Manzanita Band of the Kumeyaay Nation v. Wolf

496 F.Supp.3d 257

MANZANITA BAND OF the KUMEYAAY NATION, et al., Plaintiffs,

v.Chad WOLF, et al., Defendants.

Case No. 1:20-cv-02712 (TNM)

United States District Court, District of Columbia.

Signed October 16, 2020

Whitney Angell Leonard, Pro Hac Vice, Sonosky, Chambers, Sachse, Miller & Monkman, LLP, Anchorage, AK, Frank Sharp Holleman, IV, Sonosky, Chambers, Sachse, Endreson & Perry, LLP, Washington, DC, Colin Cloud Hampson, Sonosky, Chambers, Sachse, Endreson & Perry, LLP, Bonita, CA, for Plaintiffs Manzanita Band of the Kumeyaay Nation, Campo Kumeyaay Nation, Ewiiaapaayp Band of Kumeyaay Indians, Iipay Nation of Santa Ysabel, John Elliott, Kumeyaay Heritage Preservation Council.

Whitney Angell Leonard, Pro Hac Vice, Sonosky, Chambers, Sachse, Miller & Monkman, LLP, Anchorage, AK, Frank Sharp Holleman, IV, Sonosky, Chambers, Sachse, Endreson & Perry, LLP, Washington, DC, Mark Radoff, Sycuan Band of the Kumeyaay Nation, El Cajon, CA, Colin Cloud Hampson, Sonosky, Chambers, Sachse, Endreson & Perry, LLP, Bonita, CA, for Plaintiff Sycuan Band of the Kumeyaay Nation.

Andrew I. Warden, Bradley Thomas Craigmyle, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

TREVOR N. McFADDEN, U.S.D.J.

This case is about whether the Government can build the border wall on federal land notwithstanding concerns that Native American gravesites may be disturbed in the process. Plaintiffs are affiliated with the Kumeyaay Nation. They seek an expedited preliminary injunction to halt construction of two barrier projects along the U.S.-Mexico border in California. The Government argues that Kumeyaay religious or cultural materials have yet to be identified within the construction sites and that there are protocols in place to avoid or mitigate any potential harm in the future. A preliminary injunction is an extraordinary remedy that demands a clear showing of imminent harm that is both certain and great. Plaintiffs have not met this high standard. So the Court will deny their motion for expedited injunctive relief.

I.

Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") grants broad authority to Defendants Department of Homeland Security ("DHS") and U.S. Customs and Border Patrol ("CBP") to build "border barrier infrastructure along the southern border." Defs.’ Opp'n to Pls.’ Mot. for Prelim. Inj. ("Defs.’ Opp'n") at 12, ECF No. 16.¹ The IIRIRA's statutory scheme reflects congressional intent to ensure that construction proceeds expeditiously, unimpeded by litigation that has historically beset such projects. See Ctr. for Biological Diversity v. McAleenan , 404 F. Supp. 3d 218, 239 (D.D.C. 2019) (concluding it was "crystal clear that Congress intended to eliminate litigation that would delay the expeditious construction of border security infrastructure, to the fullest extent possible, i.e. , to the extent constitutionally allowed." (cleaned up)). It authorizes the DHS Secretary to "waive all legal requirements such Secretary, in such Secretary's sole discretion, determines necessary." IIRIRA § 102(c)(1).

There also is limited judicial review of these waivers. A federal court can only consider a cause or claim arising from the waiver based on a constitutional violation. Id. § 102(c)(2)(A). And a claim must be brought within sixty days of the waiver. Id. § 102(c)(2)(B). Even for these constitutional challenges, the IIRIRA only provides a limited right of appeal. Any final or interlocutory decision on these waivers "may be reviewed only upon petition for a writ of certiorari to the Supreme Court of the United States." Id. § 102(c)(2)(C).

Invoking the IIRIRA, DHS and other government agencies have set out to construct barrier projects at different locations along the U.S.-Mexico border. See Defs.’ Opp'n at 14. This has prompted litigation all over the country as various entities and individuals seek to halt construction for different reasons, and with mixed results. Last year, the Supreme Court stayed an injunction issued against border barrier construction. See Trump v. Sierra Club , ––– U.S. ––––, 140 S. Ct. 1, 204 L.Ed.2d 1170 (2019). And it recently declined to lift that stay. See Trump v. Sierra Club , ––– U.S. ––––, 140 S. Ct. 2620, 207 L.Ed.2d 1144 (2020). Since the Supreme Court's initial stay decision, other courts have denied or stayed injunctions halting construction of different border barrier projects. See Defs.’ Opp'n at 48 (citing cases). This includes a district court that last month considered and denied a similar preliminary injunction request brought by another Indian tribe of the Kumeyaay Nation involving the same barrier projects. See id. Ex. 1, ECF No. 48-1.

Construction of the barrier projects at issue here is taking place on a narrow strip of federal land that parallels the U.S.-Mexico border in San Diego and Imperial Counties, California (collectively, the "Projects"). Compl. for Decl. & Inj. Relief ("Compl.") ¶ 51, ECF No. 1; Decl. of Paul Enriquez ("Enriquez Decl.") ¶ 11, ECF No. 16-5. In these areas, "CBP has long had a border security presence." Enriquez Decl. ¶ 18. Most of the construction—fourteen of the twenty miles—will replace existing fencing. Id. ¶¶ 14, 17. And the Projects are located within an area that "functions primarily as a law enforcement zone." Id. ¶ 11. DHS identified the Projects as drug-smuggling corridors. Defs.’ Opp'n at 15.

Exercising the authority under the IIRIRA, Defendant Chad Wolf purported to waive various federal laws that would otherwise apply to construction of the Projects.² See Compl. ¶¶ 52, 54; Enriquez Decl. ¶¶ 12, 15. In effect then, construction proceeded with the understanding that these federal laws do not apply to the Projects. Mot. for TRO & Prelim. Inj. ("Pls.’ Mot.") at 15, ECF No. 7.

Plaintiffs are affiliated with the Kumeyaay Nation, which consists of thirteen federally recognized Indian tribes with reservations in southern California. Compl. ¶ 1. They include five tribes of the Kumeyaay Nation, a tribe member, and the Kumeyaay Heritage Preservation Council (collectively, the "Kumeyaay"). Id. ¶¶ 6–13. Generations of Kumeyaay members have practiced their religion and culture in the United States and Mexico. Pls.’ Mot. at 17. This requires "access to, and the availability of, the sacred sites, mountains, trails, landscape, and cultural and natural resources in the region." Id. at 21.

The Kumeyaay consider the treatment of human remains sacred to their religious beliefs. Id. at 17. They believe that "a person's soul cannot rest in the afterlife if the remains are disturbed, or if parts of the body of the deceased are separated after death." Id. In the event of disinterment or separation from the body, the Kumeyaay "engage in religious ceremonies to restore peace to the souls of the dead." Id. According to the Kumeyaay, their religious and cultural practices are now at risk.

The Kumeyaay claim that the land for the Projects contains "numerous sites of longstanding, documented, and continuing cultural and religious importance to the Kumeyaay people." Id. They allege that while the construction "involves substantial ground-disturbing activities," the Government has not established sufficient consultation and mitigation procedures to protect their religion and culture. Compl. ¶¶ 91, 93. To the Kumeyaay, discovery of burial sites and human remains is "inevitable." Pls.’ Mot. at 22. And they cannot conduct "the ceremonies necessary to rest the souls of the deceased in peace." Id.

The Kumeyaay filed a Complaint against DHS, the CBP, the U.S. Army Corps of Engineers, and several individuals within these agencies in their official capacities (collectively, the "Government"). Compl. ¶¶ 14–19. They raise claims under the Religious Freedom Restoration Act of 1993 ("RFRA"), the First Amendment, and the federal laws Wolf purported to waive. See id. ¶¶ 146–84. The Kumeyaay seek declaratory relief and an injunction barring more construction activity until the Government satisfies its consultation and statutory obligations. Id. at 65–67.

Two days after filing the Complaint, the Kumeyaay moved separately for a temporary restraining order and preliminary injunction repeating their request to halt construction of the Projects until adequate consultation and review procedures can be established.³ See Pls.’ Mot. The parties completed briefing on this motion, and the Court held a hearing. The motion is now ripe.

II.

Preliminary injunctions are both "extraordinary and drastic." Munaf v. Geren , 553 U.S. 674, 689, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008) (cleaned up). They are "never awarded as of right." Id. at 690, 128 S.Ct. 2207. And they "should not work to give a party essentially the full relief he seeks on the merits." Dorfmann v. Boozer , 414 F.2d 1168, 1173 n.13 (D.C. Cir. 1969) (per curiam). Preliminary injunctions are reserved for situations when "it is manifest that the normal legal avenues are inadequate." Id. at 1174.

To secure a preliminary injunction, the moving party "must establish that [it] is likely to succeed on the merits, that [it] is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [its] favor, and that an injunction is in the public interest." Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). And it "may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Id. at 22, 129 S.Ct. 365.

Irreparable harm has "always" served as the "basis of injunctive relief in the federal courts." Sampson v. Murray , 415 U.S. 61, 88, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974) (cleaned up). So the D.C. Circuit "has set a high standard." Chaplaincy of Full Gospel Churches v. England , 454 F.3d 290, 297 (D.C. Cir. 2006). The alleged injury "must be both certain and great; it must be actual and not theoretical." Wis. Gas Co. v. FERC , 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam). And it must be "of...