State of California et al v. Trump et al

Filing 183

REPLY (re 176 MOTION for Partial Summary Judgment ) filed byState of California, State of New Mexico. (Attachments: # 1 Declaration, # 2 Request for Judicial Notice)(Sherman, Lee) (Filed on 6/24/2019)

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XAVIER BECERRA
Attorney General of California
ROBERT W. BYRNE
SALLY MAGNANI
MICHAEL L. NEWMAN
Senior Assistant Attorneys General
MICHAEL P. CAYABAN
CHRISTINE CHUANG
EDWARD H. OCHOA
Supervising Deputy Attorneys General
BRIAN J. BILFORD
NOAH M. GOLDEN-KRASNER
SPARSH S. KHANDESHI
HEATHER C. LESLIE
JANELLE M. SMITH
JAMES F. ZAHRADKA II
LEE I. SHERMAN (SBN 272271)
Deputy Attorneys General
300 S. Spring St., Suite 1702
Los Angeles, CA 90013
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Plaintiff State of California

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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STATE OF CALIFORNIA et al.;

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Plaintiffs, PLAINTIFF STATES OF CALIFORNIA
AND NEW MEXICO’S REPLY IN
v.
SUPPORT OF MOTION FOR PARTIAL
SUMMARY JUDGMENT REGARDING
SECTIONS 284, 8005, AND 9002, AND
DONALD J. TRUMP, in his official capacity OPPOSITION TO DEFENDANTS’
as President of the United States of America MOTION FOR PARTIAL SUMMARY
et al.;
JUDGMENT

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Case No. 4:19-cv-00872-HSG

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Defendants. Judge:
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The Honorable Haywood S.
Gilliam, Jr.
Trial Date:
None set
Action Filed: February 18, 2019

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Pl. States’ Reply ISO Mot. for Partial Summ. J. and Opp’n to Defs.’ Mot. for Partial Summ. J. (4:19-cv-00872-HSG)

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TABLE OF CONTENTS

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Page

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INTRODUCTION .......................................................................................................................... 1
ARGUMENT .................................................................................................................................. 1
I.
California and New Mexico Are Entitled to Partial Summary Judgment that
Defendants’ Actions Are Unlawful ......................................................................... 1
A.
Defendants Exceeded Their Authority Under §§ 8005, 9002, and
284 ............................................................................................................... 1
1.
Defendants Cannot Preclude Judicial Review ................................ 1
2.
Defendants Exceeded Their Authority Under § 8005 ..................... 4
3.
Defendants Have Exceeded Their Authority Under § 9002 ........... 5
4.
Defendants Have Exceeded Their Authority Under § 284 ............. 6
B.
Defendants’ Actions Violate the United States Constitution ...................... 7
1.
Defendants Violated Separation of Powers Principles.................... 8
2.
Defendants Violated the Appropriations Clause ............................. 9
3.
Defendants Violated the Presentment Clause ............................... 10
C.
Defendants Have Violated the APA ......................................................... 11
II.
California and New Mexico Are Entitled to Injunctive Relief ............................. 12
A.
California and New Mexico Would Suffer Irreparable Harm .................. 12
1.
Harms to California’s and New Mexico’s Sovereignty ................ 12
2.
Harms to California’s and New Mexico’s Environment,
Wildlife, and Natural Resources ................................................... 13
B.
The Balance of Hardships and Public Interest Favor Granting a
Permanent Injunction ................................................................................ 14
C.
Enjoining Any Use of §§ 8005, 9002, and 284 for Barrier
Construction in California and New Mexico Is Appropriate .................... 15
CONCLUSION ............................................................................................................................. 15

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TABLE OF AUTHORITIES

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Page

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CASES

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Armstrong v. Exceptional Child Ctr., Inc.
135 S. Ct. 1378 (2015) ................................................................................................................1

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Associated Gen. Contractors of California, Inc. v. Coal. for Econ. Equity
950 F.2d 1401 (9th Cir. 1991)...................................................................................................14
Citizens to Preserve Overton Park, Inc. v. Volpe
401 U.S. 402 (1971) ....................................................................................................................3
City of Sausalito v. O’Neill
386 F.3d 1186 (9th Cir. 2004).................................................................................................2, 3
Clarke v. Sec. Indus. Ass’n
479 U.S. 388 (1987) ................................................................................................................2, 3
Clinton v. City of New York
524 U.S. 417 (1998) ........................................................................................................7, 11, 13
Crickon v. Thomas
579 F.3d 978 (9th Cir. 2009).....................................................................................................11
Dalton v. Specter
511 U.S. 462 (1994) ................................................................................................................7, 8
E. Bay Sanctuary Covenant v. Trump
909 F.3d 1219 (9th Cir. 2018)...................................................................................................15
Feldman v. Wood
335 F.2d 264 (9th Cir. 1964).......................................................................................................5

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First Nat’l. Bank & Tr. Co. v. Nat’l Credit Union Admin.
988 F.2d 1272 (D.C. Cir. 1993) ..................................................................................................4
Haitian Refugee Ctr. v. Gracey
809 F.2d 794 (D.C. Cir. 1987) ....................................................................................................1
Kansas v. United States
249 F.3d 1213 (10th Cir. 2001).......................................................................................3, 12, 13

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Lexmark Int’l, Inc. v. Static Control Components, Inc.
572 U.S. 118 (2014) ....................................................................................................................2
Lincoln v. Vigil
508 U.S. 182 (1993) ....................................................................................................................5
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TABLE OF AUTHORITIES
(continued)

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Page

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CASES

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Mach Mining, LLC v. E.E.O.C.
135 S. Ct. 1645 (2015) ................................................................................................................3

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Maryland v. King
567 U.S. 1301 (2012) ................................................................................................................12
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak
567 U.S. 209 (2012) ....................................................................................................................2
Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co.
463 U.S. 29 (1983) ....................................................................................................................12
Nat’l Wildlife Fed’n v. Burlington N.R.R.
23 F.3d 1508 (9th Cir. 1994).....................................................................................................14
Nevada v. DOE
400 F.3d 9 (D.C. Cir. 2005) ..................................................................................................9, 10
New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co.
434 U.S. 1345 (1977) ................................................................................................................12
Nken v. Holder
556 U.S. 418 (2009) ..................................................................................................................15
Office of Pers. Mgmt v. Richmond
496 U.S. 414 (1990) ....................................................................................................................9
Rodriguez v. Robbins
715 F.3d 1127 (9th Cir. 2013)...................................................................................................15

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Salazar v. Ramah Navajo Chapter
567 U.S. 1820 (2012) ..................................................................................................................9
Scheduled Airlines Traffic Offices, Inc. v. Dep’t of Def.
87 F.3d 1356 (D.C. Cir. 1996) ................................................................................................2, 3
United States v. Will
449 U.S. 200 (1980) ..................................................................................................................10

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Whitman v. Am. Trucking Ass’ns
531 U.S. 457 (2001) ....................................................................................................................6
Youngstown Sheet & Tube Co. v. Sawyer
343 U.S. 579 (1952) ................................................................................................................7, 8
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TABLE OF AUTHORITIES
(continued)

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Page

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CASES

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Zadvydas v. Davis
533 U.S. 678 (2001) ....................................................................................................................7

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FEDERAL STATUTES

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5 U.S.C.
§ 706(2)(A)................................................................................................................................11
§ 706(2)(B)-(C) .........................................................................................................................11

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10 U.S.C.
§ 284 .................................................................................................................................. passim
§ 284(b)(7) ................................................................................................................................10
§ 284(h)(1)(B), (i)(3)...................................................................................................................6
§ 2801(a) .....................................................................................................................................6

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Pub. L. No. 101-511, 104 Stat. 1856 (1990) ...................................................................................10
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Pub. L. No. 109-234, 120 Stat. 418 (2006) .....................................................................................10
Pub. L. No. 110-116, 121 Stat. 1295 (2007) ...................................................................................10
Pub. L. No. 115-245, 132 Stat. 2981 (2018) ........................................................................... passim

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Pub. L. No. 116-6, 133 Stat. 13 (2019) .............................................................................................8

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OTHER AUTHORITIES

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Government Accountability Office, Office of the General Counsel, Principles of
Federal Appropriations Law (4th Ed. 2017) (GAO Red Book) ...........................................9, 10

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H.R. Rep. No. 93-662 (1973) ............................................................................................................3
H.R. Rep. No. 101-665 (1990) ......................................................................................................3, 6

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INTRODUCTION
In their Opposition, 1 Defendants raise no new arguments sufficient to change this Court’s

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prior conclusion that Defendants acted unlawfully by diverting DOD funds appropriated for other

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purposes toward border barrier construction that Defendants requested but Congress denied. The

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record now is even stronger that Defendants not only acted ultra vires, but violated the United

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States Constitution and the APA. Defendants have also raised no genuine disputes of material fact

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to rebut California’s and New Mexico’s (Plaintiff States or States) irreparable injuries caused by

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the diversions. And the border barrier does not advance the United States’ interest in drug

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interdiction enough to outweigh the public interest in enjoining unlawful and unconstitutional

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executive branch conduct, enforcing the States’ duly enacted laws, and protecting the States’

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environment. The States are entitled to a declaratory judgment and injunction of the transfer,

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obligation, and use of funds via §§ 8005, 9002, and 284 toward construction of border barriers in

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California and New Mexico. This Court should grant Plaintiff States’ motion for partial summary

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judgment and deny Defendants’ cross-motion.
ARGUMENT

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I.

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CALIFORNIA AND NEW MEXICO ARE ENTITLED TO PARTIAL SUMMARY JUDGMENT
THAT DEFENDANTS’ ACTIONS ARE UNLAWFUL
A.

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Defendants Exceeded Their Authority Under §§ 8005, 9002, and 284
1.

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Defendants Cannot Preclude Judicial Review

Defendants’ argument that the Plaintiff States are not within the zone of interests of

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§§ 8005 and 9002—and, for the first time, § 284, Opp’n 9-10, 12-13—fails. As this Court

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correctly recognized, an equitable cause of action is available when the executive acts in excess

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of statutory authority. States PI Order 10-12 (citing, inter alia, Armstrong v. Exceptional Child

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Ctr., Inc., 135 S. Ct. 1378, 1384 (2015)); Sierra Club PI Order 28-30. Since Defendants do not

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argue that Plaintiff States lack Article III standing, see Opp’n 9-10, 12-13, that should be the end

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of the inquiry. See Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 811 n.14 (D.C. Cir. 1987).

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Defendants’ affirmative cross-motion for partial summary judgment is inconsistent with the
Court’s Scheduling Order (ECF No. 174). To the extent the Court considers Defendants’
premature affirmative motion, Plaintiff States respond to that motion herein.
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But even if the zone of interests test applies, Plaintiff States satisfy it. The zone of

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interests test is “generous,” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118,

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130 (2014), and “not meant to be especially demanding,” Match-E-Be-Nash-She-Wish Band of

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Pottawatomi Indians v. Patchak, 567 U.S. 209, 224-25 (2012). Agency action is “presumptively

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reviewable,” and a party’s interest need only be “arguably within” a statute’s zone of interests. Id.

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(emphasis added). Statutes must be viewed “in the overall context” of the broad “statutory

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scheme,” and Congress’s intent to exclude a category of plaintiffs from judicial review must be

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“fairly discernible” from that scheme. Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 401, 399 (1987).

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In Patchak, the Supreme Court found the zone of interests test satisfied by a plaintiff

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purporting harms to his environmental and aesthetic interests caused by federal government

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action allegedly in excess of its authority under a statute authorizing acquisition of land for

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American Indian tribes. 567 U.S. at 213, 224-28. The Court reasoned that although the statute

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governed land “acquisition,” the contemplated use of the acquired land was entwined with the

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purpose of the statute and, thus, the harm to the neighboring landowner from that use fell within

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the statute’s zone of interests. Id. at 225-26. Here, § 8005 and § 9002, which incorporates § 8005

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by reference), is even more closely entwined with the ultimate “use” of the funds at issue,

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because under § 8005 funds can only be transferred if they are used for higher priority items and

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unforeseen military requirements, and not used for an item for which Congress has denied

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funding. Thus, the harms to the Plaintiff States from the use of the funds transferred under

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§§ 8005 and 9002 bring them within the zone of interests of those statutes.

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Defendants offer little analysis of the zone of interests test. They merely assert, without

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explanation, that the test is not satisfied here because § 8005 “exists to govern the relationship

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between Congress and DoD with respect to military spending, not protect the State’s interest in

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environmental protection.” Opp’n 10. But they offer no reason why the zone of interests should

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be limited to parties that Congress intended to benefit. Indeed, one of the very cases they cite

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(Opp’n 10 n.4) expressly recognizes that “there need be no indication of congressional purpose to

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benefit the would-be plaintiff.” City of Sausalito v. O’Neill, 386 F.3d 1186, 1200 (9th Cir. 2004).

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Thus, in considering an appropriations-related statute, Scheduled Airlines Traffic Offices, Inc. v.
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Dep’t of Def., 87 F.3d 1356, 1359 (D.C. Cir. 1996), the court ruled that although the statute was

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not intended to benefit anything “other than the public fisc and Congress’s appropriations power,”

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id. at 1359-60, private plaintiffs fell within its zone of interests because their interest was

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“sufficiently congruent” with the statute and not “more likely to frustrate than to further . . .

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statutory objectives.” Id. at 1360 (quoting Clarke, 479 U.S. at 397). The same is true here.

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Sections 8005 and 9002 were intended to “tighten congressional control of the re-programming

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process,” H.R. Rep. No. 93-662, at 16-17 (1973), and Plaintiff States’ interest in avoiding harm to

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their environment (and, as shown below, sovereignty) from Defendants’ skirting of those

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limitations is congruent with that objective and likely to further it.

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Likewise, the legislative history for § 284 manifests Congress’s intent to limit the scale of

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DOD support for DHS. DOD resources were not to “primarily be used to fund” counter-drug

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activities of other agencies. H.R. Rep. No. 101-665, at 203 (1990). The interests expressed in

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these limitations are “congruent” with the Plaintiff States’ interests in ensuring that Defendants do

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not evade such limitations in a manner that harms them. Scheduled Airlines, 87 F.3d at 1359.

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There is nothing in the text and legislative history of § 284 that even hints that states would be

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precluded from protecting their sovereign interests from the environmental impact that naturally

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ensues from the “[c]onstruction of roads and fences” within their boundaries. See Kansas v.

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United States, 249 F.3d 1213, 1223 (10th Cir. 2001) (“Surely Congress did not intend to render

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the State powerless to protect its sovereign interests in this situation.”).

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Defendants’ objection that “[n]othing in the statute suggests that Congress intended to

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give states a remedy for protecting against the alleged negative externalities of barrier

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construction,” Opp’n 13, also misses the mark. As noted above, the zone of interests test does not

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require any intent to benefit a party, much less to create a right of action. See City of Sausalito,

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386 F.3d at 1200. Moreover, to the extent that Defendants are arguing that no party could bring a

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claim to challenge their unlawful diversions under these provisions, they are turning the “strong

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presumption favoring judicial review” on its head. Mach Mining, LLC v. E.E.O.C., 135 S. Ct.

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1645, 1651 (2015). This presumption may be overcome only with “clear and convincing

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evidence” to preclude judicial review. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.
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402, 410 (1971). Defendants do not—and cannot—present such evidence. Indeed, they fail to

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offer any reason why Congress would not want to allow the Plaintiff States to enforce these

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provisions’ limitations. Thus, Plaintiff States are “suitable challenger[s] to [enforce] the statute.”

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First Nat’l. Bank & Tr. Co. v. Nat’l Credit Union Admin., 988 F.2d 1272, 1275 (D.C. Cir. 1993).

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2.

Defendants Exceeded Their Authority Under § 8005

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Defendants dispute this Court’s interpretation of the terms “item,” “denied,” and

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“unforeseen” in § 8005, Opp’n 10, but fail to offer any persuasive rationale for their strained

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interpretation of these terms. First, Defendants contend that when § 8005 refers to an “item for

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which funds are requested,” it means “a particular budget item requiring additional funding

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beyond the amount in the DoD appropriations for the fiscal year.” Id. 11. Although they note that

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§ 8005 appears in a DOD appropriations statute, they do not dispute this Court’s determination

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that there is nothing in the language or legislative history of the provision suggesting such a limit.

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States PI Order 16; Sierra Club PI Order 34. Even more fundamentally, Defendants make no

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attempt to explain why Congress would have wanted to allow DOD to make transfers for items

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that it had denied to other parts of the executive branch, thereby confirming that their proffered

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interpretation is implausible as well as contradicted by the provision’s plain language.

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Second, Defendants repeat the unsupportable assertion that, in determining whether there

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was an “unforeseen” military requirement, the analysis should focus not on the underlying

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requirement for border barriers, but rather on “DOD’s support for the projects requested by DHS

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under § 284.” Opp’n 11. As this Court already has observed, this interpretation is “not

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reasonable,” States PI Order 18; Sierra Club PI Order 36. Notably absent from Defendants’ brief

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is any attempt to show why Congress would have intended to condition the use of § 8005 on the

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existence of such a request or otherwise show that its interpretation of “unforeseen” is reasonable.

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Defendants likewise ignore the evidence that as of early 2018, Defendants were considering use

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of “DOD’s support for the projects requested by DHS under § 284.” Compare Pls.’ MSJ 11 &

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RJN Ex. 8 ¶ 2, with Opp’n 11.

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Third, the mere fact that Congress has authorized DOD to use its resources under § 284 in
some instances to construct fencing, Opp’n 11-12, does not automatically make border barrier
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construction a “military requirement.” The Ninth Circuit has rejected an interpretation of the

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word “requirement” to “include permission.” See Feldman v. Wood, 335 F.2d 264, 265 (9th Cir.

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1964). “This simply is not the meaning of the word. A right to do an act is far different from a

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requirement to do it.” Id.

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Finally, Defendants’ reliance (Opp’n 12) on Lincoln v. Vigil, 508 U.S. 182 (1993), is

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misplaced. That case dealt with a lump-sum appropriation, which is a far cry from the highly

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restricted authority granted in § 8005, and Lincoln recognized that in any case, “an agency is not

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free simply to disregard statutory responsibilities.” Id. at 193. Far from suggesting that the

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exercise of such authority cannot raise constitutional questions, Lincoln noted that the

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constitutional issues raised in that case were not ripe and remanded for consideration of those

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claims. Id. at 195 (recognizing that “in the absence of a clear expression of contrary congressional

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intent, . . . judicial review will be available for colorable constitutional claims”).

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Defendants Have Exceeded Their Authority Under § 9002

First, it is undisputed that Defendants’ transfer of funds via § 9002 must satisfy the same

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criteria as § 8005, Opp’n 12, so the purported transfer under § 9002 is unlawful for the same

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reasons as the transfer under § 8005. Second, Defendants argue that because Congress and the

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president have issued designations under Title IX of the FY 2019 DOD Appropriations Act, Pub.

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L. No. 115-245, 132 Stat. 2981 (2018) (FY 2019 DOD Appropriations Act), the transfer of funds

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is legal under § 9002 itself. Opp’n 12-13. However, Defendants fail to address the key point that

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because the funds are specifically “designated by the Congress for Overseas Contingency

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Operations/Global War on Terrorism [OCO/GWOT],” their use of the funds must be consistent

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with those purposes. FY 2019 DOD Appropriations Act at 3042. Defendants do not plan to use

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the funds diverted here for OCO/GWOT purposes. The construction of a wall along our southern

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border does not occur overseas.

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Also, per the president’s designation, OCO/GWOT appropriations for FY 2019 are only

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meant to cover “costs necessary to achieve U.S. national security goals in Afghanistan, the

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broader Middle East, and other designated conflict zones and to address other emergent crises.”

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Partial MSJ RJN Ex. 9. Defendants argue that the “national emergency on the southern border” is
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within “other emergent crises” in the president’s designation. Opp’n 13. However, in the Sierra

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Club case, this Court rejected a similar argument by Defendants regarding the term “other

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activity” under 10 U.S.C. § 2801(a), ruling that Defendants’ attempt to use this catchall term to

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encompass the border barrier was inconsistent with the noscitur a sociis and ejusdem generis

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canons of construction and would render the specific list of locations meaningless. Sierra Club PI

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Order 42-46. This Court’s reasoning applies with equal force to the catchall “other emergent

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crises” term, which “appears after a list of closely related types” of overseas conflict zones. Id.

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45. Accepting Defendants’ interpretation would render the list of overseas conflict zones in the

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designation meaningless, id., and thus, “other emergent crises” should be read as covering only

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similar armed conflicts overseas.
4.

Defendants Have Exceeded Their Authority Under § 284

Defendants do not attempt to explain why Congress would have required DOD to provide

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notice for “small scale construction” projects of $750,000 or under, 10 U.S.C. § 284(h)(1)(B),

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(i)(3), but not for a massive construction project such as the one proposed here. Opp’n 14-15.

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Defendants’ response is that, for whatever reason, this is the outcome that Congress intended, and

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posit that “nothing in the statute even arguably defines any upper limit” on DOD’s support. Id.

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But this Court has already rejected Defendants’ view; Congress “does not, one might say, hide

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elephants in mouseholes.” States PI Order 21 (quoting Whitman v. Am. Trucking Ass’ns, 531 U.S.

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457, 468 (2001)); Sierra Club PI Order 39-40. Just as Congress did not authorize DOD’s

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resources to “primarily be used to fund the drug war,” see Opp’n 14 n.5 & H.R. Rep. 101-665, at

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20 (1990), Congress did not authorize DOD to “primarily” fund DHS’s border wall project.

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Defendants also provide no evidence that “Congress’s past approval of relatively small

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expenditures,” States PI Order 21; Sierra Club PI Order 39, approaches the level of the multi-

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billion-dollar project contemplated here. This Court already considered these previous DOD

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projects that Defendants again rely on in their Opposition (at 14), and found that they do not

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speak “to Defendants’ current claim that the Acting Secretary has authority to redirect sums over

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a hundred orders of magnitude greater to that account in the face of Congress’ appropriations

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judgment in the CAA.” States PI Order 21; Sierra Club PI Order 39.
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Finally, Defendants erroneously claim the Plaintiff States “do not dispute that the projects

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at issue are being constructed in ‘drug smuggling corridors’ along the U.S.-Mexico border.”

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Opp’n 14. The factual predicates for this conclusion were not put at issue until Defendants’

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current motion; Defendants should not be granted summary judgment based on these disputed

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facts. For example, while Defendants proffer a declaration stating there have been “107 drug

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events between border crossings in the El Centro Sector” in this fiscal year, ECF No. 182-9, ¶ 8,

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the declaration fails to state where any of these events occurred within the 70-mile wide El Centro

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Sector, encompassing approximately 100,000 square miles. Supplemental Request for Judicial

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Notice (Supp. RJN) Exh. 10. And public statements issued by the Border Patrol show that the

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majority of border patrol agent drug seizures occur at vehicle inspection checkpoints along U.S.

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highways that are 30 to 40 miles from the border and nowhere near the proposed El Centro

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Project 1. Cayaban Decl. ¶¶ 6-15; Supp. RJN Exhs. 11-28. In light of these statements,

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Defendants have not carried their burden of proof to show that drug corridors exist in the relevant

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locations. 2

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B.

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Defendants again rely on Dalton v. Specter, 511 U.S. 462 (1994), as a reason to ask this

Defendants’ Actions Violate the United States Constitution

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Court to not consider the serious constitutional infirmities that arise from Defendants’ statutory

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interpretation and illegal diversions. Opp’n 15-16. But Dalton does not (and could not) hold that a

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constitutional claim does not arise when the executive branch is exerting its powers based on a

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statute that is itself unconstitutional, Clinton v. City of New York, 524 U.S. 417, 445 (1998), nor

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did it upend the cardinal principle that “[s]tatutes must be interpreted to avoid serious

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constitutional problems,” States PI Order 18 (citing Zadvydas v. Davis, 533 U.S. 678, 689

23

(2001)); Sierra Club PI Order 36-37 (same). Moreover, while Dalton rejected the suggestion that

24

the Constitution is violated “whenever the President acts in excess of his statutory authority,” 524

25

U.S. at 471, it did not hold that an independent constitutional claim cannot lie when the president

26

acts without statutory authority. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587-

27

2

28

Similarly, for the El Paso Sector, which shares a 180-mile land border with Mexico and
encompasses 125,000 square miles (Supp. RJN Ex. 10), Defendants have failed to produce any
evidence to support an inference that the project areas include drug-smuggling corridors.
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88 (1952). Dalton merely held that Plaintiffs could not sustain a constitutional claim premised

2

solely on an allegation that the president “violated the terms” of a statute governing the closure of

3

military bases. 511 U.S. at 472-74. Here, while the Plaintiff States allege that Defendants

4

exceeded their authority, see supra 1-7, they also bring independent constitutional claims based

5

directly on specific limitations in the Constitution. Consequently, as this Court implicitly

6

recognized in considering the “serious constitutional questions” that arise from Defendants’

7

reading of § 8005, States PI Order 18-24; Sierra Club PI Order 36-42, nothing bars this Court

8

from addressing the constitutionality of Defendants’ actions. Thus, the Court should reject

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Defendants’ reliance on Dalton and find their actions unconstitutional.

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11

1.

Defendants Violated Separation of Powers Principles

Defendants assert there is no separation of powers violation because they acted pursuant to

12

authority granted by Congress, rather than the president’s inherent authority. Opp’n 16. That is

13

wrong. Although § 284 authorizes the use of DOD resources for fencing construction in certain

14

instances, Defendants cannot exercise this general statutory authority in a manner that is

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“incompatible with the expressed or implied will of Congress,” Youngstown, 343 U.S. at 637

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(Jackson, J., concurring), to not provide any barrier funding for FY 2019 beyond the $1.375

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billion approved by Congress in the Consolidated Appropriations Act, Pub. L. No. 116-6, § 230,

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133 Stat. 13, 28 (2019) (CAA). “It is one thing to draw an intention of Congress from general

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language . . . where Congress has not addressed itself to a specific situation. It is quite impossible,

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however, when Congress did specifically address itself to a problem . . . to find secreted in the

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interstices of legislation the very grant of power which Congress withheld”; Youngstown, 343

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U.S. at 609 (Frankfurter, J., concurring); States PI Order 16; Sierra Club PI Order 34.

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Defendants are also incorrect that Congress must include an express prohibition to prevent

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Defendants from using anything beyond the $1.375 billion. Opp’n 16. As this Court recognized,

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“it is not Congress’s burden to prohibit the Executive from spending the Nation’s funds: it is the

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Executive’s burden to show that its desired use of those funds was affirmatively approved by

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Congress.” States PI Order 22 (internal quotation omitted); Sierra Club PI Order 40. 3 Defendants

2

have offered no new arguments to satisfy that burden here.

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2.

4

Defendants Violated the Appropriations Clause

Defendants do not dispute that the Appropriations Clause generally prohibits the executive

5

branch from “evad[ing] . . . congressionally established spending limits” made in a specific

6

appropriation by using a general appropriation for the same purpose. GAO Red Book at 3-408.

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Instead, they assert that the specific/general principle does not apply here because they are using

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appropriations from one agency, DOD, to supplement an appropriation of another, DHS. Opp’n

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16-17. Defendants, however, offer no authority or justification for such a distinction. Moreover,

10

in the most analogous case, the GAO prohibited one DOD subagency from using a general

11

appropriation to dredge a river where a different subagency of DOD had funds appropriated for

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the function of dredging. Id. at 3-408 to -09 (citing to B-139510). And this Court was correct that

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the Appropriations Clause is not so feeble as to permit executive branch officials “displeased with

14

a restriction . . . imposed by Congress,” Office of Pers. Mgmt v. Richmond, 496 U.S. 414, 428

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(1990), to use DOD to “make a de facto appropriation to DHS, evading congressional control

16

entirely.” States PI Order 22; Sierra Club PI Order 40.

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While Defendants observe that typically “[a]n agency’s discretion to spend appropriated

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funds is cabined only by the text of the appropriation.” Opp’n 17 (quoting Salazar v. Ramah

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Navajo Chapter, 567 U.S. 182, 200 (2012)), the observation does not help Defendants here. The

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specific/general principle does not require this Court to look beyond the text of the relevant

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appropriations—the general drug-interdiction appropriation in the FY 2019 DOD Appropriations

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Act, 132 Stat. at 2997, and the specific appropriation for barrier funding for the Rio Grande

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Valley subject to enumerated conditions in the CAA, §§ 230-32. Based on the text of these two

24

appropriations, and the specific/general principle, it is clear that $1.375 billion was all that

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Congress intended to provide for barrier construction in FY 2019 “from whatever source.”

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Nevada v. DOE, 400 F.3d 9, 16 (D.C. Cir. 2005).

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Although an explicit prohibition was unnecessary, Congress did prevent the executive branch
from using a provision such as 10 U.S.C. § 284 to “increase . . . funding for a program, project, or
activity as proposed in the President’s budget request for a fiscal year.” CAA § 739.
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Defendants are also wrong that application of the specific/general principle here is

2

“tantamount to a repeal by implication” of § 284. Opp’n 17 n.8. Implicit spending limits set by

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Congress for a fiscal year are not the same as the “change [of] substantive law through

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appropriations measures.” United States v. Will, 449 U.S. 200, 222 (1980). Section 284 is not a

5

“substantive law” that requires the agency to take a certain action; it is an authorization that DOD

6

can act upon if there is a valid appropriation. And reading implicit spending limits set by

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Congress into appropriations bills for a given fiscal year is widely understood as necessary to

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ensure that agencies act in furtherance of a valid appropriation. See Nevada, 400 F.3d at 16; GAO

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Red Book at 3-16-17 (reading the specific/general principle as part of the “necessary expense”

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rule); id. at 3-409 (collecting a “legion” GAO cases supporting this principle).
Finally, contrary to Defendants’ contention, DOD could use its authority under § 284 even

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in years where Congress made specific appropriations to DHS for border fence construction.

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Opp’n 17 n.8. If Congress had made clear in the appropriations bill its “intent to make a general

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appropriation available to supplement or increase a more specific appropriation, or to relieve

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[DOD] of the need to elect to use a single appropriation,” GAO Red Book 3-411, DOD could also

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have invoked its § 284(b)(7) authority. Additionally, Defendants overlook that in the past,

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Congress has provided DOD with specific appropriations to provide support at the border,

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including for barrier construction. See, e.g., Pub. L. No. 110-116, 121 Stat. 1295, 1299 (2007)

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(appropriating hundreds of millions of dollars to DOD for support to DHS “including . . .

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installing fences and vehicle barriers”); Pub. L. No. 109-234, 120 Stat. 418, 480 (2006) (same);

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Pub. L. No. 101-511, 104 Stat. 1856, 1873 (1990) (appropriating $28 million for drug

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surveillance program at border). Thus, Congress knows how to provide a specific appropriation to

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DOD to support DHS’s border-barrier construction activities despite the existence of a specific

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appropriation for DHS for that very same purpose, but declined to do so for FY 2019.

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3.

Defendants Violated the Presentment Clause

Defendants’ passing rebuttal to the States’ Presentment Clause argument disregards the

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similarities between the president’s unilateral modification of Congress’ $1.375 billion

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appropriation for barrier construction in the CAA here and the president’s cancellation of select
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appropriations in Clinton v. City of New York. Opp’n 17-18. In City of New York, both houses of

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Congress passed appropriations bills, the president signed those bills into law and,

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simultaneously, rejected two provisions of those appropriations bills. 524 U.S. at 436. Here, in the

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face of a request for $5.7 billion in barrier funding, both houses of Congress passed the CAA with

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only $1.375 billion in barrier funding and only for the Rio Grande Valley, the president signed

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that bill into law and, simultaneously, added $6.7 billion to that appropriation without geographic

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limitation of where barriers may be built. Sierra Club PI Order 4-8. Like the line-item veto in City

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of New York, the president’s unilateral actions here “rely[] on [the president’s] own policy

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judgment” in “rejecti[on] [of] the policy judgment made by Congress,” based “on the same

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conditions that Congress evaluated when it passed those statutes.” 524 U.S. at 438, 443-44. This

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subversion of “the difficult judgments reached by Congress” violates the Presentment Clause.

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States PI Order 16 (internal quotation omitted); Sierra Club PI Order 34.

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C.

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Defendants do not dispute Plaintiff States have stated a claim under the APA that

Defendants Have Violated the APA

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Defendants’ actions are “contrary to constitutional right, power, privilege, or immunity” and in

16

excess of statutory authority. 5 U.S.C. § 706(2)(B)-(C); see Opp’n 10 n.4. In addition, the States

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have shown that Defendants’ actions are arbitrary and capricious, further violating the APA. 5

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U.S.C. § 706(2)(A). Even if DOD is owed some “deference” concerning its assessment of

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military preparedness, under the APA, courts still must review whether the “agency considered

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the relevant factors and articulated a rational connection between the facts found and the choices

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made.” Crickon v. Thomas, 579 F.3d 978, 982 (9th Cir. 2009). The Administrative Record shows

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that then-Director of the Army Staff, General Joseph M. Martin, set forth a number of adverse

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consequences to the Army’s core functions if funds were diverted to a border barrier. Pls.’ MSJ

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17-18; AR 51. Rather than attempting to dispute the validity of General Martin’s assessment,

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Defendants dismiss this three-star general as a “lower ranking DoD official” and ignore the fact

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that the problems that he sets forth are “pressing unfunded readiness requirements,” AR 51, not

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merely a list of “various alternative Army projects to which funds could be transferred.” Opp’n

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18 n.9. And Defendants do not explain whether or how DOD took General Martin’s assessment
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into account. The Administrative Record instead indicates that they ignored it, thereby “entirely

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fail[ing] to consider an important aspect of the problem” in violation of the APA. Motor Vehicle

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Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

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II.

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CALIFORNIA AND NEW MEXICO ARE ENTITLED TO INJUNCTIVE RELIEF
A.

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California and New Mexico Would Suffer Irreparable Harm
1.

Harms to California’s and New Mexico’s Sovereignty

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Tellingly, Defendants do not dispute that, but for Defendants’ illegal transfer of funds,

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California and New Mexico would face harm to their sovereign interests in the protection of their

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air quality, water quality, and wildlife through the enforcement of their laws and regulations.

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Compare Pls. MSJ 19-21 with Opp’n 19-20. Instead, Defendants argue this injury is not

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cognizable because this Court preliminarily upheld Defendants’ use of the IIRIRA waiver. Opp’n

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20. 4 Defendants miss the point. Defendants can only effectuate the IIRIRA waiver to the

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detriment of the States if they have the funds to do so; without the funds to proceed with

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construction, the IIRIRA waiver is meaningless. Therefore, even if this Court upholds

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Defendants’ use of the IIRIRA waiver permanently in the future (and Plaintiff States believe it

16

should not), Plaintiff States’ ability to implement their laws is still undermined, which undeniably

17

infringes their sovereign interests. Kansas, 249 F.3d at 1227.
Defendants assert that the cases cited by Plaintiff States involved “irreparable injury from

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judicial injunctions prohibiting the enforcement of state law.” Opp’n 19. But Defendants’

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construction activities, when combined with the IIRIRA waiver, have the similar effect of

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interfering with the States’ ability to “employ . . . duly enacted statute[s]” enacted by the

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representatives of the people of California and New Mexico, Maryland v. King, 567 U.S. 1301,

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1301 (2012) (Roberts, C.J., in chambers), and engage “in investigation and examination” on

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issues surrounding the States’ environment, wildlife, and natural resources, New Motor Vehicle

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Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers). For

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example, a California water quality agency will be prevented from ensuring El Centro Project 1

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4

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Plaintiff States’ NEPA claim is not at issue in this motion and will be addressed in the second
motion for summary judgment under the Court’s Scheduling Order (ECF No. 174).
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Pl. States’ Reply ISO Mot. for Partial Summ. J. and Opp’n to Defs.’ Mot. for Partial Summ. J. (4:19-cv-00872-HSG)

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complies with water quality standards, Pls.’ MSJ 6, and New Mexico will be limited in its ability

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to review and enforce a dust-control implementation plan for the construction of El Paso Project

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1, id. 8. Defendants do not explain why such injuries are not judicially cognizable.

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Moreover, Defendants ignore a crucial case cited by the Plaintiff States, Kansas v. United

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States, Pls.’ MSJ 20, which did not involve the injunction of a state law. There, the Tenth Circuit

6

determined that the federal National Indian Gaming Commissions’ decision to classify lands

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within Kansas as “Indian land” divested the state of regulatory authority over those lands, which

8

was “sufficient to establish the real likelihood of irreparable harm” to the State’s “sovereign

9

interests.” Kansas, 249 F.3d at 1227-28. Likewise, here, Defendants’ effectuation of the IIRIRA

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waiver through illegally obtained funds limits the ability of the States to enforce and implement

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state laws and regulations, and thus, irreparably injures the States’ sovereign interests.

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Defendants insist these harms should not matter because the IIRIRA waiver has been

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preliminarily deemed by this Court to be valid, federal law is supreme, and state law is

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subordinate to it. Opp’n 19-20. But state law’s displacement by federal law depends upon the

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federal government, in this case, the executive branch, acting in accordance with the Constitution.

16

See City of New York, 524 U.S. at 450 (Kennedy, J., concurring) (“The idea and the promise were

17

that when the people delegate some degree of control to a remote central authority, one branch of

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government ought not possess the power to share their destiny without a sufficient check from the

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other two.”). Thus, if this Court concludes that Defendants’ actions are unlawful, to maintain the

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proper structural balance that our Constitution demands, California and New Mexico are entitled

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to injunctive relief to prevent the irreparable harm that would befall their sovereign interests.

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2.

Harms to California’s and New Mexico’s Environment, Wildlife, and
Natural Resources

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Defendants do not dispute that California and New Mexico will suffer harm to their

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environment, wildlife, and natural resources. Instead, they challenge the magnitude of that harm.

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See, e.g., Opp’n 21 (“even if some sheep abandon habitat near the El Centro 1 Project”), 22

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(“very little new land will be disturbed”). For instance, Defendants do not dispute that El Centro

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Project 1 and El Paso Project 1 could harm wildlife, including endangered species such as the
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Pl. States’ Reply ISO Mot. for Partial Summ. J. and Opp’n to Defs.’ Mot. for Partial Summ. J. (4:19-cv-00872-HSG)

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Peninsular Bighorn Sheep and the Mexican Wolf. See id. Instead, they assert the States must

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demonstrate that “population- or species-level harms will result absent an injunction.” Opp’n 20-

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21. This Court has already rejected this requirement. States PI Order 31-32. The evidence of

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potential death, interference with breeding and genetic diversity, and harm to these various

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wildlife species (Pls.’ MSJ 19-24) is sufficient to establish irreparable harm. Nat’l Wildlife Fed’n

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v. Burlington N.R.R., 23 F.3d 1508, 1512-13 (9th Cir. 1994); see also States PI Order 31.

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Defendants also try to dispute the harms to Plaintiff States’ wildlife with speculation about

8

mitigation measures. Defendants claim Customs and Border Protection (CBP) “will likely

9

recommend” mitigation measures to DOD that “could reduce” impacts to endangered Peninsular

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Bighorn Sheep and make similar statements concerning other species. Opp’n 21-22 (emphasis

11

added). Defendants also state CBP will identify construction Best Management Practices, as well

12

as other mitigation measures which “may” be implemented post-construction, without specifying

13

which of those practices CBP will propose for these projects or how it will ensure that DOD

14

adopts them, much less whether these measures would mitigate all the harms in question. Opp’n

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Ex. 6 (Enriquez Decl. ¶¶ 33, 50, 59) (emphasis added). And these statements of anticipated

16

mitigation are themselves admissions that harm will occur. Thus, Defendants’ attempts are

17

insufficient to eliminate California and New Mexico’s “expos[ure] to some significant risk of

18

irreparable injury,” see Associated Gen. Contractors of California, Inc. v. Coal. for Econ. Equity,

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950 F.2d 1401, 1410 (9th Cir. 1991), especially given that CBP’s assertions of speculative

20

mitigation measures are non-binding.

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B.

The Balance of Hardships and Public Interest Favor Granting a
Permanent Injunction

The balance of hardships and public interest support permanently enjoining Defendants’

24

illegal diversion of funds under §§ 8005, 9002 and 284 to construct border barriers. Defendants

25

point to the federal government’s interest in drug interdiction, Opp’n 6-8, 23, but there is no

26

evidence in the record demonstrating that the planned construction in the El Paso and El Centro

27

sectors will have any impact on drug smuggling. See supra 7; see also Cayaban Decl. ¶¶ 6-15;

28

LeMaster Decls., ECF Nos. 182-8, 182-9; Supp. RJN Exhs. 10-28. Defendants also assert that
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Pl. States’ Reply ISO Mot. for Partial Summ. J. and Opp’n to Defs.’ Mot. for Partial Summ. J. (4:19-cv-00872-HSG)

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they may be deprived of the funds they seek to transfer because that funding will lapse at the end

2

of the fiscal year. Opp’n 23. Defendants, however, are free to use these funds on other projects

3

before the end of the fiscal year, and even if funding lapses, the money will remain in the United

4

States Treasury. More importantly, the government “cannot suffer harm from an injunction that

5

merely ends an unlawful practice,” Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013),

6

and even if it could, such harm would be counterbalanced by the public’s interest in ensuring that

7

Defendants comply with the law. See E. Bay Sanctuary Covenant v. Trump, 909 F.3d 1219, 1255

8

(9th Cir. 2018). Defendants’ final argument is that they would incur penalties to contractors.

9

Opp’n 24. Any such penalties, however, are of Defendants’ own making, see McFadden Decls.,

10

ECF Nos. 182-13, 182-14, and they do not outweigh the public interest in ensuring that

11

Defendants follow the law. Thus, the balance of equities and public interest decidedly support

12

granting a permanent injunction.

13

C.

14

Enjoining Any Use of §§ 8005, 9002, and 284 for Barrier Construction in
California and New Mexico Is Appropriate

15

There is no merit to Defendants’ assertion that the States’ requested injunctive relief is

16

overly broad. Opp’n 24-25. The States seek a narrow injunction to prohibit Defendants’ diversion

17

of funds under §§ 8005, 9002, and 284 to construct border-related infrastructure in California and

18

New Mexico. ECF No. 176-1. If this Court determines that Defendants acted unlawfully in

19

transferring funds via §§ 8005, 9002, and 284 for barrier construction, limiting any injunction to

20

just the El Centro Project 1 and El Paso Project 1 could leave Defendants unconstrained from

21

diverting funds to construct other border infrastructure projects within California and New

22

Mexico using those same provisions. Therefore, the relief requested is appropriate. And because

23

Defendants have not satisfied the factors in Nken v. Holder, 556 U.S. 418 (2009), they are not

24

entitled to a stay. Id. at 434.

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26

CONCLUSION
For the foregoing reasons, Plaintiff States of California and New Mexico request that the

27

Court grant their motion for partial summary judgment in full and deny Defendants’ cross-

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motion.
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Dated: June 24, 2019

Respectfully submitted,

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XAVIER BECERRA
Attorney General of California
ROBERT W. BYRNE
SALLY MAGNANI
MICHAEL L. NEWMAN
Senior Assistant Attorneys General
MICHAEL P. CAYABAN
CHRISTINE CHUANG
EDWARD H. OCHOA
Supervising Deputy Attorneys General
BRIAN J. BILFORD
NOAH M. GOLDEN-KRASNER
SPARSH S. KHANDESHI
HEATHER C. LESLIE
JANELLE M. SMITH
JAMES F. ZAHRADKA II

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/s/ Lee I. Sherman
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LEE I. SHERMAN
Deputy Attorneys General
Attorneys for Plaintiff State of California

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HECTOR BALDERAS
Attorney General of New Mexico
TANIA MAESTAS (appearance pro hac vice)
Chief Deputy Attorney General
NICHOLAS M. SYDOW
Civil Appellate Chief
JENNIE LUSK
Assistant Attorney General, Director
MATTHEW L. GARCIA
Governor’s General Counsel
Attorneys for Plaintiff State of New Mexico

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Pl. States’ Reply ISO Mot. for Partial Summ. J. and Opp’n to Defs.’ Mot. for Partial Summ. J. (4:19-cv-00872-HSG)

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ATTESTATION OF SIGNATURES

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I, Lee I. Sherman, hereby attest, pursuant to Local Civil Rule 5-1(i)(3) of the Northern
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District of California that concurrence in the filing of this document has been obtained from each
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signatory hereto.
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/s/ Lee I. Sherman

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LEE I. SHERMAN
Deputy Attorney General
Attorney for Plaintiff
State of California

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