On Sept. 12, 2017, the Sierra Club sued the U.S. Department of Homeland Security (DHS) and its component, U.S. Customs and Border Protection (CBP), under the Freedom of Information Act (FOIA). The case was filed in the U.S. District Court for the Northern District of California.

In its complaint, plaintiff described itself as "the nation’s oldest grassroots environmental organization, [which] . . . has long advocated to protect and preserve the cultures of the borderland communities, as well as the region’s land, wildlife, and environment." Plaintiff feared potential environmental damage that could result from President Trump's Executive Order (EO) No. 13767, authorizing expansion or replacement of portions of the U.S.-Mexico border wall.

The complaint alleged that plaintiff had submitted several unfulfilled FOIA requests to defendant agencies, seeking information about the environmental impacts of border wall proposals. First, in 2013, plaintiff had asked for records since 2010 about border wall construction in a wildlife refuge and flood plains in parts of Texas. Although DHS released a few highly-redacted documents and promised to follow with more information, as of 2017 DHS had not yet completed its search for responsive records and had made no further determination. Next, on Mar. 17, 2017, plaintiff requested records since 2006 relating to a government consultant's work on the border wall, but plaintiff had received no further communication from DHS.

Finally, on May 4, 2017, plaintiff requested records related to the EO, specifically:
1. All records related to the border wall referred to in the Presidential Administration's FY 2017 supplemental appropriations request;
2. All maps and related documents identifying all locations considered or planned for border fencing/tactical infrastructure described in the FY 2017 appropriations legislation;
3. All bids by vendors related to border wall proposals and submitted to DHS and/or CBP;
4. All communications related to border wall proposals between DHS and/or CBP;
5. All communications between DHS and CBP related to border wall proposals, including, but not limited to: funding, timetables, and vendor
selection;
6. All existing and/or proposed timetables for the execution and construction of border wall proposals;
7. All communications between DHS and/or CBP with the White House
that relate to border wall proposals;
8. All communication between DHS and/or CBP and any other federal agencies that relate to the border wall proposals.

DHS then responded to plaintiff on Aug. 29, 2017, asking plaintiff to narrow the scope of its request, and asserting that this request did not constitute a denial.

The complaint alleged that, in all three of the requests above, DHS violated FOIA by failing to issue a determination within the statutory 20-day deadline and by failing to conduct an adequate records search. Further, regarding the 2013 request, plaintiff alleged that DHS had violated FOIA by wrongfully withholding non-exempt records. Plaintiff sought a disclosure order under FOIA and attorneys' fees.

This case was assigned to Magistrate Judge Kandis A. Westmore on Sept. 12. A case management statement was filed on Dec. 5, an ADR conference was held on Dec. 7, and a case management conference on Dec. 12. Plaintiff also filed an amended complaint on Dec. 12.

The case was referred to Magistrate Judge Maria-Elena James for settlement, but the parties on Mar. 26 agreed to a new production schedule. Defendants will produce 1000 pages monthly for six months, followed by 750 monthly until completion. The next case management conference will be July 17 with a case management statement due July 10.

The documents released by the government are available through this case page, below. This case is ongoing.

Ava Morgenstern - 04/07/2018


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