Del Mar v. United States

640 F.Supp.3d 112

RANCHO VISTA DEL MAR, Plaintiff, v. UNITED STATES of America et al., Defendants.

No. 22-cv-141 (DLF)

United States District Court, District of Columbia

Signed November 14, 2022

Nancie G. Marzulla, Marzulla Law, LLC, Washington, DC, for Plaintiff.

Clifford Eugene Stevens, Jr., U.S. Department of Justice Environmental and Natural Resources, Washington, DC, for Defendants.

MEMORANDUM OPINION

DABNEY L. FRIEDRICH, United States District Judge

Rancho Vista del Mar, a corporation that owns nearly 500 acres of land adjacent to the Mexican border in San Diego County, brings this suit against the United States, the Department of Homeland Security (DHS) and its Secretary, and the Chief Patrol Agent for the San Diego Sector of Customs and Border Protection (CBP). See Compl. ¶¶ 1-5, Dkt. 1. Rancho Vista alleges that the government's decision "to terminate the construction contracts and abandon work on the partially finished border fence" adjacent to Rancho Vista's property violated the Administrative Procedure Act, the National Environmental Policy Act, and the Endangered Species Act. Id. at 1; see also id. ¶¶ 16, 17, 21. Before the Court is the defendants' Motion to Dismiss, Dkt. 12. For the reasons that follow, the Court will grant the motion.

I. BACKGROUND

A. Statutory Framework

The APA permits judicial review of "final agency action" unless it "is committed to agency discretion by law" or a "statute preclude[s] judicial review." 5 U.S.C. §§ 701(a), 704. It empowers the Court to "hold unlawful and set aside" agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id. § 706(2)(A). In an arbitrary and capricious challenge, the core question is whether the agency's decision was "the product of reasoned decisionmaking." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).

The National Environmental Policy Act (NEPA) "establishes procedural requirements to ensure that the government gives 'appropriate consideration' to environmental impacts before undertaking major actions." Gulf Restoration Network v. Haaland, 47 F.4th 795, 798 (D.C. Cir. 2022) (quoting 42 U.S.C. § 4332(2)(B)-(C)). Among other things, it requires the agency "to take a 'hard look' at the reasonably foreseeable impacts of a proposed major federal action" and to "consider alternatives to the proposed action." Id. (quotation marks omitted). The agency must prepare and publish an environmental impact statement to that effect. See 42 U.S.C. § 4332(C); Friends of Cap. Crescent Trail v. Fed. Transit Admin., 877 F.3d 1051, 1055 (D.C. Cir. 2017). The statute is a procedural one, "designed to ensure fully informed and well-considered decision[s] by federal agencies," and it "does not mandate particular results." Del. Riverkeeper Network v. FERC, 753 F.3d 1304, 1309-10 (D.C. Cir. 2014) (quotation marks omitted).

The Endangered Species Act (ESA) likewise imposes requirements on federal agencies before taking certain actions. See 16 U.S.C. § 1531 et seq. For instance, "[i]f an agency concludes that its action 'may affect' a listed species or critical habitat, then the agency must pursue either formal or informal consultation with the [National Marine Fisheries Service] or Fish and Wildlife [Service]." Ctr. for Biological Diversity v. Dep't of Interior, 563 F.3d 466, 474-75 (D.C. Cir. 2009) (citing 16 U.S.C. § 1536(a)(2); 50 C.F.R. §§ 402.13, 402.14). "If the agency determines that its action will not affect any listed species or critical habitat, however, then it is not required to consult with [National Marine Fisheries] or Fish and Wildlife." Id. at 475.

B. Factual Background¹

In February 2019, former President Trump declared a national emergency requiring the use of armed forces at the southern border of the United States. Pres. Proc. No. 9844, 84 Fed. Reg. 4949 (Feb. 15, 2019). In that proclamation, the President "invoked and made available" to the Secretary of Defense a statutory authority applicable during national emergencies requiring armed forces. Id. (citing 10 U.S.C. § 2808). That statute, in turn, allows "the Secretary of Defense, without regard to any other provision of law," to "undertake military construction projects" necessary to help address the emergency. 10 U.S.C. § 2808(a).

Invoking § 2808 authority, the Secretary of Defense then "determined that 11 military construction projects along the international border with Mexico" were "necessary to support the use of the armed forces in connection with the national emergency." Memorandum from Mark Esper, Secretary of Defense, to Secretaries of the Military Departments, et al., Guidance for Undertaking Military Construction Projects Pursuant to Section 2808 of Title 10, U.S. Code (Sept. 3, 2019) at 1, Defs.' Mot. Ex. A, Dkt. 12-1 (Sec'y of Def. Mem.). One of those projects was "San Diego Project 4," which planned for the Secretary of the Army to construct 1.5 miles of border fence in the Otay Mesa area of California. See id., Attach.

The Department of Defense (DOD) sought a strip of land owned by Rancho Vista on which to build that fence. Compl. ¶ 9. On March 21, 2019, Rancho Vista deeded approximately seventeen acres to the United States, while retaining nearly 500 adjacent acres. Id. ¶¶ 8-9. About a year later, in March 2020, DOD began San Diego Project 4.² Id. ¶ 10. The Secretary authorized construction to begin "without regard to" the NEPA or the ESA. Sec'y of Def. Mem. at 1. Over the next several months, government contractors extensively graded and excavated the land, poured concrete foundations, installed steel bollards, and completed portions of the fence. Compl. ¶¶ 10-11.

After taking office, President Biden terminated the national emergency at the southern border. Id. ¶ 12 (citing Pres. Proc. No. 10142, 86 Fed. Reg. 7225 (Jan. 20, 2021)). The President declared that "the authorities invoked in [the February 2019] proclamation will no longer be used to construct a wall at the southern border." Pres. Proc. No. 10142. He directed the DOD and DHS Secretaries to "pause work on each construction project on the southern border wall, to the extent permitted by law, as soon as possible but in no case later than seven days from the date of this proclamation." Id. § 1(a)(i).

Following President Biden's declaration, DOD immediately directed "all border barrier military construction projects" authorized by § 2808's emergency authority to be "pause[d]," no new contracts awarded, and no new expenses incurred. Memorandum from David Norquist, Deputy Secretary of Defense, to Chairman of the Joint Chiefs of Staff, et al., Department of Defense Actions Regarding the Proclamation of January 20, 2021 (Jan. 23, 2021) at 2, Defs.' Mot. Ex. B, Dkt. 12-2 (First Deputy Sec'y of Def. Mem.). The Deputy Secretary subsequently instructed the Secretary of the Army to "take immediate action to . . . cancel all section 2808 border barrier construction projects" on April 30, 2021. Memorandum from Kathleen Hicks, Deputy Secretary of Defense, to Secretary of the Army, et al., Department of Defense Actions Implementing Presidential Proclamation 10142 (Apr. 30, 2021) at 1, Defs.' Mot. Ex. C, Dkt. 12-3 (Second Deputy Sec'y of Def. Mem.). This included all of the eleven projects laid out in the earlier memorandum, including San Diego Project 4. See First Deputy Sec'y of Def. Mem. at 2.

Accordingly, government contractors were instructed to cease all work on the portion of the border fence next to Rancho Vista's property. Compl. ¶ 13. At that point, though portions of the fence were already erected, a 700-foot gap remained. Id. ¶ 11. The contractors left the site uncleaned, partially excavated, and with both installed and uninstalled materials left behind. Id. According to Rancho Vista, the abandonment of the construction site "has caused erosion, desedimentation, destruction of habitat, and threatened the continued existence of endangered species on and near Rancho Vista's property," id. ¶ 15, part of which is designated as critical habitat for several endangered species, id. ¶ 1. In addition, because several miles of fence were constructed on either end, the 700-foot gap continuously "channels illegal immigrants crossing the border from Mexico" directly onto Rancho Vista's property. Id. ¶ 13.

C. Procedural History

Rancho Vista brought suit on January 20, 2022. It first alleges that the government's decision to order contractors to stop all work on the fence bordering Rancho Vista's property was arbitrary, capricious, and contrary to law, in violation of the Administrative Procedure Act (APA). Id. ¶ 16. It also claims that the government abandoned the site without following the procedures required by the NEPA and the ESA. Id. ¶¶ 19, 25. Rancho Vista asks the Court to hold unlawful and set aside the government's decision to cease all construction on the fence bordering its property, id. at 9, and to order the government to finish and clean up the construction site, id. at 10.

The government moved to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure on the ground that Rancho Vista lacks Article III standing. See Defs.' Mot. at 12-17, 26-31. It alternatively moved to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted under any of the three statutes. See id. at 17-26.

II. LEGAL STANDARDS

Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a defendant to move to dismiss an action for lack of subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Federal law empowers federal district courts to hear only certain kinds of cases, and it is "presumed that a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). When deciding a Rule 12(b)(1) motion, the court must "assume the truth of all material factual allegations in the complaint and construe the...