Center for Biological Diversity v. Nielsen

          ORDER

          HONORABLE CINDY C. JORGENSON UNITED STATES DISTRICT JUDGE

         Introduction

         In this matter, Plaintiffs allege that Defendants^[1] 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).

         Specifically, 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)).

         Defendants 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.

         The NEPA Claim

         Discretionary 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 Cir. 2004)).

         The APA 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).

         Here, 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)).

         Plaintiffs 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.

         Further, 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.

         Defendants 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).

         Taking the Complaint as true, ^[2] 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).

         Defendants 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 ...