Texas Butterfly Preserve Contests Border Wall in Court

WASHINGTON (CN) – A nonprofit whose south Texas butterfly preserve stands in the way of a planned border wall called for a federal judge Monday to hinge construction on the results of an environmental assessment.

Represented by the firm Debevoise & Plimpton, the North American Butterfly Association accuses Homeland Security officials of flouting their legal obligation to determine what effect the border wall will have on threatened and endangered species that make their home at the National Butterfly Center in Mission, Texas.

“The agencies have provided no justification or excuse for their failure to comply with NEPA or the ESA,” the complaint states, abbreviating the National Environmental Policy Act and the Endangered Species Act.

The lawsuit names as defendants Department of Homeland Security Secretary Kirstjen Nielsen; Kevin McAleenan, the acting commissioner of Customs and Border Protection; Acting Chief of U.S. Border Patrol Carla Provost, and Customs and Border Patrol Chief Patrol Agent Manuel Padilla.

A 100-acre wildlife preserve and botanical garden in the Rio Grande valley, the National Butterfly Center opened to the public in 2004. Its website touts objectives of educating the public on the value of biodiversity and "the wonder of butterflies."

According to the complaint, the National Butterfly Center is home to several endangered species. Visitors on any given day “can see 100 species of wild butterflies and as many as 200,000 individual butterflies, none of which is held in captivity at the Butterfly Center,” the complaint states.

A major bird-migration corridor, the Rio Grande Valley  boasts 500 bird species and provides the last remaining habitat for the endangered ocelot.  

The complaint says Homeland Security officials have already damaged and destroyed part of the property for purposes unrelated to patrolling the border.

"Instead, on information and belief, the agencies’ and contractors’ activities are in preparation for the construction of a border wall which has been designated to run through the Butterfly Center," the complaint states.

The North American Butterfly Association says the wall, once complete, will cut off two-thirds of the National Butterfly Center.

It also claims that Department of Homeland Security officials are already violating the association’s due process rights by preventing employees and the preserve’s visitors from accessing certain parts of the property.

Jeffrey Glassberg, president of the North American Butterfly Association, said the federal government has never communicated with the association regarding any of its activities on the National Butterfly Center property.

“We want them to stop conducting all of these illegal activities,” Glassberg said in a phone interview about why the association filed the lawsuit.

Citing agency policy, the Department of Homeland Security declined to comment on the pending litigation or the allegations contained in the complaint.  

The butterfly group’s complaint meanwhile cites the takings clause and due process clause of the Fifth Amendment, saying the federal government is not allowed to appropriate private property without just compensation.

Glassberg estimated the North American Butterfly Association’s investment in the National Butterfly Center at $7 million but said no amount of compensation could justify its loss.

“That isn't what we're seeking,” Glassberg said. “We're just seeking to be left alone and run the butterfly center."

Harry Zirlin with Debevoise & Plimpton echoed this point in a brief phone interview.

"The case is about preserving one of the premier wildlife sanctuaries in the United States,” Zirlin said. “And preventing the government from destroying this man's life's work."

Alleging violations of the National Environmental Policy and Endangered Species Acts, the butterfly center wants Customs and Border Patrol agents and their contractors barred from entering private land outside 25 miles of the border.

The lawsuit also seeks a declaration that the defendants violated the due process clause of the Constitution, and asks the court to enjoin Department of Homeland Security officials from constructing the wall until they comply with the requirements of federal law.

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