS 44244, at *21. Accordingly, that court found it easy to conclude that the Secretary was not outside the boundaries for exercise of the waiver authority. As
21 discussed above, Sierra Club should not be read to suggest that only the projects
22 specified by Congress in § 102(b) are authorized under § 102(a). See supra Arg. § III(B)(1). Similarly, Congress’ particular identification of the San Diego border area
23 at the time of the Sierra Club decision should be considered a sufficient basis for
24 rejection of those plaintiffs’ non-delegation theory, but not an essential one. Cf. Defenders of Wildlife, 527 F. Supp. 2d at 128 (paraphrasing Sierra Club’s boundary
25 analysis as involving expeditious completion “of the border fences authorized by
26 IIRIRA in areas of high illegal entry”); see also Save Our Heritage, 533 F. Supp. 2d at 61 (finding no unconstitutional delegation for construction not encompassed by
27 § 102(b) after expressly rejecting argument that “section 102(b) . . . narrow[ed] the
28 Secretary’s authority . . . derived from section 102(a)”).

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1 Br. at 23. Plaintiffs cite no authority for this supposed implementation of Mistretta’s

2 “boundaries” requirement. Indeed, their proposal is strikingly similar to one rejected

3 by the Supreme Court. Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 475 (2001)

4 (rejecting lower court’s approach, noting that “even in sweeping regulatory schemes

5 we have never demanded . . . that statutes provide a determinate criterion for saying

6 how much of the regulated harm is too much”). Nor does the “intelligible principle”

7 caselaw support their efforts to cabin the flexibility available to Congress. The

8 geographic boundary and necessity requirement together amply suffice. See, e.g.,

9 Whitman, 531 U.S. at 475-76 (holding that “necessity” standard “fits comfortably

10 within the scope of discretion permitted by our precedent”); Touby v. United States,

11 500 U.S. 160, 163 (1991) (approving delegation to the Attorney General of the

12 authority to designate a drug as a controlled substance for purposes of criminal drug

13 enforcement if doing so was “necessary to avoid an imminent hazard to the public 14 safety”).44 What Congress has crafted is not “virtually unfettered” discretion, Coal.

15 Br. at 23, but targeted flexibility. While Congress initially anticipated that NEPA and

16 the ESA could be the source of undue construction delay and thus made them

17 expressly waivable, see Pub. L. No. 104-208, Div. C, Title I § 102(c), in 2005,

18 Congress shifted to the current waiver approach after several of the current plaintiffs

19 unexpectedly used the Coastal Zone Management Act (“CZMA”) to shut down

20 construction. See Ex. 2, H.R. Rep. 109-72 at 171 (May 3, 2005) (Conf. Rep.)

21 (“Continued delays caused by litigation have demonstrated the need for additional

22 waiver authority with respect to other laws . . . such as the Coastal Zone Management

23 Act.”). Section 102 reflects Congress’ discovery that it could not sufficiently

24 anticipate the ways that existing laws would be wielded to frustrate Congress’

25 priorities. And here, where the lawsuit centers on the same three laws that had

26 44 Plaintiffs seek to distinguish these cases based on their facts, but the cases
27 demonstrate the Supreme Court’s recognition of how limited the intelligible principle
28 inquiry must be to ensure that Congress retains sufficient flexibility.

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1 Congress’ attention—NEPA and the ESA (from the beginning), and the CZMA (since

2 2005)—Plaintiffs cannot credibly claim that unaccountable discretion is the problem

3 here.

4

Plaintiffs also attack prior courts’ reliance on the fact that border infrastructure

5 implicates the Executive Branch’s significant independent control over immigration,

6 foreign affairs, and national security. See, e.g., Sierra Club, 2005 U.S. Dist. LEXIS

7 44244, at *22-23; Defenders of Wildlife, 527 F. Supp. 2d at 126, 129. It is well-

8 established in this Circuit that Congress may delegate in even broader terms in such

9 areas. See Telecomm. Records, 671 F.3d at 897 (holding that when the delegation

10 “arises within the realm of national security . . . the intelligible principle standard need

11 not be overly rigid”); see also Loving v. United States, 517 U.S. 748, 772 (1996)

12 (finding that delegations may be broader “where the entity exercising the delegated

13 authority itself possesses independent authority over the subject matter”); Knauff v.

14 Shaughnessy, 338 U.S. 537, 542-43 (1950) (“The exclusion of aliens is a fundamental

15 act of sovereignty . . . [and] is inherent in the executive power to control the foreign

16 affairs of the nation.”). Contrary to Plaintiffs’ assertion, see Coal. Br. at 25, nothing

17 in Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015) undermines this binding precedent. In

18 Zivotofsky, the Supreme Court simply expressed caution about a prior “description of

19 the President’s exclusive power,” in part because it was dicta in a case that “dealt with

20 congressionally authorized action.” Id. at 2090. Because the Executive Branch’s

21 actions here are likewise “congressionally authorized” Plaintiffs cannot evade this

22 settled conclusion.45

23

Finally, Plaintiffs argue that judicial review is essential for a delegation to be

24 upheld. See Ctr. Br. at 37; Cal. Br. at 34. Plaintiffs cannot prevail because the Ninth

25 Circuit expressly rejected the argument that statutory limitations on judicial review

26 45 Ctr. for Biological Diversity v. Mattis, 868 F.3d 803, 827 (9th Cir. 2017), cited by
27 Plaintiffs, does not suggest that Zivotofsky undermined other Ninth Circuit decisions,
28 but simply applied it to a “political question” inquiry that has no relevance here.

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1 create a nondelegation problem. See Bozarov, 974 F.2d at 1041-45. The Ninth

2 Circuit agreed with the government that “the purpose of the intelligible principle is

3 simply to channel the discretion of the executive and to permit Congress to determine

4 whether its will is being obeyed.” Id. at 1041 (“[T]he government has the better of the

5 argument.”). In that case, the Ninth Circuit rejected arguments parallel to those of

6 Plaintiffs here and concluded, “[i]n sum, we believe that the Supreme Court cases

7 upholding judicial preclusion of agency decisions, the language of the APA, and the

8 fact that the EAA involves foreign policy issues support our conclusion that the

9 EAA’s preclusion of judicial review is constitutional.” Id. at 1044. Because that

10 same reasoning applies here, the limitation of judicial review to constitutional claims 11 should not create a nondelegation problem.46

12

In sum, the Act contains a sufficiently intelligible principle to survive

13 constitutional scrutiny and Plaintiff’s claims to the contrary should be dismissed.

14

B. The Waiver Provision Does Not Violate Article I § 3

15

California asserts that “Congress cannot provide the President or the Executive

16 Branch with such sweeping powers to waive federal criminal laws in its sole

17 discretion, without even listing which criminal laws can be waived.” Cal. Br. at 36.

18 But Plaintiffs identify no constitutional provision or case supporting such a

19 conclusion. Neither the fact that impeached federal officers can be criminally

20 prosecuted, Art. I § 3, nor the fact that the President cannot pardon impeached federal

21 officers, Art. I § 2, suggest that Congress cannot delegate power to waive criminal

22 laws. Similarly, caselaw about the limits of official immunity for prosecutors and

23

24 46 In Bozarov, the Ninth Circuit also “noted in closing” that its conclusion was “bolstered” by the availability of judicial review for constitutional claims and ultra
25 vires claims. Id. at 1044-45. While the availability of such review under that statute
26 made the case easier, nothing in the Ninth Circuit reasoning suggests that the removal of ultra vires review would alter the outcome. Indeed, it relied in part on the fact that
27 “the language of the APA itself [in 5 U.S.C. § 701(a)(1)] . . . suggests that Congress
28 intended that certain agency actions be immune from judicial review.” Id. at 1042.

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1 judges, see, e.g., Dennis v. Sparks, 449 U.S. 24 (1980), and about circumstances

2 where “the legitimate needs of the judicial process may outweigh Presidential

3 privilege,” United States v. Nixon, 418 U.S. 683, 707 (1974), says nothing about what

4 Congress can delegate to the Executive Branch.

5

While California raises the specter of “the Executive Branch . . . put[ting] itself

6 above the law,” id. at 37, it can point to nothing more than the fact that two of the

7 environmental statutes waived by the Secretary contain criminal sanctions for extreme

8 misconduct. See Cal. Br. at 36 (citing 42 U.S.C. § 6928 and 33 U.S.C. § 1319(c)).

9 This is far from “simply ignor[ing] or unilaterally waiv[ing] a criminal law.” Cal. Br.

10 at 36. Indeed, in a system where the Executive Branch has such “broad discretion”

11 about whom to prosecute, see United States v. JDT, 762 F.3d 984, 996 (9th Cir. 2014),

12 it would be odd to conclude that Congress had less power to delegate authority to

13 relieve criminal sanctions than in other areas.47 Cf. Loving, 517 U.S. at 767-68

14 (rejecting argument that Congress should have no power to delegate its authority to

15 regulate military affairs, including prescribing aggravating factors in capital cases, in

16 part because it could “discern no reasons why Congress should have less capacity to

17 make measured and appropriate delegations of this power than of any other”). The

18 constitutional constraint Plaintiffs proposed simply does not exist.

19

C. The Waiver Provision Does Not Violate Article I § 7

20

Plaintiffs also claim that Congress’ delegation of authority to waive federal

21 statutes infringes on the lawmaking procedures required under Article I, § 7 of the

22

23 47 Plaintiffs gain no support from Touby v. United States, which noted that the
24 Supreme Court had not resolved whether the nondelegation doctrine should require “more specific guidance” where “Congress authorizes another Branch to promulgate
25 regulations that contemplate criminal sanctions.” 500 U.S. at 165-66. Such concern
26 about limits on agency authority to impose criminal sanctions on individuals is quite distinct from delegated authority to lift criminal sanctions. And Touby makes clear
27 that the Supreme Court has not, in fact, imposed an additional requirement, even for
28 the more troubling circumstance.

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1 Constitution. See Ctr. Br. at 32-34; Coal. Br. at 27; Cal. Br. at 37-40. Clauses 2 and 3

2 of Article I, § 7 are called the “presentment clauses.” See United States v. Scampini,

3 911 F.2d 350, 351 (9th Cir. 1990). These clauses “require that all legislation be

4 presented to the President so that he may have the opportunity to exercise his veto

5 power before any legislation becomes law.” Id. Plaintiffs does not argue that IIRIRA

6 did not conform to the Presentment Clauses when it was enacted. Instead they argue

7 that permitting existing statutes to be waived for certain purposes constitutes

8 “amendment and repeal of statutes.” See, e.g., Ctr. Br. at 32 (quoting INS v. Chada,

9 462 U.S. 919, 954 (1983)). Plaintiffs’ claim is meritless, and both courts to consider

10 such a challenge to § 102(c) have rejected it. See County of El Paso, 2008 WL

11 4372693, at *6-7; Defenders of Wildlife, 527 F. Supp. 2d at 123-26.

12

The Presentment Clauses require a specific process, prohibiting legislative

13 action that does not conform to it. Thus, the Constitution does not authorize the

14 President “to enact, to amend, or to repeal statutes.” Clinton v. City of New York, 524

15 U.S. 417, 438 (1998). In Clinton, the Supreme Court struck down the Line Item Veto

16 Act, which gave the President the authority to “cancel” certain appropriated spending

17 items that had been passed by Congress. 524 U.S. at 438. That statute failed because

18 cancellation prevented the items “from having legal force or effect” and thus in “both

19 legal and practical effect, the President has amended two Acts of Congress by

20 repealing a portion of each.” Id.; see also id. at 447 (holding it improper to give the

21 President “unilateral power to change the text of duly enacted statutes”).

22

Plaintiffs’ claim fails because waiver of a legal requirement for a specific

23 purpose is not amendment or repeal of a statute. As Defenders of Wildlife explained:

24

[t]he Secretary has no authority to alter the text of any statute, repeal any

law, or cancel any statutory provision, in whole or in part. Each of the []

25

laws waived by the Secretary . . . retains the same legal force and effect

26

as it had when it was passed by both houses of Congress and presented to

the President. 27

28 527 F. Supp. 2d at 124. Under a § 102(c) waiver, the waived statutes are inapplicable

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1 only with respect to the construction of barriers and roads along the relevant portion of

2 the border. The statutes retain their general legal force and effect because the

3 Secretary’s waiver extends to only a tiny fraction of the universe of cases to which

4 NEPA and similar statutes apply. While Plaintiffs hyperbolically assert that, in the

5 aggregate, the § 102(c) waivers have “cut a large hole in the fabric of protections

6 provided by NEPA” and other environmental laws, Ctr. Br. at 34, and “effectively

7 repeal[ed] dozens of laws,” Cal. Br. at 40, the fact remains that these laws remain in

8 force in almost all of their applications, and no single provision of these laws is left 9 without any application.48 Plaintiffs have identified no basis to conclude that such

10 waivers violate the Constitution. See Acree v. Republic of Iraq, 370 F.3d 41, 64 n.3

11 (D.C. Cir. 2004) (Roberts, J., concurring) (dismissing constitutional challenge to

12 statute permitting President to make inapplicable to Iraq “any other provision of law

13 that applies to countries that have supported terrorism” because the authorized actions

14 “are a far cry from the line-item veto at issue in Clinton, and are instead akin to the

15 waivers that the President is routinely empowered to make in other areas, particularly

16 in the realm of foreign policy”).

17

18 48 The Center attempts to counter this fact by pointing to a single law “with limited geographic reach,” the Otay Mountain Wilderness Act of 1999, Pub. L. No. 106-145.
19 See Ctr. Br. at 34 n.23. That law designated certain public lands as wilderness and
20 incorporated it into the National Wilderness Preservation System. See Pub. L. No. 106-145, § 3. But the waiver does not impair the wilderness designation, and all
21 activities outside the scope of the waiver remain subject to the limitations and
22 restrictions of that Act. Moreover, the San Diego project area does not include any portion of this designated area. See 82 Fed. Reg. at 35985 (identifying area extending
23 only 15 miles from Pacific Ocean); Memorandum, Construction and Evaluation of
24 Border Wall Prototypes, U.S. Border Patrol, San Diego Sector, California at 2 & Fig. 1 (Sept. 25, 2017) (explaining that the prototypes construction occurred to the west of
25 the “western base of Otay Mountain”); BLM, Otay Mountain Wilderness,
26 https://www.blm.gov/visit/otay-mountain-wilderness (showing that the designated wilderness does not extend as far west as the San Diego project area). Accordingly,
27 Plaintiffs cannot show that the Secretary’s protective waiver of this statute impaired
28 the “legal force or effect” of the law.

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1

Indeed, this waiver authority is similar to an “executive grant of immunity or

2 waiver of claim” which “has never been recognized as a form of legislative repeal.”

3 See Telecomm. Records, 671 F.3d at 895. The Ninth Circuit rejected a Presentment

4 Clause challenge to 50 U.S.C. § 1885a, which permits the Attorney General “to

5 immunize from suit telecommunications companies that had cooperated with the

6 government’s intelligence gathering.” Id. at 891. Even though such grants of

7 immunity prevent civil actions to enforce the otherwise applicable “law governing

8 electronic surveillance,” the Circuit found no constitutional defect because “[t]he law

9 remains as it was when Congress approved it and the President signed it.” Id. at 894-

10 95. The Circuit also supported its conclusion by noting that the authority for

11 executive officials to “trigger a defense or immunity for a third party,” is “not

12 uncommon.” Id. at 895. Here, similarly, the § 102(c) authority in one statute granting

13 authority to waive application of one or more other statutes is not uncommon. See

14 Defenders of Wildlife, 527 F. Supp. 2d at 125 & n.5 (collecting some of the “myriad

15 examples of waiver provisions in federal statutes”); see also, e.g., 25 U.S.C. § 3406

16 (authorizing “Secretary of each Federal agency providing funds” for program to waive

17 “any statutory requirement, regulation, policy, or procedure promulgated by that

18 agency”); Pub. L. No. 109-171, § 5107(a)(2), 120 Stat. 42 (Feb. 6, 2006) (providing

19 for waiver of “such provisions of law . . . as are necessary to implement [specified 20 statutory provision] on a timely basis”).49

21

Nor does § 102(c) raise the same separation of powers concerns that were at

22

23 49 Plaintiffs attempt to distinguish the waiver authority here from other waiver statutes
24 by the scope of the waiver or the availability of judicial review, see Ctr. Br. at 33-34; Cal. Br. at 39; but they do not purport to canvas all other waiver statutes enacted by
25 Congress and cannot show that any court found such distinctions relevant. Under the 26 logic of Clinton and other precedent, so long as a waiver does not leave a statutory
provision with no legal effect, there is no plausible claim for a legislative repeal in 27 violation of the Presentment Clauses. See Acree, 370 F.3d at 64 n.3; Telecomm.
28 Records, 671 F.3d at 895.

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1 issue in Clinton. There, the Supreme Court was concerned that the President’s line-

2 item veto was “rejecting the policy judgment made by Congress and relying on his

3 own policy judgment.” 524 U.S. at 444. But here, Congress unmistakably expressed

4 its policy judgment that construction of the barriers and roads along the border was of

5 such importance that it justified waiving application of environmental and other laws

6 to the extent those laws threaten expeditious construction. See IIRIRA § 102(c)(1).

7 Thus, in sharp contrast to Clinton, there is no question that the Secretary is executing

8 (rather than rejecting) the will of Congress. Cf. Smith v. Fed. Reserve Bank of N.Y.,

9 280 F. Supp. 2d 314, 324 (S.D.N.Y. 2003) (upholding waiver where “[u]nlike in

10 Clinton” the President “is carrying out, not rejecting, a policy made by Congress”).

11 Plaintiffs argue that, nevertheless, the Secretary acts “contrary to the intent of

12 Congress by waiving laws passed by Congress,” Cal. Br. at 39, but this unsupported

13 assertion would defeat every waiver, no matter how limited. In addition, application

14 of waiver authority for the limited displacement of laws passed before § 102, as

15 generally occurred here, does not raise the concern present in Clinton that Congress’

16 current intention is being discarded. See 524 U.S. at 444 n.35 (“Because the Line

17 Item Veto Act requires the President to act within five days, every exercise of the

18 cancellation power will necessarily be based on the same facts and circumstances that

19 Congress considered, and therefore constitute a rejection of the policy choice made by

20 Congress.”). Here, there is nothing unseemly in the Secretary’s implementation of the

21 intent Congress expressed in 2005 for the narrow waiver of NEPA, the ESA, and the

22 CZMA, passed decades earlier, and the only laws upon which Plaintiffs base their

23 claims. Cf. Moyle v. Dir., Office of Workers’ Compensation Programs, 147 F.3d

24 1116, 1120 (9th Cir. 1998) (“[W]here provisions in the two acts are in irreconcilable

25 conflict, the later act to the extent of the conflict constitutes an implied repeal of the

26 earlier one.”); Maldonado, 67 F. Supp. 2d at 1180 (“[A] newer statute can supersede

27 an earlier one even if it does not make specific reference to the earlier statute.”).

28

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1

D. The Secretary’s Action Does Not Violate Article II § 3

2

The Center alone argues that exercise of the waiver authority Congress

3 provided in law constitutes failure to “faithfully execute” the waived laws. Ctr. Br. at

4 30-32. The Center asks the Court to transform the Constitution’s provision that the

5 President “shall take care that the laws be faithfully executed,” Art. II, § 3, into a

6 freestanding opportunity for plaintiffs to challenge any agency action they believe to

7 be ultra vires. See Ctr. Br. at 32 (“[T]he Take Care Clause’s mandate . . . precludes

8 actions beyond the scope of the law at issue.”). As set out in Defendants’ opening

9 brief regarding the Center’s claims, this claim fails for numerous reasons. See Defs.’

10 Mot. to Dismiss at 30-33 (“Defs.’ MTD”), ECF No. 18-1.

11

First, the Supreme Court has rejected the Center’s proposal that every claim that

12 Executive Branch officials have violated a statutory command should give rise to a

13 constitutional claim. “The distinction between claims that an official exceeded his

14 statutory authority, on the one hand, and claims that he acted in violation of the

15 Constitution, on the other, is . . . well established.” Dalton v. Specter, 511 U.S. 462,

16 474 (1994); see also id. at 473 (“[C]laims simply alleging that the President has

17 exceeded his statutory authority are not ‘constitutional’ claims[] subject to judicial

18 review.”). While Dalton was not directly addressing a Take Care Clause theory, its

19 reasoning is dispositive. Dalton rejected an attempt to apply Youngstown Sheet &

20 Tube Co. v. Sawyer, 343 U.S. 579 (1952) to mean that “whenever the President acts in

21 excess of his statutory authority, he also violates the constitutional separation-of-

22 powers doctrine.” 511 U.S. at 472. The Center, here, likewise seeks to extract the

23 same discredited notion from Youngstown’s reference to the Take Care Clause. See

24 Ctr. Br. at 32 (quoting Youngstown, 343 U.S. at 587).50 Yet the Center takes no

25

26 50 Moreover, Youngstown and Medellin v. Texas, 552 U.S. 491 (2008), cannot support

27 the Center’s approach because those cases concerned attempts to use the Take Care Clause as an independent basis for Executive Branch action where no statute applied.
28 See 343 U.S. at 587; 552 U.S. at 532. In rejecting such attempts to use the Clause as a

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1 account of Dalton in its brief. It would be a sweeping and unwarranted novelty for

2 litigants to be permitted to transform a garden-variety ultra vires claim into a

3 constitutional one any time they allege that an agency’s specific use of a statutory

4 authority constitutes failure to comply with a statute.51

5

Second, Defendants have shown that, to the extent any affirmative suit under

6 this Clause is appropriate,52 it must be brought against the President. See Defs.’ MTD

7 at 31; Free Enterprise Fund v. Public Co. Accounting Bd., 561 U.S. 477, 493 (2010)

8 (“It is his responsibility to take care that the laws be faithfully executed. The buck

9 stops with the President, in Harry Truman’s famous phrase.”). Courts have

10 recognized that the Clause carves out space for the President to manage subordinates

11 in the Executive Branch without judicial interference. See Free Enterprise Fund, 561

12 U.S. at 495-96; Morrison v. Olson, 487 U.S. 654, 689-90 (1988); Clinton v. Jones,

13 520 U.S. 681, 712-13 (1997) (Breyer, J., concurring). Thus, any suit under this

14

15

source of Executive Branch authority apart from any statute, the Supreme Court did not—as the Center would have it—treat the Clause as the basis for an ultra vires

16 challenge. Indeed, as Defendants’ previously noted, no court has ever treated the

17 Take Care Clause as basis for affirmative relief. See Defs.’ MTD at 32.

18

51 The Center fashions this argument to evade Congressional limits on judicial review in the APA and other statutes. See Ctr. Br. at 30 (quoting Franklin v. Massachusetts,

19 505 U.S. 788, 801 (1992), which permitted review of the “President’s actions . . . for

20

constitutionality” where APA review was precluded). Acceptance of this theory would have sweeping implications.

21 52 Defendants also dispute that the Clause provides a private cause of action. It has

22 never previously been used as a source of affirmative relief. See Defs.’ MTD at 32. The Center simply counters that there is a “long recognized . . . claim for relief against
23 federal officials’ unconstitutional acts.” Ctr. Br. at 31. But the Supreme Court made

24 clear in Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378 (2015), such relief

“is a judge-made remedy” that is “subject to express and implied statutory 25 limitations.” Id. at 1384-85. The Take Care Clause is distinct from the Appointments

26 Clause and separation-of-powers claims at issue in Free Enterprise Fund, 561 U.S. at

491 n.2, because for all the reasons discussed in this section it cannot be subject to 27 judicial supervision without intruding on the very power given to the President’s

28 exclusive control.

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1 Clause brought seeking relief from an agency rather than the President asks the Court

2 to exercise authority over Executive Branch subordinates that the Clause commits to

3 the President himself rather than to courts. See Defs.’ MTD at 31-32; Mississippi v.

4 Johnson, 71 U.S. 475, 499 (1867) (holding that “the duty of the President in the

5 exercise of the power to see that the laws are faithfully executed” is not judicially

6 enforceable, adding that any attempt by the judiciary to oversee the President’s Take

7 Care authority “might be justly characterized . . . as ‘an absurd and excessive

8 extravagance.’”); Franklin v. Massachusetts, 505 U.S. 788, 827 (1992) (Scalia, J.,

9 concurring in part) (stating that Court cannot order relief that would interfere with

10 President’s constitutional responsibility under the Take Care Clause).

11

Finally, Defendants have shown that—to the extent the Center’s theory is

12 grounded on a mere failure to enforce the waived statutes rather than its ultra vires

13 claims—its claim is incoherent. See Defs.’ MTD at 33. Because the waiver

14 determination was made pursuant to Congress’ own instruction that laws be waived

15 under certain conditions, the waiver itself should be considered faithful execution of

16 an act of Congress, not a breach of any duty to enforce the laws. The Center offers no

17 response to this point, appearing to rely exclusively on the ultra vires notion which

18 cannot be reconciled with Dalton.

19

E. The Waiver Provision Does Not Violate Constitutional Provisions

Regarding Access to the Courts 20

Plaintiffs argue that § 102(c)’s limitations on judicial review violate 21

constitutional protections regarding access to the courts. See Coal. Br. at 27-30; Cal. 22

23 Br. at 28-30. They purport to root this argument in the general principles of Article

24 III, in the First Amendment right to “petition for the redress of grievances,” and in the

Due Process Clause of the Fifth Amendment. See id. None of these claims is 25

meritorious. 26

First, Plaintiffs assert that § 102(c)’s limits on district court jurisdiction 27

interfere with the “right of access to the courts” based in the First Amendment right to 28

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1 “petition for redress of grievances” (the “Petition Clause”). Cal. Br. at 30; Coal. Br. at

2 29.53 Courts have applied the Petition Clause both to government actions that would

3 penalize efforts to file lawsuits, see, e.g., Munguia v. Frias, No. 07-1016, 2009 WL

4 3157482, at *12 (S.D. Cal. Sept. 24, 2009), and to actions that would prohibit abusive

5 litigants from filing additional lawsuits. See, e.g., BE & K Const. Co. v. NLRB, 536

6 U.S. 516, 524-25 (2002); Ringgold-Lockhart v. Cnty. of Los Angeles, 761 F.3d 1057,

7 1061-62 (9th Cir. 2014). But this case presents neither situation. And Plaintiffs cite

8 no caselaw suggesting that the Petition Clause cabins Congress’ authority under 9 Article III to define lower court jurisdiction. 54 See supra Arg. § II(A); Duldulao, 90

10 F.3d at 400 (holding that Article III gives Congress “the constitutional authority to

11 define the jurisdiction of the lower federal courts”); see also Exxon Mobil, 545 U.S. at

12 552 (“[D]istrict courts may not exercise jurisdiction absent a statutory basis.”).

13 Indeed, the available caselaw holds precisely the opposite:

14

[T]he right of access to federal courts is not a free-floating right, but

rather is subject to Congress’ Article III power to set limits on federal

15

jurisdiction. . . . Congress is no more compelled to guarantee free access

16

to federal courts than it is to provide unlimited access to them.

17

53 The “right of access to the courts” encompasses a variety of constitutional concerns. 18 See, e.g., Ringgold-Lockhart v. Cnty. of Los Angeles, 761 F.3d 1057, 1061-62 (citing

19 caselaw noting that the Supreme Court has located the court access right “in the

20

Privileges and Immunities clause, the First Amendment petition clause, the Fifth Amendment due process clause, and the Fourteenth Amendment equal protection

21 clause”). Plaintiffs appear to base their claims only in the First Amendment petition

22 clause. 54 Plaintiffs’ reliance on In re Workers’ Compensation Refund, 46 F.3d 813 (8th Cir.
23 1995) is misplaced. See Cal. Br. at 30. That case involved a state law providing that a

24 nonprofit association funded by insurance companies must reimburse the state for all

litigation costs related to challenges to the validity or enforcement of a new statute. 25 46 F.3d at 816, 821. The Eighth Circuit concluded that “[r]equiring one party to pay

26 the full cost of an action, regardless of who prevails, is a substantial deterrent to

commencing litigation,” which the state had not justified. Id. at 822. That decision, 27 in line with the penalization cases cited above, does not bear on Congress’ authority to

28 limit the jurisdiction of federal courts.

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1 Roller v. Gunn, 107 F.3d 227, 231 (4th Cir.1997);55 cf. Wilbur v. Locke, 423 F.3d

2 1101, 1116 (9th Cir. 2005) (right of access “is not absolute” and “must be exercised

3 within the limits of the courts’ prescribed procedures”); Nunag-Tanedo v. East Baton

4 Rouge Parish Sch. Bd., 711 F.3d 1136, 1141 (9th Cir. 2013) (“The Petition Clause of

5 the First Amendment . . . does not enjoy a special status, or confer any greater

6 immunity, than that provided by other First Amendment guarantees.”). Here, where

7 Congress has expressly provided for review of constitutional challenges to the

8 exercise of § 102(c) waiver authority,56 there is no reason to stretch cases applying the

9 Petition Clause from its role in protecting access to available judicial remedies to an

10 entirely novel role limiting Congress’ jurisdiction-stripping authority for non11 constitutional claims.57

12

13

55 See also Abdul-Akbar v. McKelvie, 239 F.3d 307, 319 (3d Cir. 2001) (adopting Roller’s analysis); White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998) (same);

14 Ali v. Andress-Tobiasson, No. 2:12-1571, 2013 WL 560508, at *2 (D. Nev. Feb. 11,

15 2013) (same).

56 Because Congress has not limited constitutional arguments, § 102(c) is entirely 16 dissimilar from the statutory provision rejected under the Free Speech Clause in Legal

17 Services Corp. v. Velazquez, 531 U.S. 533 (2001). Coal. Br. at 29. There, the

18

Supreme Court rejected a statutory provision preventing any attorney received Legal Services Corporation funding “from arguing to a court that a state statute conflicts

19 with a federal statute or that either a state or federal statute by its terms or in its

20

application is violative of the United States Constitution.” 531 U.S. at 537. Not only was that decision animated by concerns regarding government attempts to bar

21 discussion of constitutional claims, its analysis is inextricably tied to the concerns

22

raised by a government speech restriction tied to government funding. See id. at 546. The Supreme Court did not address whether limits on nonconstitutional claims would

23 raise similar problems. See id. (referring to “questions of statutory validity” to

24

incorporate the statute’s prohibition on arguing that a state law is preempted under the Supremacy Clause).

25 57 While the Coalition Plaintiffs baldly assert that “the ultra vires cases rest on a

26 recognition of the fundamental constitutional problem that would otherwise arise,”

Coal. Br. at 28, they do not support this proposition and Defendants have shown, to 27 the contrary, that ultra vires review rests on a presumption of congressional intent

28 rather than on constitutional necessity. See supra Arg. § III(A)(3).

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1

Second, Plaintiffs argue that, even if Congress has general authority to limit the

2 jurisdiction of lower federal courts, it cannot simultaneously eliminate the concurrent

3 jurisdiction of state courts. See Coal. Br. at 28. It is undisputed here that, by making

4 “exclusive” federal district court jurisdiction over claims related to waiver

5 determinations, § 102(c)(2)(A), Congress has displaced whatever state court

6 jurisdiction would otherwise be available. See, e.g., Tafflin v. Levitt, 493 U.S. 455,

7 459 (1990) (holding that “presumption in favor of concurrent state court jurisdiction

8 is, of course, rebutted if Congress affirmatively ousts the state courts of jurisdiction

9 over a particular federal claim”). Plaintiffs cite no authority establishing that the

10 Constitution imposes such a limitation on Congress’ power to shape the jurisdiction of

11 lower courts and preempt state court action. Plaintiffs rely primarily on Justice

12 Thomas’s dissent in Haywood v. Drown, 556 U.S. 729 (2009), which discussed the

13 origins of concurrent jurisdiction. But Plaintiffs get no support from his argument that

14 the Constitution does not require state courts to accept jurisdiction over federal claims.

15 Id. at 745-46. Indeed, a prior Supreme Court case, approvingly quoted by Justice

16 Thomas, is fatal to Plaintiffs’ theory:

17

[I]n judicial matters the concurrent jurisdiction of the state tribunals

depends altogether upon the pleasure of Congress, and may be revoked

18

and extinguished whenever they think proper, in every case in which the

19

subject-matter can constitutionally be made cognizable in the Federal

courts[.] 20

21 Haywood, 556 U.S. at 747 (Thomas, J., dissenting) (quoting Plaquemines Tropical

22 Fruit Co. v. Henderson, 170 U.S. 511, 517-18 (1898)) (emphasis added).58 Nor do

23 58 Healy v. Ratta, 292 U.S. 263 (1934), cited by Plaintiffs without explanation,
24 likewise does not support their theory. In Healy, the Supreme Court “strict[ly] constru[ed]” the diversity jurisdiction statute to effectuate congressional intent and to
25 ensure that federal courts, out of “due regard for the rightful independence of state 26 governments,” “scrupulously confine their own jurisdiction to the precise limits which
the statute has defined.” 292 U.S. at 270. Nothing in Healy suggests that Congress, 27 when acting “in conformity to [Article III],” id. cannot adopt any specific restriction
28 on state court jurisdiction.

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1 Plaintiffs cite any authority suggesting the Constitution requires a forum for every

2 claim to be heard.

3

Finally, Plaintiffs claim that § 102(c)’s limitation on judicial review, either

4 independently, Coal. Br. at 29, or as implemented by the challenged waiver

5 determinations, Cal. Br. at 27-29, fails to provide adequate notice in violation of the

6 Due Process Clause of the Fifth Amendment. This claim fails at the threshold. It is

7 Plaintiffs’ burden to establish a life, liberty, or property interest for which due process

8 is required. See Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (“[T]hose who seek to

9 invoke [Due Process Clause] protection must establish that one of these interests is at

10 stake.”). Here, Plaintiffs make no attempt to carry that burden. See Coal. Br. at 29

11 (asserting without explanation “the Coalition Plaintiffs’ property and liberty interests

12 in ensuring environmental laws and interests are protected”); Cal. Br. at 27-30 (never

13 identifying what cognizable interests are at stake).59 And there is no reason to believe 14 that they have in fact been deprived of any cognizable interest.60

15

But even if they had identified a protected interest, Plaintiffs cannot show that

16 the statute or the waiver determinations fail to provide sufficient notice. California

17 claims that the waiver determinations leave it “having to guess which state laws have

18 been waived.” Cal. Br. at 29. But they provide nothing to suggest that there is any

19

20 59 Wilkinson does not support Plaintiffs’ assertion of a liberty interest. In that case the

21 Supreme Court referenced a “liberty interest in avoiding withdrawal of state-created

22

system of good-time credits,” 545 U.S. at 221, but Wilkinson and the cases it cites concern the liberty interests of prisoners. Plaintiffs’ liberty is not similarly affected by

23 the enforcement or waiver of environmental laws.

24 60 California’s challenge to § 102(c)’s 60-day statute of limitations is an irrelevant hypothetical. It is undisputed that these suits are timely. And California merely cites
25 two cases about retroactive application of new statutes of limitations to existing
26 claims. See Hartford Cas. Ins. Co. v. FDIC, 21 F.3d 696, 701-04 (5th Cir. 1994); Wilson v. Iseminger, 185 U.S. 55, 62-63 (1902). Neither case suggests that a statute
27 of limitations with merely prospective application could be held unconstitutional on
28 due process grounds.

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1 actual ambiguity in a determination that specifies which federal laws are waived and

2 includes all “state, or other laws regulations and legal requirements of, deriving from,

3 or related to the subject of” those federal laws. 82 Fed. Reg. at 35985, 42830. Indeed,

4 because state law that can bind federal action is vanishingly rare, California would be

5 hard pressed to identify any laws that might or might not be affected. The one state

6 law that clearly falls within this scope has been included in this litigation. See Cal.

7 Compl. ¶¶ 38-39, 112-15 (Sept. 20, 2017) (alleging violation of the California Coastal

8 Act and California Coastal Management Program, state statutes which were provided

9 for and approved pursuant to the CZMA). Separately, California argues that the San

10 Diego waiver determination is “hopelessly vague” because it provides:

11

DHS will immediately implement various border infrastructure projects. .

. . All of the projects that DHS will undertake within the Project Area

12

will further Border Patrol’s ability to deter and prevent illegal crossings.

13

For example, DHS will replace existing primary fencing in the Project

14

Area. . . . DHS will also build prototype border wall in the Project Area near the eastern terminus of the existing secondary barrier.

15 82 Fed. Reg. 35984-85. This due process challenge fails at the threshold for the

16 reasons discussed above—no cognizable interest is at stake. See Hunt v. City of Los

17 Angeles, 638 F.3d 703, 710 (9th Cir. 2011) (“In making a vagueness challenge, a

18 plaintiff actually raises a due process . . . claim.”). The claim also fails on the merits

19 because DHS does not construe this waiver determination to encompass any border

20 infrastructure projects other than the projects specifically identified in the

21 determination.

22

F. The Waiver Provision Does Not Violate the Tenth Amendment

23

The Tenth Amendment “reserve[s] to the States respectively, or to the people”

24 the powers the Constitution has not “delegated to the United States” or “prohibited . . .

25 to the States.” U.S. Const., 10th Amend. In general, “if Congress acts under one of

26 its enumerated powers, there can be no violation of the Tenth Amendment.” United

27 States v. Jones, 231 F.3d 508, 515 (9th Cir. 2000); see also Gila River Indian

28

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1 Community v. United States, 729 F.3d 1139, 1153 (9th Cir. 2013) (“If a power is

2 delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims

3 any reservation of that power to the States.” (quoting New York v. United States, 505

4 U.S. 144, 156-57 (1992))). This includes the power to preempt state laws that conflict

5 with or serve as an obstacle to the purposes of federal law. See, e.g., S. Cal. Edison

6 Co. v. Lynch, 307 F.3d 794, 808 (9th Cir. 2002) (“The application of federal pre-

7 emption . . . would not intrude on the rights reserved under the Tenth Amendment.”);

8 United States v. Geiger, 263 F.3d 1034, 1040 (9th Cir. 2001) (“If Congress has the

9 constitutional authority to enact legislation, then the pre-emption question is whether

10 Congress intended to displace state law in that area, not whether the existence of state

11 law forbade Congress from regulating.”). And waiver of state law—whether by

12 statute or by regulation—is simply a limited form of federal preemption. Cf. Nat’l

13 Fed’n of the Blind v. United Airlines, Inc., 813 F.3d 718, 734 (9th Cir. 2013) (noting

14 that “where Congress has entrusted an agency with the task of promulgating

15 regulations to carry out the purposes of a statute, . . . [courts] must consider whether

16 the regulations evidence a desire to occupy a field completely”); Engine Mfrs. Ass’n v.

17 S. Coast Air Quality Mgmt. Dist., 498 F.3d 1031, 1043 (9th Cir. 2007) (discussing

18 Clean Air Act provision permitting express preemption of state law to be waived in

19 certain circumstances).

20

Here, Congress legislated to regulate the international border of the United

21 States and to reduce illegal entry into the United States of persons and contraband—

22 violations of federal law. These are quintessentially within Congress’ inherent and

23 enumerated powers. See, e.g., Arizona v. United States, 567 U.S. 387, 395 (2012)

24 (“The federal power to determine immigration policy is well settled.”); id. at 422

25 (2012) (Scalia, J., concurring in part and dissenting in part) (arguing that immigration

26 legislation “is an inherent attribute of sovereignty” which was why “there was no need

27 to set forth control of immigration as one of the enumerated powers of Congress”);

28

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1 United States v. Hernandez-Guerrero, 963 F. Supp. 933, 937 (S.D. Cal. 1997), aff’d

2 147 F.3d 1075 (9th Cir. 1998) (concluding that “criminal immigration sanctions” are a

3 constitutional “exercise of Congress’s authority under the Commerce Clause”).

4 Indeed, California does not suggest that Congress lacked authority to enact § 102

5 generally, i.e., to direct DHS to construct barriers and roads in the vicinity of the

6 international border. California only challenges Section 102(c)’s waiver provision for

7 its “federal interference in state policy powers and state sovereignty.” Cal. Br. at 26.

8 But this is not enough to raise a viable Tenth Amendment claim. “Generally

9 speaking, . . . a power granted to Congress trumps a competing claim based on a

10 state’s police power.” Gonzalez v. Raich, 500 F.3d 850, 867 (9th Cir. 2007).

11

California makes two attempts to avoid the Ninth Circuit’s straightforward

12 Tenth Amendment jurisprudence. First, it attempts to appropriate Shelby Cnty., Ala. v.

13 Holder, 133 S. Ct. 2612, 2622 (2013), which concluded that the “extraordinary

14 measures” taken in 1965 “to address [the] extraordinary problem” of “entrenched race

15 discrimination in voting” were no longer justified “[n]early 50 years later.” 133 S. Ct.

16 at 2618. In Shelby County, the Supreme Court was primarily concerned that “equal

17 sovereignty” among the states was impaired by expressly singling out certain states,

18 and that those states “must beseech the Federal Government for permission to

19 implement [election] laws that they would otherwise have the right to enact and

20 execute on their own.” Id. at 2623-24. By contrast, there is no impairment of “equal

21 sovereignty” for Congress to pass laws regarding the international border of the

22 United States, and thus impacting the states in which that border lies. And there is no

23 comparison between the limited waiver of state laws that might impair expeditious

24 construction of border infrastructure and a comprehensive preclearance requirement

25 for “all changes to state election law—however innocuous.” Id. at 2624.61 Moreover,

26

27 61 There is simply no basis for California’s hyperbolic claim that § 102(c) “interferes far more with state sovereignty than any statute before it.” Cal. Br. at 27. For this
28 point, California does not reference any laws that have actually been waived during

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1 Shelby County does not stand for a general proposition that constitutionally enacted

2 statutes become vulnerable whenever there are “changed circumstances.” Cal. Br. at

3 26. In Shelby County, the concerns previously discussed were exacerbated by the fact

4 that statute continued to single out states “based on decades old data and eradicated

5 practices.” 133 S. Ct. at 2627. Here, by contrast, the “steep[] declines in illegal

6 border crossings,” Cal. Br. at 26, do not undermine either the legitimacy of Congress’s

7 goal of operation control of the border or DHS’s exercise of the authority Congress

8 delegated to pursue that goal. The border situation need not be the crisis that it was in

9 the 1990s to justify the actions Congress has adopted. Cf. County of El Paso, No. 08-

10 196, 2008 WL 4372693, at *8 (“The Secretary, pursuant to the Supremacy Clause, has

11 only waived state and local laws which interfere with Congress’s purpose to construct

12 the border barrier.”).

13

Second, California argues that City of Boerne v. Flores, 521 U.S. 507 (1997)

14 means that “a federal law is unconstitutional where it so interferes with states’

15 traditional police powers as to be ‘out of proportion’ to its object.” Cal. Br. at 27

16 (citing Boerne, 521 U.S. at 533-36). But the caselaw stands for an entirely different

17 principle. A series of cases, including City of Boerne, addressed the limits on

18 Congress’s power under § 5 of the Fourteenth Amendment to abrogate a state’s

19 sovereign immunity to “remedy and deter violation of [constitutional] rights.”

20 Tennessee v. Lane, 541 U.S. 509, 518 (2004). In that context, City of Boerne found

21 that the Religious Freedom Reformation Act did not meet that standard because it was

22 “so out of proportion to a supposed remedial or preventive object that it cannot be

23 understood as responsive to, or designed to prevent, unconstitutional behavior” but

24

25 the existence of the waiver authority but instead hypothesizes about “indefinitely waiv[ing] all state and local laws and regulations.” Cal. Br. at 27. But there is, in
26 fact, little need to waive state law because few state laws actually limit federal

27 construction along the international border. Indeed, as mentioned above, the only state laws that Plaintiffs have identified as directly impacted here are those related to
28 the federal CZMA. See supra Arg. § IV(A).

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1 instead attempts “a substantive change in constitutional protections.” 521 U.S. at 532.

2 That analysis has no application here, where Congress has not abrogated state

3 immunity but instead simply preempted certain state laws for one narrow activity.62

4 See County of El Paso, No. 08-196, 2008 WL 4372693, at *8 (concluding that a §

5 102(c) waiver “do[es] not affect the validity of the state and local laws” but “merely

6 spspend[s] the effects of the state and local laws”).

7 V. PLAINTIFFS’ CLAIMS UNDER OTHER STATUTES MUST BE DISMISSED
8

9

None of Plaintiffs’ claims brought under other statutes, with the exception of

the Center’s Freedom of Information Act claim, can survive summary judgment. 10

First, because the waiver determination pursuant to IIRIRA § 102(c)(1) is valid and 11

survives any available judicial review as discussed above, see supra, Arg. §§ III, IV, 12

13 NEPA, the ESA, and the CZMA have been waived as to the challenged projects being

14 conducted by Defendants:

[P]ursuant to section 102(c)(1) of IIRIRA, I hereby waive in their

15

entirety, with respect to the construction of roads and physical barriers . .

16

. in the Project Area, the following statutes . . . : The National

Environmental Policy Act (Pub. L. 91-190, 83 Stat. 852 (Jan. 1, 1970)

17

(42 U.S.C. 4321 et seq.)); the Endangered Species Act (Pub. L. 93-205,

18

87 Stat. 884 (Dec. 28, 1973) (16 U.S.C. 1531 et seq.)); . . . [and] the

19

Coastal Zone Management Act (Pub. L. 92–583 (16 U.S.C. 1451 et seq.))[.]

20 82 Fed. Reg. at 35985; see also id. at 42830. Accordingly, California’s Counts 1 and

21 2 and the Center’s Counts 5 and 6 have been extinguished and the Court lacks

22 jurisdiction to grant any relief pursuant to those statutes. See Sierra Club, 2005 U.S.

23 Dist. LEXIS at *7, 39-40.

24

Second, the Court lacks jurisdiction to consider the Center’s ESA claims

25

26 62 Plaintiffs’ citation of Gonzalez v. Oregon, 546 U.S. 243 (2006), is also inapposite because the Ninth Circuit has instructed that the case concerned “statutory
27 construction, not . . . constitutional invalidity under the Tenth Amendment.”
28 Gonzalez, 500 F.3d at 867.

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1 because the Center failed to provide the mandatory notice prerequisite to suit. Its ESA

2 claims must be dismissed for lack of jurisdiction because Plaintiff did not provide

3 “written notice of the violation” to the “Secretary [of Interior], and to any alleged

4 violator of any such provision or regulation,” prior to filing this suit. 16 U.S.C.

5 § 1540(g)(2)(A); Sw. Ctr. for Biological Diversity v. U.S. Bureau of Reclamation, 143

6 F.3d 515, 520 (9th Cir. 1998). Plaintiffs can fulfill this sixty-day notice requirement

7 only by sending a notice after the alleged violation has occurred: “[O]ne cannot give

8 notice of a violation which has not yet happened.” Kern Cnty. Farm Bureau v.

9 Badgley, No. 02-5376, 2002 WL 34236869, at *13 (E.D. Cal. Oct. 10, 2002); see also

10 Friends of Animals v. Ashe, 51 F. Supp. 3d 77, 85-87 (D.D.C. 2014), aff’d, 808 F.3d

11 900 (D.C. Cir. 2015); Forest Guardians v. U.S. Bureau of Reclamation, 462 F. Supp.

12 2d 1177, 1183 (D.N.M. 2006); Moden v. U.S. Fish & Wildlife Serv., 281 F. Supp. 2d

13 1193, 1206 (D. Or. 2003). The Center does not dispute that its June and July 2017

14 notice letters were sent before any violation could have occurred. Instead, it asks the

15 Court to adopt the contrary approach taken in one decision by the District of

16 Colorado. Ctr. Br. at 40 (quoting Colo. Envtl. Coal. v. Office of Legacy Mgmt., 819 F.

17 Supp. 2d 1193, 1219 (D. Colo. 2011)). This decision is against the weight of more

18 persuasive authority cited above.63 It incorrectly found that the ESA does not

19 explicitly address this issue, see id. at 1219, when the ESA’s notice provision in fact

20

21 63 In finding the case law “divided” on the validity of notices predicting future agency
22 action, the District of Colorado decision cited only one case, Water Keeper Alliance v. U.S. Dep't of Def., 271 F.3d 21 (1st Cir. 2001). Water Keeper found that the plaintiff’s
23 notice letter identified an “ongoing delinquency in the [Navy’s] preparation of a
24 biological assessment,” i.e., an alleged violation by the Navy that existed before and after the notice. Id. at 30 (emphasis added). The Center also cites Klamath-Siskiyou
25 Midlands Ctr. v. MacWhorter, 797 F.3d 645, 651-54 (9th Cir. 2015) and Marbled
26 Murrelet v. Babbitt, 83 F.3d 1068, 1073 (9th Cir. 1996), but defendants there argued that the notice letters were insufficiently detailed (Klamath-Siskiyou) or contemplated
27 a suit brought under a different provision of the ESA than ultimately relied upon in the
28 complaint (Marbled Murrelet), not that that the notices pre-dated any ESA violation.

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1 requires “written notice of the violation,” 16 U.S.C. § 1540(g)(2)(A), which

2 contemplates that the violation exists at the time of the notice. The decision also

3 overlooks that an ESA Section 7 violation does not exist until an agency, without ESA

4 consultation, has “authorized, funded, or carried out” a discretionary “action” that may

5 affect listed species. 16 U.S.C. § 1536(a)(2); see also 50 C.F.R. § 402.02 (definition

6 of “action”), id. § 402.03. Until that point, the agency may modify or limit the effects

7 of the contemplated action on listed species, making a pre-action notice insufficient to

8 appraise the agency of how it could further address the plaintiff’s concerns without

9 litigation, inconsistent with the purpose of the notice requirement. Sw. Ctr., 143 F.3d

10 at 520.64 And, of course, while the Center’s insufficient notice provides an additional

11 ground for dismissal, the Court need not reach this notice issue because the ESA claim

12 has been extinguished by the waiver.

13

Finally, the Center offers no substantive response to Defendant’s showing that

14 the Court must dismiss the Center’s APA claim regarding the processing of its FOIA

15 requests because the FOIA itself provides an adequate remedy. See Defs.’ MTD at

16 40; Ctr. Br. at 3 n.1 (stating only the belief that “this issue should be addressed by the

17 Court only if the statutory FOIA claim is not otherwise resolved via settlement”).

18 Having established that the Court lacks subject matter jurisdiction over this claim,

19 Defendants are entitled to dismissal of the Center’s APA claim in Count 7 of its

20 Second Amended Complaint. See Brem–Air Disposal v. Cohen, 156 F.3d 1002, 1004

21 (9th Cir. 1998); Bedgood v. Mabus, No. 15-454, 2015 WL 3647933, at *4-5 (S.D. Cal.

22 June 8, 2015).

23

24 64 The Center claims that any insufficiency of its notice is due to “the lack of
25 information available to the Center . . . due to DHS’s decision to waive laws such as 26 the ESA.” Ctr. Br. at 40. But the Center’s notice was inherently speculative, issued
well before the waiver decisions were made or any contracts awarded. See Defs.’ 27 MTD at 39. This illustrates why it is logical for the statute to require notice of a 28 “violation,” not a “possible future violation,” before suit can be filed.

Defs.’ Cross-Motion for Summary Judgment

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1 VI. PLAINTIFFS ARE NOT ENTITLED TO THE REMEDIES THEY SEEK

2

Defendants have shown that they are entitled to summary judgment and that

3 Plaintiffs’ motions should be denied. Nonetheless, if the Court rules for Plaintiffs,

4 Defendants request the opportunity to provide separate briefing on remedy. Even if

5 the Court were to find Defendants’ actions improper, vacatur should not automatically

6 follow because the Court “is not required to set aside every unlawful agency action.”

7 Nat’l Wildlife Fed’n v. Espy, 45 F.3d 1337, 1343 (9th Cir. 1995); see also Sierra

8 Forest Legacy v. Sherman, 951 F. Supp. 2d 1100, 1105 (E.D. Cal. 2013) (“It is well

9 established in this Circuit that a Court is not mechanically obligated to vacate an

10 agency decision that it finds invalid.”). Whether agency action should be vacated

11 depends on a two-factor test: (1) “how serious the agency’s errors are” and (2) “‘the

12 disruptive consequences of an interim change that may itself be changed.’” Cal.

13 Cmtys. Against Toxics v. EPA, 688 F.3d 989, 992 (9th Cir. 2012) (quoting Allied–

14 Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146, 150–51 (D.C. Cir.

15 1993)). At this point, given the many varieties of legal claims and their diverse

16 consequences for remedy issues, it would be inefficient to address the matter before

17 the Court rules on the merits. But if the Court rules in Plaintiffs’ favor, Defendants

18 respectfully request an opportunity to brief these two factors and, in particular, the

19 potentially disruptive consequences of an order vacating the waiver decisions on the

20 eve of construction.

21

CONCLUSION

22

For the foregoing reasons, the Court should grant summary judgment to

23 Defendants on all counts and deny Plaintiffs’ motions for summary judgment on all

24 counts, with the exception of the Center’s FOIA claim in its Count 7 which is not yet

25 ripe for disposition.

26

27

28

Defs.’ Cross-Motion for Summary Judgment

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1 Dated: December 20, 2017 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Defs.’ Cross-Motion for Summary Judgment
30

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General Civil Division
JOHN R. TYLER Assistant Director
/s/ Galen N. Thorp GALEN N. THORP Senior Counsel
Attorneys for Federal Defendants

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1

2

APPENDIX: 8 U.S.C. § 1103 NOTE (IN RELEVANT PART)

3

(Codifying Illegal Immigration Reform and Immigrant Responsibility Act of 1996, § 102, as amended)

4

5 IMPROVEMENT OF BARRIERS AT BORDER

6 Pub. L. 104–208, div. C, title I, § 102(a)–(c), Sept. 30, 1996, 110 Stat. 3009–554, 7 3009–555, as amended by Pub. L. 109–13, div. B, title I, § 102, May 11, 2005, 119
Stat. 306; Pub. L. 109–367, § 3, Oct. 26, 2006, 120 Stat. 2638; Pub. L. 110–161, div. 8 E, title V, § 564(a), Dec. 26, 2007, 121 Stat. 2090, provided that:
9 “(a) IN GENERAL.—The Secretary of Homeland Security shall take such actions as 10 may be necessary to install additional physical barriers and roads (including the
removal of obstacles to detection of illegal entrants) in the vicinity of the United 11 States border to deter illegal crossings in areas of high illegal entry into the United 12 States.

13 “(b) CONSTRUCTION OF FENCING AND ROAD IMPROVEMENTS ALONG THE 14 BORDER.—

15

“(1) ADDITIONAL FENCING ALONG SOUTHWEST BORDER.—

16

“(A) REINFORCED FENCING.—In carrying out subsection (a), the

Secretary of Homeland Security shall construct reinforced fencing along

17

not less than 700 miles of the southwest border where fencing would be

18

most practical and effective and provide for the installation of additional

physical barriers, roads, lighting, cameras, and sensors to gain

19

operational control of the southwest border.

20

“(B) PRIORITY AREAS.—In carrying out this section [amending this

21

section],* the Secretary of Homeland Security shall—

22

“(i) identify the 370 miles, or other mileage determined by the

23

Secretary, whose authority to determine other mileage shall expire on December 31, 2008, along the southwest border where fencing

24

25 * Each of the brackets in the text reflects editorial notes by Office of Law Revision 26 Counsel in preparing the text for publication in the U.S. Code. See Office of Law
Revision Counsel, Detailed Guide to the United States Code Content and Features, 27 § II(A) (link) (“The third type of [editorial] change involves inserting bracketed 28 citation information in the text following a cross reference.”).

Defs.’ Cross-Motion for Summary Judgment

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1

would be most practical and effective in deterring smugglers and

aliens attempting to gain illegal entry into the United States; and 2

3

“(ii) not later than December 31, 2008, complete construction of reinforced fencing along the miles identified under clause (i).

4 “(C) CONSULTATION.—

5

“(i) IN GENERAL.—In carrying out this section, the Secretary of

6

Homeland Security shall consult with the Secretary of the Interior,

7

the Secretary of Agriculture, States, local governments, Indian

tribes, and property owners in the United States to minimize the

8

impact on the environment, culture, commerce, and quality of life

9

for the communities and residents located near the sites at which

such fencing is to be constructed. 10

11

“(ii) SAVINGS PROVISION.—Nothing in this subparagraph may be construed to—

12 “(I) create or negate any right of action for a State, local

13

government, or other person or entity affected by this

14

subsection; or

15

“(II) affect the eminent domain laws of the United States or

of any State.

16

“(D) LIMITATION ON REQUIREMENTS.—Notwithstanding subparagraph

17

(A), nothing in this paragraph shall require the Secretary of Homeland

18

Security to install fencing, physical barriers, roads, lighting, cameras, and

19

sensors in a particular location along an international border of the United States, if the Secretary determines that the use or placement of

20

such resources is not the most appropriate means to achieve and maintain

operational control over the international border at such location. 21

22

“(2) PROMPT ACQUISITION OF NECESSARY EASEMENTS.—The Attorney General, acting under the authority conferred in section 103(b) of the

23

Immigration and Nationality Act [8 U.S.C. 1103(b)] (as inserted by subsection

24

(d)), shall promptly acquire such easements as may be necessary to carry out

this subsection and shall commence construction of fences immediately

25

following such acquisition (or conclusion of portions thereof).

26

“(3) SAFETY FEATURES.—The Attorney General, while constructing the

27

additional fencing under this subsection, shall incorporate such safety features

into the design of the fence system as are necessary to ensure the well-being of

28

border patrol agents deployed within or in near proximity to the system.

Defs.’ Cross-Motion for Summary Judgment

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1

“(4) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be

appropriated such sums as may be necessary to carry out this subsection.

2

Amounts appropriated under this paragraph are authorized to remain available

3

until expended.

4 “(c) WAIVER.—

5

“(1) IN GENERAL.—Notwithstanding any other provision of law, the Secretary

6

of Homeland Security shall have the authority to waive all legal requirements

such Secretary, in such Secretary’s sole discretion, determines necessary to

7

ensure expeditious construction of the barriers and roads under this section

8

[amending this section]. Any such decision by the Secretary shall be effective

upon being published in the Federal Register.

9

“(2) FEDERAL COURT REVIEW.— 10

11

“(A) IN GENERAL.—The district courts of the United States shall have exclusive jurisdiction to hear all causes or claims arising from any action

12

undertaken, or any decision made, by the Secretary of Homeland Security

13

pursuant to paragraph (1). A cause of action or claim may only be brought alleging a violation of the Constitution of the United States. The

14

court shall not have jurisdiction to hear any claim not specified in this

15

subparagraph.

16

“(B) TIME FOR FILING OF COMPLAINT.—Any cause or claim brought

pursuant to subparagraph (A) shall be filed not later than 60 days after

17

the date of the action or decision made by the Secretary of Homeland

18

Security. A claim shall be barred unless it is filed within the time

specified.

19

“(C) ABILITY TO SEEK APPELLATE REVIEW.—An interlocutory or final

20

judgment, decree, or order of the district court may be reviewed only

21

upon petition for a writ of certiorari to the Supreme Court of the United

States.”

22

23

24

25

26

27

28

Defs.’ Cross-Motion for Summary Judgment

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 Case 3:17-cv-01215-GPC-WVG Document 36 Filed 01/05/18 PageID.1239 Page 1 of 27

1 Brian Segee (Bar No. 200795)

2 Center for Biological Diversity

3

111 W. Topa Topa Street Ojai, CA 93023

4 T: (805) 750-8852

5 bsegee@biologicaldiversity.org

6 Brendan Cummings (Bar No. 193952)

7

Anchun Jean Su (Bar No. 285167) Center for Biological Diversity

8 1212 Broadway, Suite 800

9

Oakland, CA 94612 T: (510) 844-7100; F: (510) 844-7150

10 bcummings@biologicaldiversity.org; jsu@biologicaldiversity.org

11 John Peter Rose (Bar No. 285819)

12 Center for Biological Diversity

13

660 South Figueroa Street, Suite 1000 Los Angeles, CA 90017

14 jrose@biologicaldiversity.org

15 Attorneys for Plaintiff

16

UNITED STATES DISTRICT COURT

17

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

18

19

20

21

IN RE: BORDER

22

INFRASTRUCTURE ENVIRONMENTAL

23

LITIGATION

24

Case No. 3:17-cv-01215-GPC-WVG Consolidated with Case No. 17-cv-01873-GPC-WVG Case No. 17-cv-01911-GPC-WVG
Plaintiff Center for Biological Diversity’s Reply Memorandum of Points and Authorities in Support of Cross Motion for Summary Judgment

25

Date: February 9, 2018, Time: 1:30 p.m.

26

Courtroom: 2D Before Hon. Gonzalo P. Curiel

27

28

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1

TABLE OF CONTENTS

2 TABLE OF CONTENTS ..........................................................................................ii

3 TABLE OF AUTHORITIES....................................................................................iii 4 5 INTRODUCTION ..................................................................................................... 1

6 ARGUMENT............................................................................................................. 2

7

I. The Court Has Jurisdiction to Determine Whether the August 2

8

Waiver Was Properly Within the Scope of § 102(c)(1) ....................... 2

9

II. The Scope of the § 102(c) Waiver is Limited to the Specific

10

Border Barriers Required Under § 102(b) ............................................ 8

11

III. The Doctrine of Constitutional Avoidance Compels a Holding

12

that the August 2 Waiver is Ultra Vires to IIRIRA § 102 .................. 13

13

IV. The August 2 Waiver and the IIRIRA § 102 Waiver are

14

Unconstitutional .................................................................................. 15

15 A. The August 2 Waiver Violates the Take Care Clause ............. 15
16

17

B. The August 2 Waiver Violates the Presentment Clause........... 18

18

C. The August 2 Waiver Violates the Nondelegation Doctrine.... 19

19 V. The Center’s ESA Notice Was Adequate ........................................... 19
20

21 CONCLUSION........................................................................................................ 20

22

23

24

25

26

27

28

CBD Reply Brief

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1

TABLE OF AUTHORITIES

2

CASES

3

4

American School of Magnetic Healing v. McAnnulty, 187 U.S. 94 (1902) .............................................................................................. 4, 6

5

6

Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378 (2015) .................................................................................... 15, 16

7

8

Bear Valley Mut. Water Co. v. Jewell, 790 F.3d 977 (9th Cir. 2015) ................................................................................ 12

9

10

Board of Governors Fed. Reserve Sys. v. MCorp Fin. Inc., 502 U.S. 32 (1991) ...............................................................................................4-6

11

12 Cascadia Wildlands v. Scott Timber Co., 190 F. Supp. 3d 1024 (D. Or. 2016) ..................................................................... 19
13

14 Citizens for Better Env’t v. Union Oil Co., 861 F. Supp. 889 (N.D. Cal. 1994) ....................................................................... 20
15

16 Clinton v. City of New York, 524 U.S. 417 (1988) .............................................................................................. 18
17

18 Cmty. Ass’n for Restoration of the Env’t v. Henry Bosma Dairy, 305 F.3d 943 (9th Cir. 2002)............................................................................19-20
19

20 Dalton v. Specter, 511 U.S. 462 (1994) .............................................................................................. 16
21

22 Dart v. United States, 848 F.2d 217 (D.C. Cir. 1988) ........................................................................ 4, 7, 8
23

24 Defenders of Wildlife v. Chertoff, 25 527 F. Supp. 2d 119 (D.D.C. 2007) ...................................................................... 18

26 El Paso Natural Gas Co. v. United States, 27 632 F.3d 1272 (D.C. Cir. 2011) .............................................................................. 2

28

CBD Reply Brief

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1

Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781 (9th Cir. 1995)................................................................................... 20

2

3

Franklin v. Massachusetts, 505 U.S. 788 (1992) .............................................................................................. 16

4

5

Free Enterprise Fund v. Public Co. Accounting Bd., 561 U.S. 477 (2010) ........................................................................................ 16, 17

6

7

Gozlon-Peretz v. United States, 498 U.S. 395 (1991) .............................................................................................. 10

8

9 Hawai’i v. Trump, 2017 U.S. App. LEXIS 26513 (9th Cir. Dec. 22, 2017)......................... 6, 8, 13, 15
10

11 Kendall v. United States ex rel. Stokes, 37 U.S. 524 (1838) ................................................................................................ 17
12

13 Leedom v. Kyne, 358 U.S. 184 (1958) ........................................................................................ 4, 6, 8
14

15 McBryde v. Comm. to Review Circuit Council Conduct & Disability Orders of the

16

Judicial Conf. of the United States, 264 F.3d 52 (D.C. Cir. 2001) ............................................................................. 4, 6

17

18

MCorp Fin. Inc. v. Bd. of Governors Fed. Res. Sys., 900 F.2d 852 (5th Cir. 1990)................................................................................... 5

19

20

Murrelet v. Pacific Lumber Co., 83 F.3d 1060 (9th Cir. 1996)................................................................................. 20

21

22

Myers v. United States, 272 U.S. 52 (1926) ................................................................................................ 17

23

24

Pacific Maritime Association v. NLRB, 827 F.3d 1203 (9th Cir. 2016) ................................................................................ 8

25

26

Printz v. United States, 521 U.S. 898 (1997) .............................................................................................. 17

27

28

CBD Reply Brief

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1

Ralpho v. Bell, 569 F.2d 607 (D.C. Cir. 1977) ............................................................................. 7

2

3

Save Our Heritage v. Gonzales, 533 F. Supp. 2d 58 (D.D.C. 2008) ........................................................................ 10

4

5

Sierra Club v. Ashcroft, 2005 U.S. Dist. LEXIS 44244 (S.D. Cal. Dec. 13, 2005) .................................9-10

6

7

Spencer Enterprises, Inc. v. United States, 345 F.3d 683 (9th Cir. 2003)............................................................................... 2, 3

8

9 United States v. Bozarov, 974 F.2d 1037 (9th Cir. 1992) ................................................................................ 6
10

11 United States v. 1.16 Acres of Land, 585 F. Supp. 2d 901 (S.D. Tex. 2008) ................................................................. 11
12

13 United States v. 1.04 Acres, 538 F. Supp. 2d 995 (S.D. Tex. 2008) .................................................................. 11
14

15 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) .............................................................................................. 17
16

17

U.S. CONSTITUTION

18 Article I, § 7 (Presentment Clause) ................................................................1, 18-19 19 Article II, § 3 (Take Care Clause) ..................................................................1, 15-18
Nondelegation Doctrine (Separation of Powers)................................................. 1, 19 20

21

22

STATUTES

23 Illegal Immigration Reform and Immigrant Responsibility Act of 1996

24 P.L. 104-208, div. C., codified at 8 U.S.C. §1103 note............................................. 1

25 §102(a) ...........................................................................................................passim

26

§102(b) ........................................................................................................... passim §102(b)(1) ............................................................................................................. 11

27 §102(b)(2)-(4) ................................................................................................. 10, 11

28 §102(b)(3) ............................................................................................................. 11

CBD Reply Brief

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1

§102(c) ........................................................................................................... passim §102(c)(1).................................................................................................. 2, 3, 9, 11

2 §102(c)(2)............................................................................................................ 2, 3

3 ESA and NEPA 4

5

ESA, 16 U.S.C. § 1531 et seq.................................................................................... 1 §1540(g)(2)(A)(i) .................................................................................................. 19

6 NEPA, 42 U.S.C. § 4321 et seq. ............................................................................... 1

7 Other Statutes 8

9 8 U.S.C. §1103(b).................................................................................................... 11 8 U.S.C. § 1252(a)(2)(B)(ii) ...................................................................................... 3
10 12 U.S.C. § 1818(h)(1)-(2) ........................................................................................ 5 11 12 U.S.C. § 1818(i)(1) ............................................................................................... 5
40 U.S.C. § 3113...................................................................................................... 11 12 Otay Mountain Wilderness Act of 1999, Pub. L. 106-145...................................... 14

13 LEGISLATIVE HISTORY
14

15 151 Cong. Rec. H454 (daily ed., Feb. 9, 2005) (Statement of Rep. Sensenbrenner)....................................................................... 13
16

17

FEDERAL REGISTER NOTICES

18 82 Fed. Reg. 35,984 (August 2, 2017) .................................................................... 14

19

20

LAW REVIEWS

21 R. Craig Kitchen, “Negative Lawmaking Delegations: Constitutional Structure and Delegations to the Executive of Discretionary Authority to Amend, Waive,
22 and Cancel Statutory Text.” 23 40 Hastings Const. L.Q. 525 (2013) ................................................................18-19

24 Thomas W. Merrill, “Separation of Powers in American Constitutionalism: 25 Delegation and Judicial Review” 26 33 Harv. J. L. & Pub. Pol’y 73 (2010).................................................................. 14

27

28

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1

INTRODUCTION

2

As demonstrated in plaintiff Center for Biological Diversity’s opening brief,

3 the August 2, 2017 waiver of the National Environmental Policy Act (“NEPA”),

4 Endangered Species Act (“ESA”), and more than 30 additional laws in relation to

5 the San Diego border wall prototype and replacement projects was ultra vires to

6 the Department of Homeland Security (“DHS”) Secretary’s claimed authority

7 under § 102(c) of the Illegal Immigration Reform and Immigrant Responsibility

8 Act of 1996 (“IIRIRA”), as well as unconstitutional under the Take Care and

9 Presentment Clauses, and the broader Separation of Powers and Nondelegation

10 doctrines. Although several district courts have rejected constitutional challenges

11 to past uses of the § 102(c) waiver authority, the DHS Secretary’s August 2

12 invocation of § 102(c) was done more than a decade after the provision’s last use,

13 and comes long after the agency fulfilled its border fence obligations under §

14 102(b). As the August 2 waiver and DHS’s briefing makes clear, the current

15 administration is now attempting to transform § 102(c)—an unwise and dangerous

16 abdication of lawmaking authority to the executive branch to begin with—into a

17 perpetual and roving license to cast aside any legal obligations pertaining to any

18 border infrastructure project.

19

This unbounded interpretation is without merit, and the Trump

20 administration’s attempt to revive the § 102(c) waiver authority must be rejected

21 as ultra vires and unconstitutional. As detailed in the Center’s opening brief and

22 this reply brief, the language, structure, and legislative history of IIRIRA and its

23 amendments demonstrate that the scope of the § 102(c) authority must be limited

24 to specific border barriers required by Congress pursuant to § 102(b), which does

25 not include the border wall prototype or replacement projects. Alternatively, if the

26 Court finds that the August 2 waiver was not ultra vires, the waiver inescapably

27 violates the U.S. Constitution’s fundamental separation of powers principles, and

28 thus, the Center’s summary judgment motion should be granted.

CBD Reply Brief

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1

ARGUMENT

2 I. 3

The Court Has Jurisdiction to Determine Whether the August 2 Waiver Was Properly Within the Scope of § 102(c)(1)

4

As detailed in the Center’s opening brief (ECF No. 28-1), DHS cannot hide

5 behind the judicial review restrictions of § 102(c)(2) in order to escape review of

6 whether the August 2 waiver was in fact properly within the scope of § 102(c)(1)

7 to begin with. Much of DHS’s opposition/reply brief largely rehashes arguments

8 from its opening brief, including lengthy discussions of undisputed issues. The

9 Center, for example, does not dispute that “Congress plainly intended to bar all

10 judicial review of non-constitutional claims,” DHS Br. at 11-14, that “[t]he

11 legislative history and statutory context support the plain meaning of the

12 jurisdictional bar,” DHS Br. at 14-16, or that Congress intended to overcome the

13 presumption favoring judicial review, DHS Br. at 11, but only for those actions

14 properly within the scope of the § 102(c) waiver. As again detailed in section II

15 below, the August 2 waiver is not authorized by § 102(b) and therefore is not a

16 decision made “pursuant to” IIRIRA § 102(c)(1). Accordingly, the August 2

17 waiver is ultra vires and subject to review by this court, and the § 102(c)(2)

18 judicial review restrictions are simply inapplicable.

19

DHS continues to incorrectly assert that the Center’s arguments run

20 “against the plain reading of the statutory language,” and that the Center

21 “identifies no support” for its’ allegedly “aggressive interpretation” of § 102(c).

22 DHS Br. at 19. To the contrary, the Center’s interpretation is a plain language

23 argument, and is necessary to define the scope of the waiver authority. Without

24 this inquiry, it would be impossible to abide by Ninth Circuit precedent holding

25 that, “in interpreting IIRIRA, ‘we should construe narrowly restrictions on

26 jurisdiction.’” Spencer Enterprises, Inc. v. United States, 345 F.3d 683 (9th Cir.

27 2003); see also El Paso Natural Gas Co. v. United States, 632 F.3d 1272, 1276

28 (D.C. Cir. 2011) (where statute expressly prohibits judicial review, presumption of

CBD Reply Brief

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1 judicial review “dictates that such provisions must be read narrowly.”).1 Under

2 that plain language, the waiver authority under § 102(c)(2) only applies to

3 decisions made by the DHS Secretary “pursuant to” § 102(c)(1), which in turn

4 limits the waiver authority to the expeditious construction “of the barriers and

5 roads under this section.” The Center’s opening brief demonstrated in detail that

6 the scope of this provision must be interpreted as limited to the specific projects

7 mandated by Congress in § 102(b).

8

DHS’s argument that the court cannot consider this ultra vires argument is

9 also undermined by the primary cases it relies upon. In Spencer Enterprises, for

10 example, the Ninth Circuit considered a preclusive provision under IIRIRA, 8

11 U.S.C. § 1252(a)(2)(B)(ii), that is, in the government’s words, “strikingly similar”

12 to § 102(c). DHS Br. at 12. Far from cutting against plaintiffs, however, the court

13 specifically held that “[e]ven if a statute gives the Attorney General discretion …

14 the courts retain jurisdiction to review whether a particular decision is ultra vires

15 the statute in question,” 345 F.3d at 689, precisely the claim the Center has

16 brought in this case.

17

Although DHS attempts to distinguish Spencer Enterprises by claiming that

18 “here, nothing in the text demonstrates an intent to narrow the jurisdiction-limiting

19 provision,” DHS Br. at 20, § 1252(a)(2)(B)(ii) is in fact even more preclusive than

20 § 102(c), stating that “no court shall have jurisdiction to review” the specified

21 decisions by the Attorney General. Just as the court in Spencer Enterprises

22 looked beyond the preclusive language in order to determine the scope of that

23 provision, an ultra vires inquiry to determine whether the August 2 waiver was

24 within the scope of § 102(c) is proper here.

25

DHS also reiterates its argument that the Center “cannot evade Congress’

26 clear jurisdictional limitation” by alleging an ultra vires claim, again heavily

27

28 1 Unless indicated otherwise, case law citations omit internal citations.

CBD Reply Brief

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1 relying on Leedom v. Kyne, 358 U.S. 184 (1958),2 and the Supreme Court’s

2 subsequent consideration of that decision in Bd. of Governors of Fed. Res. Sys. v.

3 MCorp Fin. Inc., 502 U.S. 33 (1991).3 DHS Br. at 17-18. MCorp, however, is of

4 no help to DHS, and bears little resemblance to the Center’s ultra vires claim.

5

In that case, the Court reviewed the validity of an injunction requiring the

6 Federal Reserve Board to halt an enforcement action it had instituted against a

7 bank under the Federal Reserve Act. Although plaintiff MCorp’s action was not

8 authorized under that law, the Court of Appeals invoked Kyne for the principle

9 that the district court has jurisdiction because plaintiff alleged that the Board was

10 enforcing a regulation that exceeded its statutory authority. 502 U.S. at 42-43.

11 The Supreme Court reversed and found that an ultra vires claim was not

12 authorized. Contrary to DHS’s claims that “Congressional intent to prohibit ultra

13 vires review is at least as clear here as it was in MCorp,” the Court’s rejection of

14 an ultra vires claim in that case was premised instead on the availability of

15 judicial review under a separate statute, the Financial Institutions Supervisory Act

16 of 1966 (“FISA”):

17 The cases before us today are entirely different from Kyne because FISA

18

expressly provides MCorp with a meaningful and adequate opportunity for judicial review of the validity of the source of strength regulation. If and

19

when the Board finds that MCorp has violated that regulation, MCorp will have, in the Court of Appeals, an unquestioned right to review of both the

20 regulation and its application.

21

22

2 Contrary to DHS’s characterization, DHS Br. at 17-18, Kyne is not “the seminal ultra vires decision.” The ability to bring such an ultra vires claim was first

23

recognized by the Supreme Court decades earlier in American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 110 (1902).

24 3 As stated in the Center’s opening brief, it is not primarily relying on “Kyne and

25 its progeny,” DHS Br. at 18, involving inferred preclusion, but Dart v. United

26

States, 848 F.2d 217 (D.C. Cir. 1988) and related cases addressing explicit preclusion provisions similar to § 102. See McBryde v. Comm. to Review Circuit

27

Council Conduct & Disability Orders of the Judicial Conf. of the United States, 264 F.3d 52, 63 (D.C. Cir. 2001) (addressing two claims, one brought pursuant to

28

Kyne and one brought pursuant to Dart). The Center’s right to ultra vires review of the DHS August 2 waiver, however, exists under either line of cases.

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1 Id. at 43-44. Although the Court also noted the “clarity of congressional

2 preclusion of review in FISA,” as a secondary rationale, it described that factor as

3 inextricably “related” and bound up with the dominant reasoning underlying its

4 decision, the availability of review through administrative proceedings that

5 plaintiff sought to bypass. Id. (“As we have explained, however, in this case the

6 statute provides us with clear and convincing evidence that Congress intended to

7 deny the District Court jurisdiction to review and enjoin the Board’s ongoing

8 administrative proceedings.”) (emphasis added). In contrast, there are no

9 alternative avenues of judicial or administrative review available here to

10 determine whether the August 2 waiver is ultra vires to the scope of authority

11 delegated to the DHS Secretary pursuant to IIRIRA § 102.

12

In sum, MCorp was a timing case, distinct from the ultra vires

13 considerations here, where plaintiffs have no avenues of judicial or administrative

14 review by which to challenge the August 2 waiver as outside the scope of

15 authority provided to the DHS Secretary pursuant to § 102(c). Although the

16 appellate court framed its decision as ultra vires in MCorp, the Supreme Court’s

17 holding was in fact a rejection of plaintiff’s attempt to avoid exhausting the

18 extensive administrative and judicial remedies available to it. See MCorp Fin.,

19 Inc. v. Bd. of Governors of Fed. Res. Sys., 900 F.2d 852, 859 (5th Cir. 1990)

20 (“Because we conclude that MCorp is not required to exhaust its administrative

21 remedies in this circumstance, we turn to the merits of whether the Board has

22 authority to [take the challenged action.]”).4

23

Recognizing the limited significance of the Court’s ultra vires discussion

24 4 Indeed, contrary to DHS’s claim that “just as in MCorp Financial, Congress has

25 spoken clearly and directly to preclude all judicial review,” DHS Br. at 18, the

26

FISA provisions considered in MCorp are not preclusive at all when read as a whole. Although 12 U.S.C. § 1818(i)(1) limits jurisdiction “except as provided in

27

this section,” the preceding subparagraph, id. § 1818(h)(1)-(2) (“Hearings and judicial review”) provides aggrieved parties with extensive and specific rights to

28

both administrative and judicial review. These provisions starkly contrast with the utter lack of procedure or review available under IIRIRA § 102.

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1 in MCorp, the Ninth Circuit in United States v. Bozarov, 974 F.2d 1037, 1044 n.8

2 (9th Cir. 1992), specifically rejected the same type of expansive interpretation of

3 that case urged by DHS here. (“The government suggested at oral argument that

4 [MCorp] means that claims that an agency acted outside the scope of its delegated

5 authority are not reviewable if the statute precludes judicial review. We do not

6 believe that MCorp precludes judicial review of this type of claim under the

7 [Export Authorization Act] EAA.”). DHS weakly attempts to limit the language

8 of Bozarov, incorrectly asserting that the Ninth Circuit “expressly limited its

9 holding” to that law, DHS Br. at 21. To the contrary, the court’s language broadly

10 distinguished MCorp not only in relation to the EAA, but any other statute that

11 provides no other avenue of judicial review (such as § 102(c)):

12 The Court [in MCorp] emphasized that preclusion of review was

13

acceptable in part because the petitioner had a meaningful and adequate opportunity for judicial review of the regulation that he argued was

14

promulgated in excess of the agency’s statutory authority. The EAA presents an entirely different situation; petitioners have no other

15

opportunity to challenge regulations or their applications. We therefore believe that Dart still sets out the correct standard to be applied to the

16 EAA.

17 Id. Accordingly, the Bozarov court did indeed “narrowly cabin[] MCorp” in the

18 Ninth Circuit. DHS Br. at 20. In addition, the Ninth Circuit has in the past month

19 affirmed the availability of ultra vires review, stating that “[t]his cause of action,

20 which exists outside the APA, allows courts to review ultra vires actions by the

21 President that go beyond the scope of the President’s statutory authority.”

22 Hawai’i v. Trump, 2017 U.S. App. LEXIS 26513, *35-36 (9th Cir. Dec. 22, 2017)

23 (citing McAnnulty, 187 U.S. at 108, 110, and Kyne, 358 U.S. at 188-189).

24

Finally, DHS argues that the Center “cannot make expansive use of Dart”

25 because that case “stands for the exceedingly narrow proposition that a statute

26 precluding review is limited by its language.” DHS Br. at 22 (quoting McBryde,

27 264 F.3d at 63). However, as detailed in the Center’s opening brief and Section

28

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1 II, supra, the Center’s ultra vires argument is in fact rooted in the language of §

2 102(c), and is closely analogous to the factual circumstances in Dart. As stated in

3 that case, “Dart’s claim of agency error rests on an assertion about the plain

4 requirements of the EAA: that the statutory authority to ‘modify’ an ALJ decision

5 regarding export sanctions does not include the power to reverse that decision.”

6 Dart, 848 F.2d at 222. Similarly here, the Center’s claim of agency error rests on

7 an assertion about the plain requirements of IIRIRA § 102: that the statutory

8 authority to waive laws under § 102(c) does not include the border wall prototype

9 or replacement projects, because neither of those projects was specifically

10 mandated by Congress pursuant to § 102(b).

11

DHS further attempts to distinguish Dart on the grounds that “the EAA’s

12 language is quite dissimilar from the language at issue here.” DHS Br. at 22.

13 Indeed, the EAA and statutory provisions at issue in other cases are more

14 preclusive than § 102, and as the government concedes, these finality provisions

15 “have often been found to reflect an intent to preclude merits review but not ultra

16 vires review,” DHS Br. at 22. As explained in Ralpho v. Bell, 569 F.2d 607, 624

17 (D.C. Cir. 1977) (quoted in Dart, 848 F.2d at 222) (emphasis added):

18 In neither [line of cases] … was the demarcation of reviewability set by the

19

Court [i.e. between ‘facial’ and other statutory violations] adumbrated by Congress. Rather, Congress had expressed an unqualified intent to shut

20

off review, to which exception was made on ground that the legislature would not be deemed to have barred judicial comparison of agency action

21 with plain statutory commands unless such a ban was clearly articulated.

22 Although DHS insists that Congress “has employed far more unambiguous and

23 comprehensive language” here, that simply is not the case. As detailed in Dart,

24 numerous courts have permitted ultra vires review under statutes with far more

25 unambiguous and unqualified finality provisions than § 102(c), yet those courts

26 found such preclusion clauses to be “less than absolute.” Dart, 848 F.2d at 221.

27 The fact that Congress chose to provide for limited constitutional review under §

28 102 does not in any way translate to the requisite “absolute” intent to bar ultra

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1 vires review. See DHS Br. at 16 (“Standing alone, this express provision for

2 constitutional review but no other review indicates that ultra vires review was

3 intentionally excluded.”). Because Congress did not express any specific intent to

4 bar ultra vires review, let alone an “unqualified intent,” the Center’s claim is not

5 precluded.

6 II. The Scope of the § 102(c) Waiver is Limited to the Specific Border

7

Barriers Required Under § 102(b)

8

The Center’s opening brief demonstrates that IIRIRA § 102’s purpose,

9 statutory language and structure, and legislative history all dictate that the scope

10 of § 102(c) is limited to specific border barrier projects mandated under § 102(b).

11 See Hawai’i v. Trump, 2017 U.S. App. LEXIS 26516, *37-47 (engaging in

12 analysis of statutory text, statutory framework, and legislative history in

13 concluding President had exceeded constitutionally delegated authority). In

14 accordance with the presumption favoring judicial review—and of narrowly

15 interpreting exceptions to such review—the court in Dart placed the burden on the

16 government to show “‘clear and convincing evidence’ that Congress foreclosed

17 [its] jurisdiction over Dart’s claim.” Dart, 848 F.3d at 224. DHS, in contrast,

18 insists under the Kyne line of cases that the Center carries the burden of showing

19 that the challenged action contravenes “‘clear and mandatory’ statutory language.”

20 Pacific Maritime Association v. NLRB, 827 F.3d 1203, 1208 (9th Cir. 2016)

21 (quoting Kyne, 358 U.S. at 188).5 While the Center believes that the Dart test

22 governs here, the August 2 waiver is ultra vires regardless of which party bears

23 the burden, and under even the most stringent of statutory tests.

24

25 5 In Pacific Maritime Association, the court concluded “it appears likely that [the

decision at issue] violated the ‘clear and mandatory’ language of the Act.” 827

26 F.3d at 1209-1210. It declined to exercise ultra vires jurisdiction, however, after

27

finding that plaintiffs had two alternative paths of judicial review available to them. Id. at 1210 (“Nonetheless, because we conclude that the district court’s

28

exercise of jurisdiction was improper under [Kyne’s] second prong, we leave it to the Board to render a final decision on its own jurisdiction in the first instance.”).

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1

DHS goes to great lengths to argue against the Center’s “narrow reading,”

2 DHS Br. at 28, asserting that “the better reading is that § 102(a) remains available

3 to address locations not prioritized by Congress.” DHS Br. at 32-33. Notably,

4 however, DHS never squarely acknowledges the ramifications of its proposed

5 interpretation: that the DHS Secretary would be granted perpetual authority to

6 waive any laws she deems to interfere with any border infrastructure project, even

7 where such projects have not been mandated by Congress. This pugnacious

8 assertion of unchecked executive power is based on an implausible interpretation

9 of § 102(c), as well as § 102 as a whole, and must be rejected.

10

DHS’s errors begin with its insistence that the “plain terms” of the phrase

11 “this section” under § 102(c) “unambiguously refers to IIRIRA § 102 as a whole,”

12 DHS Br. at 27, and that § 102 “as a whole” contains an essentially unlimited grant

13 of authority under § 102(a) to build border barriers anytime and anywhere. As

14 detailed in the Center’s opening brief, this argument is flawed for at least three

15 reasons: 1) in the only judicial decision to address the scope of the § 102(c)

16 waiver authority, the court repeatedly and emphatically held that the scope is

17 limited to the specific projects identified under § 102(b), Sierra Club v. Ashcroft,

18 2005 U.S. Dist. LEXIS 44244 (S.D. Cal. Dec. 13, 2005); 2) the text of § 102

19 shows that Congress provided the necessary authorizations for DHS to build

20 border barriers under § 102(b), not under the broader policy directives of § 102(a);

21 and 3) the inconsistent usage of “section” and “subsection” under § 102,

22 undermines DHS’s argument that the reference to “this section” under § 102(c)(1)

23 “unambiguously” refers to any border project undertaken by the agency, not just

24 specific border barriers mandated under § 102(b). DHS’s halfhearted responses,

25 largely in footnoted asides, are wholly inadequate to counter these arguments.

26

In addressing the Sierra Club decision, for example, DHS proclaims that

27 the court was not in fact addressing the scope of the § 102(c) waiver authority, but

28 instead “merely referenc[ing] that fact … that the delegated authority was only

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1 being used for a construction that Congress has specified.” DHS Br. at 30 n. 21.

2 This interpretation is irreconcilable with the decision’s language. See id. at *32-

3 33 (“congressional intent in the revision is clear from the subject matter of Section

4 102(c): expedite completion of the [San Diego] triple fence … the language of the

5 congressional enactment cannot be construed otherwise than as specifically

6 targeting the subject matter of this case.”).6 The fact that the only court to

7 consider the scope of § 102(c) reached a conclusion directly at odds with DHS’s

8 interpretation casts far more doubt on its “plain meaning” argument than the

9 government acknowledges.7

10

DHS is also unduly dismissive of the Center’s argument that presuming

11 DHS is correct in asserting that Congress carefully adhered to the standardized

12 format for making internal references within § 102, such a presumption

13 undermines the government’s argument. Sections 102(b)(2)-(4), which address

14 easements, safety features, and appropriations, respectively, all specifically refer

15 to “this subsection” (i.e. subsection (b)), and thus it must be presumed that

16 Congress did not intend to provide these authorizations for actions taken beyond §

17 102(b). See Gozlon-Peretz v. United States, 498 U.S. 395, 404 (1991) (inclusion

18 of language in one section but omission in other presumed purposeful). Since

19

20 6 As a fallback, DHS alleges the court’s holding in Sierra Club did not track the

21

parties’ arguments, and thus must be “mistaken” because it was made “without the benefit of briefing on the subject.” DHS Br. at 31. DHS provides no authority

22

for this assertion other than citation to the government’s briefing in that case, which has no precedential or persuasive significance here.

23 7 The decision in Save Our Heritage v. Gonzales, 533 F. Supp. 2d 58 (D.D.C.

24

2008) is distinguishable. Plaintiffs in that case attempted to argue that DHS did not have the authority to finalize the last segment of the San Diego triple layer

25 fence because the Secure Fence Act amendments to § 102(b) removed reference to

that segment. Both IIRIRA as originally enacted and the 2005 REAL ID Act

26 expansion of the § 102(c) waiver primarily focused on the completion of that

27

precise 14-mile fence, however. In contrast, Congress has not directed the construction of the border wall prototype or replacement project at issue in this

28

case, and DHS has previously declared its current statutory barrier obligations under § 102(b) as complete.

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1 easements, safety features, and appropriations are all essential elements of border

2 barrier construction, DHS’s attempt to expansively read the waiver authority of §

3 102(c) beyond the specific projects mandated under § 102(b) must fail.

4

DHS responds to this argument in conclusory fashion, characterizing it as

5 “another meritless textual argument.” DHS Br. at 32 n. 23. DHS cannot have it

6 both ways—it cannot simultaneously insist that the reference to “this section”

7 under § 102(c)(1) “plainly” means that the agency enjoys a perpetual and

8 unbounded authority to waive any laws in sees fit in relation to any border

9 infrastructure project that it deems to be within its § 102 authority, while

10 summarily dismissing the significance and specificity of references to “this

11 subsection” elsewhere in the provision.

12

DHS further misstates the law when it claims that “§ 102(a) can logically be

13 implemented without relying on the instructions in § 102(b)(2)-(4)” because DHS

14 “has authority to acquire easements through 8 U.S.C. § 1103(b), and thus need not

15 rely on § 102(b).” DHS Br. at 32 n. 23. Section 102(b), however, specifically

16 references that provision, directing DHS to use its authority under § 1103(b) to

17 acquire the easements. Section 102(a), in contrast, does not. Judicial decisions

18 addressing eminent domain disputes consistently cite to § 102(b) as the statutory

19 authorization for border wall construction, not § 102(a). See, e.g., United States v.

20 1.04 Acres, 538 F. Supp. 2d 995, 998 (S.D. Tex. 2008) (“The authority to secure

21 the border is set out in … Section 102(b)(1) and (b)(3) … The authority for the

22 acquisition is then set out in 8 U.S.C. § 1103(b)(2)-(3).”); id. at 995 (noting that

23 the U.S. “filed a complaint in condemnation … under the authority granted by 8

24 U.S.C. § 1103(b)(3) and 40 U.S.C. § 3113.”); United States v. 1.16 Acres of Land,

25 585 F. Supp. 2d 901, 907 n. 3 (S.D. Tex. 2008) (court declining to reach argument

26 that “no provision in 8 U.S.C. § 1103 or [IIRIRA § 102] limits the Government to

27 only taking land for the construction of fencing pursuant to Section 102(b).”).

28

DHS also asserts that the Center’s reading is incompatible with the terms of

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1 IIRIRA as originally enacted and would render § 102(a) “largely superfluous.”

2 DHS Br. at 31. Neither assertion is correct. First, the Center’s interpretation is

3 perfectly consistent with the specific terms of IIRIRA § 102 as originally enacted

4 in 1996. Prior to IIRIRA, Congress had never provided the legacy Immigration

5 and Naturalization Service (“INS”) with direction to construct border barriers and

6 roads, so the general policy directive under § 102(a) (which remains the same

7 language today) “to install additional physical barriers and roads (including the

8 removal of obstacles to detection of illegal entrants),” while then “carrying out”

9 that goal through the specific identification of required barriers under § 102(b), is

10 a perfectly logical and straightforward interpretation. See, e.g. Bear Valley Mut.

11 Water Co. v. Jewell, 790 F.3d 977, 987-88 (9th Cir. 2015) (rejecting argument that

12 interpreting statutory provision similar to § 102(a) as only a broad policy directive

13 would render it superfluous); id. at 988 (“But here, Section 2(c)(2) [despite a

14 “shall” directive] merely announces a general policy goal that is reflected in the

15 substantive and procedural requirements of Section 4”).

16

Finally, DHS claims that the amendments made to § 102(b) under the 2006

17 Secure Fence Act and 2008 Consolidated Appropriations Act “further demonstrate

18 that this subsection merely [] reflects Congress’ shifting priorities,” and that §

19 102(a) remains available to address locations not prioritized by Congress.” DHS

20 Br. at 32-33. DHS further accuses the Center of “wild hypotheticals” concerning

21 potential uses of the § 102(c) waiver authority. DHS’s own argument concerning

22 the scope of § 102(c)—that it can bypass any laws for any border barrier or road

23 construction project in perpetuity and without specific authorization from

24 Congress—shows that there is nothing “wild” about the Center’s hypotheticals.

25 Indeed, DHS makes no effort to address the Center’s contention in its opening

26 brief that under the agency’s interpretation, it could rely on the provision to waive

27 laws in relation to wall construction along the northern Canadian border.

28

This claim of unencumbered executive branch authority is all the more

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1 unsupportable in light of legislative history. As DHS acknowledges, the

2 expansion of the § 102(c) waiver authority under the 2005 REAL ID Act was

3 catalyzed by, and intended to address the delay in the completion of the San Diego

4 triple layer fence. DHS attempts to brush this fact away by saying that “the

5 catalyst for Congressional action often does not define the outer limits of that

6 action” and that “Congress could easily have crafted language that simply

7 mandated the relevant construction near San Diego.” DHS Br. at 34. In the

8 limited debate on REAL ID Act that did occur on the House Floor, however, the

9 statements of its sponsor and supporters repeatedly and unambiguously described

10 the waiver authority as specific to the San Diego wall. See, e.g., 151 Cong. Rec.

11 H454 (daily ed., Feb. 9, 2005) (Statement of Bill Author Rep. Sensenbrenner)

12 (“[T]he REAL ID Act will waive Federal laws to the extent necessary to complete

13 gaps in the San Diego border security fence, which is still stymied 8 years after

14 congressional authorization.”). DHS’s argument would take this small wedge of

15 waiver authority specific to completion of the San Diego triple layer fence—

16 passed more than a dozen years ago under rushed and truncated legislative

17 procedures—and expand that authority to any border project undertaken at any

18 time along any U.S. borders. DHS is correct that the Center is “simply

19 incredulous,” DHS Br. at 33, that such an interpretation could be correct, as it

20 utterly lacks credulity.

21 III. The Doctrine of Constitutional Avoidance Compels a Holding that the

22

August 2 Waiver Is Ultra Vires to IIRIRA § 102

23

The Ninth Circuit has recently confirmed that “[i]t is a bedrock principle of

24 statutory interpretation that where an otherwise acceptable construction of a

25 statute would raise serious constitutional problems, the Court will construe the

26 statute to avoid such problems unless such construction is plainly contrary to the

27 intent of Congress.” Hawai’i v. Trump, 2017 U.S. App. LEXIS 26513, *52.

28 Here, DHS’s unbounded assertion of waiver authority under § 102(c) would

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1 provide an unelected cabinet official with the perpetual power to sweep aside any

2 law deemed to have even the remotest connection to any proposal characterized as

3 a border security project (although the government magnanimously suggests that

4 perhaps not “all border infrastructure construction requires a waiver”) (emphasis

5 in original). DHS Br. at 36-37. Indeed, DHS argues that it can waive laws that

6 are not applicable to the proposed project. See DHS Br. at 60 n. 48 (arguing the

7 waiver of Otay Mountain Wilderness Act of 1999, Pub. L. No. 106-145, does not

8 violate Presentment Clause in part because “the San Diego project area does not

9 include any portion of this designated area.”).8

10

If the government’s interpretation is correct, it raises serious Constitutional

11 questions, as described in section IV, supra, while the Center’s interpretation does

12 not. Although DHS is correct that previous courts have upheld the

13 constitutionality of § 102(c), these cases were all premised on the understanding

14 that the power granted was temporally limited and specific to the border fencing

15 required by Congress under § 102(b). As stated by one commenter nearly a

16 decade ago:

17 In the end, it is likely that the cumulative weight of the problems with

18

recognizing a constitutional right of review proved too much for the Court to take on. IIRIRA was an extreme measure, suggesting the potential need

19

for such a doctrine. But the border fence is nearing completion under the oversight of a new administration that (for now) is less given the

20

extravagant claims of inherent authority than its predecessor. Sometimes important constitutional questions are best left unresolved when the

21

urgency of the problem is likely to expire of its own course. Or so the Court may have concluded in its lengthy deliberations about whether to

22 hear County of El Paso.

23 Thomas W. Merrill, “Separation of Powers in American Constitutionalism:

24 Delegation and Judicial Review” 33 Harv. J. L. & Pub. Pol’y 73, 85 (2010)

25 (emphasis added). DHS’s claim that it can utilize § 102(c) to waive laws long after 26 statutory deadlines for the construction of barriers has passed, and in relation to the

27 8 The August 2 waiver applied to environmental laws, as well as laws protecting

28

archeological and paleontological sites, trails, historic sites and buildings, and Native American gravesites and religious freedom. 82 Fed. Reg. 35,984.

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1 construction of additional barriers (or other border infrastructure) that have not

2 been specifically directed by Congress, stretches the already expansive assertion of

3 unfettered prerogative from a decade ago into clearly unconstitutional territory. In

4 order “[t]o avoid the inescapable constitutional concerns raised by the broad

5 interpretation the Government urges us to adopt,” the Court must instead interpret

6 § 102(c) as “containing meaningful limitations.” Hawai’i v. Trump, 2017 U.S.

7 App. LEXIS 26513, at *55-56.

8 IV. The August 2 Waiver and the IIRIRA §102(c) Waiver are

9

Unconstitutional

10

In the event the Court concludes that it either lacks jurisdiction to hear a

11 non-constitutional ultra vires claim, or that the August 2, 2017 waiver is not ultra

12 vires, then the Court can, and must, strike down the waiver and/or § 102(c) itself

13 as unconstitutional.

14

A. The August 2 Waiver Violates the Take Care Clause

15

In its opening brief the Center established that the Take Care Clause of the

16 Constitution provides a cause of action allowing this court to examine whether the

17 Trump administration’s issuance of the August 2, 2017 waiver was at odds with

18 its obligation to “take Care that the Laws be faithfully executed.” Article II, § 3.

19 In response, DHS contends that a claim the executive branch acted outside its

20 statutory authority can never be a constitutional claim, that claims under the Take

21 Care Clause are not justiciable, and that any such claim can only be brought

22 against the President himself, not DHS. DHS Br. at 63-65. None of DHS’s

23 arguments are compelling.

24

First, this Court need not find, as DHS mischaracterizes the Center’s claim,

25 “that every claim that Executive Branch officials have violated a statutory

26 command should give rise to a constitutional claim.” DHS Br. at 63. Instead, the

27 Court need only find that the specific and unique circumstances of this case

28 provide for such review. Here, § 102(c) itself provides the Court with jurisdiction

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1 to hear the Center’s constitutional claim, in stark contrast to Dalton v. Specter,

2 511 U.S. 462 (1994), Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378

3 (2015) and other cases cited by DHS where constitutional review was not

4 specifically provided. Consequently, whether or not the Take Care Clause

5 provides a freestanding right of action in the absence of a judicial review

6 provision is not before the Court, and therefore the “sweeping implications” that

7 DHS harkens to are simply not present.9

8

Moreover, Dalton did not, as DHS argues, hold that a claim that that an

9 executive official exceeded their statutory authority can never be a constitutional

10 claim; rather it simply stated that such an action does not “always” (or “ipso

11 facto” or “necessarily”) result in a constitutional violation. Dalton, 511 U.S. at

12 473. Again, the Center does not seek a holding that any “garden variety” ultra

13 vires or otherwise unlawful agency action automatically gives rise to a justiciable 14 violation of the Take Care Clause. DHS Br. at 64.10

15

Instead, the question here is whether the administration’s invocation of a

16 plainly inapplicable waiver to justify non-compliance with over thirty statutory

17 provisions it is otherwise charged with “faithfully executing” runs afoul of the

18 mandate of the Take Care Clause. In other words, the administration is playing

19 lawmaker by invoking authority it lacks (because the § 102(c) waiver authority is

20 not applicable to the August 2, 2017 waiver) to justify refraining from taking

21

22

9 As noted in the Center’s opening brief, the Supreme Court has in fact repeatedly found a cause of action for constitutional challenges to federal actions even absent

23

such explicit judicial review provisions. Franklin v. Massachusetts, 505 U.S. 788, 801 (1992) (“the President’s actions may still be reviewed for constitutionality”

24

even if APA review is unavailable); Free Enterprise Fund v. Public Co. Accounting Bd., 561 U.S. 477, 491 (2010) (finding jurisdiction to consider

25 Appointments Clause and separation of powers claims); id. at n.2 (collecting cases

on the federal courts’ broad jurisdiction to consider all types of constitutional

26 claims); cf. Armstrong (finding no implied cause of action under the Supremacy

27 Clause against non-federal defendants).

28

10 Notably, Dalton involved a separation of powers claim, not a Take Care Clause claim, and therefore cannot reasonably be read to foreclose the Center’s claim.

CBD Reply Brief

16

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1 action it is required to take (compliance with NEPA, ESA and other laws). If ever

2 a circumstance implicated the Take Care Clause, this case is it. Youngstown,

3 Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952) (“[T]he President’s power

4 to see that the laws are faithfully executed refutes the idea that he is to be a

5 lawmaker.); Myers v. United States, 272 U.S. 52, 177 (1926) (“The duty of the

6 President to see that the laws be executed is a duty that does not go beyond the

7 laws.”); Kendall v. United States ex rel. Stokes, 37 U.S. 524, 613 (1838) (rejecting

8 the proposition that “the obligation imposed on the President to see the laws

9 faithfully executed, implies a power to forbid their execution”).

10

Finally, DHS contends that claims under the Take Care Clause can only be

11 brought against the President himself, but the very case DHS cites for this

12 principle actually allowed a constitutional claim to be brought against an

13 Executive Branch agency and officials. Free Enterprise Fund, 561 U.S. 477, 491

14 (2010). Rather than cite any actual authority for the proposition that only the

15 President can be sued under the Take Care Clause, DHS merely strings together

16 quotes from various cases for the uncontested proposition that ultimate authority

17 and responsibility for executive action rests with the President.

18

As the Center explained in its opening brief, the Supreme Court has

19 repeatedly held that the Take Care Clause applies to executive officers and other

20 subordinates of the President and has allowed suits against such officials to

21 proceed regardless of whether the President was a party. Youngstown, 343 U.S. at

22 582 (suit against Secretary of Commerce); Myers, 272 U.S. at 117 (“But the

23 President alone and unaided could not execute the laws. He must execute them by

24 the assistance of subordinates. This view has since been repeatedly affirmed by

25 this court.”); Printz v. United States, 521 U.S. 898, 922 (1997) (“The Constitution

26 does not leave to speculation who is to administer the laws enacted by Congress;

27 the President, it says, ‘shall take Care that the Laws be faithfully executed,’ Art.

28 II, § 3, personally and through officers whom he appoints.”) (emphasis added).

CBD Reply Brief

17

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1

The Center’s Take Care Clause claim is justiciable, and as explained in its

2 opening brief, provides a viable and compelling basis for striking down the

3 August 2, 2017 waiver.11

4

B. The August 2 Waiver Violates the Presentment Clause

5

DHS asserts that plaintiffs’ presentment clause claim “fails because a legal

6 requirement for a specific project is not an amendment or a repeal of a statute.”

7 DHS Br. at 60. As explained in the Center’s opening brief, DHS’s overly

8 formalistic interpretation misreads the holding in Clinton v. City of New York, 524

9 U.S. 417 (1988). That decision did not, as DHS alleges, turn on whether the

10 cancelled provisions remained in the U.S. code, but instead turned on the Court’s

11 analysis of the “legal and practical” effects of the veto authority.

12

Accordingly, the Court in Defenders of Wildlife v. Chertoff, 527 F. Supp. 2d

13 119 (D.D.C. 2007), was wrong to find no constitutional infirmity, and to conclude

14 that a waived law “retains the same legal force and effect as it had when it was

15 passed by both houses of Congress and presented to the President.” 527 F. Supp.

16 2d at 124. As explained recently by one commenter:

17 [Under the] REAL ID Act, when the Secretary waives other laws to further

18

the goal of constructing the border fence, each negated portion of other statutory text is a statutory bargain being overridden through a process less

19

rigorous—and thus far easier—than bicameralism and presentment. The groups represented in the negated bargains have no meaningful way to

20

participate in the negative lawmaking process when it is done at the Secretary’s ‘sole discretion’ merely through publication in the Federal

21

Register, and even if they had the ability to participate in the decisionmaking process, they would lack the power to block lawmaking

22 change and thereby obtain compromise from the majority.

23 R. Craig Kitchen, “Negative Lawmaking Delegations: Constitutional Structure

24 and Delegations to the Executive of Discretionary Authority to Amend, Waive,

25 and Cancel Statutory Text.” 40 Hastings Const. L.Q. 525, 598 (2013); id. at 560 26 (“[T]e REAL ID Act waiver authority is functionally equivalent to the

27

28

11 DHS response brief only attacks the justiciability of the Center’s Take Care Clause claim, not its merits.

CBD Reply Brief

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1 cancellation authority resoundingly struck down by Clinton.”).

2

After first claiming that the aggregate use of § 102(c) waivers—now

3 totaling approximately one third of the entire U.S.-Mexico border—only affected

4 a “tiny universe” of NEPA actions in its opening brief, DHS calls the Center

5 “hyperbolic” for characterizing the waivers as cumulatively significant. DHS,

6 however, does not explain at what point the use of such waivers would be

7 conceded to be equivalent to a partial repeal of the law, even though it still

8 remains in the U.S. Code. DHS’s inability to acknowledge that the waivers are

9 equivalent to a partial repeal is particularly striking given its claim of perpetual

10 waiver authority, after the agency had previously claimed that it had fulfilled its

11 specific border barrier construction obligations pursuant to § 102(b).

12

C. The August 2 Waiver Violates the Nondelegation Doctrine

13

To avoid duplicative briefing, the Center incorporates the Coalition

14 plaintiffs’ reply brief addressing DHS’s nondelegation doctrine arguments.12

15 V. The Center’s ESA Notice Was Adequate

16

DHS continues to press its meritless argument that the Center failed to

17 provide mandatory notice prerequisite to suit. Contrary to DHS’s assertion that 16

18 U.S.C. § 1540(g)(2)(A) “explicitly” addresses timing, the courts instead look to

19 the notice’s “overall sufficiency.” Accordingly, an “anticipatory notice” of an

20 ESA violation can be “sufficient and valid.” Cascadia Wildlands v. Scott Timber

21 Co., 190 F.3d 1024, 1030 (D. Or. 2016) (remanded on other grounds). Thus,

22 DHS’s objection that “the agency may modify or limit the effects of the

23 contemplated action” would not necessarily make the prior notice insufficient.

24 Indeed, the Ninth Circuit has specifically noted that a plaintiff “is not required to

25 12 The Center’s opening brief asserted that the August 2 waiver was made several

26 years after DHS has fulfilled its border barrier requirements under § 102(b), and is

27

thus distinguishable from past waivers considered in Sierra Club, Defenders, Save Our Heritage, and County of El Paso. DHS does not respond to this argument,

28

but instead asserts that “temporal necessity” constitutes a boundary on its delegated authority. DHS Br. at 54. This is obviously no limitation at all.

CBD Reply Brief

19

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1 list every single aspect or detail of every alleged violation.” Cmty. Ass’n for

2 Restoration of the Env’t v. Henry Bosma Dairy, 305 F.3d 943, 951 (9th Cir.

3 2002). Moreover, DHS’s argument that the citizen suit’s reference to “violations”

4 means that no valid notice can be given, and by extension no lawsuit can be filed,

5 until a violation has actually occurred has been specifically rejected by the Ninth

6 Circuit. Murrelet v. Pacific Lumber Co., 83 F.3d 1060, 1064 (9th Cir. 1996); see

7 also Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781 (9th Cir. 8 1995) (allowing suit for future violations).13 Here, the Center’s notice letters

9 clearly provided DHS notice of alleged ESA violations under section 7 and 9

10 related to the San Diego border wall prototype and replacement projects,

11 establishing jurisdiction under the ESA.

12

CONCLUSION

13

For the foregoing reasons, the Center respectfully requests the Court to

14 grant its motion for summary judgment on its Claims I-VI.

15 DATED: January 5, 2018

Respectfully submitted,

16

s/ Brian Segee

17

Brian Segee Brendan Cummings

18

Anchun Jean Su John Peter Rose

19

Attorneys for Plaintiff

20

21

22

23

24

13 See also Citizens for Better Env’t v. Union Oil Co., 861 F. Supp. 889, 912 (N.D. Cal. 1994)(“[T]he purpose for [the 60-day requirement] is to ensure that the

25 …government enforcement authorities are given some pre-suit notice so that they

26

have an opportunity to address the matter before a lawsuit is filed. This purpose is fully served by permitting pre-violation notice. Indeed, such notice may actually

27

further this goal, for it affords defendants … an opportunity to attempt to avert or mitigate anticipated violations … The Court holds that notice of a citizen

28

plaintiff’s intent-to-sue filed in anticipation of—and prior to—a violation of the Clean Water Act counts as valid and effective notice.”) (emphasis added).

CBD Reply Brief

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1

CERTIFICATE OF SERVICE

2 I hereby certify that on January 5, 2018, I electronically filed the Center for

3 Biological Diversity’s Reply Memorandum of Points and Authorities in Support

4 of Cross Motion for Summary Judgment with the Clerk of the Court using the

5 CM/ECF system, which will send notification of such to the attorneys of record.

6

7

s/ Brian Segee

8

Brian Segee

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 
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1 Gloria D. Smith (CA No. 200824)

2

Sierra Club 2101 Webster Street, Suite 1300

3 Oakland, CA 94612

4 Telephone: (415) 977-5532

5 Brett M. Paben (FL No. 0416045)

6

Defenders of Wildlife 535 16th Street

7 Denver, CO 80202

8

Telephone: (720) 943-0457 Pro hac vice

9 Anthony T. Eliseuson (IL No. 6277472)
10 Sarah K. Hanneken (OR No. 165104)

11 Animal Legal Defense Fund 919 SW Taylor Street, #400
12 Portland, OR 97205

13 Telephone: (707) 795-2533 Pro hac vice
14 UNITED STATES DISTRICT COURT
15 SOUTHERN DISTRICT OF CALIFORNIA
16

17 IN RE: BORDER INFRASTRUCTURE
18 ENVIRONMENTAL LITIGATION, 19
20

Case No. 17-cv-01215-GPC-WGV
Consolidated with Case No. 17-cv-01873-GPC-WVG Case No. 17-cv-01911-GPC-WVG

21

Coalition Plaintiffs’ Combined

Memorandum in Opposition to

22

Defendants’ Cross-Motion for Summary

23

Judgment and Reply to Defendants’

Motion for Summary Judgment 24

25

Judge: Hon. Gonzalo P. Curiel

Courtroom: 2D

26

Date:

February 9, 2018

27

Time:

1:30 p.m.

28

COAL. PLS.’ RESP. & REPLY MEM.

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1

TABLE OF CONTENTS

2 TABLE OF CONTENTS......................................................................................................I

3 TABLE OF AUTHORITIES .............................................................................................. II

4 INTRODUCTION ...............................................................................................................1

5 ARGUMENT .......................................................................................................................1

6 I. The Court has Jurisdiction Over Plaintiffs’ Non-Constitutional Claims ..................1

7

A. The Government’s Response demonstrates why this Court must exercise its

8

ultra vires jurisdiction. .................................................................................... 1

9

B. The Secretaries’ actions under subsections 102(a) and (b) are final agency

actions reviewable under the APA and not precluded by the review limiting

10

language in 102(c) ........................................................................................... 4

11

1. Review under the APA is available for the Secretaries’ actions

12

pursuant to subsections 102(a) and (b). ................................................ 4

13

2. Actions taken under subsections 102(a) and (b) are final agency

actions. .................................................................................................. 5

14 3. The jurisdictional-restricting provision in subparagraph 102(c)(2)(A)

15

is limited to subsection 102(c). ............................................................. 7

16 17 18 19
II. 20 21

4. The Secretary’s action under subsections 102(a) and (b) are unlawful and must be set aside...........................................................................10
C. Judicial review of the subsections 102(a) and (b) is necessary to avoid serious constitutional problems. .................................................................... 14
Plaintiffs’ Constitutional Claims Succeed...............................................................16
A. Section 102 delegates “forbidden legislative authority” in violation of Article I, section 1 of the U.S. Constitution. ................................................. 16

22

B. The Government fails to cite any case supporting Congress’s power to

23

eliminate both concurrent state and federal jurisdiction. .............................. 19

24 CONCLUSION..................................................................................................................20

25

26

27

28

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1

TABLE OF AUTHORITIES

2 Cases 3 Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) .......................................................4

4 Adamski v. Hart, 14-cv-0094, 2015 WL 4624007 (D.D.C. July 31, 2015).........................1

5 Adenariwo v. Fed. Mar. Comm’n, 808 F.3d 74 (D.C. Cir. 2015) .......................................6

6 Aid Ass’n for Lutherans v. U.S. Postal Serv., 321 F.3d 1166 (D.C. Cir. 2003) ............2, 10

7 Am. Power & Light Co. v. SEC, 329 U.S. 90 (1946).........................................................16

8 Arizona v. Tohono O’odham Nation, 818 F.3d 549 (9th Cir. 2016) .................................12

9 Arlington Central School Dist. Bd. of Ed. v. Murphy, 548 U.S. 29 (2006).......................10

10 Bd. of Governors of Fed. Reserve Sys. v. MCorp Fin., Inc., 502 U.S. 32 (1991) ...............4

11 Bennett v. Spear, 520 U.S. 154 (1997) ................................................................................7

12 Beno v. Shalala, 30 F.3d 1057 (9th Cir. 1994) ..................................................................11

13 Bowen v. Michigan Acad. of Family Physicians, 476 U.S. 667 (1986) ........................5, 15

14 Burrey v. Pac. Gas & Elec. Co., 159 F.3d 394 (9th Cir. 1998)...........................................9

15 Clark v. Martinez, 543 U.S. 371 (2005) ............................................................................14

16 Crawford v. Metro. Gov’t of Nashville & Davidson Cty., 555 U.S. 271 (2009)...............12

17 Cty. of El Paso v. Chertoff, No. EP-08-cv-196-FM, 2008 WL 4372693

18 (W.D. Tex. Aug. 29, 2008) ............................................................................................14

19 Dart v. United States, 848 F.2d 217 (D.C. Cir. 1988) .........................................................2

20 Defenders of Wildlife v. Chertoff, 527 F. Supp. 2d 119 (D.D.C. 2007) ......................14, 15

21 Fidelity Television, Inc. v. FCC, 502 F.2d 443 (D.C.Cir.1974) (per curiam).....................6

22 Field v. Clark, 143 U.S. 649 (1892) ..................................................................................16

23

Fisher v. Tucson Unified Sch. Dist., No. CV-74-00090-TUC-DCB, 2017 WL 5167238 (D. Ariz. Nov. 8, 2017)...................................................................12

24 Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985) ............................................. 11

25 Freedom to Travel Campaign v. Newcomb, 82 F.3d 1431 (9th Cir. 1996).......................15

26 Graham Cty. Soil & Water Conservation Dist. v. U.S. ex rel. Wilson,

27 545 U.S. 409 (2005) .........................................................................................................8

28

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1 Hawaii v. Trump, Case No. 17-17168, 2017 WL 6554184

2 (9th Cir. Dec. 22, 2017) ...................................................................................................1

3

In re Nat’l Sec. Agency Telecomm. Records Litig., 671 F.3d 881 (9th Cir. 2011) ................................................................................................................ 18

4 Keene Corp. v. United States, 508 U.S. 200 (1993) ............................................................4

5 King v. St. Vincent’s Hosp., 502 U.S. 215 (1991) ...............................................................8

6 Loving v. United States, 517 U.S. 748 (1996) .............................................................18, 19

7 Markham v. United States, 434 F.3d 1185 (9th Cir. 2006) .................................................2

8 McDonnell v. United States, 136 S. Ct. 2355 (2016) ..........................................................9

9 McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479 (1991) ...............................................9

10 Mistretta v. United States, 488 U.S. 361, 372–73 (1989)......................................14, 16, 19

11 Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,

12 463 U.S. 29 (1983) .........................................................................................................11

13 Oregon Nat. Desert Ass’n v. Bureau of Land Mgmt., 625 F.3d 1092

14 (9th Cir. 2010)................................................................................................................11

15 Plaquemines Tropical Fruit Co. v. Henderson, 170 U.S. 511 (1898).........................19, 20

16

Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. Dep’t of Agric., 415 F.3d 1078 (9th Cir. 2005) ..................................................... 11

17 Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43 (1993) .......................................................8

18 Roberts v. Sea–Land Services, Inc., 132 S.Ct. 1350 (2012) ................................................8

19 Save Our Heritage Org. v. Gonzales, 533 F. Supp. 2d 58 (D.D.C. 2008) ........................14

20 Socop-Gonzalez v. INS, 208 F.3d 838 (9th Cir.2000) .......................................................12

21 Spencer Enterprises, Inc. v. United States, 345 F.3d 683 (9th Cir. 2003) ........................12

22 Staacke v. U.S. Sec’y of Labor, 841 F.2d 278 (9th Cir. 1988).............................................2

23 Sturgeon v. Frost, 136 S. Ct. 1061 (2016)...........................................................................8

24 Tafflin v. Levitt, 493 U.S. 455 (1990) ................................................................................20

25 Touby v. United States, 500 U.S. 160 (1991) ..............................................................15, 19

26 U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950) ...........................................18, 19

27 United States v. 1.16 Acres of Land, More or Less, Situate in Cameron Cty., Tex.,

28 585 F.Supp.2d 901 (S.D. Tex. 2008) .............................................................................12

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1 United States v. Cooper, 750 F.3d 263 (3d Cir. 2014) ......................................................16
2 United States v. Gallegos, 613 F.3d 1211 (9th Cir. 2010) ................................................12
3 United States v. Richardson, 754 F.3d 1143 (9th Cir. 2014) ............................................16
4 Whitman v. Am. Trucking Assns., 531 U.S. 457 (2001) ........................................17, 18, 19
5 Zemel v. Rusk, 381 U.S. 1, 17 (1965) ................................................................................15
6 Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015) ......................................................................19
7 Constitutional Provisions
8 Article I, section 1 of the U.S. Constitution.......................................................................16
9 Statutes
10 42 U.S.C. § 7408(a)(2).......................................................................................................17
11 42 U.S.C. § 7409(b)(1).......................................................................................................17
12 5 U.S.C. § 551......................................................................................................................6
13 5 U.S.C. § 704......................................................................................................................6
14 5 U.S.C. § 706(2) .............................................................................................................5, 6
15 8 U.S.C. § 1103..................................................................................................................13
16 8 U.S.C. § 1103(b)(1)(C) ...................................................................................................12
17 8 U.S.C. § 1330..................................................................................................................13
18 Homeland Security Appropriations Act, 2008, Pub. L. No. 110-161, Div. E, 19 Title V § 564 (Dec. 26, 2007) ..........................................................................................9 20 IIRIRA § 102 .......................................................................5, 7, 8, 9, 12, 13, 15, 17, 18, 20 21 IIRIRA § 102(a) .............................................................................................5, 9, 10, 11, 12 22 IIRIRA § 102(b).............................................................................................5, 9, 10, 11, 12 23 IIRIRA § 102(b)(1) ..............................................................................................................9 24 IIRIRA § 102(b)(1)(A).........................................................................................................5 25 IIRIRA § 102(c) .....................................................................................9, 10, 14, 16, 18, 19 26 IIRIRA § 102(c)(1) ..............................................................................................................8 27 IIRIRA § 102(c)(2)(A)...............................................................................................8, 9, 10 28 Immigration Act of 1990, Pub. L. No. 101-649 § 542 (Nov. 29, 1990)............................13

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1 REAL ID Act, Pub. L. No. 109-13, Div. B (May 11, 2005) ...............................................9 2 Secure Fence Act of 2006, Pub. L. No. 109-367 § 2(b) ....................................................13 3 Other Authorities 4 151 Cong. Rec. E243 (daily ed. Feb. 15, 2005).................................................................10 5 151 Cong. Rec. H556 (daily ed. Feb, 10, 2015) ................................................................10 6 151 Cong. Rec. H559 (daily ed. Feb. 10, 2015) ................................................................10 7 152 Cong. Rec. S10520 (daily ed. Sept. 29, 2006)............................................................13 8 158 Cong. Rec. H3238 (daily ed. May 30, 2012)..............................................................13 9 73 Fed. Reg. 19,078 (Apr. 8, 2008) .....................................................................................6 10 82 Fed. Reg. 35,984 (Aug. 2, 2017)...................................................................................11 11 82 Fed. Reg. 42,829 ...........................................................................................................11 12 82 Fed. Reg. 8,793, 8,794 (Jan. 25, 2017) (Executive Order 13,767)...............................13 13 H.R. 418, 109th Cong. § 102 (2005)..................................................................................10 14 H.R. Rep. 109-72 (2005) (Conf. Rep.) ..............................................................................10 15 Merriam-Webster, https://www.merriam-webster.com/dictionary ...................................12 16 Michael John Garcia, Cong. Research Serv., R43975, Barriers Along the U.S. Borders: 17 Key Authorities and Requirements (2017) ......................................................................6 18 19 20 21 22 23 24 25 26 27 28

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1

INTRODUCTION

2

The Governments’ Response confirms the vastly broad reading it seeks to give to

3 section 102. That reading, however, cannot be squared with the clear statutory limits

4 imposed by congress, which renders the waivers here ultra vires, a conclusion this Court

5 has the authority to reach. Section I. And even if the Government’s broad reading of

6 section 102 were adopted by this Court, it would simply mean the statutory scheme lacks

7 the “clearly delineated general policy” or “boundaries of the delegated authority”

8 required to survive constitutional scrutiny under the non-delegation doctrine. Section II-

9 A. Either way, the Coalition Plaintiffs are entitled to summary judgment, because either

10 the Secretary’s conduct exceeds the clear statutory mandates or those statutory mandates

11 are essentially illusory rendering section 102 unconstitutional.

12
13 I.
14

ARGUMENT
THE COURT HAS JURISDICTION OVER PLAINTIFFS’ NONCONSTITUTIONAL CLAIMS

15

A. The Government’s Response demonstrates why this Court must

16

exercise its ultra vires jurisdiction.

17

The Government’s Response fails to identify any case that adopts the result it seeks

18 to compel here: complete elimination of all judicial review of even facially ultra vires

19 actions in excess of an agency’s statutory grant of authority. Whether as a matter of 20 inherent judicial authority1 or statutory construction, in every case where a court faced

21

22 1 The Government takes issue with the Coalition Plaintiffs’ characterization of this
23 authority as an inherent judicial power. Defs.’ Cross-Mot. for Summ. J. (ECF No. 35-1) (hereinafter “Defs. Br.”) at 18 n.10. Yet, the Ninth Circuit has repeatedly authorized such
24 power even in the face of “absolute” bars on judicial review, infra, strongly suggesting
25 the authority was an inherent judicial one. The ultra vires claim itself stems from inherent judicial authority rather than statute. See Hawaii v. Trump, Case No. 17-17168, 2017 WL
26 6554184, at *9 (9th Cir. Dec. 22, 2017). The Ninth Circuit also has followed the D.C.
27 Circuit in this context, where courts have recognized this inherent judicial power. E.g., Adamski v. Hart, 14-cv-0094, 2015 WL 4624007, at *6 (D.D.C. July 31, 2015) (an “ultra
28

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1 clear ultra vires conduct, such as the situation here, some avenue of judicial relief was

2 identified. The Ninth Circuit, for example, has repeatedly held it has such jurisdiction and

3 authority even in the face of “absolute” bars on judicial review. E.g., Markham v. United

4 States, 434 F.3d 1185, 1187 (9th Cir. 2006) (“The courts have fashioned two narrow

5 exceptions to this absolute jurisdictional bar. Courts retain jurisdiction to consider

6 constitutional challenges or claims for violation of a clear statutory mandate or

7 prohibition,” emphasis added); Staacke v. U.S. Sec’y of Labor, 841 F.2d 278, 281 (9th

8 Cir. 1988) (“Even where the statutory provision absolutely bars judicial review . . .

9 jurisdiction exists where defendant is charged with violating a clear statutory mandate or

10 prohibition,” (emphasis added)).

11

This result is not surprising. There is simply no credible reason to conclude that

12 Congress would intend to shield from judicial review conduct that clearly violated

13 Congress’s own statutorily imposed limits. Indeed, if Congress did intend such a result—

14 as the Government asserts—it would render the statutory scheme unconstitutional as an

15 essentially unlimited and unbridled grant of authority. See, infra, Section II.

16

Even in the Government’s primary case, Bd. of Governors of Fed. Reserve Sys. v.

17 MCorp Fin., Inc., 502 U.S. 32 (1991), the Supreme Court was careful to emphasize its

18 holding was based on the critical fact that Congress had provided MCorp “an

19 unquestioned right to review of both the regulation and its application,” in the Circuit

20 Court of Appeals. Id. at 43-44. In other words, there was an express affirmative grant of

21

22 vires claim derives from the contention that the agency has acted without the authority to
23 do so, and it is based on the inherent power of the federal courts ‘to reestablish the limits on [executive] authority’”) (emphasis added) (quoting Dart v. United States, 848 F.2d
24 217, 224 (D.C. Cir. 1988)); see also Aid Ass’n for Lutherans v. U.S. Postal Serv., 321
25 F.3d 1166, 1173 (D.C. Cir. 2003) (it “is clear that judicial review is available when an agency acts ultra vires,” even where Congress seeks to bar all review, because the claim
26 derives from historic judicial authority). Regardless, whether as a matter of inherent
27 judicial authority or statutory construction, the result is the same, and this Court has the authority to strike down the Secretary’s ultra vires acts.
28

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1 judicial review, which rendered an ultra vires claim in the district court unnecessary. And

2 it was because the statute “expressly provides MCorp with a meaningful and adequate

3 opportunity for judicial review of the validity of the source of strength regulation,” that

4 the Court held the district court lacked jurisdiction to enjoin the ongoing proceedings. Id.

5

Thus, MCorp does not stand for the proposition that Congress is empowered to

6 eliminate all judicial review of agency conduct even where, as here, it exceeds the clear

7 limits of statutory authority. If that were so the existence of another avenue of meaningful

8 and adequate judicial review would have been an unnecessary component of the Court’s

9 analysis, not a central one.

10

There can be no clearer statutory mandate than the one included in section

11 102(c)(1): Congress only intended the extraordinary waiver authority to be used when it

12 was actually “necessary to ensure expeditious construction of the barriers and roads under

13 this section.” (emphasis added); see generally Coal. Pls.’ Mem. in Supp. of Summ. J.

14 (ECF No. 29-1) (hereinafter “Coal. Pls. Br.”) at 13-20. The Government’s Response

15 recognizes that Congress spoke explicitly on multiple occasions between 2005 and 2008

16 when it believed key portions of the border wall project were not being completed with

17 sufficient expediency. Defs. Br. at 32-33. It was as part of this specific exigent time

18 period that Congress granted the extraordinary waiver authority to the Secretary to allow

19 her to complete the specific projects mandated by Congress.

20

Yet, the Government must also concede that no similar congressional action has

21 occurred for nearly a decade during which time the projects now sought to be conducted

22 could have been performed. The lack of similar congressional action—demanding these

23 projects be completed—for such a significant period of time is a significant factor cutting

24 against the Government’s interpretation. Notably, the Government relies exclusively on

25 the Secretary’s ipse dixit assertion regarding necessity: it points to no actual evidentiary

26 support that would suggest the waiver was necessary. Defs. Br. at 38. That lack of

27 evidence can be coupled with the obvious political reality: the only reason these waivers

28 were issued was due to campaign promises made by the current Administration. And the

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1 Administration has admitted it is political, not security, considerations that are driving 2 this process.2 This political context further shows there is no basis to assert the waivers

3 are necessary to complete these projects expeditiously. Rather, they are ultra vires acts

4 that facially exceed that plain statutory mandate.

5

The nature of the projects themselves further demonstrate the waivers are not

6 necessary. Unlike the prior projects that were addressing critical gaps in the border

7 infrastructure, see Coal. Pls. Br. at 18-20, the current projects are, at most, minor

8 improvements to already existing effective barriers. As the Government notes, the

9 “replacement” barriers are somewhat “taller” with “other features making them more

10 operationally effective.” Defs. Br. at 42. Neither the Secretary nor the Government offer

11 any explanation as to why those minor improvements require expedited construction that

12 cannot follow the ordinary course of environmental review processes. See also, infra, 10-

13 14; CBD’s Reply at 2-15.

14

B. The Secretaries’ actions under subsections 102(a) and (b) are final

15

agency actions reviewable under the APA and not precluded by the review limiting language in 102(c)

16

1. Review under the APA is available for the Secretaries’ actions

17

pursuant to subsections 102(a) and (b).

18

While “Congress has the constitutional authority to define the jurisdiction of the

19 lower federal courts,” Keene Corp. v. United States, 508 U.S. 200, 207 (1993), courts

20 restrict access to judicial review “only upon a showing of ‘clear and convincing

21 evidence’ of a contrary legislative intent.” Bd. of Governors of Fed. Reserve Sys. v.

22 MCorp Fin., Inc., 502 U.S. 32, 44 (1991) (citation omitted). Defendants attempt to frame

23

24 2 See Greg Miller et al., ‘This deal will make me look terrible’: Full transcripts of
25 Trump’s calls with Mexico and Australia, Wash. Post (Aug. 3, 2017), https://www.washingtonpost.com/graphics/2017/politics/australia-mexico-transcripts
26 (President Trump explaining to Mexican President Enrique Peña Nieto that the border
27 wall “is the least important thing that we are talking about, but politically this might be the most important [to] talk about.”).
28

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1 Plaintiffs’ arguments supporting traditional judicial review as simply relying on “the

2 strong presumption that Congress intends judicial review of administrative action.” Defs.

3 Br. at 10 (quoting Bowen v. Michigan Acad. of Family Physicians, 476 U.S. 667, 670

4 (1986)). Such simplification, however, ignores the canons of statutory construction and

5 the absence of “clear and convincing evidence” that Congress intended to preclude

6 judicial review of the non-waiver requirements it placed in section 102.

7

2. Actions taken under subsections 102(a) and (b) are final agency actions.

8

The Government brushes aside Plaintiffs’ Second Claim for Relief, alleging the

9 Secretary’s actions pursuant to subsection 102(a) and subparagraph 102(b)(1)(C) are final

10 agency actions which are “arbitrary, capricious, an abuse of discretion, or otherwise not

11 in accordance with law, and without observance of procedure required by law. 5 U.S.C. §

12 706(2).” Coal. Pls.’ 1st Am. Compl. (ECF No. 23) at ¶ 93. The totality of Defendants’

13 response to this argument is that “the only final agency actions that Plaintiffs challenge

14 are the issuance of the waivers.” Defs. Br. at 14, n. 5. Other than this conclusory footnote,

15 Defendants fail to provide a basis for the assertion that no other final agency action can

16 occur under section 102. The Secretary’s actions taken pursuant to subsections 102(a)

17 and (b), however, are reviewable, final agency actions.

18

As recognized in Save Our Heritage Organization, the Secretary’s authority to

19 construct border barriers under section 102 is “derived from subsection (a).” 533 F. Supp.

20 2d at 61. Further, subsection 102(b) provides the Secretary the means to “carry[] out”

21 Congress’s directive set forth in subsection (a), and imposes additional specific

22 requirements as well. Id. at 60; IIRIRA § 102(b)(1)(A). Paragraph 102(c)(1) merely

23 provides the Secretary a tool she may employ when she deems waiving laws is

24 “necessary to ensure expeditious construction,” not the authority for the construction of

25 border infrastructure itself. That authority is found in sections (a) and (b) alone. These

26 two sections provide all the Secretary’s authority to construct border infrastructure under

27

28

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1 section 102.3 DHS does, in fact, undertake border construction projects without

2 employing the supplemental waiver authority, which the Secretary has done, particularly

3 “more recently.” Michael John Garcia, Cong. Research Serv., R43975, Barriers Along

4 the U.S. Borders: Key Authorities and Requirements 21 (2017).4

5

Given that subsections 102(a) and (b) are available to the Secretary independently

6 from 102(c)—which does not affect (a) and (b), see Part I.B.II.2 infra—the question is

7 simply whether they are final agency actions subject to review under the APA. Plaintiffs

8 assert they are, and the Government’s contradictory conclusion does not withstand

9 scrutiny. The APA provides that “[a]gency action made reviewable by statute and final

10 agency action for which there is no other adequate remedy in a court are subject to

11 judicial review.” 5 U.S.C. § 704. Since no other statute makes the actions in subsections

12 102(a) and (b) at issue in this case reviewable, they are reviewable directly under the

13 APA as final agency actions. “Agency action” includes “the whole or a part of an agency

14 rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.”

15 5 U.S.C. § 551(13). The scope of judicial review prescribed requires courts to “hold

16 unlawful and set aside agency action, findings, and conclusions found to be” in violation

17 of the requirements of 5 U.S.C. § 706(2).

18

Whether these acts are final “is determined not ‘by the administrative agency’s

19 characterization of its action, but rather by a realistic assessment of the nature and effect

20 of the order sought to be reviewed.’” Adenariwo v. Fed. Mar. Comm’n, 808 F.3d 74, 78

21 (D.C. Cir. 2015) (citation omitted). “Finality,” moreover, “is a pragmatic, flexible

22 concept,” Assiniboine & Sioux Tribes of Ft. Peck Indian Reservation v. Bd. of Oil & Gas

23 Conservation of State of Mont., 792 F.2d 782, 789 (9th Cir. 1986). In general,

24

two conditions must be satisfied for agency action to be “final”: First, the

25
26 3 At least prior to December 31, 2008. See Pub. L. No. 110-161, Div. E, Tit. V § 564. 27 4 Prior to August 2, 2017, the last waiver was issued on April 8, 2017. See 73 Fed. Reg.
19,078 (Apr. 8, 2008). 28

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1

action must mark the “consummation” of the agency’s decisionmaking

2

process—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which “rights or obligations have been

3

determined,” or from which “legal consequences will flow,”

4 Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (citations omitted).

5

These requirements are met here. First, pursuant to subsection 102(a), the

6 Secretary found it “necessary to install additional physical barriers and roads.” Second,

7 these actions “alter the legal regime to which the action agency is subject,” id. at 178, by

8 allowing the Secretary to pursue “[c]onstruction of fencing and road improvements along

9 the border” in accordance with subsection (b). The decision to invoke waivers pursuant to

10 102(c)(1) is irrelevant to the agency actions that result in actual construction. The

11 Waivers are distinct final actions for which Congress has provided judicial review limited

12 to constitutional claims, albeit improperly. Regardless, since subsections 102(a) and (b)

13 are final agency actions and outside the scope of subparagraph 102(c)(2)(A), the Court 14 may review these actions pursuant to 5 U.S.C. § 706(2).5

15

3. The jurisdictional-restricting provision in subparagraph

16

102(c)(2)(A) is limited to subsection 102(c).

17

By claiming subsections 102(a) and (b) are subject to the (c) judicial review, the

18 Government also contradicts its conclusion that actions under subsections 102(a) and (b)

19 are not final agency actions. Such a reading of the statute contravenes legal precedent.

20 Coalition Plaintiffs agree with the Government’s Response “the statutory text is plain

21 enough to dispose of the question,” Defs. Br. at 10-11, of whether intended to bar all

22 judicial review of non-constitutional claims, but it presents the incorrect conclusion under

23 pretext of ordinary interpretation. Quite simply, if Congress intended to limit judicial

24 review to apply to all of section 102, it would have said so explicitly or created a new

25 5 If the Court does find APA review is precluded, the arguments that follow should be 26 considered “through the lens of ultra vires review.” Defs. Br. at 41 n. 32. See also Hawaii
27 v. Trump, No. 17-17168, 2017 WL 6554184, at *9 (9th Cir. Dec. 22, 2017) (if no APA “final agency action … courts are allowed to review ultra vires actions”).
28

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1 subsection 102(d). The attempt to extend reach of subparagraph 102(c)(2)(A) beyond

2 subsection 102(c) is an exercise of artful distraction.

3

As an example, to support the notion that the court is stripped of jurisdiction over

4 the entirety of section 102, Defendants must read the final sentence of subparagraph

5 (2)(A) in isolation. See Defs. Br. at 12. Statutory language, however, “cannot be

6 construed in a vacuum. It is a fundamental canon of statutory construction that the words

7 of a statute must be read in their context and with a view to their place in the overall

8 statutory scheme.” Sturgeon v. Frost, 136 S. Ct. 1061, 1070 (2016) (quoting Roberts v.

9 Sea–Land Services, Inc., 132 S.Ct. 1350, 1357 (2012); see also Graham Cty. Soil &

10 Water Conservation Dist. v. U.S. ex rel. Wilson, 545 U.S. 409, 415 (2005) (“Statutory

11 language has meaning only in context.”); King v. St. Vincent’s Hosp., 502 U.S. 215, 221

12 (1991) (“the meaning of statutory language, plain or not, depends on context”).

13

Context, plain meaning, and legislative history confirm the limited applicability of

14 102(c)(1). Subparagraph (c)(2)(A) of provides:

15

In general.—The district courts of the United States shall have exclusive

16

jurisdiction to hear all causes or claims arising from any action undertaken, or any decision made, by the Secretary of Homeland Security pursuant to

17

paragraph (1). A cause of action or claim may only be brought alleging a

18

violation of the Constitution of the United States. The court shall not have jurisdiction to hear any claim not specified in this subparagraph.

19 The reference to “paragraph (1)” concerning exclusive jurisdiction is a reference to

20 the waiver authority in paragraph 102(c)(1), and the reference to this “subparagraph” is to

21 (c)(2)(A). Both references are clear and unambiguous. In subparagraph 102(c)(2)(A),

22 Congress was very specific about its reference to “paragraph (1)” and used the phrase

23 “this subparagraph” within subparagraph (c)(2)(A), the only topic of which is the waiver

24 authority. Had the Congress intended to limit judicial review to decisions under other

25 subsections, it needed to do so explicitly and would have added new subsection (d) that

26 would cover 102(a), (b), and (c). See Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 63-

27 64 (1993) (courts “find an intent to preclude” judicial review “only if presented with

28

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1 ‘clear and convincing evidence.’” (citations omitted)).

2

Moreover, the third sentence of (c)(2)(A)—“The court shall not have jurisdiction

3 to hear any claim not specified in this subparagraph”—should not be read out of context

4 to broadly preclude all causes of action under section 102. When read with the preceding

5 two sentences, this sentence is an affirmative statement regarding the scope of a court’s

6 jurisdiction to review waiver decisions. The third sentence serves only as a limitation on

7 the grant of jurisdiction in the two previous sentences—for courts to hear causes of action

8 concerning waivers—and does not impliedly limit causes of actions unrelated to waiver

9 decisions. See McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 496 (1991) (Congress

10 presumed to have knowledge of rules of statutory construction and the “well-settled

11 presumption favoring interpretations … that allow judicial review”).

12

Legislative history reinforces this conclusion. The original, limited subsection

13 102(c) waiver enacted in 1996 contained no judicial review restrictions. When Congress

14 expanded the waiver in the REAL ID Act and limited judicial review, it did so in the

15 same subsection (c). Its failure to add a new subsection indicates that subparagraph

16 (2)(A) applies only to waiver decisions. Amendments to section 102 made by the

17 Homeland Security Appropriations Act, 2008, Pub. L. No. 110-161, Div. E, Title V § 564

18 (Dec. 26, 2007), further undermine the judicial review restrictions extending beyond the

19 waivers. When Congress added the consultation requirement in 102(b)(1)(C)—two years

20 after expanding the waiver provision in the REAL ID Act of 2005, Pub. L. No. 109-13,

21 Div. B—it also included a savings provision, which, in part, states: “Nothing in this

22 subparagraph [regarding consultation] may be construed to—“(I) create or negate any

23 right of action for a State, local government, or other person or entity affected by this

24 subsection.” IIRIRA § 102(b)(1)(C)(ii). If judicial review of 102(a) and (b) was barred or

25 limited to constitutional challenges, this language would be unnecessary. Such a

26 construction must be avoided. Burrey v. Pac. Gas & Elec. Co., 159 F.3d 388, 394 (9th

27 Cir. 1998) (court “must avoid any construction that renders some of its language

28 superfluous.”); see also McDonnell v. United States, 136 S. Ct. 2355, 2359 (2016)

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1 (presumed “that statutory language is not superfluous.”).

2

The origins of the subsection 102(c) in REAL ID Act and deliberations in the

3 House of Representatives are yet further support for this interpretation. As passed by the

4 House, paragraph 102(c)(2) would have required allowed “no judicial review,” and was

5 explicitly limited to waivers. H.R. 418, 109th Cong. § 102 (2005) (prohibition limited to

6 “any cause or claim arising from any action undertaken, or any decision made, by the

7 Secretary of Homeland Security pursuant to paragraph (1)”), an understanding expressed

8 by House representatives. See, e.g., 151 Cong. Rec. E243 (daily ed. Feb. 15, 2005)

9 (statement of Rep. Udall (bill “removes any judicial review of the waiving of these

10 laws.”); 151 Cong. Rec. H556 (daily ed. Feb, 10, 2015) (Cong. Research Serv. mem. (bill

11 “removes judicial review from such waiver decisions”)); id. at H559 (statement of Rep.

12 Jackson-Lee (“bill also removes any judicial review of the waiving of these laws.

13

The Senate never took up discussion of section 102, as the REAL ID Act was

14 included as part of an emergency appropriations bill. In conference, the 102(c) that

15 passed the House was revised in several respects, including not mandating the Secretary

16 to use waivers and providing for some judicial review of waivers. See H.R. Rep. 109-72,

17 at 171-72 (2005) (Conf. Rep.). Given that every change to subsection 102(c) moderated

18 the Secretary’s authority and restrictions on review, concluding that the Conferees meant

19 to broaden the scope of 102(c)(2)(A) is illogical, and the language amended in conference

20 should not be read to restrict review more so than that of H.R. 418.

21

The Secretary, therefore, cannot seek to evade the consequences of this language

22 by seeking to indirectly preclude judicial review by waiving the applicability of the APA.

23

4. The Secretary’s action under subsections 102(a) and (b) are unlawful

24

and must be set aside.

25

Once the Secretary decides to use the authority of subsections 102(a) and (b), she

26 must comply with those requirements and procedures Congress set forth. See Aid Ass’n

27 for Lutherans v. U.S. Postal Serv., 321 F.3d 1166, 1173 (D.C. Cir. 2003) (courts “cannot

28 abdicate their responsibility to insure compliance with congressional directives setting the

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1 limits on that discretion.”); Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut.

2 Auto. Ins. Co., 463 U.S. 29, 48 (1983) (“agency must cogently explain why it has

3 exercised its discretion in a given manner”); Ranchers Cattlemen Action Legal Fund

4 United Stockgrowers of Am. v. U.S. Dep’t of Agric., 415 F.3d 1078, 1095 (9th Cir. 2005)

5 (exercising discretion must be “consistent with the statutory requirements”). Thus, under

6 this claim, Coalition Plaintiffs are not challenging the waivers, but the validity of the final

7 action that was taken pursuant to the authority of 102(a) and (b). See Oregon Nat. Desert

8 Ass’n v. Bureau of Land Mgmt., 625 F.3d 1092, 1119 (9th Cir. 2010) (“reviewing the

9 validity of the final agency action that was taken, not—as in SUWA—demanding that the

10 agency take some action that it has not taken.”).

11

For her use of the authority under subsection 102(a), she made the determination

12 that these border infrastructure projects were “necessary,” but has failed to articulate a

13 basis for this, making the determination arbitrary, capricious, and not in accordance with

14 law. “It is well-established that an agency’s action must be upheld, if at all, on the basis

15 articulated by the agency itself.” Motor Vehicle Mfrs., 463 U.S. at 50. “Thus, while

16 formal findings are not required, the record must be sufficient to support the agency

17 action, show that the agency has considered the relevant factors, and enable the court to

18 review the agency’s decision.” Beno v. Shalala, 30 F.3d 1057, 1073-74 (9th Cir. 1994).

19

If the record … does not support the agency action, if the agency has not

20

considered all relevant factors, or if the reviewing court simply cannot evaluate the challenged agency action on the basis of the record …, the

21

proper course … is to remand to the agency.

22 Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985).

23

In the present case, the only agency record regarding the findings are the

24 Secretary’s mere assertions in the Federal Register notices. See 82 Fed. Reg. 35,984

25 (Aug. 2, 2017); 82 Fed. Reg. 42,829 (Sept. 12, 2017). Defendants may be correct that

26 “nothing in the Act requires the Secretary to publish more granular data to prove that the 27 finding committed to his or her ‘sole discretion’ was warranted.” Defs. Br. at 40.

28 However, “[e]ven where statutory language grants an agency ‘unfettered discretion,’ its

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1 decision may nonetheless be reviewed if [there is] a ‘“meaningful standard’ by which this

2 court may review its exercise of discretion.’” Spencer Enterprises, Inc. v. United States,

3 345 F.3d 683, 688 (9th Cir. 2003) (citation omitted).

4

Despite the lack of definitions in section 102, there are meaningful standards for

5 the Court to apply to the requirements of 102(a) and (b), such as the “areas high illegal

6 entry” and “vicinity of the United States border.” When a statute does not define a term,

7 courts “interpret that term by employing the ordinary, contemporary, and common

8 meaning of the words.” Arizona v. Tohono O’odham Nation, 818 F.3d 549, 556 (9th Cir.

9 2016) (citation omitted)); see also, e.g., Crawford v. Metro. Gov’t of Nashville &

10 Davidson Cty., 555 U.S. 271, 276 (2009) (words undefined in statutes carry their ordinary

11 meaning). This is just what the court in United States v. 1.16 Acres of Land, More or

12 Less, Situate in Cameron County., Texas did to interpret IIRIRA provision authorizing

13 acquisition of lands “adjacent to” and “in the vicinity of” the border. 585 F.Supp.2d 901,

14 907 (S.D. Tex. 2008) (analyzing terms in subsection 102(a) and 8 U.S.C. § 1103(b)(1)).

15

Here, the meaning of “high” as used in “areas of high illegal entry” connotes a

16 relative description, such as “high illegal entry” as compared to other “areas.” See

17 Merriam-Webster, high (updated Jan. 1, 2018), https://www.merriam-webster.com/

18 dictionary/high (“1a: rising or extending upward … c: … passing above the normal level

19 … 2a(1): advanced toward the acme or culmination … 8: of greater degree, amount …

20 than average, usual, or expected”). Thus, “areas of high illegal entry” must at least mean

21 the opposite of “areas of low illegal entry” in comparison. See Fisher v. Tucson Unified

22 Sch. Dist., No. CV-74-00090-TUC-DCB, 2017 WL 5167238, at *3 (D. Ariz. Nov. 8,

23 2017) (Court assuming that “a ‘high-achieving’ school … to be the opposite of ‘schools

24 in which students are underachieving academically.’)

25

Defendants’ insist, however, on interpreting the phrase “areas of high illegal entry”

26 to be equivalent to those areas over which Border Patrol lacks “operational control.” See,

27 e.g., Defs. Br. at 44-45. “Congress has expansively defined ‘operational control’ of the

28 border—‘the prevention of all unlawful entries into the United States …’” Id. at 45

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1 (emphasis in original) (quoting Pub. L. No. 109-367 § 2(b)).6 If this were the standard

2 Congress intended, however, there would be no need for the specific barrier construction

3 authority in section 102 because of Secretary’s general authority to build border control

4 facilities found in 8 U.S.C. § 1103. Supposing Congress did intend to grant the Secretary

5 authority to waive laws virtually anywhere along the borders, there would also be no

6 need for including any limiting language.7

7

Further, once the Secretary made the decision to use the authority of subsection

8 102(a), she was bound to follow the procedure and limitations set forth by Congress in

9 subsection 102(b). The record does not document that the Secretary complied with the

10 requirements set forth in (b). Specifically, subparagraph 102(b)(1)(C) requires the

11 Secretary to consult not only with other federal agencies but “States, local governments,

12 Indian tribes, and property owners” as well. The only evidence the Government provides

13 are conclusory statements “CBP consulted with relevant stakeholders, including the U.S.

14 Fish and Wildlife Service,” Defs. Br. at 7, references to decade-old testimony of its

15 commitment to “continued consultation,” id., and its consultants conducted site surveys

16 near the prototype walls three weeks after the waiver was issued, Defs. Ex. 14, ECF No.

17
18 6 This definition was adopted in Executive Order 13,767 § 3(h), 82 Fed. Reg. 8,793, 8,794 (Jan. 25, 2017), and also may be impossible to meet. See, e.g., 158 Cong. Rec.
19 H3238 (daily ed. May 30, 2012) (statement of Rep. Thompson (it may be “a laudable 20 goal, it is also extraordinarily ambitious”)). 152 Cong. Rec. S10520 (daily ed. Sept. 29,
2006) (statement of Sen. Kennedy (“Trying to gain operational control of the borders is 21 impossible…” (quoting DHS Secretary Tom Ridge).
22 7 Should it be necessary to find congressional language to determine the meaning of 23 phrases in section 102, the Court may look to Immigration Enforcement Account
established in 8 U.S.C. § 1330. In the Immigration Act of 1990, Pub. L. No. 101-649 § 24 542 (Nov. 29, 1990), Congress authorized the use of these funds “for the repair, 25 maintenance, or construction on the United States border, in areas experiencing high
levels of apprehensions of illegal aliens, of structures to deter illegal entry into the United 26 States.” Id. at § 542(a) (codified at 8 U.S.C. § 1330(b)(3)(A)(iii). Pre-dating IIRIRA, this 27 phrase is more valuable for determining Congress’s intent for “areas of high illegal entry”
than the dissimilar, post-REAL ID Act language suggested by the Defendants. 28

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1 18-2 (PageID.452). Ongoing discussions with CPB’s limited, agency-selected “relevant”

2 stakeholders, however, falls short of the duties under subparagraph 102(b)(1)(C).

3

C. Judicial review of the subsections 102(a) and (b) is necessary to avoid

4

serious constitutional problems.

5

If there is ambiguity in the reach 102(c), the canon of constitutional avoidance

6 directs that the more limited restriction on judicial review prevails. Clark v. Martinez,

7 543 U.S. 371, 385 (2005) (when “statute is found to be susceptible of more than one

8 construction … the canon functions as a means of choosing between them.” (emphasis in

9 original)). “When deciding which of two plausible statutory constructions to adopt, a

10 court must consider the necessary consequences of its choice. If one of them would raise

11 a multitude of constitutional problems, the other should prevail.” Id. at 380-81.

12

Constitutional avoidance also explains why federal courts have not “struck down a

13 challenged statute on delegation grounds” since 1935. Mistretta v. United States, 488 U.S.

14 361, 373 & n.7 (1989) (“nondelegation doctrine principally has been limited to the

15 interpretation of statutory texts, and, more particularly, to giving narrow constructions to

16 statutory delegations that might otherwise be thought to be unconstitutional.”).

17 Accordingly, every previous court upholding the delegation of the Secretary’s waiver

18 authority read subsection 102(c) narrowly and relied on phrases such as “necessary,” “in

19 the vicinity of the … border,” and “areas of high illegal entry” as expressly limiting the

20 Secretary’s authority. See Defenders of Wildlife v. Chertoff, 527 F. Supp. 2d 119, 128

21 (D.D.C. 2007) (“Secretary may only exercise the waiver authority for the ‘narrow

22 purpose’ prescribed by Congress” (quoting Sierra Club, No. 04-cv-272, p. 10, 2005 U.S.

23 Dist. LEXIS 44244, at *20)); Save Our Heritage Org. v. Gonzales, 533 F. Supp. 2d 58,

24 63 (D.D.C. 2008) (agreeing with analysis in Defenders and noting “the Secretary is only

25 authorized to seek ‘expeditious construction’ of barriers and roads ‘to deter illegal

26 crossing in areas of high illegal entry’” (citations omitted)); Cty. of El Paso v. Chertoff,

27 No. EP-08-cv-196-FM, 2008 WL 4372693, at *4 (W.D. Tex. Aug. 29, 2008) (adopting

28 analysis of Sierra Club, Defenders, and Save Our Heritage).

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1

As the court in Defenders of Wildlife v. Chertoff summarized,

2

to exercise the waiver authority…, Congress has required the Secretary to

3

determine if the waiver is “necessary to ensure expeditious construction of the barriers and roads under …” … he is directed to construct fencing only

4

“in the vicinity of the United States border to deter illegal crossings in areas

5

of high illegal entry…” This … meets the requirements of the Supreme Court’s nondelegation cases. The “general policy” is “clearly delineated”—

6

i.e. to expeditiously “install additional physical barriers and roads ... to deter

7

illegal crossings in areas of high illegal entry.” And, the “boundaries” of the delegated authority are clearly defined by Congress’s requirement that the

8

Secretary may waive only those laws … “necessary to ensure expeditious

9

construction.”

10 527 F. Supp. 2d at 127 (citations omitted).

11

These courts expected section 102’s limiting requirements to “meaningfully

12 constrain” the Secretary’s discretion by creating “an intelligible principle to which the

13 person or body authorized to [act] is directed to conform.” Touby v. United States, 500

14 U.S. 160, 165 (1991). Defendants, on the other hand, maintain that “[n]one of the

15 statutory phrases unambiguously preclude the use of § 102(c) waiver authority for the

16 construction projects.” Defs. Br. at 41; see also id. at p. 29, 31-32, 41-51. Under their

17 argument, the Court can neither look to the facts surrounding these statutory phrases to

18 determine whether the Secretary acted within the confines set by Congress in the

19 statutory, nor apply them as constraints on Congress’s delegation of authority.

20

The Government should not be permitted to have its cake and eat it too. The Court

21 must have jurisdiction over Defendants’ compliance with the restrictions Congress placed

22 on the Secretary in subsections 102(a) and (b), or Congress violated nondelegation

23 principles by granting the Secretary “unrestrained freedom of choice.” Freedom to Travel

24 Campaign v. Newcomb, 82 F.3d 1431, 1437 (9th Cir. 1996) (quoting Zemel v. Rusk, 381

25 U.S. 1, 17 (1965)). Thus, “[t]he responsibility of enforcing the limits of statutory grants

26 of authority is a judicial function; ... [w]ithout judicial review, statutory limits would be

27 naught but empty words.” Bowen, 476 U.S. 667 at 672 n.3 (1986) (citation omitted)).

28

COAL. PLS.’ RESP. & REPLY MEM.

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1 II. PLAINTIFFS’ CONSTITUTIONAL CLAIMS SUCCEED

2

A. Section 102 delegates “forbidden legislative authority” in violation of

3

Article I, section 1 of the U.S. Constitution.

4

The Government’s Response acknowledged that if section 102(c) failed to

5 “clearly delineate[] [a] general policy, the public agency which is to apply it, and the

6 boundaries of th[e] delegated authority,” then the delegation is unconstitutional under

7 Article I, section 1 of the U.S. Constitution. Defs. Br. at 52-54; Coal. Pls. Br. at 21; Ctr.

8 Br. at 35 citing Mistretta v. United States, 488 U.S. 361, 372–73 (1989) (quoting Am.

9 Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946)). Hoping to gloss over the

10 particulars, the Response presented a superficial and circular construction of section

11 102(c) that eliminates any distinction between the “general policy” and the “boundaries”

12 within which the DHS Secretary must operate, defining the “general policy” as

13 “improving border protection by expediting the construction of necessary borders and

14 roads,” and the “boundaries” as waiving legal requirements “necessary to ensure

15 expeditious construction” of walls in the “vicinity” of the border. Defs. Br. at 53- 54.

16 Such circularity evidences an impermissible delegation of legislative authority because

17 the purported boundaries simply reiterate the expansive goal, to build fences quickly, and

18 provide no direction to the DHS Secretary on how to specifically implement that goal.

19

Each of Mistretta’s three requirements serve a distinct purpose. The general policy

20 “guide[s] the [designated agency] in applying the discretion delegated by the Act,”

21 United States v. Cooper, 750 F.3d 263, 271-72 (3d Cir. 2014), and the “boundaries” are

22 legislative determinations that supply an agency with the “specific tool” to use in

23 carrying out Congress’s aim. Mistretta, 488 U.S. at 374; Cooper, 750 F.3d at 271–72; see

24 United States v. Richardson, 754 F.3d 1143, 1145 (9th Cir. 2014) (adopting the reasoning

25 in Cooper). This framework safeguards against Congress delegating its authority to an

26 agency to decide “what [the law] shall be,” by providing clear instructions as to both the

27 ends and the means. Mistretta, 488 U.S. at 418 (quoting Field v. Clark, 143 U.S. 649

28 (1892)). Indeed, “[t]he very choice of which portion of the power to exercise—that is to

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1 say, the prescription of the standard that Congress had omitted—would itself be an

2 exercise of the forbidden legislative authority.” Whitman v. Am. Trucking Assns., 531

3 U.S. 457, 473 (2001).

4

Pointing to two words, “necessary” and “vicinity,” the Government’s Response

5 argued that section 102 is “strikingly similar” to Clean Air Act section 109(b)(1), which

6 the Supreme Court upheld as a constitutional delegation in Whitman. 531 U.S. at 476;

7 Defs. Br. 54–55. Frankly, there is no comparison between the Clean Air Act’s exhaustive

8 complexity and interrelated parts and section 102. The Court’s careful analysis in

9 Whitman recognized the broader statutory scheme restricting agency discretion: “Since

10 the first step in assessing whether a statute delegates legislative power is to determine

11 what authority the statute confers, we address that issue of interpretation first,” in light of

12 the plain meaning of the text, statutory framework, and legislative history. Id. at 465–72.

13 Clean Air Act section 109(b)(1) directed the Environmental Protection Agency (EPA)

14 Administrator to set primary ambient air quality standards “based on” the criteria under 15 section 108(a)(2),8 which described “in detail how the health effects of pollutants in

16 ambient air are to be calculated and given effect.” Whitman, 531 U.S. at 465, 469.

17 Importantly, Congress required EPA to incorporate the “latest scientific knowledge” and

18 an evaluation of how air pollutants interact. 42 U.S.C. § 7408(a)(2). The Clean Air Act’s

19 numerous provisions and its plain language further constrained agency discretion,

20 rendering “implausible,” for example, an inference that the Administrator may consider

21 costs. Whitman, 531 U.S. at 466-72. In this context, the Court concluded that section

22 109(b)(1), and its “requisite to protect the public health” standard, provided a sufficient

23 “intelligible principle” for guiding the Administrator. Id. at 475-76.

24

25 8 Section 109(b)(1) directed EPA to set primary ambient air quality standards “the 26 attainment and maintenance of which in the judgment of the Administrator, based on
27 such criteria and allowing an adequate margin of safety, are requisite to protect the public health.” 42 U.S.C. § 7409(b)(1) (emphasis added).
28

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1

Section 102(c) lacks any such comparative guidance or limits on the Secretary’s

2 discretion. Examining the REAL ID Act as a whole, or section 102 in isolation, the

3 legislation still does not provide any criteria to guide her in determining which laws

4 might be “necessary” to waive or what it means to be in the “vicinity” of the border.

5 Instead, the provisions of section 102 simply repeat the broad directive to build

6 “effective” walls quickly. The Response could not delineate where the Secretary’s

7 discretion might end, and appear to concede the fact that the DHS Secretary could build

8 walls and prototypes along the U.S.-Canada border, waiving even local public health and

9 safety mandates. Coal. Pls. Br. at 15–16; Ctr. Br. at 21-22. While Congress need not

10 “provide a ‘determinate criterion’” strictly bounding agency discretion, “it must provide 11 substantial guidance.” Whitman, 531 U.S. at 475.9

12

To salvage section 102(c), the Government asks this court to skim over the

13 nondelegation doctrine, directing focus instead on cases that address matters

14 “traditionally designated to the Executive as part of his Commander-in-Chief power.”

15 Defs. Br. at 56. In so doing, the Government compares building fences along the southern

16 border to protecting the country after the September 11 terrorist attacks, In re Nat’l Sec.

17 Agency Telecomm. Records Litig., 671 F.3d 881, 897 (9th Cir. 2011), setting court

18 martial penalties, Loving v. United States, 517 U.S. 748 (1996), and excluding persons

19 from entry during a declared national emergency, World War II. U.S. ex rel. Knauff v.

20 Shaughnessy, 338 U.S. 537 (1950). These cases have no application here. Generally,

21 immigration—the target of the border wall—is a matter left to Congress. See Knauff, 338

22 U.S. at 543 (“Normally Congress supplies the conditions of the privilege of entry into the

23 United States”). And, merely because the border wall implicates foreign, as well as

24
25 9 The substance of the guidance must be in proportion with “the scope of the power congressionally conferred.” Whitman, at 475. Congress provided substantial guidance for
26 setting air standards given the rule’s effect on the national economy. Congress likewise
27 was required to provide similar specificity to DHS regarding the waivers given the entire southern border and its “vicinity could be affected.
28

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Case 3:17-cv-01215-GPC-WVG Document 38 Filed 01/05/18 PageID.1318 Page 25 of 27

1 domestic, affairs, “[t]he Executive is not free from the ordinary controls and checks of

2 Congress.” Zivotofsky v. Kerry, 135 S. Ct. 2076, 2079 (2015) (holding President has

3 exclusive power to recognize foreign states). “[I]t is still the Legislative Branch, not the

4 Executive Branch, that makes the law.” Id. at 2090. Thus, the Government cannot escape

5 a meaningful application of Mistretta, Touby, Whitman, and other precedent discussed

6 herein by claiming section 102 falls uniquely within the Commander-in-Chief power.

7

Nevertheless, even under the Response’s national security rubric, section 102(c)

8 could not be upheld. Defs. Br. at 56. In each instance, Congress still provided substantial

9 guidance to the Executive. For example, the delegation in Telecomm. Records arose in a

10 comprehensive statute and allowed the Attorney General to immunize

11 telecommunications companies from suits related to federal wiretapping only if

12 “assistance was provided in narrowly defined circumstances or … no assistance was

13 offered.” 671 F.3d at 900. The delegation in Loving allowed the President to set court

14 martial penalties no higher than those allowed by the Uniform Code of Military Justice.

15 517 U.S. at 769. And, the delegation in Knauff was effective only for the declared

16 national emergency (World War II) and required the President to find that the person

17 barred from entering the country threatened national security. 338 U.S. at 540-41, 544.

18 Section 102(c) offers no such guidance or boundaries.

19

B. The Government fails to cite any case supporting Congress’s power to

20

eliminate both concurrent state and federal jurisdiction.

21

The Government points to no case that would authorize Congress to both eliminate

22 concurrent state court jurisdiction without affirmatively vesting that judicial power in the

23 federal courts. Indeed, in Plaquemines Tropical Fruit Co. v. Henderson, 170 U.S. 511

24 (1898)—a case the Government asserts is fatal to the Coalition Plaintiffs’ theory—the

25 Government’s truncated quote fails to include the critical point: Congress may only

26 “revoke[] and extinguish[]” the concurrent jurisdiction of the state tribunes when “the

27 subject-matter can constitutionally be made cognizable in the federal courts, and that,

28 without an express provision to the contrary, the state courts will retain a concurrent

COAL. PLS.’ RESP. & REPLY MEM.

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1 jurisdiction in all cases where they had jurisdiction originally over the subject-matter.” Id.

2 at 517-18 (emphasis added). The Government’s reliance on Tafflin v. Levitt, 493 U.S. 455

3 (1990) is similarly misplaced, because the Court there likewise recognized the “deeply

4 rooted presumption in favor of concurrent state court jurisdiction” may only be overcome

5 when Congress expressly “give[s] to the Federal Courts exclusive jurisdiction” over the

6 claim. Id. at 458-59 (quotations omitted).

7

In other words, these cases make clear that it is only when Congress affirmatively

8 vests federal courts with exclusive jurisdiction that it has the power to remove concurrent

9 jurisdiction of the state courts. Here, however, that is not what section 102 does—it seeks

10 to eliminate both federal and state jurisdiction—which Congress lacks the power to do.

11 Thus, to the extent this Court holds that this Court lacks jurisdiction over such claims, it 12 would mean concurrent state court jurisdiction must then exist.10

13

CONCLUSION

14

In sum, for all the foregoing reasons, those in the Coalition Plaintiffs’ Opening

15 Brief, and those contained in the briefs filed by the State of California and Center for

16 Biological Diversity, Defendants’ conduct here is unauthorized, unconstitutional, and

17 void, and this Court is well within its judicial authority to declare precisely that and

18 invalidate the waivers at issue here by granting the Coalition Plaintiffs summary

19 judgment and denying Defendants’ cross-motion.

20 ///
21 /// ///
22 ///
23 /// ///
24

25 10 The Government asserts that the Coalition Plaintiffs failed to identify any liberty or 26 property interest that would support a Due Process claim. Defs. Br. at 69-70. Yet,
27 Coalition Plaintiffs clearly asserted both their rights to access the Courts and to enforce environmental and animal-protection laws were at issue.
28

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1 DATED: January 5, 2018 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
COAL. PLS.’ RESP. & REPLY MEM.

Respectfully submitted,
/s/Gloria D. Smith Gloria D. Smith (CA No. 200824) SIERRA CLUB 2101 Webster Street, Suite 1300 Oakland, CA 94612 Telephone: (415) 977-5532 gloria.smith@sierraclub.org
Attorney for Plaintiff Sierra Club
Brett M. Paben (FL No. 0416045) DEFENDERS OF WILDLIFE 535 16th Street Denver, CO 80202 Telephone: (720) 943-0457 bpaben@defenders.org Pro hac vice
Attorney for Plaintiff Defenders of Wildlife
Anthony T. Eliseuson (IL No. 6277472) ANIMAL LEGAL DEFENSE FUND 1755 W. Roscoe Street, Unit 3 Chicago, Illinois 60657 Telephone: (707) 795-2533 aeliseuson@aldf.org Pro hac vice
Sarah K. Hanneken (OR No. 165104) ANIMAL LEGAL DEFENSE FUND 919 SW Taylor Street, #400 Portland, OR 97205 Telephone: (707) 795-2533 shanneken@aldf.org Pro hac vice
Attorneys for Plaintiff Animal Legal Defense Fund

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 Case 3:17-cv-01215-GPC-WVG Document 39 Filed 01/05/18 PageID.1327 Page 1 of 29

1 XAVIER BECERRA Attorney General of California
2 ROBERT W. BYRNE Senior Assistant Attorney General
3 MICHAEL P. CAYABAN (SBN 179252) DAVID G. ALDERSON (SBN 231597)
4 Supervising Deputy Attorneys General JOHN APPELBAUM (SBN 149643).
5 NOAH GOLDEN-KRASNER (SBN 217556) JANELLE M. SMITH (SBN 231801)
6 AMIE MEDLEY (SBN 266586) BAINE P. KERR (SBN 265894)
7 JESSICA BARCLAY STROBEL (SBN 280361) JULIA FORGIE (SBN 304701)
8 Deputy Attorneys General 600 West Broadway, Suite 1800
9 San Diego, California 92101 Telephone: (619) 738-9313
10 Fax: (619) 645-2271 E-mail: Mike.Cayaban@doj.ca.gov
11 Attorneys for the People of the State of California, by and through Xavier Becerra,
12 Attorney General, and the California Coastal Commission
13

14

IN THE UNITED STATES DISTRICT COURT

15

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

16

17

18 IN RE: BORDER

17cv1215-GPC(WVG)

INFRASTRUCTURE

19 ENVIRONMENTAL LITIGATION, Consolidated with

Case No. 17cv1873 GPC (WVG)

20

Case No. 17cv1911 GPC (WVG

21

CALIFORNIA’S REPLY IN

SUPPORT OF CALIFORNIA’S

22

MOTION FOR SUMMARY

JUDGMENT AND OPPOSITION TO

23

DEFENDANTS’ CROSS-MOTION

FOR SUMMARY JUDGMENT

24

Date:

February 9, 2018

25

Time:

1:30 p.m.

Dept:

2D

26

Judge:

The Hon. Gonzalo

P. Curiel

27

Trial Date: None set

28

California’s Reply in Support of California’s Mot. for Summ. J. and Opp’n to Defs.’ Cross Motion for Summ. J. (17cv1215-GPC(WVG))

Case 3:17-cv-01215-GPC-WVG Document 39 Filed 01/05/18 PageID.1328 Page 2 of 29

1

TABLE OF CONTENTS

2 Page
3 Argument in Reply and Opposition........................................................................... 1

4

I. California Has Standing to Assert Each of Its Claims.......................... 1

II. Defendants’ Admissions and Failure to Offer a Complete

5

Defense Entitles California to Summary Judgment on Its First

and Second Claims for Relief ............................................................... 3

6

III. California’s Third, Fourth and Fifth Claims ......................................... 4

7

A. This Court has Jurisdiction to Hear California’s Non-

Constitutional Claims ................................................................. 4

8

B. Section 102 Does Not Authorize the Projects Described in

9

the 2017 Waivers (Third Claim)................................................. 6

1. The San Diego and Calexico Projects are Not

10

Located in “Areas of High Illegal Entry” ........................ 6

11

2. Section 102 Does Not Authorize Replacement Fencing ............................................................................. 9

12

C. The 2017 Waivers are Invalid Because the Secretary’s

Waiver Authority Expired on December 31, 2008 (Fourth

13

Claim) ....................................................................................... 10

14

D. The Secretary’s Failure to Make Sufficient Findings Renders the 2017 Waivers Invalid. .......................................... 11

15

IV. Section 102 and the 2017 Waivers Interfere with California’s

Equal Sovereignty and Police Powers in Violation of the Tenth

16

Amendment (Eleventh Claim) ............................................................ 12

17

V. Section 102(c)’S Hurdles and the Vague 2017 Waivers Deprive California of Fair Notice and Access to the Courts (Sixth Claim) ..... 16

18

VI. Section 102(Cc and the 2017 Waivers Violate Article I, Section

3, of the United States Constitution (Ninth Claim) ............................ 18

19

VII. The 2017 Waivers Violate the Separation of Powers Doctrine

20

the Non-Delegation Doctrine, and the Presentment Clause (Seventh, Eighth and Tenth Claims) ................................................... 19

21 Conclusion ............................................................................................................... 20

22

23

24

25

26

27

28
i
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Case 3:17-cv-01215-GPC-WVG Document 39 Filed 01/05/18 PageID.1329 Page 3 of 29

1

TABLE OF AUTHORITIES

2 3 CASES

Page

4 Albino v. Baca

5

747 F.3d 1162 (9th Cir. 2014) ............................................................................... 4

6 Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel. Barez

7

458 U.S. 592 (1982) .............................................................................................. 2

8 Bd. of Regents of State Colleges v. Roth

9

408 U.S. 564 (1972) ............................................................................................ 17

10 City of Boerne v. Flores 521 U.S. 507 (1997) ...................................................................................... 15, 16
11

12

Diamond v. Charles 476 U.S. 54 (1986) ................................................................................................ 2

13

Dickson v. Sec’y of Def.

14

68 F.3d 1396 (D.C. Cir. 1995) ............................................................................ 12

15 EEOC v. Elrod

16

674 F.2d 601 (7th Cir. 1982) ............................................................................... 16

17 Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist.

18

498 F.3d 1031 (9th Cir. 2007) ............................................................................. 13

19 Fahey v. Mallonee

20

332 U.S. 245 (1947) ...................................................................................... 18, 19

21 FDA v. Brown & Williamson Tobacco Corp. 529 U.S. 120 (2000) .............................................................................................. 6
22

23

Field v. Clark 143 U.S. 649 (1892) ............................................................................................ 19

24

Flores-Miramontes v. INS

25

212 F.3d 1133 (9th Cir. 2000) ............................................................................... 4

26 Galvan v. Press

27

347 U.S. 522 (1954) ............................................................................................ 15

28
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1

TABLE OF AUTHORITIES

2 3 Ex Parte Grossman

(continued)

Page

4

267 U.S. 87 (1925) .............................................................................................. 18

5 Harper/Nielsen-Dillingham, Builders, Inc. v. United States

6

81 Fed. Cl. 667, 679 (2008)................................................................................. 17

7 Hawaii v. Trump No. 17-17168, 2017 WL 6554184 (9th Cir. Dec. 22, 2017) ........................ passim
8

9

Heath v. Alabama 474 U.S. 82 (1985) .............................................................................................. 14

10

Hirschkop v. Snead

11

594 F.2d 356 (4th Cir. 1979) ............................................................................... 16

12 Iasu v. Smith

13

511 F.3d 881 (9th Cir. 2007) ................................................................................. 4

14 J.W. Hampton, Jr. & Co. v. United States

15

276 U.S. 394 (1928) ............................................................................................ 19

16 Kerr v. Jewell

17

836 F.3d 1048 (9th Cir. 2016) ............................................................................... 5

18 Lamie v. U.S. Tr. 540 U.S. 526 (2004) ............................................................................................ 11
19

20

Laro v. New Hampshire 259 F.3d 1 (1st Cir. 2001) ................................................................................... 16

21

Leedom v. Kyne

22

358 U.S. 184 (1958) .............................................................................................. 5

23 Levin v. Commerce Energy, Inc.

24

560 U.S. 413 (2010) ...................................................................................... 17, 18

25 Maine v. Taylor

26

477 U.S. 131 (1986) .............................................................................................. 2

27 Marbury v. Madison

28

5 U.S. 137 (1803) ................................................................................................ 19

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1

TABLE OF AUTHORITIES

2 3 Massachusetts v. EPA

(continued)

Page

4

549 U.S. 497 (2007) .............................................................................................. 1

5 Mistretta v. United States

6

488 U.S. 361 (1989) ............................................................................................ 18

7 Moller-Butcher v. U.S. Dep’t of Commerce, Bureau of Exp. Admin. 12 F.3d 249 (D.C. Cir. 1994)................................................................................. 6
8

9

New York v. United States 505 U.S. 144 (1992) ...................................................................................... 13, 14

10

Nunag-Tanedo v. E. Baton Rouge Par. Sch. Bd.

11

711 F.3d 1136 (9th Cir. 2013) ............................................................................. 17

12 O’Brien v. Welty

13

818 F.3d 920 (9th Cir. 2016) ............................................................................... 17

14 Outdoor Media Grp., Inc. v. City of Beaumont

15

506 F.3d 895 (9th Cir. 2007) ............................................................................... 17

16 Printz v. United States

17

521 U.S. 898 (1997) ...................................................................................... 13, 15

18 Robertson v. Methow Valley Citizen Council 490 U.S. 332 (1989) .............................................................................................. 3
19

20

Roller v. Gunn 107 F.3d 227 (4th Cir. 1997) ............................................................................... 17

21

Sec’y of the Interior v. California

22

464 U.S. 312 (1984) .............................................................................................. 2

23 Setser v. United States

24

566 U.S. 231 (2012) .............................................................................................. 6

25 Shelby Cty., Ala. v. Holder

26

133 S. Ct. 2612 (2013) .................................................................................passim

27 Sierra Forest Legacy v. Sherman

28

646 F.3d 1161 (9th Cir. 2011) ............................................................................... 1

iv

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1

TABLE OF AUTHORITIES

2 3 Stone v. INS

(continued)

Page

4

514 U.S. 386 (1995) ............................................................................................ 10

5 United States v. L. Cohen Grocery

6

255 U.S. 81 (1921) .............................................................................................. 18

7 United States v. Lee 106 U.S. 196 (1882) ............................................................................................ 19
8

9

United States v. Morrison 529 U.S. 598 (2000) ............................................................................................ 15

10

United States v. Nixon

11

418 U.S. 683 (1974) ...................................................................................... 18, 19

12 Washington v. Trump

13

847 F.3d 1151 (9th Cir. 2017) ............................................................................. 16

14 Whitman v. Am. Trucking Ass’ns, Inc.

15

531 U.S. 457 (2001) ........................................................................................ 5, 18

16 Wilbur v. Locke

17

423 F.3d 1101 (9th Cir. 2005) ............................................................................. 17

18 Wilbur v. Locke 423 F.3d 1101 (9th Cir. 2005) ............................................................................. 17
19 20 STATUTES

21 5 U.S.C. § 551, et seq. ................................................................................................ 1

22 8 United States Code

23

§ 1103(a)(5) ........................................................................................................... 7 § 1103(c) n............................................................................................................. 4

24

§ 1103 n. .............................................................................................................. 12

25

26

27

28
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1

TABLE OF AUTHORITIES

2 3 16 United States Code

(continued)

Page

4

§ 668 .................................................................................................................... 19

§ 707 .................................................................................................................... 19

5

§ 1451, et seq. ........................................................................................................ 1

6

§ 1456(c)(2) ........................................................................................................... 3

§ 1540(b)(1) ......................................................................................................... 19

7

8

25 United States Code § 3001 et seq. ....................................................................................................... 16

9

33 United States Code

10

§ 401 .................................................................................................................... 19

11

§ 1321(b)(5) ......................................................................................................... 19

12 42 United States Code

13

§ 300 .................................................................................................................... 19 § 2000bb .............................................................................................................. 16

14

§ 4321, et seq. ...............................................................................................passim

15

§ 4332(2)(C) .......................................................................................................... 3 § 7413(1).............................................................................................................. 19

16

54 United States Code

17

§ 320106 .............................................................................................................. 16

18 Administrative Procedure Act (APA), 5 U.S.C. § 551 et sec. .................................. 1

19

Cal. Hazardous Waste Control Law, Cal. Health and Safety Code §

20

25100 et seq. .......................................................................................................... 3

21 Cal. Integrated Waste Mgmt. Act of 1989, Cal. Pub. Res. Code § 4000

22

et seq., .................................................................................................................... 3

23 California Civil Code

24

§ 3840 .................................................................................................................... 3

25 California Government Code

26

§ 12600 et seq. ....................................................................................................... 3

27 California Water Code § 13000 et. seq. ...................................................................................................... 3
28
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1

TABLE OF AUTHORITIES

2

(continued)

Page

3 Coastal Management Act (CZMA), 16 U.S.C. § 1451 et seq .................................... 1

4 Illegal Immigration and Immigrant Responsibility Act § 102, as

5

amended ........................................................................................................ passim

6 National Environmental Policy Act, 42 United States Code § 4321, et

7

seq. ................................................................................................................passim

8 Secure Fence Act of 2006

9

Pub. L. 109-367, § 3, Stat. 2638 (Oct. 26, 2006) ................................................ 11

10 CONSTITUTIONAL PROVISIONS

11 United States Constitution

12

First Amendment (Petition Clause) ..................................................................... 17 Fifth Amendment (Due Process Clause) ............................................................. 17

13

Tenth Amendment ......................................................................................... 12, 13

14

Article I................................................................................................................ 13 Article I, § 1 (Non-Delegation Doctrine) ............................................................ 20

15

Article I, § 1 (Separation of Powers Doctrine).................................................... 19

16

Article I § 2.......................................................................................................... 18 Article I, § 3......................................................................................................... 18

17

Article I, § 7 (Presentment Clause) ............................................................... 19, 20

18

Article III ............................................................................................................... 2

19 OTHER AUTHORITIES

20 14 Cal. Code Regs. § 17380 et seq. ............................................................................ 3

21 15 Code of Federal Regulations § 930.36 .................................................................. 3
22 40 Code of Federal Regulations § 1501.2 .................................................................. 3 23
82 Fed. Reg. 35,984 (Aug. 2, 2017) ......................................................................... 16 24 25 82 Fed. Reg. 42,829 (Sept. 12, 2017) ....................................................................... 16
26 https://www.revealnews.org/blog/senate-democrats-answer-questionsraise-concerns-with-trumps-wall/........................................................................ 12
27

28
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1

Plaintiffs, the People of the State of California and the California Coastal

2 Commission (referred to collectively as “California”) submit the following

3 argument in reply to Defendants’ opposition to California’s motion for summary

4 judgment and in opposition to Defendants’ cross-motion for summary judgment.

5

ARGUMENT IN REPLY AND OPPOSITION

6 I. CALIFORNIA HAS STANDING TO ASSERT EACH OF ITS CLAIMS

7

In their opposition, Defendants vaguely assert that California fails to tie its

8 standing theories to claims asserted in its complaint and insinuate, incorrectly, that

9 California’s standing rests solely on parens patriae theories. Defs.’ Opp’n Summ. J.

10 (hereinafter Opp’n), Doc. 35-11 at 9–10. Defendants ignore the clear standing

11 California has in defending its procedural rights under National Environmental

12 Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and the Administrative Procedure

13 Act (APA), 5 U.S.C. § 551 et seq. Plaintiff California Coastal Commission’s

14 unique regulatory role under the Coastal Management Act (CZMA), 16 U.S.C. §

15 1451 et seq., and the undisputed evidence of California’s concrete interests in the

16 resources that those procedural rights are intended to protect. In addition,

17 Defendants’ sole defense to NEPA, APA, and CZMA violations rests on the

18 validity of waivers that preclude California from enforcing its own laws.

19

In Massachusetts v. EPA, the Court concluded Massachusetts had standing to

20 sue the EPA because the state had both procedural rights and concrete, quasi-

21 sovereign interests in protecting its natural resources. 549 U.S. 497, 519–24 (2007).

22 Similarly, in Sierra Forest Legacy v. Sherman, the Ninth Circuit held that

23 California had standing to assert NEPA challenges because it has ownership and

24 trusteeship over “wildlife, water, State-owned land, and public trust lands.” 646

25 F.3d 1161, 1178 (9th Cir. 2011). And, the Supreme Court has held that Plaintiff

26 California Coastal Commission, which is designated as the “state agency”

27 responsible for implementing the CZMA over California’s ocean coastline, “clearly

28

1 All references to “Doc.” are to the1ECF document number.

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1 does have standing” to sue the federal government for violations of the CZMA.

2 Sec’y of the Interior v. California, 464 U.S. 312, 319 n.3 (1984) superseded in part

3 by statute as stated in California v. Norton, 311 F.3d 1162, 1173 (9th Cir. 2002).

4

Here, California has standing to assert its first and second claims for relief and

5 to attack all affirmative defenses to those claims because it is being denied

6 procedural protections guaranteed by NEPA, the CZMA, and the APA, and

7 California presented unrebutted evidence of its “concrete” interests at stake due to

8 Defendants’ failure to comply with those statutes. See Cal. Br. at 14–16; Doc. 30-5,

9 Ex. 23; Docs. 30-7, 30-8, 30-9, 32. California provided evidence of possible harm

10 to the Tijuana Estuary and to numerous rare, threatened or endangered species

11 absent adequate environmental review. Id. California also demonstrated potential

12 harm to the coastal environment. Id. In addition, California presented unrefuted

13 evidence that it owns property adjacent to the proposed Border Wall Project and

14 will be financially responsible for managing any effects the Border Wall Project has

15 on that real property. Id.

16

California further has standing because states have legally protected sovereign

17 interests in creating and enforcing their own laws, and Article III standing exists

18 when federal action interferes with those sovereign interests. Maine v. Taylor, 477

19 U.S. 131, 137 (1986) (state had standing because “a state clearly has a legitimate

20 interest in the continued enforceability of its own statutes”).2 Here, Secretaries

21 Kelly and Duke executed waivers that purport to waive and prevent the

22 enforcement of California’s laws and regulations–interfering directly with

23

24

2 See also Diamond v. Charles, 476 U.S. 54, 65 (1986) (“Because the State 25 alone is entitled to create a legal code, . . . the State has the kind of ‘direct stake’ . . .

26

in defending the standards embodied in that code.”); Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel. Barez, 458 U.S. 592, 601 (1982) (a state’s “easily identified

sovereign interests” include “the exercise of sovereign power over individuals and 27 entities within the relevant jurisdiction—this involves the power to create and

enforce a legal code, both civil and criminal”). 28

2

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1 California’s sovereign interests. Doc. 30-5, Exs. 11–12.3 Therefore, California has

2 standing as to all its claims.

3 II. DEFENDANTS’ ADMISSIONS AND FAILURE TO OFFER A COMPLETE

DEFENSE ENTITLES CALIFORNIA TO SUMMARY JUDGMENT ON ITS

4

FIRST AND SECOND CLAIMS FOR RELIEF

5

California is entitled to at least partial summary judgment on its NEPA and

6 CZMA claims because the San Diego and Calexico Waivers do not provide a

7 defense to the larger Border Wall Project, which contemplates construction of walls

8 and other infrastructure at various points along the entire 2000-mile southern

9 border. Cal. Compl., ¶¶ 1–2, 8, 68, 71–72, 104–10; Cal. Br., Doc. 30-2, at 1, 14–16,

10 40; Doc. 30-6, Exs. 7, 9; Doc. 30-6, Ex.11; Doc. 35-3 at 2, Fact #2. Defendants also

11 concede the San Diego Waiver does not provide a defense to California’s NEPA

12 and CZMA claims concerning Defendants’ publicized plans to replace a secondary

13 fence in San Diego. Opp’n at 6-7; Doc. 30-5, Ex. 9 at 099; Doc. 35-3 at 34, Fact #2.

14 Both NEPA (in the form of an environmental impact statement) and the CZMA (in

15 the form of a consistency determination) mandate public review of a project’s

16 potential impacts at the earliest possible stage of the planning process. Robertson v.

17 Methow Valley Citizen Council, 490 U.S. 332, 348–49 (1989); 42 U.S.C.

18 § 4332(2)(C); 16 U.S.C. § 1456(c)(2); 15 C.F.R. § 930.36; 40 C.F.R. § 1501.2.

19 Because the undisputed record proves Defendants have engaged in the planning of

20 infrastructure projects that fall outside the scope of any waiver and failed to comply

21 with either act, California is entitled to partial summary judgment on its first and

22 second claims as a matter of law.

23

24

3 While the scope of the waivers’ impact on California’s sovereignty is 25 obscured by the Secretaries’ failure to identify each California law or regulation

26

covered, the waivers jeopardize California’s enforcement of laws that would subject DHS or its contractors to the state’s permitting authority or to other legal actions.

See, e.g., Cal. Water Code § 13000 et. seq.; Cal. Integrated Waste Mgmt. Act of 27 1989, Cal. Pub. Res. Code § 4000 et seq., 14 Cal. Code Regs. § 17380 et seq.; Cal.

Hazardous Waste Control Law, Cal. Health and Safety Code § 25100 et seq.; Cal. 28 Gov. Code § 12600 et seq.; Cal. Civ. Cod3e § 3840.

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1

California also satisfied its burden of demonstrating that Defendants violated

2 NEPA and the CZMA concerning the prototype and primary fence replacement

3 projects described in the San Diego and Calexico Waivers. Thus, California is

4 entitled to summary judgment on its NEPA and CZMA claims unless Defendants

5 meet their “burden of proving their affirmative defense.” Albino v. Baca, 747 F.3d

6 1162, 1176 (9th Cir. 2014). The only defense Defendants offer is an affirmative

7 one: that Defendants are excused from NEPA and CZMA compliance because

8 former Secretaries Kelly and Duke executed waivers under Section 102 of the

9 Illegal Immigration and Immigrant Responsibility Act (referred to herein as

10 “IIRIRA” or “Section 102”). Thus, Defendants must prove that Section 102

11 authorizes the projects DHS seeks to build and that the San Diego and Calexico

12 Waivers are valid. Because Defendants have not met their burden, summary

13 judgment should be granted to Plaintiffs on their first and second claims.

14 III. CALIFORNIA’S THIRD, FOURTH AND FIFTH CLAIMS

15

A. This Court has Jurisdiction to Hear California’s Non-

Constitutional Claims

16

17

Defendants attempt to extend the limitation on district courts’ jurisdiction in

18 Section 102(c)(2)(A) to all non-constitutional claims. However, their effort fails for

19 three reasons. First, Section 102(c)(2)(A) applies only to claims arising from the

20 Secretary’s actions “pursuant to paragraph (1),” which is the waiver provision in

21 Section 102(c)(1). 8 U.S.C. § 1103(c) note. Therefore, Section 102(c)(2)(A)’s

22 limitation on judicial review does not apply to this Court’s jurisdiction over

23 California’s claims concerning Sections 102(a) and (b).

24

Second, Defendants provide no response to California’s argument that courts

25 retain jurisdiction to address threshold issues governing the application of a statute

26 to the circumstance at issue—even where a statute purports to limit their

27 jurisdiction. Iasu v. Smith, 511 F.3d 881, 891 (9th Cir. 2007); Flores-Miramontes v.

28 INS, 212 F.3d 1133, 1135 (9th Cir. 2000). Therefore, this Court has jurisdiction
4
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1 over California’s relevant threshold questions, including whether Sections 102(a)

2 and (b) authorize the San Diego and Calexico Projects.

3

Finally, despite Defendants’ arguments to the contrary (Opp’n at 13–14), this

4 Court has jurisdiction to determine whether DHS exceeded its statutory authority

5 by issuing the challenged waivers. Leedom v. Kyne, 358 U.S. 184, 188–90 (1958).

6 California meets both prongs of the Kyne exception because Section 102 does not

7 authorize the Secretary’s actions, and the absence of district court jurisdiction will

8 deprive Plaintiffs of a means of vindicating their rights.4 The Ninth Circuit recently

9 reaffirmed its jurisdiction to conduct ultra vires review of the Executive’s actions

10 because “[i]t is the duty of the courts . . . to say where [the] statutory and

11 constitutional boundaries [of authority conferred by Congress] lie.” Hawaii v.

12 Trump, No. 17-17168, 2017 WL 6554184, at *6 (9th Cir. Dec. 22, 2017) (finding

13 ultra vires review available to address claims the Executive exceeded statutory

14 authority). The court held that courts “necessarily” retain jurisdiction to review

15 whether executive actions are “ultra vires” and within “the limits of the President’s

16 power.” Id. at *7.

17

Without authority, Defendants attempt to distinguish Section 102 from the

18 overwhelming Supreme Court and Ninth Circuit caselaw allowing for ultra vires

19 review, claiming that those cases “cannot overturn plainly expressed congressional

20 intent to prohibit all review other than constitutional claims.” Opp’n at 17. But this

21 argument ignores that such review is required so an agency does “not construe the

22 statute in a way that completely nullifies textually applicable provisions meant to

23 limit its discretion.” Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 485

24

4 Defendants now argue that Plaintiffs have not satisfied the second prong of

the Kyne exception—that, without jurisdiction, Plaintiffs would be wholly deprived

25 of adequate means of vindicating their statutory rights. However, without ultra

vires review, Plaintiffs would be unable to prevent the Secretary from taking

26 unchecked actions that exceed statutory authority. As Defendants previously

conceded, “[t]hat prong is not in dispute here because Congress barred judicial 27 review of all non-constitutional claims.” Defs. Mot. to Dismiss, Doc. 18-1 at 16

n.10.

28

5

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1 (2001). Under Defendants’ argument, DHS could simply ignore Section 102’s

2 provisions limiting its authority. None of the cases Defendants cite preclude courts

3 from determining if an agency has acted within the limits of its discretion.5

4

For the three reasons stated above, this Court has jurisdiction to consider

5 whether the Secretary exceeded his or her statutory authority by issuing waivers for

6 projects not authorized by Section 102.

7

B. Section 102 Does Not Authorize the Projects Described in the 2017 Waivers (Third Claim)

8

1. The San Diego and Calexico Projects are Not Located in

9

“Areas of High Illegal Entry”

10

Section 102 authorizes DHS to “install additional physical barriers . . . to deter

11 illegal crossings in areas of high illegal entry” (emphasis added). While Congress

12 did not set a numeric threshold to define “areas of high illegal entry,” the rules of

13 statutory construction require a reading that gives these words—including the word

14 “high”—meaning. Setser v. United States, 566 U.S. 231, 239 (2012) (courts “must

15 give effect” to “every clause and word” of a statute).

16

Supreme Court and Ninth Circuit precedent also direct lower courts to

17 consider several factors such as the statutory framework, legislative history, and

18 prior executive practice to construe statutory text. FDA v. Brown & Williamson

19 Tobacco Corp., 529 U.S. 120, 132–33 (2000); Hawaii, 2017 WL 6554184 at *10.

20 Significant here, courts must also construe statutes to avoid serious constitutional

21 problems. Hawaii, 2017 WL 6554184 at *15–16.

22

The uncontroverted record demonstrates “the southwest land border is more

23 difficult to illegally cross today than ever before” (Doc. 30-5, Ex. 8 at 080) and that

24 this is particularly true in the California sectors where DHS now seeks to waive

25 5 Defendants rely on cases that are distinguishable from the case at bar, for
26 instance: Kerr v. Jewell, 836 F.3d 1048, 1058 (9th Cir. 2016) (upholding dismissal because statute required claim to first be heard by an “administrative body”); and,
27 Moller-Butcher v. U.S. Dep’t of Commerce, Bureau of Exp. Admin., 12 F.3d 249, 252 (D.C. Cir. 1994) (Court elected not to review issue concerning whether
28 Secretary acted ultra vires because she wa6s “well within her authority.”)
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1 laws in order to expedite the replacement of existing fences. Defendants seek to

2 side-step this overwhelming evidence by asking the Court to adopt an interpretation

3 of the phrase “areas of high illegal entry” that would render those words

4 meaningless. Defendants contend the limiting phrase “areas of high illegal entry”

5 should be interpreted by turning to the larger Act’s overall purpose “to achieve and

6 maintain operational control over the international border.” Opp’n at 44. Further,

7 Defendants contend that “operational control” means “the prevention of all

8 unlawful entries into the United States . . .” Opp’n at 2.

9

However, the phrase “areas of high illegal entry” must be given effect.

10 Defendants’ strained interpretation violates this principle because it would

11 authorize the expedited installation of barriers (by waiving federal and state laws)

12 anywhere along the southern border as long as the barrier promoted “operational

13 control,” regardless of whether the barrier was in an area of high illegal entry.

14 Defendants’ interpretation strips the limiting phrase “areas of high illegal entry” of

15 any meaning and, for that reason, must be rejected.6

16

Further, when read in the context of a statutory framework that has long

17 allowed the Executive Branch to construct barriers in select areas of the southern

18 border (see 8 U.S.C. § 1103(a)(5); Def. Opp. at 31, n.22),7 the phrase “areas of high

19 illegal entry” must be read as a geographic limitation on DHS’s ability to install

20

6 The absurdity of Defendants’ argument that the Secretary is entitled to 21 unfettered deference to define “high illegal entry” and “most practical and

effective” is made clear by simply contrasting the photos of the Border Wall 22 prototypes built pursuant to the 2017 Waivers, which contain huge gaps in between

them, with Defendants’ arguments the prototypes are intended to deter illegal 23 crossings. Compare Opp’n at 6, 48–49 with images of prototypes (Cal. Br. at 16

n.11).

24

7 The installation of the primary fence in San Diego, which preceded the

enactment of Section 102 of IIRIRA, serves as a prime example of that general 25 authority. California does not dispute that the Executive Branch has authority,

26

subject to direction and limitations imposed by Congress, to construct new barriers and to repair, maintain or replace existing barriers where appropriate. The dispute

lies with Defendants’ assumption that Section 102 is the statute that authorizes 27 them to do so and that Section 102 authorizes them to expedite barrier projects

across the entire southern border, without limitation. 28

7

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1 new barriers through Section 102’s expedited procedures.8 Given this statutory

2 framework and legislative history, Congress’s inclusion of the phrase “areas of high

3 illegal entry” indicates an intent to limit the provision’s use to areas where there is

4 an exceptional need for additional barriers based on the number of illegal entries.9

5

Section 102 must also be read in a manner that avoids serious constitutional

6 problems. See Hawaii, 2017 WL 6554184 at *15–16. The Court therefore should

7 reject Defendants’ interpretation of “areas of high illegal entry” because it confirms

8 that Section 102 does not provide an intelligible principle concerning the

9 Secretary’s use of the waiver provision, is unconstitutionally vague, and does not

10 survive the heightened scrutiny required for waiving criminal laws. In particular,

11 Defendants adopt a reading of Section 102 that exposes their mistaken belief that

12 the Secretary may infringe on state sovereignty in a disparate and unequal fashion

13 regarding actual levels of illegal entry. The Court should avoid this unconstitutional

14 invitation.

15

Finally, despite the relatively low number of illegal entries in comparison to

16 sectors in other states, Defendants contend that the 31,000 apprehensions in the San

17 Diego sector and the 19,000 in the El Centro sector in 2016 do not meet “Congress’

18 definition of ‘operational control’” (which equates to zero illegal entries), and that

19

8 When Congress enacted Section 102 in 1996, it was initially concerned

with the extremely high rate of illegal entries in San Diego, which at the time

20 accounted for nearly one-third of the apprehensions along the southern border.

Congress never indicated that fencing should be constructed across the entire

21 southern border or in areas that are not areas of high illegal entry.

9 As noted in California’s moving papers, the sector-wide apprehension data 22 and sector-wide drug seizure data cited in the 2017 Waivers are irrelevant in

determining whether the Calexico and San Diego projects are “in areas of illegal

23 entry.” In Defendants’ opposition, these arguments are largely ignored. Defendants

contend simply that members of Congress have cited to DHS sector-wide data and

24 that California cited data from an outdated report. The most current data publicly

available, however, demonstrates Defendants are seeking to expedite a fence 25 replacement in an area already heavily fortified and where apprehensions are the

lowest within the sector. Despite having access to more current data concerning

26 apprehensions in the specific locations of the Projects, and despite having the

burden of proving their affirmative defense to California’s NEPA and CZMA

27 claims, Defendants offer nothing. Further, since most drug seizures occur at the

ports of entry or vehicle checkpoints (Doc. 30-6, Ex. 19), Defendants’ reliance on

28 sector-wide drug seizure data to justify th8e need for a border wall is disingenuous.

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1 the number of entries would “certainly exceed whatever lower threshold could be

2 set for ‘high illegal entry’.” Opp’n at 46. But the legislative history reveals that

3 Congress did not consider areas with these apprehension levels to be “areas of high

4 illegal entry” when it enacted Section 102. For example, in 1996 all but three of the

5 southern sectors recorded more than 100,000 apprehensions, but Congress only

6 targeted the San Diego Sector for a 14-mile triple-fence project. Doc. 29-3, Ex. 1 at

7 1. In 2006, the year preceding Section 102’s last amendment, sectors with much

8 higher apprehension levels (Del Rio – 42,636 and Laredo - 74,840) compared to

9 San Diego’s current apprehensions were not identified as problem areas by

10 Congress or the subsequent target of waivers by DHS. Doc. 29-3, Ex. 1 at 1; Doc.

11 30-4, Ex. 1 at 018-019; Doc. 30-6, Ex. 10 at 117-8. Thus, the legislative history and

12 prior executive practice in applying Section 102 demonstrate that the San Diego

13 and El Centro Sectors are no longer areas of high illegal entry within the meaning

14 of the statute.

15

2. Section 102 Does Not Authorize Replacement Fencing

16

Section 102 authorizes the “installation of additional physical barriers.” This

17 Court should apply a plain and ordinary meaning to that text and reject Defendants’

18 tortured interpretation of the word “additional.”

19

Section 102 authorizes the Executive Branch to install expedited, additional

20 barriers under exceptional circumstances; Section 102 does not address on-going

21 maintenance or replacement of existing barriers. This interpretation is supported by

22 the express language of Section 102 (a) and (b), which instructs DHS in “carrying

23 out” the general requirements of subsection (a). The 2007 Amendments to Section

24 102 focus solely on adding mileage to the existing inventory of fencing and

25 meeting mileage goals. Defendants’ interpretation of the term “additional” is

26 therefore inconsistent with subsection (b) because the replacement of existing

27 fences does not aid DHS in meeting those mileage requirements. Defendants’

28 interpretation is also inconsistent with their prior practice in carrying out the statute.
9
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1 None of the previously issued waivers called for the waiver of laws so that DHS

2 could replace a pre-existing barrier. Doc. 30-6, Exs. 13–17. For these reasons,

3 California is entitled to Declaratory Relief on its Third Claim for Relief.

4

C. The 2017 Waivers are Invalid Because the Secretary’s Waiver

Authority Expired on December 31, 2008 (Fourth Claim)

5

6

Defendants argue that the power granted to DHS in Section 102(a) “provides a

7 general mandate to take action, and that § 102(b) (which contains IIRIRA’s 2008

8 deadlines) identifies particular congressional priorities to be pursued.” Opp’n at 28.

9 Under Defendants’ theory, Section 102(b) “merely identifies [sic] reflects

10 Congress’s shifting priorities.” Id. at 32. Defendants further argue the sunset date

11 was only meant to apply to “priority areas.” Id. at 37, 38. Defendants read

12 subsections (a) and (b) as separate grants of delegated authority.

13

But that argument ignores the express statutory language and renders the

14 deadlines in Section 102(b)(1)(B)(i) and (ii) superfluous. Because subsection (b)

15 begins with the phrase “in carrying out subsection (a),” the two subsections cannot

16 be read as two separate grants of authority. Further, by imposing a deadline, Section

17 102(b)(1)(B)(i) is better understood as providing an outright limitation on the

18 Secretary’s authority to use the waiver provision. If, as Defendants argue, the

19 Secretary could always identify additional fencing and issue waivers to

20 expeditiously construct that fencing, it would violate the well-established rule that,

21 “[w]hen Congress acts to amend a statute, we presume it intends its amendment to

22 have real and substantial effect.” Stone v. INS, 514 U.S. 386, 397 (1995).

23

The more consistent way to read the amended statute is that Congress in

24 Section 102(b) directs DHS in how it must carry out Section 102(a) and under what

25 circumstances the waiver authority may be used to further the goal of expeditious

26 construction contemplated in Section 102(b)(1)(B)(ii). This is supported by

27 Defendants’ historical practice, such as Secretary Chertoff’s actions to comply with

28 the congressional mandate and intent by identifying more than 370 miles of priority
10
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1 areas for expedited construction, issuing waivers for this expedited construction,

2 and committing DHS to a total of 661 miles of border fencing by the first half of

3 2009. Doc. 30-4, Ex. 5 at ECF pp. 49-51. No Secretary has issued any waivers

4 since that date until the current 2017 Waivers. Significantly, in each of the previous

5 waivers the Secretary was following the instructions set-forth in subsection (b);

6 none strayed outside those specific directives.10 Unlike the previous waivers,

7 former Secretaries Kelly and Duke did not issue waivers in response to

8 Congressional direction set forth in subsection (b) and, in fact, have issued waivers

9 that conflict with deadlines expressed in that subsection.

10

The limitation on the Secretary’s authority in Section 102(b) is unique because

11 it only has meaning if applied to fencing projects under the section as a whole. It

12 reflects congressional intent that Section 102 was not intended to operate in

13 perpetuity. Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004). Congress would have no

14 reason to limit the Secretary’s authority by imposing deadlines under Section

15 102(b), if it intended the statute to last in perpetuity. This interpretation is further

16 consistent with language in Section 102(c)(1) that a waiver may only be used when

17 “necessary to ensure expeditious construction of the barriers and roads under this

18 section.” Defendants’ interpretation robs the statute of all urgency, eviscerating any

19 limitations on the Secretary’s authority under Section 102(b)(1)(B)(i) and (ii).

20

California is entitled to summary judgment on its Fourth Claim and

21 Defendants’ sole defense to California’s NEPA and CZMA claims should be

22 rejected because the waiver authority expired.

23

24

25 10 For example, the September 2005 waiver followed the directions set forth
26 in subsection (b) of the initial version of Section 102. The January and October 2007 waivers were issued in response to subsection (b) as amended by the Secure
27 Fence Act of 2006. And, the April 2008 waivers were issued in direct response to the subsection (b) deadlines expressed in the current version of Section 102, which
28 had been amended a few months earlier. 1D1oc. 30-6, Exs. 13–17.
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1

D. The Secretary’s Failure to Make Sufficient Findings Renders

the 2017 Waivers Invalid.

2

3

The Secretary must make sufficient findings to demonstrate the San Diego and

4 Calexico Projects satisfy Section 102’s requirements that the Projects are

5 “necessary,” limited to “additional physical barriers and roads,” and in “areas of

6 high illegal entry” (Section 102(a)). The Projects must also be located where they

7 would be “most practical and effective” (Section 102(b)). 8 U.S.C. § 1103 note.

8

Defendants do not dispute that the Secretary failed to determine the Projects

9 were located where fencing would be “most practical and effective.” They argue

10 instead that the Secretary adequately met the statutory requirements by making

11 conclusory statements that simply restate the statutory language that require

12 findings. Opp’n at 38–41. However, conclusory statements that merely parrot the

13 statute are inadequate. Dickson v. Sec’y of Def., 68 F.3d 1396, 1405 (D.C. Cir.

14 1995). Absent findings that support those conclusions, courts cannot conduct a

15 meaningful review of the Secretary’s actions. Id.; cf. Hawaii, 2017 WL 6554184 at

16 *9. This is especially true here, where DHS and its Secretary have made public

17 statements contradicting any claim that fencing in San Diego or El Centro is 18 necessary, a priority, or most practical and effective.11 In arguing that the Secretary

19 need not provide a rationale, Defendants rely on the jurisdictional limitation in

20 Section 102(c)(2)(A) and the “sole discretion” language in Section 102(c). Opp’n at

21 39. But those provisions do not address the findings necessary for adequate judicial

22 review of whether Section 102 authorizes the Projects. The 2017 Waivers’ lack of

23 those findings renders them invalid.

24

25 11 DHS asks the court to ignore a March 27, 2017 report (Cal. Ex. 9),
26 claiming it is “privileged” and “not part of the administrative record.” Opp’n at 50 n. 40. But this case is not an appeal of an administrative decision for which a record
27 is required, and DHS waived any (non-existent) privilege by sharing this report externally. See https://www.revealnews.org/blog/senate-democrats-answer-
28 questions-raise-concerns-with-trumps-wa1l2l/
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1 IV. SECTION 102 AND THE 2017 WAIVERS INTERFERE WITH CALIFORNIA’S

EQUAL SOVEREIGNTY AND POLICE POWERS IN VIOLATION OF THE

2

TENTH AMENDMENT (ELEVENTH CLAIM)

3

The state sovereignty principles enshrined in the Tenth Amendment require

4 that federal action which burdens a disfavored subset of states or invades states’

5 traditional police powers must be “sufficiently related to the problem that it

6 targets.” Shelby Cty., Ala. v. Holder, 133 S. Ct. 2612, 2622 (2013). Defendants do

7 not seriously engage with this requirement. Instead, they assert that no Tenth

8 Amendment violation occurs where Congress acts pursuant to powers provided by

9 the Constitution and, in turn, that the 2017 Waivers are a valid delegation of

10 congressional powers. But the Tenth Amendment is not nearly so anemic, nor are

11 Congress’s powers so expansive as Defendants claim.

12

Defendants mistakenly assume that the only way to violate the Tenth

13 Amendment is by passing laws that exceed Congress’s limited constitutional

14 powers. But where, as here, the federal government intrudes upon “state

15 sovereignty,” such intrusion violates the Tenth Amendment “even where Congress

16 has the authority under the Constitution to pass laws.” New York v. United States,

17 505 U.S. 144, 166, 177, 188 (1992); Shelby Cty., 133 S. Ct. at 2622–23, 2629

18 (federal law enacted pursuant to the Fifteenth Amendment and Article I of the

19 Constitution that violates states’ “equal sovereignty” nonetheless unconstitutional);

20 Printz v. United States, 521 U.S. 898, 923–24 & n.13 (1997) (federal law enacted

21 pursuant to the “Commerce Clause [that] violates the principle of state sovereignty”

22 nonetheless unconstitutional).

23

The Supreme Court has expressly rejected the same cramped interpretation of

24 the Tenth Amendment that Defendants advance here, holding that even where

25 Congress has power to “enact legislation” and “pre-empt state regulation,” it must

26 use a “method” that does not impinge on states’ “inviolable sovereignty.” New

27 York, 505 U.S. at 188. None of the cases Defendants cite are to the contrary or even

28
13
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1 address the equal sovereignty doctrine, and several expressly disclaim the Tenth

2 Amendment as a basis for their ruling.12

3

Defendants also attempt to avoid Shelby County, which expanded the Tenth

4 Amendment’s protection of state sovereignty in response to federal action, by

5 mischaracterizing California’s case and the 2017 Waivers’ scope. Defendants claim

6 Shelby County “does not stand for the general proposition that constitutionally

7 enacted statutes become vulnerable whenever there are ‘changed circumstances.’”

8 Opp’n at 73 (selectively quoting Cal. Br. at 26). But Defendants do not dispute the

9 proposition for which Shelby County does stand (and for which it was cited): that

10 “a validly enacted federal statute that burdens a subset of states but not others will

11 become unconstitutional if progress is made curbing the problem the statute seeks

12 to prevent.” Cal. Br. at 25 (citing 133 S. Ct. at 2628–29). Nor do Defendants cite a

13 single case construing Shelby County otherwise.

14

Defendants do not dispute that illegal crossings in the San Diego and El

15 Centro Sectors have been substantially reduced and admit that the rates of illegal

16 entry are “far less” in California than other southern border states. Doc. 35-3 at 28.

17 As California explained, such progress “cannot be ignored” and shows that

18 continued federal interference with state sovereignty is no longer justified. Shelby

19 Cty., 133 S. Ct. at 2628. In response, Defendants simply assert that the steep

20 declines in illegal crossings do not “undermine the legitimacy” of Congress’s “goal

21 of operational control” or DHS’s “authority [that] Congress delegated to pursue that

22 goal.”13 Opp’n at 73. But a legitimate goal cannot justify federal intrusion into

23 states’ sovereignty—if it did, the legitimate goal of racial equality would have

24

12 See, e.g., Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 498 F.3d

1031, 1042 (9th Cir. 2007).

25

13 Defendants’ contention that the border “need not be the crisis it was in the

1990s” to justify the 2017 Waivers is similarly unavailing. Opp’n at 73 (citing Cty.

26 of El Paso v. Chertoff, 2008 WL 4372693, at *8 (W.D. Tex. Aug. 29, 2008)). The

case Defendants rely upon did not address the equal sovereignty doctrine and was

27 decided before Shelby County made clear that the constitutional inquiry focuses on

whether “progress has been made”—not whether the problem “still exists.” Shelby

28 Cty., 133 S. Ct. at 2619, 2625.

14

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1 saved the statute in Shelby County. Rather, a legitimate goal must be pursued using

2 a “method” that does not impinge on states’ “inviolable sovereignty.” New York,

3 505 U.S. at 188.

4

Here, the method DHS adopted—based on the Secretary’s unfettered

5 discretion and not on apprehension data—results in the “deprivation of a State’s

6 sovereign powers.” Heath v. Alabama, 474 U.S. 82, 93 (1985) (holding state could

7 not be prevented from “vindicating its sovereign authority through enforcement of

8 its laws”). Defendants’ conjecture that Congress could theoretically treat border

9 states differently from non-border states (Opp’n at 72) is beside the point because

10 that is not what happened. The constitutional violation here is the singling out of

11 California, and such a “departure from the fundamental principle of equal

12 sovereignty” among the states requires Defendants to prove that DHS’s “disparate

13 geographic coverage is sufficiently related to the problem that it targets.” Shelby

14 Cty., 133 S. Ct. at 2622. Defendants have not made that showing here.

15

Moreover, the 2017 Waivers far exceed Congress’ limited powers under the

16 Constitution. While Defendants invoke Congress’s inherent power to determine

17 immigration policy, no case holds that such power permits the Executive to waive

18 laws of general application—such as California’s environmental, work place safety,

19 and anti-graft laws—that apply regardless of immigration status. See Hawaii, 2017

20 WL 6554184 at *21 (Executive “lacks independent constitutional authority” to act

21 because “control over the entry of aliens is a power within the exclusive province of

22 Congress”); Galvan v. Press, 347 U.S. 522, 531 (1954).

23

Finally, Defendants “resort[] to the last, best hope of those who defend ultra

24 vires” federal action: the Necessary and Proper Clause, which—when coupled with

25 the Commerce Clause—authorizes Congress to regulate interstate commerce.

26 Printz, 521 U.S. at 923–24. But Defendants cannot rely on the Commerce Clause

27 because the 2017 Waivers do not purport to regulate “economic activity” and lack

28 the requisite nexus to interstate commerce. United States v. Morrison, 529 U.S.
15
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1 598, 613 (2000). Nor is the Necessary and Proper Clause of any help; the 2017

2 Waivers violate California’s sovereignty, and a law that “violates the principle of

3 state sovereignty . . . is not a ‘La[w] . . . proper for carrying into Execution the

4 Commerce Clause.” Printz, 521 U.S. at 923–24.14

5 V. SECTION 102(C)’S HURDLES AND THE VAGUE 2017 WAIVERS DEPRIVE

CALIFORNIA OF FAIR NOTICE AND ACCESS TO THE COURTS (SIXTH

6

CLAIM)

7

Defendants attempt to deflect from the 2017 Waivers’ deficiencies by faulting

8 California for not identifying all state “laws that have actually been waived.” Opp’n

9 at 72 n.61. But the 2017 Waivers’ failure to specify which laws they waive (leaving

10 DHS apparently uncertain as to what it has done) only proves that the 2017 Waivers

11 are unconstitutionally vague. Because they purport to waive more than just the

12 listed laws, the 2017 Waivers’ scope is unknown.15 Californians and the courts need

13 more to know “where to draw the line between what is permissible and what is

14 forbidden.” Hirschkop v. Snead, 594 F.2d 356, 371, 375 (4th Cir. 1979) (code

15 barring activity that “relates to” specified matters was unconstitutionally vague).

16

Defendants’ attempts to moot the issue are unfounded. They now claim that

17 DHS will “construe” the 2017 Waivers more narrowly. Opp’n at 70. But such post-

18 hoc interpretations by counsel cannot cure the admitted constitutional violation

19 here. See Washington v. Trump, 847 F.3d 1151, 1165–66 (9th Cir. 2017) (counsel’s

20

14 Defendants also fail to distinguish City of Boerne v. Flores, which struck

down a federal statute that, like Section 102, interfered with states’ traditional

21 police powers by enabling the nullification of laws that did not impede the statute’s

object. 521 U.S. 507, 532–36 (1997). It is no answer to note that the case addressed 22 “Congress’s power under § 5 of the Fourteenth Amendment” (Opp’n at 73) because

the “scope of Congress’ power under § 5 is equivalent to that under the necessary

23 and proper clause” upon which Defendants rely. EEOC v. Elrod, 674 F.2d 601, 604

(7th Cir. 1982); Laro v. New Hampshire, 259 F.3d 1, 6 (1st Cir. 2001). Nor are

24 Defendants correct that City of Boerne is limited to claims of “sovereign immunity”

(Opp’n at 73), as the case cited does not stand for that proposition and City of 25 Boerne never even mentions the term.

15 We do know, however, that the 2017 Waivers purport to waive unspecified

26 state and federal laws “related to the subject of” more than two dozen listed laws

that run the gamut from protections against religious discrimination, 42 U.S.C.

27 § 2000bb, to requirements for gravesite preservation, 25 U.S.C. § 3001 et seq., to a

ban on an agency’s unauthorized use of funds, 54 U.S.C. § 320106. 82 Fed. Reg.

28 35,984 (Aug. 2, 2017); 82 Fed. Reg. 42,81269 (Sept. 12, 2017).

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1 “interpretation” of prior order, even if “binding,” might not “persist past the

2 immediate stage of these proceedings” and so could not moot challenge). Nor are

3 Defendants correct that few state laws apply to these Projects. Opp’n at 70. In fact,

4 courts routinely apply California law to federal construction projects. See, e.g.,

5 Harper/Nielsen-Dillingham, Builders, Inc. v. United States, 81 Fed. Cl. 667, 679

6 (2008) (applying California contract law to suit against federal government).

7

Defendants also incorrectly assert that a void-for-vagueness challenge requires

8 a plaintiff to identify a property or other interest under the Due Process Clause and

9 that California has failed to do so. But, as Defendants concede (Opp’n at 66 n.53),

10 California’s challenge is not grounded solely in the Due Process Clause, as a

11 “regulation may also violate the First Amendment if it is unconstitutionally vague.”

12 O’Brien v. Welty, 818 F.3d 920, 930 (9th Cir. 2016). The “establishment of a vested

13 property right is irrelevant” to a challenge that implicates the First Amendment.

14 Outdoor Media Grp., Inc. v. City of Beaumont, 506 F.3d 895, 903 (9th Cir. 2007).

15 Regardless, California has established a Due Process interest in the enforcement of

16 its state laws and the preservation of the “property that it owns and manages

17 adjacent to DHS’s Border Wall Projects.” Cal. Br. at 13; see Bd. of Regents of State

18 Colleges v. Roth, 408 U.S. 564, 577–78 (1972).

19

Finally, Defendants contend that the Petition Clause poses no limit on the

20 ability to restrict access to the courts in this case, but the authorities cited fail to

21 support this proposition.16 Those cases do not address the harm here, which is the

22 complete deprivation of any judicial forum for numerous claims. Moreover, the

23

16 Roller v. Gunn, 107 F.3d 227 (4th Cir. 1997), relates to a prisoner’s challenge to 24 “filing fee requirement” under “equal protection” clause and did not address the

Petition Clause. Wilbur v. Locke, 423 F.3d 1101, 1116 (9th Cir. 2005) (addressing 25 dismissal for failure to join indispensable party where plaintiffs “never sought to

26

amend their complaint” to include party to the contract that they tried to void), abrogated by Levin v. Commerce Energy, Inc., 560 U.S. 413 (2010), concludes that

the plaintiffs’ own error deprived them of a federal forum. And, Nunag-Tanedo v. 27 E. Baton Rouge Par. Sch. Bd., 711 F.3d 1136, 1137–38 (9th Cir. 2013), the court

determined that judicial review was merely delayed, not denied. 28

17

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1 Supreme Court abrogated Wilbur v. Locke, upon which Defendants rely, because

2 the expansion of federal jurisdiction solely to extinguish state court jurisdiction

3 must be questioned and statutes must give “proper respect for state functions.”

4 Levin, 560 U.S. at 420–23 (“Statutes conferring federal jurisdiction, we have

5 repeatedly cautioned, should be read with sensitivity to ‘federal-state relations.’”).

6 VI. SECTION 102(C) AND THE 2017 WAIVERS VIOLATE ARTICLE I, SECTION 3, OF THE UNITED STATES CONSTITUTION (NINTH CLAIM)
7

8

Defendants assert that Plaintiffs identify no constitutional provision or case

9 demonstrating that the Executive Branch’s power in the area of criminal law is

10 more restrained than when it acts concerning civil law. Opp’n at 57. However, the

11 Constitution carefully delineates and limits the power of the Executive to act in the

12 criminal law sphere. Article I §§ 2, 3. Supreme Court cases also have constrained

13 the Executive’s power to pardon individuals prior to committing a criminal act and

14 the power of the Executive to circumvent criminal law and procedure. United States

15 v. Nixon, 418 U.S. 683, 707–08 (1974); Ex Parte Grossman, 267 U.S. 87, 119–20

16 (1925).

17

Further, contrary to Defendants’ allegations, the Supreme Court has

18 recognized constraints on congressional delegations in the criminal sphere. In

19 Fahey v. Mallonee, 332 U.S. 245, 249–50 (1947), United States v. L. Cohen

20 Grocery, 255 U.S. 81, 89–92 (1921), and Mistretta v. United States, 488 U.S. 361,

21 373 n.7 (1989), the Court recognized that more may be needed from Congress when

22 a criminal statute is involved. In addition, in Whitman, 531 U.S. at 475, the

23 Supreme Court recognized that in congressional delegations the “degree of agency

24 discretion that is acceptable varies according to the scope of the power

25 congressionally conferred.” If Congress wishes to waive a criminal law, it has the

26 power to do so and can provide the Executive the power to carry out the waiver

27 under certain circumstances. But Congress cannot circumvent the Constitution and

28 allow the Executive to choose, in advance, which criminal laws to waive and when
18
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1 to waive them.17 Here, where Congress is delegating the power to waive a criminal

2 law, Congress must at least state which criminal laws can be waived and when.18

3 VII. THE 2017 WAIVERS VIOLATE THE SEPARATION OF POWERS DOCTRINE

THE NON-DELEGATION DOCTRINE, AND THE PRESENTMENT CLAUSE

4

(SEVENTH, EIGHTH AND TENTH CLAIMS)

5

Although Defendants allegedly address California’s Separation of Powers

6 claim in their argument related to the non-delegation doctrine, they ignore the

7 additional constitutional problems with Section 102 related to Separation of

8 Powers. The Supreme Court does articulate the non-delegation doctrine to cover

9 most instances of delegation of legislative power to the Executive, but it limits that

10 doctrine in cases where Congress provides the Executive power to decide which

11 tariffs, or laws, could be modified or terminated and under what circumstances.

12 Field v. Clark, 143 U.S. 649 (1892); J.W. Hampton, Jr. & Co. v. United States, 276

13 U.S. 394 (1928). In those instances, delegation does not violate Separation of

14 Powers if the Executive is “the mere agent of the lawmaking department to

15 ascertain and declare the event upon which its expressed will was to take effect.”

16 J.W. Hampton, 276 U.S. at 411. The Supreme Court has therefore upheld statutes

17 where Congress legislated in the “contingency.” Id. at 410.

18

However, unlike the legislation involved in Field or J.W. Hampton, or even

19 the original version of Section 102, the current version of Section 102 authorizes

20 the Secretary to pick and choose among enacted laws and determine, in his or her

21

17 Defendants simply brush off as unimportant the Secretary’s waiver of two

serious criminal laws, which can no longer be used to prosecute criminal actions 22 that harm Californians. While recognizing the two examples mentioned by

California, Defendants do not seem to acknowledge that these were simply

23 examples and the Secretary in fact waived more than a half-dozen criminal laws.

See, e.g., 16 U.S.C. § 1540(b)(1); 33 U.S.C. § 1321(b)(5); 33 U.S.C. § 401; 42

24 U.S.C. § 7413(1); 16 U.S.C. § 707; 42 U.S.C. § 300; 16 U.S.C. § 668.

18 Defendants contend, without support, that only the delegation of imposing 25 criminal sanctions concerned the Supreme Court in Fahey, not the authority to lift

criminal sanctions. Opp’n at 58 n.47. The seriousness with which the Supreme

26 Court has treated Presidential immunity from criminal law and procedure and the

proposition that no one is above the law, makes clear that whatever distinction

27 exists between those powers, it is without a difference in the case of delegation of

power. Nixon, 418 U.S. at 707–08; Marbury v. Madison, 5 U.S. 137, 165–66

28 (1803); United States v. Lee, 106 U.S. 19169, 220 (1882).

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1 sole discretion, which pieces to waive. In enacting Section 102, Congress did not

2 state which laws are to be waived or why, and instead gave the Executive Branch

3 that authority. Section 102 was not legislated in the contingency, and Congress

4 could not know which laws were going to be waived when it enacted the law, nor

5 did the President when he signed the law. Since Defendants have chosen to not

6 even address this additional violation, this waiver authority must be declared

7 unconstitutional and the 2017 Waivers must be invalidated.

8

With regard to California’s remaining Eighth and Tenth Claims for Relief,

9 California agrees with co-Plaintiffs’ arguments in their reply briefs that Section

10 102(c) violates the Non-Delegation Doctrine and the Presentment Clauses. To avoid

11 duplication, California adopts those arguments herein by reference.

12

CONCLUSION

13

Based on the foregoing, California is entitled to summary judgment on each of

14 its claims for declaratory relief.

15 Dated: January 5, 2018

Respectfully Submitted,

16

XAVIER BECERRA

Attorney General of California 17

18

19

20

s/ MICHAEL P. CAYABAN

21

MICHAEL P. CAYABAN

Supervising Deputy Attorney General

22

Attorneys for the People of the State

of California, by and through Xavier

23

Becerra, Attorney General, and the

California Coastal Commission 24

25

26

27

28
20
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CERTIFICATE OF SERVICE

Case Name: In Re: Border Infrastructure No. 17cv1215-GPC(WVG)

Environmental Litigation

Consolidated with

Case No. 17cv01873 GPC (WVG)

Case No. 17cv01911 GPC (WVG)

I hereby certify that on January 5, 2018, I electronically filed the following documents with the Clerk of the Court by using the CM/ECF system:

CALIFORNIA’S REPLY IN SUPPORT OF CALIFORNIA’S MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO DEFENDANTS’ CROSSMOTION FOR SUMMARY JUDGMENT
CALIFORNIA’S RESPONSE TO DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND SUPPLEMENTAL STATEMENT OF FACTS IN OPPOSITION TO DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT;
I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on January 5, 2018, at San Diego, California.

Michael Cayaban Declarant
SD2017306030 71393428.docx

s/Michael Cayaban Signature

Case 3:17-cv-01215-GPC-WVG Document 39-1 Filed 01/05/18 PageID.1356 Page 1 of 6

1 XAVIER BECERRA Attorney General of California
2 ROBERT W. BYRNE Senior Assistant Attorney General
3 MICHAEL P. CAYABAN (SBN 179252) DAVID G. ALDERSON (SBN 231597)
4 Supervising Deputy Attorneys General JOHN APPELBAUM (SBN 149643).
5 NOAH GOLDEN-KRASNER (SBN 217556) JANELLE M. SMITH (SBN 231801)
6 AMIE MEDLEY (SBN 266586) BAINE P. KERR (SBN 265894)
7 JULIA FORGIE (SBN 304701) JESSICA BARCLAY STROBEL (SBN 280361)
8 Deputy Attorneys General 600 West Broadway, Suite 1800
9 San Diego, California 92101 TELEPHONE: (619) 738-9313
10 FAX: (619) 645-2271 E-mail: Mike.Cayaban@doj.ca.gov
11 Attorneys for the People of the State of
California, by and through Xavier Becerra,
12 Attorney General, and the California Coastal
Commission
13

14

IN THE UNITED STATES DISTRICT COURT

15

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

16 17 IN RE: BORDER
INFRASTRUCTURE 18 ENVIRONMENTAL LITIGATION 19 20 21 22 23 24 25 26

Case No. 17cv1215 GPC(WVG)

Consolidated with Case No. 17-cv-01873 GPC(WVG) Case No. 17-cv-01911 GPC(WVG)

CALIFORNIA’S RESPONSE TO DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS AND SUPPLEMENTAL STATEMENT OF FACTS IN OPPOSITION TO DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT

Date:

February 9, 2018

Time: 1:30 p.m.

Courtroom: 2D

Judge: Hon. Gonzalo P. Curiel

27

28

1

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1

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Local Rule

2 7.1(f)(1), and this Court’s Civil Pretrial & Trial Procedures, Plaintiffs, the People of

3 the State of California and the California Coastal Commission (collectively

4 “Plaintiffs” or “California”), submit this response to Defendant’s Statement of

5 Material Undisputed Facts submitted in support of Defendant’s motion for

6 summary judgment.

7

Defendants’ Statement of Fact

California Plaintiffs’ Response

8 1. On August 2, 2017, the Secretary of Undisputed except as to the legal

9

the Department of Homeland Security (“DHS”) published a waiver

conclusion that the August 2, 2017, waiver was “pursuant to” § 102.

10 determination pursuant to § 102 of the Defendants did not satisfy the statute’s

11

Illegal Immigration Reform and Immigrant Responsibility Act of 1996

requirements.

12 (“IIRIRA”), Pub. L. No. 104-208, Div.

13

C, Title I, 110 Stat. 3009-554 (Sept. 30, 1996), as amended (codified at 8 U.S.C.

14 § 1103 Note). See 82 Fed. Reg. 35984

15 (Aug. 2, 2017). 2. The waiver determination covers a Undisputed.

16 project area comprising a fifteen-mile

17 stretch of border in the U.S. Border Patrol’s San Diego Sector extending

18 from the Pacific Ocean eastward. Id.

19 3. The project area falls within the

Undisputed. However, the vast majority

jurisdiction of three U.S. Border Patrol of the project area is in Imperial Beach

20 stations: Imperial Beach, Chula Vista, and Chula Vista. Only a small portion of

21 and Brown Field. See Ex. 21, CBP,

the project areas falls with the Brown

Chula Vista Station (Mar. 11, 2014); Ex. Field Station’s jurisdiction and the

22 22, CBP, Brown Field Station (Mar. 11, project area represents a tiny portion of

23 2014) 24

the “approximately 200 square miles of mostly mountainous terrain” subject to the Brown Field Station’s jurisdiction,

25

Def’s Ex. 22 does not material facts.

26

27

28

2

CA’s Response to Defs.’ Statement of Undisputed Facts & Supplemental Statement (Case No. 17cv1215 GPC (WVG))

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1

Defendants’ Statement of Fact

California Plaintiffs’ Response

2 4. The DHS Secretary determined that This is a legal conclusion; to the extent a

both the San Diego Sector and the

response is required, Plaintiffs dispute

3 project area are “an area of high illegal that the DHS Secretary “determined” the

4 entry.” Id. at 35985. 5

facts Defendants assert. The waiver made no findings, is contrary to the facts, and simply parrots the language in § 102.

6 5. The DHS Secretary determined that This is a legal conclusion; to the extent a

there is “a need to construct physical response is required, Plaintiffs dispute 7 barriers and roads . . . in the vicinity of that the DHS Secretary “determined” the

8 the border of the United States to deter facts Defendants assert. The waiver

9

illegal crossings in this Project Area.” Id. made no findings, is contrary to the facts,

at 35985

and simply parrots the language in § 102.

10 6. The DHS Secretary determined that This is a legal conclusion; to the extent a

11

exercise of waiver authority under the IIRIRA was necessary “to ensure the

response is required, Plaintiffs dispute that the DHS Secretary “determined” the

12 expeditious construction of the barriers facts Defendants assert. The waiver

13 and roads in the Project Area.” Id.

made no findings, is contrary to the facts, and simply parrots the language in § 102.

14 7. On the basis of these findings, the Disputed that the DHS Secretary acted

15 Secretary announced the waiver of certain laws “with respect to the

on the basis of “findings.” Defendants offer no factual support for their

16 construction of roads and physical

assertion. As detailed in Plaintiffs’

17 barriers . . . in the Project Area.” Id.

Motion for Summary Judgment and Reply, the waiver made no findings and

18

is contrary to the facts.

19 8. Among the waived laws are the

Undisputed except to the extent

National Environmental Policy Act, 42 Defendants assert that the waiver is

20 U.S.C. §§ 4321 et seq., the Endangered valid, which is a legal conclusion.

21 Species Act, 16 U.S.C. §§ 1531 et seq., and the Coastal Zone Management Act,
22 16 U.S.C. §§ 1451 et seq., along with

23 “all federal, state, or other laws, regulations, and legal requirements of,
24 deriving from, or related to the subject

25 of, the [listed] statutes.” See 82 Fed. Reg. at 35985
26

27

28

3

CA’s Response to Defs.’ Statement of Undisputed Facts & Supplemental Statement (Case No. 17cv1215 GPC (WVG))

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1

Defendants’ Statement of Fact

California Plaintiffs’ Response

2 9. One project conducted pursuant to the Undisputed except as to the legal waiver determination is the construction conclusion that the project was
3 of eight border wall prototypes on a two conducted “pursuant to” the waiver

4 acre plot at the eastern end of the

determination. Defendants did not satisfy

secondary barrier near San Diego. See 82 the requirements of § 102. 5 Fed. Reg. at 35984; Memorandum,

6 Construction and Evaluation of Border

Wall Prototypes, U.S. Border Patrol, San 7 Diego Sector, California (Sept. 25, 2017)

8 (included in ECF No. 18-2 as Exhibit 14).
9 10. Contracts for the prototypes project Undisputed.

10 were awarded on August 31 and

11

September 7, 2017. See Press Release (Sept. 7, 2017) (link); Press Release

12 (Aug. 31, 2017) (link) (included in ECF

13

No. 18-2 as Exhibits 16, 17). 11. Construction for the prototypes

Undisputed.

14 project began on September 26, 2017,

15

and was completed within 30 days as scheduled. See Press Release (Oct. 26,

16 2017) (link) (attached as Exhibit 20);

17 Press Release (Sept. 26, 2017) (link) (included in ECF No. 18-2 as Exhibit

18 15).

19 12. The second project to be conducted Undisputed except as to the legal pursuant to this waiver determination is conclusion that the project was
20 the replacement of approximately 14 conducted “pursuant to” the waiver

21 miles of existing primary fencing near determination. Defendants did not satisfy San Diego. 82 Fed. Reg. at 35984-85. the requirements of § 102.
22 13. The existing primary fencing was This fact is immaterial. Undisputed

23 primarily constructed in the early 1990s except as to the legal conclusion that the using a design that the DHS Secretary DHS Secretary “determined” the facts
24 has determined is “no longer optimal for Defendants assert.

25 Border Patrol operations.” Id.

26

27

28

4

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1

Defendants’ Statement of Fact

California Plaintiffs’ Response

2 14. On September 12, 2017, the

Undisputed except as to the legal

Secretary of the Department of

conclusion that the September 12, 2017,

3 Homeland Security (“DHS”) published a waiver was “pursuant to” § 102 because

4 waiver determination pursuant to § 102 Defendants did not satisfy the statute’s

of the IIRIRA, as amended. See 82 Fed. requirements. 5 Reg. 42829 (Sept. 12, 2017).

6 15. The waiver determination covers a Undisputed.

project area comprising a three-mile 7 stretch of border in the U.S. Border

8 Patrol’s El Centro Sector near Calexico,

9

California. Id. 16. The DHS Secretary determined that This is a legal conclusion; to the extent a

10 both the El Centro Sector and the project response is required, Plaintiffs dispute

11

area are “an area of high illegal entry.” Id. at 42830.

that the DHS Secretary “determined” the facts Defendants assert. The waiver

12

made no findings, is contrary to the facts,

13

and simply parrots the language in § 102. 17. The DHS Secretary determined that This is a legal conclusion; to the extent a

14 there is “a need to construct physical response is required, Plaintiffs dispute

15 barriers and roads . . . in the vicinity of that the DHS Secretary “determined” the the border of the United States to deter facts Defendants assert. The waiver

16 illegal crossings in this Project Area.” Id. made no findings, is contrary to the facts,

17

and simply parrots the language in § 102.

18. The DHS Secretary determined that This is a legal conclusion; to the extent a

18 exercise of waiver authority under the response is required, Plaintiffs dispute

19 IIRIRA was necessary “to ensure the that the DHS Secretary “determined” the

expeditious construction of the barriers facts Defendants assert. The waiver

20 and roads in the Project Area.” Id.

made no findings, is contrary to the facts,

21 19. On the basis of these findings, the
22 Secretary announced the waiver of

and simply parrots the language in § 102. Disputed that the DHS Secretary acted on the basis of “findings.” Defendants

23 certain laws “with respect to the construction of roads and physical
24 barriers . . . in the Project Area.” Id.

offer no factual support for their assertion. As detailed in Plaintiffs’ Motion for Summary Judgement and

25

Reply, the waiver made no findings and

is contrary to the facts.

26

27

28

5

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1

Defendants’ Statement of Fact

California Plaintiffs’ Response

2 20. Among the waived laws are the

Undisputed except to the extent

National Environmental Policy Act, 42 Defendants assert that the waiver is 3 U.S.C. §§ 4321 et seq., the Endangered valid, which is a legal conclusion.

4 Species Act, 16 U.S.C. §§ 1531 et seq., along with “all federal, state, or other
5 laws, regulations, and legal requirements

6 of, deriving from, or related to the

subject of, the [listed] statutes.” See 82 7 Fed. Reg. at 42830.

8 21. The project to be conducted pursuant Undisputed except as to the legal

9

to this waiver determination is the

conclusion that the project was

replacement of approximately 3 miles of conducted “pursuant to” the waiver

10 existing primary fencing near Calexico. determination. Defendants did not satisfy

11

82 Fed. Reg. at 42829-30. 22. The existing primary fencing was

the requirements of § 102. Undisputed except as to the legal

12 primarily constructed in the early 1990s conclusion that the DHS Secretary

13

using a design that the DHS Secretary “determined” the facts Defendants assert. has determined is “no longer optimal for Moreover, this fact is not material.

14 Border Patrol operations.” Id.

15

16

Additionally, California hereby incorporates by reference the facts and

17 evidence detailed in the statements of undisputed fact submitted by all Plaintiffs

18 (Doc. 28-2, 30.1, 33) as supplemental facts in opposition Defendants’ cross-motion

19 and precluding judgment in Defendants’ favor.

20 Dated: January 5, 2018

Respectfully submitted,

21

XAVIER BECERRA

Attorney General of California

22

23

s/Michael P. Cayaban

24

MICHAEL P. CAYABAN

Supervising Deputy Attorney General

25

Attorneys for the People of the State of

California, by and through Xavier

26

Becerra, Attorney General, and the

California Coastal Commission 27

28

6

CA’s Response to Defs.’ Statement of Undisputed Facts & Supplemental Statement (Case No. 17cv1215 GPC (WVG))

 
 Case 3:17-cv-01215-GPC-WVG Document 42 Filed 01/23/18 PageID.1366 Page 1 of 49

1 CHAD A. READLER

Acting Assistant Attorney General

2 Civil Division

3

JOHN R. TYLER Assistant Branch Director

4 GALEN N. THORP

Senior Counsel

5 VA State Bar No. 75517

6

950 Pennsylvania Avenue NW Washington, DC 20530

7

Tel: (202) 514-4781 Fax: (202) 616-8460

8 Email: galen.thorp@usdoj.gov

9 Attorneys for Defendants

10 [Additional counsel listed below]

11

UNITED STATES DISTRICT COURT

12

SOUTHERN DISTRICT OF CALIFORNIA

13

14 15
IN RE: BORDER 16 INFRASTRUCTURE 17 ENVIRONMENTAL LITIGATION 18 19 20 21 22 23 24 25 26

Case No. 17cv1215-GPC(WVG)
Consolidated with Case No. 17cv1873 GPC (WVG) Case No. 17cv1911 GPC (WVG)
DEFENDANTS’ MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTIONS FOR SUMMARY JUDGMENT AND IN SUPPORT OF DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT
Date: February 9, 2018 Time: 1:30 pm Courtroom: 2D Hon. Gonzalo P. Curiel

27

28

Case 3:17-cv-01215-GPC-WVG Document 42 Filed 01/23/18 PageID.1367 Page 2 of 49

1

TABLE OF CONTENTS

2 TABLE OF CONTENTS ................................................................................... ii
3
4 TABLE OF AUTHORITIES ............................................................................. iv

5 TABLE OF EXHIBITS ..................................................................................... xi

6 INTRODUCTION .............................................................................................. 1

7 ARGUMENT ...................................................................................................... 2

8 I. California Has Not Carried Its Burden to Establish Standing...................... 2
9

10

II. The Court Lacks Jurisdiction to Consider Plaintiffs’ NonConstitutional Claims Regarding the Waiver Decisions .............................. 4

11

A. Plaintiffs Cannot Carve Up Each Waiver Determination into

12

Multiple Distinct Decisions Subject to APA Review ............................ 6

13

B. Congress Barred Ultra Vires Challenges Along with Other Non-

14

Constitutional Claims ............................................................................. 8

15 III. To the Extent the Court Conducts Ultra Vires Review, Plaintiffs

Have Failed to Make the “Two-Part” Showing Required in this

16

Circuit ......................................................................................................... 12

17

A. Plaintiffs Have Not Established That They Have Statutory Rights

18

to Vindicate Through Litigation........................................................... 13

19

B. Plaintiffs Have Not Established that the Secretary Violated Any

Clear Command in the Statute ............................................................. 14 20

21

1. Section 102(a) plausibly states a general mandate that can be applied apart from the specific Congressional priorities

22

identified in § 102(b)...................................................................... 14

23

2. Plaintiffs have not shown that § 102(c) waiver authority has

unambiguously expired .................................................................. 18

24

3. Plaintiffs have not shown that § 102(c) unambiguously

25

requires that the Federal Register notice of a waiver

26

determination include detailed “findings” ..................................... 19

27

4. Plaintiffs cannot show that key statutory terms

unambiguously preclude the waiver determinations at issue

28

here ................................................................................................. 20

Defs.’ Reply in Support of Cross-Motion for Summary ii
Judgment
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1 IV. Plaintiffs’ Constitutional Claims Fail ......................................................... 24

2

A. The Waiver Provision Does Not Violate Article I § 1 ......................... 24

3

B. The Waiver Provision Does Not Violate Article I § 3 ......................... 26

4

C. The Waiver Provision Does Not Violate Article I § 7 ......................... 27

5

D. The Waiver Provision Does Not Violate Constitutional Provisions

6

Regarding Access to the Courts ........................................................... 29

7

E. The Waiver Provision Does Not Violate the Tenth Amendment ........ 32

8 V. Plaintiffs Are Not Entitled to Relief Under Other Statutes or to the

9

Remedies They Seek for Their Constitutional and Ultra Vires Claims..... 35

10 CONCLUSION................................................................................................. 37

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
Defs.’ Reply in Support of Cross-Motion for Summary iii
Judgment
30

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1

TABLE OF AUTHORITIES

2 Cases

3 Acree v. Republic of Iraq, 4 370 F.3d 41 (D.C. Cir. 2004) ................................................................................. 28

5 Akiak Native Cmty. v. U.S. Postal Serv., 213 F.3d 1140 (9th Cir. 2000) ................................................................................ 36
6

7

Am. Airlines, Inc. v. Herman, 176 F.3d 283 (5th Cir. 1999) .................................................................................. 19

8 Am. Soc’y of Anesthesiologists v. Shalala, 9 90 F. Supp. 2d 973 (N.D. Ill. 2000) ....................................................................... 12

10 Barnum Timber Co. v. EPA, 11 No. 08-1988, 2008 WL 4447690 (N.D. Cal. Sept. 29, 2008) .............................. 3-4

12 Bd. of Governors of Fed. Reserve Sys. v. MCorp Fin.,

Inc., 502 U.S. 32 (1991) ......................................................................... 8, 10, 11, 13 13

14

Bear Valley Mut. Water Co. v. Jewell, 790 F.3d 977 (9th Cir. 2015) .................................................................................. 16

15 Bowen v. Michigan Acad. of Family Physicians,

16 476 U.S. 667 (1986) ............................................................................................. 4, 5

17 Boyd v. United States, 18 No. 15-3494, 2017 WL 1133512 (N.D. Cal. Mar. 27, 2017) ................................... 3

19 Cal. Sportfishing Prot. Alliance v. U.S. Bureau of Reclamation,

No. 15-912, 2015 WL 6167521 (E.D. Cal. Oct. 202015) ...................................... 13 20

21

Chamber of Commerce v. Reich, 74 F.2d 1322 (D.C. Cir. 1996) ................................................................................. 9

22 City of Boerne v. Flores,
23 521 U.S. 507 (1997) ............................................................................................... 33

24 Clinton v. City of New York, 25 524 U.S. 417 (1998) ............................................................................................... 27

26 County of El Paso v. Chertoff, 27 No. 08-196, 2008 WL 4372693 (W.D. Tex. 2008) .................................... 24, 27, 34

28
Defs.’ Reply in Support of Cross-Motion for Summary iv
Judgment
30

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1 Davis v. Fed. Election Comm’n, 554 U.S. 724 (2008) ................................................................................................. 2
2

3

Defenders of Wildlife v. Chertoff, 527 F. Supp. 2d 119 (D.D.C. 2007) ...................................................... 24, 25, 26, 27

4 Duldulao v. INS,
5 90 F.3d 396 (9th Cir. 1996) ...................................................................................... 5

6 Estep v. United States, 7 327 U.S. 114 (1946) ............................................................................................. 5, 8

8 George v. Evans, 9 311 F. App’x 426 (2d Cir. 2009) ............................................................................ 36 10 Gebhardt v. Nielsen,
_ F.3d _, 2018 WL 326238 (9th Cir. Jan. 9, 2018) .................................................. 9 11
Gila River Indian Community v. United States, 12 729 F.3d 1139 (9th Cir. 2013) ................................................................................ 32
13 Gonzalez v. Raich, 14 500 F.3d 850 (9th Cir. 2007) .................................................................................. 32

15 Griffith v. FLRA, 16 842 F.2d 487, 494 (D.C. Cir. 1988) ........................................................................ 23
17 Harland Clarke Holding Corp. v. Milken, 646 F. App’x 223 (3d Cir. 2016) .............................................................................. 7
18 Harper/Nielsen-Dillingham, Builders, Inc. v. United States,
19 81 Fed. Cl. 667 (2008) ............................................................................................ 31
20 Hawaii v. Trump, 21 878 F.3d 662 (9th Cir. 2017) .................................................................................... 9

22 Haywood v. Drown, 23 556 U.S. 729 (2009) ............................................................................................... 30

24 Heath v. Alabama, 474 U.S. 82 (1985) ................................................................................................. 32
25
Hirschkop v. Snead, 26 594 F.2d 356 (4th Cir. 1979) .................................................................................. 31

27 In re Nat’l Security Agency Telecomm. Records Litig., 28 671 F.3d 881 (9th Cir. 2011) ...................................................................... 24, 26, 28

Defs.’ Reply in Support of Cross-Motion for Summary v
Judgment
30

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1 Isau v. Smith, 511 F.3d 881 (9th Cir. 2007) .................................................................................... 5
2

3

J.W. Hampton, Jr. Co. v. United States, 276 U.S. 394 (1928) ............................................................................................... 24

4 Kucana v. Holder,
5 558 U.S. 233 (2010) ................................................................................................. 4

6 Leedom v. Kyne, 7 358 U.S. 184 (1958) ........................................................................................... 8, 11

8 Levin v. Commerce Energy, Inc., 9 560 U.S. 413 (2010) ................................................................................................ 29 10 Lindahl v. OPM,
470 U.S. 768 (1985) ......................................................................................... 11-12 11
Logan v. U.S. Bank Nat’l Ass’n, 12 722 F.3d 1163 (9th Cir. 2013) ................................................................................ 13
13 Lujan v. Defenders of Wildlife, 14 504 U.S. 555 (1992) ................................................................................................. 3

15 Maldonado v. Fasano, 16 67 F. Supp. 2d 1170 (S.D. Cal. 1999) ................................................................ 6, 28
17 Mistretta v. United States, 488 U.S. 361 (1989) ............................................................................................... 24
18 Moyle v. Dir., Office of Workers’ Compensation Programs,
19 147 F.3d 1116 (9th Cir. 1998) ................................................................................ 28
20 Munguia v. Frias, 21 No. 07-1016, 2009 WL 3157482 (S.D. Cal. Sept. 24, 2009) ................................. 29

22 New York v. United States, 23 505 U.S. 144 (1992) ............................................................................................... 33

24 Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660 (9th Cir. 1998) .................................................................................. 36
25
Osborn v. Bartos, 26 No. 08-2193, 2010 WL 3809847 (D. Ariz. Sept. 20, 2010) .................................. 18

27 O’Brien v. Welty, 28 818 F.3d 920 (9th Cir. 2016) .................................................................................. 31

Defs.’ Reply in Support of Cross-Motion for Summary vi
Judgment
30

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1 Pacific Mar. Ass’n v. NLRB, 827 F.3d 1203 (9th Cir. 2016) .................................................................... 12, 14, 18
2

3

Pinnacle Armor, Inc. v. United States, 648 F.3d 708 (9th Cir. 2011) .......................................................................... 4, 5, 11

4 Printz v. United States,
5 521 U.S. 898 (1997) ............................................................................................... 33

6 Ralpho v. Bell, 7 569 F.2d 607 (D.C. Cir. 1977) ................................................................................. 8

8 Ringgold-Lockhart v. Cnty. of Los Angeles, 9 761 F.3d 1057 (9th Cir. 2014) ................................................................................ 29 10 Rodrigues v. Donovan,
769 F.2d 1344 (9th Cir. 1985) ................................................................................ 10 11
Rodriguez v. Robbins, 12 No. 07-3239, 2012 WL 12953870 (C.D. Cal. May 3, 2012) ............................... 6-7
13 Roller v. Gunn, 14 107 F.3d 227 (4th Cir.1997) ................................................................................... 29

15 S. Cal. Edison Co. v. Lynch, 16 307 F.3d 794 (9th Cir. 2002) .................................................................................. 32
17 San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581 (9th Cir. 2014) ............................................................................ 19, 23
18 Sanchez v. Johnson,
19 416 F.3d 1051 (9th Cir. 2005) ................................................................................ 13
20 Save Our Heritage Org. v. Gonzales, 21 533 F. Supp. 2d 58 (D.D.C. 2008) ................................................. 14, 14-15, 15, 24

22 Sec'y of the Interior v. California, 23 464 U.S. 312 (1984) ............................................................................................... 36

24 Shelby County v. Holder, 133 S. Ct. 2612 (2013) ............................................................................... 33, 34, 35
25
Sierra Club v. Ashcroft, 26 No. 04-272, 2005 U.S. Dist. LEXIS 44244 (S.D. Cal. Dec. 13, 2005) .......... passim

27 Smith v. Fed. Reserve Bank of N.Y., 28 280 F. Supp. 2d 314 (S.D.N.Y. 2003) .................................................................... 28

Defs.’ Reply in Support of Cross-Motion for Summary vii
Judgment
30

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1 Spencer v. World Vision, Inc.,

633 F.3d 723 (9th Cir. 2011) .................................................................................... 6 2

3

Staacke v. U.S. Sec’y of Labor, 841 F.2d 278 (9th Cir. 1988) .................................................... 10, 11, 14, 18, 19, 23

4 Student Loan Fund of Idaho, Inc. v. U.S. Dep’t of Educ.,
5 272 F.3d 1155 (9th Cir. 2001) ................................................................................ 17

6 Switchmen’s Union v. Nat’l Mediation Bd., 7 320 U.S. 297 (1943) ............................................................................................ 9, 10

8 Tennessee v. Lane, 9 541 U.S. 509 (2004) ............................................................................................... 33 10 Texas Border Coal. v. Napolitano,
614 F. Supp. 2d 54, (D.D.C. 2009) ........................................................................ 23 11
Touby v. United States, 12 500 U.S. 160 (1991) ............................................................................................... 25
13 U.S. Postal Serv. v. Gregory, 14 534 U.S. 1 (2001) ................................................................................................... 19

15 United States v. Geiger, 16 263 F.3d 1034 (9th Cir. 2001) ................................................................................ 32
17 United States v. Jones, 231 F.3d 508 (9th Cir. 2000) .................................................................................. 32
18 United States v. Meek
19 s, 366 F.3d 705 (9th Cir. 2004) .............................................................................. 17
20 United States v. Moreno-Morillo, 21 334 F.3d 819 (9th Cir. 2003) ................................................................................ 5, 6

22 United States v. Spiegel, 23 995 F.2d 138 (9th Cir. 1993) .................................................................................. 12

24 Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001) ............................................................................................... 25
25
Wilbur v. Locke, 26 423 F.3d 1101 (9th Cir. 2005) ................................................................................ 29

27 Wilkinson v. Austin, 28 545 U.S. 209 (2005) ............................................................................................... 30

Defs.’ Reply in Support of Cross-Motion for Summary viii
Judgment
30

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1 Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015) ........................................................................................... 26
2

3 Constitutional Provisions
4 Art. I § 1 ........................................................................................................................ 24
5 Art. I § 2 ...................................................................................................................... 26
6 Art. I § 3 ...................................................................................................................... 26 7 Art. II § 3 ..................................................................................................................... 24
1st Amend ............................................................................................................. 29, 31 8
5th Amend ................................................................................................................... 30 9 10th Amend ........................................................................................................... 32, 33 10 14th Amend ................................................................................................................. 33
11 Statutes
12 5 U.S.C. § 701 ............................................................................................................. 19
13 5 U.S.C. § 8128(b) ...................................................................................................... 10 14 8 U.S.C. § 1154 ............................................................................................................. 9
15 8 U.S.C. § 1330 ........................................................................................................... 22
16 16 U.S.C. § 1446 ......................................................................................................... 36
17 33 U.S.C. § 2326 ......................................................................................................... 15 18 Pub. L. No. 104-208, Div. C, Title I § 102, 110 Stat. 3009-554 (Sept. 30, 1996) passim
Pub. L. No. 109-13, Div. B, Title I §102, 119 Stat. 231 (May 11, 2005) ..............17, 28 19
Pub. L. No. 109-367, § 3, 120 Stat. 2638 (Oct. 26, 2006) ...............................15, 16, 22 20 Pub. L. No. 110-161, Div. E, Title V § 564, 121 Stat. 2090 (Dec. 26, 2007) ..16, 18, 21 21 Cal. Civil Code § 3480 .................................................................................................. 3
22 Cal. Gov. Code. § 12606 ............................................................................................... 3
23 Cal. Gov. Code. § 12607 ............................................................................................... 3
24 Cal. Health & Safety Code § 25100 .............................................................................. 3 25 Cal. Public Resource Code § 40000 ............................................................................. 3
Cal. Water Code § 13000 .............................................................................................. 3 26

27 Regulations

28 82 Fed. Reg. 35984 (Aug. 2, 2017) ................................................................. 22, 26, 31

Defs.’ Reply in Support of Cross-Motion for Summary ix
Judgment
30

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1 82 Fed. Reg. 42829 (Sept. 12, 2017) .....................................................................22, 26

2 14 Cal. Code Regs. § 17380-17386 .............................................................................. 3

3 Legislative Materials
4 H.R. Rep. 104-828 (Sept. 24, 1996) (Conf. Rep.) ........................................................ 17
5 H.R. Rep. 109-72 (May 3, 2005) (Conf. Rep.) .........................................5, 7, 17, 19, 20 6 151 Cong. Rec. H553-559 (Feb. 10, 2005).....................................................................7
7 151 Cong. Rec. E247 (Feb. 15, 2005) ............................................................................ 7
8 152 Cong. Rec. S9870 (Sept. 21, 2006)........................................................................20
9 Walls & Waivers: Expedited Construction of the Southern Border Wall and Collateral Impacts to Communities and the Environment: Joint Oversight
10 Field Hearing Before Subcommittees to H. Comm. on Natural Resources, 11 110th Cong. (2008) .................................................................................................. 21

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
Defs.’ Reply in Support of Cross-Motion for Summary x
Judgment
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1

TABLE OF EXHIBITS

2

Congressional Documents (attached at ECF No. 18-2)

3

1. H.R. Rep. 104-828 (Sept. 24, 1996) (Conf. Rep.)

4

2. H.R. Rep. 109-72 (May 3, 2005) (Conf. Rep.)

5

3. H.R. 1268 (109th Cong.) (engrossed in House, Mar. 16, 2005)

6

4. 142 Cong. Rec. H11076 (Sept. 25, 1996)

7

5. 150 Cong. Rec. H8899 (Oct. 8, 2004)

6. 151 Cong. Rec. H453-471 (Feb. 9, 2005)

8

7. 151 Cong. Rec. H553-559 (Feb. 10, 2005)

9

8. 151 Cong. Rec. E243-47 (Feb. 15, 2005)

10

9. 152 Cong. Rec. S9870 (Sept. 21, 2006)

11

10. Walls & Waivers: Expedited Construction of the Southern Border Wall

12

and Collateral Impacts to Communities and the Environment: Joint

Oversight Field Hearing Before Subcommittees to H. Comm. on Natural

13

Resources, 110th Cong. (2008) (excerpts)

14

11. Cong. Research Serv., RL33659, Border Security: Barriers Along the

15

U.S. Int’l Border (Mar. 16, 2009)

16 Customs & Border Protection Documents (attached at ECF No. 18-2)

17

12. Solicitation No. HSBP1017R0022 (as amended, Apr. 1, 2017) (link)

18

(excerpts)

19

13. Solicitation No. HSBP1017R0023 (as amended, Apr. 1, 2017) (link)

(excerpts) 20

14. Memorandum, Construction and Evaluation of Border Wall Prototypes,

21

U.S. Border Patrol, San Diego Sector, California (Sept. 25, 2017)

22

15. Press Release, Construction Begin on Wall Prototypes (Sept. 26, 2017)

23

(link)

24

16. Press Release, CBP Awards Contract for “Other Materials” Border Wall Prototypes (Sept. 7, 2017) (link)

25

17. Press Release, CBP Awards Contracts for Border Wall Prototypes (Aug.

26

30, 2017) (link)

27

18. U.S. Border Patrol, Sector Profile – Fiscal Year 2016 (link)

28

19. CBP Finding of No Significant Impact for Infrastructure (Nov. 19, 2003)

Defs.’ Reply in Support of Cross-Motion for Summary xi
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1

Customs & Border Protection Documents (supplemental)

2

20. Press Release, CBP Completes Construction of Border Wall Prototypes

(Oct. 26, 2017) (link), ECF No. 35-4

3

21. CBP, Chula Vista Station (Mar. 11, 2014) (link), ECF No. 35-5

4

22. CBP, Brown Field Station (Mar. 11, 2014) (link), ECF No. 35-6

5

23. U.S. Border Patrol, Environmental Stewardship Plan for Nogales Fence

6

Replacement Project (Nov. 2011) (excerpt) (attached to this filing)

7

24. Letter to U.S. Fish & Wildlife Service (Jan. 18, 2018) (attached to this

filing)

8

25. Letter to California Department of Parks and Recreation (Jan. 18, 2018)

9

(attached to this filing)

10

26. Letter to Fort Yuma Quechan Indian Tribe (Jan. 18, 2018) (attached to

11

this filing)

12

27. Letter to City of Calexico (Jan. 18, 2018) (attached to this filing)

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
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1

INTRODUCTION

2

Plaintiffs are irreconcilably opposed to Congress’s decision to prioritize border

3 infrastructure construction, as expressed in the passage and amendment of § 102 of the

4 Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”).

5 Congress determined that expeditious completion of such construction is important

6 enough to outweigh compliance with other laws—including environmental laws and

7 others that can lead to protracted litigation. Thus, Plaintiffs’ goal in these

8 consolidated cases is to force the narrowest possible reading of this statute and to

9 thwart the construction of border infrastructure. The Court should reject their various

10 attempts to neuter § 102 and overturn Congress’s exercise of legislative judgment.

11

First, the Department of Homeland Security (“DHS”) has shown that Congress

12 withdrew this Court’s jurisdiction to consider non-constitutional claims “arising from

13 any action undertaken, or any decision made” pursuant to § 102’s waiver authority.

14 IIRIRA § 102(c)(2)(A). This bars not only Plaintiffs’ claims under the environmental

15 statutes, but also Plaintiffs’ efforts to press “arbitrary and capricious” challenges under

16 the Administrative Procedure Act (“APA”) for aspects of the waiver determinations.

17 It also is one of the exceptional circumstances in which Congress has barred review of

18 whether the agency action was within the scope of statutory authority. While courts

19 generally presume that Congress intends to permit such ultra vires review, here the

20 statutory text, context, and legislative history demand the conclusion that Congress

21 did not want agency action delayed by such legal challenges. Accordingly, it is for

22 Congress to police DHS’s exercise of this delegated authority, not the courts.

23

Second, even if ultra vires review were available—and it is not—the waiver

24 determinations must be upheld. Plaintiffs have fallen far short of their heavy burden

25 to establish that DHS has violated a clear statutory mandate or prohibition. Their lead

26 argument—that the only construction authority is found in § 102(b) and § 102(a)

27 confers no additional authority—was specifically rejected by another court and is not

28
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1 the most plausible reading of the statutory text and Congress’s intent. More

2 egregiously, Plaintiffs attempt to turn deadlines set by Congress in 2007 to ensure

3 swift completion of certain projects into a provision causing the expiration of all § 102

4 authority. This distortion cannot be reconciled with the text or Congress’s intent. Nor

5 have Plaintiffs established that any of the phrases they pluck from the statute

6 constitute clear mandates or prohibitions that DHS has violated. The Court should

7 decline Plaintiffs’ invitation to convert the extraordinarily limited ultra vires inquiry

8 into ordinary APA review.

9

Third, Plaintiffs have not established that any of the constitutional provisions on

10 which they rely prohibit Congress from delegating authority to waive other laws or

11 limiting judicial review of such waiver determinations. Many of Plaintiffs’ claims

12 have been repeatedly rejected by courts considering § 102, and the others are novel

13 applications of constitutional doctrine that can be quickly rejected. None raise

14 questions serious enough to justify application of the canon of constitutional

15 avoidance in construing § 102’s plain text.

16

Accordingly, Defendants are entitled to summary judgment, and Plaintiffs’

17 motions for summary judgment should be denied.

18

ARGUMENT

19 I. 20

CALIFORNIA HAS NOT CARRIED ITS BURDEN TO ESTABLISH STANDING

21

California has abandoned its claimed injury to its tourism industry, which, as

22 DHS explained is not traceable to the challenged agency actions. See Defs.’ Br. at 9;

23 Cal. Reply at 1-3. California also lacks standing to press claims regarding

24 infrastructure projects “along the entire 2000-mile southern border,” Cal. Reply at 3,

25 other than those specified in the 2017 waiver determinations. California has not

26 established standing for projects outside its borders, nor has it established that any

27 other projects within the state are sufficiently imminent to cause cognizable injury.

28 See Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008); see infra, Arg. § V.

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1

As for its “sovereign interests,” California has not carried its burden to establish

2 that the waivers impacted state laws which would actually have been enforceable in

3 connection with these specific projects—other than state laws involving permitting

4 pursuant to the federal Coastal Zone Management Act (“CZMA”). See Cal. Compl.

5 ¶¶ 38-39, 112-115 (claiming violation of state laws related to the CZMA). Its reply

6 brief merely string-cites eight portions of the state code or regulations without 7 explaining how these requirements would apply to the challenged projects.1

8 Accordingly, California has failed to establish each of essential elements of standing. 9 See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).2 Its string-cite does

10 not pass muster for an issue that is Plaintiffs’ burden to establish. See, e.g., Boyd v.

11 United States, No. 15-3494, 2017 WL 1133512, at *3 (N.D. Cal. Mar. 27, 2017);

12 Barnum Timber Co. v. EPA, No. 08-1988, 2008 WL 4447690, at *5 (N.D. Cal. Sept.

13

14 1 The citations are far from self-evident. California does not explain how its

15 provisions allowing its Attorney General to bring or intervene in legal actions have

been preempted. See Cal. Gov. Code. §§ 12606, 12607. Similarly, it does not 16 establish how the state definition of “public nuisance,” Cal. Civil Code § 3480, could

17 be enforceable against a federal construction project on federal land. Such state laws

18

provide no jurisdiction or enforcement power against the United States. Moreover, California Public Resource Code § 40000 and California Health and Safety Code §

19 25100 appear to implement provisions of two federal statutes—the Comprehensive

20

Environmental Response, Compensation, and Liability Act (“CERCLA”) and Resource Conservation and Recovery Act (“RCRA”)—but it is not at all clear that the

21 projects at issue here will involve hazardous waste and certainly do not involve

22

Superfund sites. California cites generally to “Cal. Water Code § 13000 et seq.,” which appears to include provisions implementing the federal Clean Water Act, but

23 does not explain what provisions could be relevant here. And the only regulation it

24

cites, 14 Cal. Code Regs. §§ 17380-17386, is an article that expressly does not apply to entities that “generate . . . debris . . . at the site of the construction work” or import

25 debris to “be used in the construction work.” See id. § 13780(g) (further explaining

26

that “public works agencies constructing roads . . . are not subject to these regulations during the course of the construction work”).

27 2 Hereinafter, internal quotation marks, alterations, and citations are omitted from

28 quotations unless otherwise noted.

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1 29, 2008). Thus, California has failed to establish standing for any claim dependent

2 on a showing that state laws other than those incident to the CZMA could be

3 implicated by the projects but have been rendered unenforceable.

4 II. THE COURT LACKS JURISDICTION TO CONSIDER PLAINTIFFS’

NON-CONSTITUTIONAL CLAIMS REGARDING THE WAIVER

5

DECISIONS

6

DHS has established that Congress expressly withdrew jurisdiction for courts to

7 consider non-constitutional claims regarding the waiver determinations and

8 construction conducted pursuant to those determinations. See Defs.’ Br. at 10-23.

9 Congress crafted language designed to overcome the “strong presumption that

10 Congress intends judicial review of administrative action,” Bowen v. Michigan Acad.

11 of Family Physicians, 476 U.S. 667, 670 (1986). As the Supreme Court has

12 explained, this presumption is merely an “interpretive guide” that is “dislodge[d]”

13 when it is clear that Congress intended to preclude judicial review. Kucana v. Holder,

14 558 U.S. 233, 251 (2010); see also Pinnacle Armor, Inc. v. United States, 648 F.3d

15 708, 719 (9th Cir. 2011) (stating that presumption of judicial review for administrative

16 action “is overcome” when “Congress expressly bars review by statute”). And

17 Congress has overcome that presumption here by providing:

18

The district courts of the United States shall have exclusive jurisdiction

19

to hear all causes or claims arising from any action undertaken, or any

decision made, by the Secretary of Homeland Security pursuant to

20

paragraph (1). A cause of action or claim may only be brought alleging a

21

violation of the Constitution of the United States. The court shall not

have jurisdiction to hear any claim not specified in this subparagraph. 22

IIRIRA, Pub. L. No. 104-208, Div. C, Title I § 102(c)(2)(A), 110 Stat. 3009-554 23

(Sept. 30, 1996), as amended (codified at 8 U.S.C. § 1103 note). 24

As previously noted, this statutory language is emphatic and comprehensive. It 25

expansively encompasses not only claims challenging “any [waiver] decision made” 26

by the Secretary but also “any action undertaken” pursuant to that determination. Id. 27

It makes district court jurisdiction “exclusive,” id., thereby preempting any concurrent 28

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1 state court jurisdiction. And it narrows district court jurisdiction by expressly

2 identifying the sort of suits that may be brought: “only . . . alleging a violation of the

3 Constitution,” and expressly removing jurisdiction over “any claim not specified in

4 this subparagraph.” Id. As explained in the accompanying conference report, this

5 provision was intended “to ensure that judicial review of actions or decisions of the

6 Secretary not delay the expeditious construction of border security infrastructure,

7 thereby defeating the purpose of the Secretary’s waiver.” See Defs.’ Ex. 2, H.R. Rep.

8 No. 109-72 at 172 (Conf. Rep.).

9

Congress has plainly exercised its authority “to define the jurisdiction of the

10 lower federal courts,” Duldulao v. INS, 90 F.3d 396, 400 (9th Cir. 1996), and “make

11 exceptions to the historic practice whereby courts review agency action.” Bowen, 476

12 U.S. at 672-73; see also Estep v. United States, 327 U.S. 114, 120 (1946). A court in

13 this district found § 102(c) straightforward, declaring that it “restricted judicial review

14 of any claims to constitutional claims.” See Sierra Club v. Ashcroft, No. 04-272, 2005

15 U.S. Dist. LEXIS 44244, at *28 (S.D. Cal. Dec. 13, 2005). Plaintiffs cannot dispute

16 this. Instead, they seek to evade it by claiming that the jurisdictional bar does not

17 apply to the findings included in the waiver determinations that relate to § 102(a) or

18 (b) and that the jurisdictional bar is not express enough to preclude ultra vires review.

19 Neither argument can defeat Congress’s unambiguous limitation on jurisdiction.3

20

21

22 3 Defendants agree that the Court has “jurisdiction to determine jurisdiction,” Isau v.
23 Smith, 511 F.3d 881, 891 (9th Cir. 2007), which makes it appropriate for the Court to 24 review the parties’ arguments for and against jurisdiction here. But this authority
cannot, as California would have it, serve as an independent basis to determine merits 25 questions such as “whether Sections 102(a) and (b) authorize the San Diego and 26 Calexico Projects.” Cal. Reply at 4-5. These are not “jurisdictional facts” necessary
to assess the Court’s jurisdiction under § 102(c)(1)(A). Isau, 511 F.3d at 891; see also 27 United States v. Moreno-Morillo, 334 F.3d 819, 830 (9th Cir. 2003) (limiting inquiry 28 to “necessary precursor to the district court’s determination regarding ... jurisdiction”).

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1

A. Plaintiffs Cannot Carve Up Each Waiver Determination into

Multiple Distinct Decisions Subject to APA Review 2

3

Plaintiffs claim that they should be free to challenge the Secretary’s findings

4 regarding the need to install infrastructure on the notion that this is a “cause[] of

action[] unrelated to waiver decisions.” Id. at 9. This argument fails for two reasons. 5

6 First, Plaintiffs’ efforts to cabin the jurisdictional bar so narrowly leaves them paying

7 only lip service to the statutory text. After all, even in “attempt[ing] to read the

jurisdiction stripping provisions . . . narrowly, [a court] cannot escape the principle 8

9 that ‘courts must presume that a legislature says in a statute what it means and means

10 in a statute what it says.’” Maldonado v. Fasano, 67 F. Supp. 2d 1170, 1182 n.13

(S.D. Cal. 1999) (quoting Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54 11

12 (1992)). And second, Plaintiffs disregard the fact that the findings they wish to

13 challenge are integral to the waiver determination itself.

Plaintiffs’ argument rests on § 102(c)(2)(A)’s use of the phrase “pursuant to 14

15 paragraph (1)” to cross-reference § 102(c)(1). See Coal. Reply at 8; Cal. Reply at 4;

Ctr. Reply at 2. They claim that this phrase narrowly limits the jurisdictional bar to 16

the selection of what legal requirements to waive. But their reading does not give 17

18 effect to the full text of the provision. See Spencer v. World Vision, Inc., 633 F.3d

723, 743 (9th Cir. 2011) (“It is an elementary rule of construction that effect must be 19

given, if possible, to every word, clause and sentence of a statute.”). Even if the 20

21 phrase “decision made . . . pursuant to paragraph (1)” in § 102(c)(2)(A) could

plausibly refer to the waiver determination in isolation, cf. id. § 102(c)(1) (“[a]ny such 22

decision”), the text is more expansive in two ways. First, the text also includes “any 23

24 action undertaken . . . pursuant to paragraph (1),” which encompasses more than the

waiver determination itself. Second, Congress expansively limited jurisdiction for “all 25

causes or claims arising from” such actions or decisions, not merely challenges to an 26

27 action or decision in isolation. Plaintiffs’ reading must be rejected because it would

make both “arising from” and “action undertaken” superfluous. See Rodriguez v. 28

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1 Robbins, No. 07-3239, 2012 WL 12953870, at *3 (C.D. Cal. May 3, 2012) (rejecting

2 reading that would make “arising from the proceedings of which the . . . application is

3 a part” redundant with “arising from the adjudication of the . . . application”); cf.

4 Harland Clarke Holding Corp. v. Milken, 646 F. App’x 223, 227 (3d Cir. 2016)

5 (interpreting contract so that separate “arising under” clause was not “superfluous”).

6

Plaintiffs’ reading is also implausible because it would frustrate Congress’

7 purpose for the jurisdictional limitation and waiver provision—to prevent litigation

8 delays. See H.R. Rep. No. 109-72 at 172 (Conf. Rep.) (explaining congressional

9 intent that “judicial review of actions or decisions of the Secretary not delay the

10 expeditious construction of border security infrastructure”).4 Plaintiffs’ reading would

11 make every waiver determination subject to ordinary APA review for whether the

12 project was really “necessary” in the first place. See Coal. Reply at 11-12 (arguing

13 that agency’s decision must justify “that these border infrastructure projects were

14 ‘necessary,’” that they were in areas of high illegal entry, and that they were in the

15 vicinity of the border); Cal. Reply at 12 (demanding “meaningful review of the

16 Secretary’s actions” and “findings”). This would cause the very litigation delays that

17 § 102(c)(2)(A) targeted.

18

Here, Plaintiffs cannot establish that any of their legal challenges “arise” from

19 something other than the decisions made and actions taken pursuant to § 102(c)(1)’s

20 waiver authority. The Secretary issued a single “notice of determination” for each of

21 the two waiver decisions, including findings relevant to the statutory criteria that the

22

23 4 Plaintiffs cannot distinguish this clear statement of Congressional intent. The same 24 scope is reflected in the statements of individual legislators. See Defs.’ Ex. 7, 151
Cong. Rec. H557 (Feb. 10, 2005) (statement of Congresswoman Davis) (objecting to 25 provision because it “bars judicial review of any claim arising from the construction 26 of barriers and roads at borders”); Defs.’ Ex. 8, 151 Cong. Rec. E247 (statement of
Congressman James Langevin) (“This overly broad provision would give 27 unprecedented power to the Secretary to undertake large construction projects without 28 any accountability or judicial review.”).

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1 waiver be “necessary to ensure expeditious construction of the barriers and roads

2 under this section.” IIRIRA § 102(c)(1). Plaintiffs rely on this notice as the “final

3 agency action” purportedly subject to APA review, see Coal. Reply at 7, despite the

4 fact that this is the very determination and action for which Congress strictly limited

5 judicial review. But Plaintiffs have not, and cannot, show that findings necessary for

6 issuance of a waiver—which were included in the waiver determination itself—can be

7 considered separate final agency actions. And even if they could force such a

8 distinction, they would still not evade Congress’s clear intent to encompass all

9 “actions undertaken” pursuant to the waiver authority. In sum, the APA does not give

10 the Court jurisdiction that Congress has expressly withdrawn.

11

B. Congress Barred Ultra Vires Challenges Along with Other Non-

Constitutional Claims 12

13

DHS has shown that ultra vires review is not an inherent judicial authority, but

instead an application of the same rebuttable presumption of congressional intent to 14

15 permit judicial review discussed above. See Defs.’ Br. at 17-18 & n.10. As the

Supreme Court explained, Leedom v. Kyne, 358 U.S. 184 (1958), and other ultra vires 16

cases merely apply “the familiar proposition that only upon a showing of clear and 17

18 convincing evidence of a contrary legislative intent should the courts restrict access to

judicial review.” Bd. of Governors of Fed. Reserve Sys. v. MCorp Fin., Inc., 502 U.S. 19

32, 44 (1991). Kyne and its progeny do not authorize judicial review of every “agency 20

21 action that is alleged to have exceeded the agency’s statutory authority.” Id. at 43.

Accordingly, Plaintiffs err in claiming that judicial review of whether an agency 22

exceeded its statutory authority must always be available. Coal. Reply at 1-2 & n.1; 23

24 Cal. Reply at 5. As the D.C. Circuit observed, nothing “prevent[s] [Congress] from

shielding even the most patent deviation from the statutory scheme from judicial 25

redress where the Constitution is in no wise implicated.” Ralpho v. Bell, 569 F.2d 26

27 607, 622 n.101 (D.C. Cir. 1977) (citing Switchmen’s Union v. Nat’l Mediation Bd.,

320 U.S. 297, 301 (1943)). See also Estep, 327 U.S. at 120 (“[E]xcept when the 28

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1 Constitution requires it, judicial review of administrative action may be granted or

2 withheld as Congress chooses.”). In Switchmen’s Union, the Supreme Court found

3 that it lacked authority to consider an ultra vires claim because the Railway Labor Act

4 impliedly precluded judicial review because congressional “intent seems plain” that

5 “[t]here was to be no dragging of the controversy into other tribunals of law.” See

6 Switchmen’s Union, 320 U.S. at 305; id. at 301 (“All constitutional questions aside, it

7 is for Congress to determine how the rights which it creates will be enforced.”).

8

Ninth Circuit caselaw is consistent with these principles. For example, this

9 month, the Ninth Circuit concluded it lacked jurisdiction to review an ultra vires

10 challenge because 8 U.S.C. § 1154(a)(1)(A)(viii)(I) left the decision to the Secretary’s

11 “sole and unreviewable discretion.” Gebhardt v. Nielsen, _ F.3d _, 2018 WL 326238,

12 at *5 (9th Cir. Jan. 9, 2018). And in Hawaii v. Trump, 878 F.3d 662, 682 (9th Cir.

13 2017), the Ninth Circuit relied on Chamber of Commerce v. Reich, 74 F.2d 1322,

14 1327-28 (D.C. Cir. 1996), for the conclusion—undisputed here—that ultra vires

15 review is not dependent on availability of the APA.5 In the passage cited favorably by

16 Hawaii, the D.C. Circuit observed that while “courts are normally available to

17 reestablish the limits on [executive] authority” when an ultra vires action occurs, “if

18 Congress precluded [such] non-statutory judicial review . . . that would be another

19 matter.” 74 F.2d at 1328. Thus, the Hawaii decision is entirely consistent with the 20 conclusion that Congress can bar ultra vires review if it chooses.6

21

22 5 Hawaii described ultra vires review as a “cause of action[] which exists outside of the APA.” 878 F.3d at 682. Reich elaborates that the “enactment of the APA . . . does
23 not repeal the review of ultra vires actions recognized long before.” 74 F.2d at 1328.

24 6 California badly mischaracterizes Hawaii. That case did not conclude “that courts

25 ‘necessarily’ retain jurisdiction to review whether executive actions are ‘ultra vires.’” Cal. Reply at 5 (quoting three words from Hawaii, 878 F.3d at 679). Instead, the
26 Ninth Circuit simply stated that it was implicit in a prior Supreme Court case, that

27 “[b]y reaching the merits” the Supreme Court “necessarily first decided that the Court had jurisdiction.” 878 F.3d at 679. Similarly, California omits key language that
28 distorts another quotation: “It is the duty of the courts, in cases properly before them,

Defs.’ Reply in Support of Cross-Motion for Summary 9

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1

Plaintiffs gain no traction by pointing to a pair of Ninth Circuit cases

2 characterizing 5 U.S.C. § 8128(b) as containing an “absolute jurisdictional bar” but

3 nevertheless subject to ultra vires review. See Coal. Reply at 2 (quoting Markham v.

4 United States, 434 F.3d 1185, 1187 (9th Cir. 2006); Staacke v. U.S. Sec’y of Labor,

5 841 F.2d 278, 281 (9th Cir. 1988)). These cases, like all the others, turn on the

6 question of what Congress intended to bar. The “absolute” bar to which these cases

7 refer is a “finality provision” prohibiting judicial review of the merits of an agency

8 decision “allowing or denying a payment under this subchapter.” Rodrigues v.

9 Donovan, 769 F.2d 1344, 1347-48 (9th Cir. 1985). Both cases cited by Plaintiffs rely

10 on Rodrigues which makes clear that the inquiry is still one of “congressional intent.”

11 Id. at 1347. The Ninth Circuit simply concluded that Congress did not intend this

12 absolute bar on review of the merits to prohibit review of constitutional or ultra vires

13 claims. See id. at 1347-48 (reviewing constitutional claims because “Congress’s

14 intent was that the courts not be burdened by a flood of small claims challenging the

15 merits of compensation decisions . . . and that the Secretary should be left free to

16 make the policy choices associated with disability decisions”); Staacke, 841 F.2d at

17 281 (extending Rodrigues to ultra vires claims).

18

Congress is also free to bar ultra vires claims even if there is no other avenue

19 for judicial review. MCorp Financial makes clear that either of two factors prohibit

20 judicial review under the Kyne exception: 1) if the absence of immediate judicial

21 review would not “wholly deprive the [plaintiff] of a meaningful and adequate means

22 of vindicating its statutory rights,” or 2) if “Congress has spoken clearly and directly”

23 to preclude “review of the contested determination.” 502 U.S. at 43-44. Plaintiffs

24 argue that only the first factor matters. They claim that even if Congress clearly

25

26 to say where those statutory and constitutional boundaries lie.” 878 F.3d at 679 (emphasis added); cf. Cal. Reply at 5 (omitting the emphasized clause). The full
27 quotation makes clear that it does not address the issue here—whether Congress 28 withdrew the Court’s jurisdiction to discern and enforce the statutory boundaries.

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1 precluded review, ultra vires review must be employed if there is no other means for

2 judicial review. See Ctr. Reply at 4-5; Coal. Reply at 2-3, Cal. Reply at 5. This view

3 inherently conflicts with Kyne’s logic of congressional intent, which depends on the

4 observation that courts “cannot lightly infer that Congress does not intend judicial

5 protection of rights it confers against agency action taken in excess of delegated

6 powers.” 358 U.S. at 190 (emphasis added). And MCorp Financial treated each

7 factor as an independently “critical” distinction precluding review. See 502 U.S. at

8 43; see id. at 44 (“[T]he statute provides us with clear and convincing evidence that

9 Congress intended to deny the District Court jurisdiction to review and enjoin the

10 [challenged agency action].”).7 The Ninth Circuit has recognized as much. See, e.g.,

11 Pinnacle Armor, 648 F.3d at 719 (relying on MCorp Financial to conclude that the

12 presumption of judicial review for administrative action “is overcome” when

13 “Congress expressly bars review by statute,” without reference to other avenues for

14 judicial review). Nor is such a reading necessary as a matter of constitutional

15 avoidance. See infra, Arg. § IV (showing that Plaintiffs’ constitutional arguments that

16 judicial review is essential are meritless).

17

In § 102(c)(2)(A), Congress has adopted language radically different from the

18 finality provisions common in other statutes. In expressly stating “[t]he court shall

19 not have jurisdiction to hear any claim not specified in this subparagraph,” Congress

20 made clear that its purpose was broader than banning judicial review of the merits of

21

22 7 Plaintiffs misuse the Supreme Court’s observation that the “clarity of the
23 congressional preclusion of review” factor is “related” to the vindication factor. This 24 observation does not mean that the preclusion factor is “inextricably . . . bound up
with” the vindication factor. Ctr. Reply at 5. The Supreme Court’s discussion of both 25 factors does not make either one irrelevant standing alone. Instead, it suggest that 26 either “critical” factor can be fatal to judicial review under the “narrow window”
recognized by Kyne. See Staacke, 841 F.2d at 281. And, by concluding with an 27 emphasis on “clear and convincing evidence” of Congress’s intent, 502 U.S. at 44,
28 MCorp Financial suggests that the second factor may be more dispositive.

Defs.’ Reply in Support of Cross-Motion for Summary 11
Judgment
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1 the waiver determination.8 Cf. Lindahl v. OPM, 470 U.S. 768, 779-80 (1985)

2 (“[W]hen Congress intends to bar judicial review altogether, it typically employs

3 language far more unambiguous and comprehensive than” 5 U.S.C. § 8347(c)’s

4 provision that “decisions concerning these matters are final and conclusive and are not

5 subject to review”). In permitting only constitutional claims to proceed, Congress was

6 preempting all other sources of litigation delay. Cf. United States v. Spiegel, 995 F.2d

7 138, 140 (9th Cir. 1993) (interpreting statute at issue in MCorp Financial to “leave[]

8 no room to doubt that Congress provided only one avenue for challenging” covered

9 agency action). It is difficult to imagine language more tailored to prohibiting ultra

10 vires review. Congress’s choice must be respected. “Federal courts are not, after all,

11 superlegislatures entitled to invoke a generalized presumption to trump an express

12 ‘hands off’ direction from Congress.” Am. Soc’y of Anesthesiologists v. Shalala, 90 F.

13 Supp. 2d 973, 975 (N.D. Ill. 2000), aff’d, 279 F.3d 447 (7th Cir. 2002).

14 III. TO THE EXTENT THE COURT CONDUCTS ULTRA VIRES REVIEW,

PLAINTIFFS HAVE FAILED TO MAKE THE “TWO-PART”

15

SHOWING REQUIRED IN THIS CIRCUIT

16

Even if Congress’s intent to prohibit ultra vires review was unconvincing,

17 Plaintiffs have not established that they satisfy Kyne’s “narrow exception” by making

18 the “two-part showing” required in this Circuit: (1) that the challenged action

19 “contravene[s] clear and mandatory statutory language” and (2) that “absent district

20 court jurisdiction, [plaintiff would] be wholly deprived of a meaningful and adequate

21 means of vindicating its statutory rights.” Pacific Mar. Ass’n v. NLRB, 827 F.3d

22 1203, 1208 (9th Cir. 2016). Plaintiffs’ failure to establish either of these prongs is

23 fatal to their attempt to invoke ultra vires review.

24

25

26 8 Plaintiffs err in suggesting that finality provisions “are more preclusive than § 102.” Ctr. Reply at 7. As discussed above, a finality provision’s absoluteness has often been
27 found to shield the merits of a decision from review. Here, by contrast, Congress
28 expressly barred any form of jurisdiction except the review of constitutional claims.

Defs.’ Reply in Support of Cross-Motion for Summary 12
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1

A. Plaintiffs Have Not Established That They Have Statutory Rights to

Vindicate Through Litigation 2

3

DHS has shown that courts have emphasized that nonstatutory ultra vires

4 review is appropriate only as a last resort to protect statutory rights. See Defs.’ Br. at

23-25; see, e.g., MCorp Fin., 502 U.S. at 43 (explaining that the fact that the plaintiff 5

6 would have been “wholly deprive[d] . . . of a . . . means of vindicating its statutory

7 rights” was “central to our decision in Kyne” (emphasis added)). Accordingly,

Plaintiffs cannot merely identify a “statutory obligation” for the agency, but instead 8

9 must identify a “statutory right” by which Plaintiffs are entitled to vindication. See

10 Cal. Sportfishing Prot. Alliance v. U.S. Bureau of Reclamation, No. 15-912, 2015 WL

6167521, at *11 & n.8 (E.D. Cal. Oct. 20, 2015). Plaintiffs make no attempt to 11

12 establish that their ultra vires claims are tied to a statutory right providing individual

13 benefits. See Cal. Reply at 5 n.4 (merely expressing interest in “prevent[ing] the

Secretary from taking unchecked actions that exceed statutory authority”). Nor could 14

15 they, because the statutory language they seek to enforce is general and not the sort of

language creating statutory rights. See, e.g., Logan v. U.S. Bank Nat’l Ass’n, 722 F.3d 16

1163, 1171 (9th Cir. 2013); Sanchez v. Johnson, 416 F.3d 1051, 1057 (9th Cir. 2005). 17

18 Plaintiffs do not seek to vindicate their own statutory rights but instead pursue their

abstract interests in enforcing their own interpretation of the statute. Accordingly, it 19

would be an unwarranted extension of ultra vires review to apply it to the 20

circumstances here.9 21

22

23 9 California appears to assert that it need not respond to this claim because DHS 24 “conceded” that the prong is not in dispute. See Cal. Reply at 5 n.4. This is incorrect
for two reasons. First, for DHS to make a more limited argument as to one plaintiff 25 does not concede the issue as to another plaintiff in a separate cause of action.
26 Second, the passage California cites focused on the judicial review aspect of the prong, and said nothing about the statutory rights aspect of the prong. See Defs.’ Br.
27 at 16 n.10. DHS has therefore not contradicted its prior observation, but merely
28 developed another aspect of the prong in light of the California Sportfishing decision.

Defs.’ Reply in Support of Cross-Motion for Summary 13
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1

B. Plaintiffs Have Not Established that the Secretary Violated Any

Clear Command in the Statute

2

3

Alternatively, under the extraordinarily deferential ultra vires review standard,

4 the Court must conclude that the Secretary did not exceed his statutory authority. As

the Ninth Circuit has explained: 5

Our task is limited to determining whether the statute in question

6

contains a clear command that the Secretary has transgressed. Where . . .

7

the statute is capable of two plausible interpretations, the Secretary’s

decision to adopt one interpretation over the other cannot constitute a

8

violation of a clear statutory mandate.

9 Staacke, 841 F.2d at 282; see also Pacific Mar. Ass’n, 827 F.3d at 1208 (agency

10 action must “contravene clear and mandatory statutory language”).10 None of

11 Plaintiffs’ arguments render the Secretary’s interpretation of § 102 implausible.

12 Accordingly, their ultra vires claims must be denied.

13

1. Section 102(a) plausibly states a general mandate that can be

14

applied apart from the specific Congressional priorities

identified in § 102(b)

15

DHS has shown that § 102(a) provides a general mandate calling for the 16

Secretary to “take such actions as may be necessary to install additional physical 17

barriers and roads” along the border. Defs.’ Br. at 26-35. The government has 18

consistently taken the position that “section 102(a) confers authority on the Secretary 19

to construct barriers in the vicinity of the U.S.-Mexico border, including the San 20

Diego Barrier, that are not explicitly mandated by section 102(b).” Save Our Heritage 21

Org. v. Gonzales, 533 F. Supp. 2d 58, 60 (D.D.C. 2008) (characterizing the 22

government’s position); see also Defs.’ Mot. to Dismiss at 6-7, ECF No. 36, Sierra 23

Club, et al. v. Ashcroft, et al., No. 04-0272 (S.D. Cal. Nov. 11, 2005) (arguing that 24

§ 102(b)(1) simply provided “a required method of achieving [§ 102(a)’s] important 25

26 10 The Center cannot avoid this standard by citing a standard for determining whether
27 the court had jurisdiction to review an ultra vires claim. See Ctr. Reply at 8. Once a
28 court finds jurisdiction, it looks for a “clear command.” Staacke, 841 F.2d at 282.

Defs.’ Reply in Support of Cross-Motion for Summary 14
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1 goal in one geographic area”). And the only court to address the issue agreed. See

2 Save Our Heritage, 533 F. Supp. 2d at 61 (holding “that section 102(a), on its face,

3 authorizes construction of barriers such as the San Diego Barrier in areas that the

4 Secretary determines are areas of high illegal entry into the United States”).

5

Plaintiffs’ restrictive view that § 102 only empowers Congress to construct the

6 projects selected by Congress in § 102(b) would produce odd results. As noted in

7 Save Our Heritage, it would mean that when Congress struck language about

8 construction near San Diego from § 102(b)(1) and replaced it with language regarding

9 five other locations, see Defs.’ Br. at 3 (discussing Secure Fence Act), Congress was

10 foreclosing further reliance on § 102 for construction near San Diego (which remained

11 ongoing until at least 2007). See Save Our Heritage, 533 F. Supp. 2d at 60 (rejecting

12 argument that 2006 amendment made “construction of the San Diego Barrier . . . no

13 longer authorized by statute”). But instead, Congress’s amendment of § 102(b)

14 merely sixteen months after it vigorously pressed for completion of the San Diego

15 Barrier in 2005 demonstrates that § 102(b) is a repository for congressional priorities

16 rather than the exclusive list of projects that may be constructed under § 102.11 Cf.

17 Save Our Heritage, 533 F. Supp. 2d at 61 (refusing to “interpret the 2006 amendment

18 to section 102(b) as narrowing the Secretary’s authority” because “[t]he statute’s

19 explicit language does not support such an interpretation.”).

20

Indeed, Plaintiffs offer no response to DHS’s demonstration that Congress has

21 routinely used the phrase “in carrying out” to bridge between a general mandate and

22 specific guidance. See Defs.’ Br. at 29 & n.20; see, e.g., 33 U.S.C. § 2326(a)(1)(A),

23 (f) (giving Secretary of the Interior general responsibility to “develop . . . regional

24 sediment management plans” and specifying that “[i]n carrying out this section, the

25

26 11 Plaintiffs suggest that Save Our Heritage is somehow “distinguishable” because Congress had previously “primarily focused on the completion” of the San Diego
27 infrastructure. Ctr. Reply at 10 n.7. But Plaintiffs’ theory demands that the current
28 text of § 102(b) controls, not prior versions.

Defs.’ Reply in Support of Cross-Motion for Summary 15
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1 Secretary shall give priority to [projects] in the vicinity of [eleven specific

2 locations]”). Nor do Plaintiffs meaningfully respond to DHS’s three key reasons

3 Plaintiffs’ interpretation should be rejected:

4

1) specific requirements cannot generally be understood to prohibit all

other applications of the general authority,12 see Barnhart v. Peabody

5

Coal Co., 537 U.S. 149, 168 (2003); FTC v. Tarriff, 584 F.3d 1088, 1091

6

(D.C. Cir. 2009); Otsuka Pharm. Co. v. Burwell, No. 15-852, 2015 WL

7

1962240, at *7 (D. Md. Apr. 29, 2015); Sidney Coal Co. v. SSA, 427 F.3d 336, 348 (6th Cir. 2005); Save Our Heritage Org., 533 F. Supp. 2d at 61;

8

(2) the specific terms of the IIRIRA as originally enacted cut sharply

9

against Plaintiffs’ reading because the broad mandate would be confusing

10

and superfluous if Congress had already identified the only location for construction,13 see Hooks v. Ktsap Tenant Support Servs., Inc., 816 F.3d

11

550, 560 (9th Cir. 2016); Planned Parenthood of Idaho, Inc. v. Wasden,

12

376 F.3d 908, 929 (9th Cir. 2004); Pacific Mut. Life Ins. Co. v. Am. Guaranty Life Ins. Co., 722 F.2d 1498, 1500 (9th Cir. 1984), overruled

13

on other grounds by In re McLinn, 739 F.2d 1395 (9th Cir. 1984), and

14

(3) the changes to § 102(b) made in 2006 and 2007 further demonstrate

15

that this subsection merely identifies reflects Congress’ shifting priorities. See Defs.’ Br. at 32-33.

16

Plaintiffs cannot overcome these textual and contextual reasons based on the 17

legislative history or the Sierra Club decision. While it is undisputed that completion 18

19

20

12 Plaintiffs’ observation that “[j]udicial decisions addressing eminent domain disputes consistently cite[d] to § 102(b),” Ctr. Reply at 11, is not in tension with DHS’s

21 position because those land acquisitions were implementing Congress’s priority

22

projects identified in § 102(b). It is logical to cite the most specific authority for the agency’s actions, without implying that there is no other authority available.

23 13 The Center suggests that Bear Valley Mut. Water Co. v. Jewell, 790 F.3d 977 (9th

24 Cir. 2015) demonstrates that Plaintiffs’ reading would not render § 102(a) surplusage.

That case rejected an attempt to enforce “Congressional findings and declarations of 25 purposes and policy” on the ground that the provision was a “non-operative statement

26 of policy.” 790 F.3d at 986-87. This case does not help Plaintiffs because on the one

hand, they rely on § 102(a) as more than an inoperative policy statement, and on the 27 other hand, they cannot explain why the section’s substantive conditions were created

28 in 1996 when there was only one project listed in § 102(b).

Defs.’ Reply in Support of Cross-Motion for Summary 16
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1 of the San Diego project was the catalyst for passage of § 102 and the 2005

2 amendment, DHS has shown that the legislative history establishes that the scope of

3 the provisions was obviously broader and was not limited to that one project. See

4 Defs.’ Ex. 1, H.R. Rep. 104-828 at 200 (Sept. 24, 1996) (Conf. Rep.) (broadly

5 describing § 102 as “requir[ing] the Attorney General to install additional fences and

6 roads to deter illegal immigration” and separately characterizing the construction

7 Congress had called for “[i]n the San Diego Sector”); H.R. Rep. 109-72 at 170 (May

8 3, 2005) (Conf. Rep.) (broadly describing § 102 as “provid[ing] for construction and

9 strengthening of barriers along U.S. land borders”); see also id. at 171 (describing the

10 waiver authority as “ensur[ing] expeditious construction of barriers and roads” and

11 “the expeditious construction of security infrastructure along the border”); Defs.’ Br.

12 at 34-35 & n.28 (quoting the uncontradicted, repeated observations in Congress that

13 the text of the waiver provision extended beyond the San Diego project).14

14

DHS has also explained that the Sierra Club decision should not be read to

15 adopt Plaintiffs’ reading of the interaction between § 102(a) and (b). See Defs.’ Br. at

16 30-31 n.21. Sierra Club’s observations about the “barriers and roads” to which §

17 102(c) was being applied are best understood as references to the fact that the

18 delegated authority was only being used for a construction project that Congress itself

19 had specified. See 2005 U.S. Dist. LEXIS 44244, at *8-9 (emphasizing Congress’s

20 selection of the 14-mile location for construction); id. at *19 (“[T]he ‘barriers and

21 roads’ alluded to are the same in both articulations of Section 102(c): the Triple Fence

22

23 14 At most, Plaintiffs could claim that the legislative history is indeterminate based on 24 the perceived tension between the portions of that history cited by DHS and Plaintiffs’
citation of portions of the legislative history in which proponents of the legislation 25 exclusively discussed the San Diego catalyst. See, e.g., Ctr. Reply at 13. But the
26 evidence is not contradictory, and regardless an indeterminate legislative history cannot be a basis for overruling a reasonable interpretation of the statutory text. See
27 United States v. Meeks, 366 F.3d 705, 720 (9th Cir. 2004); Student Loan Fund of 28 Idaho, Inc. v. U.S. Dep’t of Educ., 272 F.3d 1155, 1165 (9th Cir. 2001).

Defs.’ Reply in Support of Cross-Motion for Summary 17
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1 project located along the U.S.-Mexico border in the vicinity of San Diego.”).

2 Alternatively, if Sierra Club did read § 102(b) as the exclusive basis for a waiver

3 decision, this assumption is not persuasive because the court received no briefing on

4 that issue, see Defs.’ Br. at 30-31 n.21, and the court provided no explanation for such

5 a statutory interpretation. Cf. Osborn v. Bartos, No. 08-2193, 2010 WL 3809847, at

6 *4 n.8 (D. Ariz. Sept. 20, 2010) (rejecting as nonpersuasive another district court

7 decision that “proffered no explanation” for its conclusion). Such a mistaken

8 assumption certainly would not render the government’s interpretation of § 102

9 implausible or clearly erroneous. See Staacke, 841 F.2d at 282; Pacific Mar. Ass’n,

10 827 F.3d at 1208.

11

In sum, the government’s consistent interpretation of § 102(a) as calling for

12 additional construction of border infrastructure beyond the specific locations

13 identified by Congress in § 102(b) does not “contravene clear and mandatory statutory

14 language,” Pacific Mar. Ass’n, 827 F.3d at 1208, and cannot be the basis for striking

15 down agency action under ultra vires review.

16

2. Plaintiffs have not shown that § 102(c) waiver authority has

unambiguously expired 17

18

DHS has shown that Plaintiffs’ argument that the December 31, 2008 deadline

in § 102(b)(1)(B) applies generally to § 102(c) or § 102 as a whole is wholly 19

implausible. See Defs.’ Br. at 36-38. Congress plainly expected construction under § 20

21 102 to continue after the end of 2008. It set this deadline in December 2007 to ensure

that 370 miles of construction in “[p]riority areas” was completed within one year. 22

IIRIRA § 102(b)(1)(B). But the deadline plainly did not apply to the simultaneous 23

24 requirement to “construct reinforced fencing along not less than 700 miles of the

southwest border,” id. § 102(b)(1)(A), for which construction continued after 2008. 25

And if the deadline did not apply to other provisions of § 102(b), it certainly cannot be 26

27 interpreted to require the sunsetting of § 102(a) and 102(c) authority. Plaintiffs claim

that this straightforward reading “renders the deadlines . . . superfluous.” Cal. Reply 28

Defs.’ Reply in Support of Cross-Motion for Summary 18
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1 at 10. Not so. The deadlines performed their purpose. They were not intended to

2 limit DHS authority to construct border infrastructure in the future, but instead were

3 intended to ensure that DHS moved quickly to construct a minimum amount of

4 additional infrastructure within the following year.

5

3. Plaintiffs have not shown that § 102(c) unambiguously requires

that the Federal Register notice of a waiver determination

6

include detailed “findings”

7

As discussed above, Plaintiffs’ argument that the waiver determination must

8 include detailed “findings necessary for adequate judicial review,” Cal. Reply at 12;

9 Coal. Reply at 11, depends on the mistaken belief that APA review is available for

10 some aspects of the waiver determination. See supra, Arg. § II(A). And general

11 caselaw about what is required to pass muster under APA review, see, e.g., Cal. Reply

12 at 12 (citing Dickson v. Sec’y of Defense, 68 F.3d 1396, 1405 (D.C. Cir. 1995)),

13 cannot give rise to an ultra vires claim. Plaintiffs point to no statutory requirement

14 that the Federal Register notice contain such findings. See IIRIRA § 102(c)(1)

15 (stating only that notice of the Secretary’s decision must be “published in the Federal

16 Register”); cf. H.R. Rep. 109-72, at 170 (May 3, 2005) (Conf. Rep.) (explaining that

17 the limited purpose of the publication requirement was to “ensur[e] appropriate public

18 notice of such determinations”).15 DHS has shown that ultra vires review should, at

19 most, reach no further than confirming that the Secretary made the determination on

20 the basis of the statutory criteria, see Staacke, 841 F.2d at 281 (looking only for

21 violation of “a clear statutory mandate or prohibition”); Am. Airlines v. Herman, 176

22 F.3d 283, 293 (5th Cir. 1999) (“a plain violation of an unambiguous and mandatory

23 provision of the statute”), and that the Secretary’s determinations were made on the

24 basis of the statutory criteria. See Defs.’ Br. at 39-41. This showing satisfies ultra

25

26 15 Plaintiffs also offer no response to DHS’s showing that, because the waiver determination is to be made in the Secretary’s “sole discretion,” its exercise is
27 “committed to agency discretion by law.” Defs.’ Br. at 39 (quoting 5 U.S.C.
28 § 701(a)(2)).

Defs.’ Reply in Support of Cross-Motion for Summary 19
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1 vires review; and these determinations, well within the Secretary’s expertise and

2 delegated “sole discretion,” should not be subject to judicial second-guessing.16

3

4. Plaintiffs cannot show that key statutory terms unambiguously

preclude the waiver determinations at issue here

4

On reply, Plaintiffs continue to press the Court to engage in ordinary APA 5

6 review of three phrases in § 102 under the guise of ultra vires review. See Cal. Br. at 6-10; Coal. Br. at 10-14.17 None of the statutory phrases unambiguously preclude the
7

use of § 102(c) waiver authority for the construction projects at issue here. 8

9

a. “Additional barriers and roads”

10

DHS has shown that § 102(a)’s provision for “install[ing] additional physical

11 barriers” should not be read to exclude replacement of existing infrastructure with

12 taller and more operationally effective barriers. See Defs.’ Br. at 42-44. It is evident

13 that Congress intended “additional” in a capacious sense. First, Congress expressly

14 included “the removal of obstacles to detection of illegal entrants” within the meaning

15 of the term, § 102(a); along with the installation of “lighting, cameras, and sensors,”

16 id. § 102(b)(1)(A). Second, Congress, in the conference report explained that § 102

17 “provides for construction and strengthening of barriers along U.S. land borders.”

18 H.R. Rep. 109-72 at 170 (May 3, 2005) (Conf. Rep.) (emphasis added)); see also 152

19 Cong. Rec. S9871 (Sept. 21, 2006) (statement of Sen. Kyl) (discussing using § 102

20 16 California claims that “DHS and its Secretary have made public statements

21 contradicting” the findings in the waiver determinations. Cal. Reply at 12. This is

22

untrue. Comments about the general effectiveness of border infrastructure, see Defs.’ Resp. to Stmts. of Facts at 31, are not inconsistent with the need to replace outmoded

23 1990s fencing; and sector-wide priority assessments, see id. at 38-39, do not suggest

24

that specific areas cannot meet § 102’s “high illegal entry” requirement. Plaintiffs have not overcome the presumption of regularity that attaches to agency action. See

25 U.S. Postal Serv. v. Gregory, 534 U.S. 1, 10 (2001); San Luis & Delta-Mendota Water

26 Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014). 17 Because Plaintiffs make no further arguments on reply regarding the phrases “deter
27 illegal crossings,” and “most practical and effective,” DHS rests on its prior brief

28 addressing those arguments. See Defs.’ Br. at 48-50.

Defs.’ Reply in Support of Cross-Motion for Summary 20
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1 authority for “replacing the so-called landing mat fencing,” in part because it “is

2 deteriorating,” is “very difficult to repair because of its age,” and is disadvantageous

3 because Border Patrol “can’t see through it.”). And there is no inherent dichotomy

4 between “replacement” and “additional.” See Defs.’ Br. at 42 (comparing dictionary

5 definitions).18 It is implausible that Congress gave DHS only one shot at improving

6 border security at any given location under § 102. Nor can repair of infrastructure be

7 excluded from the scope of § 102, see Cal. Reply at 9-10, without substantially

8 impairing DHS’s ability to maintain infrastructure in locations that depend on § 102’s

9 waiver authority. See, e.g., Defs.’ Ex. 10, Walls & Waivers Hearing, 110th Cong. 17

10 (explaining that a waiver is necessary for construction in “national wildlife refuges

11 and wilderness areas”). Indeed, DHS has used § 102 to replace fencing in the past.

12 See, e.g., Defs.’ Ex. 23, U.S. Border Patrol, Envt’l Stewardship Plan for Nogales

13 Fence Replacement Project (Nov. 2011) (attached).

14

b. “Areas of high illegal entry”

15

DHS has shown that it would be unwarranted for a court, as Plaintiffs propose,

16 see Cal. Reply at 6-9, to set some absolute threshold for “high illegal entry” based on

17 a comparison to the flow of illegal immigration at the time the statute was enacted or

18 amended. See Defs.’ Br. at 44-48. Congress set no specific threshold for “high illegal

19 entry” and any interpretation of the term must be tied to the Act’s purpose, as

20 amended, “to achieve and maintain operational control over the international border”

21 § 102(b)(1)(D), and Congress’s choice to continue to use § 102 even though illegal

22 immigration had significantly declined from 1990s levels. See Defs.’ Br. at 44-45.

23 Thus, California’s claim that 100,000 apprehensions per year in a sector would not

24

25 18 California now argues that because the 2007 Amendments “focus solely on adding 26 mileage to the existing inventory,” the term “additional” must be defined with that
goal in mind. Cal. Reply at 9. But this one application of § 102(a) authority does not 27 reasonably narrow the broad scope of the term, especially where none of the prior 28 versions of § 102(b)(1) focused on mileage.

Defs.’ Reply in Support of Cross-Motion for Summary 21
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1 qualify as “high illegal entry,” Cal. Reply at 9, must be rejected. DHS’s approach

2 continues to “give[] effect” to the phrase as a “geographical limitation on DHS’s

3 ability to install” barriers under § 102. Cal. Reply at 7. The Secretary concluded here

4 that each project area and the sector in which it was located remained an area of high

5 illegal entry. See 82 Fed. Reg. at 35984, 42830. DHS does not maintain that § 102

6 would authorize construction where such a finding could not be made. But there is no

7 need to settle on a threshold for purposes of ultra vires review here because tens of

8 thousands of illegal entries of people and contraband per year plausibly comes within

9 the plain meaning of the term. See id.19

10

DHS does not dispute the Coalition Plaintiffs’ suggestion that “high” involves

11 “a relative description” and “must at least mean the opposite of ‘areas of low illegal

12 entry.’” Coal. Reply at 12. DHS simply maintains that “high” and “low” must be

13 assessed in light of the congressionally-imposed goal of operational control.20 And

14 here, where both sectors are in the upper third of sectors nationwide as ranked by

15 number of apprehensions, see Ex. 18, U.S. Border Patrol, Sector Profile – Fiscal Year

16

17 19 Plaintiffs err in claiming that contraband seizure statistics are irrelevant. See Cal.

18

Reply at 8 n.9. Congress included contraband in its definition of operational control. See Pub. L. No. 109-367 § 2(b). And CBP maintains separate statistics for seizures at

19 ports of entry by its Office of Field Operations and seizures between ports of entry by

20

U.S. Border Patrol. See, e.g., CBP Enforcement Statistics FY2018 (link); CBP, Border Security: Along U.S. Borders (link) (explaining that U.S. Border Patrol is

21 responsible for the area “between ports of entry”).

22 20 DHS does not argue that high illegal entry is “equivalent to those areas of which Border Patrol lacks ‘operational control.’” Coal. Reply at 12. Plaintiffs have not
23 shown that consideration of “operational control” is irrelevant to the relative
24 assessment required by “areas of high illegal entry.” While they suggest that 8 U.S.C. § 1330(b)(3)(A)(iii), which references “areas experiencing high levels of
25 apprehensions of illegal aliens,” is useful for interpreting § 102(a), they do not explain
26 how that language would further support any specific interpretation. See Coal. Reply at 13 n.7. Indeed, the most obvious result of a comparison is to suggest that § 102(a)
27 is broader because it is not limited the “apprehensions” of people but also includes
28 illegal entry of contraband. See Defs.’ Br. at 45 n.35.

Defs.’ Reply in Support of Cross-Motion for Summary 22
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1 2016, it cannot reasonably be concluded that these projects are in areas of

2 comparatively “low” illegal entry. Plaintiffs cannot defeat the Secretary’s conclusion

3 by relying on station-level data from 2004. See Defs.’ Br. at 47 (explaining the

4 limitations of the evidence in Cal. Ex. 22, which contains data from 1992 to 2004,

5 including that the information is more than a decade out of date); Cal. Reply at 8 n.9

6 (insisting that Plaintiffs’ can rely on station data from 2004 and earlier because it is

7 “[t]he most current data publically available”); cf. San Luis & Delta-Mendota Water

8 Auth., 747 F.3d at 601 (providing “presumption of regularity” to agency action).

9

c. “Consultation”

10

Finally, the Coalition Plaintiffs have not established that § 102(b)(1)(C)’s

11 consultation requirement is a basis for invalidating a waiver determination. As DHS

12 has explained, nothing in the waiver provision is expressly or implicitly dependent on

13 completion of the consultation requirement. See Defs.’ Br. at 50-51. Nor can

14 Plaintiffs separately enforce the provision because it does not give rise to a private

15 cause of action. See IIRIRA § 102(b)(1)(C)(ii) (stating that consultation requirement

16 does not “create . . . any right of action for a . . . person or entity affected by this

17 subsection”); Texas Border Coal. v. Napolitano, 614 F. Supp. 2d 54, (D.D.C. 2009).

18 Plaintiffs offer no response to DHS’s arguments. At any rate, consultation pursuant to

19 this provision is ongoing. See, e.g., Defs.’ Exs. 24-27 (attached to this filing)

20 (coordination letters regarding the Calexico project dated January 18 and 19, 2018).

21

In sum, each of these statutory terms fails to provide Plaintiffs with a “clear

22 command that the Secretary has transgressed.” Staacke, 841 F.2d at 282. Instead,

23 their arguments suggest that at most “the statute is capable of two plausible

24 interpretations,” and the Ninth Circuit has held that “the Secretary’s decision to adopt

25 one interpretation over the other cannot constitute a violation of a clear statutory

26 mandate.” Id.; see also Griffith v. FLRA, 842 F.2d 487, 494 (D.C. Cir. 1988)

27 (rejecting ultra vires challenge where agency’s approach was “not the only possible

28
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1 interpretation of the statutory language” but “surely a colorable one”).

2 IV. PLAINTIFFS’ CONSTITUTIONAL CLAIMS FAIL

3

Plaintiffs’ constitutional claims, the only claims properly before the Court,

4 IIRIRA § 102(c)(2)(A), fail to establish that Congress cannot (1) permit the Secretary

5 to determine which laws to waive and (2) strictly limit judicial review of such waiver

6 determinations.21

7

A. The Waiver Provision Does Not Violate Article I § 1

8

DHS has shown that § 102(c) does not unconstitutionally delegate legislative

9 power to the DHS Secretary. See Defs.’ Br. at 52-57. As the Ninth Circuit observed,

10 the last time the Supreme Court “invalidated legislation under this doctrine” was more

11 than “seventy-five years ago.” In re Nat’l Security Agency Telecomm. Records Litig.

12 (hereinafter “Telecomm. Records”), 671 F.3d 881, 895 (9th Cir. 2011). And every

13 court to consider a nondelegation challenge to § 102(c) has rejected it, beginning with

14 a decision in this district. See Sierra Club, 2005 U.S. Dist. LEXIS 44244, at *16-25;

15 see also County of El Paso v. Chertoff, No. 08-196, 2008 WL 4372693, at *2-4 (W.D.

16 Tex. 2008), cert. denied, 557 U.S. 915 (2009); Save Our Heritage, 533 F. Supp. 2d at

17 63-64; Defenders of Wildlife v. Chertoff, 527 F. Supp. 2d 119 (D.D.C. 2007), cert.

18 denied, 554 U.S. 918 (2008).

19

Here, Congress provided “an intelligible principle to which the person or body

20 authorized to [act] is directed to conform.” J.W. Hampton, Jr. Co. v. United States,

21 276 U.S. 394, 409 (1928).22 DHS has shown that § 102(a) delineates a “general

22

23 21 The Center’s Take Care Clause claim under Article II § 3 is not further addressed

24 here because briefing has been completed on that claim. See Defs.’ Mot. to Dismiss at

30-33, ECF No. 18-1; Defs.’ Br. at 63-65. 25
22 California claims that J.W. Hampton and a predecessor case “limit” the 26 nondelegation doctrine where the delegated power is the “modifi[cation] or

27 terminat[ion]” of tariffs or laws. Cal. Reply at 19. To the contrary, those cases merely found the intelligible principle standard easier to apply where “nothing . . . was
28 left to the determination of the President” other than “ascertain[ing] and declar[ing]”

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1 policy,” Mistretta v. United States, 488 U.S. 361, 373 (1989)—that improving border

2 protection by expediting the construction of necessary barriers and roads is a high

3 Congressional priority. See, e.g., Sierra Club, 2005 U.S. Dist. LEXIS 44244, at *20;

4 Defenders of Wildlife, 527 F. Supp. 2d at 127. There is also no doubt about “the

5 boundaries of this delegated authority.” Mistretta, 488 U.S. at 373. Congress

6 included a geographic boundary—waivers may only be issued in connection with

7 construction “in the vicinity of the United States border.” See Defs.’ Br. at 54

8 (quoting IIRIRA § 102(a)). And Congress included temporal “necessity” as a second

9 boundary. See id. § 102(c)(2) (permitting waiver of legal requirements where

10 “necessary to ensure expeditious construction” at those locations); Defenders of

11 Wildlife, 527 F. Supp. 2d at 127. As DHS has explained, Congress adopted this

12 approach of targeted flexibility because it could not sufficiently anticipate the ways

13 that existing laws would be wielded to frustrate Congress’ priorities. See Defs.’ Br. at

14 55. Such “necessity” determinations can be delegated. See Whitman v. Am. Trucking

15 Ass’ns, 531 U.S. 457, 475 (2001); Touby v. United States, 500 U.S. 160, 163 (1991).

16

On reply, Plaintiffs emphasize that, in Whitman, the discretion provided under

17 the Clean Air Act to set air quality standards for particular pollutants depended on

18 significant technical background and criteria. See Coal. Reply at 17. But this cannot

19 take away from the extraordinary discretion involved in “setting air standards that

20 affect the entire national economy.” Whitman, 531 U.S. at 475 (not requiring “the

21 statute to decree . . . how ‘necessary’ was necessary enough”). Despite Plaintiffs’

22 protestations to the contrary, § 102 involves far less than such a “sweeping regulatory

23 scheme[].” Id. Waiving laws to expedite border infrastructure construction is a far

24 more limited power. Accordingly, it can appropriately include less “substantial

25 guidance.” Id. (“[T]he degree of agency discretion that is acceptable varies according

26 that the triggering event had occurred. J.W. Hampton, at 410-11. California cites no
27 authority suggesting that these cases create a heightened standard for any category of
28 cases. For that reason, DHS did not discuss them separately.

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1 to the scope of the power congressionally conferred.”). As discussed above, the

2 guidance and boundaries Congress provided are sufficient. While Plaintiffs wish

3 Congress had adopted additional restrictions, such as applying § 102 exclusively to

4 the U.S.-Mexico border, Coal. Reply at 18, the absence of such restrictions does not

5 make the delegated authority unconstitutional.

6

Finally, as other courts have recognized, Congress may delegate in broader

7 terms regarding border infrastructure because the Executive Branch has significant

8 independent control over immigration, foreign affairs, and national security. See

9 Defs.’ Br. at 56; Sierra Club, 2005 U.S. Dist. LEXIS 44244, at *22-23; Defenders of

10 Wildlife, 527 F. Supp. 2d at 126, 129; cf. Telecomm. Records, 671 F.3d at 897

11 (holding that when the delegation “arises within the realm of national security . . . the

12 intelligible principle standard need not be overly rigid”). While it must “still [be] the

13 Legislative Branch, not the Executive Branch, that makes the law,” Zivotofsky v.

14 Kerry, 135 S. Ct. 2076, 2079 (2015), Congress has made the law here. The delegated

15 authority to waive laws impeding expeditious construction of this important

16 infrastructure does not usurp that function.

17

B. The Waiver Provision Does Not Violate Article I § 3

18

California insists that “Congress cannot . . . allow the Executive to choose, in

19 advance, which criminal laws to waive and when to waive them.” Cal. Reply at 18.

20 But DHS has shown that none of Plaintiffs’ citations support this sweeping

21 conclusion, and that it would be counterintuitive to conclude that Congress had less

22 power to delegate authority to relieve criminal sanctions than in other areas. See

23 Defs.’ Br. at 57-58. Plaintiffs certainly cannot derive such a principle from the dictum

24 that “no one is above the law.” That dictum has no meaningful application here where

25 the seven criminal provisions to which they point, Cal. Reply at 19 n.17, were not

26 waived to encourage or protect otherwise criminal action, but instead are merely part

27 of broader waivers of the Endangered Species Act, the Clean Air Act, Clean Water

28

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1 Act, and other less prominent statutes, to avoid civil litigation and expedite

2 construction. See 82 Fed. Reg. at 35985, 42830.

3

C. The Waiver Provision Does Not Violate Article I § 7

4

Plaintiffs’ claims under the Presentment Clauses fail because the waiver

5 determinations at issue here do not constitute “partial repeal” of the underlying

6 statutes. See Defs.’ Br. at 58-62. The Supreme Court holds that the Constitution does

7 not authorize the President “to enact, to amend, or to repeal statutes.” Clinton v. City

8 of New York, 524 U.S. 417, 438 (1998). But limited waivers of statutory provisions

9 have never been held to fall afoul of this principle. Both courts to consider such a

10 challenge to § 102(c) have rejected it. See County of El Paso, 2008 WL 4372693, at

11 *6-7; Defenders of Wildlife, 527 F. Supp. 2d at 123-26. Accordingly, the parties

12 dedicate very little space in their reply briefs to preserving this claim. See Ctr. Reply

13 at 18-19; Cal. Reply at 20.

14

DHS has shown that the waivers at issue here differ in dispositive ways from

15 the Line Item Veto Act, which gave the President the authority to “cancel” certain

16 appropriated spending items that had been passed by Congress. Clinton, 524 U.S. at

17 438. That statute failed because cancellation prevented the items “from having legal

18 force or effect” and thus in “both legal and practical effect, the President has amended

19 two Acts of Congress by repealing a portion of each.” Id.; see also id. at 447 (holding

20 it improper to give the President “unilateral power to change the text of duly enacted

21 statutes”). Here, by contrast, the waivers prevent no statutory provision “from having

22 legal force or effect” because the provisions continue in force for almost all of their

23 applications. See Defenders of Wildlife, 527 F. Supp. 2d at 124 (“Each of the [] laws

24 waived by the Secretary . . . retains the same legal force and effect as it had when it

25 was passed by both houses of Congress and presented to the President.”).23

26

27 23 Plaintiffs quote an academic article by a recently graduated law student to show that Defenders of Wildlife was “wrong,” but that article’s reasoning about “a statutory
28 bargain being overridden,” Ctr. Reply at 18, would be much more far reaching than

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1

Plaintiffs do not respond to most of DHS’s argument. They cannot dispute that

2 then-Judge John Roberts characterized waivers as “a far cry from the line-item veto at

3 issue in Clinton.” See Acree v. Republic of Iraq, 370 F.3d 41, 64 n.3 (D.C. Cir. 2004)

4 (Roberts, J., concurring). Nor do they attempt to distinguish Telecommunications

5 Records, in which the Ninth Circuit rejected a Presentment Clause challenge on the

6 ground that an “executive grant of immunity or waiver of claim” has “never been

7 recognized as a form of legislative repeal.” See Telecomm. Records, 671 F.3d at 895.

8 Such grants of immunity prevent civil actions to enforce the otherwise applicable

9 laws, just as the waivers prevent civil actions to enforce the environmental statutes,

10 but the Ninth Circuit found no constitutional defect because “[t]he law remains as it

11 was when Congress approved it and the President signed it.” Id. at 894-95.24

12 Plaintiffs also offer no response to DHS’s explanation that § 102(c) does not raise the

13 same separation of powers concerns as Clinton because there is nothing unseemly in

14 the Secretary’s implementation of the intent Congress expressed in 2005 for the

15 narrow waiver of NEPA, the ESA, and the CZMA, passed decades earlier. See Smith

16 v. Fed. Reserve Bank of N.Y., 280 F. Supp. 2d 314, 324 (S.D.N.Y. 2003); Moyle v.

17 Dir., Office of Workers’ Compensation Programs, 147 F.3d 1116, 1120 (9th Cir.

18 1998); Maldonado, 67 F. Supp. 2d at 1180.

19

Finally, Plaintiffs suggest that DHS’s approach lacks a limiting principle. See

20 Ctr. Reply at 19. But DHS has expressly provided one: “[u]nder the logic of Clinton

21 and other precedent, so long as a waiver does not leave a statutory provision with no

22 legal effect, there is no plausible claim for a legislative repeal in violation of the

23 Presentment Clauses.” Defs.’ Br. at 61 n.49 (citing Acree, 370 F.3d at 64 n.3;

24

25 current Supreme Court and Ninth Circuit precedent.

26 24 Plaintiffs attempt to distinguish the waiver authority here from other waiver statutes by the scope of the waiver or the availability of judicial review, see Ctr. Br. at 33-34;
27 Cal. Br. at 39; but they do not purport to canvas all other waiver statutes enacted by
28 Congress and cannot show that any court found such distinctions relevant.

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1 Telecomm. Records, 671 F.3d at 895). In sum, the other courts to address this matter

2 correctly concluded that § 102(c) does not violate the Presentment Clauses.

3

D. The Waiver Provision Does Not Violate Constitutional Provisions

Regarding Access to the Courts 4

DHS has shown that each of Plaintiffs’ three arguments about access to the 5

6 courts or due process fail to establish any constitutional violation here. See Defs.’ Br.

7 at 65-70. First, Plaintiffs ask the Court to conclude that the “right of access to the

courts”—based in the First Amendment right to “petition for redress of grievances” 8

9 (the “Petition Clause”)—acts as a limit on Congress’s authority to limit the

10 jurisdiction of the lower courts. DHS has shown that the Petition Clause protects

against obstructions to available administrative or judicial proceedings. See, e.g., 11

12 Ringgold-Lockhart v. Cnty. of Los Angeles, 761 F.3d 1057, 1061-62 (9th Cir. 2014);

13 Munguia v. Frias, No. 07-1016, 2009 WL 3157482, at *12 (S.D. Cal. Sept. 24, 2009).

It would be entirely novel to apply it to the creation of administrative or judicial 14

15 jurisdiction in the first place. See Defs.’ Br. at 66-67. Nor do Plaintiffs explain how

such a notion could be reconciled to Congress’s well-established authority to limit the 16

jurisdiction of the lower federal courts. As DHS noted, while there is no binding 17

18 precedent on this issue, the closest cases show that Plaintiffs’ proposal must be

rejected. See, e.g., Roller v. Gunn, 107 F.3d 227, 231 (4th Cir.1997) (“[T]he right of 19

access to federal courts . . . is subject to Congress’ Article III power to set limits on 20

federal jurisdiction.”);25 Wilbur v. Locke, 423 F.3d 1101, 1116 (9th Cir. 2005), 21

abrogated on other grounds, Levin v. Commerce Energy, Inc., 560 U.S. 413 (2010) 22

(right of access “is not absolute” and “must be exercised within the limits of the 23

courts’ prescribed procedures”).26 24

25 25 Plaintiffs claim that Roller is irrelevant because it did not mention the Petition

26 Clause. Cal. Reply at 17 n.16. But its observations are relevant because the Ninth Circuit has explained that “right of access” caselaw is rooted in numerous overlapping
27 constitutional provisions. See Ringgold-Lockhart, 761 F.3d at 1061-62.

28 26 The Supreme Court abrogated Wilber on the threshold question of comity for state

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1

Second, Plaintiffs argue that Congress cannot “eliminate concurrent state court

2 jurisdiction” without providing a federal forum for that claim to be heard. Coal. Reply

3 at 19. But as DHS has shown, there is no support for that notion and Plaintiffs’ claim

4 is undermined by the primary case on which they rely. See Defs. Br. at 68.

5 Concurrent state court jurisdiction “depends altogether upon the pleasure of Congress,

6 and may be revoked and extinguished whenever they think proper, in every case in

7 which the subject-matter can constitutionally be made cognizable in the Federal

8 courts.” Haywood v. Drown, 556 U.S. 729, 747 (2009) (Thomas, J., dissenting)

9 (quoting Plaquemines Tropical Fruit Co. v. Henderson, 170 U.S. 511, 517-18 (1898))

10 (emphasis added). Here, Congress has expressly made federal jurisdiction exclusive

11 for challenges to the waiver determinations, which is plainly a matter cognizable in

12 federal court. See IIRIRA § 102(c)(2)(A). And to the extent Plaintiffs are referring to

13 the waived state laws, DHS limited its waivers to those for which the subject-matter

14 can be made cognizable in federal court. See, e.g., 82 Fed. Reg. at 35985 (waiving

15 “state . . . laws, regulations, and legal requirements of, deriving from, or related to the

16 subject of, the following [federal] statutes”).

17

Third, Plaintiffs claim that the challenged waiver determinations fail to provide

18 adequate notice in violation of the Due Process Clause of the Fifth Amendment. DHS

19 has shown that Plaintiffs have failed to carry their burden to establish a cognizable

20 life, liberty, or property interest for which due process is required. See Defs.’ Br. at

21 69; Wilkinson v. Austin, 545 U.S. 209, 221 (2005). On reply, only California

22 addresses this issue, claiming an “interest in the enforcement of its state laws” and

23 “preservation of [state] property . . . adjacent to the” projects. Cal. Reply at 17 (citing

24 Cal. Br. at 13). These terse assertions from California’s discussion of its

25 constitutional standing do not carry its burden. California provides no support for the

26

27 court jurisdiction and did not address Wilber’s treatment of the merits argument about 28 “right of access.” See Levin, 560 U.S. at 417, 420; Wilbur, 423 F.3d at 1110, 1115-16.

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1 notion that its parochial enforcement interest is cognizable under the Fifth

2 Amendment, and it has not shown any deprivation of its property interests stemming

3 from the waivers. See Defs.’ Resp. to Pls.’ Stmt. of Facts at 23, ECF No. 35-3.27

4 Moreover, California cannot show that the waiver determinations fail to provide

5 sufficient notice of the waiver of state law. Because state law that can bind federal

6 action is vanishingly rare, the set of laws that would otherwise be enforceable is quite

7 limited and it should not be difficult to determine whether such a law is “related to”

8 one of the waived federal statutes.28 As California obliquely acknowledged, the

9 statutes primarily affected are those related to environmental “permitting authority.”

10 See Cal. Reply at 3 n.3; see also Cal. Compl. ¶¶ 38-39, 112-15. Any lingering

11 uncertainty would not harm California because it could initiate an enforcement action,

12 whereupon the enforceability of the provision could be tested in court.29 Nor does

13 California lack sufficient notice of the project areas or construction projects. DHS has

14 clarified that the two projects specified in the San Diego waiver determination are the

15 only projects DHS will complete pursuant to that notice. See Defs.’ Br. at 70; Defs.’

16 Resp. to Stmt. of Facts at 34-35.30

17

18 27 California also claims that its “void-for-vagueness challenge” can proceed
19 independently from the Due Process Clause, citing a case stating that an unconstitutionally vague law can violate the Free Speech Clause. See Cal. Reply at 17
20 (citing O’Brien v. Welty, 818 F.3d 920, 930 (9th Cir. 2016)). While Welby used “First
21 Amendment” as shorthand for the Free Speech Clause, Plaintiffs cannot show that the underlying rationales, such as chilling speech or being unaware that one’s behavior
22 could be punished, 818 F.3d at 930, would equally apply to the Petition Clause.

23 28 As for California’s claim that “courts routinely apply California law to federal

24

construction projects,” Cal. Reply at 17, its only example involves state contract law, which is undoubtedly unaffected by the waiver determinations. See Harper/Nielsen-

25 Dillingham, Builders, Inc. v. United States, 81 Fed. Cl. 667, 679 (2008).

26 29 Thus California’s interest differs significantly from an individual who lacks knowledge of “what is permissible and what is forbidden.” Cal. Reply at 16 (quoting
27 Hirschkop v. Snead, 594 F.2d 356, 371, 375 (4th Cir. 1979)).

28 30 There is no “admitted constitutional violation” to “cure.” Cal. Reply at 16. It was

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1

E. The Waiver Provision Does Not Violate the Tenth Amendment

2

California has no viable claim that Congress violated the Tenth Amendment by

3 permitting the waiver of state laws that impede expeditious construction of border

4 infrastructure. It is not an intrusion on state sovereignty to preempt state laws for

5 purposes of a federal construction project within Congress’s express authority.

6

DHS has shown that the waiver of state law—whether by statute or by

7 regulation—is simply a limited form of federal preemption. See Defs.’ Br. at 71.

8 Ninth Circuit law is clear that in general, “if Congress acts under one of its

9 enumerated powers, there can be no violation of the Tenth Amendment.” United

10 States v. Jones, 231 F.3d 508, 515 (9th Cir. 2000); see also Gila River Indian

11 Community v. United States, 729 F.3d 1139, 1153 (9th Cir. 2013). And California

12 does not dispute DHS’s showing that Ninth Circuit caselaw is also clear that the

13 power to preempt state laws that conflict with or serve as an obstacle to the purposes

14 of federal law does not “intrude on the rights reserved under the Tenth Amendment.”

15 S. Cal. Edison Co. v. Lynch, 307 F.3d 794, 808 (9th Cir. 2002); see also United States

16 v. Geiger, 263 F.3d 1034, 1040 (9th Cir. 2001).31 California likewise does not dispute

17 DHS’s showing that the state’s police power claims are not enough to raise a viable

18 Tenth Amendment claim because “[g]enerally speaking, . . . a power granted to

19 Congress trumps a competing claim based on a state’s police power.” Gonzalez v.

20

21 not impermissibly vague for the San Diego notice to reference “various border

22

infrastructure projects” and then identify the two that will be constructed. See 82 Fed. Reg. at 35984-85. California’s concern that the waiver would be used for other

23 projects has been addressed. DHS has no need to include subsequently selected

24 projects within this notice because it can simply issue another notice. 31 Heath v. Alabama, 474 U.S. 82 (1985), cited by California, does not imply that a
25 state has sovereign rights against federal preemption. That case merely applied “the

26 dual sovereignty doctrine” of the Double Jeopardy Clause “to successive prosecutions

by two States.” Id. at 83. It concluded that the Constitution does not “deny a State its 27 power to enforce its criminal laws because another State has won the race to the

28 courthouse.” Id. at 93.

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1 Raich, 500 F.3d 850, 867 (9th Cir. 2007). Nor does California dispute that regulation

2 of the border and providing for the enforcement of federal law are quintessentially

3 within Congress’ inherent and enumerated powers. See Cal. Reply at 15.

4

Instead, California claims the Supreme Court has “rejected the same cramped

5 interpretation of the Tenth Amendment that Defendants advance here.” Cal. Reply at

6 13. But Defendants have merely cited controlling Ninth Circuit law. Accordingly,

7 California’s claim that Supreme Court cases from the 1990s undermine more recent

8 Ninth Circuit decisions is not persuasive. See Cal. Reply at 13-14 (citing New York v.

9 United States, 505 U.S. 144 (1992); Printz v. United States, 521 U.S. 898 (1997)).

10 California simply cannot show, in light of the Ninth Circuit caselaw discussed above,

11 that the limited preemption that Congress permitted in § 102(c)(1) does not implicate

12 the States’ “inviolable sovereignty.” New York, 505 U.S. at 188. This limited

13 preemption is a far cry from the commandeering at issue in New York and Printz. See

14 New York, 505 U.S. at 188 (“Whatever the outer limits of that sovereignty may be,

15 one thing is clear: The Federal Government may not compel the States to enact or

16 administer a federal regulatory program.”); Printz, 521 U.S. at 935 (“Congress cannot

17 . . . conscript[] the State's officers directly.”). In no way does the preemption of

18 various state environmental laws that might have been applicable to these federal

19 construction projects along the border implicate the “essential attribute of the States'

20 retained sovereignty that they remain independent and autonomous within their proper

21 sphere of authority.” Printz, 521 U.S. at 928.

22

California’s reliance on Shelby County v. Holder, 133 S. Ct. 2612 (2013) is

23 entirely misplaced.32 At bottom, that case simply held that “[t]o serve [the Fifteenth

24

25 32 While California initially made an “alternative” argument based on City of Boerne v. Flores, 521 U.S. 507 (1997), Cal. Br. at 27-28, on reply it defends this argument
26 only in a footnote. See Cal. Reply at 16 n.14. As DHS explained, Boerne does not

27 stand for the broad principle California suggests. See Defs.’ Br. at 73-74. The Supreme Court described Boerne as part of a series of cases regarding the Fourteenth
28 Amendment power to abrogate a state’s sovereign immunity to “remedy and deter

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1 Amendment] purpose, Congress—if it is to divide the States—must identify those

2 jurisdictions to be singled out on a basis that makes sense in light of current

3 conditions.” 133 S. Ct. at 2629. When courts are “assessing . . . disparate treatment

4 of States,” it must do so in light of the “highly pertinent” and “fundamental principle

5 of equal sovereignty.” Id. Shelby County has no application here for several reasons.

6 First, the limited preemption of state law, as discussed above, is not an intrusion on

7 state sovereignty, and thus does not implicate equal sovereignty. See Defs.’ Br. at 72.

8 Unlike the Voting Rights Act requirement that certain states get “federal permission

9 before enacting any law related to voting,” 133 S. Ct. at 2618, States remain free to

10 enact and implement any state law—the preempted enforcement of state law for the

11 federal construction projects is no impairment of retained sovereignty. Second,

12 Congress did not distinguish between any states in § 102, and no court has suggested

13 that a disparate impact on certain states raises the same concerns as disparate

14 treatment. See id. at 2619, 2624, 2630 (repeatedly referencing “disparate treatment”).

15 Third, even if disparate impact is relevant, an impact on the states adjoining the U.S.

16 international border remains a “basis that makes sense in light of current conditions.”

17 Id. at 2629. As DHS has explained, it is irrelevant that illegal entries have declined

18 since 2005, because Congress is always free to preempt state law that impedes its

19 inherent and enumerated powers regarding border and immigration control. See

20 Defs.’ Br. at 73; County of El Paso, No. 08-196, 2008 WL 4372693, at *8 (“The

21 Secretary, pursuant to the Supremacy Clause, has only waived state and local laws

22 which interfere with Congress’s purpose to construct the border barrier.”).

23

24 violation of [constitutional] rights.” Tennessee v. Lane, 541 U.S. 509, 518 (2004). California protests that Boerne “never mentions” sovereign immunity, Cal. Reply at
25 16 n.14, but this context is key because Boerne turned on the disconnect between the
26 Religious Freedom Reformation Act and § 5’s remedial purpose. See 521 U.S. at 532. As DHS explained, that analysis has no application here because preemption is unlike
27 abrogating state immunity and Congress here is free to enact substantive law, rather
28 than being limited to remedial action. See Defs.’ Br. at 73-74.

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1

For all of these reasons, Shelby County cannot be generalized into the

2 proposition that “a validly enacted federal statute that burdens a subset of states but

3 not others will become unconstitutional if progress is made curbing the problem the

4 statute seeks to prevent.” Cal. Reply at 14 (quoting Cal. Br. at 25). “Making

5 progress” would be an utterly untenable standard to apply. In addition, the Supreme

6 Court did not suggest that “making progress” alone renders a law unconstitutional, but

7 far more narrowly held that any distinction between states must be on a “basis that

8 makes sense in light of current conditions.” 133 S. Ct. at 2629. To whatever extent §

9 102(c)(2)(A) can be characterized as distinguishing between states, the basis for that

10 distinction makes just as much sense today as it did in 2005.

11 V. PLAINTIFFS ARE NOT ENTITLED TO RELIEF UNDER OTHER

STATUTES OR TO THE REMEDIES THEY SEEK FOR THEIR

12

CONSTITUTIONAL AND ULTRA VIRES CLAIMS

13

Defendants have shown that they are entitled to summary judgment and that

14 Plaintiffs’ motions should be denied. Plaintiffs acknowledge that their statutory

15 claims under NEPA, ESA, and CZMA regarding the projects specified in the 2017

16 waivers must be dismissed if the waivers are upheld. See, e.g., Cal. Reply at 4. And

17 as discussed above, the Coalition Plaintiffs’ APA claims must be rejected for lack of

18 jurisdiction. See supra, Arg. § II(A). Accordingly, those claims must be dismissed.

19

California claims that it has caught DHS on a technical failure to dispute its

20 overbroad NEPA claim, and therefore that it is entitled to summary judgment as to the

21 “planning of infrastructure projects that fall outside the scope of any waiver.” Cal.

22 Reply at 3. DHS did not understand California to be pressing claims regarding

23 infrastructure projects “along the entire 2000-mile southern border.” Cal. Reply at 3.

24 DHS disputes that there is a single “Border Wall Project” to which NEPA could

25 apply. See Defs.’ Revised Resp. to Cal. Stmt. of Facts.33 California has failed to carry

26

27 33 DHS has revised its Response to Plaintiffs’ Statements of Fact to clarify the
28 disputed facts in light of California’s elaboration of its intent. See Defs.’ Revised

Defs.’ Reply in Support of Cross-Motion for Summary 35

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1 its burden to establish its standing to press such claims. See supra, Arg. § I. Nor has

2 California established that any such planning rises to the level of any concrete

3 proposals that would trigger a NEPA obligation or for which DHS could consider

4 whether any additional waivers would be appropriate. See, e.g., Northcoast Envtl.

5 Ctr. v. Glickman, 136 F.3d 660, 670 (9th Cir. 1998) (holding that NEPA obligations

6 were not triggered until a federal agency proposed site-specific activities calling for

7 “specific actions directly impacting the physical environment”). This also means

8 there has been no final agency action under the APA upon which to base such a NEPA

9 claim. See id. at 668-69 (noting that NEPA challenges to “broad ill-defined [federal

10 agency] programs that do not cause concrete effects” were not ripe for judicial review

11 under the APA “final agency action” requirement until the agency approved “concrete

12 actions” affecting the environment). Similarly, because California has not shown that

13 the possibility of later replacing secondary fencing in the San Diego Sector has risen

14 to the level of an “activity” for purposes of the CZMA, 16 U.S.C. § 1446; Sec'y of the

15 Interior v. California, 464 U.S. 312, 319 (1984), or final agency action under the

16 APA, Plaintiffs cannot press any claims regarding that potential project here. See

17 Akiak Native Cmty. v. U.S. Postal Serv., 213 F.3d 1140, 1144 (9th Cir. 2000); George

18 v. Evans, 311 F. App’x 426, 428-29 (2d Cir. 2009); see also Defs.’ Br. at 70; Defs.’

19 Resp. to Stmts. of Facts at 34-35, ECF No. 35-3 (explaining that the San Diego waiver

20 determination is limited to the primary fence replacement project and the prototypes

21 project). For all of these reasons, California cannot receive summary judgment for

22 DHS activities outside the scope of the 2017 waiver determinations.

23

Finally, Plaintiffs have not disputed Defendants’ request that, if the Court rules

24 for Plaintiffs, Defendants be provided the opportunity to provide separate briefing on

25 remedy. See Defs.’ Br. at 77.

26

27

28 Resp. to Cal. Stmt. of Facts (attached herewith).
Defs.’ Reply in Support of Cross-Motion for Summary 36
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1

CONCLUSION

2

For the foregoing reasons, the Court should grant summary judgment to

3 Defendants on all counts and deny Plaintiffs’ motions for summary judgment on all

4 counts, with the exception of the Center’s FOIA claim in its Count 7 which is not yet

5 ripe for disposition.

6

7 Dated: January 23, 2018

Respectfully submitted,

8

CHAD A. READLER

9

Acting Assistant Attorney General Civil Division

10

JOHN R. TYLER

11

Assistant Director

12

/s/ Galen N. Thorp

13

GALEN N. THORP

Senior Counsel

14

VA State Bar No. 75517

15

U.S. Department of Justice Civil Division, Federal Programs Branch

16

950 Pennsylvania Avenue NW Washington, DC 20530

17

Tel: (202) 514-4781

Fax: (202) 616-8460

18

Email: galen.thorp@usdoj.gov

19

ADAM BRAVERMAN

20

United States Attorney

REBECCA G. CHURCH

21

Assistant U.S. Attorney

Cal. State Bar No. 259652

22

Email: rebecca.church@usdoj.gov

23

Telephone: (619) 546-7721 Office of the U.S. Attorney

24

880 Front Street, Room 6293

San Diego, CA 92101-8893

25

Facsimile: (619) 546-7751

26

Attorneys for Federal Defendants

27

28
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1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11

12

IN RE: BORDER INFRASTRUCTURE

13 ENVIRONMENTAL LITIGATION

Case No.: 17cv1215-GPC(WVG) Consolidated with: 17cv1873-GPC(WVG) 17cv1911-GPC(WVG)

14

ORDER DENYING PLAINTIFFS’

15

MOTIONS FOR SUMMARY

16

JUDGMENT AND GRANTING DEFENDANTS’ MOTIONS FOR

17

SUMMARY JUDGMENT

18

[Dkt. Nos. 18, 28, 29, 30, 35.]

19

20

These three consolidated cases involve challenges to Waiver Determinations made

21 by former Secretaries of the Department of Homeland Security on August 2, 2017 and 22 23 September 12, 2017 pursuant to section 102 of IIRIRA1 waiving the legal requirements of

24

25

26

27 1 Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
1
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1 NEPA,2 the ESA,3 the CZMA4 and more than 30 additional laws not at issue in these

2 cases. The Waiver Determinations concern two types of border wall construction 3 4 projects in San Diego County: (1) the “border wall prototype project”; and (2) the

5 replacement of fifteen miles of existing border fence in the San Diego Sector and three

6 miles of existing border fence in the El Centro Sector (“border fence replacement 7 8 projects”). The Plaintiffs allege variously that (1) the Waivers are ultra vires acts that

9 exceed the authority delegated by Congress; and (2) the Waivers are unconstitutional acts

10 under a variety of legal doctrines.

11

12

The Court is aware that the subject of these lawsuits, border barriers, is currently

13 the subject of heated political debate in and between the United States and the Republic

14 of Mexico as to the need, efficacy and the source of funding for such barriers. In its 15 16 review of this case, the Court cannot and does not consider whether underlying decisions

17 to construct the border barriers are politically wise or prudent. As fellow Indiana native

18 Chief Justice Roberts observed in addressing a case surrounded by political 19 20 disagreement: “Court[s] are vested with the authority to interpret the law; we possess

21 neither the expertise nor the prerogative to make policy judgments. Those decisions are

22 entrusted to our Nation’s elected leaders, who can be thrown out of office if the people 23

24

25
26 2 National Environmental Policy Act of 1969.
3 Endangered Species Act.
27 4 Coastal Zone Management Act.
2
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1 disagree with them. It is not our job to protect the people from the consequences of their

2 political choices.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 538 (2012). 3 4 Here, the Court will focus on whether Congress has the power under the Constitution to

5 enact the challenged law and whether the Secretary of Department of Homeland Security

6 properly exercised the powers delegated by Congress.

7

8

Before the Court are three cross-motions for summary judgment. A hearing was

9 held on February 9, 2018. (Dkt. No. 44.) Michael Cayaban, Esq. and Noah Golden

10 Frasner, Esq. appeared on behalf of Plaintiffs People of the State of California and the 11 12 California Coastal Commission; Brian Segee, Esq. and Brendan Cummings, Esq.

13 appeared on behalf of Plaintiff Center for Biological Diversity; and Sarah Hanneken, Esq.

14 appeared on behalf of the Plaintiffs Defenders of Wildlife, Sierra Club, and Animal Legal 15 16 Defense Fund. (Id.) Galen Thorp, Esq. appeared on behalf of Defendants. (Id.) The

17 parties filed supplemental briefs on February 13, 2018. (Dkt. Nos. 46, 47, 48, 49.)

18

Based on the parties’ briefs, the supporting documentation, the applicable law, the

19

20 arguments made at the hearing and the supplemental briefing, the Court DENIES

21 Plaintiffs’ motions for summary judgment and GRANTS Defendants’ motions for

22 summary judgment. 23 24 ///

25 ///

26 /// 27
28

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1 I. BACKGROUND

2

A. Section 102 of Illegal Immigration Reform and Immigrant

3

4 Responsibility Act

5

In 1996, Congress enacted the Illegal Immigration Reform and Immigrant

6 Responsibility Act (“IIRIRA”), which, pursuant to Section 102(a), required the Attorney 7 8 General to “take such actions as may be necessary to install additional physical barriers

9 and roads (including the removal of obstacles to detection of illegal entrants) in the

10 vicinity of the United States border to deter illegal crossings in areas of high illegal entry 11 12 into the United States.” Pub. L. No. 104–208, Div. C., Title I, § 102(a), 110 Stat. 3009,

13 3009–554 (1996), codified at 8 U.S.C. § 1103 note. IIRIRA Section 102(c), as originally

14 enacted, authorized the Attorney General to waive the Endangered Species Act of 1973 15 16 (“ESA”) and the National Environmental Policy Act of 1969 (“NEPA”) when he

17 determined such waiver “was necessary to ensure expeditious construction of the barriers

18 and roads under this section.” Id. § 102(c). The Homeland Security Act of 2002 19 20 abolished the Immigration and Naturalization Service and transferred responsibility for

21 the construction of border barriers from the Attorney General to the Department of

22 Homeland Security (“DHS”). Pub. L. No. 107–296, 116 Stat. 2135 (2002). In 2005, the 23 24 REAL ID Act, Pub. L. No. 109-13, Div. B, Title I, § 102, 119 Stat. 231, 302, 306 (May

25 11, 2005), amended the waiver authority of section 102(c) expanding the Secretary of

26 DHS’ authority to waive “all legal requirements” that the Secretary, in his or her own

27

4

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1 discretion, determines “necessary to ensure expeditious construction of the barriers and

2 roads under this section.” Id. It also added a judicial review provision that limited the 3 4 district court’s jurisdiction to hear any causes or action concerning the Secretary’s waiver

5 authority to solely constitutional claims. Id. § 102(c)(2)(A). Further, the provision

6 foreclosed appellate court review and directed any review of the district court’s decision 7 8 be raised by petition for a writ of certiorari with the Supreme Court of the United States.

9 Id. § 102(c)(2)(C).

10

Section 102 consists of three sections: (1) section 102(a) describes the general

11

12 purpose of the statute; (2) section 102(b) specifies Congress’ mandate for specific border

13 barrier construction; and (3) section 102(c) grants the Secretary the discretion to waive

14 “all legal requirements” he or she “determines necessary to ensure expeditious 15 16 construction of the barriers and roads” and provides for limited judicial review of the

17 Secretary’s waiver decision to solely constitutional violations. See 8 U.S.C. § 1103 note.

18

Since its enactment in 1996, IIRIRA section 102 has been amended three times

19

20 although the general purpose of the statute under section 102(a) has remained the same.

21 When IIRIRA was first enacted in 1996, section 102(b) mandated “construction along the

22 14 miles of the international land border of the United States, starting at the Pacific 23 24 Ocean and extending eastward of second and third fences, in addition to the existing

25 reinforced fence, and for roads between the fences.” 8 U.S.C. § 1103(b) (1996).

26

27

5

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The Secure Fence Act of 2006, Pub. L. No. 109-367, § 3, 120 Stat. 2638 (Oct. 26,

2 2006), amended the specific mandates of section 102(b). It directed the DHS to “provide 3 4 for at least 2 layers of reinforced fencing, [and] the installation of additional physical

5 barriers, roads, lighting, cameras, and sensors” in five specific segments along the U.S.-

6 Mexico border encompassing the states of California, Arizona, New Mexico and Texas. 7 8 Id. It also set dates of completion for two segments to be completed by certain dates in

9 2008. Id.

10

Fourteen months later, the Consolidated Appropriations Act of 2008, Pub. L. No.

11

12 110-161, Div. E, Title V § 564, 121 Stat. 2090 (Dec. 26, 2007), again amended the

13 mandates of section 102(b) and they currently remain the operative version of the statute.

14

In its current version, section 102, codified at 8 U.S.C. § 1103 note, provides,

15

(a) In general.--The Secretary of Homeland Security shall take such actions

16

as may be necessary to install additional physical barriers and roads

17

(including the removal of obstacles to detection of illegal entrants) in the vicinity of the United States border to deter illegal crossings in areas of high

18

illegal entry into the United States.

19

(b) Construction of fencing and road improvements along the border.--

20

21

(1) Additional fencing along southwest border.--

22

(A) Reinforced fencing.--In carrying out subsection (a) [of this

23

note], the Secretary of Homeland Security shall construct reinforced fencing along not less than 700 miles of the southwest border where

24

fencing would be most practical and effective and provide for the

25

installation of additional physical barriers, roads, lighting, cameras, and sensors to gain operational control of the southwest border.

26

27

6

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(B) Priority areas.--In carrying out this section [Pub. L. 104-208,

2

Div. C, Title I, § 102, Sept. 30, 1996, 110 Stat. 3009-554, which amended this section and enacted this note], the Secretary of

3

Homeland Security shall--

4

(i) identify the 370 miles, or other mileage determined by the

5

Secretary, whose authority to determine other mileage shall expire on

6

December 31, 2008, along the southwest border where fencing would be most practical and effective in deterring smugglers and aliens

7

attempting to gain illegal entry into the United States; and

8

(ii) not later than December 31, 2008, complete construction of

9

reinforced fencing along the miles identified under clause (i).

10

(C) Consultation.--

11

12

(i) In general.--In carrying out this section, the Secretary of Homeland Security shall consult with the Secretary of the Interior, the

13

Secretary of Agriculture, States, local governments, Indian tribes, and

14

property owners in the United States to minimize the impact on the environment, culture, commerce, and quality of life for the

15

communities and residents located near the sites at which such fencing

16

is to be constructed.

17

(ii) Savings provision.--Nothing in this subparagraph may be

18

construed to—

19

(I) create or negate any right of action for a State, local government,

20

or other person or entity affected by this subsection; or

21

(II) affect the eminent domain laws of the United States or of any

22

State.

23

(D) Limitation on requirements.--Notwithstanding subparagraph

24

(A), nothing in this paragraph shall require the Secretary of Homeland Security to install fencing, physical barriers, roads, lighting, cameras,

25

and sensors in a particular location along an international border of

26

the United States, if the Secretary determines that the use or placement of such resources is not the most appropriate means to

27

7

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1

achieve and maintain operational control over the international border

2

at such location.

3

(2) Prompt acquisition of necessary easements.--The Attorney General,

4

acting under the authority conferred in section 103(b) of the Immigration and Nationality Act (as inserted by subsection (d)) [subsec. (b) of this

5

section], shall promptly acquire such easements as may be necessary to carry

6

out this subsection and shall commence construction of fences immediately following such acquisition (or conclusion of portions thereof).

7

8

(3) Safety features.--The Attorney General, while constructing the additional fencing under this subsection, shall incorporate such safety

9

features into the design of the fence system as are necessary to ensure the

10

well-being of border patrol agents deployed within or in near proximity to the system.

11

12

(4) Authorization of appropriations.--There are authorized to be appropriated such sums as may be necessary to carry out this subsection.

13

Amounts appropriated under this paragraph are authorized to remain

14

available until expended.

15

(c) Waiver.--

16

(1) In general.--Notwithstanding any other provision of law, the Secretary

17

of Homeland Security shall have the authority to waive all legal

18

requirements such Secretary, in such Secretary’s sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under

19

this section. Any such decision by the Secretary shall be effective upon

20

being published in the Federal Register.

21

(2) Federal court review.--

22

(A) In general.--The district courts of the United States shall have

23

exclusive jurisdiction to hear all causes or claims arising from any

24

action undertaken, or any decision made, by the Secretary of Homeland Security pursuant to paragraph (1). A cause of action or

25

claim may only be brought alleging a violation of the Constitution of

26

the United States. The court shall not have jurisdiction to hear any claim not specified in this subparagraph.

27

8

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1

2

(B) Time for filing of complaint.--Any cause or claim brought pursuant to subparagraph (A) shall be filed not later than 60 days after

3

the date of the action or decision made by the Secretary of Homeland

4

Security. A claim shall be barred unless it is filed within the time specified.

5

6

(C) Ability to seek appellate review.--An interlocutory or final judgment, decree, or order of the district court may be reviewed only

7

upon petition for a writ of certiorari to the Supreme Court of the

8

United States.”

9 8 U.S.C. § 1103 note (hereinafter “8 U.S.C. § 1103”).

10

B. Factual Background

11

12

On January 25, 2017, President Donald J. Trump issued Executive Order No.

13 13767 entitled “Border Security and Immigration Enforcement Improvements.” (Dkt.

14 No. 30-5, Cayaban Decl., Ex. 7, Executive Order, 82 Fed. Reg. 8793.) Section 4 of the 15 16 Executive Order No. 13767 concerns “Physical Security of the Southern Border of the

17 United States” and provides, in part,

18

The Secretary shall immediately take the following steps to obtain complete

19

operational control, as determined by the Secretary, of the southern border:

20

(a) In accordance with existing law, including the Secure Fence Act and

21

IIRIRA, take all appropriate steps to immediately plan, design, and construct

22

a physical wall along the southern border, using appropriate materials and technology to most effectively achieve complete operational control of the

23

southern border;

24

. . .

25

(d) Produce a comprehensive study of the security of the southern border, to

26

be completed within 180 days of this order, that shall include the current state of southern border security, all geophysical and topographical aspects

27

9

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1

of the southern border, the availability of Federal and State resources

2

necessary to achieve complete operational control of the southern border, and a strategy to obtain and maintain complete operational control of the

3

southern border.

4

5 (Id. at §§ 4(a) & (d).) “‘Wall’ shall mean a contiguous, physical wall or other similarly

6 secure, contiguous, and impassable physical barrier.” (Id. at § 3(e).)

7

8

On August 2, 2017, former DHS Secretary John Kelly issued a Determination

9 Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility

10 Act of 1996, as Amended (“August 2 Waiver Determination” or “San Diego Waiver”) in 11 12 the Federal Register invoking section 102(c)’s waiver of the application of NEPA, the

13 ESA, the Coastal Zone Management Act (“CZMA”) and more than thirty additional laws

14 not at issue in this lawsuit to “various border infrastructure projects” in the “Project 15 16 Area,” which is defined as “an approximately fifteen mile segment of the border within

17 the San Diego Sector that starts at the Pacific Ocean and extends eastward,” starting at

18 “the Pacific Ocean and extending to approximately one mile east of Border Monument 19 20 251.” (Dkt. No. 30-6, Cayaban Decl., Ex. 11, 82 Fed. Reg. 35,984-85.) Secretary Kelly

21 determined that the Project Area “is an area of high illegal entry.” (Id. at 35,985.)

22

Two projects are specified in the August 2 Waiver Determination. (Id. at 35,984-

23

24 85.) One project is the replacement of about 15 miles of existing primary fencing near

25 San Diego. (Id.) The second project is the construction of prototype border walls on the

26 eastern end of the secondary barrier near San Diego. (Id. at 35,984; Dkt. No. 18-2, Ds’

27

10

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1 Index of Exs., Ex. 14, Memorandum, Construction and Evaluation of Border Wall

2 Prototypes, U.S. Border Patrol, San Diego Sector, California (Sept. 25, 2017).)

3

4

On September 12, 2017, former DHS Acting Secretary Elaine Duke, issued a

5 Determination Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant

6 Responsibility Act of 1996, as Amended (“September 12 Waiver Determination” or 7 8 “Calexico Waiver”) in the Federal Register also invoking section 102(c)’s waiver

9 authority as to compliance with NEPA, the ESA and numerous other statutes not at issue

10 in this lawsuit to the Project Area in the El Centro Sector. (Dkt. No. 30-6, Cayaban 11 12 Decl., Ex. 12, 82 Fed. Reg. 42,829-30.) Secretary Duke determined that the “El Centro

13 Sector is an area of high illegal entry.” (Id. at 42,830.) The Determination seeks to build

14 a replacement fence in the El Centro Sector “along an approximately three mile segment 15 16 of the border that starts at the Calexico West Land Port of Entry and extends westward.”

17 (Id.)

18

Contracts for the prototype project were awarded on August 31 and September 7,

19

20 2017. (Dkt. No. 39-1, Cal. Ps’ Response to Ds’ SSUF, No. 10.) Construction for the

21 prototypes began on September 26, 2017 and was completed on October 26, 2017. (Dkt.

22 No. 49-4, Enriquez Decl. ¶ 11.) Construction of the Calexico three-mile replacement 23 24 fence was set to begin on February 15, 2018 while the San Diego Sector replacement

25 fence is scheduled for construction in August 2018. (Id. ¶¶ 10, 36.)

26 /// 27
28

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1

C. Procedural History

2

On September 6, 2017, Plaintiff Center for Biological Diversity (“Center

3

4 Plaintiff”) filed its operative second amended complaint (“SAC”) for declaratory and

5 injunctive relief against U.S. Department of Homeland Security (“DHS”); U.S. Customs

6 and Border Protection (“CBP”); and Elaine Duke, Acting Secretary of U.S. Department 7 8 of Homeland Security challenging the August 2 Waiver Determination under section 102

9 of IIRIRA concerning the two border wall construction projects located in the San Diego

10 Sector.5 (Dkt. No. 16, SAC.)

11

12

On November 21, 2017, Plaintiffs Defenders of Wildlife, Sierra Club and Animal

13 Legal Defense Fund (“Coalition Plaintiffs”) filed their operative first amended complaint

14 (“FAC”) against DHS; Elaine Duke, Acting Secretary of DHS; and United States of 15 16 America for declaratory and injunctive relief for violations of section 102 and

17 constitutional claims concerning the two border wall construction projects located in the

18 San Diego and El Centro Sectors based on the two Waiver Determinations.6 (Dkt. No. 19 20 26.)

21

22

23 5 Center Plaintiff alleges causes of action for (1) ultra vires violations of section 102(c); (2) violation of
the Take Care Clause under Article II, Section 3 of the U.S. Constitution; (3) violation of the separation

24 of powers of the U.S. Constitution; (4) violation of the Presentment Clause under Article I, Section 7 of

the U.S. Constitution; (5) violations of NEPA; (6) violations of ESA; and (7) violation of the Freedom
25 of Information Act (“FOIA”), and alternatively, violation of the Administrative Procedure Act (“APA”).

26

(Dkt. No. 16, Ctr. Ps’ SAC.) 6 The Coalition Plaintiffs’ FAC alleges (1) ultra vires agency action under section 102(c); (2) violation

27 of sections 102(a) and 102(b)(1)(C); (3) violation of the Presentment Clause under Article 1, Section 7

12

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1

On September 20, 2017, People of the State of California (“California”) and the

2 California Coastal Commission (collectively “California Plaintiffs”) filed a complaint 3 4 against United States of America; DHS; Acting Secretary of DHS Elaine Duke; CBP; and

5 Acting Commissioner of CBP Kevin K. McAleenan. (Dkt. No. 17cv1911, Dkt. No. 1.)

6 The complaint alleges declaratory and injunctive relief based on numerous violations of 7 8 the U.S. Constitution, and statutes relating to the border wall construction projects in the

9 San Diego and El Centro Sectors based on the two Waiver Determinations.7

10

In summary, all Plaintiffs8 allege the Secretaries’ Waiver Determinations are ultra

11

12 vires acts that are not authorized under section 102. Because the Waiver Determinations

13 are void based on the ultra vires acts of the Secretaries, Plaintiffs also assert violations of

14 NEPA, ESA, CZMA and the APA. Plaintiffs also allege the following violations of the 15 16 U.S. Constitution:

17

18

19 of the U.S. Constitution; (4) violation of non-delegation doctrine under Article I, Section 1 and Article

II, Section 1 of the U.S. Constitution; and (5) violations of Article III, the First Amendment right to
20 petition, the Tenth Amendment by removing concurrent jurisdiction of state courts, and due process

21

rights under the Fifth Amendment of the U.S. Constitution. (Dkt. No. 26.) 7 The California Plaintiffs’ complaint seeks declaratory and/or injunctive relief claiming Defendants (1)

22 failed to comply with NEPA and the APA; (2) failed to comply with the CZMA and the APA; (3) the
Border Wall Projects are not authorized by section 102 based on ultra vires actions; (4) the Secretary’s

23 waiver authority expired on December 31, 2008; (5) the Waivers are invalid because they fail to satisfy

section 102's requirements; (6) violation of Article III of the U.S. Constitution and the due process
24 clause of the Fifth Amendment; (7) violation of the separation of powers doctrine; 8) violation of Article

25

I, Section 1 of the U.S. Constitution; (9) violation of Article I, Section 3 of the U.S. Constitution; (10) violation of Article I, Section 7 of the U.S. Constitution; and (11) violation of the Tenth Amendment of

26 the U.S. Constitution.
8 Center Plaintiff only challenges the August 2, 2017 Waiver Determination while Coalition Plaintiffs

27 and California Plaintiffs challenge both the August 2, and September 12, 2017 Waiver Determinations.

13

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1

- Violation of Article I, Section 1 - the Non-Delegation Doctrine/Separation of

2

Powers (by all Plaintiffs)

3

4

- Violation of Article II, Section 3 - Take Care Clause (by Center Plaintiff)

5

- Violation of Article I, Sections 2 & 3 (by California Plaintiffs)

6

- Violation of Article I, Section 7 - Presentment Clause (by all Plaintiffs)

7

8

- Violation of Due Process, Article III, and First Amendment right to petition the

9

government (by Coalition Plaintiffs and California Plaintiffs)

10

- Violation of the Tenth Amendment - Concurrent State and Federal Jurisdiction

11

12

(by Coalition Plaintiffs)

13

- Violation of the Tenth Amendment (by California Plaintiffs)

14

On October 24, 2017, the Court granted the parties’ joint motion to consolidate the

15

16 three cases and the parties’ agreed upon briefing schedule on their cross-motions for

17 summary judgment. (Dkt. Nos. 21, 22.)

18

Prior to consolidation, on October 6, 2017, Defendants filed a motion to dismiss

19

20 Center Plaintiff’s second amended complaint which was converted to a motion for

21 summary judgment in the Court’s consolidation order. (Dkt. Nos. 18, 22.) On November

22 22, 2017, Center Plaintiff filed a cross-motion for summary judgment9 and an opposition 23

24

25 9 Center Plaintiff notes that its FOIA claim, Claim 7, is not subject to the cross-motions and will be

26 resolved either via settlement or separate briefing. (Dkt. No. 28-1 at 14 n. 1.) Defendants agree arguing
that the FOIA claim is not yet ripe for adjudication but also argue that the alternative APA claim

27 regarding the processing of the FOIA requests should be dismissed since FOIA, itself, provides an

14

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1 to Defendants’ motion for summary judgment. (Dkt. No. 28.) On December 20, 2017,

2 Defendants filed an omnibus brief that included their reply in support of their motion for 3 4 summary judgment and an opposition to Center Plaintiff’s motion for summary

5 judgment. (Dkt. No. 35.) On January 5, 2018, Center Plaintiff filed a reply to

6 Defendants’ opposition. (Dkt. No. 36.)

7

8

On November 22, 2017, Coalition Plaintiffs and the California Plaintiffs filed their

9 motions for summary judgment. (Dkt. Nos. 29, 30.) On December 20, 2017, all

10 Defendants filed an omnibus cross-motion for summary judgment and opposition to 11 12 Coalition and California Plaintiffs’ motions for summary judgment. (Dkt. No. 35.)

13

On January 5, 2018, the Coalition Plaintiffs and California Plaintiffs separately

14 filed their oppositions to Defendants’ cross-motion for summary judgment and replies to 15 16 their motions. (Dkt. Nos. 38, 39.) On January 23, 2018, Defendants filed their reply to

17 their cross-motion for summary judgment. (Dkt. No. 42.)

18 II. 19
20

ANALYSIS A. Legal Standard on Motion for Summary Judgment

21

Federal Rule of Civil Procedure 56 empowers the Court to enter summary

22 judgment on factually unsupported claims or defenses, and thereby “secure the just, 23 24 speedy and inexpensive determination of every action.” Celotex Corp. v. Catrett, 477

25

26
adequate remedy. (Dkt. No. 35-1 at 94-95.) The Court declines to address the alternative APA claim

27 based on the FOIA requests until after the FOIA claim, itself, is resolved.

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1 U.S. 317, 325, 327 (1986). Summary judgment is appropriate if the “pleadings,

2 depositions, answers to interrogatories, and admissions on file, together with the 3 4 affidavits, if any, show that there is no genuine issue as to any material fact and that the

5 moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A fact is

6 material when it affects the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 7 8 U.S. 242, 248 (1986). “Where the record taken as a whole could not lead a rational trier

9 of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita

10 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

11

12

B. Article III Standing as to the State of California

13

The State of California argues it has Article III standing because it will suffer

14 injury to its real property that it owns and manages adjacent to the border wall projects.10 15 16 It contends that the Waiver Determinations infringe on California’s procedural and

17 sovereign rights in creating and enforcing its own laws and obtaining benefits provided

18 under NEPA and the APA. Defendants respond that California has not carried its burden 19 20 to establish standing as to each of its numerous claims and has not demonstrated that the

21 Waiver Determinations impact state laws which would be enforceable in connection with

22 the projects at issue. 23

24

25

26 10 Initially, California argued it has a concrete and particularized interest in protecting its natural,
recreational, agricultural, historical, and cultural resources for the use, enjoyment and benefit of its

27 residents but did not reassert these interests in its reply.

16

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1

Article III, Section 2 of the United States Constitution requires that a plaintiff have

2 standing to bring a claim. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). 3 4 In order “to satisfy Article III’s standing requirements, a plaintiff must show (1) it has

5 suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or

6 imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the 7 8 challenged action of the defendant; and (3) it is likely, as opposed to merely speculative,

9 that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v.

10 Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000) (citing Lujan, 504 U.S. 11 12 at 560–61). The party seeking federal jurisdiction has the burden of establishing its

13 existence. Lujan, 504 U.S. at 561. “A plaintiff must demonstrate standing for each claim

14 he seeks to press and for each form of relief that is sought.” Davis v. Fed. Election 15 16 Comm’n, 552 U.S. 724, 734 (2008).

17

States have a “procedural right” and “quasi-sovereign interests” in protecting its

18 natural resources, such as air quality. Massachusetts v. EPA, 549 U.S. 497, 520 (2007) 19 20 (“EPA’s steadfast refusal to regulate greenhouse gas emissions presents a risk of harm to

21 Massachusetts that is both ‘actual’ and ‘imminent.’”). In Georgia v. Tennessee Copper

22 Co., 206 U.S. 230, 237 (1907), the State of Georgia filed an action to protect its citizens 23 24 from air pollution originating from outside its borders and the Court asserted that a state,

25 in its capacity as a quasi-sovereign, has an “interest independent of and behind the titles

26 of its citizens, in all the earth and air within its domain. It has the last word as to whether

27

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1 its mountains shall be stripped of their forests and its inhabitants shall breathe pure air.”

2 Id. 3
4

Here, the parties dispute whether California has demonstrated an injury in fact,

5 and whether the injury in fact is traceable to the Waiver Determinations. As held by the

6 U.S. Supreme Court, California has a procedural right and quasi-sovereign right in the 7 8 environmental protections afforded by NEPA and the APA. See id. California provided

9 declarations from experts detailing the possible harm to the Tijuana Estuary and harm to

10 rare, threatened or endangered species. (Dkt. No. 30-7, Clark Decl.; Dkt. No. 30-8, 11 12 Vanderplank Decl.; Dkt. No. 30:9, Delaplaine Decl.) Eight prototype walls have already

13 been constructed demonstrating that the injury is actual and the El Centro Sector border

14 fence replacement project, which is currently undergoing consultation and may have 15 16 already begun construction, is also imminent. The Court concludes that California has

17 demonstrated an injury-in-fact that is concrete and particularized, and actual or imminent.

18

Moreover, California argues it has a legally protected sovereign interest in creating

19

20 and enforcing its own laws. The Waiver Determinations will preclude the enforcement of

21 California’s laws which will affect its sovereign interests. Defendants object because

22 Plaintiffs merely string cite to eight state code or regulations without explaining how 23 24 these provisions apply to the projects at issue. But, as noted by Plaintiff, the Waiver

25 Determinations do not identify which California law or regulation Defendants are

26 waiving and as an example it provides some provisions where the waiver would bar

27

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1 California’s enforcement of its laws as to DHS, its contractors, or to the State’s

2 permitting authority or other legal actions.

3

4

It is not disputed that the Waiver Determinations waive all legal requirements and

5 include related state laws. (See Dkt. No. 30-6, Cayaban Decl., Ex. 11, 82 Fed. Reg.

6 35,984-85; id., Ex. 12, 82 Fed. Reg. 42,829-30.) Defendants do not deny that California 7 8 state laws are being waived. The Court agrees with California that a bar to enforcing its

9 own state laws related to the border wall projects is an injury in fact that supports Article

10 III standing. The Court concludes that California has Article III standing.

11

12

C. Whether the Court has Jurisdiction Over Plaintiffs’ Non-Constitutional

13 Claims based on Ultra Vires Acts of the Secretary of the DHS

14

Defendants contend that the Court lacks jurisdiction to consider Plaintiffs’ non-

15

16 constitutional claims, including whether the Secretaries’ actions concerning the two

17 Waiver Determinations are ultra vires. They explain that section 102 explicitly expresses

18 Congress’ intent to bar the district court from exercising jurisdiction over any claims 19 20 arising from the Secretary of DHS’s waiver determination except for a constitutional

21 violation. Plaintiffs argue that the Court may consider whether the Waivers exercised by

22 the Secretaries constitute ultra vires acts as they exceed the authority granted to the 23 24 Secretaries under section 102; therefore, they contend section 102(c)(2)’s judicial review

25 bar on non-constitutional claims does not apply. For the reasons stated below, the Court

26 finds that it may consider whether the Secretaries have violated any clear and mandatory

27

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1 statutory obligations set forth in section 102. Finding that there are no such violations,

2 the Court upholds the jurisdictional bar and concludes that it does not have the 3 4 jurisdiction to hear any claims other than constitutional claims.

5

Section 102(c)(2)(A) provides that the “district courts of the United States shall

6 have exclusive jurisdiction to hear all causes or claims arising from any action 7 8 undertaken, or any decision made, by the Secretary of Homeland Security pursuant to

9 paragraph (1) [the waiver provision]. A cause of action or claim may only be brought

10 alleging a violation of the Constitution of the United States. The court shall not have 11 12 jurisdiction to hear any claim not specified in this subparagraph.” 8 U.S.C. §

13 1103(c)(2)(A).

14

As a starting point, there is a “strong presumption that Congress intends judicial

15

16 review of administrative action.” Bowen v. Michigan Acad. of Family Physicians, 476

17 U.S. 667, 670 (1986); El Paso Natural Gas Co. v. United States, 632 F.3d 1272, 1276

18 (D.C. Cir. 2011) (quoting Bowen, 476 U.S. at 670) (“When considering whether a statute 19 20 bars judicial review, ‘[w]e begin with the strong presumption that Congress intends

21 judicial review of administrative action.’”). In order to overcome the strong presumption,

22 there must be “clear and convincing” evidence of a contrary legislative intent. Bowen, 23 24 476 U.S. at 671-72. The strong presumption may be overcome by “specific language or

25 specific legislative history that is a reliable indicator of congressional intent,” or a

26

27

20

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1 “specific congressional intent to preclude judicial review that is ‘fairly discernible’ in the

2 detail of the legislative scheme.” Id. at 673.

3

4

In this case, the Center Plaintiff does not dispute that the presumption favoring

5 judicial review has been overcome by the express language of section 102(c)(1) and does

6 not challenge Defendants’ argument on this issue. Instead, all Plaintiffs argue that the 7 8 August 2, 2017 and September 12, 2017 Waiver Determinations constitute ultra vires acts

9 of the Secretary that do not fall under section 102 because the Waivers are not authorized

10 by sections 102(a) or (b) and were not decisions made “pursuant to” section 102(c)(1). 11 12 Therefore, according to Plaintiffs, section 102(c)(2) does not apply, and the Waiver

13 Determinations are subject to review by the Court. Defendants respond that Plaintiffs

14 cannot bypass the jurisdictional bar by framing their claims as ultra vires challenges 15 16 when judicial review is expressly prohibited. They argue that the Court should consider

17 the plain meaning of section 102(c)(2) and that should be the end of the matter.

18

Here, Congress expressly barred the district court’s review of non-constitutional

19

20 claims under section 102(c)(2), and this provision rebuts the strong presumption favoring

21 judicial review of administrative actions. However, the United States Supreme Court has

22 identified a narrow exception to an express statutory bar on judicial review when there is 23 24 a claim that an agency acted beyond its statutory authority. See Leedom v. Kyne, 358

25

26

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1 U.S. 184 (1958);11 Bd. of Governors of Fed. Reserve Sys. v. MCorp. Fin., Inc., 502 U.S.

2 32 (1991); see also Dart v. United States, 848 F.2d 217 (D.C. Cir. 1988).

3

4

In Kyne, the Supreme Court held that a district court had jurisdiction to review a

5 non-final agency order “made in excess of its delegated powers and contrary to a specific

6 prohibition in the [National Labor Relations Act].” Kyne, 358 U.S. at 188. The Kyne 7 8 court found that a National Labor Relations Board’s (“NLRB”) determination that a unit

9 involving both professional and non-professional employees was appropriate for

10 collective bargaining purposes was in excess of delegated powers because it was in direct 11 12 conflict with the provisions of § 9(b)(1) of the National Labor Relations Act (“NLRA”)

13 dictating that it “shall not” do so “unless a majority of such professional employees vote

14 for inclusion in such unit.” Kyne, 358 U.S. at 185. Consequently, the district court had 15 16 jurisdiction to set aside a certification of the NLRB where that agency had refused to poll

17 professional employees before combining them in a bargaining unit with non-

18 professional employees. Id. at 188-89. In the ordinary case, a decision certifying a 19 20 bargaining unit is not a final order that can be reviewed but the Court explained that first,

21 the “suit [was] not one to ‘review,’ in the sense of that term as used in the Act, a decision

22 of the Board made within its jurisdiction. Rather, it [was] one to strike down an order of 23 24 the Board made in excess of its delegated powers and contrary to a specific prohibition in

25

26
11 Plaintiffs note that the ability to bring an ultra vires claim was first recognized by the Supreme Court

27 decades earlier in American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 110 (1902).

22

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1 the Act.” Id. at 188. Second, because, in the ordinary case, only an employer can initiate

2 an unfair labor practice charge, and ultimately a reviewable final order, by refusing to 3 4 bargain after an election, the aggrieved employees in this case had “no other means,

5 within their control . . . to protect and enforce” their statutory rights. Id. at 190. In other

6 words, “absence of jurisdiction of the federal courts would mean a sacrifice or 7 8 obliteration of a right which Congress has given professional employees.” Id. In

9 conclusion, the Court stated it “cannot lightly infer that Congress does not intend judicial

10 protection of rights it confers against agency action taken in excess of delegated powers.” 11 12 Id.

13

MCorp Fin., Inc., relied on by Defendants, involved an express bar on judicial

14 review, and the Court found the Fifth Circuit erred when it held that it had jurisdiction to 15 16 consider the merits of MCorp’s challenge to the Board of Governors of the Federal

17 Reserve System (“Board”) and held that the Financial Institutional Supervisory Act’s

18 (“FISA”) preclusion provision barred judicial review of pending Board administrative 19 20 actions. MCorp Fin., Inc., 502 U.S. at 43-44.

21

In its analysis, the Court distinguished its ruling from Kyne noting two differences.

22 First, the Court noted that “central” to its decision in Kyne was “the fact that the Board’s 23 24 interpretation of the Act would wholly deprive the union of a meaningful and adequate

25 means of vindicating its statutory right.” Id. at 43. In MCorp. Fin., Inc., FISA provided

26 MCorp with a meaningful and adequate opportunity for judicial review by challenging

27

23

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1 the Board’s findings. Id. at 43-44. Second, the Court emphasized “the clarity of the

2 congressional preclusion of review in FISA” where Congress clearly stated: “no court 3 4 shall have jurisdiction to affect by injunction or otherwise the issuance or enforcement of

5 any [Board] notice or order under this section, or to review, modify, suspend, terminate,

6 or set aside any such notice or order.” Id. at 44 (quoting 12 U.S.C. § 1818(i)(1)). In 7 8 Kyne, the statutory provision implied, by its silence, a preclusion of review. Id. In

9 contrast, FISA provides “clear and convincing evidence that Congress intended to deny

10 the district court’s jurisdiction to review and enjoin the Board’s ongoing administrative 11 12 proceedings.” Id. The Court reversed the decision by the Fifth Circuit and held that it

13 did not have jurisdiction to consider MCorp’s challenge. Id. at 44-45.

14

Next, in Dart, relied on by Plaintiffs, the D.C. Circuit held that the Secretary of

15

16 Commerce’s reversal of the administrative law judge’s decision exceeded his authority

17 under the Export Administration Act (“EAA”). Dart, 848 F.2d at 231. The EAA

18 provides two finality clauses that certain “functions exercised under the Act” were 19 20 excluded from certain sections of the APA and the “Secretary shall, in a written order,

21 affirm, modify, or vacate the decision of the administrative law judge. The order of the

22 Secretary shall be final and is not subject to judicial review.” Id. at 221. Because the 23 24 Secretary did not “affirm, modify or vacate” the ALJ’s decision but instead reversed, it

25 was not among the orders placed beyond review of the finality provision. Id. at 227. The

26 D.C. Circuit held that review is available when the Secretary exercises functions that are

27

24

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1 not specified in the statute. Id. at 221. In explaining its ruling, it stated the even “where

2 Congress is understood generally to have precluded review, the Supreme Court has found 3 4 an implicit but narrow exception, closely paralleling the historic origins of judicial review

5 for agency actions in excess of jurisdiction.” Id. The court’s analysis focused on the

6 plain language of the statute, the structure of the statutory scheme, the legislative history, 7 8 and the nature of the administrative action involved. Id. at 224-27. It concluded that the

9 presumption of judicial review applied in that case, explaining that the finality clause did

10 not preclude judicial review of facial violations of the statute. Id. at 222 (citing Kyne, 11 12 358 U.S. 184).

13

The Dart court recognized that “[w]hen an executive acts ultra vires, courts are

14 normally available to reestablish the limits on his authority.” Id. at 224. However, the 15 16 court noted that the “exception for review of facial violations should remain narrow.”

17 Id. at 231. It also explained that “Congress’ finality clause must be given effect, and an

18 agency action allegedly ‘in excess of authority’ must not simply involve a dispute over 19 20 statutory interpretation or challenged findings of fact.” Id. The court recognized that

21 invoking the exception is “extraordinary” noting “that to justify such jurisdiction, there

22 must be a ‘specific provision of the Act which, although it is [ ]clear and mandatory, [ ]’ 23 24 was nevertheless violated.” Id. (quoting Council of Prison Locals v. Brewer, 735 F.2d

25 1497, 1501 (D.C. Cir. 1984) (citation omitted)). The court in Dart concluded that the

26

27

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1 “requirement that the Secretary of Commerce ‘affirm, modify or vacate’ ALJ

2 enforcement decisions was ‘clear and mandatory’ and was nevertheless violated.” Id.

3

4

The exception to the statutory bar on judicial review is an “extremely narrow one”

5 and “extraordinary.” Nat’l Air Traffic Controllers Ass’n AFL–CIO v. Fed. Serv.

6 Impasses Panel, 437 F.3d 1256, 1263 (D.C. Cir. 2006); American Airlines, Inc. v. 7 8 Herman, 176 F.3d 283, 293 (5th Cir. 1999) (courts “have interpreted Kyne as sanctioning

9 [review] in a very narrow situation in which there is a ‘plain’ violation of an

10 unambiguous and mandatory provision of the statute.”). The D.C. Circuit described that 11 12 a Kyne claim is “essentially a Hail Mary pass—and in court as in football, the attempt

13 rarely succeeds.” Nyunt v. Chairman, Broad. Bd. of Governors, 589 F.3d 445, 449 (D.C.

14 Cir. 2009).

15

16

In sum, in order for the Kyne exception to apply, a plaintiff must satisfy the

17 following two factors: 1) that the agency acted “in excess of its delegated powers”

18 contrary to “clear and mandatory statutory language” and 2) “the party seeking review 19 20 must be ‘wholly deprive[d] . . . of a meaningful and adequate means of vindicating its

21 statutory rights.” Pac. Mar. Ass’n v. NLRB, 827 F.3d 1203, 1208 (9th Cir. 2016)

22 (citations omitted); Nat’l Air Traffic Controllers, 437 F.3d at 1263 (the Kyne exception 23 24 can apply to cases involving “either negative or positive statutory commands.”).

25

Courts have cautioned that “review of an ‘agency action allegedly in excess of

26 authority must not simply involve a dispute over statutory interpretation.’” Herman, 176

27

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1 F.3d at 293 (quoting Kirby Corp. v. Pena, 109 F.3d 258, 269 (5th Cir. 1997)); Dart, 848

2 F.2d at 231 (noting that facial challenges to agency action as allegedly “‘in excess of 3 4 authority’ must not simply involve a dispute over statutory interpretation or challenged

5 findings of fact.”); see also Nebraska State Legislative Bd., United Transp. Union v.

6 Slater, 245 F.3d 656, 659-60 (8th Cir. 2001). For example, in Baxter Healthcare Corp. v. 7 8 Weeks, 643 F. Supp. 2d 111 (D.D.C. 2009), the court explained that Health and Human

9 Services (“HHS”) has the “authority under the Medicare statute to determine whether a

10 product is a single source drug, a biological, or a multiple source drug.” Id. at 115 n. 2. 11 12 Whether HHS made the correct determination about [the drug] is a “dispute over

13 statutory interpretation” that does not rise to the level of an ultra vires claim.” Id.

14

Contrary to Defendants’ argument that the Court cannot even consider whether the

15

16 two Waivers were ultra vires acts, courts have consistently conducted judicial review of

17 facial, ultra vires claims despite a statutory bar on judicial review.12 See Lindahl v. OPM,

18 470 U.S. 768, 789, 791 (1985) (statutory bar did not bar review of alleged errors of law 19 20 or procedure but it did bar review of factual determinations); Dart, 848 F.2d at 225;

21 Staacke v. U.S. Sec’y of Labor, 841 F.2d 278, 281 (9th Cir. 1988) (noting review is

22

23

24

25

12 The parties dispute the origins of ultra vires review. Coalition Plaintiffs claim courts have inherent authority to review ultra vires jurisdiction, (Dkt. No. 29-1 at 19; Dkt. No. 38 at 7), while Defendants

26 argue that ultra vires review is an application of the rebuttable presumption of congressional intent in
favor of judicial review. (Dkt. No. 35-1 at 35; Dkt. No. 42 at 20.) A decision on the origins of ultra

27 vires review is not dispositive and the Court declines to resolve this issue.

27

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1 available “where defendant is charged with violating a clear statutory mandate or

2 prohibition” even where a statute “absolutely bars judicial review”); Oestereich v. 3 4 Selective Serv. Sys. Local Bd. No. 11, 393 U.S. 233 (1968) (despite an express

5 preclusion of pre-induction review, the Court reversed the plaintiff’s draft classification);

6 Spencer Enters., Inc. v. United States, 345 F.3d 683, 689 (9th Cir. 2003) (courts retain 7 8 jurisdiction to review whether a particular decision of the Attorney General is ultra vires

9 despite the discretion granted to the Attorney General).

10

Even the cases relied upon by Defendants fail to support their position. In Staacke,

11

12 the Ninth Circuit stated that on a claim that the defendant violated a clear statutory

13 mandate or prohibition, the court may consider the claim despite a judicial bar but its

14 “task is limited to determining whether the statute in question contains a clear command 15 16 that the Secretary has transgressed.” Staacke, 841 F.2d at 282. After determining there

17 was no violation of a clear statutory mandate, the Ninth Circuit upheld the bar on judicial

18 review. Id. Similarly, in Gebhardt v. Nielson, 879 F.3d 980, 989 (9th Cir. 2018), the 19 20 Ninth Circuit affirmed a judgment of the district court, which dismissed an action based

21 on a judicial bar on the Secretary’s discretion in making “no risk” determinations. Id. at

22 989. The Secretary of DHS denied the plaintiff’s petitions for permanent resident status 23 24 filed on behalf of his wife and his wife’s three children pursuant to the Adam Walsh

25 Child Protection and Safety Act of 2006 based on the plaintiff’s prior state conviction for

26 committing a “lewd and lascivious act with a child under the age of fourteen.” Id. at 983-

27

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1 84. The Ninth Circuit stated that it may review the plaintiff’s claims to the extent he

2 challenged the scope of the Secretary’s discretion. Id. After determining that the claimed 3 4 action did not exceed the Secretary’s discretion, the Ninth Circuit, upheld the judicial bar

5 on the Secretary’s discretionary “no risk” determination. Id. at 5. These cases

6 demonstrate that the Court may consider whether there has been a plain violation of an 7 8 unambiguous and mandatory provision of law despite a statutory bar on judicial review.

9

The Court concludes that it may conduct judicial review of facial, ultra vires

10 claims despite a statutory bar on judicial review. Accordingly, the Court next considers 11 12 whether the Secretaries acted in excess of their delegated powers.

13

D. Whether the Waiver Determinations Are Ultra Vires Acts under Section

14 102(c)’s Waiver Authority

15

16

Defendants contend that the DHS Secretaries’ actions are ultra vires only if they

17 are in excess of delegated powers that are contrary to “clear and mandatory” statutory

18 language as required in Kyne.13 Plaintiffs reply that the Kyne line of cases do not apply 19 20 and, instead, the Dart test applies so that the government has the burden to show “clear

21 and convincing” evidence that Congress foreclosed its jurisdiction over their case. Dart,

22 848 F.3d at 224. However, Plaintiffs are confusing the standard that is required to 23

24

25

26 13 A Ninth Circuit panel has also referred to the “clear and mandatory” standard as “unambiguous and
mandatory” provision of a statute. See Charlie Rossi Ford, Inc. v. Price, 564 F.2d 372, 373 (9th Cir.

27 1977).

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1 overcome the presumption that Congress intends judicial review of administrative

2 actions, a “clear and convincing” standard, with the “clear and mandatory” statutory 3 4 language requirement for application of the Kyne exception to the statutory bar of

5 judicial review. In fact, the court in Dart applied the Kyne test when it held that the

6 Secretary of Commerce facially violated a specific provision of the EAA which was 7 8 “clear and mandatory.” Dart, 848 F.2d at 231. An agency’s action is ultra vires if it

9 contravenes “clear and mandatory” statutory language. Pac. Mar. Ass’n, 827 F.3d at

10 1208 (quoting Kyne, 358 U.S. at 188); Dart, 848 F.2d at 231; Staacke, 841 F.2d at 281. 11 12 In order to make that determination, courts look to the language of the statute and its

13 legislative history. See Int’l Ass’n of Tool Craftsmen v. Leedom, 276 F.2d 514, 516

14 (D.C. Cir. 1960) (“statutory language itself and the legislative history” support invoking 15 16 district court’s equity jurisdiction to consider whether Board violated a “clear and

17 mandatory” statutory prohibition); Teamsters, Chauffeurs, Helpers and Delivery Drivers,

18 Local 690 v. NLRB, 375 F.2d 966, 971 (9th Cir. 1967) (a court looks to statutory text and 19 20 legislative history to determine if the Board violated a “clear and mandatory” statutory

21 provision).

22

Here, in order for the narrow exception of Kyne to apply, Plaintiffs must show that

23

24 Secretaries Kelly and Duke acted in excess of their delegated powers by showing that the

25 issuance of the two Waiver Determinations was in contravention of “clear and

26 mandatory” language contained in section 102. See Pac. Mar. Ass’n, 827 F.3d at 1208;

27

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1 Dart, 848 F.2d at 222 (The question “whether an agency has acted ‘in excess of its

2 delegated powers’ has alternatively been phrased as whether the agency action ‘on its 3 4 face’ violated a statute.”). Plaintiffs must also show that barring judicial review would

5 deprive them of a “meaningful and adequate means of vindicating [their] statutory

6 rights.” Id.

7

8

1. Violation of a “Clear and Mandatory” Statutory Provision

9

The Court now turns to whether Plaintiffs have established that the Secretaries

10 facially violated a specific provision of section 102 which was “clear and mandatory.” .

11

12

a. Whether Section 102(c) Waiver Provision Applies Only to

13

Projects Identified in Section 102(b)

14

Plaintiffs argue that that the statutory authority to waive laws under section 102(c)

15

16 does not apply to the two border wall projects because they were not specifically

17 mandated by Congress under section 102(b). Further, when construed as a whole, the

18 two projects fall outside the limits of the waiver authority because Congress did not 19 20 intend section 102(c) to apply to projects beyond those specifically mandated in section

21 102(b). Defendants disagree arguing that the waiver provision applies to section 102 as a

22 whole, and is not limited to only Congress’ priorities identified in section 102(b). Upon 23 24 review of the statute and legislative history, both interpretations are plausible. As such,

25 there is no violation of “clear and mandatory” language with respect to the application of

26 the waiver. 27
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1

Statutory construction always begins with the “language of the statute itself” or

2 “plain meaning of the statute” and if unambiguous, that meaning controls. Brock v. 3 4 Writers Guild of America, West, Inc., 762 F.2d 1349, 1353 (9th Cir. 1985); Transwestern

5 Pipeline Co., LLC v. 17.19 Acres of Prop. Located in Maricopa Cnty., 627 F.3d 1268,

6 1271 (9th Cir. 2010). If the language is not clear, then a court looks at the legislative 7 8 history. Brock v. Writers Guild of America, West, Inc., 762 F.2d 1349, 1353 (9th Cir.

9 1985); Avendano-Ramirez v. Ashcroft, 365 F.3d 813, 816 (9th Cir. 2004). Legislative

10 history is also looked at if the statutory language is clear but there is “clearly expressed 11 12 legislative intention” which is contrary to the plain meaning of the statute. Heppner v.

13 Alyeska Pipeline Serv. Co., 665 F.2d 868, 871 (9th Cir. 1981).

14

Section 102(c) states,

15

16

(1) In general.--Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive all legal requirements

17

such Secretary, in such Secretary’s sole discretion, determines necessary to

18

ensure expeditious construction of the barriers and roads under this section. Any such decision by the Secretary shall be effective upon being published

19

in the Federal Register.

20 8 U.S.C. § 1103(c) (emphasis added).

21

22

Defendants argue that the words “under this section” refer to section 102 as a

23 whole and are not limited to subsection 102(b). This includes actions under any part of

24 section 102 that meet section 102(c)(1)’s criteria. In support, they cite to the Guide to 25 26 Legislative Drafting which explains that section 102(a) is a “subsection”; section

27

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1 102(b)(1) is a “paragraph” and section 102(b)(1)(A) is a “sub-paragraph.” See House

2 Office of the Legislative Counsel, Guide to Legislative Drafting. Therefore, “this 3 4 section” in section 102(c)(1) cannot be read to refer exclusively to 102(b) but applies to

5 the entirety of section 102.

6

Plaintiffs respond that the waiver authority must be interpreted as limited to

7

8 specific border barriers specified in section 102(b) because Defendants’ reliance on the

9 standardized format interpretation of “this section” is flawed. They argue that

10 Defendants’ position produces an absurd result in interpreting sections 102(b)(2)-(4). 11 12 These sections address the procedures for obtaining easements and appropriations, and

13 refer to and apply only to “this subsection” which is section 102(b). According to

14 Defendants’ interpretation, the procedures and directives regarding easements and 15 16 appropriations would not apply to section 102(a) border projects and without those

17 provisions, a border barrier could not be built. Moreover, the terms “section” and

18 “subsection” are used inconsistently as section 102(b)(1)(A) uses the phrase “[i]n 19 20 carrying out subsection (a)” while section 102(b)(1)(B) & (C) uses the phrase “[i]n

21 carrying out this section” under section 102(b).

22

Defendants reply that “when Congress identifies certain specific applications of a

23

24 general grant of authority, those specific requirements cannot generally be understood to

25

26

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1 prohibit all other applications of the general authority.” (Dkt. No. 18-1 at 30.14) Second,

2 a reading that limits section 102(c) to section 102(b) would render section 102(a) 3 4 superfluous. Third, the subsequent amendments demonstrate that section 102(b)(1)

5 merely identified Congress’ shifting priorities and specific areas for action. Finally,

6 Defendants argue that Plaintiffs cannot overcome the plain meaning of the statute by 7 8 pointing out that Congress, in passing section 102 in 1996 and the amendment to section

9 102(c) in 2005, was primarily focused on portions of fencing near San Diego. Congress

10 could have limited the provision to construction near San Diego; instead, it established a 11 12 broad general mandate in section 102(a) that is not geographically limited and used the

13 words “under this section” to extend section 102(c) to the entire section.

14

Certainly, section 102 is not a model of legislative precision. Given the

15

16 inconsistencies in the use of “this section”, the Court looks to the legislative history for

17 further guidance. The parties rely on the legislative history that supports their respective

18 positions. Defendants cite to Conference Report 109-72 to support their interpretation 19 20 because the Report broadly states it “provides for construction and strengthening of

21 barriers along U.S. land borders.” (Dkt. No. 18-2, Ds’ Index of Exs., Ex. 2, H.R. Rep.

22 109-72 at p. 170 (May 3, 2005). However, the Conference Report also references section 23 24 102(b) as to the waiver’s application to the 14 miles of barriers and roads, mandated by

25

26

27 14 Pages numbers to the docket are based on the CM/ECF pagination.
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1 1996 IIRIRA along the border near San Diego that had been halted due to environmental

2 challenges. Id.

3

4

Defendants argue that the breadth of section 102(c) is noted by comments made by

5 representatives who were opposed to the 2005 REAL ID Act which were not contradicted

6 by its sponsors. (See Dkt. No. 18-2, Ds’ Index of Exs., Ex. 6, 151 Cong. Rec. H459 (Feb. 7 8 9, 2005) (statement of Cong. Jackson-Lee) (“[The waiver provision is] so broad that it

9 would not just apply to the San Diego border fence that is the underlying reason for this

10 provision. It would apply any other barrier or fence that may come about in the future.”); 11 12 id., 151 Cong. Rec. H454 (Feb. 9, 2005) (statement of Cong. Conyers) (“waiving all

13 Federal laws concerning construction of barriers and fences anywhere within the United

14 States”); id., 151 Cong. Rec. H554 (Feb. 10, 2005) (statement of Cong. Harman) (“[T]he 15 16 reach is beyond the San Diego border. According to the language in this legislation, it is

17 all areas along and in the vicinity of our international borders with Mexico and

18 Canada.”); id., 151 Cong. Rec. H556 (Feb. 10, 2005) (memorandum by Cong. Farr) 19 20 (“[waiver authority] seem[s] to apply to all the barriers that may be constructed under the

21 authority of § 102 of IIRIRA (i.e., barriers constructed in the vicinity of the border and

22 the barrier that is to be constructed near the San Diego area)”); id., 151 Cong. Rec. H559 23 24 (statement of Cong. Udall) (objecting to bill because “the language of the bill is not

25 limited to the construction of a fence in [San Diego]” but instead includes “all laws for all

26 U.S. borders”). Defendants note the concerns of the breadth of section 102 repeated by

27

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1 opponents at least five times in two days were not merely “fears and doubts of the

2 opposition” that can be dismissed.

3

4

Defendants also point to a comment made by a member of Congress in 1996

5 addressing concern that section 102(c) extended beyond San Diego. (See Dkt. No. 18-2,

6 Ds’ Index of Exs., Ex. 4, 142 Cong. Rec. H11076 (Sept. 25, 1996), (statement of Rep. 7 8 Saxton) (“[Section 102(c)] is intended to address an issue that has to do with the

9 California-Texas-Mexico border; however, the way this section is written, the exemption

10 applies to the entire border of the United States, not just the California-Mexico border 11 12 near San Diego.”).

13

On the other hand, Plaintiffs rely on the legislative history which shows the

14 sponsor’s and supporters’ intent to limit the expanded waiver authority to the San Diego 15 16 fencing under section 102(b). The bill’s author, Representative Sensenbrenner, described

17 the amendment as “the REAL ID Act will waive Federal laws to the extent necessary to

18 complete gaps in the San Diego border security fence, which is still stymied 8 years after 19 20 congressional authorization. Neither the public safety nor the environment are

21 benefitting from the current stalemate.” (Dkt. No. 18-2, Ds’ Index of Exs., Ex. 6, 151

22 Cong. Rec. H454 (Feb. 9, 2005).) Supporters of the bill also made statements limiting 23 24 the amendment to the fence in San Diego. (Id., 151 Cong. Rec. H453-471 (Feb. 9, 2005)

25 (Statement of Rep. Hoekstra) (“H.R. 418 provides the Secretary of Homeland Security

26

27

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1 with authority to waive environmental laws, so that the border fence running 14 miles

2 east from the Pacific Ocean at San Diego may finally be completed.”).)

3

4

“The fears and doubts of the opposition are no authoritative guide to the

5 construction of legislation. It is the sponsors that we look to when the meaning of the

6 statutory words is in doubt.” NLRB v. Fruit Packers, 377 U.S. 58, 66 (1964) (citing 7 8 Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 394-95 (1951)). “In their

9 zeal to defeat a bill, they understandably tend to overstate its reach.” Id. In this case,

10 even though the Court has looked at the sponsors’ comments to determine the meaning of 11 12 the statute, the sharp contrast in the legislative history statements and plausible

13 interpretations on both sides do not provide the Court with definitive guidance as to the

14 breadth of section 102(c).

15

16

Each side offers additional plausible interpretations to support their position. For

17 example, since 2005, the waiver provision has been invoked five times in order to comply

18 with the specific mandates of the various amendments to section 102(b). See 70 Fed. 19 20 Reg. 55,622-02 (Sept. 22, 2005)15 (concerning completion of section 102(b) mandated in

21

22

23

15 In the 2005 waiver determination, former DHS Secretary Michael Chertoff noted that nine years had
24 passed since Congress specifically sought the construction of 14 miles of building second and third

25

fences to the existing reinforced fence under section 102(b). Therefore, in order to expedite the completion of section 102(b) of IIRIRA, he invoked the waiver provision in section 102(c) for “all

26 federal, state, or other laws, regulations and legal requirements” related to the construction. See 70 Fed.
Reg. 55,622-02 (Sept. 22, 2005). The impetus for broadening section 102(c) to all legal requirements

27 was the lengthy delay caused by challenges made by environmental groups.

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1 1996); 72 Fed. Reg. 2,535-01 (Jan. 19, 2007); 72 Fed. Reg. 60,870-01 (Oct. 26, 2007); 72

2 Fed. Reg. 10,077-01 (Apr. 8, 2008); 72 Fed. Reg. 19078-01 (Apr. 8, 2008). These 3 4 waivers indicate that their use was limited to the mandates of section 102(b). However,

5 Defendants point out that section 102(a)’s general mandate is broad and geographically

6 includes “the United States border.” This was confirmed by a district court in Save Our 7 8 Heritage where it concluded that even though Congress did not include San Diego when

9 section 102(b) was amended by the 2006 Fence Act, the Secretary’s general authority to

10 construct border barriers under section 102(a) is broad, does not include any geographical 11 12 restrictions and authorized the San Diego barrier project even though it was included in

13 the prior version of section 102(b) of the 2005 REAL ID Act. Save Our Heritage Org. v.

14 Gonzalez, 533 F. Supp. 2d 58, 61 (D.D.C. 2008). Even though San Diego was included 15 16 in section 102(b) in the REAL ID Act, the district court’s reasoning to conclude that the

17 Secretary had authority to construct the San Diego barrier was based on the broad

18 provision of section 102(a), not because it was mandated in the prior version. Id.

19

20

Plaintiffs also cite to Judge Burns’s decision in Sierra Club v. Ashcroft, Case No.

21 04cv272-LAB(JMA), 2005 WL 8153059 (S.D. Cal. Dec. 13, 2005) where the plaintiffs

22 challenged the Secretary’s waiver determination in September 2005 invoked pursuant to 23 24 the 2005 REAL ID Act for the border fence construction of the Triple Fence Project.

25 They note that the court repeatedly emphasized the limitation of the waiver to the

26 “narrow purpose of expeditious completion of the Triple Fence authorized by the

27

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1 IIRIRA.” Id. at 5. However, Plaintiffs were challenging the waiver determination to

2 complete the project that was specifically authorized in section 102(b), and therefore, the 3 4 Court’s language focused on section 102(b). As such, the Sierra Club case is not as

5 helpful as Plaintiffs propose.

6

The parties’ varying plausible interpretations concerning the scope of section

7

8 102(c) demonstrate the lack of a clear statutory mandate. See Staacke, 841 F.2d at 282

9 (“Where, as here, the statute is capable of two plausible interpretations, the Secretary’s

10 decision to adopt one interpretation over the other cannot constitute a violation of a clear 11 12 statutory mandate.”). In view of the competing plausible interpretations, the Court

13 cannot conclude that the Secretaries acted in excess of their delegated powers contrary to

14 a “clear and mandatory” provision in section 102.

15

16

b. Whether Key Statutory Terms Preclude the Waiver

17

Determinations

18

i. “additional barriers and roads”

19

20

Section 102(a) grants the Secretary the authority to “to install additional physical

21 barriers and roads.” 8 U.S.C. § 1103(a). Coalition Plaintiffs and California Plaintiffs

22 argue that section 102 only allows for the installation of “additional” barriers and roads 23 24 and does not authorize the replacement of existing fences. Plaintiffs cite to the dictionary

25 that defines “additional” as “more”, “extra” and “added” while “replacement” is defined

26 as resulting in no net gain or addition and because the new barrier is a substitute or

27

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1 successor to the fence, it is replacing, not adding. Moreover, they argue that the

2 construction of additional barriers through various amendments since 1996 focused solely 3 4 on adding mileage to the existing fencing such as adding fencing where none existed or

5 adding new layers of fencing to supplement the existing primary fence. Section 102 does

6 not address on-going maintenance or replacement of existing barriers. They contend that 7 8 none of the prior waivers were initiated for the purpose of replacing, repairing, or

9 enhancing existing barriers.

10

In response, the government argues Plaintiffs’ narrow interpretation of “additional”

11

12 is not supported by the statutory language nor the legislative history. According to

13 Defendants, the installation of “lighting, cameras and sensors”, 8 U.S.C. § 1103(b)(1)(A),

14 falls under “additional barriers and roads” under section 102(a) which indicate a broader 15 16 definition of “additional.” Defendants also cite the legislative history of the 2005 REAL

17 ID Act where representatives described section 102 as providing for “construction and

18 strengthening of barriers along U.S. land borders” suggesting a broad definition of 19 20 “additional.” (Dkt. No. 18-2, Ds’ Index of Exs., Ex. 2, H.R. Rep. 109-72 at 170 (May 3,

21 2005).) In 2006, Senator Kyl discussed section 102 and explained the project as

22 “replacing the so-called landing mat fencing, which does look like a wall, with chain 23 24 link-type fencing that you can see through.” (Dkt. No. 18-2, Ds’ Index of Exs., Ex. 9,

25 152 Cong. Rec. S9871 (Sept. 21, 2006).) He explained that the current fencing is

26 deteriorating and difficult to repair because of its age. (Id.) Moreover, DHS has used

27

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1 section 102 to replace fencing in 2011 in Arizona, the Nogales Fence Replacement

2 Project, and invoked section 102(c)’s waiver authority.16 (Dkt. No. 42-2, Ds’ Index of 3 4 Exs., Ex. 23.) The authority for the project was derived from sections 102(a) and

5 102(b)(1)(A). (Id. at 5.) The Nogales Fence Replacement Project was to remove and

6 replace about 2.8 miles of existing primary fence along the United States/Mexico 7 8 international border, the repair and maintenance of a 20 foot wide construction road

9 parallel to the fence and replacement of a 20-foot-wide gate at a port of entry. (Id. at 4.)

10

The legislative history and the prior projects invoking section 102(c) for the

11

12 replacement of border fences support the position that building “additional barriers” has a

13 broad meaning and can include replacement of fencing. To the extent that this

14 interpretation is plausible, Plaintiffs have not demonstrated the replacement fence clearly 15 16 falls outside the scope of “additional physical barriers” to show that the Secretary

17 violated a “clear and mandatory” statutory provision. See, e.g., Staacke, 841 F.2d at 281

18 (noting that both parties’ construction of “in addition” were plausible where one party 19 20 asserted it meant “concurrent with” and the other party maintained it meant “subsequent

21 to”).

22 /// 23 24 ///

25

26

27 16 73 Fed. Reg. 19078 (Apr. 8, 2008).
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1

ii. “areas of high illegal entry”

2

Plaintiffs argue that the Waiver Determinations’ conclusions that the San Diego

3

4 and El Centro sectors are “areas of high illegal entry,” are improperly based on sector-

5 wide data which are not good indications of whether the Project Areas are areas of high

6 illegal entry. Moreover, sector wide data are not reliable because the amount of drugs 7 8 seized in a sector usually occur far from the Mexican border at highway checkpoints,

9 during vehicle searches at the points of entry or when border patrol agents discover a

10 drug-smuggling boat or drone. Sector wide data do not demonstrate that the project areas 11 12 themselves are areas of high illegal entry and the data are less probative when the facts

13 show that the San Diego Project Area has fewer illegal border crossings than the San

14 Diego Sector as a whole. However, even if the Court were to consider sector-wide data, 15 16 Plaintiffs argue DHS’s apprehension records show that these two sectors are no longer

17 areas of high illegal entry.

18

Defendants argue that Congress has set no specific threshold for “high illegal

19

20 entry” but Congress has expressly stated that one of the statute’s purposes is “to achieve

21 and maintain operational control over the international border.” 8 U.S.C. §

22 1103(b)(1)(D). “Operational control” “means the prevention of all unlawful entries into 23 24 the United States, including entries by terrorists, other unlawful aliens, instruments of

25 terrorism, narcotics, and other contraband.” Pub. L. No. 109-367 § 2(b), 120 Stat. 2638

26 (2006) (codified at 8 U.S.C. § 1701 note). Moreover, they note that the number of

27

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1 apprehensions had fallen from more than 480,000 to less than 150,000 by 2006. But

2 when Congress amended section 102 in 2006 and 2008, it did not suggest there was no 3 4 longer “high illegal entry” along the border. Lastly, Congress frequently refers to sector-

5 wide data when discussing the needs for such projects; therefore the use of sector-wide

6 data is not misplaced. (Dkt. No. 35-1 at 65 (citation to legislative history using sector7 8 wide data).)

9

The August 2, 2017 Waiver Determination states that the San Diego Sector is one

10 of the busiest and in 2016, the CBP apprehended over 31,000 illegal aliens and seized 11 12 about 9,167 pounds of marijuana and about 1,317 pounds of cocaine in the San Diego

13 Sector. (Dkt. No. 30-6, Cayaban Decl., Ex. 11, 82 Fed. Reg. 35984.) Based on this, the

14 Secretary determined that the San Diego Project Area, “is an area of high illegal entry.” 15 16 (Id. at 35985.) The September 12, 2017 Waiver Determination states that the El Centro

17 Sector is an area of high illegal entry. (Id., Ex. 12, 82 Fed. Reg. 42,830.) In 2016, the

18 CPB apprehended over 19,000 illegal aliens and seized about 2,900 pounds of marijuana 19 20 and about 126 pounds of cocaine. (Id.)

21

Congress did not define “area of high illegal entry” so as to provide “clear and

22 mandatory” metrics. Similarly, the government’s use of sector wide data to support its 23 24 “area of high illegal entry” determination is not a clear violation of the statute. See Key

25 Med. Supply, Inc. v. Burwell, 764 F.3d 955, 964 (8th Cir. 2014) (Congress did not

26 instruct the Agency as to how to ensure or achieve category-wide cost savings and the

27

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1 use of pre-existing scheduled prices as maximum bid caps was not “a clear departure

2 from [the] statutory mandate”). As a result, the Court cannot conclude the Secretaries 3 4 violated their mandate to deter crossings in areas of “high illegal entry” when they

5 determined that apprehension of 31,000 undocumented aliens in the San Diego Sector in

6 2016, and 19,000 apprehended illegal entries in El Centro Sector in 2016 “remain[] 7 8 area[s] of high illegal entry.” (Dkt. No. 30-6, Cayaban Decl., Ex. 11, 82 Fed. Reg.

9 35984; id., Ex. 12, 82 Fed. Reg. 42,830.)

10

The parties present certain facts and data in varying forms, based on geographic

11

12 locations or years, to support their respective positions. Plaintiffs focus on the dramatic

13 improvement over the years on the number of apprehensions. Again, the Court finds that

14 both sides offer conflicting plausible interpretations of section 102(a). As a result, the 15 16 Secretary’s decision to adopt one interpretation over the other cannot constitute an ultra

17 vires act.

18

iii. “deter illegal crossings”

19

20

Coalition Plaintiffs contend that the border wall prototype project, to evaluate

21 various design features for potential inclusion in a future border wall, is outside the scope

22 of section 102 because it has no deterrent effect since there are gaps between each of the 23 24 eight prototypes built. They also contend that DHS has already spent more than $2

25 billion to install 705 miles of fencing along the border and the two projects are not

26 “necessary . . . to deter illegal crossings.” (Dkt. No. 29-1 at 17.) The government argues

27

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1 that Coalition Plaintiffs cannot second-guess the Secretary’s conclusion that the projects

2 “will further Border Patrol’s ability to deter and prevent illegal crossings.” (Dkt. No. 353 4 1 at 66.)

5

Section 102(a) provides that the Secretary must take actions “necessary to install

6 additional physical barriers and roads” . . . “to deter illegal crossings.” 8 U.S.C. § 7 8 1103(a). In the Waiver Determinations, the Secretaries determined that the prototypes

9 are “intended to deter illegal crossings” and “necessary for future border wall design and

10 construction.” (Dkt. No. 30-6, Cayaban Decl., Ex. 11, 82 Fed. Reg. at 35,985, id., Ex. 12, 11 12 82 Fed. Reg. at 42,830.)

13

Once again, the issue of what constitutes “deter[ing] illegal crossings” comes down

14 to statutory interpretation. The Secretary is granted broad discretion in determining how 15 16 to “achieve and maintain operational control” of the border. Plaintiffs have not identified

17 “clear and mandatory” statutory language that the Secretary violated to establish the

18 claimed ultra vires conduct.

19

20

iv. “most practical and effective”

21

California Plaintiffs argue that Defendants exceeded their authority by constructing

22 fencing where the barriers would not be “most practical or effective.” See 8 U.S.C. § 23 24 1103(b)(1)(A). The facts show that the project area sites are no longer high priority sites.

25 According to a CBP document, the California border was rated as “moderate” compared

26 to “high” or “very high” when it came to geographic/investment priorities. (Dkt. No. 30-

27

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1 5, Cayaban Decl., Ex. 9 at 45.) Moreover, in a television interview, Secretary of DHS

2 Kelly stated that the existing fencing is “very, very effective” and “remarkably effective 3 4 in keeping down the amount of illegal movements across” the border. California

5 Plaintiffs argue that most of California’s 140 miles border already has fencing including

6 the Project Areas covered by the Waivers. (Dkt. No. 30-4, Cayaban Decl., Ex. 1 at 107 8 14.)

9

Defendants respond that the Secretary’s decision to assess where fencing “would

10 be most practical and effective”, 8 U.S.C. § 1103(b)(1)(A), did not limit the broad 11 12 mandate of section 102(a). Moreover, section 102 also provides that the Secretary is to

13 determine whether the “use or placement of such resources is not the most appropriate

14 means to achieve and maintain operational control over the international border.” 8 15 16 U.S.C. § 1103(b)(1)(D). They also argue that the facts to support Plaintiffs’ conclusions

17 are misplaced as the CBP document relied upon was dated March 27, 2017 which was

18 five months prior to the Secretary’s first waiver determination. Also, Secretary Kelly’s 19 20 comments did not specifically address the San Diego Sector or El Centro Sector.

21

The Secretary of DHS has discretion to determine “where fencing would be the

22 most practical and effective” and California Plaintiffs’ facts do not demonstrate that the 23 24 Secretary contravened a “clear and mandatory” provision in the statute.

25 ///

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1

v. “consultation”

2

Coalition Plaintiffs argue that the waiver is unavailable unless the Secretary has

3

4 consulted with the parties identified in section 102(b)(1)(C) which she has not done.

5 Defendants argue that the waiver provision does not expressly or implicitly depend on the

6 completion of the consultation requirement. Nonetheless, Defendants assert that they 7 8 have and are still in the process of complying with the consultation provision.

9

Based on the parties’ briefing and arguments at the hearing, it did not appear that

10 the Secretary had complied with the consultation provision as to the border wall 11 12 prototype project and the evidence provided did not support compliance with the

13 consultation provision regarding the two replacement fences. Therefore, at the hearing,

14 the Court directed the parties to file supplemental briefs on the consultation issue and 15 16 how the lack of consultation affects ultra vires and the constitutional claims, if at all.17

17

The consultation provision states, “[i]n carrying out this section, the Secretary of

18 Homeland Security shall consult with the Secretary of the Interior, the Secretary of 19 20 Agriculture, States, local governments, Indian tribes, and property owners in the United

21 States to minimize the impact on the environment, culture, commerce, and quality of life

22

23

24

25 17 Defendants note and the Court recognizes that that Coalition Plaintiffs are the only plaintiffs to have

26 raised the consultation issue in their summary judgment motion. To the extent all Plaintiffs raise similar
arguments in their supplemental briefs, the Court considers them.

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1 for the communities and residents located near the sites at which such fencing is to be

2 constructed.” 8 U.S.C. § 1103(b)(1)(C). This provision is mandatory.

3

4

According to Real Estate and Environmental Branch Chief for the Border Patrol

5 and Air and Marine Program Management Office (“BPAM”)18, an office within the CBP,

6 the prototype project began on September 26, 2017 and was completed on October 26, 7 8 2017. (Dkt. No. 49-4, Ds’ Index of Exs., Ex. 31, Enriquez Decl. ¶ 11.) The prototype

9 project area is located on Federal government property and used as an enforcement zone

10 for border security purposes and is heavily disturbed. (Id. ¶ 15.) CBP did not meet with 11 12 USDA, the State of California, local government or Indian Tribes as it determined they

13 were not stakeholders. (Id.) However, CBP met with one adjacent landowner and in

14 response to the landowner’s concerns, installed temporary fencing to prevent 15 16 unauthorized construction access across the landowner’s property. (Id.) Prior to the San

17 Diego Waiver, on July 13, 2017, CBP met with U.S. Department of Interior, (“DOI”),

18 U.S. Fish and Wildlife Service, (“USFWS”), and Bureau of Land Management 19 20 (“BLM”)’s staff, toured the project area and discussed potential environmental impacts.

21 (Id. ¶ 16.) Before the waiver, CBP also met with General Service Administration

22 (“GSA”) to discuss potential environmental impacts and routing of construction traffic as 23

24

25

26 18 The BPAM is responsible for constructing and maintaining facilities, tactical infrastructure and border
infrastructure which also includes environmental planning and compliance associated with these

27 activities. (Dkt. No. 49-4, Ds’ Index of Exs., Ex. 31, Enriquez Decl. ¶ 3.)

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1 it manages an access road in the project area. (Id. ¶ 17.) CBP also conducted a field

2 survey concerning natural and biological resources and the results are summarized in a 3 4 final Biological Resources Survey Report dated October 2017. (Dkt. No. 49-5, Ds’ Index

5 of Exs., Ex. 31.A, Enriquez Decl., Ex. A.) It also conducted a field survey and records

6 search to identify any cultural and historical resources in the project area and the results 7 8 are summarized in a final Cultural Resources Survey Report dated October 2017. (Dkt.

9 No. 49-6, Ds’ Index of Exs., Ex. 31.B, Enriquez Decl., Ex. B.) After the surveys were

10 completed, CBP conducted additional consultation with DOI. (Dkt. No. 49-4, Ds’ Index 11 12 of Exs., Ex. 31, Enriquez Decl. ¶ 19.) In September 2017, CBP sent USFWS the results

13 of the biological survey and asked for input from USFWS concerning potential impacts

14 from the project but no response was provided. (Id.) Based on the resource surveys, 15 16 CBP prepared a Memorandum for the Record (“MFR”) dated September 25, 2017

17 analyzing the potential environmental impacts. (Id. ¶ 21; Dkt. No. 49-7, Ds’ Index of

18 Exs., Ex. 31.C, Enriquez Decl., Ex. C.) The Memorandum concluded that the prototype 19 20 project would have no impact on cultural or historic resources and would not have a

21 significant impact on any endangered species as there are no threatened and endangered

22 species in the project area, and no vernal pools, wetlands, or other surface water located 23 24 within the project area. (Dkt. No. 49-4, Ds’ Index of Exs., Ex. 31, Enriquez Decl. ¶ 22.)

25 Further, CBP mandated its contractors to follow certain Best Management Practices

26

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1 (“BMPs”). (Id. ¶ 23.) CBP made adjustments to the prototype project based on the

2 results of the resource surveys and consultation with stakeholders. (Id. ¶ 20.)

3

4

The Calexico fence replacement project is located primarily on federal land that is

5 managed by CBP or GSA and used primarily for border enforcement or port operations.

6 (Id. ¶ 37.) The project also includes a Media and First Amendment area on land owned 7 8 by the City of Calexico. (Id.)

9

Prior to the Calexico Waiver Determination, on July 13, 2017, CBP met with DOI

10 representatives including USFWS and BLM to provide information to them, (id. ¶ 38), 11 12 and consulted with the California State Historic Preservation Officer (“CASHPO”) and

13 Native American Tribes to make sure the geo-technical testing did not impact historic or

14 cultural resources. (Id. ¶ 39.)

15

16

After the Waiver Determination, CBP conducted field surveys to identify natural

17 and biological resources which were summarized in a Biological Survey Report dated

18 January 2018, (Dkt. No. 49-9, Ds’ Index of Exs., Ex. 31.E, Enriquez Decl., Ex. E), 19 20 conducted field surveys of cultural and historical resources which are summarized in a

21 Cultural Resources Survey dated January 5, 2018, (Dkt. No. 49-10, Ds’ Index of Exs.,

22 Ex. 31.F, Enriquez Decl., Ex. F), and conducted surveys to document and delineate 23 24 potential wetlands and waters in the project area which are summarized in a Wetland

25 Delineation Report dated January 2018. (Dkt. No. 49-11, Ds’ Index of Exs., Ex. 31.G,

26 Enriquez Decl., Ex. G.) After the surveys were completed, CBP conducted additional

27

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1 outreach and sent consultation letters, on January 18 and 19, 2018, to USFWS, the

2 California Department of Fish and Wildlife, CASHPO, two Native American tribes, the 3 4 Colorado River Basin Regional Water Quality Control Board (“CRBRWQCB”), the U.S.

5 Army Corps of Engineers Regulatory Division (“USACE”), the Imperial Irrigation

6 District (“IID”), Imperial County Air Pollution Control District, and the City of Calexico. 7 8 (Dkt. No. 49-4, Ds’ Index of Exs., Ex. 31, Enriquez Decl. ¶ 41; Dkt. No. 49-12, Ds’

9 Index of Exs., Ex. 31.H-Q, Enriquez Decl., Exs. H-Q.) To date, CBP received responses

10 from three entities, IID, CRBRWQCB, and USACE. (Dkt. No. 49-13, Ds’ Index of Exs., 11 12 Ex. 31.R-T, Enriquez Decl., Exs. R-T.) The CBP concluded that the USDA and private

13 property owners were not stakeholders in the Calexico replacement fence project. (Id.)

14 Based on this information, CBP prepared the Calexico MFR. (Dkt. No. 49-8, Ds’ Index 15 16 of Exs., Ex. 31.D, Enriquez Decl., Ex. D.)

17

The San Diego fence replacement project will occur on federal land. (Dkt. No. 49-

18 4, Ds’ Index of Exs., Ex. 31, Enriquez Decl. ¶ 26.) On July 13, 2017, prior to the Waiver, 19 20 CBP conducted an on-site meeting with DOI, USFWS and BLM officials to discuss the

21 project, and USFWS provided CPB with data and information concerning vernal pools

22 and areas occupied by burrowing owls and the possible presence of habitat for the quino 23 24 checkerspot butterfly and the California gnatcatcher. (Id. ¶ 27.)

25

CBP has conducted resource surveys, including biological, cultural and wetlands

26 within the project area and is currently preparing these reports. (Id. ¶ 28.) Based on

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1 these surveys, CBP has made adjustments to the San Diego fence replacement project.

2 (Id. ¶ 29.) For example, CBP identified two historic sites that will be avoided during 3 4 construction and is planning on plant and topsoil salvage and making arrangements to

5 have full time environmental and historic/cultural monitors on-site during construction.

6 (Id.) Prior to the start of construction, CBP will send out letters to stakeholders including 7 8 Federal, State, and local agencies and Native Americans in the Spring of 2018 to solicit

9 more information. (Id. ¶ 30.) Once that is completed, it will prepare an Environmental

10 Stewardship Plan (“ESP”) for public review which will include its assessment of 11 12 potential impacts, BMP’s, and if necessary, mitigation or conservation measures. (Id.)

13 Because of the project’s location, CBP determined that the USDA and private property

14 owners “are not likely to be stakeholders for this project.” (Id. ¶ 31.)

15

16

Consistent with Defendants’ prior argument that “carrying out this section” applies

17 to section 102 as a whole, the Court concludes that the consultation provision applies to

18 any border construction project under section 102.

19

20

As to the prototype project, it appears that the consultation requirement was met.

21 Prior to the Waiver Determinations, CBP met with representatives of the DOI, including

22 USFWS and BLM, as well as GSA, as these are agencies that would be affected by the 23 24 project. (Dkt. No. 49-4, Ds’ Index of Exs., Ex. 31, Enriquez Decl. ¶¶ 16, 17.) They also

25 met with one landowner but it is not clear when that occurred; however, CBP responded

26

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1 by installing temporary fencing due to the landowner’s concern. (Id. ¶ 15.) Defendants

2 did not believe that any other agencies would be affected by the prototype project. (Id.)

3

4

Next, as to the Calexico replacement fence which may have begun construction on

5 February 15, 2018, the CBP met with representatives of DOI, including USFWS and

6 BLM, as well as the CASHPO and Native American tribes before the Waiver 7 8 Determination. (Id. ¶¶ 38, 39.) But it did not consult with the City of Calexico prior to

9 the Waiver Determination. Instead, it sent a consultation letter on January 19, 2018 with

10 a requested response date by February 2, 2018. (Dkt. No. 49-12, Ds’ Index of Exs., Ex. 11 12 31.O, Enriquez Decl., Ex. O at 15.) It also sent consultation letters to nine additional

13 identified stakeholders. (Id., Exs. H-Q.) To date, only three entities responded with one

14 entity seeking additional time. (Id., Exs. R-T.) While the consultation letters were sent 15 16 less than a month before construction is to begin, it is not clear that the consultation

17 provision was violated.

18

As to the San Diego replacement project, so far, CBP had a meeting with

19

20 representatives of DOI, USFWS and BLM, prior to the Waiver Determination and

21 subsequently conducted surveys but has not yet consulted with other stakeholders.

22

Plaintiffs argue that the consultation should occur prior to any waiver

23

24 determinations as that information is critical in determining whether to waive certain

25 laws. In contrast, Defendants argue the consultation provision does not expressly specify

26 the subject matter for consultation, when the consultation should happen, or the degree of

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1 consultation required. Its purpose is to minimize the impact of construction once a

2 project has been selected. They also assert Congress intended the consultation provision 3 4 to be enforced through its appropriations power but then note that for the appropriations

5 for the projects at issue, Pub. L. No. 115-31, 131 Stat. 135, 434 (May 5, 2017), Congress

6 did not require consultation. They further claim that the saving clause precludes a private 7 8 right of action concerning the consultation requirement.

9

Plaintiffs’ argument that the consultation should occur prior to any waiver

10 determinations so that the Secretary is fully informed when the determination is made is 11 12 logical. In addition, it makes sense that consultation should occur before contracts are

13 drafted and executed so that the information can have a practical influence on the

14 decision making process and to permit environmental and mitigation measures to be 15 16 incorporated into the contract. The question is whether such timing is mandatory.

17 Section 102 does not provide any specific limitation or guidance concerning when or how

18 consultation is to occur except expressly stating who shall be consulted.

19

20

Consultation on the Calexico replacement wall is on-going and responses may be

21 forthcoming despite the fact that construction on the project may have already begun. In

22 the Court’s opinion, the belated contact with stakeholders reduces the practical benefit of 23 24 the consultation process. But given the lack of a “clear and mandatory” mandate

25 regarding the timing of consultation, the Court cannot conclude that the Secretaries acted

26

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1 in excess of their delegated powers by approving the waivers or executing construction

2 contracts prior to completing the consultation process.

3

4

vi. “necessary to ensure expeditious construction”

5

Section 102(c) provides that the Secretary of the DHS “shall have the authority to

6 waive all legal requirements” that the Secretary, in his or her “sole discretion” determines 7 8 “necessary to ensure expeditious construction of the barriers and roads under this

9 section.” 8 U.S.C. § 1103(c)(1). This mandatory language gives the Secretary of the

10 DHS discretion to make this determination.

11

12

Coalition Plaintiffs argue that section 102(c)’s waiver is subject to the Secretary’s

13 determination that it is “necessary to ensure expeditious construction of the barriers and

14 roads under this section”, 8 U.S.C. § 1103(c)(1), but the government has failed to provide 15 16 any information or bases to support the conclusion that these waivers are necessary.

17 Meanwhile, Center Plaintiff contends that section 102(c)’s requirement that waivers be

18 “necessary to ensure expeditious construction” demonstrates that Congress intended to 19 20 limit the scope of the section 102(c) waiver to specific border barriers under section

21 102(b). They contend that a logical interpretation of “expeditious construction” is that

22 Congress provided the DHS Secretary with the authority to waive laws in order to build 23 24 the specific border barriers required under section 102(b) as soon as possible after the

25 law’s enactment and not to the wall replacement project or the prototype project started a

26 decade later. Also, the text of the statute indicates that the waiver authority was intended

27

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1 to apply only for specific projects mandated by section 102(b) which have long been

2 completed.

3

4

Here, the words used by Plaintiffs in their argument such as “logical interpretation”

5 “intended” and “[i[t is far more reasonable to limit the 102(c) waiver authority to those

6 barriers that have been specifically mandated by Congress under §102(b) than to adopt 7 8 the government’s boundless interpretation”, (Dkt. No. 28-1 at 39), demonstrate that a

9 determination that a waiver is “necessary to ensure expeditious construction of barriers

10 and roads” is one of statutory interpretation. The Court cannot conclude that the Waiver 11 12 Determinations are in contravention of clear and mandatory language in section 102(c).

13 See Staacke, 841 F.2d at 282 (where the statute is subject to two plausible interpretations,

14 the Secretary of Labor’s interpretation cannot constitute a “violation of a clear mandatory 15 16 mandate” and noting that the Secretary’s statutory discretion to make policy choices with

17 disability decisions is “virtually limitless”).

18

c. Whether Section 102(c)’s Waiver Authority has Expired

19

20

Center Plaintiff argues that there is no evidence in the text or the legislative history

21 that Congress intended the waiver authority to exist in perpetuity or even that Congress

22 intended the waiver authority to be extended beyond the initial San Diego fence. They 23 24 argue that expeditious construction refers solely to section 102(b) projects as there are

25 time constraints limiting DHS’s authority to determine “other mileage” to expire on

26 December 31, 2008. California Plaintiffs similarly argue that the 2008 amendment

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1 imposed deadlines for the expedited construction of fencing in priority areas. In 2008,

2 former Secretary of DHS Chertoff identified more than 370 miles of priority areas and by 3 4 April 2013, DHS reported it had completed all but a one-mile stretch of these projects

5 which involved 705 miles of fencing. (Dkt. No. 30-4, Cayaban Decl, Ex. 5; id., Ex. 6.)

6

Defendants contend that Plaintiffs’ argument that the December 31, 2008 deadline

7

8 in section 102(b)(1)(B) applies generally to section 102(c) or section 102 as a whole is

9 implausible. Nothing in the statute demonstrates that Congress intended the waiver

10 authority to sunset and that expeditious construction is limited to section 102(b). When 11 12 Congress amended section 102(b) in December 2007, it mandated that about half of the

13 “not less than 700 miles” be completed within a year, by December 31, 2008. Because

14 Congress did not provide a deadline for the remaining miles, they argue that there is no 15 16 expiration date on building additional fencing. Moreover, they assert that the section

17 102(c) waivers would be applicable to the remaining miles to be built.

18

In 2008, Congress amended section 102(b) requiring DHS to construct reinforced

19

20 fencing “along not less than 700 miles of the southwest border where fencing would be

21 most practical and effect.” 8 U.S.C. § 1103(b)(1)(A). As to priority areas, section 102(b)

22 mandated that the DHS Secretary “identify 370 miles, or other mileage determined by the 23 24 Secretary” and the authority to determine “other mileage” would expire on December 31,

25 2008 and Congress imposed a deadline of December 31, 2008 to complete construction

26 of the fencing. Id. § 1103(b)(1)(B).
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1

In United States v. Arizona, No. CV 10-1413-PHX-SRB, 2011 WL 13137062, at

2 *8 (D. Az. Oct. 21, 2011), the district court addressed section 102(b)(1)(A)’s mandate 3 4 directing the Secretary to construct 700 miles of fencing. In that decision, the district

5 court stated that there are no deadlines requiring completion of the fencing and

6 infrastructure projects by a specific time. Id. at 8. It explained that section 102 uses 7 8 mandatory language but grants the Secretary “substantial discretion” in determining

9 “how, when, and where to complete the construction.” Id.

10

This argument is similar to Plaintiffs’ earlier argument that section 102(c)’s waiver

11

12 provision applies only to projects identified in section 102(b) which was previously

13 rejected by the Court. The parties’ varying plausible interpretations concerning the scope

14 of section 102(c) demonstrate that the statutory language is not clear and unambiguous 15 16 and the parties’ argument is essentially a dispute regarding statutory interpretation. As

17 such, Plaintiffs have not demonstrated that the Secretaries violated a clear and mandatory

18 statutory provision.

19

20

d. Whether Section 102 Requires that the Waiver Determinations

21

Include Findings

22

California Plaintiffs assert that the Waivers are invalid because the Secretaries

23

24 failed to make the requisite findings to demonstrate the requirements of section 102 and

25 only used boiler plate language copied from section 102 without providing reasons

26 behind each Waiver Determination. (Dkt. No. 30-2 at 34-35.) Defendants respond that

27

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1 nothing in section 102(c) requires that the Secretaries explain the factual basis of their

2 Waiver Determinations in the Federal Register.

3

4

California Plaintiffs cite to Dickson v. Sec’y of Defense, 68 F.3d 1396, 1404-05

5 (D.C. Cir. 1995) and Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 967

6 (9th Cir. 2015) in support of their argument. These cases involve agency determinations 7 8 that were found to be arbitrary and capricious under the APA where an agency failed to

9 provide a reasoned explanation for its decision. Unlike the current case, the challenged

10 agency rulings in those cases were subject to judicial review. In this case, the APA’s 11 12 standard of review and requirement for findings concerning an agency’s decision are

13 inapplicable.

14

Section 102 only requires that the Secretary’s decision be “published in the Federal

15

16 Register.” 8 U.S.C. § 1103(c)(1). While the Waiver Determinations use predicate terms

17 in section 102 such as “areas of high illegal entry”, “necessary”, “deter and prevent

18 illegal crossings” and “most practical and effective”, Plaintiffs have not demonstrated 19 20 that more is mandated under section 102 to support an ultra vires claim. Accordingly, the

21 Court concludes that California Plaintiffs’ argument lacks merit.

22

In view of the foregoing, the Plaintiffs have failed to demonstrate that the waivers

23

24 violated a clear and mandatory provision of section 102. Consequently, the Court lacks

25 jurisdiction to hear any non-constitutional claim.

26

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1

2. Whether Barring Review Deprives Plaintiffs of a Meaningful and

2

Adequate Means of Violating Their Statutory Rights

3

4

The second step in an ultra vires analysis requires that Plaintiffs demonstrate that

5 barring review would deprive them of a “meaningful and adequate means of vindicating”

6 their statutory rights. See MCorp., 502 U.S. at 43. Analogizing to 42 U.S.C. § 1983 7 8 cases and private right of actions cases, Defendants argue that California Plaintiffs have

9 not identified a statutory right in section 102 as opposed to a statutory obligation. See

10 California Sportfishing Prot. Alliance v. U.S. Bureau of Reclamation, 15cv912 LJO 11 12 BAM, 2015 WL 6167521, at *11 n. 8 (E.D. Cal. Oct. 20, 2014) (water quality standards

13 are better described as “statutory obligations” rather than “statutory rights.”).

14

Meanwhile, no Plaintiff has conducted a meaningful analysis on this prong.

15

16 Instead, California Plaintiffs generally assert that the absence of district court jurisdiction

17 will deprive them of adequate means to vindicate their statutory rights. (Dkt. No. 30-2 at

18 24.) Assuming for argument’s sake that Plaintiffs satisfied the second prong, they have 19 20 failed to establish the first prong. That is, the Court concludes that Plaintiffs have not

21 established a plain violation of an unambiguous and mandatory provision of section 102,

22 and, therefore, the Court lacks jurisdiction to hear non-constitutional claims under section 23 24 102(c)(2)(A).

25 ///

26 /// 27
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1

E. Whether the Secretaries’ Decisions under Sections 102(a) & (b) are

2 Subject to APA Review

3

4

In order to invoke judicial review under the APA, Coalition Plaintiffs present an

5 alternative argument starting with a strong presumption of judicial review of agency

6 action.19 They argue that the judicial review limiting provision of section 102(c) is 7 8 distinct from sections 102(a) & (b) because the Secretary must comply with the

9 requirements of sections 102(a) and (b) prior to invoking the waiver provision.

10 Therefore, because sections 102(a) and (b) are separate determinations from section 11 12 102(c), and the waivers constitute final agency decisions reviewable by a district court,

13 the Secretaries’ decisions on the two projects are subject to APA review and under the

14 APA, the two Waivers are “arbitrary, capricious, and abuse of discretion, or otherwise 15 16 not in accordance with the law.” See 5 U.S.C. § 706(2)(A).

17

Specifically, Coalition Plaintiffs contend that the language “notwithstanding any

18 other provision of law” which is contained in section 102(c)(1) “demonstrates an intent to 19 20 limit the waiver authority solely to laws other than the one in which the waiver is

21 contained, meaning the requirements of the section itself are not waivable.” (Dkt. No.

22 29-1 at 13.) Accordingly, the requirement of “high illegal entry” and the “consultation” 23

24

25

26
19 In contrast, Center Plaintiff conceded that the strong presumption of judicial review is rebutted by the

27 express statutory language of section 102(c). (Dkt. No. 28-1 at 22.)

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1 requirements of sections 102(a) and (b) must be satisfied before the Secretary can invoke

2 section 102(c)’s waiver authority.

3

4

Defendants counter that the section 102(c) waiver determination arises from “any

5 action undertaken” pursuant to section 102(c)(1) and cannot be separated from sections

6 102(a) or (b). They contend that Plaintiffs improperly seek to challenge findings that are 7 8 integral to the waiver determination itself. Even if the phrase “pursuant to paragraph (1)”

9 in section 102(c)(2)(A), refers to the waiver determination in isolation, the terms “any

10 action undertaken . . . pursuant to paragraph (1)” and “all clauses or claims arising from” 11 12 such actions or decision, broadens the judicial review provision to include more than just

13 the waiver determination, itself. Next, they contend that Plaintiffs’ reading that provides

14 sections 102(a) and (b) are subject to APA review would frustrate Congress’ purpose in 15 16 enacting the jurisdictional limitation and waiver provisions which were intended to

17 prevent litigation delays since any invocation of the waiver would be subject to APA

18 review to determine whether the waiver was justified in the first place.

19

20

In reply, Coalition Plaintiffs argue that the Secretaries’ decisions under section

21 102(c)(1) to waive any laws as “necessary to ensure expeditious construction” do not

22 address whether there is authority to construct the border projects themselves. The 23 24 authority to construct the border projects are in sections 102(a) and (b). They also argue

25 that these decisions are final agency decisions as they mark the “consummation” of the

26 agency’s decisionmaking and “alter[] the legal regime to which the action agency is

27

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1 subject”. (Dkt. No. 38 at 13.) “[S]ince subsections 102(a) and (b) are final agency

2 actions and outside the scope of subparagraph 102(c)(2)(A), the Court may review these 3 4 actions pursuant to 5 U.S.C. § 706(2).” (Id.)

5

Under the APA, “[a] person suffering a legal wrong because of agency action, or

6 adversely affected or aggrieved by agency action within the meaning of the relevant 7 8 statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. Court are limited to

9 review of a final agency action. Or. Nat’l Desert Ass’n v. U.S. Forest Serv., 465 F.3d

10 977, 982 (9th Cir. 2006). Under the APA, the court determines whether the agency 11 12 actions are “arbitrary, capricious, or an abuse of discretion.” 5 U.S.C. § 706(2)(A).

13 However, judicial review is not available “to the extent that statutes preclude [it].” 5

14 U.S.C. § 701(a)(1); see also Pinnacle Armor, Inc. v. United States, 648 F.3d 708, 719 15 16 (9th Cir. 2011) (citing 5 U.S.C. § 701(a)(2)).

17

Section 102(c)(2)(A) provides that

18

The district courts of the United States shall have exclusive jurisdiction to

19

hear all causes or claims arising from any action undertaken, or any decision

20

made, by the Secretary of Homeland Security pursuant to paragraph (1). A cause of action or claim may only be brought alleging a violation of the

21

Constitution of the United States. The court shall not have jurisdiction to

22

hear any claim not specified in this subparagraph.

23 24 8 U.S.C. § 1103(c)(2)(A). This is an express statutory bar on judicial review of non-

25 constitutional claims and APA review is not allowed. However, the question is whether

26

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1 the express statutory bar applies solely to section 102(c) decisions or to the entirety of

2 section 102, including sections 102(a) and (b).

3

4

The judicial review provision under section 102(c)(2)(A) states that the district

5 courts have exclusive jurisdiction to “hear all causes or claims arising from any action

6 undertaken” . . . “pursuant to paragraph (1).” While paragraph (1) refers to the 7 8 Secretary’s waiver authority, the language “all causes or claims arising from any action

9 undertaken” is broad enough to encompass the determination under section 102(a) that

10 the two projects are “necessary” to “deter illegal crossings in areas of high illegal entry 11 12 into the United States.” See 8 U.S.C. § 1103(a); U.S. Dept. of Energy v. Ohio, 503 U.S.

13 607, 626 (1992) (describing “arising under Federal law” in the case as a “broad” and

14 “seemingly expansive phrase”); Ford Ord Toxics Project, Inc. v. Cal. E.P.A., 189 F.3d 15 16 828, 832 (9th Cir. 1999) (statutory language that district courts have exclusive

17 jurisdiction over “all controversies arising under” CERCLA, indicated “Congress used

18 language more expansive than would be necessary if it intended to limit exclusive 19 20 jurisdiction to ‘those claims created by CERCLA’”); North East Ins. Co. v. Masonmar,

21 Inc., No. 13cv364 AWI SAB, 2014 WL 1247604, at *6 (E.D. Cal. Mar. 25, 2014)

22 (California courts gives terms such as “arising out of” and “arising from” expansive 23 24 meanings); Nova Biomedical Corp. v. Moller, 629 F.2d 190, 195 n. 9 (1st Cir. 1980)

25 (noting that other courts have adopted an expansive view of “arising from” language).

26

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1

Based on the statutory language, the Court declines to adopt Coalition Plaintiffs’

2 argument that APA review is available for decisions made solely under sections 102(a) 3 4 and (b). The judicial review bar of non-constitutional challenges applies to any action

5 taken to invoke the section 102(c) waiver authority which includes actions under sections

6 102(a) and (b).

7

8

In conclusion, the Court GRANTS Defendants’ motions for summary judgment on

9 non-constitutional claims alleging violations of NEPA, the ESA, the CZMA and the

10 APA, and DENIES Plaintiffs’ motions for summary judgment on these claims. Next, the 11 12 Court considers Plaintiffs’ constitutional challenges which are subject to review by this

13 Court. See 8 U.S.C. § 1103(c)(2)(A).

14

F. Constitutional Violations

15

16

1. Article I, Section 1 - Non-Delegation Doctrine & Separation of Powers20

17

All Plaintiffs allege a violation of the non-delegation doctrine arguing that section

18 102 allows the DHS Secretary to pick and choose among enacted laws and determine, 19 20 with unfettered discretion, which ones shall be waived without specifically stating which

21 laws will be waived or why. In essence, Plaintiffs contend, section 102(c) has granted the

22

23

24 20 California Plaintiffs separate their separation of powers and violation of the non-delegation doctrine

25

into two causes of action despite similar arguments on both claims. The Court also notes that Coalition Plaintiffs have not sufficiently briefed the issue of separation of powers. They raise the issue of

26 “separation of powers” in a heading, but their analysis consists of essentially one sentence. (Dkt. No.
29-1 at 34-35.) Because the non-delegation doctrine is rooted in the principle of separation of powers,

27 the Court considers the two claims together. See Mistretta v. United States, 488 U.S. 361, 371 (1989).

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1 Executive Branch a blanket waiver which is a violation of the non-delegation doctrine

2 and separation of powers.

3

4

“The nondelegation doctrine is rooted in the principle of separation of powers that

5 underlies our tripartite system of Government.” Mistretta v. United States, 488 U.S. 361,

6 371 (1989). Article I, Section 1 of the Constitution vests all legislative powers in 7 8 Congress. U.S. Const. art. I, § 1. Generally, Congress cannot delegate or transfer the

9 legislative functions with which it is vested. Panama Refining Co. v. Ryan, 293 U.S.

10 388, 425-26 (1935). The Supreme Court has recognized, however, “that the separation11 12 of-powers principle, and the nondelegation doctrine in particular, do not prevent

13 Congress from obtaining the assistance of its coordinate Branches.” Mistretta, 488 U.S.

14 at 372. “In our increasingly complex society, replete with ever changing and more 15 16 technical problems, Congress simply cannot do its job absent an ability to delegate power

17 under broad general directives.” Id. (citing Opp Cotton Mills, Inc. v. Adm’r of Wage and

18 Hour Div. of Dept. of Labor, 312 U.S. 126, 145 (1941)).

19

20

As a result of this broad constitutional standard, the Supreme Court has upheld all

21 Congressional delegations of power since 1935.21 See Mistretta, 488 U.S. at 373 (noting

22

23

24 21 Notably, although the Court has not since struck down a challenged statute, it has narrowly construed

25

statutory delegations. See, e.g., Indus. Union Dep’t, AFL-CIO v. American Petroleum Inst., 448 U.S. 607, 646 (1980) (standard promulgated by Occupational Safety and Health Act (“OSHA”) limiting

26 occupational exposure to benzene held to be invalid); Nat’l Cable Television Ass’n. v. United States,
415 U.S. 336, 342 (1974) (challenge to revision of fee schedule by the Federal Communications

27 Commission was remanded to Commission to use the proper standard in setting annual fee).

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1 that since 1935, “. . . we have upheld, again without deviation, Congress’ ability to

2 delegate power under broad standards”); Loving v. United States, 517 U.S. 748, 771 3 4 (1996) (affirming that “. . . we have since upheld, without exception, delegations under

5 standards phrased in sweeping terms”). Meanwhile, in 1935, the Supreme Court struck

6 down two statutes on delegation grounds. See A.L.A. Schechter Poultry Corp. v. United 7 8 States, 295 U.S. 495 (1935) (invalidating the delegation of code-making authority

9 contained in the National Industrial Recovery Act as unconstitutional because of the

10 Act’s failure to impose limitations on discretion); Panama Refining Co., 293 U.S. at 388 11 12 (invalidating the delegation of power to the President to “prohibit the transportation . . .

13 of petroleum” as exceeding constitutional limits because Congress failed to articulate a

14 policy to limit the President’s discretion).

15

16

The Supreme Court has held that Congress may delegate its authority so long as it

17 provides, by legislative act, “an intelligible principle to which the person or body

18 authorized to [act] is directed to conform.” Id. (citing J.W. Hampton, Jr. & Co. v. United 19 20 States, 276 U.S. 394, 406 (1928)). Under the intelligible principle standard, a statute

21 delegating authority is constitutional if it “clearly delineates [(1)] the general policy, [(2)]

22 the public agency which is to apply it, and [(3)] the boundaries of the delegated 23 24 authority.” Mistretta, 488 U.S. at 372-73 (citing American Power & Light Co. v. SEC,

25 329 U.S. 90, 105, (1946)).

26

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1

In addition, while courts have recognized limits on Congress’ authority to delegate

2 its legislative power, those limits are less rigid where the entity “itself possesses 3 4 independent authority over the subject matter.” Loving, 517 U.S. at 772 (quoting United

5 States v. Mazurie, 419 U.S. 544, 556-57 (1975)); see also United States v. Curtiss-Wright

6 Export Corp., 299 U.S. 304, 319-22 (1936).

7

8

Accordingly, there are two inquiries this Court must consider when determining

9 whether section 102(c) is a constitutional delegation of power: (1) whether section 102

10 meets the three requirements of the intelligible principle standard; and (2) whether the 11 12 degree of discretion granted to the DHS Secretary in section 102(c) is appropriate

13 considering the Secretary’s independent authority over the subject matter. See Mistretta,

14 488 U.S. at 372-72; Loving, 517 U.S. at 772.

15

16

a. Prong One: Whether Section 102 Clearly Delineates a

17

“General Policy”

18

Coalition Plaintiffs claim that section 102 fails to identify a general policy because

19

20 prior courts identified different general policies. They cite to two recent cases, Sierra

21 Club, 2005 WL 8153059, and Defenders of Wildlife v. Chertoff, 527 F. Supp. 2d 119

22 (D.D.C. 2007), cert denied, 554 U.S. 918 (2008), where the courts stated different policy 23 24 goals in section 102. Coalition Plaintiffs assert “[w]hen courts cannot identify a common

25 statutory policy goal, and the policy some did point to was incorrect, the statutory scheme

26 cannot survive Mistretta scrutiny.” (Dkt. No. 29-1 at 30.)
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1

Defendants argue that Congress defined a “general policy” to guide the DHS

2 Secretary on how to exercise its delegated authority, satisfying the first prong of the 3 4 intelligible principle standard. That policy is install necessary barriers and roads to “deter

5 illegal crossings in areas of high illegal entry into the United States” through, under

6 section 102(c) “expeditious construction of barriers and roads under this section.” (Dkt. 7 8 No. 35-1 at 71.) Defendants further contend that there is no conflict between the

9 statements of general policy by the Sierra Club and the Defenders of Wildlife courts.

10 Rather, one is just more specific than the other. Id. Furthermore, later courts found no 11 12 conflict in the prior courts’ conclusions as to the general policy.

13

Under section 102(a), the general policy states the Secretary of DHS shall take

14 actions as necessary to “deter illegal crossings in areas of high illegal entry into the 15 16 United States.” 8 U.S.C. § 1103(a). To carry out this policy, Congress authorizes the

17 DHS Secretary to “take such actions as may be necessary to install additional physical

18 barriers and roads.” Id.

19

20

The first district court to address whether the amended section 102 contains a

21 “general policy” was in this district. In Sierra Club, the court held that “improvement of

22 U.S. border protection is the ‘clearly delineated general policy.’” Sierra Club, 2005 WL 23 24 8153059, at *6. Two years later, the District of Columbia District Court addressed this

25 same question and similarly found that the general policy was clearly delineated as “to

26 expeditiously ‘install additional physical barriers and roads . . . to deter illegal crossings

27

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1 in areas of high illegal entry.’” Defenders of Wildlife, 527 F. Supp. 2d at 127. Notably,

2 the court further held that this identification of the statute’s general policy was not 3 4 contrary to that recognized by the Sierra Club court, but rather “in accord with the only

5 other decision to address the question of whether [IIRIRA’s] waiver provision is a

6 constitutional delegation.” Id. (citing Sierra Club, 2005 WL 8153059, at *6).

7

8

While using slightly different language, both courts identified the general policy as

9 border protection. Both courts identified deterrence of illegal crossing as a motivating

10 factor in this policy. And both courts recognized that in articulating this policy, Congress 11 12 permitted the construction of physical barriers and roads.

13

Moreover, the District Court for the Western District of Texas noted the general

14 policy of section 102 to be “construction of a border fence” which is consistent with the 15 16 general policy asserted in Sierra Club and Defenders of Wildlife. Cnty. of El Paso v.

17 Chertoff, No. EP-08-CA-196-FM, 2008 WL 4372693, at *3 (W.D. Tex. Aug. 29, 2008).

18 Thus, while prior courts have used different language to articulate Congress’s stated 19 20 policy goal, they do not provide contradictory interpretations of section 102’s general

21 policy.

22

Therefore, the Court finds that Congress clearly delineated the “general policy” of

23

24 section 102 as deterrence of illegal crossings through construction of additional physical

25 barriers to improve U.S. border protection, 8 U.S.C. § 1103, and has satisfied the first

26 prong of the intelligible principle standard.
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1

b. Prong Two: Whether Section 102 Clearly Delineates a Public

2

Agency

3

4

It is undisputed that IIRIRA satisfies the second prong of the intelligible principle

5 standard because “the Secretary of Homeland Security” is to apply the general policy.

6 See 8 U.S.C. § 1103(c)(1).

7

8

c. Prong Three: Whether Section 102 Clearly Delineates “the

9

Boundaries of Delegated Authority”

10

All Plaintiffs challenge section 102(c) on the third factor of the intelligible

11

12 principle standard, arguing that the boundaries of the delegated authority are not clearly

13 delineated. They distinguish the Waivers from past waivers found to be constitutional.

14 Past waivers focused solely on building new fencing pursuant to the specific mandates of 15 16 Congress in section 102(b) which limited the DHS Secretary’s waiver authority to the

17 initial border construction. However, the Waivers at issue concern projects not

18 previously identified by section 102. Therefore, they argue that the grant of waiver 19 20 authority does not apply to these new projects.

21

Defendants argue that Congress provided specific boundaries for its delegated

22 authority, satisfying the third prong of the intelligible principle standard. This authority 23 24 may only be exercised to “waive all legal requirements [the] Secretary . . . determines

25 necessary to ensure expeditious construction of the barriers and roads under this section.”

26 (Dkt. No. 35-1 at 72.) The boundaries, they contend, are both geographic, DHS can only

27

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1 waive laws in connection with construction of a physical barrier at the U.S. border, and

2 temporally necessary, DHS can only waive laws necessary to quickly construct a wall. 3 4 Contrary to Plaintiffs’ demand for specificity, the boundary need not include specific

5 criteria or guidelines.22 In short, Congress has the power to be flexible and broad when

6 delegating authority.

7

8

Here, section 102(c) provides boundaries that limit the Secretary’s authority to

9 waive all laws that are “necessary to ensure expeditious construction of the barriers and

10 roads.” See Defenders of Wildlife, 527 F. Supp. 2d at 127 (boundaries clearly defined by 11 12 Congress’ requirement that Secretary may only waive laws that he determines are

13 “necessary to ensure expeditious construction”); Sierra Club, 2005 WL 8153059, at *6

14 (boundary of authority was limited to actions “necessary to install additional barriers and 15 16 roads” and specifically, the construction of the Triple Fence in San Diego); Cnty. of El

17 Paso, 2008 WL 43726993, at *4 (boundaries clearly defined relying on reasoning in

18 Sierra Club and Defenders of Wildlife). 19

20

21

22 22 California Plaintiffs argue that Defendants fail to address their argument that while the non-delegation
doctrine applies to cases where Congress provides the Executive power to decide which laws could be

23 modified or terminated and under what circumstances, it has not authorized the Secretary to pick and

choose among enacted laws and decide, which legislation to waive. Section 102 does not provide the
24 Secretary with guidance as to which laws are to be waived or why. Because Defendants failed to

25

address this argument, California Plaintiffs argue section 102(c) is unconstitutional and must be invalidated. However, Defendants addressed the boundaries of the Secretary’s authority to waive laws

26 limited to construction along the U.S. border and only those laws “necessary to ensure expeditious
construction.” (Dkt. No. 42 at 37.)

27

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1

While it is true that section 102(c) contains considerably fewer details than other

2 challenged statutes,23 the Supreme Court does not demand that Congress outline specific 3 4 factors or criteria when delegating authority.24 Rather, Congress need only delineate the

5 boundaries of the delegated authority in broad and general terms. See Opp Cotton Mills,

6 Inc., 312 U.S. at 145. For example, in upholding Congress’s broad delegation of power 7 8 to the EPA Administrator, the Whitman Court noted that “even in sweeping regulatory

9 schemes we have never demanded . . . that statutes provide a ‘determinate criterion’ for

10 saying ‘how much [of the regulated harm] is too much.’” Whitman v. American 11 12 Trucking Ass’ns, 531 U.S. 457, 475 (2001). This is consistent with prior Supreme Court

13 precedent holding that “[o]nly if we could say that there is an absence of standards for the

14 guidance of the Administrator’s action, so that it would be impossible in a proper 15 16 proceeding to ascertain whether the will of Congress has been obeyed, would we be

17 justified in overriding [Congress’s] choice of means for effecting its declared purpose. . .

18 .” Yakus v. United States, 321 U.S. 414, 426 (1944). 19

20

21

22

23

23 In Mistretta, for example, the statute in question authorized an independent Sentencing Commission to
24 formulate sentencing guidelines for federal offenses. Mistretta, 488 U.S. at 367. Congress identified

25 three goals, four purposes, numerous guidelines, eleven factors for sentencing consideration, a
prohibition on certain factors for sentencing consideration. Mistretta, 488 U.S. at 374-78.

26 24 In fact, the Court in Mistretta even recognized that the Act in question set forth “more than merely an

27 ‘intelligible principle.’” Mistretta, 488 U.S. at 379 (emphasis added).

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1

Section 102 of IIRIRA is easily distinguishable from the statutes in Panama

2 Refining Co. and A.L.A. Schechter Poultry Corp. The statute at issue in Panama 3 4 Refining Co. “provided literally no guidance for the exercise of discretion,” while the

5 statute challenged in A.L.A. Schechter Poultry Corp “conferred authority to regulate the

6 entire economy on the basis of no more precise a standard than stimulating the economy 7 8 by assuring ‘fair competition.’” Whitman, 531 U.S. at 474.

9

Here, however, Congress expressly limits the DHS Secretary’s discretion to waive

10 laws to those “necessary to ensure expeditious construction of the barriers and roads 11 12 under this section.” 8 U.S.C. § 1103(c)(1). Congress’s use of the word “necessary” to

13 define the scope of discretion is well with the limits of non-delegation precedents. In

14 Touby, for example, the Supreme Court upheld a provision of the Controlled Substances 15 16 Act that permitted the Attorney General to schedule a drug when doing so is “necessary

17 to avoid an imminent hazard to the public safety.” Touby v. United States, 500 U.S. 160,

18 165 (1991). Similarly, in Indus. Union Dep’t, the Supreme Court upheld a provision of 19 20 the Occupational Safety and Health Act that empowered the Secretary of Labor to

21 promulgate standards that are “reasonably necessary or appropriate to provide safe or

22 healthful employment and places of employment.” Indus. Union Dep’t., AFL-CIO v. 23 24 American Petroleum Inst., 448 U.S. 607, 646 (1980). Finally, in Whitman, the Supreme

25 Court upheld a provision of the Clean Air Act that directed the EPA Administrator to set

26 standards that are “requisite to protect the public health” with “an adequate margin of

27

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1 safety.” Whitman, 531 U.S. at 475. “Requisite,” in this context, “mean[s] sufficient, but

2 not more than necessary.” Id. at 473. Furthermore, this limit on authority is the same 3 4 limit that was approved by the court in Sierra Club.

5

Both Congress and the Executive share responsibilities in protecting the country

6 from terrorists and contraband illegally entering at the borders. Border barriers, roads, 7 8 and detection equipment help provide a measure of deterrence against illegal entries.

9 With section 102, Congress delegated to its executive counterpart, the responsibility to

10 construct border barriers as needed in areas of high illegal entry to detect and deter illegal 11 12 entries. In an increasingly complex and changing world, this delegation avoids the need

13 for Congress to pass a new law to authorize the construction of every border project.

14 Similarly, Congress enacted a law which attempts to avoid delays caused by lawsuits 15 16 challenging the construction of barriers by allowing the Secretary to waive the

17 application and enforcement of federal, state and local laws during the construction of a

18 border barrier as necessary. The Court concludes that Congress has clearly delineated the 19 20 “boundaries of delegated authority” in terms previously upheld by the Supreme Court,

21 thereby satisfying the third prong of the intelligible principle standard.

22

d. Whether Congress’s Grant of Authority Constitutes “Unfettered

23

24

Discretion”

25

Coalition Plaintiffs cite to Zivotofsky to suggest that the DHS secretary does not

26 have exclusive control over foreign affairs, and thus the statutory grant of discretion

27

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1 should be more limited. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2089-90 (2015).

2 Defendants argue that the Executive Branch has significant, independent control over 3 4 immigration, foreign affairs, and national security, and therefore broad waiver authority

5 is justified. (Dkt. No. 35 at 74.) They attack Coalition Plaintiffs’ reliance on Zivotofsky

6 and cite to binding precedent in support of their position. See Knauff v. Shaughnessy, 7 8 338 U.S. 537, 542-43 (1950) (“The exclusion of aliens is a fundamental act of

9 sovereignty . . . [and] is inherent in the executive power to control the foreign affairs of

10 the nation.”).

11

12

Congress can confer more discretion to an entity when that entity already has

13 significant, independent authority over the subject matter. See Loving, 517 U.S. at 772-

14 73. Here, Congress delegated broad authority to the DHS Secretary, an agent of the 15 16 Executive Branch. See 8 U.S.C. § 1103(c).

17

As stated in Sierra Club, the Executive Branch has independent and significant

18 constitutional authority in the area of “immigration and border control enforcement and 19 20 national security.” Sierra Club, 2005 WL 8153059, at *6 (citing Knauff, 338 U.S. at 542-

21 43). Additionally, the court in Save Our Heritage confirmed that the construction of San

22 Diego barriers relate to “foreign affairs and immigration control—areas over which the 23 24 Executive Branch traditionally exercises independent authority.” Save Our Heritage, 533

25 F. Supp. 2d at 63 (citing Defenders of Wildlife, 527 F. Supp. 2d at 129).

26

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1

Nothing about DHS’s authority has changed since prior rulings. The only

2 difference between this case and prior cases is the type of barrier being constructed. This 3 4 distinction is not relevant under this analysis.

5

Coalition Plaintiffs’ reliance on Zivotofsky is not persuasive. The power

6 contemplated in Zivotofsky was the President’s power to recognize foreign nations and 7 8 governments and the issue was whether the President has exclusive power to recognize

9 nations. Zivotofsky, 135 S. Ct. at 2084.

10

Here, the issue is not whether the President has exclusive power over foreign

11

12 affairs, but whether the DHS Secretary, acting as an agent of the Executive, has

13 significant, independent control over immigration. Therefore, because the DHS

14 Secretary, acting as an agent of the Executive Branch, has significant, independent 15 16 authority over immigration, Congress is justified in delegating broad authority. The

17 Court concludes that section 102 does not violate the non-delegation doctrine.

18

California Plaintiffs also present a separate argument that the lack of judicial

19

20 review under section 102 violates the non-delegation doctrine and essentially imports a

21 fourth requirement to the intelligible principle standard. (Dkt. No. 30-2 at 45.) By

22 limiting review to only constitutional challenges, California Plaintiffs argue, Congress is 23 24 preventing the judicial branch from reviewing Congress’s delegation of authority.

25 California Plaintiffs further contend that judicial review is the only way to ensure that the

26 DHS Secretary adheres to the intelligible principle Congress provided. California cites to

27

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1 three Supreme Court cases in support of this argument.25 In none of these cases,

2 however, did the Court strike down the statute for lack of judicial review.26

3

4

Defendants argue that Plaintiffs’ argument has been expressly rejected by the

5 Ninth Circuit. United States v. Bozarov, 974 F.2d 1037, 1041-45 (9th Cir. 1992).

6 In Bozarov, the Ninth Circuit held that the nondelegation doctrine was not violated 7 8 because the EAA precluded judicial review. “In sum, we believe that the Supreme Court

9 cases upholding judicial preclusion of agency decisions, the language of the APA, and

10 the fact that the EAA involves foreign policy issues support our conclusion that the 11 12 EAA’s preclusion of judicial review is constitutional.” Id. at 1044. Furthermore, the

13 Ninth Circuit also noted that its conclusion that the prelusion of judicial review did not

14 violate the nondelegation clause was “bolstered” by the availability of judicial review for 15 16 constitutional claims and ultra vires claims. Id. at 1044-45. Similarly, in Cnty. of El

17 Paso, the same argument concerning whether judicial review was a requirement of the

18 intelligible principle standard was rejected by the court. Cnty. of El Paso, 2008 WL 19 20 4372693 at *4-6.

21

22
25 A.L.A. Schechter Poultry Corp., 295 U.S. at 533; American Power & Light Co. v. SEC, 329 U.S. 90,
23 106 (1946); and Touby, 500 U.S. at 165.

24 26 In A.L.A. Schechter Poultry, the Court struck down the statute not on the grounds that it lacked
judicial review, but because of the Act’s failure to impose limitations on discretion. 295 U.S. at 533. In

25 American Power, the plaintiffs challenged the statute not on the grounds that it lacked judicial review,

but rather because it lacked “ascertainable standards,” thereby granting the SEC unfettered discretion.
26 329 U.S. at 104. In Touby, the dispositive issue was not judicial review, rather whether the delegation

27 afforded too much discretion. 500 U.S. at 165.

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1

It is true that the Supreme Court has recognized that judicial review provides an

2 important check on the power delegated by Congress. See Touby, 500 U.S. at 167-69; 3 4 A.L.A. Schechter Poultry Corp., 295 U.S. at 533; Yakus, 321 U.S. at 426 (recognizing

5 the importance of judicial review by observing that one of the purposes of requiring

6 Congress to provide intelligible principles was so that a tribunal “in a proper proceeding 7 8 [may] ascertain whether the will of Congress has been obeyed.”). These cases recognize

9 that judicial review allows for the enforcement of the intelligible principle requirement

10 and the separation of powers. At the same time, a Supreme Court nondelegation doctrine 11 12 case has never turned on the presence or absence of judicial review.

13

While unlimited judicial review would assure compliance with all legal

14 requirements, it would defeat the purpose of the law to expedite the construction of 15 16 border barriers and roads in areas where they are needed. In this case, as in Bozarov,

17 section 102 allows judicial review of constitutional claims as well as ultra vires claim

18 which bolsters the conclusion that section 102 does not violate the nondelegation 19 20 doctrine. Accordingly, the California Plaintiffs’ argument concerning violation of the

21 non-delegation doctrine based on lack of judicial review is unsupported by law.

22

In conclusion, the Court GRANTS Defendants’ motions for summary judgment

23

24 and DENIES Plaintiffs’ motions for summary judgment on the Non-Delegation Doctrine

25 and separation of powers claims.

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1

2. Article II, Section 3 of the U.S. Constitution - Take Care Clause

2

Center Plaintiff alleges that the August 2 Waiver Determination violates the Take

3

4 Care Clause contending that it applies to Executive Officers, including the Secretary of

5 DHS. First, it claims that the DHS exceeded the authority delegated to it by issuing the

6 August 2 Waiver under section 102 even though it was not authorized by section 102(b). 7 8 (Dkt. No. 28-1 at 42-43.) Second, it asserts that even if section 102(c) waiver provision

9 is not limited to those barriers mandated under section 102(b), the August 2 Waiver

10 Determination does not comply with the direction in section 102(a) that the barriers be 11 12 built in “areas of high illegal entry.” (Id. at 43.) Therefore, Center Plaintiff argues, the

13 August 2 Waiver Determination violated the Executive’s duty to faithfully execute the

14 statutory mandate. (Id.) The Center Plaintiff’s SAC alleges that “[a]mong the laws the 15 16 Take Care Clause mandates be ‘faithfully executed’ are NEPA and the ESA, as well as

17 the conditions and limitations of IIRIRA section 102 itself.” (Dkt. No. 16, SAC ¶ 145.)

18

Defendants argue that the Take Care Clause only applies to the actions of the

19

20 President and not the Secretary, that no court has treated the Take Care Clause as a basis

21 for affirmative relief, and that it is an improper attempt by Center Plaintiff to recast its

22 ultra vires challenge under the Take Care Clause.

23

24

Article II, Section 3 of the United States Constitution states that the President

25 “shall take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 2, cl. 3.

26

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First, the Court disagrees with Defendants’ argument that the Take Care Clause

2 applies only to the President, and not his cabinet members. “The vesting of the executive 3 4 power in the President was essentially a grant of power to execute the laws. But the

5 President alone and unaided could not execute the laws. He must execute them by the

6 assistance of subordinates.” Myers v. United States, 272 U.S. 52, 117 (1926); see also 7 8 Printz v. United States, 521 U.S. 898, 922 (1997) (“The Constitution does not leave to

9 speculation who is to administer the laws enacted by Congress; the President, it says,

10 “shall take Care that the Laws be faithfully executed,” Art. II, § 3, personally and through 11 12 officers whom he appoints . . . .”) Moreover, when the Supreme Court granted certiorari

13 in United States v. Texas, it, sua sponte, asked for additional briefing on “Whether the

14 Guidance27 violates the Take Care Clause of the Constitution, Art. II, 3.” United States v. 15 16 Texas, 136 S. Ct. 906 (2016). The issue was whether the Secretary of DHS’ actions

17 establishing Deferred Action for Parents of Americans and Lawful Permanent Residents

18 (“DAPA”) violated the Take Care Clause, an issue not addressed by the district court.28 19 20 Texas v. United States, 86 F. Supp. 3d 591, 607 (2015). Therefore, the Supreme Court’s

21

22
27 The government described Deferred Action for Parents of Americans and Lawful Permanent

23 Residents (“DAPA”) as “Deferred Action Guidance.” Texas v. United States, 86 F. Supp. 3d 591, 667

(2015).
24 28 The district court in Texas noted that the issue was whether the Secretary of DHS has the power to

25

establish DAPA stating that the President had not issued any executive orders or presidential proclamation or communique concerning DAPA but that it was solely established by the Secretary.

26 Texas, 86 F. Supp. 3d at 607. In contrast, in this case, President Trump issued an Executive Order on
January 25, 2017 directing the Secretary of DHS to take steps to “obtain complete operations control . . .

27 of the southern border.” (Dkt. No. 30-5, Cayaban Decl., Ex. 7, Executive Order, 82 Fed. Reg. 8793.)

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1 decision to sua sponte address the Take Care clause in relation to an act of the Secretary

2 of DHS indicates that the Take Care clause applies not only to the President but also his 3 4 Executive officers.

5

As to whether the August 2 Waiver Determination violates the Take Care clause,

6 Center Plaintiff cites to three cases to support the assertion that the Executive is required 7 8 to “execute the laws, not make them.” First, it cites to a sentence in the conclusion of

9 Medellin v. Texas, 552 U.S. 491, 532 (2008) stating that the Take Care clause that laws

10 be faithfully executed requires the Executive to “execute the law, not make them.” Id. at 11 12 532. But Medellin dealt with the legal effect of an international treaty on domestic law.

13 Id. at 504. In fact, the Court mentioned that the Take Care clause did not apply in the

14 case since the International Court of Justice’s decision was an international judgment. Id. 15 16 at 532. Medellin did not concern a statute enacted by Congress and is not helpful in the

17 Take Care analysis.

18

Next, Center Plaintiff cites to Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

19

20 579, 587 (1952) in support of its argument that the President’s power is to faithfully

21 execute the laws, not make them. Due to an impending nation-wide strike of the steel

22 mills, the President, on his own, issued an Executive Order directing the Secretary of 23 24 Commerce to take possession of most of the country’s steel mills and keep them running.

25 Id. at 583. The steel mill owners filed suit alleging that the seizures were not authorized

26 by Congress or any other constitutional provision. Id. The Court agreed explaining that

27

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1 the President’s power must come from either an act of Congress or from the Constitution.

2 Id. at 585. However, in the case, the Executive Order “did not direct that a congressional 3 4 policy be executed in a manner prescribed by Congress—it directs that a presidential

5 policy be executed in a manner prescribed by the President.” Id. at 588. Such conduct to

6 make laws is only delegated to Congress, and not the President. Id. The Supreme Court 7 8 affirmed the district court’s preliminary injunction restraining the Secretary from

9 enforcing the Executive Order. Id. at 584. In contrast, in this case, Congress enacted

10 section 102(c), which grants the Secretary of DHS not only the discretion to waive all 11 12 laws when “necessary to ensure expeditious construction of the barriers and roads” but

13 also discretion to determine whether it is necessary to install barriers to deter “illegal

14 crossings in areas of high illegal entry.” See 8 U.S.C. §§ 1103(a) & (c). Therefore, 15 16 Youngstown Sheet & Tube Co. does not support Center Plaintiff’s position.

17

Finally, in Myers v. United States, 272 U.S. 52 (1926), the question presented to

18 the Supreme Court was “whether under the Constitution the President has the exclusive 19 20 power of removing executive officers of the United States whom he has appointed by and

21 with the advice and consent of the Senate.” Id. at 60. The case dealt with the power of

22 the President to appoint and remove executive officers as opposed to the discretion of the 23 24 Secretary of the DHS to carry out section 102, a provision enacted by Congress.

25

The cases cited by Center Plaintiff do not address the application of the Take Care

26 clause. It merely cite to these cases for the assertion that the President’s duty under the

27

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1 Take Care clause is to execute laws, not make them. However, none of the cases cited by

2 Center Plaintiff address an executive head’s exercise of his or her discretionary authority 3 4 to carry out the mandates of Congress. As a result, they provide no guidance as to how

5 the Take Care clause would or should apply in this case. Moreover, given that the

6 challenged steps taken by the Secretary are ones that are plausibly called for by an act of 7 8 Congress, a Take Care challenge in this case would essentially open the doors to an

9 undisciplined and unguided review process for all decisions made by the Executive

10 Department.

11

12

Consequently, Center Plaintiff has not demonstrated that the Take Care clause in

13 this case has been violated. Thus, the Court GRANTS Defendants’ motion for summary

14 judgment and DENIES Center Plaintiff’s motion for summary judgment on the Take 15 16 Care Clause claim.

17

3. Article I, Sections 2 & 3 of the United States Constitution

18

California Plaintiffs argue that section 102(c) violates Article I, Sections 2 and 3 of

19

20 the U.S. Constitution by allowing the Secretary to waive numerous criminal laws

21 concerning the border wall projects without providing a specific list of criminal laws that

22 are waived.29 Defendants contend that California Plaintiffs have provided no legal 23

24

25 29 For example, California Plaintiffs argue the Secretary waived the Resource Conservation Recovery

26 Act, 42 U.S.C. § 6928, which makes it a crime to knowingly dump hazardous waste that puts another
person in imminent danger of death or serious bodily injury, and waived the Clean Water Act, 33 U.S.C. §

27 1319(c) making it a crime to knowingly pollute a river, stream or other water.

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1 authority to support their argument that Article I, Sections 2 and 3 address Congress’

2 delegation of power to waive criminal law to the Executive.

3

4

Article 1 Section 3 provides,

5

Judgment in Cases of Impeachment shall not extend further than to removal

6

from Office, and disqualification to hold and enjoy any Office . . . but the Party convicted shall nevertheless be liable and subject to Indictment, Trial,

7

Judgment and Punishment, according to Law.

8 U.S. Const. art. I, § 3, cl. 7. This section concerns impeachment and punishment of 9 10 conviction and is “an attempt by the framers to anticipate and respond to questions that

11 might arise regarding the procedural right of the accused during the impeachment

12 process.” United States v. Claiborne, 727 F.2d 842, 846 (9th Cir. 1984) (quoting United 13 14 States v. Hastings, 681 F.2d 706, 710 (11th Cir. 1982)). California Plaintiffs also cite to

15 Article I, Section 2 which states that the President “shall have Power to grant Reprieves

16 and Pardons for Offenses against the United States, except in Cases of Impeachment.” 17 18 U.S. Const. art I, § 2, cl. 1.

19

California Plaintiffs invoke these two constitutional provisions arguing that

20 Congress cannot grant the Executive Branch sweeping powers to waive federal criminal 21 22 laws without specifically listing the criminal laws to be waived and that it places the

23 Executive Branch above the law. However, California Plaintiffs provide no legal

24 authority to support their argument that Article I, Sections 2 & 3 supports their 25 26 proposition. None of their cited cases concern the application of Article I, Sections 2 or 3

27

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1 of the U.S. Constitution. California Plaintiffs have not demonstrated they are entitled to

2 judgment as a matter of law that section 102 and the Waiver Determinations violate 3 4 Article I, Sections 2 and 3 of the U.S. Constitution. The Court GRANTS Defendant’s

5 motion for summary judgment and DENIES California Plaintiffs’ motion for summary

6 judgment on this claim.

7

8

4. Article I, Section 7 of the U.S. Constitution - Presentment Clause

9

All Plaintiffs assert that the DHS Secretaries’ waiver of more than thirty

10 environmental laws through section 102(c) violates Article I, Section 7 of the U.S. 11 12 Constitution. They rely heavily on Clinton v. City of New York, 524 U.S. 417 (1998)

13 arguing that allowing DHS to waive laws through section 102(c) amounts to an

14 amendment or repeal of statutes. Section 102 gives the DHS Secretary “nearly unbridled 15 16 discretion” to waive laws and would waive laws in which DHS has no expertise. (Dkt.

17 No. 30-2 at 49.) Since Congress provides no guidance as to which laws to waive, the

18 Secretary’s actions will solely reflect the Executive’s will. (Id. at 50.)

19

20

Defendants argue that the waiver of the environmental laws through section 102(c)

21 does not amount to an amendment or repeal of statute and only select statutes are waived

22 in an effort to build roads and barriers next to portions of the border. Defendants liken 23 24 the waiver to an “executive grant of immunity or waiver of claim” which “has never been

25 recognized as a form of legislative repeal.” Id. (quoting In re Nat’l Sec. Agency

26 Telecomm. Records Litig., 671 F.3d 881 (9th Cir. 2011)). Defendants argue that here,

27

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1 like in Telecomm., there is no constitutional violation of the Presentment Clause because

2 the partially waived statutes remain the same from when Congress approved the statute 3 4 and the President signed it. Defendants contend that here, unlike Clinton, there is no

5 separation of powers issue because Congress gave DHS authority to partially waive

6 statutes for a border wall when Congress amended section 102. Defendants distinguish 7 8 the situation here from Clinton by noting that DHS Secretary is implementing

9 congressional intent rather than rejecting it.

10

According to the Presentment Clause, “[e]very Bill which shall have passed the

11

12 House of Representatives and the Senate, shall, before it become a Law, be presented to

13 the President of the United States: If he approve he shall sign it, but if not he shall return

14 it, with his Objections to that House in which it shall have originated, who shall enter the 15 16 Objections at large on their Journal, and proceed to reconsider it.” U.S. Const. art I., § 7.

17 The Constitution does not allow the Executive “to enact, to amend, or to repeal statutes.”

18 Clinton v. City of New York, 524 U.S. 417, 438 (1998). “‘Amendment and repeal of 19 20 statutes, no less than enactment, must conform with’ the bicameralism and presentment

21 requirements of Article I.” Defenders of Wildlife, 527 F. Supp. 2d at 123-24 (quoting

22 INS v. Chadha, 462 U.S. 919, 954 (1983)).

23

24

In Clinton, the U.S. Supreme Court invalidated the Line Item Veto Act because

25 “[i]n both legal and practical effect,” the Line Item Veto gave the President the power to

26 amend “Acts of Congress by repealing a portion of each.” Clinton, 524 U.S. at 438. In

27

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1 Clinton, cancellation of legal provisions altered the statute’s “legal force or effect.” Id. at

2 437. In essence, the Line Item Veto Act replaced the once legally-passed bills with 3 4 truncated replacements. Id. at 438. The Supreme Court considered this alteration a

5 disruption of the bicameralism and presentment requirements of the Presentment Clause.

6 Id. 7
8

This situation, however, is distinguishable from Clinton. Here, the Waivers are

9 narrow in scope and only for the purpose of building border barriers something that is

10 permitted by section 102(c). In Clinton, the Line Item Veto Act rendered the cancelled 11 12 legal provisions powerless and effectively changed the law entirely. Id. at 437. Here, the

13 statutes largely retain legal force and effect because the §102(c) waivers only disturb the

14 waived statutes for a specific purpose and for a specific time.

15

16

In Defenders of Wildlife, the district court addressed the plaintiffs’ presentment

17 clause challenge to section 102(c) and stated,

18

The REAL ID Act’s waiver provision differs significantly from the Line

19

Item Veto Act. The Secretary has no authority to alter the text of any

20

statute, repeal any law, or cancel any statutory provision, in whole or in part. Each of the twenty laws waived by the Secretary on October 26, 2007,

21

retains the same legal force and effect as it had when it was passed by both

22

houses of Congress and presented to the President.

23 527 F. Supp. 2d at 124; see also Cnty. of El Paso, 2008 WL 4372693, at *6-7. The court

24 also explained that the waiver did not constitute an unconstitutional “partial repeal” 25 26 because this was not an instance in which “any waiver, no matter how limited in scope,

27

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1 would violate Article I because it would allow the Executive Branch to unilaterally

2 ‘repeal’ or nullify the law with respect to the limited purpose delineated by the waiver 3 4 legislation.” Defenders of Wildlife, 527 F. Supp. at 124. The Court concludes that the

5 Secretaries’ Waiver Determinations made pursuant section 102(c) do not violate the

6 Presentment Clause. The Court GRANTS Defendants’ motions for summary judgment 7 8 and DENIES Plaintiffs’ motions for summary judgment on this issue.

9

5. Access to the Courts

10

a. Due Process/First Amendment Right to Petition/Article III30

11

12

Coalition Plaintiffs argue in their motion, but not in their reply, in one paragraph,

13 that section 102(c)(2) deprives them of their due process rights and impairs their First

14 Amendment right to petition the government. (Dkt. No. 29-1 at 36-37.) They argue they 15 16 have a property and liberty interest in ensuring environmental laws and interests are

17 protected and section 102(c)(2) removes any procedure that would protect their interests

18 from arbitrary and capricious conduct by the Secretary. 19

20

21

22
30 In reply, California Plaintiffs appear to assert a void-for-vagueness challenge under the First

23 Amendment in response to an argument made in Defendants’ brief. (Dkt. No. at 25; Dkt. No. 35-1 at 84

n.53.) The void-for vagueness argument, raised initially in California Plaintiffs’ reply, morphed into a
24 claim based on the parties’ argument. California Plaintiffs did not raise the issue of void for vagueness

25

under the First Amendment in their moving papers, and in fact, is not a claim alleged in their complaint. Instead, their complaint and their moving brief claim that section 102(c) is vague and therefore a

26 violation of their due process rights under the Fifth Amendment which is distinct from a void-for-
vagueness claim. The Court declines to address the void-for-vagueness challenge, an issue not raised in

27 California Plaintiffs’ complaint or moving brief.

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1

California Plaintiffs argue that section 102(c)’s unreasonable procedural hurdles

2 violate Californians’ Article III and due process rights and the rights to potential parties’ 3 4 ability to petition the Court. They argue that the 2017 Waivers fail to identify the state

5 laws that are purportedly waived. They also argue that the San Diego Waiver is vague

6 when it states that DHS intends to install “various border infrastructure projects” within 7 8 the “Project Areas” but fails to describe these other projects. Next, they argue that the

9 San Diego Waiver does not provide reasonable notice as to when undisclosed projects

10 will be constructed and purports to waive federal and state laws for the on-going 11 12 maintenance of these structures. These uncertainties leave California unable to determine

13 whether the projects will be the types of projects authorized by section 102, whether the

14 areas will be considered areas of high illegal entry at the time they are installed and 15 16 whether California should file a claim to protect their individual rights. Also, by barring

17 all non-constitutional claims, the California Plaintiffs contend section 102(c)(2)(A)

18 interferes with its right of access to the courts.31 California claims it has an interest in 19 20 enforcing its own state laws and to preserve state property adjacent to the Projects.

21

22

23

31 California Plaintiffs also summarily argue that the 60 day statute of limitations from the date of
24 publication in the Federal Register creates the risk that Californians will not learn about the full extent of

25

the 2017 Waivers as it lacks clarity and fails to provide adequate notice which violates Article III of the U.S. Constitution. Defendants respond that this challenge is an irrelevant hypothetical as their

26 complaint was timely filed. California Plaintiffs do not reply to Defendants’ argument. The Court
agrees that California Plaintiffs are asserting an argument that has no application to them as they filed

27 their complaint timely; moreover, they provide no case law to support their argument.

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1

Defendants claim that Plaintiffs have not demonstrated that they have a cognizable

2 life, liberty or property interest for a due process violation. They contend that California 3 4 Plaintiffs’ assertion of Article III standing is distinct from a liberty or property interest

5 protected by the Fifth Amendment.

6

The Fifth Amendment's Due Process Clause states “[n]o person shall . . . be

7

8 deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V.

9 As a threshold, a plaintiff must show a liberty or property interest protected by the

10 Constitution. Ching v. Mayorkas, 725 F.3d 1149, 1155 (9th Cir. 2013).

11

12

Coalition Plaintiffs summarily state they have property and liberty interests in

13 ensuring environmental laws and interest are protected.32 California also claims it has an

14 interest in enforcing its own state laws and to preserve state property adjacent to the 15 16 Projects. However, Coalition Plaintiffs and California have not provided any case law

17 supporting the claim that their property and/or liberty interests are protected by the

18 Constitution and have failed to provide any meaningful analysis on the due process 19 20 violation claim. Moreover, the Court notes that many of California Plaintiffs’ arguments

21 are speculative and concern issues that may arise in the future with future border wall

22

23

24

25

32 In their reply, Coalition Plaintiffs dispute Defendants’ argument that they failed to identify a liberty or property interest to support a due process claim and argued they asserted their right to access the courts

26 and to enforce environmental and animal-protection laws. (Dkt. No. 38 at 26 n.10.) However, in their
moving papers, Coalition Plaintiffs do not assert an interest in their right to access the courts in their due

27 process analysis but solely an interest in “environmental laws and interests.” (Dkt. No. 29-1 at 36-37.)

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1 construction projects and do not address the current projects. The Court declines to

2 address any issues concerning future projects as California Plaintiffs have not provided 3 4 legal support for their arguments.

5

California Plaintiffs also claim that the 2017 Waivers do not identify which

6 specific state laws are purportedly waived as the waiver language waives a specific list of 7 8 over 30 federal statutes, “including all federal, state, or other laws, regulations and legal

9 requirements of, deriving from, or related to the subject of, the following statutes.” (Dkt.

10 No. 30-6, Cayaban Decl., Ex. 11, 82 Fed. Reg. 35985; id., Ex. 12, 82 Fed. Reg. 42830.) 11 12 California Plaintiffs broadly interpret the provision to include numerous state laws which

13 Defendants argue are inapplicable to the Projects at issue. Once again, California

14 Plaintiffs fail to provide any legal authority on whether a statute that permits the waiver 15 16 of laws requires specificity as to which laws are implicated. The one case cited, FCC v.

17 Fox Television Stations, Inc., 567 U.S. 239, 253 (2012), deals with a statute that either

18 requires or forbids conduct, but does not involve the waiver of laws.

19

20

Lastly, Coalition Plaintiffs, in one paragraph, and not addressed in their reply,

21 (Dkt. No. 29-1 at 36), and California Plaintiffs, raised in a paragraph, and not in their

22 reply, (Dkt. No. 30-2 at 41), further claim that their First Amendment Right to Petition 23 24 the government has been abridged by the judicial review bar in section 102(c)(2).

25

The First Amendment guarantees “the right of the people . . . to petition the

26 Government for a redress of grievances.” U.S. Const. amend. I.
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1

A one paragraph argument, by Coalition Plaintiffs and California Plaintiffs, is not

2 sufficient to meaningfully address a First Amendment challenge. The Court declines to 3 4 address an issue not properly briefed by the parties.

5

Therefore, the Court GRANTS Defendants’ motions for summary judgment and

6 DENIES Coalition and California Plaintiffs’ motions for summary judgment on these 7 8 issues.

9

6. Violation of the Tenth Amendment33 - Concurrent State and

10

Federal Jurisdiction

11

12

Coalition Plaintiffs argue that Congress lacks the power to eliminate the concurrent

13 jurisdiction of state courts unless it vests that power exclusively with a federal court.

14 (Dkt. No. 29-1 at 35-36.) They contend that section 102 eliminates both federal and state 15 16 jurisdiction by “vesting ‘exclusive jurisdiction’ over issues into a federal court only then

17 to also remove that judicial power from the very federal court it just vested with that

18 power.” (Id. at 36.) Defendants respond that Congress has specifically displaced state 19 20 court jurisdiction when it enacted section 102(c)(2)(A), and expressly made federal

21 jurisdiction exclusive for challenges to the waiver determinations.

22

23

24

25

26 33 In their papers, Coalition Plaintiffs do not allege whether the concurrent federal and state jurisdiction
argument is premised on a Tenth Amendment violation. However, their complaint alleges a Tenth

27 Amendment violation based on this argument. (Dkt. No. 26, FAC ¶ 115.)

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1

“Under our federal system, the States possess sovereignty concurrent with that of

2 the Federal Government, subject only to limitations imposed by the Supremacy Clause. 3 4 Under this system of dual sovereignty, we have consistently held that state courts have

5 inherent authority, and are thus presumptively competent, to adjudicate claims arising

6 under the laws of the United States.” Tafflin v. Levitt, 493 U.S. 455, 458 (1990). “This 7 8 deeply rooted presumption in favor of concurrent state court jurisdiction is, of course,

9 rebutted if Congress affirmatively ousts the state courts of jurisdiction over a particular

10 federal claim.” Id. at 459.

11

12

Section 102(c)(2)(A) grants the federal court with exclusive jurisdiction to handle

13 all causes of action arising under section 102(c)(1) alleging a violation of the Constitution

14 but shall not have jurisdiction over any other claim. 8 U.S.C. § 1103(c)(2)(A). By 15 16 enacting section 102(c), Congress’s authority to grant exclusive jurisdiction to review any

17 waiver determination to the federal district court is undisputed by the parties. Congress

18 specifically granted federal district courts exclusive jurisdiction of any constitutional 19 20 challenges but barred judicial review of any non-constitutional claim. Coalition Plaintiffs

21 have not provided any legal authority that granting federal court exclusive jurisdiction

22 over waiver determinations for solely constitutional clams violates the federal system of 23 24 concurrent federal and state jurisdiction.

25

Accordingly, the Court GRANTS Defendants’ motion for summary judgment and

26 DENIES Coalition Plaintiffs’ motion for summary judgment on this issue.

27

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1

7. Violation of California’s Equal Sovereignty and Police Powers under

2

the Tenth Amendment

3

4

The Tenth Amendment states that “[t]he powers not delegated to the United States

5 by the Constitution, nor prohibited by it to the states, are reserved to the States

6 respectively, or to the people.” U.S. Const. amend X. The State of California argues that 7 8 under the authority of Shelby Cnty., Alabama v. Holder, 133 S. Ct. 2612 (2013), section

9 102 violates the Tenth Amendment. California asserts that the Waivers violate the Tenth

10 Amendment by burdening California, but not other states, when progress has been made 11 12 curbing the problem that section 102 seeks to address, i.e. the dramatic reduction in the

13 number of illegal crossings at the border. California also contends that under City of

14 Boerne v. Flores, 521 U.S. 507, 534-35 (1997), section 102 interferes with California’s 15 16 police powers by intruding on its state sovereignty by waiving all state and local laws and

17 regulations without any parameters and intruding on every level of government under a

18 grossly broad law. Defendants argue that Shelby and City of Boerne are distinguishable 19 20 and do not support California’s argument.

21

Shelby involved a challenge to the Voting Rights Act (“VRA”), enacted in 1965.

22 Shelby, 133 S. Ct. at 2619. The Court held that the coverage formula contained in § 4(b) 23 24 of the VRA, identifying jurisdictions covered by § 5’s preclearance requirement, was

25 unconstitutional. Id. at 2620. If a state was a covered jurisdiction, § 5 required that no

26 changes could be made to a state’s voting procedures unless approved by federal

27

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1 authorities. Id. These provisions were originally meant to be temporary as they were to

2 expire in five years but Congress subsequently reauthorized the Act several times. Id. 3 4 While the Court recognized the Supremacy Clause, it also noted the States’ broad

5 autonomy “in structuring their governments and pursuing legislative objectives” and that

6 the framers of the Constitution “intended the States to keep for themselves, as provided in 7 8 the Tenth Amendment, the power to regulate elections.” Id. at 2623 (citations omitted)

9 (noting that while the Federal Government has significant control over federal elections,

10 states have “broad powers to determine the conditions under which the right of suffrage 11 12 may be exercised.”). The Court also noted the “fundamental principle of equal

13 ‘sovereignty’ among the States.” Id. (emphasis in original).

14

The VRA restriction only applied to nine States and some additional counties

15

16 thereby violating the principal of equal sovereignty. Id. at 2624. In order to justify

17 violating the equal sovereignty of states, the Court required that the statute’s requirement

18 be “sufficiently related to the problem that it targets.” Id. at 2622. The Court found that 19 20 the conditions that originally justified the VRA’s passage, entrenched racial

21 discrimination in voting, no longer existed in the covered states and counties as African-

22 American voter turnout exceeded white voter turnout in the majority of the states covered 23 24 by § 5. Id. at 2618-19. When a law treats one state differently from another, the

25 Supreme Court “requires a showing that a statute’s disparate geographic coverage is

26 sufficiently related to the problem that it targets.” Id. at 2622 (quoting Nw. Austin

27

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1 Municipal Util. Dist. Number One v. Holder, 557 U.S. 193, 203-04 (2009)). The court

2 held that the coverage formula under § 4 was unconstitutional. Id. at 2631.

3

4

Relying on the principles in Shelby, California argues that section 102 violates the

5 Tenth Amendment because it disparately treats California in imposing waiver of its laws

6 to build additional barriers even though the number of “high illegal entry” of aliens has 7 8 dramatically decreased in recent years.

9

Here, unlike the State’s power to regulate elections in Shelby, the authority vested

10 in the Secretary of DHS concerning immigration and border security is broad. See 11 12 Arizona, 567 U.S. at 395; Kleindienst, 408 U.S. at 765. Moreover, a court in this district

13 concluded that “Section 102 clearly manifests congressional intent to preempt state and

14 local laws which would interfere with Congress’s objective to expeditiously construct the 15 16 border fence.” Cnty. of El Paso, 2005 WL 4372693, at *10 (concluding that under

17 section 102(c), state and local laws would be preempted if the state’s enforcement of its

18 statute interfered with federal objective and waiver statute did not violate the Tenth 19 20 Amendment). California has not demonstrated that it has autonomy or authority in

21 regulating its border with Mexico. Moreover, as to the principal of equal sovereignty,

22 section 102 applies with equal force to any state that borders the United States. 23 24 Inevitably all states are not border states, and section 102 does not single out a particular

25 state in imposing requirements on state powers in a discriminatory manner as the VRA in

26 Shelby. 27
28

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1

Next, California argues that section 102 interferes with its police powers relying on

2 City of Boerne. In City of Boerne, a local zoning authority denied a church a building 3 4 permit, and the Supreme Court held that the Religious Freedom Reformation Act

5 (“RFRA”) was unconstitutional as applied to the states because it was beyond Congress’s

6 remedial power to regulate states under Section 5 of the Fourteenth Amendment to the 7 8 Constitution. City of Boerne, 521 U.S. at 536. Section 5 of the Fourteenth Amendment

9 grants Congress broad authority to remedy and deter constitutional violations. Id. at 518.

10 The Court noted that RFRA was not remedial or preventive legislation but instead an 11 12 attempt at “substantive change in constitutional protections.” Id. at 532. The scope and

13 reach of RFRA was overly broad, as it applied to every agency and official in federal,

14 state and local governments and to any federal and state law, and was temporally broad 15 16 with no termination date. Id.

17

The Court does not find City of Boerne supportive of California’s argument. First,

18 City of Boerne did not involve a claim of a Tenth Amendment violation but addressed 19 20 Congress’ authority under Section 5 of the Fourteenth Amendment, a distinct provision

21 of the Constitution. California claims its police powers, to legislate for the public good,

22 is being curtailed by section 102 and that section 102(c) is grossly overbroad as it allows 23 24 for the waiver of “all federal and state law.” While the language of section 102(c) is

25 broad since it applies to a waiver of “all legal requirements” the waiver is circumscribed

26 to those the Secretary determines are “necessary to ensure expeditious construction of the

27

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1 barriers and roads.” 8 U.S.C. § 1103(c). The two waivers at issue are limited to the

2 “construction of roads and physical barriers . . . in the Project Area.” (Dkt. No. 30-6, 3 4 Cayaban Decl., Ex. 11, 82 Fed. Reg. at 35985; id., Ex. 12, 82 Fed. Reg. at 42830.)

5 Contrary to Plaintiff’s position, section 102’s granting the Secretary authority to waive

6 state laws is not indefinite in duration and unlimited. Moreover, as noted by a district 7 8 court, section 102 does not abrogate the validity of state laws but “merely suspend[s] the

9 effects of the state and local laws.” Cnty. of El Paso, 2008 WL 4372693, at *8.

10

The Court concludes that California Plaintiff’s Tenth Amendment claim is without

11

12 merit, and GRANTS Defendants’ motion for summary judgment, and DENIES California

13 Plaintiff’s motion for summary judgment on this issue.

14

G. Whether Constitutional Avoidance Compels a Ruling that the August 2

15

16 Waiver is Ultra Vires to section 102

17

In their reply, Coalition Plaintiffs, for the first time, assert that judicial review of

18 sections 102(a) and (b) is necessary to avoid serious constitutional problems. They argue 19 20 that there are serious constitutional concerns because section 102(c) grants an unelected

21 cabinet official with unbridled power to waive any law that has any remote connection to

22 border security projects. Center Plaintiff also raises for the first time in its reply that the 23 24 doctrine of constitutional avoidance compels a holding that the August 2 Waiver is ultra

25 vires to section 102. In their reply, Defendants summarily argue that the canon of

26

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1 constitutional avoidance does not apply since the challenges are not serious enough based

2 on the plain text of section 102.

3

4

“The so-called canon of constitutional avoidance is an interpretive tool, counseling

5 that ambiguous statutory language be construed to avoid serious constitutional doubts.”

6 FCC v. Fox Tel. Stations, Inc., 556 U.S. 502, 516 (2009) (citation omitted). If 7 8 “the statute does not raise constitutional concerns, then there is no basis for employing

9 the canon of constitutional avoidance.” Rodriguez v. Robbins, 715 F.3d 1127, 1140 (9th

10 Cir. 2013) (citation omitted). Moreover, if there is no ambiguity in the statute, 11 12 constitutional avoidance has no application. Warger v. Shauers, 135 S. Ct. 521, 529

13 (2014) (Federal Rule of Evidence 606(b) is not ambiguous).

14

“It is a bedrock principle of statutory interpretation that ‘where an otherwise

15

16 acceptable construction of a statute would raise serious constitutional problems, the Court

17 will construe the statute to avoid such problems unless such construction is plainly

18 contrary to the intent of Congress.’” Hawaii v. Trump, 878 F.3d 662, 690 (9th Cir. 2017) 19 20 (quoting Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council,

21 485 U.S. 568, 575 (1988)). The constitutional avoidance doctrine may be invoked only if

22 the court has “grave doubts” about the statute’s constitutionality. Ileto v. Glock, Inc., 565 23 24 F.3d 1126, 1143 (9th Cir. 2009); Almendarez-Torres v. United States, 523 U.S. 224, 238

25 (1998) (“those who invoke the doctrine must believe that the alternative is a serious

26 likelihood that the statute will be held unconstitutional.”).
27
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1

As discussed above, the Court does not have serious constitutional doubts as to the

2 constitutionality of section 102(c). Moreover, prior challenges to the initial amendment 3 4 of section 102(c) broadening its waiver authority in 2005 have been upheld as

5 constitutional. Accordingly, the Court declines to apply the doctrine of constitutional

6 avoidance. 7
8

CONCLUSION

9

Based on the reasoning above, the Court DENIES Plaintiffs’ motions for summary

10 judgment and GRANTS Defendants’ motions for summary judgment with the exception 11 12 of the Center Plaintiff’s seventh cause of action for FOIA violations.

13

IT IS SO ORDERED.

14 Dated: February 27, 2018 15

16

17

18

19

20

21

22

23

24

25

26

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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

IN RE BORDER INFRASTRUCTURE ENVIRONMENTAL LITIGATION,
CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff-Appellant,
and
DEFENDERS OF WILDLIFE, a nonprofit conservation organization; SIERRA CLUB, a nonprofit public benefit corporation; ANIMAL LEGAL DEFENSE FUND; PEOPLE OF THE STATE OF CALIFORNIA, by and through Xavier Becerra, Attorney General; CALIFORNIA COASTAL COMMISSION,
Plaintiffs,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. CUSTOMS AND BORDER PROTECTIONS; KIRSTJEN NIELSEN, Secretary, in her official capacity; KEVIN K. MCALEENAN,

No. 18-55474
D.C. Nos. 3:17-cv-01215-
GPC-WVG 3:17-cv-01873-
GPC-WVG 3:17-cv-01911-
GPC-WVG

Case: 18-55474, 02/11/2019, ID: 11184856, DktEntry: 35-1, Page 2 of 30

2

IN RE BORDER INFRASTRUCTURE ENVTL. LITIG.

Commissioner, in his official capacity,
Defendants-Appellees.

IN RE BORDER INFRASTRUCTURE ENVIRONMENTAL LITIGATION,
CENTER FOR BIOLOGICAL DIVERSITY; PEOPLE OF THE STATE OF CALIFORNIA, by and through Xavier Becerra, Attorney General; CALIFORNIA COASTAL COMMISSION,
Plaintiffs,
and
DEFENDERS OF WILDLIFE, a nonprofit conservation organization; SIERRA CLUB, a nonprofit public benefit corporation; ANIMAL LEGAL DEFENSE FUND,
Plaintiffs-Appellants,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. CUSTOMS AND BORDER PROTECTIONS; KIRSTJEN NIELSEN, Secretary, in her official capacity; KEVIN K. MCALEENAN,

No. 18-55475
D.C. Nos. 3:17-cv-01215-
GPC-WVG 3:17-cv-01873-
GPC-WVG 3:17-cv-01911-
GPC-WVG

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IN RE BORDER INFRASTRUCTURE ENVTL. LITIG.

3

Commissioner, in his official capacity,
Defendants-Appellees.

IN RE BORDER INFRASTRUCTURE ENVIRONMENTAL LITIGATION,
CENTER FOR BIOLOGICAL DIVERSITY; DEFENDERS OF WILDLIFE, a nonprofit conservation organization; SIERRA CLUB, a nonprofit public benefit corporation; ANIMAL LEGAL DEFENSE FUND,
Plaintiffs,
and
PEOPLE OF THE STATE OF CALIFORNIA, by and through Xavier Becerra, Attorney General; CALIFORNIA COASTAL COMMISSION,
Plaintiffs-Appellants,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. CUSTOMS AND BORDER PROTECTIONS; KIRSTJEN NIELSEN, Secretary, in her official capacity; KEVIN K. MCALEENAN,

No. 18-55476
D.C. Nos. 3:17-cv-01215-
GPC-WVG 3:17-cv-01873-
GPC-WVG 3:17-cv-01911-
GPC-WVG
OPINION

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4

IN RE BORDER INFRASTRUCTURE ENVTL. LITIG.

Commissioner, in his official capacity,
Defendants-Appellees.

Appeal from the United States District Court for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding
Argued and Submitted August 7, 2018 Pasadena, California
Filed February 11, 2019
Before: M. Margaret McKeown, Consuelo M. Callahan, and Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge McKeown; Dissent by Judge Callahan

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IN RE BORDER INFRASTRUCTURE ENVTL. LITIG.

5

SUMMARY*

Environmental Law / Homeland Security
The panel affirmed the district court’s summary judgment entered in favor of the U.S Department of Homeland Security (“DHS”) in cases involving challenges by the State of California and environmental groups to DHS’s authority to expedite construction of border barriers near San Diego and Calexico, California, and the Secretary of DHS’s August and September 2017 waivers of applicable environmental laws.
Pursuant to Executive Order 13,767, the Secretary of DHS invoked section 102(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) to waive federal laws with respect to border barrier construction projects along the border between the United States and Mexico.
The plaintiffs’ “ultra vires claims” alleged that DHS exceeded its statutory authority in working on the border barrier projects and issuing the related waivers in violation of the Administrative Procedure Act (“APA”). The plaintiffs’ “environmental claims” alleged that in planning and building the border barrier projects, DHS violated federal environmental laws.
As a threshold matter, the panel held that they had jurisdiction to consider the “predicate legal question” of
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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whether IIRIRA authorized the contested projects. Because neither IIRIRA nor the APA barred the panel’s review, the panel turned to the merits of the ultra vires and environmental claims.

The panel held that the plain text of section 102(a) of IIRIRA granted DHS authority to construct the border barrier projects, and that grant of authority was not limited by section 102(b) of IIRIRA. The panel concluded that the district court correctly granted DHS summary judgment on the ultra vires claims. The panel further held that the environmental claims were precluded by the Secretary’s waiver of the National Environmental Policy Act, the Coastal Zone Management Act, and the APA. The panel held that it lacked jurisdiction to consider any argument challenging the waivers themselves.

Judge Callahan dissented because she would read section 102 of IIRIRA as limiting review of the district court’s decision to review by certiorari in the Supreme Court; and she would, accordingly, dismiss the appeals.

COUNSEL
Noah Golden-Krasner (argued), Julia Forgie, Jessica B. Strobel, Baine P. Kerr, Janelle M. Smith, and John Applebaum, Deputy Attorneys General; David G. Alderson, Michael P. Cayaban, and Edward H. Ochoa, Supervising Deputy Attorneys General; Robert W. Byrne, Senior Assistant Attorney General; Xavier Becerra, Attorney General; Office of the Attorney General, Los Angeles, California; for Plaintiffs-Appellants People of the State of California and California Coastal Commission.

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IN RE BORDER INFRASTRUCTURE ENVTL. LITIG.

7

Brian Segee and John Peter Rose, Center for Biological Diversity, Los Angeles, California; Anchun Jean Su and Brendan Cummings, Center for Biological Diversity, Oakland, California; for Plaintiff-Appellant Center for Biological Diversity.

Anthony T. Eliseuson, Animal Legal Defense Fund, Chicago, Illinois; Sara K. Hanneken, Animal Legal Defense Fund, Portland, Oregon; for Plaintiff-Appellant Animal Legal Defense Fund.

Jason Rylander, Defenders of Wildlife, Washington, D.C., for Plaintiff-Appellant Defenders of Wildlife.

Gloria D. Smith, Sierra Club, Oakland, California, for Plaintiff-Appellant Sierra Club.

H. Thomas Byron III (argued), Courtney L. Dixon, and Benjamin M. Schultz, Appellate Staff; Adam L. Braverman, United States Attorney; Civil Division, United States Department of Justice, Washington, D.C.; for DefendantsAppellees.

OPINION
McKEOWN, Circuit Judge:
Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), the Secretary of the Department of Homeland Security (“DHS”) has long had the authority “to install additional physical barriers and roads . . . in the vicinity of the United States border . . . .” IIRIRA

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§ 102(a).1 The Secretary also “ha[s] the authority to waive all legal requirements” that, in the “Secretary’s sole discretion,” are “necessary to ensure expeditious construction” of those barriers and roads. Id. § 102(c)(1).

This appeal stems from a challenge by California and multiple environmental groups to the agency’s authority to expedite construction of border barriers near San Diego and Calexico, California, and the Secretary’s August and September 2017 waivers of applicable environmental laws. As a threshold matter, we have jurisdiction to consider the “predicate legal question” of whether IIRIRA authorizes the contested projects. Because the projects are statutorily authorized and DHS has waived the environmental laws California and the environmental groups seek to enforce, we affirm the district court’s grant of summary judgment to DHS.

BACKGROUND
On January 25, 2017, President Donald J. Trump issued Executive Order 13,767, directing federal agencies to “deploy all lawful means to secure the Nation’s southern border.” 82 Fed. Reg. 8793. A focal point of that directive was “the immediate construction of a physical wall,” to be planned, designed, and built “[i]n accordance with existing law, including . . . IIRIRA.” Id. at 8793–94. The “wall” was to be a “secure, contiguous, and impassable physical barrier”

1 Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546 (codified as amended at 8 U.S.C. § 1103 note). All section references are to IIRIRA unless otherwise indicated. IIRIRA originally granted the Attorney General this authority. Congress transferred this authority to the DHS Secretary after creating DHS in 2002.

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9

along the “contiguous land border between the United States and Mexico, including all points of entry.” Id. at 8794.
By March 2017, DHS had begun planning projects carrying out the Executive Order, including two relevant to this appeal:
• The construction and evaluation of wall “prototypes” in San Diego County, California (the “Prototype Project”); and
• The replacement of fourteen miles of primary fencing and fourteen miles of secondary fencing in San Diego County (the “San Diego Project”).
On August 2, 2017, the DHS Secretary2 published in the Federal Register a notice of determination concerning the Prototype Project and the San Diego Project (the “San Diego Waiver”). See 82 Fed. Reg. 35,984 (Aug. 2, 2017). The Secretary invoked section 102(c)’s grant of “authority to waive all legal requirements that I, in my sole discretion, determine necessary to ensure the expeditious construction of barriers and roads authorized by section 102 of IIRIRA.” Id. at 35,984. The San Diego Waiver asserted that the U.S. Border Patrol’s “San Diego Sector remains an area of high illegal entry for which there is an immediate need to construct additional border barriers and roads.” Id. The designated “Project Area”—extending fifteen miles inland from the Pacific Ocean—encompassed the Prototype and San Diego Projects. Id. Having determined the action was

2 During this period, John Kelly, Elaine Duke, and Kirstjen Nielsen served as DHS Secretary. Because the identity of the Secretary who initiated any given administrative action is not relevant to the legal issues in this appeal, we simply refer to the “Secretary” or “DHS Secretary.”

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“necessary,” the Secretary invoked section 102(c) to “waive in their entirety” thirty-seven federal laws “with respect to the construction of roads and physical barriers” in the Project Area. Id. at 35,985.
On September 12, 2017, the Secretary again invoked section 102’s waiver authority in another notice of determination in the Federal Register (the “Calexico Waiver”). See 82 Fed. Reg. 42,829 (Sept. 12, 2017). The Calexico Waiver pertained to the replacement of primary fencing along a three-mile segment of the border near Calexico, California (the “Calexico Project”). Id. at 42,830. The Secretary asserted that, like the San Diego Sector, the “El Centro Sector [which includes Calexico] remains an area of high illegal entry for which there is an immediate need to construct border barriers and roads,” and designated a Project Area for the replacement fencing. Id. Again deeming the action “necessary,” the Secretary waived twenty-seven federal laws “with respect to the construction of roads and physical barriers” in the Project Area. Id.
With one exception, construction on the Prototype, San Diego, and Calexico Projects (collectively “the border barrier projects”) has already begun and is either complete or ongoing. Construction on the San Diego secondary-fence replacement project had not begun when DHS filed its Answering Brief. DHS maintains that project is still in the preliminary planning stage, and that the Secretary has not yet determined whether a waiver is necessary.

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Three sets of plaintiffs3 filed lawsuits against the federal government4 to enjoin the border barrier projects and to declare the San Diego and Calexico Waivers unlawful. The district court consolidated the suits, finding that they shared common legal and factual issues. California and the environmental groups asserted three types of claims. The “ultra vires claims” alleged that DHS exceeded its statutory authority in working on the border barrier projects and issuing the related waivers, thus violating the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq. The “environmental claims” alleged that in planning and building the border barrier projects, DHS violated environmental laws.5 Finally, the “constitutional claims” alleged that the waivers violated the U.S. Constitution.
On cross-motions, the district court granted summary judgment to DHS. The district court concluded that IIRIRA’s jurisdictional bar, see § 102(c)(2)(A), prevented it
3 The Plaintiffs-Appellants (collectively “California and the environmental groups”) are: (1) the State of California and the California Coastal Commission (collectively “California”); (2) the Center for Biological Diversity (“CBD”); and (3) the Defenders of Wildlife, the Sierra Club, and the Animal Legal Defense Fund (collectively the “Coalition”).
4 The Defendants-Appellees (collectively “DHS” or “the Government”) are: the United States of America; the U.S. Department of Homeland Security; U.S. Customs and Border Protection; Secretary Kirstjen Nielsen, in her official capacity; and Commissioner Kevin K. McAleenan, in his official capacity.
5 California and the environmental groups alleged that DHS violated the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (“NEPA”), the Coastal Zone Management Act, 16 U.S.C. § 1451 et seq. (“CZMA”), and the APA. DHS acknowledged that it did not comply with NEPA or CZMA requirements.

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from hearing the non-constitutional claims. The district court went on to reject the constitutional claims.
California, CBD, and the Coalition each appealed the district court’s judgments as to the ultra vires and environmental claims, but not their constitutional claims. We consolidated the three appeals.
ANALYSIS
I. STANDARD OF REVIEW
We review the district court’s grant of summary judgment de novo. Wolfe v. BNSF Ry. Co., 749 F.3d 859, 863 (9th Cir. 2014). We must “determine, viewing the evidence in the light most favorable to the non-moving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law.” Citicorp Real Estate, Inc. v. Smith, 155 F.3d 1097, 1103 (9th Cir. 1998). In doing so, we do “not weigh the evidence or determine the truth of the matter but only determine whether there is a genuine issue for trial.” Id.
II. JURISDICTION
The threshold question is whether we have jurisdiction to hear this appeal. The answer depends on the scope of IIRIRA’s jurisdictional bar and direct review provisions.
We begin with the language of the statute, which provides:
The district courts of the United States shall have exclusive jurisdiction to hear all causes or claims arising from any action undertaken, or any decision made, by the Secretary of

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Homeland Security pursuant to paragraph (1). A cause of action or claim may only be brought alleging a violation of the Constitution of the United States. The court shall not have jurisdiction to hear any claim not specified in this subparagraph.
§ 102(c)(2)(A) (emphasis added). Paragraph (1), IIRIRA’s waiver provision, states:
Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive all legal requirements such Secretary, in such Secretary’s sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under this section. Any such decision by the Secretary shall be effective upon being published in the Federal Register.
§ 102(c)(1).
Section 102(c)(2)(C) provides for direct review of the district court’s decision by the Supreme Court: “An interlocutory or final judgment, decree, or order of the district court may be reviewed only upon petition for a writ of certiorari to the Supreme Court of the United States.”
The statutory directive is clear:
• IIRIRA vests district courts with exclusive jurisdiction to hear claims “arising from” actions undertaken or decisions made “pursuant to” the waiver provision.

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• This exclusive jurisdiction over claims “arising from” the waiver provision is limited to constitutional violations; there is no judicial review of non-constitutional claims “arising from” the waiver provision.
• The direct review provision applies only to those claims subject to the district courts’ exclusive jurisdiction.
The jurisdictional bar and direct review provisions cover only claims “arising from” paragraph (1)’s waiver provision. Interpreting their scope requires determining when a claim “aris[es] from” the waiver provision.
A claim does not “aris[e] from” the waiver provision simply because it is related to or concerned with the Secretary’s waiver determinations. The language used in section 102(c)(2)(A) requires more. The Ninth Circuit has noted that a related phrase, “arising out of,” is “ordinarily understood to mean ‘originating from,’ ‘having its origin in,’ ‘growing out of’ or ‘flowing from’ or in short, ‘incident to, or having connection with.’” See In re Tristar Esperanza Props., LLC, 782 F.3d 492, 497 (9th Cir. 2015) (quoting Underwriters at Lloyd’s of London v. Cordova Airlines, Inc., 283 F.2d 659, 664 (9th Cir. 1960)). Accordingly, a claim “aris[es] from” an “action undertaken” or “decision made[ ] by the Secretary . . . pursuant to” the waiver provision only when the claim originates or stems from a section 102(c)(1) waiver determination.6 Whether the jurisdictional bar
6 In isolation, the reference in Tristar to “having connection with” might support a broader reading of this nexus requirement. 782 F.3d at 497. However, context is key: the phrase follows four illustrative definitions, each describing an originating relationship, and then the

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applies to California and the environmental groups’ claims requires us to assess whether each claim “aris[es] from” the Secretary’s waiver determinations.
One set of ultra vires claims alleges that the border barrier projects are not authorized by the grant of barrier- and road-building authority in sections 102(a) and 102(b). They challenge the scope of the Secretary’s authority to build roads and walls under sections 102(a) and 102(b), not the scope of waiver authority under section 102(c). These claims thus “aris[e] from” sections 102(a) and 102(b), not section 102(c). Their origin is the initial decision to build the border barrier projects, not the later decision to issue a waiver related to those projects. In the absence of any relationship between these claims and the waiver provision, there is no plausible interpretation of “aris[es] from” that brings these claims under the jurisdictional bar. On the other hand, a second set of ultra vires claims alleges the waivers themselves were not authorized by the Secretary’s authority under section 102(c)(1). See, e.g., Second Am. Compl. at 34–38, In re: Border Infrastructure Envtl. Litig., No. 3:17cv-01215-GPC-WVG (S.D. Cal. Sept. 6, 2017). These claims do “arise from” the Secretary’s waiver determination, so the district court correctly found that the jurisdictional bar applies.7
qualifier, “in short,” which indicates that any subsequent terms are a mere rephrasing of the preceding substantive definitions.
7 The district court was also correct in reasoning that the exception laid out in Leedom v. Kyne, 358 U.S. 184 (1958), does not create jurisdiction over these claims. Leedom’s extremely narrow exception would apply only if the waivers violated “‘clear and mandatory’ statutory language.” Pac. Mar. Ass’n v. NLRB, 827 F.3d 1203, 1208 (9th Cir. 2016) (quoting Leedom, 358 U.S. at 188). Contrary to California

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The environmental claims allege the planning and construction of the border barrier projects violated various environmental laws. To the extent these claims challenge either the merits of the waivers themselves, or the Secretary’s authority to issue the waivers under section 102(c), they are subject to the jurisdictional bar. But, the analysis is different for the environmental claims that “aris[e] from” alleged violations of NEPA, CZMA, and the APA during the planning and construction of the border barrier projects. At least some of the environmental claims clearly fall into this latter category. For example, CBD raised NEPA and APA claims before the Secretary published the San Diego or Calexico Waivers, meaning the waivers could not possibly have been the source of these claims. See First Am. Compl. at 3–4, 23–32, In re: Border Infrastructure Envtl. Litig., No. 3:17-cv-01215-GPC-WVG (S.D. Cal. July 7, 2017). To be sure, a valid waiver of the relevant environmental laws under section 102(c) is an affirmative defense to all the environmental claims.8 But the fact that the waivers may be dispositive of the environmental claims does not make a waiver the origin of those claims.
and the environmental groups’ reading, it is far from “clear” that section 102(c)(1) does not authorize the waivers. By authorizing any waiver “necessary to ensure expeditious construction of the barriers and roads under this section,” section 102(c)(1) authorizes waivers to facilitate construction authorized by section 102(a), including the border barrier projects.
8 California and the environmental groups point out that the environmental review requirements for NEPA and CZMA became effective for the border barrier projects before the agency issued the waivers. But the waiver provision says nothing about when the agency must invoke its authority, and we strain to see what relief could be granted once DHS issued the waivers.

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The black letter law of federal question jurisdiction illustrates why any other outcome would be at odds with well-accepted principles. Under 28 U.S.C. § 1331, district courts have jurisdiction over all cases “arising under the Constitution, laws, or treaties of the United States.” A case does not “aris[e] under the Constitution, laws, or treaties of the United States” just because a defendant invokes a federal defense. See Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152 (1908). For the same reason, the environmental claims do not “aris[e] from” the Secretary’s waiver determinations merely because those waivers could provide the Secretary with a viable defense.
Finally, the constitutional claims, which allege that the waiver determinations themselves violate the U.S. Constitution, do “aris[e] from” the waiver determinations. See, e.g., Compl. at 23, Defs. of Wildlife v. DHS, No. 3:17cv-01873-GPC-WVG (S.D. Cal. Sept. 14, 2017) (arguing the San Diego and Calexico Waivers violate the Presentment Clause). Because these claims grow out of the waiver determinations, IIRIRA’s jurisdictional bar applies. The district court had exclusive jurisdiction to hear those claims, and any appeal must be direct to the Supreme Court pursuant to section 102(c)(2)(C). It is no surprise that California and the environmental groups did not appeal the constitutional claims to the Ninth Circuit.9
The jurisdictional bar and direct review provisions have no bearing on the ultra vires and environmental claims that
9 The Animal Legal Defense Fund, CBD, and Defenders of Wildlife filed a petition for certiorari raising the constitutional claims, which the Supreme Court denied. Animal Legal Def. Fund v. DHS, 139 S. Ct. 594 (2018).

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do not “aris[e] from” the waiver determination.10 The district court had jurisdiction to review these federal claims under 28 U.S.C. § 1331. We, in turn, have jurisdiction to consider this appeal from the “final decision[ ] of the district court[ ]” under 28 U.S.C. § 1291.
Nor does the APA bar our review. California and the environmental groups seek relief for their ultra vires and environmental claims pursuant to the APA’s cause of action. See 5 U.S.C. § 702. DHS argues those claims are unreviewable because waiver determinations are made in the Secretary’s “sole discretion,” IIRIRA § 102(c)(1), which means they are “committed to agency discretion by law” and therefore exempt from the APA’s cause of action. See 5 U.S.C. § 701(a)(2). However, this argument sidesteps the essence of the claims—that the border barrier projects are not authorized under section 102(a) or 102(b). The predicate legal question of statutory authority is not committed to agency discretion, so California and the environmental groups’ claims are reviewable.
Because neither IIRIRA nor the APA bar our review, we turn to the merits of the ultra vires and environmental claims.
III. DHS HAS AUTHORITY TO CONSTRUCT THE BORDER BARRIER PROJECTS
As noted, the ultra vires and environmental claims rely on the APA, which provides the analytical framework for considering these claims. Under the APA, the operative
10 This conclusion follows from the plain language of IIRIRA. The strong presumption of judicial review of agency action further supports this outcome. See Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2140 (2016).

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question is whether the agency action is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(A), (C). The ultra vires claims relevant here allege DHS exceeded its statutory authority under sections 102(a) and 102(b). The environmental claims allege the border barrier projects are “not in accordance with law” because their planning and construction violated NEPA and CZMA.
Section 102(a) vests the Secretary with authority to “take such actions as may be necessary to install additional physical barriers and roads (including the removal of obstacles to detection of illegal entrants) in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States.”
A. The border barrier projects are “additional physical barriers.”
The Secretary authorized the San Diego and Calexico Projects because the existing barriers in those areas were built in the 1990s using a fence design “that is no longer optimal for Border Patrol operations.” 82 Fed. Reg. 35,985, 42,830. According to DHS, the new construction erects stronger and taller barriers. The Calexico Project will replace “[t]he existing fourteen foot, landing mat-style fencing . . . with an eighteen to twenty-five foot barrier that employs a more operationally effective design.” Id. at 42,830. Similarly, the San Diego Project “will replace existing primary fencing” with a “new primary barrier” that “use[s] an operationally effective design.” Id. at 35,984–85. These are “additional physical barriers.”

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California and the environmental groups argue that the San Diego and Calexico Projects—which replace existing border fencing—are not authorized under section 102(a) because that section only applies to “additional physical barriers.”11 They urge that “Congress understood the phrase ‘install additional barriers’ to mean the construction of barriers that would add to the total miles of already existing fences by installing new barriers where none existed at the time.”
The plain language of section 102(a) suggests no such limitation. In simple terms, “additional” means “supplemental.” Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1472–73 (9th Cir. 1993) (quoting Town of Burlington v. Dep’t of Educ., 736 F.2d 773, 790 (1st Cir. 1984)). A “barrier” is “a material object or set of objects that separates, keeps apart, demarcates, or serves as a unit or barricade.” See Barrier, Webster’s New Int’l Dictionary of the English Language (3d ed. 1993). Combining the plain meaning of “additional” and “barrier” yields a “supplemental material object or set of objects that separates, keeps apart, demarcates, or serves as a unit or barricade.” A replacement fence fits comfortably within that definition.
That the statutory grant of authority extends beyond “install[ing] additional physical barriers” to “tak[ing] such actions as may be necessary to install additional physical barriers and roads” further supports this conclusion. IIRIRA § 102(a) (emphasis added). “[S]uch actions” include “remov[ing] . . . obstacles to detection of illegal entrants.” Id. It follows that authorization to “remov[e] . . . obstacles” and take other “actions . . . necessary to install . . . barriers
11 They do not dispute that the Prototype Project is an “additional physical barrier.”

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and roads” extends beyond the erection of entirely new barriers and encompasses the maintenance, enhancement, and replacement of existing barriers.
Common sense also supports our analysis. To suggest that Congress would authorize DHS to build new border barriers but (impliedly) prohibit the maintenance, repair, and replacement of existing ones makes no practical sense. See Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982) (“[I]nterpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available.”).
B. The projects are “in areas of high illegal entry into the United States.”
The San Diego and Calexico Waivers cited data demonstrating that the border barrier projects are “in areas of high illegal entry.” IIRIRA § 102(a); 82 Fed. Reg. 35,984, 42,830. In the U.S. Border Patrol’s San Diego Sector, the location of the Prototype and San Diego Projects, the Border Patrol apprehended over 31,000 undocumented immigrants and seized approximately 9,167 pounds of marijuana and 1,317 pounds of cocaine in fiscal year 2016. 82 Fed. Reg. 35,984. In the El Centro Sector, the location of the Calexico Project, the U.S. Border Patrol apprehended over 19,000 undocumented immigrants and seized approximately 2,900 pounds of marijuana and 126 pounds of cocaine over the same period. Id. at 42,830. This is ample evidence of “high illegal entry” in these areas.
California and the environmental groups nonetheless contend the San Diego and Calexico Projects are not authorized by section 102(a) because they are not “in areas of high illegal entry into the United States.” They do not dispute the evidence of “illegal entry” provided by DHS.

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Nor do they dispute that the number of undocumented immigrants apprehended and the amount of illegal narcotics seized are objectively “high.” Instead, they assert that the San Diego and El Centro statistics are not comparably “high” when measured against other sectors on the southwest border or the rates of illegal entry in these sectors in the past.
However, IIRIRA does not dictate that “high illegal entry” is a comparative determination. Absent qualification, “high illegal entry” means what it says. The fact that there are areas with “higher illegal entry” says nothing about whether the San Diego and El Centro sectors are “areas of high illegal entry.” Even assuming that “areas of high illegal entry” are identified relative to other border sectors, San Diego and El Centro are in the top 35% of border sectors with respect to the number of undocumented immigrants apprehended. Finally, to the extent the challenge targets the Secretary’s discretion in selecting where to exercise her authority under section 102(a), such an inquiry is foreclosed by IIRIRA’s bar on probing the merits of a waiver determination, § 102(c)(2), and the APA’s bar on reviewing discretionary agency action, 5 U.S.C. § 701(a)(2).
C. Section 102(b) does not impose limits on Section 102(a)’s broad grant of authority.
Having determined that section 102(a)’s grant of authority encompasses the border barrier projects, we next consider whether section 102(b) imposes limits on that broad grant of authority. Section 102(b) provides in relevant part:
(1) Additional fencing along southwest border.—

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(A) Reinforced fencing.—In carrying out subsection (a), the Secretary of Homeland Security shall construct reinforced fencing along not less than 700 miles of the southwest border where fencing would be most practical and effective and provide for the installation of additional physical barriers, roads, lighting, cameras, and sensors to gain operational control of the southwest border.
(B) Priority areas.—In carrying out this section, the Secretary of Homeland Security shall—
(i) identify the 370 miles, or other mileage determined by the Secretary, whose authority to determine other mileage shall expire on December 31, 2008, along the southwest border where fencing would be most practical and effective in deterring smugglers and aliens attempting to gain illegal entry into the United States; and
(ii) not later than December 31, 2008, complete construction of reinforced fencing along the miles identified under clause (i).
The question is whether the fencing requirements and deadlines in section 102(b) establish limits applicable to section 102(a). They do not. Section 102(b)’s provisions for

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priority projects do not swallow section 102(a)’s independent authorization to build “additional physical barriers.” Congress’s alternative use of the phrases “[i]n carrying out subsection (a)” and “this section” indicates that section 102(b) applies to some but not all of the construction authorized by section 102(a). In other words, section 102(a) is most plausibly read as a broad grant of authority to build border infrastructure, while section 102(b) merely denotes certain priority projects Congress intended DHS to complete first. Limits on the priority projects apply to those projects alone, not the wider universe of construction authorized by section 102(a).
The “general/specific canon” of statutory construction does not require a different interpretation. That canon provides that when two conflicting provisions cannot be reconciled, the more specific provision should be treated as an exception to the general rule. See Antonin Scalia & Bryan A. Gardner, Reading Law 183 (2012). Herein lies the rub. Sections 102(a) and 102(b) do not conflict. See Marx v. Gen. Revenue Corp., 568 U.S. 371, 386–87 (2013) (explaining that, because the case did not fall within the specific provision, it was governed by the general provision and the “general/specific canon” was inapplicable).
Finally, the narrow interpretation offered by California and the environmental groups renders section 102(a) superfluous. If section 102(b) defines the entire scope of DHS’s authority to build border infrastructure projects under section 102, section 102(a) would lack any independent effect. “[W]e are hesitant to adopt an interpretation of a congressional enactment which renders superfluous another portion of that same law.” Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825, 837 (1988).

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In short, the plain text of section 102(a) grants DHS authority to construct the Prototype, San Diego, and Calexico Projects, and that grant of authority is not limited by section 102(b). The district court correctly granted DHS summary judgment on the ultra vires claims.
Having determined that the border barrier projects were authorized under section 102(a), we have little trouble concluding that the environmental claims were also properly dismissed. The Secretary has waived the legal requirements that California and the environmental groups allege DHS violated. See 82 Fed. Reg. 35,985 (waiving application of NEPA, CZMA, and the APA to the San Diego and Prototype Projects); id. at 42,830 (waiving application of NEPA and the APA to the Calexico Project). And of course, we lack jurisdiction to consider any argument challenging the waivers themselves.
Finally, California and the environmental groups argue that because their environmental claims challenge DHS’s plans to replace fourteen miles of secondary fencing in San Diego, and DHS concedes that the San Diego Waiver did not extend to those plans, the San Diego Waiver does not provide a defense to the environmental claims as applied to the secondary fencing. We need not reach this challenge because, as of the time of this appeal, DHS’s plans to replace the secondary fencing, including whether to comply with NEPA and CZMA, are not yet “final” agency actions for purposes of the APA. See 5 U.S.C. § 704 (“Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.” (emphasis added)); Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (explaining that final agency action both represents the consummation of the agency’s decision-making process and has legal effect).

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CONCLUSION
The plain language of section 102 dictates the outcome of this appeal. We have jurisdiction to consider California and the environmental groups’ ultra vires and environmental claims to the extent those claims do not “aris[e] from” the Secretary’s waiver determinations under section 102(c). The Prototype, San Diego, and Calexico Projects are authorized under section 102(a)’s broad grant of authority, which is not limited by section 102(b). The environmental claims are precluded by the Secretary’s waiver of NEPA, CZMA, and the APA.
AFFIRMED.
CALLAHAN, Circuit Judge, dissenting:
If we could reach the merits of these appeals, I would concur in my colleagues’ opinion. But I read Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) as limiting review of the district court’s decision to review by certiorari in the Supreme Court. Accordingly, I would dismiss these appeals.
As noted by my colleagues, we begin with the language of the statute:
(c) Waiver.—
(1) In general.—Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive all legal requirements such Secretary, in such Secretary’s sole discretion, determines

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necessary to ensure expeditious construction of the barriers and roads under this section. Any such decision by the Secretary shall be effective upon being published in the Federal Register.
(2) Federal court review.—
(A) In general.—The district courts of the United States shall have exclusive jurisdiction to hear all causes or claims arising from any action undertaken, or any decision made, by the Secretary of Homeland Security pursuant to paragraph (1). A cause of action or claim may only be brought alleging a violation of the Constitution of the United States. The court shall not have jurisdiction to hear any claim not specified in this subparagraph.
(B) Time for filing of complaint. . . .
(C) Ability to seek appellate review.—An interlocutory or final judgment, decree, or order of the district court may be reviewed only upon petition for a writ of certiorari to the Supreme Court of the United States.
IIRIRA § 102(c).
Section 102(c)(2)(A) first provides that district courts “shall have exclusive jurisdiction to hear all causes or claims arising from any action undertaken , or any decision made, by the Secretary of Homeland Security pursuant to paragraph (1),” and then states “[a] cause of action or claim

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may only be brought alleging a violation of the Constitution of the United States.” My colleagues do not think that the second clause modifies the district court’s jurisdiction. Rather, the majority holds that the district court has jurisdiction to consider not just plaintiffs’ constitutional claims, but also their ultra vires claims.
I have questions as to the majority’s interpretation of the statute, but recognize that the presumption that Congress does not intend to deny all judicial review arguably provides a basis for the district court considering the plaintiffs’ ultra vires claims. See Leedom v. Kyne, 358 U.S. 184, 190 (1958) (noting that courts “cannot lightly infer that Congress does not intend judicial protection of rights it confers against agency action taken in excess of delegated powers.”).
But even accepting that the district court may consider some of plaintiffs’ ultra vires claims, we do not have jurisdiction to review its decision. Section 102(c)(2)(C)’s direction is clear and unequivocal: “An interlocutory or final judgment, decree, or order of the district court may be reviewed only upon petition for a writ of certiorari to the Supreme Court of the United States.” It covers all conceivable decisions by a district court: orders, decrees, and interlocutory and final judgments. It states that review is “only upon petition for a writ of certiorari.” IIRIRA § 102(c)(2)(C). I read this subsection as requiring that for all actions filed in a district court that arise “from any action undertaken, or any decision made, by the Secretary of Homeland Security pursuant to paragraph (1),” appellate review is limited to the Supreme Court. IIRIRA § 102(c)(1). Moreover, as Congress has provided for appellate review, there is no reason not to abide by the statute’s plain intent. See Flores-Miramontes v. I.N.S., 212 F.3d 1133, 1136 (9th Cir. 2000) (noting that if plaintiff “can raise his claims

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elsewhere . . . we need not read an exception into the jurisdiction-stripping provision at issue.”).
The majority circumvents the statute’s restriction on appellate jurisdiction by arguing that the ultra vires claims do not “arise out of” the Secretary’s waiver of legal requirements under § 102(c)(1). This ignores the obvious thrust of the plaintiffs’ complaints, which challenge the Secretary’s authority to “waive all legal requirements” on both constitutional and statutory grounds. Indeed, their claims under the National Environmental Policy Act, 42 U.S.C. § 4321 et. seq., the Administrative Procedure Act, 5 U.S.C. § 551 et. seq., and the Coastal Zone Management Act, 16 U.S.C. § 1451 et. seq., primarily assert that the Secretary cannot waive the procedural requirements of those statutes.
It is true that plaintiffs’ assertions that the Secretary lacks any authority to construct border walls are arguably separate from plaintiffs’ arguments concerning the Secretary’s ability to waive legal requirements. But these are weak secondary arguments that the district court and the majority correctly reject. These are arguments that would be raised at different times, possibly in different fora, but for the Secretary’s exercise of authority under § 102(c)(1). Moreover, the district court’s rejection of collateral or secondary arguments in litigation that primarily challenge the Secretary’s exercise of authority under § 102(c)(1) remains subject to the appellate restriction in § 102(c)(2)(C). One of the purposes of the restriction on appellate jurisdiction is to expedite appellate review and this purpose is compromised if the losing parties are allowed to seek review of some issues in the court of appeal and others in the Supreme Court.

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because § 102(c)(2)(C) restricts appellate review of the district court’s decisions in these cases to the Supreme Court.

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Mandate (Fed. R. App. P. 41; 9th Cir. R. 41-1 & -2) • The mandate will issue 7 days after the expiration of the time for filing a petition for rehearing or 7 days from the denial of a petition for rehearing, unless the Court directs otherwise. To file a motion to stay the mandate, file it electronically via the appellate ECF system or, if you are a pro se litigant or an attorney with an exemption from using appellate ECF, file one original motion on paper.

Petition for Panel Rehearing (Fed. R. App. P. 40; 9th Cir. R. 40-1) Petition for Rehearing En Banc (Fed. R. App. P. 35; 9th Cir. R. 35-1 to -3)

(1) A. Purpose (Panel Rehearing): • A party should seek panel rehearing only if one or more of the following grounds exist: ► A material point of fact or law was overlooked in the decision; ► A change in the law occurred after the case was submitted which appears to have been overlooked by the panel; or ► An apparent conflict with another decision of the Court was not addressed in the opinion. • Do not file a petition for panel rehearing merely to reargue the case.

B. Purpose (Rehearing En Banc) • A party should seek en banc rehearing only if one or more of the following
grounds exist:

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► Consideration by the full Court is necessary to secure or maintain uniformity of the Court’s decisions; or
► The proceeding involves a question of exceptional importance; or ► The opinion directly conflicts with an existing opinion by another
court of appeals or the Supreme Court and substantially affects a rule of national application in which there is an overriding need for national uniformity.
(2) Deadlines for Filing: • A petition for rehearing may be filed within 14 days after entry of judgment. Fed. R. App. P. 40(a)(1). • If the United States or an agency or officer thereof is a party in a civil case, the time for filing a petition for rehearing is 45 days after entry of judgment. Fed. R. App. P. 40(a)(1). • If the mandate has issued, the petition for rehearing should be accompanied by a motion to recall the mandate. • See Advisory Note to 9th Cir. R. 40-1 (petitions must be received on the due date). • An order to publish a previously unpublished memorandum disposition extends the time to file a petition for rehearing to 14 days after the date of the order of publication or, in all civil cases in which the United States or an agency or officer thereof is a party, 45 days after the date of the order of publication. 9th Cir. R. 40-2.
(3) Statement of Counsel • A petition should contain an introduction stating that, in counsel’s judgment, one or more of the situations described in the “purpose” section above exist. The points to be raised must be stated clearly.
(4) Form & Number of Copies (9th Cir. R. 40-1; Fed. R. App. P. 32(c)(2)) • The petition shall not exceed 15 pages unless it complies with the alternative length limitations of 4,200 words or 390 lines of text. • The petition must be accompanied by a copy of the panel’s decision being challenged. • An answer, when ordered by the Court, shall comply with the same length limitations as the petition. • If a pro se litigant elects to file a form brief pursuant to Circuit Rule 28-1, a petition for panel rehearing or for rehearing en banc need not comply with Fed. R. App. P. 32.

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• The petition or answer must be accompanied by a Certificate of Compliance found at Form 11, available on our website at www.ca9.uscourts.gov under Forms.
• You may file a petition electronically via the appellate ECF system. No paper copies are required unless the Court orders otherwise. If you are a pro se litigant or an attorney exempted from using the appellate ECF system, file one original petition on paper. No additional paper copies are required unless the Court orders otherwise.
Bill of Costs (Fed. R. App. P. 39, 9th Cir. R. 39-1) • The Bill of Costs must be filed within 14 days after entry of judgment. • See Form 10 for additional information, available on our website at www.ca9.uscourts.gov under Forms.
Attorneys Fees • Ninth Circuit Rule 39-1 describes the content and due dates for attorneys fees applications. • All relevant forms are available on our website at www.ca9.uscourts.gov under Forms or by telephoning (415) 355-7806.
Petition for a Writ of Certiorari • Please refer to the Rules of the United States Supreme Court at www.supremecourt.gov
Counsel Listing in Published Opinions • Please check counsel listing on the attached decision. • If there are any errors in a published opinion, please send a letter in writing within 10 days to: ► Thomson Reuters; 610 Opperman Drive; PO Box 64526; Eagan, MN 55123 (Attn: Jean Green, Senior Publications Coordinator); ► and electronically file a copy of the letter via the appellate ECF system by using “File Correspondence to Court,” or if you are an attorney exempted from using the appellate ECF system, mail the Court one copy of the letter.

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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Form 10. Bill of Costs
Instructions for this form: http://www.ca9.uscourts.gov/forms/form10instructions.pdf
9th Cir. Case Number(s) Case Name The Clerk is requested to award costs to (party name(s)):

I swear under penalty of perjury that the copies for which costs are requested were actually and necessarily produced, and that the requested costs were actually expended.

Signature

Date

(use “s/[typed name]” to sign electronically-filed documents)

COST TAXABLE DOCUMENTS / FEE PAID

REQUESTED (each column must be completed)

No. of Copies

Pages per Copy

Cost per Page

TOTAL COST

Excerpts of Record*

$

$

Principal Brief(s) (Opening Brief; Answering
Brief; 1st, 2nd , and/or 3rd Brief on Cross-Appeal; Intervenor Brief)

$

$

Reply Brief / Cross-Appeal Reply Brief

$

$

Supplemental Brief(s)

$

$

Petition for Review Docket Fee / Petition for Writ of Mandamus Docket Fee $

TOTAL: $

*Example: Calculate 4 copies of 3 volumes of excerpts of record that total 500 pages [Vol. 1 (10 pgs.) + Vol. 2 (250 pgs.) + Vol. 3 (240 pgs.)] as: No. of Copies: 4; Pages per Copy: 500; Cost per Page: $.10 (or actual cost IF less than $.10); TOTAL: 4 x 500 x $.10 = $200.
Feedback or questions about this form? Email us at forms@ca9.uscourts.gov

Form 10

Rev. 12/01/2018