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Case 1:26-cv-02127-RJL Document 51 Filed 09/01/26 Page 1 of 1\nAO 458 (Rev. 06/09) Appearance of Counsel\n\n\n UNITED STATES DISTRICT COURT\n for the\n District\n __________ of Columbia\n District of __________\n\n\n TOHONO O'ODHAM NATION )\n Plaintiff )\n v. ) Case No. 1:26-CV-02127\n MARKWAYNE MULLIN, et al., )\n Defendant )\n\n APPEARANCE OF COUNSEL\n\nTo: The clerk of court and all parties of record\n\n I am admitted or otherwise authorized to practice in this court, and I appear in this case as counsel for:\n\n Federal Defendants (Markwayne Mullin, Rodney Scott, and Rosario Vasquez) .\n\n\nDate: 09/01/2026 /s/ Shawn D. Ren\n Attorney\u2019s signature\n\n\n Shawn D. Ren, TX 24132873\n Printed name and bar number\n 999 18th St., N Terrace, Suite 600\n Denver, CO 80202\n\n\n Address\n\n shawn.ren2@usdoj.gov\n E-mail address\n\n (202) 598-3141\n Telephone number\n\n (303) 844-1350\n FAX number\n\f","ocr_status":2,"date_upload":"2026-09-10T13:32:11.816419-07:00","document_number":"51","attachment_number":null,"pacer_doc_id":"045012318179","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Notice of Appearance","acms_document_guid":""}],"date_created":"2026-09-01T16:29:05.659232-07:00","date_modified":"2026-09-10T13:19:24.559973-07:00","date_filed":"2026-09-01","time_filed":"18:46:16","entry_number":51,"recap_sequence_number":"2026-09-01.001","pacer_sequence_number":185,"description":"NOTICE of Appearance by Shawn Ren on behalf of All Defendants (Ren, Shawn) (Entered: 09/01/2026)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/476612110/","id":476612110,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/73493770/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/492179965/","id":492179965,"tags":[],"absolute_url":"/docket/73493770/52/tohono-oodham-nation-v-mullin/","date_created":"2026-09-01T16:29:05.525199-07:00","date_modified":"2026-09-10T13:28:39.782355-07:00","sha1":"e9cdbf87286f436582f8a56fbbb5360087b240f1","page_count":3,"file_size":93297,"filepath_local":"recap/gov.uscourts.dcd.293593/gov.uscourts.dcd.293593.52.0.pdf","filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 1:26-cv-02127-RJL Document 52 Filed 09/01/26 Page 1 of 3\n\n\n\n\n UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLUMBIA\n\nTOHONO O\u2019ODHAM NATION, a \u00a7\nfederally recognized Indian tribe, \u00a7\n \u00a7\n Plaintiff, \u00a7\n \u00a7 Civil Action No. 1:26-CV-02127-RJL\nv. \u00a7\n \u00a7\nMARKWAYNE MULLIN, in his official \u00a7\ncapacity of Secretary of Homeland Security, \u00a7\net al., \u00a7\n \u00a7\n Defendants. \u00a7\n\n\n FEDERAL DEFENDANTS\u2019 NOTICE OF INTENT TO RESPOND\n\n Federal Defendants hereby notify the Court that, consistent with the default briefing\n\nschedule set out in the Court\u2019s Local Civil Rules, they intend to respond to Plaintiff\u2019s motion\n\nfor injunction pending appeal, Dkt. No. 50, on or before September 10, 2026 (unless the Court\n\ndenies the motion before then). No urgency justifies deviating from the default briefing\n\nschedule, and the motion ultimately lacks merit.\n\n On August 14, 2026, the Court denied Plaintiff\u2019s motion for preliminary injunction. See\n\nDkt. Nos. 45, 46. On August 27, 2026, Plaintiff filed a motion for injunction pending appeal\n\nunder Rule 62(d), pursuant to which a court may \u201csuspend, modify, restore, or grant an\n\ninjunction\u201d while an appeal is pending. Fed. R. Civ. P. 62(d). Under Local Rule 7(b), an\n\nopposition to a motion in the District of Columbia is due within 14 days of the date of service.\n\nTo be sure, Local Rule 65.1(c) provides that an opposition to an application for preliminary\n\ninjunction must be filed with 7 days. But the pending motion is not an application for\n\f Case 1:26-cv-02127-RJL Document 52 Filed 09/01/26 Page 2 of 3\n\n\n\n\npreliminary injunction, so Local Rule 7(b) controls. The Federal Rules recognize that a\n\npreliminary injunction is different from an injunction pending appeal, and neither is a\n\nsubcategory of the other. Compare Fed. R. Civ. P. 65(a) with Fed. R. Civ. P. 62(d). Furthermore,\n\nas required by Federal Rule 83, district local rules must correspond in numbering to the Federal\n\nRules. See Fed. R. Civ. P. 83(a)(1). The District of Columbia adheres to this requirement, as\n\nLocal Rule 65.1, titled \u201cTemporary Restraining Orders and Preliminary Injunctions,\u201d\n\ncorresponds to Federal Rule 65, titled \u201cInjunctions and Restraining Orders.\u201d Local Rule\n\n65.1(c)\u2019s abbreviated 7-day opposition deadline is therefore applicable to relief sought under\n\nFederal Rule 65. And as set forth, Plaintiff\u2019s motion for injunction pending appeal is, by its\n\nown terms, pursuant to Federal Rule 62(d)\u2014not Federal Rule 65.\n\n For the foregoing reasons, Federal Defendants anticipate responding in accordance\n\nwith the 14-day deadline applicable to motions generally under Local Rule 7(b), unless the\n\nCourt denies the motion before then. No urgency justifies departing from the default\n\nschedule, especially since Plaintiff waited nearly two weeks after the Court denied its motion\n\nfor preliminary injunction to file the pending motion.\n\n\n\n\nDated: September 1, 2026 Respectfully submitted,\n\n ADAM R.F. GUSTAFSON\n Principal Deputy Assistant Attorney General\n\n BRADLEY CRAIGMYLE\n Deputy Assistant Attorney General\n\n /s/ Shawn D. Ren___________\n Shawn D. Ren, Trial Attorney\n\fCase 1:26-cv-02127-RJL Document 52 Filed 09/01/26 Page 3 of 3\n\n\n\n\n U.S. Department of Justice\n Environment & Natural Resources Division\n 999 18th St., N Terrace, Suite 600\n Denver, CO 80202\n Tel: (202) 598-3141\n Fax: (303) 844-1350\n E-mail: shawn.ren2@usdoj.gov\n\n Attorneys for Federal Defendants\n\f","ocr_status":1,"date_upload":"2026-09-10T13:28:39.776811-07:00","document_number":"52","attachment_number":null,"pacer_doc_id":"045012318182","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Notice (Other)","acms_document_guid":""}],"date_created":"2026-09-01T16:29:05.501678-07:00","date_modified":"2026-09-10T13:19:24.591164-07:00","date_filed":"2026-09-01","time_filed":"18:48:17","entry_number":52,"recap_sequence_number":"2026-09-01.002","pacer_sequence_number":190,"description":"NOTICE of Intent to Respond by MARKWAYNE MULLIN, RODNEY SCOTT, ROSARIO VASQUEZ re 50 Motion for Preliminary Injunction, (Ren, Shawn) (Entered: 09/01/2026)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/476137494/","id":476137494,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/73493770/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/491691713/","id":491691713,"tags":[],"absolute_url":"","date_created":"2026-08-28T06:10:36.971607-07:00","date_modified":"2026-08-28T06:10:36.971622-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"","attachment_number":null,"pacer_doc_id":"","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2026-08-28T06:10:36.957068-07:00","date_modified":"2026-08-28T06:10:36.957083-07:00","date_filed":"2026-08-27","time_filed":null,"entry_number":null,"recap_sequence_number":"2026-08-27.003","pacer_sequence_number":null,"description":"USCA Case Number 26-5306 for 48 Notice of Appeal to DC Circuit Court filed by TOHONO O'ODHAM NATION. (mg)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/476136806/","id":476136806,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/73493770/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/491690990/","id":491690990,"tags":[],"absolute_url":"","date_created":"2026-08-28T06:04:14.702807-07:00","date_modified":"2026-08-28T06:04:14.702828-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"","attachment_number":null,"pacer_doc_id":"","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"USCA Case Number","acms_document_guid":""}],"date_created":"2026-08-28T06:04:14.687770-07:00","date_modified":"2026-08-28T06:04:14.687785-07:00","date_filed":"2026-08-28","time_filed":"08:10:56","entry_number":null,"recap_sequence_number":"2026-08-28.001","pacer_sequence_number":null,"description":"","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/476107406/","id":476107406,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/73493770/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/491660477/","id":491660477,"tags":[],"absolute_url":"/docket/73493770/50/tohono-oodham-nation-v-mullin/","date_created":"2026-08-27T19:57:55.302310-07:00","date_modified":"2026-09-08T15:40:24.929162-07:00","sha1":"2e1ec7735c0a6a858adf2ee5b3ae235261b3012a","page_count":3,"file_size":198562,"filepath_local":"recap/gov.uscourts.dcd.293593/gov.uscourts.dcd.293593.50.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.dcd.293593/gov.uscourts.dcd.293593.50.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 1:26-cv-02127-RJL Document 50 Filed 08/27/26 Page 1 of 3\n\n\n\n\n THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLUMBIA\n\n\n\n TOHONO O\u2019ODHAM NATION,\n a federally recognized Indian tribe,\n\n Plaintiff, Case No. 26-cv-2127-RJL\n\n v.\n\n MARKWAYNE MULLIN, in his official\n capacity as Secretary of U.S. Department of\n Homeland Security; RODNEY SCOTT, in his\n official capacity as Commissioner of U.S.\n Customs and Border Protection; and\n ROSARIO VASQUEZ, in his official\n capacity as Chief of U.S. Border Patrol,\n\n Defendants.\n\n\n\n\n MOTION OF THE TOHONO O\u2019ODHAM NATION FOR\n INJUNCTION PENDING APPEAL\n\n Pursuant to Federal Rule of Civil Procedure 62(d), Plaintiff Tohono O\u2019odham Nation (the\n\n\u201cNation\u201d) hereby moves for an injunction pending appeal enjoining Defendants Markwayne\n\nMullin, Rodney Scott, and Rosario Vasquez (all sued in their official capacities)\u2014and their\n\nemployees, subordinates, and agents\u2014from taking, or authorizing or directing any other person\n\nto take, any steps in furtherance of the construction of a border wall or associated infrastructure\n\non the Nation\u2019s Reservation.\n\n On August 26, 2026, the Nation filed a Notice of Appeal from this Court\u2019s Order denying\n\nits motion for a preliminary injunction, and the Nation is filing a Motion to Expedite that appeal\n\n(to which the United States has consented) with the D.C. Circuit.\n\n\n 1\n\f Case 1:26-cv-02127-RJL Document 50 Filed 08/27/26 Page 2 of 3\n\n\n\n\n The attached memorandum of points and authorities, along with supporting declarations\n\nand attachments, set forth the grounds for this motion. A proposed order is also attached.\n\n\n\n Dated: August 27, 2026 Respectfully submitted,\n\n /s/ Riyaz A. Kanji\n Howard M. Shanker, D.C. Bar 426359* Riyaz A. Kanji, D.C. Bar 455165\n Attorney General David A. Giampetroni*\n Logan Takao Cooper* KANJI & KATZEN, P.L.L.C.\n Assistant Attorney General P.O. Box 3971\n TOHONO O\u2019ODHAM NATION Ann Arbor, MI 48106\n P.O. Box 830 (734) 769-5400\n Sells, AZ 85634 rkanji@kanjikatzen.com\n Howard.Shanker@tonation-nsn.gov dgiampetroni@kanjikatzen.com\n Logan.Cooper@tonation-nsn.gov\n Philip H. Tinker*\n KANJI & KATZEN, P.L.L.C.\n 12 N. Cheyenne Ave., Ste. 220\n Tulsa, OK 74103\n (206) 344-8100\n ptinker@kanjikatzen.com\n\n Counsel for Plaintiff Tohono O\u2019odham Nation\n\n\n\n*Pro Hac Vice Admission\n\n\n\n\n 2\n\f Case 1:26-cv-02127-RJL Document 50 Filed 08/27/26 Page 3 of 3\n\n\n\n\n CERTIFICATE OF SERVICE\n I certify that on August 27, 2026, this document was served on all parties or their counsel\n\nof record through the CM/ECF system if they are registered users or, if they are not, by placing a\n\ntrue and correct copy in the United States mail, postage prepaid, to their address of record.\n\n /s/ Riyaz A. Kanji\n Riyaz A. Kanji\n\f","ocr_status":2,"date_upload":"2026-08-27T22:04:09.400396-07:00","document_number":"50","attachment_number":null,"pacer_doc_id":"045012309121","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Preliminary Injunction","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/491661025/","id":491661025,"tags":[],"absolute_url":"/docket/73493770/50/1/tohono-oodham-nation-v-mullin/","date_created":"2026-08-27T20:11:56.172887-07:00","date_modified":"2026-09-10T13:19:32.900023-07:00","sha1":"fb3523d0144d4a6c47b0cbd164921775e5974912","page_count":36,"file_size":370180,"filepath_local":"recap/gov.uscourts.dcd.293593/gov.uscourts.dcd.293593.50.1_1.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.dcd.293593/gov.uscourts.dcd.293593.50.1.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 1:26-cv-02127-RJL Document 50-1 Filed 08/27/26 Page 1 of 36\n\n\n\n\n THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLUMBIA\n\n\n\nTOHONO O\u2019ODHAM NATION,\na federally recognized Indian tribe,\n\n Plaintiff,\n Case No. 26-cv-2127-RJL\nv.\n\nMARKWAYNE MULLIN, in his official\ncapacity as Secretary of U.S. Department of\nHomeland Security; RODNEY SCOTT, in his\nofficial capacity as Commissioner of U.S.\nCustoms and Border Protection; and\nROSARIO VASQUEZ, in his official\ncapacity as Chief of U.S. Border Patrol,\n\n Defendants.\n\n\n\n\n MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF\n THE TOHONO O\u2019ODHAM NATION\u2019S MOTION FOR INJUNCTION PENDING\n APPEAL\n\f Case 1:26-cv-02127-RJL Document 50-1 Filed 08/27/26 Page 2 of 36\n\n\n\n\n TABLE OF CONTENTS\n\nTABLE OF AUTHORITIES........................................................................................................... ii\n\nGLOSSARY................................................................................................................................... vi\n\nINTRODUCTION ...........................................................................................................................1\nARGUMENT ...................................................................................................................................4\n\nI. Standard of Review ..............................................................................................................4\n\nII. Serious Legal Questions Exist as to the Merits of the Nation\u2019s Trespass Claim. ................5\n\n A. A Serious Legal Question Exists Regarding the Secretary\u2019s Sovereign\n Immunity to the Nation\u2019s Trespass Claim. ...............................................................6\n\n B. A Serious Legal Question Exists as to Whether the Nation Has a Trespass\n Cause of Action Against Federal Officials. ..............................................................8\n\n C. A Serious Legal Question Exists as to Whether the Secretary\u2019s Planned\n Conduct Will Constitute Trespass. ...........................................................................9\n\nIII. Serious Legal Questions Exist as to the Merits of the Nation\u2019s Ultra Vires Claim. ..........13\n\n A. The Nation Has Raised a Serious Question as to Whether the Roosevelt\n Reservation Extends Across its Southern Boundary. .............................................13\n\n B. A Serious Legal Question Exists Regarding Whether the Secretary\u2019s Border\n Wall Would Change the Nation\u2019s Reservation Boundary. .....................................15\n\nIV. The Nation Will Suffer Irreparable Harm Absent an Injunction. .......................................17\n\nV. The Equities Strongly Favor an Injunction Pending Appeal. ............................................19\nCONCLUSION ..............................................................................................................................26\n\n\n\n\n i\n\f Case 1:26-cv-02127-RJL Document 50-1 Filed 08/27/26 Page 3 of 36\n\n\n\n\n TABLE OF AUTHORITIES\n\nCases\n\n* A.B.-B. v. Morgan,\n 548 F.Supp.3d 209 (D.D.C. 2020)............................................................................................. 18\n\n* Amoco Production Co. v. Village of Gambell,\n 480 U.S. 531 (1987) .................................................................................................................. 19\n\n* Bardon v. Northern Pacific Railroad Co.,\n 145 U.S. 535 (1892) .................................................................................................................. 13\n\nBiden v. Texas,\n 597 U.S. 785 (2022) .................................................................................................................. 21\n\n* Chamber of Commerce of the United States v. Reich,\n 74 F.3d 1322 (D.C. Cir. 1996)..................................................................................................... 7\n\n* Chaplaincy of Full Gospel Churches v. England,\n 454 F.3d 290 (D.C. Cir. 2006)................................................................................................... 18\n\n* Cigar Association of America v. U.S. Food and Drug Administration,\n 317 F.Supp.3d 555 (D.D.C. 2018)............................................................................................... 5\n\n* County of Oneida v. Oneida Indian Nation,\n 470 U.S. 226 (1985) .................................................................................................................... 8\n\n* Edwardsen v. Morton,\n 369 F.Supp. 1359 (D.D.C. 1973)................................................................................................. 8\n\n* Friends of the Ruidosa Church v. Mullin,\n Case No. 3:26-cv-01099-KC (W.D. Tex. June 22, 2026).......................................................... 20\n\nHeritage Foundation v. Department of Justice,\n No. 24-cv-645 (DLF), 2026 WL 1770708 (D.D.C. June 19, 2026) ............................................ 5\n\nHernandez v. Mesa,\n 589 U.S. 93 (2020) .................................................................................................................... 21\n\n* Leopold v. Manger,\n 102 F.4th 491 (D.C. Cir. 2024).................................................................................................... 6\n\n* Nebraska v. Parker,\n 577 U.S. 481 (2016) ...................................................................................................... 15, 16, 17\n\n\n\n ii\n\f Case 1:26-cv-02127-RJL Document 50-1 Filed 08/27/26 Page 4 of 36\n\n\n\n\nNeurelis, Inc. v. Califf,\n Case No. 24-cv-1576 (APM), 2025 WL 1010222 (D.D.C. Mar. 19, 2025) ................................ 5\n\nRosebud Sioux Tribe v. Kneip,\n 430 U.S. 584 (1977) .................................................................................................................. 16\n\n* Schilling v. U.S. House of Representatives,\n 102 F.4th 503 (D.C. Cir. 2024).................................................................................................... 6\n\n* Seymour v. Superintendent of Washington State Penitentiary,\n 368 U.S. 351 (1962) ............................................................................................................ 15, 16\n\nSolem v. Bartlett,\n 465 U.S. 463 (1984) .................................................................................................................. 16\n\nTrudeau v. Federal Trade Commission,\n 456 F.3d 178 (D.C. Cir. 2006)..................................................................................................... 7\n\n* Trump v. Cook,\n 609 U.S. ___, 2026 WL 1855613 (June 29, 2026) ...................................................................... 6\n\n* United States v. Santa Fe Pacific Railroad Co.,\n 314 U.S. 339 (1941) ............................................................................................................ 13, 14\n\n* Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc.,\n 559 F.2d 841 (D.C. Cir. 1977)..................................................................................................... 5\n\nStatutes\n\n5 U.S.C. \u00a7 702 ................................................................................................................................. 7\n\n25 U.S.C. \u00a7 398d ..................................................................................................................... 16, 17\n\nAct of Mar. 3, 1851, ch. 41, 9 Stat. 631 ........................................................................................ 14\n\nAct of July 22, 1854, ch. 103, 10 Stat. 308 ................................................................................... 14\n\nAct of July 27, 1866, ch. 278, 14 Stat. 292 ................................................................................... 13\n\nAct of May 25, 1918, ch. 86, 40 Stat. 561 .................................................................................... 15\n\nAct of July 28, 1937, ch. 527, 50 Stat. 536 ................................................................................... 15\n\nSection 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996,\n Pub. L. No. 104-208, div. C, 110 Stat. 3009 (1996) .................................................................... 7\n\n\n\n iii\n\f Case 1:26-cv-02127-RJL Document 50-1 Filed 08/27/26 Page 5 of 36\n\n\n\n\nRules\n\nFed. R. App. P. 8(a)(1)(C) .............................................................................................................. 1\n\nFed. R. Civ. P. 62 .................................................................................................................... 1, 4, 5\n\nRegulations\n\nDetermination Pursuant to Section 102 of Illegal Immigrant Reform and Immigrant\n Responsibility Act of 1996, as Amended, 73 Fed. Reg. 19078-01 (Apr. 8, 2008) ..................... 7\n\nExecutive Order No. 14159, Protecting the American People Against Invasion,\n 90 Fed. Reg. 8443 (Jan. 20, 2025) ..............................................................................................21\n\nExecutive Order No. 14165, Securing Our Borders,\n 90 Fed. Reg. 8467 (Jan. 20, 2025) ..............................................................................................21\n\nProclamation 10886, Declaring a National Emergency at the Southern Border of the\n United States, 90 Fed. Reg. 8327 (Jan. 20, 2025) .......................................................................21\n\nOther Authorities\n\nAlejandro Santos Cid, Texas Land Commissioner Orders Feds to Stop \u201cIllegally\u201d Clearing\n State Border Tract, The Tex. Trib. (July 31, 2026) ................................................................... 24\n\nCamilo Montoya-Galvez, Illegal Crossings Along U.S.-Mexico Border Plummet to Lowest\n Annual Level Since 1970, CBS News (Oct. 7, 2025) .................................................................. 4\n\nHouse Committee on Homeland Security, \u201cCrisis by Design\u201d: A Comprehensive Look\n at the Biden-Harris Administration\u2019s Unprecedented Border Crisis (Sept. 18, 2024) .............. 21\n\nJ. David Goodman, Trump Backed Away from a Wall at Big Bend. But the Bulldozers\n Are Here., The New York Times (Aug. 15, 2026) ................................................................ 2, 20\n\nJohn Gramlich, Migrant Encounters at the U.S.-Mexican Border Are at Their Lowest\n Level in More than 50 Years, Pew Rsch. Ctr. (Feb. 2, 2026) .................................................... 22\n\nKristian Jaime, Abbott Cites DHS Commitment to Block Border Wall at Big Bend,\n El Paso Times (Aug. 20, 2026) .................................................................................................. 20\n\nLetter from Dawn Buckingham, Comm\u2019r, Tex. Gen. Land Off., to Barnard Construction\n (July 31, 2026) ........................................................................................................................... 24\n\nMatt Loeschman, Border Crossings in Arizona Fall Dramatically, The Daily Independent\n (July 14, 2026) ........................................................................................................................... 23\n\n\n\n iv\n\f Case 1:26-cv-02127-RJL Document 50-1 Filed 08/27/26 Page 6 of 36\n\n\n\n\nPress Release, Texas General Land Office (Jul. 31, 2026)........................................................... 24\n\nPress Release, U.S. Customs and Border Protection (Feb. 18, 2026)........................................... 13\n\nPress Release, U.S. Department of Homeland Security (Jan. 16, 2026) ...................................... 22\n\nPress Release, U.S. Department of Homeland Security (Apr. 9, 2026) ....................................... 22\n\nPress Release, U.S. Department of Homeland Security (May 15, 2026) ..................................... 22\n\nPress Release, U.S. Department of Homeland Security (June 19, 2026) ..................................... 23\n\nPress Release, U.S. Department of Homeland Security (July 16, 2026) ........................................ 4\n\nPress Release, U.S. Department of Homeland Security (Aug. 13, 2026) ..................................... 23\n\nProclamation of May 27, 1907, 35 Stat. 2136 ........................................................................ 13, 15\n\nRebecca Santana, Trump Administration Briefly Pauses Contentious Border Project in\n Texas\u2019 Big Bend National Park, AP (Aug. 17, 2026)............................................................ 4, 20\n\nTexas Monthly, Photos: Construction Begins in Big Bend National Park\n (Aug. 12, 2026) ...................................................................................................................3, 4, 20\n\nU.S. Customs and Border Prot., Southwest Land Border Encounters (By Component) .................4\n\nZoe Kurland, Big Bend Area Border Wall Threatens to Destroy the Porvenir Massacre\n Site, Marfa Public Radio (Aug. 20, 2026) ..................................................................................25\n\n\n\n\n v\n\f Case 1:26-cv-02127-RJL Document 50-1 Filed 08/27/26 Page 7 of 36\n\n\n\n\n GLOSSARY\n\n\nAbbreviation Term\n\nCBP United States Customs and Border Protection\nCook Decl. Declaration of Tohono O\u2019odham Police Department Interim Chief\n James Cook (Dkt. 3-5)\nEhlerman Decl. Declaration of Paul Michael Ehlerman (Dkt. 26)\nEnriquez Decl. Declaration of Paul Enriquez (Dkt. 18-2)\nICC Op. Indian Claims Commission Opinion, Papago Tribe of Arizona v. United\n States, 19 Ind. Cl. Comm. 394 (Sept. 10, 1968) (Dkt. 3-15 at PDF pp.\n 18\u201362)\nIIRIRA Illegal Immigration Reform and Immigrant Responsibility Act of 1996,\n Pub. L. No. 104-208, div. C, 110 Stat. 3009 (1996)\nMargold Op. Opinion of Solicitor of the Interior Margold re: Lands of Papago Indians\n (March 7, 1934) and Supplemental Opinion re: Lands of Papago Indians\n (May 7, 1934) (Dkt. 18-7)\nMcMullen Decl. Declaration of Donna McMullen (Dkt. 38-1)\nNation Mem. Memorandum of Points and Authorities in Support of The Tohono\n O\u2019odham Nation\u2019s Motion for Preliminary Injunction (Dkt. 3-1)\nNation Reply Reply Memorandum of The Tohono O\u2019odham Nation in Support of Its\n Motion for Preliminary Injunction (Dkt. 25)\nNation Suppl. Supplemental Memorandum of The Tohono O\u2019odham Nation in\nMem. Support of Its Motion for Preliminary Injunction (Dkt. 37)\nSecretary The Secretary of the United States Department of Homeland Security;\n the Commissioner of United States Customs and Border Protection; and\n the Chief of United States Border Patrol\nSec\u2019y Mem. Defendants\u2019 Memorandum of Points and Authorities in Opposition to\n Plaintiff\u2019s Motion for Preliminary Injunction [Corrected] (Dkt. 19-1)\nSec\u2019y Suppl. Defendants\u2019 Supplemental Brief in Opposition to Plaintiff\u2019s Motion for\nMem. Preliminary Injunction (Dkt. 38)\nSection 102 Section 102 of the Illegal Immigration Reform and Immigrant\n Responsibility Act of 1966, as amended (and codified as amended at 8\n U.S.C. \u00a7 1103 Statutory Notes: Improvement of Barriers at Border)\nSenseney Decl. Declaration of Christopher T. Senseney, PhD. P.E. (Dkt. 3-3)\n\n\n\n vi\n\f Case 1:26-cv-02127-RJL Document 50-1 Filed 08/27/26 Page 8 of 36\n\n\n\n\nTr. Transcript of Motion Hearing Held Before the Honorable Judge Richard\n J. Leon, United States District Judge (July 22, 2026)\nU.S. ICC Br. United States\u2019 Requested Findings of Fact, Objections to Petitioner\u2019s\n Proposed Findings of Fact, and Brief, Papago Tribe of Ariz. v. United\n States, Docket No. 345 (Ind. Cl. Comm. 1965) (Dkt. 3-15 at PDF pp.\n 80\u2013194)\n\n\n\n\n vii\n\f Case 1:26-cv-02127-RJL Document 50-1 Filed 08/27/26 Page 9 of 36\n\n\n\n\n INTRODUCTION\n\n Pursuant to Federal Rule of Civil Procedure 62(d) and Federal Rule of Appellate\n\nProcedure 8(a)(1)(C), the Tohono O\u2019odham Nation (\u201cNation\u201d) moves for an injunction to\n\npreserve the status quo pending appeal. The requested injunction would prohibit the Secretary\n\nfrom engaging in or directing activity (including by designated contractors) in furtherance of the\n\nconstruction of a border wall or related infrastructure on the Nation\u2019s Reservation. The Nation\n\nhas filed a Notice of Appeal (Dkt. 48) from this Court\u2019s denial of its Motion for Preliminary\n\nInjunction and is filing a Motion for Expedited Appeal in the D.C. Circuit, which the United\n\nStates has consented to and which asks the Circuit to enter a briefing schedule that will conclude\n\non October 21, 2026. Under Circuit practice, if the motion to expedite is granted, oral argument\n\nwill likely take place by early November. As the government \u201cdoes not anticipate construction\n\nactivities starting prior to October 12, 2026,\u201d Memorandum Opinion (Dkt. 45) (\u201cMem. Op.\u201d) at 5\n\n(citation omitted), the injunction would pause such activities for only a brief period of time\n\nbefore the Circuit issues a decision.\n\n The Court denied the Nation\u2019s request for a preliminary injunction on August 14, 2026.\n\nMem. Op. In filing this Motion, the Nation is not asking the Court to reconsider that denial. To\n\nprevail on the Motion, the Nation need not show that it is likely to succeed on the merits of its\n\nclaims, but rather that it has at least raised serious legal questions going to its entitlement to\n\nrelief. As discussed below, it plainly has. The Nation must further demonstrate that it would\n\nsuffer irreparable harm absent the injunction and that such harm would outweigh the harm to the\n\nSecretary during the time-limited period that the injunction is in effect. Because the Nation can\n\nlikewise make these showings, an injunction pending appeal is warranted.\n\n\n\n\n 1\n\f Case 1:26-cv-02127-RJL Document 50-1 Filed 08/27/26 Page 10 of 36\n\n\n\n\n The government plainly feels emboldened by the Court\u2019s order. Within hours of its\n\nissuance, James Percival, General Counsel for the Department of Homeland Security\n\n(\u201cDepartment\u201d), publicly proclaimed:\n\n\n\n\nJames Percival (@DHSGenCounsel), X (Aug. 14, 2026, at 1:14 PM). 1 These declarations that\n\n\u201cRESISTANCE IS FUTILE\u201d and that \u201c[t]his wall is getting built\u201d presume that this Court\u2019s\n\npreliminary injunction ruling is its final word in this case, and they elide entirely the role of the\n\nappellate courts in the judicial process. They portend the same no-holds-barred approach to\n\nconstruction that the Secretary has taken elsewhere even while significant litigation is ongoing.\n\n Recently at Big Bend National Park, for example, with the legality of construction still\n\nhighly unsettled and in contravention of a promise not to act without ample notice, the Secretary\n\nsent bulldozers into the Park that \u201cripped through mesquite trees and brush and leveled the\n\nground for more than a mile of what appeared to be a future roadway.\u201d J. David Goodman,\n\nTrump Backed Away from a Wall at Big Bend. But the Bulldozers Are Here., The New York\n\n\n\n\n1\n https://x.com/DHSGenCounsel/status/2088313210797441387.\n 2\n\f Case 1:26-cv-02127-RJL Document 50-1 Filed 08/27/26 Page 11 of 36\n\n\n\n\nTimes (Aug. 15, 2026). 2 CBP Commissioner Scott dismissed the activity as mere \u201csurvey and\n\ndesign work.\u201d Id.; see also Texas Monthly, supra note 2.\n\n Even more to the point, on August 25, the Department sent a convoy of federal officers\n\nand contractors onto the Nation\u2019s Reservation before dawn. The Department notified the Nation\n\nat 4:59 a.m. that the contractors \u201cwill begin identifying drill sites at 0500 hours, with\n\ngeotechnical testing operations scheduled to begin at 1100 hours.\u201d Third Decl. of Riyaz A. Kanji\n\n(\u201cThird Kanji Decl.\u201d) \u00b6 2 & Attach. A at 1. In that same notice, the Department invited the\n\nNation \u201cto have cultural monitors present\u201d (for work that would begin one minute hence) and\n\nstated that these overtures reflected \u201cCBP\u2019s commitment to ongoing coordination\u201d with the\n\nNation. Id. at 2. Such an assertion makes a mockery of this Court\u2019s admonition that the\n\ngovernment \u201cfollow through on its guarantees of consultation and cooperation with the Nation,\u201d\n\nMem. Op. 18. The Secretary has chosen instead to engage in a show of force, with his\n\ncontractors trespassing on the Reservation and federal officers taking it upon themselves to\n\nblockade Nation roads. Infra pp. 9\u201312. An injunction pending appeal would forestall disastrous\n\nconsequences for the Nation by ensuring that the serious legal claims it has raised receive due\n\nconsideration by the Circuit prior to irreversible actions by the Secretary and his contractors.\n\n Nor will a brief delay in construction unduly harm the Secretary. Indeed, the Secretary\n\nhas already agreed to indefinitely \u201cpaus[e]\u201d construction activities in Big Bend\u2014a 118-mile span\n\nof the border\u2014following the public outcry about the Secretary\u2019s damaging construction\n\nactivities, as well as political pressure from Texas\u2019s governor. Rebecca Santana, Trump\n\n\n\n\n2\n https://www.nytimes.com/2026/08/15/us/border-big-bend-\ntexas.html?unlocked_article_code=1.7FA.oXsp.OzFG4PyUaYQX&smid=url-share; see also\nTexas Monthly, Photos: Construction Begins in Big Bend National Park (Aug. 12,\n2026), https://www.texasmonthly.com/news-politics/big-bend-border-wall-photos/.\n 3\n\f Case 1:26-cv-02127-RJL Document 50-1 Filed 08/27/26 Page 12 of 36\n\n\n\n\nAdministration Briefly Pauses Contentious Border Project in Texas\u2019 Big Bend National Park,\n\nAP (Aug. 17, 2026). 3 And as Secretary Mullin has recently put it, the \u201cborder is CLOSED to\n\nlawbreakers.\u201d Press Release, U.S. Dep\u2019t of Homeland Sec. (July 16, 2026). 4 Federal data support\n\nthese claims. 5 And this is as true for the Nation\u2019s southern boundary\u2014where robust border\n\nsecurity measures are in place under active cooperation between the Nation and the United\n\nStates\u2014as it is elsewhere along the international border. 6 A brief pause in wall-related activity\n\non the Reservation accordingly will allow the D.C. Circuit to address the serious legal questions\n\nraised by this case without causing significant injury to the Secretary, all while forestalling\n\nactions that, once taken, will make it impossible to vindicate the Nation\u2019s rights. 7\n\n ARGUMENT\n\nI. Standard of Review\n\n To obtain an injunction pending appeal under Federal Rule of Civil Procedure 62(d), a\n\nmovant must show \u201cthe same four criteria as a motion for preliminary injunction,\u201d except that it\n\nmay \u201cremedy a lesser showing of likelihood of success on the merits with a strong showing as to\n\nthe other three factors, provided that the issue on appeal presents a \u2018serious legal question\u2019 on the\n\n\n\n\n3\n https://bit.ly/trump_border_big_bend_national_park_immigration.\n4\n https://www.dhs.gov/news/2026/07/16/trump-administration-delivers-14-straight-months-zero-\nreleases-border.\n5\n See Camilo Montoya-Galvez, Illegal Crossings Along U.S.-Mexico Border Plummet to Lowest\nAnnual Level Since 1970, CBS News (Oct. 7, 2025), https://www.cbsnews.com/news/illegal-\ncrossings-immigration-us-mexico-southern-border-lowest-level-1970-trump-dhs/ (stating that\naccording to Department data, \u201c[u]nlawful crossings along the U.S.-Mexico border in fiscal year\n2025 plummeted to the lowest annual level since the early 1970s\u201d).\n6\n See U.S. Customs and Border Prot., Southwest Land Border Encounters (By Component)\nhttps://www.cbp.gov/newsroom/stats/southwest-land-border-encounters-by-component (showing\n62% decrease in migrant encounters in Tucson Sector and average 63.7% decrease for entire\nborder between FY2025 and FY 2026).\n7\n The Secretary has declined to consent to this motion or to consider any pause on construction-\nrelated activities during the pendency of an appeal.\n 4\n\f Case 1:26-cv-02127-RJL Document 50-1 Filed 08/27/26 Page 13 of 36\n\n\n\n\nmerits.\u201d Cigar Ass\u2019n of Am. v. U.S. Food and Drug Admin., 317 F.Supp.3d 555, 560 (D.D.C.\n\n2018) (citing Wash. Metro. Area Transit Comm\u2019n v. Holiday Tours, Inc., 559 F.2d 841, 842\u201344\n\n(D.C. Cir. 1977)); Heritage Found. v. Dep\u2019t of Just., No. 24-cv-645 (DLF), 2026 WL 1770708,\n\nat *1 (D.D.C. June 19, 2026) (same). 8 \u201cThus, the court may \u2026 issue an injunction pending\n\nappeal if a \u2018serious legal question is presented, ... little if any harm will befall other interested\n\npersons or the public, and ... denial of the order would inflict irreparable injury on [Plaintiffs].\u2019\u201d\n\nCigar Ass\u2019n, 317 F.Supp.3d at 560\u201361 (quoting Holiday Tours, 559 F.2d at 844 (ellipses and\n\nbrackets in original)); Neurelis, Inc. v. Califf, Case No. 24-cv-1576 (APM), 2025 WL 1010222,\n\nat *2 (D.D.C. Mar. 19, 2025) (same); see also Heritage Found., 2026 WL 1770708, at *1 (\u201c[A]\n\nRule 62(d) injunction may be appropriate, even if the Court believes its analysis in denying\n\npreliminary injunctive relief is correct.\u201d (citation modified)).\n\nII. Serious Legal Questions Exist as to the Merits of the Nation\u2019s Trespass Claim.\n\n The Nation has at the very least raised \u201cserious legal question[s],\u201d Cigar Ass\u2019n, 317\n\nF.Supp.3d at 560, regarding its trespass claim that warrant Circuit review before it is too late.\n\nWhile this Court has described the Nation\u2019s trespass claim as \u201ca fallback,\u201d Mem. Op. 14, the\n\nNation has never presented it as subordinate to its ultra vires claim. It in fact sought to argue\n\ntrespass first at the preliminary injunction hearing, Tr. at 5:4, given the certainty that the\n\nSecretary will need to engage in irreversible acts of trespass on the Nation\u2019s lands to carry out\n\nhis border wall plans.\n\n\n\n\n8\n While the Court in Cigar Association referred to Rule 62(c), that rule is now found in\nsubsection (d). See Fed. R. Civ. P. 62 advisory committee\u2019s notes to 2018 amendments\n(\u201cSubdivisions (a), (b), (c), and (d) of former Rule 62 are reorganized \u2026. There is no change in\nmeaning.\u201d).\n 5\n\f Case 1:26-cv-02127-RJL Document 50-1 Filed 08/27/26 Page 14 of 36\n\n\n\n\n A. A Serious Legal Question Exists Regarding the Secretary\u2019s Sovereign\n Immunity to the Nation\u2019s Trespass Claim.\n\n The D.C. Circuit has squarely held that \u201cthe Larson-Dugan [rule allowing for suits\n\nagainst federal officers] is triggered\u201d where \u201cdefendants acted outside of the scope of their duty\n\n\u2026 imposed by the common law,\u201d Schilling v. U.S. House of Representatives, 102 F.4th 503, 506\n\n(D.C. Cir. 2024); see also Leopold v. Manger, 102 F.4th 491, 495 (D.C. Cir. 2024) (\u201c[S]overeign\n\nimmunity does not prevent an injunction against a state officer who abridges a common law duty\n\nwithout statutory authorization.\u201d). In its preliminary injunction ruling, this Court noted that these\n\ncases do not deal directly with trespass claims and stated that, \u201c[a]s far as I can tell, no court has\n\nextended \u2026 Larson-Dugan\u201d to them. Mem. Op. 15. But by the same token, the Secretary has\n\ncited no case rejecting application of the rule to trespass claims. And given that no such case\n\nexists, the Nation has at the very least raised a serious question that a rule framed broadly in\n\nterms of all common law claims applies to the common law claim of trespass. See Leopold, 102\n\nF.4th at 496 (that a claimant \u201calleges a violation of federal common law does not foreclose\n\napplication of the Larson-Dugan exception\u201d). Nor does this Court\u2019s ruling account for the\n\nSupreme Court\u2019s recent and similarly broad affirmation that a plaintiff \u201cmay sue in equity\n\nwithout a congressionally-provided cause of action to prevent an injurious act by a [federal]\n\npublic officer,\u201d Trump v. Cook, 609 U.S. ___, 2026 WL 1855613, at *11 n.2 (June 29, 2026)\n\n(citation modified); Nation Reply 15, which further underscores the availability of common law\n\nclaims against federal officers. The Circuit should have the opportunity to consider the scope of\n\nits Larson-Dugan precedents before the Secretary\u2019s bulldozers and detonators descend on the\n\nReservation.\n\n\n\n\n 6\n\f Case 1:26-cv-02127-RJL Document 50-1 Filed 08/27/26 Page 15 of 36\n\n\n\n\n Indeed, 50 years ago, Congress reaffirmed that the United States may not assert sovereign\n\nimmunity over claims such as the Nation\u2019s. In 1976, Congress enacted 5 U.S.C. \u00a7 702, which\n\nprovides in relevant part:\n\n An action in a court of the United States seeking relief other than money damages\n and stating a claim that an agency or an officer or employee thereof acted or\n failed to act in an official capacity or under color of legal authority shall not be\n dismissed nor relief therein be denied on the ground that it is against the United\n States or that the United States is an indispensable party.\n\nTo prevail on sovereign immunity, in other words, the Secretary must make one of three\n\narguments. He must argue [1] that the Nation has not sued \u201cin a court of the United States.\u201d Or\n\nhe must argue [2] that the Nation is in fact \u201cseeking \u2026 money damages.\u201d Or he must argue [3]\n\nthat the Nation\u2019s suit is not brought against him based on conduct \u201cin an official capacity or\n\nunder color of legal authority.\u201d Because the Secretary cannot succeed on any of these arguments,\n\nhe is not immune from suit.\n\n Although it is true that \u00a7 702 appears in the APA, \u00a7 702\u2019s \u201cwaiver of sovereign immunity\n\napplies to any suit whether under the APA or not,\u201d Chamber of Com. of U.S. v. Reich, 74 F.3d\n\n1322, 1328 (D.C. Cir. 1996); see also Trudeau v. Fed. Trade Comm\u2019n, 456 F.3d 178, 186 (D.C.\n\nCir. 2006). And although the Secretary has waived application of the APA pursuant to his\n\nauthority \u201cto waive all legal requirements \u2026 necessary to ensure expeditious construction of\n\n[border] barriers,\u201d IIRIRA Section 102(c)(1); see Determination Pursuant to Section 102 of\n\nIIRIRA, as Amended, 73 Fed. Reg. 19078-01, 19080 (Apr. 8, 2008) (waiving \u201cthe\n\nAdministrative Procedure Act (5 U.S.C. 551 et seq.)\u201d), \u00a7 702\u2019s waiver of sovereign immunity is\n\nnot a \u201clegal requirement[]\u201d to which an agency must adhere. The Secretary may bypass laws that\n\ntypically dictate how the agency operates\u2014but he may not strip this Court of jurisdiction to\n\ndecide the Nation\u2019s claim.\n\n\n\n 7\n\f Case 1:26-cv-02127-RJL Document 50-1 Filed 08/27/26 Page 16 of 36\n\n\n\n\n B. A Serious Legal Question Exists as to Whether the Nation Has a Trespass\n Cause of Action Against Federal Officials.\n\n This Court further concluded that \u201cthe availability of a federal common law trespass\n\nclaim by an Indian tribe against the federal government is at best uncertain\u201d because the Nation\n\n\u201chas not identified any [such] case[.]\u201d Mem. Op. 15\u201316. But once again, the Secretary has not\n\nidentified a countervailing decision, and as a matter of first principles it is entirely unclear why\n\ntribal nations should lack the same common law protections against trespasses by federal\n\nofficials that they possess with respect to trespasses by others. Nation Reply 11\u201315.\n\n Indeed, the Supreme Court has held that \u201cthe Indians\u2019 common-law right to sue\u201d for\n\ntrespass \u201cis firmly established.\u201d Cnty. of Oneida v. Oneida Indian Nation, 470 U.S. 226, 233\n\n(1985). In coming to that conclusion, the Court did not carve out federal officials; if anything, it\n\nintentionally included them. As an example of the applicable federal common law, the Oneida\n\nCourt cited Edwardsen v. Morton, 369 F.Supp. 1359 (D.D.C. 1973)\u2014a case brought \u201cagainst\n\nfederal officers\u201d \u201cfor trespass,\u201d id. at 1378\u201379; see also Oneida, 470 U.S. at 236 n.6 (describing\n\nEdwardsen as \u201cupholding [a] trespass action\u201d). And Edwardsen could hardly have been clearer\n\nin scope. See 369 F.Supp. at 1378\u201379 (explaining that \u201ca cause of action for trespass\u201d lies\n\n\u201cagainst federal officers\u201d \u201c[i]f plaintiffs were in fact disturbed in their use and occupancy\u201d); id.\n\nat 1371 (reiterating that \u201cthe officers are themselves liable in trespass\u201d if they ignore the tribe\u2019s\n\nrights). Dicta or no, the Supreme Court has understood Edwardsen as the Nation does; at the\n\nvery least, Oneida\u2019s unequivocal statement presents a serious legal question as to the merits of\n\nthe Nation\u2019s claim against the Secretary. The Circuit should have the opportunity to consider that\n\nclaim before the Secretary and his agents trespass yet again on the Nation\u2019s land.\n\n\n\n\n 8\n\f Case 1:26-cv-02127-RJL Document 50-1 Filed 08/27/26 Page 17 of 36\n\n\n\n\n C. A Serious Legal Question Exists as to Whether the Secretary\u2019s Planned\n Conduct Will Constitute Trespass.\n\n Third and finally with respect to the Nation\u2019s trespass claim, this Court concluded that\n\n\u201csignificant uncertainties remain about the actual scope of construction activities and the extent\n\nto which they may interfere with the Nation\u2019s lands outside the Roosevelt Reservation\u201d because\n\nthe \u201c\u2018contractor has been instructed to confine the project footprint \u2026 to the 60-foot federal\n\nRoosevelt Reservation,\u2019\u201d Mem. Op. 16 (ellipsis in original) (citing Enriquez Decl. \u00b6 13).\n\n To begin, a serious legal question exists regarding whether the Roosevelt Reservation lies\n\nacross the Nation\u2019s southern boundary, and hence whether there is any area where the Secretary\n\nor his contractors can engage in wall construction and related activities without trespassing on\n\nthe Nation\u2019s lands. To avoid duplicative briefing, the Nation addresses that issue in its ultra vires\n\ndiscussion (as did the Court) and incorporates it here. See infra pp. 13\u201315.\n\n But even if the Roosevelt Reservation exists along the Nation\u2019s border, the \u201csignificant\n\nuncertainties\u201d the Court referenced regarding the scope of contractor activity have matured into\n\ncertainty. There is no question that the Secretary and his contractors will need to trespass on the\n\nNation\u2019s lands to carry out the construction of the border wall on the Nation\u2019s Reservation\u2014\n\nindeed, they already have, and show every intention of continuing. Between August 10 and\n\nAugust 12, 2026, Nation law enforcement personnel encountered at least eleven contractor\n\nvehicles on the Reservation with the intent of engaging in border-wall-related activity\n\n(principally geotechnical borings as a prelude to wall construction). Each vehicle was more than\n\nsixty feet from the southern border, and at least one was discovered in trespass on the Nation\u2019s\n\nroads outside any valid right of way. Second Decl. of James Cook (\u201cSec. Cook Decl.\u201d) \u00b6\u00b6 2\u20136.\n\nThere are no means by which contractors can access the border through the Reservation without\n\nusing private roads to which the federal government does not have a right-of-way agreement for\n\n 9\n\f Case 1:26-cv-02127-RJL Document 50-1 Filed 08/27/26 Page 18 of 36\n\n\n\n\nborder wall construction purposes, Decl. of Beverly Matthews (\u201cMatthews Decl.\u201d) \u00b6 16, and\n\nhence even those contractors encountered on public roads were set on committing acts of\n\ntrespass.\n\n Only three public roads lead to the southern portion of the Reservation from State\n\nHighway 86 (the main east-west corridor across the Reservation): BIA Routes 1, 19, and 21. Id.\n\n\u00b6\u00b6 7\u20138. The public rights of way on these roads terminate well north of the border. Id. \u00b6\u00b6 9\u201311.\n\nFrom these public rights of way, the Department uses private roads\u2014including one road called\n\nthe Traditional Northern Road (TNR), which \u201cruns roughly parallel to the international border\n\nfor most of its duration,\u201d id. \u00b6 12, and two north-south connector roads from BIA Routes 1 and\n\n19, id. \u00b6\u00b6 9, 11\u2014to access and patrol the border. The Department does so with the knowledge\n\nand consent of the Nation. The Department also uses the two connector roads and the TNR to\n\naccess ten surveillance towers whose presence on the southern boundary of the Reservation the\n\nNation has consented to, subject to the narrow terms and conditions of a 2019 Integrated Fixed\n\nTower (IFT) Agreement. Ehlerman Decl. \u00b6\u00b6 3\u20134 & Attach. A. In addition to tower-site access\n\nrights, the IFT Agreement grants the Department a limited right-of-way on the two connector\n\nroads and the TNR \u201c\u2018for construction, maintenance, operation and repair of portions of the\n\nTraditional Northern Road, including necessary and related improvements to that road, such as\n\ndrainage culverts, low-water crossings, and signage.\u2019\u201d Matthews Decl. \u00b6 14. The easement is\n\nexplicitly limited to this \u201c\u2018purpose above specified\u2019\u201d and provides that the Department must\n\nnegotiate with the Nation \u201c\u2018as necessary to authorize CBP\u2019s use of Nation\u2019s lands outside of the\n\n\u2026 easement for rights of way identified in this Agreement.\u2019\u201d Id. \u00b6 15.\n\n Accordingly, even if this Court were correct in concluding that the Roosevelt Reservation\n\nlikely exists, it is plainly not possible for the Secretary\u2019s contractors to confine their border wall\n\n\n\n 10\n\f Case 1:26-cv-02127-RJL Document 50-1 Filed 08/27/26 Page 19 of 36\n\n\n\n\nactivities to it, as they cannot even reach the border for purposes unconsented to by the Nation\n\nwithout trespassing across Nation lands. The contract entered into between the Secretary and his\n\ncontractor for the border wall project\u2014which the government did not produce to the Court or the\n\nNation until after the preliminary injunction hearing and the Nation\u2019s submission of its post-\n\nhearing brief\u2014seemingly recognizes the lack of any legal right of access across the Reservation.\n\nIt provides that \u201c[n]o [interior Reservation] roads are currently approved for accessing the\n\nproject area\u201d and that \u201cthe contractor shall not assume they will be permitted to access the\n\nproject location from the North through the Tohono O\u2019odham Reservation.\u201d McMullen Decl.\n\nPDF p. 18 \u00a7 8.2. Rather, the contract requires that contractors access the Reservation \u201cfrom the\n\nRoosevelt Reservation corridor on either the West or East[.]\u201d Id. But there is no road access to\n\nthe disputed sixty-foot strip at either its east or west end because those areas are bounded by\n\nrugged mountain peaks with no roads. Matthews Decl. \u00b6 2. The contractors accordingly would\n\nhave to blast their way through the mountains in order to establish road access, and it is fanciful\n\nto think that they can do so while staying within sixty feet of the border. Senseney Decl. \u00b6\u00b6 24\u2013\n\n32. The very contract that the Court pointed to as suggesting that the Secretary and his\n\ncontractors might not trespass on the Nation\u2019s lands in fact undermines that suggestion.\n\n All of this notwithstanding, in the early morning hours of August 25, 2026, a convoy of\n\ncontractors and CBP officials descended on the Nation, providing the Nation with one minute of\n\nnotice before commencing the process of conducting geotechnical borings in anticipation of wall\n\nconstruction. Supra p. 3; Sec. Cook Decl. \u00b6 8. The convoy traveled down the Route 19 connector\n\nroad, which again is not public, and then eastward on the TNR, which again is not public, to\n\nreach the boring sites (which are within the disputed sixty-foot corridor). Id. \u00b6\u00b6 8\u20139.\n\nRemarkably, when the Nation\u2019s interim police chief and other law enforcement officers sought to\n\n\n\n 11\n\f Case 1:26-cv-02127-RJL Document 50-1 Filed 08/27/26 Page 20 of 36\n\n\n\n\ntravel along the TNR for the sole purpose of monitoring the drilling activities, they were stopped\n\nat a roadblock established by Border Patrol. Id. \u00b6 9. The interactions that ensued were thankfully\n\nprofessional, and Border Patrol \u201callowed\u201d the Nation\u2019s officers to observe the drilling activity,\n\nid., but it was never their permission to grant in the first instance. The ability of the Nation\u2019s law\n\nenforcement officers to use the Nation\u2019s roads is now being controlled and impaired by\n\nDepartment officers who are authorized to be on those roads for only limited purposes\u2014\n\npurposes that decidedly do not include border wall construction or impeding Nation law\n\nenforcement. The severity of the trespass could not be clearer.\n\n And leaving aside access, uncontroverted evidence establishes that the construction of the\n\nwall cannot be confined to within sixty feet of the border. See Nation Suppl. Mem. 6\u20137 (citing\n\ntestimony of Nation\u2019s expert that the leveling and blasting of mountains along the path of the\n\nborder wall, the establishment of equipment staging areas and concrete batching plants, and the\n\nbuilding of access roads will all require the Secretary\u2019s contractors to go well beyond sixty feet\n\nfrom the border, see Senseney Decl. \u00b6\u00b6 14\u201319, 24\u201332, 35); Enriquez Decl. \u00b6 26 (nowhere\n\ndenying that construction of even a single wall will require blasting through \u201cfour particular\n\nmountainous locations\u201d); id. \u00b6 20 (acknowledging potential for staging areas ranging \u201c300\u2013400\n\nfeet north of the border\u201d). Indeed, counsel for the Secretary forthrightly acknowledged at the\n\npreliminary injunction hearing that \u201cif you \u2026 restrict us to the 60-foot zone, then you\u2019ve got\n\ndifficult engineering challenges ahead of you[.]\u201d Tr. at 19:18\u201320. The Court\u2019s decision declines\n\nto impose any such restriction on the Secretary, leaving the Nation at the mercy of the\n\nSecretary\u2019s resolution of his engineering challenges. The Circuit should have the opportunity to\n\nconsider the Nation\u2019s claims before the Secretary takes actions\u2014many of which promise to be\n\nhighly destructive\u2014that cannot then be undone.\n\n\n\n 12\n\f Case 1:26-cv-02127-RJL Document 50-1 Filed 08/27/26 Page 21 of 36\n\n\n\n\nIII. Serious Legal Questions Exist as to the Merits of the Nation\u2019s Ultra Vires Claim.\n\n A. The Nation Has Raised a Serious Question as to Whether the Roosevelt\n Reservation Extends Across its Southern Boundary.\n\n This Court held that the Nation is unlikely to succeed on the merits of its ultra vires\n\nclaim in part because \u201cthe Roosevelt Reservation likely exists along the international border.\u201d\n\nMem. Op. 11. Again, the Nation does not ask the Court to reverse that determination but instead\n\nto conclude that the Nation has at least raised serious questions regarding it.\n\n By its terms, the Roosevelt Reservation is confined to \u201cpublic lands,\u201d Proclamation of\n\nMay 27, 1907, 35 Stat. 2136, 2136. It is undisputed\u2014as the United States acknowledged in the\n\nICC proceedings, see Nation Mem. 26\u201331, and has not disputed here\u2014that the Nation held\n\naboriginal title to the lands that became its Reservation when the Roosevelt Reservation was\n\nproclaimed in 1907. In United States v. Santa Fe Pacific Railroad Co., 314 U.S. 339 (1941), the\n\nSupreme Court addressed whether certain lands in Arizona fell within a statutory grant to a\n\nrailroad of a \u201cright of way through the public lands,\u201d Act of July 27, 1866, ch. 278, \u00a7 2, 14 Stat.\n\n292, 294, and squarely held that if the tribe had aboriginal title at the time of the grant, then those\n\nlands were not public and \u201cunless extinguished survived the railroad grant of 1866.\u201d Santa Fe,\n\n314 U.S. at 345; see also, e.g., Bardon v. N. Pac. R.R. Co., 145 U.S. 535, 538 (1892) (\u201c[B]y\n\n\u2018public land,\u2019 as it has been long settled, is meant such land as is open to sale or other disposition\n\nunder general laws. All land, to which any claims or rights of others have attached, does not fall\n\nwithin the designation of \u2018public land.\u2019\u201d).\n\n This Court concluded that Santa Fe does not support the Nation\u2019s argument \u201coutright\u201d\n\nbecause the Santa Fe Court stated that certain statutes making lands within the Mexican cession\n\npart of the public domain were not \u201cconcerned \u2026 with the problem of ascertaining the\n\nboundaries of Indian country,\u201d Mem. Op. 13 (quoting Santa Fe, 314 U.S. at 351). Respectfully,\n\n 13\n\f Case 1:26-cv-02127-RJL Document 50-1 Filed 08/27/26 Page 22 of 36\n\n\n\n\nthe Court has misread the import of that passage. The opinion explains that the statutes expressly\n\nrequired \u201caction of Congress\u201d to extinguish aboriginal title after their enactment and that \u201c[w]e\n\nare not advised that Congress took any such action.\u201d 314 U.S. at 351. It further notes Congress\u2019s\n\ndirective that \u201cuntil the final action of Congress,\u201d the lands \u201cshall be reserved from sale or other\n\ndisposal by the government,\u201d id. at 350 (quoting Act of July 22, 1854, ch. 103, \u00a7 8, 10 Stat. 308,\n\n309). Accordingly, \u201c[t]hese acts did not extinguish any Indian title based on aboriginal\n\noccupancy,\u201d id., and the language quoted by this Court is in fact a rejection of the railroad\u2019s\n\nargument that they did. See also id. (distinguishing a \u201cquite different\u201d statute under which lands\n\nin California subject to Indian title became \u201c\u2018part of the public domain of the United States\u2019\u201d\n\n(quoting Act of Mar. 3, 1851, ch. 41, \u00a7 13, 9 Stat. 631, 633)). And even if there were any\n\nambiguity in this regard, there is no gainsaying that Santa Fe at the very least provides serious\n\nsupport for the Nation\u2019s position.\n\n The materials relied on by the Court, Mem. Op. 11\u201313, do not undermine that support.\n\nFor example, far from deeming the Nation\u2019s territory to be public lands, Solicitor Margold\n\nconcluded that the Nation held those lands under \u201can Indian right of occupancy\u201d subject to\n\nfederal protection, Margold Op. at PDF 13, which is the same form of title that Santa Fe held not\n\nto fall within a grant of public lands to a railroad, see 314 U.S. at 345\u201347. And while the 1968\n\nICC opinion posits that the lands of the Mexican cession became public lands by virtue of the\n\nAct of July 22, 1854, Santa Fe states that \u201cwe do not agree that \u2026 [the 1854] Act instituted a\n\npolicy of non-recognition of Indian title. Nor do we think that it effected any extinguishment of\n\nthat title\u201d so as to bring the lands within the terms of the 1866 railroad grant, 314 U.S. at 348.\n\nThere is at the very least a serious question as to whether dicta from an ICC opinion should be\n\n\n\n\n 14\n\f Case 1:26-cv-02127-RJL Document 50-1 Filed 08/27/26 Page 23 of 36\n\n\n\n\ncredited when the Supreme Court has addressed the very same statute and come to the opposite\n\nconclusion.\n\n Finally, the Court referenced the 1937 statute that added lands to the Nation\u2019s\n\nreservation. Mem. Op. 12 (citing Act of July 28, 1937, ch. 527, 50 Stat. 536). But that statute\n\nspeaks of the Roosevelt Reservation in agnostic terms and in any event was limited to the 1937\n\nland addition. See Nation Reply 8\u201310. In the far more contemporaneous Act of May 25, 1918,\n\nch. 86, 40 Stat. 561, Congress authorized a fence for Nation cattle raising right up to the\n\ninternational border along the entire 1917 southern boundary, Nation Mem. 7\u20138 & n.3; Nation\n\nReply 5\u20136, a use in direct conflict with the Roosevelt Reservation\u2019s restriction that the lands\n\nreserved by it \u201cmay be used for public highways but for no other purpose whatever,\u201d 35 Stat. at\n\n2137 (emphasis added). It is at the very least difficult to square the conclusion that the Roosevelt\n\nReservation likely exists on the Nation\u2019s Reservation with Congress\u2019s contemporary facilitation\n\nof contrary uses. The Circuit should have the opportunity to address that interplay, and to do so\n\nbefore the Secretary and his contractors engage in irreversible acts on the Nation\u2019s lands.\n\n B. A Serious Legal Question Exists Regarding Whether the Secretary\u2019s Border\n Wall Would Change the Nation\u2019s Reservation Boundary.\n\n This Court concluded that even if the Roosevelt Reservation does not exist at the\n\nNation\u2019s southern boundary, it is \u201cnot aware of any case holding that construction of a border\n\nwall adjacent to a Reservation\u2014with the possibility of activities that may interfere with the\n\nNation\u2019s use and occupancy rights\u2014necessarily diminishes the Reservation\u2019s boundaries\u201d and\n\nnoted that even \u201cthe establishment of non-Indian towns, or the sale of property to non-Indians,\n\ndoes not change the reservation status of the lands.\u201d Mem. Op. 13\u201314 (citing Seymour v.\n\nSuperintendent of Wash. State Penitentiary, 368 U.S. 351, 358\u201359 (1962)). But in Nebraska v.\n\nParker, 577 U.S. 481 (2016), the Court identified as among the \u201challmarks of diminishment\u201d\n\n 15\n\f Case 1:26-cv-02127-RJL Document 50-1 Filed 08/27/26 Page 24 of 36\n\n\n\n\nfederal action \u201cto extinguish the land\u2019s prior use \u2026 as an Indian reservation\u2014and \u2026 set [it]\n\naside for other public purposes,\u201d 577 U.S. at 489. That is precisely what the Secretary proposes\n\nto do here. He has identified no conceivable \u201cuse \u2026 as an Indian reservation\u201d the Nation could\n\nmake of the lands along its southern boundary if they are buried forever beneath the Secretary\u2019s\n\nsteel walls or the new federally controlled roads adjacent to them. Nor is that question any less\n\nserious because the affected lands comprise a relatively small portion of the Nation\u2019s\n\nReservation. Section 398d prohibits \u201c[c]hanges in the boundaries of reservations\u201d absent an act\n\nof Congress, 25 U.S.C. \u00a7 398d (emphasis added), leaving no room for a judicial determination as\n\nto what degree of change might nevertheless be permissible.\n\n In addition, Seymour raises more questions than it answers. While Seymour held that an\n\nact authorizing the sale of lands did not diminish the reservation in question, it did not purport to\n\nestablish a categorical rule. Rather, it is well-established that some such acts \u201cdiminished\n\nreservations and other[s] \u2026 did not,\u201d Solem v. Bartlett, 465 U.S. 463, 469 (1984) (citations\n\nomitted); see, e.g., Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 588 (1977) (holding that act that\n\n\u201copened the land for settlement \u2026 diminished the boundaries of the Reservation\u201d). In Seymour,\n\nthe sale of lands to non-Indians was held not to accomplish diminishment because: (1) it was\n\nspecifically intended to \u201copen the way for non-Indian settlers to own land on the reservation in a\n\nmanner which the Federal Government, acting as guardian and trustee for the Indians, regarded\n\nas beneficial to the development of its wards,\u201d 368 U.S. at 356; and (2) the lands at issue were\n\nscattered throughout the interior of the reservation, which would have resulted in \u201can impractical\n\npattern of checkerboard jurisdiction\u201d if diminishment were found, id. at 358. Neither of those\n\nfactors applies here, such that Seymour by itself does not resolve the diminishment question in\n\nthis case.\n\n\n\n 16\n\f Case 1:26-cv-02127-RJL Document 50-1 Filed 08/27/26 Page 25 of 36\n\n\n\n\n While it is true that the Secretary argued that \u201c\u2018constructing a border barrier is not the\n\ntype of action that could change the status or boundaries of a reservation,\u2019\u201d Mem. Op. 14\n\n(quoting Sec\u2019y Suppl. Mem. 5), the basis for the Secretary\u2019s argument is faulty. The Secretary\u2019s\n\nargument rests on the contention that \u201c[i]t is not the practical effect of the federal action but its\n\nlegal effect that matters,\u201d and since only Congress has the legal authority to diminish a\n\nReservation, no executive branch action (regardless of the extent of the deprivation of a tribe\u2019s\n\nrights) can ever do so, Sec\u2019y Mem. 18. That is a sweeping proposition, and one that raises\n\nnumerous questions, including whether its acceptance would eviscerate the bedrock separation of\n\npowers command that \u201conly Congress can divest a reservation of its land and diminish its\n\nboundaries and its intent to do so must be clear,\u201d Parker, 577 U.S. at 488\u201389 (citation modified),\n\nand in the process render \u00a7 398d a nullity. Section 398d, after all, specifically contemplates that\n\nanother branch might act to change a reservation\u2019s boundaries without congressional\n\nauthorization, and Congress does not legislate to prohibit the impossible.\n\n Once again, the Circuit should have the opportunity to address these highly consequential\n\nissues before the Secretary and his contractors begin reshaping the Nation\u2019s southern boundary.\n\nIV. The Nation Will Suffer Irreparable Harm Absent an Injunction.\n\n The Nation has identified four categories of irreparable harm that it will suffer if the\n\nSecretary moves forward with his plans: the loss of sovereign control over its lands; the loss of\n\nproprietary control; environmental injury; and interference with First Amendment freedoms.\n\nNation Mem. 41\u201343. The Nation has set forth considerable case law establishing each category\n\nas a quintessential form of irreparable harm, see id. at 41\u201343; Nation Suppl. Mem. 9\u201310, and\n\nneither this Court nor the Secretary has seriously disputed that they so qualify.\n\n\n\n\n 17\n\f Case 1:26-cv-02127-RJL Document 50-1 Filed 08/27/26 Page 26 of 36\n\n\n\n\n This Court, however, concluded that \u201cPlaintiff\u2019s alleged harms based on its claim to the\n\nland leading up to the international border are not likely to materialize because \u2026 the Roosevelt\n\nReservation likely exists along the Nation\u2019s border, and defendants have not yet articulated plans\n\nto construct outside the Roosevelt Reservation.\u201d Mem. Op. 17. But the D.C. Circuit has\n\nexplained that \u201c[w]ithin the irreparable harm analysis itself\u2014which assumes, without deciding,\n\nthat the movant has demonstrated a likelihood that the non-movant\u2019s conduct violates the law\u2014\n\nwe examine only whether that violation, if true, inflicts irremediable injury.\u201d Chaplaincy of Full\n\nGospel Churches v. England, 454 F.3d 290, 303 (D.C. Cir. 2006) (emphasis added); see also,\n\ne.g., A.B.-B. v. Morgan, 548 F.Supp.3d 209, 221 (D.D.C. 2020) (Leon, J.) (\u201c[T]he Court must\n\nassume plaintiffs\u2019 likelihood of success on the merits when assessing whether irreparable harm\n\nexists.\u201d (citing Chaplaincy, 454 F.3d at 303)). Assuming\u2014as precedent requires\u2014that the\n\nRoosevelt Reservation does not exist at the Nation\u2019s southern boundary and that the Secretary\u2019s\n\nplanned wall will diminish that boundary in violation of Section 398d, there is no question that\n\nthe Nation would suffer irreparable injury if the Secretary can move forward with his plans\n\nunchecked.\n\n This is likewise true if one assumes\u2014as precedent again requires\u2014that the Secretary\n\ncannot confine the actions of his contractors to the asserted Roosevelt Reservation. The Secretary\n\nhas not contested that the blasting and leveling of mountain peaks that lie along the border\n\ncannot be confined to within sixty feet of the border, Enriquez Decl. \u00b6\u00b6 20, 26, and the Nation\n\nhas likewise adduced highly credible expert testimony that the Secretary will need to go well\n\nbeyond the corridor to build staging areas, concrete batching plants, and access roads, Senseney\n\nDecl. \u00b6\u00b6 14\u201319, 24\u201332, 35. The resulting environmental destruction and affront to the Nation\u2019s\n\nsovereignty and proprietary interests again qualify as quintessential forms of irreparable harm,\n\n\n\n 18\n\f Case 1:26-cv-02127-RJL Document 50-1 Filed 08/27/26 Page 27 of 36\n\n\n\n\nand this is no less true by virtue of the suggestion that the harms might be \u201cmitigated through\n\n[federal] consultation with the Nation and accommodations, such as crossing gates to enable\n\nmembers of the Nation to access the international border,\u201d Mem. Op. 17. No number of gates\n\nand no amount of consultation will reduce the harms from the blasting and leveling of mountain\n\npeaks and transformation of unsullied lands into roads and staging areas. The Secretary has not\n\nwavered in his stated intent to build a wall along the entire sixty-two-mile length of the Nation\u2019s\n\nsouthern boundary, nor has he denied that significant bulldozing and blasting will be required in\n\nthe process. See Enriquez Decl. \u00b6 26. \u201cEnvironmental injury, by its nature, can seldom be\n\nadequately remedied by money damages and is often permanent or at least of long duration, i.e.,\n\nirreparable.\u201d Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545 (1987). That such injury\n\nwill occur here absent an injunction is nothing less than a certainty.\n\nV. The Equities Strongly Favor an Injunction Pending Appeal.\n\n This Court has thus far determined that the equities weigh against injunctive relief. Mem.\n\nOp. 17\u201318. However, that determination was made in the context of the Nation\u2019s motion for a\n\npreliminary injunction. The instant motion seeks an injunction only until the conclusion of the\n\nNation\u2019s appeal, which the Nation is moving to expedite. If the Nation\u2019s proposed schedule (to\n\nwhich the Secretary has consented) is adopted, the requested injunction would preserve the status\n\nquo for only a short period while the Circuit deliberates. See supra p. 1.\n\n \u201c[T]he Government\u2019s interests in securing the border, enforcing immigration laws, and\n\nensuring public safety,\u201d Mem. Op. 17, will not be impaired by preserving the status quo for such\n\na limited time. Indeed, the Secretary has recently agreed to pause construction on other portions\n\nof the border wall at the behest of other governmental actors\u2014although only after extensive\n\ndamage had been done.\n\n\n\n 19\n\f Case 1:26-cv-02127-RJL Document 50-1 Filed 08/27/26 Page 28 of 36\n\n\n\n\n At Big Bend National Park, for example, the Secretary had entered into a written\n\nagreement to refrain from \u201cground disturbing activities\u201d without thirty days\u2019 prior notice to\n\nplaintiffs challenging the wall. Joint Mot. for Scheduling Order at 4, Friends of the Ruidosa\n\nChurch v. Mullin, Case No. 3:26-cv-01099-KC (W.D. Tex. June 22, 2026). But in early August,\n\nwithout providing the agreed-upon notice, Pls.\u2019 Emergency Mot. for a TRO or Prelim. Inj. at 4,\n\nFriends of the Ruidosa Church, the Secretary deployed bulldozers and excavators within the\n\nPark that \u201cripped through mesquite trees and brush and leveled the ground for more than a mile\n\nof what appeared to be a future roadway.\u201d Goodman, supra note 2; see also Texas Monthly,\n\nsupra note 2. While CBP Commissioner Scott sought to dismiss the activity as mere \u201c\u2018survey\n\nand design work,\u2019\u201d Goodman, supra note 2; see also Texas Monthly, supra note 2, it included\n\n\u201ctwo different staging areas and one active worksite,\u201d Declaration of Laiken Jordahl \u00b6 5, Friends\n\nof the Ruidosa Church, with \u201croad construction equipment and a steamroller,\u201d id., and \u201can active\n\nbulldozer and excavator carving into a hillside,\u201d id. \u00b6 7. Images of these construction activities at\n\nBig Bend are included in Appendix A to this brief.\n\n Notably, in response to fierce criticism from both the public and the political leadership\n\nin Texas, CBP Commissioner Scott announced on August 17 that the CBP would be \u201c\u2018pausing\n\nall construction activity in Big Bend National Park while I visit and conduct a personal, on-the-\n\nground evaluation\u2019\u201d and \u201c\u2018listen to local leadership, community members and stakeholders.\u2019\u201d\n\nSantana, supra note 3. And Governor Abbott has since pronounced, after talks with the\n\nDepartment, that there will be no wall, fence, or vehicle barrier in the park. Kristian Jaime,\n\n\n\n\n 20\n\f Case 1:26-cv-02127-RJL Document 50-1 Filed 08/27/26 Page 29 of 36\n\n\n\n\nAbbott Cites DHS Commitment to Block Border Wall at Big Bend, El Paso Times (Aug. 20,\n\n2026). 9\n\n Unlike the parties to the Big Bend litigation, the Nation cannot invoke any agreement\n\nwith the Secretary to protect it from the immediate commencement of construction activities.\n\nThe Nation is fully dependent on this Court and the appellate courts to vindicate its federal\n\nrights. But absent an injunction, the Secretary has already demonstrated his willingness to move\n\nforward in a manner that will destroy those rights before they receive full judicial consideration.\n\n The empirical evidence also confirms that the Secretary and the public will not be harmed\n\nby a brief pause in construction. At the preliminary injunction stage, the Secretary asserted that\n\n\u201c[t]he government\u2019s compelling interest is even stronger in the current context because of the\n\nunprecedented flood of illegal immigration that has occurred over the past several years,\u201d Sec\u2019y\n\nMem. 37 (quotation marks omitted), which he described as \u201cstaggering,\u201d id., and a \u201cmassive\n\nincrease,\u201d id. at 38. But every source the Secretary cited for that assertion reflects data from 2024\n\nand earlier. 10 As evidenced by the Secretary\u2019s own data, the \u201ccurrent context\u201d is that a massive\n\ninflux no longer exists.\n\n\n\n\n9\n https://www.elpasotimes.com/story/news/immigration/2026/08/20/texas-gov-abbott-no-border-\nwall-coming-to-big-bend-national-park/91385290007/.\n10\n See Sec\u2019y Mem. 37\u201338 (citing Exec. Order No. 14159, Protecting the American People\nAgainst Invasion, 90 Fed. Reg. 8443, 8443 (Jan. 20, 2025) (citing figures under \u201cthe prior\nadministration\u201d); House Committee on Homeland Security, \u201cCrisis by Design\u201d: A\nComprehensive Look at the Biden-Harris Administration\u2019s Unprecedented Border Crisis at 3\n(Sept. 18, 2024), https://homeland.house.gov/wp-content/uploads/2024/09/September-2024-\nBorder-Report.pdf (citing figures through FY 2024); Biden v. Texas, 597 U.S. 785, 816\u201317\n(2022) (Alito, J., dissenting) (citing figures from \u201cfiscal year 2021\u201d); Exec. Order No. 14165,\nSecuring Our Borders, 90 Fed. Reg. 8467, 8467 (Jan. 20, 2025) (citing figures from 2021\u20132024);\nHernandez v. Mesa, 589 U.S. 93, 107 (2020) (citing figures from 2019); Proclamation 10886,\nDeclaring a National Emergency at the Southern Border of the United States, 90 Fed. Reg. 8327\n(Jan. 20, 2025) (citing figures from 2021\u20132024)).\n 21\n\f Case 1:26-cv-02127-RJL Document 50-1 Filed 08/27/26 Page 30 of 36\n\n\n\n\n At the end of 2025, \u201cU.S. Border Patrol encounters with migrants crossing into the\n\nUnited States from Mexico ha[d] fallen to their lowest level in more than 50 years \u2026. The 2025\n\ntotal was the lowest in any fiscal year since 1970, according to historical data from the Border\n\nPatrol.\u201d John Gramlich, Migrant Encounters at the U.S.-Mexican Border Are at Their Lowest\n\nLevel in More than 50 Years, Pew Rsch. Ctr. (Feb. 2, 2026). 11 That trend has continued unabated\n\nthis year. In January 2026, the Department reported that \u201cAmerica\u2019s borders are safer than any\n\ntime in our nation\u2019s history\u201d and \u201cwe have a record low number of encounters at the [Southwest]\n\nborder and the 8th straight month of zero releases.\u201d Press Release, U.S. Dep\u2019t of Homeland Sec.\n\n(Jan. 16, 2026) (quotation marks omitted). 12 In February, CBP Commissioner Scott stated that\n\n\u201c\u2018Border Patrol apprehensions are down 96% from the previous administration\u2019s monthly\n\naverage[.]\u2019\u201d Press Release, U.S. Customs and Border Prot. (Feb. 18, 2026). 13 In April, the\n\nDepartment announced that \u201c[b]order encounters for first six months of the fiscal year are the\n\nlowest in recorded history,\u201d with CBP Commissioner Scott stating that \u201c\u2018[t]his isn\u2019t temporary\u2014\n\nit\u2019s the new normal.\u2019\u201d Press Release, U.S. Dep\u2019t of Homeland Sec. (Apr. 9, 2026). 14 In May, the\n\nDepartment reported that \u201cthe border remains more secure than at any point in history.\u201d Press\n\nRelease, U.S. Dep\u2019t of Homeland Sec. (May 15, 2026). 15 In June, Commissioner Scott reported\n\ncontinuing \u201c\u2018historically low illegal crossings\u2019\u201d demonstrating that \u201c\u2018[o]ur robust enforcement\n\npolicies are working, and we are delivering unprecedented results in border security, drug\n\n\n\n\n11\n https://www.pewresearch.org/short-reads/2026/02/02/migrant-encounters-at-the-us-mexico-\nborder-are-at-their-lowest-level-in-more-than-50-years/.\n12\n https://www.dhs.gov/news/2026/01/16/usbp-records-zero-releases-eighth-consecutive-month.\n13\n https://www.cbp.gov/newsroom/national-media-release/one-year-most-secure-border-history.\n14\n https://www.dhs.gov/news/2026/04/09/trump-administration-delivers-11-straight-months-\nzero-releases-border.\n15\n https://www.dhs.gov/news/2026/05/15/trump-administration-delivers-full-year-zero-releases-\nborder.\n 22\n\f Case 1:26-cv-02127-RJL Document 50-1 Filed 08/27/26 Page 31 of 36\n\n\n\n\ninterdiction, and trade enforcement[.]\u2019\u201d Press Release, U.S. Dep\u2019t of Homeland Sec. (June 19,\n\n2026). 16 And in July, the unabated trends led the Department to declare that \u201c[w]ith daily\n\napprehensions down 94% from the previous administration, the border remains more secure than\n\nat any point in history,\u201d and Secretary Mullin to pronounce simply that \u201c\u2018[o]ur border is\n\nCLOSED to lawbreakers.\u201d Press Release, U.S. Dep\u2019t of Homeland Sec. (July 16, 2026). 17\n\n These trends are no different at the Nation\u2019s southern boundary, where the Nation and the\n\nUnited States continue to cooperate extensively on robust border security measures. Mem. Op. 4.\n\nThe CBP reports a 62% decrease in border encounters in the Tucson Sector between FY 2025\n\nand FY 2026, virtually identical to the average 63.7% decrease for the entire border for that same\n\nperiod. Supra note 6; see also, e.g., Matt Loeschman, Border Crossings in Arizona Fall\n\nDramatically, The Daily Independent (July 14, 2026) (reporting that \u201c[a]fter years of record-\n\nbreaking migrant crossings, Arizona\u2019s southern border is experiencing a dramatic slowdown,\u201d\n\nincluding \u201can 88% decrease\u201d between FY 2024 and FY 2025 \u201caccording to data from U.S.\n\nCustoms and Border Protection\u201d and that \u201c[t]he recent decline marks one of the sharpest year-\n\nover-year decreases in border apprehensions in recent history\u2026. Border agents are encountering\n\nfewer migrants, shelters that once struggled to accommodate daily arrivals have seen demand\n\nease, and local officials are adjusting to a landscape that looks far different from the record-\n\nsetting migration surges of just two years ago\u201d). 18 See also Cook Decl. \u00b6 21.\n\n\n\n16\n https://www.dhs.gov/news/2026/06/19/trump-administration-delivers-13-straight-months-\nzero-releases-border.\n17\n https://www.dhs.gov/news/2026/07/16/trump-administration-delivers-14-straight-months-\nzero-releases-border. The government\u2019s assessment in August is the same. See Press Release,\nU.S. Dep\u2019t of Homeland Sec. (Aug. 13, 2026), https://www.dhs.gov/news/2026/08/13/trump-\nadministration-delivers-15-straight-months-zero-releases-border (announcing \u201c15 consecutive\nmonths of zero releases at the border, continuing the unprecedented trend of historically low\nborder crossings\u201d).\n18\n https://www.yourvalley.net/stories/border-crossings-in-arizona-falling-dramatically,704478.\n 23\n\f Case 1:26-cv-02127-RJL Document 50-1 Filed 08/27/26 Page 32 of 36\n\n\n\n\n With this context in mind, the Secretary will be guilty of serious exaggeration if he\n\nclaims that he will suffer significant harm from a short-term preservation of the status quo on the\n\nReservation\u2014with the proposed pause indeed paling in comparison to the Secretary\u2019s decision to\n\nmaintain the status quo indefinitely at Big Bend.\n\n By contrast, the harm to Nation will be severe absent the requested relief. The\n\nDepartment, which has declared that its \u201cauthority is beyond dispute\u201d and the Nation\u2019s resistance\n\nis \u201cFUTILE,\u201d has already begun flooding the Reservation with contractors engaged in substantial\n\npreparatory work. See supra pp. 2. In the Secretary\u2019s view, nothing exists to prevent the\n\nDepartment from aggressively moving forward while the Nation\u2019s claims remain pending, and\n\nthe Department has indeed demonstrated a pattern of doing just that. The bulldozers in Big Bend,\n\ndiscussed above, are hardly an outlier. The Nation has firsthand experience with the destruction\n\nthat the Secretary and his contractors have caused in their haste to build the border wall. Nation\n\nMem. 16 (describing, for example, the very recent destruction\u2014just to the east of the\n\nReservation\u2014of a portion of the Las Playas Intaglio, which was created by O\u2019odham ancestors\n\nat least a thousand years ago.) In Presidio County, Texas, despite ongoing litigation, a federal\n\ncontractor \u201cillegally cleared over a mile of state land,\u201d Press Release, Tex. Gen. Land Off. (Jul.\n\n31, 2026), 19 with \u201cheavy construction equipment,\u201d Alejandro Santos Cid, Texas Land\n\nCommissioner Orders Feds to Stop \u201cIllegally\u201d Clearing State Border Tract, The Tex. Trib. (July\n\n31, 2026), 20 removing \u201call vegetation in its path,\u201d id., and causing \u201cextensive damage\u201d to the\n\nstate-leased grazing lands, Letter from Dawn Buckingham, Comm\u2019r, Tex. Gen. Land Off., to\n\n\n\n\n19\n https://www.glo.texas.gov/about-glo/press-releases/dont-tread-texas-commissioner-\nbuckingham-orders-federal-contractors-cease.\n20\n https://www.texastribune.org/2026/07/31/texas-border-wall-cbp-cease-and-desist-presidio-\ncounty/.\n 24\n\f Case 1:26-cv-02127-RJL Document 50-1 Filed 08/27/26 Page 33 of 36\n\n\n\n\nBarnard Construction (July 31, 2026). 21 An \u201cirreplaceable\u201d archeological site has already been\n\nrazed, with a new access road running right through its core. Zoe Kurland, Big Bend Area Border\n\nWall Threatens to Destroy the Porvenir Massacre Site, Marfa Public Radio (Aug. 20, 2026). 22\n\nAn image of the damaged land from the Texas General Land Office is included in Appendix B to\n\nthis Brief. On July 31, 2026, the Texas General Land Office issued a cease and desist letter to the\n\nSecretary and his contractors, directing them to halt all excavation and construction. Letter,\n\nsupra note 21. A spokesperson for the Secretary thereafter stated that CBP is \u201cworking to resolve\n\nthis issue,\u201d Cid, supra note 20, but by then the damage had already been done. A temporary\n\npause is warranted to ensure that the Nation\u2019s lands do not suffer the same fate.\n\n * * *\n\n As the Court recognized at the preliminary injunction hearing, \u201c[t]his is a novel case with\n\nnovel issues of great significance\u201d to both the United States and the Nation. Tr. at 32:19\u201320. The\n\nNation shares the government\u2019s border security objectives. But an assertion by the executive\n\nbranch that it may blast and bulldoze and permanently dispossess a sovereign tribe of its lands\n\nabsent Congress\u2019s assent is unprecedented in the modern era. The judiciary\u2019s resolution of this\n\ncase will have sweeping implications for the Nation, and for tribes across the country. Because\n\nserious legal questions exist as to whether the Secretary\u2019s planned activities are consistent with\n\nfederal law, and because the harms that will befall the Nation absent issuance of an injunction\n\npending appeal far outweigh any injury to the Secretary from granting one, the modest relief the\n\nNation seeks here is amply warranted.\n\n\n\n\n21\n https://www.glo.texas.gov/sites/default/files/2026-\n07/letters.pdf?utm_medium=email&utm_source=govdelivery.\n22\n https://www.marfapublicradio.org/news/2026-08-20/big-bend-area-border-wall-threatens-to-\ndestroy-the-porvenir-massacre-site.\n 25\n\f Case 1:26-cv-02127-RJL Document 50-1 Filed 08/27/26 Page 34 of 36\n\n\n\n\n CONCLUSION\n\n The Nation respectfully requests that this Court grant its Motion for Injunction Pending\n\nAppeal.\n\n\n\n\n 26\n\f Case 1:26-cv-02127-RJL Document 50-1 Filed 08/27/26 Page 35 of 36\n\n\n\n\nDated: August 27, 2026 Respectfully submitted,\n\n /s/ Riyaz A. Kanji\nHoward M. Shanker, D.C. Bar 426359* Riyaz A. Kanji, D.C. Bar 455165\nAttorney General David A. Giampetroni*\nLogan Takao Cooper* KANJI & KATZEN, P.L.L.C.\nAssistant Attorney General P.O. Box 3971\nTOHONO O\u2019ODHAM NATION Ann Arbor, MI 48106\nP.O. Box 830 (734) 769-5400\nSells, AZ 85634 rkanji@kanjikatzen.com\nHoward.Shanker@tonation-nsn.gov dgiampetroni@kanjikatzen.com\nLogan.Cooper@tonation-nsn.gov\n Philip H. Tinker*\n KANJI & KATZEN, P.L.L.C.\n 12 N. Cheyenne Ave., Ste. 220\n Tulsa, OK 74103\n (206) 344-8100\n ptinker@kanjikatzen.com\n\n Counsel for Plaintiff Tohono O\u2019odham Nation\n\n\n\n*Pro Hac Vice Admission\n\n\n\n\n 27\n\f Case 1:26-cv-02127-RJL Document 50-1 Filed 08/27/26 Page 36 of 36\n\n\n\n\n CERTIFICATE OF SERVICE\n I certify that on August 27, 2026, this document was served on all parties or their counsel\n\nof record through the CM/ECF system if they are registered users or, if they are not, by placing a\n\ntrue and correct copy in the United States mail, postage prepaid, to their address of record.\n\n /s/ Riyaz A. Kanji\n Riyaz A. Kanji\n\f","ocr_status":1,"date_upload":"2026-08-27T22:04:09.958090-07:00","document_number":"50","attachment_number":1,"pacer_doc_id":"045012309122","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Memorandum in Support","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/491661026/","id":491661026,"tags":[],"absolute_url":"/docket/73493770/50/2/tohono-oodham-nation-v-mullin/","date_created":"2026-08-27T20:11:56.232195-07:00","date_modified":"2026-09-10T13:19:32.953549-07:00","sha1":"93999c03ea7358213815bf9166a99e45457e7dcc","page_count":10,"file_size":2021705,"filepath_local":"recap/gov.uscourts.dcd.293593/gov.uscourts.dcd.293593.50.2.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.dcd.293593/gov.uscourts.dcd.293593.50.2.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 1:26-cv-02127-RJL Document 50-2 Filed 08/27/26 Page 1 of 10\n\n\n\n\n APPENDIX A:\n\n EXAMPLES OF BORDER WALL CONSTRUCTION ACTIVITY IN BIG BEND NATIONAL PARK\n\n\n Figure 1: Federal Contractors Clearing Road and Altering Landscape, Laiken Jordahl\n Video (at timestamp 0:02) 1\n\n\n\n\n1\n Declaration of Laiken Jordahl \u00b6 9, Friends of the Ruidosa Church v. Mullin, Case No. 3:26-cv-\n01099-KC (W.D. Tex. June 22, 2026),\nhttps://drive.google.com/file/d/1CmEuhJEPKNS3EpHsgsPvMdXWTrdd_yIP/view?usp=sharing\n&t=2.\n\n 1\n\f Case 1:26-cv-02127-RJL Document 50-2 Filed 08/27/26 Page 2 of 10\n\n\n\n\n Figure 2: Federal Contractors Moving Earth, Laiken Jordahl Video (at timestamp 0:11) 2\n\n\n\n\n2\n Supra note 1, https://drive.google.com/file/d/11y7bK-\nrcTEciQWQydgjY86mwWEWoEHA5/view?usp=sharing&t=11.389.\n\n 2\n\f Case 1:26-cv-02127-RJL Document 50-2 Filed 08/27/26 Page 3 of 10\n\n\n\n\n Figure 3: Construction Work Near Santa Elena Canyon in Big Bend National Park 3\n\n\n\n\n3\n The Guardian, \u2018Devastating\u2019: Bulldozers Plough Through Big Bend National Park as Trump\u2019s\nBorder Work Pushes Ahead (Aug. 14, 2026), https://www.theguardian.com/us-\nnews/2026/aug/14/bulldozers-big-bend-national-park-trump.\n\n 3\n\f Case 1:26-cv-02127-RJL Document 50-2 Filed 08/27/26 Page 4 of 10\n\n\n\n\n Figure 4: Contractors Working in Big Bend National Park 4\n\n\n\n\n4\n J. David Goodman, Border Construction in Big Bend Is Halted After Drawing Criticism, The\nNew York Times (Aug. 17, 2026), https://www.nytimes.com/2026/08/17/us/big-bend-border-\nwall-texas-construction.html.\n\n 4\n\f Case 1:26-cv-02127-RJL Document 50-2 Filed 08/27/26 Page 5 of 10\n\n\n\n\n Figure 5: Construction Equipment Moving Earth in Big Bend National Park 5\n\n\n\n\n5\n Texas Monthly, Photos: Construction Begins in Big Bend National Park (Aug. 12, 2026),\nhttps://www.texasmonthly.com/news-politics/big-bend-border-wall-photos/.\n\n\n\n 5\n\f Case 1:26-cv-02127-RJL Document 50-2 Filed 08/27/26 Page 6 of 10\n\n\n\n\n Figure 6: Construction Crews Uprooting Vegetation in Big Bend National Park (at\n timestamp 0:06-0:10) 6\n\n\n\n\n6\n Natalie Newman (@ntlnwmn), Instagram (Aug. 17, 2026),\nhttps://www.instagram.com/ntlnwmn/reel/DcJ2AwrtSe8/.\n\n 6\n\f Case 1:26-cv-02127-RJL Document 50-2 Filed 08/27/26 Page 7 of 10\n\n\n\n\nFigure 7: Bulldozer Clears Vegetation in Big Bend National Park (at timestamp 0:00-0:05) 7\n\n\n\n\n7\n Supra note 6.\n\n 7\n\f Case 1:26-cv-02127-RJL Document 50-2 Filed 08/27/26 Page 8 of 10\n\n\n\n\nFigure 8: Bulldozer Altering Landscape at Santa Elena Canyon in Big Bend National Park\n (at timestamp 0:11-0:15) 8\n\n\n\n\n8\n Supra note 6.\n\n 8\n\f Case 1:26-cv-02127-RJL Document 50-2 Filed 08/27/26 Page 9 of 10\n\n\n\n\n APPENDIX B:\n\n EXAMPLES OF BORDER WALL CONSTRUCTION IN PRESIDIO COUNTY\n\n Figure 1: Federal Contractors Operating Without Permission of Texas General Land\n Office (GLO) 9\n\n\n\n\n9\n Mary Cantrell, Texas Officials Order Contractor on Big Bend Area Border Wall to Halt Land\nClearing, Marfa Public Radio (July 31, 2026), https://www.tpr.org/border-immigration/2026-07-\n31/texas-officials-order-contractor-on-big-bend-area-border-wall-to-halt-land-clearing.\n\n 9\n\f Case 1:26-cv-02127-RJL Document 50-2 Filed 08/27/26 Page 10 of 10\n\n\n\n\n Figure 2: Federal Contractors Clearing Texas GLO Leased Land Without Permission 10\n\n\n\n\n10\n Supra note 9.\n\n 10\n\f","ocr_status":1,"date_upload":"2026-08-27T22:04:10.547861-07:00","document_number":"50","attachment_number":2,"pacer_doc_id":"045012309123","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Appendix A & B","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/491661027/","id":491661027,"tags":[],"absolute_url":"/docket/73493770/50/3/tohono-oodham-nation-v-mullin/","date_created":"2026-08-27T20:11:56.255497-07:00","date_modified":"2026-09-10T13:19:32.981385-07:00","sha1":"8a25ec97df9a9d77c50bfcfe8d3ef4d432621f9a","page_count":31,"file_size":8321164,"filepath_local":"recap/gov.uscourts.dcd.293593/gov.uscourts.dcd.293593.50.3.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.dcd.293593/gov.uscourts.dcd.293593.50.3.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 1:26-cv-02127-RJL Document 50-3 Filed 08/27/26 Page1of31\n\nTHE UNITED STATES DISTRICT COURT\nFOR THE DISTRICT OF COLUMBIA\n\nTOHONO O\u2019ODHAM NATION,\na federally recognized Indian tribe,\n\nPlaintiff, Case No. 26-cv-2127-RJL\nV.\n\nMARKWAYNE MULLIN, in his official\ncapacity as Secretary of U.S. Department of\nHomeland Security, RODNEY SCOTT, in his\nofficial capacity as Commissioner of U.S.\nCustoms and Border Protection; and\nROSARIO VASQUEZ, in his official\ncapacity as Chief of U.S. Border Patrol,\n\nDefendants.\n\nSECOND DECLARATION OF JAMES COOK\n\nI, James Cook, declare the following on the basis of personal knowledge to which I am\ncompetent to testify:\n\n1. My name is James Cook, and I am the Interim Chief of the Tohono O\u2019 odham\nNation Police Department (\u201cTOPD\u201d or \u201cDepartment\u2019\u201d). In my capacity as Interim Chief, I\noversee the operations of the Nation\u2019s sworn police officers and its civilian ranger division,\nincluding receiving and reviewing the incident reports filed by officers and rangers following\nlaw enforcement encounters in the field.\n\n2. Between August 10 and August 12, 2026, Tohono O\u2019odham police officers and\nrangers had encounters with at least eleven different contractors who entered onto the Nation\u2019s\n\nReservation to conduct border wall construction-related activities without the Nation\u2019s consent.\n\fCase 1:26-cv-02127-RJL Document 50-3 Filed 08/27/26 Page 2of 31\n\nIt is the Department\u2019s understanding that, because there are no public rights-of-way running all\nthe way to the Nation\u2019s border, and because the Nation has not given consent for any border wall\ncontractors to traverse private Nation lands and roads to reach the border, each of these\ncontractors was either in trespass on the Nation\u2019s lands or would have necessarily needed to\ntrespass across the Nation\u2019s lands in order to reach their stated destinations along the Nation\u2019s\nborder.\n\n3. On August 10, 2026, at approximately 0900 hours (9 am MST), TOPD Ranger\nKopcsik encountered three vehicles driven by contractors identified as being associated with\nMade in the Shade LLC. The three vehicles were traveling along the Traditional Northern Road\n(a private tribal road that is not open to public transit) near the New Fields Community in the\nChukut Kuk District, which runs roughly parallel to the border more than 60 feet north of the\ninternational boundary. The driver of one of the vehicles identified himself as the owner of Made\nin the Shade and acknowledged that he was part of a five-vehicle operation to tag cacti along the\nvehicle barrier in preparation for border wall construction. Ranger Kopcsik informed the\nvehicle\u2019s driver that the contractors were trespassing on Nation lands and escorted two of the\nthree vehicles to Bureau of Indian Affairs (BIA) Route 19 with instructions to leave the\nReservation. The third vehicle originally spotted by Ranger Kopcsik drove away before he was\nable to make contact. Ranger Kopcsik subsequently investigated the vehicles\u2019 route through the\nNation\u2019s lands based upon their tire tracks and discovered that the vehicles entered the\nReservation through the east via the Traditional Northern Road. Attachment A is a true and\ncorrect copy of Incident Report No. 260810056, Ranger Kopcsik\u2019s written report recounting this\n\nincident.\n\fCase 1:26-cv-02127-RJL Document 50-3 Filed 08/27/26 Page 3of 31\n\n4. On August 11, 2026, TOPD Officers Bambrough and Flores initiated a stop of a\nvehicle for lacking a visually displayed license plate near milepost 145 along public Highway 86\nin the Schuck Toak District on the Reservation. During this encounter, the individuals identified\nthemselves as contractors with a company called JTECH and acknowledged that they were on\nthe Reservation in connection with border wall construction activities. The officers informed the\nvehicle\u2019s driver that they did not have the Nation\u2019s permission to access the border for\nconstruction-related activities and directed them to leave the Reservation.\n\n5. On August 12, 2026, at approximately 0930 hours (9:30 am MST), TOPD\nLieutenant Henry and TOPD Rangers Leonard and Porter received a call from a tribal member\nregarding contractor activity in the vicinity of the border. Responding to this call, the officers\nencountered six contractor vehicles belonging to five separate entities parked on BIA Route 19 in\nthe Chukut Kuk District on the Reservation, approximately one mile north of the border and just\nnorth of the point where the public right-of-way terminates before reaching it. These vehicles\nbelonged to Ean Holding LLC (2 vehicles); Made in the Shade Environmental LLC;\nDiamondback Land Surveying LLC; Rudolph Chevrolet LLC; and SLSCVO Ltd. A Border\nPatrol agent from the Tucson Sector Office was present with the contractors in his own\ngovernment vehicle. Officer Henry informed the contractors that they were not authorized to\naccess the border for construction-related activities, issued them a warning regarding the\nNation\u2019s trespass laws, and escorted the vehicles to Highway 86, from which they departed to the\neast. Attachment B is a true and correct copy of Incident Report No. 260810066, Officer\nHenry\u2019s and Rangers Leonard\u2019s and Porter\u2019s written reports recounting this incident.\n\n6. On August 12, 2026, at approximately 1607 hours (4:07 pm MST) TOPD Rangers\n\nKopcsik and Gonzalez encountered a vehicle with three individuals. The vehicle was traveling\n\fCase 1:26-cv-02127-RJL Document 50-3 Filed 08/27/26 Page 4of 31\n\non the public right-of-way near Mile Marker 12 on BIA Route 21 in the Pisinemo District on the\nReservation. The three individuals in the vehicle informed the officers that they were contractors\nwith JP Industries Inc., that they were working with Border Patrol, and that they were on their\nway to the border. The rangers determined that the contractors lacked permits to be present or\noperate on the Reservation for any authorized purpose and that it would be unsafe to proceed to\nthe border from their location due to localized flooding conditions. The rangers instructed the\nindividuals to leave the Reservation. Attachment C is a true and correct copy of Incident Report\nNo. 260812085, Ranger Gonzalez\u2019s written report recounting this incident.\n\n7. Additionally, on August 8, 2026, my office received a call from an individual who\nis known to us as a contractor working on Reservation roads maintenance. This contractor\ninformed us that vehicles associated with a company called Geo Tech had been sighted\ncollecting soil samples along the border within the Reservation during the week of August 3.\n\n8. During the early morning hours of August 25, 2026, TOPD began receiving\nreports from Nation officials and Reservation residents that Border Patrol units and contractors\nwere entering the Reservation. At approximately 0530 hours (5:30 AM MST), TOPD Sergeant\nGonzalez observed numerous Border Patrol agents, who were dressed in tactical gear and\nwearing face masks, in vehicles escorting contractors with drilling equipment traveling\nsouthward on Route 19 towards the border. Around 1100 hours (11:00 AM MST), TOPD\nAssistant Chief Shaulis, Information Technology Specialist Ramon, and I proceeded to the\nborder to follow up on these reports.\n\n9. When we reached the Traditional Northern Road (which parallels the border) and\nheaded east along it from the San Miguel Gate, we encountered an unmarked Border Patrol\n\nvehicle that was occupying the entirety of the road and traveling between 5 and 10 miles per\n\fCase 1:26-cv-02127-RJL Document 50-3 Filed 08/27/26 Page 5of31\n\nhour. This vehicle did not permit us to pass and continued driving at this slow speed for more\nthan four miles. Eventually, the Border Patrol vehicle pulled over and allowed us to pass. Less\nthan one mile later, we encountered a roadblock on the Traditional Northern Road consisting of\nthree Border Patrol vehicles. Two of these vehicles came out to meet us, and we then spoke with\nthree Border Patrol Supervisors: two from Border Patrol\u2019s Three Points Station in Tucson, and\none from the Border Patrol Tactical Unit\u2014 Border Patrol\u2019s elite tactical and special operations\nunit. I informed these officers that we were with the Tohono O\u2019odham Police Department and\nhad come to investigate reports of contractor activity along the border. After I had assured the\nofficers that we would not attempt to interfere with the contractor activities and only wished to\nmonitor and record what was happening, they allowed us to proceed.\n\n10. Proceeding toward the active work areas, we encountered three separate drilling\nrigs stationed at various points along the border. Two of these drilling rigs were in operation,\nwith approximately three or four individuals operating each rig. A third rig was not actively in\noperation when we observed it. At each of these work sites, we observed a number of contractor\nvehicles parked along the Traditional Northern Road and on undisturbed grass and shrub land\nadjacent to the Traditional Northern Road, all more than 60 feet north of the border.\n\n11. | We also observed approximately three or four Border Patrol agents standing\nguard at each drilling site, as well as Border Patrol agents stationed approximately every quarter-\nmile between the three drilling sites, and a number of Border Patrol agents engaged in roving\npatrols around the area. Altogether there were approximately 20 Border Patrol agents present and\n\nactive at that time.\n\fCase 1:26-cv-02127-RJL Document 50-3 Filed 08/27/26 Page 6of 31\n\n12. We also encountered three BIA officers from the Tucson Sector drug unit, who\ninformed us that they had been dispatched to the Reservation pursuant to orders coming from\nWashington, D.C. and that they were there to \u201cpreserve the peace and monitor activities.\u201d\n\nI declare under penalty of perjury that the foregoing is true and correct.\n\nDated this 27th day of August, 2026\n\nJames Cook\n\nJames Cook\nChief of Police\nTohono O\u2019 odham Nation Police Department\n\nSignature: (James Cook\n\nJames Cook (Aug 27, 2026 11:25:20 PDT)\nEmail: james.cook@tonation-nsn.gov\n\fCase 1:26-cv-02127-RJL Document 50-3 Filed 08/27/26 Page 7 of 31\n\nATTACHMENT A\n\fCase 1:26-cv-02127-RJL Document 50-3 Filed 08/27/26 Page 8of 31\n\nTOHONO O'ODHAM NATION POLICE\nDEPARTMENT\n\nIncident Report for 260810056\n\nALLL SS LE LTE, ae TL SE Fee See PEE ee ee\nNature: Security Check Address: E BOARDER RD\n\nLocation: 13\n\nOffense Codes: 2625 Statute Codes:\nReceived By: DARA GARCIA How Received: O Agency: TOPD\nResponding Officers: B KOPCSIK\nResponsible Officer: B KOPCSIK Disposition: 08/10/26\n\nWhen Reported: 08:57:41 08/10/26 Occurred Between: 08:57:41 08/10/26 and 08:57:41 08/10/26\n\nAssigned To: Detail: Date Assigned: **/**/**\nStatus: Status Date: **/**/** Due Date: **/**/**\nComplainant: TOPD\nLast: Tohono O'odham First: Mid:\nPolice Dept\nDOB: @kpetpre Dr Lie: Address: P.O.BOX 189\nRace: Sex: Phone: (520)383-3275 City: SELLS, AZ 85634\nOffense Codes\nReported: Observed:\nAdditional Offense: 2625 Trespassing\nStatute Codes\nAdditional Statute:\nCircumstances\nResponding Officers: Unit :\nB KOPCSIK 411\nResponsible Officer: B KOPCSIK Agency: TOPD\nReceived By: DARA GARCIA Last Radio Logi Ark Eee omnes\nHow Received: O OFFICER REPORT Clearance: AS& A - Closed/Inactive\nWhen Reported: 08:57:41 08/10/26 Disposition: Date: 08/10/26\n\nJudicial Status:\nMisc Entry:\n\nOccurred between: 08:57:41 08/10/26\nand: 08:57:41 08/10/26\n\nBy providing this information, the Tohono O\u2019odham Nation does\nnot expressly or impliedly watve its Immunity, nor does it agree,\n\n\u2018 5 .\nCertified rejease to, Tohono O\u2019odham Police accept or otherwise submit to the personal and/or subject\nOfficial: matter of any court.\n\nby the TOPD Records Division.\n\nSee Title 1, Chapter 2. Section 2101 of the Tohono O'odham\nNation\u2019s Code.\n\n08 20/26\n\fCase 1:26-cv-02127-RJL Document 50-3 Filed 08/27/26 Page 9 of 31\n\nIncident Report for 260810056 Page 2 of 5\n\nModus Operandi: Description : Method :\n\n08 20/20\n\fCase 1:26-cv-02127-RJL Document 50-3 Filed 08/27/26 Page 10 of 31\n\nIncident Report for 260810056 Page 3 of 5\nInvolvements\n\nDate Type Description Relationship\n\n08/19/26 Name Tohono O'odham Police Dept, Complainant\n\n08/10/26 Cad Call 08:57:41 08/10/26 Security Check Initiating Call\n\n08 20\u00b026\n\fCase 1:26-cv-02127-RJL Document 50-3 Filed 08/27/26 Page 11of 31\n\nIncident Report for 260810056\n\nPage 4 of 5\n\nNarrative\n\nIR #: 260810056\n\nRanger Submitting Report: B.C. Kopesik 411\n\nOn August 10 around 0900 time, I was assigned to patrolling the U.S. Side of the\norder fence, San Miguel Gate Section (east) looking for any vehicle (S) that\nwere belonging to Private or Government Contractors attempting to work on the\nTohono O'odham Nation's Border Fence. At 950 I observed three vehicles, white\nTahoe and two white pick up trucks (2500 models). I made constant with a truck\nbearing Texas Plate XVS-8580. Second Truck identified by Az License Plate Number\nMIT5007.\n\nThe driver exited the vehicle and stated he was a part of five vehicles\nassigned to tag cactus along the border fence in preparation of the new border\nwall coming through the Nation. I was handed business card, Made in the Shade\nOwner Dan Crosby / Certified Arborist. Cell Phone 520-331-2092, Office\n520-447-6767\n\nI asked about permission paperwork for being on the Tohono O'odham Nation along\nthe border. The driver said they did but could not provide any documentation. J\ninformed him they would all have to leave at this point until things change\nlater on. I asked where the other two vehicle were. He they were on the Nation\nbut couldn't pin point where at the time. The Tahoe drove off before my\nconversation with the drive was completed so I was unable to get a license plate\nnumber. The drive complied with stating he fully understood and they were\nescorted to Federal Route 19 to leaving north bound.\n\nI went back later in the morning investigating to where these vehicles possible\ncame onto the Nation as I didn't see them earlier in the morning. Location where\nI found them was the far back section east of San Miguel Gate other high hill\nwhere it dead ends. Tire tracks indicated the vehicles traveled down from the\nnorth. I back tracked the vehicles path following to the Nation's Boundary\nBorder Fence. There was a locked gate (three brand new locks and chain) blocking\nthe roadway over to private land. A sign was hanging stating Santa Margarita\nRanch Private Property. You can clearly see the vehicle went through the gate\nfrom tire marks left behind\n\nLocked Gate Location; GPS Readings of; 31.528275 / -111.623101\nNFI.\n\nWed Aug 19 15:30:58 MST 2026\n\n08 20 26\n\fCase 1:26-cv-02127-RJL Document 50-3 Filed 08/27/26 Page 12 of 31\n\nIncident Report for 260810056 Page 5 of 5\n\nName Involvements:\n\nComplainant: TOPD\n\nLast: Tohono O'odham First: Mid:\nPolice Dept\nHeight: |\" Weight: 0) Eyes: Hair:\nDOB: **/*#*/** Dr Lie: Address: P.O.BOX 189\nRace: Sex: Phone: (520)383-3275 City: SELLS, AZ 85634\nWork Phone: () - Other Phone(s):\n\n0820.26\n\n\fCase 1:26-cv-02127-RJL Document50-3 Filed 08/27/26 Page 13 of 31\n\nATTACHMENT B\n\fCase 1:26-cv-02127-RJL Document 50-3 Filed 08/27/26 Page 14 of 31\n\nTOHONO O'ODHAM NATION POLICE\nDEPARTMENT\n\nIncident Report for 2608 12066\n\nNature: Extra Patrol Address: SB RT19\nLocation: 12\n\nOffense Codes: 2625 Statute Codes:\nReceived By: DARA GARCIA How Received: O Agency: TOPD\nResponding Officers: E PORTER, L LEONARD, L HENRY\nResponsible Officer: L HENRY Disposition: 08/12/26\n\nWhen Reported: 08:02:16 08/12/2 Occurred Between: 08:02:16 08/12/26 and 08:02:16 08/12/26\n\nAssigned To: Detail: Date Assigned: **/**/**\nStatus: Status Date: **/**/** Due Date: **/**/**\nComplainant:\nLast: First: Mid:\nDOB: **/**/** Dr Lic: Address:\nRace: Sex: Phone: City:\nOffense Codes\nReported: Observed:\n\nAdditional Offense: 2625 Trespassing\n\nStatute Codes\nAdditional Statute:\n\nCircumstances\nLT 13 Highway/Road/Alley\n\nResponding Officers: Unit :\nE PORTER 413\nL LEONARD 418\nL HENRY 423\nResponsible Officer: L HENRY Ageney: TOPD\nReceived By: DARA GARCIA Last Radio Log: ** per t* + pe*/e%\nHow Received: O OFFICER REPORT Clearance: A8 A - Closed/Inactive\nWhen Reported: 08:02:16 08/12/26 Disposition: Date: 08/12/26\n\nBy providing this information, the Tohono O'odham Nation does\nnot expressly or impliedly waive its immunity, nor does it agree,\n\nCertified release to Tohono O\u2019odham Police accept or otherwise submit to the personal and/or subject\nOfficial: Ceol We miuitter of any court.\nby the TOPD Records Division. See Title 1, Chapter 2, Section 2101 of the Tohono O'odham\n\nNation's Code. 08 20 26\n\fCase 1:26-cv-02127-RJL Document 50-3 Filed 08/27/26 Page 15 of 31\n\nIncident Report for 260812066 Page 2 of 15\nJudicial Status: Occurred between: (8:02:16 08/12/26\nMise Entry: and: 08:02:16 08/12/26\nModus Operandi: Description : Method :\n\n08 20/26\n\fCase 1:26-cv-02127-RJL Document 50-3 Filed 08/27/26 Page 16 of 31\n\nIncident Report for 260812066 Page 3 of 15\n\nInvolvements\nDate Type Description Relationship\n08/19/26 Name KOLLY, AMY KATHERINE involved on stop\n08/19/26 Name COOPER, TRACY LEE JR Involved on incident\n08/19/26 Name CARRINGTON, RYAN LYNN involved in incident\n08/19/26 Name DEATHERAGE, CHRISTOPHER AARON Involved in tncident\n08/19/26 Name CROSBY, DANIEL ALFREDO involved in incident\n08/19/26 Name ROMERO, RUBEN RAY involved in incident\n08/19/26 Name JONES, EDWARD involed in incident\n08/19/26 Name METCALF, DERRYL Involved in incident\n08/18/26 Name EAN HOLDING LLC, Involved In Incident\n08/18/26 Name MADE IN THE SHADE ENVIRONMENTAL Involved In Incident\nLUC,\n08/18/26 Name EAN HOLDING LLC, Involved In Incident\n08/18/26 Name DIAMONDBACK LAND SURVEYING LLC,, Involved In Incident\n08/18/26 Name RUDOLPH CHEVROLET LLC,, Involved In Incident\n08/18/26 Name SLSCVO LTD, 4150 PINNACLE ST.,. nvolved In ilcident\n08/18/26 Vehicle 2025 FORD F150 AZ Involved In Incident\n08/18/26 Vehicle 2024 TOYT PU MT Involved In Incident\n08/18/26 Vehicle 2024 FORD PU NV Involved In Incident\n08/18/26 Vehicle 2026 CHEV PU TX Involved In Incident\n08/18/26 Vehicle 2026 CHEV PU TX Involved In Incident\n08/17/26 Vehicle 2026 GMC PU AZ Involved In Incident\n08/12/26 Cad Call 08:02:16 08/12/26 Extra Patrol Initiating Call\n\n08 20.2\n\fCase 1:26-cv-02127-RJL Document 50-3 Filed 08/27/26 Page 17 of 31\n\nIncident Report for 260812066\n\nPage 4 of 15\n\nNarrative\nIR #: 260812066\n\nOfficer Submitting Report: Lt. Henry #423\n\nSynopsis:\n\nOn Wednesday, August 12, 2026, at approximately 0900 hours, the Tohono O' odham\nPolice Department encountered six vehicles on the Tohono O'odham Nation, in the\nChukut Kuk District, Pima County, State of Arizona. All were warned for\ntrespassing, as none were able to provided any documentation approving them to\nbe on the Nation.\n\nSummary:\n\nOn Wednesday, August 12, 2026, at approximately 0900 hours, the Tohono 0O' odham\ng\n\nPolice Department encountered six vehicles on the Tohono O'odham Nation, in the\n\nChukut Kuk District, Pima County, State of Arizona. All were warned for\ntrespassing, as none were able to provided any documentation approving them to\nbe on the Nation.\n\nNarrative:\n\nOn Wednesday, August 12, 2026, at approximately 0900 hours, the Tohono 0' odham\nPolice Department received a call from a member who reported seven work trucks\ntraveling southbound on Federal Route 19, from the Choulic Community. This\nincident occurred on the Tohono O'odham Nation, in the Baboquivari District,\nPima County, State of Arizona\n\nI responded to the call and began an attempt to locate the trucks southbound on\nFRI9. Several minutes later, I heard over the police radio, Tohono 0! odham\nPolice Rangers Leonard #418 and Porter #413 as they located the trucl\n\nUpon my arrival at Milepost 1 on FR19 at approximately 0930 hours, (note\nMilepost 1 on FR19 is located in the Chukut Kuk District). I saw several trucks\nparked along the roadway's dirt shoulder. Rangers Leonard photographed the\nvehicles' license plates and drivers' licenses information. All subjects\n\nwere informed that they were trespassing and were warned\n\nI conducted a wanted stolen check on the following vehicle license plates. None\nwere wanted or stolen.\n\nArizona License plate: CWKO770, VIN: LGTUUDED7T2Z307142, Registered Owner: Ean\nHolding LLC, 4100 W. Galveston St Ste 1, Chandler, AZ 85226. On a 2026 GMC\nSierra four-door pickup truck\n\nArizona License plate: MITSOO7, VIN: 1FTFW4L86SFB63141, Registered Owner: Made\nin the Shade Environmental LLC, 5251 E. Pima St., Tucson, AZ 85712. On a 2025\nFord) \u00a3L50 |pvekup toruck\n\nNevada License plate: DBLS15, VIN: 1FTEW2LP1RFB11515, Registered Owner:\nDiamondback Land Surveying LLC, 6140 Brent Thurman Way Ste. 230, Las Vegas, NV\n89148. On a 2024 Ford pickup truck.\n\nMontana License plate: 755224E, VIN: 3TMLBSJN9RMO39839, Registered Owner: Ean\nHolding LLC, 2177 US Highway 2 E., Kalispell, MT 59901. On a 2024 Toyota pickup\n\nELUck.\n\nTexas License plate: WXG5194, VIN: IGCUKAED6TZ111553, Registered Owner: Rudolph\n\n08 20:26\n\fCase 1:26-cv-02127-RJL Document50-3 Filed 08/27/26\n\nIncident Report for 260812066\n\nPage 18 of 31\n\nPage 5 of 15\n\nBlvd.\n\nEl Paso, TX 79932. On a\n\nCYuck.\n\n2xas ense e: KAED2T1140637, Re\n\nLtd, Pinr St 32. On a 2026 Chevy Cup\nNote: At the time of this incident all trucks were being escorted by US\nPatrol Agent Aaron Salas of the Tucson Sector Office.\n\nI then escorted all vehicles from FR19 onto Hwy 86, where they drove eas\n\nThis concludes my involvement in this matter.\n\nickup\n\nSLSCVO\n\npe\nQ\nOQ.\n\ntbound.\n\n08 20/26\n\fCase 1:26-cv-02127-RJL Document 50-3 Filed 08/27/26 Page 19 of 31\n\nIncident Report for 260812066\n\nPage 6 of 15\n\nSupplemental Narrative\nName: L LEONARD\nDate: 07:44:29 08/13/26\n\nRanger Supplemental Report\nIR #: 260812066\n\n\u00a5\n\nRanger Submitting Report: Linda L. Leonard #418\n\nNarrative: On Wednesday, August 12, 2026 @ 0930hrs Communications advised over\nradio vehicles traveling South on Route 19 by Choulic Community which is located\nin Baboquivarj District on the Tohono O' Odham Nation in Pima County, Arizona\n\nOn Wednesday August 12, 2026, Communication advised of vehicles traveling\nsouthbound on Route 19. Ranger Ernest Porter and I were stationary on Route 19\nand border road turn off. We observed a caravan of vehicles first vehicle black\nTahoe I made contact with the driver who I observed as Border Patrol Agent. He\nadvised he was escorting the group out to survey. In addition, Lt. Leonard Henry\n#423 arrived on scene to assist on call. I asked on any paperwork regarding\nbeing on the Border. At this time, I advised to pull off roadway for thei\nsafety. All vehicles pull off the gravel roadway onto pullout Spot.\n\nPersonal and vehicles, information is requested. The lead vehicle was a\n\n1. Black Tahoe with US Government plate 296489 Border Patrol Agent Aaron Salas\nTucson Sector,\n\n2. White Chevy Silverado Texas license plate WxG 5194, David Eugene,\n\nDriver license D06037348 expiration 03232030 and Joe Santiago Havier Arizona\nD02386392 expiration 7292041 was Tribal member from the Tohono O' odham Nation\ntribal ID 5925057 who is the monitor for the group,\n\n3. Montana black Tacoma license plate of 755224C with Amy Katherine Kolly\nCulture Monitor,\n\n4. White Ford DSLS15 White Silverado Texas plate XVS 8580 Tracy Lee Cooper Jr.\nand Ryan Lynn Carrington,\n\nS. White Ford DBL515 Aaron Christopher Deatherage and Alfredo Daniel Crosby,\n\n6. Ford grey Arizona license plate MITSOO7 with logo of Diamondback Land\nSurveying with Edward Jones and Derryl Metcalf with LMI Infrastructure QA/ OC\nBorder Wall Support.\n\n7. White GMC Sierra Arizona CWKO770 New Mexico driver license Ruben Ray Romero.\n\nSpoke to Agent Salas he advised his phone number was (520) 429-8705 and they\nwill headed back North on Route 19 and will be going back to the Chevron in\nThree Points Junction. All vehicle departed from the area headed North bound on\nRoute 19.\n\nNo Further.\n\n08:20:26\n\fCase 1:26-cv-02127-RJL Document 50-3 Filed 08/27/26 Page 20 of 31\n\nIncident Report for 260812066\n\nPage 7 of 15\n\nSupplemental Narrative\nName: E PORTER\nDate: 08:25:53 08/13/26\n\nRanger Supplemental Report\nIR #: 260812066\n\nRanger Submitting Report: Ernest Porter #413\n\nNarrative: On Wednesday, August 12, 2026 Ranger Linda Leonard #418 and I were\nassigned patrol on the south border of the Tohono O'odham Nation. Communications\nput out a call on vehicles heading south bound on Route 19 Choulic community,\nlocated in the Baboquivari District, in Pima County, Arizona\n\nOn Wednesday, August 12, 2026 Communications put out a call on vehicles heading\nsouth bound on Route 19. Ranger Linda Leonard #418 and I were stationary on\nRoute 19 at the border road turn off. Where we observed a caravan of vehicles.\nLeading the vehicles was a black Tahoe with a total of six vehicles following\n\nx\n\nAt this time Ranger L. Leonard # 418 exits the Ranger unit to stop the lead\nvehicle. Ranger L. Leonard #418 makes contact with the driver who was Border\nPatrol Agent, Aaron Salas from the Tucson Sector with Government license plate\n296489. The Agent advised he was escorting the group out to conduct surveys on\nthe border. Ranger Leonard #418 advised she asked if they had any docum i\nto be on the border, which they did not. The Border Patrol Agent, Aaron Salas\nwho was driving the lead vehicle was advised to pull off the roadway for their\nsafety and ours at which time all vehicles pulled off the roadway to right in a\ncleared area and all vehicles followed and parked\n\nAt this time, Lieutenant Leonard Henry # 423 arrived and pulled over behind all\nvehicles. Ranger L. Leonard #418 and I began requesting the drivers and\npassengers for personal ID and vehicle information as well as documentation to\nverify their reason to be on the Nations Border. As the personal ID and drivers\ninformation was taken, none of the drivers or passengers were able to provide\nany documentation regarding their reason to be on the Nations Border. Ranger L.\nLeonard #418 was taking photos of ID provided and vehicle licenses plates. Al]\ninformation was taken (See Ranger Linda Leonard Keport for a listing of vehicles\nand drivers information)\n\nThe Border Patrol Agent Aaron Salas advised they would be returning to Highway\n86 to exit the Nation. Lt. Leonard Henry advised he would be following the\nvehicles north bound on Route 19 to make sure they exit the Nation.\n\nAt this time Ranger L. Leonard and I continued our assignment of patrolling the\nsouthern boundary.\n\nNo Further\nThu Aug 13 08:32:53 MST 2026 E. Porter #413\n\n08 20\u00b026\n\n\fCase 1:26-cv-02127-RJL\n\nDocument 50-3\n\nIncident Report for 260812066\n\nFiled 08/27/26\n\nPage 21 of 31\n\nPage 8 of 15\n\nVehicles\nVehicle Number: 72654\nLicense Plate: MITSO07 License Type: PC Regular Passenger Automobile\nState: AZ Expires: 12/31/26\nVehicle Year: 2025 VIN: IFT FW4L86SFB63 141\nMake: FORD Ford Model: F150\nColor: / Doors: 0\nVehicle Type: PTK Passenger Truck Value: $0.00\nOwner:\nLast: MADE IN THE First: Mid:\nSHADE\nENVIRONMEN\nTAL LLC\nHeight: (\" Weight: 0 Eyes: Hair:\nDOB: **/*#/** Dr Lic: Address: 5251 E. Pima St.\nRace: Sex: Phone: () - City: TUCSON, AZ 85712\nWork Phone: () - Other Phone(s):\n\nAgency:\n\nOfficer:\n\nUCR Status:\nLocal Status:\nStatus Date:\n\nComments:\n\nTOPD TOHONO O'ODHAM POLICE\nDEPT\nL HENRY\n\nIII Involved in Incident\n08/17/26\n\nArea:\n\nDate Recov/Revd: 08/12/26\n\n13 CHUKUT\nKUK\nDISTRICT\n\nWrecker Service:\n\nRelease Date:\n\nStorage Location:\n\n08/12/26\n\nVehicle Number: 72655\nLicense Plate: 755224E License Type: PC Regular Passenger Automobile\nState: MT Expires: 08/31/26\nVehicle Year: 2024 VIN: 3TMLBSJNORM039839\nMake: TOYT Toyota Model: PU\nColor: / Doors: 0\nVehicle Type: PTK Passenger Truck Value: $0.00\nOwner:\nLast: First: Mid:\nHeight: Weight: Eyes: Hair:\nDOB: **/**/** Dr Lic: Address:\nRace: Sex: Phone: City:\n\n08 20:26\n\fCase 1:26-cv-02127-RJL Document 50-3 Filed 08/27/26 Page 22 of 31\n\nIncident Report for 260812066 Page 9 of 15\n\nWork Phone: Other Phone(s):\n\nTOPD TOHONO O'ODHAM POLICE\nDEPT\nL HENRY\n\nAgency: Date Recov/Revd: 08/12/26\n\nOfficer: Area: 13 CHUKUT\n\nUCR Status:\nLocal Status:\nStatus Date:\n\nComments:\n\n08/17/26\n\nKUK\nDISTRICT\n\nWrecker Service:\n\nStorage Location:\n\nRelease Date:\n\n08/12/26\n\nVehicle Number: 72661\nLicense Plate: DBLS1I5 License Type: PC Regular Passenger Automobile\nState: NV Expires: 10/18/26\nVehicle Year: 2024 VIN: IFTEW2LPIRFBIISIS\nMake: FORD Ford Model: PU\nColor: / Doors: 0\nVehicle Type: PTK Passenger Truck Value: $0.00\nOwner:\nLast: First: Mid:\nHeight: Weight: Eyes: Hair:\nDOB: **/*#/** Dr Lic: Address:\nRace: Sex: Phone: City:\nWork Phone: Other Phone(s):\nAgency: Date Recow/ Revd: **/**/**\nOfficer: Area:\nUCR Status: Wrecker Service:\nLocal Status: Storage Location:\nStatus Date: **/**/** Release Date: **/**/**\n\nComments:\n\nVehicle Number: 72662\nLicense Plate: WXG5194 License Type: PC Regular Passenger Automobile\nState: TX Expires: 12/30/27\nVehicle Year: 2026 VIN: IGCUBKAED6TZ111553\nMake: CHEV Chevrolet Model: PU\nColor: Doors: 0\n\n08'20:26\n\fCase 1:26-cv-02127-RJL\n\nIncident Report for 260812066\n\nDocument 50-3\n\nFiled 08/27/26\n\nPage 23 of 31\n\nPage 10 of 15\n\nVehicle Type:\n\nPTK Passenger Truck\n\nOwner:\nLast: First:\nHeight: Weight:\nDOB: **/**/** Dr Lie:\nRace: Sex: Phone:\nWork Phone: Other Phone(s):\nAgency:\nOfficer:\nUCR Status:\nLocal Status:\nStatus Date: **/**/**\n\nValue: $0.00\nMid:\nEyes: Hair:\nAddress:\nCity:\nDate Recov/Revd: **/**/**\nArea:\nWrecker Service:\nStorage Location:\nRelease Date: **/**/**\n\nComments:\n\nVehicle Number:\nLicense Plate:\nState:\n\nVehicle Year:\nMake:\n\nColor:\n\nVehicle Type:\n\nOwner:\n\n72663\n\nXVS8580,\n\nTX\n\n2026\n\nCHEV Chevrolet\n\nPTK Passenger Truck\n\nLast: First:\nHeight: Weight:\nDOB: **/*r/(* Dr Lie:\nRace: Sex: Phone:\n\nWork Phone:\n\nAgency:\nOfficer:\nUCR Status:\nLocal Status:\nStatus Date:\n\nComments:\n\nVehicle Number:\nLicense Plate:\nState:\n\nVehicle Year:\n\nOther Phone(s):\n\nok [3 [kK\n\n72653\nCWK0770\nAZ\n\n2026\n\nLicense Type:\nExpires:\nVIN:\n\nModel:\nDoors:\n\nValue:\n\nPC Regular Passenger Automobile\n03/30/28\n\n2GCUKAED2T 1140637\n\nPU\n\n0\n\n$0.00\n\nMid:\nEyes: Hair:\nAddress:\n\nCity:\n\nDate Recov/Revd:\n\nArea:\n\nWrecker Service:\nStorage Location:\n\nARK / 2 2/2\n\nRelease Date:\n\nLicense Type: TK Truck\nExpires: 06/30/27\nVIN: !GPUUDED7TZ307142\n\nO8 20 26\n\fCase 1:26-cv-02127-RJL Document 50-3 Filed 08/27/26 Page 24 of 31\n\nIncident Report for 260812066 Page 11 of 15\nMake: GMC General Motors Model: PU\nCorp\nColor: Doors: 4\nVehicle Type: PTK Passenger Truck Value: $0.00\nOwner:\nLast: EAN HOLDING First: Mid:\nLLC\nHeight: '\" Weight: 0 Eyes: Hair:\nDOB: Steaks Dr Lie: Address: 4100 W Galveston Ste #1\nRace: Sex: Phone: ()- City: Chandler. AZ 85226\nWork Phone: () - Other Phone(s):\nAgency: TOPD TOHONO O'ODHAM POLICE Date Recov/Revd: 08/12/26\nDEPT\nOfficer: L HENRY Area: 13 CHUKUT\nKUK\nDISTRICT\nUCR Status: Wrecker Service:\nLocal Status: III Involved in Incident Storage Location:\nStatus Date: 08/17/26 Release Date: 08/12/26\nComments:\n\n08 20:26\n\fCase 1:26-cv-02127-RJL\n\nIncident Report for 260812066\n\nDocument 50-3\n\nFiled 08/27/26\n\nPage 25 of 31\n\nPage 12 of 15\n\nName Involvements:\n\nInvolved In]21200\n\nIncident:\nLast:\n\nHeight:\nDOB:\nRace:\n\nWork Phone:\n\nEAN HOLDING\n\nLLC\n\nto\n4K PAR 2K\nSex:\n\n()-\n\ninvolved in127971\n\nincident:\nLast:\nHeight:\nDOB:\n\nRace:\nWork Phone:\n\nROMERO\n5'09\"\n11/20/71\n\nSex: M\n\n()2\n\nInvolved In]27948\n\nIncident:\nLast:\n\nHeight:\nDOB:\n\nRace:\n\nWork Phone:\n\nMADE IN THE\nSHADE\nENVIRONMEN\nTALLLE\n\ntn\n\nSex:\n\n()-\n\ninvolved on stop127965\n\nLast:\nHeight:\nDOB:\n\nRace:\nWork Phone:\n\nKOLLY\n502\"\n10/18/70\n\ninvolved in 127970\n\nincident:\n\nFirst:\n\nWeight: 0\nDr Lie:\n\nPhone: ()-\n\nOther Phone(s):\n\nFirst:\n\nDr Lic:\n\nOther Phone(s):\n\nFirst:\n\nWeight: 0\nDr Lic:\n\nPhone: ()-\n\nOther Phone(s):\n\nFirst:\n\nDr Lic:\n\nOther Phone(s):\n\nRUBEN\nWeight: 232\n514703876\nPhone: () -\n\nAMY\n\nWeight: 125\nK400-0117-0878-\n01\n\nPhone: () -\n\nMid:\n\nEyes:\n\nAddress:\nCity:\n\nMid:\n\nEyes: BRO\n\nAddress:\nCity:\n\nMid:\n\nEyes:\n\nAddress:\nCity:\n\nMid:\n\nEyes: BRO\n\nCity:\n\nAddress:\n\nHair:\n\n4100 W Galveston Ste #1\n\nChandler, AZ 85226\n\nRAY\nHair: BLK\n\n401 Peaceful Meadows Dr ne\n\nRio Rancho, NM 87\n\nHair:\n$251 E. Pima St.\n\n144\n\nTUCSON, AZ 85712\n\nKATHERINE\nHair: BRO\n1509 Charles ST\n\nLa Crosse, WI 5460\n\nes\na\n\n08 20:26\n\fCase 1:26-cv-02127-RJL\n\nIncident Report for 260812066\n\nDocument 50-3\n\nFiled 08/27/26\n\nPage 26 of 31\n\nPage 73 of 15\n\nLast:\nHeight:\nDOB:\n\nRace:\nWork Phone:\n\nCROSBY\n5'00\"\n08/27/77\n\nSex:\n()-\n\nInvolved on!27966\n\nincident:\nLast:\n\nHeight:\nDOB:\n\nRace:\nWork Phone:\n\nW\n\nCOOPER\n\n\u00a7'10\"\n\n09/01/82\nSex:\n\nC)-\n\nInvolved In127958\n\nIncident:\n\nLast:\n\nHeight:\nDOB:\n\nRace:\n\nWork Phone:\n\nEAN HOLDING\n\nLLe\n\n40% [40K [4K\nSex:\n()-\n\nInvolved In]27960\n\nIncident:\n\nLast:\n\nHeight:\nDOB:\n\nRace:\n\nWork Phone:\n\nRUDOLPH\nCHEVROLET\nLLC,\n\nmH\n\nSex:\n\n(2\n\nInvolved In]27959\n\nIncident:\nLast:\n\nHeight:\n\nDIAMONDBAC\n\nK LAND\nSURVEYING\nLLG,\n\nFirst:\nWeight:\nDr Lie:\nPhone:\n\nOther Phone(s):\n\nFirst:\nWeight:\nDr Lic:\n\nPhone:\n\nOther Phone(s):\n\nFirst:\n\nWeight:\nDr Lie:\nPhone:\n\nOther Phone(s):\n\nFirst:\n\nWeight:\nDr Lie:\nPhone:\n\nOther Phone(s):\n\nFirst:\n\nWeight:\n\nDANIEL\n160\nB13124116\n()-\n\nTRACY\n\n190\n3800161642\n(J*\n\n0\n\n(Js\n\n0\n\n()2\n\n0\n\nEyes:\n\nEyes:\n\nEyes:\n\nEyes:\n\nEyes:\n\nMid:\n\nBRO\n\nAddress:\nCity:\n\nMid:\n\nHAZ\n\nAddress:\nCity:\n\nMid:\n\nAddress:\nCity:\n\nMid:\n\nAddress:\nCity:\n\nMid:\n\nALFREDO\n\nHair: BLK\n\n3943 N. Lindstrom PL\nTUCSON, AZ 85750\n\nLEE\n\nHair: RED\n\n9254 Branford Hills\nLas Vegas, NV 8912\n\nHair:\n2177 US Highway 2\nKalispell, MT 59901\n\nHair:\n5625 S. Desert Blvd.\nEl Paso, TX 79932\n\nHair:\n\n3\n\nE\n\n08/20/26\n\fCase 1:26-cv-02127-RJL Document 50-3\n\nIncident Report for 260812066\n\nFiled 08/27/26\n\nPage 27 of 31\n\nPage 14 of 15\n\nDOB: **/**/** Dr Lie:\nRace: Sex: Phone: ()-\nWork Phone: ( ) - Other Phone(s):\n\ninvolved in!27967\n\nincident:\nLast: CARRINGTON First: RYAN\nHeight: 6'00\" Weight: 250 Eyes:\nDOB: 06/22/88 Dr Lic: 1702166159\nRace: W Sex: M Phone: ()-\nWork Phone: () - Other Phone(s):\ninvoled in]27972\nincident :\nLast: JONES First: EDWARD\nHeight: |\" Weight: 0 Eyes:\nDOB; **/**/** Dr Lie:\nRace: W Sex: M Phone: () -\nWork Phone: () - Other Phone(s):\nnvolved In127961\nilcident :\nLast: SLSCVO LTD, First:\n4150 PINNACLE\nSi\nHeight: |\" Weight: 0 Eves:\nDOB: St /expex Dr Lie:\nRace: Sex: Phone: () -\nWork Phone: () - Other Phone(s):\nInvolved in127968\nincident:\nLast: DEATHERAGE First: CHRISTOPHER\nHeight: 5'11\" Weight: 155 Eyes:\nDOB: 04/06/99 Dr Lic: D09784983\nRace: W Sex: M Phone: ()-\n\nWork Phone: () - Other Phone(s):\nInvolved in127973\n\nincident:\n\nAddress:\nCity:\n\nMid:\n\nBLU\n\nAddress:\nCity:\n\nMid:\n\nAddress:\nCity:\n\nMid:\n\nAddress:\nCity:\n\nMid:\n\nBRO\n\nAddress:\nCity:\n\n6140 Brent Thurman Way Ste. 230\nLas Vegas. NV 89148\n\nLYNN\n\nHair: BRO\n\n2725 W. Wigwam Ave. Apt 1106\nLas Vegas, NV 89123\n\nHair: BRO\n\nHair:\n4150 Pinnacle St.,\nEl Paso, TX 77478\n\nAARON\n\nHair: BLK\n\n3516 E. StoneHaven Way\nTUCSON, AZ 85747\n\n08\u00b020 26\n\n\fCase 1:26-cv-02127-RJL\n\nIncident Report for 260812066\n\nDocument 50-3\n\nFiled 08/27/26\n\nPage 28 of 31\n\nPage 15 of 15\n\nLast: METCALF\nHeight: |\"\nDOB: AK [7K [KK\nRace: W Sex: M\nWork Phone: () -\n\nFirst:\nWeight:\nDr Lie:\nPhone:\nOther Phone(s):\n\nDERRYL\n0\n\n(=\n\nMid:\n\nEyes:\n\nAddress:\nCity:\n\nHair:\n\nBLK\n\fCase 1:26-cv-02127-RJL Document 50-3 Filed 08/27/26 Page 29 of 31\n\nATTACHMENT C\n\fCase 1:26-cv-02127-RJL Document 50-3 Filed 08/27/26 Page 30 of 31\n\nDEPARTMENT\n\nSupplemental for Incident\n\nTOHONO O'ODHAM NATION POLICE\n\nDETAILS\n\nIncident Number: 260812085 Name: R CERVANTES\nSequence Number: | Date: 16:07:46 08/12/26\nNARRATIVE\n\nRanger Supplemen\n\n. Report\nIR #: 26081208\n\nRanger Submitting Report: Roberto Cervantez Gonzalez #414\n\nSynopsis:\n\n2026, Ranger Kopcsik #411 and I, Ranger Cervantez\na to perform security checks on Federal Route 21 and all\ne to the international border when we encountered\ne wash at milepost 12 in the village of Santa Cruz.\noccurred in the Tohono O'odham Nation within the Pisinimo Distric\n\nSummary:\n\nRanger Kopcsik #411 and I, Ranger Cervantez #414, encountered a vehicle stopped\nat the wash near milepost 12 on Federal Route 21. After interviewing all three\noccupants, we determined they lacked the proper documentation to be on the\nNation. Due to their lack of documentation and the wash being too high to cross\n\nafely, we instructed them to leave the Nation.\n\nOn August 12, 2026, Ranger Kopcsik #411 and I,\ncontact with a truck stopped right before I\nnear milepost 12 on Federal Route 21. We exited our as\n\nidentified ourselves as Rangers with the Tohono O'odham Nation Police\nDepartment.\n\nWe asked the three occupants inside the truck what they were doing on the\nNation. They stated they were contractors for the Border Patrol on their way to\nthe border; however, they did not have any documentation to corroborate that\nthey had permission to be on the Nation. We requested their identifications and\nvehicle registration, took photographs of the occupants, and photographed the\nvehicle.\n\nDue to the wash being too high to cross and their lack of a permit to be on the\nNation, we instructed them to turn around and return once they obtained the\nproper permits to verify their stay on the Nation.\n\nana\n\nThis concludes my involvement in this incident.\n\n08 21/2\u00a2\n\n=\n\n)\n\fCase 1:26-cv-02127-RJL Document 50-3 Filed 08/27/26 Page 31 of 31\n\nSupplemental for Incident Page 2 of 2\n\nArizona plate number: 6WA6P2\nVIN # 3TMKB5FN8SMO045352\nMAKE: TOYOTA\n\nMODEL: TACOMA\nYEAR: 2025\nCOLOR: WHITE\n\nRegistered owner: JP INDUSTRIES INC\nADDRESS: 2851 N Country Club Rd, Tucson, Az 85716-1909\n\nDriver: Rodrigo Valdez-Mendivil\nDriver License # D01328321\n\nPassenger: Antonio Gabriel Gonzales\nDriver License # D09991173\n\nqQ\nK\n\n: Jesus Antonio Miranda\nriver License # D03915896\n\nWed Aug 12 16:12:32 MST 2026\n\nCertified release Rae ono O\u2019odham Police By ss this \u2014\u2014 a an aon does\n. SXpress ) LGIV Wate \u2018 unity, or ICS agree,\nOfficial: j 6 6 202 note I ressly Or 1 p leaky aisve dts dmmuny 5 ne aes I : terec\n. ees accept or otherwise subnut to the personal and/or subject\nby the TOPD Records Division.\n\nmatter of any court.\nSee Title 1, Chapter 2. Section 2101 of the Tohono O'odham\nNation's Code.\n\n08/21/26\n","ocr_status":1,"date_upload":"2026-08-27T22:04:11.319317-07:00","document_number":"50","attachment_number":3,"pacer_doc_id":"045012309124","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Declaration of James Cook","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/491661028/","id":491661028,"tags":[],"absolute_url":"/docket/73493770/50/4/tohono-oodham-nation-v-mullin/","date_created":"2026-08-27T20:11:56.299906-07:00","date_modified":"2026-09-10T13:19:33.049676-07:00","sha1":"21845b9b802e565f668b8f133682766a4d3f06f0","page_count":43,"file_size":5780252,"filepath_local":"recap/gov.uscourts.dcd.293593/gov.uscourts.dcd.293593.50.4.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.dcd.293593/gov.uscourts.dcd.293593.50.4.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 1:26-cv-02127-RJL Document 50-4 Filed 08/27/26 Page1of 43\n\nTHE UNITED STATES DISTRICT COURT\nFOR THE DISTRICT OF COLUMBIA\n\nTOHONO O\u2019ODHAM NATION,\na federally recognized Indian tribe,\n\nPlaintiff, Case No. 26-cv-2127-RJL\nV.\n\nMARKWAYNE MULLIN, in his official\ncapacity as Secretary of U.S. Department of\nHomeland Security; RODNEY SCOTT, in his\nofficial capacity as Commissioner of U.S.\nCustoms and Border Protection; and\nROSARIO VASQUEZ, in his official\ncapacity as Chief of U.S. Border Patrol,\n\nDefendants.\n\nDECLARATION OF BEVERLY MATTHEWS\n\nI, Beverly Matthews, declare the following on the basis of personal knowledge to which I\nam competent to testify:\n\n1. My name is Beverly Matthews, and I am a Detailed Realty Officer with the\nTohono O\u2019odham Nation Planning and Economic Development Department. In this role, I\nsupervise staff in the Nation\u2019s Realty Department and the operations of the Realty Office. It is\namong my responsibilities to maintain an up-to-date understanding of the lands and roads within\nthe Nation\u2019s Reservation, including their legal status as reflected in their legal descriptions and\nvalidly filed rights-of-way, and to ensure that the Nation\u2019s land and roads data remains consistent\nwith relevant federal land and roads data for the Nation\u2019s Reservation.\n\n2. The southern border of the Nation\u2019s Reservation is bounded on the east and west\n\nby rugged mountains. There is accordingly no road access to the international border directly\n\n1\n\fCase 1:26-cv-02127-RJL Document 50-4 Filed 08/27/26 Page 2 of 43\n\nfrom either the east or the west. The Department of Homeland Security, Customs and Border\nProtection, and their entities, agents, or contractors (collectively, \u201cDHS\u201d), therefore need to cross\nsouthward through the Reservation\u2019s interior in order to reach the Reservation\u2019s southern border.\n\n3. I have reviewed the public and private rights-of-way governing the use of the\nNation\u2019s roads approaching and connecting to the Nation\u2019s southern border and have confirmed\nthat there are no valid rights-of-way by which DHS is authorized to travel through the\nReservation in order to build a wall at the southern border.\n\n4. A right-of-way over the Nation\u2019s trust land is an easement that grants to another\nperson or legal entity, including any federal, state, or local government entity, 25 C.F.R. \u00a7 169.4,\na non-possessory \u201cright to go over or across\u201d the land for a specified purpose, 25 C.F.R. \u00a7 169.2\n(defining \u201cRight-of-way\u201d). Each right-of-way must be established in a written agreement with\nthe Nation, 25 C.F.R. \u00a7 169.107(a), and describe its scope and location within the Nation\u2019s\nReservation. A right-of-way may be coextensive with an entire road, plot of land, or other\nspecified area, or it may cover only a specified portion of such road, land, or area.\n\n5. The Bureau of Indian Affairs (\u201cBIA\u201d) may establish a right-of-way across the\nNation\u2019s lands only with the Nation\u2019s consent. See 25 U.S.C. \u00a7 323; 25 U.S.C. \u00a7 324. Under this\nstatutory and regulatory framework, and with the Nation\u2019s consent, \u201c[r]ights-of-way for the use\nof the United States may be granted ... upon application by the department or agency having\njurisdiction over the activity for which the right-of-way is to be used.\u201d 25 U.S.C. \u00a7 327.\n\n6. The establishment of a right-of-way on the Nation\u2019s Reservation does not\ndiminish the Nation\u2019s \u201cjurisdiction over the land subject to, and any person or activity within, the\nright-of-way\u201d; its \u201cauthority to enforce tribal law of general or particular application on the land\n\nsubject to and within the right-of-way, as if there were no grant of right-of-way\u201d; or its \u201cinherent\n\fCase 1:26-cv-02127-RJL Document 50-4 Filed 08/27/26 Page 3of 43\n\nsovereign power to exercise civil jurisdiction over non-members on Indian land.\u201d See 25 C.F.R.\n\u00a7 169.10. Once established, the Nation must consent to, and the BIA must approve, the\namendment of any provision of a right-of-way grant. 25 C.F.R. \u00a7 169.204. The BIA may deny an\namendment absent the Nation\u2019s consent or for violations of the right-of-way provisions. See 25\nCFR. \u00a7 169.206.\n\n7. In 1977, the BIA, with the Nation\u2019s consent, established three rights-of-way for\nthe BIA to enter the Nation\u2019s lands to \u201cgrade, level, fill, drain, pave, build, maintain, repair and\nrebuild a public road, including incidental purposes consistent therewith, together with such\nbridges, culverts, ramps and cuts as may be necessary, on over, under and across the ground\nembraced within the right-of-way[.]\u201d These rights-of-way attach to BIA Routes 1, 19, and 21.\nAttachments A-C to this Declaration are true and correct copies of the 1977 Grants of\nEasement and related application materials for the BIA Route 1, 19, and 21 Rights-of-Way,\nrespectively. In 1990, again with the Nation\u2019s consent, the BIA added six rights-of-way at sites\nadjacent and contiguous to the existing Route 19 right-of-way for purposes of repairing and\nmaintaining portions of Route 19. These rights of way did not otherwise modify or expand the\nscope of the 1977 Route 19 right-of-way. Attachment D to this Declaration is a true and correct\ncopy of the 1990 Grant of Easement and related application materials for the BIA Route 19\nRight-of-Way.\n\n8. Routes 1, 19, and 21 all run south from Arizona State Route 86 (which spans the\nmiddle of the Nation\u2019s Reservation in an east/west direction) and stop north of the international\nborder. Attachment E to this Declaration is a true and correct copy of the Tohono O\u2019odham\n\nNation\u2019s Planning and Economic Development Department\u2019s Transportation Planning Program\n\fCase 1:26-cv-02127-RJL Document 50-4 Filed 08/27/26 Page 4of 43\n\nMap, which was last revised in 2005, and which remains accurate as to all the roads approaching\nand adjacent to the Nation\u2019s southern boundary.\n\n9. The westernmost of these public rights-of-way, on BIA Route 1, terminates in the\nReservation community of Menagers Dam, approximately 1 mile north of the border. From\nMenagers Dam, a separate road known as the BIA 1 Connector Road proceeds south to the\nTraditional Northern Road, which runs roughly parallel to the border across much of the\nReservation. The BIA 1 Connector Road is an unpaved road that has been used by Tohono\nO\u2019odham members for decades. There is no public nght-of-way authorizing the public use of the\nBIA 1 Connector Road, and the BIA 1 Connector Road has never been opened to general public\nuse other than use by Nation members. And while the Nation consented to allow DHS and CBP\nto utilize Connector Road 1 as an access road for select purposes in 2019, see infra J 14-15,\nthere are no private rights-of-way authorizing DHS to travel on BIA 1 Connector Road to the\nborder or the Traditional Northern Road for purposes relating to border wall construction.\n\n10. The middle public right-of-way on BIA Route 21 terminates approximately 5\nmiles north of the border at the Reservation community of Papago Farms. There is no public\nroad or private right-of-way connecting Papago Farms to the international border.\n\n11. The easternmost public right-of-way on BIA Route 19 terminates approximately\n1,700 feet north of the border near the San Miguel Gate. From the BIA Route 19 nght-of-way\u2019s\nterminus, a separate road known as the BIA 19 Connector Road proceeds south to the Traditional\nNorthern Road. The BIA 19 Connector Road is an unpaved road that has been used by Tohono\nO\u2019odham members for decades. There is no public right-of-way authorizing the public use of the\nBIA 19 Connector Road, and the BIA 19 Connector Road has never been opened to general\n\npublic use other than use by Nation members. And while the Nation consented to allow DHS and\n\fCase 1:26-cv-02127-RJL Document 50-4 Filed 08/27/26 Page 5of 43\n\nCBP to utilize Connector Road 19 as an access road for select purposes in 2019, see infra JJ 14\u2014\n15, there are no private rights-of-way authorizing DHS to travel on BIA 19 Connector Road to\nthe border or the Traditional Northern Road for purposes relating to border wall construction.\n\n12. The Traditional Northern Road is a private road that generally runs in an east-\nwest direction through the Reservation. The Traditional Northern Road begins approximately 1.6\nmiles east of the Reservation\u2019s western boundary and runs roughly parallel to the international\nborder for most of its duration. As it approaches the eastern boundary of the Reservation, the\nTraditional Northern Road turns north and terminates approximately 1.5 miles north of the\ninternational border, where a separate private road continues off-Reservation. At all points, the\nTraditional Northern Road is located more than 60 feet north of the international border.\n\n13. In 2004 and 2014, the Nation\u2019s Legislative Council indicated support for rights-\nof-way for DHS to use certain stretches of the Traditional Northern Road. The rights-of-way\nwere for the limited purpose of construction and maintenance of the vehicle barrier currently in\nplace on the Nation\u2019s lands and for construction of an \u201call-weather road,\u201d also known as the\nBorder Fence Road, which spans much of the Nation\u2019s southern boundary and is generally\nlocated less than 60 feet from the international boundary. Where it was not possible to build the\nBorder Fence Road completely within 60 feet from the border, the Nation consented to allow the\nBorder Fence Road to connect to the Traditional Northern Road via limited rights-of-way on the\nlatter road. Despite the Nation\u2019s consent to these rights-of-way on the Traditional Northern\nRoad, they were never perfected in a formal legal agreement or approved by the BIA.\n\n14. In 2019, in conjunction with the Nation\u2019s agreement authorizing DHS to erect\nIntegrated Fixed Towers (\u201cIFTs\u201d) along the border on the Nation\u2019s lands, the Nation consented\n\nto DHS being granted \u201c[a] non-exclusive ... easement for right-of-way for construction,\n\fCase 1:26-cv-02127-RJL Document 50-4 Filed 08/27/26 Page 6of 43\n\nmaintenance, operation and repair of portions of the Traditional Northern Road, including\nnecessary and related improvements to that road, such as drainage culverts, low-water crossings,\nand signage.\u201d Attachment F to this Declaration is a true and correct copy of the 2019 Grant of\nRight-of-Way for Portions of the Traditional Northern Road, BIA TAAMS No. 4200185226.\nPortions of the Traditional Northern Road, the BIA 1 Connector Road, and the BIA 19\nConnector Road were among the parcels of land designated for inclusion in the right-of-way for\nthe enumerated purposes. See id.\n\n15. The night-of-way instrument further provides that the right-of-way will be valid\n\u201cfor a term of 25-years so long as the right-of-way is used for the purpose above specified\u201d and\nmay be canceled or terminated by the Nation \u201cif there has been a violation of the conditions of\nthe grant[.]\u201d Jd. \u00a7\u00a7 2-4. No other public or private rights-of-way exist with respect to the\nTraditional Northern Road or the BIA Route 1 and BIA Route 19 Connector Roads, and the 2019\nAgreement between the Nation and DHS authorizing the granting of these easements recognized\nthat CBP must negotiate for any \u201cadditional, necessary grants of easement for rights of way,\nleases, authorizations, or agreements as necessary to authorize CBP\u2019s use of Nation\u2019s lands\noutside of the twelve grants of easement for rights of way identified in this Agreement.\u201d See Dkt.\n26, Declaration of Paul Michael Ehlerman, Attach. A 25.\n\n16. There is accordingly no single existing easement, nor any combination of existing\neasements, that would provide DHS a continuous pathway across the Nation\u2019s lands for purposes\nof border wall construction. There is no public right-of-way that would allow DHS to cross from\nRoutes 1, 19, or 21 to the Traditional Northern Road, nor is the Traditional Northern Road open\nfor general public use or available for use by DHS beyond the terms and conditions of the 2019\n\nIFT Agreement.\n\fCase 1:26-cv-02127-RJL Document 50-4 Filed 08/27/26 Page 7 of 43\n\nI declare under penalty of perjury that the foregoing is true and correct.\n\nDated: August 25, 2026 Bewsaly Ulatihewe\nBeverly/Matthews\n\fCase 1:26-cv-02127-RJL Document 50-4 Filed 08/27/26 Page 8of 43\n\nATTACHMENT A\n\fTAG RIB ep Ree ae OeA RECEIPES O8fR 1/26. Page 9 of 43\nemorandum\n\nSuperintendent, Papago Agency DATE: January 4, 1977\nRoads & Realty\n\nArea Road Engineer, PAO\n\nRight-of-Way Documents for Papago Route 1\n\nWe are submitting the right-of-way documents for Route No, 2 s\nDwg. No, P~l-1(Rev.) , Papago indian Reservation,\nArizona \u00bb for approval and signature,\n\n&nclosures Include the following:\n\nOriginal linen map of the right~of \u00abway\n_ Prints \u2018of the right-of-way map\nOriginal Applicatton for Right-of-Way\nCopy of the Application for Right-of-Way\nCriginal Grant of Easement for Right~of -Way\n\nomb ack cof Uy} oud\n\nPlease retain for your files the prints of the right-of-way map and\nthe copy of the Application for Right-of-Way,\n\nPlease submit the completed Grant of Easement for Right-of-Way, |\nthe original linen map and the Tribal. Resolution, granting the\n\nright-of-way to the Southwest Title Plant, Albuquerque, New Mexico.\n\nTo complete our records, please send a copy of the Tribal Resolution\n\nand a copy ef the last page of the Grant of Easement for right-of-way\n(showing the Superintendent! s signature) to the Branch of Roads,\nPhoenlx Area Office,\n\nEnclosures\n\nBuy U.S. Savings Bonds Regularly on she Payroll Savings Plan\n\n\f|\n\nCase 1:26-cv-0212% RJ, Document 50-4 Filed 08af/26\u2014 Page 10 of 43\n\u201cE J f : I\n\nAPPLICATION FOR RIGHT-OF-WAY\nThe United States Department of the interlor, Bureau of Indian Affairs,\nPhoen|x Area Office, Phoenix, Arizona, hereby makes application\n\npursuant to Section 5 of the Act of February 5, 1948 (62 Stst. 17) and\n\nIn accordance with Departmental Regulations 25 CFR 161 and 162 for a\n\nroad right-of-way, 100 feet in width and 10.502 miles in length\nacross the Papago Indian Reservation to be granted to the United\n\nStates, its successors and assigns, with the right to construct, maintain,\nand repair improvements, thereon and thereover, for such purposes, and\nwith further right tn the United States, its successors and assigns,\n_ to transfer said right-of-way by assignment, grant or otherwise, The\nlocation of said road and its extent are more particularly shewn and\n\u2018del Ineated on the accompanying map, Drawing No, P-I-1 (Rev) , which has been\nprepared tn compliance with 25 CFR 161.6, and which by this reference is\nmade part. hereof, .\ndn the event the right-of-way herein applied for is granted, the United\n\nStates Department of the Interior, Bureau of indian Affairs, Papago\n\nAgency, agrees to conform and abide by all pertinent rules and regulations\nof the Department of the Intertor with special reference to Departmental\nRegulation 25 CFR 161.5, except 161.5(c),.\n\nIN WITNEES WHEREOF, the undersigned applicant has caused this instrument\n\nto be executed this 3rd day of January , 19 77\n\nUnited States Department of the Interior\n' Bureau of Indian Affairs\nPhoenix Area Office\n\n0\u00bb awe A Gharby\nGeorge S$. Werby, Area Road Engineer\n\n\fS ,pyrn vr 8 YN NY FP Poe Hp Pp we op pop\ni \u2018ff 8 2B os 2 2 og 8 GO YF oe oy ep mf FB a & OB\n\nos oOo 4N @ ao \u00a3 uu UH HF\n\n{| prtotPected Section 4, T.168,. all tn Re3W. G&SRM. Artvona, The said easement.\n\nJa public road, Including Incidental purposes consistent therewith, together\n\nReservation, County of Pima _. _, State of Arizona opi\n\nsefiterline ts more particularly desentbed as follows:\n\ni\n\nCase 1:26-cv-Q2127-RJL \u201c Document50-4 Filed 08/27/26 Page 11 of 43\n\nTRIBAL OWNED Land of the Papago \u2018nd. Res,\nINDIVIDUALLY OWNED '\nGOVERNMENT OWNED\nROUTE NO,\n' 375-Gu Vo-113 (Rev.)\n\nGRANT OF EASEMENT. FOR RIGHT-OF-WAY\n\nKNOW ALL MEN BY THESE PRESENTS:\n\nThat the United States of Amertca, acting. by and through _\nActing ,\nCharlies R, Whitfield, Supt. Papago \u2018Agency \u00bb Bureau of indian Affairs,\n\nDepartment of the Interior, Sells. Arizona\n\nhereinafter referred to\n\"Grantor\", under authority contained in 230 DMI, 10 BIAH 3 and 10 BIAM 11,\n\nand pursuant to the provisions of the Act of February 5, 1948 (62 Stat. 17,\n\n25 U, S, C. 323~328) , and Part 161, Title 25, Code of Federal Raqutations, in\nconsideration of ONE DOLLAR (31. 00) and other good and valuable consideration,\nthe recetpt of which is acknowledged, does hereby grant to the Bureau of\nIndian Affairs, Department of the Interior, [ts successors and assigns,\nherelnafter referred to as \"Graritee\", an. easement for a right-of -way for the\u2019\n\nfollowing purposes, namely: The right to enter upon the hereinafter described\n\n| Tand and grade, level, fIil, drain, pave, build, maintain, repair and rebul Id |\n\nwith such bridges, culverts, ramps and cuts as, may be necessary, on-over,\n\n| Under and across the ground embraced within the right-of-way situated on the ae\n\nfollowing \u2018described lands located within the. Pepago Indian\n\nA right-of-way. 100 feet In width across & portion of the Papago\nIndian Reservation. Arizona located tn Sections 15, 22; protracted Sections\n\n33 and 34 T.148. protracted Sections by, 9, 16, 21, 28 and 33\u00b0 1,155.\n\nas shown on Map No.\u201d P=1~1 (Rev.) attached hereto jis limited to and whose\n\nCrest DOCUMENTS SUPERSEDE THOSE FOR P=1=1\nBeginning at Station 0400.00 (N439,408, E297 577; Artzona Central _\n\nI\n! .Lone coordinates), (Route 34 Station 2269474.01) which bears N80\u00b003' 50\", ,\n|| 12,980.83 feet From ININEMILE\u201d (U,s,6,8,) (Wh37,618, 808) E310,413, 698 Arizona |\n\nCentral Zone coord! nates); thence $3\u00b037/07\"W to P, G, Station \u00a72483,09. \u2018thence\n\nsoutheasterly 271/39 feet along Curve No. 1. concave to the southeast (havin\n\n\fo @\u00ae\u00a9 N @ G& A ew WH H\n\n: \u2018 oe Ao 5 4 Bb PNM NHN DB FP YF PP FP BY Bw FF HP oH\n& o $ . 8 3 XN 2 x bh GF MF CGC fF & HY GG & RF &B MW KF OG\n\n~\u2014,\n\nCase 12G-cv-Q2127-RIL , Document S0-4 Filed 08/27/26 Page.12 of 43\n\nan angle of intersection of 2\u00b042'50\", a degree of curva of 1\u00b000'00! and a\n\ntangent of 135.72 feet) to P.T, Station 55454.47' thence SO\u00b0SAITZW to P.C,\n\nStation 120+24.45; thence southwesterly, 965.15 feet along Curve No, 2, concave\n\nto the northwest (having an angle of intersection of 19918'11'', a degree of\ncurve of 2\u00b000'00!!' and a tangent of 487.19 feat) to P.T, Station 1294+89.59;\nthence $20\u00b072'28'W to P.C, Station 184+15.23; thence southeasterly, 1,022.89.\nfeet along Curve No. 3, concave to the southeast (having an angle of fnter-\n\nsection of 20927127\", a degree of curve of 2900400\" and a tangent of 516.95\n\nfeet) to P.T. Station 194+38.11; thence $0\u00b015'00!' E to P.C, Station 220+68,50;\n\nthence southeasterly, 582,89 feet along Curve No. 4, concave to the east (having\nan angle of intersection of 5\u00b049'44\", 3 degree of curve of 1900/00\" and a tan\n\ngent of 291.70 feet) to P.T. Station 226451.39; thence $6\u00b0O4'4U\"E to PC, Stam\n\nj| thon 254+28,08; thence southeasterly, 640,68 feet along Curve No. 5, concave\n\nto the norhteast (having an angle of Intersection of 12\u00b0S ge, a dagree of\ncurve of 2\u00b000'00\" and a tangent of 321,68 feet) to P,T. Station 260468, 76;\nthence $18953'33'E to P.C, Station 284417,18; thence southwesterly, 1,659.43\nfeet along Curve No, 6, concave to the west (having an angle of intersection\nof 33\u00b011'19\", a degree of curve of 2\u00b000'00\"' and a tangent of 853.72 feet) to\nP.T. Station 300+76,63: thence SIM\u00b0T7'46\"W to PC, Station 328426,36; thence\n\nsoutheasterly, 922.92 feet along Curve No. 7, concave to the southeast (having\n\n\u2018an angle of intersection of 9913145\", a degree of curve of 1\u00b000'00' and a tan=\n\ngent of 462,46 feet) to P.T, Station 337+49.27; thence S5\u00b0O4 OMY to PLC, Sta-\n\ntion 365+59.24; thence southwesterly, 381.39 feet along Curve No. 8, concave\n\nto the West (having an angle of intersection of 3043/50\", a degree of curve of\n\n90100\" and a tangent of 190,76 feet) to P.T. Station 369+40.63: thenes\n\n$8\u00b0A7'S1\"W te PLC. Station 371+23,83; thence southeasterly, 754,33 feet along\n\n| Curve No. 9, concave to the east (having an angie of intersection of 7\u00b032! 36\",\nJa dagree of curve of 100! 00\" and a tangent of 377.71 feet) to P.T, Station\n||378+78.16; thence SI\u00b015'T5\"W to P.C, Station 380+45,25; thence southwesterly,\n|[381.28 feet along Curve No. 10, concave to the horthwest (having an angle of\n\n|ltritersection of 394846, a dagree of curve of 1900'00\" and e tangent of 190.71\n\nfeet} to P.T. Station. 3844+26.53 Back = P,T, Station 3824.76 Ahead EQUATION\n\nI\n\n\fid\nat\nig\n\n13\n14\n\n15\n1\u00a2\n17\n18\n19\n20\n- gt\nRB\n23\n\n24 |\n25 |\n\n28\n27\n\n23\n29 |\n30 |\noh\n\n82\n\n.P,C, Station 4924+02.08; thence southeasterly, 3,033,987 feet along Curve No. 13,\n\no 98 4 Oo & Aw wD oH\n\nFeet from \"KERWO\" (U.S.6,5.) (N393, 711.464, E292, 384.504: Arizona Central\n\nZone Coordinates).\n\nCase 1:26,cv-Q2127-RJL Document,sO=4 Filed 08/27/26 Page 13 of 43\n\nthence $5\u00b0O4' OW to P.c, Station 389+82,15: thence southeasterly, 971.33 feet\nalong Curve No. 11, concave to the northeast (having an angle of Intersection\nof SPy2IaA 2 degree of curve of 1\u00b000'00\" and a tangent of 486,83 feet)\u2019 to\nP.T. Station 39953.47; thence S438'47\"E to P.C. Station 440439.56\u00b0 thence\nsouthwesterly, 1,370.10 feet along Curve No. 12, concave to the northwest\n(having an angle of Intersection of 27\u00b024'07\", a degree of curve of 2\u00b000 og\"\n\nand a tangent of 698.41 feet) to P.T. Station 4G4+09.65; thence $22\u00b045' 20\"w to\n\nconcave to the northeast {having an angle of Intersection of 91\u00b000'57\", a de=\n\ngree of curve of 3\u00b000'00\" and a tangent of 1,944.05 feet) to P.T. Station\nS\n\n522+35.94; thence $68\u00b015'37\"E to end of right-of-way Station 55444862 Back =\n\nStation 564+48.94 Ahead EQUATION (N387, 534, \u00a3297, 595\u00b0 Artzona Central Zone-\n\nCoordinates) on the centerline of Route 24 and bearing SHO\u00b0OS ABE, 8,081.48\n\nThe described easement contains 127.297 acres, more or less.\n\n4\n\n:\n\u2018\n{\n\nOR fier ee\n\n\f6 oe 4 Oo F fF A MY\n\ntw A i \u201ceo ow ww YP YP BRP Fe BP Boe ew oe\nSes eee sere eee ee Ae\n\n-water and sewer lines, when\u2019 these are not inconsistent with the use of the \u00a9\n\nfor the purpose for which it was granted,\n\n\u2018file with the Grantor an offidavit of \u2018completion pursuant to 25 CFR 161. 16.\n\nand shall inure \u2018to the benefit of the successors and assigns of the Grantee.\n\nCase 1:26-cv-02127-RJL * D -\na ocument Os Filed 08/27/26\n\nTO HAVE AND TO HOLD the said easement and right-of-way unto the |\n. 4\nGrantee and unto Its successors and assigns, together with the right to\n\nauthor ize, peralt and license the use thereof for utility lines, including\n\nI property for a \u2018publie road,\u2019 and with: the further right in the Grantee, Ite\nsuccessors and \u2018assigns to transfer sald right-of-way by assignment, grant or\n\n\u00bb otherwise.\n\nThe sald easement to Include the right to cut back and trim such\n\nportion of: the branches and tops of the trees \u2018now growing or that may hereafter\n\ngrow \u2018upon the above-decr ibed pramises, | as may extend over sald right-of-way,\n\nso as to prevent the same from interfering with the efficient maintenance and\noperation of said public road,\nThis easement Is subject to ) any prior valid existing right or adverse\n\nclaim and is without limi tation as to tenure, so long as sald easement shall be\n\nactually used for the purpose above specified; PROVIDED, that this right-of-way -\nshall be \u2018terminable. in whole or in-part by the Grantor for any of the following -\n\\| Gauses upon 30 days written notice and the fallure of the Grantee within satd-\n\nnotice period to correct the basis for termination (25. CFR 161, 20)7 r\n\nA, Failure to comply with: any term.or \u201ccondi tion of the grant or the ,\n\napplicable requiations.\n\nB, A nonuse of the right-of-way for a consecutive two~ year period\n\nC, An abendonnent of the: right-of-way,\n\nDd. Fallure of. the Grantee, upon the comp let ion of construction, to\n\n. The condition of this easement shall extend to and be binding upon\n\nthis easemnt is expressly subject to the stipulations required by\n\n5 FR 161, 5\u00b0 sxcept those required by subsection teh thereof are: hereby waived\n\nPage 14 of 43\n\n%\n\n\fCase 1:26-cv-02127-RJL \u2018 mes Filed 08/27/26 Page 15 of 43\n\n|\nr\noy tN WITNESS WHEREOF,, Grantor has\u2019 executed this grant of easement . 1\n2 this 12h, day of January 1977 |\ns vee STATES OF AVEC ! h\n\nCharles R. Whitfiel ast EW iren DENT\n\n8 U.S. DEPARTMENT af THE INTE NG R\n\u2018 BUREAU OF INDIAN AFFAIRS:\n% -. PAPAGO AGENCY\n: . SELLS ,. ARIZONA e569\nep ACKNOWLEDGMENT\n\u201cLO i} STATE OF ARZZONA )\n11 || coUNTY OF PIMA ) \"\n\" 12 - BEFORE ME, a Notary Public, In and for said County and State, on -\n2S \u2018thls 12th day of | Januery. \u00bb, 19 77. personally\n14 appeared Charles R. Whitfield , whose name is subscribed :\n\n18 || to the foregoing Grant of Easement: for Right-of-Way as Acting Superintendent, -\n\n26 Papago Agency. - , Bureau of Indian Affairs, and\n\u201c17 |l who acknowledged that he is and was at the time of signing the same,\n\n18 || Acting Superintendent, Papago Agency \u00bb Bureau of Indian Affatrs; and he.\n\n19\u00b0 personally acknow] edged to me that he executed the said Grant of Easement for\n20 Right-of-Way In his official capaci ty and pursuant to author] ty delegated to.\n\noe 21 || him for the uses and purposes \u2018set forth theralne\n\nAabV ANE E ra\n!\n\n& \u2018 44\nCm \u2018ey A Z, ek \u2018ol, \u2018ee CL\n\nfo, co Notary Public\n\nmi yt \u201cGannon \u201cexpires: |\n\nay | iy gai Exes Mar 13, 1977\n\n\f: Papago Master Road Plan. .\n\ni pnd wee,\n.. . Dkbe, as amended April 9, 1960, ratified by the _Papago Tribe on December 12, \u2014\n-.. 1936, and approved by the Secretary of the Interior on January 6, 1937, pur~\n2. suent to Section 16 of the Act of June 18, 1934, Said Resolution is effective\nas of the. date ef its approval, by the Superintendent of the Papago Agency and\ncoo ds subject to review by the Secretary of the Interigx pursuant to Section 60\nof Article v of the. Constitution and By-Laws of the Papago Tribe. *\n\n\u00bb Gase 1 1. 26- cv-0212 RJL-~, Document 50-4. \u2018Filed 08/ 426, Page! 16 of 43\n\u2122,\n\nBe _ RESOLUTION OF \"HE PAPAGO COUNCLI\n\nvg\nt\n\nWHEREAS$ a \u201ccomprehensive atudy of \u2018the existing road system has been made cn\nthe Papago reservation, together with recommendations for priority improve. *\n\nments: and upgrading of routes: with inereasing traffie requirements 5 and :\n\n- WHEREAS 5 many of the roads are necessary for uninterrupted school. busing\ntraffic to transport ehildren from remote areas to day school facilities; and\n\nWHEREAS the economic development of venote areas will require improved 2 rpad a\nsystems; and . oo a, : oe om\nWHEREAS; the Bureau of Indian Affadra Branch of Roads has requested authority\nto perform preliminary surveys for road improvements , and relocations, a\n\nmaterial exploration and water requirement studies; and.\n\n\u201c WHERWRASs the requested surveys and studies are in the heat interests of alt\n,... tembers of the Papago reservation in developing a more somplete and adequate\n. road system; .\n\n4\n\n: Oe NOW THEREFORE BY IT RESOLVED BY THE PAPAGO COUNCHE| thaf the Bureau of Indian 4\n. Affaixs Brarich of Roads is hereby, authorized and requeabed: to conduct surveys\nand studies herein applied for the future benefit and development of the,\n\nPapago reservation,\n\nt ah\n\nBE IT FURTHER RESOLVED THAT, the Chademen of The Papego \u2018Pouned? and the\n\n' Superintendent of the Papago Agency arecshereby authorized and empowered to\n\nexecute right-of-way permits for construction as needed ko carry out the\u2019.\n\n. the foregoing. Resolution was duly enacted by The Papago Council on the OF. me\n-. Gay OF Nar- Gof, _ 19072, at a meeting at which 9 quexyum was present with\na vote of /7 for, \u00a9 against, _ /' not voting, and 2. ti\n\npursuant to the authority vested in the Papago Counsil. by Section 2 (co ) le)\n)of Article V of the Constitution and ByrLaws. of the Papago \u00a9\n\nTHE 2 AGO COUNCTE,\n\n- yrtset \u00a3, L972\n\noye APNE aS tte ae raises HA Papen\n\n\fCase 1:26-Cv-021274RJL~, Document 50-4 Filed 08/24{26 \u2014 Page 17 of 43 _\n\n\u2018RESOLUTION OF THE PAPAGO \u2018councrL\n\nRES, NO. sae: ee\n\n\u2019 WHEREAS, Resolution of. the Papago Council No. 5-72 approved.\n\nMarch 8, 1972 does not clearly state all: requirements for the\u2019 So\n\n~ granting of Toad right of way. easements.\n\n_ NOW, THEREFORE, BE x? RESOLVED BY. THE PAPAGO\u2019 COUNCIL, that the\n\n_ Superintendent of the Papago Agency is hereby authorized and -\n\n- empowered to approve right of way: easements for construction:\n-a8 needed to carry out the Papago Master Road Plan;*and that\u2019\n\nos payment of damages for the taking.of the. land is hereby waded\nae the benefits to be derived: from: the roads by the Papago.\u2019:\n\"People will more than off- set any.monetary consideration. \u2014\n\n\u201d \u2018The \u2018foregoing Resolution 1 was duly enacted by The Papago: Council\n\non the 3rd day of August, 1973 at:a meeting at which a quorum was\n\nOo present with a vote of 14 for, -0-. against, 1 not. Noting, and. 7:\n\n. (Betsy 5 hovbis, Secretary os\n\nre :\n\n\u201cabsent, pursuant to authority -vested in: the Papago. Council..by' :\nSection 3 and (h) of Article V of the Constitution and By~Laws\n\nof the Papago Tribe,\u2019 as amended: April 95. 1960, ratified by the =\n.; Papago Tribe on December 12, 1936,. and, approved by the Seeretary -\na OE. the Interior on January 6,. \u201c1937, pursuant to Section. 16: Of.\n\nthe Act of June 18, 1934. Said Resolution is effective as of\ndate. of its approval: by the Superintendent\u201d of the: \u2018Papago \u2018Agency\n\naid is subject to review by the Secr\u00e9tary..of the Interior pur-~ .\n\u201cguant to Section 6 of. Article V of the Conaitututiion and By-Laws\n\n\u201cOf \u201cthe Papago \u2018Tribe.\n\nNov1e72, eS\n2 RECEIVED &\nPAPAGO. \"AGENCY\n=, SELLS, ARIEONA\n\n~\u201cApPRoven: __\"\u00b0Y 7? 8%\n\n/ Jpseph i Lucero, Superintendent,\nFhe Papago Agency \u2014 hed\n\n\fCase 1:26-cv-02127-RJL Document50-4 Filed 08/27/26 Page 18 of 43\n\nATTACHMENT B\n\foOo m8 & NN HF\n\nQ\n\n10\n12\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\n26\n27\n28\n29\n30\n31\n\nS2\n\n|\n\n. Case 1:46-cv-\n\nan\u201d\n\nGRANT_OF EASEMENT FOR RIGHT-OF-WAY\n\nI\n|\nTRIBAL OWNED LAND OF THE PAPAGO IND. RES. |\nINDIVIDUALLY OWNED ERR\nGOVERNMENT OWNED AAR\nROUTE NO. 19 975-246 {he mi. ext. of Rt:\n\nt\n\nKNOW ALL MEN BY THESE PRESENTS:\n\nThat the United States of America, acting by and through Richart T.\n\nChristman, Superintendent,\n\n_, Bureau of Indian Affairs,\n\nDepartment of the Interior,\n\nsells, Arizona ,hereinafter referred to\n\n\"Grantor\", under authority contained in 230 DM1, 10 BIAM 3 and 10 BIAM 11,\n\nand pursuant to the provisions of the Act of February 5, 1948 (62 Stat. 17,\n\n25 U.S.C. 323-328), and Part 161, Title 25, Code of Federal Regulations, in\n\nconsideration of ONE DOLLAR ($1.00) and other good and valuable consideration,\n\nthe receipt of which is acknowledged, does hereby grant to the Bureau. of\n\nIndian Affairs, Department of the Interior, its successors and assigns,\n\nhereinafter referred to as ''Grantee'', an easement for a right-of-way for the\n\nfollowing purposes, namely:\n\nland and grade, tevel, fill, drain, pave, build, maintain, repair and rebuild\n\na public road, including incidental purposes consistent therewith, together\n\nunder and across the ground embraced within the right-of-way situated on the \u2014 i\n\nfollowing described iands located within the\n\nReservation, County of\n\nThe\n\nwith such bridges, culverts, ramps and cuts as may be necessary, on over,\n\nPima\n\nright to enter upon the hereinafter described\n\n\u2018Papago Indian.\n\nA right-of-way, 100\u00b0 feet In width across a portion of the Papago\n\nGESRM, Arizona. \u2018The said easement as shown on Map No. P-19-2, attached hereto,\n\nBeginning at Station 0400.00 (Route 19=1 Station 11814+98.84) ,\n\nwhich bears \u00a7 6\u00b053'00\" W, 7,615.43 feet from the northwest corner of Section 6, ;\n\n\u2018Indian Reservation, Arizona located in protracted T. 21 \u00b0$., Rs. 5 @6.\u00a3.,\n\nis limited to and whose centerline is more particularly described as follows:\n\n, State of __ Arizona\n\nT.21S., R.GE., G&SRM, Arizona; thence $21\u00b004' 30'W to P.C.Station 34+73.55;3\n\nthence southwesterly, 326.81 feet along Curve No. 1, concave to the southeast\n\n(having an angle of intersection of 19\u00b036'30', a degree of curve of 6900'00\"\nand a tangent of 165,02 feet) to P.T. Station 7+00.36; thence \u00a7 1\u00b028'00'W to\nP.C. Station 10+64.11; thence southeasterly, 544.17 feet along Curve No. 2,\n\nconcave to the east (having an angle of intersection of 27912'30\", a degree of\n\n. A\nRIL \u00bb Document 50-4 Filed 08/27/26 Page 19 of 43\n\n19)\n\n\f\u2018Case 1:26-cv-02127-RJL | Document 50-4 Filed 08/27/26 Page 20 of 43\u00b0\n\npm OS WY HF\n\n10\n1L\n12\n13\n14\n15\n16\n17\n18\n19\n20\nel\na2\n25\n24\n25\n\n26\n\nt\n\n5\u00b000'00\"' and a tangent of 277.31 feet) to P.T. Station 16+08.28; thence\n$25\u00b0HH'30\"E to P.C, Station 3431.62; thence southeasterly, 484,72 feet along\nCurve No. 3, concave to the southwest (having an angle of intersection of\n9\u00b0h1'4O\"', a degree of curve of 2000'00\"and a tangent of 242.94 feet) to P.T.\nStation 394+16.34; thence $16902'50\"E to P.C. Station 56+03.35; thence\nsoutherly, 425.84 feet along Curve No. 4, concave to the west (having an\n\nangle of intersection of 8931'00'', a degree of curve of 2\u00b000'00!' and a\n\ntangent of 213.31 feet) to P.T. Station 604+29.19.Back>= P.T. Station\n\n60+28.35 Ahead EQUATION; thence $731 50\" to P.C. Station 954+33.20; thence\nsoutheasterly, 336.37 feet along Curve No. 5, concave to the northeast\n\n(having an angle of intersection of 6\u00b0;'00\", a degree of curve of 2\u00b000'00\"\nand a tangent of 168,53 feet) to P.T. Station 98+69.85 Back = PiT, Station I\n98+69.10 Ahead EQUATION; thence $14\u00b015'S0\"E to P.C. Station 1424+03.42; thence\nsoutheasterly, 596,25 feet along Curve No. 6, concave to the southwest\n(having an angle of intersection of 11955'30\", a degree of curve of 2\u00b000'00\"\nand a tangent of 299.21 feet) to P,T.Station 147+99.50 Back = P.T. Station\n1474+99.23 Ahead EQUATION; thence $2\u00b0920'20\"E to P.C. Station 212+88.30;\nthence southeasterly, 622.00 feet along Curve No. 7, concave to the north-\neast (having an angle of intersection of 62912'00\", a degree of curve of\n10\u00b000'00\"' and a tangent of 345.63 feet) to end of: right-of -way P.T. Station\n219+10.30, which bears N22\u00b011' 20'W, 1,795.01 feet from the United States-\n\nMexico Boundary Monument Number 144,\n\nThe described easement contains 50.302 acres, more or less.\ni\n\n\f- Cas\n\no nu o2 oO \u00ae& GT N FH\n\nto\n\n10\n\n12\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n25\n24\n25\n28\n27\n28\n29\n30\nol\n32\n\ne 1:26-cv-02127-RJL. Document 50-4 Filed 08/27/26 . Page 21 of 43\n\nshall be actually used for the purpose above specified; PROVIDED, that this\n\nJO HAVE AND-TO HOLD the sald easement and right-of-way unto the\nGrantee and unto Its successors and assigns,togather with the right to\nauthorize, permit and license the use thereof for utility lines, including\nwater and sewer lines, when these are not inconsistent with the use of the\nproperty for a public road, and with the further right in the Grantee, its\nsuccessors and assigns to transfeg sald right-of-way by assignment, grant or\notherwise. .\n\nThe said easement to include the right te cut back and trim such\nportion of the branches and tops of the trees now growing or that may herees*\nafter grow upon the above-desct ibed premises, as may extend ever said right-\nof-way, so as to prevent the same from interfering with the efficient main-\ntenance and operation of said public road.\n\nThis easement is subject to any prior valid existing right or\n\nadverse claim and is without limitation as to tenure, so long as said easement\n\nright-of-way shall be terminable Tn the whole or in part by the Grantor for\nany of the following causes upon 30 days written notice and the failure of the\nGrantee within said notice perfad to comrect the basis for termination ~\n(25 CFR 161.20): |\nA. Failure to comply with any term or condidion of the grant or\nthe applicable regulations.\nB. AAnonuse of the right-of-way for a consecutive two-year period\nfor the purpose for which ft was granted,\nC. An abandonment of the right-of-way.\n\u2018'D, Failure of the grantee, upon the completion of construction\ntoffile with the Grantor an affidavit of completion pursuant to 25 CFR 161.16\nThe condition of this easement shall extend to and be binding upon\n\nand shall insure to the benefit of the successors and assigns of the Grantee.\n\nThis easement is expressly subject to the stipulations required by\n25 CFR 161.5 except those required by subsection (c) thereof are bereby\n\nwaived,\n\n\f\u2018Case 1:26-cv-02127-RJL .Document 50-4 Filed 08/27/26 Page 22 of 43\n\n1 IN WITNESS WHEREOF, Grantor has executed this grant of easement\n2 |i this 26th... ..\u2014 day of Septemher , \\977. 4\n\u2014\n3 UNI TEB-STATES of Glen ch\n4\n|\n5\n5 T, Chrigtman, Superintendent\n8 ulS. PARTMENT OF mre INTERIOR \" G\nBUREAU OF INDIAN AFFAIRS :\n\u201c7 PAPAGO AGENCY '\nSELLS, ARIZONA 85634\n8 ,\n19 |\u201d ACKNOWLEDGMENT\n10 || STATE OF___ ARIZONA yoo 6\n)\n11 || couNTY OF PIMA ) 4\n12 BEFORE ME, a Notary Public, in and for said County and State, on\n13 jl this 26th - day of Soptomber , 19.77 _, personally\n\n14 |i appeared\n\n, whose name is subscribed\n\n15 || to the foregoing Grant of Easement for Right-of-Way as\n\nLe \u2018 Superintendent ___, Bureau of Indian Affairs, and\n\n17 |i. who acknowledged that he is and was at the time of signing the same,\n\n18 ||. Superintendent , Bureau of Indian Affairs; and he\n\n19 || personally acknowledged to me that he executed the said Grant of Easement for I\n20 || Right-of-Way in his official capacity and pursuant to authority delegated to\n\n21 || him for the uses and purposes set forth theretn.\n\n22 : Oo - - -\n\nNeary Roe\n\u201c25\n\n28 || My Commission Expires: March 13, 1901\n27\n\n28\n29\n30\n\n|\n|\n32 |\n\n\fCase 1:26-cv-02127-RJL Document50-4 Filed 08/27/26 Page 23 of 43\n\nATTACHMENT C\n\f&\n\nwm\n\nCase 1:26-cv-02127-RJL Document 50-4 Filed 08/27/26 Page 24 of 43\n\ni TRIBAL GWNED LAND OF PAPAGO IND. RES.\ni INDIVIDUALLY OWNED\n\nGOVERNMENT OWNED\nROUTE NO, 21\n\nGRANT OF EASEMENT FOR RIGHT-OF-WAY i\n\nG 4\n\nKNOW ALL MEN BY THESE PRESENTS:\nThat the United States of America, acting by and through\n\n, Bureau of Indian Affairs,\n\nDepartment of the Interior, Sells, Arizona shereinafter referred to\n\n\"Grantor'', under authority contained in 230 DM1, 10 BIAM 3 and 10 BIAM 11,\n\nand pursuant to the provisions of the Act of February 5, 1948 (62 Stat. 17,\n\n25 U.S.C. 323-328), and Part 161, Title 25, Cade of Federal Regulations, in\nconsideration of ONE DOLLAR ($1.00) and other good and valuable consideration.\nthe receipt of which is acknowledged, does hereby grant to the Bureau of\n\nIndian Affairs, Department of the Interior, its successors and assigns,\n\nhereinafter referred to as ''Grantee!', an easement for a right-of-way for the\nfollowing purposes, namely: The right to enter upon the hereinafter described\nland and grade, level, fill, drain, pave, build, maintain, repair and rebuild\n\na public road, including incidental purposes consistent therewith, together\n\ni with such bridges, culverts, ramps and cuts as may be necessary, on over,\nunder and across the ground embraced withIn the right-of-way situated on the\n\nfollowing described lands located within the Papago Indian\n\nReservation, County of Pima \u00bb State of Arizona\n\nA right-of-way, 100 feet in width across a portion of the Papago\nindian Reservation, Arizona.located in protracted T. 16 $., R. 1 E. EW.,\nT. 17 S., Re 1 WL, Te. 18-S., R. 1 W., Te 19 S., R. 1 E. and surveyed T. 18 5S,,\n\nR. 1 E., G&SRM, Arizona. The said easement as shown on Map Number P=21-2,\n\nattached hereto, is limited to and whose centerline is more particularly\n\ndescribed as follows:\n\nBeginning at Station 570+00.00 (N376, 447; \u00a3377,539: Arizona\n\u201d Rent ral Zone), which bears $ 50\u00b0S7'36\"E, 1,909.52 feet from ''PISITNIMO!!\n(U.$.G.5. Triangulation Station) (N377,649.734; \u00a3376,059.859; Arizona Central\n\nfone); thence $36\u00b042'15'W to P.C. Station $71+70.55; thence southwesterly,\n\n581.60 feet along Curve No. 1, concave to the southeast {having an angle of\n\n_intersection of 5948'58'', a degree of curve of 1900'00\" and a tangent of\n\n1\n\ffet\n\n6\n<\n\ney\n\nib\n\n- the northwest (having an angle of interseation of 9921'08\"', a degree o\n\nCase 1:26-cv-02127-RJL Document50-4 Filed 08/27/26 Page 25 of 43\n\n291,05 feet) to P.T, Station 577+52.15; thence $30\u00b0S4'18'W to PC. Station\n\n588+30.40; thence southwasterly, 935.52 feet along Curve No. 2, concave to\nof\n\n/ curve of 1\u00b000'00' and a tangent of 468.65 feet) to P,f. Station 597165.62;\n\nthence $40\u00b015'26'W te P.C. Station 6664+66.03; thence southwesterly, 781.14\nFeet along Curve No. 3, concave to the southeast (having an angle of inter~\nsection of 23\u00b026'03'', a degree of curve of 3\u00b000'Q0!' and a tangent of 396.11)\nto P.T. Station 674+4+47.17; thence $16\u00b0%9'23'W to P.C. Station 736+67.22;\nthence southerly, 764.78 feet along Curve No. 4, concave to the east (having\nan angle of intersection of 22\u00b056'37'', a degree of curve of 3\u00b000'00' and a\ntangent of 387.58 Feet) to P.T. Station 744432.00; thence S6\u00b0O7'IH'E to PC,\nStation 752+56.03; thence southerly, 853.12 feet along Curve No. 5, concave\nto the west (having an anate. ek intersection of 17903'45'', a degree of curve\nof 2\u00b000'00'' and a tangent of 429.74 feet) to P.T. Station 761+09.15. thence\n$10\u00b056'31'W to P.C. Station 802+49.69; thence southwesterly, 510.56 feet\nalong Curve No. 6, concave to the northwest (having an angle of intersection\nof 5\u00b006'20\", a degree of curve of 1900'00!' and a tangent of 255.45 feet) to\nP.T. Station 887+60.26; thence $16902'S1\"E to P.C. Station 837+29.88; thence\nsouthwesterly, 169.82 feet along Curve No. 7, concave to the northwest (having\nan angle of intersection of 0950'57'', a degree of curve of 0\u00b030'00\" and a\ntangent of 84.91 feet) to P.T, Station 8384+99.70; thence $16953'48\"W to P.C.\nStation 8614+07.25; thence southwesterly, 527.42 feet along Curve No. 8,\nconcave to the northwest (having an angle of intersection of 5\u00b016'27\", a\ndegree of curve of 1\u00b000'00'' and a Rerecae of 263.90 feet) to P,T. Station\n8664+34.67; thence $22\u00b010'15''W to P.C, Station 8914+07.71; thence south-\neasterly, 1,266.56 feet along Curve No. 9, concave to the northeast (having\nan angle of Intersection of 104929'27\", a degree of curve of 8915'00\" and a\ntangent of 896.80 feet) to P.T. Station 903+74.27; thence $82\u00b019'12\"E to P.C,\nStation 907+03.28; thence southeasterly, 526.24 feet along Curve Ne. 36,\n\nconcave to the southwest (having an angle of intersection of BTPD2\" 59\" x\n\ndegree of curve of 4\u00b000'00'' and a tangent of 266.12 feet) to P.\u00a5, Station\n\n| 912+29.52 Back = P.T. Station 0+00.00 Ahead EQUATION; thence S6ISIG'T3\"E to\n\nZz\n\fCase 1:26-cv-02127-RJL Document50-4 Filed 08/27/26 Page 26 of 43\n\n1 ll e.c. station 4406.08; thence southeasterly, 1,870.00 feet along Curve Na. 11\n2 II concave to the southwest (having an angle of intersection of 56906'00, a\n% || degree of curve of 3900'00'' and a tangent of 1,017.63 feet) to P.T. Station\n\n224+76.08; thence SSC1O'1ZE to P.C. Station 145+29.20; thence southeasterly,\n\n\u00bb\n\n\u00a7 i] 540.00 feet along Curve No. 12, concave to the northeast (having an angle of\na ll intersection of 10\u00b048'00'', a degree of curve of 2900'00\" and a tangent of\n\nv {1 270.80 feet) to P.T. Station 150+69.20; thence $15\u00b0SB8'13\"E to P.C. Station\n\n8 |) 271+18.2%; thence southerly, 864.45 feet along Curve No. 13, concave to the\n9 | west (having an angle of intersection of 25\u00b0956'00\"; a degree of curve of\nie 1 3\u00b000'00\" and a tangent of 439.76 feet) to P.T. Station 279+82.66; thence\n\n510\u00b057'47'W to P.C, Station 352+#24.40; thence southeasterly, 949.00 feet\n\n#!\n\n12 |} along Curve No. 14, concave to the northeast (having an angle of intersection\n13 || of 47927100\", a degree of curve of 5\u00b000'00'' and a tangent of 503.62 feet) to\n14 || P.T. Station 3614+73.40; thence $36\u00b029'13\"E to P.C. Station 4464+41.35; thence\n15 || southeasterly, 687.50 feet along Curve No. 15, concave to the southwest\n\n16 (having an angle of intersection of 27\u00b030'00'', a degree of curve of 4\u00b000'g0\"\nLi and a tangent of 350.51 feet) to P.T. Station 453428.85; thence $8959'13\"E to\nx8 || Pic. Station 468+98,29; thence southeasterly, 380.00 feet along Curve No. 16,\n19 concave to the northeast (having an angle of intersection of 1192400\", a\n\n20 |! degree of curve of 3\u00b000'00\" and a tangent of 190.63 feet) to P.T. Station\n\nBi 4724+78.29; thence $20923'13\"E to P.C. Station 543+19.92; thence southerly,\n22 || 550.00 feet along Curve No. 17, concave to the west (having an angle of inter-\n25 section of 22900'00\"', a degree of curve of 4\u00b090'00!' and a tangent of 278.43\n24 || feet) to P.T. Station 548+69.92; thence $1935'53'\"W to end of right-of-way\n\n28 || Station 635+00.00, which bears S3\u00b004'25'W, 2,684.71 feet from U.S.C.&G.5.\n\n28 || BM F341,\n\n27 The described easement contains 224.352 acres, more or less.\n\n2g =\nwo\n30\u00b0\n\nSi\n\n\f1s\n18\nL?\n18\n1&\nwo\n2h\nQe\nfred\n\n3Q\n\nCase 1:26-cv-02127-RJL Document50-4 Filed 08/27/26 Page 27 of 43\n\nTO HAVE AND TO HOLD the said easement and right-of-way unto the\nGrantee and unto its successors and assigns,togather with the right to\nauthorize, permit and license the use thereof for utility TInes, including\nwater and sewer lines, when these are not Inconsistent with the use of the\nproperty for a public road, and with the further right in the Grantee, Its\nsuccessors and assigns to transfee sald right-of-way by assignment, grant or\notherwise.\n\nThe said easement to Include the right to cut back and trim suck\nportion of the branches and taps of the trees now grow!ng or that may here= -\nafter grow upon the above~desctibed premises, as may extend over said right~\nof-way, so as to prevent the same from !nterfering with the efficlent main-\ntenanos and operation of said public road,\n\nThis easement is subject to any prior valid existing right or\nadverse clafm and is without limitation as to tenure, so jong as said sosenent |\nshall be actually used for the purpose above specified; PROVIDED, that this |\nright-of-way shall be terminable In the whole or Im part by the Grantor for |\nany of the following causes upon 30 days written notice and the faiture of che}\nGrantee within said notice perlad to comrect the basis for termination\n(25 CFR 161,20);\n\nA. Failure to comply with any term or condidion of the grant sr\n\n'\n\nthe applicable regulations. -\nB. A\\nonuse of the right-of-way for @ consecutive two-year sertad *\nfor the purpose for which it was granted.\nC, An abandonment of the right-of-way.\nD, Fallure of the grantee, upon the completion of construction\ntoffile with the Grantor an affidavit of completion pursuant to 25 CFR 161.16\nThe condition of thls sasement shalt extend to and be binding upon\nand shal! insure to the benefit of the successors and assigns of the Grantee.)\nThis easement fs expressly subject to the stipulatians required by .\n\n25 CFR 164.5 except those required by subsection (c) thereof are bereby\n\nwaived. |\n\fha NM we\n\n03\n\n10\na\n12\n13\n14\n15\n16\n17\n18\n1?\n20\nel\nan\n25\n\n24\n25\n\nad\n27\n28\n\nCase 1:26-cv-02127-RJL - Document 50-4 \u2018Filed 08/27/26 Page 28 of 43\n\nIN WITNESS WHEREOF, Grantor has executed this grant of easement\n\nthis \u00ab2 & \u00bb day of Odihar 1977.6\n\nUNITED STATES OF AMERICA\n\nra. Christman, Superintendent\nU.S. DEPARTMENT OF THE INTERIOR\nBUREAU OF INDIAN AFFAIRS\n\nPAPAGO AGENCY\n\nSELLS, ARIZONA 85634\n\nACKNOWLEDGMENT\n\nSTATE OF [biggie wv )\nZo: 3\nCOUNTY OF AF pores _)\n\nBEFORE ME, a Notary Public, in and for said County and State, on\n\nthis ck & day of LM Ot tc Ce) \u00bb, \u2018We f , personally\nappeared ~ 4ee fur Sf A KS) efoto, whose aame is subscribed\n\nto the foregoing Grant of Easement for Right-of-Way as\n\nee \u201c w. agit , : \u2018\nwe Not pI Le Care Megle \u00ab2t L ,\u00bb Bureau of Indian Affairs, and\nwho acknowledged that he is and was at the time ot signing the same,\n\ny\n\npersonally acknowledged to me that he executed the said Grant of Easement for\n\nRight-of-Way in his official capacity and pursuant to authority delegated to\n\nhim for the uses and purposes set forth therein,\n\neae * Notary Fublic\n\nMy Commission Cxpires:\n\ni \u2018\nMy Commission Expires Mar. 13, 1981 wa P-ai-a\n\n\u201cA, C6 A 94S, pineal ar seat Zz Bureau of Indian Affairs; and he\n\npie Rea reryeinmeodpe se Stee cs \u2014\n\fCase 1:26-cv-02127-RJL Document50-4 Filed 08/27/26 Page 29 of 43\n\nATTACHMENT D\n\fCase 1:26-cv-02127-RJL Document 50-4 Filed 08/27/26 Page 30 of 43\n\n& AY\na\u201d wi TRIBAL QWNED LANDS OF THE TOHONO O'ODHAM INDIAN RES...\n: INDIVIDUALLY OWNED\nws Ww GOVERNMENT OWNED\nfp\u201d ROUTE NO. {19\n[n <\n: 1 GRANT OF EASEMENT FOR RIGHT-OF-WAY\n: 2 _ KNOW ALL MEN BY THESE PRESENTS:\ni 3 _ * That the United States of America, acting by and\n4 through James A. Barber Superintendent, Papago Agency, Bureau of Indian\n5 . Affairs, Department of the Interior, Sells, Arizona, hereinafter referred ta\n& as \"Grantor\", under the authority contained in 209 DM 8, @30 DM 3.1 and 10\n7 BIAM 11, and pursuant to the provisions of the Act of February 9, 1948 (42\n9 , Stat. 17, @8 U.S.C. 323-928), \u2014 and Part 169, Title @5, Code of Federal\n9 Regulations, in consideration of OGNE DOLLAR (1.00) and other good and\n\u201c10\u00b0 \u00b0 valuable consideration, the receipt of which is acknowledged, does hereby\n11\u00b0 grant to the Bureau of Indian Affairs, Department of the Interior, its\nid . successors and assigns, hereinafter referred to as the \"Grantee\", an\n13 easement for right-of-way for the following purposes, namely: The right to\nig . enter upon the hereinafter described Land and grade, lavel, fill, drain,\n15\u00b0 . paves maintain, repair and rebuild a public road, including incidental\n16 purposes therewith, together with such bridges, culverts, ramps and cuts as\n17 may be necessary, on, over, under and across the ground embraced within the\n18 right-of-way gituated an the following described lands lacated within the\nig Tohono O'odham Indian Reservation, County of Pima , State of Arizona:\n20 THE FOLLOWING DESCRIBED RIGHTS-OF-WAY ARE IN\n21 ADDITION AND LIE ADJACENT AND CONTIGUOUS TO THE ROAD RIGHT-OF-WAY FOR TOHONO\nen O-oDHAM ROUTE 19 (R/W DWG. NO. P-19-1) APPROVED BY THE AGENCY SUPERINTENDENT\n23 ON SEPTEMBER 13, 1978 AND FILED IN THE LAND TITLES AND RECORDS OFFICE as\nR/W NO. P-19-3\n4\n\n\f' Cage 1:26-cv-02127-RJL Document 50-4 Filed 08/27/26 Page 31 of 43\n\n10\n\n11\n\n12 -\n\n13\n\n14. -\n\nis.\n\n16\n\n172\n\n19\n\nco -\n21.\n\nee \u00a2\n\nDOCUMENT NO. 10-78.\n\nA right-of-way, 80 feet, 40 feet and SO feet in width\nacross a portion of the Tohono O'odham Indian Reservation located in\nprotracted Ts. 17 and 18 5., R. SE., GASRM, Arizona. The said easement as\n\nshown on Dwg... No. P-19-3, attached hereto, is more particularly described as\n\nfollows in relation to R/W Number P~19-t:\n\nSITE No. \u00a7 Being 20 feet in width and 550 feet in length lying adjacent and\n\ncontiguous to the east side of. the existing 100 foot wide Right-of-way, 50\n\nfeet Lt. & Rt. of centerline, Beginning at Station 37+72.50 and ending at\n\nStation 49+2e.50,\n\nSITE No. @ Being 20 feet in width and 350 feet in length lying adjacent and\ncontiguous to the west side of the existing 100 foot wide Right-of-way, 50\nfeat Lt. & Rt. of centerline, Beginning at Station 37+72,.50 and ending at\n\nStation 41+22.50.\n\nSITE We. 2 Being 40 feet in width and 170 feet in length lying adjacent and\n\ncontiguous to the west side of the existing 100 foot wide Right-of-way, 50\nfeat Lt. & Rt. of centerline, Beginning at Station 78+72.50 and ending at\n\nStation 79+92.50.\n\nSITE No. & Being 40 feet in width and 75 feet in length lying adjacent and\n\ncontiguous to the east side of the existing 100 foot wide Right-of-way, 50\n\nfeat Lt. & Rt. of centerline, Beginning at Station G6+97.90 and ending at\n\nStation O87+72.950.\n\nR/W ONO. P-19-3\n\n\fnm\n\nCase 1:26-cv-02127-RJL Document 50-4 Filed 08/27/26 Page 32 of 43\n{ i\n\nSITE No. 5S Being SO feet in width and 1300 feet in length lying adjacent\nand contiguous to the wast side of the existing 100 foot wide Right~of-way,\n\"SO Feat Lt. & Rt. of centerline, Beginning at Station 944\u00a222,.50 and ending at\n\nStation 110+17.40.\n\nSITE No. 4 Being 40 feat in width and 100 feet in length lying adjacent and\ncontiguous to the east side of the existing 100 foot wide Right-of-way, 50\nfeet Lt. & Rt. of centerline, Beginning at Station 165+17.40 and ending at\nStation 166+17.40.\n\ntg\n\nThe destribed rights-of-way contain & \u00a362 aches, more or less.\n\nR/W NO, P-19-3\n\n\fCas,\n\no nN OH\n\n10\nii\n12\n13\n14\n\n15\n16\n\n17\n\n18\n19\n20\n21\n22\n23\n24\n25\n26\n27\n28\n\ne 1:26-cv-02127-RJL Document 50-4 \u2014 Filed 08/27/26 Page 33 of 43\n\nTO HAVE AND TO HOLD the said easement and right-of-way unto\nthe Grantee and with further right in the Grantee, to transfer said\n\nright-of-way by assignment, grant or otherwise.\n\nThe said easement to include the right to cut back and trim\nsuch portion of the branches and tops of the trees now growing or that may\nhereafter grow upon the above-described premises, as may extend aver said\nright-of-way, so as to prevent the said ftom interfering with the\nefficient maintainence and operation of said drainage for a public road.\n\nThis easement is subject to any prior valid existing right or\nClaim and is without Limitation as ta tenure, so long as said easement\nshall be actually used for the purpose above specified, PROVIDED, that this\nright-of-way shall be terminable in the whole or in part by the Grantor for\nany of the following causes upon 30 days written notice and the failure of\nthe Grantee within said- notice period to correct the basis for termination\n(25 CFR 169.20).\n\nAe Failure to comply with any term or condition of the\n\ngrant or the applicable regulations.\n\nB. A nonuse of the right-of-way for a consecutive\n\ntwo-year period for the use for which is was granted.\n\nCc. Abandonment at the right-of-way.\n\nBe Failure of the Grantee, upan completion of\n\nconstruction to file with the Grantor and affidavit\n\nof completion pursuant to 25 CFR 169.16.\n\n4 R/W No, P+19-3\n\n\fCase 1:26-cv-02127-RJL Document 50-4 Filed 08/27/26 Page 34 of 43\n\n1 The condition of this easement shall extenc |\n21 to and be binding upon and shall inure to the benefit of the successors anc\n3 assigns of the Grantee,\n4 This easement is expressly subject to the\n5) stipulations required by 25 CFR 169.5, except those required by subsection (c)\n8 | thereof are hereby waived.\n7 IN WITNESS WHEREOF, Grantor has executed this\n8 | Grant of Easement this G Sk. of PVarate , 19 Go . |\n\u201cy 10 |\n- il UNITED STATES OF AMERICA |\n12\n13 |\n\n14 . Boe?\n15 4 he Licfs.\n\n\u2018 16 a GAMES A. BARBER, SUPERINTENDENT\n4 17 Be UNITED STATES DEPARTMENT OF THE INTERIOR\n- . BUREAU OF INDIAN AFFAIRS\n\nPAPAGO AGENCY 2\n\noe 18 P.O. BOX 578\n19 SELLS, ARIZONA 85634\n20\n21\n22\n\n23\n\n24\n\n29\n26\n27\n\n28\n3 R/W No. P+19-3\n\n\f\u00a9 1:26-cv-02127-RJL Document 50-4 Filed 08/27/26 Page 35 of 43\n\nCase\n1 ACKNOWLEOGEMENT\n3 STATE OF AZ\n3 | COUNTY OF prima _)\n4 BEF ORE ME, a Notary Public, in and for said county and state,\n5 || on this 9th _ day of. MARCH \u00bb 1990, personally\n6 appeared Nina M. Innis , whose name is subscribed\n7 | to the foregoing Grant of Easement for Right-of-Way as Acting Superintendent\n8 . Papago Agency, ; Bureau of Indian Affairs, and\ng || who acknowledges that he is and was at the time of signing the same,\n10 Nina M, Innis, Acting Superintendent, ; Bureau of Indian Affairs, and\n11 i he personally acknowledged to m\u00e9 that he executed the said Grant of\n12 Easement for Right-of-Way in his official capacity and pursuant to\n13 |} authority delegated to him for the uses and purposes set forth therein.\n14 joc\u201d\n17 . : , Notary Public\ni8\n\n19 || My Commission Expires: August 5, 1990\n\n20\nal\n\nae\n20\n24\n\n25\n26\n\na7\n\n28\n6 R/W NO. P-19-3\n\n\fCase 1:26-cv-02127-RJL Document50-4 Filed 08/27/26 Page 36 of 43\n\nATTACHMENT E\n\fPage 37 of 43\n\nFiled 08/27/26\n\nDocument 50-4\n\nCase 1:26-cv-02127-RJL\n\nS00Z suBAa}g \u201c4 Aq paRyABy\naquens ,\n\nRae NVAIOUT ININNVTd NOLLVLYOASNVEL\noe ST, LNAINLYVALA ININNVTd\n\n= \u2122 gsm -- OD NOILLVN WVHd0,0 ONOHOL\n\nf Nvs ye\ngSjonbip youpy ay\n1918110 =~ wt oO\nff 9s,\n\nayFouD\nS POW, azojo09) O\n\npespspuin, \u00a9\n\nOG\n\noot,\nJeeta\n\n_\n\n.\nSore\n574 A\n(rere!\n\nSL OaESIG\n\nY\ni\n\n1}\nY\n\n\u2018gjeag\nub\n\nAai10A uBoI9 ]\n\nrid [eau\nuayoug\n\n\\ * LoldLsid\n% YAIAVX NVS\nMaqjaunn\nuonDAuasay soneu upg youn \\ youpy 5, Hon\nrai \\ f DEP nba) onosog PSO PUPS OW osoy D}UDg joouss tAupyuauisy4 Oo 8\nan uous ups\n\nUHI\n1S ISOM\n\no His ea\nDIaI05)\n\nO AVOL HNHIS\nIBA\n8 uBend\n\nfin, Nau\ndl)\n\n{DA\n\nAaa 010 Pe \u201caaIs w\u2014 \\\nNX ojqeng Lo LDHLSIG, i NVMDIDIH BY Ise\nA\na\n\nyO) ANYOS\n\nNOILVAMAS34\n\nBPIOA O1DIe\u2019 cet Tame\nUOISIAIDaNS Gry\n\nINDYA WNoOS\u00a5d\n\nWwe0)\n3\n\nALNNOD Ne VW Id\n7 V N | d any HINON mh\n\nloucyo) AVGIO 4S\n\nN Wte\n\nALNNOOD\n\nupgaunp &\n3200\nPOY Pay\nyaqoujoop /tupg cael\na OLUOY,\n\n\u201d SWavV4 321\n\u00e9 AON NWS zi =\n\nSM wuey\nDAIDA, >\ne 41nga}4905) a\noynn2 Ici! 3 ss0q \u2014\u2014\nig asuouayium D\nU\n>\n\nJQNVeD >| [ret So aNd\n\nvsvo | @ Teas rm V1I9\nVSS\n\nPug OUD\n\n0 Ayunwwaosy Aon upg\noa\n\naT\n\npun, OF\n\nALNNOD\n\newe: \u201c0\n\na sy, af 19lisia *\n\nsont Kyunuwog NY e| AONT NVS\n82uUal0)/4 3\n\n\fCase 1:26-cv-02127-RJL Document50-4 Filed 08/27/26 Page 38 of 43\n\nATTACHMENT F\n\fCase 1:26-cv-02127-RJL Document50-4 Filed 08/27/26 Page 39 of 43\n\nBIA TAAMS No, 4200185226\nAllotment No(s).\nTribal Tract No{s).\n\nUNITED STATES OF AMERICA\nDEPARTMENT OF THE INTERIOR\nBUREAU OF INDIAN AFFAIRS\nPAPAGO AGENCY,\n\nP.O. BOX 490,\nSELLS, ARIZONA 85634\n\nGRANT OF RIGHT-OF-WAY\n\nThe United States of America, acting by and through the Bureau of Indian Affairs (\u201cBIA\u201d), Department of the\nInterior, Papago Agency _, P.O. Box 490, Sells, Arizona 85634 for, and on behalf, with\nthe consent of: _ The Tohono O\u2019odham Nation {the \u201cNation\u201d) (the \"GRANTOR\u2019), under authority of the\nAct of February 5, 1948 (62 Stat. 17, 25 U.S.C. \u00a7\u00a7 323-328), and Part 169, Title 25, Code of Federal\nRegulations, which by reference are made a part hereof, does hereby grant to: Department of Homeland\nSecurity/US Customs and Border Protection, of c/o Hector Montalvo, 24000 Avila Road, Suite 5020, Laguna\nNique!l, CA 92677 (the \u201cGRANTEE\u2019),\n\n1. GRANT. In consideration of: A iump-sum payment of $2,100,000 providing agreed-upon compensation\nfor this right-of-way and the other rights-of-way related to the IFT project as sat forth in Exhibit \"A\", paid to\nthe Nation no later than thirty (30} days after the effective date specified in Section 14 below.\n\nThis right-of-way is limited to and more particularly described to be 252.4817 acres, as shown on\n\nExhibit \u201cB\u201d (legal descriptions, maps of definite focation)(the \"PROPERTY\u2019). This is known as portions of the\nTraditional Northern Road. Pursuant to 25 C.F.R. \u00a7 169.110 and Tohono O'odham Legislative Council\nResolution No. 19-088, attached as Exhibit C, the Nation has negotiated with GRANTEE for compensation\nthat is satisfactory to the Nation, the Nation has waived valuation by the BIA, and has determined that\naccepting such agreed-upon compensation and waiving valuation is in its best interest. The Nation is not\nrequesting that the BIA determine fair market value.\n\nGRANTOR do\u00e9s nerebdy grant to GRANTEE, a righi-of-way for GRANTEE, its officers, agents, and\ncontractors fo enter the PROPERTY, for:\n\nA non-exclusive grant of easement for right-of-way for construction, maintenance, operation and repair of\nportions of the Traditional Northern Road, including necessary and related improvements to that road, such\nas drainage culverts, low-water crossings, and signage.\n\n2. TERM. This right-of-way is for a term of _ 25-years so long as the right-of-way is used for the purpose\nabove specified.\n\n3. CANCELLATION.\n{A) This right-of-way may only be cancelled\n\n(1) in accordance with 25 \u20ac.F.R. Part 169 for abandonment, non-use, or violatian of the right-\nof-way grant or right-of-way documents, including but not limited to encroachments beyond the\ndefined boundaries, accidental, willful, and/or incidental trespass, unauthorized new construction,\nchanges in use not permitted in the grant, or Jate or insufficient payment; or\n\n(2) by the GRANTOR fer non-use of the right-of-way after construction has been completed\nand the technology has been installed for any consecutive two-year period (for the purpose for\nwhich it was granted) upon 30 days written notice, and failure of the GRANTEE within said notice\nperiod to correct the basis for cancellation.\n\n\fCase 1:26-cv-02127-RJL Document50-4 Filed 08/27/26 Page 40 of 43\n\n(B) The authority to cancel is independent of, and in addition to, the Nation's authority to terminate the\nright-of-way grant; and a violation forming the basis far cancellation may also form the basis for termination,\n\n4. TERMINATION.\n\n{A) The Nation may terminate the right-of-way grant in accordance with this Section 4 without BIA\napproval and the termination shall be effective without BIA canceliation; provided that the Nation will provide\nthe BIA with written notice of the termination so that it may be recorded in tne Land Title Records Office.\n\n({B) The authority to terminate is independent of, and in addition to, the BIA\u2019s authority to cancel the\nright-of-way grant; and a violation forming the basis for termination may also form the basis for cancellation.\n\n(C) The Nation will follow the same process for termination of rights-of-way as is provided for BIA\ncancellation in 25 C.F.R. Part 169 for the cancellation of rights-of-way, as applicable, provided that the\nNation\u2019s Realty Office, and not the BIA, shall determine if there has been a vialation of the conditions of the\ngrant and otherwise perform the applicable functions of the BIA as set forth under the Part 169 cancellation\nprovisions, and shall provide a copy of a written notice of violation and other relevant notices regarding the\ntermination process to the BIA Papago Agency (\u201cAgency\u201d) and BIA Western Regional Office (\u201cWRO\u201d).\nWithin 10 business days of the GRANTEE\u2019S receipt of a notice of violation, the Nation will provide\nGRANTEE with the opportunity tc meet and discuss the cure for an alleged violation, provided that\nGRAN7EE retains the right to dispute the determination that a violation has occurred, request additional\ntime to cure the viclation, and otherwise exercise GRANTEE\u2019s rights in accordance with 25 C.F.R. Part 169,\nSubpart F. A right of appeal pursuant to this Section 4 shall not be permitted.\n\n5. RENEWAL. The GRANTEE has an option to renew the right-of-way for an additional term of between\n19 and 25 years. The GRANTEE must provide written notice to the Nation and BIA of the intent to renew\nthe right-of-way 36 months priar to the end of the original term. Compensation for the renewal term will be\nnegotiated with the Nation beginning when the netice of intent to renew is received and the parties may\nobtain appraisals of the PROPERTY to assist in negotiations.\n\n8. BEST MANAGEMENT PRACTICES. The Grantee agrees to comply with any best management\npractices or conditions in the IFT Final Environmental Assessment (March 2017), attached as Exhibit D, to\nreduce or eliminate potential adverse impacts on the human and natural environments within the right-cf-\nway area. The Grantee will make a good faith attempt to resolve any actual deviation from the best\nmanagement practices or conditions set forth in the IFT Fina! Environmental Assessment (March 2017).\nThe Grant\u00e9e and the Nation agree that any actual or alleged deviation from any best management\npractices or conditions described in the IFT Final Environmental Assessment and intended to reduce or\neliminate potential adverse impacts on the human and natural environments within the right-of-way area\nshall be subject to the notice, opportunity to cure, and additional provisions of 25 C.F.R. Part 189 for\ncanceilation or termination of the right-of-way.\n\n7. RESERVATION OF JURISDICTION. To the extent consistent with Federal law, the Nation maintains its\nexisting jurisdiction over the iand, activities, and persons within the right-of-way and this grant does not\ndiminish to any extent (a) the Nation\u2019s power to tax the fand, any improvements on the land, or any person\nor activity within, the right-of-way; (b) the Nation's authority to enforce tribal law of general or particular\napplication on the land subject to and within the right-of-way, as if there were no grant of right-of-way; {c)\nthe Nation\u2019s inherent sovereign power io exercise civil jurisdiction over non-members on Indian land, or (d)\nthe character of the land subject to the right-of-way as Indian country under 18 U.S.C. \u00a7 1151.\n\n8. LAWS. GRANTEE shail comply with all applicable federal laws, and the Nation's iaws which are not\ninconsistent with applicable federal law. Notwithstanding any provision in this grant of right-of-way,\nGRANTEE lacks authority to waive the United States\u2019 federal sovereign immunity for any purpose, and\nnothing in this agreement should be construed as a waiver of any federal sovereign immunity of GRANTEE\nor the United States federal government generally. Nothing herein shall require GRANTEE to perform any\nact or omission in a manner that would constitute a violation of federal law.\n\n\fCase 1:26-cv-02127-RJL Document50-4 Filed 08/27/26 Page 41 of 43\n\n9. REGULATORY PROVISIONS.\n\n{A) The Nation has the right to reasonabie access te the lands subject tc the grant, which are\nunallotted tribal land. Specifically, the Nation, its employees and agents, and Nation\u2019s members may use\nthe Traditional Northern Road for travel and any purpose not inconsistent with the primary purpose for\nwhich the right of way is granted.\n\n(B) The GRANTEE has ne right to any of the products or resources of the land, including but not\nlimited to, timber, forage, mineral, and animal resources, unless otherwise provided for in the grant.\n\n(C) BIA may treat any provision of a grant that violates Federal law as a violation of the\ngrant.\n\n(D) If historic properties, archesiogical resources, human remains, or other cuitural items not\npreviously reported are encountered during the course of any activity associated with this grant, all\nactivity in the immediate vicinity of the properties, resources, remains, or items will cease and the\nGRANTEE will contact BIA and the Nation fo determine how to proceed and how to conduct appropriate\ndisposition in accordance with the IFT Final Environmental Assessment Best Management Practices.\n\n(E) GRANTEE must:\n\n(i) Construct and maintain imprevements within the right-of-way in a professional manner\nconsistent with industry standards;\n\n(li) Pay promptly all damages and compensation determined by the BIA to be due the Nation and\nauthorized users and occupants of land as a result of the granting, construction, and maintenance\nof the right-of-way, as described in Exhibit E, attached hereto;\n\n{iii} Restore the land as nearly as may be possible to its original condition upon the completion of\nconstruction, as described in Exhibit E, attached hereto;\n\n{iv} Clear and keep clear the land within the right-of-way, to the extent compatible with the\npurpose of the right-of-way, and dispose of ail vegetative and other material cut, uprooted, or\notherwise accumulated during the construction and maintenance of the project;\n\n(v) Comply with ali laws as outlined herein at Section 8 and obtain all required permits;\n\n(vi) Not commit waste,\n\n(vil) Operate, repair and maintain improvements consistent with the right-of-way grant;\n\n(viii) Build and maintain necessary and suitable crossings for all roacs and trails that intersect the\nimprovements constructed, maintained, cr operated under the right-of-way;\n\n{ix} Restore the land to its original condition, as much as reasonably possible, at the end of the\nright-of-way term, cr any renewal term, or upon cancellation or termination of the right-of-way, as\ndescribed in Exhibit E, attached hereto:\n\n(x) At all times keep the BIA, and the Naticn, informed of the GRANTEE'\u2019s address;\n\n(xi) Refrain from interfering with the landowner\u2019s use of the iand, provided that the\n\nlancdowner\u2019s use of the land is not inconsistent with the right-of-way, however, as noted\n\nabove, tribal members are not authorized ta access or use the land within the fenced\n\nperimeter of the IFT tower sites except as provided herein;\n\n(xii) Comply with the following due diligence requirements: GRANTEE will provide the Nation\u2019s\nRealty Office, Roads Program, Environmental Protection Office, Wildlife and Vegetation\nManagement Program (\"\u201cW/VMP\"), Tribal Historic Preservation Office (\u201cTHPO\u201d), Chukut Kuk\nDistrict, and Gu Vo District with construction schedules and scopes of work for the construction\nprocess associated with the right-of-way. GRANTEE snall complete consiruction within the\nschedule provided cr as amended by the parties.\n\n{F) indian Preference. To the extent permitted by federal procurement statutes and regulations,\nGRANTEE\u2019S contractors or contractors of other federal agencies performing work in the rights-of-\nway shall provide Indian preference in accordance with 13 Tohono O'odham Code Chapter 1 \u2014 Tribai\nEmployment Rights.\n\n10. ENCROACHMENT. GRANTEE may not unreasonably withhold its consent for a new right-of-way\nwithin its existing right-of-way that does not interfere with the use or purpose of its right-of-way.\n\n\fCase 1:26-cv-02127-RJL Document50-4 Filed 08/27/26 Page 42 of 43\n\n11. AMENDMENT. This grant may not be amended except as provided in 25 C.F.R. \u00a7\u00a7 169.204 -\n169.206.\n\n12, ASSIGNMENT. This grant_may not be assigned without applicable consent and BIA\napproval and within 30 days, a copy of the assignment and supporting doctiments will be sent to BIA\nfor recording in the LTRO. As GRANTEE is a Department/Agency of the United States, a change\nin the name of the Department/Agency or a transition of this border security function to another\nDepartment/Agency is not considered an Assignment and does not require consent of the Nation or\napproval! of the GRANTOR.\n\n13. MORTGAGE. As GRANTEE is a Department/Agency of the United States, this grant_may not be\nmortgaged,\n\n14. EFFECTIVE DATE. Grant will be effective on the date it is approved by the BIA. The\nGRANTEE's obligations are triggered on August 29,2019 (if applicable),\n\n15. REMEDIES. Any disputes regarding violations, abandonment, or non-use may be addressed in\naccordance with 25 CFR 169, Subpart F, as may be amended.\n\n16. BINDING EFFECT. The terms of this grant shall extend to and be binding upen and shall inure to\nthe benefit of the successors of the GRANTEE.\n\n17, CONSENT. The Nation consented to this right-of-way grant in Legislative Council Resolution No.\n19-088. This Grant of Right-of-Way shall remain in effect notwithstanding any subsequent Legisiative\nCouncil resolutions revoking or modifying such consent; provided that the grant may be cancelled or\nterminated in accordance with the provisions of 25 C.F.R. Part 169 and this grant.\n\n18. ADDITIONAL CONDITIONS OR RESTRICTIONS. This grant incorporates by reference the\nterms, conditions, and restrictions set out in the following, additional right-of-way documents that\nare incorporated by this reference:\n\nA) Compensation Agreement, attached as Exhibit A.\n\nB)} Legal Description, attached as Exhibit B.\n\nC) Tribal Resolution No. 19-088, attached as Exhibit C.\n\nD) The IFT Final Environmental Assessment (March 2017), attached as Exhibit D.\n\nE) Grantee\u2019s Restoration Obligations and Limitations, attached as Exhibit E.\n\nF) the Agreement Between the Tohono O\u2019odham Nation and United States Customs\nand Border Protection concerning Grants of Easement for Rights-of-Way for\nIntegrated Fixed Tower sites (including Access Roads and Approach Roads),\nportions of the Traditional Northern Road, and Low Water Crossings, attached as\nExhibit F.\n\n(\n(\n(\n(\n(\n(\n\n19. FIVE-YEAR REVIEW, GRANTEE and the Nation, in consultation with affected members,\ncommunities, and districts, shall conduct a detailed review of the construction, maintenance, operation,\nand repair of the Traditional Northern Road every five years, including for compliance with these\nconditions, additional right-of-way documents, and all applicable laws and regulations. To the extent\nthese five-year reviews inciude potential compliance issues, GRANTEE and the Nation agree to work\ncooperatively to remedy potential compliance issues with the understanding that the 25 year right-of-way\nwill remain in effect in accordance with its terms and applicable laws and regulations, including 25 C.F.R.\nPart 169.\n\nIN WITNESS WHEREOF, GRANTOR, pursuant to the delegated authority found in 209 DM 8, 230 DM 1,\nand 3 IAM 4 and suppiements thereto (or applicable delegation of authority), is granting and executing\nthis grant of easement on this day of (month), 2019.\n\n\fCase 1:26-cv-02127-RJL Document50-4 Filed 08/27/26 Page 43 of 43\n\nU.S, Department of the Interior\nBureau of Indian Affairs\nRegiona! Director/Superintendent\n\nUNITED STATES OF AMERICA Yer. hi\nBY ay\n\nACKNOWLEDGEMENT\n\nSTATEOF: A4Z/Z20V/A\n\n83.\n\nCOUNTY OF : LN AE\n\nSubscribed and sworn to before me this 24 day of Aud st\n\n2014\n\n\\ GLE\n\nne of Notary Public\n\nCo\nMy-commission expires 0? if i 20 2 2-\n\nSANDY J HENDRICKS\nNotary Public - Arizona\n\nPima County\nCommission # 550471\n\n","ocr_status":1,"date_upload":"2026-08-27T22:04:12.010062-07:00","document_number":"50","attachment_number":4,"pacer_doc_id":"045012309125","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Declaration of Beverly Matthews","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/491661029/","id":491661029,"tags":[],"absolute_url":"/docket/73493770/50/5/tohono-oodham-nation-v-mullin/","date_created":"2026-08-27T20:11:56.326058-07:00","date_modified":"2026-09-10T13:19:33.076895-07:00","sha1":"7c1480a46b788356d9710c78677ff6b21c77c8c5","page_count":6,"file_size":1269805,"filepath_local":"recap/gov.uscourts.dcd.293593/gov.uscourts.dcd.293593.50.5.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.dcd.293593/gov.uscourts.dcd.293593.50.5.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 1:26-cv-02127-RJL Document 50-5 Filed 08/27/26 Page i1iof6\n\nTHE UNITED STATES DISTRICT COURT\nFOR THE DISTRICT OF COLUMBIA\n\nTOHONO O\u2019ODHAM NATION,\na federally recognized Indian tribe,\n\nPlaintiff, Case No. 26-cv-2127-RJL\nV.\n\nMARKWAYNE MULLIN, in his official\ncapacity as Secretary of U.S. Department of\nHomeland Security; RODNEY SCOTT, in his\nofficial capacity as Commissioner of U.S.\nCustoms and Border Protection; and\nROSARIO VASQUEZ, in his official\ncapacity as Chief of U.S. Border Patrol,\n\nDefendants.\n\nTHIRD DECLARATION OF RIYAZ A. KANJI\n\nI, Riyaz A. Kanji, declare the following on the basis of personal knowledge to which I am\ncompetent to testify:\n\n1. I am an attorney at law, duly admitted to practice before this Court. My law firm\nrepresents the Tohono O\u2019odham Nation (\u201cNation\u201d) in the above-captioned lawsuit. I am fully\nfamiliar with the facts and circumstances of this case. I make this declaration in support of the\nNation\u2019s Motion for Preliminary Injunction Pending Appeal.\n\n2. Attachment A is a true and correct copy of an August 25, 2026 emailed letter\nfrom Henry N. Laxdal, Acting Chief Patrol Agent for the United States Border Patrol, Tucson\n\nSector, to the Nation\u2019s Chairman, Verlon M. Jose.\n\fCase 1:26-cv-02127-RJL Document 50-5 Filed 08/27/26 Page 2of6\n\nI declare under penalty of perjury that the foregoing is true and correct.\n\nDated this 27th day of August, 2026\n\nBy: /s/ Riyaz A. Kanji\nRiyaz A. Kanji\n\nAttorney at Law\n\nKanji & Katzen, P.L.L.C.\n\n\fCase 1:26-cv-02127-RJL Document 50-5 Filed 08/27/26 Page 3of6\n\nATTACHMENT A\n\fCase 1:26-cv-02127-RJL Document 50-5 Filed 08/27/26 Page 4of6\n\nThursday, August 27, 2026 at 11:52:04 Eastern Daylight Time\n\nSubject: Fw: CBP Notice of Geotech Survey\n\nDate: Tuesday, August 25, 2026 at 10:09:11 AM Eastern Daylight Time\n\nFrom: Verlon M. Jose\n\nTo: Jesse F. Navarro, Janet B. Eleando, Vivian Saunders, Riyaz Kanji, Sipbison, V. Heather, Howard Shanker,\nMichael Ehlerman\n\ncc: Carla L. Johnson, Heather Clah, matts\n\nAttachments: image002.png, CBP Notice of Geotech Survey.pdf\nFYI\n\nReceived this today. Checked my email at 6:00 a.m.\n\nAt 4:00 a.m. this morning, | received a call informing me of a large caravan heading\nsouthbound on FR 19. | called TOPD dispatch to inform. TOPD was aware and in route. As\n\nof this communication | have not received any updates from TOPD.\n\nLot of calls and text messages coming informing of seeing lot of vehicles together on the\nNation.\n\nSee email and attached received this morning.\n\nGet Outlook for iOS\n\nFrom: LAXDAL, HENRY N \n\nSent: Tuesday, August 25, 2026 4:59 AM\n\nTo: Verlon M. Jose ; Samuel Fayuant\n\n\nCc: LAXDAL, HENRY N ; CRISTINZIO, STEPHEN\n\n\nSubject: CBP Notice of Geotech Survey\n\nYou don't often get email from henry.n.laxdal@cbp.dhs.gov. Learn why this is important\n\nDear Chairman Jose and Mr. Fayuant,\n\nU.S. Customs and Border Protection (CBP) is writing to formally notify you of upcoming\ngeotechnical surveying activities to be conducted within the 60-foot Roosevelt Reservation.\n\nThese activities are scheduled to commence on August 25, 2026. Federal officers and contractors\nwill begin identifying drill sites at 0500 hours, with geotechnical testing operations scheduled to\nbegin at 1100 hours. The survey area spans from the Pozo Verde Mountain range to the Horse\nPeak area, extending toward the Santa Rosa Mountains. We anticipate these activities will\n\n10f3\n\fCase 1:26-cv-02127-RJL Document 50-5 Filed 08/27/26 Page 5of6\n\nconclude no later than September 4, 2026, spanning a duration of approximately 7 to 10 days.\n\nThe survey requires the drilling of soil test borings, approximately 6 to 10 inches in diameter.\nUpon the collection of necessary samples, all boreholes will be backfilled and the site restored.\n\nConsistent with CBP\u2019s commitment to ongoing coordination with the Tohono O\u2019odham Nation\nand previous discussions between the Department of Justice and the Nation\u2019s counsel, the\nTohono O\u2019odham Nation is invited to have cultural monitors present during these activities.\nPlease be advised that while the Nation\u2019s monitors are welcome to observe, they will not have\nthe authority to halt operations. CBP will have designated monitors on-site who possess the sole\nauthority to temporarily suspend work in the event of an inadvertent discovery of cultural\nresources.\n\nWe appreciate your continued partnership and cooperation as we conduct this essential work.\nPlease let us know if you have any questions or require further information.\n\n2 of 3\n\fCase 1:26-cv-02127-RJL Document50-5 ~~ Filed 08/27/26\n\n1300 Pennsylvania Avenue NW\nWashington, DC 20229\n\n\\ U.S. Customs and\nBorder Protection\n\nAugust 25, 2026\n\nVerlon Jose\n\nChairman\n\nTohono O\u2019odham Nation\nP_O. Box 837\n\nSells, AZ 85634\n\nSamuel Fayuant\n\nTribal Historic Preservation Office\nTohono O\u2019odham Nation\n\nP.O. Box 837\n\nSells, AZ 85634\n\nSUBJECT: Notice of Geotechnical Surveying within the 60\u2019 Roosevelt Reservation\n\nDear Chairman Jose and Mr. Fayuant,\n\nU.S. Customs and Border Protection (CBP) is writing to formally notify you of upcoming\ngeotechnical surveying activities to be conducted within the 60-foot Roosevelt Reservation.\n\nThese activities are scheduled to commence on August 25, 2026. Federal officers and contractors\nwill begin identifying drill sites at 0500 hours, with geotechnical testing operations scheduled to\nbegin at 1100 hours. The survey area spans from the Pozo Verde Mountain range to the Horse\nPeak area, extending toward the Santa Rosa Mountains. We anticipate these activities will\nconclude no later than September 4, 2026, spanning a duration of approximately 7 to 10 days.\n\nThe survey requires the drilling of soil test borings, approximately 6 to 10 inches in diameter.\nUpon the collection of necessary samples, all boreholes will be backfilled and the site restored.\n\nConsistent with CBP\u2019s commitment to ongoing coordination with the Tohono O\u2019odham Nation\nand previous discussions between the Department of Justice and the Nation\u2019s counsel, the\nTohono O\u2019odham Nation is invited to have cultural monitors present during these acttvities.\nPlease be advised that while the Nation\u2019s monitors are welcome to observe, they will not have\nthe authority to halt operations. CBP will have designated monitors on-site who possess the sole\nauthority to temporarily suspend work in the event of an inadvertent discovery of cultural\nresources.\n\nWe appreciate your continued partnership and cooperation as we conduct this essential work.\nPlease let us know if you have any questions or require further information.\n\nHenry N. Laxdal\n\nActing Chief Patrol Agent\nTucson Sector\n\nU.S. Border Patrol\n\nRespectfully,\n\nHenry N. Laxdal\n\nActing Chief Patrol Agent\n\nU.S Border Patrol | Tucson Sector\n202.644.2618 Gov\n\nPage 6 of 6\n\n3 0f 3\n","ocr_status":1,"date_upload":"2026-08-27T22:04:12.538413-07:00","document_number":"50","attachment_number":5,"pacer_doc_id":"045012309126","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Declaration of Riyaz A. Kanji","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/491661030/","id":491661030,"tags":[],"absolute_url":"/docket/73493770/50/6/tohono-oodham-nation-v-mullin/","date_created":"2026-08-27T20:11:56.354076-07:00","date_modified":"2026-09-10T13:19:33.094420-07:00","sha1":"4e4d8544b1d8b210f8f92bcaddd4f21d0c04c244","page_count":2,"file_size":160416,"filepath_local":"recap/gov.uscourts.dcd.293593/gov.uscourts.dcd.293593.50.6.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.dcd.293593/gov.uscourts.dcd.293593.50.6.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 1:26-cv-02127-RJL Document 50-6 Filed 08/27/26 Page 1 of 2\n\n\n\n\n THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLUMBIA\n\n\n\n TOHONO O\u2019ODHAM NATION,\n a federally recognized Indian tribe,\n\n Plaintiff, Case No. 26-cv-2127-RJL\n\n v.\n\n MARKWAYNE MULLIN, in his official\n capacity as Secretary of U.S. Department of\n Homeland Security; RODNEY SCOTT, in his\n official capacity as Commissioner of U.S.\n Customs and Border Protection; and\n ROSARIO VASQUEZ, in his official\n capacity as Chief of U.S. Border Patrol,\n\n\n Defendants.\n\n\n\n\n [PROPOSED] ORDER GRANTING THE MOTION OF THE TOHONO O\u2019ODHAM\n NATION FOR AN INJUNCTION PENDING APPEAL\n\n This matter is before the Court on the Motion of Plaintiff Tohono O\u2019odham Nation for an\n\nInjunction Pending Appeal. Having carefully considered the pleadings and other documents filed\n\nin connection with the Nation\u2019s motion, the Court hereby GRANTS the motion. Specifically,\n\nSecretary of the United States Department of Homeland Security Markwayne Mullin, United\n\nStates Customs and Border Protection Commissioner Rodney Scott, and United States Border\n\nPatrol Chief Rosario Vasquez\u2014and their employees, subordinates, and agents\u2014are enjoined\n\nfrom taking, or authorizing or directing any other person to take, any steps in furtherance of\n\nconstruction of the planned border wall or associated infrastructure on the Nation\u2019s Reservation.\n\nSO ORDERED.\n\n\n 1\n\f Case 1:26-cv-02127-RJL Document 50-6 Filed 08/27/26 Page 2 of 2\n\n\n\n\nWashington, D.C.\n\nDated: ________________ ____________________________________\n U.S. District Judge\n\n\n\n\n 2\n\f","ocr_status":1,"date_upload":"2026-08-27T22:04:13.031731-07:00","document_number":"50","attachment_number":6,"pacer_doc_id":"045012309127","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Text of Proposed Order","acms_document_guid":""}],"date_created":"2026-08-27T19:57:55.271938-07:00","date_modified":"2026-08-28T06:10:36.762302-07:00","date_filed":"2026-08-27","time_filed":"22:25:41","entry_number":50,"recap_sequence_number":"2026-08-27.002","pacer_sequence_number":179,"description":"MOTION for Preliminary Injunction Pending Appeal by TOHONO O'ODHAM NATION. (Attachments: # 1 Memorandum in Support, # 2 Appendix A & B, # 3 Declaration of James Cook, # 4 Declaration of Beverly Matthews, # 5 Declaration of Riyaz A. Kanji, # 6 Text of Proposed Order)(Kanji, Riyaz) (Entered: 08/27/2026)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/475974418/","id":475974418,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/73493770/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/491523257/","id":491523257,"tags":[],"absolute_url":"/docket/73493770/49/tohono-oodham-nation-v-mullin/","date_created":"2026-08-27T05:46:33.028766-07:00","date_modified":"2026-09-08T13:44:46.535141-07:00","sha1":"1ed17acb6a6d9511219a6245bb575e14197d596b","page_count":31,"file_size":7630197,"filepath_local":"recap/gov.uscourts.dcd.293593/gov.uscourts.dcd.293593.49.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.dcd.293593/gov.uscourts.dcd.293593.49.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 1:26-cv-02127-RJL Document 49 Filed 08/27/26 Page 1 of 31\n\n\n APPEAL,TYPE\u2212D\n U.S. District Court\n District of Columbia (Washington, DC)\n CIVIL DOCKET FOR CASE #: 1:26\u2212cv\u221202127\u2212RJL\n\nTOHONO O'ODHAM NATION v. MULLIN et al Date Filed: 06/16/2026\nAssigned to: Judge Richard J. Leon Jury Demand: None\nDemand: $0 Nature of Suit: 240 Torts to Land\nCause: 28:1331 Fed. Question Jurisdiction: U.S. Government Defendant\nPlaintiff\nTOHONO O'ODHAM NATION represented by David A Giampetroni\na federally recognized Indian tribe KANJI & KATZEN, PLLC\n PO Box 3971\n Ann Arbor, MI 48106\n 734\u2212769\u22125400\n Email: dgiampetroni@kanjikatzen.com\n PRO HAC VICE\n ATTORNEY TO BE NOTICED\n\n Howard Shanker\n TOHONO O'ODHAM NATION\n Office of Attorney General\n PO Box 830\n Sells, AZ 85634\n 520\u2212383\u22123410\n Email: howard.shanker@tonation\u2212nsn.gov\n PRO HAC VICE\n ATTORNEY TO BE NOTICED\n\n Logan Takao Cooper\n TOHONO O'ODHAM NATION\n Office of Attorney General\n PO Box 830\n Sells, AZ 85634\n 520\u2212954\u22129146\n Email: logan.cooper@tonation\u2212nsn.gov\n PRO HAC VICE\n ATTORNEY TO BE NOTICED\n\n Philip H Tinker\n KANJI & KATZEN, PLLC\n 12 N. Cheyenne Ave., Ste. 220\n Tulsa, OK 74103\n 206\u2212344\u22128100\n Email: ptinker@kanjikatzen.com\n ATTORNEY TO BE NOTICED\n\n Riyaz A. Kanji\n KANJI & KATZEN, PLLC\n\n\n 1\n\f Case 1:26-cv-02127-RJL Document 49 Filed 08/27/26 Page 2 of 31\n\n\n P.O. Box 3971\n Ann Arbor, MI 48106\n 734\u2212769\u22125400\n Email: rkanji@kanjikatzen.com\n ATTORNEY TO BE NOTICED\n\n\nV.\nDefendant\nMARKWAYNE MULLIN represented by Stacy R. Stoller\nin his official capacity as Secretary of DOJ\u2212ENRD\nU.S. Department of Homeland Security 950 Pennsylvania Ave NW\n Washington, DC 20530\n 202\u2212598\u22123555\n Email: stacy.stoller@usdoj.gov\n LEAD ATTORNEY\n ATTORNEY TO BE NOTICED\n\n Adam R.F. Gustafson\n DOJ\u2212Enrd\n Environment and Natural Resources\n Division\n 950 Pennsylvania Ave NW\n Washington, DC 20530\n 202\u2212718\u22120703\n Email: adam.gustafson@usdoj.gov\n ATTORNEY TO BE NOTICED\n\n Andrew Block\n DOJ\u2212OASG\n Office of the Associate Attorney General\n 950 Pennsylvania Ave., NW\n Washington, DC 20530\n 202\u2212372\u22127565\n Email: andrew.block@usdoj.gov\n ATTORNEY TO BE NOTICED\n\n Bradley Thomas Craigmyle\n DOJ\u2212Enrd\n 950 Pennsylvania Avenue NW\n Washington, DC 20530\n 202\u2212532\u22123150\n Email: bradley.craigmyle@usdoj.gov\n ATTORNEY TO BE NOTICED\n\n Marissa Ann Piropato\n U.S. DEPARTMENT OF JUSTICE\n ENRD\n P.O. Box 7611\n Washington, DC 20044\u22127611\n (202) 305\u22120470\n\n\n 2\n\f Case 1:26-cv-02127-RJL Document 49 Filed 08/27/26 Page 3 of 31\n\n\n Email: marissa.piropato@usdoj.gov\n ATTORNEY TO BE NOTICED\n\nDefendant\nRODNEY SCOTT represented by Stacy R. Stoller\nin his official capacity as Commissioner (See above for address)\nof U.S. Customs and Border Protection LEAD ATTORNEY\n ATTORNEY TO BE NOTICED\n\n Adam R.F. Gustafson\n (See above for address)\n ATTORNEY TO BE NOTICED\n\n Andrew Block\n (See above for address)\n ATTORNEY TO BE NOTICED\n\n Bradley Thomas Craigmyle\n (See above for address)\n ATTORNEY TO BE NOTICED\n\n Marissa Ann Piropato\n (See above for address)\n ATTORNEY TO BE NOTICED\n\nDefendant\nROSARIO VASQUEZ represented by Stacy R. Stoller\nin his official capacity as Chief of U.S. (See above for address)\nBorder Patrol LEAD ATTORNEY\n ATTORNEY TO BE NOTICED\n\n Adam R.F. Gustafson\n (See above for address)\n ATTORNEY TO BE NOTICED\n\n Andrew Block\n (See above for address)\n ATTORNEY TO BE NOTICED\n\n Bradley Thomas Craigmyle\n (See above for address)\n ATTORNEY TO BE NOTICED\n\n Marissa Ann Piropato\n (See above for address)\n ATTORNEY TO BE NOTICED\n\nAmicus\nWARREN PETERSEN represented by S. Lee Whitesell\n FUSION LAW\n 3515 Urban Woods Trail\n\n 3\n\f Case 1:26-cv-02127-RJL Document 49 Filed 08/27/26 Page 4 of 31\n\n\n Houston, TX 77008\n 856\u2212364\u22126090\n Email: slw@fusion.law\n LEAD ATTORNEY\n ATTORNEY TO BE NOTICED\n\nAmicus\nSTEVE MONTENEGRO represented by S. Lee Whitesell\n (See above for address)\n LEAD ATTORNEY\n ATTORNEY TO BE NOTICED\n\n\nDate Filed # Docket Text\n06/16/2026 1 COMPLAINT against MARKWAYNE MULLIN, RODNEY SCOTT, ROSARIO\n VASQUEZ ( Filing fee $ 405 receipt number ADCDC\u221212491722) filed by TOHONO\n O'ODHAM NATION. (Attachments: # 1 Civil Cover Sheet, # 2 Summons issued for\n Markwayne Mullin, # 3 Summons issued for Rodney Scott, # 4 Summons issued for\n Rosario Vasquez, # 5 Summons issued for U.S. Attorney, # 6 Summons issued for U.S.\n Attorney General)(Kanji, Riyaz) (Entered: 06/16/2026)\n06/16/2026 2 NOTICE of Appearance by Riyaz A. Kanji on behalf of TOHONO O'ODHAM\n NATION (Kanji, Riyaz) (Entered: 06/16/2026)\n06/17/2026 3 MOTION for Preliminary Injunction by TOHONO O'ODHAM NATION.\n (Attachments: # 1 Memorandum in Support, # 2 Declaration of Chairman Verlon M.\n Jose, # 3 Declaration of Christopher T. Senseney, PhD. P.E., # 4 Declaration of\n Kendall Jose, # 5 Declaration of James Cook, # 6 Declaration of Samuel Fayuant, # 7\n Declaration of Eldellda Francisco, # 8 Declaration of Laiken Jordahl, # 9 Declaration\n of Gary Nabhan, Ph.D, # 10 Declaration of Rebecca Ortega, # 11 Declaration of\n Thomasa Rivas, # 12 Declaration of Myles Traphagen, # 13 Declaration of John Robert\n Welch, Ph.D, # 14 Declaration of Mary Lucy Zazueta, # 15 Declaration of Riyaz A.\n Kanji, # 16 Text of Proposed Order)(Kanji, Riyaz) (Entered: 06/17/2026)\n06/17/2026 Case Assigned to Judge Richard J. Leon. (zmtm) (Entered: 06/17/2026)\n06/17/2026 4 SUMMONS (5) Issued Electronically as to All Defendants, U.S. Attorney and U.S.\n Attorney General (Attachments: # 1 Notice and Consent)(zmtm) (Entered: 06/17/2026)\n06/17/2026 5 MOTION for Leave to Appear Pro Hac Vice :Attorney Name\u2212 David A. Giampetroni,\n Filing fee $ 100, receipt number ADCDC\u221212493101. Fee Status: Fee Paid. by\n TOHONO O'ODHAM NATION. (Attachments: # 1 Declaration of David A.\n Giampetroni in Support, # 2 Exhibit Certificate of Good Standing, # 3 Text of\n Proposed Order)(Kanji, Riyaz) (Entered: 06/17/2026)\n06/17/2026 6 MOTION for Leave to Appear Pro Hac Vice :Attorney Name\u2212 Philip H. Tinker, Filing\n fee $ 100, receipt number ADCDC\u221212493127. Fee Status: Fee Paid. by TOHONO\n O'ODHAM NATION. (Attachments: # 1 Declaration of Philip H. Tinker, # 2 Exhibit\n Certificate of Good Standing, # 3 Text of Proposed Order)(Kanji, Riyaz) (Entered:\n 06/17/2026)\n06/17/2026 7 MOTION for Leave to Appear Pro Hac Vice :Attorney Name\u2212 Christopher C. Miller,\n Filing fee $ 100, receipt number ADCDC\u221212493137. Fee Status: Fee Paid. by\n\n\n 4\n\f Case 1:26-cv-02127-RJL Document 49 Filed 08/27/26 Page 5 of 31\n\n\n\n TOHONO O'ODHAM NATION. (Attachments: # 1 Declaration of Christopher C.\n Miller in Support, # 2 Exhibit Certificate of Good Standing, # 3 Text of Proposed\n Order)(Kanji, Riyaz) (Entered: 06/17/2026)\n06/17/2026 8 MOTION for Leave to Appear Pro Hac Vice :Attorney Name\u2212 Howard M. Shanker,\n Filing fee $ 100, receipt number ADCDC\u221212493175. Fee Status: Fee Paid. by\n TOHONO O'ODHAM NATION. (Attachments: # 1 Declaration of Howard M.\n Shanker in Support, # 2 Exhibit Certificate of Good Standing, # 3 Text of Proposed\n Order)(Kanji, Riyaz) (Entered: 06/17/2026)\n06/18/2026 9 MOTION for Leave to Appear Pro Hac Vice :Attorney Name\u2212 Logan Takao Cooper,\n Filing fee $ 100, receipt number ADCDC\u221212495858. Fee Status: Fee Paid. by\n TOHONO O'ODHAM NATION. (Attachments: # 1 Declaration of Logan Takao\n Cooper in Support, # 2 Exhibit Certificate of Good Standing, # 3 Text of Proposed\n Order)(Kanji, Riyaz) (Entered: 06/18/2026)\n06/18/2026 MINUTE ORDER. Regarding plaintiff's 3 Motion for a Preliminary Injunction, the\n parties are hereby ORDERED to confer and file a joint status report proposing a\n briefing schedule for plaintiff's motion by June 23, 2026. Per Local Civil Rule 65.1(d),\n the Court finds that a later hearing date will not prejudice the parties. Accordingly, the\n Court will hold a hearing on the motion on July 22, 2026 at 4:00 PM in Courtroom 18\n (In Person) before Judge Richard J. Leon. SO ORDERED. Signed by Judge Richard J.\n Leon on 6/18/2026. (lcrjl2) (Entered: 06/18/2026)\n06/22/2026 10 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the\n United States Attorney. Date of Service Upon United States Attorney on 6/18/2026.\n Answer due for ALL FEDERAL DEFENDANTS by 8/17/2026. (Kanji, Riyaz)\n (Entered: 06/22/2026)\n06/23/2026 MINUTE ORDER. Upon consideration of the 5 6 7 8 9 Motions for Admission of\n Attorney Pro Hac Vice, it is hereby ORDERED that the motions are GRANTED. It is\n further ORDERED that David A. Giampetroni, Philip H. Tinker, Christopher C. Miller,\n Howard M. Shanker, and Logan Takao Cooper be, and hereby are, admitted pro hac\n vice in this case. Counsel should register for e\u2212filing via PACER and file a notice\n of appearance pursuant to LCvR 83.6(a). Click for instructions. SO ORDERED.\n Signed by Judge Richard J. Leon on 6/23/2026. (lcrjl2) (Entered: 06/23/2026)\n06/23/2026 11 Joint STATUS REPORT by TOHONO O'ODHAM NATION. (Kanji, Riyaz) (Entered:\n 06/23/2026)\n06/24/2026 MINUTE ORDER. Regarding the parties' 11 Joint Status Report, it is hereby\n ORDERED that the following briefing schedule shall apply: Defendants' response to\n plaintiff's 3 Motion for Preliminary Injunction due July 7, 2026. Plaintiff's reply due\n July 14, 2026. SO ORDERED. Signed by Judge Richard J. Leon on 6/24/2026. (lcrjl2)\n (Entered: 06/24/2026)\n06/25/2026 12 NOTICE of Appearance by David A Giampetroni on behalf of TOHONO O'ODHAM\n NATION (Giampetroni, David) (Entered: 06/25/2026)\n06/25/2026 13 NOTICE of Appearance by Philip H Tinker on behalf of TOHONO O'ODHAM\n NATION (Tinker, Philip) (Entered: 06/25/2026)\n06/25/2026 14 NOTICE of Appearance by Howard Shanker on behalf of TOHONO O'ODHAM\n NATION (Shanker, Howard) (Entered: 06/25/2026)\n06/25/2026 15\n\n 5\n\f Case 1:26-cv-02127-RJL Document 49 Filed 08/27/26 Page 6 of 31\n\n\n\n NOTICE of Appearance by Logan Takao Cooper on behalf of TOHONO O'ODHAM\n NATION (Takao Cooper, Logan) (Entered: 06/25/2026)\n07/07/2026 16 Unopposed MOTION for Leave to File Amicus Brief by Arizona Senate President\n Warren Petersen and Arizona Speaker of the House of Representatives Steve\n Montenegro in Support of Defendants and in Opposition to Plaintiffs Motion for\n Preliminary Injunction by WARREN PETERSEN, STEVE MONTENEGRO.\n (Attachments: # 1 Proposed Brief, # 2 Text of Proposed Order Proposed\n Order)(Whitesell, S.) (Entered: 07/07/2026)\n07/07/2026 17 NOTICE of Appearance by Stacy R. Stoller on behalf of All Defendants (Stoller,\n Stacy) (Entered: 07/07/2026)\n07/07/2026 18 Memorandum in opposition to re 3 MOTION for Preliminary Injunction by Federal\n Defendants filed by MARKWAYNE MULLIN. (Attachments: # 1 Affidavit Hollinder\n Declaration, # 2 Affidavit Enriquez Declaration, # 3 Exhibit Attachment A \u2212 Roosevelt\n Proclamation, # 4 Exhibit Attachment B \u2212 1937 Act, # 5 Exhibit Attachment C \u2212 1927\n Act, # 6 Exhibit Attachment D \u2212 Res. No. 04\u2212095, # 7 Exhibit M\u2212Opinion 27656, # 8\n Text of Proposed Order)(Stoller, Stacy) (Entered: 07/07/2026)\n07/08/2026 19 NOTICE of Filing Corrected Memorandum (Dkt. # 18) in Opposition to Motion for\n Preliminary Injunction (Dkt. # 3) by MARKWAYNE MULLIN re 18 Memorandum in\n Opposition, (Attachments: # 1 Exhibit Corrected Memorandum in Opposition to\n Plaintiff's Motion for Preliminary Injunction)(Stoller, Stacy) (Entered: 07/08/2026)\n07/08/2026 MINUTE ORDER. Upon consideration of the 16 Motion for Leave to File Amicus\n Brief, it is hereby ORDERED that the Motion is GRANTED. The proposed amicus\n brief attached as Exhibit 1 to the 13 Motion is deemed filed with the Court upon entry\n of this order. SO ORDERED. Signed by Judge Richard J. Leon on 7/8/2026. (lcrjl2)\n (Entered: 07/08/2026)\n07/08/2026 20 AMICUS BRIEF by STEVE MONTENEGRO, WARREN PETERSEN. (mg)\n (Entered: 07/08/2026)\n07/09/2026 21 Unopposed MOTION for Protective Order by MARKWAYNE MULLIN.\n (Attachments: # 1 Text of Proposed Order)(Stoller, Stacy) (Entered: 07/09/2026)\n07/09/2026 22 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by\n MARKWAYNE MULLIN (This document is SEALED and only available to\n authorized persons.) (Attachments: # 1 Affidavit, # 2 Text of Proposed Order)(Stoller,\n Stacy) (Entered: 07/09/2026)\n07/14/2026 23 PROTECTIVE ORDER. See attached for details. Signed by Judge Richard J. Leon on\n 7/13/2026. (lcrjl2) Modified on 7/14/2026 (zcll). (Entered: 07/14/2026)\n07/14/2026 MINUTE ORDER granting 22 Sealed Motion for Leave to File Document Under Seal.\n Signed by Judge Richard J. Leon on 7/14/2026. (lcrjl2) (Entered: 07/14/2026)\n07/14/2026 24 SEALED DOCUMENT (AFFIDAVIT) filed by MARKWAYNE MULLIN. (This\n document is SEALED and only available to authorized persons.)(mg) (Entered:\n 07/14/2026)\n07/14/2026 25 REPLY to opposition to motion re 3 Motion for Preliminary Injunction,, filed by\n TOHONO O'ODHAM NATION. (Kanji, Riyaz) (Entered: 07/15/2026)\n07/14/2026 30\n\n\n 6\n\f Case 1:26-cv-02127-RJL Document 49 Filed 08/27/26 Page 7 of 31\n\n\n\n ENTERED IN ERROR.....SEALED DOCUMENT (DECLARATION) filed by\n MARKWAYNE MULLIN. (This document is SEALED and only available to\n authorized persons.)(mg) Modified on 7/20/2026, filed at docket entry 24 (mg).\n (Entered: 07/20/2026)\n07/15/2026 26 DECLARATION of Paul Michael Ehlerman by TOHONO O'ODHAM NATION re 25\n Reply to opposition to Motion. (Kanji, Riyaz) (Entered: 07/15/2026)\n07/15/2026 27 DECLARATION of Riyaz A. Kanji by TOHONO O'ODHAM NATION re 25 Reply to\n opposition to Motion. (Kanji, Riyaz) (Entered: 07/15/2026)\n07/15/2026 28 Unopposed MOTION to File Declarations in Reply in Support of Motion for\n Preliminary Injunction by TOHONO O'ODHAM NATION. (Attachments: # 1 Text of\n Proposed Order)(Kanji, Riyaz) (Entered: 07/15/2026)\n07/15/2026 29 NOTICE of filing of Appendix A by TOHONO O'ODHAM NATION re 25 Reply to\n opposition to Motion (Attachments: # 1 Appendix B)(Kanji, Riyaz) (Entered:\n 07/15/2026)\n07/20/2026 31 NOTICE of Appearance by Adam R.F. Gustafson on behalf of All Defendants\n (Gustafson, Adam) (Entered: 07/20/2026)\n07/20/2026 32 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by\n TOHONO O'ODHAM NATION (This document is SEALED and only available to\n authorized persons.) (Attachments: # 1 Exhibit Sealed Motion to Strike Declaration of\n Benjamin S. Hollinder, # 2 Declaration of Paul Michael Ehlerman, # 3 Text of\n Proposed Order re Sealed Motion to Strike Declaration of Benjamin S. Hollinder, # 4\n Text of Proposed Order re Unopposed Motion for Leave to File Motion to Strike the\n Declaration of Benjamin S. Hollinder)(Kanji, Riyaz) (Entered: 07/20/2026)\n07/21/2026 MINUTE ORDER. Upon consideration of plaintiff's 28 Motion to File Declarations in\n Reply in Support of Motion for Preliminary Injunction, it is hereby ORDERED that the\n motion is GRANTED. SO ORDERED. Signed by Judge Richard J. Leon on 7/21/2026.\n (lcrjl2) (Entered: 07/21/2026)\n07/21/2026 33 NOTICE of Appearance by Bradley Thomas Craigmyle on behalf of All Defendants\n (Craigmyle, Bradley) (Entered: 07/21/2026)\n07/22/2026 34 NOTICE of Appearance by Andrew Block on behalf of All Defendants (Block,\n Andrew) (Entered: 07/22/2026)\n07/22/2026 Minute Entry for Motion Hearing held before Judge Richard J. Leon on July 22, 2026.\n Oral arguments submitted on Plaintiff's 3 Motion for Preliminary Injunction. The Court\n takes the matter under advisement. Upon receipt of the transcript of this hearing, each\n side may have one week to submit supplemental pleadings in light of today's hearing.\n These submissions shall not exceed ten pages in length. (Court Reporter: Rebecca\n Monroe.) (hmj) (Entered: 07/22/2026)\n07/23/2026 MINUTE ORDER. Per the Court's July 22, 2026 Order, and given the parties' receipt\n of the preliminary injunction hearing transcript on July 23, 2026, it is hereby\n ORDERED that the parties shall submit supplemental briefs by 5:00 PM on July 30,\n 2026. SO ORDERED. Signed by Judge Richard J. Leon on 7/23/2026. (lcrjl1)\n (Entered: 07/23/2026)\n07/28/2026 MINUTE ORDER granting 32 Sealed Motion for Leave to File Document Under Seal.\n Signed by Judge Richard J. Leon on 7/28/2026. (lcrjl2) (Entered: 07/28/2026)\n\n\n 7\n\f Case 1:26-cv-02127-RJL Document 49 Filed 08/27/26 Page 8 of 31\n\n\n\n07/28/2026 35 SEALED MOTION to Strike filed by TOHONO O'ODHAM NATION. (This\n document is SEALED and only available to authorized persons.) (Attachments: # 1\n Declaration, # 2 Text of Proposed Order)(mg) (Entered: 07/29/2026)\n07/30/2026 36 NOTICE of Appearance by Marissa Ann Piropato on behalf of All Defendants\n (Piropato, Marissa) (Entered: 07/30/2026)\n07/30/2026 37 SUPPLEMENTAL MEMORANDUM to re Order,, Scheduling Order, filed by\n TOHONO O'ODHAM NATION. (Attachments: # 1 Appendix)(Kanji, Riyaz) (Entered:\n 07/30/2026)\n07/30/2026 38 MEMORANDUM re Order,, Scheduling Order, by MARKWAYNE MULLIN,\n RODNEY SCOTT, ROSARIO VASQUEZ. (Attachments: # 1 Affidavit)(Piropato,\n Marissa) (Entered: 07/30/2026)\n07/30/2026 39 ERRATA Declaration by MARKWAYNE MULLIN, RODNEY SCOTT, ROSARIO\n VASQUEZ re Order,, Scheduling Order,. (Attachments: # 1 Exhibit Supplemental\n Memorandum, # 2 Exhibit Corrected Declaration)(Piropato, Marissa) (Entered:\n 07/30/2026)\n08/03/2026 40 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by\n MARKWAYNE MULLIN, RODNEY SCOTT, ROSARIO VASQUEZ (This\n document is SEALED and only available to authorized persons.) (Attachments: # 1\n Text of Proposed Order, # 2 Exhibit DEFENDANTS SEALED MEMORANDUM OF\n POINTS AND AUTHORITIES, # 3 Exhibit Declaration, # 4 Text of Proposed\n Order)(Piropato, Marissa) (Entered: 08/03/2026)\n08/06/2026 MINUTE ORDER granting 40 Sealed Motion for Leave to File Document Under Seal.\n Signed by Judge Richard J. Leon on 8/6/2026. (lcrjl2) (Entered: 08/06/2026)\n08/06/2026 41 NOTICE of United States' Planned Activity on Tohono O'odham Reservation by\n TOHONO O'ODHAM NATION (Attachments: # 1 Exhibit Email)(Kanji, Riyaz)\n (Entered: 08/06/2026)\n08/06/2026 42 SEALED OPPOSITION filed by MARKWAYNE MULLIN, RODNEY SCOTT,\n ROSARIO VASQUEZ re 35 Sealed Motion (Attachments: # 1 Declaration)(mg)\n (Entered: 08/07/2026)\n08/10/2026 43 TRANSCRIPT OF PROCEEDINGS before Judge Richard J. Leon held on 07/22/2026;\n Page Numbers: 1 through 47. Date of Issuance:8/10/2026. Court Reporter/Transcriber\n Rebecca Monroe, email: rebecca_monroe@dcd.uscourts.gov, Transcripts may be\n ordered by submitting the Transcript Order Form\n\n For the first 90 days after this filing date, the transcript may be viewed at the\n courthouse at a public terminal or purchased from the court reporter referenced above.\n After 90 days, the transcript may be accessed via PACER. Other transcript formats,\n (multi\u2212page, condensed, CD or ASCII) may be purchased from the court reporter.\n\n NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty\u2212one\n days to file with the court and the court reporter any request to redact personal\n identifiers from this transcript. If no such requests are filed, the transcript will be made\n available to the public via PACER without redaction after 90 days. The policy, which\n includes the five personal identifiers specifically covered, is located on our website at\n www.dcd.uscourts.gov.\n\n\n\n 8\n\f Case 1:26-cv-02127-RJL Document 49 Filed 08/27/26 Page 9 of 31\n\n\n\n Redaction Request due 8/31/2026. Redacted Transcript Deadline set for 9/10/2026.\n Release of Transcript Restriction set for 11/8/2026.(Monroe, Rebecca) (Entered:\n 08/10/2026)\n08/12/2026 44 RESPONSE re 41 Notice by MARKWAYNE MULLIN, RODNEY SCOTT,\n ROSARIO VASQUEZ. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Piropato, Marissa)\n Modified event on 8/27/2026 (mg). (Entered: 08/12/2026)\n08/14/2026 45 MEMORANDUM OPINION. Signed by Judge Richard J. Leon on 8/13/2026. (lcrjl2)\n (Entered: 08/14/2026)\n08/14/2026 46 ORDER denying 3 Motion for Preliminary Injunction. See attached for details. Signed\n by Judge Richard J. Leon on 8/13/2026. (lcrjl2) (Entered: 08/14/2026)\n08/14/2026 47 MOTION for Extension of Time to File Answer re 1 Complaint, by MARKWAYNE\n MULLIN. (Attachments: # 1 Text of Proposed Order)(Stoller, Stacy) (Entered:\n 08/14/2026)\n08/17/2026 MINUTE ORDER. Upon consideration of defendants' 47 Unopposed Motion for\n Extension of Time, it is hereby ORDERED that the motion is GRANTED. Defendants\n shall answer or otherwise respond to the 1 Complaint by September 14, 2026. SO\n ORDERED. Signed by Judge Richard J. Leon on 8/17/2026. (lcrjl2) (Entered:\n 08/17/2026)\n08/26/2026 48 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 46 Order on Motion for\n Preliminary Injunction by TOHONO O'ODHAM NATION. Filing fee $ 605, receipt\n number ADCDC\u221212635578. Fee Status: Fee Paid. (Kanji, Riyaz) (Entered:\n 08/26/2026)\n\n\n\n\n 9\n\f Case 1:26-cv-02127-RJL Document 49 Filed 08/27/26 Page 10 of 31\n\n\n\n\n THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLUMBIA\n\n\n\n TOHONO O\u2019ODHAM NATION,\n a federally recognized Indian tribe,\n\n Plaintiff, Case No. 26-cv-2127-RJL\n\n v.\n\n MARKWAYNE MULLIN, in his official\n capacity as Secretary of U.S. Department of\n Homeland Security; RODNEY SCOTT, in his\n official capacity as Commissioner of U.S.\n Customs and Border Protection; and\n ROSARIO VASQUEZ, in his official\n capacity as Chief of U.S. Border Patrol,\n\n Defendants.\n\n\n\n\n NOTICE OF APPEAL\n\n Pursuant to Federal Rule of Appellate Procedure 3, notice is hereby given that Plaintiff\n\nTohono O\u2019odham Nation appeals to the United States Court of Appeals for the District of\n\nColumbia Circuit from the Order of this Court entered in the above-captioned matter on August\n\n14, 2026 (Dkt. 46), in which this Court denied the Motion for Preliminary Injunction of the\n\nTohono O\u2019odham Nation (Dkt. 3).\n\n\n\n\n 10\n\f Case 1:26-cv-02127-RJL Document 49 Filed 08/27/26 Page 11 of 31\n\n\n\n\nDated: August 26, 2026 Respectfully submitted,\n\n /s/ Riyaz A. Kanji\nHoward M. Shanker, D.C. Bar 426359* Riyaz A. Kanji, D.C. Bar 455165\nAttorney General David A. Giampetroni*\nLogan Takao Cooper* KANJI & KATZEN, P.L.L.C.\nAssistant Attorney General P.O. Box 3971\nTOHONO O\u2019ODHAM NATION Ann Arbor, MI 48106\nP.O. Box 830 (734) 769-5400\nSells, AZ 85634 rkanji@kanjikatzen.com\nHoward.Shanker@tonation-nsn.gov dgiampetroni@kanjikatzen.com\nLogan.Cooper@tonation-nsn.gov\n Philip H. Tinker*\n KANJI & KATZEN, P.L.L.C.\n 12 N. Cheyenne Ave., Ste. 220\n Tulsa, OK 74103\n (206) 344-8100\n ptinker@kanjikatzen.com\n\n Counsel for Plaintiff Tohono O\u2019odham Nation\n\n\n\n*Pro Hac Vice Admission\n\n\n\n\n 2\n\n\n 11\n\f Case 1:26-cv-02127-RJL Document 49 Filed 08/27/26 Page 12 of 31\n\n\n\n\n CERTIFICATE OF SERVICE\n I certify that on August 26, 2026, this document was served on all parties or their counsel\n\nof record through the CM/ECF system if they are registered users or, if they are not, by placing a\n\ntrue and correct copy in the United States mail, postage prepaid, to their address of record.\n\n /s/ Riyaz A. Kanji\n Riyaz A. Kanji\n\n\n\n\n 12\n\f Case 1:26-cv-02127-RJL Document 49 Filed 08/27/26 Page 13 of 31\n\n\n\n\n UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLUMBIA\n\n\n )\n TOHONO O'ODHAM NATION, )\n )\n Plaintiff, )\n ) Civil Case No. 26-2127 (RJL)\n V. )\n )\n MARK.WAYNE MULLIN, et al., )\n )\n Defendants. )\n_________ _ )\n\n\n MEMORANDUM OPINION\n August f 3 ~2026 [Dkt. #3]\n\n For decades, plaintiff the Tohono O'odham Nation and the United States\n\nGovernment have worked together to secure a sixty-two mile stretch of the international\n\nborder with Mexico. In 2004, the Tohono O'odham Nation agreed to construction of a\n\nvehicle barrier over most of the international border that stops vehicles-but not people-\n\nfrom crossing. The Government now plans to replace the vehicle barrier with a\n\ncongressionally-authorized and funded border wall next to the Tohono O'odham\n\nReservation. Plaintiff seeks a preliminary injunction to stop construction on grounds that\n\nthe border wall will change the Reservation boundaries and will result in trespasses over\n\nthe Reservation. Because plaintiff is unlikely to succeed on the merits of these claims, and\n\nbecause the remaining preliminary injunction factors favor the Government, I will DENY\n\nplaintiff's Motion for a Preliminary Injunction.\n\n\n 1\n\n\n 13\n\f Case 1:26-cv-02127-RJL Document 49 Filed 08/27/26 Page 14 of 31\n\n\n\n\n BACKGROUND\n\nI. The United States-Mexico International Border\n\n The international border between the United States and Mexico stretches for nearly\n\n2,000 miles and spans four states-California, Arizona, New Mexico, and Texas. 1\n\nSecuring and maintaining control of such a lengthy and geographically varied border is a\n\nchallenge, especially given the high volume of illegal entries and drug smuggling. For\n\nexample, at the Arizona border from 2021 to 2026, the Government apprehended 1.3\n\nmillion illegal aliens and seized thousands of pounds of illicit drugs, including over 3,475\n\npounds offentanyl, 17,200 pounds of marijuana, and 11,750 pounds ofmethamphetamine.\n\nDeel. of Paul Enriquez (\"Enriquez Deel.\") [Dkt. #18-2] ,r 10.\n\n Congress has directed the Secretary of Homeland Security (the \"Secretary\") to\n\n\"achieve and maintain operational control over\" the United States-Mexico border,\n\nincluding through \"physical infrastructure enhancements.\" Secure Fence Act of 2006, Pub.\n\nL. No. 109-367, \u00a7 2(a), 120 Stat. 2638, 2638 (codified at 8 U.S.C. \u00a7 1701 note). Congress\n\nhas repeatedly passed legislation authorizing the Secretary to construct physical barriers at\n\nthe border. See, e.g., Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104-\n\n208, \u00a7 102, 110 Stat. 3009, 3009-554 (1996) (codified at 8 U.S.C. \u00a7 1103 note and\n\nhereinafter referred to as the Illegal Immigration Reform and Immigrant Responsibility\n\nAct, or \"IIRIRA\"). Most recently, Congress appropriated $46 billion to U.S. Customs and\n\nBorder Protection for, among other things, the\"[ c]onstruction, installation, or improvement\n\n\n1\n Smart Wall Map, U.S. Customs & Border Protection, https://perma.cc/9LWK-6HEP (last accessed Aug.\n10, 2026).\n 2\n\n\n 14\n\f Case 1:26-cv-02127-RJL Document 49 Filed 08/27/26 Page 15 of 31\n\n\n\n\n of new or replacement primary, waterborne, and secondary barriers.\" One Big Beautiful\n\n Bill Act, Pub. L. No. 119-21, tit. IX, sec. 90001, 139 Stat. 72,358 (2025).\n\n To fast-track border construction, Congress authorized the Secretary to \"waive all\n\n legal requirements ... necessary to ensure expeditious construction of the barriers and\n\n roads under this section.\" IIRIRA \u00a7 102(c)(l). Congress further limited federal courts'\n\n jurisdiction over \"any action undertaken, or any decision made, by the Secretary\" pursuant\n\n to IIRIRA's waiver authority. IIRIRA \u00a7 102(c)(2)(A). The statute permits only\n\n constitutional challenges to such \"action[s]\" or \"decision[s],\" and any legal challenges\n\n must be brought within sixty days. IIRIRA \u00a7 102(c)(2)(B), (C). On April 3, 2008, the\n\n Secretary issued a broad waiver of numerous environmental and procedural laws, including\n\n the Administrative Procedure Act, for projects \"in the States of California, Arizona, New\n\n Mexico, and Texas.\" 73 Fed. Reg. 18293; see also 91 Fed. Reg. 45823, 45823 (July 21,\n\n 2026) (waiving numerous laws specifically for the Tucson 5 Project).\n\nII. The Tohono O'odham Nation\n\n Plaintiff, the Tohono O'odham Nation (\"plaintiff' or \"the Nation\"), is a \"federally\n\nrecognized Indian tribe with a government-to-government relationship with the United\n\n States.\" Compl. [Dkt. #1] ,r 8. The Nation occupies a 2.8 million-acre reservation in\n\nArizona. Id. ,r 13. For approximately sixty-two miles, the Nation's reservation runs\n\nalongside the international border with Mexico. Id.\n\n Plaintiff's \"broader aboriginal territory\" \"extends throughout much of present-day\n\nArizona and into Mexico.\" Id. ,r 24. There are currently \"[s]eventeen O'odharn\n\ncommunities with approximately 2,000 members\" in Mexico, and members of the Nation\n\n 3\n\n\n 15\n\f Case 1:26-cv-02127-RJL Document 49 Filed 08/27/26 Page 16 of 31\n\n\n\n\n \"continue to cross the border for sacred pilgrimages and ceremonies at important religious\n\n and cultural sites.\" Id. ,r 27.\n\n The Nation has a \"long-standing cooperative relationship\" with the U.S.\n\n Government when it comes to border security and enforcement. Id. ,r 34. In addition to\n\n collaborating with federal law enforcement agencies, the Nation has led a High Intensity\n\n Drug Trafficking Task Force (the NATIVE Task Force) targeting drug trafficking within\n\n the Nation's borders. Deel. of James Cook (\"Cook Deel.\") [Dkt. #3-5] ,r 11. The Nation\n\n has authorized construction of \"two Customs and Border Protection Forward Operating\n\n Bases on the Reservation,\" ten \"Integrated Fixed Towers\" for border surveillance, and\n\n \"vehicle barriers and a patrol road along the vast majority of the border, with the exception\n\n of those areas where vehicle access is impossible due to mountainous terrain.\" Compl.\n\n ,r,r 36, 38. Today, the four-foot vehicle barrier along most of the international border\n prevents vehicles from crossing the border but offers little resistance to pedestrians who\n\n wish to go over or under these barriers. See Cook Deel. ,r 15.\n\nIII. The Tucson 5 Project\n\n In the spring of 2026, the U.S. Department of Homeland Security informed plaintiff\n\n of its \"plans to construct a border wall and associated infrastructure along the international\n\n border within the Nation's Reservation.\" Compl. ,r 49. Plaintiff has not consented to any\n\n construction. Id. ,r 51. On June 26, 2026, U.S. Customs and Border Protection awarded a\n\n contract for construction of a \"primary physical barrier\" and \"barrier system attributes\" in\n\n what the Government is calling the \"Tucson 5 Project.\" Enriquez Deel. ,r 11. Design work\n\n\n\n 4\n\n\n 16\n\f Case 1:26-cv-02127-RJL Document 49 Filed 08/27/26 Page 17 of 31\n\n\n\n\n is underway. See id. ,r 14. U.S. Customs and Border Protection \"does not anticipate\n\n construction activities starting prior to October 12, 2026.\" Id.\n\nIV. Procedural History\n\n On June 16, 2026, the Nation sued defendants Markwayne Mullin, Rodney Scott,\n\n and Rosario Vasquez (\"defendants\") all in their official capacities as Secretary of the U.S.\n\n Department of Homeland Security, Commissioner of U.S. Customs and Border Protection,\n\n and Chief ofU.S. Border Patrol, respectively. See Compl. The next day, the Nation moved\n\n for a preliminary injunction halting construction of the border wall adjacent to the Nation's\n\n reservation. See Pl.'s Mot. for Prelim. Inj. (\"Mot.\") [Dkt. #3]. The Government opposes.\n\n See Defs.' Mem. of Points & Authorities in Opp'n to Pl. 's Mot. for Prelim. Inj. [Corrected]\n\n (\"Opp'n\") [Dkt. #19-1]. Plaintiff filed its reply on July 14, 2026. See Pl.'s Reply Mem.\n\n (\"Reply\") [0kt. #25].\n\n On July 22, 2026, the Court held a hearing on plaintiff's motion for a preliminary\n\n injunction. See Hr'g Tr. [Dkt. #43]. At the close of the hearing, the Court provided the\n\n parties with the opportunity to \"submit a supplemental pleading based on the arguments\n\n that took place here today.\" Hr'r Tr. at 37:6-7. The parties submitted their supplemental\n\n briefs on July 30, 2026. See Suppl. Mem. of the Tohono O'odham Nation in Supp. of its\n\n Mot. for Prelim. Inj. (\"Pl.'s Suppl. Br.\") [Dkt. #37]; Defs.' Suppl. Br. in Opp'n to Pl.'s Mot.\n\n for Prehm. Inj. (\"Defs.' Suppl. Br.\") [Dkt. #39-1]. The motion is now ripe for decision.\n\n LEGAL STANDARD\n\n A preliminary injunction is \"an extraordinary remedy that may only be awarded\n\n upon a clear showing that the plaintiff is entitled to such relief.\" Winter v. NRDC, Inc., 555\n\n 5\n\n\n 17\n\f Case 1:26-cv-02127-RJL Document 49 Filed 08/27/26 Page 18 of 31\n\n\n\n\nU.S. 7, 22 (2008). To obtain a preliminary injunction, the movant \"must establish that he\n\nis likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence\n\nof preliminary relief, that the balance of equities tips in his favor, and that an injunction is\n\nin the public interest.\" Id. at 20.\n\n ANALYSIS\n\nI. Likelihood of Success on the Merits\n\n A. Ultra Vires Claim\n\n Plaintiff argues that defendants' planned construction of the border wall is ultra vires\n\nbecause the wall will diminish the boundaries of the Reservation without express\n\ncongressional authorization and will violate 25 U.S.C. \u00a7 398d. 2 While ultra vires review\n\nis available, I conclude that plaintiff is unlikely to succeed on the merits because the federal\n\nRoosevelt Reservation exists along the international border and, in any event, plaintiff has\n\nnot established that construction of a border wall will indeed alter Reservation boundaries.\n\n 1. Availability of Ultra Vires Review\n\n Before getting to the merits of a nonstatutory ultra vires claim, the plaintiff must\n\nshow that \"(i) there is no express statutory preclusion of all judicial review\" and \"(ii) there\n\nis no alternative procedure for review of the statutory claim.\" Fed. Express Corp. v. US.\n\nDep 't of Com. (\"FedEx\"), 39 F.4th 756, 763 (D.C. Cir. 2022) (internal quotation marks\n\n\n\n\n2\n 25 U.S.C. \u00a7 398d provides that \"[c]hanges in the boundaries ofreservations created by Executive order,\nproclamation, or otherwise for the use and occupation of Indians shall not be made except by Act of\nCongress.\"\n 6\n\n\n 18\n\f Case 1:26-cv-02127-RJL Document 49 Filed 08/27/26 Page 19 of 31\n\n\n\n\nomitted). Defendants argue that IIRIRA Section 102(c)(2) expressly precludes review of\n\nplaintiff's ultra vires claim. On this point, I disagree.\n\n \"Judicial review for ultra vires agency action 'rests on the longstanding principle\n\nthat if an agency action is unauthorized by the statute under which [the agency] assumes to\n\nact, the agency has violate[ d] the law and the courts generally have jurisdiction to grant\n\nrelief.\"' FedEx, 39 F.4th at 763 (quoting National Ass 'n ofPostal Supervisors v. USPS, 26\n\nF.4th 960, 970 (D.C. Cir. 2022)). The \"presum[ption] that agency action is judicially\n\nreviewable,\" however, \"may be overcome by specific language that is a reliable indicator\n\nof congressional intent.\" DCH Reg'! Med. Ctr. v. Azar, 925 F.3d 503,505 (D.C. Cir. 2019)\n\n(quoting Knapp Med. Ctr. v. Hargan, 875 F.3d 1125, 1128 (D.C. Cir. 2017)). The relevant\n\nquestion, then, is whether Congress has \"clearly and directly\" prohibited judicial review of\n\nplaintiff's ultra vires claim. Bd. of Governors of Fed. Rsrv. Sys. v. MCorp Fin., Inc., 502\n\nU.S. 32, 44 (1991).\n\n Defendants argue that IIRIRA's waiver provision-Section 102(c)(1 )-and the\n\naccompanying jurisdiction-stripping provision-Section 102(c)(2)-preclude plaintiff's\n\nultra vires claim. Section 102(c)(1) provides:\n\n Notwithstanding any other provision of law, the Secretary of Homeland\n Security shall have the authority to waive all legal requirements such\n Secretary ... determines necessary to ensure expeditious construction of the\n barriers and roads under this section.\n\n8 U.S.C. \u00a7 1103 note.\n\n Section 102(c)(2)(A) provides:\n\n The district courts of the United States shall have exclusive jurisdiction to\n hear all causes or claims arising from any action undertaken, or any decision\n\n 7\n\n\n 19\n\f Case 1:26-cv-02127-RJL Document 49 Filed 08/27/26 Page 20 of 31\n\n\n\n\n made, by the Secretary ofHomeland Security pursuant to paragraph (1). A\n cause of action or claim may only be brought alleging a violation of the\n Constitution of the United States. The court shall not have jurisdiction to\n hear any claim not specified in this subparagraph.\n\nId. (emphasis added). The connection between plaintiff's ultra vires claim and the\n\njurisdiction-stripping provision is not obvious. Plaintiff argues that defendants' planned\n\nconstruction of the border wall is ultra vires because the wall will diminish reservation\n\nboundaries without congressional authorization. Unlike many recent border wall cases,\n\nplaintiff does not challenge the legality of a secretarial waiver pursuant to IIRIRA Section\n\n102(c)(l). See, e.g., Ctr.for Biological Diversity v. McAleenan, 404 F. Supp. 3d 218,235\n\n(D.D.C. 2019). Defendants nevertheless argue that Section 102(c)(2)'s jurisdiction-\n\nstripping provision applies here because ultra vires review is available only when \"there is\n\nno alternative procedure for review of the statutory claim,\" FedEx, 39 F.4th at 763, and\n\nplaintiff relies on the Secretary's waiver of the Administrative Procedure Act to satisfy this\n\nrequirement. In other words, because plaintiff's ultra vires claim is \"premised on an\n\nIIRIRA waiver,\" Section 102(c)(2) precludes plaintiff's claim. Defs.' Suppl. Br. at 4.\n\n Our Circuit's reasoning in North American Butterfly Association v. Wolf strongly\n\nsuggests-if not requires me to find-that plaintiff's ultra vires claim about diminishment\n\nof reservation b~:mndaries does not \"arise from\" the Secretary's 2008 waiver of the\n\nAdministrative Procedure Act. In North American Butterfly, our Circuit Court explained\n\nthat Section 102(c)(2) \"(b]y its terms ... does not extend to construction or related activities\n\nthat do not necessarily flow from exercise of the waiver authority as such, but that IIRIRA\n\nsection 102(a)-(b) authorizes independently.\" 977 F.3d 1244, 1260 (D.C. Cir. 2020).\n\n\n 8\n\n\n 20\n\f Case 1:26-cv-02127-RJL Document 49 Filed 08/27/26 Page 21 of 31\n\n\n\n\n\"Because ' arise' out of means ' to originate from a specified source, the phrase ' arising out\n\nof' generally requires ' a causal connection,' not merely a 'logical' one.\" Id. (internal\n\ncitations omitted).\n\n The 2008 waiver enables plaintiff to bring an ultra vires claim because there are no\n\nother avenues for judicial review. But it can hardly be said that the Secretary's waiver\n\ncaused plaintiff's ultra vires claim. Cf Ford Motor Co. v. Montana Eighth Jud. Dist. Ct.,\n\n592 U.S. 351,362 (2021) (explaining, in the context of personal jurisdiction, that \"arise\n\nout of' requires a \"causal showing\"). Interpreting Section 102(c)(2) 's \"arising from\"\n\nlanguage to \"require[] a causal connection,\" North American Butterfly, 977 F.3d at 1260\n\n(internal quotation marks omitted), also gives effect to IIRIRA's specific reference to\n\nSection 102(c)(l). Congress could have stripped jurisdiction over any actions or decisions\n\npursuant to the Secretary's authority under Sections 102(a) and 102(b), but it instead\n\nfocused the jurisdiction-stripping provision on the Secretary's waiver authority under\n\nSection 102(c). Consistent with this reasoning, at least one court has exercised jurisdiction\n\nover ultra vires claims \"challeng[ing] the scope of the Secretary's authority to build roads\n\nand walls under section 102(a) and 102(b), not the scope of waiver authority under section\n\n102(c).\" In re Border Infrastructure Env't Litig., 915 F.3d 1213, 1221 (9th Cir. 2019).\n\nSection 102(c)(2) therefore does not supply \"clear and convincing evidence that Congress\n\nintended to deny the District Court jurisdiction\" over plaintiff's ultra vires claim. MCorp\n\n\n\n\n 9\n\n\n 21\n\f Case 1:26-cv-02127-RJL Document 49 Filed 08/27/26 Page 22 of 31\n\n\n\n\nFin., Inc., 502 U.S. at 44. 3\n\n 2. Merits\n\n That hurdle aside, to succeed on the merits of its ultra vires claim, plaintiff must\n\nestablish that defendants have \"plainly act[ed] in excess of [their] delegated powers and\n\ncontrary to a specific prohibition in the statute that is clear and mandatory.\" FedEx, 39\n\nF.4th at 763 (internal quotation marks omitted). As I have said before, \"ultra vires review\n\nis a high bar\"-it is the ultimate \"Hail Mary pass.\" Nat'! Tr. for Historic Pres. v. Nat'/\n\nPark Serv., 827 F. Supp. 3d 93, 104 (D.D.C. 2026) (quoting Nuclear Regul. Comm 'n v.\n\nTexas, 605 U.S. 665, 681 (2025)). Plaintiff is unlikely to clear this high bar.\n\n To succeed on an ultra vires claim, the plaintiff must show that \"the agency has\n\n'stepped so plainly beyond the bounds of [its statutory authority] , or acted so clearly in\n\ndefiance of it, as to warrant the immediate intervention of an equity court.\"' FedEx, 39\n\nF.4th at 764 (quoting Griffith v. FLRA, 842 F.2d 487, 493 (D.C. Cir. 1988)). \"Only error\n\nthat is patently a misconstruction of the Act, that disregards a specific and unambiguous\n\nstatutory directive, or that violates some specific command of a statute will support relief.\"\n\nId. (cleaned up). The legal error must be \"so extreme that one may view it as jurisdictional\n\nor nearly so.\" Changji Esque/ Textile Co. v. Raimondo, 40 F.4th 716, 722 (D.C. Cir. 2022)\n\n(quoting Griffith, 842 F.2d at 493).\n\n\n\n\n3\n Defendants do not separately argue that there is a \"statutory review scheme provid[ing] aggrieved persons\nwith a meaningful and adequate opportunity for judicial review.\" Nuclear Regul. Comm 'n v. Texas, 605\nU.S. 665, 681 (2025) (internal quotation marks omitted).\n\n\n\n\n 22\n\f Case 1:26-cv-02127-RJL Document 49 Filed 08/27/26 Page 23 of 31\n\n\n\n\n Plaintiff argues that the proposed border wall will unlawfully diminish the Nation's\n\nreservation boundaries without the authority of Congress and in violation of 25 U.S.C.\n\n\u00a7 398d. Plaintiff's ultra vires claim suffers, unfortunately, from multiple deficiencies.\n\n First, the Roosevelt Reservation likely exists along the international border. In\n\n1907-ten years before the creation of the Nation's modern-day Reservation by executive\n\norder-President Theodore Roosevelt \"set apart as a public reservation[] all public lands\n\nwithin sixty feet of the international boundary between the United States and the Republic\n\nof Mexico.\" Proclamation of May 27, 1907, 35 Stat. 2136, 2136 [Dkt. #18-3]. Plaintiff\n\nargues that it had aboriginal title to the land before the creation of the Roosevelt\n\nReservation, so the Nation's lands were not \"public lands,\" and therefore the Roosevelt\n\nReservation has never existed on the reservation. Mot. at 22-31. But historical evidence\n\ncasts doubt on plaintiff's theory.\n\n In a 1934 dispute before the Solicitor of the Interior, the Nation argued that they\n\nheld rights to land \"in fee by virtue of a title vested in them before the area in question\n\ncame under the sovereignty of the United States,\" so \"the land never became part of the\n\npublic domain,\" or \"public lands.\" Solicitor's Memorandum Opinion M-27656 (Mar. 1,\n\n1934) at 360, supplemented by M-27656 (Supp.) (May 7, 1934) [Dkt. #18-7]. The Solicitor\n\nof the Interior issued an opinion concluding that \"the interest of the [Nation] in the land\n\nthey claim [is] subordinate to a superior proprietorship in the United States.\" Id. at 363.\n\nThe Nation did not \"have a perfected title in fee which precludes the United States from\n\nexercising any proprietorship over the land.\" Id. While the opinion recognized that the\n\nNation retained the \"Indian right of surface occupancy,\" id. at 438, this right was not\n\n 11\n\n\n 23\n\f Case 1:26-cv-02127-RJL Document 49 Filed 08/27/26 Page 24 of 31\n\n\n\n\nequivalent to an \"independent title which can . . . embarrass any future action that to\n\nCongress may seem appropriate in the premises.\" Id. at 438, 370-71. The opinion\n\ntherefore calls into question plaintiff's claim that the Reservation land was not \"public\n\nland\" before the President established the Reservation in 1917.\n\n Subsequent practice reflects multiple instances in which the Government and the\n\nNation acknowledged the existence of the Roosevelt Reservation. In 193 7, Congress\n\npassed a law modifying the boundaries of the Nation's Reservation but expressly noting\n\nthat \"[t]his extension shall not affect ... the reservation of a strip of land sixty feet wide\n\nalong the United States-Mexico boundary made by proclamation of the President dated\n\nMay 27, 1907.\" Act of July 28, 1937, Pub. L. No. 75-217, 50 Stat. 536 [Dkt. #18-4]. And\n\nas recently as 2004, the Nation-in approving construction of a vehicle barrier along the\n\ninternational border-acknowledged that U.S. Border Patrol \"plans to construct the border\n\nvehicle barrier and road entirely within the sixty-foot strip of land reserved by the\n\nPresidential Proclamation of President Theodore Roosevelt dated May 27, 1907.\"\n\nResolution No. 04-095 (Mar. 8, 2004) [Dkt. #18-6].\n\n Plaintiff points to other historical evidence to argue that the Roosevelt Reservation\n\nhas never existed on the Nation's Reservation because the Reservation was never \"public\n\nland,\" but plaintiff's evidence is flawed. The 1968 Indian Claims Commission decision\n\nthat recognized the Nation's aboriginal title also stated specifically that the \"Gadsden\n\nPurchase of 1854 brought the subject lands under United States sovereignty and they\n\nbecame public land by the Act of July 22, 1854.\" 19 Ind. Cl. Comm. 394, 432 [Dkt. #3-\n\n15] (emphasis added). The decision goes on to say that the \"[ 1854] Act provided for the\n\n 12\n\n\n 24\n\f Case 1:26-cv-02127-RJL Document 49 Filed 08/27/26 Page 25 of 31\n\n\n\n\napplication to the new public lands of the pre-emption laws of the Territory of New Mexico\n\nother than on lands covered by claims based on Spanish or Mexican law.\" Id. (emphasis\n\nadded). Plaintiff suggests that this phrase included claims based on aboriginal title. See\n\nReply at 7-8. But the case plaintiff relies on does not say this outright. See United States\n\nv. Santa Fe Pacific Railroad Co., 314 U.S. 339,351 (1941) (\"[T]heseActs were concerned\n\nnot with the problem of ascertaining the boundaries oflndian country but with the problem\n\nof quieting titles originating under Spanish or Mexican grants.\") Such conflicting historical\n\nevidence is not the stuff of successful ultra vires claims. 4\n\n Second, even if the Roosevelt Reservation does not exist on the Nation's\n\nReservation, plaintiff has not shown how construction of a wall on the existing international\n\nborder will change the boundaries of the Nation's reservation. The core of plaintiff's ultra\n\nvires theory is that only Congress can \"adjust the Nation's boundaries.\" Pl.'s Suppl. Br. at\n\n2. As a legal matter, it is well-established that Congress has exclusive authority to diminish\n\nreservation boundaries, and that Congress must make its intent to do so clear and\n\nunambiguous. See McGirt v. Oklahoma, 591 U.S. 894, 903-04 (2020). But I am not aware\n\nof any case holding that construction of a border wall adjacent to a Reservation-with the\n\npossibility of activities that may interfere with the Nation's use and occupancy rights-\n\nnecessarily diminishes the Reservation's boundaries.\n\n\n\n\n4\n Plaintiffs' reliance on references to the Nation's grazing of cattle up to the border is not persuasive because,\nas defendants argue, \"[t]here is no conflict between the federal government's reservation of the land for\nnational security purposes and transient uses like grazing.\" Defs.' Suppl. Br. at 8.\n 13\n\n\n 25\n\f Case 1:26-cv-02127-RJL Document 49 Filed 08/27/26 Page 26 of 31\n\n\n\n\n To the contrary, the establishment of non-Indian towns, or the sale of property to\n\nnon-Indians, does not change the reservation status of the lands. See, e.g., Seymour v.\n\nSuperintendent of Wash. State Penitentiary, 368 U.S. 351, 358-59 (1962) (rejecting\n\nargument that \"lands owned by towns\" were \"exclud(ed] from a reservation\"). As\n\ndefendants persuasively argue, \"constructing a border barrier is not the type of action that\n\ncould change the status or boundaries of a reservation.\" Defs.' Suppl. Br. at 5.\n\n Plaintiff's novel ultra vires theory therefore fails to meet the \"high bar,\" Nat 'l Tr.\n\nfor Historic Pres., 827 F. Supp. 3d at 104, for extraordinary equitable relief.\n\n B. Trespass Claim\n\n As a fallback, plaintiff argues that defendants' planned border wall may be enjoined\n\nfor the independent reason that it constitutes a trespass on the Reservation. Plaintiff's\n\ntrespass claim is unlikely to succeed on the merits because the federal government's\n\nsovereign immunity bars its claim.\n\n As our Circuit has explained, \"claims against the federal government and its actors\n\nare jurisdictionally barred by sovereign immunity.\" Schilling v. US. House of\n\nRepresentatives, 102 F.4th 503, 506 (D.C. Cir. 2024). Congress may waive sovereign\n\nimmunity through \"clear statutory text\" in statutes such as the Administrative Procedure\n\nAct or the Federal Tort Claims Act. Id. Courts interpret such statutes \"strictly,\" and any\n\nexceptions to the Government's sovereign immunity \"are not to be lightly implied.\" Block\n\nv. N Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 287 (1983). Plaintiff does\n\nnot argue that any statute waives sovereign immunity here. It couldn't!\n\n\n\n 14\n\n\n 26\n\f Case 1:26-cv-02127-RJL Document 49 Filed 08/27/26 Page 27 of 31\n\n\n\n\n Instead, plaintiff relies on the Larson-Dugan exception to sovereign immunity for\n\nboth its ultra vires and trespass claims. Under the Larson-Dugan exception, \"if the federal\n\nofficer, against whom injunctive relief is sought, allegedly acted in excess of his legal\n\nauthority, sovereign immunity does not bar a suit.\" Chamber of Com. of U.S. v. Reich, 74\n\nF.3d 1322, 1329 (D.C. Cir. 1996) (citing Larson v. Domestic & Foreign Commerce Corp.,\n\n337 U.S. 682, 690-91 (I 949)). In other words, sovereign immunity does not bar successful\n\nultra vires claims. As explained supra Section I.A., plaintiff's ultra vires claim fails on the\n\nmerits so the Larson-Dugan exception cannot operate to waive defendants' sovereign\n\nimmunity for plaintiff's trespass claim.\n\n Plaintiff argues that the Larson-Dugan exception also extends to suits seeking \"an\n\ninjunction against a state officer who abridges a common law duty without statutory\n\nauthorization.\" Mot. at 19-20 (quoting Leopold v. Manger, 102 F.4th 491,495 (D.C. Cir.\n\n2024)). But the cases cited by plaintiff all involve mandamus petitions seeking access to\n\ndocuments under the common law right of public \u00b7access. See Leopold, l 02 F.4th at 493;\n\nSchilling, 102 F.4th at 505; Leopold v. Sullivan, 823 F. Supp. 3d 59, 64 (D.D.C. 2026). As\n\nfar as I can tell, no court has extended the Larson-Dugan exception to common law tort\n\nclaims, let alone trespass claims, seeking injunctive relief against the Government.\n\n However, even if plaintiff established a waiver of the Government's sovereign\n\nimmunity, the availability of a federal common law trespass claim by an Indian tribe against\n\nthe federal government is at best uncertain. Plaintiff relies on dicta to suggest the\n\navailability of such a cause of action. See Edwardsen v. Morton, 369 F. Supp. 1359, 1371\n\n(D.D.C. 1973) (explaining that \"officers are themselves liable in trespass if their actions\n\n 15\n\n\n 27\n\f Case 1:26-cv-02127-RJL Document 49 Filed 08/27/26 Page 28 of 31\n\n\n\n\ncause[] third parties to enter the land\" but concluding that \"resort to that principle of tort\n\nlaw actually is unn[ e]cessary in view of the fiduciary duty of the federal government and\n\nits agents to protect the interests of Native Americans\"). But plaintiff has not identified\n\nany case (outside the context of a Federal Tort Claims Act claim for damages) involving a\n\ncommon law trespass suit against the Government.\n\n Indeed, significant uncertainties remain about the actual scope of construction\n\nactivities and the extent to which they may interfere with the Nation's land outside the\n\nRoosevelt Reservation. See Enriquez Deel. ,r 13 (\"[T]he contractor has been instructed to\n\nconfine the project footprint ... to the 60-foot federal Roosevelt Reservation.\"). At this\n\nearly stage, plaintiff has not established a '\"clear showing' of entitlement\" to the\n\nextraordinary remedy of preliminary injunctive relief. Haynes v. Navy Fed. Credit Union,\n\n841 F. Supp. 2d 221 , 223 (D.D.C. 2012) (quoting Winter, 555 U.S. at 21).\n\n II. Remaining Winter Factors\n\n Because plaintiff is unlikely to succeed on the merits, I could deny relief on that\n\nbasis alone. Cf Clevinger v. Advoc. Holdings, Inc., 134 F.4th 1230, 1236 (D.C. Cir. 2025).\n\nBut for the sake of completeness, I will briefly address the remaining Winter factors, all of\n\nwhich favor defendants.\n\n To prevail, plaintiff must show that it is \"likely to suffer irreparable harm in the\n\nabsence of preliminary relief.\" Winter, 555 U.S. at 20. The threat of harm must be \"both\n\ncertain and great, actual and not theoretical, beyond remediation, and of such imminence\n\nthat there is clear and present need for equitable relief.\" Mexichem Specialty Resins, Inc.\n\nv. EPA, 787 FJd 544, 555 (D.C. Cir. 2015) (internal quotation marks omitted). Plaintiff\n\n 16\n\n\n 28\n\f Case 1:26-cv-02127-RJL Document 49 Filed 08/27/26 Page 29 of 31\n\n\n\n\nmust also show that \"the balance of equities tips in [its] favor,\" and that \"an injunction is\n\nin the public interest.\" Winter, 555 U.S. at 20. When \"the Government is the opposing\n\nparty,\" these final two factors \"merge.\" Nken v. Holder, 556 U.S. 418, 435 (2009).\n\n Plaintiff argues that the planned border wall will inflict irreparable harm to its\n\nsovereignty and proprietary control over its lands, as well as cause environmental and First\n\nAmendment harms. See Mot. at 41--43. Plaintiff's alleged harms based on its claim to the\n\nland leading up to the international border are not likely to materialize because, as\n\nexplained supra Section I.A.2., the Roosevelt Reservation likely exists along the Nation's\n\nborder, and defendants have not yet articulated plans to construct outside the Roosevelt\n\nReservation. Regarding the environmental and First Amendment harms, plaintiff has\n\npointed to numerous harms to the landscape, including \"four sets of mountain peaks\" that\n\nare \"sacred peaks to the Tohono people.\" Hr'g Tr. at 12:11-12, 15. Defendants note,\n\nhowever, that plans have not yet been finalized for the border wall, and that many-if not\n\nall-of plaintiff's alleged environmental and First Amendment injuries could be mitigated\n\nthrough consultation with the Nation and accommodations, such as crossing gates to enable\n\nmembers of the Nation to access the international border. See Enriquez Deel. ~~ 16-1 7,\n\n24-29, 33. Given the possibility of mitigating plaintiff's injuries, I find that plaintiff has\n\nnot yet established irreparable harm that is \"certain\" and \"great.\" Mexichem Specialty\n\nResins, Inc., 787 F.3d at 555 (internal quotation marks omitted).\n\n And in any event, I find that the Government's interests in securing the border,\n\nenforcing immigration laws, and ensuring public safety outweigh any surviving irreparable\n\nharms at this juncture. \"The Supreme Court has recognized that the public interest in\n\n 17\n\n\n 29\n\f Case 1:26-cv-02127-RJL Document 49 Filed 08/27/26 Page 30 of 31\n\n\n\n\nenforcement of the immigration laws is significant.\" Blackie s House of Beef, Inc. v.\n\nCastillo, 659 F.2d 1211, 1221 (D.C. Cir. 1981). Congress, through enacting IIRIRA and\n\nappropriating funds for border wall construction, has identified physical border walls as a\n\nkey component of border security. Given the national security and foreign policy\n\nconsiderations related to the border wall, deference to the Government is warranted,\n\nparticularly for plaintiff's ultra vires claim. See Changji Esque! Textile Co. v. Raimondo,\n\n40 F.4th 716, 723 (D.C. Cir. 2022).\n\n CONCLUSION\n\n The international border is an area of great significance to both the United States\n\nand to the Nation. While I have concluded that a preliminary injunction is unwarranted, I\n\nfully expect the Government in the months ahead to follow through on its guarantees of\n\nconsultation and cooperation with the Nation to address the Nation's concerns regarding\n\nborder wall construction!\n\n For the foregoing reasons, it is hereby ORDERED that plaintiff's Motion for a\n\nPreliminary Injunction [Dkt. #3] is DENIED. An accompanying order will issue\n\ncontemporaneously with this opinion.\n\n\n\n\n Rl~J.LEON\n United States District Judge\n\n\n\n\n 18\n\n\n 30\n\f Case 1:26-cv-02127-RJL Document 49 Filed 08/27/26 Page 31 of 31\n\n\n\n\n UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLUMBIA\n\n\n )\nTOHONO O'ODHAM NATION, )\n )\n Plaintiff, )\n ) Civil Case No. 26-2127 (RJL)\n V. )\n )\nMARKWAYNE MULLIN, et al., )\n )\n Defendants. )\n___ ___ ___ _ )\n\n\n ORDER\n August l3 k.' 2026 [Dkt. #3]\n\n For the reasons set forth in the accompanying Memorandum Opinion, it is hereby\n\n ORDERED that plaintiff's Motion for Preliminary Injunction [Dkt. #3] is\n\nDENIED.\n\n SO ORDERED.\n\n\n\n\n United States District Judge\n\n\n\n\n 1\n\n\n 31\n\f","ocr_status":2,"date_upload":"2026-08-27T08:16:14.880010-07:00","document_number":"49","attachment_number":null,"pacer_doc_id":"045012306522","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Transmission of Notice of Appeal and Docket Sheet to USCA","acms_document_guid":""}],"date_created":"2026-08-27T05:46:32.999885-07:00","date_modified":"2026-08-27T16:53:03.563694-07:00","date_filed":"2026-08-27","time_filed":"07:48:13","entry_number":49,"recap_sequence_number":"2026-08-27.001","pacer_sequence_number":176,"description":"Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid re 48 Notice of Appeal to DC Circuit Court. (mg) (Entered: 08/27/2026)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/475966664/","id":475966664,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/73493770/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/491515219/","id":491515219,"tags":[],"absolute_url":"","date_created":"2026-08-27T00:05:25.096238-07:00","date_modified":"2026-08-27T00:05:25.096248-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"","attachment_number":null,"pacer_doc_id":"","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2026-08-27T00:05:25.082718-07:00","date_modified":"2026-08-27T00:05:25.082728-07:00","date_filed":"2026-08-17","time_filed":null,"entry_number":null,"recap_sequence_number":"2026-08-17.001","pacer_sequence_number":null,"description":"MINUTE ORDER. Upon consideration of defendants' 47 Unopposed Motion for Extension of Time, it is hereby ORDERED that the motion is GRANTED. Defendants shall answer or otherwise respond to the 1 Complaint by September 14, 2026. SO ORDERED. Signed by Judge Richard J. Leon on 8/17/2026. (lcrjl2)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/475938181/","id":475938181,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/73493770/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/491485915/","id":491485915,"tags":[],"absolute_url":"/docket/73493770/48/tohono-oodham-nation-v-mullin/","date_created":"2026-08-26T16:39:54.440805-07:00","date_modified":"2026-09-08T13:33:41.128674-07:00","sha1":"7ffedd24888d9c4238bea0c2e76725fd5573246c","page_count":3,"file_size":179184,"filepath_local":"recap/gov.uscourts.dcd.293593/gov.uscourts.dcd.293593.48.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.dcd.293593/gov.uscourts.dcd.293593.48.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 1:26-cv-02127-RJL Document 48 Filed 08/26/26 Page 1 of 3\n\n\n\n\n THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLUMBIA\n\n\n\n TOHONO O\u2019ODHAM NATION,\n a federally recognized Indian tribe,\n\n Plaintiff, Case No. 26-cv-2127-RJL\n\n v.\n\n MARKWAYNE MULLIN, in his official\n capacity as Secretary of U.S. Department of\n Homeland Security; RODNEY SCOTT, in his\n official capacity as Commissioner of U.S.\n Customs and Border Protection; and\n ROSARIO VASQUEZ, in his official\n capacity as Chief of U.S. Border Patrol,\n\n Defendants.\n\n\n\n\n NOTICE OF APPEAL\n\n Pursuant to Federal Rule of Appellate Procedure 3, notice is hereby given that Plaintiff\n\nTohono O\u2019odham Nation appeals to the United States Court of Appeals for the District of\n\nColumbia Circuit from the Order of this Court entered in the above-captioned matter on August\n\n14, 2026 (Dkt. 46), in which this Court denied the Motion for Preliminary Injunction of the\n\nTohono O\u2019odham Nation (Dkt. 3).\n\f Case 1:26-cv-02127-RJL Document 48 Filed 08/26/26 Page 2 of 3\n\n\n\n\nDated: August 26, 2026 Respectfully submitted,\n\n /s/ Riyaz A. Kanji\nHoward M. Shanker, D.C. Bar 426359* Riyaz A. Kanji, D.C. Bar 455165\nAttorney General David A. Giampetroni*\nLogan Takao Cooper* KANJI & KATZEN, P.L.L.C.\nAssistant Attorney General P.O. Box 3971\nTOHONO O\u2019ODHAM NATION Ann Arbor, MI 48106\nP.O. Box 830 (734) 769-5400\nSells, AZ 85634 rkanji@kanjikatzen.com\nHoward.Shanker@tonation-nsn.gov dgiampetroni@kanjikatzen.com\nLogan.Cooper@tonation-nsn.gov\n Philip H. Tinker*\n KANJI & KATZEN, P.L.L.C.\n 12 N. Cheyenne Ave., Ste. 220\n Tulsa, OK 74103\n (206) 344-8100\n ptinker@kanjikatzen.com\n\n Counsel for Plaintiff Tohono O\u2019odham Nation\n\n\n\n*Pro Hac Vice Admission\n\n\n\n\n 2\n\f Case 1:26-cv-02127-RJL Document 48 Filed 08/26/26 Page 3 of 3\n\n\n\n\n CERTIFICATE OF SERVICE\n I certify that on August 26, 2026, this document was served on all parties or their counsel\n\nof record through the CM/ECF system if they are registered users or, if they are not, by placing a\n\ntrue and correct copy in the United States mail, postage prepaid, to their address of record.\n\n /s/ Riyaz A. Kanji\n Riyaz A. Kanji\n\f","ocr_status":2,"date_upload":"2026-08-27T00:16:47.715036-07:00","document_number":"48","attachment_number":null,"pacer_doc_id":"045012306297","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Notice of Appeal to DC Circuit","acms_document_guid":""}],"date_created":"2026-08-26T16:39:54.410628-07:00","date_modified":"2026-08-27T00:05:25.110920-07:00","date_filed":"2026-08-26","time_filed":"19:14:05","entry_number":48,"recap_sequence_number":"2026-08-26.001","pacer_sequence_number":173,"description":"NOTICE OF APPEAL TO DC CIRCUIT COURT as to 46 Order on Motion for Preliminary Injunction by TOHONO O'ODHAM NATION. Filing fee $ 605, receipt number ADCDC-12635578. Fee Status: Fee Paid. (Kanji, Riyaz) (Entered: 08/26/2026)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/474798160/","id":474798160,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/73493770/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/490309533/","id":490309533,"tags":[],"absolute_url":"","date_created":"2026-08-17T15:32:56.601091-07:00","date_modified":"2026-08-17T15:32:56.601100-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"","attachment_number":null,"pacer_doc_id":"","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Order on Motion for Extension of Time to Answer AND Set/Reset Deadlines","acms_document_guid":""}],"date_created":"2026-08-17T15:32:56.592713-07:00","date_modified":"2026-08-17T15:32:56.592722-07:00","date_filed":"2026-08-17","time_filed":"17:45:52","entry_number":null,"recap_sequence_number":"2026-08-17.001","pacer_sequence_number":null,"description":"","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/474511510/","id":474511510,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/73493770/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/490013849/","id":490013849,"tags":[],"absolute_url":"/docket/73493770/47/tohono-oodham-nation-v-mullin/","date_created":"2026-08-14T11:53:00.923075-07:00","date_modified":"2026-08-14T11:53:00.932106-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"47","attachment_number":null,"pacer_doc_id":"045012283251","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Extension of Time to File Answer","acms_document_guid":""}],"date_created":"2026-08-14T11:53:00.902387-07:00","date_modified":"2026-08-14T13:36:46.479154-07:00","date_filed":"2026-08-14","time_filed":"14:16:15","entry_number":47,"recap_sequence_number":"2026-08-14.003","pacer_sequence_number":167,"description":"MOTION for Extension of Time to File Answer re 1 Complaint, by MARKWAYNE MULLIN. (Attachments: # 1 Text of Proposed Order)(Stoller, Stacy) (Entered: 08/14/2026)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/474481323/","id":474481323,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/73493770/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/489983154/","id":489983154,"tags":[],"absolute_url":"/docket/73493770/46/tohono-oodham-nation-v-mullin/","date_created":"2026-08-14T09:13:04.105318-07:00","date_modified":"2026-08-27T00:06:25.918613-07:00","sha1":"b2ebc4a9c44696b887ec2fb6c797d82f3d5cf9fb","page_count":1,"file_size":175064,"filepath_local":"recap/gov.uscourts.dcd.293593/gov.uscourts.dcd.293593.46.0_1.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.dcd.293593/gov.uscourts.dcd.293593.46.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 1:26-cv-02127-RJL Document 46 Filed 08/14/26 Page 1 of 1\n\n\n\n\n UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLUMBIA\n\n\n )\nTOHONO O'ODHAM NATION, )\n )\n Plaintiff, )\n ) Civil Case No. 26-2127 (RJL)\n V. )\n )\nMARKWAYNE MULLIN, et al., )\n )\n Defendants. )\n___ ___ ___ _ )\n\n\n ORDER\n August l3 k.' 2026 [Dkt. #3]\n\n For the reasons set forth in the accompanying Memorandum Opinion, it is hereby\n\n ORDERED that plaintiff's Motion for Preliminary Injunction [Dkt. #3] is\n\nDENIED.\n\n SO ORDERED.\n\n\n\n\n United States District Judge\n\n\n\n\n 1\n\f","ocr_status":2,"date_upload":"2026-08-27T00:06:25.900580-07:00","document_number":"46","attachment_number":null,"pacer_doc_id":"045012282777","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Order on Motion for Preliminary Injunction","acms_document_guid":""}],"date_created":"2026-08-14T09:13:04.039429-07:00","date_modified":"2026-08-14T13:36:46.463783-07:00","date_filed":"2026-08-14","time_filed":"11:58:41","entry_number":46,"recap_sequence_number":"2026-08-14.002","pacer_sequence_number":165,"description":"ORDER denying 3 Motion for Preliminary Injunction. See attached for details. Signed by Judge Richard J. Leon on 8/13/2026. (lcrjl2) (Entered: 08/14/2026)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/474481322/","id":474481322,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/73493770/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/489983153/","id":489983153,"tags":[],"absolute_url":"/docket/73493770/45/tohono-oodham-nation-v-mullin/","date_created":"2026-08-14T09:13:03.998373-07:00","date_modified":"2026-08-27T17:28:26.178933-07:00","sha1":"a98c6cbbce10eb89ac79dbe0af97539b60a0e884","page_count":18,"file_size":7033249,"filepath_local":"recap/gov.uscourts.dcd.293593/gov.uscourts.dcd.293593.45.0_2.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.dcd.293593/gov.uscourts.dcd.293593.45.0.pdf","ia_upload_failure_count":null,"thumbnail":"recap-thumbnails/gov.uscourts.dcd.293593/489983153.thumb.1068.png","thumbnail_status":1,"plain_text":" Case 1:26-cv-02127-RJL Document 45 Filed 08/14/26 Page 1 of 18\n\n\n\n\n UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLUMBIA\n\n\n )\n TOHONO O'ODHAM NATION, )\n )\n Plaintiff, )\n ) Civil Case No. 26-2127 (RJL)\n V. )\n )\n MARK.WAYNE MULLIN, et al., )\n )\n Defendants. )\n_________ _ )\n\n\n MEMORANDUM OPINION\n August f 3 ~2026 [Dkt. #3]\n\n For decades, plaintiff the Tohono O'odham Nation and the United States\n\nGovernment have worked together to secure a sixty-two mile stretch of the international\n\nborder with Mexico. In 2004, the Tohono O'odham Nation agreed to construction of a\n\nvehicle barrier over most of the international border that stops vehicles-but not people-\n\nfrom crossing. The Government now plans to replace the vehicle barrier with a\n\ncongressionally-authorized and funded border wall next to the Tohono O'odham\n\nReservation. Plaintiff seeks a preliminary injunction to stop construction on grounds that\n\nthe border wall will change the Reservation boundaries and will result in trespasses over\n\nthe Reservation. Because plaintiff is unlikely to succeed on the merits of these claims, and\n\nbecause the remaining preliminary injunction factors favor the Government, I will DENY\n\nplaintiff's Motion for a Preliminary Injunction.\n\n\n 1\n\f Case 1:26-cv-02127-RJL Document 45 Filed 08/14/26 Page 2 of 18\n\n\n\n\n BACKGROUND\n\nI. The United States-Mexico International Border\n\n The international border between the United States and Mexico stretches for nearly\n\n2,000 miles and spans four states-California, Arizona, New Mexico, and Texas. 1\n\nSecuring and maintaining control of such a lengthy and geographically varied border is a\n\nchallenge, especially given the high volume of illegal entries and drug smuggling. For\n\nexample, at the Arizona border from 2021 to 2026, the Government apprehended 1.3\n\nmillion illegal aliens and seized thousands of pounds of illicit drugs, including over 3,475\n\npounds offentanyl, 17,200 pounds of marijuana, and 11,750 pounds ofmethamphetamine.\n\nDeel. of Paul Enriquez (\"Enriquez Deel.\") [Dkt. #18-2] ,r 10.\n\n Congress has directed the Secretary of Homeland Security (the \"Secretary\") to\n\n\"achieve and maintain operational control over\" the United States-Mexico border,\n\nincluding through \"physical infrastructure enhancements.\" Secure Fence Act of 2006, Pub.\n\nL. No. 109-367, \u00a7 2(a), 120 Stat. 2638, 2638 (codified at 8 U.S.C. \u00a7 1701 note). Congress\n\nhas repeatedly passed legislation authorizing the Secretary to construct physical barriers at\n\nthe border. See, e.g., Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104-\n\n208, \u00a7 102, 110 Stat. 3009, 3009-554 (1996) (codified at 8 U.S.C. \u00a7 1103 note and\n\nhereinafter referred to as the Illegal Immigration Reform and Immigrant Responsibility\n\nAct, or \"IIRIRA\"). Most recently, Congress appropriated $46 billion to U.S. Customs and\n\nBorder Protection for, among other things, the\"[ c]onstruction, installation, or improvement\n\n\n1\n Smart Wall Map, U.S. Customs & Border Protection, https://perma.cc/9LWK-6HEP (last accessed Aug.\n10, 2026).\n 2\n\f Case 1:26-cv-02127-RJL Document 45 Filed 08/14/26 Page 3 of 18\n\n\n\n\n of new or replacement primary, waterborne, and secondary barriers.\" One Big Beautiful\n\n Bill Act, Pub. L. No. 119-21, tit. IX, sec. 90001, 139 Stat. 72,358 (2025).\n\n To fast-track border construction, Congress authorized the Secretary to \"waive all\n\n legal requirements ... necessary to ensure expeditious construction of the barriers and\n\n roads under this section.\" IIRIRA \u00a7 102(c)(l). Congress further limited federal courts'\n\n jurisdiction over \"any action undertaken, or any decision made, by the Secretary\" pursuant\n\n to IIRIRA's waiver authority. IIRIRA \u00a7 102(c)(2)(A). The statute permits only\n\n constitutional challenges to such \"action[s]\" or \"decision[s],\" and any legal challenges\n\n must be brought within sixty days. IIRIRA \u00a7 102(c)(2)(B), (C). On April 3, 2008, the\n\n Secretary issued a broad waiver of numerous environmental and procedural laws, including\n\n the Administrative Procedure Act, for projects \"in the States of California, Arizona, New\n\n Mexico, and Texas.\" 73 Fed. Reg. 18293; see also 91 Fed. Reg. 45823, 45823 (July 21,\n\n 2026) (waiving numerous laws specifically for the Tucson 5 Project).\n\nII. The Tohono O'odham Nation\n\n Plaintiff, the Tohono O'odham Nation (\"plaintiff' or \"the Nation\"), is a \"federally\n\nrecognized Indian tribe with a government-to-government relationship with the United\n\n States.\" Compl. [Dkt. #1] ,r 8. The Nation occupies a 2.8 million-acre reservation in\n\nArizona. Id. ,r 13. For approximately sixty-two miles, the Nation's reservation runs\n\nalongside the international border with Mexico. Id.\n\n Plaintiff's \"broader aboriginal territory\" \"extends throughout much of present-day\n\nArizona and into Mexico.\" Id. ,r 24. There are currently \"[s]eventeen O'odharn\n\ncommunities with approximately 2,000 members\" in Mexico, and members of the Nation\n\n 3\n\f Case 1:26-cv-02127-RJL Document 45 Filed 08/14/26 Page 4 of 18\n\n\n\n\n \"continue to cross the border for sacred pilgrimages and ceremonies at important religious\n\n and cultural sites.\" Id. ,r 27.\n\n The Nation has a \"long-standing cooperative relationship\" with the U.S.\n\n Government when it comes to border security and enforcement. Id. ,r 34. In addition to\n\n collaborating with federal law enforcement agencies, the Nation has led a High Intensity\n\n Drug Trafficking Task Force (the NATIVE Task Force) targeting drug trafficking within\n\n the Nation's borders. Deel. of James Cook (\"Cook Deel.\") [Dkt. #3-5] ,r 11. The Nation\n\n has authorized construction of \"two Customs and Border Protection Forward Operating\n\n Bases on the Reservation,\" ten \"Integrated Fixed Towers\" for border surveillance, and\n\n \"vehicle barriers and a patrol road along the vast majority of the border, with the exception\n\n of those areas where vehicle access is impossible due to mountainous terrain.\" Compl.\n\n ,r,r 36, 38. Today, the four-foot vehicle barrier along most of the international border\n prevents vehicles from crossing the border but offers little resistance to pedestrians who\n\n wish to go over or under these barriers. See Cook Deel. ,r 15.\n\nIII. The Tucson 5 Project\n\n In the spring of 2026, the U.S. Department of Homeland Security informed plaintiff\n\n of its \"plans to construct a border wall and associated infrastructure along the international\n\n border within the Nation's Reservation.\" Compl. ,r 49. Plaintiff has not consented to any\n\n construction. Id. ,r 51. On June 26, 2026, U.S. Customs and Border Protection awarded a\n\n contract for construction of a \"primary physical barrier\" and \"barrier system attributes\" in\n\n what the Government is calling the \"Tucson 5 Project.\" Enriquez Deel. ,r 11. Design work\n\n\n\n 4\n\f Case 1:26-cv-02127-RJL Document 45 Filed 08/14/26 Page 5 of 18\n\n\n\n\n is underway. See id. ,r 14. U.S. Customs and Border Protection \"does not anticipate\n\n construction activities starting prior to October 12, 2026.\" Id.\n\nIV. Procedural History\n\n On June 16, 2026, the Nation sued defendants Markwayne Mullin, Rodney Scott,\n\n and Rosario Vasquez (\"defendants\") all in their official capacities as Secretary of the U.S.\n\n Department of Homeland Security, Commissioner of U.S. Customs and Border Protection,\n\n and Chief ofU.S. Border Patrol, respectively. See Compl. The next day, the Nation moved\n\n for a preliminary injunction halting construction of the border wall adjacent to the Nation's\n\n reservation. See Pl.'s Mot. for Prelim. Inj. (\"Mot.\") [Dkt. #3]. The Government opposes.\n\n See Defs.' Mem. of Points & Authorities in Opp'n to Pl. 's Mot. for Prelim. Inj. [Corrected]\n\n (\"Opp'n\") [Dkt. #19-1]. Plaintiff filed its reply on July 14, 2026. See Pl.'s Reply Mem.\n\n (\"Reply\") [0kt. #25].\n\n On July 22, 2026, the Court held a hearing on plaintiff's motion for a preliminary\n\n injunction. See Hr'g Tr. [Dkt. #43]. At the close of the hearing, the Court provided the\n\n parties with the opportunity to \"submit a supplemental pleading based on the arguments\n\n that took place here today.\" Hr'r Tr. at 37:6-7. The parties submitted their supplemental\n\n briefs on July 30, 2026. See Suppl. Mem. of the Tohono O'odham Nation in Supp. of its\n\n Mot. for Prelim. Inj. (\"Pl.'s Suppl. Br.\") [Dkt. #37]; Defs.' Suppl. Br. in Opp'n to Pl.'s Mot.\n\n for Prehm. Inj. (\"Defs.' Suppl. Br.\") [Dkt. #39-1]. The motion is now ripe for decision.\n\n LEGAL STANDARD\n\n A preliminary injunction is \"an extraordinary remedy that may only be awarded\n\n upon a clear showing that the plaintiff is entitled to such relief.\" Winter v. NRDC, Inc., 555\n\n 5\n\f Case 1:26-cv-02127-RJL Document 45 Filed 08/14/26 Page 6 of 18\n\n\n\n\nU.S. 7, 22 (2008). To obtain a preliminary injunction, the movant \"must establish that he\n\nis likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence\n\nof preliminary relief, that the balance of equities tips in his favor, and that an injunction is\n\nin the public interest.\" Id. at 20.\n\n ANALYSIS\n\nI. Likelihood of Success on the Merits\n\n A. Ultra Vires Claim\n\n Plaintiff argues that defendants' planned construction of the border wall is ultra vires\n\nbecause the wall will diminish the boundaries of the Reservation without express\n\ncongressional authorization and will violate 25 U.S.C. \u00a7 398d. 2 While ultra vires review\n\nis available, I conclude that plaintiff is unlikely to succeed on the merits because the federal\n\nRoosevelt Reservation exists along the international border and, in any event, plaintiff has\n\nnot established that construction of a border wall will indeed alter Reservation boundaries.\n\n 1. Availability of Ultra Vires Review\n\n Before getting to the merits of a nonstatutory ultra vires claim, the plaintiff must\n\nshow that \"(i) there is no express statutory preclusion of all judicial review\" and \"(ii) there\n\nis no alternative procedure for review of the statutory claim.\" Fed. Express Corp. v. US.\n\nDep 't of Com. (\"FedEx\"), 39 F.4th 756, 763 (D.C. Cir. 2022) (internal quotation marks\n\n\n\n\n2\n 25 U.S.C. \u00a7 398d provides that \"[c]hanges in the boundaries ofreservations created by Executive order,\nproclamation, or otherwise for the use and occupation of Indians shall not be made except by Act of\nCongress.\"\n 6\n\f Case 1:26-cv-02127-RJL Document 45 Filed 08/14/26 Page 7 of 18\n\n\n\n\nomitted). Defendants argue that IIRIRA Section 102(c)(2) expressly precludes review of\n\nplaintiff's ultra vires claim. On this point, I disagree.\n\n \"Judicial review for ultra vires agency action 'rests on the longstanding principle\n\nthat if an agency action is unauthorized by the statute under which [the agency] assumes to\n\nact, the agency has violate[ d] the law and the courts generally have jurisdiction to grant\n\nrelief.\"' FedEx, 39 F.4th at 763 (quoting National Ass 'n ofPostal Supervisors v. USPS, 26\n\nF.4th 960, 970 (D.C. Cir. 2022)). The \"presum[ption] that agency action is judicially\n\nreviewable,\" however, \"may be overcome by specific language that is a reliable indicator\n\nof congressional intent.\" DCH Reg'! Med. Ctr. v. Azar, 925 F.3d 503,505 (D.C. Cir. 2019)\n\n(quoting Knapp Med. Ctr. v. Hargan, 875 F.3d 1125, 1128 (D.C. Cir. 2017)). The relevant\n\nquestion, then, is whether Congress has \"clearly and directly\" prohibited judicial review of\n\nplaintiff's ultra vires claim. Bd. of Governors of Fed. Rsrv. Sys. v. MCorp Fin., Inc., 502\n\nU.S. 32, 44 (1991).\n\n Defendants argue that IIRIRA's waiver provision-Section 102(c)(1 )-and the\n\naccompanying jurisdiction-stripping provision-Section 102(c)(2)-preclude plaintiff's\n\nultra vires claim. Section 102(c)(1) provides:\n\n Notwithstanding any other provision of law, the Secretary of Homeland\n Security shall have the authority to waive all legal requirements such\n Secretary ... determines necessary to ensure expeditious construction of the\n barriers and roads under this section.\n\n8 U.S.C. \u00a7 1103 note.\n\n Section 102(c)(2)(A) provides:\n\n The district courts of the United States shall have exclusive jurisdiction to\n hear all causes or claims arising from any action undertaken, or any decision\n\n 7\n\f Case 1:26-cv-02127-RJL Document 45 Filed 08/14/26 Page 8 of 18\n\n\n\n\n made, by the Secretary ofHomeland Security pursuant to paragraph (1). A\n cause of action or claim may only be brought alleging a violation of the\n Constitution of the United States. The court shall not have jurisdiction to\n hear any claim not specified in this subparagraph.\n\nId. (emphasis added). The connection between plaintiff's ultra vires claim and the\n\njurisdiction-stripping provision is not obvious. Plaintiff argues that defendants' planned\n\nconstruction of the border wall is ultra vires because the wall will diminish reservation\n\nboundaries without congressional authorization. Unlike many recent border wall cases,\n\nplaintiff does not challenge the legality of a secretarial waiver pursuant to IIRIRA Section\n\n102(c)(l). See, e.g., Ctr.for Biological Diversity v. McAleenan, 404 F. Supp. 3d 218,235\n\n(D.D.C. 2019). Defendants nevertheless argue that Section 102(c)(2)'s jurisdiction-\n\nstripping provision applies here because ultra vires review is available only when \"there is\n\nno alternative procedure for review of the statutory claim,\" FedEx, 39 F.4th at 763, and\n\nplaintiff relies on the Secretary's waiver of the Administrative Procedure Act to satisfy this\n\nrequirement. In other words, because plaintiff's ultra vires claim is \"premised on an\n\nIIRIRA waiver,\" Section 102(c)(2) precludes plaintiff's claim. Defs.' Suppl. Br. at 4.\n\n Our Circuit's reasoning in North American Butterfly Association v. Wolf strongly\n\nsuggests-if not requires me to find-that plaintiff's ultra vires claim about diminishment\n\nof reservation b~:mndaries does not \"arise from\" the Secretary's 2008 waiver of the\n\nAdministrative Procedure Act. In North American Butterfly, our Circuit Court explained\n\nthat Section 102(c)(2) \"(b]y its terms ... does not extend to construction or related activities\n\nthat do not necessarily flow from exercise of the waiver authority as such, but that IIRIRA\n\nsection 102(a)-(b) authorizes independently.\" 977 F.3d 1244, 1260 (D.C. Cir. 2020).\n\n\n 8\n\f Case 1:26-cv-02127-RJL Document 45 Filed 08/14/26 Page 9 of 18\n\n\n\n\n\"Because ' arise' out of means ' to originate from a specified source, the phrase ' arising out\n\nof' generally requires ' a causal connection,' not merely a 'logical' one.\" Id. (internal\n\ncitations omitted).\n\n The 2008 waiver enables plaintiff to bring an ultra vires claim because there are no\n\nother avenues for judicial review. But it can hardly be said that the Secretary's waiver\n\ncaused plaintiff's ultra vires claim. Cf Ford Motor Co. v. Montana Eighth Jud. Dist. Ct.,\n\n592 U.S. 351,362 (2021) (explaining, in the context of personal jurisdiction, that \"arise\n\nout of' requires a \"causal showing\"). Interpreting Section 102(c)(2) 's \"arising from\"\n\nlanguage to \"require[] a causal connection,\" North American Butterfly, 977 F.3d at 1260\n\n(internal quotation marks omitted), also gives effect to IIRIRA's specific reference to\n\nSection 102(c)(l). Congress could have stripped jurisdiction over any actions or decisions\n\npursuant to the Secretary's authority under Sections 102(a) and 102(b), but it instead\n\nfocused the jurisdiction-stripping provision on the Secretary's waiver authority under\n\nSection 102(c). Consistent with this reasoning, at least one court has exercised jurisdiction\n\nover ultra vires claims \"challeng[ing] the scope of the Secretary's authority to build roads\n\nand walls under section 102(a) and 102(b), not the scope of waiver authority under section\n\n102(c).\" In re Border Infrastructure Env't Litig., 915 F.3d 1213, 1221 (9th Cir. 2019).\n\nSection 102(c)(2) therefore does not supply \"clear and convincing evidence that Congress\n\nintended to deny the District Court jurisdiction\" over plaintiff's ultra vires claim. MCorp\n\n\n\n\n 9\n\f Case 1:26-cv-02127-RJL Document 45 Filed 08/14/26 Page 10 of 18\n\n\n\n\nFin., Inc., 502 U.S. at 44. 3\n\n 2. Merits\n\n That hurdle aside, to succeed on the merits of its ultra vires claim, plaintiff must\n\nestablish that defendants have \"plainly act[ed] in excess of [their] delegated powers and\n\ncontrary to a specific prohibition in the statute that is clear and mandatory.\" FedEx, 39\n\nF.4th at 763 (internal quotation marks omitted). As I have said before, \"ultra vires review\n\nis a high bar\"-it is the ultimate \"Hail Mary pass.\" Nat'! Tr. for Historic Pres. v. Nat'/\n\nPark Serv., 827 F. Supp. 3d 93, 104 (D.D.C. 2026) (quoting Nuclear Regul. Comm 'n v.\n\nTexas, 605 U.S. 665, 681 (2025)). Plaintiff is unlikely to clear this high bar.\n\n To succeed on an ultra vires claim, the plaintiff must show that \"the agency has\n\n'stepped so plainly beyond the bounds of [its statutory authority] , or acted so clearly in\n\ndefiance of it, as to warrant the immediate intervention of an equity court.\"' FedEx, 39\n\nF.4th at 764 (quoting Griffith v. FLRA, 842 F.2d 487, 493 (D.C. Cir. 1988)). \"Only error\n\nthat is patently a misconstruction of the Act, that disregards a specific and unambiguous\n\nstatutory directive, or that violates some specific command of a statute will support relief.\"\n\nId. (cleaned up). The legal error must be \"so extreme that one may view it as jurisdictional\n\nor nearly so.\" Changji Esque/ Textile Co. v. Raimondo, 40 F.4th 716, 722 (D.C. Cir. 2022)\n\n(quoting Griffith, 842 F.2d at 493).\n\n\n\n\n3\n Defendants do not separately argue that there is a \"statutory review scheme provid[ing] aggrieved persons\nwith a meaningful and adequate opportunity for judicial review.\" Nuclear Regul. Comm 'n v. Texas, 605\nU.S. 665, 681 (2025) (internal quotation marks omitted).\n\f Case 1:26-cv-02127-RJL Document 45 Filed 08/14/26 Page 11 of 18\n\n\n\n\n Plaintiff argues that the proposed border wall will unlawfully diminish the Nation's\n\nreservation boundaries without the authority of Congress and in violation of 25 U.S.C.\n\n\u00a7 398d. Plaintiff's ultra vires claim suffers, unfortunately, from multiple deficiencies.\n\n First, the Roosevelt Reservation likely exists along the international border. In\n\n1907-ten years before the creation of the Nation's modern-day Reservation by executive\n\norder-President Theodore Roosevelt \"set apart as a public reservation[] all public lands\n\nwithin sixty feet of the international boundary between the United States and the Republic\n\nof Mexico.\" Proclamation of May 27, 1907, 35 Stat. 2136, 2136 [Dkt. #18-3]. Plaintiff\n\nargues that it had aboriginal title to the land before the creation of the Roosevelt\n\nReservation, so the Nation's lands were not \"public lands,\" and therefore the Roosevelt\n\nReservation has never existed on the reservation. Mot. at 22-31. But historical evidence\n\ncasts doubt on plaintiff's theory.\n\n In a 1934 dispute before the Solicitor of the Interior, the Nation argued that they\n\nheld rights to land \"in fee by virtue of a title vested in them before the area in question\n\ncame under the sovereignty of the United States,\" so \"the land never became part of the\n\npublic domain,\" or \"public lands.\" Solicitor's Memorandum Opinion M-27656 (Mar. 1,\n\n1934) at 360, supplemented by M-27656 (Supp.) (May 7, 1934) [Dkt. #18-7]. The Solicitor\n\nof the Interior issued an opinion concluding that \"the interest of the [Nation] in the land\n\nthey claim [is] subordinate to a superior proprietorship in the United States.\" Id. at 363.\n\nThe Nation did not \"have a perfected title in fee which precludes the United States from\n\nexercising any proprietorship over the land.\" Id. While the opinion recognized that the\n\nNation retained the \"Indian right of surface occupancy,\" id. at 438, this right was not\n\n 11\n\f Case 1:26-cv-02127-RJL Document 45 Filed 08/14/26 Page 12 of 18\n\n\n\n\nequivalent to an \"independent title which can . . . embarrass any future action that to\n\nCongress may seem appropriate in the premises.\" Id. at 438, 370-71. The opinion\n\ntherefore calls into question plaintiff's claim that the Reservation land was not \"public\n\nland\" before the President established the Reservation in 1917.\n\n Subsequent practice reflects multiple instances in which the Government and the\n\nNation acknowledged the existence of the Roosevelt Reservation. In 193 7, Congress\n\npassed a law modifying the boundaries of the Nation's Reservation but expressly noting\n\nthat \"[t]his extension shall not affect ... the reservation of a strip of land sixty feet wide\n\nalong the United States-Mexico boundary made by proclamation of the President dated\n\nMay 27, 1907.\" Act of July 28, 1937, Pub. L. No. 75-217, 50 Stat. 536 [Dkt. #18-4]. And\n\nas recently as 2004, the Nation-in approving construction of a vehicle barrier along the\n\ninternational border-acknowledged that U.S. Border Patrol \"plans to construct the border\n\nvehicle barrier and road entirely within the sixty-foot strip of land reserved by the\n\nPresidential Proclamation of President Theodore Roosevelt dated May 27, 1907.\"\n\nResolution No. 04-095 (Mar. 8, 2004) [Dkt. #18-6].\n\n Plaintiff points to other historical evidence to argue that the Roosevelt Reservation\n\nhas never existed on the Nation's Reservation because the Reservation was never \"public\n\nland,\" but plaintiff's evidence is flawed. The 1968 Indian Claims Commission decision\n\nthat recognized the Nation's aboriginal title also stated specifically that the \"Gadsden\n\nPurchase of 1854 brought the subject lands under United States sovereignty and they\n\nbecame public land by the Act of July 22, 1854.\" 19 Ind. Cl. Comm. 394, 432 [Dkt. #3-\n\n15] (emphasis added). The decision goes on to say that the \"[ 1854] Act provided for the\n\n 12\n\f Case 1:26-cv-02127-RJL Document 45 Filed 08/14/26 Page 13 of 18\n\n\n\n\napplication to the new public lands of the pre-emption laws of the Territory of New Mexico\n\nother than on lands covered by claims based on Spanish or Mexican law.\" Id. (emphasis\n\nadded). Plaintiff suggests that this phrase included claims based on aboriginal title. See\n\nReply at 7-8. But the case plaintiff relies on does not say this outright. See United States\n\nv. Santa Fe Pacific Railroad Co., 314 U.S. 339,351 (1941) (\"[T]heseActs were concerned\n\nnot with the problem of ascertaining the boundaries oflndian country but with the problem\n\nof quieting titles originating under Spanish or Mexican grants.\") Such conflicting historical\n\nevidence is not the stuff of successful ultra vires claims. 4\n\n Second, even if the Roosevelt Reservation does not exist on the Nation's\n\nReservation, plaintiff has not shown how construction of a wall on the existing international\n\nborder will change the boundaries of the Nation's reservation. The core of plaintiff's ultra\n\nvires theory is that only Congress can \"adjust the Nation's boundaries.\" Pl.'s Suppl. Br. at\n\n2. As a legal matter, it is well-established that Congress has exclusive authority to diminish\n\nreservation boundaries, and that Congress must make its intent to do so clear and\n\nunambiguous. See McGirt v. Oklahoma, 591 U.S. 894, 903-04 (2020). But I am not aware\n\nof any case holding that construction of a border wall adjacent to a Reservation-with the\n\npossibility of activities that may interfere with the Nation's use and occupancy rights-\n\nnecessarily diminishes the Reservation's boundaries.\n\n\n\n\n4\n Plaintiffs' reliance on references to the Nation's grazing of cattle up to the border is not persuasive because,\nas defendants argue, \"[t]here is no conflict between the federal government's reservation of the land for\nnational security purposes and transient uses like grazing.\" Defs.' Suppl. Br. at 8.\n 13\n\f Case 1:26-cv-02127-RJL Document 45 Filed 08/14/26 Page 14 of 18\n\n\n\n\n To the contrary, the establishment of non-Indian towns, or the sale of property to\n\nnon-Indians, does not change the reservation status of the lands. See, e.g., Seymour v.\n\nSuperintendent of Wash. State Penitentiary, 368 U.S. 351, 358-59 (1962) (rejecting\n\nargument that \"lands owned by towns\" were \"exclud(ed] from a reservation\"). As\n\ndefendants persuasively argue, \"constructing a border barrier is not the type of action that\n\ncould change the status or boundaries of a reservation.\" Defs.' Suppl. Br. at 5.\n\n Plaintiff's novel ultra vires theory therefore fails to meet the \"high bar,\" Nat 'l Tr.\n\nfor Historic Pres., 827 F. Supp. 3d at 104, for extraordinary equitable relief.\n\n B. Trespass Claim\n\n As a fallback, plaintiff argues that defendants' planned border wall may be enjoined\n\nfor the independent reason that it constitutes a trespass on the Reservation. Plaintiff's\n\ntrespass claim is unlikely to succeed on the merits because the federal government's\n\nsovereign immunity bars its claim.\n\n As our Circuit has explained, \"claims against the federal government and its actors\n\nare jurisdictionally barred by sovereign immunity.\" Schilling v. US. House of\n\nRepresentatives, 102 F.4th 503, 506 (D.C. Cir. 2024). Congress may waive sovereign\n\nimmunity through \"clear statutory text\" in statutes such as the Administrative Procedure\n\nAct or the Federal Tort Claims Act. Id. Courts interpret such statutes \"strictly,\" and any\n\nexceptions to the Government's sovereign immunity \"are not to be lightly implied.\" Block\n\nv. N Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 287 (1983). Plaintiff does\n\nnot argue that any statute waives sovereign immunity here. It couldn't!\n\n\n\n 14\n\f Case 1:26-cv-02127-RJL Document 45 Filed 08/14/26 Page 15 of 18\n\n\n\n\n Instead, plaintiff relies on the Larson-Dugan exception to sovereign immunity for\n\nboth its ultra vires and trespass claims. Under the Larson-Dugan exception, \"if the federal\n\nofficer, against whom injunctive relief is sought, allegedly acted in excess of his legal\n\nauthority, sovereign immunity does not bar a suit.\" Chamber of Com. of U.S. v. Reich, 74\n\nF.3d 1322, 1329 (D.C. Cir. 1996) (citing Larson v. Domestic & Foreign Commerce Corp.,\n\n337 U.S. 682, 690-91 (I 949)). In other words, sovereign immunity does not bar successful\n\nultra vires claims. As explained supra Section I.A., plaintiff's ultra vires claim fails on the\n\nmerits so the Larson-Dugan exception cannot operate to waive defendants' sovereign\n\nimmunity for plaintiff's trespass claim.\n\n Plaintiff argues that the Larson-Dugan exception also extends to suits seeking \"an\n\ninjunction against a state officer who abridges a common law duty without statutory\n\nauthorization.\" Mot. at 19-20 (quoting Leopold v. Manger, 102 F.4th 491,495 (D.C. Cir.\n\n2024)). But the cases cited by plaintiff all involve mandamus petitions seeking access to\n\ndocuments under the common law right of public \u00b7access. See Leopold, l 02 F.4th at 493;\n\nSchilling, 102 F.4th at 505; Leopold v. Sullivan, 823 F. Supp. 3d 59, 64 (D.D.C. 2026). As\n\nfar as I can tell, no court has extended the Larson-Dugan exception to common law tort\n\nclaims, let alone trespass claims, seeking injunctive relief against the Government.\n\n However, even if plaintiff established a waiver of the Government's sovereign\n\nimmunity, the availability of a federal common law trespass claim by an Indian tribe against\n\nthe federal government is at best uncertain. Plaintiff relies on dicta to suggest the\n\navailability of such a cause of action. See Edwardsen v. Morton, 369 F. Supp. 1359, 1371\n\n(D.D.C. 1973) (explaining that \"officers are themselves liable in trespass if their actions\n\n 15\n\f Case 1:26-cv-02127-RJL Document 45 Filed 08/14/26 Page 16 of 18\n\n\n\n\ncause[] third parties to enter the land\" but concluding that \"resort to that principle of tort\n\nlaw actually is unn[ e]cessary in view of the fiduciary duty of the federal government and\n\nits agents to protect the interests of Native Americans\"). But plaintiff has not identified\n\nany case (outside the context of a Federal Tort Claims Act claim for damages) involving a\n\ncommon law trespass suit against the Government.\n\n Indeed, significant uncertainties remain about the actual scope of construction\n\nactivities and the extent to which they may interfere with the Nation's land outside the\n\nRoosevelt Reservation. See Enriquez Deel. ,r 13 (\"[T]he contractor has been instructed to\n\nconfine the project footprint ... to the 60-foot federal Roosevelt Reservation.\"). At this\n\nearly stage, plaintiff has not established a '\"clear showing' of entitlement\" to the\n\nextraordinary remedy of preliminary injunctive relief. Haynes v. Navy Fed. Credit Union,\n\n841 F. Supp. 2d 221 , 223 (D.D.C. 2012) (quoting Winter, 555 U.S. at 21).\n\n II. Remaining Winter Factors\n\n Because plaintiff is unlikely to succeed on the merits, I could deny relief on that\n\nbasis alone. Cf Clevinger v. Advoc. Holdings, Inc., 134 F.4th 1230, 1236 (D.C. Cir. 2025).\n\nBut for the sake of completeness, I will briefly address the remaining Winter factors, all of\n\nwhich favor defendants.\n\n To prevail, plaintiff must show that it is \"likely to suffer irreparable harm in the\n\nabsence of preliminary relief.\" Winter, 555 U.S. at 20. The threat of harm must be \"both\n\ncertain and great, actual and not theoretical, beyond remediation, and of such imminence\n\nthat there is clear and present need for equitable relief.\" Mexichem Specialty Resins, Inc.\n\nv. EPA, 787 FJd 544, 555 (D.C. Cir. 2015) (internal quotation marks omitted). Plaintiff\n\n 16\n\f Case 1:26-cv-02127-RJL Document 45 Filed 08/14/26 Page 17 of 18\n\n\n\n\nmust also show that \"the balance of equities tips in [its] favor,\" and that \"an injunction is\n\nin the public interest.\" Winter, 555 U.S. at 20. When \"the Government is the opposing\n\nparty,\" these final two factors \"merge.\" Nken v. Holder, 556 U.S. 418, 435 (2009).\n\n Plaintiff argues that the planned border wall will inflict irreparable harm to its\n\nsovereignty and proprietary control over its lands, as well as cause environmental and First\n\nAmendment harms. See Mot. at 41--43. Plaintiff's alleged harms based on its claim to the\n\nland leading up to the international border are not likely to materialize because, as\n\nexplained supra Section I.A.2., the Roosevelt Reservation likely exists along the Nation's\n\nborder, and defendants have not yet articulated plans to construct outside the Roosevelt\n\nReservation. Regarding the environmental and First Amendment harms, plaintiff has\n\npointed to numerous harms to the landscape, including \"four sets of mountain peaks\" that\n\nare \"sacred peaks to the Tohono people.\" Hr'g Tr. at 12:11-12, 15. Defendants note,\n\nhowever, that plans have not yet been finalized for the border wall, and that many-if not\n\nall-of plaintiff's alleged environmental and First Amendment injuries could be mitigated\n\nthrough consultation with the Nation and accommodations, such as crossing gates to enable\n\nmembers of the Nation to access the international border. See Enriquez Deel. ~~ 16-1 7,\n\n24-29, 33. Given the possibility of mitigating plaintiff's injuries, I find that plaintiff has\n\nnot yet established irreparable harm that is \"certain\" and \"great.\" Mexichem Specialty\n\nResins, Inc., 787 F.3d at 555 (internal quotation marks omitted).\n\n And in any event, I find that the Government's interests in securing the border,\n\nenforcing immigration laws, and ensuring public safety outweigh any surviving irreparable\n\nharms at this juncture. \"The Supreme Court has recognized that the public interest in\n\n 17\n\f Case 1:26-cv-02127-RJL Document 45 Filed 08/14/26 Page 18 of 18\n\n\n\n\nenforcement of the immigration laws is significant.\" Blackie s House of Beef, Inc. v.\n\nCastillo, 659 F.2d 1211, 1221 (D.C. Cir. 1981). Congress, through enacting IIRIRA and\n\nappropriating funds for border wall construction, has identified physical border walls as a\n\nkey component of border security. Given the national security and foreign policy\n\nconsiderations related to the border wall, deference to the Government is warranted,\n\nparticularly for plaintiff's ultra vires claim. See Changji Esque! Textile Co. v. Raimondo,\n\n40 F.4th 716, 723 (D.C. Cir. 2022).\n\n CONCLUSION\n\n The international border is an area of great significance to both the United States\n\nand to the Nation. While I have concluded that a preliminary injunction is unwarranted, I\n\nfully expect the Government in the months ahead to follow through on its guarantees of\n\nconsultation and cooperation with the Nation to address the Nation's concerns regarding\n\nborder wall construction!\n\n For the foregoing reasons, it is hereby ORDERED that plaintiff's Motion for a\n\nPreliminary Injunction [Dkt. #3] is DENIED. An accompanying order will issue\n\ncontemporaneously with this opinion.\n\n\n\n\n Rl~J.LEON\n United States District Judge\n\n\n\n\n 18\n\f","ocr_status":2,"date_upload":"2026-08-27T17:28:26.168196-07:00","document_number":"45","attachment_number":null,"pacer_doc_id":"045012282771","is_available":true,"is_free_on_pacer":true,"is_sealed":null,"document_type":1,"description":"Memorandum & Opinion","acms_document_guid":""}],"date_created":"2026-08-14T09:13:03.964791-07:00","date_modified":"2026-08-27T00:05:25.050506-07:00","date_filed":"2026-08-14","time_filed":"11:57:38","entry_number":45,"recap_sequence_number":"2026-08-14.001","pacer_sequence_number":163,"description":"MEMORANDUM OPINION. Signed by Judge Richard J. Leon on 8/13/2026. (lcrjl2) (Entered: 08/14/2026)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/474204032/","id":474204032,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/73493770/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/489696725/","id":489696725,"tags":[],"absolute_url":"/docket/73493770/44/tohono-oodham-nation-v-mullin/","date_created":"2026-08-12T12:28:08.107989-07:00","date_modified":"2026-08-23T08:29:41.038775-07:00","sha1":"f976261b0fbeaef5ab064d9613fa9a1e7eb131fd","page_count":3,"file_size":314747,"filepath_local":"recap/gov.uscourts.dcd.293593/gov.uscourts.dcd.293593.44.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.dcd.293593/gov.uscourts.dcd.293593.44.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 1:26-cv-02127-RJL Document 44 Filed 08/12/26 Page 1 of 3\n\n\n\n\n IN THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLUMBIA\n\n TOHONO O\u2019ODHAM NATION, )\n a federally recognized Indian tribe, )\n )\n Plaintiff, )\n )\n v. ) Case No. 26-cv-2127-RJL\n )\n MARKWAYNE MULLIN, in his official )\n capacity as Secretary of Homeland )\n Security; RODNEY SCOTT, in his official )\n capacity as Commissioner of U.S. Customs )\n and Border Protection; and ROSARIO )\n VASQUEZ, in his official capacity as )\n Chief of U.S. Border Patrol, )\n Defendants. )\n )\n\n DEFENDANTS\u2019 RESPONSE TO PLAINTIFF\u2019S\n NOTICE OF PLANNED ACTIVITY\n\n Defendants submit this response to Plaintiff\u2019s August 6, 2026 \u201cNotice of United\n\nStates\u2019 Planned Activity on Tohono O\u2019odham Reservation,\u201d Dkt. #41. The Notice\n\nattached an email in which the Department of Justice informed Plaintiff of upcoming\n\ngeotechnical testing within the Roosevelt Reservation. (Dkt. #41-1 (\u201cDOJ Email\u201d). 1\n\n Although the Notice appears to complain about the lack of notice for this testing\n\n(Dkt. #41, \u00b6 2), Plaintiff\u2019s own filings and statements make plain that Plaintiff (1) has\n\nknown for several weeks that Defendants planned to conduct this testing and (2) expected\n\nthe testing to occur at any time. See, e.g., Tr. of July 22, 2026, at 31\u201332 (\u201c[T]he\n\nGovernment has said \u2026 it needs to come on the Reservation and do geo-technical\n\n\n1\n Defendants originally expected their contractor to mobilize on August 10, with testing\nbeginning the following day. Defendants now expect their contractor to begin testing on\nAugust 12.\n\f Case 1:26-cv-02127-RJL Document 44 Filed 08/12/26 Page 2 of 3\n\n\n\n\nborings \u2026[Y]ou\u2019re going to have Government agents, officials, contractors \u2026\n\nconducting activities on the Reservation \u2014 it could be tomorrow, it could be next week.\u201d)\n\n(emphasis added); Pl. Reply, 17\u201318 (Dkt. #25, 25\u201326) (\u201c[T]he Secretary intends for his\n\nagents to enter the Nation\u2019s lands in upcoming weeks to conduct geotechnical borings.\u201d)\n\n(emphasis added) (citing Defendants\u2019 opposition brief and the supporting declaration of\n\nPaul Enriquez (Dkt. #19-1, 18-2).\n\n Next, the Notice wrongly accuses the United States of \u201cexploiting\u201d the litigation\n\nprocess by proceeding with testing while Plaintiff\u2019s motion for preliminary injunctive\n\nrelief is pending. (Dkt. #41, \u00b6 3.) This is false. As laid out in Defendants\u2019 filings, the\n\nUnited States reserved the right to use the 60-foot strip of land along the U.S.-Mexico\n\nborder (which includes land along the southern border of the Tribal Reservation) for\n\nborder security purposes, and Congress has authorized and directed Defendants to\n\nconstruct a barrier along the border to protect the United States. See generally Dkt. #19-2,\n\n39-1, and supporting materials. Defendants are charged with determining what activities\n\nare needed to fulfill their congressional mandates and with carrying out those activities,\n\nand Plaintiff cannot seriously dispute that the mere filing of a lawsuit challenging an\n\nagency action does not make it improper for the agency to carry out geotechnical testing.\n\n Since filing its Notice, Plaintiff unfortunately seems to be trying to intimidate\n\nDefendants\u2019 contractor from performing this necessary testing. For example, its\n\nChairman sent a letter (attached here) to Defendants\u2019 contractor asserting that\n\n\u201cconstruction-related activities, or staging any construction related equipment or\n\nmaterials, constitute trespass.\u201d (Attach. A, at 3.) The letter noted that Plaintiff \u201cwill\n\n\n 2\n\f Case 1:26-cv-02127-RJL Document 44 Filed 08/12/26 Page 3 of 3\n\n\n\n\nenforce its trespass ordinance against individuals present on the Reservation without\n\nauthorization,\u201d including threatening the contractor with \u201cforfeiture\u201d of vehicles and\n\nother equipment and property, \u201cremoval\u201d and \u201cexclusion\u201d of individuals, and \u201ccivil\n\nmonetary penalties.\u201d Id. Plaintiff reiterated this message in a public service\n\nannouncement.2 Given that these developments not only hinder the testing but also\n\ncongressionally mandated activities, we urge the Court to conclusively deny Plaintiff\u2019s\n\nemergency motion (Dkt. #3).\n\n\nDated: August 12, 2026 Respectfully submitted,\n\n ADAM R.F. GUSTAFSON, D.C. Bar 1010952\n Principal Deputy Assistant Attorney General\n Environment and Natural Resources Division\n\n BRADLEY CRAIGMYLE\n Deputy Assistant Attorney General\n\n JUDITH B. HARVEY, D.C. Bar 1615789\n Chief, Law & Policy Section\n\n MARISSA A. PIROPATO\n Deputy Chief, Natural Resources Section\n\n\n /s/ Marissa A. Piropato\n Environment and Natural Resources Division\n 950 Pennsylvania Ave. NW\n Washington, DC 20530\n Phone: (202) 532-3182\n Marissa.Piropato@usdoj.gov\n\n Counsel for Defendants\n\n\n\n\n2\n https://www.tonation-nsn.gov/wp-content/uploads/2026/08/PSA-BORDER-WALL-\nCONTRACTORS-WARNED-NOT-TO-TRESPASS.jpg. (Attach. B.)\n\n\n 3\n\f","ocr_status":2,"date_upload":"2026-08-12T12:29:37.102102-07:00","document_number":"44","attachment_number":null,"pacer_doc_id":"045012277836","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Memorandum","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/489696764/","id":489696764,"tags":[],"absolute_url":"/docket/73493770/44/1/tohono-oodham-nation-v-mullin/","date_created":"2026-08-12T12:29:30.328739-07:00","date_modified":"2026-08-12T13:19:18.046253-07:00","sha1":"","page_count":5,"file_size":424063,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"44","attachment_number":1,"pacer_doc_id":"045012277837","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Exhibit A","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/489696765/","id":489696765,"tags":[],"absolute_url":"/docket/73493770/44/2/tohono-oodham-nation-v-mullin/","date_created":"2026-08-12T12:29:30.358802-07:00","date_modified":"2026-08-12T13:19:18.064276-07:00","sha1":"","page_count":2,"file_size":451451,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"44","attachment_number":2,"pacer_doc_id":"045012277838","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Exhibit B","acms_document_guid":""}],"date_created":"2026-08-12T12:28:08.082386-07:00","date_modified":"2026-08-27T16:53:03.250637-07:00","date_filed":"2026-08-12","time_filed":"14:31:38","entry_number":44,"recap_sequence_number":"2026-08-12.001","pacer_sequence_number":160,"description":"RESPONSE re 41 Notice by MARKWAYNE MULLIN, RODNEY SCOTT, ROSARIO VASQUEZ. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Piropato, Marissa) Modified event on 8/27/2026 (mg). (Entered: 08/12/2026)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/473864609/","id":473864609,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/73493770/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/489344485/","id":489344485,"tags":[],"absolute_url":"/docket/73493770/43/tohono-oodham-nation-v-mullin/","date_created":"2026-08-10T10:04:00.863436-07:00","date_modified":"2026-08-10T10:04:00.872843-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"43","attachment_number":null,"pacer_doc_id":"045012272142","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Transcript","acms_document_guid":""}],"date_created":"2026-08-10T10:04:00.823622-07:00","date_modified":"2026-08-12T08:49:16.235833-07:00","date_filed":"2026-08-10","time_filed":"12:34:53","entry_number":43,"recap_sequence_number":"2026-08-10.001","pacer_sequence_number":158,"description":"TRANSCRIPT OF PROCEEDINGS before Judge Richard J. Leon held on 07/22/2026; Page Numbers: 1 through 47. Date of Issuance:8/10/2026. Court Reporter/Transcriber Rebecca Monroe, email: rebecca_monroe@dcd.uscourts.gov, Transcripts may be ordered by submitting the Transcript Order FormFor the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov. Redaction Request due 8/31/2026. Redacted Transcript Deadline set for 9/10/2026. Release of Transcript Restriction set for 11/8/2026.(Monroe, Rebecca) (Entered: 08/10/2026)","tags":[]}],"entries_total":"https://www.courtlistener.com/api/rest/v4/docket-entries/?count=on&docket=73493770&page_size=40"}