Ninth Circuit Affirms Grant of Summary Judgment to DHS in Executive Order 13767-Related Litigation

On February 11, the U.S. Court of Appeals for the Ninth Circuit affirmed the District Court’s decision to grant a motion for summary judgment disposing of a complaint that the decision of the Secretary of Homeland Security (DHS) to expedite construction of border barriers in the San Diego and Calexico, CA border crossing areas was inconsistent with the Secretary’s powers under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), as well as  the National Environmental Policy Act (NEPA) and other authorities. The case is In Re Border Infrastructure Environmental Litigation (Center for Biological Diversity, et al., v. U.S. Department of Homeland Security, et al.).

“As a threshold matter, we have jurisdiction to consider the ‘predicate legal question’ of whether IIRIRA authorizes the contested projects. Because the projects are statutorily authorized and DHS has waived the environmental laws California and the environmental groups seek to enforce, we affirm the district court’s grant of summary judgment to DHS.”

Executive Order 13767 directed federal agencies to “deploy all lawful means to secure the Nation’s Southern Border.” Pursuant to her authority under IIRIRA, the Secretary published two Federal Register notices waiving all legal requirements otherwise applicable to these border security projects (located at San Diego and Calexico, CA) to expedite their completion. As the Ninth Circuit notes, the Secretary of DHS has long had the authority to install additional physical barriers and roads in the vicinity of the U.S. border, and to waive all legal requirements that, in the Secretary’s sole discretion, are necessary to secure expeditious construction of these barriers and roads.”

The State of California and several environmental groups challenged this decision, but “because these projects are statutorily authorized and DHS has waived the environmental laws California and the environmental groups seek to enforce, we affirm the district court’s grant of summary judgment to DHS.” The District Court held that IIRIRA created a jurisdictional bar that prohibited the District Court from hearing non-constitutional claims, and dismissed the plaintiffs’ constitutional claims. Nevertheless, the panel majority concluded that it could still review the separate ultra vires and environmental claims, and concluded that even these claims were precluded by the Secretary’s waiver, as permitted by law, of NEPA, the Administrative Procedures Act and the Coastal Zone Management Act.

In dissent, Judge Callahan argued that the Ninth Circuit did not have the authority to review these decisions because the IIRIRA limited any appellate review to the Supreme Court, and the Ninth Circuit did not have jurisdiction to review these appeals.