May 28, 2008, 7:44PM
First fence condemnation case reaches federal appeals court


By CHRISTOPHER SHERMAN Associated Press Writer
© 2008 The Associated Press


McALLEN, Texas — An elderly South Texas couple who toiled for decades as migrant farmworkers are the first landowners to reach a federal appeals court in their fight against condemnation for the border fence.

Attorneys for Hilaria and Baldomero Muniz and another landowner have asked a panel of judges at the 5th U.S. Circuit Court of Appeals in New Orleans to void a federal judge's order that they open their land to surveyors for the border fence.

They argue that the district judge erred when he allowed government officials to attempt to negotiate property access after suing. They say the law requires the government to try to strike a deal before — not after — filing a lawsuit.

"The federal government should be able to respect federal law," said Jerome Wesevich, an attorney with Texas RioGrande Legal Aid handling the appeal. "The government was very heavy-handed in the way it approached these people."

The appeals court has agreed to expedite case, but even so, oral arguments are not expected until early July, just a couple weeks before work is to begin on the border fence in Hidalgo County. The government is trying to complete 670 miles of fencing along the U.S.-Mexico border by the end of the year.

Based on a brief filed late Wednesday and testimony in March, Baldomero Muniz, 83, and his 78-year-old wife are unlikely trailblazers in the roily legal fight over the border fence.

The Munizes live in the tiny Los Ebanos community, tucked into a sharp bend in the Rio Grande. They bought their third of an acre in 1980 and built the house there over five years, during breaks in the migratory circuit that took them as far north as Michigan.

Now the Munizes subsist tending a few goats. Baldomero Muniz speaks only Spanish and does not read or write.

Last summer government officials asked Baldomero Muniz to voluntarily sign a form allowing them to survey his property for the border fence during a six-month period. The agreement would permit surveyors to bore holes in the ground, cut down trees or move or tear down the Munizes' house if necessary.

They offered him no money during those visits last June and September. He did not know that he could negotiate a price for the temporary access, and he refused to sign.

The government provided an affidavit in the original case stating that Muniz said he would like his daughter, who speaks English, to look at the form. The government said dogs loose on the property blocked subsequent attempts to visit Muniz at his home.

On Dec. 7, the government sent a form letter to Muniz again asking him to sign the voluntary agreement or face a condemnation lawsuit, which it filed about two months later.

Congress gave Homeland Security Secretary Michael Chertoff the authority to acquire property along the border "as soon as the lawful owner of that interest fixes a price for it and the Attorney General considers that price to be reasonable." If they cannot agree on a price, then the Justice Department can begin condemnation.

The Munizes and Pamela Rivas, who is also appealing and owns nearby property, argue that there was no offer of money or discussion of price until after the government started condemnation.

Earlier this year, federal lawyers filed dozens of cases against border property owners who refused temporary access to their property. In one of those cases, U.S. District Judge Andrew Hanen told the government that either it show evidence of a real attempt at negotiations with Eloisa Tamez, a property owner in neighboring Cameron County, or it start negotiations then.

"Dr. Tamez correctly asserts that negotiations are a prerequisite to the exercise of power of eminent domain," Hanen wrote.

After that ruling, the government made its first attempt to negotiate with the Munizes, whose case was to be heard the following week.

They refused because they considered it just a "litigation tactic," since the law called for those negotiations to take place before the government sued.

In April, Hanen issued separate, but similar rulings in the Muniz and Tamez cases among others.

Hanen ruled that the failed attempts to negotiate with property owners, even after condemnation lawsuits were filed, was sufficient. He suggested that dismissing the cases because negotiations were attempted after the fact, only to have them re-filed, would be frivolous.

The Muniz appeal seizes on that apparent bending of the law to avoid time-wasting re-filings.

Hidalgo County reached a compromise with Homeland Security to modify their levees to include a border wall rather than build a border fence. For most of the county, that meant the government wouldn't need to take private land. The exception is the Munizes' Los Ebanos community, which has no levees to modify. Construction is scheduled to begin in the county July 25.


http://www.chron.com/disp/story.mpl/ap/tx/5806449.html