Condemnation Lawsuits Stand Between Trump and His ‘Big Beautiful Wall’

The first panels of levee border wall are seen at a construction site along the U.S.-Mexico border, in Donna, Texas, in 2019. (AP Photo/Eric Gay, File)

HOUSTON (CN) – With President Donald Trump eager to fulfill his campaign promise to build 450 miles of border wall by the end of 2020, his administration has filed 63 eminent domain lawsuits against South Texas landowners this year. One problem: Such cases can take years to resolve.

In pushing to expand the wall, Trump has stirred drama worthy of his former status as a reality TV star.

He infuriated the nation of Mexico during his 2016 presidential campaign by baselessly claiming it would pay for the wall. And he provoked the longest government shutdown in U.S. history by refusing to sign a spending bill unless Congress approved $5 billion in wall funding.

To speed up the project, he waived numerous environmental regulations which would have required federal agencies to study how it affects endangered species.

Bypassing Congress, he transferred $10 billion from the Pentagon’s budget for wall construction.

Now like a reality TV show in its final season, people are tuning in to see if Trump will reach his goal. It is not looking good for him.

According to U.S. Customs and Border Protection, 275 miles of barriers have been constructed under Trump, 89% of which replaced those built by previous administrations, though Trump deems it all “new” wall, and funding is set aside for another 463 miles.

Trump has nabbed $15 billion in federal funds for the project.

Yet when the government brings condemnation lawsuits against South Texas landowners to take their property on the Rio Grande, federal judges who claim their hands are tied by precedent only make it pay $100 for an easement to survey the land.

“I think it’s insulting,” John Guerra said.

Guerra owns several tracts along the river in Starr County, Texas. The property goes back to 1767 when the Spanish monarchy granted his forebearer José Alejandro Guerra title to two plots straddling the river.

After Texas won its independence from Mexico in 1836 and was admitted to the union in 1845, the Rio Grande was officially designated as the border between Texas and Mexico.

Because most of the riverfront land in Texas is privately owned, for wall projects the government must take owners to court to force them to sell portions of their properties through its power of eminent domain.

The government has filed three such lawsuits against Guerra, one in 2008 after then-President George W. Bush signed the Secure Fence Act authorizing construction of 700 miles of border wall and two in 2019.

Guerra’s attorneys argued in court filings the $100 the government offered for an easement to survey one of his plots – 8.9 acres in Starr County – was not enough and presented analysis from a real estate appraiser who pegged the value of lost rental income for the property at $8,100.

But U.S. District Judge Micaela Alvarez, found in a July 29 order the government’s surveying work would minimally interfere with Guerra’s property rights and the appraiser’s estimate of lost income was conclusory.

The $100 is enough, said Alvarez, a George W. Bush appointee. 

Guerra’s attorney Stephen Csajaghy of the Denver firm Condit Csajaghy disagrees. “They’ve got not only surveyors but contractors, builders and frankly whoever they want coming out and traipsing all over the property and all he got was $100 for that?” he said.

Though he lives far from the border, Csajaghy said he agreed to represent Guerra because he disagrees politically with the wall.

Guerra, 58, grew up in Roma, Texas. “I remember seeing people crossing our backyard when I was a little kid. … You could see Mexico from our backyard,” he said, adding that he never felt threatened by the trespassers.

He now lives in the northeast, but he often visits family in South Texas.

He said undocumented immigrants and drug smugglers do cross the river onto his brush- and mesquite-covered property. “But I also know that it’s almost impossible to police that and it’s something that’s been going on forever,” he said.

Guerra said in 2010 he and his family were hearing rumors the government under Barack Obama wanted to buy 29 acres he owns on the river to build a bridge and help facilitate booming trade between Mexico and the United States.

The Trump administration has filed suit to take the land. “And now they are talking about a wall. And you can’t be any clearer than that in the difference, in how crazy this whole thing is,” he said.

The condemnation caseload drives home the ideological divide between Trump and Obama.

Over Obama’s two terms, Justice Department attorneys in the Southern District of Texas, which includes five counties on the Rio Grande, brought 20 condemnation actions seeking to acquire land for border wall construction.

Since Trump took office in January 2017, the district’s attorneys have filed 111 condemnation lawsuits, including 63 this year.

The litigation can be grueling and many of the newest cases will not be resolved before 2021.

The cases of landowners who fought condemnation actions brought by the Bush administration took an average of three-and-a-half years to settle; one took seven years.

Guerra said he’s hoping Trump will lose the November presidential election to Joe Biden, who recently said, “There will not be another foot of wall construction in my administration.”

Biden also said he will dismiss pending condemnation cases. “End. Stop. Done. Over. Not going to do it. Withdraw the lawsuits. We’re out. We’re not going to confiscate the land,” he said.

Luke Ellis, a University of Texas law professor and partner of an Austin firm that specializes in eminent domain, said he does not think the government will return any property already taken for border wall construction if Biden defeats Trump.

According to Customs and Border Protection, 306 miles of border wall are under construction and another 157 miles are in preconstruction phase. 

Should Biden win, Ellis said, “I predict the preconstruction matters will be postponed. I predict the projects already under construction will be re-evaluated. If the construction process is far along, those projects may continue.”

Rather than erecting physical barriers, Biden and his fellow Democrats favor a “smart border” approach of using surveillance drones, infrared cameras and motion-detecting radar to catch people entering illegally and drug smugglers.

Guerra said he also believes Trump’s method is outdated. “At best it’s a 14th century solution to a much more complex 21st century problem.”

Trump’s administration must build another 175 miles by January to meet his goal. Stay tuned.  

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