Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 1 of 65

EXHIBIT A
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 2 of 65

SETTLEMENT AGREEMENT

This Settlement Agreement is made between and among Plaintiffs State of California,

State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois,

State of Maine, State of Maryland, Commonwealth of Massachusetts, Attorney General Dana

Nessel on behalf of the people of Michigan, State of Minnesota, State of Nevada, State of New

Jersey, State of New Mexico, State of New York, State of Oregon, State of Rhode Island, State

of Vermont, Sierra Club, Southern Border Communities Coalition (collectively “Plaintiffs”), and

the United States of America; Joseph R. Biden Jr., in his official capacity as President of the

United States of America; Lloyd J. Austin, in his official capacity as Secretary of Defense;

Alejandro Mayorkas, in his official capacity as Secretary of Homeland Security; Deb Haaland in

her official capacity as Secretary of the Interior; Janet Yellen, in her official capacity as

Secretary of the Treasury; Christine Wormuth, in her official capacity as Secretary of the Army;

Carlos Del Toro, in his official capacity as Secretary of the Navy; Frank Kendall, in his official

capacity as Secretary of the Air Force; U.S. Department of Defense; U.S. Department of

Treasury; U.S. Department of Homeland Security; U.S. Department of the Interior (collectively,

“Defendants”).

RECITALS

WHEREAS Plaintiffs filed four lawsuits in the United States District Court for the

Northern District of California captioned State of California et. al., v. Biden et al., Case No.

4:19-CV-872-HSG (“California I”), State of California et. al., v. Biden et al., Case No. 4:20-CV-

1563-HSG (“California II”), Sierra Club et. al. v. Biden et. al., Case No. 4:19-cv-00892-HSG

(“Sierra Club I), and Sierra Club et. al. v. Biden et. al., Case No. 4:20-cv-01494-HSG (“Sierra

Club II”), challenging construction of border barriers on the southern border of the United States

1
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 3 of 65

using funds provided by the Department of Defense (“DoD”) and Department of Treasury in

fiscal years 2019 and 2020.

WHEREAS Plaintiffs alleged that Defendants took action that was ultra vires and in

violation of 10 U.S.C. § 284, 10 U.S.C. § 2808, the National Environmental Policy Act, the

Administrative Procedure Act, 31 U.S.C. § 1341(a)(1), 31 U.S.C § 1301(a), 31 U.S.C. § 1532,

the fiscal year 2019 and 2020 Department of Defense Appropriations Acts and Consolidated

Appropriations Acts, the Appropriations Clause of the U.S. Constitution, the Presentment Clause

of U.S. Constitution, and the separation of powers. See Am. Compl., California I, ECF No. 47;

Compl., California II, ECF No. 1; Am. Compl., Sierra Club I, ECF No. 26; Compl., Sierra Club

II, ECF No. 1.

WHEREAS, on January 20, 2021, President Biden issued a Proclamation declaring that

“[i]t shall be the policy of [his] Administration that no more American taxpayer dollars be

diverted to construct a border wall.” See Proclamation No. 10142, 86 Fed. Reg. 7225, 7225 (Jan.

27, 2021).

WHEREAS, in furtherance of that policy, the President:

(A) Directed the Secretary of Defense and the Secretary of Homeland Security to “pause

work on each construction project on the southern border wall, to the extent permitted by law,”

id. § 1(a)(i), and to “pause immediately the obligation of funds related to construction of the

southern border wall, to the extent permitted by law.” Id. § 1(a)(ii).

(B) Ordered agencies to “compile detailed information on all southern border wall

construction projects, the completion status of each wall construction project, and the funds used

for wall construction since February 15, 2019.” Id. § 1(a)(iii).

(C) Directed the Secretary of Defense and the Secretary of Homeland Security, in

consultation with the Attorney General and other officials, to develop a plan within 60 days “for

2
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 4 of 65

the redirection of funds concerning the southern border wall, as appropriate and consistent with

applicable law.” Id. § 2.

WHEREAS, on April 30, 2021, Defendants notified the Court and Plaintiffs that DoD

had decided to cancel all border wall projects undertaken pursuant to 10 U.S.C. § 284 and 10

U.S.C. § 2808. See Notice of Decision by the Department of Defense to Cancel Border Wall

Projects Undertaken Pursuant to 10 U.S.C. § 284 and 10 U.S.C. § 2808. See California I, ECF

No. 292; Sierra Club I, ECF No. 307.

WHEREAS, on June 11, 2021, DoD and the Department of Homeland Security (“DHS”)

completed their plans for the redirection of funds concerning the southern border wall, as

directed by Section 2 of Proclamation No. 10142 (“Border Wall Plan”). See California I, ECF

No. 295; Sierra Club I, ECF No. 310. Defendants’ Border Wall Plan committed to:

(A) Cancel all border wall projects undertaken pursuant to 10 U.S.C. § 284 and 10

U.S.C. § 2808.

(B) Redirect approximately $2.2 billion of DoD military construction funds that were

diverted away from military construction projects back to fund those projects. Id. at

2.

(C) Not undertake any new barrier construction work on the former § 284 and § 2808

projects. Id. at 4.

(D) End border wall construction funded by the Treasury Forfeiture Fund and return any

excess funds to the Fund. Id. at 4.

3
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 5 of 65

(E) Fund remediation work at the § 284 and § 2808 Project Areas that are turned over to

DHS with DHS’s Fiscal Year 2021 border wall appropriation, subject to the

availability of those funds. Id. at 3-4.1

WHEREAS, on July 11, 2022, DHS amended its Border Wall Plan to set forth additional

policies and proposed uses for its appropriations from fiscal years 2018–2021. The Amended

Plan explained, inter alia, that DHS intends to prioritize the use of the fiscal year 2020 and 2021

barrier system appropriations to fund close-out, remediation, and mitigation work in the § 284

and § 2808 Project Areas, and the installation of system attributes in areas where physical barrier

has already been constructed.

WHEREAS, Defendants have organized their remediation activities in the § 284 and

§ 2808 Project Areas into three sequential phases:

Phase 1: As part of closing out and terminating the border wall construction

contracts, the U.S. Army Corps of Engineers authorized its contractors to perform

a limited set of safety measures in the § 284 and § 2808 Project Areas. As of

February 2022, the U.S. Army Corps of Engineers estimates the total cost of the

Phase 1 authorized demobilization and safety activities in the § 284 and § 2808

Project Areas will be approximately $50 million, with final costs negotiated as

part of the final settlement of the contracts.

1
As used in this agreement, the § 284 and § 2808 Project Areas mean the geographic locations
where border barrier infrastructure construction was undertaken by Defendants using (a) money
transferred pursuant to section 8005 of the Department of Defense Appropriations Acts of 2019
and 2020, and undertaken pursuant to 10 U.S.C. § 284; and (b) fiscal year 2015–2019 military
construction funds made available pursuant to 10 U.S.C. § 2808, as set forth and described in the
Administrative Records Defendants filed in California I, California II, Sierra Club I, and Sierra
Club II.

4
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 6 of 65

Phase 2: As part of its plan to use its fiscal year 2020 and fiscal year 2021 border

infrastructure funds responsibly and consistent with the purpose for which they

were appropriated, DHS will fund or execute more comprehensive remediation

projects in the § 284 and § 2808 Project Areas, subject to the availability of funds.

Phase 2 remediation work will focus on priority remediation projects that are

needed to address life and safety, including the protection of the public, Border

Patrol agents, and nearby communities from potential harms, and avert further

environmental damage or degradation. As of February 2022, DHS estimates the

total cost of the Phase 2 remediation work in the § 284 and § 2808 project areas

will be approximately $1.1 billion.

Phase 3: As a part of its plan to use fiscal year 2020 and fiscal year 2021 border

infrastructure funds responsibly and consistent with the purpose for which they

were appropriated, DHS will fund or execute environmental mitigation projects to

offset or mitigate the impacts of border barrier construction in the § 284 and §

2808 Project Areas, subject to the availability of funds. Phase 3 projects are

intended to offset impacts from border barrier construction in the former § 284

and § 2808 project areas. As set forth below, DHS agrees to allocate $45 million

for Phase 3 environmental mitigation projects to offset or mitigate the impacts of

border barrier construction in the § 284 and § 2808 Project Areas, subject to the

availability of funds.

WHEREAS, DHS is actively engaged in regular consultation with representatives from

federally-recognized Indian tribes, including the Tohono O’odham Nation, and intertribal

organizations concerning implementation of remediation measures to address impacts to cultural

5
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 7 of 65

resources and potential human remains from border barrier construction in the § 284 and § 2808

Project Areas.

WHEREAS by and through this Agreement, Plaintiff and Defendants (“the Parties”)

agree to resolve all of the claims in California I, California II, Sierra Club I, and Sierra Club II

(“the Lawsuits”), and any and all other claims, complaints, or issues that have been or could have

been asserted by Plaintiffs against Defendants as part of the Lawsuits, without the need for

further litigation and without any admission of liability;

NOW, THEREFORE, in consideration of the promises and mutual covenants and other

good and valuable consideration set forth herein, the Parties hereby stipulate and agree as

follows:

AGREEMENT

Stop Border Barrier Construction Using Challenged Funds

1. Defendants agree to stop construction of border barriers to the extent such

construction activity is funded by (1) money transferred pursuant to section 8005 of the

Department of Defense Appropriations Acts of 2019 and 2020, and undertaken pursuant to 10

U.S.C. § 284; or (2) military construction funds appropriated to the Department of Defense in

fiscal years 2015–2019, and undertaken pursuant to 10 U.S.C. § 2808. Except as otherwise

provided forth herein, this Agreement shall not apply to border barrier construction using other

sources of funds, including funds appropriated by Congress to DHS or its component U.S.

Customs and Border Protection (“CBP”).

Restore Funding to Military Construction Projects

2. DoD has restored military construction funds to the military construction projects

in the amounts listed on the chart below:

6
Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 8 of 65
Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 9 of 65
Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 10 of 65
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 11 of 65

4 Antelope Hidalgo, Bison,

Wells East NM Chihuahuan
pronghorn,
Mexican
wolf

7. DHS’s agreement to install wildlife passages at the four locations listed above is

subject to the following conditions:

a. DHS reserves the right to install gates in the passages that would enable the

passages to be closed if exigent circumstances or border security operations

warrant temporary closure of the passages;

b. In the event the passages are closed, DHS agrees to notify Sierra Club and the

Southern Border Communities Coalition within 48 hours of the closure,

including the reason for the closure. During the period of any closure, DHS

agrees to provide Sierra Club, Southern Border Communities Coalition, and

the State of California and the State of New Mexico, with periodic status

reports and, when such information is available, the anticipated date for re-

opening the passages. DHS agrees to provide notice of any closure for a

period of two years from the date the passages are installed. The parties agree

to discuss renewal of the notice requirement as part of the re-evaluation

process described in Paragraph 7(d) & (e).

c. DHS reserves the right to place alternative forms of wildlife-friendly

infrastructure near the passages and install barrier system attributes near the

passages to detect unauthorized entry into the United States. Razor wire

fencing will not be utilized as an alternative form of infrastructure near the

passages. Barbed wire fencing may be used in locations where appropriate to

prevent cattle from crossing the southern border of the United States. DHS

10
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 12 of 65

commits to using wildlife-friendly alternative infrastructure that permits any

endangered or threatened species listed under the Endangered Species Act

(“ESA-listed species”) that is known to be present near the areas listed in

Paragraph 6 to pass over or under the infrastructure.

d. DHS agrees to keep the passages open for an initial period of two years

subject to the conditions set forth in Paragraph 7. After two years have

elapsed, DHS will re-evaluate the status of the passages and their operating

conditions in consultation with Plaintiffs.

e. After two years have elapsed, DHS agrees not to expend its fiscal year 2020,

2021, 2022, or 2023 barrier system appropriations2 to install bollard fencing

or equivalent fencing in the passages listed in Paragraph 6 unless and until

DHS completes an environmental planning process, including compliance

with the National Environmental Policy Act (NEPA), the Endangered Species

Act (ESA), the National Historic Preservation Act (NHPA), and any other

statute or regulation that is applicable to the proposed construction, makes any

requisite findings or conclusions, and complies with the obligations that

would be required by law for the proposed construction activity to proceed.

DHS’s NEPA analysis will examine a reasonable range of alternatives to the

proposed action and analyze the potential direct and cumulative impacts of the

proposed action and alternatives, including potential impacts to species not

2
See Department of Homeland Security Appropriations Act, 2020, Pub L. No. 116-93, Div. D, §
209, 133 Stat. 2317, 2512 (2019); Department of Homeland Security Appropriations Act, 2021,
Pub L. No. 116-260, Div. F, § 210, 134 Stat. 1182, 1456-57 (2020); Department of Homeland
Security Appropriations Act, 2022, Pub. L. No. 117-103, Div. D, 136 Stat. 49, 312-348 (2022);
Department of Homeland Security Appropriations Act, 2023, Pub. L. No. 117-328, Div. F, 136
Stat. 4459, 4725-4759 (2022).
11
Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 13 of 65
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 14 of 65

5 San Cochise, Mexican

Bernardino AZ gray wolf,
National jaguar,
Wildlife black bear
Refuge Black
Draw
6 San Cochise, Mexican
Bernardino AZ gray wolf,
National jaguar,
Wildlife black bear
Refuge Hay
Hollow
7 Chihuahuan Doña Mexican
Desert Ana, NM gray wolf,
Wildlife Chihuahuan
Corridor - pronghorn
Doña Ana
West
8 Chihuahuan Doña Mexican
Desert Ana, NM gray wolf,
Wildlife Chihuahuan
Corridor - pronghorn
Doña Ana
East

9. DHS’s agreement to open the stormwater gates listed above on a full-time basis is

subject to the following conditions:

a. DHS reserves the right to close the gates if exigent circumstances or border

security operations warrant temporary closure;

b. In the event the gates are closed, DHS agrees to notify the State of California,

the State of New Mexico, Sierra Club, and Southern Border Communities

within 48 hours of the closure, including the reason for the closure. During

the period of any closure, DHS agrees to provide the State of California, the

State of New Mexico, Sierra Club, and Southern Border Communities

Coalition with periodic status reports and, when such information is available,

the anticipated date for re-opening the gates. DHS agrees to provide notice of

any closure for a period of two years from the date the passages are opened on

13
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 15 of 65

a full-time basis. The parties agree to discuss renewal of the notice

requirement as part of the re-evaluation process described in Paragraph 9(d) &

(e).

c. DHS reserves the right to place alternative forms of wildlife-friendly

infrastructure near the gates and install barrier system attributes near the gates

to detect unauthorized entry into the United States. Razor wire fencing will

not be utilized as an alternative form of infrastructure near the passages.

Barbed wire fencing may be used in locations where appropriate to prevent

cattle from crossing the southern border of the United States. DHS commits

to using wildlife-friendly alternative infrastructure that permits any ESA-listed

species that is known to be present near the areas listed in Paragraph 8 to pass

over or under the infrastructure.

d. DHS agrees to keep the gates open on a full-time basis for an initial period of

two years subject to the conditions set forth in Paragraph 9. After two years

have elapsed, DHS will re-evaluate the status of the gates and their operating

conditions in consultation with the State of California, the State of New

Mexico, Sierra Club, and Southern Border Communities Coalition.

e. After two years have elapsed, DHS agrees not to expend its fiscal year 2020,

2021, 2022, or 2023 barrier system appropriations3 to close the gates listed in

Paragraph 8 on a permanent basis unless and until DHS completes an

environmental planning process, including compliance with the National

Environmental Policy Act (NEPA), the Endangered Species Act (ESA), the

National Historic Preservation Act (NHPA), and any other statute or

3
See supra note 2.
14
Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 16 of 65
Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 17 of 65
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 18 of 65

the charts in Paragraphs 10 and 11 using (a) money transferred pursuant to § 8005 of the

Department of Defense Appropriations Act of 2019 and 2020, and undertaken pursuant to § 284;

and (b) fiscal year 2015–2019 military construction funds made available pursuant to § 2808.

DHS also agrees not to fund construction of bollard-style barrier fencing or similar fencing that

precludes the transit of large mammals at the approximate locations listed in the charts in

Paragraphs 10 and 11 using DHS’s fiscal years 2020, 2021, 2022, or 2023 barrier system

appropriations as provided by the Department of Homeland Security Appropriations Act, 2020,

Pub L. No. 116-93, Div. D, § 209, 133 Stat. 2317, 2512 (2019) and the Department of Homeland

Security Appropriations Act, 2021, Pub L. No. 116-260, Div. F, § 210, 134 Stat. 1182, 1456-57

(2020); the Department of Homeland Security Appropriations Act, 2022, Pub. L. No. 117-103,

Div. D, 136 Stat. 49, 312-348 (2022); and the Department of Homeland Security Appropriations

Act, 2023, Pub. L. No. 117-328, Div. F, 136 Stat. 4459, 4725-4759 (2022).

13. Defendants’ agreement not to construct bollard-style barrier fencing or similar

fencing at the approximate locations listed in the charts in Paragraphs 10 and 11 using the

sources of funds listed in Paragraph 12 is subject to the following conditions:

a. DHS reserves the right to install gates at the locations listed in the charts in

Paragraph 10 that would allow for closure if exigent circumstances or border

security operations warrant temporary closure of the passages;

b. In the event the gates at the locations listed in the chart in Paragraph 10 are

closed, DHS agrees to notify the State of California, the State of New Mexico,

Sierra Club, and Southern Border Communities Coalition within 48 hours of

the closure, including the reason for the closure. During the period of any

closure, DHS agrees to provide the State of California, the State of New

Mexico, Sierra Club, and Southern Border Communities Coalition with

17
Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 19 of 65

periodic status reports and, when such information is available, the anticipated

date for re-opening of the gates. DHS agrees to provide notice of any closure

for a period of two years from the effective date of this agreement. The

parties agree to discuss renewal of the notice requirement as part of the re-

evaluation process described in Paragraph 13(e) & (f).

c. DHS reserves the right to place alternative forms of wildlife-friendly

infrastructure at the locations listed in the charts in Paragraphs 10 and 11, and

install barrier system attributes at those locations to detect unauthorized entry

into the United States.

d. Razor wire fencing will not be utilized as an alternative form of infrastructure

at the locations listed in the charts in Paragraphs 10 and 11. Barbed wire

fencing may be used in locations where appropriate to prevent cattle from

crossing the southern border of the United States. DHS commits to using

wildlife-friendly alternative infrastructure that permits any ESA-listed species

that is known to be present near the areas listed in Paragraphs 10 or 11 to pass

over or under the infrastructure.

e. DHS agrees not to construct bollard-style barrier fencing or similar fencing

that precludes the transit of large mammals at the approximate locations listed

in the charts in Paragraphs 10 and 11 using the sources of funds listed in

Paragraph 12 for two years subject to the conditions set forth in Paragraph 13.

After two years have elapsed, DHS will re-evaluate the status of the locations

in Paragraphs 10 and 11 and their operating conditions in consultation with

the State of California, the State of New Mexico, Sierra Club, and Southern

Border Communities Coalition.

18
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 20 of 65

f. After two years have elapsed, DHS agrees not to expend its fiscal year 2020,

2021, 2022, or 2023 barrier system appropriations4 to construct bollard-style

barrier fencing or similar fencing that precludes the transit of large mammals

at the approximate locations listed in the charts in Paragraphs 10 and 11

unless and until DHS completes an environmental planning process, including

compliance with the National Environmental Policy Act (NEPA), the

Endangered Species Act (ESA), the National Historic Preservation Act

(NHPA), and any other statute or regulation that is applicable to the proposed

construction, makes any requisite findings or conclusions, and complies with

the obligations that would be required by law for the proposed construction

activity to proceed. DHS’s NEPA analysis will examine a reasonable range of

alternatives to the proposed action and analyze the potential direct and

cumulative impacts of the proposed action and alternatives, including

potential impacts to species not listed as threated or endangered under the

ESA. If, for the purpose of achieving NEPA compliance, DHS prepares an

Environmental Assessment (EA) and the EA reveals significant environmental

impacts from the proposed action, DHS will prepare an Environmental Impact

Statement (EIS). Following completion of the EIS, should DHS decide to

proceed with the proposed action, DHS agrees to take all reasonable steps to

mitigate the significant impacts identified in the EIS.

Mitigating Impacts of Border Barrier Lighting

14. As of the date of this agreement, DHS represents that the Yuma 1 border

infrastructure project is the only § 284 and § 2808 Project Area that has fully functional barrier

4
See supra note 2.
19
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 21 of 65

lighting. DHS represents that the Yuma 1 project involved construction of approximately 5

miles of replacement pedestrian fencing near the Andrade Port of Entry in Yuma County,

Arizona, pursuant to § 284, using transferred fiscal year 2019 DoD funds. DHS represents that

the lights in the Yuma 1 project area are currently turned on during the night. To mitigate the

environmental impacts from the lighting, DHS represents that the light fixtures use light emitting

diodes (LEDs) and agrees that the lights will be operated so that they focus on the patrol road

and avoid upward light spillage to the maximum extent practicable.

15. DHS will complete an environmental planning process, including actions

consistent with applicable provisions of the National Environmental Policy Act, the Endangered

Species Act, and the National Historic Preservation Act, for any § 284 and § 2808 Project Areas

where new lighting is proposed to be installed. DHS agrees not to install or utilize any additional

border barrier lighting in any § 284 and § 2808 Project Area (beyond lighting already installed

and utilized at Yuma 1) unless and until DHS completes the environmental planning process,

makes any requisite findings or conclusions, and complies with the obligations that would be

required by law for the proposed installation of lighting to proceed. The environmental planning

process(es) will identify the areas where barrier system lighting is proposed to be installed in the

§ 284 and § 2808 Project Areas. In addition to notices provided to the general public, DHS

agrees to separately provide the Sierra Club, Southern Border Communities Coalition, the State

of California and the State of New Mexico with written notice of any proposed barrier system

lighting in the § 284 and § 2808 Project Areas. DHS also agrees that the environmental planning

process(es) will include meaningful opportunities for Plaintiffs to provide comments and input in

advance of installing any additional lighting in any § 284 and § 2808 Project Area. For the areas

in the Yuma 1 project area where lighting is installed as of date of this agreement, DHS agrees to

confer and consult with the United States Fish and Wildlife Service (“USFWS”) about the

20
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 22 of 65

impacts of the Yuma 1 lighting on ESA-listed species. If USFWS determines that the Yuma 1

lights are adversely affecting ESA-listed species, DHS further agrees to modify, remove, or

switch off the existing lighting in the Yuma 1 project area to mitigate such impacts, as

recommended by USFWS.

16. In the event border barrier lighting is installed and utilized in the § 284 and

§ 2808 Project Areas after completion of the environmental planning process described in

Paragraph 15, DHS agrees to fund a study assessing the impact of border barrier lighting within

the § 284 and § 2808 Project Areas where such lighting is installed. The study will include

evaluation of red spectrum lighting or lower temperature lighting to reduce potential impacts to

wildlife. DHS agrees to consult with Plaintiffs and appropriate officials within the U.S.

Department of the Interior in planning the study. The cost of the study shall not exceed

$300,000. Funding for the study shall come exclusively from DHS’s fiscal year 2020 or 2021

barrier system appropriations as provided by the Department of Homeland Security

Appropriations Act, 2020, Pub L. No. 116-93, Div. D, § 209, 133 Stat. 2317, 2512 (2019) and

the Department of Homeland Security Appropriations Act, 2021, Pub L. No. 116-260, Div. F, §

210, 134 Stat. 1182, 1456-57 (2020), subject to the availability of those funds. Defendants

represent that such funding is currently available and that they will take all reasonable steps to

ensure that such funds remain available to comply with this Agreement.

Mitigating Impacts of Road Construction

17. Except as provided in Paragraphs 18 and 19, Defendants agree not to fund

construction of new roads in the § 284 and § 2808 Project Areas using (a) money transferred

pursuant to § 8005 of the Department of Defense Appropriations Act of 2019 and 2020, and

undertaken pursuant to § 284; or (b) fiscal year 2015–2019 military construction funds made

available pursuant to § 2808. DHS also agrees not to fund construction of new roads in the § 284

21
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 23 of 65

and § 2808 Project Areas using DHS’s fiscal years 2020, 2021, 2022, or 2023 barrier system

appropriations as provided by the Department of Homeland Security Appropriations Act, 2020,

Pub L. No. 116-93, Div. D, § 209, 133 Stat. 2317, 2512 (2019) and the Department of Homeland

Security Appropriations Act, 2021, Pub L. No. 116-260, Div. F, § 210, 134 Stat. 1182, 1456-57

(2020); the Department of Homeland Security Appropriations Act, 2022, Pub. L. No. 117-103,

Div. D, 136 Stat. 49, 312-348 (2022); and the Department of Homeland Security Appropriations

Act, 2023, Pub. L. No. 117-328, Div. F, 136 Stat. 4459, 4725-4759 (2022).

18. Nothing in this agreement shall prohibit Defendants from constructing new roads

in the § 284 and § 2808 Project Areas using the funds listed in Paragraph 17 if road construction

is recommended by the responsible federal land management agency where the road construction

would occur. Prior to beginning any road construction using the funds listed in Paragraph 17 in

any § 2808 Project Area, DHS will complete an environmental planning process, including

actions consistent with applicable provisions of the National Environmental Policy Act, the

Endangered Species Act, and the National Historic Preservation Act. The environmental

planning process will include information as to where the road construction is being proposed

and provide opportunities for Plaintiffs to submit comments and provide input. If Defendants

construct new roads in any § 284 Project Area with the funds listed in Paragraph 17, DHS also

agrees to consult with Plaintiffs in advance of any such road construction, including providing

Plaintiffs with information that identifies areas where road construction is planned.

19. Nothing in this agreement shall prohibit Defendants from taking any actions

Defendants deem appropriate to repair or remediate existing roads in the § 284 and § 2808

Project Areas, including narrowing existing roads, flattening berms, grading existing roads, and

addressing water flow issues with existing roads.

22
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 24 of 65

Remediation of Mountain Areas in Luna and Hidalgo Counties, New Mexico

20. In the El Paso B project area in Luna County, New Mexico, there is an

approximate half-mile stretch of the Carrizalillo Hills where construction activity began using

blasting techniques, but no border barrier was built. The GPS coordinates for this location are

approximately 31.784, -107.93.

21. In the Whitewater Mountains of Hidalgo County, New Mexico, there is an

approximate three-mile segment of mountains where construction activity began using blasting

techniques, but no border barrier was built. The GPS coordinates for this location are

approximately 31.33364, -108.6069 to 31.33343, -108.58153.

22. As part of DHS’s Phase 2 remediation work, DHS agrees to undertake the

following activities in the areas described in Paragraphs 20 and 21:

a. DHS agrees to install appropriate safety measures to prevent harm to humans and

wildlife associated with the steep sheer of the rock formations after blasting,

including rock fall netting and fencing as appropriate.

b. DHS agrees to remove invasive species present on and near the cut away

mountainsides and other construction sites in the areas described in Paragraphs 20

and 21. DHS agrees to take appropriate actions to encourage native vegetation

growth in the areas described in Paragraphs 20 and 21, including consultation

with New Mexico and local federal land managers about the most appropriate

measures to address invasive species and encourage native vegetation growth in

the two areas.

Remediation Within the Jacumba Wilderness and Other Measures to Mitigate Impacts to
the Peninsular Bighorn Sheep
23. During DHS’s Phase 2 remediation work in the Jacumba Wilderness area of the

El Centro Border Patrol Sector, DHS agrees to have a biologist monitor in the area during

23
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 25 of 65

periods of active construction or ground-disturbing activity. The biologist monitor shall have the

authority to stop work in the event any Peninsular bighorn sheep come within close proximity to

work activities.

24. As part of DHS’s Phase 2 remediation project work, DHS agrees to address water

drainage problems and incomplete culvert installation adjacent to dirt construction roads in the

El Centro A project area in Skull and Davies Valley, California.

25. As part of DHS’s Phase 2 remediation project work, DHS agrees to repair and

remediate the existing road and surrounding area located in the El Centro A project area in the

Jacumba Wilderness at approximately GPS coordinates of 32.629176N, 115.969088W to

32.629263, 115.967983W, including addressing any drainage issues in this area. DHS agrees to

consult with appropriate officials from the State of California in conducing the repair and

remediation work in this area.

26. As part of DHS’s Phase 2 remediation project work, DHS agrees to remove the

current rock fall mesh fencing in the El Centro A project area in the Jacumba Wilderness to

reduce potential impacts to Peninsular bighorn sheep.

27. As part of DHS’s Phase 2 remediation project work, DHS agrees to remediate the

berms adjacent to the access roads in Skull Valley to improve surface water flow into the

surrounding landscape. This work will include flattening the berms to align with the natural

grading of the area such that surface water can naturally flow without obstruction from the

berms. Any safety or maintenance work on the roads will not block drainage from the nearby

slopes or re-establish berms adjacent to the roadway. DHS agrees to consult with appropriate

officials from the State of California in conducing project work.

28. As part of DHS’s Phase 2 remediation project work, DHS agrees to provide up to

$5,000 for the installation of signs near the wilderness boundary near entrance points into Skull

24
Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 26 of 65
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 27 of 65

31. Defendants agree not to fund construction of bollard-style barrier fencing in the

approximate locations listed in the chart in Paragraph 30 using (a) money transferred pursuant to

§ 8005 of the Department of Defense Appropriations Act of 2019 and 2020, and undertaken

pursuant to § 284; and (b) fiscal year 2015–2019 military construction funds made available

pursuant to § 2808. DHS also agrees not to fund the construction of bollard-style barrier fencing

or vehicle barriers within the gaps identified in the chart in Paragraph 30 using DHS’s fiscal

years 2020, 2021, 2022, or 2023 barrier system appropriations as provided by the Department of

Homeland Security Appropriations Act, 2020, Pub L. No. 116-93, Div. D, § 209, 133 Stat. 2317,

2512 (2019) and the Department of Homeland Security Appropriations Act, 2021, Pub L. No.

116-260, Div. F, § 210, 134 Stat. 1182, 1456-57 (2020); the Department of Homeland Security

Appropriations Act, 2022, Pub. L. No. 117-103, Div. D, 136 Stat. 49, 312-348 (2022); and the

Department of Homeland Security Appropriations Act, 2023, Pub. L. No. 117-328, Div. F, 136

Stat. 4459, 4725-4759 (2022).

32. Defendants’ agreement not to construct bollard-style barrier fencing or similar

fencing at the approximate locations listed in the chart in Paragraph 30 using the sources of funds

listed in Paragraph 31 is subject to the following conditions:

a. DHS reserves the right to place alternative forms of wildlife-friendly

infrastructure at the locations listed in the chart in Paragraph 30, and install barrier

system attributes at the locations in Paragraph 30 to detect unauthorized entry into

the United States.

b. Razor wire fencing will not be utilized as an alternative form of infrastructure at

the locations listed in the charts in Paragraph 30. Barbed wire fencing may be

used in locations where appropriate to prevent cattle from crossing the southern

border of the United States. DHS commits to using wildlife-friendly alternative

26
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 28 of 65

infrastructure that permits any ESA-listed species known to be present near the

areas listed in Paragraph 30, including the Peninsular bighorn sheep, to pass over

or under the infrastructure.

c. DHS agrees not to construct bollard-style barrier fencing or similar fencing that

precludes the transit of large mammals, including the Peninsular bighorn sheep, at

the approximate locations listed in the chart in Paragraph 30 using the sources of

funds listed in Paragraph 31 for two years subject to the conditions set forth in

Paragraph 32. After two years have elapsed, DHS may re-evaluate the status of

the locations in Paragraph 30 and their operating conditions in consultation with

the State of California, Sierra Club, and Southern Border Communities Coalition.

d. After two years have elapsed, DHS agrees not to expend its fiscal year 2020,

2021, 2022, or 2023 barrier system appropriations5 to construct bollard-style

barrier fencing or similar fencing that precludes the transit of large mammals,

including the Peninsular bighorn sheep, at the approximate locations listed in the

chart in Paragraph 30 unless and until DHS completes an environmental planning

process, including compliance with the National Environmental Policy Act

(NEPA), the Endangered Species Act (ESA), the National Historic Preservation

Act (NHPA), and any other statute or regulation that is applicable to the proposed

construction, makes any requisite findings or conclusions, and complies with the

obligations that would be required by law for the proposed construction activity to

proceed. DHS’s NEPA analysis will examine a reasonable range of alternatives

to the proposed action and analyze the potential direct and cumulative impacts of

the proposed action and alternatives, including potential impacts to species not

5
See supra note 2.
27
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 29 of 65

listed as threated or endangered under the ESA. If, for the purpose of achieving

NEPA compliance, DHS prepares an Environmental Assessment (EA) and the EA

reveals significant environmental impacts from the proposed action, DHS will

prepare an Environmental Impact Statement (EIS). Following completion of the

EIS, should DHS decide to proceed with the proposed action, DHS agrees to take

all reasonable steps to mitigate the significant impacts identified in the EIS.

Invasive Species Management

33. As part of DHS’s Phase 2 remediation project work, DHS will take appropriate

actions to remove and manage invasive plant species in the § 284 and § 2808 Project Areas.

DHS will either hire contractors or rely on the Department of the Interior to implement such

actions. DHS agrees that the Sierra Club, the Southern Border Communities Coalition,

appropriate wildlife agencies from California and New Mexico, and local federal land managers,

shall be afforded meaningful opportunities to provide input concerning the most appropriate

measures to implement to remove and manage invasive plants in the § 284 and § 2808 Project

Areas, including consideration of reseeding areas to encourage native vegetation growth.

Remove Blasting Caps Near Border Monument #38

34. As part of DHS’s Phase 2 remediation project work, DHS will remove inert

blasting caps and detonation cords near Border Monument Marker 38 in New Mexico.

Remediate Encroachment on New Mexico’s Land

35. Defendants acknowledge that a border wall contractor (SLSCO) placed

equipment and materials on New Mexico’s property in excess of its contractual requirements.

The U.S. Army Corps of Engineers notified SLSCO that this action exceeded SLSCO’s

authorized work limits (i.e., jobsite boundaries) and directed them to cease those operations and

restore the site at their own expense. The U.S. Army Corps of Engineers also directed SLSCO to

28
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 30 of 65

perform the required clean-up and make-safe activities as part of SLSCO’s contractual obligation

to demobilize and leave the construction sites in a safe state.

36. In the event the actions undertaken by SLSCO as part of its contractual

obligations to close out its work responsibilities are insufficient to address New Mexico’s

concerns, DHS will consult with New Mexico as part of its Phase 2 remediation work to evaluate

whether additional actions are needed. If there is agreement between DHS and New Mexico that

that SLSCO’s actions have not sufficiently remediated the encroachment on New Mexico’s

property, DHS will address any additional remediation work as part of DHS’s Phase 2

remediation projects. Such remediation shall include, at a minimum, remediation equivalent to

that done at § 284 and § 2808 Project Sites as detailed in Paragraph 28.

37. For any future DHS border barrier system construction project and any

remediation conducted pursuant to Paragraph 36, DHS agrees to seek and obtain New Mexico’s

consent to access New Mexico’s land or to store construction materials and equipment on New

Mexico’s land.

Decommission Water Wells

38. As part of DHS’s Phase 2 remediation project work, DHS agrees to seal and

decommission any water wells on federal land that that were established for construction of the §

284 and § 2808 projects, but are no longer needed to facilitate DHS’s operation and maintenance

of border barrier system infrastructure. DHS agrees to consult with appropriate officials from

the State of California, the State of New Mexico, Sierra Club and the Southern Border

Communities Coalition regarding the identification of wells for potential closure that are no

longer needed to facilitate DHS’s operation and maintenance of border barrier system

infrastructure.

29
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 31 of 65

Decommission Temporary Construction Roads

39. As part of DHS’s Phase 2 remediation project work, DHS will decommission

temporary access roads used for ingress and egress of construction equipment and materials in

the § 284 and § 2808 Project Areas. Roads necessary for U.S. Border Patrol operational duties

or to access border barrier system infrastructure, such as the border patrol roads immediately

adjacent to the barrier, will remain open.

Stabilization and Erosion Control of Slopes

40. As part of DHS’s Phase 2 remediation project work, DHS agrees to implement

appropriate stabilization and erosion control measures on slopes impacted by construction in the

§ 284 and § 2808 Project Areas. DHS will consult with local federal land managers regarding

the recommended methods to use for stabilization and erosion control (e.g., coir logs, straw

wattles) based on information specific to the impacted areas.

Installation and Repair of Cattle Guards and Livestock Fencing

41. As part of DHS’s Phase 2 remediation project work, DHS will repair or install

cattleguards and livestock fencing where appropriate in the § 284 and § 2808 Project Areas.

Repair and replacement of cattleguards and livestock fencing may include use of barbed wire.

DHS commits not to use fencing that would preclude the passage of any ESA-listed species that

is known to be present near the area of the proposed fencing to pass under or over the fencing.

Improve Water Flow in Channels

42. As part of DHS’s Phase 2 remediation project work, DHS will remove in-channel

obstructions in the § 284 or § 2808 Project Areas that impede water flows. DHS will consider

alterations to in-channel hydrology and erosion control design to improve water flow in the §

284 or § 2808 Project Areas, such as removal of rip rap or concrete, on a location-by-location

basis. Any decisions by DHS to alter the water flow plans in the § 284 or § 2808 Project Areas

30
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 32 of 65

will be made in consultation with local federal land managers and hydrology experts after

evaluation of specific areas. The State of California, the State of New Mexico, Sierra Club, and

Southern Border Communities Coalition shall have a meaningful opportunity to consult with

DHS about channel water flow projects as provided in Paragraph 56.

Improve Water Drainage

43. As part of DHS’s Phase 2 remediation project work, DHS agrees to install,

complete, or repair appropriate water drainage infrastructure (e.g., culverts) in the § 284 and §

2808 Project Areas to improve water flow. Decisions about implementation of specific water

drainage methods and techniques in the § 284 and § 2808 Project Areas will be made by DHS in

consultation with local federal land managers and hydrology experts. The State of California,

the State of New Mexico, Sierra Club, and Southern Border Communities Coalition shall have a

meaningful opportunity to consult with DHS about water drainage projects as provided in

Paragraph 56.

Improve Surface Water Flow Near Roads

44. As part of DHS’s Phase 2 remediation project work, DHS agrees to improve

surface water flow near roads in § 284 and § 2808 Project Areas to avoid damage to the natural

surroundings. Implementation of specific methods and techniques to improve surface water flow

in the § 284 and § 2808 Project Areas will be made by DHS in consultation with local federal

land managers and hydrology experts. The State of California, the State of New Mexico, Sierra

Club, and Southern Border Communities Coalition shall have a meaningful opportunity to

consult with DHS about surface water flow projects near roads as provided in Paragraph 56.

Cap Bollards and Pipes

45. To the extent there are remaining bollards and pipes that need to be capped after

the U.S. Army Corps of Engineers and its contractors complete the Phase 1 demobilization work,

31
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 33 of 65

DHS will agree to cap remaining bollards and pipes where necessary to prevent injuries to

wildlife as part of its Phase 2 remediation project work in the § 284 and § 2808 Project Areas.

Backfill Open Trenches

46. To the extent there are remaining open trenches after the U.S. Army Corps of

Engineers and its contractors complete the Phase 1 demobilization work, DHS will appropriately

fill any open trenches as part of its Phase 2 remediation project work in the § 284 and § 2808

Project Areas.

Remediate Impacts to the Arizona Trail Head

47. As part of DHS’s Phase 2 remediation project work, Defendants agree to consult

with Sierra Club and Southern Border Communities Coalition about proposed projects to

remediate the impacts of border barrier construction near border monument 102 and the southern

end of Arizona National Scenic Trail. Consultation will include DHS providing Sierra Club and

Southern Border Communities Coalition with a meaningful opportunity to submit proposed

remediation project ideas for this area. DHS further agrees to provide Sierra Club and Southern

Border Communities Coalition with any proposed remediation plans it develops for this area

prior to implementing those plans. Sierra Club and Southern Border Communities Coalition

shall have a meaningful opportunity to provide comments and input prior to execution of any

remediation plan for this area.

Funding for Phase 3 Environmental Mitigation Projects

48. DHS agrees to allocate $45 million for Phase 3 environmental mitigation projects

to offset or mitigate the impacts of border barrier construction in the § 284 and § 2808 Project

Areas, subject to the availability of funds. Funding for Phase 3 environmental mitigation

projects shall come exclusively from DHS’s fiscal year 2020 or 2021 barrier system

appropriations as provided by the Department of Homeland Security Appropriations Act, 2020,

32
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 34 of 65

Pub L. No. 116-93, Div. D, § 209, 133 Stat. 2317, 2512 (2019) and the Department of Homeland

Security Appropriations Act, 2021, Pub L. No. 116-260, Div. F, § 210, 134 Stat. 1182, 1456-57

(2020), subject to the availability of those funds. Defendants represent that such funding is

currently available and that they will take all reasonable steps to ensure that such funds remain

available to comply with this Agreement. Funding for specific Phase 3 environmental mitigation

projects shall be allocated as set forth in paragraphs 49-55.

Proctor Valley / Village 14 Purchase

49. DHS agrees to make a one-time payment to the State of California in the amount

of $25 million for the sole purpose of purchasing the Otay Ranch Village 14 property and

Planning Areas 16 and 19 (referred to collectively as “Village 14”) located in the Proctor Valley

of California6, subject to the availability of funds. DHS will make the one-time payment to the

State of California, or an escrow agent designated by the State of California, no later than

November 1, 2023. Village 14 is approximately 1,291 acres and is located between the San

Diego National Wildlife Refuge, managed by the U.S. Fish and Wildlife Service, and the Rancho

Jamul Ecological Reserve, managed by the California Department of Fish and Wildlife. The

State of California agrees that the $25 million payment from DHS shall be used solely and

exclusively for the purchase of Village 14. The State of California agrees that, upon the State’s

acquisition of Village 14, the property shall be placed in conservation status under the

management of the California Department of Fish and Wildlife.

50. The State of California further agrees that, in the event the State of California is

unable to acquire ownership of the Village 14 property after DHS has sent the one-time $25

6
The San Diego County Assessor Parcel Numbers comprising the Village 14 are: 598-
010-02-00; 598-020-04-00; 598-020-06-00; 598-021-02-00; 598-070-07-00; 598-070-09-00;
597-140-05-00; 597-150-07-00; 597-150-08-00; 597-150-12-00; 597-150-03-00; 597-150-13-00;
597-140-04-00; 597-020-06-00; 597-020-10-00; 597-190-23-00.
33
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 35 of 65

million payment, the State of California shall: (a) notify DHS of its inability to acquire

ownership of the Village 14 property by no later than April 15, 2024; and (b) refund the $25

million to DHS by no later than May 15, 2024, through an electronic funds transfer or other

appropriate means.

51. In the event the State of California refunds the $25 million to DHS pursuant to

this agreement, DHS agrees to allocate the $25 million to other Phase 3 environmental

remediation projects located within the State of California to offset or mitigate the impacts of

border barrier construction in the § 284 and § 2808 Project Areas within California.

52. DHS agrees to consult with appropriate officials from the State of California,

Sierra Club, Southern Border Communities Coalition, and within the U.S. Department of the

Interior, including the Carlsbad Office of the U.S. Fish and Wildlife Service (collectively “Phase

3 California Consultants”), to identify appropriate Phase 3 environmental mitigation projects to

offset or mitigate the impacts of border barrier construction in the § 284 and § 2808 Project

Areas within California. DHS will provide the Phase 3 California Consultants with a meaningful

opportunity to submit proposed mitigation project ideas or locations, including consideration of

land acquisitions for conservation purposes in the Proctor Valley / Lower Otay Lakes area. DHS

agrees not to oppose allocating any portion of the $25 million to a Phase 3 mitigation project in

California that is recommended by the U.S. Department of the Interior, provided the proposed

project is reasonably designed to offset or mitigate the impacts of border barrier construction in

the § 284 and § 2808 Project Areas within California, which include, but are not limited to,

impacts to the following species or their habitat: Peninsular bighorn sheep; coastal California

gnatcatcher; Quino checkerspot butterfly, Riverside fairy shrimp; San Diego fairy shrimp;

California burrowing owl, and the flat-tailed horned lizard. DHS further agrees to provide the

Phase 3 California Consultants with any proposed plans for Phase 3 mitigation projects prior to

34
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 36 of 65

implementing those plans. The Phase 3 California Consultants shall have a meaningful

opportunity to provide comments and input prior to execution of any Phase 3 mitigation project

in the State of California.

Monitoring of Endangered and At-Risk Species

53. As part of its Phase 3 environmental mitigation work, DHS agrees to fund studies

assessing the impacts of border barrier construction in the § 284 and § 2808 Project Areas on the

Peninsular bighorn sheep, Sonoran desert pronghorn, Mexican gray wolf, jaguar, and ocelot.

The cost of the monitoring studies of these species shall not exceed $1,100,000, of which

$500,000 shall be allocated to an existing study of Peninsular bighorn sheep in California

administered by the California Department of Fish and Wildlife. Funding for the studies shall

come exclusively from DHS’s fiscal year 2020 or 2021 barrier system appropriations as provided

by the Department of Homeland Security Appropriations Act, 2020, Pub L. No. 116-93, Div. D,

§ 209, 133 Stat. 2317, 2512 (2019) and the Department of Homeland Security Appropriations

Act, 2021, Pub L. No. 116-260, Div. F, § 210, 134 Stat. 1182, 1456-57 (2020), subject to the

availability of those funds. Defendants represent that such funding is currently available and that

they will take all reasonable steps to ensure that such funds remain available to comply with this

Agreement. The studies relating to the Sonoran desert pronghorn, Mexican gray wolf, jaguar,

and ocelot will be conducted by sources procured or contracted by DHS with relevant experience

and expertise for these types of studies, and include consideration of radio or satellite collaring.

DHS agrees to consult with Sierra Club, Southern Border Communities Coalition, appropriate

officials from California and New Mexico wildlife agencies, appropriate officials within the U.S.

Department of the Interior, and non-governmental organizations performing similar studies of

these species (collectively “Wildlife Study Consultants”) about the implementation and

execution of these studies. Consultation will include DHS providing the Wildlife Study

35
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 37 of 65

Consultants with a meaningful opportunity to submit proposed plans and suggestions regarding

the scope and design of any study. DHS further agrees to provide the Wildlife Study Consultants

with proposed study plan(s) prior to implementation. The Wildlife Study Consultants shall have

a meaningful opportunity to provide comments and input on the proposed study plan(s) prior to

the start of any study. The studies will be made available to the public upon completion. With

respect to the existing study of the Peninsular bighorn sheep, DHS agrees to make a one-time

payment in the amount of $500,000, subject to the availability of funds, to the State of California

by no later than November 1, 2023, for the sole purpose of funding the California Department of

Fish and Wildlife’s continued study of Peninsular bighorn sheep. The California Department of

Fish and Wildlife agrees provide the data from the study of the Peninsular bighorn sheep to the

U.S. Fish and Wildlife Service, including digital data, annually by January 31 of each year as

required by Native Endangered Species Recovery Permit ES-163017-2.

Other Phase 3 Mitigation Projects

54. In addition to the Phase 3 funding allocations described in paragraphs 48-53, DHS

agrees to allocate $18.9 million to other environmental mitigation projects that offset or mitigate

the impacts of border barrier construction in the § 284 and § 2808 Project Areas.

55. DHS agrees to consult with Sierra Club, Southern Border Communities Coalition,

appropriate officials from California and New Mexico wildlife agencies and appropriate officials

within the U.S. Department of the Interior (collectively “Phase 3 Mitigation Consultants”) to

identify appropriate environmental mitigation projects to undertake with the funding discussed in

Paragraph 54. DHS will provide the Phase 3 Mitigation Consultants with a meaningful

opportunity to submit proposed mitigation project ideas or locations. DHS agrees not to oppose

allocating any portion of the $18.9 million set forth in Paragraph 54 to a Phase 3 mitigation

project that is recommended by the U.S. Department of the Interior, provided the proposed

36
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 38 of 65

project offsets or mitigates the impacts of border barrier construction in the § 284 and § 2808

Project Areas. DHS further agrees to provide the Phase 3 Mitigation Consultants with any

proposed plans for Phase 3 mitigation projects prior to implementing those plans. The Phase 3

Mitigation Consultants shall have a meaningful opportunity to provide comments and input prior

to execution of any Phase 3 mitigation project. Such projects shall, to the extent possible and

subject to the consultation described in this paragraph, be selected and designed to offset or

mitigate the impacts of border barrier construction across the § 284 and § 2808 Project Areas

rather than focus on one or a few Project Areas.

Consultation with Plaintiffs About Remediation and Mitigation Projects

56. DHS agrees to arrange bi-monthly video conferences or telephone calls with

Sierra Club, Southern Border Communities Coalition, and appropriate officials from California

and New Mexico to provide progress reports about Phase 2 and Phase 3 remediation and

mitigation projects in the § 284 and § 2808 Project Areas. DHS will provide descriptions of the

work that is underway in the § 284 and § 2808 Project Areas, anticipated timelines for work

expected to begin in the future, and respond to requests, questions, and input about the ongoing

or upcoming remediation work. In advance of each conference, DHS will provide updates and

responses to any questions or inputs from previous conferences in writing, in order to facilitate

meaningful consultation.

Availability of Appropriations

57. In accordance with 31 U.S.C § 1341, 41 U.S.C. § 6301, and Federal law,

Defendants’ responsibility under this agreement is contingent upon the availability of

appropriated funds. Defendants represent that such funding is currently available and that they

will take all reasonable steps to ensure that such funds remain available to comply with this

37
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 39 of 65

Agreement. However, nothing in this this Agreement may be considered as implying that

Congress will at a later date appropriate funds sufficient to meet any deficiencies.

58. In the event that Defendants are unable to comply with their responsibilities due

to a lack of appropriated funds, Defendants must notify Plaintiffs promptly. Plaintiffs shall

retain the right to reinstate proceedings pursuant to paragraph 73 of this agreement.

Dismissal of Claims

59. Within 10 calendar days of the effective date of this Agreement, Plaintiffs will

dismiss with prejudice the Lawsuits by having counsel file a Motion to Dismiss with Prejudice

pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure. The Parties agree that any

disputes relating to compliance with the terms of this Agreement shall be governed by Paragraph

73 of this Agreement.

No Admission of Liability

60. This Agreement has been entered into by the Parties solely for the purposes of

resolving disputed claims related to border barrier construction funded by (1) money transferred

pursuant to section 8005 of the Department of Defense Appropriations Act of 2019 and 2020,

and undertaken pursuant to 10 U.S.C. § 284; and (2) fiscal year 2015–2019 military construction

funds made available pursuant to 10 U.S.C. § 2808, without further protracted legal proceedings

and avoiding the expense and risk of further litigation. Defendants deny liability as to each of

the claims, motions, petitions, and requests that were raised, or that could have been raised, in

the Lawsuits. This Agreement does not constitute, and may not be construed as, a determination

or an admission of a violation of any constitutional provision, statute, law, rule, regulation,

policy, or contract by the Defendants. Furthermore, none of the terms of this Agreement may be

offered or received in evidence or in any way referred to in any civil, criminal, or administrative

38
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 40 of 65

action or proceeding other than proceedings permitted by law, if any, that may be necessary to

consummate or enforce this Agreement.

Release and Discharge

61. Plaintiffs, for themselves and their administrators, heirs, representatives,

successors, or assigns, fully and forever waive, release and discharge the Defendants and their

components, agents, employees and former employees, both in their official and their individual

capacities, and the United States from any and all claims, demands, and causes of actions of

every kind, nature or description, whether for monetary or equitable relief, and whether currently

known or unknown, that Plaintiffs may have had, may now have, or may hereafter have arisen

out of or in connection with border barrier construction funded by (1) money transferred

pursuant to section 8005 of the Department Defense Appropriations Act of 2019 and 2020, and

undertaken pursuant to 10 U.S.C. § 284; and (2) fiscal year 2015–2019 military construction

funds made available pursuant to 10 U.S.C. § 2808. This release shall not apply to (1) any

claims Plaintiffs may assert against border barrier construction projects funded by other sources

of funds, including funds appropriated by Congress to DHS, or (2) any dispute related to

obligations set forth in this Agreement.

Covenants Not to Sue or Commence Further Proceedings

62. Plaintiffs hereby covenant that they will not commence against the Defendants

their components, agents, employees or former employees, either in their official or their

individual capacities, or the United States any action, claim, suit, or administrative proceeding on

account of any claim or cause of action that has been released or discharged by this Agreement,

except as otherwise set forth in Paragraph 73 of this Agreement.

Rule of Construction

63. This Agreement shall be considered a jointly drafted agreement and shall not be

constructed against any party as the drafter.

39
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 41 of 65

Integration

64. This Agreement and its Exhibits constitute the entire agreement and

understanding between the Parties entered into in good faith, and no statement, representation,

remark, agreement, or understanding, in oral or written form, that is not contained in this

Agreement shall be enforced, recognized, or used to interpret this Agreement or its Exhibits.

The Parties agree that any prior or contemporaneous representations or understandings not

explicitly contained in this written Agreement, whether written or oral, are of no further legal or

equitable force or effect.

Severability

65. The provisions of this Agreement are severable. Should any provision of this

Agreement other than the provisions at paragraphs 49-52, for any reason, be deemed or held

invalid or unenforceable, in whole or in part, by a court of law, said determination shall not

affect any other provision of this Agreement. If the provisions at paragraphs 49-52 are, for any

reason, deemed or held invalid or unenforceable, in whole or in part, by a court of law,

California reserves the right to exercise the terms set forth in paragraph 73 of this agreement.

No Third Party Rights

66. This Agreement is not intended to create, and does not create, any third-party

beneficiary rights or any other kind of right or privilege for any person, group, or entity.

No Prior Assignment of Rights and Interests

67. Plaintiffs represent and warrant that they are the sole and lawful owners of all

rights, titles, and interests in all claims and matters which they purport to release herein, and that

they have not heretofore assigned or transferred, attempted to assign or transfer, or purported to

assign or transfer any claim or matter released herein.

40
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 42 of 65

Full Authority to Sign

68. The undersigned representatives of each party certify that they are fully

authorized by the party or parties they represent to execute the Agreement on behalf of himself

or herself, or on behalf of the party or entity on whose behalf he or she signs.

Execution in Counterparts

69. This Agreement may be executed and delivered in counterparts. Each

counterpart, when executed, shall be considered one and the same instrument, which shall

comprise the Agreement, which takes effect on the effective date of this Agreement.

Modification and Amendment

70. This Agreement cannot be modified or amended except through a written

instrument that specifically refers to this Agreement and that is signed by the Parties or their

counsel. No provision of this Agreement may be waived or altered except through a written

waiver or amendment signed by the Parties or their counsel acting on their behalf.

Binding Successors

71. This Agreement shall be binding upon and inure to the benefit of the Parties and

their respective heirs, executors, successors, assigns and personal representatives, including any

persons, entities, departments or agencies succeeding to the interests or obligations of the Parties.

Attorneys’ Fees & Costs

72. The Parties agree that each party shall bear its own costs, expenses, and attorneys’

fees associated with litigating the Lawsuits.

Dispute Resolution

73. Plaintiffs may allege a breach of the terms and conditions of this Settlement

Agreement only in the manner described as follows:

41
Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 43 of 65

a. Plaintiffs may elect to file a motion pursuant to Fed. R. Civ. P. 60(b)(6) seeking

relief from the dismissal of the Lawsuits pursuant to Paragraph 59 of this

Settlement Agreement.

b. Prior to filing any such motion, the parties shall meet and confer in an attempt to

resolve the dispute without the need for judicial intervention. As part of the meet

and confer process, counsel for Plaintiffs shall submit written notice alleging a

breach of this Settlement Agreement to counsel for Defendants. Such notice shall

specify precisely the basis for the alleged breach, the provision(s) of this

Agreement that allegedly has been breached, the facts and circumstances

supporting such claim, and whether relief will be sought under Fed. R. Civ. P.

60(b)(6). Plaintiffs shall not inform the Court of its allegation(s) at that time.

However, if Plaintiffs believe irreparable injury may occur absent immediate

action (“in Emergency Circumstances”) and if Defendants decline to preserve the

status quo upon notice, Plaintiffs may immediately initiate proceedings before the

court to preserve the status quo, provided the parties meet and confer before

initiating any such proceedings.

c. The notice of any alleged breach of this Settlement Agreement by Defendants

must be submitted within sixty (60) days after Plaintiffs have, or should have had,

knowledge of any alleged breach. If Defendants fail to notify Plaintiffs of facts

giving rise to a claim of breach of this Agreement during a regular conference as

set forth in Paragraph 56, Plaintiffs shall not be deemed to have actual or

constructive knowledge of such breach. The notice of any alleged breach shall

accordingly not be operative unless submitted to Defendants within sixty (60)

days after Plaintiffs have, or should have had, knowledge of the alleged breach.

42
Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 44 of 65

Any and all assertions of breach shall be forever waived if not asserted within the

applicable limitations period.

d. Defendants shall have a period of forty-five (45) days after the receipt of such

notice to take appropriate action to resolve the alleged claim. However, as noted

above in Paragraph 73(b), Plaintiffs may initiate court proceedings prior to

expiration of Defendants’ 45-day period for response in Emergency

Circumstances. In the event of any notice of breach, if requested to do so,

Plaintiffs shall provide to Defendants any information and materials available to

Plaintiffs that support the violation alleged in the notice.

e. If any assertion of breach by Plaintiffs is not resolved after consultation between

the Parties' counsel within the forty-five (45) day period, or if, prior to the

expiration of such forty-five (45) day period, counsel for Defendants advise

counsel for Plaintiffs that no further action will be taken by Defendants, Plaintiffs

may seek relief from the Court as set forth in Fed. R. Civ. P. 60(b)(6). The 45-

day period will not apply in Emergency Circumstances as set forth in this

Paragraph.

f. Defendants’ consent to the filing of a motion pursuant to Fed. R. Civ. P. 60(b)(6)

shall not be deemed to waive any available defenses to the substance of such

motion, including without limitation any and all jurisdictional defenses and any

right or authority to contend that no breach of this Settlement Agreement has

occurred, and Defendants otherwise reserve all available defenses to such motion,

including without limitation any and all jurisdictional defenses and any right or

authority to contend that no breach of this Settlement Agreement has occurred.

Defendants’ consent is not required for Plaintiffs to initiate court proceedings

43
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 45 of 65

under Fed. R. Civ. P. 60(b)(6), provided Plaintiffs have met and conferred as set

forth in this Paragraph.

g. Notwithstanding any motion filed pursuant to Fed. R. Civ. P. 60(b)(6), the Parties

may continue to meet and confer in a good-faith attempt to resolve their dispute.

h. This Settlement Agreement does not foreclose Plaintiffs from bringing any other

measure to allege a breach by Defendants, but Defendants reserve the right to

oppose such relief on any available ground, including without limitation any and

all jurisdictional defenses and any right or authority to contend that no breach of

this Settlement Agreement has occurred.

i. Plaintiffs agree, however, that they will seek relief through the mechanisms

defined in this section prior to seeking relief through any other measure and shall

only seek relief through other measures should the Court deny a motion made by

Plaintiffs pursuant to Fed. R. Civ. P. 60(b)(6) concerning the alleged breach for

which Plaintiffs seek enforcement through other measures. This Settlement

Agreement shall not be construed as Defendants conceding that any particular

pleading or action by Plaintiffs is available.

Effective Date

74. The effective date of this Agreement will be the date on which it is executed by

all the undersigned Parties. The Parties further agree that signature by electronic means shall

have the same effect for all purposes as an ink-signed original agreement.

44
Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 46 of 65
Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 47 of 65
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 48 of 65

STATE OF CONNECTICUT
WILLIAM TONG
ATTORNEY GENERAL

By: ____________________

JOSHUA PERRY
Solicitor General

Connecticut Office of the Attorney General

165 Capitol Ave
Hartford, CT 06106
Tel: (860) 808-5372
Fax: (860) 808-5387
Joshua.Perry@ct.gov
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 49 of 65

STATE OF DELAWARE
KATHLEEN JENNINGS
ATTORNEY GENERAL

By: ____________________

CHRISTIAN DOUGLAS WRIGHT

Deputy Attorney General

Delaware Department of Justice

820 N. French Street
Wilmington, DE 19801
Tel: (302) 683-8880
Christian.Wright@delaware.gov
Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 50 of 65
Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 51 of 65
Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 52 of 65
Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 53 of 65
Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 54 of 65
Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 55 of 65
Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 56 of 65
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 57 of 65

AARON D. FORD
Attorney General

By: /s/ Heidi Parry Stern

Heidi Parry Stern (Bar. No. 8873)
Solicitor General
Office of the Nevada Attorney General
555 E. Washington Ave., Ste. 3900
Las Vegas, NV 89101
HStern@ag.nv.gov
Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 58 of 65
Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 59 of 65
Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 60 of 65
Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 61 of 65
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 62 of 65

STATE OF RHODE ISLAND

PETER F. NERONHA
ATTORNEY GENERAL

By: ________________

KEITH D. HOFFMANN
Special Assistant Attorney General

Rhode Island Office of the Attorney General

150 South Main Street
Providence, RI 02903
Tel: (401) 274-4400
Fax: (401) 222-3016
khoffmann@riag.ri.gov
 Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 63 of 65

STATE OF VERMONT
CHARITY R. CLARK
ATTORNEY GENERAL

By: ____________________

BENJAMIN D. BATTLES
Assistant Attorney General

Vermont Attorney General’s Office

109 State Street
Montpelier, VT 05609
Tel: (802) 793-8537
benjamin.battles@vermont.gov
Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 64 of 65
Case 4:19-cv-00892-HSG Document 372-1 Filed 07/17/23 Page 65 of 65