Landowner rights at center of challenge to border wall

October 8, 2017 GMT

In response to President Donald Trump’s administration continuing efforts to make good on his polarizing campaign promise of constructing new border walls on the U.S. Mexico border, U.S. Reps. Beto O’Rourke, D-El Paso, and Ruben Gallego, D-Ariz., announced new legislation designed to prevent the federal government from usurping private land to do so.

During a news conference earlier in the week, O’Rourke and Gallego discussed how the legislation — The Protecting the Property Rights of Border Landowners Act — would amend the Immigration and Nationality Act to forbid the Secretary of Homeland Security and the U.S. Attorney General from using eminent domain to acquire land for construction of new border walls, or any other barrier along the U.S. Mexico border.

“We do not need a 2,000-mile, 30-foot-high wall separating us from Mexico,” O’Rourke said during the call. “And if the Trump administration moves forward with the construction of this wall, it will be built not on the international boundary line but in the U.S. — much of it on private property in the state of Texas.”

In July, the U.S. Department of Homeland Security stated that the Army Corps of Engineers had begun preparations for the construction of a wall in several places along the border, including El Paso.

Additionally, the president requested funding to double the number of Department of Justice attorneys who work in land acquisition. And construction on eight prototypes for the wall began last week with Trump saying he would pick the design himself.

All this has occurred while nearly 100 eminent domain condemnation cases remain open from more than a decade ago — the last time the government seized land for a wall in the Rio Grande Valley, including in Los Ebanos, where Efren Olivares of the Texas Civil Rights Project worked extensively.

While working with the private landowners, Olivares said he saw firsthand what he characterized as abuse on behalf of the federal government.

“ For almost 10 years, we at Texas Civil Rights Project have seen how the federal government abused the eminent domain process and violated the rights of landowners in the Texas borderlands in the process to build the existing border fence,” Olivares said. “People were paid cents on the dollar for their land, almost in all cases without proper consultation processes and with confusing or incomplete information, at best. We are glad to see this bill introduced as a way to ensure that people in border communities are not railroaded again in the government’s obstinate pursuit of a border wall.”

O’Rourke visited the Valley in late July and toured the Santa Ana National Wildlife Refuge, one of the region’s several locations the administration has picked for border wall construction.

That same month, O’Rourke and Gallego opposed the inclusion of $1.6 billion to start building Trump’s border wall.

At Wednesday’s conference, O’Rourke said the administration — in planning the construction of these barriers — has neglected the rights of property owners who live in, and around the border. O’Rourke also noted that two-thirds of the land along the border is private or state-owned, most of which falling within Texas.

The idea of Texan private landowners going up against the federal government is nothing new.

More than four years ago, the U.S. Bureau of Land Management claimed that sections of a 116-mile stretch of land along the Red River belonged to the federal government. Officials with BLM cited a 1923 Supreme Court decision as the basis for their claim, saying that the court assigned land north of the river to Oklahoma and the territory south of the river to Texas. The patches in between belong to the federal government.

But private landowners, farmers and ranchers who have paid taxes on the land in dispute say the property is actually theirs.

Asked about similarities with the Red River issue, and the federal government’s attempt to use eminent domain to strip landowners of their private property, Sen. John Cornyn, R-Texas, focused instead on his three-prong approach to border security.

Cornyn worked with U.S. Rep. Mac Thornberry, R-Texas, on the issue

Along with two other Republican senators, Cornyn — who worked with U.S. Rep. Mac Thornberry, R-Texas, on the Red River issue — introduced legislation on Wednesday that would increase resources along the border, as well as boost trade through ports of entry and strengthen enforcement of existing laws,

“I believe any border security solution should contain a combination of three things: physical and tactical infrastructure, personnel and technology,” Cornyn said. “How those combinations of three things work will vary at different locations along the border, because each mile is unique and presents a different challenge in terms of what’s needed.”

Just last month, DHS’s Office of Immigration Statistics released a report that stated 55 to 85 percent of attempted illegal crossings were unsuccessful. This is up from just over a decade ago when that percentage was in the 35 to 70 percent range, the document states.

“We do not need a border wall that raids the land of private citizens, ransacks the businesses and ranches of hard-working Texans and strips property rights away from Americans,” O’Rourke said.