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U.S. District Court Southern District of California (San Diego) CIVIL DOCKET FOR CASE #: 3:17-cv-01911-GPC-WVG

People of the State of California, The et al v. United States of America et al Assigned to: Judge Gonzalo P. Curiel Referred to: Magistrate Judge William V. Gallo Lead case: 3:17-cv-01215-GPC-WVG Member case:
3:17-cv-01873-GPC-WVG

Date Filed: 09/20/2017 Date Terminated: 03/26/2018 Jury Demand: None Nature of Suit: 893 Environmental Matters Jurisdiction: U.S. Government Defendant

Related Case: 3:17-cv-01215-GPC-WVG

Case in other court: USCA, 18-55476

Cause: 42:4321 Review of Agency Action-Environment (Declaration of Purpose)

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

V. Defendant United States of America

represented by U S Attorney CV U S Attorneys Office Southern District of California

Defendant United States Department of Homeland Security
Defendant Acting Secretary Elaine Duke in her Official Capacity
Defendant United States Customs and Border Protection

Civil Division 880 Front Street Suite 6253 San Diego, CA 92101 (619)557-5662 Fax: (619)557-7122 Email: Efile.dkt.civ@usdoj.gov 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
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
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
represented by U S Attorney CV (See above for address) LEAD ATTORNEY

Defendant
Acting Commissioner Kevin K. McAleenan in his Official Capacity

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

Date Filed 09/20/2017
09/20/2017 09/20/2017 10/05/2017

# Docket Text
1 COMPLAINT against United States of America, United States Department of Homeland Security, Elaine Duke, United States Customs and Border Protection, Kevin K. McAleenan (Filing fee $400 receipt number 0974-10457503), filed by People of the State of California, California Coastal Commission. (Attachments: # 1 Civil Cover Sheet)
The new case number is 3:17-cv-1911-W-BLM. Judge Thomas J. Whelan and Magistrate Judge Barbara Lynn Major are assigned to the case. (Cayaban, Michael)(rmc) (jao). (Entered: 09/20/2017)
2 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. (rmc) (jao). (Entered: 09/20/2017)
3 NOTICE OF RELATED CASE(S) by California Coastal Commission, The, People of the State of California, The of case(s) 3:17-cv-01215-GPC-WVG and 3:17-cv-1873-JM-AGS re 1 Complaint, . (Cayaban, Michael) LNO prepared on 9/21/2017 (jao). (Entered: 09/20/2017)
4 ORDER OF TRANSFER PURSUANT TO LOW NUMBER RULE. Case reassigned to Judge Gonzalo P. Curiel and Magistrate Judge William V. Gallo for all further proceedings. Judge Thomas J. Whelan, Magistrate Judge Barbara Lynn Major no longer assigned to case. Create association to 3:17-cv-01215-GPC-WVG. The new case

number is 17cv1911-GPC(WVG). Signed by Judge Gonzalo P. Curiel on 9/20/2017. Signed by Judge Thomas J. Whelan on 10/2/2017. (jao) (Entered: 10/05/2017)

10/17/2017

5 Certificate of Service, NOTICE Proof of Service by Mail Report of Clerk and Order of Transfer Pursuant to Low Number Rule by California Coastal Commission, The, People of the State of California, The re 4 Order of Transfer Pursuant to Low Number Rule, (Cayaban, Michael) Incorrect event, edited to reflect document (dlg). (Entered: 10/17/2017)

10/19/2017

6 *** WITHDRAWN PER ECF 7 *** Joint MOTION to Consolidate Cases , Joint MOTION for Order Regarding Further Proceedings by Elaine Duke, Kevin K. McAleenan, United States Customs and Border Protection, United States Department of Homeland Security, United States of America. (Thorp, Galen)Attorney Galen N. Thorp added to party Elaine Duke(pty:dft), Attorney Galen N. Thorp added to party Kevin K. McAleenan(pty:dft), Attorney Galen N. Thorp added to party United States Customs and Border Protection(pty:dft), Attorney Galen N. Thorp added to party United States Department of Homeland Security(pty:dft), Attorney Galen N. Thorp added to party United States of America(pty:dft) QC email, document not signed. Attorney should withdraw and refile (dlg). Modified on 10/23/2017 (dlg). (Entered: 10/19/2017)

10/20/2017

7 NOTICE OF WITHDRAWAL OF DOCUMENT by United States Customs and Border Protection, United States Department of Homeland Security, Elaine Duke, Kevin K. McAleenan, United States of America re 6 Joint MOTION to Consolidate Cases Joint MOTION for Order Regarding Further Proceedings filed by Elaine Duke, United States Customs and Border Protection, Kevin K. McAleenan, United States of America, United States Department of Homeland Security . (Thorp, Galen) (dlg). (Entered: 10/20/2017)

10/20/2017

8 Joint MOTION to Consolidate Cases , Joint MOTION for Order Regarding Further Proceedings by Elaine Duke, Kevin K. McAleenan, United States Customs and Border Protection, United States Department of Homeland Security, United States of America. (Thorp, Galen) (dlg). (Entered: 10/20/2017)

10/24/2017

9 CONSOLIDATION ORDER (re ecf 8 ). Cases Consolidated, 17cv1215-GPC-WVG. All future docketing will be done in the lead case. Signed by Judge Gonzalo P. Curiel on 10/24/17.(dlg) (Entered: 10/24/2017)

02/27/2018 10

ORDER Denying Plaintiffs' Motions for Summary Judgment and Granting Defendants' Motions for Summary Judgment. Signed by Judge Gonzalo P. Curiel on 2/27/18.(See Motions in Lead Case 17cv1215-GPC-WVG) (dlg) (Entered: 03/26/2018)

03/26/2018 04/09/2018

11 CLERK'S JUDGMENT. The Court DENIES Plaintiffs' motions for summary judgment and GRANTS Defendants' motions for summary judgment (dlg) (jao). (Entered: 03/26/2018)
12 NOTICE OF APPEAL to the 9th Circuit as to 11 Clerk's

04/11/2018 04/11/2018
04/19/2018
04/26/2018 04/18/2019

Judgment, 10 Order Denying Plaintiffs' Motions for Summary Judgment and Granting Defendants' Motions for Summary Judgment, by California Coastal Commission, The, People of the State of California, The. (Filing fee $ 505 receipt number 0974-11093775.) (Notice of Appeal electronically transmitted to US Court of Appeals.) (Cayaban, Michael). (Modified on 4/9/2018: Edited docket text re linked Order.) (akr). (Entered: 04/09/2018)

13 USCA Case Number 18-55476 for 12 Notice of Appeal to 9th Circuit, filed by People of the State of California, The, California Coastal Commission, The. (akr) (Entered: 04/11/2018)

14 USCA Time Schedule Order as to 12 Notice of Appeal to 9th Circuit, filed by People of the State of California, The, California Coastal Commission, The. (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 6/8/2018.) (cc: Court Reporter). (Attachments: # 1 Transcript Designation and Ordering Form). (akr) (Entered: 04/11/2018)

15 ORDER of USCA as to 12 Notice of Appeal to 9th Circuit, filed by People of the State of California, The, California Coastal Commission, The. 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)

ORDER of USCA as to 12 Notice of Appeal to 9th Circuit, filed by

16

People of the State of California, The, California Coastal

Commission, The. 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)

17 MANDATE of USCA affirming the decision of the USDC as to 12 Notice of Appeal to the 9th Circuit filed by People of the State

of California, The, California Coastal Commission, The. (akr) (Entered: 04/18/2019)

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 Case 3:17-cv-01911-W-BLM Document 1 Filed 09/20/17 PageID.1 Page 1 of 53

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 Supervising Deputy Attorneys General JOHN APPELBAUM (SBN 149643)
5 NOAH GOLDEN-KRASNER (SBN 217556) JANELLE M. SMITH (SBN 231801)
6 AMIE MEDLEY (SBN 266586) DAVID P. ALDERSON (SBN 231597)
7 BAINE P. KERR (SBN 265894) Deputy Attorneys General
8 600 West Broadway, Suite 1800 San Diego, California 92101
9 Telephone: (619) 738-9313 Fax: (619) 645-2271
10 E-mail: Mike.Cayaban@doj.ca.gov Attorneys for the People of the State of
11 California, by and through Xavier Becerra, Attorney General, and the California Coastal
12 Commission

13

IN THE UNITED STATES DISTRICT COURT

14

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

15

16 THE PEOPLE OF THE STATE OF

Case No. '17CV1911 W BLM

17

CALIFORNIA, BY AND THROUGH XAVIER BECERRA, ATTORNEY

COMPLAINT FOR

18

GENERAL; THE CALIFORNIA COASTAL COMMISSION,

DECLARATORY AND INJUNCTIVE RELIEF

19

Plaintiffs,

20

v.

21

22 UNITED STATES OF AMERICA; UNITED

23

STATES DEPARTMENT OF HOMELAND SECURITY; ACTING SECRETARY

24

ELAINE DUKE, IN HER OFFICIAL CAPACITY; UNITED STATES CUSTOMS

25

AND BORDER PROTECTION; AND ACTING COMMISSIONER KEVIN K.

26

MCALEENAN, IN HIS OFFICIAL CAPACITY,

27

Defendants.

28
1

Complaint for Declaratory and Injunctive Relief

Case 3:17-cv-01911-W-BLM Document 1 Filed 09/20/17 PageID.2 Page 2 of 53

1

Plaintiffs, the People of the State of California, by and through Attorney

2 General Xavier Becerra (“People”), and the California Coastal Commission

3 (“Commission”) (collectively referred to as “Plaintiffs”), allege as follows:

4

INTRODUCTION

5

1. The People bring this action to protect the State of California’s residents,

6 natural resources, economic interests, procedural rights, and sovereignty from

7 violations of the United States Constitution, the National Environmental Policy Act

8 and the Administrative Procedure Act occurring as a result of the actions of the

9 United States of America, the United States Department of Homeland Security

10 (“DHS”), former DHS Secretary John Kelly in his official capacity, Acting DHS

11 Secretary Elaine Duke in her official capacity, the United States Customs and

12 Border Protection (“CBP”), and Acting CBP Commissioner Kevin K. McAleenan

13 in his official capacity (together “Defendants”), with respect to the planning and

14 construction of a border wall and related border barrier projects along the southern

15 border of the United States, including significant projects in California (“Border

16 Wall” or “Border Wall Projects”). The Commission brings this action to protect

17 natural resources within California’s coastal zone, land and water uses within the

18 coastal zone, and the Commission’s procedural rights from violations of the Coastal

19 Zone Management Act and other statutes resulting from Defendants’ actions

20 relating to the Border Wall.

21

2. As a presidential candidate, and subsequently as President, President

22 Trump repeatedly has stated his intent to build a wall across the entire United States

23 border with Mexico. On January 25, 2017, he issued Executive Order No. 13767

24 concerning “Border Security and Immigration Enforcement Improvements”

25 (“Executive Order”). The Executive Order directs the Secretary of DHS to identify

26 and “allocate all sources of Federal funds for the planning, designing and

27 construction of a physical wall along the southern border.”

28
2
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1

3. The Executive Order cites the Illegal Immigration Reform and Immigrant

2 Responsibility Act (“IIRIRA”) (Pub. L. 104–208; 8 U.S.C. § 1103 note) as

3 authority for the construction of the Border Wall. As amended by the Real ID Act

4 of 2005 (Pub. L. 109–13), the Secure Fence Act of 2006 (Pub. L. 109–367), and the

5 Department of Homeland Security Appropriations Act, 2008 (Pub. L. 110-161),

6 Section 102 of IIRIRA authorizes the Secretary of DHS to install “additional”

7 physical barriers along the United States border to deter illegal crossings in “areas

8 of high illegal entry” into the United States “along not less than 700 miles of the

9 southwest border.” 8 U.S.C. section 1103 note. IIRIRA also required the Secretary

10 to identify 370 miles of “priority areas” and it imposed a deadline to construct

11 reinforced fencing in those areas by no later than December 31, 2008. 8 U.S.C.

12 section 1103 note.

13

4. Since 2006, under the Congressional authority granted to it, DHS

14 installed hundreds of miles of reinforced fencing along the US-Mexico border.

15 There are currently 702 miles of primary, secondary and tertiary fencing along

16 approximately 654 miles of the border. This includes primary pedestrian and/or

17 vehicle barriers along most of the 140.4-mile-long border within California, and

18 multiple layers of reinforced fencing along a 14-mile segment of the western end of

19 the border in San Diego County. The Secretary of DHS also identified “priority

20 areas” for expedited construction pursuant to the requirements of the provision. In

21 April 2008, the Secretary last exercised his authority to waive federal laws. DHS

22 completed all of the “priority areas” projects authorized by Congress under Section

23 102. By doing so, the DHS completed its task as envisioned and authorized in

24 Section 102 of IIRIRA. 8 U.S.C. § 1103 note, subdivision (b)(1).

25

5. In 2017, DHS announced that initial construction of Border Wall projects

26 will occur in Naco, Arizona; Sunland Park, New Mexico; San Diego County,

27 California; Imperial County, California; El Paso, Texas; and, the Rio Grande

28 Valley, Texas. With respect to San Diego County, DHS announced that, pursuant
3
Complaint for Declaratory and Injunctive Relief

Case 3:17-cv-01911-W-BLM Document 1 Filed 09/20/17 PageID.4 Page 4 of 53

1 to the Executive Order, it intends to replace 14 miles of existing primary fencing

2 with new fencing and to replace 14 miles of existing secondary fencing with a solid

3 wall or other barrier. DHS has also solicited and received design bids from

4 contractors seeking to design and build the Border Wall, and has announced that

5 selected contractors will build prototypes of their Border Wall designs in San Diego

6 County, as part of the bidding process.

7

6. Section 102 of IIRIRA contains a provision that allows the Secretary of

8 DHS to waive any law he or she deems necessary to expeditiously construct

9 reinforced fencing authorized under that section. 8 U.S.C. § 1103 note, subdivision

10 (c). On August 2, 2017, former Secretary John Kelly attempted to exercise this

11 waiver authority by publishing a Notice of Determination in the Federal Register.

12 Determination pursuant to Section 102 of [IIRIRA], as Amended, 82 Fed. Reg. 35

13 984 (August 2, 2017) (“San Diego Waiver”). The San Diego Waiver states “DHS

14 will immediately implement various border infrastructure projects” within the

15 “Project Area.” Id. The Project Area is described as a fifteen-mile segment of the

16 border within the United States Border Patrol’s San Diego Sector beginning at the

17 Pacific Ocean and extending eastward. The only infrastructure projects specifically

18 identified in the San Diego Waiver are the replacement of 14 miles of existing

19 primary fencing and the construction of prototype border walls (hereinafter “San

20 Diego Project”). Id. The San Diego Waiver purports to waive more than 30 federal

21 laws, as well as all state and local laws derived or related thereto, to expedite the

22 construction of all of the “various border infrastructure projects” that DHS intends

23 to build within the Project Area.

24

7. On September 12, 2017, Acting DHS Secretary Elaine Duke attempted to

25 exercise Section 102’s waiver provision with respect to the proposed replacement

26 of fencing in another area of California by publishing a Notice of Determination in

27 the Federal Register. Determination Pursuant to Section 102 of IIRIRA, as

28 Amended, 82 Fed. Reg. 42829 (September 12, 2017) (“Calexico Waiver”). The
4
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Case 3:17-cv-01911-W-BLM Document 1 Filed 09/20/17 PageID.5 Page 5 of 53

1 Calexico Waiver states that “DHS will take immediate action to replace existing

2 primary fencing” along a segment of the border that starts near the Calexico West

3 Land Port of Entry and extends three miles to the west. (“Calexico Project”). The

4 Calexico Waiver purports to waive 27 federal laws, as well as all state and local

5 laws derived from or related thereto, to expedite the fence replacement project.

6

8. In this action for declaratory and injunctive relief, Plaintiffs challenge

7 Defendants’ failure to comply with the requirements of the National Environmental

8 Policy Act, 42 U.S.C. § 4321 et. seq. (1970) as amended (“NEPA”) the

9 Administrative Procedure Act, 5 U.S.C. § 551 et. seq. (1946) as amended (“APA”),

10 and the Coastal Zone Management Act, 16 U.S.C. § 1451 et. seq. (1972) as

11 amended (“CZMA”). The Plaintiffs request the Court enjoin DHS from engaging

12 in any and all planning, design and construction activities related to installing

13 barriers along the United States-Mexico border, including the construction of

14 prototypes, and all other infrastructure plans referenced in the San Diego and

15 Calexico Waivers, until DHS fully complies with these laws.

16

9. Plaintiffs also seek a judicial declaration by this Court that Section 102 of

17 IIRIRA, the provision cited in the Executive Order, does not apply to DHS’s

18 proposed construction of a Border Wall, which includes but is not limited to the

19 construction of prototype walls and fences, the construction of barriers and roads

20 that are not in areas of high illegal entry, the construction of barriers that are not in

21 areas where the fencing would be most practical and effective, and the replacement

22 of existing walls and fencing along the United States-Mexico border.

23

10. Plaintiffs also seek a judicial declaration by this Court that the San Diego

24 and Calexico Waivers fail to meet the requirements of Section 102 of IIRIRA, that

25 former Secretary DHS Kelly and Acting DHS Secretary Duke acted outside of their

26 statutory authority in issuing the waivers, and that both waivers are invalid and

27 ineffective. The waivers are invalid because the described projects do not involve

28 the installation of “additional” fencing or the construction of barriers in areas of
5
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1 high illegal entry, and are not located where additional fencing would be most

2 practical and effective. The San Diego and Calexico waivers are also invalid

3 because Defendants are attempting to rely on a provision relating to expeditious

4 construction 10 years after the statute was last amended and nine years after the

5 authority to waive laws for expedited construction in priority areas expired.

6

11. Additionally, Plaintiffs seek an order declaring the San Diego and

7 Calexico Waivers are improper and unconstitutional in that they attempt to waive

8 laws to expedite the construction of undisclosed projects, denying Plaintiffs and

9 other parties a reasonable opportunity to determine if the undisclosed projects are

10 authorized by Section 102 and how the undisclosed projects might impact their

11 interests.

12

12. Finally, Plaintiffs seek an order declaring Section 102 to be

13 unconstitutional on both its face and as applied, and invalidating Section 102, the

14 portion of the Executive Order that authorizes the use of Section 102 to build the

15 Border Wall and the San Diego and Calexico Projects, and the San Diego and

16 Calexico Waivers.

17

JURISDICTION AND VENUE

18

13. This Court has jurisdiction because this action arises under the United

19 States Constitution pursuant to Article I, Article III, and the Fifth and Tenth

20 Amendments of the United States Constitution, and also pursuant to 28 U.S.C. §§

21 1331 and 1346, and 5 U.S.C. §§ 701 to 706.

22

14. An actual, present and justiciable controversy exists between the parties

23 within the meaning of 28 U.S.C. § 2201(a), and this Court has authority to grant

24 declaratory and injunctive relief under 28 U.S.C. §§ 1651, 2201 and 2202, and 5

25 U.S.C. §§ 705 and 706.

26

15. The People have been granted a right to sue under the APA and NEPA

27 because they fall within the APA’s broad definition of a “person . . . adversely

28 affected or aggrieved by agency action. . . .” 5 U.S.C. § 702; see also 5 U.S.C. §
6
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1 551(2). The People and the Commission have also been granted the right to sue for

2 violations of the CZMA. 5 U.S.C. § 702; see also, State of California v. Norton,

3 311 F.3d 1162, 1170 (9th Cir. 2002).

4

16. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(e)

5 because all parties have offices within this district and therefore reside in this

6 district, because a substantial part of the events or omissions giving rise to the

7 claims occurred in this district, and/or a substantial part of the property that is the

8 subject of the action is situated in this district. Moreover, other cases that relate to

9 Defendants’ Border Wall projects have been filed in this judicial district.

10

PARTIES

11

17. The People of the State of California, as plaintiff, bring this action by and

12 through Xavier Becerra, Attorney General of the State of California. Attorney

13 General Becerra is the chief law officer of the State of California and has the

14 authority to file civil actions in order to protect the People’s rights and interests, the

15 environment, and the natural resources of this State. Cal. Const., art V, § 13, Cal.

16 Gov. Code §§ 12600-12612, 12511-12512. This challenge is brought pursuant to

17 the Attorney General’s independent constitutional, common law, and statutory

18 authority. In this case, the interest the Attorney General seeks to advance and

19 protect is not limited to a parens patriae interest in the general welfare of

20 California’s citizens, but rather encompasses California’s procedural interests,

21 interests in the specific natural resources of this State - such as wildlife, fish, and

22 water - that are held in trust by the State for the People, economic interests in

23 maintaining tourism and trade with Mexico, economic interests relating to the

24 management of real property adjacent to the border, and sovereign interests in

25 enacting and enforcing its own laws.

26

18. The Commission is a state agency designated as the agency responsible

27 for implementing the CZMA within California’s coastal zone and developing state

28 programs designed to meet the goals of the CZMA. American Petroleum Institute
7
Complaint for Declaratory and Injunctive Relief

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1 v. Knecht, 609 F.2d 1306 (9th Cir. 1979); Cal. Pub. Res. Code §§ 30008, 30330.

2 The Commission has jurisdictional and procedural interests in ensuring that

3 activities within or affecting California’s coastal zone will not negatively affect any

4 land or water uses within the coastal zone or negatively affect any natural resources

5 within the coastal zone.

6

19. Defendant United States of America is responsible for enacting and

7 enforcing laws that are consistent with the Constitution of the United States.

8

20. Defendant Department of Homeland Security (“DHS”) is the federal

9 agency responsible for providing border security along the U.S.-Mexico border in a

10 manner that is consistent with the laws and Constitution of the United States.

11

21. Defendant Elaine Duke, the Acting Secretary of DHS, is responsible for

12 the actions and decisions that are being challenged by Plaintiffs in this action and is

13 sued in her official capacity.

14

22. Defendant U.S. Customs and Border Protection (“CBP”) is a federal

15 agency within DHS responsible for implementing the actions and decisions being

16 challenged by Plaintiffs in this action.

17

23. Defendant Kevin K. McAleenan, the Acting Commissioner of CBP, is

18 responsible for implementing the actions and decisions being challenged by

19 Plaintiffs in this action and is sued in his official capacity.

20

SUMMARY OF THE LAW

21 I. NATIONAL ENVIRONMENTAL POLICY ACT (“NEPA”)

22

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

23 40 C.F.R. § 1500. l (a). It was enacted with the ambitious objectives of

24 “encouraging productive and enjoyable harmony between man and his environment

25 . . . promoting efforts which will prevent or eliminate damage to the environment

26 and biosphere and stimulating the health and welfare of man; and enriching the

27 understanding of the ecological systems and natural resources important to the

28 Nation. . .” 42 U.S.C. 4321.

8 Complaint for Declaratory and Injunctive Relief

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1

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

2 procedures, most significantly the mandate to prepare an environmental impact

3 statement (“EIS”) on major federal actions “significantly affecting the quality of the

4 human environment.” Robertson v. Methow Valley Citizen Council, 490 U.S. 332,

5 348 (1989); 42 U.S.C. § 4332 (2)(C).

6

26. The Supreme Court has found that the preparation of an EIS promotes

7 NEPA's broad environmental objectives in two primary ways: “It ensures that the

8 agency, in reaching its decision, will have available, and will carefully consider,

9 detailed information concerning significant environmental impacts; it also

10 guarantees that the relevant information will be made available to the larger

11 audience that may also play a role in both the decision making process and the

12 implementation of that decision.” Robertson, 490 U.S. at 349.

13

27. NEPA mandates disclosure and consideration of direct, indirect, and

14 cumulative environmental effects. 40 C.F.R. §§ 1502.16, 1508.7, 1508.8,

15 l508.27(b)(7).

16

28. Direct effects are caused by the action and occur at the same time and

17 place as the proposed project. 40 C.F.R. § 1508.8(a). Indirect effects are caused by

18 the action and are later in time or farther removed in distance, but are still

19 reasonably foreseeable. 40 C.F.R. § l 508.8(b). These effects include “ecological

20 (such as the effects on natural resources and on the components, structures, and

21 functioning of affected ecosystems), aesthetic, historic, cultural, economic, social,

22 or health whether direct, indirect, or cumulative.” 40 C.F.R. § 1508.8.

23

29. In determining whether a federal action significantly affects the quality of

24 the human environment, federal agencies must consider several factors relating to

25 the “intensity” of the project, including: the “[u]nique characteristics of the

26 geographic area such as proximity to historic or cultural resources, park lands . . .

27 wetlands, wild and scenic rivers, or ecologically critical areas” (40 C.F.R. §

28 1508.27(3)); “[t]he degree to which the effects on the quality of the human
9
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1 environment are likely to be highly controversial” (40 C.F.R. § 1508.27(4));

2 “[w]hether the action is related to other actions with individually insignificant but

3 cumulatively significant impacts” (40 C.F.R. § 1508.27(7)); “[t]he degree to which

4 the action may adversely affect an endangered or threatened species or its habitat

5 that has been determined to be critical under the Endangered Species Act of 1973”

6 (40 C.F.R. § 1508.27(9)); and, “[w]hether the action threatens a violation of

7 Federal, State, or local law or requirements imposed for the protection of the

8 environment.” 40 C.F.R. § 1508.27(10).

9

30. A proposal subject to NEPA exists where an agency has a goal and is

10 actively preparing to make a decision on the alternatives in accomplishing that goal,

11 regardless of whether the agency declares that such a proposal exists: “An agency

12 shall commence preparation of an environmental impact statement as close as

13 possible to the time the agency is developing or is presented with a proposal.” 40

14 C.F.R. § 1502.5. A “Proposal exists at that stage in the development of an action

15 when an agency subject to the Act has a goal and is actively preparing to make a

16 decision on one or more alternative means of accomplishing that goal and the

17 effects can be meaningfully evaluated.” 40 C.F.R. § 1508.23.

18

31. An EIS must include a statement of purpose and need to which the

19 agency is responding, an analysis of a reasonable range of alternatives and a

20 comparison of their environmental impacts, an analysis of affected areas and

21 resources, and an assessment of the environmental consequences of the proposed

22 action and alternatives (including direct, indirect and cumulative effects on the

23 environment.) 40 C.F.R. §§ 1502.10-1502.19.

24

32. An EIS is prepared in two stages. A draft EIS must be prepared first and

25 then published in order to obtain comments from the public and from governmental

26 agencies. Following a period of public comment, the federal agency must then

27 prepare a final EIS that responds to all comments received on the draft EIS. 40

28 C.F.R. § 1503.

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1

33. “The purpose of an EIS is to apprise decision makers of the disruptive

2 environmental effects that may flow from their decisions at a time when they ‘retain

3 [ ] a maximum range of options.’” Conner v. Burford, 848 F.2d 1441, 1446 (9th

4 Cir. 1988.) Thus, “NEPA requires that the evaluation of a project’s environmental

5 consequences take place at an early stage in the project’s planning process. State of

6 California v. Block, 690 F.2d 753, 761 (9th Cir. 1982) [citation omitted]. “The

7 statement shall be prepared early enough so that it can serve practically as an

8 important contribution to the decision making process and will not be used to

9 rationalize or justify decisions already made.” 40 C.F.R. § 1502.5.

10

34. The People have a concrete and particularized interest in protecting “the

11 State of California’s territory and its proprietary interests both from direct harm and

12 from spill-over effects resulting from action on federal land.” Sierra Forest Legacy

13 v. Sherman, 646 F.3d 1161, 1178 (9th Cir. 2011.) The construction of a Border

14 Wall, prototypes for a Border Wall, and /or replacement fencing of a different type

15 than the current fencing would have such direct and spill-over effects.

16 II. ADMINISTRATIVE PROCEDURE ACT (“APA”)

17

35. The APA provides for judicial review of “final agency action for which

18 there is no other adequate remedy.” 5 U.S.C. § 704. Agency action is defined to

19 include “the whole or a part of an agency rule, order, license, sanction, relief, or the

20 equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13). The APA

21 requires that courts “hold unlawful and set aside agency action, findings, and

22 conclusions” that are arbitrary, capricious, an abuse of discretion, or otherwise not

23 in accordance with law, or without observance of procedure required by law.” 5

24 U.S.C. § 706(2)(A), (D).

25

36. In reviewing a challenge to an agency’s failure to act, the APA directs

26 that the court “shall compel agency action unlawfully withheld or unreasonably

27 delayed.” 5 U.S.C. § 706(1).

28
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1 III. THE COASTAL ZONE MANAGEMENT ACT (“CZMA”)

2

37. The Coastal Zone Management Act (“CZMA”) is a federal law intended

3 to “preserve, protect, develop and where possible, to restore and enhance the

4 resources of the nation’s coastal zone.” 16 U.S.C. § 1452.

5

38. The CZMA authorizes states to designate a “State Agency” responsible

6 for implementing the CZMA within that particular state’s coastal zone and to

7 develop state programs designed to meet the goals of the CZMA. The California

8 Coastal Act designates the California Coastal Commission (“Commission”) as the

9 “state agency” responsible for implementing the CZMA over California’s ocean

10 coastline. Cal. Pub. Resources Code §§ 30300 et seq.

11

39. The Commission developed the California Coastal Management Program

12 (“CCMP”) in order to achieve that goal. 16 U.S.C. § 1454(c); Cal. Pub. Resources

13 Code § 30330. The federal government approved the CCMP in 1977 as compliant

14 with the requirements of the CZMA.

15

40. Federal approval of the CCMP triggered the consistency requirements of

16 the CZMA. When a federal agency undertakes an activity, occurring inside or

17 outside the coastal zone, that affects directly or indirectly any land or water uses or

18 natural resources of the California coastal zone, the CZMA requires that the agency

19 must provide a “consistency determination” to the Commission. 16 U.S.C.

20 § 1456(c)(1)(A). The consistency determination must include a statement

21 indicating that the federal action will be undertaken in a manner that is consistent to

22 the maximum extent practicable with the CCMP. 16 U.S.C. § 1456(C)(2); 15

23 C.F.R. 930.32, 930.39. Alternatively, the federal agency may prepare a negative

24 determination if the agency determines that the project will not affect any coastal

25 use or resource.

26

41. The federal agency proposing a development project is required to

27 provide the Commission with a “consistency determination” or “negative

28 determination” “at the earliest practicable time in the planning” of the development
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1 project. 15 C.F.R. § 930.36. “A consistency determination should be prepared

2 following the development of sufficient information to reasonably determine the

3 consistency of the activity with the management program, but before the Federal

4 agency reaches a significant point of decision making in its review process, i.e.,

5 while the Federal agency has the ability to modify the activity.” 15 C.F.R.

6 § 930.36(b).

7

42. The Commission is entitled to review the federal agency’s consistency

8 determination and may file objections to the determination and/or seek additional

9 information from the agency regarding its determination. 15 C.F.R. §§ 930.39 -

10 930.42. The Commission is further entitled to request mediation by the Secretary

11 of Commerce if the dispute cannot be resolved and/or seek judicial review. 15

12 C.F.R. § 930.116. If a federal agency decides to carry out an activity despite a

13 Commission objection, the Commission is entitled to seek judicial review pursuant

14 to the APA. State of California v. Norton, 311 F.3d 1162, 1170 (9th Cir. 2002).

15 IV. SECTION 102 OF IIRIRA

16

43. Section 4 of the Executive Order relies upon Section 102 of IIRIRA as

17 the legal basis for replacing border fences. 82 Fed. Reg. 8793.

18

44. Before 1996, there was no express statutory authority that permitted or

19 required construction of barriers along U.S. borders. That changed when Congress

20 passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

21 (Pub. L. 104-208). Section 102 of IIRIRA authorized the U.S. Attorney General, in

22 consultation with the Commissioner of Immigration and Naturalization, to “take

23 such actions as may be necessary to install additional physical barriers and

24 roads . . . in the vicinity of the United States border to deter illegal crossings in

25 areas of high illegal entry into the United States.” Id. § 102(a). Section 102 also

26 required construction of second and third fences parallel to a 14-mile segment of

27 primary fencing installed a few years earlier along the border near San Diego. The

28 14-mile segment starts at the Pacific Ocean and extends 14 miles east. Id. § 102(b).
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1 Further, Section 102 contained a provision that permitted the Attorney General to

2 waive application of the ESA and NEPA “to the extent the Attorney General

3 determines necessary to ensure expeditious construction of the barriers and roads

4 under this section.” Id. § 102(c).

5

45. The Real ID Act of 2005 (Pub. L. 109-113 Div. B) amended Section 102

6 of IIRIRA by transferring the waiver authority from the Attorney General to the

7 Secretary of Homeland Security, and expanding the waiver authority to include “all

8 legal requirements such Secretary, in such Secretary’s sole discretion, determines

9 necessary to ensure expeditious construction of the barriers and roads under this

10 section.” Section 102 did not specify the laws that Congress authorized the

11 Secretary to waive. It also limited legal challenges to any waiver decision to

12 constitutional claims, and eliminated appellate court review.

13

46. The Secure Fence Act of 2006 (Pub. L. 109-367) amended Section 102 of

14 IIRIRA again by removing the provisions referring specifically to the 14-miles of

15 fencing in San Diego, and instead directing DHS to construct two layers of

16 reinforced fencing along five separate segments of the border, totaling more than

17 800 miles.

18

47. The Department of Homeland Security Appropriations Act, 2008 (Pub.

19 L. 110-161) (“2008 Amendment”) amended Section 102 a third and final time by

20 removing requirements for doubled-layered fencing in specific locations, and by

21 directing the Secretary of Homeland Security to construct reinforced fencing along

22 not less than 700 miles of the border where it would be most practical and effective.

23 The 2008 Amendment also amended the statute by striking the phrase “Security

24 Features” from the heading for subdivision (b)(1) and replacing it with the phrase

25 “Additional Fencing Along Southwest Border.”

26

48. The 2008 Amendment also amended the statute by compelling the

27 Secretary of Homeland Security to designate “Priority Areas” for 370 miles of

28 additional fencing, and by compelling the Secretary to expedite the construction of
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1 said fencing in these “priority areas,” requiring the completion of construction by

2 not later than December 31, 2008. (Pub. L. 110-161.). Thus, Congress imposed a

3 December 31, 2008 deadline for the expedited construction of additional barriers

4 and roads in priority areas under Section 102.

5

49. There have been no amendments to Section 102 of IIRIRA since the

6 2008 Amendment was signed into law.

7

Subsections (a) and (b) of Section 102 currently state that:

8

(a) In General. — The Secretary of Homeland Security shall

take such actions as may be necessary to install additional physical

9

barriers and roads (including the removal of obstacles to detection of

10

illegal entrants) in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States.

11

(b) Construction of Fencing and Road Improvements Along the

Border.—

12

(1) Additional fencing along southwest border.—

13

(A) Reinforced fencing.— In carrying out subsection (a), the

14

Secretary of Homeland Security shall construct reinforced fencing along

not less than 700 miles of the southwest border where fencing would be

15

most practical and effective and provide for the installation of additional

physical barriers, roads, lighting, cameras, and sensors to gain

16

operational control of the southwest border.

17

(B) Priority areas. — In carrying out this section, the Secretary

of Homeland Security shall —

18

(i) identify the 370 miles, or other mileage determined

19

by the Secretary, whose authority to determine other mileage

shall expire on December 31, 2008, along the southwest border

20

where fencing would be most practical and effective in deterring

21

smugglers and aliens attempting to gain illegal entry into the United States; and

22

(ii) not later than December 31, 2008, complete

construction of reinforced fencing along the miles

23

identified under clause (i).

24

50. Subsection (c) of Section 102 further states “Notwithstanding any other

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

26 waive all legal requirements such Secretary, in such Secretary’s sole discretion,

27 determines necessary to ensure expeditious construction of the barriers and roads

28
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1 under this section.” The section is limited to the installation of “additional barriers

2 and roads . . . in areas of high illegal entry.” Section 102(a).

3

51. Section 102 of IIRIRA does not authorize the replacement of existing

4 barriers or roads along the southwest border.

5

52. Section 102 of IIRIRA does not authorize the construction of temporary

6 prototype walls along the southwest border.

7

53. Section 102 of IIRIRA does not authorize the construction of barriers and

8 roads along the southwest border other than in “areas of high illegal entry into the

9 United States” and in areas where the barriers would be most practical and

10 effective.

11

54. Section 102 of IIRIRA imposed a deadline on the Secretary’s authority to

12 identify and construct reinforced fencing in “priority areas” by no later than

13 December 31, 2008.

14

FACTUAL ALLEGATIONS

15 I. EXISTING INFRASTRUCTURE ALONG THE U.S.-MEXICO BORDER

16

55. Between 1990 and 1993, the United States constructed 10-foot-high solid

17 steel fencing along a 14-mile segment of the border in San Diego County, with its

18 western end beginning at the Pacific Ocean. This section of fencing, which was

19 placed directly on the U.S.-Mexico border, is referred to as the San Diego primary

20 fence.

21

56. In 1994, USBP enacted a program known as “Operation Gatekeeper,”

22 which included a large increase in the number of border patrol agents and other

23 resources deployed to the San Diego Sector. Over a four-year period, the number

24 of agents assigned to the San Diego sector increased by 150% and the number of

25 seismic sensors increased by 171%.

26

57. In 1996, former INS began construction of a multi-tiered fencing project

27 in the western-most portion of the San Diego sector. The project, which was

28 initially referred to as the Triple-Fence Project and later known as the 14-Mile
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1 Border Infrastructure Project (“14-Mile BIS”), called for the construction of new

2 secondary and tertiary fencing that would parallel the existing, San Diego primary

3 fence.

4

58. The entire 14-Mile BIS fell within the watershed of the Tijuana River, a

5 river that culminates in the United States where the Tijuana River estuary meets the

6 Pacific Ocean. The western-most 4.5 miles of the 14-Mile BIS abuts the Tijuana

7 River National Estuarine Research Reserve (“Tijuana Reserve”), the County of San

8 Diego’s Tijuana Valley Regional Park, and the State of California’s Border Field

9 State Park. The United States Fish and Wildlife Service and other federal, state and

10 local governmental entities reported that the 14-Mile BIS would result in the taking

11 of several endangered plant and animal species, the destruction of critical habitat

12 and the degradation of impaired bodies of water.

13

59. In September 2005, former DHS Secretary Michael Chertoff executed a

14 waiver, pursuant to subsection (c) of Section 102 of IIRIRA, seeking to waive all

15 federal and state “legal requirements deriving from or related to the subject of”

16 several laws, including NEPA, the Endangered Species Act, the APA, the CZMA,

17 and the Clean Water Act. The waiver referred specifically to the expedited

18 construction of a “second and third fence” extending eastward from the Pacific

19 Ocean as set forth in the original version of IIRIRA. 70 Fed. Reg. 55622.

20

60. The 14-Mile BIS Project was completed in 2009, approximately,

21 consisting of secondary fencing that parallels the pre-existing primary fencing

22 installed in the early 1990s. The 14-Mile Border Infrastructure Project also

23 includes tertiary fencing to the north of the secondary fence in selected locations.

24 Currently, as a result of the 14-Mile BIS, there are at least two fences along a 14-

25 mile segment of the border beginning at the Pacific Ocean and extending eastward.

26 In 2009, the Government Accountability Office projected that the cost of the final

27 4.5 miles of the project was $96 million, roughly $21 million per mile.

28
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1

61. Construction of the 14-Mile BIS resulted in the destruction of sensitive

2 upland and wetland habitats, the taking of endangered plant and animal species, the

3 spread of invasive plant species, and the increase in sedimentation within Border

4 Field State Park and the Tijuana Reserve. These areas have also been designated as

5 Federally critical and/or sensitive habitats.

6

62. DHS relied on Section 102’s waiver provision to expedite the

7 construction of additional primary pedestrian fencing and primary vehicle fencing

8 in other parts of California, as well as in Arizona, New Mexico and Texas.

9

63. The Secretary of DHS invoked the waiver authority conferred in Section

10 102 five times during the period of September 2005 through April 2008, in

11 relatively close succession following amendments to Section 102 of IIRIRA during

12 that same time period. 70 Fed. Reg. 55622; 72 Fed. Reg. 2535; 72 Fed. Reg.

13 60870; 73 Fed. Reg. 19077; 73 Fed. Reg. 19078.

14

64. Each waiver related to particular border infrastructure projects at specific

15 areas along the border and was used to expedite the construction of additional

16 fencing or roads that did not previously exist; none was used to authorize the

17 expedited replacement of pre-existing barriers. 70 Fed. Reg. 55622; 72 Fed. Reg.

18 2535; 72 Fed. Reg. 60870; 73 Fed. Reg. 19077; 73 Fed. Reg. 19078.

19

65. Former DHS Secretary Chertoff waived 36 federal laws as well as state

20 laws and regulations derived from or relating to several federal statutes. These laws

21 included NEPA, ESA, Coastal Zone Management Act, Resource Conservation and

22 Recovery Act and the Clean Water Act. 70 Fed. Reg. 55622; 72 Fed. Reg. 2535;

23 72 Fed. Reg. 60870; 73 Fed. Reg. 19077; 73 Fed. Reg. 19078. Two of the waivers

24 were used to waive laws enacted by the State of California. 70 Fed. Reg. 55622; 73

25 Fed. Reg. 19078.

26

66. In 2008, before the December 31, 2008 deadline established by the 2008

27 Amendment, former Secretary Chertoff identified more than 370 miles of priority

28 areas for expedited construction and committed DHS to completing a total of 661
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1 miles of border fencing by the first half of 2009. Former Secretary Chertoff issued

2 waivers April 2008 to complete this construction. 73 Fed. Reg. 19077; 73 Fed.

3 Reg. 19078.

4

67. Currently, there are 702 miles of fencing along 654 miles of the U.S.-

5 Mexico border. This includes CBP’s installation of 37 miles of secondary fencing

6 and 14 miles of tertiary fencing, completing the goal of 700 miles as contemplated

7 in IIRIRA.

8 II. THE EXECUTIVE ORDER AND DESCRIPTIONS OF THE BORDER WALL

PROJECT INCLUDING THE CONSTRUCTION OF PROTOTYPES, THE

9

REPLACEMENT OF EXISTING FENCES AND THE CONSTRUCTION OF

ADDITIONAL BARRIERS IN SELECTED LOCATIONS

10

11

68. On January 25, 2017, President Trump issued Executive Order No.

12 13767 authorizing the Secretary of Homeland Security to “take all appropriate steps

13 to immediately plan, design, and construct a physical wall along the southern

14 border, using appropriate materials and technology to most effectively achieve

15 complete operational control of the southern border.” The Executive Order defines

16 the term “wall” as “a contiguous, physical wall or other similarly secure,

17 contiguous, and impassable physical barrier.” The Executive Order does not

18 distinguish between “areas of high illegal entry” and other areas of the southwest

19 border, nor does it direct the Secretary of Homeland Security to identify “priority

20 areas” for construction. 82 Fed. Reg. 8793. The Executive Order cites the

21 Immigration and Nationality Act (8 U.S.C. 1101 et seq.) and Section 102 of IIRIRA

22 as authority for the project. 82 Fed. Reg. 8793.

23

69. In March 2017, DHS solicited design proposals for two different types of

24 barriers, one a reinforced concrete wall and the other an unspecified barrier. DHS

25 announced that it selected contractors to construct prototypes of their designs in the

26 Otay Mesa area of San Diego County, in an area approximately 120 feet from the

27 U.S. border. Construction of these prototypes is scheduled to commence in the fall

28 of 2017.

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1

70. On May 2, 2017, at a joint White House press briefing featuring former

2 Secretary Kelly and Office of Management and Budget Director Mick Mulvaney,

3 Mr. Mulvaney stated that DHS is complying with the Executive Order and fulfilling

4 President Trump’s promise to build a Border Wall by replacing existing border

5 fence in selected locations with a “steel wall.” He acknowledged that these

6 replacement activities did not constitute the installation of “new” barriers.

7

71. DHS has already determined the location of portions of the proposed

8 Border Wall project. On May 3, 2017, former White House Press Secretary Sean

9 Spicer stated that as part of President Trump’s commitment to “building a wall,”

10 the administration is currently engaged in projects to replace existing fencing with

11 new “bollard walls” in Naco, Arizona and Sunland Park, New Mexico. Mr. Spicer

12 further stated that the administration would begin its replacement of existing fences

13 in “San Diego, El Paso and Rio Grande Valley.”

14

72. On June 13, 2017, Border Patrol chief Carla Provost testified at a

15 Congressional hearing that four to eight prototypes will be built in the San Diego

16 and Rio Grande Valley areas beginning in late summer 2017. Ms. Provost also

17 confirmed that forty miles of fencing will be replaced in San Diego, El Paso, and El

18 Centro.

19

73. In addition to these publicized aspects of the Border Wall project,

20 Plaintiffs are informed and believe that DHS is currently engaged in the grading of

21 and widening of dirt roads in areas along the border, including areas containing

22 sensitive biological resources in east San Diego County, as part of the Border Wall

23 project. DHS is engaged in this activity despite the fact that DHS failed to comply

24 with the requirements of NEPA.

25 III. THE SAN DIEGO AND CALEXICO WAIVERS

26

74. The San Diego Waiver was published in the Federal Register on August

27 2, 2017. 82 Fed. Reg. 35,984. The summary of the San Diego Waiver states that

28 “[t]he Secretary of Homeland Security has determined, pursuant to law, that it is
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1 necessary to waive certain laws, regulations and other legal requirements in order to

2 ensure the expeditious construction of barriers and roads in the vicinity of the

3 international land border of the United States near the city of San Diego in the state

4 of California.” Id.

5

75. The San Diego Waiver further states the Secretary’s finding that the area

6 “[s]tarting at the Pacific Ocean and extending to approximately one mile east of

7 Border Monument 251” is “an area of high illegal entry,” that “[t]here is presently a

8 need to construct physical barriers and roads, including the infrastructure projects”

9 described earlier in the waiver, and that he has determined it necessary to “exercise

10 the authority that is vested in me by Section 102(c) of IIRIRA as amended.” Id.

11

76. The San Diego Waiver purports to waive “in their entirety, with respect

12 to the construction of roads and physical barriers . . . in the Project Area, the

13 following statutes, including all federal, state, or other laws, regulations and legal

14 requirements of, deriving from, or related to the subject of, the following statutes,

15 as amended: The National Environmental Policy Act (Pub. L. 91–190, 83 Stat. 852

16 (Jan. 1, 1970) (42 U.S.C. 4321 et eq.)), the Endangered Species Act (Pub. L. 93–

17 205, 87 Stat. 884 (Dec. 28, 1973) (16 U.S.C. 1531 et seq.)), the Federal Water

18 Pollution Control Act (commonly referred to as the Clean Water Act (33 U.S.C.

19 1251 et seq.)), the National Historic Preservation Act (Pub. L. 89–665, 80 Stat. 915

20 (Oct. 15, 1966), as amended, repealed, or replaced by Pub. L. 113–287 (Dec. 19,

21 2014) (formerly codified at 16 U.S.C. 470 et seq., now codified at 54 U.S.C.

22 100101 note and 54 U.S.C. 300101 et seq.)), the Migratory Bird Treaty Act (16

23 U.S.C. 703 et seq.), the Migratory Bird Conservation Act (16 U.S.C. 715 et seq.),

24 the Clean Air Act (42 U.S.C. 7401 et seq.), the Archeological Resources Protection

25 Act (Pub. L. 96–95 (16 U.S.C. 470aa et seq.)), the Paleontological Resources

26 Preservation Act (16 U.S.C. 470aaa et seq.), the Federal Cave Resources Protection

27 Act of 1988 (16 U.S.C. 4301 et seq.), the National Trails System Act (16 U.S.C.

28 1241 et seq.), the Safe Drinking Water Act (42 U.S.C. 300f et seq.), the Noise
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1 Control Act (42 U.S.C. 4901 et seq.), the Solid Waste Disposal Act, as amended by 2 the Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq.), the 3 Comprehensive Environmental Response, Compensation, and Liability Act (42 4 U.S.C. 9601 et seq.), the Archaeological and Historic Preservation Act (Pub. L. 86– 5 523, as amended, repealed, or replaced by Pub. L. 113–287 (Dec. 19, 2014) 6 (formerly codified at 16 U.S.C. 469 et seq., now codified at 54 U.S.C. 312502 et 7 seq.)), the Antiquities Act (formerly codified at 16 U.S.C. 431 et seq., now codified 8 54 U.S.C. 320301 et seq.), the Historic Sites, Buildings, and Antiquities Act 9 (formerly codified at 16 U.S.C. 461 et seq., now codified at 54 U.S.C. 3201– 10 320303 & 320101–320106), the Wild and Scenic Rivers Act (Pub. L. 90–542 (16 11 U.S.C. 1281 et seq.)), the Farmland Protection Policy Act (7 U.S.C. 4201 et seq.), 12 the Coastal Zone Management Act (Pub. L. 92–583 (16 U.S.C. 1451 et seq.)), the 13 Wilderness Act (Pub. L. 88–577 (16 U.S.C. 1131 et seq.)), the Federal Land Policy 14 and Management Act (Pub. L. 94–579 (43 U.S.C. 1701 et seq.)), the National 15 Wildlife Refuge System Administration Act (Pub. L. 89–669 (16 U.S.C. 668dd– 16 68ee)), the National Wildlife Refuge System Improvement Act of 1997 (Pub. L. 17 105–57), National Fish and Wildlife Act of 1956 (Pub. L. 84–1024 (16 U.S.C. 18 742a, et seq.)), the Fish and Wildlife Coordination Act (Pub. L. 73–121 (16 U.S.C. 19 661 et seq.)), the Wild Horse and Burro Act (16 U.S.C. 1331 et seq.), an Act of Oct. 20 30, 2000, Pub. L. 106–398, § 1, 114 Stat. 1654 (enacting into law § 2848 of Part II 21 of Subtitle D of Title XXVIII of Division B of H.R. 5408 (114 Stat. 1654A–426), 22 as introduced on Oct. 6, 2000), the Administrative Procedure Act (5 U.S.C. 551 et 23 seq.), the Otay Mountain Wilderness Act of 1999 (Pub. L. 106–145), Sections 24 102(29) and 103 of Title I of the California Desert Protection Act (Pub. L. 103– 25 433), the Rivers and Harbors Act of 1899 (33 U.S.C. 403), the Eagle Protection Act 26 (16 U.S.C. 668 et seq.), the Native American Graves Protection and Repatriation 27 Act (25 U.S.C. 3001 et seq.), the American Indian Religious Freedom Act (42 28 U.S.C. 1996), and the Religious Freedom Restoration Act (42 U.S.C. 2000bb).” Id.
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1

77. The Calexico Waiver was published in the Federal Register on September

2 12, 2017. 82 Fed. Reg. 42,829. Relying on language that mimics the San Diego

3 Waiver, the summary of the Calexico Waiver states that “[t]he Secretary of

4 Homeland Security has determined, pursuant to law, that it is necessary to waive

5 certain laws, regulations and other legal requirements in order to ensure the

6 expeditious construction of barriers and roads in the vicinity of the international

7 land border of the United States near the city of Calexico in the state of California.”

8 Id.

9

78. The Calexico Waiver states that the El Centro Sector, which includes the

10 portion of the border near the City of Calexico, “remains an area of high illegal

11 entry for which there is an immediate need to construct border barriers and roads.”

12 The Calexico Waiver further states that “[t]o begin to meet the need for enhanced

13 border infrastructure in the El Centro Sector, DHS will take immediate action to

14 replace existing primary fencing” along a three-mile segment of the border

15 extending westward from the Calexico West Land Port of Entry.

16

79. The Calexico Waiver purports to waive “in their entirety, with respect to

17 the construction of roads and physical barriers . . . in the Project Area, the following

18 statutes, including all federal, state, or other laws, regulations and legal

19 requirements of, deriving from, or related to the subject of,” 27 federal statutes, the

20 majority of which were also included in the San Diego Waiver.

21 IV. THE FENCE REPLACEMENT AND PROTOTYPE CONSTRUCTION PROJECTS

22

DO NOT CONSTITUTE “ADDITIONAL BARRIERS,” WILL NOT BE INSTALLED IN “AREAS OF HIGH ILLEGAL ENTRY,” AND WILL NOT BE

INSTALLED IN AREAS WHERE ADDITIONAL FENCING WOULD BE MOST

23

PRACTICAL OR EFFECTIVE

24

80. The CBP divides the southwest border into nine sectors. The United

25 States Border Patrol (“USBP”), which is responsible for securing the border

26 between ports of entry, maintains data on the number of deportable migrants

27 apprehended crossing the border (between the ports of entry) in each of the nine

28 sectors. The apprehension data is regarded as the primary indicator of immigration
23
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1 enforcement and the number of apprehensions is widely understood to correlate

2 with the number of unauthorized entries.

3

81. President Trump’s assertion that there has been a “recent surge of illegal

4 immigration along the southwest border” is inaccurate. Apprehension data

5 published by the USBP indicates that the number of migrants apprehended by

6 USBP while crossing the southwest border without authorization has fallen sharply

7 since 2000, and particularly since 2006.1 In a September 2017 report published by

8 DHS and the Office of Immigration Statistics, DHS admits that the number of

9 southwest border apprehensions in 2016 was 75% lower than it was in 2000.2 The

10 report also estimates that there was a 91% reduction in the number of successful

11 illegal entries during that same time period. Id. According to DHS, “the southwest

12 land border is more difficult to illegally cross today than ever before.” Id. In fact,

13 DHS admits that illegal entries along the southwest border are at their lowest levels

14 “since 2000, and likely since the early 1970s.” Id.

15

82. In particular, from FY 2000 to FY 2016, there have been sharp declines

16 in the number of deportable migrants apprehended by the USBP in the San Diego,

17 El Centro and other sectors. The San Diego and El Centro sectors are located

18 within California’s geographic boundaries and the most western of the CBP’s nine

19 border sectors. The USBP’s apprehension data indicates there were 151,681

20 deportable migrants apprehended in the San Diego sector during FY 2000

21 compared with 31,891 apprehended during FY 2016, a reduction of 79%. In the El

22 Centro sector there were 238,126 deportable migrants apprehended in FY 2000

23 compared with 19,448 in FY 2016, a reduction of nearly 92%. Of the total number

24 of deportable migrants that were apprehended by the USBP along the southwest

25

1 Official website of the Department of Homeland Security, 26 https://www.cbp.gov/newsroom/media-resources/stats, U.S. Border Patrol Monthly

Apprehensions (FY 2000 – FY 2016) (last visited August 25, 2017).

27

2 https://www.dhs.gov/southwest-border-security (last visited September 18,

2017). 28

24

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1 border during FY 2016, less than 8% occurred in the San Diego Sector and less

2 than 5% occurred in the El Centro sector.3

3

83. According to the DHS’s website, the San Diego Sector encompasses

4 56,831 square miles including 931 miles of coastal border from the California

5 border with Mexico north to Oregon. The San Diego Sector’s primary operational

6 area of responsibility consists of 7,000 square miles, including 60 linear miles of

7 international boundary with Mexico and 114 coastal border miles along the Pacific

8 Ocean. USBP admits that there have been significant declines in the number of

9 undocumented entries in the San Diego Sector over the last three decades.4

10

84. On April 20, 2017, former Secretary Kelly stated that CBP has observed

11 sharp reductions in the number of unauthorized entries across the southwestern

12 border over the last several months, before the construction of any new border

13 barriers or the replacement of any existing barriers.

14

85. The San Diego Waiver describes a “Project Area” that includes an area

15 where multiple layers of primary, secondary and tertiary fencing already exist.

16 During a televised interview on April 20, 2017, former Secretary Kelly admitted

17 that in locations along the border where fencing already exists, that fencing is

18 “very, very effective” and “remarkably effective in keeping down the amount of

19 illegal movement across” the border.

20

86. In an infrastructure planning document prepared by CBP relating to the

21 Border Wall Project, dated March 27, 2017, CBP rated its nine sectors along the

22 southwest border according to infrastructure needs within each sector. CBP

23 admitted that there are no “high priority” areas for the construction of border

24 barriers in California, Arizona, or west Texas.

25

3 Official website of the Department of Homeland Security,

https://www.cbp.gov/border-security/along-us-borders/border-patrol-sectors/san-

26 diego-sector-california (last visited August 25, 2017).

4 Official website of the Department of Homeland Security,

27 https://www.cbp.gov/border-security/along-us-borders/border-patrol-sectors/san-

diego-sector-california (last visited August 25, 2017). 28

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1

87. The proposed San Diego Project, Calexico Project, and the larger Border

2 Wall Project include the replacement of existing primary and secondary fencing in

3 areas that are neither “areas of high illegal entry,” nor areas where additional

4 barriers will be most practical or effective.

5

88. There have been no amendments to Section 102 of IIRIRA since the

6 2008 Amendment was signed into law authorizing any legal waivers for additional

7 construction projects outside those projects specifically authorized and

8 contemplated when it was enacted. Congressional authority under Section 102

9 provided for a December 31, 2008 completion date for those specified projects

10 involving construction and reinforcement of fencing. The proposed Border Wall

11 Project, the San Diego Project and the Calexico Project include the replacement of

12 existing primary and secondary fencing in areas that were not identified as

13 “priority” areas before the 2008 completion date set forth in Section 102 of IIRIRA.

14 V. DEFENDANTS’ BORDER WALL PROJECT THREATENS THE STATE OF

CALIFORNIA’S ECONOMIC, PROCEDURAL AND SOVEREIGN INTERESTS,

15

AND WILL HARM THE STATE’S NATURAL RESOURCES

16

89. California owns real property and is financially responsible for the

17 management of environmentally sensitive lands that are adjacent to the US-Mexico

18 border, including areas where DHS seeks to replace primary and secondary fencing

19 as part of the Border Wall project. These properties include the 777-acre park

20 known as Border Field State Park, and the Tijuana River National Estuarine

21 Research Reserve which are located in the most southwestern portion of the

22 continental United States and home to more than two dozen endangered and/or

23 specially listed plant and animal species. These properties are located within

24 California’s coastal zone.

25

90. California incurs ongoing costs relating to the management and

26 maintenance of Border Field State Park and the Tijuana Reserve. These include

27 expenses relating to the management of sensitive wetland and upland habitats

28 within the reserve, the upkeep of roads, trails and recreational areas, and the
26
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1 removal of invasive species. California is also financially responsible for removal

2 and disposal of sediment from the “Goat Canyon Sediment Basins,” sediment

3 basins that were constructed in Border Field State Park to reduce the impacts of

4 sedimentation from tributaries to the Tijuana River and upland areas along the

5 border.

6

91. California will suffer direct injuries to its proprietary interests caused by

7 the proposed Border Wall’s negative impacts on biological resources within

8 California’s areas of responsibility, increases in invasive species, and/or increased

9 sedimentation.

10

92. Further, the Executive Order and the threat of the Border Wall has had

11 and will have a “chilling effect” on California tourism from Mexico. California

12 prides itself on its open and welcoming nature to citizens and non-citizens alike. It

13 is this nature that helps drive the State’s strong tourism economy, especially from

14 Mexico, our neighbor to the South. Tourism from Mexico and other countries is a

15 “lead economic driver” of the State. Mexicans made 7.9 million trips to California

16 in 2016 and in total visitors from Mexico spent more than 3 billion dollars in

17 California in 2015.5 An estimate from the global research firm Tourism Economics

18 estimates Mexican tourism will drop by 7% in 2017, with a continuing downward

19 trend in 2018.6

20

93. California also has concrete and particularized interests in protecting its

21 natural, recreational, agricultural, historical and cultural resources for the use,

22 enjoyment and benefit of California’s residents. Massachusetts v. EPA, 549 U.S.

23

24

5 Visitcalifornia.com, 25 http://industry.visitcalifornia.com/media/uploads/files/editor/California%20Internat

26

ional%20Visitor%20Volume%20and%20Spend_2015Final_12-6-16.pdf (last visited September 10, 2017); http://industry.visitcalifornia.com/Find-

Research/California-Statistics-Trends/ (last visited September 10, 2017).

27

6 Los Angeles Times, http://www.latimes.com/world/mexico-americas/la-fg-

mexico-us-travel-20170414-story.html 28

27

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1 497, 518 (2007); Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1178 (9th Cir.

2 2011).

3

94. The U.S.-Mexico border includes a 140-mile segment that also forms the

4 southern border of California. Within California, the border extends west from the

5 Colorado River at the State’s southeastern corner, across the low-lying

6 Colorado/Sonoran Desert and farmland in the Imperial Valley, over the rugged

7 Otay Mountains, and all the way to the sands of Imperial Beach and the Pacific

8 Ocean. These regions are home to several endangered and/or specially listed plant

9 and animal species.

10

95. Pursuant to the public trust doctrine and other state laws, California has a

11 duty to protect and preserve these natural and biological resources within its

12 boundaries.

13

96. Construction of the Border Wall will negatively impact sensitive

14 biological habitats near the border as well as endangered and/or specially listed

15 plant and animal species.

16

97. Construction of the Border Wall will involve the use of heavy machinery,

17 trucks and other equipment that will emit greenhouse gases. These emissions will

18 not be quantified or analyzed with respect to their impact on climate change.

19 Additionally, potential alternative border security projects will not be considered

20 and mitigation measures will not be addressed pursuant to the normal NEPA review

21 process. The Border Wall construction will also involve the discharge of pollutants

22 through storm water runoff and the discharge of waste water from the project to

23 state lands and state waters. The Border Wall construction and the Border Wall

24 itself will therefore have significant negative impacts on California lands, air and

25 water.

26

98. California will suffer direct injuries to its proprietary interests caused by

27 the proposed Border Wall’s negative impacts on biological resources within

28 California’s areas of responsibility, increases in invasive species, and/or increased
28
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1 sedimentation resulting from and/or caused by construction of the Border Wall.

2

99. The areas along California’s southern border contain recreational,

3 historical, and cultural resources enjoyed by California’s residents and visitors to

4 California. These resources include, but are not limited to beaches, hiking and

5 mountain-bike trails, off-road vehicle recreational areas, historical monuments

6 marking the Treaty of Guadalupe and cultural gathering places such as Friendship

7 Park. These resources attract visitors to California and help to stimulate California’s

8 economy.

9

100. The proposed Border Wall project will negatively impact the ability of

10 California residents and visitors to obtain access to and enjoy these recreational,

11 historical and cultural resources.

12

101. DHS has injured and continues to injure California by failing to disclose

13 and consider the direct, indirect, and cumulative environmental effects that the

14 Border Wall project will have on the resources of California.

15

102. In addition, California suffered and continues to suffer an injury to its

16 procedural rights under the deliberation-forcing requirements of NEPA, which

17 mandates that DHS evaluate various alternatives, the direct and indirect impacts

18 that each alternative will have on the surrounding environment, and the means by

19 which those impacts may be mitigated. California also suffered and continues to

20 suffer an injury to its procedural rights under the consistency requirements of the

21 CZMA. California’s procedural rights in this regard are related to the protection of

22 the concrete and particularized interests within its territory, as alleged above.

23 Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1178-1179 (9th Cir. 2011).

24

103. Defendants’ reliance on Section 102 of IIRIRA as authority for

25 construction of a Border Wall and issuance of a purported waiver of state laws

26 infringes upon California’s sovereign right “to create and enforce a legal code, both

27 civil and criminal.” Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 601 (1982);

28 Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253 (4th Cir. 2011).
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1

FIRST CLAIM FOR RELIEF

2

(For Declaratory and Injunctive Relief Against Each Defendant Based on

Defendants’ Failure to Comply with NEPA and the APA)

3

4

104. Plaintiffs hereby reallege and incorporate each and every paragraph

5 above.

6

105. NEPA compels federal agencies to evaluate and consider the direct,

7 indirect and cumulative effects that a proposed development project or program will

8 have on the environment by requiring the agency to prepare an environmental

9 impact statement (EIS) that analyzes a reasonable range of alternatives and

10 compares each alternative’s environmental impacts. 40 C.F.R. §§ 1502.16, 1508.7,

11 1508.8, l508.27(b)(7). The EIS must also include an analysis of the affected areas

12 and resources and the environmental consequences of the proposed action and the

13 alternatives. 40 C.F.R. §§ 1502.10 - 1502.19.

14

106. The preparation of an EIS not only forces the federal agency to consider

15 these impacts on the environment but it also guarantees that the relevant

16 information will be made public so that interested parties may play a role in both

17 the decision making process and the implantation of that decision. Robertson v.

18 Methow Valley Citizen Council, 490 U.S. 332, 348 (1989); 42 U.S.C. § 4332

19 (2)(C).

20

107. The agency must commence preparation of the EIS “as close as possible

21 to the time that the agency is developing or is presented with a proposal” so that the

22 environmental effects of each alternative can be evaluated in a meaningful way. 40

23 C.F.R. § 1502.23.

24

108. Defendants are in violation of NEPA because they failed to prepare an

25 EIS concerning a construction project that will span hundreds of miles in four states

26 and in areas that either contain or are adjacent to environmentally sensitive natural

27 resources.

28

109. California has concrete and particularized interests in the protection of its

30

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1 own proprietary interests near the border as well as the protection of natural,

2 historical, cultural, economic and recreational resources within its jurisdictional

3 boundaries. Defendants’ failure to comply with NEPA injures and denies

4 California’s procedural rights necessary to protect these interests.

5

110. The People seek a judicial declaration that Defendants violated NEPA

6 and further seeks an order enjoining DHS, requiring it to comply with NEPA before

7 taking any further action related to the construction of the Border Wall project,

8 including but not limited to the replacement of existing fences, the building of any

9 prototypes, and the grading and widening of dirt roads.

10

SECOND CLAIM FOR RELIEF

11

(For Declaratory Relief and Injunctive Relief as to Each Defendant Based on

Defendants’ Failure to Comply with the CZMA and the APA)

12

13

111. Plaintiffs hereby reallege and incorporate each and every paragraph

14 above.

15

112. The western portions of the San Diego Project fall within the coastal zone

16 and, pursuant to the CZMA, California Coastal Act and the CCMP, are subject to

17 the jurisdiction of the Commission.

18

113. The San Diego Project will affect, directly and indirectly, land and water

19 uses within the coastal zone. The San Diego Project will also affect, directly and

20 indirectly, natural resources within the coastal zone.

21

114. Under the CZMA, California Coastal Act and the CCMP, DHS is

22 required to provide the Commission with a consistency determination

23 demonstrating that their proposed Border Wall/fence replacement project will be

24 undertaken in a manner that is consistent to the maximum extent practicable with

25 the CCMP.

26

115. The failure of DHS to submit a timely consistency determination violates

27 the CZMA, the California Coastal Act and the CCMP.

28

116. DHS’ conduct caused and will continue to cause an injury to Plaintiffs’

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1 procedural rights under the CZMA.

2

117. Plaintiffs seek a judicial declaration that DHS violated the CZMA and for

3 an order enjoining DHS from taking any further action relating to the construction

4 of the Border Wall/fence replacement project until it complies the requirements of

5 the CZMA.

6

THIRD CLAIM FOR RELIEF

7

(For Declaratory Relief Against Each Defendant on the Grounds that the San

Diego Project, Calexico Project and Larger Border Wall Project Are Not

8

Authorized by Section 102 of IIRIRA (Ultra Vires Violations))

9

118. Plaintiffs hereby reallege and incorporate each and every paragraph

10 above.

11

119. The Executive Order and the San Diego and Calexico Waivers cite

12 Section 102 of IIRIRA as authority for construction of the Border Wall and the San

13 Diego and Calexico Projects. 8 U.S.C. § 1103 note.

14

120. Section 102 of IIRIRA requires the Secretary of Homeland Security to

15 take actions to install specified miles of “additional barriers and roads” or

16 “additional fencing” along United States’ southwest border. The 2008 Amendment

17 to Section 102 of IIRIRA reflects both Congress’ recognition that fences already

18 existed along portions of the border and its intent to better secure the border by

19 installing additional fencing in areas where none existed at the time. 8 U.S.C.

20 § 1103 note, subdiv. (a).

21

121. However, Section 102 of IIRIRA does not authorize or direct the

22 Secretary of Homeland Security, or any other person or entity, to replace already

23 existing fencing.

24

122. In addition, Section 102 of IIRIRA authorizes the Secretary of DHS to

25 take actions as may be necessary “to install additional physical barriers and roads”

26 in “areas of high illegal entry into the United States.” 8 U.S.C. § 1103 note, subdiv.

27 (a).

28

123. The proposed San Diego Project and the proposed Calexico Project are

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1 not in areas of high illegal entry and, therefore, are not authorized by Section 102 of

2 IIRIRA. In fact, multiple layers of fencing already exist in the San Diego Project

3 area and DHS has given no facts to suggest that rebuilding an existing fence will

4 further secure the border, especially as compared to areas without any fencing.

5 DHS has admitted the existing fences are effective in reducing unlawful entries into

6 the United States, and specifically within the San Diego Project area.

7

124. Additionally, the proposed San Diego Project and proposed Calexico

8 Project are not located in areas where the fencing would be most practical and

9 effective. DHS has made no findings that rebuilding an existing fence in the San

10 Diego area will reduce the number of illegal entries in the area. Further, DHS

11 admits that the most practical and effective areas to build fencing to further secure

12 the border, would be in areas where no fence exists and where the fence would have

13 a deterrent effect. The DHS has made no such findings here and, therefore, the

14 replacement of existing fencing and construction of prototypes are not authorized

15 by Section 102 of IIRIRA.

16

125. Further, the larger proposed Border Wall Project, as reflected in the

17 Executive Order, is not authorized by Section 102 of IIRIRA because it fails to

18 distinguish between different areas of the border and whether a particular area is an

19 area of high illegal entry into the United States.

20

126. Section 102 also does not authorize the construction of prototype barriers

21 that are to be used for the purpose of planning and not for the purpose of preventing

22 illegal entries. The prototypes fall outside the “additional physical barriers”

23 contemplated by Section 102 of IIRIRA.

24

127. Plaintiffs seek a judicial declaration that Defendants’ Border Wall

25 Project, which includes but is not limited to the construction of prototypes in San

26 Diego County, the construction of the San Diego Project and the Calexico Project,

27 the replacement of existing fences with alternative fencing, barriers, and/or walls,

28 the installation of barriers in areas that are not areas of high illegal entry, as well as
33
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1 the construction of over 1,000 miles of new barriers along the southern border that

2 were not identified or constructed prior to the deadline specified in the statute, are

3 not authorized under Section 102 of IIRIRA.

4

FOURTH CLAIM FOR RELIEF

5

(For Declaratory Relief Against Each Defendant on the Grounds that the

Secretary’s Waiver Authority Expired on December 31, 2008 (Ultra Vires

6

Violations Relating to The Waiver Provision))

7

128. Plaintiffs hereby reallege and incorporate each and every paragraph

8 above.

9

129. Section 102 required the DHS Secretary to construct reinforced fencing

10 along not less than 700 miles of the southwest border where fencing would be most

11 practical and effective.

12

130. Section 102 also required the DHS Secretary to identify the 370 miles or

13 other mileage as determined by the Secretary of “priority areas . . .where fencing

14 would be most practical and effective in deterring smugglers and aliens attempting

15 to gain illegal entry into the United States,” and to complete the construction of

16 fencing in those priority areas, by not later than December 31, 2008. 8 U.S.C. §

17 1103 note, subdiv. (b)(1)(B).

18

131. DHS identified “priority areas” pursuant to Section 102 before the

19 December 31, 2008 deadline and completed its construction of barriers in those

20 areas shortly after the deadline. Currently, there are 702 miles of border primary,

21 secondary, and tertiary fencing along the border. Thus, DHS satisfied the mileage

22 requirements set by Congress and it did so within, or shortly after, the time frame

23 set by Congress.

24

132. DHS did not include the project areas described in the San Diego or

25 Calexico Waivers as part of its obligation to identify and construct necessary

26 barriers in Priority Areas prior to the December 31, 2008, deadline.

27

133. The authority of the Secretary to identify “priority areas” for construction

28 and to expedite the construction of barriers or roads in these areas under Section
34
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1 102 expired on December 31, 2008.

2

134. Plaintiffs seek a judicial declaration that Defendants’ authority to

3 expedite the construction of barriers and roads through the use of Section 102’s

4 waiver provision expired on December 31, 2008, and, that the San Diego Waiver

5 and the Calexico Waiver are ineffective and invalid.

6

FIFTH CLAIM FOR RELIEF

7

(For Declaratory Relief Against Each Defendant on the Grounds that the San

Diego and Calexico Waivers Are Invalid Because Each Waiver Fails to Satisfy the

8

Requirements of Section 102 of IIRIRA)

9

135. Plaintiffs hereby reallege and incorporate each and every paragraph

10 above.

11

136. In order to exercise the waiver authority expressed at subsection (c) of

12 Section 102 of IIRIRA, the Secretary of DHS must satisfy the prerequisites for

13 expedited construction as set forth in the other provisions of Section 102.

14

137. Here, the San Diego Waiver is invalid because former Secretary Kelly

15 failed to present findings and cannot support findings sufficient to establish that the

16 fence replacement and the prototype construction projects described in the waiver

17 constitute “additional” barriers for the purpose of deterring illegal crossings, as

18 required by subdivision (a) of Section 102 of IIRIRA. Similarly, the Calexico

19 Waiver is invalid because Acting Secretary Duke failed to present findings and

20 cannot support findings sufficient to establish that the fence replacement project

21 described in the waiver constitutes “additional” barriers for the purpose of deterring

22 illegal crossings, as required by subdivision (a) of Section 102 of IIRIRA.

23

138. The San Diego and Calexico Waivers are also invalid because former

24 Secretary Kelly and Acting Secretary Duke failed to present findings and cannot

25 support findings sufficient to establish that the San Diego Project and Calexico

26 Project are being constructed in areas of “high illegal entry,” as required by

27 subdivision (a) of Section 102 of IIRIRA. While the San Diego Waiver states that

28 the San Diego sector is one of the busiest in the nation and refers to the number of
35
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1 apprehensions and drug arrests in the sector as a whole, reports published by DHS,

2 USBP and statements made by former Secretary Kelly, establish that the 15-mile

3 sector described in the San Diego Waiver is not an area of high illegal entry.

4 Similarly, reports published by DHS and the USBP indicate that the number of

5 apprehensions in the El Centro Sector is low when compared to other border patrol

6 sectors.

7

139. The San Diego and Calexico Waivers are also invalid because former

8 Secretary Kelly and Acting Secretary Duke, respectively, failed to present findings

9 and cannot support findings sufficient to establish that the project areas are located

10 in areas where the additional barriers will be the “most practical and effective,” as

11 required by subdivision (b) of Section 102 of IIRIRA.

12

140. Further, the San Diego Waiver is invalid because former Secretary Kelly

13 failed to describe the “various border infrastructure projects” that DHS intends to

14 install in the Project Area. In other words, DHS seeks to waive federal, state and

15 local laws for projects that it fails to describe and that it may seek to construct at

16 some time in the future, without any time limitation. As a result, Defendants are

17 denying Plaintiffs and other parties with a reasonable opportunity to assess whether

18 said undisclosed projects, that may be included within the San Diego Project area,

19 comply with the prerequisites of the statute and whether the projects will impact

20 their interests within the time frame established by subdivision (c) of Section 102 of

21 IIRIRA.

22

141. The San Diego and Calexico Waivers are also invalid because

23 Defendants seek to waive federal, state, and local laws for the continued and

24 indefinite “upkeep of physical barriers, roads, supporting elements, drainage,

25 erosion controls and safety features. . .” The San Diego and Calexico Waivers lack

26 any definition or time limitations with respect to any of these terms. As a result,

27 Defendants cannot satisfy their burden of establishing the waivers are needed for

28 the expedited construction of barriers or roads, or that, at the time the upkeep
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1 eventually occurs, the infrastructure is located in an area of high illegal entry.

2

142. The San Diego and Calexico Waivers are also invalid because the project

3 areas described in each waiver were not identified as “priority areas,” and the

4 projects were not constructed before December 31, 2008, the deadline to designate

5 and construct fencing in priority areas.

6

143. Plaintiffs seek a judicial declaration that the waiver of laws articulated in

7 the San Diego Waiver and the Calexico Waiver is ineffective and invalid.

8

SIXTH CLAIM FOR RELIEF

9 (The San Diego Waiver Violates Article III of the United States Constitution and

10

the Due Process Clause of the Fifth Amendment)

11

144. Plaintiffs hereby reallege and incorporate each and every paragraph

12 above.

13

145. Article III of the United States Constitution safeguards both the powers

14 of the judicial branch and litigants’ rights to have their claims decided by a

15 judiciary that is independent of pressures from the legislative and executive

16 branches. Commodity Futures Trading Commission v. Schor, 478 U.S. 833, 848

17 (1986). Article III also ensures the federal judiciary is empowered to resolve

18 claims brought by the states and controversies in which the United States is a party.

19 (Article III, Sec. 2.)

20

146. The Due Process Clause of the Fifth Amendment and principles of

21 fundamental fairness further guarantee that judicial proceedings will be conducted

22 in a manner that ensures parties reasonable notice of matters impacting their

23 interests and a meaningful opportunity to present grievances or defenses under the

24 procedures prescribed by law. Turner v. Rogers, 564 U.S. 431, 444-445 (2011); see

25 also, Mathews v. Eldridge, 424 U.S. 319, 348 (1976).

26

147. Subdivision (c) of Section 102 of IIRIRA provides that the district courts

27 of the United States shall have exclusive jurisdiction to hear all causes or claims

28 arising from any action or decision made by the Secretary of DHS pursuant to the
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1 waiver provision. Subdivision (c) further provides that any such cause or claim

2 shall be filed within 60 days of the Secretary’s decision under the waiver provision.

3 Under this process, the Secretary’s publication of the waiver in the Federal Register

4 is intended to place potential litigants on notice of the need to sue.

5

148. The Attorney General is the chief law officer of the State of California,

6 who by the California Constitution has the authority to file civil actions in order to

7 protect the People’s rights and interests, the environment, and the natural resources

8 of this state. Cal. Const., art V, § 13, Cal. Gov. Code §§ 12600-12612, 12511-

9 12512. The People have jurisdictional, procedural, economic, and sovereign

10 interests that are being impacted, and will continue to be impacted, by the San

11 Diego Waiver and San Diego Project.

12

149. The Commission is a state agency designated as the agency responsible

13 for implementing the CZMA within California’s coastal zone and developing state

14 programs designed to meet the goals of the CZMA. American Petroleum Institute v.

15 Knecht, 609 F.2d 1306 (9th Cir. 1979); Cal. Pub. Res. Code §§ 30008, 30330. The

16 San Diego Project is planned to take place, in part, within the coastal zone. Thus,

17 the Commission has jurisdictional and procedural interests that are being impacted,

18 and will continue to be impacted, by the San Diego Waiver and the San Diego

19 Project.

20

150. Plaintiffs have a right to sue under subdivision (c) of Section 102 of

21 IIRIRA and are entitled a judicial process that is fundamentally fair, which includes

22 reasonable notice of the projects for which federal and state laws are being waived

23 and a meaningful opportunity concerning whether those projects are authorized by

24 Section 102 of IIRIRA.

25

151. The San Diego Waiver states that DHS intends to install “various border

26 infrastructure projects” within the “Project Area,” a 15-mile segment of the border.

27 While the San Diego Waiver identifies two examples of infrastructure projects,

28 specifically the replacement of primary fencing and the construction of temporary
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1 barrier prototypes, DHS’ waiver is not limited to those examples. DHS seeks to

2 waive the application of more than 30 federal laws, as well as county and state laws,

3 in order to expedite the construction of “various border infrastructure projects”

4 without providing any description of all the projects DHS intends to construct. The

5 waiver fails to provide reasonable notice of the projects that DHS intends to

6 construct.

7

152. The San Diego Waiver also fails to provide reasonable notice of when

8 any of these undisclosed projects will be constructed. While the San Diego Waiver

9 includes the statement that the various projects will be “immediately implemented,”

10 DHS and Trump Administration officials have admitted that DHS does not have

11 sufficient funding in its current budget to construct all of the projects that it wants

12 to build, including the replacement of secondary fencing. The funding of this

13 secondary fencing and other undisclosed projects is dependent on the availability of

14 funding in future budgets. Thus, DHS is attempting to apply Section 102’s

15 expedited construction provision to projects that it cannot construct in an

16 expeditious manner, if ever.

17

153. The San Diego Waiver also fails to provide reasonable notice of where

18 the undisclosed infrastructure projects will be built. For example, although the San

19 Diego Waiver describes a 15-mile segment of the border as the “Project Area,” the

20 San Diego Waiver fails to state how far the project area will extend in a northerly

21 direction or where the undisclosed projects will be placed in relation to real

22 property owned by the State of California. The San Diego Waiver also leaves open

23 the possibility that DHS may, in the future, condemn property for the purpose of

24 constructing projects that are currently undisclosed.

25

154. The San Diego Waiver also attempts to waive laws for the continued

26 “upkeep of physical barriers, roads, supporting elements, drainage, erosion controls

27 and safety features . . .” The San Diego Waiver lacks any definition or time

28 limitations with respect to any of these terms. By applying the waiver provision to
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1 the continued and indefinite “upkeep” of undefined “supporting elements” and

2 “safety features,” the Secretary is attempting to extend his waiver authority to

3 matters beyond the expedited construction of border barriers and roads.

4

155. The vague and indefinite nature of the San Diego Waiver renders

5 Plaintiffs’ purported right to sue under subdivision (c) of Section 102 of IIRIRA an

6 illusory right that fails to satisfy the basic requirements of fundamental fairness. As

7 a direct result of the failure to describe the “various border infrastructure projects”

8 that will be covered by the waiver or where and when, with specificity, they will be

9 constructed, Defendants are denying Plaintiffs and others a reasonable notice and a

10 meaningful opportunity to formulate and prepare a claim with respect to

11 undisclosed projects within the 60-day limitations period set forth in subdivision (c)

12 of Section 102 of IIRIRA with respect to each undisclosed project.

13

156. Defendants’ conduct violates Plaintiffs’ due process rights and Plaintiffs’

14 rights under Article III of the United States Constitution.

15

157. Further, as a direct result of the failure to describe the “various border

16 infrastructure projects” that will be covered by the waiver or where and when, with

17 specificity, they will be constructed, Defendants are also interfering with the United

18 States District Court’s ability to exercise its authority under Article III of the

19 Constitution of the United States. The San Diego Waiver is so vague, ambiguous

20 and overly broad with respect to the undisclosed projects that DHS intends to build

21 and the continued upkeep of undefined project features, that it has the effect of

22 denying the District Court an opportunity to assess whether each individual project

23 satisfies the prerequisites for construction under Section 102 of IIRIRA, and

24 comports with the United States Constitution.

25

158. Plaintiffs seek a judicial declaration that the San Diego Waiver violates

26 Article III of the U.S. Constitution, the fundamental fairness doctrine at the heart of

27 the judicial process, and the Due Process Clause of the Fifth Amendment.

28
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1

SEVENTH CLAIM FOR RELIEF

2

(Violation of the Separation of Powers Doctrine)

3

159. Plaintiffs hereby reallege and incorporate each and every paragraph

4 above.

5

160. The Framers of the Constitution have determined that “within our

6 political scheme, the separation of governmental powers into three coordinate

7 Branches is essential to the preservation of liberty.” Mistretta v. U.S., 488 U.S.

8 361, 380-384, 109 S.Ct. 64 (1989).

9

161. As part of this fundamental doctrine, the Supreme Court “has invalidated

10 attempts by Congress to exercise the responsibilities of other Branches or to

11 reassign powers vested by the Constitution in either the Judicial Branch or the

12 Executive Branch.” Id. For example, in Clinton v. New York, 524 U.S. 417 (1998),

13 the Supreme Court overturned an act of Congress, ruling that Congress may not

14 vest its own legislative powers in the Executive Branch, even if Congress intended

15 such a result.

16

162. Section 102(c) vests unilateral power in the Secretary of the Department

17 of Homeland Security to waive the application of any law in areas along the

18 southwest border if he or she deems it necessary to expeditiously build a border

19 barrier. For example, Section 102 empowers the Secretary with discretion to

20 nullify the application of laws that are intended to protect the environment, prevent

21 unlawful discrimination, promote workplace safety and prevent corruption in the

22 award of government contracts. Under Section 102, the Secretary is authorized to

23 decide which laws to obey or disregard in planning and construction of

24 infrastructure projects along the southwest border without any advanced

25 designation of those particular laws by Congress.

26

163. Through this Act, Congress has vested its own legislative powers in the

27 Executive Branch in violation of the Separation of Powers doctrine of the U.S.

28 Constitution.
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1

164. The statute as written is facially invalid. This claim is asserted against

2 Defendant United States of America without regard to any action undertaken or

3 decision made by the Secretary of Homeland Security to invoke the

4 unconstitutional waiver provision.

5

165. In addition, the San Diego and Calexico Waivers violate the separation of

6 powers doctrine as applied in this case, because Congress has vested its own

7 legislative powers in the Executive Branch in violation of the Separation of Powers

8 doctrine of the U.S. Constitution to allow the waiver of more than 30 federal laws

9 by the Executive Branch. Congress must designate in advance each law it is

10 waiving through its legislation, and can then, and only then, provide the Executive

11 Branch discretion to waive those laws as it sees fit, thus implementing a legislative

12 action.

13

166. Further, the San Diego and Calexico Waivers violate the separation of

14 powers doctrine as applied in this case because Defendants are relying on the

15 waiver provision to divest Congress of its legislative powers 10 years after

16 Congress imposed a deadline to identify and expedite the construction of border

17 barriers in priority areas. The waiver provision is being applied in a manner that

18 divests Congress of its legislative powers, with respect to application of laws in the

19 border region, in perpetuity.

20

167. Finally, the San Diego and Calexico Waivers violate the separation of

21 powers doctrine as applied in this case because they provide for the vague and

22 indefinite, and potentially never-ending, divestment of legislative powers in

23 violation of the Separation of Powers Doctrine. For example, the San Diego

24 Waiver does not disclose all of the “various border infrastructure projects” to which

25 the waiver is being applied nor does it disclose when those undisclosed projects

26 will be constructed. The San Diego and Calexico Waivers also attempt to waive

27 laws for the continued “upkeep of physical barriers, roads, supporting elements,

28 drainage, erosion controls and safety features. . .” but lack any definition or time
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1 limitations with respect to these terms. By failing to describe the various projects

2 that DHS may build within a 15-mile project area, and by applying the waiver

3 provision to the continued and indefinite “upkeep” of undefined “supporting

4 elements” and “safety features,” Defendants are attempting to extend the waiver

5 authority to matters beyond the expedited construction of border barriers and roads.

6 Defendants are applying Section 102’s waiver provision in a manner that divests

7 Congress of its legislative powers along a 15-mile and 3-mile segments of the

8 border indefinitely.

9

168. Plaintiffs seek a judicial declaration that Section 102 of IIRIRA violates

10 the Separation of Powers doctrine of the U.S. Constitution because it improperly

11 vests legislative power in the Executive Branch.

12

EIGHTH CLAIM FOR RELIEF

13

(Violation of Article I, Section 1 of the United States Constitution)

14

169. Plaintiffs hereby reallege and incorporate each and every paragraph

15 above.

16

170. Article 1, Section 1 of the U.S. Constitution provides that “[a]ll

17 legislative powers herein granted shall be vested in a Congress of the United

18 States . . .”

19

171. This clause of the Constitution has been interpreted to mean that all

20 lawmaking functions have been vested in the Congress and cannot be delegated to

21 another branch. Loving v. U.S., 517 U.S. 748, 758 (1996).

22

172. Section 102(c) delegates to the Executive Branch, namely the Secretary

23 of the Department of Homeland Security, the power to waive the application of any

24 act of Congress along the entire southwest border. The only guidance Congress

25 provided to the Executive Branch was to say that the waiver should be exercised as

26 the Secretary “determines necessary to ensure expeditious construction of the

27 barriers and roads under this section.” Section 102(c) provides no other guidance

28 concerning which particular laws should be waived and which laws should be
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1 followed. Though the words “necessary” and “expeditious” may have held meaning

2 when enacted in 2008, they no longer do in light of the time elapsed since their

3 passage. Additionally, the 2008 Amendment imposed a deadline on DHS to

4 identify “priority areas” and expedite the construction of additional barriers in those

5 areas by not later than December 31, 2008. In light of these provisions and the

6 passage of time, the purpose of the waiver provision cannot be said to continue to

7 reflect Congressional intent nine years later.

8

173. Thus, Section 102(c) permits the Secretary to make legislative decisions

9 without an intelligible principle to guide it. This Act therefore violates Article I,

10 Section 1 of the U.S. Constitution and the non-delegation doctrine.

11

174. Additionally, Congress retained no checks on the actions of the

12 Executive Branch pursuant to Section 102(c), and removed any opportunity for

13 judicial review outside of Constitutional issues. This lack of meaningful

14 reviewability renders the delegation improper. Amalgamated Meat Cutters and

15 Butcher Workmen of North Am. v. Connally, 337 F. Supp. 737, 759 (D.D.C. 1971).

16

175. The statute as written is therefore facially invalid. This claim is asserted

17 against Defendant United States of America without regard to any action

18 undertaken or decision made by the Secretary of Homeland Security to invoke the

19 unconstitutional waiver provision.

20

176. Section 102(c) is also invalid as applied in this case, because, for the

21 reasons stated above, Congress cannot properly delegate to the Executive Branch

22 the ability to waive any and all federal laws with no meaningful opportunity for

23 review of that waiver. Thus, the former Secretary’s waiver of more than 30 federal

24 laws and the acting Secretary’s wavier of 27 federal laws violate Article I, Section 1

25 of the U.S. Constitution.

26

177. Further, the San Diego and Calexico Waivers violate the non-delegation

27 doctrine because Defendants are relying on the waiver provision to divest Congress

28 of its legislative powers 10 years after Congress imposed a deadline to identify and
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1 expedite the construction of border barriers in priority areas. The waiver provision

2 is being applied in a manner that divests Congress of its legislative powers, with

3 respect to application of laws in the border region, in perpetuity. Congress did not

4 delegate its functions with respect to application and/or waiver of laws to the

5 Secretary of Homeland Security in perpetuity.

6

178. Finally, the San Diego and Calexico Waivers violate the non-delegation

7 doctrine as applied in this case because the waiver provision is being applied in a

8 manner that extends the purported delegation of legislative authority, within the

9 described project areas, indefinitely. For example, the San Diego Waiver does not

10 disclose all of the “various border infrastructure projects” to which the Waiver is

11 being applied nor does it disclose when those undisclosed projects will be

12 constructed. The San Diego and Calexico Waivers also attempt to waive laws for

13 the continued “upkeep of physical barriers, roads, supporting elements, drainage,

14 erosion controls and safety features. . .” The San Diego and Calexico Waivers lack

15 any definition or time limitations with respect to any of these terms. By failing to

16 describe the various projects and applying the waiver provision to continued and

17 indefinite “upkeep” of undefined “supporting elements” and “safety features,”

18 Defendants are attempting to extend the waiver authority to matters beyond the

19 expedited construction of border barriers and roads. Congress did not delegate its

20 functions with respect to the application and/or waiver of laws to the Secretary of

21 Homeland Security without regard to the nature of the border infrastructure project

22 or whether it would be constructed in an expedited fashion.

23

179. Plaintiffs seek a judicial declaration that Section 102 of IIRIRA violates

24 Article 1, Section 1 of the U.S. Constitution and is an improper delegation of

25 legislative power to the Executive Branch.

26

27

28
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1

NINTH CLAIM FOR RELIEF

2

(Violation of Article I, Section 3 of the United States Constitution)

3

180. Plaintiffs hereby reallege and incorporate each and every paragraph

4 above.

5

181. Article I, Section 3 of the U.S. Constitution provides that “[j]udgment in

6 Cases of Impeachment shall not extend further than to removal from Office, and

7 disqualification to hold and enjoy any Office of honor, Trust or Profit under the

8 United States: but the Party convicted shall nevertheless be liable and subject to

9 Indictment, Trial, Judgment and Punishment, according to Law.”

10

182. The Supreme Court has interpreted Article I, Section 3 to mean there is

11 no immunity provided by the U.S. Constitution to criminal laws or criminal

12 prosecution and that no person is above the law. O’Shea v. Littleton, 414 U.S. 488,

13 503-504, 94 S.Ct. 669 (1974); Dennis v. Sparks, 449 U.S. 24, 31-32, 101 S.Ct. 183

14 (1980); U.S. v. Lee, (1882) 106 U.S. 196, 220, 1 S.Ct. 240 (1882).

15

183. Absent a clear immunity or waiver from a criminal law enacted by

16 Congress and signed by the President, the Executive Branch cannot violate or

17 nullify a criminal law.

18

184. Section 102(c) vests unilateral power in the Secretary of the Department

19 of Homeland Security to waive the application of any laws that he or she

20 determines is necessary to expeditiously build a border wall, including any criminal

21 laws, such as bribery, racketeering and other anti-corruption laws without a clear,

22 specific waiver of these statutes by an act of Congress that is signed by the

23 President.

24

185. This power to waive any criminal law to expeditiously build the Border

25 Wall, in the absence of an act of Congress that authorizes the waiver of those

26 criminal laws specifically, violates Article I, Section 3 of the U.S. Constitution.

27

186. The statute as written is therefore facially invalid. This claim is asserted

28 against Defendant United States of America without regard to any action
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1 undertaken or decision made by the Secretary of Homeland Security to invoke the

2 unconstitutional waiver provision.

3

187. Further, the San Diego and Calexico Waivers waive criminal laws,

4 including those under the federal Resource Conservation and Recovery Act (42

5 U.S.C. § 6921), the federal Clean Water Act (33 U.S.C. § 1311) and the

6 Endangered Species Act (15 U.S.C. § 1540). The former Secretary and Acting

7 Secretary have therefore waived criminal laws for the illegal disposal of hazardous

8 waste on land or in our nation’s waters as well as criminal laws concerning the

9 taking of endangered species. The waivers do not even provide the public with

10 information concerning which parts of the specified criminal laws may be

11 disregarded and why.

12

188. The statute is invalid as applied in this case because Congress did not

13 explicitly authorize the waiver of criminal laws described in the San Diego or

14 Calexico Waivers, nor did it immunize specific acts from criminal prosecution.

15

189. Plaintiffs seek a judicial declaration that Section 102 of IIRIRA violates

16 Article I, Section 3 of the U.S. Constitution because it improperly allows the

17 Executive Branch to violate or nullify criminal laws, including criminal hazardous

18 waste laws.

19

TENTH CLAIM FOR RELIEF

20

(Violation of Article I, Section 7 of the United States Constitution)

21

190. Plaintiffs hereby reallege and incorporate each and every paragraph

22 above.

23

191. Article I, Section 7 of the U.S. Constitution provides that “Every Bill

24 which shall have passed the House of Representatives and the Senate, shall, before

25 it becomes a Law, be presented to the President of the United States; if he approves

26 he shall sign it, but if not he shall return it.”

27

192. The Supreme Court has stated that this means that the Executive Branch

28 cannot void any law without Congress passing a law voiding the previous law and
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1 presenting it to the President for signature. Clinton v. City of New York, 524 U.S.

2 417 (1998).

3

193. Section 102(c) vests unilateral power in the Secretary of the Department

4 of Homeland Security to waive the application of any laws in areas along the border

5 for purposes of building the Border Wall without Congress passing a law to void

6 the specific laws at issue or limit their application, and presenting it to the President

7 in violation of Article I, Section 7 of the U.S. Constitution.

8

194. The statute as written is therefore facially invalid. This claim is asserted

9 against Defendant United States of America without regard to any action

10 undertaken or decision made by the Secretary of Homeland Security to invoke the

11 unconstitutional waiver provision.

12

195. The statute is also invalid as applied in this case. Here, former Secretary

13 Kelly unilaterally decided to waive more than 30 federal laws, and Acting Secretary

14 Duke unilaterally decided to waive 27 federal laws. In so doing, each unilaterally

15 chose which laws to waive and which laws to obey, without an act of Congress

16 specifying which particular law or set of laws could be waived and without the

17 presentation of said Congressional act to the President.

18

196. Plaintiffs seek a judicial declaration that Section 102 of IIRIRA violates

19 Article I, Section 7 of the U.S. Constitution because it allows the Executive Branch

20 to nullify the application of an act of Congress without Congress passing a law and

21 presenting it to the President.

22

ELEVENTH CLAIM FOR RELIEF

23

(Violation of the Tenth Amendment of the United States Constitution)

24

197. Plaintiffs hereby reallege and incorporate each and every paragraph

25 above.

26

198. The Tenth Amendment to the United States Constitution provides, “[t]he

27 powers not delegated to the United States by the Constitution, nor prohibited by it

28 to the States, are reserved to the States respectively, or to the people.”
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1

199. States, therefore, have “the power to create and enforce a legal code, both

2 civil and criminal.” Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592 (1982);

3 Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253 (4th Cir. 2011). Congress may

4 not infringe on the State of California’s sovereign authority to enforce its own laws.

5 “[W]hen a federal law interferes with a state's exercise of its sovereign ‘power to

6 create and enforce a legal code’ [ ] it inflict[s] on the state the requisite injury-in-

7 fact.” Cty. of Santa Clara v. Trump, No. 17-CV-00485-WHO, 2017 WL 1459081,

8 at *17 (N.D. Cal. Apr. 25, 2017), reconsideration denied, No. 17-CV-00485-WHO,

9 2017 WL 3086064 (N.D. Cal. July 20, 2017), quoting Ohio ex rel. Celebrezze v.

10 U.S. Dep't of Transp., 766 F.2d 228, 233 (6th Cir. 1985).

11

200. On its face, Section 102(c) vests the Secretary of the Department of

12 Homeland Security with the power to waive “all legal requirements” in order to

13 expeditiously build the border wall. If this phrase is interpreted to allow the

14 Secretary to waive the application of state and local laws, it would include the

15 power to waive state laws that are intended to ensure work-place safety, anti-

16 harassment and discrimination laws, state wage and hour laws, anti-corruption laws,

17 laws relating to public safety, or any other state law, including criminal

18 enforcement provisions of state law.

19

201. Although Congress may preempt state and local laws in a particular

20 legislative field, Congress does not have the power to simply waive all state and

21 local laws and vest in the Executive Branch the power to waive all such laws.

22

202. Section 102(c), by creating such authority and vesting it in the Secretary

23 of the Department of Homeland Security, violates the Tenth Amendment of the

24 U.S. Constitution.

25

203. The statute as written is therefore facially invalid and this claim is

26 asserted against Defendant United States of America without regard to any action

27 undertaken or decision made by the Secretary of Homeland Security to invoke the

28 unconstitutional waiver provision.

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1

204. The statute is also invalid as applied in this matter. In their attempts to

2 exercise Section 102’s waiver provision, former Secretary Kelly and Acting

3 Secretary Duke issued waivers that purport to waive federal laws and numerous

4 California laws that are related to the same subjects, including Porter-Cologne

5 Water Quality Control Act (Cal. Water Code, §§ 13000, et seq.), California

6 Endangered Species Act (Cal. Fish & Game Code, §§ 2050-2115.5), California

7 State Historical Resources Act (Cal. Pub. Res. Code, §§ 5020-5029), California

8 Coastal Act (Cal. Pub. Res. Code, §§ 30000-30900), California Fish and Game

9 Laws (Cal. Fish & Game Code, §§ 1801 and 4181) and California’s public nuisance

10 laws (Cal. Gov. Code, §§ 12600 et seq.; Cal. Civ. Code, § 3480; Cal. Pen. Code, §

11 370.). These state laws do not conflict with any federal law and Congress has not

12 explicitly stated an intent to preempt state laws in these areas.

13

205. Further, as construed by the Secretaries of DHS, the authority to waive

14 California laws is indefinite in duration and unlimited, subject to the barest of

15 findings that a border crossing is an area of high illegal entry, with no standards or

16 criteria for making this determination. The former Secretary and Acting Secretary

17 have attempted to apply Section 102’s waiver provision over nine years after its last

18 amendment in which Congress referenced projects limited to 2008.

19

206. Additionally, the San Diego Waiver attempts to waive state laws with

20 respect to the construction of “various border infrastructure projects” without

21 defining what those projects will be or when they will be constructed. As noted

22 below, this appears to include projects for which funding is not currently available.

23

207. The San Diego and Calexico Waivers also attempt to waive state laws

24 for the continued “upkeep of physical barriers, roads, supporting elements,

25 drainage, erosion controls and safety features. . .” The waivers lack any definition

26 or time limitations with respect to any of these terms. By failing to incorporate

27 meaningful definitions, the scope of the intrusion by Defendants into areas of

28 historic state regulation and governance is potentially vast, extending beyond just
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1 the expedited construction of border barriers and roads.

2

208. DHS is applying Section 102 in a manner that would grant them an

3 indefinite and open-ended waiver of state laws in violation of the 10th Amendment.

4

209. Plaintiffs seek a judicial declaration that Section 102 of IIRIRA violates

5 the Tenth Amendment of the U.S. Constitution by vesting in the Executive Branch

6 the power to waive state and local laws, including state criminal law.

7

PRAYER FOR RELIEF

8

WHEREFORE, Plaintiffs request the Court to enter a judgment:

9

1. Declaring that DHS violated NEPA and the APA, and continues to

10 violate NEPA and the APA, by failing to conduct NEPA review prior to engaging

11 in planning and construction activities concerning the Border Wall and the San

12 Diego and Calexico Projects.

13

2. Declaring that DHS violated the CZMA and the APA, and continues to

14 violate the CZMA and the APA, by failing to provide the Commission with a

15 consistency determination demonstrating that the San Diego Project will be

16 undertaken in a manner that is consistent to the maximum extent practicable with

17 the CCMP.

18

3. Declaring that Section 102 of IIRIRA does not authorize the replacement

19 of existing fencing or barriers and that the San Diego and Calexico Waivers are

20 therefore inapplicable and invalid with respect to the replacement of existing

21 fencing or barriers.

22

4. Declaring that Section 102 of IIRIRA does not authorize the replacement

23 of existing fencing or the construction of new barriers areas within the project areas

24 described in the San Diego and Calexico Waivers because the project areas are not

25 located in areas “of high illegal entry” and that the Waivers are inapplicable and

26 invalid.

27

5. Declaring that Section 102 of IIRIRA does not authorize the construction

28 of prototype fences, barriers or walls for the purpose of planning and that the San
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1 Diego Waiver is inapplicable and invalid with respect to the prototype construction

2 described in that waiver.

3

6. Declaring that the San Diego and Calexico Waivers are ineffective and

4 invalid because the authority to waive laws under Section 102 of IIRIRA expired on

5 December 31, 2008.

6

7. Declaring that the San Diego and Calexico Waivers are ineffective and

7 invalid because the waivers failed to satisfy the requirements of Section 102 of

8 IIRIRA and Defendants cannot meet their burden of making and supporting

9 findings to meet Section 102’s requirements.

10

8. Declaring that, as applied in this matter with respect to the San Diego

11 Waiver, subsection (c) of Section 102 of the IIRIRA violates Article III of the

12 United States Constitution and the Due Process Clause of the Fifth Amendment.

13

9. Declaring that, on its face and as applied in this matter with respect to the

14 Border Wall Project, the San Diego Project and the Calexico Project, subsection (c)

15 of Section 102 of the IIRIRA violates the Separation of Powers doctrine of the

16 United States Constitution.

17

10. Declaring that, on its face and as applied in this matter with respect to the

18 Border Wall Project, the San Diego Project, and the Calexico Project, subsection (c)

19 of Section 102 of the IIRIRA violates Article I, Section 1 of the United States

20 Constitution.

21

11. Declaring that, on its face and as applied in this matter with respect to the

22 Border Wall Project, the San Diego Project and the Calexico Project, subsection (c)

23 of Section 102 of the IIRIRA violates Article I, Section 3 of the United States

24 Constitution.

25

12. Declaring that, on its face and as applied in this matter with respect to the

26 Border Wall Project, the San Diego Project, and the Calexico Project, subsection (c)

27 of Section 102 of the IIRIRA violates Article I, Section 7 of the United States

28 Constitution.

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1

13. Declaring that, on its face and as applied in this matter with respect to the

2 Border Wall Project, the San Diego Project and the Calexico Project, subsection (c)

3 of Section 102 of the IIRIRA violates Tenth Amendment of the United States

4 Constitution.

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14. Granting injunctive relief to Plaintiffs and enjoining Defendants from

6 undertaking any activities concerning construction of the Border Wall until DHS

7 demonstrates compliance with NEPA and the APA.

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15. Granting injunctive relief to Plaintiffs and enjoining Defendants from

9 undertaking any activities concerning construction of the Border Wall until DHS

10 demonstrates compliance with the CZMA and the APA.

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16. Granting injunctive relief to the Plaintiffs and enjoining the Secretary of

12 DHS from waiving any laws for the purpose of expeditiously building the Trump

13 Administration’s Border Wall, the San Diego Project, and the Calexico Project.

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17. Ordering such other relief as the Court deems just and proper.

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16 Dated: September 20, 2017

Respectfully submitted,

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XAVIER BECERRA

Attorney General of California

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ROBERT W. BYRNE

Senior Assistant Attorney General

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TIMOTHY R. PATTERSON

Supervising Deputy Attorney General 20

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s/Michael P. Cayaban

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MICHAEL P. CAYABAN

Supervising Deputy Attorney General

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Attorneys for the People of the State of

California, by and through Xavier

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Becerra, Attorney General, and the

California Coastal Commission 25

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Complaint for Declaratory and Injunctive Relief