Administrative Law

Due Process for Butterflies in the D.C. Circuit

The North American Butterfly Association will get the chance to press its Fifth Amendment claims against the Department of Homeland Security.


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.

NEXT: Judge Barrett: "What sane person would go through [the Confirmation Process] if there was not a benefit on the other side?"

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  1. So they are claiming this is not a procedure?
    Border Patrol; “We are going to build a wall here.”
    Butterflies; “We don’t want that.”
    Border Patrol; “There can’t be gaps in a wall. That’s science.”
    Butterflies; “But it’s our property!”
    Border Patrol; “Tough shit.”

    1. I’ve always thought “due process” was a hole you could drive a truck through.

      1. Right. Getting shafted by the feds is usually due to the process.

        1. The process is the punishment.

  2. It’s things like this that make me glad I am not a lawyer trained to understand why the 4th amendment does not apply. A clearer example of seizure is hard for me to imagine.

    I also have never really understood why the 5th amendment’s taking clause is worded the way it is; surely being secure in my possessions includes forbidding the government from just taking it. The best I have figured is that the takings clause is an upside down way of allowing eminent domain. “You can’t slap me unless you pay me just compensation.” *SLAP* *hands over a dollar bill* “That’s all your slappable face is worth”.

    1. To simplify it the 4th Amendment doesn’t protect all of your property. By it’s terms in protects ” persons, houses, papers, and effects”. There is a doctrine called the “open fields doctrine” that was announced almost 100 years ago that says open fields are none of those so they aren’t protected by the 4th amendment. There is a surrounding area around a home called curtilage that is protected but outside that land isn’t protected (for the vast majority of homes and buildings curtilage does encompass all the land though – it usually only gets applied to farms and massive estates).

      Personally I don’t agree with the doctrine, but it has been around for quite some time. And was reaffirmed even after the 4th amendment framework changed to “reasonable expectation of privacy”.

      1. Yes, and that’s all part of why I am not a lawyer and have to pretend any of that makes sense.

      2. I can understand saying that you have little expectation of privacy in your public conversations, where anyone can hear you, and how that applies in “open fields”, but it’s ridiculous to say your open fields can be seized, bulldozed, and built upon by the government. That violates your property rights clear as a bell. But I suppose that’s why the Liberty Bell is cracked.

        1. That is what the Takings Clause is for

          1. I can think of a lot simpler language to combine them. Here’s my current fav:

            “People have the right, and duty, to control self and property.”

            Damn, what is so hard to understand about the difference between mine and yours? Statists act like “what’s mine is mine, and what’s yours is mine”. If it’s my goddam property, it ain’t the government’s. They don’t get to bulldoze it, build structures on it, and exercise control over it, just because some bureaucrats got a bug up his butt. If eminent domain is justified, then exercise it properly and pay for the damned property!

            1. “Damn, what is so hard to understand about the difference between mine and yours? Statists act like “what’s mine is mine, and what’s yours is mine”. If it’s my goddam property, it ain’t the government’s.”

              Here’s the problem. They are the government. Everything is theirs, nothing is yours. They only let you use it and pretend it’s yours until they decide they have a better use for it.

      3. If the private land in question is managed as a wildlife refuge, why doesn’t the curtilage apply to all of it? At what point or distance does any meaningful change of use occur?

      4. If they build their own wall/fence around the property, does it stop being “open fields”?

  3. Don’t butterflies migrate thousands of miles? Let the North American Butterfly Association find another location for the butterflies. Keeping out criminals from our country is worth the inconvenience of the butterflies.

    1. They do migrate for thousands of miles. And they therefore pass through just a few geographic bottlenecks as they do so. The options for migration sanctuaries are not unlimited.

      That said, if you want to find another location, why don’t you go get it for the association. They were there first. Why is it suddenly their problem that you want to close the border?

      More to the point, why is it there obligation to move when there are less intrusive ways for the government to achieve the same ends? Why, for example, can’t the CBP achieve all their legal and policy goals just as easily by putting their sensors on the outside of the sanctuary?

      1. “there obligation” should be “their obligation” Can we please have an edit button?!?

        1. We agree on the necessity of an Edit button.

          The smallest scintilla of a governmental interest trumps all human rights. We learned that from the dozens of failed lawsuits against the lockdown. Maybe butterflies can make a better case.

  4. Another no-interest-in-the-environment thread for the VC?

    1. It’s terribly sad, the law be damned. Butterflies, fireflies, bees, birds, and frogs and turtles are disappearing, along with natural habitat.

      The Wall sure sounded like a swell idea, save for the fact of an extensive network of “secret” tunnels between Mexico and our country and small planes and drones that can bring both contraband and willing and trafficked adults and children over the border, anyway. Illegal border crossing is big business that benefits the upper echelon dregs of both countries, and it isn’t scheduled to stop, show wall or no.

      Come to think of it, the way our government is becoming more dictatorial by the Covid day and the middle class economy silently imploding, that wall may have always been intended to keep us in, instead.

  5. 1. This has nothing to do with butterflies or the wall, and is simply a case of procedure (something the Trump administration is sorely lacking).

    2. I agree with the open fields doctrine (OFD) in a criminal investigation sort of way which is temporary and more for expedience (e.g. the cops entered an open field based on a report of a dead body). But DHS is not attempting to use OFD like this and instead are setting up a permanent presence.

  6. The title isn’t really fair. The plaintiffs are property owners who are asserting the government intruded on their property in excess of its legal authority. This seems much closer to a traditional dispute, and of course a different situation from Justice Douglas’ famous assertion that trees (and presumably butterfles) should themselves have legal rights and standing to press them.

    And indeed, private nature preserves can result in nature preservation, and recognizing their property rights can tend to further this. But private nature preserves aren’t the typical private property owner.

  7. > North American Butterfly Association

    It’s probably a good thing they’re not the North American Moth/Butterfly/Lepidoptera Association.

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