The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This morning the U.S. Court of Appeals for the D.C. Circuit, in North American Butterfly Association v. Wolf, revived the North American Butterfly Association's Fifth Amendment Due Process claim against the Department of Homeland Security for intruding upon a wildlife sanctuary along the U.S.-Mexico border. Dismissal of the NABA's other claims, however, was affirmed.
Judge Pillard wrote for the court's majority, joined by Judge Tatel. Judge Millett dissented. Judge Pillard's majority summarized the case as follows:
The National Butterfly Center, a 100-acre wildlife sanctuary and botanical garden owned by the nonprofit North American Butterfly Association, lies along the border between the United States and Mexico. Butterfly Center staff discovered in 2017 that a segment of the wall the U.S. Department of Homeland Security (DHS) plans to build on the border with Mexico would run through the Center's premises. After DHS confirmed that plan and asserted control over parts of the Center, the Butterfly Association sued.
The Association contends that DHS' presence on and use of parts of its property to prepare for and carry out construction of a border wall violate the Fourth and Fifth Amendments to the United States Constitution and two environmental statutes. The district court dismissed all claims, concluding the Association stated no viable constitutional claim and that section 102(c)(2)(A) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, 110 Stat. 3009, 3009-546, as amended (IIRIRA) (codified at 8 U.S.C. § 1103), strips jurisdiction over the statutory claims because the DHS Secretary waived application of environmental laws with respect to the construction of roads and physical barriers to be built at the Center. See N. Am. Butterfly Ass'n v. Nielsen, 368 F. Supp. 3d 1, 4 (D.D.C. 2019). We affirm dismissal of the Butterfly Association's statutory and Fourth Amendment claims but reverse dismissal of the Fifth Amendment claim and remand for further proceedings
consistent with this opinion.
The broad waiver provisions of the IIRIRA clearly grant the DHS Secretary the authority to waive statutory obstacles to wall construction, so those aspects of the ruling are quite straightforward (assuming, of course, that there is no non-delegation problem with the breadth of the authority delegated to DHS with that provision). The NABA tried to get around the IIRIRA, but to no avail.
The IIRIRA does not, and could not, waive the Department's constitutional obligations. On the constitutional claims, the panel majority concluded the NABA "failed to state a Fourth Amendment claim of unreasonable seizure of property it acknowledges to be 'open fields,'" but did state "a procedural due process claim under the Fifth Amendment."
Here is a portion of Judge Pillard's discussion of the NABA's claim:
A procedural due process violation under the Fifth Amendment occurs when a government official deprives a person of property without appropriate procedural protections—protections that include, at minimum, the basic requirements of notice and an opportunity to be heard. . . .
The Butterfly Association alleges that CBP has asserted control over the National Butterfly Center by entering, maintaining a regular presence on, and taking charge of areas of the Center without notice to or consent from the Association. . . . The complaint alleges that CBP installed sensors at the Center to detect above ground activity, widened private roadways within the property, cut down trees, and threatened to destroy the Association's private gates and locks without warning. . . . Those property deprivations are unexcused, the complaint alleges, by any citation on DHS' part to a "lawful basis for their intrusion and destruction of" the Butterfly Center or any effort by DHS to "acquire an interest" in property admittedly not its own through any legally recognized "steps for doing so." . . .
The due process claim survives because the government has not established that its statutory authority to enter private property to patrol the border licenses all of the alleged intrusions at the Center. For example, DHS has not argued that the contractors it allegedly employed to widen a private road at the Center . . . are "immigration officers" entitled "to exercise the power to patrol the border conferred by [8 U.S.C. § 1357(a)(3)]" by entering private property, 8 C.F.R. § 287.5(b). Nor has it established that widening private roadways, installing sensors, or regularly stationing CBP agents on Center property . . . all fall within the statutory authorization for "patrolling the border," 8 C.F.R. § 287.1(c), or justify entry onto private property under section 1357(a)(3). . . .
With allegations that government officials and contractors have entered the National Butterfly Center to alter private roadways and install sensors, and that CBP has maintained an enduring presence at the Center in connection with planned border-security infrastructure, the Butterfly Association plausibly pleads a deprivation of property without due process. At the pleading stage, we of course express no view as to whether DHS agents in fact behaved as the Butterfly Association has alleged or whether the Association's Fifth Amendment procedural due process claim will ultimately prevail.
Judge Millett dissented on the grounds that the court lacked jurisdiction to hear the case. Her dissent begins:
Cliffhangers may make for good storytelling, but they are no good for establishing appellate jurisdiction. Because the district court dismissed the complaint in part without prejudice and with express leave to amend and to seek emergency injunctive relief, and then did nothing more to conclude the case, we lack jurisdiction over this appeal.
The majority opinion offers a thoughtful theory of jurisdiction. The problem is that the Supreme Court has already answered this same jurisdictional question the opposite way. That decision binds this court. And the Supreme Court's disposition should come as no surprise. Statutory text, structure, and established principles of appellate jurisdiction foreclose our review because the district court's dismissal of the complaint was by its plain terms not final when entered by the court. The mere passage of time, without more, could not by itself make the judgment final. Neither could the litigants, through their actions or inaction, step into the shoes of the district court and singlehandedly cause the entry of a final judgment in the case. Without jurisdiction, we lack the power to address the merits. For that reason, I respectfully dissent.
One final editorial comment. In environmental policy debates it is common to present environmental conservation and the protection of private property rights as if they are in opposition to each other. Yet as this case shows, the constitutional protection of private property can also protect environmentally sensitive places—in this case, a wildlife refuge—from government excess. This is a point Ilya and I explored in our paper on the environmental consequences of unrestrained eminent domain authority, and I've examined in the context of species conservation and uncompensated takings.