Posted on 03/16/2008 9:54:50 AM PDT by kingattax
McALLEN — South Texas landowners fighting border fence surveys have gained traction in court and could keep the federal government from meeting Congress' demand for 670 miles of Mexican border fencing by the end of the year.
One case has already held up dozens of others for more than a month. Its outcome could mean further delays for 38 more cases scheduled for hearings this week.
The Justice Department has sued more than 50 property owners in Texas this year — a total of 75 along the whole U.S.-Mexico border — after the owners refused to allow workers onto their property for preliminary work such as surveys.
No Texas judge has ruled in favor of the landowners, but a recent ruling from U.S. District Judge Andrew Hanen ordered the government to first try to negotiate the price of access with landowners.
The Department of Homeland Security has won access in 35 of those cases, according to U.S. Customs and Border Protection. Most of the nearly 500 property owners in the fence's path gave voluntary access to their land and as of Feb. 21, 303 miles of fencing had been built.
Communities along the Rio Grande in South Texas have fought hardest. They fear being cut off from the river and agricultural lands and bristle at the imposition of a plan hatched in Washington, D.C.
Earlier this month, Richard Stana of the Government Accountability Office testified to a House subcommittee that "keeping on schedule will be challenging because of ...difficulties in acquiring rights to border lands" among other factors.
Barry Morrissey, a U.S. Customs and Border Protection spokesman in Washington, D.C., said last week that while he cannot predict the future, "we remain optimistic that we can stay on schedule."
Hanen, a Bush appointee, has slowed the government considerably from its preferred pace. He has repeatedly denied government motions for immediate access and instead held hearings for property owners to voice their concerns before ultimately siding with the government.
Hanen's more deliberate approach came in stark contrast to U.S. District Judge Alia Moses Ludlum, who in January ordered the small town of Eagle Pass to surrender 233 acres of public land to the government before the city could even muster a response.
On March 7, in a 32-page ruling produced after a month of deliberation, Hanen gave the federal government two weeks to prove it had made a bona fide effort to negotiate a price for temporary access to Cameron County landowner Eloisa Tamez's property.
"I don't consider...that they've negotiated with me when all they've done is contact me to sign a waiver," said Tamez, director of the nursing program at the University of Texas at Brownsville and Texas Southmost College. The university, which also lies in the fence's path, is scheduled to appear before Hanen Wednesday in Brownsville for its own hearing.
The federal government offered $100 Tuesday to Tamez through her attorney, Peter Schey, president of the Los Angeles-based Center for Human Rights and Constitutional Law. For that, the government would have gotten six months of access to Tamez's one acre, a remaining piece of a Spanish land grant to her family in El Calaboz.
But Schey said they will not agree upon a price until the government defines access. Will it be unintrusive surveying or will a house on the property have to be torn down or moved?
Lawyers scheduled to appear before Hanen this week in McAllen and Brownsville said they have studied the Tamez ruling closely and are optimistic it will change the process.
"I'm anticipating that the (Tamez) standard is going to be the universal standard and (Hanen) will apply it to all the cases," said G. Allen Ramirez, attorney for the Rio Grande City Consolidated Independent School District. The district sits on a 132-acre campus that extends to the Rio Grande and the fence is likely to cut through its property.
Ramirez said there were no meaningful negotiations with the government before it announced its plans to seize the land by eminent domain.
Daniel Rodriguez, a law professor at the University of Texas, said that while Hanen can urge the government to negotiate a price, it could be vulnerable under appeal.
"That's pretty much untethered from what's in the eminent domain clause," Rodriguez said.
Schey wants the government to negotiate with even those property owners who voluntarily signed waivers because they did not know they could negotiate.
Schey filed a countersuit on behalf of Tamez and is seeking class action status for all affected property owners.
"In order for this wall not to be built on a foundation of illegality and lawlessness," property owners must have a chance to take back their waivers, Schey said. "They've been hoodwinked."
feds should use eminent domain starting at east / west border area and march through, do the surveys and build the moat or fence. national security trumps cattle ranchers delay tactics.
Someone suggested earlier that the government simply build the wall so that these people are side of the fence that faces Mexico. If these people enjoy the company of illegal aliens coming across their property every night, well have at it then.
The article doesn’t say but I assume they are proceeding with survey work on all the properties they have gotten access for. Legal proceedings can keep this tied up in courts for a long time.
The Tamez property is only one acre out of three the lady owns. Others have larger amounts of property some of which will be between the proposed fence and the Rio Grande.
What the hell is eminent domain good for if not cases like this!!??
I would very much like to hear from someone with local knowledge of the issue about what’s actually going on here.
Most “landowners” I have heard from have been begging for a fence for years. Are the “landowners” in question “colonia” residents who make their living from smuggling? Have they been bribed by the “immigrant’s rights” groups to lend their names to these cases? Inquiring minds want to know.
Don’t this come full circle to THE LAWYERS, again?
Our national security in almost every way is being compromised by the attorneys at large.
A nation of laws is being doomed by the same legal system.
“They fear being cut off from the river “
Water is gold to a farmer, no doubt about it...
I agree, go around them, make them part of Mejico. The Government can snatch up land to build condos and casinos but not for our nations security.
I'm sure all those that preach imminent domain will gladly donate part of their land as compensation.
“...Tamez, director of the nursing program at the University of Texas at Brownsville and Texas Southmost College. The university, which also lies in the fence’s path, is scheduled to appear before Hanen Wednesday in Brownsville for its own hearing.
The federal government offered $100 Tuesday to Tamez through her attorney, Peter Schey, president of the Los Angeles-based Center for Human Rights and Constitutional Law. For that, the government would have gotten six months of access to Tamez’s one acre, a remaining piece of a Spanish land grant to her family in El Calaboz.”
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No mystery about this Tamez woman, God knows. A lefty academic AND a tejano aristocrat. Just getting revenge for the Alamo...
Let us not deceive ourselves, this is the Dubya’s administration taking advantage of every opportunity to footdrag.
If gaining control of the border was as important to El Jorge as putting Harriet Myers on the high court, this little problem would be steamrolled.
I hope these are the landowners who get most of the yucky garbage left behind by the illegal aliens...
After all, with W in office, Lettuce-Head Chertoff, heading the DHS, and either one of the three running for POTUS sitting in the Oval Office next year; coupled with a RAT controlled Congress, there is about as much chance that a fence will built as there is of it being (here in Burlington, VT) 70 and Sunny tomorrow.
I think this is what is happening.... This article isn't clear but the judge ruled that the gov't must make an effort to reach an agreement with the clients before they can exercise rights under the 'Taking Act'. The following article gives a better explanation of the ruling. These eminent domain proceedings can become bogged down in the courts for some time if any of the owners choose to exercise that right.
Court: DHS, landowners must negotiate before land seizure
March 7, 2008 - 10:54PM
BROWNSVILLE - After a one-month deliberation, U.S. District Judge Andrew S. Hanen has issued the most significant decision in the border fence's short judicial history.
In a case against Eloisa Tamez, who owns property along the barrier's proposed path in El Calaboz, Hanen found that the federal government is authorized by the federal Declaration of Taking Act to condemn Tamez's land. But according to the ruling, negotiations must take place between the landowner and the U.S. Department of Homeland Security before property is seized.
Immediately after the decision was filed in Tamez's case, 25 previously pending cases - pertaining to land in Cameron, Hidalgo and Starr counties - were scheduled for proceedings in Hanen's Brownsville court on March 17 and 19, making him a critical actor in the border fence's construction.
Among the defendants in the next batch of cases are the Texas Southmost College District and the Rio Grande City school district.
At a Feb. 7 hearing, Tamez's lawyer, Peter Schey, of the Los Angeles-based Center for Human Rights and Constitutional Law, argued that Homeland Security Secretary Michael Chertoff had violated federal law by failing to negotiate with her over the value of her property before filing a land condemnation lawsuit.
Hanen ruled in a decision issued late Friday that "Dr. Tamez correctly asserts that negotiations are a prerequisite to the exercise of the power of eminent domain." The ruling's conclusion also states, "There is contradictory and insufficient evidence before this court as to whether there has been bona fide efforts to negotiate with Dr. Tamez."
"We want to see the Constitution working," Tamez said Friday. "We want to see justice working. And it looks like that is what is happening."
It is unclear what form the court-ordered negotiation will take. The ruling states only that the government and Tamez, a nursing professor at the University of Texas-Brownsville/Texas Southmost College, must "either partake in negotiations and/or provide this court with any relevant evidence they have concerning the existence of bona fide efforts to negotiate" by March 21.
If the parties do not agree upon a fixed price for the property in question, Tamez's land can be condemned under the Declaration of Taking Act.
"We welcome the court-ordered negotiations with the government, and once those are concluded we will demand that consultation take place with Dr. Tamez before any federal agents enter her land," Schey said.
He expects the same negotiations will be ordered in similar border fence lawsuits.
"The reassignment of cases to Hanen avoids the potential for decisions with different interpretations of the law," he said. "If (Hanen) believes that argument we made is right, he will apply it in the other cases."
For now, the court has refused to sign an expedited order allowing DHS to begin its survey of Tamez's land - a preliminary step in the border fence's construction.
Last week, a U.S. Government Accountability Office report claimed current litigation in South Texas might cause DHS to miss its December 2008 deadline for completing construction of 370 miles of fencing.
"Meeting deadlines has been difficult because of various factors including difficulties in acquiring rights to border lands," the report stated.
Homeland Security's plans will be stymied until at least March 22, when the court is due to issue its ruling on the outcome of negotiations between Tamez and the federal government.
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