Border Infrastructure Envtl. Litig. v. U.S. Dep't of Homeland Sec.
915 F.3d 1213
9th Cir.2019Background
- In 2017 DHS, acting under a Trump Executive Order, planned and began construction of border barrier projects in San Diego and Calexico, CA (prototype panels, replacement of primary and secondary fencing). DHS published Federal Register notices invoking IIRIRA §102(c)(1) to waive numerous federal environmental and administrative laws for designated project areas (San Diego Waiver Aug. 2, 2017; Calexico Waiver Sept. 12, 2017).
- California and several environmental groups sued to enjoin the projects and to challenge the waivers, alleging ultra vires (statutory) claims, violations of NEPA/CZMA/APA, and constitutional claims. District court consolidated suits and granted summary judgment for DHS.
- The Ninth Circuit considered whether it had jurisdiction to hear the appeals given IIRIRA §102(c)(2)’s jurisdictional bar and direct-review-to-Supreme-Court provision, and whether DHS had statutory authority under §102(a)/(b) to carry out the projects.
- The court divided plaintiffs’ claims: (1) ultra vires claims challenging statutory authority to build (derive from §102(a)/(b)); (2) ultra vires claims challenging the waivers themselves (derive from §102(c)); (3) environmental claims alleging violations of NEPA/CZMA/APA in planning/construction (some predate waivers); (4) constitutional claims (challenge waivers). Claims that "arise from" the waiver are subject to the §102(c)(2) bar and exclusive district-court jurisdiction with appellate review only by certiorari to the Supreme Court.
- The panel held it had jurisdiction over ultra vires and environmental claims that do not "arise from" the waiver determinations, concluded §102(a) authorizes replacement/enhancement of existing barriers in areas of high illegal entry, found §102(b) does not limit §102(a), and ruled the Secretary validly waived NEPA/CZMA/APA for the waived projects. Summary judgment for DHS affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ninth Circuit has appellate jurisdiction over non-constitutional ultra vires and environmental claims given IIRIRA §102(c)(2)’s jurisdictional bar and certiorari-only review | §102(c) strips appellate review; all claims stem from Secretary's waiver so must be reviewed only by Supreme Court | Claims that do not "aris[e] from" the waiver (e.g., core §102(a)/(b) authority or pre-waiver NEPA claims) fall outside §102(c) and are reviewable by courts of appeals | Ninth Circuit has jurisdiction over claims that do not originate in the waiver determination; claims that "arise from" the waiver are subject to district-court exclusivity and certiorari-only appellate review |
| Whether DHS exceeded statutory authority in building replacement/enhancement fencing (§102(a)) | §102(a) authorizes only construction of new barriers that add miles; replacement of existing fencing is not "additional" | "Additional" includes supplemental, replacement, maintenance, and enhancement; §102(a) permits necessary actions to install barriers and remove obstacles | §102(a) authorizes replacement/enhancement of existing barriers; projects are "additional physical barriers" |
| Whether projects are located in "areas of high illegal entry" required by §102(a) | Plaintiffs: San Diego/El Centro stats are not sufficiently high compared to other sectors or historical rates | DHS: objective metrics (apprehensions, seizures) show high illegal entry; statute does not require comparative ranking | Court: DHS evidence shows the areas are "in areas of high illegal entry"; challenge to Secretary's selection invokes discretionary judgments limited by §102(c) and APA limits |
| Whether §102(b) constrains §102(a) (e.g., mileage/deadline limits) | §102(b)’s fencing, mileage, and deadlines define and limit §102(a)'s scope | §102(b) designates priority projects and parameters but does not nullify §102(a)'s independent, broader authorization | §102(b) does not restrict §102(a); §102(b) identifies priorities but does not displace §102(a)’s general grant of authority |
Key Cases Cited
- Wolfe v. BNSF Ry. Co., 749 F.3d 859 (9th Cir. 2014) (standard of review for summary judgment)
- Citicorp Real Estate, Inc. v. Smith, 155 F.3d 1097 (9th Cir. 1998) (summary-judgment evidentiary framing)
- In re Tristar Esperanza Props., LLC, 782 F.3d 492 (9th Cir. 2015) (interpretation of "arising out of" language)
- Underwriters at Lloyd's of London v. Cordova Airlines, Inc., 283 F.2d 659 (9th Cir. 1960) (definitions of "arising out of")
- Louisville & Nashville R.R. v. Mottley, 211 U.S. 149 (U.S. 1908) (well-pleaded complaint rule; federal-question jurisdiction principles)
- Bennett v. Spear, 520 U.S. 154 (U.S. 1997) (final agency action for APA review)
- Marx v. Gen. Revenue Corp., 568 U.S. 371 (U.S. 2013) (relationship between specific and general statutory provisions)
- Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825 (U.S. 1988) (avoidance of statutory superfluity)
- Leedom v. Kyne, 358 U.S. 184 (U.S. 1958) (narrow exception preserving judicial review where agency action violates "clear and mandatory" statutory language)