La Posta v. Donald Trump

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 4, 2020
• Docket: 20-55941
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 4 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LA POSTA BAND OF DIEGUEÑO No. 20-55941 MISSION INDIANS OF THE LA POSTA RESERVATION, On behalf of itself and on D.C. No. behalf of its members as parens patriae, 3:20-cv-01552-AJB-MSB

Plaintiff-Appellant, MEMORANDUM* v.

DONALD J. TRUMP, President of the United States, in his official capacity; MARK T. ESPER, U.S. Secretary of Defense, in his official capacity; CHAD F. WOLF, Acting U.S. Secretary of Homeland Security, in his official capacity; TODD T. SEMONITE, Commanding General of the U.S. Army Corps of Engineers, in his official capacity,

Defendants-Appellees.

Appeal from the United States District Court for the Southern District of California Anthony J. Battaglia, District Judge, Presiding

Argued and Submitted October 27, 2020 San Francisco, California

Before: TASHIMA, TALLMAN, and MURGUIA, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. This appeal presents a challenge by a federally recognized tribe, the La Posta

Band of Diegueño Mission Indians (“La Posta” or “Tribe”), to the federal

government’s funding and construction of border-barrier projects in San Diego and

Imperial Counties, California. La Posta appeals the district court’s denial of a

preliminary injunction. Because the parties are familiar with the facts, we do not

recite them here. We have jurisdiction under 28 U.S.C. § 1292(a)(1), and we

affirm.

We review a district court’s denial of a preliminary injunction for abuse of

discretion. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.

2011). A plaintiff seeking a preliminary injunction must demonstrate

(1) likelihood of success on the merits, (2) irreparable harm absent an injunction,

(3) that the balance of hardships favors the plaintiff, and (4) that an injunction is in

the public interest. Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008). When

the government is a party, the court considers the balance of hardships and the

public interest factors together. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073,

1092 (9th Cir. 2014).

La Posta contends that our recent decisions in California v. Trump, 963 F.3d

926 (9th Cir. 2020), and Sierra Club v. Trump, 963 F.3d 874 (9th Cir. 2020)

(“Sierra Club II”), cert. granted, Trump v. Sierra Club, No. 20-138, 2020 WL

6121565 (Oct. 19, 2020), establish both an ultra vires cause of action and a cause

2 of action under the Administrative Procedure Act to challenge the Department of

Defense’s “reprogramming” of funds for border-barrier construction pursuant to

section 8005 of the Consolidated Appropriations Act. See Consolidated

Appropriations Act, 2020, Pub. L. No. 116-93, div. A, § 8005, 133 Stat. 2317

(2019). La Posta further asserts that the district court abused its discretion by

failing to recognize either cause of action in concluding that La Posta was not

likely to succeed on the merits. But assuming for now (before the Supreme Court

definitively answers the question) that La Posta has a cause of action to challenge

the funding transfers, we cannot conclude that the district court abused its

discretion in denying La Posta a preliminary injunction because the district court

permissibly determined that La Posta had not made a sufficient showing of

irreparable harm.

La Posta asserted that absent an injunction the Tribe would be harmed by

the government’s disturbance of its ancestral burial grounds and its members’

inability to practice religious ceremonies at sacred sites. The government

responded that burial grounds have not previously been documented in the

construction area or discovered during construction, and the Tribe’s sacred sites

are still accessible because they are located outside the construction area. The

district court acted within its discretion in concluding that factual disputes

undermined La Posta’s showing of these asserted harms. And while the

3 environmental harm we recognized in Sierra Club II is indeed generally

irreparable, All. for the Wild Rockies, 632 F.3d at 1135, La Posta did not plead or

brief this type of harm in the district court. Therefore, the district court did not

abuse its discretion in denying injunctive relief.

AFFIRMED.