North American Butterfly Association v. Mayorkas, et al

COMPLAINT for Declaratory and Injunctive Relief against All Defendants (Filing fee $ 400 receipt number 0090-5243319) filed by NORTH AMERICAN BUTTERFLY ASSOCIATION.

District of Columbia, dcd-1:2017-cv-02651

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0 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA North American Butterfly Association, a nonprofit Case No. ________________________ organization located at 4 Delaware Road, Morristown, NJ 07960, Plaintiff, -against- COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Kirstjen M. Nielsen, in her official capacity as Secretary, United States Department of Homeland Security, residing at 245 Murray Lane SW, Washington D.C. 20528-0075; Kevin M. McAleenan, in his official capacity as Acting Commissioner, United States Customs and Border Protection, residing at 1300 Pennsylvania Avenue NW, Washington D.C. 20229; Carla L. Provost, in her official capacity as Acting Chief, United States Border Patrol, residing at 1300 Pennsylvania Avenue NW, Washington D.C. 20229; and Manuel Padilla, Jr., in his official capacity as Chief Patrol Agent, United States Customs & Border Protection Rio Grande Valley Border Patrol Sector, residing at 4400 South ExpresswAY 281, Edinburg, Texas 78542, Defendants. The North American Butterfly Association ("NABA"), a nonprofit organization whose mission is to conserve butterflies and their habitats, for its complaint seeking declaratory and injunctive relief against defendants based on their failure to comply with the requirements of the Constitution and laws of the United States in relation to its border wall preparation activities and law enforcement operations at NABA's National Butterfly Center (the "Butterfly Center") in South Texas, alleges as follows through its undersigned attorneys: 0 PRELIMINARY STATEMENT 1. The United States Department of Homeland Security ("DHS"), United States Customs and Border Protection ("CBP"), the United States Border Patrol, and CBP Rio Grande Valley Border Patrol Sector ("RGV Border Patrol" and, together, the "Agencies") have failed to comply with the requirements of the Constitution and laws of the United States in relation to their border wall preparation activities and law enforcement operations at NABA's Butterfly Center. 2. Through their actions at the Butterfly Center, the Agencies have flouted the requirements of the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq and the United States Constitution. They threaten to take NABA's property without just compensation and in violation of NABA's rights to due process, including NABA's statutory rights to negotiation and consultation. 3. The Agencies and their agents and contractors have entered, damaged and destroyed NABA's private property without authorization or permission. The Agencies admit that their destructive conduct is not toward the end of patrolling the border. Instead, on information and belief, the Agencies' and contractors' activities are in preparation for the construction of a border wall which has been designated to run through the Butterfly Center. 4. The proposed border wall would deprive NABA of access to no less than two- thirds of the Butterfly Center property. 5. The Agencies' and contractors' activities (hereinafter "border wall construction") are federal actions that will impact the environment as well as several threatened and endangered species and are thus subject to the procedural and substantive requirements of NEPA and the ESA, respectively. 2 0 6. The Agencies have not provided NABA or the general public with notice or opportunity to comment under NEPA for the border wall construction. Indeed, the Agencies have not prepared any NEPA or ESA analysis for the construction. 7. Border wall construction additionally unconstitutionally and unlawfully interferes with NABA's use and enjoyment of its property. 8. The Agencies have not taken any steps to secure permission for their conduct or mitigate the harm they have caused and, upon information and belief, will continue to cause. 9. Although neither NEPA nor the United States Constitution requires a plaintiff to provide federal agencies with notice of alleged violations prior to filing suit, on October 4, 2017, NABA wrote the Agencies to provide notice of NEPA violations, unconstitutional and otherwise unlawful interference with property and consistent and constitutionally prohibited harassment of NABA employees and Butterfly Center visitors. The Agencies have not acknowledged or responded to this notice. 10. Also on October 4, NABA provided the Agencies with formal notice of violations of the ESA for their failure to consult with the United States Fish and Wildlife Service ("FWS") in order to ensure that border wall construction does not jeopardize the continued existence of threatened or endangered species or result in the destruction or adverse modification of their critical habitats. The Agencies have failed to remedy the alleged ESA violations during the 60-day notice period, and thus this Complaint includes those violations. 11. The Agencies have provided no justification or excuse for their failure to comply with NEPA or the ESA. 12. The Agencies and their contractors have ignored and otherwise violated applicable constitutional and statutory requirements. 3 0 JURISDICTION 13. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 5 U.S.C. §§ 701 – 706. The claims for relief arise under the laws of the United States, including NEPA, the ESA, the Administrative Procedure Act, 5 U.S.C. § 552, the implementing regulations established pursuant to these federal statutes, and the United States Constitution. The relief requested is authorized pursuant to 28 U.S.C. §§ 1651 and 2201 – 2202, and 5 U.S.C. §§ 705 and 706. VENUE 14. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b) and (e), because a substantial part of the events or omissions giving rise to the claims have occurred in this district due to decisions made by the Agencies, and/or failures to act by the Agencies, and because, as an action against employees of the United States acting in their official capacity, this action may be brought in any district in which a defendant resides. PARTIES 15. NABA is incorporated as a nonprofit under the laws of the State of New York and Section 501(c)(3) of the Internal Revenue Code. It is headquartered in Morristown, New Jersey, and its mission is to conserve butterflies and their habitats. NABA owns and operates the Butterfly Center, its 100-acre flagship facility in South Texas. The Butterfly Center abuts the Rio Grande and is a part of the FWS's Lower Rio Grande Valley Wildlife Corridor. Proposed border wall construction would cut off two-thirds of the Butterfly Center, effectively destroying it and leaving behind a 70-acre no-man's land between the proposed border wall and the Rio Grande. 4 0 16. Defendant Kirstjen M. Nielsen, DHS Secretary, is sued in her official capacity. DHS is responsible for ensuring border security along the United States-Mexico border. Secretary Nielsen is the official ultimately responsible under federal law for ensuring that the actions and management decisions of DHS comply with all applicable laws and regulations. 17. Defendant Kevin K. McAleenan, Acting Commissioner of CBP, is sued in his official capacity. CBP is responsible for ensuring border security along the United States- Mexico border. Acting Commissioner McAleenan is the official ultimately responsible under federal law for ensuring that the actions and management decisions of CBP comply with all applicable laws and regulations. 18. Defendant Carla Provost, Acting Chief of the United States Border Patrol, is sued in her official capacity. Chief Provost is the official ultimately responsible under federal law for ensuring that the actions and management decisions of United States Border Patrol comply with all applicable laws and regulations. 19. Defendant Manuel Padilla, Jr., Chief Patrol Agent for the RGV Border Patrol, is sued in his official capacity. RGV Border Patrol is one of nine CBP Border Patrol Sectors located along the southwest border of the United States. The RGV Border Patrol is responsible for ensuring border security along a 17,000 square-mile area. This area includes the Butterfly Center. Chief Padilla is the official ultimately responsible under federal law for ensuring that the actions and management decisions of the RGV Border Patrol comply with all applicable laws and regulations. 5 0 LEGAL BACKGROUND A. NEPA 20. NEPA is the "basic national charter for protection of the environment." 40 C.F.R. § 1500.1(a) (2017). It contains several "action-forcing" procedures, including the mandate to prepare an environmental impact statement ("EIS") on major federal actions "significantly affecting the quality of the human environment." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348 (1989); 42 U.S.C. § 4332(2)(C) (2017). 21. An EIS must include, "to the fullest extent possible," a "detailed statement" on (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible or irretrievable commitments of resources which would be involved in the proposed action should it be implemented. Edmonds Inst. v. Babbitt, 42 F. Supp. 2d 1, 17 (D.D.C. 1999). 22. NEPA requires that "[a]gencies shall integrate the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values, to avoid delays later in the process, and to head off potential conflicts." 40 C.F.R. § 1501.2 (2017). 23. DHS has issued an Instruction Manual regarding the implementation of NEPA. Instruction Manual 023-01-001-01, Revision 01, Implementation of NEPA (Nov. 6, 2014). The Manual states that "proposed construction, land use, activity, or operation that has the potential to significantly affect environmentally sensitive areas" "normally require[es]" the preparation of an EIS. DHS NEPA Manual, at p.V-9. This preparation must occur "at the earliest possible 6 0 stage so that environmental factors are considered with sufficient time to have a practical influence on the decision-making process before decisions are made." DHS NEPA Manual, at p. IV-1. Agency components making funding determinations "have a responsibility to integrate NEPA requirements early in the application process," and to ensure that "completion of the NEPA process occurs before making a decision to approve." DHS NEPA Manual, at p. VII-1. 24. NEPA requires that the Agencies involve the public in preparing and considering environmental documents that implement the Act. 40 C.F.R. § 1506.6(b) (2017). 25. The CEQ regulations further direct federal agencies to "insure that environmental information is available to public officials and citizens before decisions are made," and state that "public scrutiny [is] essential to implementing NEPA." 40 C.F.R.§ 1500.1(b) (2017). 26. The Supreme Court has stated that the preparation of an EIS promotes NEPA's broad environmental objectives in key regards. Preparing an EIS ensures that the agency, "in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts." Robertson v. Methow Valley Citizens Council, 490 U.S. at 349. "[P]erhaps more significantly," the preparation of an environmental impact statement "provides a springboard for public comment," so studies reflect the work not only of the agencies themselves, but also "the critical views" of stakeholders. Id. at 349-350. Where, as here, potential adverse impacts on air quality, waters, an international boundary, and fauna will be subject to regulation by other governmental bodies, the EIS "serves the function of offering those bodies adequate notice of the expected consequences and the opportunity to