U.S./Mexico Border Wall: The Past, the Present and What May Come

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1 U.S./Mexico Border Wall: The Past, the Present and What May Come Nicholas P. Laurent Christopher J. Oddo Roy R. Brandys Blaire A. Knox BARRON, ADLER, CLOUGH & ODDO, LLP 808 Nueces Street Austin, Texas (512) (512) (fax) October 13, 2017 Barron, Adler, Clough & Oddo, LLP is a boutique law firm with offices in Austin and Houston, Texas that practices exclusively in the area of eminent domain, condemnation, inverse condemnation, and regulatory takings of property. The firm s lawyers represents clients throughout Texas and have successfully handled eminent domain cases for a variety of landowners including individuals, Fortune 500 publicly traded companies, business owners, tenants, and public agencies and entities. The cases the firm s lawyers have handled cover a broad spectrum of properties, ranging from residential, commercial, and industrial properties to vacant land and special use properties. With a combined 80+ years of experience in eminent domain and regulatory takings, lawyers with the firm are routinely asked to educate the community, professional organizations and politicians on eminent domain issues and emerging case law and have assisted in both drafting and advancing legislation to protect landowners. Page 1 of 14

2 U.S./Mexico border wall: the past, the present and what may come A. Background on the United States/Mexico border and the first physical barriers Long before the 1854 Gadsen Purchase formalized the last segment of the current border between the United States and Mexico, the two countries shared some variation of an international border. Today, the United States/Mexico border stretches 1,954 miles. More than 350 million people cross the border annually, making it the most frequently crossed international border in the world. Approximately $229 billion in goods and merchandise also cross the United States/Mexico border annually. Trade in Goods with Mexico, United States Census Bureau, see also Christopher Wilson and Duncan Wood, Understanding U.S.-Mexico Economic Ties, Forbes (Sept. 26, 2016), ( Our study concludes that the economic relationship with Mexico, though not without its challenges, provides concrete benefits, strengthening the competitiveness of American firms, creating jobs in the United States, and generating savings for the average American family. ). Although a significant amount of goods and merchandise legally cross the border each day, large quantities of goods and merchandise are also transported across the border illegally. Additionally, some government reports indicate that more than 200,000 people cross the border annually without obtaining legal authority for the crossing. David Ingold, Chloe Whiteaker, Mira Rojanasakul, Hannah Recht and Dean Halford, Here s What We Need to Know About Trump s Border Wall, Bloomberg Politics (Feb. 13, 2017), trump-mexico-wall/how-many-people-currently-cross/. Illegal border crossings are contained almost exclusively to the border between the United States and Mexico, with approximately 96.6% of apprehensions by the Border Patrol in 2010 occurring on the southern border. Nearly half of those apprehensions occurred near the southern tip of Texas. To curb unauthorized border crossings, the first formal physical barrier along the United States/Mexico border was built in 1990 to deter illegal entries and drug smuggling in [the Border Patrol s] San Diego sector. The ensuing 14-mile-long San Diego primary fence formed part of the USBP s Prevention Through Deterrence strategy, which called for reducing unauthorized migration by placing agents and resources directly on the border along population centers in order to deter would-be migrants from entering the country. Border Security: Barriers Along the U.S. International Border, Congressional Research Service (Mar. 16, 2009), In an attempt to further stem the flow of illegal goods and persons across the southern border, in 1994 the Immigration and Naturalization Service (the INS ) 1 approved a national strategy to prevent illegal entry along the United States southern border that would build on the agency s success in San Diego and El Paso. See Border Control: Revised Strategy is Showing Some Positive Results, Reportnum GGD (December 29, 1994) The strategy followed a study 1 The INS is now part of Customs and Border Protection, a division of the Department of Homeland Security. Page 2 of 14

3 commenced by the National Drug Control Policy that recommended using (1) multiple physical barriers in certain areas to prevent entry and (2) additional highway checkpoints and other measures to prevent drugs and illegal aliens that succeeded in entering the United States from leaving border areas. Id. The strategy urged by INS was implemented by the construction of a series of physical barriers separating the United States from Mexico, with most of the physical structures built in more populated areas like San Diego, California, El Paso, Texas, and McAllen, Texas. B. The Secure Fence Act of 2006 In 2005, a plan was proposed in the House of Representatives calling for the construction of a reinforced fence along the entire United States/Mexico border, which would have also included a 100 yard border zone on the United States side of the border. The progeny of that plan, the Secure Fence Act of 2006 (the Act ), was passed by Congress and signed into law by President Bush in October of See Pub. L th Congress; 8 U.S.C and 14 U.S.C At the time the Secure Fence Act of 2006 was signed, President Bush stated [t]his bill will help protect the American people. This bill will make our borders more secure. It is an important step toward immigration reform. Fact Sheet: The Secure Fence Act of 2006, The Act authorized the construction of hundreds of miles of additional fencing along the southern border, authorized additional vehicle barriers and checkpoints, authorized advanced technology like cameras, satellites, and drones, and doubled funding for border security. See Pub. L th Congress; 8 U.S.C and 14 U.S.C The Act originally provided for at least two layers of reinforced fencing to be built, however the layered approach to the construction of the border fence was abandoned following amendments to the original Act. Specific to Texas, the Act calls for the building of fencing of 176 miles between Laredo to Brownsville, 51 miles from Del Rio to Eagle Pass, and 88 miles from El Paso to Columbus, New Mexico. Al Tompkins, Monday Edition: 700-Mile Fence (Oct. 29, 2006), By April of 2009, according to the New York Times, the Department of Homeland Security had erected about 613 miles of new pedestrian fencing and vehicle barriers to thwart illegal border crossers and drug smugglers. April Reese, U.S.-Mexico Fence Building Continues Despite Obama s Promise to Review Efforts, New York Times (April 16, 2009), In May of 2011, President Obama declared that the fence along the border with Mexico is now basically complete. Robert Farley, Obama Says the Border Fence is Now Basically Complete, PolitiFact (May 16, 2011), According to PolitiFact, Department of Homeland Security officials have said the Department had finished 649 out of the planned652 miles of fencing (99.5%), which includes 299 miles of vehicle barriers and 350 miles of pedestrian fence. See id. Page 3 of 14

4 C. The REAL ID Act Following delays in the construction of a secondary fence parallel to the United States/Mexico border in San Diego attributable to environmental concerns, Congress passed the REAL ID Act. See 8 U.S.C. ch. 12. Under Section 102 of the REAL ID Act, the Secretary of Homeland Security was authorized to waive all legal requirements in order to expedite the construction of border barriers. See Section 102 of the REAL ID Act of 2005, Pub. L. No , 119, Stat. 231, 306, 8 U.S.C The REAL ID Act also limits judicial review of claims arising from the Secretary s exercise of the waiver authority and it allows district courts to consider only those claims that allege a violation of the Constitution. See REAL ID Act 102(c), 8 U.S.C note. Following enactment of the REAL ID Act, the Secretary waived legal and environmental requirements to complete construction of the San Diego portion of the border fence as part of the Secure Fence Act of See, e.g., 72 Fed. Reg. 60,870 (Oct. 26, 2007); 8 U.S.C note. The waiver of legal and environmental requirements pursuant to the REAL ID Act allowed the federal government in constructing the border wall to completely avoid compliance with, for example, the National Environmental Policy Act of 1969, 42 U.S.C. 4321, et seq., the Endangered Species Act, 16 U.S.C. 1531, et seq., the National Historic Preservation Act, 16 U.S.C. 470, et seq., the Clean Air Act, 42 U.S.C. 7401, et seq., the Safe Drinking Water Act, 42 U.S.C. 300f, et seq., CERCLA, 42 U.S.C. 6901, et seq., and other similar federal laws that provide for specific analysis and mitigation of environment and other negative effects as part of federal projects. The Secretary s waiver of all environmental and other requirements under the REAL ID Act has withstood Constitutional separation of powers and other challenges in federal court. See, e.g., Defs. of Wildlife v. Chertoff, 527 F. Supp. 2d 119, 120 (D.D.C. 2007); Cty. of El Paso v. Chertoff, No. EP-08-CA-196-FM, 2008 WL , at *4 (W.D. Tex. Aug. 29, 2008); Save Our Heritage Org. v. Gonzales, 533 F. Supp. 2d 58, (D.D.C. 2008). D. Condemnation of private property for construction of physical border barriers 1. Condemnation in federal court generally The Supreme Court has long recognized the eminent domain powers of the federal government. As early as 1875, the Court explained: It has not been seriously contended during the argument that the United States government is without power to appropriate lands or other property within the States for its own uses, and to enable it to perform its proper functions. Such an authority is essential to its independent existence and perpetuity. These cannot be preserved if the obstinacy of a private person, or if any other authority, can prevent the acquisition of the means or instruments by which alone governmental functions can be performed. The powers vested by the Constitution in the general government demand for their exercise the acquisition of lands in all the States. Page 4 of 14

5 These are needed for forts, armories, and arsenals, for navy-yards and light-houses, for custom-houses, post-offices, and court-houses, and for other public uses. If the right to acquire property for such uses may be made a barren right by the unwillingness of property-holders to sell, or by the action of a State prohibiting a sale to the Federal government, the constitutional grants of power may be rendered nugatory, and the government is dependent for its practical existence upon the will of a State, or even upon that of a private citizen. This cannot be. Kohl v. United States, 91 U.S. 367, 368 (1875); see also U.S. v. Gettysburg Electric Ry. Co., 160 U.S. 668, 679 (1896) (The United States has authority to condemn land whenever it is necessary or appropriate to use the land in the execution of any of the powers granted to it by the constitution. ). Thus, [t]he United States has the authority to take private property for public use by eminent domain, but is obliged by the Fifth Amendment to provide just compensation to the owner thereof. Kirby Forest Indus., Inc. v. U.S., 467 U.S.1, 9 10 (1984) (citing Kohl, 91 U.S. at 371). Historically, the federal government has used its condemnation authority for construction of public buildings, to supply water, to maintain navigable waters, to establish park space, to produce war supplies, and to conduct other public infrastructure projects. In the last fifteen years, the federal government has also used its power of eminent domain to strengthen the border between Mexico and the United States. The procedures governing federal condemnation proceedings are located in Federal Rule of Civil Procedure 71.1 (formerly Rule 71A), discussed in more detail below. 2. Unique substantive and procedural issues in border wall condemnation cases In prior border wall cases, the acquisition process has typically been handled by the United States Army Corp of Engineers. The acquisition process usually begins with an offer styled as if the landowner had made an offer to sell his/her property to the government, rather than an offer from the government to acquire property from the landowner. If the parties are unable to reach an agreement on a voluntarily conveyance, Assistant United States Attorneys typically represent the government. a. Procedural issues i. The complaint The Federal Rules of Civil Procedure require the complaint to name as defendants both the property, designated generally by kind, quantity, and location, and at least one owner of some part of or interest in the property. FED. R. CIV. P. 71.1(c)(1). The style of the case, then, typically appears as follows: United States v acres, more or less, located in Cameron County, Texas, and Jane Smith. The complaint must contain a short and plain statement of the authority for the taking, the uses for which the property is being taken, a description sufficient to identify the property, the Page 5 of 14

6 property interests to be acquired, and for each piece of property, a designation of each defendant who has been joined as an owner or owner of an interest in it. FED. R. CIV. P. 71.1(c)(2). The condemnor must effect personal service of the notice of condemnation on all defendants whose address is known and who resides in the United States or its territories. FED. R. CIV. P. 71.1(d)(3). ii. The answer An answer by the defendant is required within twenty-one days of service. FED. R. CIV. P. 71.1(e)(2). The failure to answer constitutes consent to the taking and to the authority of the court to proceed to hear the action and fix compensation. The answer, then, should of course be promptly filed so as to preserve potential challenges to the taking and to contest compensation. The answer should identify the property in which the defendant claims an interest, state the nature and extent of the interest claimed, and state all of the defendant s objections and defenses to the taking of the property. FED. R. CIV. P. 71.1(e)(2). Any objection or defense not plead in the answer is waived, so if the defendant plans to challenge the right to take that challenge must be timely pled in the answer. FED. R. CIV. P. 71.1(e)(3). If a defendant has no objection or defenses to assert, he should still file a notice of appearance to participate in the condemnation proceeding. FED. R. CIV. P. 71.1(e)(1). At the trial of just compensation, irrespective of whether the defendant has previously appeared or answered, the defendant may still present evidence as to just compensation and may share in the distribution of the ultimate award of compensation. iii. Trial of the issues In a federal condemnation proceeding, the court tries all issues, including compensation, except when compensation must be determined (a) by any tribunal specially constituted by a federal statute to determine compensation, or (b) if there is no such tribunal, by a jury when a party demands one within the time to answer or within any additional time the court sets, unless the court appoints a commission. FED. R. CIV. P. 71.1(h). Although the Federal Rules of Civil Procedure contemplate a commission that could determine compensation owed in a taking, federal courts have held that requests for jury trials are given significant deference. See, e.g., Questar Southern Trails Pipeline Company v Acres of Land, 194 F.Supp. 2d 1192, 1193 (D.N.M. 2002) ( The Tenth Circuit outlined the parameters for appointment of a commission long ago: litigants should have the right of trial by jury [except] in extraordinary and exceptional cases and the commission should be employed only in exceptional cases where because of peculiar circumstances trial by jury was inadvisable.... While the Tenth Circuit has recognized exceptional, extraordinary and/or peculiar circumstances sufficient to allow the appointment of commissioners, jury trial is, then, still the standard. (quoting United States v. Theimer, 199 F.2d 501, 503 (10th Cir. 1952)). Ultimately, though, there is no right to a jury trial in a federal condemnation case. U.S. v. Reynolds, 397 U.S. 14 (1970). Page 6 of 14

7 iv. Dismissal The government has the right to voluntarily dismiss the condemnation proceeding, so long as no compensation hearing has begun and it has not taken title or possession of the property. The court also may dismiss the condemnation proceeding, but if possession or title has already been taken, then the court must award the landowner just compensation upon the dismissal. FED. R. CIV. P. 71.1(i). Notably, if the government proceeds under the quick take statute, 40 U.S.C. 3114, it does not have the option of dismissing the action because it has already taken title to the property and a Congressional act is required to dispossess the government of property. Federal Land Ownership: Acquisition and Disposal Authorities, Congressional Research Service, , RL34273 (May 19, 2015), v. Deposit and its distribution The government must deposit with the court any money required by law as a condition to the exercise of condemnation power and may make a deposit when allowed by statute. FED. R. CIV. P. 71.1(j)(1). After a deposit, the court and litigants must expedite the proceedings so as to distribute the deposit and to determine and pay compensation. FED. R. CIV. P. 71.1(j)(2). If the compensation finally awarded to a defendant exceeds the amount distributed to that defendant, the court must enter a judgment against the government for the deficiency. Id. If the compensation awarded to a defendant is less than the amount previously distributed to that defendant, the court must enter judgment against that defendant for the overpayment. Id. b. The Declaration of Taking Act The Declaration of Taking Act, 40 U.S.C. 3114, provides that in any condemnation action brought by the federal government, the government can file a declaration of taking notice. 40 U.S.C. 3114(a). Upon the filing of the declaration of taking along with a deposit of an estimate of just compensation for the taking into the registry of the court, title to the property immediately vests in the government. Id. 3114(b)(1). The Declaration of Taking Act has specific pleading requirements. See id. 3114(a)(1). The declaration of taking must contain: (1) a statement of the authority under which, and the public use for which, the land is taken; (2) a description of the land taken that is sufficient to identify the land; (3) a statement of the estate or interest in the land that is taken; (4) a plan showing the land taken; and (5) a statement of the sum of money estimated by the acquiring authority to be just compensation for the land taken. Id. As noted above, upon filing a declaration of taking along with a deposit of an estimate of just compensation in the court registry, title immediately vests with the government. Id. at 3114(b)(1). Consequently, after filing a declaration of taking the government cannot simply dismiss the condemnation proceeding because divestment of property by the government requires a Congressional Act. Federal Land Ownership: Acquisition and Disposal Authorities, Congressional Research Service, , RL34273 (May 19, 2015), Page 7 of 14

8 If the government does seek to dismiss a declaration of taking case for some reason and return title to the landowner, the landowner must agree to the revestment. See id. 3114(b)(2) (upon filing of declaration and deposit, the land is condemned and taken for use by the government ). In a declaration of taking case, the court is to fix the time within which, and the terms on which the parties in possession are required to surrender possession of the sought-after property to the government. Id. 3114(d)(1). The court may also issue any other just and equitable orders in respect of encumbrances, liens, rents, insurance, and so on. Id. 3114(d)(2). c. Discovery issues Discovery in federal condemnation matters is controlled by the general rules of discovery applicable to all other civil cases. See generally FED. R. CIV. P. 26. The terms and deadlines for the exchange of appraisal and other expert reports will be set by the court and can vary greatly from case to case depending on the court. It is very common for the court to require the simultaneous exchange of appraisal and other expert reports, so the landowner may never see the government s appraisal report until the mutual exchange is made. d. Pre-condemnation appraisal reports During the acquisition process, typically handled by the United States Corp of Engineers, the government must have obtained an appraisal report along with an internal appraisal review before making an offer to a property owner (unless the acquisition is excused from the Federal Uniform Relocation and Real Estate Acquisition Act, 42 U.S.C. 4601; 49 C.F.R. Part 24). The federal government, however, uniformly takes the position that this appraisal work and report are prepared in anticipation of litigation and therefore are not discoverable. See, e.g., Wa. Metro. Area Transit Auth. v. One Parcel of Land in Prince George s Cty., Md., 342 F. Supp. 2d 378, 380 (D. Md. 2004) ( WMATA argues that the report of the pre-condemnation appraiser was prepared in anticipation of litigation, and that under Federal Rules of Civil Procedure 26(b)(3) and 26(b)(4)(B), Defendants must show a substantial need or exceptional circumstances in order to compel discovery ). The appraisal report obtained by the federal government is not produced with the government s offer, as is common in most condemnation proceedings under state law. See, e.g., TEX. PROP. CODE In ensuing litigation, the government will almost assuredly fight to never have to disclose this appraisal. Federal courts have split on whether this appraisal report must be produced. See, e.g., Wa. Metro. Area Transit Auth., 342 F. Supp. 2d at 380 ( Judge Grimm s conclusion that the appraisal was not prepared in anticipation of litigation was a factual determination.... [and] [t]his Court does not find Judge Grimm s factual conclusion to be clearly erroneous, but the Court also concludes that such a finding was not necessary because, as a matter of law, the appraisal report was not produced in anticipation of litigation. ); United States v. Block 44, Lots 3, 6, Plus W. 80 Feet of Lots 2 & 5, 177 F.R.D. 687, 690 (M.D. Fla. 1997) ( The Court is persuaded that defendant is entitled to discovery of the precondemnation appraisal and valuations by the United States. ); Hoover v. U.S. Dep t of the Interior, 611 F.2d 1132, 1142 (5th Cir. 1980) (In FOIA case, [a]s the Page 8 of 14

9 cases cited above have shown, the government enjoys a qualified privilege protecting the contents of the appraisal report in condemnation proceedings. ). 3. Limited information and market data Compensation in condemnation cases is typically divided into three well-recognized categories: (1) compensation for the taking itself, (2) damages to the remainder, and (3) costs to cure. The value of the property taken can often be determined with relative certainty by analyzing sales in the marketplace and making adjustments so as to render the market data comparable to the subject property being considered. Similarly, costs to cure, which often involve costs incurred to restore the subject property after the taking (i.e., fences, utility connections, etc.) can often be determined with relative certainty because costs to cure are usually hard costs that will actually be incurred. Bids can be obtained from contractors and the like to establish the costs. Damages to the remainder present a more complicated question because the taking may have dramatically different effects on remainder property in each case. One major issue in evaluating remainder damages on parcels taken as part of the border wall flows from the lack of market data that would qualitatively show the effect the imposition the border wall has on the market value of remainder property. Without significant and reliable market data, it can be difficult to assess the remainder damages caused by the taking because, for example, the appraisers hired by the government or the landowner face difficulties in performing a paired sales analysis to isolate the critical variable (the border wall) as part of an appraisal assignment. Additionally, it may be difficult to determine compensation for easements taken by the government. This is because access and other related easements are rarely granted in the real estate marketplace because access issues are now rare, having been addressed by landowners many years or even decades ago. As one appraiser often hired by the government as part of the border wall takings noted: [c]oncluding market value of easements is always difficult as they are seldom granted in the area since access issues were established long ago. Few, if any, comparable sales that will provide a true and accurate comparison are not occurring. E. Past takings under the Secure Fence Act of 2006 In 2008, following the enactment of the Secure Fence Act of 2006, the government filed approximately 400 condemnation actions the Texas Rio Grande Valley area. The government elected to proceed with declarations of taking so the government was immediately vested with title upon the initial filings along with deposits of the government s estimate of just compensation. Interestingly, the declaration of taking filings following the enactment of the Secure Fence Act of 2008 typically did not include legal description of the takings (despite the requirement in FED. R. CIV. P. 71.1(c)(2)), and it quickly became apparent that little title work was completed prior to the flings. Moreover, the filings did not contain any information as to what access would be allowed or restricted, other than a general statement that the government did not intend to deny access to remainder land. Page 9 of 14

10 The takings that followed the Secure Fence Act of 2006 included farms, homesteads, nature conservancy land, and some commercial land. The parent tracts upon which land was taken for the border wall also varied dramatically, from small parcels of less than an acre to much larger several thousand acre tracts. The primary compensation differentials in these cases related to situations where land and occasionally improvements were severed by the border fence. In many instances, the border wall created a physical barrier on a landowner s property that separated barns, equipment sheds, irrigation pumps, and even home-sites from the northern side of the border wall. Thus, impairment of access became a critical issue both in terms of logistics and compensation. Many of the border wall segments built as a result of the Secure Fence Act of 2006 still have intentional gaps in the wall, designed with a funneling effect. The government has indicated that gates are planned for the intentional gaps in the wall, however gates have still not been installed in many locations, and there is significant uncertainty regarding where the gates will be installed, who will possess the codes or keys to open the gates, if the gates can be opened by city or county emergency personnel, and where key pads will be located (or if key pads will even be used at all). F. Negative effects of a physical border barrier 1. Separating property on the river-side of the physical border barrier It is commonly believed that the border wall in Texas is built on the banks of the Rio Grande River, creating a physical barrier to preclude illegal crossings across the Rio Grande River. This common belief is inaccurate as a result of an international treaty between the United States and Mexico that precludes the building of any permanent structures within the floodplain of the Rio Grande River. See 22 U.S.C. 277d 34 (American-Mexican Boundary Treaty). In many instances, the border wall is several hundred yards to several miles from the Rio Grande River, which effectively severs large parcels into two pieces, an orphaned river parcel and a northern parcel. See, e.g., Brendan Mohler, Fence Dividing U.S./Mexico Border Puts Popular Course Out of Business (Dec. 14, 2015), 2. Environmental concerns The primary objective in building a physical border barrier is of course to physically preclude the movement of persons and objects over the barrier. This objective has been successful in some regards, but has also fragmented the habitat of wildlife and otherwise precluded the free travel of wildlife. In a study authored by several scholars from the University of Texas at Austin, Yale University, and the University of California, San Diego, the scholars noted: [R]esearch demonstrates that dispersal barriers need not be entirely impermeable to have strong effects on populations. Species with poor dispersal across the border Page 10 of 14

11 might have reduced gene flow between populations (Keller & Largiader, 2003), which can lead to drift-caused genetic divergence between populations (Mills & Allendorf, 1996) and rapid loss of genetic diversity in small isolated populations (Epps et al., 2005; Jacquemyn et al.,2009). Smaller isolated populations may also be subject to an increased risk of extinction (Shaffer, 1981; Pimm, 1991; Purvis et al., 2000). Populations near species range margins are often of low density (Brown, 1984) and might be similarly vulnerable if isolated by dispersal barriers. Even slight decreases in dispersal may have large consequences for species populations such as extinction of a low-density metapopulation (Levins, 1970).... Our species-level analysis centered around two related aspects of risk: (1) loss of population interconnectivity owing to a reduction in dispersal across the border and (2) reduction ineffective population sizes subsequent to loss of connectivity.... At the global scale, we deem two groups of species as most at risk. First, species already listed as threatened by the International Union for the Conservation of Nature (IUCN) or by both the US and Mexican governments are at risk from a loss of connectivity (risk G1, Fig. 1). Second, species with small geographic ranges that are bisected into evenly sized populations are at high risk because this scenario produces the smallest remnant populations and ranges (risk G2). Species with small ranges are typically at greater risk of extinction than large-ranged species (Purvis et al., 2000). At a local scale, we associate risk with remnant populations that are separated from the rest of the species range by barriers along the border.... Pedestrian barriers might pose a more immediate threat to border conservation than land use change because of the rapid speed with which pedestrian barriers have been constructed(~ 800 km in ~ 2 years; Government Accountability Office, 2009).... Under the REAL ID Act of 2005, the Secretary of the DHS has authority to fence the entire border at any time without the oversight of environmental regulatory law that regulates all other infrastructure projects (USLOC, 2005b). This lack of oversight is detrimental to biodiversity conservation efforts and increases the importance of further research on the impacts of barriers along international borders. The REAL ID Act should be amended to reinstate environmental regulation of border security efforts. Jesse R. Lasky, Walter Jetz & Timothy H. Keitt, Conservation biogeography of the US Mexico border: a transcontinental risk assessment of barriers to animal dispersal (first published online March 3, 2011; in July 2011), Volume 17, Issue 4, pp , see also Melissa Gaskill, United States border fence threatens wildlife: Barrier between the United States and Mexico divides habitats and puts species at risk, Nature (August 2, 2011), ( The border barrier affects 60% to 70% of the habitat in the South Texas Wildlife Refuge Complex, which includes the Laguna Atascosa, Lower Rio Grande Valley and Santa Ana National Wildlife Refuges ) Page 11 of 14

12 3. Access issues To fulfill the objective of precluding persons from easily traversing the border barrier Department of Homeland Security tactical guidelines mandate that the border wall extend at least eighteen feet above the applicable grade on the south side of the wall so as to minimize any attempts to cross over the border wall structure. While the real objective may be to preclude unauthorized persons from easily traversing the border wall, the design of the border wall also precludes or impairs those who are authorized to cross it. Most of the existing border wall structures built following the Secure Fence Act of 2006 were constructed along or on top of the International Boundary and Water Commission ( IBWC ) flood control levees, which were originally built to protect the lower Rio Grande Valley from flooding. In most instances, before the border wall was built the IBWC levee was a simple earthen berm built to a certain elevation so as to control floodwaters from the Rio Grande River, but built in compliance with the treaty between the United States and Mexico regarding the diversion of floodwaters. See 22 U.S.C. 277d 34 (American-Mexican Boundary Treaty). A gravel or caliche dirt road was typically located atop the IBWC levee. Although the road atop the IBWC levee was not technically a public road, IBWC policy allowed landowners to traverse the levee road and use the levee road to access their property. To access property alongside the IBWC levee, earthen ramps were often built up or the landowners would just drive down the slope of the levee. An appraiser hired by the government as part of many border wall takings has noted [i]t is a rather unusual situation since the levee roadway has long been considered the best method of access to the River farms and its use has been mostly uncontested.... [T]he roadway atop the levee is not public but the IBWC has historically allowed owners and tenants to use the road for access. When the border wall was built along or on top of the IBWC levee, the IBWC levee road was removed and a road was installed along most segments of the border wall. In these cases, it became physically impossible to turn off of the road along the border wall because of the physical barrier created by the border wall itself. Stated another way, it is now possible to drive alongside the border wall on parallel roads that were built as part of the border wall project, but a landowner cannot simply turn off these roads and gain entry into or exit his property given the physical barrier created by the border wall itself. Instead, a landowner would need to cross the border wall at one of the designated gaps in the structure, where gates were placed (assuming of course the landowner had authority to open the gate and/or the gate has not been permanently or temporarily secured by the Border Patrol), or by traveling to the terminus of the particular border wall segment. Even if a landowner were to own property where access is provided by an opening in the border wall or a gate, the landowner would often be required to approach the opening or the gate on a ramp parallel to the opening or gate, make a 90 degree turn to pass through the opening or gate itself, then make another 90 degree turn to travel down another ramp parallel to the opening or gate. Navigating these sort of turns is, at best, inconvenient. In many instances the landowner had historically crossed over the IBWC levee using heavy farm equipment that is simply unable to navigate up and down the parallel ramps Page 12 of 14

13 installed during the border wall construction, nor is the equipment able to make the 90 degree turns necessary to cross over the border wall. Thus, the changed nature of access to property on the river side of the border wall can have a significant effect on the market value of the property adjacent to or burdened by the border wall. Moreover, in some instances landowners have lost all legal access to parcels located on the south side of the border wall, which may preclude the landowner from ever being able to sell the property, or obtain a mortgage or lien on the property. Appraisers hired by both the government and the landowner on past border wall cases have agreed that access issues do impact valuation of property affected by the border wall. For example, an appraiser for the government has noted in describing a comparable sale that [t]he tenant was an interested buyer of the property and did buy other land from the seller. However, he confirmed that the property s lack of access caused him to withdraw. Similarly, an appraiser hired by landowners on border wall cases has concluded [t]he takings for the construction of a border fence create various use restrictions on the remainder properties. As an example, that same appraiser has noted: Should access only be allowed to the landowner, emergency personnel, and the border patrol, as at least one of the official statements above indicates, and should strict adherence be mandated that landowners could not allow employees, contract workers, vendors, hunters, and invited guests to have access to their remainder property, the remainder properties will incur greater damages than I have indicated. 4. Fear and uncertainty regarding the physical border barrier and gates Another important consideration that appraisers hired by both the government and landowners have agreed upon is fear and uncertainty regarding the ability to escape from criminal activity on the south side of the border wall. While criminal activity obviously has been occurring along the Rio Grande River for many years, and of course is not brought about by construction of the border wall itself, market participants have expressed concerns regarding the limiting effect the border wall may have on those who seek to move safely from the south side of the wall to the north side. As an appraiser hired for the government explained: The border fence did not create those security issues [along the Rio Grande River] which have been present for many years. However, there is concern expressed by many that the gates in the fence will hinder ones ability to leave the area when the activities are encountered. F. Current status of condemnation matters regarding the border wall As part of construction of the border wall following the Secure Fence Act of 2006, the federal government filed several hundred statutory condemnation suits, mostly in Cameron County, Texas and Hidalgo County, Texas. Many of those cases have since been resolved, but there are still some outstanding cases. Additionally, in Hidalgo County, Texas, as part of the construction of the border wall following the Secure Fence Act of 2006, the Department of Homeland Security built the border wall where the IBWC flood levee is located in cooperation with Hidalgo County and the Hidalgo Page 13 of 14

14 County Drainage District No. 1. Under this arrangement, the Hidalgo County Drainage District No. 1 provided significant funding for the project, which included flood control improvements, and the federal government contributed funds for construction of the border wall components of the project. The IBWC only had authority to build flood control improvements under the easements and other conveyance instruments executed many years ago, but the IBWC nevertheless granted easements to the Department of Homeland Security to build the border wall. Property owners adjacent to and burdened by the IBWC flood control levees have filed an inverse condemnation suit against the federal government, arguing that construction of a national security border wall where authority had only been granted to build a flood control levee exceeds the scope of the easements previously granted and thus constitutes a taking. At least one such inverse case is currently pending in the United States Federal Court of Claims. See, Gerald E. Bell, et al. v. United States, Case 1:13-cv PEC; in the United States Federal Court of Claims. G. What might the future hold? There is considerable speculation about any expansion of the existing segments of the border wall. During the 2016 Presidential campaign, then-candidate Donald Trump promised to oversee the building of a border wall along the entire 2,000 mile United States/Mexico border. Phillip Bump, Donald Trump s Mexico border wall will be as high as 55 feet, according to Donald Trump, Washington Post (February 26, 2016) These campaign promises may have been ambitious, but President Trump has made it clear that the border wall, at least in part, is still one of his priority agenda items. Moreover, as one of his first acts in office, President Trump signed Executive Order that directs a wall to be built along the United States/Mexico border. See Executive Order (January 25, 2017), (orders directs executive departments and agencies to deploy all lawful means to secure the United States southern border, to prevent further illegal immigration into the United States, and to repatriate illegal aliens swiftly, consistently, and humanely and directs the Secretary of Homeland Security to secure the southern Border of the United States of America ). It remains to be seen if a border wall stretching along the entirety of the 2,000 mile United States/Mexico border will eventually be funded and constructed, given significant public and Congressional outcries. Page 14 of 14