Thursday, October 24, 2013

Court rules feds aren't liable for problems caused by border fence

Arizona Daily Star
October 24, 2013
by Howard Fischer

PHOENIX — Federal officials are legally entitled to be negligent in fencing the border without worrying about getting sued over the damages their actions cause, a federal appeals court has ruled.
The 9th U.S. Circuit Court of Appeals rejected arguments by the owners of Gringo Pass in Lukeville that the Department of Homeland Security owes them $6 million in damages from flooding they say was caused by the new border fence.

In their unsigned ruling, the judges sidestepped the entire question of whether the fence was improperly designed or constructed. Instead, they concluded that federal law gives Homeland Security broad discretion in how it meets its primary goals of securing the border.

And that, they said, ultimately makes the federal government immune from suit.

Attorney Joel Herz, who represents the plaintiffs, would not comment about the ruling or whether further appeals are contemplated. But this is the second court to conclude that the owners are out of luck, at least as far as getting legal redress.

According to court records, Gringo Pass has operated a grocery store and gas station since 1966 on land adjacent to the international border, west of the port of entry and east of Headquarters Wash.

A 1996 federal law requires Homeland Security to take certain actions to secure the Southwest border, including building at least 700 miles of fence. That law also allows the agency chief to waive any legal requirements determined necessary to ensure the “expeditious construction of barriers and roads.’’

In seeking bids, the Army Corps of Engineers said it wanted to keep individuals from crossing the border. It also included provisions to permit water and debris to flow freely through the cross-border washes.

The 5.2-mile stretch of fence was completed in 2008.

After a storm that summer, the National Park Service, which operates the nearby Organ Pipe National Monument, found that the fence had interrupted the flow of the wash.

The owners of Gringo Pass also reported damage and filed suit, a claim that was later amended to include subsequent problems following a 2010 storm.

But the company did not get a chance to even present its case to the jury.

U.S. District Court Judge David Bury said lawsuits for negligence are allowed against the federal government. But the judge also noted there is something called a “discretionary function exception’’ to those laws.

“When the discretionary function exception is applicable, it must be applied, even if, through application, it becomes a shield for carelessness and poor judgment,’’ Bury wrote. And he said that protects federal employees from suit “even if, in hindsight, it appears that they should have exercised their discretion differently.’’

And Bury said that, in this case, Homeland Security was entitled to that protection. He said the agency was specifically required to exercise its judgment to design, implement and maintain the fence.

Attorneys for Gringo Pass argued that Homeland Security violated environmental standards by not removing debris from the fence. They also said the design was not in conformity with standards for flooding by the United States International Boundary Commission.

But Bury said those issues are irrelevant, as neither represents federal law or policy that mandated the design or construction of the fence.

Tuesday, October 1, 2013

Ownership questions arise in 21 border fence cases

Brownsville Herald
September 30, 2013
by Mark Reagan

Five years after the U.S. government seized land along the U.S.-Mexico border between Los Indios and Brownsville for the border fence, it still isn’t sure who all the landowners were and who needs to be compensated.

Last Tuesday, U.S. District Judge Andrew S. Hanen had 21 border fence condemnation cases on his docket after the U.S. Attorney’s Office, Southern District of Texas, requested a status conference hearing to try to sift through some confusion in the cases.
The land involved in the cases is within Section 0-14 of the border fence, immediately to the east of the Los Indios Port of Entry, court documents show.

“The United States requests this status conference with the Court for the purpose of presenting its proposal to 1) identify the actual owners of the condemned tracts and the yet to be filed tracts in 0-14; 2) consolidate the tracts so that the entirety of the condemned land in question is in one case; and 3) sever the tracts from the consolidated case based on ownership boundaries in order to resolve title issues, just compensation and close the 0-14 cases on the Court’s docket,” court documents indicate.
Hanen ordered the USAO to draft a proposed order and have landowners and attorneys review it before presenting it to the court, according to docket text.

An attorney for one of the parties named in three of the suits agreed to speak to The Brownsville Herald about the hearing.

Lance Alan Kirby, who represents Robert B. Duncan in three of the cases, said the USAO used the status conference to explain to Hanen why the cases, most of which originated in 2008, were taking so long to resolve.

“His (USAO attorney E. Paxton Warner) explanation was that originally they were going to put the fence in a different place, but the berm wouldn’t support concrete so instead they had to use irrigation district property, which they purchased from the district but it turns out they didn’t own the property,” Kirby said of the irrigation district. “It was owned by landowners adjacent to it.”

Kirby said the Cameron County Irrigation District only had an easement, which was recently discovered and resulted in a title mess that the USAO is trying to clear up so it can proceed with condemnation actions and just compensation.

A spokeswoman with the USAO confirmed what Kirby told The Brownsville Herald.

“The judge’s take is he is ready to see this move and the landowners need to be paid for the condemnation since it’s been five years since the government has taken the property,” Kirby said. “The fence is there.”

He said that basically the USAO has to figure out who owns what and how much to compensate the landowners.

“They filed all these condemnation cases in 2008 because Paxton said they had a mandate to complete the border wall by 2008, and so they used appraisal district records to file condemnation actions instead of having the actual title work,” Kirby said. “Now they are getting title work and some people alleged to be owners are not owners and some of them, you know, there are new people still being added to the suit that they didn’t know about. So really what they have is a title mess that they are trying to clear up.”

The docket text also indicates that the court “has given the parties in the land condemnation cases, where the City of Brownsville is named, two weeks to write a letter if they intend to seek his (Hanen) recusal.”

The Brownsville Herald reached out to the city attorney’s office to request comment and was directed to file a public information request via the city secretary, Estela Von Hatten.

In an email responding to The Herald’s request for comment, Von Hatten replied: “In response to your public information request received on Sept. 24, 2013, the City has filed no motions to recuse the Honorable United States District Court Judge. Consequently, there is no document that would be responsive to your request.”

The Herald did not request documents so it’s not clear whether the city will seek to recuse Hanen.
As for the USAO’s pending proposed order on the 21 cases, Kirby said he wasn’t sure when it will be filed.

“They didn’t state when they are expected to get it,” he said of the proposed order. “So that’s something we’re curious as to when they are going to get it.”