United States District Court, D. Arizona
HONORABLE CINDY C. JORGENSON UNITED STATES DISTRICT JUDGE
matter, Plaintiffs allege that Defendants have violated the
National Environmental Policy Act (NEPA) and the Endangered
Species Act (ESA), and request declaratory and injunctive
relief. See Doc. 14 (First Amended Complaint) (also
adding a claim pursuant to the Freedom of Information Act not
material to this Order).
Plaintiffs allege Defendants violated NEPA by failing to
“further supplement its programmatic environmental
impact statement for the southern border enforcement
program.” See Id. at pg. 2. Plaintiffs further
allege that Defendants violated ESA by failing to
“undertake and complete consultation with the U.S. Fish
and Wildlife Service regarding the impacts of the southern
border enforcement program on threatened or endangered
species, and their designated critical habitat.”
See Id. at pg. 3 (alleging separate violations of
Section 7(a)(1) & (2)).
assert that the Court lacks jurisdiction to adjudicate
Plaintiffs' ESA claim, and have moved to dismiss the
alleged NEPA and ESA violations for failure to state
cognizable claims under either Act. See Doc. 22
(Partial Motion to Dismiss filed pursuant to Fed.R.Civ.P.
12). The Court will address each claim individually.
agency action that significantly affects the quality of our
environment must comply with NEPA. 42 U.S.C. § 4332(C).
Because NEPA does not provide a private cause of action,
Plaintiffs can only challenge Defendants' actions - or
lack thereof - under the Administrative Procedure Act (APA).
See Cent. Delta Water Agency v. U.S. Fish & Wildlife
Serv., 653 F.Supp.2d 1066, 1089 (E.D. Cal. 2009)
(“NEPA contains no private right of action [therefore]
NEPA claims must be brought under the APA”) (citing
Cetacean Cmty. v. Bush, 386 F.3d 1169, 1179 (9th
allows an individual to challenge a final agency action in
federal court if the individual has suffered a legal wrong
because of that agency action. See 5 U.S.C. §
701, et seq. Final agency action includes an
agency's failure to act when the action is legally
required. See Norton v. S. Utah Wilderness All., 542
U.S. 55, 64 (2004) (“a claim under [the APA] can
proceed only where a plaintiff asserts that an agency failed
to take a discrete agency action that it is
required to take”) (emphasis in original).
Plaintiffs allege that Defendants have failed to undertake
their legal duty to supplement a 2001 “supplemental
programmatic” environmental impact statement (EIS).
See Doc. 29 at pg. 24. An agency has a duty to
supplement an EIS if: (1) it introduces “substantial
changes” to a “proposed action”; or (2)
“significant new circumstances or information”
relevant to the environmental impacts of the agency's
action have come to light and “major Federal
action” will still occur. See 40 C.F.R. §
1502.9(c)(1)(i)-(ii); see also Ctr. for Biological
Diversity v. Salazar, 706 F.3d 1085, 1094 (9th Cir.
2013)) (quoting Norton v. S. Utah Wilderness
Alliance, 542 U.S. 55, 73 (2004)).
allege a number of events subsequent to the 2001
“supplemental programmatic” EIS (SPEIS) qualify
as “substantial changes” and that new,
significant information requires Defendants to supplement the
SPEIS. See Doc. 14. Specifically, “[s]ince
approval of the 2001 SPEIS, border security appropriations,
personnel, fencing and infrastructure, and surveillance
technology have dramatically increased” [and these
actions have resulted] in direct, indirect, and cumulative
environmental impacts along the U.S.-Mexico border that were
unaddressed or inadequately addressed in those prior
programmatic NEPA documents.” Id. at 45.
Plaintiffs allege that “greatly improved scientific
understanding of the conservation needs of borderland
wildlife species, [and] new information regarding threatened
and endangered species in the borderlands, including new and
improved information regarding the presence and extent of
those species and the designation of final or revised
critical habitat within 50 miles of the U.S.-Mexico border
under the Endangered Species Act for 27 of these species,
” have not been sufficiently considered by Defendants.
See Id. at pg. 46.
claim that Plaintiffs failed to allege what agency action
will still occur based on the 2001 SPEIS and that the
“southern border enforcement program” does not
exist. See Doc 22 at pg. 2. Despite Defendants'
claims, Plaintiffs' allegations are sufficient to allow
the case to proceed to discovery to determine the relevant
scope of the agency's activities with regards to the
environmental information presented in the Complaint. See
Concerned About Trident v. Rumsfeld, 555 F.2d 817, 825
(D.C. Cir. 1976) (describing the relevant inquiry into the
alleged need for an environmental impact study as fact-based,
rather than guided by “program
‘labels'”); see also, OSU
Student All. v. Ray, 699 F.3d 1053, 1078 (9th Cir. 2012)
(explaining that plaintiffs are entitled to discovery if they
allege a “plausible” claim).
the Complaint as true,  Defendants have plausibly taken a
number of discrete, discretionary actions to enforce border
security that have substantially changed the agency's
proposed action in the 2001 SPEIS, and that both significant
new circumstances and information relevant to the
environmental impacts of agency's actions have emerged.
See Doc. 14 at pgs. 29-41; see also,
Churchill Cty. v. Norton, 276 F.3d 1060, 1072 (9th
Cir. 2001) (“‘Significance' is a function of
the context and the ‘intensity' of the
action.”) (citing 40 C.F.R. § 1508.27).
have not yet shown that they conducted a ‘hard
look' to determine whether they had a duty to supplement
the 2001 SPEIS, or that the agency no longer uses the 2001
SPEIS to justify actions. See Nevada v. Dep't of
Energy, 457 F.3d 78, 93 (D.C. Cir. 2006) (recognizing