State of California et al v. Trump et al

Filing 167

MOTION for Preliminary Injunction filed by State of California. Responses due by 10/10/2019. Replies due by 10/15/2019. (Attachments: # 1 Supplement Request for Judicial Notice, # 2 Declaration of Kevin B. Clark, # 3 Declaration of Nagano, # 4 Declaration of Dunn, # 5 Declaration of Vanderplank, # 6 Proposed Order, # 7 Certificate/Proof of Service)(Cayaban, Michael) (Filed on 5/29/2019) Modified on 5/30/2019 (cpS, COURT STAFF).

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XAVIER BECERRA
Attorney General of California
ROBERT W. BYRNE
SALLY MAGNANI
MICHAEL L. NEWMAN
Senior Assistant Attorneys General
MICHAEL P. CAYABAN
CHRISTINE CHUANG
EDWARD H. OCHOA
Supervising Deputy Attorneys General
HEATHER C. LESLIE
JANELLE M. SMITH
JAMES F. ZAHRADKA II
LEE I. SHERMAN (SBN 272271)
Deputy Attorneys General
300 S. Spring St., Suite 1702
Los Angeles, CA 90013
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Plaintiff State of California

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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STATE OF CALIFORNIA; STATE OF
COLORADO; STATE OF
CONNECTICUT; STATE OF
DELAWARE; STATE OF HAWAII;
STATE OF ILLINOIS; STATE OF
MAINE; STATE OF MARYLAND;
COMMONWEALTH OF
MASSACHUSETTS; ATTORNEY
GENERAL DANA NESSEL ON BEHALF
OF THE PEOPLE OF MICHIGAN;
STATE OF MINNESOTA; STATE OF
NEVADA; STATE OF NEW JERSEY;
STATE OF NEW MEXICO; STATE OF
NEW YORK; STATE OF OREGON;
STATE OF RHODE ISLAND; STATE OF
VERMONT; COMMONWEALTH OF
VIRGINIA; and STATE OF WISCONSIN;

4:19-cv-00872-HSG

DECLARATION OF SULA ELIZABETH
VANDERPLANK IN SUPPORT OF
MOTION FOR PRELIMINARY
INJUNCTION CONCERNING EL
CENTRO PROJECT 1

Decl. of Sula Elizabeth Vanderplank ISO Mot. for Preliminary Inj. Re. El Centro Project 1 (4:19-cv-00872-HSG)

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Plaintiffs,

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v.
DONALD J. TRUMP, in his official capacity
as President of the United States of America;
UNITED STATES OF AMERICA; U.S.
DEPARTMENT OF DEFENSE; PATRICK
M. SHANAHAN, in his official capacity as
Acting Secretary of Defense; MARK T.
ESPER, in his official capacity as Secretary of
the Army; RICHARD V. SPENCER, in his
official capacity as Secretary of the Navy;
HEATHER WILSON, in her official capacity
as Secretary of the Air Force; U.S.
DEPARTMENT OF THE TREASURY;
STEVEN T. MNUCHIN, in his official
capacity as Secretary of the Treasury; U.S.
DEPARTMENT OF THE INTERIOR;
DAVID BERNHARDT, in his official capacity
as Acting Secretary of the Interior; U.S.
DEPARTMENT OF HOMELAND
SECURITY; KIRSTJEN M. NIELSEN, in
her official capacity as Secretary of Homeland
Security;
Defendants.

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Decl. of Sula Elizabeth Vanderplank ISO Mot. for Preliminary Inj. Re. El Centro Project 1 (4:19-cv-00872-HSG)

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I, Sula Elizabeth Vanderplank, declare as follows:

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1.

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I have personal knowledge of the facts set forth in this declaration. If called as a

witness, I could and would testify competently to the matters set forth below.
2.

I am a postdoctoral fellow at the San Diego Zoo Global (SDZG), Institute for

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Conservation Research, and a freelance conservation scientist (Director of SUVA Research). San

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Diego Zoo Global has a focus on ending extinction worldwide. My postdoctoral position focuses

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on conservation of cross-border rare plants. I serve as adjunct faculty in the Biology Department

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of San Diego State University (SDSU) and at the Centro de Investigación Científica y Educación

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Superior de Ensenada (CICESE), a graduate school in Baja California, Mexico. I specialize in

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botany and conservation biology for the Southern California and Baja California regions,

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including the area along California’s border with Mexico, and I have published many articles on

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the subject. The matters set forth in this declaration are based upon my personal knowledge, as

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well as my expertise in the California border region.

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3.

In addition to my work with SDZG and CICESE, I hold research associate

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positions at prominent regional research centers including: San Diego Natural History Museum

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(SDNHM) since 2012; Rancho Santa Ana Botanic Garden (RSABG) since 2011; and Cabrillo

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Marine Aquarium (CMA) since 2015.

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4.

I am also the scientific advisor to a non-profit organization in northwest Baja

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California – Terra Peninsular AC and I serve on the board of the non-profit organizations:

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California Botanical Society, Southern California Botanists, Conservación de Fauna del Noroeste

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AC (FAUNO), and for the research network “Next Generation of Sonoran Desert Researchers.” I

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am also a rare plant botanist for the California Native Plant Society (Baja California Chapter).

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5.

I have a Ph.D. in Plant Ecology, with minors in Conservation Biology and

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Biogeography from the University of California, Riverside (2013) where my dissertation focused

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on correlates of plant diversity in northwestern Baja California. My current research projects as

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part of my postdoctoral fellowship at the SDZG focuses on evaluating the conservation status of

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rare plants in Baja California, Mexico, and in particular, on plant species that are rare on both

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sides of the U.S./Mexico border. Specifically, we are developing conservation seed banks for
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Decl. of Sula Elizabeth Vanderplank ISO Mot. for Preliminary Inj. Re. El Centro Project 1 (4:19-cv-00872-HSG)

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these plants, as well as taking samples for genetic research, and recording population data and
threats for each plant occurrence.
6.

In this declaration, I provide my professional opinions regarding the biological

impacts of the federal government’s border wall project at El Centro, California (herein El Centro
Project 1). El Centro Project 1 has the potential to inflict irreparable and irreversible impacts to at
least 23 plants of conservation concern, 13 of which are considered rare, threatened, or
endangered in California, and are eligible for state listing. The El Centro Project 1 area includes
near-pristine and fragile desert habitat that will be irreparably harmed by the Project.
7.

In developing my opinion about the biological impacts from El Centro Project 1, I

have relied on documentation provided in the February 25, 2019, memorandum regarding
“Request for Assistance Pursuant to 10 U.S.C. § 284” that the U.S. Department of Homeland
Security (DHS) directed to the U.S. Department of Defense (DOD), in which DHS requests
DOD’s assistance in constructing pedestrian fencing along approximately 218 miles of the U.S.Mexico border. This includes El Centro Project 1, in Imperial County, California, which involves
removing around 15 miles of vehicle barrier fencing and replacing it with pedestrian fencing that
will be 18 to 30 feet tall. El Centro Project 1 also includes construction of roads and installation
of lighting. In preparation for this declaration I have also reviewed the description of El Centro
Project 1, as outlined in the “Determination Pursuant to Section 102 of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, as Amended,” that DHS published in the
federal register (84 Fed. Reg. 21800). I also reviewed a description of the Project on DHS’s
website that stated the pedestrian fencing will be a bollard wall. (See
https://www.dhs.gov/news/2019/05/15/dhs-issues-waivers-expedite-border-wall-projects-tucsonand-el-centro).
8.

The construction and installation of pedestrian fencing as part of El Centro Project

1 will cause significant environmental impacts by likely harming and killing rare, threatened and
endangered plant species. Project activities include the construction of bollard fencing,
improvements to a patrol road that will run the length of the fencing, and installation of lighting.

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Construction activities are expected to include earthwork, excavation, fill, site preparation, and
installation and upkeep of physical barriers, roads, supporting elements, drainage, erosion
controls, and safety features. These activities will obliterate any plants and seeds found within
the footprint of the construction activities.
9.

In addition to the direct impacts to plant species of conservation concern, there are

likely to be serious secondary impacts from project construction such as soil compaction and the
spread of invasive species. Disturbance favors invasive plant species, which quickly dominate
and displace native plants. Many invasive species will reproduce vigorously and form a dense
monoculture that can completely change the ecology of a region (e.g., invasion by annual grasses
can enable fires to burn in desert ecosystems that have no adaptation to fire). Other likely
secondary impacts include considerable erosion, sedimentation and air quality issues related to
the earthwork, excavation and site preparation.
10.

The State of California has a rich history of geologic activity that has led to the

formation of significant topographic variation, which results in areas of very different climate, not
just at differing elevations, but on opposing sides of mountain ranges too, where a rain-shadow
often forms. The California borderlands are no exception, with strong climatic gradients from the
coast to the mountains and the eastern deserts beyond. Southern California borderlands (including
Imperial County) are particularly special biologically because they include the northernmost
range extensions of many of North America’s rarest plants.
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Specifically, El Centro Project 1 is almost entirely situated in a region of near-

pristine desert habitat and is home to a suite of rare plants (see table below). The area includes
the transition from granites to desert as the border enters the lowlands and Sonoran Desert areas
(where vehicular fencing is present).
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Notably, El Centro Project 1 includes part of the Jacumba Federal Wilderness area.

(See Exhibit A to this declaration, which is a true and correct copy of a map of the Jacumba
Wilderness Area from the U.S. Dept of the Interior, Bureau of Land Management). Wilderness
areas “are final holdout refuges for a long list of rare, threatened, and endangered species, forced

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to the edges by modern development. …..They are places where law mandates above all else
that wildness be retained for our current generation, and those who will follow.” See the US
Forest Service website for Managing the Land at https://www.fs.fed.us/managingland/wilderness. Federal Wilderness Areas have been protected under federal law since the
Wilderness Act of 1964 was enacted, “In order to assure that an increasing population,
accompanied by expanding settlement and growing mechanization, does not occupy and modify
all areas within the United States and its possessions, leaving no lands designated for
preservation and protection in their natural condition, it is hereby declared to be the policy of the
Congress to secure for the American people of present and future generations the benefits of an
enduring resource of wilderness.” The Jacumba Wilderness area was included in the National
Wilderness Preservation System in 1994, and encompasses 31,357 acres.
13.

A checklist of plants previously collected in the El Centro Project 1 region was

generated using data from the San Diego County Plant Atlas (which includes Imperial County in
its online resources). The checklist consists of a mere 54 different plant taxa (species and
subspecies) which have been documented. This is certainly an underestimate of true site diversity
and speaks to the lack of available data inside the project footprint. The borderlands are well
known to be home to a wealth of biodiversity. During a single weekend in March 2019, citizen
scientists documented 1,073 distinct plants and animals along the California/Mexico borderlands
during the Border Bioblitz, 805 of which were plants (https://www.inaturalist.org/projects/borderbioblitz-bioblitz-de-la-frontera-2019). Desert ecosystems are notoriously difficult to inventory
due to the high percentage of ephemeral species (approximately 30% or more) which are
generally invisible for the majority of the year and may not germinate in years of low rainfall. A
plant inventory has never been conducted in the El Centro Project 1 footprint, and a multi-season
inventory would be necessary to adequately assess the biological diversity of the project area.
14.

Imperial County is home to around 87 rare plants that are included in the

California Native Plant Society (CNPS) Rare Plant Rankings. This program develops current and
accurate information on the distribution and conservation status of California’s rare and

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endangered plants and since 1968 has been the standard for information on the rarity and
endangerment of the state flora. The program operates under a Memorandum of Understanding
(MOU) with the California Department of Fish and Wildlife (CDFW) and facilitates broad
cooperation in rare plant assessment and protection. The CNPS Rare Plant Botanist is housed at
the Sacramento office of the CDFW’s Biogeographic Data Branch and shares all data with the
California Natural Diversity Data Base (CNDDB). See:
http://www.cnps.org/cnps/rareplants/ranking.php. I describe the CNPS Rare Plant Rankings
below.
15.

California Rare Plant Rank 1B: Plants Rare, Threatened, or Endangered in

California and Elsewhere: Plants with a California Rare Plant Rank of 1B are rare throughout
their range with the majority of them endemic to California. Most of the plants that are ranked
1B have declined significantly over the last century.
16.

California Rare Plant Rank 2B: Plants Rare, Threatened, or Endangered in

California, But More Common Elsewhere: Except for being common beyond the boundaries of
California, plants with a California Rare Plant Rank of 2B would have been ranked 1B. From the
federal perspective, plants common in other states or countries are not eligible for consideration
under the provisions of the Federal Endangered Species Act.
17.

California Rare Plant Rank 3: Plants About Which More Information is Needed:

Plants with a California Rare Plant Rank of 3 are united by one common theme - we lack the
necessary information to assign them to one of the other ranks or to reject them. Nearly all of the
plants constituting California Rare Plant Rank 3 are taxonomically problematic.
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All of the plants constituting California Rare Plant Rank 1A, 1B, 2A, 2B, and 3 are

eligible for listing under the California Endangered Species Act (CESA).
19.

California Rare Plant Rank 4: Plants of Limited Distribution - A Watch List:

Plants with a California Rare Plant Rank of 4 are of limited distribution or infrequent throughout
a broader area in California, and their status should be monitored regularly. Few of the plants
constituting California Rare Plant Rank 4 are eligible for state listing. Nevertheless, many of

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them are significant locally. This is particularly significant for populations at the periphery of a
species' range, and areas where the taxon has sustained heavy losses, which are often applicable
in the U.S./Mexico border region.
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Each rare plant also receives a threat rank, follow its listing designation:
•

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degree and immediacy of threat)

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0.2-Moderately threatened in California (20-80% occurrences threatened / moderate
degree and immediacy of threat)

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0.1-Seriously threatened in California (over 80% of occurrences threatened / high

0.3-Not very threatened in California (less than 20% of occurrences threatened / low
degree and immediacy of threat or no current threats known)

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To assess impacts to plants of conservation concern due to El Centro Project 1, I

conducted a thorough review of relevant records, plant databases and studies. I also visited the El
Centro Project 1 project area twice in 2019, in March and May. During the second site visit I
took pictures in cardinal directions every half-mile along the border in the El Centro Project 1
area. Using these images I have generated a map of the Project area with multiple points where
photos were taken and high habitat quality was observed. I inserted a selection of these images
from along the border on top of aerial imagery of the El Centro Project 1 area, to show the
absence of development, construction and human impacts inside the Project area. This photo map
that I created is attached as Exhibit B to this declaration. The only significant human impact at
this time is the border patrol road that runs adjacent to the vehicle barrier.
22.

Based on my analysis and site visits, El Centro Project 1 will likely cause impacts

to plant species of conservation concern. These expected impacts are noted where plants have
been documented in proximity to the border and are expected within the Project footprint,
although conclusive data are not currently available because a comprehensive, seasonallyappropriate plant survey has not been conducted of the project site. In desert environments plants
are often only present during certain times of the year, where seeds remain in the soil and can be
expected to germinate and be impacted following heavy rains. (This is particularly probable for

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annual plants, which live for only one short season and whose precise locations are more difficult
to avoid once their habitats are disturbed). Many plants in the area survive harsh conditions as
seeds in the soil. The seeds are alive and although difficult to detect, are equally susceptible to
impacts from construction. These impacts are called direct impacts under the National
Environmental Policy Act (NEPA).

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Sensitive plants that live adjacent to the impact area, in fragile habitats that have a

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high likelihood to suffer from dust, soil erosion, particulate deposition, and/or landscape

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hydraulic alterations which may result from the installations, will also suffer indirect impacts.

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Sensitive plants in the project footprint are also likely to suffer edge effects from the disturbance

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and an increase in invasive species competing for resources. (Indirect Impacts under NEPA.)

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The following table highlights the rare and endangered plants found in the El

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Centro Project 1 site along areas of open border and vehicle fencing, including their CNPS

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rankings (lists and threat ranks as detailed above). The first column indicates whether the impacts

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are expected to be expected or indirect. All plants listed are also subject to cumulative impacts

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(as per NEPA) as a result of the repeat disturbances to this region.

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Notably the table includes 23 plants considered of conservation concern in California, 10 of

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which are expected to suffer direct impacts under NEPA, and 13 are expected to suffer indirect

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impacts.

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Status

Family

Genus

Species

Indirect

Euphorbiaceae

Euphorbia

platysperma

Indirect

Fabaceae

Acmispon

haydonii

Direct

Fabaceae

Lupinus

excubitus

medius

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Indirect

Fabaceae

Astragalus

insularis

harwoodii

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Indirect

Fabaceae

Astragalus

sabulonum

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Indirect

Apocynaceae

Matelea

parvifolia

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Indirect

Asteraceae

Malperia

tenuis

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InfraName

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CommonName
Flat-seeded
Spurge
Haydon's Lotus
Mountain
Springs Bush
Lupine
Harwood's
Rattleweed
Ground
Locoweed
Spearleaf,
Talayote
Brown Turbans

CNPS
1B.2
1B.3
1B.3
2B.2
2B.2
2B.3
2B.3

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Decl. of Sula Elizabeth Vanderplank ISO Mot. for Preliminary Inj. Re. El Centro Project 1 (4:19-cv-00872-HSG)

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Direct

Boraginaceae

Pholistoma

auritum

2

Direct

Fabaceae

Calliandra

eriophylla

Arizona Fiesta
Flower
Pink Fairyduster

3

Direct

Loasaceae

Eucnide

rupestris

Rock-Nettle

2B.3

Direct

Loasaceae

Mentzelia

hirsutissima

2B.3

Direct

Polemoniaceae

Ipomopsis

tenuifolia

Indirect

Burseraceae

Bursera

microphylla

Direct

Juncaceae

Juncus

acutus

Indirect

Apodanthaceae

Pilostyles

thurberi

Indirect

Boraginaceae

Johnstonella

costata

Indirect

Brassicaceae

Lyrocarpa

coulteri

Hairy Stick-Leaf
Slender-Leaf
Ipomopsis
Small-Leaf
Elephant Tree
Southwestern
Spiny Rush
Thurber's
Pilostyles
Ribbed
Johnstonella
Coulter's
Lyrepod
Wolf's Cholla

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arizonicum

leopoldii

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9
10

Direct

Cactaceae

Cylindropuntia

wolfii

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Indirect

Juncaceae

Juncus

cooperi

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Indirect

Martyniaceae

Proboscidea

althaeifolia

13

Direct

Nyctaginaceae

Mirabilis

tenuiloba

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Direct

Phrymaceae

Diplacus

aridus

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Direct

Ranunculaceae

Delphinium

parishii

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25.

subglobosum

Cooper's Rush
Desert Unicorn
Plant
Long-Lobe Four
O'Clock
Low bush
monkeyflower
Oceanblue
Larkspur

2B.3
2B.3

2B.3
2B.3
4.2
4.3
4.3
4.3
4.3
4.3
4.3
4.3
4.3
4.3

In conclusion, the El Centro Project 1 area includes at least 23 plants of

conservation concern in the state of California, including at least 3 plants on list 1B (plants that
are globally rare, threatened or endangered) and 10 plants on list 2B (plants that are rare,
threatened or endangered in California), for a total of 13 species eligible for listing under the
California Endangered Species Act, and 10 more plants on list 4 (plants of limited distribution).
The Project will undoubtedly have irreparable and irreversible impacts to numerous plants in the
near pristine desert of the El Centro Project area (See Exhibit B – photo map of the project area,
with a selection of photos taken along the Project area). El Centro Project 1 will have significant
impacts on the Federal Wilderness Area on the eastern edge of the Jacumba Wilderness. The
project will also impact numerous animals, including native mammals that were documented
during the 2019 bioblitz, and multiple species of conservation concern.
I declare under penalty of perjury under the laws of the United States that the foregoing is

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Decl. of Sula Elizabeth Vanderplank ISO Mot. for Preliminary Inj. Re. El Centro Project 1 (4:19-cv-00872-HSG)

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true and correct.
Executed on May 28, 2019, at San Diego, California.

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______

____________________________
Sula Elizabeth Vanderplank

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Decl. of Sula Elizabeth Vanderplank ISO Mot. for Preliminary Inj. Re. El Centro Project 1 (4:19-cv-00872-HSG)

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