State of California et al v. Trump et al

Filing 263

NOTICE Regarding Use Of The Treasury Forfeiture Fund by Department of Defense, David Bernhardt, Mark T. Esper, Kevin K. McAleenan, Ryan D. McCarthy, Steven T. Mnuchin, Kirstjen M. Nielsen, Patrick M. Shanahan, 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 1/8/2020) Modified on 1/9/2020 (jjbS, COURT STAFF).

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

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

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STATE OF CALIFORNIA, et al.,

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Plaintiffs,
v.
DONALD J. TRUMP, et al.,
Defendants.

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No. 4:19-cv-00872-HSG
No. 4:19-cv-00892-HSG
NOTICE REGARDING USE OF
THE TREASURY FORFEITURE
FUND

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SIERRA CLUB, et al.,

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Plaintiffs,
v.
DONALD J. TRUMP, et al.,
Defendants.

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State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG – Notice re Treasury Forfeiture Fund
Sierra Club, et. al. v. Donald J. Trump, et al., 4:19-cv-00892-HSG – Notice re Treasury Forfeiture Fund

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Defendants hereby update the Court and parties in the above-captioned cases about the

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use of the Treasury Forfeiture Fund (TFF) to support the U.S. Customs and Border Protection’s

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(CBP) border security law enforcement mission.

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As explained in Defendants’ prior submissions, on February 15, 2019, the U.S.

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Department of the Treasury determined that the TFF could allocate up to $601 million to CBP

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for its border security law enforcement mission. See First Declaration of John M. Farley ¶ 24

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(April 12, 2019). This sum of money was separated into two tranches. Id. ¶ 25. The first

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tranche of $242 million was made available to CBP for obligation on March 14, 2019 through an

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interagency agreement. See Second Declaration of John M. Farley ¶ 4 (October 2, 2019). The

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second tranche of $359 million was made available to CBP for obligation on July 16, 2019

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through a modification to the interagency agreement. Id. In September 2019, a CBP account

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received from the Department of the Treasury $600,993,368.26. See Declaration of Ruynard

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Singleton ¶ 4 (Oct. 4, 2019); Second Farley Decl. ¶ 5.

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CBP recently made decisions as to how it will allocate the approximately $601 million of

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TFF funds to support CBP’s border security law enforcement mission. See Declaration of Loren

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Flossman ¶ 6 (Jan. 8, 2020) (attached as Exhibit 1). CBP will use $340 million for border barrier

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projects in the Rio Grande Valley Sector in Texas. Id. ¶ 7. $124 million of the $340 million will

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be used to construct border barriers. Id. ¶ 7.a. On December 27, 2019, CBP, through the United

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States Army Corps of Engineers, exercised contract options for the barrier projects known as

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RGV 09 and RGV 10. Id. The RGV 09 and RGV 10 projects had previously been funded

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exclusively with funds appropriated in the Fiscal Year 2019 CBP appropriation (Public Law No.

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116-6, Div. A, § 230). Id. CBP used approximately $11 million in TFF funds to fund a contract

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option for the RGV 09 project that will increase the height of a planned segment of barrier in

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Starr County, Texas, from 18 feet to 30 feet. Id. For the RGV 10 project, CBP used

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approximately $113 million in TFF funds to fund a contract option that will add approximately

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10 miles of barrier to the RGV 10 project. Id. These additional miles are located in Hidalgo

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County and Cameron County, Texas. Id. The locations of the RGV 09 and RGV 10 projects,

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including the specific barrier segments funded by the TFF, are depicted in the maps attached as
State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG – Notice re Treasury Forfeiture Fund
Sierra Club, et. al. v. Donald J. Trump, et al., 4:19-cv-00892-HSG – Notice re Treasury Forfeiture Fund
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Exhibit A to the Flossman declaration. Construction on the RGV 09 and RGV 10 projects,

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including the portions of those projects funded with TFF funds, will begin once CBP has

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acquired sufficient real estate. Id. CBP does not anticipate that it will have sufficient real estate

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prior to July 2020. Id.

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$216 million of the $340 million in TFF funds that will be used in the Rio Grande Valley

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Sector will be used for program and project activities such as construction management, change

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management (i.e., covering increased project costs due to unforeseen site conditions and other

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contingencies), and real estate planning and acquisition for planned or on-going border barrier

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projects in the Rio Grande Valley Sector that are funded by one of three sources: CBP’s Fiscal

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Year 2018 appropriation (Public Law No. 115-141, Div. F, § 230), CBP’s Fiscal Year 2019

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appropriation (Public Law No. 116-6, Div. A, § 230), and TFF funds. Id. ¶ 7.b.

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CBP intends to use the remaining balance of approximately $261 million in TFF funds

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for real estate planning activities for future year barrier construction in the United States Border

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Patrol’s priority locations along the southwest border. Id. ¶ 9. Real estate planning activities

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involve, among other things, planning for future barrier alignments, title research, surveys, and

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appraisals. Id.1 CBP’s prior declarations stated that CBP planned to utilize TFF funds for

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planning and construction exclusively within Texas, in the Rio Grande Valley and/or Laredo

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Sectors. Id. ¶ 8; see Declaration of Loren Flossman ¶ 5 (July 11, 2019); Singleton Decl. ¶ 5

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(Oct. 3, 2019). CBP has now decided to expand the use of TFF funds for planning beyond the

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Rio Grande Valley and Laredo Sectors. Flossman Decl. ¶ 8 (Jan. 8, 2020). The decision to

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expand the use of the TFF funds for planning beyond the Rio Grande Valley and Laredo Sectors

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was the result of CBP having recently received funding in its Fiscal Year 2020 appropriation

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(Public Law No. 116-93, Div. D, § 209) that will fund its highest priority locations in the Laredo

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Sector. Id. ¶ 10. Because CBP has now received funding for its highest priority locations in the

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Laredo Sector, $340 million in TFF funds may be used for priority projects in the Rio Grande

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If there is surplus funding that is not needed for real estate planning activities, CBP
would allocate any remaining TFF funds to other activities in support of CBP’s law enforcement
border security mission. Flossman Decl. ¶ 9 (Jan. 8, 2020)
State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG – Notice re Treasury Forfeiture Fund
Sierra Club, et. al. v. Donald J. Trump, et al., 4:19-cv-00892-HSG – Notice re Treasury Forfeiture Fund
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Valley Sector, and the remaining balance of the TFF funds may be used to plan for future year

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barrier requirements. Id. Future year planning will allow CBP to streamline the execution of

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such projects and more quickly deliver the capabilities required for the United States Border

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Patrol to deter and prevent illegal entry on the southwest border. Id.

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DATE: January 8, 2020

Respectfully submitted,
JAMES M. BURNHAM
Deputy Assistant Attorney General
ALEXANDER K. HAAS
Director, Federal Programs Branch
ANTHONY J. COPPOLINO
Deputy Director, Federal Programs Branch
/s/ Andrew I. Warden
ANDREW I. WARDEN (IN #23840-49)
Senior Trial Counsel
U.S. Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, NW
Washington, D.C. 20530
Tel.: [phone]
Fax: [phone]
Attorneys for Defendants

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State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG – Notice re Treasury Forfeiture Fund
Sierra Club, et. al. v. Donald J. Trump, et al., 4:19-cv-00892-HSG – Notice re Treasury Forfeiture Fund
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