600 F.Supp.3d 994
D. Ariz.2022Background
- Arizona sued DHS, DoD, and federal officials challenging a so-called "Population Augmentation Program" (a set of policies the State says increased immigration to Arizona), filing a First Amended Complaint on July 12, 2021.
- The FAC alleges five interlocking components (e.g., stopping border-wall construction, rescinding the Migrant Protection Protocols (MPP), modifying enforcement/fines, parole exemptions, and detention guidance) and asserted NEPA, APA, and constitutional claims.
- Arizona moved for a preliminary injunction; the court denied that motion in February 2022 and then considered Defendants’ motion to dismiss and Arizona’s request for jurisdictional discovery.
- The Court: denied jurisdictional discovery; granted Defendants’ motion to dismiss in part—dismissing Counts One, Two, and Seven without leave to amend and Count Five with leave to amend; and required supplemental briefing on Counts Three and Six (both MPP-related) pending the Supreme Court’s decision in Biden v. Texas.
- The Court found (a) Count One (programmatic NEPA) fails as an impermissible broad programmatic attack; (b) Count Two (border-wall NEPA) lacks causation and/or fails on the merits; (c) Counts Three and Six (MPP NEPA and APA claims) may be affected or moot due to parallel litigation (Texas v. Biden), so supplemental briefing was ordered; and (d) Count Seven (Take Care Clause) is dismissed as essentially a statutory claim improperly recast as constitutional and for lack of standing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Count One — Programmatic NEPA challenge to "Population Augmentation Program" | Arizona: agency should have prepared a programmatic EIS for coordinated policies increasing migration. | Defendants: claim is an impermissible broad programmatic attack and components are nonreviewable. | Dismissed under Rule 12(b)(6): programmatic NEPA attack precluded by precedent (e.g., Whitewater Draw). |
| Count Two — NEPA challenge to termination of border-wall construction | Arizona: termination caused gaps that predictably increase crossings and environmental harm. | Defendants: Arizona lacks standing (causation/redressability); decision is nonreviewable or maintains status quo; IIRIRA waivers apply. | Dismissed for lack of subject-matter jurisdiction (causation); alternatively fails on the merits under Rule 12(b)(6). |
| Count Three — NEPA challenge to termination of MPP | Arizona: DHS failed to prepare an EIS before ending MPP (June 2021 termination). | Defendants: lack of standing, committed to discretion, nonreviewable, enforcement decision not a "major federal action." | Court deferred resolution and ordered supplemental briefing on mootness/standing because of subsequent DHS memoranda, Fifth Circuit injunction and Supreme Court review in Biden v. Texas. |
| Count Five — APA arbitrary-and-capricious challenge to border-wall termination | Arizona: termination was arbitrary, lacked reasoned decision-making and environmental study. | Defendants: lack of standing and decisions committed to DHS discretion; no statutory standards to review. | Dismissed for lack of standing (same causation problems as Count Two). Leave to amend granted limited to curing standing defects. |
| Count Six — APA arbitrary-and-capricious challenge to MPP termination | Arizona: MPP termination was abrupt and failed to consider relevant factors. | Defendants: same jurisdictional and nonreviewability defenses as for Count Three. | Court postponed merits; ordered supplemental briefing on Counts Three and Six pending Supreme Court decision to ensure subject-matter jurisdiction. |
| Count Seven — Take Care Clause claim challenging border-wall termination | Arizona: executive refused to spend appropriated funds and thus violated Take Care Clause. | Defendants: Take Care Clause does not provide a private right for affirmative relief; claim is statutory in substance and barred by APA framework; lack of standing. | Dismissed. Court concluded claim is essentially statutory, likely nonjusticiable as a standalone Take Care cause, and Arizona lacks standing tied to wall-related injuries. |
| Jurisdictional discovery | Arizona: targeted discovery from Defendants could supply facts to establish traceability/causation (e.g., Border Patrol studies, planning documents). | Defendants: discovery untimely, speculative, and unlikely to cure traceability problems; many relevant claims fail on non-jurisdictional grounds. | Denied as untimely and futile; discovery would not likely cure traceability/standing defects and several counts fail on merits regardless. |
Key Cases Cited
- Whitewater Draw Natural Resource Conservation Dist. v. Mayorkas, 5 F.4th 997 (9th Cir. 2021) (precludes broad programmatic APA/NEPA attacks and cautions about predicting third‑party migration responses)
- Texas v. Biden, 20 F.4th 928 (5th Cir. 2021) (analyzed standing re: MPP termination and issued injunctive relief concerning MPP)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (establishes constitutional standing requirements: injury, causation, redressability)
- Massachusetts v. EPA, 549 U.S. 497 (2007) (states receive "special solicitude" in standing analysis but traceability still required)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standards and rejection of conclusory allegations)
- Thornhill Pub. Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730 (9th Cir. 1979) (factual Rule 12(b)(1) attacks permit courts to weigh evidence and require plaintiff to prove jurisdiction)
- Dalton v. Specter, 511 U.S. 462 (1994) (distinguishes statutory excess-of-authority claims from constitutional claims)
- Mississippi v. Johnson, 71 U.S. 475 (1866) (historical skepticism about judicial enforcement of President’s duty under the Take Care Clause)
- Center for Biological Diversity v. Bernhardt, 946 F.3d 553 (9th Cir. 2019) (rejects a facial Take Care Clause theory where the claim is essentially statutory and involves validly enacted legislation)