Border Wall Battles

Although appropriations have yet to be made by Congress, and remain controversial, President Trump has directed the Department of Homeland Security to proceed with plans for building the wall, and designs and bids have already been submitted by hopeful contractors. Moreover, the administration has proposed hiring 20 or more DOJ attorneys dedicated to land acquisition for the wall, and federal law allows the government to take title to land in an expedited fashion when it chooses to do so.¹

 So what is a landowner to do? Can you stop the government from taking your land? How much compensation can you expect to receive? Is it worth the fight? Because there is little likelihood of success in permanently fending off the government’s right to take land for a border wall, this article will focus on compensation available to affected land owners. It may be more than one would think.

Constructing a Wall on the Actual Border in Texas is Unlikely

The U.S.-Mexico border runs almost 2,000 miles long, about two-thirds of which follows the path of the Rio Grande in Texas. A range of barriers already exists along much of the non-riparian borders of California, Arizona and New Mexico. These barriers were built during the Bush II and Obama administrations pursuant to the 2006 Secure Fence Act. Although parts of the border in Texas also have barriers of some kind, the majority of the construction of President Trump’s border wall would likely occur in Texas.

But building a wall along the Rio Grande is challenging for several reasons, and this presents potential opportunities for landowners to receive increased compensation. Some 95% of the land along the River is privately owned. The land around the River is protected by several treaties. A 1906 pact bars construction in the River’s floodplains. A 1970 treaty set the international boundary at the midpoint of the River and prohibits construction of anything that could deflect or obstruct the water flow. Because the border is determined by the River, artificially altering the water flow with construction on or near the river could impermissibly alter the border. Furthermore, the physical characteristics of the land along the River vary widely: from verdant farmland, to desert, to craggy mountains, to lakeside resort, to urban and suburban development. Moreover, the River sometimes floods.

As a result, in most, if not all, of Texas, the wall cannot be built on the actual border—which lies in the middle of the river—and any “border” wall would likely need to be constructed as much as a mile or more inland. This will cut many properties in two pieces, and perhaps leave some property owners in a “no-man’s land” north of the border but south of the wall.²

Maximize Compensation Rather than Fight the Taking

How will landowners be compensated for loss of use of the land south of the border or loss of overall value of the land due to the division? How much land will be taken? These questions and others surrounding compensation to landowners will likely be the only fight landowners can put up in the taking of their property.

The sole defense a landowner has against an eminent domain action brought by the United States is that the government lacks the authority to take the property. The Fifth Circuit Court of Appeals, however, has warned that courts should not “second-guess” governmental agencies on issues of necessity, expediency, policy, and propriety. (U.S. v. 1.04 Acres of Land, 538 F. Supp. 2d 995, 999 (S.D. Tex. 2008).) Once Congress has approved a project, the taking for any purpose associated with that project becomes an “authorized purpose.” The only exception would be if a court found that “no reasonable man could conclude that the land sought to be condemned had some association with the authorized project”—a very high standard to meet. (Id.)

Therefore, with the possible exception of political pressure by organized landowners, a long-shot challenge to the constitutionality of the Secure Fence Act itself, or a unique circumstance on a given property, challenges to the taking of your land will most likely be unsuccessful and, in any event, costly. In most cases, landowners should concentrate their efforts on maximizing compensation for their condemned land.

You May Be Entitled to More Compensation than You Think—and More than What They Offer You

The Constitution guarantees the payment of just compensation when private property is acquired for public use. Just compensation is based on the fair market value of the land taken, typically determined by unit prices of comparable sales. In simple terms, if similar land in the area of your property sells for, say, $50,000 - $75,000 an acre, the value of your land will likely be based on that unit price times the number of acres taken, subject to adjustments for various factors such as development potential, size, access, shape, topography and others.

But compensation is not limited to the value of the land taken. Although the government may require only a strip of your land for the wall, compensation for the taking may go well beyond just the value of the condemned property itself. As a result of the taking, the fair market value of your land on the other side of an impenetrable wall may be little or nothing. Accordingly you should be entitled to damages for the amount of the decreased value of that land. You may also be entitled to compensation for the amount of any reduced value of the land north of the wall. Federal law authorizes these “severance damages” to the remainder parcel left behind after the taking of a portion of the parcel. (U.S. v. Pope & Talbot, Inc., 293 F.2d 822, 824 (9th Cir. 1961).) Damages are typically measured by comparison of the value of the whole “before” parcel with the value of the remainder after the taking. (United States v. 8.41 Acres of Land, 680 F.2d 388, 392 n. 5 (5th Cir.1982).)

It is not hard to imagine that land cut off south of the wall will have little or no value in the market. Access may be eliminated, security could be an issue, and the view of the back of a concrete wall is rarely a selling point. But the remainder of the property north of the wall may also suffer decreased market value. This might result from decreased aesthetic values (if they are relevant to market value of the particular property), impacts to farming and other business activities, and lost access, among other factors.

Other compensation may be available, as well. Construction of the wall will require the government to condemn additional temporary construction easement rights on many properties. The value of these rights is typically determined by the reasonable rental value of the land during the period of construction. This could be several months or even years in some cases. In addition, if you own or operate a business on land affected by the project, you may be entitled to certain expenses to cover the relocation of that business, even if it is only a few hundred yards to the north.

Determination of the value of the land will also affect whether the landowner can recover attorneys’ fees and costs. Fees and costs are recoverable if the condemnee is the “prevailing party,” which is defined as the party who obtains a final judgment “at least as close to the highest valuation of the property” proposed by the landowner as it is to the highest valuation of the property proposed by the government. (28 U.S.C. § 2412.)

It is in the government’s interest to settle compensation claims early, which may put the landowner in a stronger bargaining position. When it first began erecting barriers under the Secure Fence Act, the Bush administration faced many years of legal battles with landowners. While many landowners settled out of court, an estimated 320 eminent domain cases ended up before a single district court judge in Brownsville, Texas. The average case resolved in three-and-a-half years. In the case of Eloisa Tamez, whose three-acre property was cut in half by the project, the litigation lasted seven years before it was finally settled.

The cost, time and difficulty of taking all the property necessary to build President Trump’s wall will be substantial. Litigation increases these costs, perhaps adding to pressure on the administration to scale back the project, as was the case with the original border fence. Indeed, John F. Kelly, the DHS Secretary, recently told Senators on the Homeland Security Committee that “it is unlikely that we will build a wall from sea to shining sea.”

What You Can Do

Landowners rarely welcome government taking of their property, and this is especially true when that land has personal significance above and beyond the economic value of the property. The politics and controversy of the border wall may also raise additional concerns for some landowners. And although money may not compensate for these non-economic concerns, maximizing compensation should always be a goal.

Initial offers of compensation rarely match true market value and actual damages, and do not include opportunity costs. Thus, taking the original amount offered by the government often leaves money on the table. Working with appraisers with local knowledge of market value, and with attorneys versed in condemnation law can help you make sure that you receive all of the compensation to which you are entitled.

¹ While lawsuits are pending, the federal government can, in many cases, take possession and title to land by filing a declaration of taking. (40 U.S.C. § 3114; City of Oakland v. U.S., 124 F.2d 959 (9th Cir. 1942).) Although, at a recent appraisal industry conference attended by one of the authors, a lead appraiser for the government agency charged with appraising property for initial offers of compensation to landowners affected by the wall indicated that his office had not received instruction to begin appraising or any information on when such activity might begin.

² In fact, this occurred in some cases after the construction of the original portions of a border fence.