patrol effectively seizing control over two thirds of novice one hundred international butterfly center and excluding the other from an issues that are presented including whether the district court erred in dismissing or th amendment seizure claim for failure state a claim by relying on open fields search doctrine and the border patrol's patrol with already whether the district court erred in dismissing the due process claims and right as an on right just compensation claim viewed as final notwithstanding that it granted leave to amend because nobbut could not read clean these claims on the fact that we're on the facts consistent with the district court's ruling the general approach is that if a district court dismisses the case it's final and if it dismisses the complaint without prejudice or with we have to replete it's not final but this court is noted exceptions to that rule in  not in proximity with the border obviously couldn't allege that there was no way to cure the cure i mean it was a similar issue with leaving a lot of facts in your declarations that were not in your complaint about the nature of border deteriorated after that point in time so i think i mean i think it is a question for the court we submit these declarations which were in support of the court's jurisdiction because the government you to have additional th amendment arguments beyond that would answer just the open fields argument well the problem your honor is that there is that the district court dismissed the dismissed  the th amendment claim as a search claim and we pleaded the seizure claim at the district court i mean sorry the supreme court or in this old all cases made it clear that these are two completely different worlds that that search is limitations of the moment to homes and facts and not including non residential real estate it does your head but but that's actually its victim maclean's occupation deprivation the question here is you're the one who said your theory for jurisdiction is that there's nothing you can do to amended to change the nature of the th amendment claim that your th amendment claim is permanent intrusion occupation deprivation you don't have any argument about the impact on any argument on the facts daniel barden you're right minors so what well i mean our position is that the the the that the deprivation of novice interests property interests in the butterfly center and i mean a bar fight center is both an operation a sort of a business operation as well as it's the land that it sits on so i have a question of i mean this is it's a tricky issue about this seizure of property and i understand that you've appeal because you thought that the application of the open fields aspect of th amendment doctrine was ever because that really as as most developed goes to the search aspects of the th amendment rather than the caesar aspect but i wonder is that an issue we need to resolve here because aren't the same interests that you would seek to protect through your th amendment claim also protected through your th amendment claim just hypothetically were we to recognize you adequately pleaded the th amendment claim but not a th time and claim what would you lose in terms of the practical relief that that you're seeking well i mean we have constraint on our significant property interests and this property is we're talking about or the right to exclude people from the property and also the right piece enjoyment of property and did you argue that your complaint i don't mean to complain eliminates some of your trespass rights fairness right now but we're not claiming any violation based on their legitimate patrol and what is the scope i mean so it seems like you and the government are to some extent talking past each other on the scope of patrolling praga you know to you it seems clear that what they're doing is a lot of activity that isn't controlling and i take it that you're you're viewing patrolling as  officers walking back and forth and i think they're viewing patrolling to include rights of way sensors and lights and people walking back and forth is that can you help clarify what your position is on where patrolling leaves off and unauthorized property intrusion picks up patrolling leaves off where the purpose of the government's presence is not  o for the prevention of illegal border crossing and it's not it's it leaves off where they're engaging in activities that are not customary or reasonable and necessary in the language  your purse sentence doesn't there at all because i think the only reason they're interested in building the wall is because they want to prevent illegal border crossing but their own regulation which the vine defines patrolling says what's customary or reasonable great wall of china the only joins us has been trying so well if the wall means barriers different types of barriers i'm sorry you know all means different types of barriers yes that is a pretty common tool of the border patrol uses to police the border to patrol the border and so the question is whether what's customary necessary for purposes of this provision as to private property is narrower than say what they would do at the actual you know the actual border crossing themselves well your honor at the border crossing itself it made it's not i'm not aware of any instance where the government and i don't think there's anything in the record about the government using barriers on private property barriers that a public road that's why they haven't built a barrier and you are climbing a ripe th amendment claim can you more concretely identify for us what activities the government undertak thought the declarations where we got the using lot gates and stuff to keep people from going my wrong that's a different thing right because we're going all through falls away with appropriations act limitation but then with the declarations that is fine but now what they're doing is locking gates and preventing our access that's not in the complaint i'm having all this conversation as you said there's nothing you can do to amend your complaint the complaint has the local word guests from substantial portions of the property so they're blocking off from the property and there was some evidence or allegations about lock in replacing your locks with their locks yes what about like what about sensors it just it would be hard so i just i'm trying to know whether it's and i think maybe we're asking two different questions but for me it would be helpful to know as a factual matter whether it's in the complaint or in the declarations what are you who is is in our property intrusions that are not permit by the authority to patrol so one is the exclusion of people from half of the land is there anything else yes another is right before you getting to go to the other i don't see in your complaint the exclusion by the border patrol officers from two thirds of the complaint what it says is it says is if i'm just looking around paragraph just tell me that you have the border all thing but then that's fallen away and then they say you can't lock your gates that doesn't mean you can't go somewhere and then it says there is this campaign of harassment when they temporarily detained us a couple people you could possibly be on paid day thirty five  station themselves i'm not sure how that's different from controlling a certain vast stretches are off limits or merely yaar you know it's interesting there are i mean sometimes they're there for three weeks and we can't go there and then they're gone for a week and then they're back for two days and then are done for another week  to the border patrol has taken it upon themselves to invite these other people we have interference with with not as operations for no legitimate purpose stopping and interrogating staff and on a better fly ask you for concrete you talk about exclusion and i get that there are some concrete allegations about that are there other physical things i mean i know there are pictures in the record about trucks being parked there's allegations about lighting well the lighting is what we're learning is part of the proposed project and but they have i guess actually the short answer is they have not installed leading leading it's not a current problem that we're having we're concerned about lower two thirds of the of the property which you know represented a substantial investment of time and ground on that yet so that it they were stopped right that's not in your complaint that what they were it says that they tore up a lot of shrubs and stuff and i didn't hear in your complaint that that was what they tore up was property that it was so happed had cultivated or created with grant money by the center which would make him that make it in effect oh i don't think it makes an effect but i would say that i think that is a reasonable inference really what that makes  clear i understand what i'm asking is in talking to talk a complaint does talk about widening this room and tearing up a lot of shrubbery and stuff that i hadn't seen a th amendment allegation or facts alleging that i'm doing that they were seizing whether we have a complaint that there is landscaping and i'm saying that it's a reasonable inference that when you have a one hundred acre botanical garden that it's not just you know you're calling your back field in the wild or garden it it's a garden conservation areas do is just conserve natural habitat and sometimes they invest in the habitat and that's what i'm trying to sort out but we're not talking about a conservation area we're talking about a kind of garden as a government concedes reasonable inference asked a quick fact question is is the center right on the border or is it just very close to the border right on the border so that is to say that the south border south end of the butterfly center is the banks of the rio grande mr because i want to change it's ok with my colleagues to the subject for just a nd and ask you to focus on the effect of the new construction couldn't walls their ears rooms and foresman zones artificially which i think is right so am i right that the way i read that is that this only the constitutional claim is that of the right way to think about this case it could be all we need what we can certainly we have is how the government interprets the writer is that part of this case and the bigger part all we have is the language of the appropriations act in your statement about what you think it means if it's there if it means what we think it means next appropriations act well but the next appropriations act would not only have to have a car but have to appropriate money in the next appropriations act for walk instruction correct yes or so so in order to this case not to be moved to not only has to be in new appropriations bill with money without a car but correct that's our how to ride out that that's our interpretation of it isn't but but but just looking at the language of the appropriations bill well the reason i'm qualifying that is because we asked the government when the appropriations act was enacted what their intentions were because the language of the appropriations act rider is not identical to the language that  the secretary used in her and her announcement of the of this project in the end of waiver so we weren't sure if they thought well we're not going to just we're just not going to go to the wall but we're still going to put in a waiting and then enforcement so we've never heard back from them so that remains an element of uncertainty for us i don't know what your position is on this our position is they disagree with that legal interpretation of the case is not made correct correct and at least intellect question is resolved yes and the appropriation acts as they can use funds for pedestrians fencing but the allocation of funds is for both the jester infested fencing and the separate paragraph border security technologies lyceum that's where the action is here if they were pedestrian that what they are doing is border security technologies and not destined fencing and it wouldn't fall within the restriction of the appropriation is that where all the action is here could could change the th amendment analysis your honor i think we have very strong arguments on the merits of the th amendment analysis in this case was absolutely correct and then really not read the botanical gardens or the landscaping is in effect that issue was not raised below not but i think that and i know that's not raise but i'm asking the question of whether the amendment would make any difference and so part of that would be i'm not sure it's my job to sit here and speculate as to whether there's going to have a position on what counts as a tax on property and down people's landscaping that's part of their botanical garden the question it doesn't go enough to say that all happens to be out on a field you still have to answer the question of the stuff that was bulldoze field it was the botanical plants rocks structures there don't you have to don't you have to make that open fields argument addresses quite a list let's back up and this is part of my concern with the factual issues nothing has been bulldozed your honor along the top of the levee there was a license and it was in place and we say this in our brief that license allows the clearing of shrubbery and some things in order to provide sightlines the clearing that has occurred as a kurd under that license there has right and all of that was under done under my understanding is the license it was but i didn't place that there was rejected in two thousand and seventeen that was not associated with us under the license rejected there was a they denied we talk about every friday there was a explain the me i'm looking at the statute yes it says i mean it seems to me the constitutional claims aren't covered by the statute because they don't quote derives from any action taken or any decision made by the secretary connection with the waiver the constitutional claims that's not what their constitutional claims are they don't have anything to do with the weaver so why  environmental laws or any any legal requirement commercially for barriers and roads and if you look at can we talk about the structure of of this of this statute section one of two b and this is going to go up a little bit it talks about barriers and roads and things that are authorized when and this is under section one or two a but under what would you be it says roads lighting cameras sensors barriers fencing in a whole bunch of things that fall under barriers and roads and so what we argued and this is absolutely correct from the president's executive order to the memorandum that was issued by the department to those who were virtual as well as the  there was issued all of these site to authority in the immigration reform and and responsibility act that is the authority by which these activities are occurring so the fact that there are that the secretary contemplated putting in lighting and doing some of the things excavation fill the roads all of that was under the authority of this immigration reform act that's where this authority comes from ok that is separate from section  reasoned that if you're not challenging the waiver or things that flow from the waiver but but things as in this case that preceded the arising from language could would not would seem to waiver when it she did it has nothing to do with education but has to do with the simple fact that when contracting isn't real the secretary issues waivers right at the time that we're able to perceive that the government's able to proceed with contemplated projects so yes all of the things that they've alleged all the activities that have been occurring on their property that are tied to their constitutional claims are all directly related to hillary under the rules or who you know there's a lot of case law in the supreme court in here which says that jurisdiction stripping statutes have to be really narrow especially when it comes to constitutional cases and if congress had meant this to say what you said you think of those that would have said would have said a rising problem it would have said in relation to your argument is that all of the actions of that are arising from actions undertaken by the secretary in this case if if the court concluded that that's not the case and when you find that can you be can you explain to me for a minute why they didn't state of th amendment to process claim here i mean they own the center they allege that the border patrol deprived of the possessory interest in it without any procedures why isn't that a due process they had knowledge shiner this is where we get back to the patrol statute even before any of these activities occurred the border patrol has been patrolling the border in this area for a very long time they in their aware of the fact that the border patrol has entered their property very they need to allege and this is the case law that we've we've talked about her brief they need to have what process they are to do and if they have knowledge of a statute that provides the government with complaint or in declarations because i do think there's a bit of a disagreement about right that the regulation talks about customary reasonable and necessary activities we've cited a couple cases to suggest that  patrol put sensors in places and they remove those sensors or they put them in other places they're not permanently located there the enforcement of the border this is well recognized that under the th amendment the balance the sharply in favor of the government the government has an interest at all in patrolling to have for example cars troll people's cars parked across a private road on private property border patrol entered the property and cut blocks because it needed to get onto the property it put on its own marks and the next day gave the keys to the butterflies as asian so you know so you're not saying that that i think it would be reasonable to suggest that  you cited for process and i'm just trying to start because you know you from the government can inform us on how this is sort of used in practice and whether that's what are the kinds of access rights that that is that you all think that's meant for i would assume that if the government were interested in perhaps a permanent easement then that might be something that they would be able to seat under under those provisions but  not occurred here for the th amendment and if if the government had wanted to let's say exercise forfeiture authority over the butterfly far as the property and nation it's about whether you you know done any process before you attach and cut and intrude in those kind of the but the reason i was asking about the forfeiture is and i think it may be that this isn't that vividly presented in this case because they're not claiming for example that they didn't you know an act of pursuit of a warrant or you know there wasn't kind of that kind of process and it's not been used for this evidence of crime and so maybe that you know senior rate so let's let's back up one second there i think if we make this point they are conflating the nature of their property with the dr in itself so yes there is in open fields doctrine and there's plenty of case on what is considered to be an open fields doctrine and i will admit that plenty of cases of talk about that as a search doctrine i think my argument is more of a special nature and one that it hears to the supreme court's precedent in describing the nature of the property and the property interest that the th amendment  the line of cases that it's like houses papers are facts open fields you're not one of those things this goes back to blackstone you fall outside the curtilage or and open field so that line of cases is different from the open fields doctrine which which i can see ha goes but assume we are a foot outside the curtilage is your view that the open fields john trim as is so far excluded as being court and older cases and more dealing with technology doesn't factor in at all the nature of the government intrusion on private property my view your honor has been articulated by oliver has her jones done these are several cases the supreme court has in fact held that the member does not protect open flame of the nature and maybe the issue here is there are arguments either not search that maybe the dance here but to be clear the president for a very long time said that people don't have a private interest in their movement on public roads but then when technology was used the g p s monitoring in the jones case to collect way more information about people supreme court said hang on that's different and so the question is is what's being done here turned up they were dug up those are privacy interest hotel rooms telephone moves and then at the same time they're saying well no privacy plays no role here but those are privacy builded i mean there's two i view it as two separate things there's probably many cases and there's a privacy and there cases whe you might well have a situation where they say the case from it's a th circuit where they were turning up the earth right well yes you may in fact have a privacy interest in the ground underneath your open field that's totally different than what's going on here and presenters have not been impacted as to the reason of government intrusion and this is important whether you call this a search whether you call this a series or this is the border this is the border of the international border with mexico there's a number of cases that we've cited from a supreme court in other circuits recognizing the sovereign interest of the united states were attacked its border from your legal crossings and so to the extent that some of these intrusions have occurred even occurred under session or authority and they were reasonable under the th amendment one last question just would be sure government's position is that the appropriations rider us the need the endangered species and all construction related claims right we agree with the assessment that they've put forth which is there are no current activities contemplated the government is not doing anything right now on their property and there are no clear plans that's a little clever in the way that you ordered them in the brief i mean they are claiming that there are a lot of current intrusions and i mean yes and so i want to unpack this a little bit the appropriations writer talks about just reinventing the language of this actually says  within twenty five miles of border and it may well include the installation of sensors that are not permanent that are taken up so that's a separate authority but i want you to focus on the appropriations act yes if it draws a distinction between the funds appropriated for pedestrian fencing and the funds appropriated for border security technology yes and to the extent that there are claims involved are you willing to state the position of the united states that none of the intrusions identified either in their complaint or the declarations fall under the category of border security technologies i looked at their complaint and their complaint talks about border wall construction their complaint talks about preparation activities especially with the construction we talked about why negroes it talks about sensors returns about locking gates you need to have an imminent threat  not right because congress an act of the appropriations act which the association views as a complete provision of construction of a wall and they view that as a prohibition they think that you're violating it because you as you're demonstrating by the way you're answering questions here today you view it as a placing a much narrower prohibition perhaps with legal support as tech mot is pointing out because it's only proven in construction not border security activity said the  activities are still c b p his prerogative then there is an issue joined about whether their patrol activities or whether in fact there needs to be some kind of easement or some kind of pre entry process in order to  and that has not been prohibited under the language of that so we would have to resolve that statutory question before we can just herman with the cases well i think you need to resolve under article three whether they have alleged and are alleging an imminent threat of found is based on the argument you're doing here where someone says here's what we think a statute means and if we win we're taking care of it and the government comes in and says we are not agreeing with your interpretation of the statute we are not agreeing with your interpretation of the statute but nevertheless you should declare it moot without resolving that statutory construction question i've never seen a case i'm relying on clapper i mean clapper tells you your honor that you have to have an immediate injury they sought an injunction that's that's the relief they saw based on injunction from the district court that would prevent the construction of word wall and they view the preparations i did oh i'm sorry there's a question of what you mean by construction of border while they say they they want they want they want they've got concerns about more than just the border wall is destiny and fencing and all of these things are vague terms that's one thing but if what is meant by the border wall is could be fences could be barriers could be other forms of border security technologies then it's not ok i'm going off of their own nation when you read their complaint are these are not the kinds of concerns very well it's not just the well i think it raises other things but it's if you came forward with the jurisdictional argument the government did and it just struck me at least i can only speak for myself quite odd to see the government come in and make an relief that they're seeking the relief that they're seeking use an injunction preventing the border fencing wall we'll call it they cannot receive that relief because it's no longer available to them it's done it's been looted the appropriations bill there's no construction is going to private property they say that we're not doing anything there's no imminence of harm there's no clapper tells you that they have the only way they can use they can get this injunction to prevent the government from going forward the way to see if they have  would conclude would argue don't fall within the appropriations limitation but they may be stopped right now for all kinds of reasons but if the government is not representing that it has no intention of raising them any time any of these activities whether called border security technologies or protesting fencing in the foreseeable future then that's a different that's an important statement by the government that would weigh in precluding us removed from building any infrastructure on your property right now that would put us into a government from the governor we don't understand the government's position it is that they look at your complaint or your brief and they say you say that in acting you were i that's what the plan is themselves say it does and the it's moved under the appropriations bill that's the position of it i think i think it's a little bit tough because they have authority to do we need process for that either you and the for the things that are violates absolutely sutton's of due process have to stop and the things that are currently ongoing include include the border patrol continuing to be on the property doing things that are apparently not patrolling and i will and i'm going to be more specific about what are they doing on the property yesterday yesterday there were two agents on the property the day they were sitting in a car we don't know i'm sorry they were not regions there were two individuals in plainclothes sitting in a car if we don't know what they're doing but they're on butterfly property they're just sitting there but a flashlight or call the police the police caught up with these people and it turns out these people or contractors of the government so you know i'm not as property doing we don't know what we don't think they're patrolling because we think that's a work of trolls job and so that is just one instance that we continue to have instances of no other staff and guest being told they it's contractor nobody in the past we have not had notice when they come on to patrol not always sometimes they've come onto the property because butterfly centers called them and said we think that there's an illegal work rossing happening and the border patrol has come on in those circumstances but no they have not always given us knows when they come up with nothing else but your position is that these people are likely structuring contractors not not border patrol and contractors and that's that was what the that's where the police told us when we have roads across that are you know we let people drive on for any reason at all that there are two different things there are roads that are publicly accessible because the it's a it's a it's a it's a public it's a it's a  make one point that's a good dream i think the donovan case your honor that we cited in our brief shows that the supreme court is gone beyond its concern for the you know the four categories katz says they're not a talismanic answer to every  every th amendment question donovan it's the it's a agency has the power to inspect surface mining or if they're open they're right on the surface of the ground and the court finds that that inspection is reasonable amendment it doesn't find the th amendment doesn't apply it finds that it does apply and it's reasonable and there's no way to reconcile donovan with the four categories except to say you know that level of interest