Filed Date: June 15, 2017
Closed Date: April 18, 2019
Clearinghouse coding complete
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 argued 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, Nondelegation 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 nonconstitutional 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.
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. 2017 WL 4861650. 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. On Feb. 27, he issued an order denying plaintiff's motions for summary judgment and granting DHS's motions for summary judgment, except for plaintiffs' FOIA claim. First, Judge Curiel held that defendants had violated no clear and unambiguous interpretation of IIRIRA's waiver provision, and therefore that the Court lacked jurisdiction to hear statutory, nonconstitutional claims under that provision. This bar applied to plaintiffs' statutory claims under IIRIRA, APA, NEPA, ESA, and CZMA.
Turning next to the constitutional claims, Judge Curiel held that defendants had not violated the Nondelegation and Separation of Powers Doctrines, because Congress had properly delegated its legislative authority under an intelligible principle. Neither had plaintiffs sufficiently argued that defendants had violated the Take Care Clause, Congress' delegation to the executive of power to waive criminal laws, the Presentment Clause, or the Tenth Amendment. Further, plaintiffs had not shown that the challenged provision deprived them of their rights under the Due Process Clause, the First Amendment right to petition, or Article III. 284 F.Supp.3d 1092.
Plaintiffs' FOIA claim survived Judge Curiel's Feb. 27 order. However, on Mar. 23, the parties jointly moved to dismiss the FOIA claim, because defendants had provided the requested records. On Mar. 26, Judge Curiel granted the motion to dismiss with prejudice.
On Apr. 9, plaintiff appealed the case to the Ninth Circuit, which opened a new docket (No. 18-55474).
On Apr. 19, 2018, the Circuit Court consolidated plaintiff's appeal with appeals from the consolidated cases (No. 18-55475 and 18-55476).
The Ninth Circuit held oral argument on Aug. 7.
While the Ninth Circuit's decision was pending, on Aug. 23, plaintiff filed a petition for writ of certiorari to the Supreme Court. The issue that plaintiff requested the Supreme Court to answer was "whether IIRIRA § 102(c)—which grants the Secretary of Homeland Security sweeping power to waive any or all legal requirements in her sole discretion, and then insulates that exercise of discretion from judicial review—violates the separation of powers."
On Dec. 30, 2018, the Supreme Court denied the plaintiff's petition for writ of certiorari.
139 S.Ct. 594.
On Feb. 19, 2019, the Ninth Circuit panel (Circuit Judges M. Margaret McKeown, Consuelo M. Callahan, and Jacqueline H. Nguyen) affirmed the district court’s grant of summary judgment to defendants. The panel first concluded that the circuit court had jurisdiction to consider the "predicate legal question" of whether IIRIRA authorized the contested projects.
Next, the panel held that under the plain text of the section, the defendants had the authority to construct the projects. This was because section 102(a) granted the Secretary of the DHS authority 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.” The panel found that the border barrier projects constituted “additional physical barriers" and are “in areas of high illegal entry into the United States.”
The panel further concluded that the fencing requirements and deadlines in Section 102(b) did not establish limits applicable to Section 102(a); "Section 102(b)’s provisions for priority projects do not swallow section 102(a)’s independent authorization to build 'additional physical barriers.'"
Lastly, the panel held that that the environmental claims were precluded by the Secretary’s waiver of the NEPA, the CZMA, and the APA and that it lacked jurisdiction to consider any argument challenging the waivers themselves. 915 F.3d 1213.
The judgment of the Ninth Circuit took effect on April 5, 2019. The case is now closed.
Summary Authors
Ava Morgenstern (5/5/2018)
Aaron Gurley (2/17/2020)
Defenders of Wildlife v. Duke, Southern District of California (2017)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/6129117/parties/center-for-biological-diversity-v-us-department-of-homeland-security/
Alderson, David G. (California)
Appelbaum, John M. (California)
Barclay Strobel, Jessica (California)
Becerra, Xavier (California)
Braverman, Adam (California)
Callahan, Consuelo Maria (California)
Curiel, Gonzalo Paul (California)
Gallo, William V. (California)
McKeown, M. Margaret (California)
Nguyen, Jacqueline Hong-Ngoc (California)
Alderson, David G. (California)
Appelbaum, John M. (California)
Barclay Strobel, Jessica (California)
Cayaban, Michael P. (California)
Cummings, Brendan R. (California)
Eliseuson, Anthony Thomas (Illinois)
Golden-Krasner, Noah (California)
Hanneken, Sarah Kathryn (Oregon)
Paben, Brett Michael (Colorado)
See docket on RECAP: https://www.courtlistener.com/docket/6129117/center-for-biological-diversity-v-us-department-of-homeland-security/
Last updated April 2, 2024, 3:08 a.m.
State / Territory: California
Case Type(s):
Special Collection(s):
Trump Immigration Enforcement Order Challenges
Trump Administration FOIA cases
Key Dates
Filing Date: June 15, 2017
Closing Date: April 18, 2019
Case Ongoing: No
Plaintiffs
Plaintiff Description:
Environmental organization.
Plaintiff Type(s):
Non-profit NON-religious organization
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: No
Class Action Outcome: Not sought
Defendants
U.S. Department of Homeland Security, Federal
U.S. Customs and Border Protection, Federal
Case Details
Causes of Action:
Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)
Declaratory Judgment Act, 28 U.S.C. § 2201
Freedom of Information Act (FOIA), 5 U.S.C. § 552
Available Documents:
Outcome
Prevailing Party: Defendant
Nature of Relief:
Source of Relief:
Issues
General:
Immigration/Border: