Wall faces hurdle of private land in Texas
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.