Land battle continues in Texas over border wall construction

A group of landowners in Texas is taking legal action against the Trump administration, trying to prevent their land from being taken to build the border wall. The recent budget bill signed by President Donald Trump allocated nearly $50 billion to build the wall.

Eminent domain

In order to build that wall, the government needs land in south Texas. To get that land, the government can use eminent domain.

Essentially, that means the government has the power to force owners to sell the land for public use even if the owner does not want to sell.

“The property has to be taken for public use under the Fifth Amendment, but effectively, because of the Supreme Court decisions, public use has been determined to be public purpose,” Charles Cummings, an eminent domain attorney, told Straight Arrow News. “It would be a public use to build the wall or a public purpose either way. So, then the issue becomes just compensation.”

Despite the president’s claims Mexico would pay for the wall, taxpayers will now have $46 billion of their money going towards this project.

Many of the landowners fighting this action from the government have hired attorneys. Those attorneys can attempt to push back against eminent domain but mainly they will try to get more of that money.

“There’s two issues in eminent domain, two main issues, as far as compensation,” Cummings said. “One is the value of the property they’re taking, and the second is any damages cost to the remainder of the property.”

The government can also get this done fairly quickly.

“There’s what they call prejudgment possession laws that allow the government to get possession of the property before they paid the full amount that a jury would be determining,” Cummings said.

Delay, delay, delay

The law that would allow that is called “quick take.”

“The first thing that you can expect landowners to do is to say, ‘okay, let’s tap the brakes. You don’t have quick take and so we have to come to either agreement or a final determination of compensation before you can get a judgment or otherwise right of possession through the condemnation statute to build your project.’ That’s a significant delay,” Charles McFarland, a condemnation attorney, told Straight Arrow News.

Eminent domain focuses on the government’s power to take land while condemnation focuses on how they do it.

With quick take, Cummings says the government could have access to the land within six months, especially by using the Justice Department.

“With Trump, he can just tell the Justice Department to do ABC and they pretty much do what he says,” Cummings said. “So, you know, I would imagine that they could get it pretty damn quick.”

But McFarland said delaying as much as possible could save landowners. While both attorneys agreed there’s no stopping the government from taking the land eventually, enough of a delay could actually prevent it depending on how future elections go.

“You don’t want to minimize the impact of delaying this,” McFarland said. “This was all teed up during the first Trump administration and the delay followed by his failure to get reelected in the Biden administration, essentially neglected or didn’t make the border wall project a priority, probably not surprisingly, so delay is what has prevented this project from going forward to date.”

Wildlife concerns

McFarland said that, political affiliations aside, Texans will fight this attempt to take their land.

“People are going to fight this,” McFarland said. “Even people who would otherwise identify as Trump supporters or conservatives, when it comes to their property, there’s going to be a fight.”

They also won’t be the only ones fighting as environmental concerns also plague this project. There are already lawsuits in Texas, Arizona and New Mexico from conservation groups trying to protect that land.

“It is an ecologically sensitive part of the world,” McFarland said. So, there’s another group of people that that feel very strongly that at least for large stretches of the proposed project where there are no significant, or even maybe physically possible crossings, are not a danger, not a risk, that the public use could be a factual matter, less supported than other areas where crossings might be more prevalent.”

Recently, the state of Texas abandoned their own plans for a border wall and Gov. Greg Abbott offered to lease or sell some land to the government.