That Big Fence on the Mexican Border Means Lots of Eminent Domain Cases

When President Trump spoke of his planned border fence during the presidential campaign, virtually all of the media discussion concentrated on the political or international aspects of it. But those of us who are familiar with government projects that require construction of almost anything, understood that such a project would require lots of land acquisition for the fence right of way, and that, in turn, would mean lots of eminent domain cases along the border.

Now that Trump is in office, all that is coming to pass. We recommend that you read a recent on-line article in the Houston Public Media — John Burell, Landowners Likely to Bring More Lawsuits as Trump Moves on Border Wall, February 26, 2017.

Landowners Likely To Bring More Lawsuits As Trump Moves On Border Wall

This means lots of small cases involving fractions of an acre for the fence right of way, and compensation in the low five figures in each case (a median of $12.6 thousand per case), but there is one case involving the taking of eight acres, and compensation of $1.1 million. The owner of that one is the National Conservancy — no jokes, please. Altogether, there are 320 such cases pending, but many more are expected.

The feelings among condemnees differ widely. Some resent the takings of their ancestral lands and would rather hang on to them, while others are glad that the fence will stop the stream of trespassing illegal aliens crossing the border and wending their way across their back yards as they trek north. Most of the pollos  — those sneaking across the border — may be nice folks who only seek a better life for themselves and their families, but some are not. Moreover, the coyotes, the ones who guide them the pollos across the forbidding and often dangerous desert terrain are not nice folks. They tend to be armed, some toting AK-47s.

But be that as it may, many more additional small eminent domain cases are expected to be filed by the feds, thus providong gainful employment to the local bar.

For earlier reports on this topic, notably the problems that ensue when the fence cuts off a bit of American land and leaves it on the Mexican side of the border, see Richard Marosi, L.A. Times, Fencing Off Forbidding Land, February 15, 2010, at p. AA1). For the Huffington Post’s take on the problems with these federal land acquisitions (such as undercompensation), click on http://www.huffingtonpost.com/2012/10/15/landowners-seized-border-properties_n_1966636.html

By the way, the author of this Houston Public Media article does not appear to understand that in these direct condemnation (or eminent domain) cases, the land owners do not sue the government. Rather, it’s the other way around, the government sues them by filing actions in eminent domain, and follows the dumb federal practice of purporting to sue the land (e.g., United States v. 0.6 Acres). Go figure. If you are interested in details, the Houston Public Media folks have been kind enough to include a link to some 300  such cases that have already been filed. You can peruse the list at https://docs.google.com/spreadsheets/d/1jkuxoIUetKQ_enRoO2cnww7rfs6nivd2LLAsxpUyHB0/edit#gid=1466917367

Follow up: You won’t believe this, folks, but LexisNexis on line has a Professor, no less, who claims that the feds won’t be able to build the border wall because negotiating with condemnees will take so long, and since — avers the prof — the feds will have to litigate value and pay the condemnees first, before they can build, it’ll take forever, etc., etc., etc.

Looks like the prof never heard of the Declaration of Taking Act, or of the rule that the feds need not pay first before taking the subject property. To say nothing of the cost of litigation that such landowners would have to bear while all that litigation goes on.

Second follow up: the word comes that the feds — evidently unimpressed by the professors’ views — are serving declarations of taking on the affected landowners whose properties are in the path of the fence. https://archpaper.com/2017/03/department-of-homeland-security-land-texas/