United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued December 5, 2019 Decided October 13, 2020 No. 19-5052 NORTH AMERICAN BUTTERFLY ASSOCIATION , APPELLANT v. CHAD F. WOLF, IN HIS OFFICIAL CAPACITY AS ACTING SECRETARY, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET AL., APPELLEES Appeal from the United States District Court for the District of Columbia (No. 1:17-cv-02651) Timothy K. Beeken argued the cause and filed the briefs for appellant. Jeffrey S. Beelaert, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Jeffrey Bossert Clark, Assistant Attorney General, and Eric Grant, Deputy Assistant Attorney General. Before: TATEL, MILLETT, and PILLARD, Circuit Judges. Opinion for the Court filed by Circuit Judge PILLARD. 2 Dissenting opinion filed by Circuit Judge MILLETT. PILLARD , Circuit Judge: 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. I. BACKGROUND In our de novo review of the district court’s order dismissing under Federal Rule of Civil Procedure 12(b)(1) and 3 12(b)(6) the Butterfly Association’s claims, we accept the operative complaint’s well-pleaded factual allegations as true and draw all reasonable inferences in the Butterfly Association’s favor. See Wash. All. of Tech. Workers v. DHS, 892 F.3d 332, 338-39 (D.C. Cir. 2018). Like the district court, we consider “any documents either attached to or incorporated in the complaint and matters of which [the court] may take judicial notice.” Hurd v. District of Columbia, 864 F.3d 671, 678 (D.C. Cir. 2017) (alteration in original) (quoting EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997)). A. Factual Allegations Located in southern Texas, ...
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