Whitewater Draw Natural Resource Conservation District v. Mayorkas, No. 20-55777 (9th Cir. 2021)
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The Ninth Circuit affirmed the district court's judgment in favor of the Secretary of the Department of Homeland Security (DHS) in an action brought by plaintiffs, alleging that the Secretary violated the National Environmental Policy Act (NEPA) by failing to consider the environmental impacts of various immigration programs and immigration-related policies. Plaintiffs, organizations and individuals, seek to reduce immigration into the United States because it causes population growth, which in turn, they claim, has a detrimental effect on the environment.
In regard to Count I, which challenged DHS's 2015 Instruction Manual, the panel concluded that the Manual does not constitute final agency action subject to the court's review under section 704 of the Administrative Procedure Act (APA). Therefore, the district court properly dismissed this count.
In regard to Count II, which asserted that DHS implemented eight programs that failed to comply with NEPA, the panel concluded that Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871 (1990), squarely foreclosed plaintiffs' request for judicial review of seven non-Deferred Action for Childhood Arrivals (DACA) programs. Therefore, the panel agreed with the district court that none of these programs are reviewable because they are not discrete agency actions.
In regard to Counts II, where plaintiffs challenged DACA, as well as Counts III-V, which facially challenged categorical exclusions (CATEXs), the panel concluded that plaintiffs lack Article III standing. In this case, the panel rejected plaintiffs' enticement theory and "more settled population" theory; plaintiffs made no attempt to tie CATEX A3 to any particular action by DHS; plaintiffs offered no evidence showing that population growth was a predictable effect of the DSO and STEM Rules, as well as the AC21 Rule; plaintiffs failed to show injury-in-fact or
causation concerning their challenge to the International Entrepreneur Rule; any cumulative effect analysis required by NEPA did not bear on whether plaintiffs had standing to challenge the rules; plaintiffs lacked Article III standing to challenge the sufficiency of the environmental assessments and findings of no significant impact issued in relation to President Obama's Response to the Influx of Unaccompanied Alien Children Across the Southwest border.
Court Description: Environmental Law / Immigration / Standing. The panel affirmed the district court’s judgment in favor of the Secretary of the Department of Homeland Security in an action brought by plaintiff organizations and individuals alleging that the Secretary violated the National Environmental Policy Act (“NEPA”) by failing to consider the environmental impacts of various immigration programs and immigration-related policies. * The Honorable Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. WHITEWATER DRAW V. MAYORKAS 3 Plaintiffs identify themselves as environmentalists, environmental groups, natural resource conservation groups, and cattle ranchers from Arizona, New Mexico, Colorado, and California. Count I of the First Amended Complaint challenged DHS’s 2015 Instruction Manual, which implements NEPA and Council of Environmental Quality (“CEQ”) regulations. Count II asserted that DHS implemented eight programs that failed to comply with NEPA. Count III alleged that DHS’s Categorical Exclusion A3 (“CATEX A3”) was arbitrary and capricious in violation of the Administrative Procedure Act. Count IV challenged DHS’s application of CATEX A3 to four DHS actions as contrary to NEPA and the APA. Count V challenged environmental assessments (“EA”) and findings of no significant impact (“FONSI”) issued by DHS in August 2014. Concerning Count I, the panel held that the Manual did not constitute “final agency action” subject to review under § 704 of the APA. Applying the two-part test in Bennett v. Spear, 520 U.S. 154 (1977), the panel held that the Manual did not meet the “consummation” first prong because it did not make any “decision,” rather it merely established the procedures for ensuring DHS’s compliance with NEPA. The panel held further that plaintiffs could not satisfy the “legal effect” second prong of the test because the Manual did not impose new legal requirements or alter the legal regime to which DHS was subject. The panel concluded that the district court properly dismissed Count I. Concerning Count II, wherein the plaintiffs alleged that DHS implemented seven programs in violation of NEPA, the panel agreed with the district court that none of these programs were reviewable because they were not discrete agency actions. Specifically, as to the seven non-Deferred 4 WHITEWATER DRAW V. MAYORKAS Action for Childhood Arrivals (“DACA”) programs, the panel held that Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990), squarely foreclosed plaintiffs’ request for judicial review, where plaintiffs’ challenge to the seven programs was indistinguishable from the broad programmatic attack at issue in National Wildlife. Concerning Count II (plaintiffs’ challenge to DACA) and III-V (plaintiffs’ facial challenge to CATEX A3), the panel considered whether plaintiffs lacked Article III standing. Plaintiffs could claim only procedural injury, and they alleged that compliance with NEPA was required and preparation of an environmental impact statement might have affected DHS’s decisions. To satisfy the injury-in-fact element for a procedural injury, the plaintiffs had to show that the procedures were designed to protect some threatened concrete interest that was the basis of their standing, and the reasonable probability of the challenged action’s threat to plaintiffs’ concrete interest. Plaintiffs alleged they had standing to challenge DACA because, by allowing individuals who entered the country illegally to remain with federal approval, DACA both added “more settled population” when it was implemented in 2012 and now enticed future unlawful entry. The panel rejected both theories. As to the enticement theory, the panel held that plaintiffs alleged no facts supporting their allegations that DACA caused illegal immigration. As to the “more settled population” theory, the panel held there was no redressability, and thus no standing, where DHS retained sole discretion over how to prioritize future removal proceedings. Concerning Count III and plaintiffs’ facial challenge to CATEX A3, the panel held that plaintiffs made no attempt to WHITEWATER DRAW V. MAYORKAS 5 tie CATEX A3 to any particular action by DHS, and this was insufficient to create Article III standing. Concerning Count IV, plaintiffs alleged that DHS’s application of CATEX A3 to the DSO Rule, the STEM Rule, the AC21 Rule, and International Entrepreneur Rules was improper because these rules contributed to immigration- induced population growth. The panel held that plaintiffs failed to show injury-in-fact or causation where they offered no evidence showing that population growth was a predictable effect of the DSO and STEM Rules. Similarly, the panel held that plaintiffs failed to show injury-in-fact or causation between the AC21 Rule and population growth where any increase in immigration that may result from the AC21 Rule would be a product of independent, third-party decisionmaking not fairly traceable to the AC21 Rule itself. The panel held that plaintiffs failed to show injury-in-fact or causation concerning their challenge to the International Entrepreneur Rule where they did not show that aliens admitted under the Rule permanently stayed in the United States because of the Rule. Finally, plaintiffs alleged they had standing to challenge all four rules because CEQ regulations required agencies to consider cumulative impacts on the environment. The panel held that any “cumulative effect” analysis required by NEPA did not bear on whether plaintiffs had standing to challenge the rules. Concerning Count V, the panel held that plaintiffs also lacked Article III standing to challenge the sufficiency of the EAs and FONSIs issued in relation to President Obama’s Response to the Influx of Unaccompanied Alien Children Across the Southwest border. 6 WHITEWATER DRAW V. MAYORKAS
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