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Download Legal Document Case: 19-17501, 02/13/2020, ID: 11597348, DktEntry: 44-1, Page 1 of 222 Nos. 19-17501, 19-17502, 20-15044 In the United States Court of Appeals for the Ninth Circuit SIERRA CLUB; SOUTHERN BORDER COMMUNITIES COALITION, Plaintiffs-Appellees, v. DONALD J. TRUMP, President of the United States, in his official capacity, et al.; Defendants-Appellants. STATE OF CALIFORNIA, et al., Plaintiffs-Appellees-Cross-Appellants, v. DONALD J. TRUMP, President of the United States, in his official capacity, et al.; Defendants-Appellants-Cross-Appellees. APPELLEES’ SUPPLEMENTAL EXCERPTS OF RECORD VOLUME 1 of 2, pp. 1–216 On Appeal from the United States District Court for the Northern District of California Dror Ladin Cecillia D. Wang Noor Zafar American Civil Liberties Union Jonathan Hafetz Foundation Hina Shamsi 39 Drumm Street Omar C. Jadwat San Francisco, CA 94111 American Civil Liberties Union Tel.: (415) 343-0770 Foundation 125 Broad Street, 18th Floor New York, NY 10004 Attorneys for Plaintiffs-Appellees Tel.: (212) 549-2500 (Additional Counsel on Next Page) Case: 19-17501, 02/13/2020, ID: 11597348, DktEntry: 44-1, Page 2 of 222 Mollie M. Lee Sanjay Narayan* American Civil Liberties Union Gloria D. Smith* Foundation of Northern Sierra Club Environmental Law California, Inc. Program 39 Drumm Street 2101 Webster Street, Suite 1300 San Francisco, CA 94111 Oakland, CA 94612 Tel.: (415) 621-2493 Tel.: (415) 977-5772 David Donatti Andre I. Segura American Civil Liberties Union Foundation of Texas P.O. Box 8306 Houston, TX 77288 Tel.: (713) 325-7011 Attorneys for Plaintiffs-Appellees *Attorneys for Plaintiff-Appellee Sierra Club ii Case: 19-17501, 02/13/2020, ID: 11597348, DktEntry: 44-1, Page 3 of 222 INDEX Clerk’s Record No. Document Description Page [Volume 1 of 2, pp. 1–216] 239-2 Second Appendix of Declarations in Support of Plaintiffs’ Reply and Opposition to Defendants’ Cross-Motion for Partial Summary Judgment, Filed Nov. 1, 2019 Exh. 2: Fourth SER1 Declaration of Kevin Bixby Exh. A SER5 Supplemental Request for 239-1 Judicial Notice In Support of Plaintiffs’ Reply and Opposition to Defendants’ Cross-Motion for Partial Summary Judgment, Filed Nov. 1, 2019 Exh. 1: Photos Show SER7 Pentagon-Funded Border Construction Near Yuma Defendants’ Motion for 236-6 Partial Summary Judgment, Filed Oct. 25, 2019 iii Case: 19-17501, 02/13/2020, ID: 11597348, DktEntry: 44-1, Page 4 of 222 Exh. 6: Declaration of SER16 Alex A. Beehler Attachment C: SER38 Barry M. Goldwater Range Integrated Natural Resources Management Plan [Volume 2 of 2, pp. 217–316] 210-2 Request for Judicial Notice in Support of Plaintiffs’ Motion for Partial Summary Judgement, Filed Oct. 11, 2019 Exh. 9: Budget Letter SER217 Exh. 11: Remarks by SER222 President Trump in Cabinet Meeting Exh. 13: Remarks by SER233 President Trump on the National Security and Humanitarian Crisis on Our Southern Border Exh.14: President SER258 Donald J. Trump’s Border Security Victory iv Case: 19-17501, 02/13/2020, ID: 11597348, DktEntry: 44-1, Page 5 of 222 Exh. 15: SER263 Hearing to Receive Testimony on the Department of Defense Budget Posture in Review of the Defense Authorization Request for Fiscal Year 2020 and the Future Years Defense Program Exh. 16: The US SER269 Border Situation Isn’t a National Emergency, Pentagon Officials Tell Congress Exh. 17: DOD Briefing SER274 on Use of 2808 MILCON Funds for Construction of the Border Wall Exh. 19: Remarks by SER280 President Trump During Visit to the Border Wall v Case: 19-17501, 02/13/2020, ID: 11597348, DktEntry: 44-1, Page 6 of 222 Exh. 20: Budget for a SER304 Better America Exh. 21: Defense SER307 Budget Overview Exh. 23: Troops Who SER310 Deployed to the US- Mexico Border Are Getting a Medal Request for Judicial Notice in 168-2 Support of Plaintiffs’ Motion for Partial Summary Judgement, Filed June 12, 2019 Exh. 22: International SER313 Border Vehicle Barrier vi CaseCase: 4:19-cv-00892-HSG 19-17501, 02/13/2020, Document ID: 11597348, 239-2 DktEntry: Filed 11/01/19 44-1, Page Page 7 7of of 222 49 Exhibit 2 SER001 CaseCase: 4:19-cv-00892-HSG 19-17501, 02/13/2020, Document ID: 11597348, 239-2 DktEntry: Filed 11/01/19 44-1, Page Page 8 8of of 222 49 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO-OAKLAND DIVISION SIERRA CLUB and SOUTHERN BORDER COMMUNITIES COALITION, Plaintiffs, Case No.: 4:19-cv-00892-HSG v. DONALD J. TRUMP, President of the United FOURTH DECLARATION OF KEVIN States, in his official capacity; MARK T. ESPER, BIXBY, EXECUTIVE DIRECTOR, Secretary of Defense, in his official capacity; SOUTHWEST ENVIRONMENTAL KEVIN K MCALEENAN, Acting Secretary of CENTER Homeland Security, in his official capacity; and STEVEN MNUCHIN, Secretary of the Treasury, in his official capacity, Defendants. My name is Kevin Bixby and I declare: 1. I am over the age of eighteen and I am competent to make this declaration. I provide this declaration based upon my personal knowledge and would testify under oath to the facts herein if called upon to do so. 2. I am the Executive Director and founder of the Southwest Environmental Center (“SWEC”) in Las Cruces, New Mexico, as well as a dues-paying member of the organization. SWEC forms part of the Southern Border Communities Coalition (“SBCC”), and I serve as a member of SBCC’s Steering Committee, in which capacity I participate in and help guide SBCC’s activities across the southern border. 3. I write this declaration to supplement my previous declaration filed in Sierra Club v. Trump, because I understand Defendants have referred to “existing Normandy-style vehicle barrier” and an existing patrol road as diminishing my interests in the lands designated for construction by El SER002 CaseCase: 4:19-cv-00892-HSG 19-17501, 02/13/2020, Document ID: 11597348, 239-2 DktEntry: Filed 11/01/19 44-1, Page Page 9 9of of 222 49 Paso Projects 2 & 8. Defendants further assert that “there appears to be only private land surrounding [El Paso 8]” and that there will be “a small construction footprint relative to the size of the surrounding land.” 4. I understand that the government will replace vehicle barrier with primary pedestrian barrier and construct new secondary pedestrian barrier through El Paso Project 8, thus sandwiching an existing patrol road between two thirty-foot bollard walls and including lighting and power. I understand that the government will additionally replace over 23 miles of vehicle barrier with primary pedestrian barrier through El Paso Project 2, including the addition of lighting and power. 5. As I stated in my previous declaration, SWEC members, including I, recreate in lands designated for construction through El Paso Projects 2 & 8. Not only do I and SWEC members recreate in these lands, but the preservation of these lands is vital to my organization’s mission. As I stated in my previous declaration, we exist to protect intact nature in this region, which unifies ecosystems into what are called Sky Islands, where tall mountain ranges rise high above the desert. 6. That the land surrounding El Paso 8 is private reflects, rather than diminishes, this ecological significance. It is my understanding, based on information provided by the government, that El Paso 8 will occur on the Diamond A Ranch. As I stated in my previous declaration, I have been invited to and spent time on the Ranch. The Ranch is a working livestock operation devoted to land management and conservation, including grassland restoration. As also stated in my previous declaration, the Nature Conservancy owns a number of conservation easements on the property and calls it “a 500-square-mile gem nestled in the boot heel of New Mexico.” The Ranch hosts more than 700 species of plants, hundreds of species of mammals, reptiles and amphibians, and birds, and is, according to the Nature Conservancy, “one of the most significant natural sites in the nation.” 7. Defendants’ efforts to diminish the significance of these lands or the consequences of proposed construction are inconsistent with my experience of them. Both at the border and far away from it, new 30 foot barriers will blight landscapes I cherish. They are intended, and their effect will be, to fundamentally alter the landscape. Their impact will not merely be felt in their vicinity, but far SER003 CaseCase: 4:19-cv-00892-HSG 19-17501, 02/13/2020, Document ID: 11597348, 239-2 DktEntry: Filed 11/01/19 44-1, Page Page 10 10 of of 222 49 beyond the construction corridors, including from the peaks of surrounding mountains. The walls themselves, as well as the attendant lighting, will impede the sweeping vistas and dark skies that have for decades made me to feel connected to these lands, and to which I have devoted my time and career to protect. I attach a photo of 30-foot bollards built in New Mexico in 2019-in what Defendants called "El Paso Project 1"-to demonstrate the likely impact of these projects. In addition to the aesthetic and physical impacts of these walls, they will, including by sandwiching a patrol road between two of these barriers in El Paso 8, undoubtedly interfere with wildlife migration. 8. These impacts are precisely why I have devoted so much of SWEC's time to tracking the latest developments and trying to figure out exactly which lands are designated for construction, in order to keep updated and participate in numerous meetings with allies and members. I described this work at length in my previous declaration, as well as the frustration caused by the lack of notice and transparency surrounding the administration's plans.
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