Eminent Domain is Heating Up in Texas

Photo: Houston Chronicle

​A CNN review of federal court filings show that the number of eminent domain cases being filed is seeing an aggressive increase.  It’s part of Trump’s promise to “build that wall”.  The period of time being reviewed ended on November 15th and shows that 29 eminent domain suits tied to the border-wall construction were filed. That is up from 11 suits each of the past two years.  Almost all of the suits, except for four, were filed in the state of Texas.
 
It is estimated that about 1,300-miles of the 1,950-mile US-Mexico border do not have fencing, since the property is privately owned or too dangerous to cross.  This is part of the area, the Rio Grande Valley, has seen the first new barriers.  Three miles of new wall will be built in the coming months according to the US Customs and Border Protection. Mark Morgan, CBP's acting Commissioner, has said the agency wants to build 450 miles of new wall by the end of 2020.
 
As can be expected, the path to eminent domain for a large expanse of land is going to meet challenges.  For example, Friends of the Wildlife Corridor, a conservation group, is fighting an eminent domain suit over a 72-acre parcel of land on the banks of the Rio Grande.  Over the past 20 years, the group has worked to create a wildlife corridor with the ultimate goal of selling the land to the US Fish and Wildlife Service to connect two existing wildlife refuges.  
 
The US government, since 2017, has filed 35 "declarations of taking" notices in Starr and Cameron counties, Texas.  The Sierra Club obtained internal CBP emails, through a Freedom of Information Act, showing that more than 1,100 parcels of interest along the path of the proposed border wall in South Texas in February 2018.
 
According to Ricky Garza, a staff attorney at the Texas Civil Rights Project, which is representing some landowners, CBP usually starts the process with a "right of entry" letter asking landowners voluntarily to grant the government the right to access their land to conduct surveying and soil testing as a prerequisite to possibly taking the land.
 
"If you don't answer the letter, you get a home visit from a Border Patrol vehicle, pulling up to the house with an officer with the Army Corps of Engineers, an armed Border Patrol agent and often someone from the Department of Justice as well," he said. Several landowners described similar visits to CNN.
 
As in many cases of eminent domain, landowners don't understand they have a right not to sign the request for entry.  Karla Vargas, a senior attorney at the Texas Civil Rights Project confirmed this is happening in Texas.
 
In many cases, the issue goes beyond the land and includes concerns for clean water. In October 2018, then DHS Secretary Kirstjen Nielsen waived more than two dozen laws to expedite border wall construction in Texas, including the Endangered Species Act, the Clean Air Act, the Clean Water Act, the Safe Drinking Water Act and the Migratory Bird Conservation Act, among others.
 
Is “national security” enough to justify eminent domain for the taking of private property?  According to Emma Hilbert, an attorney at the Texas Civil Rights Project, there is relatively little dispute over the government's right to use eminent domain to acquire private property in cases of national security.
 
For many landowners, they are trying to see if time will be on their side, slowing the process down and waiting for either for a change in administration or higher land prices.
 
We will be waiting and watching too.