Amicus Curiae Brief — Joseph R. Biden, Jr., President of the United States, et al., Petitioners v. Sierra Club, et al.
Supreme Court briefJan 19, 2021
Ask Donna
What actually matters in this document.
Text
No. 20-138
================================================================================================================
In The
Supreme Court of the United States
---------------------------------♦--------------------------------DONALD J. TRUMP,
PRESIDENT OF THE UNITED STATES, et al.,
Petitioners,
v.
SIERRA CLUB, et al.,
Respondents.
---------------------------------♦--------------------------------On Writ Of Certiorari To The
United States Court Of Appeals
For The Ninth Circuit
---------------------------------♦--------------------------------BRIEF OF DEFENDERS OF WILDLIFE, CENTER
FOR BIOLOGICAL DIVERSITY, ANIMAL LEGAL
DEFENSE FUND, CALIFORNIA WILDERNESS
COALITION, RIO GRANDE INTERNATIONAL
STUDY CENTER, THE CARRIZO/COMECRUDO
NATION OF TEXAS, MR. JOSEPH HEIN, MS. ELSA
HULL, AND DR. RAMIRO RAMIREZ AS AMICI
CURIAE IN SUPPORT OF RESPONDENTS
---------------------------------♦--------------------------------DANNY THIEMANN
SARAH BURT
EARTHJUSTICE
50 California Street,
Suite 500
San Francisco, CA 94111
(415) 217-2013
dthiemann@earthjustice.org
sburt@earthjustice.org
JASON C. RYLANDER
Counsel of Record
DEFENDERS OF WILDLIFE
1130 17th Street NW
Washington, D.C. 20036
(202) 682-9400
jrylander@defenders.org
ERIC R. GLITZENSTEIN
BRIAN SEGEE
CENTER FOR
BIOLOGICAL DIVERSITY
1411 K Street, NW, Suite 1300
Washington, D.C. 20005
(202) 849-8401
eglitzenstein@
biologicaldiversity.org
bsegee@biologicaldiversity.org
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ...................................
ii
INTERESTS OF THE AMICI CURIAE ................
1
SUMMARY OF THE ARGUMENT .......................
5
ARGUMENT ...........................................................
7
I.
THE TRUMP ADMINISTRATION’S HEEDLESS RUSH TO CONSTRUCT THE BORDER WALL IS CAUSING IRREPARABLE
INJURY TO ENVIRONMENTAL, TRIBAL,
CULTURAL, AND PROPERTY INTERESTS ............................................................
7
A. Damage to Environmental Interests ....
9
1. Impacts to Wildlife ...........................
9
2. Impacts to Waters.............................
15
3. Impacts to Ancient Cacti and Vegetation ................................................. 18
B. Damage to Tribal and Cultural Interests ......................................................... 20
C. Damage to Private Property Interests ....
23
II. THE GOVERNMENT’S ZONE OF INTERESTS ARGUMENT CONTRAVENES THIS
COURT’S PRECEDENTS AND IGNORES
CONGRESSIONAL INTENT ...................... 27
CONCLUSION .......................................................
34
APPENDIX
Photographs of Organ Pipe Cactus National
Monument ........................................................ App. 1
ii
TABLE OF AUTHORITIES
Page
CASES
Ass’n of Data Processing Serv. Orgs., Inc. v. Camp,
397 U.S. 150 (1970) .................................................29
Clarke v. Sec. Indus. Ass’n,
479 U.S. 388 (1987) ................................. 7, 29, 30, 32
Ctr. for Biological Diversity v. Trump,
453 F. Supp. 3d 11 (D.D.C. 2020) .................... passim
Indian River Cty. v. U.S. Dep’t of Transp.,
945 F.3d 515 (D.C. Cir. 2019) ..................................30
Lexmark Int’l, Inc. v. Static
Control Components, Inc.,
572 U.S. 118 (2014) ..................................... 29, 32, 33
Match-E-Be-Nash-She-Wish Band
of Pottawatomi Indians v. Patchak,
567 U.S. 209 (2012) ....................................... 6, 29, 31
STATUTES
Administrative Procedure Act,
5 U.S.C. §§ 701 et seq. ................................................6
5 U.S.C. § 702...........................................................29
10 U.S.C. § 2808 .................................................... 18, 26
16 U.S.C. §§ 1533-1544 ...............................................10
31 U.S.C. § 9705 ..........................................................24
iii
TABLE OF AUTHORITIES – Continued
Page
Consolidated Appropriations Act, 2019, Pub. L.
No. 116-6, 133 Stat. 13 (2019) ........... 7, 29, 30, 31, 33
Div. A, Tit. II, § 230(a)(1) .........................................31
Div. A, Tit. II, § 230(b) .............................................31
Div. A, Tit. II, § 231....................................................7
Div. A, Tit. II, § 231(1)-(5) ........................................32
Department of Defense Appropriations Act,
2019, Pub. L. No. 115-245, 132 Stat. 2982
(2018) ................................................................. 12, 28
Div. A, Tit. VIII, § 8005 .......................... 28, 30, 31, 33
REAL ID Act of 2005, Pub. L. No. 109-13, 119
Stat. 302 (2005) .........................................................8
Div. B, Title I § 102 ....................................................8
OTHER AUTHORITIES
Eliza Barclay & Sarah Frostenson, The Ecological Disaster That Is Trump’s Border Wall: A
Visual Guide, Vox (Feb. 5, 2019, 11:22 AM),
https://bit.ly/3oyXot7 ...............................................15
David J. Bier, A Wall Is an Impractical, Expensive, and Ineffective Border Plan, Cato Inst.:
Cato at Liberty (Nov. 28, 2016, 2:31 PM),
https://bit.ly/3q5dN8O ..............................................9
John Burnett, Contractors Dynamite Mountains,
Bulldoze Desert in Race to Build Trump’s Border Wall, Nat’l Pub. Radio (Dec. 11, 2020, 5:00
AM), https://n.pr/3s6wPh5 ......................................15
iv
TABLE OF AUTHORITIES – Continued
Page
Rafael Carranza, Sacred Native American Site
in Arizona Blasted for Border Wall Construction, USA Today, Feb. 7, 2020, https://bit.ly/
3biuBVV ..................................................................21
Josh Dawsey & Nick Miroff, Biden Order to Halt
Border Wall Project Would Save U.S. $2.6 Billion, Pentagon Estimates Show, Wash. Post,
Dec. 16, 2020, https://wapo.st/35DpFHk ................27
Defenders of Wildlife, In the Shadow of the Wall:
Borderlands Wildlife, Habitat and Collaborative Conservation at Risk (2018), https://bit.ly/
2LCk7FP ..................................................... 11, 13, 20
Editorial Board, Trump’s Border Wall Was a
Complete Waste of Time and Money, Wash.
Post, Dec. 25, 2020, https://wapo.st/35oaTEo ...........5
Juliet Eilperin & Nick Miroff, Border Fence Construction Could Destroy Archaeological Sites,
National Park Service Finds, Wash. Post,
Sept. 17, 2019, https://wapo.st/39eD5dr .................21
Paulina Firozi, Sacred Native American Burial
Sites Are Being Blown Up for Trump’s Border
Wall, Lawmaker Says, Wash. Post, Feb. 9,
2020, https://wapo.st/30y6efV .................................21
First Am. Compl., Rio Grande Int’l Study Ctr. v.
Trump, 453 F. Supp. 3d 11 (D.D.C. 2020) (No.
1:19-cv-00720), ECF No. 33 .............................. 22, 24
v
TABLE OF AUTHORITIES – Continued
Page
Rachel Frazin, Government Scientists Predicted
Border Wall Construction Could Harm Wildlife Refuge, The Hill, Dec. 18, 2020, https://
bit.ly/3biWVY5 ........................................................16
Noah Greenwald et al., Ctr. for Biological Diversity, A Wall in the Wild, The Disastrous Impacts of Trump’s Border Wall on Wildlife
(2017), https://bit.ly/398eeZ6 ..................................14
Molly Hennessy-Fiske, It’s Illegal to Destroy Saguaro Cactuses. So Why Are They Being Removed for Trump’s Border Wall?, L.A. Times,
Feb. 26, 2020, https://lat.ms/35nM8Z2 ...................19
Laiken Jordahl (@LaikenJordahl), Twitter (Nov.
30, 2020, 1:02 PM), https://bit.ly/3qiTTHG ............13
Laiken Jordahl (@LaikenJordahl), Twitter (Dec.
16, 2020, 11:03 PM), https://bit.ly/39ufLJu ............13
Laws Waived for Border Construction, Nat’l
Parks Conservation Ass’n (May 30, 2019),
https://bit.ly/2XrMHwm ............................................8
Travis Longcore & Catherine Rich, 2 Ecological
Light Pollution, Frontiers in Ecology & the
Env’t 191 (2004), https://bit.ly/3oJfFE0 .................15
Russ McSpadden (@PeccaryNotPig), Twitter (Nov.
12, 2020, 12:12 PM), https://bit.ly/2XGKIEIT ........13
T. Christian Miller et al., The Taking: How the
Federal Government Abused Its Power to Seize
Property for a Border Fence, Texas Tribune,
Dec. 14, 2017, https://bit.ly/3bmdjXP .....................24
vi
TABLE OF AUTHORITIES – Continued
Page
Camilo Montoya-Galvez, New Report Details
Trump Effort to Seize Thousands of Acres of
Private Land for Border Wall, CBS News, Nov.
24, 2020, https://cbsn.ws/3saDRRI ...........................9
Nat’l Park Serv., Archaeological Survey of 18.2
Kilometers (11.3 Miles) of the U.S. Mexico International Border (July 2019), https://bit.ly/
3s83PFx ...................................................................20
Notice Regarding Use of the Treasury Forfeiture
Fund, Rio Grande Int’l Study Ctr. v. Trump,
453 F. Supp. 3d 11 (D.D.C. 2020) (No. 1:19-cv00720), ECF No. 68 .................................................25
Robert Peters et al., Nature Divided, Scientists
United: US-Mexico Border Wall Threatens Biodiversity and Binational Conservation, 68
BioScience 740 (2018) ................................... 9, 10, 14
Pls.’ Sur-reply Addressing Remedy, Rio Grande
Int’l Study Ctr. v. Trump, 453 F. Supp. 3d 11
(D.D.C. 2020) (No. 1:19-cv-00720), ECF No.
100 ............................................................... 12, 22, 25
Pls.’ Mem. Supp. Mot. Summ. J., 38, Rio Grande
Int’l Study Ctr. v. Trump, 453 F. Supp. 3d 11
(D.D.C. 2020) (No. 1:19-cv-00720), ECF No.
84 ........................................................... 12, 18, 23, 26
Curt Prendergast, Border Wall Created ‘Dire Emergency’ at Arizona Wildlife Refuge, Ariz. Daily
Star, Aug. 21, 2020, https://bit.ly/35nE2zC ...............16
vii
TABLE OF AUTHORITIES – Continued
Page
Simon Romero, Tribal Nation Condemns ‘Desecration’ to Build Border Wall, N.Y. Times, Feb.
26, 2020, https://nyti.ms/32zcqHb .................... 19, 21
Lucy Sherriff, How the Trump Border Wall
Sapped a Desert Oasis Dry: Ancient Springs
Might Not Survive Unchecked Construction
During the Pandemic, Popular Sci., Jan. 6,
2021, https://bit.ly/3ou3N8U....................... 15, 16, 17
Ilya Somin, How Biden Can Terminate Trump’s
Border Wall Project – And Save Money and
Protect Property Rights in the Process, Reason,
The Volokh Conspiracy (Dec. 28, 2020, 2:35
PM), https://bit.ly/38sA8av .......................................8
Anita Snow, Damage From Border Wall: Blownup Mountains, Toppled Cactus, AP News, Dec.
17, 2020, https://bit.ly/2LP6S4M ............................12
Eliot Spagat, Homeland Security Waives Contracting Laws for Border Wall, AP News, Feb.
18, 2020, https://bit.ly/39jlp0I ...................................8
U.S. Fish & Wildlife Serv., Conservation Recommendations for the Proposed Border Infrastructure Projects in Pima and Cochise Counties,
Arizona (2019), https://bit.ly/3bnRTJO ............ 11, 17
U.S. Gov’t Accountability Off., GAO-21-114, Southwest Border, Information on Federal Agencies’
Process for Acquiring Private Land for Barriers Report to Congressional Requesters (Nov.
2020), https://bit.ly/3np6KWW ...............................23
1
INTERESTS OF THE AMICI CURIAE1
Amici’s interests are as varied as the terrain and
geographic scope that the Trump administration’s proposed border wall would traverse. Amici include environmental conservation groups that are working to
protect the natural and ecological values of the borderlands as well as the Corrizo/Comecrudo Nation of
Texas, an indigenous association of people who have
inhabited the borderlands for generations. Also joining
this brief are three individual Americans whose private property along the border is threatened with condemnation. Amici will be irrevocably harmed by the
Trump administration’s heedless rush to construct an
illegal border wall in some of North America’s most
unique and biodiverse landscapes.
Amici’s injuries parallel those of Respondents.
Some Amici are impacted by the exact funding transfer
complained of by the Sierra Club and State Respondents. Others are affected by similarly unlawful transfers that are being challenged in other cases still
pending in federal courts. But the principle is the
same. Environmental, cultural, tribal, and historical
interests are being obliterated to construct a massive
multibillion-dollar political gesture in direct contravention of Congress’ intent to limit construction
1
No counsel for a party authored this brief in whole or in
part, and no person other than Amici, their members, or their
counsel made a monetary contribution to its preparation or submission. All parties have consented to the filing of this brief.
2
spending in these areas. Those being harmed deserve
to have their claims resolved on the merits.
Defenders of Wildlife (“Defenders”) is a nonprofit
conservation organization with a longstanding interest in protecting wildlife, particularly endangered
and threatened species, from habitat destruction and
degradation. On behalf of 1.4 million members and
supporters nationwide and in the vicinity of the U.S.Mexico border, Defenders seeks to ensure that native
species and the ecosystems on which they depend are
preserved and maintained for present and future generations. Defenders has been closely involved in policy
and litigation matters associated with border wall construction along the U.S.-Mexico border for more than a
decade.
The Center for Biological Diversity (“Center”) is a
nonprofit organization dedicated to the protection of
endangered species and their habitats through science,
policy, and environmental law. The Center is incorporated in California and headquartered in Tucson, Arizona, with field offices throughout the United States
and Mexico. The Center has more than 1.6 million
members and supporters who have interests in conserving endangered and threatened species, and in
protecting U.S. federal lands. The Center’s interests in
protecting endangered and threatened species and
unique natural habitats and landscapes has been, and
will continue to be, gravely injured by past and ongoing
border wall construction.
3
Animal Legal Defense Fund represents its members’ interests by working to protect the lives of animals, including wildlife, through the legal system. This
includes prior litigation challenging unlawful attempts
to waive environmental and animal protection laws to
facilitate border construction.
California Wilderness Coalition (“CalWild”) is a
nonprofit organization that works to protect and restore California’s wildest natural landscapes and watersheds on federal public lands. Construction of the
border wall near the Jacumba Wilderness and near
the Otay Mountains near San Diego conflicts with CalWild’s mission and threatens the wild landscapes that
it fights to protect.
The Rio Grande International Study Center
(“RGISC,” pronounced “risk”) is a public interest nonprofit advocacy organization in Laredo, Texas. RGISC’s
mission is “to preserve and protect the Rio Grande-Rio
Bravo, its watershed and environment, through awareness, advocacy, research, education, stewardship and
bi-national collaboration for the benefit of present and
future generations.” The Rio Grande is particularly important to RGISC and the surrounding communities
because it is the area’s only source of drinking water.
Construction of a 52-mile border wall project known as
Laredo Project 7 northwest of Laredo, Texas conflicts
with RGISC’s mission, frustrates its programs, impacts its daily operations, threatens endangered animals that are key to its programs, and diminishes its
members’ connection to the Rio Grande.
4
The Carrizo/Comecrudo Nation of Texas (Esto’k
Gna Nation) is a voluntary association comprised of indigenous peoples whose ancestors have inhabited the
Rio Grande (Amahatau Mete’l) delta for generations.
The Nation seeks to preserve its culture and identity
by maintaining the connection with its ancestors and
protecting sacred sites in their historical territory.
These environmental, cultural, religious, and historical interests are threatened by 110 miles of border barriers in the Rio Grande Valley and by the 52-mile
Laredo Project 7 northwest of Laredo, Texas.
Also joining the brief are three individual property
owners who are injured as a result of illegal border
wall construction funded in part by similarly unlawful
transfers of appropriated funds. Dr. Ramiro Ramirez
holds the deed to the historic Jackson Ranch Church
and Cemetery and has ancestors buried in the adjacent
Eli Jackson Cemetery located in Hidalgo County, Texas
in the Rio Grande Valley. Mr. Joseph Hein is a rancher
along the Rio Grande downriver from Laredo, Texas
whose ranch is threatened by Laredo Project 7. Lastly,
Ms. Elsa Hull is a homeowner near the banks of the
Rio Grande downriver from Laredo, Texas whose land,
home, and interests in wildlife are threatened by Laredo Project 7.
Amici call the Court’s attention to the extraordinary and irreversible damage being done to environmental, tribal, cultural, and property interests along
the southern border of the United States. In derogation
of Amici’s interests, construction of the border wall is
destroying ancient landscapes and cultural traditions,
5
imperiling wildlife and habitat connectivity, and stripping property rights from thousands of Americans. See
Editorial Board, Trump’s Border Wall Was a Complete
Waste of Time and Money, Wash. Post, Dec. 25, 2020,
https://wapo.st/35oaTEo. These interests must be taken
into consideration in this challenge to the legality of
the Trump administration’s unilateral transfer of Department of Defense funds to accelerate building the
border wall.
---------------------------------♦---------------------------------
SUMMARY OF THE ARGUMENT
1. It is difficult to overstate the ecological, cultural, historical, and property rights damage being inflicted by the unlawfully funded activities at issue in
this litigation. The U.S.-Mexico border is one of the
most ecologically diverse regions in North America,
comprising six distinct ecoregions and more than 1,500
animal and plant species. Construction of the wall
threatens wildlife species by eliminating, degrading,
and fragmenting habitats. It is uprooting 200-year-old
cacti while draining, deteriorating, or blocking access
to scarce water resources that sustain the region’s
abundant life. For indigenous people, like the Carrizo/
Comecrudo Nation of Texas, the border wall is running
roughshod over indigenous lands and places of archeological significance, destroying sacred sites and burial
grounds, and dividing communities from one another
across the border. For other families in the border region,
lands that have been worked or enjoyed for generations are being condemned or permanently damaged.
6
Not just the wall itself, but roads, lighting, and other
infrastructure attendant to it are threatening family
burial grounds, historic churches, and entire ways of
life. Despite express Congressional limitations on appropriations, and despite these interests falling within
the range of interests protected by appropriations statutes limiting border barrier construction, the government has unlawfully ignored these and other concerns
to complete portions of the border wall before the end
of the Trump administration.
2. Respondents’ injuries stem directly from the
Trump administration’s unprecedented and impermissible redirection of Department of Defense funds for an
unappropriated purpose: expediting the construction
of the border wall while President Trump remained in
office. The government does not dispute that Respondents have Article III standing. Rather, the government
argues that Respondents’ injuries, though grievous,
do not fall within the relevant “zone of interests” for
statutes governing federal spending. This argument
should be rejected. Sierra Club Respondents have argued their claims are constitutional or ultra vires and
need not meet the “zone of interests” test. But even if
the claims are framed, as the State Respondents do, as
challenges to federal actions “not in accordance with
law” under the Administrative Procedure Act, 5 U.S.C.
§§ 701 et seq., the asserted interests must only fall “arguably within the zone of interests to be protected or
regulated” by the statutory scheme the plaintiff claims
was violated. Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 224 (2012)
7
(citation omitted). In considering the zone of interests,
a court must not focus too narrowly on a particular provision of law, but instead must “adequately place” the
provision within the “overall context” of the relevant
statute. Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 401
(1987). Congressional appropriations for the border
wall include strict limitations on funding and a stated
desire to protect critical natural, cultural, and historical interests. 2019 Consolidated Appropriations Act,
Pub. L. No. 116-6, § 231, 133 Stat. 13, 28 (2019)
(“CAA”). Respondents need show nothing more to
satisfy this Court’s zone of interests precedents. The
Trump administration’s improper transfer of funds
that Congress specifically did not appropriate for border construction is the cause of these injuries and this
litigation is a proper vehicle to remedy those injuries.
---------------------------------♦---------------------------------
ARGUMENT
I.
THE TRUMP ADMINISTRATION’S HEEDLESS RUSH TO CONSTRUCT THE BORDER WALL IS CAUSING IRREPARABLE
INJURY TO ENVIRONMENTAL, TRIBAL,
CULTURAL, AND PROPERTY INTERESTS
The Trump administration’s rush to construct a
bollard wall as high as 30-feet across the southern border is having enormous consequences for wildlife, the
environment, and people. While prior administrations
balanced border security and environmental considerations in areas of strategic importance through reliance on “vehicle barriers” designed to block vehicles
8
but not wildlife, the Trump administration is building
a wall that is impermeable to wildlife and extending it
to pristine areas where no barriers previously existed.
Compounding the issue, the administration has also
waived all applicable federal and state environmental
and historic preservation laws that could help minimize harm to wildlife, natural resources, and areas
of cultural and archaeological importance.2 The damage, which is occurring in national wildlife refuges,
national monuments, and internationally-recognized
places of ecological and historical significance, including tribal lands, may be irreparable.
Additionally, construction of an enormous wall
across the southern border requires an unprecedented
incursion on private property, described by Professor
Ilya Somin as “one of the biggest federal-government
land grabs in modern history.” Ilya Somin, How Biden
Can Terminate Trump’s Border Wall Project—And
Save Money and Protect Property Rights in the Process,
2
Federal statutes waived pursuant to the REAL ID Act of
2005, Pub. L. No. 109-13, Div. B, Title I § 102, Stat. 302 (2005)
include the Native American Graves Protection and Repatriation
Act, the Endangered Species Act, the National Environmental
Policy Act, the Clean Water Act, the Archeological Resources Protection Act, the Antiquities Act, the National Wildlife Refuge System Act and many others. Laws Waived for Border Construction,
Nat’l Parks Conservation Ass’n (May 30, 2019), https://bit.ly/
2XrMHwm. The Department of Homeland Security has even
waived federal contracting laws. See Eliot Spagat, Homeland Security Waives Contracting Laws for Border Wall, AP News, Feb.
18, 2020, https://bit.ly/39jlp0I. These waivers ensure no meaningful check on environmental damage, even when such damage is
wholly avoidable.
9
Reason, The Volokh Conspiracy (Dec. 28, 2020, 2:35
PM), https://bit.ly/38sA8av. Ranches and properties
that have been in families for generations are already
being taken outright and their access and use is being
restricted. To fully construct the border wall, the government would need to seize an additional 5,000 acres
of private property beyond what has already been condemned (often without adequate process or compensation). See Camilo Montoya-Galvez, New Report Details
Trump Effort to Seize Thousands of Acres of Private
Land for Border Wall, CBS News, Nov. 24, 2020, https://
cbsn.ws/3saDRRI. All this for a project that may never
be completed and is ineffectual for its purpose. See David J. Bier, A Wall Is an Impractical, Expensive, and
Ineffective Border Plan, Cato Inst.: Cato at Liberty
(Nov. 28, 2016, 2:31 PM), https://bit.ly/3q5dN8O.
A. Damage to Environmental Interests
1. Impacts to Wildlife
Ongoing and proposed border wall construction
threatens some of the most biodiverse regions in North
America. The U.S.-Mexico borderlands contain six different ecoregions, including desert scrub temperate
forests and woodlands, semidesert and plains grasslands, subtropical scrublands, freshwater wetlands,
and salt marshes. This unusual mix of Nearctic and
Neotropical habitats supports an extraordinary amount
of the continent’s wildlife and plants. Robert Peters
et al., Nature Divided, Scientists United: US-Mexico
10
Border Wall Threatens Biodiversity and Binational
Conservation, 68 BioScience 740, 740 (2018).
A recent analysis endorsed by more than 2,700 scientists showed that the U.S.-Mexico border bisects the
habitat of 1,506 native terrestrial animal and plant
species, of which 62 are listed as critically endangered,
endangered, or vulnerable on the International Union
for Conservation of Nature (IUCN) Red List. Id. Once
the border wall is completed, nearly 350 of these species could be permanently disconnected from more
than 50% of their natural range below the border. Id.
at 741. Division of these populations ends hopes of natural recovery via dispersal from Mexico into the
United States and increases the chance of local extirpation and even extinction.
Critically endangered species like the jaguar,
Mexican wolf, and ocelot could easily be eliminated
from the United States if they cannot connect to
broader populations south of the border. Id. Jaguar
were hunted to near extinction by the 1960s, only to
reappear in the 1990s in the Sky Islands, an extraordinarily biodiverse chain of mountain ranges linking
southern Arizona and northern Mexico. Much of this
area is designated critical habitat under the Endangered Species Act, 16 U.S.C. §§ 1533–1544. But construction of the border wall is both destroying that
critical habitat and creating a permanent, impermeable barrier to jaguar recovery. According to the U.S.
Fish and Wildlife Service:
11
Maintaining connectivity between Arizona
and Sonora is critical to the continued persistence of jaguars in Arizona and New Mexico.
Should all jaguar movement corridors be compromised, it is possible that the jaguar will become extirpated from the US, as it is believed
the existence of jaguars in the US relies on interchange with jaguars in Sonora.
U.S. Fish & Wildlife Serv., Conservation Recommendations for the Proposed Border Infrastructure Projects
in Pima and Cochise Counties, Arizona, https://bit.ly/
3bnRTJO 16-17 (2019) [hereinafter “FWS, Cons. Recs.”].
In addition to blocking wildlife movement critical
for dispersal and genetic exchange, the wall increases
the likelihood of death from thirst, starvation or increased predation. Fluctuations in precipitation require wildlife to move in search of food and water. In
2002, drought nearly caused the extinction of the Sonoran Pronghorn; the species population dropped from
140 to 19. Defenders of Wildlife, In the Shadow of the
Wall: Borderlands Wildlife, Habitat and Collaborative
Conservation at Risk 5-6 (2018), https://bit.ly/2LCk7FP.
The wall could prevent these and other animals from
reaching sustenance. Many border species are also showing northerly shifts in range due to climate change. The
wall could block natural adaptation and migration
strategies for any species that cannot climb or fly over
it. Id. at 6.
In Arizona alone, the U.S. Fish and Wildlife Service has predicted significant adverse impacts on
many species, including at least 16 species listed as
12
threatened or endangered under the ESA. FWS, Cons.
Recs., supra. These risks are not hypothetical. In the
San Bernardino National Wildlife Refuge near Guadalupe Canyon, where some of the damage has already
occurred, field cameras have reported 90% less movement by mountain lions, bobcats, and javelinas in recent months. Anita Snow, Damage From Border Wall:
Blown-up Mountains, Toppled Cactus, AP News, Dec.
17, 2020, https://bit.ly/2LP6S4M.
Beyond the effects of the wall itself on wildlife
movement, the construction and maintenance of the
project is forever altering formerly pristine habitat.
Permanent Border Patrol outposts, road networks, and
significant off-road vehicle traffic—even in wildlife refuges and wilderness areas—is crushing plants and
animals and significantly fragmenting habitat. For example, border barriers, access roads, and increased patrol traffic on the ground and in the air in the El Centro
sector of California will impact Peninsular bighorn
sheep and, if prolonged, could cause bighorn sheep to
move away from the stimuli and even abandon their
home range.3 In steep inaccessible terrain, mountains
3
Pls.’ Sur-reply Addressing Remedy at 6, Rio Grande Int’l
Study Ctr. (“RGISC”) v. Trump, 453 F. Supp. 3d 11 (No. 1:19-cv00720), ECF No. 100 (addressing impacts from a border barrier
known as El Centro 1). In 2019, the Department of Defense unlawfully funded construction of El Centro 1 with transfers from a
Drug Interdiction and Counter-Drug Activities account pursuant
to 10 U.S.C. § 284 and § 8005 of the 2019 Department of Defense
Appropriations Act, Pub. L. No. 115-245, 132 Stat. 2981 (2018).
Pls.’ Mem. Supp. Mot. Summ. J. at 15-16, RGISC, 453 F. Supp.
3d 11 (No. 1:19-cv-00720), ECF No. 84.
13
are literally being blasted away to carve roads for vehicles to build the wall. In lower lying areas, walls can
also cause significant flooding (even in a desert). After
heavy rains in 2008 and 2011, flood waters in Arizona’s
Organ Pipe Cactus National Monument created a
channel against the border wall that trapped debris,
drowned wildlife, and uprooted a 40-foot section of the
wall itself. Defenders of Wildlife 2018, supra, at 6.
To appreciate the gravity of the situation, we urge
the Court to view these images of formerly pristine
jaguar habitat in the Peloncillo Mountains in Arizona
that have now been transformed into a moonscape.
One video shows a steep and inaccessible canyon being
blasted to facilitate wall building. Laiken Jordahl
(@LaikenJordahl), Twitter (Nov. 30, 2020, 1:02 PM),
https://bit.ly/3qiTTHG. Another video shows the aftermath of similar destruction, a mountainside reduced
to rubble. Laiken Jordahl (@LaikenJordahl), Twitter
(Dec. 16, 2020, 11:03 PM), https://bit.ly/39ufLJu. Dramatic images such as these are being captured across
the southern border. Indeed, drone footage of seven
ecologically important areas demonstrates the significant harm that has already occurred in the Buenos
Aries National Wildlife Refuge, along the San Pedro
River and San Pedro National Conservation Area, Quitobaquito Springs and Organ Pipe Cactus National
Monument, San Bernardino National Wildlife Refuge
and Guadalupe Canyon, Cabeza Prieta National Wildlife
Refuge, the Tinajas Altas Mountains, and the Coronado
National Memorial. Russ McSpadden (@PeccaryNotPig),
Twitter (Nov. 12, 2020, 12:12 PM), https://bit.ly/2XGKIEI.
14
The still image below shows the results of blasting in
the Tinajas Altas Mountains, which straddle the Cabeza Prieta National Wildlife Refuge and Barry Goldwater Range. The Tinajas Altas are rich in history and
artifacts and provide habitat for desert bighorn sheep.
Photo: Laiken Jordahl
Not even wildlife capable of flight is immune from
the wall’s impacts. The endangered Quino checkerspot
butterfly and the imperiled cactus-ferruginous pygmy
owl (a candidate for ESA listing) could also be casualties of the wall. The low flying creatures will be unable
to avoid it and will face risks from collision and lack of
connectivity to cross-border populations. Peters et al.,
supra, at 741; Noah Greenwald et al., Ctr. for Biological
Diversity, A Wall in the Wild, The Disastrous Impacts
of Trump’s Border Wall on Wildlife 16 (2017), https://
bit.ly/398eeZ6. Moreover, these and other species—
15
including many bats and pollinators—will be drawn to
the wall’s “high intensity security lights,” which will be
shining from atop the 30-foot structure at regular intervals for miles on end. John Burnett, Contractors Dynamite Mountains, Bulldoze Desert in Race to Build
Trump’s Border Wall, Nat’l Pub. Radio (Dec. 11, 2020,
5:00 AM), https://n.pr/3s6wPh5. Lights can attract and
mesmerize birds, bats, and insects causing mass mortality events. See Travis Longcore & Catherine Rich, 2
Ecological Light Pollution, Frontiers in Ecology & the
Env’t 191, 191-98 (May 1, 2004), https://bit.ly/3oJfFE0;
Eliza Barclay & Sarah Frostenson, The Ecological Disaster That Is Trump’s Border Wall: A Visual Guide, Vox
(Feb. 5, 2019, 11:22 AM), https://bit.ly/3oyXot7.
2. Impacts to Waters
Water resources are exceptionally scarce along
many parts of the borderlands, but the construction of
the border wall is posing a serious threat to ancient
aquifers, wells, and the Rio Grande that serves as the
sole source of water for some communities. Mixing the
raw materials for a 30-foot concrete and iron wall requires as much as 84,000 gallons of water a day, according to U.S. Customs and Border Protection’s own
estimates. Lucy Sherriff, How the Trump Border Wall
Sapped a Desert Oasis Dry: Ancient Springs Might Not
Survive Unchecked Construction During the Pandemic,
Popular Sci., Jan. 6, 2021, https://bit.ly/3ou3N8U. This
is an enormous amount to draw out of such an arid
landscape. The 450 miles of new and replacement border wall in portions of California, Arizona, New Mexico,
16
and Texas have required more than 971,000 tons of
concrete. See id. (“The demand for water, alongside historic droughts in the West, has had a colossal impact
on the surrounding ecology of largely public and tribal
lands across the Southwest, which scientists and Indigenous communities fear may take years, if not decades, to reverse.”).
Indeed, recent groundwater pumping associated
with unlawful border wall construction has already resulted in ongoing significant hydrologic impacts in the
San Bernardino National Wildlife Refuge in Arizona.
Curt Prendergast, Border Wall Created ‘Dire Emergency’ at Arizona Wildlife Refuge, Ariz. Daily Star, Aug.
21, 2020, https://bit.ly/35nE2zC. Government scientists estimate that wall construction will cause water
levels in wells on the refuge to draw down by as much
as 13.7 feet. Rachel Frazin, Government Scientists Predicted Border Wall Construction Could Harm Wildlife
Refuge, The Hill, Dec. 18, 2020, https://bit.ly/3biWVY5.
Their report, which notes that the wells “support several endangered [and threatened] species,” including
the Yaqui catfish, Yaqui chub, Yaqui topminnow, and
beautiful shiner, concludes that “any ongoing withdrawals will have large impacts on the system as a
whole.” Id. Underscoring the risk to the ecosystem, refuge manager Bill Radke in emails obtained by the
press said that the withdrawals are posing a “dire
emergency” and represent “the current greatest threat
to endangered species in the southwest region.” Id.
Near Quitobaquito Springs, located in Organ Pipe
Cactus National Monument in Arizona, which is
17
designated a UNESCO biosphere reserve because of its
special value as a world-class intact ecosystem, the
U.S. Customs and Border Protection has reportedly
diverted water from the same aquifer that feeds the
springs. Sherriff, supra. The water in these aquifers
was laid down thousands of years ago and is not easily
replenished, particularly under increasingly arid conditions. The pond at Quitobaquito once measured two
feet deep and covered half an acre, but in the summer
of 2020 it dropped 15 inches, and the spring’s flow reportedly reached a historic low of 5.5 gallons per minute this past July. Id. The drawdowns may spell the
death knell for the endangered Quitobaquito pupfish
and Sonoyta mud turtle. Id. These species reside nowhere else in the country.
These disturbing impacts resulted from U.S. Customs and Border Protection flagrantly ignoring the
conservation recommendations of the U.S. Fish and
Wildlife Service by allowing the pumping of thousands
of gallons of irreplaceable groundwater daily in areas
directly adjacent to occupied endangered species habitat. See FWS Cons. Recs., supra, at 2 (“Avoid impacts
to groundwater by obtaining treated water from outside the immediate area for construction use.”) (emphasis in original); id. at 8 (“To ensure water levels are
stable in Quitobaquito Spring, do not drill any water
wells within 5 miles to the west and 10 miles to the east
of Quitobaquito Spring.”) (emphasis in original); id. at
24 (“Avoid any impacts of water reduction, contamination, or sedimentation to the ponds on [San Bernardino
National Wildlife Refuge] or Black Draw, including
18
groundwater withdrawal.”). With no meaningful environmental or other laws in place to check or mitigate
these impacts—such safeguards have all been waived
by the Secretary of Homeland Security—these warnings from expert agencies can simply be ignored.
Unlawful barriers also impact water resources
that are vital for border communities. The Rio Grande
is the only source of water for the City of Laredo where
the Rio Grande International Study Center (“RGISC”)
works to protect water security and ecosystems. Construction of the border wall known as Laredo Project 7
impedes RGISC’s ability to fulfill its mission, which includes restoration of a large watershed that is important for water quality.4
3. Impacts to Ancient Cacti and Vegetation
Saguaro and organ pipe cacti are the redwoods of
the desert. Ancient and slow growing, these cacti can
take 100–150 years to reach maturity and can live
longer than 200 years. The tree-like saguaro can grow
to 60 feet, while the organ pipe forms tall spires that
resemble a pipe organ. Pollinated by bats, they produce
a sweet cactus fruit.
Removing a saguaro is a felony in Arizona, but to
facilitate construction of the wall, these cacti are being
4
Pls.’ Mem. Supp. Mot. Summ. J. at 23-26, RGISC, 453
F. Supp. 3d 11 (No. 1:19-cv-00720), ECF No. 84. The Secretary of
Defense authorized unlawful transfers of money from 10 U.S.C.
§ 2808 to fund Laredo Project 7. Id. at 17, 38.
19
chopped down, even in refuges and monuments set
aside specifically for their conservation. Molly HennessyFiske, It’s Illegal to Destroy Saguaro Cactuses. So Why
Are They Being Removed for Trump’s Border Wall?,
L.A. Times, Feb. 26, 2020, https://lat.ms/35nM8Z2. The
saguaro is also sacred to the Tohono O’odham Nation,
whose members have long harvested the cactus’s fruit.
While attempts have been made to transplant some saguaro, many others have been destroyed at Organ Pipe
Cactus National Monument and Cabeza Prieta National Wildlife Refuge. See Simon Romero, Tribal Nation Condemns ‘Desecration’ to Build Border Wall, N.Y.
Times, Feb. 26, 2020, https://nyti.ms/32zcqHb. (See also
Appendix).
Felled saguaro cactus at Organ Pipe Cactus
National Monument. Photo: Laiken Jordahl
20
Border wall construction is also threatening the
federally endangered Pima pineapple cactus and Otay
Mesa mint. Impacts to native vegetation from border
construction could also compromise the recovery plan
for the Quino checkerspot butterfly. Extensive off-road
vehicle traffic in the region “compacts soil, destroys
host plants, increases erosion and fire frequency, and
creates trails that are conduits for non-native plant invasion.” Defenders of Wildlife, In the Shadow of the
Wall, supra, at 6. Non-native plants and noxious weeds
like buffelgrass and Sahara mustard that degrade
western landscapes are easily transported by the tires
and undercarriages of vehicles. Id. Sahara mustard
spreads rapidly and has eliminated vast landscapes of
wildflowers that give the desert its color. Id.
B. Damage to Tribal and Cultural Interests
The areas being degraded for border wall construction are also a rich, living landscape of historical,
cultural, and tribal sites that are beloved, visited, and
studied by millions of people. A recent National Park
Service study found the Sonoran Desert has “an abundance [of ] natural and cultural resources unique” to
that area, some of which are still being evaluated for
inclusion in the National Register of Historic Places.
Nat’l Park Serv., Archaeological Survey of 18.2 Kilometers (11.3 Miles) of the U.S. Mexico International Border 1 (July 2019), https://bit.ly/3s83PFx.
According to the National Park Service, construction of the border wall in the Organ Pipe Cactus
21
National Monument alone could damage or destroy
up to 22 archaeological sites. Juliet Eilperin & Nick
Miroff, Border Fence Construction Could Destroy Archaeological Sites, National Park Service Finds, Wash.
Post, Sept. 17, 2019, https://wapo.st/39eD5dr. These
rare and fragile sites are currently well-preserved, but
once disturbed or destroyed could be lost forever.
As discussed in a separate amicus brief submitted
in this case by the Tohono O’odham Nation, construction of the border wall is having particularly egregious
impacts on native people and native cultural sites.
Construction in the Sonoran Desert is blasting away
ancient burial grounds and draining a critical desert
aquifer that has sustained life in the region for 16,000
years. Romero, supra. Sacred places like Monument
Hill, which includes a tribal burial site, are simply being blown up without so much as consultation with affected sovereign tribal nations. Paulina Firozi, Sacred
Native American Burial Sites Are Being Blown Up for
Trump’s Border Wall, Lawmaker Says, Wash. Post, Feb.
9, 2020, https://wapo.st/30y6efV; see also Rafael Carranza, Sacred Native American Site in Arizona Blasted
for Border Wall Construction, USA Today, Feb. 7, 2020,
https://bit.ly/3biuBVV.
To offer another example, Amicus Carrizo/Comecrudo Nation of Texas is a voluntary association of indigenous peoples whose ancestors have inhabited the
Rio Grande delta for generations and who have historical villages and sacred burial sites along the Rio
Grande from the village of Juliame (near present day
22
Marfa, Texas) to the mouth of the river at Boca Chica.5
Their national mission is to maintain their connection
to relatives and ancestors, some of whom are buried at
the Eli Jackson Cemetery and Jackson Ranch Cemetery in the Rio Grande Valley of Texas, located on the
grounds of one of the Nation’s ancestral villages.
Border wall construction along a large swath of
the Rio Grande threatens the Carrizo/Comecrudo Nation of Texas’s ability to protect its sacred burial sites,
maintain ancestral connection, and preserve cultural
artifacts essential to their identity and culture. Among
other impacts, border walls in the Rio Grande Valley
will damage burial and village sites by causing deeper
flooding and increased deposition of sediment and debris.6 Moreover, because the people of the Carrizo/Comecrudo Nation are indigenous to lands on both sides of
the U.S.-Mexico border, the border wall will divide the
Nation and impede access to some of these cultural and
spiritual sites.
In December 2020, U.S. Customs and Border Protection alerted the Carrizo/Comecrudo Nation of Texas
that it had found archaeological sites of cultural significance in preparation for building border barriers in
the Rio Grande Valley. No commitments have been
made to preserve these sites. Upriver of the Rio
5
Pls.’ Sur-reply Addressing Remedy at 10-12, RGISC, 453
F. Supp. 3d 11 (D.D.C. 2020) (No. 1:19-cv-00720), ECF No. 100.
First Am. Compl. at 8-9, RGISC, 453 F. Supp. 3d 11 (D.D.C. 2020)
(No. 1:19-cv-00720), ECF No. 33.
6
Pls.’ Sur-reply Addressing Remedy at 10-12, RGISC, 453
F. Supp. 3d 11 (D.D.C. 2020) (No. 1:19-cv-00720), ECF No. 100.
23
Grande Valley, north of Laredo, Texas, the U.S. Army
Corps of Engineers is also overseeing construction of a
52-mile border wall along the Rio Grande known as
Laredo Project 7 that would cause these same kinds of
harms to sites along and near Laredo Project 7’s route
that are of cultural and spiritual significance to the
Carrizo/Comecrudo Nation.7 Irreplaceable cultural artifacts and spiritual sites that connect members of the
tribe to their ancestors and lifeways are being destroyed by the Trump administration’s unchecked race
to build the border wall.
C. Damage to Private Property Interests
In addition to irreparably damaging unique public
lands, the border wall requires the seizure of hundreds
of tracts of property held by private landowners. According to a recent U.S. General Accounting Office report, as of July 2020, the federal government acquired
135 private tracts, or sections, of land and is working
to acquire 991 additional tracts. U.S. Gov’t Accountability Off., GAO-21-114, Southwest Border, Information
on Federal Agencies’ Process for Acquiring Private
Land for Barriers Report to Congressional Requesters
(Nov. 2020), https://bit.ly/3np6KWW. “The privately
owned land the government acquired or is working to
acquire totals about 5,275 acres or 8.2 square miles,
and most of it—1,090 of 1,126 tracts—is in south
Texas.” Id. The Texas Tribune reported that in many
7
Pls.’ Mem. Supp. Mot. Summ. J. at 17, 38, RGISC, 453
F. Supp. 3d 11 (D.D.C. 2020) (No. 1:19-cv-00720), ECF No. 84.
24
condemnation cases that have already occurred, the
Department of Homeland Security violated fair compensation rules and failed to conduct adequate review
of properties they were seizing, causing property owners to spend tens of thousands of dollars to contest
wrongful or inaccurate condemnations. T. Christian
Miller et al., The Taking: How the Federal Government
Abused Its Power to Seize Property for a Border Fence,
Texas Tribune, Dec. 14, 2017, https://bit.ly/3bmdjXP.
Three Amici have property interests that are
threatened by the border wall. Dr. Ramiro Ramirez
holds the deed to the historic Jackson Ranch Church
and Cemetery located in Hidalgo County, Texas.8 Dr.
Ramirez’s great-grandfather, Martin Jackson, built the
chapel on the property in 1874. The Jackson Ranch
Church was the first Protestant church in the Rio
Grande Valley and was an important stop on the Underground Railroad. Dr. Ramirez has ancestors buried
there and in the adjacent Eli Jackson Cemetery. The
Church and cemeteries are designated historical markers and continue to hold spiritual significance to Dr.
Ramirez, his extended family, and Protestant congregations that are still active in the area.
Within the Rio Grande Valley where these properties are located, Customs and Border Protection is
building a total of 110 miles of border wall.9 One
8
First Am. Compl. at 7, RGISC, 453 F. Supp. 3d 11 (D.D.C.
2020) (No. 1:19-cv-00720), ECF No. 33.
9
In December 2019, U.S. Customs and Border Protection
unlawfully diverted funds from the Treasury Forfeiture Fund
(“TFF”), 31 U.S.C. § 9705, to build two sections of wall in the Rio
25
segment of the wall known as “RGV 04” is being constructed on the levee that runs just north of the Jackson Ranch Church and Cemetery and abuts the Eli
Jackson Cemetery. This wall will cut off direct access
to the Jackson Ranch Church and Cemetery, stranding
them in a no man’s land between the Rio Grande River
and the wall, and impeding access to the cemeteries for
Dr. Ramirez and his family, as well as the public. The
wall will also cause deeper flooding and increase the
amount of sediment and debris deposited by the Rio
Grande that will irreparably harm the properties.
Amicus Mr. Joseph Hein is a rancher with more
than 579 acres of land that extends for three-quarters
of a mile along the Rio Grande downriver from Laredo,
Texas. The ranch has been passed down through his
family for nearly 100 years. Mr. Hein raises spotted Appaloosa horses and operates an aoudad (a non-native
wild sheep) hunting business on the ranch. The Rio
Grande is the only source of water on the whole property. Laredo Project 7 threatens to erode steep cliffs on
his property and degrade water quality, which jeopardizes Mr. Hein’s ranching related businesses and will
negatively impact the ecosystems and wildlife on his
Grande Valley that contribute to Dr. Ramirez’s harms, and the
agency is also likely to divert TFF funds for the barrier segment
known as “RGV 04” next to the Church and cemeteries. Pls.’ Surreply Addressing Remedy at 10-12, Rio Grande Int’l Study Ctr. v.
Trump, 453 F. Supp. 3d 11 (D.D.C. 2020) (No. 1:19-cv-00720),
ECF No. 100; Notice Regarding Use of the Treasury Forfeiture
Fund, Rio Grande Int’l Study Ctr. v. Trump, 453 F. Supp. 3d 11
(D.D.C. 2020) (No. 1:19-cv-00720), ECF No. 68.
26
ranch. This would impair his, and future generations
of his family’s, ability to use and enjoy the land.10
Amicus Ms. Elsa Hull owns land within 200 yards
of the banks of the Rio Grande, about 40 miles downriver from Laredo, Texas, where she has lived with her
two daughters for 15 years. Ms. Hull and her family
use their property and the river area for kayaking,
birding, and observing wildlife. Ms. Hull’s property is
on the edge of the flood zone, placing her property and
home at risk from increases in the severity of flooding
due to border wall construction. The construction of
Laredo Project 7 will increase the risk of property damage from flooding and debris deposition, will negatively
impact the wildlife she values observing on her property, and will destroy the habitat and wildlife that she
also enjoys seeing along Laredo Project 7’s proposed
route.11
These landowners are illustrative of the many
Americans along the border whose property will be
taken and whose lives and livelihoods will be deleteriously affected by the border wall. For them, the border
wall is not merely an environmental disaster and a national economic boondoggle12—it will destroy their use
10
Pls.’ Mem. Supp. Mot. Summ. J. at 29-30, RGISC, 453
F. Supp. 3d 11 (No. 1:19-cv-00720), ECF No. 84. The Secretary of
Defense funded Laredo Project 7 with unlawful transfers of
money from 10 U.S.C. § 2808. Id. at 17, 38.
11
Pls.’ Mem. Supp. Mot. Summ. J. at 17, 38, RGISC, 453
F. Supp. 3d 11 (No. 1:19-cv-00720), ECF No. 84.
12
The U.S. Army Corps of Engineers’ own estimates found
that the U.S. government would save roughly $2.6 billion should
27
and enjoyment of property that has been in their families, in some cases, for generations. That these construction projects may occur despite an express lack of
congressional authorization further harms their interests, as it prevents them from meaningfully participating in the political process and seeking redress from
their representatives.
Congress placed clear limits on both the amount
appropriated for border barrier construction and the
geographical areas in which these funds could be used.
The Trump administration’s violation of those limits
has seriously injured Respondents and Amici alike,
and those injuries are properly considered in this litigation.
II.
THE GOVERNMENT’S ZONE OF INTERESTS ARGUMENT CONTRAVENES THIS
COURT’S PRECEDENTS AND IGNORES
CONGRESSIONAL INTENT
The government’s invocation of the zone of interests test to evade judicial review disregards not only
the demonstrable harms suffered by the Sierra Club
and State Respondents, but also the interests of numerous other organizations, tribal nations, and individual
landowners, as Amici have demonstrated. Moreover,
the government’s position contravenes this Court’s
President-elect Joe Biden halt construction on his first day in office. Josh Dawsey & Nick Miroff, Biden Order to Halt Border Wall
Project Would Save U.S. $2.6 Billion, Pentagon Estimates Show,
Wash. Post, Dec. 16, 2020, https://wapo.st/35DpFHk.
28
precedents and negates Congress’s clearly expressed
intent to limit funding for, and the location of, border
wall construction so as to safeguard the kinds of environmental, tribal, historical, cultural, and other interests at stake in this litigation.
Given the extreme environmental havoc being
wrought along the border, it is indisputable that those
who live, work, and recreate where this damage is being inflicted—as well as the States with trust responsibilities to protect natural resources within their
borders—are suffering grievous injuries that may be
remedied through judicial relief. Indeed, the government does not dispute that the Sierra Club Respondents and the State Respondents have Article III
standing to challenge the legality of border wall construction. Rather, the government maintains that such
injuries cannot be redressed because none of the Respondents comes within the zone of interests of Section
8005 of the Department of Defense Appropriations Act,
2019, Pub. L. No. 115-245, Div. A, Tit. VIII, § 8005, 132
Stat. 2999 (2018) (“Section 8005”). The government is
wrong.13
13
The Sierra Club Respondents argue that their constitutional and ultra vires claims need not satisfy the zone of interests
test, Brief of Sierra Club et al. at 30-34, and that they meet the
requirements for a claim under the Administrative Procedure Act
(“APA”). Id. at 34-40. State Respondents contend that their claims
are reviewable under the APA because their interests fall within
the zone of interests of the statutes they invoke. Brief of State
Respondents at 2. This section addresses whether, for purposes of
pursuing an APA claim, interests such as those represented by
Respondents collectively come within the zone of interests of the
29
The Administrative Procedure Act affords judicial
review to any person with Article III standing who is
“aggrieved by agency action within the meaning of the
relevant statute.” 5 U.S.C. § 702. The interests asserted
by the plaintiff must only be “arguably within the zone
of interests to be protected or regulated” by the statutory scheme the plaintiff claims was violated. MatchE-Be-Nash-She-Wish Band of Pottawatomi Indians,
567 U.S. at 224 (quoting Ass’n of Data Processing Serv.
Orgs. v. Camp, 397 U.S. 150, 153 (1970)). This test is
“not meant to be especially demanding,” id. at 225, and
“forecloses suit only when a plaintiff ’s ‘interests are so
marginally related to or inconsistent with the purposes
implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.’ ” Id.
(quoting Clarke, 479 U.S. at 399); see also id. (explaining that courts “have always conspicuously included
the word ‘arguably’ in the test to indicate that the benefit of any doubt goes to the plaintiff ”). Further, in determining whether a plaintiff ’s interests are arguably
encompassed within the relevant statutory scheme,
such interests “may reflect aesthetic, conservational,
and recreational as well as economic values.” Ass’n of
Data Processing Serv. Orgs., 397 U.S. at 153-54 (citations omitted).
In arguing that Respondents’ interests do not satisfy this “lenient approach,” Lexmark Int’l, Inc. v. Static
Control Components, Inc., 572 U.S. 118, 129-30 (2014),
the government maintains that the “asserted interests
relevant statutes, which includes the Consolidated Appropriations Act of 2019, discussed infra.
30
are not even arguably within the zone of interests protected” by Section 8005. Brief for the Petitioner (“Pet.
Br.”) at 21. According to the government, Section 8005
“primarily protects Congress’s interests in the appropriations process,” id. at 26, and hence “Respondents’
asserted interests in public lands indirectly affected by
the transfers are entirely outside the contemplation of
Section 8005’s proviso.” Id. at 21.
The government’s reading of Section 8005 is too
limiting. Section 8005 states that “in no case” can the
Department of Defense transfer money to fund an “item”
that “has been denied by Congress.” § 8005. As discussed in the Brief for the State Respondents at 35-38,
this language provides no basis for excising Respondents’ interests from the scope of review. Moreover, Section 8005 must be considered within the context of
the overall 2019 appropriations cycle, which includes
limitations on border wall construction found in the
Consolidated Appropriations Act of 2019, Pub. L. No.
116-6, 133 Stat. 13 (2019) (“CAA”).
In fact, the government’s position directly conflicts
with this Court’s precedents, which instruct that, in assessing the range of relevant interests, statutory provisions cannot be considered in isolation but, rather,
must be viewed in the “overall context” of the statutory
scheme “under which respondents have sued.” Clarke,
479 U.S. at 401; see also Indian River Cty. v. U.S. Dep’t
of Transp., 945 F.3d 515, 530 (D.C. Cir. 2019) (“[i]n
assessing whether a plaintiff ’s interests fall within
the zone-of-interests protected by a statute, we must
consider the ‘context and purpose’ of the relevant
31
statutory provisions and regulations at issue,” and consider the specific provision claimed to be violated in
combination with other provisions to which it bears
an “integral relationship”) (quoting Match-E-Be-NashShe-Wish Band of Pottawatomi Indians, 567 U.S. at
226; other internal quotations omitted).
In the “overall context” of 2019 appropriations, the
interests of Respondents and those similarly situated
come squarely within the zone of interests. Although
the government fixates almost exclusively on the general transfer authority in Section 8005, its zone of interests analysis glosses over the relationship between
that provision and the CAA; see also Ctr. for Biological
Diversity v. Trump, 453 F. Supp. 3d 11, 42 (D.D.C. 2020)
(holding that “the CAA may indeed embrace the conservationist interests that Plaintiffs seek to protect”).
In that statute, Congress not only rejected the Trump
Administration’s border wall funding request, reducing it to $1.375 billion “for the construction of primary
pedestrian fencing, including levee pedestrian fencing,” CAA Div. A, Tit. II, § 230(a)(1), but also specifically
rejected the geographic scope of the request by limiting
the appropriated funds to the Rio Grande Valley
(“RGV”) Sector. Id. § 230(b).
Of particular importance to the zone of interests
analysis, Congress in the CAA also expressly prohibited the use of border wall funding in four areas of environmental significance within the RGV Sector—
including two units of federal public lands within the
National Wildlife Refuge System (Santa Ana National
Wildlife Refuge and the Vista del Mar Ranch tract of
32
the Lower Rio Grande Valley National Wildlife Refuge), a Texas State Park (Bentsen-Rio Grande Valley
State Park), and a private nature reserve (the National
Butterfly Center), as well as a municipal area of historical and cultural significance (La Lomita Historical
Park). Id. § 231(1)–(5). Plainly, Congress would not
have adopted these express limitations on border wall
funding if it was totally disinterested in ensuring the
compatibility of ecological, historical, and cultural values with interests in border security. See Lexmark Int’l,
572 U.S. at 128, 130 (explaining that courts use “traditional principles of statutory interpretation” to determine if a plaintiff “arguably” falls within the zone of
interests of the pertinent statutes).14
Consequently, when the “overall context,” Clarke,
479 U.S. at 401, of Congress’s border wall funding enactments is properly considered, it “requires no guesswork” to conclude that environmental, historical, and
cultural interests such as those represented and advanced by Respondents (and mirrored by Amici) fit
comfortably within the relevant zone of interests for
APA purposes. Lexmark Int’l, 572 U.S. at 131. Certainly,
Respondents’ interests are not “so marginally related
to or inconsistent with the purposes implicit” in the
statutory scheme that it “cannot reasonably be assumed
that Congress” wanted to foreclose Respondents from
14
Even if the Court accepts Petitioners’ argument that the
zone of interests precludes claims under the CAA, which it does
not, Respondents need not fall within the zone of interests for
their ultra vires claims. Ctr. for Biological Diversity v. Trump, 453
F. Supp. 3d at 48.
33
bringing suit. Id. at 129-30 (internal quotations omitted).
The government’s sweeping contention that no
plaintiff can seek judicial review of the Department of
Defense’s compliance with congressional limits on appropriations—except, perhaps, those “claiming an entitlement to transferred funds” pursuant to statutes
such as Section 8005, Pet. Br. at 28 n.3—means that
those with concrete injuries from the devastating border wall that fall within the range of interests of the
CAA are denied access to judicial review. This includes
Amici, whose interests and harms are enumerated in
this brief so that the Court can fully appreciate the dire
implications of the government’s position.
---------------------------------♦---------------------------------
34
CONCLUSION
The judgment of the Court of Appeals should be
affirmed.
Respectfully submitted,
DANNY THIEMANN
SARAH BURT
EARTHJUSTICE
50 California Street,
Suite 500
San Francisco, CA 94111
(415) 217-2013
dthiemann@earthjustice.org
sburt@earthjustice.org
JASON C. RYLANDER
Counsel of Record
DEFENDERS OF WILDLIFE
1130 17th Street NW
Washington, D.C. 20036
(202) 682-9400
jrylander@defenders.org
ERIC R. GLITZENSTEIN
BRIAN SEGEE
CENTER FOR
BIOLOGICAL DIVERSITY
1411 K Street, NW,
Suite 1300
Washington, D.C. 20005
(202) 849-8401
eglitzenstein@
biologicaldiversity.org
bsegee@biologicaldiversity.org
Date:
January 19, 2021
App. 1
APPENDIX
Before construction at Organ Pipe Cactus National Monument.
Photo: Laiken Jordahl
App. 2
After construction at Organ Pipe Cactus National
Monument (same location).
Photo: Laiken Jordahl
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.