HOUSTON – Before the wall, there was the fence. And the U.S. is still paying for it.
As President Donald Trump tries to persuade a skeptical Congress to fund his proposed multibillion-dollar wall on the Mexican border, government lawyers are still settling claims with Texas landowners over a border fence approved more than a decade ago. Two settlements were completed just this week.
The legal battles over a stop-and-start fence that covers just a portion of the border have outlasted two presidents. If the Trump administration presses ahead with plans to build some version of the towering, impenetrable wall the president has promised, the government may have to take hundreds more landowners to court, perhaps even some of the same ones.
The Secure Fence Act, which President George W. Bush signed into law in 2006 with the support of many Democratic lawmakers, set aside money for fencing to cover one-third of the roughly 2,000-mile (3,200-kilometer) border between the U.S. and Mexico.
About 650 miles of fence were eventually built, just 100 miles of them in Texas, which has the longest border of any state with Mexico. The uneven course of the Rio Grande, rough terrain and private land ownership created a host of engineering and legal obstacles and required hundreds of deals with individual property owners for some of their land.
In the Rio Grande Valley, the southernmost point of Texas where most migrants are arrested, sections of the 18-foot-tall metal fencing stop and start in neighborhoods and on farmland.
The U.S. government can use the power of eminent domain to seize private property for a public purpose as long as it pays the landowner what the Constitution calls “just compensation,” but that process can take years if a landowner contests the seizure. The Justice Department eventually filed around 400 claims against landowners under the Secure Fence Act, though the government didn’t build on all the land it claimed.
Some landowners who have successfully resisted the fence for a decade received letters in recent months making them a new offer to settle, raising questions of whether the fence cases would pave the way for a wall. The Justice Department says it hasn’t started any cases related to a new wall and remains committed to settling around 90 cases still pending.
Those cases have been bedeviled by complications and delays and have left many landowners wary of what’s coming next.
One settlement completed this week was for $137,500 for about 1½ acres (about 6,000 square meters) next to the Rio Grande west of Brownsville, near a golf resort. The U.S. didn’t build fencing on the resort but did so on much of the land nearby. It then took nearly a decade to agree on compensation.
“It is exceedingly frustrating to the landowner to have to wait nine years to resolve a case and to have the government come in and take possession of it that long before he receives so much as a single dollar,” said Ken McKay, a lawyer who represented the family partnership that owned the land.
Rudy Cavazos was paid $7,000 last month for the less than a half-acre (about 2,000 square meters) taken from his property in San Benito, Texas. The government had already built a fence along a Rio Grande levee with the permission of the local water district, which was believed to own the land, only to find out that the tract actually belonged to Cavazos and about 20 other property owners.
After several years of inaction on his case, Cavazos decided late last year to settle because he was tired of meeting government lawyers and going to court.
“They paid me my peanuts,” he said. “It’s the bureaucracy 10 times over. They got a guy that comes over here every so often and talks to me, and hell, you expend that in your labor coming to talk to me.”
Three legal experts told a news agency that the Secure Fence Act already gives the Trump administration the authority to build something new and bigger on land it purchased for the fence. A barrier resembling the kind of wall Trump promised during his campaign might be seen as an evolved version of the existing fence, they said.
Ultimately, if the Trump administration wants to build something that’s bigger or covers more of the border, it will probably have to acquire more land and open possibly hundreds of new court cases.
While it is unclear what form the wall may take, Homeland Security Secretary John Kelly said last month that it is unlikely to run “from sea to shining sea.”
Trump himself employed eminent domain during his real estate career, including a 1990s case in which one of his Atlantic City casinos tried to force out a homeowner to make way for a parking lot.
But Mark Krikorian, executive director of the Center for Immigration Studies, which supports tighter controls on immigration, said a border wall presents bigger challenges than a single casino or hotel, with hundreds of landowners and lawyers already preparing to fight it.
“It’s going to take longer and end up being more difficult than the president originally thought,” he said.