Border fence land suits continue despite construction delays

The Monitor
November 16, 2008

Government efforts to seize private land for stretches of border fencing will continue even though construction has been put on hold in parts of the Rio Grande Valley.

The U.S. Department of Homeland Security confirmed earlier this month that it has halted efforts to build 14 miles of "movable fencing" in Los Ebanos, Rio Grande City and Roma, pending review by the next presidential administration.

But Justice Department lawyers said Friday they will continue to pursue 240 lawsuits filed against Valley landowners in anticipation for the project's revival in those areas.

"Construction postponement does not affect the outstanding condemnation suits," department spokesman Andrew Ames said via e-mail.

The Department of Homeland Security cited trouble securing private lands in South Texas as one of many reasons that the border barrier would not be completed by its Congressionally mandated Dec. 31 deadline.

Concerns that the movable fence planned in Starr and western Hidalgo counties could pose a flood risk to communities there were blamed for the most recent delay.

Currently, 80 Valley holdouts still have eminent domain lawsuits pending in court. The sticking point for many is fair compensation for their land.

Oscar Ceballos, of Brownsville, believes federal government appraisers undervalued the Cameron County property on which he lives and runs his trucking business.

The Justice Department offered him $1,600 for 0.26 acres of his land. But he and several other affected landowners have asked U.S. District Judge Andrew Hanen to let a jury of local residents decide the fair price.

While Hanen has repeatedly indicated that the government is entitled to take the property it is asking for, he has appeared willing to hear the landowners out on the offered prices.

"We believe a jury can take into consideration all of the unique circumstances affecting our client's property - its historical use and its future use," said Ceballos' attorney, Celestino Gallegos of Texas RioGrande Legal Aid. "The city is moving out his way and he both lives and works on the property."

Justice Department attorneys, meanwhile, have suggested their own alternative - a three-member panel of court-appointed land experts that will review each case and settle on a fair price. The same panel could be used to review all of the condemnation lawsuits.

"The government believes that trial before a commission will lead to uniformity and fairness for all landowners," Ames said.

Governments typically opt for such panels in hopes of avoiding the risk that juries will inflate the actual value of the land, said Marc K. Whyte, a San Antonio-based eminent domain attorney who is not involved in the ongoing border fence suits. Valley juries are also notorious across the state for awarding large monetary judgments to individuals over large corporations and government entities, he said.

"This is just an effort to try and control the money the (landowners) are going to win before a jury," he said.

Hanen is expected to make a final decision on how these cases will be reviewed in the coming weeks.

In all, plans call for 70 miles of segmented fencing in the Rio Grande Valley. But so far, construction has only begun in Cameron County. Contractors have been working on several segments of an enhanced levee that doubles as a border barrier in Hidalgo County since the summer.

Border fence construction in Los Ebanos and Starr County could resume again as soon as next year, government officials said.

http://www.themonitor.com/articles/fence_19928___article.html/border_land.html