State of California et al v. Trump et al

Filing 204

NOTICE Of Decision by the Department of Defense to Authorize Additional Border Barrier Projects Pursuant to 10 U.S.C. § 284 by Department of Defense, David Bernhardt, Mark T. Esper, Kevin K. McAleenan, Ryan D. McCarthy, Steven T. Mnuchin, 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, # 2 Exhibit)(Warden, Andrew) (Filed on 8/27/2019) Modified on 8/28/2019 (jjbS, COURT STAFF).

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JAMES M. BURNHAM
Deputy Assistant Attorney General
ALEXANDER K. HAAS
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.,

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

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No. 4:19-cv-00872-HSG
No. 4:19-cv-00892-HSG
NOTICE OF DECISION BY THE
DEPARTMENT OF DEFENSE TO
AUTHORIZE ADDITIONAL
BORDER BARRIER PROJECTS
PURSUANT TO 10 U.S.C. § 284

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SIERRA CLUB, et al.,
Plaintiffs,

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v.
DONALD J. TRUMP, et al.,
Defendants.
State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG – Notice of Additional § 284 Projects
Sierra Club et. al. v. Donald J. Trump, et al., 4:19-cv-00892-HSG – Notice of Additional § 284 Projects

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Defendants hereby notify the Court and parties in the above-captioned cases that the

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Secretary of Defense has authorized three additional border barrier projects in Arizona and

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California pursuant to 10 U.S.C. § 284.

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In the course of executing the contracts for the previously-approved Section 284 projects

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that have been the subject of litigation in this case, the U.S. Army Corps of Engineers (USACE)

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determined that that lower-than-expected contract costs may yield sufficient savings to build up

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to an additional 20 miles of border barrier. See Fourth Declaration of Kenneth Rapuano ¶ 4

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(Exhibit 1). Specifically, USACE anticipates that the final total contract price for the projects

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will be less than USACE’s rough-order-of-magnitude budget estimates. Id. USACE will not

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know the precise amount available until later in the fiscal year when USACE finalizes all

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contract pricing. Id.

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The surplus funds were previously transferred into the “Drug Interdiction and Counter-

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Drug Activities, Defense” appropriations account pursuant to Sections 8005 and 9002 of the

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Department of Defense Appropriations Act, 2019, Pub. L. No. 115-245, div. A, tit. VIII, 132

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Stat. 2981 (2018), which resulted in the prior § 284 litigation in this case that led to the Supreme

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Court’s stay of this Court’s injunction. See Trump v. Sierra Club, 2019 WL 3369425 (S. Ct. July

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26, 2019).

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As a result of this anticipated surplus of funds, on August 16, 2019, the Department of

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Homeland Security (DHS) sent the Department of Defense (DoD) an amendment to DHS’s

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February 25, 2019, request for assistance under Section 284. See Fourth Rapuano Decl. ¶ 5 &

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Exhibit A. The amendment added mileage as well as new projects to the list of DHS-requested

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border-barrier-construction projects. Id.

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On August 26, 2019, the Secretary of Defense authorized USACE to undertake three

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additional border barrier projects using excess funds obtained from contract savings on

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previously approved Section 284 projects, as those funds allow: Yuma Sector Projects 4 and 5,

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and Tucson Sector Project 4. Id. ¶ 6 & Exhibit A. Yuma Sector Project 4 and Tucson Sector

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Project 4 are located in Arizona. Id., Exhibit A. Yuma Sector Project 5 consists of three

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State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG – Notice of Additional § 284 Projects
Sierra Club et. al. v. Donald J. Trump, et al., 4:19-cv-00892-HSG – Notice of Additional § 284 Projects
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separate segments, one located in Arizona (1.6 miles) and two in California (0.4 and 0.5 miles,

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respectively). Id., Exhibit A.

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USACE anticipates that it will award contracts and fully obligate the necessary funds for

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these three projects no later than September 30, 2019, but no earlier than September 15, 2019.

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See Declaration of Jill Stiglich ¶ 4 (Exhibit 2). USACE does not expect to begin construction, or

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to engage in any ground disturbing activities, on the projects before October 1, 2019. Id.

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DATE: August 27, 2019

Respectfully submitted,
JAMES M. BURNHAM
Deputy Assistant Attorney General
ALEXANDER K. HAAS
Director, Federal Programs Branch
ANTHONY J. COPPOLINO
Deputy Director, Federal Programs Branch
/s/ Andrew I. Warden
ANDREW I. WARDEN (IN #23840-49)
Senior Trial Counsel
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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State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG – Notice of Additional § 284 Projects
Sierra Club et. al. v. Donald J. Trump, et al., 4:19-cv-00892-HSG – Notice of Additional § 284 Projects
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