In South Texas, res­i­dents hold on to their land to re­sist a wall

The Washington Post - - FRONT PAGE - BY KATIE ZEZIMA AND MARK BERMAN

Nayda Al­varez wants noth­ing to do with any bor­der wall, but her acre of land in Rio Grande City, Tex., where she lives in a brown house along the di­vid­ing line be­tween the United States and Mex­ico, has be­come of great in­ter­est to the U.S. gov­ern­ment.

She, along with dozens of other landown­ers in the Rio Grande Val­ley, re­ceived sur­prise let­ters from the fed­eral gov­ern­ment in re­cent months, re­quests from of­fi­cials who are seeking ac­cess to their prop­er­ties for sur­veys, soil tests, equip­ment stor­age and other ac­tions.

It is, lawyers and ex­perts say, the first step in the gov­ern­ment try­ing to seize pri­vate prop­erty us­ing the power of em­i­nent do­main — a con­tentious step that could put a lengthy le­gal wrin­kle into Pres­i­dent Trump’s plans to build hun­dreds of miles of wall, some of which passes through

land like Al­varez’s.

Pre­vi­ous em­i­nent do­main at­tempts along the Texas bor­der have led to more than a decade of court bat­tles, some of which date to Ge­orge W. Bush’s ad­min­is­tra­tion and have yet to be re­solved. Many landown­ers, like Al­varez, are vow­ing to fight anew.

Al­varez re­fused to sign over ac­cess to her prop­erty, which was handed down from her grand­fa­ther. She yelled at her father for al­low­ing the gov­ern­ment onto his land. And she had a mes­sage for Trump, who vis­ited nearby McAllen on Thurs­day af­ter­noon: no bor­der wall — a phrase she wanted to write on her roof so Trump could see it if he flew over her home. She de­cided against it be­cause of rain.

“I’m against the wall be­cause I’m go­ing to get evicted by it,” said Al­varez, a 47-year-old high school teacher.

Efrén C. Oli­vares, racial and eco­nomic jus­tice program di­rec­tor at the Texas Civil Rights Project, said ap­prox­i­mately 100 landown­ers have re­ceived new gov­ern­ment let­ters seeking ac­cess to pri­vate prop­erty for the pur­poses of de­ter­min­ing how — and where — the wall could be built. The let­ters are the first of a two-step process the gov­ern­ment uses in cases of em­i­nent do­main, lawyers in­volved in the cases and ex­perts said. It first re­quests to sur­vey the land, a step to which landown­ers of­ten agree. If the land is suitable for the gov­ern­ment’s in­tended use, it moves to take the land ei­ther by per­suad­ing the own­ers to sell or turn­ing to the courts to force the sale.

In one let­ter a res­i­dent re­ceived from the gov­ern­ment, a copy of which was pro­vided to The Washington Post, the landowner was asked to pro­vide “ir­rev­o­ca­ble” en­try for 18 months.

South Texas res­i­dents are fa­mil­iar with this fight. When Bush signed leg­is­la­tion in 2006 known as the Se­cure Fence Act, au­tho­riz­ing hun­dreds of miles of fenc­ing along the U.S.-Mex­ico bor­der, court bat­tles quickly be­gan be­tween peo­ple in the re­gion and the gov­ern­ment.

But much of the land the Bush ad­min­is­tra­tion re­quested was already owned by the fed­eral gov­ern­ment, said Ger­ald S. Dick­in­son, an as­sis­tant pro­fes­sor of law at the Uni­ver­sity of Pitts­burgh who fo­cuses on land use and con­sti­tu­tional law. The wall Trump wants to build would be dif­fer­ent, he said.

“If it’s go­ing to be a con­tigu­ous wall across the en­tire south­west bor­der, you’re talk­ing about a mas­sive land seizure of pri­vate prop­erty,” he said. Most peo­ple, he said, are not will­ing to vol­un­tar­ily hand over their land, even with a fair mar­ket price, forc­ing the gov­ern­ment to go to court to ob­tain it. “You’re talk­ing about thou­sands and thou­sands of em­i­nent do­main pro­ceed­ings that would have to run through fed­eral dis­trict courts in Texas for the most part, but also places such as Ari­zona and New Mex­ico.”

Oli­vares said there were 334 em­i­nent do­main law­suits filed in South Texas dur­ing the Bush ad­min­is­tra­tion; ap­prox­i­mately 60 to 70 cases are still pend­ing from a decade ago, mostly re­gard­ing pay­outs.

The Texas Civil Rights Project is now try­ing to let peo­ple know that they are not re­quired to sign over ac­cess to their land. They are go­ing door-to-door in some neigh­bor­hoods, let­ting peo­ple know their rights, and they are run­ning dig­i­tal ads and spots on lo­cal ra­dio sta­tions. They also plan to host town-hall-style meetings.

“If you don’t have a lawyer, you’re just go­ing to get rail­roaded,” Oli­vares said. “We’re try­ing to make sure this isn’t go­ing to hap­pen.”

But there are hur­dles to chal­leng­ing the gov­ern­ment, he said, and courts of­ten side with fed­eral au­thor­i­ties when a seizure is re­lated to national se­cu­rity. One op­tion is a jury trial, but that can take months or years to com­plete, and it doesn’t nec­es­sar­ily stop the gov­ern­ment from tak­ing the land, he said. When the seizure is al­lowed, own­ers can dis­pute the amount of money they are of­fered, but Oli­vares said the gov­ern­ment of­ten files a mo­tion telling the court that it will pay what­ever the court de­ter­mines to be a fair amount, but they also ar­gue that they need im­me­di­ate ac­cess to the land.

The Trump ad­min­is­tra­tion, he said, has filed about 10 or 12 cases against landown­ers in South Texas ask­ing for ac­cess to the land to con­duct soil sam­pling and mea­sur­ing.

“It’s all in an­tic­i­pa­tion of tak­ing the land,” he said.

Trump has long de­fended us­ing em­i­nent do­main claims, which he once in­voked — un­suc­cess­fully — in try­ing to force a New Jersey widow from her At­lantic City home, say­ing that “with­out em­i­nent do­main, you wouldn’t have any high­ways.”

The At­lantic City Casino Rein- vestment De­vel­op­ment Au­thor­ity sent the woman a no­tice of­fer­ing her $250,000 for her prop­erty and threat­ened seizure un­der em­i­nent do­main.

Trump was try­ing to build a limou­sine park­ing lot next to his Trump Plaza casino.

A New Jersey court ruled against Trump and the au­thor­ity. The owner of the home later moved to Cal­i­for­nia and her house was sold at auc­tion and de­mol­ished — the empty lot sits be­hind the va­cant shell of the shut­tered Plaza.

Since tak­ing of­fice, Trump has con­tin­ued back­ing em­i­nent do­main, and last week he called it “a fair process” and “very nec­es­sary.” Fed­eral of­fi­cials would first try to make deals with landown­ers, Trump said, but if that doesn’t work, “we take the land, and we pay them through a court process — which goes, ac­tu­ally, fairly quickly. And we’re gen­er­ous. But we take the land.”

The gov­ern­ment tried to do just that after Bush signed the Se­cure Fence Act, and it wound up be­ing an issue for au­thor­i­ties, ac­cord­ing to a 2009 re­port from the De­part­ment of Home­land Se­cu­rity’s in­spec­tor gen­eral.

“Gain­ing ac­cess rights and ac­quir­ing non­fed­eral prop­erty has de­layed the com­ple­tion of fence con­struc­tion and may in­crease the cost be­yond avail­able fund­ing,” the watch­dog wrote, de­scrib­ing the act of tak­ing over prop­erty as “a costly, time-con­sum­ing process.”

U.S. Cus­toms and Bor­der Pro­tec­tion did not re­spond to ques­tions about the let­ters sent to landown­ers. Landown­ers have re­ceived let­ters from both the Army Corps of En­gi­neers and CBP.

CBP said in a let­ter sent to a res­i­dent that it wants ac­cess to the prop­erty to sup­port “bor­der in­fra­struc­ture au­tho­rized by Congress in the Fis­cal Year 2019 ap­pro­pri­a­tion” and other projects.

Those in court fight­ing the gov­ern­ment in­clude the Catholic Dio­cese of Brownsville, Tex., which is con­test­ing a re­quest to sur­vey land that in­cludes La Lomita Chapel, a small church built more than 150 years ago where Mass, wed­dings and fu­ner­als are held and a Palm Sun­day pro­ces­sion takes place each year.

Mary McCord, a vis­it­ing pro­fes­sor at Ge­orge­town Law and a for­mer Jus­tice De­part­ment of­fi­cial now work­ing on the dioce­san case, said Bishop Daniel E. Flores be­lieves al­low­ing the gov­ern­ment ac­cess to the prop­erty would be an im­plicit en­dorse­ment of al­low­ing it to take the land.

That, she said, would vi­o­late his firmly held re­li­gious be­liefs and Catholic doc­trine. Tak­ing the land to build a wall, McCord said, sub­stan­tially bur­dens the ex­er­cise of re­li­gion, and the gov­ern­ment has not ar­tic­u­lated a com­pelling rea­son it needs to build a wall there.

A per­son can­not be com­pelled, McCord said, “to par­tic­i­pate in some­thing that vi­o­lates their firmly held re­li­gious be­liefs.”

The gov­ern­ment filed a mo­tion ask­ing for the right to go on the prop­erty for up to a year to sur­vey the land. A hear­ing is sched­uled for Fe­bru­ary.

Al­varez also is gird­ing for a le­gal bat­tle, ready to pro­tect what is hers and to fight against what she be­lieves is an un­fair process. She feels as though politi­cians in Washington don’t un­der­stand the way of life in the Rio Grande Val­ley, where res­i­dents cross in­ter­na­tional bound­aries reg­u­larly and ride four-wheel­ers in the woods along the bor­der. And she does not want to leave her home.

“I think they as­sume we’re ig­no­rant. . . . They’re threat­en­ing. They say, ‘You sign, or we’ll take it away,’ ” she said. “This is my house.”

SER­GIO FLORES FOR THE WASHINGTON POST

The Catholic Dio­cese of Brownsville, Tex., is con­test­ing a re­quest by the U.S. gov­ern­ment to sur­vey land in­clud­ing La Lomita Chapel.

PHO­TOS BY SER­GIO FLORES FOR THE WASHINGTON POST

La Lomita Chapel, a his­toric land­mark in Mission, Tex., sits on land the gov­ern­ment is seeking to ac­cess in its quest to build a bor­der wall.

The pres­i­dent wants to build a bor­der wall through Nayda Al­varez’s prop­erty in Rio Grande City, Tex.

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