State of California et al v. Trump et al

Filing 176

MOTION for Partial Summary Judgment filed by State of California, State of New Mexico. Responses due by 6/19/2019. Replies due by 6/24/2019. (Attachments: # 1 Proposed Order Proposed Order Granting Plaintiff States of California and New Mexico's Motion for Partial Summary Judgment Regarding Sections 284, 8005, and 9002, # 2 Appendix Appendix of Declarations re Enviromental Harms in Support of Motion for Partial Summary Judgment Regarding Sections 284, 8005, and 9002, # 3 Plaintiff States of California and New Mexico's Request for Judicial Notice in Support of Motion for Partial Summary Judgment Regarding Sections 284, 8005, and 9002)(Sherman, Lee) (Filed on 6/12/2019) Modified on 6/13/2019 (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
BRIAN J. BILFORD
NOAH M. GOLDEN-KRASNER
SPARSH S. KHANDESHI
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 et al.;

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Plaintiffs, APPENDIX OF DECLARATIONS RE:
ENVIRONMENTAL HARMS IN
v.
SUPPORT OF MOTION FOR PARTIAL
SUMMARY JUDGMENT REGARDING
SECTIONS 284, 8005, AND 9002
DONALD J. TRUMP, in his official
capacity as President of the United States of Judge:
Honorable Haywood S. Gilliam,
America et al.;
Jr.
Trial Date:
None Set
Defendants. Action Filed: February 18, 2019

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Case No. 4:19-cv-00872-HSG

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Appendix of Declarations Re: Environmental Harms ISO Motion for Partial Summ. J. (4:19-cv-00872-HSG)

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DECLARATIONS CONCERNING ENVIRONMENTAL HARMS
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Exhibit Number

Declarant

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Kevin B. Clark (San Diego Natural History Museum)

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Dr. Kai Dunn (California Regional Water Quality Control Board,

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Colorado River Basin Region)

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Jesse R. Lasky (Pennsylvania State University)

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Christopher D. Nagano (Center for Biological Diversity)

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Eleanore Nestlerode (New Mexico State Lands Office)

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Myles B. Traphagen (Wildlands Network)

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Sula Elizabeth Vanderplank (San Diego Zoo Global)

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Sunalei Stewart (New Mexico State Lands Office)

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Appendix of Declarations Re: Environmental Harms ISO Motion for Partial Summ. J. (4:19-cv-00872-HSG)

EXHIBIT 1

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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;

DECLARATION OF KEVIN B. CLARK
IN SUPPORT OF MOTION FOR
PARTIAL SUMMARY JUDGMENT
REGARDING SECTIONS 284, 8005, AND
9002

Plaintiffs,

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4:19-cv-00872-HSG

v.

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Decl. of Kevin B. Clark ISO Mot. For Partial Summ. J. (4:19-cv-00872-HSG)

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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 Kevin B. Clark ISO Mot. For Partial Summ. J. (4:19-cv-00872-HSG)

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I, Kevin B. Clark, declare as follows:

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

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

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executed a declaration dated May 28, 2019 in support of the Plaintiff State of California’s

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Preliminary Injunction Concerning El Centro Project 1 that was substantively the same as this

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declaration.

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2.

I am the Director of BioServices for the San Diego Natural History Museum, a

position I have held since 2014.
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I have over twenty-five years of biological experience, including conducting surveys

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for a wide range of endangered species. I hold permits with the state and federal governments to

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nest search, monitor, and band rare and endangered passerines, shorebirds, and seabirds. I hold

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federal and state permits to survey and nest monitor endangered species such as the Southwestern

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Willow Flycatcher, Western Snowy Plover, Least Bell’s Vireo, California Gnatcatcher, and

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California Least Tern. I am also permitted to mist-net, handle, and band migratory birds.

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4.

I have conducted biological surveys throughout the U.S., Mexico, and Costa Rica,

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from bird banding in bottomland hardwood forests of Louisiana to mammal, bird, and reptile

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studies in the Sierra Nevada of California. I co-authored a book on the extinction of the Imperial

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Woodpecker that took me throughout tropical and montane habitats of northwestern Mexico. I

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have a Bachelor of Science degree from the University of California, Berkeley, and a Master of

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Science Degree in Ecology from Arizona State University. My thesis research involved the

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effects of habitat fragmentation on birds, mammals, and reptiles. My research analyzed

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landscape influences on biological communities and trophic level relationships of extirpated and

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persisting species. This research found that smaller habitat fragments supported fewer species of

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animals, and even common species in pre-fragmented landscapes could be extirpated once

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fragmentation occurred. In 2011, this research was published in the Journal of the Arizona-

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Nevada Academy of Sciences.

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5.

From 2000-2006, I was a Fish and Wildlife Biologist with the U.S. Fish and

Wildlife Service (“U.S. FWS” or “Service”), based in Carlsbad, California. In this capacity, I
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Decl. of Kevin B. Clark ISO Mot. For Partial Summ. J. (4:19-cv-00872-HSG)

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worked on the recovery of endangered species, including the California Gnatcatcher and

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California Least Tern, and was the regional recovery coordinator for the threatened Western

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Snowy Plover. I was the primary author of the 2003 designation of critical habitat for the

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California Gnatcatcher, which included a proposed rulemaking reclassifying the species as a

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Distinct Population Segment under the Endangered Species Act (68 Fed. Reg. 20228). As part of

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this analysis, I thoroughly reviewed all the pertinent literature and survey information for the

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species, conducted field surveys for the bird and its habitat requirements, and analyzed and

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finalized maps describing the range of the species and its essential habitat locations. In my

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capacity as a Fish and Wildlife Biologist I also participated in consultations required under

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Section 7 of the Endangered Species Act, which are required whenever a federal project may

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impact threatened or endangered species.

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Subsequent to my employment at the U.S. FWS, I founded my own company,

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Clark Biological Services, to conduct focused surveys and conservation-based research on

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endangered species in Southern California. I possess authorized take permits from both federal

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and state wildlife agencies to conduct surveys and monitoring of the California Gnatcatcher. I

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authored numerous reports on the results of California Gnatcatcher surveys and monitoring,

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generally for large landowners in southern California such as the Department of Defense. After I

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founded my own conservation firm, I joined the San Diego Natural History Museum as the

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Director of BioServices, and in this capacity I coordinate the contracting within the science

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departments with various clients requiring applied ecological research, typically for large

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agencies and institutions. I also currently serve on the recovery teams of the endangered Masked

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Bobwhite Quail (Colinus virginianus ridgwayi) and the Sonoran pronghorn (Antilocapra

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americana sonoriensis), both convened by the U.S. FWS.

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I have analyzed the border-infrastructure projects outlined in the February 25,

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2019, memorandum regarding “Request for Assistance Pursuant to 10 U.S.C. § 284” that the U.S.

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Department of Homeland Security (“DHS”) directed to the U.S. Department of Defense

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(“DOD”), in which DHS requests DOD’s assistance in constructing pedestrian fencing along

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approximately 218 miles of the U.S.- Mexico border. DHS has identified eleven separate projects
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Decl. of Kevin B. Clark ISO Mot. For Partial Summ. J. (4:19-cv-00872-HSG)

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for border areas located in California, Arizona and New Mexico (“Section 284 Projects”).
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One of the Section 284 Projects, El Centro Project 1, is located in Imperial County,

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California, and involves removing approximately 15 miles of vehicle barrier fencing and

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replacing it with pedestrian fencing that will be 18 to 30 feet tall. El Centro Project 1 also

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includes construction of roads and installation of lighting. I have also reviewed the description of

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El Centro Project 1, as outlined in the “Determination Pursuant to Section 102 of the Illegal

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Immigration Reform and Immigrant Responsibility Act of 1996, as Amended,” that DHS

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published in the federal register (84 Fed. Reg. 21800).

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DHS has not provided detailed information regarding El Centro Project 1. It is

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presumed that the project will be similar to recently completed border wall projects in other

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portions of the California border, and will include a new bollard wall from 18 to 30 feet high,

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construction of a 20-foot wide all-weather road, and assorted temporary roads for access to the

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work sites. As with any construction project of this scale, it is assumed that extensive areas for

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equipment staging and materials storage will also be required in the vicinity of the project area at

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the border.

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10.

I have considerable experience in evaluating the impacts caused by similar border

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infrastructure projects. From 2011-2012, my company was hired to perform biological

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monitoring of the construction along the primary and secondary border fences from Bunker Hill

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(about a mile east of the Pacific Ocean) to the coast. My observations of the amount of area

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needed for staging equipment and materials, constructing roads for access to construction areas,

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and cut and fill activities during construction are directly relevant to the current proposal.

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In this declaration, I provide several examples specific to the El Centro Project 1

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site, and to the border region more generally, to illustrate how El Centro Project 1 will cause

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irreparable harm to wildlife.

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Multiple peer-reviewed scientific studies have found that a variety of wildlife,

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ranging from mountain lions (Puma concolor) to bighorn sheep (Ovis canadensis) as well as

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ground dwelling non-migratory birds, are negatively affected by border fences disrupting their

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movement patterns. In disrupting movement, these barriers can reduce or restrict events such as

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juvenile and adult dispersal, as well as genetic interchange between populations.

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The American Society of Mammalogists, a professional, scientific, and

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educational society consisting of nearly 3,000 members, passed a resolution in June 2017

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opposing the construction of border infrastructure due to its well-documented negative effects on

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a variety of mammal species, many of them declining or endangered. The resolution calls upon

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the Federal Government to ensure that all boundary infrastructure, both existing and proposed,

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include features and modifications to maintain landscape permeability for mammalian

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populations to permit demographic and genetic exchange necessary for well-distributed, viable

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populations and the long-term persistence of species and mammalian community structure.

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According to the resolution, the actions of DHS on the US-Mexico border must receive regular

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environmental review to identify, monitor, and mitigate significant threats to the persistence of

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mammalian populations under the National Environmental Policy Act (“NEPA”) and the US

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Endangered Species Act. In addition, the Southwestern Association of Naturalists (“SWAN”)

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passed a similar resolution in July 2017 opposing the construction of a border wall. SWAN is an

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international association of scientists, educators, and students founded in 1953 to promote the

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field study of plants and animals in the southwestern United States, Mexico, and Central America.

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Their resolution states, “. . . wall construction will irreparably harm many species and some of the

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Southwest’s most significant lands . . .THEREFORE BE IT RESOLVED that the Southwestern

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Association of Naturalists (SWAN) calls upon the Governors of all the border states (those of the

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U.S. and of Mexico), the U.S. Secretary of the Interior, the Secretaria de Medio Ambiente y

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Recursos Naturales (SEMARNAT) of Mexico, the Director of the U.S. Fish and Wildlife Service,

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and the Secretary for Homeland Security to immediately stop all plans for construction of the

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proposed border wall based on the potential negative impacts of the wall to native plants and

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wildlife and to mitigate the current negative impacts of the existing fence.”

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14.

El Centro Project 1 will harm multiple species of lizards, birds and mammals.

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Within the proposed project area, numerous species such as bighorn sheep, mountain lion, and

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bobcat (Lynx rufus) would be negatively affected. Immediately to the west of the project area, the
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Peninsular bighorn sheep has been recorded moving back and forth across the border, allowing

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for genetic interchange between populations based in the U.S. and Mexico. The Peninsular

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bighorn sheep is identified as “endangered” under both the Endangered Species Act and the

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California Endangered Species Act. Over 11,000 acres in the Jacumba Mountains, immediately

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north of the international border, are designated critical habitat for the sheep because, “the

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Jacumba Mountains represent the only area of habitat connecting the DPS [Distinct Population

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Segment] listed in the United States with other bighorn sheep populations that occupy the

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Peninsular Ranges in Mexico.” (74 Fed. Reg. 17318). The California Department of Fish and

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Wildlife has tracked collared sheep in this area for many years, and documented intensive use of

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the slopes immediately above and to the west of the western terminus of the project area. These

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slopes are lamb-rearing habitat, and pregnant ewes would be adversely affected by construction

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activities and border patrol actions immediately below them. For instance, the intensive ground

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disturbances due to road construction and trenching in the project area, as well as the

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establishment of extensive lighting in the area would introduce continuous disruption in an area

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that is currently a remote, undisturbed habitat area for the sheep. Were bighorn sheep to abandon

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these slopes due to the increased disturbance level from the project, it is unclear if suitable high-

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quality lamb rearing habitat remains in the area to support this unique population that represents

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the sole connection to sheep populations south of the border. The California Department of Fish

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and Wildlife states in their 2018 annual report on sheep monitoring in the area: “The Jacumba

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ewe group typically spends each winter and spring within the Jacumba Wilderness in the United

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States and each summer and fall within a canyon just north of Highway 2 in Mexico.” (Colby, J.

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& Botta, R. 2018. CDFW 2017-18 Peninsular bighorn sheep annual report; Page 7). They further

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state: “The Jacumba ewe group is dependent on resources both within the US and Mexico. A

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fence along the US-Mexico border would prohibit movement to, and use of, prelambing and

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lamb-rearing habitat and summer water sources. Furthermore, lamb-rearing habitat in the east

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Jacumba Mountains is not within USFWS- designated critical sheep habitat and further

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development of energy projects within or adjacent to these areas, combined with disturbance by

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border security activities, will have significant adverse impacts on this ewe group.” (Page 24)
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15.

In addition to the Peninsular Bighorn Sheep, numerous rare species occur in the

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project area and would be harmed or killed by the extensive trenching, construction of roads, and

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staging of materials necessary to construct the proposed border fence. These include:

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Flat-tailed Horned Lizard (CA State Species of Special Concern)

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Colorado Desert Fringe-toed Lizard (CA State Species of Special Concern)

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Loggerhead shrike (CA State Species of Special Concern)

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LeConte’s Thrasher (CA State Species of Special Concern)

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Townsend’s big-eared bat (CA State Species of Special Concern)

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Pallid bat (CA State Species of Special Concern)
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California Leaf-nosed bat (CA State Species of Special Concern)

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Western Yellow bat (CA State Species of Special Concern)

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Western mastiff bat (CA State Species of Special Concern)

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Pocketed free-tailed bat (CA State Species of Special Concern)

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Big free-tailed bat (CA State Species of Special Concern)

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Pallid San Diego pocket mouse (CA State Species of Special Concern)

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Palm Springs pocket mouse (CA State Species of Special Concern)

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In my experience, if environmental review under NEPA had not been waived, the USFWS

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would consider and address potential impacts to these state listed species as part of its review of

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the project during the NEPA process.

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The flat-tailed horned lizard (Phrynosoma mcallii) is found in a restricted area of low

desert habitat in southeastern California, including the project site, and also in southwestern
Arizona, and adjacent Mexico. This lizard was proposed by the U.S. Fish and Wildlife Service for
listing as a threatened species under the Endangered Species Act. On March 15, 2011, this
proposal was withdrawn by the Service, which determined that the species did not need the
protection of the Act, in part due to ongoing conservation efforts such as the establishment of a
Rangewide Management Strategy. Thus, were it not for the anticipated conservation efforts under

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Decl. of Kevin B. Clark ISO Mot. For Partial Summ. J. (4:19-cv-00872-HSG)

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the Rangewide Management Strategy, the flat-tailed lizard would be listed as a threatened species

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under the Endangered Species Act. It is currently considered a California Species of Special

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Concern. The Rangewide Management Strategy is an interagency document that provides

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guidance for conservation and management of sufficient habitat to maintain populations of flat-

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tailed horned lizards within each of five Management Areas in perpetuity. The flat-tailed horned

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lizard is typically found in sandy flats and dunes that often support sparse desert vegetation. This

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lizard is a specialized predator of ants, and has declined throughout its range due to habitat

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fragmentation and degradation from agricultural development, urbanization, and off-road vehicle

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use. For much of the year it stays concealed in underground burrows, emerging during warmer

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months to forage for prey.
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The Rangewide Management Strategy focuses conservation efforts on five

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Management Areas, including the Yuha Desert Management Area, in which the El Centro Project

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1 footprint occurs. The population within the Yuha Desert Management Area is naturally

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connected to populations to the south in Mexico, and provides a genetic linkage with

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Management Areas to the north. The El Centro Project 1 occurs across the entire southern

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boundary of this population, and if these lizards cannot cross this barrier, there would be a new

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genetic break in the species range.

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The flat-tailed horned lizard occurs within the project footprint and surrounding

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area. The extensive trenching, construction of roads, and staging of materials proposed in this

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area will harm or kill lizards that are either active or in underground burrows within the project

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footprint. Additionally, the principal predators of these lizards include small birds of prey that

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use perches to hunt. By constructing a continuous fence, 18-30 feet high, as well as numerous

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light poles, over the entire southern boundary of the Yuha Desert Management Area, this project

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will greatly increase the predation rate of lizards adjacent to the wall, and in combination with

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permanent roads and infrastructure removing suitable habitat, will effectively sever the linkage

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that currently exists between populations on both sides of the border.

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The project also proposes to install lighting along the 15-mile construction area.

The frequency and intensity of lighting is not specified, but is likely to be extensive to
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accommodate border patrol-related activities. Currently, this portion of the California desert is

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composed of natural habitats and has limited artificial lighting. Artificial night lighting can have

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myriad negative effects on animals and plants. Artificial night lighting can reduce movement and

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restrict the effectiveness of corridors for nocturnal mammals, including medium and large

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predators, as well as the sensitive rodent species that likely occur within the project area. Night

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lighting can also attract and disorient migrating birds, leading to their death, and has also been

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correlated with declines in nocturnal reptiles in Southern California. The artificial night lighting

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associated with the El Centro Project 1 will significantly degrade the natural habitats adjacent to

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the project area for the entire 15-mile extent of the project, causing harm to a variety of sensitive

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species inhabiting the area.

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I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct.
Executed on June 9, 2019, at San Diego, California.

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____________
Kevin B. Clark

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EXHIBIT 2

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I, Dr. Kai Dunn, declare as follows:

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1.

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I have personal knowledge of each fact stated in this declaration, and if called as

witness could competently testify thereto.
2.

I am a Senior Water Resources Control Engineer and Chief of the "NPDES I

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Stormwater I 401 Water Quality Certification Unit" for the California Regional Water Quality

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Control Board, Colorado River Basin Region (Colorado River Basin Water Board). I have served

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as the Chief of this unit since 2014 and been employed by the Colorado River Basin Water Board

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as a senior engineer since 2007.

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3.

As the Chief of the NPDES I Stormwater I 401 Water Quality Certification Unit, I am

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responsible for drafting National Pollutant Discharge Elimination System (NPDES) permits for

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wastewater and storm water discharges to surface waters within the Colorado River Basin Region

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that are issued by the Colorado River Basin Water Board, as well as water quality certifications

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under Section 401 of the Clean Water Act. I am a California registered civil engineer and hold a

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doctorate degree in environmental engineering from the University of Southern California.

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4.

The federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.) (commonly

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referred to as the "Clean Water Act") and the California Porter-Cologne Water Quality Control

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Act (Cal. Wat. Code sec. 13000 et seq.) authorize the California State Water Resources Control

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Board (State Water Board) and the nine Regional Water Quality Control Boards (regional water

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boards) to regulate and protect water quality in California, including by establishing beneficial

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uses and water quality standards and policies (collectively, "water quality standards") for surface

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waters within California and by implementing water quality control laws, regulations, and

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policies through permits and other orders to ensure compliance with the standards.

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5.

Each regional water board-including the Colorado River Basin Water Board-is

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required to prepare a water quality control plan ("basin plan") setting forth the water quality

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objectives for all surface waters and groundwaters within the region. Cal. Wat. Code§ 13241

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(Regional Board establishes water quality objectives as "in its judgment will ensure the

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reasonable protection of beneficial uses"); see generally§§ 13220-13228.15. "Beneficial uses" of

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water refers to the resources, services, and qualities they support or could support, e.g., drinking,
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boating, critical habitat, etc. Cal. Wat. Code§§ 13050(f), 13240. Water quality objectives ensure

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water quality is adequate to support designated beneficial uses for each water body. Cal. Wat.

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Code § 13050(h).

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6.

The Water Quality Control Plan for the Colorado River Basin Region (Basin Plan),

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adopted by the Colorado River Basin Water Board, contains the legal, technical, and

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programmatic bases of water quality regulation in the Board's region. Cal. Wat. Code§ 13240;

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33 U.S.C. § 1313. The Colorado River Basin Water Board's mission is to preserve, enhance, and

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restore the quality of California's water resources and drinking water for the protection of the

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environment, public health, and all beneficial uses for the benefit of present and future

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generations. The Basin Plan is designed to preserve and enhance water quality in the region and

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to protect the beneficial uses of all regional waters. A copy of the current Basin Plan is available

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on the Colorado River Basin Water Board's website at

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https ://www.waterboards.ca. gov/coloradoriver/water issues/programs/basin planning/. The

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Basin Plan has been approved by the State Water Board and has the full force and effect of

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regulation. Cal. Code Regs., tit. 23, § 3960 et seq; Cal. Gov Code § 11353.

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7.

The Colorado River Basin Water Board protects the water quality of water bodies

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within the Colorado River Basin Region, including the New River, Alamo River, Imperial Valley

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agricultural drains, washes and ephemeral streams that drain into and serve as to tributaries to the

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New River and Alamo River, the All-American Canal, and the Salton Sea, all of which are

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located near California's border with Mexico. These surface waters generally constitute

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jurisdictional waters of the United States under the Clean Water Act and are also waters of the

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state under the California Porter-Cologne Water Quality Control Act. 33 U.S.C. § 1362; Cal.

23

Wat. Code § 13050(e).

24

8.

The Colorado River Basin Water Board implements the water quality objectives

25

contained in the Basin Plan through the issuance of several different types of permits and other

26

orders and certifications to protect water quality. See, e.g., Cal. Wat. Code§ 13263 (waste

27

discharge requirements "shall implement any relevant water quality control plans that have been

28

adopted, shall take into consideration the beneficial uses to be protected, the water quality
2
Deel. of Dr. Kai Dunn (4: 19-cv-00872-HSG)

1

objectives reasonably required for that purpose ... "; 33 U.S.C. § 1342 (federal Clean Water Act

2

permits must conform to state water quality standards). In addition to the traditional NPDES

3

permits for domestic, municipal, and industrial wastewater discharges to surface waters (under

4

Clean Water Act Section 402), the Water Boards issue NPDES permits to address storm water

5

runoff from construction activities that may result in discharges into the jurisdictional waters of

6

the United States. Pursuant to section 313 of the Clean Water Act (33 U.S.C. § 1323) federal

7

agencies and departments are required to comply with the requirements of California's NPDES

8

permitting program.

9

9.

The Colorado River Basin Water Board also issues water quality certifications under

10

Section 401 of the Clean Water Act for projects that involve the discharge of dredged or fill

11

material into waters of the United States, including rivers and streams and wetlands. Under

12

Section 401, every applicant for a federal permit or license for any activity that may result in a

13

discharge to jurisdictional waters must obtain a water quality certification from the appropriate

14

Water Board demonstrating that the proposed activity will comply with state water quality

15

standards and with any other appropriate requirement of state law. The federal permit, such as a

16

permit issued by the United States Army Corps of Engineers under Clean Water Act Section 404,

17

allowing a party to dredge and fill within or near a water body, cannot be issued unless the state

18

grants or waives certification. 33 U.S.C. §§ 1341, 1344; Cal. Wat. Code§§ 13260, 13376.

19

10.

A Section 401 water quality certification ensures that the project complies with water

20

quality objectives for waters impacted by the project, and that the project will not harm or impair

21

the waters' beneficial uses as defined by the Colorado River Basin Plan. Water quality

22

certifications typically include requirements for implementing best management practices (BMPs)

23

that the project proponent must follow in order to minimize the project's impacts on water

24

quality. BMPs are scheduling of activities, prohibitions of practices, maintenance procedures,

25

and other management practices to prevent or reduce the discharge of pollutants to waters of the

26

United States. BMPs also include treatment requirements, operating procedures, and practice to

27

control site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material

28

storage.
3
Deel. ofDr. Kai Dunn (4:19-cv-00872-HSG)

1

11.

The Colorado River Basin Water Board's NPDES / Stormwater / Section 401 Water

2

Quality Certification Unit has reviewed and processed several applications for Section 401 water

3

quality certifications submitted to the Board by federal agencies for projects within the Colorado

4

River Basin Region. These have included applications submitted by the United States Bureau of

5

Reclamation, the United States Army Corps of Engineers, and United States Customs and Border

6

Protection. See, e.g., the Section 401 Water Quality Certifications contained at:

7

<https ://www.waterboards.ca. gov/coloradoriver/water_ issues/programs/401 _certification/>.

8
9

12.

Exhibit 3 to Plaintiffs Request for Judicial Notice is a Water Quality Certification

Order issued in response to United States Customs and Border Protection's (CBP) 2013

10

application for a Section 401 water quality certification. I have reviewed the Water Quality

11

Certification Order and CBP's application for certification. CBP sought to construct a 1.6 mile

12

road, known as the West Desert All-Weather Road project, along the United States-Mexico

13

border in an area west of the Calexico Port of Entry. The order reflects that CBP needed a

14

Section 401 water quality certification and federal permits from the Army Corps of Engineers

15

because the project would involve dredge and fill activities within or next to the Pinto Wash, an

16

ephemeral stream that drains into the New River. The Pinto Wash is described under the heading

17

"Receiving Water":

18
19
20
21
22

Pinto Wash is located north of the project area in the Salton Sea Watershed west of
the Westside Main Canal and between the U.S./Mexico border and California State
Route 98. Water may flow through this ephemeral wash into the Westside Main
Canal, which eventually delivers water into the Salton Sea, or into delivery canals and
through agricultural fields into drains and then into washes that flow to the New River
and eventually into the Salton Sea.
(RJN Ex. 3, p. 7.)
13.

The Colorado River Basin Water Board's Section 401 Water Quality Certification

23
Order, which granted CBP certification subject to specified conditions, also noted that the West

24
Desert All-Weather Road project would traverse six ephemeral washes that are waters of the
25
United States through use of concrete low-water crossings, reinforce concrete pipes, or box
26
culverts. (See RJN Ex. 3, page 7.) In documents attached to CBP's application for certification,
27
CBP acknowledged that the six unnamed ephemeral washes constitute waters of the United

28
4
Deel. of Dr. Kai Dunn (4: l 9-cv-00872-HSG)

1

States. The order also specified the exact location of the West Desert All-Weather Road project

2

using GPS coordinates. (See RJN Ex. 3, page 7.)

3

14.

I have reviewed a February 25, 2019 memorandum from the Executive Secretary of

4

Department of Homeland Security and addressed to the Executive Secretary of the Department of

5

Defense. (Doc. 59-4, RJN Ex. 33.) Page 3 of the memorandum describes El Centro Project 1, a

6

proposed project to replace 15 miles of vehicle barriers location with pedestrian fencing. The

7

memorandum also specifies the exact location of the El Centro Project 1 using GPS coordinates.

8

(Doc. 59-4, RJN Ex. 33, p. 3.)

9

15.

I also reviewed a Determination Pursuant to Section of 102 of the Illegal Immigration

10

Reform and Immigrant Responsibility Act ("waiver") pertaining to the El Centro Project 1. 84

11

Fed. Reg. 21800 (May 15, 2019). The waiver states the project will involve for the construction

12

of barriers 18 to 30 feet high, roads and lighting.

13

16.

Exhibit A to this declaration fairly depicts the location of both the El Centro Project

14

1 and the West Desert All-Weather Road Project based on the GPS coordinates specified in RJN

15

Exhibit 3 and the February 25, 2019 memorandum by the Department of Homeland Security.

16

The location of the El Centro Project 1 is the segment of the border between points 1 and 4. The

17

location of the West Desert All-Weather Road Project is the segment of the border between points

18

2 and 3. This necessarily means that the El Centro Project 1 will occur within or near the Pinto

19

Wash and will traverse at least six ephemeral washes that have been identified as waters of the

20

United States as described in the Colorado River Basin Water Board's 2013 Water Quality

21

Certification Order (RJN Ex. 3) granting the CBP a Section 401 water quality certification.

22

17.

I am generally familiar with the steel bollard style fencing that has been constructed

23

by CBP over the past year near the Calexico Port of Entry and understand that the construction of

24

similar fencing is proposed for El Centro Project 1. The construction of these types of barriers

25

necessarily involves the use of heavy equipment, excavation and digging. Similarly, the

26

construction of roadways near the border barriers necessarily require grading and significant soil

27

disturbances.

28

5
Deel. of Dr. Kai Dunn (4:19-cv-00872-HSG)

1

2

18.

The El Centro Project 1 will traverse several ephemeral washes that have been

3

identified as waters of the United States. The eastern portion of the El Centro Project 1 will also

4

occur in areas near agricultural canals that drain into waters of the United States. As with the

5

West Desert All Weather Road project, a smaller project constructed in the same area, the El

6

Centro Project 1 could not proceed without a Section 404 dredge and fill permit issued by the

7

United States Army Corps of Engineers, which would in tum compel Section 401 water quality

8

certification by the unit that I manage.

9

19. Due to the nature and location of construction, the El Centro Project 1 would also

10

require enrollment in the State Water Board's statewide NP DES Construction General Permit, 1

11

which permit is enforced by the Colorado River Basin Water Board in the region. The proposed

12

construction poses a high risk for storm water rurt-off impacting on water quality during the

13

construction phase and post-construction maintenance. Among other things, the Construction

14

General Permit requires the preparation and implementation of a Storm Water Pollution

15

Prevention Plan (SWPPP) to ensure construction and post-construction activities do not adversely

16

impact water quality. The permit requires a risk assessment of pollutants being discharged to

17

surface waters and that the SWPPP include a description of: (a) the specific project activities that

18

threaten water quality (i.e., characterization of potential sources of storm water pollution and their

19

pollutants); and (b) specific best management practices and other measures that will be

20

implemented by the project proponent for project-specific activities during construction to

21

prevent and minimize adverse water quality impacts.

22

20.

The authority of the State and Regional Water Boards under the NPDES permitting

23

program and the Section 401 water quality certification program are necessary to ensure that

24

projects within the Colorado River Basin Region are constructed in a way that is consistent with

25

the state's water quality objectives and in a way that protects the beneficial uses for affected

26

water bodies. Without such permitting authority, the Colorado River Basin Water Board and

27

1 National Pollutant Discharge Elimination System (NPDES) General Permit for Storm
Water Discharges Associated with Construction and Land Disturbance Activities, State Water
Board Order No. 2009-0009-DWQ, NPDES No. CAS000002 (as amended).

28

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Deel. of Dr. Kai Dunn (4:19-cv-00872-HSG)

1

other Water Boards lose critical tools for implementing applicable water quality objectives and

2

enforcing California water quality laws.

3

4

I declare under penalty of perjury that the foregoing is true and correct and that this
declaration was executed on June 7, 2019, in Palm Desert, California.

5
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7
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25

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Deel. ofDr. Kai Dunn (4:19-cv-00872-HSG)

EXHIBIT A

3

4

Point 1: El Centro Project 1 Start Coordinate
o 32.63273, -115.922787 (February 25, 2019 DHS Request for DOD Assistance)
Point 2: CBP’s West Desert All-Weather Road Impacting the Pinto Wash Start Coordinate
o N32° 38.89518, W115° 43.52994 (August 24, 2013 CBP Application to the California State Water Resources Control
Board)
Point 3: CBP’s West Desert All-Weather Road Impacting the Pinto Wash End Coordinate
o N32° 38.96544, W115° 42.1974 (August 24, 2013 CBP Application to the California State Water Resources Control
Board)
Point 4: El Centro Project 1 End Coordinate
o 32.652563, -115.662399 (February 25, 2019 DHS Request for DOD Assistance)

Legend

1

2

Exhibit A: Location of CBP’s Previous Pinto Wash Project in Relation to the Proposed El Centro Project 1

EXHIBIT 3

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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

13
IN THE UNITED STATES DISTRICT COURT
14
FOR THE NORTHERN DISTRICT OF CALIFORNIA
15
OAKLAND DIVISION
16
17
18
19
20
21
22
23
24
25
26
27

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 JESSE R. LASKY
IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT

Plaintiffs,

28
Declaration of Jesse R. Lasky ISO

(4:19-cv-00872-HSG)

1
v.
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3
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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.

1

I, JESSE R. LASKY, declare as follows:

2

1.

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

3

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

4

executed a declaration dated April 4, 2019 in support of the Plaintiff States’ Preliminary

5

Injunction concerning El Paso Project 1 that was substantively the same as this declaration.
2.

6

I have been an Assistant Professor of Biology at Pennsylvania State University

7

since 2015. I obtained an A.B. from Kenyon College and a Ph.D. from the University of Texas at

8

Austin. I was subsequently an Earth Institute Fellow at Columbia University and was awarded the

9

American Society of Naturalists Young Investigator Award in 2015. My scientific background is

10

in spatial ecology and evolution, including biogeography, animal dispersal, and conservation

11

biology. I have published over 40 peer reviewed papers, many in prestigious journals such as

12

Science and Proceedings of the National Academies of Sciences. I have previously published

13

peer-reviewed research in the journal Diversity and Distributions on the potential impacts to

14

animal conservation of barriers along the USA-Mexico border1.

15

3.

Major construction projects, border infrastructure, and physical barriers pose a

16

number of threats to wildlife. These threats range from short-term rapid destruction of animal

17

habitat and populations to longer-term threats of extinction. My research in this field has been

18

primarily focused on investigating the potential impacts of border barriers and associated

19

infrastructure on wildlife.

20

4.

In addressing Defendants’ proposed “El Paso Project 1” border wall construction

21

project (“Project”), I begin with a brief overview of the conceptual background for conservation

22

implications of border barriers and associated infrastructure. I then discuss the consequential

23

environmental impacts stemming from the proposed Project.

24

5.

Immediate, short-term threats of border barrier construction come partly from their

25

inevitable disturbance and destruction of natural habitats for wildlife. Much of the USA-Mexico

26

border runs through wilderness and natural habitats for diverse wildlife, including the proposed

27
28

1

Jesse R. Lasky et al., Conservation biogeography of the US–Mexico border: a transcontinental
risk assessment of barriers to animal dispersal, 17 Diversity & Distributions 673, 687 (2011).
1
Declaration of Jesse R. Lasky ISO

(4:19-cv-00872-HSG)

1

Project region. To construct major barriers, such as a pedestrian fence, roads must be built and

2

maintained, often across uneven terrain. As a result, wide swathes of natural vegetation and

3

habitat for wildlife are destroyed. The rapid construction of roads over uneven terrain often

4

results in dramatic erosion, destroying additional vegetation in a dry region with sensitive

5

vegetation. Animal populations inhabiting these areas will be destroyed or displaced, either due to

6

injury from construction equipment or the destruction of their habitat. The long-term presence of

7

extensive bright lighting for border patrol and vegetation-free areas along border wall corridors

8

will also drive away many species of animals from these areas.

9

6.

Border barriers pose an additional immediate threat to populations of large animals

10

that must move long distances to satisfy their needs for food, water, and mates, species which

11

would have no ability to fit through small openings between bollards. If populations of these

12

animals are blocked from foraging for food, water, and mates at the border, the result will likely

13

be death, reduced fertility, and population decline. Examples of such species in the area of the

14

proposed Project include Cougar, Bobcat, Mule and White-tailed Deer, Collared Peccary

15

(Javelina), American Badger, and Gray Fox. Although these species are not in danger of global

16

extinction, they play vital roles in their ecosystems. The addition of border barriers threatens their

17

populations and hence ecosystems in the border region.

18

7.

There are multiple species of large mammal in the region of the proposed Project

19

whose populations are already officially threatened. Jaguar is considered Endangered by the US

20

Fish and Wildlife Service. Jaguars were formerly widespread in the southwest US, but were

21

extirpated by hunting. In recent decades, small numbers of individuals have dispersed north from

22

breeding populations in northern Mexico. Some of these jaguars have recently reached mountains

23

in southwestern New Mexico west of Luna county. If further long-term recolonization of jaguars

24

continues, areas in Doña Ana and Luna counties include suitable habitat. Construction of the

25

proposed Project would stop jaguar movement through the region, potentially limiting

26

recolonization. The Mexican wolf is also considered Endangered by US FWS. It was once widely

27

distributed across northwest Mexico and the southwest US. Today the species is limited to

28

mountains straddling the Arizona-New Mexico borders with some recent small reintroductions in
2
Declaration of Jesse R. Lasky ISO

(4:19-cv-00872-HSG)

1

Mexico. Doña Ana and Luna counties as well as the locations across the border in Mexico contain

2

suitable habitat for Mexican wolf. The long-term recolonization and repopulation of the region

3

would be limited by border barriers in the region.
8.

4

Border barriers stop animal dispersal and thus also pose long term threats of

5

extinction and population decline. There are two primary long-term threats of barriers. First,

6

reduced dispersal prevents the recolonization of appropriate habitat following local population

7

extinctions, which can lead to extinction of a whole metapopulation and the species. To explain:

8

many species exist as metapopulations, which are collections of individual separate populations

9

distributed across a landscape. These individual populations may disappear from time to time,

10

perhaps due to a local disease epidemic or myriad other forces. But animal dispersal across a

11

landscape allows these populations to be re-founded by individuals from surviving populations. If

12

dispersal is prevented at the border, this process stops, and can lead the entire set of populations

13

to go extinct over the long term. Second, preventing dispersal causes an erosion of genetic

14

diversity within populations. If border barriers isolate animal populations on either side, the

15

individual populations on a given side will lose genetic diversity over time. A loss of genetic

16

diversity makes populations more vulnerable to extinction because it limits their ability to adapt

17

to new diseases and changing environments, because deleterious mutations accumulate, and

18

because inbreeding often reduces fitness.
9.

19

The height of the proposed Project’s wall and lighting pose major problems for the

20

movement of birds and bats. Although these animals have the ability to fly over barriers, many

21

small birds and bats avoid flying high in order to avoid predators (e.g. hawks and owls). The

22

bollards of the proposed Project, at 30 feet high, would pose major barriers to many of these

23

species. For example, researchers found that Ferruginous Pygmy-Owls (a transboundary species)

24

in northern Sonora did not typically fly higher than 13 feet, and flights above vegetation were

25

extremely rare2. Similarly, many birds and bats active at night avoid clearings with bright lights.

26
27
28

10.

Species with small ranges are particularly vulnerable to extinction due to the

2

Aaron D. Flesch et al., Potential Effects of the United States-Mexico Border Fence on Wildlife,
24 Conservation Biology 171, 181 (2009).
3
Declaration of Jesse R. Lasky ISO

(4:19-cv-00872-HSG)

1

various threats above. If animal movement is stopped by the border, then the species ranges will

2

be effectively independent on either side, and the species’ vulnerability to extinction will be

3

determined by the size of the larger remaining sub-range (US or Mexican). I measured the larger

4

portion of the species range for each amphibian, reptile, and non-volant mammal on either side of

5

the border. The proposed Project intersects the range of 17 species whose largest remaining sub-

6

range is less than 500,000 km2, a relatively small size associated with greater risk of extinction.

7

These species include three species whose largest remaining sub-range is less than 100,000 km2,

8

an even more threatening situation: Desert Pocket Gopher, New Mexico Whiptail, and Texas

9

Lyre Snake.

10

11.

There are a large number of species potentially impacted by these barriers. This

11

region is one of the most biodiverse in the United States. This is particularly true of non-volant

12

terrestrial vertebrate species such as amphibians, reptiles, and non-flying mammals that are most

13

likely to be impacted by barriers to movement. Reptiles and mammal species of the borderlands

14

in particular reach peak diversity in this region. I found that the new barriers of the proposed

15

Project intersect the ranges of 53 non-volant mammal, 38 reptile, and 10 amphibian species.

16

12.

The proposed Project runs directly through habitat and populations of Ornate Box

17

Turtle and the Desert Pocket Gopher, both of which are considered Near Threatened by the

18

International Union for Conservation of Nature (“IUCN”). Additionally, the project intersects the

19

range of the Banner-tailed Kangaroo Rat, which is considered Near Threatened by the IUCN and

20

individuals of which have been recently recorded in this region.

21

13.

In Luna and Doña Ana counties, the locations of El Paso Project 1, there are 87

22

species of animals considered by the State of New Mexico to be Endangered, Endemic, Sensitive

23

taxa, Species of Greatest Conservation Need, or Threatened. These designations signal that these

24

species are potentially threatened by new major activities that destroy their habitat or limit their

25

dispersal. Thus the proposed Project poses an important threat to these species.

26

14.

There are at least two plant species, both cactus, considered by the State of New

27

Mexico to be Endangered that are also found in the habitat surrounding El Paso Project 1:

28

Nightblooming Cereus and Dune Pricklypear. This designation signals that these already
4
Declaration of Jesse R. Lasky IS Mot for

(4:19-cv-00872-HSG)

1

imperiled species are severely threatened by habitat destruction and erosion that will be caused by

2

border wall construction and associated activities.

3

15.

In summary, the location of the proposed Project contains many species of wildlife

4

potentially impacted by the Project. Many of these species are already under major threats of

5

extinction and extirpation, thus the Project has the potential to do major damage to biodiversity

6

and ecosystems in the region.

7
8
9

I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct.
Executed on June 9, 2019, at State College, Pennsylvania.

10
11
12
13
14
15
____________________________________
JESSE R. LASKY

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Declaration of Jesse R. Lasky ISO

(4:19-cv-00872-HSG)

EXHIBIT 4

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7
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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

12
IN THE UNITED STATES DISTRICT COURT
13
FOR THE NORTHERN DISTRICT OF CALIFORNIA
14
OAKLAND DIVISION
15
16
17
18
19
20
21
22
23
24
25

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;
Plaintiffs,

26
27

DECLARATION OF CHRISTOPHER D.
NAGANO IN SUPPORT OF

v.

28
Declaration of Christopher D. Nagano ISO

(4:19-cv-00872-HSG)

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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.

1
2

I, Christopher D. Nagano, declare as follows:
1.

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

3

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

4

that reflect an opinion, they reflect my personal opinion and judgment on the matter. I previously

5

executed a declaration dated May 23, 2019 in support of the the Plaintiff State of California’s

6

Preliminary Injunction concerning El Centro Project 1 that was substantively the same as the El

7

Centro Project 1 portion of this declaration. I also previously executed a declaration dated April

8

3, 2019 in support of the Plaintiff States’ Preliminary Injunction concerning the El Paso Project 1

9

that was substantively the same as the El Paso Project 1 portion of this declaration.

10

BACKGROUND

11

2.

I reside in Washougal, Washington.

12

3.

I am a staff member of the Center for Biological Diversity, where I have served as

13

a senior scientist in the Center’s Endangered Species Program since 2017. At the Center, I work

14

to protect imperiled species, particularly reptiles and invertebrates. I work in conjunction with

15

campaigners, lawyers, policy experts and other scientists to achieve this goal.

16

4.

Prior to coming to the Center, I worked for 27 years, from 1989 to 2016, as an

17

endangered species entomologist/ecologist, endangered species biologist, Endangered Species

18

Division Chief, and Deputy Assistant Field Supervisor with the U.S. Fish and Wildlife Service

19

(“FWS”) based at the field offices in Carlsbad and Sacramento, California, and Albuquerque,

20

New Mexico. I also performed endangered species-related tasks and responsibilities in five other

21

states.

22

5.

Prior to working for the FWS, I worked for several years in the mid-late 1980s as a

23

research associate in the Entomology Section at the Natural History Museum of Los Angeles

24

County.

25

6.

I have a Master of Environmental Studies degree from the Yale School of Forestry

26

and Environmental Studies. While pursuing this degree, I was an intern working on endangered

27

species issues at the Environmental Defense Fund in Washington, D.C. for Michael J. Bean, now

28

retired Deputy Assistant Secretary for Fish, Wildlife and Parks at the Department of Interior.
1

1
2
3

7.

In sum, I have dedicated my career to the scientific research and protection of

endangered and threatened species.
8.

During my career with the FWS, I routinely reviewed projects proposed by

4

federal, state and local agencies, and non-governmental parties for their potential effects on non-

5

listed wildlife, plants, and their habitats pursuant to the National Environmental Policy Act

6

(“NEPA”), and the California Environmental Quality Act (“CEQA”). My efforts involved

7

assessments of project impacts on non-listed wildlife and plants, and their habitats, as well as

8

review of the proposed mitigations and development of additional measures, if appropriate.

9

9.

I also have an extensive working knowledge of endangered species. During my

10

27-year career with the FWS, I conducted hundreds of informal consultations and many dozens of

11

formal consultations pursuant to the Endangered Species Act with many federal agencies ranging

12

from the Bureau of Reclamation to the National Park Service. These consultations involved

13

providing guidance to federal agencies in determining whether and to what extent their proposed

14

projects would have an effect on the survival and recovery in the wild of endangered species and

15

whether and to what extent federal agencies’ proposed projects would adversely modify or

16

destroy the endangered species’ critical habitat.

17

10.

While at FWS, one of the issues that I focused on, analyzed, and encouraged other

18

agencies to first avoid, and if not possible, to mitigate, was the effect of barriers, such as

19

highways and roadways, on the long-term movement of listed animals and wildlife. The ability

20

of many animals to move to new areas, areas containing habitat within their range, or between

21

portions of their home range is critical for ensuring they do not become extinct or extirpated

22

because it prevents genetic inbreeding and other biological and ecological problems.

23

11.

Another issue that I focused on at the FWS was the indirect adverse effects of a

24

project on listed animals and wildlife. Indirect effects, which are caused by the proposed project

25

but occur later in time, are often not adequately analyzed by federal agencies, but their impact on

26

listed species and other wildlife can be far greater and much longer lasting than the direct effects

27

of a project.

28
2

1
2

EL CENTRO PROJECT 1
12.

The Department of Defense (“DOD”) and the Department of Homeland Security

3

(“DHS”) have failed to consider the effects of their El Centro Project 1 proposed border wall

4

project. (DHS, DHS Issues Waiver to Expedite Border Wall Projects in California (May 15,

5

2019) available at https://www.dhs.gov/news/2019/05/15/dhs-issues-waiver-expedite-border-

6

wall-projects-california.) Through El Centro Project 1, DOD will undertake road construction,

7

replace approximately 15 miles of existing vehicle barrier with new pedestrian fencing, and

8

install lighting beginning approximately 10 miles west of the Calexico Port of Entry continuing

9

west 15.25 miles in Imperial County. (DHS Letter to DOD, Request for Assistance Pursuant to

10

10 U.S.C. § 284 (February 25, 2019), page 3). El Centro Project 1 will have significant effects

11

on endangered species such as the peninsular bighorn sheep (Ovis canadensis nelsoni) and on

12

State of California Species of Concern such as the flat-tailed horned lizard (Phrynosoma mccallii)

13

and burrowing owl (Athene cunicularia).

14

13.

From decades of work with endangered and threatened species, as well as

15

experience dealing with imperiled mammals, especially while I was stationed at the FWS

16

Carlsbad and Sacramento field offices, I recognize the threat the construction, maintenance, and

17

associated operations of the El Centro Project 1 border wall pose to the peninsular bighorn sheep.

18

The proposed construction of the border wall and associated activities in Imperial County likely

19

will have a number of adverse effects on this endangered species. Peninsular bighorn sheep will

20

be directly harmed, harassed, or possibly in some circumstances, injured or killed, by the

21

construction of the El Centro Project 1 border wall. In particular, road construction; grading and

22

construction of equipment storage and parking areas; and off road movement of vehicle and

23

equipment involved in construction that will alter the normal behavior of peninsular bighorn

24

sheep. Further DOD, DHS, Customs and Border Protection (“CBP”), and construction/

25

maintenance vehicles may collide with peninsular bighorn sheep. However, the most significant

26

effect on the endangered peninsular bighorn sheep will be the permanent reduction of its north-

27

south movement across the U.S./Mexico border. The physical barrier of the El Centro Project 1

28
3

1

border wall will prevent such movement and peninsular bighorn sheep will further avoid the area

2

because of night lighting, noise, and DOD, DHS, and CBP personnel and vehicles.

3

14.

The peninsular bighorn sheep has been documented to move across lowlands

4

between desert mountain ranges, such as areas possessing similar geographic features as where

5

the El Centro Project 1 is proposed. The FWS described how peninsular bighorn sheep utilize flat

6

areas such as the El Centro Project 1, such as valley floors and washes, to access resources like

7

water, forage, and lambing habitat, and these areas also are important for enabling gene flow

8

between subpopulations (FWS. 2011. Peninsular bighorn sheep (Ovis canadensis nelsoni). 5-

9

year review. Summary and Evaluation. Carlsbad Field Office, Carlsbad, California).

10

15.

El Centro Project 1 will replace 15 miles of existing vehicle fencing, which

11

animals can still cross through, with a pedestrian wall that will prohibit border crossing of species

12

such as the peninsular bighorn sheep. The previously constructed portions of the pedestrian wall

13

in San Diego County are a barrier that this endangered animal simply cannot pass through, under,

14

or over. Along with the previously constructed sections of the border wall, El Centro Project 1

15

will continue to impair the ability of the peninsular bighorn sheep to move between the two

16

nations.

17

16.

The FWS recovery plan for the peninsular bighorn sheep stated that low

18

survivorship of adult peninsular bighorn sheep threatens population viability. It included the

19

recovery action that mortality should be reduced by "Prohibit fences in which bighorn sheep may

20

become entangled or strangled, or that interrupt habitat connectivity or block movement of

21

bighorn sheep within remaining habitat (emphasis in recovery plan) ... All other fences should

22

comply with Bureau of Land Management specifications for fences within bighorn sheep habitat

23

(Bureau of Land Management 1989)." (Recovery Action 1.3.1.1 on Page 91 in FWS. 2000.

24

Recovery Plan for Bighorn Sheep in the Peninsular Ranges, California. U.S. Fish and Wildlife

25

Service, Sacramento, California.)

26

17.

The unimpeded movement of the peninsular bighorn sheep between the United

27

States and Mexico is important for increasing and maintaining their genetic diversity. As the

28

number of animals that move between these two countries declines or ceases, the species will
4

1

begin to suffer the deleterious effects of inbreeding and reduced genetic diversity including

2

physical malformities, behavioral problems, reduced ability to successfully reproduce and

3

produce viable offspring, greater susceptibility to disease, and reduced ability to survive adverse

4

environmental conditions, such as extremely cold winters or hot summers. The combined direct

5

and indirect effects of a border wall will be additional pressures on the survival and recovery in

6

the wild of this endangered species.

7

18.

There will be irreparable harm to the peninsular bighorn sheep without proper

8

NEPA review and the completion of section 7 consultation by these federal agencies as required

9

by the Endangered Species Act.

10

19.

The proposed border wall will also harm other species that are not federally

11

recognized as endangered or threatened but are State of California Species of Special Concern

12

such as the flat-tailed horned lizard and the burrowing owl. Given the lack of adequate

13

environmental review of El Centro Project 1, the full extent of irreparable harm currently is

14

unknown. However, significant irreparable harm will likely occur. The border wall construction

15

and associated activities such as DHS and CBP vehicle traffic, road building and maintenance,

16

horseback and quad patrols, night lighting, and other associated law enforcement and border wall

17

maintenance activities could permanently alter the geography, impact native vegetation and plant

18

communities, especially by improving habitat conditions for invasive weeds, and adversely

19

impact the existing natural ecosystems.

20

20.

The earth moving and associated disturbance caused by border wall construction

21

will create habitat for invasive exotic plants and weeds that outcompete and replace native plants.

22

These exotic species initiate a downward spiral of increasingly destructive effects to native plants,

23

and native animals dependent on the native vegetation for food and the predators that feed on

24

them. The seeds of exotic weeds from other areas are easily transported within dried mud or dirt

25

on construction equipment, or unintentionally by DHS and CBP cars, trucks, horse trailers, quads,

26

and the hooves and fur of their patrol horses.

27
28

21.

The flat-tailed horned lizard, which has the smallest range of all horned lizard

species, inhabits both sides of the United States-Mexico border from southeastern California,
5

1

extreme southwestern Arizona, in the United States and northeaster Baja California and

2

northwestern Sonora, Mexico. There are many documented observations of this reptile in the El

3

Centro Project 1 area.

4

22.

NatureServe, the publically accessible and highly reputable internet database of the

5

status of animals and plants, ranks the flat-tailed horned lizard as vulnerable to extinction on a

6

global level, and imperiled on a national and state level in Arizona and California.

7

23.

The threats from the El Centro Project 1 border wall to the flat-tailed horned lizard

8

include direct effects such as death or injury from construction operations. The flat-tailed horned

9

lizard would fall into trenches or other holes associated construction operations and then dye of

10

exposure or by being buried alive. The flat-tailed horned lizard may also be run over by vehicles

11

associated with the project and collected by construction personnel. Further, the El Centro

12

Project 1 will impair the long-term genetic viability of the flat-tailed horned lizard because the

13

border wall will diminish their habitat, restrict their movement patterns, and prevent genetically

14

diverse individuals from opposite sides of the international border from mating with each other.

15

Further, the border wall will improve conditions for the flat-tailed horned lizards’ predators. The

16

border wall will provide perching sites for loggerhead shrikes and American kestrels, two of the

17

lizard’s major predators, which will make it easier for them to observe and capture the horned

18

lizard. Finally, both on and off-road vehicles injure and kill flat-tailed horned lizards. The

19

animal typically “freezes” in the presence of threats, including vehicles, making them particularly

20

susceptible to getting hit by vehicles. Studies have found that even on infrequently traveled

21

roadways, 3% and 19% of the flat-tailed horned lizards observed were dead on the road over two

22

years of study (page 18 in California Department of Fish and Wildlife. 2014. Report to the Fish

23

and Game Commission. Evaluation of the Petition from the Center of Biological Diversity to list

24

the Flat-tailed Horned Lizard (Phrynosoma mcallii) as Endangered under the California

25

Endangered Species Act. Sacramento, California).

26
27

24.

The burrowing owl is a State of California Species of Special Concern. This

ground nesting bird has declined throughout most of its range in California.

28
6

1

25.

The threats from the proposed El Centro Project 1 border wall to the burrowing

2

owl include death or injury from construction operations, including by being buried alive in their

3

burrows, and from vehicular traffic with the project

4

26.

The U.S. Bureau of Land Management has designated the entire area of Imperial

5

County where the El Centro Project 1’s proposed border wall will be located as the Yuha Basin

6

Area of Critical Environmental Concern (ACEC). ACEC designations highlight areas where

7

special management attention is needed to protect important historical, cultural, and scenic

8

values, or fish and wildlife or other natural resources. According to the BLM, the Yuha Basin

9

ACEC contains important habitat for the flat-tailed horned lizard and several unique vegetation

10
11

communities.
27.

I am hopeful that NEPA and ESA analyses, if done properly and in good faith by

12

DOD, DHS and CBP, will ensure the survival and recovery in the wild of the U.S. and State of

13

California endangered peninsular bighorn sheep, and the State of California Species of Special

14

Concern flat tailed horned lizard and burrowing owl.

15

EL PASO PROJECT 1

16

28.

I am gravely concerned by the failure of the DOD, DHS, and CBP to comply with

17

NEPA for their proposed border wall in New Mexico. These agencies have failed to consider the

18

proposed border wall’s effects on the endangered and Experimental Nonessential Populations1 of

19

the Mexican wolf (Canis lupus baileyi) and the Aplomado falcon (Falco femoralis

20

septentrionalis), and failed to consult with the FWS on possible environmental and species

21

effects.

22
23
24
25
26
27
28

“Nonessential Population” is the designation for members of a threatened or endangered
species who have been transported and released within suitable habitat within its probable
unoccupied historic range or in areas where the species did not formerly exist. An “Essential
Experimental Population” is one whose loss would be likely to appreciably reduce the survival of
the species in the wild, all other Experimental Populations are nonessential. Nonessential
Experimental Populations also intentionally have reduced protections in order to encourage public
and private landowners to assist in the recovery of the imperiled species. The purpose of
Experimental Populations is to establish populations of endangered or threatened species with the
intent of reducing the possibility of their extinction, improving their chances of recovery, and thus
the need for their continued protection under the Endangered Species Act. The authority for
Endangered Species Act (ESA) section 10(j) rules is given at 50 CFR § 1539(j).
7
1

1

29.

From decades of work with endangered and threatened species, as well as

2

experience dealing with the Mexican wolf and Aplomado falcon while I was stationed at the FWS

3

New Mexico Ecological Services Office, I recognize the threat that border wall construction and

4

maintenance, and associated operations pose to these two animals. The proposed construction of

5

the border wall in Doña Ana and Luna Counties and associated construction-related activities

6

may have a number of adverse effects on the Mexican wolf and Aplomado falcon. These include

7

direct effects, such as injury, death, harm, and harassment due to construction of the border wall

8

including linear vegetation clearing; road construction; grading and construction of equipment

9

storage and parking areas; off road movement of vehicle and equipment involved in construction;

10

and poisoning from chemical application (herbicides and pesticides). A series of indirect effects,

11

such as harassment, on the two endangered species also are possible, including, abandonment of

12

the area for essential behaviors such as feeding, resting, and mating due to night lighting; and

13

detrimental impacts caused by exotic invasive weeds introduced by construction and routine DHS

14

and CBP operations, which will eliminate food sources and habitat for rodents and other animals

15

utilized by the Mexican wolf and the Aplomado falcon. The combined direct and indirect effects

16

of a border wall would be additional pressures on the survival and recovery in the wild of these

17

two endangered species. The threats to the endangered Mexican wolf are of special concern,

18

given the dangers they face in the Republic of Mexico, and the need to maintain natural

19

connectivity for the animal between the United States and Mexico.

20

30.

More specifically, the proposed border wall identified as El Paso Project 1 in the

21

February 25, 2019, memorandum from DHS to the DOD regarding a “Request for Assistance

22

Pursuant to 10 U.S.C. § 284” would interrupt the movement of the Mexican wolf across the

23

US/Mexico Border, including in Doña Ana and Luna Counties which is where El Paso Project 1

24

will be constructed. The Center for Biological Diversity has obtained information from the FWS

25

via the Freedom of Information Act (FOIA) on the cross international border movement of a

26

radio-collared Mexican wolf who was released in Mexico in 2017. It was first recorded on

27

January 21, 2017 in the United States, it was then recorded in the City of Las Cruces, Doña Ana

28

County, New Mexico, on January 23, 2017 and then last recorded on the outskirts of Ciudad
8

1

Juárez in the Mexican state of Chihuahua on January 25, 2017. The relevant information

2

obtained by the Center for Biological Diversity via this FOIA request is attached as Exhibit A to

3

this declaration.

4

31.

The pedestrian border wall will adversely affect, and likely restrict or eliminate the

5

ability of Mexican wolves to move on their own volition between Mexico and the United States.

6

Since the pedestrian walls will be effective in prohibiting the entry of humans, they also will

7

restrict or prevent the movement of Mexican wolves between these two nations. The Mexican

8

wolf’s essential behavior of long distance movement in Doña Ana and Luna counties will be

9

blocked by the proposed border wall. The unimpeded movement of Mexican wolves between the

10

United States and Mexico is important for increasing and maintaining their genetic diversity. The

11

lack of genetic diversity for a species may result in physical malformities, behavioral problems,

12

reduced ability to successfully reproduce and produce viable offspring, reduced lifespan, reduced

13

ability to avoid predators, greater susceptibility to disease, and the reduced ability to survive

14

adverse environmental conditions, such as extremely cold winters or hot summers. The proposed

15

border wall could eliminate the possibility of the recovery of the endangered Mexican wolf and

16

preclude their delisting under the Endangered Species Act.

17

32.

Further, construction the proposed border wall could result in the harassment of

18

endangered Mexican Aplomado falcons. Noise and other disturbance resulting from bulldozers

19

and other construction equipment and activities could cause the significant disruption of their

20

normal behaviors such as foraging and feeding.

21

33.

There will be irreparable harm to the Mexican wolf and the Aplomado falcon

22

without proper NEPA review and the completion of section 7 consultation by these three federal

23

agencies as required by the Endangered Species Act.

24

34.

The proposed border wall will also harm other species that are not federally

25

recognized as endangered or threatened. Given the lack of an adequate assessment of El Paso

26

Project 1 on the environment, the potential effects of the proposed project on sensitive habitats, as

27

well as non-listed, but imperiled species remains unknown. The border wall construction and

28

associated activities such as vehicle traffic, road building, horseback and quad patrols, night
9

1

lighting, and other associated human and law enforcement activities could permanently alter the

2

geography, and impact native vegetation and plant communities, especially by improving habitat

3

conditions for invasive weeds, and adversely impacting the existing natural ecosystems.

4

35.

The earth moving and associated disturbance caused by border wall construction

5

will create habitat for invasive exotic plants and weeds which outcompete and replace native

6

plants. These exotic species initiate a downward spiral of increasingly destructive effects to

7

native plants, and native animals dependent on the native vegetation for food and the predators

8

that feed on them. The seeds of exotic weeds from other areas are easily transported within dried

9

mud or dirt on construction equipment, or unintentionally by CBP cars, trucks, horse trailers,

10
11

quads, and the hooves and fur of their patrol horses.
36.

The Gila monster (Heloderma suspectum), the iconic large orange and black

12

colored venomous lizard, inhabits both sides of the international border from west of El Paso,

13

Texas, all through New Mexico, and into Arizona. This legendary reptile is listed as endangered

14

by the State of New Mexico. Its 2017 recovery plan issued by the New Mexico Department of

15

Game and Fish (Gila Monster (Heloderma suspectum) Recovery Plan by John Bulger dated April

16

5, 2017) includes information that the reptile has been collected or observed at six locations west

17

of El Paso and Las Cruces.

18

37.

Gila monsters in New Mexico are typically found where Chihuahuan desert scrub

19

merges with desert grassland. Dominant vegetation in occupied and suitable sites includes

20

creosote bush, catclaw, snakeweed, ocotillo, mesquite, juniper, cacti, sotol, and numerous grasses.

21

Small trees, shrubs, and herbaceous vegetation provide important cover and food for the Gila

22

monster’s prey. The recovery plan reported that Gila monsters in New Mexico prefer relatively

23

coarse gravelly conglomerate soils and areas of loam and sand. Of paramount importance is

24

availability of suitable refuge shelters, which occur in rock cavities and crevices, pack rat

25

mounds, and burrows created by other reptiles or mammals.

26

38.

The recovery plan noted Gila monster home range sizes are highly variable,

27

ranging from <2.5 acres to 259 acres. Typically, Gila monsters center their activities and home

28

ranges on their refuge shelters. Individuals have tremendous fidelity to their home ranges, e.g.
10

1

they stay within their “home” area, according to one herpetologist (Daniel Beck. 2005. Biology of

2

Gila monsters and beaded lizards. University of California Press).

3

39.

The low number of observations and records of the Gila monster west of El Paso

4

and Las Cruces in the recovery plan may be misleading. It does not demonstrate that the area is

5

not suitable for this reptile. Based on my experience at the FWS, I know Gila monsters are

6

extremely popular in the illegal reptile trade. Poachers and smugglers sell illegally collected

7

individuals for hundreds of dollars. Given their protected status by the State of New Mexico and

8

the Republic of Mexico where it is protected, it is unlikely that poachers who have taken Gila

9

monsters west of the El Paso area on either side of the US/Mexico border would make the

10

information public. This is because they do not want to be caught by law enforcement authorities

11

or reveal the locations where the animals were found to other poachers.

12

40.

Given the amount of suitable habitat along the U.S./Mexico border in New Mexico

13

west of El Paso, the high value of the Gila monster by reptile collectors, and the biology and

14

ecology of the species, it is highly likely that this animal inhabits the area where the border wall is

15

proposed.

16

41.

The threats from the proposed border wall to the Gila monster come in the form of

17

direct effects of wall construction such as their death or injury from construction operations,

18

falling into trenches or other holes and then dying of exposure or being buried alive; getting run

19

over by vehicles associated with the project; collected by construction personnel; and indirect

20

effects in the form of the border wall blocking their movement patterns or reducing the size of

21

individual animal’s home ranges and eliminating the available food or shelter resources.

22

42.

I am hopeful that NEPA and ESA analyses, if done properly and in good faith by

23

DOD, DHS and CBP, will ensure the survival and recovery in the wild of the endangered

24

Mexican wolf and endangered Aplomado falcon, and the New Mexico State-listed Gila monster,

25

in addition to maintaining the health of the greater ecosystem in the New Mexico borderlands

26

region. Requiring DOD, DHS and CBP to complete the NEPA process will surely redress the

27

irreparable harms to both federally-listed and state-listed species, wildlife, and the environment.

28
11

EXHIBIT A

From:
To:
Cc:
Subject:
Date:
Attachments:

SbeCJY Barrett: John Dakleaf
Mexican wolf Ml425
Friday, January 27, 2017 10:22:50 AM

tmaae,ono
lmaae,009

Hi
Our counterparts in Mexico have contacted us about OPS locations downloaded from a radio collar worn by a
recently released wolf(Ml425) in Mexico. The downloads from the animal's collar presumably show that It crossed
the border into the US. went to Las Cruces, and returned across the border into Mexico. I attached below a
screenshot of the downloads.
The first location in the US is at 8pm on January 21,and the location in Las Cruces is at 8am on the 23rd (a zoomed
in map of this specific location is also below). The first location back into Mexico is at 8am on January 24th.
The last GP$ download from this collar was on the outskirts of Juarez at 11am on the 25th. Me,xico's field team
heard the radio signal from Juarez on the evening of the 25th. The field team has not been able to locate the collar
since, and the GPS has not downloaded since.
As you can see, some of the locations are in urban areas. IL could be that the animal is alive and dispersing through
these areas. Or. and to this point, Mexico has said "it could be that the coJJar (with or without carcass) is in hands of
somebody that is carrying it around."
Mexico is trying to determine whether the colJar is being worn by a live wolf, and will let us know any information
they learn. Let us know if you have any questions.
Maggie

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EXHIBIT 5

1

XAVIER BECERRA

2

ROBERT W. BYRNE
SALLY MAGNANI
MICHAEL L. NEWMAN

Attomey General of California
3

Senior Assistant Attorneys General
4

5

MICHAEL P. CAY ABAN
CHRISTINE CHUANG
EDWARD H. 0CI-IOA

Supervising Deputy Attorneys General
6
7
8
9

10
11

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

12
IN THE UNITED STATES DISTRICT COURT
13
FOR THE NORTHERN DISTRICT OF CALIFORNIA
14
OAKLAND DIVISION
15
16
17
18
19
20
21
22
23
24
25

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
NEV ADA; 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;

DECLARATION OF ELEANORE
NESTLERODE IN SUPPORT OF
MOTION FOR PARTIAL SUMMARY
JUDGMENT REGARDING SECTIONS
284, 8005, AND 9002

Plaintiffs,

26
27

4: 19-cv-00872-HSG

v.

28
Deel. of Eleanore Nestlerode ISO Mot. For Partial Summ. J. (4: 19-cv-00872-HSG)

1

2
3
4

5
6

7
8
9

10
11

12

13
14

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; MARKT.
ESPER, in his official capacity as Secretary of
the A1my; 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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16

17
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19

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21

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23

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25

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27

28
Deel. ofEleanore Nestlerode ISO Mot. For Partial Summ. J. (4:19-cv-00872-HSG)

1

I, Eleanore Nestlerode, declare as follows:

2

1.

I am Eleanore Nestlerode. I have personal knowledge of the facts set f01th in this

3

declaration. If called as a witness, I could and would testify competently to the matters set forth

4

below. I previously executed a declaration dated April 3, 2019 in supp01i of the Plaintiff States'

5

Preliminary Injunction concerning the El Paso Sector Project 1 that was substantively the same as

6

this declaration.

7

8

2.

I am a staff member of the New Mexico State Land Office (SLO) and have worked

for SLO as IT/GIS Business Analyst since February 12, 2007.

9

3.

One of my duties is locating and mapping state trust lands for the SLO.

10

4.

I work at the Land Office Geographic Inf01mation Center of the SLO, where I

11

prepared the map attached as Exhibit A to this declaration. The map depicts New Mexico state

12

trust lands along the New Mexico-Mexico border and also identifies real prope1ty managed by the

13

federal government, as well as privately owned property.

14

5.

The attached map illustrates New Mexico's specific interests in the state trust lands

15

outlined in the map, noting whether New Mexico has a surface interest ( or "estate"), a subsurface

16

interest or estate, or both, in the state trust lands shown. Federal surface land management is

17

identified as being associated with the federal Bureau of Land Management (BLM).

18

6.

To prepare the map, I assembled the most up-to-date GIS ownership data layers

19

available to the New Mexico State Land Office, both of federal surface ownership, and of in-

20

house state trust lands surface and subsurface ownership, and overlaid these layers on a standard

21

topographic base map. I then analyzed the state trust lands located in the vicinity of coordinates

22

associated with the El Paso Sector Project 1 site by entering those coordinates that the

23

Department of Homeland Security (DHS) provided to the Department of Defense (DOD) in a

24

memorandum dated February 25, 2019, concerning DHS ' s "Request for Assistance Pursuant to

25

10 U.S.C. § 284" (DHS Memorandum).

26

7.

The DHS Memorandum specifies that the El Paso Project 1 includes installation of 46

27

miles of pedestrian fencing beginning approximately 17.5 miles west of the Columbus Poli of

28

Entry and continuing east in non-contiguous segments to approximately 35 miles east of the
1
Deel. of Eleanore Nestlerode ISO Mot. For Partial Summ. J. (4: 19-cv-00872-HSG)

1

Columbus Port of Entry within Luna and Dona Ana Counties, New Mexico. The Memorandum

2

indicates that the fencing will be constructed in two stretches, with one starting at coordinate

3

31.7837, -107.923151, and ending at 31.783689, -107.679049, and the second starting at

4

coordinate 31.783672, -107.573919, and ending at 31.783741, -107.038154.

5
6
7

I declare under penalty of perjury under the laws of the United States that the foregoing is
trne and correct.
Executed on June 11, 2019, at Santa Fe, New Mexico.

8

~~~-

9

10

Eleanore N estlerode

11

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2
Deel. of Eleanore Nestlerode ISO Mot. For Partial Summ. J. (4: l 9-cv-00872-HSG)

EXHIBIT A

Arizona

P
!

HIDALGO

-107.573919
31.783672

Lordsburg

29S 7W

28S 7W

-107.923151
31.7837

29S 11W

28S 11W

P
!

LUNA

Mexico

SIERRA

OTERO

Texas

P
!Las Cruces

DONA ANA

29S 6W

28S 6W

Arena
29S 5W

28S 5W

29S 4W

-107.679049
31.783689

29S 8W

28S 8W

Malpais

28S 4W

-107.573919
31.783672

County Lines

Railroads

Local Roads

Highway

Interstate

County Seats

Cities and Towns

Bureau of Land Management

Federal Surface Management

Both Estates

Surface Estate

Subsurface Estate

State Trust Lands

29S 3W

28S 3W

Note: state trust land ownership is adjacent to a 60-foot strip of land along the border with Mexico referred to as the
Roosevelt Reservation, reserved in a 1907 Presidential Proclamation; this may not be visible due to scale limitations.

P
!

28S 7W

29S 7W

New Mexico State Trust Lands Status
Along the Border with Mexico

29S 9W

28S 9W

1

2

Miles
4

±

505-827-5735

Stephanie Garcia Richard
Commissioner of Public Lands
505-827-5761
www.nmstatelands.org

0

-107.038154
31.783741

29S 2W

28S 2W

28S 6W

29S 6W

The New Mexico State Land Office assumes no responsibility or liability for, or in connection with, the accuracy, reliability or use of the information provided herein, with respect to State Land Office data or data from other sources.
Data pertaining to New Mexico State Trust Lands are provisional and subject to revision, and do not constitute an official record of title. Official records may be reviewed at the New Mexico State Land Office in Santa Fe, New Mexico.
Compiled, edited and printed by the Land Office Geographic Information Center. V:\LOGIC\FRONT OFFICE\NMSouthernBorder20190327. Save Date: March 27, 2019 Print Date: March 27, 2019. Created by: Eleanore Nestlerode [e-mail]

Deming

Locator Map

Silver City

GRANT

P
!

29S 10W

28S 10W

EXHIBIT 6

1
2
3
4
5
6
7
8
9
10
11

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

12
IN THE UNITED STATES DISTRICT COURT
13
FOR THE NORTHERN DISTRICT OF CALIFORNIA
14
OAKLAND DIVISION
15
16
17
18
19
20
21
22
23
24
25

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;

DECLARATION OF MYLES B.
TRAPHAGEN IN SUPPORT OF
PLAINTIFFS’ MOTION FOR PARTIAL
SUMMARY JUDGMENT REGARDING
SECTIONS 284, 8005, AND 9002

Plaintiffs,

26
27

4:19-cv-00872-HSG

v.

28
Decl. of Myles B. Traphagen In Supp. of Mot. for Partial Summ. J. (4:19-cv-00872-HSG)

1
2
3
4
5
6
7
8
9
10
11
12
13
14

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.

15
16
17
18
19
20
21
22
23
24
25
26
27
28
Decl. of Myles B. Traphagen In Supp. of Mot. for Partial Summ. J. (4:19-cv-00872-HSG)

1

I, Myles B. Traphagen, declare as follows:

2

1.

3
4

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 the Borderlands Program Coordinator for Wildlands Network in Tucson,

5

Arizona. I also serve as the Science Coordinator for the Malpai Borderlands Group based in

6

Douglas, Arizona. I reside in Tucson, Arizona.

7

3.

I hold a Bachelor of Arts Degree from the University of California Santa Cruz in

8

Environmental Studies and a Master of Science Degree from the University of Arizona in

9

Geographic Information Systems. The research I conducted for my Master’s Degree, “Habitat

10

connectivity for the white-sided jackrabbit (Lepus callotis) between the United States and

11

Mexico: The border divides a species,” used Landsat satellite imagery over a 30-year period from

12

1984 to 2014 to evaluate whether connectivity existed between the U.S. and Mexico populations

13

of the white-sided jackrabbit.

14

4.

Since 1996, I have conducted field surveys, inventories and research along the US

15

and Mexico border region and in Mexico. From 1996 to 1998 I worked for the U.S. Fish and

16

Wildlife Service (“Service” or “FWS”) at San Bernardino National Wildlife Refuge in southeast

17

Arizona conducting bird surveys, native fish surveys and recovery of Rio Yaqui fishes which

18

reach their northernmost distribution in Cochise County of southeast Arizona.

19

5.

From 1998 to 2008, I conducted research as a consultant for the U.S. Forest

20

Service Rocky Mountain Research Station and Malpai Borderlands Group on the effects of fire,

21

grazing and climate in the borderlands of southwest New Mexico and southeast Arizona. During

22

this time period I also began researching the white-sided jackrabbit (Lepus callotis gaillardi), a

23

State of New Mexico Threatened species that reaches its northern distribution in Hidalgo County,

24

New Mexico, commonly referred to as the “Bootheel.”

25

6.

From 2000 to 2008, I worked for both Turner Enterprises and the Turner

26

Endangered Species Fund in New Mexico inventorying vegetation, monitoring bison

27

reintroduction, prairie dog reintroduction and rewilding the Bolson tortoise from Durango,

28

Mexico. I have held permits from the New Mexico Department of Game and Fish to survey
1
Decl. of Myles B. Traphagen In Supp. of Mot. for Partial Summ. J. (4:19-cv-00872-HSG)

1
2

mammals in the state.
7.

From 2007 to 2014, I was a U.S. Bureau of Land Management (“BLM”)

3

Authorized Biologist and worked as a consultant on numerous renewable energy projects in

4

California and Nevada surveying and translocating desert tortoise.

5

8.

In 2010 and 2011, I conducted research for the New Mexico Department of Game

6

and Fish to assess the population status of the white-sided jackrabbit in New Mexico. The results

7

of this survey suggested that roadkill by the U.S. Customs and Border Patrol (“CBP” or “Border

8

Patrol”) was a significant factor leading to a threefold population decline in less than decade.

9

9.

I have led botanical survey crews in California, Nevada, Arizona, Nebraska, South

10

Dakota and New Mexico and have produced over 100 reports for agencies and private groups,

11

and have written several publications, book chapters and maps concerning wildlife and plant

12

species.

13

10.

My current employment as Borderlands Program Coordinator with Wildlands

14

Network involves researching and advocating for wildlife corridors and connectivity. This entails

15

a significant amount of work in Mexico on projects such as trail camera trapping, mapping, and

16

designing projects for mitigating road and highway impacts to wildlife and enhancing habitat

17

connectivity.

18

11.

As the Science Coordinator the Malpai Borderlands Group, I implement research

19

and monitoring projects such as climate and weather monitoring and fire and grazing research. I

20

also review and coordinate a large array of projects that relate directly to conservation projects in

21

the borderlands of Arizona and New Mexico.

22

12.

I have analyzed the border-infrastructure projects outlined in the February 25,

23

2019, memorandum regarding “Request for Assistance Pursuant to 10 U.S.C. § 284” that the U.S.

24

Department of Homeland Security (“DHS”) directed to the U.S. Department of Defense

25

(“DOD”), in which DHS requests DOD’s assistance in constructing pedestrian fencing along

26

approximately 218 miles of the U.S.- Mexico border. DHS has identified eleven separate projects

27

for border areas located in California, Arizona and New Mexico (“Section 284 Projects”).

28

13.

One of the Section 284 Projects, El Paso Project 1, is located in Doña Ana and
2
Decl. of Myles B. Traphagen In Supp. of Mot. for Partial Summ. J. (4:19-cv-00872-HSG)

1

Luna Counties in New Mexico, and involves removing 46 miles of vehicle barrier fencing and

2

replacing it with pedestrian fencing. El Paso Project 1 also includes construction of roads and

3

installation of lighting.

4

14.

In this declaration, I provide several examples specific to the El Paso Project 1

5

site, and to the border region more generally, to illustrate how the Section 284 Projects and El

6

Paso Project 1 will cause irreparable harm to wildlife, including to endangered species like the

7

Mexican Gray Wolf (Canis lupus baileyi).

8
9

15.

The specific design of border walls and fences significantly affects how the

walls/fences will impact wildlife movement. There are numerous types of fencing that fall into

10

two categories according to what type of traffic they are intended to exclude or deter: vehicle and

11

pedestrian. Within those two types there are many designs depending upon when they were built.

12

16.

Vehicle Fencing: Made of either short steel bollards or “Normandy-style” steel

13

crossbars, these are designed to deter “drive-thrus” of vehicles. They are the least detrimental to

14

wildlife because they allow most animals to cross under or between them. However, they can be a

15

formidable barrier for large animals like bison, Sonoran pronghorn or bighorn sheep. Pronghorn

16

do not jump and can have difficulty passing beneath the vehicle fencing. The Janos-Hidalgo bison

17

herd had roamed between southwest New Mexico and Chihuahua, Mexico for about 100 years,

18

but their movements were inhibited when the Normandy-vehicle barrier was installed along the

19

New Mexico-Mexico border. The herd has not been seen in several years.

20

17.

Pedestrian fencing: This fencing is designed to deter and impede people, and

21

therefore it is effective at impeding most animals from passing through. It ranges from 10 to 18

22

feet high, although 30-foot replacement fencing is currently planned for San Diego and some

23

areas of Arizona. The style of pedestrian fencing that DHS currently favors is known as steel

24

bollard. The most common type employed is 6 x 6 inch diameter square steel posts filled with

25

concrete. The spacing between the steel posts is 4 inches. The height of the most recent border-

26

wall-infrastructure projects is 18 feet, but some recent plans for replacement fencing call for 30-

27

foot bollards. The bollard fencing recently installed in the twenty-mile section west of Santa

28

Teresa, New Mexico, an area that is adjacent to and just east of the El Paso Project 1 site, is 18
3
Decl. of Myles B. Traphagen In Supp. of Mot. for Partial Summ. J. (4:19-cv-00872-HSG)

1

feet high with 4-inch gaps. The details of these fencing designs are extremely important to

2

understand in order to evaluate the effect they may have upon wildlife movement, migration and

3

connectivity.

4

18.

Mexican Gray Wolf (Canis lupus baileyi): The Mexican gray wolf is the rarest

5

subspecies of gray wolf in North America. It was once common throughout the southwestern

6

U.S., but was nearly eliminated from the wild by the 1970s. The Mexican gray wolf is listed as

7

endangered under the Endangered Species Act (“ESA”) (80 FR 2488), and is also listed as

8

endangered under New Mexico’s Wildlife Conservation Act. El Paso Project 1 will harm the

9

Mexican gray wolf and significantly impact its recovery by dividing its habitat and impeding the

10

wolf’s movement.

11

19.

For El Paso Project 1, the Trump administration plans to build an impermeable

12

bollard steel wall, precluding all animals greater than 4” wide from passing through. This wall

13

will prevent any connection between wolves from the U.S. and Mexico which is critical for the

14

wolf’s recovery. The Mexican Wolf Recovery Plan-First Revision, which is a wildlife plan the

15

Service approved under the ESA to facilitate the wolf’s revival, calls for a minimum of 320

16

wolves in the United States and 200 in Mexico to meet recovery goals. Ensuring that wolves can

17

access their entire range in the U.S. and Mexico is important to the wolf’s recovery because it

18

allows for greater utilization of habitat and prey availability and will promote the establishment of

19

meta-population connectivity.

20

20.

Carroll et al (2014) state, “Restoring connectivity between fragmented populations

21

is an important tool for alleviating genetic threats to endangered species. Yet recovery plans

22

typically lack quantitative criteria for ensuring such population connectivity. We demonstrate

23

how models that integrate habitat, genetic, and demographic data can be used to develop

24

connectivity criteria for the endangered Mexican wolf (Canis lupus baileyi), which is currently

25

being restored to the wild from a captive population descended from 7 founders. We used

26

population viability analysis that incorporated pedigree data to evaluate the relation between

27

connectivity and persistence for a restored Mexican wolf meta-population of 3 populations of

28

equal size. Decreasing dispersal rates greatly increased extinction risk for small populations
4
Decl. of Myles B. Traphagen In Supp. of Mot. for Partial Summ. J. (4:19-cv-00872-HSG)

1

(<150-200), especially as dispersal rates dropped below 0.5 genetically effective migrants per

2

generation.” Impeding connectivity between the U.S. and Mexican populations runs counter to

3

published research that advises otherwise. An impenetrable border wall hamstrings binational

4

efforts that have occurred for 30 years.

5

21.

Under the ESA, critical habitat is sometimes designated for listed species. But for

6

the Mexican Wolf, the Service instead re-introduced the species to Arizona and New Mexico as

7

an ESA section 10(j) non-essential experimental population in order to allow for more flexibility

8

in the recovery process within the 5,000 square-mile Mexican Wolf Experimental Population

9

Area (“MWEPA”). On January 16, 2015, the Service revised the regulations for the non-essential

10

experimental population of the Mexican wolf under section 10(j) to improve the population’s

11

ability to contribute to recovery (80 FR 2512). With the encouragement of Southwestern states

12

including New Mexico, and based on the Service’s collaborative relationship with Mexico,

13

recovery planning was reinitiated in December 2015, focusing south of Interstate 40 in Arizona

14

and New Mexico and into Mexico, which encompasses the historical range of the Mexican wolf.

15

22.

Newly Published Taxonomic Status of the Mexican Gray Wolf: On March 28,

16

2019, the National Academies of Sciences, Engineering, and Medicine released their findings on

17

Evaluating the Taxonomic Status of the Mexican Gray Wolf and the Red Wolf. The report

18

concludes that the Mexican gray wolf is a valid taxonomic subspecies of the gray wolf. The

19

Mexican gray wolf’s size, morphology (physical characteristics such as head shape), and color

20

distinguish it from other North American wolves. Genetic and genomic analyses confirm that the

21

Mexican gray wolf is the most genetically distinct subspecies of gray wolf in North America. The

22

Mexican gray wolf represents a smaller form of the gray wolf and inhabits a more arid ecosystem

23

than the gray wolf. Furthermore, the current managed population of Mexican gray wolves are

24

direct descendants of the last remaining wild Mexican gray wolves; the known history of current

25

Mexican gray wolves suggests that there is continuity between them and the historic lineage.

26

There is no evidence that the genome of the Mexican gray wolf includes DNA from domestic

27

dogs. Preserving and maintaining Mexican wolf habitat in Mexico and the U.S. is critical to

28

ensuring the survival of this unique and rare subspecies.
5
Decl. of Myles B. Traphagen In Supp. of Mot. for Partial Summ. J. (4:19-cv-00872-HSG)

1

23.

Long Distance International Wolf Dispersal, including in the El Paso Project 1

2

Site: Mexican gray wolf habitat exists on both sides of the U.S.-Mexico border, and wolves cross

3

the border to access this habitat. In January of 2017, a GPS-collared male Mexican Gray Wolf

4

(M1425), that was part of the U.S.-Mexico Bi-national Recovery Program in Mexico, crossed the

5

border from Chihuahua and spent four days in the U.S. before returning to its original starting

6

location in Mexico. While in the U.S., the wolf crossed the entire West Potrillo Mountains portion

7

of the Organ Mountains-Desert Peaks National Monument in New Mexico, and associated

8

wilderness areas and Areas of Critical Environmental Concern (“ACECs”) in New Mexico.

9

Additionally, it occupied both Zones 1 and 2 of the Mexican Wolf Experimental Population Area

10

in New Mexico. The entire journey totaled 600 miles, of which 100 were in the U.S. (See Exhibit

11

A attached to this declaration, which is a map I generated using GPS data to depict Wolf M1425’s

12

journey which also shows the El Paso Project 1 site).

13

24.

The most important part of Wolf M1425’s epic excursion, in regard to this case, is

14

that it crossed the border at the proposed El Paso Project 1 site. Furthermore, it crossed back into

15

Mexico through an unfenced section of the border at El Paso-Juarez. This location is a steep and

16

rocky rugged mountain known as Mt. Cristo El Rey, and it has remained unfenced due to its

17

topography. If El Paso Project 1 is completed, then the prospects of Mexican Gray Wolves

18

dispersing and connecting to their northern counterparts will be next to zero, which will present

19

significant obstacles to the long-term genetic fitness of the species at large and decrease the

20

possibility that a healthy meta-population can grow (referenced above in paragraph 20 which

21

describes the work of Carroll et al).

22

25.

Additional Mexican Wolves Dispersing to the U.S. from Mexico: Wolf M1425 is

23

not alone in making cross-border journeys between the U.S. and Mexico. In 2017, another

24

Mexican gray wolf was documented crossing the U.S.-Mexico border. Like Wolf M1425, this

25

second wolf also originated from Mexico and wore a GPS collar. This wolf, a female labeled

26

F1530, was born in 2016 at a captive-wolf-breeding facility in Cananea, Mexico, and was

27

released in October 2016 in Chihuahua, Mexico, approximately 90 to 100 miles south of the New

28

Mexico border. The last collar radio transmission from Mexico was from February 14, 2017, 21
6
Decl. of Myles B. Traphagen In Supp. of Mot. for Partial Summ. J. (4:19-cv-00872-HSG)

1

miles south of the New Mexico international border, as at that time the GPS collar became

2

inoperable. She was later observed in the U.S. in March, 2017, and was captured by the

3

Interagency Wolf Field Team on March 26, 2017, near the Chiricahua Mountains in Cochise

4

County, Arizona. She was then relocated to a wolf-breeding facility at the Sevilleta National

5

Wildlife Refuge in New Mexico. This wolf likely crossed the border in the lower San Bernardino

6

Valley near San Bernardino National Wildlife Refuge in Arizona. This stretch of border currently

7

has a vehicle barrier, but under the proposed Tucson Project 3, one of the Section 284 Projects,

8

steel bollard-pedestrian fencing will be installed, which will preclude any animals larger than four

9

inches in width from crossing the border. The combined impact of the Section 284 Projects,

10

especially in Arizona and New Mexico, will have devastating impacts on the connectivity

11

between Mexican wolf habitat in the U.S. and Mexico and will harm the species’ recovery.

12

26.

Secondary effects of Border Patrol activities on wildlife: In addition to border

13

barriers, the uncontrolled perennial presence of Border Patrol can severely impact animals. I

14

recorded evidence of this harm to species in Hidalgo County, New Mexico in an area west of the

15

El Paso Project 1 site. In that area Border Patrol vehicles outnumbered private vehicles 37 to 2

16

during a survey I conducted on Hidalgo County Road 1. Border Patrol vehicles result in roadkill

17

deaths for numerous species such as the white-sided jackrabbit, which in the U.S. only occurs in

18

Hidalgo County. A rise in the number of Border Patrol Agents in this same area (from 50 in 2000

19

to 300 in 2010), also led to more roadkill incidents due to increased vehicle use. I expect the same

20

impacts will occur to species such as the Western Narrow-mouthed Toad (Gastrophyrne

21

olivacea), a listed endangered species in New Mexico, that was documented by the New Mexico

22

Game & Fish Department along Highway 9 in Luna County near the El Paso Project 1 site. The

23

improved roads planned for El Paso Project 1 will allow Border Patrol vehicles to travel at faster

24

speeds which will likely cause more roadkill to sensitive species like the Western Narrow-

25

mouthed toad which often occupies low-lying depressions in the road that fill after warm-season

26

monsoon rains that occur between June and September.

27
28

27.

Wildlife Connectivity and Corridors: Wildlife connectivity and corridors should be

considered when evaluating a project’s environmental impacts, including under the National
7
Decl. of Myles B. Traphagen In Supp. of Mot. for Partial Summ. J. (4:19-cv-00872-HSG)

1

Environmental Policy Act (“NEPA”), because habitat connectivity is critical to many species’

2

survival. New Mexico recognizes the importance of wildlife connectivity, and on March 28,

3

2019, New Mexico’s Governor signed the Wildlife Corridors Act into law. The Wildlife

4

Corridors Act requires New Mexico state agencies to create a “wildlife corridors action plan” to

5

protect species’ habitat. Portions of El Paso Project 1 cross New Mexico State Trust Lands (as

6

shown in Exhibit B to this declaration), and the planned pedestrian fencing disrupts habitat

7

corridors in New Mexico—contrary to the Wildlife Corridors Act. Also, in my view the Mexican

8

gray wolf is a “species of concern” under the Act due to wolf mortality from vehicles on New

9

Mexico’s roads, which include roads along the border that will be constructed as part of El Paso

10
11

Project 1.
28.

New Mexico’s State Trust Lands in and around the El Paso Project 1 site,

12

including within the Organ Mountains-Desert Peaks National Monument, the West Potrillo

13

Mountains Wilderness Study Area, and the Alden Lava Flow Wilderness Study Area, form an

14

important wildlife corridor for numerous species such as mule deer, javelina, pronghorn, bighorn

15

sheep, mountain lion, bobcat, coyote, bats, quail and other small game like rabbits. This area is

16

one of the largest undisturbed patches of Chihuahuan Desert grassland in the southwest and forms

17

an important ecosystem and crucial habitat for rare birds such as the Aplomado falcon, which is

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present in both Luna and Doña Ana Counties, and Baird’s sparrow.

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29.

Organ Mountains-Desert Peaks National Monument: The BLM currently manages

20

all of the public lands within this new national monument for a range of multiple uses, including

21

grazing, conservation of natural and archeological resources, and outdoor recreation activities

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such as hunting, hiking, biking, and camping. Statewide, BLM-New Mexico hosted 2.9 million

23

visitors at 28 recreation sites in fiscal year 2013. Recreation on BLM-managed lands and waters

24

in New Mexico supported more than 1,900 jobs and contributed more than $172 million to the

25

state's economy in fiscal year 2012. The portions of this monument that would be impacted by a

26

border wall include the Greater Potrillo Mountains and Alden Lava Wilderness Study Areas,

27

which are both located approximately 30 miles southwest of Las Cruces. This monument and

28

BLM Wilderness Study Areas lie only ¼ mile north of the proposed El Paso Project 1 site. Within
8
Decl. of Myles B. Traphagen In Supp. of Mot. for Partial Summ. J. (4:19-cv-00872-HSG)

1

this federally managed area there are 35 parcels of New Mexico State Trust Lands, which total

2

23,078 acres (See Exhibit B to this declaration).

3

30.

New Mexico Game Management Unit 25: The large expanse of land ranging from

4

the proposed El Paso Project 1 site on the border, north to Interstate 10 near Deming (33 miles

5

north of the border), and east to Las Cruces, NM and the Texas border, constitutes a very large

6

New Mexico Game and Fish Department Game Management Unit known as GMU-25. It is over

7

2 million acres in size, of which about 1.25 million of are federal and state public lands. GMU-25

8

contains 337 parcels of New Mexico State Trust Land totaling 268,821 acres. (See Exhibit B to

9

this declaration). These State Trust Lands are a vital engine for the local economy. Important

10

game animals like mule deer and pronghorn rely upon this vast landscape that is connected to an

11

equally large unfragmented grassland in Mexico. Both countries act as sources and sinks for

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wildlife, largely as a function of the highly variable rainfall that serves as one of the primary

13

drivers of local and regional animal distribution.

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31.

In a changing climate where drought has become a frequent occurrence in the

15

Southwest, wildlife corridors are more important than ever for ensuring species’ survival. In

16

addition to the Mexican gray wolf discussed above, a perfect example in the region of interest to

17

this case, which will be impacted by the Section 284 Projects, is the pronghorn antelope

18

(Antilocapra Americana). The pronghorn relies upon “forbs” which are small annual plants that

19

are dependent upon seasonal rainfall. The West Potrillo mountains region, which is located in

20

Luna and Doña Ana Counties, along with the vast grasslands of Chihuahua to the south, is a large

21

area that is needed to fulfill the requirements of a species in search of infrequent and highly

22

variably distributed precipitation. In Mexico, the Chihuahuan subspecies of the American

23

pronghorn (Antilocapra americana mexicana) is listed as endangered. For millennia this species

24

has roamed the borderlands unimpeded by barriers. Major efforts are underway in Chihuahua to

25

recover the species, and re-introductions have occurred in the past year not far to the south. The

26

recovery of the Chihuahuan pronghorn in the region may be reliant upon its ability to be able to

27

roam long distances across the grasslands in search of forage.

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9
Decl. of Myles B. Traphagen In Supp. of Mot. for Partial Summ. J. (4:19-cv-00872-HSG)

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I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct.
Executed on June 7, 2019, at Tucson, Arizona.

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7
____________________________________
Myles B. Traphagen

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Decl. of Myles B. Traphagen In Supp. of Mot. for Partial Summ. J. (4:19-cv-00872-HSG)

EXHIBIT A

(Oi1

Mexican Wolf (Canis lupus baileyi}
Crossing of Border in 2017.

Jan 23 , 2017 :
Wolf wanders into

I ..... Approximate path of male wolf
-

Santa Teresa Wall (DHS Waiver 1/22/2018)

-

Pedestrian fencing

::::a::::a

Mt. Cristo Rey (4675 ') has
1.8 mile gap in border wall
due to rugged topography

Proposed El Paso 1 Pedestrian Bollard

Jan 22 , 2017:
Wolf spends a day at the
Organ Mountains-Desert Peaks
National Monument

New Mexico

~i:na:~l~;;~

t-'111., r,:.; l,hrwm•nt

USA
Puerto

Santa Teresa Border Wall
(Completed Oct 2018)

LINITEO t fATF;;
f\.·lf:,11/( ,(.

t~ If: Xie

January 21 , 2017:
Male Mexican wolf (M1425)
crosses into the US
from location in Chihuahua , Mexico
about 150 miles to the south

.4

Jan 24 , 2017 :

-

-------1-1 over Mt. Cristo Reyto Mexico
Wolf crosses back
(No barrier exists here)

Chihuahua
Jan 25 , 2017 :
Wolf begins trek back
to mountains of Chihuahua after
traveling 100 miles in the US

N

WE
+
s

-r-

EXHIBIT B

o rr~no

New Mexico State Trust Lands in
El Paso Project 1 Area
-

. os An gefe:
L

Afizoh'a

'" Dieg 0

Bollard

+
0

J'ho en;x

NM State Lands West Potrillo Wilderness Study

Ne~ M1
exico

Tucson

'/Ju an.i ?._

NM State Lands Alden Lava Wilderness Study

+

Oklahom

California

Pedestrian fencing

=-=- Proposed El Paso 1 Pedestrian

Colorado

lo: Vegas

Santa Teresa Wall (OHS Waiver 1/22/2018)

-

Utah

Nevada

',

\'-...

~ C>

IPoso

_r-•
f

NM State Lands in El Paso 1 Project Area

() NM Game Mgt Unit 25

',

...

El Paso 1
Project Area
New Mexico

w
+,
N

Alden Lava Flow Wilderness
Study Area

j

Mexico

Chihuahua
Z3

0 2.5 5

10

15

20

-=-=---c:::==:::1111-• Miles

Sources: Mex ican Wolf Binational Recovery Team, IBWC, INEGI , ESRI

~

s

EXHIBIT 7

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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 PARTIAL SUMMARY
JUDGMENT REGARDING SECTION
284, 8005, AND 9002

Decl. of Sula Elizabeth Vanderplank ISO Mot. For Partial Summ. J. (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 Partial Summ. J. (4:19-cv-00872-HSG)

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I, Sula Elizabeth Vanderplank, declare as follows:

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1.

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

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

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executed a declaration dated May 28, 2019 in support of the Plaintiff State of California’s

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Preliminary Injunction Concerning El Centro Project 1 that was substantively the same as this

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declaration.

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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
rare plants in Baja California, Mexico, and in particular, on plant species that are rare on both
sides of the U.S./Mexico border. Specifically, we are developing conservation seed banks for
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).

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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.
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.
11.

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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12.

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
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

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

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
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.
20.

degree and immediacy of threat)

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0.2-Moderately threatened in California (20-80% occurrences threatened / moderate

14

degree and immediacy of threat)

15

0.3-Not very threatened in California (less than 20% of occurrences threatened / low

16

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Each rare plant also receives a threat rank, follow its listing designation:
0.1-Seriously threatened in California (over 80% of occurrences threatened / high

12

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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

11

17

All of the plants constituting California Rare Plant Rank 1A, 1B, 2A, 2B, and 3 are

degree and immediacy of threat or no current threats known)
21.

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.

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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
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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23.

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

15

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

16

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

18

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

19

24.

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

21

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

22

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

23

(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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Decl. of Sula Elizabeth Vanderplank ISO Mot. For Partial Summ. J. (4:19-cv-00872-HSG)

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Status

Family

Genus

Species

2

Indirect

Euphorbiaceae

Euphorbia

platysperma

3

Indirect

Fabaceae

Acmispon

haydonii

4

Direct

Fabaceae

Lupinus

excubitus

medius

Indirect

Fabaceae

Astragalus

insularis

harwoodii

Indirect

Fabaceae

Astragalus

sabulonum

Indirect

Apocynaceae

Matelea

parvifolia

Indirect

Asteraceae

Malperia

tenuis

9

Direct

Boraginaceae

Pholistoma

auritum

10

Direct

Fabaceae

Calliandra

eriophylla

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

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

Direct

Cactaceae

Cylindropuntia

wolfii

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

19

Indirect

Juncaceae

Juncus

cooperi

20

Indirect

Martyniaceae

Proboscidea

althaeifolia

21

Direct

Nyctaginaceae

Mirabilis

tenuiloba

22

Direct

Phrymaceae

Diplacus

aridus

23

Direct

Ranunculaceae

Delphinium

parishii

5
6
7
8

11
12
13
14
15
16

InfraName

arizonicum

leopoldii

17
18

24

25.

subglobosum

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

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

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conservation concern in the state of California, including at least 3 plants on list 1B (plants that

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are globally rare, threatened or endangered) and 10 plants on list 2B (plants that are rare,

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threatened or endangered in California), for a total of 13 species eligible for listing under the

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8
Decl. of Sula Elizabeth Vanderplank ISO Mot. For Partial Summ. J. (4:19-cv-00872-HSG)

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2
3
4
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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
true and correct.
Executed on June _10_, 2019, at San Diego, California.

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Sula Elizabeth Vanderplank
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9
Decl. of Sula Elizabeth Vanderplank ISO Mot. For Partial Summ. J. (4:19-cv-00872-HSG)

EXHIBIT A

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EXHIBIT 8

1

XAVIER BECERRA

Attorney General of California

2
3

ROBERT W. BYRNE
SALLY MAGNANI
MICHAEL L. NEWMAN

Senior Assistant Attorneys General
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5

MICHAEL P. CAY ABAN
CHRISTINE CHUANG
EDWARD H. OCHOA

Supervising Deputy Attorneys General
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7
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9
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II

REA THER C. LESLIE
JANELLE M. SMITH
JAMES F. ZAHRADKA II
LEE L 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;

DECLARATION OF SUNALEI
STEWART IN SUPPORT OF MOTION
FOR PARTIAL SUMMARY JUDGMENT
REGARDING SECTIONS 284, 8005, AND
9002

Plaintiffs,

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27

4:19-cv-00872-HSG

v.

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Deel. of S. Stewart ISO Mot. For Partial Summ. J. (4: 19-cv-00872-HSG)

1

2

3
4
5
6
7
8
9

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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; MARKT.
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; KIRST JEN M. NIELSEN, in
her official capacity as Secretary of Homeland
Security;

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Defendants.

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16

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Deel. ofS. Stewatt ISO Mot. For Partial Summ. J. (4:19-cv-00872-HSG)

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2

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I, Sunalei Stewart, declare as follows:

1.

I serve as Deputy Commissioner of Operations at the New Mexico State Land

Office (SLO). I have personal knowledge of the facts set f01th in this declaration. If called as a
witness, I could and would testify competently to the matters set forth below.
2.

On behalf of the New Mexico Commissioner of Public Lands, Stephanie Garcia

Richard, I transmitted a comment letter to United States Customs and Border Protection (CBP) on
May 8, 2019. A copy of the Commissioner's comment letter is attached as Exhibit A.
3.

To date, SLO has not received any substantive response to its May 8, 2019

comment letter from CBP.

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I declare under penalty of pe1jury under the laws of the United States that the foregoing is true
and conect.
Executed on June 12, 2019, at Santa Fe, New Mexico.

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Sunalei Stewart

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1
Deel. of Sunalei Stewart ISO Mot. For Partial Summ. J. (4: 19-cv-00872-HSG)

EXHIBIT A

Stephanie Garcia Richard
COMMISSIONER

State of New Mexico
Commissioner of Public Lands

COMMISSIONER’S
OFFICE
Phone [phone]
Fax [phone]
www.nmstatelands.org

310 OLD SANTA FE TRAIL
P.O. BOX 1148
SANTA FE, NEW MEXICO 87504-1148

May 8, 2019
Via email and first-class mail
Paul Enriquez, Real Estate and
Environment Director
Border Wall Program Management Office
U.S. Customs and Border Protection
1300 Pennsylvania Avenue NW
Washington, DC 20229-1100

Dear Mr. Enriquez:
This letter responds to your correspondence dated April 8, 2019 requesting input
concerning the stated plans of U.S. Customs and Border Protection (CBP) to build bollard walls
along two sections of the U.S.-Mexico border in Luna and Doña Ana Counties in New Mexico.
New Mexico State Land Office
The New Mexico State Land Office is an independent state agency responsible for
administering nine million acres of surface and 13 million acres of subsurface estate for the
beneficiaries of the state land trust, which include public schools, universities, hospitals and other
important public institutions. New Mexico acquired much of its state trust land under the
Ferguson Act of 1898 and the Enabling Act of 1910, with additional lands obtained through
subsequent conveyances and exchanges.
As New Mexico’s Commissioner of Public Lands, it is my duty to optimize revenue for
New Mexico schoolchildren and other beneficiaries while protecting the health of state trust lands
for future generations. By leasing state trust lands for a wide array of uses, the State Land Office
generates hundreds of millions of dollars each year to support the trust beneficiaries.
The State Land Office manages over a dozen tracts of land on or immediately adjacent to
the U.S.-Mexico border, including over 29,000 acres presently leased for ranching within CBP’s

Paul Enriquez
U.S. Customs and Border Protection
Page 2

project footprint. As the public official responsible for the wise and sustainable management of
these lands, I have serious concerns about the federal government’s decision to ignore numerous
environmental and cultural resource protection laws to speed construction activity along the
border. I also write to urge CBP to act with greater transparency and commitment to public
accountability by providing the important and so-far-unexplained details of how it will oversee its
construction project along the border. In the absence of any environmental planning document or
even a meaningful construction proposal, all available information indicates that CBP’s plans will
cause unnecessary and lasting harm to rangeland, economic development and the environment in
the borderlands of Luna and Doña Ana Counties.
Encroachment on State Trust Lands During Construction
CBP has stated its plans to construct two non-contiguous segments of “vehicle barrier
replacement” along the border, “El Paso Project 1” and “El Paso Project 2.” According to the
Department of Homeland Security, “El Paso Project 1” includes 46 miles of barrier construction
“beginning 17.5 miles west of the Columbus Port of Entry continuing east in non-contiguous
segments to approximately 35 miles east of the Columbus Port of Entry,” in Luna and Doña Ana
Counties. “El Paso Project 2” includes 23.5 miles of barrier construction in three non-contiguous
segments in Hidalgo and Luna Counties. February 25, 2019 memorandum from Department of
Homeland Security to Department of Defense, “Request for Assistance Pursuant to 10 U.S.C. §
284,” at 9.
In your April 8, 2019 letter, you indicate that “[m]ore detailed information about the
proposed border barrier project location and design is enclosed.” That “more detailed
information,” however, is limited to a two-page attachment with a graphic indicating the
approximate mileage of border wall construction in each of our two affected counties, and a
schematic map with no scale and very few features depicted. CBP has not informed the public
about the duration of CBP’s planned construction, the number of personnel that will occupy border
areas, the siting of power lines and lighting, location of staging areas, points of ingress and egress,
and other details critical to any reasoned assessment of the impact of this construction project on
the environment and on property owners along the border. I urge you to quickly correct this
troubling lack of information.
In the absence of tangible information about “El Paso Project 1,” the State Land Office and
other stakeholders, including border communities, must examine the details of CBP’s past ventures
along the U.S.-Mexico border. CBP’s plan for a different section of border wall construction (in
Dona Ana County near the port of Santa Teresa, east of “El Paso Project 1”) stated that the agency
would construct “six staging areas totaling approximately 24.6 acres outside the Roosevelt
Reservation … to facilitate operation of equipment, staging of materials, and construction, and
three existing access roads totaling approximately 6.5 miles will be used to access the project
corridor.” Department of Homeland Security, U.S. Customs and Border Protection, Environmental

Paul Enriquez
U.S. Customs and Border Protection
Page 3

Stewardship Plan for Replacement, Operation and Maintenance of Tactical Infrastructure (March
2018) (“ESP”) at CS-1. Notably, the 1907 proclamation that President Roosevelt issued reserving
to the United States a sixty-foot strip along the border (commonly called the “Roosevelt
Reservation”) provides that the reserved land is “set apart as a public reservation …. [and] may be
used for public highways but for no other purpose whatsoever.” See Proclamation 758, Setting
Apart as Public Lands a Strip of Land on the Mexican Frontier (1907). CBP’s imminent
construction of a 46-mile border wall, presumably with ancillary infrastructure, is not consistent
with the sole lawful purpose permitted by the very proclamation upon which CBP relies to assert
control over lands along most of the border in Luna and Doña Ana Counties.
With respect to “El Paso Project 1,” CBP has not revealed the locations of its staging areas,
or for road access to its 46-mile long construction site. CBP has not obtained any easement for use
of state trust lands for staging areas, for the construction of new roads, or for the siting of power
lines or other infrastructure, and since I began my service as Commissioner of Public Lands your
agency has not contacted me or my staff for such permission. CBP’s unauthorized use of state trust
lands for these purposes would be a serious and actionable violation of law. I urge CBP to
communicate openly with the State Land Office regarding its operational plans and the impact that
its construction activities will have on state trust lands.
Long-Term Impacts to State Trust Lands
Even if CBP’s wall-building does not directly trespass on state trust lands – a determination
that cannot accurately be made at this point in time, since CBP has released so little information
about its plans – the intended wall project will have lasting and negative implications for state trust
lands that are close as sixty feet to the construction site.
Removal of current sections of fencing, and installation of the new wall material, will
require digging, excavating, and trenching, destroying forage and eroding soils. CBP has not
explained the intensity of vehicle traffic that will be required to accomplish its stated objectives,
but the scope of the intended project would require the use of heavy earthmoving equipment for
an extended period of time along the border, which we expect to have a negative impact on air
quality as well as surface resources. Pile driving, welding, and cutting will create metal shavings
and other waste that may contaminate soil and water in the area. Although CBP does not elaborate
on any road building or upgrading it plans to conduct in support of its wall-building, any
construction of a new road will likely result in additional surface disturbance and generate
pollutants. In addition, new roadways will likely increase storm water runoff and therefore may
pose a threat to water quality in the project area. CBP has not disclosed its plans for power lines
or other infrastructure that may create additional surface disturbance, air pollution, and habitat
disruption.
The two-page attachment to your April 8, 2019 letter states that the new bollard wall will

Paul Enriquez
U.S. Customs and Border Protection
Page 4

also include LED lighting and unspecified “detection technology,” and states that CBP “will work
with the appropriate stakeholders to develop solutions to avoid excess lighting beyond the existing
patrol road.” To date, the State Land Office has not received any information from CBP about
your agency’s plans for mitigating light pollution along the approximately 46 miles of new
construction. Without any description of the specific light sources, frequency or intensity that
CBP intends to use, it is impossible to make any precise analysis of the severity of this trespass on
immediately adjacent state trust lands.
Lasting Damage to Habitat and Threatened Species
CBP has agreed that it “will be responsible for any applicable environmental planning and
compliance to include stakeholder outreach and consultation associated with the [border wall
construction].” February 25, 2019 Memorandum from Department of Homeland Security to
Department of Defense, “Request for Assistance Pursuant to 10 U.S.C. § 284,” at 2. To date, CBP
has not engaged in any outreach and consultation with the State Land Office, or to my knowledge
with other communities or organizations in New Mexico that will be affected by this massive
construction project. There is no publicly available evidence that CBP has engaged in any
environmental planning for its imminent wall-building project.
Although CBP has presented no evaluative study on the environmental impacts of “El Paso
Project 1,” a number of scientists, advocates and community members have done so. An analysis
co-authored by Stanford University biologists Paul Ehrlich and Rodolfo Dirzo concluded that
border wall construction is “reducing the area, quality, and connectivity of plant and animal
habitats and [is] compromising more than a century of binational investment in conservation
….The border wall threatens some populations by degrading landscape connectivity. Physical
barriers prevent or discourage animals from accessing food, water, mates, and other critical
resources by disrupting annual or seasonal migration and dispersal routes.” See Robert Peters et
al., “Nature Divided, Scientists United: US-Mexico Border Wall Threatens Biodiversity and
Binational Conservation,” BioScience, Vol. 68, No. 10 (Oct. 2018) at 740. Aggressive border wall
construction will likely harm endangered or threatened species in New Mexico including the
Mexican gray wolf. Id. at 741. New Mexico State University professor Gary Roemer, who has
conducted extensive fieldwork in the New Mexico borderlands, confirms that “border walls sever
wildlife connectivity.”
Although local advocacy organizations like the Center for Biological Diversity and
Southwest Environmental Center have undertaken thoughtful analysis of the dangers that border
wall construction poses to wildlife, your fellow federal agencies also have sounded the alarm. As
you are likely aware, a September 2017 draft letter addressed to you from the U.S. Fish and
Wildlife Service’s Southwest Regional Office warned that “the Service recommends considering
technology, additional border patrols agents and other mechanisms, instead of installation of levee
or bollard walls” due to reduction of habitat connectivity.

Paul Enriquez
U.S. Customs and Border Protection
Page 5

The environmental harms that CBP’s bollard wall threatens are not limited to habitat
fragmentation. The sparse information CBP has shared with New Mexicans indicates that your
agency plans to flood the border wall with high-intensity lighting. In 1999, New Mexico enacted
the Night Sky Protection Act “to preserve and enhance the state’s dark sky while promoting safety,
conserving energy and preserving the environment for astronomy.” NMSA 1978, § 74-12-2. The
prospect of constant and intensive illumination along 46 miles of border will impair this carefully
crafted balance. As the U.S. Fish and Wildlife Service concluded, “[i]ncreased lighting at night,
along the wall, will likely have negative impacts on ocelot, jaguarondi and other nocturnal
species,” and urged CBP to more carefully analyze the effects of lighting to nocturnal wildlife.
CBP does not appear to have accepted this professional assessment.
Perhaps most troubling, while your April 8, 2019 letter states CBP’s desire to consider
environmental impacts and conduct environmental site assessments, the Department of Homeland
Security has exempted itself (including its operational components like CBP) from all
environmental and cultural resource protection laws in the planning and construction of border
wall in Luna and Doña Ana Counties. It is difficult to understand how the Department of Homeland
Security and its components can act in an environmentally responsible manner when the
Department has authorized itself to ignore landmark protections like the Endangered Species Act,
the National Environmental Policy Act, the Clean Water Act, the National Fish and Wildlife Act,
and the Federal Land Policy and Management Act without any apparent consequences.
These environmental risks are a serious concern to me because my responsibility is not only to
maximize revenue for the trust beneficiaries but to do so sustainably. The State Land Office
must continue to honor its duty to the trust and it can only do so if it protects the integrity and
value of its lands for future generations. Responsible land stewardship requires, at a minimum,
extensive and careful evaluation of the numerous risks posed by CBP’s border wall plans before
ground is broken.
Sincerely,

Stephanie Garcia Richard
Commissioner of Public Lands