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Case number 19-5052, North American Butterfly Association repellent versus Chad Ed Wolf, in his official capacity as Acting Secretary, United States Department of Homeland Security, Ed Al.

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Mr. Beacon for the repellent, Mr. Bueller for the appellees.

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Good morning, your honor.

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So may it please the court.

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My name is Tim Beacon.

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I'm here for the Appellant North American Butterfly Association.

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I'm going to refer to them as NABAA in the course of my argument.

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The case involves Border Patrol effectively seizing control over two-thirds of NABA's 100-acre National Butterfly Centre and excluding NABA from it.

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The issues that are presented include whether the District Court erred in dismissing our Fourth Amendment seizure claim for failure to state a claim by relying on open field search doctrine and the Border Patrol's patrol authority.

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Whether the district court erred in dismissing the due process claims as an unright just compensation claim.

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Whether the 2019 Appropriations Act nullified the Secretary of Homeland Security's EIRRA waiver of NABBA's claims under NEPA and the ESA.

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and whether the secretary's IRIRA waiver was ultra-virus given that the secretary did not comply with the IRIRA consultation requirement before issuing the waiver.

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But first I want to address the court's jurisdiction.

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The district court's order should be viewed as final, notwithstanding that it granted leave to amend, because NAVA could not replede these claims on the facts consistent with the district court's ruling.

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The general approach is that if the district court dismisses the case, it's final, and if it dismisses the complaint without prejudice or with leave to replede, it's not final.

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But this court has noted exceptions to that rule in the Sorowski case, Sorowski v. CIA, 355F3, 661.

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And one of those exceptions is applicable here.

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That's when it's clear from the grounds cited by the district court dismissal that there was no amendment that could cure the defects.

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Where was that clear in this order?

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Well, Your Honor, the District Court held on page 8 of its memorandum of opinion, that's page 715 of the appendix, and I'm quoting, the confluence of the Butterfly Center's status as an open field and defendant's constitutional and statutory authority at the border compels dismissal of NABAA's Fourth Amendment claim.

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I mean, so the only way to cure those defects was if the Butterfly Center were a house with curtilage that was not in proximity with the border.

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Obviously, we couldn't allege that.

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There was no way to cure this.

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That means that there was similar issue with the... Well, you had a lot of facts in your declarations that were not in your complaint about the nature of border patrol activity on your land that might conceivably have altered the analysis.

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Didn't you?

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We do have a lot of facts in the declarations that we submitted.

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That are not in the complaint.

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There are also facts in the complaint.

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The two-thirds of property excluded was not in the complaint.

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Actually, Your Honor, I think that it is in the complaint.

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We're talking about the deprivation of

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I'm sorry.

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I believe that the complaint is... Well, that's through the border wall, not through the patrolling activities, right?

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You have talks about locking gates and things like that, and the border wall has been addressed through subsequent legislation.

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But I thought your declarations talked about the way they were locking gates was also going to... Well, I think we talked about

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Well, we have an unfolding situation, Your Honor, so that when we first brought suit at the end of 2017, circumstances changed, evolved, and deteriorated after that point in time.

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So, I think it's a question for the court.

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We submit these declarations which were in support of the court's jurisdiction because the government challenged jurisdiction on three of our claims.

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So the court has that.

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Is the court supposed to ignore that when it's deciding the 12b6 solution?

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Apparently they are.

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We have a case that says we're supposed to ignore them for 12b6.

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So that's something that could have been addressed in an amendment is to put all these evolving facts in and maybe the nature of either the ripeness of a taking or the nature of the intrusion for purposes of Fourth Amendment if you're outside the taking context wouldn't have been.

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I'm sorry.

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You're suggesting that we could have amended?

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I'm asking you the question.

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You had a lot of facts, and if you think you'd taken all of those facts from the declaration and included them in the complaint, and anything else that's happened in the meantime, would it have allowed you to have additional Fourth Amendment arguments beyond that would answer just the open fields argument?

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The problem, Your Honor, is that the District Court dismissed the Fourth Amendment claim as a search claim, and we pleaded a seizure claim.

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The District Court, I mean, sorry, the Supreme Court in the Soldell case made it clear that these are two completely different worlds, that search implicates privacy interests, seizure implicates possessory interests.

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But doesn't Soldell also refer

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Forgive me if my memory doesn't serve, but it doesn't also in a footnote refer to Oliver and talk about the limit to textual limitations of the fourth amendment to homes and facts and not including non residential real estate.

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It does, Your Honor, but that's actually, it's dictum in that case, and what I would say is if the court looks at the Supreme Court's decision in Donovan versus Dewey, which we also cited in our brief, there what you have is a government agency .

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.

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.

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Before you go on to other cases, Judge Piller brought up Solver.

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It says

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The Fourth Amendment does not protect possessory interests in all kinds of property, and it gives the example of an open field.

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All right.

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Well, Your Honor, I think whether the Butterfly Center is an open field is a question of fact.

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I mean, we have 100 acres.

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It's a botanical garden.

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I think that reasonable inferences suggest that at a botanical garden, there are going to be structures and equipment on the botanical garden for its use and maintenance.

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And that's in the complaint.

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It's not in your Fourth Amendment claim.

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Fourth Amendment claim is about occupation and deprivation.

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The question here is, you're the one who said your theory for jurisdiction is that there's nothing you could do to amend it to change the nature of the Fourth Amendment claim, but your Fourth Amendment claim is permanent intrusion and occupation deprivation.

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You don't have any argument about impact on any argument on effects, botanical garden.

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You're right.

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Our position is that the

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the deprivation of property interests in the Butterfly Center.

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And I mean, the Butterfly Center is both an operation, a sort of a business operation, as well as it's the land that it sits on.

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So I have a question.

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I mean, it's a tricky issue about the seizure of property.

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And I understand that you've appealed because you thought that the application of the open fields

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aspect of Fourth Amendment doctrine was error because that really, as most developed, goes to the search aspects of the Fourth Amendment rather than the seizure aspect.

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But I wonder, is that an issue we need to resolve here because aren't the same interests that you would seek to protect through your Fourth Amendment claim also protected through your Fifth Amendment claim?

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Just hypothetically, were we to recognize that you adequately pleaded a Fifth Amendment claim

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but not a Fourth Amendment claim, what would you lose in terms of the practical relief that you're seeking?

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Well, I mean, we have, I mean, I think that that's something we would like to have developed in the trial court, the difference between those things.

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But I mean, at the end of the day, if we were to prevail on a due process claim and not on a Fourth Amendment claim, I think our client would

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What exactly is your due process claim?

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Our due process claim is that they came and occupied the property in such a way that it satisfies the Elkin standard for deliberately flouting the law, because they don't have authority to be there to do that thing.

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And it has a significant, you know, it trammels our property interest.

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It has a significant constraint on our, on significant property interest.

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And the properties we're talking about are the right to exclude people from the property and also the right to use enjoyment of the property.

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Did you argue that your complaint, I didn't read your complaint as arguing that they exceeded their authority.

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I mean, your briefs talk about it, but you didn't raise a claim that they violated or went beyond their authority under 8 U.S.C.

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1357.

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Are you just going to bake that into the Fifth Amendment claim and the Fourth Amendment claims?

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Because the other thing here is you agree, your client agrees that

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They have the ability to enter for patrolling purposes under the statute.

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You don't contest that.

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You say you've always cooperated with that.

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So that seems to me that's sort of a limitation on traditional property rights that they wouldn't have in my backyard.

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And so it's going to be sort of a complicated question of showing when the intrusion went beyond what the statute, would you agree the statute allowed, what qualification on your property rights the statute

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imposes.

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And so it's going to have to be that extra, right?

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It's going to have to be something over what qualifies as patrolling.

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Before we get to a Fourth or Fifth Amendment question, aren't we?

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I don't think patrolling affects the property rights.

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Patrolling affects the privacy rights.

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It certainly affects exclusion.

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I mean, the right to exclude.

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That's a pretty traditional property right.

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Okay.

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To that extent.

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To that extent.

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Trespass, that's gone.

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As to what's, I know there's a debate about whether this was, all of this was legitimate patrolling, but it certainly

[00:12:00] Speaker 02:
Eliminate some of your trespass rights Fair enough, but we're not claiming any violation based on their legitimate patrolling What is this?

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I mean, so it seems like you and the government are to some extent talking past each other on the scope of the patrolling Prerogative You know to you it seems clear that what they're doing is a lot of activity that isn't patrolling and I take it that you're you're viewing patrolling as a

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CBP officers walking back and forth.

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And I think they're viewing patrolling to include rights of way, sensors, lights, and people walking back and forth.

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Can you help clarify what your position is on where patrolling leaves off and unauthorized property intrusion picks up?

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Patrolling leaves off when the purpose of the government's presence is not for the prevention of an illegal border crossing.

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It leaves off where they're engaging in activities that are not customary or reasonable and necessary in the language of their own.

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Your first sentence doesn't narrow it at all, because I think the only reason they're interested in building a wall is because they want to prevent illegal border crossing.

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But their own regulation, which defines patrolling, it says what's customary or reasonable and necessary.

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And I would say that's something, again, another thing we'd like to develop in the trial court, because building a wall is not customary or reasonable and necessary.

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As far as I know, it's Hadrian's wall and the Great Wall of China are the only times this has been tried.

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Well, if the wall means barriers, different types of barriers,

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I'm sorry.

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It all means different types of barriers.

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Yes.

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That is a pretty common tool that the border patrol uses to police the border, to patrol the border.

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And so the question is whether what's customary and necessary for purposes of this provision as to private property is narrower than say what they would do at the actual border.

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at the actual border crossing themselves.

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Well, Your Honor, at the border crossing itself, I'm not aware of any instance where the government, and I don't think there's anything in the record about the government using barriers on private property.

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They use barriers on a public road.

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So they haven't built a barrier, and you are claiming a ripe Fifth Amendment claim.

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Can you more concretely identify for us

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what activities the government has undertaken that you believe are not concomitant to patrolling.

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Yes, their statement to NABAA's staff and guests that they're excluded from the 70 acres of the property, over two thirds of the property.

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Is that in the complaint of the declaration?

[00:15:05] Speaker 02:
It's in both.

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The complaint just talked about showing that they were going to do a wall and it would go through and cut off two-thirds and I thought the declarations was where we got the

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using lock gates and stuff to keep people from going.

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Am I wrong?

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That's a different thing, right?

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Because the, we're going to build a wall through falls away with the Appropriations Act limitation, but then what the declarations add is fine, but now what they're doing is locking gates and preventing our access.

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But that's not in the complaint.

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We're having all this conversation because you said there's nothing you can do to amend your complaint.

[00:15:39] Speaker 02:
Paragraph 60 of the complaint has the local board of patrol chief telling NABA that it can't lock its gates and that if it does, they're going to cut the locks.

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But that doesn't have the two-thirds.

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I beg your pardon?

[00:15:51] Speaker 04:
That doesn't make the two-thirds point you were just doing.

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I mean, maybe if they mean you're locking the gates to keep the border patrol people out, you can't do that.

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That might be ordinary border patrol.

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It might be customary and reasonable.

[00:16:06] Speaker 02:
Your Honor, we may not have said two-thirds in the complaint, but we made it clear that they're blocking NAVA staff and guests from substantial portions of the property.

[00:16:15] Speaker 05:
So the blocking off from the property, there was some...

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evidence or allegations about locking, replacing your locks with their locks.

[00:16:23] Speaker 02:
Yes.

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What about lights?

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What about sensors?

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I just, it would be helpful to me to know whether it's, I mean, I think maybe we're asking two different questions, but for me, it would be helpful to know as a factual matter, whether it's in the complainer and the declarations, what for you is, is in our property intrusions that are not permitted by the authority to patrol.

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So one is the exclusion of people from half of the land.

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Is there anything else?

[00:16:49] Speaker 02:
Yes.

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Another is- I'm sorry, before you go to the other, I don't see in your complaint the exclusion by the border patrol officers from two-thirds of the complaint.

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What it says is, it says is, and if I'm just looking at the wrong paragraph, just tell me.

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You have the border roll thing, but then that's fallen away.

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And then they say, you can't lock your gates.

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That doesn't mean you can't go somewhere.

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And then it says there was this campaign of harassment when they temporarily detained a couple of people.

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It could possibly be on J.A.

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35 at paragraph 62 about vast stretches of the property.

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They're interfering with it.

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They're interfering.

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And the claims for relief, we claimed their occupation and his occupation and deprivation of the property in paragraph 89.

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So you say they're confronting them and they station themselves.

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I'm not sure how that's different from controlling and certain vast stretches are off limits permanently or?

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No, it's intermittent, Your Honor.

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I mean, sometimes they're there for three weeks, and we can't go there, and then they're gone for a week, and then they're back for two days, and then they're gone for another week.

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So this is permanent.

[00:17:58] Speaker 02:
It's not permanent.

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I mean, it is all taken together.

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It is having a substantial impact on the Butterfly Center's use and enjoyment of its property.

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But it's not permanent.

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So you were asking me about the facts.

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So they've also invited government contractors and others onto the property without NOBIS permission, so that's the right to exclude others.

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The Border Patrol has taken it upon themselves to invite these other people on.

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We have interference with NAVA's operations for no legitimate purpose.

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Stopping and interrogating staff on a butterfly center and public roads nearby, even though they know who they are, right?

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So again, the Border Patrol stops and questions people.

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But when they know who they are and they're continually stopping and questioning them, that's pretextual.

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They tell visitors that they have told visitors approaching the butterfly center that it closed down and they should leave the area.

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They've even used helicopters to harass guests.

[00:19:06] Speaker 03:
Are the helicopters in the complaint?

[00:19:11] Speaker 02:
No, they're not.

[00:19:12] Speaker 02:
That happened subsequent to the... But you didn't amend your complaint.

[00:19:18] Speaker 02:
Not for this purpose, right.

[00:19:21] Speaker 05:
I'm just curious about the censors.

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Are they legitimate patrolling or not?

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I thought that the CPP does use sensors in various places.

[00:19:35] Speaker 02:
They may.

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I may certainly have told us that they've planted them on the Butterfly Center.

[00:19:39] Speaker 02:
And is that legitimate patrolling?

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I would submit not.

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I think it's a taking.

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I mean, it's a taking like putting the cable box on top of the apartment building.

[00:19:49] Speaker 05:
So the sensors are permanent?

[00:19:51] Speaker 02:
Yes.

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And I just want to know concretely.

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I mean, even when I ask you for concrete, you talk about exclusion.

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And I get that there are some concrete allegations about that.

[00:20:01] Speaker 05:
Are there other physical things?

[00:20:03] Speaker 05:
I mean, I know there are pictures in the record about trucks being parked.

[00:20:08] Speaker 05:
There's allegations about lighting.

[00:20:12] Speaker 02:
Well, the lighting is part of the proposed project.

[00:20:18] Speaker 02:
But I guess actually the short answer is they have not installed lighting.

[00:20:22] Speaker 02:
Lighting is not a current problem that we're having.

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We're concerned about whether they do it because that would have a terrible impact.

[00:20:30] Speaker 05:
Clearing of a 150 foot wide

[00:20:34] Speaker 02:
Yeah, and they said that their instructions were to clear all the way to the river, 1.2 miles, the whole lower two-thirds of the property, which represented a substantial investment of time and grant money.

[00:20:49] Speaker 05:
They haven't done that yet.

[00:20:52] Speaker 02:
They were stopped.

[00:20:53] Speaker 04:
Right.

[00:20:55] Speaker 04:
That's not in your complaint.

[00:20:56] Speaker 04:
It says that they tore up a lot of shrubs and stuff, but I didn't hear in your complaint that what they tore up was

[00:21:05] Speaker 04:
Property of the that it was sort of habitat cultivated or created with grant money by the Center Which would make it would that make it an effect?

[00:21:18] Speaker 02:
Oh I don't think it makes an effect, but I would say that I think that a reasonable inference really What that makes doesn't make but that your landscaping is not an effect for purposes of the Fourth Amendment.

[00:21:31] Speaker ?:
I

[00:21:32] Speaker 02:
Actually, I'm sorry, Your Honor.

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I would think that is ineffective.

[00:21:36] Speaker 04:
But that wasn't in your complaint.

[00:21:37] Speaker 02:
It's not in our complaint.

[00:21:38] Speaker 02:
But what is?

[00:21:40] Speaker 04:
I'm sorry.

[00:21:40] Speaker 04:
I don't want to interrupt you, but I also want to make clear I understand what I'm asking is you do talk, the complaint does talk about widening this road and tearing up a lot of shrubbery and stuff, but I hadn't seen a Fourth Amendment allegation or facts alleging that in doing that they were seizing the facts and that they were picking up, moving, destroying, controlling

[00:22:01] Speaker 04:
landscaping.

[00:22:03] Speaker 02:
Your honor, the allegations in the complaint say, as the government concedes, that it's a botanical garden.

[00:22:11] Speaker 02:
We're entitled to reasonable inferences.

[00:22:13] Speaker 02:
It's a reasonable inferences that if you have a botanical garden.

[00:22:17] Speaker 04:
You have an argued interference with effects here.

[00:22:19] Speaker 04:
That's correct.

[00:22:20] Speaker 04:
You've just argued about open field doctrine.

[00:22:22] Speaker 02:
I'm sorry, I'm trying to answer the question about whether

[00:22:26] Speaker 02:
whether we have in the complaint that there is landscaping.

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And I'm saying that it's a reasonable inference that when you have a hundred acre botanical garden that it's not just, you know, you're calling your back field that you let grow wild your garden, that it's a garden.

[00:22:42] Speaker 02:
And it does indicate that there are

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trails and observation and conservation areas, educational exhibits, a plant nursery.

[00:22:49] Speaker 04:
But not that any of those were disrupted by this road.

[00:22:51] Speaker 02:
A bigger pardon?

[00:22:52] Speaker 04:
There's no allegation that those were disrupted by the road.

[00:22:54] Speaker 04:
And so if it's just, sometimes what conservation areas do is just conserve natural habitat.

[00:22:59] Speaker 04:
And sometimes they invest in the habitat.

[00:23:02] Speaker 04:
And that's what I'm trying to sort out.

[00:23:03] Speaker 02:
But we're not talking about a conservation area.

[00:23:05] Speaker 02:
We're talking about a botanical garden, as the government concedes.

[00:23:09] Speaker 02:
Reasonable inference is that a botanical garden is cultivated.

[00:23:13] Speaker 04:
Can I ask you a quick fact question?

[00:23:16] Speaker 04:
Is the center right on the border or is it just very close to the border?

[00:23:22] Speaker 02:
Right on the border.

[00:23:23] Speaker 02:
So that is to say that the south end of the Butterfly Center is the banks of the Rio Grande.

[00:23:33] Speaker 03:
Mr. Beacon, I want to change

[00:23:34] Speaker 03:
if it's okay with my colleagues, the subject for just a second and ask you to focus on the effect of the appropriations rider on this litigation.

[00:23:47] Speaker 03:
You describe the rider as intending to protect the Butterfly Center from new construction, including walls, barriers, roads, enforcement zones, artificial lighting.

[00:24:04] Speaker 03:
Which I think is right.

[00:24:06] Speaker 03:
So am I right that the way I read that then is that this moots the appropriation writer, moots your NEPA and Endangered Species Act claims completely.

[00:24:19] Speaker 03:
You've got all the relief you could possibly get, right?

[00:24:24] Speaker 03:
Which leaves, let me just finish my sentence, which leaves only the constitutional claims.

[00:24:31] Speaker 03:
Is that a right way to think about this case?

[00:24:34] Speaker 02:
It could be.

[00:24:36] Speaker 02:
The uncertainty we have is how the government interprets the writer on the Appropriations Act.

[00:24:43] Speaker 02:
We don't know.

[00:24:44] Speaker 03:
But is that part of this case?

[00:24:47] Speaker 02:
A bigger part?

[00:24:47] Speaker 03:
All we have is the language of the Appropriations Act and your statement about what you think it means.

[00:24:56] Speaker 02:
If it means what we think it means, yes, Your Honor.

[00:24:59] Speaker 03:
Everything is moot except the constitutional questions, right?

[00:25:02] Speaker 02:
For now, yes, your honor.

[00:25:04] Speaker 02:
We don't know what's going to happen with the next Appropriations Act, but that's true.

[00:25:07] Speaker 02:
Pardon me?

[00:25:07] Speaker 02:
We don't know whether the carve-out for the Butterfly Center will be preserved in the next Appropriations Act.

[00:25:14] Speaker 03:
Well, but the next Appropriations Act would not only have to have a carve-out, it'd have to appropriate money.

[00:25:19] Speaker 03:
in the next Appropriations Act for wall construction, correct?

[00:25:23] Speaker 03:
Yes, Your Honor.

[00:25:24] Speaker 03:
In order for this case not to be moved, there not only has to be a new appropriations bill with money without a carve out, correct?

[00:25:35] Speaker 02:
That's our interpretation.

[00:25:37] Speaker 03:
Okay, but just looking at the language of the appropriations bill.

[00:25:44] Speaker 03:
aren't I correct that everything in this case is moot except your constitutional claims, right?

[00:25:52] Speaker 03:
I don't understand why they wouldn't be.

[00:25:55] Speaker 02:
According to our interpretation, yes.

[00:25:58] Speaker 03:
And here's why I'm qualifying it.

[00:26:01] Speaker 02:
The reason I'm qualifying that is because we asked the government when the Appropriations Act was enacted what their intentions were because the language of the Appropriations Act rider is not identical to the language that the

[00:26:14] Speaker 02:
secretary used in her announcement of this project and the waiver.

[00:26:20] Speaker 02:
So we weren't sure if they thought, well, we're just not going to build the wall, but we're still going to put in the lighting in the enforcement zone.

[00:26:28] Speaker 02:
We've never heard back from them.

[00:26:29] Speaker 02:
So that remains an element of uncertainty for us.

[00:26:32] Speaker 02:
I don't know what their position is on this.

[00:26:34] Speaker 04:
Our position is... If they disagree with that legal interpretation, then the case is not moot, correct?

[00:26:39] Speaker 02:
Correct.

[00:26:40] Speaker 04:
At least until that question is resolved.

[00:26:42] Speaker 02:
Yes.

[00:26:42] Speaker 04:
And the Appropriation Act says they can't use funds for pedestrian fencing, but the allocation of funds is for both pedestrian fencing and, in a separate paragraph, border security technologies.

[00:26:56] Speaker 04:
So I assume that's where the action is here, if they were to say that what they are doing is border security technologies and not pedestrian fencing.

[00:27:07] Speaker 04:
then it wouldn't fall within the restriction of the Appropriation Act.

[00:27:11] Speaker 04:
Is that where all the action is here?

[00:27:13] Speaker 02:
Right.

[00:27:14] Speaker 02:
That's our concern.

[00:27:14] Speaker 02:
Our concern is that you're going to say some of what they were going to do, they're not barred from doing.

[00:27:20] Speaker 03:
Anything else?

[00:27:21] Speaker 03:
Anything else?

[00:27:23] Speaker 03:
OK.

[00:27:23] Speaker 03:
Thank you.

[00:27:24] Speaker 02:
Thank you, Your Honor.

[00:27:24] Speaker 03:
Let's hear from the agency.

[00:27:26] Speaker 02:
Oh, yeah.

[00:27:27] Speaker 02:
Thank you.

[00:27:40] Speaker 01:
Good morning, Your Honors.

[00:27:41] Speaker 01:
My name is Jeff Bealert.

[00:27:43] Speaker 01:
May it please the Court, I'm here on behalf of the federal appellees.

[00:27:47] Speaker 01:
I'm joined at counsel's table by Caitlin Straker from the Department of Homeland Security.

[00:27:54] Speaker 01:
I just want to touch on, first off, a few factual matters that were raised

[00:27:59] Speaker 01:
in the previous argument.

[00:28:00] Speaker 03:
Wait, wait.

[00:28:01] Speaker 03:
Why don't you do that?

[00:28:02] Speaker 03:
Why don't you tell us, why don't you tell us first your reaction to whether you think we have jurisdiction because of the fact that there was a... Sure, and that's where I wanted to start, Your Honor.

[00:28:11] Speaker 01:
On the Section 1291 question, there's a minute order issued by the District Court on February 14th.

[00:28:20] Speaker 01:
2019, and that order states that the Butterfly Association shall have leave to amend, have leave to file a second amended complaint within 14 days.

[00:28:32] Speaker 01:
And what the association did here was not to file an amended complaint, given the opportunity, but it filed a notice of appeal.

[00:28:42] Speaker 03:
And we're satisfied that we have jurisdiction.

[00:28:45] Speaker 01:
Yes, Your Honor, and there's also within the district court, so the Sorolsky case talks about... Because you know there's a circuit split on this issue, and this circuit's never expressed its view about this subject.

[00:28:55] Speaker 01:
Right, so my reading of the, we did not raise this argument.

[00:28:58] Speaker 01:
Our argument on jurisdiction is related to the illegal immigration reform act, but touching on the 1291 issue, we read Swarovski in that it was the dismissal of either a complaint or the entire case.

[00:29:11] Speaker 01:
Even Swarovski says it's sometimes difficult to tell exactly what the district court is doing.

[00:29:16] Speaker 01:
The district court in this case, there's a line in its decision where it says this case is dismissed,

[00:29:22] Speaker 01:
I think that in the Swarovski case, you had a situation where the district court did not allow... The question is whether it was dismissed.

[00:29:27] Speaker 04:
There's no question it was dismissed.

[00:29:28] Speaker 04:
The issue here is it was dismissed without prejudice with 14 days leave to amend.

[00:29:34] Speaker 01:
Right, and if they wanted to amend their complaint, they had the opportunity to do so, Your Honor.

[00:29:38] Speaker 01:
They chose to file a notice of appeal.

[00:29:41] Speaker 01:
If the court wants to dismiss under 1291, that works for us.

[00:29:47] Speaker 01:
Our argument is that this court actually lacks jurisdiction under the Illegal Immigration Reform and Immigrant Responsibility Act.

[00:29:54] Speaker 04:
That's a different argument.

[00:29:55] Speaker 01:
Which which counsel in opposing also didn't even address in the roughly half hour that the council was standing here.

[00:30:02] Speaker 01:
So section 1 0 2.

[00:30:03] Speaker 04:
I want to stay on on this issue.

[00:30:06] Speaker 04:
They say they're in Swarovski because there's nothing they could do to amend their complaint to change the outcome of the district court's ruling.

[00:30:14] Speaker 04:
Do you agree with that.

[00:30:16] Speaker 01:
Your Honor, you've raised instances of allegations that they put in declarations that do not appear in their complaint.

[00:30:23] Speaker 04:
To the extent that they- Do you agree that those could change the Fourth Amendment analysis?

[00:30:28] Speaker 01:
Your Honor, I think we have very strong arguments on the merits that the Fourth Amendment analysis in this case was absolutely correct and that they would not- Do you agree that botanical gardens or landscaping is an effect?

[00:30:39] Speaker 01:
That issue is not raised below.

[00:30:41] Speaker 04:
I know it's not raised below.

[00:30:43] Speaker 04:
I'm asking you the question of whether the amendment would make any difference.

[00:30:46] Speaker 04:
And so part of that would be I'm not sure it's my job to sit here and speculate as to whether there's a position on what counts as effects on property.

[00:30:55] Speaker 01:
That was never raised below, Your Honor.

[00:30:58] Speaker 01:
It's never been raised by the opposing counsel.

[00:31:00] Speaker 01:
To my knowledge, the Fourth Amendment... You are making the textual argument about the Fourth Amendment in your brief.

[00:31:05] Speaker 01:
I'm making an argument that the Supreme Court has articulated in several cases, Your Honor.

[00:31:08] Speaker 04:
Well, about open fields, but not about effects.

[00:31:12] Speaker 01:
Open field, there's a case that I cited, open fields are not effects.

[00:31:16] Speaker 01:
I believe that's either Oliver or Esther.

[00:31:18] Speaker 04:
I know, but I'm trying to figure out what's going on because if you're mowing down, excuse me.

[00:31:23] Speaker 01:
To my knowledge, I believe we cited a case.

[00:31:25] Speaker 01:
I'm sorry.

[00:31:25] Speaker 04:
Excuse me.

[00:31:26] Speaker 04:
If you are mowing down people's landscaping,

[00:31:29] Speaker 04:
that's part of their botanical garden, the question, it doesn't go enough to say that all happens to be out on a field.

[00:31:37] Speaker 04:
You still have to answer the question of the stuff that was bulldozed, which wasn't the field, it was the botanical plants, rocks, structures.

[00:31:47] Speaker 04:
There, don't you have to, don't you have to, to make that open field's argument address that question?

[00:31:51] Speaker 01:
Let's back up, and this is part of my concern with the factual issues.

[00:31:54] Speaker 01:
Nothing has been bulldozed, Your Honor.

[00:31:56] Speaker 01:
There's been no

[00:31:58] Speaker 01:
Enforcement zone created there's but none of these things have occurred.

[00:32:01] Speaker 04:
So to the extent that some before we do that Doesn't the complaint alleged that there was a widening of a road?

[00:32:07] Speaker 01:
Has not occurred yet your honor.

[00:32:08] Speaker 01:
There's a levy road.

[00:32:10] Speaker 01:
There's a road that goes along the top of the levy There was a license that was in place that we cited this in our brief that license allowed the clearing of Shrubbery and some things in order to provide sight lines the clearing that has occurred has occurred under that license there has not been 53 of the complaints say there was a crew there using chainsaws using these to cut down trees mow brush and widen a private road

[00:32:36] Speaker 04:
The crew had cleared, that sounds like past tense to me, up to 18 feet on each side of the road.

[00:32:41] Speaker 01:
Right, and all of that was done under, my understanding is the license that was in place that was rejected in 2017.

[00:32:48] Speaker 01:
That was not associated with... So it was under the license rejected in 2017?

[00:32:52] Speaker 01:
There was a, they denied, we talked about it in our brief, Your Honor, there was a license for the border patrol to enter their property and maintain this road.

[00:33:00] Speaker 01:
Part of that entering... License from who?

[00:33:03] Speaker 01:
It was an agreement between the Customs and Border Enforcement and the Butterfly Association.

[00:33:10] Speaker 04:
Well, they certainly don't agree that this was within the scope of that license.

[00:33:14] Speaker 04:
That's why it's in their complaint.

[00:33:16] Speaker 01:
That's their allegation, Your Honor.

[00:33:18] Speaker 04:
Well, we take it as true at this stage.

[00:33:21] Speaker 01:
Okay, I'm just providing you some background to explain exactly what was going on here.

[00:33:25] Speaker 01:
The extent that this enforcement zone had been contemplated, there's been no bulldozers, there's been no enforcement zone that's been created here.

[00:33:33] Speaker 03:
Do you want to go back for a minute?

[00:33:35] Speaker 03:
Your view is we don't have any jurisdiction to hear any of this anyway, right?

[00:33:38] Speaker 01:
Yes, Your Honor.

[00:33:39] Speaker 03:
Could you just explain to me, I'm looking at the statute.

[00:33:43] Speaker 01:
Yes.

[00:33:44] Speaker 03:
It says, it seems to me the constitutional claims aren't covered by

[00:33:49] Speaker 03:
the statute because they don't quote arise from any action taken or any decision made by the secretary in connection with the waiver.

[00:34:01] Speaker 03:
The constitutional claims, that's not what their constitutional claims are.

[00:34:06] Speaker 03:
They don't have anything to do with the waiver.

[00:34:09] Speaker 03:
So why does this provision block their fourth and fifth amendment?

[00:34:15] Speaker 01:
Right.

[00:34:15] Speaker 01:
So the text of Section 102, what it states is that it's arising from any decision made or any action undertaken by the secretary.

[00:34:32] Speaker 01:
And it refers you back to Section 1, which talks about waiving compliance with environmental laws or any legal requirement, actually,

[00:34:43] Speaker 01:
for barriers and roads.

[00:34:45] Speaker 01:
And if you look at, and we talk about the structure of this statute, section 102B, and this is, you gotta go up a little bit, it talks about barriers and roads and things that are authorized when, and this is under section 102A, but under 102B, it says roads, lighting, cameras, sensors, barriers, fencing, it lists a whole bunch of things that fall under barriers and roads.

[00:35:11] Speaker 01:
And so,

[00:35:12] Speaker 01:
What we argued, and this is absolutely correct, from the President's executive order to the memorandum that was issued by the Department to the Border Patrol, as well as the ultimate waiver that was issued, all of these cite to authority in the Immigration Reform and Responsibility Act.

[00:35:30] Speaker 01:
That is the authority by which

[00:35:32] Speaker 01:
these activities are occurring.

[00:35:34] Speaker 01:
So the fact that the secretary contemplated putting in lighting and doing some of the things, excavation, fill, the roads, all of that was under the authority of this Immigration Reform Act.

[00:35:48] Speaker 01:
That's where this authority comes from.

[00:35:51] Speaker 01:
That is separate from Section 357, 1357.

[00:35:53] Speaker 01:
1357 is a patrolling statute.

[00:35:58] Speaker 01:
But the authority by which the president and the department and the board of patrol is actually engaging in some of the activities that lead to the complaints and the constitutional violations that they've alleged, all of that is wrapped up in actions that were taken under the Immigration Reform and Responsibility Act.

[00:36:15] Speaker 05:
Mr. Bielo, but the jurisdiction strip talks about actions arising from the secretary's waiver.

[00:36:22] Speaker 05:
And the Ninth Circuit has reasoned that

[00:36:26] Speaker 05:
If you're not challenging the waiver or things that flow from the waiver, but things, as in this case, that preceded, the arising from language would seem to limit the scope of what's stripped not to include.

[00:36:41] Speaker 01:
So our argument is, and I take your point, Your Honor, the arising from, if any decision made is read narrowly to mean the decision to waive, you've still got to account for the fact that there's any action undertaken by the secretary.

[00:36:56] Speaker 01:
And here, all of the actions undertaken by the secretary, all of the actions undertaken by the government, are related directly to the immigration reform.

[00:37:04] Speaker 03:
It's related directly to the waiver.

[00:37:06] Speaker 03:
It says any decision made by the secretary pursuant to Section 102C1.

[00:37:19] Speaker 03:
That's the waiver section.

[00:37:21] Speaker 01:
Yes, Your Honor.

[00:37:21] Speaker 01:
And the waiver section talks about the expeditious construction of

[00:37:26] Speaker 01:
roads and barriers.

[00:37:27] Speaker 01:
And so when the department issues a waiver, and in this case I understand the timing of this, they filed their complaint, months went by and the secretary issued the waiver.

[00:37:37] Speaker 01:
The reason why the secretary issued the waiver, when she did, has nothing to do with litigation, but has to do with the simple fact of when contracting is available.

[00:37:45] Speaker 01:
The secretary issues waivers right at the time that the government is able to proceed with contemplated projects.

[00:37:52] Speaker 01:
So yes, all of the things that they've alleged, all of the activities that have been occurring on their property that are tied to their constitutional claims, they're all directly related to the authority under the reform act.

[00:38:02] Speaker 03:
There's a lot of case law in the Supreme Court in here.

[00:38:05] Speaker 03:
which says that jurisdictional stripping statutes have to be read narrowly, especially when it comes to constitutional cases.

[00:38:13] Speaker 03:
And if Congress had meant this to say what you said, you think it does, it wouldn't have said arising from, it would have said in relation to.

[00:38:27] Speaker 01:
Your argument is that all of the actions are arising from actions undertaken by the secretary in this case.

[00:38:33] Speaker 01:
If the court concludes that that's not the case and you do find that you have jurisdiction to consider the merits of the dismissal of the Fourth Amendment and the Fifth Amendment claims, we have presented arguments that I believe are correct that the Fourth Amendment

[00:38:48] Speaker 01:
and the Fifth Amendment claim, the District Court properly dismissed those claims.

[00:38:52] Speaker 03:
So can you explain to me for a minute why they didn't state a Fifth Amendment due process claim here?

[00:38:58] Speaker 03:
I mean, they own the Center.

[00:39:00] Speaker 03:
They allege that the Border Patrol deprived it of a possessory interest in it without any procedures.

[00:39:07] Speaker 03:
Why isn't that a due process claim?

[00:39:10] Speaker 01:
They had knowledge, Your Honor, and this is where we get back to the Patrol statute.

[00:39:13] Speaker 01:
Even before any of these activities occurred,

[00:39:16] Speaker 01:
uh... the border patrol has been controlling the border in this area for a very long time they and their complaint recognize that the border patrol has the authority under uh... section thirteen fifty eight to enter their property it's allowed to enter property within twenty five miles of the border without a warrant uh... they had notice of that they are well aware of the fact that the border patrol has entered their property

[00:39:40] Speaker 01:
They need to allege, and this is the case law that we've talked about in our brief, they need to allege what process they are due.

[00:39:47] Speaker 01:
And if they have knowledge of a statute that provides the government with authority, they allege that it was unlawful.

[00:39:52] Speaker 01:
There's nothing unlawful about the patrol activities that have been occurring actually for decades.

[00:39:57] Speaker 05:
So what's your position on what

[00:40:00] Speaker 05:
the Patrol Act authorizes relative to the various facts that they've either alleged in their complaint or in declarations, because I do think there's a bit of a disagreement about that.

[00:40:12] Speaker 01:
Right, so the regulation talks about customary, reasonable, and necessary activities.

[00:40:18] Speaker 01:
We've cited a couple cases to suggest that if held, that the Border Patrol has installed sensors on the border that is customary, reasonable, and necessary activities involved with

[00:40:29] Speaker 01:
preventing illegal crossings.

[00:40:31] Speaker 01:
The sensors in this case are not permanent.

[00:40:33] Speaker 01:
These are not permanent installations.

[00:40:35] Speaker 01:
The Border Patrol puts sensors in places and they remove those sensors or they put them in other places.

[00:40:40] Speaker 01:
They're not permanently located there.

[00:40:43] Speaker 01:
The enforcement of the border, this is well recognized that under the Fourth Amendment, the balance of the reasonableness tips sharply in favor of the government.

[00:40:54] Speaker 01:
The government has an interest.

[00:40:55] Speaker 05:
Is it typical in patrolling to have, for example, cars, patrol people's cars parked across a private road on private property?

[00:41:06] Speaker 05:
Is it typical of patrolling to put CBP locks instead of

[00:41:10] Speaker 05:
The private parties locks.

[00:41:12] Speaker 01:
I mean it might be you know, right again access Yeah, and I think in this case actually as to the locks My understanding what occurred is they there were locks that had changed the Border Patrol entered the property and cut locks because it needed to get onto the property it put on its own locks and the next day gave the keys to

[00:41:28] Speaker 01:
the Butterfly Association.

[00:41:32] Speaker 01:
I do think it would be reasonable to suggest that under patrolling you need to have access to the property and if access requires cutting locks then yes.

[00:41:42] Speaker 05:
What about like parking trucks across?

[00:41:44] Speaker 05:
I assume that's not something that you would defend as necessary to patrolling.

[00:41:49] Speaker 05:
parking trucks on their absolutely across so that they can actually use them.

[00:41:54] Speaker 01:
I don't know the context by which I assume is for their own protection.

[00:41:56] Speaker 01:
I don't know if there's if there's active.

[00:41:59] Speaker 05:
All I'm responding to is that is the photographs in the record of like three cars, three trucks parked across where nobody could then ingress or egress.

[00:42:08] Speaker 01:
I don't know exactly how the Border Patrol goes about detaining illegal crossings.

[00:42:12] Speaker 01:
I assume they have an interest in protecting the civilian population as well as those that may want to access the Butterfly Association and not providing access while detaining illegal immigrants might well be a perfectly reasonable thing to be doing.

[00:42:26] Speaker 04:
Has the Border Patrol for all these past decades under 1357 installed sensors on private land?

[00:42:33] Speaker 01:
The board of patrols, since at least the 50s and 60s, has installed sensors on private land.

[00:42:41] Speaker 01:
I'm not aware of that answer, Your Honor.

[00:42:42] Speaker 04:
Well, that's the question, right?

[00:42:43] Speaker 04:
What is the ordinary border patrolling of the border within the meaning of particular statutory provision addressing incursions onto private land?

[00:42:53] Speaker 04:
And so that's what I'm trying to understand.

[00:42:54] Speaker 04:
That's new.

[00:42:55] Speaker 01:
No, it's not new at all, Your Honor.

[00:42:58] Speaker 01:
Censors on private land is not new.

[00:43:00] Speaker 01:
I'm aware of litigation in other circuits by which people have brought claims against the government for the installation of sensors.

[00:43:07] Speaker 04:
And recent, I'm sorry, I just want to be clear, is that a recent innovation by the Border Patrol?

[00:43:12] Speaker 01:
Odomesse, I think, is the name of the case.

[00:43:14] Speaker 04:
I'd have to go look it up.

[00:43:15] Speaker 04:
Is this part of your decades of experience is what I'm trying to understand.

[00:43:17] Speaker 01:
The government has had to deal with sensors in other contexts on other properties.

[00:43:21] Speaker 04:
In other private properties.

[00:43:23] Speaker 01:
To my knowledge, yes, Your Honor, but I am not aware of, I can't provide you with a specific instance here.

[00:43:29] Speaker 05:
I have a couple of questions.

[00:43:31] Speaker 05:
On the, there's a provision in IRA, I think it's 102B2, that provides for a process for obtaining easements on private land.

[00:43:42] Speaker 05:
And do you know, is that the kind of thing that's used for something like sensor placement or?

[00:43:47] Speaker 05:
The ability, for example, to, you know, to widen the road and make sure that it's possible or things like that.

[00:43:55] Speaker 01:
Right.

[00:43:55] Speaker 01:
So there's the thing you're talking about the condemnation procedures by which you might go about the attorney general can negotiate with.

[00:44:03] Speaker 01:
a landowner may go about trying to figure out how you'd acquire something like an easement.

[00:44:09] Speaker 01:
That has not occurred in this case.

[00:44:11] Speaker 01:
The Butterfly Association has cited those provisions in its complaint in the context of its Fifth Amendment due process allegations.

[00:44:19] Speaker 01:
That's what it cited for process.

[00:44:20] Speaker 05:
I'm just trying to understand because you from the government can inform us on how this is sort of used in practice and whether that's, what are the kinds of

[00:44:32] Speaker 05:
access rights that you all think that's meant for.

[00:44:37] Speaker 01:
I would assume that if the government were interested in perhaps a permanent easement, then that might be something that they would be able to seek under those provisions, but that has not occurred here.

[00:44:51] Speaker 05:
Let me ask you about the Fourth Amendment claim.

[00:44:54] Speaker 05:
If the government had wanted to, let's say, exercise forfeiture authority over the butterfly farm as the property in James Daniel Goode, would that, under your textual reading of the Fourth Amendment, would that not be covered?

[00:45:12] Speaker 05:
It's not a private home.

[00:45:15] Speaker 01:
Does it contain a private home?

[00:45:17] Speaker 01:
Again, to your point, Your Honor, I think this was raised earlier, maybe Judge Millett, but you were asking about what's the difference between a Fourth Amendment claim and a Fifth Amendment claim, and traditionally when we're talking about

[00:45:28] Speaker 01:
The seizure, which is the James, which in that case actually did fall under the Fifth Amendment.

[00:45:32] Speaker 01:
So yes, the Supreme Court talks a bit about the forfeiture and under the fourth.

[00:45:37] Speaker 01:
I know I understand, but certain times you can have situations where perhaps you may see some overlap with the court ultimately in that case and

[00:45:43] Speaker 01:
Butterfly Association acknowledges that was ultimately a Fifth Amendment case.

[00:45:47] Speaker 01:
So if you do have a situation where we've got a complete deprivation of property, then you might have a Fifth Amendment takings claim or some sort of other Fifth Amendment claim that you might be able to bring.

[00:45:57] Speaker 01:
They've never sought that in this case.

[00:46:00] Speaker 01:
In their reply brief, they've made clear, we are not seeking a taking.

[00:46:04] Speaker 01:
So to the extent that they believe that we've interfered with their property or that we've somehow deprived them of their property rights, naturally you would think that they'd be bringing a takings claim, which they have not.

[00:46:13] Speaker 05:
And they've- Well, they're arguing for process.

[00:46:15] Speaker 01:
Right.

[00:46:16] Speaker 05:
Which is, so they're sort of saying it's not about condemnation, it's about whether you've done any process before you attach and cut and intrude and those kinds of things.

[00:46:27] Speaker 05:
But the reason I was asking about the forfeiture is, and I think it may be that this isn't

[00:46:32] Speaker 05:
that vividly presented in this case because they're not claiming, for example, that they didn't enact pursuant to a warrant or there wasn't that kind of process and it's not being used or forfeited as evidence of a crime.

[00:46:48] Speaker 05:
I'm just thinking about how we would reason over this without eliminating some very important

[00:46:57] Speaker 05:
avenue that might be useful in a different case.

[00:47:02] Speaker 01:
I take your point.

[00:47:04] Speaker 01:
I understand it might seem harsh to call a butterfly botanical garden an open field that does not.

[00:47:12] Speaker 05:
I'm just questioning probing how much the open field doctrine applies

[00:47:16] Speaker 05:
Not in the search context, but in the seizure.

[00:47:18] Speaker 01:
Right, so let's back up one second there.

[00:47:21] Speaker 01:
I think, and we made this point, they are conflating the nature of their property with the doctrine itself.

[00:47:26] Speaker 01:
So yes, there is an open fields doctrine, and there's plenty of case law on what is considered to be an open fields doctrine.

[00:47:31] Speaker 01:
And I will admit that plenty of cases have talked about that as a search doctrine.

[00:47:35] Speaker 01:
I think my argument is more of a textual nature and one that adheres to the Supreme Court's precedent.

[00:47:41] Speaker 01:
in describing the nature of the property and the property interest that the Fourth Amendment protects.

[00:47:47] Speaker 01:
So those are the whole line of cases that it's like houses, papers, effects, open fields, you're not one of those things.

[00:47:53] Speaker 01:
This goes back to Blackstone.

[00:47:54] Speaker 01:
You fall outside of the curtilage, you're in an open field.

[00:47:56] Speaker 01:
So that line of cases is different from the open fields doctrine, which I can see has been used primarily as search.

[00:48:04] Speaker 05:
But it also hasn't really been probed in the context of real property.

[00:48:08] Speaker 05:
And there are things like cars that don't go back to Blackstone.

[00:48:12] Speaker 01:
Right, but even the cases that they talk about, I mean, the Presley and the Severance case, I mean, the Fourth Circuit recognized that the protections of the Fourth Circuit may not extend beyond the curtilage.

[00:48:23] Speaker 01:
And they specifically say that in their case.

[00:48:25] Speaker 01:
So, you know, the cases that they're relying on suggest... So, could you set up video cameras?

[00:48:29] Speaker 04:
Could you set up video cameras across the... Maybe you're sensitive to how you do that.

[00:48:34] Speaker 01:
Yes, I believe that on one of the things that were listed, it was lighting,

[00:48:40] Speaker 04:
So your theory, it's the open fields doctrine which arose in a context of generally entries and doesn't just keep on going even as technology evolves and so the government could send up all kinds of recording devices in my backyard which is outside my curtilage and leave them there.

[00:49:01] Speaker 04:
As long as you move them around so it's not a permanent take.

[00:49:03] Speaker 01:
I think your backyard is quite different from a botanical garden on the international border of the United States.

[00:49:09] Speaker 04:
It's not my curtilage.

[00:49:11] Speaker 01:
It may well be, Your Honor, and that's the point.

[00:49:13] Speaker 04:
So in the Severance case, the Pressley case... Assume I got a good-sized big backyard.

[00:49:19] Speaker 04:
I'm not aware of what the size of your backyard is, but I mean, if it's a 100-acre botanical garden on the border of... No, you just argued curtilage and house, and so I don't know how far out you think curtilage goes, but assume we are a foot outside the curtilage.

[00:49:36] Speaker 04:
Is your view that the Open Fields Doctrine, as is so far explicated by Supreme Court in some older cases that weren't dealing with technology, doesn't factor in at all the nature of the governmental intrusion on private property?

[00:49:53] Speaker 01:
My view, Your Honor, has been articulated by Oliver Hester Jones, Don

[00:49:59] Speaker 01:
These are several cases that the Supreme Court has in fact held that the Fourth Amendment does not protect open fields.

[00:50:04] Speaker 04:
But the nature, and maybe the issue here is they're arguing seizure, not search.

[00:50:08] Speaker 04:
That may be the answer here.

[00:50:09] Speaker 04:
But to be clear, the president for a very long time said that people don't have any private interest in their movement on public roads.

[00:50:16] Speaker 04:
But then when technology was used through GPS monitoring in the Jones case to collect way more information

[00:50:24] Speaker 04:
about people, the Supreme Court said, hang on, that's different.

[00:50:28] Speaker 04:
And so the question is, is what's being done here different than what prior open fields cases recognize?

[00:50:36] Speaker 04:
Maybe it's more a search problem than a seizure one.

[00:50:38] Speaker 01:
We haven't even talked about privacy.

[00:50:39] Speaker 01:
So there's the property approach and there's the privacy approach.

[00:50:41] Speaker 01:
Your Honor was absolutely right.

[00:50:43] Speaker 01:
These are different things.

[00:50:44] Speaker 01:
And they've cited cases where open fields were turned up.

[00:50:47] Speaker 01:
They were dug up.

[00:50:48] Speaker 01:
Those are privacy interests.

[00:50:49] Speaker 01:
Hotel rooms, telephone booths.

[00:50:51] Speaker 01:
And then at the same time they're saying, well, no, privacy plays no role here.

[00:50:54] Speaker 01:
But those are privacy.

[00:50:56] Speaker 01:
I view it as two separate things.

[00:50:58] Speaker 01:
There's the property line of cases, and there's the privacy line of cases.

[00:51:01] Speaker 01:
And when we're in the cats world,

[00:51:02] Speaker 01:
it is a different world, Your Honor, and absolutely, it's all about reasonableness.

[00:51:06] Speaker 01:
And so, and legitimate expectations of privacy.

[00:51:08] Speaker 01:
And our argument, we made two arguments in our brief.

[00:51:10] Speaker 01:
One is explaining the property-based approach, and the other is explaining the privacy-based approach.

[00:51:14] Speaker 01:
So under the privacy-based approach, you might well have a situation where, and they've cited a case from, I think it's the Fifth Circuit, where they were turning up the earth, right?

[00:51:23] Speaker 01:
Well yes, you may in fact have a privacy interest in the ground underneath your open field.

[00:51:28] Speaker 01:
That's totally different

[00:51:30] Speaker 01:
than what's going on here.

[00:51:31] Speaker 01:
And they've never alleged anything near the sort of that.

[00:51:34] Speaker 01:
And those activities have not occurred on their property.

[00:51:37] Speaker 01:
None of those things are occurring in this case.

[00:51:40] Speaker 01:
So they've actually fought us on privacy.

[00:51:44] Speaker 01:
And I take their point.

[00:51:45] Speaker 01:
We agree.

[00:51:46] Speaker 01:
Their privacy interests have not been impacted here.

[00:51:49] Speaker 01:
As to the reasonableness of government intrusion, and this is important,

[00:51:53] Speaker 01:
Whether you call this a search, whether you call this a seizure, this is the border.

[00:51:56] Speaker 01:
This is the border of the international border with Mexico.

[00:51:58] Speaker 01:
There's a number of cases that we've cited from the Supreme Court and other circuits recognizing the sovereign interest of the United States to protect its border from illegal crossings.

[00:52:07] Speaker 01:
And so to the extent that some of these intrusions have occurred, they've occurred under statutory authority, and they were reasonable under the Fourth Amendment.

[00:52:15] Speaker 03:
Last question.

[00:52:17] Speaker 03:
I just want to be sure.

[00:52:18] Speaker 03:
Government's position is that the appropriations rider moots

[00:52:22] Speaker 03:
the NEPA endangered species, all construction related claims, right?

[00:52:28] Speaker 01:
We agree with the assessment that they've put forth, which is there are no current activities contemplated.

[00:52:35] Speaker 01:
The government is not doing anything right now on their property and there are no clear plans.

[00:52:40] Speaker 05:
That's a little clever the way that you quoted them in the brief.

[00:52:44] Speaker 05:
I mean, they are claiming that there are a lot of current intrusions and unremedied intrusions.

[00:52:51] Speaker 01:
Yes, and so I want to unpack this a little bit.

[00:52:56] Speaker 01:
The appropriations writer talks about pedestrian fencing.

[00:52:59] Speaker 01:
The language of the statute says that no funds shall be used to construct pedestrian fencing.

[00:53:04] Speaker 01:
It lists five specific locations, one of which is, you know, the Butterfly Center.

[00:53:09] Speaker 01:
So there will be no pedestrian fencing constructed on their property.

[00:53:13] Speaker 04:
What's pedestrian fencing mean?

[00:53:15] Speaker 01:
I believe it means what it says.

[00:53:17] Speaker 01:
I don't know what it means.

[00:53:18] Speaker 01:
It's a sort of fence that prevents people from entering.

[00:53:21] Speaker 04:
Okay, so that would not include installation of sensors?

[00:53:26] Speaker 01:
So that's the question, Your Honor, and I think that as of right now, as of right now, under the authority, under the waiver that was issued by the Secretary, the government is not doing any activities associated with the waiver of legal requirements, the installation of some of the things that it talks about.

[00:53:43] Speaker 01:
We can talk about centers in the context of the 1350.

[00:53:46] Speaker 01:
That's a difference.

[00:53:47] Speaker 01:
So these are two separate authorities, and I want to be clear on this.

[00:53:50] Speaker 01:
The 1358 authority is the patrol authority, and that's customary and reasonable.

[00:53:53] Speaker 01:
So that was, we talked about that in the context of the Fourth Amendment.

[00:53:56] Speaker 01:
That also provides authority for the government to do things like patrol the border, enter their property within 25 miles of the border.

[00:54:01] Speaker 01:
And it may well include the installation of sensors that are not permanent that are taken up.

[00:54:06] Speaker 01:
So that's a separate authority.

[00:54:07] Speaker 01:
Right.

[00:54:08] Speaker 04:
I just want to focus on the Appropriations Act because it draws a distinction between the funds appropriated for pedestrian fencing and the funds appropriated for border security technologies.

[00:54:18] Speaker 04:
Yes.

[00:54:20] Speaker 04:
And to the extent that their claims

[00:54:26] Speaker 04:
involve, are you willing to state for the position of the United States that none of the intrusions identified either in their complaint or the declarations fall under the category of border security technologies?

[00:54:45] Speaker 04:
It's all pedestrian fencing?

[00:54:48] Speaker 01:
I'm not sure that I can agree with that, Your Honor.

[00:54:52] Speaker 04:
Right, that's what I assumed would be your position, so then I don't know how you can argue it moots.

[00:54:57] Speaker 04:
I don't know how you can argue it moots their claims.

[00:55:00] Speaker 01:
Because I looked at their complaint, and their complaint talks about border wall construction.

[00:55:04] Speaker 01:
Their complaint talks about preparation activities associated with construction of the whole wall.

[00:55:07] Speaker 04:
It talks about widening roads, it talks about sensors, and it talks about locking gates.

[00:55:12] Speaker 01:
You need to have an imminent threat of injury here, and on this record, given their view of this appropriations act, what they are saying, it has mooted their claims.

[00:55:21] Speaker 05:
Is there any case, but that, Mr. Beeler, that doesn't make sense.

[00:55:24] Speaker 05:
So you've done this in your brief on page 30, on page 31, on page 51, and you say in fact, it's clear the claim's not right.

[00:55:31] Speaker 05:
because Congress enacted the Appropriations Act, which the Association views as a complete prohibition of construction of a wall.

[00:55:38] Speaker 05:
And they view that as prohibition, but they think that you're violating it because you, as you're demonstrating by the way you're answering questions here today, you view it as placing a much narrower prohibition, perhaps with legal support, as Judge Millett is pointing out, because

[00:55:55] Speaker 05:
It's only prohibiting construction, not border security activities.

[00:55:59] Speaker 05:
So to the extent border security activities are still CBP's prerogative, then there's an issue joined about whether they're patrol activities or whether in fact there needs to be some kind of easement or some kind of pre-entry process.

[00:56:14] Speaker 05:
in order to effectuate them.

[00:56:16] Speaker 05:
I think that's fair, and tell me why you don't.

[00:56:20] Speaker 01:
I'm just sticking to the language of the statute, Your Honor, and I don't mean to try to dodge the question.

[00:56:25] Speaker 01:
The language of the statute says pedestrian fencing, you're right, Judge Malette.

[00:56:28] Speaker 01:
It talks about technologies, and that has not been prohibited under the language of that statute.

[00:56:33] Speaker 04:
So we would have to resolve that statutory question before we could determine whether the case is moot.

[00:56:39] Speaker 01:
I think you need to resolve under Article 3 whether they have alleged and are alleging an imminent threat of injury.

[00:56:45] Speaker 01:
And our argument in our brief is, given their views and the claims that they've asserted, the allegations that they've brought forth, that the Appropriations Act in essence has mooted those claims.

[00:56:57] Speaker 04:
Well, are you aware of any case where we have found mootness based on

[00:57:02] Speaker 04:
the argument you're doing here where someone says here's what we think a statute means and if we win we're taken care of and the government comes in and says we are not agreeing with your interpretation of the statute.

[00:57:16] Speaker 04:
We are not agreeing with your interpretation of the statute but nevertheless you should declare it moot without resolving

[00:57:22] Speaker 04:
That statutory construction question?

[00:57:25] Speaker 04:
I've never seen a case like this.

[00:57:26] Speaker 01:
No, I mean, I'm relying on Clapper.

[00:57:28] Speaker 01:
I mean, Clapper tells you, Your Honor, that you have to have an immediate injury.

[00:57:31] Speaker 01:
They sought an injunction.

[00:57:33] Speaker 01:
That's the relief they sought.

[00:57:35] Speaker 01:
They sought an injunction from the district court that would prevent the construction of a border wall.

[00:57:40] Speaker 04:
And they view the appropriations act... I'm sorry.

[00:57:42] Speaker 04:
No, so they have... Oh, there's a question of what you mean by construction of a border wall.

[00:57:47] Speaker 04:
They've got concerns about more than just

[00:57:52] Speaker 04:
If the border wall is pedestrian fencing, and all of these things are vague terms, that's one thing.

[00:57:59] Speaker 04:
But if what is meant by the border wall could be fences, could be barriers, could be other forms of border security technologies, then it's not moot.

[00:58:11] Speaker 01:
Okay, I'm going off of their allegation.

[00:58:13] Speaker 01:
When you read their complaint, your honor, these are not the kinds of concerns that they've raised.

[00:58:17] Speaker 04:
Well, they do raise these other things, but you came forward with a jurisdictional argument to us about mootness.

[00:58:23] Speaker 04:
The government did.

[00:58:24] Speaker 04:
Yes.

[00:58:25] Speaker 04:
And it just struck me, at least, I can only speak for myself, quite odd to see the government come in and make an argument that it's moot, not based on the complaint, but if they're right on the law, it's moot.

[00:58:36] Speaker 04:
But we're not saying they're right on the law.

[00:58:38] Speaker 04:
That's how I understood your mootness argument.

[00:58:40] Speaker 01:
I think we might be talking past one another here, Your Honor, and I apologize for that.

[00:58:44] Speaker 01:
It was more of a context of they lacked standing to get the injunction that they sought.

[00:58:49] Speaker 01:
So Summers tells you that you can't get an injunction.

[00:58:53] Speaker 01:
So that if you read, and maybe it's, and I should have been more clear on this, the mootness argument is due to standing to the relief that they're seeking.

[00:59:01] Speaker 01:
The relief that they're seeking is an injunction preventing a border fencing wall, whatever you want to call it.

[00:59:08] Speaker 01:
They cannot receive that relief.

[00:59:10] Speaker 01:
because it's no longer available to them.

[00:59:12] Speaker 01:
It's done.

[00:59:13] Speaker 01:
It's been mooted.

[00:59:13] Speaker 01:
The appropriations bill, there's no construction that's going to occur on the property.

[00:59:17] Speaker 01:
They say that.

[00:59:18] Speaker 01:
We are not doing anything.

[00:59:20] Speaker 01:
There's no imminence of harm.

[00:59:21] Speaker 01:
There's no, Clapper tells you that they have, the only way they can get this injunction to prevent the government from going forward with these things is if they have.

[00:59:29] Speaker 04:
But if you assert the authority and you're just not doing it now, you've stopped for a little while.

[00:59:35] Speaker 04:
That's just capable of repetition, or it's voluntary cessation that could be vied.

[00:59:41] Speaker 01:
These are arguments that they may have raised in their reply brief and they chose not to, Your Honor.

[00:59:45] Speaker 04:
Well, do you think it's moot them or not, given the existence of those theories?

[00:59:49] Speaker 01:
Your Honor, I think there is no imminent

[00:59:52] Speaker 04:
Is there any risk that whatever the current temporary cessation of activities is that they will, are you telling me that there is no reasonable risk that those will recur in the future?

[01:00:05] Speaker 01:
The Butterfly Association yourself stood here and said that it can't predict.

[01:00:08] Speaker 04:
I'm asking you what the government's position is about.

[01:00:10] Speaker 01:
I have no way of knowing what Congress will appropriate for funding.

[01:00:13] Speaker 04:
I'm talking about appropriations.

[01:00:14] Speaker 04:
I'm talking about whether if you have ceased things that in your mind, in the government's mind,

[01:00:19] Speaker 04:
We personally, border security technologies.

[01:00:23] Speaker 04:
It seems to be unresolved issues and important ones if there are border security technologies measures that the government would argue don't fall within the appropriations limitation.

[01:00:35] Speaker 04:
But they may be stopped right now for all kinds of reasons.

[01:00:39] Speaker 04:
But if the government is not representing that it has no intention of resuming them any time

[01:00:46] Speaker 04:
any of these activities, whether called board or security technologies or pedestrian fencing, in the foreseeable future, then that's a different, that's an important

[01:00:55] Speaker 04:
statement by the government that would weigh into a mootness analysis.

[01:00:59] Speaker 04:
But I hadn't heard you making that representation.

[01:01:01] Speaker 01:
All I can say is we're not doing anything right now under that authority, Your Honor.

[01:01:04] Speaker 04:
But you can't say whether it would change.

[01:01:06] Speaker 01:
I cannot predict the future, and that's the point.

[01:01:08] Speaker 01:
That's the whole point of Clapper.

[01:01:10] Speaker 01:
It's too speculative.

[01:01:11] Speaker 01:
It is too speculative to establish standing to support an injunction preventing the government from proceeding.

[01:01:16] Speaker 01:
That's what Clapper tells you, Your Honor.

[01:01:20] Speaker 01:
We ask that you dismiss for lack of jurisdiction, to the extent that you do reach the merits of the claim to ask you to affirm the judgment in favor of federal police.

[01:01:29] Speaker 03:
Thank you.

[01:01:30] Speaker 03:
Mr. Beacon, you are out of time.

[01:01:31] Speaker 03:
You can take three minutes.

[01:01:32] Speaker 02:
Thank you, Your Honor.

[01:01:37] Speaker 03:
Why don't you just start with this question right now, the appropriations bill, the writer.

[01:01:44] Speaker 03:
What's your reaction to what you just heard?

[01:01:48] Speaker 02:
It confirms that we don't know what's going to happen.

[01:01:50] Speaker 02:
The government hasn't been transparent.

[01:01:52] Speaker 02:
If they said, no, we interpret the Rider on Appropriations Bill as precluding us from building any infrastructure on your property right now, that would put us into a situation where we don't.

[01:02:05] Speaker 03:
As I understand the government's position, it is that they look at your complaint or your brief and they say, you say that in enacting the Rider,

[01:02:14] Speaker 03:
intended to protect the Butterfly Center from all forms of new construction, including walls, barriers, roads, enforcement zones, and artificial lighting.

[01:02:22] Speaker 03:
That's what they say.

[01:02:22] Speaker 03:
You say it is.

[01:02:24] Speaker 03:
So the government says, well, that's what the plaintiffs themselves say it does.

[01:02:32] Speaker 03:
And it's moved under the appropriations bill.

[01:02:36] Speaker 02:
That's their position.

[01:02:42] Speaker 02:
I think it's a little bit tough because they haven't taken a position about what they interpret the statute to be.

[01:02:48] Speaker 02:
All they're saying is, well, plaintiffs say, but I think that they need to take a stand on this.

[01:02:53] Speaker 04:
Paragraph 8 of your complaint, the claim for relief, asks for a broader injunction against conducting any further activities at the Butterfly Center.

[01:03:02] Speaker 04:
It's not just wall building.

[01:03:04] Speaker 02:
Yes, Your Honor.

[01:03:05] Speaker 02:
And that goes back to the part of our complaint that's about activities that were occurring and had occurred prior to us filing suit.

[01:03:19] Speaker 05:
And as to those activities, the relief you seek is declaratory relief.

[01:03:23] Speaker 05:
And as to prospective or current intrusions, you seek process.

[01:03:29] Speaker 05:
In addition to the substantive due process claim, but just looking at the procedural due process claim, where they've already done things, fait accompli.

[01:03:38] Speaker 02:
We saw the declaration.

[01:03:39] Speaker 05:
And where there are things ongoing, intrusions ongoing.

[01:03:44] Speaker 02:
Yes, Your Honor.

[01:03:45] Speaker 05:
You seek process and future?

[01:03:48] Speaker 02:
We seek, well, we seek injunction.

[01:03:49] Speaker 02:
The injunction is, it's under the due process claim, the injunction is A, anything that you could legitimately do, that you have authority to do, we need process for that.

[01:04:01] Speaker 02:
And B, for the things that violate substantive due process, you have to stop.

[01:04:09] Speaker 05:
And the things that are currently ongoing,

[01:04:15] Speaker 05:
Include?

[01:04:16] Speaker 02:
Include the Border Patrol continuing to be on the property doing things that are apparently not patrolling.

[01:04:23] Speaker 03:
And I'm- Be more specific about that.

[01:04:26] Speaker 03:
What are they doing on the property now?

[01:04:30] Speaker 02:
Yesterday, there were two agents on the property.

[01:04:33] Speaker 02:
They were sitting in a car.

[01:04:36] Speaker 02:
We don't know.

[01:04:36] Speaker 02:
No, I'm sorry.

[01:04:37] Speaker 02:
They were not agents.

[01:04:38] Speaker 02:
There were two individuals in plain clothes sitting in a car.

[01:04:41] Speaker 02:
We didn't know what they're doing, but they're on Butterfly property.

[01:04:43] Speaker 02:
They're just sitting there.

[01:04:44] Speaker 02:
Butterfly Center called the police.

[01:04:46] Speaker 02:
The police caught up with these people and it turns out these people are

[01:04:52] Speaker 02:
contractors of the government sitting on novice property doing we don't know what but we don't think they're patrolling because we think that's the border patrols job and so and that is just one instance that we've continued to have instances of novice staff and guests being told they can't access parts of the property.

[01:05:15] Speaker 04:
What is the procedural due process you want for something like that?

[01:05:20] Speaker 02:
Your Honor, if I may, I think, let me answer your question in two ways.

[01:05:25] Speaker 02:
First of all, we think that the procedural due process is they should reach out to us to seek our consent, and if they can't get our consent, then we need notice and an opportunity to be heard.

[01:05:35] Speaker 05:
Is that 1103B?

[01:05:37] Speaker 05:
Is that the process you're speaking of?

[01:05:39] Speaker 02:
A bigger pardon?

[01:05:39] Speaker 05:
The 1103B process under 8 USC 1103B, which directs the Attorney General to negotiate with landowners before initiating any

[01:05:49] Speaker 05:
Condemnation or is that but that's a condemnation.

[01:05:51] Speaker 02:
No, no, no, I'm sorry.

[01:05:53] Speaker 02:
No, we're seeking we're seeking We're talking about them coming onto the land and asserting control that is above and beyond the patrol power Sitting in a car is above and beyond patrol power.

[01:06:06] Speaker 02:
I beg your pardon.

[01:06:07] Speaker 04:
I'm not sure sitting in a car is above and beyond the patrol power By people who are not border patrol.

[01:06:13] Speaker 04:
I'm sorry this so this as to this patrolling activity

[01:06:19] Speaker 04:
You say this has been going on for decades.

[01:06:21] Speaker 04:
Have you been getting, in the past have you always had notice when they're coming on to patrol?

[01:06:25] Speaker 04:
Or is this just because it's contractors?

[01:06:28] Speaker 02:
No, in the past we have not had notice when they come on to patrol, not always.

[01:06:32] Speaker 02:
Sometimes they've come on to the property because the Butterfly Center has called them and said we think that there's an illegal border crossing happening and the border patrol has come on in those circumstances.

[01:06:42] Speaker 02:
But no, they have not always given us notice when they come on to patrol.

[01:06:45] Speaker 02:
Anything else?

[01:06:46] Speaker 05:
But your position is that these people are likely construction contractors, not border patrolling contractors.

[01:06:53] Speaker 02:
That's what the police told us when they came back.

[01:06:57] Speaker 04:
Are your roads not open to the public?

[01:06:59] Speaker 02:
I beg your pardon?

[01:06:59] Speaker 04:
I thought your roads were sort of open to the public.

[01:07:03] Speaker 02:
our roads are open to visitors to the butterfly center.

[01:07:06] Speaker 02:
I mean, that's a, that's different from, we have roads across that are, you know, we let people drive on for any reason at all.

[01:07:16] Speaker 02:
There are two different things.

[01:07:17] Speaker 02:
There are roads that are publicly accessible because it's a public

[01:07:25] Speaker 02:
it's a it's a it's a any the butterfly center is for the public to come visit uh... but it's not just wanted to look at the butterflies maybe the contractors wanted to look at the butterflies then come to that they they didn't

[01:07:40] Speaker 02:
They didn't come through the Butterfly Center.

[01:07:44] Speaker 02:
I mean, there's an entrance fee.

[01:07:49] Speaker 02:
They don't pay that.

[01:07:50] Speaker 02:
Anything else?

[01:07:54] Speaker 02:
I know my light is out.

[01:07:55] Speaker 03:
Just make one point.

[01:07:57] Speaker 03:
That's it.

[01:07:57] Speaker 03:
Go ahead.

[01:08:01] Speaker 02:
I think the Donovan case, Your Honor, that we cited in our brief shows that the Supreme Court has gone beyond its concern for the four categories.

[01:08:12] Speaker 02:
CAT says they're not a talismanic answer to every Fourth Amendment question.

[01:08:18] Speaker 02:
Donovan, it's an agency that has the power to inspect surface mines and quarries.

[01:08:24] Speaker 02:
They're open.

[01:08:25] Speaker 02:
They're right on the surface of the ground.

[01:08:27] Speaker 02:
And the court finds that that inspection is reasonable under the Fourth Amendment.

[01:08:32] Speaker 02:
It doesn't find the Fourth Amendment doesn't apply.

[01:08:34] Speaker 02:
It finds that it does apply and that it's reasonable.

[01:08:38] Speaker 02:
And there's no way to reconcile Donovan with the four categories except to say, you know, that level of interest rises to the same level as the others.

[01:08:48] Speaker 02:
If you do the same thing with Zessary interests,

[01:08:51] Speaker 02:
fee simple absolute, that is as strong a possessory interest as our society knows.

[01:08:57] Speaker 02:
And so it simply doesn't make sense to say that real property's not covered and the courts have not taken that position.

[01:09:07] Speaker 03:
Thank you.

[01:09:08] Speaker 03:
Thank you, Your Honor.

[01:09:09] Speaker 03:
The case is submitted.