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).

EXHIBIT 1

EXHIBIT A

UNCLASSIFIED//FOR OFFICIAL USE ONLY
ACTION MEMO

USD(P)

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Prepared by: Tom Hanniff, ODASD HDI&DSCA
Phone Number: 571-256-8315

FOR: SECRETARY OF DEFENSE

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FROM: Kenneth P. Rapuano,_
Assistant Secretary of Defense, H o m e l a n ~clioba
Security

AUG 2 2 2019

SUBJECT: Department of Homeland Security Request for Assistance Pursuant to 10 U.S.C. §
284
PURPOSE: To obtain your approval of a Department of Homeland Security (DHS) request to
block drug-smuggling corridors along the southern border under 10 U.S.C. § 284 by
constructing fences and roads, and installing lighting along approximately 20 miles
in the Yuma and Tucson Sectors using excess fiscal year (FY) 2019 funds already
provided to the U.S. Army Corps of Engineers (USACE).
COORDINATION: This memo was coordinated with OGC and the Department of the Army.
BLUF: With your approval, USA CE may build up to 20 additional miles of fencing in the
Yuma and Tucson Sectors using excess FY19 funds already provided to USACE for
construction under Section 284.
DISCUSSION:

•

On August 16, 2019, OHS submitted a request for assistance (RFA) {TAB C) for 11.6
additional miles of border barrier construction under Yuma Sector Projects #3 (8 miles), #4
(1.1 miles), and #5 (2.5 miles). This modifies the Secretary of Homeland Security's
February 25, 2019, RF A that requested DoD assistance in blocking up to 11 specific drugsmuggling corridors along the southern border of the United States.
o

The additional 8 miles of construction under Yuma Sector Project 3 are not
recommended for your approval given their geographic location (i.e., the additional
mileage is interspersed within the 31 miles of border barrier being considered for
construction under 10 U.S.C. § 2808).

•

10 U.S.C. § 284 gives you the authority to construct roads and fences, and to install lighting
to block drug-smuggling corridors across international boundaries of the United States in
support of counter-narcotic activities of Federal law enforcement agencies.

•

Then-Acting Secretary of Defense Shanahan approved construction under Section 284 on
March 25, 2019, and May 9, 2019.
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•

The requirements of Section 284 are met: OHS/Customs and Border Protection (CBP) is a
Federal law enforcement agency; DHS has identified each project area as a drug-smuggling
corridor; and the work requested by DHS falls within the scope of subsection 284(b )(7) in
that it involves construction of fences (including a linear ground detection system),
construction of roads, and installation of lighting (support by grid power and including
imbedded cameras).
o

Any support provided under Section 284, including under subsection (b )(7), is subject
to 10 U.S.C. § 276, which provides that support may not be provided if the provision
of such support would adversely affect the military preparedness of the United States.

•

USACE has realized contract savings for existing Section 284 projects such that sufficient
funds may be available for construction of up to 20 additional miles of border barrier.

•

In addition to the 3.6 additional miles from the Yuma #4 and #5 projects in the DHS request,
USA CE has identified 16.4 miles of projects in the Tucson Sector (Tucson #4, 14.4 miles;
and Tucson #5, 2 miles) that were previously requested by OHS on February 25, 2019, and
could be completed using the generated savings (TAB D).
o

The mileage in Tucson Sector Projects #4 and #5 was not previously approved
because of other, higher priority projects and availability of funds based upon initial
cost estimates.

•

USA CE has indicated that it will be able to fully obligate these funds before the end of FY
2019, after which point the funds will expire.

•

Undertaking these projects would add 20 miles of border barrier that USACE has indicated it
will be able to complete before the end of calendar year 2020.

RECOMMENDATION #1: Determine that approving additional border barrier support in
Yuma Sector Projects #4 and #5 and Tucson Sector Projects #4 and #5 do not adversely affect
the military preparedness of the United States because the funds have already been provided to
USACE ~barrier construction under Section 284.
Approve·

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Disapprove: _ _

Other:

RECOMMENDATION #2: Approve the construction ofup to 20 miles of border barrier in
Yuma Sector Projects #4 and #5 and Tucson Sector Projects #4 and #5 as funds allow.
Approve:~

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Disapprove: _ _

Other:

RECOMMENDATION #3: Sign the memorandum (TAB A) to the Secretary of the Army
authorizing the Commander, U.S. Army Corps of Engineers, to undertake up to 20 miles of
border barrier construction in Yuma Sector Projects #4 and #5 and Tucson Sector Projects #4
and #5.

UNCLASSIFIED//FOR OFFICIAL USE ONLY
2

UNCLASSIFIED//FOR OFFICIAL USE ONLY

RECOMMENDATION #4: Direct the Executive Secretary to sign the memorandum (TABB)
to the OHS Executive Secretary informing them of your decision.
COORDINATION: TAB E
Attachments:
As stated

UNCLASSIFIED//FOR OFFICIAL USE ONLY
3

TAB A

SECRETARY OF DEFENSE
1000 DEFENSE PENTAGON
WASHINGTON , DC 20301-1000

MEMORANDUM FOR SECRETARY OF THE ARMY
COMMANDER, U.S. ARMY CORPS OF ENGINEERS
SUBJECT: Construction of Roads and Fences and Installation of Lighting along the U.S.
Southern Border in Support of the Department of Homeland Security
On February 25 , 2019, the Secretary of Homeland Security requested that DoD provide
support to the efforts of the Department of Homeland Security (DHS) to secure the southern
border by blocking up to 11 drug-smuggling corridors along the border through the construction
of fences and roads and the installation of lighting.
On August 16, 2019, the Secretary of Homeland Security amended this February 25,
2019 letter by requesting additional DoD assistance by undertaking Yuma Sector Projects #3, 4,
5.
I have determined that the requirements ohitle 10, U.S. Code, section 284, have been
satisfied, and I have decided to authorize the U.S. Army Corps of Engineers to use excess funds
already provided for the construction of border barrier projects under section 284 for
constructing up to 20 miles of 30-foot pedestrian fencing, constructing and improving roads, and
installing lighting within Yuma Sector Projects #4 and 5 and Tucson Sector Project #4.
The U.S. Army Corps of Engineers will be the construction agent for this support and
will take all necessary action to undertake construction this fiscal year. In light of the continuing
nature of the crisis at the southern border, as described by the President, the Acting Secretary of
Homeland Security, and other DHS officials, you should undertake construction as quickly as
possible, consistent with applicable law.
As the proponent of the requested action, Customs and Border Protection will serve as
the lead agency for environmental compliance and will be responsible for providing all necessary
access to land. DHS will accept custody of the completed infrastructure, account for that
infrastructure in its real property records, and operate and maintain the completed infrastructure.
My point of contact is Kenneth Rapuano, Assistant Secretary of Defense for Homeland
Defense and Global Security.

cc:

Chairman of the Joint Chiefs of Staff
Under Secretary of Defense for Policy
Under Secretary of Defense (Comptroller)/Chief Financial Officer
General Counsel of the Department of Defense
Assistant Secretary of Defense for Legislative Affairs
Assistance Secretary of Defense for Homeland Defense and Global Security
Assistance to the Secretary of Defense for Public Affairs.

TAB B

OFFICE OF THE SECRETARY OF DEFENSE
1 000 DEFENSE PENTAGON
WASHINGTON , D.C. 20301-1000

MEMORANDUM FOR EXECUTIVE SECRETARY, DEPARTMENT OF HOMELAND
SECURITY
SUBJECT: Additional Support to the Department of Homeland Security
Thank you for your August 16, 2019 memorandum modifying your February 25, 2019
request that the Department of Defense (DoD) provide the Department of Homeland Security
(DHS) assistance pursuant to section 284 of title 10, United States Code. The Department of
Defense (DoD) appreciates that DHS confronts a continuing and worsening crisis at the southern
border. As indicated in previous memoranda regarding DoD support to DHS under 10 U.S .C. §
284, DoD has continued to assess the availability of resources and other factors in order to
determine how additional similar support can be provided to DHS.
10 U.S.C. § 284(b)(7) gives DoD the authority to construct roads and fences, and to
install lighting to block drug-smuggling corridors across international boundaries of the United
States in support of counter-narcotic activities of Federal law enforcement agencies. For the
following reasons, the Secretary of Defense has concluded that the modified support requested
on August 16, 2019 satisfies the statutory requirements:
•
•
•

The DHS/Customs and Border Protection (CBP) is a Federal law enforcement ·
agency:
DHS has identified each project area as a drug-smuggling corridor; and,
The work requested by DHS to block these identified drug smuggling corridors
involves construction of fences (including a linear ground detection system),
construction of roads, and installation of lighting (supported by grid power and
including imbedded cameras).

At this time, DoD will undertake up to an additional 20 miles of 30-foot pedestrian
fencing, will construct and improve roads, and will install lighting, as described in the August
16, 2019 and February 25, 2019, requests. Specifically, DoD agrees to undertake Yuma Sector
projects 4 and 5 and Tucson Sector project 4, subject to the availability of funds.
As the proponent of the requested action, CBP will serve as the lead agency for
environmental compliance, and will be responsible for providing all necessary access to land.
DoD requests that DHS place the highest priority on completing these actions for the projects
identified above. DHS will accept custody of the completed infrastructure, account for that
infrastructure in its real property records, and operate and maintain the completed infrastructure.
The Commander, U. S. Army Corps of Engineers, is authorized to coordinate directly
with DHS/CBP and immediately begin planning and executing using funds already provided to
the U. S. Army Corps of Engineers to undertake the approved Section 284 projects.

Di&

CAPT, USN
Executive Secretary

TAB C

TAB D