N. Am. Butterfly Ass'n v. Wolf

• Decision Date: 13 October 2020
• Docket Number: No. 19-5052,19-5052
• Citation: 977 F.3d 1244
• Parties: NORTH AMERICAN BUTTERFLY ASSOCIATION, Appellant v. Chad F. WOLF, in his official capacity as Acting Secretary, United States Department of Homeland Security, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

977 F.3d 1244

NORTH AMERICAN BUTTERFLY ASSOCIATION, Appellant

v.Chad F. WOLF, in his official capacity as Acting Secretary, United States Department of Homeland Security, et al., Appellees

No. 19-5052

United States Court of Appeals, District of Columbia Circuit.

Argued December 5, 2019

Decided October 13, 2020

Timothy K. Beeken, New York, NY, argued the cause and filed the briefs for appellant.

Jeffrey S. Beelaert, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Jeffrey Bossert Clark, Assistant Attorney General, and Eric Grant, Deputy Assistant Attorney General.

Before: Tatel, Millett, and Pillard, Circuit Judges.

Dissenting opinion filed by Circuit Judge Millett.

Pillard, Circuit Judge:

The National Butterfly Center, a 100-acre wildlife sanctuary and botanical garden owned by the nonprofit North American Butterfly Association, lies along the border between the United States and Mexico. Butterfly Center staff discovered in 2017 that a segment of the wall the U.S. Department of Homeland Security (DHS) plans to build on the border with Mexico would run through the Center's premises. After DHS confirmed that plan and asserted control over parts of the Center, the Butterfly Association sued.

The Association contends that DHS’ presence on and use of parts of its property to prepare for and carry out construction of a border wall violate the Fourth and Fifth Amendments to the United States Constitution and two environmental statutes. The district court dismissed all claims, concluding the Association stated no viable constitutional claim and that section 102(c)(2)(A) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, 110 Stat. 3009, 3009-546, as amended (IIRIRA) (codified at 8 U.S.C. § 1103 ), strips jurisdiction over the statutory claims because the DHS Secretary waived application of environmental laws with respect to the construction of roads and physical barriers to be built at the Center. See N. Am. Butterfly Ass'n v. Nielsen , 368 F. Supp. 3d 1, 4 (D.D.C. 2019). We affirm dismissal of the Butterfly Association's statutory and Fourth Amendment claims but reverse dismissal of the Fifth Amendment claim and remand for further proceedings consistent with this opinion.

I. BACKGROUND

In our de novo review of the district court's order dismissing under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) the Butterfly Association's claims, we accept the operative complaint's well-pleaded factual allegations as true and draw all reasonable inferences in the Butterfly Association's favor. See Wash. All. of Tech. Workers v. DHS , 892 F.3d 332, 338-39 (D.C. Cir. 2018). Like the district court, we consider "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) (alteration in original) (quoting EEOC v. St. Francis Xavier Parochial Sch. , 117 F.3d 621, 624 (D.C. Cir. 1997) ).

A. Factual Allegations

Located in southern Texas, the National Butterfly Center attracts visitors to its nature trails, conservation areas, educational exhibits, and plant nursery. See Am. Compl. ¶¶ 15, 46 (J.A. 24, 31). The Center affords visitors the chance to view and learn about wild butterflies as well as the several endangered plant and animal species on its premises. See id . ¶¶ 49-50 (J.A. 32). Because it abuts the Rio Grande River separating Texas from Mexico, the Center falls within DHS’ Rio Grande Valley Border Patrol Sector, a 17,000-square-mile area that DHS patrols to protect border security and police immigration from Mexico. See id . ¶¶ 15, 19 (J.A. 24-25).

Shortly after taking office, President Trump directed DHS to take "all appropriate steps to immediately plan, design, and construct a physical wall along the southern border, using appropriate materials and technology to most effectively achieve complete operational control of the southern border." Executive Order No. 13,767, § 4(a), 82 Fed. Reg. 8793, 8794 (Jan. 25, 2017). As statutory authority for his directive, President Trump invoked IIRIRA, see id ., which for more than a decade has authorized DHS to "deter illegal crossings in areas of high illegal entry into the United States" by "tak[ing] such actions as may be necessary to install additional physical barriers and roads (including the removal of obstacles to detection of illegal entrants) in the vicinity of the United States border," IIRIRA § 102(a). To facilitate such construction, IIRIRA authorizes the DHS Secretary "to waive all legal requirements" that she, "in [her] sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under this section," id . § 102(c)(1), and strips district courts’ jurisdiction over all non-constitutional claims "arising from any action undertaken, or any decision made, by the Secretary" pursuant to the waiver authority, id . § 102(c)(2)(A).

To implement Executive Order No. 13,767, the Secretary sent a memorandum to senior DHS officials that instructed the U.S. Customs and Border Protection (CBP), an agency within DHS, to

immediately begin planning, design, construction and maintenance of a wall, including the attendant lighting, technology (including sensors), as well as patrol and access roads, along the land border with Mexico in accordance with existing law, in the most appropriate locations and utilizing appropriate materials and technology to most effectively achieve operational control of the border.

Memorandum from John Kelly, DHS Sec'y, to Kevin McAleenan, CBP Acting

Comm'r, et al. at 5 (Feb. 20, 2017) (J.A. 415) (DHS Memo). Several months later, in July 2017, the Butterfly Center's Executive Director, Marianna Wright, discovered CBP contractors using heavy equipment to "cut down trees, mow brush, and widen a private road" at the Center. Am. Compl. ¶ 53 (J.A. 33). Noticing that the work crew had already cleared up to eighteen feet on either side of the private roadway within the Center's grounds and observing additional signs of planned construction work, see id . ¶¶ 53-54 (J.A. 33), Wright contacted CBP, which asserted "blanket authority" to conduct border-infrastructure activities at the Butterfly Center, id . ¶ 55 (J.A. 33).

Manuel Padilla, Jr., CBP's Chief Patrol Agent for the Rio Grande Valley Border Patrol Sector, visited the Butterfly Center in August 2017. See id . ¶¶ 19, 56 (J.A. 25, 34). He explained to Wright that the planned border wall would cross through the Center, see id. ¶ 56 (J.A. 34), and that "additional large areas of the Butterfly Center would be cleared for secondary roads and government operations," id . ¶ 57 (J.A. 34). In total, the Butterfly Association would be forced to relinquish control over some two thirds of the Center's premises, see id . ¶ 56 (J.A. 34), which, Wright anticipated, would "effectively destroy[ ] it and leav[e] behind a 70-acre no-man's land between the proposed border wall and the Rio Grande," id . ¶ 15 (J.A. 24-25).

Padilla also informed Wright that CBP had placed sensors at undisclosed locations throughout the Center and instructed the Butterfly Association not to gate or lock the Center. See id . ¶¶ 59-60 (J.A. 34). Padilla cautioned that any gates or locks would be destroyed. See id . ¶ 60 (J.A. 34). Consistent with Padilla's warning that border-wall construction would necessitate a "green uniform presence" of Border Patrol agents, id . ¶ 58 (J.A. 34), CBP now regularly stations its personnel at the Center, see id . ¶ 62 (J.A. 35). CBP agents "assert that vast stretches of the property are off limits to Butterfly Center employees and visitors." Id.

CBP agents and other DHS officials have authority to enter private lands, like the Butterfly Center, within twenty-five miles of any international U.S. border, but that authority is limited to entries "for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States." 8 U.S.C. § 1357(a)(3). DHS defines "patrolling the border" as "conducting such activities as are customary, or reasonable and necessary, to prevent the illegal entry of aliens into the United States." 8 C.F.R. § 287.1(c).

DHS has not analyzed the environmental impact of border wall-related activities conducted at the Butterfly Center since 2017, cf . 42 U.S.C. § 4332(2)(C) ; Am. Compl. ¶ 66 (J.A. 35), nor consulted with other federal agencies about how to minimize the impact of those activities on endangered species, cf . 16 U.S.C. § 1536(a)(2) ; Am. Compl. ¶ 76 (J.A. 37). Crucial to application of IIRIRA's jurisdiction-stripping provision, see IIRIRA § 102(c)(2), when the Butterfly Association filed this suit in December 2017, the DHS Secretary had not yet exercised her statutory authority "to waive [any] legal requirements" she "determine[d] necessary to ensure expeditious construction of the barriers and roads under [IIRIRA section 102(a)-(b) ]," id . § 102(c)(1).

B. Procedural History

The Butterfly Association's suit against DHS comprises four causes of action, two arising under environmental statutes and two under the Constitution. As a statutory matter, the Association claims that DHS’ failure to complete an environmental impact statement or consult with the United States Fish and Wildlife Service in connection with DHS’ activities at the Butterfly Center violated the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq . ; see Am. Compl. ¶¶ 63-71 (J.A. 35-36), and the Endangered Species Act (ESA), 16 U.S.C. §§ 1531 et seq . ; see Am. Compl. ¶¶ 72-78 (J.A. 36-37). The Association also claims DHS seized parts of the National Butterfly Center in violation of the Fourth Amendment, see Am. Compl. ¶¶ 84-89 (J.A. 38), and deprived the Association of various property interests in its Center without due process of law, in violation of the Fifth Amendment, see id . ¶¶ 79-83 (J.A. 37-38). In addition to costs and...