UNITED STATES DISTRICT COURT

FoR THE DISTRICT oF CoLUMBIA F I L E D
NoRTH AMERICAN BUTTERFLY FEB 1 4 2019
ASSOCIATICN’ Clerk, u.s. District and
Bankruptcy Courts
Plaintiff,
v. Civil Case No. 17-2651 (RJL)

)
)
)
)
)
)
)
KIRSTJEN M. NIELSEN, er al. )
)
)

Defendants.

1b

MEMORANDU`M OPINION
(February l#, 2019) [Dkt. ## 25, 34]

The 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 l2(b)(l) and lZ(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. 11 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 1111 46-47. The Butterfly Center is home to a number of wildlife species listed as
threatened or endangered under federal law. Id. at 1 49. The Butterfiy 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.

2

Id. at 11 l9. 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. atjl 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. jj 53. The
executive director also noticed “surveyor flags” elsewhere on the property. Ia’. at 11 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 jj 55. On August l, 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.” Ia’. at jj 56. The Chief
Patrol Agent also referred to “sensors” that had been placed in undisclosed locations on
Center property. Ia’. at jj 59. Plaintiff alleges that since the August l, 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. Ia’. at 1111 61-62.

Plaintiff filed a complaint for declaratory and injunctive relief on December ll,
2017, see Compl. [Dkt. # l], 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

3

Fourth and Fifth Amendment rights. Ia’. at 1111 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 lllegal 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”

1 Section 102 also

physical barriers and roads along the United States-Mexico border.
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. HRIRA § 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. ll, 2018)
(“Waiver Determination”). The Secretary “waive[d] in their entirety,” inter alz'a, 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

 

l References to § 102 as currently constituted are cited herein as “HRIRA § 102.”
4

preparation, and installation and upkeep of physical barriers, roads, supporting elements,
drainage, erosion controls, safety features, lighting, cameras, and sensors) in the project
area.” Ia’. 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 l2(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 Lujcm v. Defenders Of Wl`ldll`fe, 504 U.S. 555, 561 (1992); see also Bank ofAmerz`ca,
N.A. v. FDIC, 908 F.Supp.2d 60, 76 (D.D.C. 2012). Because “subject-matterjurisdiction
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.”’ Akl`nseye v. Dz`strz`ct of Columbia, 339
F.3d 970, 971 (D.C. Cir. 2003) (quoting Ins. Corp. oflr., Lta’. v. Compagnie des Bauxl`tes
de Guinee, 456 U.S. 694, 702 (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.” chk ofAmerz`ca, 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
Browm`ng v. Cll'nton, 292 F.3d 235, 242 (D.C. Cir. 2002). To survive a l2(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 (2009) (internal quotation

5

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.?’ Ia’. 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 zt of Health & Human Servs.,
760 F.3d l, 4 (D.C. Cir. 2014).
ANALYSIS
I. Constitutional Claims

ln 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.

 

2 The jurisdictional impact of the Secretary’s October 2018 Waiver Deterinination
is discussed in detail infra. Nevertheless, it bears mentioning at this point that NABA’s
constitutional claims do not appear to “aris[e] from” the Secretary’s waiver authority such
that § 102(c)(2)(A)’s jurisdictional carve-out would apply. However, defendants do not
argue_and the Waiver Determination does not indicate_that the Secretary’s waiver of
“all legal requirements” relating to barrier and road construction extends beyond the
enumerated statutory requirements to extinguish constitutional claims arising from those
activities. I will assume that the courthouse doors remain open to such claims to avoid the
“serious constitutional question that would arise if a federal statute were construed to deny
any judicial forum for a colorable constitutional claim.” Webster v. Doe, 486 U.S. 592,
603 (1988) (internal quotation marks omitted);' see also American Coalitz`on for
Competitive Tma’e v. Clinton, 128 F.3d 761, 765 (1997) (“To be sure, a statute that totally
precluded judicial review for constitutional claims would clearly raise serious due process
concerns.”).

Compl. 1111 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 1111 46, and no factual allegations suggest that defendants entered or searched
without consent any physical structures on the Center’s property. Thus, while plaintiff
perhaps could seek damages under a trespass theory,3 for constitutional purposes the
property at issue amounts to an “open field,” which is “unprotected by the Fourth
Amendment, even when privately owned.” United States v. Johiason, 561 F.2d 832, 858
n.13 (D.C. Cir. 1977) (Bazelon, C.J., dissenting); see also United States v. Alexana’er, 888
F.3d 628, 631 (2d Cir. 2018) (“that portion of private property that extends outside a
home’s curtilage_what the caselaw terms an ‘open field’_is beyond the purview of the
Fourth Amendment, and can be warrantlessly and suspicionlessly searched without
constitutional impediment”). Moreover, the Butterfly Center’s proximity to the United
States’ border with Mexico confirms that NABA has-not stated a Fourth Amendment claim.
lt is well established that “searches made at the border, pursuant to the long-standing right
of the sovereign to protect itself by stopping and examining persons and property crossing

into this country, are reasonable simply by virtue of the fact that they occur at the border.”

 

3 Such a trespass claim would have to be brought pursuant to the Federal Tort Claims
Act (“FTCA”), 28 U.S.C. §§ 1346(b)(1), 2679(b)(1), before it could be brought in this
Court. See 28 U.S.C. §§ 2401(b), 2675; McNez‘l v. UnitedStates, 508 U.S. 106, 112 (1993);
Moher v. Um`z‘ea’ States, 875 F.Supp.2d 739, 751 (W.D. Mich. 2012) (considering tort
claims based on warrantless entry of border patrol agents on private timber land after
plaintiff had exhausted FTCA administrative remedy).

United States v. Gurr, 471 F.3d 144, 148 (D.C. Cir. 2006) (quoting United States v.
Ramsey, 431 U.S. 606, 616 (1977)); see 8 U.S.C. § 1357(a) (immigration officers “shall
have the power without warrant . . . within a distance of twenty-five miles from any such
external boundary to have access to private lands, but not dwellings, for the purpose of
patrolling the border to prevent the illegal entry of aliens into the United States”).

As such, the confluence of the Butterfly Center’s open field status and defendants’
constitutional and statutory authority at the border compels dismissal of NABA’s Fourth
Amendment claim under Rule 12(b)(6). See Molzer v. United States, 875 F.Supp.2d 739,
773-89 (W.D. Mich. 2012) (dismissing Fourth Amendment claim based on border patrol
officers’ warrantless entry on private timber land because land was “open field” under
Fourth Amendment and, in passing 8 U.S.C. § 1357.(a), Congress “reasonably determined
that warrantless searches in open fields on private land located within 25 miles of the
external borders of the United States are necessary to effectively carry out and enforce the
federal regulatory scheme” governing alien immigration); Boargeol`s v. Peters, 387 F.3d
1303, 1314-15 (11th Cir. 2004) (“[s]ituations in which such expectations [of privacy] are
reduced include . . .-border searches, and searches of open fields” (footnotes omitted)).

b. Fifth Amendment

The Amended Complaint asserts that defendants have deprived NABA of its
property in violation of the Fifth Amendment’s Due Process Clause. See Am. Compl.
1111 34~39, 80_83. This claim also fails.

Insofar as NABA’s claim is predicated on an alleged failure to comply with

IIRIRA’s property condemnation provisions, that preemptive challenge is not ripe. See

8

Am. Compl. 11 83 (“Defendants have not sought to acquire an interest in NABA property
or followed any of the steps for doing so”); Texas Border Coal. v. Napolz`z‘ano, 614
F.Supp.2d 54, 59-63 (D.D.C. 2009) (“It would . . . thwart congressional will, to allow the
plaintiff`s members to preemptiver challenge an anticipated condemnation when the
Department’s decision to pursue this course has not yet been rendered.”). Similarly unripe
is plaintiff’ s claim that “[p]roposed border wall construction” amounts to a constitutional
deprivation. Am. Compl. 1182;see, e.g., Texas v. United States, 523 U.S. 296, 300 (1998)
(“[A] claim is not ripe for adjudication if it rests upon contingent future events that may
not occur as anticipated, or indeed may not occur at all.” (internal quotation marks
omitted)). And finally, to the extent that NABA’s.allegations can be read to support an
authorized-but-uncompensated taking claim, that claim too is premature. “[A] takings
lawsuit is premature if it is brought before plaintiffs have sought compensation in the form
of damages.” Firearms Import/Export Rouna'table Traa’e Grp. v. Jones, 854 F.Supp.2d 1,
20-21 (D.D.C. 2012) (dismissing takings claim for injunctive relief where plaintiffs failed
to first seek damages under the Tucker Act); see also Wz`llz'amson Counzy Regz`onal
Plannz'ng Comm’n v. Hamilton Bank of Johnson Cily, 473 U.S. 172, 194-95 (1985);
StuclentLoan Mktg. Ass'n v. Rz'ley, 104 F.3d 397, 401 (D.C. Cir. 1997).

Accordingly, plaintiff` s Fifth Amendment claim, as alleged in the Amended
Complaint, also must be dismissed See, e.g., Sierra Club v. Jackson, 648 F.3d 848, 853
(D.C. Cir. 2011) (certainjusticiability questions should be addressed under Rule 12(b)(6));

Matthew A. Golalstel`n, PLLC v. U.S. Dep’t ofState, 153 F.Supp.3d 319, 331 n.9 (D.D.C.

2016) (matters of prudential ripeness may be properly resolved under Rule l2(b)(6), rather
than Rule 12(b)(1)), ajj”’a’, 851 F.3d 1 (D.C. Cir. 2017).
II. Statutory Claims

lt is undisputed that the DHS Secretary’s October 2018 Waiver Determination, if
validly exercised, deprives the Court of jurisdiction to hear plaintiff` s NEPA and ESA
claims. “Only Congress may determine a lower federal court’s subject-matter
jurisdiction.” Kontrz'ck v. Ryan, 540 U.S. 443, 452 (2004) (citing U.S. Const. art. III, § 1).
And “when it comes to jurisdiction, the Congress giveth and the Congress taketh away.”
ln re al-Nashiri, 791 F.3d 71, 76 (D.C. Cir. 2015); see 5 U.S.C. § 701(a)(1) (APA does not
apply where “statute[] preclude[s] judicial review”); Robbins v. Reagan, 780 F.2d 37, 42
(D.C. Cir. 1985) (APA and federal questionjurisdiction are “subject . . . to preclusion-of-
review statutes created or retained by Congress”). In the case of IIRIRA, Congress
expressly granted to the Secretary the authority to “waive all legal requirements” that, in
the “Secretary’s sole discretion, [are] necessary to ensure expeditious construction of the
barriers and roads” described in the statute. IIRIRA § 102(c)(1). As such, “a valid waiver
of the relevant environmental laws under section 102(c) is an affirmative defense to all [of
plaintist] environmental claims.” In re Border Infrastructure Environmental Liz‘z`g., --
F.3d --, 2019 WL 509813, at *5 (9th Cir. Feb. 11, 2019).

NABA does not argue that the geographic scope of the Secretary’s Waiver
Determination fails to encompass the Butterfly Center. See Waiver Determination, 83 Fed.
Reg. at 51473 (defining covered area). Thus, the waiver extinguishes plaintiff`s NEPA

and ESA claims, as those statutes (and the APA) create “legal requirements” that no longer

10

apply to actions related to “the construction of roads and physical barriers”_e.g.,
excavation, site preparation, installation and upkeep of barriers, roads, and sensors_in the
covered area. Ia’. at 51473-74; see In re Border Infrastructure Envz`ronmental Ll`tz`g., --
F.3d --, 2019 WL 509813, at *9 (“The Secretary has waived the legal requirements that
[plaintiffs] allege DHS violated.”). It is of no moment that the waiver was issued after the
commencement of this action. See In re Border Infrastructure Environmental Litig., 2019
WL 509813, at *5 n.8 (rejecting argument that previously effective statutory requirements
survive waiver because “the waiver provision says nothing about when the agency must
invoke its authority,” and thus no “relief could be granted once DHS issued the waivers”).

IIRIRA also expressly precludes federal court 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); Save Oar Herl'tage Org. v. Gonzales, 533 F. Supp. 2d
58, 60 (D.D.C. 2008) (“The only claims permitted under the [IIRIRA] waiver provision
are those ‘alleging a violation of the Constitution.”’ (quoting IIRIRA § 102(c)(2)(A)). In
other words, IIRIRA not only permits the Secretary to waive NEPA and the ESA, but it
also precludes any non-constitutional challenge to the waiver itself.

However, IIRIRA’s preclusion-of-review provision does not end the matter. NABA
contends that l may review whether the Secretary’s waiver was ultra vires for failure to
consult with other stakeholders, as required under IIRIRA § 102(b)(1)(C). While
defendants respond that such non-statutory review is also foreclosed, it is well established

in our Circuit that “even where a statute precludes judicial review, ‘judicial review is

11

available when an agency acts ultra vires.”’ Sky Televisiorz, LLC v. F. C.C., 589 Fed.Appx.
541, 543 (D.C. Cir. 2014) (quoting Al`clAss’rzfor Lutherans v. U.S. Postal Serv., 321 F.3d
1166, 1173 (D.C. Cir. 2003)). Not surprisingly, however, non-statutory review of agency
action is “of extremely limited scope.” Griyj‘z`th v. Fea’. Labor Relatz`orzs Auz‘h., 842 F.2d
487, 493 (D.C. Cir. 1988); see also Trua’eau v. Fea’eral Traa’e Comm 'n, 456 F.3d 178, 190
(D.C. Cir. 2006). “lf a no-review provision shields particular types of administrative
action, a court may not inquire whether a challenged agency decision is arbitrary,
capricious, or procedurally defective.” Amgerz, Irzc. v. sz`th, 357 F.3d 103, 113 (D.C. Cir.
2004). The Court must only “determine whether the challenged agency action is of the sort
shielded from review.” Ia’.

Here, the Secretary’s waiver “is of the sort shielded from review” under IIRIRA,
and plaintiff’ s ultra vires argument is predicated on an alleged procedural defect. See ia’.
The consultation provision on which NABA relies provides that “[i]n carrying out this
section, the Secretary of Homeland Security shall consult with the Secretary of the Interior,
the Secretary of Agriculture, States, local governments, lndian tribes, and property owners
in the United States to minimize the impact on the environment, culture, commerce, and
quality of life for the communities and residents located near the sites at which such fencing
is to be constructed.” IIRIRA § 102(b)(1)(C). Although the statutory language is phrased
in mandatory terms, the provision “does not provide any specific limitation or guidance
concerning when or how consultation is to occur except expressly stating who shall be
consulted.” 1a re Border Infrastructure Envz'ronmental Ll`tig., 284 F.Supp.3d 1092, 1126

(S.D. Cal. 2018), a/j”a’, 2019 WL 509813 (9th Cir. Feb. 11, 2019). ln other words, IRIRA

12

is silent as to whether the consultation required must occur prior to a waiver determination.
l\/loreover, the decision whether to exercise the waiver authority is in the Secretary’s “sole
discretion.” HRIRA § 102(c)(1). The statute neither requires the Secretary to consult with
the stakeholders identified in § 102(b)(1)(C) before exercising her waiver authority, nor
indicates that the Secretary’s waiver power in any way depends on the views of those third
parties.

Pre-waiver consultation may be wise policy, but it not a statutory requirement As
such, even assuming the complete absence of consultation here, l cannot conclude that the
Secretary’s Waiver Determination was plainly in excess of her delegated statutory powers
or contradicted a clear statutory mandate. See In re Border Infrastructure Environmental
Litigation, 284 F.Supp.3d at 1126 (rejecting ultra vires argument that Secretary exceeded
“delegated powers by approving the waivers or executing construction contracts prior to
completing the consultation process” because HRIRA lacks “a ‘clear and mandatory’
mandate regarding the timing of consultation”); Grijj”zth, 842 F.2d at 493. My jurisdiction
therefore does not extend beyond NABA’s constitutional claims, and its statutory claims

must be dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction.

13

CONCLUSION
For the foregoing reasons, defendants’ motions to dismiss are hereby GRANTED,
plaintiff’s constitutional claims are DISMISSED without prejudice, and plaintiff’ s
statutory claims are DISMISSED with prejudice. A separate order consistent with this

decision accompanies this Memorandum Opinion.

   
    
 

RIciT/-`\RDJ.
United States

14

