Center for Biological Diversity et al v. Noem et al

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Center for Biological Diversity, et al.,
Plaintiffs,
v.
Markwayne Mullin1, et al.,
Defendants.
No. CV-25-00365-TUC-AMM
ORDER
On December 2, 2025, Magistrate Judge James E. Marner issued a Report and
Recommendation (“R&R”) recommending that the Court grant Defendants’ Motion for
Summary Judgment and deny Plaintiffs’ Motion for Summary Judgment. (Doc. 31.)
Plaintiffs filed written objections on December 15, 2025.2 (Doc. 32.) Defendants replied
on January 8, 2026. (Doc. 35.) For the following reasons, the Court adopts the
recommendation.
I. Standard of Review
The standard of review applied to a magistrate judge’s report and recommendation
1 Markwayne Mullin succeeded Kristi Noem as the Secretary of Homeland Security. He is
automatically substituted as Defendant in this action pursuant to Federal Rule of Civil
Procedure 25(d).
2 Plaintiffs request oral argument. (Doc. 32 at 1.) The Court will deny the request because
the briefs provide sufficient information to decide this matter, and oral argument will not
aid in the Court’s decision-making process. Warden v. Walkup, No. CV-13-00283-TUC-
DCB, 2020 WL 1694752, at *2 (D. Ariz. Apr. 7, 2020) (citing Mahon v. Credit Bur. of
Placer Cnty., Inc., 171 F.3d 1197, 1200 (9th Cir. 1999)).
Case 4:25-cv-00365-AMM Document 36 Filed 03/26/26 Page 1 of 11

- 2 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
depends on whether a party files objections. See Thomas v. Arn, 474 U.S. 140, 149–50
(1985). A district court need not review “a magistrate’s factual or legal conclusions, under
a de novo or any other standard, when neither party objects to those findings.” Id. at 150.
If, however, a party objects, the district court “must determine de novo any part of
the magistrate judge’s disposition that has been properly objected to. The district judge
may accept, reject, or modify the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3); 28
U.S.C. § 636(b)(1)(C). Although the district court is not required to review an issue de
novo absent a proper objection, the statute “does not preclude further review by the district
judge, sua sponte or at the request of a party, under a de novo or any other standard.”
Thomas, 474 U.S. at 154.
II. Background
Plaintiffs Center for Biological Diversity and Conversation CATalyst are nonprofit
environmental organizations that seek to halt construction of a border wall in Arizona’s
San Rafael Valley (“Arizona Border Wall Project”). (Doc. 1 at 2–15.) Plaintiffs assert that
the Arizona Border Wall Project will catastrophically impact indigenous endangered
species including jaguars. (Id. at 2, 28.) The Arizona Border Wall Project proposes
construction of 30-foot bollard walls, which Plaintiffs assert “will be impermeable for
larger wildlife and thereby close critical transboundary pathways.” (Id. at 3.) Plaintiffs
further explain that “[i]n addition to blocking migratory routes for many additional animals,
the [Arizona Border Wall] Project will also destroy habitats of 17 endangered and
threatened species, disturb wildlife during construction due to associated noise and light
pollution, divide genetic interchange, impact groundwater availability in local aquifers, and
disrupt the cultural integrity of borderland communities.” (Id.)
On June 5, 2025, the then Secretary of Homeland Security Kristi Noem exercised
her authority under § 102(c) of the Illegal Immigration Reform and Immigrant
Responsibility Act (“IIRIRA”) to facilitate the Arizona Border Wall Project. (Id. at 4.)
Noem waived all legal restrictions on construction of the Arizona Border Wall Project for
Case 4:25-cv-00365-AMM Document 36 Filed 03/26/26 Page 2 of 11

- 3 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
approximately 41 miles of the U.S. Border Patrol Tucson Sector (“the Waiver”).3 (Id. 2,
4.) Noem determined that this was an area of high traffic for undocumented noncitizens.
(Doc. 31 at 8.)
Plaintiffs raise two constitutional challenges to the Waiver. (Doc. 1 at 32–36.) First,
they assert that § 102 violates the separation of powers and nondelegation doctrine by
unconstitutionally delegating to the executive branch power that is exclusively legislative.
(Id. at 32–34.) Specifically, § 102(c) gives the Secretary of Homeland Security the power
and discretion to waive any and all laws when he or she determines such waiver is
“necessary to ensure expeditious construction of the barriers and roads” of the border wall.
In re Border Infrastructure Env’t Litig., 284 F. Supp. 3d 1092, 1103–04 (S.D. Cal. 2018)
aff’d, 915 F.3d 1213 (9th Cir. 2019), cert. denied, 586 U.S. 1035 (Dec. 3, 2018) (quoting
8 U.S.C. § 1103 note). Plaintiffs assert that § 102 violates the nondelegation doctrine
because it lacks “an intelligible principle” that “clearly delineates the general policy” and
the “boundaries of th[e] delegated authority.” (Doc. 11 at 13 (quoting Mistretta v. United
States, 488 U.S. 361, 372–73 (1989)).)
Second, Plaintiffs assert that § 102 violates the Presentment Clause. (Doc. 1 at 35.)
They raise a facial challenge to § 102(c). (Id.) Specifically, Plaintiffs argue that § 102(c)
gives unilateral authority to the Secretary of Homeland Security to waive any laws that
impede the construction of barriers on the border “without Congress passing a law to void
the specific laws at issue or limit their application, and presenting it to the President, as
required by Article I, Section 7 of the U.S. Constitution.” (Id.) Plaintiffs also argue that
§102(c) is unconstitutional as applied because Defendant “chose which laws to waive and
which laws to obey without an act of Congress specifying which particular law or set of
laws could be waived and without the presentation of said Congressional act to the
President.” (Id. at 36.)
///
3 The Waiver covered two separate sections of the Tucson Sector. The first section lies
between Border Monument 121 and Border Monument 17. (Doc. 31 at 7.) The second
section starts at Border Monument 99 and continues 33.4 miles west. (Id. at 8.)
Case 4:25-cv-00365-AMM Document 36 Filed 03/26/26 Page 3 of 11

- 4 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
III. Report and Recommendation
The Magistrate Judge rejected both claims. (Doc. 31.) First, the Magistrate Judge
found that § 102 does not violate the nondelegation doctrine. (Id. at 10–15.) The Magistrate
Judge concurred with various other courts in finding that § 102 clearly delineates a general
policy of “deterrence of illegal crossings by way of the construction of additional physical
barriers along the United States border.” (Id. at 12 (citing In re Border Infrastructure Env’t
Litig., 284 F. Supp. 3d at 1133; Defs. of Wildlife v. Chertoff, 527 F. Supp. 2d 119 (D. D.C.
2007), cert. denied, 554 U.S. 918 (2008)).)
In so doing, the Magistrate Judge followed other courts in rejecting Plaintiffs’
argument that the sheer breadth of delegation of power in § 102(c) evinces the lack of a
general policy. (Id. at 10, 12.) The Magistrate Judge concluded that the Secretary of
Homeland Security’s authority under § 102(c) is “meaningfully bounded” despite the
number of laws that could be subject to waiver because that authority is exercised for a
narrow purpose prescribed by Congress. (Id. at 12–13 (citing Defs. of Wildlife, 527 F. Supp.
2d at 127).) The Magistrate Judge also rejected Plaintiffs’ argument that “necessary” and
“expeditious” are not meaningful boundaries and that “the mere objective of building
barriers” does not provide sufficient guidance. (Id. at 12 (quoting Doc. 11 at 15–16).) The
Magistrate Judge applied the Supreme Court’s finding in Whitman v. American Trucking
Association, 531 U.S. 457, 475 (2001) that “the degree of agency discretion that is
acceptable varies according to the scope of the power congressionally conferred.” (Id. at
14.) The Magistrate Judge further concurred with the court in Defenders of Wildlife in
finding that, “[w]hen the area to which the legislation pertains is one where the Executive
Branch already has significant independent constitutional authority, delegations may be
broader than in other contexts.” (Id. at 14–15 (quoting Defs. of Wildlife, 527 F. Supp. 2d at
129).)
Second, the Magistrate Judge rejected Plaintiff’s Presentment Clause challenge. (Id.
at 16.) Citing similar holdings in Defenders of Wildlife and In re Border Infrastructure
Environmental Litigation, the Magistrate Judge concluded that § 102(c) does not allow the
Case 4:25-cv-00365-AMM Document 36 Filed 03/26/26 Page 4 of 11

- 5 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Secretary of Homeland Security to alter, repeal, or cancel any statutory provision. (Id. at
16–17.) Rather, the waived laws remain in effect as enacted by Congress but not applied
as to the specific area targeted for border construction. (Id.)
Accordingly, the Magistrate Judge recommended that this Court grant Defendants’
Motion for Summary Judgment and deny Plaintiffs’ Motion for Summary Judgment.
IV. Plaintiffs’ Objections
Plaintiffs object to the R&R. (Doc. 32.) They first argue that the Magistrate Judge
misconstrued their nondelegation challenge and “fail[ed] to meaningfully grapple with the
nature of the delegation of picking and choosing which laws should be sacrificed . . . .” (Id.
at 7–8.) Plaintiffs contend this requires the Secretary of Homeland Security to carry out the
“quintessentially legislative power” of weighing construction of the border wall “against
the universe of other legally protected public and private interests” on which he or she is
not an expert. (Id. at 8, n.3.) Plaintiffs further assert that Congress did not prescribe
sufficient guidance that would enable the Secretary of Homeland Security to make this
calculation. (Id. at 9.)
Plaintiffs also argue that the Magistrate Judge failed to consider “the authority’s
elephantine girth.” (Id.) According to Plaintiffs, “neither the [R&R], nor the cases on which
it relies, provide any reasoning as to how the breathtakingly large scope of the waiver
authority in § 102 is consistent with Congress’[s] constitutional obligation to provide the
Executive Branch with sufficient boundaries for a broadly delegated power.” (Id. at 10.)
Plaintiffs assert that the Magistrate Judge did “not even discuss the astonishing scope of
the IIRIRA waiver authority outside of [noting] the ‘number of laws that may theoretically
be waived.’” (Id. at 9 (quoting Doc. 31 at 13).)
Second, Plaintiffs object to the finding that § 102(c) complies with the Presentment
Clause arguing that the Magistrate Judge “did not grapple with Plaintiffs’ arguments as to
why [prior] cases were decided incorrectly.” (Id. at 13.) Plaintiffs argue that waivers for
border construction essentially function as amendments due to the vast number of laws
they affect, making them distinguishable from any other waiver delegated to executive
Case 4:25-cv-00365-AMM Document 36 Filed 03/26/26 Page 5 of 11

- 6 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
decision-making. (Id. at 14.)
V. Discussion
The Court has reviewed and considered Plaintiffs’ Complaint (Doc. 1); Plaintiffs’
Motion for Summary Judgment and Statement of Facts (Docs. 11–13); Defendants’ Motion
for Summary Judgment and Response (Doc. 18); Defendants’ Statement of Facts and
Controverting Statement of Facts (Docs. 19–20); Plaintiffs’ Response and Reply (Doc. 21);
Plaintiffs’ Controverting Statement of Facts (Doc. 22); Defendants’ Reply (Doc. 30); the
Magistrate Judge’s R&R (Doc. 31); Plaintiffs’ Objections (Doc. 32); and Defendants’
Reply (Doc. 35). The Court will adopt the recommendation.
As a threshold matter, objections “are not to be construed as a second opportunity
to present the arguments already considered by the Magistrate Judge.” Betancourt v. Ace
Ins. Co. of Puerto Rico, 313 F. Supp. 2d 32, 34 (D.P.R. 2004); Hall v. Kirkegard, CV 14–
11–H–DLC–JTJ, 2018 WL 747375, at *2 (D. Mont. Feb. 7, 2018) (quoting Mont. Shooting
Sports Ass’n v. Holder, No. CV 09–147–M–DWM–JCL, 2010 WL 4102940, at *2 (D.
Mont. Oct. 18, 2010)) (“It is not sufficient for the objecting party to merely restate
arguments made before the magistrate . . . .”). “There is no benefit to the judiciary ‘if the
district court[] is required to review the entire matter de novo because the objecting party
merely repeats the arguments rejected by the magistrate.’” Hall, 2018 WL 747375, at *2
(quoting Mont. Shooting Sports Ass’n, 2010 WL 4102940, at *2).
Plaintiffs’ objections make substantially the same arguments that were presented to
and rejected by the Magistrate Judge. They attempt to require this Court to review the entire
matter de novo by asserting that the Magistrate Judge misconstrued or did not grapple with
the issues. But that is not the case. The Magistrate Judge properly considered Plaintiffs’
arguments and concluded that Plaintiffs fail to present a successful constitutional challenge
to § 102(c). The Magistrate Judge reached this conclusion after carefully considering the
arguments and facts presented here, as well as the holdings from other courts that have
considered these exact arguments in depth. The Court will nonetheless address Plaintiffs’
renewed arguments in an abundance of caution.
Case 4:25-cv-00365-AMM Document 36 Filed 03/26/26 Page 6 of 11

- 7 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
a. Nondelegation Doctrine
The Magistrate Judge properly concluded that § 102(c) does not violate the
nondelegation doctrine because Congress provided a sufficient intelligible principle. As
the Magistrate Judge correctly explained, “[u]nder the intelligible principle standard, a
statute delegating authority is constitutional if it ‘clearly delineates [(1)] the general policy,
[(2)] the public agency which is to apply it, and [(3)] the boundaries of the delegated
authority.’”4 In re Border Infrastructure Env’t Litig., 284 F. Supp. 3d at 1131 (quoting
Mistretta, 488 U.S. at 372–73)).
i. General Policy
As to the first element, Plaintiffs argue that § 102(c) lacks a general policy because
“the general goal of deterring illegal entry does nothing to inform the Secretary’s waiver
authority of deliberating on which laws to nullify and weighing competing statutorily-
protected interests.” (Doc. 32 at 8–9.) In other words, Plaintiffs challenge § 102(c)’s
delegation of the “quintessentially legislative” power to pick and choose between laws.
(Id.)
This argument is unavailing because Congress is permitted to do precisely what
Plaintiffs challenge. The Supreme Court has long allowed Congress to delegate its
legislative authority to other branches of government as long as Congress provides some
guidance. Defs. of Wildlife, 527 F. Supp. 2d at 126 (collecting cases). Indeed, “[a]s a result
of this broad constitutional standard, the Supreme Court has upheld all Congressional
delegations of power since 1935.” In re Border Infrastructure Env’t Litig., 284 F. Supp. 3d
at 1131 (citing Mistretta, 488 U.S. at 373; Loving v. United States, 517 U.S. 748, 771
(1996)). “[O]nly the most extravagant delegations of authority, those providing no
standards to constrain administrative discretion, have been condemned by the Supreme
Court as unconstitutional.” Defs. of Wildlife, 527 F. Supp. 2d at 129 (quoting Humphrey v.
Baker, 848 F.2d 211, 217 (D.C. Cir. 1988)).
The Magistrate Judge considered Plaintiffs’ pick-and-choose argument and rejected
4 There is no dispute as to the second element.
Case 4:25-cv-00365-AMM Document 36 Filed 03/26/26 Page 7 of 11

- 8 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
it because Congress outlined a sufficient policy to guide the judgment required of the
Secretary of Homeland Security: “deterrence of illegal crossings by way of the construction
of additional physical barriers along the United States border.” (Doc. 31 at 12.) In response
to the arguments that Plaintiffs present here, the courts in In re Border Infrastructure
Environmental Litigation and Defenders of Wildlife did the same. See In re Border
Infrastructure Env’t Litig., 284 F. Supp. 3d at 1133 (“[T]he Court finds that Congress
clearly delineated the ‘general policy’ of section 102 as deterrence of illegal crossings
through construction of additional physical barriers to improve U.S. border protection . . .
.”); Defs. of Wildlife, 527 F. Supp. 2d at 127 (quoting Mistretta, 488 U.S. at 372–73) (“The
‘general policy’ is ‘clearly delineated’—i.e. to expeditiously ‘install additional physical
barriers and roads . . . to deter illegal crossing in areas of high illegal entry.’”). The Court
similarly concludes that § 102(c) is sufficiently guided by the general policy outlined in
the § 102(a): “The Secretary of Homeland Security shall take such actions as may be
necessary to install additional physical barriers and roads . . . in the vicinity of the United
States border to deter illegal crossings in areas of high illegal entry into the United States.”
In re Infrastructure Env’t Litig., 284 F. Supp. 3d at 1104 (quoting 8 U.S.C. § 1103 note).
Furthermore, like the Magistrate Judge, this Court cannot adopt Plaintiffs’ position
that § 102 lacks a general policy because it does not provide detailed guidance. “While it
is true that section 102(c) contains considerably fewer details than other challenged
statutes, the Supreme Court does not demand that Congress outline specific factors or
criteria when delegating authority. Rather, Congress need only delineate the boundaries of
the delegated authority in broad and general terms.” Id. at 1134. “[E]ven in sweeping
regulatory schemes we have never demanded . . . that statutes provide a ‘determination
criterion’ for saying ‘how much [of the regulated harm] is too much.’” Id. (quoting
Whitman, 531 U.S. at 475) (alteration in original).
ii. Boundaries of Delegated Authority
The Court, like the Magistrate Judge, has considered Plaintiffs’ argument that § 102
lacks meaningful boundaries due to its “elephantine girth.” (Doc. 32 at 9.) The argument
Case 4:25-cv-00365-AMM Document 36 Filed 03/26/26 Page 8 of 11

- 9 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
fails. First, despite Plaintiffs’ objections, the Court is not required to parse out the number
or type of laws potentially impacted by a waiver to adequately assess whether the breadth
of the delegated authority renders it unconstitutional. The Magistrate Judge considered the
wide scope of delegation but appropriately found that § 102(c) contains meaningful
boundaries.
This Court finds the same. Specifically, § 102(b) limits the Secretary of Homeland
Security’s waiver authority both temporally and geographically by only allowing waiver
of laws that he or she deems “necessary to ensure the expeditious construction of barriers
and roads.” In re Border Infrastructure Env’t Litig., 284 F. Supp. 3d at 1133–34 (emphasis
added). Furthermore, “while courts have recognized limits on Congress’[s] authority to
delegate its legislative power, those limits are less rigid where the entity ‘itself possesses
independent authority over the subject matter[,]’” just as the Executive Branch does over
immigration. Id. at 1132 (quoting Loving, 517 U.S. at 772).
Therefore, the Court concurs with Defenders of Wildlife in observing that “despite
the surface appeal of plaintiffs’ arguments [under the nondelegation doctrine], they cannot
survive careful scrutiny, for there is no legal authority or principled basis upon which a
court may strike down an otherwise permissible delegation simply because of its broad
scope.” Defs. of Wildlife, 527 F. Supp. 2d at 128 (rejecting substantially the same scope
arguments presented in this case).
Accordingly, the Court finds that Plaintiffs’ constitutional challenge to § 102(c)
pursuant to the nondelegation doctrine fails.
b. Presentment Clause
The Magistrate Judge also properly concluded that § 102(c) does not violate the
Presentment Clause. “The Constitution does not allow the Executive ‘to enact, to amend,
or to repeal statutes.’” In re Border Infrastructure Env’t Litig., 284 F. Supp. 3d at 1141
(quoting Clinton v. City of N.Y., 524 U.S. 417, 438 (1998)). Plaintiffs argue that, “because
of § 102(c)’s behemoth nature, the IIRIRA waivers inevitably function as amendments to
the underlying laws being waived.” (Doc. 32 at 13–14.) They explain that Defendant
Case 4:25-cv-00365-AMM Document 36 Filed 03/26/26 Page 9 of 11

- 10 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
“effectively added a new provision stating that the laws do not apply when [the Secretary
of Homeland Security] says so.” (Id. at 14.) Plaintiffs cite to Clinton v. City of New York
as support. (Doc. 11 at 19–20.)
As the Magistrate Judge noted, the Supreme Court in Clinton invalidated the Line
Item Veto Act that allowed the Executive Branch to “replace[] the once legally-passed bills
with truncated replacements.” In re Border Infrastructure Env’t Litig., 284 F. Supp. 3d at
1132 (citing Clinton, 524 U.S. at 438). The Court agrees with the holding in In re Border
Infrastructure Environmental Litigation, which concluded that “[t]his situation, however,
is distinguishable from Clinton. Here, the Waivers are narrow in scope and only for the
purpose of building border barriers[,] something that is permitted by section 102(c).” 284
F. Supp. 3d at 1141. “[T]he statutes largely retain legal force and effect because the §
102(c) waivers only disturb the waived statutes for a specific purpose and for a specific
time.” Id.; see also Defs. of Wildlife, 527 F. Supp. 2d at 124 (“The REAL ID Act’s waiver
provision differs significantly from the Line Item Veto Act. The Secretary has no authority
to alter the text of any statute, repeal any law, or cancel any statutory provision, in whole
or in part.”).
The Court finds unavailing Plaintiffs’ argument that In re Border Infrastructure
Environmental Litigation and Defenders of Wildlife were decided incorrectly because they
“likened § 102(c) to plain vanilla waiver provisions[.]” (Doc. 32 at 14.) Neither In re
Border Infrastructure Environmental Litigation nor Defenders of Wildlife negated the
“sweeping waiver authority” of § 102(c). On the contrary, those courts, and the Magistrate
Judge, recognized the substantial effect on dozens of laws that a § 102(c) waiver could
have. They nevertheless concluded, as this Court does, that § 102(c) does not violate the
Presentment Clause simply because it is among the broadest delegations of power that
Congress has enacted.5
///
5 Similarly, while the Court appreciates the possible effect on indigenous endangered
species in Southern Arizona as Plaintiffs so thoroughly argue, it may not disregard these
legal findings.
Case 4:25-cv-00365-AMM Document 36 Filed 03/26/26 Page 10 of 11

- 11 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
VI. Conclusion
For the reasons stated above, this Court must reject Plaintiffs’ challenges to waivers
under § 102(c).
IT IS THEREFORE ORDERED that:
(1) The Magistrate Judge’s Report and Recommendation is ADOPTED. (Doc. 31.)
(2) Defendants’ Motion for Summary Judgment is GRANTED. (Doc. 18.)
(3) Plaintiffs’ Motion for Summary Judgment is DENIED. (Doc. 11.)
(4) The Clerk of Court shall enter judgment in favor of Defendants, term any
pending motions, and close the file in this case.
Dated this 26th day of March, 2026.
Case 4:25-cv-00365-AMM Document 36 Filed 03/26/26 Page 11 of 11