Ctr. for Biological Diversity v. Mayorkas

Center for Biological Diversity, et al., Plaintiffs, v. Alejandro Mayorkas, ^[1] et al., Defendants.

No. CV-17-00163-TUC-CKJ

United States District Court, D. Arizona

August 20, 2021

ORDER

HONORABLE CINDY K. JOGENSON, UNITED STATES DSTRICT JUDGE

Before the Court are Plaintiffs' Motion for Summary Judgment (Doc. 63) and Defendants' Cross-Motion for Summary Judgment (Doc. 69). For the reasons that follow Plaintiffs' motion for summary judgment is GRANTED IN PART AND DENIED IN PART, and Defendants' cross-motion for summary judgment is GRANTED IN PART AND DENIED IN PART. The Court finds that Defendants violated NEPA but did not violate the ESA. Plaintiffs' request for injunctive relief is DENIED.

BACKGROUND

In 1989, President George H.W. Bush created six regional joint task forces, named Joint Task Force-Six (the “Task Force”), to coordinate anti-drug efforts between the military and local law enforcement agencies and to provide military reinforcements to those agencies for anti-drug efforts. Sean J. Kealy, Reexamining the Posse Comitatus Act: Toward A Right to Civil Law Enforcement, 21 Yale L & Pol'y Rev. 383, 419 (2003). The Task Force provides operational, engineering, and general support to law enforcement agencies that conduct operations at United States borders when the agencies request such support. (Doc. 70 at 16) The support comes in the form of the design and construction of buildings, training facilities, roads, fences, and lighting; the manning of ground patrols and listening and observation posts; and the processing and analysis of data. Id. The Task Force has always been classified as a military command unit under the United States Department of Defense. Id.

In 1994, the Department of Defense and the United States Immigration and Naturalization Service (“INS”) prepared a final programmatic environmental impact statement to comply with the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq.A.R. at 1, 15.^[2] The impact statement addressed the cumulative environmental effects of past and reasonably foreseeable Task Force activity for numerous law enforcement agencies along a 50-mile-wide border corridor in Texas, New Mexico, Arizona, and California. Id. at 15. At the time, INS-through its Border Patrol component-had been the primary beneficiary of Task Force activity and elected to be the lead agency for the preparation of the statement. Id. at 3. The statement described general Task Force projects and discussed the types of expected environmental impacts from the continuation of border-enforcement activity. Id. at 15.

In 2001, the Departments of Justice and Defense prepared a final supplemental programmatic environmental impact statement. Id. at 268. While maintaining a programmatic approach, the supplemental statement had a narrower focus than its predecessor and only addressed activity that supported INS projects from 1994 to 2001. Id. at 297; 389. The statement's focus was narrowed because the agencies felt that the document's scope was overly broad, which caused confusion among the public. Id. at 389. In addition to discussing past Task Force activity, the statement also presented the anticipated level of activity for a five-year period, dating from 2000 to 2005. Id. at 297.

In 2017, the Center for Biological Diversity (the “Center”), a non-profit environmental organization, and United States Congressman Raul Grijalva, filed suit in this Court alleging, inter alia, that the Department of Homeland Security (the “Department”)^[3] and its agency component, Customs and Border Protection, violated NEPA by failing to update their programmatic environmental analysis for border-enforcement activity^[4] since 2001. (Doc. 14 at 2) Plaintiffs also alleged that Defendants failed to consult with the United States Fish and Wildlife Service (“FWS”) concerning the impacts of border-enforcement activity on threatened or endangered species in violation of Section 7(a)(2) of the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq. Id.

In March 2019, the Department officially withdrew from programmatic and supplemental programmatic environmental impact statements. A.R. at 8832. Prior to the parties' filing of summary judgment motions, Defendants expanded the Administrative Record to include 95 individual documents covering approximately 9, 000 pages in length. Doc. 49 at 29. Defendants also supplemented the Administrative Record on multiple occasions throughout the litigation and submitted four declarations from their Environmental Planning and Historic Preservation Program Manager, which explained the reasoning behind Defendants' withdrawal from programmatic environmental impact statements and the logic surrounding other environmental decisions affecting the area in question. See Docs. 49 at 3-29; 54-3 at 2-6; 56 at 5-9; 62-1 at 2-8. At the summary judgment stage, Plaintiffs' NEPA and ESA claims remain.

PROCEDURAL HISTORY

On July 24, 2020, Plaintiffs filed their Motion for Summary Judgment (Doc. 63), Statement of Undisputed Material Facts (Doc. 65) and amended Memorandum in Support of Motion for Summary Judgment (Doc. 66). On September 18, 2020, Defendants filed their Cross-Motion for Summary Judgment (Doc. 69), Combined Opposition to Plaintiffs' Motion for Summary Judgment and Memorandum in Support of Cross-Motion for Summary Judgment (Doc. 70), Statement of Undisputed Material Facts (Doc. 71), and Response to Plaintiffs' Statement of Facts (Doc. 72). On October 30, 2020, Plaintiffs filed their Combined Opposition to Defendants' Motion for Summary Judgment and Reply Brief in Support of Motion for Summary Judgment (Doc. 73), and Response to Federal Defendants' Statement of Undisputed Material Facts (Doc. 74). On November 20, 2020, Defendants filed their Reply in Support of Cross-Motion for Summary Judgment (Doc. 75). On February 23, 2021, the Court heard oral argument on the parties' summary judgment motions. (Doc. 77) This Order follows.

LEGAL STANDARD

“The Administrative Procedure Act (“APA”) governs judicial review of agency action.” The Wilderness Soc'y v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1059 (9th Cir. 2003). “In a case involving review of final agency action under the APA, . . . the Court's role is limited to reviewing the administrative record, ” Colorado River Cutthroat Trout v. Salazar, 898 F.Supp.2d 191, 200 (D.D.C. 2012), and it “generally need not perform any fact-finding, ” All. for the Wild Rockies v. U.S. Forest Serv., No. 2:19-CV-00350-SMJ, 2020 WL 7049556, at *5 (E.D. Wash. Dec. 1, 2020). At the summary judgment stage, the court need only determine whether “as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” Id. (cleaned up).

“Agency action is valid if a reasonable basis exists for the agency's decision.” Arrington v. Daniels, 516 F.3d 1106, 1112 (9th Cir. 2008) (cleaned up). “A reasonable basis exists where the agency considered the relevant factors and articulated a rational connection between the facts found and the choices made.” Id. (citation and quotation marks omitted). “Post hoc explanations of agency action . . . cannot substitute for the agency's own articulation of the basis for its decision.” Id. at 1113. “Summary judgment thus serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review.” Colorado River, 898 F.Supp.2d at 200 (cleaned up). “When parties file cross-motions for summary judgment, the [c]ourt must consider the evidence submitted in support of both motions before ruling on either motion.” Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt., No. CV 17-8587-GW(ASX), 2019 WL 2635587, at *8 (C.D. Cal. June 20, 2019).

DISCUSSION

I. Standing

As a preliminary matter, Defendants argue that Plaintiffs lack standing to sue in federal court. (Doc. 70 at 20-25). Plaintiffs lack standing, Defendants argue, because their past injuries are not redressable through after-the-fact environmental review and their speculative fears about future injury arising from unspecified projects do not satisfy their burden to identify specific, final agency action approving a border enforcement project as the source of those fears. Id. at 10. Plaintiffs argue that their declarations establish standing by showing that they suffer injuries that are concrete, particularized, actual and imminent, fairly traceable to the challenged action, and redressable. (Doc. 73 at 8-10) The issue for the Court to determine is whether Plaintiffs' declarations satisfy the standing requirements for environmental claims that involve procedural injuries.^[5]

In Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., the Supreme Court outlined the standard for organizational standing. 528 U.S. 167 (2000). It concluded:

[T]o satisfy Article III's standing requirements, a plaintiff must show (1) it 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 traceable to the challenged action of the defendant; and (3) it is likely, as 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 members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

Id. at 181 (quotation marks omitted). “When there are multiple plaintiffs, at least one plaintiff must have standing to seek each form of relief requested in the...