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Case Name Center for Biological Diversity v. U.S. Department of Homeland Security IM-CA-0103
Docket / Court 3:17-cv-01215-GPC-WVG ( S.D. Cal. )
State/Territory California
Case Type(s) Immigration and/or the Border
Special Collection Civil Rights Challenges to Trump Immigration Enforcement Orders
Trump Administration FOIA cases
Case Summary
On June 15, 2017, the Center for Biological Diversity brought this lawsuit against the Department of Homeland Security (DHS) and its component Customs and Border Protection (CBP). Plaintiff filed in the U.S. District Court for the Southern District of California and the case was assigned to Judge ... read more >
On June 15, 2017, the Center for Biological Diversity brought this lawsuit against the Department of Homeland Security (DHS) and its component Customs and Border Protection (CBP). Plaintiff filed in the U.S. District Court for the Southern District of California and the case was assigned to Judge Gonzalo P. Curiel (whom Trump had previously disparaged in an unrelated case). The case combined several different challenges to the Trump Administration's planned border wall, and sought declaratory and injunctive relief and attorneys' fees.

After an initial complaint and a First Amended Complaint, plaintiff filed a Second Amended Complaint on Sept. 6. According to the Second Amended Complaint, plaintiff is "an environmental conservation organization that works to protect native wildlife species and their habitats." In the wake of President Trump's Executive Order (EO) No. 13767, authorizing expanded border wall construction, plaintiff feared that such construction would harm the environment, in violation of the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), and other environmental statutes. Plaintiff was also concerned that the border wall would harm plaintiff's members who frequented borderland wildlife areas.

The first issue was under the Freedom of Information Act (FOIA). On May 2, 2017, the plaintiff had submitted a FOIA request to DHS and CBP. The requested records related to the agencies' statutorily-mandated environmental analysis, as well as compliance with other environmental laws, for the border wall prototype project. Plaintiff alleged that defendants, by failing to respond, had violated FOIA or alternatively the Administrative Procedures Act (APA).

The second issue was about compliance with NEPA's requirement of public participation in agency decisionmaking. On June 1, plaintiff notified DHS that it believed the wall would violate the environmental statutes. However, DHS provided no notice-and-comment or public participation procedure, nor did it respond to plaintiff's communications. This too was said to violate NEPA, its implementing regulations, and the APA.

The third issue was about both substantive and procedural application of the environmental laws. On Aug. 2, 2017, DHS announced that under its interpretation of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 and subsequent amendments, IIRIRA allowed DHS to waive the application of the NEPA, ESA, and many other federal statutes for the purposes of implementing the EO. Plaintiff claimed that in fact IIRIRA did not authorize this waiver, because its grant of waiver authority to DHS had already expired and had not been renewed. Plaintiff also alleged that in waiving the applicability of the environmental statutes, defendant had violated IIRIRA, NEPA, and ESA, as well as the U.S. Constitution's Take Care Clause, Separation of Powers Doctrine, Non-Delegation Doctrine, and Presentment Clause.

On Sept. 15, the court related this case to another recent case filed by environmental groups challenging the border wall, Defenders of Wildlife v. Duke, following the request of plaintiffs in the latter case.

On Oct. 6, the government moved to dismiss. DHS first argued that according to IIRIRA's waiver provision, the Court lacked jurisdiction to consider plaintiff's non-constitutional claims. Moreover, DHS claimed, to the extent the Court could review the statutory claims, the government had not exceeded its authority under its executive power and IIRIRA's waiver provision. Turning to the constitutional claims, defendant then denied any violations. Finally, DHS argued that no APA claim existed because FOIA provided an adequate remedy.

Plaintiff must respond to DHS's motion to dismiss by Nov. 3 and DHS must reply by Nov. 17. Judge Curiel will hold a motion hearing on Dec. 15, 2017.

The parties jointly requested on Oct. 20 that this case be consolidated with Defenders of Wildlife v. Duke and California v. U.S.. On Oct. 24, Judge Curiel granted the motion. The consolidated cases continue on this case page.

On Nov. 22, all plaintiffs moved separately for summary judgment. The Center for Biological Diversity and the Animal Legal Defense Fund both argued that the Trump administration had exceeded its statutory authority under IIRIRA (or, in the alternative, its constitutional authority under the Take Care Clause, Presentment Clause, Separation of Powers Doctrine, and Nondelegation Doctrine), by reviving IIRIRA's waiver provision for the new border wall projects. The State of California advanced a similar argument and also alleged that the Trump administration had violated the APA, NEPA, and Coastal Zone Management Act (CZMA).

On Dec. 20, DHS opposed plaintiffs' motions for summary judgment and cross-filed for summary judgment. First, DHS argued that California had not established standing. Substantively, DHS argued that the Court lacked jurisdiction to consider plaintiffs' constitutional claims under IIRIRA's waiver provision. DHS also maintained that the provision was constitutional. Plaintiffs responded on Jan. 5, 2018, and DHS replied on Jan. 23.

Judge Curiel held a Feb. 9 hearing on the cross-motions for summary judgment; he has yet to issue an order.

This case is ongoing.

Ava Morgenstern - 02/10/2018


compress summary

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Issues and Causes of Action
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Issues
General
Record-keeping
Records Disclosure
Immigration/Border
Border wall
Plaintiff Type
Non-profit NON-religious organization
Causes of Action Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Declaratory Judgment Act, 28 U.S.C. § 2201
Freedom of Information Act (FOIA), 5 U.S.C. § 552
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)
Defendant(s) U.S. Customs and Border Protection
U.S. Department of Homeland Security
Plaintiff Description Environmental organization
Class action status sought No
Class action status granted No
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief None yet
Source of Relief None yet
Case Ongoing Yes
Case Listing IM-CA-0101 : Defenders of Wildlife v. Duke (S.D. Cal.)
IM-CA-0102 : People of the State of California v. United States of America (S.D. Cal.)
Additional Resources
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  Sierra Club Joins Conservation Groups to Challenge Border Wall
www.sierraclub.org
Date: Feb. 9, 2018
By: Sierra Club
[ Detail ] [ External Link ]

  The judge Trump disparaged as ‘Mexican’ will preside over an important border wall case
www.washingtonpost.com
Date: Feb. 5, 2018
By: Eli Rosenberg (Washington Post)
[ Detail ] [ External Link ]

  Lawsuit Challenges San Diego Border-wall Waiver as Unconstitutional
www.biologicaldiversity.org
Date: Sep. 6, 2017
By: Center for Biological Diversity
[ Detail ] [ External Link ]

  Memorandum on Rescission Of Deferred Action For Childhood Arrivals (DACA)
www.dhs.gov
Date: Sep. 5, 2017
By: Department of Homeland Security
[ Detail ] [ External Link ]

  Lawsuit Seeks Federal Documents on Trump's Border Wall Prototypes
www.biologicaldiversity.org
Date: Jun. 15, 2017
By: Center for Biological Diversity
[ Detail ] [ External Link ]

  Implementation of Executive Order 13768, "Enhancing Public Safety in the Interior of the United States
The Washington Post
Date: May 22, 2017
By: Jefferson Sessions (U.S. Department of Justice)
[ Detail ] [ External Link ]

  Re: Implementing the President's Border Security and Immigration Enforcement Improvements Policies (Final, 2/20/2017)
dhs.gov
Date: Feb. 20, 2017
By: DHS Secretary John Kelly (United States Department of Homeland Security)
[ Detail ] [ PDF ] [ External Link ]

  Re: Enforcement of the Immigration Laws to Serve the National Interest (Final, 2/20/2017)
dhs.gov
Date: Feb. 20, 2017
By: DHS Secretary John Kelly (United States Department of Homeland Security)
[ Detail ] [ PDF ] [ External Link ]

  Executive Order 13767: Border Security and Immigration Enforcement Improvements
Federal Register
Date: Jan. 27, 2017
By: President Donald Trump (Office of the President)
Citation: 82 Fed. Reg. Presidential Documents 8793 (Jan. 27, 2017)
[ Detail ] [ PDF ]

  Executive Order 13768: Enhancing Public Safety in the Interior of the United States
Federal Register
Date: Jan. 25, 2017
By: President Donald Trump (Office of the President)
[ Detail ] [ PDF ] [ External Link ]

Docket(s)
3:17-cv-1215 (S.D. Cal.)
IM-CA-0103-9000.pdf | Detail
Date: 01/05/2018
Source: PACER [Public Access to Court Electronic Records]
General Documents
Second Amended Complaint For Declaratory and Injunctive Relief [ECF# 16]
IM-CA-0103-0001.pdf | Detail
Date: 09/06/2017
Source: PACER [Public Access to Court Electronic Records]
Memorandum of Points and Authorities In Support of Motion to Dismiss Second Amended Complaint [ECF# 18-1]
IM-CA-0103-0002.pdf | Detail
Date: 10/06/2017
Source: PACER [Public Access to Court Electronic Records]
Plaintiff Center for Biological Diversity's Memorandum of Points and Authorities in Support of Cross Motion for Summary Judgment and in Opposition to Defendants' Motion for Summary Judgment [ECF# 28-1]
IM-CA-0103-0003.pdf | Detail
Date: 11/22/2017
Source: PACER [Public Access to Court Electronic Records]
Memorandum of Points and Authorities in Support of Plaintiffs Defenders of Wildlife, Animal Legal Defense Fund, and Sierra Club's Motion for Summary Judgment [ECF# 29-1]
IM-CA-0103-0004.pdf | Detail
Date: 11/22/2017
Source: PACER [Public Access to Court Electronic Records]
Memorandum in Support of Motion for Summary Judgment by Plaintiffs People of the State of California and the California Coastal Commission [ECF# 30-2]
IM-CA-0103-0005.pdf | Detail
Date: 11/22/2017
Source: PACER [Public Access to Court Electronic Records]
Defendants' Memorandum in Opposition to Plaintiffs' Motions for Summary Judgment and in Support of Defendants' Cross-Motion for Summary Judgment [ECF# 35-1]
IM-CA-0103-0006.pdf | Detail
Date: 12/20/2017
Source: PACER [Public Access to Court Electronic Records]
Plaintiff Center for Biological Diversity's Reply Memorandum of Points and Authorities in Support of Cross Motion for Summary Judgment [ECF# 36]
IM-CA-0103-0007.pdf | Detail
Date: 01/05/2018
Source: PACER [Public Access to Court Electronic Records]
Coalition Plaintiffs' Combined Memorandum in Opposition to Defendants' Cross-Motion for Summary Judgment and Reply to Defendants' Motion for Summary Judgment [ECF# 38]
IM-CA-0103-0008.pdf | Detail
Date: 01/05/2018
Source: PACER [Public Access to Court Electronic Records]
California's Reply in Support of California's Motion for Summary Judgment and Opposition to Defendants' Cross-Motion for Summary Judgment [ECF# 39]
IM-CA-0103-0009.pdf | Detail
Date: 01/05/2018
Source: PACER [Public Access to Court Electronic Records]
Defendants' Memorandum in Opposition to Plaintiffs' Motions for Summary Judgment and in Support of Defendants' Cross-Motion for Summary Judgment [ECF# 42]
IM-CA-0103-0010.pdf | Detail
Date: 01/23/2018
Source: PACER [Public Access to Court Electronic Records]
Judges Curiel, Gonzalo Paul (S.D. Cal., D. Vt.)
IM-CA-0103-9000
Gallo, William V. (S.D. Cal.) [Magistrate]
IM-CA-0103-9000
Plaintiff's Lawyers Alderson, David G. (California)
IM-CA-0103-0005
Appelbaum, John M. (California)
IM-CA-0103-0005
Barclay Strobel, Jessica (California)
IM-CA-0103-0005
Becerra, Xavier (California)
IM-CA-0103-0005 | IM-CA-0103-0009
Byrne, Robert W. (California)
IM-CA-0103-0005
Cayaban, Michael P. (California)
IM-CA-0103-0005 | IM-CA-0103-0009 | IM-CA-0103-9000
Cummings, Brendan R. (California)
IM-CA-0103-0001 | IM-CA-0103-0003 | IM-CA-0103-0007 | IM-CA-0103-9000
Eliseuson, Anthony Thomas (Illinois)
IM-CA-0103-0004 | IM-CA-0103-0008
Forgie, Julia (California)
IM-CA-0103-0005
Golden-Krasner, Noah (California)
IM-CA-0103-0005
Hanneken, Sarah Kathryn (Oregon)
IM-CA-0103-0004 | IM-CA-0103-0008
Kerr, Baine P. (California)
IM-CA-0103-0005
Medley, Amie (California)
IM-CA-0103-0005
Paben, Brett Michael (Colorado)
IM-CA-0103-0004 | IM-CA-0103-0008 | IM-CA-0103-9000
Patterson, Timothy R. (California)
IM-CA-0103-0005
Rose, John Peter (California)
IM-CA-0103-0003 | IM-CA-0103-0007 | IM-CA-0103-9000
Segee, Brian P. (California)
IM-CA-0103-0001 | IM-CA-0103-0003 | IM-CA-0103-0007 | IM-CA-0103-9000
Smith, Janelle M. (California)
IM-CA-0103-0005
Smith, Gloria D. (California)
IM-CA-0103-0004 | IM-CA-0103-0008 | IM-CA-0103-9000
Su, Anchun Jean (California)
IM-CA-0103-0001 | IM-CA-0103-0003 | IM-CA-0103-0007 | IM-CA-0103-9000
Defendant's Lawyers Braverman, Adam (California)
IM-CA-0103-0010
Church, Rebecca G. (California)
IM-CA-0103-0002 | IM-CA-0103-0010
Parker, Katherine Lind (California)
IM-CA-0103-9000
Readler, Chad A. (District of Columbia)
IM-CA-0103-0002 | IM-CA-0103-0006 | IM-CA-0103-0010
Robinson, Alana W. (District of Columbia)
IM-CA-0103-0002
Thorp, Galen N. (District of Columbia)
IM-CA-0103-0002 | IM-CA-0103-0006 | IM-CA-0103-0010 | IM-CA-0103-9000
Tyler, John Russell (District of Columbia)
IM-CA-0103-0002 | IM-CA-0103-0006 | IM-CA-0103-0010
Other Lawyers Silvas, Deborah Ann (California)
IM-CA-0103-9000

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