Center for Biological Diversity v. Kelly

• Court: District Court, D. Arizona
• Decided: August 23, 2021
• Docket: 4:17-cv-00163
• Status: Unknown

Opinion

1 WO 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE DISTRICT OF ARIZONA

8 Center for Biological Diversity, et al., No. CV-17-00163-TUC-CKJ

9 Plaintiffs, ORDER

10 v.

11 Alejandro Mayorkas,1 et al.,

12 Defendants. 13 14 15 Before the Court are Plaintiffs’ Motion for Summary Judgment (Doc. 63) and 16 Defendants’ Cross-Motion for Summary Judgment (Doc. 69). For the reasons that follow, 17 Plaintiffs’ motion for summary judgment is GRANTED IN PART AND DENIED IN 18 PART, and Defendants’ cross-motion for summary judgment is GRANTED IN PART 19 AND DENIED IN PART. The Court finds that Defendants violated NEPA but did not 20 violate the ESA. Plaintiffs’ request for injunctive relief is DENIED. 21 BACKGROUND 22 In 1989, President George H.W. Bush created six regional joint task forces, named 23 Joint Task Force-Six (the “Task Force”), to coordinate anti-drug efforts between the 24 military and local law enforcement agencies and to provide military reinforcements to 25 those agencies for anti-drug efforts. Sean J. Kealy, Reexamining the Posse Comitatus Act: 26 Toward A Right to Civil Law Enforcement, 21 Yale L. & Pol'y Rev. 383, 419 (2003). The 27 1 At the time of the original complaint, John F. Kelly was the Secretary of DHS. (Doc. 1 at 28 10) Since February 1, 2021, Alejandro Mayorkas has been the Secretary. U.S. Department of Homeland Security, http://www.dhs.gov/secretary (last visited Aug. 19, 2021). 1 Task Force provides operational, engineering, and general support to law enforcement 2 agencies that conduct operations at United States borders when the agencies request such 3 support. (Doc. 70 at 16) The support comes in the form of the design and construction of 4 buildings, training facilities, roads, fences, and lighting; the manning of ground patrols and 5 listening and observation posts; and the processing and analysis of data. Id. The Task 6 Force has always been classified as a military command unit under the United States 7 Department of Defense. Id. 8 In 1994, the Department of Defense and the United States Immigration and 9 Naturalization Service (“INS”) prepared a final programmatic environmental impact 10 statement to comply with the National Environmental Policy Act (“NEPA”), 42 U.S.C. 11 § 4321 et seq. A.R. at 1, 15.2 The impact statement addressed the cumulative 12 environmental effects of past and reasonably foreseeable Task Force activity for numerous 13 law enforcement agencies along a 50-mile-wide border corridor in Texas, New Mexico, 14 Arizona, and California. Id. at 15. At the time, INS—through its Border Patrol 15 component—had been the primary beneficiary of Task Force activity and elected to be the 16 lead agency for the preparation of the statement. Id. at 3. The statement described general 17 Task Force projects and discussed the types of expected environmental impacts from the 18 continuation of border-enforcement activity. Id. at 15. 19 In 2001, the Departments of Justice and Defense prepared a final supplemental 20 programmatic environmental impact statement. Id. at 268. While maintaining a 21 programmatic approach, the supplemental statement had a narrower focus than its 22 predecessor and only addressed activity that supported INS projects from 1994 to 2001. 23 Id. at 297; 389. The statement’s focus was narrowed because the agencies felt that the 24 document’s scope was overly broad, which caused confusion among the public. Id. at 389. 25 In addition to discussing past Task Force activity, the statement also presented the 26 anticipated level of activity for a five-year period, dating from 2000 to 2005. Id. at 297. 27 In 2017, the Center for Biological Diversity (the “Center”), a non-profit 28 2 The Administrative Record in this case is abbreviated as “A.R.”. 1 environmental organization, and United States Congressman Raul Grijalva, filed suit in 2 this Court alleging, inter alia, that the Department of Homeland Security (the 3 “Department”)3 and its agency component, Customs and Border Protection, violated NEPA 4 by failing to update their programmatic environmental analysis for border-enforcement 5 activity4 since 2001. (Doc. 14 at 2) Plaintiffs also alleged that Defendants failed to consult 6 with the United States Fish and Wildlife Service (“FWS”) concerning the impacts of 7 border-enforcement activity on threatened or endangered species in violation of Section 8 7(a)(2) of the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq. Id. 9 In March 2019, the Department officially withdrew from programmatic and 10 supplemental programmatic environmental impact statements. A.R. at 8832. Prior to the 11 parties’ filing of summary judgment motions, Defendants expanded the Administrative 12 Record to include 95 individual documents covering approximately 9,000 pages in length. 13 Doc. 49 at 29. Defendants also supplemented the Administrative Record on multiple 14 occasions throughout the litigation and submitted four declarations from their 15 Environmental Planning and Historic Preservation Program Manager, which explained the 16 reasoning behind Defendants’ withdrawal from programmatic environmental impact 17 statements and the logic surrounding other environmental decisions affecting the area in 18 question. See Docs. 49 at 3-29; 54-3 at 2-6; 56 at 5-9; 62-1 at 2-8. At the summary 19 judgment stage, Plaintiffs’ NEPA and ESA claims remain. 20 PROCEDURAL HISTORY 21 On July 24, 2020, Plaintiffs filed their Motion for Summary Judgment (Doc. 63), 22 Statement of Undisputed Material Facts (Doc. 65) and amended Memorandum in Support 23 of Motion for Summary Judgment (Doc. 66). On September 18, 2020, Defendants filed 24 their Cross-Motion for Summary Judgment (Doc. 69), Combined Opposition to Plaintiffs’ 25 Motion for Summary Judgment and Memorandum in Support of Cross-Motion for 26 3 In 2003, Congress created Customs and Border Protection by combining elements of the 27 former INS and United States Customs Service. Congress made Customs and Border Protection a component agency of DHS. (Doc. 71, ¶ 2 at 4) 28 4 The Court substitutes Plaintiffs’ use of the term “southern border enforcement program” with the activity it attempts to label. 1 Summary Judgment (Doc. 70), Statement of Undisputed Material Facts (Doc. 71), and 2 Response to Plaintiffs’ Statement of Facts (Doc. 72). On October 30, 2020, Plaintiffs filed 3 their Combined Opposition to Defendants’ Motion for Summary Judgment and Reply Brief 4 in Support of Motion for Summary Judgment (Doc. 73), and Response to Federal 5 Defendants’ Statement of Undisputed Material Facts (Doc. 74). On November 20, 2020, 6 Defendants filed their Reply in Support of Cross-Motion for Summary Judgment 7 (Doc. 75). On February 23, 2021, the Court heard oral argument on the parties’ summary 8 judgment motions. (Doc. 77) This Order follows. 9 LEGAL STANDARD 10 “The Administrative Procedure Act (“APA”) governs judicial review of agency 11 action.” The Wilderness Soc'y v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1059 (9th Cir. 12 2003). “In a case involving review of final agency action under the APA, . . . the Court's 13 role is limited to reviewing the administrative record,” Colorado River Cutthroat Trout v. 14 Salazar, 898 F. Supp. 2d 191, 200 (D.D.C. 2012), and it “generally need not perform any 15 fact-finding,” All. for the Wild Rockies v. U.S. Forest Serv., No. 2:19-CV-00350-SMJ, 2020 16 WL 7049556, at *5 (E.D. Wash. Dec. 1, 2020). At the summary judgment stage, the court 17 need only determine whether “as a matter of law the evidence in the administrative record 18 permitted the agency to make the decision it did.” Id. (cleaned up). 19 “Agency action is valid if a reasonable basis exists for the agency's decision.” 20 Arrington v. Daniels, 516 F.3d 1106, 1112 (9th Cir. 2008) (cleaned up). “A reasonable 21 basis exists where the agency considered the relevant factors and articulated a rational 22 connection between the facts found and the choices made.” Id. (citation and quotation 23 marks omitted). “Post hoc explanations of agency action . . . cannot substitute for the 24 agency's own articulation of the basis for its decision.” Id. at 1113. “Summary judgment 25 thus serves as the mechanism for deciding, as a matter of law, whether the agency action 26 is supported by the administrative record and otherwise consistent with the APA standard 27 of review.” Colorado River, 898 F. Supp. 2d at 200 (cleaned up). “When parties file cross- 28 motions for summary judgment, the [c]ourt must consider the evidence submitted in 1 support of both motions before ruling on either motion.” Ctr. for Biological Diversity v. 2 U.S. Bureau of Land Mgmt., No. CV 17-8587-GW(ASX), 2019 WL 2635587, at *8 (C.D. 3 Cal. June 20, 2019). 4 DISCUSSION 5 I. Standing 6 As a preliminary matter, Defendants argue that Plaintiffs lack standing to sue in 7 federal court. (Doc. 70 at 20-25). Plaintiffs lack standing, Defendants argue, because their 8 past injuries are not redressable through after-the-fact environmental review and their 9 speculative fears about future injury arising from unspecified projects do not satisfy their 10 burden to identify specific, final agency action approving a border enforcement project as 11 the source of those fears. Id. at 10. Plaintiffs argue that their declarations establish standing 12 by showing that they suffer injuries that are concrete, particularized, actual and imminent, 13 fairly traceable to the challenged action, and redressable. (Doc. 73 at 8-10) The issue for 14 the Court to determine is whether Plaintiffs’ declarations satisfy the standing requirements 15 for environmental claims that involve procedural injuries.5 16 In Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., the 17 Supreme Court outlined the standard for organizational standing. 528 U.S. 167 (2000). It 18 concluded:

19 [T]o satisfy Article III's standing requirements, a plaintiff must show (1) it 20 has suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly 21 traceable to the challenged action of the defendant; and (3) it is likely, as 22 opposed to merely speculative, that the injury will be redressed by a favorable decision. An association has standing to bring suit on behalf of its 23 members when its members would otherwise have standing to sue in their 24 own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the 25 participation of individual members in the lawsuit. 26 5 See WildEarth Guardians v. U.S. Dep’t of Agric., 795 F.3d 1148, 1154 (9th Cir. 2015) 27 (concluding that a claim “alleging a NEPA violation” is procedural); Nat. Res. Def. Council v. Jewell, 749 F.3d 776, 783 (9th Cir. 2014) (en banc) (“[A]lleged violations of Section 28 7(a)(2)’s consultation requirement constitute a procedural injury for standing purposes.”). 1 Id. at 181 (quotation marks omitted). “When there are multiple plaintiffs, at least one 2 plaintiff must have standing to seek each form of relief requested in the complaint.” 3 Friends of Santa Clara River v. U.S. Army Corps of Eng’rs, 887 F.3d 906, 917 (9th Cir. 4 2018) (cleaned up). “The party invoking federal jurisdiction bears the burden of 5 establishing these elements.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561, (1992). 6 A. Injury in Fact 7 “The ‘injury in fact’ requirement in environmental cases is satisfied if an individual 8 adequately shows that she has an aesthetic or recreational interest in a particular place, or 9 animal, or plant species and that that interest is impaired by a defendant's conduct.” 10 Ecological Rts. Found. v. Pac. Lumber Co., 230 F.3d 1141, 1147 (9th Cir. 2000). “[A]n 11 individual can establish ‘injury in fact’ by showing a connection to the area of concern 12 sufficient to make credible the contention that the person's future life will be less 13 enjoyable—that he or she really has or will suffer in his or her degree of aesthetic or 14 recreational satisfaction—if the area in question remains or becomes environmentally 15 degraded.” Id. at 1149; see also Friends of the Earth, 528 U.S. at 183 (“[E]nvironmental 16 plaintiffs adequately allege injury in fact when they aver that they use the affected area and 17 are persons for whom the aesthetic and recreational values of the area will be lessened by 18 the challenged activity.”) 19 B. Causation and Redressability 20 “A showing of procedural injury lessens a plaintiff's burden on the last two prongs 21 of the Article III standing inquiry, causation and redress[a]bility.” Salmon Spawning & 22 Recovery All. v. Gutierrez, 545 F.3d 1220, 1226 (9th Cir. 2008). To satisfy the causation 23 and redressability prongs, “[s]uch a litigant need only demonstrate that he has a procedural 24 right that, if exercised, could protect his concrete interests and that those interests fall 25 within the zone of interests protected by the statute at issue.” Nat. Res. Def. Council v. 26 Jewell, 749 F.3d 776, 783 (9th Cir. 2014) (cleaned up). 27 28 1 1. Plaintiffs’ Declarations Establish Standing 2 The Center submits four declarations from of its members6 to establish standing. 3 See Docs. 66-2; 66-5; 66-6; 66-7. In one declaration, Center member Randy Serraglio 4 averred that: he has lived in Tucson, Arizona, since 1990; he has hiked, birded, and done 5 photography several times in the Coronado National Memorial within the past two years; 6 while visiting the Memorial he hopes for the opportunity to observe rare and vulnerable 7 species including the Chiricahua leopard frog, jaguar, Gila chub, and Mexican spotted owl; 8 knowing that he may come across them enhances his enjoyment of time in this area; he 9 plans to revisit a number of sites in the Coronado National Forest during migration and 10 breeding season in the coming years; his use and enjoyment of the borderlands has been 11 degraded in recent years by the effects of the increased amount of border enforcement 12 activities at the border; where he expects to see vast, pristine vistas of deserts, grasslands, 13 forests, and mountains, they are instead broken up by 18-and-30-foot high border walls, 14 extremely tall surveillance towers, equipment yards, badly constructed and eroding roads, 15 and other ugly scars on the landscape; and, the Border Patrol has recently announced the 16 start of new construction in the Memorial itself, which will wall off and eliminate one of 17 the few remaining jaguar corridors that cross the border and destroy the scenic solitude of 18 the southern terminus of the Arizona National Scenic Trail. (Doc. 66-6 at 2, 4-7) 19 Congressman Grijalva’s declaration was also submitted to the Court. See Doc. 66- 20 3. The Congressman averred that: he currently resides in Tucson, Arizona; he is injured 21 when federal agencies fail to comply with federal environmental laws that are necessary to 22 protect his property, health, and the environment; border security activities, which include 23 physical barriers, increased border agents, road construction not associated with border 24 wall construction, helicopter flights, lighting, and other actions have resulted in significant 25 changes in the border region; he has been harmed by agencies’ failures to comply with 26 NEPA and other federal laws; border activities stand to cause imminent harm to his interest 27

28 6 The Center submits six declarations in total; however, only four declarations indicate that the declarants are Center members. 1 in seeing intact desert ecosystems, listening for birds, and observing wildlife along the 2 southern border; in January 2020, he visited Organ Pipe Cactus National Monument and 3 witnessed a current construction area; in February 2020, the Department conducted 4 blasting on the site resulting in the potential destruction of bone fragments dating back to 5 the 1600’s; he also visited Quitobaquito Springs where certain areas were cut down 6 exposing and destroying ancient artifacts; he noticed groundwater extraction at various 7 areas within the Organ Pipe National Park; and he plans on re-visiting Organ Pipe Cactus 8 National Monument along with other border areas, as soon as this Fall. Id. at 2-10. 9 These declarations demonstrate that Plaintiffs use specific affected areas of southern 10 borderlands where Defendants have been permitted to conduct operations, these are areas 11 to which Plaintiffs intend to return, and Plaintiffs’ aesthetic and recreational interests in the 12 affected areas will be diminished by unchecked border-enforcement activity or agency 13 failure to conduct supplemental programmatic environmental analysis. In addition to 14 demonstrating Plaintiffs’ injuries in fact, the declarations also establish that compliance 15 with NEPA and the ESA could protect Plaintiffs’ aesthetic and recreational interests in 16 specific borderland areas. 17 Defendants’ proposed standing requirement is too restrictive for the claims at hand. 18 See Doc. 70 at 20-25. It is true that a “deprivation of a procedural right without some 19 concrete interest that is affected by the deprivation—a procedural right in vacuo—is 20 insufficient to create Article III standing.” (Doc. 70 at 21) However, Defendants ignore 21 the fact that Plaintiffs have identified, in great detail, aesthetic and recreational interests 22 that could be affected by their failure to comply with NEPA and the ESA. Similar 23 arguments attacking an organization’s ability to bring environmental claims have been 24 addressed and dismissed by the United States Court of Appeals for the Ninth Circuit. See 25 Cottonwood Env't L. Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1079-80 (9th Cir. 2015) 26 (rejecting agency’s argument that the plaintiff lacked standing because it failed to challenge 27 discrete agency action that would cause direct injury); WildEarth Guardians v. U.S. Dep't 28 of Agric., 795 F.3d 1148, 1155 (9th Cir. 2015) (finding that plaintiff environmental 1 organization could challenge a failure to update a programmatic environmental impact 2 statement through its member’s assertion of recreational and aesthetic injury to a specific 3 impacted geographic area); Idaho Conservation League v. Mumma, 956 F.2d 1508, 1515– 4 18 (9th Cir.1992) (holding that plaintiffs had standing to challenge a non-site-specific 5 environmental impact statement that caused an injury in fact). Because Mr. Serraglio and 6 Congressman Grijalva would have standing to bring the NEPA and ESA claims on their 7 own, and the Center also satisfies the other associational standing requirements, the Center 8 and Congressman Grijalva have standing to proceed to the merits of their claims. 9 II. NEPA Violation 10 Plaintiffs argue that Defendants violated NEPA by failing to issue a supplemental 11 environmental impact statement despite the presence of factors requiring supplementation. 12 (Doc. 66 at 25-39). Plaintiffs also contend that Defendants violated NEPA by failing to 13 take a “hard look” at the environmental consequences before withdrawing from the 1994 14 and 2001 programmatic environmental impact statements in their entirety. Id. at 40-46. 15 Defendants argue that their decision to withdraw from programmatic environmental impact 16 statements is unreviewable and that there is no ongoing major federal action which requires 17 programmatic environmental supplementation. (Doc. 70 at 25-37) 18 After thorough review of the Administrative Record, the Court finds that there is 19 ongoing major federal action in the form of southern-border enforcement activity, and that, 20 at the time, Defendants violated NEPA by failing to take a “hard look” before deciding to 21 conduct environmental analysis at the project-level and prior to withdrawing from 22 programmatic environmental impact statements altogether. The Administrative Record is 23 devoid of information demonstrating Defendants adequately identified and evaluated any 24 adverse environmental impacts of their proposed action before implementing their new 25 strategy. The Court addresses Defendants’ arguments in the order of impact on its decision. 26 A. Statutory Requirements 27 NEPA has twin aims: It places an obligation on agencies to “consider every 28 significant aspect of the environmental impact of a proposed action,” and “it ensures that 1 the agency will inform the public that it has indeed considered environmental concerns in 2 its decision[-]making process.” Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 3 462 U.S. 87, 97 (1983). As part of the decision-making process, NEPA requires federal 4 agencies to prepare an environmental impact statement for “major Federal actions 5 significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). 6 The environmental impact statement must discuss “the environmental impact of the 7 proposed action” and include alternatives to the action. Id. 8 “The subject of postdecision supplemental environmental impact statements is not 9 expressly addressed in NEPA.” Marsh v. Oregon Nat. Res. Council, 490 U.S. 360, 370 10 (1989). “Preparation of such statements, however, is at times necessary to satisfy the Act's 11 ‘action-forcing’ purpose.” Id. The Council on Environmental Quality (“CEQ”), which 12 issues guidance to assist federal agencies in understanding and complying with NEPA, 13 requires agencies to supplement environmental impact statements in certain circumstances. 14 Id. at 372-73. Federal agencies must prepare supplements to either draft or final 15 environmental impact statements if: “(i) [t]he agency makes substantial changes in the 16 proposed action that are relevant to environmental concerns; or (ii) [t]here are significant 17 new circumstances or information relevant to environmental concerns and bearing on the 18 proposed action or its impacts.” 40 C.F.R. § 1502.9(c) (1978); Marsh, 490 U.S. at 372. 19 “[S]upplementation is necessary only if there remains major Federal action to occur[.]” 20 Norton v. S. Utah Wilderness All., 542 U.S. 55, 73 (2004). “[I]n the context of reviewing 21 a decision not to supplement an [environmental impact statement], courts should not 22 automatically defer to the agency's express reliance on an interest in finality without 23 carefully reviewing the record and satisfying themselves that the agency has made a 24 reasoned decision based on its evaluation of the significance—or lack of significance—of 25 the new information.” Marsh, 490 U.S. at 378. 26 1. Ongoing Major Federal Action 27 Defendants argue that no major federal action remains which requires 28 supplementation, that there has never been a “southern border enforcement program,” and 1 that Plaintiffs fail to identify any program that continues to rely on their original 2 environmental impact statement. (Doc. 70 at 28-37) Plaintiffs argue that Defendants 3 continue to perform the same border-enforcement activity that was analyzed in their initial 4 environmental impact statement and that the reorganization of border enforcement 5 agencies does not remove the agencies’ responsibility to supplement their programmatic 6 analysis. (Doc. 73 at 11-14) Plaintiffs also argue that the Administrative Record 7 demonstrates Defendants’ long reliance on the initial and supplemental environmental 8 impact statements and that the cumulative environmental impacts of agency action can only 9 be adequately addressed through a programmatic analysis. Id. at 12-14 10 This Court has previously concluded that the requirement of an environmental 11 impact statement is fact based rather than guided by superficial program labels. See Doc. 12 40 at 3. Until recently, the CEQ defined “major federal action” to include “new and 13 continuing activities, including projects and programs entirely or partly financed, assisted, 14 conducted, regulated, or approved by federal agencies; [and] new or revised agency rules, 15 regulations, plans, policies, or procedures; and legislative proposals.” 40 C.F.R. 16 § 1508.18(a) (1978). The Supreme Court has ruled that CEQ's interpretation of NEPA is 17 entitled to substantial deference and that its regulations are binding on federal agencies. 18 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 355-56 (1989). 19 Here, the Administrative Record demonstrates that since 1989, there has been major 20 federal action in the form of border-enforcement activity along a 50-mile-wide border 21 corridor in four states, including Arizona. A.R. at 15, 268-73. Defendants initially prepared 22 individual, site-specific environmental assessments to comply with NEPA. Id. at 20. But 23 in 1992, the agencies changed course and elected instead to prepare programmatic 24 environmental analysis, as the number of their projects increased, public resource agencies 25 realized the geographic scope of their work, and concerns about cumulative environmental 26 impacts arose. Id. 27 The 1994 environmental impact statement discussed the clearing of approximately 28 2,500 acres of wildlife habitat for joint agency activity and predicted more than 3,000 1 additional acres of wildlife habitat would be impacted by their actions over the following 2 five years. A.R. at 4; 114. The 2001 supplemental environmental impact statement 3 estimated that anticipated infrastructure development would affect an additional 6,900 4 acres of wildlife habitat. Id. at 309; 361. The anticipated level of environmental impact 5 from border-enforcement activity in 2001 to 2005 was nearly double the environmental 6 impact of border-enforcement activity from 1989 to 2000. Id. at 310. 7 Additionally, the Administrative Record is replete with examples of expanding 8 federal action in the form of border-enforcement activity. For example, the June 2001 9 supplemental environmental impact statement and its Record of Decision indicate:

10 The National Drug Control Strategy (in addition to the INS National, 11 regional and field strategies), . . . has focused attention on the southwestern United States. The number of [United States Border Patrol] agents is 12 expected to significantly increase during the next 10 years. In order to 13 accommodate these new agents, support staff, resources, and continued assistance from JTF-6 would be sought. Infrastructure would need to be 14 constructed or improved to ensure that these agents can effectively and 15 efficiently perform their duties. Support would also be needed in training, intelligence gathering, detecting and deterring illegal activities, and 16 administrative functions such as transporting evidentiary materials seized by 17 USBP during drug busts. INS must provide this support to its law enforcement arm (USBP) in order for the USBP to effectively implement the 18 strategy for gaining and maintaining control of the border. An integral part 19 of providing these means to effectively operate is the assistance INS receives from the DoD, particularly in regards to JTF-6 support missions. 20 . . . .

21 The National Drug Control Strategy . . . projects up to 1,000 new USBP 22 agents should be hired over the next 10 years. Filling these new positions would increase employment, income and sales within local and regional 23 economies both directly and indirectly. The magnitude of these effects would 24 depend upon the size and economic condition of the community affected, the number of positions filled, and the number of local persons hired to fill the 25 positions. As discussed in Chapter 1 of this [Supplemental Programmatic 26 Environmental Impact Statement], these new agents will require new and/or upgraded infrastructure (e.g., roads, fences, ISIS, etc.) in order to effectively 27 perform their duties. 28 . . . . 1 The proposed action and preferred alternative under this FSPEIS is to implement full JTF-6 support to INS' mission to gain and maintain control of 2 the southwestern U.S./Mexico border. The INS will enhance its operation, 3 programs and staff through increases in agents' presence, facilities, and infrastructure during the next 5 years, as specified in the Illegal Immigration 4 Reform and Immigrant Responsibility Act (IIRIRA) of 1996, as amended. In 5 order to accommodate these new initiatives it will be necessary to provide infrastructure support to ensure that agents will be able to effectively and 6 efficiently perform their duties. 7 8 Id. at 288, 370, 487. 9 This activity unquestionably constitutes “new and continuing activities, including 10 projects and programs entirely or partly financed, assisted, conducted, regulated, or 11 approved by federal agencies.” See 40 C.F.R. § 1508.18(a) (1978). Accordingly, the Court 12 finds that there is ongoing major federal action in the form of border-enforcement activity 13 along the 50-mile-wide southern border corridor where Defendants operate. 14 2. Defendants Failed to Conduct “Hard Look” 15 Notwithstanding the fact that there is ongoing major federal action in the form of 16 border-enforcement activity, Defendants argue that they maintained NEPA compliance by 17 conducting environmental assessments at the site- and project-specific level. (Doc. 70 at 18 28-32) Plaintiffs argue that Defendants violated NEPA by failing to take a “hard look” at 19 whether significant changes to border-enforcement activity, its circumstances, and 20 information relevant to the activity’s environmental impacts, demands supplementation of 21 the 2001 programmatic environmental analysis. (Doc. 73 at 11, 15-19) Plaintiffs contend 22 that absent sufficient explanation in the Administrative Record demonstrating that 23 Defendants took a “hard look” at significant border-enforcement changes and new 24 information, Defendants have acted in an arbitrary and capricious manner. Id. 25 NEPA requires federal agencies to take a “hard look” at the potential environmental 26 consequences of a proposed action, “even after a proposal has received initial approval.” 27 Marsh, 490 U.S. at 374; N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 28 1075 (9th Cir. 2011). “If an agency decides not to prepare an environmental impact 1 statement, it must supply a convincing statement of reasons to explain why a project’s 2 impact[s] are insignificant.” Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 3 1208, 1212 (9th Cir. 1998) (quotation marks and citation omitted). “The statement of 4 reasons is crucial to determining whether the agency took a ‘hard look’ at the potential 5 environmental impact of a project.” Id. The decision not to prepare a supplemental 6 environmental impact statement is controlled by the “arbitrary and capricious” standard. 7 Marsh, 490 U.S. at 376. 8 In determining whether an agency’s decision to forego supplemental environmental 9 analysis was arbitrary or capricious, a court “must consider whether the decision was based 10 on a consideration of the relevant factors and whether there has been a clear error of 11 judgment.” Marsh, 490 U.S. at 360. “A court will uphold a decision not to supplement an 12 environmental analysis if the decision is reasonable.” Oregon Nat. Res. Council Action v. 13 U.S. Forest Serv., 445 F. Supp. 2d 1211, 1225–26 (D. Or. 2006). “Reasonableness depends 14 on the environmental significance of the new information, the probable [accuracy] of the 15 information, the degree of care with which the agency considered the information and 16 evaluated its impact, and the degree to which the agency supported its decision not to 17 supplement with a statement of explanation or additional data.” Stop H-3 Ass'n v. Dole, 18 740 F.2d 1442, 1464 (9th Cir. 1984). “If the adverse environmental effects of the proposed 19 action are adequately identified and evaluated, the agency is not constrained by NEPA from 20 deciding that other values outweigh the environmental costs.” Robertson, 490 U.S. at 350. 21 Plaintiffs assert that Defendants violated NEPA because they failed to timely 22 prepare, or sufficiently evaluate the need for, a supplemental environmental impact 23 statement in light of substantial expansion of border-enforcement activity and the 24 designation of new or revised critical habits for threatened or endangered species that live 25 within the border-enforcement area. (Doc. 73 at 15) Plaintiffs support these assertions 26 with approximately fifty undisputed statements of fact demonstrating, for example, that 27 between “2006 to 2011, the Border Patrol nearly doubled the number of agents on patrol, 28 constructed hundreds of miles of border fences, and installed a variety of surveillance 1 equipment,” and that “[s]ince September 11, 2001, and the creation of DHS, annual 2 appropriations [to southern-border-enforcement activity] increased . . . by an additional 3 170 percent, to $3.8 billion in FY2015.” (Doc. 65 at ¶¶ 92, 94). Plaintiffs also highlight 4 undisputed statements of fact which demonstrate that there was a large number of new or 5 revised critical habitat designations for threatened or endangered species within the 6 southern border enforcement corridor since 2001. Id. at ¶¶ 120-148. 7 Plaintiffs’ undisputed facts, especially in light of their cumulative effect, constitute 8 triggering events for which Defendants should have contemporaneously considered and 9 evaluated the need for supplemental environmental analysis. See Friends of the Clearwater 10 v. Dombeck, 222 F.3d 552, 558 (9th Cir. 2000) (finding federal agency violated NEPA by 11 failing to prepare, or sufficiently consider and evaluate the need for, a supplemental 12 environmental impact statement in light of seven new sensitive species designations and 13 recognition that standards on which the original impact statement relied were inadequate); 14 In re Operation of Missouri River Sys. Litig., 516 F.3d 688, 693 (8th Cir. 2008) (cleaned 15 up) (reiterating that “[a] substantial change that requires an SEIS under 40 C.F.R. § 16 1502.9(c)(1)(l) is one that is not qualitatively within the spectrum of alternatives that were 17 discussed in a prior FEIS.”). While Defendants’ undisputed statements of fact demonstrate 18 that they performed individual, site-specific environmental assessments for some of the 19 triggering events that Plaintiffs raise, see Doc. 71 at ¶¶ 47-48, 56, it is of no consequence 20 that they elected to conduct project-level assessments instead of issuing a supplemental 21 statement if they failed to contemporaneously articulate a reasonable explanation for their 22 decision. See Nw. Env't Def. Ctr. v. Bonneville Power Admin., 477 F.3d 668, 690 (9th Cir. 23 2007) (finding federal agency acted in arbitrary and capricious manner when the agency 24 failed to cogently explain its decision, the record failed to indicate that the decision was 25 the result of a rational decision-making process, and the agency failed to consider the 26 purposes of the environmental statute which required it to make a reasoned decision.). 27 28 1 The Administrative Record provides only limited clues and post-hoc analysis7 to 2 justify Defendants’ decision to forego supplemental programmatic environmental analysis 3 and instead conduct individual, site-specific environmental assessments on a project level 4 for border-enforcement activity. For example, the June 2001 final supplemental 5 environmental impact statement and the Department’s March 2019 withdrawal 6 determination state:

7 In addition, the NEPA team felt that the scope of the original Draft SPEIS 8 was so broad (covering independent activities of two Federal agencies), that the document caused confusion among the general public. Consequently, the 9 NEPA team decided to refocus the scope of the SPEIS to address just the 10 support provided by JTF-6 to INS and the ISIS program within the 50-mile corridor and to resubmit the revised Draft SPEIS to the public for review. 11

12 A.R. at 389.

13 U.S. Customs and Border Protection (CBP), a component of the Department 14 of Homeland Security (DHS) and Joint Task Force-North (JTF-N), a Joint Command of the Department of Defense (DoD), have evaluated their 15 compliance with the National Environmental Policy Act (NEPA) for 16 activities now being undertaken by and in support of federal law enforcement agencies in the four states bordering Mexico. Actions currently taken by 17 either CBP or JTF-N comply with NEPA through individual project analyses. CBP and JTF-N NEPA compliance does not rely on the Records of Decision 18 and the supporting joint Programmatic Environmental Impact Statement 19 (PEIS) of 1994 or the Supplemental Programmatic EIS (SPEIS) of 2001, documents created by predecessor entities that no longer exist. 20 Supplementing the documents is of no current value and would be an unwise 21 use of resources.

22 A.R. at 8832. 23 24 7 See Sierra Club v. Bosworth, 510 F.3d 1016, 1026 (9th Cir. 2007) (cleaned up) (“Post- 25 hoc examination of data to support a pre-determined conclusion is not permissible because this would frustrate the fundamental purpose of NEPA, which is to ensure that federal 26 agencies take a ‘hard look’ at the environmental consequences of their actions, early enough so that it can serve as an important contribution to the decision making process.”); 27 Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir.1996) (“[P]ost-decision information . . . may not be advanced as a new rationalization either for 28 sustaining or attacking an agency's decision.”). 1 The Court finds this limited justification—among thousands of pages of 2 environmental data and administrative records—fails to demonstrate that Defendants took 3 a “hard look” and made a reasoned decision to forego, and ultimately withdraw from, 4 supplemental programmatic environmental impact statements despite the presence of 5 significant triggering events since the statement was last supplemented in 2001. The 6 Administrative Record fails to demonstrate that Defendants identified and evaluated the 7 environmental consequences of their decision(s) to switch from conducting site-specific 8 assessments to issuing programmatic impact statements to going back to conducting site- 9 specific assessments in relation to border-enforcement activity. Accordingly, the Court 10 finds the decisions in question were arbitrary and capricious and grants Plaintiffs’ summary 11 judgment motion on the issue. 12 III. ESA Violation 13 In a related claim, Plaintiffs argue that despite the presence of newly listed species 14 and revised critical habitat designations since 2001, Defendants have failed to initiate and 15 complete consultation with the FWS to ensure continuing border-enforcement activity does 16 not jeopardize the existence of the species or adversely affect their designated critical 17 habitats. (Doc. 66 at 47) Perplexingly, Plaintiffs assert that Defendants have a duty to 18 conduct Section 7 ESA consultation on the NEPA supplementation that they seek to 19 compel in this case. (Doc. 73, n.4 at 15) Defendants argue that Plaintiffs lack standing to 20 bring their claim; Defendants cannot be in violation of the ESA in connection with a future 21 NEPA analysis; Plaintiffs have failed to provide a valid 60-day notice of intent to sue, and; 22 a court-ordered NEPA analysis would not require ESA consultation. (Doc. 75 at 15-22) 23 Assuming arguendo that Plaintiffs have standing to sue for a prospective Section 7 24 violation and that their April 2017 notice sufficiently informed Defendants of the claim at 25 hand, the Court finds that Plaintiffs fail to sufficiently demonstrate that the ESA mandates 26 programmatic FWS consultation and that a hypothetical NEPA supplementation would 27 trigger such a requirement. 28 1 A. Statutory Requirements 2 In National Ass’n of Home Builders v. Defenders of Wildlife, the Supreme Court 3 summarized the background and scope of the ESA. 551 U.S. 644 (2007). It observed:

4 The Endangered Species Act of 1973 . . . is intended to protect and conserve 5 endangered and threatened species and their habitats. Section 4 of the ESA directs the Secretaries of Commerce and the Interior to list threatened and 6 endangered species and to designate their critical habitats. The Fish and 7 Wildlife Service (FWS) administers the ESA with respect to species under the jurisdiction of the Secretary of the Interior, while the National Marine 8 Fisheries Service (NMFS) administers the ESA with respect to species under 9 the jurisdiction of the Secretary of Commerce.

10 Section 7 of the ESA prescribes the steps that federal agencies must take to 11 ensure that their actions do not jeopardize endangered wildlife and flora. Section 7(a)(2) provides that [e]ach Federal agency shall, in consultation 12 with and with the assistance of the Secretary [of Commerce or the Interior], 13 insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species 14 or threatened species.

15 Id. at 651–52 (citations and quotation marks omitted). ESA implementing regulations 16 broadly define “agency action” to constitute “all activities or programs of any kind 17 authorized, funded, or carried out, in whole or in part, by Federal agencies in the United 18 States” including, but not limited to, “actions directly or indirectly causing modifications 19 to the land, water, or air.” 50 C.F.R. § 402.02(d); Karuk Tribe of California v. U.S. Forest 20 Serv., 681 F.3d 1006, 1020-21 (9th Cir. 2012). 21 1. Programmatic Consultation Not Required 22 Plaintiffs cite a number of cases to support their contention that Section 7 ESA 23 consultation—on a programmatic basis—is required for Defendants’ ongoing border- 24 enforcement activity. See Docs. 66 at 46-47; 73 at 21-22. However, neither the statute 25 itself nor the case law surrounding the ESA mandate such broad consultation, where 26 individual, site-specific consultation sufficiently analyzes the environmental impact of 27 proposed agency action. The cases Plaintiffs cite are based upon fact scenarios that are 28 1 vastly dissimilar to the facts at hand. See N. Plains Res. Council v. U.S. Army Corps of 2 Eng’rs, 454 F. Supp. 3d 985, 987-89 (D. Mont. 2020) (addressing agency’s decision to 3 reissue nationwide permit without first consulting with the Services); Env’t Def. Ctr. v. 4 Bureau of Ocean Energy Mgmt., No. CV 16-8418 PSG, 2018 WL 5919096, at *1 (C.D. 5 Cal. Nov. 9, 2018) (addressing allegation that agencies violated ESA by failing to consult 6 with the Services about the effects of off-shore fracking on wildlife before issuing a 7 programmatic environmental assessment); Cottonwood Env’t Law Ctr. v. U.S. Forest Serv., 8 789 F.3d 1075, 1077-80 (9th Cir. 2015) (addressing allegation that agency violated ESA 9 by failing to reinitiate consultation with FWS after FWS revised its critical habit 10 designation for Canada lynx); Greenpeace v. Nat’l Marine Fisheries Serv., 55 F. Supp. 2d 11 1248, 1253-58 (W.D. Wash. 1999) (addressing allegation that agency’s no-jeopardy 12 conclusion concerning mackerel fishery in biological opinion was arbitrary and 13 capricious). 14 Here, the facts demonstrated by the Administrative Record fail to involve the 15 reissuance of nationwide permits, the optional requirement to consult with the Services 16 before issuing initial environmental assessments, a failure to reinitiate consultation after a 17 determination that critical habitat information was improperly formulated, or any claims 18 that challenge an agency’s conclusion based on questionable information contained in 19 biological opinions. Plaintiffs propose that Defendants violated the ESA because they 20 failed to initiate consultation with the FWS in conjunction with a supplemental 21 programmatic environmental analysis that this Court declines to order. See infra pp. 20- 22 22. Section 7(a)(2) of the ESA “commands each federal agency to insure that any action 23 authorized, funded, or carried out by the agency is not likely to jeopardize the continued 24 existence of any endangered species . . . or result in the destruction or adverse modification 25 of habitat of such species.” Defs. of Wildlife v. Zinke, 856 F.3d 1248, 1252 (9th Cir. 2017) 26 (emphasis added) (quotation marks and citation omitted). Such non-existent NEPA 27 supplementation fails to constitute agency action even under the broadest interpretation of 28 the term. 1 Moreover, the Administrative Record indicates that in 2001, Defendants did comply 2 with Section 7 ESA requirements by issuing biological assessments on site-specific 3 operations and that they made a commitment to coordinate with the FWS to address 4 potential impacts to threatened or endangered species during the preplanning stages of, or 5 prior to undertaking, site-specific activities. A.R. at 366-67. The Administrative Record 6 also indicates that Defendants addressed a significant number of the newly designated or 7 revised critical habitat designations that Plaintiffs now challenge on a project-specific 8 basis. See e.g., A.R. at 618 (Mexican Spotted Owl); 1150-51 (Jaguar); 2295 (Southwestern 9 Willow Flycatcher); 3064 (Gila Chub); 3284 (Chiricahua Leopard Frog); 6545 (Arroyo 10 Toad). The Court credits Defendants’ uncontested statement of fact that explains why the 11 Administrative Record fails to contain documentation for each instance of newly 12 designated critical habitat that Plaintiffs raise. See Doc. 71, ¶ 55 at 20. Accordingly, the 13 Court finds that Defendants have not violated Section 7(a)(2) of the ESA by failing to 14 consult with the FWS regarding prospective NEPA supplementation and grants 15 Defendants’ cross-motion for summary judgment on the issue. 16 IV. Remedy 17 To remedy a procedural NEPA violation, Plaintiffs request that the Court grant their 18 motion, vacate the determination to withdraw from programmatic environmental analysis 19 and remand the matter back to Defendants with instructions to supplement their 20 programmatic environmental impact statement by a date certain. (Doc. 73 at 25) 21 Defendants request that the Court deny Plaintiffs’ motion, grant their cross-motion for 22 summary judgment, and dismiss Plaintiffs’ complaint with prejudice. (Docs. 70 at 46; 75 23 at 23) The issue for the Court to determine is whether injunctive relief is the appropriate 24 remedy for Defendants’ NEPA violation. 25 In Monsanto Co. v. Geertson Seed Farms, the Supreme Court outlined the 26 appropriate standard for injunctive relief for a NEPA violation. 561 U.S. 139 (2010). 27 It instructed:

28 1 [A] plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it 2 has suffered an irreparable injury; (2) that remedies available at law, such as 3 monetary damages, are inadequate to compensate for that injury; 3) that, considering the balance of hardships between the plaintiff and defendant, a 4 remedy in equity is warranted; and (4) that the public interest would not be 5 disserved by a permanent injunction. The traditional four-factor test applies when a plaintiff seeks a permanent injunction to remedy a NEPA violation. 6

7 Id. at 156-57 (quotation marks and citations omitted). The court also advised that “[a]n 8 injunction should issue only if the traditional four-factor test is satisfied[,]” id. at 157, and 9 that injunctive relief “is a drastic and extraordinary remedy, which should not be granted 10 as a matter of course[,]” id. at 165. 11 In addition to the Supreme Court’s guidance, the Ninth Circuit has determined that 12 “if extra-record evidence shows that an agency has rectified a NEPA violation after the 13 onset of legal proceedings, that evidence is relevant to the question of whether relief should 14 be granted.” Friends of the Clearwater, 222 F.3d at 560; see also Warm Springs Dam Task 15 Force v. Gribble, 621 F.2d 1017, 1025-26 (9th Cir. 1980) (finding that while agency’s 16 actions did not comport with NEPA, the deficiency had been cured by an extensive post- 17 trial study which reaffirmed the foundation of a prior supplemental impact statement). The 18 court has also concluded that “[e]ven when a district court finds that a violation of [NEPA] 19 has occurred, in unusual circumstances an injunction may be withheld, or . . . limited in 20 scope,” California ex rel. Lockyer v. U.S. Dep't of Agric., 575 F.3d 999, 1020 (9th Cir. 21 2009), and “[i]n determining the scope of an injunction, a district court has broad latitude, 22 and it must balance the equities between the parties and give due regard to the public 23 interest,” Geertson Seed Farms v. Johanns, 570 F.3d 1130, 1136 (9th Cir. 2009). 24 Curiously, Plaintiffs have waited over fifteen years to bring claims that address 25 procedural NEPA violations, which primarily occurred in 2001 and in the immediate years 26 thereafter. With the exception of Defendants’ decision to withdraw from programmatic 27 environmental analysis in 2019, Plaintiffs complain of agency non-activity that has failed 28 to result in any demonstrated adverse environmental consequences due, in part, to the fact 1 that Defendants complied with NEPA requirements through individual, project-specific 2 environmental assessments. See e.g., A.R. at 3730-4101, 4127-4531, 5265-5354, 6348- 3 6433, and 14780-14971. As a result of this litigation, Defendants have also thoroughly 4 evaluated and explained the “hard look” criteria that the Court determined was absent from 5 the Administrative Record when the agencies made their decisions years ago. See Hass 6 Declarations, Docs. 49 at 3-29; 54-3 at 3-6; and 62-1 at 6-8. Defendants’ recent activity 7 has mitigated any prospective harm that Plaintiffs seek to remedy, and the Administrative 8 Record fails to indicate detrimental environmental consequences as a result of Defendants’ 9 NEPA violations. 10 In many ways, the claims at hand were best suited for litigation and injunctive relief 11 more than a decade ago. To grant Plaintiffs’ request for an injunction at this point would 12 be duplicative, counter-intuitive, and a misallocation of agency resources. The interests of 13 the public would not be served by updating environmental impact statements which have 14 since been withdrawn and that no longer serve as guideposts for future agency activity. 15 While Defendants’ failure to contemporaneously document justification for their internal 16 decisions constitute NEPA violations, such failure, in this case, does not necessitate 17 injunctive relief. Accordingly, Plaintiffs’ request for injunctive relief is denied, and this 18 case is closed. 19 20 21 22 23 24 25 26 27 28 1 IT IS ORDERED: 2 1. Plaintiffs’ Motion for Summary Judgment (Doc. 63) is GRANTED IN PART 3 AND DENIED IN PART. The Court GRANTS Plaintiffs’ Motion for Summary 4 Judgment on their NEPA claim, and DENIES Plaintiffs’ Motion for Summary 5 Judgment on their ESA claim. 6 2. Defendants’ Cross-Motion for Summary Judgment (Doc. 69) is GRANTED IN 7 PART AND DENIED IN PART. The Court GRANTS Defendants’ Cross-Motion 8 for Summary Judgment on their ESA claim, and DENIES Defendants’ Cross- 9 Motion for Summary Judgment on their NEPA claim. 10 3. Plaintiffs’ request for injunctive relief is DENIED. 11 4. The Clerk of Court is instructed to change the name of Defendant Secretary of 12 Homeland Security to Alejandro Mayorkas on the case caption, issue judgment 13 in accord with the aforementioned instructions, and close this case. 14 15 Dated this 20th day of August, 2021. 16 17 Lot, a seesont 18 Honorable Cin . Jofgenson United States District Judge 19 20 21 22 23 24 25 26 27 28

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