IN RE BORDER INFRASTRUCTURE ENVIRONMENTAL LITI.

No. 18-55474, No. 18-55475, No. 18-55476.

915 F.3d 1213 (2019)

IN RE BORDER INFRASTRUCTURE ENVIRONMENTAL LITIGATION, Center for Biological Diversity, Plaintiff-Appellant, and Defenders of Wildlife, a Nonprofit Conservation Organization; Sierra Club, a Nonprofit Public Benefit Corporation; Animal Legal Defense Fund; People of the State of California, By and Through Xavier Becerra, Attorney General; California Coastal Commission, Plaintiffs, v. U.S. Department of Homeland Security; U.S. Customs and Border Protections; Kirstjen Nielsen, Secretary, in Her Official Capacity; Kevin K. McAleenan, Commissioner, in His Official Capacity, Defendants-Appellees. In re Border Infrastructure Environmental Litigation, Center for Biological Diversity; People of the State of California, By and Through Xavier Becerra, Attorney General; California Coastal Commission, Plaintiffs, and Defenders of Wildlife, a Nonprofit Conservation Organization; Sierra Club, a Nonprofit Public Benefit Corporation; Animal Legal Defense Fund, Plaintiffs-Appellants, v. U.S. Department of Homeland Security; U.S. Customs and Border Protections; Kirstjen Nielsen, Secretary, in Her Official Capacity; Kevin K. McAleenan, Commissioner, in His Official Capacity, Defendants-Appellees. In re Border Infrastructure Environmental Litigation, Center for Biological Diversity; Defenders of Wildlife, a Nonprofit Conservation Organization; Sierra Club, a Nonprofit Public Benefit Corporation; Animal Legal Defense Fund, Plaintiffs, and People of the State of California, By and Through Xavier Becerra, Attorney General; California Coastal Commission, Plaintiffs-Appellants, v. U.S. Department of Homeland Security; U.S. Customs and Border Protections; Kirstjen Nielsen, Secretary, in Her Official Capacity; Kevin K. McAleenan, Commissioner, in His Official Capacity, Defendants-Appellees.

United States Court of Appeals, Ninth Circuit.

Filed February 11, 2019.


Attorney(s) appearing for the Case

Noah Golden-Krasner (argued), Julia Forgie , Jessica B. Strobel , Baine P. Kerr , Janelle M. Smith , and John Applebaum , Deputy Attorneys General; David G. Alderson , Michael P. Cayaban , and Edward H. Ochoa , Supervising Deputy Attorneys General; Robert W. Byrne , Senior Assistant Attorney General; Xavier Becerra , Attorney General; Office of the Attorney General, Los Angeles, California; for Plaintiffs-Appellants People of the State of California and California Coastal Commission.

Brian Segee and John Peter Rose , Center for Biological Diversity, Los Angeles, California; Anchun Jean Su and Brendan Cummings , Center for Biological Diversity, Oakland, California; for Plaintiff-Appellant Center for Biological Diversity.

Anthony T. Eliseuson , Animal Legal Defense Fund, Chicago, Illinois; Sara K. Hanneken , Animal Legal Defense Fund, Portland, Oregon; for Plaintiff-Appellant Animal Legal Defense Fund.

Jason Rylander , Defenders of Wildlife, Washington, D.C., for Plaintiff-Appellant Defenders of Wildlife.

Gloria D. Smith , Sierra Club, Oakland, California, for Plaintiff-Appellant Sierra Club.

H. Thomas Byron III (argued), Courtney L. Dixon , and Benjamin M. Schultz , Appellate Staff; Adam L. Braverman , United States Attorney; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellees.

Dissent by Judge Callahan


OPINION

Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), the Secretary of the Department of Homeland Security ("DHS") has long had the authority "to install additional physical barriers and roads ... in the vicinity of the United States border ...." IIRIRA § 102(a)....

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