Border Infrastructure Envtl. Litig. v. U.S. Dep't of Homeland Sec.

915 F.3d 1213
CourtCourt of Appeals for the Ninth Circuit
DecidedFebruary 11, 2019
DocketNo. 18-55474; No. 18-55475; No. 18-55476
StatusPublished
Cited by18 cases

This text of 915 F.3d 1213 (Border Infrastructure Envtl. Litig. v. U.S. Dep't of Homeland Sec.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Border Infrastructure Envtl. Litig. v. U.S. Dep't of Homeland Sec., 915 F.3d 1213 (9th Cir. 2019).

Opinions

McKEOWN, Circuit Judge:

Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), the Secretary of the Department of Homeland Security ("DHS") has long had the authority "to install additional physical barriers and roads ... in the vicinity of the United States border ...." IIRIRA § 102(a).1 The Secretary also "ha[s] the authority to waive all legal requirements" that, in the "Secretary's sole discretion," are "necessary to ensure expeditious construction" of those barriers and roads. Id. § 102(c)(1).

*1218This appeal stems from a challenge by California and multiple environmental groups to the agency's authority to expedite construction of border barriers near San Diego and Calexico, California, and the Secretary's August and September 2017 waivers of applicable environmental laws. As a threshold matter, we have jurisdiction to consider the "predicate legal question" of whether IIRIRA authorizes the contested projects. Because the projects are statutorily authorized and DHS has waived the environmental laws California and the environmental groups seek to enforce, we affirm the district court's grant of summary judgment to DHS.

BACKGROUND

On January 25, 2017, President Donald J. Trump issued Executive Order 13,767, directing federal agencies to "deploy all lawful means to secure the Nation's southern border." 82 Fed. Reg. 8793 (Jan. 25, 2017). A focal point of that directive was "the immediate construction of a physical wall," to be planned, designed, and built "[i]n accordance with existing law, including ... IIRIRA." Id. at 8793-94. The "wall" was to be a "secure, contiguous, and impassable physical barrier" along the "contiguous land border between the United States and Mexico, including all points of entry." Id. at 8794.

By March 2017, DHS had begun planning projects carrying out the Executive Order, including two relevant to this appeal:

• The construction and evaluation of wall "prototypes" in San Diego County, California (the "Prototype Project"); and
• The replacement of fourteen miles of primary fencing and fourteen miles of secondary fencing in San Diego County (the "San Diego Project").

On August 2, 2017, the DHS Secretary2 published in the Federal Register a notice of determination concerning the Prototype Project and the San Diego Project (the "San Diego Waiver"). See 82 Fed. Reg. 35,984 (Aug. 2, 2017). The Secretary invoked section 102(c)'s grant of "authority to waive all legal requirements that I, in my sole discretion, determine necessary to ensure the expeditious construction of barriers and roads authorized by section 102 of IIRIRA." Id. at 35,984. The San Diego Waiver asserted that the U.S. Border Patrol's "San Diego Sector remains an area of high illegal entry for which there is an immediate need to construct additional border barriers and roads." Id. The designated "Project Area"-extending fifteen miles inland from the Pacific Ocean-encompassed the Prototype and San Diego Projects. Id. Having determined the action was "necessary," the Secretary invoked section 102(c) to "waive in their entirety" thirty-seven federal laws "with respect to the construction of roads and physical barriers" in the Project Area. Id. at 35,985.

On September 12, 2017, the Secretary again invoked section 102's waiver authority in another notice of determination in the Federal Register (the "Calexico Waiver"). See 82 Fed. Reg. 42,829 (Sept. 12, 2017). The Calexico Waiver pertained to the replacement of primary fencing along a three-mile segment of the border near Calexico, California (the "Calexico Project"). Id. at 42,830. The Secretary asserted that, like the San Diego Sector, the "El Centro Sector [which includes Calexico] remains an area of high illegal entry for which there is an immediate need to construct *1219border barriers and roads," and designated a Project Area for the replacement fencing. Id. Again deeming the action "necessary," the Secretary waived twenty-seven federal laws "with respect to the construction of roads and physical barriers" in the Project Area. Id.

With one exception, construction on the Prototype, San Diego, and Calexico Projects (collectively "the border barrier projects") has already begun and is either complete or ongoing. Construction on the San Diego secondary-fence replacement project had not begun when DHS filed its Answering Brief. DHS maintains that project is still in the preliminary planning stage, and that the Secretary has not yet determined whether a waiver is necessary.

Three sets of plaintiffs3 filed lawsuits against the federal government4 to enjoin the border barrier projects and to declare the San Diego and Calexico Waivers unlawful. The district court consolidated the suits, finding that they shared common legal and factual issues. California and the environmental groups asserted three types of claims. The "ultra vires claims" alleged that DHS exceeded its statutory authority in working on the border barrier projects and issuing the related waivers, thus violating the Administrative Procedure Act ("APA"), 5 U.S.C. § 551

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Cite This Page — Counsel Stack

Bluebook (online)
915 F.3d 1213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/border-infrastructure-envtl-litig-v-us-dept-of-homeland-sec-ca9-2019.