State of California et al v. Trump et al
Filing
220
MOTION for Partial Summary Judgment Re Section 2808 and NEPA filed by Commonwealth of Virginia, State of California, State of Colorado, State of Hawaii, State of Maryland, State of New Mexico, State of New York, State of Oregon, State of Wisconsin. Motion Hearing set for 11/20/2019 10:00 AM in Oakland, Courtroom 2, 4th Floor before Judge Haywood S Gilliam Jr.. Responses due by 10/25/2019. Replies due by 11/1/2019. (Attachments: # 1 Appendix of Declarations re: Environmental Harms, # 2 Declaration of Colonel William Green, # 3 Declaration of Alison Lynn Reaser, # 4 Declaration of Heather Leslie, # 5 Request for Judicial Notice ISO Mot for Partial Summary Judgment Re Section 2808 and NEPA, # 6 Proposed Order Granting Motion for Partial Summary Judgment, # 7 Certificate/Proof of Service)(Leslie, Heather) (Filed on 10/11/2019)
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XAVIER BECERRA
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Attorney General of California
ROBERT W. BYRNE
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MICHAEL L. NEWMAN
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MICHAEL P. CAYABAN
CHRISTINE CHUANG
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EDWARD H. OCHOA
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BRIAN J. BILFORD
SPARSHS. KHANDESHI
LEE I. SHERMAN
JANELLE M. SMITH
JAMES F. ZAHRADKA II
HEATHER C. LESI1E
SALLY MAGNANI
Senior Assistant Attorneys General
Supervising Deputy Attorneys General
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Deputy Attorney General
State Bar No. 305095
1300 I Street, Suite 125
P.O. Box 944255
Sacramento, CA 94244-2550
Telephone: (916) 210-7832
Fax: (916) 327-2319
E-mail: Heather.Leslie@doj.ca.gov
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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PLAINTIFF STATES OF CALIFORNIA,
COLORADO, HAWAll, MARYLAND,
NEW MEXICO, NEW YORK, OREGON,
v.
VIRGINIA, AND WISCONSIN'S
NOTICE OF MOTION AND MOTION
DONALD J. TRUMP, in his official capacity FOR PARTIAL SUMMARY JUDGMENT
AND
as President of the United States of America REGARDING SECTION 2808POINTS
NEPA; MEMORANDUM OF
et al.;
AND AUTHORITIES IN SUPPORT
THEREOF
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Case No. 4:19-cv-00872-HSG
Plaintiffs,
Defendants.
Date:
Time:
Judge:
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---------------------'
November 20, 2019
10:00 am
Honorable Haywood S. Gilliam,
Jr.
Trial Date:
None Set
Action Filed: February 18, 2019
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Pls.' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
1
TABLE OF CONTENTS
2
Page
3
Notice of Motion and Motion for Partial Summary Judgment ....................................................... 1
4
Memorandum of Points and Authorities ......................................................................................... 1
Introduction ..................................................................................................................................... 1
5
Background ..................................................................................................................................... 3
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8
9
10
I.
The President and Congress's Dispute over Border Barrier Funding ..................... 3
II.
Procedural History .................................................................................................. 4
Ill.
6
Defendants' Border Barrier Projects Under§ 2808 ........ :.............................. :........ 6
:Legal Argument ........... ;.................................................................................................................. 7
I.
II.
:Legal Standard ··········································:····························································· 7
The States Are Entitled to Summary Judgment in Their Favor .............................. 8
A.
11
Defendants Exceeded Their Statutory Authority under § 2808 and
Thus, Their Actions are Ultra Vires (Count 3) ........................................... 8
1.
The President's Emergency Powers Do Not Negate§ 2808's
Requirements ................................................................................... 8
13
2.
Defendants' Border Barrier Projects Are Not "Military
Construction Projects" as Required by § 2808 ............................... 9
14
3.
Defendants' Border Barrier Projects Are Not Necessary to
Support the Use of the Armed Forces as Required by§ 2808 ...... 12
12
15
B.
Defendants Violated the APA (Count 4) .................................................. 13
C.
16
Defendants Violated the Constitution (Counts 1, 2; and 3) ...................... 15
17
1.
Defendants' Actions Violate the Separation of Powers
Doctrine ......................................................................................... 15
18
2.
3.
Defendants Have Violated the Appropriations Clause ................. 16
19
D.
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Defendants Have Violated the Presentment Clause ...................... 18
Defendants Violated NEPA (Claim 6) ...................................... 1••••••••••••••• 19
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This Court Should Enjoin Defendants' Use of§ 2808 to Defund Military
Construction Projects in the States and Construct Border Barriers in
California and New Mexico ................................................................................... 21
22
A.
III.
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Defendants' Actions Irreparably Harm the States .................................... 21
1.
Construction and Operation of Defendants' Border Barriers
Harm California's and New Mexico's Sovereign Interests in
Enforcing Their State I..aws .......................................................... 22
a.
Defendants' Actions Prevent California from
Enforcing Its I..aws ............................................................ 22
(1)
Water Quality I..aws .................................... :......... 22
(2)
Air Quality I..aws ................................................... 23
(3)
. Endangered Species I..aws ..................................... 24
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Pls.' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
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TABLE OF CONTENTS
(continued)
2
Page
b.
3
4
Defendants' Actions Prevent New Mexico from
Enforcing its Laws ............................................................ 24
(1)
(2) ·
5
6
C.
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2.
8
9
Air Quality Laws ................................................... 24
Wildlife Corridors and Endangered Species
Laws ...................................................................... 25
Defendants Irreparably Harm California's and New
Mexico's Sovereign Interests by Preventing Them
from Enforcing State Laws ............................................... 26
Construction and Operation of Defendants' Border Barriers
Harm California's and New Mexico's Environment,
Wildlife, and Natural Resources ................................................... 26
a.
11
3.
12
13
B.
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Harms from the California Projects .................................. 27
b.
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Harms from the New Mexico Projects .............................. 29
Diversion of Funds from Military Construction Projects in
Colorado, Hawaii, Maryland, New Mexico, New York,
Oregon, Virginia, and Wisconsin Causes those States
Financial Harm .............................................................................. 30
The Balance of Hardships and Public Interest Favor Granting a
Permanent Injunction ................................................................................ 32
1.
16
Defendants' Alleged Harms Are Unsubstantiated and Do
Not Outweigh the Harms to the States and the Public
Interest ........................................................................................... 33
a.
Defendants Suffer No Cognizable Harm by This
Court's Halting of an Unlawful Practice ........................... 33
b.
Defendants' Alleged Harms Are Speculative and
Unsupported ...................................................................... 33
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2.
The Public Interest and the States' Harms Justify an
Injunction ...................................................................................... 34
Conclusion .................................................................................................................................... 35
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Pls.' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
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TABLE OF AUTHORITIES
2
3
CASES
4
·5
Alabama v. U.S. Army Corps of Engineers
424 F.3d 1117 (11th Cir. 2005) ........................................................ :........................................ 31
,
6
7
8
Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez
458 U.S. 592 (1982) .................................................................................................................. 26
Amoco Prod. Co. v. Vill. of Gambell
480 U.S. 531 (1987) .................................................................................................................. 35
9
10
11
12
13
Anacostia Watershed Soc. v. Babbit
871 F.Supp. 475 (D.C. Cir. 1994) ....................................................................................... 20, 21
Brackeen v. Bernhardt
937 F.3d 406 (5th Cir. 2019) ..................................................................................................... 22
California v. Azar
911 F.3d 558 (9th Cir. 2018) ...................................................·.................................................. 32
14
15
16
17
18
California v. Health & Human Servs.
351 F.Supp.3d 1267 (N.D. Cal. 2019) ....................................................................................... 32
Chemehuevi Indian Tribe v. Newsom
919 F.3d 1148 (9th Cir 2019) ..................................................................................................... 10
City & Cty. of San Francisco v. Trump
897 F.3d 1225 (9th Cir. 2018) ................................................................................................... 15
19
20
21
22
23
24
25
26
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City ofArlington v. FCC
569 U.S .. 290 (2013) .................................................................................................................... 8
City of Oakland v. Lynch
798 F.3d 1159 (9th ·cir. 2015) ......................... ;......................................................................... 31
City ofSausalito v. O'Neill
386 F.3d 1186 (9th Cir. 2004) ................................................................................................... 31
Clinton v. City ofNew York
524 U.S. 417 (1998) ............................................................................................................ 18, 19
Dep 't of the Navy v. Fed. Labor Rel. Auth.
665 F.3d 1339 (D.C. Cir. 2012) ................................................................................................ 17
28
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Pls.' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
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2
3
4
5
6
7
8
TABLE OF AUTHORITIES
(continued)
Duncan v. Walker
533 U.S. 167 (2001) ............................................................................................................. :..... 12
E. Bay Sanctuary Covenant v. Trump
932 F.3d 742 (9th Cir. 2018) ...................... ~ ..............................................................................34
eBay Inc. v. MercExchange, LLC
547 U.S. 388 (2006) ........................................................................................... .'........................ 7
FDA v. Brown & Williamson Tobacco Corp.
529 U.S. 120 (2000) .................................................................................................................. 17
9
10
11
12
13
Golden Gate Rest. Ass 'n v. City & Cty. ofSan Francisco
512 F.3d 1112 (9th Cir. ·2008) ....................................................................................................33
Gonzales v. Oregon
546 U.S. 243 (2006) .................................................................................................................. 18
Greater Yellowstone Coal., Inc. v. Servheen
665 F.3d 1015 (9th Cir. 2011) .................................................................................................... 14
14
15
16
17
18
Hernandezv. Sessions
872 F.3d 976 (9th Cir. 2017) ..................................................................................................... 33
Kansas v. United States
249 F.3d 1213 (10th Cir. 2001) ................................................................................................. 22
Maine v. Taylor
477 U.S. 131 (1986); .................................................................................................................. 26
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20
21
22
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Maryland v. King
567 ·U.S. 1301 (2012) ................................................................................................................ 26
Motor Vehicles Mrfs. Ass'n of US. v. State Farm Mut. Auto. Ins. Co.
463 U.S. 29 (1983) ............................................................................................................... 14, 15
Nat'l Wildlife Fed'n v. Burlington N R.R. ,
23 F.3d 1508 (9th Cir. 1994) ..................................................................................................... 27
24
25
26
27
Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv.
886 F.3d 803 (9th Cir. 2018) ...................................................................................................... 27
Nevada v. DOE
·400 F.3d 9 (D.C. Cir. 2005) ...................................................................................................... 17
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Pls.' Notice of Mot. and Mot. for Partial Su.mm. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
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3
4
5
6
7
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TABLE OF AUTHORITIES
(continued)
New Motor Vehicle Bd. of California v. Orrin W. Fox Co.
434 U.S. 1345 (1977) ........................................................................................................... 26, 34
New York v. United States
505 U.S. 144 (1992) ............................................................................................................ 32, 35
Nken v. Holder
556 U.S. 418 (2009) .................................................................................................................... 7
Oakland Tribune, Inc. v. Chronicle Pub[ 'g Co.
762 F.2d 1374 (9th Cir. 1985) .............................................. :.................................................... 33
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10
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12
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Off. of Pers. Mgmt. v. Richmond
496 U.S. 414 (1990) .................................................................................................................. 17
Rodriguez v. Robbins
715 F.3d 1127 (9th Cir. 2013) ...................................................................................................33
Salinger v. Co/ting
607 F.3d 68 (2d Cir. 2010) ........................................................................................................ 33
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15
16
17
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State ofAlaska v. U.S. Dept.. of Transp.
868 F.2d 441 (D.C. Cir. 1989) .................................................................................................. 26
State ofAriz. v. Thomas
824 F.2d 745 (9th Cir. 1987) ..................................................................................................... 13
Texas v. United States
809 F.3d 134 (5th Cir. 2015) ..................................................................................................... 31
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20
21
22
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United States v. MacCollom
426 U.S. 317 (1976) .................................................................................................................. 18
United States v. Spawr Optical Research, Inc.
685 F.2d 1076 (9th Cir. 1982) ..................................................................................................... 8
Village ofArlington Heights v. Metropolitan Housing Develop. Corp.
429 U.S. 252 (1977) ..................................................................................................................30
24
25
26
27
Wyoming v. Oklahoma
502 U.S. 437 (1992) .................................................................................................................. 31
Yates v. United States
135 S.Ct. 1074 (2015) ............................................................................................................... 11
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Pls.' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
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TABLE OF AUTHORITIES
(continued)
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3
4
5
6
7
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9
10
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12
13
14
15
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Youngstown Sheet & Tube Co. v. Sawyer
343 U.S. 579 (1952) .................................................................................................................. 15
FEDERAL STATUTES
5 United States Code
§ 706(2)(C) ................................................................................................................................ 13
8 United States Code
§ 1103 ........................................................................................................................................ 20
§ 1103(a)(5) ............................................................................................................................... 12
10 United States Code
§ 284 .................................................................................................................................. passim
§ 2801(a) .................................................................................................................................. 8, 9
§ 280l(c)(4) ..................................................................................................................... 9·, 10, 11
§ 2808 ................................................................ ~·······························································Passim
§ 2808(a) ................................................................................................................................ 8, 12
§ 8005 .........................................................................................
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•••••••••••••••••••••••••••••••••••••••••••••••
16 United St~tes Code
§ 1536(a)(2) ............................................................................................................................... 24
28 United States Code
§ 2201(a) ..................................., ................................................................................................. 7
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18
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21
22
23
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25
26
31 United States Code
§ 1301(a) ................................................................................................................................... 17
33 United States Code
§ 1341(a)(l) ............................................................................................................... :......... 22, 23
42 United States Code
§ 4332(2)(C) ........................................ , .........................·......................... ~ .................................. 20
§ 4332(C) .................................................................................................................................. 19
§ 7 418(a) ................................................................................................................................... 23
§ 7506(C)(1 ) ................................................................................................................................ 23
§ 7506(c)(1 )(B)(i)-(iii) .............................................................................................................. 23
50 United States Code
§ 1621 .......................................................................................................................................... 9
§ 1622(a) ..................................................................................................................................... 4
§ 1622(a)(l) ............................................................................................................................... 19
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Pub. L. No. 115-245, 132 §§ 8005 and 9002 Stat. 2981 (2018) ......................................... 2, 4, 5, 15
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Pls.' Notice of Mot. and Mot. for Partial Swnm. J. re Section 2808 _and NEPA (4:19-cv-00872-HSG)
1
TABLE OF AUTHORITIES
(continued)
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Page
3
Pub. L. No. 116-6, 133 Stat. 13 (2019) ........................................................................... 3, 15, 16, 18
4
FEDERAL REGULATIONS
5
8
40 Code of Federal Regulations
§ 51.930(b) ................................................................................................................................ 24
§ 52.220(c)(345)(i)(E)(2) .......................................................................................................... 23
§ 93.150(a) ................................................................................................................................. 23
· § 1500.l(a) ................................................................................................................................ 19
§ 1500.l(b) ................................................................................................................................ 19
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75 Federal Register 39,366 (July 8, 2010) ...................................................................................... 24
10
84 Federal Register 17,185, 17,187 (Apr. 24, 2019) ....................................................................... 20
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7
11
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84 Federal Register. 21,800-01 (May 15, 2019) ............................................................................. 20
84 Federal Register 4949 (Feb. 15, 2019) ........................................................................................ .4
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STATE STATUTES
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24
25
26
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California Fish and Game Code
§§ 2050-2089.26 ....................................................................................................................... 22
§ 2052 ........................................................................................................................................ 24
California Government Code
§ 12600 ...................................................................................................................................... 34
California Water Code
§ 13000 ...................................................................................................................................... 23
§§ 13000-16104 ........................................................................................................................ 22
§ 13050(c) ................................................................................................................................. 22
§ 13260 ...................................................................................................................................... 22
2019 New Mexico Laws
Chapter 97 ................................................................................................................................. 25
Chapter 97 § 2.B ....................................................................................................................... 25
New Mexico Statute Annotated
§ 17-2-41 ................................................................................................................................... 25
New Mexico Admininistration Code
§ 20.2.23.6 ................................................................................................................................. 25
§§ 20.2.23.108-113 .................................................................................................................... 25
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Pls.' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HS_G)
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TABLE OF AUTHORITIES
(continued)
2
3
CONSTITUTIONAL PROVISIONS
4
United States Constitution
article I,§ 7, cl. 2 ....................................................................................................................... 18
5
6
Constitution New Mexico
art. XX, § 21 ...................... ·
...........................................•...................................................... 24, 34
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COURT RULES
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Federal Rule of Civil Procedure
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Rule 56 ·················r······················································································································l
Rule 56(a) .................................................................................................................................... 7
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OTHER AUTHORITIES
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House Joint Resolution 46, 116th Cong. (2019) .............................................................................. .4
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Senate Joint Resolution 54, 116th ..................................................................................................... 4
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Senate Report No. 94-1168 (1976) ................................................................................................... 9
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Pls.' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
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NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY .JUDGMENT
2
PLEASE TAKE NOTICE that on November 20, 2019 at 10:00 a.m. in the United States
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District Court for the Northern District of California, 1301 Clay Street, Oakland, CA 94612, the
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Plaintiff States of California, Colorado, Hawaii, Maryland, New Mexico, New York, Oregon, and
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Wisconsin, and the Commonwealth of Virginia (the States) will and hereby do move under
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Federal Rule of Civil Procedure 56 for partial summary judgment. The States respectfully request
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that this Court enter judgment in their favor as to their claims because the undisputed evidence
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establishes that diversions of federal funds from military construction projects located within the
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States and construction of seven border barrier projects in California.and New Mexico under 10
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U.S.C. § 2808 (§ 2808): (1) are ultra vires; (2) violate the Administrative Procedure Act (APA);
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and (3) violate the United States Constitution's separation of powers doctrine and the
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Appropriations and Presentment Clauses. The States also request that this Court enter judgment
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on the grounds that the Defendants have violated the National Environmental Policy Act (NEPA)
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with respect to their construction of border barrier projects under both 10 U.S.C. §§ 284 and
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2808. The States are entitled to declaratory and injunctive relief prohibiting Defendants from
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utilizing § 2808 to defund military construction projects located within the States and to construct
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border barrier projects in California and New Mexico. This motion is based on this Notice of
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Motion and Motion; the Memorandum of Points and Authorities; the accompanying declarations
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and Request for Judicial Notice; all briefs and evidence submitted in support of the earlier
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motions; this Court's prior rulings; other papers, evidence, and records on file; and any other
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evidence or arguments as may be presented.
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MEMORANDUM OF POINTS AND AUTHORITIES
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INTRODUCTION
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Congress clearly denied the President's request for billions of dollars for a border wall.
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After Congress refused the President's requested appropriation, the President unilaterally
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redirected $6.7 billion, including the $3.6 billion at issue in this motion, claiming that there was a
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"national emergency" that required border wall construction. Then, nearly seven months later,
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Defendants acted upon that emergency declaration by diverting $3.6 billion that was appropriated
1
Pls.' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
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I
!
1
by Congress for "military construction projects"-a number of which the Department of Defense
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(DoD) described as critically needed for public health and safety-toward border barrier
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construction. These include over $500 million worth of projects in the States. 1
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This Court has already found, with preliminary agreement of a· Ninth Circuit panel, that
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Defendants could not divert funds through sections 8005 and 9002 of the DoD Appropriations
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Act, 2019, Pub. L. No. 115-245, 132 Stat. 2981 (2018) (FY 2019 DoD Appropriations Act).
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Defendants' proposed actions under§ 2808 are just as unlawful, as they are unsupported by the
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statutes Defendants invoke. They also violate the APA, the U.S. Constitution, and, with respect to
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the proposed actions under both §§ 284 and 2808, NEPA. As the undisputed facts establish, the
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States are entitled to partial summary judgment.
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The States are entitled to injunctive and declaratory relief. Absent injunctive relief,
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Defendants' actions will irreparably harm the States in many ways. First, Defendants' actions in
13" constructing and operating border barriers in California and New Mexico, in disregard of state
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environmental law and regulations and in contravention of Defendants' obligations under federal
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law will irreparably harm those states' sovereign interests in enforcing such laws. In addition,
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construction and operation of the border barriers will irreparably harm these states' natural
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resources and wildlife. Second, Defendants' diversion of funds from military construction
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projects within the states' will cause Colorado, Hawaii, Maryland, New Mexico, New York,
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Oregon, Virginia, and Wisconsin to lose thousands of jobs and millions of dollars in tax revenues.
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The elimination of particular projects will also harm the public interest by, among other things,
21
exposing military personnel and the residents of these states to increased risks to their health and
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safety. Finally, in part because Defendants have no legitimate interest in engaging in illegal
23,
conduct, the balance of equities and public interest favor enjoining Defendants' unlawful conduct.
Thus, this Court should: (a) grant the States' motion for partial summary judgment
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regarding § 2808 and NEPA; (b) enjoin Defendants from defunding military construction projects
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1 The
27
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States only move with respect to 17 projects, totaling $493 million. The States have
excluded Virginia's Pentagon Metro Entrance Facility project and Oregon's Klamath Falls Fuel
Facility Replacement project from their analysis because information obtained indicated that
these projects were unlikely to be constructed as intended even before Defendants' actions to
divert funds. Declaration of Alison Lynn Reaser (Reaser Deel.) ,r 9.
2
Pls.' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
1
located within the States and constructing border barriers in California and New Mexico under §
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2808; and (c) enjoin Defendants from all. border barrier projects, including projects constructed
3
under § 284, until they have complied with NEPA.
BACKGROUND
4
5
I.
6
THE PRESIDENf AND CONGRESS'S DISPUTE OVER BORDER BARRIER FuNDING
As this Court observed, "[t]he President has long voiced support for a physical barrier
7
between the United States and Mexico." Order re: Pls.' Mot. for Prelim. lnj. 3, Sierra Club v.
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Trump (Sierra Club), No. 19-cv-892 (May 24, 2019), ECF 144 (Sierra Club PI Order); see also
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Reg. for Judicial Notice in Supp. of Pls.' Mot. for Prelim. Inj ., Exs. 3-13, California v. Trump
10
(California), No. 19-cv-872 (Apr. 8, 2019), ECF 59-4 (PI RJN). 2 Congress has considered
11
numerous bills that would have authorized or appropriated billions of dollars toward the
12
President's proposed border wall, all of which failed. Sierra Club PI Order 3; PI RJN Exs. 14-20.
13
Starting at the end of 2018, President Trump and Congress engaged in a protracted and public
14
dispute over funding for a border wall which resulted in a record 35-day partial government
15
shutdown. Sierra Club PI Order 3-5; PI RJN Exs. 21-26.
16
During the shutdown, on January 6, 2019, the Office of Management and Budget requested
17
$5. 7 billion from Congress to fund "approximately 234 miles of new physical barrier." PI RJN
18
Ex. 25. Congress did not grant this funding request. Instead, after weeks of negotiation, on
19
February 14, 2019, Congress passed the Consolidated Appropriations Act, 2019, Pub. L. No. 116-
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6, 133 Stat. 13 (2019) (CAA). The CAA appropriates only $1.375 billion to the Department of
21
Homeland Security (DHS) to construct primary pedestrian border fencing in the Rio Grande
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Valley Sector on Texas's southern border subject to enumerated conditions and limitations. Id. §§
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230-232. The CAA limits where the barrier may be built (only in certain portions of Texas), how
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the barrier may be designed, and whom OHS must consult with prior to construction. Id. §§ 230-
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32. This is the only funding in the CAA that Congress designated for barrier construction. Id.
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2
27
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To avoid duplication, the States refer to prior requests for judicial notice. This Court took
judicial notice of all exhibits the States and Sierra Club plaintiffs submitted in support of their
preliminary injunction motions. Order Den. Pls.' Mot. For Prelim. Inj. 7, n.6, California, No. 19cv-872 (N.D. Cal. May 24, 2019), ECF 165 (States PI Order); Sierra Club PI Order 4 n.3.
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Pls.' Notice ofMot. and Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
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On February 15, 2019, the same day that President Trump signed the CAA into law, he
2
declared a national emergency pursuant to the National Emergencies Act (NEA) that he
3
contended necessitates the construction of a wall across the United States-Mexico border. 84 Fed.
4
Reg. 4949 (Feb. 15, 2019) (the Emergency Declaration). In addition to issuing the Emergency
5
Declaration, the President announced the redirection of $6.7 billion of federal funds to construct a
6
border wall from three other sources, over and above the $1.375 billion that Congress had
7
appropriated for limited border fencing. Sierra Club PI Order 6-8; PI RJN Ex. 28. One of those
8
sources was the $3.6 billion in reallocated DoD military construction projects that were diverted
9
under the Emergency Declaration and § 2808 at issue in this motion. PI RJN Ex. 28.
10
Under the NEA, a national emergency is terminated if either: (a) a joint resolution
11
terminating the emergency is "enacted into law;" or (b) the President issues a proclamation
12
terminating the emergency.SO U.S.C. § 1622(a). In March 2019, both houses of Congress had
13
passed a joint resolution to terminate the national emergency. H.R.J. Res. 46, 116th Cong. (2019).
14
President Trump vetoed that resolution, and the House did not reach the necessary two-thirds
15
majority to override the veto. Sierra Club PI Order 8. Six months later, in September 2019, both
16
houses of Congress passed a nearly identical resolution to terminate the national emergency. S.J.
17
Res. 54, 116th Cong. (2019). The President has not yet acted on this resolution.
18
II.
19
PROCEDURAL HISTORY
The States and the Sierra Club plaintiffs filed suit challenging these diversions of federal
20
funds. Sierra Club PI Order 1. This Court first preliminarily enjoined Defendants' use of
21
transferred funds via § 8005 of the FY 2019 DoD Appropriations Act, towards construction of
22
border barriers. Id. 55. This Court found that the States andthe Sierra Club plaintiffs.had
23
demonstrated: (a) Defendants acted ultra vires, States PI Order 14-18; Sierra Club PI Order 32-
24
36; and (b) their interpretation of the provisions in question "raise[d] serious constitutional
25
questions" and "would likely violate the Constitution's separation of powers principles." States PI
26
Order 20-21; Sierra Club PI Order 36-37. This Court affirmed that ruling in granting California's
27
and New Mexico's and the Sierra Club plaintiffs' motions for partial summary judgment and
28
4
Pls.' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA ( 4:19-cv-00872-HSG)
1
granting the Sierra Club plaintiffs' motion for a permanent injunction. 3 Order re: Pls.' Partial
2
Mot. For Summ. J., California (June 28, 2019) (States MSJ Order), ECF 185; Order re: Pl's
3
Partial Mot. For Summ. J., Sierra Club (June 28; 2019), ECF 185.4
4
Defendants filed an emergency application for a stay of the injunction with the Ninth
5
Circuit and, ultimately, the Supreme Court. The Ninth Circuit motions panel majority denied the.
6
stay application and found that this Court was correct in its determination that Defendants'
7
transfers were unlawful. Order, Sierra Club v. Trump, No. 19-16102 and 19-16300 (9th Cir. July
8
3, 2019), ECF 76. The Supreme Court, by a 5-4 vote, without commenting on the lawfulness of
9
Defendants' transfers or the States' ability to bring suit, granted a stay of the injunction in a one-
10
paragraph order, stating only that "the Government has made a sufficient showing at this stage
11
that the [Sierra Club] plaintiffs have no cause of action to obtain review of the Acting Secretary's
12
compliance with Section 8005." Order, on Appl. For Stay, Trump v. Sierra Club, No. 19A60
13
(U.S. July 26, 2019). The Ninth Circuit is now considering the merits of Defendants' appeal from
14
this Court's grant of partial summary judgment to the States and the Sierra Club plaintiffs.
15
In their earlier preliminary injunction motion, the States did not move on § 2808, but the
16
Sierra Club plaintiffs did. In ruling on the Sierra Club plaintiffs' motion, this Court expressed
17
deep skepticism of the legality of Defendants' reliance on§ 2808. Sierra Club PI Order 42-46.
18
However, the Court withheld judgment concerning § 2808 because Defendants had not yet
19
decided to take final action under§ 2808. Id. at 46. Neither the subsequent motion for summary
20
judgment, nor the appeals of this Court's rulings, addressed§ 2808.
21
22
23
24
25
26
27
28
3 This Court denied California and New Mexico injunctive relief in part because any injunction in
favor of the States would be duplicative of the relief contemporaneously granted to the Sierra
Club plaintiffs, and therefore the States would not suffer irreparable harm. States MSJ Order 8.
California and New Mexico have filed a ~ross-appeal from this ruling. ECF No. 191.
4 California's and New Mexico's motion for summary judgment relating to construction under§
284 and funding diversions under §§ 8005 and 9002 of FY 2019 DoD Appropriations Act did not
include arguments in support of their NEPA claims. The Court rejected plaintiffs' arguments
concerning the applicability of the IIRIRA waiver to DoD construction projects. Sierra Club PI
Order 4 7-48. The States are reasserting those arguments here to preserve their rights on appeal.
The NEPA claims stemming from the construction under § 284 are based on documents
previously filed with the court including PI RJN Exs. 34-35; Second Deel. of Kenneth P.
Rapuano, ECF No. 143-1.
5
Pls.' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA ( 4:19-cv-00872-HSG)
1
III.
DEFENDANTS' BORDER BARRIER PROJECTS UNDER§ 2808
Pursuant to President Trwnp's national emergency declaration, Defendants are now
2
3
diverting over $3.6 billion from 128 military construction projects to build 11 border barrier
4
projects. This motion addresses the harm caused by: (a) the diversion of funds from 17 of 19
5
military construction projects in the Plaintiff States, and (b) the use of those and other diverted
6
funds toward construction of seven border barrier projects within California and New Mexico.
On September 3, 2019, the DoD Secretary announced that he was authorizing the Army to
7
8
spend $1.8 billion originally intended for military construction projects outside of the United
9
States toward these border barrier projects. Notice of Decision by the DoD to Authorize Border
10
Barrier Projects Pursuant to 10 U.S.C. § 2808 (Sept. 3, 2019), ECF 206 (Sept. 3 Notice). Once
11
that money is spent, another $1.8 billion originally intended for military construction projects
12
within the United States will be made available for these projects. Id.
Of the 64 defunded domestic military construction projects, 19 are located in the Plaintiff
13
14
States. Ex. 1 to the Suppl. to Notice of Decision by DoD to Authorize Border Barrier Projects
15
Pursuant to 10 U.S.C. § 2808 (Sept. 5, 2019), ECF 207-1 (Defunded MILCON List). As shown in
16
the chart below, those 19 defunded projects total over $500,000,000. Id. 5
Defunded Military Construction Projects in States' Jurisdiction
State
Location Title
Line Item Title
California
Channel Islands
Construct C-130J Flight Simulator
ANOS
Facilitv
Colorado
Peterson AFB
Soace Control Facilitv
Hawaii
Joint Base Pearl
Consolidated Training Facility
.Harbor-Hickam
Kaneohe Bay
Security Improvements Mokapu Gate
Maryland
Fort Meade
Cantonment Area Roads
Joint Base Andrews PAR Relocate Haz Cargo Pad and EOD
Range
Child Development Center
New Mexico Holloman AFB
MQ-9 FTU Oos Facilitv
White Sands
Information Svstems Facilitv
New York
Emrineering Center
U.S. Military
Academy
Parking Structure
Oregon
Klamath Falls IAP
Construct Indoor Range
Replace Fuel Facilities
Virginia
Joint Base Langley- Construct Cyber Ops Facility
Eustis
17
18
19
20
21
22
23
24
25
26
27
28
5
Amount
$8,000,000
$8,000,000
$5,500,000
$26,492,000
$16,500,000
$37,000,000
$13,000,000
$85,000,000
$40,000,000
$95,000,000
$65,000,000
$8,000,000
$2,500,000
$10,000,000
As further discussed below, the States only assert harms regarding 17 of these p rojects.
6
Pls.' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
1
Norfolk
·Pentagon
Portsmouth
2
3
Wisconsin
4
Truax Field
Replace Hazardous Materials Warehouse
Pentagon Metro Entrance Facility
Replace Hazardous Materials Ware house
Ships Maintenance Facility
Construct Small Arms Range
$18,500,000
$12,111,000
$22,500,000
$26,120,000
$8,000,000
The money from the defunded military construction projects will be used to build 11 new
5
border barriers. Ex. 1 to Sept. 3 Notice, ECF 206-1 (List of Proposed Border Barrier Projects).
6
Defendants will use these funds to build five of these border barrier projects in California: San
7
Diego Project 4, San Diego Project 11, El Centro Project 5, El Centro Project 9, and Yuma
8
Project 66 (California Projects); totaling approximately 2.5 miles of new primary pedestrian
9
fencing and 20 miles of new secondary pedestrian fencing. Id. Defendants will build two border
10
barrier projects in New Mexico: El Paso Project 2 and El Paso Project 8 (New Mexico Projects);
11
totaling 29 .51 miles of new primary pedestrian fencing and 6 miles of new secondary pedestrian
12
fencing. Id. The first construction project within the States will be San Diego Project 4 where
13
ground-disturbing activities may begin as early as November 22, 2019. Ex. 3 to Sept. 3 Notice ,r
14
11. The Secretary authorized Defendants'to proceed with construction without complying with
15
environmental laws.§ 2808 Admin. Record Part 2 (2808 AR) at 9 (Sept. 16, 2019), ECF 212-2.
LEGAL ARGUMENT
16
17
I.
18
LEGAL STANDARD
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as
19
to any material fact and the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P.
20
56(a). Declaratory relief is appropriate "[i]n a case of actual controversy" in order to "declare the
21
rights and other legal relations of any interested party seeking such declaration, whether or not
22
further relief is or could be sought." 28 U.S.C. § 220l(a). A plaintiff is entitled to a permanent
23
injunction if it has "suffered an irreparable injury," ''remedies available at law ... are
24
inadequate," "the balance of hardships between the plaintiff and defendant" supports an equitable
25
remedy, and "the public interest would not be disserved." (jBay Inc. v. MercExchange, LLC, 547
26
27
28
6
Yuma Project 6 is located partially in California and partially in Arizona.
7
Pls.' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
1
U.S. 388, 391 (2006). When the federal government is the opposing party, these last two factors
2
for injunctive relief merge. Nken v. Holder, 556 U.S. 418,435 (2009).
3
II.
4
5
6
THE STATES ARE ENTITLED TO SUMMARY JUDGMENT IN THEIR FAVOR
A.
Defendants Exceeded Their Statutory Authority under § 2808 and Thus,·
Their Actions are Ultra Vires (Count 3)
As this Court preliminarily indicated in Sierra Club v. Trump, Defendants lack statutory
7
authority under§ 2808 to construct border barriers across vast swaths of the U.S.-Mexico border.
8
See Sierra Club PI Order 42-46. Under § 2808, when the President declares a national emergency
9
"that requires the use of the armed forces, the Secretary of Defense, without regard to any other
10
provision of law, may undertake military construction projects ... not otherwise authorized by
11
law that are necessary to support such use of the armed forces." 10 U.S.C. § 2808(a). Defendants
12
fail to satisfy at least two conditions of § 2808. First, while such "military construction" must be
13
"carried out with respect to a military installation," 10 U.S.C. § 2801(a), the locations where
14
Defendants plan to build border barriers with these funds are not military installations and
15
therefore are not "with respect to" a military installation. Second, while construction must be
16
"necessary to support [the] use of the armed forces" required by the national emergency, 10
17
U.S.C. § 2808(a), construction to assist Customs and Border Protection, a civilian law
18
enforcement agency, is plainly not. Consequently, Defendants' actions-·including the diversion
19
.of funds and imminent construction of border barriers under § 2808-are in excess of
20
Defendants' statutory authority and thus, ultra vires. See City ofArlington v. FCC, 569 U.S. 290,
21
297 (2013) ("[F]or agencies charged with administering congressional statutes[,] [b]oth their
22
power to act and how they are to act is authoritatively prescribed by Congress, so that when they
23
act improperly, no less than when they act beyond their juris~iction, what they do is ultra vires").
24
The States are entitled to a final judgment to that effect.
25
26
1.
The President's Emergency Powers Do Not Negate§ 2808's
Requirements
27
The States do not challenge the President's declaration of a national emergency here.
28
Instead, the States challenge the Defendants' improper actions taken pursuant to that declaration.
8
Pls.' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
1
Such a claim is justiciable. United States v. Spawr Optical Research, Inc., 685 F.2d 1076, 1081
2
(9th Cir. 1982) (Courts are "free to review whether the actions taken pursuant to a national
3
emergency comport with the power delegated by Congress.")
4
The NBA allows the President, when a national emergency has been declared, to utilize
5
emergency powers only as authorized by Congress in other federal statutes. See 50 U.S.C. § 1621.
6
It was enacted by Congress in 1976 to rein in, rather than expand, the presidential powers. The
7
NEA was designed to ensure that the president's "extraordinary" emergency powers would "be
8
utilized only when emergencies actually exist." S. Rep. No. 94-1168, at 2 (1976). Senator Frank
9
Church, who led the development of the NBA, testified before the Senate Committee of
10
Government Operations ''that the President should not be allowed to invoke emergency
11
authorities ... for frivolous or partisan matters, nor for that matter in cases where important but
12
not 'essential' problems are at stake." Hearing on H.R. 3884 Before the S. Comm. of
13
Governmental Operations, 94th Cong. 7 (1976). Senator Church continued that "[t]he Committee
14
intentionally chose language which would make clear that the authority of the Act was to be
15
reserved for matters that are 'essential' to the protection of the Constitution and the people." Id.
16
When such a national emergency has been declared, the NEA allows the president to utilize
17
emergency powers, but only as authorized by Congress in other federal statutes. Thus, Defendants
18
must comply with the requirements of § 2808.
19
20
21
2.
Defendants' Border Barrier Projects Are Not "Military Construction
Projects" as Required by§ 2808
Defendants' proposed border barrier projects in California and New Mexico are not
22
"military construction projects." The chapter in which§ 2808 appears defines "military
23
construction" as "any construction, development, conversion, or extension of any kind carried out
24
with respect to a military installation." 10 U.S.C. § 2801(a) (emphasis added). This Court
25
recognized the "critical language" in this definition "is the condition 'with respect to a military
26
installation.'" Sierra Club PI Order 43. A "military installation" is defined as a "base, camp, post,
27
station, yard, center, or other activity under the jurisdiction of the Secretary of a military
28
department." 10 U.S.C. § 2801(c)(4). The proposed barrier projects do.not satisfy this definition.
9
Pls.' Notice of Mot. and Mot. for Partial Surtun. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
1
The stretches of the U.S.-Mexico border where Defendants will build their border barrier
2
projects contain no military base, camp, post, station, yard, or center. To the contrary, much of the
3
land where the intended construction will take place was not even originally under the jurisdiction
4
of a military department. Sept. 3 Notice 2-4. In fact, none of the seven planned border barrier
5
projects in California and New Mexico were entirely within federal land under the administrative
6
jurisdiction of DoD when announced; Id., Ex. 3 at 2-3. El Centro Project 5 will be built on a
7
combin~tion of"Federal non-public domain land and non-Federal land." Id. at 3. The other six
8
projects will be built, "at least in part, on Federal public domain land currently under the
9
administrative jurisdiction of the Department of the Interior" (DOI). Id. DOI subsequently
'
10
transferred the federal lands under its jurisdiction into the Army's jurisdiction for three years to
11
effectuate this construction. Req. for Judicial Notice in Supp. of Mot. for Partial Summ. J. re:§
12
2808 (2808 RJN), Ex. 1.
13
In response to the Sierra Club'.s preliminary injunction motion regarding.§ 2808, as this
14
Court noted, Defendants did not attempt to characterize the U.S. Mexico border or a border
15
barrier as a "base, camp, post, station, yard [or] center;" in any event, this Court correctly held
16
they could not do so. Sierra Club PI Order 43-44. Instead, Defendants argued that their plan to
17
build border barriers fell within the statutory term "or other activity." Id. This Court properly
18
rejected that argument, id. at 44-46, and it has no more validity now than it did then.
19
The plain language of a statute controls where "the statutory language [is] unambiguous."
20
Chemehuevi Indian Tribe v. Newsom, 919 F.3d 1148, 1151 (9th Cir 2019). "When de.ciding
21
whether the language is plain, courts must read the words in their context and with a view to their
22
place in the overall statutory scheme." Id. (internal citation and quotation marks omitted). As this
23
Court already stated, classifying the southern border or border barriers as an "other activity,"
24
"fail[s] to appreciate that the words immediately preceding 'or other activity' in Section
25
2801(c)(4)-'a base, camp, post, station, yard, [and] center'-provide contextual limits on the
26
catch-all term." Sierra Club PI Order 44 (alteration in original).
27
This conclusion is supported by traditional tools of statutory interpretation. This Court
28
properly applied the statutory interpretation principles of noscitur a sociis and ejusdem generis to
10
Pls.' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
1
"construe 'other activity' as referring to similar discrete and traditional military locations" and
2
thus did "not readily see how the U.S.-Mexico border could fit this bill." Id. at 44-45. The
3
principle noscitur a sociis requires that a "word is known by the company it keeps." Id. at 44
4
(quoting Gustafson v. Alloyd Co., Inc., 513 U.S. 561,575 (1995)) (internal quotation marks
5
omitted). The principle ejusdem generis requires that "where general words follow specific words
6
in a statutory enumeration, the general words are construed to embrace only objects similar in
7
nature to those objects enumerated by the preceding specific woi:ds." Id. at 45 (quoting Wash.
8
State Dept. of Social & Health Servs. v. Guardianship Estate of Keffeler, 536 U.S. 371, 384
9
(2003)). The Supreme Court has applied these canons of statutory interpretation to limit
10
"catchalls for known unknowns" Hke "other activity." Yates v. United States, 135 S.Ct. 1074,
11
1087 (2015). In Yates, the Supreme Court limited the term "tangible object" by the words that
12
preceded it in a list, "record" and "document," reasoning that Congress would not have
13
specifically referred to "record" and "document" if it intended "tangible object" to be generic. Id.
14
Here, had Congress intended any military construction at any location to constitute "other
15
activity" it would have had no reason to refer specifically to "a base, camp, post, station, yard,
16
[and] center." 10 U.S.C. § 2801(c)(4); see also Sierra Club PI Order at 45. The phrase "other
17
activity" necessarily refers to something with the characteristics of other places listed, such as a
18
base or camp.
19
20
21
Ignoring the traditional tools of statutory interpretation, Defendants argue that these border
barrier projects constitute "military construction" because: (1) non-DoD federal land was
. transferred to the jurisdiction of a Secretary of a Military Department, (2) the Secretary of a
22
Military Department will acquire non-Federal land through purchase and condemnation, and (3)
23
the Secretary of a Military Department will accept "custody and accountability over the land" and
24
will report ''the land in the Military Department's inventory, either as its own installation or as
25
part of an existing, nearby military installation." 2808 AR at 3. In other words, according to
26
Defendants, once a military department takes possession of the land necessary for construction of
27
a project, the Secretary of a Military Department can simply declare that construction on such
28
land constitutes a "military installation." But, if this were correct, it is difficult to conceive of any
· 11
Pis.' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
1
construction by the military that would not constitute construction with respect to a "military
2
installation," effectively nullifying the "military installation" condition in the statute.
3
This interpretation violates another fundamental principle of statutory interpretation. Courts
4
have a "duty to give effect, if possible to every clause and word of a statute." Duncan v. Walker,
5
533 U.S. 167, 174 (2001) (internal citation and quotation marks omitted). Defendants' theory
6
violates this principle because it would render the term "military installation" "insignificant, if not
7
wholly superfluous." Id. This Court properly recognized that the term "other activity" cannot
8
include "everything under the jurisdiction of the secretary of a military department" for then
9
''there would have been no reason to include a list of specific, discrete military locations." Sierra
10
11
12
Club PI Order 45. There is no reason for this Court to depart from this determination.
3.
Defendants'· Border Barrier Projects Are Not Necessary to Support
the Use of the Armed Forces as Required by § 2808
13
Another limitation on ~e military construction authority granted to DoD "in the event
14
of ... the declaration by the President of a national emergency ... that requires the use of armed
15
forces" is that DoD may only undertake construction projects ''that are necessary to support such
16
use of the armed forces." 10 U.S.C. § 2808(a). Defendants state that their goals in building these
17
border barrier projects are to "deter illegal entry," "channel migrants to ports of entry," and
18
"increase the vanishing time of those illegally crossing the border." List of Proposed Border
19
Barrier Projects 1. However, Congress has made clear that such goals are to be effectuated by
20
civilian law enforcement through DHS, not the armed forces. See 8 U.S.C. § 1103(a)(5) (the
21
Secretary of Homeland Security "shall have the power and duty to control and guard the
22
boundaries and borders of the United States against the illegal entry of aliens.").
23
The President's emergency declaration does not help Defendants. Even if the Court accepts
24
that the President has declared an emergency that requires the use of the armed forces, nothing
25
suggests that these construction projects are necessary to support that use of the armed forces.
26
Defendants' own explanation of the armed forces' role in building border barriers on its face
27
shows that the barriers are not a military construction project necessary to support the use of the
28
armed forces. Defendants argue that construction of the border barriers will help DoD provide
12
Pk' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
1
"support functions" to DBS-effectively admitting that the involvement of the armed forces is
2
only occurring to assist a civilian agency, not to support the use of the armed forces. 2808 AR 1.
3
Defendants' further admission that the border barriers will reduce DHS's reliance on DoD, id. at
4
2, underscores the point. Construction with the express purpose of reducing a civilian law
5
enforcement agency's reliance on a military department is not necessary to support the "use of the
6
armed forces." As it is aimed at supporting a civilian agency in carrying out its statutory function,
7
such construction could not be much further from this description. Defendants' border barrier
8
·projects are thus not necessary to support the use of the armed forces as required by § 2808.
9
10
B.
Defendants Violated the APA (Count 4)
By failing to comply with the statutory limitations of§ 2808 as described above,
11
Defendants also violated the APA, which prohibits actions "in excess of statutory jurisdiction,
12
authority, or limitations, or short of statutory right." 5 U.S.C. § 706(2)(C). Defendants' actions
13
violate the APA's prohibition on arbitrary and capricious agency action as well. This aspect of the
14
APA-where "[t]he court's role is to ensure that the agency considered all of the relevant factors
15
and that its decision contained no 'clear error of judgment,"' State ofAriz. v. Thomas, 824 F.2d
16
745, 748(9thCir.1987)(quotingCitizenstoPres. OvertonPark,Inc. v. Vo(pe,401 U.S.402,416
17
(1971))-is separate from the question of whether the agency acted outside the scope of its
18
authority (i.e., whether that action is ultra vires).
19
Defendants did not consider all the relevant factors as the APA requires. Critically, the
20
Section 2808 administrative record fails to address any of the harms to public health and safety
21
arising from the defunding of over 120 military construction projects. Defunded MILCON List,
22
1-3. For example, Defendants have cancelled two projects totaling $41 million to construct new
23
hazardous materials warehouses at Naval Stations in Norfolk and Portsmouth, Virginia, to replace
24
existing World War II-era facilities that were not designed to contain hazardous materials. 2808
25
RJN Bxs. 15, 17. Further, in explaining the need for a new ship's maintenance facility, including
26
a nuclear containment shop, the Navy itself described the existing facility as presenting "severe
27
life safety and environmental concerns" and a "high risk environment." 2808 RJN Ex. 18.
28
Cancellation of the projects will place servicemembers and the nearby public at "high risk" of
13
Pls.' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
1
"severe" harm from these improperly contained hazardous materials. Similarly, Defendants have
2
cancelled a $26.5 million project in Hawaii to improve security at one of only two access points
3
to the Marine Corps Base in Kaneohe Bay, which the Marine Corps asserted was necessary to
4
bring it into compliance with current anti-terrorism and force protection standards. 2808 RJN Ex.
5
5. Cancellation of these project will therefore place servicemembers at risk, as well as impede
6
military readiness. Defendants themselves identified these harms and as well as other significant
7
public health, safety, and environmental harms that would result frQm these particular projects not
8
moving forward. 2808 RJN Exs. 2-19.
9
Defendants have also canceled the construction of an $8 million facility that would have
10
housed a C-130J flight simulator, depriving the California Air National Guard of the ability to
, 11
provide enhanced aerial firefighting training to flight crews that regularly combat massive
12
wildfires in California. Declaration of Colonel William Green (Green Deel.), ,r,r 6-9, 15-16, 18-
13
25. In a state that faces increasing threats due to wildfires, the elimination of this enhanced
14
training exposes Californians and their communities to significant health and safety risks. Id. ,r,r
15
8, 25.
16
The Section 2808 administrative record contains no evidence that Defendants considered
17
these serious public health and safety concerns. Instead, Defendants simply assert that these
18
projects were defunded because the award dates are in fiscal year 2020 or later and the
19
cancellation of these projects "would have a minimal effect on Component readiness." 2808 AR
20
at 5. However, as explained above, the record shows that the cancellation of these projects may
21
cause severe harm to both the military and the general public. Thus, Defendants "entirely failed to
22
consider an important aspect of the problem" in violation of the APA. Motor Vehicles Mrfs. Ass 'n
23
of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); see also Greater Yellowstone
24
Coal., Inc. v. Servheen, 665 F.3d 1015, 1030 (9th Cir. 2011) (overturning agency decision where
25
"considerable data ... point[ed] in the opposite direction" of the agency's decision).
26
Finally, Defendants "relied on factors which Congress has not intended it to consider" by
27
diverting $3.6 billion additional federal funds toward a border barrier despite Congress's clear
28
rejection of any appropriation for a border barrier beyond $1.375 billion for FY 2019. Supra
14
Pls.' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
1
Background I; see State Farm, 463 U.S. at 43 (agency action that "relied on factors which
2·
Congress has not intended it to consider" is arbitrary and capricious).
3
C.
4
This Court previously recognized that interpreting § 8005 of the FY 2019 DoD
Defendants Violated the Constitution (Counts 1, 2, and 3)
5
Appropriations Act and 10 U.S.C. § 284 to "permit [the] massive [$2.5 billion] redirection of
6
funds" toward a border wall project that Congress explicitly refused to fund "raise[d] serious
7
constitutional questions," Sierra Club PI Order 36-42, and that interpretation "would likely
8
violate the Constitution's separation ofpowers principles." Sierra Club PI Order 38. Defendants'
9
use of§ 2808 to redirect $3.6 billion of funds toward 11 border barrier projects Congress refused
10
to fund raises equally serious concerns under the separation of powers doctrine as well as the
11
Appropriations and Presentment Clauses. Accordingly, this Court should find Defendants' actions
12
are unconstitutional on each of the grounds discussed below.
13
14
1.
Defendants' ~ctions Violate the Separation of Powers Doctrine
Defendants' unilateral diversion of billions of dollars toward the construction of a border
15
wall, in the face of Congress's refusal to appropriate funds to that project, is antithetical to the
16
design of our constitutional system, which "exclusively grants the power of the purse to
17
Congress, not the President." City & Cty. of San Francisco v. Trump, 897 F.3d 1225, 1231 (9th
18
Cir. 2018). The undisputed facts here-.(i) Congress's repeated rejection ofl;,order barrier funding
19
from 2017-18; (ii) Congress's pointed refusal to appropriate $5.7 billion in requested border
20
barrier funding resulting in a government shutdown exclusively over the border barrier dispute;
21
and (iii) Congress's limited $1.375 billion appropriation for pedestrian fencing in a specified area,
22
CAA§ 230-32-demonstrate that Defendants' transfer of funding for construction in other
23
geographic areas is "incompatible with the expressed or implied will of Congress." Youngstown
24
Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring).
25
If Defendants' interpretation of the provisions on which they rely were correct, then
26
"DoD's authority under the statute would render meaningless Congress's constitutionally-
27
mandated power to assess proposed spending, then render.its binding judgment as to the scope of
28
permissible spending." Sierra Club PI Order at 38. Defendants' diversion of funds toward the
15
Pls.' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
1
proposed border barrier projects despite Congress having "repeatedly rejected legislation that
2
would have funded substantially broader border barrier construction" only underscores the
3
separation of powers violation. Id. at 38-39 (citing San Francisco, 897 F.3d at 1234).
4
While Congress's intent to refuse to appropriate any more funding for border barriers is
5
clear without more, Congress also included a rider in the CAA limiting the augmentation of the
6
$1.375 billion appropriation made by Congress in that act. That provision states:
7
10
None of the funds available in this or any other appropriations Act may be used to increase,
eliminate or reduce funding for a program, project, or activity as proposed in the President's
budget request for,a fiscal year until such proposed change is subsequently enacted in an
appropriation Act, or unless such change is made pursuant to the reprogramming or transfer
provisions of this or any «?ther appropriations Act.
11
CAA,§ 739. The Trump Administration requested $1.6 billion in border barrier funding in its FY
12
2019 budget, and later modified that request to seek $5.7 billion. Sierra Club PI Order 4. Since
13
Congress did not approve any funding for a border barrier in FY 2019 beyond the $1.375 billion
14
in the CAA, no funds made available in "any other appropriations Act" may be used to "increase"
15
that appropriation unless subsequently enacted in an appropriation act or done validly through a
16
reprogramming or transfer provision in an appropriations act. Accordingly, Defendants cannot
17
use§ 2808, which is not a reprogramming or transfer provision, to increase the FY 2019 border
18
barrier appropriation made by Congress in the CAA. Mem. Op. at 29-32, El Paso Cty. v. Trump,
19
No. 19-cv-66 (W.D. Tex. Oct. 11, 2019), ECF No. 129 (Texas Border Wall Decision) (finding the
20
diversion of fund under § 2808 violates § 739 of the CAA).
8
9
21
22
2.
Defendants Have Violated the Appropriations Clause
This Court also previously found that Defendants' interpretation of their authority to divert
23
$2.5 billion under these circumstances "would likely pose serious problems under the
24
Appropriations Clause, by ceding essentially boundless appropriations judgment to the executive
25
agencies." Sierra Club PI Order 40. The redirection of an even greater amount of funds to the
26
border wall under § 2808 raises the same Appropriations Clause problem.
27
The Appropriations Clause secures Congress's control over federal spending with its
28
16
Pls.' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
1
"straightforward and explicit command" that "no money can be paid out of the Treasury unless it
2
has been appropriated by an act of Congress." Off. of Pers. Mgmt. v. Richmond, 496 U.S. 414,
3
424 (1990) (citation omitted). To satisfy the Appropriations Clause, there must be both (1) a
4
"command," i.e., an authorization to spend funds, and (2) an actual "appropriation of ... money
5
that [the agency] may use for that [particular] purpose." Nevada v. DOE, 400 F.3d 9, 13 (D.C.
6
Cir. 2005). For the reasons discussed above,§ 2808's authorization to "undertake military
7
construction projects" neither authorizes construction of border barriers nor appropriates funding
8
for that purpose. See 31 U.S.C. § 130l(a) ("Appropriations shall be applied only to the objects for
9
which the appropriations were made except as otherwise provided by law.").
10
I
The $3.6 billion diversion of military construction funds toward the border wall project
11
further violates the Appropriations Clause's prohibition against "evad[ing]" spending limitations
12
set by Congress. Richmond, 496 U.S. at 428. As a bedrock principle of appropriations law and the
13
separation of powers, a federal agency cannot use a general appropriation for an expenditure
14
where Congress has spoken more specifically on the same expenditure. See Nevada, 400 F.3d at
- 15
16; see also FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) ("[T]he
16
meaning of one statute may be affected by other Acts, particularly where Congress has spoken
17
subsequently and more specifically to the topic at hand.") (emphasis added). 7 This principle plays
18
a crucial role in maintaining the balance of power between the legislative and executive branches,
19
because without it ''the executive would possess an unbounded power over the public purse of the
20
nation; and might apply all its monied resources at his pleasure." Dep 't of the Navy v. Fed. Labor
21
22
23
24
25
26
27
28
7Although
the Government Accountability Office (GAO) has recognized this to be a "well
settled" principle supported by a "legion" of cases, Principles of Federal Appropriations Law 3409 (4th Ed. 2017), the GAO recently concluded that DOD's use of 10 U.S.C. § 284 and§ 8005
of the FY 2019 DoD Appropriations Act for border barrier construction, where the CAA provided
for a more specific appropriation, did not violate this principle. B-330862 (Sept. 5, 2019). That
conclusion contradicts prior GAO opinions and was not based on full consideration of the issues
relevant here. The GAO reviewed Defendants' "legal views" and pleadings from this case, but
there is no indication that it considered or even reviewed the Plaintiff States' pleadings and
arguments. B-330862 (Sept. 5, 2019). The GAO did not consider whether the use of a general
appropriation through§§ 284 and 8005 "evade[s]" Congress's specific appropriation in violation
of the Appropriations Clause. See id.; see also Richmond, 496 U.S. at 428. Finally, the GAO
opinion does not make any findings about § 2808 and there is no indication that Congress "vested
DOD with authority to construct fences" under § 2808, as the GAO believed to be the case with
respect to 10 U.S.C. § 284.
·
17
Pls.' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
1
Rel. Auth., 665 F.3d 1339, 1347 (D.C. Cir. 2012) (Kavanaugh, J.) (citation omitted).
2
The principle's application here is straightforward. Congress specifically appropriated
3
$1.375 billion to fund a barrier for a specific and limited segment of the southwest border in
4
Texas under enumerated conditions. CAA, § 230-32. Even if § 2808 authorized and appropriated
5
funds for border barrier construction (which it did not), that provision, at most, provides a more
6
general appropriation. Defendants cannot evade Congress's prescribed limitations on the specific
7
amount, location, and manner in which a border barrier may be built, CAA,§§ 230-32, by
8
redirecting different funds appropriated for more general purposes for construction in a location
9
that Congress declined to fund. See Gonzales v. Oregon, 546 U.S. 243, 262 (2006). A federal
10
district court in Texas has, in fact, preliminarily enjoined use of funds diverted through § 2808 for
11
this reason. Texas Border Wall Decision at 25-29. Simply put, "[w]here Congress has addressed
12
the subject as it has here, and authorized expenditures where a condition is met, the clear
13
implication is that where the condition is not met, the expenditure is not authorized." United
14
States v. MacCollom, 426 U.S. 317,321 (i976).
15
3.
Defendants Have Violated the Presentment Clause
16
This Court has already found that it "would subvert 'the difficult judgments reached by
17
Congress' to allow Defendants to circumvent Congress's clear decision to deny the border barrier
18.
funding sought here when it appropriated a dramatically lower amount in the CAA." Sierra Club
19
PI Order 34 (quoting United States v. McIntosh, 833 F.3d 1163, 1175 (9th Cir. 2016)); see also
20
id. at 39 (raising doubt that DoD "has authority to redirect sums ... in the face of Congress's
21
appropriations judgment in the CAA"). Under that same reasoning, Defendants'· actions.under the
22
NBA and§ 2808 violate the Presentment Clause. U.S. Const., art. I,§ 7, cl. 2.
23
Under the Presentment Clause, the president lacks the power to single-handedly "enact,"
24
"amend," or "repeal" appropriations after they were approved by both Houses of Congress.
25
Clinton v. City ofNew York, 524 U.S. 417,438 (1998). In City ofNew York, the Supreme Court
26
concluded that the Line-Item Veto Act violated the Presentment Clause because it empowered the
27
president to effectively amend appropriations passed by Congress without following the
28
Constitution's "finely wrought" procedures. Id. at 445-46. Here, Congress appropriated $1.375
18
Pls.' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
1
billion for limited barrier funding in Texas. In augmenting that funding with billions of additional
2
funds for use across the southern border without limitation, the President "reject[ed] the policy
3
judgment made by Congress" and substituted it with "his own policy judgment" based "on the
4
same conditions that Congress evaluated when it passed [the CAA]." Id. at 444.
5
Even if Congress had authorized this action through the NEA or § 2808, that would be of
6
"no moment," because Congress cannot authorize the executive branch to effectively amend
7
appropriations "without observing the procedures set out in Article I, § 7." Id. at 445-46. But, as
8
applied here, the NEA turns the Article I, § 7 procedures on their head. Although Congress can
9
pass a resolution terminating the national emergency, that resolution has to be enacted into law,
10
requiring the president's sign~.ture. 50 U.S.C. § 1622(a)(l). The Line-Item Veto Act held
11
unconstitutional in City ofNew York contained a similar procedure, under which congressional
12
passage of a "disapproval bill" would void the president's line-item veto of an appropriation, but
13
only if it was enacted into law. City ofNew York, 524 U.S. at 436 (citing 2 U.S.C. § 691b(a)). In
·14
either case, the statutory disapproval process violates the Constitution because it reverses the
15
balance of power by effectively requiring a two-thirds vote by Congress to override a presidential
16
veto and reclaim the effect of its original appropriation, rather than, as the Constitution
17
commands, requiring the President to observe the limits of enacted appropriations laws unless he
18
convinces Congress to pass a new law.
19
D.
20
Defendants violated NEPA by failing to conduct an environmental review of the
Defendants Violated NEPA (Claim 6)
21
construction they unlawfully plan to undertake. NEPA is the "basic national charter for protection
22
of the environment." 40 C.F.R. ,§ 1500.l(a). It requires environmental review of"major Federal
23
actions significantly affecting the quality.of the human environment ...." 42 U.S.C. § 4332(C).
24
The goal is to ensure "that environmental information is available to public officials and citizens
25
before decisions are made and before actions are taken." 40 C.F.R. § 1500.l(b).
26
Defendants violated NEPA by failing to conduct environmental review with respect to the
27
border barrier projects constructed ostensibly under both§ 284 and §2808. As asserted in
28
"California's and New Mexico's motion for a preliminary injunction, DoD cannot utilize the
19
Pls.' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
1
Secretary of Homeland Security's authority under section 102 of the Illegal Immigrant
2
Responsibility and Immigrant Reform Act (IIRIRA) (8 U.S.C. 1103 note) in order to expedite
3
construction of the barriers constructed pursuant to Section 284. States PI Reply, ECF 112, 16-17.
4
Section 102(c)(l) explicitly states that the waiver authority is limited to barriers constructed
5
"under this section," meaning section 102 of IIRIRA. Since the barriers at issue are being
6
constructed by DoD pursuant to a different statutory provision, any waiver issued by DHS under
7
IIRIRA would be inapplicable and DoD must comply with NEPA. See Determination Pursuant to
8
Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as
9
Amended, 84 Fed. Reg. 17,185, 17,187 (Apr. 24, 2019); 84 Fed. Reg. 21,800-01 (May 15, 2019);
10
see also PI RJN Exs. 34-35; Second Deel. of Kenneth P. Rapuano, ECF No. 143-1.
11
With respect to Defendants' multifaceted scheme to build the border barrier projects under
12
§ 2808, the obligation to conduct environmental review under NEPA falls on two agencies. Firsf,
13
DoD should have prepared an environmental impact"statement concerning the construction of the
14
border barrier projects. On February 15, 2019, President Trump declared a national emergency
15
and sta.ted his intent to use up to $3.6 billion to build border barriers under Section§ 2808. PI
16
RJN Ex. 28. This proposal crystalized on September 3, 2019 when the Secretary of Defense
17
authorized and identified the location of 11 border barrier projects in California, Arizona, New
18
Mexico, and Texas under § 2808. Sept. 3 Notice. This was a major federal action requiring DoD
19
to engage in a public environmental review process. DoD violated NEPA by failing to conduct
20
any such review.
21
Second, DOI should haye complied with NEPA before transferring land to DoD. A decision
22
to transfer jurisdiction over land to another agency to enable construction is a "major federal
23
action[] significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). In
24
Anacostia Watershed Soc. v. Babbit, 871 F.Supp. 475, 481-483 (D.C. Cir. 1994), the ~ourt held
25
the National Park Service (NPS) violated NEPA by failing to conduct environmental review
26
before transferring jurisdiction of National Parks land to the District of Columbia. The Court
27
rejected the NPS's attempt to classify the transfer as a "mere paper trans~ction." Id. at 481. The
28
NPS knew the District of Columbia planned to develop a theme park on, the transferred land and
20
Pls.' Notice of Mot. and Mot. for Partial Swnm. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
1
thus "had sufficient information regarding potential environmental effects" to "comply with
2
NEPA before making its decision to transfer jurisdiction." Id. at 483. Here, the intent to build
3
border barriers on the land transferred from DOI to DoD is well known and therefore DOI had
4
sufficient information regarding the potential effects of the border barrier projects to comply with
5
NEPA before making its decision to transfer jurisdiction. Thus, DOI also violated NEPA.
6
Defendants argue § 2808 authorizes the Secretary of Defense to undertake military
7
construction projects without complying with NEPA. 2808 AR at 9 (the Secretary of Defense
8
authorized and directed the Acting Secretary of the Army to construct the border barriers
9
"without regard to any other provision of law," including NEPA). Regardless of whether or not
10
this language exempts the Secretary of Defense from complying with NEPA in some
11
circumstances, it cannot excuse NEPA compliance here where the border barrier projects cannot
12
be built under § 2808 for all the reasons described above. Further, even if this Court found the
13
proposed border barriers could be built under § 2808 and DoD was exempt from NEPA, DOI
14
would still need to comply with NEPA. The plain language of§ 2808 does not extend the ability
15
to take action "without regard to any other provision oflaw" to DOI. The States are thus entitled
16
to summary judgment with respect to NEPA.
17
III. Tms COURT SHOULD ENJOIN DEFENDANTS' USE OF§ 2808 TO DEFUND MILITARY
. 18
CONSTRUCTION PROJECTS IN THE STATES AND CONSTRUCT BORDER BARRIERS IN
CALIFORNIA AND NEW MEXICO
19
A.
20
California and New Mexico have been and will further be irreparably harmed in two ways
Defendants' Actions Irrepara.bly Harm the States
21
from the border barriers built under § 2_808. First, by constructing the border barriers without
22
complying with state environmental laws, Defendants will and already have harmed those states'
23
sovereign interests. Second, Defendants' construction activities and border barriers will
24
irreparably injure wildlife and plants in the sensitive desert environments where the barriers are to
25
be constructed.
26
27
In addition, New Mexico, Colorado, Hawaii, Maryland, New York, Oregon, Virginia, and
Wisconsin face irreparable harm from Defendants' unlawful diversion of funds from military
28
21
Pls.' Notice of Mot. and Mot. for Partial Smnm. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
1
construction projects that would otherwise bring valuable financial benefits, including lost tax
2
revenue, directly to those states.
3
4
5
1.
Construction and Operation of Defendants' Border Barriers Harm
California's and New Mexico's Sovereign Interests in Enforcing
Their State Laws
Defendants' diversion of funqs, border barrier construction, and disregard for
6
environmental law undermine California's and New Mexico's sovereign interests in enforcing
7
state laws, and these injuries to the States' "sovereign interests and public policies" constitute
8
irreparable harm. Kansas v. United States, 249 F.3d 1213, 1227-28 (10th Cir. 2001); see also
9
Brackeen v. Bernhardt, 937 F.3d 406, 424 (5th Cir. 2019) (holding if federal authorities
10
"promulgated a rule binding on states without the authority to do so, then State Plaintiffs have
11
suffered a concrete injury to their sovereign interest.").
12
13
14
15
a.
Defendants' Actions Prevent California from Enforcing Its
Laws
California has many laws designed to protect the State's water and air quality; wildlife,
land, and other environmental resources; and public health. See, e.g., Porter-Cologne Water
i
I
16
Quality Control Act, Cal. Water Code§§ 13000-16104; California Endangered Species Act, Cal.
17
Fish and Game Code §§ 2050-2089.26. Defendants' unlawful diversion of funds to construct the
18
California Projects and refusal to comply with these environmental laws that apply to their
19
actions prevent California·from exercising its sovereign right to enforce these laws.
20
21
(1)
Water Quality Laws
Construction of the California Projects will involve dredge and fill activities that could
22
impair water quality in violation of federal and state law. Ordinarily, before such dredge and fill
23
activities can proceed, federal officials must obtain certification of compliance with California's
24
water quality standards. Cal. Water Code§ 13260 (imposing requirements on "persons" prior to
25
discharging waste); id. § 13050(c) (defining "person" to include "the United States, to the extent
26
authorized by federal law"); see also 33 U.S.C. § 134l(a)(l) (requiring state water quality
27
certification as part of federal permit). Indeed, as required by federal and state law, federal
28
officials have previously sought such certifications for construction projects in the project areas.
22
Pls.' Notice of Mot. and Mot. for Partial Sumni. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
1
App'x ofDecls. Re: Envt'l Harms ISO Partial MSJ on 2808 and NEPA (2808 Env. App'x) Ex. 2
2
(Dunn Deel. ,r,r 11-13); Ex. 3 (Gibson Deel. ,r 12). Further, under the federal Clean Water Act,
3
Defendants must adopt water-pollution-mitigation measures to obtain a state permit certification
4
from a California regional water board. 33 U.S.C. § 1341(a)(l); 2808 Env. App'x Ex. 2 (Dunn
5
Deel. ,r,r 8-10, 21); Ex. 3 (Gibson Deel. ,r,r 9-11, 19). The conditions and mitigation measures
6
imposed during the state permit and certification process are a primary means by which
7
California implements its water quality objectives and enforces its water quality laws. Id.
8
By disregarding environmental law, Defendants undermine California's sovereign interests
9
"in the conservation, control, and utilization of the water resources of the state" and in protecting
10
"the quality of all the waters of the state ... for use and enjoyment by the people of the state."
11
Cal. Water Code§ 13000. Defendants' actions are particularly injurious because the California
12
Projects "p(?Se a high risk for storm water run-off impacting ... water quality during the
13
construction phase." 2808 Env. App'x Ex. 2 (Dunn Deel. ,r 20); Ex. 3 (Gibson Deel. ,r 18).
14
15
(2)
Air Quality Laws
Defendants also would ordinarily be requiredto ensure the California Projects conform to
16
California's air quality standards by complying with the federal Clean Air Act as set forth in
17
California's State Implementation Plan (SIP). 42 U.S.C. § 7506(c)(l). The Clean Air Act
18
prohibits federal agencies from engaging in, supporting, or financing any activity that does not
19
conform to a SIP. 40 C.F.R. § 93.150(a). "Conformity" violations include "caus[ing] or
20
contribut[ing] to any new violation of any standard," "increas[ing] the frequency or severity of
21
any existing violation of any standard in any area," or "delay[ing] timely attainment of any
22
standard ... in any area." 42 U.S.C. § 7506(c)(l)(B)(i)-(iii). These safeguards prevent federal
23
agencies from interfering with states' abilities to comply with the Clean Air Act. Id.
24
But for the funding diversion and Defendants' failure to comply with environmental law,
25
the local air districts with jurisdiction over the California Project areas wmµd enforce rules to
26
reduce the amount of fine particulate matter generated from Defendants' construction activities,
27
by requiring Defendants to develop and implement a dust control plan. Pls.' RJN ISO 284 MSJ,
28
[ECF No. 176-3] ("284 RJN") Ex. 4; 2808 RJN Ex. 20; 42 U.S.C. §§ 7418(a); 7506(c)(l); 40
23
Pls.' Notice of Mot. and Mot. for Partial Summ.. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
1
C.F.R. § 52.220(c)(345)(i)(E)(2); 75 Fed. Reg. 39,366 (July 8, 2010). In addition to protecting
2
Californians by supporting federal health standards, these rules mitigate blowing dust that can
3
cause additional acute regional or local health problems. 284 RJN Ex. 5. Thus, by proceeding
4
with the unlawfully funded construction without complying with California's laws, Defendants
5
will impair California's sovereign interests in protecting its environment and public health.
6
7
(3)
Endangered Species Laws
Finally, but for Defendants' diversion of funds under.§ 2808 and refusal to comply with
8
environmental law, Defendants.could not build the California Projects without ensuring the
9
project "is not likely to jeopardize the continued existence of any endangered species or
10
threatened species or result in the destruction or adverse modification of [critical] habitat of such
11
species." 16 U.S.C. § 1536(a)(2). Compliance with this provision would protect species
12
threatened, endangered, or of special concern under California law and allow California to
13
continue implementing habitat conservation agreements with federal agencies that impose
14
limitations on habitat-severing projects like the California Projects. 284 RJN Ex. 6; 2808 Env.
15
App'x Ex. 1 (Clark Deel. ,r,r 22, 34, 36-37). Defendants' disregard for these protections
16
undermines California's ability to enforce the California Endangered Species Act and "the policy
17
of the state to conserve, protect, restore, and enhance any endangered species or any threatened
18
species and its habitat." Cal. Fish & Game Code§ 2052.
19
20
21
b.
Defendants' Actions Prevent New Mexico from Enforcing its
Laws
New Mexico also has enacted and enforces environmental laws to protect its air quality and
22
wildlife. By using the disputed funds to construct the New Mexico Projects without complying
23
with these laws, Defendants impair New Mexico's "protection of the state's beautiful and
24
healthful environment," which is "of fundamental importance to the public interest, health, safety
25
and the general welfare." N.M. Const., art. XX,§ 21.
26
27
28
(1)
Air Quality Laws
El Paso Project 2, a portion of which falls within Luna County, would normally be subject
to a dust control plan that New Mexico adopted under the Clean Air Act. 284 RJN Ex. 7; 40
24
Pls.' Notice of Mot. and Mot. for Partial SUlDIU. J. re Section 2808 and NEPA ( 4:19-cv-00872-HSG)
1
C.F.R. § 51.930(b); N.M. Admin. Code§§ 20.2.23.108-113. The plan "limit[s] human-caused
2
emissions of fugitive dust into the. ambient air by ensuring that control measures are utilized to
3
protect human health and welfare." N.M. Admin. Code § 20.2.23.6. Defendants' unlawful funds
4
transfer and disregard of environmental law would thus impair New Mexico's ability to vindicate
5
its sovereign interest in protecting human health and welfare.
6
(2)
Wildlife Corridors and Endangered Species Laws
7
Defendants' § 2808 fui:tding diversion, refusal to comply with environmental law, and
8
resulting construction also will impede New Mexico's ability to implement its Wildlife Corridors
9
Act, which aims to protect large mammals' habitat corridors from human-caused barriers.such as
10
roads and walls, 2019 N.M. Laws Ch. 97, and requires New Mexico agencies to create a "wildlife
11
corridors action plan" to protect species' habitat. Supp. PI RJN [ECF No. 112-1] Ex. 53. Several
12
important wildlife corridors run through, or adjacent to, the New Mexico Projects including in
13
Hidalgo and Luna Counties. 2808 Env. App'x Ex. 5 (Traphagen Deel.
14
antelope, mule deer, mountain lions, and bighorn sheep are all "large mammals" protected under
15
the Act. 2019 N.M. Laws Ch. 97 § 2.B. The New Mexico Projects will completely block habitat
16
corridors for these species and impair New Mexico's ability to protect these important corridors.
17
2808 Env. App'x Ex. 5 (Traphagen Deel ,r 23);
18
,m 19, 22-24). Pronghorn
Further, the New Mexico Projects will harm species that New Mexico's laws were enacted
19 ·
to protect such as the white-sided jackrabbit and the Mexican wolf, which is endangered under
20
both New Mexico and federal endangered species acts. See N.M. Stat. Ann.§ 17-2-41; 2808 Env.
21
App'x Ex. 5 (Traphagen Deel. ,r,r 16-19, 24). The New Mexico Projects will bisect important
22
wildlife habitats, impairing the access of the Mexican Wolf and other endangered species to those
23
habitats. Id. Ex. 4 (Nagano Deel. ,r 25); Ex. 5 (Traphagen Deel. ,r,r 18-19, 23-24). Absent a ruling
24
in the States' favor and issuance of an injunction, New Mexico's sovereign ability to enforce
25
these laws and protect these interests will be impaired.
26
27
28
25
Pls.' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
1
c.
2
3
Defendants Irreparably Harm California's and New Mexico's
Sovereign Interests by Preventing Them from Enforcing State
Laws
There is irreparable harm whenever a government cannot enforce its own laws. Maryland v.
4
King, 567 U.S. 1301, 1301 (2012) (Roberts, C.J., in chambers). States possess undeniable
5
sovereign interests in their "power to create and enforce a legal code," Alfred L. Snapp & Son,
6
Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 601 (1982), including codes protecting the natural
7
resources and public health within their borders. See also Maine v. Taylor, 477 U.S. 131, 151
8
(1986) (the State "retains broad regulatory authority to protect the health and safety of its citizens
9
and the integrity of its natural resources."). Courts recognize that these sovereign interests are
10
undermined where federal action impedes enforcement of state statutes. See, e.g., State ofAlaska
11
v. U.S. Dept. ofTransp., 868 F.2d 441,443 (D.C. Cir. 1989) (holding states have sovereign
12
interests in enforcing state consumer protection laws impeded by federal actions). And any time a
13
state is prevented "from effectuating statutes enacted by representatives of its people, it suffers a
14
form of irreparable injury" separate from any injury to the persons or things those statutes are
15
designed to protect.New Motor Vehicle Bd. of California v. Orrin W Fox Co., 434 U.S. 1345,
16
1351 (1977) (Rehnquist, J., in chambers).
17
Defendants argue § 2808 authorizes the Secretary of Defense to undertake military
18
construction projects without following environmental laws. 2808 AR at 4. In addition to being
19
wrong for the reasons described above, this position also impedes the States' ability to enforce
20
and effectuate duly enacted state environmental laws protecting the States, their residents,.and
21
their wildlife from Defendants' construction projects-which will result in nearly 58 linear miles
22
of permanent border wall in California and New Mexico. Defendants' use of§ 2808 to effectuate
23
their plan and override otherwise applicable state laws infringes on the States' sovereign interests
24
and causes irreparable harm as a result.
25
26
27
28
2.
Construction and Operation of Defendants' Border Barriers Harm
California's and New Mexico's Environment, Wildlife, and Natural
Resources
The California and New Mexico Projects will also irreparably harm protected wildlife and
other natural resources within those states. The Projects pose a threat of demonstrable harm to
26
Pis.' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
1
numerous rare and special-status species that warrants issuance of injunctive relief. Nat'! Wildlife
2
Fed'n v. Burlington N R.R., 23 F.3d 1508,1512 n. 8 (9th Cir. 1994) ("[w]e are not saying that a
3
threat of extinction to the species is required before an injunction may issue"); see also Nat 'l
4
Wildlife Fed'n v. Nat'! Marine Fisheries Serv., 886 F.3d 803, 818-19 (9th Cir. 2018) (holding
5
"extinction-level threat" not required to show irreparable harm to protected species).
6
·7
a.
Harms from the California Projects
The California Projects will undermine the recovery of several federally listed endangered
8
species and California Species of Special Concern, as well as damage those species' habitat. Both
9
San Diego Project 4 and Project 11 fall within the California Floristic Province, which is one of
10
the world's biodiversity hotspots, and because the United States' borderlands are often the
11
northernmost outpost for plants otherwise restricted to Mexican portions of the province, the San
12
Diego area contains many plants not found elsewhere in the United States. 2808 Env. App'x Ex. 6
13
(Vanderplank Deel. ,r,r 9-10). At least 80% of habitat for plants and animals in this region has
14
been significantly impacted. Id. at ,r 9; 2808 Env. App'x Ex. 1 (Clark Deel. ,r,r 23, 27). San Diego
15
Project 4 includes part of the Otay Mountain Wilderness, a federal Wilderness Area that is home
16
to at least twenty sensitive plant and animal species including the federally endangered Quino
17
Checkerspot Butterfly. Id. Ex. 6 (Vanderplank Deel. ,r,r 12-13). And it cuts through the butterfly's
18
critical habitat as designated under the federal Endangered Species Act (ESA). Id. Ex. 1 (Clark
19
Deel. ,r,r 13, 15, 17).
20
The Quino Checkerspot Butterfly has been documented to occur in and immediately
21
adjacent to the San Diego Project 4 area, and lives only in a few locations in Riverside and San
22
Diego counties. Id. ,r,r 15-16. The butterfly is found in open scrub and grassland habitat that
23 · support its primary host plant, dwarf plantain, where it lays its eggs. Id. ,r 15. The caterpillars that
24
hatch from these eggs can only feed on this host plant. Id. Because they are so dependent on the
25 · availability of this plant, if dry conditions occur and the plant is not available, the caterpillars
26
27
28
enter a biological stasis or "diapause," where they bury themselves in leaf litter-sometimes for
· years-until suitable conditions arrive again Id. The Quino Checkerspot Butterfly uses this
strategy to persist in habitats, such as southern California, that are prone to extended droughts. Id.
27
Pls.' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
1
Construction of San Diego Project 4, including the road improvements that Plaintiffs understand
2
are part of the project, will irreparably harm the Quino Checkerspot Butterfly population and its
3
critical habitat in Otay Mesa by crushing and burying diapausing larvae, removing the butterfly's
4
host plant, and destroying the plant's seed bank in the project area. Id. ,r 17.·
5
San Diego Project 4 will also irreparably harm the federally threatened Coastal California
6
Gnatcatcher and its habitat. Id. ,r,r 18-20. The Gnatcatcher is a bird that only lives in coastal
7
southern California in areas of open coastal. sage scrub vegetation, and it forages for insects (its
8
sole food) on plant species such as coastal sagebrush, which currently grows in the project area.
9
Id. California Gnatcatchers have been documented within the project footprint, and likely remain
10
there based on its suitable habitat. Id. San Diego Project 4 will destroy essential habitat for
11
numerous Gnatcatcher pairs due to the vegetation clearance required to construct both the primary
12
and secondary fences. Id; ,r 20. Additional roads needed to access the project site will necessitate
13
significant ~ut and fill activities, as were required for previous border fence projects that
14
Defendants have undertaken in the steep terrain in and around Otay Mountain where San Diego
15
Project 4 is being constructed. Id. These destructive construction actions will result in a major
16
displacement of California Gnatcatchers into already diminished and limited habitat areas that are
17
now occupied by other Gnatcatcher pairs. Id. The affected pairs will either be required to move or
18
challenge adjacent pairs for available territory, and the result will be a substantial reduction of the
19
Gnatcatcher population in the San Diego Project 4 area, with irreparable harm to a threatened
20
species that is already facing significant stress from habitat destruction. Id.
21
San Diego Project 4 will also harm the Western Burrowing Owl, which the U.S. Fish and
\
22
Wildlife Service has designated as a Bird of Conservation Concern. The owl is also a Species of
23
Special Concern under California law, and habitat loss and modification is a key threat to the
24
species' survival. Id. ,r,r 22-26. Recent surveys show that burrowing owls are present in and
25
around the project site and that the area is the last stronghold for the owl in San Diego County.
26
This species lives underground in burrows. Project construction with its extensive vegetation
27
clearing, trenching and roadwork will destroy owl habitat and possibly kill owls directly, or
28
expose them to increased mortality by flushing them from their burrows where they face
28
Pls.' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
1
increased predation as they search for new burrows. Owl chicks in particular are at risk.
2
Construction of San Diego Project 4 will hasten the decline of this last breeding population of
3
burrowing owls in coastal southern California. Id.
4
Additional impacts from San Diego Project 4 include harms to vernal-pool habitat and
5
species, many of which (such as the San Diego Fairy Shrimp) are endangered. 2808 Env. App'x
6
Ex. 1 (Clark Deel. ,r,r 27-33); Ex. 3 (Gibson Deel. ,r 16). Project construction involves roadwork
7
that will likely fill the pools, and will irreparably harm vernal-pool species and reduce their
8
potential for recovery under the ESA as upwards of 90% of vernal-pool habitat has already been
9
destroyed in Southern California. Id. Ex. 1 (Clark ,r,r 27, 33). Rare plants such as the Tecate
10
Cypress are at risk as well, and will likely be killed during construction. Id. Ex. 6 (Vanderplank
11
Deel. ,r,r 21-24).
12
Finally, San Diego Project 11 and Yuma Project 6 will harm numerous wildlife species that
13
are protected under both federal and state law including the federally endangered Quino
14
Checkerspot Butter.fly, Yuma Ridgeway's Rail, Southwestern Willow Flycatcher, and Western
15
Yellow-billed Cuckoo, and California Species of Special Concern such as the Flat-tailed Horned
16
Lizard and Sonoran mud turtle. 2808 Env. App'x Ex. 1 (Clark Deel. ,r,r 34-39).
17
b.
Harms from the New Mexico Projects
18
The New Mexico Projects will be built primarily in the "Bootheel" of New Mexico in the
19
Animas and Playas Valleys. 2808 Env. App'x Ex. 4 (Nagano Deel. ,r,r 15-16); Ex. 5 (Traphagen
20
Deel. ,r,r 13, 16). This area in Southwestern New Mexico is a "pinch point for ecological
21
diversity, migration, and dispersal in the western North American continent." Id. Ex. 5
22
(Traphagen ,r 13). The Bootheel is extremely high in both.plant and wildlife diversity and harbors
23
numerous biotic communities and also the Peloncillo Mountains-the only range that directly
24
connects Mexico's Sierra Madres with the Rocky Mountains in the U.S. Id. ,r,r 13-15. The 35-
25
miles of bollard-style pedestrian fencing planned for the New Mexico Projects will create
26
fragmented habitat and block wildlife corridors for numerous protected species such as the white-
27
sided jackrabbit and the jaguar. Id. Ex. 4 (Nagano Deel. ,r,r 15-20); Ex. 5 (Traphagen ,r,r 16-24);
28
"List of Proposed Border Barrier Projects."
29
Pls.' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
1
For example, the Animas Valley is home to an estimated 61 white-sided jackrabbits, a rare
2
and threatened species under New Mexico law. 2808 Env. App'x Ex. 5 (Traphagen Deel. ,r
3
16). The jackrabbit's U.S. habitat is limited to the Animas Valley, and the current population
4
there is estimated to be only 61 hares. Id. The species' survival in the United States depends upon
5
its ability to access habitat and other white-sided jackrabbits in Mexico. Id. ,r,r 16-19. It is already
6
in decline due in part to actions by Border Patrol (including roadkill incidents and the
7
introduction of exotic grasses), and the population will decrease even further due to El Paso
8
Projects 2 and 8 since they will block the jackrabbits' only route to habitat in Mexico. Id. Given
9
the pressures already affecting the species, if the New Mexico Projects are constructed the white-
10
11
sidedjackrabbit's prospects for survival in the United States are "dismal." Id. ,r 18.
The New Mexico Projects will also bisect the intracontinental corridor for the jaguar, a rare
12
species that is federally endangered. Id. ,r,r 20-22. The New Mexico Projects will create an
13
impenetra~le barrier adjacent to the designated Critical Habitat for this endangered species. Id.
14
Jaguars have been documented in the United States on conservation lands that directly adjoin the
15
location of El Paso Project 2 in the Animas Valley. Id. ,r 20~ and Exs. A-B, E. These border
16
barriers will "almost certainly ... significantly contribute to the elimination of this imperiled
17
species in the United States." Id. Ex. 4 (Nagano Deel. ,r 20).
18
19
20
3.
Diversion of Funds from Military Construction Projects in Colorado,
Hawaii, Maryland, New Mexico, New York, Oregon, Virginia, and
Wisconsin Causes those States Financial Harm
Defendants' actions will subject Colorado, Hawaii, Maryland, New Mexico, New York,
21
Oregon, Virginia, and Wisconsin to serious financial harms that also should be weighed by this
22
Court alongside the relevant non-economic harms. 8 See, e.g., Village ofArlington Heights v.
23
Metropolitan Housing Develop. Corp., 429 U.S. 252.(1977) (private developer of low-income
24
housing demonstrated economic injury and potential homeowner demonstrated noneconomic
25
injury in the form of racial discrimination in challenge to ordinance banning low-income
26
27
28
8 California does not assert irreparable financial harm in this motion. However, as discussed
above, California's irreparable harm arises from the serious environmental and sovereignty
injuries caused by Defendants' actions, and Defendants' defunding of the Channel Islands project
will also have detrimental public safety impacts, contrary to the public interest.
30
Pls.' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
1
housing); Texas v. United States, 809 F.3d 134, 152-53 (5th Cir. 2015) (recognizing financial
2
harms to states by federal actions that cause "a major effect on the states' fiscs" and harms to
3
state sovereignty by "federal interference with the enforcement of state law").
4
Defendants intend to divert all funding from 17 separate military construction projects
5
within the borders of the States, totaling $493 million in funds approved and allocated by
6
Congress. Defunded MILCON List. That construction would have brought $366 million in direct
7
and inter-state benefits to the economies of Colorado, Hawaii, Maryland, New Mexico, New
8
York, Oregon, Virginia, and Wisconsin even when offsetting the economic benefits that would
9
result from the border barrier construction occurring within the boundaries of New Mexico.
10
Reaser Deel. ,r 18.
11
This loss of economic activity will have a substantial, direct effect on the tax revenues of
12
state and local governments of Colorado, Hawaii, Maryland, New Mexico, New York, Oregon,
13
Virginia, and Wisconsin, irreparably harming them. See, e.g., Wyoming v. Oklahoma, 502 U.S.
14
437, 447 (1992) (finding standing for Wyoming arising from its direct injury from the loss of
15
specific tax revenues); City ofSausalito v. O'Neill, 386 F.3d 1186, 1~94 (9th Cir. 2004)
16
(recognizing financial harm from, inter alia, decreased tax revenue caused by federal plan to
17
·develop and rehabilitate a former military base "due to impaired vehicular movement and
18
commerce," even where harm could not be quantified); City of Oakland v. Lynch, 798 F.3d 1159,
19
1164 (9th Cir. 2015) (recognizing that "[a]n expected loss of tax revenue" constituted a harm).
20
Specifically, Defendants' actions will reduce the tax revenues of these states and their
21
municipalities (including taxes on personal income, retail sales, corporate profits, and other
22.
sources) by over $36 million. Reaser Deel. ,r 20. Such financial effects of federal actions
23
constitute cognizable harms that will go unremedied without an injunction. See Alabama v. U.S.
24
Army Corps ofEngineers, 424 F.3d 1117, 1130 (11th Cir. 2005) (downstream environmental and
25
economic effects of federal policies are cognizable harms).
26
This Court recently affirmed these principles. Facing a state challenge to federal actions
27
that would "lead to women losing employer-sponsored contraceptive coverage, which [would]
28
then result in economic harm to the states as these women turn to state-based programs or
31
Pls.' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
1
programs reimbursed by the state," this Court recognized the financial harms of state plaintiffs.
2
California v. Health &Human Servs., 351 F.Supp.3d 1267, 1281-82 (N.D. Cal. 2019) (citations
3
omitted); see also California v. Azar, 911 F.3d 558, 572 (9th Cir. 2018) (finding that the plaintiff
4
states "need not have already suffered economic harm" and that there "is also no requirement that
5
the economic harm be of a certain magnitude").
6
Here, the states' financial harm is direct, quantifiable, and inevitable. By diverting funds
7
from military construction projects within the States' borders, Defendants will cause lost sales for
8
contractors and subcontractors for the projects, various firms in the supply chains, and companies
9
selling goods and services to individuals hired to work directly on the projects or at some point in
10
the supply chain. Reaser Deel. ,r 18. All that lost business activity would create tax revenues for
11
the states that can be quantifiably calculated now. Id. ,r,r 18-20. The uncompensated loss of those
12
revenues is a substantial harm that further merits injunctive relief.
13
14
15
B.
The Balance of Hardships and Public Interest Favor Granting a
Permanent Injunction
When this Court previously enjoined Defendants' unlawful diversions of funds from the
16
purposes for which Congress appropriated them, it did not explicitly evaluate the State plaintiffs'
17
unique interests. Protecting California's and New Mexico's sovereign interests here is an
18
especially important factor for this Court's consideration, because, as the Supreme Court has
19
held, "[s]tate sovereignty is not just an end in itself: Rather, federalism secures to citizens the
20
liberties that derive from the diffusion of sovereign power." New York v. United States, 505 U.S.
21
144, 181 (1992) (quotation omitted). Barring an injunction, Defendants' actions will seriously
22
harm both the sovereign interests and natural environments of California and New Mexico. They
23
will also cost the States millions in specifically-identified lost tax revenues and, in some
24
circumstances, expose States to public health and safety risks as described above.
25
Defendants' side of the balance does not outweigh these harms to State interests and the
26
public. Because, as shown above, Defendants cannot lawfully use the funds at issue for border
27
barrier construction, they have no cognizable interest in using the funds for such purposes.
28
Further, Defendants have not shown how border barriers will substantially advance their interests,
32
Pls.' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
1
2
3
4
even though the planned construction will certainly harm the interests qf the States and the public.
1.
Defendants' Alleged Harms Are Unsubstantiated and Do Not
Outweigh the Harms to the States and the Public Interest ·
a.
Defendants Suffer No Cognizable Harm by This Court's
Halting of an Unlawful Practice
5
There is no cognizable harm to the federal government from the requested injunction
6
because the federal government "cannot suffer harm from an injunction that merely ends an
7
unlawful practice." Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013); see also Salinger
8
v. Co/ting, 607 F.3d 68, 81 (2d Cir. 2010) (explaining that when conducting the balancing
9
analysis "the relevant harm is the harm that ... occurs to the parties' legal interests") (emphasis
10
added). In Rodriguez, the Ninth Circuit evaluated the propriety of a preliminary injunction against
11
the federal government's extended detention of undocumented immigrants. 715 F.3d at 1131. In
12
upholding the lower court's preliminary injunction, Rodriguez explained that the government
13
would not be harmed by an injunction prohibiting the government from exercising its detention
14
authority in an unconstitutional manner, even though the statutes at issue-allowing mandatory
15
detention of certain classes of illegal immigrants-were "not constitutionally impermissible per
16
se." Id. at 1137-38, 1142, 1445. Because Defendants are unlawfully utilizing§ 2808 for
17
construction that is not authorized under that law, the same is true here.
18
b.
Defendants' Alleged Harms Are Speculative and Unsupported
19
Defendants will likely assert that they would suffer irreparable harm if enjoined from using
20
the disputed funds to build the border barriers. But these harms are insignificant, speculative, and
21
not supported by credible evidence. See, e.g., Hernandez v. Sessions, 872 F.3d 976,996 (9th Cir.
22
2017) (balancing the harms requires consideratic;m only of consequences that are "supported by
23
evidence") (citation omitted); Golden Gate Rest. 1tss 'n v. City & Cty. ofSan Francisco, 512 F.3d
24
1112, 1126 (9th Cir. 2008) (holding that "highly speculative" harms are not cognizable). First,
25
any claims by Defendants of irreparable harm are severely undercut by the nearly seven-month
26
delay between President Trump's declaration of a national emergency and DoD's decision to
27
build border barriers under § 2808. See, e.g., Oakland Tribune, Inc. v. Chronicle Puhl 'g Co., 762
28
F.2d 1374, 1377 (9th Cir. 1985) ("long delay ... implies a lack of urgency and irreparable harm").
33
Pls.' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
1
Second, Defendants have asserted that a border wall will support DoD's mission to support
2
DHS. See, e.g., AR 9, 43, 53, 55-56, 120-21. However, these assertions ignore basic facts about
3
the historical effectiveness of border walls and the character of the current population of migrants.
4
The characteristics of individuals who are apprehended at the southwest border have changed
5
significantly, from predominantly adult male Mexican nationals entering the United States alone,
6
to increasing numbers of families from Central America. 2808 RJN Ex. 21. Many of these
7
migrant families are requesting asylum upon entry into the United States. Id. Thus, a border wall
8
designed to prevent migrants from entering the United States undetected and fleeing into the
9
interior will not have an impact on the migration that is ostensibly creating the emergency at the
10
border. See Emergency Declaration ("In particular, recent years have seen sharp increases in the
11
number of family units entering and seeking entry to the United States.").
12
Third, President Trump himself has acknowledged that he "didn't need to" take the
13
extraordinary steps to divert funding for border wall construction, but he just would "rather do it
14
faster" than our system of government allowed. PI RJN Ex. 50. The President also acknowledged
15
that Congress has provided more than enough funding for homeland security without the wall,
16
undercutting any claimed need for these diversions of funds. Id.
17
2.
18
The Public Interest and the States' Harms Justify an Injunction
Protecting California's and New Mexico's sovereignty and their ability to enforce their
\
19
environmental protection laws shields the public interest from the Defendants' unlawful and
20
unconstitutional usurpation of state authority. See New Motor Vehicle Bd., 434 U.S. at 1351 ("the
21
public interest ... is infringed by the very fact that the State is prevented from engaging in
22
investigation and examination" pursuant to its own duly enacted state laws); E. Bay Sanctuary
23
Covenant v. Trump, 932 F.3d 742, 779 (9th Cir. 2018) ("the public also has an interest in ensuring
24
that statutes enacted by their representatives are not imperiled by executive fiat") (internal
25
citations omitted); see also Cal. Gov't Code§ 12600 ("It is in the public interest to provide the
26
people of the State of California ... with adequate remedy to protect the natural resources of the
27
state of California from pollution, impairment or destruction."); N.M. Const. art. XX§ 21 ("The
28
protection of the state's beautiful and healthful environment is ... of fundamental importance to
34
Pls.' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
I
I
1
the public interest."). The strong public interest in preserving the States' sovereignty heavily
2
favors an injunction. See New York, 505 U.S. at 162-63.
3
Separately, the Supreme Court has recognized that, because environmental and natural
4
resource harms "can seldom be adequately remedied by money damages" and are often
5
irreparable, "the balance of harms will usually favor the issuance of an injunction to protect the
6
environment." Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531,545 (1987). Consequently,
7
protecting California's and New Mexico's interests in their environm~nt merits injunctive relief. ·
8
9
Further, as discussed above, the $36 million in tax revenue that would be lost by Colorado,
Hawaii, Maryland, New Mexico, New York, Oregon, Virginia, and Wisconsin as a result of
10
Defendants' cancellation of military construction projects within their borders militates in favor
11
of an injunction. Reaser Deel. ,r 20. Moreover, the loss of the benefits of the $789 million in
12
direct and inter-state economic activity that would have been conferred upon the residents of the
13
states but for the funds diversion significantly harms the public interest. Id. ,r 18.
14
Finally, the cancellation of those projects will cause a myriad of non-economic harms. DoD
15
itself has detailed the detrimental public health and safety harms that would arise from these
16
defunded military projects not moving forward such as woefully inadequate security at military
17
bases, improperly contained hazardous materials, and a lack of enhanced aerial firefighting
18
training. RJN Exs. 2-19; Green Deel. ,r,r 6-9, 18-25. Cancelling such projects will place
19
servicemembers and the nearby public at significant risk. In short, Defendants' harms are neither
20
legally cognizable nor substantiated and they are outweighed by the States' harms and the harms
21
to the public interest.
22
CONCLUSION.
23
For the foregoing reasons, the States request that the Court grant their motion for partial
24
summary judgment in full by granting the States declaratory relief and enjoining Defendants
25
from: (1) defunding military construction projects located within the States, (2) constructing
26
border barrier projects in California and New Mexico under § 2808, and (3) constructing border
27
barrier projects in California and New Mexico under § 284 until Defendants comply with NEPA.
28
35
Pls.' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
1
Dated: October 11, 2019
Respectfully submitted,
2
XAVIER BECERRA
3
Attorney General of California
ROBERT W. BYRNE
4
SALLY MAGNANI
MICHAEL L. NEWMAN
Senior Assistant Attorneys General
5
MICHAEL P. CAYABAN
CHRISTINE CHUANG
EDWARD H. OCHOA
6
Supervising Deputy Attorneys General
7
LsLHeather C. Leslie
8
HEATHER C. LESLIE
BRIAN J. BILFORD
9
10
SPARSH S. KliANDESHI
LEE I. SHERMAN
11
JANELLE M. SMITH
JAMES F. ZAHRADKA II
12
Deputy Attorneys General
Attorneys for Plaintiff State of California
13
PHILIP J. WEISER
CIARE E. CONNORS
Attorney General of Hawaii
ROBERT T. NAKATSUJI (appearance pro
hac vice)
Deputy Solicitor General
Attorneys for Plaintiff State ofHawaii
14 Attorney General of Colorado
ERIC R. OLSON (appearance pro hac vice)
15 Solicitor General
16
17
18
19
Attorneys for Plaintiff State of Colorado
BRIAN E. FROSH
Attorney General of Maryland
JEFFREY P. DUNLAP (appearance pro hac vice)
Assistant Attorney General
Attorneys for Plaintiff State of Maryland
20
21
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
Civil Rights Bureau Chief
Attorneys for Plaintiff State ofNew Mexico
22
23
24
25
. I
26
27
28
36
Pls.' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
-- l
i
1 LETITIA JAMES
2
3
4
5
6
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ELLEN ROSENBLUM
Attorney General of New York
Attorney General of Oregon
MATTHEW COIANGELO (appearance pro hac J. NICOLE DEFEVER
vice)
Senior Assistant Attorney General
Chief Counsel for Federal Initiatives
Attorneys for Plaintiff State of Oregon
STEVENC. WU
Deputy Solicitor General
ERIC R. HAREN
Special Counsel
GAVIN MCCABE
Special Assistant Attorney General
AMANDA MEYER
Assistant Attorney General
Attorneys for Plaintiff State ofNew York
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MARK R. HERRING
JOSHUA L. KAUL
Attorney General of Wisconsin
GABE JOHNSON-KARP (appearance pro
9 Attorney General of Virginia
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TOBY J. HEYTENS
Solicitor General, Counsel of Record
hac vice)
MICHELLES.KALLEN
Assistant Attorney· General
MARTINE E. CICCONI
Attorneys for Plaintiff State of Wisconsin
Deputy Solicitors General
JESSICA M. SAMUELS
Assistant Solicitor General
ZACHARY R. GLUBIAK (pro hac vice pending)
Attorney
14 Attorneys .for the Commonwealth of Virginia
·'\
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Pls.' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
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ATTESTATION OF SIGNATURES
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I, Heather C. Leslie, hereby attest, pursuant to Local Civil Rule 5-l(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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Isl Heather C. Leslie
HEATIIER C. LESUE
Deputy Attorney General
Attorney for Plaintiff
State of California
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Pls.' Notice of Mot. and Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)
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