Ctr. for Biological Diversity v. Trump

Decision Date02 April 2020
Docket Number Case No. 1:19-cv-00720 (TNM),Case No. 1:19-cv-00408 (TNM)
Citation453 F.Supp.3d 11
Parties CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. Donald J. TRUMP, et al., Defendants. Rio Grande International Study Center, et al., Plaintiffs, v. Donald J. Trump, et al., Defendants.
CourtU.S. District Court — District of Columbia

Anthony T. Eliseuson, Pro Hac Vice, Animal Legal Defense Fund, Chicago, IL, Brian Paul Segee, Pro Hac Vice, Center for Biological Diversity, Los Angeles, CA, Anchun Jean Su, Center for Biological Diversity, Jason C. Rylander, Defenders Of Wildlife, Washington, DC, Tanya Sanerib, Center for Biological Diversity, Seattle, WA, for Plaintiffs.

Andrew I. Warden, Leslie Cooper Vigen, James Mahoney Burnham, U.S. Department of Justice, Washington, DC, for Defendants.



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 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.


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-southwest-border-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 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 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 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 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...

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