Whitewater Draw Natural Resource Conservation District v. DHS

By Julie Axelrod on February 28, 2020

Summary

In October 2016, Julie Axelrod, now chief litigation counsel of the Center, and Lesley Blackner, an environmental lawyer in Florida, filed a landmark case, Whitewater Draw v. Johnson, against the Department of Homeland Security on behalf of nine plaintiffs, including individual environmentalists, environmental groups that object to endless population growth, southwest natural resource conservation groups, and members of the southwest cattle-ranching community. The claim was that the Department of Homeland Security (DHS), like the Immigration and Naturalization Service (INS) before it, has been violating and continues to violate our nation’s preeminent environmental law, the National Environmental Policy Act (NEPA), by completely failing to perform environmental analysis of its legal immigration and amnesty policies, which have directly led to the entrance and permanent settlement of tens of millions of foreign nationals to the United States.

Since it was signed into law in 1970 by President Richard Nixon, NEPA has required every agency considering an action that will affect the environment to analyze and publicize those effects before actually implementing the action. NEPA’s purpose is “to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment.” NEPA also intended to give ordinary members of the public the opportunity to voice their opinions on government actions that will affect their local communities. No exception applies to immigration-related actions, yet DHS carries on as if its many immigration programs are exempt from this law. NEPA also established the Council on Environmental Quality (CEQ) within the Executive Office of the President to ensure that all federal agencies meet their obligations under NEPA. In 2007, the CEQ published “A Citizen’s Guide to NEPA: Having Your Voice Heard”, which is still an excellent introduction to the purposes and processes of NEPA for members of the public. In 1978, CEQ adopted regulations mandating all agencies adopt procedures to implement NEPA. DHS, which was created as a new cabinet-level department in 2002, adopted its final NEPA procedures in 2014.​

Between 1990 and 2010, the U.S. population grew by over over 61 million people due to expansive legal immigration and amnesty policies — yet even over this intense period of immigration, DHS (and the INS before it) ignored NEPA’s requirement to conduct analysis on the environmental impacts of its policies. U.S. total population is expected to grow to almost 417 million by 2060 — 108 million more than in 2010. Immigration will account for about 80 percent of this population growth.

The environmental impacts of this immigration-driven population growth are undeniable. The case documents many of these effects, such as damage to air quality, increased urban sprawl, water pollution, exacerbated traffic congestion, loss of green space, wildlife habitat, forests and farmland, and other non renewable resources. In addition, because of the “pull effect” of our amnesty programs, massive illegal immigration across the southern border has also resulted in a host of unexamined environmental impacts, including the destruction through trampling of vegetation, garbage dumping on a massive scale, water pollution, and forest fires set by border-crossers.​

Pleadings

  1. Amended Complaint
    1. Exhibit Table of Contents
    2. Exhibit 1 - DHS Directive Number 023-01, Implementation of NEPA
    3. Exhibit 2 - DHS Instruction Manual 023-01-001-01, Revision 01, Implementation of NEPA
    4. Exhibit 3 - Affidavit of Jessica Vaughan
    5. Exhibit 4 - The Impact of Immigration on US Population Growth
    6. Exhibit 5 - The Environmental Impact of Immigration to the United States
    7. Exhibit 6 - Affidavit of Fred Davis
    8. Exhibit 7 - Affidavit of Peggy Davis
    9. Exhibit 8 - Affidavit of Richard D. Lamm
    10. Exhibit 9 - Affidavit of Don Rosenberg
    11. Exhibit 10 - Declaration of Claude Wiley
    12. Exhibit 11 - Affidavit of Ric Oberlink
    13. Exhibit 12 - Affidavit of Richard Schnieder
    14. Exhibit 13 - Affidavit of Stuart Hartley Hurlbert
    15. Exhibit 14 - Affidavit of Glen Colton
    16. Exhibit 15 - Affidavit of Caren Cowan
    17. Exhibit 16 - Affidavit of John Ladd
    18. Exhibit 17 - Affidavit of John Charles Oliver
    19. Exhibit 18 - Affidavit of Ralph D. Pope
    20. Exhibit 19 - Presidential Memorandum
    21. Exhibit 20 - Programmatic Environmental Assessment
    22. Exhibit 21 - Final Finding of No Significant Impact
  2. Plaintiffs' Opposition to Summary Judgment
  3. Defendant's Cross Motion for Summary Judgment
  4. Defendant's Reply in Support of Cross Motion for Summary Judgment
  5. Defendant's Reply to Opposition to Dismiss Counts I and II
  6. Plaintiffs' Memorandum in Support of Summary Judgment
  7. Order Granting Partial Motion to Dismiss
  8. Plaintiff's Opposition to Motion to Dismiss
  9. Defendant's Partial Motion to Dismiss

Claims

The amended complaint brought five claims (counts I-V) against the Department of Homeland Security. Count I challenged the NEPA procedures DHS adopted in 2014 because they fail to address the entry and settlement of foreign nationals, that is, immigration, into the United States, despite immigration being a major component of DHS’ statutory mission. The amended complaint alleged that a failure to address a major component of the agency’s mission with a substantial impact of the environment is “arbitrary and capricious.”

Count II challenged the adoption of eight particular programs without any environmental review: 1) employment-based immigration; 2) family based immigration; 3) long-term nonimmigrant visas; 4) parole; 5) TPS; 6) refugees; 7) asylum; and 8) DACA.

Count III challenged DHS’ improper adoption of an overbroad “categorical exclusion” in its NEPA procedures. Agencies use a “categorical exclusion” to avoid conducting environmental impact statements or environmental assessments at all when they take actions that belong to a type (or “category”) that by its nature has no significant impact on the environment. The DHS categorical exclusion that was challenged is a categorical exclusion for actions of a “strictly administrative or procedural nature.” DHS never explains what “strictly administrative or procedural” actually means, leaving open the possibility that DHS could declare any action it adopts to fit within the definition whether the action had a significant impact on the environment or not.

Count IV challenged DHS’ use of the above-mentioned categorical exclusion on four separate occasions when it adopted immigration-related regulations as arbitrary and capricious.

Count V challenged DHS’ environmental assessment of its 2014 response to the unaccompanied alien children (UAC crisis) on the southwest border for failing to consider any of the environmental impacts of immigration.

Plaintiffs

The plaintiffs included seven different organizations, as well as organization members, and two individuals.

Organizations

Whitewater Draw Natural Resource Conservation District ​

The Whitewater Draw Natural Resource Conservation District (“WWDNRCD”) is part of the state of Arizona’s Natural Resource Conservation District program that was established in response to the 1930’s dust bowl. The conservation district program promotes restoration and conservation of the state’s natural resources. As part of the conservation district program, WWDNRCD operates pursuant to Arizona Revised Statutes § 37, Chapter 6, and is governed by locally elected and appointed officials. The districts are charged with evaluating the conservation needs of their respective areas and partnering with local, state, and federal agencies to restore and conserve the landscapes and waters of their respective regions.

WWDNRCD’s statutory purpose is “to provide for the restoration and conservation of lands and soil resources of the state, the preservation of water rights and the control and prevention of soil erosion, and thereby to conserve natural resources, conserve wildlife, protect the tax base, protect public lands and protect and restore this state’s rivers and streams and associated riparian habitats, including fish and wildlife resources that are dependent on those habitats, and in such manner to protect and promote the public health, safety and general welfare of the people.” Ariz. Rev. Stat. Ann. § 37-1001 (2016). ​

Hereford Natural Resource Conservation District​

The Hereford Natural Resource Conservation District (“HNRCD”) is part of the state of Arizona’s Natural Resource Conservation District program that was established in response to the 1930’s dust bowl. The conservation district program promotes restoration and conservation of the state’s natural resources. As part of the conservation district program, HNRCD operates pursuant to Arizona Revised Statutes § 37, Chapter 6 and is governed by locally elected and appointed officials. The districts are charged with evaluating the conservation needs of their respective areas and partnering with local, state, and federal agencies to restore and conserve the landscapes and waters of their respective regions. HNRCD’s statutory purpose is “to provide for the restoration and conservation of lands and soil resources of the state, the preservation of water rights and the control and prevention of soil erosion, and thereby to conserve natural resources, conserve wildlife, protect the tax base, protect public lands and protect and restore this state’s rivers and streams and associated riparian habitats, including fish and wildlife resources that are dependent on those habitats, and in such manner to protect and promote the public health, safety and general welfare of the people.” Ariz. Rev. Stat. Ann. § 37-1001 (2016). ​

Arizona Association of Conservation Districts​ ​

The Arizona Association of Conservation Districts (“AACD”) is the state association of the Arizona Conservation Districts. The mission of the AACD is to support the conservation partnerships between the conservation districts and state and federal agencies, raise awareness of the activities of the conservation districts, and provide them with training and education. ​

Californians for Population Stabilization​ ​

Californians for Population Stabilization (“CAPS”) is a 501(c)(3), non-partisan, membership-based, public interest organization organized and existing under the laws of California. CAPS’s mission is to end policies and practices that cause human overpopulation and the resultant decline in Americans’ quality of life in California as well as in the United States. CAPS believes that unending human population growth causes environmental damage and overuse of nature’s bounty, leaving an impoverished Golden State. Unending population growth in California also strains local infrastructure. Further, it frays community institutions. Environmental impacts resulting from unending population growth include, but are not limited to: damage to air quality, increasing sprawl, increasing demand for water, increasing water pollution, increasing greenhouse gases and accelerating climate change, exacerbated traffic congestion, school overcrowding, loss of green space, farmland, forests and wildlife, and other non-renewable resources. CAPS has members and supporters in every state of the United States, with a majority residing throughout California. Because essentially all of California’s population growth presently stems from immigration and births to immigrants, CAPS’s priority goal is to reduce both legal and illegal immigration into California and the United States. ​

Scientists and Environmentalists for Population Stabilization​ ​

Scientists and Environmentalists for Population Stabilization (“SEPS”) is a small, informal, non-governmental organization run by scientists, but open to all. It currently has about 50 members throughout the United States. SEPS’s mission is to improve understanding within the U.S. scientific, educational, and environmental communities of the fact of overpopulation and its social, economic, and environmental consequences at both the national and global levels. SEPS advocates for U.S. population stabilization, followed by its gradual reduction to a sustainable level through humane, non-coercive means. SEPS also advocates for a gradual transition to ecological economics for our economic system. It chiefly advocates by operating exhibitor booths addressing population stabilization at the annual meetings of scientific societies; SEPS is usually the only U.S. organization of its kind at these meetings. ​

New Mexico Cattle Growers Association ​​

The New Mexico Cattle Growers Association (“NMCGA”) was established in 1914 to assist livestock producers in the State of New Mexico. Since that time, the Association has worked to ensure that the rights of livestock producers are protected. Over its 100-year history, the association has served the livestock industry faithfully. That tradition continues today. Today NMCGA has members in all 33 of New Mexico’s counties as well as some 19 other states. The purpose of the association is to advance and protect the cattle industry of New Mexico; work toward solutions of industry problems, promote the well-being of the industry; provide an official and united voice on issues of importance to the cattle producers and feeders; and create and maintain an economic climate that will provide members of the association the opportunity to obtain optimum return on their investment. ​

Floridians for Sustainable Population​ ​

Floridians for a Sustainable Population (“FSP”) was established as a not-for-profit in 1994 in an effort to educate Floridians about the necessity to stabilize Florida’s human population in order “to preserve and protect our natural resources and open spaces for future generations to enjoy.” FSP recognizes that immigration is now the engine driving population growth in both Florida and the entire United States. FSP operates a website and, among other things, commissioned a sprawl study in 2000 to coincide with Florida Overpopulation Awareness Week. In the years following that 2000 campaign, Florida’s population has continued to mushroom, from about 16 million to over 20 million. ​ ​​

Members

Organizations have what’s known as “standing” (i.e., sufficient connection to the harm alleged in the complaint to support the party’s participation in the case) on behalf of their individual members. Eleven individuals wrote standing affidavits on behalf of one or more of our plaintiff organizations. They included:

Fred Davis

Fred Davis owns and operate a 10,000-acre ranch 25 miles from the Arizona/Mexico border, 12 miles from the town of Tombstone, Ariz., where he has lived for 61 years. The ranch has been owned by his family since 1867, when his great-grandfather came to Arizona. Davis is chairman of WWDNRCD in Southeastern Arizona and a member of AACD. ​

Peggy Davis

Peggy Davis has lived on a 10,000-acre ranch, 25 miles from the Arizona/Mexico border and 12 miles from the town of Tombstone, Ariz., for 43 years. She is a clerk and education center director in Southeastern Arizona for WWDNRCD. In those roles, she plans workshops for local cooperators and students so that they may learn about the newest innovative methods of working on their property. She is also a member of the ACGA, Arizona Farm Bureau, Cochise County Sheriff’s Rancher’s Advisory Team, and a past-president of San Pedro Cattlewomen. ​

The Honorable Richard D. Lamm ​

The Honorable Richard D. Lamm, an attorney and certified public accountant, served as governor of Colorado from 1975 to 1987, and is a longtime member of CAPS. Governor Lamm has been a resident of Colorado since 1961. He is presently co-director of public policy at the University of Denver. ​

Don Rosenberg

Don Rosenberg is a 28-year resident of California. He is also the father of Drew Rosenberg, a 25-year-old law student who was hit and killed in 2010 by Roberto Gallo, a Honduran national who illegally entered the United States and subsequently received Temporary Protected Status under federal law, one of the federal actions at issue in this case. Rosenberg joined CAPS after his son was killed. ​

Claude Willey

Claude Willey has lived in California for 17 years in Orange County, Los Angeles, Altadena, and Pasadena. He moved to California in the fall of 1999 to go to graduate school at the University of California, Irvine, and received a master of fine arts in 2001. When in graduate school, he conducted field research on hydrology in the Mojave Desert. He is currently a lecturer in the Department of Urban Studies and Planning at California State University, Northridge, and in the Humanities and Sciences at Art Center College of Design in Pasadena. He has taught courses on: The Urban Scene; Growth and Sustainable Development of Cities; and Cities of the Third World. Willey is a member of CAPS. ​

Ric Oberlink

Ric Oberlink has lived in Berkeley, Calif., for almost 40 years. After finishing high school in 1971, he enlisted and served two years in the U.S. Army. He graduated from the University of Illinois with a major in political science and a minor in environmental studies. He then earned a J.D. at the UC-Berkeley School of Law where his studies included a clinical semester with the Sierra Club Legal Defense Fund. From 1981 to 1984 and from 1987 to 1992, he worked as an attorney at two general civil practice firms in Oakland, Calif. From 1984 to 1987, he spent much of his time traveling in Asia, Australia, and New Zealand. He is the executive director of CAPS. ​

Richard Alan Schneider

Richard Alan Schneider is the chairman of CAPS. He has lived for nearly 50 years in California, mostly in Oakland. Schneider, a conservationist and scientist, has spent thousands of hours fighting to protect open space in the Bay Area. He also belongs to the Sierra Club, Alameda Creek Alliance, Tri-Valley Conservancy, Save Mount Diablo, California Wilderness Coalition, League to Save Lake Tahoe, California Native Plant Society, California Wildlife Foundation, Blue Planet United, and NumbersUSA.

Dr. Stuart Hurlbert ​

Dr. Stuart Hurlbert is the president of SEPS and a longtime member of CAPS. He is an emeritus professor of ecology at San Diego State University (1970-2016), a fellow of the American Association for the Advancement of Science (1989-2016), the founding president of the International Society for Salt Lake Research (1994-1999), and a winner of scientific awards from the International Ecological Association, the American Statistical Association, and the U.S. National Academy of Sciences. He has been a member of the Sierra Club, off and on, since the 1960s, and has written numerous general articles and essays on population-environment relations. ​

Caren Cowan

Caren Cowan has been the executive director of NMCGA for 19 years. Cowan was reared on a commercial cattle ranch near Tombstone, Ariz. Her great-grandfather settled in Tombstone in 1881 and bought his first cow in 1884. Her family and extended family have been ranching in Cochise County, Ariz., since that time. Today, she and her sister still own a part of the ranch near Elfrida, Ariz., and Gleeson, Ariz., which they have leased to other ranchers in the area. Her nephew resides on the ranch, the fifth generation of her family to do so. ​

John W. Ladd ​

John W. Ladd owns a 16,400-acre ranch on the Arizona/Mexico border, near the town of Naco, Ariz., where he has lived for 61 years. The ranch has been owned by his family since it was homesteaded in 1896 by his mother’s grandparents. His primary life’s work is raising beef cattle on the ranch. He is a member and supervisor for HNRCD and also a member of ACGA, as well as a member of its border commission. He is also an advisor for the Graham/Cochise Cattle Growers, a member of Cochise Counties Planning Board which advises the County Supervisors on land use, a charter member of Cochise Conservation Recharge Network which develops projects to recharge and conserve water, and a charter member of Border Patrol Stakeholders. He is also an advisor for a new program, Restore Arizona, sponsored by the Bureau of Land Management and the Natural Resource Conservation Service with the goal of brush management statewide. ​

John ("Jack") Oliver ​

John (“Jack”) Oliver was director of FSP and has lived in South Florida for a total of 28 years. He has worked in the construction trade for 43 years as a skilled tradesman, an independent sub-contractor, a supervisor for a large drywall company, and a supervisor for a custom home builder. He volunteers his time with several nonprofit organizations. He served as a Scout Leader and instructor in Gallatin, Tenn., with the Boy Scouts of America for 10 years and was certified in rappelling, rock climbing, whitewater canoeing, and kayaking. He became active in our nation’s immigration debate after his family’s livelihood as a drywall tradesman had been decimated.

Individual Plaintiffs

We also have two individuals who submitted standing affidavits on their own behalf.

​Glen Colton​ ​

Glen Colton has lived in Fort Collins, Colo., for 38 years. When he moved to Fort Collins, the town had 65,000 residents and was surrounded by “wide open spaces”, and agricultural land. At that time Fort Collins was “an idyllic place to live, work, and raise a family.” Over the decades, however, the town’s population has soared to 160,000 today. Its population is expected to grow by another 80,000 over the next 10 to 15 years with no end to the growth in sight. Many of the agricultural areas and “wide open spaces” that used to surround the city are gone. The population of the surrounding region is “projected to nearly double” from 500,000 to one million people within 20 years, with no end in sight. Colton is negatively impacted by the endless surge of population growth which causes sprawl, degradation of the Poudre River, loss of nature and wildlife, increasing light and air pollution, and increasing traffic and congestion. ​

Ralph Pope ​

Ralph Pope is a retired natural resource management/ecologist for the U.S. Forest Service. Pope has lived in southeastern Arizona and southwestern New Mexico along the U.S./Mexico border for most of his life. Pope devoted his career to monitoring and trying to protect the Piloncillo, Chiricahua, and Dragoon Mountains, federal lands that make up the Douglas Ranger District. His job with the Forest Service entailed monitoring ecosystem health and livestock grazing operations on federal lands. Unfortunately, over the decades, Pope has personally witnessed the ecological degradation of unique native ecosystems located on hundreds of thousands of acres of once pristine and unspoiled lands. This degradation was caused by illegal border-crossings, whose destructive impacts include trampled native vegetation, garbage, polluted water, destroyed wilderness and fires that burn out of control.