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Butterfly sanctuary gets second chance to challenge border wall

A divided D.C. Circuit panel ruled Tuesday that border wall construction in South Texas interferes with the rights of butterfly conservation advocates, reinstating a challenge to a stretch of wall along the Rio Grande.

In a 2-1 opinion, the appeals court partially sided with the North American Butterfly Association in a lawsuit against the federal government following a decision to build part of the border wall through the National Butterfly Center in Mission, Texas, which is home to over 100 wild butterfly species. Some of the species inside the center’s 100-acre wildlife sanctuary and botanical garden are considered threatened or endangered.

Reversing a federal judge’s February 2019 decision, the three-judge panel’s majority revived the association’s claim of Fifth Amendment violations based on the Department of Homeland Security’s “allegedly unauthorized occupation and use of the Butterfly Association’s land.”

According to Tuesday’s ruling, the association alleges that Customs and Border Protection “asserted control over the National Butterfly Center by entering, maintaining a regular presence on, and taking charge of areas of the center without notice to or consent from the association.”

The association claims that Customs and Border Protection entered and damaged its property while preparing for and starting to construct the border wall.

The government is accused of installing sensors at the center to detect above-ground activity, widening private roadways on the property, cutting down trees and threatening to destroy private gates and locks.

Writing for the majority in Tuesday’s opinion, U.S. Circuit Judge Nina Pillard said the government did not establish that its statutory authority to enforce border security on private property allows for the intrusions alleged by the center.

“DHS provides no authority that installing multiple sensors on private property without advance notice or the landowner’s consent counts as a ‘customary[] or reasonable and necessary’ activity of ‘patrolling the border’ to prevent unauthorized immigration,” wrote Pillard, a Barack Obama appointee.

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The panel’s majority, however, rejected the center’s claims alleging unreasonable seizure of property it acknowledges to be “open fields” and accusing the government of violating the National Environmental Policy Act and Endangered Species Act.

The court heard oral arguments in the case in December.

U.S. Circuit Judge David Tatel, a Bill Clinton appointee, joined Pillard in the majority opinion.

In a 30-page dissent, U.S. Circuit Judge Patricia Millett, another Obama appointee, disagreed that the court has jurisdiction over the appeal. The judge reasoned that the district court’s dismissal of the complaint was not final.

“As I see it, there simply is no way to read the district court’s order expressly inviting the Butterfly Association both to amend its complaint and to again seek injunctive relief from the court as the district court denying all relief or otherwise conclusively washing its hands of the case,” Millett wrote.

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Mallory Price/Cronkite News

The North American Butterfly Association filed a lawsuit against the federal government following a decision to build part of the border wall through the National Butterfly Center in Mission, Texas, which is home to over 100 wild butterfly species.