State of California et al v. Trump et al
Filing
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REPLY (re 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, 220 MOTION for Partial Summary Judgment Re Section 2808 and NEPA ) filed byCommonwealth of Virginia, State of California, State of Colorado, State of Hawaii, State of Maryland, State of New Mexico, State of New York, State of Oregon, State of Wisconsin. (Leslie, Heather) (Filed on 11/1/2019)
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XAVIER BECERRA
Attorney General of California
ROBERT W. BYRNE
SALLY MAGNANI
MICHAEL L. NEWMAN
Senior Assistant Attorneys General
MICHAEL P. CAYABAN
CHRISTINE CHUANG
EDWARD H. OCHOA
Supervising Deputy Attorneys General
BRIAN J. BILFORD
SPARSH S. KHANDESHI
LEE I. SHERMAN
JANELLE M. SMITH
JAMES F. ZAHRADKA II
HEATHER C. LESLIE
Deputy Attorney General
State Bar No. 305095
1300 I Street, Suite 125
P.O. Box 944255
Sacramento, CA 94244-2550
Telephone: (916) 210-7832
Fax: (916) 327-2319
E-mail: Heather.Leslie@doj.ca.gov
Attorneys for Plaintiff State of California
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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STATE OF CALIFORNIA et al.;
Case No. 4:19-cv-00872-HSG
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Plaintiffs, PLAINTIFF STATES OF CALIFORNIA,
COLORADO, HAWAII, MARYLAND,
v.
NEW MEXICO, NEW YORK, OREGON,
VIRGINIA, AND WISCONSIN’S REPLY
IN SUPPORT OF MOTION FOR
DONALD J. TRUMP, in his official capacity PARTIAL SUMMARY JUDGMENT
as President of the United States of America REGARDING SECTION 2808 AND
et al.;
NEPA, AND OPPOSITION TO
DEFENDANTS’ MOTION FOR
Defendants. PARTIAL SUMMARY JUDGMENT
Date:
Time:
Judge:
November 20, 2019
10:00 am
Honorable Haywood S. Gilliam,
Jr.
Trial Date:
None Set
Action Filed: February 18, 2019
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TABLE OF CONTENTS
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Page
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INTRODUCTION .......................................................................................................................... 1
LEGAL ARGUMENT .................................................................................................................... 2
I.
Defendants Cannot Preclude Judicial Review ........................................................ 2
A.
The States Have Ultra Vires and APA Causes of Action ........................... 2
1.
The Zone of Interests Test is Not Applicable to Ultra Vires
Claims ............................................................................................. 2
2.
Even if the Zone of Interests Test Applies, the States Fall
Within the Zone of Interests of § 2808 and the National
Emergencies Act ............................................................................. 3
B.
The Zone of Interests Test Does Not Apply to the States’ Separate
Constitutional Claims .................................................................................. 5
II.
Defendants Exceeded Their Authority under § 2808 .............................................. 6
A.
Defendants Cannot Satisfy § 2808’s Military Construction
Requirement by Simply Declaring that Border Barrier Projects in
California and New Mexico are Part of an Army Base in Texas ................ 6
B.
Defendants’ Border Barrier Projects Are Not “Necessary to
Support” the “Use of the Armed Forces”.................................................... 7
III.
Defendants’ Arbitrary and Capricious Actions Violate the APA ........................... 8
IV.
Defendants Violated the Constitution ..................................................................... 9
A.
Defendants’ Invocation of § 2808 Does Not Immunize Their
Constitutional Violations ............................................................................ 9
B.
Defendants Violated Separation of Powers Principles.............................. 12
C.
Defendants Violated the Appropriations Clause ....................................... 14
D.
Defendants Violated the Presentment Clause ........................................... 15
V.
Defendants Violated NEPA .................................................................................. 17
VI.
The States Are Entitled to a Permanent Injunction ............................................... 18
A.
Defendants’ Actions Irreparably Harm California and New Mexico ....... 18
1.
Defendants’ Actions Irreparably Harm California’s and
New Mexico’s Sovereign Interests in Enforcing Their State
Laws .............................................................................................. 18
2.
Defendants’ Actions Irreparably Harm California’s and
New Mexico’s Environment, Wildlife, and Natural
Resources ...................................................................................... 19
3.
The Cancellation of Military Construction Projects in
Colorado, Hawaii, Maryland, New Mexico, New York,
Oregon, Virginia, and Wisconsin Causes those States
Irreparable Financial Harm ........................................................... 22
a.
Lost Tax Revenue Is Cognizable Financial Harm ............ 22
b.
Lost Tax Revenue Constitutes Irreparable Harm .............. 24
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TABLE OF CONTENTS
(continued)
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B.
The Balance of Hardships and Public Interest Favor Granting a
Permanent Injunction ................................................................................ 25
CONCLUSION ............................................................................................................................. 25
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TABLE OF AUTHORITIES
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CASES
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Arias v. DynCorp
752 F.3d 1011 (D.C. Cir. 2014) ................................................................................................24
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Ariz. State Bd. for Charter Schools v. U.S. Dept. of Educ.
464 F.3d 1003 (9th Cir. 2006).....................................................................................................7
California v. Azar
911 F.3d 558 (9th Cir. 2018)...............................................................................................23, 24
Chamber of Commerce v. Reich
74 F.3d 1322 (D.C. Cir. 1996) ............................................................................................11, 12
City & Cty. of San Francisco v. Trump
897 F.3d 1225 (9th Cir. 2018)...................................................................................................13
City of Oakland v. Lynch
798 F.3d 1159 (9th Cir. 2015)...................................................................................................23
City of Olmsted Falls v. Fed. Aviation Admin.
292 F.3d 261 (D.C. Cir. 2002) ..................................................................................................22
City of Sausalito v. O’Neill
386 F.3d 1186 (9th Cir. 2004)...................................................................................................23
Clarke v. Sec. Indus. Ass’n
479 U.S. 388 (1987) ....................................................................................................................4
Clinton v. City of New York
524 U.S. 417 (1998) ................................................................................................11, 16, 17, 22
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Dalton v. Specter
511 U.S. 462 (1994) .......................................................................................................... passim
Dodds v. U.S. Dep’t of Educ.
845 F.3d 217 (6th Cir. 2016).......................................................................................................3
Duncan v. Walker
533 U.S. 167 (2001) ....................................................................................................................7
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eBay Inc. v. MercExchange, L.L.C.
547 U.S. 388 (2006) ..................................................................................................................18
Grupo Mexicano de Desarrollo SA v. All. Bond Fund, Inc.
527 U.S. 308 (1999) ..................................................................................................................12
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TABLE OF AUTHORITIES
(continued)
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Haitian Refugee Ctr. v. Gracey
809 F.2d 794 (D.C. Cir. 1987) ....................................................................................................2
Harrington v. Schlesinger
528 F.2d 455 (4th Cir. 1975).....................................................................................................15
Howard v. Comm’rs of Sinking Fund of the City of Louisville
344 U.S. 624 (1953) ....................................................................................................................4
In re Aiken Cty.
725 F.3d 255 (D.C. Cir. 2013) ..................................................................................................11
Iowa ex rel. Miller v. Block
771 F.2d 347 (8th Cir. 1985).....................................................................................................23
Kansas v. United States
249 F.3d 1213 (10th Cir. 2001).................................................................................................19
Koohi v. United States
976 F.2d 1328 (9th Cir. 1992).....................................................................................................9
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Lexmark Int’l, Inc. v. Static Control Components, Inc.
572 U.S. 118 (2014) ................................................................................................................3, 5
Lincoln v. Vigil
508 U.S. 182 (1993) ..................................................................................................................14
Mach Mining, LLC v. Equal Employ’t Opportunity Comm’n
135 S. Ct. 1645 (2015) ................................................................................................................4
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Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak
567 U.S. 209 (2012) ................................................................................................................3, 4
Motor Vehicles Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co.
463 U.S. 29 (1983) ..................................................................................................................8, 9
Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv.
524 F.3d 917 (9th Cir. 2008).....................................................................................................20
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Nevada v. Dep’t of Energy
400 F.3d 9 (D.C. Cir. 2005) ......................................................................................................14
Northwest Forest Res. Council v. Pilchuck Audubon Soc’y
97 F.3d 1161 (9th Cir. 1996).......................................................................................................5
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TABLE OF AUTHORITIES
(continued)
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Office of Pers. Mgmt. v. Richmond
496 U.S. 414 (1990) ..................................................................................................................15
Pennsylvania v. Kleppe
533 F.2d 668 (D.C. Cir. 1976) ..................................................................................................23
Robertson v. Methow Valley Citizens Council
490 U.S. 332 (1989) ..................................................................................................................17
Rodriguez v. Robbins
715 F.3d 1127 (9th Cir. 2013)...................................................................................................25
Salazar v. Ramah Navajo Chapter
567 U.S. 182 (2012) ..................................................................................................................13
Scheduled Airlines Traffic Offices, Inc. v. Dep’t of Defense
87 F.3d 1356 (D.C. Cir. 1996) ....................................................................................................4
State v. U.S. Bureau of Land Mgmt.
277 F. Supp. 3d 1106 (N.D. Cal 2017) .......................................................................................9
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Tennessee Valley Auth. v. Hill
437 U.S. 153 (1978) ..................................................................................................................13
United States ex rel. Schweizer v. Océ N.V.
677 F.3d 1228 (D.C. Cir. 2012) ................................................................................................11
United States v. MacCollom
426 U.S. 317 (1976) ..................................................................................................................12
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United States v. McIntosh
833 F.3d 1163 (9th Cir. 2016)...............................................................................................5, 14
Wasco Products, Inc. v. Southwall Techs., Inc.
435 F.3d 989 (9th Cir. 2006).....................................................................................................17
White Stallion Energy Ctr., LLC v. Envtl. Prot. Agency
748 F.3d 1222 (D.C. Cir. 2014) ..................................................................................................3
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Wyoming v. Oklahoma
502 U.S. 437 (1992) ..................................................................................................................23
Youngstown Sheet & Tube Co. v. Sawyer
343 U.S. 579 (1952) ......................................................................................................10, 12, 13
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TABLE OF AUTHORITIES
(continued)
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Zadvydas v. Davis
533 U.S. 678 (2001) ....................................................................................................................9
FEDERAL STATUTES
United States Code, Title 2
§ 691b(a) ...................................................................................................................................16
United States Code, Title 5
§§ 500-596 ........................................................................................................................ passim
United States Code, Title 6
§ 202 ............................................................................................................................................8
United States Code, Title 10
§ 284 ................................................................................................................................2, 17, 18
§ 2801(a) .....................................................................................................................................6
§ 2808 ................................................................................................................................ passim
§ 2808(a) .................................................................................................................................3, 7
United States Code, Title 16
§§ 1531-1544 ............................................................................................................................20
§ 1533(a)(3)(C)(i)......................................................................................................................20
United States Code, Title 42
§§ 4321-4370m-12 ..........................................................................................................2, 17, 18
§ 4332(C) ..................................................................................................................................17
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United States Code, Title 43
§§ 1701-1787 ............................................................................................................................18
§ 1714(e) ...................................................................................................................................18
United States Code, Title 50
§§ 1601-1651 ....................................................................................................................3, 4, 16
§ 1622(a)(1)...............................................................................................................................16
Consolidated Appropriations Act, Pub. L. No. 116-6, 133 Stat. 13 (2019)
§§ 230-32 ................................................................................................................12, 13, 14, 16
§ 739 ....................................................................................................................................13, 14
Line Item Veto Act of 1996, Pub. L. No. 104-130, 110 Stat. 1200 (1996) ..............................11, 16
National Defense Authorization Act for Fiscal Year 1991, Pub. L. No. 101-510,
104 Stat. 1485 (1991)
§ 2904(a) ...................................................................................................................................11
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TABLE OF AUTHORITIES
(continued)
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U.S. CONSTITUTIONAL PROVISIONS
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United States Constitution
Article I § 7, cl. 2 ..........................................................................................................11, 15, 16
Article I § 9, cl. 7 ..........................................................................................................11, 14, 15
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COURT RULES
Federal Rules of Civil Procedure
Rule 8(a) ....................................................................................................................................17
Rule 9(b)....................................................................................................................................17
Federal Rules of Evidence
Rule 602 ....................................................................................................................................18
FEDERAL REGULATIONS
74 Federal Register 28,801 (June 17, 2009) ...................................................................................20
75 Federal Register 53,618 (Sept. 1, 2010).....................................................................................21
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OTHER AUTHORITIES
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General Accountability Office Opinion, B-139510 (May 13, 1959) ..............................................15
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Michael J. Vassalotti & Brendan W. McGarry, Cong. Research Serv., IN11017,
Military Construction Funding in the Event of a National Emergency (Jan. 11,
2019) ...........................................................................................................................................6
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S. Rep. No. 94-1168 (1976) ..............................................................................................................4
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INTRODUCTION
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Defendants’ opposition and motion for partial summary judgment (Defs.’ Brief) does
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nothing to alter this Court’s earlier preliminary view that Defendants’ contorted use of § 2808 is
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unlawful. The States are suitable, reasonable, and predictable challengers to Defendants’ actions,
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and their interests are congruent with the provisions they seek to enforce. Further, in attempting to
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defend their latest diversion of funds for the border wall, Defendants are forced to adopt a
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sweeping and unprecedented interpretation of their authority under § 2808 that renders the
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statutory restrictions on that authority essentially meaningless. Abandoning their previous
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arguments on this point, Defendants now assert any site can be treated as a military installation
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under § 2808 so long as it is administratively assigned to an existing installation. Based on this
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logic, they argue that proposed border barriers in California and New Mexico qualify as
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construction related to a military installation because they have been assigned to a base in Texas
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hundreds of miles away. Defendants also contend that a project may be deemed to support the
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armed forces under § 2808 if it assists armed forces to support actions by a civilian agency, which
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allows them to use § 2808 to fund any activity to which they assign military forces, rendering this
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restriction meaningless as well. Far from reconciling these expansive interpretations with
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established principles of statutory interpretation, Defendants urge this Court to ignore such
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principles.
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Defendants’ other arguments concerning the merits are equally unpersuasive. Unable to
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dispute that they failed to consider public health and safety in diverting funds, Defendants ask this
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Court to rule that their diversion decisions are not subject to review under the Administrative
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Procedure Act (APA). In addition, they recycle their previous arguments that the States have no
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statutory or constitutional causes of action, which this Court correctly rejected.
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Defendants’ objections to a permanent injunction are unavailing as well. They fail to rebut
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the States’ demonstration that they will suffer irreparable injury to their sovereign interests,
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natural resources, and tax revenues absent a permanent injunction. And in arguing that the
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balance of hardships and public interest weigh against injunctive relief, Defendants fail to address
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the public interest in such relief demonstrated as by the States and their amicus curiae. They ask
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this Court to deny relief based on their interest in continuing to engage in unlawful and
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unconstitutional behavior.
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This Court should grant the States’ motion for partial summary judgment regarding § 2808
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and the National Environmental Policy Act (NEPA) (States’ Op. Brief), deny Defendants’
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motion, and enjoin Defendants from: (a) defunding military construction projects located within
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the States and constructing border barriers in California and New Mexico under § 2808; and (b)
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constructing border barrier projects under § 2808 and § 284 until Defendants have complied with
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NEPA.
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LEGAL ARGUMENT
I.
DEFENDANTS CANNOT PRECLUDE JUDICIAL REVIEW
A.
The States Have Ultra Vires and APA Causes of Action
1.
The Zone of Interests Test is Not Applicable to Ultra Vires Claims
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The States have an ultra vires claim as Defendants do not dispute that the States have
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Article III standing and nothing more is required for such equitable claims. Moreover, this Court
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previously ruled the zone of interests test “has no application in an ultra vires challenge, which
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operates outside of the APA framework . . . .” Order re: Pls.’ Partial Mot. for Summ. J. 4,
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California v. Trump (California) (June 28, 2019), No. 19-cv-872, ECF 185; see also Haitian
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Refugee Ctr. v. Gracey, 809 F.2d 794, 811 n.14 (D.C. Cir. 1987) (“Appellants need not, however,
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show that their interests fall within the zones of interests of the constitutional and statutory
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powers invoked by the President in order to establish their standing to challenge the interdiction
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program as ultra vires.”). As this Court observed, where a party contends that an executive officer
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has exceeded the authority conferred by a statute, “[i]t would not make sense to demand that
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Plaintiffs—who otherwise have standing—establish that Congress contemplated that the statutes
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allegedly violated would protect Plaintiffs’ interests.” Order re Pls. Mot. for Prelim. Inj. 30,
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Sierra Club v. Trump, No. 19-cv-892 (May 24, 2019), ECF 144 (Sierra Club PI Order).
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Although Defendants assert in a footnote this Court “erred” in making this ruling, they
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make no attempt to identify the supposed error. Defs.’ Br. 10 n.3. They merely point to the
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Supreme Court’s stay order regarding a different funding source in the Sierra Club’s related case.
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Id. Such a preliminary ruling, however, “does nothing more than show a possibility of relief,”
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Dodds v. U.S. Dep’t of Educ., 845 F.3d 217, 221 (6th Cir. 2016), and far from determining that
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the zone of interests test applies to equitable ultra vires claims, the order at issue stated only that
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“the Government has made a sufficient showing at this stage that the [Sierra Club] plaintiffs have
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no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005.”
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Order on Appl. for Stay, Trump v. Sierra Club, No. 19A60 (U.S. July 26, 2019) (emphasis
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added). The stay order provides no grounds for this Court to abandon its prior analysis.
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2.
Even if the Zone of Interests Test Applies, the States Fall Within the
Zone of Interests of § 2808 and the National Emergencies Act
In any event, the States fall within the zone of interests of § 2808 and the National
Emergencies Act (NEA) for purposes of their APA and, to the extent relevant, ultra vires claims.
The zone of interests test under the APA is “generous,” Lexmark Int’l, Inc. v. Static Control
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Components, Inc., 572 U.S. 118, 130 (2014) (internal citation and quotation marks omitted), and
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“not meant to be especially demanding.” Match-E-Be-Nash-She-Wish Band of Pottawatomi
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Indians v. Patchak, 567 U.S. 209, 224-225 (2012) (quoting Clarke v. Sec. Indus. Ass’n, 479 U.S.
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388, 399 (1987)). “The test forecloses suit only when a plaintiff’s interests are so marginally
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related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be
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assumed that Congress intended to permit the suit.” Id. at 225 (internal citation and quotation
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omitted). In fact, “at the time of its inception the zone of interests test was understood to be part
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of a broader trend toward expanding the class of persons able to bring suits under the APA
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challenging agency actions.” White Stallion Energy Ctr., LLC v. Envtl. Prot. Agency, 748 F.3d
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1222, 1268 (D.C. Cir. 2014) (Kavanaugh, J., concurring in part and dissenting in part) (emphasis
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in original), rev’d on other grounds, 135 S. Ct. 2699 (2015). Thus, the test is satisfied where
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plaintiffs are “reasonable—indeed predictable—challengers.” Patchak, 567 U.S. at 227.
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The States satisfy this test. In § 2808, Congress carefully restricted the Secretary of
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Defense’s authority, allowing diversion of funds only to “military construction projects . . . that
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are necessary to support . . . use of the armed forces,” and only in the event of war or a
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“declaration by the President of a national emergency in accordance with the [NEA].” 10 U.S.C.
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§ 2808(a). Moreover, the NEA was enacted to preserve the normal balance of constitutional
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authority and rein in the president’s emergency powers so that they would “be utilized only when
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emergencies actually exist.” S. Rep. No. 94-1168, at 2 (1976); see also Clarke, 479 U.S. at 401
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(in applying the zone of interests test, the Court is “not limited to considering the statute under
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which [the parties] sued, but may consider any provision that helps [the Court] to understand
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Congress’ overall purposes” of the statutory scheme). The NEA’s purposes and § 2808’s
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requirement that diverted funds be used for “military construction” projects only (discussed
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below) prevent harms that stem from not following those limitations including: (a) defunding
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projects necessary to protect public health and safety within the States; (b) constructing border
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barriers within California and New Mexico; and (c) the unilateral creation of “military
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installations” within their boundaries. Congress could not have intended the zone of interest test
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to bar suits under § 2808 by such “reasonable—indeed predictable—challengers,” Patchak, 567
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U.S. at 227, because imposing such a narrow restriction would effectively prevent any third party
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from bringing suit under § 2808, and thus make the statute’s limitations largely
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unenforceable. This would turn the “strong presumption favoring judicial review” on its head.
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Mach Mining, LLC v. Equal Employ’t Opportunity Comm’n, 135 S. Ct. 1645, 1653 (2015). 1
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Indeed, Congress need not have intended § 2808 to benefit the States. In Scheduled Airlines
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Traffic Offices, Inc. v. Dep’t of Defense, 87 F.3d 1356 (D.C. Cir. 1996), the D.C. Circuit held that
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although an appropriations statute was not intended to benefit third-party government contractors,
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a travel agency could invoke that statute to challenge an agency action because its interests, like
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the States’ here, were “sufficiently congruent with those of the [Treasury’s]” and were not “more
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likely to frustrate than to further . . . statutory objectives.” Id. at 1360 (alterations in original)
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(quoting First Nat’l Bank & Trust v. Nat’l Credit Union Admin., 988 F.2d 1272, 1275 (D.C. Cir.
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Defendants’ zone of interest argument is even more remarkable when one considers that
Defendants are now asserting they are unilaterally creating “military installations”—albeit
installations that are somehow part of a military base in Texas—that are located within the
jurisdictional boundaries of New Mexico and California. Defs.’ Br. 12-13. The States maintain
significant interests in these lands; as the Supreme Court has long held, states retain “power over .
. . federal area[s] within [their] boundaries, so long as there is no interference with the jurisdiction
asserted by the Federal Government.” Howard v. Comm’rs of Sinking Fund of the City of
Louisville, 344 U.S. 624, 627 (1953).
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1993)). Nor does § 2808’s “without regard to any other provision of law” clause make these
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interests any less relevant to a zone of interests analysis. See Defs.’ Br. 11. It is well-settled that
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such clauses do not preclude judicial review of action taken under the statutes containing them—
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or, for that matter, under other laws. See, e.g., Northwest Forest Res. Council v. Pilchuck
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Audubon Soc’y, 97 F.3d 1161, 1167 (9th Cir. 1996) (holding that the language “notwithstanding
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any other . . . law” did not preclude application of other regulations) (internal citation and
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quotation marks omitted). Moreover, notably absent from Defendants’ brief is any attempt to
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identify any other predictable challengers or to explain why Congress would have imposed
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careful restrictions on the authority granted under § 2808 without permitting any party to enforce
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those restrictions in court. Thus, even if the zone of interests test applied to the States’ ultra vires
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claim (it does not), the States would still have ultra vires and APA causes of action.
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B.
The Zone of Interests Test Does Not Apply to the States’ Separate
Constitutional Claims
Defendants also assert that the States “cannot satisfy the zone-of-interests requirement for
15
constitutional claims.” Defs.’ Br. 21. Courts, however, routinely permit plaintiffs to bring
16
equitable constitutional claims without applying the zone of interests test. See United States v.
17
McIntosh, 833 F.3d 1163, 1174 (9th Cir. 2016) (listing cases). And, as the Ninth Circuit motions
18
panel highlighted in Sierra Club v. Trump, “[b]ecause the Constitution was not created by any act
19
of Congress, it is hard to see how the zone of interests test would even apply” given the test’s
20
focus on Congress’ intent as described in Lexmark. Order 62, Sierra Club v. Trump, No. 19-
21
16102 and 19-16300 (9th Cir. July 3, 2019), ECF 76 (Sierra Club Stay Order) (relying on
22
Lexmark, 572 U.S. at 127). Moreover, Defendants do not cite any cases that require plaintiffs to
23
satisfy the zone of interests test for constitutional claims, and do not suggest any reason why that
24
test should apply. See Defs.’ Br. 21. To the extent Defendants suggest the States must fall within
25
§ 2808’s zone of interest to bring constitutional claims, as shown above, they do so.
26
27
28
5
Pls.’ Reply ISO Mot. for Partial Summ. J. and Opp’n to Defs.’ Mot. for Partial Summ. J. (4:19-cv-00872-HSG)
1
2
II.
DEFENDANTS EXCEEDED THEIR AUTHORITY UNDER § 2808
A.
3
4
Defendants Cannot Satisfy § 2808’s Military Construction Requirement by
Simply Declaring that Border Barrier Projects in California and New
Mexico are Part of an Army Base in Texas
The States showed in their motion that the proposed border barrier projects fail to satisfy
5
the definition of “military installation” in 10 U.S.C. § 2801(a), and therefore do not satisfy
6
§ 2808’s military construction requirement. States’ Op. Br. 8-12. In response, Defendants
7
abandon their previous arguments on this point, and now advise this Court “not [to] revisit its
8
earlier concern that canons of statutory construction ‘likely preclude[] treating the southern
9
border as an ‘other activity’” constituting a military installation. Defs.’ Br. 13. Defendants now
10
argue that the project sites constitute military installations because the Secretary of the Army
11
plans to assign them to a preexisting military installation, Fort Bliss. Id. at 12-13. This argument
12
is patently absurd. Fort Bliss is located in Texas, over 100 miles from the project sites in New
13
Mexico at issue and over 600 miles from the project sites in California. If Defendants can make
14
this land part of a military installation simply by assigning it administratively to a military base,
15
and then treat any construction project on that land as a military construction project under §
16
2808, any land anywhere, including national park land and private homes the federal government
17
condemns through eminent domain, can be deemed a military installation. See id. at 8-9
18
(describing the steps the Defendants will take to acquire land for border barrier projects).
19
Notably, Defendants’ Administrative Record failed to mention that lands in California, Arizona,
20
and New Mexico will become part of the Fort Bliss, Texas military installation – which shows
21
Defendants have adopted a post-hoc rationalization for their untenable interpretation of § 2808.
22
They do not even begin to explain how § 2808 can be construed to grant the Executive such a
23
blank check. 2
24
2
25
26
27
28
Defendants cite to DoD’s use of its § 2808 authority to build “a wide variety” of military
construction projects over the past 18 years.” Defs.’ Br. 7. However, the Congressional Research
Service Report they cite for this proposition shows the extreme nature of Defendants’ new
argument. The Report explains that “with the exception of one project dating from December
2011 related to security measures for weapons of mass destruction at sites in the continental
United States, most of these projects took place at oversees locations.” Michael J. Vassalotti &
Brendan W. McGarry, Cong. Research Serv., IN11017, Military Construction Funding in the
Event of a National Emergency (Jan. 11, 2019), at 2.
6
Pls.’ Reply ISO Mot. for Partial Summ. J. and Opp’n to Defs.’ Mot. for Partial Summ. J. (4:19-cv-00872-HSG)
1
Defendants’ interpretation violates fundamental canons of statutory interpretation. Courts
2
must “give effect, if possible, to every clause and word of a statute” and should not interpret a
3
statute to render any term “insignificant, if not wholly superfluous.” Duncan v. Walker, 533 U.S.
4
167, 174 (2001) (internal citation and quotation marks omitted). Defendants’ assertion that the
5
Secretary of the Army can simply declare large swaths of California and New Mexico “part” of a
6
military installation in Texas does just that by rendering the definition of “military installation”
7
and the “military construction” requirement in § 2808 superfluous. In addition, by giving the
8
Secretary the power to deem property hundreds of miles away from a military base to be part of
9
that base, just to attempt to fit within the limitations of § 2808, Defendants’ interpretation violates
10
the rule that “statutory interpretations which would produce absurd results are to be avoided.”
11
Ariz. State Bd. for Charter Schools v. U.S. Dept. of Educ., 464 F.3d 1003, 1008 (9th Cir. 2006)
12
(quoting Ma v. Ashcroft, 361 F.3d 553, 558 (9th Cir. 2004)); id. at 1009 (holding that the natural
13
reading of a statute prevailed when an alternative explanation would lead to “an unnecessarily
14
expansive result”).
15
16
17
B.
Defendants’ Border Barrier Projects Are Not “Necessary to Support” the
“Use of the Armed Forces”
Defendants also fail to show how their border barrier projects are needed “to support such
18
use of the armed forces.” 10 U.S.C. § 2808(a). Defendants urge this Court essentially to ignore
19
the support requirement on the ground that “determination of what would constitute a project
20
‘necessary’ to support the use of the armed forces” is committed to agency discretion. Defs.’ Br.
21
15. But the question before this Court is not whether border barriers are “necessary,” but rather
22
the legal question of which agency the border barriers are meant to “support.” Defendants cannot
23
satisfy § 2808’s support requirement because the border barrier projects are, by Defendants’ own
24
admission, intended to support DHS—a civilian agency—not the armed forces. See id. at 2
25
(projects are meant to “enhance the ability of military forces to support DHS more effectively and
26
efficiently”); id. at 17 (“[b]y serving as a force multiplier for DHS, the projects will reduce DHS’
27
reliance on DoD. . . .”); and id. at 18 (projects “may ultimately reduce the demand for military
28
support over time”) (emphasis added).
7
Pls.’ Reply ISO Mot. for Partial Summ. J. and Opp’n to Defs.’ Mot. for Partial Summ. J. (4:19-cv-00872-HSG)
1
Defendants assert that the border barrier projects are necessary to support military
2
personnel because the barriers “will reduce the demand for DoD personnel and assets at the
3
locations where the barriers are constructed and allow the redeployment of DoD personnel and
4
assets to other high-traffic areas on the border without barriers.” Defs.’ Br. 18. Defendants,
5
however, do not dispute that “[s]ecuring the borders” and “[c]arrying out . . . immigration
6
enforcement functions” are a civilian responsibility, which is assigned to DHS, not DoD. 6 U.S.C.
7
§ 202. Consequently, the border barriers at most will help DoD to support DHS, and if § 2808’s
8
support requirement can be satisfied by DoD supporting civilian agencies, then the support
9
requirement will apply to any activity in which DoD is involved and become meaningless. Here
10
again, Defendants’ interpretation violates fundamental canons of statutory interpretation.
11
III. DEFENDANTS’ ARBITRARY AND CAPRICIOUS ACTIONS VIOLATE THE APA
12
The administrative record fails to address the harms to public health and safety caused by
13
the diversion of military construction funds for the border barriers. States’ Op. Br. 13-14. When
14
they originally requested military construction funds from Congress, Defendants provided
15
specific evidence of the risks from exposure to hazardous and nuclear waste, as well as dangers to
16
military security, absent sufficient funding. Id. Although Defendants deny acting arbitrarily and
17
capriciously, notably absent from their brief is any contention that they considered public health
18
and safety in diverting military construction funds to the border wall. See Defs. Brief 18-20.
19
Failure to consider this “important aspect of the problem” and “relevant factor[]” is a violation of
20
the APA. Motor Vehicles Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-
21
43 (1983).
22
Unable to show that they considered this critical factor, Defendants are forced to take the
23
extraordinary position that their decision to divert funding is entirely insulated from review
24
because § 2808 “does not identify any factors that the Secretary must consider in determining
25
which military construction projects should be deferred in order to fund § 2808 projects.” Defs.’
26
Br. 18 (emphasis omitted). That is wrong. As a recent decision in this district recognized, even
27
where the relevant statute imposes no limitations on what factors the agency could rely, the
28
government acts arbitrarily and capriciously by failing to take “an impartial look at the balance
8
Pls.’ Reply ISO Mot. for Partial Summ. J. and Opp’n to Defs.’ Mot. for Partial Summ. J. (4:19-cv-00872-HSG)
1
struck between the two sides of the scale.” State v. U.S. Bureau of Land Mgmt., 277 F. Supp. 3d
2
1106, 1112 (N.D. Cal 2017), voluntarily dismissed, 2018 WL 2735410 (9th Cir. 2018); see also
3
Koohi v. United States, 976 F.2d 1328, 1131 (9th Cir. 1992) (“the claim of military necessity will
4
not, without more, shield governmental operations from judicial review.”).
5
Nor is Defendants’ failure to consider the harms to public health and safety from cancelling
6
military construction projects in the States excused by consideration of other factors. See Defs.’
7
Br. 19. The other factors may be countervailing interests, but they do not make the public health
8
and safety harms any less of an “important aspect of the problem” whose consideration the APA
9
demands. The failure also is not cured by the fact that Defendants may ask Congress to replenish
10
the funds. See id. If anything, that request shows the absurdity of Defendants’ scheme: after
11
Congress denied the President the funds he requested to build an expansive border wall, he
12
cancelled other Congressionally-funded projects so that he could build that which Congress
13
would not fund, and is now asking Congress to backfill the missing funding for these other
14
projects apparently recognizing that his diversion harms congressional priorities.
15
Lastly, Defendants also violated the APA by relying on factors Congress did not intend
16
Defendants to consider, see State Farm, 463 U.S. at 43, because, as described below, they have
17
used § 2808 to divert funds toward a border wall project Congress repeatedly refused to fund.
18
IV.
19
DEFENDANTS VIOLATED THE CONSTITUTION
A.
20
21
Defendants’ Invocation of § 2808 Does Not Immunize Their Constitutional
Violations
Even if Defendants complied with § 2808 and the APA, their actions would still be
22
unconstitutional. 3 In opposing the States’ constitutional arguments, Defendants once again invoke
23
Dalton v. Specter, 511 U.S. 462 (1994), claiming that the executive branch is immune from a
24
separation of powers constitutional challenge so long as it invokes some statutory authority for its
25
26
3
27
28
If § 2808 were interpreted to allow Defendants’ diversion, that statute would be
unconstitutional as applied. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 689 (2001) (statutes must
be interpreted to avoid serious constitutional problems when a construction avoiding the question
is fairly possible).
9
Pls.’ Reply ISO Mot. for Partial Summ. J. and Opp’n to Defs.’ Mot. for Partial Summ. J. (4:19-cv-00872-HSG)
1
conduct. See Defs’ Br. 21. As the Ninth Circuit recognized, that is wrong. Sierra Club Stay Order
2
49-51.
3
Far from adopting the broad proposition asserted by Defendants, the Dalton Court rejected
4
such a proposition and repeatedly stressed the narrowness of its holding. The plaintiffs in that
5
case sought to challenge the president’s selection of a shipyard under a statute requiring the
6
closure and realignment of military installations. 511 U.S. at 464. Because the president’s
7
decision was not an agency action subject to challenge under the APA, id. at 468-71, the plaintiffs
8
were forced to assert that the president’s action was unconstitutional on the expansive theory that
9
“whenever the President acts in excess of his statutory authority, he also violates the
10
constitutional separation-of-powers doctrine.” Id. at 471. The Supreme Court rejected this theory,
11
first observing that “[o]ur cases do not support the proposition that every action by the President,
12
or by another executive official, in excess of his statutory authority is ipso facto in violation of the
13
Constitution.” Id. at 472. The Court then noted that “we have often distinguished between claims
14
of constitutional violations and claims that an official has acted in excess of his statutory
15
authority” and that prior decisions would not have distinguished between such claims “[i]f all
16
executive actions in excess of statutory authority were ipso facto unconstitutional.” Id. (emphasis
17
added). It also reasoned that Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)
18
“cannot be read for the proposition that an action taken by the President in excess of his statutory
19
authority necessarily violates the Constitution.” Id. at 473 (emphasis added); see also id. (“The
20
decisions cited above establish that claims simply alleging that the President has exceeded his
21
statutory authority are not ‘constitutional’ claims, subject to judicial review. . . .”) (emphasis
22
added). As the Ninth Circuit motions panel explained, Dalton does not support Defendants’
23
position because “[t]here would have been no reason for the Court to include the word
24
‘necessarily”—or the other caveats Dalton carefully repeated—“if [statutory and constitutional]
25
claims were always mutually exclusive.” Sierra Club Stay Order 50.
26
Moreover, the States’ constitutional claims are easily distinguished from the claim in
27
Dalton. The separation of powers claim in Dalton was based solely on the president’s alleged
28
violation of the base closure statute at issue there. Dalton, 511 U.S. at 474. There was no
10
Pls.’ Reply ISO Mot. for Partial Summ. J. and Opp’n to Defs.’ Mot. for Partial Summ. J. (4:19-cv-00872-HSG)
1
contention that the president repudiated congressional intent by closing down a military base that
2
Congress expressed it wanted to keep open. Nor could there have been, since the statute at issue
3
in Dalton allowed Congress to reject the base closure before it took place. See id. at 465
4
(discussing The National Defense Authorization Act for Fiscal Year 1991, 104 Stat. 1485, 101
5
P.L. No. 510, §§ 2904(b) and 2908 (1991)). The same is not true here, as the States’ claims
6
concern the fundamental constitutional question of whether the executive branch may expend
7
federal funds on a project toward which Congress plainly refused to appropriate funding. In
8
addition, these claims are based in part on explicit prohibitions within the Constitution, such as
9
the Appropriations Clause, which “acts as a separate limit on the President’s power,” In re Aiken
10
Cty., 725 F.3d 255, 262 n.3 (D.C. Cir. 2013) (Kavanaugh, J., alternate holding), and the
11
Presentment Clause, which mandates the procedures that legislative actions must follow, U.S.
12
Const., art. I, § 7, cl. 2; Clinton v. City of New York, 524 U.S. 417, 448-49 (1998). No similar
13
constitutional questions were present in Dalton.
14
Further, Dalton cannot preclude the States from challenging the constitutionality of
15
Defendants’ actions under § 2808 as applied to the facts here. Defendants acknowledge, as they
16
must, that a constitutional claim is implicated if executive “officers rely on a statute that itself
17
violates the Constitution.” Defs.’ Br. 21; see also City of New York, 524 U.S. at 448-49 (holding
18
the Line Item Veto Act violates the Presentment Clause). The States’ constitutional challenge to
19
Defendants’ application of § 2808 here should not be treated any different. See United States ex
20
rel. Schweizer v. Océ N.V., 677 F.3d 1228, 1235 (D.C. Cir. 2012) (treating facial separation of
21
powers challenge “as if it were an as-applied challenge”).
22
Moreover, in Chamber of Commerce v. Reich the D.C. Circuit rejected the federal
23
government’s argument that Dalton precluded judicial review of the plaintiffs’ claim that the
24
president’s executive order violated the Constitution’s non-delegation doctrine, although the
25
government contended that the claim was premised merely on whether the president abused his
26
discretion under a statute. 74 F.3d 1322, 1326, 1331-32 (D.C. Cir. 1996). That is because, as the
27
Court held, “an independent claim of a President’s violation of the Constitution would certainly
28
11
Pls.’ Reply ISO Mot. for Partial Summ. J. and Opp’n to Defs.’ Mot. for Partial Summ. J. (4:19-cv-00872-HSG)
1
be reviewable.” Id. at 1326. For similar reasons, this Court should reject Defendants’ reliance on
2
Dalton here. 4
3
B.
4
Defendants’ other constitutional arguments are equally unavailing. For example, they assert
Defendants Violated Separation of Powers Principles
5
there is no separation of powers violation because they acted pursuant to authority granted by
6
Congress, rather than the President’s inherent authority. See Defs.’ Br. 21-22. That is plainly
7
wrong. The States do not dispute that, in the absence of specific congressional approval, § 2808
8
authorizes Defendants to divert federal funds toward emergency military construction projects
9
under certain circumstances. But the Constitution prohibits Defendants from exercising this
10
statutory authority in a manner that is “incompatible with the expressed or implied will of
11
Congress.” Youngstown, 343 U.S. at 637 (Jackson, J., concurring). The undisputed facts here—(a)
12
Congress’s repeated rejection of border wall funding in 2017-18; (b) Congress’s pointed refusal
13
to appropriate $5.7 billion in requested border wall funding resulting in a government shutdown
14
exclusively over the border wall; and (c) Congress’s limited $1.375 billion appropriation for
15
specified pedestrian fencing—demonstrate that Defendants’ diversion of funds appropriated for
16
specific military construction projects toward border barrier construction, not approved by
17
Congress, is “incompatible with the expressed or implied will of Congress.” Id.
18
Defendants deny that the limited $1.375 billion appropriation for the barriers in the
19
Consolidated Appropriations Act, Pub. L. No. 116-6, § 230, 133 Stat. 13, 28 (2019) (CAA),
20
implicitly prohibits use of additional federal funds appropriated for other purposes to construct
21
border barriers. Defs.’ Br. 21. But, as the Supreme Court has recognized, “Where Congress has
22
addressed the subject as it has here, and authorized expenditures where a condition is met, the
23
clear implication is that where the condition is not met, the expenditure is not authorized.” United
24
States v. MacCollom, 426 U.S. 317, 321 (1976). Here, Congress addressed the subject of barrier
25
funding in the CAA and imposed limits on the amount of funding as well as where, when, and
26
27
28
4
Grupo Mexicano de Desarrollo SA v. All. Bond Fund, Inc.¸ 527 U.S. 308 (1999), Defs.’
Brief 12, is inapposite. Grupo did not involve any constitutional claims and addressed a very
different question – namely, whether the Court had the equitable power to prohibit a holding
company from disposing of its assets prior to a final judgment despite a general rule otherwise.
Id. at 318-19. There is no such question about the Court’s equitable power here.
12
Pls.’ Reply ISO Mot. for Partial Summ. J. and Opp’n to Defs.’ Mot. for Partial Summ. J. (4:19-cv-00872-HSG)
1
how the barrier may be built. CAA, §§ 230-32. The limitations in the enacted statute—and the
2
abundance of failed legislation, PI RJN, Exs. 14-20, ECF 59-4,, and the prolonged negotiations
3
that produced the limited appropriation, id. Exs. 21-22, 24-25—express a clear congressional
4
decision on border barrier funding, which the executive cannot unilaterally countermand. See
5
Youngstown, 343 U.S. at 586 (amendment rejected by Congress informed holding that seizure of
6
steel mills violated separation of powers); City & Cty. of San Francisco v. Trump, 897 F.3d 1225,
7
1234 (9th Cir. 2018) (“sheer amount of failed legislation” was evidence that the executive
8
“attempted to coopt Congress’s power to legislate” in violation of the separation of powers). 5
9
As this Court has recognized, “it is not Congress’s burden to prohibit the Executive from
10
spending the Nation’s funds: it is the Executive’s burden to show that its desired use of those
11
funds was affirmatively approved by Congress.” Sierra Club PI Order 40 (internal quotation
12
omitted). As such, under the Constitution, the implicit restriction on funding when Congress
13
appropriates a limited amount of funds for a specific purpose prevents the executive branch from
14
using different appropriations to circumvent congressional intent. See Youngstown, 343 U.S. at
15
609 (Frankfurter, J., concurring) (“It is one thing to draw an intention of Congress from general
16
language . . . where Congress has not addressed itself to a specific situation. It is quite impossible,
17
however, when Congress did specifically address itself to a problem . . . to find secreted in the
18
interstices of legislation the very grant of power which Congress withheld.”).
19
Moreover, although an explicit prohibition was unnecessary, Congress expressly barred the
20
executive branch from using a provision like § 2808 to “increase . . . funding for a program,
21
project, or activity as proposed in the President’s budget request for a fiscal year” unless made
22
pursuant to a reprogramming or transfer provision. CAA § 739. However, Defendants do not—
23
and cannot—contend that § 2808 is a reprogramming or transfer provision. Instead, referring to a
24
25
26
27
28
5
Defendants’ citations to Salazar v. Ramah Navajo Chapter, 567 U.S. 182 (2012) and
Tennessee Valley Auth. v. Hill, 437 U.S. 153 (1978) are not on point. Defs.’ Br. 21-22. Salazar’s
mention of “[a]n agency’s discretion to spend appropriated funds is cabined only by the text of
the appropriation,” applies to the meaning of a particular appropriation rider, but is inapplicable
to determining the significance of Congress’s refusal to appropriate funds. Salazar, 567 U.S. at
200 (internal quotation omitted). And Plaintiffs assert not that the CAA “repeals” an agency’s
substantive obligations under any statute, Tennessee Valley Auth., 437 U.S. at 190, but rather that
the CAA imposes an implicit limit on spending for border barriers.
13
Pls.’ Reply ISO Mot. for Partial Summ. J. and Opp’n to Defs.’ Mot. for Partial Summ. J. (4:19-cv-00872-HSG)
1
General Accountability Office (GAO) glossary, which defines “program, project, or activity” as
2
an “[e]lement within a budget account,” they contend that the border wall construction is not a
3
program, project, activity. Defs.’ Br. 23. But even that definition would disqualify the diversion
4
here, since the diverted DoD funding is intended to supplement the programs, projects, and
5
activities in DHS’s budget accounts. See, e.g., AR 9, 43, 53, 55-56, 120-21. 6
6
Finally, Defendants’ reliance on Lincoln v. Vigil, 508 U.S. 182 (1993) is misplaced.
7
Defendants claim that under Lincoln their actions in diverting “military construction funds to
8
emergency military construction projects do[] not pose constitutional concerns” because
9
“Congress could have granted DoD unfettered discretion over its total budget.” Defs.’ Br. 22.
10
Lincoln, however, involved a lump-sum appropriation which was essential to the Court’s
11
decision. 508 U.S. at 183, 192-93. Whether Congress could grant a lump-sum appropriation to the
12
executive branch for border barriers is beside the point because it did not do so here; to the
13
contrary, Congress imposed specific limitations on funding for border barriers. For all of these
14
reasons, Defendants’ diversion of funds under § 2808 violates separation of powers principles.
15
C.
16
Defendants do not dispute that the Appropriations Clause prohibits the executive branch
Defendants Violated the Appropriations Clause
17
from “evad[ing]” spending limitations set by Congress. States’ Op. Br. 17 (citing Office of Pers.
18
Mgmt. v. Richmond, 496 U.S. 414, 428 (1990)). Instead, Defendants make the sweeping claim
19
that any “action undertaken pursuant to a federal statute . . . cannot violate the Appropriations
20
Clause.” Defs.’ Br. 23. That is not so. In Nevada v. Dep’t of Energy, the D.C. Circuit held that it
21
was unlawful for the executive branch to dedicate portions of a general $190 million
22
appropriation for nuclear waste disposal activities to nuclear waste disposal activities in Nevada
23
when Congress had appropriated only $1 million specifically for Nevada disposal activities in a
24
different appropriation. 400 F.3d 9, 16-17 (D.C. Cir. 2005). If actions undertaken pursuant to a
25
6
26
27
28
Although Defendants object that there is no cause of action to enforce the CAA, Defs.’
Br. 23 n.5, as this Court already has recognized, the States can bring both ultra vires and APA
claims in the absence of an express statutory claim. Moreover, any contention that this claim falls
outside CAA § 739’s zone of interest is barred by the Ninth Circuit’s decision in McIntosh, which
held that third parties may invoke separation of powers principles in disputes over an
appropriation rider. 833 F.3d. at 1174.
14
Pls.’ Reply ISO Mot. for Partial Summ. J. and Opp’n to Defs.’ Mot. for Partial Summ. J. (4:19-cv-00872-HSG)
1
federal statute could not violate the Appropriations Clause, the Nevada case would have come out
2
differently. Here, just as in Nevada, the question presented by the States’ Appropriations Clause
3
claim is whether Defendants may use general appropriations to proceed with border barrier
4
construction even though Congress explicitly authorized only a far smaller amount for
5
construction in a completely different sector. The States’ constitutional claim is not premised
6
solely on “an interpretation of the statutes,” but also “presents [a] controversy about the reach or
7
application of” the Appropriations Clause, underscoring why Dalton does not preclude the States’
8
Appropriations Clause claim. Harrington v. Schlesinger, 528 F.2d 455, 458 (4th Cir. 1975).
9
Defendants assert that congressional limitations in an appropriation for one agency cannot
10
affect how another agency uses money for that same purpose. Defs.’ Br. 23-24. But Defendants
11
are unable to offer any case supporting this assertion, and they ignore that here, DoD is diverting
12
money solely to support the activities of the agency whose appropriation Congress specifically
13
limited. See, e.g., AR 9, 43, 53, 55-56, 120-21. The recent GAO Opinion that Defendants cite,
14
Defs.’ Br. 24, does not support their position. Defs.’ Br. Ex. 8 at 13 (“[A] more specific
15
appropriation prevails over a general appropriation, including where another agency has the more
16
specific appropriation.”) (emphasis added). In any event, Defendants do not dispute that the GAO
17
rendered this opinion without considering the arguments advanced by Plaintiffs and the courts.
18
Compare States’ Op. Br. 17 n.7, with Defs.’ Br. 24. In addition, in the most analogous case, the
19
GAO prohibited one DoD subagency from using a general appropriation to dredge a river where a
20
different subagency of DoD had funds appropriated for dredging. GAO Opinion, B-139510 (May
21
13, 1959). This Court’s prior observation was correct: the Appropriations Clause is not so feeble
22
as to permit executive branch officials “displeased with a . . . restriction . . . imposed by
23
Congress,” Richmond, 496 U.S. at 428, to use DoD to “make a de facto appropriation to DHS,
24
evading congressional control entirely.” Sierra Club PI Order 40.
25
D.
26
Notably absent from Defendants response to the States’ demonstration that Defendants
Defendants Violated the Presentment Clause
27
violated the Presentment Clause is any consideration of the similarities between the President’s
28
unilateral modification of Congress’ $1.375 billion appropriation for barrier construction in the
15
Pls.’ Reply ISO Mot. for Partial Summ. J. and Opp’n to Defs.’ Mot. for Partial Summ. J. (4:19-cv-00872-HSG)
1
CAA and the President’s cancellation of select appropriations in Clinton v. City of New York. See
2
Defs.’ Br. 24. In City of New York, both houses of Congress passed appropriations bills, then the
3
president signed those bills into law and simultaneously rejected two appropriations in those bills.
4
524 U.S. at 436. Here, in the face of a request for $5.7 billion in barrier funding, both houses of
5
Congress passed the CAA with only $1.375 billion in barrier funding and only for the Rio Grande
6
Valley; the president signed that bill into law and, simultaneously, added $6.7 billion from other
7
sources to that appropriation without geographic limitation on where barriers may be built. Sierra
8
Club PI Order 4-8. Like the line-item veto in City of New York, the President’s unilateral actions
9
here “reject[] the policy judgment made by Congress” and supplant it with the President’s based
10
“on the same conditions that Congress evaluated.” 524 U.S. at 438, 443-44.
11
The federal government argued in City of New York, as it does here, that there is no
12
Presentment Clause violation where the congressional enactments impacted by executive actions
13
retain “real, legal budgetary effect.” Id. at 440-41 (quoting Government’s oral argument); Defs.’
14
Br. 24 (“the CAA remains in effect”). City of New York, however, requires looking at the “legal
15
and practical effect” of the President’s actions. 524 U.S. at 438 (emphasis added). The
16
augmentation of the $1.375 billion appropriation in the CAA with an additional $6.7 billion is
17
“the functional equivalent” of an amendment of Congress’s appropriation, which the Presentment
18
Clause forbids. Id. at 441. Moreover, Defendants ignore that the disapproval process in the NEA
19
is substantively similar to the disapproval process in the Line-Item Veto Act that the Supreme
20
Court held to be unconstitutional. Compare 50 U.S.C. § 1622(a)(1), with 2 U.S.C. § 691b(a). This
21
process does not simply allow the President to veto original legislative action, subject to override
22
by a super-majority of Congress. Defs.’ Br. 24. If Defendants’ position were accepted, the NEA
23
would allow the President to unilaterally divert funds, irrespective of Congress’s refusal to
24
appropriate funds for that purpose, and then require a two-thirds majority of Congress to reclaim
25
Congress’s original appropriation that was previously passed into law. This “authorize[s] the
26
President to create a different law—one whose text was not voted on by either House of Congress
27
or presented to the President for signature.” City of New York, 524 U.S. at 448. That product is
28
16
Pls.’ Reply ISO Mot. for Partial Summ. J. and Opp’n to Defs.’ Mot. for Partial Summ. J. (4:19-cv-00872-HSG)
1
“surely not a document that may ‘become a law’ pursuant to the procedures designed by the
2
Framers of Article I, § 7 of the Constitution.” Id. at 449.
3
V.
DEFENDANTS VIOLATED NEPA
4
Defendants do not dispute that the border-barrier projects they are constructing are major
5
federal actions that “significantly affect the quality of the human environment” to which NEPA
6
would normally apply. Defs.’ Br. 24-27; 42 U.S.C. § 4332(C); Robertson v. Methow Valley
7
Citizens Council, 490 U.S. 332, 348-50 (1989). Instead, they assert that their actions on the
8
California and New Mexico 2808 Projects are exempt from NEPA based on § 2808’s “without
9
regard to any other provision of law” clause. This argument fails because, as shown above, the
10
proposed border-barriers are not authorized under § 2808. See supra at 6-8. For projects being
11
constructed under § 284, Defendants rely on this Court’s prior ruling. Defs.’ Br. 24-25. As
12
indicated in their motion, the States continue to contest that ruling. States’ Op. Br. 19-21.
13
In addition, regardless of whether § 2808 applies, DOI was obligated to conduct an
14
environmental review under NEPA before transferring property under its control to DoD. See
15
States’ Op. Br. 20-21. Defendants deny that this claim is properly before this Court because it was
16
not mentioned in the First Amended Complaint. Defs.’ Br. 26. But the allegations in the First
17
Amended Complaint satisfy the general pleading requirements of the Federal Rules of Civil
18
Procedure and provide Defendants with notice that their actions in facilitating border-barrier
19
construction violate NEPA. Fed. R. Civ. P. Rule 8(a); ECF 47 ¶¶ 392-399. Defendants’ authority
20
for their argument, Wasco Products, Inc. v. Southwall Techs., Inc., 435 F.3d 989 (9th Cir. 2006),
21
is distinguishable because there, the issue was plaintiff’s failure to plead fraudulent concealment
22
with particularity under Federal Rule of Civil Procedure 9(b). Id. at 991-92 (holding plaintiff
23
could not toll the statute of limitations based on its allegations of civil conspiracy, which it made
24
for the first time in its response to a summary judgment motion). Further, DOI only recently
25
transferred land to DoD for the § 2808 Projects so it was not possible for the States to include that
26
particular allegation in the First Amended Complaint filed in March 2019. AR 3, 30-31.
27
Nonetheless, the States alleged in that Defendants’ actions to facilitate border barrier construction
28
violate NEPA and named both DOI and DoD as Defendants. See ECF ¶¶ 206-206, 392-399.
17
Pls.’ Reply ISO Mot. for Partial Summ. J. and Opp’n to Defs.’ Mot. for Partial Summ. J. (4:19-cv-00872-HSG)
1
Regarding the merits of the DOI NEPA claim, the limitations Defendants cite in the Federal
2
Land Policy and Management Act (FLPMA) do not apply to the § 2808 Projects because under
3
FLPMA an immediate withdrawal of land is only authorized when necessary “to preserve values
4
that would otherwise be lost.” 43 U.S.C. § 1714(e). Here, DOI is transferring land to DoD to
5
construct border barriers that will actually harm the land and damage species’ habitat rather than
6
preserving them, see generally App’x of Decls. Re: Env. Harms ISO Pls’ MSJ, California (ECF
7
220-1), and Defendants failed to produce sufficient evidence to rebut Plaintiffs’ expert
8
testimony. 7 Thus, Plaintiffs’ evidence of the impacts that DOI’s transfer will have on
9
environmental resources is undisputed and the cases Defendants cite that authorize emergency
10
withdrawals without NEPA compliance in some circumstances are not relevant to DOI’s actions
11
here. The Court should enter judgment for California and New Mexico on their NEPA claims.
12
VI.
13
THE STATES ARE ENTITLED TO A PERMANENT INJUNCTION
This Court should grant a permanent injunction prohibiting Defendants from using § 2808
14
to defund military construction projects located within the States to construct border barrier
15
projects in California and New Mexico, because the States meet all of the factors required for
16
permanent injunctive relief. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). 8
17
A.
18
1.
19
20
21
22
23
24
25
26
27
28
Defendants’ Actions Irreparably Harm California and New Mexico
Defendants’ Actions Irreparably Harm California’s and New
Mexico’s Sovereign Interests in Enforcing Their State Laws
Defendants appear to concede that the California and New Mexico Projects will irreparably
harm those States’ sovereign interests in enforcing their laws if this Court agrees with the States
7
Rather than produce evidence from declarants with expertise in endangered species,
Defendants rely on a single declaration by Alex Beehler—an Assistant Secretary of the United
States Army with no apparent expertise or independent knowledge relating to wildlife along the
border—to address the impacts that the DOI’s transfer will have on the environment. ECF 236-6.
Assistant Secretary Beehler repeatedly refers to the purported statements by unnamed officials at
the United States Fish and Wildlife Service and United States Army Corps of Engineers to
support his conclusion that 11 border barrier projects will not have any negative impacts on the
environment, largely based on mitigation measures he has been told may occur. Id. ¶¶ 33, 34, 3865, 67-70. Assistant Secretary Beehler’s opinions in this regard lack foundation, are speculative,
and are inadmissible. See, e.g., Fed. R. Evid. 602.
8
California and New Mexico also request an injunction prohibiting Defendants from
constructing border barrier projects in California and New Mexico under § 284 until Defendants
comply with NEPA.
18
Pls.’ Reply ISO Mot. for Partial Summ. J. and Opp’n to Defs.’ Mot. for Partial Summ. J. (4:19-cv-00872-HSG)
1
on their legal claims. Defendants offer no defense to California and New Mexico’s position on
2
this issue, but instead argue that in balancing the parties’ harms related to injunctive relief,
3
Defendants’ interests prevail because § 2808 preempts the States’ environmental laws. Defs.’ Br.
4
33-35. But Defendants’ argument misses the point here for two reasons.
5
First, practically, Defendants can only invoke authorities to override state laws if they have
6
funds to undertake the construction at issue here. Therefore, Defendants’ § 2808 diversion
7
infringes upon the Plaintiff States’ ability to implement their laws—which undeniably will cause
8
them irreparable harm. See Kansas v. United States, 249 F.3d 1213, 1227 (10th Cir. 2001).
9
Second, even assuming arguendo that Defendants’ broad reading of § 2808’s “without
10
regard to any other provision of law” clause is correct, there is no federal preemption because that
11
clause does not conflict with the States’ environmental laws. The key point here is that § 2808
12
does not authorize the 2808 California and New Mexico Projects and therefore, that clause does
13
not apply. California and New Mexico are suffering irreparable harm to their sovereign interests
14
because Defendants will not comply with these States’ laws. States’ Op. Br. 21-26; AR 4.
15
2.
16
Defendants’ Actions Irreparably Harm California’s and New
Mexico’s Environment, Wildlife, and Natural Resources
17
Defendants’ arguments about the harms to the environment in California and New Mexico
18
are lack merit. Defendants continue to incorrectly assert that population-level harm is required to
19
establish irreparable harm to species. Defs.’ Br. 28. But that is not the correct standard as this
20
Court previously confirmed. ECF 165 at 31(States PI Order). Instead, the standard requires
21
establishing that “the challenged action poses a threat of future demonstrable harm to a protected
22
species.” Id. at 31. California and New Mexico meet that standard here. States’ Op. Br. 26-30.
23
Defendants also incorrectly argue that California’s and New Mexico’s harms are
24
speculative. California and New Mexico have proffered undisputed evidence of concrete harms to
25
protected species from the § 2808 projects that justify injunctive relief. 9 Starting with California,
26
9
27
28
As noted above, the Beehler Declaration on which Defendants chiefly rely states
opinions that lack foundation. It also contains numerous inaccuracies. For example, his assertion
in paragraph 66 concerning the Vanderplank Declaration is not accurate as that declaration does
not even address the Aplomado falcon – it is limited to rare and protected plant species.
19
Pls.’ Reply ISO Mot. for Partial Summ. J. and Opp’n to Defs.’ Mot. for Partial Summ. J. (4:19-cv-00872-HSG)
1
Defendants claim that impacts to the federally endangered Quino Checkerspot Butterfly are
2
speculative despite the fact that San Diego Project 4 cuts directly through the butterfly’s critical
3
habitat that the federal government designated under the Endangered Species Act to protect the
4
species. 2808 Env. App’x Ex. 1 (Clark Decl. ¶ 13); Revised Designation of Critical Habitat for
5
the Quino Checkerspot butterfly, 74 Fed. Reg. 28,801 (June 17, 2009). This designation was
6
intended to preserve habitat “that is essential to the conservation of the species,” 16 U.S.C. §
7
1533(a)(3)(C)(i), and here Defendants will be damaging that habitat for a species that lives only
8
in a few locations in Riverside and San Diego Counties. Clark Decl. ¶¶ 15-17. Further, Quino
9
Checkerspot Butterfly have been documented within the San Diego Project 4 project footprint. Id.
10
¶ 16. That Declarant Clark did not observe one during his site visit, see Defs.’ Br. 28-29, is not
11
conclusive evidence that the butterfly is absent. Nor is it evidence that Defendants’ construction
12
activities will not harm the butterfly and its habitat, particularly given that the Quino goes
13
dormant and is often not visible. Clark Decl. ¶¶ 13-17. And Defendants do not identify any
14
mitigation measures that would minimize impacts to this imperiled species. Beehler Decl. ¶ 70.
15
Defendants’ responses concerning harms to the federally threatened Coastal California
16
Gnatcatcher and the Western Burrowing Owl are also deficient. Defs.’ Br. 29-30. Defendants
17
acknowledge that San Diego Project 4 could harm these species and destroy their habitat. Id.
18
While Defendants also claim that they may consider mitigation measures or “best management
19
practices” to reduce impacts, these measures are entirely speculative because Defendants contend
20
they can construct the California Projects without complying with any environmental or species-
21
protection laws. AR 4; Defs.’ Br. 25. These voluntary mitigation measures do not rebut
22
California’s evidence of species harm, particularly because they are limited to those “that could
23
be undertaken without impeding expeditious construction of Section 2808 projects.” Beehler
24
Decl. ¶ 70; see Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 524 F.3d 917, 936 (9th Cir.
25
2008) (rejecting mitigation measures as inadequate for protecting endangered fish species where
26
there were no “specific and binding plans” for their implementation). Further, Defendants have
27
not proposed any mitigation measures that—even if properly implemented—would avoid the
28
harms outlined in the Clark Declaration. Clark Decl. ¶¶ 18-26.
20
Pls.’ Reply ISO Mot. for Partial Summ. J. and Opp’n to Defs.’ Mot. for Partial Summ. J. (4:19-cv-00872-HSG)
1
As for vernal pool species, Defendants miss the point of California’s harms argument.
2
Defs.’ Br. 30; Clark Decl. ¶¶ 27-33. While vernal pool species within the San Diego Project 4 site
3
may be harmed, the focus of California’s argument is that in order to access the project site,
4
Defendants will necessarily need to use an unimproved dirt road that goes through vernal pool
5
habitat where endangered species such as the San Diego Fairy Shrimp have been documented.
6
Clark Decl. ¶¶ 30-31. Defendants will likely need to grade the road and remove vegetation to
7
allow access for heavy equipment. Defendants do not contest this point and present no evidence
8
to rebut Plaintiffs’ argument that off-site construction to facilitate San Diego Project 4 will harm
9
vernal pool species and destroy their habitat. Defs.’ Br. 30; see generally Beehler Decl.
10
Concerning harms to the white-sided jackrabbit in New Mexico, Defendants’ position
11
appears to be that it is fine if the remaining U.S.-based population of this New Mexico-threatened
12
species dies off as a result of El Paso Projects 2 and 8 since it “was never known to be abundant
13
in the area.” Defs.’ Br. 31. Defendants fail to rebut the States’ evidence that El Paso Project 8 will
14
completely block the hares’ migration corridor between the U.S. and Mexico, as identified by
15
Declarant Traphagen, whom the U.S. Fish & Wildlife Service recognizes as an expert on this
16
species. Id.; 2808 Env. App’x Ex. 5 (Traphagen Decl. ¶ 18, Ex. B); 12-Month Finding on a
17
Petition to List the White-Sided Jackrabbit as Threatened or Endangered, 75 Fed. Reg. 53,618
18
(Sept. 1, 2010). Defendants also do not challenge that habitat connectivity between New Mexico
19
and Mexico is critical for the hares’ survival, and that the jackrabbit will most likely die off in the
20
United States if El Paso Projects 2 and 8 proceed. Beehler Decl. ¶ 65 (stating “[t]he loss of these
21
populations is not likely to result in a significant gap in the range of the taxon.”). As for the
22
jaguar, though much of its critical habitat is adjacent to the project sites, that species still faces
23
harm because El Paso Projects 2 and 8 will block the eastern-most corridor of the jaguar’s habitat
24
between the U.S. and Mexico. Traphagen Decl. ¶ 21. Because New Mexico has demonstrated that
25
El Paso Projects 2 and 8 pose a threat of “future demonstrable harm” to these protected species,
26
States PI Order 31, this Court should issue an injunction to halt project construction.
27
28
21
Pls.’ Reply ISO Mot. for Partial Summ. J. and Opp’n to Defs.’ Mot. for Partial Summ. J. (4:19-cv-00872-HSG)
1
3.
2
3
The Cancellation of Military Construction Projects in Colorado,
Hawaii, Maryland, New Mexico, New York, Oregon, Virginia, and
Wisconsin Causes those States Irreparable Financial Harm
Defendants argue that financial harms asserted by the States are “generalized complaints
4
about harm to their local economies,” and as such “are insufficient to establish standing, let alone
5
irreparable injury warranting a permanent injunction.” Defs.’ Br. 3. However, Defendants
6
mischaracterize the States’ claims by conflating losses to the “States’ local economies” with
7
losses to the coffers of the States themselves in the form of “fewer taxes” collected. Id. at 32; see
8
also States’ Op. Br. 31 (noting that while the diverted construction would have brought $366
9
million in benefits to the States’ economies, the tax losses suffered by the States would be $36
10
million). Although the $36 million decrease in tax revenues collected by Colorado, Hawaii,
11
Maryland, New Mexico, New York, Oregon, Virginia, and Wisconsin is a necessary result of the
12
$366 million decline in local economic activity, these states seek redress only for the former,
13
which is an injury directly impacting these states themselves. 10 That financial harm is clearly
14
cognizable, despite Defendants’ unsupported suggestion that only “direct recipients of the money
15
for the deferred military construction projects” suffer economic harm. Defs.’ Br. 32. Finally,
16
Defendants are wrong to claim these are irrelevant because they are not “irreparable.” Id. at 33.
17
Defendants have repeatedly asserted their own financial harms as relevant, and precedent holds
18
that economic harm can be irreparable when, as here, a party would not be able to recover
19
monetary damages.
20
a.
21
Lost Tax Revenue Is Cognizable Financial Harm
Defendants’ implication that the States could only assert economic loss by showing they
22
would be “direct recipients” of federal dollars is simply incorrect. Defs.’ Br. 32. Colorado,
23
Hawaii, Maryland, New Mexico, New York, Oregon, Virginia, and Wisconsin can assert any
24
“harm to [their] own economic interests,” including lost opportunities for an economic “benefit.”
25
City of Olmsted Falls v. Fed. Aviation Admin., 292 F.3d 261, 268 (D.C. Cir. 2002); City of New
26
27
28
10
It is for this reason that Defendants’ discussion of parens patriae standing is irrelevant.
Defs.’ Br. 33 (“[T]o the extent the States’ theory is that they effectively have parens patriae
standing on behalf of contractors who would otherwise be direct recipients of the funds, that they
[sic] fails.”). While the States do not concede that Defendants’ arguments regarding parens
patriae claims are correct, they do not assert any financial harms on behalf of their residents here.
22
Pls.’ Reply ISO Mot. for Partial Summ. J. and Opp’n to Defs.’ Mot. for Partial Summ. J. (4:19-cv-00872-HSG)
1
York, 524 U.S. at 431. The Ninth Circuit has recognized states’ and municipalities’ lost tax
2
revenues as a result of federal actions as harm. See, e.g., City of Sausalito v. O’Neill, 386 F.3d
3
1186, 1194 (9th Cir. 2004) (recognizing financial harm from, inter alia, decreased tax revenue
4
caused by federal plan to rehabilitate a former military base); City of Oakland v. Lynch, 798 F.3d
5
1159, 1164 (9th Cir. 2015) (recognizing “expected loss of tax revenue” as harm).
6
Defendants, who make no attempt to distinguish the binding circuit precedents of Sausalito
7
and Oakland, instead object that only one case, California v. Azar, 911 F.3d 558 (9th Cir. 2018),
8
cert. denied sub nom, “even addresses” the Supreme Court’s decision in Wyoming v. Oklahoma,
9
502 U.S. 437 (1992). Defs.’ Br. 33. However, Sausalito and Oakland are entirely consistent with
10
Wyoming, which explicitly holds that a state can suffer “direct injury in the form of a loss of
11
specific tax revenues” traceable to federal action. 502 U.S. at 448-49. Furthermore, Defendants’
12
argument that in Wyoming there was a “direct link between Oklahoma’s law targeting coal usage
13
and a specific stream of [Wyoming’s] tax revenue based on coal extraction” is a distinction
14
without a difference. Defs.’ Br. 32. The “specific stream of tax revenue” that will be lost by the
15
states here is no less “directly linked” to Defendants’ actions than the predicted decline of coal
16
purchases in Wyoming.
17
Defendants also do not dispute the methodology or conclusions of the States’ expert on the
18
economic tax benefits brought by military construction and projected lost tax revenue from the
19
cancellation of military construction. Instead, citing out-of-circuit cases (two of which pre-date
20
Wyoming’s recognition of lost tax revenue as cognizable harm), Defendants argue that this Court
21
should ignore these harms because they constitute a “generalized grievance . . . distantly related
22
to the wrong for which relief is sought.” Defs.’ Br. 32. But, those cases involved alleged harms
23
that were far more generalized and speculative than those at issue here. Iowa ex rel. Miller v.
24
Block, 771 F.2d 347, 353 (8th Cir. 1985) (state plaintiff claimed that “but for the Secretary’s
25
implementation of . . . disaster relief programs, agricultur[al] production [would] suffer . . .
26
forcing unemployment up and state tax revenues down”); Pennsylvania v. Kleppe, 533 F.2d 668,
27
671-72 & n.14 (D.C. Cir. 1976) (state plaintiff claimed, solely during oral argument and in
28
“sketchy and uncertain” terms, that federal assistance to rebuild hurricane-damaged businesses
23
Pls.’ Reply ISO Mot. for Partial Summ. J. and Opp’n to Defs.’ Mot. for Partial Summ. J. (4:19-cv-00872-HSG)
1
was needed to avoid losing “tax revenues”); Arias v. DynCorp, 752 F.3d 1011, 1015 (D.C. Cir.
2
2014) (Ecuadorian provinces asserted that an herbicide-spraying operation caused a loss of tax
3
revenues, but quantified claim solely by comparing current “annual budget deficits with their
4
generally balanced budgets before the spraying began,” and plaintiffs’ “own expert noted that
5
there [were] a number of economic and environmental factors that were responsible for the
6
[recent] budget deficits, including . . . a volcanic eruption”). In contrast, the States’ injuries here
7
are not generalized or speculative. The lost tax revenues at issue are concrete and quantifiable,
8
and will inexorably result from the loss of specific, identified construction projects within the
9
States’ borders. See Reaser Decl. ¶¶ 18-29.
10
b.
Lost Tax Revenue Constitutes Irreparable Harm
11
Finally, Defendants are wrong to assert that “loss of tax revenue is not an irreparable
12
injury.” Defs.’ Br. 31. Both before this Court and the Ninth Circuit, Defendants have repeatedly
13
asserted their own economic harms as relevant to the balancing inquiry when considering
14
injunctive relief. See, e.g., Defs.’ Notice of Mot. and Mot. for Partial Summ. J. and Opp’n, 24,
15
California (June 19, 2019), ECF 182 (arguing against injunctive relief based on “significant
16
costs” to Defendants, including “unrecoverable fees and penalties of hundreds of thousands of
17
dollars”); Br. for Defs.-Appellants 51-52, California v. Trump, No. 19-16102 (9th Cir. 2019),
18
ECF 85 (arguing that “unrecoverable fees and penalties” incurred by Defendants related to
19
suspension of construction were “misweighed” among the relevant harms). More importantly,
20
even though “[e]conomic harm is not normally considered irreparable[,] . . . such harm is
21
irreparable [where] the states will not be able to recover monetary damages” to compensate for
22
the harms alleged. Azar, 911 F.3d at 581. Because Colorado, Hawaii, Maryland, New Mexico,
23
New York, Oregon, Virginia, and Wisconsin will not be able to recover tax benefits and revenues
24
lost by the diversion of military construction projects, those harms should be considered by this
25
Court as further justifying injunctive relief.
26
27
28
24
Pls.’ Reply ISO Mot. for Partial Summ. J. and Opp’n to Defs.’ Mot. for Partial Summ. J. (4:19-cv-00872-HSG)
1
B.
The Balance of Hardships and Public Interest Favor Granting a
Permanent Injunction
2
3
Defendants make no effort to meaningfully engage with the States’ arguments regarding the
4
balance of harms. Defendants entirely fail to address any harms to the public interest resulting
5
from the cancellation of the military projects at issue as identified in the States’ opening brief. See
6
States’ Op. Br. 13-14, 35, 2808 MSJ RJN Exs. 2-19 (cataloging severe harms to both the military
7
and to the general public that Defendants themselves stated would result if the planned military
8
construction projects were not undertaken). Amicus curiae Iraq and Afghanistan Veterans of
9
America have further detailed harms to the “safety, quality of life, or work environment for
10
military service members and their families” that would result from Defendants’ diversions. Brief
11
of Iraq and Afghanistan Veterans of America as Amicus Curiae in Supp. of Pls.’ Mot. for Partial
12
Summ. J. 4-8, California, (Oct. 22, 2019), ECF 232. Ignoring these interests, Defendants simply
13
repeat their position that the Court should entirely defer to the President’s determination that the
14
armed forces “are required to confront this crisis” at the border. Defs.’ Br. 34. However,
15
Defendants’ refusal to acknowledge these competing and compelling impacts to the public
16
interest does not negate their existence.
17
Defendants similarly fail to address the harms their actions would cause to the States’
18
sovereign interests. As explained above, Defendants cannot merely assert the supremacy of
19
federal law here, where it is only Defendants’ unlawful actions that lead to the curtailing of state
20
sovereignty, in direct conflict with congressional intent. See supra at 19.
21
Finally, and most fundamentally, Defendants fail to explain how the public interest and the
22
balance of hardship can favor their continued unlawful and unconstitutional diversion of funds.
23
See Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013).
24
CONCLUSION
25
For the reasons stated above, Plaintiffs ask that the Court grant their Motion for Partial
26
Summary Judgment, order the States’ requested injunctive and declaratory relief, and deny
27
Defendants’ Motion for Partial Summary Judgment.
28
25
Pls.’ Reply ISO Mot. for Partial Summ. J. and Opp’n to Defs.’ Mot. for Partial Summ. J. (4:19-cv-00872-HSG)
1
Dated: November 1, 2019
Respectfully submitted,
2
XAVIER BECERRA
Attorney General of California
ROBERT W. BYRNE
SALLY MAGNANI
MICHAEL L. NEWMAN
Senior Assistant Attorneys General
MICHAEL P. CAYABAN
CHRISTINE CHUANG
EDWARD H. OCHOA
Supervising Deputy Attorneys General
3
4
5
6
7
/s/ Heather C. Leslie
8
HEATHER C. LESLIE
BRIAN J. BILFORD
SPARSH S. KHANDESHI
LEE I. SHERMAN
JANELLE M. SMITH
JAMES F. ZAHRADKA II
Deputy Attorneys General
Attorneys for Plaintiff State of California
9
10
11
12
13
14
15
PHILIP J. WEISER
Attorney General of Colorado
ERIC R. OLSON (appearance pro hac vice)
Solicitor General
Attorneys for Plaintiff State of Colorado
CLARE E. CONNORS
Attorney General of Hawaii
ROBERT T. NAKATSUJI (appearance pro
hac vice)
Deputy Solicitor General
Attorneys for Plaintiff State of Hawaii
BRIAN E. FROSH
Attorney General of Maryland
JEFFREY P. DUNLAP (appearance pro hac vice)
Assistant Attorney General
Attorneys for Plaintiff State of Maryland
HECTOR BALDERAS
Attorney General of New Mexico
TANIA MAESTAS (appearance pro hac vice)
Chief Deputy Attorney General
NICHOLAS M. SYDOW
Civil Appellate Chief
JENNIE LUSK
Civil Rights Bureau Chief
Attorneys for Plaintiff State of New Mexico
16
17
18
19
20
21
22
23
24
25
26
27
28
26
Pls.’ Reply ISO Mot. for Partial Summ. J. and Opp’n to Defs.’ Mot. for Partial Summ. J. (4:19-cv-00872-HSG)
1
2
3
4
5
6
7
LETITIA JAMES
Attorney General of New York
MATTHEW COLANGELO (appearance pro hac
vice)
Chief Counsel for Federal Initiatives
STEVEN C. WU
Deputy Solicitor General
ERIC R. HAREN
Special Counsel
GAVIN MCCABE
Special Assistant Attorney General
AMANDA MEYER
Assistant Attorney General
Attorneys for Plaintiff State of New York
ELLEN ROSENBLUM
Attorney General of Oregon
J. NICOLE DEFEVER
Senior Assistant Attorney General
Attorneys for Plaintiff State of Oregon
MARK R. HERRING
Attorney General of Virginia
TOBY J. HEYTENS
Solicitor General, Counsel of Record
MICHELLE S. KALLEN
MARTINE E. CICCONI
Deputy Solicitors General
JESSICA M. SAMUELS
Assistant Solicitor General
ZACHARY R. GLUBIAK (pro hac vice pending)
Attorney
Attorneys for the Commonwealth of Virginia
JOSHUA L. KAUL
Attorney General of Wisconsin
GABE JOHNSON-KARP (appearance pro
hac vice)
Assistant Attorney General
Attorneys for Plaintiff State of Wisconsin
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Pls.’ Reply ISO Mot. for Partial Summ. J. and Opp’n to Defs.’ Mot. for Partial Summ. J. (4:19-cv-00872-HSG)
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ATTESTATION OF SIGNATURES
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I, Heather C. Leslie, hereby attest, pursuant to Local Civil Rule 5-1(i)(3) of the Northern
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District of California that concurrence in the filing of this document has been obtained from each
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signatory hereto.
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/s/ Heather C. Leslie
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HEATHER C. LESLIE
Deputy Attorney General
Attorney for Plaintiff
State of California
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Pls.’ Reply ISO Mot. for Partial Summ. J. and Opp’n to Defs.’ Mot. for Partial Summ. J. (4:19-cv-00872-HSG)
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