State of California et al v. Trump et al

Filing 271

NOTICE Regarding Authorization of Additional Border Barrier Projects Pursuant to 10 U.S.C. § 284 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 Declaration Seventh Rapuano Declaration, # 2 Declaration Second Stiglich Declaration)(Warden, Andrew) (Filed on 2/13/2020) Modified on 2/14/2020 (jjbS, COURT STAFF).

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DAVID M. MORRELL
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.,

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Defendants.

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NOTICE REGARDING
AUTHORIZATION OF
ADDITIONAL BORDER
BARRIER PROJECTS
PURSUANT TO 10 U.S.C. § 284

SIERRA CLUB, et al.,

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No. 4:19-cv-00872-HSG
No. 4:19-cv-00892-HSG

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 § 284 Projects
Sierra Club et. al. v. Donald J. Trump, et al., 4:19-cv-00892-HSG – Notice re § 284 Projects

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Defendants hereby notify the Court and parties in the above-captioned cases that the

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Department of Defense (DoD) has authorized the funding and construction of additional border

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barrier projects pursuant to 10 U.S.C. § 284.

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On January 15, 2020, the Department of Homeland Security (DHS) submitted a request to

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DoD for assistance in constructing 13 border barrier projects located in drug-smuggling corridors

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along the southern border. See Seventh Declaration of Kenneth Rapuano, Assistant Secretary of

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Defense for Homeland Defense and Global Security ¶ 3 (Exhibit 1). The request sought construction

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of new fencing as well as the replacement of existing vehicle barriers and dilapidated fencing, the

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construction of new and improvement of existing patrol roads, and the installation of lighting, all of

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which would be on Federal land. Id. The 13 requested projects consist of 38 discrete construction

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segments. See id., Ex. A.

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On February 13, 2020, the Secretary of Defense approved construction and funding for 31

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segments within the 13 project areas. See Seventh Rapuano Decl. ¶ 4 & Ex. B. The approved projects

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are summarized below:

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1. San Diego A: 3 miles of new primary pedestrian fencing and 14 miles of replacement
pedestrian fencing in San Diego County, CA (Segments 1–3);

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2. El Centro A: 10 miles of new pedestrian fencing in Imperial County, CA (Segment 1);

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3. Yuma A: 7 miles of vehicle barriers replaced with new pedestrian fencing and 9 miles of
replacement secondary pedestrian fencing in Yuma County, AZ (Segments 1–2);

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4. Yuma B: 0.5 miles of replacement primary pedestrian fencing and 0.5 miles of new secondary
pedestrian fencing located in Imperial County, CA on the Quechan Reservation (Segments 1–
2);
5. Tucson A: 24 miles of replacement primary pedestrian fencing, 1 mile of replacement
secondary pedestrian fencing, and 4.5 miles of new primary pedestrian fencing in Cochise
County, AZ (Segments 1–5);

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6. Tucson B: 2 miles of replacement primary pedestrian fencing and 27.5 miles of new
pedestrian fencing in Santa Cruz and Cochise Counties, AZ (Segments 1, 3–6);
7. Tucson C: 7 miles of replacement primary pedestrian fencing and 9 miles of new primary
pedestrian fencing in Santa Cruz and Pima Counties, AZ (Segments 1, 3–4);

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State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG –Notice re § 284 Projects
Sierra Club et. al. v. Donald J. Trump, et al., 4:19-cv-00892-HSG – Notice re § 284 Projects
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8. El Paso A: 20 miles of replacement primary pedestrian fencing in El Paso County, TX
(Segment 1);
9. El Paso B: 2 miles of new pedestrian fencing in Luna County, NM (Segment 6);

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10. El Paso C: 10 miles of replacement pedestrian fencing in Dõna Ana and Luna Counties, NM
(Segments 1–2);
11. El Paso D: 3 miles of replacement secondary pedestrian fencing and 18 miles of replacement
primary pedestrian fencing in El Paso County, TX, and 0.5 miles of new primary pedestrian
fencing in Dõna Ana County, NM (Segments 1–4);

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12. Del Rio A: 2 miles of replacement pedestrian fencing in Maverick County, TX (Segment 1);

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13. Del Rio B: 2 miles of replacement pedestrian fencing in Val Verde County, TX (Segment 1).

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To fund these projects, the Secretary of Defense authorized the transfer of $3.831 billion to

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the counter narcotics support line of the Drug Interdiction and Counter-Drug Activities, Defense,

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account. See Seventh Rapuano Decl. ¶ 5. The Secretary directed the transfer of funds pursuant to

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DoD’s general transfer authority under § 8005 of the DoD Appropriations Act for Fiscal Year 2020,

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see Pub. L. No. 116-93, 133 Stat 2317, Div. A, Title VIII, and § 1001 of the National Defense

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Authorization Act for Fiscal Year 2020 (NDAA), see Pub. L. No. 116-92, 133 Stat. 1198, Title X, and

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DoD’s special transfer authority under § 9002 of the FY20 DoD Appropriations Act and § 1520A of

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the FY20 NDAA. Id. The source accounts for the transferred funds are described in Exhibit C to

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the Seventh Rapuano Declaration. Id.

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The U.S. Army Corps of Engineers anticipates that it will award contracts and fully obligate

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the necessary funds for the new § 284 projects no earlier than March 15, 2020. See Second Declaration

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of Jill Stiglich, Director of Contracting for the U.S. Army Corps of Engineers ¶ 4 (Exhibit 2). Several

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of the new § 284 projects are in close proximity to the prior § 284 projects approved in fiscal 2019,

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and the U.S. Army Corps of Engineers intends modify the existing § 284 contracts to add the new

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project work. Id. ¶ 5.a. Because the contractors working on the prior § 284 projects are already

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mobilized in close proximity to the new project areas, ground-disturbing activities and substantial

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construction may begin as soon as the contract modifications are executed, that is, no earlier than

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March 15, 2020. Id. The U.S. Army Corps of Engineers is working to determine which, if any, of the

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additional § 284 projects to undertake using this contract modification process. Id.
State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG –Notice re § 284 Projects
Sierra Club et. al. v. Donald J. Trump, et al., 4:19-cv-00892-HSG – Notice re § 284 Projects
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For the remaining § 284 projects that are not executed through the contract modification

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process described above, the U.S. Army Corps of Engineers intends to undertake a competitive

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contract award process and award task orders to qualified contractors holding a multiple award task

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order contract. See Stiglich Decl. ¶ 5.b. The U.S. Army Corps of Engineers anticipates that it will

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award the first of these task orders and fully obligate the necessary funds for these additional § 284

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projects no earlier than April 7, 2020. Id. For these projects, the U.S. Army Corps of Engineers will

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be prepared to begin ground-disturbing activities as early as five days after task order award and

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substantial construction as early as ten days after task order award. Id.

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DATE: February 13, 2020

Respectfully submitted,
DAVID M. MORRELL
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
Senior Trial Counsel (IN Bar No. 23840-49)
RACHAEL L. WESTMORELAND
KATHRYN C. DAVIS
MICHAEL J. GERARDI
LESLIE COOPER VIGEN
Trial Attorneys
U.S. Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, NW
Washington, D.C. 20530
Tel.: [phone]
Fax: [phone]
E-Mail: [e-mail]

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Counsel for Defendants
State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG –Notice re § 284 Projects
Sierra Club et. al. v. Donald J. Trump, et al., 4:19-cv-00892-HSG – Notice re § 284 Projects
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