N. Am. Butterfly Ass'n v. Nielsen

• Decision Date: 14 February 2019
• Docket Number: Civil Case No. 17-2651 (RJL)
• Citation: 368 F.Supp.3d 1
• Parties: NORTH AMERICAN BUTTERFLY ASSOCIATION, Plaintiff, v. Kirstjen M. NIELSEN, et al., Defendants.
• Court: U.S. District Court — District of Columbia

368 F.Supp.3d 1

NORTH AMERICAN BUTTERFLY ASSOCIATION, Plaintiff,

v.Kirstjen M. NIELSEN, et al., Defendants.

Civil Case No. 17-2651 (RJL)

United States District Court, District of Columbia.

Filed February 14, 2019

Timothy K. Beeken, David Donatti, Pro Hac Vice, Harry Zirlin, Pro Hac Vice, DeBevoise & Plimpton LLP, New York, NY, for Plaintiff.

Clifford Eugene Stevens, Jr., Lila Clarissa Jones, Tyler McVeigh Alexander, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

[Dkt. ## 25, 34]

RICHARD J. LEON, United States District JudgeThe North American Butterfly Association ("NABA" or "plaintiff"), a non-profit organization devoted to butterflies and butterfly habitat conservation, brought this action against Department of Homeland Security ("DHS") Secretary Kirstjen Nielsen, United States Customs and Border Protection ("CBP") Acting Commissioner Kevin McAleenan, United States Border Patrol ("USBP") Acting Chief Carla Provost, and CBP Rio Grande Valley Sector Chief Patrol Agent Manuel Padilla, Jr., each in their official capacities (collectively, "defendants"). NABA seeks declaratory and injunctive relief based on alleged constitutional and statutory violations arising from defendants' border wall preparation and law enforcement activities at NABA's National Butterfly Center ("Butterfly Center"), which is located near the United States-Mexico border in South Texas. Pending before me are defendants' motions to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

Upon consideration of the pleadings and the relevant law, and for the reasons stated below, defendants' motions to dismiss are GRANTED, and this case is DISMISSED.

BACKGROUND

On January 25, 2017, President Donald Trump issued Executive Order No. 13767, directing the DHS Secretary to "take all appropriate steps to immediately plan, design, and construct a physical wall along the southern border" with Mexico. 82 Fed. Reg. 8793, 8794. On February 20, 2017, former DHS Secretary John Kelly issued a memorandum implementing the Executive Order. See Mem. Re: Implementing the President's Border Security and Immigration Enforcement Improvements Policies (February 20, 2017) [Dkt. # 25-2, Att. E]. Secretary Kelly's memorandum directed CBP 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." Id. at 5. Neither the Executive Order, nor the implementing memorandum, identifies any particular location or specific infrastructure projects for the planning or construction of the physical barrier wall.

NABA is a non-profit organization dedicated to conserving butterflies and butterfly habitats. Am. Compl. ¶ 15. NABA owns and operates the Butterfly Center, a 100-acre wildlife center and botanical garden located in South Texas abutting the Rio Grande river. Id. at ¶¶ 46–47. The Butterfly Center is home to a number of wildlife species listed as threatened or endangered under federal law. Id. at ¶ 49. The Butterfly Center is also situated in the Rio Grande Valley Border Patrol Sector ("RGV Sector"), a USBP designation for the 17,000 square-mile geographical patrol area encompassing the Center. Id. at ¶ 19. Although not expressly alleged, plaintiff does not appear to dispute that the Butterfly Center is located within twenty-five miles of the southern border with Mexico. See id. at ¶ 15; Pl.'s Opp'n at 2, 22 [Dkt. # 30].

NABA alleges that on July 20, 2017, the Butterfly Center's executive director identified a work crew on Center property using heavy equipment to "cut down trees, mow brush, and widen a private road that runs" through the Center. Am. Compl. ¶ 53. The executive director also noticed "surveyor flags" elsewhere on the property. Id. at ¶ 54. The executive director contacted CBP, which confirmed that the agency was responsible for the work crew, had authority for the activity, and would provide further clarity about the work. Id. at ¶ 55. On August 1, 2017, the Chief Patrol Agent for the RGV Sector and two CBP agents visited the Butterfly Center and showed the executive director "a draft proposal for the border wall, including a segment through the Butterfly Center." Id. at ¶ 56. The Chief Patrol Agent also referred to "sensors" that had been placed in undisclosed locations on Center property. Id. at ¶ 59. Plaintiff alleges that since the August 1, 2017 meeting, CBP officials have, on one occasion, "followed and temporarily detained" the executive director and a reporter and have "regularly station[ed]" themselves on Center property rather than patrolling. Id. at ¶¶ 61–62.

Plaintiff filed a complaint for declaratory and injunctive relief on December 11, 2017, see Compl. [Dkt. # 1], which it amended on March 28, 2018, see Am. Compl. [Dkt. # 19]. Based on the foregoing factual allegations, NABA claims that defendants have failed to comply with their statutory obligations under the National Environmental Policy Act ("NEPA") and the Endangered Species Act ("ESA") and have violated NABA's Fourth and Fifth Amendment rights. Id. at ¶¶ 63–89. Defendants moved to dismiss the Amended Complaint on May 25, 2018, arguing that NABA's statutory and constitutional claims are unripe and/or otherwise defective. See [Dkt. # 25].

On October 12, 2018, defendants filed a notice informing the Court of a determination by DHS Secretary Nielsen pursuant to § 102 of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), 8 U.S.C. § 1103 note, which authorizes the Secretary to "waive all legal requirements"—including the ESA and NEPA—that the Secretary "determines necessary to ensure expeditious construction of" physical barriers and roads along the United States-Mexico border.¹ Section 102 also deprives federal courts of jurisdiction to review any non-constitutional "causes or claims" that "aris[e] from any action undertaken, or any decision made, by the Secretary of Homeland Security pursuant to" the Secretary's waiver authority. IIRIRA § 102(c)(2)(A).

The Secretary invoked her waiver authority on October 4, 2018, applying it to certain areas within the RGV Sector that include NABA's Butterfly Center property. See Determination Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as Amended, 83 Fed. Reg. 51472, 51473 (Oct. 11, 2018) ("Waiver Determination"). The Secretary "waive[d] in their entirety," inter alia, NEPA, the ESA, and the Administrative Procedure Act ("APA") "with respect to the construction of roads and physical barriers (including, but not limited to, accessing the project area, creating and using staging areas, the conduct of earthwork, excavation, fill, and site preparation, and installation and upkeep of physical barriers, roads, supporting elements, drainage, erosion controls, safety features, lighting, cameras, and sensors) in the project area." Id. at 51473–74. Accordingly, defendants filed a supplemental motion to dismiss contending that the Waiver Determination extinguishes plaintiff's NEPA and ESA claims by depriving this Court of subject matter jurisdiction over them. See [Dkt. # 34].

LEGAL STANDARD

On a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ; see also Bank of America, N.A. v. FDIC, 908 F.Supp.2d 60, 76 (D.D.C. 2012). Because "subject-matter jurisdiction is an ‘Art[icle] III as well as a statutory requirement[,] no action of the parties can confer subject-matter jurisdiction upon a federal court.’ " Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003) (quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982) ). In considering a 12(b)(1) motion to dismiss, a court need not limit itself to the complaint, but rather "may consider such materials outside the pleadings as it deems appropriate to resolve the question whether it has jurisdiction in the case." Bank of America, N.A. v. FDIC, 908 F.Supp.2d 60, 76 (D.D.C. 2012) (quotation marks omitted).

A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). To survive a 12(b)(6) motion, a complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). A claim is facially plausible when the complaint allegations allow the Court to "draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. In resolving a Rule 12(b)(6) motion, "[t]he [C]ourt assumes the truth of all well-pleaded factual allegations in the complaint and construes reasonable inferences from those allegations in the plaintiff's favor[.]" Sissel v. U.S. Dep't of Health & Human Servs. , 760 F.3d 1, 4 (D.C. Cir. 2014).

ANALYSIS

I. Constitutional Claims

In its Amended Complaint, NABA asserts claims under the Fourth and Fifth Amendments. I will address these in turn.²

a. Fourth Amendment

NABA contends that defendants have violated and will continue to violate the Fourth Amendment by entering Butterfly Center property without consent or warrant. Am. Compl. ¶¶ 85–89. Unfortunately for plaintiff, the Fourth Amendment offers little refuge for unenclosed land near one of the country's external borders. The Amended Complaint is clear that the Butterfly Center consists of 100 acres of open land accessible to the visiting public, id. at ¶¶ 46, and no factual allegations suggest that defendants entered or searched without consent any physical structures on the Center's property. Thus, while plaintiff...