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How The Federal Government Abused Its Power To Seize Property For A Border Fence

In less than a year, the U.S. Department of Homeland Security filed more than 360 eminent domain lawsuits against property owners, involving thousands of acres of land in the border states of Texas, New Mexico ... cut unfair real estate deals, secretly ...

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BROWNSVILLE — The land agents started working the border between Texas and Mexico in the spring of 2007Sometimes they were representatives from the U.SArmy Corps of EngineersOther times they were officers from the U.SBorder Patrol, uniformed in green, guns tucked into side holsters They visited tumbledown mobile homes and suburban houses with golf course viewsThey surveyed farms fecund with sugar cane, cotton and sorghum growing by the mud-brown Rio GrandeThey delivered their blunt news to ranchers and farmers, sheet metal workers and university professors, auto mechanics and wealthy developersThe federal government was going to build a fence to keep out drug smugglers and immigrants crossing into the United States illegally, they told property ownersThe structure was going to cut straight across their landThe government would make a fair offer to buy property, the agents explainedThat was the lawBut if the owners didn’t want to sell, the next step was federal courtU.Sattorneys would file a lawsuit to seize itOne way or the other, the government would get the landThat, too, was the lawThe visits launched the most aggressive seizure of private land by the federal government in decadesIn less than a year, the U.SDepartment of Homeland Security filed more than 360 eminent domain lawsuits against property owners, involving thousands of acres of land in the border states of Texas, New Mexico, Arizona and CaliforniaMost of the seized land ran along the Rio Grande, which forms the border between Texas and MexicoAll told, the agency paid $18.2 million to accumulate a ribbon of land occupying almost half the length of the 120 miles of the Rio Grande Valley in southernmost TexasYears before President Donald Trump promised to build his wall, Homeland Security erected an 18-foot-high fence here in a botched land grab that serves as a warning for the futureAn investigation by ProPublica and The Texas Tribune shows that Homeland Security cut unfair real estate deals, secretly waived legal safeguards for property owners, and ultimately abused the government’s extraordinary power to take land from private citizensThe major findings: • Homeland Security circumvented laws designed to help landowners receive fair compensationThe agency did not conduct formal appraisals of targeted parcelsInstead, it issued low-ball offers based on substandard estimates of property values• Larger, wealthier property owners who could afford lawyers negotiated deals that, on average, tripled the opening bids from Homeland SecuritySmaller and poorer landholders took whatever the government offered — or wrung out small increases in settlementsThe government conceded publicly that landowners without lawyers might wind up shortchanged, but did little to protect their interests• The Justice Department bungled hundreds of condemnation casesThe agency took property without knowing the identity of the actual ownersIt condemned land without researching facts as basic as property linesLandholders spent tens of thousands of dollars to defend themselves from the government’s mistakes• The government had to redo settlements with landowners after it realized it had failed to account for the valuable water rights associated with the properties, an oversight that added months to the compensation process• On occasion, Homeland Security paid people for property they did not actually ownThe agency did not attempt to recover the misdirected taxpayer funds, instead paying for land a second time once it determined the correct owners• Nearly a decade later, scores of landowners remain tangled in lawsuitsThe government has already taken their land and built the border fenceBut it has not resolved claims for its value• The errors and disparities played out family by family, block by block, county by county, up and down the length of the border fenceThe Loop family spent more than $100,000 to defend their farmland from repeated government mistakes about the size, shape and value of their propertyThe government built a fence across Robert De Los Santos’ family land but almost a decade later has yet to reach a settlement for itRanch hand Roberto Pedraza was accidentally paid $20,500 for land he did not even ownRetired teacher Juan Cavazos was offered $21,500 for a two-acre slice of his landHe settled for that, figuring he couldn’t afford to hire a lawyerRollins MKoppel, a local attorney and banker, did not make the same mistakeA high-priced Texas law firm negotiated his offer from $233,000 to almost $5 million — the highest settlement in the Rio Grande Valley“We got screwed,” said Cavazos, 74Homeland Security and the U.SArmy Corps of Engineers referred questions to the Justice DepartmentA Justice Department official, who insisted on anonymity, said all agencies involved in the land seizures followed proper proceduresHe declined to respond to specific questions“[F]or any large public works project impacting hundreds of properties, the values are likely to cover a large range because so many different kinds of property are being acquired,” the official said“It is these very differences in uses that cannot be captured in a cursory statistical analysis of the properties acquired and the prices paid for these lands.” Michael Chertoff, the former secretary for Homeland Security under President George WBush who personally approved the condemnations in Texas, declined to commentGreg Giddens led the fence building project at Homeland SecurityNow retired, Giddens said his team faced pressure from both U.SCustoms and Border Protection, which wanted the fence built quickly to benefit law enforcement, and from Congress, which set a deadline to complete the structure“Everybody wanted to do this rightBut it was clear that the mission was to get this done,” Giddens saidHyla Head, the former Army Corps official who oversaw the condemnation process for the agency, said the government did everything according to regulation“There is a process that we have to follow and we followed that,” said Head, now retired“I think we did a damn good job with the constraints that we were under.” The fence was born in the middle of a fierce national debate on immigration reformIn 2006, RepPeter King, a New York Republican, introduced a plan to build hundreds of miles of a physical barrier along the southern borderAlthough controversial, the proposal won bipartisan supportThen SenJeff Sessions, the Alabama Republican, led the fight for its passageYea votes came from Democratic SensHillary Clinton and Barack ObamaOn Oct26, 2006, President Bush signed the Secure Fence ActPresident Obama oversaw the fence’s constructionAll told, Homeland Security built 654 miles of fence — just short of the 700 mile goal set by Congress — at a cost of $2.4 billionNow Trump has promised to finish the job with a much larger wall — nearly twice the height of the current fence, made of concrete, and occupying much of the remaining 1,300 miles of southern border unguarded by a physical barrierHis administration has declared its intent to take more land to build the wall in the central Rio Grande Valley, where much of the property remains in private handsFor Trump to succeed, the federal government will have to file more eminent domain lawsuits using the same law that resulted in uneven payments the last timeMany of the players who oversaw construction of the fence are now working on making Trump’s wall a realityMauricio Vidaurri’s voice catches when he envisions a wall running across his family farm south of Laredo on the banks of the Rio GrandeA rancher, Vidaurri strongly supports better border protectionBorder crossers constantly trespass on his land, and drug couriers have broken into a home on the ranchBut a wall would almost certainly split the ranch that has been in his family since the 1700sIf Homeland Security wants to build a wall, Vidaurri knows he will be almost helpless to stop it“That’s a battle that we can’t win,” he saidA sovereign power “Eminent domain” probably exists as a phrase in the consciousness of most Americans in some way or anotherMaybe you heard it when the government was building a highway, or clearing a route for gas pipelinesThe sovereign power to seize land — and the need to protect property owners from its abuse — dates to the beginning of modern democracyIn 1215, the Magna Carta limited royal power — including curtailing the sovereign’s ability to take property from his nobles“No free man shall be seized or imprisoned, or stripped of his rights or possessions,” it readA man’s castle was his home, and not even a king could take it without due processThe language survives unaltered in modern British lawMore than five centuries later, America’s earliest lawmakers enshrined private property rights in the U.SConstitutionThe Fifth Amendment required that the government provide “just compensation” if it took property through eminent domain — the English rendering of a Latin phrase meaning “supreme lordship.” If the government was going to appropriate property, it had to pay for it, fairly and fullyOver the decades, eminent domain transformed the American landscapeThe U.SInterstate Highway System and some national parks, NASA’s Cape Canaveral and the U.SSupreme Court building itself — none would have been possible without federal land condemnationDuring World War II, the Justice Department boasted of being the largest real estate broker in the nationThe federal government acquired more than 20 million acres of land to build bases and other military sites — an area the size of South CarolinaAt the same time, the potential for abuse inspired deep-seated fearAn early Supreme Court justice described eminent domain as a “despotic power.” Property owners — from gigantic timber companies to people evicted from their homes — have fought bitterly to stop the government from taking their land, or to ensure a fair market pricePolitically, an unusual coalition of the right and the left has resisted the use of eminent domainProgressives have argued that disadvantaged groups feel the pain of condemnation more than mostIn the 1950s and 1960s, officials deployed eminent domain to bulldoze mostly minority, mostly poor inner-city neighborhoods in the name of urban renewalGovernment planners called it “blight removal.” Writer James Baldwin had another term: “It means negro removal,” he said after a meeting with U.SAttorney General Robert Kennedy in 1963“And the federal government is an accomplice to this fact.” On the right, conservatives have warned of the so-called “grasping hand” of bureaucratic attacks on private property rightsThat concern rose to national prominence in 2005, when the U.SSupreme Court ruled against private property owners in the landmark case Kelo vCity of New LondonThe Connecticut city condemned the homes of Susette Kelo and her neighbors to turn the land over to a private developerThe developer planned to build a hotel, housing, and office space to complement a new research center by Pfizer Corp., the pharmaceutical giantThe city determined the new development would generate jobs and tax revenueIn a 5-4 decision, the court decided that taking land from one set of private property owners to give to another private entity was permissible as a “public use.” Kelo’s small pink house was relocated and her neighborhood was bulldozed, but nothing was ever builtThe ruling united ideological enemiesRalph Nader blasted itSo did Rush LimbaughA few property rights activists were so angry they sought to condemn the New Hampshire home of Justice David Souter and replace it with the “Lost Liberty Hotel.” One of the few high-profile supporters of the ruling was Donald Trump, then a New York developer“I happen to agree with it 100 percent,” he saidHis opinion was informed by experienceIn the 1990s, he lost an eminent domain battle when a local agency failed in its bid to tear down an elderly woman’s home in Atlantic City to make room for a limousine parking lot for Trump’s casinoTrump’s enthusiasm for taking land enduresDuring a February 2016 presidential debate, Trump described it as almost like winning the lottery“When eminent domain is used on somebody’s property, that person gets a fortune,” he told the audience“They get at least fair market value, and if they are smart, they’ll get two or three times the value of their property.” In response to the Kelo decision, 45 states, including Texas, passed new laws to improve landholder protectionsSome states banned private-to-private takingsOthers required “supercompensation” — payments at greater than the fair market valueThose reforms built on others passed over the yearsCalifornia pays out up to $5,000 for property owners to hire their own appraisersTexas provides special commissions to review land seizures before the start of costly legal proceedingsUtah created an independent ombudsman to help landowners navigate the processBut the furor to fix eminent domain abuse bypassed one important entity: the federal governmentAfter Kelo, President Bush issued an executive order requiring agencies to better monitor land seizuresCongress passed no meaningful legislationAnd so, by the time the land agents had finished knocking on doors in the Rio Grande Valley at the end of 2007, the property owners faced a federal government armed with powerful legal tools, many created decades earlier for a very different purpose than building a border fenceTools for the taking The Homeland Security officials in charge of building the border fence were getting nervousCongress had set a deadline to complete the project: Dec31, 2008In little more than a year, Homeland Security, working through its U.SCustoms and Border Protection division, needed to issue millions of dollars’ worth of government contracts, buy 145,000 tons of steel, and build hundreds of miles of fence across unforgiving terrain“The clock is ticking,” Giddens, head of the fence task force, warned colleagues in a September 2007 emailThe biggest problem was TexasUnlike other border states, most of the land where the fence was going rested in private handsAnd people in the Rio Grande Valley were refusing to sellThe land agents would close only 22 dealsOn Dec7, 2007, Chertoff announced his decision: If landowners wouldn’t cooperate, the government was going to take the landThey had 30 days to decide“We would of course like to reach an agreement with the landowner,” he said“But if we are unsuccessful, we are prepared to use eminent domain,” he told reportersOver the following seven months, Homeland Security filed hundreds of lawsuits against scores of landowners along the Rio GrandeMost of the targeted acreage was farmlandBut homes, golf courses, businesses and even nature preserves were sliced into piecesAlberto Garza, 91, lost 10 acres that provided access to the sugar cane farm he had worked for 50 yearsThe De Leons were disowned of four separate tracts that had been in their family since the 1790s, when Spain ruled the regionRay Loop was forced to give up a swath of property that ran in front of his home near the Rio GrandeThe Nature Conservancy, one of the country’s leading environmental organizations, surrendered eight acres of its preserveThe University of Texas-Rio Grande Valley was cut off from the golf course where its team practicedAll told, the agency built 50 miles of fence in disconnected strips 40 to 60 feet wide — and seized a total of 564 acresA process that can take years for a single parcel had been compressed into monthsThe seizures were made possible by a piece of paper called a Declaration of TakingThe Taking Act was passed by Congress during the Great Depression to help stimulate the economyIt was designed as an alternative to traditional, slow-moving eminent domain lawsuitsThe idea was to expedite land seizures, allowing the federal government to quickly build public works projects and generate new jobsBy using a so-called quick-take, a federal agency gained title to a person’s property on the same day it filed a declaration of taking in courtThe bulldozers could roll as soon as a judge approved an order to possess the landThe landowner was almost powerless to stop the processTo balance this muscular exercise of sovereign power, the law required the government to immediately deposit a check with the court to pay the landholderThe amount was supposed to be the fair market value, the amount that a willing buyer would pay a willing sellerThe landowner could take the money, or try to convince the government to pay more — a process that could take years“They can just grab the property now and worry about the price later,” said Robert HThomas, past chair of the American Bar Association’s eminent domain committee“It’s a pretty potent tool.” But not powerful enough for Homeland SecurityThe agency deployed a second tool to make it easier and faster to seize landIt issued a waiver that eviscerated a federal law designed to protect property owners from unfair seizuresThe so-called Uniform Act required the government to negotiate with the owners before seizing landAn agency couldn’t take coercive action to force a sale, and owners would receive a detailed description of the property to be seizedPerhaps the most important provision was that the government had to formally appraise land worth more than $10,000 before taking an owner to courtThe appraisal had to be done according to the exacting standards spelled out in the 262-page Yellow Book — the federal government’s bible for pricing landThe idea was to prevent lowballingThe government’s initial offer to buy property was not an opening bid in a negotiationIt was supposed to be as close as possible to the final, full value of the land, priced at its “highest and best” economic useSo, for example, if you had fallow land that could be planted with crops, an agency was supposed to pay as though your fields were abundantThere was an exception to the lawAn agency could bypass any of the law’s requirements, so long as doing so would “not reduce any assistance or protection provided to an owner.” With virtually no public notice, Homeland Security took advantage of the loopholeIt waived the law’s requirements for negotiation and eliminated conflict-of-interest provisionsThe agency also increased the appraisal threshold to $50,000 for property seized along the borderIn practice, the higher threshold meant that the agency did not have to formally appraise most of the property it wantedLand is cheap in the Rio Grande Valley, and the government was appropriating only small strips for the fenceOf 197 tracts seized by Homeland Security, 90 percent were valued at less than $50,000In place of formal appraisals, Homeland Security directed the Army Corps to assign values to targeted landArmy Corps evaluators did not have to be certified appraisersThey did not have to abide by Yellow Book standardsThey did not have to identify the owners, and they didn’t need precise legal descriptions, called metes and bounds, to spell out property linesHomeland Security worried that the Army Corps did not have the expertise or manpower to complete the job, according to a September 2007 reportGiddens, head of the fence project, said Homeland Security directed the agency to gather real estate experts from other Army Corps offices and hire contractors to do the work as fast as possibleIt was not worth waiting long to conduct the condemnation process, given strong opposition by landowners in the Valley, Giddens said“This was not going to get better with timeNone of us thought if we waited six months, people were going to say, ‘Hey, I get it now,’ ” he said“There was no use in prolonging it.” In the spring of 2008, the Army Corps representatives fanned out across the Rio Grande Valley to conduct negotiations with holdout land ownersThey were met with confusion and anger, according to an Army Corps report of the negotiationsLandowners wanted to know where the fence would go, how it would affect their propertyThey asked for more time to consider the offersThe contractors told them they had just weeks to sign a deal or the federal government would sue themOne negotiator described a farmer’s distress at being pressured to make a decision in less than two weeks in the middle of his onion harvest“He takes this a little more to heart and is a little more emotional about the acquisition than some others,” an Army Corps realty specialist wrote“He had lost confidence that Congress had any common sense.” Tudor Uhlhorn, 58, a local politician, farmer and business owner, was perplexed by the federal offer to buy land he owned along the Rio GrandeHe had been involved in land condemnation cases filed by the state of Texas, and in those cases the state’s attorneys had provided detailed property descriptions and construction plansHomeland Security sent him a map that appeared to be taken from Google Earth, with a red rectangle drawn around the targeted tractWhen he asked for more information, the Army Corps sent a letter: “The accelerated schedule that is necessary to meet the Congressional mandate will not permit the completion of the ground survey before acquisition,” it readHomeland Security would take first, and measure laterNeither Uhlhorn nor his attorney was informed that Homeland Security had gutted landholder protections, until they argued the case in court“They were building the fence on me without a full set of plansThey had no plans they could show me,” Uhlhorn said“They just said it starts sort of in this area here and it ends sort of over there.” Homeland Security’s decision — changing a single digit in an obscure line of the federal code — left landowners in the Valley vulnerable to the caprice of federal agencies more focused on fence construction than fair compensationThat’s because the Uniform Act contained a final weaknessEven if a property owner could show that Homeland Security had violated the law’s requirements, there was nothing the court — or anyone else — could do to fix itBuried deep in the law, Congress had included a sentence that said the Uniform law “creates no rights or liabilities and shall not affect the validity of any property acquisitions by purchase or condemnation.” In other words, there was a lawBut there was no way to enforce itIn legal terms, it was “nonjusticiable” — beyond the reach of the federal court“This is pretty much a very dark corner of the law,” said Gideon Kanner, a professor emeritus at Loyola Law School in Los Angeles and a longtime champion of private property rights“Any notions of due process that you may have will have to be re-examined.” Out of commission Delia Perez Weaver, 74, started working on her grandfather’s farm near San Benito in the fourth gradeBack then, Mexican workers would come across the Rio Grande under temporary work permits granted under the bracero programThey would pick okra and cotton, green beans and tomatoesWhen the Army Corps came to talk with her, Weaver had rented out the farmhouse and the landThey told her they needed an acre to construct the fence and secure an access roadAs compensation, she would receive almost $15,000To Weaver, the offer seemed lowA relative told her she’d received a larger payment for a similar piece of land up the roadThe 18-foot-high fence was an eyesore that would drop the land’s valueAnd so much of her life, and her family’s life, was wrapped up in her grandfather’s farmShe asked the Army Corps representative for more moneyHe told her noSo she took the offer“This is it,” she remembered him saying“If you want some more you need to go to court and that’s going to cost you more money.” The Army Corps official was rightProperty owners sued by the government have no right to be assigned an attorneyThey must hire their own, or find one willing to work on a contingency feeThat’s not easyBy tradition, private eminent domain lawyers take roughly 30 percent of the increase over the initial offerFew will take on cases where the property is worth less than $100,000 — it’s not worth their timeThe federal courts, however, had developed a solution for owners like WeaverIn projects involving many owners of inexpensive tracts spread out over a large area, a judge could appoint a land commission composed of local real estate experts to determine property valuesThe commissions allowed small landowners to plead their cases without the expense or formal procedures involved in a judicial hearingCommissions were used in the two largest eminent domain cases in U.Shistory: the creation of Florida National Everglades Park, which involved more than 40,000 lawsuits over three decades, and the Tennessee Valley Authority, a congressionally chartered hydroelectric power company that required acquiring hundreds of thousands of acres of landSuch commissions have also been used in much smaller condemnation projects, some involving as few as 16 propertiesAs the lawsuits started, the Justice Department, representing Homeland Security, urged the federal judge overseeing most of the cases in the Valley to appoint such a commissionVirginia Butler, the chief of the Justice Department’s real estate acquisition section, warned in a motion to Judge Andrew SHanen that failure to do so would “result in protracted litigation of these matters and disparate awards to claimants — a very unsatisfactory result for all parties involved.” “In order to achieve fair, uniform compensation awards expeditiously for all affected owners (represented and unrepresented) in the Rio Grande Valley, appointment of a commission is required,” she wroteHanen is best known now as the judge who blocked an Obama order to ease immigration lawsBut before, he was the “fence judge” — handling nearly all of the cases along the Rio GrandeHanen rejected Butler’s requestA jury trial, he said, was the best forum for the casesAnd there was no need to worry about defendants without legal counsel, according to Hanen, because all the cases before him already had lawyersWhen it came to negotiations between the government and landowners, Hanen declared that he would be “hands off.” Hanen’s confidence was misplacedAs the lawsuits played out in court instead of before a commission, Butler’s dire predictions came truePayments were unequal and lawsuits dragged on for years, according to a review by ProPublica and the Texas Tribune of 197 cases in the Rio Grande Valley where the government took possession of property from landownersThe review did not include cases which remain open, or temporary land seizuresThe Justice Department takings lawsuits resulted in splitting the community into three groups, not on the basis of the land they owned, but on their ability to retain an attorneyThe biggest group was made up of landholders of modest means, many elderly, some Spanish-only speakersThey didn’t hire attorneys and took the government’s initial offerHalf the lawsuits had that resultThe median settlement was $8,000The median seizure was just over one-third of an acreThose who settled were people like Otalia Perez, 81, and her 85-year-old husband TomasThey lived in a modest brick home across from their farmlandWhen the Army Corps approached them, Tomas had long ceased working the land himself, instead renting it out to tenant farmersNeither he nor his wife felt like fighting the governmentThey accepted $21,000, and the government took two acres of land“My folks are old and didn’t need to be in that legal battle, so we said, “Look, just take whatever they give you now ‘cause it’s gonna happen anyway,” said Joe Perez, their son who handled discussions with the governmentJack Coleman, 77, was a military veteran who retired from the Naval Space Command in 1996When the government offered him $10,600 for a piece of overgrown land that he used as a personal firing range, it seemed like a good dealIt was almost the same amount that he’d paid for the entire five-acre tract years before“They offered a more than fair price,” he saidBut when taking slices of land from larger parcels, as happened in the Rio Grande Valley, the government didn’t price property in the way that real estate transactions are typically valuedUnder federal guidelines, Homeland Security was supposed to evaluate the worth of a piece of land before building the fence, and do so again after constructionSubtracting the second figure from the first produces an estimate of the damage inflicted on the property by the construction of the fenceThe formula is designed to capture price differences caused when land is severed from a parent tractBut many in the Valley weighed the offer on a price-per-acre basis at a time when the best irrigated cropland was selling for $10,000 an acreTo those who didn’t know about the formula, the government offers seemed generous — at firstThe Cavazos family lived in a home on 30 acres wedged between the Rio Grande and Oklahoma Avenue, a two-lane stretch of blacktop on the eastern edge of BrownsvilleMuch of the land was between the river and a levee — good only for cropsThe Cavazoses kept cattle, horses and chickens that roamed the thick grassland and pastures behind their single-story tan brick ranch houseThe area is rural: horses graze on tall grass on the sides of roadsThere are no street lights, and fields of cotton, corn and citrus trees line the roadThe Army Corps told the family that it would build a fence to run just behind the house, and also put in a gravel side roadTo compensate them for the loss of two acres to the project, Homeland Security offered $21,500 and promised to install a gate with a security code that would give them access to their land remaining on the other sideJuan Cavazos was

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