February 2, 2009
By Christopher Sherman
McALLEN, Texas — The federal government has offered the approximately 80 South Texas landowners headed to trial over what the government will pay for border fence land a hint of how their cases will proceed, and it looks like a long court fight ahead.
In what appears to be a first for the dozens of border fence cases slated for trial later this year, the government and a landowner have exchanged professional appraisals for a large swath of agricultural land near Brownsville.
The government's position: The 18-foot tall fence will not devalue the 459 acres of farmland that will be trapped between the fence and the river, said landowner attorney Kimberli Loessin, who received the government's appraisal.
Unlike the U.S.-Mexico border in Arizona, New Mexico and California, the border in Texas meanders with the Rio Grande. The border fence sections run in mostly straight lines along a levee that is sometimes close to the river, but is often more than a mile away, leaving farmland in the middle.
The appraised Borzynski Brothers Properties land starts at a road east of Brownsville and spreads out toward the Rio Grande. The government wants to buy a 1.16-acre strip, 45 feet wide and 1,127 feet long where their property meets the road to build the fence.
While gates are planned intermittently along fence segments, one will not be built for the Borzynski land. That means farmerworkers will be forced to take their tractors and trucks through gates elsewhere and cross other landowners' property to reach their own.
"Our appraiser thinks there is a substantial impact on the market value of the property," Loessin said.
Loessin declined to share the appraisal amounts, but said the government's appraisal was less than its initial offer, which according to court documents, was $23,100 in April.
Merrill E. Swanson, a San Antonio-based appraiser and member of the American Society of Farm Managers and Rural Appraisers executive council, said he would look at drainage, soil quality, oil and gas activity and water rights among other factors, but the loss of direct access would be "a major negative." His firm is doing an appraisal related to the border fence in the Eagle Pass area, but Swanson is not involved.
"Anything that impairs your access is a problem and there should be some adjustment made for that lack of access," Swanson said. "The market would recognize there's a difference in price for that kind of access."
John McClung, President and CEO of the Texas Produce Association, said farmers along the river — both those whose property the fence will traverse and those completely south of it — have been worried about the compensation issue.
"That land will still be worth less than it is now," McClung said.
The Borzynski trial, which this week was pushed to the May docket of U.S. District Judge Andrew Hanen in Brownsville, will likely become a showdown between each side's expert appraiser.
That makes Hanen's decision in December to hold jury trials on compensation, rather than leaving it to a three-member land commission, a key victory for landowners.
"The government is going to have a hard time convincing a jury that that's not going to cause substantial damage to any landowner," said Albert Villegas, an attorney representing several border properties. He said case law supported the argument that a landowner is inconvenienced by the lack of access and that the fence would damage the land's marketability.
John Minor Jr., the Harlingen-based appraiser who performed the analysis for the government, declined to comment, saying his appraisal for the government is confidential.
Justice Department spokesman Andrew Ames wrote in an e-mail that federal law requires the government to compensate landowners for the diminished value of the remaining land, but that there must be "strict proof of a loss of market value."
Ames pointed out that property owners will still be able to use their farmland, water rights will not be impacted and their access to their property will only be "minimally impacted" because of gates in the fence. Also, land below the levees is in a floodplain where there is real potential for loss of life and property from flooding and the presumed highest and best use for the land is farming, he wrote.
Richard Schell, a McAllen attorney also representing border fence landowners, said Minor may have rested his appraisal on the fact that the land is still arable and still has access to water, if not its owners.
Still, he said, "I have a hard time seeing how a jury is going to buy that."
At a July 31 hearing, Virginia Butler, Chief of Land Acquisition Section for the Department of Justice's Environment and Natural Resource Division, explained that the government calculated compensation by comparing the value of the total property before the government took its slice to the total value of the remaining property.
So if the appraiser determines there has been no impact to the land that remains, the government only pays for what it takes.
Schell's case, which deals with a piece of land that will be bisected by the fence leaving about 100 acres between it and the river, has been scheduled for trial in December.
"We really want to see the wall up before we decide how damaged we are," Schell said.
While slightly more than 600 miles of the 670 miles of border fencing is finished along the nearly 2,000-mile U.S.-Mexico border, the government has not started building border fence in Cameron County. Schell's client's land is located near Bluetown, west of Brownsville. Government officials have told him work could begin as early as next week.http://www.chron.com/disp/story.mpl/ap/tx/6250880.html#