Hitting a Wall at the Border: Eminent Domain Fights Could Slow Construction of Trump’s Dream


The stories began to trickle in even before January 20, 2017. Yvette Salinas received her “Declaration of Taking” a week before Donald Trump’s inauguration, reports the Texas Observer.

President Trump may have signed an executive order in January to begin work on the border wall, but he wasn’t the first to come up with the idea, and this isn’t the first time landowners at the border have had to fight a fence. A third of the 2,000-mile border already has a barrier, thanks to the President George W. Bush’s Secure Fence Act of 2006. But then, The Atlantic reports, the administration zeroed in on states where most of the relevant land belonged to the government.

But that wasn’t the case for all the land in question, and a history of drawn-out court cases along the border doesn’t bode well for a swift completion of Trump’s “big, beautiful wall.”

The litigation that resulted from nongovernment-owned land was anything but smooth sailing. CNN conducted a review of 442 related lawsuits. 678 property owners were involved, and about one in four walked away with more money after challenging the government’s initial offer. But as of April 2017, 93 of the cases were still open. By that time, two strong patterns had emerged: Property owners almost always lost their land, and the battle was long and hard.

NPR also conducted its own review of 300 cases in the court of U.S. District Judge Andrew Hanen in Brownsville, Texas. Hanen sees so many of these cases that he reportedly has given himself the nickname of “the fence judge.”

NPR’s numbers largely match the pattern found by CNN. As of February 2017, about two-thirds of the cases had been resolved, and most of them lasted about three and a half years. These aren’t arguments over large swathes of Texas land; most cases involved under an acre. Consider, for example, the highly publicized case of United States of America v. 0.26 Acres of Land, More or Less et al, involving 82-year-old Eloisa Garcia Tamez. According to the Texas Civil Rights Project, Tamez is a member of the Lipan Apache tribe, and her family has owned land near Brownsville, Texas, for over five generations—before Texas was even a state. After seven years of legal battles, the government wrote Tamez a check for $56,000. However, NPR reports the median settlement for the reviewed cases in Hanen’s court works out to more like $12,600.

But Trump appears to have anticipated the long legal road ahead—in his 2018 Budget Blueprint, he called for “the addition of 20 attorneys to pursue Federal efforts to obtain the land and holdings necessary to secure the Southwest border and another 20 attorneys and support staff for immigration litigation assistance.”

Just how many potential cases are we talking about here? In April 2017, the Texas Civil Rights Project submitted a testimony to the U.S. Senate Committee on Homeland Security & Governmental Affairs for a hearing on planning the border wall. The testimony notes that 200 parcels of privately owned land lie along the border in El Paso county alone. In the Rio Grande Valley, there are nearly 300.

So, what happens after these landowners receive their “Declaration of Taking”?

According to a Texas A&M whitepaper called “A Survey of Eminent Domain Law in Texas and the Nation,” the Texas constitution states, “No person’s property shall be taken…for a public use without adequate compensation . . . and only if the taking is for the State . . . or the public at large; or an entity granted the power of eminent domain under law.” In addition, property can be taken for “public use,” which the Texas Constitution defines as the “ownership, use, and enjoyment of the property,” as determined by the government.

But, of course, the question is what compensation is considered “adequate,” and what, specifically, counts as “public use.”  

Many legal scholars agree it’s nearly futile to try to contest the taking itself—the battle usually becomes a question of how much money property owners will receive. With the hundreds of cases in Hanen’s court that NPR analyzed, payments varied widely.  

While United States of America v. 6.09 Acres of Land, more or less, situated in Cameron County , Texas et al may have ended with whopping $4,995,670.14 settlement after three years in court, and the defendants in United States of America v. 8.31 Acres of Land, situated in Cameron County, State of Texas et al walked away with over $1 million, those cases were on the high end of payouts.

On the low end, the case of United States of America v. 0.04 of Acres of Land, More or Less et al took 4.5 years and ended with a $1,000.00 payment. United States of America v. 0.191 Acres Of Land, more or less, situated in Starr County, State Of Texas et al dragged through the courts for eight years and wrapped with a $1,300.00 settlement.

And what counts as “public use”? Nearly everything, thanks to a 2005 Supreme Court case called Kelo v. City of New London. The Court ruled most public benefits count as public use under state and federal constitutions, “… including even transferring the condemned property to a new private owner who might provide ‘economic development’ for the community,” according to a Washington Post analysis.

Would Trump’s border wall pass muster, then?

“In these border cases, the government surely will argue that they need to take the land for national security purposes, so that’s a difficult argument to counter,” Efrén Olivares, the racial and economic justice director at the Texas Civil Rights Project, told The Atlantic.

There’s no shortage of wrinkles in the plan, though. To add another complication, some of the property along the border is owned by Native American tribes. “Battles over tribal sovereignty and property rights often raise unusually complex questions,” notes Ilya Somin in an analysis for the Washington Post. In Arizona, the Tohono O’odham Nation, whose lands stretch 75 miles along the border, has gone on record as opposing the wall. They’re not alone: The Kumeyaay in California, the Kickapoo in Texas, and the Cocopah in Arizona have also gathered to discuss options for opposing the wall, The Independent reports.   

With these hurdles combined, what does the road ahead look like for the wall? Take it from Judge Hanen, who told NPR: “What I thought was, ‘Oh, this is going to be a lot more work for us’ … It’s gonna be a lot of headache. The people in South Texas, there are a lot of hard feelings about the wall.”


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