D.C.Cir.: Alleged seizure of open fields not a 4A claim, but it is a 5A claim

The North American Butterfly Association sued the federal government over a part of the Mexican border wall on their butterfly preserve being Fourth and Fifth Amendment claims. Their Fourth Amendment claim is dismissed because it involves alleged seizure of open fields. The case can go forward in its Fifth Amendment claim. N. Am. Butterfly Ass’n v. Wolf, 2020 U.S. App. LEXIS 32214 (D.C. Cir. Oct. 13, 2020):

The National Butterfly Center, a 100-acre wildlife sanctuary and botanical garden owned by the nonprofit North American Butterfly Association, lies along the border between the United States and Mexico. Butterfly Center staff discovered in 2017 that a segment of the wall the U.S. Department of Homeland Security (DHS) plans to build on the border with Mexico would run through the Center’s premises. After DHS confirmed that plan and asserted control over parts of the Center, the Butterfly Association sued.

The Association contends that DHS’ presence on and use of parts of its property to prepare for and carry out construction of a border wall violate the Fourth and Fifth Amendments to the United States Constitution and two environmental statutes. The district court dismissed all claims, concluding the Association stated no viable constitutional claim and that section 102(c)(2)(A) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, 110 Stat. 3009, 3009-546, as amended (IIRIRA) (codified at 8 U.S.C. § 1103), strips jurisdiction over the statutory claims because the DHS Secretary waived application of environmental laws with respect to the construction of roads and physical barriers to be built at the Center. See N. Am. Butterfly Ass’n v. Nielsen, 368 F. Supp. 3d 1, 4 (D.D.C. 2019). We affirm dismissal of the Butterfly Association’s statutory and Fourth Amendment claims but reverse dismissal of the Fifth Amendment claim and remand for further proceedings consistent with this opinion.
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The Butterfly Association asserts a Fourth Amendment claim of “unreasonable seizure of its property,” Appellant’s Br. 19, but because it admits that the Butterfly Center is an “open field[],” Reply Br. 12-13, its claimed interest against seizure—whether cast in privacy or possessory terms—is unprotected by the Fourth Amendment. “The Fourth Amendment ‘indicates with some precision the places and things encompassed by its protections'” against unreasonable searches and seizures; what it speaks of are “persons, houses, papers, and effects.” Florida v. Jardines, 569 U.S. 1, 6, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (2013) (quoting Oliver v. United States, 466 U.S. 170, 176, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984)). At its “very core,” the Fourth Amendment protects the inside of a home, id. (quoting Silverman v. United States, 365 U.S. 505, 511, 81 S. Ct. 679, 5 L. Ed. 2d 734 (1961)), and its home protection has been held to extend to “curtilage”—the outdoor area “immediately surrounding and associated with the home,” id. (quoting Oliver, 466 U.S. at 180). But “open fields” beyond the curtilage of a home, whether or not privately owned, are not among the protected places and things “enumerated in the Amendment’s text,” so they fall outside the Fourth Amendment’s coverage. Id. The Supreme Court in Oliver provided an additional justification beyond the Fourth Amendment’s enumeration for considering “open fields” outside the Amendment’s scope: “[A]n individual may not legitimately demand privacy for activities conducted out of doors in fields.” 466 U.S. at 178.

The Association acknowledges the lack of a constitutionally protected “privacy interest” in an open field, but asserts that its “possessory interest” in the National Butterfly Center’s grounds suffices to support a Fourth Amendment seizure claim. Appellant’s Br. 18. That claim runs up against the same obstacle that would defeat a privacy-based claim: Open fields are not among the “places and things” the Fourth Amendment protects—whether from infringements of privacy or possession. Jardines, 569 U.S. at 6. To be sure, the Supreme Court recognized in Soldal v. Cook County that its cases “unmistakably hold that the [Fourth] Amendment protects property as well as privacy,” 506 U.S. 56, 62, 113 S. Ct. 538, 121 L. Ed. 2d 450 (1992), and that it shields against “seizures” as well as “searches,” id. at 63 (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984)). In the same breath, however, the Court cautioned that the Fourth Amendment “does not protect possessory interests in all kinds of property,” id. at 62 n.7, with a lone citation to Oliver, in which the Court had held that “open fields” are not part of the “house” or among the “effects” the privacy of which the Fourth Amendment protects, Oliver, 466 U.S. at 176-77. We thus read the Soldal footnote to imply that open fields fall beyond the Fourth Amendment’s protection of possessory as well as privacy interests. That implication gains further (albeit indirect) support in the Court’s recent declaration that, “[q]uite simply, an open field, unlike the curtilage of a home, is not one of those protected areas enumerated in the Fourth Amendment.” United States v. Jones, 565 U.S. 400, 411, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012) (citation omitted). Recognizing the lack of precedent directly on point, we hold that the alleged seizure of the Butterfly Center’s open fields is not cognizable under the Fourth Amendment.

The Butterfly Association frames its Fourth Amendment claim as contesting only a seizure of its open fields. We need not, and do not, consider the potential viability of distinct Fourth Amendment claims that a private party might assert in similar circumstances. We do not, for example, pass on whether continuous monitoring by sensors or CBP officers in person on Center premises might violate the Association’s reasonable expectation of privacy and therefore amount to a Fourth Amendment search, cf. Carpenter v. United States, 138 S. Ct. 2206, 2217-19, 201 L. Ed. 2d 507 (2018), or whether destruction, disturbance, or occupation of botanical gardens, landscaping, or other fixtures or improvements at the Center might count as seizure of Fourth Amendment-protected “effects,” cf. Oliver, 466 U.S. at 177 & n.7. Because the Butterfly Association does not seek relief pursuant to the Fourth Amendment that it does not also seek under the Fifth Amendment, see Oral Arg. Tr. 9:21-24, we need not now venture into those relatively uncharted Fourth Amendment waters. We therefore affirm the dismissal of the Fourth Amendment claim.

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