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Judges Grapple With Butterfly Group’s Border Wall Challenge

Dec. 5, 2019, 5:39 PM

Federal appellate judges struggled Dec. 5 to steer through a border security dispute between butterfly conservation advocates and the Trump administration.

The U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments on whether President Donald Trump’s effort to build and enhance barriers along the U.S.-Mexico border interferes with the rights of the North American Butterfly Association.

The group operates the National Butterfly Center, a 100-acre protected area in Hidalgo County, Texas. The botanical garden sits directly along the border and has been targeted for construction of a wall and a service road.

The butterfly group filed suit against the Department of Homeland Security in 2017, alleging violations of environmental laws and the Fourth and Fifth Amendments, which prohibit unlawful searches and seizures and protect property rights, respectively.

A district court dismissed the complaint earlier this year, and the organization appealed to the D.C. Circuit. It’s one of several lawsuits from environmental and conservation groups challenging border wall construction.

Congress has since barred the administration from using appropriated funds to build a wall along the butterfly center grounds, but the North American Butterfly Association is also concerned about various border patrolling activities on the group’s land and other border security action.

Jurisdiction

The three-judge panel was concerned with whether it even has jurisdiction to hear the case. When the district court tossed the group’s claims, it did so without prejudice, meaning the group could file an amended complaint to attempt to clarify or strengthen its arguments.

Judge Patricia A. Millett questioned whether NABA should have taken that opportunity to add details to support its claims in district court, rather than filing an appeal.

Justice Department attorney Jeffrey S. Beelaert said the D.C. Circuit lacks jurisdiction for another reason—because the case touches on the Illegal Immigration Reform and Immigrant Responsibility Act, which sends appeals directly to the Supreme Court.

Judge David S. Tatel pushed back on the argument, saying the group’s environmental claims involve the immigration law, but its constitutional claims don’t.

He asked whether the environmental claims—which focused on whether the government illegally sidestepped the National Environmental Policy Act and Endangered Species Act in construction plans—were moot altogether because of the new congressional prohibition on “pedestrian fencing” at the butterfly center.

Judge Cornelia T.L. Pillard, an appointee of President Barack Obama, also sat on the panel. Millett is also an Obama appointee, and Tatel is an appointee of President Bill Clinton.

Congressional Action

Debevoise & Plimpton LLP attorney Timothy K. Beeken, representing NABA, said the group interprets Congress’ decree, which was issued in a February appropriations bill, as barring all wall construction on the site, which would eliminate the environmental claims. Congress used the term “pedestrian fending,” which is understood to bar construction of the wall on that site.

Beeken, however, said it’s unclear if the government interprets the appropriations bill the same way, or if it would try to do border wall work by classifying it as some type of permitted activity.

Beelaert, the DOJ attorney, didn’t give a clear answer on whether the government views Congress’ action as leaving room for other border work NABA has challenged.

“The government hasn’t been transparent,” Beeken said of the government’s position.

NABA President Jeffrey Glassberg—whose vocal interjections from the courtroom spectators’ section earned him a rebuke from Millett—said after arguments that “the court doesn’t necessarily have a complete grasp of all of the factual matters.”

The case is North Am. Butterfly Ass’n v. Wolf, D.C. Cir., No. 19-5052, oral arguments 12/5/19.

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Renee Schoof at rschoof@bloombergenvironment.com