April 17, 2008
Border fence lawsuit update

Just an update on where the border fence lawsuits stand, as I missed a couple of stories recently. Here's one from Friday in which the judge gave permission to the federal government to enter the property of border residents who had refused to grant that permission before.

One of the last of more than 50 Rio Grande Valley property owners sued by the federal government to open their land to surveyors for the border fence lost her case in court.

U.S. District Judge Andrew Hanen on Thursday denied Eloisa Tamez's motion to dismiss the government's condemnation lawsuit and ordered her to give six-month access to three acres of land in El Calaboz, part of a Spanish land grant to her family near Brownsville.

Tamez, a 73-year-old nursing program administrator at the University of Texas at Brownsville and Texas Southmost College, had fought the government since it sued her in late January. Her case, handled by the nonprofit Center for Human Rights and Constitutional Law in Los Angeles, was the most time-consuming for Hanen.

Late Friday, Tamez said neither she nor her attorneys had had a chance to review Hanen's order, but that she would turn to her legislators.

"Apparently he's (Hanen) just going to give entry to everyone's land no matter what we do," Tamez said.


Hanen wrote, "the Court is quite sympathetic to both parties. Any landowner, not just Dr. Tamez, would like to know the exact details of what the Government will be doing on his or her property." But the government is in a "Catch-22" because it will not know the scope of its work until it is on the property, Hanen wrote.

"This is certainly a case where the parties are 'unable to agree on a reasonable price,'" Hanen wrote. So the condemnation was allowed to move ahead.

Hanen also ordered that the government consult with Tamez before going on the property about the timing of their visits and any ways to minimize their impact. Hanen wrote that he would be available to resolve disputes and previously in court had said that he owned boots and would be willing to use them for a site visit.

A countesuit against the feds has gained support among border mayors and activists.

A coalition of Texas border mayors and county executives stretching from El Paso to Brownsville decided to join a proposed class-action lawsuit against Homeland Security Secretary Michael Chertoff on Tuesday.

The Texas Border Coalition's executive committee voted to join the lawsuit filed in early February by Cameron County landowner Eloisa Tamez. A federal judge has not yet certified that lawsuit as a class action.

That lawsuit challenged the way Homeland Security went about suing property owners to get temporary access to their land to survey for the border fence.

"We are joining this lawsuit to protect the interests of communities across Texas and to minimize the impact the border wall will have on our environment, culture, commerce and quality of life," Eagle Pass Mayor Chad Foster said in a statement. Foster is chairman of the coalition.

Eagle Pass was the first municipality to be sued for access to city property.

It should be noted that some of the arguments being made in this proposed suit are the same ones that were rejected by Judge Hanen, so it's hard to say how effective this may be. But the activists are vowing to continue the fight anyway, and they may get a sympathetic ear from Congress.

Two congressional subcommittees of the House Natural Resource Committee will be holding a joint hearing on the border wall in Brownsville on April 28th. Tamez says she plans to attend. It will be held at the University of Texas at Brownsville. "Our congressional leaders have been absent and the landowners feel like we have been fighting this battle against the government on our own," says Tamez.

The hearing will center around Arizona Rep. Raul Grijalva's Borderlands Conservation and Security Act, which would force Homeland Security to negotiate with landowners and would require the agency to follow federal laws when constructing the wall. The bill has been languishing in a subcommittee since last summer, however.

Since Homeland Security Secretary Michael Chertoff waived 36 federal land and environmental laws two weeks ago, the bill has gained more co-sponsors but it still lacks Republican support.

The bill also repeals the section of the REAL ID act which gave Chertoff the authority to waive environmental, labor, and other laws to construct the border wall.

Grijalva told the Rio Grande Guardian in a story Monday that "The Real ID Act is an overreach, constitutionally. What we are asking for is to introduce another constitutional right - due process," he said. "We are not saying you cannot have national security on the border. Let's have a process whereby the public has some input. You must have consultation, you must have NEPA and the environmental assessments and you must look for alternatives."

Tamez says that Congressional leaders outside of Texas have done more for border residents in her community than local congressional leaders. "We want our congressional leaders to know what this border wall will cost for us," she says. "Congressman Bennie Thompson and Raul Grijalva have been more visible on this than our own Representatives."

Well, yeah. That's a damn shame, and maybe someday we'll see a primary fight or two over that lack of leadership. I said once that I thought this was a great issue for Rep. Henry Cuellar to run with, but apparently not. Other than electing Rick Noriega, there's not much that can be done about this in 2008, but it's not too late to start thinking about 2010. South Texas Chisme has more.

Posted by Charles Kuffner on April 17, 2008 to National news