Debevoise Prevails in DC Circuit Court in Border Wall Dispute Involving the North American Butterfly Association

23 October 2020

Debevoise & Plimpton LLP has prevailed in a 2-1 victory in the U.S. Court of Appeals for the District of Columbia Circuit on behalf of the North American Butterfly Association (NABA). The ruling reversed the U.S. District Court for the District of Columbia’s dismissal of an action brought by Debevoise in 2017 against the Secretary of Homeland Security, which had challenged government activity related to the construction of a US-Mexico border wall on NABA’s 100 acre National Butterfly Center.

NABA had argued that construction of the proposed wall along the southern border would cut off two-thirds of NABA’s property without regard for the environmental impact, effectively destroying the Butterfly Center, and that government activity on the Center was violating NABA’s constitutionally protected property rights under the Fourth and Fifth Amendments. In February 2019, the District Court dismissed NABA’s environmental claims with prejudice, but dismissed the constitutional claims without prejudice, allowing to NABA to replead them. NABA chose to appeal instead, as soon as the time allowed for repleading had expired.

The DC Circuit heard argument in December 2019 and issued its decision on October 13, 2020.

The Court’s opinion features two significant rulings upholding its jurisdiction. The Court rejected the Secretary’s contention that a provision of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) that strips the federal Circuit Courts of Appeal of jurisdiction over appeals of claims arising from certain acts of the Secretary applied here, because the claims were filed months before the Secretary acted. The Court also ruled that the judgment was final for purposes of appellate jurisdiction once the time allotted to replead had passed. On the merits, the Court reversed the dismissal of NABA’s Fifth Amendment claim, upholding the right of property owners along the border to sue for government intrusions on their property rights. After the time for rehearing expires, the matter will be remanded to the District Court for further proceedings.

NABA owns and operates the National Butterfly Center (NBC), a 100-acre conservation, education and research center in Mission, Texas. NABA has transformed what was an agricultural field, when acquired by NABA in 2002, into a botanical garden featuring native habitats that include numerous endangered plant and animal species. More than 220 species of wild butterflies have now been seen at the NBC.

The Debevoise team is led by counsel and managing attorney Timothy Beeken and includes associates Emily Hush, Mark McLennan, Nathan Noh and Adrian St. Francis as well as case manager Darevia Williams.