Seiz­ing pri­vate land for the bor­der wall won’t be easy.

The Washington Post Sunday - - OUTLOOK - Twit­ter: @ProfJDick­in­son

In 2008, the Ge­orge W. Bush ad­min­is­tra­tion, which had started build­ing about 670 miles of bor­der fenc­ing on mostly fed­er­ally owned land in Ari­zona, Cal­i­for­nia and New Mex­ico un­der the Se­cure Fence Act of 2006, tried to seize an acre or so in Cameron County, Tex., that be­longed to Eloisa Tamez. Things did not go quickly.

Tamez fought the gov­ern­ment in fed­eral court. Dur­ing seven years of lit­i­ga­tion and ne­go­ti­a­tion, she be­came fa­mous for re­sist­ing the bor­der fence. The gov­ern­ment even­tu­ally paid her $56,000 for a quar­ter-acre the fence sits on and gave her a code to open a gate so she can ac­cess her land to its south.

Imag­ine this play­ing out over and over again along the 1,300 miles of border­lands that Pres­i­dent Trump wants to wall up. “We will soon be­gin the con­struc­tion of a great wall along our south­ern bor­der,” Trump promised Tues­day night in an ad­dress to Congress. “It will be started ahead of sched­ule, and, when fin­ished, it will be a very ef­fec­tive weapon against drugs and crime.”

But ac­tu­ally build­ing the wall, as the Tamez saga shows, won’t be as easy as dash­ing off an ex­ec­u­tive or­der re­quir­ing it. The main prob­lem won’t even be the $25 bil­lion that some es­ti­mates say the bar­rier could cost. Trump’s real dif­fi­culty will be in get­ting per­mis­sion from prop­erty own­ers to build the wall — no mat­ter how much money it takes — and the land wars that will bog down his plans.

Trump, who has cast him­self as a mas­ter deal­maker, will need to co­or­di­nate mas­sive vol­un­tary sales of prop­erty near the bor­der or ne­go­ti­ate ease­ments for large swaths of land to make way for the wall con­struc­tion. This is no small feat. Only about one-third of the land the wall would sit on is owned by the fed­eral gov­ern­ment or by Na­tive Amer­i­can tribes, ac­cord­ing to the Gov­ern­ment Ac­count­abil­ity Of­fice. And much of that ter­ri­tory is al­ready fenced. The rest of the bor­der is con­trolled by states and pri­vate prop­erty own­ers. Es­ti­mat­ing the costs of ne­go­ti­ated sales of all the ter­ri­tory at stake is dif­fi­cult ahead of time, be­cause the frag­men­ta­tion raises ques­tions about mar­ket value, par­tic­u­larly for land in the limbo zone south of the planned wall but north of the bor­der.

Costs aside, re­sis­tance is build­ing. Landown­ers, Na­tive Amer­i­can tribes, and Repub­li­can and Demo­cratic law­mak­ers are on record op­pos­ing the wall. What hap­pens if this re­sis­tance turns into out­right re­fusal to sell land? Trump’s only op­tion at that point would be em­i­nent do­main — which could prove to be even harder than cut­ting in­di­vid­ual deals.

In try­ing to take land for the wall, the fed­eral gov­ern­ment would be held to time-con­sum­ing pro­ce­dures that in­clude con­sul­ta­tion and ne­go­ti­a­tion with the af­fected par­ties — in­clud­ing pri­vate landown­ers, tribes, and state and lo­cal gov­ern­ments — be­fore tak­ing any ac­tion. Fed­eral law re­quires the gov­ern­ment to con­sult with “prop­erty own­ers . . . 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.” Then the gov­ern­ment would need to de­clare a tak­ing and un­dergo con­dem­na­tion pro­ceed­ings.

The Fifth Amend­ment’s tak­ings clause states, “Nor shall pri­vate prop­erty be taken for pub­lic use, with­out just com­pen­sa­tion.” What this means is that the gov­ern­ment may seize some­one’s prop­erty and trans­fer it to an­other gov­ern­men­tal en­tity or to a pri­vate en­tity, but only if do­ing so is for a pub­lic use. A long-stand­ing in­ter­pre­ta­tion of the clause al­lows tak­ing prop­erty to build high­ways, bridges, air­ports and dams. As for a wall? It would prob­a­bly pass muster, although re­solv­ing that ques­tion in fed­eral court may take time. But the prob­lems wouldn’t end there.

The tak­ings clause also pro­tects pri­vate landown­ers from un­com­pen­sated seizures. Own­ers who are sub­ject to em­i­nent do­main to build the wall would have to re­ceive com­pen­sa­tion for its phys­i­cal pres­ence on their prop­erty. Suc­cess­fully mea­sur­ing the value of the land and set­tling on prices for hun­dreds of own­ers with unique prop­erty in­ter­ests, how­ever, would be the “deal” of the cen­tury. De­ter­min­ing just com­pen­sa­tion is not easy in con­tested cases in which the land and prop­erty at stake are in­fre­quently ex­changed on the mar­ket. There are few prop­er­ties in the United States sit­u­ated along an in­ter­na­tional bound­ary, some of which is al­ready fenced, which makes fair value hard to es­tab­lish.

As Eloisa Tamez’s case demon­strated, that’s a lot of am­mu­ni­tion for hun­dreds of landown­ers. If the roll­out of Trump’s hastily drafted travel ban is any in­di­ca­tor, we should ex­pect sloppy ex­e­cu­tion of statu­tory re­quire­ments and tak­ings pro­ce­dures if the ad­min­is­tra­tion at­tempts to con­demn bor­der land.

Tribal lands would be an even big­ger ob­sta­cle. Most such land in the wall’s path be­longs to the To­hono O’odham Na­tion, in­clud­ing a reser­va­tion that ex­tends along 62 miles of the bor­der in Ari­zona. Tribes have cer­tain prop­erty rights un­der the Con­sti­tu­tion and fed­eral statutes. Many of their lands are held in trusts, which fed­eral law rec­og­nizes as in­de­pen­dent po­lit­i­cal en­ti­ties. Trump would need a bill from Congress to ac­quire the tribal lands, which are pro­tected by treaties and other statu­tory equiv­a­lents.

What is the re­sult of all of this? Years and years of lit­i­ga­tion be­fore the “im­me­di­ate con­struc­tion” of the wall. Any fed­eral em­i­nent do­main ac­tion on such a large scale against even a few landown­ers could trig­ger decades of court dis­putes be­fore any­thing is built. As Trump, a New York real es­tate ty­coon, is surely aware, the At­lantic Yards re­de­vel­op­ment pro­ject in Brook­lyn en­dured mul­ti­ple con­dem­na­tion chal­lenges, re­sult­ing in six years of lit­i­ga­tion and ne­go­ti­a­tion. be­fore any­thing was built. And that was a much smaller un­der­tak­ing.

As it hap­pens, the pres­i­dent has plenty of ex­pe­ri­ence at­tempt­ing to seize land on the East Coast. He does not hide his en­thu­si­asm for tak­ing busi­nesses and homes for his own busi­ness in­ter­ests. In the mid-1990s, Vera Cok­ing, owner of a house just off the board­walk in At­lantic City, was sub­ject to Trump’s wrath when he tried to per­suade the lo­cal au­thor­i­ties to con­demn her prop­erty so he could con­struct a park­ing lot for the 22-story Trump Plaza Ho­tel and Casino he had built right next door.

He turned to the gov­ern­ment-es­tab­lished Casino Rein­vest­ment De­vel­op­ment Au­thor­ity af­ter Cok­ing re­fused to sell. Trump lost that bat­tle in Casino Rein­vest­ment De­vel­op­ment Authori

ty v. Banin. In 1994, Trump threat­ened to con­demn five busi­nesses in Bridge­port, Conn., to make way for an of­fice and en­ter­tain­ment com­plex and, as he did in At­lantic City, lob­bied city of­fi­cials to ex­er­cise em­i­nent do­main. It didn’t hap­pen.

The Supreme Court up­held the le­gal­ity of tak­ings mo­ti­vated by eco­nomic-de­vel­op­ment con­cerns — the sort Trump cham­pi­oned in his real es­tate ca­reer — in a con­tro­ver­sial 2005 de­ci­sion in Kelo v. City of New Lon­don. The plain­tiff, Susette Kelo, lost her Con­necti­cut home in that de­ba­cle. Af­ter a le­gal saga that be­gan in 1998, the end re­sult was a failed de­vel­op­ment pro­ject.

The Great Wall of Trump could leave hun­dreds of Cok­ings and Ke­los at risk of los­ing their prop­erty. Pres­sure for Trump to back down will mount; th­ese types of land grabs spark pub­lic ou­trage. Af­ter Kelo, there was a state-led back­lash: Within sev­eral years of the de­ci­sion, most states had en­acted leg­is­la­tion giv­ing own­ers ad­di­tional prop­erty pro­tec­tions.

Amer­i­cans do not take kindly to threats to fun­da­men­tal prin­ci­ples of prop­erty own­er­ship, even if some of them (though not most, polling shows) like the con­cept of the wall and the im­mi­gra­tion pol­icy Trump wants to pur­sue. It is not in­con­ceiv­able to think we are head­ing for an­other Kelo saga. The wall could lead to the back­lash of the cen­tury: a re­sis­tance move­ment laced with po­lit­i­cal, cul­tural, so­cial and eco­nomic con­se­quences. While Kelo’s land grab was for eco­nomic de­vel­op­ment, Trump’s wall is in ser­vice of a wrong­headed im­mi­gra­tion pol­icy. Surely this pub­lic pur­pose, like the one in Kelo, will in­flame the pas­sions of Amer­i­cans who see our coun­try as a sym­bol of democ­racy and in­clu­sion, not as an iso­la­tion­ist na­tion. Ger­ald S. Dick­in­son is an as­sis­tant pro­fes­sor at the Univer­sity of Pittsburgh School of Law.

Le­gal scholar Ger­ald S.

Dick­in­son on the dif­fi­cult fights over em­i­nent do­main that lie ahead


About 670 miles of fence, like this sec­tion in Ari­zona, al­ready runs along the U.S.-Mex­ico bor­der, gen­er­ally on fed­eral lands. Much of the rest of the bor­der is con­trolled by states and pri­vate prop­erty own­ers. To build his wall, Pres­i­dent Trump would have to make deals with all of them.

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