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SIERRA CLUB v. ASHCROFT

December 12, 2005.

SIERRA CLUB; CALIFORNIA NATIVE PLANT SOCIETY; SOUTHWEST WETLANDS INTERPRETIVE ASSOCIATION; SAN DIEGO BAY-KEEPER; SAN DIEGO AUDUBON SOCIETY; and CENTER FOR BIOLOGICAL DIVERSITY, Plaintiffs,
v.
JOHN ASHCROFT, in his official capacity as ATTORNEY GENERAL OF THE U.S.; U.S. DEPARTMENT OF JUSTICE; TOM RIDGE, in his official capacity as Secretary of the U.S. DEPARTMENT OF HOMELAND /SECURITY; U.S. DEPARTMENT OF HOMELAND SECURITY; ASA HUTCHINSON, in his official capacity as Undersecretary of the U.S. DIRECTORATE OF BORDER AND TRANSPORATION SECURITY; U.S. DIRECTORATE OF BORDER AND TRANSPORTATION SECURITY; ROBERT C. BONNER, in his official capacity as Commissioner of the U.S. BUREAU OF CUSTOMS AND BORDER PROTECTION; U.S. BUREAU OF CUSTOMS AND BORDER PROTECTION; MICHAEL J. GARCIA, in his official capacity as Assistant Secretary of the U.S. BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT; U.S. BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT; EDUARDO AGUIRRE, JR., in his official capacity as Director of the U.S. CITIZENSHIP AND IMMIGRATION SERVICES; and U.S. CITIZENSHIP AND IMMIGRATION SERVICES, Defendants.



The opinion of the court was delivered by: LARRY BURNS, Judge

ORDER DISMISSING CASE

I. OVERVIEW

The Illegal Immigration Reform And Immigrant Responsibility Act of 1996 ("IIRIRA") authorized the building of a 14-mile Border Infrastructure System ("BIS") along the U.S. border with Mexico in the San Diego area. 8 U.S.C. § 1103 Note. In addition to an existing reinforced fence along the border, the IIRIRA Section 102(b) authorized the building of second and third fences and roads between the fences (the "BIS" or "Triple Fence"). Plaintiffs in this action are several environmental protection groups who filed their Complaint in February 2004 for declaratory and injunctive relief, challenging the adequacy of the environmental impact reviews associated with the planning and construction of the Triple Fence. They sue to enforce the standards and requirements imposed by the National Environmental Policy Act of 1969 ("NEPA").*fn1 They name as defendants the Attorney General of the United States; the U.S. Dept. of Justice; the Secretary of the Department of Homeland Security ("DHS"); the DHS; and four other federal agencies and their head administrators. Plaintiffs allege six claims and seek declaratory and injunctive relief to block construction of the second and third fences until all NEPA requirements are satisfied.

  In June 2005, Congress enacted legislation delegating to the DHS Secretary the authority, in his sole discretion, to waive "all legal requirements" he determines necessary to expeditiously complete construction of the Triple Fence project, including but not limited to environmental laws (the "Waiver Legislation"). The Waiver Legislation also insulates BIS decisions from judicial review, other than for constitutional challenges. The DHS Secretary exercised his congressionally-delegated authority on September 13, 2005 by expressly waiving the applicability of NEPA and several other laws to the border fence construction.

  Plaintiffs' February 2004 Complaint alleges only that the DHS' proposed action would violate NEPA in various ways. On September 20, 2005, this Court issued an Order To Show Cause ("OSC") why this case should not be dismissed for lack of jurisdiction, in consideration of the legislative action and the DHS Secretary's exercise of his delegated authority. In response to the OSC, plaintiffs argue: (1) the Waiver Legislation violates the Constitution by impermissibly delegating legislative authority to the DHS Secretary; (2) application of the waiver to their case violates the Constitution by enabling the DHS Secretary to abolish the district court's jurisdiction over their case; and (3) application of the waiver to their case, pending before the legislation was enacted, is an impermissibly retroactive application of the Waiver Legislation. Defendants respond that this Court now lacks jurisdiction over the dispute and must dismiss the case.

  On December 12, 2005, the Court convened the OSC hearing. Cory Briggs, Esq. appeared for plaintiffs. Matthew LePore, Esq., Donna Fitzgerald, Esq., and Melissa Erny, Esq. appeared for defendants. After consideration of the papers submitted and arguments of counsel, as discussed below, the Court finds the Waiver Legislation divested the district courts of jurisdiction to hear plaintiff's NEPA challenges to the BIS completion when the DHS Secretary formally waived that statute's application to the project.*fn2 The dispute in this action has been mooted by legitimate process in the legislative and executive branches of the government. Accordingly, for the reasons discussed below, the case is DISMISSED in its entirety.

  II, LEGAL DEVELOPMENTS AND STANDARDS

  As enacted in 1996, IIRIRA, Section 102 directed:
. . . the Attorney General . . . [to] take such actions as may be necessary to install additional physical barriers and roads, including 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 . . . [including specifically the 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.
IIRIRA at § 102(b)(1). To ensure the authorized border fence would be constructed with deliberate speed, Congress expressly provided that the Endangered Species Act of 1973 ("ESA") and NEPA were "waived to the extent the Attorney General determines necessary to ensure expeditious construction" of the barriers and roads. IIRIRA, Section 102(c). The United States Border Patrol, then a sub-agency within the INS, began constructing the BIS as authorized by the IIRIRA, although the agency also prepared a series of NEPA analyses of the environmental impact, consulted with the U.S. Fish and Wildlife Service, and prepared a statement for the California Coastal Commission. See Def.'s Brief 4:11-21.

  The Homeland Security Act of 2002 ("HSA") created the DHS, consolidating various departments, including the INS. The DHS acquired the Border Patrol functions, power, and duty to control and guard U.S. borders against illegal entry. The HSA also specifically addressed the BIS: it is "the sense of the Congress that completing the 14-mile border fence project required to the carried out under section 102(b) of [IIRIRA] should be a priority for the Secretary." 6 U.S.C. § 256.*fn3

  Congress enacted the REAL ID Act in May 2005. Part of that Act amended the IIRIRA provisions applicable to the BIS to accord sole discretion to the DHS Secretary to "waive all legal requirements" the Secretary determines are "necessary to ensure expeditious construction" of the barriers and roads authorized by Section 102(c) of IIRIRA. Section 102(c) of Pub.L. No. 109-13, 119 Stat. 231, 8 U.S.C. § 1103 Note ("Waiver Legislation") (emphasis added). The Secretary waiver determinations become effective upon their publication in the Federal Register. Id.

 
SEC. 102. WAIVER OF LEGAL REQUIREMENTS NECESSARY FOR IMPROVEMENT OF BARRIERS AT BORDERS; FEDERAL COURT REVIEW.
  Section 102(c) of the [IIRIRA] is amended to read as follows: "(c) WAIVER. — (1) IN GENERAL — Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive all legal requirements such Secretary, in such Secretary's sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under this section. Any such decision by the Secretary shall be effective upon being published in the Federal Register. U.S.P.L. 109-13, HR 1268, Div. B — REAL ID Act of 2005, 119 Stat 231 (May 11, 2005) (the "Waiver Legislation" or "§ 102(c)").
  The Waiver Legislation also addressed the subsequent role of federal courts:
(2) FEDERAL COURT REVIEW. —
(A) IN GENERAL. — The district courts of the United States shall have exclusive jurisdiction to hear all causes or claims arising from any action undertaken, or any decision made, by the Secretary of Homeland Security pursuant to paragraph (1) [of Section 102(c)]. A cause of action or claim may only be brought alleging a violation of the Constitution of the United States. The court shall not have jurisdiction to hear any claim not specified in this subparagraph.
. . . .
Section 102(c)(2) (emphasis added).
  DHS Secretary Chertoff exercised the discretion vested in him by the Waiver Legislation on September 13, 2005, and published waivers in the Federal Register on September 22, 2005. He expressly found the application of eight statutes (including NEPA) impeded the "expeditious construction" of the BIS. 70 Fed.Reg. 55,622-23. In waiving those requirements, the Secretary emphasized Congress' desire that he make the BIS completion a "priority" and noted that nine years had already passed since IIRIRA was enacted, with the project still incomplete. Id. at 55,623. The published notice "Summary" recites:
The Secretary of Homeland Security has determined, pursuant to law, that it is necessary to waive certain laws, regulations and other legal requirements in order to ensure the expeditious construction of barriers and roads along the international land border of the United States in California.
70 FR 5562-02, 55563, 2005 WL 2295005 (F.R.). The Notice continues, in pertinent part:
. . . In [amended] section 102(c) of the IIRIRA, . . . Congress granted me the authority to waive all legal requirements that I, in my sole discretion, determine necessary to ensure the expeditious construction of barriers and roads under section 102 of IIRIRA.
In section 102(b) of the IIRIRA, Congress specifically provided for the construction along the 14 miles of the international land border of the United States . . . of second and third fences, in addition to the reinforced fence, and for roads between the fences. . . . Congress expressed its sense that completing the 14-mile border project under section 102(b) of the IIRIRA should be a priority for the Secretary of Homeland Security. Nearly nine years after the passage of the IIRIRA, the project prescribed in section 102(b) of the IIRIRA remains incomplete.
In order to ensure the expeditious construction of the barriers and roads that Congress prescribed, . . . I have determined that it is necessary that I exercise the authority that was transferred to me by sections 1511 and 1517 of the [HSA] and that vested in me by section 102(c) of the IIRIRA. . . . I hereby waive in their entirety, with respect to the construction of the barriers and roads prescribed in section 102(b) of the IIRIRA . . . all federal, state, or other laws, regulations and legal requirements of, deriving from, or related to the subject of, the following laws as amended: The National Environmental Policy ...

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