Border Residents Kept in the Dark about New Border Walls

by Scott Nicol

Four members of the Senate’s “Gang of Eight,” the group charged with crafting comprehensive immigration reform legislation, recently paid a visit to the border wall that separates Nogales, Arizona from Nogales, Sonora.

The trip was little more than a photo-op.  The senators did not meet with locals or hear from others who live on the border, who experience border security daily and will be directly impacted by any border security measures in the coming bill.  But their pilgrimage to the wall did send a message that their bill is likely to be heavy on enforcement, possibly including hundreds of miles of new border walls.

Senator McCain (R-AZ) led the tour, and he chose a striking location to give Senator Schumer (D-NY) his first glimpse of the border wall. 

Maybe he just wanted to show off the nearby section of wall that he used as a backdrop for his “Complete the Danged Fence” campaign ad. 

 

It is a safe bet that he did not take his colleagues to the spot, a few hundred yards from where they posed for the press, where last October a Border Patrol agent reached through the wall to shoot an unarmed teenager in Mexico 11 times in the back.  He probably also failed to point out the high water mark left on Mexican buildings when, in 2008, the Nogales border wall dammed floodwaters, causing millions of dollars in property damage and the drowning of two men.
 

Of course those events don’t fit the simple narrative of McCain’s “perfect plan” for border security that he outlined in his TV ad.  Better to stare into the camera and ignore inconvenient facts, then and now.

Senator Schumer likely sees more “danged fence” as the cost of immigration reform, the burden that border communities will have to bear to bring undocumented immigrants out of the shadows.  That was also the idea in 2006, when the Congressional push for immigration reform fell apart and all we were left with was the Secure Fence Act and hundreds of miles of border wall.

As the “Gang of Eight” has been horse-trading behind closed doors Customs and Border Protection has been quietly laying the groundwork for the last of the Secure Fence Act’s walls to go up in Roma, Rio Grande City, and Los Ebanos, along with neighboring farms and the Lower Rio Grande Valley National Wildlife Refuge.

Customs and Border Protection wants to build these walls in the floodplain, but over the years the International Boundary and Water Commission repeatedly rejected them, citing “substantial increases in water surface elevations and deflections of flow at several points of all three projects.”  Were the Rio Grande to flood after a hurricane or tropical depression, as it did in 2010, walls in the floodplain would deflect water into Mexican cities like Ciudad Aleman, and would stop water from draining out of communities such as Rio Grande City. 

 

Last year, after sustained pressure from Customs and Border Protection, the US section of the International Boundary and Water Commission reversed its decision, rejecting the Mexican section’s objections and allowing these dangerous walls to go forward.  They now officially accept the claim that the border wall will allow flood water to pass harmlessly through, even though in 2008 they forced Customs and Border Protection to build walls in Cameron County of the exact same design north of the levees so that they would be out of the floodplain. 

Homes and businesses, farms and wildlife refuges, could be washed away or inundated by floodwaters as a direct result of these walls. 

Customs and Border Protection says that everything will be fine.  Of course they also said that they would pay to mitigate the damage that previous wall construction inflicted upon the Lower Rio Grande Valley National Wildlife refuge, but after years of promises not a penny has been provided.

Just like the “Gang of Eight” on their trip to Nogales, Customs and Border Protection has made no attempt to talk to residents or local officials in the Texas communities that the new walls will tear through. 

I contacted Customs and Border Protection last week and asked for an update regarding the Starr county walls.  Daniel Tirado, with the RGV Sector Public Affairs Office, responded that, "the Office of Border Patrol identified these segments as highest operational priorities in Texas. Though construction of these segments has been delayed, Border Patrol’s requirement remains.”

The assertion that these walls, or any border walls for that matter, are a high operational priority is absurd.  Customs and Border Protection knows better than to think that border walls stop anyone. 

While the Senators were doing their press junket in Nogales they watched as a woman laid a ladder against the 18-foot wall and quickly climbed over.  Senator McCain even tweeted about it as it happened.
 

Visiting Arizona last summer I easily climbed the border wall in the San Pedro Riparian National Conservation Area.  I was wearing sandals and didn’t have a ladder, but it only took a few seconds to reach the top.  The San Pedro wall is identical to the ones planned for Roma, Rio Grande City, and Los Ebanos.
 

These new walls will go up in Representative Cuellar’s district, and his silence regarding them has been even more striking, and surprising, than Customs and Border Protection’s.  He has not held any town hall meetings to get feedback from, or provide information to, effected communities, and he has not publicly criticized Customs and Border Protection’s plans or their refusal to speak with local residents.

When I asked his office if he had taken any action on behalf of his constituents, he responded,

“I initiated a formal inquiry with CBP as a follow up and update on the status of the proposed fence. CBP has advised that there are no plans for building additional fences in FY 2013 due to the lack of funding.”

Customs and Border Protection also told me that, “Construction activities will commence at such time as funds become available.”

Which sounds good.  Until Congress provides funds for border walls maybe residents can relax.  One might expect that with the sequester gutting the budgets of federal agencies and forcing furloughs from the Environmental Protection Agency to air traffic controllers money for border walls won’t come any time soon.

But tucked into the spending bill that Congress just passed to keep the government running is a provision that says, 

“For expenses for border security fencing, infrastructure, and technology, $324,099,000, to remain available until September 30, 2015.”

Existing border walls are very expensive to maintain, so not all of that money is available to build new ones.  But Customs and Border Protection condemned the land and bought the steel for these walls years ago.  All that is left is to hire the crews, gas up the bulldozers, and start tearing up the land.

And if the “Gang of Eight” includes hundreds of miles of new border walls in comprehensive immigration reform, instead of passing a clean bill that focuses strictly on immigration instead of multi-million dollar handouts to government contractors, the rest of the border landowners and wildlife refuge tracts in Congressman Cuellar’s district will likely suffer the same fate as Roma, Rio Grande City, and Los Ebanos.

IBWC Approves New Border Walls Despite Flood Danger

By Scott Nicol
The U.S. half of the International Boundary and Water Commission (IBWC) has finally caved under pressure from Customs and Border Protection (CBP) and approved border walls in the Rio Grande floodplain adjacent to Roma, Rio Grande City, and Los Ebanos.    

Customs and Border Protection maps of the three new Rio Grande border wall sections

These three border wall sections, totaling 14 miles, were not built when other parts of the Rio Grande Valley were walled off because of the serious danger they pose to communities on both sides of the river.  On the U.S. side they could block the exit of flood water into the Rio Grande, bottling it up in towns and farm land and exacerbating the damage that they suffer.

They could also deflect flood waters towards Mexico, worsening flooding in Mexican communities.  Deflection might even cause the river to settle into a new channel farther to the south, which would effectively change the location of the border.  

In an attempt to lessen the amount of water that these walls will deflect into Mexican cities CBP designed them to channel flood waters north into the U.S. cities that they abut.  The walls will begin close to the Rio Grande, where during a flood water would be split off from the main channel.  As the river bends the mostly straight walls get farther from them, meaning that floodwater, along with all of the debris and garbage it carries, will be channeled into properties in the United States that might otherwise be spared from flooding. 

To make certain that water is channeled into the U.S. holes were planned for the middle of two of these wall sections – a 100 foot wide gap in the Roma wall, and a 275 foot wide gap in the Rio Grande City wall – explicitly intended to direct more water into these communities during a flood.

Existing border wall slicing through the Lower Rio Grande Valley National Wildlife Refuge

All three of the new border wall sections would also slice through the Lower Rio Grande Valley National Wildlife Refuge.  Established to create a wildlife corridor along the Rio Grande, the refuge provides habitat for critically endangered ocelot and jaguarundi.  Walls that have already been erected downriver repeatedly bisect and fragment the refuge, putting the future of the terrestrial species that it harbors in doubt.  The new walls would further fragment the refuge and cut off animals from the only reliable source of water in what US Fish and Wildlife has described as “some of the best habitat(s) in the U.S. along the final portion of the Rio Grande.”

In a February 15, 2012 letter John Merino, Principal Engineer for the US section of the International Boundary and Water Commission gave CBP the green light, saying, “the USIBWC has no objection to the erection of the fence segments within the limits of the Rio Grande floodplain.”  Merino dismissed the possibility that walls would deflect or obstruct flood waters, and stated flatly that USIBWC did not examine potential environmental impacts.  He also failed to mention the fact that for the previous five years both the U.S. and Mexican halves of the bi-national International Boundary and Water Commission had rejected the idea of placing border walls in the floodplain. 

Throughout 2007 and 2008 CBP tried without success to come up with a wall design for these last three sections that would not impact flooding, and that the IBWC would therefore approve.  Unable to convince the IBWC that walls in the floodplain would not act like dams, a DHS briefing from October 2, 2008, said of these three, “DHS likely to drop fence segments.”  When CBP informed Representative Henry Cuellar a few days after the 2008 election that these border wall sections were “on hold,” Cuellar called it “a big victory” for his district.

It would have made sense for Customs and Border Protection to decide that the Roma, Rio Grande City, and Los Ebanos walls were not worth risking lives and property to build.  Or, if bureaucracy outweighed humanity in their thinking, they might have called off wall construction in order to comply with the international treaty.

They also could have based a decision to spare them on a June 2008 internal Customs and Border Protection document that stated that “The Rio Grande Valley Sector Chief has determined that operational areas that contain the PF225 fence segments such as O-1 to O-2, O-12 through O-14, and O-17 through O-21 to be in “effectively controlled” level at the current time.”  Segments O-1 and O-2 are the Roma and Rio Grande City walls. 

Segments O-12 through O-14 are in Cameron County, near Los Indios.  Segments O-17 through O-21 encompass all of the wall sections in the vicinity of Brownsville, from the neighborhoods near the River Bend Golf Course west of town past the Sabal Palms Audubon Sanctuary and the Loop family orchard to the east.  Those who live in these areas and had their property condemned for border walls lost their land for nothing, because the local Border Patrol had determined that the area already under effective control before any walls were built.

Border wall segment O-21 under construction with the Sabal Palms Audubon Sanctuary south of it

Of course decisions about who will get walls and who will be spared are made in Washington DC, not the Rio Grande Valley. 

That simple fact helps to explain why Customs and Border Protection continued to push for these walls, shifting tactics from trying to convince Mexico that walls would not worsen flooding south of the border to pushing the US section of IBWC to allow for “unilateral” action – building walls in the face of Mexican objections, and thereby violating the international treaty.

After hurricane Alex roared into the Rio Grande Valley in 2010, followed by a tropical depression, the flooding Rio Grande forced the mandatory evacuation of Los Ebanos and parts of Rio Grande City.  With homes underwater and the evacuation order still in place, CBP hosted a meeting for the USIBWC and the State Department in Washington DC. 

At the DC meeting Customs and Border Protection did not mention the ongoing floods that were inundating the sites of the proposed walls, or the Border Patrol sector chief’s assessment that the area was “effectively controlled.”  Instead, CBP said that the three remaining walls were “critical to our Nation’s security,” and since Mexico continued to insist that they posed a flood hazard “we need [US]IBWC and Department of State’s support for an unilateral decision to proceed with the fence construction.”

Throughout 2010 USIBWC consistently rejected unilateral action, pointing out the likelihood of “substantial increases in water surface elevations and deflections of flow at several points of all three projects.”

But in late 2011 USIBWC reversed itself.  John Merino, the US section’s Principal Engineer, wrote to his Mexican counterpart to say that US IBWC had “concluded that the project will not cause significant deflection or obstruction of the normal or flood flows of the Rio Grande.” 

The Mexican section of the IBWC responded in December of 2011, saying,

"...the location, alignment and design of the proposed fence represent a clear obstruction of the Rio Grande hydraulic area, since in the towns of Rio Grande City and Roma, TX, the fence would occupy nearly all of the hydraulic area on the U.S. side, causing the deflection of flows towards the Mexican side. If you consider that, given the design characteristics, the fence obstructs 60-70% of the hydraulic area in a direction perpendicular to the flow, and if you add to that the effect of the current retaining trash and debris, the significant length that is located in the floodplain, and the position of the fence relative to the direction of flow, the fence constitutes a serious obstruction and deflection of the Rio Grande flows towards Mexico. […] We reiterate our opposition to the construction of the proposed fence in the Rio Grande floodplain given the impacts stated above."

Because the IBWC is a bi-national body, the rejection of one party should have brought this project to a halt.  Instead the US half of the IBWC approved the walls, allowing Customs and Border Protection to undertake the unilateral action that it had been pushing for.  This is a clear violation of the treaty that created both the IBWC and the border that Customs and Border Protection is supposed to protect.

But a treaty is just paper.  The real harm will come after the walls go up, when the next big storm roars into the Rio Grande Valley and the river floods. 

A Wall in a River is a Dam

by Scott Nicol

In this week’s Republican debate Bachmann, Cain, and Romney each fought to prove that if elected President they would build longer, taller, and more deadly walls than their opponents. In the run up to the event, Representative Bahmann vowed that the length of her wall “will be every mile, it will be every yard, it will be every foot, it will be every inch of that border.” Not to be outdone, Herman Cain said, “It’s going to be 20 feet high. It’s going to have barbed wire on the top. It’s going to be electrified. And there’s going to be a sign on the other side saying, ‘It will kill you — Warning.’”

In an effort to please politicians by erecting mile after mile of border wall, Customs and Border Protection (CBP) continues to push for new walls in the floodplain between the Rio Grande and the Texas towns of Roma, Rio Grande City, and Los Ebanos. To convince the International Boundary Water Commission (IBWC) to go along, CBP has tried to paper over the risk of increased flooding with more than a million dollars worth of reports and flood models. Walls in the floodplain are likely to either deflect water into Mexican cities or bottle it up in U.S. ones, and so far IBWC has rejected CBP’s claims to the contrary.

Last June CBP paid Baker Engineering for yet another flood model, which was used over the summer to pressure IBWC to reverse its position. The Sierra Club recently received a copy as a result of a Freedom of Information Act request.

The new flood model makes it clear that no changes in the border walls themselves are being considered. The walls’ locations are the same as those mapped out in a Baker report from 2009. They are still designed to split flood waters, diverting a portion of the flow into these three communities. The only difference is that the newer model uses a different computer program, allowing for more detail.

In 2009 CBP did not know what type of border wall they would like to build, so Baker’s model imagined a solid slab. Now CBP says that they plan to use a bollard design, similar to the walls built to the north of the levees in Cameron county. But in Cameron county the levees would keep flood waters away from the border wall, whereas the new walls would be in the floodplain, where there are no levees, and would be inundated if the Rio Grande were swollen by a major flood.

For this report, Baker assumed that debris in the bollards would block no more than 10% - 25% of the water. That led to the conclusion that walls would have minimal impacts. But the assumption that between 75% and 90% of the water in a major flood would pass harmlessly through the wall seems to be based on wishful thinking at best, or a desire to rig the model’s results at worst.

Flooding rivers pick up large amounts of debris, from trash to trees, and carry it along until they encounter an obstruction. Bollards spaced a few inches apart may allow crystal clear water to pass through, but in a flood debris will pile up. As the debris accumulates it blocks more and more water, and the border wall acts more and more like a dam.

This should not be news to CBP. The border walls that they have already built in Arizona, and which they promised would have no impact on flooding, have caused tremendous flood damage.

On July 12, 2008, seasonal monsoon rains swept through northern Mexico and southern Arizona. In the sister cities of Nogales, Sonora and Nogales, Arizona the border wall acted as a dam. In addition to the wall built above ground it was later revealed that DHS had constructed a wall in a storm drain that passes beneath both cities without informing local officials or the International Boundary Water Commission. Water in the storm drain backed up and burst through the roof, adding to the flooding in the streets. Two people drowned, and millions of dollars of damage was sustained by Mexican businesses and residents.

The same storm caused flooding in Organ Pipe Cactus National Monument. CBP had stated categorically that border walls crossing washes in the monument, using a design similar to that proposed for the new South Texas sections, would be water permeable and therefore would not impact flooding. Grate openings 6 inches high and 24 inches wide that were built into the base of the wall were supposed to allow water to pass through, but they quickly became clogged with debris. The wall then acted as a dam, with water piling up behind it 2 to 7 feet deep. Backed up flood waters then traveled along the wall in search of an outlet, which was found at the Lukeville, Arizona port of entry, causing millions of dollars in damage to private and federal property.

Following this event, Baker Engineering was paid to run the length of the border wall from El Paso to San Diego and produce a report on the problems posed by the many walls that cross stream beds and washes. They documented “debris build-up which sometimes reached a height of 6 feet.” Their report concluded that, “fencing obstructs drainage flow every time a wash is crossed. With additional debris build-up, the International Boundary Water Commission’s (IBWC’s) criteria for rise in water surface elevations (set at 6” in rural areas and 3” in urban areas) can quickly be exceeded.”

Flood gates were installed, at a cost of over $24 million, in an attempt to prevent a repeat of the 2008 flooding. These gates are massive, and to work require Border Patrol agents to predict a flood, drive into a wash ahead of the water, throw a cable over a bar at the top of the wall, hook it to the top of the gate, and use their Jeep’s winch to pull the gate up. Then the agents need to get out of the wash and get to high ground. If they are not quick enough, they could be swept away or slammed into the wall by raging flood waters. If they manage to get out of the way they may be forced to wait on high ground between flooded washes until the waters recede.

Last August one of the sections of Arizona border wall that CBP had retrofitted with flood gates was knocked over and washed away by the force of flood waters after just over two inches of rain fell. Debris build-up had again turned the wall into a dam, just as it had in 2008. In this case, instead of following the wall to the nearest port of entry, the debris piled higher and higher the water poured over the top like a waterfall. The falling water tore away the wall’s foundation at the same time as the weight and pressure of the water pushed against the wall with increasing force. A forty-foot wide section of border wall fell.

Border Patrol spokesman Lloyd Easterling blamed the wall’s failure on human error, apparently because agents had not gone into washes ahead of the flash flood to open flood gates.

But the problem does not lie with patrol agents who cannot predict the weather, or don’t want to drive into a riverbed during a flood. The problem is higher up CBP’s command structure, with administrators who are so fixated on building walls, and thereby pleasing their superiors, that they overlook a basic fact:

A wall in a river is a dam.

It is time for Customs and Border Protection to face up to the fact that when they build walls in flood-prone areas, they may be able to ignore the impacts on paper, but not in the real world. The walls that they are pushing in Roma, Rio Grande City, and Los Ebanos will have a disastrous impact on the very homeland that they are supposed to protect. Customs and Border Protection needs to ignore political pressure and give up on these last sections of border wall, before they do any more damage.


The June 2011 flood model for walls in Roma, Rio Grande City, and Los Ebanos can be downloaded here: http://www.scribd.com/doc/68844504/June-2011-CBP-Hydrology-Report-for-Border-Wall-Sections-O-1-O-2-O-3

CBP Willing to Risk Flooding to Erect New Walls in Roma, Rio Grande City and Los Ebanos

By Scott Nicol

It was just over a year ago that the rising waters of the Rio Grande prompted the mandatory evacuation of Los Ebanos, Texas. Residents rushed to grab what they could before floodwaters cut off the town.

Before the flood, Customs and Border Protection (CBP) was pressuring the U.S. half of the International Boundary Water Commission (USIBWC) to approve the construction of border walls through Los Ebanos, as well as Rio Grande City and Roma, that could have worsened the flooding. CBP had even gone so far as to request that the US half of the International Boundary Water Commission act “unilaterally” and approve walls in the floodplain despite the objections of the Mexican half.

The plans for border walls drafted after the passage of the Secure Fence Act showed South Texas on the receiving end of 69 miles of border wall in 21 disconnected sections. The westernmost three sections, designated O-1, O-2, and O-3, were to be through the communities of Roma, Rio Grande City, and Los Ebanos.

In 2008 the US International Boundary Water Commission made it clear that any walls built along the Rio Grande must comply with US-Mexico treaties. The Real ID Act allowed the Department of Homeland Security (DHS), Customs and Border Protection’s parent agency, to waive all federal, state, and local laws, but not treaties. Walls built in the flood plain adjacent to the Rio Grande might deflect flood waters towards Mexico, causing flood damage to Mexican communities. Deflection might also cause the river to settle into a new channel farther to the south, which would effectively change the location of the US-Mexico boundary. Either of these would be a treaty violation.

In Cameron County and most of Hidalgo our treaty obligations meant that border walls could not be built between the existing flood control levees and the river, so walls were constructed on, in, or north of the levees. Those walls are, for the most part, finished. But unlike the downriver sections, Roma, Rio Grande City, and Los Ebanos do not have USIBWC flood control levees. The border walls in these three communities would therefore be in the flood plain.

Because of the wall’s likely flood impacts USIBWC rejected these three sections of border wall.

A few days after the 2008 elections CBP informed Representative Cuellar, whose district encompasses these communities, that these border wall sections were “on hold.” At the time Cuellar said, “This is a big victory.” He went on to tell the Associated Press, “We're hoping that this will allow us to work with the next president to find ... alternative methods for security."

Representative Cuellar’s constituents also hoped that that would be the last they would hear of plans to wall off their towns from the river, but in a May, 2010 report on the Secure Border Initiative (which includes both solid and “virtual” border walls) the Government Accountability Office stated, “CBP plans to construct an additional 14 miles of pedestrian fencing in the Rio Grande Valley sector.” These 14 miles are the combined Roma, Rio Grande City, and Los Ebanos sections.

Documents uncovered by the Sierra Club through a Freedom of Information Act request over the last year demonstrate that, in fact, the Department of Homeland Security and Customs and Border Protection continued to push for the construction of these walls, and were willing to disregard our treaty obligations and likely problems with flooding to do so.

A Customs and Border Protection “Fence Status Brief” dated April 27, 2009 reveals that to build the previously rejected walls CBP had decided upon a new plan. They would not change the design or location of the walls, or, better yet, give up on them entirely. Instead it says, “the new strategy involves developing a new floodplain model” and that, unlike the old model approved by USIBWC that “predicted noteworthy floodplain impacts from the fence,” “this model will demonstrate the impacts of the proposed fence will be minimal.”

The verb tense - "this model will demonstrate" - is important. It appears that CBP determined the outcome in advance, rather than commissioning an honest, unbiased model that would accurately describe the effects of structures built in the floodplain.

The “new flood plain model”, prepared by Baker Engineering, was completed in December 2009. Presented to CBP eight months after their fence status brief forecast its findings, its conclusion fit the earlier prediction precisely. The “noteworthy floodplain impacts” of building border walls in a floodplain that were predicted just a year earlier disappeared; instead, Baker now claimed that walls would have a “minimal effect on the Rio Grande floodplain.”

Baker decided this without even knowing what type of border wall design would be used. In 2008, CBP proposed a number of designs that were touted as either allowing floodwaters to pass through without being dammed up, or able to be removed before rising water reached them. USIBWC rejected all of these unrealistic schemes. In their 2009 report Baker modeled the border wall as an 18’ high, impermeable wall, with the specific design, whether concrete or steel, posts or mesh or slabs, to be determined later. Since CBP apparently told Baker what the outcome of their modeling would be before they began, it seems that such details were unimportant.

One striking conclusion of Baker’s “new flood plain model” was that in the communities of Roma, Rio Grande City, and Los Ebanos, border walls would “split” the flooding river. It states that for each wall segment, “Downstream of the flow split location, the flow continues in a north branch and a south branch on either side of the fence. The flow combines downstream of the point where the fence ends.”

This splitting is intentional. In the case of Rio Grande City, the wall was modeled with a 500 foot-wide opening in the middle specifically intended to split flood waters and send a portion of them north. Diverting water to the north of the border wall, into property on the US side of the river, means that less is deflected into Mexico. In this way CBP hopes to avoid flooding Mexican communities, and possibly pushing the Rio Grande into a new channel. Walls built in a floodplain will either deflect or divert floodwater, and the only real question is who is going to be on the receiving end.

Each of these wall sections begins upstream of a town and ends downstream of it. They begin close to the river, then the river and wall get farther apart before coming back together. So flood water that might not have reached properties where the proposed wall is farthest from the river will, with a wall in place, have “split” floodwaters channeled directly to them.

This is particularly striking for the Los Ebanos section. The community of Los Ebanos is nestled at the top of a deep bend in the river. The proposed wall would begin next to the Rio Grande at the top of this bend. While the river turns and heads due south, away from homes and the local school, the wall heads due east, directly towards them. That means that water that might have otherwise followed the river and flowed away from Los Ebanos will be split off by the wall, and be diverted into it. On the other side of town, instead of allowing the split flood waters to pour back into the Rio Grande, the wall makes a ninety degree turn, from east to north. Water that had been split off from the flooded river would therefore be bottled up in Los Ebanos.

A Customs and Border Protection Fence Status Brief dated January 20, 2010, written following the presentation of the “new flood plain model” to the Army Corps of Engineers and USIBWC, says that, “[acting USIBWC Commissioner] Ruth agreed no additional modeling is required and to ‘informally’ discuss the fence segments with the new Mexican IBWC Commissioner to determine if he will support.” The brief goes on to state that, “If it appears Mexico will continue to oppose fencing, CBP/DHS and IBWC/DOS [Department of State] to discuss potential unilateral decision to proceed with construction.”

A “unilateral decision” regarding the Rio Grande floodplain, taken by the US half of the International Boundary Water Commission in the face of opposition by the Mexican half, would be a serious treaty violation. The United States would essentially be challenging Mexico to try to stop us from building illegal walls.

On January 21, 2010, acting USIBWC Commissioner Ruth stepped aside, and Edward Drusina became the new commissioner. On his first day in office Commissioner Drusina wrote a letter to David Aguilar, the acting Commissioner of Customs and Border Protection. He stated that, after examining the model that CBP had commissioned, “the USIBWC is not in a position to approve construction of the O-1, O-2 and O-3 fence projects.”

Rather than accept the fact that walls built in the Rio Grande floodplain will have unacceptable impacts, CBP repeatedly pressed the USIBWC to reverse its decision. On February 2, 2010, Aguilar responded to Drusina, “we respectfully request that the USIBWC and Department of State reconsider your position and approve a unilateral decision to allow us to proceed with the design and construction of the O-1, O-2 and O-3 fence segments.”

On July 20, just one week after the flooding Rio Grande forced the mandatory evacuation of Los Ebanos, CBP presented a briefing to the State Department on these three border wall sections. During the briefing CBP claimed that they had already spent “+$1M in “design analysis” costs”, and said that, “we need IBWC and Department of State’s support for an unilateral decision to proceed with the fence construction.”

USIBWC stood firm, and on September 17, 2010, Comissioner Drusina again denied CBP permission to build new walls in the Rio Grande flood plain. CBP continued to push back, and a month later the new CBP Commissioner, Alan Bersin, wrote to USIBWC, asking that they reconsider and complaining about “Mexico’s recent opposition to border fencing regardless of hydraulic modeling results.”

Bersin’s October 2010 letter to USIBWC is the most recent document uncovered by the Sierra Club’s Freedom of Information Act request. The Club was told that to obtain newer documents another request would have to be filed. One has, but it may take months for us to begin receiving more documents.

We have learned through a recent conversation with representatives of the USIBWC and State Department that following the October 2010 letter Commissioners Bersin and Drusina held at least two meetings to discuss the Roma, Rio Grande City, and Los Ebanos walls. As a result of those meetings Baker Engineering was commissioned to develop yet another flood model. That model was completed last spring, and was reviewed by the Army Corps. of Engineers and USIBWC over the summer. It has not been released to the public.

While we hope that USIBWC continues to act in the best interests of the residents of these three communities and live up to its treaty obligations in the face of pressure from Customs and Border Protection, we have no guarantees. The discussions between these two agencies are being held behind closed doors, with landowners and community leaders kept out of the room. It may be months before we are able to see a copy of the latest flood model, and the only announcement that new border walls have been approved may be the arrival of construction crews.

US Representative Henry Cuellar, who represents Roma, Rio Grande City, and Los Ebanos in Washington, should ensure that his constituents are kept informed and given a seat at the table when walls that could channel flood waters into their homes and property are discussed. As the ranking member of the House Homeland Security Subcommittee on Border and Maritime Security, he has the power to demand that CBP hold open public hearings in each of these communities. Customs and Border Protection owes residents the decency of a face to face explanation, before they build new border walls that could put people’s lives and properties at risk.

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.

The No Border Wall Coalition Praises DHS’ Decision to Spare 3 South Texas Communities

The No Border Wall Coalition hails the decision by the Department of Homeland Security to give the South Texas communities of Roma, Rio Grande City, and Los Ebanos a reprieve from border wall construction in 2008. It is our hope that this will be made permanent by the new administration. We believe that Cameron County and the rest of the border which is slated for wall construction before the end of Secretary Chertoff’s tenure should also be spared.

No Border Wall Coalition protest in Roma, Texas, July 2007

The border wall has already led to the condemnation of farmland and municipal property, and the walls that are currently under construction are devastating wildlife refuges and destabilizing South Texas’ flood control levees. $3 billion has been wasted on walls that the Border Patrol says only slow crossers by a few minutes. With two wars, a deepening financial crisis, and trillions of dollars of debt, our nation cannot afford to throw more money into this bottomless pit.


Levee - border wall construction on the northern border of a US Fish and Wildlife Refuge tract in South Texas October 24, 2008

We hope that the decision to spare these communities signals the beginning of a sane border policy on the part of the Department of Homeland Security and the Bush administration. The border wall is nothing more than a political prop, a backdrop for politicians who want to look tough on national security. With the election behind us, it is time to move beyond hollow symbols.

The No Border Wall coalition calls upon President-elect Obama to appoint a new Secretary of Homeland Security who will reject Michael Chertoff’s failures and refuse to play politics with the lives and property of border residents. He should enact a moratorium on further border wall construction until a non-partisan organization such as the Government Accountability Office can review both the impacts of the walls that have already been built and the foreseeable impacts of proposed walls.

DHS Violates the Law in Condemning Private Property for the Border Wall

Texas RioGrande Legal Aid has been providing legal advice and representation to private property owners threatened by the border wall who could not otherwise afford a lawyer. The Department of Homeland Security has been trying to browbeat landowners into signing over access to their lands. Even in cases in which a farm or ranch will be sliced in half, and a lack of access to the Rio Grande for irrigation will make farming more expensive or completely untenable, DHS has only offered to pay for the slice of property that the wall sits on. Property owners whose land is entirely behind the wall will receive no compensation, even though the liklihood that anyone will want to buy their property in the future is next to nothing. TRLA has done commendable work on behalf of border residents, and the No Border Wall Coalition commends their efforts.

TRLA released the following press release regarding their efforts to defend private property owners on May 8, 2008:

NEW ORLEANS, Louisiana – Today the United States Court of Appeals for the Fifth Circuit ordered that oral arguments on a series of border wall lawsuits will begin the week of July 7.

The issue to be addressed by the Court is whether the Department of Homeland Security (DHS) violated federal law by condemning land for the border wall before negotiating a price for the property. Represented by Texas RioGrande Legal Aid (TRLA), the largest provider of legal aid in Texas, the landowners are arguing that the government is not following the legal steps required in the condemnation process.

Landowners in the cases on appeal claim that, because the Government failed to offer any money, it cannot sue them for land access. DHS is arguing that it did not offer the landowners any money because it “deemed $0.00 to be a reasonable price” and the courts do not have the power to question the government’s determination of the price’s reasonability.

“If the government’s condemnation power is really that broad, then nobody has the power to make them comply with their own laws,” said TRLA attorney Jerome Wesevich, “The government asserts absolute power in this case and that power can’t be questioned by anyone.”

Landowners involved in the litigation include Baldomero and Hilaria Muñiz of Los Ebanos, Texas. The elderly couple worked as migrant farmworkers and used their earnings to build a house on the border. They raised their five children in the house and now tend goats on their small piece of land to survive. In June 2007 DHS approached Mr. Muñiz and told him that he had to give the Department access to his property or be sued by the federal government.

“This land is their livelihood,” added Wesevich. “Saying that it isn’t worth a penny is insulting.”

The U.S. Court of Appeals for the Fifth Circuit case number is 08-40372.

###

Established in 1970, Texas RioGrande Legal Aid, Inc. (TRLA) is a nonprofit organization that provides free civil legal services to low-income and disadvantaged clients in a 68-county service area. TRLA’s mission is to promote the dignity, self-sufficiency, safety and stability of low-income Texas residents by providing high-quality legal assistance and related educational services.

Contact: Jerome Wesevich, Attorney
915.241.0534
jwesevich@trla.org

Cynthia Martinez, Communications Director
512.374.2764
cmartinez@trla.org