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)

1
2
3
4

5
6

7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

OAKLAND DIVISION

11
12

STATE OF CALIFORNIA et al.;

13

[PROPOSED] ORDER GRANTING
PLAINTIFF STATES OF CALIFORNIA,
COLORADO, HAWAll, MARYLAND,
v.
NEW MEXICO, NEW YORK, OREGON,
DONALD J. TRUMP, in his official capacity VIRGINIA, AND WISCONSIN'S
as President of the United States of America MOTION FOR PARTIAL SUMMARY
JUDGMENT REGARDING SECTION
et al.;
2808 AND NEPA

14

15
16
17

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

Defendants.

18
19
20

-----------------'

November 20, 2019
10:00 am
Honorable Haywood S. Gilliam,
Jr.
None Set
Trial Date:
Action Filed: February 18, 2019

Date:
Time:
Judge:

21
22
23
24

25
26
27
28
[Proposed] Order Granting Plfs.' Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)

-

·-

1

On October 11, 2019, Plaintiff States of California, Colorado, Hawaii, Maryland, New

2

Mexico, New York, Oregon, Virginia, and Wisconsin (the States) filed a Motion for Partial

3

Summary Judgment (Motion) regarding Defendants' use of 10 U.S.C. § 2808 for the construction

4

of barrier projects on the border between the United States and Mexico and Defendants' violation

5

of the National Environmental Policy Act with respect to barrier projects funded under 10 U.S.C.

6

§ 2808 and 10 U.S.C. § 284. On October 25, 2019, the Defendants filed a cross-motion for

7

summary judgment (Defendants' Cross-Motion). The Court has considered the States' Motion

8

and documents filed therewith, Defendants' Cross-Motion and documents filed therewith, and all

9

of the papers on file in this action, and hereby GRANTS the States' Motion, DENIES

10

Defendants' Cross-Motion, and enters judgment in the States' favor as to each of their claims for

11

relief on the grounds that the undisputed evidence shows that:

12

1. On September 3, 2019, the Secretary of Defense authorized the Department of the

13

Army to spend $3.6 billion originally intended for military construction projects on 11

14

border barrier projects under 10 U.S.C.

15

defunded projects within the States as listed below:

/

16

State
California

17
18

Colorado
Hawaii

19
20

Maryland

Location Title
Channel Islands
ANGS
Peterson AFB
Joint Base Pearl
Harbor-Hickam
Kaneohe Bay
Fort Meade
Joint Base Andrews

21

22

New Mexico

23

New York

24

Oreg:on
Virginia

25
26
27

Wisconsin

Holloman AFB
White Sands
U.S. Military
Academy
Klamath Falls IAP
Joint Base LangleyEustis
Norfolk
Portsmouth
Truax Field

~

2808. The States' Motion addresses 17

Line Item Title
Construct C-130J Flight Simulator
Facility
Space Control Facility
Consolidated Training Facility

Amount
$8,000,000

Security Improvements Mokapu Gate
Cantonment Area Roads
PAR Relocate Haz Cargo Pad and EOD
Range
Child Development Center
MQ-9 FTU Ops Facility
Information Svstems Facility
Emrineering Center
Parking Structure
Construct Indoor Range
Construct Cyber Ops Facility

$26,492.000
$16 500.000
$37,000,000

Replace Hazardous Materials Warehouse
Replace Hazardous Materials Warehouse
Ships Maintenance Facility
Construct Small Arms Range

$18.500.000
$22.500.000
$26.120.000
$8.000.000

$8.000.000
$5,500,000

$13 000.000
$85.000.000
$40.000.000
$95.000.000
$65.000 000
$8.000,000
$10,000,000

28

1
[Proposed] Order Granting Plfs.' Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)

1

The States' motion also concerns the construction of seven border barrier projects in

2

California and New Mexico. These include: San Diego Project 4, San Diego Project 11,

3

El Centro Project 5, El Centro Project 9,'Yuma Project 6, El Paso Project 2, and El Paso

4

Project 8. Defendants' actions with respect to these 17 defunded projects and 7 border

5

barrier projects are referred to herein as "Defendants' 2808 Actions."

6

2. On March 25 and May 9, 2019, citing 10 u.s;c. section 284, DOD committed to the

7

construction of several border barrier projects, including El Paso Project 1 in New

8

Mexico and El Centro Project 1 in California. These border barrier projects are referred

9

to herein as "Defendants' 284 Actions."

10
11
12
13
14
15
16
17

3. Defendants' 2808 Actions are ultra vires and violate the Administrative Procedure Act
because they exceed congressional authority.
4. Defendants' 2808 Actions violate the Administrative Procedure Act because they are
arbitrary and capricious.
5. Defendants' 2808 Actions violate the United States Constitution's separation of powers
principles.
6. Defendants' 2808 Actions violate the United States Constitution's Appropriations
Clause.

18

7. Defendants' 2808 Actions violate the United States Constitution's Presentment Clause.

19

8. Defendants' 2808 Actions and Defendants 284 Actions violate the National

20
21
22

Environmental Policy Act.
· Having entered judgment in favor of the States and against Defendants on the above, the
Court hereby ORDERS the following relief:

23

DECLARATION

24

The Court finds declaratory relief under 28 U.S.C. § 2201 appropriate in this case. It is

25

hereby DECLARED that Defendants' 2808 Actions are unlawful and unconstitutional because

26

they: (i) exceed the congressional authority conferred to the Executive Branch in violation of the

27

Administrative Procedure Act and are ultra vires; (ii) violate the Administrative Procedure Act

28

because they are arbitrary and capricious; (iii) violate the United States Constitution's separation
2
[Proposed] Order Granting Plfs.' Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)

1

of powers principles; (iv) violate the United States Constitution's Appropriations Clause; and (v)

2

violate the United States Constitution's Presentment Clause. The Court further declares that

3

Defendants' 2808 and 284 Actions violate the National Environmental Policy Act.

PERMANENT INJUNCTION

4

5

The Court also finds that each of the necessary elements for issuing a permanent injunction

6

are met. In particular, the Court finds that the States have succeeded on the merits of their claims

7

and that absent an injunction, the States would suffer irreparable injury; the balance of equities.

8

favor the States; and the requested relief is in the public interest. Pursuant to Federal Rule of Civil

9

Procedure 65, it is now ORDERED that Defendants ARE HEREBY RESTRAINED AND

10

.11

ENJOINED from committing, performing, directly or indirectly, the following acts:
1. Diverting any funding or resources from the 17 military construction projects in the

12

States identified in the chart above under 10 U.S.C. § 2808 toward the construction of

13

any barrier or border-related infrastructure and/or project along the Unite~ States-

14

Mexico border.

15

2. Obligating any funding, including but not limited to, the awarding of and/or entering

16

into any contracts, toward the construction of any border barrier or border-related

17

infrastructure and/or project along in California or New Mexico through the use of any

18

funds diverted under 10 U.S.C. § 2808.

19

3. Taking any further action related to the construction of any barrier along the United

20

States-Mexico border in California or New Mexico under 10 U.S.C. § 2808 and 10

21

U.S.C. § 28~ unless and until Defendants comply with the National Environmental

22

Policy Act, 42 U.S.C. sections 4321-4370m-12.

23
24

IT IS SO ORDERED.

25

Dated: - - - - - - - -

26

THE HONORABLE HAYWOOD S. GILLIAM, JR.

27
28
3
[Proposed] Order Granting Plfs.' Mot. for Partial Summ. J. re Section 2808 and NEPA (4:19-cv-00872-HSG)