U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:19−cv−00408−TNM

TYPE−E

CENTER FOR BIOLOGICAL DIVERSITY et al v. TRUMP et al Assigned to: Judge Trevor N. McFadden Cases: 1:19−cv−00404−TNM
1:19−cv−00969−TNM
1:20−cv−01230−TNM
1:19−cv−02085−KBJ Cause: 28:1331 Fed. Question
Plaintiff

Date Filed: 02/16/2019 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

CENTER FOR BIOLOGICAL DIVERSITY

represented by Anthony T. Eliseuson ANIMAL LEGAL DEFENSE FUND 150 South Wacker Drive Suite 2400 Chicago, IL 60606 707−795−2533 Email: aeliseuson@aldf.org LEAD ATTORNEY PRO HAC VICE

Brian Paul Segee CENTER FOR BIOLOGICAL DIVERSITY 660 S. Figueroa Street, Suite 1000 Los Angeles, CA 90017 (805) 750−8852 Email: bsegee@biologicaldiversity.org LEAD ATTORNEY PRO HAC VICE

Anchun Jean Su CENTER FOR BIOLOGICAL DIVERSITY 1411 K Street, NW Suite 1300 Washington, DC 20005 415−770−3187 Fax: 510−844−7150 Email: jsu@biologicaldiversity.org ATTORNEY TO BE NOTICED

Jason C. Rylander DEFENDERS OF WILDLIFE 1130 17th Street, NW Washington, DC 20036 (202) 772−3245 Fax: (202) 382−1331 Email: jrylander@defenders.org ATTORNEY TO BE NOTICED

Marc D. Fink CENTER FOR BIOLOGICAL DIVERSITY 209 East 7th Street Duluth, MN 55805 218−464−0539 Email: mfink@biologicaldiversity.org

Plaintiff DEFENDERS OF WILDLIFE
Plaintiff ANIMAL LEGAL DEFENSE FUND

PRO HAC VICE ATTORNEY TO BE NOTICED
Tanya Sanerib CENTER FOR BIOLOGICAL DIVERSITY 2400 80th Street, NW #146 Seattle, WA 98117 (206) 379−7363 Email: tsanerib@biologicaldiversity.org TERMINATED: 04/28/2020
represented by Anthony T. Eliseuson (See above for address) LEAD ATTORNEY PRO HAC VICE
Brian Paul Segee (See above for address) LEAD ATTORNEY PRO HAC VICE
Jason C. Rylander (See above for address) ATTORNEY TO BE NOTICED
Marc D. Fink (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tanya Sanerib (See above for address) TERMINATED: 04/28/2020
represented by Anthony T. Eliseuson (See above for address) LEAD ATTORNEY PRO HAC VICE
Brian Paul Segee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jason C. Rylander (See above for address) ATTORNEY TO BE NOTICED
Marc D. Fink (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tanya Sanerib (See above for address) TERMINATED: 04/28/2020

V. Defendant DONALD J. TRUMP in his official capacity as President of the United States TERMINATED: 04/02/2020
Defendant PATRICK M. SHANAHAN in his official capacity as acting Secretary of Defense
Defendant STEVEN T. MNUCHIN In his official capacity as Secretary of the Department of Treasury TERMINATED: 04/15/2019

represented by Andrew I. Warden U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street NW Washington, DC 20005 (202) 616−5084 Fax: (202) 616−8470 Email: andrew.warden@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leslie Cooper Vigen U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Room 11308 Washington, DC 20005 (202) 305−0727 Fax: (202) 616−8470 Email: leslie.vigen@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Mahoney Burnham U.S. DEPARTMENT OF JUSTICE Civil Division 950 Pennsylvania Avenue, NW Washington, DC 20530 (202) 353−5049 Email: james.burnham@usdoj.gov TERMINATED: 02/04/2020
represented by Andrew I. Warden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leslie Cooper Vigen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Mahoney Burnham (See above for address) TERMINATED: 02/04/2020
represented by Andrew I. Warden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leslie Cooper Vigen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Mahoney Burnham

Defendant KIRSTJEN M. NIELSEN in her official capacity as Homeland Security Secretary TERMINATED: 04/15/2019
Defendant DAVID L. BERNHARDT in his official capacity as Secretary of the Interior
Defendant TODD T. SEMONITE Lieutenant General, in his official capacity as Commander and Chief of Engineers
Defendant KEVIN K. MCALEENAN in his official capacity as acting Homeland Security Secretary

(See above for address) TERMINATED: 02/04/2020
represented by Andrew I. Warden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leslie Cooper Vigen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Mahoney Burnham (See above for address) TERMINATED: 02/04/2020
represented by Andrew I. Warden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leslie Cooper Vigen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Mahoney Burnham (See above for address) TERMINATED: 02/04/2020
represented by Andrew I. Warden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leslie Cooper Vigen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Mahoney Burnham (See above for address) TERMINATED: 02/04/2020
represented by Andrew I. Warden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leslie Cooper Vigen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Mahoney Burnham (See above for address) TERMINATED: 02/04/2020

Amicus ANDY BARR Rep.
Amicus BRENNAN CENTER FOR JUSTICE AT NEW YORK UNIVERSITY SCHOOL OF LAW

represented by Lawrence J. Joseph LAW OFFICE OF LAWRENCE J. JOSEPH 1250 Connecticut Avenue, NW Suite 700−1A Washington, DC 20036 (202) 355−9452 Fax: (202) 318−2254 Email: ljoseph@larryjoseph.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth Goitein BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW 1140 Connecticut Ave. NW Suite 1150 Wasington, DC 20036 (202) 249−7192 Email: goiteine@brennan.law.nyu.edu PRO HAC VICE
Joseph Andrew Boyle BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW 1140 Connecticut Ave. NW Suite 1150 Wasington, DC 20036 (202) 753−5909 Email: boylea@brennan.law.nyu.edu PRO HAC VICE

Date Filed 02/16/2019
02/16/2019 02/16/2019
02/16/2019 02/19/2019 02/19/2019

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief against All Defendants ( Filing fee $ 400 receipt number 0090−5952405), CIVIL COVER SHEET by CENTER FOR BIOLOGICAL DIVERSITY, ANIMAL LEGAL DEFENSE FUND, DEFENDERS OF WILDLIFE, REQUEST FOR SUMMONS TO ISSUE filed by CENTER FOR BIOLOGICAL DIVERSITY, ANIMAL LEGAL DEFENSE FUND, DEFENDERS OF WILDLIFE. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons, # 8 Summons, # 9 Notice of Designation of Related Cases)(Sanerib, Tanya) (Entered: 02/16/2019)
2 LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by ANIMAL LEGAL DEFENSE FUND, CENTER FOR BIOLOGICAL DIVERSITY, DEFENDERS OF WILDLIFE (Sanerib, Tanya) (Entered: 02/16/2019)
3 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Brian Segee, :Firm− Center for Biological Diversity, :Address− 660 S. Figueroa Street, Suite 1000, Los Angeles, CA 90017. Phone No. − (805) 750−8852. Filing fee $ 100, receipt number 0090−5952419. Fee Status: Fee Paid. by ANIMAL LEGAL DEFENSE FUND, CENTER FOR BIOLOGICAL DIVERSITY, DEFENDERS OF WILDLIFE (Attachments: # 1 Declaration)(Sanerib, Tanya) (Entered: 02/16/2019)
4 NOTICE OF RELATED CASE by All Plaintiffs. Case related to Case No. 19−cv−404 and 19−cv−405. (zsb) (Entered: 02/19/2019)
Case Assigned to Judge Trevor N. McFadden. (zsb) (Entered: 02/19/2019)
5 SUMMONS (7) Issued Electronically as to DAVID BERNHARDT, STEVEN MNUCHIN, KIRSTJEN M. NIELSEN, PATRICK M. SHANAHAN, DONALD J. TRUMP, U.S. Attorney and U.S. Attorney General. (Attachments: # 1 Notice and

02/19/2019 02/19/2019 02/20/2019
02/21/2019 02/28/2019 02/28/2019 02/28/2019
03/01/2019 04/02/2019 04/02/2019 04/02/2019 04/09/2019 04/15/2019
04/15/2019

Consent)(zef, ) (Entered: 02/19/2019)
6 STANDING ORDER establishing procedures for cases before Judge Trevor N. McFadden. The parties are ORDERED to read and strictly comply with the directives in the attached order. Signed by Judge Trevor N. McFadden on 2/19/2019. (lctnm3) (Entered: 02/19/2019)
ORDER granting the 3 Motion for Leave to Appear Pro Hac Vice. Attorney Brian Segee shall promptly register for this Court's CM/ECF system. Signed by Judge Trevor N. McFadden on 2/19/2019. (lctnm3) (Entered: 02/19/2019)
7 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Anthony T. Eliseuson, :Firm− Animal Legal Defense Fund, :Address− 150 South Wacker Drive, Suite 2400; Chicago, Illinois 60606. Phone No. − (707) 795−2533. Filing fee $ 100, receipt number 0090−5956275. Fee Status: Fee Paid. by ANIMAL LEGAL DEFENSE FUND, CENTER FOR BIOLOGICAL DIVERSITY, DEFENDERS OF WILDLIFE (Attachments: # 1 Declaration)(Sanerib, Tanya) (Entered: 02/20/2019)
MINUTE ORDER granting the 7 Motion for Leave to Appear Pro Hac Vice. Attorney Anthony T. Eliseuson shall promptly register for this Court's CM/ECF system. Signed by Judge Trevor N. McFadden on 2/21/2019. (lctnm3) Modified on 2/21/2019 to edit event title (hmc). (Entered: 02/21/2019)
8 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 2/27/2019. Answer due for ALL FEDERAL DEFENDANTS by 4/28/2019. (Segee, Brian) (Entered: 02/28/2019)
9 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 02/27/2019. (Segee, Brian) (Entered: 02/28/2019)
10 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DAVID BERNHARDT served on 2/26/2019; STEVEN MNUCHIN served on 2/27/2019; KIRSTJEN M. NIELSEN served on 2/26/2019; PATRICK M. SHANAHAN served on 2/26/2019; DONALD J. TRUMP served on 2/27/2019 (Segee, Brian) (Entered: 02/28/2019)
11 NOTICE of Appearance by Anchun Jean Su on behalf of CENTER FOR BIOLOGICAL DIVERSITY (Su, Anchun) (Entered: 03/01/2019)
12 MOTION to Dismiss by DAVID BERNHARDT, STEVEN MNUCHIN, KIRSTJEN M. NIELSEN, PATRICK M. SHANAHAN, DONALD J. TRUMP (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Vigen, Leslie) (Entered: 04/02/2019)
13 NOTICE of Appearance by Andrew I. Warden on behalf of DAVID BERNHARDT, STEVEN MNUCHIN, KIRSTJEN M. NIELSEN, PATRICK M. SHANAHAN, DONALD J. TRUMP (Warden, Andrew) (Entered: 04/02/2019)
14 NOTICE of Appearance by Leslie Cooper Vigen on behalf of All Defendants (Vigen, Leslie) (Entered: 04/02/2019)
15 MOTION for Leave to File Amicus Memo of Law by Andy Barr (Attachments: # 1 Memorandum in Support Proposed Amicus Brief, # 2 Text of Proposed Order Proposed Order)(Joseph, Lawrence) (Entered: 04/09/2019)
16 AMENDED COMPLAINT (First) against DAVID BERNHARDT, KIRSTJEN M. NIELSEN, PATRICK M. SHANAHAN, DONALD J. TRUMP, TODD T. SEMONITE filed by ANIMAL LEGAL DEFENSE FUND, DEFENDERS OF WILDLIFE, CENTER FOR BIOLOGICAL DIVERSITY. (Attachments: # 1 redline comparision with original complaint)(Segee, Brian) (Entered: 04/15/2019)
17 REQUEST FOR SUMMONS TO ISSUE Lieutenant General Todd T. Semonite, in his official capacity as Commander and Chief Engineer, U.S. Army Corps of Engineers re 16 Amended Complaint, filed by ANIMAL LEGAL DEFENSE FUND, DEFENDERS OF WILDLIFE, CENTER FOR BIOLOGICAL DIVERSITY. Related document: 16 Amended Complaint, filed by DEFENDERS OF WILDLIFE, ANIMAL LEGAL DEFENSE FUND, CENTER FOR BIOLOGICAL DIVERSITY.(Segee, Brian)

04/17/2019 04/18/2019 04/23/2019 04/23/2019
04/23/2019 04/24/2019 04/24/2019 05/07/2019 05/07/2019 05/10/2019 05/14/2019
05/14/2019

(Entered: 04/15/2019)
18 SUMMONS (1) Issued Electronically as to TODD T. SEMONITE. (Attachment: # 1 Notice and Consent) (tth) (Entered: 04/17/2019)
MINUTE ORDER denying the Defendants' 12 Motion to Dismiss as moot. The Plaintiffs have file an Amended Complaint ( 16 ) as permitted by Federal Rule of Civil Procedure 15. Signed by Judge Trevor N. McFadden on 4/18/2019. (lctnm3) (Entered: 04/18/2019)
19 Consent MOTION for Briefing Schedule and to Stay Discovery and Initial Case Management Obligations by DAVID BERNHARDT, KEVIN MCALEENAN, TODD T. SEMONITE, PATRICK M. SHANAHAN, DONALD J. TRUMP (Attachments: # 1 Text of Proposed Order)(Vigen, Leslie). Added MOTION to Stay on 4/26/2019 (tth). (Entered: 04/23/2019)
MINUTE ORDER: Upon consideration of the Defendants' 19 Consent Motion, the following briefing schedule is hereby ordered: the Defendants shall file a renewed Motion to Dismiss on or before May 10, 2019. The Plaintiffs shall file their Opposition on or before May 31, 2019. The Defendants shall file their Reply on or before June 12, 2019. It is further ordered that the parties' discovery and initial case management obligations, including the requirements of Local Civil Rule 16.3 and Federal Rules of Civil Procedure 16 and 26 shall be stayed during the pendency of the Defendants' Motion to Dismiss. Signed by Judge Trevor N. McFadden on 4/23/2019. (lctnm3) (Entered: 04/23/2019)
Set/Reset Deadlines: Defendants' renewed Motion to Dismiss due by 5/10/2019. Plaintiffs' Opposition due by 5/31/2019. Defendants' reply due by 6/12/2019. (hmc) (Entered: 04/23/2019)
MINUTE ORDER granting the 15 Motion for Leave to File. Signed by Judge Trevor N. McFadden on 4/24/2019. (lctnm3) (Entered: 04/24/2019)
20 AMICUS BRIEF by ANDY BARR. (ztd) (Entered: 04/25/2019)
21 Unopposed MOTION for Leave to File Excess Pages by DAVID BERNHARDT, KEVIN K. MCALEENAN, TODD T. SEMONITE, PATRICK M. SHANAHAN, DONALD J. TRUMP (Attachments: # 1 Text of Proposed Order)(Vigen, Leslie) (Entered: 05/07/2019)
MINUTE ORDER: Upon consideration of the Defendants' 21 Unopposed Motion for Leave to File Excess Pages, it is hereby ORDERED that the Defendants may file a motion to dismiss up to, but not exceeding, 55 pages in length. The Plaintiffs may file an opposition to this motion up to, but not exceeding, 55 pages in length. Signed by Judge Trevor N. McFadden on 5/7/2019. (lctnm3) (Entered: 05/07/2019)
22 MOTION to Dismiss Plaintiffs' Amended Complaint by DAVID BERNHARDT, KEVIN K. MCALEENAN, STEVEN MNUCHIN, KIRSTJEN M. NIELSEN, TODD T. SEMONITE, PATRICK M. SHANAHAN, DONALD J. TRUMP (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Warden, Andrew) (Entered: 05/10/2019)
23 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Elizabeth Goitein, :Firm− Brennan Center for Justice, :Address− 1140 Connecticut Ave. NW, Ste. 1150, Washington, D.C. 20036. Phone No. − 202−249−7192. Fax No. − 202−223−2683 Filing fee $ 100, receipt number 0090−6122342. Fee Status: Fee Paid. by BRENNAN CENTER FOR JUSTICE AT NEW YORK UNIVERSITY SCHOOL OF LAW (Attachments: # 1 Declaration of Elizabeth Goitein in Support of Pro Hac Vice Motion, # 2 Text of Proposed Order)(Weiner, Daniel) (Entered: 05/14/2019)
24 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− J. Andrew Boyle, :Firm− Brennan Center for Justice, :Address− 1140 Connecticut Ave. NW, Ste. 1150, Washington, D.C. 20036. Phone No. − 202−753−5909. Fax No. − 202−223−2683 Filing fee $ 100, receipt number 0090−6122458. Fee Status: Fee Paid. by BRENNAN CENTER FOR JUSTICE AT NEW YORK UNIVERSITY SCHOOL OF LAW (Attachments: # 1 Declaration of J. Andrew Boyle in Support of Motion for Admission Pro Hac Vice, # 2 Text of Proposed Order)(Weiner, Daniel) (Entered: 05/14/2019)

05/14/2019 05/16/2019 05/16/2019 05/23/2019 05/23/2019 05/23/2019 05/28/2019 05/29/2019 05/29/2019 05/31/2019
06/06/2019
06/06/2019 06/07/2019 06/17/2019 07/11/2019 08/06/2019

MINUTE ORDER granting the 23 and 24 Motions for Leave to Appear Pro Hac Vice. Attorneys Elizabeth Goitein and J. Andrew Boyle shall promptly register for this Court's CM/ECF system. Signed by Judge Trevor N. McFadden on 5/14/2019. (lctnm3) (Entered: 05/14/2019)
25 NOTICE of Filing of Second Declaration of Kenneth Rapuano by DAVID BERNHARDT, KEVIN K. MCALEENAN, TODD T. SEMONITE, PATRICK M. SHANAHAN, DONALD J. TRUMP (Attachments: # 1 Declaration Second Declaration of Kenneth Rapuano)(Vigen, Leslie) (Entered: 05/16/2019)
26 NOTICE of Filing of Statement by DAVID BERNHARDT, KEVIN K. MCALEENAN, TODD T. SEMONITE, PATRICK M. SHANAHAN, DONALD J. TRUMP (Attachments: # 1 Exhibit May 13, 2019 Order, # 2 Exhibit Response to May 13, 2019 Order)(Vigen, Leslie) (Entered: 05/16/2019)
27 Unopposed MOTION for Leave to File Memorandum of Law in Support of Defendants as Amicus Curiae by ANDY BARR (Attachments: # 1 Exhibit Proposed Amicus Memo of Law, # 2 Text of Proposed Order proposed order)(Joseph, Lawrence) (Entered: 05/23/2019)
MINUTE ORDER granting the 27 Unopposed Motion for Leave to File an Amicus Brief. Signed by Judge Trevor N. McFadden on 5/23/2019. (lctnm3) (Entered: 05/23/2019)
28 AMICUS BRIEF by ANDY BARR. (tth) (Entered: 05/24/2019)
29 MOTION for Leave to File Amicus Brief by BRENNAN CENTER FOR JUSTICE AT NEW YORK UNIVERSITY SCHOOL OF LAW (Attachments: # 1 Amicus Brief, # 2 Text of Proposed Order)(Goitein, Elizabeth) (Entered: 05/28/2019)
MINUTE ORDER granting the 29 Motion for Leave to File an Amicus Brief. The Clerk of the Court shall extract the Brief, ECF No. 29−1, and file it on the docket. Signed by Judge Trevor N. McFadden on 5/29/2019. (lctnm3) (Entered: 05/29/2019)
30 AMICUS BRIEF by BRENNAN CENTER FOR JUSTICE AT NEW YORK UNIVERSITY SCHOOL OF LAW. (tth) (Entered: 05/30/2019)
31 Memorandum in opposition to re 22 MOTION to Dismiss Plaintiffs' Amended Complaint filed by ANIMAL LEGAL DEFENSE FUND, CENTER FOR BIOLOGICAL DIVERSITY, DEFENDERS OF WILDLIFE. (Attachments: # 1 Declaration of Brian Segee, # 2 Declaration of Kara Clauser (with map attachments), # 3 Declaration Standing Declarations)(Segee, Brian) (Entered: 05/31/2019)
32 Unopposed MOTION for Extension of Time to File Response/Reply as to 22 MOTION to Dismiss Plaintiffs' Amended Complaint by DAVID BERNHARDT, KEVIN K. MCALEENAN, TODD T. SEMONITE, PATRICK M. SHANAHAN, DONALD J. TRUMP (Attachments: # 1 Text of Proposed Order)(Vigen, Leslie) (Entered: 06/06/2019)
MINUTE ORDER: Upon consideration of the Defendants' 32 Unopposed Motion, it is hereby ORDERED that the Defendants shall file any Reply in support of their Motion to Dismiss on or before June 17, 2019. Signed by Judge Trevor N. McFadden on 6/6/2019. (lctnm3) (Entered: 06/06/2019)
Set/Reset Deadlines: Defendants' reply in support of their Motion to Dismiss due by 6/17/2019. (hmc) (Entered: 06/07/2019)
33 REPLY to opposition to motion re 22 MOTION to Dismiss Plaintiffs' Amended Complaint filed by DAVID BERNHARDT, KEVIN K. MCALEENAN, TODD T. SEMONITE, PATRICK M. SHANAHAN, DONALD J. TRUMP. (Vigen, Leslie) (Entered: 06/17/2019)
34 Joint STATUS REPORT by DAVID BERNHARDT, KEVIN K. MCALEENAN, TODD T. SEMONITE, PATRICK M. SHANAHAN, DONALD J. TRUMP. (Vigen, Leslie) (Entered: 07/11/2019)
35 NOTICE OF RELATED CASE by DAVID BERNHARDT, KEVIN K. MCALEENAN, TODD T. SEMONITE, PATRICK M. SHANAHAN, DONALD J. TRUMP. Case related to Case No. 19cv2085. (Warden, Andrew) (Entered:

08/27/2019 09/03/2019 09/05/2019 09/10/2019 09/10/2019
09/10/2019 09/16/2019 09/18/2019 09/18/2019 09/30/2019 10/02/2019

08/06/2019)
36 NOTICE Of Decision by the Department of Defense to Authorize Additional Border Barrier Projects Pursuant to 10 U.S.C. § 284 by DAVID BERNHARDT, KEVIN K. MCALEENAN, TODD T. SEMONITE, PATRICK M. SHANAHAN, DONALD J. TRUMP (Attachments: # 1 Exhibit, # 2 Exhibit)(Warden, Andrew) (Entered: 08/27/2019)
37 NOTICE of Decision by the Department of Defense to Authorize Border Barrier Projects Pursuant to 10 U.S.C. § 2808 by DAVID BERNHARDT, KEVIN K. MCALEENAN, TODD T. SEMONITE, PATRICK M. SHANAHAN, DONALD J. TRUMP (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Warden, Andrew) (Entered: 09/03/2019)
38 NOTICE Supplement to Notice of Decision by the Department of Defense to Authorize Border Barrier Projects Pursuant to 10 U.S.C. § 2808 by DAVID BERNHARDT, KEVIN K. MCALEENAN, TODD T. SEMONITE, PATRICK M. SHANAHAN, DONALD J. TRUMP re 37 Notice (Other), (Attachments: # 1 Exhibit)(Warden, Andrew) (Entered: 09/05/2019)
39 Joint MOTION for Briefing Schedule to Address 10 U.S.C. 2808 by DAVID BERNHARDT, KEVIN K. MCALEENAN, TODD T. SEMONITE, PATRICK M. SHANAHAN, DONALD J. TRUMP (Attachments: # 1 Text of Proposed Order)(Vigen, Leslie) (Entered: 09/10/2019)
MINUTE ORDER granting 39 Motion for Briefing Schedule. The parties shall file supplemental briefs to address whether or how the Secretary of Defenses decision to authorize certain border barrier projects pursuant to 10 U.S.C. § 2808 affects the parties' arguments made in support of or in opposition to Defendants' Motion to Dismiss Plaintiffs' Amended Complaint. It is furthered ORDERED that the parties shall adhere to the following briefing schedule and page limitations: Defendants' Supplemental Brief, not to exceed 10 pages, shall be filed on or before September 18, 2019. Plaintiffs' response to Defendants' Supplemental Brief, not to exceed 10 pages, shall be filed on or before October 2, 2019. Defendants' Reply, not to exceed 5 pages, shall be filed on or before October 9, 2019. Signed by Judge Trevor N. McFadden on 9/10/19. (lctnm1) Modified on 9/12/2019 to edit event title (hmc). (Entered: 09/10/2019)
Set/Reset Deadlines: Defendants' Supplemental Brief due by 9/18/2019. Plaintiffs' response to Defendants' Supplemental Brief due by 10/2/2019. Defendants' Reply due by 10/9/2019. (hmc) (Entered: 09/10/2019)
40 NOTICE Supplemental Notice Regarding Decision by the Department of Defense to Authorize Additional Border Barrier Projects Pursuant to 10 U.S.C. § 284 by DAVID BERNHARDT, KEVIN K. MCALEENAN, TODD T. SEMONITE, PATRICK M. SHANAHAN, DONALD J. TRUMP re 36 Notice (Other), (Attachments: # 1 Exhibit)(Warden, Andrew) (Entered: 09/16/2019)
41 SUPPLEMENTAL MEMORANDUM to re 22 MOTION to Dismiss Plaintiffs' Amended Complaint to Address 10 U.S.C. 2808 filed by DAVID BERNHARDT, KEVIN K. MCALEENAN, TODD T. SEMONITE, PATRICK M. SHANAHAN, DONALD J. TRUMP. (Vigen, Leslie) (Entered: 09/18/2019)
42 NOTICE OF SUPPLEMENTAL AUTHORITY by DAVID BERNHARDT, KEVIN K. MCALEENAN, TODD T. SEMONITE, PATRICK M. SHANAHAN, DONALD J. TRUMP (Attachments: # 1 Exhibit U.S. Government Accountability Office Opinion B−330862)(Vigen, Leslie) (Entered: 09/18/2019)
43 NOTICE Regarding Funding of Border Barrier Projects Pursuant to 10 U.S.C. § 284 in Fiscal Year 2020 by DAVID BERNHARDT, KEVIN K. MCALEENAN, TODD T. SEMONITE, PATRICK M. SHANAHAN, DONALD J. TRUMP (Attachments: # 1 Exhibit)(Warden, Andrew) (Entered: 09/30/2019)
44 SUPPLEMENTAL MEMORANDUM to re 22 MOTION to Dismiss Plaintiffs' Amended Complaint filed by ANIMAL LEGAL DEFENSE FUND, CENTER FOR BIOLOGICAL DIVERSITY, DEFENDERS OF WILDLIFE. (Attachments: # 1 Declaration (Holslin standing declaration))(Segee, Brian) (Entered: 10/02/2019)

10/09/2019 11/04/2019
11/04/2019 12/12/2019 12/12/2019 12/16/2019
01/06/2020
01/20/2020 01/22/2020 01/27/2020 02/04/2020 02/04/2020 02/13/2020
04/02/2020 04/02/2020

45 REPLY re 41 Supplemental Memorandum, to Address 10 U.S.C. 2808 filed by DAVID BERNHARDT, KEVIN K. MCALEENAN, TODD T. SEMONITE, PATRICK M. SHANAHAN, DONALD J. TRUMP. (Vigen, Leslie) (Entered: 10/09/2019)
MINUTE ORDER. It is hereby ORDERED that the parties shall appear for a joint hearing with Rio Grande International et al. v. Trump et al. (19−cv−00720) on the Defendants' 22 Motion to Dismiss on December 16, 2019, at 10:00 a.m. in Courtroom 2, before Judge Trevor N. McFadden. Signed by Judge Trevor N. McFadden on 11/4/2019. (lctnm1) (Entered: 11/04/2019)
Set/Reset Hearings: Motion Hearing set for 12/16/2019 at 10:00 AM in Courtroom 2 before Judge Trevor N. McFadden. (hmc) (Entered: 11/04/2019)
46 NOTICE of Recent Decisions by DAVID BERNHARDT, KEVIN K. MCALEENAN, TODD T. SEMONITE, PATRICK M. SHANAHAN, DONALD J. TRUMP (Warden, Andrew) (Entered: 12/12/2019)
47 NOTICE of Appearance by James Mahoney Burnham on behalf of All Defendants (Burnham, James) (Entered: 12/12/2019)
Minute Entry for proceedings held before Judge Trevor N. McFadden: Motion Hearing held on 12/16/2019 re 22 MOTION to Dismiss Plaintiffs' Amended Complaint. Matter taken under advisement. Government's Supplemental Briefing due by 1/6/2020. Plaintiff's Opposition due by 1/20/2020. Government's Reply due by 1/27/2020. (Court Reporter: Crystal Pilgrim.) (hmc) (Entered: 12/16/2019)
48 SUPPLEMENTAL MEMORANDUM to re 22 MOTION to Dismiss Plaintiffs' Amended Complaint Addressing Zone of Interests filed by DAVID BERNHARDT, KEVIN K. MCALEENAN, STEVEN T. MNUCHIN, KIRSTJEN M. NIELSEN, TODD T. SEMONITE, PATRICK M. SHANAHAN, DONALD J. TRUMP. (Warden, Andrew) (Entered: 01/06/2020)
49 SUPPLEMENTAL MEMORANDUM to re 22 MOTION to Dismiss Plaintiffs' Amended Complaint Addressing Zone of Interests filed by ANIMAL LEGAL DEFENSE FUND, CENTER FOR BIOLOGICAL DIVERSITY, DEFENDERS OF WILDLIFE. (Segee, Brian) (Entered: 01/20/2020)
50 NOTICE Regarding Section 2808 Construction by DAVID BERNHARDT, KEVIN K. MCALEENAN, TODD T. SEMONITE, PATRICK M. SHANAHAN, DONALD J. TRUMP (Attachments: # 1 Exhibit Second Declaration of Brigadier General Glenn A. Goddard)(Vigen, Leslie) (Entered: 01/22/2020)
51 REPLY in Support of Defendants' Supplemental Memorandum Addressing Zone of Interests filed by DAVID BERNHARDT, KEVIN K. MCALEENAN, STEVEN T. MNUCHIN, TODD T. SEMONITE, PATRICK M. SHANAHAN, DONALD J. TRUMP. (Warden, Andrew) (Entered: 01/27/2020)
52 MOTION to Withdraw as Attorney by DAVID BERNHARDT, KEVIN K. MCALEENAN, STEVEN T. MNUCHIN, KIRSTJEN M. NIELSEN, TODD T. SEMONITE, PATRICK M. SHANAHAN, DONALD J. TRUMP (Burnham, James) (Entered: 02/04/2020)
MINUTE ORDER granting the 52 Motion to Withdraw as Attorney. James Burnham is hereby granted leave to withdraw as counsel for Defendants. SO ORDERED. Signed by Judge Trevor N. McFadden on 2/4/2020. (lctnm1) (Entered: 02/04/2020)
53 NOTICE Regarding Authorization of Additional Border Barrier Projects Pursuant to 10 U.S.C. § 284 by DAVID BERNHARDT, KEVIN K. MCALEENAN, TODD T. SEMONITE, PATRICK M. SHANAHAN, DONALD J. TRUMP (Attachments: # 1 Declaration Seventh Rapuano Declaration, # 2 Declaration Second Stiglich Declaration)(Warden, Andrew) (Entered: 02/13/2020)
54 MEMORANDUM OPINION re Defendants' 22 Motion to Dismiss. Signed by Judge Trevor N. McFadden on 4/2/2020. (lctnm1) (Entered: 04/02/2020)
55 ORDER. For the reasons stated in 54 Memorandum Opinion, the Defendants' 22 Motion to Dismiss is GRANTED in part and DENIED in part. See attached Order for details. Signed by Judge Trevor N. McFadden on 4/2/2020. (lctnm1) (Entered:

04/02/2020
04/03/2020 04/06/2020 04/10/2020 04/10/2020
04/13/2020 04/16/2020 04/27/2020 04/27/2020 04/28/2020 04/29/2020 04/29/2020

04/02/2020)
VACATED PURSUANT TO MINUTE ORDER ENTERED ON 4/10/2020.....MINUTE ORDER. In light of the Court's 55 Order granting in part and denying in part Defendants' 22 Motion to Dismiss, Defendants are ORDERED to file an Answer to Plaintiffs' First Amended Complaint on or before April 16, 2020. SO ORDERED. Signed by Judge Trevor N. McFadden on 4/2/2020. (lctnm1) Modified on 4/13/2020 (hmc). (Entered: 04/02/2020)
Set/Reset Deadlines: Defendants' Answer to Plaintiffs' First Amended Complaint due by 4/16/2020. (zhmc) (Entered: 04/03/2020)
56 NOTICE of Appearance by Jason C. Rylander on behalf of ANIMAL LEGAL DEFENSE FUND, CENTER FOR BIOLOGICAL DIVERSITY, DEFENDERS OF WILDLIFE (Rylander, Jason) (Entered: 04/06/2020)
57 Joint MOTION for Briefing Schedule for Motions For Summary Judgment by DAVID L. BERNHARDT, KEVIN K. MCALEENAN, TODD T. SEMONITE, PATRICK M. SHANAHAN (Attachments: # 1 Text of Proposed Order)(Warden, Andrew) (Entered: 04/10/2020)
MINUTE ORDER. Upon consideration of the parties' 57 Joint Motion for Briefing Schedule for Motions for Summary Judgment, it is hereby ORDERED that the briefing schedule for Cross−Motions for Summary Judgment shall be as follows: Defendants shall file the Administrative Record on or before April 16, 2020; Plaintiffs' Motion for Summary Judgment shall be filed on or before May 29, 2020; Defendants' Opposition and Cross−Motion for Summary Judgment shall be filed on or before June 26, 2020; Plaintiffs' Reply in Support of their Motion and Opposition to Defendants Cross−Motion shall be filed on or before July 17, 2020; Defendants' Reply in Support of their Cross−Motion shall be filed on or before August 7, 2020. It is further ORDERED that the Court's April 2, 2020 Minute Order is VACATED and Defendants are not required to answer Plaintiffs' amended complaint. SO ORDERED. Signed by Judge Trevor N. McFadden on 4/10/2020. (lctnm1) (Entered: 04/10/2020)
Set/Reset Deadlines: Defendant's Administrative Record due by 4/16/2020. Plaintiffs' Motion for Summary Judgment due by 5/29/2020. Defendants' Opposition and Cross−Motion due by 6/26/2020. Plaintiffs' Reply and Opposition due by 7/17/2020. Defendants' Reply due by 8/7/2020. (hmc) (Entered: 04/13/2020)
58 ADMINISTRATIVE RECORD for Fiscal Year 2019 Border Barrier Projects Undertaken Pursuant to 10 U.S.C. § 284 and 10 U.S.C § 2808 by DAVID L. BERNHARDT, KEVIN K. MCALEENAN, TODD T. SEMONITE, PATRICK M. SHANAHAN. (Attachments: # 1 Exhibit, # 2 Exhibit)(Warden, Andrew) (Entered: 04/16/2020)
59 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Marc D. Fink, Center for Biological Diversity Filing fee $ 100, receipt number ADCDC−7063542. Fee Status: Fee Paid. by CENTER FOR BIOLOGICAL DIVERSITY (Attachments: # 1 Declaration of Marc D. Fink in Support of Pro Hac Vice Motion)(Su, Anchun) (Entered: 04/27/2020)
MINUTE ORDER granting 59 Motion for Leave to Appear Pro Hac Vice. Counsel should register for e−filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. Signed by Judge Trevor N. McFadden on 4/27/2020. (lctnm1) (Entered: 04/27/2020)
60 ENTERED IN ERROR.....NOTICE OF SUBSTITUTION OF COUNSEL by Brian Paul Segee on behalf of All Plaintiffs Substituting for attorney Tanya Sanerib (Segee, Brian) Modified on 4/29/2020 (zeg). (Entered: 04/28/2020)
NOTICE OF CORRECTED DOCKET ENTRY: re 60 Substitution of Counsel was entered in error and counsel was instructed to refile with correct attorney on said pleading. (eg) (Entered: 04/29/2020)
61 NOTICE OF SUBSTITUTION OF COUNSEL by Marc D. Fink on behalf of ANIMAL LEGAL DEFENSE FUND, CENTER FOR BIOLOGICAL DIVERSITY, DEFENDERS OF WILDLIFE Substituting for attorney Tanya Sanerib (Fink, Marc) (Entered: 04/29/2020)

04/29/2020 05/29/2020 06/05/2020 06/05/2020
06/10/2020 06/10/2020 06/11/2020 06/17/2020 06/19/2020 06/22/2020

62 NOTICE of Changes In Funding For Border Barrier Projects Undertaken Pursuant to 10 U.S.C. § 2808 in Fiscal Year 2019 by DAVID L. BERNHARDT, KEVIN K. MCALEENAN, TODD T. SEMONITE, PATRICK M. SHANAHAN (Attachments: # 1 Exhibit)(Warden, Andrew) (Attachment 1 replaced on 5/1/2020) (zeg). (Entered: 04/29/2020)
63 MOTION for Summary Judgment by ANIMAL LEGAL DEFENSE FUND, CENTER FOR BIOLOGICAL DIVERSITY, DEFENDERS OF WILDLIFE (Attachments: # 1 Text of Proposed Order, # 2 Declaration, # 3 Exhibit 1)(Segee, Brian) (Entered: 05/29/2020)
64 Joint MOTION to Bifurcate Merits and Remedy Briefing by DAVID L. BERNHARDT, KEVIN K. MCALEENAN, TODD T. SEMONITE, PATRICK M. SHANAHAN (Attachments: # 1 Text of Proposed Order)(Warden, Andrew) (Entered: 06/05/2020)
65 TRANSCRIPT OF PROCEEDINGS before Judge Trevor N. McFadden held on 12/16/2019; Page Numbers: 1−129. Date of Issuance:06/05/2020. Court Reporter/Transcriber Crystal M. Pilgrim, Telephone number 202.354.3127, Transcripts may be ordered by submitting the Transcript Order Form
For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referen ced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.
Redaction Request due 6/26/2020. Redacted Transcript Deadline set for 7/6/2020. Release of Transcript Restriction set for 9/3/2020.(Pilgrim, Crystal) (Entered: 06/05/2020)
MINUTE ORDER. It is hereby ORDERED that the parties shall appear for joint hearing with Rio Grande International et al. v. Trump et al. (19−cv−00720) on the parties' 64 Joint Motion to Bifurcate Merits and Remedy Briefing on June 11, 2020, at 10:00 a.m. The hearing will take place by telephone. Dial−in information will be emailed to counsel. SO ORDERED. Signed by Judge Trevor N. McFadden on 6/10/2020. (lctnm1) (Entered: 06/10/2020)
Set/Reset Hearings: Telephonic Motion Hearing set for 6/11/2020 at 10:00 AM before Judge Trevor N. McFadden. (hmc) (Entered: 06/10/2020)
Minute Entry for proceedings held before Judge Trevor N. McFadden: Telephonic Motion Hearing held on 6/11/2020. 64 Joint Motion to Bifurcate Merits and Remedy Briefing, DENIED without prejudice. The parties are directed to file, within one week, a subsequent motion for a revised scheduling order. (Court Reporter: Crystal Pilgrim.) (hmc) (Entered: 06/11/2020)
66 Joint MOTION for Briefing Schedule Adjustment to Address Merits and Remedy Issues by DAVID L. BERNHARDT, KEVIN K. MCALEENAN, TODD T. SEMONITE, PATRICK M. SHANAHAN (Attachments: # 1 Text of Proposed Order)(Warden, Andrew) (Entered: 06/17/2020)
67 ORDER granting the parties' 66 Joint Motion for Briefing Schedule Adjustment to Address Merits and Remedy Issues. See attached Order for details. Signed by Judge Trevor N. McFadden on 6/19/2020. (lctnm1) (Entered: 06/19/2020)
Set/Reset Deadlines: Defendants' Opposition and Cross−Motion for Summary Judgment due by 6/26/2020. Plaintiffs' Reply and Opposition to Cross−Motion due by 7/17/2020. Defendants' Reply due by 8/14/2020. Plaintiffs' Sur−Reply due by 9/4/2020. (hmc) (Entered: 06/22/2020)

06/26/2020
06/26/2020
07/10/2020 07/13/2020 07/13/2020 07/17/2020 07/17/2020

68 Cross MOTION for Summary Judgment by DAVID L. BERNHARDT, KEVIN K. MCALEENAN, TODD T. SEMONITE, PATRICK M. SHANAHAN (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Text of Proposed Order)(Warden, Andrew) Modified docket event/text on 6/29/2020 (eg). (Entered: 06/26/2020)
69 Memorandum in opposition to re 68 MOTION for Summary Judgment filed by DAVID L. BERNHARDT, KEVIN K. MCALEENAN, TODD T. SEMONITE, PATRICK M. SHANAHAN. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Text of Proposed Order)(Warden, Andrew) (Entered: 06/26/2020)
70 MOTION for Leave to File Memorandum of Law in Support of Defendants as Amicus Curiae by ANDY BARR (Attachments: # 1 Text of Proposed Order Proposed Order, # 2 Exhibit Proposed Amicus Memo of Law)(Joseph, Lawrence) (Entered: 07/10/2020)
MINUTE ORDER granting 70 Motion for Leave to File Amicus Brief. Signed by Judge Trevor N. McFadden on 7/13/2020. (lctnm1) (Entered: 07/13/2020)
71 AMICUS BRIEF by ANDY BARR. (eg) (Entered: 07/14/2020)
72 REPLY to opposition to motion re 63 MOTION for Summary Judgment filed by ANIMAL LEGAL DEFENSE FUND, CENTER FOR BIOLOGICAL DIVERSITY, DEFENDERS OF WILDLIFE. (Attachments: # 1 Declaration of Brian Segee)(Segee, Brian) (Attachment 1 replaced on 7/21/2020) (zeg). (Entered: 07/17/2020)
73 Memorandum in opposition to re 68 MOTION for Summary Judgment filed by ANIMAL LEGAL DEFENSE FUND, CENTER FOR BIOLOGICAL DIVERSITY, DEFENDERS OF WILDLIFE. (Attachments: # 1 Declaration of Brian Segee)(Segee, Brian) (Attachment 1 replaced on 7/21/2020) (zeg). (Entered: 07/17/2020)

 
 Case 1:19-cv-00408 Document 1 Filed 02/16/19 Page 1 of 39

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CENTER FOR BIOLOGICAL DIVERSITY, 378 N. Main Avenue Tucson, AZ 85701;
DEFENDERS OF WILDLIFE, 1130 17th Street, N.W. Washington, D.C. 20036;
ANIMAL LEGAL DEFENSE FUND, 525 E. Cotati Ave. Cotati, CA 94931;
Plaintiffs, v.
DONALD J. TRUMP, in his official capacity as President of the United States 1600 Pennsylvania Avenue, N.W. Washington, D.C. 20500;
PATRICK M. SHANAHAN, in his official capacity as acting Secretary of Defense 1000 Defense Pentagon Washington, D.C. 20301;
STEVEN MNUCHIN, In his official capacity as Secretary of the Department of Treasury, 1500 Pennsylvania Avenue, NW, Washington, D.C. 20220;
KIRSTJEN M. NIELSEN, in her official capacity as Homeland Security Secretary 245 Murray Lane, S.W. Washington, D.C. 20528;
DAVID BERNHARDT, in his official capacity as acting Secretary of the Interior

Case No.: __________________

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1849 C Street, N.W. Washington, D.C. 20240;
Defendants.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF INTRODUCTION
1. On February 15, 2019, President Donald J. Trump issued a “Presidential Proclamation on Declaring a National Emergency Concerning the Southern Border of the United States,” (hereafter referred to as “emergency proclamation”) pursuant to the purported authority of the National Emergencies Act (“NEA”), 50 U.S.C. § 1601 et seq. Under the emergency proclamation, the President directed the Secretary of Defense and the Secretary of Homeland Security to undertake specific acts in furtherance of border wall construction. The President further directed the reallocation of up to $601 million from the Treasury Forfeiture Fund, $3.6 billion in unspent funds appropriated for military construction projects, as well as up to $2.5 billion in unspent funds appropriated for support for counterdrug activity support, towards border wall construction. See White House Press Office: “President Donald J. Trump’s Border Security Victory” (Feb. 15, 2019).1
2. Though “emergency” is not defined under the NEA, its common usage typically involves elements of suddenness and surprise. Emergencies generally require an urgent response. The present situation sharply departs from both of these generalities. Here, the President first declared his intent to invoke the NEA nearly two months prior to making the proclamation. During the intervening time, he indicated his “absolute” right to declare an
1 Plaintiffs use the terms “border wall,” border fence,” and “border barrier” interchangeably. Regardless of construction method (steel bollard is currently the most commonly utilized), these large structures have far reaching environmental impacts.
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emergency, waffled as to whether he would exercise the authority, and repeatedly stated his intent to use an emergency proclamation should Congress continue to refuse to meet his $5.7 billion funding demand for a southern border wall. When the President finally did announce his emergency proclamation in the White House Rose Garden, he concluded that “I could do the wall over a longer period of time. I didn’t need to do this [but] I’d rather do it much faster.”
3. Including recently enacted appropriations, the administration “has so far identified up to $8.1 billion that will be available to build the border wall once a national emergency is declared and additional funds have been reprogrammed”—far more than the $5.7 billion amount previously requested by the administration. See White House Press Office: “President Donald J. Trump’s Border Security Victory.”
4. Of the 58 times presidents have previously declared emergencies under the National Emergencies Act, none involved using the emergency powers to fund a policy goal after a president failed to meet that goal through foreign diplomacy (having Mexico pay for the wall) or the congressional appropriations process. Never before has a president used the emergency powers granted to him by Congress in such a manner.
5. Even under a validly declared emergency, the President must identify any available existing statutory authority triggered by that proclamation which would authorize the reprogramming of previously appropriated funds. The National Emergencies Act does not permit a president to take any action, but instead unlocks a president’s ability to invoke specific and existing emergency statutory authorities. The President has failed to identify such statutory authority and Congress has not enacted any emergency legislation even remotely related to border wall construction, and thus the President’s reallocation of funds is unlawful.
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6. The President’s efforts to re-direct federal moneys set aside for combatting organized crime, 31 U.S.C. § 9705, military construction, 10 U.S.C. § 2808, and counterdrug support activities, 10 U.S.C. § 284, are squarely inconsistent with the plain language and broader statutory context of these provisions, and should be vacated and reversed. The southern border wall cannot—under any reasonable interpretation—be considered eligible for emergency redirection of funds appropriated by Congress for other purposes.
7. By unlawfully redirecting moneys from organized crime investigations, military construction, and counterdrug support appropriations to border wall construction, the emergency proclamation also exceeds President Trump’s constitutional authority by usurping Congress’s Article I Appropriation powers, Art. I, § 9, and by violating the President’s obligation to “take care that the Laws be faithfully executed.” Art. II, § 3.
8. The emergency proclamation is unlawful on its face. Implementation of the emergency proclamation, agency actions taken or directed to be taken under the proclamation, and the expenditure of funds to construct a border wall pursuant to that proclamation should be enjoined. Of particular concern to Plaintiffs and their members, border barriers prevent the passage of wildlife, and could result in the extirpation of jaguars, ocelots, and other endangered species within the United States. The use of funds for such barriers that on information and belief are directed at least in part to investigating and where relevant prosecuting organized criminal activities related to illegal wildlife trafficking further harms Plaintiffs’ interests in protecting and preserving biological diversity.
JURISDICTION AND VENUE 9. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and can grant declaratory relief pursuant to 28 U.S.C. §§ 2201-2202.
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10. Venue properly vests in this Court pursuant to 28 U.S.C. § 1391(b) and (e), because the violations are occurring in this district, Defendants reside in this district, and a substantial part of the events or omissions giving rise to the claims have occurred in this district due to decisions made by the Defendants.
PARTIES 11. Plaintiff CENTER FOR BIOLOGICAL DIVERSITY (“the Center”) is a nonprofit conservation organization with more than 1.4 million members and online activists dedicated to the protection of endangered species and wild places. The Center is headquartered in Tucson, Arizona, with offices in Washington, D.C. and numerous other locations throughout the country, and an office in Baja California Sur, Mexico. 12. The Center has worked for more than two decades to oppose environmentally harmful border fencing and other injurious border security projects along the U.S.-Mexico border generally, and within the specific Border Patrol sectors (San Diego, Calexico, Yuma, El Paso, Laredo, and Rio Grande Valley) impacted by the emergency proclamation specifically. The Center also has a long history of advocating for the protection of rare wildlife habitat and specific species that would be impacted by the emergency proclamation, including jaguar, ocelot, peninsular bighorn sheep, Sonoran pronghorn, Mexican gray wolf, Quino checkerspot butterfly, and coastal California gnatcatcher, and is directly responsible for the protection of numerous borderland species and their critical habitats under the Endangered Species Act. Center members Laiken Jordan and Michael Robinson enjoy observing wildlife and their habitat in borderlands areas that will be negatively affected by border wall construction. Additionally, the Center works to combat wildlife trafficking—the fourth largest criminal activity worldwide— and the threats it poses to biological diversity preservation.
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13. Plaintiff DEFENDERS OF WILDLIFE (“Defenders”) is a nonprofit organization with nearly 1.8 million members and supporters across the nation, including more than 3,600 members in New Mexico. Defenders’ mission is to preserve wildlife and emphasize appreciation and protection for all species in their ecological role. Through advocacy, litigation, and other efforts, Defenders works to preserve species and the habitats upon which they depend. Defenders has been closely involved in policy and litigation matters associated with border wall construction along the United States-Mexico border for more than a decade. Defenders has field offices across the country, including in Santa Fe, New Mexico.
14. Plaintiff ANIMAL LEGAL DEFENSE FUND (“ALDF”) is a nonprofit 501(c)(3) organization with more than 200,000 members and supporters, including thousands of whom live in states located on the U.S.-Mexico border, and at least hundreds of whom live in towns that are located in close proximity to border areas at issue. This includes Elizabeth Walsh, who resides in El Paso, Texas near Sunland Park, New Mexico near the United States-Mexico border. Ms. Walsh has been a member of ALDF since at least 2012. She routinely visits the border areas that will be impacted by the emergency proclamation for professional and recreational purposes. Similarly, ALDF member Robert Knaier resides in San Diego County, California and regularly visits the border area in California for recreational purposes. ALDF represents its members interests by working to protect the lives of animals, including wildlife, through the legal system. This includes prior litigation challenging unlawful attempts to waive environmental and animal protection laws to facilitate border construction. ALDF is headquartered on Cotati, California.
15. Plaintiffs have organizational and membership-based interests in the preservation and conservation of specific areas of the U.S.-Mexico borderlands that have been declared a national emergency zone under the President’s February 15, 2019 proclamation. Plaintiffs and
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their members are harmed by the emergency proclamation, the invocation of emergency powers arising from the proclamation, the agency actions taken or directed under the declaration, and the unlawful reallocation of previously appropriated funds to border wall construction. Plaintiffs’ members and staff live in or regularly visit the U.S.-Mexico borderlands region, including specific areas within the San Diego, Calexico, Yuma, El Paso, Laredo, and Rio Grande Border Patrol sectors that will be impacted by the emergency proclamation. These specific areas include numerous areas of federal, state, and local protected borderlands, including but not limited to Cleveland National Forest, Cabeza Prieta National Wildlife Refuge, Coronado National Forest, Lower Rio Grande Valley National Wildlife Refuge, and lands administered by the U.S. Bureau of Land Management. Plaintiffs’ staff and members use these specific borderland areas for hiking, camping, viewing and studying wildlife, photography, and other scientific, vocational and recreational activities, and have specific intentions to continue to use and enjoy these areas frequently and on an ongoing basis in the future. Border wall construction, and associated actions including stripping all vegetation within a 150-foot enforcement zone, road construction, and high-intensity lighting, would harm Plaintiffs’ members and these protected interests in numerous ways. These harms would include immediate impacts, such as precluding future visitation of impacted areas, destroying wildlife habitat, and killing individual wildlife species. Border wall construction would also result in longer term harm, by blocking connectivity between wildlife populations in U.S. and Mexico, harming the long term viability of those species, and in some cases, resulting in their extirpation from the United States. These harms go to Plaintiffs’ central organizational purposes.
16. Plaintiffs further work to combat wildlife trafficking because illegal poaching, trafficking, and sales or possession of wildlife species is the second greatest threat to biological
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diversity. The diversion of funds that would otherwise be used to combat organized crime— including wildlife trafficking—to border wall construction harms Plaintiffs’ efforts to reduce such trafficking. This diversion of funds will both force Plaintiffs to spend additional organizational resources on combatting wildlife trafficking and raising awareness about it. It also harms Plaintiffs and their members’ interests in observing, enjoying, and protecting frequently trafficked species and the intact ecosystems in which they reside.
17. Defendant DONALD J. TRUMP, President of the United States, is sued in his official capacity. President Trump issued the emergency proclamation on February 15, 2019.
18. Defendant PATRICK M. SHANAHAN, Acting Secretary of Defense, is sued in his official capacity. The February 15, 2019 emergency proclamation instructs the Defense Secretary to “take all appropriate actions” in support of the proclamation’s directives, including taking action to reallocate military construction and counterdrug operations appropriated funds to border wall construction.
19. Defendant STEVEN MNUCHIN, Department of Treasury Secretary, is sued in his official capacity. The Department of Treasury through its Treasury Executive Office for Asset Forfeiture administers the Treasury Forfeiture Fund. The President has directed the reprogramming of $601 million from the Treasury Forfeiture Fund for border wall construction.
20. Defendant KIRSTJEN M. NIELSEN, Homeland Security Secretary, is sued in her official capacity. The February 15, 2019 emergency proclamation instructs the Homeland Secretary to “take all appropriate actions” in support of the proclamation’s directives.
21. Defendant DAVID BERNHARDT, Acting Secretary of the Interior, is sued in his official capacity. The February 15, 2019 emergency proclamation instructs the Interior Secretary to “take all appropriate actions” in support of the proclamation’s directives.
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LEGAL BACKGROUND A. The National Emergencies Act 22. The President’s statutory authority to declare a national emergency is governed by the 1976 National Emergencies Act (“NEA”). 50 U.S.C. § 1601 et seq. The Act was designed to limit presidential power and reclaim authority that had been delegated from the legislative branch. See Jules Lobel, Emergency Power and the Decline of Liberalism, 98 Yale L.J. 1385, 1412 (1989) (stating that NEA responded to “the twin disasters of Vietnam and Watergate” and the sense that “the pendulum had swung too far” in favor of the growth of executive power). 23. The enactment of the NEA terminated all existing states of emergency and established a uniform procedural framework for the future exercise of such powers. In addition, the NEA established other mechanisms intended to better ensure presidential accountability by establishing reporting and other requirements. 24. A proclamation issued under the NEA triggers the President’s authority to invoke existing Acts of Congress which authorize “the exercise, during the period of a national emergency, of any special or extraordinary power.” 50 U.S.C. § 1621(a); id. § 1631 (“When the President declares a national emergency, no powers or authorities made available by statute for use in the event of an emergency shall be exercised unless and until the President specifies the provisions of law under which he proposes that he, or other officers will act.”). 25. Accordingly, the scope of the President’s emergency powers is limited to legislative enactments under which Congress has specifically granted those powers in advance. 26. An emergency proclamation “shall immediately be transmitted to the Congress and published in the Federal Register.” Id. § 1621(a). 27. The NEA does not define the term “emergency.”
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28. The common usage of the term “emergency” involves an element of suddenness and unexpectedness. Merriam-Webster, for example, states that an emergency is “an unforeseen combination of circumstances or the resulting state that calls for immediate action.” Similarly, Black’s Law Dictionary defines the word as a “sudden, unexpected, or impending situation.”
29. NEA’s legislative history shows that the emergency power conferred by Congress is not boundless. In testimony before the Committee on Government Operations on February 25, 1976, co-sponsor Senator Frank Church stated that “Congress should be forewarned that it is inherent in the nature of modern government that the Executive will seek to enlarge its power in small ways and large,” and advised that the president “should not be allowed to invoke emergency authorities or in any way utilize the provision of [the NEA] for frivolous or partisan matters, nor for that matter in cases where important but not ‘essential’ problems are at stake.”
30. There are currently an estimated 123 statutory authorities that may be invoked by an emergency proclamation under the NEA. See Brennan Center for Justice, “A Guide to Emergency Powers and Their Use.” These provisions address disparate issues including public health; land management; military and national defense; federal employees; asset seizure, control, and transfer; criminal prosecution and detainment powers; and international relations.
31. The NEA has been invoked at least 58 times from 1978-2012. Nearly all of the declared emergencies (49 instances) relate to sanctions or export restrictions. Four emergencies relate to weapons proliferation. The remaining five emergencies did not fit into any specific category and involved the 2009 swine flu outbreak, the September 11 terrorist attacks, vessel movement near Cuba, rough diamonds from Sierra Leone, and sale of Iraq petroleum.
32. None of the 123 emergency statutory authorities that may be invoked under an NEA proclamation address immigration or border wall construction.
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B. Title 8 (Immigration), the Immigration and Naturalization Act, and the “Mass Influx” and “Emergency Situation Refugees” Provisions
33. Congress has not established any National Emergency Act authorities under Title 8 (Immigration) of the United States Code.
34. The Immigration and Naturalization Act (“INA”), 8 U.S.C. § 1101 et seq., “established a comprehensive federal statutory scheme for regulation of immigration and naturalization and set the terms and conditions of admission to the country and subsequent treatment of aliens lawfully in the country.” Chamber of Commerce v. Whiting, 563 U.S. 582, 587 (2011).
35. While the INA does not contain any emergency provision triggered by the NEA, Congress did specifically consider the urgency of “an actual or imminent mass influx of aliens arriving off the coast of the United States, or near a land border.” 8 U.S.C. § 1103(a)(10). In such a circumstance, the INA does not contemplate a military response, but instead authorizes the Attorney General to deputize any State or local law enforcement officer with the authority to perform federal immigration duties.
36. The INA also addresses emergency refugee situations. 8 U.S.C. § 1157. In such a circumstance, the INA again does not contemplate a military response, but instead allows the President to grant admissions beyond the maximum established by Congress in order to address humanitarian concerns, and directs the President to consult with Congress and the Cabinet.
C. DHS’s Statutory Responsibility for Border Security and Border Fencing 37. The Department of Homeland Security (“DHS”) and its component agency U.S. Customs and Border Protection (“CBP”) are domestic agencies charged with preventing the entry of terrorists, securing the borders, and carrying out immigration functions. Within CBP, the U.S. Border Patrol’s mission is to prevent illegal entry across approximately 7,000 miles of
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Mexican and Canadian international borders and 2,000 miles of coastal borders surrounding Florida and Puerto Rico.
38. Beginning with enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), P.L. 104-208, 8 U.S.C. § 1103 note, Congress has periodically directed DHS to build fencing on the southern border.
39. As originally enacted, section 102(b) of IIRIRA required the completion of a triple-layer fence along a 14-mile stretch of border fencing in the San Diego sector where construction had begun in the early 1990s.
40. The Secure Fence Act of 2006, P.L. 109-367 (October 26, 2006) amended section 102(b) of IIRIRA to require DHS to construct at least two layers of reinforced fencing as well as physical barriers, roads, lighting, cameras, and sensors on five specific sections of the southern border totaling approximately 850 miles.
41. Shortly thereafter, the DHS Appropriations Act, 2008, P.L. 110-161 (December 26, 2007) again amended section 102(b) of IIRIRA by removing the specific location and double-layer fencing requirements, and instead directing DHS to construct not less than 700 miles of reinforced fencing where fencing would be most practical and effective.
D. Military Support for Civilian Law Enforcement Agencies (Title 10, Chapter 15)
42. The principle that the military cannot act as a domestic police force is deeply rooted in U.S. history and law. Under the Posse Comitatus Act, 18 U.S.C. § 1385, enacted in 1878, the use of “any part of the Army or Air Force as a posse comitatus (i.e., deputized by civilian law enforcement officials to carry out the law) [is] a felony, except in cases of and under circumstances expressly authorized by the Constitution or an act of Congress.” The law’s reach was subsequently extended to the Marines and Navy.
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43. Beginning in the early 1980s, Congress passed several Defense Authorization Acts that relaxed Posse Comitatus Act prohibitions by authorizing the use of military in specified domestic law enforcement activities. These provisions are codified under a new chapter of the U.S. Code (Title 10, Chapter 15, “Military Support for Civilian Law Enforcement Agencies.”).
44. Under Chapter 15, Congress has not given the military emergency authority to assist in border wall construction or any other border security or immigration related task.
45. Chapter 15 does authorize the military to, in a non-emergency situation, share information, 10 U.S.C. § 271; allow use of military equipment and facilities, id. § 272; train and advise civilian law enforcement officials, id. § 273; and maintain and operate equipment, id. § 274. In addition, the military may provide various types of support for counterdrug activities and activities to counter transnational organized crime. Id. § 284. This support includes the “[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.” Id. § 284(b)(7).
46. The non-emergency military support authorized under Chapter 15 can only be provided to domestic law enforcement agencies subject to several prior conditions. Such support, for example, may not be provided if it will adversely affect military preparedness. Id. § 276. In addition, the civilian law enforcement agency must normally reimburse Department of Defense for the costs of its support. Id. § 277.
47. Congress has specifically limited the military’s support of domestic law enforcement agencies in emergencies to circumstances involving weapons of mass destruction, id. § 282, and situations involving bombings of places of public use, Government facilities, public transportation systems, and infrastructure facilities. Id. § 283. These emergency support provisions are subject to detailed procedures, and limited to situations that pose a serious threat
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to the interests of the United States and involve violence causing or imminently threatening significant loss of civilian lives.
E. Military Construction (Title 10, Chapter 169) 48. Military construction appropriations are provided in the annual Military Construction, Veterans Affairs, and Related Appropriations Act. These appropriations fund military construction for the active and reserve components, as well as military family housing, U.S. contributions to NATO, and BRAC actions. 49. Military construction activities have no relation to border wall construction and other support of DHS and other civilian law enforcement agencies, which are addressed under Title 10, Chapter 15. 50. The Trump administration previously objected that the Department of Defense fiscal year 2019 appropriations bill, signed into law September 2018, provided $8.1 billion for military construction rather than the $8.9 billion requested by the administration. See July 18, 2018 letter to Senate Appropriations Comm. (“By incrementally funding, rather than fully funding, military construction projects, the bill delays critical resources to complete high-priority projects initiated in 2019 and puts the burden on future budgets to make up the difference.”). 51. Congress has provided for an NEA emergency for military construction projects. 10 U.S.C. § 2808 provides: In the event of a proclamation of war or the proclamation by the President of a national emergency in accordance with the National Emergencies Act (50 U.S.C. 1601 et seq.) that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces. Such projects may be undertaken only within the total amount of funds that have been appropriated for military construction, including funds appropriated for family housing, that have not been obligated.
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F. The Treasury Forfeiture Fund 52. The Treasure Forfeiture Fund is the receipt account for the deposit of non-tax forfeitures as a result of laws enforced or administered by participating federal agencies, namely Internal Revenue Service Criminal Investigations Division of the Department of the Treasury; U.S. Immigration and Customs Enforcement of the Department of Homeland Security; U.S. Customs and Border Protection of the Department of Homeland Security; U.S. Secret Service of the Department of Homeland Security; and U.S. Coast Guard of the Department of Homeland Security. 53. The Treasury Forfeiture Fund contains no provision providing for the declaration of war or national emergency. 31 U.S.C. § 9705. 54. Instead, it provides funds that are earmarked by law for specific purposes as delineated in the statute. 55. These delineations include funding for: “proper expenses of seizure;” payment of services (such as to contractors or reimbursing States); awards to informers; satisfaction of liens; “[p]ayment of amounts authorized by law with respect to remission and mitigation;” payment of certain claims; equitable sharing payments to States and others; State or local law enforcement costs; and payments for the seizure and forfeiture program. Id. § 9705(a)(1). 56. The Secretary also has discretion under the Act to fund: “payment of awards for information or assistance” leading to forfeiture; purchases of evidence; publicizing awards; “payment for equipment for any vessel, vehicle, or aircraft” for Treasury law enforcement agencies or for coordinating State or local law enforcement entities; settlement of Custom Service claims; and expenses of private collaborators; and trainings on seizures and forfeitures. Id. § 9705(a)(2).
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57. The goal for these funds is to prosecute organized crime and specifically bring seizure and forfeiture cases are intended to generate funds to bring more such cases with the ultimate goal of disrupting and dismantling criminal enterprises.
58. Examples of recent prosecutions include: “Rabobank agreed to forfeit $398,701,259 as a result of allowing illicit funds to be processed through the bank without adequate Bank Secrecy Act (BSA) or AML review;” a New York man forfeited $1,624,172 as a result of a biodiesel fraud scheme; and a St. Paul man forfeited $1,612,451 after defrauding the Hmong community.2
59. On information and belief, the funds are also used to combat wildlife related crimes such as trafficking, illegal fishing, and the like.
60. The fund is generated by forfeitures made by the Internal Revenue Service Criminal Investigation division, U.S. Immigration and Customs Enforcement, CBP, and the U.S. Secret Service.
61. The funds are shared among specified federal agencies but also with the Coast Guard, 31 U.S.C. § 9705(c), and some funds are allocated to State, local, and foreign authorities for joint investigations and prosecutions. Id. § 9705(a)(1)(B)(iii), (a)(1)(G), (c)(2)(B).
CONSTITUTIONAL BACKGROUND A. The Appropriations Clause 62. Article I, § 9, cl. 7 provides that “no Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” 63. The Appropriations Clause plays a critical role in the Constitution’s separation of powers among the three branches of government and the checks and balances between them.
2 https://www.treasury.gov/about/organizational-structure/ig/Audit%20Reports%20and%20Testimonies/OIG-19022.pdf
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64. The Clause has a “fundamental and comprehensive purpose … to assure that public funds will be spent according to the letter of the difficult judgments reached by Congress as to the common good and not according to the individual flavor of Government agents.” Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 427-28 (1990); id. at 427 (without the Appropriations Clause, “the executive would possess an unbounded power over the public purse of the nation; and might apply all its moneyed resources at his pleasure.”) (quoting 2 J. Story, Commentaries on the Constitution of the United States § 1348 (3d ed. 1858)).
65. If a Court finds that the executive branch is spending money in violation of a spending provision, “it would be drawing funds from the Treasury without authorization by statute and thus violating the Appropriations Clause.” United States v. McIntosh, 833 F.3d 1163, 1175 (9th Cir. 2016).
B. Take Care Clause 66. The President “shall take Care that the Laws be faithfully executed … .” U.S. Const., Article II, § 3. 67. The Take Care Clause places an obligation on the President and those under his supervision to comply with and execute clear statutory directives as enacted by Congress. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952) (“[T]he President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad.”). 68. Under the Take Care Clause, the President and his subordinates may not create law by disregarding or repealing a validly enacted statute. See Clinton v. City of New York, 524
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U.S. 417, 488 (1998) (“There is no provision in the Constitution that authorizes the President to enact, to amend, or the repeal statutes.”).
FACTUAL ALLEGATIONS 69. On June 16, 2015, in a campaign announcement speech, then Mr. Donald Trump stated: I would build a great wall. And nobody builds walls better than me, believe me. And I’ll build them very inexpensively. I will build a great great wall on our southern border and I’ll have Mexico pay for that wall. 70. On January 25, 2019, at the end of the longest government shutdown, President Trump stated: We really have no choice but to build a powerful wall or steel barrier. If we don’t get a fair deal from Congress, the government will either shut down on February 15 again or I will use the powers afforded to me under the laws and the Constitution of the United States to address this emergency. 71. On February 15, 2019, in announcing the issuance of an emergency proclamation, President Trump said:
So we have a chance at getting close to $8 billion—whether its $8 billion or $2 billion or $1.5 billion, it’s going to build a lot of wall. We’re getting it done. A. The February 15, 2019 Emergency Proclamation 72. On February 15, 2019, President Trump issued a “Presidential Proclamation on Declaring a National Emergency Concerning the Southern Border of the United States.” 73. The proclamation declares the “current situation at the southern border,” including “large-scale unlawful migration” and “sharp increases in the number of family units entering and seeking entry to the United States,” as a “national emergency,” and states that “[b]ecause of the gravity of the current emergency situation, it is necessary for the Armed Services to provide additional support to address the crisis.”
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74. Relying on the NEA, the proclamation invokes the emergency military construction authority provided under 10 U.S.C. § 2808 (“the construction authority provided in section 2808 of title 10, United States Code, is invoked and made available, according to its terms, to the Secretary of Defense and, at the discretion of the Secretary of Defense, to the Secretaries of the military departments.”).
75. Section 2 of the proclamation directs that the Defense Secretary (as well as the DHS Secretary and Secretary of the Interior) “shall take all appropriate actions, consistent with applicable law, to use or support the use of the authorities herein invoked, including, if necessary, the transfer and jurisdiction over border lands.”
76. According to the administration, the emergency proclamation makes approximately $6 billion in funds that have been appropriated by Congress to other purposes to instead be directed to border wall construction. These funds include $601 million from the Treasury Forfeiture Fund, $2.5 billion from counterdrug support funds, and $3.6 from military construction projects.
B. The Nation’s Longest Government Shutdown, and the President’s Abuse of the National Emergencies Act as a Negotiating Tactic
77. President Trump first raised the specter of an emergency proclamation on January 4, 2019, two weeks into the nation’s longest federal shutdown, which began at midnight on December 21, 2018, and which would continue until January 25, 2019.
78. The shutdown was the culmination of months of disagreement between the President and Congress over the administration’s $5.7 billion demand for a border wall, and was the central dispute in the final, “lame duck” days of the 115th Congress.
79. On December 11, 2018, President Trump met with House Minority Leader (Speaker to be) Nancy Pelosi and Senate Minority Leader Chuck Schumer, and on live television
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proclaimed “I am proud to shut down the government for border security. I will take the mantle. I will be the one to shut it down.” The President had made numerous earlier statements suggesting he would relish shutting down the government if Congress did not meet his precise funding demands. See, e.g., July 30, 2018 (“I have no problem doing a shutdown”); September 12, 2018 (“If it happens, it happens”).
80. On December 19, 2018, the Senate passed a continuing resolution providing funding to DHS and other agencies (Agriculture, Commerce, Justice, the Interior, State, Transportation, and Housing and Urban Development), until February 8, 2019, without border wall funding, with the understanding that President Trump supported the bill.
81. On December 20, 2018 (one day before government funding for DHS and the other agencies lapsed), after President Trump was attacked by conservative TV pundits and the House Freedom Caucus, the President flipped his position and announced he would not sign the Senate bill because it did not have any border wall funding. That afternoon, House Republicans passed a continuing resolution with $5.7 billion in border wall funds.
82. On December 21, 2018, President Trump encouraged Senator McConnell to abolish the filibuster in order to pass the $5.7 billion spending bill in the Senate. Acknowledging that this would not occur, President Trump mused that there was a “very good” chance of a government shutdown and that it could last a “very long time.” As the President predicted, the Senate voted down the House version of the bill and the government shut down at midnight.
83. Two weeks later, on January 4, 2019, President Trump for the first time publicly voiced his perceived authority to use the National Emergencies Act for emergency border wall funding.
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84. Between that date and the February 15, 2019, emergency proclamation, the President repeatedly and clearly stated his belief that the NEA could be used as a negotiating tactic with Congress. During this time, the President also vacillated on his ultimate intention to declare an emergency.
85. On January 9, 2019, President Trump stated that “I have an absolute right to do national emergency if I want,” and revealed that his “threshold” for invoking the emergency would be if he “can’t make a deal with people that are unreasonable.”
86. On January 10, 2019, the President said that he was “maybe, definitely” planning on invoking an emergency proclamation to build the border wall. President Trump explained that working with Democrats in Congress was “ridiculous” and that “[i]f we don’t make a deal, I would say 100 percent, but I don’t want to say 100 percent,” and that “[i]f we don’t make a deal, I would say it would be very surprising to me that I would not declare a national emergency and just fund it through the various mechanisms.”
87. On January 11, 2019, the President denied intent to immediately declare an emergency under the NEA, stating that “what we’re not looking to do right now is national emergency.”
88. On January 25, 2019, President Trump and Congress reached an agreement to end the 35-day partial federal shutdown, providing funding for the affected agencies including DHS for three weeks, through February 15, 2019.
89. In his January 25 speech announcing the temporary deal to end the shutdown, the President again threatened use of the NEA as a negotiating tactic, stating “[w]e really have no choice but to build a powerful wall or steel barrier. If we don’t get a fair deal from Congress, the
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government will either shut down on February 15 again or I will use the powers afforded to me under the laws and the Constitution of the United States to address this emergency.”
90. On January 29, 2019, Undersecretary of Defense for Policy John Rood testified to the House Armed Services Committee that if President Trump declared an emergency and directed the Pentagon to act, that the military would build the wall “if we judged it to be a lawful order. And I assume it would be.”
91. On January 31, 2019, President Trump stated that “we’ve set the stage for what’s going to happen on February 15 [i.e. an emergency proclamation] if a deal is not made.”
92. On February 1, 2019, the President that “I think there’s a good chance that we’ll have to do” an emergency proclamation, while noting “tremendous obstruction by Democrats.”
93. The President would continue to threaten use of the NEA until issuing the emergency proclamation on February 15, 2019. At the press conference on February 15, 2019, announcing the emergency proclamation, however, the President disclaimed the need to declare a national emergency, stating: “I could do the wall over a longer period of time—I didn’t need to do this—but I would rather do it much faster. … I just want to get it done faster, that’s all.”
C. CBP Has Already Constructed More than 700 Miles of Border Barriers, and Congress Has Not Mandated New Border Fencing In More Than a Decade
94. CBP has considered its statutory fencing obligations under IIRIRA complete since 2010, when it had completed 654 miles of primary border fencing (as well as approximately 50 miles of secondary and tertiary fencing, for a total exceeding 700 miles).
95. In 2010, Acting CBP Deputy Commissioner David Aguilar told a House committee, “[t]he Border Patrol has determined after extensive study that only 652 miles—not 700-miles—of fencing is operationally necessary to secure the southwest border.” Prior to the Trump administration, DHS had not constructed significant new border fencing since 2010.
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Congress has not mandated new border fencing in well over a decade, since the enactment of the Secure Fence Act.
D. Congress Has Provided the Trump Administration with Funding for More Than 175 Miles of New or Replacement Border Wall Construction, the Large Majority of Which Remains Uncompleted
96. Congress has provided the Trump administration with nearly $3 billion in funding for border fence construction, the large majority of which remains uncompleted.
97. In response to the administration’s fiscal year 2017 budget amendment and request for supplemental appropriations, the Consolidated Appropriations Act, 2017, provided CBP with $292 million “for the replacement of primary pedestrian and vehicle fencing in highpriority areas, using previously deployed and operationally effective designs, such as currently deployed steel bollard designs … .” Pub. L. No. 115-31, div. F, tit. VI.
98. CBP directed those fiscal year 2017 funds to 40 miles of replacement wall construction in San Diego, El Centro, El Paso, and near Santa Teresa. The constructed was expedited by the waiver of the National Environmental Policy Act (“NEPA”), Endangered Species Act (“ESA”), and more than 30 additional laws pursuant to IIRIRA §102(c). See 82
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Fed. Reg. 35,984, August 2, 2017 (San Diego); 82 Fed. Reg. 42,829, Sept. 12, 2017 (El Centro); 83 Fed. Reg. 3,012, Jan. 22, 2018 (Santa Teresa).
99. In March 2018, Congress provided the Trump administration with an additional $1.34 billion for secondary fencing replacement in the San Diego sector, new primary fencing in the Rio Grande Valley sector, and replacement of existing pedestrian fencing in any location along the southwest border. Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, div. F, tit. II, § 230.
100. CBP estimates that the fiscal year 2018 appropriations bill will fund approximately 84 miles of border barrier construction.
101. DHS issued two waivers under IIRIRA §102(c) to expedite border wall construction in the lower Rio Grande Valley sector, in Cameron County, Texas (83 Fed. Reg. 50,949), and Hidalgo County, Texas (83 Fed. Reg. 51,472) waiving NEPA, ESA, and more than 30 additional laws.
102. DHS has issued two contracts to construct new border wall in the Rio Grande sector using FY 2018 appropriations, both located in Hidalgo County: FY18 RGV-003 (six miles) and FY 18 RGV-02 (five segments, eight miles).
103. The construction on these two contracts will be the first of the estimated 84 miles of border wall construction that is funded by the Fiscal Year 2018 Appropriations to be commenced.
104. On February 15, 2019, immediately after issuing the emergency proclamation, the President signed H.J. Res. 31, Consolidated Appropriations Act, 2019, providing $1.3 billion in border wall construction.
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105. Despite this funding, Congress has not provided additional funding demanded by President Trump for CBP specified border wall priorities.
E. The Emergency Proclamation Will Have Significant Environmental Impacts 106. The Trump administration has explained that its $5.7 billion request for border wall construction will “fund construction of a total of approximately 234 miles of new physical barrier and fully fund the top 10 priorities in CBP’s Border Security Improvement Plan.” See Jan. 6, 2019 letter from Russell T. Vought, OMB Acting Director, to Senator Richard Shelby, Appropriations Committee Chairman. 107. These “highest priority border wall miles” total 215 miles. See DHS Press Release, “Walls Work” (Dec. 12, 2018). Border Patrol has broken down the 215 miles by sector (Border Patrol divides responsibility for border security operations geographically among nine sectors, each with its own headquarters). These highest priority areas are: San Diego sector-5 miles; El Centro sector-14 miles; Yuma sector-27 miles; El Paso sector-9 miles; Laredo sector55 miles; and Rio Grande Valley sector-104 miles. 108. CBP has not clarified what, if any, overlap exists between currently funded border wall mileage and the 215 miles of “highest priority border wall.” Currently funded new border wall mileage under the FY 2018 and FY 2019 appropriations bills is, however, limited to the Rio Grande Valley sector; thus, all of the construction within “highest priority areas” in the San Diego, El Centro, Yuma, El Paso, and Laredo sectors would not occur but for the unlawful appropriations reallocation under the emergency proclamation. 109. The emergency proclamation provides the administration with access to a total of $8.1 billion, despite its consistently stated position that $5.7 billion would fund its border wall priority projects.
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110. The border wall construction funded by the emergency proclamation would directly harm Plaintiffs and their members. The environmental harm from this construction will likely, among other concerns, impact threatened and endangered species listed under the Endangered Species Act, as well as their designated critical habitat; impact lands under federal jurisdiction, including National Parks, National Forests, National Wildlife Refuges, National Monuments, and other lands within the National Landscape Conservation System (administered by the Bureau of Land Management), Wilderness areas, Wild and Scenic Rivers, and other areas of high environmental value; and impact waters of the United States protected by the Clean Water Act.
111. Of particular concern to Plaintiffs’ core organizational interests, the border wall construction unlawfully funded by the emergency proclamation would result in severance of wildlife connectivity and cross-border movement between wildlife populations on either side of the U.S.-Mexico border. Every endangered jaguar seen in the United States during the species’ nascent recovery in the past two decades, for example, was born in Mexico.
112. Given that approximately 700 miles of the southern border already has some form of fencing on it, the cumulative and irreversible impact of additional border fencing on wildlife populations becomes ever more heightened with each additional mile of border wall constructed. Indeed, the border wall construction funded by the emergency proclamation would likely result in the fencing of the final remaining gaps in at least two Border Patrol sectors.
113. The emergency proclamation unlawfully funds as much as 5 miles of border barrier construction in the San Diego sector, which has an area of responsibility from the Pacific Ocean eastward to the Imperial County line. The San Diego sector is already heavily fortified,
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with primary fencing covering 46 of 60 miles, 30 percent of the miles of all secondary and tertiary fencing along the southwest border, and more than 300 miles of patrol roads.
114. The remaining unfenced areas within the San Diego sector are of high environmental value, and are generally mountainous and rugged, including unfenced areas within the San Ysidro Mountains and the complex geography of southeastern San Diego County. This area include two major tributaries of the Tijuana River (Cottonwood Creek and Tecate Creek), and designated critical habitat under the Endangered Species Act for coastal California gnatcatcher, Quino checkerspot butterfly, and Arroyo toad.
115. The emergency proclamation unlawfully funds as much as 14 miles of border barrier construction in the El Centro sector, which has an area of responsibility from the Jacumba Mountains in the west to the Imperial Sand Dunes in the east. The El Centro sector is already heavily fortified, with primary fencing covering 59 of its 70 miles, and 214 miles of patrol roads.
116. The remaining unfenced areas within the El Centro sector are of high environmental value. The largest unfenced area is in highly rugged and mountainous terrain within the Jacumba Mountains and their sheer eastern escarpment. This area is designated critical habitat for the peninsular bighorn sheep pursuant to the Endangered Species Act. 74 Fed. Reg. 17,288 (April 14, 2009). The Jacumba Mountains “represent the southernmost portion of the Peninsular Ranges in the United States,” and “represent the only area of habitat connecting the [U.S. population] with other bighorn sheep populations that occupy the Peninsular Ranges in Mexico.” Id. at 17,318.
117. The emergency proclamation unlawfully funds as much as 27 miles of border barrier construction in the Yuma sector, which has an area of responsibility from the Imperial Sand Dunes in the west to the Yuma-Pima County line in Arizona to the east. The Yuma sector
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is already heavily fortified, with primary fencing covering 107 of 126 miles, as well as 209 miles of patrol roads.
118. The remaining unfenced areas within the Yuma sector are located in Arizona, of high environmental value, and located on rugged and mountainous terrain within the Barry M. Goldwater Air Force Range and Cabeza Prieta National Wildlife Refuge. The area includes essential habitat for endangered species including the Sonoran pronghorn.
119. The emergency proclamation funds as much as 9 miles of border barrier construction in the El Paso sector, which has an area of responsibility including the entire border of New Mexico as well as the two counties within far western Texas. The El Paso sector is already heavily fortified, with primary fencing covering 166 of 180 miles, as well as 465 miles of patrol roads.
120. The remaining unfenced areas within the El Paso sector are of high environmental value, including large sections of the remote New Mexico “bootheel.” This area contains designated critical habitat for jaguar and Chiricahua leopard frog, and is renowned for its wildlife including mule deer, mountain lions, antelope, and a bison herd.
121. The emergency proclamation funds as much as 55 miles of border barrier construction in the Laredo sector, which has an area of responsibility from Webb County in the northwest through Zapata County in the southeast. The Laredo sector is lightly fortified, with primary fencing covering 1 of 171 miles, and 144 miles of patrol roads.
122. The Laredo sector is of high environmental value, and like the entire southern Texas border, the international border is defined by the Rio Grande River.
123. The emergency proclamation would unlawfully fund as much as 104 miles of border barrier construction in the Rio Grande Valley sector, though some of this mileage may
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overlap with border wall construction that has already been funded in prior appropriations bills. The Rio Grande Valley sector, which encompasses the Lower Rio Grande Valley, is heavily fortified in some areas, with primary fencing covering 55 of 316 river miles, and 716 miles of patrol roads.
124. The lower Rio Grande Valley is considered one of the most biologically diverse areas in North America, and is a particularly crucial area for migratory birds. The remaining unfenced areas in the Rio Grande Valley sector are of high environmental value, and include protected federal lands including the Lower Rio Grande Valley National Wildlife Refuge and Santa Ana National Wildlife Refuge, and essential habitat for endangered species including ocelots.
125. The emergency proclamation will have environmental impacts that extend beyond border wall construction. According to the White House, the emergency proclamation will reprogram $601 million from the Treasury Forfeiture Fund. These funds are currently used to combat organized crime.
126. INTERPOL and United Nations Environment classify “[a]buse of the environment [a]s the fourth largest criminal activity in the world. Worth up to USD 258 billion, it is increasing by five to seven per cent every year and converging with other forms of international crime” and is “a growing threat to peace, security and stability.” Among these crimes is illegal wildlife trade, which the GAO has found to range “from $7 billion to $23 billion annually.”
127. The US Department of State classifies wildlife trafficking as a security threat. According to the GAO, “[t]he United States is one of the world’s largest trafficking markets and is increasingly becoming a source for illegal wildlife and wildlife products . . . .”
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128. Wildlife trafficking is the second greatest threat to biological diversity after habitat destruction. Plaintiffs dedicate organizational resources to addressing this threat. They seek federal and state protections for heavily trafficked species being pushed toward the edge of extinction and work to enforce those protections once granted. They work domestically and internationally to improve wildlife protections and raise awareness about the threats to wildlife from trafficking. Plaintiffs and their members enjoy observing frequently trafficked species in the wild in their native ecosystems. These species range from well-known animals such as elephants to numerous fish species, birds, reptiles, and amphibians.
129. By redirecting funding used to combat organized criminal networks, on information and belief funding will be lost for wildlife trafficking investigations and prosecutions. Of the $1.4 billion in funds identified by the Office of Inspector General available in the Treasury Forfeiture Fund for general law enforcement, the loss of any of those resources including up to $601 million for border wall construction, will harm Plaintiffs’ interests. Even if these funds are not specifically directed to wildlife trafficking, criminal networks often engage in drug, human, and wildlife trafficking simultaneously. This means a decrease in investigations and prosecutions is likely to negatively impact wildlife either directly or indirectly. This loss will harm Plaintiffs and their members’ interests in observing and enjoying frequently trafficked species in the wild. It will also force Plaintiffs to spend additional organizational resources toward combatting wildlife trafficking and raising awareness about these criminal activities.
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CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF Unlawful Proclamation of Emergency Violation of the National Emergencies Act 130. Plaintiffs incorporate by reference the allegations in all preceding paragraphs. 131. Plaintiffs have a non-statutory right of action to enjoin and declare unlawful Presidential action that is ultra vires. 132. The President’s authority to declare an emergency and redirect Congressional appropriations is limited to statutory delegations of such authority, such as the delegation made under the NEA. 133. The President’s own statements and the totality of surrounding circumstances show that the proclamation was made as a political negotiating tactic, not a valid “emergency” as Congress intended under the NEA. 134. Because there is no national emergency across the southern border, President Trump’s February 15, 2019 proclamation of emergency violates the NEA. 135. Plaintiffs and their members will suffer irreparable injury if the emergency proclamation is not declared unlawful, and Plaintiffs and their members have no adequate remedy at law. SECOND CLAIM FOR RELIEF Unlawful Reallocation of Appropriated Funds Violation of 10 U.S.C. § 2808 136. Plaintiffs incorporate by reference the allegations in all preceding paragraphs. 137. Plaintiffs have a non-statutory right of action to enjoin and declare unlawful Presidential action that is ultra vires.
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138. By its plain language, 10 U.S.C. § 2808 does not provide an emergency source of funding for border wall construction. 10 U.S.C. § 2801(a) defines the term “military construction” as including “any construction, development, conversion, or extension or any kind carried out with respect to a military installation … or any acquisition of land or construction of a defense access road.” In turn, “military installation” means a “base, camp, post, station, yard, center, or other activity under the jurisdiction of the Secretary of a military department … .” The vast majority, if not all, of the border wall construction that would be funded by the proclamation occurs on lands that do not constitute a military installation, and the border wall is not in any event a military construction project, and thus is now lawfully eligible for emergency military construction reallocated appropriations.
139. In addition, the military construction authority is limited to emergencies “that require[] use of the armed forces,” and “that are necessary to support such use of the armed forces.” The dispute over border wall funding falls far short of an emergency requiring use of the armed services, and in no way supports the armed forces. The emergency proclamation would in fact turn this requirement on its head, by using the armed forces to engage on a domestic issue due to the President’s failure to achieve his policy goals through the legislative and constitutional framework of the appropriations process.
140. The broader context of Title 10 also demonstrates that military construction funds may not be directed to border wall construction. Title 10, Chapter 15 (Military Support for Civilian Law Enforcement Agencies) is a relatively new addition to the Armed Forces code addressing the specific circumstances and conditions under which the military may support domestic law enforcement agencies. Chapter 15 represents a departure from longstanding separation of military and domestic law enforcement functions, and thus its exceptions must be
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read narrowly and exclusively. The proclamation unlawfully provides for an emergency involving military support to domestic law enforcement agencies that has not been previously authorized by Congress.
141. The NEA only provides Presidential authority to invoke provisions under which Congress has previously considered and addressed the specific emergency at hand. Under Chapter 15, Congress has directly spoken to the circumstances in which the military may be called upon to support civilian law enforcement agencies, and limited those circumstances to emergency situations involving weapons of mass destruction, 10 U.S.C. § 282, and situations involving bombings of places of public use, government facilities, public transportation systems, and infrastructure facilities, 10 U.S.C. § 283.
142. In addition, Congress has not enacted any NEA emergency provisions under the Immigration Law Code (Title 8). Congress has, however, specifically considered the urgency of “an actual or imminent mass influx of aliens arriving off the coast of the United States, or near a land border,” and did not contemplate the involvement of the military, but instead focused on cooperation with local law enforcement officials, by allowing the Attorney General to authorize any State or local law enforcement officer to perform federal immigration duties 8 U.S.C. § 1103(a)(10).
143. Under the plain language and broader statutory structure of the military and immigration codes, the President’s invocation of 10 U.S.C. § 2808 to transfer emergency funds from military construction housing to border wall construction was unlawful Presidential action.
144. Plaintiffs and their members will suffer irreparable injury if the proclamation’s invocation of 10 U.S.C. § 2808 is not declared unlawful, and Plaintiffs and their members have no adequate remedy at law.
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THIRD CLAIM FOR RELIEF Unlawful Reallocation of Appropriated Funds
Violation of 10 U.S.C. § 284 145. Plaintiffs incorporate by reference the allegations in all preceding paragraphs. 146. Plaintiffs have a non-statutory right of action to enjoin and declare unlawful Presidential action that is ultra vires. 147. 10 U.S.C. § 284 (part of Chapter 15) does not provide an emergency source of funding for border wall construction, but is one example of the types of assistance the military may provide to civilian law enforcement agencies such as CBP in a non-emergency situation. See, e.g., 10 U.S.C. § 271; allow use of military equipment and facilities, id. § 272; train and advise civilian law enforcement officials, id. § 273; and maintain and operate equipment, id. § 274. 148. The non-emergency military support authorized under Chapter 15, including support under 10 U.S.C. § 284, can only be provided to domestic law enforcement agencies subject to several prior conditions. Such support, for example, may not be provided if it will adversely affect military preparedness. Id. § 276. In addition, the civilian law enforcement agency must normally reimburse Department of Defense for the costs of its support. Id. § 277. 149. For the above reasons, and for the same reasons described under Claim II, under the plain language and broader statutory structure of the military and immigration codes, the President’s invocation of 10 U.S.C. § 284 to transfer emergency funds from counterdrug activities to border wall construction was unlawful Presidential action. 150. Plaintiffs and their members will suffer irreparable injury if the proclamation’s invocation of 10 U.S.C. § 284 is not declared unlawful, and Plaintiffs and their members have no adequate remedy at law.
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FOURTH CLAIM FOR RELIEF Unlawful Reallocation of Appropriated Funds
Violation of 31 U.S.C. § 9705 151. Plaintiffs incorporate by reference the allegations in all preceding paragraphs. 152. Plaintiffs have a non-statutory right of action to enjoin and declare unlawful Presidential action that is ultra vires. 153. 31 U.S.C. § 9705 does not provide an emergency source of funding for border wall construction. 154. Even where the Secretary of Treasury has “discretion” to allocate funds, that discretion is limited to specified categories of funding, 31 U.S.C. § 9705(a)(2). None of those categories are applicable here. 155. For the above reasons, the announcement that funds from the Treasury Forfeiture Fund will be reprogrammed for border wall construction was unlawful Presidential action. 156. Plaintiffs and their members will suffer irreparable injury if the reprogramming of funds from 31 U.S.C. § 9705 is not declared unlawful, and Plaintiffs and their members have no adequate remedy at law.
FIFTH CLAIM FOR RELIEF Constitutional Violation
Violation of the Appropriations Clause of the U.S. Constitution Article I, Section 9, Clause 7
157. Plaintiffs incorporate by reference the allegations in all preceding paragraphs. 158. Article I, § 9, cl. 7 of the U.S. Constitution provides that “no Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” 159. Congress’s “power of the purse” has been described as the “most important single curb” on presidential authority, because it vests the powers of public revenue and public
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expenditures with the people’s representatives in Congress. Edward S. Corwin, The Constitution and What It Means Today 134 (13th ed. 1975); see Reeside v. Walker, 52 U.S. 272, 291 (1850) (interpreting the Appropriations Clause to require that “however much money may be in the Treasury at any one time, not a dollar of it can be used in the payment of any thing not thus previously sanctioned.”).
160. In the absence of applicable statutory authority on which to transfer the military construction and organized crime appropriations, the proclamation unlawfully reallocates money without satisfying the requirements of 10 U.S.C. § 2808, 33 U.S.C. § 2293, or 31 U.S.C. § 9705, and is thus violating the Appropriations Clause.
161. Plaintiffs and their members will suffer irreparable injury if this constitutional violation is not declared unlawful, and Plaintiffs and their members have no adequate remedy at law.
SIXTH CLAIM FOR RELIEF Constitutional Violation
Violation of the Take Care Clause of the U.S. Constitution Article II, Section 3
162. Plaintiffs incorporate by reference the allegations in all preceding paragraphs. 163. Article II of the U.S. Constitution provides that “[t]he executive Power shall be vested in a President,” and that he or she “shall take Care that the Laws be faithfully executed.” U.S. Constitution Article II, § 3. 164. The President has failed to comply with the requirements and limitations of law that the Executive Branch is required to “faithfully execute,” including the National Emergencies Act, 10 U.S.C. § 2808, 10 U.S.C. § 283, and 31 U.S.C. § 9705. Accordingly the President’s
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issuance of the emergency proclamation, as well as agency actions taken or directed to be taken under the emergency proclamation violate the Take Care Clause.
165. Plaintiffs and their members will suffer irreparable injury if this constitutional violation is not declared unlawful, and Plaintiffs and their members have no adequate remedy at law.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray that this Court: 1. Declare the Emergency Proclamation, and agency actions taken or directed to be taken under the proclamation, including the reallocation and expenditure of funds to construct a border wall pursuant to that proclamation, are unlawful under the National Emergencies Act; 2. Declare the Emergency Proclamation, and agency actions taken or directed to be taken under the proclamation, including the reallocation and expenditure of funds to construct a border wall pursuant to that proclamation, are unlawful under the National Emergencies Act and the invoked emergency provisions including 10 U.S.C. § 2808, 10 U.S.C. § 284, and 31 U.S.C. § 9705; 3. Declare the Emergency Proclamation, and agency actions taken or directed to be taken under the proclamation, including the reallocation and expenditure of funds to construct a border wall pursuant to that proclamation, are unconstitutional under the Article I Appropriations Clause and the Article II Take Care Clause; 4. Set aside and vacate the Emergency Proclamation, and agency actions taken or directed to be taken under the proclamation, including the reallocation and expenditure of funds to construct a border wall pursuant to that proclamation;
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5. Enjoin all reallocation of appropriated funds taken under the Emergency

Proclamation;

6. Retain jurisdiction to ensure compliance with the Court’s Orders;

7. Award Plaintiffs their reasonable costs of litigation, including reasonable

attorneys’ fees, expert fees, and costs; and

8. Grant such other and further relief as the Court may deem just and proper.

DATED: February 16, 2019

Respectfully submitted,

/s/ Brian Segee

Brian Segee (CA Bar No. 200795)(Pro Hac Vice
Pending)
CENTER FOR BIOLOGICAL DIVERSITY 660 S. Figueroa St., Suite 1000 Los Angeles, CA 90017 Tel: (805) 750-8852 Email: bsegee@biologicaldiversity.org

/s/ Tanya Sanerib

Tanya Sanerib (D.C. Bar No. 473506) CENTER FOR BIOLOGICAL DIVERSITY 2400 NW 80th Street, #146 Seattle, WA 98117 Tel: (206) 379-7363 Email: tsanerib@biologicaldiversity.org

Anchun Jean Su (D.C. Bar No. CA285167) Howard M. Crystal (D.C. Bar No. 446189) CENTER FOR BIOLOGICAL DIVERSITY 1411 K Street N.W., Suite 1300 Washington, D.C. 20005 Tel: (202) 849-8399 Email: jsu@biologicaldiversity.org hcrystal@biologicaldiversity.org

Jason C. Rylander (D.C. Bar No. 474995) Michael P. Senatore (D.C. Bar No. 453116) DEFENDERS OF WILDLIFE 1130 17th Street, NW

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Case 1:19-cv-00408 Document 1 Filed 02/16/19 Page 39 of 39 Washington, DC 20036 Tel: (202) 682-9400 x 145 Facsimile: (202) 682-1331 Email: jrylander@defenders.org Email: msenatore@defenders.org Anthony T. Eliesuson (IL Bar No. 6277427) ANIMAL LEGAL DEFENSE FUND 150 South Wacker Drive, Suite 2400 Chicago, IL 60606 Tel: (707) 795-2533 Email: aeliseuson@aldf.org Attorneys for Plaintiffs
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 Case 1:19-cv-00408-TNM Document 16 Filed 04/15/19 Page 1 of 50

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CENTER FOR BIOLOGICAL DIVERSITY, 378 N. Main Avenue Tucson, AZ 85701;
DEFENDERS OF WILDLIFE, 1130 17th Street, N.W. Washington, D.C. 20036;
ANIMAL LEGAL DEFENSE FUND, 525 E. Cotati Ave. Cotati, CA 94931;
Plaintiffs, v.
DONALD J. TRUMP, in his official capacity as President of the United States 1600 Pennsylvania Avenue, N.W. Washington, D.C. 20500;
PATRICK M. SHANAHAN, in his official capacity as acting Secretary of Defense Department of Defense 1000 Defense Pentagon Washington, D.C. 20301;
LIEUTENANT GENERAL TODD T. SEMONITE, in his official capacity as Commander and Chief of Engineers U.S. Army Corps of Engineers 441 G Street, N.W. Washington, D.C. 20314-1000;
KEVIN McALEENAN, in his official capacity as acting Homeland Security Secretary Department of Homeland Security 245 Murray Lane, S.W. Washington, D.C. 20528;

Case No. 1:19-cv-00408-TNM

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DAVID BERNHARDT, in his official capacity as Secretary of the Interior Department of the Interior 1849 C Street, N.W. Washington, D.C. 20240;
Defendants.
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF INTRODUCTION
1. On February 15, 2019, President Donald J. Trump issued a “Presidential Proclamation on Declaring a National Emergency Concerning the Southern Border of the United States” (hereinafter, “emergency proclamation”), pursuant to the purported authority of the National Emergencies Act (“NEA”), 50 U.S.C. § 1601 et seq. 84 Fed. Reg. 4949 (Feb. 20, 2019). On the same day, the administration issued a statement that it had identified approximately $6.7 billion in funds “available to build the border wall once a national emergency is declared and additional funds have been reprogrammed.” See Fact Sheet, White House Press Office, President Donald J. Trump’s Border Security Victory (Feb. 15, 2019).1 These funds would originate from three separate sources:
 “About $601 million from the Treasury Forfeiture Fund”;  “Up to $2.5 billion under the Department of Defense funds transferred for
Support for Counterdrug Activities (Title 10 United States Code, section 284”) (hereinafter, “counterdrug account”); and
1 Plaintiffs use the terms “border wall and” and “border fence” interchangeably. Regardless of construction method (steel bollard is currently the most commonly utilized), these large structures have far reaching environmental impacts.
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 “Up to $3.6 billion reallocated from Department of Defense military construction projects under the President’s declaration of a national emergency (Title 10 United States Code, section 2808).” Id.
2. Immediately after issuing the emergency proclamation, the President signed the Consolidated Appropriations Act, 2019, into law, which appropriates an additional $1.375 billion to U.S. Customs and Border Protection (“CBP”) for border wall construction in the Rio Grande Valley, Texas. Pub. L. No. 116-6; H.R.J. Res. 31, 116th Cong. § 230(a)(1) (enacted) (hereinafter, “2019 Consolidated Appropriations Act”).
3. The administration stated its intent to use these funds for border wall construction “sequentially and as needed” by source, in the following order: 2019 Consolidated Appropriations Act funds; Treasury Forfeiture Fund; counterdrug account funds; and emergency military construction funds. See Fact Sheet, Border Security Victory. Instead, the Department of Defense (“DoD”) has already identified, transferred, and obligated appropriated funds into, and from, the counterdrug account funds despite the fact funds appropriated under the 2019 Consolidated Appropriations Act have not been fully obligated.
4. Of the 58 times presidents have previously declared emergencies under the NEA, none involved using emergency powers to fund a policy goal after a president failed to meet that goal through foreign diplomacy (having Mexico pay for the wall) or the congressional appropriations process. This abuse of the congressional delegated NEA authority renders the proclamation unlawful.
5. Even under a validly declared emergency, the President must identify any available statutory authority an emergency proclamation triggers in order to lawfully transfer Congressionally appropriated funds. The NEA does not permit a president to take any action,
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but instead unlocks a president’s ability to invoke specific and existing emergency statutory authorities. Although the proclamation relies on military construction authority pursuant to 10 U.S.C. § 2808, both the plain language and broader statutory context of that provision demonstrate that it is inapplicable to border wall construction. As the President has failed to identify any statutory authority pursuant to the NEA related to border wall construction, the emergency transfer of appropriated military construction funds to border wall construction is unlawful.
6. The President’s order that DoD transfer appropriated funds into, and from, the counterdrug account, and the Defense Secretary’s and Army Corps of Engineers’ implementing actions to identify, transfer, and obligate appropriated funds to border wall construction, are also unlawful under the 2019 Consolidated Appropriations Act and DoD FY 19 Appropriations Act.
7. Defendants have failed to meet the duties applicable to lead and cooperating agencies for projects involving multiple Federal agencies under the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. The agencies’ failure to initiate and complete an environmental impact statement for the Trump administration’s border wall project will promote secrecy where there should be transparency; divest Plaintiffs, local communities and other stakeholders of opportunities for public notice, review, and comment; and allow significant environmental harm to occur that could be avoided or mitigated if a lawful NEPA process were undertaken.
8. By unlawfully transferring funds from the counterdrug support account and military construction appropriations to border wall construction, the emergency proclamation, and the Defense Secretary’s and Army Corps of Engineers’ implementing actions to identify, transfer, and obligate appropriated funds to border wall construction, also exceed President
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Trump’s constitutional authority by usurping Congress’s Article I Appropriation powers, U.S. CONST. art. I, § 9, and by violating the President’s obligation to “take Care that the Laws be faithfully executed.” U.S. CONST. art. II, § 3.
9. Implementation of the emergency proclamation, including the Defense Secretary’s and Army Corps of Engineers’ implementing actions to identify, obligate, and transfer appropriated funds to border wall construction, should be declared unlawful and enjoined.
JURISDICTION AND VENUE 10. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and can grant declaratory relief pursuant to 28 U.S.C. §§ 2201-2202, the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, and its equitable powers. 11. Venue properly vests in this Court pursuant to 28 U.S.C. § 1391(b) and (e), because the violations are occurring in this district, Defendants reside in this district, and a substantial part of the events or omissions giving rise to the claims have occurred in this district due to decisions made by the Defendants.
PARTIES 12. Plaintiff CENTER FOR BIOLOGICAL DIVERSITY (“the Center”) is a nonprofit conservation organization dedicated to the protection of endangered species and their habitats through science, policy, and environmental law. The Center is headquartered in Tucson, Arizona, with offices in Washington, D.C., and numerous other locations throughout the country, and an office in Baja California Sur, Mexico. The Center has more than 68,000 members and more than one million supporters.
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13. The Center has worked for more than two decades to oppose environmentally harmful border fencing along the U.S.-Mexico border generally, and within the specific Border Patrol sectors (San Diego, El Centro, Tucson, Yuma, El Paso, Laredo, and Rio Grande Valley) where border wall construction will occur under the emergency proclamation, and the Defense Secretary’s and Army Corps of Engineers’ implementing actions to identify, transfer, and obligate appropriated funds to border wall construction. The Center also has a long history of advocating for the protection of rare wildlife habitat and specific species that would be impacted by the transfer and obligation of appropriated funds to border wall construction including jaguar, ocelot, peninsular bighorn sheep, Sonoran pronghorn, Mexican gray wolf, Quino checkerspot butterfly, and coastal California gnatcatcher—and is directly responsible for the protection of numerous borderland species and their critical habitats under the Endangered Species Act. Center members, including but not limited to, Laiken Jordan and Michael Robinson, enjoy observing wildlife and their habitat in borderlands areas and enjoy recreating on public lands and in public areas that will be negatively affected by border wall construction.
14. Plaintiff DEFENDERS OF WILDLIFE (“Defenders”) is a nonprofit organization with nearly 1.8 million members and supporters across the nation. Defenders’ mission is to preserve wildlife and emphasize appreciation and protection for all species in their ecological role. Through advocacy, litigation, and other efforts, Defenders works to preserve species and the habitats upon which they depend. Defenders has been closely involved in policy and litigation matters associated with border wall construction along the U.S.-Mexico border for more than a decade. Defenders has field offices across the country, including in Santa Fe, New Mexico.
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15. Plaintiff ANIMAL LEGAL DEFENSE FUND (“ALDF”) is a nonprofit 501(c)(3) organization with more than 200,000 members and supporters, including thousands of whom live in states located on the U.S.-Mexico border, and at least hundreds of whom live in towns that are located in close proximity to border areas at issue. This includes Elizabeth Walsh, who resides in El Paso, Texas, near Sunland Park, New Mexico, and the U.S.-Mexico border. Ms. Walsh has been a member of ALDF since at least 2012. She routinely visits the border areas that will be impacted by the emergency proclamation for professional and recreational purposes. Similarly, ALDF member Robert Knaier resides in San Diego County, California, and regularly visits the border area in California for recreational purposes. ALDF represents its members interests by working to protect the lives of animals, including wildlife, through the legal system. This includes prior litigation challenging unlawful attempts to waive environmental and animal protection laws to facilitate border construction. ALDF is headquartered in Cotati, California.
16. Plaintiffs have organizational and membership-based interests in the preservation and conservation of specific areas of the U.S.-Mexico borderlands impacted by the President’s February 15, 2019 emergency proclamation and the transfer and obligation of appropriated funds to border wall construction. Plaintiffs and their members are harmed by the emergency proclamation, and the Defense Secretary’s and Army Corps of Engineers’ implementing actions to identify, transfer, and obligate appropriated funds to border wall construction. Plaintiffs’ members and staff live in or regularly visit the U.S.-Mexico borderlands region, including specific areas within the San Diego, El Centro, Tucson, Yuma, El Paso, Laredo, and Rio Grande Border Patrol sectors that will be impacted by the proposed border wall construction. These specific areas include numerous areas of federal, state, and local protected borderlands, including but not limited to Cleveland National Forest, Cabeza Prieta National Wildlife Refuge, Organ
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Pipe Cactus National Monument, Coronado National Forest, San Pedro Riparian National Conservation Area, San Bernardino National Wildlife Refuge, Organ Mountains-Desert Peaks National Monument, Lower Rio Grande Valley National Wildlife Refuge, and other lands administered by the U.S. Bureau of Land Management. Plaintiffs’ staff and members use these specific borderland areas for hiking; camping; viewing and studying wildlife; photography; and other scientific, vocational, and recreational activities; and they have specific intentions to continue to use and enjoy these areas frequently and on an ongoing basis in the future. Border wall construction resulting from the President’s emergency proclamation, and the Defense Secretary’s and Army Corps of Engineers’ implementing actions to identify, transfer, and obligate appropriated funds to border wall construction, and associated actions including stripping all vegetation within a 150-foot enforcement zone, road construction, and highintensity lighting, would harm Plaintiffs’ members and these protected interests in numerous ways. The harm would include immediate impacts, such as precluding future visitation of impacted areas, destroying wildlife habitat, and killing individual members of different wildlife species. Border wall construction would also result in longer term harm, by blocking connectivity between wildlife populations in U.S. and Mexico, harming the long term viability of those species, and in some cases, resulting in their extirpation from the United States. These harms go to Plaintiffs’ central organizational purposes.
17. Plaintiffs and their members are harmed by Defendants’ failure to engage in a full and legally adequate NEPA process, including the failure to consider alternatives and to adequately study and disclose the direct, indirect, and cumulative adverse ecological, aesthetic, and recreational impacts of border wall construction in the areas they enjoy. By commencing border wall construction activities, including identifying, transferring, and obligated appropriated
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funds to border wall construction, without adequately considering and disclosing the environmental impacts of the resulting activities, Defendants have deprived Plaintiffs and their members of their procedural rights, under NEPA, to a NEPA process that fully discloses the effects of, and alternatives to, Defendants’ actions. Defendants have also deprived Plaintiffs of the information that would be developed through an adequate NEPA document, which Plaintiffs would use to educate their members and other concerned members of the public about the environmental impacts of border wall construction. As a result, Plaintiffs must spend substantial resources pursuing alternative sources of information regarding Defendants’ activities. The harms to Plaintiffs’ interests could be partially or entirely avoided or mitigated if Defendants engaged in a NEPA process. Plaintiffs would certainly engage in that process in an effort to protect the wildlife species and habitat they have long endeavored to conserve as well as the natural areas in which they enjoy recreating.
18. Defendant DONALD J. TRUMP, President of the United States, is sued in his official capacity. President Trump issued the emergency proclamation on February 15, 2019.
19. Defendant PATRICK M. SHANAHAN, Acting Secretary of Defense, is sued in his official capacity. The February 15, 2019 emergency proclamation instructs the Defense Secretary to “take all appropriate actions” in support of the proclamation’s directives, including taking action to transfer military construction and counterdrug operations appropriated funds to border wall construction.
20. Defendant LIEUTENANT GENERAL TODD T. SEMONITE, Commander and Chief of Engineers of the U.S. ARMY CORPS OF ENGINEERS, is sued in his official capacity. The U.S. Army Corps of Engineers will receive transfers of appropriated funds, and implement DoD orders to obligate those funds to border wall construction.
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21. Defendant KEVIN McALEENAN, Acting Homeland Security Secretary, is sued in his official capacity. The February 15, 2019 emergency proclamation instructs the Homeland Secretary to “take all appropriate actions” in support of the proclamation’s directives.
22. Defendant DAVID BERNHARDT, Secretary of the Interior, is sued in his official capacity. The February 15, 2019 emergency proclamation instructs the Interior Secretary to “take all appropriate actions” in support of the proclamation’s directives.
LEGAL BACKGROUND A. The National Emergencies Act 23. The President’s statutory authority to declare a national emergency is governed by the 1976 NEA. 50 U.S.C. § 1601 et seq. The NEA was designed to limit presidential power and reclaim authority that had been delegated from the legislative branch. See Jules Lobel, Emergency Power and the Decline of Liberalism, 98 Yale L.J. 1385, 1412 (1989) (stating that NEA responded to “the twin disasters of Vietnam and Watergate” and the sense that “the pendulum had swung too far” in favor of the growth of executive power). 24. The enactment of the NEA terminated all existing states of emergency and established a uniform procedural framework for the future exercise of such powers. In addition, the NEA established other mechanisms intended to better ensure presidential accountability by establishing reporting and other requirements. 25. A proclamation issued under the NEA triggers the President’s authority to invoke existing Acts of Congress that authorize “the exercise, during the period of a national emergency, of any special or extraordinary power.” 50 U.S.C. § 1621(a); id. § 1631 (“When the President declares a national emergency, no powers or authorities made available by statute for use in the
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event of an emergency shall be exercised unless and until the President specifies the provisions of law under which he proposes that he, or other officers will act.”).
26. Accordingly, the scope of the President’s emergency powers is limited to legislative enactments under which Congress has specifically granted those powers in advance.
27. An emergency proclamation “shall immediately be transmitted to the Congress and published in the Federal Register.” Id. § 1621(a).
28. The NEA does not define the term “emergency.” 29. The common usage of the term “emergency” involves an element of suddenness and unexpectedness. Merriam-Webster, for example, states that an emergency is “an unforeseen combination of circumstances or the resulting state that calls for immediate action.” Similarly, Black’s Law Dictionary defines the word as a “sudden, unexpected, or impending situation.” 30. NEA’s legislative history shows that the emergency power conferred by Congress is not boundless. In testimony before the Committee on Government Operations on February 25, 1976, co-sponsor Senator Frank Church stated that “Congress should be forewarned that it is inherent in the nature of modern government that the Executive will seek to enlarge its power in small ways and large,” and advised that the president “should not be allowed to invoke emergency authorities or in any way utilize the provision of [the NEA] for frivolous or partisan matters, nor for that matter in cases where important but not ‘essential’ problems are at stake.” National Emergency Act: Hearing on H.R. 3884 Before the S. Comm. on Government Operations, 94th Cong. 7 (1976) (statement of Sen. Frank Church). 31. There are currently an estimated 123 statutory authorities that may be invoked by an emergency proclamation under the NEA. See BRENNAN CENTER FOR JUSTICE, A GUIDE TO EMERGENCY POWERS AND THEIR USE (Dec. 5, 2018),
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https://www.brennancenter.org/analysis/emergency-powers. These provisions address disparate issues including public health; land management; military and national defense; federal employees; asset seizure, control, and transfer; criminal prosecution and detainment powers; and international relations.
32. The NEA has been invoked at least 58 times from 1978-2012. Nearly all of the declared emergencies (49 instances) relate to sanctions or export restrictions. Four emergencies relate to weapons proliferation. The remaining five emergencies did not fit into any specific category and involved the 2009 swine flu outbreak, the September 11 terrorist attacks, vessel movement near Cuba, rough diamonds from Sierra Leone, and sale of Iraq petroleum.
33. None of the 123 emergency statutory authorities that may be invoked under an NEA proclamation address immigration or border wall construction.
B. Title 8 (Immigration), the Immigration and Nationality Act, and the “Mass Influx” and “Emergency Situation Refugees” Provisions
34. Congress has not established any NEA authorities under Title 8 (Immigration) of the United States Code.
35. The Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., “established a comprehensive federal statutory scheme for regulation of immigration and naturalization and set the terms and conditions of admission to the country and subsequent treatment of aliens lawfully in the country.” Chamber of Commerce v. Whiting, 563 U.S. 582, 587 (2011) (citation and internal quotation marks omitted).
36. While the INA does not contain any emergency provision triggered by the NEA, Congress did specifically consider the urgency of “an actual or imminent mass influx of aliens arriving off the coast of the United States, or near a land border.” 8 U.S.C. § 1103(a)(10). In such a circumstance, the INA does not contemplate a military response, but instead authorizes
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the Attorney General to deputize any State or local law enforcement officer with the authority to perform federal immigration duties.
37. The INA also addresses emergency refugee situations. Id. § 1157. In such a circumstance, the INA again does not contemplate a military response, but instead allows the President to grant admissions beyond the maximum established by Congress in order to address humanitarian concerns, and directs the President to consult with Congress and the Cabinet.
C. DHS’s Statutory Responsibility for Border Security and Border Fencing 38. The Department of Homeland Security (“DHS”) and its component agency CBP are domestic agencies charged with preventing the entry of terrorists, securing the borders, and carrying out immigration functions. Within CBP, the U.S. Border Patrol’s mission is to prevent illegal entry across approximately 7,000 miles of Mexican and Canadian international borders and 2,000 miles of coastal borders surrounding Florida and Puerto Rico. 39. Beginning with enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-546 (8 U.S.C. § 1103 note), Congress has periodically directed DHS to build fencing on the southern border. 40. As originally enacted, section 102(b) of IIRIRA required the completion of a triple-layer fence along a 14-mile stretch of border fencing in the San Diego sector where construction had begun in the early 1990s. 41. The Secure Fence Act of 2006, Pub. L. No. 109-367, 120 Stat. 2638, amended section 102(b) of IIRIRA to require DHS to construct at least two layers of reinforced fencing as well as physical barriers, roads, lighting, cameras, and sensors on five specific sections of the southern border totaling approximately 850 miles. 42. Shortly thereafter, the Consolidated Appropriations Act, 2008, Pub. L. No. 110-
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161, 121 Stat. 1844, 2090 (2007) again amended section 102(b) of IIRIRA by removing the specific location and double-layer fencing requirements, and instead directing DHS to construct not less than 700 miles of reinforced fencing where fencing would be most practical and effective.
D. Military Support for Civilian Law Enforcement Agencies (Title 10, Chapter 15)
43. The principle that the military cannot act as a domestic police force is deeply rooted in U.S. history and law. Under the Posse Comitatus Act, 18 U.S.C. § 1385, enacted in 1878, the use of “any part of the Army or Air Force as a posse comitatus” (i.e., deputized by civilian law enforcement officials to carry out the law) is unlawful, “except in cases of and under circumstances expressly authorized by the Constitution or Act of Congress.” The law’s reach was subsequently extended to the Marines and Navy.
44. Beginning in the early 1980s, Congress passed several Defense Authorization Acts that relaxed Posse Comitatus Act prohibitions by authorizing the use of military in specified domestic law enforcement activities. These provisions are codified under a new chapter of the U.S. Code (Title 10, Chapter 15, “Military Support for Civilian Law Enforcement Agencies”).
45. Under Chapter 15, Congress has not given the military emergency authority to assist in border wall construction or any other border security or immigration related task.
46. Chapter 15 authorizes the military to support civilian law enforcement officials in a non-emergency situation by, among other actions, sharing information, 10 U.S.C. § 271; allowing use of military equipment and facilities, id. § 272; providing training and advice, id. § 273; and maintaining and operating equipment, id. § 274.
47. Congress has specifically limited the military’s support of domestic law enforcement agencies in emergencies to circumstances involving weapons of mass destruction,
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id. § 282, and “situations involving bombings of places of public use, Government facilities, public transportation systems, and infrastructure facilities.” Id. § 283(a). These emergency support provisions are subject to detailed procedures, and they are limited to situations that (1) pose a serious threat to the interests of the United States and (2) involve violence causing or imminently threatening significant loss of civilian lives.
E. 10 U.S.C. § 284 48. The non-emergency military support authorized under Chapter 15 includes various types of support for counterdrug activities and activities to counter transnational organized crime, including the “[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.” 10 U.S.C. § 284(b)(7). In addition, section 284 separately authorizes “unspecified minor military construction project[s],” but limits the cost of any such project to $750,000. Id. § 284(b)(4), (i)(3). 49. The Defense Secretary must provide the appropriate committees of Congress with a detailed written and electronic notice of any proposed support under section 284 to civilian law enforcement agencies at least 15 days prior to providing such support. Id. § 284(h)(1). 50. Congress most recently appropriated $517,171,000 for counter-narcotics support as part of the drug interdiction and counter-drug activities account. Department of Defense and Labor, Health and Human Services, and Education Appropriations Act, 2019 and Continuing Appropriations Act, 2019, Pub. L. No. 115-245, Title VI (“Defense FY19 Appropriations”). 51. On information and belief, more than 90 percent of the fiscal year 2019 drug counterdrug account appropriations have been obligated, leaving approximately $80 million.
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52. The counterdrug account will be used to hold funds transferred from other DoD accounts up to a total of $2.5 billion, while the Army Corps of Engineers will have authority to obligate the funds out of the account in order to execute border wall construction projects.
F. Military Construction (Title 10, Chapter 169) 53. Military construction (“MILCON”) appropriations enable “the Secretary of Defense and the Secretaries of the Army, Air Force, and Navy to plan, program, design, and build the runways, piers, warehouses, barracks, schools, hospitals, child development centers, and other facilities needed to support U.S. military forces at home and abroad.” LYNN M. WILLIAMS, CONGRESSIONAL RESEARCH SERVICE, MILITARY CONSTRUCTION: PROCESS, OUTCOMES, AND FREQUENTLY ASKED QUESTIONS (May 16, 2018). 54. The Trump administration previously objected that the Defense FY19 Appropriations Act, signed into law September 2018, provided $8.1 billion for military construction rather than the $8.9 billion the administration requested. See Letter from Mick Mulvaney, Director, Office of Management and Budget, to Sen. Richard Shelby, Chair, Senate Comm. on Appropriations (July 18, 2018) (“By incrementally funding, rather than fully funding, military construction projects, the bill delays critical resources to complete high-priority projects initiated in 2019 and puts the burden on future budgets to make up the difference.”). 55. Congress has provided for an NEA emergency for military construction projects pursuant to 10 U.S.C. § 2808(a), which provides: In the event of a proclamation of war or the proclamation by the President of a national emergency in accordance with the National Emergencies Act (50 U.S.C. 1601 et seq.) that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces. Such projects may be undertaken only within the total amount of funds that have been appropriated for
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military construction, including funds appropriated for family housing, that have not been obligated. 56. Military construction activities have no relation to border wall construction and other support of DHS and other civilian law enforcement agencies, which are addressed under Title 10, Chapter 15, and thus the emergency provision is not available to border wall construction. G. Department of Defense Fiscal Year 2019 Authorizations and Appropriations 57. The John S. McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L. No. 115-232 (“Defense FY19 Authorizations”), includes authorizations for both the DoD generally (Division A) and MILCON (Division B) specifically. However, Congress addresses the two in separate appropriations bills. Defense FY19 Appropriations; Energy and Water, Legislative Branch, and Military Construction and Veterans Affairs Appropriations Act, 2019, Pub. L. No. 115-244 (“MILCON FY19 Appropriations Act”). 58. The Defense FY19 Authorizations Act includes a general transfer authority, under which the Defense Secretary may “transfer amounts of authorizations made available to the Department of Defense . . . for fiscal year 2019 between any such authorizations for that fiscal year (or any subdivisions thereof)” upon a determination that such transfer is in the national interest. Defense FY19 Authorizations § 1001(a)(1); Defense FY19 Appropriations § 8005. Except for transfers between military personnel, “the total amount of authorizations that the Secretary may transfer under the authority of this section may not exceed $4,500,000,000.” Defense FY19 Authorizations § 1001(a)(2); Defense FY19 Appropriations § 8005 (limiting general transfer authority to $4,000,000,000). 59. The Defense Secretary’s general transfer authority is not available for MILCON funds and is further subject to two limitations: general transfer authority funds (1) “may only be
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used to provide authority for items that have a higher priority than the items from which authority is transferred”; and (2) “may not be used to provide authority for an item that has been denied authorization by Congress.” Defense FY19 Authorizations § 1001(b)(1)-(2); Defense FY19 Appropriations § 8005.
60. “None of the funds available to the Department of Defense for any fiscal year for drug interdiction or counter-drug activities may be transferred to any other department or agency of the United States except as specifically provided in an appropriations law.” Defense FY19 Appropriations § 8045(a).
61. “None of the funds made available [under the FY19 Appropriations Act] or any other Act may be used to pay the salary of any officer or employee of any agency funded by this Act who approves or implements the transfer of administrative responsibilities or budgetary resources of any program, project, or activity financed by this Act to the jurisdiction of another Federal agency not financed by this Act without express authorization of Congress . . . .” Defense FY19 Appropriations § 8113.
H. 2019 Consolidated Appropriations Act 62. The 2019 Consolidated Appropriations Act appropriates $1.375 billion to DHS “for the construction of primary pedestrian fencing, including levee pedestrian fencing, in the Rio Grande Valley Sector.” Pub. L. No. 116-6; H.R.J. Res. 31, 116th Cong. § 230(a)(1) (enacted). 63. In addition to specifically rejecting the President’s budget request for $5.7 billion in border wall funding, Congress put specific limits on the funds it did appropriate under the 2019 Consolidated Appropriations Act.
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64. Congress limited border wall appropriations to construction in the Rio Grande Valley, and further, directed that “[n]one of the funds made available by this Act or prior Acts are available for construction of pedestrian fencing—(1) within the Santa Ana National Wildlife Refuge; (2) within the Bentsen-Rio Grande Valley State Park; (3) within La Lomita Historical park; (4) within the National Butterfly Center; or (5) within or east of the Vista del Mar Ranch tract of the Lower Rio Grande Valley National Wildlife Refuge.” Id. § 231.
65. The 2019 Consolidated Appropriations Act also requires DHS to “confer and seek to reach mutual agreement regarding the design and alignment of physical barriers” within the cities of Roma, Rio Grande City, Escobares, and La Gruilla, Texas, as well as the unincorporated community of Salineno, Texas. In addition, DHS is required to provide a public notice and comment period on proposed border wall construction within these areas, and to publish its response to such comments in the Federal Register. Id. § 232.
66. The 2019 Consolidated Appropriations Act provides that “[n]one of the funds made available in this or any other appropriations Act may be used to increase . . . funding for a program, project, or activity as proposed in the President’s budget request for a fiscal year until such proposed change is subsequently enacted in an appropriation Act, or unless such change is made pursuant to the reprogramming or transfer provisions of this or any other appropriations Act.” Id. § 739.
I. National Environmental Policy Act 67. NEPA is the “basic national charter for protection of the environment.” 40 C.F.R. § 1500.1(a). It was enacted with the ambitious objectives of “encouraging productive and enjoyable harmony between man and his environment . . . promoting efforts which will prevent or eliminate damage to the environment and biosphere and stimulating the health and welfare of
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man; and enriching the understanding of the ecological systems and natural resources important to the Nation . . . .” 42 U.S.C. § 4321.
68. In order to achieve these goals, NEPA contains several “action forcing” procedures, most significantly the mandate to prepare an environmental impact statement (“EIS”) on major Federal actions “significantly affecting the quality of the human environment.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348 (1989); 42 U.S.C. § 4332(2)(C).
69. The preparation and public circulation of EISs and other NEPA analyses promotes the statute’s broad environmental objectives in two primary ways: “It ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decision-making process and the implementation of that decision.” Methow Valley Citizens Council, 490 U.S. at 349.
70. NEPA requires that “agencies shall integrate the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values, to avoid delays later in the process, and to head off potential conflicts.” 40 C.F.R. § 1501.2; id. § 1502.5 (“An agency shall commence preparation of an [EIS] as close as possible to the time the agency is developing or is presented with a proposal . . . .”).
71. The Council on Environmental Quality (“CEQ”) was created to administer NEPA and has promulgated NEPA regulations, which are binding on all federal agencies. See 42 U.S.C. §§ 4342, 4344; 40 C.F.R. §§ 1500–1508.
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72. NEPA regulations mandate disclosure and consideration of direct, indirect, and cumulative environmental effects, with the underlying purpose of ensuring that the agency has taken a “hard look” at the environmental impacts of proposed actions. 40 C.F.R. §§ 1502.16, 1508.7, 1508.8, 1508.27(b)(7).
73. If more than one Federal agency “[p]roposes or is involved in the same action,” or “[i]s involved in a group of actions directly related to each other because of their functional interdependence or geographical proximity,” then a “lead agency shall supervise the preparation of an environmental impact statement.” Id. § 1501.5(a)(2).
74. The “potential lead agencies shall determine by letter or memorandum which agency shall be lead agency” and “shall resolve the lead agency question so as not to cause delay.” Id. § 1501.5(c). In the event of disagreement among the agencies, a multi-factor test determines lead agency designation. Id. § 1501.5(c)(1)-(5) (in descending order, factors to consider are magnitude of agency’s involvement, project approval/disapproval authority, expertise concerning the action’s environmental effects, duration of agency’s involvement, and sequence of agency’s involvement).
75. The lead NEPA agency “shall request the participation of each cooperating agency in the NEPA process at the earliest possible time.” Id. § 1501.6(a)(1). Conversely, each cooperating agency “shall participate in the NEPA process at the earliest possible time.” Id. § 1501.6(b)(1).
CONSTITUTIONAL BACKGROUND A. The Appropriations Clause 76. The U.S. Constitution provides that “no Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” U.S. CONST. art. I, § 9, cl. 7.
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77. The Appropriations Clause plays a critical role in the Constitution’s separation of powers among the three branches of government and the checks and balances between them.
78. The Clause has a “fundamental and comprehensive purpose . . . to assure that public funds will be spent according to the letter of the difficult judgments reached by Congress as to the common good, and not according to the individual favor of Government agents . . . .” Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 427-28 (1990); id. at 427 (without the Appropriations Clause, “the executive would possess an unbounded power over the public purse of the nation; and might apply all its moneyed resources at his pleasure.” (quoting 2 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1348 (3d ed. 1858))).
79. If a Court finds that the executive branch is spending money in violation of a spending provision, “it would be drawing funds from the Treasury without authorization by statute and thus violating the Appropriations Clause.” United States v. McIntosh, 833 F.3d 1163, 1175 (9th Cir. 2016).
B. Take Care Clause 80. The President “shall take Care that the Laws be faithfully executed . . . .” U.S. CONST. art. II, § 3. 81. The Take Care Clause places an obligation on the President and those under his supervision to comply with and execute clear statutory directives as enacted by Congress. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952) (“[T]he President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad.”).
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82. Under the Take Care Clause, the President and his subordinates may not create law by disregarding or repealing a validly enacted statute. See Clinton v. City of New York, 524 U.S. 417, 438 (1998) (“There is no provision in the Constitution that authorizes the President to enact, to amend, or the repeal statutes.”).
FACTUAL ALLEGATIONS 83. On June 16, 2015, in a campaign announcement speech, then Mr. Donald Trump stated: I would build a great wall. And nobody builds walls better than me, believe me. And I’ll build them very inexpensively. I will build a great great wall on our southern border and I’ll have Mexico pay for that wall. 84. On January 25, 2019, at the end of the longest government shutdown, President Trump stated: We really have no choice but to build a powerful wall or steel barrier. If we don’t get a fair deal from Congress, the government will either shut down on February 15 again or I will use the powers afforded to me under the laws and the Constitution of the United States to address this emergency. 85. On February 15, 2019, in announcing the issuance of an emergency proclamation, President Trump said:
So we have a chance at getting close to $8 billion—whether it’s $8 billion or $2 billion or $1.5 billion, it’s going to build a lot of wall. We’re getting it done. A. The February 15, 2019 Emergency Proclamation and Administration
Statement Identifying $6.7 Billion for Transfer to Border Wall Construction 86. On February 15, 2019, President Trump issued a “Presidential Proclamation on Declaring a National Emergency Concerning the Southern Border of the United States.” 87. The proclamation declares the “current situation at the southern border”— including “large-scale unlawful migration” and “sharp increases in the number of family units
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entering and seeking entry to the United States”—as a “national emergency.” It further states that “[b]ecause of the gravity of the current emergency situation, it is necessary for the Armed Services to provide additional support to address the crisis.”
88. Relying on the NEA, the proclamation invokes the emergency military construction authority provided under 10 U.S.C. § 2808 (“the construction authority provided in section 2808 of title 10, United States Code, is invoked and made available, according to its terms, to the Secretary of Defense and, at the discretion of the Secretary of Defense, to the Secretaries of the military departments.”).
89. Section 2 of the proclamation directs that the Defense Secretary (as well as the DHS Secretary and Secretary of the Interior) “shall take all appropriate actions, consistent with applicable law, to use or support the use of the authorities herein invoked, including, if necessary, the transfer and jurisdiction over border lands.”
90. According to the administration, the emergency proclamation makes $3.6 billion available from funds that have been appropriated to military construction projects. See Fact Sheet, Border Security Victory.
91. In addition to the emergency proclamation, the administration also identified approximately $3.1 billion in non-emergency funds that have been appropriated by Congress to other purposes to instead be directed to border wall construction, including $601 million from the Treasury Forfeiture Fund and $2.5 billion from the counterdrug account. Id.
B. The Nation’s Longest Government Shutdown, and the President’s Abuse of the National Emergencies Act as a Negotiating Tactic
92. President Trump first publicly threatened to issue an emergency proclamation on January 4, 2019, two weeks into the nation’s longest federal shutdown, which began at midnight on December 21, 2018, and continued until January 25, 2019.
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93. The shutdown was the culmination of months of disagreement between the President and Congress over the administration’s $5.7 billion demand for a border wall, and it was the central dispute in the final, “lame duck” days of the 115th Congress.
94. On December 11, 2018, President Trump met with House Minority Leader (Speaker to be) Nancy Pelosi and Senate Minority Leader Chuck Schumer, and on live television proclaimed, “I am proud to shut down the government for border security. I will take the mantle. I will be the one to shut it down.” The President had made numerous earlier statements suggesting he would relish shutting down the government if Congress did not provide all of the requested border wall funding. See, e.g., July 30, 2018 (“I have no problem doing a shutdown”); September 12, 2018 (“If it happens, it happens”).
95. On December 19, 2018, the Senate passed a continuing resolution providing funding to DHS and other agencies (Agriculture, Commerce, Justice, the Interior, State, Transportation, and Housing and Urban Development) until February 8, 2019, without border wall funding and with the understanding that President Trump supported the bill.
96. On December 20, 2018 (one day before government funding for DHS and the other agencies lapsed), after conservative TV pundits and the House Freedom Caucus criticized President Trump, the President flipped his position and announced he would not sign the Senate bill because it did not have any border wall funding. That afternoon, House Republicans passed a continuing resolution with $5.7 billion in border wall funds.
97. On December 21, 2018, President Trump encouraged Senator McConnell to abolish the filibuster in order to pass the $5.7 billion spending bill in the Senate. Acknowledging that this would not occur, President Trump mused that there was a “very good” chance of a
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government shutdown and that it could last a “very long time.” As the President predicted, the Senate voted down the House version of the bill and the government shut down at midnight.
98. Two weeks later, on January 4, 2019, President Trump for the first time publicly voiced his perceived authority to use the NEA for emergency border wall funding.
99. Between that date and the February 15, 2019 emergency proclamation, the President repeatedly and clearly stated his belief that he could use the NEA as a negotiating tactic with Congress. During this time, the President also vacillated on his ultimate intention to declare an emergency.
100. On January 9, 2019, President Trump stated that “I have an absolute right to do national emergency if I want,” and revealed that his “threshold” for invoking the emergency would be if he “can’t make a deal with people that are unreasonable.”
101. On January 10, 2019, the President said that he was “maybe, definitely” planning on invoking an emergency proclamation to build the border wall. President Trump explained that working with Democrats in Congress was “ridiculous” and that “[i]f we don’t make a deal, I would say 100 percent, but I don’t want to say 100 percent,” and that “[i]f we don’t make a deal, I would say it would be very surprising to me that I would not declare a national emergency and just fund it through the various mechanisms.”
102. On January 11, 2019, the President denied intent to immediately declare an emergency under the NEA, stating that “what we’re not looking to do right now is national emergency.”
103. On January 25, 2019, President Trump and Congress reached an agreement to end the 35-day partial federal shutdown, providing funding for DHS and other affected agencies for three weeks, through February 15, 2019.
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104. In his January 25 speech announcing the temporary deal to end the shutdown, the President again threatened to use the NEA as a negotiating tactic, stating, “[w]e really have no choice but to build a powerful wall or steel barrier. If we don’t get a fair deal from Congress, the government will either shut down on February 15 again or I will use the powers afforded to me under the laws and the Constitution of the United States to address this emergency.”
105. On January 29, 2019, Under Secretary of Defense for Policy John Rood testified to the House Armed Services Committee that if President Trump declared an emergency and directed the Pentagon to act, the military would build the wall “if we judged it to be a lawful order. And I assume it would be.”
106. On January 31, 2019, President Trump stated that “we’ve set the stage for what’s going to happen on February 15 [i.e., an emergency proclamation] if a deal is not made.”
107. On February 1, 2019, the President stated, “I think there’s a good chance that we’ll have to do” an emergency proclamation, while noting “tremendous obstruction by Democrats.”
108. The President would continue to threaten to use the NEA until issuing the emergency proclamation on February 15, 2019. At the press conference on February 15, 2019, announcing the emergency proclamation, however, the President disclaimed the need to declare a national emergency, stating, “I could do the wall over a longer period of time—I didn’t need to do this—but I would rather do it much faster. . . . I just want to get it done faster, that’s all.”
C. Congress Provided the Trump Administration with Funding for More Than 175 Miles of New or Replacement Border Wall Construction in Previous Appropriations Bills, Much of Which Remains Uncompleted
109. Congress has provided the Trump administration with nearly $3 billion in funding for border fence construction, much of which remains uncompleted.
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110. In response to the administration’s fiscal year 2017 budget amendment and request for supplemental appropriations, the Consolidated Appropriations Act, 2017, provided CBP with $341 million “to replace approximately 40 miles of existing primary pedestrian and vehicle border along the southwest border, using previously deployed and operationally effective designs, such as currently deployed steel bollard designs . . . .” Pub. L. No. 115-31, 131 Stat. 135, 434.
111. CBP directed those fiscal year 2017 funds to 40 miles of replacement wall construction in San Diego, El Centro, El Paso, and near Santa Teresa. The construction was expedited by a waiver of NEPA, the Endangered Species Act (“ESA”), and more than 30 additional laws pursuant to IIRIRA § 102(c). See 82 Fed. Reg. 35,984 (Aug. 2, 2017) (San Diego); 82 Fed. Reg. 42,829 (Sept. 12, 2017) (El Centro); 83 Fed. Reg. 3012 (Jan. 22, 2018) (Santa Teresa).
112. In March 2018, Congress provided the Trump administration with an additional $1.34 billion for secondary fencing replacement in the San Diego sector, new primary fencing in the Rio Grande Valley sector, and replacement of existing pedestrian fencing in any location along the southwest border. Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, div. F, tit. II, § 230(a)(1)-(4) (“DHS FY18 Appropriations ”).
113. CBP estimates that the DHS FY18 Appropriations will fund approximately 84 miles of border barrier construction.
114. DHS issued two waivers under IIRIRA § 102(c) to expedite border wall construction in the lower Rio Grande Valley sector—in Cameron County, Texas (83 Fed. Reg. 50,949 (Oct. 10, 2018)), and Hidalgo County, Texas (83 Fed. Reg. 51,472 (Oct. 11, 2018))— waiving NEPA, ESA, and more than 30 additional laws.
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115. DHS has issued two contracts to construct new border wall in the Rio Grande sector using FY 2018 appropriations, both located in Hidalgo County: FY18 RGV-003 (six miles) and FY18 RGV-02 (five segments, eight miles).
116. The construction on these two contracts will be the first commenced of the estimated 84 miles funded by the DHS FY18 Appropriations.
D. Congress Specifically Rejected the Trump Administration’s Border Wall Budget Request, While Placing Geographic and Other Restrictions on the Money Appropriated
117. On February 15, 2019, immediately after issuing the emergency proclamation, the President signed the 2019 Consolidated Appropriations Act, (H.R.J. Res. 31, Pub. L. No. 116-6), providing an additional $1.375 billion for border wall construction.
118. In enacting the 2019 Consolidated Appropriations Act, Congress specifically rejected the additional funding President Trump requested for CBP border wall priorities.
119. In addition, the 2019 Consolidated Appropriations Act (1) limits border wall construction to the Rio Grande Valley, § 230; (2) prohibits the funding of border wall construction in five specified areas, § 231; and (3) requires DHS to consult with local communities and provide for public notice and comment prior to border wall construction within five borderland cities in south Texas, § 232.
E. Agency Implementing Actions 120. On February 25, 2019, DHS wrote to DoD with a “Request for Assistance Pursuant to 10 U.S.C. § 284.” Memorandum from Christina Bobb, Exec. Sec’y, DHS, to Capt. Hallock N. Mohler Jr., Exec. Sec’y, DoD. The Memorandum requests that DoD assist in the implementation of the Trump administration’s border wall project by funding, planning, and executing the construction of eleven border wall segments (as well as associated roads and
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lighting) totaling approximately 218 miles. All 11 segments are proposed entirely on federal land in the states of California, Arizona, or New Mexico, including protected areas owned and administered by the Department of the Interior such as Cabeza Prieta National Wildlife Refuge, Organ Pipe Cactus National Monument, San Pedro Riparian National Conservation Area, and San Bernardino National Wildlife Refuge.
121. On March 25, 2019, Acting Defense Secretary Shanahan wrote to then DHS Secretary Nielsen approving the request, and directing the obligation of up to $1 billion from the counterdrug account for the U.S. Army Corps of Engineers to immediately plan and execute three border wall segments across 57 miles: Yuma Sector Projects 1 and 2 and El Paso Sector Project 1.
122. Acting Defense Secretary Shanahan’s March 25, 2019 approval letter states that “[a]s proponent of the requested action, CBP will serve as the lead agency for environmental compliance.”
123. On April 9, 2019, DoD announced that the Army Corps of Engineers had awarded two contracts totaling $1.178 billion for the construction of Yuma Sector Projects 1 and 2 and El Paso Sector Project 1.
124. More than 90 percent of the fiscal year 2019 appropriations for the counterdrug account have been obligated, leaving approximately $80 million. Accordingly, the vast majority of the $2.5 billion to be drawn from this account are being transferred from other DoD appropriations. The Defense Secretary’s March 25, 2019 authorization of $1 billion for the three border wall projects is being transferred from funds appropriated to a military personnel account into the counterdrug account, and then subsequently those funds are being obligated from that account by Army Corps of Engineers to private contractors.
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125. On April 11, 2019, Acting Defense Secretary Shanahan issued a memorandum for the Under Secretary of Defense (Comptroller)/Chief Financial Officer, directing the Comptroller to identify, by May 10, 2019, existing military construction projects of sufficient value to provide up to $3.6 billion to transfer for border wall construction pursuant to 10 U.S.C. § 2808. The Acting Secretary’s memorandum excludes family housing, barracks, or dormitory projects; projects that have already been awarded; and projects that have fiscal year 2019 award dates. The memorandum directs the Comptroller to be prepared to make the identified funds available if the Acting Secretary determines that military construction funds are necessary to address the proclaimed national emergency.
F. Defendants’ Actions Will Have Significant Environmental Impacts 126. The Trump administration previously explained that its $5.7 billion request for border wall construction will “fund construction of a total of approximately 234 miles of new physical barrier and fully fund the top 10 priorities in CBP’s Border Security Improvement Plan.” See Letter from Russell T. Vought, Acting Director, OMB, to Sen. Richard Shelby, Chairman, Sen. Appropriations Comm. (Jan. 6, 2019). 127. The administration’s “highest priority border wall miles” total 215 miles. See Press Release, DHS, Walls Work (Dec. 12, 2018). Border Patrol has broken down the 215 miles by sector. These highest priority areas are the San Diego sector (5 miles); El Centro sector (14 miles); Yuma sector (27 miles); El Paso sector (9 miles); Laredo sector (55 miles); and Rio Grande Valley sector (104 miles). 128. CBP has not clarified what, if any, overlap exists between the miles of border wall already funded and the 215 miles of “highest priority border wall.” However, new border wall mileage under the DHS FY 18 Appropriations and 2019 Consolidated Appropriations Act is
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limited to the Rio Grande Valley sector; thus, all of the construction within “highest priority areas” in the San Diego, El Centro, Yuma, El Paso, and Laredo sectors would not occur but for the unlawful appropriations transfers and obligations.
129. DHS’s February 25, 2019 request for DoD assistance proposes projects in addition to CBP’s previously identified “highest priority border wall” segments, including projects within the Tucson sector that would not occur but for the unlawful appropriations transfers and obligations.
130. If carried out, the border wall construction funded by the emergency proclamation, and the Defense Secretary’s and Army Corps of Engineers’ implementing actions to identify, transfer, and obligate appropriated funds to border wall construction, would directly harm Plaintiffs and their members. The environmental harm from this construction includes adverse impacts to: (1) threatened and endangered species listed under the Endangered Species Act, as well as their designated critical habitat; (2) lands under federal jurisdiction, including National Parks; National Forests; National Wildlife Refuges, National Monuments, and other lands within the National Landscape Conservation System (administered by the Bureau of Land Management); Wilderness areas; Wild and Scenic Rivers; and other areas of high environmental value; and (3) waters of the United States protected by the Clean Water Act.
131. Of particular concern to Plaintiffs’ core organizational interests is the fact that the unlawful identification, transfer, and obligation of appropriated funds for border wall construction would sever wildlife connectivity and cross-border movement between wildlife populations on either side of the U.S.-Mexico border. Every endangered jaguar seen in the United States during the species’ nascent recovery in the past two decades, for example, was born in Mexico.
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132. Given that approximately 700 miles of the southern border already has some form of fencing or “vehicle barriers” (passable to wildlife) on it, the cumulative and irreversible impact of additional border fencing on wildlife populations becomes ever greater with each additional mile of border wall constructed. Under the February 25, 2019 DHS request for DoD assistance, the transfer and obligation of appropriated funds will result in border wall construction within areas that currently contain vehicle barriers on protected federal lands in Arizona and New Mexico, including Cabeza Prieta National Wildlife Refuge, Organ Pipe Cactus National Monument, Coronado National Forest, San Pedro Riparian National Conservation Area, and San Bernardino National Wildlife Refuge. These protected lands contain essential habitat corridors and connectivity for endangered species with populations on both sides of the border, including jaguars. These corridors and connectivity will be served by the conversion of vehicle barriers to border wall.
133. The unlawful transfer and obligation of appropriated funds to border wall construction in the San Diego sector, which spans from the Pacific Ocean eastward to the Imperial County line, will harm Plaintiffs and their members. The San Diego sector is already heavily fortified, with primary fencing covering 46 of 60 miles, 30 percent of the miles of all secondary and tertiary fencing along the southwest border, and more than 300 miles of patrol roads.
134. The remaining unfenced areas within the San Diego sector are of high environmental value, and are generally mountainous and rugged, including unfenced areas within the San Ysidro Mountains and the complex geography of southeastern San Diego County. This includes two major tributaries of the Tijuana River (Cottonwood Creek and Tecate Creek)
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and designated critical habitat under the Endangered Species Act for the coastal California gnatcatcher, Quino checkerspot butterfly, and Arroyo toad.
135. The unlawful transfer and obligation of appropriated funds to border wall construction in the El Centro sector, which spans from the Jacumba Mountains in the west to the Imperial Sand Dunes in the east, will harm Plaintiffs and their members. The El Centro sector is already heavily fortified, with primary fencing or vehicle barriers covering 59 of its 70 miles, and 214 miles of patrol roads.
136. The areas within the El Centro sector that remain unfenced and/or have vehicle barriers passable to wildlife, are of high environmental value. The largest unfenced area is in highly rugged and mountainous terrain within the Jacumba Mountains and their sheer eastern escarpment. This area is designated critical habitat for the peninsular bighorn sheep pursuant to the Endangered Species Act.
137. The unlawful transfer and obligation of appropriated funds to border wall construction in the Yuma sector, which spans from the Imperial Sand Dunes east to the YumaPima County line in Arizona, will harm Plaintiffs and their members. The Yuma sector is already heavily fortified, with primary fencing or vehicle barriers covering 107 of 126 miles, as well as 209 miles of patrol roads.
138. The areas within the Yuma sector which remain unfenced and/or have vehicle barriers passable to wildlife, are of high environmental value, and located within the Barry M. Goldwater Air Force Range and Cabeza Prieta National Wildlife Refuge. The area includes essential habitat for endangered species, including the Sonoran pronghorn.
139. The unlawful transfer and obligation of appropriated funds to border wall construction in the Tucson sector, which spans from the Yuma-Pima County line in Arizona to
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the state’s boundary with New Mexico, will harm Plaintiffs and their members. The Tucson sector is already heavily fortified, with primary fencing or vehicle barriers covering 211 of 262 miles.
140. The areas within the Tucson sector that remain unfenced and/or have vehicle barriers passable to wildlife, are of high environmental value, including lands within Organ Pipe Cactus National Monument, Coronado National Forest, San Pedro Riparian National Conservation Area, and San Bernardino National Wildlife Refuge. The areas include designated critical habitat for endangered species, including the jaguar.
141. The unlawful transfer and obligation of appropriated funds to border wall construction in the El Paso sector, which includes the entire border of New Mexico with Mexico as well as two counties in far western Texas, harms Plaintiffs and their members. The El Paso sector is already heavily fortified, with primary fencing covering 166 of 180 miles, as well as 465 miles of patrol roads.
142. The areas within the El Paso sector that remain unfenced and/or have vehicle barriers passable to wildlife, are of high environmental value, including large sections of the remote New Mexico “bootheel.” This area contains designated critical habitat for jaguars and Chiricahua leopard frogs, and is renowned for its non-endangered wildlife including mule deer, mountain lions, antelope, and bison.
143. The unlawful transfer and obligation of appropriated fund to border wall construction in the Laredo sector, which spans from Webb County, Texas, to Zapata County, Texas, harms Plaintiffs and their members. The Laredo sector is lightly fortified, with primary fencing covering 1 of 171 miles, and 144 miles of patrol roads.
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144. The Laredo sector is of high environmental value, and like the entire southern Texas border, its international border is defined by the Rio Grande River.
145. The unlawful transfer and obligation of appropriated funds to as much as 104 miles of border wall construction in the Rio Grande Valley sector, though some of this mileage may overlap with border wall construction that was already been funded in prior appropriations bills, will harm Plaintiffs and their members. The Rio Grande Valley sector, which encompasses the Lower Rio Grande Valley, is heavily fortified in some areas, with primary fencing covering 55 of 316 river miles and 716 miles of patrol roads.
146. The Lower Rio Grande Valley is one of the most biologically diverse areas in North America and is particularly crucial for migratory birds. The remaining unfenced areas in the Rio Grande Valley sector are of high environmental value and include protected federal lands like the Lower Rio Grande Valley National Wildlife Refuge and Santa Ana National Wildlife Refuge, as well as essential habitat for endangered species such as ocelots.
CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF Unlawful Proclamation of Emergency Violation of the National Emergencies Act 147. Plaintiffs incorporate by reference the allegations in all preceding paragraphs. 148. Plaintiffs have a non-statutory right of action to enjoin and declare unlawful Presidential action that is ultra vires. 149. The President’s own statements and the totality of surrounding circumstances show that the President abused the authority granted to him to issue proclamations under the NEA, by unlawfully using that authority as a political negotiating tactic.
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150. Even if the President’s use of his proclamation as a negotiating tactic was lawful under the NEA, 10 U.S.C. § 2808 cannot be lawfully invoked to justify the emergency transfer of appropriated military construction funds to border wall construction.
151. A proclamation issued under the NEA triggers the President’s authority to invoke existing Acts of Congress that authorize “the exercise, during the period of a national emergency, of any special or extraordinary power.” 50 U.S.C. § 1621(a); id. § 1631 (“When the President declares a national emergency, no powers or authorities made available by statute for use in the event of an emergency shall be exercised unless and until the President specifies the provisions of law under which he proposes that he, or other officers will act.”).
152. Accordingly, the scope of the President’s emergency powers is limited to legislative enactments under which Congress has specifically granted those powers in advance.
153. 10 U.S.C. § 2808 does not provide authority to conduct an emergency transfer of appropriated military construction funds to border wall construction, and therefore the proclamation’s reliance on that provision is unlawful.
154. Plaintiffs and their members will suffer irreparable injury if the emergency proclamation is not declared unlawful. Plaintiffs and their members have no other adequate remedy at law.
SECOND CLAIM FOR RELIEF Unlawful Transfer of Funds Appropriated to Military Construction Violation of 10 U.S.C. § 2808 and 2019 Consolidated Appropriations Act 155. Plaintiffs incorporate by reference the allegations in all preceding paragraphs. 156. The APA requires courts to hold unlawful and set aside any agency action that is “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B)
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contrary to constitutional right, power, privilege, or immunity; [or] (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2).
157. The Defense Secretary’s and Army Corps of Engineers’ implementing actions to identify, transfer, and obligate funds appropriated for military construction to border wall construction are arbitrary, capricious, an abuse of discretion, and not in accordance with law, in contravention of the APA standards of review.
158. By its plain language, 10 U.S.C. § 2808 does not provide an emergency source of funding for border wall construction. 10 U.S.C. § 2801(a) defines the term “military construction” as including “any construction, development, conversion, or extension or any kind carried out with respect to a military installation … or any acquisition of land or construction of a defense access road.” In turn, “military installation” means a “base, camp, post, station, yard, center, or other activity under the jurisdiction of the Secretary of a military department . . . .” (emphasis added). The vast majority, if not all, of the border wall construction that the proclamation would fund occurs on lands that do not constitute a military installation, and in any event, the border wall is not a military construction project and thus is not lawfully eligible for emergency military construction transferred appropriations.
159. In addition, the military construction authority is limited to emergencies “that require[ ] use of the armed forces,” and “that are necessary to support such use of the armed forces.” 10 U.S.C. § 2801(a). The dispute over border wall funding hardly qualifies as an emergency requiring use of the armed services, and in no way supports the armed forces. The emergency proclamation would in fact turn this requirement on its head by using the armed forces to engage on a domestic issue due to the President’s failure to achieve his policy goals through the legislative and constitutional framework of the appropriations process.
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160. The broader context of Title 10 also demonstrates that military construction funds may not be directed to border wall construction. Title 10, Chapter 15 (Military Support for Civilian Law Enforcement Agencies) is a relatively new addition to the Armed Forces code addressing the specific circumstances and conditions under which the military may support domestic law enforcement agencies. Chapter 15 represents a departure from longstanding separation of military and domestic law enforcement functions, and thus its exceptions must be read narrowly and exclusively. The proclamation unlawfully provides for an emergency involving military support to domestic law enforcement agencies that has not been previously authorized by Congress.
161. The NEA only provides Presidential authority to invoke provisions under which Congress has previously considered and addressed the specific emergency at hand. Under Chapter 15, Congress has directly spoken to the circumstances in which the military may be called upon to support civilian law enforcement agencies, and it limited those circumstances to emergency situations involving weapons of mass destruction, id. § 282, and situations involving bombings of places of public use, government facilities, public transportation systems, and infrastructure facilities. Id. § 283.
162. In addition, Congress has not enacted any NEA emergency provisions under the Immigration Law Code (Title 8). Congress has, however, specifically considered the urgency of “an actual or imminent mass influx of aliens arriving off the coast of the United States, or near a land border,” and it did not contemplate the involvement of the military in those situations, but instead focused on cooperation with local law enforcement officials—allowing the Attorney General to authorize any State or local law enforcement officer to perform federal immigration duties. 8 U.S.C. § 1103(a)(10).
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163. The President’s invocation of 10 U.S.C. § 2808 is unlawful under the plain language of that provision, and broader statutory structure of the military and immigration codes, as is the Defense Secretary’s and Army Corps of Engineers’ implementing actions to identify, transfer, and obligate emergency funds from military construction housing to border wall construction.
164. The Defense Secretary’s and Army Corps of Engineers’ implementing actions to identify, transfer, and obligate up to $3.6 billion of appropriated military construction funds to border wall construction violates the 2019 Consolidated Appropriations Act, by exceeding and falling outside of the Act’s monetary and geographic limitations, respectively, on border wall funding. § 230(a).
165. The President’s invocation of 10 U.S.C. § 2808, and the Defense Secretary’s and Army Corps of Engineers’ implementing actions to identify, transfer, and obligate funds appropriated for military construction to border wall construction, violate the 2019 Consolidated Appropriations Act prohibition that “[n]one of the funds made available in this or any other appropriations Act may be used to increase . . . funding for a program, project, or activity as proposed in the President’s budget request for a fiscal year until such proposed change is subsequently enacted in an appropriation Act, or unless such change is made pursuant to the reprogramming or transfer provisions of this or any other appropriations Act.” 2019 Consolidated Appropriations Act, § 739.
166. Plaintiffs and their members will suffer irreparable injury if the President’s invocation of 10 U.S.C. § 2808, and the Defense Secretary’s and Army Corps of Engineers’ implementing actions to identify, transfer, and obligate funds appropriated for military
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construction to border wall construction, are not declared unlawful. Plaintiffs and their members have no other adequate remedy at law.
THIRD CLAIM FOR RELIEF (IN THE ALTERNATIVE TO THE SECOND CLAIM FOR RELIEF)
Unlawful Transfer of Funds Appropriated to Military Construction Violation of 10 U.S.C. § 2808 and 2019 Consolidated Appropriations Act 167. Plaintiffs incorporate by reference the allegations in all preceding paragraphs. 168. In the event the Court finds that the Defense Secretary’s and Army Corps of Engineers’ implementing actions are not subject to APA review, Plaintiffs have a non-statutory right of action to enjoin and declare those actions as ultra vires. 169. For the same reasons described in the Second Claim for Relief, the Defense Secretary’s and Army Corps of Engineers’ implementing actions to identify, transfer, and obligate funds appropriated for military construction to border wall construction is unlawful. 170. Plaintiffs and their members will suffer irreparable injury if the President’s invocation of 10 U.S.C. § 2808, and the Defense Secretary’s and Army Corps of Engineers’ implementing actions to identify, transfer, and obligate funds appropriated for military construction to border wall construction, are not declared unlawful.
FOURTH CLAIM FOR RELIEF Unlawful Transfer of Appropriated Funds Into, and From, the Counterdrug Account Violation of Defense FY19 Appropriations and 2019 Consolidated Appropriations Act
171. Plaintiffs incorporate by reference the allegations in all preceding paragraphs. 172. The APA requires courts to hold unlawful and set aside any agency action that is “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B)
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contrary to constitutional right, power, privilege, or immunity; [or] (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2).
173. The Defense Secretary’s and Army Corps of Engineers’ implementing actions to identify, transfer, and obligate up to $2.5 billion of appropriated funds into, and from, the 10 U.S.C. § 284 counterdrug account to border wall construction are arbitrary, capricious, an abuse of discretion, and not in accordance with law, in contravention of the APA standards of review.
174. The Defense Secretary’s implementing actions to identify and transfer up to $2.5 billion of appropriated funds into the counterdrug account violate the DoD FY19 Appropriations Act general transfer authority, as the transfer would be an unlawful “case where the item for which funds are requested has been denied by the Congress.” Defense FY Appropriations, § 8005.
175. The Defense Secretary’s and Army Corps of Engineers’ implementing actions to identify, transfer, and obligate up to $2.5 billion of appropriated funds into, and from, the counterdrug account to fund border wall construction violate the 2019 Consolidated Appropriations Act, by exceeding and falling outside of the Act’s monetary and geographic limitations, respectively, on border wall funding. 2019 Consolidated Appropriations Act, § 230(a).
176. The Defense Secretary’s and Army Corps of Engineers’ implementing actions to identify, transfer, and obligate up to $2.5 billion of appropriated funds into, and from, the counterdrug account to fund border wall construction violate the 2019 Consolidated Appropriations Act prohibition that “[n]one of the funds made available in this or any other appropriations Act may be used to increase . . . funding for a program, project, or activity as
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proposed in the President’s budget request for a fiscal year until such proposed change is subsequently enacted in an appropriation Act, or unless such change is made pursuant to the reprogramming or transfer provisions of this or any other appropriations Act.” 2019 Consolidated Appropriations Act, § 739; see also 10 U.S.C. § 2214(b).
177. Plaintiffs and their members will suffer irreparable injury if the Defense Secretary’s and Army Corps of Engineers’ implementing actions to identify, transfer, and obligate up to $2.5 billion of appropriated funds into, and from, the counterdrug account to border wall construction are not declared unlawful. Plaintiffs and their members have no other adequate remedy at law.
FIFTH CLAIM FOR RELIEF (IN THE ALTERNATIVE TO THE FOURTH CLAIM FOR RELIEF) Unlawful Transfer of Appropriated Funds Into, and From, the Counterdrug Account Violation of Defense FY 19 Appropriations and 2019 Consolidated Appropriations Act 178. Plaintiffs incorporate by reference the allegations in all preceding paragraphs. 179. In the event the Court finds that the Defense Secretary’s and Army Corps of Engineers’ implementing actions are not subject to APA review, Plaintiffs have a non-statutory right of action to enjoin and declare those actions as ultra vires. 180. For the same reasons described in the Fourth Claim for Relief, the Defense Secretary’s and Army Corps of Engineers’ implementing actions to identify, transfer, and obligate up to $2.5 billion of appropriated funds into, and from, the counterdrug account to border wall construction are unlawful. 181. Plaintiffs and their members will suffer irreparable injury if the Defense Secretary’s and Army Corps of Engineers’ implementing actions to identify, transfer, and
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obligate up to $2.5 billion of appropriated funds into, and from, the counterdrug account to border wall construction are not declared unlawful.
SIXTH CLAIM FOR RELIEF Failure to Carry Out Duties as Lead Agency and Cooperating Agencies in Preparation of
Environmental Impact Statement Violation of NEPA (40 C.F.R. § 1501.5 and § 1501.6) 182. Plaintiffs incorporate by reference the allegations in all preceding paragraphs. 183. The APA requires courts to hold unlawful and set aside any agency action that is “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; [or] (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2). 184. Defendants have failed to meet the duties placed upon lead and cooperating agencies by NEPA and its implementing regulations, in contravention of APA standards of review. 185. DHS has requested DoD to pay for border wall construction through the identification, transfer, and obligation of funds appropriated to other purposes. In addition, DHS has requested that DoD execute the border wall projects though the construction of border wall fencing, the construction of roads, and the installation of lighting. All of the requests received to date would result in border wall construction on federal lands, primarily protected federal lands owned and administered by the Department of the Interior. DoD has approved assistance for specific border wall construction segments within the Trump administration’s larger border wall project, including Yuma Sector Projects 1 and 2 and El Paso Project 1, and has identified, transferred, and obligated more than $1 billion into, and from, the counterdrug account to carry out these projects.
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186. DoD will identify up to $3.6 billion of funds appropriated for military construction by May 15, 2019, to be available for transfer and obligation to fund the Trump administration’s border wall project pursuant to the purported emergency authority of 10 U.S.C. § 2808.
187. NEPA requires that a lead agency be designated for the Trump administration’s border wall project, including the Defense Secretary’s and Army Corps of Engineers’ implementing actions to identify, transfer, and obligate appropriated funds to border wall construction, which is primarily planned for protected lands owned and administered by the Department of the Interior. 40 C.F.R. § 1501.5(a)(1)-(2). The lead agency “shall supervise the preparation of an environmental impact statement,” as more than one Federal agency “is involved in the same action,” and the border wall project involves a “group of actions directly related to each other because of their functional interdependence or geographical proximity.” 40 C.F.R. § 1501.5(a)(1)-(2).
188. The lead agency “shall [r]equest the participation of each cooperating agency in the NEPA process at the earliest possible time.” Id. § 1501.6(a)(1). Conversely, “[e]ach cooperating agency shall [p]articipate in the NEPA process at the earliest possible time.” Id. § 1501.6(b)(1).
189. Acting Secretary Shanahan’s March 25, 2019 letter approving the DHS February 25, 2019 request for assistance states that “CBP will serve as the lead agency for environmental compliance,” despite the fact that DoD and the Army Corps of Engineers are funding, implementing, and constructing the border wall projects.
190. Despite the DoD actions already taken to identify, transfer, and obligate funds appropriated to other purposes, the specific identification of border wall project areas, and the
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apparent imminence of project related construction, CBP has not initiated the NEPA process, in violation of its duties as lead agency to “supervise the preparation of an environmental impact statement,” and to “[r]equest the participation of each cooperating agency in the NEPA process at the earliest possible time.” 40 C.F.R. § 1501.5 (a)(1)-(2), § 1501.6(a)(1).
191. Conversely, DoD, the Army Corps of Engineers, and the Department of the Interior have acted in violation of their NEPA duties as cooperating agencies to “[p]articipate in the NEPA process at the earliest possible time.” Id. § 1501.6(b)(1).
192. On information and belief, CBP has no intention of conducting any NEPA review, but instead intends to issue waivers of NEPA and other laws pursuant to IIRIRA 102(c). Any such waivers would represent an unlawful bootstrapping of the waiver authority, which is directed to actions of DHS. See § 102(a) (“The Secretary of Homeland Security shall take such actions as may be necessary to install additional barriers and roads . . .”) (emphasis added). The border wall projects are being carried out (with little to no DHS involvement or expenditure) by DoD and Army Corps of Engineers, on lands owned and administered by the Department of the Interior.2 As more than one Federal agency is “involved in the same action” and the border wall projects are “a group of actions directly related to each other because of their functional interdependence or geographical proximity,” the Trump administration’s border wall project creates cooperating agency duties for DoD, the Army Corps of Engineers, and Department of the Interior that are beyond the scope of the IIRIRA waiver authority. 40 C.F.R. § 1501.5(a)-(c), § 1501.6.
193. Plaintiffs and their members will suffer irreparable injury if Defendants’ failures to meet their duties as lead agency and cooperating agencies under NEPA are not declared
2 Border wall projects are also proposed for lands within the Coronado National Forest, administered by the U.S. Forest Service, an agency of the Department of Agriculture. The Forest Service should also serve as a cooperating agency.
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unlawful, and unless those agencies are not thereby directed to immediately begin preparation of an environmental impact statement. Plaintiffs and their members have no other adequate remedy at law
SEVENTH CLAIM FOR RELIEF Constitutional Violation
Violation of the Appropriations Clause of the U.S. Constitution Article I, Section 9, Clause
194. Plaintiffs incorporate by reference the allegations in all preceding paragraphs. 195. Article I of the U.S. Constitution provides that “no Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” U.S. CONST. art. I, § 9, cl. 7. 196. Congress’s “power of the purse” has been described as the “most important single curb” on presidential authority, because it vests the powers of public revenue and public expenditures with the people’s representatives in Congress. EDWARD S. CORWIN, THE CONSTITUTION AND WHAT IT MEANS TODAY 134 (13th ed. 1975); see Reeside v. Walker, 52 U.S. 272, 291 (1850) (“However much money may be in the Treasury at any one time, not a dollar of it can be used in the payment of any thing not thus previously sanctioned.”). 197. The proclamation and agency implementing actions to identify, transfer, and obligate appropriated funds violate 10 U.S.C. § 2808, DoD FY19 Defense Appropriations Act, and 2019 Consolidated Appropriations Act. Congress has not appropriated the funds being transferred and obligated to border wall construction for that purpose, and limited the funds it has appropriated to border wall construction to projects within the Rio Grande Valley that are subject to several additional restrictions. Defendants’ unlawful transfer and obligation of appropriated funds for border wall construction violates the Appropriations Clause.
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198. Plaintiffs and their members will suffer irreparable injury if this constitutional violation is not declared unlawful. Plaintiffs and their members have no other adequate remedy at law.
EIGHTH CLAIM FOR RELIEF Constitutional Violation
Violation of the Take Care Clause of the U.S. Constitution Article II, Section 3
199. Plaintiffs incorporate by reference the allegations in all preceding paragraphs. 200. Article II of the U.S. Constitution provides that “[t]he executive Power shall be vested in a President,” and that he or she “shall take Care that the Laws be faithfully executed.” U.S. CONST. art. II, § 3. 201. The President has failed to comply with the requirements and limitations of law that the Executive Branch is required to “faithfully execute,” including the NEA, 10 U.S.C. § 2808, FY 19 Defense Appropriations Act, and 2019 Consolidated Appropriations Act. Accordingly, the President’s issuance of the emergency proclamation, and the Defense Secretary’s and Army Corps’ implementing actions to identify, transfer, and obligate appropriated funds to border wall construction, violate the Take Care Clause. 202. Plaintiffs and their members will suffer irreparable injury if this constitutional violation is not declared unlawful. Plaintiffs and their members have no other adequate remedy at law.
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PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray that this Court: 1. Declare the Emergency Proclamation unlawful under the National Emergencies Act; 2. Declare the Defense Secretary’s and Army Corps of Engineers’ implementing actions to identify, transfer, and obligate funds appropriated to other purposes in order to construct a border wall, are unlawful under 10 U.S.C. § 2808, Defense FY19 Appropriations, and 2019 Consolidated Appropriations Act; 3. Declare that Defendants’ failure to meet their respective duties as lead agency and cooperating agencies under NEPA as unlawful, and Order the immediate initiation of an environmental impact statement; 4. Declare the Emergency Proclamation, and the Defense Secretary’s and Army Corps of Engineers’ implementing actions to identify, transfer and obligate funds appropriated to other purposes in order to construct a border wall—are unconstitutional under the Article I Appropriations Clause and the Article II Take Care Clause; 5. Set aside and vacate the Emergency Proclamation, and the Defense Secretary’s and Army Corps of Engineers’ implementing actions to identify, transfer and obligate funds appropriated to other purposes in order to construct a border wall pursuant to that proclamation; 6. Enjoin all transfers and obligations of appropriated funds; 7. Retain jurisdiction to ensure compliance with the Court’s Orders; 8. Award Plaintiffs their reasonable costs of litigation, including reasonable attorneys’ fees, expert fees, and costs; and 9. Grant such other and further relief as the Court may deem just and proper.
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DATED: April 15, 2019

Respectfully submitted,
/s/ Brian Segee
Brian Segee (CA Bar No. 200795)(Pro Hac Vice) CENTER FOR BIOLOGICAL DIVERSITY 660 S. Figueroa St., Suite 1000 Los Angeles, CA 90017 Tel: (805) 750-8852 Email: bsegee@biologicaldiversity.org
/s/ Tanya Sanerib
Tanya Sanerib (D.C. Bar No. 473506) CENTER FOR BIOLOGICAL DIVERSITY 2400 NW 80th Street, #146 Seattle, WA 98117 Tel: (206) 379-7363 Email: tsanerib@biologicaldiversity.org
Anchun Jean Su (D.C. Bar No. CA285167) CENTER FOR BIOLOGICAL DIVERSITY 1411 K Street N.W., Suite 1300 Washington, D.C. 20005 Tel: (202) 849-8399 Email: jsu@biologicaldiversity.org
Jason C. Rylander (D.C. Bar No. 474995) Michael P. Senatore (D.C. Bar No. 453116) DEFENDERS OF WILDLIFE 1130 17th Street, NW Washington, DC 20036 Tel: (202) 682-9400 x 145 Facsimile: (202) 682-1331 Email: jrylander@defenders.org Email: msenatore@defenders.org
Anthony T. Eliesuson (IL Bar No. 6277427) ANIMAL LEGAL DEFENSE FUND 150 South Wacker Drive, Suite 2400 Chicago, IL 60606 Tel: (707) 795-2533 Email: aeliseuson@aldf.org
Attorneys for Plaintiffs

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 Case 1:19-cv-00408-TNM Document 54 Filed 04/02/20 Page 1 of 59

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CENTER FOR BIOLOGICAL DIVERSITY, et al.,
Plaintiffs, v. DONALD J. TRUMP, et al., Defendants.

Case No. 1:19-cv-00408 (TNM)

RIO GRANDE INTERNATIONAL STUDY CENTER, et al.,
Plaintiffs, v. DONALD J. TRUMP, et al., Defendants.

Case No. 1:19-cv-00720 (TNM)

MEMORANDUM OPINION A year ago, the President asked Congress to allocate $5.7 billion to build 253 miles of barriers along the Nation’s southern border. CBD Am. Compl. ¶ 93 (“CBD Compl.”), CBD ECF No. 16; RGISC Am. Compl. ¶ 53 (“RGISC Compl.”), RGISC ECF No. 33. After extensive negotiations and a 35-day Government shutdown, Congress responded by appropriating only $1.375 billion in the 2019 Consolidated Appropriations Act to construct a wall in one sector of the southern border. Pub. L. No. 116-6, div. A, 133 Stat. 13 (2019). The Administration then turned to alternative sources of funding. Plaintiffs—who include nonprofit organizations, residents along the southern border, and the Carrizo/Comecrudo Nation of Texas—filed two lawsuits claiming that the Administration’s

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alternative means of funding are unlawful. The Government moved to dismiss both cases under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Defs.’ CBD Mot. Dismiss (“Defs.’ CBD Mot.”), CBD ECF No. 22; Defs.’ RGISC Mot. Dismiss (“Defs.’ RGISC Mot.”), RGISC ECF No. 34. The Court held joint oral argument on these motions and now addresses the Government’s motions together.1 For the reasons explained below, the Court will grant in part and deny in part the Government’s Motions to Dismiss.
I. BACKGROUND At the beginning of 2019, the Department of Homeland Security (“DHS”) started reporting an “unprecedented” increase in illegal crossings along the United States’ southern border. See Letter from Secretary of Homeland Security Kirstjen M. Nielsen to the U.S. Senate and House of Representatives (Mar. 28, 2019), https://www.dhs.gov/sites/default/files/ publications/19_0328_Border-Situation-Update.pdf (“Nielsen Letter”). In 2018, DHS reported “apprehending 50,000–60,000 migrants a month.” Id. But in February 2019, it “apprehended or encountered more than 75,000, the highest in over a decade.” Id. The rapid surge of migrants included an increase in “vulnerable populations.” Id.; see also Press Release, U.S. Customs and Border Protection (“CBP”), CBP Releases Fiscal Year 2019 Southwest Border Migration Stats (Mar. 5, 2019), https://www.cbp.gov/newsroom/national-media-release/cbp-releases-fiscal-year-2019-southwestborder-migration-stats (reporting a 300% increase in 2019 of the number of family units crossing the southwest border). But CBP also reported that it arrested a higher number of criminal migrants with outstanding warrants and seized larger quantities of illegal drugs than in previous
1 The Court also received supplemental briefing from the parties on whether Plaintiffs met the zone of interests test for their claims. See CBD ECF Nos. 48, 49, 51; RGISC ECF Nos. 67, 69, 71. Although this Opinion discusses the two cases together, the Court has carefully considered the arguments and factual allegations made by the individual Plaintiffs and addresses them separately as necessary below.
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years. See U.S. Customs and Border Protection, CBP Enforcement Statistics FY 2019, https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics-fy2019.
This extraordinary influx of migrants placed an enormous strain on DHS’s resources. DHS reported that its “facilities [were] overflowing, agents and officers [were] stretched too thin, and the magnitude of arriving and detained aliens ha[d] increased the risk of life-threatening incidents.” See Nielsen Letter. This drain on DHS’s resources forced them to “begin releasing large numbers of aliens.” Id. It feared it was facing a “system-wide meltdown.” Id.
Still, Congress’s 2019 Consolidated Appropriations Act (“CAA”) allocated only $1.375 billion to construct a border wall within the Rio Grande Valley Sector. See CAA § 230(a). It attached geographic restrictions to this appropriation, CAA § 231, and required DHS to “confer” with “local elected officials” in affected areas “[p]rior to use of any funds” appropriated in the CAA “for the construction of physical barriers” within the cities in the Rio Grande Valley Sector, CAA § 232. Though this appropriation fell far short of the President’s request, he signed the CAA into law. See CBD Compl. ¶ 117; RGISC Compl. ¶ 65. But that was not all he did.
That same day, the President issued a Proclamation declaring that “a national emergency exists at the southern border of the United States.” See Presidential Proclamation on Declaring a Nat’l Emergency Concerning the S. Border of the United States (“Proclamation”), 84 Fed. Reg. 4949 (Feb. 20, 2019). The Proclamation explained that the southern border “is a major entry point for criminals, gang members, and illicit narcotics.” Id. Since the situation at the border has “worsened in certain respects in recent years,” the President proclaimed that the border situation “threatens core national security interests” and makes it “necessary for the Armed Forces to provide additional support to address the crisis.” Id. Based on this finding, the
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Proclamation authorized the Secretary of Defense to exercise his authority under 10 U.S.C. § 2808 to respond to the national emergency. Id.
Section 2808 is one of several statutes that the President may invoke upon declaration of a national emergency that invests executive officials with special authority to address that emergency.2 See 10 U.S.C. § 2808; 50 U.S.C. § 1631. Under § 2808, the Secretary of Defense “may undertake military construction projects” or authorize the military departments to undertake military construction projects “without regard to any other provision of law.” See 10 U.S.C. § 2808(a). But the statute contains two prerequisites: (1) that the national emergency “requires use of the armed forces”; and (2) that the military construction projects are “necessary to support such use of the armed forces.” Id. Following the Proclamation, the Secretary of Defense invoked his § 2808 powers to authorize use of $3.6 billion in “unobligated military construction funds” for eleven border wall projects in California, Arizona, New Mexico, and Texas. See Notice of Decision by the Department of Defense to Authorize Border Barrier Projects Pursuant to 10 U.S.C. § 2808 (“2808 Notice”) at 2, CBD ECF No. 37; RGISC ECF No. 49.3
The Administration also published a “fact sheet” identifying additional sources of funding for border wall construction. CBD Compl. ¶ 91; RGISC Compl. ¶ 69. This included:
a) $601 million from the Department of Treasury’s Treasury Forfeiture Fund (“TFF”), 31 U.S.C. § 9705(g)(4)(B), see CBD Compl. ¶ 1; RGISC Compl. ¶ 69; and
b) $2.5 billion from the Department of Defense’s (“DoD”) fund for “Support for Counterdrug Activities,” 10 U.S.C. § 284. The Defense Secretary transferred these funds
2 The Proclamation also granted executive officials authority under 10 U.S.C. § 12302 to order members of the Ready Reserve to active duty. See Proclamation; 10 U.S.C. § 12302. 3 All page citations refer to the pagination generated by the Court’s CM/ECF system.
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to the counterdrug account using his “general transfer” authority under § 8005 of the 2019 Department of Defense Appropriations Act. CBD Compl. ¶ 1; RGISC Compl. ¶ 89. Treasury Forfeiture Fund. The TFF collects proceeds from “seizures and forfeitures made pursuant to any law.” 31 U.S.C. § 9705(a). Section 9705 allows the Treasury to make specific uses of those proceeds. See id. Under the TFF, the Treasury Secretary may allocate “unobligated balances” remaining in the fund to any “obligation or expenditure in connection with the law enforcement activities of any Federal agency.” 31 U.S.C. § 9705(g)(4)(B). In January 2020, CBP announced that it would allocate $340 million of TFF funds to border barrier projects in the Rio Grande Valley Sector in Texas and another $261 million to “real estate planning activities for future year barrier construction . . . along the southwest border.” See Notice Regarding Use of the Treasury Forfeiture Funds 1–2, RGISC ECF No. 68 (“TFF Notice”). 10 U.S.C. § 284. Under § 284, the DoD can, when requested, “provide support for the counterdrug activities . . . of any other department or agency of the Federal Government,” 10 U.S.C. § 284(a), including “[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States,” 10 U.S.C. § 284(b)(7). In November 2019, DHS requested DoD help block eleven drug-smuggling corridors. Defs.’ RGISC Mot. at 35–36. DoD responded by approving six border barrier projects. Id. at 36. Department of Defense Appropriations Act, § 8005. The DoD funded these § 284 projects, in part, by authorizing transfer of $2.5 billion from other DoD appropriations to its counterdrug account through its general transfer authority under § 8005 of the 2019 Department of Defense Appropriations Act. See Defs.’ Notice of Statement 5, CBD ECF No. 26-2. This
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general transfer authority permits DoD to transfer funds to “higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress.” Pub. L. No. 115-245, 132 Stat. 2981 (2018).
The Center for Biological Diversity (“CBD”) and two other nonprofit organizations sued, arguing that the President’s Proclamation was ultra vires and that the Federal Defendants’ actions under §§ 2808 and 8005 violate the CAA, the Administrative Procedure Act (“APA”), and the Constitution, or alternatively, are ultra vires acts. See generally CBD Compl. The Rio Grande International Study Center (“RGISC”)—along with three residents who live along the border, the Carrizo/Comecrudo Nation, and three nonprofit organizations—separately sued alleging that the President and executive officials’ acts under the National Emergency Act, §§ 2808, 284, and 9705 were unconstitutional and ultra vires or, in the alternative, violations of the APA and the CAA.4 See generally RGISC Compl.
* * * Plaintiffs are not the first to raise these challenges. Twice in the last year, other federal district courts have granted injunctions against the Administration over similar allegations involving the border wall, only to have those injunctions swiftly stayed by higher courts. In the Northern District of California, the Sierra Club alleged that the Administration’s plans to fund border barrier construction “(1) violate Congress’s most-recent appropriations legislation, (2) are unconstitutional, (3) exceed Defendants’ statutory authority—in other words,
4 Unless otherwise noted, “CBD” refers to all Plaintiffs in Center for Biological Diversity, et al. v. Trump et al., 19cv-00408: Center for Biological Diversity, Defenders of Wildlife, and the Animal Legal Defense Fund. “RGISC” refers to all Plaintiffs in Rio Grande International Study Center, et al. v. Trump et al., 19-cv-00720: Rio Grande International Study Center, Ramiro R. Ramirez, Carrizo/Comecrudo Nation of Texas, Elsa Hull, Joseph Hein, Labor Council for Latin American Advancement, California Wilderness Coalition, and GreenLatinos.
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are ultra vires—and (4) violate NEPA [the National Environmental Policy Act].” Sierra Club v. Trump, 379 F. Supp. 3d 883, 908 (N.D. Cal. 2019). The district court granted Sierra Club a preliminary injunction on its claim “that the reprogramming of $1 billion under Section 8005 to the Section 284 account for border barrier construction [was] unlawful.” Id. at 918. The Government, it concluded, had failed to prove that the border wall was a project that met the statutory requirements of § 8005. Id. at 912–15.
But the court refused to grant a preliminary injunction against the DoD’s use of § 2808. Id. at 921–22. Sierra Club failed to show a likelihood of irreparable harm, since DoD had not yet identified where it would use § 2808 funds for border wall construction. Id. The court also rejected Sierra Club’s claim that DHS’s NEPA waivers were invalid, finding that DHS could waive NEPA requirements, even if funding for DHS projects came through the DoD. Id. at 922– 23. The district court later granted partial summary judgment for Sierra Club and issued an injunction on Sierra Club’s § 8005 claim. Sierra Club v. Trump, No. 19-cv-00892, 2019 WL 2715422, at *3 (N.D. Cal. June 28, 2019). It decided that its ruling “obviate[d] the need to independently assess the lawfulness of Defendants’ invocation of Section 284.” Id.
The Government sought an emergency stay of this injunction, which the Ninth Circuit, over the vigorous dissent of Judge N. Randy Smith, denied. Sierra Club v. Trump, 929 F.3d 670, 677 (9th Cir. 2019). The majority opinion characterized Sierra Club’s claim as “at its core, one alleging a constitutional violation[.]” Id. at 688–89. Sierra Club alleged that the Government had no authority under § 8005 to reprogram DoD funds for border wall construction. Id. at 689. If this proved true, it meant “Defendants [were] acting outside of any statutory appropriation and [were] therefore spending funds contrary to Congress’s appropriations decisions” in contravention of the Constitution’s Appropriations Clause. Id. In other words, a statutory
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violation was a de facto constitutional violation. Under this theory, the court concluded that Sierra Club had two avenues to challenge the Government’s actions: either “through an equitable action to enjoin unconstitutional official conduct” or through the APA.5 Id. at 694. The panel agreed with the district court’s conclusion that DoD could not reprogram funds through § 8005 and found that DoD’s attempt to “spend these funds therefore violates the Appropriations Clause[.]” Id.
In dissent, Judge Smith criticized the majority for “turning every question of whether an executive officer exceeded a statutory grant of power into a constitutional issue.” Id. at 707 (N.R. Smith, J., dissenting) (emphasis in original). According to Judge Smith, the panel invented a constitutional violation where none existed. Relying on Dalton v. Specter, 511 U.S. 462 (1994), he explained that a claim that an executive official violated a statute is statutory, not constitutional. Id. at 709–12. Sierra Club’s claim “entirely rises or falls on whether the DoD complied with the limitations in § 8005.” Id. at 710. To treat this as a constitutional violation “would turn our current system of administrative review on its head, directing courts in this circuit to deem unconstitutional any reviewable executive actions . . . that exceed a statutory grant of authority.” Id. at 712 (quoting Dalton, 511 U.S. at 472) (emphasis and alteration in original).
Treating the claim as statutory rather than constitutional, Judge Smith concluded that Sierra Club lacked a cause of action to challenge § 8005. Id. at 709. It had no implied cause of action under § 8005 because “there is no express suggestion that Congress intended a direct judicial remedy for a § 8005 violation[.]” Id. at 712 (cleaned up). It had no APA claim because
5 Since the Ninth Circuit characterized Sierra Club’s claim as constitutional, rather than statutory, the court found that Sierra Club fell within the zone of interests of the Appropriations Clause and did not consider whether Sierra Club could separately satisfy the zone of interests test for § 8005. Sierra Club, 929 F.3d at 703.
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Sierra Club fell outside the zone of interests of § 8005 since the statute only “protects Congress and those who would have been entitled to the funds as originally appropriated” and did not protect Sierra Club’s “aesthetic, recreational, and generalized environmental interests.” Id. at 715. Finally, even if Sierra Club could allege constitutional violations, Judge Smith concluded that it had no equitable constitutional cause of action because “an avenue for challenging the DoD’s reprogramming action exists under the APA—just not for these Plaintiffs.” Id. at 716. The court should thus not “resort to the extraordinary step of implying an equitable cause of action for these Plaintiffs.” Id.
On appeal, the Supreme Court disagreed with the Ninth Circuit’s decision and issued an emergency stay. Trump v. Sierra Club, 140 S. Ct. 1, 1 (2019). The Court found that the Government had “made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005.” Id. By granting the stay, the Court implicitly found a fair prospect that it would reverse the decision below.6
In another case, El Paso County argued that the Administration’s plan to fund border barrier construction “exceed[ed] the Executive Branch’s lawful authority under” the CAA, the Appropriations Clause, § 2808, § 284, and the National Emergency Act. El Paso Cty. v. Trump, 408 F. Supp. 3d 840, 844 (W.D. Tex. 2019). On summary judgment, the district court relied on the Supreme Court’s stay in Sierra Club to reject the County’s argument “that the DoD Secretary exceeded his statutory authority under § 284,” finding the claim “unviable.” Id. Still, it granted summary judgment for the County and issued an injunction because it concluded that the
6 For the Supreme Court to issue an emergency stay, the petitioner must establish “(1) a reasonable probability that [the] Court will grant certiorari, (2) a fair prospect that the Court will then reverse the decision below, and (3) a likelihood that irreparable harm will result from the denial of a stay.” Maryland v. King, 567 U.S. 1301 (2012) (cleaned up).
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Administration’s funding plan “violates the CAA generally and specifically violates § 739.”7 Id. at 856.
Again, the Government sought an emergency stay. El Paso Cty. v. Trump, No. 19-51144, slip. op. at 1 (5th Cir. Jan. 8, 2020). The Fifth Circuit granted the stay because, “among other reasons, [there was a] substantial likelihood that Appellees lack[ed] Article III standing.” Id. at 2.8
Plaintiffs now raise many of these same claims in their own challenge to the Government’s plan to fund border wall construction.
II. STANDARD OF REVIEW To survive a motion to dismiss under Rule 12(b)(1), a plaintiff must establish the predicates to jurisdiction, including standing, by a preponderance of the evidence. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). When ruling on this motion, a court must “assume the truth of all material factual allegations in the complaint and construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged.” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (cleaned up). If a court determines that it lacks jurisdiction for any claim, it must dismiss that claim. Fed. R. Civ. P. 12(b)(1), 12(h)(3). To establish jurisdiction, each plaintiff must meet the “irreducible constitutional minimum of Article III standing: injury-in-fact, causation, and redressability.” Shaw v. Marriott
7 Since resolution of the CAA claim granted the County full relief, the court did not address El Paso County’s other constitutional, NEA, and APA claims. El Paso Cty., 408 F. Supp. 3d at 856. 8 Just a few weeks ago, another district court granted the State of Washington’s request to enjoin the diversion of funding for construction of a naval base to the border wall. See State of Washington v. Trump, --- F. Supp. 3d ---, No. 2:19-cv-01502, 2020 WL 949934, at *1 (W.D. Wash. Feb. 27, 2020). It is unclear whether the Government will appeal this decision.
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Int’l, Inc., 605 F.3d 1039, 1042 (D.C. Cir. 2010) (internal quotations omitted). Individual plaintiffs must establish that “(i) they have suffered a concrete and particularized injury in fact, (ii) that was caused by or is fairly traceable to the actions of the defendant, and (iii) is capable of resolution and likely to be redressed by judicial decision.” Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 914 (D.C. Cir. 2015) (internal citations omitted). Organizations too may establish standing either on their own behalves, id. at 919, or on behalf of their members, Interstate Nat. Gas Ass’n of Am. v. FERC, 494 F.3d 1092, 1095 (D.C. Cir. 2007).
At the motion to dismiss stage, plaintiffs need only “state a plausible claim” that they meet the requirements for standing. Food & Water Watch, 808 F.3d at 913 (internal citations omitted). The “plaintiff’s burden to demonstrate standing grows heavier at each stage of the litigation.” Osborn v. Visa Inc., 797 F.3d 1057, 1063 (D.C. Cir. 2015).
Even if a court has jurisdiction, to survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient factual allegations that, if true, “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A court must “treat the complaint’s factual allegations as true and must grant the plaintiffs the benefit of all inferences that can be derived from the facts alleged.” L. Xia v. Tillerson, 865 F.3d 643, 649 (D.C. Cir. 2017) (cleaned up). But courts need not accept the truth of legal conclusions or “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). The court must consider only “the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [the court] may take judicial notice.” Hurd v. District of Columbia, 864 F.3d 671, 678 (D.C. Cir. 2017) (alterations in original).
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III. ANALYSIS A. Jurisdiction
1. All Plaintiffs, except the Labor Council for Latin American Advancement (“LCLAA”) and GreenLatinos, plausibly alleged standing.
Before proceeding to the merits of the case, the Court “must satisfy itself that the parties have standing to raise the challenges they advance.” Pub. Citizen v. FTC, 869 F.2d 1541, 1545 (D.C. Cir. 1989). The Government makes three concessions on Plaintiffs’ standing. First, in Rio Grande International Study Center v. Trump, the Government concedes that CalWild has “pleaded representational standing on behalf of members who recreate near El Centro Project 1” to challenge the Defense Secretary’s use of counterdrug funding under 10 U.S.C. § 284. Defs.’ RGISC Reply 23, RGISC ECF No. 47. Next, it admits that RGISC pleaded organizational standing to “challenge the construction of one of the § 2808 projects, Laredo Project 7.” Defs.’ Suppl. Br. 2–3 (“Defs.’ § 2808 Br.”), RGISC ECF No. 56. Finally, in Center for Biological Diversity v. Trump, the Government does not challenge Plaintiffs’ standing to bring any but their § 8005 claim. Defs.’ CBD Mot. at 51. The Court agrees with these concessions.
The Government challenges standing for all other Plaintiffs and claims. a. Hull, Ramirez, Hein, and the Carrizo/Comecrudo Nation of Texas have plausibly alleged standing.
RGISC’s Complaint alleges that the border wall—funded by the designated statutory authorities—will cause Plaintiffs harm. See RGISC Compl. ¶ 105–32. Joseph Hein, the owner of a ranch 20 miles downstream from Laredo, Texas, alleges that CBP’s plans to build the border wall in the Laredo Sector would “diminish [his] use and enjoyment of his land, reduce his property’s value, and harm his business” since the wall will either cut off access to his ranch’s sole water supply or “adversely impact the water quality.” RGISC Compl. ¶¶ 110–11. Elsa Hull, a homeowner downstream from Laredo, claims that the wall in the Laredo Sector will “cut
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off [her] access to the river, disrupt the wildlife she values observing, increase the risk of damage to her property due to flooding, diminish her use and enjoyment of her land, and reduce her property’s value.” Id. ¶¶ 112–13. Dr. Ramiro Ramirez and the Carrizo/Comecrudo Nation of Texas claim that barrier construction in Hidalgo County, Texas, will desecrate and cut off access to an ancestral cemetery. Id. ¶¶ 114–20. These Plaintiffs proffer that a favorable decision from this Court will grant them relief. See RGISC Opp’n at 24, 26.
The Government’s objections to RGISC Plaintiffs’ standing largely rest on the continued uncertainty surrounding the Government’s use of the funds from §§ 2808, 284, and the TFF. RGISC alleges that the Government will use funds designated for border barrier construction under these statutes to build barriers in sectors where Plaintiffs or Plaintiffs’ members live, work, or recreate. See RGISC Compl. ¶¶ 105–32. The Government does not disagree that the wall—if built as RGISC alleges—will injure Plaintiffs. Instead, it responds that there is no evidence that it will use those sources of funding to build the barriers on or near the land used by Plaintiffs. Defs.’ RGISC Mot. at 54–57; Defs.’ § 2808 Br. at 4–7; Mot. to Dismiss Hr’g Tr. 99:24–100:4 (Dec. 16, 2019).
But Plaintiffs point to authorities that suggest that the border barrier construction in their sectors cannot occur, as the Government argues, without use of the TFF, § 2808, and § 284. See RGISC Opp’n 23, RGISC ECF No. 39. Indeed, that has already proved true.
The Government’s designation and use of funds for border wall construction is constantly evolving. In fact, since the Government first moved to dismiss RGISC’s case, the Government has filed seven notices advising the Court of updated plans for border barrier funding and construction. See RGISC ECF Nos. 46, 49, 51, 55, 59, 68, 70. These changes affect Plaintiffs’ standing. The Government’s initial motion argued that RGISC and Joseph Hein lacked standing
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because the Defense Secretary had not yet decided whether to “undertake or authorize any barrier construction projects under § 2808, let alone a specific project in the Laredo Sector where RGISC operates and where Mr. Hein owns a ranch.” Defs.’ RGISC Mot. at 59. Two months later, the Government withdrew that argument after the Secretary authorized use of § 2808 funds in Laredo Project 7. Defs.’ § 2808 Br. at 2–3.
Similarly, at oral argument, the Government suggested the Court dismiss all claims related to use of the TFF, since CBP had not yet decided where to use those funds. See Hr’g Tr. at 99:20–100:9. But, one month later, CBP announced that it would use a portion of the funds in Hidalgo County, a half mile from the Carrizo/Comecrudo Nation’s ancestral cemetery. See TFF Notice at 2; RGISC Suppl. Br. 25 (“RGISC ZOI Br.”), RGISC ECF No. 69.
Plaintiffs’ bar at the motion to dismiss stage is low. They must only “plausibly allege” standing. See Food & Water Watch, 808 F.3d at 913. Given the quickly evolving nature of the challenged actions, the Court finds that these Plaintiffs have plausibly alleged that they will likely suffer injury because of the agency’s actions.
This may change at later stages of litigation. A “court’s determination that a plaintiff has established standing at the motion to dismiss stage by alleging sufficient facts in her pleadings is only the first step, because that finding does not obviate the court’s responsibility to ensure that the plaintiff can actually prove those allegations when one or both parties seek summary judgment.” Scenic Am., Inc. v. U.S. DOT, 836 F.3d 42, 48 (D.C. Cir. 2016) (emphasis in original); see also Cal. Cattlemen’s Ass’n v. U.S. Fish & Wildlife Serv., 369 F. Supp. 3d 141, 145 & n.3 (D.D.C. 2019).
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b. LCLAA and GreenLatinos lack standing. LCLAA and GreenLatinos failed to establish either representational standing or standing in their own right. Neither organization has pleaded a “concrete and demonstratable injury to its activities” to establish its own standing. See Food & Water Watch, Inc., 808 F.3d at 919 (cleaned up); Defs.’ RGISC Mot. at 60–64. And neither has alleged facts that any members are harmed by the border wall construction. See Defs.’ RGISC Mot. at 65–67. LCLAA and GreenLatinos do not disagree. Rather, they argue that because the Government has conceded that CalWild has standing, this “satisfies the standing inquiry for all of the organizational plaintiffs.” RGISC Opp’n at 30. In other words, they do not independently need to show standing. Not so. Though the D.C. Circuit has stated that “if one party has standing in an action, a court need not reach the issue of standing of other parties when it makes no difference to the merits of the case,” see Ry. Labor Execs.’ Ass’n v. United States, 987 F.2d 806, 810 (D.C. Cir. 1993) (emphasis added), that does not mean the Court must give all Plaintiffs an automatic “pass” when one meets the standing requirements. It means that the Court, in its discretion, need not analyze standing for each individual plaintiff when it will not affect the case. Id. Here, the Court declines to exercise that discretion since LCLAA and GreenLatinos have completely failed to establish organizational standing. These Plaintiffs will be dismissed from the case.
c. CBD Plaintiffs have standing to challenge the Defense Secretary’s action under § 8005.
The Government suggests that CBD Plaintiffs lack standing to challenge the Secretary of Defense’s § 8005 transfer of funds. Defs.’ CBD Mot. at 51–53. Plaintiffs cannot show an injury, the Government contends, because they have “no legally protected interest in the transferred funds” and the use of § 8005 “does not directly result in the border barrier
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construction Plaintiffs claim will injure them.” Id. at 52. Plaintiffs claim no interest in the transferred funds. CBD Opp’n 27, CBD ECF No. 31.
Their injury is based on the effects of the border wall construction, not on an entitlement to the DoD funds. They have undoubtedly pleaded that this construction will cause injury. See CBD Opp’n Ex. 3, CBD ECF No. 31-3. So the only question is whether the Defense Secretary’s § 8005 transfer caused this injury.
Plaintiffs’ injuries must be “fairly traceable” to Defendants’ actions. Lujan, 504 U.S. at 560. But that action need not be “the very last step in the chain of causation” for Plaintiffs to have standing. Bennett v. Spear, 520 U.S. 154, 168–69 (1997). While it is easier for Plaintiffs to establish standing when an action directly caused their injury, they may still establish causation by showing that “the injury does not result from ‘the independent action of some third party not before the court.’” Exhaustless Inc. v. FAA, 931 F.3d 1209, 1212 (D.C. Cir. 2019) (quoting Lujan, 504 U.S. at 560, 562).
CBD has met that burden. CBD alleges that the Defense Secretary used § 8005 to transfer $2.5 billion from other appropriated DoD funds to the DoD’s counterdrug account. See CBD Opp’n at 29 (citing Decl. of Kenneth Rapuano ¶¶ 4–5 (“First Rapuano Decl.”), Defs.’ CBD Mot. Ex. 1, CBD ECF No. 22-1; Second Decl. of Kenneth P. Rapuano ¶¶ 6–7 (“Second Rapuano Decl.”), CBD ECF No. 25-1). Then, the next day, he transferred these funds to another account to help DHS with barrier construction using § 284. Id. (citing First Rapuano Decl. ¶ 6; Second Rapuano Decl. ¶ 9). The funds that the Defense Secretary routed through the counterdrug account using § 8005 are directly traceable to the funds allocated for border wall construction under § 284. Not only was the same amount of money transferred in and out of the counterdrug account within one day, but the Secretary of Defense—who is a named Defendant—
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took both actions. See id. There is no concern that an independent party took the action that injured Plaintiffs. CBD Plaintiffs, then, have satisfactorily pleaded injury, causation, and redressability to establish standing at the motion to dismiss stage.9
2. The Court Lacks Jurisdiction Over Plaintiffs’ Ultra Vires Challenges to the President’s Emergency Declaration Because They Present Non-Justiciable Political Questions.
The President declared a national emergency under the National Emergency Act (“NEA”), 50 U.S.C. § 1621. See Proclamation. The NEA authorizes the President to declare an emergency to make certain “special or extraordinary” statutory powers available. 50 U.S.C. § 1621. CBD and RGISC each allege that the President’s Proclamation was ultra vires. According to RGISC, the Proclamation was unlawful because “no colorable emergency within the meaning of the NEA exists to invoke the statute.” RGISC Compl. ¶ 135. CBD, on the other hand, concedes that an emergency may exist, but argues that the President exceeded his authority under the NEA because he used that authority “as a political negotiating tactic.” CBD Compl. ¶ 149; see Hr’g Tr. at 27:21–25. Either way, the Government responds that to resolve these claims, the Court would need to answer a non-justiciable political question. Defs.’ CBD Mot. at 43–48; Defs.’ RGISC Mot. at 44–48. The Court agrees.
The political question doctrine is a “narrow exception” to the general rule that the “Judiciary has a responsibility to decide cases properly before it, even those it would gladly avoid.” Zivotofsky ex. rel. Zivotofsky v. Clinton, 566 U.S. 189, 194 (2012) (cleaned up). The doctrine precludes judicial review of claims that “revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.” Japan Whaling Ass’n v. Am. Cetacean Soc., 478 U.S. 221, 230
9 The Government does not argue that CBD’s § 8005 claim lacks redressability. The Court agrees that CBD has sufficiently shown that the equitable relief requested would redress its injuries. See generally CBD Opp’n Ex. 3.
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(1986). So the availability of judicial review turns not on whether the case concerns political decisions, but on whether the Court must weigh in on “policy choices and value determinations.” Id. The Court’s analysis, then, must account for not only what political action Plaintiffs challenge, but also what question each Plaintiff raises about that action. See bin Ali Jaber v. United States, 861 F.3d 241, 245 (D.C. Cir. 2017) (quoting Baker v. Carr, 369 U.S. 186, 211 (1962)).
In the D.C. Circuit, this analysis proceeds through a three-step inquiry. Al-Tamimi v. Adelson, 916 F.3d 1, 8 (D.C. Cir. 2019). First, the Court must identify the questions that Plaintiffs’ claims raise. Id. Second, the Court considers whether these issues present a political question by using the factors that the Supreme Court identified in Baker v. Carr. Id. And finally, the Court must determine whether these political questions are “inextricable from the case.” Id. In other words, could the Court resolve the merits of Plaintiffs’ claims without weighing in on the political questions?
Because CBD and RGISC take different approaches to challenge the same presidential action—potentially raising different questions about the President’s conduct—the Court considers each in turn.
a. RGISC’s challenge to the President’s Proclamation presents a nonjusticiable political question.
The NEA authorizes the President to “declare [a] national emergency.” 50 U.S.C. § 1621. RGISC insists no emergency exists, so the President had no authority to make his Proclamation. RGISC Compl. ¶ 135. RGISC’s claim raises one obvious question: was the President correct that a national emergency exists at the southern border?
The trouble is that this is a quintessential political question. Many Presidents have declared national emergencies for many reasons. For instance, President Clinton invoked the
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NEA to prohibit new investment in Burma because of the Burmese government’s “large-scale repression of the democratic opposition,” Exec. Order No. 13,047, 62 Fed. Reg. 29,301 (May 22, 1997), and to prohibit importation of “all rough diamonds from Sierra Leone” because of Sierra Leone’s “flagrant violation of the Lomé Peace Agreement,” Exec. Order 13,194, 3 C.F.R. § 13194 (Jan. 18, 2001). President George W. Bush and President Obama used the NEA to block the property of certain persons “contributing to the conflict in Côte d’Ivoire,” Exec. Order 13,396, 71 Fed. Reg. 7,389 (Feb. 10, 2006), “undermining democratic processes or institutions in Belarus,” Exec. Order 13,405, 71 Fed. Reg. 35,485 (June 20, 2006), “threatening the peace, security, or stability of Yemen,” Exec. Order 13,611, 3 C.F.R. § 13611 (May 16, 2012), and “contributing to the situation in Ukraine,” Exec. Order 13,660, 79 Fed. Reg. 13,493 (Mar. 10, 2014). President Bush also used the NEA to respond to Hurricane Katrina, Proclamation 7924, 70 Fed. Reg. 54,225 (Sept. 13, 2005), and the 9/11 attacks, Proclamation 7463, 3 C.F.R § 7463 (Jan. 1, 2002). Just last month, President Trump invoked the NEA to declare a national emergency because of the COVID-19 outbreak. Proclamation 9994, 85 Fed. Reg. 15,337 (Mar. 18, 2020). Indeed, the Nation remains under at least 32 national emergencies declared by this and former Presidents. See generally Emily E. Roberts, Declarations under the National Emergencies Act, Part 1: Declarations Currently in Effect (Congressional Research Serv., 2019), https://fas.org/sgp/crs/natsec/LSB10252.pdf.
Although presidential declarations of emergencies—including this Proclamation—have been at issue in many cases, no court has ever reviewed the merits of such a declaration. See, e.g., Defs.’ RGISC Mot. at 44 n.6 (collecting cases in which courts note that the President’s declaration of an emergency is unreviewable). In part, this is because the declaration of a national emergency raises questions about national security or foreign policy. And “[m]atters
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intimately related to foreign policy and national security are rarely proper subjects for judicial intervention,” since the Constitution commits those issues to the Executive and Legislative Branches. See Haig v. Agee, 453 U.S. 280, 292 (1981); see Baker, 369 U.S. at 217 (noting that a political question exists when there is a “textually demonstrable constitutional commitment of [an] issue to a coordinate political department”).
Baker’s second factor even more strongly suggests that this is a political question. The NEA provides no “judicially discoverable and manageable standards” to help the Court determine whether the situation at the border is a “national emergency.” See Baker, 369 U.S. at 217. The NEA, in relevant part, states:
With respect to Acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power, the President is authorized to declare such national emergency. Such proclamation shall immediately be transmitted to the Congress and published in the Federal Register. 50 U.S.C. § 1621. In other words, the statute simply allows the President to declare an emergency to activate special emergency powers created by Congress. Nothing else guides how the President should make this decision. RGISC suggests that determining whether the President exceeded his authority under the NEA is a simple matter of statutory interpretation—something that courts routinely do. RGISC Opp’n at 39. To be sure, statutory claims are “less likely to present a political question—both because statutory interpretation is generally committed to the judicial branch and because statutory language is likely to include judicially manageable standards.” Al-Timimi, 916 F.3d at 12 n.6. For instance, in Al-Timimi, the D.C. Circuit found that a claim under the Alien Tort Statute was justiciable even though the court would need to determine whether Israeli soldiers were committing genocide in a Palestinian village. Id. at 11. This question touched on intensely
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sensitive political issues. But the court noted that it was a “purely legal issue” capable of judicial review because “[g]enocide has a legal definition.” Id.
Though that claim was not barred by the political question doctrine, the court noted that a statutory question would raise a non-justiciable political question if it “require[d] the court to make an integral policy choice.” Id. at 12 n.6. For example, previously the Circuit refused to consider an Antiterrorism and Effective Death Penalty Act claim because the court would need to determine whether “terrorist activity ‘threatens the security of United States nationals or the national security of the United States,’ an element of a claim under the [Act].” Id. (citing ElShifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 843 (D.C. Cir. 2010)) (cleaned up).
Another time, the Circuit declined to resolve a statutory claim under the Federal Tort Claims Act when appellants asked it to determine “whether military action was ‘wrongful’”—an element of that statute. Id. (citing Schneider v. Kissinger, 412 F.3d 190, 196–97 (D.C. Cir. 2005)). In those cases, resolving the merits would have required the court to “reconsider[] the wisdom of discretionary decisions made by the political branches in the realm of foreign policy or national security.” See El-Shifa, 607 F.3d at 842. This the judiciary will not do.
So too here. This Court can no more determine whether illegal border crossings “threaten[] core national security interests and constitute[] a national emergency,” see Proclamation, than the D.C. Circuit could find that terrorist activity “threatens . . . the national security of the United States.” Al-Timimi, 916 F.3d at 12 n.6 (citing El-Shifa, 607 F.3d at 843) (cleaned up). Although RGISC’s ultra vires claim challenges the President’s statutory authority, Congress provided no guidance to help courts assess whether a situation is dire enough to qualify as an “emergency.” And with good reason. Cf. The Federalist No. 70, at 231 (Alexander Hamilton) (Benediction Classics, 2017) (“Energy in the Executive is a leading character in the
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definition of good government. It is essential to the protection of the community against foreign attacks[.]”). Whether a crisis reaches the point of a national emergency is inherently a subjective and fact-intensive inquiry. Any standard that the Court chose would require it to make “integral policy choices” about this country’s national security, immigration, and counterdrug policies.10
RGISC’s entire claim hinges on whether the Court agrees with the President or RGISC’s assessment of the situation along the southern border. Because this political question is inextricable from the merits of RGISC’s claim, the Court will dismiss RGISC’s NEA claim from Count I of its Complaint.
b. CBD’s challenge to the President’s Proclamation presents a nonjusticiable political question.
Center for Biological Diversity tries to sidestep the political question doctrine by conceding that the situation at the southern border may qualify as a “national emergency.” See CBD Opp’n at 48; Hr’g Tr. at 27:21–25. It claims the President’s Proclamation is ultra vires for a different reason: the President “unlawfully” used his authority under the NEA as a “political negotiating tactic.” See CBD Compl. ¶ 149. In other words, even if the President’s actions fully complied with the NEA’s requirements, his asserted reasons were an unlawful pretext for a politically motivated decision.
Though framed differently than RGISC’s argument, CBD’s claim presents a similar nonjusticiable political question. Rather than ask the Court to decide whether the President was correct in declaring a national emergency, CBD asks the Court to consider whether the President’s motives were pure in declaring the emergency. This again raises a political question
10 The Court will therefore not review any portion of the President’s emergency declaration, including his determination that the emergency “requires the use of the armed forces.” See Proclamation. “In military matters in particular, the courts lack the competence to assess the strategic decision to deploy force or to create standards to determine whether the use of force was justified or well-founded.” El-Shifa, 607 F.3d at 844.
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because of the “‘lack of judicially discoverable and manageable standards for resolving’ the question.” Zivotofsky, 566 U.S. at 197 (quoting Baker, 369 U.S. at 217).
The NEA nowhere mentions the President’s motivations and thus provides no standards for the Court to use to evaluate whether his motivations were “lawful.” Yet, citing Department of Commerce v. New York, 139 S. Ct. 2551 (2019), CBD suggests that the Court can invalidate an otherwise lawful action if the reasons justifying that action were a “sham.” Hr’g Tr. at 22. In New York, the Supreme Court engaged in two separate inquiries to determine whether, first, the Secretary of Commerce lawfully added a question to the census questionnaire, and, second, whether his reasons for doing so were pretextual. 139 S. Ct. at 2573. So, CBD argues, even if the emergency declaration itself were lawful, the President’s pretextual reasons could supply a separate basis for review. Hr’g Tr. 24:8–14.
What CBD fails to account for is that New York arose in the APA context. As the Supreme Court acknowledged in that case, there is a general rule against “inquiring into ‘the mental processes of administrative decisionmakers.’” 139 S. Ct. at 2573 (quoting Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 409 (1971)). “Judicial inquiry into executive motivation represents a substantial intrusion into the workings of another branch of Government and should normally be avoided.” Id. (cleaned up). Within the APA context, there is a “narrow exception to [this] general rule” where there is a “strong showing of bad faith or improper behavior,” since this behavior suggests arbitrary and capricious decisionmaking. Id. at 2573–74 (quoting Overton Park, 401 U.S. at 420) (emphasis added). But CBD cites nothing to suggest that this exception extends beyond the APA context to ultra vires review to allow the Court to second-guess the motives behind declarations of national emergencies.
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Just as RGISC is asking the Court to second-guess the President’s determination that a national emergency exists, CBD is asking the Court to investigate why the President invoked the NEA. As with RGISC’s claim, this not only requires the Court to draw standards for “lawful motivations” from whole cloth, but also forces the Court into the realm of discretionary policy decisions. See Baker, 369 U.S. at 217 (noting that a political question is present when the court cannot decide an issue “without an initial policy determination of a kind clearly for nonjudicial discretion”). These policy decisions are for the political, not judicial, branches to resolve. “For the judiciary to probe the reasoning which underlies this Proclamation would amount to a clear invasion of the legislative and executive domains.” See United States v. George S. Bush & Co., 310 U.S. 371, 380 (1940). The Court will therefore dismiss Count I of CBD’s Amended Complaint.
c. The President will be dismissed as a party. The Government argues that if the Court dismisses Plaintiffs’ NEA claims, President Trump should no longer be a party to this case. Hr’g Tr. at 18:6–12. Both sets of Plaintiffs named the President as a defendant and seek declaratory relief against him. CBD Compl. ¶ 18; RGISC Compl. ¶ 17. Granting direct relief against the President in any form is an extraordinary measure given the President’s unique position in our system of government. See, e.g., Swan v. Clinton, 100 F.3d 973, 978 (D.C. Cir. 1996) (“[I]njunctive relief against the President personally is an extraordinary measure not lightly to be undertaken.”). And the D.C. Circuit counsels that “[i]n most cases, any conflict between the desire to avoid confronting the elected head of a coequal branch of government and to ensure the rule of law can be successfully bypassed, because the injury at issue can be rectified by injunctive relief against subordinate officials.” Id.
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Plaintiffs admit that is the case here. Though CBD and RGISC could only obtain equitable relief for their NEA claims by suing the President, both parties agree that injunctive and declaratory relief for all their other claims will be available through other Defendants. Hr’g Tr. at 13, 34.
RGISC suggests that despite these alternative avenues to relief, the Court should decline dismissing the President at the motion to dismiss stage. Hr’g Tr. at 33. The Court disagrees.
The Supreme Court has noted repeatedly in the qualified immunity context that officers against whom there is no viable claim should be dismissed at the “earliest possible stage in litigation,” Hunter v. Bryant, 502 U.S. 224, 227 (1991), so they can avoid the “unwarranted demands customarily imposed upon those defending a long drawn out lawsuit,” Siegert v. Gilley, 500 U.S. 226, 232 (1991). Pretrial matters, such as discovery, should be avoided if possible, since “inquiries of this kind can be peculiarly disruptive of effective government.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 817 (1982)).
Though the doctrine of qualified immunity does not apply here, the principles undergirding it are instructive. The doctrine counsels against retaining executive officials in a lawsuit longer than necessary because litigation disrupts “effective government.” Id. Here also, retaining the President as a defendant, even when all Plaintiffs agree that they can obtain the relief they seek through the other Defendants, prolongs these disruptive effects for no reason. Since Plaintiffs may obtain relief for all remaining claims through the other Defendants, the Court will dismiss the President as a party to this lawsuit. See Doe v. Trump, 319 F. Supp. 539, 542 (D.D.C. 2018) (dismissing the President before summary judgment because dismissal would “have little or no substantive effect on this litigation” since “Plaintiffs [could] still obtain all of the relief that they [sought] from the other Defendants”).
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3. The Court Lacks Jurisdiction Over Plaintiffs’ NEPA Claims Because the Secretary of Homeland Security Waived NEPA for These Barrier Projects.
The National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq., is the “basic national charter for protection of the environment.” 40 C.F.R. § 1500.1(a). CBD and RGISC allege that the Government violated NEPA by failing to conduct environmental impact reports, solicit public engagement, and properly coordinate between agencies to engage in the “NEPA process.” See CBD Compl. ¶¶ 182–93; RGISC Compl. ¶¶ 163–68. The Government responds that the Court lacks jurisdiction to hear CBD and RGISC’s claims because the Secretary of Homeland Security waived NEPA for the challenged border projects. Defs.’ CBD Mot. at 53–55; Defs.’ RGISC Mot. at 51–52.
The Court agrees with the Government here. The Secretary waived NEPA for the challenged border wall construction. And because he had the authority to do so under the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”),11 the Court will dismiss Plaintiffs’ NEPA claims. See N. Am. Butterfly Ass’n v. Nielsen, 368 F. Supp. 3d 1, 8 (D.D.C. 2019) (“It is undisputed that the DHS Secretary’s October 2018 Waiver Determination, if validly exercised, deprives the Court of jurisdiction to hear plaintiff’s NEPA . . . claims.”); see also In re. Border Infrastructure Envtl. Litig., 915 F.3d 1213, 1221 (9th Cir. 2019) (“[A] valid waiver of the relevant environmental laws under section 102(c) is an affirmative defense to all the environmental claims.”).
Through IIRIRA, Congress tasked the Secretary of Homeland Security to “take such actions as may be necessary” to install “physical barriers” on the border “to deter illegal crossings in areas of high illegal entry into the United States.” IIRIRA § 102(a). To allow DHS
11 Pub. L. No. 104-208, Div C, Title I, Subtitle A, § 102(a)–(c), 110 Stat. 3009–554 (1996); Pub. L. No. 109–13, Div B, Title I, § 102, 119 Stat. 306 (2005); Pub. L. No. 109–367, § 3, 120 Stat. 2638 (2006); Pub. L. No. 110–61, Div E, Title V, § 564, 121 Stat. 2090 (2007).
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to undertake construction expeditiously, Congress gave the Secretary “authority to waive all legal requirements” when he determines it is “necessary to ensure expeditious construction of the barriers[.]” IIRIRA § 102(c)(1).
DHS requested that the DoD, under § 284, assist with its barrier construction projects, finding this “necessary” to install barriers along the southern border. See First Rapuano Decl. ¶ 3. Later, relying on his authority under IIRIRA, the Secretary of Homeland Security waived NEPA for those barrier projects. See Determination Pursuant to Section 102 of IIRIRA, 84 Fed. Reg. 17,185–87 (Apr. 24, 2019); 84 Fed. Reg. 21,798–801 (May 15, 2019).
CBD and RGISC contend that these waivers were ineffective because IIRIRA permits the Secretary of Homeland Security to waive “all legal requirements” only for “construction of the barriers . . . under this section.” See RGISC Opp’n at 52–53 (citing IIRIRA § 102(c)); CBD Opp’n at 58 (same). Here, they say, DHS is not building barriers under IIRIRA (i.e., “this section”). See RGISC Opp’n at 53; CBD Opp’n at 58. Rather, DoD is constructing barriers under § 284. See RGISC Opp’n at 53; CBD Opp’n at 58.
That is not fully accurate. DHS is building barriers pursuant to IIRIRA. So the DHS Secretary is allowed to waive NEPA. To be sure, DHS is not working alone to erect the barriers envisioned under IIRIRA. But nothing in the text of the statute orders that it do so. The statute grants DHS broad authority to “take such actions as may be necessary” to construct the barriers, see IIRIRA § 102(a)—which, here, included requesting assistance from DoD. Congress permits DoD to aid other agencies, like DHS, in constructing “fences . . . to block drug smuggling corridors across international boundaries of the United States.” 10 U.S.C. § 284(a), (b)(7).
When these two interests coincide—such as in the sectors where the agencies are using § 284 funding—nothing in IIRIRA prohibits agency cooperation. Since DHS is constructing
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barriers under IIRIRA, though with the aid of DoD, the Secretary was well within his statutory authority to waive NEPA’s requirements. The Court thus lacks jurisdiction to review CBD and RGISC’s NEPA claims. Accord N. Am. Butterfly Ass’n, 368 F. Supp. 3d at 8.
B. APA Claims Since the Court has jurisdiction to hear Plaintiffs’ remaining claims, the Court now turns
to the Government’s contention that CBD and RGISC lack a cause of action under the APA. First, the Government argues that Plaintiffs’ § 2808 and § 9705 claims fail to meet the APA’s threshold requirements for review of agency action. Next, the Government suggests that CBD and RGISC fall outside the zone of interests of all their statutory claims. Finally, the Government urges that Plaintiffs fail to state a claim under the APA. The results here are a mixed bag—the Court will dismiss some of Plaintiffs’ APA claims, but others may proceed.
1. Plaintiffs’ Claims Generally Meet the APA’s Threshold Requirements for Review of Agency Action.
Agency action is presumptively reviewable under the APA unless a statute precludes judicial review, the action “is committed to agency discretion by law,” or the action is not final. See Transactive Corp. v. United States, 91 F.3d 232, 236 (D.C. Cir. 1996) (citing 5 U.S.C. § 701(a)(1), (a)(2)). The Government does not contest that Plaintiffs may use the APA to challenge the agencies’ actions under § 284, § 8005, or the CAA (even if it believes these APA claims fail for other reasons, see infra III.B.2 & III.B.3). But it does claim that Plaintiffs cannot use the APA to challenge Defendants’ authorization of border wall construction under § 2808 and § 9705 because those decisions were “committed to agency discretion by law.”12 See Defs.’ CBD Mot. at 57–60; Defs.’ RGISC Mot. at 69–73.
12 The Government withdrew its argument that no “final agency action” existed for funding under § 2808 once the Defense Secretary allocated those funds to Laredo Sector construction. See Defs.’ § 2808 Br. at 3.
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Consider first § 2808. When a national emergency “requires the use of the armed forces,” § 2808 allows the Secretary of Defense to “undertake military construction projects” that “are necessary to support such use of the armed forces.” 10 U.S.C. § 2808(a). The Government zeroes in on the phrase “necessary to support . . . armed forces.” Defs.’ CBD Mot. at 57–59; Defs.’ RGISC Mot. at 69–70. It suggests the Court has no “standard to apply,” because the Secretary had no factors to consider before authorizing construction. Defs.’ CBD Mot. at 58–59; Defs.’ RGISC Mot. at 70–71. Determining whether military construction is “necessary,” the Government urges, is an “inescapably discretionary judgment.” Defs.’ RGISC Reply at 36–37; see also Defs.’ CBD Mot. at 59.
Not so. “The exception for agency action ‘committed to agency discretion by law’ is a ‘very narrow’ one, reserved for ‘those rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply.’” Hi-Tech Furnace Sys. v. FCC, 224 F.3d 781, 788 (D.C. Cir. 2000). The Court must weigh whether the statute provides any “statutory reference point” by which it can judge the Secretary’s actions. See Milk Train, Inc. v. Veneman, 310 F.3d 747, 752 (D.C. Cir. 2002). It considers “both the nature of the administrative action at issue and the language and structure of the statute that supplies the applicable legal standards for reviewing that action.” Sierra Club & Valley Watch, Inc. v. Jackson, 648 F.3d 848, 855 (D.C. Cir. 2011).
Section 2808 appears to provide several “statutory reference points.” For instance, the Court can evaluate whether the border barrier qualifies as “military construction.” CBD Opp’n at 55; RGISC Opp’n at 73. Congress defined the phrase “military construction” in § 2801 as “any construction, development, conversion, or extension of any kind carried out with respect to a military installation, whether to satisfy temporary or permanent requirements, or any
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acquisition of land or construction of a defense access road.” 10 U.S.C. § 2801(a). Answering whether the border wall qualifies as “military construction,” then, is a simple matter of statutory interpretation, something that is well within the judiciary’s competence. See El-Shifa, 607 F.3d at 858 n.5.
Neither is the phrase “necessary to support [the] armed forces” so broadly drawn that “there is no law to apply.” Hi-Tech Furnace Sys., 224 F.3d at 788. Though the Defense Secretary undoubtably has significant discretion under this statute, it is not limitless. Ultimately, the inquiry into whether something “supports the armed forces” and is “necessary” is objective. Had Congress wished, it could have committed this decision to the Secretary’s subjective discretion. For instance, in Webster v. Doe, the Supreme Court determined that a statute was “committed to agency discretion by law,” because it “allow[ed] termination of an Agency employee whenever the Director ‘shall deem such termination necessary or advisable in the interests of the United States’, not simply when the dismissal is necessary or advisable to those interests.” 486 U.S. 592, 600 (1988) (emphasis on original); see also e.g., IIRIRA § 102(c) (“[T]he Secretary of Homeland Security shall have the authority to waive all legal requirements such Secretary, in such Secretary’s sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under this section.” (emphasis added)). No such language appears in § 2808 committing the decision fully to the Secretary’s discretion.
But even if the statute provides “standards to apply,” a decision may still be “committed to agency discretion by law,” and thus unreviewable, if those standards are not “judicially manageable.” See Legal Assist. for Vietnamese Asylum Seekers v. Dep’t of State, 104 F.3d 1349, 1353 (D.C. Cir. 1997). Here, the Government suggests that § 2808’s standards are not “judicially manageable” because the statute “calls for sensitive judgments that Congress plainly
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intended military officials to make[.]” Defs.’ RGISC Reply at 37; see also Defs.’ CBD Mot. at 59. And on this point, the Court agrees. This portion of Plaintiffs’ § 2808 claim does not meet the APA’s threshold requirements.
In NFFE v. United States, the D.C. Circuit declined to review claims that the Defense Secretary’s base closing and realignment decisions were arbitrary and capricious because the Secretary’s decisions were “committed to agency discretion by law.” 905 F.2d 400, 405 (D.C. Cir. 1990). Though the court recognized that the Act was not “devoid of criteria”—in fact, the Act provided “nine specific criteria to be considered in making base closing decisions”— “the rub [was] that the subject matter of those criteria is not ‘judicially manageable.’” Id. Evaluating the Secretary’s decision would require the court to pass judgment on the “Secretary’s assessment of the nation’s military force structure and the military value of the bases.” Id. at 406. This, the judiciary is “ill-equipped” to do. Id.; El-Shifa, 607 F.3d at 844 (“In military matters in particular, the courts lack the competence to assess the strategic decision to deploy force or to create standards to determine whether the use of force was justified or well-founded.”).
Though the Court can objectively determine whether the Defense Secretary is using funds from § 2808 to engage in “military construction” and whether that construction supports the use of the armed forces, the statute lacks judicially manageable standards to determine whether the military construction is “necessary.” That decision crosses the line into military policy, since review of that decision “would necessarily involve second guessing the Secretary’s assessment of . . . the military value” of the military construction. See NFFE, 905 F.2d at 406. The Court therefore will not review whether the Secretary erred in determining, under § 2808, that the border barrier construction was “necessary.”
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Next, the Government suggests that the Treasury Secretary’s exercise of authority under § 9705 is “committed to agency discretion by law.” It is not. The TFF allows the Treasury Secretary to expend funds “in connection with the law enforcement activities of any Federal agency[.]” See 31 U.S.C. § 9705(g)(4)(B). The Government argues that the “broad authority” granted to the Treasury Secretary to administer the TFF precludes judicial review. Defs.’ RGISC Mot. at 72–73.
But even if the Secretary’s discretion is broad, it is not limitless. Here again, there is a distinction between the Court venturing into areas “committed to agency discretion”—such as how best to use TFF funds—and the Court applying statutory interpretation principles to determine whether the Secretary’s actions follow Congress’s dictates. The Treasury Secretary may not use TFF funds for any purpose he chooses. It restricted his use of these particular funds to expenditures connected to “law enforcement activities of any Federal agency.” 31 U.S.C. 9705(g)(4)(B). “This limitation affords a ‘statutory reference point’ by which the court is able to review the Secretary’s” decision to use TFF funds for border wall construction. See Milk Train, Inc. v. Veneman, 310 F.3d 747, 752 (D.C. Cir. 2002). Although the Court cannot venture into whether it was a wise policy choice to use TFF funds to construct the border wall, it can competently determine whether the construction qualifies as “law enforcement activities of any Federal agency.”
2. Plaintiffs Fall Outside the Zone of Interests of All Challenged Statutes, Except the CAA.
The APA’s threshold requirements ensure that an agency action is properly before the Court. The “zone of interests” test ensures that the proper plaintiffs are challenging that agency action. See Phys. for Soc. Respon. v. Wheeler, 359 F. Supp. 3d 27, 38 (D.D.C. 2019) (“[T]he [zone of interests] test is mainly concerned with which private party may sue to challenge an
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agency action, not whether any party may sue at all.”). Here, the Government contends that Plaintiffs are the wrong parties to allege violations of the 2019 Consolidated Appropriations Act and §§ 2808, 284, 9705, and 8005. Defs.’ Suppl. Mem. Addressing Zone of Interests 7–14 (“Defs.’ ZOI Br.”), CBD ECF No. 48; RGISC ECF No. 67. Except for the CAA, the Court agrees. The Court will thus dismiss all APA claims related to §§ 2808, 284, 9705, and 8005.
Not every plaintiff can challenge every agency action. APA review is limited to a plaintiff whose interests “arguably” fall “within the zone of interests to be protected or regulated by the statute that he says was violated.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 224 (2012) (internal citations omitted). In other words, the Court must consider whether these Plaintiffs’ interests “systematically, not fortuitously,” align with the interests Congress had “in mind” when enacting these statutes. Hazardous Waste Treatment Council v. Thomas, 885 F.2d 918, 924, 927 (D.C. Cir. 1989).
Consider Hazardous Waste, where the D.C. Circuit explained that a trade association for hazardous waste treatment companies, HWTC, did not fall within the zone of interests of the Resource Conservation and Recovery Act (“RCRA”). Id. at 924. HWTC posited that its interest in more stringent treatment standards aligned with the RCRA’s purpose of protecting health and the environment. Id. But the Circuit discerned that although HWTC’s interests aligned with the statute’s in that case, this was a fortuitous, not systematic, alignment. Id. at 924–25. HTWC’s true interest was not in environmental protection—it was “in making money.” Id. at 924. True, HTWC supported stricter treatment standards in that case, but this was because it was pursuing a regulation that helped it “get[] more revenue by increasing the demand for [its] particular treatment services.” Id. The Circuit speculated that its interests would not align if the EPA pursued regulations under the RCRA that “might be less profitable.” Id. at 924–25. In other
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words, HTWC was not really policing the RCRA’s interests. Its monetary interests just happened to coincide momentarily with environmental interests.
Put another way, the zone of interests test requires Plaintiffs to be “reasonable—indeed, predictable—challengers of the Secretary’s decisions[.]” See Match-E-Be-Nash-She-Wish, 567 U.S. at 227. If their suit is “more likely to frustrate than to further statutory objectives,” Plaintiffs cannot fall within the zone of interests. Hazardous Waste, 885 F.2d at 922 (quoting Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 397 n.12 (1987)).
a. Sections 2808, 284, and 9705 Recall that § 2808 allows the Secretary of Defense to authorize military construction during a national emergency. 10 U.S.C. § 2808(a). It permits the Secretary to undertake this construction “without regard to any other provision of law” as long as the construction is “necessary” to support the use of the armed forces. Id. This military defense statute, the Government argues, cannot in any way align with RGISC or CBD’s environmental, property, business, cultural, and recreational interests. Defs.’ ZOI Br. at 10. Instead, the statute seems to disregard those interests by permitting the DoD to undertake military construction even if it means trampling on a host of regulations that would normally protect RGISC’s interests. Defs.’ ZOI Br. at 9–10. Likewise, § 284 allows DoD to assist other agencies seeking to “block drug smuggling corridors across international boundaries of the United States.” 10 U.S.C. § 284(a), (b)(7). And under § 9705 the Treasury Secretary can allocate the proceeds of forfeited funds to support law enforcement activities. 31 U.S.C. § 9705(g)(4)(B). The Government contends that Plaintiffs have not pointed to anything in these statutes that suggests that Congress meant to protect
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environmental, recreational, property, or other interests in the land affected by these transferred funds. Id. at 10–13.
Though RGISC seems to acknowledge that these statutes on their face do not reflect its asserted interests, it responds that this is not dispositive.13 RGISC ZOI Br. at 21. Citing Patchak v. Salazar, 632 F.3d 702 (D.C. Cir. 2001), and Match-E-Be-Nash-She-Wish, 567 U.S. at 227, RGISC argues that its interest in the property affected by the Secretaries’ actions is enough to place it within the statutes’ zone of interests. RGISC ZOI Br. at 21–23.
But those cases do not stand for the idea that anyone who experiences adverse effects from agency action will always fall within a statute’s zone of interests. Rather, those decisions found that—even though Congress did not intend to protect or benefit plaintiffs—their interests aligned with the statute’s interests.
Take the Supreme Court’s opinion in Match-E-Be-Nash-She-Wish. There, the Department of the Interior took property into trust for an Indian tribe to build a casino. 567 U.S. at 211–12. An owner of nearby property, asserting “economic, environmental, and aesthetic harms from the casino’s operation,” claimed that the “Secretary lacked authority under § 465 to take title to the land.” Id. at 212. The Government argued that this landowner fell outside the statute’s zone of interests because the plaintiff’s interests related to the “land’s use as a casino,” while “the statute focuses on land acquisition.” Id. at 225 (emphasis in original). But the Supreme Court disagreed.
The zone of interests test, it explained, simply asks whether the interests raised by the plaintiffs “fall within the zone protected or regulated by the statute.” Id. at 227 (cleaned up).
13 CBD does not argue that it falls within the zone of interests for §§ 2808, 284, or 8005. Instead, it argues that these statutes are “intertwined” with its claim under the CAA for which, it argues, it does fall within the zone of interests. See CBD ZOI Br. at 14–16. The Court will therefore address CBD’s arguments separately. See infra at III.B.2.c.
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Plaintiffs fall outside that zone if their “interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Id. at 225 (quoting Clarke, 479 U.S. at 399). Turning to the language of that statute, the Court determined that the plaintiff “satisfie[d] that standard, because [the statute] has far more to do with land use than the Government . . . acknowledge[d].” Id. at 225–26. In fact, “from start to finish, the decision whether to acquire the [property] under § 465 involved questions of land use.” Id. at 227. In other words, based on the language and context of that statute, both the statute and the property owner had related interests: the use of the acquired land. Id.; see also Patchak, 632 F.3d at 705 (holding that the zone of interests “analysis focuses, not on those who Congress intended to benefit, but on those who in practice can be expected to police the interests that the statute protects” (emphasis added)).
Not so with RGISC. RGISC says that, like the plaintiff in Match-E-Be-Nash-She-Wish, it has an interest in the land. RGISC ZOI Br. at 21–22. It thus reasons that it must also fall within the zone of interests of §§ 2808, 284, and 9705, since these statutes negatively impact the land along the border. Id. But Match-E-Be-Nash-She-Wish does not automatically place any plaintiff with an interest in the land affected by a statute within that statute’s zone of interests. The use of the land was at the heart of the statute at issue in Match-E-Be-Nash-She-Wish. 567 U.S. at 227. The Court here must consider the language of §§ 2808, 284, and 9705 to determine whether these statutes contemplate RGISC’s asserted interest. RGISC’s interest in the land is much further removed from statutes dealing with the use of funds in DHS and Treasury accounts. See Grocery Mfrs. Ass’n v. EPA, 693 F.3d 169, 179 (D.C. Cir. 2012) (noting that a “food group’s interest in low corn prices is much further removed from a provision about cars and fuel than a neighboring land owner’s interest is from a statute about land acquisition”).
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Nothing in §§ 284 or 9705 reflects an interest in land use. These statutes govern how and when the Executive Branch may use certain funds—the counterdrug account and TFF.14 They do not focus on the acquisition or use of property, as the statute at issue in Match-E-Be-NashShe-Wish did. Instead, they solely address the agencies’ use of funds for various law enforcement activities. So a general claim to an interest in the property where these funds are expended is not enough to place RGISC within the zone of interests of these statutes. RGISC’s conservationist, environmental, recreational, and economic interests in the use of the TFF and counterdrug account funds are “so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Clarke, 479 U.S. at 399.
This is even clearer for § 2808. The language there allowing the Defense Secretary to disregard other laws when engaging in military construction suggests that the construction may supersede any interest in the land itself. Section 2808 shows an intent to give the Secretary maximum flexibility to respond to quickly evolving needs in a national emergency without regard to the effects of that response. So rather than having interests aligned with the statute, by seeking to enjoin the barrier construction, RGISC is frustrating the Secretary’s ability to respond to an emergency. Hazardous Waste, 885 F.2d at 922 (quoting Clarke, 479 U.S. at 397 n.12). Since RGISC’s interests “may be fundamentally inconsistent with the interests Congress had in mind when it enacted the statute,” RGISC is a “peculiarly unsuitable proxy for those whom
14 Recall that § 284 states: “The Secretary of Defense may provide support for the counterdrug activities or activities to counter transnational organized crime of any other department or agency of the Federal Government . . . [including] [c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.” 10 U.S.C. § 284(a), (b)(7). Section 9705 allows the Treasury Secretary to use “unobligated balances” in the TFF “for obligation or expenditure in connection with the law enforcement activities of any Federal agency or of a Department of the Treasury law enforcement organization.” 31 U.S.C. § 9705(g)(4)(B).
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Congress intended to protect.” Id. at 927 (emphasis in original). This cannot place it within § 2808’s zone of interests.15
b. 2019 Consolidated Appropriations Act RGISC and CBD do, though, arguably fall within the zone of interests of the CAA. As with the other statutes, the Government contends that this cannot be so because the CAA “regulate[s] the relationship between Congress and the Executive Branch regarding federal spending, and in no way protect[s] the public’s generalized interest in the expenditure of appropriations.” Defs.’ ZOI Br. at 13. While Plaintiffs’ ability to fall within the CAA’s zone of interests may be doubtful, “the benefit of any doubt goes to the plaintiff.” Match-E-Be-NashShe-Wish, 567 U.S. at 225. Despite the Government’s argument, neither CBD nor RGISC assert a “generalized interest in the expenditure of appropriations.” Defs.’ ZOI Br. at 13. Instead, Plaintiffs claim that their “conservational, recreational, scientific, [and] aesthetic” interests are the same interests protected by §§ 230–232 and 739 of the CAA. See CBD Suppl. Br. 10–11 (“CBD ZOI Br.”), CBD ECF No. 49; see also RGISC ZOI Br. at 18. The Court concludes that the CAA may indeed embrace the conservationist interests that Plaintiffs seek to protect. Plaintiffs note that § 231’s prohibition on border barrier construction within five wildlife refuges and parks and § 232’s requirement that DHS confer with local
15 In Sierra Club, the Ninth Circuit determined that Sierra Club satisfied the zone of interests test because it treated Sierra Club’s statutory claim as a constitutional claim. 929 F.3d at 703. It thus determined that the proper question was “whether Plaintiffs fall within the zone of interests of the Appropriations Clause, not of section 8005.” Id. The Court disagrees with this approach. Plaintiffs’ claims here are statutory, not constitutional. As explained infra III.D., the Supreme Court in Dalton explicitly held that “claims simply alleging that the President has exceeded his statutory authority are not ‘constitutional’ claims, subject to judicial review.” 511 U.S. at 473 (emphasis added). Since Plaintiffs allege that Defendants exceeded their statutory authority—not that they were acting pursuant to constitutional authority or that the statutes themselves are unconstitutional—they have not stated constitutional claims. See infra III.D. The proper question, then, is not whether their interests align with certain constitutional provisions but whether they fall within “the zone of interests to be protected or regulated by the statute[s] that [Plaintiffs say were] violated.” Match-E-Be-Nash-She-Wish, 567 U.S. at 224.
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officials where it plans barrier construction hint “that Congress considered the [environmental] impacts of building additional barriers along the southern border.” See RGISC ZOI Br. at 18. If so, this conservational interest would align with Plaintiffs’. Though it is debatable whether the CAA protects the interests that Plaintiffs assert, all that Plaintiffs must show is that they are “arguably within the zone of interests” of the CAA. See Match-E-Be-Nash-She-Wish, 567 U.S. at 2210. They have done so.
But, the Government retorts, the Court should not even consider the environmental interests in §§ 231 and 232. Defs.’ Reply Suppl. Mem. Addressing Zone of Interests 11 (“Defs.’ ZOI Reply”), CBD ECF No. 51; RGISC ECF No. 71. The Government observes that Plaintiffs do not allege violations of those provisions. Id. at 12. So, it concludes, the Court should consider only whether CBD and RGISC fall within the zone of interests of the challenged provisions: §§ 230 and 739. Id. at 11–12. Plaintiffs respond that §§ 230 and 739 are “integrally related” to §§ 231 and 232 and thus these latter two provisions are relevant to the zone of interests inquiry for §§ 230 and 739. CBD ZOI Br. at 11–13. Plaintiffs are correct.
Recently, the D.C. Circuit reiterated that when considering whether a plaintiff’s interests fall within a statute’s zone of interests, a court should not “look at the specific provision said to have been violated in complete isolation, but rather in combination with other provisions to which it bears an ‘integral relationship.’” Indian River Cty. v. U.S. DOT, 945 F.3d 515, 530 (D.C. Cir. 2019) (quoting Nat’l Petrochemical & Refiners Ass’n v. EPA, 287 F.3d 1130, 1147 (D.C. Cir. 2002)) (cleaned up). Here, Plaintiffs have reasonably shown that §§ 230, 231, 232, and 739 are all “integrally related.”
Sections 230, 231, and 232 contain Congress’s appropriation of funds to build a segment of a border wall and restrictions on those funds. Though divided into different sections, the full
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“context and purpose” of these provisions is to explain the permitted uses of the funds allocated in § 230. See Indian River, 945 F.3d at 530. Section 739 also bears an “integral relationship” to these provisions since it preserves the integrity of each appropriation in the CAA. This section— which prohibits use of funds from “this or any other appropriations Act” to “increase . . . funding for a program, project, or activity as proposed in the President’s budget request for a fiscal year”—would be meaningless if not paired with other provisions of the CAA. Sections 230, 231, and 232 of the CAA put flesh on § 739’s bare mandate. These sections thus bear an “integral relationship” with the others.
Because CBD and RGISC’s environmental interests appear to align with at least some interests protected in §§ 231 and 232, the Court cannot say with certainty that Plaintiffs’ interests are “so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” See Clarke, 479 U.S. at 399 (1987). CBD and RGISC may therefore assert APA claims for violating the CAA.
c. CBD fails the zone of interests test for §§ 2808 and 8005. The Government also urges dismissal of CBD’s APA claims because it contends that CBD does not fall within the zone of interests of §§ 2808 and 8005. Defs.’ ZOI Br. at 9–12. Indeed, in reply, CBD does not even try to argue that it can fall within the zone of interests of those statutes. Instead, it claims that since it falls within the zone of interests of the CAA, it essentially gets a “pass” on meeting the zone of interests test for §§ 2808 and 8005. CBD ZOI Br. at 14–15. This is because it claims that the Court must decide whether the Defense Secretary violated §§ 2808 and 8005 for the Court to decide whether he also violated the CAA. Id. at 14 (“[The Court must] resolve defendants’ assertions that the provisions of [§§ 2808 and 8005] provide alternative funding mechanisms that would essentially provide an exception [to the CAA].”). But CBD cannot escape the zone of interests requirement so easily.
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The Court need not determine whether Defendants unlawfully used §§ 2808 and 8005 to decide whether they violated the CAA, an entirely different Act. CBD’s Complaint alleges that the Defense Secretary’s and Army Corps of Engineers’ implementing actions under §§ 2808 and 8005 violated the CAA by (1) “exceeding and falling outside of the Act’s monetary and geographic limitations, respectively, on border wall funding,” CBD Compl. ¶¶ 164, 175, and (2) violating the CAA’s prohibition that “[n]one of the funds made available in this or any other appropriations Act may be used to increase . . . funding for a program, project, or activity as proposed in the President’s budget request for a fiscal year until such proposed change is subsequently enacted in an appropriation Act, or unless such change is made pursuant to the reprogramming or transfer provisions of this or any other appropriations Act,” id. ¶¶ 165, 176.
Neither of these two claims requires the Court to separately determine whether Defendants violated §§ 2808 and 8005. Nor do they allege that the unlawfulness of Defendants’ actions under §§ 2808 or 8005 is what violates the CAA. These claims require the Court to determine only whether Defendants (1) violated the geographical and monetary restrictions in § 230 of the CAA, and (2) used §§ 2808 and 8005 to increase funding for a project proposed in the President’s budget. The Court can assume that Defendants lawfully used these provisions to transfer funds to border projects and still consider whether doing so violated the CAA’s provisions.
Since CBD does not even attempt to explain how it independently falls within the zone of interests of §§ 2808 and 8005, the Court will dismiss those APA claims.
3. CBD and RGISC State a Claim for a Violation of the CAA § 739. Even though Plaintiffs fall within the CAA’s zone of interests, the Government argues that their claims should be dismissed for failure to state a claim. Defs.’ CBD Mot. at 66–69;
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Defs.’ RGISC Mot. at 78–80. Mindful that the Court must “treat the complaint’s factual allegations as true and must grant the plaintiffs the benefit of all inferences that can be derived from the facts alleged,” L. Xia, 865 F.3d at 649 (cleaned up), the Court will not dismiss Plaintiffs’ claim for a violation of § 739. The Court will, though, dismiss CBD and RGISC’s claims for a violation of § 230.
Recall that § 230 makes $1.375 billion “available only” for “the construction of primary pedestrian fencing, including levee pedestrian fencing, in the Rio Grande Valley Sector.” See CAA § 230(a)(1). CBD claims that the Defense Secretary and Army Corps of Engineers violated this provision by “exceeding and falling outside [§ 230’s] monetary and geographic limitations.” CBD Compl. ¶¶ 164, 175. RGISC’s Complaint generally alleges that Defendants’ actions “violate[] the 2019 Consolidated Appropriations Act” without alleging violations of specific sections of the CAA. See RGISC Compl. ¶¶ 157–160.
In neither Complaint do Plaintiffs allege that the Government violated § 230 by using the $1.375 billion in a manner or geographic area not permitted under §§ 230, 231, and 232. Instead, Plaintiffs suggest that Congress’s narrow appropriation of $1.375 billion for border wall construction in the Rio Grande Valley Sector precludes all other border barrier construction using other appropriated funds—even if those more general appropriations may also permit border construction.
For support, Plaintiffs turn to Nevada v. DOE, 400 F.3d 9 (D.C. Cir. 2005). See CBD Opp’n at 64 n.27; RGISC Opp’n at 67. There, Congress’s 2004 appropriations act gave Nevada $1 million “to conduct scientific oversight responsibilities and participate in licensing activities pursuant to the [Nuclear Waste Policy Act].” Id. at 12. Nevada claimed that it was also entitled
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to other funds for its licensing and scientific oversight activities under another, more general, provision in the appropriations act. Id. The D.C. Circuit disagreed.
It explained that, based on the general-specific canon of statutory interpretation, “an appropriation for a specific purpose is exclusive of other appropriations in general terms which might be applicable in the absence of the specific appropriation.” Id. at 16 (internal quotations omitted). As an example, the court cited a GAO opinion, where the GAO concluded that “an appropriation expressly for repairing jails in Alaska, made from a fund comprised of ‘fines, forfeitures, [and] judgments,’ precluded the financing of repairs to an Alaskan jail with funds appropriated from the Treasury for the more general purpose of ‘repairs, betterments, and improvements of United States jails.’” Id. (citing 4 Comp. Gen. 476 (1924)) (alternation in original). Since Congress had already allocated money for a “specific purpose . . . financing ‘scientific oversight’ and ‘licensing activities,’” Nevada could not increase that appropriation through other funding sources. Id.
Plaintiffs similarly try to invoke the general-specific canon to allege a violation of § 230. They suggest that the Government cannot use other general appropriations to construct border barriers when Congress has already provided a specific appropriation for border barrier construction in the Rio Grande Valley Sector. See CBD Opp’n at 64 n.27; RGISC Opp’n at 67. But Plaintiffs misunderstand Nevada and the general-specific canon.
The general-specific canon may be invoked when “both specific and general provisions cover the same subject,” Norwest Bank Minn. Nat’l Ass’n v. FDIC, 312 F.3d 447, 451 (D.C. Cir. 2002), and when the two provisions are in conflict, see Antonin Scalia & Bryan A. Garner, Reading Law 183 (2012). When this occurs, “the specific provision is treated as an exception to the general rule.” Scalia & Garner, supra, at 183. But “[o]nly [the general rule’s] application to
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cases covered by the specific provision is suspended; it continues to govern all other cases.” Id. at 184. In Nevada, since both the general and specific appropriation covered the same subject (scientific oversight and licensing activities), the more specific appropriation created an exception to the general one. 400 F.3d at 16.
The general-specific canon applies only when the two provisions “cover the same subject.” Norwest Bank, 312 F.3d at 451 (emphasis added). Yet here no one alleges that the Government is using general appropriations to inflate the specific appropriation to Rio Grande Valley Sector barrier construction. Plaintiffs instead allege that the Government is using these general appropriations to construct additional miles of border barriers never specifically funded in the CAA. See CBD Opp’n at 63–64 RGISC Opp’n at 67. In other words, the Government is using general appropriations to fund a different, though similar, subject. This is not the type of claim where the general-specific canon applies.
In Nevada, the court prohibited supplementing a congressional appropriation with more general appropriations—for instance, using the $2.5 billion from the § 284 fund to increase the $1.375 billion allocated to Rio Grande Valley Sector barrier construction project.16 The court did not prohibit the use of funds from more general appropriations to finance similar, but distinct, projects authorized by those funding sources. The prohibition on using general appropriations for the border wall “only appli[es] to cases covered by the specific provision . . . it continues to govern all other cases.” Scalia & Garner, supra, at 184.
16 CBD worries that permitting DoD to use § 8005 to fund border wall construction will “render the specific monetary and geographic limitations placed on border wall construction by the CAA without effect.” CBD Opp’n at 64. For example, “while Congress expressly prohibited border wall construction within all of one, and a portion of another National Wildlife Refuge . . . the government’s argument here would sanction the use of the [§ 8005] to construct border walls on numerous protected federal borderlands . . . without restriction.” Id. But if the Government tried to use § 8005 transfer authority to build border barriers within the geographic limitations of § 231, it would be using a more general appropriation to increase a specific appropriation, which Nevada v. DOE prohibits. 500 F.3d at 16. The geographic and monetary restrictions in §§ 230–232 are therefore not rendered meaningless.
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Since Plaintiffs’ Complaints do not allege that the Government has used general funds to supplement the more specific appropriation to the Rio Grande Valley Sector project, they cannot rely on the general-specific canon to assert a violation of CAA § 230. And since their claim rests on this theory, they have not stated a claim for a violation of § 230.
Even though § 230 does not automatically prohibit use of general appropriations for border wall construction, Congress still holds the reins of these more general appropriations. And it has the authority, if it wishes, to ensure that the Executive Branch does not misuse these more general appropriations statutes to finance items that it specifically chooses not to fund. Thus, Congress included § 739 in the CAA, which states:
None of the funds made available in this or any other appropriations Act may be used to increase, eliminate, or reduce funding for a program, project, or activity as proposed in the President’s budget request for a fiscal year until such proposed change is subsequently enacted in an appropriation Act, or unless such change is made pursuant to the reprogramming or transfer provisions of this or any other appropriations Act. Plaintiffs allege that the Government violated this provision of the CAA and, here, Plaintiffs have stated a claim. CBD and RGISC allege Defendants used funds from other appropriations to increase funding for a “project” in the President’s budget: barriers along the southern border. See CBD Compl. ¶ 176; RGISC Compl. ¶ 157–60. Though the Government argues that this is not so, the Court must “treat the complaint’s factual allegations as true.” L. Xia, 865 F.3d at 649. CBD and RGISC have thus stated a claim under the APA for a violation of CAA § 739. C. Ultra Vires Claims 1. Plaintiffs May Proceed Under an Ultra Vires Cause of Action. The main thrust of RGISC’s Complaint is that the Administration acted ultra vires by using §§ 2808, 284, and 9705 to fund border wall construction. RGISC Compl. ¶¶ 133–41.
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CBD pleads ultra vires claims in the alternative to its APA claims. CBD Compl. ¶¶ 167–70, 178–81. The Government urges that both sets of claims must be dismissed. Defs.’ CBD Mot. at 69; Defs.’ RGISC Mot. at 81. According to the Government, “the Court can only reach the merits of the ultra vires claims if APA review is unavailable.” Defs.’ CBD Mot. at 69; Defs.’ RGISC Mot. at 81. But even if the Court did address Plaintiffs’ claims, the Government suggests Plaintiffs could not survive the heightened level of scrutiny attached to ultra vires claims. Defs.’ CBD Mot. at 69; Defs.’ RGISC Mot. at 81–82.
CBD and RGISC counter that they have a separate equitable cause of action available to them—whether styled as a “non-statutory” cause of action, see CBD Opp’n at 65, or a “traditional equitable” action, see RGISC Opp’n at 61—even if they also have APA claims. RGISC explains that—long before the enactment of the APA—the Supreme Court found that when “an official violates the law to the injury of an individual the courts generally have jurisdiction to grant relief.” Am. Sch. of Magnetic Healing v. McAnnulty, 187 U.S. 94, 108 (1902). This equitable cause of action, they claim, is still available to them because “enactment of the APA did not repeal the review of ultra vires action recognized long before.” CBD Opp’n at 65 (citing Chamber of Commerce of the U.S. v. Reich, 74 F.3d 1322, 1328 (D.C. Cir. 1996)); see RGISC Opp’n at 58 (citing Dart v. United States, 848 F.2d 217, 224 (D.C. Cir. 1988)).
RGISC and CBD also contend that their claims are not subject to the heightened level of scrutiny that the Government tries to apply to their claims. CBD Opp’n at 66; RGISC Opp’n at 61–63. To be sure, RGISC and CBD admit that courts have applied a heightened level of scrutiny to ultra vires claims in some circumstances. CBD Opp’n at 66; RGISC Opp’n at 62–63. For instance, the Supreme Court in Leedom v. Kyne, 358 U.S. 184 (1958), permitted “narrow” ultra vires review for claims “where Congress is understood generally to have precluded
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review.” Griffith v. Fed. Labor Relations Auth., 842 F.2d 487, 492 (D.C. Cir. 1988). When plaintiffs bring ultra vires claims where Congress has precluded review, they must show that “(i) the statutory preclusion of review is implied rather than express; (ii) there is no alternative procedure for review of the statutory claim; and (iii) the agency plainly acts in excess of its delegated powers and contrary to a specific prohibition in the statute that is clear and mandatory.” DCH Reg’l Med. Ctr. v. Azar, 925 F.3d 503, 509 (D.C. Cir. 2019) (internal quotations omitted). But Plaintiffs argue they are not subject to this “narrow” ultra vires review since Congress has not precluded review of §§ 2808, 284, 8005, or 9705. CBD Opp’n at 66; RGISC Opp’n at 61–63.
The Government offers no meaningful response to this. Instead, in reply to RGISC, it reiterates that “the APA is the proper framework” for RGISC’s claims and RGISC “should not be allowed to bypass the strictures of the APA by seeking nonstatutory review.” Defs.’ RGISC Reply at 40. It never tries to respond to RGISC’s argument that its claims are not subject to a heightened scrutiny. The Government merely says that it relies on Leedom “to illustrate the point that nonstatutory review requires a higher level of scrutiny[.]” Id. But it misses the point: RGISC argues that Leedom does not apply to its claim because Congress has not precluded review.
The Government’s response to CBD’s argument is even less adequate. It addresses CBD’s argument in one sentence: “Plaintiffs’ ultra vires claim alleging § 2808 violations fail . . . because the standard to state a nonstatutory ultra vires claim is higher than that [] under the APA, and such claims ‘rarely succeed.’” Defs.’ CBD Reply 29, CBD ECF No. 33. It again makes no effort to rebut CBD’s contention that heightened scrutiny does not apply here.
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The Court doubts that Plaintiffs can bring an equitable claim when a statutory cause of action is available to it. See Sierra Club, 929 F.3d at 716 (N.R. Smith, J., dissenting) (arguing that the court should not take the “extraordinary step of implying an equitable cause of action” when “an avenue for challenging the [agencies’] action exists under the APA—just not for these Plaintiffs”). But this is the Government’s Motion to Dismiss and it bears the burden of persuading the Court that Plaintiffs’ claims must be dismissed. See Intelsat USA Sales Corp. v. Juch-Tech, Inc., 24 F. Supp. 3d 32, 48 n.10 (D.D.C. 2014) (“While it is a plaintiff's burden to allege facts supporting the elements of its claim, all federal courts are in agreement that the burden is on the moving party in a Rule 12(b)(6) motion to prove that no legally cognizable claim for relief exists.” (cleaned up)). The Government has not done so with these claims. Given the early stage of these proceedings and Plaintiffs’ colorable claim that they have an equitable cause of action to bring their ultra vires claims, the Court will permit these claims to proceed.
2. Plaintiffs Need Not Fall Within the Zone of Interests for Ultra Vires Claims. The Government urges that the Court must dismiss Plaintiffs’ ultra vires claims for a second reason: they fail to meet the zone of interests for the challenged statutes. Defs.’ ZOI Br. at 4. In Lexmark, the Supreme Court “presume[d] that a statutory cause of action extends only to plaintiffs whose interests fall within the zone of interests protected by the law invoked.” 572 U.S. at 129 (internal quotations omitted). But the Supreme Court has never squarely addressed whether the zone of interests test applies to ultra vires claims. And the D.C. Circuit has expressed doubt that it would. See Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 811 n.14 (D.C. Cir. 1987). In Haitian Refugee Center, the court announced—admittedly, in dicta—that,
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Appellants need not, however, show that their interests fall within the zones of interests of the constitutional and statutory powers invoked by the President in order to establish their standing to challenge the interdiction program as ultra vires. Otherwise, a meritorious litigant, injured by ultra vires action, would seldom have standing to sue since the litigants’ interest normally will not fall within the zone of interests of the very statutory or constitutional provision that he claims does not authorize action concerning that interest. Id.; see also Sierra Club, 929 F.3d at 700 (“[W]e are skeptical that there could be a zone of interests requirement for a claim alleging that official action was taken in the absence of all authority[.]”). Though this dictum is not binding, the Court finds it persuasive. If the Government were to use a Medicare statute, for example, to justify building the border wall on someone’s property, it would make little sense to require that person to show that he was a Medicare beneficiary or provider to argue that the Medicare statute did not permit border barrier construction. It is no different here where Plaintiffs claim they are injured by the Government’s use of statutes that, they say, it had no right to use for these purposes. CBD and RGISC thus need not satisfy the zone of interests test for their ultra vires claims. 3. CBD and RGISC Have Stated Ultra Vires Claims. The Government finally argues that Plaintiffs’ ultra vires claims must fail because Plaintiffs have not stated a claim that the Government exceeded its authority under §§ 2808, 8005, 284, 9705, and the CAA. For the reasons already stated, Plaintiffs have stated a claim that the Government exceeded its authority under § 739 of the CAA, but not § 230. See supra III.B.3. For the reasons below, the Court finds that CBD has also stated ultra vires claims for
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violations of §§ 2808 and 8005. RGISC has stated claims for violations of §§ 2808 and 284, but not § 9705.
a. CBD has stated claims that the Government exceeded its statutory authority under §§ 2808 and 8005.
CBD’s Complaint alleges that the Defense Secretary’s and Army Corps of Engineers’ “implementing actions to identify, transfer, and obligate emergency funds from military construction housing to border wall construction,” exceeds the authority given to those Defendants under the “plain language of [§ 2808].” CBD Compl. ¶¶ 163, 169. Particularly, CBD contends that the Government is not engaging in “military construction” that is “necessary to support [the] use of the armed forces” under the statute.17 Id. ¶¶ 158–59. As defined in § 2801, “military construction” must be “carried out with respect to a military installation,” which includes “a base, camp, post, station, yard, center, or other activity under the jurisdiction of the Secretary of a military department.” 10 U.S.C. § 2801(a), (c)(4). CBD claims that “[t]he vast majority, if not all, of the border wall construction that the proclamation would fund occurs on lands that do not constitute a military installation, and in any event, the border wall is not a military construction project and thus is not lawfully eligible for emergency military construction transferred appropriations.” CBD Compl. ¶ 158. And it claims that the border wall in “no way supports the armed forces.” Id. ¶ 159.
The Government makes two attacks on this claim. First, it suggests that CBD has no claim because the “broad definition” of “military installation to include non-specified ‘other activity,’ does not ‘foreclose’ the inclusion of border barrier construction.” Defs.’ CBD Mot. at
17 As explained in III.B.1, the Court will not consider whether the Defense Secretary complied with the § 2808’s requirements that the construction is “necessary to support [] use of the armed forces.” 10 U.S.C. § 2808(a) (emphasis added).
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64. But, as above, the broad parameters of §§ 2808 and 2801 do not preclude review under those statutes. See supra III.B.1.
Second, the Government argues that CBD’s claims that the lands “do not constitute a military installation,” that the wall “is not a military construction project,” and that the wall does not support the armed forces are “nothing more than conclusions unsupported by factual allegations.” Defs.’ CBD Mot. at 65 (cleaned up). But CBD offers more than “mere conclusions.” CBD’s Complaint explains that the Defense Secretary and the Army Corps of Engineers allocated funds to border barrier construction under § 2808. CBD Compl. ¶ 125. It alleges that this construction will occur in the “highest priority areas,” including the San Diego, El Centro, Yuma, El Paso, and Laredo sectors. Id. ¶ 128. It alleges that the “vast majority” of these lands are not military installations. Id. ¶ 158. And it alleges that the border wall is supporting domestic law enforcement agencies, not the military. Id. at ¶ 160.
Whether CBD’s allegations are true is not currently before the Court. The Court must “treat the complaint’s factual allegations as true and must grant the plaintiffs the benefit of all inferences that can be derived from the facts alleged.” L. Xia, 865 F.3d at 649 (cleaned up). The Court thus concludes that CBD has stated a claim that Defendants exceeded their statutory authority under § 2808.
CBD also states a claim under § 8005. CBD alleges that Defendants exceeded their authority under § 8005 by transferring appropriated funds when “the item for which funds [were] requested has been denied by the Congress.” CBD Compl. ¶ 174. The Complaint alleges that an item—the additional mileage of the border wall—was denied by Congress in the CAA. Since Defendants used § 8005 to funnel funds through the counterdrug account to assist DHS with border construction, see CBD Compl. ¶ 124, CBD claims that this action was unlawful under
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§ 8005. The Government disagrees with CBD’s characterization of the “item” and “denial.” Defs.’ CBD Mot. at 65–66. But at this stage of the litigation, the Court is careful to accept Plaintiffs’ allegations as true. Since CBD plausibly alleges that Defendants used § 8005 to fund border wall construction and that Congress denied funds for this border wall project, CBD has stated a claim that Defendants’ actions were ultra vires.
b. RGISC has stated claims that the Government exceeded its statutory authority under §§ 2808 and 284.
Like CBD, RGISC alleges that the § 2808 does not authorize border wall construction because it “is not ‘necessary to support [the] use of the armed forces’” and “is not a ‘military construction project.’” RGISC Compl. ¶ 138. And, as with CBD, the Government responds that RGISC’s claims are “nothing more than conclusions unsupported by factual allegations.” Defs.’ RGISC Mot. at 77–78. RGISC’s Complaint, though, alleges that the Administration will allocate § 2808 funds along the southern border, RGISC Compl. ¶ 92–93, 105, and explains that “the hundreds of miles along the Mexico border on which Defendants intend to construct a wall do not constitute a military [installation],” RGSIC Opp’n at 73. RGISC also contends that the border wall will support civilian agencies, not the military. RGISC Opp’n at 72–73. Later on, it may prove true that the Government did indeed use § 2808 funds exclusively on military construction to support the armed forces. But RGISC’s allegations are plausible enough to overcome a motion to dismiss, especially considering the shifting landscape of these border barrier funding decisions. See supra III.A.1.a.
For similar reasons, RGISC has plausibly alleged at this stage that the funds transferred from DoD’s counterdrug account violated the parameters of § 284. That section allows DoD to “provide support for the counterdrug activities . . . of any other department or agency of the Federal Government,” 10 U.S.C. § 284(a), including “[c]onstruction of roads and fences and
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installation of lighting to block drug smuggling corridors across international boundaries of the United States,” 10 U.S.C. § 284(b)(7). Based on the limited information that RGISC had at the pleadings stage of litigation, it plausibly alleged that DoD and DHS would not be using the $2.5 billion transferred from this account to build fences at “particular drug smuggling corridors” in violation of the statute. RGISC Compl. ¶ 139. The Court credits that allegation at this stage and will not dismiss this claim.
c. RGISC has not stated a claim that the Government exceeded its statutory authority under § 9705.
RGISC’s Complaint alleges that “[u]se of the Treasury Forfeiture Fund under 31 U.S.C. § 9705 to construct the border wall violates the Consolidated Appropriations Act of 2019. . . . The President cannot fund the border wall from the Treasury Forfeiture Fund because 31 U.S.C. § 9705 restricts use of those funds to specified purposes and construction of a border wall does not meet the requirements of the statute.” RGISC Compl. ¶ 140. At first blush, it is unclear whether RGISC’s claim is that the Treasury Secretary’s use of § 9705 exceeded his statutory authority under the CAA or whether RGISC contends that using TFF funds for border wall construction exceeds the bounds of the TFF. Assuming RGISC intended to bring a distinct claim that the Treasury Secretary violated § 9705, the Court finds that RGISC has failed to state a claim.18
Nothing in RGISC’s Complaint or brief in opposition to the Government’s Motion to Dismiss explains how the Treasury Secretary exceeded his authority under § 9705. The TFF permits the Treasury Secretary to allocate “unobligated balances” remaining in the fund to any “obligation or expenditure in connection with the law enforcement activities of any Federal
18 However, to the extent that RGISC only intended to bring a claim alleging a violation of the CAA, RGISC has stated a claim for a violation of the CAA § 739. See supra III.B.3. The Court will therefore consider in this litigation whether the Treasury Secretary’s use of TFF funds violated § 739 of the CAA.
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agency.” 31 U.S.C. § 9705(g)(4)(B). The Government explained in its motion that construction of border barriers is at least partially, not exclusively, a law enforcement activity: “Congress has recognized that barriers prevent unlawful entries by aliens and smuggling of contraband across the border, see Secure Fence Act of 2006, Pub. L. No. 109-367, §§ 2–3, 120 Stat. at 2638–39, and thus help enforce the laws that prohibit such activities[.]” Defs.’ RGISC Mot. at 75.
In response, RGISC did not try to explain how the border barrier construction is not “in connection with law enforcement activities.” Instead, it focused its argument on how the TFF’s appropriations “cannot overrule the targeted limitations on border wall construction expressed in the CAA.” RGISC Opp’n at 69. This is a claim that the Treasury Secretary violated the CAA, not § 9705. Since RGISC makes no effort to explain how the use of TFF funds violated the terms of § 9705, the Court will dismiss this claim for failure to state a claim.
D. Constitutional Claims Finally, the Government urges the Court to dismiss CBD and RGISC’s constitutional
claims because “these counts merely recast Plaintiffs’ statutory claims in constitutional terms.” Defs.’ CBD Mot. at 70 (citing Dalton v. Spector, 511 U.S. 462 (1994)); Defs.’ RGISC Mot. at 82 (same). The Court agrees that Dalton disposes of these claims.
In Dalton, state officials and shipyard employees tried to enjoin the Secretary of Defense “from carrying out a decision by the President to close the Philadelphia Naval Shipyard.” 511 U.S. at 464. Under the Defense Base Closure and Realignment Act of 1990, an independent commission would consider military base closure recommendations from the Secretary of Defense and make a recommendation directly to the President. Id. at 465. The President would then would either approve or disapprove the recommendation. Id. After the President approved the closure of the Philadelphia Shipyard, the plaintiffs sought review under the APA, alleging
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that the President’s decision was unlawful because the Secretary and commission violated the substantive and procedural requirements of the Act. Id. at 466. The Supreme Court determined that the plaintiffs could not seek review under the APA since they were challenging the President’s decision, which is unreviewable under the APA. Id. at 470–71.
The Court then considered whether it could review a separate constitutional claim that the President acted beyond his statutory authority. Id. at 471–72. After reviewing several prior related cases, the Court found that no constitutional claim existed. There, “the claim raised [was] a statutory one: The President [was] said to have violated the terms of the 1990 Act by accepting procedurally flawed recommendations.” Id. at 474. The Court held that prior Supreme Court cases “establish that claims simply alleging that the President has exceeded his statutory authority are not ‘constitutional’ claims, subject to judicial review.’” Id. at 473; see Sierra Club, 929 F.3d at 712 (N.R. Smith, J., dissenting) (“[O]ur cases do not support the proposition that every action by the President, or by another executive official, in excess of his statutory authority is ipso facto in violation of the Constitution.” (quoting Dalton, 511 U.S. at 472) (emphasis and alterations in original)).
Plaintiffs try to distinguish Dalton. First, RGISC suggests that “the holding in Dalton is narrow and its facts are easily distinguishable from the instant case.” RGISC Opp’n at 56. Particularly, it contends that the Court’s holding in Dalton hinges on the fact that the President’s action there “concern[ed] unreviewable presidential discretion,” which is not present here. Id. Although Dalton did involve a decision committed to the President’s discretion, the Court never mentioned that fact when it determined there was no constitutional claim. See Dalton, 511 U.S. at 471–74. Instead, it only mentioned the President’s broad discretion under the statute when it considered whether it could infer a statutory claim against the President outside the APA
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context. Id. at 474 (assuming “some claims that the President has violated a statutory mandate are judicially reviewable outside the framework of the APA . . . [but] such review is not available when the statute in question commits the decision to the discretion of the President”).19 For that reason, RGISC’s attempt to distinguish this case from Dalton on factual grounds fails.
Next, CBD seeks to narrow Dalton by saying that the Government is trying to “transmute Dalton’s holding that statutory-based claims against the President are not automatically or even presumptively also constitutional claims into a prohibition on the connection between such claims.” CBD Opp’n at 67 (emphasis in original). But CBD is “transmuting” Dalton’s holding. Dalton’s holding is not—as CBD characterizes—that statutory-based claims are not “automatically” or “presumptively also constitutional claims.” Dalton’s holding is explicit: “[C]laims simply alleging that the President has exceeded his statutory authority are not ‘constitutional’ claims, subject to judicial review.” 511 U.S. at 473 (emphasis added).
CBD’s Complaint alleges that “[t]he proclamation and agency implementing actions to identify, transfer, and obligate appropriated funds violate 10 U.S.C. § 2808, DoD FY19 Defense Appropriations Act, and 2019 Consolidated Appropriations Act.” CBD Compl. ¶ 197. In that same paragraph, CBD contends that “Defendants’ unlawful transfer and obligation of appropriated funds for border wall construction violates the Appropriations Clause.” Id. It also alleges that the President failed to “faithfully execute” those statutes. Id. ¶ 201. Though CBD insists that its constitutional claims are “specific and separate” from its statutory claims, CBD
19 RGISC cites a line from Chamber of Commerce v. Reich to support its “narrow holding” proposition. See RGISC Opp’n at 56 (“Dalton’s holding merely stands for the proposition that when a statute entrusts a discrete specific decision to the President and contains no limitations on the President’s exercise of that authority, judicial review of an abuse of discretion claim is not available.” (quoting Chamber of Commerce of the United States v. Reich, 74 F.3d 1322, 1331 (D.C. Cir. 1996))). But RGISC pulls that quote from a section of the court’s opinion dealing with whether the plaintiff had a statutory cause of action against the President outside the APA. See Reich, 74 F.3d at 1330–32 (quoting Dalton, 511 U.S. at 477). Its reference to Dalton cites only the statutory portion of the Supreme Court’s analysis. Id. It does not discuss the constitutional portion of Dalton.
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Opp’n at 67–68, the Court agrees with the Government that CBD is merely recasting its statutory claims.
CBD builds its entire constitutional argument around the allegation that Defendants unlawfully transferred and obligated appropriated funds. But CBD does not argue that §§ 2808 or 8005 themselves are unconstitutional—merely that Defendants misused those statutes to circumvent the CAA. And nowhere does CBD dispute that agencies acted using statutory, not constitutional, authority. At bottom, this is just an allegation that Defendants exceeded their statutory authority. Similarly, CBD’s Take Care Clause claim essentially alleges that the executive officials failed to correctly apply and follow § 2808, § 8005, and the CAA. This again is another way of saying that the President and officials violated those statutes. Under Dalton, CBD cannot recast these types of claims as constitutional. 511 U.S. at 471–72.
RGISC’s constitutional claims fare no better. RGISC’s Complaint alleges that the President and executive officials violated the Appropriations Clause and the Constitution’s Separation of Powers doctrine. RGISC Compl. ¶¶ 142–154. It suggests that its constitutional claims are distinguishable from its statutory claims because Plaintiffs do not allege “that Defendants exceeded their statutory authority; rather, Plaintiffs assert that the statutes invoked by Defendants provide no defense for their unconstitutional actions.” RGISC Opp’n at 55.
But the statutes do provide a valid defense if the officials acted lawfully under each statute. RGISC does not claim that the statutes themselves are unconstitutional. So if the Government lawfully transferred and used appropriated funds as permitted by Congress through §§ 284, 2808, and 9705, then Defendants’ actions could not violate the Appropriations Clause or the Constitution’s Separation of Powers doctrine. As the Government points out, saying that the statutes are “no defense” is essentially the same as saying “Defendants’ actions exceed the
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authority the statutes at issue provide.” Defs.’ RGISC Reply at 43. As explained above, this argument conflicts with Dalton.
Finally, RGISC suggests that it is not bringing a statutory claim because the President relied on his constitutional—not just statutory—powers to proclaim a national emergency. RGISC Opp’n at 55. The President declared a national emergency “by the authority vested in me by the Constitution and the laws of the United States of America, including sections 201 and 301 of the National Emergencies Act (50 U.S.C. 1601 et seq.).” See Proclamation. RGISC suggests that the phrase “by the authority vested in me by the Constitution” means that the President was trying to rely on his Article II as well as statutory powers when he declared an emergency. RGISC Opp’n at 55.
The Government responds, and the Court agrees, that this argument is meritless. See Defs.’ RGISC Reply at 42. The reference to the Constitution “simply acknowledges the President’s constitutional role as chief executive[.]” Id. The NEA requires that the President— and not some other executive official—declare the national emergency. The Government makes no claim of extra-statutory authority here, and the Court will not infer such a power on the President’s behalf. RGISC cannot use this hail Mary argument to allege a constitutional violation where only a statutory one exists.
IV. CONCLUSION For these reasons, the Defendants’ Motions to Dismiss will be granted in part and denied in part. Plaintiffs LCLAA and GreenLatinos will be dismissed as Plaintiffs. President Trump will be dismissed from both cases as a Defendant. The Court will also dismiss Count II and IV of Center for Biological Diversity’s Complaint, except for its CAA § 739 claims; it will also dismiss Counts I, VI, VII, VIII. Counts II, III, and V of Rio Grande International Study Center’s
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Complaint will be dismissed entirely. The Court will also dismiss RGISC’s § 9705 and NEA claims under Count I. It will dismiss all of Count IV of RGISC’s Complaint, except for its CAA § 739 claim. Separate orders will issue.

Dated: April 2, 2020

2020.04.02 17:21:48_-_0_4_'_00'
TREVOR N. McFADDEN, U.S.D.J.

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