Wall faces hur­dle of pri­vate land in Texas

Houston Chronicle Sunday - - CITY | STATE - By Nick Miroff and Arelis R. Hernán­dez

The Trump ad­min­is­tra­tion has ac­quired just 16 per­cent of the pri­vate land in Texas it needs to build the pres­i­dent’s bor­der bar­rier, cast­ing doubt on his cam­paign prom­ise to com­plete nearly 500 miles of new fenc­ing by the end of next year, ac­cord­ing to the lat­est con­struc­tion data ob­tained by the Washington Post.

And of the 166 miles of bor­der bar­rier the U.S. gov­ern­ment is plan­ning to build in Texas, new con­struc­tion has been com­pleted along just 2 per­cent of that stretch a year be­fore the tar­get com­ple­tion date, ac­cord­ing to the data. Just 4 miles of the planned bor­der wall in Texas are on fed­eral land — the other 162 lie on pri­vate prop­erty.

Faced with pres­sure to meet Trump’s 500-mile cam­paign pledge, ad­min­is­tra­tion of­fi­cials have in­stead pri­or­i­tized the low­est-hang­ing fruit of the bar­rier project, ac­cel­er­at­ing con­struc­tion along hun­dreds of miles of flat desert ter­rain un­der fed­eral con­trol in West­ern states where the gi­ant steel struc­ture can be erected with rel­a­tive ease.

That has de­ferred the tougher work of adding miles of fenc­ing along the zigzag­ging course of the lower Rio Grande Val­ley, the na­tion’s busiest cor­ri­dor for il­le­gal cross­ings. There, along the wind­ing river’s edge, the land is al­most all pri­vately held, and the gov­ern­ment would need to ob­tain it — ei­ther via pur­chases or em­i­nent do­main — be­fore any con­struc­tion be­gins.

The gov­ern­ment has just started to con­tact dozens of landown­ers for per­mis­sion to visit their farms and ranches for sur­vey work along ma­jor stretches of the Texas bor­der.

David Acevedo, a rancher and busi­ness­man with a 180-acre prop­erty south of Laredo, said he does not want to lose land his grand­fa­ther bought more than a cen­tury ago. He has granted Bor­der Pa­trol agents ac­cess to his prop­erty, but he does not want a gi­ant steel struc­ture on it.

“I want bor­der se­cu­rity. Put up more cam­eras, sen­sors, send more agents and give them drones,” he said. “But we don’t need a wall.”

The ad­min­is­tra­tion has not had to rely on em­i­nent do­main to take any pri­vate land in South Texas thus far, ac­cord­ing to a Home­land Se­cu­rity Depart­ment of­fi­cial who spoke on the con­di­tion of anonymity be­cause the of­fi­cial was not au­tho­rized to pub­licly dis­cuss the project.

“South Texas brings unique chal­lenges when it comes to land ac­qui­si­tion and con­struc­tion,” the of­fi­cial said. “And we have a river to con­tend with.”

The of­fi­cial ac­knowl­edged that lit­i­ga­tion chal­leng­ing the use of mil­i­tary funds for the bar­rier has also ham­pered the gov­ern­ment’s abil­ity to ac­quire pri­vate land in Texas, but crews are still seek­ing ac­cess to prop­er­ties for sur­vey work.

“We’re con­tin­u­ing to move for­ward with ev­ery­thing we can legally do to get as close to the con­struc­tion start dates as pos­si­ble,” the of­fi­cial said.

As of mid-Oc­to­ber, the Trump ad­min­is­tra­tion has com­pleted 75 miles of new bar­rier, but that has gone to re­place smaller, older fenc­ing in West­ern states on land the gov­ern­ment al­ready con­trols.

The pres­i­dent, who ran on a prom­ise to make Mex­ico pay for the bar­rier, has ob­tained nearly $10 bil­lion in U.S. funds for the project since 2017, ac­cord­ing to the lat­est project data, in­clud­ing $3.6 bil­lion in di­verted mil­i­tary con­struc­tion funds and $2.5 bil­lion in re­pro­grammed coun­ternar­cotics money. A fed­eral court in El Paso ruled this month that the di­ver­sion of the funds to the bar­rier project was un­law­ful, a rul­ing that could put a crimp in the ad­min­is­tra­tion’s land ac­qui­si­tion plans.

In a state­ment Fri­day, U.S. Cus­toms and Bor­der Pro­tec­tion said 158 miles of bar­rier are un­der con­struc­tion, while an ad­di­tional 276 miles are in a “pre­con­struc­tion phase.” Se­nior CBP of­fi­cials say they re­main on pace to com­plete 450 miles of bar­rier by the end of 2020. At ral­lies, the pres­i­dent has told sup­port­ers it will be more. CBP of­fi­cials de­clined to com­ment.

A se­nior U.S. of­fi­cial with knowl­edge of the con­struc­tion plans said there are at least 100 landown­ers in Texas who will need to give up prop­erty for the project, and a small frac­tion so far have been sent of­fer let­ters. Many have yet to re­ceive “right of en­try” re­quests for the gov­ern­ment to be­gin sur­vey­ing. The of­fi­cial spoke on the con­di­tion of anonymity be­cause of the risk of los­ing their job.

Trump, who has de­manded fre­quent up­dates on the pace of con­struc­tion, has been warned by staff that build­ing the bar­rier on pri­vate prop­erty in Texas will be dif­fi­cult. The pres­i­dent has waved off those wor­ries, telling aides to “take the land.”

In re­cent weeks, the pres­i­dent’s son-in-law, Jared Kush­ner, and other White House of­fi­cials have met with Home­land Se­cu­rity lead­ers and U.S. Army Corps of Engi­neers staff to map out a strat­egy for ac­quir­ing pri­vate land as quickly as pos­si­ble. Fed­eral of­fi­cials have also be­gun meet­ing with small groups of prop­erty own­ers and their le­gal rep­re­sen­ta­tives to gauge their will­ing­ness to grant ac­cess to sur­vey­ors and work crews.

A few prop­erty own­ers have said pub­licly that they do not want to sell, wor­ried that the fence will limit ac­cess to the wa­ter­way that is the lifeblood of their crops and cat­tle. Oth­ers own parcels con­trolled jointly among mul­ti­ple heirs and fam­ily mem­bers with con­flict­ing views on whether to cede to the gov­ern­ment.

Many in the Laredo area say the bar­rier project rep­re­sents a threat to the ri­par­ian ecosys­tem and the cul­tural her­itage of ranch­ers, farm­ers and prop­erty own­ers along the Rio Grande. Com­mu­nity mem­bers in­sist that they also value bor­der se­cu­rity and the rule of law, which is why they al­low the Bor­der Pa­trol to ac­cess their land as part of their en­force­ment ef­forts.

The Rio Grande cre­ates a nat­u­ral bar­rier along nearly two-thirds of the 2,000-mile U.S.-Mex­ico bor­der, and its loop­ing bends and cir­cuitous course make it nearly im­pos­si­ble to build a lin­eal bar­rier along the in­ter­na­tional bound­ary.

In­stead, much fenc­ing will be set atop earthen lev­ees, many built decades ago, that were in­stalled to con­trol sea­sonal flood­ing. Be­cause the dis­tance be­tween the lev­ees and the banks of the Rio Grande can be a half-mile or more in some ar­eas, landown­ers have ex­pressed con­cern that a bar­rier would cre­ate large swaths of “no man’s land” where pri­vately held land will be walled off be­tween the bar­rier and the river. Such land is likely to be de­val­ued and in other cases could be­come use­less to own­ers.

Landown­ers who refuse to sell or at­tempt to hold out for a bet­ter price face the risk that the gov­ern­ment will seize their prop­erty, cit­ing U.S. na­tional se­cu­rity needs.

Ilya Somin, an ex­pert on em­i­nent do­main at Ge­orge Ma­son Univer­sity’s An­tonin Scalia Law School, said the gov­ern­ment has broad pow­ers to con­demn land and even to be­gin con­struc­tion work on prop­erty it seizes be­fore com­pen­sat­ing the owner.

If the gov­ern­ment and a prop­erty owner can­not agree on the amount, a court can es­tab­lish the prop­erty’s fair mar­ket value, but “a com­mon prob­lem is peo­ple don’t get as much money as the law says they should,” Somin said.

The gov­ern­ment tends to seek to ac­quire more land than it ac­tu­ally needs, he said, of­ten try­ing to “low-ball” prop­erty own­ers be­cause it knows they are wary of a drawn-out le­gal fight.

De­spite the pres­i­dent’s takethe-land di­rec­tive, Somin said there are le­gal ob­sta­cles to the ad­min­is­tra­tion’s abil­ity to quickly seize large amounts of pri­vate land in Texas over the com­ing months.

In ad­di­tion to the re­cent rul­ing on the di­ver­sion of mil­i­tary funds, the gov­ern­ment faces lim­its in its abil­ity to use em­i­nent do­main au­thor­ity for a project with fund­ing tied up in lit­i­ga­tion.

“It would be a ma­jor chal­lenge for them to get all that prop­erty quickly, given the se­ri­ous le­gal ar­gu­ments that they don’t have the right to use em­i­nent do­main,” Somin said.

And the gov­ern­ment has made lit­tle or no progress on sev­eral key stretches of Texas river­front where it plans to build. One seg­ment, known as Laredo 7, calls for 52 miles of bar­rier be­tween Laredo and Ea­gle Pass, but that project is zero per­cent com­plete, the lat­est records show, and its fund­ing is now tied up in a le­gal fight.

The bar­rier could up­end ranch­ing op­er­a­tions for some of the largest landown­ers in Texas. Many prop­er­ties with wa­ter rights rely on a sys­tem of 20th-cen­tury pumps built into the river’s edge that re­quire con­stant main­te­nance and mon­i­tor­ing to keep wa­ter flow­ing to crops and fields. A wall, they said, would com­pro­mise ac­cess to the river for not only the pumps but also cat­tle graz­ing and re­cre­ation. It also prob­a­bly would af­fect prop­erty val­ues.

Mark Mul­li­gan / Staff file photo

The Rio Grande runs be­tween Mex­ico, left, and the U.S. near Del Rio in 2017. Only 4 miles of the planned bor­der wall in Texas are on fed­eral land — the other 162 miles sit on pri­vate prop­erty.

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