Case 1:20-cv-02712 Document 1 Filed 09/23/20 Page 1 of 68 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MANZANITA BAND OF THE KUMEYAAY Case No. ______________ NATION, 6 Old Mine Road Boulevard, CA 91905, CAMPO KUMEYAAY NATION, 36190 Church Road, Suite 1 Campo, CA 91906, EWIIAAPAAYP BAND OF KUMEYAAY INDIANS, 4054 Willows Road Alpine, CA 91901 COMPLAINT FOR IIPAY NATION OF SANTA YSABEL, DECLARATORY AND P.O. Box 130 INJUNCTIVE RELIEF Schoolhouse Canyon Road Santa Ysabel, CA 92070 SYCUAN BAND OF THE KUMEYAAY NATION, 1 Kwaaypaay Court El Cajon, CA 92019 on behalf themselves and on behalf of their members as parens patriae, JOHN ELLIOTT P.O. Box 1122 19 Blackwood Road Boulevard, CA 91905, and KUMEYAAY HERITAGE PRESERVATION COUNCIL, 5663 Balboa Avenue, Suite 610 San Diego, CA 92111 Plaintiffs, v. CHAD WOLF, in his official capacity as Under Secretary of Homeland Security for Strategy, Policy, and Plans, 1 Case 1:20-cv-02712 Document 1 Filed 09/23/20 Page 2 of 68 MS 0445 2707 Martin Luther King Jr. Avenue SE Washington, DC 20528-0525, THE DEPARTMENT OF HOMELAND SECURITY, MS 0525 2707 Martin Luther King Jr. Avenue SE Washington, DC 20528-0525, MARK MORGAN, in his official capacity as Senior Official Performing the Duties of the Commissioner of United States Customs and Border Protection, 1300 Pennsylvania Ave NW Washington, DC 20229, UNITED STATES CUSTOMS AND BORDER PROTECTION, 1300 Pennsylvania Avenue NW Washington, DC 20229, TODD SEMONITE, in his official capacity as Commanding General of the United States Army Corps of Engineers, 441 G Street NW Washington, DC 20314-1000, and THE UNITED STATES ARMY CORPS OF ENGINEERS, 441 G Street NW Washington, DC 20314-1000 Defendants. I. NATURE OF THE ACTION 1. The Kumeyaay people have, historically and to the present day, lived in what is now California and Mexico, on both sides of the border imposed on the land by the United States and Mexico in the mid-19th century. Today, the Kumeyaay Nation is comprised of thirteen federally-recognized Indian tribes occupying reservations in southern California, whose members reside in both the United States and Mexico, and regularly travel back and forth for cultural, and 2 Case 1:20-cv-02712 Document 1 Filed 09/23/20 Page 3 of 68 religious purposes, as the Kumeyaay people have historically done. The Kumeyaay people, including members of the Plaintiff Tribes and individual Plaintiff, continue to practice their religion and maintain their culture as part of their daily life throughout their territory, including the border region on both sides, where sacred sites, trails, plants and medicines, and the landscape itself have sustained their people for hundreds of years. The Plaintiff Kumeyaay Tribes are today all located in San Diego County, California. They seek a declaratory judgment and injunctive relief to protect the Kumeyaay people’s ability to practice their religious beliefs and cultural traditions at and across the border region, as they have done for hundreds of years, by preventing Defendants from constructing a trench, a 30-foot-high fence that extends from that trench, and its related infrastructure at the border, and within the region of the border relied on by the Kumeyaay people, until the Defendant Department of Homeland Security and its officials comply with federal law. Specifically, the Religious Freedom Restoration Act (“RFRA”) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as amended (“IIRIRA”), require Defendants to consult with the Kumeyaay Tribes on how to avoid the unnecessary destruction and desecration of Kumeyaay religious and cultural sites, human remains, sacred and funerary objects, and the historical record of their culture that marks the landscape, before constructing, during construction, and while maintaining the border fence, and further require Defendants to implement the results of that consultation to protect the religious and cultural rights of the Kumeyaay people for that same period. 2. This action is made necessary by the failure of the Defendants, in designing and constructing a fence and related infrastructure at the U.S.-Mexico border, to consult with the Kumeyaay Tribes about how to avoid or minimize the destruction and desecration of locations and disruption of practices that are central to Kumeyaay religious life and practice. The Defendants, 3 Case 1:20-cv-02712 Document 1 Filed 09/23/20 Page 4 of 68 each of whom has failed to consult with the Kumeyaay Tribes, are: the Under Secretary of Homeland Security for Strategy, Policy, and Plans Chad Wolf, who is purporting to exercise the duties of the Acting Secretary of Homeland Security (“Defendant Wolf”) but who has no legal authority to do so; the Department of Homeland Security (“DHS”); the Senior Official Performing the Duties of the Commissioner of United States Customs and Border Protection, Mark Morgan (“Commissioner”); the United States Customs and Border Protection (“CBP”); Commanding General of the United States Army Corps of Engineers Lieutenant General Todd Semonite (“Commanding General”); and the United States Army Corps of Engineers (“Corps”) (collectively, “Defendants”). 3. Defendants’ actions violate their obligations under IIRIRA and RFRA, the Kumeyaay people’s rights under IIRIRA and RFRA, and the rights of the Kumeyaay people to the free exercise of religion under the First Amendment to the United States Constitution. Defendants are therefore acting ultra vires, and Plaintiffs are entitled to declaratory and injunctive relief against them, that will protect the religious and cultural rights of the Plaintiff Kumeyaay Tribes and their members’ rights to religious exercise, all of which are protected by federal law. 4. In addition, because the Defendant Wolf has no legal authority to exercise the duties of the Secretary of Homeland Security, he cannot lawfully waive the application of other federal laws to the border fence project in eastern San Diego County and the border fence project in western Imperial County, and therefore the Defendants are acting arbitrarily, capriciously, contrary to law, and without observance of procedures required by law by failing to comply with the National Environmental Policy Act, the National Historic Preservation Act, the Endangered Species Act, the Native American Graves Protection and Repatriation Act, and the American 4 Case 1:20-cv-02712 Document 1 Filed 09/23/20 Page 5 of 68 Indian Religious Freedom Act, and their actions must be reversed under the Administrative Procedure Act. 5. Furthermore, the Defendant Wolf’s purported waiver of the application of various federal laws to the border fence project in eastern San Diego County and the border fence project in western Imperial County violates the Free Exercise Clause of the First Amendment because by purporting to waive the application of the American Indian Religious Freedom Act and the Native American Graves Protection and Repatriation Act, the Defendant Wolf has “impose[d] special disabilities on the basis of religious views or religious status,” Emp’t Div. v. Smith, 494 U.S. 872, 877 (1990) (citations omitted), with respect to Native American religions, but no other. The Defendant Wolf is therefore acting arbitrarily, capriciously, contrary to law, and without observance of procedures required by law, and he induced Defendants DHS, CBP, Commissioner Morgan, the Corps, and Commanding General Semonite to rely on the purported waiver and themselves violate the law. II. PARTIES 6. The Plaintiff Manzanita Band of the Kumeyaay Nation (“Manzanita”) is a federally-recognized Indian tribe, see Indian Entities Recognized by and Eligible to Receive Services from the United States Bureau of Indian Affairs, 85 Fed. Reg. 5462, 5464 (Jan. 30, 2020) (listed as “Manzanita Band of Diegueno Mission Indians of the Manzanita Reservation, California”), with a governing body duly recognized by the Department of the Interior, and is a member of the Kumeyaay Nation. The Manzanita Reservation is 4,752 acres, located just north of Live Oak Springs, California and the Campo Reservation, approximately ten miles north of the U.S.-Mexico border. Most members of the Manzanita Band live on the Reservation and in and around the Kumeyaay Nation’s aboriginal territory. 5 Case 1:20-cv-02712 Document 1 Filed 09/23/20 Page 6 of 68 7. The Plaintiff Campo Kumeyaay Nation (“Campo”) is a federally-recognized Indian tribe, see id. at 5463 (listed as “Campo Band of Diegueno Mission Indians of the Campo Indian Reservation, California”), with a governing body duly recognized by the Department of the Interior, and is a member of the Kumeyaay Nation. The Campo Reservation is 16,512 acres located around Live Oak Springs, Clover Flat, and Tierra del Sol, California. The southern boundary of the Campo Reservation is located approximately 0.4 miles north of the U.S.-Mexico border. Members of the Campo Kumeyaay Nation live on the Reservation, and in and around the Kumeyaay Nation’s aboriginal territory. 8. The Plaintiff Ewiiaapaayp Band of Kumeyaay Indians (“Ewiiaapaayp”) is a federally-recognized Indian tribe, see id., with a governing body duly recognized by the Department of the Interior, and is a member of the Kumeyaay Nation. The main Ewiiaapaayp Reservation is approximately 4,102 acres, located southeast of Mount Laguna, California, approximately thirty miles north of the U.S.-Mexico border. Most members of the Ewiiaapaayp Band live off-reservation in and around the Kumeyaay Nation’s aboriginal territory. 9. The Plaintiff Iipay Nation of Santa Ysabel (“Iipay”) is a federally-recognized Indian tribe, see id., with a governing body duly recognized by the Department of the Interior, and is a member of the Kumeyaay Nation. The Santa Ysabel Reservation is approximately 15,526 acres, located near Santa Ysabel and Julian, California, approximately thirty-five miles north of the U.S.-Mexico border. Most members of the Iipay Nation live on the reservation and in and around the Kumeyaay Nation’s aboriginal territory.