It's not just the feds suing property owners along the border. Property owners are suing the feds, too.
A lawsuit by University of Texas-Brownsville Professor Eloisa Tamez and San Benito resident Benito J. Garza claims the Homeland Security Department disregarded the law by filing "declarations of taking" before negotiating a price for their land.
The government sued both for six months of access to plot the fence.
During a two-hour hearing before U.S. District Judge Andrew Hanen on the government's lawsuit, attorney Peter Schey said two acts of Congress prohibited the declarations of taking, or expedited condemnation, for the fence.
"The judge was very patient, very receptive," Schey said. "He made very clear that this was the first time anybody has brought this to his attention and he's really going to have to step back and contemplate."
After a previous hearing, Hanen granted government access the same day.
Tamez said she is a descendant of the Lipan Apache and Basque peoples and her acre of land has been in the family for 265 years.
According to the complaint against Homeland Security Secretary Michael Chertoff and Robert F. Janson, acting executive director of asset management for U.S. Customs and Border Protection, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 precluded the government from using expedited condemnation for border fencing. It says expedited condemnation was again ruled out by an amendment to the federal budget bill requiring consultation with locals.
The government's reply to the complaint, filed Wednesday, says government officials are seeking only "minimally intrusive, non-exclusive" temporary access to plan the fence.
"Whatever concerns might be applicable to the actual permanent taking of land in fee for fence construction are simply not relevant at this time," it says.
The federal government and local officials in one border county announced today they had reached a compromise that would eliminate the need for the much-maligned border fencing there.
Private land in Hidalgo County border towns such as Granjeno, where dozens of homes could have been lost behind the fence in a no-man's land between Mexico and the United States, would no longer be threatened by a land grab, Homeland Security Secretary Michael Chertoff said.
Since the Department of Homeland Security is responsible for border security and natural disasters such as flooding, the Hidalgo County solution to modify levees along the Rio Grande with an 18-foot sheer face on the river side satisfied Chertoff.
"When completed at the end of the year, they will serve both functions," Chertoff said at a border patrol station in Edinburg, the Hidalgo County seat. "It's a great example of where we are able to dovetail what we need with what the community needs."
Gov. Rick Perry, who with local officials has opposed the fence, thanked Chertoff for being receptive to local feedback.
Chertoff noted that a "legislative fix" allowing the local and federal funding contributions to the project would be required for the agreement to move forward.
It was the most conciliatory atmosphere between border communities and Homeland Security since the border fence dispute began more than a year ago, and an about-face from last month, when Chertoff said people worried about the impact of increased security on cross-border travel should "grow up."
Hidalgo County chief executive J.D. Salinas said the levee improvements would also save property owners who faced millions of dollars in insurance premium increases because of poor flood control in the area.
But most significant is that the border wall-levee system will stay along the river's edge. Earlier plans had the fence winding through towns like Granjeno as far as two miles inland from the Rio Grande, cutting off huge swaths of property into a no-man's land between the fence and the river. The fence also would have cut off water access to farmers and ranchers in the area.
"The people of Granjeno should not be concerned," Salinas said.
Residents and elected leaders throughout the Rio Grande Valley had bristled at the idea of a border fence, fearing both the loss of private land and the message it would send to their sister communities in Mexico.
But last fall, Salinas and his Cameron County counterpart, Carlos Cascos, suggested the levee compromise, figuring they could fix two problems at the same time.
"I think that's a big victory for all of us here," Cascos said.
The No Border Wall Coalition says the Department of Homeland Security should begin a new Environmental Impact Statement for the Rio Grande Valley if it intends to back the so-called "vertical levee" plan.
"We are concerned that DHS intends to push through the idea of a wall-levee combination in the Rio Grande Valley before it has been thoroughly evaluated," said NBW spokesperson Stefanie Herweck.
"If DHS is serious about their plan they must prove the efficacy and safety of the wall-levee combo with the appropriate engineering and hydrological studies."
Herweck said new engineering and hydrological studies on the levee-fence combo plan should be made available for public review in a new draft EIS for the Valley.
"Construction should not begin unless we can be assured that this will not put the safety of Texas residents at risk," she said.
"DHS should not start tearing the sides off of our levees, and possibly destabilizing them ahead of hurricane season, until they know how the wall will impact the levees' structural integrity."
Herweck said a cautious approach would see DHS abandon the plan to begin fence or levee-fence construction in the spring, so that Valley residents do not go into hurricane season with the levees in a compromised state.