DC District Court Follows Ninth Circuit’s Lead Dismissing NABA’s Border Wall Case

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On February 14, the U.S. District Court for the District of Columbia dismissed the complaint of the National American Butterfly Association (NABA) alleging that the U.S. Government’s border wall preparation and law enforcement activities at NABA’s National Butterfly Center, located in South Texas along the Rio Grande River, violated federal environmental laws (National Environmental Policy Act (NEPA)) and the Endangered Species Act (ESA)) as well as NABA’s constitutional rights. The case is National American Butterfly Association v. Nielsen, et al.

On January 25, 2017, the President issued an Executive Order to the Secretary of the Department of Homeland Security (Secretary) to “take all appropriate steps to immediately plan, design, and construct a physical wall along the southern border” with Mexico. A few weeks later, the Secretary issued a memorandum to the U.S. Customs and Border Enforcement to implement the Executive Order. The land occupied by the NABA has been affected by these actions, as well as other actions taken by the Secretary pursuant to her authority under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), located at  8 U.S.C. § 1103.

In addition, the activities of Government work crews have come to the attention of NABA, and some tense encounters are alleged to have taken place between them. In October 2018, the Secretary, pursuant to IIRIRA, waived all legal requirements, including NEPA and the ESA, because she deemed that action necessary to ensure expeditious construction of physical barrier and roads along the border, and this waiver specifically applied to the Rio Grande Valley Border Patrol Sector that encompasses the NABA’s National Butterfly Center.

Citing a recent Ninth Circuit ruling, In re Border Infrastructure Environmental Litigation, decided February 11, 2019, the District Court holds that the Secretary’s use of this statutory waiver is an affirmative defense to the complaint that the Secretary’s actions violated these environmental statutes, and observes that this law also deprives federal courts of jurisdiction to review any non-constitutional causes or claims. With respect to the alleged constitutional claims, the District Court notes that the Fourth Amendment “offers little refuge for unenclosed land near one of the country’s external borders,” that for Constitutional purposes this property is an “open field,” which is unprotected by the Fourth Amendment even when it is privately owned. Similarly, the Fifth Amendment claim must be dismissed because it is predicated on an event that has yet to take place, and indeed may never take place.

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