Amicus Curiae Brief — Center for Biological Diversity, et al., Petitioners v. Chad Wolf, Acting Secretary of Homeland Security, et al.

No. 19-975

================================================================================================================

In The

Supreme Court of the United States

---------------------------------♦--------------------------------CENTER FOR BIOLOGICAL DIVERSITY, ANIMAL

LEGAL DEFENSE FUND, DEFENDERS OF WILDLIFE,

AND SOUTHWEST ENVIRONMENTAL CENTER,

Petitioners,

v.

U.S. DEPARTMENT OF HOMELAND SECURITY

AND CHAD WOLF, ACTING SECRETARY OF THE

U.S. DEPARTMENT OF HOMELAND SECURITY,

Respondents.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The United States District Court

For The District Of Columbia

---------------------------------♦--------------------------------BRIEF OF AMICI CURIAE

LOCAL GOVERNMENTS

IN SUPPORT OF PETITIONERS

---------------------------------♦--------------------------------DEBORAH A. SIVAS

Counsel of Record

ALICIA E. THESING

MATTHEW J. SANDERS

MOLLY L. MELIUS

ENVIRONMENTAL LAW CLINIC

MILLS LEGAL CLINIC AT

STANFORD LAW SCHOOL

559 Nathan Abbott Way

Stanford, CA 94305

(650) 723-0325

dsivas@stanford.edu

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE .........................

1

SUMMARY OF ARGUMENT ..............................

2

ARGUMENT ........................................................

4

I.

IIRIRA’s Broad Delegation of Congressional Lawmaking Authority to Executive

Branch Officials Undermines the Basic

Federalism Principles Embedded in Our

Constitution ...............................................

4

A. Constitutional Separation of Powers

Provides a Check on Federal Overreach and Helps Protect State and Local Interests .........................................

6

B. IIRIRA Allows an Administrative Official to Exercise Congress’ Supremacy

Clause Authority Without Any Direction or Limit ........................................ 10

II.

IIRIRA’s Vague “Consultation” Provision

Does Not Remedy or Mitigate Its Harm to

Affected Communities and Local Autonomy ............................................................ 21

CONCLUSION..................................................... 27

ii

TABLE OF AUTHORITIES

Page

CASES

Alden v. Maine, 527 U.S. 706 (1999) ..................... 3, 6, 7

Atascadero State Hosp. v. Scanlon, 473 U.S. 234

(1985) .........................................................................8

Bond v. United States, 564 U.S. 211 (2011) ..................7

Colo. River Water Conservation Dist. v. United

States, 424 U.S. 800 (1976)......................................13

Ctr. for Biological Diversity v. McAleenan, 404

F. Supp. 3d 218 (D.D.C. 2019) .................................25

Garcia v. San Antonio Metro. Transit Auth., 469

U.S. 528 (1985) ...................................................... 5, 9

Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861

(2000) .........................................................................9

Gregory v. Ashcroft, 501 U.S. 452 (1991) .................. 7, 8

Indus. Union Dep’t v. Am. Petrol. Inst., 448 U.S.

607 (1980) ................................................................11

New York v. United States, 505 U.S. 144 (1992) ...........9

Nixon v. Mo. Mun. League, 541 U.S. 125 (2004) ...........8

Printz v. United States, 521 U.S. 898 (1997) ................5

Sporhase v. Nebraska ex rel. Douglas, 458 U.S.

941 (1982) ................................................................13

United States v. State of New Mexico, 438 U.S.

696 (1978) ................................................................13

iii

TABLE OF AUTHORITIES – Continued

Page

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. X ....................................................6

STATUTES

54 U.S.C. § 304108(b) ..................................................22

54 U.S.C. § 306108 ......................................................22

Administrative Procedure Act....................................24

Consolidated Appropriations Act, 2008, Pub. L.

No. 110-161, § 564, 121 Stat. 2091, § 102(b)(1)

(Dec. 26, 2007) .........................................................21

Endangered Species Act

16 U.S.C. § 1531 et seq.............................................15

16 U.S.C. § 1532(19) ................................................16

16 U.S.C. § 1538(a) ..................................................15

16 U.S.C. § 1539(a)(1)(B) .........................................16

16 U.S.C. § 1539(a)(2) ..............................................16

Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as amended, 8 U.S.C.

§ 1103 note ...................................................... passim

Pima County, Ariz. Code tit. 16 (2019) .......................26

§ 16.20.010...............................................................26

§ 16.04.020(B)(1) .....................................................26

§ 16.20.040...............................................................26

iv

TABLE OF AUTHORITIES – Continued

Page

RULES AND REGULATIONS

36 C.F.R. §§ 800.1 – 800.2 (2019) ...............................22

36 C.F.R. § 800.2(c)(3) .................................................22

36 C.F.R. §§ 800.3 – 800.13 .........................................23

Sup. Ct. R. 37.2 .............................................................1

Sup. Ct. R. 37.6 .............................................................1

OTHER AUTHORITIES

83 Fed. Reg. 3012, 3013

(Jan. 22, 2018) ............................................... 2, 11, 24

84 Fed. Reg. 21,798, 21,799

(May 15, 2019) ................................... 2, 11, 19, 20, 24

Brady McCombs, Rain Washes Away 40 Feet of

US-Mexico Border Fence, Arizona Daily Star

(Aug. 10, 2011), available at https://tucson.

com/news/local/border/rain-washes-away-feetof-us-mexico-border-fence/article_9eaead3114eb-5474-a5c5-564a980049b2.html ......................26

H.R. Rep. No. 109-72 (2005) .......................................10

Michael Colaianni, Arizona, Pima County Report

Record Year for Tourism, KOLD (July 24,

2019), available at https://www.kold.com/2019/

07/25/arizona-pima-county-report-record-yeartourism/ ...................................................................14

v

TABLE OF AUTHORITIES – Continued

Page

National Park Service, Effects of the International Boundary Pedestrian Fence Within the

Vicinity of Lukeville, Arizona, on Drainage

Systems and Infrastructure, Organ Pipe Cactus

National Monument, Arizona (2008), available

at https://www.nps.gov/orpi/learn/nature/upload/

FloodReport_July2008_final.pdf....................... 25, 26

Officials Sign Multi-Species Conservation Plan,

Pima County (Oct. 14, 2016), available at

https://webcms.pima.gov/cms/One.aspx?portal

Id=169&pageId=307646 .........................................17

Pima County Attractions and Tourism, Visit

Tucson, available at https://www.visittucson.

org/business/pima-county-attractions-tourism

(last visited Mar. 2, 2020) .......................................15

Pima County, Multi-Species Conservation Plan

for Pima County, Arizona: Final (2016), available at https://webcms.pima.gov/UserFiles/

Servers/Server_6/File/Government/Office%20

of%20Sustainability%20and%20Conservation/

Conservation%20Sciece/Multi-species%20

Conservation%20Plan/MSCP_Final_MainDoc_

w_Cover.pdf .............................................................18

Pima County, Pima County MSCP: Frequently

Asked Questions (2016), available at https://

webcms.pima.gov/UserFiles/Servers/Server_6/

File/Government/Office%20of%20Sustainability

%20and%20Conservation/Conservation%20

Sciece/Multi-species%20Conservation%20Plan/

MSCP_FAQs_Update_January_2016_Final.pdf .......17

vi

TABLE OF AUTHORITIES – Continued

Page

Public Water Systems Program, Pima County, available at https://webcms.pima.gov/environment/

water/public_water_systems_program/ (last

visited Mar. 2, 2020) ................................................13

Suzanne Michaels, Las Cruces: Our Water Future

Is Safe, KRWG (Dec. 9, 2018), available at

https://www.krwg.org/post/las-cruces-our-waterfuture-safe ...............................................................14

The Federalist No. 39 (James Madison) (Clinton

Rossiter ed., 1961) ................................................. 3, 6

The Federalist No. 51 (James Madison) (Clinton

Rossiter ed., 1961) .....................................................9

1

INTEREST OF AMICI CURIAE1

Amici are three local governments near the

United States-Mexico border. Pima County is Arizona’s

second most populous county with over 980,000 residents. It contains parts of the Tohono O’odham Nation,

as well as all of the San Xavier Indian Reservation,

the Pascua Yaqui Indian Reservation, Organ Pipe

Cactus National Monument, Ironwood Forest National

Monument and Saguaro National Park. For over 120

miles, Pima County’s southern boundary is the United

States-Mexico border. The City of Tucson sits at the

heart of Pima County. It is the largest city located

within 100 miles of the Arizona-Mexico Border, with a

population of over 520,000 residents. The City of Las

Cruces is the second largest city in New Mexico at over

100,000 residents, and the principal city of Doña Ana

County and southern New Mexico.

In the two cases at issue in this petition, the district court rejected Petitioners’ separation-of-powers

claims, finding that the nondelegation doctrine does

not prevent the wholesale abdication of Congress’

lawmaking authority to the Secretary of Homeland

Security under the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (IIRIRA). Of

1

Pursuant to this Court’s Rule 37.6, counsel for amici curiae

state that this brief was not authored in whole or in part by counsel for any party, and no person or entity other than amici and

their counsel made a monetary contribution to the preparation or

submission of this brief. In accordance with this Court’s Rule 37.2,

all parties were timely notified of the amici’s intent to file this

brief, and all parties consented to the filing.

2

most concern to amici is the Secretary’s unfettered and

unreviewable power to waive – that is, to effectively

preempt – not only any otherwise applicable federal

law, but also all state and local requirements related to

waived federal laws. Such a far-reaching grant of legislative authority to the Executive branch undermines

the federalism protections built into the structure of

the U.S. Constitution. On behalf of themselves and the

communities they represent, amici respectfully submit

that the sweeping constitutional implications of

IIRIRA warrant the Court’s intervention.

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

IIRIRA gives the Secretary of Homeland Security

the “sole discretion” to waive “all legal requirements”

that the Secretary “determines necessary to ensure expeditious construction of ” physical barriers and roads

“in the vicinity of the United States border.” 8 U.S.C.

§ 1103 note. Over the last three years, the Secretary

has exercised this authority numerous times to waive

not only dozens of specific federal laws, but also all

“state, or other laws, regulations, and legal requirements of, deriving from, or related to the subject of ”

those federal laws. See, e.g., 84 Fed. Reg. 21,798, 21,799

(May 15, 2019) (“Arizona Waiver”); 83 Fed. Reg. 3012,

3013 (Jan. 22, 2018) (“New Mexico Waiver”).

Congress’ grant of unbridled Supremacy Clause

power to a single unelected Executive branch official

has grave constitutional implications for the “residuary and inviolable sovereignty” of the states and the

3

local communities within them. Alden v. Maine, 527

U.S. 706, 715 (1999) (citing The Federalist No. 39, at

245 (James Madison) (Clinton Rossiter ed., 1961)). The

federalism principle of “dual sovereignty” sown into

the U.S. Constitution is preserved, to a great extent,

through the document’s structural separation of powers. The fact that only Congress can make or preempt

laws ensures that states and the local communities

they represent have a voice in their own governance.

When an unelected administrative official wields the

extraordinary preemption power of the Supremacy

Clause instead of Congress, the voices of local communities can be silenced. Unsurprisingly, the Department

of Homeland Security (Department) has used IIRIRA’s

sweeping delegation of preemption power in precisely

this way, trampling with impunity on the interests of

communities like Pima County, Tucson, and Las Cruces.

The damage inflicted by IIRIRA is more than theoretical. Amici have expended years of effort and millions of local taxpayer dollars to carefully manage their

water, wildlife, and other natural resources in a way

that balances development with ecological sustainability in the fragile arid Southwest. With the stroke of a

pen, the Secretary can upend those efforts and wreak

havoc on the local landscape. Indeed, such havoc has

already occurred. The Department’s failure to hear and

incorporate the concerns of local experts with firsthand knowledge of local weather patterns and topography already has caused millions of dollars of flood

damage along certain stretches of the border wall in

4

Arizona. The far-reaching new Arizona and New Mexico Waivers promise more of the same.

Even Congress recognized IIRIRA’s potential to

undercut constitutional federalism in the most directly

affected communities when it amended the statute in

2007 to add a “consultation” requirement. Sadly, this

amendment does nothing to remedy IIRIRA’s serious

federalism implications because the consultation command, like the statute’s waiver provision, contains no

guiding standards. As a result, the Secretary simply ignored this consultation requirement when issuing the

Arizona and New Mexico Waivers; the Department did

not consult with any of amici before waiving a wide

swath of federal, state, and local requirements designed to protect natural and economic resources in

these communities. And the court below held that

IIRIRA shields such blatantly ultra vires conduct from

any judicial challenge. In the end, IIRIRA allows an

administrative agency to brandish the power of the Supremacy Clause without any accountability to Congress, the courts, or the people most directly affected.

---------------------------------♦---------------------------------

ARGUMENT

I.

IIRIRA’s Broad Delegation of Congressional

Lawmaking Authority to Executive Branch

Officials Undermines the Basic Federalism

Principles Embedded in Our Constitution.

The U.S. Constitution establishes an intricate system of checks and balances. These checks operate

5

horizontally through the separation of power between

three co-equal branches of the national government.

And they operate vertically through an architecture of

“dual sovereignty,” which reserves to the states all

power not specifically delegated to the federal government. Printz v. United States, 521 U.S. 898, 918-19

(1997). As the Court has recognized, however, these

core structural components do not work in isolation.

Rather, “the principal means chosen by the Framers to

ensure the role of the States in the federal system lies

in the structure of the Federal Government itself.” Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528,

550 (1985). In particular, the Constitution ensures that

the federal branch most reflective of and responsive to

the interests of the states – Congress – is the same

branch charged with making the laws that affect those

interests.

IIRIRA’s capacious grant of authority to the Executive branch undermines both the horizontal and vertical safeguards embedded in the Constitution. As

Petitioners convincingly demonstrate, IIRIRA violates

basic separation-of-powers principles by impermissibly delegating legislative authority to an unelected

Cabinet Secretary. Pet. 21-25. But the statute also

raises serious federalism concerns. By granting an administrative agency official unfettered discretion to

override “all legal requirements,” without any direction from Congress or review by the courts, IIRIRA

turns the Supremacy Clause into a battering ram

against states and local governments. Because IIRIRA

imposes neither horizontal nor vertical limits on the

6

exercise of Executive authority and then effectively immunizes the exercise of that authority from judicial

scrutiny, the Court should be especially concerned

about its implications for the constitutional balance of

power.

A. Constitutional Separation of Powers

Provides a Check on Federal Overreach

and Helps Protect State and Local Interests.

Federalism is woven into our constitutional structure. Article I, section 8 enumerates the limited set of

national powers to be exercised only by Congress. The

Tenth Amendment, enacted shortly thereafter “to allay

lingering concerns about the extent of the national

power,” put to rest “[a]ny doubt regarding the constitutional role of the States.” Alden v. Maine, 527 U.S. 706,

713-14 (1999). This structure reserves to the states “a

substantial portion of the Nation’s primary sovereignty,

together with the dignity and essential attributes inhering in th[eir] status” as independent sovereign entities. Id. at 714 (citing The Federalist No. 39, at 245

(James Madison) (Clinton Rossiter ed., 1961)).

The federal system established by the Constitution gives Congress “vast power but not all power.”

Id. at 758. “When Congress legislates in matters affecting the States, it may not treat these sovereign entities

as mere prefectures or corporations,” but instead

must accord them “the esteem due to them as joint

7

participants in a federal system” and “must respect”

their sovereign status. Id. This “federal balance is, in

part, an end in itself, to ensure that States function as

political entities in their own right.” Bond v. United

States, 564 U.S. 211, 221 (2011).

But federalism is more than a boundary-setting

exercise to preserve the respective integrity of state

and national legislative institutions; it also “allows local policies ‘more sensitive to the diverse needs of a

heterogeneous society,’ permits ‘innovation and experimentation,’ enables greater citizen ‘involvement in

democratic processes,’ and makes government ‘more

responsive by putting the States in competition for a

mobile citizenry.’ ” Id. (quoting Gregory v. Ashcroft, 501

U.S. 452, 458 (1991)). In short, constitutional federalism “preserves to the people numerous advantages,”

Gregory, 501 U.S. at 458, and enables “States to respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny

of their own times without having to rely solely upon

the political processes that control a remote central

power.” Bond, 564 U.S. at 221.

Despite the benefits of federalism, the national

government “holds a decided advantage in this delicate

balance” in the form of the Supremacy Clause, which

confers on Congress the power to “impose its will on

the States” and “legislate in areas traditionally regulated by the States.” Gregory, 501 U.S. at 460. It is the

role of the courts, therefore, to ensure that Congress

does not lightly exercise this “extraordinary power.”

Id. Where a law alters the traditional constitutional

8

balance between the states and the federal government, this Court has demanded an “unmistakably

clear” statement evincing a clear and manifest congressional intent to preempt historic state powers. Id.

at 460-61 (quoting Atascadero State Hosp. v. Scanlon,

473 U.S. 234, 242 (1985)). Put differently, federal legislation that threatens to “trench” on traditional state

authority “should be treated with great skepticism,

and read in a way that preserves a State’s chosen disposition of its own power” in the absence of a clear congressional statement to the contrary. Nixon v. Mo. Mun.

League, 541 U.S. 125, 140 (2004).

Given the ultimate hammer of the Supremacy

Clause, the delicate constitutional balance between

state and national governments is preserved, in significant measure, through the robust separation of

powers at the federal level. In particular, exercise of

Supremacy Clause authority to override traditional

state and local police powers is within the purview of

Congress, the branch most responsive to state and local interests and most directly accountable to the people. As James Madison explained:

In the compound republic of America, the

power surrendered by the people is first divided between two distinct governments, and

then the portion allotted to each subdivided

among distinct and separate departments.

Hence a double security arises to the rights of

the people. The different governments will

control each other, at the same time that each

will be controlled by itself.

9

The Federalist No. 51, at 323 (James Madison) (Clinton

Rossiter ed., 1961).

The Court has embraced Madison’s logic, holding

that “the Framers chose to rely on a federal system in

which special restraints on federal power over the

States inhered principally in the workings of the National Government itself, rather than in discrete limitations on the objects of federal authority.” Garcia, 469

U.S. at 551. But if the interests of sovereign states and

the benefits of federalism “are more properly protected

by procedural safeguards inherent in the structure of

the federal system than by judicially created limitations on federal power,” id., courts must be willing to

closely scrutinize congressional efforts to shed those

safeguards.

The Court should be especially concerned when

Congress purports, as here, to delegate open-ended

preemption authority to administrative agencies, which

“[u]nlike Congress, . . . are clearly not designed to represent the interests of the States, yet with relative ease

. . . can promulgate comprehensive and detailed regulations that have broad pre-emption ramifications for

state law.” Geier v. Am. Honda Motor Co., Inc., 529 U.S.

861, 908 (2000) (Stevens, J., dissenting).

In short, “the Constitution protects us from our

own best intentions: It divides power among sovereigns and among branches of government precisely so

that we may resist the temptation to concentrate

power in one location as an expedient solution for the

crisis of the day.” New York v. United States, 505 U.S.

10

144, 188 (1992). As discussed below, the law at issue

here does precisely what the constitutional structure was designed to prevent. IIRIRA dismantles the

Constitution’s core federalist principles by delegating unchecked lawmaking power to the Secretary of

Homeland Security, who has repeatedly used that

power to preempt all state or local laws that the current administration finds inconvenient or bothersome

in its rush to expedite hugely impactful construction

projects in amici’s backyard.

B. IIRIRA Allows an Administrative Official to Exercise Congress’ Supremacy

Clause Authority Without Any Direction

or Limit.

Through IIRIRA, Congress handed the Secretary

a preemption sledgehammer, not a scalpel by which to

craft policy. The law grants the Secretary “sole discretion” to waive “all legal requirements” that he or she

“determines necessary” for construction of physical

barriers and roads “in the vicinity of the United States

border.” 8 U.S.C. § 1103 note; see also H.R. Rep. No. 10972, at 171 (2005) (noting that “the Secretary’s discretionary waiver authority extends to any local, state, or

federal statute, regulation, or administrative order

that could impede expeditious construction of border

security infrastructure”). In effect, IIRIRA transfers

the Supremacy Clause’s “extraordinary” preemption

power to an unelected Executive branch official, who

may waive all state, local, and tribal requirements of

11

any kind without a shred of congressional guidance or

judicial oversight.

Over the last three years, the Secretary has exercised this authority fifteen times to waive dozens of

federal laws and all “state, or other laws, regulations,

and legal requirements of, deriving from, or related to

the subject of ” those waived federal laws. See, e.g., 84

Fed. Reg. 21,798, 21,799 (May 15, 2019); 83 Fed. Reg.

3012, 3013 (Jan. 22, 2018). These waivers broadly

cover all state and local laws “with respect to the construction of roads and physical barriers (including, but

not limited to, accessing the project area, creating and

using staging areas, the conduct of earthwork, excavation, fill, and site preparation, and installation and upkeep of physical barriers, roads, supporting elements,

drainage, erosion controls, and safety features) in the

project area.” See, e.g., 84 Fed. Reg. at 21,799; 83 Fed.

Reg. at 3013.

But under our constitutional structure, it is not

the Secretary’s job to pick and choose whether, when,

or how to exercise Supremacy Clause authority. That

job belongs to Congress. Indeed, careful crafting of

clear statutory parameters to override traditional

state and local interests is precisely the type of “critical

policy decision” that Congress should “hammer out in

the legislative forge.” See Indus. Union Dep’t v. Am.

Petrol. Inst., 448 U.S. 607, 687 (1980) (Rehnquist, J.,

concurring). By granting the Secretary sole, unfettered

discretion to preempt any state or local law as he sees

fit, Congress has written a blank check to curtail the

12

“dual sovereignty” that undergirds our federalist system.

This blank check allows the Department to trample on traditional state authority and local interests

with impunity, so long as the Secretary determines it

“necessary” to achieve “expeditious” project construction “in the vicinity” of the border. And unsurprisingly,

the Department has stretched IIRIRA’s open-ended

language to arrogate to itself maximum control over

the most basic state and local government functions of

border communities. Under the sweeping language of

the Arizona and New Mexico Waivers at issue here, the

Department has effectively negated all state and local

laws in undefined “project areas” that are “related to

the subject” of clean air, clean water, endangered species, toxic waste, and archeological resources, among

others.

The IIRIRA waivers could mean that amici cannot

enforce basic local ordinances designed, for instance, to

prevent public nuisances, regulate traffic, or curtail

trespass for any activity that the Department declares

to be necessary for the construction or “upkeep” of border infrastructure. For example, the Secretary could

exempt encampments to house construction workers

from fundamental zoning codes and public health and

safety laws, leaving local communities helpless to protect and promote their own welfare.

Equally troubling are IIRIRA’s implications for the

use and long-term preservation of natural resources.

Take, for example, the allocation and regulation of

13

precious water resources. As the Court has recognized,

“no problem of the Southwest section of the Nation is

more critical than that of scarcity of water.” Colo. River

Water Conservation Dist. v. United States, 424 U.S. 800,

804 (1976). “As southwestern populations have grown,

conflicting claims to this scarce resource have increased.” Id.

The Court has also acknowledged that “[t]o meet

these claims, several Southwestern States have established elaborate procedures for allocation of water and

adjudication of conflicting claims to that resource.” Id.

The allocation and regulation of water use is a quintessential state function, aspects of which are delegated to local government entities. See, e.g., Public

Water Systems Program, Pima County (explaining that

Pima County is authorized under Arizona state law to

oversee local water supply systems).2 Indeed, “a State’s

power to regulate the use of water in times and places

of shortage for the purpose of protecting the health of

its citizens . . . is at the core of its police power.”

Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941, 956

(1982). Thus, unless Congress has specifically reserved

federal water rights in connection with the withdrawal

of federal public lands (e.g., national forest land, national park land, etc.), the United States “acquire[s]

water in the same manner as any other public or private appropriator.” United States v. State of New Mexico, 438 U.S. 696, 701 (1978).

2

Available at https://webcms.pima.gov/environment/water/

public_water_systems_program/ (last visited Mar. 2, 2020).

14

IIRIRA’s broad waiver authority threatens longstanding water rights and water use regimes in arid

states like Arizona and New Mexico, where local communities rely on careful management of surface water

flows and groundwater. For example, the City of Las

Cruces is perched on the banks of the Rio Grande River

at the edge of the Chihuahuan Desert. Flows from the

river are the subject of a contentious water rights lawsuit pitting Texas against the states of New Mexico

and Colorado. To avoid becoming embroiled in that dispute, Las Cruces has developed a local long-term strategy for maintaining a sustainable water supply that

avoids the need for any Rio Grande flow allocation in

favor of 72 widely-spaced deep groundwater wells,

careful groundwater monitoring, and active conservation. See Suzanne Michaels, Las Cruces: Our Water Future Is Safe, KRWG (Dec. 9, 2018).3 The Secretary could

upend those meticulous efforts, and the millions of dollars expended by the community to support them, by

overriding water rights and local water allocation requirements and installing new, competing groundwater wells to supply border infrastructure construction

and maintenance needs.

Or consider IIRIRA’s potential impacts on hardearned land use planning by Pima County and its

largest municipality, Tucson. The city and county have

experienced tremendous population growth in the last

few decades, as well as a booming tourist industry.

See Michael Colaianni, Arizona, Pima County Report

3

Available at https://www.krwg.org/post/las-cruces-our-waterfuture-safe.

15

Record Year for Tourism, KOLD (July 24, 2019) (noting

that tourism in Pima County generated $2.5 billion in

2018).4 A significant part of the region’s attraction is

tethered to its unique desert ecosystem:

The county lies at an ecological crossroad

where habitats and species from the neo-tropics meet the Rocky Mountains and the Sonoran Desert. The diversity in flora, fauna, and

geology is spectacular. It contains one of North

America’s longest inhabited areas – the Santa

Cruz River valley. It is rich in pre-Columbian

archeology, history and historic routes such as

the De Anza Trail, as well as the living cultures of Native American tribes.

Pima County Attractions and Tourism, Visit Tucson.5

Because rapid population growth puts these

unique cultural and natural attributes at risk, Pima

County has engaged in protracted and expensive efforts to balance the demand for more development

against the preservation of ecological resources. Much

of that effort was conducted in the shadow of the Endangered Species Act, 16 U.S.C. § 1531 et seq., which

can restrict development where listed species are present. Once a species is listed under the Act, any “take”

of that species by a private party is unlawful unless

authorized by permit. Id. § 1538(a). The term “take” is

broadly defined “to mean harass, harm, pursue, hunt,

4

Available at https://www.kold.com/2019/07/25/arizona-pimacounty-report-record-year-tourism/.

5

Available at https://www.visittucson.org/business/pimacounty-attractions-tourism (last visited Mar. 2, 2020).

16

shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Id. § 1532(19).

Thus, development activities by property owners that

harm listed species could constitute an unlawful take

under the statute. Landowners can protect themselves

from liability for unauthorized take by obtaining an

“incidental take permit.” Id. § 1539(a)(1)(B). To obtain

such a permit, the landowner must submit a habitat

conservation plan that addresses the impact of the

take, as well as mitigation measures to avoid those impacts, and the Secretary of the Interior must find, after

an opportunity for public comment, that the proposed

incidental take will be minimized and mitigated to the

extent practical. Id. § 1539(a)(2).

Because the habitat conservation planning process can be lengthy and costly, local governments often

take a lead role in preparing a regional plan for multiple species. Once approved by the U.S. Fish and Wildlife Service, such a plan serves as a blueprint for all

future development in the region. Regional multispecies habitat conservation plans take an integrated

approach to land management. These plans identify

areas for conservation and, at the same time, allow certainty for future development. There is no need for

individual federal permits; the local government entity holds the federal incidental take permit and approves individual development through its normal

zoning/building code process.

Pima County has followed precisely this approach

in balancing the need for species conservation with the

demand for both local development and recreational

17

opportunities. See Pima County, Pima County MSCP:

Frequently Asked Questions at 1 (2016) (explaining

that, without the plan, “Pima County and its development community would have to continue to rely on an

inefficient species-by-species and project-by-project compliance process”).6 In particular, Pima County’s MultiSpecies Conservation Plan, approved in 2016, is the

culmination of “[n]early two decades of research, planning, and cooperation.” Officials Sign Multi-Species

Conservation Plan, Pima County (Oct. 14, 2016).7

As the County explained at the time of adoption:

The [Multi-Species Conservation Plan] is the

keystone of the broader Sonoran Desert Conservation Plan, which seeks to balance the

conservation and protection of Pima County’s

cultural heritage and natural resources with

the economic needs of a growing population. . . . Under the terms of the agreement,

Pima County receives a federal permit that

streamlines [the Endangered Species Act]

process, thereby providing a simpler, faster

and less-expensive way to move public and

private projects into construction.

Id. Altogether, the County held over 600 public meetings, id., convened an 80-member citizens’ Steering

6

Available at https://webcms.pima.gov/UserFiles/Servers/

Server_6/File/Government/Office%20of%20Sustainability%20and

%20Conservation/Conservation%20Sciece/Multi-species%20

Conservation%20Plan/MSCP_FAQs_Update_January_2016_Final.pdf.

7

Available at https://webcms.pima.gov/cms/One.aspx?portal

Id=169&pageId=307646.

18

Committee and 12 technical and advisory teams, and

incorporated research and review from more than 150

scientists, as well as from locally- and nationallyrecognized conservation biology experts. Pima County,

Multi-Species Conservation Plan for Pima County,

Arizona: Final at 11-12 (2016).8 Eight drafts of the

document were made available to the public and

stakeholders over a period of ten years. Id.

The resulting final Multi-Species Conservation Plan

covers 44 listed and at-risk species over a planning

area of 5.8 million acres. Id. at 6. The accompanying

federal incidental take permit authorizes approximately 36,000 acres of habitat disturbance over the

next 30 years, for which Pima County has committed

to provide 116,000 acres of mitigation. Id. at 46. Since

2004, the County has spent $159 million on acquiring

mitigation land, funded primarily through voter-approved bonds. Id. at 109.

But the Secretary’s Arizona Waiver, which covers

the “Tucson Sector” that includes Pima County,

threatens to undermine and potentially unravel this

two-decade public-private effort, which balanced ecological needs, Endangered Species Act compliance,

and development demands. Without any input from

affected stakeholders or the local community, the

Secretary waived the Endangered Species Act in its

“entirety” and all “other laws, regulations, and legal

8

Available at https://webcms.pima.gov/UserFiles/Servers/

Server_6/File/Government/Office%20of%20Sustainability%20and

%20Conservation/Conservation%20Sciece/Multi-species%20

Conservation%20Plan/MSCP_Final_MainDoc_w_Cover.pdf.

19

requirements of, deriving from, or related to the subject of ” the Endangered Species Act. 84 Fed. Reg. at

21,799. A border wall, associated roads, and other

physical infrastructure will divide and destroy important public land habitat on which the Multi-Species

Conservation Plan relies, causing the kind of landscape fragmentation that the plan was designed to

avoid.

In working cooperatively with federal agencies

during the lengthy conservation planning process, the

County could not have anticipated that the federal government would shirk its obligations under its own

laws. The double standard created by IIRIRA’s blanket

waivers breaks faith and trust with local communities

like Pima County and Tucson, which have committed

substantial taxpayer funds to ensure that the objectives of the federal law are met. The resulting habitat

loss and fragmentation could well lead to the listing

of additional species; and it will unquestionably shift

even more of the compliance burden onto local communities that have had no voice in whether or how these

massive border projects are completed.

To add insult to injury, the spatial and temporal

extent of the Secretary’s waiver is entirely unclear,

sowing uncertainty into a planning process undertaken primarily to ensure certainty. The Secretary’s directive waives Endangered Species Act requirements

“with respect to physical barriers and roads . . . in the

project areas.” 84 Fed. Reg. at 21,799. The waiver does

not define “project areas” or even suggest any limiting

20

principle.9 The Arizona Waiver extends the Secretary’s

preemption of state and local law such that it includes,

but is “not limited to,” the “installation and upkeep” of

physical barriers, roads, and undefined “supporting elements.” Id. This language suggests that the Secretary’s waiver of the Endangered Species Act and

dozens of other federal, state, and local laws and requirements may continue indefinitely for the “upkeep”

of whatever the Department believes are necessary

“supporting elements.” Id.

As these examples illustrate, IIRIRA permits the

Secretary to wield sprawling waiver power. The Secretary has brandished this power frequently in the last

few years to cast a wide preemption net. The result is

that local communities have been deprived of any voice

in significant activities that directly impact their economic sustainability and the local resources they steward. As the Framers might have predicted, Congress’

wholesale abdication of its lawmaking responsibilities

to the Executive branch has dramatically undermined

the federalist principles at the heart of our republic.

9

IIRIRA itself uses the even more nebulous phrase “in the

vicinity of the United States border.” This vast but vague authority

raises substantial questions about the limits of the Secretary’s

lawmaking power. If the Secretary determines it necessary to install infrastructure at the Ports of Los Angeles or Houston to prevent illegal immigration, what prevents the Secretary from

invoking an unreviewable IIRIRA waiver?

21

II.

IIRIRA’s Vague “Consultation” Provision

Does Not Remedy or Mitigate Its Harm to Affected Communities and Local Autonomy.

Perhaps in a belated attempt to rein in IIRIRA’s

unbounded grant of agency discretion, Congress

amended the law in 2007 to require that the Secretary

“shall consult with the Secretary of the Interior, the

Secretary of Agriculture, States, local governments, Indian tribes, and property owners in the United States”

in order 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.” Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, § 564, 121 Stat.

2091, § 102(b)(1) (Dec. 26, 2007). But the addition of

this consultation provision does not remedy IIRIRA’s

federalism implications, for at least three reasons.

First, IIRIRA’s consultation provision suffers

from the same vagueness that infects its waiver provision. The law does not define what Congress meant

when it directed that the Secretary “shall consult” with

affected stakeholders, nor does it provide guidance on

who should be consulted. The Arizona and New Mexico

Waivers directly impact the border communities of

Las Cruces, Tucson, and Pima County, as well as many

private landowners and public property holders in

those communities. Yet the Secretary has never consulted – let alone actually listened to the voices of –

these vitally affected stakeholders.

22

In contrast, when Congress wants to ensure

meaningful stakeholder consultation, it provides adequate statutory direction for carrying out that mandate. For instance, the National Historic Preservation

Act (NHPA) – ironically, one of the laws the Secretary

waived in both Arizona and New Mexico – provides a

robust framework for engaging in consultation with

relevant stakeholders. NHPA Section 106 requires

that the head of any agency overseeing a federal or federally-assisted activity “take into account the effect of

the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register.” 54 U.S.C. § 306108.

To implement this mandate, Congress directed the

Advisory Council on Historic Preservation to draft regulations establishing procedures that “provide for participation by local governments in proceedings and

other actions . . . with respect to undertakings referred

to in section 106 which affect such local governments.”

54 U.S.C. § 304108(b).

These congressionally-mandated regulations set

forth in detail the goals of consultation and the parties

that must be consulted. See 36 C.F.R. §§ 800.1 – 800.2

(2019). They provide, for instance: “A representative

of a local government with jurisdiction over the area

in which the effects of an undertaking may occur is

entitled to participate as a consulting party.” Id.

§ 800.2(c)(3). The regulations go on to provide detailed

requirements for initiating consultation, identifying

archaeological and historic properties, assessing and

resolving adverse effects, coordinating consultation

23

with environmental review, terminating consultation,

documenting the consultation process, and participation by the Advisory Council itself. See id. §§ 800.3 –

800.13.

IIRIRA provides no such guidance and no mandate that the Secretary implement procedures for consultation. Instead, the statute leaves entirely to the

Secretary’s ad hoc discretion how the consultation process will be carried out and with whom – a fact that

the Department itself touts. Defs.’ Opp’n to Pls.’ Mot.

for Summ. J. at 28, Ctr. for Biological Diversity v.

McAleenan, 404 F. Supp. 3d 218 (D.D.C. 2019) (No.

1:18-cv-00655-KBJ), ECF No. 21-1 (arguing that IIRIRA

does not specify “(1) when . . . consultation must occur,

(2) with whom it must necessarily occur, or (3) the degree of interaction required to satisfy the requirement”

(emphasis in original)). And the Secretary has embraced this unconstrained discretion to exclude the

communities that amici represent – some of the communities most directly affected by the Secretary’s

waivers – from any participation in the consultation

process. IIRIRA’s nebulous consultation provision, therefore, does not remedy any of the federalism problems

inherent in the statute’s delegation of blanket preemption authority to an administrative agency.

Second, even if IIRIRA’s consultation provision did

include greater congressional direction to guide the

Secretary’s obligations with respect to local communities, such direction is meaningless in the absence of

judicial review. Although IIRIRA commands that the

Secretary “shall consult” with local governments “to

24

minimize the impact on the environment, culture, commerce, and quality of life,” the statute prohibits any judicial enforcement of those mandates: “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.” 8 U.S.C. § 1103 note. Perhaps

to emphasize that the Department’s waiver and consultation activities are entirely shielded from any judicial challenge, the Secretary’s Arizona and New Mexico

Waivers expressly override the Administrative Procedure Act. 84 Fed. Reg. at 21,799; 83 Fed. Reg. at 3013.

In theory, then, the Secretary could waive any federal, state, and local law along the full southern borders

of Arizona and New Mexico without input from any of

the two states, eight counties, sovereign tribal nations,

or the myriad municipalities and private landowners

affected. The Secretary started down that path by utterly failing to consult any of amici local governments

before issuing the broad Arizona and New Mexico

Waivers, even though the communities that amici represent are on the front lines of border wall construction

impacts. Yet the communities of Pima County, Tucson,

and Las Cruces have no legal recourse to hold the Secretary accountable for failing to include their voices.

The Secretary’s failure to consult with affected local governments and property owners before granting

these waivers plainly constitutes an ultra vires act,

but the lower court in these related cases held that

it lacked jurisdiction to hear any ultra vires claims

regarding the Secretary’s waiver decision. Ctr. for

25

Biological Diversity, 404 F. Supp. 3d at 238 (finding ultra vires review of consultation requirements to be precluded “completely” (emphasis in original)). In effect,

IIRIRA creates a right without a remedy.

Third, even where prior Secretaries have conducted some cursory consultation, that engagement

was not sufficient to protect local communities or property from harm. For example, in the spring of 2008,

the Department of Homeland Security completed construction of a 5.2-mile stretch of pedestrian border

fencing in Organ Pipe Cactus National Monument,

near the western edge of Pima County. Shortly thereafter a 90-minute flash flooding event – not atypical

for the Arizona/Mexican summer “monsoon season” –

caused debris to pile up against the new fence, effectively creating a dam that blocked the normal northto-south water flow and resulted in two to seven feet

of lateral water flow along the fence. National Park

Service, Effects of the International Boundary Pedestrian Fence Within the Vicinity of Lukeville, Arizona, on

Drainage Systems and Infrastructure, Organ Pipe Cactus National Monument, Arizona 9-10 (2008) (concluding that the “fence impeded the natural flow of water

and did not properly convey floodwaters”).10

The flooding damaged private and government

property on both sides of the border. Id. at 12. Officials

with first-hand knowledge of the local climate, topography, and environmental conditions had warned the

10

Available at https://www.nps.gov/orpi/learn/nature/upload/

FloodReport_July2008_final.pdf.

26

Department during consultation about precisely the

scenario that came to pass, but the Secretary effectively ignored those concerns. Id. at 7-8. The hasty and

ill-informed construction failed to meet applicable performance standards. Id. at 9-16. A similar flooding

event occurred again three years later near the town

of Lukeville, flooding several buildings. See Brady

McCombs, Rain Washes Away 40 Feet of US-Mexico

Border Fence, Arizona Daily Star (Aug. 10, 2011).11

The border structures approved under the Secretary’s most recent waivers may well suffer the same

fate. Local governments like Pima County have enacted extensive floodplain regulations based on local

expertise in preventing and minimizing damage from

flooding events. See Pima County, Ariz. Code tit. 16

(2019). The regulations recognize that periodic flooding, when not properly managed, can “result in loss

of life and property, create health and safety hazards,

disrupt commerce and governmental services, [and] require extraordinary public expenditures for flood protection and relief.” Id. § 16.04.020(B)(1).

For this reason, construction in any floodplain,

riparian habitat, or erosion hazard area normally

requires a County permit. Id. § 16.20.010. Such permits typically impose conditions related to materials,

floodproofing measures, and safety restrictions. Id.

§ 16.20.040. Yet the Secretary has effectively waived

11

Available at https://tucson.com/news/local/border/rain-washesaway-feet-of-us-mexico-border-fence/article_9eaead31-14eb-5474a5c5-564a980049b2.html.

27

all environmental review and permitting requirements for border infrastructure in Pima County – and

has not even bothered to consult with the local flood

control experts at the County.

---------------------------------♦---------------------------------

CONCLUSION

Perhaps more than any other law in U.S. history,

IIRIRA raises both separation-of-powers problems and

federalism concerns. By delegating Congress’ legislative power of preemption under the Supremacy Clause

to an unelected agency official who may override state

and local requirements however he chooses, IIRIRA

upends the system of horizontal and vertical checks

and balances – Madison’s “double security” – that was

so deliberately knitted into the fabric of the Constitution. Amici urge the Court to grant certiorari.

Respectfully submitted,

DEBORAH A. SIVAS

Counsel of Record

ALICIA E. THESING

MATTHEW J. SANDERS

MOLLY L. MELIUS

ENVIRONMENTAL LAW CLINIC

MILLS LEGAL CLINIC AT

STANFORD LAW SCHOOL

559 Nathan Abbott Way

Stanford, CA 94305

(650) 723-0325

dsivas@stanford.edu

March 5, 2020