State of California et al v. Trump et al

Filing 251

RESPONSE To The Court's November 20, 2019 Order Requesting Additional Information About Military Installations by Department of Defense, David Bernhardt, Mark T. Esper, Kevin K. McAleenan, Ryan D. McCarthy, Steven T. Mnuchin, Richard V. Spencer, Donald J. Trump, U.S. Department of Homeland Security, U.S. Department of the Interior, U.S. Department of the Treasury, United States of America, Heather Wilson. (Attachments: # 1 Exhibit)(Warden, Andrew) (Filed on 11/25/2019)

EXHIBIT 1

SECOND DECLARATION OF ALEX A. BEEHLER
I, Alex A. Beehler, pursuant to 28 U.S.C. § 1746, hereby declare as follows:

1. I am the Assistant Secretary of the Army (Installations, Energy and Environment).
Among other duties, which are generally reflected in General Orders No. 2019-01 ,
"Assignment of Functions and Responsibilities Within Headquarters, Department of
the Army," lam responsible for developing and overseeing policies and programs
that include military construction, management of real property and installations, real
estate contracting, environmental compliance and conservation, and oversight of all
execution functions performed by the U.S. Army Corps of Engineers related to the
Army's military construction, real property, real estate, and environmental programs.
2. This declaration is based on my own personal knowledge and information made
available to me in the course of my official duties.
Process for Designating Real Property as a Military Installation
3. A military installation is defined at 10 U.S.C. § 2801(c)(4) as "a base, camp, post,
station, yard, center, or other activity under the jurisdiction of the Secretary of a
military department or, in the case of an activity in a foreign country, under the
operational control of the Secretary of a military department or the Secretary of
Defense, without regard to the duration of operational control."
4. The process of real property becoming part of a military installation begins with
identifying the military requirement for real property, followed by the legal and
administrative actions necessary to bring that real property "under the jurisdiction of
the Secretary of a military department," in accordance with 1O·U.S.C. § 2801.
a. For property already owned by the United States, the steps and mechanisms for
bringing real property under the jurisdiction of the Secretary of a Military
Department depend on whether the property is subject to the Federal Land Policy
Management Act of 1976 (FLPMA), 43 U.S.C. § 1714, or subject to the Federal
Property and Administrative Services Act of 1949 (Property Act), 40 U.S.C. §§
101 et seq.
1.

For land available for transfer under the FLPMA, the Military Department
submits a withdrawal application to the Department of the Interior in
accordance with.43 U.S.C. § 157 or 43 C.F.R. Subpart 2310. The Department
of the Interior then acts on this application by withdrawing the land from other
forms of use under the public land laws and transfers administrative
jurisdiction to the requesting Military Department by publication of a Public
Land Order in the Federal Register.

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11.

For land governed by the Property Act, the transfer of custody and
accountability among agencies occurs by the General Services Administration
(GSA) executing a letter effectuating transfer pursuant to 40 U.S.C. § 521 and
in accordance with the Federal Management Regulation, 41 C.F.R.
Subchapter C.

b. For property not already owned by the United States, the process for bringing real
. property under the jurisdiction of the Secretary of a Military Department begins
by obtaining ownership over the real property in the name of the United States.
1.

11.

m.

Because " [n]o military department may acquire real property not owned by
the United States unless the acquisition is expressly authorized by law," the
Military Department must first identify the land acquisition authority. 10
U.S.C. § 2664; see IO U.S.C. § 2802(a) ("The Secretary of Defense and the
Secretaries of the military departments may carry out such military
construction projects, land acquisitions, and defense access road projects .. .
as are authorized by law."). In this case, 10 U.S.C. § 2808 provides the
requisite legal authorization because it authorizes military construction, and
the definition of "military construction" in § 2808 includes "any acquisition of
land." 10 U.S.C. § 2801(a).
Real property not owned by the United States may be acquired by a Military
Department in the name of the United States through purchase, donation,
exchange, or condemnation.
Once the Military Department acquires the real property, the Military
Department has administrative jurisdiction and real property accountability on
behalf of the U.S . Government.

5. In order to manage and account for real property under its jurisdiction consistent with
Chapter 159 of Title 10 U.S. Code and DoD Directive 4165 .06, Real Property, the
Military Department may either designate the property as a new military installation
or assign the property to an existing military installation.
6. Under Army procedures established by General Orders No. 2019-01 , Assignment of
Functions and Responsibilities Within Headquarters, Department of the Army, such
organizational designations relating to installations are directed by General Orders
signed by the Secretary of the Army and registered in the DoD official real property
database ofrecord as required by DoD policy.
7. In this instance, the Army assigned the real property brought under the jurisdiction of
the Secretary for these military construction projects to Fort Bliss, Texas, through
General Orders 2019-36, October 8, 2019, signed by the Secretary of the Army.

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Geographically Separate Sites of a Military Installation
8. There is no legal, regulatory, or policy requirement for geographically separate sites
to be assigned to a "nearby" military installation. Nor is there any legal, regulatory,
or policy requirement for all the sites or lands that comprise a given military
installation to be located in the same State or within a certain distance of other sites
associated with the military installation. In the Secretary of Defense' s September 3,
2019, memorandum to the Secretary of the Army, the Secretary of Defense directed
the Department of the Army to "add such land to the Department of the Army's real
property inventory, either as a new installation or as part of an existing military
installation," wit)lout conditions on the location of the existing installation to which
the land could be added.
9. The Department of the Army, on behalf of the United States, owns and uses many
parcels of land that are not contiguous to other portions of a military installation and
that are not considered separate military installations. The same is true for other
Military Departments. Such locations are referred to as "sites." DoD Instruction
4165.14, Real Property Inventory (RPI) and Forecasting, defines a site as a "physical
(geographic) location that is, or was owned by, leased to, or otherwise possessed by a
DoD Component on behalf of the United States. Each site (except for leased) is
assigned to a single installation." A site may exist as "land only, where there are no
facilities present," "facility or facilities only, where the underlying land is neither
owned nor controlled by the government," or "land and the facilities thereon."
10. Each such site is assigned to a military installation for real property accountability
purposes and is considered part of that installation, even if located remotely from the
Army Garrison. The Garrison is the Army organizational unit that is responsible for
installation management across the installation sites. See Army Regulation 405-70,
Utilization of Real Property. Sites can be in States other than the one in which the
Army Garrison unit is located, and the distance between various sites can vary
significantly. For example, Fort Campbell is located in both Kentucky and Tennessee;
the Green River Test Complex site in Utah is part of White Sands Missile Range in
New Mexico; the Special Forces site in Key West, Florida, is part of Fort Bragg,
North Carolina; six different Navy Outlying Landing Field sites in Alabama are part
of Naval Air Station Whiting Field, Florida; a new National Geospatial Intelligence
Agency West Campus being constructed in Missouri is part of Scott Air Force Base,
Illinois; the Pentagon Reservation includes the Pentagon building and Mark Center in
Virginia as well as the Raven Rock Complex in Maryland and Pennsylvania; and
among other Army examples, Fort Carson, Fort Belvoir, Fort Bliss, Joint Base Lewis
McChord, Fort Benning, Fort Greely, and Fort Detrick all include various
geographically separate sites.
Decision to Designate Section 2808 Project Locations as Part of Fort Bliss
11 . Fort Bliss is the largest, most capable Active Army installation in the vicinity of the
southern border. Fort Bliss has a sizable existing installation management office with
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experience addressing various land management issues and experience working with
the U.S. Army Corps of Engineers on military construction projects. The Department
of the Army also determined that it is more efficient for command of all the real
property associated with the projects undertaken pursuant to Section 2808 to be
vested in one Army installation, given the similar nature and scope of all such Section
2808 projects. In addition, Fort Bliss has an existing support relationship with the
U.S . Border Patrol, which maintains a regional office on the installation.

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I hereby declare under penalty of perjury that the foregoing is true and correct.

Executed on November 25, 2019

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