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