UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
TOHONO O'ODHAM NATION, )
)
Plaintiff, )
) Civil Case No. 26-2127 (RJL)
V. )
)
MARK.WAYNE MULLIN, et al., )
)
Defendants. )
_________ _ )
MEMORANDUM OPINION
August f 3 ~2026 [Dkt. #3]
For decades, plaintiff the Tohono O'odham Nation and the United States
Government have worked together to secure a sixty-two mile stretch of the international
border with Mexico. In 2004, the Tohono O'odham Nation agreed to construction of a
vehicle barrier over most of the international border that stops vehicles-but not peoplefrom crossing. The Government now plans to replace the vehicle barrier with a
congressionally-authorized and funded border wall next to the Tohono O'odham
Reservation. Plaintiff seeks a preliminary injunction to stop construction on grounds that
the border wall will change the Reservation boundaries and will result in trespasses over
the Reservation. Because plaintiff is unlikely to succeed on the merits of these claims, and
because the remaining preliminary injunction factors favor the Government, I will DENY
plaintiff's Motion for a Preliminary Injunction.
1
BACKGROUND
I. The United States-Mexico International Border
The international border between the United States and Mexico stretches for nearly
2,000 miles and spans four states-California, Arizona, New Mexico, and Texas. 1
Securing and maintaining control of such a lengthy and geographically varied border is a
challenge, especially given the high volume of illegal entries and drug smuggling. For
example, at the Arizona border from 2021 to 2026, the Government apprehended 1.3
million illegal aliens and seized thousands of pounds of illicit drugs, including over 3,475
pounds offentanyl, 17,200 pounds of marijuana, and 11,750 pounds ofmethamphetamine.
Deel. of Paul Enriquez ("Enriquez Deel.") [Dkt. #18-2] ,r 10.
Congress has directed the Secretary of Homeland Security (the "Secretary") to
"achieve and maintain operational control over" the United States-Mexico border,
including through "physical infrastructure enhancements." Secure Fence Act of 2006, Pub.
L. No. 109-367, § 2(a), 120 Stat. 2638, 2638 (codified at 8 U.S.C. § 1701 note). Congress
has repeatedly passed legislation authorizing the Secretary to construct physical barriers at
the border. See, e.g., Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104-208, § 102, 110 Stat. 3009, 3009-554 (1996) (codified at 8 U.S.C. § 1103 note and
hereinafter referred to as the Illegal Immigration Reform and Immigrant Responsibility
Act, or "IIRIRA"). Most recently, Congress appropriated $46 billion to U.S. Customs and
Border Protection for, among other things, the"[ c]onstruction, installation, or improvement
1
Smart Wall Map, U.S. Customs & Border Protection, https://perma.cc/9LWK-6HEP (last accessed Aug. 10, 2026).
2
of new or replacement primary, waterborne, and secondary barriers." One Big Beautiful
Bill Act, Pub. L. No. 119-21, tit. IX, sec. 90001, 139 Stat. 72,358 (2025).
To fast-track border construction, Congress authorized the Secretary to "waive all
legal requirements ... necessary to ensure expeditious construction of the barriers and
roads under this section." IIRIRA § 102(c)(l). Congress further limited federal courts'
jurisdiction over "any action undertaken, or any decision made, by the Secretary" pursuant
to IIRIRA's waiver authority. IIRIRA § 102(c)(2)(A). The statute permits only
constitutional challenges to such "action[s]" or "decision[s]," and any legal challenges
must be brought within sixty days. IIRIRA § 102(c)(2)(B), (C). On April 3, 2008, the
Secretary issued a broad waiver of numerous environmental and procedural laws, including
the Administrative Procedure Act, for projects "in the States of California, Arizona, New
Mexico, and Texas." 73 Fed. Reg. 18293; see also 91 Fed. Reg. 45823, 45823 (July 21,
2026) (waiving numerous laws specifically for the Tucson 5 Project).
II. The Tohono O'odham Nation
Plaintiff, the Tohono O'odham Nation ("plaintiff' or "the Nation"), is a "federally
recognized Indian tribe with a government-to-government relationship with the United
States." Compl. [Dkt. #1] ,r 8. The Nation occupies a 2.8 million-acre reservation in
Arizona. Id. ,r 13. For approximately sixty-two miles, the Nation's reservation runs
alongside the international border with Mexico. Id.
Plaintiff's "broader aboriginal territory" "extends throughout much of present-day
Arizona and into Mexico." Id. ,r 24. There are currently "[s]eventeen O'odharn
communities with approximately 2,000 members" in Mexico, and members of the Nation
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"continue to cross the border for sacred pilgrimages and ceremonies at important religious
and cultural sites." Id. ,r 27.
The Nation has a "long-standing cooperative relationship" with the U.S.
Government when it comes to border security and enforcement. Id. ,r 34. In addition to
collaborating with federal law enforcement agencies, the Nation has led a High Intensity
Drug Trafficking Task Force (the NATIVE Task Force) targeting drug trafficking within
the Nation's borders. Deel. of James Cook ("Cook Deel.") [Dkt. #3-5] ,r 11. The Nation
has authorized construction of "two Customs and Border Protection Forward Operating
Bases on the Reservation," ten "Integrated Fixed Towers" for border surveillance, and
"vehicle barriers and a patrol road along the vast majority of the border, with the exception
of those areas where vehicle access is impossible due to mountainous terrain." Compl.
,r,r 36, 38. Today, the four-foot vehicle barrier along most of the international border
prevents vehicles from crossing the border but offers little resistance to pedestrians who
wish to go over or under these barriers. See Cook Deel. ,r 15.
III. The Tucson 5 Project
In the spring of 2026, the U.S. Department of Homeland Security informed plaintiff
of its "plans to construct a border wall and associated infrastructure along the international
border within the Nation's Reservation." Compl. ,r 49. Plaintiff has not consented to any
construction. Id. ,r 51. On June 26, 2026, U.S. Customs and Border Protection awarded a
contract for construction of a "primary physical barrier" and "barrier system attributes" in
what the Government is calling the "Tucson 5 Project." Enriquez Deel. ,r 11. Design work
4
is underway. See id. ,r 14. U.S. Customs and Border Protection "does not anticipate
construction activities starting prior to October 12, 2026." Id.
IV. Procedural History
On June 16, 2026, the Nation sued defendants Markwayne Mullin, Rodney Scott,
and Rosario Vasquez ("defendants") all in their official capacities as Secretary of the U.S.
Department of Homeland Security, Commissioner of U.S. Customs and Border Protection,
and Chief ofU.S. Border Patrol, respectively. See Compl. The next day, the Nation moved
for a preliminary injunction halting construction of the border wall adjacent to the Nation's
reservation. See Pl.'s Mot. for Prelim. Inj. ("Mot.") [Dkt. #3]. The Government opposes.
See Defs.' Mem. of Points & Authorities in Opp'n to Pl. 's Mot. for Prelim. Inj. [Corrected]
("Opp'n") [Dkt. #19-1]. Plaintiff filed its reply on July 14, 2026. See Pl.'s Reply Mem.
("Reply") [0kt. #25].
On July 22, 2026, the Court held a hearing on plaintiff's motion for a preliminary
injunction. See Hr'g Tr. [Dkt. #43]. At the close of the hearing, the Court provided the
parties with the opportunity to "submit a supplemental pleading based on the arguments
that took place here today." Hr'r Tr. at 37:6-7. The parties submitted their supplemental
briefs on July 30, 2026. See Suppl. Mem. of the Tohono O'odham Nation in Supp. of its
Mot. for Prelim. Inj. ("Pl.'s Suppl. Br.") [Dkt. #37]; Defs.' Suppl. Br. in Opp'n to Pl.'s Mot.
for Prehm. Inj. ("Defs.' Suppl. Br.") [Dkt. #39-1]. The motion is now ripe for decision.
LEGAL STANDARD
A preliminary injunction is "an extraordinary remedy that may only be awarded
upon a clear showing that the plaintiff is entitled to such relief." Winter v. NRDC, Inc., 555
5
U.S. 7, 22 (2008). To obtain a preliminary injunction, the movant "must establish that he
is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence
of preliminary relief, that the balance of equities tips in his favor, and that an injunction is
in the public interest." Id. at 20.
ANALYSIS
I. Likelihood of Success on the Merits
A. Ultra Vires Claim
Plaintiff argues that defendants' planned construction of the border wall is ultra vires
because the wall will diminish the boundaries of the Reservation without express
congressional authorization and will violate 25 U.S.C. § 398d. 2 While ultra vires review
is available, I conclude that plaintiff is unlikely to succeed on the merits because the federal
Roosevelt Reservation exists along the international border and, in any event, plaintiff has
not established that construction of a border wall will indeed alter Reservation boundaries.
1. Availability of Ultra Vires Review
Before getting to the merits of a nonstatutory ultra vires claim, the plaintiff must
show that "(i) there is no express statutory preclusion of all judicial review" and "(ii) there
is no alternative procedure for review of the statutory claim." Fed. Express Corp. v. US.
Dep 't of Com. ("FedEx"), 39 F.4th 756, 763 (D.C. Cir. 2022) (internal quotation marks
2
25 U.S.C. § 398d provides that "[c]hanges in the boundaries ofreservations created by Executive order, proclamation, or otherwise for the use and occupation of Indians shall not be made except by Act of Congress."
6
omitted). Defendants argue that IIRIRA Section 102(c)(2) expressly precludes review of
plaintiff's ultra vires claim. On this point, I disagree.
"Judicial review for ultra vires agency action 'rests on the longstanding principle
that if an agency action is unauthorized by the statute under which [the agency] assumes to
act, the agency has violate[ d] the law and the courts generally have jurisdiction to grant
relief."' FedEx, 39 F.4th at 763 (quoting National Ass 'n ofPostal Supervisors v. USPS, 26
F.4th 960, 970 (D.C. Cir. 2022)). The "presum[ption] that agency action is judicially
reviewable," however, "may be overcome by specific language that is a reliable indicator
of congressional intent." DCH Reg'! Med. Ctr. v. Azar, 925 F.3d 503,505 (D.C. Cir. 2019)
(quoting Knapp Med. Ctr. v. Hargan, 875 F.3d 1125, 1128 (D.C. Cir. 2017)). The relevant
question, then, is whether Congress has "clearly and directly" prohibited judicial review of
plaintiff's ultra vires claim. Bd. of Governors of Fed. Rsrv. Sys. v. MCorp Fin., Inc., 502
U.S. 32, 44 (1991).
Defendants argue that IIRIRA's waiver provision-Section 102(c)(1 )-and the
accompanying jurisdiction-stripping provision-Section 102(c)(2)-preclude plaintiff's
ultra vires claim. Section 102(c)(1) provides:
Notwithstanding any other provision of law, the Secretary of Homeland
Security shall have the authority to waive all legal requirements such
Secretary ... determines necessary to ensure expeditious construction of the
barriers and roads under this section.
8 U.S.C. § 1103 note.
Section 102(c)(2)(A) provides:
The district courts of the United States shall have exclusive jurisdiction to
hear all causes or claims arising from any action undertaken, or any decision
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made, by the Secretary ofHomeland Security pursuant to paragraph (1). A
cause of action or claim may only be brought alleging a violation of the
Constitution of the United States. The court shall not have jurisdiction to
hear any claim not specified in this subparagraph.
Id. (emphasis added). The connection between plaintiff's ultra vires claim and the
jurisdiction-stripping provision is not obvious. Plaintiff argues that defendants' planned
construction of the border wall is ultra vires because the wall will diminish reservation
boundaries without congressional authorization. Unlike many recent border wall cases,
plaintiff does not challenge the legality of a secretarial waiver pursuant to IIRIRA Section
102(c)(l). See, e.g., Ctr.for Biological Diversity v. McAleenan, 404 F. Supp. 3d 218,235
(D.D.C. 2019). Defendants nevertheless argue that Section 102(c)(2)'s jurisdictionstripping provision applies here because ultra vires review is available only when "there is
no alternative procedure for review of the statutory claim," FedEx, 39 F.4th at 763, and
plaintiff relies on the Secretary's waiver of the Administrative Procedure Act to satisfy this
requirement. In other words, because plaintiff's ultra vires claim is "premised on an
IIRIRA waiver," Section 102(c)(2) precludes plaintiff's claim. Defs.' Suppl. Br. at 4.
Our Circuit's reasoning in North American Butterfly Association v. Wolf strongly
suggests-if not requires me to find-that plaintiff's ultra vires claim about diminishment
of reservation b~:mndaries does not "arise from" the Secretary's 2008 waiver of the
Administrative Procedure Act. In North American Butterfly, our Circuit Court explained
that Section 102(c)(2) "(b]y its terms ... does not extend to construction or related activities
that do not necessarily flow from exercise of the waiver authority as such, but that IIRIRA
section 102(a)-(b) authorizes independently." 977 F.3d 1244, 1260 (D.C. Cir. 2020).
8
"Because ' arise' out of means ' to originate from a specified source, the phrase ' arising out
of' generally requires ' a causal connection,' not merely a 'logical' one." Id. (internal
citations omitted).
The 2008 waiver enables plaintiff to bring an ultra vires claim because there are no
other avenues for judicial review. But it can hardly be said that the Secretary's waiver
caused plaintiff's ultra vires claim. Cf Ford Motor Co. v. Montana Eighth Jud. Dist. Ct.,
592 U.S. 351,362 (2021) (explaining, in the context of personal jurisdiction, that "arise
out of' requires a "causal showing"). Interpreting Section 102(c)(2) 's "arising from"
language to "require[] a causal connection," North American Butterfly, 977 F.3d at 1260
(internal quotation marks omitted), also gives effect to IIRIRA's specific reference to
Section 102(c)(l). Congress could have stripped jurisdiction over any actions or decisions
pursuant to the Secretary's authority under Sections 102(a) and 102(b), but it instead
focused the jurisdiction-stripping provision on the Secretary's waiver authority under
Section 102(c). Consistent with this reasoning, at least one court has exercised jurisdiction
over ultra vires claims "challeng[ing] the scope of the Secretary's authority to build roads
and walls under section 102(a) and 102(b), not the scope of waiver authority under section
102(c)." In re Border Infrastructure Env't Litig., 915 F.3d 1213, 1221 (9th Cir. 2019).
Section 102(c)(2) therefore does not supply "clear and convincing evidence that Congress
intended to deny the District Court jurisdiction" over plaintiff's ultra vires claim. MCorp
9
Fin., Inc., 502 U.S. at 44. 3
2. Merits
That hurdle aside, to succeed on the merits of its ultra vires claim, plaintiff must
establish that defendants have "plainly act[ed] in excess of [their] delegated powers and
contrary to a specific prohibition in the statute that is clear and mandatory." FedEx, 39
F.4th at 763 (internal quotation marks omitted). As I have said before, "ultra vires review
is a high bar"-it is the ultimate "Hail Mary pass." Nat'! Tr. for Historic Pres. v. Nat'/
Park Serv., 827 F. Supp. 3d 93, 104 (D.D.C. 2026) (quoting Nuclear Regul. Comm 'n v.
Texas, 605 U.S. 665, 681 (2025)). Plaintiff is unlikely to clear this high bar.
To succeed on an ultra vires claim, the plaintiff must show that "the agency has
'stepped so plainly beyond the bounds of [its statutory authority] , or acted so clearly in
defiance of it, as to warrant the immediate intervention of an equity court."' FedEx, 39
F.4th at 764 (quoting Griffith v. FLRA, 842 F.2d 487, 493 (D.C. Cir. 1988)). "Only error
that is patently a misconstruction of the Act, that disregards a specific and unambiguous
statutory directive, or that violates some specific command of a statute will support relief."
Id. (cleaned up). The legal error must be "so extreme that one may view it as jurisdictional
or nearly so." Changji Esque/ Textile Co. v. Raimondo, 40 F.4th 716, 722 (D.C. Cir. 2022)
(quoting Griffith, 842 F.2d at 493).
3
Defendants do not separately argue that there is a "statutory review scheme provid[ing] aggrieved persons with a meaningful and adequate opportunity for judicial review." Nuclear Regul. Comm 'n v. Texas, 605 U.S. 665, 681 (2025) (internal quotation marks omitted).
Plaintiff argues that the proposed border wall will unlawfully diminish the Nation's
reservation boundaries without the authority of Congress and in violation of 25 U.S.C.
§ 398d. Plaintiff's ultra vires claim suffers, unfortunately, from multiple deficiencies.
First, the Roosevelt Reservation likely exists along the international border. In
1907-ten years before the creation of the Nation's modern-day Reservation by executive
order-President Theodore Roosevelt "set apart as a public reservation[] all public lands
within sixty feet of the international boundary between the United States and the Republic
of Mexico." Proclamation of May 27, 1907, 35 Stat. 2136, 2136 [Dkt. #18-3]. Plaintiff
argues that it had aboriginal title to the land before the creation of the Roosevelt
Reservation, so the Nation's lands were not "public lands," and therefore the Roosevelt
Reservation has never existed on the reservation. Mot. at 22-31. But historical evidence
casts doubt on plaintiff's theory.
In a 1934 dispute before the Solicitor of the Interior, the Nation argued that they
held rights to land "in fee by virtue of a title vested in them before the area in question
came under the sovereignty of the United States," so "the land never became part of the
public domain," or "public lands." Solicitor's Memorandum Opinion M-27656 (Mar. 1,
1934) at 360, supplemented by M-27656 (Supp.) (May 7, 1934) [Dkt. #18-7]. The Solicitor
of the Interior issued an opinion concluding that "the interest of the [Nation] in the land
they claim [is] subordinate to a superior proprietorship in the United States." Id. at 363.
The Nation did not "have a perfected title in fee which precludes the United States from
exercising any proprietorship over the land." Id. While the opinion recognized that the
Nation retained the "Indian right of surface occupancy," id. at 438, this right was not
11
equivalent to an "independent title which can . . . embarrass any future action that to
Congress may seem appropriate in the premises." Id. at 438, 370-71. The opinion
therefore calls into question plaintiff's claim that the Reservation land was not "public
land" before the President established the Reservation in 1917.
Subsequent practice reflects multiple instances in which the Government and the
Nation acknowledged the existence of the Roosevelt Reservation. In 193 7, Congress
passed a law modifying the boundaries of the Nation's Reservation but expressly noting
that "[t]his extension shall not affect ... the reservation of a strip of land sixty feet wide
along the United States-Mexico boundary made by proclamation of the President dated
May 27, 1907." Act of July 28, 1937, Pub. L. No. 75-217, 50 Stat. 536 [Dkt. #18-4]. And
as recently as 2004, the Nation-in approving construction of a vehicle barrier along the
international border-acknowledged that U.S. Border Patrol "plans to construct the border
vehicle barrier and road entirely within the sixty-foot strip of land reserved by the
Presidential Proclamation of President Theodore Roosevelt dated May 27, 1907."
Resolution No. 04-095 (Mar. 8, 2004) [Dkt. #18-6].
Plaintiff points to other historical evidence to argue that the Roosevelt Reservation
has never existed on the Nation's Reservation because the Reservation was never "public
land," but plaintiff's evidence is flawed. The 1968 Indian Claims Commission decision
that recognized the Nation's aboriginal title also stated specifically that the "Gadsden
Purchase of 1854 brought the subject lands under United States sovereignty and they
became public land by the Act of July 22, 1854." 19 Ind. Cl. Comm. 394, 432 [Dkt. #3-15] (emphasis added). The decision goes on to say that the "[ 1854] Act provided for the
12
application to the new public lands of the pre-emption laws of the Territory of New Mexico
other than on lands covered by claims based on Spanish or Mexican law." Id. (emphasis
added). Plaintiff suggests that this phrase included claims based on aboriginal title. See
Reply at 7-8. But the case plaintiff relies on does not say this outright. See United States
v. Santa Fe Pacific Railroad Co., 314 U.S. 339,351 (1941) ("[T]heseActs were concerned
not with the problem of ascertaining the boundaries oflndian country but with the problem
of quieting titles originating under Spanish or Mexican grants.") Such conflicting historical
evidence is not the stuff of successful ultra vires claims. 4
Second, even if the Roosevelt Reservation does not exist on the Nation's
Reservation, plaintiff has not shown how construction of a wall on the existing international
border will change the boundaries of the Nation's reservation. The core of plaintiff's ultra
vires theory is that only Congress can "adjust the Nation's boundaries." Pl.'s Suppl. Br. at
2. As a legal matter, it is well-established that Congress has exclusive authority to diminish
reservation boundaries, and that Congress must make its intent to do so clear and
unambiguous. See McGirt v. Oklahoma, 591 U.S. 894, 903-04 (2020). But I am not aware
of any case holding that construction of a border wall adjacent to a Reservation-with the
possibility of activities that may interfere with the Nation's use and occupancy rightsnecessarily diminishes the Reservation's boundaries.
4
Plaintiffs' reliance on references to the Nation's grazing of cattle up to the border is not persuasive because, as defendants argue, "[t]here is no conflict between the federal government's reservation of the land for national security purposes and transient uses like grazing." Defs.' Suppl. Br. at 8.
13
To the contrary, the establishment of non-Indian towns, or the sale of property to
non-Indians, does not change the reservation status of the lands. See, e.g., Seymour v.
Superintendent of Wash. State Penitentiary, 368 U.S. 351, 358-59 (1962) (rejecting
argument that "lands owned by towns" were "exclud(ed] from a reservation"). As
defendants persuasively argue, "constructing a border barrier is not the type of action that
could change the status or boundaries of a reservation." Defs.' Suppl. Br. at 5.
Plaintiff's novel ultra vires theory therefore fails to meet the "high bar," Nat 'l Tr.
for Historic Pres., 827 F. Supp. 3d at 104, for extraordinary equitable relief.
B. Trespass Claim
As a fallback, plaintiff argues that defendants' planned border wall may be enjoined
for the independent reason that it constitutes a trespass on the Reservation. Plaintiff's
trespass claim is unlikely to succeed on the merits because the federal government's
sovereign immunity bars its claim.
As our Circuit has explained, "claims against the federal government and its actors
are jurisdictionally barred by sovereign immunity." Schilling v. US. House of
Representatives, 102 F.4th 503, 506 (D.C. Cir. 2024). Congress may waive sovereign
immunity through "clear statutory text" in statutes such as the Administrative Procedure
Act or the Federal Tort Claims Act. Id. Courts interpret such statutes "strictly," and any
exceptions to the Government's sovereign immunity "are not to be lightly implied." Block
v. N Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 287 (1983). Plaintiff does
not argue that any statute waives sovereign immunity here. It couldn't!
14
Instead, plaintiff relies on the Larson-Dugan exception to sovereign immunity for
both its ultra vires and trespass claims. Under the Larson-Dugan exception, "if the federal
officer, against whom injunctive relief is sought, allegedly acted in excess of his legal
authority, sovereign immunity does not bar a suit." Chamber of Com. of U.S. v. Reich, 74
F.3d 1322, 1329 (D.C. Cir. 1996) (citing Larson v. Domestic & Foreign Commerce Corp.,
337 U.S. 682, 690-91 (I 949)). In other words, sovereign immunity does not bar successful
ultra vires claims. As explained supra Section I.A., plaintiff's ultra vires claim fails on the
merits so the Larson-Dugan exception cannot operate to waive defendants' sovereign
immunity for plaintiff's trespass claim.
Plaintiff argues that the Larson-Dugan exception also extends to suits seeking "an
injunction against a state officer who abridges a common law duty without statutory
authorization." Mot. at 19-20 (quoting Leopold v. Manger, 102 F.4th 491,495 (D.C. Cir.
2024)). But the cases cited by plaintiff all involve mandamus petitions seeking access to
documents under the common law right of public ·access. See Leopold, l 02 F.4th at 493;
Schilling, 102 F.4th at 505; Leopold v. Sullivan, 823 F. Supp. 3d 59, 64 (D.D.C. 2026). As
far as I can tell, no court has extended the Larson-Dugan exception to common law tort
claims, let alone trespass claims, seeking injunctive relief against the Government.
However, even if plaintiff established a waiver of the Government's sovereign
immunity, the availability of a federal common law trespass claim by an Indian tribe against
the federal government is at best uncertain. Plaintiff relies on dicta to suggest the
availability of such a cause of action. See Edwardsen v. Morton, 369 F. Supp. 1359, 1371
(D.D.C. 1973) (explaining that "officers are themselves liable in trespass if their actions
15
cause[] third parties to enter the land" but concluding that "resort to that principle of tort
law actually is unn[ e]cessary in view of the fiduciary duty of the federal government and
its agents to protect the interests of Native Americans"). But plaintiff has not identified
any case (outside the context of a Federal Tort Claims Act claim for damages) involving a
common law trespass suit against the Government.
Indeed, significant uncertainties remain about the actual scope of construction
activities and the extent to which they may interfere with the Nation's land outside the
Roosevelt Reservation. See Enriquez Deel. ,r 13 ("[T]he contractor has been instructed to
confine the project footprint ... to the 60-foot federal Roosevelt Reservation."). At this
early stage, plaintiff has not established a '"clear showing' of entitlement" to the
extraordinary remedy of preliminary injunctive relief. Haynes v. Navy Fed. Credit Union,
841 F. Supp. 2d 221 , 223 (D.D.C. 2012) (quoting Winter, 555 U.S. at 21).
II. Remaining Winter Factors
Because plaintiff is unlikely to succeed on the merits, I could deny relief on that
basis alone. Cf Clevinger v. Advoc. Holdings, Inc., 134 F.4th 1230, 1236 (D.C. Cir. 2025).
But for the sake of completeness, I will briefly address the remaining Winter factors, all of
which favor defendants.
To prevail, plaintiff must show that it is "likely to suffer irreparable harm in the
absence of preliminary relief." Winter, 555 U.S. at 20. The threat of harm must be "both
certain and great, actual and not theoretical, beyond remediation, and of such imminence
that there is clear and present need for equitable relief." Mexichem Specialty Resins, Inc.
v. EPA, 787 FJd 544, 555 (D.C. Cir. 2015) (internal quotation marks omitted). Plaintiff
16
must also show that "the balance of equities tips in [its] favor," and that "an injunction is
in the public interest." Winter, 555 U.S. at 20. When "the Government is the opposing
party," these final two factors "merge." Nken v. Holder, 556 U.S. 418, 435 (2009).
Plaintiff argues that the planned border wall will inflict irreparable harm to its
sovereignty and proprietary control over its lands, as well as cause environmental and First
Amendment harms. See Mot. at 41--43. Plaintiff's alleged harms based on its claim to the
land leading up to the international border are not likely to materialize because, as
explained supra Section I.A.2., the Roosevelt Reservation likely exists along the Nation's
border, and defendants have not yet articulated plans to construct outside the Roosevelt
Reservation. Regarding the environmental and First Amendment harms, plaintiff has
pointed to numerous harms to the landscape, including "four sets of mountain peaks" that
are "sacred peaks to the Tohono people." Hr'g Tr. at 12:11-12, 15. Defendants note,
however, that plans have not yet been finalized for the border wall, and that many-if not
all-of plaintiff's alleged environmental and First Amendment injuries could be mitigated
through consultation with the Nation and accommodations, such as crossing gates to enable
members of the Nation to access the international border. See Enriquez Deel. ~~ 16-1 7,
24-29, 33. Given the possibility of mitigating plaintiff's injuries, I find that plaintiff has
not yet established irreparable harm that is "certain" and "great." Mexichem Specialty
Resins, Inc., 787 F.3d at 555 (internal quotation marks omitted).
And in any event, I find that the Government's interests in securing the border,
enforcing immigration laws, and ensuring public safety outweigh any surviving irreparable
harms at this juncture. "The Supreme Court has recognized that the public interest in
17
enforcement of the immigration laws is significant." Blackie s House of Beef, Inc. v.
Castillo, 659 F.2d 1211, 1221 (D.C. Cir. 1981). Congress, through enacting IIRIRA and
appropriating funds for border wall construction, has identified physical border walls as a
key component of border security. Given the national security and foreign policy
considerations related to the border wall, deference to the Government is warranted,
particularly for plaintiff's ultra vires claim. See Changji Esque! Textile Co. v. Raimondo,
40 F.4th 716, 723 (D.C. Cir. 2022).
CONCLUSION
The international border is an area of great significance to both the United States
and to the Nation. While I have concluded that a preliminary injunction is unwarranted, I
fully expect the Government in the months ahead to follow through on its guarantees of
consultation and cooperation with the Nation to address the Nation's concerns regarding
border wall construction!
For the foregoing reasons, it is hereby ORDERED that plaintiff's Motion for a
Preliminary Injunction [Dkt. #3] is DENIED. An accompanying order will issue
contemporaneously with this opinion.
Rl~J.LEON
United States District Judge
18