State of California et al v. Trump et al

Filing 220

MOTION for Partial Summary Judgment Re Section 2808 and NEPA filed by Commonwealth of Virginia, State of California, State of Colorado, State of Hawaii, State of Maryland, State of New Mexico, State of New York, State of Oregon, State of Wisconsin. Motion Hearing set for 11/20/2019 10:00 AM in Oakland, Courtroom 2, 4th Floor before Judge Haywood S Gilliam Jr.. Responses due by 10/25/2019. Replies due by 11/1/2019. (Attachments: # 1 Appendix of Declarations re: Environmental Harms, # 2 Declaration of Colonel William Green, # 3 Declaration of Alison Lynn Reaser, # 4 Declaration of Heather Leslie, # 5 Request for Judicial Notice ISO Mot for Partial Summary Judgment Re Section 2808 and NEPA, # 6 Proposed Order Granting Motion for Partial Summary Judgment, # 7 Certificate/Proof of Service)(Leslie, Heather) (Filed on 10/11/2019)

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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
REGARDING ENVIRONMENTAL
v.
HARMS IN SUPPORT OF PLAINTIFFS’
MOTION FOR PARTIAL SUMMARY
JUDGMENT REGARDING SECTION
DONALD J. TRUMP, in his official
2808 AND NEPA
capacity as President of the United States of
America et al.;
Date:
November 20, 2019
Time:
10:00 am
Defendants. Judge:
Honorable Haywood S. Gilliam,
Jr.
Trial Date:
None Set
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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David Gibson (California Regional Water Quality Control Board, San
Diego Region)

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Christopher D. Nagano (Center for Biological Diversity)

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Myles B. Traphagen (Wildlands Network)

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Sula Elizabeth Vanderplank (San Diego Zoo Global)

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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
BRIAN J. BILFORD
SPARSH S. KHANDESHI
LEE I. SHERMAN
JANELLE M. SMITH
JAMES F. ZAHRADKA II
HEATHER C. LESLIE (SBN 305095)
Deputy Attorneys General
1300 I. St., Suite 125
P.O. Box 944255
Sacramento, CA 94244
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 KEVIN B. CLARK
IN SUPPORT OF PARTIAL MOTION
FOR SUMMARY JUDGMENT
REGARDING SECTION 2808
PROJECTS

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Plaintiffs,
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Decl. of Kevin B. Clark ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)

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v.
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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 Partial Motion for Summary Judgment (4:19-cv-00872-HSG)

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I, Kevin B. Clark, declare as follows:

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1.

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

witness, I could and would testify competently to the matters set forth below.
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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, Least Bell’s Vireo, Western Yellow-billed Cuckoo, and California

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Gnatcatcher. I am also permitted to mist-net, handle, and band migratory birds.

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

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Wildlife Service (USFWS), based in Carlsbad, California. In this capacity, I worked on the

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recovery of endangered species, including the California Gnatcatcher and California Least Tern,

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and was the regional recovery coordinator for the threatened Western Snowy Plover. I was the

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primary author of the 2003 designation of critical habitat for the California Gnatcatcher, which
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Decl. of Kevin B. Clark ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)

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included a proposed rulemaking reclassifying the species as a Distinct Population Segment under

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the Endangered Species Act (68 Fed. Reg. 20228). As part of this analysis, I thoroughly

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reviewed all the pertinent literature and survey information for the species, conducted field

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surveys for the bird and its habitat requirements, and analyzed and finalized maps describing the

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range of the species and its essential habitat locations. In my capacity as a Fish and Wildlife

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Biologist I also participated in consultations required under Section 7 of the Endangered Species

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Act, which are required whenever a federal project may impact threatened or endangered species.

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

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 proposed border-infrastructure projects including San Diego

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Project 4, Yuma Project 6, and San Diego Project 11, as outlined in the table attached as Exhibit 1

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to the Declaration of Heather Leslie (“2808 Project Table”), and as described in the “List of

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Military Construction Projects” that Defendants filed in this matter on September 3, 2019, [ECF

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Doc. No. 206-2] (“2808 Project List”). These projects involve the construction of primary and

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secondary pedestrian fencing that will be 18 to 30 feet tall, based on the bollard-style pedestrian

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fencing used for other recent border-barrier projects that Defendants have undertaken. San Diego

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Project 4, Yuma Project 6, and San Diego Project 11 would also include the construction of roads

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and installation of lighting.
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Decl. of Kevin B. Clark ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)

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8.

The Department of Homeland Security (“DHS”) has not provided detailed

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information regarding these projects. It is presumed that the projects will be similar to recently

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completed border wall projects in other portions of the California border, and will include a new

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bollard wall from 18 to 30 feet high, construction of a 20-foot wide all-weather road, and assorted

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temporary roads for access to the work sites. As with any construction project of this scale, it is

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assumed that extensive areas for equipment staging and materials storage will also be required in

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the vicinity of the project area at the border.

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

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 San Diego 4, San

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Diego 11, and Yuma project sites, and to the border region more generally, to illustrate how these

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projects will cause 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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Decl. of Kevin B. Clark ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)

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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 U.S.

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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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Effects of the Proposed San Diego Project 4

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San Diego Project 4 proposes the construction of 1.5 miles of new primary

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pedestrian fencing and 2 miles of new secondary fencing starting 3.6 miles east of the Otay Mesa

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Port of Entry and extending to the east. Extensive trenching, construction of roads, and staging of

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materials would also presumably be necessary to construct the proposed border fence in this

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location. The proposed construction area would cut through designated critical habitat for the

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endangered Quino Checkerspot Butterfly, as well as the federally designated Otay Mountain

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Wilderness Area.

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I conducted a site visit to the proposed construction area on October 2, 2019.

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During this visit I evaluated the habitat conditions of the work area, and observed access roads

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and staging areas.

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The endangered Quino Checkerspot Butterfly (Euphydryas editha quino) has been
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documented to occur within the project area. This butterfly is restricted to a few locations in

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Riverside and San Diego Counties and is found in open scrub and grassland areas that support its

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primary host plant, dwarf plantain (Plantago erecta). Dwarf plantain is a small annual herb found

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in open patches of bare ground. Adult Quino Checkerspot Butterflies seek out patches of dwarf

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plantain to lay their eggs, as the caterpillars are restricted to feeding on this host plant. After

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hatching, the caterpillars grow rapidly while feeding in patches of plantain, but if dry conditions

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occur, these caterpillars have the ability to “diapause” or enter biological stasis, where they bury

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themselves in the leaf litter, sometimes for years, until suitable conditions arrive again. The

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Quino Checkerspot Butterfly uses this strategy to persist in habitats that are prone to extended

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droughts. Quino can therefore persist in some areas where it has not been seen in years, but when

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suitable rains arrive and the dwarf plantain is in abundance, caterpillars in large numbers can

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emerge in short periods of time to take advantage of the conditions, resulting in brief population

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spikes. This is important because a lack of sightings in any given year does not necessarily mean

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that the species is not present.

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According to the California Natural Diversity Database, Quino Checkerspot

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Butterflies have been documented immediately adjacent to the border fence and on the

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surrounding slopes to the north, well within the proposed project area.

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The western third of the project area cuts through Quino Checkerspot Butterfly

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designated critical habitat. The presence of critical habitat and past occurrences of the species in

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the area indicates that the species is present, and the proposed work, including resurfacing of the

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roadways where the butterfly and its host plant have been found, will crush and bury diapausing

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larvae and host plant seed bank in the area. These activities will cause irreparable harm to the

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Quino Checkerspot Butterfly population and its critical habitat on Otay Mesa.

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The Coastal California Gnatcatcher (Polioptila californica californica; California

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Gnatcatcher) is a federally threatened species restricted to coastal southern California in areas of

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open coastal sage scrub vegetation. California gnatcatchers are obligate insectivores (meaning

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that they can only eat insects) that forage by “foliage gleaning”, a method of visually finding

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insects while actively searching through vegetation. These birds utilize shrub species found
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Decl. of Kevin B. Clark ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)

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within coastal sage scrub vegetation for foraging. One prominent species utilized by the

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California gnatcatcher for foraging is coastal sagebrush (Artemisia californica) which commonly

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occurs in coastal sage scrub adjacent to the proposed border wall. This shrub is considered a

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primary constituent element within California gnatcatcher critical habitat. California Gnatcatcher

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territories average approximately 9 acres, and expand in the winter to take in a larger foraging

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area, often by as much as 80%.

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The California Natural Diversity Database documents California Gnatcatchers as

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occurring within the project area. During a site visit October 2, 2019, I detected a California

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Gnatcatcher approximately two miles northwest of the project, but numerous pairs have been

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detected much closer. Habitat on the slopes adjacent to the proposed work and staging areas is

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suitable for this species, consisting of coastal sage scrub dominated by shrubs such as California

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sagebrush, and it is expected that this species is currently found in the work area.

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The construction of a border wall fence and related road network will destroy

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essential habitat for numerous gnatcatcher pairs due to vegetation clearance activities that will be

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required to construct both the primary and secondary fences. Additionally, the steep topography

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of this area will require new road networks for access to the work areas, and significant cut and

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fill operations will be undertaken, as was needed in previous border fence construction projects in

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and around Otay Mountain. These destructive construction activities will result in significant

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displacement of California gnatcatchers into already diminished and limited habitat areas. As

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these habitats are already occupied by adjacent pairs, the affected gnatcatchers will either be

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required to move or challenge adjacent pairs for their occupied territories. The result will be a

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substantial reduction of the population in the area, and irreparable harm to the species and its

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habitat.

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The Western Burrowing Owl (Athene cunicularia hypugaea, Burrowing Owl) is a

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burrow-inhabiting small owl restricted to the western U.S. and northern Mexico, where it occurs

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in declining numbers in open grasslands and agricultural areas. Diurnal (daytime) activities of

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owls are often restricted to within 250 meters of the nest burrow. However, nocturnal foraging

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activities extend out much farther and average home range sizes are determined by the extent and
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Decl. of Kevin B. Clark ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)

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quality of foraging habitat. A study in San Diego County found that burrowing owl home ranges

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averaged 20 acres. A study of two urban sites in northern California determined that home ranges

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averaged 22 acres.

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The Burrowing Owl is considered a Bird of Conservation Concern by the U.S.

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Fish and Wildlife Service, as well as a Species of Special Concern by the California Department

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of Fish and Wildlife. The 1988 amendment to the Fish and Wildlife Conservation Act mandates

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the USFWS to “identify species, subspecies, and populations of all migratory nongame birds that,

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without additional conservation actions, are likely to become candidates for listing under the

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Endangered Species Act (ESA) of 1973.” Birds identified as such are deemed priorities for

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conservation actions, and the lists are consulted for actions taken on Federal lands in accordance

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with Executive Order 13186, “Responsibilities of Federal agencies to protect migratory birds”.

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BCC species also receive priority attention in the USFWS when allocating research, monitoring,

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and management funding. California Species of Special Concern are defined as species or

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subspecies that are experiencing population declines or range retractions that, if continued, could

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qualify them for state threatened or endangered status. According to a California Department of

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Fish and Wildlife Report, in California, threat factors affecting Burrowing Owl populations

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include “habitat loss, degradation and modification, and eradication of ground squirrels resulting

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in a loss of suitable burrows required by burrowing owls for nesting, protection from predators,

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and shelter.”

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As stated in the draft Burrowing Owl Conservation and Management Plan for San

Diego County:

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In southern California, the western burrowing owl . . . has experienced declining
populations for decades. This species was once widespread and abundant in San Diego
County during the breeding season. The San Diego Bird Atlas provides a detailed account
of declines in the County population since the 1920s, when the owl was common along an
elevational gradient extending from coast to foothills. The number of occupied sites had
declined by the 1970s, although breeding owls could still be found in coastal locations . . .
as well as several inland sites that are no longer occupied by BUOW [Burrowing Owls].
Nearly all coastal populations were extirpated [meaning a local population extinction] by
1997 due to intensive urban development and habitat fragmentation. Extensive field
surveys conducted in the years 1997-2002 for the San Diego Bird Atlas documented five
locations of breeding pairs. In the 15 years since those surveys, the number of breeding
pairs has dropped to the point that breeding pairs are now only detected in scattered sites
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on Otay Mesa.
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A Memorandum dated September 25, 2017, that I have reviewed and was written

by U.S. Customs and Border Protection staff, states that during a one-day survey in August 2017,
immediately west of the proposed construction area, contract biologists found 37 active
Burrowing Owl burrows and 19 individual owls. See Memorandum by Border Patrol staff, dated
Sept. 25, 2017, and attached as Exhibit A to this declaration. On another property further to the
west of this project, also along the border fence, nine Burrowing Owl pairs utilizing 165 acres of
habitat were found. This area of eastern Otay Mesa is the last stronghold for the species in the
County, and further loss of both occupied burrows and foraging habitat will only hasten its
decline.
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The proposed construction activities, while still undefined and poorly documented,

include disturbance to foraging habitat and occupied burrows through the extensive road work,
and vegetation clearing and trenching along the primary and secondary border fences. Burrowing
Owls are especially sensitive to construction disturbance due to their unique behavior. During
daylight hours, they stand guard over their burrow, which may include eggs and young, and are
easily flushed by adjacent human disturbance or activities. Repeated flushing during periods of
incubation or while feeding chicks has extremely negative effects, including cooling of eggs,
reduced feeding of chicks, or increased exposure to predators, reducing the percentage of chicks
surviving to adulthood.
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Besides direct flushing, the extensive clearing of vegetation, as would be necessary

for the construction of staging areas for materials and road access to the site, would remove
foraging habitat from this owl population. Due to the high density of owls in such a relatively
restricted area, with nineteen individual owls observed during a one-day survey, loss of foraging
habitat would necessarily cause additional competition for resources among the owls, leading to
the displacement of some younger or less aggressive birds. Displaced birds are subject to
increased mortality rates as they search the area for suitable unoccupied habitat. These activities
would therefore hasten the decline of this last breeding population in coastal southern California.

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Decl. of Kevin B. Clark ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)

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27.

In southern California, vernal pools are shallow depressions overlying

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impermeable substrates, typically clay hardpans, which fill with winter rainfall and retain ponded

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water through the spring. These unique seasonal wetlands are too short-lived to harbor fish, and

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therefore support specialized species that cannot survive fish predation, but can reproduce quickly

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in the rapidly drying pools. Species such as fairy shrimp, spadefoot toads, and specialized plants

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with both aquatic and terrestrial components of their life cycle can only be found in vernal pools.

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In Southern California, due to the massive destruction of vernal pools on flat coastal mesas

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(upwards of 90% have been destroyed), several of these species have now been protected as

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Endangered Species under the Federal Endangered Species Act.

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Fairy shrimp reproduce by means of hardened “cysts”, analogous to hard-shelled

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plant seeds, which are released by the female after mating. These cysts remain in the soil for

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extended periods, potentially years, until the right combination of soil moisture and temperature

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returns to stimulate hatching. Only a percentage of cysts hatch during any particular period with

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suitable conditions, therefore, “cyst banks” analogous to seed banks, develop in the soil

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consisting of viable but unhatched cysts from numerous previous generations in a state of

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diapause, or biological stasis, awaiting future suitable hatching conditions.

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29.

Two federally endangered species of fairy shrimp inhabit the border zone in Otay

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Mesa. The San Diego Fairy Shrimp (Branchinecta sandiegonensis) is restricted to vernal pools

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and other temporary aquatic environments in San Diego, Orange, and Riverside Counties. It can

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survive in shallow, short-lived pools that fill for only a few weeks. Its short life cycle allows it to

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persist in pools that have been damaged or disturbed, and in some cases it can survive in pools on,

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or adjacent to, dirt roads bisecting vernal pool landscapes. Despite this tolerance for some

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disturbance, the majority of vernal pools in southern California that would have supported this

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species have now been irreparably lost, and it only survives in scattered parks and preserves that

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are managed for vernal pool species.

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The second endangered fairy shrimp inhabiting the border zone in Otay Mesa is

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the Riverside Fairy Shrimp (Streptocephalus woottoni). In contrast to the wider variety and

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distribution of pools inhabited by the San Diego Fairy Shrimp, the Riverside Fairy Shrimp can
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only occur in deeper pools holding water for extended periods of time. Upon listing as an

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endangered species in 1993, Riverside fairy shrimp were known to inhabit 9 vernal pool

3

complexes within Riverside, Orange, and San Diego counties, and Baja California, Mexico.

4

Extensive survey work since its listing as an Endangered Species have now documented 45

5

known occupied vernal pool complexes, but it is still restricted to the same geographic

6

distribution in southern California.

7

31.

Past border-barrier construction activities to the west of where San Diego Project 4

8

is being constructed included improvements to access roads to facilitate project construction. For

9

example, in order to construct the wall prototypes access roads were repaired and improved to

10

support the movement of heavy trucks and equipment to the prototype construction area from the

11

nearest paved roads to the west. That road work consisted of clearing vegetation, filling potholes,

12

leveling and grading, and stabilizing the road with aggregate or other stabilized road surface

13

course. See Memorandum by Border Patrol staff, dated Sept. 25, 2017, and attached as Exhibit A

14

to this declaration. It is clear from the site visit conducted on October 2, 2019, as well as analysis

15

of aerial imagery, that the only feasible access to the western portion of the San Diego Project 4

16

construction area is on unimproved dirt roads that lead from the prototype area to the west. It is

17

expected that the current proposal for San Diego Project 4 would conduct similar road grading

18

activities through this area as it is the primary means of accessing the construction zone. The

19

landscape in the immediate vicinity of the prototype area and along the dirt roads to the east and

20

north, leading to San Diego 4, supports numerous vernal pools. Several of these pools occur

21

within and adjacent to dirt roads that will be utilized by heavy equipment, and where additional

22

grading, vegetation clearing and filling may occur. This roadwork would damage vernal pools

23

and cause irreparable harm to the fairy shrimp and other vernal pool species.

24

32.

Adjacent to the border wall zone on Otay Mesa, several recent biological surveys

25

on private properties have found that the entire road network within, and adjacent to, the work

26

area contains vernal pools and numerous rare and endangered species associated with them. For

27

example, the access roads to the west of the project area, which are the main conduits for the

28

heavy equipment and materials being brought onto the site, support rare and endangered species
10
Decl. of Kevin B. Clark ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)

1

such as Riverside Fairy Shrimp, San Diego fairy Shrimp, Quino Checkerspot Butterfly, Western

2

Spadefoot Toad, and San Diego Button Celery. Surveys on private parcels to the immediate north

3

and west of the construction area depict numerous vernal pools occupied by both fairy shrimp

4

species. Surveys for the Otay Business Park development, immediately north of the border fence,

5

found San Diego Fairy Shrimp at ten sites, including nine pools along the road network

6

immediately north of the secondary fence, to the west of the construction area. This area is also

7

designated as critical habitat for the species. Riverside Fairy shrimp were also found in three

8

pools, all of which occur along the main east-west dirt road that would be used for access to the

9

construction area. Also found within these same pools are other federally endangered species,

10

such as San Diego Button Celery (Eryngium aristulatum var. parishii) and Spreading Navarretia

11

(Navarretia fossalis).

12

33.

These species are persisting in and adjacent to the disturbed dirt roadways due to

13

their brief reproduction period when the pools are full, and when vehicles avoid these pools in

14

order to avoid getting stuck in the deep-clay mud. However, once road modifications of grading,

15

“pothole filling”, and repaving with aggregate occur, these pools will cease to refill with water,

16

and the cysts and seeds embedded in the soil will be crushed and buried, preventing their hatching

17

in future rain events. These actions will cause irreparable harm to these vernal pool species, and

18

reduce the potential for recovery of the species, as mandated under the Federal Endangered

19

Species Act.

20

Effects of the Proposed San Diego Project 11

21

34.

San Diego Project 11 proposes the construction of three miles of new secondary

22

pedestrian fencing starting two miles west of the Tecate Port Of Entry and extending 1.5 miles

23

east of the port. The project footprint here is characterized by natural habitats with minimal

24

disturbance, and the proposed fencing here will harm multiple species of lizards, birds and

25

mammals. The Quino Checkerspot Butterfly, discussed above, has been reported from this area.

26

In addition to the to the butterfly, numerous rare species occur in the project area and would be

27

harmed or killed by the extensive trenching, construction of roads, and staging of materials

28

necessary to construct the proposed border fence. These include:
11
Decl. of Kevin B. Clark ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)

1

Baja California coachwhip (CA State Species of Special Concern)

2

Coast patch-nosed snake (CA State Species of Special Concern)

3
4

Red-diamond rattlesnake (CA State Species of Special Concern)
Cope’s leopard lizard (CA State Species of Special Concern)

5
Coast horned lizard (CA State Species of Special Concern)
6
7
8
9

San Diego banded gecko (CA State Species of Special Concern)
Coastal whiptail (CA State Species of Special Concern)
Gray Vireo (CA State Species of Special Concern)

10

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

11

Pallid bat (CA State Species of Special Concern)

12

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

13
14

Western Yellow bat (CA State Species of Special Concern)
Western mastiff bat (CA State Species of Special Concern)

15
Pocketed free-tailed bat (CA State Species of Special Concern)
16
17
18

Big free-tailed bat (CA State Species of Special Concern)
San Diego black-tailed jackrabbit (CA State Species of Special Concern)

19

Dulzura pocket mouse (CA State Species of Special Concern)

20

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

21

Jacumba pocket mouse (CA State Species of Special Concern)

22

San Diego desert woodrat (CA State Species of Special Concern)

23
24

Southern grasshopper mouse (CA State Species of Special Concern)
American badger (CA State Species of Special Concern)

25
26
27
28

In my experience, if Defendants had conducted environmental review under NEPA for San
Diego Project 11, the USFWS would have considered and addressed potential impacts to these
listed species as part of its review of the project during the NEPA process.
12
Decl. of Kevin B. Clark ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)

1
2
3

Effects of proposed Yuma Project 6
35.

Yuma Project 6 proposes the construction of approximately 1.5 miles of a new

4

primary and secondary pedestrian fence system starting at Andrade Port Of Entry and extending

5

to the west into the Algodones sand dunes. Additional proposed fencing would also occur east of

6

the Colorado River and continue south for approximately one mile.

7

36.

The proposed primary and secondary fence in the Yuma area would affect

8

numerous rare and endangered species along the Colorado River and adjacent desert uplands that

9

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

10

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

11
12

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

13

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

14

Sonoran mud turtle (CA State Species of Special Concern)

15

Loggerhead shrike (CA State Species of Special Concern)

16

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

17

Yuma Ridgway’s Rail (Federally endangered)

18

Arizona Bell’s Vireo (CA State Species of Special Concern)

19

Gila Woodpecker (CA State Species of Special Concern)

20

Southwestern Willow Flycatcher (Federally endangered)

21

Western Yellow-billed Cuckoo (Federally endangered)

22

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

23

Pallid bat (CA State Species of Special Concern)

24

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

25

Western Yellow bat (CA State Species of Special Concern)

26

Western mastiff bat (CA State Species of Special Concern)

27

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

28

Big free-tailed bat (CA State Species of Special Concern)
13
Decl. of Kevin B. Clark ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)

1
2

In my experience, if Defendants had conducted environmental review under NEPA for

3

Yuma Project 6, the USFWS would have considered and addressed potential impacts to these

4

listed species as part of its review of the project during the NEPA process.

5

37.

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

6

low desert habitat in southeastern California, southwestern Arizona, and adjacent Mexico. This

7

lizard was proposed by the U.S. Fish and Wildlife Service for listing as a threatened species under

8

the Endangered Species Act. On March 15, 2011, this proposal was withdrawn by the Service,

9

which determined that the species did not need the protection of the Act, in part due to ongoing

10

conservation efforts such as the establishment of a Rangewide Management Strategy, an excerpt

11

of which is attached as Exhibit 6 to Plaintiffs’ Request for Judicial Notice, that was filed on June

12

12, 2019 [ECF Doc. No. 176-3]. The lizard is currently considered a California Species of

13

Special Concern. It is typically found in sandy flats and dunes that often support sparse desert

14

vegetation. Though this species is typically found in areas of fine windblown sand, it occasionally

15

is found in badlands, saltbush flats, and gravelly soils. This lizard is a specialized predator of

16

ants, and has declined throughout its range due to habitat fragmentation and degradation from

17

agricultural development, urbanization, and off-road vehicle use. For much of the year it stays

18

concealed in underground burrows, emerging during warmer months to forage for prey.

19

38.

The flat-tailed horned lizard is currently known to occur along the border zone

20

within the proposed construction area. The extensive trenching, construction of roads, and

21

staging of materials proposed in this area would harm or kill lizards that were either active or in

22

underground burrows in the area.

23

39.

The Yuma Ridgway’s Rail (Rallus obsoletus yumanensis) is a federally

24

endangered bird restricted to marsh and riparian habitats within the watershed of the lower

25

Colorado River and adjacent desert marshes. This secretive species stays well hidden in dense

26

vegetation located in shallow water. The Yuma Ridgway’s Rail is known to occur along the

27

Colorado River in the vicinity of the border. As this rail is secretive and easily disturbed by

28

human activities, the proposed one mile of construction activity immediately in and adjacent to
14
Decl. of Kevin B. Clark ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)

1

the river will destroy nesting habitat and disturb nesting rails along a significant stretch of the

2

river.

3
4
5

I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct.
Executed on October 8, 2019, at San Diego, California.

6
7
8
__

9

____________
Kevin B. Clark

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
15
Decl. of Kevin B. Clark ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)

EXHIBIT A

Case 3:17-cv-01215-GPC-WVG Document 18-2 Filed 10/06/17 PageID.423 Page 217 of 239

MEMORANDUM FOR:

Loren Flossman
Director
Border Patrol and Air and Marine
Program Management Office

FROM:

Paul Enriquez
Real Estate and Environmental Branch Chief
Real Estate, Environmental, and Leasing Division
Border Patrol and Air and Marine
Program Management Office

SUBJECT:

Construction and Evaluation of Border Wall Prototypes, U.S.
Border Patrol, San Diego Sector, California

Purpose:
On August 2, 2017 the Secretary of the Department of Homeland Security (OHS) issued a
waiver pursuant to Section 102(c) of the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA) (the Waiver). Among the projects covered by the Waiver is the
construction and evaluation of border wall prototypes (Project) in San Diego County, California.
This memorandum provides a description of Project activities, summarizes the results ofrecent
natural and cultural resource surveys performed within areas to be affected by the Project, and
analyzes the potential effects of the Project on the resources present within the Project Area
(hereinafter defined). Furthermore, the memorandum provides best management practices
(BMPs) to be implemented during the Project to minimize or avoid potential Project impacts.

Background and History:
The United States Border Patrol (USBP) San Diego Sector (SDC) in southern California is one
of the busiest USBP sectors in the Nation. Although the construction of border infrastructure
and other operational improvements over the last two decades has improved border security in
the sector, SDC remains an area of high illegal entry.
On August 2, 2017, the Secretary ofDHS, pursuant to his authority under Section I02(c) of
IIRIRA of 1996, issued the Waiver, which sets aside certain laws, regulations, and other legal
requirements in order to ensure the expeditious construction of barriers and roads in the vicinity
of the international land border of the United States in SDC, including the Project. Although the
Secretary' s waiver means that U.S. Customs and Border Protection (CBP) no longer has any
specific legal obligations under the laws that are included in the waiver, CBP remains committed

DHS0216

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Construction of SDC Border Wall Prototype
2
to the protection of valuable natural and cultural resources through responsible environmental
stewardship.
Proiect Description:

CBP will construct and evaluate border wall prototypes in an approximately 120' by 1,000'
corridor on the U.S./Mexico border in the alignment of the secondary border fence between the
Otay Mesa Land Port of Entry (LPOE) and the western base of Otay Mountain in San Diego
County, California (the Construction Corridor). The Construction Corridor is situated within an
area that currently serves as a border enforcement zone with primary and secondary border
fences, border roads, border lighting, and surveillance technology. CBP will build eight different
border wall prototypes side by side in the Construction Corridor. The construction design,
materials, methods, and equipment will vary by prototype. In general, construction activities
will consist of excavating for the prototype foundations, forming concrete, and assembling and
installing the 30' by 30' prototypes. A mockup of each prototype will be further evaluated at the
USBP SDC Support Facility on Pogo Row.
Access to the prototype construction area will be along the secondary border road from the west
and via two north-south roads near the LPOE; these access roads will be repaired or improved to
support the movement of heavy trucks and equipment to the prototype construction area. Access
road repair and improvement will consist of clearing vegetation, filling potholes, leveling and
grading, and stabilizing the road with aggregate or other stabilized road surface course. A gate
will be installed on the existing secondary fence to allow the movement of construction traffic
from the entrance road through the fence and onto the border road. Construction laydown and
staging will be done immediately south of the prototype construction area. The laydown and
staging area will include concrete washout stations, sanitary stations, and equipment refueling
stations. A remote video surveillance system (RVSS) will also be installed in the laydown and
staging area.
The Construction Corridor, access roads, laydown and staging areas and RVSS placement area is
referred to collectively as the Project Area. The total Project ,Area is estimated at approximately
52 acres, of which approximately 8 acres will be temporary disturbance and approximately, 2
acres will be new permanent disturbance.
Existing Environment:

The Project Area is located in San Diego County, California. It is situated along the
U.S./Mexico border between the western base of Otay Mountain and the Otay Mesa Land Port of
Entry (LPOE) within Section 36 of Township 18 South, Range 1 West, and Sections 31 and 32,
Township 18 South, Range 1 East (map reference: Otay Mesa, California, USGS 7.5'
topographic quadrangles). Additional evaluation of prototype mockups will occur at the USBP
SDC Support Facility on Pogo Row. See Figure l for a Project location map.
The Project Area, including the Construction Corridor, is located on Federal government
property. The Construction Corridor, laydown and staging areas, and RVSS placement area are
managed by CBP for purposes of border security. The access road to be used as an entrance to
the Construction Corridor is a two track road located on Federal government property managed

DHS0217

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Construction of SDC Border Wall Prototype
3
by the General Services Administration (GSA). The access road to be used as an exit from the
prototype construction area is a graded dirt road located on an easement held by CBP. The
laydown, staging, and RVSS placement area is heavily disturbed and currently serves as a border
enforcement zone with primary and secondary border fences, all-weather road, and border
lighting and surveillance technology. The USBP SDC Support Facility is a fully developed
facility located on Federal government property managed by CBP.
Field ~urveys for natural and cultural resources were conducted on August 23, 2017 by Gulf
South Research Corporation (GSRC) on behalf of CBP. The surveys covered the entire Project
Area but not the mockup evaluation location, which is completely paved and devoid of
vegetation. The survey area included the prototype construction area, all potential access roads,
and the laydown, staging, and RVSS placement area. See Figure 2 for a Project Area overview
map.
The Construction Corridor is heavily disturbed and bound by disturbed nonnative grassland to
the north and the U.S./Mexico Border to the south. A majority of this portion of the Project Area
is devoid of vegetation. A small strip of heavily disturbed and frequently mowed non-native forb
grassland runs along the southern edge of the Project Area adjacent to the border. The entrance
road is bound by industrial buildings to the north and east, and by heavy-truck transport
infrastructure to the west and south. This area shows evidence of heavy prior disturbances in the
form of grading and frequent mowing. The vegetation community is non-native grassland with
mixed forbs dominated by brome grass (Bromus spp.), Russian thistle (Salsola sp.), prickly
lettuce (Lactuca serriola), and Australian saltbush (Atriplex semibaccata). The exit road is an
unpaved heavily disturbed area running south of Via de La Amistad to the secondary border
fence. This area is bound by industrial buildings to the west, disturbed non-native grassland to
the east, and the border enforcement zone to the south. The vegetation community in the
immediate vicinity can best be described as non-native grassland with mixed forbs and shrubs.
This portion of the Project Area is completely disturbed and is nearly devoid of vegetation. The
laydown, staging, and RVSS placement area is heavily disturbed from frequent mowing of
vegetation and vehicular traffic. The vegetation community in the immediate vicinity can best
be described as non-native grassland with mixed non-native forbs dominated by brome grass,
Russian thistle, prickly lettuce, and Australian saltbush.
The burrowing owl (Athene cunicularia; [BUOW]) is a small owl distributed throughout western
North America that has been designated as a Species of Special Concern in the State of
California and is protected under the Migratory Bird Treaty Act. Common habitat includes open
areas containing mammal burrows within sparsely vegetated arid and semi-arid environments.
BUOWs require small mammal burrows for rearing and fledging young and for refuge. BUOWs
generally stay close to their burrows during the day and forage further .from the nest or refuge
burrow between dusk and dawn. The current breeding range ofBUOW includes much of the
state of California, including most of San Diego County along the border with Mexico.
During the survey, multiple BUOWs and 37 active BUOW burrows were observed in the
laydown, staging, and RVSS placement area. GSRC biologists reported 19 BUOWs, 12 of
which were observed at burrow sites. Additionally, several small mammal burrows were
. observed within the entrance road portion of the Project Area, primarily along the western edge
of the GSA managed property. However, there was no evidence of occupation or use of these

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Construction of SDC Border Wall Prototype
4
burrows by BUOW and no BUOWs were observed in this portion of the survey area. There was
no evidence of any active bird breeding or nesting behaviors observed in the Construction
Corridor or the exit road portions of the Project Area.
The Project Area is located within one mile of designated Critical Habitat for the coastal
California gnatcatcher (Polioptila californica; [CAGN]). The CAGN is Federally listed as
threatened. The CAGN is the northenunost species of California gnatcatcher. It is a small, nonmigratory songbird occurring along the Pacific coasts of southern California and northern Baja
California, Mexico. The CAGN is associated with coastal scrub plant communities, including
coastal sage scrub and coastal succulent scrub. There was no evidence of suitable habitat or
occupation of the Project Area by CAGN.
The eastern portion of the Project Area extends into designated Critical Habitat for the Quino
checkerspot butterfly (Euphydryas editha quino; [QCB]). The QCB is Federally listed as
endangered. The QCB is found in several plant communities, from scrub on coastal bluffs,
coastal sage, chaparral, and oak woodlands to desert pinyon-juniper woodlands. However, it is
only found in openings within these plant communities having a sufficient cover of larval food
plants and annual forbs that provide nectar for adults. There was no evidence of suitable habitat
or occupation of the Project Area by QCB.
The Project Area extends into designated Critical Habitat for San Diego Fairy Shrimp
(Branchinecta sandiegonensis; [SDFS]). The SDFS is a small aquatic crustacean that is
generally restricted to vernal pools in southern California and northwestern Baja California. The
SDFS is Federally listed as endangered. There was no evidence of suitable habitat or occupation
of the Project Area by SDFS.
Critical habitat for Riverside Fairy Shrimp (Streptocephalus woottoni; [RSFS]) occurs within 1.0
mile of the Project Area. The RSFS is a small aquatic crustacean that is generally restricted to
vernal pools greater than 12 inches in depth in Riverside, Orange, and San Diego Counties in
California. The RSFS is Federally listed as endangered. There was no evidence of suitable
habitat or occupation of the Project Area by RSFS.
Vernal pools are a type of temporary wetland that consist of depressions in areas where a hard
underground layer prevents rainwater from draining downward into the subsoils. Rainwater
typically fills the pools in winter and spring and gradually evaporates from late spring to
summer. Vernal pools are some of the most ecologically important and distinct habitats in
California, supporting a diversity of flora and fauna, including species found only in these
habitats such as SDFS and RFS. As wetlands, vernal pools are protected by state and Federal
laws. Vernal pools are known to occur north of the Project Area. However, no vernal pools,
wetlands, or other surface waters were observed within the Project Area. A shallow ditch within
the border enforcement zone to the east of the entrance road and outside of the Project Area was
observed to display vegetation and hydrology consistent with wetlands and is a potential wetland
habitat.
No other rare, threatened, or endangered species were observed within the survey area and other
than the BUOWs, no other nesting or breeding bird behavior was observed.

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Construction of SDC Border Wall Prototype

5
No archaeological sites or historic properties were identified during the pedestrian archaeological
survey. Several manmade features were observed within the Project Area, such as a drainage
channel and storm drain. The drainage channel is believed to be modem in nature and origin
(i.e., within the last 10 to 20 years). A fragment of a ceramic roof tile was also noted within the
GSA-managed property near the entrance road, but appears to be displaced, along with refuse,
and is likely modem. In addition, two possible pieces of lithic debitage were also noted within
the laydown, staging, and RVSS placement area. However, both.items are located between the
primary fence and the all-weather road to the north, and within an area that has been subject to
significant earth-moving activities (e.g., blading, grading, leveling). It is likely that the items
were created through pressure of heavy equipment (e.g., bulldozer or grader) traveling over the
ground surface.
The Project Area is located within San Diego County, California within the San Diego Air
Pollution Control District. San Diego County is a Federal and State nonattainment area for 8hour ozone and a State nonattainment area for I-hour ozone and particulate matter (PMlO and
PM2.5). San Diego County is in attainment or unclassified status for all other criteria air
pollutants.
Environmental Analysis:

Based on the results of the field surveys and knowledge of the Project Area, CBP identified
sensitive species, surface water, cultural and historical resources, and air quality as the
environmental resource categories with the greatest potential to be impacted by the Project. A
review was conducted to ensure that the impacts from the Project will not adversely affect these
resources. Other environmental impacts are not expected to result from the Project.
(a) Sensitive Species

In August 2017, biologists conducted a pedestrian survey of the Project Area to identify sensitive
species, candidate species, and/or critical habitat present; consider project revisions to avoid or
minimize effects; and provide options for reasonable mitigation of unavoidable effects.
During the survey, multiple BUOWs and 37 active BUOW burrows were observed in the
laydown, staging, and RVSS placement area. GSRC biologists reported 19 BUOWs, 12 of
which were observed at burrow sites. The California Department of Fish and Wildlife
recommends a 50-meter buffer around active BUOW burrows during the non-breeding season
(September 1 through January 31 ). A 50-meter buffer around all but the two easternmost
observed burrows will be enforced by CBP for Project activities. The two easternmost observed
burrows will be directly affected by site grading and are within 50 meters of the area to be
affected by the RVSS placement. CBP will install one-way exclusionary doors on these two
easternmost BUOW burrows to be affected as the result ofRVSS placement and wait until the
burrows are vacated before collapsing them to ensure no direct mortality to BUOW individuals
occurs. Because BUOW burrows and suitable habitat are relatively common throughout San
Diego County along the border with Mexico, overall impacts to BUOW from a loss of two
burrows are considered minor.

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Construction of SDC Border Wall Prototype
6
The Project Area is located within designated Critical Habitat for QCB and SDFS and in the
vicinity of designated Critical Habitat for CAGN and RSFS. However, no evidence of suitable
habitat or occupation of the Project Area was observed. Due to the absence of suitable habitat
for these species within the Project Area, the Project will have no impact on CAGN, QCB,
SDFS, or RSFS or their designated Critical Habitat. Furthermore, the Project will have no ·
impact on any other state or Federal sensitive or protected species.
(b) Cultural and Historical Resources
In August 2017, an archaeologist conducted a pedestrian survey of the Project Area to identify
cultural and historical resources; consider project revisions to avoid or minimize effects; and
provide options for reasonable mitigation of unavoidable effects. No archaeological sites or
historic properties were identified during the pedestrian archaeological survey. Due to the
absence of cultural resources sites in the Project Area, the Project is not likely to have any impact
on cultural and historical resources.
(c) Air Quality
San Diego County is within a Federal and State nonattairunent area for 8-hour ozone and a State
nonattainment area for I-hour ozone, PMlO, and PM2.5. A conformity determination would be
required for each pollutant where the total of direct and indirect emissions in a non-attairunent or
maintenance area caused by the Federal action will equal or exceed specified emissions rates.
Temporary and minor increases in air pollution will occur from the use of construction
equipment (combustion emissions) and the disturbance of soils (fugitive dust) during
construction. Several sources of air pollutants will contribute to the overall air impacts of the
Project, including: combustion engines of construction equipment; construction workers
commuting to and from work; supply trucks delivering materials to the construction site; and
fugitive dust from job-site ground disturbances. Fugitive dust emissions for the Project were
calculated based on assumptions about equipment to be used, size of the Project Area, and
construction duration. The total air quality emissions from the construction activities were
estimated and compared to the de minimis thresholds of the General Conformity Rule.

Total Air Emissions (tons/year) from the Project versus the de minimis Threshold Levels
for San Die o Coun
Pollutant
Total (tons! ear de minimis Thresholds (tons! ear
co
<3
100
Volatile Organic Compounds (VOC) < 1
50
Nitrous Oxides (NOx)
<2
100
PM-10
<2
100
PM-2.5
<2
100
<1
S02
100
CO2 and CO2 e uivalents
< 1,200
27,557
The construction and evaluation activities associated with the Project do not exceed Federal de
minimis thresholds for air pollution emissions. As there are no violations of air quality standards

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Construction ofSDC Border Wall Prototype
7
and no conflicts with the state implementation plans, the Project will not have a major impact on
air quality.

(d) Surface Water
The Project will not result in impacts on any vernal pools, wetlands, or other surface waters, as
no vernal pools, wetlands, or other surface waters are located within the Project Area. A shallow
ditch within the border enforcement zone to the east of the entrance road and outside of the
Project Area displayed vegetation and hydrology consistent with wetlands and is a potential
wetland. However, all impacts from the Project will be contained within the Project Area
through the implementation of a Storm Water Pollution Prevention Plan (SWPPP), and no
impacts to the potential wetland will occur. The SWPPP measures will be monitored during
construction. The Project will not have a major impact on surface water quality.

Best Management Practices:
GENERAL
CBP will clearly demarcate project construction area perimeters. No disturbance outside that
perimeter will be authorized without prior coordination and approval.
Within the designated disturbance area, CBP will minimize the area to be disturbed by limiting
deliveries of materials and equipment to only those needed for effective project implementation.
CBP will provide an environmental briefing to all construction crew members working on the
Project, informing them of sensitive resources present within the Project Area and BMPs to be
implemented.
VEGETATION
·CBP will minimize habitat disturbance by restricting vegetation removal to the smallest possible
project footprint. Native seeds or plants, which are compatible with the enhancement of habitat
for sensitive species, will be used to the greatest extent practicable, to rehabilitate staging areas
and other temporarily disturbed areas.
Construction equipment will be cleaned at temporary staging areas, in accordance with BMPs,
prior to entering and departing the Project Area to minimize the spread and establishment of nonnative invasive plant species.
WILDLIFE RESOURCES
If construction activities are scheduled during nesting season (February 15 through September
1), monitors will perform surveys in advance of construction activity to identify active nests. If
the monitor observes a nest with eggs or chicks, he will work with the construction crew to do
one of the following: 1) avoid the nest, so long as it does not impact the scope of work for road
improvement activities; 2) if appropriate, take it to a rehabilitation center; or 3) if neither 1 nor 2
is practicable, document the loss and include that information in the monitoring report.

DHS0222

Case 3:17-cv-01215-GPC-WVG Document 18-2 Filed 10/06/17 PageID.430 Page 224 of 239
Construction of SDC Border Wall Prototype

8
CBP will not, for any length of time, permit any pets inside the Project Area or adjacent native
habitats. This BMP does not pertain to law enforcement animals.
PROTECTED SPECIES
.A 50-meter buffer around observed BUOW burrows will be enforced by CBP for Project
activities. Where observing a 50-meter buffer is not compatible with Project needs, CBP will
install one-way exclusionary doors on BUOW burrows and wait until the burrows are vacated
before collapsing them to ensure no direct mortality to BUOW individuals occurs.
WATER RESOURCES
Standard construction procedures will be implemented to minimize the potential for erosion and
sedimentation during construction. All work will cease during heavy rains and will not resume
until conditions are suitable for the movement of equipment and material. No refueling or
storage will take place within 100 feet of drainages. CBP will avoid contaminating natural
aquatic systems with runoff by limiting all equipqient maintenance, staging, laydown, and
dispensing of fuel, oil, etc., to designated upland areas.
CBP will avoid contamination of ground and surface waters by storing any water that has been
contaminated with construction materials, oils, equipment residue, etc., in closed containers on
site until removed for disposal. Storage tanks must have proper air space (to avoid rainfallinduced overtopping), be on-ground containers, and be located in upland areas instead of washes.
.
.

In the event that CBP contaminates soil or water resources as a result of the Project, the
contaminated soil or water will be remediated.
A SWPPP will be prepared, implemented, and monitored.
CULTURAL RESOURCES
If any archaeological artifacts are found during Project activities, all project activity in the
immediate area will immediately cease until an evaluation of the discovery is made to determine
appropriate actions to prevent the loss of significant cultural or scientific value.

In the event that human remains or indications that human remains may be present, such as
headstones, are observed or encountered, all project activity in the immediate area will
immediately cease and the site will be secured. Securing the site requires that the discovery not
be disturbed and that others are prevented from disturbing it. The CBP project manager will be
immediately notified of the observations or discoveries. A map showing the location will be
provided if possible. No photographs of human remains will be taken.
AIR QUALITY

In order to minimize the amount of project-related dust emissions, construction crews will
implement the following practices: minimizing land disturbance; ensuring saturation of exposed

DHS0223

Case 3:17-cv-01215-GPC-WVG Document 18-2 Filed 10/06/17 PageID.431 Page 225 of 239
Construction of SDC Border Wall Prototype
9
areas; and controlling fugitive dust caused by hauling activities and vehicular travel on unpaved
road surfaces.
All construction equipment shall be maintained and operated in a manner that produces the least
amount of emissions. All construction equipment and vehicles must be maintained in good
operating condition, free from leaks.
NOISE
AU applicable Occupational Safety and Health Administration regulations and requirements will
be followed.
On-site activities will be restricted to daylight hours, to the greatest extent practicable.
All equipment will possess properly working mufflers and will be kept properly tuned to reduce
backfires.
HAZARDOUS MATERIALS
To minimize potential impacts from hazardous and regulated materials, all fuels, waste oils, and
solvents will be collected and stored in tanks or drums within a secondary containment system
that consists of an impervious floor and bermed sidewalls capable of containing the volume of
the largest container stored therein. The refueling of machinery will be completed in accordance
with accepted industry and regulatory guidelines, and all vehicles will have drip pans during
storage to contain minor spills and drips. Although it is unlikely that a major spill will occur,
any spill of reportable quantities will be contained immediately within an earthen dike, and the
application of an absorbent (e.g., granular, pillow, sock) will be used to absorb and contain the
spill.
CBP will contain non-hazardous waste materials and other discarded materials, such as
construction waste, until removed from the construction and maintenance sites. This will assist
in keeping the Project Area and surroundings free of litter and reduce the amount of disturbed
area needed for waste storage.
CBP will minimize site disturbance and avoid attracting predators by promptly removing waste
materials, wrappers, and debris from the site. Any waste that must remain more than 12 hours
should be properly stored until disposal.
All waste oil and solvents will be recycled. All non-recyclable hazardous and regulated wastes
will be collected, charact~rized, labeled, stored, transported, and disposed of in accordance with
all applicable Federal, state, and local regulations, including proper waste manifesting
procedures.
Solid waste receptacles will be maintained at the construction staging area. Non-hazardous solid
waste (trash and waste construction materials) will be collected and deposited in on-site
receptacles. Solid waste will be collected and disposed ofby a local waste disposal contractor.

DHS0224

Case 3:17-cv-01215-GPC-WVG Document 18-2 Filed 10/06/17 PageID.432 Page 226 of 239
Construction of SDC Border Wall Prototype
10
Conclusion:
Based on a review of the information provided for the Project, the results of natural and cultural
resources surveys, and an analysis of potential effects from the Project, no major impacts to the
environment are likely to result from the Project. Therefore, no further environmental
investigation or analysis, such as preparing an Environmental Stewardship Plan, is required.

Date:~fr=/-1-

A~~
Modify: _ _ _ _ _ _ _ _ _ _ __

Disapprove:

- - - - - - -- - -

Needs More Discussion:- - - - - - -

DHS0225

EXHIBIT 2

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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
SPARSH S. KHANDESHI
LEE I. SHERMAN
JANELLE M. SMITH
JAMES F. ZAHRADKA II
HEATHER C. LESLIE (SBN 305095)
Deputy Attorney General
State Bar No. 305095
1300 I Street, Suite 125
P.O. Box 944255
Sacramento, CA 94244-2550
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Plaintiff State of California
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
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 DR. KAI DUNN IN
SUPPORT OF MOTION FOR PARTIAL
SUMMARY JUDGMENT REGARDING
SECTION 2808 PROJECTS

Plaintiffs,
Decl. of Dr. Kai Dunn ISO Partial MSJ Re: Section 2808 Projects

(4:19-cv-00872-HSG)

1
v.
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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 Dr. Kai Dunn ISO Partial MSJ Re: Section 2808 Projects

(4:19-cv-00872-HSG)

1

I, Dr. Kai Dunn, declare as follows:

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1.

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4

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 /

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Stormwater / 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 / Stormwater / 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 § 13000 et seq.) authorize the California State Water Resources Control

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

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(Regional Water Boards) (collectively, Water Boards) to regulate and protect water quality in

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California. The Water Boards’ mission is to preserve, enhance, and restore the quality of

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California’s water resources and drinking water for the protection of the environment, public

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health, and all beneficial uses for the benefit of present and future generations.

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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 (also referred to as a “basin plan”) setting forth

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the water quality standards for all surface waters and groundwaters within the region, as well as

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programs of implementation. See Cal. Water Code §§ 13050(j), 13240-13248. Water quality

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standards consist of the beneficial uses of a water body and the water quality objectives (or

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“criteria” under Clean Water Act terminology) designated to protect those beneficial uses. 40
1
Decl. of Dr. Kai Dunn ISO Partial MSJ Re: Section 2808 Projects

(4:19-cv-00872-HSG)

1

C.F.R. §§ 131.2, 131.10-131.15; Cal. Wat. Code §§ 13050(f), (h), 13241. “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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recreation, critical habitat, etc. Cal. Wat. Code § 13050(f); 40 C.F.R. § 131.10. “Water quality

4

objectives” are limits on levels of pollutants in a water body designed to ensure that the water

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quality is adequate to support the designated beneficial uses for that water body. Cal. Wat. Code

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§§ 13050(h), 13241; 40 C.F.R. § 131.11.

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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 water quality standards and

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programs of implementation and serves as the legal, technical, and programmatic basis of water

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quality regulation in the Board’s region. Cal. Wat. Code § 13240; 33 U.S.C. § 1313; 40 C.F.R. §

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

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

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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 Salton Sea, Colorado River, New River,

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Alamo River, All-American Canal, Alamo Canal, Imperial Valley agricultural drains, and washes

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and ephemeral streams that drain into and serve as to tributaries to these water bodies, all of

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which are located near California’s border with Mexico. These surface waters generally

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

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

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Cal. Wat. Code § 13050(e).

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8.

The Colorado River Basin Water Board implements the water quality objectives

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

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

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discharge requirements “shall implement any relevant water quality control plans that have been
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Decl. of Dr. Kai Dunn ISO Partial MSJ Re: Section 2808 Projects

(4:19-cv-00872-HSG)

1

adopted, shall take into consideration the beneficial uses to be protected, the water quality

2

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

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

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

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

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

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

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

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permitting program.

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9.

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

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

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

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

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

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

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

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

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

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

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10.

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

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

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the waters’ beneficial uses designated in the Colorado River Basin Water Board’s Basin Plan.

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Water quality certifications typically include requirements for implementing best management

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practices (BMPs) that the project proponent must follow in order to minimize the project’s

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impacts on water quality. BMPs are scheduling of activities, prohibitions of practices,

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maintenance procedures, and other management practices to prevent or reduce the discharge of

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pollutants to waters of the United States. BMPs also include treatment requirements, operating

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procedures, and practices to control site runoff, spillage or leaks, sludge or waste disposal, or
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Decl. of Dr. Kai Dunn ISO Partial MSJ Re: Section 2808 Projects

(4:19-cv-00872-HSG)

1

drainage from raw material storage. Water quality certifications can also require compensatory

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mitigation to offset loss of aquatic resource functions from unavoidable project impacts to waters

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of the United States. See Cal. Wat. Code § 13263; 40 C.F.R. § 230.93.

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11.

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

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

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

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

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

9

Protection.

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12.

Exhibit 3 to Plaintiffs’ Request for Judicial Notice, filed on June 12, 2019, [ECF Doc

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No. 176-3], is a Water Quality Certification Order issued in response to United States Customs

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and Border Protection’s (CBP) 2013 application for a Section 401 water quality certification. I

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have reviewed the Water Quality Certification Order and CBP’s application for certification.

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CBP sought to construct a 1.6 mile road, known as the West Desert All-Weather Road project,

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along the United States-Mexico border in an area west of the Calexico Port of Entry. The order

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reflects that CBP needed a Section 401 water quality certification and federal permits from the

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Army Corps of Engineers because the project would involve dredge and fill activities within or

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next to the Pinto Wash, an ephemeral stream that drains into the New River. (RJN Ex. 3, p. 7.)

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13.

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

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

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Desert All-Weather Road project would traverse six ephemeral washes that are waters of the

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United States through use of concrete low-water crossings, reinforce concrete pipes, or box

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culverts. (See RJN Ex. 3, page 7.) In documents attached to CBP’s application for certification,

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CBP acknowledged that the six unnamed ephemeral washes constitute waters of the United

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

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

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14.

I have reviewed a list of additional border-barrier projects that the federal

government plans to construct in Imperial County, California, as outlined in the table attached as
4
Decl. of Dr. Kai Dunn ISO Partial MSJ Re: Section 2808 Projects

(4:19-cv-00872-HSG)

1

Exhibit 1 to the Declaration of Heather Leslie. (2808 Project Table). I received the 2808 Project

2

Table from counsel of record for the State of California. I also reviewed the projects described in

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the “List of Military Construction Projects” that Defendants filed in this matter on September 3,

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2019, [ECF Doc. No. 206-2] (2808 Project List). The 2808 Project Table and 2808 Project List

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include three border-barrier projects to be constructed, at least in part, in areas under the

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jurisdiction of the Colorado River Basin Water Board. The three projects include El Centro

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Projects 5 and 9, and Yuma Project 6.

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15.

The 2808 Project List states that El Centro Project 5 includes one mile of new

secondary pedestrian fencing near the Calexico Point of Entry, and that El Centro Project 9

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involves construction of approximately twelve miles of a new secondary fence system, starting

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1.5 miles west of monument marker 223 and ending at monument marker 221, and resuming one

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mile east of the Calexico West Port of Entry and extending east for three miles. The California

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portion of Yuma Project 6 includes construction of approximately one mile of new primary

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pedestrian fencing starting at the Andrade Port of Entry and going east towards the Colorado

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River, and also construction of around 1.6 miles of new secondary pedestrian fencing in

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California, starting a half mile east of monument marker 208 and extending east towards the

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Colorado River. (ECF Doc. No. 206-2). I also used Google Earth to plot the coordinates provided

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for the projects in the 2808 Project Table to confirm the locations of El Centro Projects 5 and 9,

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and Yuma Project 6.

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16.

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

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

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similar fencing is proposed for El Centro Projects 5 and 9 and Yuma 6. The construction of these

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

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Similarly, the construction of roadways near the border barriers necessarily require grading and

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significant soil disturbances.

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17.

El Centro Project 5 is being constructed near the New River, which CBP has

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previously recognized is a jurisdictional water of the United States under the Clean Water Act.

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(RJN Ex. 3, p. 7). Possible impacts to the New River from this project include sediment being
5
Decl. of Dr. Kai Dunn ISO Partial MSJ Re: Section 2808 Projects

(4:19-cv-00872-HSG)

1

discharged into the River, and also potential harm to riparian areas including a 14-foot-wide

2

riparian zone on the west bank of the New River, and a 9-foot riparian zone on its east bank.

3

Riparian areas act as a buffer to protect and enhance aquatic resource functions from adjacent

4

land uses. Compensatory mitigation could be required for loss of riparian areas due to El Centro

5

5, in order to sustain aquatic resource functions within the watershed. The protection and

6

maintenance of terrestrial resources, such as riparian areas and uplands, is required when they

7

contribute to or improve the overall ecological functioning of aquatic resources in the watershed.

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El Centro Project 5 could normally not proceed without a Section 404 dredge and fill permit

9

issued by the United States Army Corps of Engineers, which would in turn compel a Section 401

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11

water quality certification for the project by the unit that I manage.
18.

The same is true for El Centro Project 9. That project will also impact jurisdictional

12

waters including the All-American Canal by discharging sediment, which is a physical pollutant

13

that increases turbidity, and also further impairs water quality by transporting other pollutants

14

such as nutrients, metals, pesticides, and oils and grease into the water body. El Centro Project 9

15

could normally not proceed without a Section 404 dredge and fill permit issued by the United

16

States Army Corps of Engineers, which would in turn compel a Section 401 water quality

17

certification by the unit that I manage.

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19. Yuma Project 6 will also likely result in water-quality impacts to jurisdictional waters

19

including the All-American Canal, the Alamo Canal and the Colorado River. This project will

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result in sediment impacts to these waters, and also potentially harm a 30-foot-wide riparian zone

21

on the west bank of the Alamo Canal. Compensatory mitigation might be required depending on

22

the extent of impacts to the riparian area. This project also could normally not proceed without a

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Section 404 dredge and fill permit issued by the United States Army Corps of Engineers, which

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would in turn compel a Section 401 water quality certification by the unit that I manage.

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20. Due to their nature and location of construction, El Centro Projects 5 and 9, and Yuma
Project 6 normally would also require enrollment in the State Water Board’s statewide NPDES

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Decl. of Dr. Kai Dunn ISO Partial MSJ Re: Section 2808 Projects

(4:19-cv-00872-HSG)

7

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
BRIAN J. BILFORD
SPARSH S. KHANDESHI
LEE I. SHERMAN
JANELLE M. SMITH
JAMES F. ZAHRADKA II
HEATHER C. LESLIE (SBN 305095)
Deputy Attorney General
State Bar No. 305095
1300 I Street, Suite 125
P.O. Box 944255
Sacramento, CA 94244-2550
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Plaintiff State of California
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
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 DAVID GIBSON IN
SUPPORT OF MOTION FOR PARTIAL
SUMMARY JUDGMENT REGARDING
SECTION 2808 PROJECTS

Plaintiffs,
Decl. of David Gibson ISO Partial MSJ Re: Section 2808 Projects

(4:19-cv-00872-HSG)

1
v.
2
3
4
5
6
7
8
9
10
11
12
13
14
15

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 David Gibson ISO Partial MSJ Re: Section 2808 Projects

(4:19-cv-00872-HSG)

1

I, David Gibson, declare as follows:

2

1.

Except as to statements made on information and belief, I have personal knowledge

3

of each fact stated in this declaration, and if called as witness, I would and could testify

4

competently to those facts. As relevant to statements made on information and belief, I am

5

informed and believe that those statements are true.

6

2.

I am employed by the California Regional Water Quality Control Board, San Diego

7

Region (San Diego Water Board) as its Executive Officer and have served in that capacity since

8

November 18, 2009. Before that, I was an environmental scientist in the Watershed Protection,

9

Storm Water, Clean Water Act section 401 Water Quality Certifications, Grants and Loans, and

10

Total Maximum Daily Loads programs. Prior to my employment with the San Diego Water

11

Board, I was employed by the City of San Diego Water Department where I worked on vector

12

control, watershed, and reservoir monitoring programs. I hold a Bachelor of Science Degree in

13

Biology from San Diego State University (1989).

14

3.

I have been trained in wetlands delineation and have worked extensively preparing

15

proposals for dredging and fill activities in wetlands and preparing Federal Clean Water Act

16

(CWA) section 401 Water Quality Certifications (401 Certifications). In my staff work at the

17

City of San Diego and the San Diego Water Board, I have acquired extensive knowledge of the

18

Tijuana River Watershed and its several transboundary drainages. As Executive Officer, I have

19

led the Tijuana River Valley Recovery Team and worked with over 30 agencies and organizations

20

on projects related to the transboundary flows of wastes, and on the impacts of those flows on

21

receiving waters, habitats, and communities in the lower Tijuana River Valley. Those efforts

22

have included extensive engagement with agents, staff, and contractors of the Department of

23

Homeland Security and U.S. Customs and Border Protection (CBP). I am also familiar with

24

CBP’s efforts to develop or expand border fence and ancillary infrastructure in the San Diego

25

Region.

26

4.

As Executive Officer, I am responsible for reviewing staff work on National Pollutant

27

Discharge Elimination System (NPDES) permits for wastewater and storm water discharges to

28

surface waters within the San Diego Region that are issued by the San Diego Water Board, as
1
Decl. of David Gibson ISO Partial MSJ Re: Section 2808 Projects

(4:19-cv-00872-HSG)

1

well as water quality certifications under Section 401 of the Clean Water Act. I have reviewed

2

and acted upon staff recommendations to approve or deny 401 Water Quality Certifications for

3

projects in the Tijuana River and Otay River watersheds.

4

5.

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

5

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

6

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

7

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

8

(Regional Water Boards) (collectively, Water Boards) to regulate and protect water quality in

9

California. The Water Boards’ mission is to preserve, enhance, and restore the quality of

10

California’s water resources and drinking water for the protection of the environment, public

11

health, and all beneficial uses for the benefit of present and future generations.

12

6.

Each Regional Water Board—including the San Diego Water Board—is required to

13

prepare a water quality control plan (also referred to as a “basin plan”) setting forth the water

14

quality standards for all surface waters and groundwaters within the region, as well as programs

15

of implementation. See Cal. Water Code §§ 13050(j), 13240-13248. Water quality standards

16

consist of the beneficial uses of a water body and the water quality objectives (or “criteria” under

17

Clean Water Act terminology) designated to protect those beneficial uses. 40 C.F.R. §§ 131.2,

18

131.10-131.15; Cal. Wat. Code §§ 13050(f), (h), 13241. “Beneficial uses” of water refers to the

19

resources, services, and qualities they support or could support, e.g., drinking, recreation, critical

20

habitat, etc. Cal. Wat. Code § 13050(f); 40 C.F.R. § 131.10. “Water quality objectives” are

21

limits on levels of pollutants in a water body designed to ensure that the water quality is adequate

22

to support the designated beneficial uses for that water body. Cal. Wat. Code §§ 13050(h),

23

13241; 40 C.F.R. § 131.11.

24

7.

The Water Quality Control Plan for the San Diego Region (Basin Plan), adopted by

25

the San Diego Water Board, contains water quality standards and programs of implementation

26

and serves as the legal, technical, and programmatic basis of water quality regulation in the

27

Board’s region. Cal. Wat. Code § 13240; 33 U.S.C. § 1313; 40 C.F.R. § 131.4. The Basin Plan

28

is designed to preserve and enhance water quality in the region and to protect the beneficial uses
2
Decl. of David Gibson ISO Partial MSJ Re: Section 2808 Projects

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1

of all regional waters. A copy of the current Basin Plan is available on the San Diego Water

2

Board’s website at https://www.waterboards.ca.gov/sandiego/water_issues/programs/basin_plan/

3
4
5

The Basin Plan has been approved by the State Water Board and has the full force and
effect of regulation. Cal. Code Regs., tit. 23, § 3960 et seq; Cal. Gov Code § 11353.
8.

The San Diego Water Board protects the water quality of water bodies within the San

6

Diego Region, including Tijuana River and Otay River, and washes and ephemeral streams that

7

drain into and serve as to tributaries to these water bodies, all of which are located near

8

California’s border with Mexico. These surface waters generally constitute jurisdictional waters

9

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

10

California Porter-Cologne Water Quality Control Act. 33 U.S.C. § 1362; Cal. Wat. Code §

11

13050(e).

12

9.

The San Diego Water Board implements the water quality objectives contained in the

13

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

14

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

15

requirements “shall implement any relevant water quality control plans that have been adopted,

16

shall take into consideration the beneficial uses to be protected, the water quality objectives

17

reasonably required for that purpose…”); 33 U.S.C. § 1342 (federal Clean Water Act permits

18

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

19

domestic, municipal, and industrial wastewater discharges to surface waters (under Clean Water

20

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

21

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

22

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

23

departments are required to comply with the requirements of California’s NPDES permitting

24

program.

25

10.

The San Diego Water Board also issues water quality certifications under Section 401

26

of the Clean Water Act for projects that involve the discharge of dredged or fill material into

27

waters of the United States, including rivers and streams and wetlands. Under Section 401, every

28

applicant for a federal permit or license for any activity that may result in a discharge to
3
Decl. of David Gibson ISO Partial MSJ Re: Section 2808 Projects

(4:19-cv-00872-HSG)

1

jurisdictional waters must obtain a water quality certification from the appropriate Water Board

2

demonstrating that the proposed activity will comply with state water quality standards and with

3

any other appropriate requirements of state law. The federal permit, such as a permit issued by

4

the United States Army Corps of Engineers under Clean Water Act Section 404, allowing a party

5

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

6

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

7

11.

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

8

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

9

the waters’ beneficial uses designated in the San Diego Water Board’s Basin Plan. Water quality

10

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

11

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

12

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

13

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

14

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

15

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

16

storage. Water quality certifications can also require compensatory mitigation to offset loss of

17

aquatic resource functions from unavoidable project impacts to waters of the United States. See

18

Cal. Wat. Code § 13263; 40 C.F.R. § 230.93.

19

12.

The San Diego Water Board has reviewed and processed several applications for

20

Section 401 water quality certifications submitted to the Board by federal agencies for projects

21

within the San Diego Region. These have included applications submitted by the United States

22

Army Corps of Engineers, and I am aware of a pending application by CBP.

23

13.

I have reviewed a list of additional border-barrier projects that the federal

24

government plans to construct in San Diego County, California, as outlined in the table attached

25

as Exhibit 1 to the Declaration of Heather Leslie. (2808 Project Table). I received the 2808

26

Project Table from counsel of record for the State of California. I also reviewed the projects

27

described in the “List of Military Construction Projects” that Defendants filed on September 3,

28

2019, [ECF Doc. No. 206-2] (2808 Project List). The 2808 Project Table and 2808 Project List
4
Decl. of David Gibson ISO Partial MSJ Re: Section 2808 Projects

(4:19-cv-00872-HSG)

1

include two border-barrier projects, San Diego 4 and San Diego 11, that will be constructed in

2

areas under the jurisdiction of the San Diego Water Board.

3

14.

The 2808 Project List states that San Diego 4 includes construction of 1.5 miles of

4

new primary pedestrian fencing starting 3.6 miles east of the Otay Mesa Port of Entry and

5

extending east, and also construction of 2 miles of new secondary pedestrian fencing for this

6

same stretch of the border. San Diego 11 involves construction of approximately 3 miles of new

7

secondary pedestrian fencing starting 2 miles west of the Tecate Port of Entry and extending to

8

1.5 miles east of the Tecate Port of Entry. I also reviewed the coordinates in the 2808 Project

9

Table to confirm the locations of San Diego Project 4 and San Diego Project 11.

10

15.

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

11

constructed by CBP over the past year in California, and understand that the construction of

12

similar fencing is proposed for San Diego Projects 4 and 11. The construction of these types of

13

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

14

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

15

disturbances.

16

16.

San Diego Project 4 is being constructed near the Tijuana River, and within and near

17

washes and ephemeral streams that drain into the Tijuana River. Possible impacts to the Tijuana

18

River from this project include sediment being discharged into the River, along with other

19

pollutants like metals and pesticides that are contained in the sediment. Vernal pools near the

20

project site may also be impacted during project construction, as the roads providing site access

21

go through vernal pool areas. Transporting heavy construction equipment on these roads, and any

22

road improvements needed for project construction, could damage vernal pools. In Southern

23

California, vernal pools are shallow depressions overlying impermeable substrates, typically clay

24

hardpans, which fill with winter rainfall and retain ponded water through the spring. These

25

seasonal wetlands are habitat for numerous protected species such as the San Diego Fairy Shrimp

26

and the Riverside Fairy Shrimp, both of which are endangered under the federal Endangered

27

Species Act. Because much of the vernal pool habitat in Southern California has been destroyed,

28

preserving the remaining vernal pool habitat is critical for these species’ recovery. San Diego
5
Decl. of David Gibson ISO Partial MSJ Re: Section 2808 Projects

(4:19-cv-00872-HSG)

1

Project 4 could normally not proceed without a Section 404 dredge and fill permit issued by the

2

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

3

certification for the project issued by the San Diego Water Board.

4

17.

The same is true for San Diego Project 11. That project will also impact

5

jurisdictional waters including the Tijuana River, and washes and ephemeral streams that drain

6

into the Tijuana River, by discharging sediment which is a physical pollutant that increases

7

turbidity, and also further impairs water quality by transporting other pollutants such as nutrients,

8

metals, pesticides, and oils and grease into the water body. San Diego Project 11 could normally

9

not proceed without a Section 404 dredge and fill permit issued by the United States Army Corps

10

of Engineers, which would in turn compel a Section 401 water quality certification issued by the

11

San Diego Water Board.

12

18. Due to their nature and location of construction, San Diego Projects 4 and 11 normally

13

would also require enrollment in the State Water Board’s statewide NPDES Construction General

14

Permit,1 which is enforced by the San Diego Water Board in the region. The proposed

15

construction for these two projects poses a high risk for storm water run-off impacting water

16

quality during the construction phase and post-construction maintenance. The Construction

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

prevent and minimize adverse water quality impacts.

25
26
27
28

19.

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

program and the Section 401 water quality certification program are necessary to ensure that
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).
6
Decl. of David Gibson ISO Partial MSJ Re: Section 2808 Projects

(4:19-cv-00872-HSG)

EXHIBIT 4

1
Plaintiffs,
2

v.
3
4

5
6

7
8
9
10
11

12

13
14
15

16

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 Anny; 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;
Defendants.

17

18
19

20
21

22

23
24

25
26
27

28
Declaration of Christopher D. Nagano ISO Motion for Partial Summary Judgment (4:19-cv-00872-HSG)

1

I, Christopher D. Nagano, 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. As to those matters

4

which reflect an opinion, they reflect my personal opinion and judgment on the matter.

5

2.

I reside in Washougal, Washington.

6

3.

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

7

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

8

to protect imperiled species, particularly reptiles and invertebrates such as butterflies, lady

9

beetles, and tiger beetles. I work in conjunction with campaigners, lawyers, policy experts and

10
11

other scientists to achieve this goal.
4.

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

12

endangered species entomologisUecologist, endangered species biologist, Endangered Species

13

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

14

("FWS" or " Service") based in Carlsbad and Sacramento, California, and Albuquerque, New

15

Mexico. At the FWS, I worked on nearly all aspects of the Endangered Species Act, including

16

section 7, habitat conservation plans, listing, recovery, and law enforcement.

17

5.

I was the Chief of the Endangered Species Division at the New Mexico Ecological

18

Services Office for 1 Yi. years. I was responsible for the protection, conservation, and recovery of

19

listed species throughout the Land of Enchantment, including at the US/Mexico border area. I

20

also completed endangered species-related details in five other states.

21

6.

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

22

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

23

County. While at the Natural History Museum, I worked on "soft money' funded projects

24

investigating the western migration of the Monarch butterfly, and comprehensive surveys of the

25

terrestrial invertebrate fauna of two coastal southern California wetlands.

26

7.

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

27

and Environmental Studies; for my graduate work I investigated the international trade in

28

butterflies. Dming this period, I was an intern working on endangered species issues at the

1
Declaration of Christopher D. Nagano ISO Motion for Partial Summary Judgment (4: 19-cv-00872-HSG)

1

Environmental Defense Fund in Washington, D.C. for Michael J. Bean, now retired Deputy

2

Assistant Secretary for Fish, Wildlife and Parks at the Depa.rhnent of Interior. In sum, I have

3

dedicated my career to the scientific research and protection of endangered and threatened

4

species.

5

8.

As a scientist at the Center focused on the conservation and eventual recovery of

6

imperiled animals, especially reptiles and invertebrates, I have a profound professional interest in

7

researching and finding whether certain animal species warrant new or continued federal

8

protection under the Endangered Species Act ("ESA" or "Act") and ensuring that the Act's

9

procedural and substantive protections are enforced. As a veteran of the FWS, I understand the

10

critical role that non-governmental organizations, like the Center, play in ensuring that these

11

procedural and substantive protections are adhered to and cruTied out, particularly the requirement

12

for interagency consultation pursuant to section 7 of the ESA. I am committed to playing this

13

outside monitoring role to ensure that the government is carrying out its statutory duties toward a

14

listed species' continued survival and ultimate recovery in the wild.

15

9.

I have an extensive working knowledge of section 7 of the ESA. During my 27-

16

year career with the FWS, I conducted literally hundreds of informal consultations and many

17

dozens of formal consultations with many Federal agencies ranging from the Bureau of

18

Reclamation to the National Park Service. This involved providing guidance to Federal agencies

19

in the process of complying with the section 7 process, including instruction and assistance in

20

making their effects determinations as to whether their projects were "no effect," "may affect, not

21

likely to adversely affect,' or "may affect, likely to adversely affect" listed species and critical

22

habitat. I also reviewed their projects to ascertain if their project description was accurate, and

23

whether the FWS concuned with their effects determination; and if the action was likely to

24

adversely affect the survival and recovery in the wild of listed species, as well as whether the

25

action was likely to adversely modify or destroy designated critical habitat. If the project was not

26

likely to jeopardize a listed species and/or adversely modify or destroy critical habitat, I made the

27

recommendation for or authorized the anticipated amount of incidental take, and the appropriate

28

reasonable and prudent measures for the project. I am familiar with the new regulations for
2
Declaration of Christopher D. Nagano ISO Motion for Partial Summary Judgment (4 : 19-cv-00872-HSG)

1

section 7 of the ESA that were issued by the Trump Administration on August 27, 2019 (Federal

2

Register 84(166): 44976-45018) and the changes from the previous section 7 regulations.

3

10.

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 Enviromnental Policy Act

6

("NEPA"). I also reviewed projects to ensure compliance with the Fish and Wildlife

7

Coordination Act, Migratory Bird Treaty Act, and the FWS Mitigation Policy of 1956. My

8

efforts involved assessments of project impacts on non-listed wildlife and plants, and their

9

habitats, as well as review of the proposed mitigations and development of additional measures, if

10

11

appropriate.
11.

While at the U.S. Fish and Wildlife Service, one of the issues that I focused on,

12

analyzed, and encouraged other agencies and non-governmental parties to first avoid, and if not

13

possible, to mitigate, was the effect of barriers, such as highways and roadways, on the long-tenn

14

movement oflisted animals and wildlife. The ability of many animals to move to new areas or

15

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

16

extirpated.

17

12.

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

18

project, or as they are now called in the new section 7 regulations, consequences, on listed

19

animals and wildlife. 50 CPR § 402.02 defines "effects of the action" as " .. . all consequences to

20

listed species or critical habitat that are caused by the proposed action, including the

21

consequences of other actions that are caused by the proposed action. A consequence is caused

22

by the proposed action if it would not occur but for the proposed action and it is reasonably

23

certain to occur. Effects of the action may occur later in time and may include consequences

24

occurring outside the immediate area involved in the action." Some consequences, fonnerly

25

known more accurately as indirect effects, can have adverse impacts on listed species that are

26

greater and much longer lasting than the direct effects (also now considered to be consequences)

27

of a project. An example of such a consequence (indirect effect) is silt from the construction of a

28
3
Declaration of Christopher D. Nagano ISO Motion for Partial Summary Judgment (4:19-cv-00872-HSG)

road washing into a pond inhabited by the tadpoles of a listed frog after project construction has
2
3

been completed, and results in the animals dying because their gills become coated with di1t.
13.

I am gravely concerned by the failure of the Department of Defense ("DOD"),

4

Department of Homeland Security ("DHS") and Customs Border Patrol ("CBP") to comply with

5

the ESA for segments El Paso 2 and El Paso 8 of their proposed border wall in New Mexico. As

6

they are required, these agencies failed to consult with FWS on the effects of the proposed border

7

wall on the endangered jaguar (Panthera onca) and its designated critical habitat, threatened

8

Chiricahua leopard frog (Rana chiricahuensis), and endangered and Experimental Nonessential

9

Populations of the Mexican wolf (Canis lupus baileyi) and the Aplomado falcon (Falcofemoralis

10

11

septentrionalis).

14.

Based on my background in the ecology and biology of the jaguar and its critical

12

habitat, and the Chiricahua leopard frog, Mexican wolf, and Aplomado falcon, and my experience

13

with them while I was stationed at the FWS New Mexico Ecological Services Office, as well as

14

my professional experience and knowledge dealing with the effects (=consequences) of human

15

and natural effects on threatened and endangered plants and anin1als, I recognize and understand

16

the credible threat that the border wall construction poses to these four listed animals and critical

17

habitat for the jaguar.

18

15.

El Paso 2 and El Paso 8 are located in the "Bootheel" of New Mexico, a region of

19

the United States and northern Mexico where six distinct biological provinces overlap with a

20

concomitant extremely high diversity of plant and animal species (World Wildlife Fund and Sky

21

Island Alliance.2003. Natural heritage of the Peloncillo Mountain region. Tucson, Arizona).

22

Much of the Bootheel is uninhabited by humans, and still has extensive amounts of natural

23

habitats. These factors make the area among the most diverse biological regions in North

24

America. There are at least 879 species of plants, 89 species of reptiles and amphibians (72% of

25

the 123 species recorded in New Mexico), 91 mammal species (more than all of the mammal

26

species in the entire State of Pennsylvania), and 318 species of birds including 23 species listed as

27

threatened or endangered by the State of New Mexico.

28
4
Declaration of Christopher D. Nagano ISO Motion for Partial Summary Judgment (4: 19-cv-00872-HSG)

1

16.

In May 2019, I visited the Animas Valley of the "bootheel" region of Hidalgo

2

County, New Mexico, to specifically observe the habitats of the jaguar and its critical habitat, the

3

Chiricahua leopard frog, Mexican wolf, Gila monster and other wildlife, and current land uses in

4

the area.

5

17.

The endangered jaguar was historically found throughout the southwestern Unite<l

6

States with occurrences recorded from Arizona, New Mexico, California, Texas, and perhaps

7

Oklahoma and Colorado (M.J. Robinson et al. undated. Suitable habitat for jaguars in New

8

Mexico . Center for Biological Diversity, Tucson, Arizona). Today, only a few individuals

9

remain in the United States as a result of hunting, trapping, poisoning, and habitat loss . El Paso 2

10

is located within 50 miles of recently documented jaguar occurrences, and the project areas for

11

both El Paso 2 and El Paso 8 contain suitable habitat that is essential for the recovery for this

12

endangered animal (ibid) . There are many springs, seeps, stock tanks, and seasonal and

13

permanent springs in this area that provide sources of drinking water for the big cats; and there is

14

an abundance of Coues deer, javelina, rodents, skunks, jackrabbits, and other prey species. Based

15

on the project coordinates that Defendants have provided, El Paso 8 is located adjacent to this

16

designated critical habitat for the jaguar.

17

18.

Only very minimal information has been made available by DOD, DHS, and CBP

18

on El Paso 2 and El Paso 8 -construction methods and equipment, timing of construction, number

19

of construction personnel, night lighting, operation and maintenance, and other basic information

20

which federal agencies routinely supply, even for projects of an emergency nature have

21

apparently not been publically disclosed. The DOD has provided the approximate geographical

22

coordinates (=latitude and longitude) of El Paseo 2 and El Paso 8, but based on my 27 years

23

reviewing projects for their effects on federally listed species, this information is not sufficient for

24

allowing a full assessment of the projects' impacts on wildlife. However, even with the lack of

25

any specificity or meaningful infonnation, it is clear the proposed project will result in harm and

26

harassment to the jaguar. The big cat will avoid using or abandon the area while construction is

27

underway, and when finished, the border wall will result in the significant reduction in its ability

28

to move between the United States and Mexico.
5
Declaration of Christopher D. Nagano ISO Motion for Partial Summary Judgment (4: 19-cv-00872-HSG)

2

19.

Even if El Paso 2 and El Paso 8 are not located within jaguar critical habitat, the

3

area in the Bootheel where these two Border Wall segments are proposed contains one or more

4

habitat components which would be considered primary constituent elements essential to the

5

conservation of the jaguar if they were located within designated critical habitat for this

6

endangered cat. These primary constituent elements include: (a) expansive open spaces in the

7

southwestern United States which are at least 32 to 38.6 2 miles in size; (b) provide connectivity to

8

Mexico; (c) contain adequate levels of native prey species including deer and javelina, as well as

9

medium-sized prey such as coatis, skunks, raccoons, or jackrabbits; (d) include surface water

10

sources within 12.4 miles of each other; (e) contain greater than 1 to 50 percent canopy cover

11

within Madrean evergreen woodland, generally recognized by a mixture oaks, juniper, and pine

12

trees on the landscape, or semidesert grassland vegetation communities usually characterized by

13

tobosa grass or black gamma grass along with other grass species; (f) are characterized by

14

intermediately, moderately, or highly rugged tenain; (g) are below 6,562 feet in elevation; and (h)

15

are characterized by minimal to no human population density, no major roads, and no stable

16

nighttime lighting over any 0.4 mile 2 area.

17

20.

Based on my 27 years administering the Endangered Species Act, including the

18

review and oversight of hundreds of section 7 consultations for federal projects, and my

19

knowledge of the jaguar and other listed species which are highly imperiled, it is my professional

20

opinion that segments El Paso 2 and El Paso 8 along with their associated consequences

21

(=adverse effects) in what is the most important area for this large cat to cross between the United

22

States and Mexico, almost certainly will significantly contribute to the elimination of this

23

imperiled animal in the United States. If the pedestrian wall can keep humans out, it will keep

24

jaguars out. Fewer jaguars entering the United States will result a smaller resident population and

25

fewer individuals available to mate with each other causing a decline and eventual loss of this

26

legendary large cat in this Country.

27
28

21.

The threatened Chiricahua leopard frog inhabits cienegas, livestock tanks, ponds,

reservoirs, streams and rivers in northern Sonora, Chihuahua, and Durango in Mexico, central and
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Declaration of Christopher D. Nagano ISO Motion for Partial SulUlllary Judgment (4:19-cv-00872-HSG)

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southeastern Arizona, and west central and southwestern New Mexico. Its range includes the

2

area where El Paso 2 and El Paso 8 are proposed in the Bootheel. According to the FWS, the

3

animal has continued to decline in New Mexico since it was listed in 2002 (FWS. 2011.

4

Chiricahua leopard frog (Lithobates [=Rana] chiricahuaensis) 5-year review: summary and

5

evaluation. Arizona Field Office, Phoenix, Arizona). The threats to the Chiricahua leopard frog

6

in this area of range include predation by non-native fishes, disease (chrtidomycosis fungus),

7

wildfire, drought, and habitat destruction. El Paso 2 and El Paso 8 will act cumulatively with

8

these factors to reduce the chances of its recovery, including by damaging or destroying the frog ' s

9

habitat and its ability for foraging, resting, breeding, and movement.

10

22.

Based on my 27 years administering the Endangered Species Act, including the

11

review and oversight of hundreds of section 7 consultations for federal projects including many

12

dozens of informal and fonnal consultations for the threatened Cali fomia red-legged frog (Rana

13

draytonii), a listed amphibian species with a similar ecology and biology to the Chiricahua

14

leopard frog, it is my professional opinion the construction and operation of El Paso 2 and El

15

Paso 8 will have consequences (=adverse effects) on the threatened Rana chiricahuaensis.

16

Construction may result in animals being injured, killed, or harassed by equipment, workers, and

17

vehicles, falling into trenches or pits and dying from exposure or suffocating after being covered

18

with dirt and other debris, poisoned by oil, fuel leaks and other chemical contaminants from

19

vehicles and mechanical equipment, eaten by coatis and other omnivorous animals attracted to the

20

work sites by discarded hwnan food and trash; and once the pedestrian wall is in place, loss of the

21

ability to move between breeding ponds and upland areas, loss of aestivation and wintering sites,

22

and being run over by CBP vehicles.

23

23.

The Center for Biological Diversity is aware ofreports from reliable observers

24

who have seen Mexican wolves in the Bootheel region of New Mexico in recent times. The

25

entire region currently contains suitable habitat for this animal to move through the area and find

26

food and shelter, and also includes other biological and physical features that are essential for the

27

Wolf's successful survival.

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Declaration of Christopher D. Nagano ISO Motion for Partial Summary Judgment (4:19-cv-00872-HSG)

24.

The unimpeded movement of Mexican wolves between the United States and

2

Mexico is critical for increasing and maintaining their genetic diversity in both countries, and

3

especially to ensure their survival and recovery in Mexico.

4

25.

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

5

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

6

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

7

prevent the movement of Mexican wolves between the two nations, including animals from the

8

United States into Mexico. The Mexican wolves inhabiting Mexico could also be harassed by

9

construction of the border wall. These impacts-particularly the restrictions on the wolfs

10

movement- undermine the wolfs ability in both the United States and Mexico to survive and

11

recover.

12

26.

The FWS has designated the Mexican wolf on the northern side of the

13

U.S./Mexico border as an Experimental Nonessential Population under section lOU) of the ESA.

14

It is unclear if the authorized take of the Mexican wolf described in the final rule for the

15

Experimental Nonessential Population was intended to include massive habitat destroying,

16

movement blocking projects, such as the proposed border wall. The Experimental Nonessential

17

Population designation did not include endangered Mexican wolves that inhabit the Republic of

18

Mexico. Therefore, the section 9 prohibitions of the ESA against harm of a listed animal apply to

19

the endangered Mexican wolves in Mexico who could be harmed through the El Paso 2 and El

20

Paso 8 by eliminating the ability of individuals from the US dispersing into Mexico, where they

21

will prevent genetic problems such as inbreeding by providing much needed genetic diversity. In

22

tum, wolves from Mexico will be prevented from entering the US and providing genetic diversity

23

in to the experimental non-essential population. Therefore, any Mexican wolf residing in Mexico

24

is currently listed as endangered under the ESA, and is not part of the Experimental Nonessential

25

Population designated for this species, and the effects of the proposed border wall on them must

26

be analyzed by DOD, DHS and CBP pursuant to section 7 of the ESA. Failure to consult by

27

DOD, DHS and CBP not only could violate section 7(a)(2) of the ESA, but the border wall could

28

eliminate the possibility of the survival and recovery of the endangered Mexican wolf in the

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Republic of Mexico, and thus all of these federal agencies, as well as the FWS by remaining

2

silent, would violate section 7(a)(l) of the ESA.

3

27.

The construction of El Paso 2 and El Paso 8 will likely also hann the federally -

4

protected Aplomado falcon. This rap tor is present in the bootheel of New Mexico and habitat

5

exists in the project area and adjacent areas in Mexico (R.A. Meyer and S.O. Williams. 2005.

6

Recent nesting and current status of Aplomado falcon (Falco femoralis) in New Mexico. North

7

American Birds 59(2): 352-356; FWS. 2014. Northern Aplomado falcon (Falco femoralis

8

septentrionalis). 5-year review summary and evaluation. New Mexico Field Office,

9

Albuquerque, New Mexico). The dispersal of falcons from the US into the Republic of Mexico

10

may be preventing long-tenn problems such as the inbreeding of closely related individuals by

11

providing genetic diversity. Again, the FWS has designated this imperiled raptor on the northern

12

side of the U.S./Mexico border as an Experimental Nonessential Population pursuant to section

13

1O(j) of the ESA. Again, the Experimental Nonessential Population designation does not include

14

the endangered Aplomado falcons on the Mexican side of the U.S./Mexico border. Therefore, the

15

section 9 prohibitions of the ESA protecting listed animals apply to the birds from Mexico which

16

could be harmed or harassed by construction activities of the proposed border wall for El Paso 2

17

and El Paso 8. In 2005, agricultural development resulted in the extensive conversion of portions

18

of occupied habitat in the State of Chihuahua, Mexico . The Sonoran Joint Venture, a partnership

19

of organizations and individuals in the southwestern United States and northwestern Mexico,

20

including the FWS, expressed concern that the extirpation of the Aplomado falcon in Chihuahua

21

in the coming decades is imminent (https://sonoranjv.org/aplomado-falcons-chihuahua. Accessed

22

on September 18, 2019). And just as in the case of the Mexican wolf, any individual of the

23

Aplomado falcon found within Mexico is not part of the Experimental Nonessential Population,

24

so the effects of the proposed border wall to the population in Mexico must be analyzed by DOD,

25

DHS and CBP. Failure to consult by DOD, DHS and CBP, and the continued silence of the

26

FWS, would violate the requirements of section 7(a)(2) of the ESA.

27
28

28.

It is critical that DOD, DHS and CBP comply with section 7(a)(2) of the ESA

because it mandates that federal agencies must ensure they do not jeopardize listed species or
9
Declaration of Christopher D . Nagano ISO Motion for Partial Summary Judgment (4: 19-cv-00872-HSG)

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adversely modify or destroy designated critical habitat. Neither DOD, CBP nor DHS have

2

completed, let alone initiated the section 7 process for the jaguar and its critical habitat, the

3

Chiricahua leopard frog, the endangered and Experimental Nonessential Popu1ations of the

4

Mexican wolf and the Aplomado falcon, nor on members of the wolf and falcon which are listed

5

as endangered species. It is the section 7 process which should reveal effects to these four

6

animals, including whether the proposed action will jeopardize them, whether the proposed action

7

will result in adverse modification or destruction of critical habitat, and the appropriate

8

conservation measures for the project. Without this fundamental adherence to the law, DOD,

9

CBP and DHS will not be fulfilling their statutory responsibilities under section 7(a)(2) of the

10

ESA for the endangered jaguar and its designated critical habitat, threatened Chiricahua leopard

11

frog, endangered Mexican wolf and endangered Aplomado falcon. In addition, these three

12

federal agencies and the silent FWS apparently will not be carrying out any recovery actions

13

pursuant to section 7(a)(l) of the ESA, thereby exacerbating the negative effects of the border

14

wall. There will be irreparable harm to these four listed species and critical habitat without the

15

completion of section 7 consultation by these three federal agencies, and the currently silent

16

FWS.

17

29.

In addition to the ESA, I am very disturbed by DOD, DHS and CBP's failure to

18

comply with NEPA. Given the lack of an adequate assessment of the project on the environment,

19

the potential effects of the proposed project on sensitive habitats, as well as non-listed, but

20

imperiled species, remains unknown. The border wall construction and associated activities

21

including vehicle traffic, road building, horseback and quad patrols, night lighting, and other

22

associated human and law enforcement activities could permanently alter the geography, impact

23

native vegetation and plant communities, especially by improving habitat conditions for invasive

24

weeds, and adversely impact the existing natural ecosystems.

25

30.

The earth moving and associated disturbance caused by border wall construction

26

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

27

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

28

native plants, and native animals that are dependent on the native vegetation for food, as well as

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Declaration of Christopher D. Nagano ISO Motion for Partial Summary Judgment (4: l 9-cv-00872-HSG)

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

2

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

3

trailers, quads, and the hooves and fur of their patrol horses . Listed species, wildlife, and plants

4

across the surface of the Earth are imperiled by invasive exotic plants. In the 1990s, then

5

Secretary of Interior Bruce Babbitt warned than invasive species are one of the biggest threats to

6

listed species.

7

31.

The Gila monster (Heloderma suspectwn), is an iconic large orange and black

8

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

9

Texas into Arizona. This legendary reptile is listed as endangered by the State of New Mexico.

10

Its 2017 recovery plan issued by the New Mexico Department of Game and Fish (Gila Monster

11

(Heloderma suspectwn) Recovery Plan by John Bulger dated April 5, 2017) and other

12

publications (W.G. Degenhardt et al. 1996. Amphibians and reptiles of New Mexico. University

13

ofNew Mexico Press, Albuquerque, New Mexico; C.H. and E.M. Ernest. 2011. Venomous

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reptiles of the United States, Canada, and northern Mexico Volume I Heloderma, Micruroides,

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Micurus, Pelamis, Agkistrodon, Sistrurus. John Hopkins University Press, Baltimore, Maryland;

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D.D. Beck. 2005. Biology of Gila monsters and beaded lizards. University of California Press,

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Berkeley, California), document the animal has been collected or observed in at least one location

18

in the bootheel of New Mexico, and is found throughout this region of the State.

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32.

Gila monsters in New Mexico are typically found in Chihuahuan desert scrub, and

20

grassland habitat most commonly associated with rocky areas of mountain foothills and canyons.

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Dominant vegetation in occupied and suitable sites includes creosote bush, catclaw, snakeweed,

22

ocotillo, mesquite, juniper, cacti, sotol, and numerous grasses. Small trees, shrubs, and

23

herbaceous vegetation provide important cover and food for the Gila monster's prey. The

24

recovery plan and the other publications reported that Gila monsters in New Mexico prefer

25

relatively coarse gravelly conglomerate soils and areas of loam and sand. Of paramow1t

26

importance is availability of suitable refuge shelters, which occur in rock cavities and crevices,

27

pack rat mounds, and burrows created by other reptiles or mammals.

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Declaration of Christopher D. Nagano ISO Motion for Partial Summary Judgment (4: 19-cv-00872-HSG)

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33.

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

2

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

3

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

4

they stay within their "home" area, according to one herpetologist (D.D . Beck. 2005. Biology of

5

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

6

34.

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

7

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

8

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

9

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

10

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

11

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

12

35.

The border wall will prevent a nwnber of native wildlife species from moving in

13

this region of Mexico and the United States, resulting in their inability to successfully find food,

14

water, mates, and shelter. These animals include Gould's wild turkey, mountain lions, javelinas,

15

badgers, gray foxes, and Coues deer.

16

36.

Cun-ently, we are seeing a dramatic global collapse of species that were

17

widespread and once common or even abundant. A recent scientific paper documented the loss

18

of 3 billion native birds in North America since 1970 or 29% of the abundance over the last 48

19

years, and the scientists who conducted the study expressed concern about avifaunal collapse with

20

concomitant loss of ecosystem integrity, function, and service. (K.V. Rosenberg et al. 2019.

21

Decline of the North American avi fauna. Science 365(6459): 1228-1229)). The very real

22

possibility exists that another familiar and once abundant inhabitant of much of North America,

23

the monarch butterfly, will disappear from throughout large regions of the continent within the

24

span of a few decades, if not sooner. The failure by DOD, DHS and CBP to adequately analyze

25

the effects of the construction and operation on wildlife, let alone acknowledge the need to assess

26

the impacts on the environment, will result in the unnecessary loss of native plants and animals,

27

the blocking of key movement con-idors for listed animals and wildlife across the US/Mexico

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12
Declaration of Christopher D. Nagano ISO Motion for Partial Summary Judgment (4: l 9-cv-00872-HSG)

1

border, and "nickle and dime" even some common and abundant species to the point where they

2

will become imperiled and require the protection of the ESA to prevent their extinction.

3

37.

These injuries to listed species, wildlife, and the environment would be redressed

4

if DOD, DHS and CBP immediately and without delay complete consultation pursuant to section

5

7 of the ESA with the FWS, and complete the environmental review process as required under

6

NEPA. The Bootheel contains one of the most biologically diverse and ecologically important

7

areas in the United States and northern Mexico, and El Paso 2 and El Paso 8 almost certainly will

8

spell doom or extreme danger to many of the plants and animals who call this region home.

9

Unfortunately, the DOD, DHS and CBP, with the apparent acquiescence of the FWS, continue to

10

maintain the shroud of darkness over the border wall which they brazenly and shamelessly

11

dropped over the project at its initiation which conceals the deleterious effects of their plan on

12

listed species, and wildlife. I am hopeful that NEPA and ESA analyses, if done properly and in

13

good faith by DOD, DHS and CBP, will ensure the survival and recovery in the wild of the

14

endangered jaguar, threatened Chiricahua leopard frog, endangered Mexican wolf and

15

endangered Aplomado falcon, and the New Mexico State-listed Gila monster, and avoid adverse

16

modification or destruction of the jaguar' s critical habitat, in addition to maintaining the health of

17

the greater ecosystem in the New Mexico borderlands region. Requiring DOD, DHS and CBP to

18

complete the NEPA process and ESA consultation will surely redress the irreparable harms to

19

listed species, wildlife, and the enviromnent.

20

21

I declare under penalty of perjury under the laws of the United States that the foregoing is true

22

and correct.

23

24

Executed on October

.8_,2019, at Portland, Oregon.

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27

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Declaration of Christopher D. Nagano ISO Motion for Partial Summary Judgment (4: 19-cv-00872-HSG)

EXHIBIT 5

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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
SPARSH S. KHANDESHI
LEE I. SHERMAN
JANELLE M. SMITH
JAMES F. ZAHRADKA II
HEATHER C. LESLIE (SBN 305095)
Deputy Attorney General
State Bar No. 305095
1300 I Street, Suite 125
P.O. Box 944255
Sacramento, CA 94244-2550
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Plaintiff State of California
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
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 MYLES
TRAPHAGEN IN SUPPORT OF
MOTION FOR PARTIAL SUMMARY
JUDGMENT REGARDING SECTION
2808 PROJECTS AND NEPA

Plaintiffs,
Decl. of Myles Traphagen ISO Partial MSJ Re: Section 2808 Projects & NEPA (4:19-cv-00872-HSG)

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v.
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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 Myles Traphagen ISO Partial MSJ Re: Section 2808 Projects & NEPA (4:19-cv-00872-HSG)

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I, Myles Traphagen, declare as follows:
1.

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

witness could competently testify thereto.
2.

I am providing this declaration in response to the 10 U.S.C. section 2808 transfer of

5

Department of Defense funds to build primary and secondary steel bollard fencing in Hidalgo

6

County, in southwestern New Mexico, an area referred to commonly as the “Bootheel.” This

7

declaration specifically pertains to El Paso Project 2 and El Paso Project 8. I have worked on

8

both sides of the United States-Mexico border in this region for 22 years as a biologist.

9
10

Background and Qualifications
3.

I hold a Master of Science Degree in Geography from the University of Arizona, and

11

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

12

Studies. I conducted research in the Bootheel for my Master’s Degree resulting in my thesis,

13

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

14

and Mexico: The border divides a species.” The white-sided jackrabbit is a New Mexico state-

15

listed threatened species, and its only population occurs exclusively in the same valleys where El

16

Paso Project 2 and El Paso Project 8 are being constructed.

17

4.

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

18

Mexico border region and in Mexico. From 1996 to 1998, I worked for the US Fish and Wildlife

19

Service at San Bernardino National Wildlife Refuge in southeast Arizona conducting bird

20

surveys, native fish surveys and recovery of Rio Yaqui fishes.

21

5.

From 1998 to 2008, I conducted research as a consultant for the US Forest Service

22

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

23

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

24

period I also began researching the white-sided jackrabbit.

25

6.

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

26

Species Fund in New Mexico inventorying vegetation, monitoring bison and prairie dog

27

reintroduction, and rewilding the Bolson tortoise from Durango, Mexico. I have held permits

28

from the New Mexico Department of Game and Fish to survey wildlife in the state.
1
Decl. of Myles Traphagen ISO Partial MSJ Re: Section 2808 Projects & NEPA (4:19-cv-00872-HSG)

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7.

From 2007 to 2014, I was a Bureau of Land Management Authorized Biologist and

2

worked as a consultant on numerous renewable energy projects in California and Nevada,

3

surveying and translocating desert tortoise and inventorying rare plants and wildlife.

4

8.

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

5

and Fish to assess the population status of the white-sided jackrabbit in New Mexico, specifically

6

in the El Paso Project 2 and 8 project areas. The results of this survey suggested that roadkill by

7

the U.S. Border Patrol was a significant factor leading to a threefold population decline in less

8

than decade.

9

9.

My current employment as Borderlands Program Coordinator with Wildlands

10

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

11

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

12

designing projects for mitigating road and highway impacts and enhancing habitat connectivity.

13

10.

I am also the Science Coordinator the Malpai Borderlands Group. In that role I

14

implement research and monitoring projects such as wildlife, vegetation, climate and weather

15

monitoring, fire and grazing research and review, and coordinate a large array of projects that

16

relate directly to conservation projects in the borderlands of Arizona and New Mexico. This work

17

occurs in the El Paso Projects 2 and 8 project areas in New Mexico, and the Tucson Project 5 area

18

in Arizona.

19

11.

In this declaration, I provide several examples specific to the El Paso 2 and El Paso 8

20

project sites, and to the border region more generally, to illustrate how these projects will cause

21

irreparable harm to wildlife.

22

The Floral and Faunal Diversity of the El Paso 2 and 8 Project Areas: What’s at Risk

23

12.

I have analyzed the proposed border-infrastructure projects including El Paso Projects

24

2 and 8, as outlined in the table attached as Exhibit 1 to the Declaration of Heather Leslie (“2808

25

Project Table”), and as described in the “List of Military Construction Projects” that Defendants

26

filed in this matter on September 3, 2019, [ECF Doc. No. 206-2] (“2808 Project List”). These

27

projects involve the construction of primary and secondary pedestrian fencing that will be 18 to

28

30 feet tall, based on the bollard-style pedestrian fencing used for other recent border-barrier
2
Decl. of Myles Traphagen ISO Partial MSJ Re: Section 2808 Projects & NEPA (4:19-cv-00872-HSG)

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projects that Defendants have undertaken. El Paso 2 and 8 also include the construction of roads

2

and installation of lighting.

3

13.

The Bootheel region, where El Paso Projects 2 and 8 are being constructed, is

4

extremely high in both plant and wildlife diversity and is the pinch point for ecological diversity

5

and species migration and dispersal in the western North American continent. The Bootheel

6

includes the Peloncillo and Sierra San Luis Mountains where 879 plant species are known to

7

occur. 25 percent of all the plant species in New Mexico occur in this region, which occupies only

8

about 2 percent of the state’s area. The area harbors numerous biotic communities which include

9

riparian corridors, Chihuahuan desert scrub, desert grassland, oak woodland, pine-oak forest and

10

spruce-fir at higher elevations. The Peloncillo Mountains are the only mountain range that

11

directly connects the Sierra Madre of Mexico to the Rocky Mountains in the United States. The

12

exchange of plant and animal diversity between the northern and southern parts of the North

13

America Continent reaches its apex here.

14

14.

The great diversity of plants and habitat in the Peloncillo region supports an equally

15

rich fauna where many species of invertebrates, reptiles, birds, and mammals flourish, including

16

an impressive number of endemic species. For example, 89 species of reptiles and amphibians

17

live in the Peloncillo Mountains, more than any other mountain range in New Mexico. Just one

18

small area of two square miles, Antelope Pass, harbors the highest lizard diversity of any

19

comparably sized area in the United States, and there are 14 native amphibian species despite the

20

xeric nature of the area. Mammal diversity is equally high as Hidalgo County has 91 recorded

21

species, and 75 mammal species have been recorded in the El Paso 2 and 8 project areas, a higher

22

number than Yellowstone National Park. Many birds are resident year-round, while others find

23

the region suitable habitat for summer nesting or wintering.

24

15.

One crucial ecological feature of Greater Peloncillo Ecosystem is the number of intact

25

native plant and animal species existing with little competition from exotic, introduced or

26

invasive species. The building of border walls will bring a high likelihood of introducing exotic,

27

non-native plant species that could drastically alter the ecological integrity and balance of the

28

system. Following the construction of the vehicle border barrier in 2008 in the Animas Valley in
3
Decl. of Myles Traphagen ISO Partial MSJ Re: Section 2808 Projects & NEPA (4:19-cv-00872-HSG)

1

the same location that is now the proposed El Paso 2 Project (5.1 miles east of the Arizona/New

2

Mexico state line), non-native South African lovegrasses were introduced. The entire 60-foot

3

wide Roosevelt Easement was bulldozed to bare earth, and then heavy equipment ran across the

4

site for 6 months. The Animas Valley had been free of these exotic grasses, and the only vector

5

for spreading these seeds would have been the tires of the heavy equipment and vehicles that had

6

access to gates that are normally locked to outside traffic (Animas Foundation vegetation

7

monitoring data 2008 to 2018). Lehman lovegrass (Eragrostis lehmanniana) is the chief culprit.

8

During the 2010 surveys for the white-sided jackrabbit (Lepus callotis), no hares were observed

9

in the grasslands where the exotic Lehman lovegrass had taken over the previous two years.

10

The White-Sided Jackrabbit- El Paso 2 and 8 Jeopardize the Continued Existence of this

11

New Mexico Threatened Species:

12

16.

Currently, the only area that the white-sided jackrabbit (Lepus callotis gaillardi)

13

inhabits in the United States is in the Animas and Playas Valleys, where the proposed El Paso 2

14

and 8 Projects are being constructed. This New-Mexico threatened species is already in distress

15

and its numbers are falling due to habitat loss and roadkill incidents from U.S. Border Patrol

16

vehicles which increased dramatically after Customs and Border Protection completed road

17

improvements in 2008. The current jackrabbit population is estimated to be 61 hares (Range

18

between 18 and 103 (CI= 42, SD .326)). This represents a 65% reduction in the population since

19

the last reliable estimates were made in 1977 and 2004.

20

17.

The jackrabbit’s habitat extends from the Animas and Playas Valleys into Mexico, as

21

shown on the maps attached as Exhibits A and B to this declaration. I created these maps using

22

data that I obtained when I researched the white-sided jackrabbit and its habitat and distribution

23

for my Master’s thesis, and also when I worked for the New Mexico Department of Game and

24

Fish to assess the hares’ population status in New Mexico.

25

18.

On the U.S. side the hares chiefly live in the Animas Valley, as shown in detail on the

26

map attached as Exhibit B. These jackrabbits access their habitat in Mexico by going east and

27

crossing through a gap in the San Luis Mountains into the Playas Valley, and then into Mexico.

28

Hares in Mexico cross into the U.S. using this same route. The hares cross back and forth to avoid
4
Decl. of Myles Traphagen ISO Partial MSJ Re: Section 2808 Projects & NEPA (4:19-cv-00872-HSG)

1

predators, and to access food, water and mates. This habitat corridor (shown in blue on the maps

2

and labeled “Best Fit Corridor”) is the sole route the hares can utilize to access habitat on both

3

sides of the border because they cannot navigate the mountainous terrain that surrounds the

4

Animas and Playas Valleys. El Paso Project 8 completely blocks this habitat corridor, and the

5

primary and secondary pedestrian fence constructed there would cut off the last remaining

6

population of the white-sided jackrabbit in the United States. The eastern portion of El Paso 2

7

also blocks a habitat corridor for the hare. The outlook for the jackrabbit’s survival in New

8

Mexico and the United States is dismal if El Paso 2 and 8 are built due to a variety of factors that

9

include drought, climate change and a major increase in fire frequency since 1987. Non-native

10

plant invasion caused by construction of the 2008 vehicle barrier has also contributed to fuel

11

loading that has increased fire frequency, as noted in Exhibit C, a map I created that depicts fires

12

that occurred in the El Paso 2 and El Paso 8 project areas. The 2002-03 drought was considered

13

the worst drought in recorded history due to higher temperatures and lower humidity than past

14

droughts, such as the drought of the 1950’s. From 2000 to 2010 the mean number of white-sided

15

jackrabbits per survey (one of the standard measures used for line-distance sampling) had

16

declined by 55%. See Exhibit D attached to this declaration, which is a chart I prepared

17

illustrating this decline. From 1976 to 2010, suitable white-sided jackrabbit habitat was reduced

18

from 11,993 hectares to 5,838 hectares, representing a 51.3% loss of habitat in a 33-year period.

19

In a time of changing climates that are favoring hotter, drier conditions, arid lands mammals, like

20

the white-sided jackrabbit, need more options--not fewer--to ensure their survival. At the current

21

population level of 61 estimated individuals, genetic inbreeding is likely to be an issue. The

22

importance of genetic introgression from alternate populations is paramount. The US population

23

of L. callotis is already inherently isolated by virtue of complex geography. The introduction of a

24

double-barrier steel bollard pedestrian fencing would be the most significant event to alter the

25

evolutionary history of the white-sided jackrabbit since the close of the Ice-Age 10,800 years ago.

26

19.

Based on the pedestrian fencing in other border-barrier projects that Defendants have

27

recently constructed, my understanding is that for El Paso 2 and 8 the fencing will be 18 to 30

28

feet high, and include steel concrete-filled bollards spaced four inches apart. The jackrabbits
5
Decl. of Myles Traphagen ISO Partial MSJ Re: Section 2808 Projects & NEPA (4:19-cv-00872-HSG)

1

cannot fit through the 4-inch gaps in this bollard-style pedestrian fencing because they are too big

2

and have a body width that exceeds 4 inches. Therefore, El Paso 2 and 8 will completely block a

3

critical habitat corridor for this already imperiled species and make its survival in the U.S.

4

unlikely.

5

Border Wall Construction Will Negatively Impact Jaguar Recovery

6

20.

Construction of El Paso 2 and 8 will also harm the federally endangered jaguar

7

(Panthera onca), as both projects are immediately adjacent to the jaguar’s critical habitat which

8

was designated by the US Fish and Wildlife Service. See Exhs. A, B and E to this declaration.

9

Unit 5 of the jaguar’s critical habitat abuts the western portion of El Paso Project 2, and Unit 6 is

10

adjacent to El Paso Project 8, as shown in the map I created that is attached to this declaration as

11

Exhibit E. Though jaguars are elusive and are not radio-collared (making it difficult to definitely

12

confirm the number of jaguars present in the Bootheel), jaguars have been documented in this

13

region, including on conservation lands that directly adjoin the location of El Paso 2 Project in the

14

Animas Valley.

15

21.

Habitat connectivity is critical to the jaguar’s survival, and was a key factor in

16

designating its critical habitat as mandated by the U.S. Endangered Species Act. Wildlife

17

corridors (which facilitate habitat connectivity) are not just arbitrarily drawn on maps to illustrate

18

one’s perceived impression of wildlife movement patterns. Rather, when identifying and

19

predicting wildlife corridors and connectivity, complex sets of covariates (factors) are

20

incorporated into quantitative models to determine which corridors the species in question

21

actually utilizes. Common covariates include: slope, ruggedness, vegetation, prey and predator

22

presence, proximity to water, roads, human settlements, and other significant factors that may

23

affect wildlife movement. Two published models using two different methods, Circuitscape,

24

which is based upon the principles behind electrical current flow and resistance, and Least Cost

25

Distance modeling, have arrived at similar spatial models regarding jaguar corridors and optimal

26

habitat. They show that El Paso 2 and 8 will impact the eastern-most corridor of the critical

27

habitat because they will bisect the intracontinental jaguar corridor by creating an impermeable

28

barrier. In corridor modeling, most variables that are incorporated, such as ruggedness and
6
Decl. of Myles Traphagen ISO Partial MSJ Re: Section 2808 Projects & NEPA (4:19-cv-00872-HSG)

1

vegetation, are malleable, and therefore are simply impedances and obstacles to wildlife. But a

2

steel border wall with the gaps of only 4 inches between the bollards will amount to an

3

impenetrable barrier that has never been seen in the entire evolutionary history of jaguar (and all

4

wildlife) of North America in this region.

5

22.

The jaguar’s survival depends on it being able to access habitat on both sides of the

6

U.S.-Mexican border to access prey, mate and suitable habitat. The El Paso Projects impede the

7

jaguar’s recovery by blocking a key wildlife corridor.

8

Harms to Other Wildlife Species

9

23.

El Paso Projects 2 and 8 will also block habitat corridors, in both Hidalgo and Luna

10

Counties, for many other wildlife species that currently cross back and forth over the border to

11

access habitat, vegetation, water and other resources. Common species in the project areas

12

include mule deer, bighorn sheep, pronghorn antelope, mountain lions and black bears, all of

13

which are covered by New Mexico’s Wildlife Corridors Act which recognizes the need to create

14

and preserve habitat corridors for these and other species. Javelina and other more common

15

species also utilize habitat in the U.S. and Mexico. The El Paso 2 and 8 projects, particularly

16

when viewed cumulatively with other recent border-barrier projects such as El Paso Project 1, are

17

blocking wildlife corridors for these species and impeding their access to resources necessary for

18

their survival.

19

24.

20
21
22

These border-barrier projects also negatively impact wildlife corridors for the

Mexican wolf which is endangered under both the New Mexico and U.S. endangered species acts.
I declare under penalty of perjury that the foregoing is true and correct and that this
declaration was executed on October 9, 2019 in Tucson, Arizona.

23
24
25
26
27
28
7
Decl. of Myles Traphagen ISO Partial MSJ Re: Section 2808 Projects & NEPA (4:19-cv-00872-HSG)

EXHIBIT A

Overview Map of Proposed El Paso

2

and 8 (i &

2)

Project Areas
-,

I
I
I

I
I

I
I

:r.
;::

I

I

Cci:,,ole

I
CED~R MOUNTAINS

H ills

I

"<:

~- - .. - ~

I

'

Unit 5 of Jaguar
Critical HabitatPelonc illos

CEDAR MOU

Only Popu lation of t he
White -sided Jackrabbit
(Lepus call ot is) in the Un ited Stat es .
Populat ion 61 hares in 2010

p.nimas Foundation
Conservation Lands

I
Apc,C1'18Hlls 1

-<

>
J-

:,.

SIG HATCHEThlOUNTAI

,-

~

~-------1

Unit 6 of Jaguar
Crit ica l Habitat San Lu is
-

El Paso 2 Primary (2808 Funds)

-

El Paso 8 Primary & Secondary (2808 Funds)

-

Only Migration Corridor for the
Wh ite-sided Jackrabbit t o the United States .
All models and records verify that th is
is only known crossing point from
Mexico t o US in proposed El Paso 8

Tucson 3 (284 Funds)

White-sided jackrabbit migration corridor
-

White-sided jackrabbit migration corridor model 2014
Lepus callotis Best Fit Corridor

o

D

White-sided Jackrabbit- All known populations

\

\
\

Jaguar Critical Habitat Units 5 & 6

•
•

0

2019 Jaguar Records
Jaguar occurrences

0

Jaguar Connectivity Model USFWS

0

$0.823531
$6.258838
$21.00005
- - Ch iricahua Leopard Frog Crit ical Habitat
Animas Foundation Conservation Easements

r+

Border Monuments 64 and 63

10

US_Mexico_Border_Crossings

0

0

Map by Myles B. Traphagen
Sources: Esri, USGS, NOAA, Sources: Esri, Garrn i

EXHIBIT B

>
(/l

<:

r

This is only possible connected corridor
for the hare since this is a low gap in the
Continental Divide and high mountains exist
to the south and north .

.,

Antelope
Wel ls
0

El Paso

Unit 6 of Jaguar
Critical Habitat-San Luis

2

Hares migrate up through Playas Valley
on east side of Continental Divide

,

Janos Biosphere Reserve
El Paso 2 Primary (2808 Funds)
El Paso 8 Primary & Secondary (2808 Funds)
White-sided jackrabbit migration corridor
Lepus callotis Best Fit Corridor

o

White-sided Jackrabbit- All known population

N

Jaguar Critica l Habitat Units 5 & 6

0

A

2019 Jaguar Records
Jaguar occurrences
Chiricahua Leopard Frog Critica l Habitat
Animas Foundation Conservation Easements

C
-i+

US_Mexico_Border_Crossings
Border Monuments 64 and 63

0

2.5

5

10 Miles
I

Map by Myles B. Traphagen
Sources: Esri, USGS, NOAA, Sources: Esri, Garmin, USGS, NPS

EXHIBIT C

Wildfire and Drought Effects on White-Sided Jackrabbit Movements and Migration

2005 A

With a significant increase in wildfire frequency
since 1987, hares are forced to move more
to find suitable habitat when their homelands
burn. In fire years they may need to move back
and forth across the border more frequently in
order to find good forage and safe habitat for
them and their young

),...

-

·;.,;t

8

0

~u
z

0

N

MVD?
P RACHlJTE

<

1994 A
1994'
Adobe Fire
19896

B

996A

0

199H

Bo
Field Fire I'h. 'l

Jm o
-.

l ~N

1994Q

):,,

2005C

Walnut

r-

1994 F

Walnut

1992

r-

2001 A.
1992 B

0

2001 B

0
1994 P
Black
Point Batta l,on
Fie
Fire
1994 M

Eicks Draw-Lynch

2000 D

Center Peak
199H

HILO-PE
'li<

1998 B
Bonus Fire
Deer Creek
Are

<

1994 H
2000A
CI011erdale 2

..:. , US_Mexko llorder Crossings
r.1 Paso 8 Primar}' & Scco ,nlary (2808 Fund,)
f.l Paso 2 P,•im.~ ry (2So8 r,1iul~)
DI I •84 Border Wall- Tuc;;on J
O While•sidcd jac~r.1bbit - All known populations
2019 Jagu..i r Records

.
. ..., ' .s- '

1994 K
2001 D

<I'

Antelope
Wells

-

Janos Biosphere Reserve

Q

-

-

ChiricahuJ Lco1x1rd Frog Crll ic:.J I ll ilhilal
Lcpui. c.allo1is Bes1 Fie Corridor·
White,,.sided Jackrahbit ligration Corridor

Wildfire Events 1987 to

20 11

year
'S l()S8

s ,990
s 1~92

S1993

<1994
,;1998
S20UU

0

2.5

5

10 Miles

I

S 2.(JC) I

Sources: Esri, USGS, NOAA, Sources: Esri, Garmin,

GS. NPS

EXHIBIT D

4.0

6.0

8.0

10.0

12.0

14.0

16.0

1976

14.3

1981

7.6

1997

13.6

1998

10.9

1999

10.9

White-sided Jackrabbit (Lepus callotis)
Mean # of hares per survey 1976-2010

2000

9.3

2001

11.7

2010

5.3

EXHIBIT E

Map of Recent Jaguar Occurrences Near Proposed El Paso

2

Project

Northern Recovery Unit 5
of Jaguar Critical Ha bitatPeloncillos

0

0
0

l/1

0

;

o'b

Second Photograph of
Live Jaguar in US taken
by Wa rner Glenn m

0
0

Ch

Vl'rd.11 l'Q

2006

Spring 2019 photos of
Jaguars by Cuenca Los
Ojos cameras

-

Northern Recovery Unit 6
of Jagua r Critica l HabitatSan Luis

El Paso 2 Primary (2808 Fu nds)
El Paso 8 Primary & Secondary (2808 Funds)

Q

2019

Jaguar Records

Jaguar occurrences
~ Jaguar Critical Habitat Units

O
-

Q

5& 6
White-sided Jackrabbit- AH known populations
White-sided Jackrabbit Migration Corridor
Chiricahua Leopard Frog Critical Habitat
Border Monument 64 and 63

0

1

2

4 Miles

Map by Myle B. T raphagen
So y rces: Esri, USGS, NOAA, Sources: Esri, Garmin, USGS, NPS

EXHIBIT 6

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

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
SPARSH S. KHANDESHI
LEE I. SHERMAN
JANELLE M. SMITH
JAMES F. ZAHRADKA II
HEATHER C. LESLIE (SBN 305095)
Deputy Attorneys General
1300 I. St., Suite 125
P.O. Box 944255
Sacramento, CA 94244
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Plaintiff State of California

13
14

IN THE UNITED STATES DISTRICT COURT

15

FOR THE NORTHERN DISTRICT OF CALIFORNIA

16

OAKLAND DIVISION

17
18
19
20
21
22
23
24
25
26

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
VANDERPLANK IN SUPPORT OF
PARTIAL MOTION FOR SUMMARY
JUDGMENT REGARDING SECTION
2808 PROJECTS AND NEPA

27
Plaintiffs,
28
Decl. of Sula Vanderplank ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)

1
v.
2
3
4
5
6
7
8
9
10
11
12
13
14
15

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.

16
17
18
19
20
21
22
23
24
25
26
27
28
Decl. of Sula Vanderplank ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)

1

I, Sula Elizabeth Vanderplank, declare as follows:

2

1.

3

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.

4

Professional Background

5

2.

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

well as my expertise in the California-border region.

15

3.

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

16

at prominent regional research centers including: San Diego Natural History Museum (SDNHM)

17

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

18

Aquarium (CMA) since 2015.

19

4.

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

20

California called Terra Peninsular AC, and I serve on the board of the following non-profit

21

organizations: California Botanical Society, Southern California Botanists, Conservación de

22

Fauna del Noroeste AC (FAUNO), and for the research network “Next Generation of Sonoran

23

Desert Researchers.” I am also a rare plant botanist for the California Native Plant Society

24

(CNPS), Baja California Chapter.

25

5.

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

26

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

27

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

28

part of my postdoctoral fellowship at the SDZG focus on evaluating the conservation status of
1
Decl. of Sula Vanderplank ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)

1

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

2

sides of the U.S./Mexico border. Specifically, we are developing conservation seed banks for

3

these plants, as well as taking samples for genetic research, and recording population data and

4

threats for each plant occurrence.

5

6.

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

6

impacts of the federal government’s border wall projects being constructed in California, with a

7

focus on the proposed construction near San Diego at Otay Mountain (San Diego Project 4), and

8

at the Tecate Port of Entry (San Diego Project 11) (collectively, “Projects” or “San Diego Border

9

Wall Projects”). The Project areas include near-pristine habitat that will be irreparably harmed by

10

the Projects’ construction. These two Projects alone, despite including just 6.5 miles of fencing (3

11

miles for San Diego Project 11 and 3.5 miles for San Diego Project 4), will most likely cause

12

irreparable and irreversible impacts to at least 40 Plants of Conservation Concern, including 24

13

that are rare, threatened, or endangered in California (and eligible for listing). Three of the plants

14

are listed as rare, threatened or endangered at the state and federal levels. The Project areas also

15

include multiple fragile and sensitive habitats that will be irreparably harmed by the Projects’

16

construction.

17

Assumptions on Project Activities and Expected Impacts

18

7.

In developing my opinion about the biological impacts from the San Diego Border

19

Wall Projects, I have relied on the “List of Military Construction Projects” that Defendants filed

20

in this matter on September 3, 2019 [ECF Doc. No. 206-2] (“2808 Project List”). I also reviewed

21

the table containing the 2808 Project Coordinates that is attached as Exhibit 1 to the Declaration

22

of Heather Leslie. The construction and installation of border fencing as part of these Projects

23

will cause significant environmental impacts.

24

8.

At the time of writing (Oct 2019), the information available on the potential impacts

25

from the San Diego Border Wall Projects was extremely limited. No environmental impact

26

statement was prepared, and as a result there is minimal data available on anticipated impacts.

27

Exhaustive surveys have not been carried out inside the Projects’ footprints and data on the

28

species that will be impacted is sparse. But previous border-barrier construction projects in
2
Decl. of Sula Vanderplank ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)

1

California provide some guidance on likely construction activities and impacts that will result

2

from San Diego Projects 4 and 11. Past projects have necessitated new access roads, extensive

3

vegetation clearing, grading and soil compaction, as well as significant landscape alteration (e.g.,

4

the past border-barrier construction in Smuggler’s Gulch). Installation of San Diego Projects 4

5

and 11 will require similar clearance of vegetation, grading, and creation of roads, and will result

6

in environmental impacts including soil compaction and erosion, and significant disturbance to

7

surrounding ecosystems including by facilitating the spread of invasive species (exotic plants and

8

seeds being transported to the Project sites by construction equipment, for example).

9
10

Environmental Context
9.

San Diego Projects 4 and 11 are entirely within the California Floristic Province, one

11

of the world’s Biodiversity Hotspots (an area with a high number of restricted species and

12

significant impacts to 80% of habitat). These hotspots are defined by extreme levels of species

13

endemism and high levels of human impact and landscape alteration. The Project areas are no

14

exception; they have very high levels of local endemism and have been heavily impacted.

15

10.

The U.S./Mexico border is not a natural border, yet interestingly, it is close to a

16

natural shift in the local plant communities in San Diego County. Our borderlands are often the

17

northernmost outposts for many plants that are otherwise restricted to the CFP region of Baja

18

California. These California occurrences often constitute some of the very rarest plants in the

19

United States, occurring nowhere else in our nation. San Diego County is perhaps the most bio-

20

diverse county in the U.S. (no other county is known to have greater plant diversity). In 2014, San

21

Diego County had 2,672 plants documented from within its boundaries.

22

11.

San Diego County is also home to 266 rare plants that are included in the California

23

Native Plant Society (CNPS) Rare Plant Rankings. This program develops current and accurate

24

information on the distribution and conservation status of California’s rare and endangered plants,

25

and since 1968 has been the standard for information on the rarity and endangerment of the

26

State’s flora. The program operates under a Memorandum of Understanding (MOU) with

27

the California Department of Fish and Wildlife (CDFW) and facilitates broad cooperation in rare

28

plant assessment and protection. The CNPS Rare Plant Botanist is housed at the Sacramento
3
Decl. of Sula Vanderplank ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)

1

office of the CDFW’s Biogeographic Data Branch, and shares all data with the California Natural

2

Diversity Data Base (CNDDB). See: http://www.cnps.org/cnps/rareplants/ranking.php.

3

12.

Notably, San Diego Project 4 includes part of the Otay Mountain Federal Wilderness

4

Area. (See Exhibit A to this declaration, which is a true and correct copy of a map of the Otay

5

Wilderness Area from the U.S. Dept of the Interior, Bureau of Land Management). Wilderness

6

Areas “are final holdout refuges for a long list of rare, threatened, and endangered species, forced

7

to the edges by modern development.” They are “places where law mandates above all else

8

that wildness be retained for our current generation, and those who will follow.” See the US

9

Forest Service website for Managing the Land at https://www.fs.fed.us/managing-

10

land/wilderness. Federal Wilderness Areas have been protected under federal law since the

11

Wilderness Act of 1964 was enacted “[i]n order to assure that an increasing population,

12

accompanied by expanding settlement and growing mechanization, does not occupy and modify

13

all areas within the United States and its possessions, leaving no lands designated for

14

preservation and protection in their natural condition.” In enacting the Wilderness Act, Congress

15

declared its policy was “to secure for the American people of present and future generations the

16

benefits of an enduring resource of wilderness.”

17

13.

The Otay Mountain Wilderness Area, near San Diego, California, was created by

18

Congress in 1999 and encompasses some 18,500 acres. It reaches elevations of 3,500 feet, and is

19

home to rugged mountains with gradients exceeding 40%. The 2006 Secure Fence Act stated, “If

20

the topography of a specific area has an elevation grade that exceeds 10 percent, the Secretary

21

may use other means to secure such area, including the use of surveillance and barrier

22

tools.” Otay Mountain “represents a unique ecosystem, home to twenty sensitive plant and

23

animal species, including the endangered quino checkerspot butterfly, the only known stand of

24

Tecate cypress, as well as the only known population of the Mexican flannel bush”

25

(https://www.blm.gov/visit/otay-mountain-wilderness). Notably, the part of the Otay Mountain

26

Wilderness where San Diego Project 4 is being constructed is particularly steep and rugged, as

27

shown in a photograph I took which shows the existing fencing heading toward the steep

28
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Decl. of Sula Vanderplank ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)

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unfenced area that is the project-footprint for San Diego 4. This photograph is attached as Exhibit

2

B to this declaration.

3

Site-Specific Plant Diversity

4

14.

The San Diego Project 4 and 11 sites include extensive native-plant habitat. A

5

checklist of plants previously collected in the San Diego Project 11 area was generated using data

6

from the San Diego County Plant Atlas and includes 211 different plant species. The same query

7

for San Diego Project 4 yields 251 plant species. There are a total of 372 unique plant taxa

8

expected to be impacted if San Diego Projects 4 and 11 are constructed.

9

15.

This is certainly a VERY limited dataset, far from the true total because a thorough

10

plant inventory has never been conducted in this region. These lists also do not include

11

observations or records from the California Natural Diversity Database (maintained by the

12

California Department of Fish and Wildlife). Sadly, I was not able to conduct a thorough

13

inventory due to the lack of site access, and a multi-season inventory would be necessary to

14

adequately assess diversity; a single site visit could never capture the diversity of the Project

15

areas.

16

16.

During a single weekend in March 2019, citizen scientists documented 1,073 distinct

17

plant and animal taxa along the California/Mexico borderlands during the Border Bioblitz, 805 of

18

which were plants. These are certainly VERY restricted datasets, which include far less than the

19

true plant diversity of the border region, since a plant inventory has never been conducted in the

20

remote regions of the border where fencing is proposed. However, these numbers give some

21

indication of the immense biodiversity of the immediate border region. The California Natural

22

Diversity Database clearly shows the proximity of many rare plants and animals to San Diego

23

Project (See Exhibit B, a true and original copy of the Bureau of Land Management’s Otay

24

Mountain Wilderness Boundary).

25

Methods Used for this Assessment

26

17.

To assess the Plants of Conservation Concern that will be potentially and directly

27

impacted by San Diego Projects 4 and 11, I visited both project sites (notably access to the San

28

Diego 4 Project site was challenging, and main access roads were closed to the public). To
5
Decl. of Sula Vanderplank ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)

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compile these data, I have also searched CNDDB records from the CDFW. Exhibit C to this

2

Declaration is a true and correct copy of a screenshot from the CNDDB BIOS viewer, that I

3

accessed on September 30, 2019, which shows the number of rare species records for the Project

4

sites. I also searched records in the San Diego County Plant Atlas (sdplantatlas.org), and

5

reviewed museum specimen collection data (herbarium specimens) – recent and historical as

6

appropriate - including data from the Consortium of California Herbaria

7

(http://ucjeps.berkeley.edu/consortium/). I have also referenced expert verified observations from

8

iNaturalist, used a wealth of scientific literature, and sought expert knowledge, including

9

consultation with Dr. Jon Rebman, a foremost expert in the region and author of the Checklist of

10

the Vascular Plants of San Diego County 5th Edition (Rebman & Simpson 2014, 156pp), and the

11

Annotated Checklist of the Vascular Plants of Baja California (Rebman, Gibson & Rich 2016,

12

352 p).

13
14

18.

In the absence of an exhaustive survey of the Project areas, the rare and endangered

plants found within the impact zone at the border have been distinguished as follows:

15
16

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

17

California and Elsewhere: Plants with a California Rare Plant Rank of 1B are rare

18

throughout their range with the majority of them endemic to California. Most of the

19

plants that are ranked 1B have declined significantly over the last century.

20
21

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

22

California, But More Common Elsewhere: Except for being common beyond the

23

boundaries of California, plants with a California Rare Plant Rank of 2B would have

24

been ranked 1B. From the federal perspective, plants common in other states or

25

countries are not eligible for consideration under the Federal Endangered Species

26

Act.

27
28
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Decl. of Sula Vanderplank ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)

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California Rare Plant Rank 3: Plants Where More Information is Needed: Plants with

2

a California Rare Plant Rank of 3 are united by one common theme - we lack the

3

necessary information to assign them to one of the other ranks or to reject them.

4

Nearly all of the plants constituting California Rare Plant Rank 3 are taxonomically

5

problematic.

6

All of the plants constituting California Rare Plant Rank 1A, 1B, 2A, 2B, and 3 are eligible

7

for listing under the California Endangered Species Act (CESA). Impacts to these species or their

8

habitat must be analyzed during preparation of environmental documents under the California

9

Environmental Quality Act (CEQA), as they meet the definition of Rare or Endangered under

10

CEQA Guidelines §15125 (c) and/or §15380.

11

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

12

with a California Rare Plant Rank of 4 are of limited distribution or infrequent

13

throughout a broader area in California, and their status should be monitored

14

regularly.

15

Few of the plants constituting California Rare Plant Rank 4 are eligible for state listing.

16

Nevertheless, many of them are significant locally, and it is strongly recommended that California

17

Rare Plant Rank 4 plants be evaluated for impact significance during preparation of

18

environmental documents relating to CEQA, based on CEQA Guidelines §15125 (c) and/or

19

§15380. This is particularly significant for populations at the periphery of a species' range, and

20

areas where the taxon has sustained heavy losses, which are often applicable in the U.S./Mexico

21

border region.

22

19.

23
24
25
26
27
28

Each rare plant also receives a threat rank, follow its listing designation:
0.1-Seriously threatened in California (over 80% of occurrences threatened / high
degree and immediacy of threat)
0.2-Moderately threatened in California (20-80% occurrences threatened / moderate
degree and immediacy of threat)
0.3-Not very threatened in California (less than 20% of occurrences threatened / low
degree and immediacy of threat or no current threats known)
7
Decl. of Sula Vanderplank ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)

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2

20.

I also evaluated the types of impacts that are likely to result from the Projects’

construction:

3

Direct impacts are listed for those plants which have been documented within 100

4

meters of the fenceline and will be directly impacted during the proposed

5

construction. (Direct Impacts under the National Environmental Policy Act

6

(NEPA).)

7

Expected impacts are those where plants have been documented within 500 meters

8

of the impact zone and are expected within the Project footprint, although

9

conclusive data are not currently available. (Direct Impacts under NEPA.)

10

Indirect impacts are listed for sensitive plants that live adjacent to the impact area, in

11

fragile habitats that have a high likelihood to suffer from dust, soil erosion,

12

particulate deposition, and/or landscape hydraulic alterations which may result from

13

the installations. They are all likely to suffer edge effects from the disturbance and

14

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

15

NEPA.)

16

The Projects Will Cause Irreparable Harm to Rare and Endangered Plants

17

21.

The Table below outlines the sensitive plants along the Projects’ footprints and

18

highlights the rare and endangered plants found within each one, including their CNPS rankings

19

(lists and threat ranks as detailed above), and federal and state listed status (CE = California

20

Endangered, FT = Federally Threatened and CR = California Rare). The Table also details the

21

impacts the sensitive habitats will suffer from the San Diego 4 and 11 Projects, following the

22

criteria listed above. All plants listed are also subject to cumulative impacts (as per NEPA) as a

23

result of the repeat disturbances to this region. Notably, the Table includes a species new to

24

science that is not yet formerly named (pers. comm. Dr. Jon Rebman, Curator of Botany, San

25

Diego Natural History Museum, and Dr. Michael Simpson, Professor Emeritus, San Diego State

26

University, September 2019) in the genus Eriodictyon, as well as charismatic rare plants like the

27

Tecate Cypress.

28
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Decl. of Sula Vanderplank ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)

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22.

Of the 40 plants in the table, all are considered Species of Conservation Concern in

2

California. One is federally-listed, two are state-listed, and 24 are considered rare, threatened or

3

endangered in California. In total 33 Plants of Conservation Concern are expected to suffer direct

4

impacts under NEPA, and 7 are expected to suffer indirect impacts.

5
Status

Family

Genus

7

Expected
Direct
Direct

Asteraceae
Asteraceae
Asteraceae

Baccharis
Bahiopsis
Deinandra

vanessae
laciniata
floribunda

8

Direct

Asteraceae

Isocoma

menziesii

9

Direct

Asteraceae

Iva

hayesiana

Indirect

Asteraceae

Packera

ganderi

Direct

Asteraceae

Xanthisma

junceum

Direct

Boraginaceae

Harpagonella

palmeri

Direct

Brassicaceae

Lepidium

Infra
Name

Species

virginicum

6

10
11
12

Indirect

Brassicaceae

Streptanthus

Cactaceae

Ferocactus

viridescens

Direct

Convolvulaceae

Convolvulus

robinsonii

bernardinus

Expected

decumbens

simulans

State/
Federal
CE, FT
None
None

Rush Chaparral-Star
Palmer's GrapplingHook
Robinson's
Peppergrass
Southern Jewelflower

CNPS
1B.1
4.2
1B.2

None

1B.2

None

2B.2

CR

1B.2

None

4.3

None

4.2

None

4.3

None

1B.3

None

2B.1

None

4.2

14

Direct

Convolvulaceae

Dichondra

occidentalis

Coast Barrel Cactus
Small-flowered
Morning-glory
Western Dichondra

None

4.2

Expected

Crassulaceae

Dudleya

variegata

Variegated Dudleya

None

1B.2

15

Direct

Cupressaceae

Hesperocyparis

forbesii

Tecate Cypress

None

1B.1

Direct

Ericaceae

Direct

Ericaceae

diversifolia

Direct

Fabaceae

Arctostaphylos
Comarostaphyli
s
Hosackia

Expected

Fabaceae

Lathyrus

splendens

Direct

Fabaceae

Pickeringia

montana

13

16
17
18

viridescens

Common
Name
Encinitas Baccharis
San Diego Sunflower
Tecate tarplant
Decumbent
Goldenbush
San Diego MarshElder
San Diego Butterweed

otayensis

Otay Manzanita
diversifoli
a
otayensis

crassifolia

None

1B.2

Summer-Holly

None

1B.2

Otay Mountain Lotus

None

1B.1

Campo Pea
tomentosa

None

4.3

Hairy Chaparral-Pea

None

4.3

Direct

Fagaceae

Quercus

cedrosensis

Cedros Island oak

None

2B.2

Indirect

Lamiaceae

Lepechinia

ganderi

Gander's pitcher sage

None

1B.3

Expected

Lamiaceae

Monardella

hypoleuca

Felt-Leaf Monardella

None

1B.2

20

Direct

Lamiaceae

Monardella

stoneana

Jennifer's monardella

None

1B.2

Direct

Lamiaceae

Salvia

munzii

Munz's Sage

None

2B.2

21

Direct

Liliaceae

Calochortus

dunnii

Dunn's Mariposa Lily

CR

1B.1

Expected

Namaceae

Eriodictyon

sp. nov.

None

pending

None

1B.2

None

4.2

19

lanata

Onagraceae

Clarkia

delicata

Indirect

Orchidaceae

Piperia

cooperi

Delicate/Campo
Clarkia
Cooper's Rein Orchid

Indirect

Picrodendraceae

Tetracoccus

dioicus

Parry's Tetracoccus

None

1B.2

24

Direct

Poaceae

Stipa

diegoensis

San Diego Needlegrass

None

4.2

Direct

Polygonaceae

Chorizanthe

Ramona Spineflower

None

4.2

25

Direct

Pteridaceae

Pentagramma

leptotheca
glanduloviscid
a

None

Pending

22
23

26

Expected

Direct

Pteridaceae

Pentagramma

rebmanii

Indirect

Rhamnaceae

Adolphia

californica

Direct

Rhamnaceae

Ceanothus

otayensis

Direct

27

Rebman's Silverback
Fern
Spineshrub

Rosaceae

Chamaebatia

australis

Otay-Lilac
Southern Mountain
Misery

28

None

Pending

None

2B.1

None

1B.2

None

4.2

9
Decl. of Sula Vanderplank ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)

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2
3

Direct

Selaginellaceae

Selaginella

cinerascens

Mesa Spike-Moss

None

4.1

Expected

Themidaceae

Bloomeria

clevelandii

San Diego Goldenstar

None

1B.1

Indirect

Themidaceae

Brodiaea

orcuttii

Orcutt's Brodiaea

None

1B.1

23.

During a site visit I conducted on October 2, 2019, the following plants from the

4

Table were seen to be abundant in the direct footprint for San Diego Project 4: Tecate Cypress,

5

Otay Lilac, Otay Manzanita, Southern Mountain Misery, Summer Holly, Cedros Island Oak and

6

the Mesa Spike-Moss.

7

Conclusion

8
9

24.

In conclusion, the Projects’ footprints include at least 40 Plants of Conservation

Concern in the state of California, including at least three plants that are listed at the federal and

10

state levels. Within these 40 Plants of Conservation Concern, there are at least 19 plants on list 1B

11

(plants that are globally rare, threatened or endangered), and 5 plants on list 2B (plants that are

12

rare, threatened or endangered in California), for a total of 24 plants that are eligible to be listed

13

as rare, threatened, or endangered at the state and federal levels. In total, 33 Plants of

14

Conservation Concern are expected to suffer direct impacts under NEPA, and 7 are expected to

15

suffer indirect impacts under NEPA. San Diego Projects 4 and 11 will have irreparable and

16

irreversible impacts to numerous rare plants and fragile habitats in this extremely diverse area.

17
18
19

I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct.
Executed on October 10, 2019, at San Diego, California.

20
21
22
23

____

____________
Sula Vanderplank

24
25
26
27
28
10

Decl. of Sula Vanderplank ISO Partial Motion for Summary Judgment (4:19-cv-00872-HSG)

EXHIBIT A

True and original copy of the extent of the BLM Otay Mountain Wilderness area.

EXHIBIT B

EXHIBIT C

True and original copy of CDFW data for the Otay fence replacement section. Note the high numbers of endangered species in the project area.