Friends of the Everglades, Inc. v. Secretary of the U.S. Department of Homeland Security

USCA11 Case: 25-12873 Document: 139-1 Date Filed: 04/21/2026 Page: 1 of 38

FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 25-12873

____________________

FRIENDS OF THE EVERGLADES, INC.,

a Florida 501(c)(3) not-for-profit corporation,

CENTER FOR BIOLOGICAL DIVERSITY,

a 501(c)(3) nonprofit organization,

Plaintiffs-Appellees,

MICCOSUKEE TRIBE OF INDIANS OF

FLORIDA,

Plaintiff-Intervenor-Appellee,

versus

SECRETARY OF THE UNITED STATES

DEPARTMENT OF HOMELAND SECURITY,

ACTING DIRECTOR, OF THE UNITED STATES

IMMIGRATION AND CUSTOMS ENFORCEMENT,

EXECUTIVE DIRECTOR, OF THE FLORIDA DIVISION

OF EMERGENCY MANAGEMENT,

Defendants-Appellants,

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2 Opinion of the Court 25-12873

MIAMI-DADE COUNTY,

a political subdivision of the State of Florida,

Defendant.

____________________

Appeals from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:25-cv-22896-KMW

____________________

Before WILLIAM PRYOR, Chief Judge, and BRASHER and ABUDU, Cir-

cuit Judges.

WILLIAM PRYOR, Chief Judge:

This appeal requires us to decide if the National Environ-

mental Policy Act governs a facility constructed by the State of

Florida to assist in federal immigration enforcement. Using state

employees and state funds, Florida officials, on their own initiative,

constructed a detention center at an airport on state property in the

Florida Everglades. After federal authorities inspected the facility

for compliance with federal standards, they started using it as a de-

tention facility. Environmental advocates, joined by the Mic-

cosukee Tribe, sued state and federal officials for failing to conduct

an environmental review under the Act. The district court prelim-

inarily enjoined the officials to stop construction and to undo some

of the work that had already been completed, and it enjoined the

detention of illegal aliens there. Because the environmentalists and

Tribe failed to prove either a final agency action or federal control,

and because the injunction, in part, violates a statutory prohibition

of enjoining immigration enforcement, we vacate and remand.

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25-12873 Opinion of the Court 3

I. BACKGROUND

On January 6, 2023, Governor Ron DeSantis of Florida de-

clared a state of emergency. He stated that “alarming levels” of il-

legal immigration in Florida in preceding months had imposed “an

unmanageable strain on local resources.” He designated the Exec-

utive Director of the Division of Emergency Management to coor-

dinate the response to the crisis. And he instructed the Director to

“[s]eek direct assistance and enter into agreements” with the fed-

eral government to address the crisis and direct state and local gov-

ernmental agencies to respond to the emergency.

Before 2025, the Dade-Collier Training and Transition Air-

port was a small airport in Big Cypress National Preserve in the

Florida Everglades. On June 23, 2025, the Director used his emer-

gency powers to commandeer the airport. The Director planned

to build a temporary immigration detention facility on the site,

called the South Florida Soft-Sided Facility South.

State officials constructed the facility using state funds. Im-

migration and Customs Enforcement officials completed a “post-

construction compliance check” to ensure that the site meets fed-

eral standards for immigration detention. Florida officials planned

to “seek reimbursement of its expenses from the federal govern-

ment,” but when the district court entered its injunction, Florida

had received no federal funding.

Florida manages the facility using state law enforcement of-

ficers. Several state agencies have agreements with the federal gov-

ernment allowing them to assist in immigration enforcement.

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4 Opinion of the Court 25-12873

These section 287(g) agreements allow the Secretary of Homeland

Security to delegate immigration enforcement to state and local

agencies. See 8 U.S.C. § 1357(g). Under the agreements, state and

local authorities may “perform a function of an immigration of-

ficer,” such as investigating, detaining, or transporting aliens. Id.

§ 1357(g)(1). When doing so, state and local authorities act subor-

dinately to federal officials. Id. § 1357(g)(3). Federal immigration of-

ficials transport detainees to the facility. They turn the aliens over

to state officials who have the discretion to decide “who is detained

at th[e] facility.” Although hundreds of state officials and contrac-

tors were onsite every day when the district court entered its in-

junction, only four federal officers were present to coordinate the

transportation and detention of aliens.

On June 27, 2025, two environmental advocacy groups,

Friends of the Everglades and the Center for Biological Diversity,

sued the Secretary of Homeland Security, the Director of Immigra-

tion and Customs Enforcement, the Executive Director of the Flor-

ida Division of Emergency Management, and Miami-Dade County

in the Southern District of Florida. Friends is a nonprofit organiza-

tion with more than 50,000 members. The Center “is a national,

nonprofit conservation organization” with more than 93,000 mem-

bers nationwide. Their complaint alleged that the state and federal

defendants violated the Administrative Procedure Act by con-

structing an immigration detention center without assessing its en-

vironmental impact under the National Environmental Policy Act

and violated state law. The environmentalists moved for a tempo-

rary restraining order and a preliminary injunction. On July 15, the

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25-12873 Opinion of the Court 5

Miccosukee Tribe of Indians of Florida, which has a reservation

near the facility, moved to intervene as a plaintiff. Its complaint al-

leged a nearly identical claim under the Environmental Policy Act

along with two other claims. The district court granted the Tribe’s

motion.

The district court issued a preliminary injunction against the

officials. It ruled that the environmentalists and Tribe were likely

to succeed on the merits. It first concluded that venue was proper

in the Southern District of Florida. It then decided that construc-

tion of the facility without performing an environmental analysis

was a final agency action under the Administrative Procedure Act

and a “major federal action” under the Environmental Policy Act.

It ruled that federal officials exercised substantial control over the

facility and committed to fund it. It reasoned that the officials’ un-

disputed failure to comply with the Environmental Policy Act

meant that the environmentalists and Tribe were likely to succeed

on the merits. The district court also ruled that the environmental-

ists and Tribe were likely to suffer irreparable harm and that the

environmental harm outweighed any benefits the officials received

from detaining aliens at the facility.

The district court enjoined the officials from “installing any

additional industrial-style lighting . . . or doing any paving, filling,

excavating, or fencing; or doing any other site expansion.” It also

prohibited them from “bringing any additional persons onto the

. . . site who were not already being detained” there. Without the

addition of new detainees and with the “population attrition” of

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6 Opinion of the Court 25-12873

the current detainees, the district court assumed the “camp’s pop-

ulation” would “programmatic[ally]” fall and gave the officials 60

days to remove “temporary fencing,” “lighting fixtures,” and “all

generators, gas, sewage, and other waste and waste receptacles that

were installed to support this project.” A motions panel stayed the

injunction and the underlying action pending this appeal.

II. STANDARDS OF REVIEW

Two standards govern our review. We “review for abuse of

discretion a ruling on a motion for a preliminary injunction.” Vital

Pharms., Inc. v. Alfieri, 23 F.4th 1282, 1288 (11th Cir. 2022). “[B]ut

we review de novo the legal conclusions” that support the injunc-

tion. Upside Foods Inc. v. Comm’r, Fla. Dep’t of Agric. & Consumer

Servs., No. 24-13640, slip. op. at 10 (11th Cir. Mar. 23, 2026) (citation

and internal quotation marks omitted). And “[w]e review ques-

tions of statutory interpretation de novo.” Hylton v. U.S. Att’y Gen.,

992 F.3d 1154, 1157 (11th Cir. 2021).

The Tribe suggests that our review must offer the district

court wide discretion in “the application of law to facts.” But this

theory “runs headlong into a wall of our precedent expressly hold-

ing” that we review “constituent legal determinations de novo.” Fla.

Agency for Health Care Admin. v. Adm’r for Ctrs. for Medicare & Medi-

caid Servs., 161 F.4th 765, 776 n.1 (11th Cir. 2025) (italics added). So

we review the legal conclusions, including the application of law to

fact, de novo. Cf. United States v. Barsoum, 763 F.3d 1321, 1328 (11th

Cir. 2014).

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25-12873 Opinion of the Court 7

III. DISCUSSION

We divide our discussion into two parts. First, we explain

that the district court abused its discretion by entering the injunc-

tion. Second, we explain that the injunction also violates a statutory

bar on enjoining immigration enforcement.

A. The District Court Abused Its Discretion by Entering the Injunction.

Last year, the Supreme Court made clear that the National

Environmental Policy Act “is a procedural cross-check, not a sub-

stantive roadblock,” designed to “inform agency decisionmaking.”

Seven Cnty. Infrastructure Coal. v. Eagle County, 145 S. Ct. 1497, 1507

(2025). The Act requires agencies responsible for “certain infra-

structure projects” to “prepare an environmental impact state-

ment” that “address[es] the significant environmental effects of a

proposed project and identif[ies] feasible alternatives that could

mitigate those effects.” Id. It creates no cause of action. So the en-

vironmentalists and Tribe proceed “under the Administrative Pro-

cedure Act,” Ouachita Watch League v. Jacobs, 463 F.3d 1163, 1173

(11th Cir. 2006) (citation and internal quotation marks omitted),

which provides relief only from a “final agency action.” 5 U.S.C.

§ 704.

A preliminary injunction “is an extraordinary and drastic

remedy not to be granted unless the movant clearly established the

burden of persuasion as to each of the four prerequisites.” Siegel v.

LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc) (citation and

internal quotation marks omitted). To win an injunction, a plaintiff

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8 Opinion of the Court 25-12873

must prove he “has a substantial likelihood of success on the mer-

its,” that he will suffer “irreparable injury . . . unless the injunction

issues,” that “the threatened injury . . . outweighs whatever dam-

age the proposed injunction may cause the opposing party,” and

that “the injunction would not be adverse to the public interest.”

Id. The failure to establish any of these requirements is fatal. Id.

The environmentalists and the Tribe failed to prove a likeli-

hood of success for two reasons. First, they failed to challenge a

final agency action under the Administrative Procedure Act. Sec-

ond, they failed to prove a major federal action under the Environ-

mental Policy Act.

1. The Environmentalists and Tribe Failed to Prove a Final

Agency Action.

The Administrative Procedure Act permits federal courts to

review only a “final agency action.” 5 U.S.C. § 704. The environ-

mentalists and Tribe argue that “the decision not to issue an [envi-

ronmental impact statement] or conduct an [environmental assess-

ment] and then construct a detention camp qualifies as final agency

action.” We disagree.

The Administrative Procedure Act permits review only of

“circumscribed, discrete agency actions.” Norton v. S. Utah Wilder-

ness All., 542 U.S. 55, 62 (2004). It does not allow federal courts to

review “flaws in [an agency’s] entire program” of decisionmaking.

Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 892–93 (1990) (internal

quotation marks omitted). It instead requires courts to follow a

“case-by-case approach” that reviews challenged actions one at a

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25-12873 Opinion of the Court 9

time. Id. at 894. Courts may not infer “an abstract decision apart

from specific agency action.” Biden v. Texas, 142 S. Ct. 2528, 2545

(2022).

Florida, not federal, officials constructed the facility. They

control the land and “entirely” built the facility at state expense.

The only federal action the environmentalists can identify is the de-

cision not to conduct an environmental review. And that decision

alone, as all parties agree, is not final agency action. See Pub. Citizen

v. U.S. Trade Representative, 5 F.3d 549, 552 (D.C. Cir. 1993) (“[A]n

agency’s failure to prepare an [environmental impact statement],

by itself, is not sufficient to trigger [Administrative Procedure Act]

review in the absence of identifiable substantive agency action.”).

The district court circumvented this problem by finding

“significant evidence . . . that the facility’s construction was re-

quested and fully funded by the federal government.” But an

agency request is not a final agency action. See Reliable Automatic

Sprinkler Co. v. Consumer Prod. Safety Comm’n, 324 F.3d 726, 731

(D.C. Cir. 2003) (holding that an agency’s “request for voluntary

corrective action . . . do[es] not constitute final agency action”). A

request cannot determine rights or obligations until another party

acts on it, and when it does, that decision then becomes “legally

binding.” Id. at 732. The agency has taken no action to fund the pro-

ject. Even congressional appropriation of funds for a project will

not allow challengers to an agency’s use of those funds to obtain

relief “until the [agency] has reviewed a grant application and de-

cided to disburse the funds.” Rattlesnake Coal. v. EPA, 509 F.3d 1095,

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10 Opinion of the Court 25-12873

1103 (9th Cir. 2007). Until Homeland Security officials decide to

fund the facility, no final agency action occurs.

Nor do federal detention criteria and the decision to enter

into section 287(g) agreements constitute final agency action.

Adoption of federal standards cannot “transform a state or local

project into a federal one.” Atlanta Coal. on Transp. Crisis, Inc. v. At-

lanta Reg’l Comm’n, 599 F.2d 1333, 1347 (5th Cir. 1979) (quoting City

of Boston v. Volpe, 464 F.2d 254, 258 (1st Cir. 1972)). The adoption of

those standards is a state action, not a federal one: compliance with

the standards was a consequence of the decision of Florida officials

to build a detention facility on state property using state funds and

employees. And the Secretary’s decision to enter into an agreement

that complies with section 287(g) appears to be “committed to

agency discretion by law,” under the Administrative Procedure

Act. 5 U.S.C. § 701(a)(2); see also 8 U.S.C. § 1357(g)(1) (stating that

the Secretary “may enter into a written agreement with a State” to

assist in immigration enforcement (emphasis added)); Heckler v.

Chaney, 470 U.S. 821, 830 (1985) (explaining that a matter is com-

mitted to agency discretion when “a court would have no mean-

ingful standard against which to judge the agency’s exercise of dis-

cretion”). Federal law also provides that “no court shall have juris-

diction to review . . . any other decision or action of . . . the Secre-

tary . . . the authority for which is specified under this subchapter

to be in the discretion of . . . the Secretary.” 8 U.S.C.

§ 1252(a)(2)(B)(ii). Because section 287 falls under “this subchap-

ter,” see Zafar v. U.S. Att’y Gen., 461 F.3d 1357, 1361 (11th Cir. 2006),

the decision to enter into an agreement under that section appears

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25-12873 Opinion of the Court 11

to fall within this jurisdictional bar. Perhaps for these reasons, the

district court did not enjoin the officials from entering into an

agreement under section 287.

Having failed to challenge an individual agency action, the

Tribe tries to assemble a constellation of agency choices and trans-

form them into final agency action. In its telling, “a single federal

decision” was “carried out in sequence.” But the Administrative

Procedure Act allows plaintiffs to challenge only agency actions,

not decisions. For a decision to amount to an agency action, it must

be instantiated in an “agency statement . . . designed to implement

that decision.” Biden, 142 S. Ct. at 2545 (internal quotation marks

omitted) (quoting 5 U.S.C. § 551(4)). Without that agency state-

ment, a decision—no matter how firm—is not final agency action.

Because the environmentalists and Tribe did not challenge a

final agency action, the district court abused its discretion when it

entered the preliminary injunction. Our precedents treat this issue

as “jurisdictional.” Fla. Agency for Health Care Admin., 161 F.4th at

776; see also Nat’l Parks Conservation Ass’n v. Norton, 324 F.3d 1229,

1236, 1240 (11th Cir. 2003) (holding that “federal jurisdiction is . . .

lacking when the administrative action in question is not ‘final’”).

But at least one circuit has held that the issue is not jurisdictional.

See Trudeau v. FTC, 456 F.3d 178, 183–85 (D.C. Cir. 2006) (holding

that because the Administrative Procedure Act does not “confer”

or “restrict[]” jurisdiction, the failure to satisfy a statutory cause of

action cannot “deprive a federal court of any jurisdiction it other-

wise has”). Nevertheless, whether the issue is jurisdictional or not,

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12 Opinion of the Court 25-12873

the environmentalists and Tribe failed to prove a likelihood of suc-

cess on the merits.

2. The Environmentalists and Tribe Failed to Prove a Major

Federal Action.

The Environmental Policy Act applies only to “major

[f]ederal actions significantly affecting the quality of the human en-

vironment.” 42 U.S.C. § 4332(C). And it defines “major [f]ederal ac-

tion” as “an action that the agency carrying out such action deter-

mines is subject to substantial [f]ederal control and responsibility.”

Id. § 4336e(10)(A). In 2023, Congress amended the Act to exclude

“non-[f]ederal action[s]” “with no or minimal [f]ederal funding; or

. . . with no or minimal [f]ederal involvement where a [f]ederal

agency cannot control the outcome of the project.” Fiscal Respon-

sibility Act of 2023, Pub. L. No. 118-5, § 321, 137 Stat. 10, 45 (codi-

fied at 42 U.S.C. § 4336e(10)(B)(i)).

The 2023 amendments clarified that a non-federal action,

like a state construction of a facility, may be converted into a fed-

eral action only when both federal funding and federal control are

present. When a statute joins two conditions with “or,” we treat it

as a “disjunctive list.” ANTONIN SCALIA & BRYAN A. GARNER,

READING LAW: THE INTERPRETATION OF LEGAL TEXTS § 12, at 116

(2012). The use of a disjunctive to join two items “signal[s] that the

two are alternatives and not a linked pair.” Dacostagomez-Aguilar v.

U.S. Att’y Gen., 40 F.4th 1312, 1316 (11th Cir. 2022). So a non-federal

action is excluded if it either received “no or minimal [f]ederal fund-

ing” or was subject to “no or minimal [f]ederal involvement.” 42

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25-12873 Opinion of the Court 13

U.S.C. § 4336e(10)(B)(i). To qualify as a major federal action, it

must receive more than minimal federal funding and be subject to

more than minimal federal control.

The environmentalists contest this reading. They insist that

any action, including a non-federal action, that is “subject to sub-

stantial [f]ederal control and responsibility” under subsec-

tion (10)(A), must satisfy the Act. But that general definition ad-

dresses federal actions, not non-federal actions. It refers to an

“agency carrying out [an] action” and leaves the determination

whether the agency exercises substantial control to the agency it-

self. Id. § 4336e(10)(A). This definition would not encompass an ac-

tion not undertaken by a federal agency. As the 2023 amendments

confirm, the rules for non-federal actions are different.

The environmentalists protest that requiring both federal

funding and federal control would “upend decades of interpretive

caselaw.” Yet, the amendments sought to correct misinterpreta-

tions by federal courts. As the Supreme Court has explained, the

amendments “reinforce[d] the basic principles that [the Act], cor-

rectly interpreted, already embodied but that have been too often

overlooked.” Seven Cnty., 145 S. Ct. at 1512 n.3.

The environmentalists and Tribe must prove both that the

facility was federally funded and that it was subject to federal con-

trol. But they failed to do so because the facility is not federally

controlled. As a result, we need not address whether it was feder-

ally funded.

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14 Opinion of the Court 25-12873

The action the environmentalists and Tribe challenge is the

construction of the facility. Their complaints allege that the “con-

struction of an immigration detention center” is the major federal

action they attack. The environmentalists admit the same in their

brief.

The facility was constructed “with no or minimal [f]ederal

involvement,” and Homeland Security could not “control the out-

come of the project.” 42 U.S.C. § 4336e(10)(B)(i)(II); see also United

States v. S. Fla. Water Mgmt. Dist., 28 F.3d 1563, 1573 (11th Cir. 1994)

(holding that a project cannot be called federal “when the state

agencies retain their state law authority to make the decisions con-

cerning the project”). As the Secretary explains, Florida officials re-

tained final authority over every decision regarding the project,

from “the size of the detention facility” and “how many beds it has”

to “who will build it, or what materials will be used.” Indeed, if

Florida officials decided to stop building or to dedicate the land to

addressing a new emergency, such as hurricane relief, federal offi-

cials could not overrule them. Federal authority is, at most, indi-

rect: it is involved in the construction only insofar as it sets the

terms for which the facility may be used for detention of aliens, but

Florida officials dedicated its land to that use. The Environmental

Policy Act applies “only when there is federal decision-making.” S.

Fla. Water Mgmt. Dist., 28 F.3d at 1573. Federal officials made no

construction decision capable of triggering the Act.

The district court disregarded this fact and instead reasoned

that “any state officials working on site with detainees are doing so

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25-12873 Opinion of the Court 15

as deputized federal immigration officers.” It subsumed the con-

struction of the facility—the “action” done without an environ-

mental review—into its later operation. In doing so, it relied on the

anti-segmentation rule, which condemns “artificially dividing a

major federal action into smaller components, each without a ‘sig-

nificant’ impact,” to evade the Act. Okeelanta Corp. v. U.S. Army

Corps of Eng’rs, 132 F.4th 1320, 1344 (11th Cir. 2025) (citation and

internal quotation marks omitted). But invoking it here is an exer-

cise in bootstrapping: the rule “does not require the aggregation of

federal and non-federal actions.” Big Bend Conservation All. v. FERC,

896 F.3d 418, 424 (D.C. Cir. 2018). In other words, ineligible federal

actions and ineligible state actions will not add up to eligible federal

actions.

The federal supervision of and support for immigration en-

forcement at the facility is not the subject of the claim under the

Environmental Policy Act; the construction of the Facility is. On-

going control of operations—and the provision of technical sup-

port for those operations—is irrelevant to whether the construc-

tion of the facility required an environmental review.

The environmentalists insist that immigration enforcement

is the “purpose for which the facility was built.” And “immigration

enforcement is exclusively a federal power.” But states have sover-

eign power to choose to assist federal law enforcement. See Arizona

v. United States, 567 U.S. 387, 411 (2012) (“Consultation between

federal and state officials is an important feature of the immigration

system.”).

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16 Opinion of the Court 25-12873

Congress recognized this state power in creating sec-

tion 287(g) agreements. That a state program aims to assist the fed-

eral government in its exercise of sovereign power does not render

the program subject to federal control. The state may change its

policy and dedicate its resources to another purpose, as it may

withdraw from section 287(g) agreements in its discretion.

The environmentalists argue that because “federal authori-

zation” is required for the facility to “operate [as] an immigration

detention center,” the Secretary of Homeland Security controls the

outcome of the project. But the need for federal approval to use a

project for a purpose does not establish federal control; the non-

federal actor still chooses the purpose of its project. A property

owner who builds an office building must comply with the Ameri-

cans with Disabilities Act, but his compliance with federal law does

not make it a federal building. Because Florida “retain[ed its] state

law authority to make the decisions concerning the project,” the

facility was not subject to federal control and its construction did

not trigger the Act. S. Fla. Water Mgmt. Dist., 28 F.3d at 1573.

Because the environmentalists and Tribe failed to prove a

likelihood of success on the merits of their claim, we do not discuss

whether they proved irreparable harm or whether the balance of

the equities favored an injunction. We also do not address the dis-

trict court’s ruling that venue was proper in the Southern District

of Florida. The expedited nature of these proceedings created a lim-

ited record insufficient to support a decision on venue. On remand,

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25-12873 Opinion of the Court 17

Florida and the Secretary may object to venue in a motion to dis-

miss or a responsive pleading and may compile an appropriate rec-

ord. The district court will then need to address venue in the light

of that more capacious record.

The district court erroneously concluded that the officials

had waived their venue objection by conduct. Extraordinary cir-

cumstances might permit a court to rule that parties waived their

venue objections by conduct despite raising them more than 30

days before the Rule 12 deadline. The circumstances here—where

Florida and the Secretary were faced with significant and time-sen-

sitive matters immediately once litigation commenced—do not

support waiver. But because we conclude that the environmental-

ists and the Tribe are unlikely to succeed on the merits, we leave

the venue issue to the district court.

B. The District Court’s Injunction Violated the Statutory Bar on En-

joining Immigration Enforcement.

Even if the environmentalists and Tribe were likely to suc-

ceed on their claim, we would still vacate a portion of the injunc-

tion. The district court enjoined federal officials from “bringing any

additional persons onto the . . . site who were not already being

detained” there. The injunction conflicts with a provision of the

Illegal Immigration Reform and Immigrant Responsibility Act that

strips the “authority” of district courts “to enjoin or restrain the op-

eration of [sections 1221–1231 of Title 8 of the United States Code]

. . . other than with respect to the application of such provisions to

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18 Opinion of the Court 25-12873

an individual alien.” 8 U.S.C. § 1252(f)(1); Reno v. Am.-Arab Anti-Dis-

crimination Comm., 525 U.S. 471, 481 (1999).

The injunction required federal officials “to refrain from ac-

tions that . . . in the Government’s view . . . are allowed” by the

covered sections. Garland v. Aleman Gonzalez, 142 S. Ct. 2057, 2065

(2022). The Secretary has the authority to “arrest[] and detain[]”

aliens pending removal proceedings. 8 U.S.C. § 1226(a). After a fi-

nal order of removal is issued, he must detain them pending re-

moval. See id. § 1231(a)(2). He must also “arrange for appropriate

places of detention” for the aliens he detains. Id. § 1231(g)(1). An

injunction that prevents him from detaining aliens in a place of his

choosing “enjoin[s] or restrain[s] the operation[s]” of sec-

tions 1231(g) and 1226(a).

The district court concluded that “[a]n order compelling

[Environmental Policy Act] compliance . . . simply requires De-

fendants to follow the environmental procedures that Congress

imposed.” It acknowledged that compliance might have a “collat-

eral effect on immigration operations,” but it reasoned that the ef-

fect does not amount to a restraint on operations in violation of

section 1252(f).

This logic could work only if the district court had issued a

different injunction. If, for instance, it had enjoined federal con-

struction of a non-operational detention facility pending compli-

ance with the Act, any impact on immigration enforcement would

be collateral. But the injunction it issued bars the Secretary from

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25-12873 Opinion of the Court 19

detaining aliens at a facility he designates. The restrictions on im-

migration enforcement are not collateral.

The environmentalists insist, quoting Texas v. Department of

Homeland Security, that section 1252(f) is not triggered because it

“does not encompass an injunction against statutes it does not

cross-reference.” 123 F.4th 186, 209 (5th Cir. 2024). Because sec-

tion 1252(f)(1) does not refer to the Environmental Policy Act, the

environmentalists say the injunction must be permissible. But the

statute itself defeats this theory.

Section 1252(f)(1) applies “[r]egardless of the nature of the

action or claim.” Aleman Gonzalez, 142 S. Ct. at 2066 (internal quo-

tation marks omitted) (holding that “the reach of [sec-

tion] 1252(f)(1)” does not “depend on the nature of the claim in

question”). The question is whether the injunction restrains the op-

eration of sections 1226 or 1231, which this injunction expressly

does. Section 1252(f)(1) leaves us no choice but to vacate this por-

tion of the injunction regardless of the merits of the underlying fed-

eral claims.

IV. CONCLUSION

We VACATE the preliminary injunction and REMAND for

further proceedings.

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25-12873 ABUDU, J., Dissenting 1

ABUDU, Circuit Judge, Dissenting:

While the grant of a preliminary injunction is an “extraordi-

nary and drastic remedy,” Vital Pharms., Inc. v. Alfieri, 23 F.4th 1282,

1291 (11th Cir. 2022) (citing Forsyth Cnty. v. U.S. Army Corps of

Eng’rs, 633 F.3d 1032, 1039 (11th Cir. 2011)), once granted, a party

seeking vacatur of such an injunction bears the heavy burden of

showing that the district court abused its discretion. Here, the De-

partment of Homeland Security (“DHS”), the Director of the U.S.

Immigration and Customs Enforcement (“ICE”), and the other De-

fendant-Appellants do not meet that burden. Nevertheless, a ma-

jority of this court has once again relied upon its own factual find-

ings and interpretation of this record to determine that the district

court abused its discretion for reaching a different outcome than

the panel itself would have.

In doing so, the majority absolves both the state and federal

defendants of their collective responsibility to the human beings

currently detained in the Facility, the Tribe members, and the Big

Cypress National Preserve (“BCNP”) simply because (1) the federal

government failed to formalize its agreement with Florida in a

manner the majority deems sufficient, and (2) one day in the un-

known future the state of Florida could decide it no longer wants

to participate in the detention scheme. It cannot, and should not,

be the case that the federal government, which all parties agree has

exclusive control over the detention of migrants, can abdicate its

responsibility to exercise that control in a way that is consistent

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2 ABUDU, J., Dissenting 25-12873

with federal law simply because, here, Florida has supported DHS

and ICE in carrying out this endeavor.

As Judge Jordan explained in his well-reasoned dissent from

the prior panel’s order staying the preliminary injunction, the dis-

trict court did not abuse its discretion in issuing the preliminary in-

junction, as it “did not clearly err in its factual findings or oth-er-

wise commit a ‘clear error of judgment’ in concluding (a) that the

plaintiffs (i) demonstrated a substantial likelihood of success on

their” National Environmental Protection Act (“NEPA”) “claim

and (ii) showed that they would likely suffer irreparable harm ab-

sent preliminary injunctive relief, and (b) that the balance of equi-

ties and the public interest favored the plaintiffs.” Friends of the Ev-

erglades v. Sec’y of U.S. Dep’t of Homeland Sec., No. 25-12873, 2025

WL 2598567, at *17 (11th Cir. Sept. 4, 2025) (unpublished) (Jordan,

J., dissenting) (internal citation omitted) (quoting United States v.

Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc)).

In addition to the reasons identified in Judge Jordan’s dis-

sent, the majority opinion also errs by minimizing the federal gov-

ernment’s role and responsibility in immigration detention, while

mischaracterizing the scope of the district court’s injunction on the

federal government’s ability to exercise control over said deten-

tion. For these reasons, I respectfully dissent.

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25-12873 ABUDU, J., Dissenting 3

I. Our evaluation of the district court’s preliminary

injunction must be grounded in an appropriate ap-

plication of the standard of review.

We review a district court’s ruling on a motion for prelimi-

nary injunction for abuse of discretion. Vital Pharms., 23 F.4th at

1288. “This scope of review will lead to reversal only if the district

court applies an incorrect legal standard, or applies improper pro-

cedures, or relies on clearly erroneous factfinding, or if it reaches a

conclusion that is clearly unreasonable or incorrect.” Forsyth Cnty.,

633 F.3d at 1039 (quoting Schiavo ex rel. Schindler v. Schiavo, 403 F.3d

1223, 1226 (11th Cir. 2005)). Even when we review legal conclu-

sions, including the application of law to fact, de novo, that does not

prevent us from affording the district court’s factual findings the

appropriate level of deference required under the abuse of discre-

tion and clear error standards. Id. (“[A]n abuse of discretion stand-

ard recognizes there is a range of choice within which we will not

reverse the district court even if we might have reached a different

decision.” (quoting Schiavo, 403 F.3d at 1226)). When we review

factual findings for clear error, our review is very deferential. Cu-

mulus Media, Inc. v. Clear Channel Commc’ns, Inc., 304 F.3d 1167, 1171

(11th Cir. 2002) (“We begin our [preliminary injunction] review by

noting how deferential it is. . . . [T]he trial court is in a far better

position than this Court to evaluate that evidence, and we will not

disturb its factual findings unless they are clearly erroneous.”). We

may not set aside a finding of fact when it is supported by the testi-

mony of witnesses who “told a coherent and facially plausible story

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4 ABUDU, J., Dissenting 25-12873

that is not contradicted by extrinsic evidence.” OHI Asset (VA) Mar-

tinsville, SNF, LLC v. Wagner (In re Wagner), 115 F.4th 1296, 1303

(11th Cir. 2024) (quoting Anderson v. City of Bessemer City, 470 U.S.

564, 575-76, (1985)); see also United States v. Saingerard, 621 F.3d

1341, 1343 (11th Cir. 2010) (explaining when a factfinder chooses

between two permissible views of the evidence, its findings are not

clearly erroneous).

The majority expands the scope of our review of the district

court’s injunction under the guise of evaluating the district court’s

legal conclusions, but in doing so, does not grapple with the ongo-

ing trend in this circuit to “ignor[e] and/or revis[e] the district

court’s factual findings and fail[ ] to apply the clear error stand-

ard . . . .” Fla. Decides Healthcare, Inc. v. Fla. Sec’y of State, No. 25-

12370, 2025 WL 3738554, at *9 (11th Cir. Sept. 9, 2025) (Abudu, J.,

dissenting) (quoting Otto v. City of Boca Raton, 41 F.4th 1271, 1285

(11th Cir. 2022) (Jordan, J., dissenting)). We are not supposed to

redetermine the facts for ourselves. Today, by vacating the district

court’s preliminary injunction, the majority ignores the district

court’s careful and extensive fact finding, attributing fault and error

where there was none.

II. Florida’s agreement to help manage the facility

does not preclude the logical conclusion that DHS

and ICE’s involvement constitutes a final federal

agency action.

The district court employed the two-part test outlined in

Bennett v. Spear, 520 U.S. 154, 177–78 (1997), to conclude that there

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25-12873 ABUDU, J., Dissenting 5

was a final agency action. In doing so, the district court reasonably

relied on its factual findings made during the four-day evidentiary

hearing. In relevant part, the district court, after reviewing “plans

and photos showing [the] operation of the camp” found that it al-

ready “involved paving approximately 800,000 square feet of land,

installation of industrial lighting impacting the night sky at least 20

to 30 miles away, and enough residential infrastructure to house

thousands of detainees and on-site staff.” As for the scale of the

facility’s operation, the district court found that it “employs as

many as 1,000 staff members . . . and can house multiple thousands

of detainees at any given time.” Based on this evidence, the district

court determined that “the facility has undergone substantial con-

struction and is currently operational.” Next, relying on testimony

from members of the environmental group and the Tribe’s em-

ployees, the district court found that failure to issue an Environ-

mental Impact Statement (“EIS”) prior to constructing the facility

unlawfully denied the environmentalists and the Tribe an oppor-

tunity to submit comments on the facility. Based on these factual

findings, the district court concluded that the decision not to issue

an EIS prior to the completion of the facility constituted a final

agency action, as it “represent[ed] a determinative position on the

matter and . . . adversely affected Plaintiffs’ recreational, conserva-

tional, and aesthetic interests.” This is consistent with the require-

ments that a final agency action “mark[s] the consummation of the

agency’s decisionmaking process” and is an action “by which

‘rights or obligations have been determined,’ or from which ‘legal

consequences will flow.’” Id. at 178 (first quoting Chi. & S. Air

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6 ABUDU, J., Dissenting 25-12873

Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948); and then

quoting Port of Bos. Marine Terminal Ass’n. v. Rederiaktiebolaget

Transatlantic, 400 U.S. 62, 71 (1970)).

The majority maintains that there is no final agency action

here because: (1) an agency request to build the Facility cannot be

a final agency action; (2) Florida built the Facility, not the federal

government; (3) the district court lacked authority to review Flor-

ida’s decision to enter into the 287(g) agreements; and (4) there was

no agency statement. In doing so, the majority relies on the un-

supported position that so long as the state actually built the facil-

ity, it does not matter that the federal government requested the

state build it. The majority misconstrues and minimizes the signif-

icance of the federal government’s request to Florida in this con-

text.

The agreement between Florida, DHS, and ICE is not an ex-

ercise in cooperative federalism; it is a clear and classic delegation

of federal authority. Cf. Kentuckians for the Commonwealth v. U.S.

Army Corps of Eng’rs, 746 F.3d 698, 701–02 (6th Cir. 2014) (evaluat-

ing NEPA violation relating to scheme established by the Surface

Mining Control and Reclamation Act of 1977 which “set up system

of ‘cooperative federalism,’ in which state governments could opt

in to regulating coal surface mining in their states so long as they

establish agencies to enact and administer their own regulatory

programs” (citing and quoting Hodel v. Va. Surface Mining & Recla-

mation Ass’n, 452 U.S. 264, 289 (1981))). As the district court found,

the record shows that the federal government enlisted Florida to

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25-12873 ABUDU, J., Dissenting 7

assist in executing its immigration detention practices, not as an

equal participant in the scheme, but instead as a deputy of the fed-

eral government operating at its request. The facility would not,

and could not, have been built and used as an immigration deten-

tion center without the federal defendants’ request, as DHS and

ICE retained “exclusive jurisdiction over the regulation of [immi-

gration] on non-federal lands” and maintained oversight of the

state’s actions. Id. at 702 (quoting and discussing 30

U.S.C. § 1253(a)). Accordingly, the district court did not violate the

anti-segmentation rule when it based its conclusion that the envi-

ronmentalists and the Tribe had proven that a final agency action

existed on evidence that DHS and ICE asked Florida to build the

facility and committed to funding it.

It is true that in some contexts, “an agency request is not a

final agency action.” Maj. Op. at 10 (citing Reliable Automatic Sprin-

kler Co. v. Consumer Prod. Safety Comm’n, 324 F.3d 726, 731 (D.C. Cir.

2003)). However, in Reliable Automatic Sprinkler Company, the Con-

sumer Product Safety Commission (“CPSC”) requested that the ap-

pellant manufacturer voluntarily address a significant hazard with

one of its products—automatic sprinkler heads—through correc-

tive action. 324 F.3d at 731 (finding no final federal agency action

where the agency’s conduct simply “amount[ed] to ‘an investiga-

tion of appellant’s sprinkler heads, a statement of the agency’s in-

tention to make a preliminary determination that the sprinkler

heads present a substantial product hazard, and a request for vol-

untary corrective action”). DHS and ICE, on the other hand, en-

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8 ABUDU, J., Dissenting 25-12873

tered into a bilateral agreement that allows Florida to assist in car-

rying out this otherwise purely federal function by housing individ-

uals solely under the federal government’s responsibility. Federal

“legal consequences” arose from Florida’s completion of the facil-

ity, per its agreement with DHS and ICE, and the federal govern-

ment’s related decision not to issue an EIS—namely, the environ-

mentalists and the Tribe were deprived of their right to comment.

See Bennett, 520 U.S. at 178 (explaining that final agency action is an

action “from which ‘legal consequences’ will flow” (quoting

Rederiaktiebolaget Transatlantic, 400 U.S. at 71)). “The TNT site is

located within Big Cypress National Preserve (“BCNP”) and the

Big Cypress Area, which the Florida legislature has designated as

‘an area of critical state concern’ with the intention to ‘conserve

and protect the [area’s] natural resources and scenic beauty.’” The

location of the facility creates environmental concerns that the dis-

trict court found should have been addressed in an EIS. Without

an EIS, the environmentalists and the Tribe did not have an avenue

to express their concerns about the environmental impact to this

protected region prior to it being built.

Perhaps the clearest evidence of federal agency action here

are the 287(g) agreements. While the majority opines that the

“[a]doption of federal standards cannot ‘transform a state or local

project into a federal one’” Maj. Op. at 10 (quoting Atlanta Coal. on

Transp. Crisis, Inc. v. Atlanta Reg’l Comm’n, 599 F2d 1333, 1347 (5th

Cir. 1979)), here, the 287(g) agreements show that Florida did not

adopt such standards in the mere “hope of qualifying for federal

assistance.” Atlanta Coal. on Transp. Crisis, 599 F.2d at 1347 (quoting

USCA11 Case: 25-12873 Document: 139-1 Date Filed: 04/21/2026 Page: 28 of 38

25-12873 ABUDU, J., Dissenting 9

City of Boston v. Volpe, 464 F.2d 254, 258 (1st Cir. 1972)). 1 Unlike the

federal funds at issue in Atlanta Coalition, which were limited to the

planning process, DHS and ICE’s promise to Florida was tied to the

completion of the detention facility, “impl[ying] a commitment by

[a] federal agency to fund [the detention facility].” Id. The 287(g)

agreements show that DHS is committed to the detention facility

beyond the planning stage. Additionally, the project was “pre-

sented to the appropriate federal agency,” in this case DHS, and,

therefore, the relevant decision makers were not just the state de-

fendants, but also the federal defendants. Id. The majority’s mini-

mization of DHS and ICE’s involvement in the decision to build

and operate the detention facility is directly controverted by the

district court’s factual findings which, in the absence of any clear

error, are owed deference.

III. DHS and ICE do not relinquish all control and re-

sponsibility simply by delegating some of their au-

thority to the state.

The majority once again improperly replaces the district

court’s extensive factual findings with its own to conclude that the

environmentalists and the Tribe failed to prove that the facility was

federally funded and subject to federal control. The majority also

heavily relies on the possibility that one day Florida may choose to

1 Decisions of the Fifth Circuit prior to the close of business on September 30,

1981, “shall be binding as precedent in the Eleventh Circuit.” Bonner v. City of

Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).

USCA11 Case: 25-12873 Document: 139-1 Date Filed: 04/21/2026 Page: 29 of 38

10 ABUDU, J., Dissenting 25-12873

opt-out of the detention scheme as evidence that there is insuffi-

cient federal control. The majority’s reasoning is problematic on

so many levels, but a few especially are in desperate need of atten-

tion.

First and foremost, NEPA does not require a complete ab-

sence of state involvement in order for substantial federal control

to exist. See United States v. S. Fla. Water. Mgmt. Dist., 28 F.3d 1563,

1572 (11th Cir. 1994) (“There are no clear standards for the defining

point at which federal participation transforms a state project into

federal action.”). Instead, Section 4336e(10) of NEPA defines “ma-

jor federal action” as an action that “is subject to substantial Federal

control and responsibility.” 42 U.S.C. § 4336e(10)(A) (emphasis

added). Contrary to the majority’s assertion, the fact that a state

retains the ability to decide one day to opt-out of this exercise of

federal control by no longer volunteering to serve as an arm of the

federal government is not sufficient to extinguish “substantial” fed-

eral control here. In fact, the majority cannot point to any statu-

tory language or case law to support such a rigid requirement. The

majority thus rewrites the term “substantial” in NEPA to mean

complete and forevermore. But see Korman v. HBC Fla., Inc., 182

F.3d 1291, 1296 (11th Cir. 1999) (“It is not the business of courts to

rewrite statutes . . . .”); Blount v. Rizzi, 400 U.S. 410, 419 (1971) (“[I]t

is for Congress, not this Court, to rewrite the statute.”).

Next, relegating the federal government’s involvement here

to no more than a removed supervisor or supporter of state action

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25-12873 ABUDU, J., Dissenting 11

grossly understates DHS and ICE’s role in the creation and opera-

tion of the detention facility. This is most evident in the majority’s

weak analogy to the relationship between a property owner con-

structing an office building and having to comply with federal

standards that ensure people in wheelchairs or who have other mo-

bility issues can still access the building. Aside from the obvious

distinction that the state of Florida is not a private actor, the state

defendants have partnered with DHS and ICE in carrying out the

President’s immigration detention goals which he gets to set prior

to any necessary judicial constraints. If anything, the majority’s

analogy highlights that the private property owner’s building must

be accessible to all members of the public. Here, the detention fa-

cility’s only goal is to house thousands of people under DHS and

ICE’s control, in a secluded area, away from the public, without

any accountability. If not for its partnership with DHS and ICE,

Florida’s housing of these individuals (and in some cases families)

would be more akin to kidnapping and, at its most extreme, per-

haps human trafficking. The state cannot detain a non-citizen with-

out the proper authority to do so. Arizona v. United States, 567 U.S.

387, 410 (2012) (“There may be some ambiguity as to what consti-

tutes cooperation under the federal law; but no coherent under-

standing of the term would incorporate the unilateral decision of

state officers to arrest an alien for being removable absent any re-

quest, approval, or other instruction from the Federal Govern-

ment.”); see also Menocal v. GEO Grp., Inc., 635 F. Supp. 3d 1151,

1189–90 (D. Colo. 2022) (in lawsuit brought by former detainees at

a private immigration detention center alleging violations of the

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12 ABUDU, J., Dissenting 25-12873

Trafficking Victims Protection Act’s (“TVPA”) forced labor provi-

sion, concluding that plaintiffs sufficiently demonstrated that they

labored under the threat of serious harm when they were threat-

ened with 72 hours in segregation for failure to work); Barrientos v.

CoreCivic, Inc., 951 F.3d 1269, 1278–80 (11th Cir. 2020) (in class ac-

tion brought by current and former detainees at federal immigra-

tion detention facility alleging violations of TVPA from forced la-

bor program, holding that TVPA applies to private for-profit con-

tractors operating federal immigration detention facilities); Jennifer

Safstrom, Thirteenth Amendment Litigation in the Immigration Context,

26 MICH. J. RACE & L. 205, 220–26 (2020) (analyzing lawsuits

brought by detained immigrants alleging violations of the TVPA

forced labor provision).

The evidence of federal control perhaps is most apparent

when we acknowledge that immigration remains uniquely and ex-

clusively within the federal government’s domain, see Hines v. Da-

vidowitz, 312 U.S. 52, 66–67 (1941), hence the need for the 287(g)

agreements. The Executive Branch also is responsible for protect-

ing the federal rights and safety of the growing thousands of indi-

viduals forcibly detained as a result of the partnership. For exam-

ple, immigrants detained at the facility have Fifth Amendment

rights to be free from unlawful conditions of confinement and

these claims would be appropriately directed at the federal govern-

ment, not the state. Alexis v. U.S. Att’y Gen., 431 F.3d 1291, 1295 n.3

(11th Cir. 2005) (acknowledging that even “excludable aliens” are

“entitled under the due process clause to be free of ‘gross physical

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25-12873 ABUDU, J., Dissenting 13

abuse’ at the hands of state or federal officers” (citing Lynch v. Can-

natella, 810 F.2d 1363, 1374 (5th Cir. 1987))); cf. Weiland v. Palm

Beach Cnty. Sheriff’s Office, 792 F.3d 1313, 1328 (11th Cir. 2015) (ex-

plaining that Fifth Amendment ”protects a citizen’s rights against

infringement by the federal government, not by the state govern-

ment”); see also Plyler v. Doe, 457 U.S. 202, 210 (1982) (“Aliens, even

aliens whose presence in this country is unlawful, have long been

recognized as ‘persons’ guaranteed due process of law by the Fifth

and Fourteenth Amendments.”).

While the federal government is authorized “to enter into a

cooperative agreement. . . for the necessary construction . . . re-

quired to establish acceptable conditions of confinement and de-

tention services in any State or unit of local government which

agrees to provide guaranteed bed space for persons detained by the

Service,” 8 U.S.C. § 1103(a)(11)(B), the federal government may

not discharge its responsibility to protect the constitutional rights

of detained immigrants to the states. Cf. Haaland v. Brackeen,

599 U.S. 255, 291 (2023) (reinforcing that Congress may impose an-

cillary requirements on states without violating the Tenth Amend-

ment because “[s]uch requirements do not offload the Federal Gov-

ernment’s responsibilities onto the States . . . .” (quoting Murphy v.

NCAA, 584 U.S. 453, 474 (2018))). See also United States v. Feng Tao,

107 F.4th 1179, 1198 (10th Cir. 2024) (Briscoe, J., dissenting) (“Even

if a federal agency delegates primary authority to a state agency to

discharge some of its duties, a ‘grant of primary authority is not a

grant of exclusive authority’ . . . [and] the federal government re-

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14 ABUDU, J., Dissenting 25-12873

tains jurisdiction . . . to enforce its regulations and ensure that ‘fed-

eral funds are properly spent.’” (quoting United States v. Wright, 988

F.2d 1036, 1038–39 (10th Cir. 1993))). Nor do DHS and ICE share

that responsibility with the state of Florida in this instance. That is

because, factually, the 287(g) agreements expressly provide that the

state officials responsible for the day-to-day operations of the facil-

ity are to be “considered acting under color of federal authority for

purposes of determining liability and immunity from suit under

federal or state law.” Friends of the Everglades, Inc. v. Noem, 796 F.

Supp.3d 1234, 1251 (S.D. Fla. 2025) (emphasis added) (quoting

287(g) agreement).

It is not dispositive that these officials are state officials by

name. What matters is that these officials are “given powers (or

perform functions) that are ‘traditionally the exclusive prerogative’”

of the federal government. Harvey v. Harvey, 949 F.2d 1127, 1131

(11th Cir. 1992) (emphasis in original) (quoting Jackson v. Metro. Ed-

ison Co., 419 U.S. 345, 353 (1974)). When state officials exercise fed-

eral power, under a federal statute, at the behest of federal officials,

to perform a uniquely federal function, the state/federal project

easily involves “substantial” federal control. 2

2 Perhaps a counterexample shows why the majority’s contrary decision

makes no sense. When an Article III federal court solicits the help of a non-

Article III decisionmaker to determine the rights and obligations of litigants,

and then that non-Article III decisionmaker renders a decision—under the su-

pervision of the Article III court that is constitutionally entrusted with the de-

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25-12873 ABUDU, J., Dissenting 15

More terrifying, especially given the documented instances

of abuse in immigration facilities, see, e.g., Gayle v. Meade, 614

F.Supp. 3d 1175, 1203–05 (S.D. Fla. 2020) (granting preliminary in-

junction, in part, after determining that immigration detainees held

by ICE were likely to succeed on merits of Fifth Amendment claims

for violations of detention standards and right to reasonable safety),

is the majority’s open-door invitation to eliminate the federal gov-

ernment’s duty to immigrants in its care wherever they are housed.

That cannot stand. Yet, that is the exact outcome the majority’s

decision promotes. The opinion, even if unintentionally, further

encourages the federal government to abandon its constitutional

and statutory responsibilities for the care and safety of the human

beings detained at this facility simply because Florida supported

these efforts and may one day choose to no longer do so. The ma-

jority acknowledges that the Secretary of Homeland Security dele-

gated immigration enforcement authority to the state through Sec-

cision-making authority—and that decision has real-world effects on the fed-

eral rights of litigants, it would be almost ridiculous to say that the decisions

were not made under substantial Article III control. See Fowler v. Jones, 899

F.2d 1088, 1093 (11th Cir. 1990). Indeed, this is essentially the structure which

allows Federal magistrate judges to act consistent with “the constitutional re-

quirement that the judicial power of the United States must be vested in Arti-

cle III courts.” Id.; see also 28 U.S.C. § 636. The same rationale clearly applies

when the federal government, vested with the obligation to enforce immigra-

tion laws, solicits Florida’s assistance in requisitioning and maintaining a fed-

eral detention center, and that center is, in fact, built and used to house federal

detainees, the project is one under substantial federal control.

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16 ABUDU, J., Dissenting 25-12873

tion 287(g) agreements. However, by denying the existence of fed-

eral control, the majority opinion implies that these contractual

agreements, which states are free to terminate, can be used to com-

pletely offload the federal government’s immigration authority to

states. That position contradicts the very purpose of these agree-

ments, which are limited to permitting state and local authorities

to perform immigration functions “subject to the direction and su-

pervision of the Attorney General.” 8 U.S.C.§ 1357(g)(3).

Federal immigration authorities “do[] not vest power over

detained [non-citizens] in the wardens of detention facilities”

simply by relying “on state and local governments to house federal

[immigrant] detainees.” Roman v. Ashcroft, 340 F.3d 314, 320 (6th

Cir. 2003). To the extent state and local governments exercise any

“daily control . . . over federal [immigrant] detainees, they have

that control solely pursuant to the direction of” immigration au-

thorities. Id. Permitting DHS and ICE to abdicate their responsi-

bility will have dangerous, and sometimes deadly, consequences

for detainees who are being abused by officers who, with no state

authority or federal supervision, engage in rogue behavior. The

majority’s opinion also raises concerns about the federal govern-

ment’s commitment to upholding its obligations under interna-

tional law. See, e.g., Ali v. Ashcroft, 394 F.3d 780, 790 (9th Cir. 2005)

(“The international obligation our nation agreed to share when we

enacted the Refugee Convention into law knows no such limits.”

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25-12873 ABUDU, J., Dissenting 17

(citing Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (1980)

(the “Refugee Act”)).3

Furthermore, the ability of the state to one day opt-out does

not change the fact that so long as it remains a willing participant

in the immigration detention scheme, it must submit to the federal

government’s exclusive control over the detention of migrants, as

it may only perform delegated immigration functions under “the

direction and supervision of the Attorney General.”

8 U.S.C. § 1357(g)(3); see also Arizona, 567 U.S. at 413 (“[I]t would

disrupt the federal framework to put state officers in the position

of holding [undocumented individuals] in custody for possible un-

lawful presence without federal direction and supervision.”). To

the extent that the state of Florida presently is operating in the im-

migration space, it must do so in a way that respects the federal

government’s authority. See Doe v. Rose, 499 F.2d 1112, 1116 (10th

3 See also Zadvydas v. Davis, 533 U.S. 678, 721 (2001) (Kennedy, J., dissenting)

(“Still, both removable and inadmissible aliens are entitled to be free from de-

tention that is arbitrary or capricious. Where detention is incident to removal,

the detention cannot be justified as punishment nor can the confinement or

its conditions be designed in order to punish. This accords with international

views on detention of refugees and asylum seekers.” (first citing Wong Wing

v. United States, 163 U.S. 228 (1896); then citing Report of the United Nations

Working Group on Arbitrary Detention, U.N. Doc. E/CN.4/2000/4 (Dec. 28,

1999) [https://perma.cc/RA44-LMJP]; and then citing United Nations High

Commissioner for Refugees, Guidelines on Applicable Criteria and Standards

Relating to the Detention of Asylum–Seekers (Feb. 10, 1999)

[https://perma.cc/DYB7-K5RT])).

USCA11 Case: 25-12873 Document: 139-1 Date Filed: 04/21/2026 Page: 37 of 38

18 ABUDU, J., Dissenting 25-12873

Cir. 1974) (“[O]nce a state elects to participate in a federal . . . pro-

gram, it must follow federal statutes and regulations and must also

administer the program in a constitutional manner.”). The state is

“precluded from regulating conduct” in this field, as “Congress, act-

ing within its proper authority, has determined [it] must be regu-

lated by its exclusive governance.” Arizona, 567 U.S. at 399; cf. Ken-

tuckians for the Commonwealth, 746 F.3d at 701 (finding that Army

Corps of Engineers did not violate NEPA by limiting scope of en-

vironmental analysis where statute granted state exclusive jurisdic-

tion over regulation of mining in the state, under certain conditions

and subject to minimum federal standards). So long as Florida re-

mains a willing participant in the federal government’s immigra-

tion detention scheme, it subjects itself to the federal government’s

substantial control over the parties’ joint efforts, which is the nec-

essary trigger for NEPA’s application in this case.

In sum, the majority, under the guise of de novo review, dis-

regards the district court’s well-supported factual findings in favor

of its own, thereby blurring in more than just an idiosyncratic way,

the important distinction between legal conclusions and factual

findings. In doing so, the majority has rendered the people actually

detained in the facility and Florida’s cherished environment pro-

tected by no one, and vulnerable to the whims of anyone. The

extensive record in this case and a proper application of the law

support the district court’s conclusion that irreparable injury to the

environment and the humans (detained and free persons) impacted

by the facility will likely occur in the absence of an injunction.

USCA11 Case: 25-12873 Document: 139-1 Date Filed: 04/21/2026 Page: 38 of 38

25-12873 ABUDU, J., Dissenting 19

Therefore, the majority’s decision to vacate the district court’s or-

der is just plain wrong.

I dissent.