U.S. wins a fight on border fence

Web Posted: 04/11/2008 11:10 PM CDT

Lynn Brezosky
Express-News

BROWNSVILLE — University of Texas at Brownsville Professor Eloisa Tamez appears to have lost her battle to keep the government from surveying her Rio Grande-fronted property for the border fence.
In a decision released Friday, U.S. District Judge Andrew S. Hanen said the government showed sufficient evidence it had tried to negotiate for temporary access. He said the $100 it offered each property owner affected "might be a fair offer, or perhaps even excessive."


Tamez was the first to counter-sue after the government went to court against dozens of resistant landowners with "declarations of taking" on grounds it is a homeland security measure that must move ahead. Government lawyers have insisted that the surveying work will cause minimal if any damage to property.

Tamez argued that the declarations of taking amounted to seizing land without negotiation as required in a last-minute clause to last fall's federal budget bill. Reached Friday afternoon, Tamez said she had not yet heard of the order and needed to talk with her attorney.

Hanen on March 7 ruled that the government had a right to enter the land but ordered it provide proof it had tried to negotiate access terms and compensation.

"This court held that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) requires that the Government put forth a bona fide effort to determine whether an agreement can be reached with the owner of an interest prior to receiving possession of the interest in a condemnation action," Hanen wrote in this latest ruling. "Nevertheless, the Government's right to acquire property cannot be made a 'barren right' by the unwillingness of property owners to sell."

Friday's 13-page order includes eight pages of what Hanen said was proof of government outreach dating back to August 2007 and leading up to Tamez's March 20 suggestion that the government instead pay $100 per day. Government lawyers flatly refused.

"This is certainly a case where the parties are 'unable to agree on a reasonable price,'" Hanen wrote. "At such an impasse, (the law) does not require this Court to order further futile negotiations, but rather permits the government to continue with its condemnation action."

Asked for comment, Justice Department spokesman Andrew Ames e-mailed, "We're pleased."



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