Tuesday, January 8, 2019

Build Border Wall Only On Federal and State Land

Source: CATO Institute, USA Today, Geography of Border Wall, Reuters, Business Insider, Texas Tribune, ProPublica

However much Trump and his supporters might want the border wall to be a continuous physical barrier their fantasy will inevitably run into logistical and constitutional problems that will make it a piece meal wall at best. A continuous border wall would be feasible if the entire stretch of the southern border was nothing but flat desert land but it's not. The southern border includes mountain ranges like the Jacumba Mountains, bluffs and canyons like the Rio Grande Canyons, lakes like Lake Amistad, and Peninsular U.S. cities like Los Ebanos, which is enveloped on three sides by the Rio Grande river, that would be cut off from the rest of the country by a continuous border wall and did I mention a certain river that would erode any border wall every time it floods its banks. Of course, geography isn't the only problem for a continuous border wall. Two-thirds of the land along the southern border, mostly in Texas,is owned by private landowners, Indian tribes, and state governments. If we assume the Army Core can easily obtain permission from states, especially Texas, that still leaves unwilling private landowners and tribal governments who are almost unanimous in their unwillingness to allow a border wall.

Since the government shutdown, Trump has contemplated declaring a national emergency so he could mobilize U.S. troops and use the DOD budget to build the border wall. He has even floated the insane idea of using executive power to take private land, which is on par with something a third world dictator would do, like Trump's friend Mohammed Bone Saw. In all seriousness, what Trump may be referring to is a declaration of taking, a legal tool established during the great depression to expedite public works projects. This allows the Army Corps or any other federal agency to take possession of private land on the same day that it files a declaration of taking without having to worry about negotiating a price with the private landowner.

During construction of border fencing authorized by the 2006 Secure Fence Act, about 360 private landowners refused to voluntarily sell their land to the federal government, resulting in hundreds of condemnation suits some of which took several years to settle. Many landowners were ripped off in the process receiving either no compensation or compensation that was less than the actual land value that was taken from them.

An investigation by ProPublica and the Texas Tribune shows that Homeland Security cut unfair real estate deals, secretly waived legal safeguards for property owners, and ultimately abused the government’s extraordinary power to take land from private citizens.

The major findings:
  • Homeland Security circumvented laws designed to help landowners receive fair compensation. The agency did not conduct formal appraisals of targeted parcels. Instead, it issued low-ball offers based on substandard estimates of property values.
  • Larger, wealthier property owners who could afford lawyers negotiated deals that, on average, tripled the opening bids from Homeland Security. Smaller and poorer landholders took whatever the government offered — or wrung out small increases in settlements.
  • The government conceded publicly that landowners without lawyers might wind up shortchanged, but did little to protect their interests.
  • The Justice Department bungled hundreds of condemnation cases. The agency took property without knowing the identity of the actual owners. It condemned land without researching facts as basic as property lines. Landholders spent tens of thousands of dollars to defend themselves from the government’s mistakes.
  • The government had to redo settlements with landowners after it realized it had failed to account for the valuable water rights associated with the properties, an oversight that added months to the compensation process.
  • On occasion, Homeland Security paid people for property they did not actually own. The agency did not attempt to recover the misdirected taxpayer funds, instead paying for land a second time once it determined the correct owners.
  • Nearly a decade later, scores of landowners remain tangled in lawsuits. The government has already taken their land and built the border fence. But it has not resolved claims for its value.

In theory the 5th amendment guarantees just compensation; in practice, just compensation is a function of how much money you have. As usual, landowners who could afford an attorney to litigate for years were able to get much higher offers for their land that reflected the actual selling price, while those who couldn't were ripped off and forced to settle for the first offer.

Retired teacher Juan Cavazos was offered $21,500 for a two-acre slice of his land. He settled for that, figuring he couldn’t afford to hire a lawyer.Rollins M. Koppel, a local attorney and banker, did not make the same mistake. A high-priced Texas law firm negotiated his offer from $233,000 to almost $5 million (21x the original offer) — the highest settlement in the Rio Grande Valley.

Of course, there are also landowners who have yet to be paid for their land, having to spend tens of thousands of dollars and several years in court to get a correct appraisal. This was the case for the Los Santos family, who almost had their land stolen outright when DHS paid their ranch hand instead of them.

The Loop family spent more than $100,000 to defend their farmland from repeated government mistakes about the size, shape and value of their property. The government built a fence across Robert De Los Santos’ family land but almost a decade later has yet to reach a settlement for it. Ranch hand Roberto Pedraza was accidentally paid $20,500 for land he did not even own.

It is also exceedingly difficult to a appraise land values when the government is the only possible buyer and there are very few sales to go by. DHS found a way to circumvent this problem by adding an exception to the Uniform Act, which was supposed to protect landowners from low ball offers, that allowed them to avoid conducting formal appraisals and price negotiations for land worthless than $50,000 before suing the owner.This allowed them to take 90% of the tracts they needed to build the Rio Grande Valley fence without formal appraisals. In place of formal appraisals, the Army Corps used, in some cases, non-certified appraisers, who were not required to abide by federal standards for pricing land, or find a legal description of the property, or determine the property lines or even find the legitimate owner, which in many cases resulted in payments to people who didn't own land. To make matters worse, the Army Core left gaps in the fencing, that are still there today, where they were supposed to install gates for farmers and ranchers to access the rest of their land, making the fence practically useless expect as a water barrier.




Unlike private citizens, tribal members are protected from these same thuggish tactics by their sovereign dependent status. For starters, Indian trust land cannot be taken through eminent domain. Trump would need a bill from congress with super majority approval in the Senate and the House, which given the Democratic majority in one and the slim Republican majority in the other, would take an act of God. Many tribes that live along the border such as the Ysleta del Sur Pueblo and the Tohono O’odham, whose ancestral lands occupy 62 miles of the southern border and extend into Mexico, have been vocal in their opposition to the border wall for the potential environmental and cultural damage it could cause. The Tohono O’odham tribe have the most to lose. A border wall would split their homeland in two and separate them from fellow tribal members in Mexico. They currently have low lying vehicle barriers with a gate in a middle that allows them access to their land on the other side of the border. The tribe also maintains watchtowers and helps CBP apprehend human smugglers and drug traffickers that attempt to cross their land. Given their isolation from any urban centers, a 30' wall would be completely pointless because its physically impossible for migrants to get their on foot; most would end up dying of dehydration or exposure in the desert.