More than a year after a federal judge tossed out a lawsuit filed against the Department of Homeland Security by the North American Butterfly Association, an appeals court has partially reversed that decision, allowing the case to once again move forward.
On Tuesday, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled that the National Butterfly Center’s suit seeking to prevent DHS from altering the center’s property and denying them access to portions of their own land can move forward on one of the center’s claims: that DHS has violated the center’s Fifth Amendment rights to due process.
However, the circuit court also upheld the lower court’s dismissal of the remainder of the center’s claims that DHS has violated their Fourth Amendment rights, as well as those alleging statutory violations of the National Environmental Policy Act and the Endangered Species Act.
“I was delighted when I heard the news,” said Marianna Treviño Wright, executive director for the butterfly center, of the circuit court’s opinion to partially reverse the dismissal.
“As we’ve stated from the beginning, that this is about the constitution and property rights — two things that supposedly were sacrosanct, specifically with Republicans, if not all Americans, but now seem to be irrelevant,” she said.
THE CASE
The case first arose on July 20, 2017, after Treviño Wright discovered government contractors on the center’s 100-acre property, which abuts the banks of the Rio Grande south of Mission.
According to Treviño Wright, the contractors were on the property on behalf of DHS, “cutting down trees, mowing down brush, widening the road” in advance of a border wall construction project which was slated to carve a path through the butterfly center.
Federal law gives Border Patrol wide latitude to access private property within 25 miles of the U.S. border for the purpose of patrolling. However, the butterfly center contends that the activities Treviño Wright discovered that day fall outside the authority granted by the Immigration and Nationality Act of 1952.
As a result, in December 2017, the center filed suit against DHS and a host of the department’s highest leaders, including then-Secretary Kirstjen M. Nielson, and Kevin M. McAleenan, who was at the time serving as acting commissioner of Border Patrol, but would later go on to serve as acting secretary of DHS.
The butterfly center’s lawsuit made four claims.
First, the center alleged DHS had violated key environmental law by failing to produce an environmental impact statement, and for failing to provide the public an opportunity to provide input on the project, as required by NEPA.
The center also alleged DHS failed to consult with other federal agencies regarding the project’s potential impact on endangered species, as required by the Endangered Species Act.
Secondly, the center alleged that DHS had violated their Fourth and Fifth Amendment rights.
“What the Fourth Amendment protects against is unreasonable seizure. And what the part of the Fifth Amendment that we’re relying on protects against is deprivation of rights without due process,” said Timothy Beeken, counsel and managing attorney for Debevoise & Plimpton LLP, the New York law firm representing the butterfly center.
However, 14 months after the center filed suit — and without holding a single hearing in the case — the district court tossed the lawsuit.
On Feb. 14, 2019, U.S. District Judge Richard J. Leon dismissed the statutory claims with prejudice after finding that, under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, he did not have jurisdiction to hear those claims.
Leon dismissed the two constitutional claims without prejudice, however, inviting the center to file an amended complaint if it so chose.
In his ruling, the judge found that the center’s property “amounts to an ‘open field,’ which is ‘unprotected by the Fourth Amendment, even when privately owned.’”
In regards to the Fifth Amendment, the judge found the claim to be premature since DHS had merely accessed the property, but had not “‘sought to acquire an interest in NABA property…’”
In the court’s view, the center could not make their Fifth Amendment claim merely in anticipation that their property could be taken for border wall construction at some future date.
THE APPEAL
Rather than amending their complaint, the butterfly center appealed their case in the D.C. Circuit Court, where the two sides delivered oral arguments before a three-judge panel in December 2019.
This week, that panel delivered a 69-page opinion upholding the dismissal of the statutory and Fourth Amendment claims, while reversing the dismissal of the Fifth Amendment claims.
The majority opinion remanding the case back to the lower court occupies some 36 pages. Meanwhile, at 30 pages, U.S. Circuit Judge Patricia A. Millet’s lone voice of dissent occupies nearly as much space as the majority opinion.
Much of Millet’s dissent focuses on arguments that neither the appellate nor the district courts had jurisdiction to hear the case, as well as an argument that the center had no standing to appeal because the lower court’s dismissal was not a final order.
The circuit court agreed with the lower court that the center has no standing to make a Fourth Amendment claim since its protections from unreasonable seizure of property extend narrowly to a person’s home and its immediate surroundings, not to a landscape that even the butterfly center agrees is an “open field.”
However, the circuit judges disagreed on the dismissal of the Fifth Amendment claim, saying the butterfly center’s argument that their due process rights are being violated merits revisiting by the lower court.
“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,” the opinion states, in part.
“But DHS provides no authority that installing multiple sensors on private property without advance notice or the landowner’s consent counts as a ‘customary[] or reasonable and necessary’ activity of ‘patrolling the border’ to prevent unauthorized immigration,” it further states.
SEEKING DEFINITION
It’s the definition of the word “patrolling” that lies at the crux of the butterfly center’s case. And it’s for that reason that Treviño Wright is ecstatic the appellate court remanded the Fifth Amendment claims.
While Border Patrol has the authority to access the property without a warrant for the purpose of patrolling the border, Treviño Wright alleges the rest of DHS’s activities fall outside that authority.
Aside from removing vegetation and altering private roadways, those activities include installing surveillance and motion sensing devices throughout the property, and prohibiting the butterfly center’s own staffers from accessing portions of the land, Treviño Wright said.
“It’s an important issue to delineate what conduct that we’ve seen on the butterfly center is within the scope of patrolling and what conduct is outside,” Beeken, the attorney, said.
For Treviño Wright, getting DHS to define “patrolling” has far reaching significance beyond the issues facing the riverside nature preserve. She sees the center’s case as a proxy for the civil rights of tens of millions of Americans who live within the border enforcement zone.
Nearly one-third of the country’s population lives within 25 miles of a U.S. border, which Treviño Wright says makes them subject to the same law “that gives Border Patrol the authority for warrantless entry to their property for the sake of patrolling” as they exercise at the butterfly center.
“And if patrolling is defined in a … manner consistent with Merriam-Webster’s dictionary, for example, that may constrain Border Patrol’s ability to conduct the kind of activities they continue to do on our property and presumably on all private property they are treating this way,” she said.
THE NEXT STEPS
The case will not recommence right away. Instead, DHS now has the opportunity to challenge the circuit court’s ruling. If they don’t, then the issue will fall back to the district court where the butterfly center hopes to press on with their Fifth Amendment claims.
Treviño Wright is no stranger to the slow-moving wheels of justice, though. Nor is she a stranger to taking on challengers with pockets deeper than the butterfly center’s.
Just one week after Beeken stood before the appellate judges in Washington arguing to reinstate the butterfly center’s case against DHS, Treviño Wright sat in a very different federal courthouse over 1,700 miles away.
On Dec. 12, 2019, she sat inside the McAllen federal courthouse where another saga between the butterfly center and border wall builders was just getting started. And again, it was the butterfly center on the offensive, having filed suit against a group of private wall builders who were putting up a riverside fence on property adjacent to the nature preserve.
The center sued construction magnate Tommy Fisher, who has thus far secured more than $2 billion in federal border wall construction contracts, as well as his companies, and local landowners Neuhaus and Sons. The suit also names as defendants the fundraising nonprofit We Build the Wall and its founder, Brian Kolfage, who in a December hearing were represented by former Kansas Secretary of State Kris Kobach in a related but separate suit filed by the federal government on behalf of the International Boundary andWater Commission.
That case, more so than the center’s lawsuit against DHS, has elicited harsh criticism of Treviño Wright by those who support border security.
She has received threats. Social media is awash with vitriol aimed at the center and at her, personally.
At one point, members of a private militia arrived at the butterfly center and were subsequently involved in vehicular pursuits with local law enforcement.
“It is lonely, honestly. You feel small. And scared often, and like you are standing alone — very much exposed and vulnerable,” Treviño Wright said of being the public face of the small center’s big legal fights.
But at the same time, she said she feels like she “was put at this place at this time for this purpose.”
“As always, I hope that justice is served. And as always, why in the hell do the butterflies have to be the ones holding the line for liberty, for justice?” she said with a weary laugh.
