Thread: TEXAS LANDOWNERS SLOW FENCE IN COURT-BUSH'S JUDGE

Hanen, a Bush appointee, has slowed the government considerably from its preferred pace.

http://www.chron.com/disp/story.mpl/front/5623495.html


March 16, 2008, 9:27AM
Texas landowners slow border fence's progress in court


By CHRISTOPHER SHERMAN
Associated Press


McALLEN — South Texas landowners fighting border fence surveys have gained traction in court and could keep the federal government from meeting Congress' demand for 670 miles of Mexican border fencing by the end of the year.

One case has already held up dozens of others for more than a month. Its outcome could mean further delays for 38 more cases scheduled for hearings this week.

The Justice Department has sued more than 50 property owners in Texas this year — a total of 75 along the whole U.S.-Mexico border — after the owners refused to allow workers onto their property for preliminary work such as surveys.

No Texas judge has ruled in favor of the landowners, but a recent ruling from U.S. District Judge Andrew Hanen ordered the government to first try to negotiate the price of access with landowners.

The Department of Homeland Security has won access in 35 of those cases, according to U.S. Customs and Border Protection. Most of the nearly 500 property owners in the fence's path gave voluntary access to their land and as of Feb. 21, 303 miles of fencing had been built.

Communities along the Rio Grande in South Texas have fought hardest. They fear being cut off from the river and agricultural lands and bristle at the imposition of a plan hatched in Washington, D.C.

Earlier this month, Richard Stana of the Government Accountability Office testified to a House subcommittee that "keeping on schedule will be challenging because of ...difficulties in acquiring rights to border lands" among other factors.

Barry Morrissey, a U.S. Customs and Border Protection spokesman in Washington, D.C., said last week that while he cannot predict the future, "we remain optimistic that we can stay on schedule."

Hanen, a Bush appointee, has slowed the government considerably from its preferred pace. He has repeatedly denied government motions for immediate access and instead held hearings for property owners to voice their concerns before ultimately siding with the government.

Hanen's more deliberate approach came in stark contrast to U.S. District Judge Alia Moses Ludlum, who in January ordered the small town of Eagle Pass to surrender 233 acres of public land to the government before the city could even muster a response.

On March 7, in a 32-page ruling produced after a month of deliberation, Hanen gave the federal government two weeks to prove it had made a bona fide effort to negotiate a price for temporary access to Cameron County landowner Eloisa Tamez's property.

"I don't consider...that they've negotiated with me when all they've done is contact me to sign a waiver," said Tamez, director of the nursing program at the University of Texas at Brownsville and Texas Southmost College. The university, which also lies in the fence's path, is scheduled to appear before Hanen Wednesday in Brownsville for its own hearing.

The federal government offered $100 Tuesday to Tamez through her attorney, Peter Schey, president of the Los Angeles-based Center for Human Rights and Constitutional Law. For that, the government would have gotten six months of access to Tamez's one acre, a remaining piece of a Spanish land grant to her family in El Calaboz.

But Schey said they will not agree upon a price until the government defines access. Will it be unintrusive surveying or will a house on the property have to be torn down or moved?

Lawyers scheduled to appear before Hanen this week in McAllen and Brownsville said they have studied the Tamez ruling closely and are optimistic it will change the process.

"I'm anticipating that the (Tamez) standard is going to be the universal standard and (Hanen) will apply it to all the cases," said G. Allen Ramirez, attorney for the Rio Grande City Consolidated Independent School District. The district sits on a 132-acre campus that extends to the Rio Grande and the fence is likely to cut through its property.

Ramirez said there were no meaningful negotiations with the government before it announced its plans to seize the land by eminent domain.

Daniel Rodriguez, a law professor at the University of Texas, said that while Hanen can urge the government to negotiate a price, it could be vulnerable under appeal.

"That's pretty much untethered from what's in the eminent domain clause," Rodriguez said.

Schey wants the government to negotiate with even those property owners who voluntarily signed waivers because they did not know they could negotiate.

Schey filed a countersuit on behalf of Tamez and is seeking class action status for all affected property owners.

"In order for this wall not to be built on a foundation of illegality and lawlessness," property owners must have a chance to take back their waivers, Schey said. "They've been hoodwinked."

Hidalgo, Starr County Border Wall Cases in Court Today

Updated: March 17, 2008 06:26 AM PDT


The legal showdown over the border fence is expected to take the center stage in the Upper Valley Monday afternoon.

Some 26 border wall lawsuits from Hidalgo and Starr counties are scheduled to be heard at 2 p.m. Monday in McAllen before U.S. District Court Judge Andrew S. Hanen.

The federal government sued 33 landowners including the City of Hidalgo Economic Development Corporation and the Rio Grande City Consolidated Independent School District for access to their land to build the border fence.

Both the Hidalgo EDC and the Rio Grande City CISD are expected in court Monday.

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