WASHINGTON (CN) — In an auspicious hearing for a butterfly sanctuary standing in the way of the planned wall on the southern border, the D.C. Circuit pressed the government Thursday on evidence that Border Patrol agents had cut locks on the property.
Timothy Beeken, an attorney with Debevoise & Plimpton, described the intrusions this morning at oral arguments, saying officers broke the law by replacing the locks owned by the North American Butterfly Association, which runs a 100-acre refuge on the Rio Grande in Texas. The National Butterfly Center is home to more than 100 wild butterfly species, a number of which are considered threatened or endangered.
Earlier this year, in dismissing the butterfly association’s case, U.S. District Judge Richard Leon emphasized that the search and seizure clause of the Fourth Amendment offers no relief for “open fields,” even those that are privately owned.
Heeding the judge’s call for evidence that the government had entered or searched physical structures on the center’s property without consent, Beeken focused his argument Thursday on the various structures and buildings that dot the property.
In addition to cutting locks, Beeken accused the government of clearing trees and other wildlife to widen a roadway, while also leaving trucks and other barriers that prevent access by association members.
Beeken told the court that, just a day earlier, officials at the butterfly refuge had called the police to report that plain-clothes officers were sitting in a Customs and Border Protection truck on its property. It turned out that they were government contractors, not CBP officers.
“They should have reached out for consent,” Beeken said.
U.S. Circuit Judge Patricia Millett, an Obama appointee, offered a lighthearted explanation.
“Maybe the contractors came to look at the butterflies,” Millett said.
U.S. Circuit Judge Cornelia Pillard meanwhile pressed the government on the broken locks, prompting a reply from Justice Department attorney Jeff Beelaert that agents had provided a key to any locks on the refuge property they replaced.
Beelaert insisted that the Immigration Control and Reform Act shields the government's conduct. This law states any decision arising from, or relating to action by Homeland Security Secretary Chad Wolfe, is lawful when directed toward “necessary activities” to protect the border. As for the tree-clearing project, Beelaert said this was done on a utility road after obtaining a state permit.
Beelaert’s interpretation of the statute seemed to rankle U.S. Circuit Judge David Tatel.
A Clinton appointee, Tatel said he thought that the act protected secretary’s actions relating to protection, not arising from the secretary’s actions. Tatel asked how patrol actions by Customs and Border Protection agents without permission from the butterfly refuge didn’t violate the Fourth Amendment.
Beelaert said the agents didn’t need permission when the activities were necessary to patrolling the border. He also called the issue moot on two fronts, denying that the organization can show immediate harm and noting that Congress has yet to pass the budget that will set money aside for wall construction on the Rio Grande.
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