Sierra Club v. Trump

977 F.3d 853

SIERRA CLUB; Southern Border Communities Coalition, Plaintiffs-Appellees,

v.Donald J. TRUMP, in his official capacity as President of the United States; Mark T. Esper, in his official capacity as Acting Secretary of Defense; Chad F. Wolf, in his official capacity as Acting Secretary of Homeland Security; Steven Terner Mnuchin, in his official capacity as Secretary of the Treasury, Defendants-Appellants.

State of California; State of Colorado; State of Hawaii; State of Maryland; State of New Mexico; State of New York; State of Oregon; State of Wisconsin; Commonwealth of Virginia, Plaintiffs-Appellees,

and

State of Connecticut; State of Delaware; State of Maine; State of Minnesota; State of New Jersey; State of Nevada; State of Illinois; Dana Nessel, Attorney General, on behalf of the People of Michigan; State of Massachusetts; State of Vermont; State of Rhode Island, Plaintiffs

v.Donald J. Trump, in his official capacity as President of the United States of America; United States of America; United States Department of Defense; Mark T. Esper, in his official capacity as Acting Secretary of Defense; Ryan D. McCarthy, in his official capacity as the Secretary of the Army; Kenneth J. Braithwaite, in his official capacity as Secretary of the Navy; Barbara M. Barrett, in her official capacity as Secretary of the Air Force; United States Department of the Treasury; Steven Terner Mnuchin, in his official capacity as Secretary of the Department of the Treasury ; U.S. Department of the Interior; David Bernhardt, in his official capacity as Secretary of the Interior; U.S. Department of Homeland Security; Chad F. Wolf, in his official capacity as Acting Secretary of Homeland Security, Defendants-Appellants.

State of California; State of Colorado; State of Hawaii; State of Maryland; State of New York; State of New Mexico; State of Oregon; Commonwealth of Virginia; State of Wisconsin, Plaintiffs-Appellants,

and

State of Connecticut; State of Delaware; State of Maine; State of Minnesota; State of New Jersey; State of Nevada; State of Illinois; Dana Nessel, Attorney General, on behalf of the People of Michigan; State of Massachusetts; State of Vermont; State of Rhode Island, Plaintiffs,

v.Donald J. Trump, in his official capacity as President of the United States of America; United States of America; United States Department of Defense; Mark T. Esper, in his official capacity as Acting Secretary of Defense; Ryan D. McCarthy, in his official capacity as the Secretary of the Army; Kenneth J. Braithwaite, in his official capacity as Secretary of the Navy; Barbara M. Barrett, in her official capacity as Secretary of the Air Force; United States Department of the Treasury; Steven Terner Mnuchin, in his official capacity as Secretary of the Department of the Treasury ; U.S. Department of the Interior; David Bernhardt, in his official capacity as Secretary of the Interior; U.S. Department of Homeland Security; Chad F. Wolf, in his official capacity as Acting Secretary of Homeland Security, Defendants-Appellees.

No. 19-17501

No. 19-17502

No. 20-15044

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 10, 2020 San Francisco, California

Filed October 9, 2020

THOMAS, Chief Judge:

This appeal presents the question of whether the emergency military construction authority provided by 10 U.S.C. § 2808 (" Section 2808") authorized eleven border wall construction projects on the southern border of the United States. We conclude that it did not. We also consider whether the district court properly granted the Organizational Plaintiffs a permanent injunction and whether the district court improperly denied the State Plaintiffs’ request for a separate permanent injunction. We affirm the decision of the district court on both counts.

I

Following the longest partial government shutdown in United States history, Congress passed the 2019 Consolidated Appropriations Act ("2019 CAA") on February 14, 2019. Pub. L. No. 116-6, div. A, 133 Stat. 13 (2019). Although the President requested $5.7 billion for border wall construction, the 2019 CAA made available only $1.375 billion "for the construction of primary pedestrian fencing ... in the Rio Grande Valley Sector [in Texas]." On February 15, 2019 the President signed the 2019 CAA into law, but announced that he was "not happy" with the amount of border wall funding he had obtained. Remarks by President Trump on the National Security and Humanitarian Crisis on Our Southern Border, White House at 12 (Feb. 15, 2019), https://perma.cc/5SE7-FS7F ("Rose Garden Remarks ").

On the same day, the President invoked his authority under the National Emergencies Act, 50 U.S.C. § 1601 et seq. (the "NEA") to declare that "a national emergency exists at the southern border of the United States." See Proclamation No. 9844 , 84 Fed. Reg. 4,949 (Feb. 15, 2019). The national emergency proclamation also "declare[d] that this emergency requires use of the Armed Forces," and made available "the construction authority provided in [ Section 2808 ]." Id. The President explained that, even though he had obtained some border wall funding, he declared a national emergency because although he "could do the wall over a longer period of time" by going through Congress, he would "rather do it much faster." Rose Garden Remarks at 12.

Since February 2019, Congress has attempted to terminate the national emergency on two separate occasions. On March 14, 2019, Congress passed a joint resolution to terminate the emergency declaration, but it was vetoed the next day by the President, and Congress failed to override the Presidential veto. See H.R.J. Res. 46, 116th Cong. (2019); 165 Cong. Rec. H2799, H2814–15 (2019). On September 27, 2019, Congress passed a second joint resolution to terminate the emergency declaration, but once again, the President vetoed this resolution, and Congress failed to override the veto. See S.J. Res. 54, 116th Cong. (2019); 165 Cong. Rec. S5855, S5874–75 (2019).

Congress has an ongoing obligation to consider whether to terminate the emergency every six months, but the President renewed the declaration of a national emergency on February 13, 2020. Message to Congress on the Continuation of the National Emergency with Respect to the Southern Border of the United States , White House (Feb. 13, 2020).

Although the President's declaration of a national emergency was issued in February 2019, the administration did not announce that it had made a decision to divert the funds until September 3, 2019, when the Secretary of Defense announced that it was necessary to divert $3.6 billion from military construction projects to border wall construction projects.

The Secretary of Defense announced that the funds would be diverted to fund eleven specific border wall construction projects in California, Arizona, New Mexico, and Texas. Altogether, the projects include 175 miles of border wall. The projects fall into three basic categories: (1) two projects on the Barry M. Goldwater Range military installation in Arizona, (2) seven projects on federal public domain land that is under the jurisdiction of the Department of the Interior, and (3) two projects on non-public land that would need to be acquired through either purchase or condemnation before construction could begin. The first two projects would be built on the Goldwater Range, and "the remaining nine will be built on land assigned to Fort Bliss, an Army base," with its headquarters in El Paso, Texas.

On September 5, 2019, the Secretary of Defense identified which military construction projects the Department of Defense ("DoD") intended to defer in order to fund border wall construction. The Secretary authorized the diversion of funding from 128 military construction projects, 64 of which are located within the United States, and 17 of which are located within the territory of the Plaintiff States—California, Colorado, Hawai'i, Maryland, New Mexico, Oregon, Virginia, and Wisconsin—totaling over $500 million in funds.¹ Pursuant to Section 2808, the Secretary authorized the Federal Defendants to proceed with construction without complying with environmental laws.

II

The Organizational Plaintiffs in this case, Sierra Club and the Southern Border Communities Coalition ("SBCC") (collectively, "Sierra Club") and the State Plaintiffs² filed separate suits challenging the Federal Defendants’³ anticipated diversion of federal funds to fund border wall construction pursuant to various statutory authorities, including Section 2808. See Sierra Club v. Trump , No. 19-cv-00892-HSG; California v. Trump , No. 19-cv-00872-HSG.

In both cases, the parties first litigated the claims challenging the Federal Defendants’ transfer of funds pursuant to Section 8005 and Section 9002 of the Department of Defense Appropriations Act of 2019, Pub. L. No. 115-245, 132 Stat. 2981 (2018) ("Section 8005")—the claims that were the subject of the prior appeals considered by this panel. The parties agreed that while litigating the Section 8005 claims, they would stay the summary judgment briefing schedule as to the Section 2808 funds until the Acting Secretary of Defense and U.S. Customs and Border Protection ("CBP") reached a final decision to fund specific border wall projects using Section 2808. The Secretary of Defense reached this final decision on September 3, 2019, and the Federal Defendants filed a Notice of Decision in both cases pending before the district court.

Nine states, including California, Colorado, Hawai'i, Maryland, New Mexico, New York, Oregon, Wisconsin, and the Commonwealth of Virginia (collectively, the "States"), filed a motion for partial summary judgment on their Section 2808 claims on October 11, 2019 in California v. Trump . On the same day, Sierra Club filed a motion for partial summary judgment on its Section 2808 claims in Sierra Club v. Trump .

On December 11, 2019, in a single opinion addressing the claims of both State and Sierra Club Plaintiffs, the district...