Amicus Curiae Brief — Defenders of Wildlife v. Chertoff (No. 07-1180)

”™\ FILED

@ APR 17 2008

No. 07-1180

OFFICE

SUPREME COUT

IN THE |

Supreme Court of the United States

DEFENDERS OF WILDLIFE AND SIERRA CLUB,

Petitioners,

Vv.

MICHAEL CHERTOFF,

SECRETARY OF HOMELAND SECURITY,

Respondent.

* On Petition for a Writ of Certiorari to

The United States District Court for

The District of Columbia

BRIEF OF THE NATIONAL ADVOCACY CENTER OF THE

SISTERS OF THE GOOD SHEPHERD, CENTER FOR

BIOLOGICAL DIVERSITY, ENDANGERED SPECIES

COALITION, GREENPEACE, INC., NATIONAL AUDUBON

SOCIETY, INC., NATIONAL TRUST FOR HISTORIC

PRESERVATION, NATURAL RESOURCES DEFENSE

COUNCIL, NATIONAL WILDLIFE FEDERATION, SOCIETY

FOR AMERICAN ARCHAEOLOGY, THE TOHONO O’ODHAM

NATION, THE WILDERNESS SOCIETY, WORLD WILDLIFE

FUND, AND UNITED CHURCH OF CHRIST

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

Dinah Bear

4019 18th Street, N.W.

Washington, D.C. 20011-5324

(202) 906-9407

Counsel of Record for Amici

April 17, 2008

SSDI PETAL AARNE ATO eh OND SRAM 2 NO LE RE ORSTSAOCRPINIe PME RE

i

TABLE OF CONTENTS

Page

SOUT ee OF IO No visas icécansscnssssoexsinceaisncnn 1

SUMMARY OF ARGUMENT................cccseceeseceseees 2

ST Bid Scitinitnneadocemneema 3

I. This Case Demonstrates Why the

Constitutionally Mandated Separation of Powers

is Essential to the Rule of Law in the United

BONNIE akon cioinishicac sc claneageteneenacetaas kadlosaimeta eas 3

II. Prior and Subsequent Uses of Section 102

Waiver Authority Demonstrate the Wide-

Ranging Potential Harm that Can Result From

PO RIOD sicisics racitinds Sadbatsgbaadglacun aarkiemsnetioodon 6

III. The Laws Waived in This Case Protect

Important Societal Interests ...................cc000 17

A. The Resources at Risk in This Case and as a

Result of Secretary Chertoffs Use of this

Waiver Prior to and Subsequent to this Case

Are Highly Significant to the Region and to

CHO DI i ccsaicins ciiscecesnansninsnendunaniania poalanten 17

B. The Underlying Laws at Issue in This Case

Do Not Prevent the Realization of Border

Security and Their Procedures Guard

Against Unintended Consequences ......... 19

CAIRO ins ss cccsanc sacisniinpencenn tikeiatbataneeilatenie 25

BaP ERIE i ie as vances cahsnastnienaneotansbieiaaniaeauaiial la

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Abbott Laboratories v. Gardner,

EE BI IO a istcncenaeasschiineavecsnesdccnsdacdous 5

Gonzales v. O Centro Espirita Beneficente Uniao Do

Vegetal, 546 U.S. 418 (2006) ......e.cceccceseecceseee. 11

Kleppe v. Sierra Club,

427 U.S. 390 at 401-02 (1976) ..................0000. 20

Marbury v. Madison,

1 Cranch (5 U.S.) 137 (1809) ........................000¢ .4

Robertson v. Methow Valley Citizens Council,

Oe er EI IE vaste cs cn tnicicitsscpeccdesunieducsdanstc 21

Shalala v. Ilinois Council on Long Term Health

Care, Inc., 529 U.S. 1 (2000)

(Thomas, J. GiGBOnting) ..............cc.ccscscosesscsceceeee 5

STATUTES

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub. L. No. 104-208,

Stat. 3009, 3009-544 (codified as amended at 8

U.S.C. § 1103 note), Section 102(c)......... passim

Re eA CN osca si sacinecidaredndccekedsesenécnnatuie 6, 9

Pgs eI I ois ccncnecsasccessesasctcnccosceniivenecans 8

ee OE CD, a vcitcnsesicscacsscniovctasecenssasmenaceie 9

SM Be MRO so san sve saosin voaassantivncieeevonpauuileuans 9

BG UBS. 5 431 OF G0G.......:05000000.0005. + Sdindeamrameal 8

TABLE OF AUTHORITIES - Continued

Page(s)

WI, © OG Boones sccscccsssccosscccacee 18, 19

16 U.S.C. I i. cacussunssuiscddeicenmaaboueiaasds 8

I a ena suicssdcnsdnsaadiadisepscoaiauemoanaden 8

IE sian scion citsisyaisnnisnnesiacndéartasen 10

Be I iivivnsccncsscha cénsccsssnstcesspnansedasane 9

I oi vicccittesnsccisisciccssccsvanisescecens 9

Te OD onicsccescccseccscnscconscosssnsscescooss 9

Or ee isa aan nncesencncaneasdsunssnnnes 8

rir ee aioe vei ccc cseccsnspiscenscdiiaion 8,12

ee EE EDIE ons sc cesssceccccosncescs cvcac . 8,12

rs ee io voi vesncnsncs ace cctovsacesssosascvceenss 11

Ee PN I aaiisiiassnssisecisscchcesasiasicaceadanontaees 8

ee ee I soos csisvccnincsdndechavonccnscodasiccuas 8

BE re Be Oe I vised cksesccccdadctnacsccestshaceasooas 9

PR es Oe EE ED iors icin cntvetnsncnccasesscccsvsiasebensen 8

ee he I io vee vss ccsctassencdiccsasaccetins 7,20

I ie a cs kencsncnenschsbiendadiopabanlanes 10

Sr Ra We I WE ONE on cscs cccewsavoctvannstcinds 9, 12,13

OE sc aicusaviscucdereeaus 13

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NN ou cansscnasapcanen testbeds sanonmiorn 9

es EE OO ON ois viii ticcossnsccscedscoseavvinateaionsas 8

lv

TABLE OF AUTHORITIES - Continued

Page(s)

Re. ee as boc vnc ccivey dcccnsscccdnucsedeatians 8

Oe ee aoc cscs acesnnscccciavensneabane 9

We ee I BE oon scat cticccsevecnsssnceosencancenses 10

Ae ee Gir Sains canines cocestsounsancaaaseadanie 10

MD AFA ee OE OG osenescccicsnecisccccstnsscadans passim

Fe I in csiccincssesscsecenestecsiscenaseroaneas 22

Fe ee ois ccicanecccctsisnccccccensconsisnnsnnnes 8

Fete FE IE os svi sceccsseceisnccnsacsconacovcasesseas 8

BE is ee ON oii pedir sscestivdsnesenstcorandecascesinniben 8

Arizona Desert Wilderness Act, Pub. L. 101-628, 104

Stat. 4469 (1990) § 301(a)-(B) ou... eeeeeeeeceeeees 9

California Desert Protection Act, Pub. L. No. 103-

433, 108 Stat. 4471 (1994), Title I §§102(29) and

| ERR PS FO PE ASO A mC UIE SRT RPE N OREO 9

Military Lands Withdrawal Act of 1999, Pub. L. 106-

65, 113 Stat. 512, 885 (Oct. 5, 1999) ................ 6

National Parks and Recreation Act of 1978, Pub. L.

95-625, 92 Stat. 3467, §§ 401(7), 403, and 404 9

Otay Mountain Wilderness Act of 1999, Pub. L. 106-

Fae PI FEE iia ks eclacinch snake kavannareons 9

TABLE OF AUTHORITIES - Continued

Vv

TABLE OF AUTHORITIES - Continued

Page(s)

REGULATIONS AND

FEDERAL REGISTER NOTICES

FN ss sonsascnccncncsossssnacnsescesneanincens 12

cs cccancccncscessenssessnsoseseacnans 20

TE II cs vipcccnceiccnsncsncnccsecsssccoussessece 22, 23

I I io onc. cstces cosconcccccscsscdcensenss 24

SE 25

70 Fed. Reg. 55, 622 (Sept. 22, 2005).............. ree

72 Fed. Reg. 2,535 (Jan. 19, 2007) ...............0008 6

72 Fed. Reg. 60,870 (Oct. 26, 2007)................... 21

73 Fed. Reg. 18,293 (April 3, 2008)................... 7

73 Fed. Reg. 18,294 (Apr. 3, 2008).............0...02000. 7

73 Fed. Reg. 19,077 (Apr. 8, 2008).......................088. 7

MISCELLANEOUS

A. Cordova, C.A. de la Parra, A Barrier to our

Shared Environment, (18t Ed. 2007)............... 15

Barry, Dan, A Natural Treasure That May End Up

Without a Country, N.Y. Times, April 7, 2008 16

S. Breyer, R. Stewart, C. Sunstein & M. Spitzer,

Administrative Law and Regulatory Policy 985

ie acca ack ensinstnsnbincidncnansiiokdne 6

vi

TABLE OF AUTHORITIES - Continued

Page(s)

Bureau of Land Management, Tucson Field Office,

Border Fence Environmental Assessment, Aug.

TARO GSR aS aS OER 20

Declaration of Independence, July 4, 1776 ............ 4

The Federalist No. 47 (James Madison) (C. Rossiter

a s iscdasigmtiineneccie 5

General Accounting Office, U.S.-Mexico Border:

Issues and Challenges Confronting the U.S. and

Mexico, NSIAD-99-190, July 1, 1999............. 24

Hass, Christine C., “Landscape Fragmentation and

Connectivity for Carnivores in the Upper San

Pedro Basin”, Fort Huachuca Wildlife Office, _

Fort Huachuca, Arizona........................c.c00.006 18

Leones, Julie, Tourism in Rural Arizona, (University

of Arizona, College of Agriculture, Tucson, AZ),

Apr. 1993, available at

http:/www.ag.arizona.edu/arec/pubs.cdnews/Vol

De is a casceaceemncnossabanses 18

Leskiw, Thomas, Aiver Lost, River Found: The

Colorado & San Pedro Rivers, Terrain.org., No.

16, Spring/Summer 2005, available at

www.terrain.org/essays/16/leskiw.htm .......... 17

Memorandum from Stephen R. Vina & Todd

~ Tatelman, Legislative Attorneys, Am. Law

Division, Cong. Research Serv., on Section 102 of

HR. 418, Waiver of Laws Necessary for

Improvement of Barriers at Borders, (Feb. 9,

a schtscenlclencnioomee 5

wii

TABLE OF AUTHORITIES - Continued

Page(s)

Press Release, Dept. of Homeland Security, DHS

Exercises Waiver Authority to Expedite

Advancements in Border Security, (Apr. 1, 2008),

available at

www.dhs.gov/xnews/releases/pr_1207080713748.

San Pedro Expert Study Team Report: Sustaining

and Enhancing Riparian Migratory Bird Habitat

on the Upper San Pedro River, Executive

Summary (March 1999) zn Secretariat of the

Commission on Environmental Cooperation,

Ribbon of Life: An Agenda for Preserving

Transboundary Migratory Bird Habitat on the

Upper San Pedro River (June 1999), at 16,

avatilable at http://www.cec.org/files/pdf/SP-

BRN, MIT INU oiicinsicts cendsccsckacdcacemssicrcenssnticossene 17

Statement of then Secretary of Energy Admiral

Watkins before the House Armed Services

Committee, April 28, 1992, Transcript, 15 ... 23

Temporary Restraining Order Hearing,

a he ap acalenc ci coaapdiicdeebaswendaccdonn 21

U.S. Census, 2000, available at

http://www.borderhealth.org/files/res_848.pdf 16

BRIEF OF AMICI CURIAE

NATIONAL PUBLIC INTEREST AND RELIGIOUS

ORGANIZATIONS,

A FEDERALLY RECOGNIZED TRIBE,

AND A CHURCH

INTERESTS OF AMICT

The organizations listed in the appendix, includ-

ing a federally recognized tribe, a church, and non-

profit organizations supporting work in the fields of

religion, environmental protection, historic and ar-

chaeological protection, submit this amicus curiae

brief in support of the petition for a writ of certiorari

filed by Defenders of Wildlife and Sierra Club (“De-

fenders”).1 Amuci have substantial experience and

interest in the laws that are the subject of the waiver

exercised in this case, and in laws waived by the re-

spondent under the same statute before and since

the District Court’s ruling in this case. Amici also

have demonstrated interest and expertise regarding

the natural and historic resources and religious in-

terests protected by the laws waived.

This case raises the significant question of

whether Congress can delegate to an executive

branch official the authority to waive all laws — ex-

cept for the Constitution — if that official finds in his

or her sole discretion that such a waiver is necessary

to ensure expeditious construction of barriers and

1 Counsel for respondent received timely notice of the in-

tent to file this brief under Rule 37.2(a) and consented to it. All

parties have consented to the filing of this brief. No counsel for

a party in this case authored this brief in whole or in part, and

no person or entity, other than amici or their counsel, made a

monetary contribution in the brief’s preparation or submission.

2

roads in the vicinity of the U.S. border with Mexico.

Secretary of the Department of Homeland Security

Michael Chertoff has now utilized such authority

embedded in 102(c) of the Illegal Immigration Re-

form and Immigrant Responsibility Act of 1996

(IIRIRA), 8 U.S.C. § 1103 note, five times. Secretary

Chertoffs most recent waiver covered thirty-six laws

for hundreds of miles of the border area, underscor-

ing am.ci’s concerns. The majority of the laws waived

by Secretary Chertoff have as their purpose protec-

tion of the environment, wildlife, and historic and

archaeological sites, as well as protection of Native

American sacred sites, religious practices of Native

American tribes, and religious practices of all faiths.

But the waiver provision is not limited to such laws

— it gives the Secretary unfettered discretion to

waive any law.

Amiuci’s brief is intended to give the Court a

fuller understanding of the values and legal rights,

including the rights of private property owners, that

are at risk from the exercise of this extraordinary

power to override all law, to highlight the societal

interests protected by these laws and to describe

some of the resources, places and practices that are

directly threatened because of the waiver authority

bestowed on the Secretary by a Congress abdicating

its legislative responsibilities.

SUMMARY OF THE ARGUMENT

Amici believe this Court’s review of Defenders’

petition is critical to resolve the question of whether

Congress has overstepped the Constitution’s

boundaries with regard to the separation of powers.

Congress has put the executive branch in a position

3

to act in the role of a legislative body in a way that

affects U.S. citizens’ religious freedoms and their

ability to protect and preserve our Nation’s environ-

mental and historic resources. Such a grant of au-

thority is too broad, and violates the plain intention

of the Framers of the Constitution in devising a sys-

tem that separates the powers between the branches

of government.

Over the past few decades, Congress has enacted

an integrated set of statutes that reconcile the public

interest in religious freedom, tribal practices and re-

sources, and environmental protection and conserva-

tion with myriad other interests secured by govern-

mental and private action. Amuci’s’ purpose in sub-

mitting this brief is to provide this Court with a

fuller understanding of the repercussions of giving

an executive branch official the unfettered discretion

and authority to waive these laws.

ARGUMENT

I. THIS CASE DEMONSTRATES WHY THE

CONSTITUTIONALLY MANDATED

SEPARATION OF POWERS IS ESSENTIAL TO

THE RULE OF LAW IN THE UNITED STATES

Separation of powers is enshrined in the first

three articles of the U.S. Constitution and virtually

defines American governance. Over two hundred

years of American jurisprudence have addressed the

finer points of the legal relationship between the leg-

islative and executive branches of government, but

have not altered Congress’s most fundamental role

as the legislative body that enacts statutory law. The

4

virtue of this system rests, as Justice Marshall ob-

‘served early in the country’s history, on the proposi-

tion that, “The powers of the legislature are defined

and limited; and that those limits may not be mis-

taken, or forgotten, the constitution is written.”

Marbury v. Madison, 1 Cranch 137, (5 U.S.) 137

(1803). Inherent in this system is the concept that

Congress legislates on particular subject matter,

narrow or broad as it may be, that the laws are ac-

cessible to those affected by them, and that citizens

can anticipate what laws will apply in a given situa-

tion.

The authors of the Constitution had very strong

views about the necessity of separating the authori-

ties of the three branches of government, as a direct

result of their experience of the “History of repeated

Injuries and Usurpations” amounting to an “absolute

Tyranny” over the colonies, Declaration of Independ-

ence 92.. As grounds for forming a new nation, the

first ten specific grievances enumerated in the Dec-

laration of Independence as grounds for forming a

new nation spelled out King George III's failure to

respect either the legislative or judicial branches of

government. Thus, in drafting the new nation’s ccn-

stitution, the founders were adamant that, “where

the WHOLE power of one department is exercised by

the same hands which possess the WHOLE power of

another department, the fundamental principles of a

free constitution are subverted . . . ‘When the legisla-

tive and executive powers are united in the same

person or body .. . there can be no liberty, because

apprehensions may arise lest THE SAME monarch

or senate should ENACT tyrannical laws to

EXECUTE them in a tyrannical manner.” The Fed-

5

eralist No. 47, at 303 (James Madison) (C. Rossiter

ed., 1961) (emphases in original).

The statutory provision at issue here epitomizes

the mix of governmental functions that the founders

tried to guard against. Indeed, Section 102 of IIRIA

is unprecedented. The Congressional Research Ser-.

vice has not been able to identify any other provision

in American history this broad and sweeping. See

Memorandum from Stephen R. Vifia & Todd Tatel-

man, Legislative Attorneys, Am. Law Division, Cong.

Research Serv. On Section 102 of H.R. 418, Waiver

of Laws Necessary for Improvement of Barriers at

Borders 2-4 (Feb. 9, 2005).

This unprecedented grant of legislative authority

to an executive branch official is exacerbated by the

lack of judicial review typically afforded citizens who

are concerned about a federal agency’s compliance

with a statute. As Justice Thomas observed in his

dissent in Shalala v. Illinois Council on Long Term

Health Care, Inc.: “Our constitutional structure con-

templates judicial review as a check on administra-

tive action that is in disregard of legislative man-

dates or constitutional rights.” 529 U.S. 1, 44 (2000)

(Thomas, J. dissenting).” The long presumption of

the availability of judicial review of agency actions

was reinforced by this Court’s interpretation of the

Administrative Procedure Act. See Abbott Laborato-

ries v. Gardner, 387 U.S. 136 (1967). In this case

Secretary Chertoffs waiver includes the Administra-

tive Procedure Act. The lack of judicial review af-

forded to citizens and tribal, state, or local entities

by Section 102(c) of the IIRIRA eliminates account-

ability over the Secretary's actions. Such a broad,

sweeping grant of authority undercuts the “consid-

erations of accountability and legislative supremacy,

6

ideas embodied in article I, and also to rule of law

considerations, embodied in the due process clause . .

. . See S. Breyer, et al, Administrative Law and

Regulatory Policy 985 (5TH ed.. 2002).

II. PRIOR AND SUBSEQUENT USES OF

SECTION 102 WAIVER AUTHORITY

DEMONSTRATE THE WIDE-RANGING

POTENTIAL HARM THAT CAN RESULT

FROM ITS USE.

Amici wish to draw the Court’s attention to the

Secretary's waivers both before and after the filing of

the Petitioner’s lawsuit. These instances further il-

luminate the breadth and scope of the harm that de-

rives from the unprecedented authority in Section

102(c) of the ITRIRA.

' Secretary Chertoff first used Section 102(c) to

waive seven environmental and historic preservation

laws, the Administrative Procedure Act, 5 U.S.C. §

551 et seg. and “all federal, state, or other laws,

regulations and legal requirements of, deriving from,

or related to the subject of’ those laws for a fourteen

mile stretch of the southern border, beginning at the

Pacific Ocean. 70 Fed. Reg. 55,622, 623 (Sept. 22,

2005). He used the waiver authority again to exempt

compliance from seven environmental and historic

preservation laws, the Administrative Procedure

Act, 5 U.S.C. § 551, the Military Lands Withdrawal

Act of 1999, Pub. L. 106-65, 113 Stat. 512, 885 (Oct.

5, 1999), and all derivative and related federal, state

or other laws, regulations and legal requirements for

an area within the Barry M. Goldwater Range in

southwestern Arizona. 72 Fed. Reg. 2,535 (Jan. 19,

2007).

7

On April 1, 2008, the Secretary announced that

he was signing two more waivers of law. One per-

tains to a levee-border barrier project in Hidalgo

County, Texas. It waives twenty-two environmental

and historic preservation laws, the Administrative

Procedure Act, three laws relating to protection of

Native American graves, religious practices and reli-

gious freedom, and the Federal Grant and Coopera-

tive Agreement Act of 1997, 31 U.S.C. §§ 6303-6305,

and all derivative or related Federal, State and other

laws, regulations and legal requirements. 73 Fed.

Reg. 18,294 (Apr. 3, 2008); 73 Fed. Reg. 19,077 (Apr.

8, 2008) (corrected version including geographic co-

ordinates).

The second waiver covers large segments of the

border area in California, Arizona, New Mexico and

Texas, “encompassing roughly 470 total miles.” Press

Release, Dept. of Homeland Security, DHS Exercises

Waiver Authority to Expedite Advancements in Bor-

der Security, (April 1, 2008), available at

www.dhs.gov/xnews/releases/pr_1207080713748.sht

m. The actions covered by this waiver include the

construction of roads, fixed and mobile barriers, de-

tection equipment of all types including radar and

radio towers and lighting, and upkeep of these ob-

jects once constructed. 73 Fed. Reg. 18,293 (Apr. 3,

2008). And as the number of miles covered by the

waiver increases, so too does the list of laws waived;

to wit:

The National Environmental Policy Act, 42

U.S.C. § 4321 et seq.

The Endangered Species Act, 16 U.S.C. § 1531 et

seq.

8

The Federal Water Pollution Control Act (Clean

Water Act), 33 U.S.C. § 1251 et seq.

The National Historic Preservation Act, 16

U.S.C. § 470 et seq.

The Migratory Bird Treaty Act, 16 U.S.C. § 703

et seq.

The Clean Air Act, 42 U.S.C. § 7401 et seq.

The Archaeological Resources Protection Act, 16

U.S.C. § 470aa et seg.

The Safe Drinking Water Act, 42 U.S.C. § 300f et

seq.

The Noise Control Act, 42 U.S.C. § 4901 et seq.

The Solid Waste Disposal Act, as amended by

the Resources Conservation and Recovery

Act, 42 U.S.C. § 6901 et seq.

The Comprehensive Environmental Response,

Compensation And Liability Act, 42 U.S.C. §

9601 et seg.

The Archaeological and Historic Preservation

Act, 16 U.S.C. § 469 et seq.

The Antiquities Act, 16 U.S.C. § 431 et seg.

The Historic Sites, Buildings, and Antiquities

Act, 16 U.S.C. § 461 et seg.

The Wild and Scenic Rivers Act, 16 U.S.C. § 1281

et seq.

The Farmland Protection Policy Act, 7 U.S.C. §

4201 et seq.

The Coastal Zone Management Act, 16 U.S.C. §

1451 et seg.

9

The Wilderness Act, 16 U.S.C. § 1131 et seq.

The Federal Land Policy and Management Act,

42 U.S.C. § 1701 et seg.

The National Wildlife Refuge System Admini-

stration Act, 16 U.S.C. § 668dd-668ee

The Fish and Wildlife Coordination Act, 16

U.S.C. § 661 et seg.

The Administrative Procedure Act, 5 U.S.C. §

551 et seg.

The California Desert Protection Act, Pub. L. No.

103-433, 108 Stat 4471 (1004), Title I §§

102(29) and 103

The Otay Mountain Wilderness Act of 1999, Pub.

L. 106-145, 102(29) and § 103 of the Califor-

nia Desert Protection Act, Pub. L. 103-433

The National Park Service Organic Act, 16

U.S.C. §§ 1, 2-4

The National Park Service General Authorities

Act, 16 U.S.C. §§ la-1 et seq.

The National Parks and Recreation Act of 1978,

Pub. L. No. 95-625, 92 Stat. 3467, §§ 401(7),

403, and 404

The Arizona Desert Wilderness Act, Pub. L. 101-

628, 104 Stat. 4469 (1990) § 301(a)-()

The Rivers and Harbors Act of 1899, 33 U.S.C. §

403

The Eagle Protection Act, 16 U.S.C. § 668 et seq.

The Native American Graves Protection and Re-

patriation Act, 25 U.S.C. § 3001 et seg.

10

The American Indian Religious Freedom Act, 42

U.S.C. § 1996

The Religious Freedom Restoration Act, 42

U.S.C. § 2000bb

The National Forest Management Act of 1976,

16 U.S.C. § 1600 e¢ seq.

The Multiple Use and Sustained Yield Act of

1960, 16 U.S.C. § 528-531

The Secretary has now swept aside virtually the

entire panoply of the nation’s environmental laws.

From the safety and security of communities’ drink-

ing supplies in the Rio Grande to toxic leaching in

groundwater in California — the law is gone. Historic

and archaeological laws fare no better. The Adminis-

trative Procedure Act, a basic tool in the daily lives

of federal institutions, purportedly no longer applies.

And shockingly, laws passed to protect the religious

freedom, sacred sites and graves of Native American

tribes and the religious freedom of practitioners of

all faiths, are waived. All of these laws are impor-

tant. Below are a few examples.

The Religious Freedom Restoration Act of 1993

(RFRA), 42 U.S.C. § 2000bb, one of the statutes

waived in parts of California, Arizona, New Mexico

and Texas, requires that the government not sub-

stantially burden a person’s exercise of religion, even

if the burden results from a rule of general applica-

bility. The government may overcome this prohibi-

tion only through a showing that the burden it

wishes to impose is in furtherance of a compelling

governmental interest and is the least restrictive

means of furthering that interest. Jd. at § 2000bb-

1(b). This Court had occasion to underscore the fun-

11

damental centrality of the compelling interest test to

the interpretation of this Act (“Congress’ express de-

cision to legislate the compelling interest test indi-

cates that RFRA challenges should be adjudicated in

the same mauaer as constitutionally mandated ap-

plication of the test, including at the preliminary in-

junction stage.” Gonzales v. O Centro Espirita Bene-

ficente Uniao Do Vegetal, 546 U.S.418,430(2006).

This Court also observed in Gonzales that “We have

no cause to pretend that the task assigned by Con-

gress to the courts under RFRA is an easy one... .

But Congress has determined that courts should

strike sensible balances, pursuant to a compelling

interest test that requires the Government to ad-

dress the particular practice at issue.” Jd. at 439.

Neither amici represented here nor the public at

large has been informed as to particular religious

practices that compelled the Secretary to waive the

RFRA. That, of course, is the problem. By granting

the Secretary the enormous and unbounded author-

ity to waive “all laws”, Congress has transformed a

cabinet post into a one man quasi-legislative body,

able to eliminate the application of a law encompass-

ing Constitutional standards without any specific

explanation as to the rationale.

Laws protecting the country’s historic heritage

are also included in several of the waivers. Congress

enacted the National Historic Preservation Act

(NHPA) of 1966 in recognition that “historic proper-

ties significant to the Nation's heritage are being lost

or substantially altered,” and that “the preservation

of this irreplaceable heritage is in the public inter-

est.” 16 U.S.C. §§ 470(b)(3), (b)(4). Section 106 of the

NHPA is aimed at ensuring that federal agencies

“take into account” the potential effects of their ac-

12

tions on historic properties. Jd. § 470f. Although Sec-

tion 106 is a procedural requirement, the fundamen-

tal goal of the Section 106 process is to “seek ways to

avoid, minimize or mitigate any adverse effects on

historic properties.” 36 C.F.R. § 800.1(a).

Similarly, the Archaeological Resources Protec-

tion Act (ARPA) of 1979 seeks “to protect archaeo-

logical resources on public lands and Indian lands,”

in part because “these resources are increasingly en-

dangered,” and “existing Federal laws do not provide

adequate protection to prevent the loss and destruc-

tion of those archaeological resources and sites re-

sulting from uncontrolled excavations and pillage.”

16 U.S.C. §§ 470aa et seg. Enforced by criminal or

civil penalties, ARPA prohibits “excavatfion], re-

mov(al], damage, or attempt to excavate, remove,

damage, or otherwise alter[ation] or deface[ment]

[of] any archaeological resource on public lands or

Indian lands” unless authorized by a permit issued

pursuant to Section 4 of ARPA. Jd. § 470ee. ARPA

applies to “any officer, employee, agent, department,

or instrumentality of the United States, of any In-

dian tribe, or of any State or political subdivision

thereof.” Jd. § 470bb(6).

Congress passed the Native American Graves

Protection and Repatriation Act of 1990 (NAGPRA),

25 U.S.C. §§ 3001 et seq., in recognition of the sig-

nificance and loss of Native American human re-

mains and other objects of funerary or cultural sig-

nificance. Section 3 of NAGPRA sets forth require-

ments for regulating the intentional or inadvertent

discovery of human remains, funerary objects, sacred

objects, or objects of cultural patrimony that are dis-

covered on Federal or tribal lands, including a proc-

ess for ceasing activities when human remains or ob-

13

jects identified in the statute are discovered and a

process for consulting with potentially interested

Tribes. 25 U.S.C. § 3002(d).

Important historic, cultural, and archaeological

resources within the area of the proposed border

fence are at risk of being lost or irreparably de-

stroyed by the fence’s construction and on-going ac-

tivities associated with the border fence. For:exam-

ple, in New Mexico, dozens of archaeological sites of

both prehistoric Native American and Anglo-

European origin have been identified in a one hun-

dred foot wide corridor stretching more: than 123

miles along the border between Anapra and Ante-

lope Wells. The New Mexico State Historic Preserva-

tion Officer has examined forty-eight of these sites

and determined that ten of them are eligible for list-

ing in the National Register of Historic Places. Of

even greater concern, however, are the estimated

hundreds, if not thousands, of historic and cultural

resources that have not yet been identified. Waiving

historic preservation laws, such as NHPA, ARPA,

and NAGPRA, will have the effect of potentially de-

stroying or damaging known and as yet unknown

historic, cultural, and archaeological resources with-

out any consideration of their importance and/or ef-

fort to identify and protect such resources.

The Tohono O’odham Nation has extremely

strong interests in the seventy-five mile construction

zone along its southern border with Mexico. In this

area, the Nation exercises governmental authority

over the land and resources within its reservation.

The latest waiver issued by Secretary Chertoff al-

lows construction to proceed without compliance

with the environmental requirements that the Na-

tion has enacted into tribal law, requirements that

14

are in support of the federal laws which have just

been waived.

The type of harm that can occur as a result of

these waivers has already been suffered by the Na-

tion. After issuance of the Goldwater Range waiver

in 2007, a Boeing Company subcontractor widened a

fifteen-mile stretch of the E] Camino del Diablo Road

without first performing an archaeological clearance

and without informing the federal land management

agency. Two known Hohokam archaeological sites

were damaged from the blading.

In areas where the latest 470-mile waiver has

been issued, known archaeological sites of impor-

tance to the Nation are threatened. For example, in

the area between Naco and Douglas in eastern Ari-

zona, there are identified archaeological sites. How-

ever, the effect of the waiver is to remove require-

ments that these sites be cleared and excavated be-

fore construction proceeds. Damage from construc-

tion equipment is already known to have occurred.

In a field visit in October, 2007, fragments of human

remains were observed in the tire tracks of the

heavy construction equipment.’ If archaeological

clearance had been performed in advance, as re-

quired by federal law, such human remains would

have been retrieved before the construction equip-

ment arrived.

Virtually all of the nation’s protection for wild-

life, air, and water, protection from toxics and other

2 The El Camino del Diablo Road is listed on the National

Register of Historic Places.

8 Personal communication with Peter Steere, Cultural Re-

sources Manager, Tohono O’odham Nation, April 10, 2008.

15

forms of pollution, is eradicated by this later waiver.

For example, by waiving the Endangered Species

Act, Homeland Security is free to construct fences

without consulting with the U.S. Fish and Wildlife

Service, and without adding needed protective

measures for countless endangered or threatened

species. A fence divides populations and prevents

species from reaching needed sources of water. It

will, for example, prevent the small remaining popu-

lation of ocelots in the U.S. from swimming across

the Rio Grande to mate. Mexican grey wolves, penin-

sular bighorn sheep, Sonoran pronghorn, and lesser

long-nosed bat, to name, are likely to be adversely

affected. The future of migratory animals, such as a

free-ranging bison herd that grazes in the Chihua-

huan Desert grasslands and migrates between Mex-

ico and New Mexico, may be compromised. Black

bears blocked by a border fence may suffer loss of

genetic diversity. Other identified problems include

reduction in aquifer recharge capacity, modification

of drainages, public health problems, soil compac-

tion, introduction of non-native species and a myriad

of other concerns. A. Cordova, C.A. de la Parra, A

Barrier to our Shared Environment, (1** Ed. 2007).

The Sabal Palm Grove Audubon Sanctuary in

Texas is a privately owned but publicly accessible

treasure that will be significantly affected by the

proposed construction. Harboring one of the few re-

maining stands of the palm forests that greeted

Spanish explorers in the sixteenth century (the Rio

Grande was originally named the “Rio de las Pal-

mas’), all of the Audubon Sanctuary’s 527 acres lies

south of the planned fence. Over 280 species of birds,

mammals and other animals, including two federally

endangered and nineteen state threatened species

16

live in the Sanctuary. And the impacts will not be

limited to wildlife. This Sanctuary and other special

places in the Rio Grande Valley have stimulated a

flourishing ecotourism business, attracting birders

from the world. Barry, Dan, A Natural Treasure

That May End Up Without a Country, N.Y. Times,

April 7, 2008. The private property interests of the

Sanctuary and the economy of the region will be

badly affected by Congress’ willingness to allow the

Secretary of Homeland Security waive laws designed

to protect these interests.

Further, the purported scope of these waivers

cannot be accurately defined. While federal statutes

are named, all of the waivers also purport to include

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

gal requirements of, deriving from, or related to the

subject of those laws.” It is impossible to know in ad-

vance what this provision is supposed to cover. Does

it include sanitation disposal laws in Del Rio, Texas?

Does it purport to waive government-to-government

relationships with the numerous federally and state

recognized tribes whose lands and interests are ad-

jacent to the southern border? What of the rights of

over 80,792 individual Native Americans who live on

the U.S. side of the border region, and their rights

under U.S. treaties and laws? U.S. Census, 2000,

available at http://factfinder.census.gov. The Secre-

tary’s sweeping use of this unprecedented authority

makes it impossible for a citizen to know which laws

are being waived. This unsettling result dramati-

cally demonstrates the difficulty with Congress’

grant of legislative-like authority to the Secretary of

Homeland Security.

17

Ill. THE LAWS WAIVED IN THIS CASE PROTECT

IMPORTANT SOCIETAL INTERESTS

A. THE RESOURCES AT RISK IN THIS CASE

ARE HIGHLY SIGNIFICANT TO THE

REGION AND THE NATION

The San Pedro River, one of the last free-flowing

rivers in the Southwest, cuts a narrow, undulating

swath of green and gold through the Sonoran desert.

Within the last 150 years, more than 80 species of

mammals have been identified in the area, “one of

the richest assemblages of land mammal species in

the world.”4 The San Pedro also provides habitat for

approximately three hundred and ninety bird spe-

cies, including about a hundred species that use the

area for nesting purposes, and millions of migrating

songbirds. Thomas Leskiw, “River Lost, River

Found: The Colorado & San Pedro Rivers,” Ter-

rain.org., No. 16, Spring/Summer 2005, available at

http://www.terrain.org/essays/16/leskiw.htm.

These characteristics have made the San Pedro

riparian area one of the country’s most important

birding areas. It has been designated as the National

Audubon Society’ first Globally Important Bird

Area and a world heritage natural area. A wide vari-

ety of mammals, reptiles and amphibians also in-

4 San Pedro Expert Study Team Report: Sustaining and

Enhancing Riparian Migratory Bird Habitat on the Upper San

Pedro River, Executive Summary (March 1999), in Secretariat

of the Commission on Environmental Cooperation, Aibbon of

Life: An Agenda for Preserving Transboundary Migratory Bird

Habitat on the Upper San Pedro River (June 1999), at 16,

available at http://www.cec.org/files/pdf/SP-ENGL_EN.PDF.

18

habit the area, with some mammals apparently

traversing the border back and forth between Mexico

and the United States. Christine C. Hass, Landscape

fragmentation and connectivity for carnivores in the

Upper San Pedro Basin, Fort Huachuca Wildlife Of-

fice, Fort Huachuca, Arizona. The wildlife values of

the San Pedro riparian area have stimulated a ro-

bust business in ecotourism, with estimates of the

total economic impacts to the local economy ranging

into millions of dollars. Julia Leones, “Jourtsm in

Rural Arizona’, Community Development Issues

(University of Arizona College of Agriculture, Tuc-

son, AZ), Apr 1993 available at

http://www.ag.arizona.edu/arce/pubs/cdnews/VOI11No

.1.pdf.

It was for all of these reasons and more — “to pro-

tect the riparian area and the aquatic, wildlife, ar-

chaeological, paleontological, scientific, cultural,

education, and recreation resources of the public

lands surrounding the San Pedro River” — that Con-

gress established the San Pedro Riparian National

Conservation area. In the Arizona-Idaho Conserva-

tion Act of 1988, Congress directed the Secretary of

the Department of the Interior to allow only uses of

the area that would “further the primary purposes

for which the conservation area is éstablished.” 16

U.S.C. § 460xx-1(b).

The San Pedro river valley is also within the

aboriginal territory of the Tohono O’odham Nation

and other Indian tribes in Arizona. The archaeologi-

cal sites encountered during the construction of the

fence in this area contain prehistoric artifacts and

human remains of the Hohokam, who are the ances-

tors of the Tohono O’odham, and of the Mogollon cul-

ture to the north.

19

B. THE UNDERLYING LAWS AT ISSUE IN

THIS CASE DO NOT PREVENT THE

REALIZATION OF BORDER SECURITY,

AND THEIR PROCEDURES GUARD

AGAINST UNINTENDED

CONSEQUENCES

This case demonstrates the serious effects of Sec-

tion 102(c) of the IIRIRA. The federal action at issue

is the transfer of a perpetual right of way from the

Bureau of Land Management (BLM), an agency

within the Department of the Interior, to the De-

partment of Homeland Security (DHS), for construc-

tion of a barrier at the border within the San Pedro

Riparian National Conservation Area. After pursu-

ing administrative remedies, petitioners filed this

action, challenging the Bureau of Land Manage-

ment’s compliance with the National Environmental

Policy Act (NEPA), 42 U.S.C. § 4321 et seq. and the

Arizona-Idaho Conservation Act of 1988, 16 U.S.C. §

460xx-1

In their initial pleadings, Petitioners articulated

extensive damage that could occur if DHS proceeded

with its proposed actions of clearing and grading a

sixty-foot-wide strip of land along the southern

boundary of the San Pedro Riparian National Con-

servation Area, constructing new roads, and building

permanent and temporary vehicle barriers and pe-

destrian fencing. These proposed actions were to

cross sixty-six ephemeral drainages, as well as the

San Pedro River BLM’s limited environmental

analysis predicted impacts including erosion, altera-

tion in stream channel morphologic stability and im-

pacts on the San Pedro River’s hydrology and stabil-

20

ity, as well as a variety of adverse effects on wildlife,

including species listed under the Endangered Spe-

cies Act, 16 U.S.C. § 1531 et seg. Bureau of Land

Management, Tucson Field Office, Border Fence En-

vironmental Assessment, Aug. 2007 (EA) at 6-13.

Petitioners argued that under NEPA, these types of

impacts merited a comprehensive and careful analy-

sis before proceeding.

Petitioners also argued that a broader, compre-

hensive analysis was required under NEPA to assess

the effects, including the cumulative effects, of the

barriers that were simultaneously being constructed

or proposed for construction elsewhere along the en-

tire Arizona-Mexico border. Petitioners pointed to

this Court’s articulation in Aleppe v. Sierra Club,

427 U.S. 390 (1976), defining a “proposal” for pur-

poses of NEPA as a “regional plan of development . .

. [which] define[s] fairly precisely the scope and lim-

its of the proposed development of the region.” 427

U.S. at 401-02. The Council on Environmental Qual-

ity’s implementing regulations similarly directs that

a single course impact statement be prepared for

“Proposals or parts of proposals which are related to

each other closely enough to be, in effect, a single

course of action. .. “ 40 C.F.R. § 1502.4(a).

District Court Judge Huvelle found that plain-

tiffs had demonstrated a substantial likelihood of

success on the merits with respect to the NEPA

claim and issued a temporary restraining order

(TRO). Specifically, she found that BLM’s discussion

of cumulative impacts suffered from both factual and

legal flaws, and that the agency's failure to even ac-

knowledge the potential cumulative impacts of any-

thing outside of the San Pedro watershed rendered

21

the environmental assessment inadequate. TRO Hr’g

Tr. 92-94, Oct. 10, 2007.

Sixteen days later, Secretary Chertoff waived not

only the laws upon which plaintiffs’ lawsuit was

based, but seventeen other statutes. 72 Fed. Reg.

60,870 (Oct. 26, 2007). His notice specifically refer-

enced Judge Huvelle’s Order although neither he nor

the Department were parties to the lawsuit. The dis-

trict court’s decision to uphold the constitutionality

of his action preceded Petitioners’ pending petition

for certiorari. Under Section 102(c) of the IIRIRA,

this Court is the only venue for review of an inter-

locutory or final judgment, decree or order of a fed-

eral district court. 8 U.S.C. § 1103 note.

It is, of course, impossible to predict the outcome

of the litigation had Secretary Chertoff not waived

NEPA and nineteen other laws. All we know is that

Judge Huvelle found enough merit in Petitioner’s

claim under NEPA to issue a TRO. The normal

course of litigation was cut off by the Secretary’s

execution of the waiver.

Because NEPA is the law that was the basis of

the TRO, it is worth reflecting on its purpose and

process. This Court has long recognized that compli-

ance with NEPA’s procedural requirement serves

two important purposes: (1) to inform the agency de-

cisionmaker who, as the result of NEPA, “will have

available, and will carefully consider, detailed in-

formation concerning significant environmental im-

pacts ....“ before, not after, he or she makes a deci-

sion with serious consequences. SHobertson v.

Methow Valley Citizens Council, 490 U.S. 332, 349

(1989), citing Baltimore Gas & Electric Co. v. Natu-

ral Res. Defense Council, Inc., 462 U.S. 87, 97 (1983)

22

and Weinberger v. Catholic Action of Hawaii/Peace

Educ. Project, 454 U.S. 139, 143 (1981), and (2) pro-

vide a systematic way of engaging the public and

other government agencies, whether federal, state,

tribal or local, in the analysis of the proposed action.

Id. As the Court stated in Robertson:

Simply by focusing the agency’s attention on

the environmental consequences of a pro-

posed project, NEPA ensures that important

effects will not be overlooked or underesti-

mated only to be discovered after resources

have been committed or the die otherwise

cast. ...

Publication of an EIS [environmental impact

statement], both in draft and final form, also

serves a larger information role. It gives the

public the assurance that the agency ‘has in-

deed considered environmental concerns in

its decisionmaking process [cite omitted],

and, perhaps more significantly, provides a

springboard for public comment, see L.

Caldwell, Science and the National Envi-

ronmental Policy Act 72 (1982).

Robertson at 349-50.

Compliance with NEPA would not prevent DHS

from achieving its goal of attaining greatly improved

security at the U.S.-Mexico border. This is particu-

larly true because of NEPA’s requirement to identify

and analyze the effects of alternatives to the pro-

posed action. 42 U.S.C. § 4332(c) (iii); 40 C.F.R. §

1502.14 (2007).

The evaluation of reasonable alternative ways of

achieving an agency’s purpose and need is, in the

words of the Council on Environmental Quality’s

23

regulations implementing the procedural require-

ments of NEPA, “the heart of the environmental im-

pact statement” process. 40 C.F.R. § 1502.14. With-

out the alternatives requirement, the NEPA process

would simply document the anticipated effects of a

decision. Admiral James Watkins, Secretary of En-

ergy under President George Herbert Walker Push,

emphasized this quintessential benefit of the NEPA

process when he testified before Congress about his

decision regarding the selection of a tritium produc-

tion technology: “Thank God for NEPA because there

were sO many pressures to make a selection for a

technology that might have been forced upon us and

that would have been wrong for the country.” Testi-

mony of then Secretary of Energy Admiral James

Watkins before the House Armed Services Commit-

tee, Congress (Apr. 28, 1992) Transcript, p. 15. The

systematic opportunity for both private property

owners as well as those with interests in public

lands along the border to have reasonable alterna-

tives considered by the Secretary are truncated by

waiver of the NEPA process.

The application and enforcement of NEPA has,

in fact, lead to the use of numerous viable alterna-

tives for constructing vehicle barriers on the 75-mile

border within the Tohono O’odham Nation. Customs

and Border Protection has estimated that there are

more than 7,200 illegal entries on the Nation daily

and the Nation has repeatedly supported a range of

border security enhancements, including integrated

radar-camera systems, tactical checkpoints, and the

construction of the vehicle barriers. These strategies

have been employed in a manner largely consistent

with federal legislation designed to protect natural

and cultural resources and human remains. These

24

measures have not prevented the construction of

barriers and roads on the Nation. In this remote de-

sert, which has been identified as one of the most

heavily trafficked drug and human smuggling corri-

dors on the border, compliance with the law and al-

ternative measures have not thwarted the DHS mis-

sion, but ignoring the law now will certainly expose

these resources to significant harm.

Implementation of NEPA to the proposed barri-

ers in the San Pedro Riparian area would not by any

means bar DHS from proceeding to what it would

consider a successful conclusion. Rather, a compre-

hensive analysis of alternatives might reveal a less

damaging, more efficient means of achieving en-,

hanced border security.

Finally, a concern may be raised about the time

necessary to complete the NEPA process in relation-

ship to the goals set by the Secretary for completion

of construction by a date certain (although note that

there is no statutory deadline). There are several

reasons this issue should not unduly concern the

Court. First, the goal of enhancing border security

has been the subject of government deliberation and

action for a number of years. Due diligence would

have suggested commencing the NEPA process years

ago for these activities. General Accounting Office,

U.S.-Mexico Border: Issues and Challenges Con-

fronting the U.S. and Mexico, NSIAD-99-190, July 1,

1999. Second, timeframes may be reduced upon “a

showing by the lead agency of compelling reasons of

national policy”. 40 C.F.R. § 1506.10(d). And finally,

should the Department believe that it faces emer-

gency circumstances, it may consult with the Council

on Environmental Quality about alternative ar-

25

rangements to the usual prozedure. 40 C.F.R. §

1506.11.

CONCLUSION

In sum, amici urge this Court to grant the write

of certiorari.

April 17, 2008

Respectfully submitted

DINAH BEAR

4019 18% Street, N.W. :

Washington, D.C. 20011-5324

(202) 906-9407

Counsel for Amici

APPENDIX

ec

la

APPENDIX

Description of Amici

The National Advocacy Center of the Sisters of

the Good Shepherd offers education through proc-

esses and strategies that address social justice issues

and advocates for the transformation of society to

the benefit of all people. The Center reflects the

spirituality, history and mission of the Sisters of the

Good Shepherd, working in solidarity with the disen-

franchised — particularly families, women, and chil-

dren.

The Center for Biological Diversity is a national

nonprofit conservation organization that utilizes sci-

ence, law and creative media to secure a future for

all species hovering on the brink of extinction. For

more than a decade, Center members and staff have

worked to conserve imperiled species and ecosystems

along the Arizona-Mexico border, with a particular

focus on the San Pedro River watershed. Construc-

tion of a border fence in the absence of any compli-

ance with federal environmental or conservation

laws will cause extensive damage to the San Pedro

River and imperil many species that rely on it for

their survival.

The Endangered Species Coalition is a national

network of approximately four hundred conserva-

tion, scientific, religious, sporting, outdoor recrea-

tion, business and community organizations working

to protect our nation’s disappearing wildlife and last

remaining wild places. Through education, outreach

and citizen involvement, the Endangered Species

Coalition works to protect endangered species and

the special places where they live. The Endangered

2a

Species Coalition specializes in grassroots organizing

to mobilize citizens to participate in the democratic

political process.

Greenpeace, Inc. (“Greenpeace”) is a non-profit

organization incorporated in California, with head-

quarters located in Washington, D.C. and offices in

Alaska and California. Greenpeace’s mission is to

raise public awareness of environmental problems

and promote changes that are essential to a green

and peaceful future. Greenpeace has been a leading

advocacy organization for more than two decades,

working on many environmental issues, including

climate, fisheries, toxic substances and the protec-

tion of wildlife and fauna. During this period,

Greenpeace has been a plaintiff in multitude of law-

suits involving the National Environmental Policy

Act of 1969, the Administrative Procedures Act and

other environmental laws.

The National Audubon Society, Inc., a not-for-

profit corporation organized under the laws of the

State of New York, has more than one million mem-

bers and supporters and a presence in all 50 states

through its 23 state offices, more than 450 certified

chapters, nature centers, sanctuaries, and education

and science programs. Audubon’s mission is to con-

serve and restore natural ecosystems, focusing on

birds, other wildlife, and their habitats for the bene-

fit of humanity and the earth’s biological diversity.

The National Trust for Historic Preservation

(National Trust) is a private nonprofit organization

chartered by Congress in 1949 “to facilitate public

participation in the preservation of our nation’s heri-

tage, and to further the historic preservation policy

of the United States. See 16 U.S.C. §§ 461, 468. With

3a

the strong support of more than 277,000 members

around the country, the National Trust works to pro-

tect significant historic sites and to advocate historic

preservation as a fundamental value in programs

and policies at all levels of government. The Na-

tional Trust also has a role in overseeing the imple-

mentation of the National Historic Preservation Act

(NHPA), since Congress designated the Chairman of

the National Trust as a member of the Advisory

Council on Historic Preservation, the independent

federal agency responsible for implementing and en-

forcing the NHPA. See id. § 470i(a)(8). The National

Trust’s expertise on historic preservation law is

widely recognized, and the Trust has participated as

amicus curiae before this Court in a variety of cases

involving historic preservation issues, ranging from

constitutional cases to issues of statutory interpreta-

tion.

The Natural Resources Defense Council, Inc.

(’NRDC”) is a national, not-for-profit membership

organization committed to the preservation, protec-

tion, and defense of the environment, public health,

and natural resources. For over thirty-five years,

NRDC has engaged in scientific analysis, public edu-

cation, advocacy, and litigation on a wide range of

environmental and health issues. NRDC has more

than 420,000 members nationwide.

The National Wildlife Federation (“NWF”) is one

of the nation’s largest non-profit conservation advo-

cacy and education organizations. It has more than

one million members, and has affiliate organizations

in 47 states and territories. NWF’s mission is to in-

spire Americans to protect wildlife for our children’s

future.

4a

The Society for American Archaeology is an in-

ternational organization that, since its founding in

1934, has been dedicated to research about, and in-

terpretation and protection of, the archaeological

heritage of the Americas. With more than 7,200

members, the Society represents professional ar-

chaeologists in colleges and universities, museums,

government agencies, and the private sector. The So-

ciety has members in all fifty states as well as many

other nations around the world.

The Tohono O'odham Nation is a federally rec-

ognized Indian tribe whose people have lived since

time immemorial within the Sonoran Desert in the

area now known as southern Arizona and northern

Sonora, Mexico. The Tohono O'odham or "desert

people" and their Hohokam ancestors farmed south-

ern Arizona watercourses and river valleys as far

east as the San Pedro River. The Nation’s current

reservation comprises approximately 2.8 million

acres, including 75 miles along the United States-

Mexico border, with U.S. and Mexican O’odham

communities divided by the boundary.

The Wilderness Society is a not-for profit public

interest membership organization headquartered in

Washington, D.C. Founded in 1935, the Society and

its approximately 250,000 members and supporter

are dedicated to protecting a national network of

wild lands and fostering an American land ethic. The

Society works to ensure wise management and pro-

tection of America's public lands, including our na-

tional forests, national parks, wildlife refuges, and

lands administered by the Bureau of Land Manage-

ment. The Society fulfills its mission through public

education, analysis and advocacy.

5a

World Wildlife Fund is an international non-

profit organization, headquartered in Washington,

D.C., with a presence in more than 100 countries

throughout the world, and a membership of 1.2 mil-

lionin the United States and almost 5 mil-

lion globally. WWF's mission is the conservation of

nature -- using the best available scientific knowl-

edge and advancing that knowledge where possi-

ble, to preserve the diversity and abundance of life

on Earth. WWF has identified 19 terrestrial and ma-

rine ecoregions around the world that are top priori-

ties for achieving this goal. One of those 19 is the

Chihuahuan Desert, which includes habitat compris-

ing public lands and populations of endangered and

threatened species affected by this case. WWF has

been working in the region since 1997 to restore

freshwater ecosystems, conserve grasslands and wet-

lands, halt illegal wildlife trade, protect large preda-

tors such as the jaguar, and promote best manage-

ment practices in Big Bend National Park.

The United Church of Christ is a Protestant

Christian denomination, headquartered in Cleve-

land, Ohio, with 1.2 million adherents. The Church

is a direct descendant of the Congregational faith of

the Mayflower Pilgrims. More than 600 of our 5,600

congregations were founded before 1776 and eleven

signers of the Declaration of Independence belonged

to one of our predecessor bodies.