NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LA POSTA BAND OF DIEGUEÑO 

MISSION INDIANS OF THE LA POSTA 

RESERVATION, On behalf of itself and on 

behalf of its members as parens patriae, 

Plaintiff-Appellant, 

 v. 

DONALD J. TRUMP, President of the 

United States, in his official capacity; 

MARK T. ESPER, U.S. Secretary of 

Defense, in his official capacity; CHAD F. 

WOLF, Acting U.S. Secretary of Homeland 

Security, in his official capacity; TODD T. 

SEMONITE, Commanding General of the 

U.S. Army Corps of Engineers, in his 

official capacity, 

Defendants-Appellees.

No. 20-55941 

D.C. No. 

3:20-cv-01552-AJB-MSB 

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

Anthony J. Battaglia, District Judge, Presiding

Argued and Submitted October 27, 2020

San Francisco, California

Before: TASHIMA, TALLMAN, and MURGUIA, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

NOV 4 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

This appeal presents a challenge by a federally recognized tribe, the La Posta 

Band of Diegueño Mission Indians (“La Posta” or “Tribe”), to the federal 

government’s funding and construction of border-barrier projects in San Diego and 

Imperial Counties, California. La Posta appeals the district court’s denial of a 

preliminary injunction. Because the parties are familiar with the facts, we do not 

recite them here. We have jurisdiction under 28 U.S.C. § 1292(a)(1), and we 

affirm.

We review a district court’s denial of a preliminary injunction for abuse of 

discretion. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 

2011). A plaintiff seeking a preliminary injunction must demonstrate 

(1) likelihood of success on the merits, (2) irreparable harm absent an injunction, 

(3) that the balance of hardships favors the plaintiff, and (4) that an injunction is in 

the public interest. Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008). When 

the government is a party, the court considers the balance of hardships and the 

public interest factors together. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 

1092 (9th Cir. 2014). 

La Posta contends that our recent decisions in California v. Trump, 963 F.3d 

926 (9th Cir. 2020), and Sierra Club v. Trump, 963 F.3d 874 (9th Cir. 2020) 

(“Sierra Club II”), cert. granted, Trump v. Sierra Club, No. 20-138, 2020 WL 

6121565 (Oct. 19, 2020), establish both an ultra vires cause of action and a cause 
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of action under the Administrative Procedure Act to challenge the Department of 

Defense’s “reprogramming” of funds for border-barrier construction pursuant to

section 8005 of the Consolidated Appropriations Act. See Consolidated 

Appropriations Act, 2020, Pub. L. No. 116-93, div. A, § 8005, 133 Stat. 2317 

(2019). La Posta further asserts that the district court abused its discretion by

failing to recognize either cause of action in concluding that La Posta was not 

likely to succeed on the merits. But assuming for now (before the Supreme Court 

definitively answers the question) that La Posta has a cause of action to challenge 

the funding transfers, we cannot conclude that the district court abused its 

discretion in denying La Posta a preliminary injunction because the district court 

permissibly determined that La Posta had not made a sufficient showing of 

irreparable harm. 

La Posta asserted that absent an injunction the Tribe would be harmed by 

the government’s disturbance of its ancestral burial grounds and its members’ 

inability to practice religious ceremonies at sacred sites. The government 

responded that burial grounds have not previously been documented in the 

construction area or discovered during construction, and the Tribe’s sacred sites 

are still accessible because they are located outside the construction area. The 

district court acted within its discretion in concluding that factual disputes 

undermined La Posta’s showing of these asserted harms. And while the 
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environmental harm we recognized in Sierra Club II is indeed generally

irreparable, All. for the Wild Rockies, 632 F.3d at 1135, La Posta did not plead or 

brief this type of harm in the district court. Therefore, the district court did not 

abuse its discretion in denying injunctive relief.

AFFIRMED.