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Case: 19-17501, 01/24/2020, ID: 11573656, DktEntry: 31-3, Page 1 of 210 Nos. 19-17501, 19-17502, 20-15044 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT SIERRA CLUB, et al., Plaintiffs-Appellees, v. DONALD J. TRUMP, in his official capacity as President of the United States, et al., Defendants-Appellants. STATE OF CALIFORNIA, et al., Plaintiffs-Appellees/Cross-Appellants, v. DONALD J. TRUMP, in his official capacity as President of the United States, et al., Defendants-Appellants/Cross-Appellees. On Appeal from the United States District Court for the Northern District of California APPELLANTS’ EXCERPTS OF RECORD VOLUME 3 OF 3, pp. 227-432 JOSEPH H. HUNT Assistant Attorney General HASHIM M. MOOPPAN Deputy Assistant Attorney General H. THOMAS BYRON III EDWARD HIMMELFARB MICHAEL SHIH Attorneys, Appellate Staff Civil Division, Room 7268 U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, DC 20530 (202) 353-6880 Case: 19-17501, 01/24/2020, ID: 11573656, DktEntry: 31-3, Page 2 of 210 INDEX Clerk’s Record No. Document Description Page [Volume 1 of 3, pp. 1-48] 259 Judgment, filed Dec. 11, 2019 ER1 257 Order Granting In Part And ER2 Denying In Part Plaintiffs’ Motions For Partial Summary Judgment And Denying Defendants’ Motions For Partial Summary Judgment, filed Dec. 11, 2019 [Volume 2 of 3, pp. 49-226] 260 Notice of Appeal, filed Dec. 13, ER49 2019 [259 in California v. Trump Notice of Appeal, filed Dec. 13, ER51 2019] [262 in California v. Trump Notice of Cross-Appeal, filed Jan. ER53 7, 2020] 249 Defendants’ Response To ER60 The Court’s November 20, 2019 Order Requesting Additional Information About Military Installations, filed Nov. 25, 2019 249-1 Exh. 1: Second Declaration of ER66 Alex A. Beehler, filed Nov. 25, 2019 Case: 19-17501, 01/24/2020, ID: 11573656, DktEntry: 31-3, Page 3 of 210 Exhibits to Motion for Partial Summary Judgment Regarding Border Barrier Projects Undertaken Pursuant to 10 U.S.C. § 2808 and Opposition to Plaintiffs' Motion for Partial Summary Judgment 236-5 Exh. 5: Deputy Secretary of ER71 Defense Memorandum for Secretary of the Army, dated Dec. 4, 2001, filed Oct. 25, 2019 236-7 Exh. 7: Army General ER74 Order No. 2019-36, dated Oct. 8, 2019, filed Oct. 25, 2019 236-9 Exh. 9: Third Declaration ER76 of Millard F. Lemaster, dated Oct. 23, 2019, filed Oct. 25, 2019 206 Notice Of Filing Of Administrative ER81 Record For Border Barrier Projects Undertaken Pursuant To 10 U.S.C. § 2808, filed Sept. 16, 2019 206-1 Certification of Administrative Record, ER83 dated Sept. 13, 2019, filed Sept. 16, 2019 206-2 Administrative Record, Part 1, pp. 1-54, ER84 filed Sept. 16, 2019 206-3 Administrative Record, Part 2, ER138 pp. 55-73, filed Sept. 16, 2019 206-4 Administrative Record, Part 3, pp. 74-143 ER157 filed Sept. 16, 2019 Case: 19-17501, 01/24/2020, ID: 11573656, DktEntry: 31-3, Page 4 of 210 [Volume 3 of 3, pp. 227-432] 26 First Amended Complaint For ER227 Declaratory And Injunctive Relief, filed March 18, 2019 [47 in California v. Trump First Amended Complaint For ER267 Declaratory And Injunctive Relief, filed March 13, 2019] District Court Docket Entries, ER349 Sierra Club v. Trump, No. 4:19-cv-00892-HSG District Court Docket Entries, ER386 California v. Trump, No. 4:19-cv-00872-HSG Case:Case 19-17501,4:19-cv-00892-HSG 01/24/2020, Document ID: 11573656, 26 FiledDktEntry: 03/18/19 31-3, Page 51 of 21040 1 DROR LADIN* NOOR ZAFAR* 2 HINA SHAMSI* OMAR C. JADWAT* 3 AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor 4 New York, NY 10004 Tel.: (212) 549-2660 5 Fax: (212) 549-2564 [email protected] 6 [email protected] [email protected] 7 [email protected] *Admitted pro hac vice 8 CECILLIA D. WANG (SBN 187782) 9 AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street 10 San Francisco, CA 94111 Tel.: (415) 343-0770 11 Fax: (415) 395-0950 [email protected] 12 SANJAY NARAYAN (SBN 183227)** 13 GLORIA D. SMITH (SBN 200824)** SIERRA CLUB ENVIRONMENTAL LAW PROGRAM 14 2101 Webster Street, Suite 1300 Oakland, CA 94612 15 Tel.: (415) 977-5772 [email protected] 16 [email protected] **Counsel for Plaintiff SIERRA CLUB 17 Attorneys for Plaintiffs (Additional counsel listed on following page) 18 UNITED STATES DISTRICT COURT 19 NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO-OAKLAND DIVISION 20 SIERRA CLUB and SOUTHERN BORDER 21 COMMUNITIES COALITION, 22 Plaintiffs, Case No.: 4:19-cv-00892-HSG 23 v. 24 DONALD J. TRUMP, President of the United FIRST AMENDED COMPLAINT FOR States, in his official capacity; PATRICK M. DECLARATORY AND INJUNCTIVE 25 SHANAHAN, Acting Secretary of Defense, in his RELIEF official capacity; KIRSTJEN M. NIELSEN, 26 Secretary of Homeland Security, in her official capacity; and STEVEN MNUCHIN, Secretary of 27 the Treasury, in his official capacity, 28 Defendants. FIRST AMENDED COMPLAINTER227 FOR DECLARATORY AND INJUNCTIVE RELIEF CASE NO: 4:19-cv-00892-HSG Case:Case 19-17501,4:19-cv-00892-HSG 01/24/2020, Document ID: 11573656, 26 FiledDktEntry: 03/18/19 31-3, Page 62 of 21040 1 Additional counsel for Plaintiffs: 2 MOLLIE M. LEE (SBN 251404) CHRISTINE P. SUN (SBN 218701) 3 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC. 4 39 Drumm Street San Francisco, CA 94111 5 Tel.: (415) 621-2493 Fax: (415) 255-8437 6 [email protected] [email protected] 7 DAVID DONATTI* 8 ANDRE I. SEGURA (SBN 247681) AMERICAN CIVIL LIBERTIES UNION FOUNDATION 9 OF TEXAS P.O. Box 8306 10 Houston, TX 77288 Tel.: (713) 325-7011 11 Fax: (713) 942-8966 [email protected] 12 [email protected] *Admitted pro hac vice 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FIRST AMENDED COMPLAINTER228 FOR DECLARATORY AND INJUNCTIVE RELIEF CASE NO: 4:19-cv-00892-HSG Case:Case 19-17501,4:19-cv-00892-HSG 01/24/2020, Document ID: 11573656, 26 FiledDktEntry: 03/18/19 31-3, Page 73 of 21040 1 INTRODUCTION 2 1. On February 15, 2019, President Donald Trump invoked his authority under the 3 National Emergencies Act, 50 U.S.C. §§ 1601–1651, to declare a national emergency and divert 4 billions of dollars appropriated for other purposes to carry out his campaign promise to build a wall 5 along the U.S.-Mexico border. 6 2. The President’s declaration was made solely out of disagreement with Congress’s 7 decision about the proper funding level, location, and timetable for constructing a border wall. On 8 the same day that President Trump signed his declaration, he also signed an act of Congress 9 appropriating only $1.375 billion for the border wall. The law Congress passed not only denied the 10 President the additional billions he had demanded, but also imposed substantial restrictions on the 11 location and timing of border wall construction. 12 3. In announcing his declaration of a national emergency, the President stated, “I don’t 13 need to do this,” but explained that he preferred to build the border wall faster than Congress’s 14 appropriation would allow. 15 4. The President’s declaration plainly states that the invocation of an emergency is to 16 address a “long-standing” problem of “large-scale unlawful migration through the southern border” 17 and the President’s opinion that the number of families seeking asylum at the U.S.-Mexico border 18 presents an “emergency.” In fact, there was and is no national emergency to justify the President’s 19 action, only his disagreement with Congress’s duly enacted decisions on the extent and pace of 20 spending on the border wall. 21 5. On its face, the declaration does not meet the requirements of the statutory 22 authorization that the President invokes, 10 U.S.C. § 2808. That law, duly enacted by Congress, 23 provides that the President may declare an emergency to deploy military construction funds “that are 24 necessary to support such [emergency] use of the armed forces.” The declaration does not set forth 25 any actual emergency, any use of the armed forces required to address such an emergency, or how a 26 diversion of military construction funds is necessary to support the use of the armed forces of the 27 United States. The President has also instructed his subordinates to divert additional sources of 28 1 FIRST AMENDED COMPLAINTER229 FOR DECLARATORY AND INJUNCTIVE RELIEF CASE NO: 4:19-cv-00892-HSG Case:Case 19-17501,4:19-cv-00892-HSG 01/24/2020, Document ID: 11573656, 26 FiledDktEntry: 03/18/19 31-3, Page 84 of 21040 1 Departments of Defense and Treasury funds that Congress restricted for other purposes, in an effort 2 to secure the appropriations that Congress denied him for the border wall. 3 6. Neither a declaration of emergency nor the Defense and Treasury funding statutes the 4 administration has invoked permit the President to disregard Congress’s enacted appropriations 5 legislation. The President’s actions violate both those statutes and the Constitution. 6 7. Plaintiffs Sierra Club and Southern Border Communities Coalition are harmed by the 7 President’s unlawful declaration of a national emergency and bring this action seeking declaratory 8 and injunctive relief and other remedies as set forth below. 9 JURISDICTION AND VENUE 10 8. This case arises under the Consolidated Appropriations Act of 2019, Pub. Law No. 11 116-6; Article I, section 9, clause 7 of the U.S. Constitution; Article I, section 7 of the U.S.
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