North American Butterfly Association v. Chad F. Wolf
977 F.3d 1244
D.C. Cir.2020Background
- The National Butterfly Center (100 acres) in southern Texas abuts the Rio Grande; CBP personnel and contractors began clearing areas, installing sensors, widening roads, and maintaining a presence on the site in 2017 after DHS announced a border-wall plan.
- The North American Butterfly Association sued DHS (Dec. 2017), alleging violations of NEPA and the ESA and constitutional claims under the Fourth and Fifth Amendments based on alleged entry, occupation, and alteration of Center property.
- IIRIRA §102 authorizes the DHS Secretary to waive legal requirements for expedited construction of border barriers and bars district-court review of non-constitutional claims “arising from” such waivers; the Secretary issued a Waiver Determination (Oct. 2018) covering NEPA and ESA for construction of roads and physical barriers at the Center.
- The district court dismissed all claims: held it lacked jurisdiction over statutory claims under IIRIRA and dismissed constitutional claims as noncognizable or unripe; Congress later enacted appropriations riders (2019, 2020) prohibiting use of funds to construct fencing at the Butterfly Center.
- On appeal the D.C. Circuit (majority) held it had jurisdiction, rejected DHS’s mootness and IIRIRA-bar defenses to appellate review, affirmed dismissal of NEPA and ESA claims on the merits (waiver effective), affirmed dismissal of the Fourth Amendment claim, and reversed dismissal of the Fifth Amendment procedural-due-process claim and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Finality/appealability of district-court dismissal (order granted leave to amend) | Appeal was timely from district court’s dismissal; dismissal was final after the amendment window expired | The dismissal was non-final because court dismissed some claims without prejudice and granted leave to amend; no final judgment -> no jurisdiction | Majority: appeal was from a final decision (court intended to end the case; 14‑day window expired without amendment) and was timely. (Dissent would dismiss for lack of jurisdiction.) |
| Standing / Mootness re: Appropriations riders | Original injury existed; appropriations riders do not moot claims because DHS continues other activities (sensors, roads, presence) | Riders prohibit funding for fencing at the Center and thus moot or narrow the controversy | Court: standing existed at filing; DHS failed to show mootness—riders do not eliminate all challenged conduct; case not moot. |
| IIRIRA §102(c)(2)(A) jurisdiction‑stripping—do claims “arise from” Secretary’s waiver? | Claims challenge pre-waiver conduct; they do not arise from the Secretary’s later Waiver Determination | Waiver strips jurisdiction over NEPA/ESA claims because Secretary waived those statutes for the project area | Court: “arising from” construed narrowly; claims that predate (and do not originate from) the Waiver Determination are not barred; appellate review permitted. |
| Validity/effect of Waiver Determination (ultra vires / pre-waiver consultation) | Waiver was ultra vires because Secretary failed to perform required pre-waiver consultations; appropriations riders render waiver inapplicable to the Center | Secretary did consult as required; waiver lawfully exercised; appropriations riders do not nullify the waiver as to sensors/roads/support infrastructure | Court: ultra vires claim fails (standard for ultra vires is narrow) and appropriations riders do not defeat waiver’s applicability to the range of activities covered; waiver defeats NEPA/ESA claims on the merits. |
| NEPA / ESA claims | DHS actions required NEPA EIS and ESA consultation before actions affecting habitat and environment | Secretary’s lawful waiver removes NEPA/ESA requirements for the covered construction and attendant activities | Court: NEPA and ESA claims fail on the merits because the valid Waiver Determination precludes those statutory claims; affirmed dismissal (Rule 12(b)(6)). |
| Fourth Amendment seizure claim (open‑fields) | Government’s occupation/installation/seizure of parts of Center violated Fourth Amendment protections against unreasonable seizures | The Center’s lands are open fields; Fourth Amendment does not protect open fields from search/seizure claims | Court: Fourth Amendment claim fails—open fields are not within Amendment’s protections; affirmed dismissal. |
| Fifth Amendment procedural‑due‑process claim | DHS’s asserted control, installations, and threats to destroy gates constitute a property deprivation without adequate process | DHS’s statutory border‑patrol authority and absence of formal acquisition make the claim premature or non-actionable | Court: procedural due process claim is plausibly pleaded (deprivation by assertion of control; statutory patrol authority does not automatically justify all intrusions); reversed dismissal and remanded. |
Key Cases Cited
- Jung v. K. & D. Mining Co., 356 U.S. 335 (1958) (an order dismissing a complaint with leave to amend is not a final appealable judgment; a later absolute dismissal is required)
- Bankers Trust Co. v. Mallis, 435 U.S. 381 (1978) (courts should give effect to the district court’s intent about finality)
- In re Border Infrastructure, 915 F.3d 1215 (9th Cir. 2019) (narrow reading of IIRIRA §102(c)(2)(A) and jurisdiction over pre-waiver claims)
- American Clinical Laboratory Ass’n v. Azar, 931 F.3d 1195 (D.C. Cir. 2019) (presumption in favor of judicial review; construe jurisdiction‑stripping narrowly)
- Oliver v. United States, 466 U.S. 170 (1984) (open‑fields doctrine; Fourth Amendment does not protect open fields)
- Florida v. Jardines, 569 U.S. 1 (2013) (Fourth Amendment protects persons, houses, papers, and effects; curtilage vs open fields)
- Mathews v. Eldridge, 424 U.S. 319 (1976) (framework for evaluating procedural‑due‑process procedures required)