Fencing with eminent domain: All hat on the Texas border

"They're going to put up some fence, and it's going to be in Eagle Pass just to make an example of the mouthy mayor of Eagle Pass." – Mayor Chad Foster, as quoted in the Houston Chronicle.

The Bush administration’s decision to move forward with condemnation to acquire the necessary easements for the construction of the border fence makes very little sense. "I think the way that the Bush administration is going about this, filing eminent domain actions against landowners and municipalities makes no sense," Senator Hillary Clinton said in a recent debate with Senator Obama held at the University of Texas in Austin.

In any taking such as this – a partial taking – the affected property owners will have a claim for the value of the land taken as well as damage to the remainder. The Texas Constitution provides compensation for any property taken or damaged as a result of an acquisition for public use in Article I, Paragraph 17:

No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person; and, when taken, except for the use of the State, such compensation shall be first made, or secured by a deposit of money; and no irrevocable or uncontrollable grant of special privileges or immunities, shall be made; but all privileges and franchises granted by the Legislature, or created under its authority shall be subject to the control thereof.

The border fence project certainly falls within that provision and the damages to the remainder will in all likelihood be a larger issue than the taking itself. We posted earlier that the DHS wanted access to the properties for up to 6 months and the right to remove structures in the way of surveyors and engineers, and each landowner would receive $100 and be reimbursed for any damage to the property. See Don't fence me in with eminent domain (January 24, 2008).

Envision a cattle ranch bordering the Rio Grande River (the border between U.S. and Mexico). The fence on the U.S. side of the border will cut off the land to the west from the river and prevent access to the water. This may be of paramount importance to the rancher. Not only would the fence taking destroy the area of the fence, but it will certainly damage the land between the fence and the Rio Grande River and may damage the greater remainder of the property once it is cut off from access to the river. Typically, government bureaucrats overlook these details, but the property owners and their attorneys, if they are conversant with eminent domain issues, will make them pay.

There is a larger severance damage that will occur, which has been written about, but does not involve compensation per se. That is the severance of the communities, both Mexican and American, which have developed many cross-border relationships over the years.

There are several examples of universities, Texas El Paso, University of Texas at Brownsville and Texas Southmost College, which have facilities and students on both sides of the border. The University of Texas at Brownsville recently posted an update on the fence situation. A revised map from the U.S. Department of Homeland Security no longer includes plans to build a fence north of the International, Technology, Education and Commerce Campus (ITECC). The plan still includes an 18-foot-high fence on the levee south of the Scorpion Baseball Field and the Education and Business Complex parking lot. The proposed fence places all of the Fort Brown Memorial Golf Course and the remnants of historic Fort Texas on the fence’s south side.

There has been talk of a “virtual fence” with censors and cameras instead of an actual, physical structure. This probably makes more sense. But yesterday the Washington Post reported that the Government Accountability Office reported that technical problems would delay the first phase of the virtual fence project by three years. Today the GAO announced that it might not be able to build the 370 miles of fencing along the border before December 2008 and construction of a virtual fence in Arizona will be delayed until 2011. According to the Associated Press, yesterday DHS officials said they would build almost 57 miles of fencing and other border technology in the El Paso area by the end of 2008.

A consensus on a new immigration policy would go further to eliminate the need for the fence and the related issues which result from its construction. All three of the top presidential candidates (Senators McCain, Obama and Clinton) voted for the Secure Fence Act of 2006.