Border fence foes see hope in judge’s ruling

Lynn Brezosky
Express-News

BROWNSVILLE — A federal judge’s ruling that the government must show evidence that it negotiated with landowners resisting a planned border fence might not slow the barrier’s construction timetable.

But lawyers for owners of property along the Rio Grande that might be in the fence’s path say it’s a ray of hope.

The ruling last week could affect at least 20 landowners due before U.S. District Judge Andrew Hanen on Monday, facing lawsuits for not allowing federal employees to survey their land to decide if and how fencing could be erected.

They include the Rio Grande City school district, the city of Hidalgo, and others in Hidalgo County who didn’t benefit from a plan to repair 21 miles of river levees in a way that doubles as a border fence.

The region is buzzing, meanwhile, with talk of delays, budget shortfalls, and holes in the levee repair agreement that Homeland Security Secretary Michael Chertoff worked out with the county last month.

Hidalgo County Judge J.D. Salinas said he had been asked to sign off on a nonreimbursement clause with the International Boundary and Water Commission, which would oversee the levee work, and feared county taxpayers might end up footing more than their share of the bill.

He said he was awaiting word from the government on a legislative or other fix. The county is under pressure to repair the levees before hurricane season begins June 1, Salinas said.

Hanen last week broke from a pattern set by other federal judges who have ruled that the government had a virtually automatic right of access to survey land for homeland security purposes.

Responding to a countersuit by University of Texas at Brownsville Professor Eloisa Tamez, he agreed that an amendment to the budget bill President Bush signed in December required DHS officials to negotiate with landowners before entering their land.

Hanen gave the government two weeks to show compliance. Tamez was jubilant, saying, “I’m feeling very hopeful that in fact the Constitution really can work.”

She said the “Declarations of Taking” that DHS officials have filed against at least 50 landowners sidestepped the law.

“We were not given the time of day,” Tamez said.

Abner Burnett, a lawyer with the Texas Civil Rights Project, said the ruling was a minimal victory for Tamez — encouraging, but “not Christmas,” as he put it.

“This is the first judge to say, ‘No, you need to go talk with these people and make some good-faith attempt to come to an understanding about how the entry is going to be made to survey and what likely effect this is going to have on the property,’” he said. “This requires the government to do more than just leave their calling card with the court and move on to the property.”

Texas Rio Grande Legal Aid attorney Celestino Gallegos said the ruling offered hope that landowners would get some say before government vehicles begin plowing through their yards.

“How often will they come in? Whether or not they’re going to store equipment? What trees will be knocked down? These are concerns for any landowner,” he said.

Gallegos’ clients include an elderly couple whose only home is on their targeted one-third of an acre.

U.S. Justice Department spokesman Andrew Ames said the government routinely negotiates before it condemns land and said Hanen’s order applied to “select cases where landowners are suggesting negotiations were not conducted or were inadequate.”

His ruling “is not the same as saying the United States has been operating in bad faith or that there needs to be some protracted negotiations process,” Ames said.

A significant announcement about the levee project could come soon, said Sally Spener, a spokeswoman for the boundary commission.

Cameron County Judge Carlos Cascos said his county could not afford a similar project. Hidalgo County voters had previously approved $100 million in flood control bonds.

Even if the money were available, Cascos said the International Boundary and Water Commission should be fixing its levees on its own. The Hidalgo repairs will simply allow floodwaters from a Gulf of Mexico hurricane surge to wash downriver into Cameron County, he said.

“This is a federal issue, and they should step up to the plate,” Cascos said.

DHS spokesman Barry Morrissey said any talk of delays in building the fence were not true.

“We’re still committed to 370 miles of pedestrian fence and 300 miles of vehicle fencing by the end of 2008,” he said.

Still, fence opponents have hope.

About 50 teachers, college students and others this week were walking on a nine-day, 120-mile protest along the fence route, sleeping at churches and getting honks of support along the way.

“Every one of those beeps is interpreted as a pat on the back,” Brownsville high school teacher Matthew Webster said. “The idea behind this protest is obviously to see the communities that are going to be impacted, but more importantly to broadcast the idea that this border wall is not going through barren wastelands, it’s going through backyards.”