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Motion PI Border Wall Case 4:19-cv-00872-HSG Document 57-3 Filed 04/04/19 Page 1 of 48 1 XAVIER BECERRA Attorney General of California 2 ROBERT W. BYRNE SALLY MAGNANI 3 MICHAEL L. NEWMAN Senior Assistant Attorneys General 4 MICHAEL P. CAYABAN CHRISTINE CHUANG 5 EDWARD H. OCHOA Supervising Deputy Attorneys General 6 HEATHER C. LESLIE JANELLE M. SMITH 7 JAMES F. ZAHRADKA II LEE I. SHERMAN (SBN 272271) 8 Deputy Attorneys General 300 S. Spring St., Suite 1702 9 Los Angeles, CA 90013 Telephone: (213) 269-6404 10 Fax: (213) 897-7605 E-mail: [email protected] 11 Attorneys for Plaintiff State of California 12 IN THE UNITED STATES DISTRICT COURT 13 FOR THE NORTHERN DISTRICT OF CALIFORNIA 14 OAKLAND DIVISION 15 16 17 STATE OF CALIFORNIA; STATE OF Case No. 4:19-cv-00872-HSG COLORADO; STATE OF 18 CONNECTICUT; STATE OF PLAINTIFFS’ NOTICE OF MOTION DELAWARE; STATE OF HAWAII; AND MOTION FOR PRELIMINARY 19 STATE OF ILLINOIS; STATE OF INJUNCTION; MEMORANDUM OF MAINE; STATE OF MARYLAND; POINTS AND AUTHORITIES IN 20 COMMONWEALTH OF SUPPORT THEREOF MASSACHUSETTS; ATTORNEY 21 GENERAL DANA NESSEL ON BEHALF Date: May 9, 2019 OF THE PEOPLE OF MICHIGAN; Time: 2:00 pm 22 STATE OF MINNESOTA; STATE OF Dept: 2 NEVADA; STATE OF NEW JERSEY; Judge: Honorable Haywood S. Gilliam, 23 STATE OF NEW MEXICO; STATE OF Jr. NEW YORK; STATE OF OREGON; Trial Date: None Set 24 STATE OF RHODE ISLAND; STATE OF Action Filed: February 18, 2019 VERMONT; COMMONWEALTH OF 25 VIRGINIA; and STATE OF WISCONSIN; 26 Plaintiffs, 27 v. 28 Pls.’ Notice of Mot. and Mot. for Prelim. Inj. and Mem. ISO (4:19-cv-00872-HSG) Case 4:19-cv-00872-HSG Document 57-3 Filed 04/04/19 Page 2 of 48 1 DONALD J. TRUMP, in his official capacity as President of the United States of America; 2 UNITED STATES OF AMERICA; U.S. 3 DEPARTMENT OF DEFENSE; PATRICK M. SHANAHAN, in his official capacity as 4 Acting Secretary of Defense; MARK T. ESPER, in his official capacity as Secretary of 5 the Army; RICHARD V. SPENCER, in his official capacity as Secretary of the Navy; 6 HEATHER WILSON, in her official capacity 7 as Secretary of the Air Force; U.S. DEPARTMENT OF THE TREASURY; 8 STEVEN T. MNUCHIN, in his official capacity as Secretary of the Treasury; U.S. 9 DEPARTMENT OF THE INTERIOR; DAVID BERNHARDT, in his official capacity 10 as Acting Secretary of the Interior; U.S. 11 DEPARTMENT OF HOMELAND SECURITY; KIRSTJEN M. NIELSEN, in 12 her official capacity as Secretary of Homeland Security; 13 Defendants. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pls.’ Notice of Mot. and Mot. for Prelim. Inj. and Mem. ISO (4:19-cv-00872-HSG) Case 4:19-cv-00872-HSG Document 57-3 Filed 04/04/19 Page 3 of 48 1 TABLE OF CONTENTS 2 Page 3 NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION .......................... 1 MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 1 4 INTRODUCTION .......................................................................................................................... 1 5 BACKGROUND ............................................................................................................................ 4 6 I. The Dispute Between the President and Congress over Funding for a Border Wall ............................................................................................................. 4 7 II. Defendants’ Actions to Divert Funding and Resources from Other Sources to Construct a Border Wall ..................................................................................... 5 8 III. Defendants’ Actions Harm Plaintiff States ............................................................. 9 9 A. The Diversion of Funds through §§ 8005 and 284 toward Construction of a Border Wall Will Cause Environmental Harm to 10 New Mexico ................................................................................................ 9 11 B. Plaintiff States Benefit from TFF Resources that Defendants Are Diverting to Border Wall Construction ..................................................... 10 12 LEGAL ARGUMENT .................................................................................................................. 12 13 I. Legal Standard ...................................................................................................... 12 II. Plaintiff States Are Likely to Succeed on the Merits of Their Claims ................. 13 14 A. Plaintiff States Are Likely to Succeed on Their Constitutional 15 Claims ....................................................................................................... 14 1. Separation of Powers and Appropriations Principles.................... 14 16 2. Defendants Have Violated the Separation of Powers, 17 Including the Presentment Clause ................................................. 17 3. Defendants Have Violated the Appropriations Clause ................. 20 18 B. Plaintiff States Are Likely to Succeed on Their Claims that 19 Defendants Have Acted Ultra Vires and in Excess of Statutory Authority ................................................................................................... 21 20 1. Defendants Lack Statutory Authority to Divert Funding and Resources for Construction of a Border Wall Under 10 21 U.S.C. § 284 and § 8005 of the FY 2019 DOD Appropriations Act ........................................................................ 22 22 2. Defendants Lack Statutory Authority to Divert Funds from 23 TFF Pursuant to 31 U.S.C. § 9705 for Construction of a Border Wall ................................................................................... 25 24 C. Plaintiff States Are Likely to Succeed on their APA Claim ..................... 26 25 D. Plaintiff States Are Likely to Succeed on their NEPA Claim ................... 28 III. Plaintiff States Are Likely to Suffer Irreparable Harm from the Funding 26 Diversions ............................................................................................................. 29 27 28 i Pls.’ Notice of Mot. and Mot. for Prelim. Inj. and Mem. ISO (4:19-cv-00872-HSG) Case 4:19-cv-00872-HSG Document 57-3 Filed 04/04/19 Page 4 of 48 1 TABLE OF CONTENTS (continued) 2 Page 3 A. New Mexico is Likely to Suffer Irreparable Harm from the Environmental Impacts Caused by the Diversion of Funding and 4 Resources and Construction of Border Wall Without Proper Environmental Review .............................................................................. 29 5 B. Diversion from TFF is Likely to Irreparably Harm the Plaintiff States ......................................................................................................... 31 6 IV. The Balance of Hardships Favors Granting a Preliminary Injunction .................. 33 7 CONCLUSION ............................................................................................................................. 35 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii Pls.’ Notice of Mot. and Mot. for Prelim. Inj. and Mem. ISO (4:19-cv-00872-HSG) Case 4:19-cv-00872-HSG Document 57-3 Filed 04/04/19 Page 5 of 48 1 TABLE OF AUTHORITIES 2 Page 3 FEDERAL CASES 4 All. for the Wild Rockies v. Cottrell 632 F.3d 1127 (9th Cir. 2011) ...................................................................................................13 5 6 Am. Trucking Ass’ns, v. Los Angeles 559 F.3d 1046, 1058-59 (9th Cir. 2009) ...................................................................................31 7 Ariz. Dream Act Coal. v. Brewer 8 757 F.3d 1053 (9th Cir. 2014) ...................................................................................................33 9 Benda v. Grand Lodge of Int’l Assoc. of Machinists & Aerospace Workers 584 F.2d 308 (9th Cir. 1978) .....................................................................................................18 10 Biodiversity Legal Found. v. Badgley 11 309 F.3d 1166 (9th Cir. 2002) ...................................................................................................13 12 Bowsher v. Synar 13 478 U.S. 714 (1986) ..................................................................................................................14 14 California ex rel. Lockyer v. U.S. Dept. of Agric. 459 F. Supp. 2d 874 (N.D. Cal. 2006) ......................................................................................29 15 Chalk v. U.S. Dist. Court Cent. Dist. of Cal. 16 840 F.2d 701 (9th Cir. 1988) .....................................................................................................12 17 Cincinnati Soap Co. v. United States 18 301 U.S. 309 (1937) ..................................................................................................................16 19 City & Cty. of San Francisco v. Trump 897 F.3d 1225 (9th Cir. 2018) .......................................................................................17, 18, 19 20 City of Arlington v. FCC 21 569 U.S. 290 (2013) ..................................................................................................................14 22 City of Houston v. HUD 23 24 F.3d 1421 (D.C. Cir. 1994) ..................................................................................................33 24 City of Los Angeles v. Sessions 293 F. Supp. 3d 1087 (C.D. Cal. 2018).....................................................................................32 25 Clinton v. City of New York 26 524 U.S. 417 (1998) .......................................................................................................... passim 27 Delta Data Sys. Corp. v. Webster 744 F. 2d 197 (D.C. Cir.
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