United States District Court, District of Columbia
MEMORANDUM OPINION [DKT. ## 25, 34]
RICHARD J. LEON, JUDGE
North American Butterfly Association ("NABA" or
"plaintiff), a non-profit organization devoted to
butterflies and butterfly habitat conservation, brought this
action against Department of Homeland Security
("DHS") Secretary Kirstjen Nielsen, United States
Customs and Border Protection ("CBP") Acting
Commissioner Kevin McAleenan, United States Border Patrol
("USBP") Acting Chief Carla Provost, and CBP Rio
Grande Valley Sector Chief Patrol Agent Manuel Padilla, Jr.,
each in their official capacities (collectively,
"defendants"). NABA seeks declaratory and
injunctive relief based on alleged constitutional and
statutory violations arising from defendants' border wall
preparation and law enforcement activities at NABA's
National Butterfly Center ("Butterfly Center"),
which is located near the United States-Mexico border in
South Texas. Pending before me are defendants' motions to
dismiss under Federal Rules of Civil Procedure 12(b)(1) and
consideration of the pleadings and the relevant law, and for
the reasons stated below, defendants' motions to dismiss
are GRANTED, and this case is
January 25, 2017, President Donald Trump issued Executive
Order No. 13767, directing the DHS Secretary to "take
all appropriate steps to immediately plan, design, and
construct a physical wall along the southern border"
with Mexico. 82 Fed. Reg. 8793, 8794. On February 20, 2017,
former DHS Secretary John Kelly issued a memorandum
implementing the Executive Order. See Mem. Re:
Implementing the President's Border Security and
Immigration Enforcement Improvements Policies (February 20,
2017) [Dkt. # 25-2, Att. E]. Secretary Kelly's memorandum
directed CBP to "immediately begin planning, design,
construction, and maintenance of a wall, including the
attendant lighting, technology (including sensors), as well
as patrol and access roads, along the land border with Mexico
in accordance with existing law." Id. at 5.
Neither the Executive Order, nor the implementing memorandum,
identifies any particular location or specific infrastructure
projects for the planning or construction of the physical
a non-profit organization dedicated to conserving butterflies
and butterfly habitats. Am. Compl. ¶ 15. NABA owns and
operates the Butterfly Center, a 100-acre wildlife center and
botanical garden located in South Texas abutting the Rio
Grande river. Id. at ¶¶ 46-47. The
Butterfly Center is home to a number of wildlife species
listed as threatened or endangered under federal law.
Id. at ¶ 49. The Butterfly Center is also
situated in the Rio Grande Valley Border Patrol Sector
("RGV Sector"), a USBP designation for the 17, 000
square-mile geographical patrol area encompassing the Center.
Id. at ¶ 19. Although not expressly alleged,
plaintiff does not appear to dispute that the Butterfly
Center is located within twenty-five miles of the southern
border with Mexico. See Id. at ¶ 15; PL's
Opp'n at 2, 22 [Dkt. # 30].
alleges that on July 20, 2017, the Butterfly Center's
executive director identified a work crew on Center property
using heavy equipment to "cut down trees, mow brush, and
widen a private road that runs" through the Center. Am.
Compl. ¶ 53. The executive director also noticed
"surveyor flags" elsewhere on the property.
Id. at ¶ 54. The executive director contacted
CBP, which confirmed that the agency was responsible for the
work crew, had authority for the activity, and would provide
further clarity about the work. Id. at ¶ 55. On
August 1, 2017, the Chief Patrol Agent for the RGV Sector and
two CBP agents visited the Butterfly Center and showed the
executive director "a draft proposal for the border
wall, including a segment through the Butterfly Center."
Id. at ¶ 56. The Chief Patrol Agent also
referred to "sensors" that had been placed in
undisclosed locations on Center property. Id. at
¶ 59. Plaintiff alleges that since the August 1, 2017
meeting, CBP officials have, on one occasion, "followed
and temporarily detained" the executive director and a
reporter and have "regularly station[ed]"
themselves on Center property rather than patrolling.
Id. at ¶¶ 61-62.
filed a complaint for declaratory and injunctive relief on
December 11, 2017, see Compl. [Dkt. # 1], which it
amended on March 28, 2018, see Am. Compl. [Dkt.
#19]. Based on the foregoing factual allegations, NABA claims
that defendants have failed to comply with their statutory
obligations under the National Environmental Policy Act
("NEPA") and the Endangered Species Act
("ESA") and have violated NABA's Fourth and
Fifth Amendment rights. Id. at ¶¶ 63-89.
Defendants moved to dismiss the Amended Complaint on May 25,
2018, arguing that NABA's statutory and constitutional
claims are unripe and/or otherwise defective. See
[Dkt. # 25].
October 12, 2018, defendants filed a notice informing the
Court of a determination by DHS Secretary Nielsen pursuant to
§ 102 of the Illegal Immigration Reform and Immigrant
Responsibility Act ("IIRIRA"), 8 U.S.C. § 1103
note, which authorizes the Secretary to "waive all legal
requirements"-including the ESA and NEPA-that the
Secretary "determines necessary to ensure expeditious
construction of physical barriers and roads along the United
States-Mexico border. Section 102 also deprives federal courts
of jurisdiction to review any non-constitutional "causes
or claims" that "aris[e] from any action
undertaken, or any decision made, by the Secretary of
Homeland Security pursuant to" the Secretary's
waiver authority. IIRIRA § 102(c)(2)(A). The Secretary
invoked her waiver authority on October 4, 2018, applying it
to certain areas within the RGV Sector that include
NABA's Butterfly Center property. See
Determination Pursuant to Section 102 of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996,
as Amended, 83 Fed. Reg. 51472, 51473 (Oct. 11, 2018)
("Waiver Determination"). The Secretary
"waive[d] in their entirety," inter alia,
NEPA, the ESA, and the Administrative Procedure Act
("APA") "with respect to the construction of
roads and physical barriers (including, but not limited to,
accessing the project area, creating and using staging areas,
the conduct of earthwork, excavation, fill, and site
preparation, and installation and upkeep of physical
barriers, roads, supporting elements, drainage, erosion
controls, safety features, lighting, cameras, and sensors) in
the project area." Id. at 51473-74.
Accordingly, defendants filed a supplemental motion to
dismiss contending that the Waiver Determination extinguishes
plaintiffs NEPA and ESA claims by depriving this Court of
subject matter jurisdiction over them. See [Dkt. #
Rule 12(b)(1) motion to dismiss for lack of subject matter
jurisdiction, the plaintiff bears the burden of establishing
jurisdiction by a preponderance of the evidence. See
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
(1992); see also Bank of America, N.A. v. FDIC, 908
F.Supp.2d 60, 76 (D.D.C. 2012). Because "subject-matter
jurisdiction is an 'Art[icle] III as well as a statutory
requirement[, ] no action of the parties can confer
subject-matter jurisdiction upon a federal court.'"
Akinseye v. District of Columbia, 339 F.3d 970, 971
(D.C. Cir. 2003) (quoting Ins. Corp. oflr., Ltd. v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 702
(1982)). In considering a 12(b)(1) motion to dismiss, a court
need not limit itself to the complaint, but rather "may
consider such materials outside the pleadings as it deems
appropriate to resolve the question whether it has
jurisdiction in the case." Bank of America, N.A. v.
FDIC, 908 F.Supp.2d 60, 76 (D.D.C. 2012) (quotation
marks omitted), A Rule 12(b)(6) motion to dismiss tests the
legal sufficiency of a complaint. Browning v.
Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). To survive
a 12(b)(6) motion, a complaint "must contain sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face." Ashcroftv.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks omitted). A claim is facially plausible when the
complaint allegations allow the Court to "draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Id. In resolving a Rule
12(b)(6) motion, "[t]he [C]ourt assumes the truth of all
well-pleaded factual allegations in the complaint and
construes reasonable inferences from those allegations in the
plaintiffs favor [.]" Sissel v. U.S. Dep 't of
Health & Human Servs., 760F.3d l, 4(D.C.Cir. 2014).
Amended Complaint, NABA asserts claims under the Fourth and