The Border Wall vs. Property Rights: Texas’ Senators Support the Wrong Side

by Scott Nicol

To build the border wall the federal government has brought condemnation lawsuits against more than 300 Texas landowners. Homeowners, farmers, nature preserves, and municipalities all face the imminent loss of their property for a patchwork of walls that have “no discernible impact” on the overall numbers of immigrants or smugglers who cross the border, according to the Congressional Research Service. The wall is a rhetorical point used by politicians who do not represent border communities to claim that they are working to protect the homeland. For them, the real impact of the border wall is irrelevant; all that matters is the perception among voters who will never actually see it. Members of congress who do represent Texas border residents should be fighting to defend our lands and our homes, literally the homeland that the border wall is supposed to secure. Instead, Texas’ Senators have worked to fund and build the wall that today stands in Hidalgo County and is tearing through Brownsville.

Land nearest the Rio Grande has always been prized because of the rich soil and the year-round availability of water. Many families along its banks still hold title to lands that were granted to their forefathers by the King of Spain as early as the 1740’s, decades before the United States and Mexico became sovereign nations, and more than a century before the Rio Grande became their shared border. For these owners, the land is a priceless piece of their family’s history.

Eloisa Tamez’ property has been in her family since the King of Spain issued the San Pedro Carracitos Land Grant in 1763. In 2007 DHS demanded access to her property for border wall surveys, then initiated condemnation proceedings. Dr. Tamez enlisted the Center for Human Rights and Constitutional Law and initiated a class-action lawsuit alleging that DHS has refused to negotiate with landowners before condemning their property, as the law requires. She also demanded that DHS reveal its criteria for citing the border wall, which in places runs for miles through poor and/or minority communities, then ends abruptly at the property line of wealthy property owners and resort communities. David Pagan of Customs and Border Protection responded, "We do not plan to suspend work on the construction of fence in order to hold a series of additional consultation meetings." On April 15, 2009 the court ruled against Dr. Tamez’, allowing the federal government to seize her land. Within a week the border wall had been built across her property.

Last February Eva Lambert awoke to the sound of heavy equipment erecting the border wall’s steel posts on her land. In her case, either through disregard for the law or incompetence, DHS finished construction of the wall before anyone had contacted her to negotiate a price or condemn her property. Denied her day in court as well as her property, Ms. Lambert is still waiting to find out what compensation will be offered. As she told the Brownsville Herald, "In the end, the government does what it wants."

In the low-lying river delta of South Texas, the treaty that established the Rio Grande as the border prohibits construction between the levee and the river. This is because a structure immediately adjacent to the river could deflect floodwaters and shift the river’s course, resulting in a change in the international boundary. So, to comply with the treaty, the border wall is being built into, on, or behind the flood-control levee that parallels the river rather than immediately adjacent to it. This levee is located up to two miles north of the river, leaving thousands of acres of U.S. territory, much of it privately owned, behind the border wall.

The Department of Homeland Security has offered only to pay for the exact footprint of the border wall (typically, a 60-foot wide strip) as it passes through a parcel of land. In their simplistic calculations, the agency has completely issues such as the devaluation of contiguous property, problems accessing land and homes behind the wall, impacts on livelihood, and the importance of cultural heritage. Despite the range and complexity of these issues, DHS has steadfastly refused to enter into meaningful negotiations with property owners.

The Nature Conservancy’s Southmost Preserve maintains one of the last remaining Sabal Palm forests along the banks of the Rio Grande. The border wall will bisect the preserve, cutting off more than 700 acres along with an equipment barn, office, and caretaker’s residence. The property was purchased in 1999 for $2.6 million, but DHS has only offered to pay $114,000 for the wall’s footprint, a strip of land 60 feet wide and 6,000 feet long. DHS has refused to explain how they will access the property that will be behind the wall. They claim that gates will be built, but they won’t say who will get keys or under what circumstances Conservancy staff will be able to access the property. Like Dr. Tamez, the Nature Conservancy is attempting to use the courts to save their land.

Other homes, businesses, and properties that are behind the levees will be walled off entirely, trapped between the wall and the Rio Grande. DHS has refused to grant any compensation whatsoever for properties left on the “Mexican” side of the wall. Indeed, because DHS is focused solely on the wall’s exact footprint, they have failed to even make contact with some of the landowners with property behind the wall.

The Sabal Palm Audubon Center preserves another 557 acres of Sabal Palm forest, which will also be behind the border wall. Because the wall will be built a few feet to the north of their property line, DHS has not offered Audubon any compensation whatsoever. Both Audubon and the Nature Conservancy have said that restricted access for their employees may force them to cut their operations. There is also the concern that uncertain access for emergency personnel may make it impossible to purchase the insurance that allows busloads of local school children to visit the center. With construction of the border wall imminent, Audubon announced that on May 15, 2009 they will close to the public for at least the next 6 months.

The Department of Homeland Security has repeatedly claimed that they have consulted with landowners and local officials regarding border wall construction. But when the Texas Border Coalition repeatedly invited DHS and Customs and Border Protection officials to “walk the line” and see the impacts that the border wall will have on specific communities, they responded that they would only do so if the owners of the property that they would be crossing were kept away. Apparently, their preferred method of consultation is a condemnation proceeding.

In the face of these assaults on property rights by the federal government, one would expect Texas’ conservative Senators to stand up for their constituents. Private property and small government are central tenets of both of their stated philosophies. In July of 2007 Senator Cornyn told reporters, "I assure you there will be local consultation. There will not be ... unilateral actions on the part of the Department of Homeland Security without local input."

Senator Hutchison did add an amendment to the 2008 Omnibus Appropriations Bill that gave the Secretary of Homeland Security the flexibility to decide where walls should be built, as well as to spare places where walls do not make sense. The Homeland Security Secretary was also required to, “consult with the Secretary of Interior, the Secretary of Agriculture, States, local governments, Indian tribes, and property owners in the United States to minimize the impact on the environment, culture, commerce, and quality of life for the communities and residents located near the sites at which such fencing is to be constructed.”

Following howls of outrage from right wing pundits and politicians that she had “gutted” the Secure Fence Act, Hutchison backed away from her amendment. She has yet to confront DHS on its refusal to consult with property owners, as epitomized by its demand that landowners be kept away from any DHS employees who walk the line through their property. So long as she is afraid to fight on behalf of Texas landowners, the amendment that she authored is just more empty words.

Senator Cornyn’s statements assuring that there will be local consultation have also proved to be empty. Like Senator Hutchison, he has made no concrete effort to stand up for border residents. Instead, Cornyn sponsored the “Emergency Border Security Funding Act of 2007” which called for 700 linear miles of border wall and 300 miles of vehicle barriers along the US – Mexico border, and provided $3 billion dollars to build it. Cornyn’s bill went nowhere, but even without it DHS has received $3.1 billion to build the border wall.

On April 2, 2009, the one year anniversary of former Homeland Security Secretary Chertoff’s border-wide waiver that swept aside 36 federal laws, both of Texas’ Senators voted to add a motion to the Omnibus Appropriations bill that read, “To provide for a point of order against any appropriations bill that fails [to] fully fund the construction of the Southwest border fence.” The vote fell along party lines and failed, but in voting once again in favor of the border wall Hutchison and Cornyn chose party loyalty over the interests of their constituents.

This should not come as a surprise. When Cornyn looks back at the last election, he will look to the north Dallas suburbs as important to his win, not 540 miles south of Dallas to Brownsville. When Hutchison thinks about her upcoming bid to unseat Governor Perry, she will be counting on votes in Sugarland, not El Paso. Though they claim to represent the entire state, so long as they see border communities as politically irrelevant they will not work on our behalf.

The fact that their neglect is not surprising does not make it acceptable. Our Senators, as well as our U.S. Representatives and our President, were put in office to work for all of us. They can not be allowed to play favorites. When they do we need to speak up.

Some border representatives are working to defend border communities. Representative Grijalva of Arizona has authored HR 2076, The Border Security and Responsibility Act. It would require that the Department of Homeland Security work with border communities and landowners in developing security measures, rather than treat them as the enemy. DHS would also have to obey all of our nation’s laws, instead of sweeping away those which are seen as an inconvenience. Cosponsoring this bill in the House, or introducing a companion in the Senate, would be a concrete demonstration of support for border residents.

With this bill pending and walls under construction, it is critical that our members of Congress hear from their constituents right now. Urge them to support the Border Security and Responsibility Act. Demand that they work to stop further walls from tearing through the borderlands. Though only around 50 miles of border wall remain to be built it is not too late to stop it. If you lived in a home, or owned a farm, or worked at a wildlife refuge that is in the path of one of those miles, you would see every last mile as important.

So long as we sit quietly by and watch the border wall go up, we are irrelevant in the eyes of Congress. If we do not make our voices heard, and make our elected officials listen, mile upon mile of wall will be built. And while we can rail against the politicians who sacrifice our home for political gain, if we are silent we own a portion of the blame.

The Border Wall Violates Human Rights

On October 22, the two-year anniversary of President Bush's signing ceremony for the Secure Fence Act, the Organization for American States convened a hearing into allegations that the border wall currently under construction violates human rights. A multi-disciplinary working group of faculty and students affiliated with the Rapoport Center for Human Rights and Justice at The University of Texas at Austin submitted a series of briefing papers to the Inter-American Commission on Human Rights, an inter-governmental body of the Organization of American States which provide evidence of human rights violations. Their report is available here:
http://www.utexas.edu/law/academics/centers/humanrights/publications/




The situation on the U.S. – Mexico border is one in which fundamental human rights, environmental concerns, and the rule of law have been set aside to facilitate the construction of border walls which have, at most, symbolic value. The border wall's construction coincides with a rise in misinformation regarding the situation at the border, as well as the impacts and effectiveness of the border wall. We hope that the hearings that the Inter-American Commission on Human Rights holds will help to bring clarity to the situation, and will spur the United States to adopt rational border policies that promote human rights and reverse policies which currently violate human rights.


Border Wall construction in south Texas


The No Border Wall Coalition is deeply troubled by the headlong rush to build walls along the United States’ southern border without meaningful consideration of the walls’ negative impacts on border communities and the environment, and without evidence that such walls will enhance national security or curtail illegal immigration and smuggling. The border wall is a monumental project that will severely impact the entire 1,969-mile southern border and the 11 million US citizens who live along it, as well as those who live in Mexican cities and communities along the border.

Building the border wall in urban areas is a priority for the Department of Homeland Security because they say that in such places it is “easier for an alien…to conceal themselves in a home or business.” In Texas border communities, the edge of the Rio Grande is already crowded with many homes and businesses that will have to be destroyed for a border wall to be erected. Like countless other human societies throughout history, these communities were founded on the banks of a river. In places like Laredo, Roma, and Brownsville, the river is still the heart of the community, its status as an international border notwithstanding. You cannot cut through the heart of a community without causing grave harm.

Border communities will be severely impacted by the border wall. In South Texas, the river that defines the border is also the reason that settlers originally came to the area. Land grants that were parceled out by the King of Spain in the 1760’s are in many cases still held by their original owners’ descendants. These grants included access to the Rio Grande, recognizing that without its water the area would be uninhabitable, and the river remains the source of water for irrigation and municipal use. If farmers along the Rio Grande can not access the river or the intake pumps that bring its water to their fields they will lose their farms.


Border Wall construction in Granjeno, Texas
Approximately one-quarter of the population in the counties along the border live at or below the poverty line. This is more than double the national poverty rate. In addition, most of the counties in the border region have majority-minority populations. Executive order 12898 (Federal Action to Address Environmental Justice [EJ] in Minority Populations and Low-Income Populations), provides that “each Federal agency must identify and address, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations in the U.S.” The Department of Homeland Security has ignored its responsibility to address the Environmental Justice issues raised by the border wall.

The Lower Rio Grande Valley has double the poverty rate of rest of the state of Texas (In 2000, 35.7% vs. 15.4%). In many cases landowners facing condemnation proceedings cannot afford legal representation, so they decide to cut their losses rather than fight for their legal rights. Texas Rio Grande Legal Aid has stepped in to represent many low income property owners, but their resources are limited. The Center for Human Rights and Constitutional Law is representing other residents in suits against DHS challenging eminent domain proceedings.

Despite the mandate of the Omnibus Spending Bill of 2007, which requires meaningful consultation with local stakeholders before walls are built, the Department of Homeland Security has ignored the comments and concerns of those of us who will be directly impacted by the border wall. Meetings have been held in secret and are closed to the general public. All maps that have been released are claimed to be preliminary, despite the fact that DHS has been contacting landowners to gain access to private property and construction has already begun. DHS has gone so far as to tell members of the public and press that releasing information would endanger national security, because then smugglers and terrorists would know their plans. This is ludicrous, as once an 18 foot wall is built its location will hardly be a secret.

The most glaring abuse of human rights that is directly connected to the border wall is the fact that the wall has caused thousands of deaths. In 2006 the U.S. Government Accountability Office (GAO) looked at the border wall’s human toll since the erection of the first California sections in the mid 1990s. They found that, though the number of border-crossing deaths had been declining in the 1980s and early 1990s,

“Since 1995, the number of border-crossing deaths increased and by 2005 had more than doubled. […] This increase in deaths occurred despite the fact that, according to published estimates, there was not a corresponding increase in the number of illegal entries. Further, GAO’s analysis also shows that more than three-fourths of the doubling in deaths along the southwest border since 1995 can be attributed to increases in deaths occurring in the Arizona desert.”



Migrant trail through the Arizona desert


This increase in deaths occurred because the border walls did not stop people from entering the United States, they only rerouted them. Confronted with an 18 foot high wall near San Diego, desperate immigrants did not turn around and go home. They went around it. Rather than crossing in safer urban areas, thousands instead came in through the desert. As a result, more than 5,000 have died from dehydration and exposure, and it is estimated that thousands of bodies lie undiscovered.

The No Border Wall Coalition would like to thank the Inter-American Commission on Human Rights for holding hearings on the abuses of human rights that are associated with the construction of the border wall. The fact that the United States has avoided a similar examination is shameful. We look forward to reading your conclusions regarding the situation on the border, and hope that they will be read by U.S. decision makers as well. So long as the discussion regarding the border and the wall that is being erected along it is dominated by demagogues, rather than a careful examination of the facts, there is little hope of improvement.

COURT RULES SECRETARY CHERTOFF VIOLATING THE LAW IN BUILDING BORDER WALL

The Center for Human Rights and Constitutional Law released the following statement regarding their lawsuit defending the private property rights of border resident Eloisa Tamez:

In a 32-page decision issued today, a federal judge in Brownsville ruled that Secretary of Homeland Security Michael Chertoff violated federal law in his rush to build several hundred miles of border fencing in Southern Texas.

In a lawsuit filed by Secretary Chertoff in January against Dr. Eloisa Tamez, the Department of Homeland Security requested an expedited court order condemning Dr. Tamez's land so it could immediately commence a survey for the planned border fence. Dr. Tamez is an indigenous land-grant property owner in South Texas who refused to voluntarily give the U.S. Government a six month right to enter her land to survey for the border wall.

About twenty cases filed by Secretary Chertoff to condemn land along the border have been consolidated before federal judge Andrew Hanen in Brownsville, Texas, and delayed pending the outcome of Dr. Tamez's case.

In response to the government's suit, the court held a lengthy hearing on February 7 at which Dr. Tamez's lawyers with the Los Angeles-based Center for Human Rights and Constitutional Law argued that Secretary Chertoff had violated federal law by failing to negotiate with Dr. Tamez to arrive at a "fixed price" for the six month access it sought before suing to condemn the land to allow the survey to proceed.

In the decision issued today, judge Hanen ruled that "Dr. Tamez correctly asserts that negotiations are a prerequisite to the exercise of the power of eminent domain" under federal law. The court further concluded that Secretary Chertoff had presented "insufficient evidence ... as to whether there has been bona fide efforts to negotiate with Dr. Tamez." As it has done for over a month now, the court refused to sign an expedited order condemning Dr. Tamez's land so that the Department of Homeland Security can start a survey for its planned border wall.

The court also decided that a clause in the 2008 Appropriations Act for the Department of Homeland Security enacted in December 2007 that requires the Secretary of Homeland Security to consult with property owners to minimize the adverse impacts of any border activity is not a defense to the temporary access the Department seeks to conduct a survey, "but that it still may be a defense to later activity by the Government" when it seeks to enter her property: "Given the mandatory language of the consultation clause, that 'the Secretary of Homeland Security shall consult . . .,' this Court may find it proper to require compliance with the consultation clause, when appropriate, as a condition prior to entry onto the property after the taking has been completed ... Dr. Tamez's objections concerning the failure of the Government to abide by the consultation clause are denied without prejudice to her ability to reassert those objections at a later point in time" if the Government actually seeks to enter her property.

The court rejected Dr. Tamez's argument that if she and the Department of Homeland Security are unable after negotiations to agree on a fixed price for the right of temporary access to her land, that the government may only proceed to condemn her land under a federal law that grants her a right to a jury trial. The decision states that if the parties are unable to negotiate a fixed price for the interest the Government seeks in Dr. Tamez's land, then the Department of Homeland Security may seek to condemn the land under an expedited procedure known as the Declaration of Taking Act.

The court ordered the Government agents "to either partake in negotiations and/or provide this Court with any relevant evidence they may have concerning the existence of bona fide efforts to negotiate" by March 21.

In a statement issued through her lawyers, Dr. Tamez stated: "The court's order issued today vindicates my position that Secretary Chertoff has proceeded to seize my land and the land of other property owners in violation of federal law. On the other hand I am disappointed that the court ruled that Secretary Chertoff may use the expedited condemnation procedures after he negotiates with property owners to arrive at a fixed price for the use he seeks of our property. I am also pleased that the court appears to agree that property owners have the right to be consulted before Government agents actually enter our land. Under federal law the consultation we will insist upon must seek to minimize the adverse impact of any entry onto our lands on the environment and our cultural and economic rights. I intend to continue fighting this case to insure that Secretary Chertoff does not violate the law while rushing forward to build an ill-conceived border fence that will in many ways destroy border communities."

Peter Schey, President of the Center for Human Rights and Constitutional Law, and Dr. Tamez's lead counsel, responded to the ruling: "We will carefully study this decision to see how it may be used by other border property owners to protect their rights to the fullest extent permitted by law. Like border property owners, Secretary Chertoff is also bound by applicable laws and may not run roughshod over property owners' rights in his rush to complete an ill-conceived border wall. The proposed border wall will do little to stop undocumented migration but it will significantly increase deaths and injuries by diverting migrants to more dangerous border crossings. Regardless of how ill-advised the proposed border wall is, it certainly may not be built on a foundation of illegal and lawless conduct by the Department of Homeland Security. We welcome the court-ordered negotiations with the Government to explore a fair price for the property access that Secretary Chertoff seeks in Dr. Tamez's land. Once those discussions are concluded, we will demand that consultation take place with Dr. Tamez before any federal agents enter her land. By law these consultations must be aimed at minimizing any adverse impact of entry onto her land on the environment and on her economic and cultural rights. We will certainly also seek the same protections for all similarly situated property owners along the US-Mexico border."

Arnoldo Garcia, Senior Policy Associate with the National Network for Immigrant and Refugee Rights that has been supporting Dr. Tamez's lawsuit said: "It is time for Congress to reconsider building a Berlin-type militarized wall along the US-Mexico border. The more the border area is militarized and criminalized, the more migrants die trying to come to the US in search of little more than a better life and the ability to join or support their families. This country urgently needs rational and humane immigration reform, not walls that kill people. When Congress musters the courage to enact immigration reform, the need for a border wall will all but disappear. What good does it do to spend hundreds of millions of dollars on a border wall when half the undocumented immigrants enter the United States with non-immigrant visas, not through the US-Mexico border. Virtually all migration experts agree that we need to promptly legalize the undocumented population, issue a sufficient number of visas in the future to meet the known demand, and invest in sustainable development in the major sending communities abroad, not turn the United States into a fort surrounded by another Berlin wall."

The court's Order is available at http://www.nnirr. org/resources/ docs/EloisaTamez Case3-7-08- Order.pdf

Contacts:Peter Schey, Center for Human Rights and Constitutional Law, lead attorney for Dr. Tamez 323 251-3223Arnoldo Garcia, National Network for Immigrant and Refugee Rights, 510 928-0685Margo Tamez, daughter of Dr. Eloisa Tamez, Co-Founder, Lipan Apache (El Calaboz) Women Community Defense 509-595-4445