Center for Bio. Diversity v. Usdhs ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE BORDER INFRASTRUCTURE No. 18-55474
ENVIRONMENTAL LITIGATION,
D.C. Nos.
3:17-cv-01215-
CENTER FOR BIOLOGICAL DIVERSITY, GPC-WVG
Plaintiff-Appellant, 3:17-cv-01873-
GPC-WVG
and 3:17-cv-01911-
GPC-WVG
DEFENDERS OF WILDLIFE, a nonprofit
conservation organization; SIERRA
CLUB, a nonprofit public benefit
corporation; ANIMAL LEGAL
DEFENSE FUND; PEOPLE OF THE
STATE OF CALIFORNIA, by and
through Xavier Becerra, Attorney
General; CALIFORNIA COASTAL
COMMISSION,
Plaintiffs,
v.
U.S. DEPARTMENT OF HOMELAND
SECURITY; U.S. CUSTOMS AND
BORDER PROTECTIONS; KIRSTJEN
NIELSEN, Secretary, in her official
capacity; KEVIN K. MCALEENAN,
2 IN RE BORDER INFRASTRUCTURE ENVTL. LITIG.
Commissioner, in his official
capacity,
Defendants-Appellees.
IN RE BORDER INFRASTRUCTURE No. 18-55475
ENVIRONMENTAL LITIGATION,
D.C. Nos.
3:17-cv-01215-
CENTER FOR BIOLOGICAL DIVERSITY; GPC-WVG
PEOPLE OF THE STATE OF 3:17-cv-01873-
CALIFORNIA, by and through Xavier GPC-WVG
Becerra, Attorney General; 3:17-cv-01911-
CALIFORNIA COASTAL COMMISSION, GPC-WVG
Plaintiffs,
and
DEFENDERS OF WILDLIFE, a nonprofit
conservation organization; SIERRA
CLUB, a nonprofit public benefit
corporation; ANIMAL LEGAL
DEFENSE FUND,
Plaintiffs-Appellants,
v.
U.S. DEPARTMENT OF HOMELAND
SECURITY; U.S. CUSTOMS AND
BORDER PROTECTIONS; KIRSTJEN
NIELSEN, Secretary, in her official
capacity; KEVIN K. MCALEENAN,
IN RE BORDER INFRASTRUCTURE ENVTL. LITIG. 3
Commissioner, in his official
capacity,
Defendants-Appellees.
IN RE BORDER INFRASTRUCTURE No. 18-55476
ENVIRONMENTAL LITIGATION,
D.C. Nos.
3:17-cv-01215-
CENTER FOR BIOLOGICAL DIVERSITY; GPC-WVG
DEFENDERS OF WILDLIFE, a nonprofit 3:17-cv-01873-
conservation organization; SIERRA GPC-WVG
CLUB, a nonprofit public benefit 3:17-cv-01911-
corporation; ANIMAL LEGAL GPC-WVG
DEFENSE FUND,
Plaintiffs,
OPINION
and
PEOPLE OF THE STATE OF
CALIFORNIA, by and through Xavier
Becerra, Attorney General;
CALIFORNIA COASTAL COMMISSION,
Plaintiffs-Appellants,
v.
U.S. DEPARTMENT OF HOMELAND
SECURITY; U.S. CUSTOMS AND
BORDER PROTECTIONS; KIRSTJEN
NIELSEN, Secretary, in her official
capacity; KEVIN K. MCALEENAN,
4 IN RE BORDER INFRASTRUCTURE ENVTL. LITIG.
Commissioner, in his official
capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding
Argued and Submitted August 7, 2018
Pasadena, California
Filed February 11, 2019
Before: M. Margaret McKeown, Consuelo M. Callahan,
and Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge McKeown;
Dissent by Judge Callahan
IN RE BORDER INFRASTRUCTURE ENVTL. LITIG. 5
SUMMARY *
Environmental Law / Homeland Security
The panel affirmed the district court’s summary
judgment entered in favor of the U.S Department of
Homeland Security (“DHS”) in cases involving challenges
by the State of California and environmental groups to
DHS’s authority to expedite construction of border barriers
near San Diego and Calexico, California, and the Secretary
of DHS’s August and September 2017 waivers of applicable
environmental laws.
Pursuant to Executive Order 13,767, the Secretary of
DHS invoked section 102(c) of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”) to waive federal laws with respect to border
barrier construction projects along the border between the
United States and Mexico.
The plaintiffs’ “ultra vires claims” alleged that DHS
exceeded its statutory authority in working on the border
barrier projects and issuing the related waivers in violation
of the Administrative Procedure Act (“APA”). The
plaintiffs’ “environmental claims” alleged that in planning
and building the border barrier projects, DHS violated
federal environmental laws.
As a threshold matter, the panel held that they had
jurisdiction to consider the “predicate legal question” of
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
6 IN RE BORDER INFRASTRUCTURE ENVTL. LITIG.
whether IIRIRA authorized the contested projects. Because
neither IIRIRA nor the APA barred the panel’s review, the
panel turned to the merits of the ultra vires and
environmental claims.
The panel held that the plain text of section 102(a) of
IIRIRA granted DHS authority to construct the border
barrier projects, and that grant of authority was not limited
by section 102(b) of IIRIRA. The panel concluded that the
district court correctly granted DHS summary judgment on
the ultra vires claims. The panel further held that the
environmental claims were precluded by the Secretary’s
waiver of the National Environmental Policy Act, the
Coastal Zone Management Act, and the APA. The panel
held that it lacked jurisdiction to consider any argument
challenging the waivers themselves.
Judge Callahan dissented because she would read section
102 of IIRIRA as limiting review of the district court’s
decision to review by certiorari in the Supreme Court; and
she would, accordingly, dismiss the appeals.
COUNSEL
Noah Golden-Krasner (argued), Julia Forgie, Jessica B.
Strobel, Baine P. Kerr, Janelle M. Smith, and John
Applebaum, Deputy Attorneys General; David G. Alderson,
Michael P. Cayaban, and Edward H. Ochoa, Supervising
Deputy Attorneys General; Robert W. Byrne, Senior
Assistant Attorney General; Xavier Becerra, Attorney
General; Office of the Attorney General, Los Angeles,
California; for Plaintiffs-Appellants People of the State of
California and California Coastal Commission.
IN RE BORDER INFRASTRUCTURE ENVTL. LITIG. 7
Brian Segee and John Peter Rose, Center for Biological
Diversity, Los Angeles, California; Anchun Jean Su and
Brendan Cummings, Center for Biological Diversity,
Oakland, California; for Plaintiff-Appellant Center for
Biological Diversity.
Anthony T. Eliseuson, Animal Legal Defense Fund,
Chicago, Illinois; Sara K. Hanneken, Animal Legal Defense
Fund, Portland, Oregon; for Plaintiff-Appellant Animal
Legal Defense Fund.
Jason Rylander, Defenders of Wildlife, Washington, D.C.,
for Plaintiff-Appellant Defenders of Wildlife.
Gloria D. Smith, Sierra Club, Oakland, California, for
Plaintiff-Appellant Sierra Club.
H. Thomas Byron III (argued), Courtney L. Dixon, and
Benjamin M. Schultz, Appellate Staff; Adam L. Braverman,
United States Attorney; Civil Division, United States
Department of Justice, Washington, D.C.; for Defendants-
Appellees.
OPINION
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
8 IN RE BORDER INFRASTRUCTURE ENVTL. LITIG.
§ 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).
This 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. 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”
1
Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546 (codified as
amended at 8 U.S.C. § 1103 note). All section references are to IIRIRA
unless otherwise indicated. IIRIRA originally granted the Attorney
General this authority. Congress transferred this authority to the DHS
Secretary after creating DHS in 2002.
IN RE BORDER INFRASTRUCTURE ENVTL. LITIG. 9
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 Secretary 2 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
2
During this period, John Kelly, Elaine Duke, and Kirstjen Nielsen
served as DHS Secretary. Because the identity of the Secretary who
initiated any given administrative action is not relevant to the legal issues
in this appeal, we simply refer to the “Secretary” or “DHS Secretary.”
10 IN RE BORDER INFRASTRUCTURE ENVTL. LITIG.
“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 border 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.
IN RE BORDER INFRASTRUCTURE ENVTL. LITIG. 11
Three sets of plaintiffs 3 filed lawsuits against the federal
government 4 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 et seq. The
“environmental claims” alleged that in planning and
building the border barrier projects, DHS violated
environmental laws. 5 Finally, the “constitutional claims”
alleged that the waivers violated the U.S. Constitution.
On cross-motions, the district court granted summary
judgment to DHS. The district court concluded that
IIRIRA’s jurisdictional bar, see § 102(c)(2)(A), prevented it
3
The Plaintiffs-Appellants (collectively “California and the
environmental groups”) are: (1) the State of California and the California
Coastal Commission (collectively “California”); (2) the Center for
Biological Diversity (“CBD”); and (3) the Defenders of Wildlife, the
Sierra Club, and the Animal Legal Defense Fund (collectively the
“Coalition”).
4
The Defendants-Appellees (collectively “DHS” or “the
Government”) are: the United States of America; the U.S. Department
of Homeland Security; U.S. Customs and Border Protection; Secretary
Kirstjen Nielsen, in her official capacity; and Commissioner Kevin K.
McAleenan, in his official capacity.
5
California and the environmental groups alleged that DHS violated
the National Environmental Policy Act, 42 U.S.C. § 4321 et seq.
(“NEPA”), the Coastal Zone Management Act, 16 U.S.C. § 1451 et seq.
(“CZMA”), and the APA. DHS acknowledged that it did not comply
with NEPA or CZMA requirements.
12 IN RE BORDER INFRASTRUCTURE ENVTL. LITIG.
from hearing the non-constitutional claims. The district
court went on to reject the constitutional claims.
California, CBD, and the Coalition each appealed the
district court’s judgments as to the ultra vires and
environmental claims, but not their constitutional claims.
We consolidated the three appeals.
ANALYSIS
I. STANDARD OF REVIEW
We review the district court’s grant of summary
judgment de novo. Wolfe v. BNSF Ry. Co., 749 F.3d 859,
863 (9th Cir. 2014). We must “determine, viewing the
evidence in the light most favorable to the non-moving party,
whether there are any genuine issues of material fact and
whether the district court correctly applied the relevant
substantive law.” Citicorp Real Estate, Inc. v. Smith,
155 F.3d 1097, 1103 (9th Cir. 1998). In doing so, we do “not
weigh the evidence or determine the truth of the matter but
only determine whether there is a genuine issue for trial.” Id.II. JURISDICTION
The threshold question is whether we have jurisdiction
to hear this appeal. The answer depends on the scope of
IIRIRA’s jurisdictional bar and direct review provisions.
We begin with the language of the statute, which
provides:
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
IN RE BORDER INFRASTRUCTURE ENVTL. LITIG. 13
Homeland Security pursuant to paragraph
(1). A cause of action or claim may only be
brought alleging a violation of the
Constitution of the United States. The court
shall not have jurisdiction to hear any claim
not specified in this subparagraph.
§ 102(c)(2)(A) (emphasis added). Paragraph (1), IIRIRA’s
waiver provision, states:
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.
§ 102(c)(1).
Section 102(c)(2)(C) provides for direct review of the
district court’s decision by the Supreme Court: “An
interlocutory or final judgment, decree, or order of the
district court may be reviewed only upon petition for a writ
of certiorari to the Supreme Court of the United States.”
The statutory directive is clear:
• IIRIRA vests district courts with exclusive
jurisdiction to hear claims “arising from” actions
undertaken or decisions made “pursuant to” the
waiver provision.
14 IN RE BORDER INFRASTRUCTURE ENVTL. LITIG.
• This exclusive jurisdiction over claims “arising
from” the waiver provision is limited to
constitutional violations; there is no judicial review
of non-constitutional claims “arising from” the
waiver provision.
• The direct review provision applies only to those
claims subject to the district courts’ exclusive
jurisdiction.
The jurisdictional bar and direct review provisions cover
only claims “arising from” paragraph (1)’s waiver provision.
Interpreting their scope requires determining when a claim
“aris[es] from” the waiver provision.
A claim does not “aris[e] from” the waiver provision
simply because it is related to or concerned with the
Secretary’s waiver determinations. The language used in
section 102(c)(2)(A) requires more. The Ninth Circuit has
noted that a related phrase, “arising out of,” is “ordinarily
understood to mean ‘originating from,’ ‘having its origin in,’
‘growing out of’ or ‘flowing from’ or in short, ‘incident to,
or having connection with.’” See In re Tristar Esperanza
Props., LLC, 782 F.3d 492, 497 (9th Cir. 2015) (quoting
Underwriters at Lloyd’s of London v. Cordova Airlines, Inc.,
283 F.2d 659, 664 (9th Cir. 1960)). Accordingly, a claim
“aris[es] from” an “action undertaken” or “decision made[ ]
by the Secretary . . . pursuant to” the waiver provision only
when the claim originates or stems from a section 102(c)(1)
waiver determination. 6 Whether the jurisdictional bar
6
In isolation, the reference in Tristar to “having connection with”
might support a broader reading of this nexus requirement. 782 F.3d at
497. However, context is key: the phrase follows four illustrative
definitions, each describing an originating relationship, and then the
IN RE BORDER INFRASTRUCTURE ENVTL. LITIG. 15
applies to California and the environmental groups’ claims
requires us to assess whether each claim “aris[es] from” the
Secretary’s waiver determinations.
One set of ultra vires claims alleges that the border
barrier projects are not authorized by the grant of barrier- and
road-building authority in sections 102(a) and 102(b). They
challenge the scope of the Secretary’s authority to build
roads and walls under sections 102(a) and 102(b), not the
scope of waiver authority under section 102(c). These
claims thus “aris[e] from” sections 102(a) and 102(b), not
section 102(c). Their origin is the initial decision to build
the border barrier projects, not the later decision to issue a
waiver related to those projects. In the absence of any
relationship between these claims and the waiver provision,
there is no plausible interpretation of “aris[es] from” that
brings these claims under the jurisdictional bar. On the other
hand, a second set of ultra vires claims alleges the waivers
themselves were not authorized by the Secretary’s authority
under section 102(c)(1). See, e.g., Second Am. Compl. at
34–38, In re: Border Infrastructure Envtl. Litig., No. 3:17-
cv-01215-GPC-WVG (S.D. Cal. Sept. 6, 2017). These
claims do “arise from” the Secretary’s waiver determination,
so the district court correctly found that the jurisdictional bar
applies. 7
qualifier, “in short,” which indicates that any subsequent terms are a
mere rephrasing of the preceding substantive definitions.
7
The district court was also correct in reasoning that the exception
laid out in Leedom v. Kyne, 358 U.S. 184 (1958), does not create
jurisdiction over these claims. Leedom’s extremely narrow exception
would apply only if the waivers violated “‘clear and mandatory’
statutory language.” Pac. Mar. Ass’n v. NLRB, 827 F.3d 1203, 1208 (9th
Cir. 2016) (quoting Leedom, 358 U.S. at 188). Contrary to California
16 IN RE BORDER INFRASTRUCTURE ENVTL. LITIG.
The environmental claims allege the planning and
construction of the border barrier projects violated various
environmental laws. To the extent these claims challenge
either the merits of the waivers themselves, or the
Secretary’s authority to issue the waivers under
section 102(c), they are subject to the jurisdictional bar. But,
the analysis is different for the environmental claims that
“aris[e] from” alleged violations of NEPA, CZMA, and the
APA during the planning and construction of the border
barrier projects. At least some of the environmental claims
clearly fall into this latter category. For example, CBD
raised NEPA and APA claims before the Secretary published
the San Diego or Calexico Waivers, meaning the waivers
could not possibly have been the source of these claims. See
First Am. Compl. at 3–4, 23–32, In re: Border Infrastructure
Envtl. Litig., No. 3:17-cv-01215-GPC-WVG (S.D. Cal. July
7, 2017). To be sure, a valid waiver of the relevant
environmental laws under section 102(c) is an affirmative
defense to all the environmental claims. 8 But the fact that
the waivers may be dispositive of the environmental claims
does not make a waiver the origin of those claims.
and the environmental groups’ reading, it is far from “clear” that
section 102(c)(1) does not authorize the waivers. By authorizing any
waiver “necessary to ensure expeditious construction of the barriers and
roads under this section,” section 102(c)(1) authorizes waivers to
facilitate construction authorized by section 102(a), including the border
barrier projects.
8
California and the environmental groups point out that the
environmental review requirements for NEPA and CZMA became
effective for the border barrier projects before the agency issued the
waivers. But the waiver provision says nothing about when the agency
must invoke its authority, and we strain to see what relief could be
granted once DHS issued the waivers.
IN RE BORDER INFRASTRUCTURE ENVTL. LITIG. 17
The black letter law of federal question jurisdiction
illustrates why any other outcome would be at odds with
well-accepted principles. Under 28 U.S.C. § 1331, district
courts have jurisdiction over all cases “arising under the
Constitution, laws, or treaties of the United States.” A case
does not “aris[e] under the Constitution, laws, or treaties of
the United States” just because a defendant invokes a federal
defense. See Louisville & Nashville R.R. v. Mottley,
211 U.S. 149, 152 (1908). For the same reason, the
environmental claims do not “aris[e] from” the Secretary’s
waiver determinations merely because those waivers could
provide the Secretary with a viable defense.
Finally, the constitutional claims, which allege that the
waiver determinations themselves violate the U.S.
Constitution, do “aris[e] from” the waiver determinations.
See, e.g., Compl. at 23, Defs. of Wildlife v. DHS, No. 3:17-
cv-01873-GPC-WVG (S.D. Cal. Sept. 14, 2017) (arguing
the San Diego and Calexico Waivers violate the Presentment
Clause). Because these claims grow out of the waiver
determinations, IIRIRA’s jurisdictional bar applies. The
district court had exclusive jurisdiction to hear those claims,
and any appeal must be direct to the Supreme Court pursuant
to section 102(c)(2)(C). It is no surprise that California and
the environmental groups did not appeal the constitutional
claims to the Ninth Circuit. 9
The jurisdictional bar and direct review provisions have
no bearing on the ultra vires and environmental claims that
9
The Animal Legal Defense Fund, CBD, and Defenders of Wildlife
filed a petition for certiorari raising the constitutional claims, which the
Supreme Court denied. Animal Legal Def. Fund v. DHS, 139 S. Ct. 594(2018).
18 IN RE BORDER INFRASTRUCTURE ENVTL. LITIG.
do not “aris[e] from” the waiver determination. 10 The
district court had jurisdiction to review these federal claims
under 28 U.S.C. § 1331. We, in turn, have jurisdiction to
consider this appeal from the “final decision[ ] of the district
court[ ]” under 28 U.S.C. § 1291.
Nor does the APA bar our review. California and the
environmental groups seek relief for their ultra vires and
environmental claims pursuant to the APA’s cause of action.
See 5 U.S.C. § 702. DHS argues those claims are
unreviewable because waiver determinations are made in the
Secretary’s “sole discretion,” IIRIRA § 102(c)(1), which
means they are “committed to agency discretion by law” and
therefore exempt from the APA’s cause of action. See
5 U.S.C. § 701(a)(2). However, this argument sidesteps the
essence of the claims—that the border barrier projects are
not authorized under section 102(a) or 102(b). The predicate
legal question of statutory authority is not committed to
agency discretion, so California and the environmental
groups’ claims are reviewable.
Because neither IIRIRA nor the APA bar our review, we
turn to the merits of the ultra vires and environmental
claims.
III. DHS HAS AUTHORITY TO CONSTRUCT THE
BORDER BARRIER PROJECTS
As noted, the ultra vires and environmental claims rely
on the APA, which provides the analytical framework for
considering these claims. Under the APA, the operative
10
This conclusion follows from the plain language of IIRIRA. The
strong presumption of judicial review of agency action further supports
this outcome. See Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131,
2140 (2016).
IN RE BORDER INFRASTRUCTURE ENVTL. LITIG. 19
question is whether the agency action is “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law,” or “in excess of statutory jurisdiction,
authority, or limitations, or short of statutory right.”
5 U.S.C. § 706(2)(A), (C). The ultra vires claims relevant
here allege DHS exceeded its statutory authority under
sections 102(a) and 102(b). The environmental claims
allege the border barrier projects are “not in accordance with
law” because their planning and construction violated NEPA
and CZMA.
Section 102(a) vests the Secretary with authority to “take
such actions as may be necessary to install additional
physical barriers and roads (including the 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.”
A. The border barrier projects are “additional
physical barriers.”
The Secretary authorized the San Diego and Calexico
Projects because the existing barriers in those areas were
built in the 1990s using a fence design “that is no longer
optimal for Border Patrol operations.” 82 Fed. Reg. 35,985,
42,830. According to DHS, the new construction erects
stronger and taller barriers. The Calexico Project will
replace “[t]he existing fourteen foot, landing mat-style
fencing . . . with an eighteen to twenty-five foot barrier that
employs a more operationally effective design.” Id. at
42,830. Similarly, the San Diego Project “will replace
existing primary fencing” with a “new primary barrier” that
“use[s] an operationally effective design.” Id. at 35,984–85.
These are “additional physical barriers.”
20 IN RE BORDER INFRASTRUCTURE ENVTL. LITIG.
California and the environmental groups argue that the
San Diego and Calexico Projects—which replace existing
border fencing—are not authorized under section 102(a)
because that section only applies to “additional physical
barriers.” 11 They urge that “Congress understood the phrase
‘install additional barriers’ to mean the construction of
barriers that would add to the total miles of already existing
fences by installing new barriers where none existed at the
time.”
The plain language of section 102(a) suggests no such
limitation. In simple terms, “additional” means
“supplemental.” Ojai Unified Sch. Dist. v. Jackson, 4 F.3d
1467, 1472–73 (9th Cir. 1993) (quoting Town of Burlington
v. Dep’t of Educ., 736 F.2d 773, 790 (1st Cir. 1984)). A
“barrier” is “a material object or set of objects that separates,
keeps apart, demarcates, or serves as a unit or barricade.”
See Barrier, Webster’s New Int’l Dictionary of the English
Language (3d ed. 1993). Combining the plain meaning of
“additional” and “barrier” yields a “supplemental material
object or set of objects that separates, keeps apart,
demarcates, or serves as a unit or barricade.” A replacement
fence fits comfortably within that definition.
That the statutory grant of authority extends beyond
“install[ing] additional physical barriers” to “tak[ing] such
actions as may be necessary to install additional physical
barriers and roads” further supports this conclusion. IIRIRA
§ 102(a) (emphasis added). “[S]uch actions” include
“remov[ing] . . . obstacles to detection of illegal entrants.”
Id. It follows that authorization to “remov[e] . . . obstacles”
and take other “actions . . . necessary to install . . . barriers
11
They do not dispute that the Prototype Project is an “additional
physical barrier.”
IN RE BORDER INFRASTRUCTURE ENVTL. LITIG. 21
and roads” extends beyond the erection of entirely new
barriers and encompasses the maintenance, enhancement,
and replacement of existing barriers.
Common sense also supports our analysis. To suggest
that Congress would authorize DHS to build new border
barriers but (impliedly) prohibit the maintenance, repair, and
replacement of existing ones makes no practical sense. See
Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575
(1982) (“[I]nterpretations of a statute which would produce
absurd results are to be avoided if alternative interpretations
consistent with the legislative purpose are available.”).
B. The projects are “in areas of high illegal entry
into the United States.”
The San Diego and Calexico Waivers cited data
demonstrating that the border barrier projects are “in areas
of high illegal entry.” IIRIRA § 102(a); 82 Fed. Reg.
35,984, 42,830. In the U.S. Border Patrol’s San Diego
Sector, the location of the Prototype and San Diego Projects,
the Border Patrol apprehended over 31,000 undocumented
immigrants and seized approximately 9,167 pounds of
marijuana and 1,317 pounds of cocaine in fiscal year 2016.
82 Fed. Reg. 35,984. In the El Centro Sector, the location of
the Calexico Project, the U.S. Border Patrol apprehended
over 19,000 undocumented immigrants and seized
approximately 2,900 pounds of marijuana and 126 pounds
of cocaine over the same period. Id. at 42,830. This is ample
evidence of “high illegal entry” in these areas.
California and the environmental groups nonetheless
contend the San Diego and Calexico Projects are not
authorized by section 102(a) because they are not “in areas
of high illegal entry into the United States.” They do not
dispute the evidence of “illegal entry” provided by DHS.
22 IN RE BORDER INFRASTRUCTURE ENVTL. LITIG.
Nor do they dispute that the number of undocumented
immigrants apprehended and the amount of illegal narcotics
seized are objectively “high.” Instead, they assert that the
San Diego and El Centro statistics are not comparably
“high” when measured against other sectors on the
southwest border or the rates of illegal entry in these sectors
in the past.
However, IIRIRA does not dictate that “high illegal
entry” is a comparative determination. Absent qualification,
“high illegal entry” means what it says. The fact that there
are areas with “higher illegal entry” says nothing about
whether the San Diego and El Centro sectors are “areas of
high illegal entry.” Even assuming that “areas of high illegal
entry” are identified relative to other border sectors, San
Diego and El Centro are in the top 35% of border sectors
with respect to the number of undocumented immigrants
apprehended. Finally, to the extent the challenge targets the
Secretary’s discretion in selecting where to exercise her
authority under section 102(a), such an inquiry is foreclosed
by IIRIRA’s bar on probing the merits of a waiver
determination, § 102(c)(2), and the APA’s bar on reviewing
discretionary agency action, 5 U.S.C. § 701(a)(2).
C. Section 102(b) does not impose limits on
Section 102(a)’s broad grant of authority.
Having determined that section 102(a)’s grant of
authority encompasses the border barrier projects, we next
consider whether section 102(b) imposes limits on that
broad grant of authority. Section 102(b) provides in relevant
part:
(1) Additional fencing along southwest
border.—
IN RE BORDER INFRASTRUCTURE ENVTL. LITIG. 23
(A) Reinforced fencing.—In carrying out
subsection (a), the Secretary of
Homeland Security shall construct
reinforced fencing along not less than
700 miles of the southwest border where
fencing would be most practical and
effective and provide for the installation
of additional physical barriers, roads,
lighting, cameras, and sensors to gain
operational control of the southwest
border.
(B) Priority areas.—In carrying out this
section, the Secretary of Homeland
Security shall—
(i) identify the 370 miles, or other
mileage determined by the Secretary,
whose authority to determine other
mileage shall expire on December 31,
2008, along the southwest border
where fencing would be most
practical and effective in deterring
smugglers and aliens attempting to
gain illegal entry into the United
States; and
(ii) not later than December 31, 2008,
complete construction of reinforced
fencing along the miles identified
under clause (i).
The question is whether the fencing requirements and
deadlines in section 102(b) establish limits applicable to
section 102(a). They do not. Section 102(b)’s provisions for
24 IN RE BORDER INFRASTRUCTURE ENVTL. LITIG.
priority projects do not swallow section 102(a)’s
independent authorization to build “additional physical
barriers.” Congress’s alternative use of the phrases “[i]n
carrying out subsection (a)” and “this section” indicates that
section 102(b) applies to some but not all of the construction
authorized by section 102(a). In other words, section 102(a)
is most plausibly read as a broad grant of authority to build
border infrastructure, while section 102(b) merely denotes
certain priority projects Congress intended DHS to complete
first. Limits on the priority projects apply to those projects
alone, not the wider universe of construction authorized by
section 102(a).
The “general/specific canon” of statutory construction
does not require a different interpretation. That canon
provides that when two conflicting provisions cannot be
reconciled, the more specific provision should be treated as
an exception to the general rule. See Antonin Scalia & Bryan
A. Gardner, Reading Law 183 (2012). Herein lies the rub.
Sections 102(a) and 102(b) do not conflict. See Marx v. Gen.
Revenue Corp., 568 U.S. 371, 386–87 (2013) (explaining
that, because the case did not fall within the specific
provision, it was governed by the general provision and the
“general/specific canon” was inapplicable).
Finally, the narrow interpretation offered by California
and the environmental groups renders section 102(a)
superfluous. If section 102(b) defines the entire scope of
DHS’s authority to build border infrastructure projects under
section 102, section 102(a) would lack any independent
effect. “[W]e are hesitant to adopt an interpretation of a
congressional enactment which renders superfluous another
portion of that same law.” Mackey v. Lanier Collection
Agency & Serv., Inc., 486 U.S. 825, 837 (1988).
IN RE BORDER INFRASTRUCTURE ENVTL. LITIG. 25
In short, the plain text of section 102(a) grants DHS
authority to construct the Prototype, San Diego, and
Calexico Projects, and that grant of authority is not limited
by section 102(b). The district court correctly granted DHS
summary judgment on the ultra vires claims.
Having determined that the border barrier projects were
authorized under section 102(a), we have little trouble
concluding that the environmental claims were also properly
dismissed. The Secretary has waived the legal requirements
that California and the environmental groups allege DHS
violated. See 82 Fed. Reg. 35,985 (waiving application of
NEPA, CZMA, and the APA to the San Diego and Prototype
Projects); id. at 42,830 (waiving application of NEPA and
the APA to the Calexico Project). And of course, we lack
jurisdiction to consider any argument challenging the
waivers themselves.
Finally, California and the environmental groups argue
that because their environmental claims challenge DHS’s
plans to replace fourteen miles of secondary fencing in San
Diego, and DHS concedes that the San Diego Waiver did not
extend to those plans, the San Diego Waiver does not
provide a defense to the environmental claims as applied to
the secondary fencing. We need not reach this challenge
because, as of the time of this appeal, DHS’s plans to replace
the secondary fencing, including whether to comply with
NEPA and CZMA, are not yet “final” agency actions for
purposes of the APA. See 5 U.S.C. § 704 (“Agency action
made reviewable by statute and final agency action for
which there is no other adequate remedy in a court are
subject to judicial review.” (emphasis added)); Bennett v.
Spear, 520 U.S. 154, 177–78 (1997) (explaining that final
agency action both represents the consummation of the
agency’s decision-making process and has legal effect).
26 IN RE BORDER INFRASTRUCTURE ENVTL. LITIG.
CONCLUSION
The plain language of section 102 dictates the outcome
of this appeal. We have jurisdiction to consider California
and the environmental groups’ ultra vires and environmental
claims to the extent those claims do not “aris[e] from” the
Secretary’s waiver determinations under section 102(c).
The Prototype, San Diego, and Calexico Projects are
authorized under section 102(a)’s broad grant of authority,
which is not limited by section 102(b). The environmental
claims are precluded by the Secretary’s waiver of NEPA,
CZMA, and the APA.
AFFIRMED.
CALLAHAN, Circuit Judge, dissenting:
If we could reach the merits of these appeals, I would
concur in my colleagues’ opinion. But I read Section 102 of
the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”) as limiting review of
the district court’s decision to review by certiorari in the
Supreme Court. Accordingly, I would dismiss these appeals.
As noted by my colleagues, we begin with the language
of the statute:
(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
IN RE BORDER INFRASTRUCTURE ENVTL. LITIG. 27
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.
(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). A cause
of action or claim may only be brought
alleging a violation of the Constitution of the
United States. The court shall not have
jurisdiction to hear any claim not specified in
this subparagraph.
(B) Time for filing of complaint. . . .
(C) Ability to seek appellate review.—An
interlocutory or final judgment, decree, or
order of the district court may be reviewed
only upon petition for a writ of certiorari to
the Supreme Court of the United States.
IIRIRA § 102(c).
Section 102(c)(2)(A) first provides that district courts
“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),” and then states “[a] cause of action or claim
28 IN RE BORDER INFRASTRUCTURE ENVTL. LITIG.
may only be brought alleging a violation of the Constitution
of the United States.” My colleagues do not think that the
second clause modifies the district court’s jurisdiction.
Rather, the majority holds that the district court has
jurisdiction to consider not just plaintiffs’ constitutional
claims, but also their ultra vires claims.
I have questions as to the majority’s interpretation of the
statute, but recognize that the presumption that Congress
does not intend to deny all judicial review arguably provides
a basis for the district court considering the plaintiffs’ ultra
vires claims. See Leedom v. Kyne, 358 U.S. 184, 190 (1958)
(noting that courts “cannot lightly infer that Congress does
not intend judicial protection of rights it confers against
agency action taken in excess of delegated powers.”).
But even accepting that the district court may consider
some of plaintiffs’ ultra vires claims, we do not have
jurisdiction to review its decision. Section 102(c)(2)(C)’s
direction is clear and unequivocal: “An interlocutory or final
judgment, decree, or order of the district court may be
reviewed only upon petition for a writ of certiorari to the
Supreme Court of the United States.” It covers all
conceivable decisions by a district court: orders, decrees, and
interlocutory and final judgments. It states that review is
“only upon petition for a writ of certiorari.” IIRIRA
§ 102(c)(2)(C). I read this subsection as requiring that for
all actions filed in a district court that arise “from any action
undertaken, or any decision made, by the Secretary of
Homeland Security pursuant to paragraph (1),” appellate
review is limited to the Supreme Court. IIRIRA § 102(c)(1).
Moreover, as Congress has provided for appellate review,
there is no reason not to abide by the statute’s plain intent.
See Flores-Miramontes v. I.N.S., 212 F.3d 1133, 1136 (9th
Cir. 2000) (noting that if plaintiff “can raise his claims
IN RE BORDER INFRASTRUCTURE ENVTL. LITIG. 29
elsewhere . . . we need not read an exception into the
jurisdiction-stripping provision at issue.”).
The majority circumvents the statute’s restriction on
appellate jurisdiction by arguing that the ultra vires claims
do not “arise out of” the Secretary’s waiver of legal
requirements under § 102(c)(1). This ignores the obvious
thrust of the plaintiffs’ complaints, which challenge the
Secretary’s authority to “waive all legal requirements” on
both constitutional and statutory grounds. Indeed, their
claims under the National Environmental Policy Act,
42 U.S.C. § 4321 et. seq., the Administrative Procedure Act,
5 U.S.C. § 551 et. seq., and the Coastal Zone Management
Act, 16 U.S.C. § 1451 et. seq., primarily assert that the
Secretary cannot waive the procedural requirements of those
statutes.
It is true that plaintiffs’ assertions that the Secretary lacks
any authority to construct border walls are arguably separate
from plaintiffs’ arguments concerning the Secretary’s ability
to waive legal requirements. But these are weak secondary
arguments that the district court and the majority correctly
reject. These are arguments that would be raised at different
times, possibly in different fora, but for the Secretary’s
exercise of authority under § 102(c)(1). Moreover, the
district court’s rejection of collateral or secondary arguments
in litigation that primarily challenge the Secretary’s exercise
of authority under § 102(c)(1) remains subject to the
appellate restriction in § 102(c)(2)(C). One of the purposes
of the restriction on appellate jurisdiction is to expedite
appellate review and this purpose is compromised if the
losing parties are allowed to seek review of some issues in
the court of appeal and others in the Supreme Court.
30 IN RE BORDER INFRASTRUCTURE ENVTL. LITIG.
Accordingly, I dissent from the majority’s opinion
because § 102(c)(2)(C) restricts appellate review of the
district court’s decisions in these cases to the Supreme Court.