UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MANZANITA BAND OF THE KUMEYAAY NATION, et al., Plaintiffs, Case No. 1:20-cv-02712 (TNM) v. CHAD WOLF, et al., Defendants. MEMORANDUM OPINION This case is about whether the Government can build the border wall on federal land notwithstanding concerns that Native American gravesites may be disturbed in the process. Plaintiffs are affiliated with the Kumeyaay Nation. They seek an expedited preliminary injunction to halt construction of two barrier projects along the U.S.-Mexico border in California. The Government argues that Kumeyaay religious or cultural materials have yet to be identified within the construction sites and that there are protocols in place to avoid or mitigate any potential harm in the future. A preliminary injunction is an extraordinary remedy that demands a clear showing of imminent harm that is both certain and great. Plaintiffs have not met this high standard. So the Court will deny their motion for expedited injunctive relief. I. Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) grants broad authority to Defendants Department of Homeland Security (“DHS”) and U.S. Customs and Border Patrol (“CBP”) to build “border barrier infrastructure along the southern border.” Defs.’ Opp’n to Pls.’ Mot. for Prelim. Inj. (“Defs.’ Opp’n”) at 12, ECF No. 1 16. 1 The IIRIRA’s statutory scheme reflects congressional intent to ensure that construction proceeds expeditiously, unimpeded by litigation that has historically beset such projects. See Ctr. for Biological Diversity v. McAleenan, 404 F. Supp. 3d 218, 239 (D.D.C. 2019) (concluding it was “crystal clear that Congress intended to eliminate litigation that would delay the expeditious construction of border security infrastructure, to the fullest extent possible, i.e., to the extent constitutionally allowed.” (cleaned up)). It authorizes the DHS Secretary to “waive all legal requirements such Secretary, in such Secretary’s sole discretion, determines necessary.” IIRIRA § 102(c)(1). There also is limited judicial review of these waivers. A federal court can only consider a cause or claim arising from the waiver based on a constitutional violation. Id. § 102(c)(2)(A). And a claim must be brought within sixty days of the waiver. Id. § 102(c)(2)(B). Even for these constitutional challenges, the IIRIRA only provides a limited right of appeal. Any final or interlocutory decision on these waivers “may be reviewed only upon petition for a writ of certiorari to the Supreme Court of the United States.” Id. § 102(c)(2)(C). Invoking the IIRIRA, DHS and other government agencies have set out to construct barrier projects at different locations along the U.S.-Mexico border. See Defs.’ Opp’n at 14. This has prompted litigation all over the country as various entities and individuals seek to halt construction for different reasons, and with mixed results. Last year, the Supreme Court stayed an injunction issued against border barrier construction. See Trump v. Sierra Club, 140 S. Ct. 1 (2019). And it recently declined to lift that stay. See Trump v. Sierra Club, 140 S. Ct. 2620 (2020). Since the Supreme Court’s initial stay decision, other courts have ...
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