State of California et al v. Trump et al

Filing 143

SECOND DECLARATION of Kenneth Rapuano (May 13, 2019) filed by Department of Defense, David Bernhardt, Mark T. Esper, Steven T. Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, Richard V. Spencer, Donald J. Trump, U.S. Department of Homeland Security, U.S. Department of the Interior, U.S. Department of the Treasury, United States of America, Heather Wilson. (Attachments: # 1 Exhibit Second Declaration of Kenneth Rapuano (dated May 13, 2019))(Warden, Andrew) (Filed on 5/13/2019) Modified on 5/14/2019 (cpS, COURT STAFF).

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JAMES M. BURNHAM
Deputy Assistant Attorney General
JOHN R. GRIFFITHS
Director, Federal Programs Branch
ANTHONY J. COPPOLINO
Deputy Director, Federal Programs Branch
ANDREW I. WARDEN (IN #23840-49)
Senior Trial Counsel
KATHRYN C. DAVIS
MICHAEL J. GERARDI
LESLIE COOPER VIGEN
RACHAEL WESTMORELAND
Trial Attorneys
U.S. Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, NW
Washington, D.C. 20530
Tel.: [phone]
Fax: [phone]
Attorneys for Defendants

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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

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STATE OF CALIFORNIA, et al.,
Plaintiffs,

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No. 4:19-cv-00872-HSG
SECOND DECLARATION OF
KENNETH P. RAPUANO

v.
DONALD J. TRUMP, et al.,
Defendants.

Hearing Date: May 17, 2019
Time: 10:00 a.m.
Place: Oakland Courthouse
Courtroom 2, 4th Floor

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State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG – Second Rapuano Declaration

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Defendants hereby submit the Second Declaration of Kenneth P. Rapuano, Assistant
Secretary of Defense for Homeland Defense and Global Security, dated May 13, 2019.
Mr. Rapuano previously submitted a declaration dated April 25, 2019 (ECF No. 89-10), that

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explained the status of the Department of Defense’s (DoD) support to the Department of

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Homeland Security (DHS) pursuant to 10 U.S.C. § 284 in response to a February 25, 2019, request

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from DHS for assistance in blocking up to 11 specific drug-smuggling corridors along certain

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portions of the southern border of the United States. See First Rapuano Decl. ¶¶ 3-12. The

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declaration explained that the Acting Secretary of Defense agreed to provide assistance to DHS to

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construct fencing to block drug-smuggling corridors in three project areas along of the southern

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border of the United States. Id. ¶ 4. The declaration stated that that the project identified as Yuma

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Sector Project 2 would be constructed pursuant to 10 U.S.C. § 284 with money transferred pursuant

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under section 8005 of the Department of Defense Appropriations Act, 2019, and section 1001 of

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the John S. McCain National Defense Authorization Act for Fiscal Year. Id. ¶¶ 4-6, 9. Mr.

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Rapuano’s second declaration provides updated information about this project and states that the

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U.S. Army Corps of Engineers has decided not to fund or construct Yuma Project 2 under these

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authorities. See Second Rapuano Decl. ¶ 4.

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Mr. Rapuano’s first declaration also explained that DoD was in the process of conducting a

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review of funding that might be available to support up to $1.5 billion of additional § 284 projects

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requested by DHS, and that decisions regarding future transfer of funds and approval of additional

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DHS-requested projects under § 284 were expected in May 2019. See First Rapuano Decl. ¶ 11. Mr.

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Rapuano’s second declaration explains that, on May 9, 2019, the Acting Secretary of Defense

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authorized the funding of four additional projects. See Second Rapuano Decl. ¶ 6. One project is

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located in California (El Centro Project 1), and three projects are located in Arizona (Tucson Sector

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Projects 1, 2, and 3). Id.; see also First Rapuano Decl., Ex. A (describing project locations). To fund

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these four projects, the Acting Secretary of Defense decided to use DoD’s general transfer authority

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under section 8005 of the Department of Defense Appropriations Act, 2019, and section 1001 of

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the John S. McCain National Defense Authorization Act for Fiscal Year 2019, as well as DoD’s

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special transfer authority under section 9002 of the Department of Defense Appropriations Act,

State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG – Second Rapuano Declaration
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2019, and section 1512 of the John S. McCain National Defense Authorization Act for Fiscal Year

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2019, to transfer $1.5 billion between DoD appropriations. See Second Rapuano Decl. ¶ 7. On

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May 10, 2019, the funds were transferred to the U.S. Army Corps of Engineers. Id. ¶ 9. The U.S.

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Army Corps of Engineers expects to award contracts for the four projects by May 16, 2019, and

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construction will begin no earlier than 45 days after the award of the contracts. Id. ¶¶ 10-11.

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DATE: May 13, 2019

Respectfully submitted,
JAMES M. BURNHAM
Deputy Assistant Attorney General
JOHN G. GRIFFITHS
Director, Federal Programs Branch
ANTHONY J. COPPOLINO
Deputy Director, Federal Programs Branch
/s/ Andrew I. Warden
ANDREW I. WARDEN
Senior Trial Counsel (IN Bar No. 23840-49)
RACHAEL L. WESTMORELAND
KATHRYN C. DAVIS
MICHAEL J. GERARDI
LESLIE COOPER VIGEN
Trial Attorneys
U.S. Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, NW
Washington, D.C. 20530
Tel.: [phone]
Fax: [phone]

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State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG – Second Rapuano Declaration
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