Tuesday, November 18, 2008

DHS Ignoring the Rights of Private Property Owners to Build the Border Wall

Texas RioGrande Legal Aid’s Communications Director Cynthia Martinez was invited to testify on TRLA’s work with border landowners at a hearing held by the Mexican American Legislative Caucus on November 13th. Below is the text of her statement before the committee. A copy is also available in pdf format.

Mr. Chairman and members of the Mexican American Legislative Caucus-

Thank you for the opportunity to speak here today. My name is Cynthia Martinez and I am the Communications Director for Texas RioGrande Legal Aid, also known as TRLA. TRLA is a non-profit organization that provides free legal services to low-income clients in 68 counties in Texas. We are the largest provider of legal aid in Texas and the third largest in the United States.

For more than a year now, TRLA has worked in Texas border communities where the wall is going to be constructed to educate landowners on their legal rights and fight on behalf of low-income landowners who are at risk of losing their livelihoods. Our work has focused primarily on the Rio Grande Valley and in Eagle Pass.

TRLA does not take a policy position on whether the wall should be constructed. Our focus is solely on the legal rights of border landowners and residents as the wall is being built and once it is complete.

Throughout our efforts, our work has focused on one primary belief - in the process to construct the border wall the federal government has chosen to sacrifice the basic legal rights of border landowners in the interest of meeting an arbitrary deadline.

Almost eighteen months ago it became clear that the Department of Homeland Security was developing plans for the border wall that would require private landowners to give up their land in the name of homeland security. To date, DHS has sued approximately 100 landowners in the Rio Grande Valley alone to survey their property or begin the eminent domain process.

According to their own public statement, Homeland Security anticipates suing more than 250 landowners to construct the border wall.

About a year ago, in an effort to make sure that landowners were aware of their legal rights before the process began, TRLA attorneys organized community meetings throughout the Rio Grande Valley to bring landowners together and inform them of their legal rights.

At these meetings, landowners were clear that they had several concerns. They wanted to know:

- Where the wall was going to be built
- If they could keep the government from taking their land
- If they would be compensated for losing their land or any inconveniences that occur as a result of the wall’s construction
- What a wall meant for their community and their daily life

They had questions and the government was not doing anything to give them answers. So we did our best to help. In fact, many times we brought maps and information to these meetings that the residents had never seen before.

As early as June 2007 federal officials began approaching landowners for permission to survey their land so that they could begin to plan where the wall would be constructed. They would approach these landowners with documents - only available in English - and tell them that the government would sue them if they did not agree to the survey.

Many of these landowners are Spanish - dominant and all of them have a sincere respect for our government and its laws. To be approached by a federal agent, with legal documents only available in English, and to be told that the government will sue you if you don’t sign the forms left many landowners feeling as though they had no choice.

So many of them signed these documents and did so not knowing what they were signing or what their rights were. Other landowners took the request and refused to sign or sought help from an attorney. Many of these families turned to Texas RioGrande Legal Aid for help.

At this point, TRLA has represented nine families in their border wall litigation and provided legal advice to a countless number of border landowners on their legal rights throughout this process.

While all of our clients are determined to keep fighting for their land, you’d be hard pressed to find a couple more willing to fight than Baldomero and Hilaria Muniz.

Baldomero and Hilaria Muniz are an elderly couple who live in Los Ebanos. They spent their entire lives working as migrant workers to save up enough money to buy a small plot of land, build a house, and raise their children. In their old age, they use their land to raise goats which they sell to have a source of income. Their land is literally their livelihood - and the government wants to take it.

Both the Muniz family and the family of Pamela Rivas were approached around June 2007 to sign waivers that would allow the government to survey their land. But both families decided to put up a fight. Neither family wanted to let the government survey their land and certainly neither family wanted to be forced into giving up their land for the wall’s construction. The government never even had a conversation with these families about the issue. So both families refused to sign the waiver - and they were sued.

From the beginning, their defense was simple - the government failed to negotiate a reasonable price for having access to their land - a process it is required to go through by law. Instead, without consulting with these families, the government set its own price - zero dollars. Zero dollars for the inconvenience of having to let federal officials have access to their land and possibly damage it in the surveying process.

The offer was disingenuous and disrespectful. So TRLA represented both families in appeals that took us all the way to the Fifth Circuit Court of Appeals in New Orleans. The Muniz family, with few resources, was unable to afford the trip to see our attorneys fight on their behalf.
Unfortunately, our efforts were not successful in stopping the condemnation process and both families are currently being sued by the government for possession of their land. At this time, the future of their property is unclear.

Five of our families in the Eagle Pass area have taken a proactive approach and sued DHS for failing to consult or negotiate with them before taking their property and beginning construction on the border wall. In their lawsuit, the families also pointed out that DHS did consult with wealthy, Caucasian landowners in the area and has avoided using their properties in its final construction plans. This is an allegation that many landowners and even the media have made - but that the government has not addressed.

One of our families, the family of Oscar Ceballos, fought the government’s attempt to take his land, which is located approximately two miles from the border in the Rio Grande Valley, by arguing that Congress intended the wall to be built along the border - not in the border area. We were not successful, but in his decision United States District Judge Andrew Hanen did state that “once again, the nation has placed a burden on the citizens of south Texas that is clearly disproportional to that being borne by other locales.” That statement is the only consolation Mr. Ceballos has as the government proceeds with the condemnation process. It should be noted that originally the government intended to offer Mr. Ceballos $1600 for his property. Because of his determination to exercise his legal rights, a federal appraisal has valued his property at more than $30,000.

Currently many of our families and border residents live in a cloud of uncertainty. Late last week, Homeland Security announced that it would temporarily be halting the construction of the wall in certain border communities. If media reports are true, this could leave room for a new Congress and administration to alter or even eliminate construction plans. However, at this point, this is all speculation. All we know for sure is that the federal government is continuing with its lawsuits against border landowners to condemn their land.

Other border residents have a handful of questions, but no answers. Once the wall is constructed, life for border residents will change in ways that have yet to be explored. Will their land be damaged during the wall’s construction? Will they have to travel several miles to have access to their land if their property is cut in half by the wall? Will they have to become accustomed to border patrol agents asking them if they are U.S. citizens when they are on their own property? If their neighbor’s property is protected by a wall but theirs is not, will they get help to protect their own security? If their land is taken, will they be compensated appropriately?

In a speech in February 2008 at the Kennedy School of Government, Homeland Security Secretary Michael Chertoff characterized border landowners as fighting the wall’s construction because they are concerned that the wall will spoil their view or inhibit their cattle’s ability to get to the river.

Such a characterization is wrong, naïve, and dangerous. And it is important that policymakers understand that this isn’t about being able to see sunsets or a cow’s freedom.

These families are fighting for their livelihoods and, in doing so, they are only exercising the legal rights that have been guaranteed to them by the laws of this country.

Homeland Security officials have not been silent on the issue - in the press they have made it very clear that the wall will not be finished by the end of the year as planned and that’s largely due to the fight that landowners such as our clients have waged.

As you can imagine, we have not apologized for this.

At TRLA we take our commitment to these communities very seriously and we remain dedicated to fighting alongside them as the construction of the wall proceeds.

If there is one decisive legal victory we have had in this fight it is that all the courts have agreed on one thing - these landowners have the right to question their government and fight for their property. And that’s what they’re going to continue to do, even if it comes as an inconvenience to the federal government.

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