977 F.3d 853
9th Cir.2020Background
- In Feb 2019 President Trump declared a national emergency at the southern border and invoked 10 U.S.C. § 2808 (emergency military construction authority) to make construction authority available; DoD later identified 11 specific border-wall projects and diverted roughly $3.6 billion by deferring military construction projects.
- The 11 projects (175 miles) were in four states and involved: 2 projects on the Goldwater Range (military land), 7 on federal public land, and 2 on non-public land to be acquired or condemned; DoD directed construction “without regard to any other provision of law.”
- Sierra Club and Southern Border Communities Coalition (Organizational Plaintiffs), plus nine States led by California and New Mexico (State Plaintiffs), sued to enjoin use of Section 2808 funds for those projects.
- The district court granted summary judgment and declaratory relief to Plaintiffs, enjoined the government from using military-construction funds appropriated for other purposes to build the 11 projects (permanent injunction to Sierra Club), then stayed that injunction pending appeal.
- The Ninth Circuit (majority) affirmed: plaintiffs had Article III standing and a cause of action; Section 2808 did not authorize the 11 projects because they were not "necessary to support the use of the armed forces" and most were not "military construction projects" as defined by statute; the permanent injunction to Sierra Club was affirmed and the States’ duplicative request for a separate injunction was properly denied as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing | Sierra Club and States: members and States will suffer environmental, sovereign, and economic injuries; diversion causes lost tax revenue and harms to species and recreational use | Federal Defendants largely did not contest standing | Court: Sierra Club, SBCC, and all nine States have standing (environmental, quasi-sovereign, and economic injuries) |
| Cause of action | States: APA review available to challenge DoD’s statutory compliance with §2808; Sierra Club: constitutional challenge under Appropriations Clause | Defendants: no private cause of action or claims non-justiciable | Court: States have APA cause of action; Sierra Club has a constitutional cause of action (Appropriations Clause) |
| Scope of §2808 – “necessary to support use of the armed forces” | Plaintiffs: projects primarily benefit DHS (a civilian agency) and are not "necessary" in ordinary sense to support armed forces | Defendants: §2808 grants broad discretion; "necessary" can mean convenient or useful; decisions are committed to military judgment | Court: Projects are not "necessary" to support armed forces—record shows projects primarily benefit DHS and DoD did not show projects were required; thus §2808 not satisfied |
| Scope of §2808 – "military construction" / "military installation" | Plaintiffs: administrative assignment of land to a military installation does not convert remote civilian-located projects into military construction; "other activity" cannot be read to swallow the specific categories | Defendants: land was lawfully placed under military jurisdiction/assigned to Fort Bliss; "other activity under the jurisdiction" covers these projects | Court: Majority held projects are not "military construction" for §2808 purposes—administrative assignment and "other activity" cannot be stretched to permit boundless authority; projects distinct from Fort Bliss |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requires injury, causation, redressability)
- Summers v. Earth Island Inst., 555 U.S. 488 (court’s independent obligation to assure standing)
- INS v. Chadha, 462 U.S. 919 (invalidated concurrent resolutions; context on Congress’s check on emergency powers)
- Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (Executive power limits; Jackson concurrence framework)
- Bond v. United States, 564 U.S. 211 (individuals may invoke separation-of-powers principles)
- United States v. Comstock, 560 U.S. 126 (interpretation of “necessary” in constitutional context)
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (injunction standard where national defense interests asserted)
- United States v. Apel, 571 U.S. 359 (definition of military installation in different statutory context)
- eBay Inc. v. MercExchange, LLC, 547 U.S. 388 (standard for permanent injunction)