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Save Our Heritage Organization v. Gonzalez

February 4, 2008

SAVE OUR HERITAGE ORGANIZATION, ET AL. PLAINTIFFS,
v.
ALBERTO R. GONZALEZ, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE UNITED STATES, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge

MEMORANDUM OPINION

Now before the Court comes defendants' motion [3] to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Upon consideration of the motion, plaintiffs' opposition, the reply, the entire record herein, and relevant law, the Court finds that the motion to dismiss will be GRANTED.

I. BACKGROUND

A. Statutory Framework

In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), which among other reforms, required under section 102(a) that the Department of Homeland Security ("DHS") Secretary*fn1 (the "Secretary") "take such actions as may be necessary to install additional physical barriers and roads . . . in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States." Pub. L. No. 104-208, § 102(a), 110 Stat. 3009, 3009-554 (1996), codified at 8 U.S.C. § 1103 note: Improvement of Barriers at Border. IIRIRA section 102 also empowered the Secretary to waive the requirements of the Endangered Species Act of 1973 and the National Environmental Policy Act of 1969 upon making a determination that the waiver is "necessary to ensure expeditious construction of the barriers and roads under this section." Id. § 102(c).

The REAL ID Act of 2005 expanded the Secretary's waiver authority pursuant to IIRIRA section 102(c) such that "[n]otwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive all legal requirements" that the Secretary, in his "sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under this section." Pub. L. No. 109-13, § 102(c)(1), 119 Stat. 231,306 (2005), codified at 8 U.S.C. § 1103 note (emphasis added). The only claims permitted under the REAL ID Act's waiver provision are those "alleging a violation of the Constitution." Id. § 102(c)(2)(A). And, such challenges must be "filed not later than 60 days after the date" of the Secretary's waiver. Id. § 102(c)(2)(B).

The version of IIRIRA section 102(b) that was in effect prior to amendment by the Secure Fence Act of 2006 was titled "Construction of Fencing and Road Improvements in the Border Area Near San Diego, California." IIRIRA § 102(b). This provision mandated that in carrying out section 102(a), the DHS Secretary would provide for construction of fences and roads "along the 14 miles of the international land border of the United States, starting at the Pacific Ocean and extending eastward." Id. § 102(b)(1). This 14-mile stretch included fencing and roads along the border near San Diego that plaintiffs challenge here. The Secure Fence Act of 2006 revised IIRIRA section 102(b) while leaving section 102(a) intact. See Pub. L. No. 109-367, § 3, 120 Stat. 2638, 2638--39 (2006), codified at 8 U.S.C. § 1103 note. Section 102(b), as amended by the Secure Fence Act of 2006 is titled "Construction of Fencing and Road Improvements in Border Area." Id. This section instructs, "[i]n carrying out subsection (a) [of this note], the Secretary of Homeland Security shall provide for at least 2 layers of reinforced fencing" in five specified areas. Id. § 102(b)(1)(A). The amended section no longer references barriers along the border area near San Diego.

B. Underlying Case Background

Plaintiffs Save Our Heritage Organization and Friends of the U.S.--Mexico Border Environment filed suit in this Court seeking declaratory and injunctive relief halting the construction of two portions of physical barriers and roads along the U.S.--Mexico Border: a section near San Diego, California (the "San Diego Barrier"), and one near Yuma, Arizona (the "Yuma Barrier"). Regarding both the San Diego and Yuma Barriers, plaintiffs assert that the Government neglected to comply with several federal statutes and that DHS Secretary Michael Chertoff's waiver of those statutory requirements is unconstitutional. (See Am. Compl. ¶¶ 13--43; Pls.' Opp. at 10--11.) Plaintiffs further claim that, because of the Secure Fence Act's 2006 amendment to IIRIRA section 102(b), the construction of the San Diego Barrier is no longer authorized by statute. (Am. Compl. ¶¶ 46--49); see 8 U.S.C. § 1103 note (indicating that although the Yuma Barrier is listed among the five mandated areas, the San Diego Barrier is not included).

Defendants contend that plaintiffs have failed to state a claim for several reasons. First, the Government challenges plaintiffs' San Diego Barrier claim as untimely pursuant to the IIRIRA section 102(c)(2)(B) sixty-day limitation. (SeeDefs.' Mot. to Dismiss Mem. at 8--10.)

Additionally, the Government asserts that section 102(a) confers authority on the Secretary to construct barriers in the vicinity of the U.S.--Mexico border, including the San Diego Barrier, that are not explicitly mandated by section 102(b). (See Defs.' Reply at 2--6.) Regarding both barriers, defendants claim that the waiver provision contains the requisite "intelligible principle" and is not an impermissible delegation of power to the Executive Branch. (SeeDefs.' Mot. to Dismiss Mem. at 10--14.) Accordingly, the Government argues for the constitutionality of both (1) the Secretary's September 13, 2005 waiver of the requirements of eight federal statutes otherwise applicable to the construction of the San Diego Barrier and (2) the Secretary's January 19, 2007 waiver of the requirements of nine federal statutes otherwise applicable to the Yuma Barrier. See Notice of Determination, 72 Fed. Reg. 2535 (Jan. 19, 2007) (Yuma Barrier); Notice of Determination, 70 Fed. Reg. 55622 (Sept. 22, 2005) (San Diego Barrier).

II. ANALYSIS

A. Legal Standard

On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), this Court will dismiss a claim if the plaintiff fails to plead "enough facts to state a claim for relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007) (abrogating the prior standard which required appearance, beyond a doubt, that plaintiff can prove no set of facts in support of his claim that would entitle him to relief). This Court must construe the allegations and facts in the complaint in the light most favorable to the plaintiff and must grant the plaintiff the benefit of all inferences that can be derived from the facts alleged. Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004) (citing Kowal v. MCI Commc'ns Corp., 16 ...


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