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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CENTER FOR BIOLOGICAL DIVERSITY,
378 N. Main Avenue
Tucson, AZ 85701;

COMPLAINT
FOR DECLARATORY AND
INJUNCTIVE RELIEF

DEFENDERS OF WILDLIFE,
1130 17th Street N.W.
Washington, D.C. 20036; and

Case No.: __________________
ANIMAL LEGAL DEFENSE FUND,
525 East Cotati Avenue
Cotati, CA 94931,
Plaintiffs,
v.
KEVIN McALEENAN,
in his official capacity as Acting Secretary of
the U.S. Department of Homeland Security,
245 Murray Lane S.W.
Washington, D.C. 20528; and
U.S. DEPARTMENT OF HOMELAND
SECURITY,
245 Murray Lane S.W.
Washington, D.C. 20528,
Defendants.

INTRODUCTION
1.

In this action, Plaintiffs Center for Biological Diversity, Defenders of Wildlife,

and Animal Legal Defense Fund challenge three determinations made on May 15, 2019 by
Defendant Kevin McAleenan, Acting Secretary of the U.S. Department of Homeland Security
(“DHS”), waiving the application of the National Environmental Policy Act (“NEPA”), 42

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U.S.C. § 4321 et seq., the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq., and
numerous other statutory requirements in order to expedite construction of approximately 78
miles of border wall, lighting, and roads in California and Arizona (“Border Wall Projects”). See
84 Fed. Reg. 21,798 (Arizona Waiver); 84 Fed. Reg. 21,800 (El Centro, California Waiver); 84
Fed. Reg. 21,801 (Tecate, California Waiver).
2.

In issuing the three Waivers, Secretary McAleenan invoked the authority

purportedly contained in Section 102 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”), Pub. L. 104-208, Div. C, 110 Stat. 3009-546 (codified at
8 U.S.C. § 1103 note), as amended. As detailed below, the three Waivers are ultra vires and
unlawful because they exceed the limited grant of authority for such waivers contained in
IIRIRA Section 102. Moreover, any interpretation of Section 102 that would sanction the
issuance of the three Waivers would render this statutory provision so broad and unbounded in
scope that it would run afoul of the Constitutional principles of Separation of Powers, the NonDelegation Doctrine, and the Presentment Clause.
3.

Section 102 of IIRIRA directed the DHS Secretary to “install additional physical

barriers and roads . . . in areas of high illegal entry.” Section 102(a). Specifically, “in carrying
out” this mandate, the DHS Secretary was required to identify and construct a total of not less
than 700 miles of “reinforced fencing” where it would be “most practical and effective,” as well
as to complete construction of 370 miles of these border barriers within “priority areas” by
December 31, 2008. Section 102(b). By DHS’s own admission, the projects required by Section
102 have long since been completed.
4.

In addition to IIRIRA Section 102(b)’s mandate to build certain barriers by

certain dates, Section 102(c) provides that “the DHS Secretary shall have the authority to waive

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all legal requirements to ensure expeditious construction of the barriers and roads under this
Section.” (Emphasis added). Invoking this provision, the three Waivers purport to exempt
approximately 78 miles of border wall construction in California and Arizona from numerous
otherwise applicable environmental laws. However, because these projects do not fall within the
scope of projects mandated by Section 102, the proposed construction squarely does not fall
“under this section”—and, consequently, the waiver authority under Section 102(c) is
inapplicable.
5.

Plaintiffs seek a judicial declaration that DHS Acting Secretary McAleenan’s

issuance of the three waivers was ultra vires agency action that is invalid and ineffective.
Specifically, the waiver provision under Section 102(c) only applies to the measures mandated
by Section 102(b), which have already been completed because DHS has met its duty to identify
and construct 370 miles of border barriers within “priority areas” by December 31, 2008, as
required by Section 102(b)(1)(B), as well as its overlapping duty to construct a total of not less
than 700 miles of border barriers as required by IIRIRA Section 102(b)(1)(A). As such, because
the scope of the IIRIRA Section 102(c) waiver provision is limited to the border barriers and
road requirements specified by IIRIRA Section 102(b), the requirements of which have already
been fulfilled, the purported waiver of NEPA, the ESA, and numerous additional laws under the
three waivers are unlawful ultra vires acts.
6.

In the alternative, even were the Court to determine that the 78 miles of border

wall construction in California and Arizona covered by the three Waivers fall within the
particular “barriers and roads” authorized under IIRIRA Section 102 and are subject to the
waiver of legal requirements under IIRIRA Section 102(c), the three Waivers are invalid because

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the Secretary failed to comply with IIRIRA Section 102(b)(1)(C), which mandates that the DHS
Secretary consult with stakeholders prior to their issuance.
7.

Additionally or in the alternative, Plaintiffs seek declaratory relief that the three

Waivers, and the waiver authority provided by IIRIRA Section 102(c) generally, violate the U.S.
Constitution in several respects, including the Take Care Clause, the Separation of Powers
Doctrine, the Non-Delegation Doctrine, and the Presentment Clause.
JURISDICTION
8.

This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and

1346, 5 U.S.C. §§ 701 to 706, and 8 U.S.C. § 1103 note. The causes of action arise under the
laws of the United States and the U.S. Constitution. The relief requested is authorized pursuant
to 28 U.S.C. §§ 1651 and 2201 to 2202, and 5 U.S.C. §§ 701 to 706.
VENUE
9.

Venue properly vests in this Court pursuant to 28 U.S.C. § 1391(b) and (e),

because the violations are occurring in this district, and a substantial part of the events or
omissions giving rise to the claims have occurred in this district due to decisions made by the
Defendants, and/or failure(s) to act by the Defendants.
PARTIES
10.

Plaintiff CENTER FOR BIOLOGICAL DIVERSITY (“the Center”) is a non-

profit environmental organization dedicated to the protection of native species and their habitats
through science, policy, and environmental law. The Center has more than 1.5 million members
and online activists. The Center is headquartered in Tucson, Arizona, and has offices in New
Mexico and Washington, D.C., as well as numerous additional regional offices located
throughout the country, and an international office in Baja California Sur, Mexico.

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11.

The Center’s members and staff live in or regularly visit the U.S.-Mexico

borderlands region in California and Arizona. The Center’s members and staff regularly use the
myriad federal, state, and local protected lands along the U.S.-Mexico border in California and
Arizona, including areas impacted by and/or adjacent to the location of the border wall projects,
for hiking, camping, viewing and studying wildlife, photography, and other scientific, vocational
and recreational activities. These areas including protected federal lands including the Yuha
Basin Area of Critical Environmental Concern, Cabeza Prieta National Wildlife Refuge, Organ
Pipe Cactus National Monument, Coronado National Forest, Coronado National Memorial, San
Pedro Riparian National Conservation Area, and San Bernardino National Wildlife Refuge. The
Center’s members and staff derive recreational, spiritual, professional, scientific, educational,
and aesthetic benefit from their activities in these areas. The Center has a long history of
environmental advocacy within the borderlands region generally and California and Arizona
borderlands region specifically. The Center’s members and staff have specific intentions to
continue to use and enjoy these areas frequently and on an ongoing basis in the future.
12.

The Center has worked for nearly two decades to oppose environmentally harmful

border fencing and other injurious border security projects along the U.S.-Mexico border
generally, and the border wall project areas specifically. The Center also has a long history of
advocating for the protection of rare wildlife habitat and specific species that would be impacted
by the proposed 78 miles of border wall construction in California and Arizona, including jaguar,
ocelot, flat-tailed horned lizard, and Sonoran pronghorn.
13.

The Center and its members’ interests are harmed by DHS’s violations of law and

the U.S. Constitution. The proposed border wall construction in California and Arizona will
primarily replace existing “vehicle barriers” that currently allows wildlife movement with 30-

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foot border barriers that completely block movement. Cross-border movement of wildlife on
both sides of the U.S.-Mexico border is essential for numerous species, including highly
endangered species such as jaguar. Moreover, the projects will entail the construction of roads
as well as associated noise, lighting, and other impacts, which will all likely necessitate new land
clearing, grading, staging, and other associated activities impacting the surrounding environment.
The construction—which will occur without the benefit of compliance with NEPA, the ESA and
other laws—will negatively impact the protected federal lands, wildlife habitat and imperiled
species described above, which will injure the Center and its members’ aesthetic, conservation,
recreational, scientific, educational, and wildlife preservation interests in those protected federal
lands, wildlife habitats and species. These injuries would be redressed by the requested relief, as
absent the three California and Arizona Waivers, the harmful construction either would not occur
or would only occur after compliance with the requirements of NEPA, the ESA and other laws,
which are designed to eliminate, reduce and/or mitigate the negative environmental
consequences of federal agency actions.
14.

Plaintiff DEFENDERS OF WILDLIFE (“Defenders”) is a nonprofit organization

with hundreds of thousands of members across the nation, including thousands of members in
California and Arizona. Defenders’ mission is to preserve wildlife and emphasize appreciation
and protection for all species in their ecological role. Through advocacy, litigation, and other
efforts, Defenders works to preserve species and the habitats upon which they depend.
Defenders has been closely involved in policy and litigation matters associated with border wall
construction along the United States-Mexico border for more than a decade. Defenders has field
offices across the country, including in Santa Fe, New Mexico.

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15.

Defenders has organizational and membership-based interests in the preservation

and conservation of the borderlands of the Southwestern United States that will be harmed by the
construction of barriers and roads at issue in this case. For more than two decades, Defenders
has worked for the protection of borderland wildlife and ecosystems. Defenders has played a
leading role in efforts to educate the public and advocate for better integration of environmental
considerations into immigration policy generally, and into border security efforts specifically.
16.

Defenders’ members live near and regularly visit the borderlands near California

and Arizona for wildlife observation, recreation, and other uses. Defenders’ members also live
in other areas along the California and Arizona border adversely impacted by the border wall
projects being constructed throughout the area. These members have aesthetic, educational,
professional, health, and spiritual interests that will be harmed by the environmental impacts that
will result from the DHS Secretary’s decision to waive multiple laws, and consequently
eliminate the procedural and substantive protections that would have otherwise been provided by
these laws.
17.

Plaintiff ANIMAL LEGAL DEFENSE FUND (“ALDF”) is a nonprofit 501(c)(3)

organization with more than 200,000 members and supporters, thousands of whom live in
California or Arizona. ALDF represents its members interests by working to protect the lives of
animals, including wildlife, through the legal system. ALDF is headquartered on Cotati,
California, with regional offices in Los Angeles and Portland, Oregon.
18.

ALDF has an organizational and membership-based interest in ensuring the letter

and spirit of wildlife- and wildland-protection statutes are fully upheld and the constitutional
principles enabling these laws’ implementation are respected. ALDF pursues its purpose of
safeguarding animal welfare in part by persistently advocating for government adherence to

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wildlife-protection laws such as NEPA, the ESA and the Migratory Bird Treaty Act (to name a
few)—each of which has been waived by the DHS Secretary in conjunction under the three
Waivers. ALDF has expended significant organizational resources on advocacy and public
education efforts to improve environmental protections for wildlife living on protected lands
such as the borderlands at issue here, and will continue to do so if the border wall is built without
adherence to the laws the DHS Secretary is attempting to waive.
19.

ALDF’s members live in or regularly visit the U.S.-Mexico borderlands in

California and Arizona. ALDF’s members regularly use the myriad federal, state, and local
protected lands along the U.S.-Mexico border in California and Arizona—including areas
impacted by and/or adjacent to the location of the proposed 78 miles of border wall
construction—for hiking, camping, wildlife viewing and photography, and other vocational and
recreational activities. ALDF’s members derive recreational, educational, and aesthetic benefit
from their activities in these areas. ALDF’s members have specific intentions to continue to use
and enjoy these areas frequently and on an ongoing basis in the future.
20.

ALDF has an established track record of active participation in the oversight of

government activities and decision-making, particularly with regard to laws and policies
affecting wildlife. ALDF expends considerable organizational resources in doing so, including
costs associated with litigation and educating the public. ALDF regularly represents its
members’ interests in this regard by filing lawsuits, training law students and professionals, and
publishing and disseminating informational materials to its members.
21.

ALDF and its members are harmed by DHS’s issuance of the three Waivers, in

that the DHS Secretary’s decision to waive the procedural and substantive protections of
multiple laws in order to expedite the construction of barriers and roads associated with the

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California and Arizona border wall projects pose an imminent impact on the local ecosystems,
including wildlife populations. These impacts will directly harm ALDF’s members’ aesthetic
and recreational interests in their continued enjoyment of the California and Arizona
borderlands, and will additionally harm ALDF as an organization due to the forced diversion of
ALDF resources to protect the wild animals affected by the illegal border wall construction in
fulfillment of its mission.
22.

Defendant KEVIN McALEENAN, Acting Secretary of the U.S. Department of

Homeland Security, is sued in his official capacity. Acting Secretary McAleenan is the official
ultimately responsible under federal law for ensuring that the actions and management decisions
of the Department, including its component agency the U.S. Customs and Border Protection
(“CBP”) comply with all applicable laws and regulations. On May 15, 2019, Acting Secretary
McAleenan invoked the IIRIRA Section 102(c) waiver authority to issue three Waivers
Determinations authorizing approximately 78 miles of border wall construction in California and
Arizona.
23.

Defendant U.S. DEPARTMENT OF HOMELAND SECURITY is an agency

within the executive branch of the U.S. government. The Department is responsible for ensuring
border security along the U.S.-Mexico border consistent with applicable legal requirements.
STATUTORY BACKGROUND
A.

Section 102 of The Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”)
24.

Congress initially enacted IIRIRA in 1996 to, for the first time, provide federal

agencies with specific direction regarding the location and extent of specific border barriers to be
constructed. P.L. 104-208, div. C., codified at 8 U.S.C. § 1103 note. Prior to IIRIRA’s
enactment, the authority to construct border barriers derived from the general statutory

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responsibility of the Attorney General (now the DHS Secretary) to “guard the boundaries and
borders of the United States against the illegal entry of aliens.” Immigration and Nationality
Act, §103(a)(5), 8 U.S.C. §1103(a)(5). That authority continues to exist independent of IIRIRA.
25.

While it has been amended several times, IIRIRA Section 102 remains the

primary federal statutory provision addressing border barriers. Section 102(a) remains
substantively the same as originally enacted in 1996, providing the U.S. Attorney General (now
the DHS Secretary) with the general policy direction to “take such actions as may be necessary
to install additional physical barriers and roads . . . in the vicinity of the United States border to
deter illegal crossings in areas of high illegal entry into the United States.”
26.

At the time Section 102(a) was enacted, Congress also provided that “to the extent

the Attorney General determines necessary to ensure expeditious construction of the barriers and
roads under this Section” (emphasis added), the requirements of the ESA and NEPA may be
waived.
27.

As originally enacted, IIRIRA Section 102(b) “carr[ied] out subsection (a)” by

identifying specific border barriers to be constructed, establishing specific deadlines for the
construction of such barriers, and other requirements. The only border fence segment initially
mandated by Congress under IIRIRA Section 102(b) was the construction of fencing in San
Diego, California—specifically, the fortification of a 14-mile long “primary” border fence that
was completed in 1993. As originally enacted, IIRIRA did not mention construction related to
the California and Arizona border wall projects.
28.

The modifier “under this Section” in IIRIRA Section 102(c) refers solely to the

specific border fencing required under IIRIRA Section 102(b), which by its plain language

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“carries out” DHS’s general authority to ensure the “expeditious construction” of “additional
physical barriers and roads” under IIRIRA Section 102(a).
B.

The 2005 REAL ID Act Amendments to IIRIRA Section 102(c)
29.

Enacted in 2005, Section 102 of the REAL ID Act amended the Section 102(c)

IIRIRA waiver provision in two primary ways. P.L. 109-13, div. B.
30.

First, the REAL ID Act amendment expanded the IIRIRA Section 102(c) waiver

authority beyond NEPA and the ESA to permit the DHS Secretary “to waive all legal
requirements [that] such Secretary, in such Secretary’s sole discretion, determines necessary to
ensure expeditious construction of the barriers and roads under this Section” (emphasis added).
This amendment did not specify the laws that Congress authorized the Secretary to waive.
31.

Second, Section 102 of the REAL ID Act amended the waiver authority under

IIRIRA Section 102(c) to restrict judicial review concerning any waiver decision in the
following respects: (i) purporting to limit “all causes or claims” arising from any waiver
determination made by the DHS Secretary to alleged constitutional violations only; (ii) requiring
any such constitutional challenge to be filed not later than 60 days after the Secretary’s
determination, effective upon being published in the Federal Register; and (iii) eliminating
appellate court review of the district court’s decision on the alleged constitutional violations and
instead only permitting review upon a writ of certiorari to the U.S. Supreme Court.
32.

Congress intended the REAL ID Act’s amendment and expansion of the 102(c)

waiver authority, like the IIRIRA Section 102(c) waiver authority as originally enacted in 1996,
to apply to the specific border barrier and road requirements at IIRIRA Section 102(b), which
“carries out” the general border barrier policy direction at IIRIRA Section 102(a). At that time,
the only specific border barriers required under Section 102(b) remained the 14-mile San Diego,

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California fence proposals, with no mention of other fencing. Congress’s intent—that the
expansion of the IIRIRA Section 102(c) waiver authority under Section 102 of the REAL ID Act
be limited to the specific San Diego border barriers mandated by IIRIRA Section 102(b)—is
evidenced by the bill’s plain language, as well as statements by the bill’s author and co-sponsors
during the limited House Floor debate.
33.

Indeed, the bill’s official title made clear that Congress’s intent in expanding the

IIRIRA Section 102(c) waiver authority was specific to the border barrier segments identified
under Section 102(b): “To establish and rapidly implement regulations for State driver’s license
and identification document security standards, to prevent terrorists from abusing the asylum
laws of the United States, to unify terrorism-related grounds for inadmissibility and removal, and
to ensure expeditious construction of the San Diego border fence.” (Emphasis added).
34.

The intended limitation of the IIRIRA Section 102(c) waiver authority to the San

Diego double and triple layered fence specified under IIRIRA Section 102(b) was also
repeatedly emphasized by the bill’s supporters on the House Floor. As stated by the bill’s
author:
[T]he REAL ID Act will waive Federal laws to the extent necessary to
complete gaps in the San Diego border security fence, which is still
stymied 8 years after congressional authorization.
151 Cong. Rec. H454 (daily ed., Feb. 9, 2005)(Statement of Rep. Sensenbrenner)(emphasis
added); see also Cong. Rec. H471 (“H.R. 418 provides the Secretary of Homeland Security with
authority to waive environmental laws, so that the border fence running 14 miles east from the
Pacific Ocean at San Diego may finally be completed.”)(daily ed., Feb. 9, 2005)(Statement of
Rep. Hoekstra)(emphasis added). No legislation or legislative history mentions the application
of IIRIRA Section 102(c) waiver authority to apply to any border wall construction in the

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California and Arizona border wall projects.
C.

The 2006 Secure Fence Act Amendments to IIRIRA Section 102(b)
35.

President George W. Bush signed the Secure Fence Act on October 26, 2006.

P.L. 109-367.
36.

Section 3 of the Secure Fence Act (“Construction of Fencing and Security

Improvements in Border Area from Pacific Ocean to Gulf of Mexico”) significantly expanded
upon IIRIRA Section 102(b). Under the Secure Fence Act amendments to IIRIRA Section
102(b), Congress removed the provisions referring specifically to the 14-miles of fencing in San
Diego and instead directed DHS to “provide for at least 2 layers of reinforced fencing [and] the
installation of additional physical barriers, roads, lighting, cameras, and sensors” in five specific
segments along the U.S.-Mexico border totaling approximately 850 miles. Former IIRIRA
§102(b)(1)(A)(i)-(v).
37.

Congress did not specifically address the impact of the Secure Fence Act

amendments on the scope of the IIRIRA Section 102(c) waiver.
D.

The 2008 Consolidated Appropriations Act Amendments to IIRIRA Section 102(b)
38.

Just over a year after enactment of the Secure Fence Act, President George W.

Bush signed the 2008 Consolidated Appropriations Act on December 26, 2007. P.L. 110-161,
div. E.
39.

In a third and final amendment to date, Section 564 of the 2008 Consolidated

Appropriations Act amended Section 102(b) of the IIRIRA to scale back DHS’s duties with
respect to border barriers and roads as defined under the 2006 Secure Fence Act amendments.
These modifications—which remain the law to date—include: (i) eliminating the requirement
that border barriers be built in any specific locations, and instead specifying that such barriers be

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placed “along not less than 700 miles of the southwest border where fencing would be most
practical and effective”; (ii) eliminating the requirement of double-layered fencing; (iii)
amending the “priority areas” requirement to direct that DHS identify and construct 370 miles of
border barriers by December 31, 2008. IIRIRA § 102(b)(1)(A)-(B).
40.

The 2008 Appropriations Act also added a new consultation requirement to

IIRIRA Section 102(b), mandating the DHS Secretary to consult with the Secretary of the
Interior, the Secretary of Agriculture, States, local governments, Indian tribes, and property
owners in the United States to minimize the impact on the environment, culture, commerce, and
quality of life for the communities and residents located near the sites where” border barriers are
constructed. IIRIRA § 102(b)(1)(C).
41.

There have been no amendments to IIRIRA Section 102 since the 2008

Appropriations Act amendment was signed into law.
E.

IIRIRA Section 102, As Amended
42.

The relevant Sections of IIRIRA Section 102, codified at 8 U.S.C. § 1103 note, in

its current version to date provide:
(a) In general.--The Secretary of Homeland Security shall take such actions as
may be necessary to install additional physical barriers and roads (including
the removal of obstacles to detection of illegal entrants) in the vicinity of the
United States border to deter illegal crossings in areas of high illegal entry
into the United States.
(b) Construction of fencing and road improvements along the border.—
(1) Additional fencing along southwest border.—
(A) Reinforced fencing.--In carrying out subsection (a) [of this note], the
Secretary of Homeland Security shall construct reinforced fencing
along not less than 700 miles of the southwest border where fencing
would be most practical and effective and provide for the installation
of additional physical barriers, roads, lighting, cameras, and sensors
to gain operational control of the southwest border.
(B) Priority areas.--In carrying out this Section [Pub. L. 104-208, Div.
C, Title I, § 102, Sept. 30, 1996, 110 Stat. 3009-554, which amended

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this Section and enacted this note], the Secretary of Homeland
Security shall—
(i)
identify the 370 miles, or other mileage determined by the
Secretary, whose authority to determine other mileage shall
expire on December 31, 2008, along the southwest border
where fencing would be most practical and effective in
deterring smugglers and aliens attempting to gain illegal entry
into the United States; and
(ii)
not later than December 31, 2008, complete construction of
reinforced fencing along the miles identified under clause (i).
(C) Consultation.
(i)
In general.--In carrying out this Section, the Secretary of
Homeland Security shall consult with the Secretary of the
Interior, the Secretary of Agriculture, States, local
governments, Indian tribes, and property owners in the United
States to minimize the impact on the environment, culture,
commerce, and quality of life for the communities and
residents located near the sites at which such fencing is to be
constructed
(ii)
Savings provision.--Nothing in this subparagraph may be
construed to—
(I)
create or negate any right of action for a State, local
government, or other person or entity affected by this
subsection; or
(II)
affect the eminent domain laws of the United States or
of any State.
(D) Limitation on requirements.--Notwithstanding subparagraph (A),
nothing in this paragraph shall require the Secretary of Homeland
Security to install fencing, physical barriers, roads, lighting, cameras,
and sensors in a particular location along an international border of
the United States, if the Secretary determines that the use or
placement of such resources is not the most appropriate means to
achieve and maintain operational control over the international border
at such location.
*
*
*
(c) Waiver.—
(1) In general.--Notwithstanding any other provision of law, the Secretary of
Homeland Security shall have the authority to waive all legal requirements
such Secretary, in such Secretary’s sole discretion, determines necessary
to ensure expeditious construction of the barriers and roads under this
Section. Any such decision by the Secretary shall be effective upon being
published in the Federal Register.
(2) Federal court review.—
(A) In general.--The district courts of the United States shall have
exclusive jurisdiction to hear all causes or claims arising from any

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action undertaken, or any decision made, by the Secretary of
Homeland Security pursuant to paragraph (1). A cause of action or
claim may only be brought alleging a violation of the Constitution of
the United States. The court shall not have jurisdiction to hear any
claim not specified in this subparagraph.
(B) Time for filing of complaint.--Any cause or claim brought pursuant
to subparagraph (A) shall be filed not later than 60 days after the date
of the action or decision made by the Secretary of Homeland
Security. A claim shall be barred unless it is filed within the time
specified.
(C) Ability to seek appellate review.--An interlocutory or final
judgment, decree, or order of the district court may be reviewed only
upon petition for a writ of certiorari to the Supreme Court of the
United States.
FACTUAL BACKGROUND
A.

Past Construction of Border Barriers and Use of the Waiver Authority Under
IIRIRA
43.

From 2005 to 2008, DHS waived numerous laws that otherwise would have

applied to approximately a total of 624.5 miles of border barrier and related road construction.
As of February 2017, DHS has constructed 654 miles of “primary” border barriers and
approximately 5,000 miles of roads along the U.S.-Mexico border.
44.

Consequently, DHS has fulfilled its statutory responsibilities to construct the

specific “fencing and road improvements along the border” as currently defined by IIRIRA
Section 102(b).
45.

In particular, DHS has met its specific mandate to identify and construct 370

miles of border fencing in “priority areas . . . where fencing would be most practical and
effective.” IIRIRA § 102(b)(1)(B).
46.

Separately, DHS has also met its specific mandate to “construct reinforced

fencing along not less than 700 miles of the southwest border where fencing would be most
practical and effective.” IIRIRA § 102(b)(1)(A). In addition to the 654 miles of primary fencing

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constructed by DHS, the agency has constructed an additional 37 miles of double-layered
fencing and 14 miles of triple-layered fencing, totaling 705 miles of reinforced border fencing,
exceeding the 700-mile minimum under IIRIRA Section 102(b)(1)(A).
47.

As summarized recently by the GAO:
From fiscal years 2005 through 2015, CBP increased the total miles of
primary border fencing on the southwest border from 119 miles to 654
miles—including 354 miles of primary pedestrian fencing and 300 miles
of primary vehicle fencing. With 654 miles of primary fencing currently
deployed, CBP officials have stated that CBP is in compliance with its
legal requirements for the construction of the southwest border fencing on
the substantial discretion provided to the Secretary of Homeland Security
to determine the appropriate placement of fencing.

GAO Report, at p. 8. (Emphasis added)
48.

Further, there have been no amendments to IIRIRA Section 102 since the 2008

Amendment was signed into law authorizing any legal waivers for additional construction
projects outside those projects specifically authorized and contemplated when it was enacted.
B.

The May 15, 2019 IIRIRA Section 102(c) Waiver Determinations
49.

On January 25, 2017, President Donald J. Trump issued Executive Order No.

13767, entitled “Border Security and Immigration Enforcement Improvement” (“Executive
Order”), which directed DHS to construct a “secure, contiguous, and impassable physical
barrier” along the entirety of the nearly 2,000 mile-long U.S.-Mexico border. Prior to the
Executive Order, all previous waivers invoked under Section 102(c) of IIRIRA were for projects
required under Section 102(b). Subsequent to the Executive Order, DHS Secretaries under
President Trump have now issued thirteen waivers—all for projects outside the scope of Section
102(b).

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50.

On May 15, 2019, Acting Secretary McAleenan issued three Determinations in

the Federal Register purporting to invoke IIRIRA Section 102(c) in order to waive the
application of NEPA, the ESA and numerous additional laws otherwise applicable to “the
construction of roads and physical barriers,” as they would otherwise apply to border wall
construction.
C.

The California and Arizona Border Wall Projects
51.

Acting Secretary McAleenan’s three Waivers purport to waive the application of

NEPA, the ESA and numerous other laws to the proposed construction of approximately 78
miles of border wall construction, which will involve the replacement of existing fencing, the
majority being vehicle barriers, generally compatible with wildlife movement, with bollard-style
walls, which are an almost complete obstructive barrier to wildlife movement, in California and
Arizona. See 84 Fed. Reg. 21,798 (“Tucson Waiver”); 84 Fed. Reg. 21,800 (“El Centro
Waiver”); 84 Fed. Reg. 21,801 (“Tecate Waiver”).
52.

Nearly all of the border wall construction under the three Waivers would be

conducted on protected federal lands, including the Yuha Basin Area of Critical Environmental
Concern, Cabeza Prieta National Wildlife Refuge, Organ Pipe Cactus National Monument,
Coronado National Forest, San Pedro Riparian National Conservation Area, and San Bernardino
National Wildlife Refuge.
53.

These federal lands protect a wide variety of desert, mountain, and riparian

habitats, which harbor an extraordinary diversity of wildlife, including crucial cross-border
“corridors” for endangered jaguars.
54.

The construction of bollard-style walls, associated roads, and ligthing, will cause

the permanent destruction of federally protected lands, prevent cross-border movement of

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jaguars and other endangered species, and have numerous other impacts. By failing to conduct
any NEPA or ESA review, DHS has not and will not properly consider these myriad negative
environmental impacts of the proposed border wall construction in California and Arizona,
including considering whether there are reasonable alternatives that might mitigate such impacts.
CLAIMS FOR RELIEF
FIRST CLAIM FOR RELIEF
Ultra Vires Violations under IIRIRA Section 102(c)
55.

Plaintiffs incorporate by reference the allegations in all preceding paragraphs.

56.

Acting Secretary McAleenan’s three Waivers cite Section 102 of IIRIRA as

authority for approximately 78 miles of border wall construction in California and Arizona.
57.

IIRIRA Section 102(c) provides the DHS Secretary with “the authority to waive

all legal requirements such Secretary, in such Secretary’s sole discretion, determines necessary to
ensure expeditious construction of the barriers and roads under this Section.” 8 U.S.C. § 1103
note.
58.

The scope of the IIRIRA Section 102(c) authority, granted to the DHS Secretary,

to waive laws “under this Section” is limited to the specific border barriers and roads required to
be constructed pursuant to IIRIRA Section 102(b). While IIRIRA Section 102(a) provides
general policy direction to the DHS Secretary to construct border barriers and roads in “areas of
high illegal entry” into the United States, IIRIRA Section 102(b) identifies the specific
“construction of fencing and road improvements along the border” necessary to “carry[] out
subsection (a).”
59.

At the time of the original 1996 enactment of IIRIRA, as well as its 2005

amendment by Section 102 of the REAL ID Act, the specific border barrier construction required

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under IIRIRA Section 102(b) was limited solely to the San Diego 14-mile double and triple layer
border fence.
60.

Congress subsequently amended IIRIRA Section 102(b) under the 2006 Secure

Fence Act and 2008 Consolidated Appropriations Act. The 2006 Secure Fence Act amended
IIRIRA Section 102(b) to require DHS to construct five specific segments of double-layered
border fencing totaling approximately 850 miles. One year later, with the enactment of the 2008
Consolidated Appropriations Act, Congress again amended IIRIRA Section 102(b) to its current
version, which requires that DHS identify and construct 370 miles of border barriers by
December 31, 2008, and that the agency construct border barriers “along not less than 700 miles
of the southwest border where fencing would be most practical and effective.”
61.

DHS has met its duty to identify and construct 370 miles of border barriers within

“priority areas” by December 31, 2008 as required by IIRIRA Section 102(b)(1)(B), as well as
its duty to construct a total of not less than 700 miles of border barriers as required by IIRIRA
Section 102(b)(1)(A).
62.

Because the scope of the IIRIRA Section 102(c) waiver provision is limited to the

border barriers and road requirements specified by IIRIRA Section 102(b), the requirements of
which have already been fulfilled, the purported waiver of NEPA, the ESA, and numerous
additional laws under the three Waivers is an unlawful ultra vires act.
SECOND CLAIM FOR RELIEF
In the Alternative, Violation of IIRIRA Section 102(b)(1)(C)
as a Requirement to Using Waiver Authority under IIRIRA Section 102(c)
63.

Plaintiffs incorporate by reference the allegations in all preceding paragraphs.

64.

In the alternative, to the degree the Court finds that the three Waivers apply to

“barriers and roads” under IIRIRA Section 102, and are thus subject to waiver of legal

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requirements under IIRIRA Section 102(c), Plaintiffs challenge those three Waivers as invalid
because the Acting Secretary failed to conduct necessary prerequisites for exercising the waiver
authority for expedited construction as set forth in provision IIRIRA Section 102(b)(1)(C).
65.

IIRIRA Section 102(b)(1)(C) requires the DHS Secretary, prior to taking actions

to carry out IIRIRA, to:
consult with the Secretary of the Interior, the Secretary of Agriculture, States, local
governments, Indian tribes, and property owners in the United States to minimize the
impact on the environment, culture, commerce, and quality of life for the communities
and residents located near the sites at which such fencing is to be constructed.
66.

IIRIRA Section 102 itself is not included among the statutes waived by the Acting

Secretary in the three Waivers. Rather, Section 102(c)(1) authorizes the DHS Secretary to waive
all legal requirements “[n]otwithstanding any other provision of law” (emphasis added). IIRIRA
Sections 102(b) is not an “other provision[s] of law” but rather part of the same law as the
Section 102(c) waiver authority.
67.

The restriction on judicial review in IIRIRA Section 102(c)(2)(A) also only

applies to “any action undertaken, or any decision made, by the Secretary of Homeland Security
pursuant to paragraph [102(c)](1).”
68.

The requirements of IIRIRA Section 102(b), in fact, are prerequisites to the DHS

Secretary using the waiver authority of Section 102(c). The requirement that the DHS Secretary
must undergo consultation with key stakeholders regarding the effects of the waiver demonstrate
that such a requirement must be satisfied prior to the waiver issuance—and not after.
69.

The three Waivers are invalid because the Acting Secretary has failed to fulfill the

consultation requirement under IIRIRA Section 102(b)(1)(C). On information and belief, the
DHS Secretary has not consulted with any or all of the entities required by Section 102(b)(1)(C)
prior to issuing the three Waivers.

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70.

The Acting Secretary’s May 15, 2019 three Waiver Determinations facially

violate the requirements under IIRIRA Section 102 and are thus ultra vires because the three
Waivers were issued in excess of the Acting Secretary’s delegated powers by approving the
waiver prior to completing at least the prerequisite consultation mandated in Section
102(b)(1)(C). In addition or in the alternative, DHS’s failure to comply with the requirements of
Section 102(b)(1)(C) is arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law, or without observance of procedure required by law, in violation of the
Administrative Procedure Act, and is actionable thereunder. 5 U.S.C. §§ 701-706.
THIRD CLAIM FOR RELIEF
Constitutional Violation
Violation of the Take Care Clause of the U.S. Constitution
Article II, Section 3
71.

Plaintiffs incorporate by reference the allegations in all preceding paragraphs.

72.

Under IIRIRA Section 102(c), and subject to the ultra vires restrictions described

in the First Claim for Relief, once the DHS Secretary invokes the waiver authority, the “only
cause or claim” that may be brought arising from the waiver is one “alleging a violation of the
Constitution of the United States.” IIRIRA Section 102(c) further provides that “[t]he district
courts of the United States shall have exclusive jurisdiction to hear all causes or claims arising
from any” such action, which “shall be filed not later than 60 days after the date of action or
decision” at issue.” IIRIRA § 102(c)(2)(A)-(C).
73.

Article II of the U.S. Constitution provides that “The executive Power shall be

vested in a President,” and that he or she “shall take Care that the Laws be faithfully executed.”
U.S. Constitution Article II, § 3.
74.

Among the laws that the Take Care Clause mandates be “faithfully executed” are

the conditions and limitations of IIRIRA Section 102 itself. Among the conditions and
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limitations of IIRIRA Section 102 are the geographical and temporal restrictions for barrier
construction, along with the requirements for consultation with affected entities under Section
102(b), and the restriction on waiver authority under Section 102(c) to the “expeditious
construction of the barriers and roads” otherwise authorized by the statute under Section 102(b).
75.

DHS Acting Secretary McAleenan’s purported waiver of NEPA, the ESA and

numerous additional laws under the three Waivers failed to comply with the requirements and
limitations of IIRIRA Section 102, a law that the Executive Branch is required to “faithfully
execute.” Accordingly, the three Waiver Determinations violate the U.S. Constitution. U.S.
Constitution Article II, § 3.
FOURTH CLAIM FOR RELIEF
Constitutional Violation
Violation of the Non-Delegation and Separation of Powers Doctrine
Article I, Section 1
76.

Plaintiffs incorporate by reference the allegations in all preceding paragraphs.

77.

“The nondelegation doctrine is rooted in the principle of separation of powers that

underlies our tripartite system of Government.” Mistretta v. United States, 488 U.S. 361, 371
(1989).
78.

Article I, Section 1 of the U.S. Constitution directs that “[a]ll legislative Powers

herein granted shall be vested in a Congress of the United States.”
79.

Article II, Section 1 of the U.S. Constitution directs that “[t]he executive Power

shall be vested in a President of the United States of America.”
80.

Under these constitutional provisions, Congress may not delegate legislative

authority to an executive branch agency, or in the case of IIRIRA Section 102(c), may not
delegate legislative authority to an individual executive branch official. Loving v. U.S., 517 U.S.,
748, 758 (1996).

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81.

As part of the fundamental doctrine of the Separation of Powers, the Supreme

Court “has invalidated attempts by Congress to exercise the responsibilities of other Branches or
to reassign powers vested by the Constitution in either the Judicial Branch or the Executive
Branch.” Mistretta, 488 U.S. at 380.
82.

IIRIRA Section 102(c) unconstitutionally delegates to the Executive Branch,

namely the DHS Secretary, the legislative power to waive the application of any
Congressionally-enacted law to construction on the U.S.-Mexico border.
83.

The only guidance Congress provided to the Executive Branch was that the

waiver should be exercised to the extent the DHS Secretary “determines necessary to ensure
expeditious construction of the barriers and roads under this Section.” Thus, Section 102(c)
permits the DHS Secretary to make legislative decisions without an intelligible general policy to
guide her decision-making.
84.

Therefore, IIRIRA violates Article I, Section 1 of the U.S. Constitution and the

Non-delegation Doctrine and Separation of Powers Doctrine, thereby rendering DHS’s reliance
on IIRIRA to support its three Waiver Determinations unconstitutional.
FIFTH CLAIM FOR RELIEF
Constitutional Violation
Violation of the Presentment Clause
Article I, Section 7
85.

Plaintiffs incorporate by reference the allegations in all preceding paragraphs.

86.

Article I, § 7 of the Constitution provides that any federal statute must pass both

houses of Congress, and “before it become a Law, be presented to the President of the United
States: If he[/she] approve he shall sign it, but if not he shall return it, with his Objections to that
House it which it shall have originated, who shall enter the Objections at large on their Journal,
and proceed to reconsider it.”

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87.

The “[a]mendment and repeal of statutes, no less than enactment,” must conform

with the presentment and bicameralism requirements of Article I. INS v. Chadha, 462 U.S. 919,
954 (1983). Specifically, the Supreme Court has stated that the Executive Branch cannot void
any law without Congress passing a law voiding the previous law and presenting it to the
President for signature. Clinton v. City of New York, 524 U.S. 417 (1998).
88.

IIRIRA Section 102(c), as written, is facially invalid because it vests unilateral

power in the DHS Secretary to waive the application of any laws in areas along the border for
purposes of building border walls without Congress passing a law to void the specific laws at
issue or limit their application, and presenting it to the President, as required by Article I, Section
7 of the U.S. Constitution.
89.

Separately, the statute is also invalid as applied to this case. The three Waivers

purported to waive NEPA, the ESA and numerous other laws that would otherwise apply to
approximately 78 miles of border wall construction in California and Arizona. In so doing, the
Acting Secretary chose which laws to waive and which laws to obey, without an act of Congress
specifying which particular law or set of laws could be waived and without the presentation of
said Congressional act to the President.
90.

The IIRIRA Section 102(c) waiver authority generally, and the Acting DHS

Secretary’s three Waiver Determinations specifically, are unconstitutional infringements upon
the lawmaking procedures required under Article I, § 7 of the Constitution.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs Center for Biological Diversity, Defenders of Wildlife, and
Animal Legal Defense Fund pray that this Court:

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1.

Declare that the Acting DHS Secretary’s three May 15, 2019 Waiver

Determinations are ultra vires;
2.

Declare that the Acting DHS Secretary lacked the authority under IIRIRA Section

102(c) to waive NEPA, the ESA, and other laws in the three Waiver Determinations;
3.

Declare that the three Waiver Determinations specifically, and the IIRIRA

Section 102(c) waiver authority generally, violate the U.S. Constitution’s Take Care Clause;
4.

Declare that the three Waiver Determinations specifically, and the IIRIRA

Section 102(c) waiver authority generally, violate the U.S. Constitution’s fundamental
Separation of Powers and Non-Delegation Doctrine principles;
5.

Declare that the three Waiver Determinations specifically, and the IIRIRA

Section 102(c) waiver authority generally, violate the U.S. Constitution’s Presentment Clause;
6.

Set aside and vacate the three Waiver Determinations;

7.

Enjoin DHS from implementing approximately 78 miles of border wall

construction in California and Arizona authorized under the three Waiver Determinations unless
and until it complies with all laws that would apply absent the unlawful waivers;
8.

Retain jurisdiction to ensure compliance with the Court’s Orders;

9.

Award Plaintiffs their reasonable costs of litigation, including reasonable

attorneys’ fees, expert fees, and costs; and
10.

Grant such other and further relief as the Court may deem just and proper.

DATED: July 14, 2019

Respectfully submitted,
/s/ Anchun Jean Su
ANCHUN JEAN SU (DC Bar No. CA285167)
HOWARD M. CRYSTAL (DC Bar No. 446189)
CENTER FOR BIOLOGICAL DIVERSITY
1411 K Street N.W., Suite 1300
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Washington, D.C. 20005
Telephone: (202) 849-8399
Email: jsu@biologicaldiversity.org
hcrystal@biologicaldiversity.org
/s/ Brian Segee
BRIAN SEGEE (CA Bar 200795)*
CENTER FOR BIOLOGICAL DIVERSITY
660 S. Figueroa St., Suite 1000
Los Angeles, CA 90017
Telephone: (805) 750-8852
Email: bsegee@biologicaldiversity.org
Attorneys for Plaintiff Center for Biological
Diversity
JASON RYLANDER (DC Bar No. 474995)
DEFENDERS OF WILDLIFE
1130 Seventeenth Street, NW
Washington, D.C. 20036
Telephone: (202) 682-9400
Email: jrylander@defenders.org
Attorney for Plaintiff Defenders of Wildlife
ANTHONY T. ELISEUSON (IL Bar No.
6277427)*
ANIMAL LEGAL DEFENSE FUND
150 South Wacker Drive, Suite 2400
Chicago, IL 60606
Telephone: (707) 795-2533
Email: aeliseuson@aldf.org
Attorney for Plaintiff Animal Legal Defense Fund
*(application for pro hac vice admission pursuant to
L.R. 83.2 pending)

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