La Posta Band of Diegueno Mission Indians of the La Posta Reservation v. Trump

• Court: District Court, S.D. California
• Decided: December 16, 2020
• Docket: 3:20-cv-01552
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LA POSTA BAND OF DIEGUEÑO Case No.: 3:20-cv-01552-AJB-MSB MISSION INDIANS OF THE LA 12 POSTA RESERVATION, ON BEHALF ORDER: 13 OF ITSELF AND ON BEHALF OF ITS MEMBERS AS PARENS PATRIAE, (1) GRANTING PLAINTIFFS’ 14 Plaintiffs, MOTIONS TO SEAL, (Doc. Nos. 41, 15 v. 49);

16 DONALD J. TRUMP, PRESIDENT OF (2) DENYING DEFENDANTS’ EX THE UNITED STATES, IN HIS 17 PARTE MOTION FOR LEAVE TO OFFICIAL CAPACITY, et al., FILE A SUR-REPLY, (Doc. No. 57); 18 Defendants. AND 19 (3) DENYING PLAINTIFFS’ SECOND 20 MOTION FOR TEMPORARY 21 RESTRAINING ORDER, (Doc. No. 40)

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28 1 Presently before the Court are: (1) the La Posta Band of the Diegueño Mission 2 Indians’ (“La Posta” or “the Tribe”) motions to seal, (Doc. Nos. 41, 49); (2) La Posta’s 3 second motion for a temporary restraining order (“TRO”), (Doc. No. 40); and (3) 4 Defendants Donald J. Trump, Mark T. Esper, Chad F. Wolf, and Todd T. Semonite’s 5 (“Defendants” or “the Government”) ex parte motion for leave to file a sur-reply, (Doc. 6 No. 57). For the reasons set forth below, the Court (1) GRANTS La Posta’s motions to 7 seal, (Doc. Nos. 41, 49); (2) DENIES La Posta’s second motion for TRO, (Doc. No. 40); 8 and (3) DENIES Defendants’ ex parte motion for leave to file a sur-reply, (Doc. No. 57). 9 I. FACTUAL BACKGROUND 10 The facts of this case were recounted at length in this Court’s September 9, 2020 11 order. (Doc. No. 26.) As such, the Court will incorporate those facts into this order. For the 12 purposes of this instant motion, La Posta presents the following additional facts to support 13 their second request for a TRO and preliminary injunction: 14 La Posta’s traditional territory, which encompasses the areas impacted by barrier 15 construction within eastern San Diego and Imperial Counties (“Project Area”), is sacred to 16 the Tribe. (See Second Declaration (“Decl.”) of Cynthia Parada (“Second Parada Decl.”) 17 ¶ 11.) Thomas Holm, the director of the Kumeyaay Historic Preservation Council, 18 “recently discovered that the El Centro section of the border wall cuts directly through a 19 sacred site in Davies Valley.” (Second Decl. of Thomas Holm (“Second Holm Decl.”) ¶ 4.) 20 The Davies Valley site features a “circle approximately 120 ft in diameter, marked clearly 21 with a perimeter of stones and containing rock cairns.” (Id. ¶¶ 3–4.) The circle is 22 surrounded by smaller circle features and trails. (Id.) On November 10, 2020, a Kumeyaay 23 group attempted to visit and pray at the site but Customs and Border Patrol (“CBP”) 24 officers did not allow access. (Id. ¶ 6.) The Tribe alleges other similar circle complexes 25 have been identified in the Project Area. (Id.) Additionally, Mr. Holm “encountered a site 26 about which contains a rock alignment that appears to be a Kumeyaay cultural site.” (Id. 27 ¶ 7.) The site allegedly contains numerous “ceramic sherds indicative of cremation vessels 28 within the site.” (Id.) 1 On November 17, 2020, CBP notified various Kumeyaay-affiliated tribes of an 2 “unanticipated discovery” in the El Centro Project site when a tribal cultural monitor 3 identified a Kumeyaay archaeological site adjacent to the newly constructed border wall in 4 a “laydown yard.” (Id. ¶ 8.) CBP identified three discoveries at this location: two “small 5 fire pits or roasting features” and one “possible cremation site.” (Second Decl. of Michelle 6 LaPena (“Second LaPena Decl.”) ¶ 5.) Tribal experts later visited the location and 7 identified 18 separate fire features “approximately 100m north of the wall and extending 8 south into the road adjacent to the border wall, indicating other features have already been 9 destroyed and obscured by construction.” (Second Holm Decl. ¶ 9; Second Parada Decl. 10 ¶ 8.) A forensic anthropologist inspected the site and found “two small bone fragments, 11 one 2 millimeters and one 6 millimeters, that could be human neck or face bones.” (Second 12 Holm Decl. ¶ 9, Ex. D.) 13 La Posta also maintains that the Project interferes with the Tribe’s ability to stargaze. 14 (Doc. No. 40-1 at 7.) The Tribe explains that astronomy is an integral part of Kumeyaay 15 religion and cultural practice, with tribal citizens stargazing throughout the Project Area. 16 (See Second Parada Decl. ¶¶ 13–14.) According to La Posta, the installation of lighting on 17 the border wall will cause light pollution that will hinder the Tribe’s ability to properly 18 stargaze. (Id.) 19 Defendants maintain as of the date of the filing of their opposition brief, the bollards 20 comprising the wall are completely installed for the El Centro A project (approximately 21 3.17 total miles), and approximately 14.3 of 15 miles are installed for the San Diego A 22 project. (See Second Decl. of Antoinette Gant (“Second Gant Decl.”) ¶ 8.) After the 23 expected completion of the bollards on December 21, 2020, Defendants plan to begin 24 construction of the “linear ground detection system” adjacent to the 20 miles of new barrier 25 construction. (Id.) Defendants have also yet to install security features, such as lighting, 26 cameras, and patrol roads in much of the Project Area. (Id.) Expected completion for the 27 Project is late June 2021. (Id. ¶ 6.) 28 II. PROCEDURAL HISTORY 1 La Posta first commenced this action on August 11, 2020. (Doc. No. 1.) The action 2 was accompanied by an ex parte motion for TRO and preliminary injunction. (Doc. Nos. 3 13–14.) The Court held a hearing on both motions and denied both motions on August 27, 4 2020. (Doc. No. 24.) La Posta subsequently appealed the Court’s decision to deny the 5 preliminary injunction to the Ninth Circuit. (Doc. No. 25.) On November 4, 2020, the Ninth 6 Circuit affirmed this Court’s denial of La Posta’s first motion for a preliminary injunction. 7 See La Posta Band of Diegueno Mission Indians of La Posta Reservation v. Trump, No. 8 20-55941, 2020 WL 6482173 (9th Cir. Nov. 4, 2020). Following the resolution of the 9 appeal, the parties jointly moved for, and the Court approved, a briefing schedule for the 10 filing of an Amended Complaint, as well as renewed motions for TRO and preliminary 11 injunction. (Doc. Nos. 37–38.) On November 24, 2020, La Posta filed their second motion 12 for TRO and preliminary injunction and accompanying motions to seal. (Doc. Nos. 40, 43.) 13 Pursuant to the parties’ joint briefing schedule, Defendants filed an opposition to both 14 motions on December 4, 2020. (Doc. Nos. 47–48.) La Posta replied on December 9, 2020. 15 (Doc. No. 55.) On December 11, 2020, Defendants filed an ex parte motion for leave to 16 file a sur-reply, (Doc. No. 57), and La Posta opposed the motion, (Doc. No. 58). Currently, 17 the hearing on La Posta’s motion for preliminary injunction is set for January 14, 2021. 18 (Doc. No. 45.) This order follows. 19 III. LA POSTA’S MOTIONS TO SEAL 20 The Court will first address La Posta’s motions to seal the following declarations 21 filed in connection with La Posta’s second motion for TRO and preliminary injunction: 22 • The Second Declaration of Thomas Holm, (Doc. No. 42); 23 • The Third Declaration of Thomas Holm, (Doc. No. 50); 24 • The Declaration of Carmen Lucas, (Doc. No. 51); 25 • The Declaration of Madeleine Hinkes, (Doc. No. 52); 26 • The Declaration of David Toler, (Doc. No. 53); 27 • The Third Declaration of Cynthia Parada, (Doc. No. 54); and 28 1 • The Declaration of Paul Enriquez, (Doc. Nos. 47-2, 48-2). 2 La Posta urges the sealing of the foregoing declarations because they contain 3 “confidential research” and exact locations of Kumeyaay sacred archaeological sites within 4 the area of construction. (Doc. Nos. 41, 49.) Because the declarations include photographs 5 and depictions of the locations of the sites, La Posta explains the public filing of these 6 declarations could cause the location to be looted or damaged by unknown individuals. 7 (Id.) The Tribe asks the Court to allow these declarations to be filed under seal to protect 8 the integrity of the sites and the items contained therein. 9 A. Legal Standard for Motions to Seal 10 All documents filed with the Court are presumptively public. See San Jose Mercury 11 News, Inc. v. U.S. Dist. Court, 187 F.3d 1096, 1103 (9th Cir. 1999) (“It is well-established 12 that the fruits of pretrial discovery are, in the absence of a court order to the contrary, 13 presumptively public.”). “Historically, courts have recognized a ‘general right to inspect 14 and copy public records and documents, including judicial records and documents.’” 15 Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon 16 v. Warner Commc’ns, Inc., 435 U.S. 589, 597 & n.7 (1978)). Two standards generally 17 govern requests to seal documents. See Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 677 18 (9th Cir. 2010): 19 [J]udicial records attached to dispositive motions [are treated] differently from 20 records attached to non-dispositive motions. Those who seek to maintain the secrecy of documents attached to dispositive motions must meet the high 21 threshold of showing that “compelling reasons” support secrecy. A “good 22 cause” showing under Rule 26(c) will suffice to keep sealed records attached to non-dispositive motions. 23 24 Kamakana, 447 F.3d at 1180 (citations omitted). The reason for the two different standards 25 is that “[n]ondispositive motions are often unrelated, or only tangentially related, to the 26 underlying cause of action, and, as a result, the public’s interest in accessing dispositive 27 28 1 materials does not apply with equal force to non-dispositive materials.” Pintos, 605 F.3d 2 at 678 (quotations omitted). 3 A party seeking to seal materials related to non-dispositive motions must show good 4 cause by making a “particularized showing” that “specific prejudice or harm will result” 5 should the information be disclosed. Fed. R. Civ. P. 26(c). “[B]road, conclusory allegations 6 of potential harm” will not suffice. Foltz, 331 F.3d at 1131. By contrast, under the 7 “compelling reasons” standard applicable to dispositive motions, the Court must balance 8 the competing interests of the public and the party who seeks to keep certain judicial 9 records secret. After considering these interests, “if the court decides to seal certain judicial 10 records, it must base its decision on a compelling reason and articulate the factual basis for 11 its ruling, without relying on hypothesis or conjecture.” Kamakana, 447 F.3d at 1178–79 12 (internal quotation marks, omissions, and citations omitted). The party seeking to seal a 13 judicial record bears the burden of meeting the “compelling reasons” standard. Id. at 1178; 14 Foltz, 331 F.3d at 1135. 15 While La Posta moves to seal documents based on the “good cause” standard, the 16 Court concludes the “compelling reasons” standard applies here. The Ninth Circuit has 17 clarified that the “compelling reasons” standard applies whenever the motion at issue “is 18 more than tangentially related to the merits of a case.” Center for Auto Safety v. Chrysler 19 Grp., LLC, 809 F.3d 1092, 1101 (9th Cir. 2016). In some instances, the proposed filing of 20 documents under seal in connection with motions for preliminary injunction—though such 21 motions are not dispositive—may be governed by the “compelling reasons” test. Id. at 22 1097–1101 (quoting Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998 F.2d 157, 161 23 (3d Cir. 1993)). In keeping with this principle, requests to seal documents relating to 24 motions for a preliminary injunction have been found by the Ninth Circuit to “more than 25 tangentially relate[] to the merits” because success on the motion for a preliminary 26 injunction could resolve a portion of the claims in the underlying complaint. See Center 27 for Auto Safety, LLC, 809 F.3d at 1102. Here, La Posta’s motion for TRO and preliminary 28 injunction is certainly “more than tangentially related to the merits of the case” because La 1 Posta’s Amended Complaint ultimately seeks injunctive relief that is not substantially 2 different than the relief requested in this instant motion. As such, the “compelling reasons” 3 standard governs the proposed sealing of the records. 4 B. Discussion 5 “In general, ‘compelling reasons’ sufficient to . . . justify sealing court records exist 6 when such ‘court files might . . . become a vehicle for improper purposes,’ such as the use 7 of records to gratify private spite, promote public scandal, circulate libelous statements, or 8 release trade secrets.” Kamakana, 447 F.3d at 1179 (quoting Nixon, 435 U.S. at 598). “The 9 mere fact that the production of records may lead to a litigant’s embarrassment, 10 incrimination, or exposure to further litigation will not, without more, compel the court to 11 seal its records.” Id. “The ‘compelling reasons’ standard is invoked even if the dispositive 12 motion, or its attachments, were previously filed under seal or protective order.” Id. at 13 1178–79. 14 Two compelling reasons exist to justifying the sealing of the aforementioned 15 declarations. First, the Court notes that locations of tribal cultural sites are kept confidential 16 by Kumeyaay tribes and revealed only to qualified recipients. (See Second Parada Decl. 17 ¶ 7.) La Posta explains the policy behind the confidentiality of archaeological and sacred 18 sites is “to protect them from physical and spiritual vandalism and looting. If the 19 confidential information in these declarations is publicly disclosed, it could be exploited, 20 causing harm to the Tribe. . . .” (Doc. No. 49 at 4.) 21 Second, sealing of the declarations is appropriate because both California and federal 22 public records law exempt the particular records from disclosure. Indeed, California public 23 records law exempts from disclosure “[r]ecords of Native American graves, cemeteries, 24 and sacred places and records of Native American places, features, and objects . . . 25 maintained by, or in the possession of, the Native American Heritage Commission, another 26 state agency, or a local agency.” Cal. Gov’t Code § 6254. Similarly, the federal 27 Archaeological Resources Protection Act prevents from public disclosure information 28 concerning the “nature and location” of archaeological resources. 16 U.S.C. § 470hh. Thus, 1 the sealing of the records is appropriate to protect the integrity of La Posta’s cultural and 2 sacred sites. Accordingly, the Court finds that compelling reasons justify sealing the 3 declaration as “court files might . . . become a vehicle for improper purposes.” The Court 4 thus GRANTS La Posta’s motions to seal. (Doc. Nos. 41, 49.) 5 IV. DEFENDANTS’ EX PARTE MOTION FOR LEAVE TO FILE SUR-REPLY 6 Next, Defendants asks the Court for permission to file a sur-reply in connection with 7 La Posta’s motions for TRO and preliminary injunction. (Doc. No. 57.) The Government 8 argues “Plaintiffs advance two new, affirmative arguments that Acting Secretary of 9 Homeland Security Chad Wolf lacked authority to authorize the border barrier projects and 10 waivers at issue in this case.” (Id. at 2.) In response, La Posta asserts “[t]he arguments 11 Defendants refer to are neither new nor affirmative, but rather are rebuttals to the 12 Defendants’ opposition arguments, which the Tribe referenced in its opening brief.” (Doc. 13 No. 58.) 14 The Court agrees with La Posta that a sur-reply is not warranted in this situation. Of 15 course, a “district court need not consider arguments raised for the first time in a reply 16 brief.” Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007). However, the arguments 17 Defendants challenge here are certainly related to the line of reasoning set forth in La 18 Posta’s opening brief. Furthermore, the points made by La Posta in their reply brief are in 19 direct response to arguments advanced by Defendants in the opposition. Therefore, the 20 Court DENIES Defendants’ ex parte request. 21 V. LA POSTA’S SECOND MOTION FOR TEMPORARY RESTRAINING 22 ORDER1 23 A. Legal Standard for TRO and Preliminary Injunction 24 The standard for issuing a TRO is the same as that for the issuance of a preliminary 25 injunction. See New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1347 26

27 1 In support of their second motion for TRO, La Posta requests judicial notice of: (1) an excerpt of 28 Delegation 00106, Rev. 08.5, signed by Kristjen Nielsen on April 10, 2019; (2) an amendment to 1 n.2 (1977). Thus, much like a preliminary injunction, a TRO is “an extraordinary remedy 2 that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” 3 Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008). Whether to grant 4 or deny a TRO or preliminary injunction is a matter within the Court’s discretion. See Miss 5 Universe, Inc. v. Flesher, 605 F.2d 1130, 1132–33 (9th Cir. 1979). 6 To obtain a TRO or preliminary injunction, “the moving party ‘must establish that: 7 (1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in the 8 absence of preliminary relief; (3) the balance of equities tips in its favor; and (4) an 9 injunction is in the public interest.’” Idaho v. Coeur D’Alene Tribe, 794 F.3d 1039, 1046 10 (9th Cir. 2015) (quoting Pom Wonderful LLC v. Hubbard, 775 F.3d 1118, 1124 (9th Cir. 11 2014)). Alternatively, “‘serious questions going to the merits’ and a hardship balance that 12 tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long 13 as the plaintiff also shows that there is a likelihood of irreparable injury and that the 14 injunction is in the public interest.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 15 1127, 1135 (9th Cir. 2011). This articulation represents “one alternative on a continuum” 16 under the “‘sliding scale’ approach to preliminary injunctions employed” by the Ninth 17 Circuit. Id. at 1131–32. But “[t]he critical element in determining the test to be applied is 18 the relative hardship to the parties.” Benda v. Grand Lodge of the Int’l Ass’n of Machinists 19 & Aerospace Workers, 584 F.2d 308, 315 (9th Cir. 1978). “If the balance of harm tips 20 decidedly toward the plaintiff, then the plaintiff need not show as robust a likelihood of 21 success on the merits as when the balance tips less decidedly.” Id. 22 B. Discussion 23 Irreparable harm has always served as the “basis of injunctive relief in the federal 24

25 26 Delegation 00106 which was signed by Kevin McAleenan on November 8, 2019; and (3) an affidavit of Juliana Blackwell, which the Department of Homeland Security filed in proceedings in Casa de Maryland, 27 Inc. v. Wolf, No. 8:20-cv-02118 (D. Md. Sept. 11, 2020). Because all these documents are either records signed by government officials or records filed in other court proceedings, the Court concludes that all 28 three documents are appropriate subjects for judicial notice. See Fed. R. Civ. P. 201(b). 1 courts.” Sampson v. Murray, 415 U.S. 61, 88 (1974). In their renewed motion for TRO, the 2 Tribe asserts new allegations of harm associated with recent discoveries of cultural sites 3 and items in the El Centro A Project Area. The Court will address each new allegation 4 below. But upon close review of these new allegations, the Court concludes that La Posta 5 has not met their high burden for the extraordinary relief of a TRO. Accordingly, the Court 6 need not review the other three factors because the Tribe has not established irreparable 7 harm in the absence of injunctive relief. 8 1. Circle Rock Alignments 9 First, to demonstrate irreparable harm, La Posta contends that barrier construction 10 will cut through various circular rock formations, indicative of tribal cultural sites. 11 Specifically, the Tribe points out the El Centro section of the border wall intrudes upon a 12 centuries-old sacred rock circle formation in Davies Valley. (See Second Holm Decl. ¶ 4.) 13 The site features a circle approximately 120 feet in diameter, marked with a perimeter of 14 stones and containing rock cairns. (Id. ¶¶ 3–4.) The circle is surrounded by smaller circle 15 features and trails. (Id.) In opposition, Defendants respond that the circular feature is a 16 modern construct, and that satellite imagery of the area shows no evidence of the circular 17 feature before 2016. (See Third Decl. of Paul Enriquez (“Third Enriquez Decl.”) ¶ 78.) In 18 reply, La Posta states that “[w]hile one of the larger circles was not visible from satellite 19 images before 2016, this is likely due to poor resolution and vegetation.” (Doc. No. 55 at 20 9.) Regardless of whether the circle formation was visible by satellite prior to 2016, this 21 factual dispute again undercuts La Posta’s showing of a concrete, irreparable harm 22 necessary for a TRO. Indeed, while La Posta claims the circle complexes as ancient 23 Kumeyaay cultural sites, Defendants argue that other representatives of the Kumeyaay 24 tribes examined the site in November 2020 and questioned whether the formations were 25 the result of “ATV enthusiasts.”2 (Third Enriquez Decl. ¶ 79.) With directly competing 26

27 2 La Posta objects to these statements in Mr. Enriquez’s declaration as hearsay. (Doc. No. 55 at 9.) The 28 Court, however, may consider inadmissible evidence, including hearsay evidence, in determining whether 1 evidence once again, the Court cannot simply conclude La Posta has established the 2 necessary evidence for immediate relief based on this discovery. 3 La Posta next argues there is evidence of various other circular rock formations 4 discovered by Mr. Holms, the director of the Kumeyaay Historic Preservation Council. 5 (See Doc. No. 40-1 at 6–7; Second Holm Decl. ¶¶ 6–7.) However, these other locations 6 cannot serve as the basis for irreparable injury because the “rock cairn and trail intersection 7 that is referred to in Mr. Holm’s declaration is approximately 700 feet north of the El 8 Centro Project Area.” (Third Enriquez Decl. ¶ 81.) To explain why this discovery was 9 made, the Government adds that “Kumeyaay representatives were permitted to explore 10 areas outside the El Centro Project Area, which is where Mr. Holm claims to have seen the 11 trail intersection and rock cairn.” (Third Enriquez Decl. ¶ 81.) As such, these circular rock 12 formations will not be impacted by construction as they lay outside the El Centro A Project 13 Area. (See id. ¶¶ 81–84.) 14 Additionally, La Posta highlights another rock alignment near the Skull Valley 15 access road. (See Second Holm Decl. ¶ 6.) However, the road alignment for the Skull 16 Valley access road was specifically shifted west to avoid the rock alignment identified by 17 CBP during pre-construction surveys, thereby abating any irreparable injury that might 18 occur to the Tribe in this area. (See Third Enriquez Decl. ¶ 83.) Therefore, these discoveries 19 related to rock circle alignments may not serve as a basis for immediate injunctive relief as 20 they are either factually disputed or fall outside of the area of construction. 21 2. Fire Features and Bone Fragments 22 Second, to further establish irreparable damage, the Tribe asserts that “18 separate 23 fire features” and two bone fragments were found by a tribal cultural monitor near the El 24 25 26 to issue a temporary restraining order or preliminary injunction. See Houdini Inc. v. Goody Baskets LLC, 27 166 F. App’x 946, 947 (9th Cir. 2006) (“[T]he district court did not abuse its discretion in considering hearsay and biased evidence of actual confusion because the rules of evidence do not strictly apply to 28 preliminary injunction proceedings.”). 1 Centro Project Area. (Doc. No. 40-1 at 20; Second Holm Decl. ¶¶ 8–9.) In opposition, 2 Defendants argue that the number of features inside the Project Area are overstated. 3 Instead, only three cultural fire features were discovered within the El Centro Project Area 4 during the week of November 16, 2020. (See Third Enriquez Decl. ¶¶ 60–65.) The other 5 fifteen fire features were found outside the Project Area. (Id.) 6 As to these three fire features, extensive mitigation efforts implemented by 7 Defendants alleviate any imminent threat of irreparable harm. Upon discovery of the fire 8 features, Defendants stated they “stopped construction in the area and immediately 9 instituted mitigation measures to avoid any damage to the items, arranged for Plaintiffs to 10 examine the features, and are working with Plaintiffs to implement a mutually-agreeable 11 treatment plan.” (See Third Enriquez Decl. ¶¶ 61–76.) In fact, after a tribal cultural monitor 12 discovered the items, “CBP immediately created a 100-meter buffer zone around all three 13 features and ceased all construction activity and vehicular traffic within that area.” (Id. 14 ¶ 65.) CBP then arranged for La Posta and other representatives from the Kumeyaay Tribes 15 to conduct a site inspection of the area on November 19, 2020. (Id. ¶ 66–76.) As further 16 evidence of the Government’s cooperation to prevent irreparable harm, CBP circulated a 17 “draft plan in early December that calls for capping—a means of protecting cultural 18 resources in place—the cremation site and performing additional testing on the other two 19 features.” (Id. ¶ 76.) Pending implementation of this plan, CBP and the Kumeyaay tribes 20 have agreed that “temporary concrete barriers would be placed around the features and no 21 construction traffic or activity would be allowed within that buffer zone.” (Id.) 22 As for the discovery of bone fragments near this site, even if mitigation procedures 23 were not in place to prevent irreparable damage, factual disputes hinder La Posta’s ability 24 to obtain immediate injunctive relief. In particular, La Posta’s medical examiner stated the 25 bone fragments are likely human bones, (Doc. No. 40-1 at 20), whereas CBP’s archeologist 26 concluded that the bones are more likely to belong to an animal, (Doc. No. 48 at 12). 27 Defendants also point out that determining whether the fragments are human, or animal 28 would require laboratory testing, which would likely destroy the fragments given their 1 small size. (Id.) Thus, with these factual disputes and mitigation procedures, La Posta has 2 fallen short of their burden of establishing irreparable harm based on these fire features and 3 bone fragments. 4 3. Interference with Stargazing 5 La Posta next cites to interference with stargazing as another source of irreparable 6 harm. (Doc. No. 40-1 at 7.) La Posta explains tribal citizens practice stargazing throughout 7 the Project Area, and so, installation of lighting on the border wall will cause light 8 pollution, obscuring the tribal citizens’ view of the night sky. (Id.) As with the fire features 9 discussed above, the Government has indicated it can take “steps to minimize light spillage, 10 including through the installation of light shields that allow the light to spill downward, not 11 upwards or horizontally.” (See Third Enriquez Decl. ¶ 93.) With these mitigation measures, 12 the Court cannot deem that the installation of lighting would cause irreparable harm 13 sufficient for a TRO. 14 4. Inability to Survey Project Area 15 Lastly, La Posta appears to also characterize their irreparable harm as the inability 16 to adequately survey the Project Area. But the mitigation efforts undertaken by the 17 Government to date undermines this claim. Indeed, La Posta does not dispute that five 18 tribal cultural monitors have been permitted on-site to observe construction activities in the 19 Project Area, “in addition to the monitors CBP itself is providing.” (See Third Enriquez 20 Decl. ¶ 37.) CBP also has notified the Tribe that they are permitted to provide additional 21 tribal cultural monitors at their own expense, but there is no evidence that La Posta has 22 elected to do so. (Doc. No. 48 at 14). “To be sure, the Kumeyaay are under no legal 23 obligation to provide monitors. Their decision not to do so, however, weakens their claim 24 that they cannot oversee construction activities to mitigate potential damage.” Manzanita 25 Band of Kumeyaay Nation v. Wolf, No. 1:20-CV-02712 (TNM), 2020 WL 6118182, at *8 26 (D.D.C. Oct. 16, 2020). 27 In addition, CBP has reviewed prior survey data, conducted record searches of the 28 1 Project Area, and performed new surveys of the Project Areas specifically identified by La 2 Posta as having a high likelihood of containing cultural artifacts. (See Third Enriquez Decl. 3 ¶¶ 34, 40–43.) The record here also establishes that Defendants have immediately notified 4 La Posta about newly discovered items, stopped construction upon detection of such items, 5 implemented measures to create a buffer zone around the areas, and agreed to La Posta’s 6 recommended protection measures. 7 Whether these measures are in fact sufficient is not the question before the Court 8 today. For today, the extensive mitigation efforts and protocols in place substantially 9 undercut La Posta’s ability to establish both irreparable and imminent harm. See Lyng v. 10 Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 454 (1988) (“It is worth emphasizing 11 . . . that the Government has taken numerous steps in this very case to minimize the impact 12 that construction of the [ ] road will have on the Indians’ religious activities.”); see Quechan 13 Tribe of the Ft. Yuma Indian Reservation v. U.S. Dep’t of the Interior, No. 12-CV-1167- 14 WQH-MDD, 2012 WL 1857853, at *7 (S.D. Cal. May 22, 2012) (finding no likelihood of 15 irreparable harm related to discovery of cultural and burial items where plaintiff failed to 16 show that mitigation procedures were “not adequate to guard against irreparable injury to 17 items discovered on public land”); Manzanita Band of Kumeyaay Nation, 2020 WL 18 6118182, at *5 (“For now, the mitigation efforts in place undermine the Kumeyaay’s 19 burden to establish both irreparable and imminent harm, especially given their own 20 evidentiary shortcomings.”). 21 VI. CONCLUSION 22 Against the backdrop of this evidence and Defendants’ mitigation procedures, the 23 Tribe has not met their burden of establishing irreparable injury in the absence of an 24 immediate injunction. Unable to meet this requirement, the Court need not address the 25 // 26 // 27 // 28 // 1 || other three factors for a TRO. Based on all the reasons stated above, the Court (1) 2 ||GRANTS La Posta’s motions to seal, (Doc. Nos. 41, 49); (2) DENIES Defendants’ ex 3 || parte motion for leave to file a sur-reply, (Doc. No.57); and (3) DENIES La Posta’s second 4 || motion for TRO, (Doc. No. 40). 5 6 IT IS SO ORDERED. 7 Dated: December 16, 2020

9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15