Due Process for Butterflies in the D.C. Circuit
This morning the U.S. Court of Appeals for the D.C. Circuit, in North American Butterfly Association v. Wolf, revived the North American Butterfly Association’s Fifth Amendment Due Process claim against the Department of Homeland Security for intruding upon a wildlife sanctuary along the U.S.-Mexico border. Dismissal of the NABA’s other claims, however, was affirmed.
Judge Pillard wrote for the court’s majority, joined by Judge Tatel. Judge Millett dissented. Judge Pillard’s majority summarized the case as follows:
The National Butterfly Center, a 100-acre wildlife sanctuary and botanical garden owned by the nonprofit North American Butterfly Association, lies along the border between the United States and Mexico. Butterfly Center staff discovered in 2017 that a segment of the wall the U.S. Department of Homeland Security (DHS) plans to build on the border with Mexico would run through the Center’s premises. After DHS confirmed that plan and asserted control over parts of the Center, the Butterfly Association sued.
The Association contends that DHS’ presence on and use of parts of its property to prepare for and carry out construction of a border wall violate the Fourth and Fifth Amendments to the United States Constitution and two environmental statutes. The district court dismissed all claims, concluding the Association stated no viable constitutional claim and that section 102(c)(2)(A) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, 110 Stat. 3009, 3009-546, as amended (IIRIRA) (codified at 8 U.S.C. § 1103), strips jurisdiction over the statutory claims because the DHS Secretary waived application of environmental laws with respect to the construction of roads and physical barriers to be built at the Center. See N. Am. Butterfly Ass’n v. Nielsen, 368 F. Supp. 3d 1, 4 (D.D.C. 2019). We affirm dismissal of the Butterfly Association’s statutory and Fou
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