Debevoise Debevoise Plimpton LLP . 919 Th' AV New Yciik Niliogzz +1 212 909 6000 October 4, 2017 The Honorable Elaine C. Duke Jim Kurth Secretary (Acting) Director (Acting) United States Department of Homeland Security United States Fish and Wildlife Service Washington, DC. 20528 1849 Street, N.W. Washington, .C. 20240 Kevin K. McAleenan Commissioner (Acting) United States Customs and Border Patrol 1300 Ave. N.W. Washington, DC. 20229 Manuel Padilla, Jr. Chief Patrol Agent, Rio Grande Valley Sector United States Customs and Border Patrol 4400 South Expressway 281 Edinburg, TX 78542 Sent via Certi?ed Mail Notice of Violations of Environmental and Constitutional Laws Dear Secretary Duke, Director Kurth, Commissioner McAleenan, and Chief Padilla: We represent the North American Butter?y Association On its behalf, we are providing you notice that the Department of Homeland Security and its component agency US. Customs and Border Protection (collectively, ?the Agencies?) are in violation of the National Environmental Policy Act and the Endangered Species Act This letter additionally provides notice of unconstitutional takings caused by the Agencies? unannounced and unauthorized interference with property, as well as consistent harassment of employees and visitors on the basis of protected status. 42 use. 4321 etseq. 3 16 1531 et seq. As part of its activities, NABA owns and operates the National Butter?y Center (the in Mission, Texas. In July 2017, Marianna Wright, Executive Director of the NBC, discovered CBP contractors widening a roadway on NABA property; elsewhere in the property, she discovered surveyor ?ags. She quickly contacted CBP, which first denied its involvement and then asserted its blanket authority for the invasion. Manuel Padilla, Chief Patrol Agent for the Rio Grande Valley Sector of CBP, told Ms. Wright that a proposed ?border wall? would be built through NABA property. He added that additional large areas of the NBC would be cleared for secondary roads and government operations. Moreover, Chief Padilla admitted that ?sensors? had been placed throughout the NBC. He would not disclose their type or location. NABA demands that the Agencies immediately cease preparation and construction on NABA property; engage in consultations with NABA regarding agency entrance and activity on NABA property; and cease discriminatory conduct against employees and individuals, as well as provide appropriate remedies therefor. This notice is not required for NEPA and constitutional claims. NABA issues this notice with a full reservation of rights, including the right to amend, update, modify, supplement, or otherwise revise this notice in any respect at any time. The issue of this notice is not a waiver or release of any of rights against any person, entity, or property, and this notice does not encompass all claims that NABA may have, arising either before or after the issue of this notice. I. Background NABA is a New York State nonprofit 501(c)(3) organization headquartered in Morristown, New Jersey, whose mission is to conserve butterflies and their habitats. NABA owns and operates the NBC. The 100-acre NBC is the premier place in the United States to see and learn about wild butter?ies. It is visited by tens of thousands of people each year, including thousands of local schoolchildren, who come to learn about nature and the environment. On a given day, one can see 100 species of wild butter?ies and as many as 200,000 individual butter?ies at the NBC, each of which is at the NBC of its own volition. The NBC is a part of the United States Fish and Wildlife Service?s Lower Rio Grande Valley Wildlife Corridor, and its land reaches the Rio Grande River. Proposed border-wall construction would cut off two-thirds of the NBC, destroying the Center and leaving behind a 70?acre no?man?s land between the proposed border wall and the Rio Grande. No agency of the United States government, whether DHS, CBP or otherwise, contacted NABA prior to entering the NBC to begin construction. Nor has any agency of the United States government contacted NABA since. II. Claims A. The National Environmental Policy Act NEPA3 is ?the basic national charter for protection of the environment.?4 It mandates, among other requirements, that all agencies of the federal government include, ?in every recommendation or report on proposals for legislation and other major federal actions signi?cantly affecting the quality of the human environment,? a ?detailed statement by the responsible official on . . . the environmental impact of the proposed action,?5 as well as ?any adverse environmental effects which cannot be avoided should the proposal be implemented, alternatives to the proposed action, . . . [and] any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.?6 The Supreme Court has stated that the preparation of an environmental impact study promotes broad environmental objectives in key regards. Preparing an EIS ensures that the agency, ?in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts.?7 ?[P]erhaps more signi?cantly,? the preparation of an environmental impact statement ?provides a springboard for public comment,? so studies re?ect the work not only of the agencies themselves, but also ?the critical views? of stakeholders.8 Where, as here, potential adverse impacts on air quality, waters, an international boundary, and fauna, will be subject to regulation by other governmental bodies, the EIS ?serves the function of offering those bodies adequate notice of the expected consequences and the opportunity to plan and implement corrective measures in a timely manner.?9 The Agencies have ?aunted requirements. They have not studied environmental issues, provided environmental impact statements or even envirOnmental assessments, demonstrated consultation with other agencies, or otherwise taken steps to ensure regulatory compliance.10 Their failure to conduct any environmental analysis or provide records to the public if such an analysis has occurred undermines specific requirements, as well as its dual purposes 42 U.S.C.A. 4321 et seq. 40 C.F.R. 42 U.S.C.A. Id. Robertson v. Methow Valley Citizen Council, 490 US. 332, 349 (1989). Id. at 349-350. 1d. at 350. 1? 40 CPR. 1501 et seq. of better informing agency decision-making so that potential environmental impacts can be avoided or mitigated. B. Endangered Species Act Every federal agency is required by the ESA11 to insure, in consultation with the United States Fish and Wildlife Service, ?that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modi?cation of habitat of such species.?12 Once a species of plant or animal is listed as threatened or endangered, the ESA provides a variety of procedural and substantive protections to guarantee not only the species? continued survival, but its ultimate recovery. To that end, the ESA mandates that federal agencies avoid actions that jeopardize listed species or destroy or adversely modify designated critical habitat.13 As a preliminary matter, each federal agency must review its actions ?at the earliest possible time? to determine whether any action ?may affect listed species or critical habitat.?14 If such effect is possible, formal consultation with the Fish and Wildlife Service is required.15 Through the consultation process, the Fish and Wildlife Service prepares a ?biological opinion? as to whether proposed agency action jeopardizes species or modifies critical habitat and, if so, suggests ?reasonable and prudent alternatives.?16 The Rio Grande Valley is a major bird migration corridor with over 500 species, and is the last remaining habitat for the endangered ocelot. The NBC itself is home to a number of endangered species. For example, the NBC partnered with the Fish and Wildlife Service to create a refugium for the Slender Rushpea (Ho?mannseggia and is creating a 5-acre refugium for endangered Tamaulipan Kidneypetal (Ayem'a limitaris).18 The NBC is home to endangered Walker?s Manioc (Manihot walkerae).19 It is home to threatened species like Texas Tortoises (Gopherus berlandieri),20 Texas Horned Lizard cornutum),21 and Texas Indigo Snakes (Drymarchon melanurus 16U.S.C.?153letseq. ?2 16 1536(a)(2). 13 Id. '4 50 C.F.R. 402.14. '5 Id. '6 16 U.S.C. 1536(b)(3)(A). '7 The Slender Rushpea was listed as endangered on November 1, 1985. 50 Fed. Reg. 45614, 45618. Texas Ayenia was determined to be endangered on August 24, 1994. 59 Fed. Reg. 43648, 43652. '9 Walker?s Manioc was determined to be endangered on October 2, 1991. 56 Fed. Reg. 49850, 49854. Both the federal and Texas governments have determined the tortoise is threatened. Texas determined the lizards are threatened. 18 20 21 erebeanus).22 Additionally, there are a number of federally endangered aquatic species that live in the Mission Main Canal that ?ows through the NBC. Deprivation of these animals? habitats, and the construction of a barrier impeding access to food, water, and mates, threatens their continued existence. The threshold for triggering an agency?s duties under the ESA has been met.? Notwithstanding their clear obligations, the Agencies have failed to conduct any environmental analyses for the project. As a result, the scope of the impact of their conduct on endangered and threatened species and their habitats is unknown. The Agencies have failed to consult with the Fish and Wildlife Service, or to take any af?rmative steps to conserve the threatened and endangered species that may be impacted by the project. These failures violate Section 7 of the ESA. Additionally, the Agencies have failed to conduct surveys or other investigations into endangered species present in the NBC. They may therefore cause needless harm to listed species. In the event these failures result in the taking of a listed species, the Agencies would violate Section 9 of the ESA. C. Deprivation of Property without Due Process of Law For over 15 years, NABA has lawfully owned the lOO-acre NBC, devoting signi?cant time, effort, and expense to converting a commercial onion farm into a center for birds, butter?ies, and other wildlife visited by tens of thousands of people per year. The United States Constitution provides that person shall . . . be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.?24 The Agencies have deprived NABA of its property without due process of law. Without noti?cation or authorization, CBP contractors entered the NBC and began destroying NBC property cutting down trees and brush along a road through the center. The express purpose of this entry and destruction is to enable construction of a border wall. CBP further placed sensors throughout NABA property, constituting a permanent trespass and a deprivation of use and enjoyment of the NBC. Although the United States government enjoys a limited easement for the purposes of constructing and maintaining levees for ?ood control purposes, the Agencies? conduct is outside the scope of these grants of permission. The Agencies enjoy no legal right to enter into or use property for the construction of a border wall. Further, nothing in the easements authorizes the 22 Texas determined the snakes are threatened. 23 16 U.S.C.A. 1536(4). 24 US. CONST. amend. V. distribution, without knowledge and consent, of sensors throughout the NBC. The Agencies, in their conduct and stated intentions, foreclose any doubt as to the purpose of the destruction of property and placement of sensors. The purpose is not the maintenance of levees. As such, the Agencies entered into NABA property without authorization or lawful basis. The distribution of sensors throughout NABA property additionally constitutes an impermissible search under the Fourth Amendment. The Fourth Amendment provides that ?[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.?25 It is no matter that the evidence sought pertains to others the placement of sensors, without authorization or disclosure of their location, serves as a constant search upon NABA property without legal authority or exigent circumstance. The Constitution cannot tolerate the Agencies? continual violation of rights. D. Unlawful Discrimination on the Basis of Race and Ethnicity Prior to and since the illegal activity in the NBC, CBP officials have engaged in a pattern and practice of discrimination against NBC employees and visitors on the basis of employees? and visitors? perceived race or ethnicity. The scope of the Agencies? illicit conduct in this regard is the subject of continued investigation. Stops and harassment of employees and visitors on the basis of perceived race and national origin constitutes a violation of these employees? and visitors? rights. 25 US. CONST. amend. IV. 111. Conclusion NABA requests immediate cessation of border?wall preparation and construction activities on its property. NABA requests immediate disclosure of the location of all sensors, and, where necessary, costs for their removal. Should the Agencies fail to remedy the aforementioned violations within 60 days, NABA intends to pursue this matter in a federal district court. As prior notice is not required for NEPA or constitutional violations, NABA reserves the right to immediately pursue relief for those violations at any time. NABA further reserves all rights under law, equity, and any agreements with state and federal government. Respectfully submitted, (251% Harry irlin Debevoise Plimpton, LLP 919 Third Avenue New York, NY 10022 (212) 909-6575 cc: Of?ce of the General Counsel US. Department of Homeland Security 245 Murray Lane, S.W. Mail Stop 0485 Washington, DC. 20528?0485 ogc@hq.dhs. gov Scott K. Falk Chief Counsel US. Customs and Border Protection 1300 Avenue, NW. Washington, DC. 20229