State of California et al v. Trump et al

Filing 236

MOTION for Partial Summary Judgment Regarding Border Barrier Projects Undertaken Pursuant to 10 U.S.C. § 2808 and Opposition to Plaintiffs' Motion for Partial Summary Judgment filed by Department of Defense, David Bernhardt, Mark T. Esper, Kevin K. McAleenan, Ryan D. McCarthy, Steven T. Mnuchin, Richard V. Spencer, Donald J. Trump, U.S. Department of Homeland Security, U.S. Department of the Interior, U.S. Department of the Treasury, United States of America, Heather Wilson. 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 11/1/2019. Replies due by 11/8/2019. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Proposed Order)(Warden, Andrew) (Filed on 10/25/2019)

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JAMES M. BURNHAM
Deputy Assistant Attorney General
ALEXANDER K. HAAS
Director, Federal Programs Branch
ANTHONY J. COPPOLINO
Deputy Director, Federal Programs Branch
ANDREW I. WARDEN (IN #23840-49)
Senior Trial Counsel
KATHRYN C. DAVIS
MICHAEL J. GERARDI
LESLIE COOPER VIGEN
RACHAEL WESTMORELAND
Trial Attorneys
U.S. Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, NW
Washington, D.C. 20530
Tel.: [phone]
Fax: [phone]
Attorneys for Defendants

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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

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No. 4:19-cv-00872-HSG
STATE OF CALIFORNIA, et al.,
Plaintiffs,
v.
DONALD J. TRUMP, et al.,
Defendants.

DEFENDANTS’ NOTICE OF
MOTION AND MOTION FOR
PARTIAL SUMMARY
JUDGMENT REGARDING
BORDER BARRIER PROJECTS
UNDERTAKEN PURSUANT TO
10 U.S.C. § 2808; MEMORANDUM
OF POINTS AND AUTHORITIES
IN SUPPORT THEREOF AND IN
OPPOSITION TO PLAINTIFFS’
MOTION FOR PARTIAL
SUMMARY JUDGMENT
Hearing Date: November 20, 2019
Time: 10 a.m.
Place: Oakland Courthouse
Courtroom 2, 4th Floor

State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG
Defs.’ Motion for Partial Summary Judgment re: 2808 and Opp. to Pls.’ Motion for Summary Judgment
i

TABLE OF CONTENTS

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NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT ....................1
MEMORANDUM OF POINTS AND AUTHORITIES .........................................................................1

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INTRODUCTION ...........................................................................................................................................1

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BACKGROUND ..............................................................................................................................................3

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I.

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II. The President’s Proclamation Declaring a National Emergency at the Southern
Border......................................................................................................................................................5

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III. 10 U.S.C. § 2808.....................................................................................................................................6

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DoD’s Support for DHS’ Efforts to Secure the Southern Border ................................................3

IV. The Secretary of Defense’s Decision to Undertake 11 Border Barrier Military Construction
Projects Pursuant to § 2808 .................................................................................................................7
LEGAL STANDARD ......................................................................................................................................9
ARGUMENT .....................................................................................................................................................9
I.

Plaintiffs Are Outside the Zone of Interests Protected by § 2808 and the CAA ........................9

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II. Plaintiffs Lack an Implied Equitable Cause of Action Under the Constitution ....................... 11

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III. The § 2808 Border Barriers Are Military Construction Projects ................................................. 12

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IV. The Border Barrier Projects are Necessary to Support the Use of the Armed Forces ............ 15

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V. DoD’s Use of § 2808 Authority Was Not Arbitrary and Capricious.......................................... 18

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VI. DoD’s Use of § 2808 Does Not Violate the Constitution ........................................................... 21

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VII. NEPA Does Not Apply to the § 284 or § 2808 Border Barrier Projects ................................. 24

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VIII. The States Have Not Met The Requirements For A Permanent Injunction .......................... 27

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A. The States Have Not Established Irreparable Injury ........................................................... 27

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1.

The States Have Not Established Irreparable Injury to the Environment ................. 28

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2.

Loss of Tax Revenue is Not An Irreparable Injury ........................................................ 31

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B. The Balance of Equities and Publice Interests Weigh Against Injunctive Relief ............. 33
CONCLUSION .............................................................................................................................................. 35
State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG – Defendants’ Opp. to Prelim. Inj.
i

TABLE OF AUTHORITIES

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CASES
Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez,
458 U.S. 592 (1982) .................................................................................................................................... 33
Am. Fed’n of Gov’t Emps., Local 3295 v. Fed. Labor Relations Auth.,
46 F.3d 73 (D.C. Cir. 1995) ....................................................................................................................... 14
AMOCO Prod. Co. v. Village of Gambell,
480 U.S. 531 (1987) .................................................................................................................................... 28
Arias v. DynCorp,
752 F.3d 1011 (D.C. Cir. 2014) ................................................................................................................ 32
Armstrong v. Exceptional Child Ctr., Inc.,
135 S. Ct. 1378 (2015) ................................................................................................................................ 12
Boston Stock Exch. v. State Tax Comm’n,
429 U.S. 318 (1977) .................................................................................................................................... 10
Brady v. FERC,
416 F.3d 1 (D.C. Cir. 2005) ....................................................................................................................... 20
Building & Const. Trades Dep’t., AFL-CIO v. Martin,
961 F.2d 269 (D.C. Cir. 1992) .................................................................................................................. 20
California v. Azar,
911 F.3d 558 (9th Cir. 2018) ..................................................................................................................... 33
California v. Trump,
379 F. Supp. 3d 928 (N.D. Cal. 2019) ..................................................................... 10, 12, 13, 22, 25, 28
California v. Trump,
2019 WL 2715421, at *4 & n.9 (N.D. Cal. June 28, 2019) ................................................................... 29
Calvillo Manriquez v. Devos,
345 F. Supp. 3d 1077 (N.D. Cal. 2018) ................................................................................................... 33
Chappell v. Wallace,
462 U.S. 296 (1983) .................................................................................................................................... 16
Cisneros v. Alpine Ridge Grp.,
508 U.S. 10 (1993) ................................................................................................................................ 11, 25

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State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG
Defs.’ Motion for Partial Summary Judgment re: 2808 and Opp. to Pls.’ Motion for Summary Judgment
ii

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Clarke v. Securities Indus. Ass’n,
479 U.S. 388 (1987) .................................................................................................................................... 10
Clinton v. City of New York,
524 U.S. 417 (1998) .................................................................................................................................... 24
Crickon v. Thomas,
579 F.3d 978 (9th Cir. 2009) ..................................................................................................................... 24
Dalton v. Spector,
511 U.S. 462 (1994) .................................................................................................................................... 21
Dep’t of Navy v. Egan,
484 U.S. 518 (1988) .................................................................................................................................... 16
Dist. No. 1, Pac. Coast Dist., Marine Eng’rs’ Beneficial Ass’n v. Mar. Admin.,
215 F.3d 37 (D.C. Cir. 2000)..................................................................................................................... 20
Donovan v. Carolina Stalite Co.,
734 F.2d 1547 (D.C. Cir. 1984) ................................................................................................................ 20
eBay Inc. v. MercExchange, LLC.,
547 U.S. 388 (2006) .................................................................................................................................... 27
El Paso Cty. v. Trump,
No. EP-19-CV-66-DB, 2019 WL 5092396 (W.D. Tex. Oct. 11, 2019) ............................................. 23
Flint Ridge Dev. Co. v. Scenic Rivers Assoc.,
426 U.S. 776 (1976) .................................................................................................................................... 26
Gilligan v. Morgan,
413 U.S. 1 (1973) .................................................................................................................................. 16, 18
Goldman v. Weinberger,
475 U.S. 503 (1986) ........................................................................................................................ 15, 16. 34
Greater Yellowstone Coalition, Inc. v. Servheen,
665 F.3d 1015 (9th Cir. 2011) ............................................................................................................. 19, 20
Grupo Mexicano De Desarrollo SA v. All. Bond Fund, Inc.,
527 U.S. 308 (1999) .................................................................................................................................... 12
Harrington v. Schlesinger,
528 F.2d 455 (4th Cir. 1975) ..................................................................................................................... 23
Heckler v. Chaney,
470 U.S. 821 (1985) .................................................................................................................................... 15

State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG
Defs.’ Motion for Partial Summary Judgment re: 2808 and Opp. to Pls.’ Motion for Summary Judgment
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Idaho Bldg. & Const. Trades Council, AFL-CIO v. Wasden,
834 F. Supp. 2d 1091 (D. Idaho 2011) .............................................................................................. 34, 35
Individuals for Responsible Gov’t, Inc. v. Washoe Cnty.,
110 F.3d 699 (9th Cir. 1997) ..................................................................................................................... 10
INS v. Chadha,
462 U.S. 919 (1983) .................................................................................................................................... 24
Iowa ex rel. Miller v. Block,
771 F.2d 347 (8th Cir. 1985) ..................................................................................................................... 32
J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc.,
534 U.S. 124 (2001) .................................................................................................................................... 22
Jamul Action Comm. v. Chaudhuri,
837 F.3d 958 (9th Cir. 2016) ..................................................................................................................... 27
Karnoski v. Trump,
926 F.3d 1180 (9th Cir. 2019) ................................................................................................................... 16
Kleppe v. New Mexico,
426 U.S. 529 (1976) .................................................................................................................................... 34
Lexmark Int’l, Inc. v. Static Control Components, Inc.,
572 U.S. 118 (2014) .......................................................................................................................... 9, 10, 11
Lincoln v. Vigil,
508 U.S. 182 (1993) .................................................................................................................................... 22
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak,
567 U.S. 209 (2012) .................................................................................................................................... 10
Miller v. Gammie,
335 F.3d 889 (9th Cir. 2003) ..................................................................................................................... 11
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Inc. Co.,
463 U.S. 29 (1983) ................................................................................................................................ 19, 20
N. Cheyenne Tribe v. Norton,
503 F.3d 836 (9th Cir. 2007) ..................................................................................................................... 27
Nat’l City Bank of Indiana v. Turnbaugh,
367 F. Supp. 2d 805 (D. Md. 2005) ......................................................................................................... 35
Nat’l Treasury Employees Union v. Von Raab,
489 U.S. 656 (1989) .................................................................................................................................... 34

State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG
Defs.’ Motion for Partial Summary Judgment re: 2808 and Opp. to Pls.’ Motion for Summary Judgment
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Nat’l Wildlife Fed’n v. Burlington N.R.R.,
23 F.3d 1508 (9th Cir. 1994) ..................................................................................................................... 28
Nevada v. Department of Energy,
400 F.3d 9 (D.C. Cir. 2005) ....................................................................................................................... 23
New Mexico Dept. of Game & Fish v. U.S. Dept. of Interior,
854 F.3d 1236 (10th Cir. 2017) ................................................................................................................. 28
New York v. Reilly,
969 F.2d 1147 (D.C. Cir. 1992) ................................................................................................................ 20
NFFE v. United States,
905 F.2d 400 (D.C. Cir. 1990) ...................................................................................................... 15, 19, 21
Nken v. Holder,
556 U.S. 418 (2009) .............................................................................................................................. 10, 33
North Dakota v. United States,
495 U.S. 423 (1990) .................................................................................................................................... 16
Orloff v. Willoughby,
345 U.S. 83 (1953) ...................................................................................................................................... 16
Pennsylvania v. Kleppe,
533 F.2d 668 (D.C. Cir. 1976) .................................................................................................................. 32
People ex rel. Hartigan v. Cheney,
726 F. Supp. 219 (C.D. Ill. 1989) ............................................................................................................. 33
Pruitt v. Cheney,
963 F.2d 1160 (9th Cir. 1991) ................................................................................................................... 16
Rostker v. Goldberg,
453 U.S. 57 (1981) .......................................................................................................................... 15, 16, 19
Salazar v. Ramah Navajo Chapter,
567 U.S. 182 (2012) .............................................................................................................................. 21, 22
Sebra v. Neville,
801 F.2d 1135 (9th Cir. 1986) ................................................................................................................... 16
Sec’y of Agric. v. Cent. Roig Ref. Co.,
338 U.S. 604 (1950) .................................................................................................................................... 20
Sierra Club v. Trump,
379 F. Supp. 3d 883 (N.D. Cal. 2019) ............................................................................................... 12, 13

State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG
Defs.’ Motion for Partial Summary Judgment re: 2808 and Opp. to Pls.’ Motion for Summary Judgment
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Sierra Club v. Trump,
929 F.3d 670 (9th Cir. 2019) ..................................................................................................................... 10
Sierra Club v. Trump,
No. 19-CV-892-HSG, 2019 WL 2715422 (N.D. Cal. June 28, 2019)................................................. 25
State of Alaska v. Carter,
462 F. Supp. 1155 (D. Alaska 1978) ........................................................................................................ 26
Tennessee Valley Auth. v. Hill,
437 U.S. 153 (1978) .................................................................................................................................... 22
Thompson v. North Am. Stainless, LP,
562 U.S. 170 (2011) ................................................................................................................................ 9, 11
Trump v. Sierra Club,
--- S. Ct. ----, 2019 WL 3369425 (U.S. July 26, 2019)............................................................................ 10
United States v. 32.42 Acres of Land, More or Less, Located in San Diego Cty., Cal.,
683 F.3d 1030 (9th Cir. 2012) ................................................................................................................... 15
United States v. Apel,
571 U.S. 359 (2014) .................................................................................................................................... 13
United States v. Novak,
476 F.3d 1041 (9th Cir. 2007) ............................................................................................................. 14, 25
Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc.,
454 U.S. 464 (1982) .................................................................................................................................... 10
Wasco Prods., Inc. v. Southwall Techs., Inc.,
435 F.3d 989 (9th Cir. 2006) ..................................................................................................................... 26
Westlands Water Dist. v. Nat. Res. Def. Council,
43 F.3d 457 (9th Cir. 1994) ................................................................................................................. 26, 27
Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008) ............................................................................................................... 15, 16, 27, 34, 35
Wyoming v. Oklahoma,
502 U.S. 437 (1992) .............................................................................................................................. 32, 33
STATUTES

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5 U.S.C. § 551 et. seq. ....................................................................................................................................... 10

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5 U.S.C. § 701 .................................................................................................................................................. 15

State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG
Defs.’ Motion for Partial Summary Judgment re: 2808 and Opp. to Pls.’ Motion for Summary Judgment
vi

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10 U.S.C. § 2687 .............................................................................................................................................. 14
10 U.S.C. § 2801 ........................................................................................................................................ passim
10 U.S.C. § 2803 .............................................................................................................................................. 25

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10 U.S.C. § 2808 ........................................................................................................................................ passim

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10 U.S.C. § 251–52.............................................................................................................................................4

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10 U.S.C. § 271–84.............................................................................................................................................4

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12 U.S.C. § 1702 .............................................................................................................................................. 25

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10

15 U.S.C. § 1392 .............................................................................................................................................. 19

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31 U.S.C. § 1112 .............................................................................................................................................. 23

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40 U.S.C. § 101 et. seq. ................................................................................................................................. 8, 14

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40 U.S.C. § 521 ................................................................................................................................................ 14

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43 U.S.C. § 1701 et. seq. ......................................................................................................................................8

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43 U.S.C. § 1702 ........................................................................................................................................ 15, 26
43 U.S.C. § 1714 ........................................................................................................................................ 14, 26

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50 U.S.C. § 1601 et. seq. ......................................................................................................................................6

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50 U.S.C. § 1622 .............................................................................................................................................. 24

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50 U.S.C. § 3038 .............................................................................................................................................. 24

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Pub. L. No. 114-287 ....................................................................................................................................... 14
Consolidated Appropriations Act, 2019 (CAA), Pub. L. No. 116-6 ................................................. passim
RULES
Fed. R. Civ. P. 54 .......................................................................................................................................... 1, 9
Fed. R. Civ. P. 56 .......................................................................................................................................... 1, 9

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State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG
Defs.’ Motion for Partial Summary Judgment re: 2808 and Opp. to Pls.’ Motion for Summary Judgment
vii

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REGULATIONS

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43 C.F.R. § 2310.5 ........................................................................................................................................... 26

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50 C.F.R. § 424.11 ........................................................................................................................................... 20

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83 Fed. Reg. 48545 (Sept. 12, 2019) ................................................................................................................7

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84 Fed. Reg. 4949 (Feb. 15, 2019) .......................................................................................................... passim

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7

84 Fed. Reg. 17185-87 (Apr. 24, 2019) .................................................................................................. 24, 25

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84 Fed. Reg. 21798-801 (May 15, 2019) ................................................................................................ 24, 25

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84 Fed. Reg. 50063–65 (Sept. 24, 2019)................................................................................................... 8, 26

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UNITED STATES CONSTITUTION

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U.S. Const., art. I, § 7...................................................................................................................................... 24

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U.S. Const., art. I, § 9...................................................................................................................................... 23

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OTHER AUTHORITIES

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DoD Instruction 4165.14, Real Property Inventory and Forecasting ................................................................ 12

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DoD Instruction 4165.71, Real Property Acquisition ..................................................................................... 12

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Exec. Order No. 12734, 55 Fed. Reg. 48099 (Nov. 14, 1990) ............................................................... 6, 7

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Exec. Order No. 13295, 66 Fed. Reg. 58343 (Nov. 16, 2001) ....................................................................7

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Exec. Order No. 13767, 82 Fed. Reg. 8793 (Jan. 25, 2017).........................................................................3
Government Accountability Office (GAO), A Glossary of Terms Used in the Federal Budget Process 80
(Sept. 2005) .................................................................................................................................................. 23
H.R. Rep. No. 97-44, 1982 WL 25036 (1981) ...................................................................................... 22, 25

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H.R. Rep. No. 97-612, 1982 WL 25036 (June 17, 1982) ..................................................................... 18, 19

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H.R. Rep. No. 103-200, 1993 WL 298896 (1993) .........................................................................................4

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27

Hr’g Before the S. Comm. on Armed Servs. Subcomm. on Emerging Threats and Capabilities, 1999
WL 258030 (Apr. 27, 1999)..........................................................................................................................4

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Kenneth Culp Davis, Administrative Law § 28:1 (1984) .......................................................................... 15

State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG
Defs.’ Motion for Partial Summary Judgment re: 2808 and Opp. to Pls.’ Motion for Summary Judgment
viii

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Presidential Memorandum, Securing the Southern Border of the United States
2018 WL 1633761 (Apr. 4, 2018) ........................................................................................................... 3, 4

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S. 1790, 116th Cong. § 2906 .......................................................................................................................... 19

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5

Summary, H.J. Res. 46, 116th Cong., www.congress.gov/bill/116thcongress/house-jointresolution/46 ..................................................................................................................................................6

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Summary S.J. Res. 54, www.congress.gov/bill/116th-congress/senate-joint-resolution/54 .................6

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Veto Message for H.J. Res. 46, 2019 WL 1219481 (Mar. 15, 2019) ...........................................................5

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Veto Message for S.J. Res 54 ............................................................................................................................6

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State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG
Defs.’ Motion for Partial Summary Judgment re: 2808 and Opp. to Pls.’ Motion for Summary Judgment
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NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT

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PLEASE TAKE NOTICE that Defendants hereby move the Court pursuant to Federal Rules

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of Civil Procedure 54(b) and 56 for partial summary judgment with respect to the funding and

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construction of the border barrier projects undertaken pursuant to 10 U.S.C. § 2808. The motion is

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based on the following Memorandum of Points and Authorities in support of Defendants’ motion

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and in opposition to Plaintiffs’ motion for partial summary judgment, as well as all previous filings in

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this action, including the certified administrative record (ECF No. 212) and Defendants’ opposition

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to Plaintiffs’ motion for preliminary injunction (ECF No. 89).

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MEMORANDUM OF POINTS AND AUTHORITIES

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INTRODUCTION

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On February 15, 2019, the President issued a proclamation declaring that a national emergency

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exists at the southern border. See Presidential Proclamation on Declaring a Nat’l Emergency

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Concerning the S. Border of the United States, 84 Fed. Reg. 4949 (Feb. 15, 2019) (Proclamation).

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Because the southern border is “a major entry point for criminals, gang members, and illicit narcotics”

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as well as “large-scale unlawful migration,” the President determined that “[t]he current situation at

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the southern border presents a border security and humanitarian crisis that threatens core national

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security interests and constitutes a national emergency.” Id. Given the “gravity of the current

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emergency situation,” the President also determined that “this emergency requires use of the Armed

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Forces” and “it is necessary for the Armed Forces to provide additional support to address the crisis.”

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Id.

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To respond to the national emergency, the President’s Proclamation invoked and made

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available to the Department of Defense (DoD) the statutory authority conferred in 10 U.S.C. § 2808,

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which authorizes DoD to spend unobligated military construction funds to undertake military

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construction projects necessary to support the use of the armed forces in response to a national

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emergency that requires the use of the armed forces. DoD has been building barriers along the

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southern border since the 1990s, and several thousand military personnel are currently deployed to

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the southern border to provide a wide range of assistance to the Department of Homeland Security

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(DHS) in its border security mission. To provide additional support for these military forces, the

State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG
Defs.’ Motion for Partial Summary Judgment re: 2808 and Opp. to Pls.’ Motion for Summary Judgment
1

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Secretary of Defense undertook an extensive multi-agency deliberative process that culminated in his

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decision on September 3, 2019, to undertake eleven border barrier military construction projects in

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California, Arizona, New Mexico, and Texas pursuant to § 2808 as necessary to support the use of the

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armed forces in connection with the national emergency.

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Plaintiffs here, a collection of 20 States, raise various statutory and constitutional challenges

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to the Secretary’s decision, but none of them has merit. As a threshold matter, the States claims fail

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because their alleged injuries fall outside the zone of interests protected by the limitations in § 2808 as

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well as the Consolidated Appropriations Act, 2019 (CAA), Pub. L. No. 116-6, 133 Stat. 13 (2019).

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Further, the States lack an implied cause of action in equity to enforce the Appropriations Clause.

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Even assuming the States have a cause of action, the Secretary of Defense’s decision to

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undertake the projects was lawful and consistent with the requirements of § 2808. The projects all

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constitute “military construction” undertaken “with respect to a military installation.” See 10 U.S.C.

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§ 2801. Congress defined these terms broadly and the border barrier projects here easily fall within

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those statutory definitions. The Secretary also properly determined that the projects are necessary to

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support the use of the armed forces in connection with the national emergency at the southern border

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because the projects will, among other things, enhance the ability of military forces to support DHS

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more effectively and efficiently. The Secretary’s military judgment with respect to the allocation of

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resources to support the armed forces is committed to his discretion by law or, at most, is subject to

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review under a highly deferential standard given the long line of authority requiring judicial deference

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to military judgments. Further, there is no merit to the States’ argument that the Secretary acted

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arbitrarily and capriciously in violation of the Administrative Procedure Act (APA) by funding the

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projects using money from unobligated military construction projects, as § 2808 requires.

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The Court should also reject the States’ argument that the use of § 2808 violates other statutory

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and constitutional provisions. DoD’s use of its independent statutory authority pursuant to § 2808

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does not violate any provision of the CAA. Additionally, the States’ claim against DoD under the

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National Environmental Policy Act (NEPA) fails because § 2808 authorizes military construction

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“without regard to any other provision of law” and thus sweeps aside statutes like NEPA that would

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impede the activities authorized by § 2808. The States’ NEPA claim against the Department of the

State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG
Defs.’ Motion for Partial Summary Judgment re: 2808 and Opp. to Pls.’ Motion for Summary Judgment
2

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Interior (DoI) fares no better as it is procedurally improper and, in any event, fails on the merits given

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the mandatory nature of the emergency land transfer authority under Federal Land Policy and

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Management Act (FLPMA).

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Appropriations Clause, Presentment Clause, and separation of powers are nothing more than dressed-

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up allegations of statutory violations and otherwise fail on the merits.

Further, the States’ purported constitutional claims under the

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The States’ request for a permanent injunction should also be denied because the States have

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not carried their burden to establish an irreparable injury. The States are not injured by their inability

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to enforce state laws in contravention of § 2808; they have not carried their burden to establish that

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the § 2808 projects will irreparably injure wildlife; and their generalized complaints about harm to their

10

local economies are insufficient to establish standing, let alone irreparable injury warranting a

11

permanent injunction. Moreover, the balance of equities tips sharply in favor of the Government

12

given the compelling interests in supporting military forces and in protecting the safety and integrity

13

of the Nation’s borders, as compared to the States’ environmental and fiscal interests.

14

For these reasons, as explained below, the Court should deny the States’ motion for partial

15

summary judgment, grant Defendants’ motion for partial summary judgment, and enter final judgment

16

for Defendants on all claims related to the funding and construction of § 2808 border barrier projects.

17

BACKGROUND

18

I.

DoD’s Support for DHS’ Efforts to Secure the Southern Border

19

On January 25, 2017, the President issued an Executive Order stating that it is the policy of

20

the Executive Branch to “secure the southern border of the United States through the immediate

21

construction of a physical wall on the southern border, monitored and supported by adequate

22

personnel so as to prevent illegal immigration, drug and human trafficking, and acts of terrorism.” See

23

Border Security and Immigration Enforcement Improvements, Exec. Order No. 13767, 82 Fed. Reg.

24

8793 (Jan. 25, 2017). On April 4, 2018, the President issued a memorandum to the Secretary of

25

Defense, Secretary of Homeland Security, and the Attorney General titled, “Securing the Southern

26

Border of the United States.” Presidential Memorandum, 2018 WL 1633761 (Apr. 4, 2018). The

27

President stated that “[t]he security of the United States is imperiled by a drastic surge of illegal activity

28

on the southern border” and pointed to an “anticipated rapid rise in illegal crossings,” as well as “[t]he

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3

1

combination of illegal drugs, dangerous gang activity, and extensive illegal immigration.” Id. The

2

President determined the situation at the border had “reached a point of crisis” that “once again calls

3

for the National Guard to help secure our border and protect our homeland.” Id. To address this

4

crisis, the President directed the Secretary of Defense to support DHS in securing the border,

5

including through the use of the National Guard. Id.

6

The President’s directive for the military to assist with DHS’ border security efforts builds on

7

a decades-long practice of DoD providing support to civilian law-enforcement activities at the border.

8

Congress has authorized the military to provide a wide range of support to DHS at the southern

9

border. See, e.g., 10 U.S.C. §§ 251–52, 271–84. And since the early 1990s, military personnel have

10

provided extensive assistance to civilian law-enforcement agency activities to secure the border,

11

counter the spread of illegal drugs, and respond to transnational threats. See H. Armed Servs. Comm.

12

Hr’g on S. Border Defense Support (Jan. 29, 2019) (Joint Statement of John Rood, Under Secretary

13

of Defense for Policy, and Vice Admiral Michael Gilday, Director of Operations for the Joint Chiefs

14

of Staff) (Exhibit 1). Indeed, for decades, U.S. military forces have played an active role in barrier

15

construction and reinforcement on the border. See, e.g., H.R. Rep. No. 103-200, at 330-31, 1993 WL

16

298896 (1993) (commending DoD for its role in constructing the San Diego primary fence); Hr’g

17

Before the S. Comm. on Armed Servs. Subcomm. on Emerging Threats and Capabilities, 1999 WL

18

258030 (Apr. 27, 1999) (military personnel constructed over 65 miles of barrier fencing); Joint

19

Statement of Rood and Gilday (National Guard built over 100 miles of barriers).

20

Since the President issued his April 2018 memorandum, military personnel deployed to the

21

southern border have performed a broad range of administrative, logistical, and operational tasks in

22

support of DHS’ border security mission. See Administrative Record re: § 2808 (AR) at 45 (ECF No.

23

212); H. Comm. Homeland Security Hr’g on DoD’s Deployment to the U.S. Mexico Border (June 20,

24

2019) (Statement of Robert G. Salesses, Deputy Assistant Secretary of Defense) (Exhibit 2); see id.

25

(Statement of Carla Provost, Chief, U.S. Border Patrol) (Exhibit 3). These activities include installing

26

vehicle and pedestrian barriers; emplacing concertina wire along the border and at ports of entry; and

27

operating aerial and mobile surveillance equipment to detect activity along the border. See id.

28

State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG
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4

1

II.

The President’s Proclamation Declaring a National Emergency at the
Southern Border

2

On February 15, 2019, the President declared that “a national emergency exists at the southern

3

border of the United States.” See Proclamation. The President determined that “[t]he current situation

4

at the southern border presents a border security and humanitarian crisis that threatens core national

5

security interests and constitutes a national emergency.” Id. The President explained:

6
7
8
9
10
11
12

The southern border is a major entry point for criminals, gang members, and
illicit narcotics. The problem of large-scale unlawful migration through the
southern border is long-standing, and despite the executive branch’s exercise of
existing statutory authorities, the situation has worsened in certain respects in
recent years. In particular, recent years have seen sharp increases in the number
of family units entering and seeking entry to the United States and an inability
to provide detention space for many of these aliens while their removal
proceedings are pending. If not detained, such aliens are often released into the
country and are often difficult to remove from the United States because they
fail to appear for hearings, do not comply with orders of removal, or are
otherwise difficult to locate.

13

Id. “Because of the gravity of the current emergency situation,” the President determined that “this

14

emergency requires use of the Armed Forces” and “it is necessary for the Armed Forces to provide

15

additional support to address the crisis.” Id.

16

On March 15, 2019, the President vetoed a joint resolution passed by Congress that would

17

have terminated the national emergency declaration. See Veto Message for H.R.J. Res. 46, 2019 WL

18

1219481 (Mar. 15, 2019). The President relied upon statistics published by U.S. Customs and Border

19

Protection (CBP) as well congressional testimony by the Secretary of Homeland Security to reaffirm

20

that a national emergency exists along the southern border. See id. The President highlighted, among

21

other things, (1) a recent increase in the number of apprehensions along the southern border; (2)

22

CBP’s seizure of hundreds of thousands of pounds of illegal drugs; and (3) arrests of aliens previously

23

charged with or convicted of crimes. See id. The President concluded that the “situation on our border

24

cannot be described as anything other than a national emergency, and our Armed Forces are needed

25

to help confront it.” Id.

26

On October 15, 2019, the President vetoed a second joint resolution that sought to terminate

27
28

State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG
Defs.’ Motion for Partial Summary Judgment re: 2808 and Opp. to Pls.’ Motion for Summary Judgment
5

1

the national emergency declaration. See S.J. Res. 54 Veto Message (Exhibit 4).1 The President again

2

reaffirmed that there is a national emergency requiring the use of the armed forces at the southern

3

border. See id. The President stated that the “ongoing crisis at the southern border threatens core

4

national security interests” and termination of the national emergency would “impair the

5

Government’s capacity to secure the Nation’s southern borders against unlawful entry and to curb the

6

trafficking and smuggling that fuels the present humanitarian crisis.” Id.

7

III.

8

The President’s Proclamation made available to the Secretary of Defense the military

9

construction authority provided by 10 U.S.C. § 2808. See Proclamation. 10 U.S.C. § 2808(a) provides:

10

In the event of a declaration of war or the declaration by the President of a
national emergency in accordance with the National Emergencies Act (50 U.S.C.
1601 et seq.) that requires use of the armed forces, the Secretary of Defense,
without regard to any other provision of law, may undertake military
construction projects, and may authorize the Secretaries of the military
departments to undertake military construction projects, not otherwise
authorized by law that are necessary to support such use of the armed forces.
Such projects may be undertaken only within the total amount of funds that
have been appropriated for military construction, including funds appropriated
for family housing, that have not been obligated.

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

10 U.S.C. § 2808

The term “military construction” as used in § 2808 “includes any construction, development,
conversion, or extension of any kind carried out with respect to a military installation, whether to
satisfy temporary or permanent requirements, or any acquisition of land . . . .” 10 U.S.C. § 2801(a).
Congress defined the term “military installation” to mean “a base, camp, post, station, yard, center, or
other activity under the jurisdiction of the Secretary of a military department or, in the case of an
activity in a foreign country, under the operational control of the Secretary of a military department
or the Secretary of Defense, without regard to the duration of operational control.” Id. § 2801(c)(4).
Presidents have invoked the military construction authority under § 2808 on two prior
occasions. First, President George H.W. Bush authorized the use of § 2808 in 1990 following the
Government of Iraq’s invasion of Kuwait. See Exec. Order No. 12734, 55 Fed. Reg. 48099 (Nov. 14,

1

Congress failed to override the President’s vetoes. See Summary, H.R.J. Res. 46, 116th Cong.,
www.congress.gov/bill/116thcongress/house-joint-resolution/46; Summary S.J. Res. 54,
www.congress.gov/bill/116th-congress/senate-joint-resolution/54.
State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG
Defs.’ Motion for Partial Summary Judgment re: 2808 and Opp. to Pls.’ Motion for Summary Judgment
6

1

1990). Second, President George W. Bush invoked § 2808 in response to the terrorist attacks against

2

the United States on September 11, 2001. See Exec. Order No. 13295, 66 Fed. Reg. 58343 (Nov. 16,

3

2001). The national emergency addressing the September 11 attacks remains in effect today, see 84

4

Fed. Reg. 48545 (Sept. 12, 2019), and DoD has used its § 2808 authority to build a wide variety of

5

military construction projects over the past 18 years, including security fencing and protective barriers

6

at domestic military installations. See Cong. Research Serv., Military Construction Funding in the

7

Event of a National Emergency at 1–3 & tbl. 1 (updated Jan. 11, 2019); see Memorandum for the

8

Secretary of the Army (Dec. 4, 2001) (Exhibit 5).

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

IV.

The Secretary of Defense’s Authorization to Undertake 11 Border Barrier
Military Construction Projects Pursuant to § 2808

On September 3, 2019, pursuant to § 2808, the Secretary of Defense determined that 11 border
barrier projects along the international border with Mexico are necessary to support the use of the
armed forces in connection with the President’s declaration of a national emergency. See AR at 1–33.
Based on analysis from the Chairman of the Joint Chiefs of Staff, among others, the Secretary
concluded the projects will deter illegal entry, increase the vanishing time of those illegally crossing
the border (i.e., the time that passes before a subject who illegally crosses the border can no longer be
identified), and channel migrants to ports of entry. Id. at 9. Further, the projects will support the use
of the armed forces by reducing demand for DoD personnel and assets at the locations where the
barriers are constructed and allow redeployment of DoD personnel and assets to other high-traffic
areas on the border without barriers. Id. Consequently, the barriers serve as force multipliers
enhancing military capabilities and allow DoD to support DHS more efficiently and effectively. Id.
As relevant to this case, the States seek an injunction prohibiting the construction of five
projects in California and two in New Mexico:
1. San Diego 4: 1.5 miles of new primary pedestrian fence system and 2 miles of new secondary
pedestrian fence system in San Diego County, CA (3.5 miles);
2. San Diego 11: New secondary pedestrian fence system in San Diego County, CA (3 miles);
3. El Paso 2: Replace vehicle barriers with new pedestrian fencing in non-contiguous segments
in Hidalgo and Luna Counties, NM (23.1 miles);

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1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

4. El Paso 8: Replace vehicle barriers with 6 miles of new primary pedestrian fence system and
6 miles of new secondary pedestrian fence system in Hidalgo County, NM (12 miles);
5. El Centro 9: New secondary pedestrian fence system in Imperial County, CA (12 miles);
6. El Centro 5: New secondary pedestrian fence system in Imperial County, CA (1 mile);
7. Yuma 6: 1 mile of new primary pedestrian fence system and 2 miles of new secondary
pedestrian fence system.2
See AR at 11; States’ Mot. at 1; Declaration of Alex Beehler, Asst. Sec. of the Army for Installations,
Energy, and Environment, ¶¶ 3–32 (describing project areas and attaching maps.) (Exhibit 6).
To fund these projects, the Secretary approved the use of up to $3.6 billion in unobligated
military construction funds. See id. at 82–89. The Secretary directed that, initially, only funds
associated with projects located outside the United States will be provided to the Department of the
Army. See id. at 82. Deferred military construction projects outside the United States account for $1.8
billion of the required funds. See id. The remaining $1.8 billion associated with deferred projects
located in the United States (including U.S. territories) will be made available to the Secretary of the
Army when needed for obligation. See id. The States seek to enjoin the use of funds associated with
17 deferred projects in their States. See States’ Mot. at 2 & n.2; AR at 87–89.
The Secretary identified three different types of land on which the projects would be built and
authorized the Secretary of the Army to take steps to acquire and add that land to the Army’s real
property inventory, either as a new military installation or as part of an existing military installation.
See id. at 3, 6, 9–10, 30–31. First, several projects will be located in whole or in part on Federal land
not subject to the Federal Property and Administrative Services Act (Property Act), 40 U.S.C. § 101
et. seq., and that can be transferred under the Federal Land Policy and Management Act (FLPMA), 43
U.S.C. §§ 1701 et seq.; Declaration of Brigadier General Glenn Goddard ¶ 10 (ECF No. 206-3). The
Secretary authorized and directed the Secretary of the Army to request that DoI transfer Federal lands
subject to the FLPMA required for the projects to the Army. See AR at 9–10, 30–31. On September
18, 2019, DoI announced transfers of the public lands for five projects in this category. See Public
Land Order Nos. 7883–87, 84 Fed. Reg. 50063–65 (Sept. 24, 2019) (San Diego 4, El Paso 2 & 8, and

27
28

2

The Yuma 6 project has construction in Arizona and California. The portion in California
at issue here is 0.2 miles of primary barrier and 1.5 miles of secondary barrier. See Beehler Decl. ¶ 18.
State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG
Defs.’ Motion for Partial Summary Judgment re: 2808 and Opp. to Pls.’ Motion for Summary Judgment
8

1

Yuma 3 & 6). Second, for Federal land governed by the Property Act, the Secretary of Defense

2

directed that the relevant Federal land holding agency, through the General Services Administration

3

(GSA), transfer administrative jurisdiction over lands in the project areas to the Army expeditiously

4

and without charge. See AR at 9–10, 30–31. Third, with respect to any non-Federal land, the United

5

States intends to acquire that land through negotiated purchases or condemnation. See id. at 3;

6

Goddard Decl. ¶¶ 9, 10.c. On October 8, 2019, the Secretary of the Army assigned all land necessary

7

for the § 2808 projects to the U.S. Army Garrison Fort Bliss, Texas, making those lands, upon transfer

8

of administrative jurisdiction to the Army, part of the Fort Bliss military installation. See General

9

Order No. 2019-36, Assignment of Southwest Border Sites (Exhibit 7).
LEGAL STANDARD

10
11

Federal Rule of Civil Procedure 56(a) provides that a party may move for summary judgment

12

on some or all of the claims or defenses presented in a case. Summary judgment is appropriate when,

13

viewing the evidence and drawing all reasonable inferences most favorably to the nonmoving party,

14

“there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter

15

of law.” Fed. R. Civ. P. 56(a). Where the parties file cross-motions for partial summary judgment,

16

“the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties

17

only if the court expressly determine that there is no just reason for delay.” See Fed. R. Civ. P. 54(b).

18

ARGUMENT

19

I.

20

The States’ claims fail because their alleged injuries fall outside the zone of interests protected

21

Plaintiffs Are Outside The Zone Of Interests Protected By § 2808 and the CAA.

by the limitations in § 2808 and the CAA.

22

The “zone-of-interests” requirement limits the types of plaintiffs who “may invoke [a] cause

23

of action” to enforce a particular statutory provision. Lexmark Int’l, Inc. v. Static Control Components,

24

Inc., 572 U.S. 118, 129-30 (2014). That limitation reflects the reality that Congress generally does not

25

intend to provide a cause of action to “plaintiffs who might technically be injured in an Article III

26

sense but whose interests are unrelated to the statutory prohibitions” they seek to enforce. Thompson

27

v. North Am. Stainless, LP, 562 U.S. 170, 178 (2011). “Congress is presumed to legislate against the

28

background of the zone-of-interests limitation,” which excludes putative plaintiffs whose interests do

State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG
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9

1

not “fall within the zone of interests protected by the law invoked.” Lexmark, 572 U.S. at 129.

2

When a plaintiff brings a cause of action under the Administrative Procedure Act (APA), 5

3

U.S.C. § 551 et seq., to challenge the government’s compliance with another statute, the “interest he

4

asserts must be arguably within the zone of interests to be protected or regulated by the statute that

5

he says was violated.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209,

6

224 (2012). Where a plaintiff invokes an implied cause of action in equity, the Supreme Court has

7

suggested that a heightened zone-of-interest requirement applies, and the provision must be intended

8

for the “especial benefit” of the plaintiff. See Clarke v. Securities Indus. Ass’n, 479 U.S. 388, 396, 400 &

9

n.16 (1987). Thus, regardless of whether the States’ cause of action in this case is considered under

10

the APA or as an implied equitable action, the zone-of-interests requirement applies. See, e.g., Lexmark

11

Int’l, Inc., 572 U.S. at 129; Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc.,

12

454 U.S. 464, 475 (1982); Boston Stock Exch. v. State Tax Comm’n, 429 U.S. 318, 320–21 & n.3 (1977);

13

Individuals for Responsible Gov’t, Inc. v. Washoe Cnty., 110 F.3d 699, 703 (9th Cir. 1997).

14

Indeed, the absence of a cause of action was among the reasons the Supreme Court stayed the

15

injunction issued by this Court against the border barrier projects funded by transfers pursuant to

16

§ 8005 of the DoD Appropriations Act, 2019. See Trump v. Sierra Club, --- S. Ct. ----, 2019 WL 3369425

17

(U.S. July 26, 2019) (“Among the reasons is that the Government has made a sufficient showing at

18

this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary’s

19

compliance with Section 8005.”).3

20
21
22
23
24
25
26
27
28

3

Defendants acknowledge that this Court previously concluded that the zone-of-interests test
does not apply in an ultra vires challenge outside of the APA framework. See California v. Trump, 379 F.
Supp. 3d 928, 943 (N.D. Cal. 2019). Defendants respectfully submit that the Court erred for the
reasons explained above. Moreover, in granting the extraordinary relief of a stay of the Court’s
injunction pending appeal, the Supreme Court necessarily concluded that Defendants had satisfied the
standard to obtain a stay of the injunction, including a likelihood of success on the merits related to
the absence of a cause of action. See Nken v. Holder, 556 U.S. 418, 434 (2009) (reciting stay standard).
That decision is “clearly irreconcilable” with, and thus supersedes, the Court of Appeals’ motions
panel’s contrary holding that the government had not satisfied the stay standard. Miller v. Gammie, 335
F.3d 889, 900 (9th Cir. 2003) (en banc); see Sierra Club v. Trump, 929 F.3d 670, 700–04 (9th Cir. 2019).
Because the Supreme Court’s decision sends a strong signal that the analysis of the cause of action
and zone of interests by this Court and the Ninth Circuit motions panel was incorrect, Defendants
respectfully submit that the Court should not follow that analysis here.
State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG
Defs.’ Motion for Partial Summary Judgment re: 2808 and Opp. to Pls.’ Motion for Summary Judgment
10

1

The States lack a cause of action to enforce the limitations in § 2808 because their sovereign,

2

environmental, and fiscal interests fall outside its zone of interests. Section 2808 provides that in the

3

event the President declares a national emergency that requires the use of the armed forces, DoD may

4

undertake military construction projects, “without regard to any other provision of law,” that are

5

“necessary to support such use of the armed forces.” Nothing in the text of § 2808 suggests that

6

Congress intended to permit enforcement of the statute’s limitations by parties who, like the States

7

here, assert that a military construction project would indirectly diminish their tax revenue and harm

8

their environmental interests. Section 2808 authorizes DoD to undertake military construction

9

projects “without regard to any other provision of law” and reflects Congress’ decision to give DoD

10

significant flexibility to engage in construction projects necessary to support the use of the armed

11

forces.

12

construction might implicate and certainly does not evince congressional intent to protect such

13

interests. Indeed, the text of the statute—specifically its “without regard to any other provision of

14

law” clause—authorizes DoD to bypass the extrinsic statutory and regulatory requirements that would

15

otherwise limit DoD from exercising its military construction authority effectively and expeditiously.

16

See Cisneros v. Alpine Ridge Grp., 508 U.S. 10, 18 (1993) (approving lower courts’ statements that a

17

notwithstanding clause “supersede[s] all other laws” and that a “clearer statement is difficult to

18

imagine”). And given the language in § 2808 that contrary laws must give way to facilitate military

19

construction—making clear that the statute not only does not protect the States’ asserted interests but

20

applies notwithstanding other provisions that might do so—it would be especially odd to allow suit

21

by “plaintiffs who might technically be injured in an Article III sense but whose interests are unrelated”

22

to the limitations in § 2808. Thompson, 562 U.S. at 176–78.

Section 2808 has nothing to do with environmental or economic interests that such

23

The States also fall outside the zone of interests protected by the CAA. See States’ Mot. at 15–

24

16. Like § 8005, the CAA regulates the relationship between Congress and the Executive Branch

25

regarding federal spending. Thus, the “interests protected by the” statute are completely unrelated to

26

the interests the States seek to vindicate in this case. See Lexmark, 527 U.S. at 131.

27

II.

Plaintiffs Lack an Implied Equitable Cause of Action Under the Constitution.

28

In addition, the States lack a cause of action because this is not “a proper case” for the “judge-

State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG
Defs.’ Motion for Partial Summary Judgment re: 2808 and Opp. to Pls.’ Motion for Summary Judgment
11

1

made remedy” of an implied cause of action under the Appropriations Clause. See Armstrong v.

2

Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1384 (2015); Grupo Mexicano De Desarrollo SA v. All. Bond

3

Fund, Inc., 527 U.S. 308, 319 (1999). As explained below, see infra at 20–24, this case raises purely

4

statutory, not constitutional issues, and the States identify no history or tradition of courts of equity

5

inferring an analogous equitable cause of action directly under the Appropriations Clause in such

6

circumstances. See Grupo Mexicano, 527 U.S. at 319 (1999).

7

III.

The § 2808 Border Barriers Are Military Construction Projects.

8

Assuming the Court reaches the merits of the States’ claim, the Secretary’s actions are plainly

9

lawful. Section 2808(a) authorizes the Secretary of Defense to “undertake military construction

10

projects” and there is no dispute that the planned border barriers constitute “construction” being

11

undertaken by DoD. See Sierra Club v. Trump, 379 F. Supp. 3d 883, 920 (N.D. Cal. 2019). Accordingly,

12

the projects fall within the definition of “military construction” so long as they are undertaken “with

13

respect to a military installation.” 10 U.S.C. § 2801(a).

14

The locations of the planned border barrier projects fall within the broad definition of

15

“military installation,” which includes “a base, camp, post, station, yard, center, or other activity under

16

the jurisdiction of the Secretary of a military department[.]” Id. § 2801(c)(4). Two of the projects are

17

on the Goldwater Range, an existing military installation. See AR at 11 (Yuma 2 & Yuma 10/27).

18

With respect to the remaining project areas, DoD has the authority to obtain administrative

19

jurisdiction over the requisite land and either convert that land into a new military installation or add

20

it to an existing military installation in accordance with DoD’s regulations governing property

21

acquisition. See DoD Instruction 4165.14, Real Property Inventory and Forecasting; DoD Instruction

22

4165.71, Real Property Acquisition. As explained above, the Secretary of Defense has directed the

23

Secretary of the Army to acquire administrative jurisdiction of real property from other Federal

24

agencies and acquire the non-Federal real property necessary to undertake the § 2808 projects. See

25

supra at 8. And the Secretary of the Army has determined that the sites designated for the § 2808

26

border barrier military construction projects will be part of the Fort Bliss military installation upon

27

transfer of administrative jurisdiction of those sites to the Department of the Army. See Exhibit 7.

28

There is thus no merit to the States’ argument that the projects are not “military construction.” All

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12

1

of the planned construction will be undertaken “with respect to a military installation”: either the

2

Goldwater Range or Fort Bliss. These are clearly existing military installations, (i.e., a “base, camp,

3

post, station, yard, center, homeport facility”), and any land assigned to Fort Bliss by the Secretary of

4

the Army where § 2808 activity would occur would also be an “activity under the jurisdiction of the

5

Secretary of a military department.” 10 U.S.C. § 2801(c)(4).

6

Defendants are not arguing that the entire southern U.S. border falls within the scope of an

7

“other activity” constituting a military installation. Thus, the Court need not revisit its earlier concern

8

that canons of statutory construction “likely preclude[] treating the southern border as an ‘other

9

activity.’” Sierra Club, 379 F. Supp. 3d at 920. That issue is not presented because the Secretary of

10

Defense has selected 11 discrete, specific project locations on which to construct border barrier

11

projects. See AR at 11. Certain of these project locations are already within preexisting military

12

installations, and a lawful process is underway for DoD to obtain administrative jurisdiction over the

13

remaining project locations and assign land to be part of the preexisting Fort Bliss military installation.

14

The border barrier construction DoD will undertake pursuant to § 2808 thus falls within the broad

15

statutory definition of a “military installation.” 10 U.S.C. § 2801(c)(4).

16

To be sure, the Court has observed that the term “other activity” should be construed as

17

referring to “discrete and traditional military locations” similar to “a base, camp, post, station, yard,

18

[and] center.” Sierra Club, 379 F. Supp. 3d at 921. But, as explained, the § 2808 project locations are

19

discrete and specific. And the Court also recognized that “‘other activity’ is not an empty term,” and

20

that “Congress undoubtedly contemplated that military installations would encompass more than just

21

‘a base, camp, post, station, yard, [or] center.’” Id. Congress’s choice to include an unqualified, all-

22

encompassing term like “or other activity” indicates its intent to make the term “military installation”

23

inclusive of activities under the jurisdiction of the Secretary of a military department in addition to those

24

facilities specifically listed in the statute. 10 U.S.C. § 2801(c)(4). Indeed, the Supreme Court has noted,

25

with specific reference to the statute defining the terms in § 2808, that federal law treats the term

26

“military installation” as “synonymous with the exercise of military jurisdiction,” United States v. Apel, 571

27

U.S. 359, 368 (2014)—an exercise of jurisdiction that is present for all the projects here. If Congress

28

had wished to limit the definition of “military installation” here, it could have done so, as it has in

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1

other statutes that define the term more narrowly in different contexts. See 10 U.S.C. § 2687(g)(1)

2

(defining, for the purpose of base closures and realignments, “military installation” to include “other

3

activity under the jurisdiction of the Department of Defense” but clarifying that “[s]uch term does

4

not include any facility used primarily for civil works” or similar activities); Pub. L. No. 114-287, § 3,

5

130 Stat. 1463 (2016) (defining military installation as “any fort, camp, post, naval training station,

6

airfield proving ground, military supply depot, military school, or any similar facility of the Department

7

of Defense.”). There is simply no basis to conclude that the § 2808 projects do no fall within the

8

broad term “other activity under the jurisdiction of the Secretary of a military department.”

9

Nor is there any question that DoD has the authority to acquire land necessary for § 2808

10

projects, given that § 2808 expressly authorizes “military construction,” including “any acquisition of

11

land.” 10 U.S.C. § 2801(a). Section 2808 further authorizes the Secretary of Defense to undertake

12

military construction projects (including land acquisitions) “without regard to any other provision of

13

law.” This broad language—a variant of a non obstante or “notwithstanding” clause—sweeps aside all

14

statutory and regulatory provisions that might otherwise constrain the authority provided by § 2808.

15

See Am. Fed’n of Gov’t Emps., Local 3295 v. Fed. Labor Relations Auth., 46 F.3d 73, 76 (D.C. Cir. 1995).

16

The clause thus provides “a sweeping dispensation from all legal constraints,” and “indicate[s] that

17

Congress intended agencies to enjoy ‘unfettered discretion.’” Id. at 76; see United States v. Novak, 476

18

F.3d 1041, 1046–47 (9th Cir. 2007) (en banc) (“The Supreme Court has indicated as a general

19

proposition that statutory ‘notwithstanding’ clauses broadly sweep aside potentially conflicting laws.”).

20

Accordingly, land acquisition authorized by § 2808 need not comply with otherwise-applicable

21

statutory restrictions.

22

In addition, for land currently controlled by other federal agencies, Congress has authorized

23

land transfers between federal agencies, although such transfers are not subject to statutory constraints

24

because of § 2808’s non obstante clause. FLPMA authorizes the Secretary of the Interior to make

25

“withdrawals” of land, 43 U.S.C. § 1714(a), including the “transfer[ of] jurisdiction over an area of

26

Federal land . . . from one department, bureau or agency to another department, bureau or agency,”

27

id. § 1702(j). Further, the Property Act, 40 U.S.C. §§ 101 et seq., authorizes GSA to transfer excess real

28

property between agencies. See id. § 521. Finally, for any non-federal land, the federal government

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14

1

may use its power of eminent domain to acquire property for military installations. See, e.g., United

2

States v. 32.42 Acres of Land, More or Less, Located in San Diego Cty., 683 F.3d 1030, 1038 (9th Cir. 2012).

3

IV.

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

The Border Barrier Projects are Necessary to Support the Use of the Armed
Forces.

Section 2808 also requires that the military construction projects must be “necessary to
support such use of the armed forces.” 10 U.S.C. § 2808(a). That requirement is satisfied here.
As a threshold matter, the Secretary’s decision to undertake military construction under § 2808
is not subject to judicial review because it is “committed to agency discretion by law.” 5 U.S.C. §
701(a)(2).4 A decision is generally committed to agency discretion by law “when a court would have
no meaningful standard against which to judge the agency’s exercise of discretion.” Heckler v. Chaney,
470 U.S. 821, 830 (1985). “[I]f no judicially manageable standards are available for judging how and
when an agency should exercise its discretion, then it is impossible to evaluate agency action for ‘abuse
of discretion.’” Id. Here, there is no meaningful standard by which the Court could review the
Secretary of Defense’s decision that the border barrier projects “are necessary to support such use of
the armed forces.” 10 U.S.C. § 2808. That is a military judgment committed to the Secretary, and the
statute does not specify any criteria the Secretary must consider in making his determination. Nor
does it include any specific prohibitions or judicially manageable standards limiting the Secretary’s
determination of what would constitute a project “necessary” to support the use of the armed forces.
See NFFE v. United States, 905 F.2d 400, 405–06 (D.C. Cir. 1990) (concluding that decisions about
closure of military bases were committed to agency discretion by law because “the federal judiciary is
ill-equipped to conduct reviews of the nation’s military policy”).
Even if the Secretary’s judgment is reviewable, it is entitled to substantial deference from this
Court. See, e.g., Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (military officials are owed
“great deference” by courts faced with requests to enjoin military action); Goldman v. Weinberger, 475
U.S. 503, 507 (1986) (Courts must “give great deference to the professional judgment of military
authorities concerning the relative importance of a particular military interest.”); Rostker v. Goldberg,
4

The principle of committing decisions to agency discretion applies whether the States’ claims
are brought under the APA or as a non-statutory challenge to agency action. See Kenneth Culp Davis,
Administrative Law §§ 28:1, 5, 15 (1984) (summarizing pre-APA law on unreviewable agency action).
State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG
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15

1

453 U.S. 57, 66 (1981) (Courts must give “a healthy deference to legislative and executive judgments

2

in the area of military affairs.”); Pruitt v. Cheney, 963 F.2d 1160, 1166 (9th Cir. 1991) (“We readily

3

acknowledge, as we must, that military decisions by the Army are not lightly to be overruled by the

4

judiciary.”). Indeed, the Supreme Court has traditionally been reluctant to intervene in the conduct

5

of military affairs. See, e.g., Winter., 555 U.S. at 24–27; North Dakota v. United States, 495 U.S. 423, 443

6

(1990); Dep’t of Navy v. Egan, 484 U.S. 518, 530 (1988); Chappell v. Wallace, 462 U.S. 296, 300 (1983);

7

Gilligan, 413 U.S. at 10; Orloff v. Willoughby, 345 U.S. 83, 93–94 (1953); see also Sebra v. Neville, 801 F.2d

8

1135, 1142 (9th Cir. 1986) (“Courts are properly wary of intruding upon that sphere of military

9

decision-making” regarding “deployment of troops and overall strategies of preparedness”). This

10

reluctance rests on separation-of-powers concerns as well as the principle that judges “are not given

11

the task of running the Army,” Orloff, 345 U.S. at 93, and are “ill-equipped” to determine the impact

12

of judicial intrusion on military decision making, Chappell, 462 U.S. at 305. For these reasons, the

13

Supreme Court has instructed courts to defer to “[t]he complex, subtle, and professional decisions as

14

to the composition, training, equipping, and control of a military force.” Gilligan, 413 U.S. at 10; see

15

Karnoski v. Trump, 926 F.3d 1180, 1207 (9th Cir. 2019) (granting writ of mandamus where the court

16

failed to apply “the appropriate deference due to a proffered military decision”).

17

Applying this highly deferential standard of review, the administrative record amply supports

18

the Secretary’s military judgment that the projects are necessary to support the use of the armed forces

19

in connection with the national emergency at the southern border. See AR at 1–11; 42–75; 97–137.

20

In reaching this decision, the Secretary undertook a thorough and deliberate process of study and

21

review that is the hallmark of judicial deference to military decisions. See, e.g., Goldman, 475 U.S. at

22

508–09; Rostker, 453 U.S. at 71–72; Karnoski, 926 F.3d at 1202. The Secretary requested and received

23

information from DHS concerning which border barrier projects DHS considers to be most effective

24

in improving the effectiveness and efficiency of DoD personnel supporting CBP at the southern

25

border. See AR 50–57, 91. DHS explained that the proposed border barrier construction would

26

fundamentally change the dynamic at the border, would give a distinct and enduring advantage to the

27

Border Patrol as a force multiplier, and would provide agents with capabilities to respond more quickly

28

to illicit activities. Id. at 56–57. As such, the projects would improve the effectiveness and efficiency

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1

of DoD personnel by allowing them to shift away from providing support to frequent, low risk border

2

incursions and instead concentrate on monitoring, tracking, and responding to a smaller, more focused

3

set of higher risk activities at the border. Id. at 57. By serving as a force multiplier for DHS, the

4

projects will reduce DHS’ reliance on DoD for force protection, surveillance support, engineering

5

support, and air support, and thus allow DoD to focus its efforts on a smaller, more focused area. Id.

6

In addition, the Secretary received two separate reports from the Chairman of the Joint Chiefs

7

of Staff providing his views on whether and how border barrier projects would support the use of the

8

armed forces deployed to the border to support DHS. The Chairman provided a preliminary

9

assessment in February 2019, see AR at 119–24. That assessment concluded, among other things, that

10

constructing physical barriers in areas where military personnel are deployed could allow those forces

11

to be re-prioritized to other missions in support of DHS thereby enabling a more efficient use of DoD

12

personnel. See id. at 122–24. After receiving DHS’ recommendation, the Secretary requested that the

13

Chairman provide an updated and expanded report assessing a variety of factors analyzing how border

14

barriers could support the use of the armed forces. See id. at 97–98.

15

The Chairman’s final report, based on consultations with multiple DoD and DHS

16

components, identified four key factors upon which to assess whether the projects were necessary to

17

support the use of the armed forces at the southern border: 1) DHS’ prioritization of the projects; 2)

18

current migrant flows measured by apprehensions per month; 3) current troop dispositions and

19

support missions by CBP sector; and 4) the type of land upon which the proposed projects were to

20

be undertaken. See id. at 61–62. The Chairman then conducted a detailed analysis of these factors for

21

each border patrol sector where proposed construction would take place. See id. 63–70. The Chairman

22

analyzed, among other things, the type of proposed border barrier construction, the location and

23

mileage of each project, the number of DoD personnel deployed to each sector and the support

24

activities they provide to DHS, and the impact the barriers are expected to have on denying illegal

25

entry, channeling migrants to ports of entry, and increasing vanishing times along the southern border.

26

See id. For example, the Chairman concluded that barriers will reduce the areas where migrants can

27

cross easily, thereby reducing the need for DoD personnel to operate mobile surveillance camera as

28

well as conduct monitoring and detection operations between ports of entry. See id. at 68–70. In the

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17

1

end, the Chairman developed a prioritized list of border barrier projects and concluded that the

2

projects are necessary to support the use of the armed forces because they support those forces by

3

enabling more efficient use of DoD personnel, and may ultimately reduce the demand for military

4

support over time. Id. at 64. Contrary to States’ argument, see States’ Mot. at 12-13, the record explains

5

how the projects are necessary to support military personnel, separate and apart from any benefit the

6

projects provide to DHS.

7

Relying on the Chairman’s analysis and advice, as well as input from the U.S. Army Corps of

8

Engineers, DHS, and DoI, the Secretary of Defense determined that the border barrier projects

9

discussed above are necessary to support the use of the armed forces in connection with the national

10

emergency. See AR at 1–11; 42–48 (Secretary’s determination and summary of analysis regarding

11

necessity of border barriers). The Secretary concluded that the border barrier projects will deter illegal

12

entry, increase the vanishing time of those illegally crossing the border, and channel migrants to ports

13

of entry. See id. at 9. Thus, he determined, the projects will reduce the demand for DoD personnel

14

and assets at the locations where the barriers are constructed and allow the redeployment of DoD

15

personnel and assets to other high-traffic areas on the border without barriers. See id. Given the

16

extensive record supporting the Secretary’s decision, the Court should defer to his military judgment

17

that the barriers are necessary to support the use of military forces. See, e.g., Gilligan, 413 U.S. at 10.

18

V.

DoD’s Use of § 2808 Authority Was Not Arbitrary and Capricious.

19

The Secretary’s decision to undertake construction pursuant to § 2808 amply meets the APA’s

20

deferential arbitrary and capricious standard. The States’ claim that DoD acted arbitrarily and

21

capriciously by “fail[ing] to consider all factors relevant” to its § 2008 decision—specifically, the

22

alleged “harms to public health and safety arising from [] defunding . . . military construction projects”

23

in order to undertake the § 2808 projects—is without merit. States’ Mot. at 13.

24

Section 2808 expressly authorizes the Secretary to fund construction authorized under that

25

section with “funds that have been appropriated for military construction . . . that have not been

26

obligated.” See 10 U.S.C. § 2808 (a). The statute does not identify any factors that the Secretary must

27

consider in determining which military construction projects should be deferred in order to fund

28

§ 2808 projects. See H.R. Rep. 97-612 at 20 (June 17, 1982) (“The only restriction in [§ 2808(a)] is that

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1

the total cost of all projects undertaken must be within the unobligated amount of funds previously

2

appropriated for military construction and military family housing.”) (emphasis added). Rather, it

3

leaves such judgments to the Secretary’s broad discretion. See NFFE, 905 F.2d at 405–06.

4

Here, the record reflects that DoD exercised that discretion with the stated objective of

5

minimizing the effects of deferring existing military construction. Indeed, the Secretary directed the

6

Comptroller, through close consultation with DoD Components, to identify for deferral only “military

7

construction projects that are not scheduled for award until fiscal year 2020 or later[,]” AR at 13, “the

8

deferral of which would have a minimal effect on Component readiness[,]” id. at 5, and would be

9

consistent with the National Defense Strategy, id. at 94. And per the Secretary’s instructions, the

10

Comptroller prioritized deferrals “such that, initially, only [$1.8 billion of] funds associated with

11

deferred military construction projects outside of the United States will be made available[.]” Id. at 13.

12

The remaining funds associated with deferred domestic projects—like the projects the States

13

identify—will be made available as necessary once overseas funds are exhausted. Id. at 14. As the

14

Secretary explained, one purpose of “prioritizing funds in this manner is to provide [DoD] time to

15

work with [Congress] to determine opportunities to restore funds for these important military

16

construction projects[.]” Id.; see S. 1790, 116th Cong. § 2906 (bill to replenish deferred funds). Thus,

17

the Secretary cannot fairly be said to have inadequately weighed the potential impacts of deferring

18

existing military construction projects or to have insufficiently explained the rationale for selecting

19

which projects to defer, particularly given the “healthy deference” due military judgments. Rostker,

20

453 U.S. at 66; see Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Inc. Co., 463 U.S. 29, 43 (1983)

21

(agency must “examine the relevant data and articulate a satisfactory explanation for its action”);

22

Crickon v. Thomas, 579 F.3d 978, 982 (9th Cir. 2009) (APA review is “highly deferential”).

23

Because § 2808 does not identify factors DoD must consider in determining which military

24

construction projects to defer in order to fund § 2808 construction, this case is distinguishable from

25

the cases on which the States rely. See States Mot. at 14 (citing State Farm, 463 U.S. at 33 (statute

26

directing the Secretary of Transportation to consider “relevant available motor vehicle safety data” in

27

issuing motor vehicle safety standards that were “reasonable, practicable, and appropriate”) (quoting

28

15 U.S.C. § 1392(f)(1), (3), (4) (repealed 1994)), and Greater Yellowstone Coalition, Inc. v. Servheen, 665 F.3d

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19

1

1015, 1024 (9th Cir. 2011) (regulation requiring the Secretary of the Interior, when delisting an

2

endangered species, to determine that five particular factors would not threaten or endanger the

3

species) (citing 50 C.F.R. § 424.11(d)). The States are likewise incorrect that in utilizing its § 2808

4

authority DoD allegedly considered factors Congress did not intend it to consider. See States’ Mot. at

5

14-15.

6

appropriation for border barrier construction to DHS limits DoD’s ability to use other available

7

statutory authorities—like § 2808—for separate barrier construction. It does not. See infra at 21–24;

8

see also Donovan v. Carolina Stalite Co., 734 F.2d 1547, 1558 (D.C. Cir. 1984); Building & Const. Trades

9

Dep’t., AFL-CIO v. Martin, 961 F.2d 269, 273–74 (D.C. Cir. 1992).

This argument relies on the erroneous contention that Congress’s fiscal year 2019

10

Even where a statute sets forth specific factors for an agency to consider, if Congress “did not

11

assign the specific weight the [agency] should accord each of these factors, the [agency] is free to

12

exercise [its] discretion in this area.” New York v. Reilly, 969 F.2d 1147, 1150 (D.C. Cir. 1992); Brady v.

13

FERC, 416 F.3d 1, 6 (D.C. Cir. 2005); see also Sec’y of Agric. v. Cent. Roig Ref. Co., 338 U.S. 604, 611

14

(1950) (where statutorily mandated “consideration[s]” are not “mechanical or self-defining standards,”

15

they indicate Congress’s recognition that they involve “wide areas of judgment and therefore of

16

discretion”). Here, no statute dictates the factors for DoD to consider in determining which yet-to-

17

be awarded military construction projects to defer in order to fund § 2808 construction. On the

18

contrary, the Secretary’s use of his § 2808 authority is committed to his discretion precisely because

19

(among other things) matters of military policy—including assessments of “military value”—are

20

“better left to those more expert in issues of defense.” NFFE, 905 F.2d at 406; see Dist. No. 1, Pac.

21

Coast Dist., Marine Eng’rs’ Beneficial Ass’n v. Mar. Admin., 215 F.3d 37, 41–42 (D.C. Cir. 2000).

22

Accordingly, Congress has not instructed DoD to give the considerations urged by the States

23

any particular weight—or, indeed, any weight at all. That any specific factors related to the projects

24

identified by the States did not receive conclusive weight in the final calculus, as the States contend

25

they should have, is therefore no reason to disturb DoD’s decision. See, e.g., Reilly, 969 F.2d at 1150.

26

The States have shown no “clear error” in DoD’s exercise of its discretionary judgment under § 2808

27

and thus their APA claim must fail. See State Farm, 463 U.S. at 43.

28

State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG
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20

1

VI.

2

DoD’s use of § 2808 is not unconstitutional. The States’ claims turn on the meaning and

3

DoD’s Use of § 2808 Does Not Violate the Constitution.

interpretation of § 2808—a purely statutory dispute with no constitutional dimension.

4

At the outset, the States’ lack a cause of action and cannot satisfy the zone-of-interests

5

requirement for constitutional claims under the separation of powers, Appropriations Clause, and

6

Presentment Clause. Just as their alleged sovereign, economic, and environmental injuries are entirely

7

unrelated to the limitation in § 2808 and the CAA, those injuries also do not fall within the asserted

8

constitutional limitations on Congress’s power to authorize emergency military construction.

9

In any event, the Supreme Court unanimously rejected the States’ constitutional argument in

10

Dalton v. Spector, 511 U.S. 462 (1994), explaining that not “every action by the President, or by another

11

executive official, in excess of his statutory authority is ipso facto in violation of the Constitution.” 511

12

U.S. at 472. The Supreme Court carefully “distinguished between claims of constitutional violations

13

and claims that an official has acted in excess of his statutory authority.” Id. (collecting cases). The

14

Constitution is implicated if executive officers rely on it as an independent source of authority to act—

15

which is not the case here—or if the officers rely on a statute that itself violates the Constitution. Id.

16

at 473 & n.5. But claims alleging that an official has “exceeded his statutory authority are not

17

‘constitutional’ claims.” Id. at 473. Dalton’s reasoning applies here and refutes the States’ argument

18

that they have a constitutional claim or cause of action. This case concerns “simply” whether the

19

Secretary has “exceeded his statutory authority” in authorizing the § 2808 projects; “no constitutional

20

question whatever is raised[,]” “only issues of statutory interpretation.” Id. at 473-74 & n.6.

21

In advancing a constitutional claim based on the separation of powers, the States make

22

precisely the argument the Supreme Court rejected in Dalton. Their claim hinges on the allegation that

23

DoD acted contrary to the will of Congress because it allegedly took actions contrary to statutory

24

limitations in the CAA. See States’ Mot. at 15–16. In any event, the fact that the CAA appropriates

25

funds to DHS for certain border-barrier construction, see Pub. L. No. 116-6, § 230(a), does not mean

26

that Congress impliedly prohibited DoD from using its permanent statutory authority to use its funding

27

for different border barrier projects in response to a national emergency. See Salazar v. Ramah Navajo

28

Chapter, 567 U.S. 182, 200 (2012) (“An agency’s discretion to spend appropriated funds is cabined only

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21

1

by the text of the appropriation.”); Tennessee Valley Auth. v. Hill, 437 U.S. 153, 190 (1978) (“doctrine

2

disfavoring repeals by implication applies with full vigor . . . when the subsequent legislation is an

3

appropriations measure”). Indeed, the entire point of § 2808 is to provide DoD with the flexibility to

4

undertake military construction projects and use military construction funds during a national

5

emergency outside of the normal, time-consuming congressional authorization and appropriations

6

process. See H.R. Rep. No. 97-44, at 72 (1981) (§ 2808 provides “authority to immediately restructure

7

construction priorities”). The States try to create a statutory conflict between the CAA and § 2808

8

where none exists, and in doing so violate the principle that where two statutes “are capable of

9

coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the

10

contrary, to regard each as effective.” See J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S.

11

124, 143–44 (2001). Because Congress has statutorily authorized the conduct at issue, there can be

12

no concerns that DoD is usurping “Congress’s constitutionally-mandated power” to asses and

13

determine “permissible spending.” California v. Trump, 379 F. Supp. 3d 928, 949 (N.D. Cal. 2019).

14

Nor does DoD’s use of § 2808 “violate the Constitution’s separation of powers principles” by

15

providing “unbounded authorization for Defendants to rewrite the federal budget.” Id. Congress has

16

long provided agencies with “lump-sum appropriation[s],” and agencies’ delegated authority over

17

“[t]he allocation of [such] funds” is not only constitutional, but “committed to agency discretion by

18

law” and “accordingly unreviewable.” Lincoln v. Vigil, 508 U.S. 182, 192–93 (1993). Given that

19

Congress could have granted DoD unfettered discretion over its total budget, Congress’ decision to

20

provide DoD with a more limited authority to reallocate unobligated military construction funds to

21

emergency military construction projects does not pose constitutional concerns.

22

The States also claim a separation of powers violation based on the assertion that use of § 2808

23

is prohibited by § 739 of the CAA. See States’ Mot. at 16. Section 739 states, “None of the funds

24

made available in this or any other appropriations Act may be used to increase, eliminate, or reduce

25

funding for a program, project, or activity as proposed in the President’s budget request for a fiscal

26

year until such proposed change is subsequently enacted in an appropriation Act, or unless such

27

change is made pursuant to the reprogramming or transfer provisions of this or any other

28

appropriations Act.” Pub. L. No. 116-6, div. D, § 739. The States’ argument rests upon a faulty

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22

1

premise: that barrier construction undertaken pursuant to separate funding and statutory authority

2

under § 2808 is somehow adding money to DHS’ appropriation in the CAA. See id. § 230. It is not.

3

There is no violation of § 739 because DoD is not adding additional money to a “program, project,

4

or activity” within one of DHS’ budget accounts, as that term is understood in the appropriations

5

context. See Government Accountability Office (GAO), A Glossary of Terms Used in the Federal Budget

6

Process 80 (Sept. 2005) (defining “program, project, or activity” as an “[e]lement within a budget

7

account”); see 31 U.S.C. § 1112 (GAO is statutorily required to publish and maintain standard terms

8

related to the federal budget process). The fact that § 2808 provides DoD with independent authority

9

to construct border barriers does not transform DoD’s use of its military construction authorities into

10

an excess infusion of money to an entirely separate DHS appropriation.5

11

The States’ Appropriations Clause claim also fails. The Appropriations Clause simply requires

12

that money drawn from the Treasury must be “in Consequence of Appropriations made by Law.”

13

U.S. Const., art. I, § 9, cl. 7. Accordingly, action undertaken pursuant to a federal statute like § 2808

14

that authorizes an expenditure “by Law” cannot violate the Appropriations Clause. See Harrington v.

15

Schlesinger, 528 F.2d 455, 457–58 (4th Cir. 1975) (statutory funding disputes turn solely on “the

16

interpretation and application of congressional statutes under which the challenged expenditures

17

either were or were not authorized,” not on a “controversy about the reach or application of” the

18

Appropriations Clause). The States nonetheless argue that DoD cannot use a general appropriation

19

for an expenditure where Congress has provided a more specific appropriation for the same

20

expenditure. See States’ Mot. at 17. But the case they cite, Nevada v. Department of Energy, 400 F.3d 9,

21

16 (D.C. Cir. 2005), stands for a much narrower, and inapposite, principle of statutory rather than

22

constitutional interpretation: namely, that when a single federal agency is determining which of two

23

appropriations to that agency should be used for a particular object or purpose, Congress presumptively

24

intends the agency to use its specific appropriation rather than its general appropriation. Here, DoD

25

is using its own appropriated funds for the § 2808 projects and the States cite no case for the

26

proposition that an appropriation of funds to one agency (here, to DHS in the CAA) can limit a

27
28

5

For these reasons, as well as the absence of a cause of action to enforce the CAA, the
Court should not follow the decision in El Paso Cty. v. Trump, No. EP-19-CV-66-DB, 2019 WL
5092396 (W.D. Tex. Oct. 11, 2019), that use § 2808 violates the CAA.
State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG
Defs.’ Motion for Partial Summary Judgment re: 2808 and Opp. to Pls.’ Motion for Summary Judgment
23

1

second agency (DoD) from using its own separate appropriations, let alone violate the Appropriations

2

Clause. Indeed, the GAO—the independent, nonpartisan arm of Congress charged with auditing

3

Executive spending— recently concluded that DoD did not violate the general-specific appropriation

4

principle in using §§ 8005 and 284 for border barrier construction even though Congress had

5

appropriated funds to DHS for such construction in the CAA. See GAO Opinion B-330862 at 13–

6

15 (Sept. 5, 2019) (Exhibit 8) (citing prior GAO opinions). The same reasoning applies equally to

7

DoD’s use of § 2808 and provides further support to deny the States’ Appropriations Clause claim.

8

Additionally, the States assert that § 2808 violates the Presentment Clause because it allows

9

DoD to “effectively amend” the appropriations Congress provided in CAA without following the

10

procedures in Article I, § 7. See States’ Mot. at 17–18. But § 2808 does not empower any executive

11

official to amend or repeal any law, actually or effectively, and is in no way comparable to Clinton v.

12

City of New York, 524 U.S. 417 (1998), which held the Line Item Veto Act unconstitutional because it

13

purported to authorize the President to “cancel in whole” portions of enacted statutes. Id. at 435–37.

14

The CAA remains in effect, and the Presentment Clause does not prevent DoD from acting pursuant

15

to other duly enacted statutes to fund additional border barrier construction. The Court should also

16

reject the States’ argument that the structure of the National Emergencies Act (NEA) violates the

17

Presentment Clause. See States’ Mot. at 19. The NEA was amended in 1985, following with INS v.

18

Chadha, 462 U.S. 919, 95 (1983), precisely to avoid any Presentment Clause problem and currently

19

authorizes Congress to terminate a national emergency upon enactment of a joint resolution enacted

20

pursuant to Art. I., § 7, cl. 2. See 50 U.S.C. § 1622. The fact that legislative action must be presented

21

to the President, and, if he disapproves, to be repassed by two-thirds of the Senate and House is a

22

hallmark of our constitutional system, not a violation of it.

23

VII.

NEPA Does Not Apply to the § 284 or § 2808 Border Barrier Projects.

24

The Court should reject the States’ arguments that Defendants violated NEPA by failing to

25

conduct environmental reviews of the § 284 and § 2808 border barrier projects. First, as this Court

26

previously held, the States’ NEPA claim against the § 284 projects fails because the Secretary of

27

Homeland Security has waived NEPA’s application pursuant to § 102 of the Illegal Immigration

28

Reform and Immigrant Responsibility Act. See Determinations Pursuant to IIRIRA, 84 Fed. Reg.

State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG
Defs.’ Motion for Partial Summary Judgment re: 2808 and Opp. to Pls.’ Motion for Summary Judgment
24

1

17185-87 (Apr. 24, 2019); 21798-801 (May 15, 2019). The Court rejected the States’ NEPA argument

2

in its preliminary injunction opinion in this case, see California, 379 F. Supp. 3d at 953–55, and

3

reaffirmed that same decision in issuing final judgment in the Sierra Club case. See Sierra Club v. Trump,

4

No. 19-CV-892-HSG, 2019 WL 2715422, at *3 (N.D. Cal. June 28, 2019). The States do not present

5

any new arguments here to warrant a different conclusion.

6

Second, the States’ NEPA claims against the § 2808 projects should be dismissed because

7

§ 2808 authorizes the Secretary of Defense to undertake emergency military construction projects

8

“without regard to any other provision of law.” As noted above, this broad language sweeps aside all

9

statutory and regulatory provisions, such as NEPA, that might otherwise constrain or impede the

10

activities authorized by § 2808, including construction and acquisitions of land. See Cisneros, 508 U.S.

11

at 18; Novak, 476 F.3d at 1046.

12

To be sure, non-obstante clauses are “not always construed literally” and courts often assess the

13

scope of the clauses “by taking into account the whole of the statutory context.” Id. at 1046. Here,

14

however, the statutory context supports interpreting § 2808’s “without regard to” clause as broadly as

15

it is written. Section 2808 applies only “[i]n the event of a declaration of war or the declaration by the

16

President of a national emergency,” and Congress drafted the statute to give DoD great flexibility

17

during such times to engage in emergency construction projects necessary to support the use of the

18

armed forces. See H.R. Rep. No. 97-44, at 72 (1981). There is no evidence to suggest Congress

19

intended for DoD to engage in the potentially lengthy process of complying with environmental

20

statutes such as NEPA prior to engaging in military construction during a time of war or national

21

emergency. Moreover, Congress omitted from § 2808 other types of restrictions it has imposed for

22

other emergency military construction authorities.

23

construction in a broader range of emergencies but without a non-obstante clause and imposing a report-

24

and-wait requirement before construction can proceed). Indeed, Congress knows how to limit the

25

scope of “without regard to” clauses when it wants to do so. Compare 12 U.S.C. § 1702 (Secretary of

26

Housing and Urban Development authorized to take action “without regard to any other provisions

27

of law governing the expenditure of public funds”). Had Congress wanted to limit the scope of the

28

clause in § 2808 solely to enable DoD to disregard appropriations laws, it could have said so expressly.

See 10 U.S.C. § 2803 (authorizing military

State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG
Defs.’ Motion for Partial Summary Judgment re: 2808 and Opp. to Pls.’ Motion for Summary Judgment
25

1

See 50 U.S.C. § 3038(c) (“without regard to the provisions of law or regulation relating to the

2

expenditure of Government funds”). Congress did not restrict the clause to a particular subject

3

matter, thus laws such as NEPA that would impede § 2808 construction must give way. See Nat’l Coal.

4

to Save Our Mall v. Norton, 161 F. Supp. 2d 14, 21 (D.D.C.), aff’d 269 F.3d 1092 (D.C. Cir. 2001).

5

Third, the States incorrectly argue that DoI should have complied with NEPA before

6

transferring land to DoD for the § 2808 projects. See States’ Mot. at 20–21. The States cannot assert

7

this claim because their complaint does not raise a NEPA claim against DoI related to the transfer of

8

land. See Amended Complaint ¶¶ 392–99 (NEPA claims against only DHS for barrier construction).

9

The States cannot move for summary judgment on a claim that they did not plead in the complaint.

10

See, e.g., Wasco Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006). Moreover, § 2808’s

11

“without regard to” clause would apply to DoI’s transfer of land, as NEPA compliance would impose

12

a legal restriction upon DoI’s transfers of land that indirectly burdens DoD’s use of § 2808.

13

In any event, NEPA does not apply to the DoI’s land transfer because the transfer was made

14

pursuant to the non-discretionary emergency withdrawal authority under FLPMA. See 43 U.S.C.

15

§ 1714(e); see Public Land Order Nos. 7883–87, 84 Fed. Reg. 50063–65 (Sept. 24, 2019). FLPMA

16

defines a “withdrawal” to mean, among other things, “transferring jurisdiction over an area of Federal

17

land, other than ‘property’ governed by the [Property Act] from one department, bureau or agency,

18

to another department, bureau, or agency.” 43 U.S.C. § 1702(j). FLPMA further requires that the

19

Secretary of the Interior “shall immediately make a withdrawal” of land when he determines “that an

20

emergency situation exists and that extraordinary measures must be taken to preserve values that

21

would otherwise be lost[.]” 43 U.S.C. § 1714(e) (emphasis added); 43 C.F.R. § 2310.5. Because of the

22

emergency nature of the land withdrawal at issue here—and because it is mandatory under FLPMA

23

that the Secretary make such a withdrawal immediately—compliance with NEPA is not required. State

24

of Alaska v. Carter, 462 F. Supp. 1155, 1160-61 (D. Alaska 1978) (holding that an emergency withdrawal

25

does not require compliance with NEPA because such compliance would conflict with FLPMA’s

26

command that withdrawals be made “immediately”); see Flint Ridge Dev. Co. v. Scenic Rivers Assoc., 426

27

U.S. 776, 788 (1976) (holding that NEPA compliance is not required where a statute provided the

28

agency only 30 days to act); Westlands Water Dist. v. Nat. Res. Def. Council, 43 F.3d 457, 460 (9th Cir.

State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG
Defs.’ Motion for Partial Summary Judgment re: 2808 and Opp. to Pls.’ Motion for Summary Judgment
26

1

1994) (“An irreconcilable conflict is created if a statute mandates a fixed time period for

2

implementation and this time period is too short to allow the agency to comply with NEPA.”). Here,

3

“Congress did not give the Secretary discretion over when he may carry out his duties,” Westlands

4

Water Dist., 43 F.3d at 460, and “imposed an unyielding statutory deadline for agency action.” Jamul

5

Action Comm. v. Chaudhuri, 837 F.3d 958, 964 (9th Cir. 2016). Accordingly, there is “clear and

6

unavoidable conflict” between NEPA and FLPMA’s emergency withdrawal requirement, thus

7

“NEPA must give way.” Flint Ridge, 426 U.S. at 788.

8

VIII. The States Have Not Met The Requirements For A Permanent Injunction.

9

The Court should deny the States’ request for a permanent injunction. See States’ Mot. at 1.

10

“[A] plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant

11

such relief. A plaintiff must demonstrate: “(1) that it has suffered an irreparable injury; (2) that

12

remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3)

13

that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is

14

warranted; and (4) that the public interest would not be disserved by a permanent injunction.” eBay

15

Inc. v. MercExchange, LLC., 547 U.S. 388, 391 (2006). Even if the States were to prevail on the merits

16

of their claims, permanent “injunctive relief is not automatic, and there is no rule requiring automatic

17

issuance of a blanket injunction when a violation is found.” See N. Cheyenne Tribe v. Norton, 503 F.3d

18

836, 843 (9th Cir. 2007). A permanent “injunction is a matter of equitable discretion; it does not

19

follow from success on the merits as a matter of course.” Winter, 555 U.S. at 32.

20

A.

The States Have Not Established an Irreparable Injury.

21

1.

The States Have Not Established Irreparable Injury to the Environment.

22

California and New Mexico allege that the construction of the border wall projects in the

23

States will harm their interests in wildlife management. Specifically, California argues that the

24

extremely limited construction from the San Diego 4, San Diego 11, and Yuma 6 projects will threaten

25

the Quino Checkerspot Butterfly, Coastal California Gnatcatcher, Western Burrowing owl, various

26

vernal pool species, “rare plants” including the Tecate Cypress, Yuma Ridgeway’s Rail, Southwestern

27

Willow Flycatcher, Western Yellow-billed Cuckoo, Flat-tailed Horned Lizard, and the Sonoran Mud

28

Turtle. States Mot. at 27–29. Notably, California submits no evidence of environmental harm for El

State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG
Defs.’ Motion for Partial Summary Judgment re: 2808 and Opp. to Pls.’ Motion for Summary Judgment
27

1

Centro 5 and 9. New Mexico argues that construction of El Paso 2 and El Paso 8 will fragment habitat

2

and block wildlife corridors for the White-sided Jackrabbit and Northern Jaguar. Id. at 29–30. The

3

States’ arguments lack merit; California and New Mexico’s speculative fears about construction

4

impacts and cross-border migration do not satisfy their burden to show population-level impacts are

5

likely absent an injunction. The States’ environmental allegations fail to demonstrate the requisite

6

likely irreparable harm for permanent injunctive relief. See generally Beehler Decl.

7

At the preliminary injunction stage for the § 284 challenge, this Court held that “the

8

irreparable-injury requirement does not require a showing of population-level harm or an extinction-

9

level threat.” California, 379 F. Supp. 3d at 956. To be clear, it has never been the United States’

10

position that a showing of an extinction-level threat is required. See id. at 967 n.19. But because the

11

States’ interest is not in individual animals—and rather in managing a species (or distinct populations

12

of a species) within their borders—the States must show species or population level harm of a

13

“permanent or at least of long duration, i.e., irreparable.” AMOCO Prod. Co. v. Village of Gambell, 480

14

U.S. 531, 545 (1987); see also New Mexico Dept. of Game & Fish v. U.S. Dept. of Interior, 854 F.3d 1236,

15

1253 (10th Cir. 2017) (holding that New Mexico had failed to establish irreparable harm to “the State’s

16

ungulate herds, as opposed to individual members of those herds”). The States may meet this burden

17

only through showing a “definitive threat” of future harm “to protected species, not mere

18

speculation.” Nat’l Wildlife Fed’n v. Burlington N.R.R., 23 F.3d 1508, 1512 n.8 (9th Cir. 1994). By

19

attempting to prove up population-level harms, the States impliedly agree to this standard. See, e.g.,

20

ECF No. 220-1 at 5 ¶ 17 (alleging “irreparable harm to the Quino Checkerspot Butterfly population”);

21

id. at 6 ¶ 20 (alleging a “substantial reduction of the population [of the Coastal California Gnatcatcher]

22

in the area, and irreparable harm to the species and its habitat”).

23

But the States’ efforts fall short. For example, California—through the Clark Declaration—

24

alleges that the Quino Checkerspot Butterfly “has been documented to occur within the [San Diego

25

4] project area,” and speculates that the individual diapausing larvae could be taken during

26

construction before stating in conclusory fashion that the theoretical death of any larvae in the

27

construction footprint “will cause irreparable harm to the Quino Checkerspot Butterfly population.”

28

Id. at 9-10 ¶¶ 15-17. This cannot carry the States’ burden. Despite having been on a field visit of the

State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG
Defs.’ Motion for Partial Summary Judgment re: 2808 and Opp. to Pls.’ Motion for Summary Judgment
28

1

area, id. at 9 ¶ 14, Mr. Clark does not allege to have even seen any Quino Checkerspot Butterfly in the

2

project area, but instead only posits that they could be present. Id. at 10 ¶ 17. While Mr. Clark argues

3

that “a lack of sightings in any given year does not necessarily mean that the species is not present,”

4

id. at 10 ¶ 15, the conclusion that “the species is present” in the narrow construction footprint plainly

5

does not follow. Id. at 10 ¶ 17. Further, even assuming arguendo that the butterfly is present, Mr. Clark

6

offers no support for his conclusion that the possible take of any larvae from construction impacts

7

would cause irreparable harm to the population. See id.

8

The same is true of California’s allegations regarding the Coastal California Gnatcatcher.

9

Unlike the Quino Checkerspot Butterfly, Mr. Clark alleges to have actually “detected” a gnatcatcher—

10

two miles northwest of the project area. Id. at 11 ¶ 19.6 Mr. Clark theorizes that construction of the

11

border wall “will destroy essential habitat for numerous gnatcatcher pairs” and that associated road

12

construction will expand the construction impacts beyond the narrow law enforcement corridor. Id.

13

at 11 ¶ 20. This is inaccurate. DoD is including construction Best Management Practices (“BMPs”)

14

from prior CBP work in the area as well as other measures to minimize environmental impacts

15

associated with construction. Beehler Decl. ¶¶ 33–58. The Court previously credited similar

16

mitigation measures in finding that the States’ had not established irreparable injury for the § 284

17

projects. See California v. Trump, 2019 WL 2715421, at *4 & n.9 (N.D. Cal. June 28, 2019). The Corps

18

is also utilizing Environmental Support Teams, who meet with other resource agencies to develop

19

additional mitigation measures including avoiding—to the extent possible—impacts to sensitive areas

20

or species. Beehler Decl. ¶¶ 36–39. Further, the San Diego 4 area already has existing patrol roads,

21

id. at ¶ 10, and construction will utilize established roads to the maximum extent practicable. Id. at ¶

22

34. And even if some gnatcatcher habitat is lost due to unavoidable construction impacts, Mr. Clark

23

offers no support for his conclusion that population-level impacts will result. ECF No. 220-1 at 11

24

¶ 20.

25
26
27
28

6

The United States Fish and Wildlife Service has not conducted surveys to assess whether
the Quino Checkerspot Butterfly or Coastal California Gnatcatcher are actually present in the San
Diego 4 project area. California does not appear to have done so either. Instead, California
speculates the two species are present based on habitat designations and a single site visit that did
not reveal a single member of either species in the construction area. That any members of these
species are even present in the small construction footprint for San Diego 4 is entirely speculation.
State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG
Defs.’ Motion for Partial Summary Judgment re: 2808 and Opp. to Pls.’ Motion for Summary Judgment
29

1

California’s allegations regarding the Western Burrowing Owl fare no better. Mr. Clark points

2

to owl burrows found over two years ago in areas west of San Diego 4 and implies that burrowing

3

owls may be present in the project area. Id. at 13 ¶ 24. He then concludes that border wall construction

4

will flush burrowing owls and that construction would otherwise “hasten the decline of this last

5

breeding population in coastal southern California.” Id. at 8 ¶ 6. There is no evidence before this

6

Court that there are any burrowing owls in the San Diego 4 project area. But if there are, the Corps

7

has special mitigations in place to avoid harming burrowing owls, including surveys to locate any

8

burrows thirty days before construction begins, 250-foot buffer zones around active burrows that can

9

be avoided, and special protocols before collapsing any occupied burrows designed to protect eggs

10

and young owls. Beehler Decl. ¶ 62. Further, even if some owls are displaced or taken due to

11

construction impacts, Mr. Clark’s conclusion that this will “hasten the decline” of the owl is conclusory

12

and unsupported.

13

California’s remaining wildlife harm allegations are weaker still. Mr. Clark alleges that “several

14

recent biological surveys on private properties have found . . . vernal pools and numerous rare and

15

endangered species with them.” ECF No. 220-1 at 15 ¶ 32. But construction in San Diego 4 is taking

16

place on federal land adjacent to the border, and despite a site visit, Mr. Clark cannot even allege any

17

vernal pools are within the San Diego 4 construction footprint. As to San Diego 11, Mr. Clark presents

18

a list of “California State Species of Special Concern” he alleges could be present in the project area,

19

but offers no evidence that they are present in the construction footprint nor how any incidental take

20

would harm California’s interest in managing a population. Id. at 16-17 ¶ 34. The same is true of

21

California’s allegations regarding Yuma 6. Id. at 18-19 ¶¶ 35-36. California’s wildlife harms fall far

22

short of demonstrating an irreparable harm warranting an injunction.

23

New Mexico argues that some species, including the Northern Jaguar and the White-sided

24

Jackrabbit, will be harmed through a loss of connectivity to Mexico due to border wall construction

25

in El Paso 2 and 8. See States’ Mot. at 30. As the States concede, border wall construction is only

26

taking place in areas “adjacent” to jaguar critical habitat. Id. The United States Fish and Wildlife

27

Service (“USFWS”) has only detected seven jaguars in the United States since 1982, all occurring

28

within designated critical habitat, which for the jaguar serves as a migration corridor into Northern

State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG
Defs.’ Motion for Partial Summary Judgment re: 2808 and Opp. to Pls.’ Motion for Summary Judgment
30

1

Mexico. Beehler Decl. ¶ 64. El Paso 2 and 8 will thus not disrupt the jaguar’s migration corridor into

2

Mexico, as shown by New Mexico’s own exhibits, because construction will not occur in the critical

3

habitat migration corridors. See ECF 220-1 at 106, 108 (showing critical habitat abutting unfenced

4

portions of the border).

5

The White-sided Jackrabbit is not listed under the Endangered Species Act, and USFWS has

6

not conducted surveys to determine whether the species is present in the El Paso 2 and 8 project areas.

7

Assuming arguendo that they are, Declarant Traphagen alleges that the population has already been

8

injured by CBP patrol activity and will be further harmed by a loss of connectivity to Mexico. Id. at

9

75-76 ¶ 19. USFWS has rejected New Mexico’s argument that vehicle strikes associated with CBP

10

enforcement has caused the jackrabbit to decline. Beehler Decl. ¶ 65. Border wall construction at El

11

Paso 2 and 8 will not extend—nor cut off connectivity with Mexico—across the entire Animas Valley

12

and, in any event, USFWS has also determined that jackrabbit populations in the United States are

13

“peripheral populations occurring in an area where the species was never known to be abundant” and

14

not significant to the species. Id. New Mexico has not shown that their interests in the jackrabbit will

15

be irreparably harmed by construction in El Paso 2 and 8.

16

Finally, both California and New Mexico allege that border wall construction could impact the

17

states’ air quality, and California alleges that border wall construction could impact the state’s water

18

quality. States’ Mot. at 22-25. To the extent this Court considers these allegations as environmental

19

injuries, neither warrant injunctive relief. As to air quality, the Corps will implement control

20

measures—including watering unearthed soil—to minimize fugitive dust leaving the work site during

21

construction. Beehler Decl. ¶ 55. Post construction, the Corps will implement erosion protection

22

measures to prevent any long-term increase in particulate matter. Id. As to California’s water quality

23

concerns, the Corps has measures in place to prevent erosion and sedimentation during construction,

24

as well as long-term erosion controls post-construction. Id. at ¶¶ 56–57. The States have not shown

25

that they are entitled to injunctive relief on the basis of their alleged environmental harms.

26

2.

27

Third, eight States (Colorado, Hawaii, Maryland, New Mexico, New York, Oregon, Virginia,

28

and Wisconsin) argue that deferral of 17 military construction projects in those States will harm their

Loss of Tax Revenue is Not An Irreparable Injury.

State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG
Defs.’ Motion for Partial Summary Judgment re: 2808 and Opp. to Pls.’ Motion for Summary Judgment
31

1

local economies. See States’ Mot. at 30–32. But this theory of alleged harm is insufficient to confer

2

standing, let alone irreparable injury sufficient to warrant a permanent injunction. The States do not

3

claim that they would be the direct recipients of the money for the deferred military construction

4

projects. Instead, the States’ theory is that third party contractors who would receive the money will

5

now pay fewer taxes and not spend the money in ways that would enhance the States’ local economies.

6

But “virtually all federal policies” will have “unavoidable economic repercussions” on state tax

7

revenues, and accordingly, complaints about such losses typically amount to “the sort of generalized

8

grievance about the conduct of government, so distantly related to the wrong for which relief is

9

sought, as not to be cognizable for purposes of standing.” Pennsylvania v. Kleppe, 533 F.2d 668, 672

10

(D.C. Cir. 1976); see Iowa ex rel. Miller v. Block, 771 F.2d 347, 353 (8th Cir. 1985) (holding that there was

11

an insufficiently direct link between reduced tax revenue and federal disaster relief decisions to support

12

standing); Arias v. DynCorp, 752 F.3d 1011, 1015 (D.C. Cir. 2014) (holding that loss of tax revenue

13

from anti-drug herbicide-spraying operation resulting in damage to local crops local crops property

14

was insufficient to establish standing).

15

In Wyoming v. Oklahoma, the Supreme Court recognized standing to challenge “a direct injury

16

in the form of a loss of specific tax revenues,” but distinguished cases where “actions taken by United

17

States Government agencies [have injured their] econom[ies] and thereby caused a decline in general

18

tax revenues.” 502 U.S. 437, 448 (1992) (discussing Kleppe and Miller). In reaching that conclusion,

19

the Supreme Court emphasized that States must establish a direct link between the tax at issue and

20

the administrative action being challenged to meet the requirements for Article III standing. Wyoming

21

concerned a law enacted by Oklahoma that required Oklahoma utility companies to use a certain

22

percentage of Oklahoma coal. See 502 U.S. at 443–44. Prior to the law’s enactment, Oklahoma utility

23

companies used nearly 100% Wyoming coal, for which Wyoming charged a specific severance tax for

24

extracting coal from the state. Id. at 445. After the law’s enactment, Oklahoma businesses purchased

25

less Wyoming coal, reducing Wyoming’s severance tax revenues accordingly. Id. at 446–48. The

26

Supreme Court held that the direct link between Oklahoma’s law targeting coal usage and a specific

27

stream of tax revenue based on coal extraction was sufficient to support Wyoming’s standing to sue.

28

Id. at 447. The direct causal connection that the Supreme Court found critical to standing in Wyoming

State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG
Defs.’ Motion for Partial Summary Judgment re: 2808 and Opp. to Pls.’ Motion for Summary Judgment
32

1

is not present in this case, as the States merely assert a general allegation that they will lose anticipated

2

revenue because of “lost sales for contractors and subcontractors for the projects” and “various firms

3

in the supply chains.” States’ Mot. at 32; see People ex rel. Hartigan v. Cheney, 726 F. Supp. 219, 223–28

4

(C.D. Ill. 1989) (State of Illinois lacks standing to challenge closure of military base based on theory

5

that closure would reduce tax revenue and harm the State’s economy)

6

None of the cases cited by the States support their expansive theory of irreparable injury. See

7

id. at 31–32. Only one of the cases cited by the States even addresses Wyoming—California v. Azar, 911

8

F.3d 558, 574 (9th Cir. 2018)—and that case merely noted that the statute at issue differed from the

9

tax in Wyoming because it was not tied to the legislative decisions of other states. And to the extent

10

the States’ theory is that they effectively have parens patriae standing on behalf of contractors who

11

would otherwise be direct recipients of the funds, that they fails. States cannot stand as parens patriae

12

in claims against the federal government to protect the future taxable income that construction

13

companies might receive if awarded contracts for the deferred projects. See Alfred L. Snapp & Son, Inc.

14

v. Puerto Rico, ex rel., Barez, 458 U.S. 592, 610 n.16 (1982).

15

Moreover, the States do not present any evidence from any State official explaining how the

16

States will be irreparably injured by the alleged loss of tax revenue. “[E]conomic harm generally does

17

not constitute irreparable injury[.]” See, e.g., Calvillo Manriquez v. Devos, 345 F. Supp. 3d 1077, 1107

18

(N.D. Cal. 2018). Beyond the mere loss of expected tax revenue, there nothing is in the record

19

explaining how the State’ sovereign interests will be irreparably injured by the loss of this money. See

20

generally Declaration of Alison Reaser (ECF No. 221). The States cannot establish irreparable harm by

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merely asserting that they will not receive future anticipated tax revenue from contractors who would

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have successfully bid on the deferred projects.

23

B.

The Balance of Equities and Public Interest Weigh Against Injunctive Relief.

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The balance of equities and public interest also weigh decidedly in Defendants’ favor. See

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Nken v. Holder, 556 U.S. 418, 435 (2009) (holding that these factors merge when the government is a

26

party). The President has declared a national emergency because of the large number of aliens

27

attempting to cross the border and the huge quantities of illegal drugs that continue to be smuggled

28

across the border each year. See Proclamation; Veto Messages; see also Third Declaration of Millard

State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG
Defs.’ Motion for Partial Summary Judgment re: 2808 and Opp. to Pls.’ Motion for Summary Judgment
33

1

LeMaster (Exhibit 9) (summarize drug and crossing statistics in Fiscal Year 2019). As the Supreme

2

Court has recognized, the Government has “compelling interests in safety and in the integrity of our

3

borders.” Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656, 672 (1989). The President has also

4

determined that the unique skills and resources of the armed forces are required to confront this crisis.

5

See Proclamation; Veto Messages. Further, the Secretary of Defense has concluded that the § 2808

6

border barrier projects are necessary to support the use of the armed forces in the context of their

7

support to DHS at the southern border. The Government and the public thus have a compelling

8

interest in ensuring that its military forces are properly supported during active deployments and have

9

the necessary resources to ensure mission success. See Goldman, 475 U.S. at 507 (Courts must “give

10

great deference to the professional judgment of military authorities concerning the relative importance

11

of a particular military interest.”); Winter, 555 U.S. at 25 (military training and readiness are of the

12

“utmost importance to the Navy and the Nation”).

13

These interests “plainly outweigh[]” the States’ asserted injuries, just as the harms from

14

prohibiting the Navy’s sonar testing did when balanced against the plaintiffs’ observational and

15

scientific interests in Winter, 555 U.S. at 26, 33. Indeed, the States’ interests here are even less

16

substantial than those in Winter. As explained above, have not carried their burden to establish that

17

the § 2808 project will irreparably injure wildlife and their generalized complaints about harm to their

18

local economies are insufficient to establish standing, let alone irreparable harm.

19

The States also contend that an injunction must issue to protect their sovereign interest in

20

enforcing their environmental laws. See States’ Mot. at 21–26. But the possibility that a challenged

21

action may impair a State’s ability to enforce state law is not alone sufficient to justify injunctive relief,

22

particularly when the requested injunction would impair the federal government’s own sovereign

23

interest in supporting its armed forces pursuant to a federal statute. In enacting that statute, Congress

24

made a policy judgment that emergency military construction should take precedence over any laws

25

that would hinder such construction. And “when Congress so acts, the federal legislation necessarily

26

overrides conflicting state laws under the Supremacy Clause.” Kleppe v. New Mexico, 426 U.S. 529, 543

27

(1976); see also Idaho Bldg. & Const. Trades Council, AFL-CIO v. Wasden, 834 F. Supp. 2d 1091, 1102 (D.

28

Idaho 2011) (denying injunction because “the State and its officials do not have an interest in enforcing

State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG
Defs.’ Motion for Partial Summary Judgment re: 2808 and Opp. to Pls.’ Motion for Summary Judgment
34

1

a state law that is likely preempted by federal law”); Nat’l City Bank of Indiana v. Turnbaugh, 367 F. Supp.

2

2d 805, 822 (D. Md. 2005) (“Once it is determined that the state laws are preempted by federal law,

3

the harm the state may suffer if its laws are not enforced becomes irrelevant”). And to the extent the

4

States’ invocation of their sovereign interests turns on the environmental harms they allege, those

5

harms are themselves outweighed, as explained above.

6

The States’ argument that the Government will not be harmed by an injunction is similarly

7

misplaced. The States contend that amount of time that elapsed between the President’s proclamation

8

and the Secretary of Defense’s decision to authorize specific border barrier projects pursuant to § 2808

9

undermines the need for action. See States’ Mot. at 33. But there is no statutory obligation for the

10

Secretary to act at all, let alone act within a certain period of time—indeed, past Secretaries have

11

invoked § 2808 to authorize military construction projects years after a declared national emergency.

12

See supra at 6–7. The Secretary has broad discretion to address and decide when, where, and how

13

funds should be spent under this authority. Here, there is no basis to enjoin the § 2808 projects simply

14

because the Secretary undertook a deliberate process to reach his decision. The States also argue that

15

walls have not been historically effective at stopping unlawful entry, see States’ Mot. at 34, but they

16

provide no support for that assertion and the record establishes that barriers have proven extremely

17

effective at stopping drugs and migrants from entering the country. See AR at 50–57.

18

Given the lopsided balance of equities, it would be an abuse of discretion to award the

19

“extraordinary remedy” of a permanent injunction when the States have not made a “clear showing”

20

that they are entitled to such relief. Winter, 555 U.S. at 22.

21

CONCLUSION

22

For the foregoing reasons, the Court should grant Defendants’ motion for partial summary

23

judgment, deny the States’ motion for partial summary judgment, and enter final judgment for

24

Defendants on all claims related to the funding and construction of the § 2808 projects. A proposed

25

order is attached.

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State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG
Defs.’ Motion for Partial Summary Judgment re: 2808 and Opp. to Pls.’ Motion for Summary Judgment
35

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DATE: October 25, 2019

Respectfully submitted,
JAMES M. BURNHAM
Deputy Assistant Attorney General
JOHN G. GRIFFITHS
Director, Federal Programs Branch
ANTHONY J. COPPOLINO
Deputy Director, Federal Programs Branch
/s/ Andrew I. Warden
ANDREW I. WARDEN
Senior Trial Counsel (IN Bar No. 23840-49)
KATHRYN C. DAVIS
RACHAEL L. WESTMORELAND
MICHAEL J. GERARDI
LESLIE COOPER VIGEN
Trial Attorneys
U.S. Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, NW
Washington, D.C. 20530
Tel.: [phone]
Fax: [phone]

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JEFFREY BOSSERT CLARK
Assistant Attorney General
United States Department of Justice
Environment & Natural Resources Division
/s/ Tyler M. Alexander
TYLER M. ALEXANDER
(CA Bar No. 313188)
Natural Resources Section
Trial Attorney
PO Box 7611
Washington, DC 20044-7611
Tel: [phone]
Fax: [phone]
[e-mail]

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State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG
Defs.’ Motion for Partial Summary Judgment re: 2808 and Opp. to Pls.’ Motion for Summary Judgment