In re Border Infrastructure Envtl. Litig., Case No.: 17cv1215–GPC(WVG)

Decision Date27 February 2018
Docket NumberCase No.: 17cv1215–GPC(WVG),C/w : 17cv1873–GPC(WVG), 17cv1911–GPC(WVG)
Citation284 F.Supp.3d 1092
CourtU.S. District Court — Southern District of California
Parties IN RE: BORDER INFRASTRUCTURE ENVIRONMENTAL LITIGATION

ORDER DENYING PLAINTIFFS' MOTIONS FOR SUMMARY JUDGMENT AND GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT [Dkt. Nos. 18, 28, 29, 30, 35.]

Hon. Gonzalo P. Curiel, United States District Judge

These three consolidated cases involve challenges to Waiver Determinations made by former Secretaries of the Department of Homeland Security on August 2, 2017 and September 12, 2017 pursuant to section 102 of IIRIRA1 waiving the legal requirements of NEPA,2 the ESA,3 the CZMA4 and more than 30 additional laws not at issue in these cases. The Waiver Determinations concern two types of border wall construction projects in San Diego County: (1) the "border wall prototype project"; and (2) the replacement of fifteen miles of existing border fence in the San Diego Sector and three miles of existing border fence in the El Centro Sector ("border fence replacement projects"). The Plaintiffs allege variously that (1) the Waivers are ultra vires acts that exceed the authority delegated by Congress; and (2) the Waivers are unconstitutional acts under a variety of legal doctrines.

The Court is aware that the subject of these lawsuits, border barriers, is currently the subject of heated political debate in and between the United States and the Republic of Mexico as to the need, efficacy and the source of funding for such barriers. In its review of this case, the Court cannot and does not consider whether underlying decisions to construct the border barriers are politically wise or prudent. As fellow Indiana native Chief Justice Roberts observed in addressing a case surrounded by political disagreement: "Court[s] are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation's elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices."

Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 538, 132 S.Ct. 2566, 183 L.Ed.2d 450 (2012). Here, the Court will focus on whether Congress has the power under the Constitution to enact the challenged law and whether the Secretary of Department of Homeland Security properly exercised the powers delegated by Congress.

Before the Court are three cross-motions for summary judgment. A hearing was held on February 9, 2018. (Dkt. No. 44.) Michael Cayaban, Esq. and Noah Golden Frasner, Esq. appeared on behalf of Plaintiffs People of the State of California and the California Coastal Commission; Brian Segee, Esq. and Brendan Cummings, Esq. appeared on behalf of Plaintiff Center for Biological Diversity; and Sarah Hanneken, Esq. appeared on behalf of the Plaintiffs Defenders of Wildlife, Sierra Club, and Animal Legal Defense Fund. (Id. ) Galen Thorp, Esq. appeared on behalf of Defendants. (Id. ) The parties filed supplemental briefs on February 13, 2018. (Dkt. Nos. 46, 47, 48, 49.)

Based on the parties' briefs, the supporting documentation, the applicable law, the arguments made at the hearing and the supplemental briefing, the Court DENIES Plaintiffs' motions for summary judgment and GRANTS Defendants' motions for summary judgment.

I. BACKGROUND
A. Section 102 of Illegal Immigration Reform and Immigrant Responsibility Act

In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), which, pursuant to Section 102(a), required the Attorney General to "take such actions as may be necessary to install additional physical barriers and roads (including the removal of obstacles to detection of illegal entrants) in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States." Pub. L. No. 104–208, Div. C., Title I, § 102(a), 110 Stat. 3009, 3009–554 (1996), codified at 8 U.S.C. § 1103 note. IIRIRA Section 102(c), as originally enacted, authorized the Attorney General to waive the Endangered Species Act of 1973 ("ESA") and the National Environmental Policy Act of 1969 ("NEPA") when he determined such waiver "was necessary to ensure expeditious construction of the barriers and roads under this section." Id. § 102(c). The Homeland Security Act of 2002 abolished the Immigration and Naturalization Service and transferred responsibility for the construction of border barriers from the Attorney General to the Department of Homeland Security ("DHS"). Pub. L. No. 107–296, 116 Stat. 2135 (2002). In 2005, the REAL ID Act, Pub. L. No. 109–13, Div. B, Title I, § 102, 119 Stat. 231, 302, 306 (May 11, 2005), amended the waiver authority of section 102(c) expanding the Secretary of DHS' authority to waive "all legal requirements" that the Secretary, in his or her own discretion, determines "necessary to ensure expeditious construction of the barriers and roads under this section." Id. It also added a judicial review provision that limited the district court's jurisdiction to hear any causes or action concerning the Secretary's waiver authority to solely constitutional claims. Id. § 102(c)(2)(A). Further, the provision foreclosed appellate court review and directed any review of the district court's decision be raised by petition for a writ of certiorari with the Supreme Court of the United States. Id. § 102(c)(2)(C).

Section 102 consists of three sections: (1) section 102(a) describes the general purpose of the statute; (2) section 102(b) specifies Congress' mandate for specific border barrier construction; and (3) section 102(c) grants the Secretary the discretion to waive "all legal requirements" he or she "determines necessary to ensure expeditious construction of the barriers and roads" and provides for limited judicial review of the Secretary's waiver decision to solely constitutional violations. See 8 U.S.C. § 1103 note.

Since its enactment in 1996, IIRIRA section 102 has been amended three times although the general purpose of the statute under section 102(a) has remained the same. When IIRIRA was first enacted in 1996, section 102(b) mandated "construction along the 14 miles of the international land border of the United States, starting at the Pacific Ocean and extending eastward of second and third fences, in addition to the existing reinforced fence, and for roads between the fences." 8 U.S.C. § 1103(b) (1996).

The Secure Fence Act of 2006, Pub. L. No. 109–367, § 3, 120 Stat. 2638 (Oct. 26, 2006), amended the specific mandates of section 102(b). It directed the DHS to "provide for at least 2 layers of reinforced fencing, [and] the installation of additional physical barriers, roads, lighting, cameras, and sensors" in five specific segments along the U.S.–Mexico border encompassing the states of California, Arizona, New Mexico and Texas. Id. It also set dates of completion for two segments to be completed by certain dates in 2008. Id.

Fourteen months later, the Consolidated Appropriations Act of 2008, Pub. L. No. 110–161, Div. E, Title V § 564, 121 Stat. 2090 (Dec. 26, 2007), again amended the mandates of section 102(b) and they currently remain the operative version of the statute.

In its current version, section 102, codified at 8 U.S.C. § 1103 note, provides,

(a) In general. —The Secretary of Homeland Security shall take such actions as may be necessary to install additional physical barriers and roads (including the removal of obstacles to detection of illegal entrants) in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States.
(b) Construction of fencing and road improvements along the border.—
(1) Additional fencing along southwest border.—
(A) Reinforced fencing. —In carrying out subsection (a) [of this note], the Secretary of Homeland Security shall construct reinforced fencing along not less than 700 miles of the southwest border where fencing would be most practical and effective and provide for the installation of additional physical barriers, roads, lighting, cameras, and sensors to gain operational control of the southwest border.
(B) Priority areas. —In carrying out this section [ Pub. L. 104–208, Div. C, Title I, § 102, Sept. 30, 1996, 110 Stat. 3009–554, which amended this section and enacted this note], the Secretary of Homeland Security shall—
(i) identify the 370 miles, or other mileage determined by the Secretary, whose authority to determine other mileage shall expire on December 31, 2008, along the southwest border where fencing would be most practical and effective in deterring smugglers and aliens attempting to gain illegal entry into the United States; and
(ii) not later than December 31, 2008, complete construction of reinforced fencing along the miles identified under clause (i).
(C) Consultation.
(i) In general. —In carrying out this section, the Secretary of Homeland Security shall consult with the Secretary of the Interior, the Secretary of Agriculture, States, local governments, Indian tribes, and property owners in the United States to minimize the impact on the environment, culture, commerce, and quality of life for the communities and residents located near the sites at which such fencing is to be constructed.
(ii) Savings provision. —Nothing in this subparagraph may be construed to—
(I) create or negate any right of action for a State, local government, or other person or entity affected by this subsection; or
(II) affect the eminent domain laws of the United States or of any State.
(D) Limitation on requirements. —Notwithstanding subparagraph (A), nothing in this paragraph shall require the Secretary of Homeland Security to install fencing, physical barriers, roads, lighting, cameras, and sensors in a particular location along an international border of the United States, if the Secretary determines
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