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An interesting law suit pitting environmentalists against the Department of Homeland Security

CO. Hoosier

Hall of Famer
Aug 29, 2001
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A group of rather serious environmentalists, including former Colorado governor Dick Lamm, a retired forrest service ranger, landowners, and other individuals and entities have sued the DHS, and its director over the environmental damage done because of lax and permissive immigration policies. The claims include the immediate damage done to lands because of the volumes of illegal immigrant traffic through private and public lands (see Mr. Davis below); and the general damages caused to the United States as a whole because of the massive population increases brought about by illegal and permissive immigration policies. (see Mr. Colton below. Colton is from the same city I lived in for 45 years but I don't know him) The plaintiffs also allege specific harm to South Western ecosystem, plants and animals, caused by illegal immigration (see Mr. Pope below). The plaintiffs further allege causation in that the illegal immigration is a direct result of governmental leniency (see Vaugn below). They also allege that National Environmental Policy Act requires an environmental review of immigration policy just as any federal policy would be reviewed.

A copy of the complaint is here.

Links to all the exhibits and complaint are here.

I think this is a real interesting case. While I don't think the claims stemming from a general population increas caused by immigration will get anywhere (for many reasons including judicial avoidance of political questions doctrine) I think direct the claims of environmental damage to eco systems and property has legs.

This one is worth watching. An interesting side show is how the Trump-led DHS will respond to this case.

Sadly, I think this litigation is at least a decade or two too late.

Below are selected passages from the complaint.

Mr. Davis and his family have “picked up literally tons of trash” that illegal border-crossers have dumped on their land. Id. at ¶ 11. They have found human feces on their property “in abundance.” Id. The garbage is a dangerous health hazard. Id. It has killed some of their cattle, and it has made ranching “far more difficult, dangerous and expensive.” Id. at ¶¶ 11, 12. The years of illegal border-crossings have shattered Mr. Davis’s peace and tranquility. Id. at ¶ 14. Life on the ranch has become much more stressful; Mr. Davis feels like he is living in a “war zone.” Id. at ¶ 15.

We feel that we are in constant reactionary mode, as people keep unlawfully crossing, and we know some of them may be a threat to our personal safety, giving us great anxiety for our children. The dogs bark in the night at the border crossers, making it difficult for us to sleep.

The constant stress means that Mr. Davis has “headaches and health problems [] at home, that go away when I travel.” Id. at ¶ 15. The DHS actions at issue in this case “have real, concrete, harmful ongoing impacts on me, my family, our land, and the general border environment.” Id. at ¶ 20. Like so many others, Mr. Davis is “angry contemplating all of the damage done to our environment that might never have occurred if DHS had followed its obligations under NEPA.” Id. at ¶ 20.
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40. Glen Colton has lived in Fort Collins, Colorado for 37 years. G. Colton Aff. at ¶ 1. Mr. Colton’s affidavit is attached as Ex. 15. When he moved to Fort Collins, the town had 65,000 residents and was surrounded by “wide open spaces,” and agricultural land. Id. at ¶ 3. At that time Fort Collins was “an idyllic place to live, work, and raise a family.” Id. at ¶ 3. Over the decades, however, the town’s population has soared to 160,000 today. Id. at ¶ 4. Its population is expected to grow by another 80,000 over the next 10 to 15 years with no end to the growth in sight. See id. Many of the agricultural areas and “wide open spaces” that used to surround the city are gone. See id. The population of the surrounding region is “projected to nearly double” from 500,000 to one million people within 20 years, with no end in sight. See id. Mr. Colton is negatively impacted by the endless surge of population growth which causes sprawl, degradation of the Poudre River, loss of nature and wildlife, increasing light and air pollution and increasing traffic and congestion. See id. at ¶¶ 5-7. Like Mr. Oberlink, Mr. Colton’s enjoyment of protected public land in the region has diminished because more and more users are “putting increasing pressure on trails, fragile habitat and wildlife.” Id. at ¶ 8. He unhappily notes that Estes Park, the gateway to Rocky Mountain National Park, has changed over the years he has visited and now “is a crowded, congested mess . . . .” Id. at ¶ 8. The destruction of the natural world from “rampant and destructive effects of population growth” is evident to Mr. Colton as he travels around the western United States. Id. at ¶ 10. He states that “[w]ater issues are becoming increasingly dire, infrastructure is overloaded, wildlife habitat is being destroyed, development is rapidly encroaching on fire prone areas, congestion and crowding is widespread, and consumption and resulting energy usage . . . are increasing.” Id. He does not believe that this endless population growth is ecologically sustainable and indeed, feels “incredibly betrayed and cheated by the United States” because he chose to have only one child to help stabilize the nation’s population yet the federal government has embraced a national population policy that imposes unending massive population growth through immigration. Id. at ¶ 15. DHS and the State Department are “de facto U.S. growth spigot” have completely ignored NEPA. Id. at ¶ 17. If these agencies had complied with NEPA, “the US landscape . . . would most likely look very different today.” Id.

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44. Ralph Pope is a retired Natural Resource Management/Ecologist for the U.S. Forest Service. R. Pope Aff. at 7. His affidavit is attached hereto as Ex. 19. Mr. Pope has lived in Southeastern Arizona and Southwestern New Mexico along the U.S/Mexico border for most of his life. See id. at ¶¶ 1-2. His affidavit details his personal and professional pleasure over the decades, experiencing and
enjoying the entire “scope and range of southwest ecosystems, from desert to high elevation mixed conifers.” See id. at ¶ 10. He notes his particular affection for the region’s famed “sky islands”--hot spots of great biodiversity found nowhere else on the globe. Id. Mr. Pope devoted his career to monitoring and trying to protect the Piloncillo, Chiricahua and Dragoon Mountains, federal lands which make up the Douglas Ranger District. Id. at ¶ 4. His job with the Forest Service entailed monitoring ecosystem health and livestock grazing operations on federal lands. Id. Unfortunately, over the decades, Mr. Pope has personally witnessed the ecological degradation of “unique native ecosystems located on hundreds of thousands of acres of once pristine and unspoiled lands . . . .” Id. at ¶ 5. This degradation was caused by illegal border-crossings, whose destructive impacts include trampled native vegetation, garbage, polluted water, destroyed wilderness and fires that burn out of control. Id. at ¶ 11. Mr. Pope’s affidavit describes the destruction of Burro Springs and the Chiricahua Mountain Range that occurred as a result of fires set by illegal border-crossers. See id. at ¶¶ 11, 14. One significant negative impact of such fires is that much of the native vegetation gets burned away and is replaced by invasives. See id. at ¶ 15. He states that “[a]s an ecologist, this upsets me tremendously.” Id.
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As stated by Plaintiffs’ expert Jessica Vaughan in “Analysis of Discretionary Agency Actions That Resulted in Cumulatively Significant Environmental Impacts on the Southwest Border” (see Ex. B of Ex. 2 at 749), “[h]istorical experience demonstrates that a real or even perceived change in enforcement policies, both at the border and in the interior, can significantly affect
the number of people attempting to cross the border illegally.” Ex. 2 at 750. Indeed, a Border Patrol intelligence report from 2014 based on interviews with migrants reveals that 95% stated that their “main reason” for coming was because they had heard they would receive a “permiso,” or, permission to stay. Id. at 751-752. The credible fear directive (Action 2, in ¶ 53 supra) in particular, quite clearly had a role in developing this belief, though other actions also played a role. For further explanation and analysis of DHS enforcement policy in general and how the agency’s specific actions, supra, have encouraged and exacerbated the phenomenon of mass illegal crossing along the Southwest border, see Ex. B of Ex. 2.[/I

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The National Environmental Policy Act (NEPA), which became law in 1970, was supposed to have stopped this kind of ill-considered population growth from happening. In the 1960s and 1970s, the environmental movement understood how important population stabilization was to everything it stood for. This emphasis in NEPA itself of the importance of population growth reflects this priority. NEPA, the bedrock of our environmental law, was designed to ensure for environmentally informed decision making and public participation . .... Federal agencies, like the Department of Homeland Security (DHS), are not supposed to carry out actions that affect the environment without first considering the consequences. What can have a greater environmental impact on our states and the nation than immigration? In the days when NEPA was passed, population growth was not substantially a matter of immigration, but now immigration is our population’s primary driver. Moreover, it is certainly the primary driver of population growth that is most within the federal government’s control. Our immigration levels are ultimately a policy choice. DHS is the federal agency that actually implements our nation’s immigration policies, and so DHS is responsible for carrying out the federal policy that has the greatest impact on the environment of all. And yet, DHS has done zero environmental review of its immigration related actions. Zero
 
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That is interesting. I don't think I buy the argument that DHS violated procedures required by NEPA, and trying to convince a court that the agency's determinations were wrong is always going to be an uphill battle. But it will be fun to watch this one play out.
 
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