Ctr. for Biological Diversity v. Wolf, No. CIV 17-163-TUC-CKJ

• Decision Date: 16 March 2020
• Docket Number: No. CIV 17-163-TUC-CKJ
• Citation: 447 F.Supp.3d 965
• Parties: CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. Chad WOLF, et al., Defendants.
• Court: U.S. District Court — District of Arizona

447 F.Supp.3d 965

CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs,

v.Chad WOLF, et al., Defendants.

No. CIV 17-163-TUC-CKJ

United States District Court, D. Arizona.

Signed March 16, 2020

Filed March 17, 2020

Allison N. Melton, Pro Hac Vice, Center for Biological Diversity, Crested Butte, CO, Anchun Jean Su, Pro Hac Vice, Brendan Ridgely Cummings, Pro Hac Vice, Center for Biological Diversity, Oakland, CA, Brian Segee, Pro Hac Vice, Center for Biological Diversity, Los Angeles, CA, for Plaintiffs

Rebecca Jaffe, Tyler McVeigh Alexander, Clifford Eugene Stevens, Jr., US Dept. of Justice-ENRD, Natural Resources Section, Washington, DC, Michael Alexander Ambri, US Attorneys Office, Tucson, AZ, for Defendants

ORDER

Cindy K. Jorgenson, United States District Judge

Pending before the Court is the Motion to Complete the Administrative Record; Motion to Supplement the Administrative Record with Extra-Record Evidence; and Request for Judicial Notice ("Motion") (Doc. 50) filed by Plaintiffs Center for Biological Diversity and Raúl Grijalva (collectively, Plaintiffs or "CBD"). Defendants Chad Wolf;¹ the U.S. Department of Homeland Security; Mark A. Morgan;² and the U.S. Customs and Border Protection (collectively, Defendants or "the government") have filed a response (Doc. 54) and CBD has filed a reply (Doc. 57).

I. Factual and Procedural History

In approximately 1989, the Department of Defense ("DoD") created Joint Task Force Six ("JTF-6"), which "provid[ed] operational, engineering, and general support" to law enforcement agencies that operate at United States borders. 59 Fed. Reg. 26,322 -02 (May 19, 1994); Pub. L. No. 101–510.³ As stated by the government:

To address the potential impacts of JTF-6 actions and activities over a five-year period, the Department of Justice (then home of the Immigration and Naturalization Service ("INS") and United States Border Patrol ("USBP")) and DoD jointly prepared a 1994 Programmatic Environmental Impact Statement ("1994 PEIS"). [First Declaration of Jennifer DeHart Hass, DHS Environmental Planning and Historic Preservation Program Manager, ECF No. 49 ("First Hass Declaration") ] ¶ 19. In 2001, DoD and INS updated the 1994 PEIS by completing a Supplemental Programmatic Environmental Impact Statement ("2001 SPEIS") focusing on the support activities JTF-6 would provide to USBP. 1st Hass Decl. ¶ 25.

Response (Doc. 54, p. 2). The 1994 PEIS and 2001 SPEIS analyzed the environmental impact of INS' "strategy for enforcement activities within a 50-mile corridor along the U.S./Mexico border," in order to allow INS to "gain and maintain control of the southwest border area" through "the prevention, deterrence, and detection of illegal activities." First Amended Complaint for Declaratory and Injunctive Relief ("FAC") (Doc. 14, ¶ 6).

Plaintiffs allege that, since the approval of the 2001 SPEIS, significant changes have occurred as to southern border enforcement including that the Department of Homeland Security ("DHS") was created and took over the border enforcement responsibilities of the former Immigration and Naturalization Service ("INS"); DHS was provided with significantly increased appropriations and aggressive mandates to secure the southern border; DHS through Customs and Border Protection ("CBP") has deployed thousands of new enforcement agents, increased off-road vehicle patrols, constructed or reconstructed thousands of miles of roads, erected hundreds of miles of border walls and fencing, and installed stadium lighting, radio towers, and remote sensors. Plaintiffs also allege this has resulted in environmental impacts far beyond those projected and analyzed in the 1994 PEIS and 2001 SPEIS. Plaintiffs further allege "significant new circumstances or information" have arisen that are relevant to the environmental impacts of the action.

On January 25, 2017, President Donald J. Trump issued an Executive Order on "Border Security and Immigration Enforcement Improvements" ("Border Security E.O."), which inter alia announced the creation of a "secure, contiguous, and impassable physical barrier" along the entirety of the nearly 2,000 mile long U.S.-Mexico border, in order "to prevent illegal immigration, drug and human trafficking, and acts of terrorism." DHS Secretary John Kelly issued a February 17, 2017 memorandum directing specific actions to implement the Border Security E.O. and on March 17, 2017, DHS issued two Requests for Proposals ("RFP") – one for a "Solid Concrete Border Wall Prototype" and the second for "Other Border Wall Prototype."

In their FAC, Plaintiffs allege that, despite the passage of time and significant changed circumstances, DHS has failed to prepare a new supplement to its programmatic analysis, or to prepare a new programmatic analysis, in violation of the National Environmental Policy Act ("NEPA"). Defendants filed an Answer and submitted "an administrative record documenting CBP's project-and site-specific approach to NEPA and ESA compliance on the southern border." Response (Doc. 54, p. 3).

In their Motion, Plaintiffs request the Court to order Defendants to complete the administrative record, issue an Order allowing Plaintiffs to further supplement the lodged administrative record with limited and specifically identified extra-record materials, and take judicial notice of Federal Register documents. Briefly, Plaintiffs assert these requests should be granted because Defendants insistence that a southern border enforcement program does not exist does not negate or narrow Defendants' duty to prepare a complete administrative record by which the Court may adjudicate Plaintiffs' NEPA and ESA claims. The government asserts, however, that it does not have a single enforcement program for the entire southern border and Plaintiff's requests should be denied because they are attempting to present documents to support their impermissible programmatic challenge.

Further, Defendants assert some of the documents do not exist, as summarized in the First Hass Decl. and the Second Declaration of Jennifer DeHart Hass, DHS Environmental Planning and Historic Preservation Program Manager (Doc. 54-3) ("Second Hass Decl."). The Court accepts the statements of Hass and finds the documents do not exist.

II. Judicial Review Under the Administrative Procedures Act ("APA"), NEPA, and ESA

The parties agree NEPA claims are reviewed under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 706 et seq. However, they disagree as to whether ESA claims are reviewed under the APA. Plaintiffs assert ESA citizen suits are not limited to an administrative record because the APA does not govern where there is an other adequate remedy in court, 5 U.S.C. § 704, and the ESA provides an independently authorized private right of action. See e.g. W. Watersheds Project v. Kraayenbrink , 632 F.3d 472, 497 (9th Cir. 2011) (because the ESA provides a citizen suit remedy, an other adequate remedy in court, the APA does not apply in such actions); see also Washington Toxics Coal. v. Envtl. Prot. Agency , 413 F.3d 1024, 1034 (9th Cir. 2005) (the APA does not govern plaintiffs' claims because ESA independently authorizes a private right of action). Defendants disagree, however, and argue:

The notion that Kraayenbrink silently overruled decades of Ninth Circuit precedent and contravened the Supreme Court—all without any discussion whatsoever—is not possible. In Kraayenbrink , the Ninth Circuit merely "ratified the district courts' use of discretion ... to supplement the record" under the pre-existing narrow exceptions to record review, a "far cry" from authorizing district courts to "engage in de novo review," or rendering "the APA's standards an inapt guidelines." Sierra Club v. McLerran , No. C11-1759RSL, 2012 WL 5449681, at *2 (W.D. Wash. Nov. 6, 2012) ; see also WildEarth Guardians v. U.S. Forest Serv. , No. CV-10-00385-TUC-DCB, 2011 WL 11717437, at *1 (D. Ariz. Apr. 26, 2011) (denying discovery and supplementation based on claimed "new standard announced in Kraayenbrink .")

Response (Doc. 54, p. 16).

As summarized by another district court, Kraayenbrink has not been consistently applied:

Indeed, district courts in this circuit appear somewhat split as to the broader implications of Washington Toxics and Kraayenbrink . See WildEarth Guardians v. U.S. Forest Serv. , No. CV-10-00385-TUC-DCB, 2011 WL 11717437, at *1 *2 (D. Ariz. Apr. 22, 2011) (noting Kraayenbrink "represents a sharp departure from the traditional rule of limiting the scope of review of agency action to the agency record," but acknowledging that "claims brought under the citizen suit provision of the ESA may not be subject to the same rules as those brought under the APA"); Sierra Club v. McLerran , No. C11-1759RSL, 2012 WL 5449681, at *2 (W.D. Wash. Nov. 6, 2012) (finding the Ninth Circuit merely "ratified the district courts' use of discretion ... to supplement the record" in Washington Toxics and Kraayenbrink , and noting "it is a far cry to state that those cases require a district court to engage in de novo review of the record, or that the APA's standards are inapt guidelines"); All. for Wild Rockies v. Kruger , 950 F. Supp. 2d 1172, 1177 (D. Mont. 2013) (" Kraayenbrink leaves us uncertain whether the panel discarded the APA record review rule entirely or simply found that the extra-record documents presented to the district court in that case fit within one of the four standard exceptions outlined [by Lands Council].

The better view, in the opinion of this Court, is that the traditional four exceptions still apply to plaintiffs' requests for supplementation of the administrative record for ESA claims, but the narrowness of the construction and application of these exceptions ... should be relaxed for such claims"); Ecological Rights Found. v. Fed. Emergency Mgmt. Agency , 384 F. Supp. 3d 1111, 1119 (N.D. Cal 2019) (noting "[a] few courts appear on occasion to have afforded a broader consideration of extra-record materials in ESA disputes,"

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