ELR Citation: 51 ELR 20162
No(s). CV-17-00163-TUC-CKJ (D. Ariz. Aug 20, 2021) (Jorgenson, J.)

A district court granted in part and denied in part summary judgment for an environmental group and U.S. congressman in a lawsuit concerning enforcement activity along the U.S.-Mexico border. The plaintiffs argued the Department of Homeland Security (DHS) violated NEPA by failing to issue a supplemental EIS in light of substantial expansion of enforcement activity and the designation of new or revised critical habitats for threatened and endangered species within the enforcement area. The court found little justification for DHS' decision to forgo, and ultimately withdraw from, supplemental programmatic EISs despite the presence of significant triggering events since the last supplement in 2001, and concluded the decision was arbitrary and capricious. The plaintiffs also argued the Department violated the ESA by failing to consult with FWS concerning the activity's impacts on threatened and endangered species. The court found the plaintiffs failed to show that the ESA mandated programmatic FWS consultation or that a hypothetical NEPA supplementation would trigger such a requirement. It therefore granted in part and denied in part the plaintiffs' motion for summary judgment.