Federal appeals court dismisses border fence case

Associated Press / Dallas Morning News
August 11, 2008

By CHRISTOPHER SHERMAN / Associated Press

A federal appeals court has declined to intervene in a pair of South Texas cases that were the first border fence landowner disputes to reach the appellate court level.

The 5th U.S. Circuit Court of Appeals in New Orleans said it did not have jurisdiction to jump into the case because the government had not finished the condemnation of two parcels of land in Los Ebanos.

Hilaria and Baldomero Muniz, an elderly couple who toiled as migrant farmworkers for decades before settling in the small community in Hidalgo County, had appealed after a district judge gave federal surveyors access to their property in preparation for construction of the fence on the U.S.-Mexico border.

Attorneys for the Munizes and another property owner, Pamela Rivas, argued that the district judge erred when he allowed government officials to attempt to negotiate property access after suing. They said the law requires the government to try to strike a deal before — not after — filing a lawsuit.

But in an opinion released Friday night, the appeals court said it could not get involved in the combined cases until the condemnation was complete. The Department of Homeland Security has filed final condemnation lawsuits against the Munizes and Rivas, but U.S. District Judge Andrew Hanen has not scheduled a hearing.

"The appellate court did not decide anything on the merits," said Jerome Wesevich, an attorney with Texas RioGrande Legal Aid handling the appeal. Once the district judge has closed the final condemnation, they will likely renew their appeal, Wesevich said.

Homeland Security is working to meet a congressional deadline to complete 670 miles of barriers on the U.S.-Mexico border by the end of the year.

Hidalgo County reached a compromise with the agency to modify their levees to include a border wall rather than build a border fence. For most of the county, that meant the government wouldn't need to take private land. The exception is the Munizes' Los Ebanos community, which has no levees to modify.

The government has more recently proposed a temporary fence because it would have to be built within the Rio Grande's floodplain where permanent structures that could divert floodplains are forbidden by treaties with Mexico.

Construction on two levee-border wall segments in Hidalgo County began last month.

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