July 27, 2020

Waiving Historic Resources Laws at the Southern Border

by Erin Flannery Keith

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) § 102 (codified as amended at 8 U.S.C. § 1103 note) and its amendments authorize the Department of Homeland Security (DHS) to waive all legal requirements to expedite border barrier construction. This article highlights the cultural resources and historic preservation laws whose waiver the IIRIRA authorizes, identifies how waivers already have harmed cultural and historic resources on the U.S.-Mexico border, and explains why no challenges to DHS waivers have succeeded.

IIRIRA initially waived only the Endangered Species Act (ESA) and National Environmental Policy Act (NEPA). IIRIRA § 102(c) (1996). The REAL ID Act of 2005 expanded DHS’ waiver authority such that “the Secretary of Homeland Security shall have the authority to waive all legal requirements” that the Secretary, “determines necessary to ensure expeditious construction of the barriers and roads under this section.” REAL ID Act of 2005 § 102(c)(1), reprinted in 8 U.S.C. § 1103 note (2006) (emphasis added). The REAL ID Act gave federal district courts exclusive review of DHS’ waiver decisions, limited causes of action to only those alleging constitutional violations, and provided that “an … order of the district court may be reviewed only upon petition for a writ of certiorari to the Supreme Court.” Id., § 102(c)(2)(C).

Between September 2005 and April 2008, DHS issued five § 102(c)(1) waivers. President Trump issued Executive Order 13767 on January 25, 2017, directing DHS to “take all appropriate steps to immediately plan, design, and construct a physical wall along the southern border.” 82 Fed. Reg. 8793. DHS has since issued 16 waivers.

Almost all of the 21 § 102(c)(1) waivers have waived cultural resources and historic preservation laws, including the Antiquities Act, the National Historic Preservation Act (NHPA), the statutes controlling the National Historic Landmarks Program and the National Register of Historic Places, the Archaeological and Historic Preservation Act (AHPA), the Archaeological Resources Protection Act (ARPA), and the Native American Graves Protection and Repatriation Act (NAGPRA). Suspending these laws’ applicability for border-related activities eliminates well-established consultation, mitigation, public participation, and permitting procedures.

President Franklin Roosevelt established the Organ Pipe Cactus National Monument (OPCNM) in 1937, using presidential authority under the Antiquities Act to declare national monuments and reserve national monument lands from unauthorized excavation. Managed by the National Park Service (NPS), OPCNM encompasses 30 miles of the U.S.-Mexico border in Arizona. The federal agency managing a national monument establishes a foundational document/management plan identifying the monument’s fundamental resources and values, and authorized uses. One of OPCNM’s fundamental resources and values is that it “has a rich 15,000-year human history, serving as an important cultural center to the local American Indians [Hohokam and Tohono O’odham].” See “Foundation Document: Organ Pipe Cactus National Monument” (2016) at p. 3. Seven areas within the OPCNM are on the National Register of Historic Places. The management plan contemplates that NPS will issue annual forward operating base and infrastructure permits to DHS. Eighteen out of 21 waivers have waived the Antiquities Act. DHS issued a waiver including the OPCNM on May 15, 2019 (84 Fed. Reg. 21,798). Waiving the Antiquities Act in the OPCNM allows DHS to conduct border construction activities without regard to the national monument’s management plan or permitting processes. In February 2020, to prepare to build new border fences, DHS began blasting in the OPCNM, removing organ pipe and saguaro cactuses and disturbing Tohono O’odham burial sites. See Michel Marizco, “Archaeologists Say Border Wall Cuts Through Native American Burial Sites in Arizona,” NPR, Feb. 19, 2020.

The NHPA and its implementing regulations require federal agencies to “take into account the effects of their undertakings on historic properties and afford the Council a reasonable opportunity to comment on such undertakings.” 36 C.F.R. § 800.1. This involves identifying the historic properties that the federal undertaking could affect, consulting with relevant state or tribal historic preservation officers, assessing adverse effects, and identifying alternatives to resolve or mitigate adverse effects. The process also provides for public comment and must occur “prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license.” 54 U.S.C. § 306108; 36 C.F.R. § 800.1(c). Twenty section 102(c)(1) waivers have waived the NHPA.

Under the National Historic Landmarks and the National Register of Historic Places programs, the federal agency responsible for any federal undertaking “directly and adversely affect[ing] any National Historic Landmark” must assess and minimize potential impacts prior to approving that undertaking and must allow the federal Advisory Council on Historic Preservation “a reasonable opportunity to comment.” 54 U.S.C. § 306107. Several National Historic Landmarks, including the Trevino Uribe Rancho in Texas and the Yuma Crossing National Historic Landmark, lie on the southern border and are susceptible to impacts from border projects. Eighteen waivers have waived these statutes.

AHPA, 54 U.S.C. § 312502, requires federal agencies whose activities “in connection with any federal construction project or federally licensed project . . . may cause irreparable loss or destruction of significant scientific, prehistorical, historical, or archaeological data” to notify the Secretary of the Interior and document, prevent, or mitigate such loss. In an area rich in Native American historic artifacts, waiving AHPA’s requirements could result in unquantified archaeological losses. AHPA has been waived 18 times.

ARPA, 16 U.S.C.A. § 470cc, requires permits to “excavate or remove any archaeological resource located on public lands or Indian lands” only under certain conditions, such as if “the activity is undertaken for the purpose of furthering archaeological knowledge in the public interest.” Id. at § 470cc(b)(2)–(4). ARPA requires notification of any Indian tribe which may consider the site as having religious or cultural importance. Id. at § 470cc(c). DHS would not have to apply for such permits on public or Indian lands on the southern border—permit applications otherwise likely to be denied. Eighteen waivers have waived ARPA.

NAGPRA, 25 U.S.C. § 3001 et seq., protects Native American sacred and funerary objects and human remains. If federal agencies inadvertently encounter Native American cultural items on federal lands during construction, they must “cease the activity in the area of the discovery, make a reasonable effort to protect the items discovered before resuming such activity, and provide notice under this subsection” to the “appropriate Indian tribe.” Id. at § 3002(d)(1). Tribes then must certify that they have been notified and the federal activity may resume if the activity does not involve additional removal of cultural objects. Id. If the federal activity will involve additional cultural object removal, the federal agency must then follow NAGPRA’s intentional excavation procedures at 25 U.S.C. § 3002(c), which require ARPA permits and tribal consultation. NAGPRA waivers have the potential to be especially damaging and contrary to NAGPRA’s purpose. “The Committee intends this section to provide for a process whereby Indian tribes and Native Hawaiian organizations have an opportunity to intervene in development activity on Federal or tribal lands in order to safeguard Native American human remains, funerary objects, sacred object or objects of cultural patrimony.” S. Rep. No. 101-473, at 7 (1990). Seventeen waivers have waived NAGPRA.

Plaintiffs thus far have not successfully challenged DHS’ section 102(c) waivers, and few routes are available to challenge the waivers unless the Supreme Court weighs in or unless Congress amends IIRIRA to allow broader judicial review. In an early section 102(c) waiver case, Save Our Heritage Org. v. Gonzales, 533 F.Supp.2d 58, 60 (D.D.C. 2008), the court held that the DHS properly used its waiver authority for projects in California and Arizona and confirmed that the waiver authority limits causes of action. Plaintiffs alleged that waivers unlawfully allowed DHS to avoid “complying with all applicable provisions of the NHPA in designing, constructing, operating, and maintaining” the border fences, including considering the fences’ effects “on any historic site that is included or eligible for inclusion in the National Register of Historic Places.” Complaint, para. 17, 2007 WL 1568844 (D.D.C.). The court granted DHS’ motion to dismiss the complaint because “the only claims permitted under the [IIRIRA] waiver provision are those ‘alleging a violation of the Constitution.’” 533 F. Supp. 2d 58, 60 (D.D.C. 2008).

In 2017, environmental groups and the State of California challenged two DHS waivers for border fence replacement and wall prototype construction near San Diego and Calexico, California, alleging that the waivers violated the waived statutes and that the waivers themselves were reviewable ultra vires acts. Plaintiffs claimed that the DHS waivers violated the U.S. Constitution’s non-delegation, take care, and presentment clauses. The district court found that DHS had not violated any clear and mandatory statutory obligations in section 102 and confirmed that it may only hear constitutional claims. In re Border Infrastructure Envtl. Litig., 284 F. Supp. 3d 1092, 1110–1111 (S.D. Cal., 2018), cert. denied sub nom. Animal Legal Def. Fund v. Dep’t of Homeland Sec., 139 S. Ct. 594, (2018), and aff’d, 915 F.3d 1213 (9th Cir. 2019). Plaintiffs’ constitutional claims also failed. The court dismissed plaintiffs’ allegations that section 102(c) violates the non-delegation clause (U.S. Const. Art. 1 § 1) because it clearly delineated the delegation’s scope by allowing DHS to waive federal, state, and local law application and enforcement during border barrier construction, as necessary. Id. at 1135. The court dismissed plaintiffs’ take care clause (U.S. Const. Art. 2 § 2) claims that the waiver determinations violated the Executive’s duty to faithfully execute the waived laws’ statutory mandates, finding that the “challenged steps taken by the Secretary are ones that are plausibly called for by an act of Congress.” Id. at 1137. Finally, the court dismissed the presentment clause (U.S. Const. Art 1 § 7) claims, finding that “each of the waived statutes retains the same legal force and effect as it had when it was passed by both houses of Congress and presented to the President.” Id. at 1141, quoting Defs. of Wildlife v. Chertoff, 527 F. Supp. 2d 119, 124 (D.D.C. 2007).

In Ctr. for Biological Diversity v. McAleenan, 404 F. Supp. 3d 218 (D.D.C. 2019), the court upheld a 2018 DHS waiver that covers a 20-mile border segment in New Mexico, finding “that Congress has expressly precluded judicial review of non-constitutional claims that arise from DHS’s exercise of IIRIRA’s § 102(c) waiver authority, and Plaintiffs have failed to allege facts that are sufficient to sustain their constitutional claims as a matter of law.” Id. at 235. Because the Supreme Court hears direct appeals under IIRIRA § 102(c), CBD’s petition for writ of certiorari is pending and asks the Court to consider “[w]hether IIRIRA § 102(c)—which grants the Secretary of Homeland Security unfettered discretion to waive all federal, and related state, local, and tribal laws, regulations, and legal requirements, and sets forth no standards or criteria to apply in determining whether such waiver is necessary for expeditious border wall construction—violates the separation of powers, the non-delegation doctrine, and the Presentment Clause of the Constitution of the United States.” CBD, et al. v. Chad Wolf, Acting Sec. of Homeland Security, No. 19-975, Petition for Writ of Cert. at i–ii.

The Supreme Court has denied several § 102(c) certiorari petitions and seems unlikely to grant this latest petition. However, with the accelerated pace of DHS waivers between 2017 and 2020 and their immediate and dramatic impacts on historic and cultural resources, it is worth observing this emerging area of law.

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Erin Flannery Keith

Ms. Keith is an attorney in the U.S. Environmental Protection Agency’s Region 1 Office of Regional Counsel in Boston, and a member of the board of editors of Natural Resources & Environment. She may be reached at eflannerykeith@gmail.com. Ms. Keith writes in her individual capacity and her views do not reflect the positions of the U.S. EPA or the federal government.