May 17, 2008
Border coalition sues Homeland Security over the fence

The fight over the border fence moves to a new front.

Texas mayors and business leaders filed a class-action lawsuit Friday alleging Homeland Security Secretary Michael Chertoff hoodwinked landowners into waiving their property rights for construction of a fence along the Mexican border.

Members of the Texas Border Coalition said Chertoff did not fairly negotiate compensation with landowners for access to their land for six-month surveys to choose fence sites. The coalition of mayors and business and community leaders is seeking an injunction to block work on the fence.

They also want a federal judge to rescind all the agreements with landowners and to order Chertoff to start again. The department has sought and won access from hundreds of landowners to determine where to build the fence and other barriers to illegal border crossings.

The coalition's attorney, Peter Schey, said Chertoff violated a 1996 immigration law that requires fair negotiation with landowners.

The lawsuit also names Robert Janson, director of Asset Management at U.S. Customs and Border Protection, as a defendant.

It was filed with U.S. District Judge Reggie B. Walton, a Bush nominee who presided in the criminal case of I. Lewis "Scooter" Libby, Vice President Dick Cheney's former chief of staff.

"They hoodwinked property owners" into waiving their property rights, Schey said.

"This whole thing has been built on a foundation of lawlessness," he said.

The Rio Grande Guardian lays out the specifics:

The lawsuit asserts that DHS and CBP have violated:

* Border landowners' statutory right to negotiation over a "reasonable" price prior to the taking of property for the purpose of constructing segments of fence along the 1,200-mile stretch of Texas-Mexico border.

* The due process rights of property owners by failing to issue and make public any rules, regulations, or directives on how negotiations should take place or how the government will determine a "reasonable" price for the property it wishes to seize.

* The equal protection guarantee of the Fifth Amendment by giving certain politically well-connected property owners a pass on having the border fence built on their property.

* The 2008 DHS Appropriation law and the due process rights of property owners by failing to issue and make public any rules, regulations, or directives on how required "consultation" with property owners will take place and how the concerns of property owners will be considered.

In addition, the lawsuit contends that the Secretary of Homeland Security has unlawfully failed to exercise his discretion as required by the 2008 DHS Appropriation Act to select the most practical and effective locations to build the border wall, rather than the locations set in the now-repealed provisions of the Secure Fence Act of 2006.


In the legal complaint, TBC charges that Chertoff failed to clearly define the interest he sought in South Texas landowners' property under the Declaration of Taking Act, and did not attempt to negotiate with the lawful owners a fixed price for the land.

"Federal laws require that DHS and CBP negotiate with property owners to arrive at a reasonable price for their property and consult with them to minimize adverse consequences of the planned border wall," said Schey, lead counsel for TBC. "Yet, DHS and CBP have failed to issue any publicly available rules or regulations to implement these obligations, and failed to inform property owners that they have rights under these federal laws.

"DHS and CBP either have no rules and are proceeding from the seat of their pants, or they have rules and have illegally failed to share them with property owners who are forced to proceed in the dark. No one supports building a border wall on a foundation of lawlessness," Schey added.

The complaint also alleges that DHS and CBP failed to comply with new mandates in the recently enacted Consolidation Appropriations Act of 2008, which requires consultation with private property owners, cities, and other stakeholders to "minimize the impact on the environment, culture, commerce, and quality of life" in communities where the border wall is to be constructed.


The lawsuit cites at least one media report indicating that DHS and CBP plans to build the border wall through city and county-owned land, while bypassing property owned by such wealthy, and politically connected Texans as Dallas billionaire Ray Hunt, a close friend of President George W. Bush. Hunt recently donated $35 million to Southern Methodist University to help build Bush's presidential library.

Foster said he has never received any logical answers from DHS and CBP as to why certain areas in his city have been targeted for fencing over other areas. "I puzzled a while over why the fence would bypass the industrial park and go through the city park," he said.

The lawsuit seeks declaratory and injunctive relief requiring DHS and CBP to comply with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 as amended in 2008 and the taking clause and due process and equal protection guarantees of the Fifth Amendment.

That media report would be this Texas Observer story. I'd love to see that get explored in more detail. The Monitor has more on the lawsuit, which you can view for yourself here (PDF). I wish the plaintiffs much good luck with it.

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