Court gives U.S. access to Eagle Pass’ land in border fence dispute

WASHINGTON — Leaders in a small Texas border city felt blindsided Wednesday after learning that a judge had ordered public land turned over temporarily to the federal government as it works on a border fence.

U.S. District Judge Alia Moses Ludlum ordered the city of Eagle Pass to “surrender” the 233 acres of city-owned land by Tuesday. The Justice Department had sued for access to the land on Monday. Ludlum’s ruling came the same day, before the city could muster a challenge.

Meanwhile, officials in Cameron County, which is also facing construction of a section of the border fence, are closley watching developments in Eagle Pass.

The Homeland Security Department is trying to build 370 miles of border fence by the end of the year. A law signed by President Bush and supported by both of Texas’ U.S. senators mandated a total of 700 miles of fence along the border. The government had warned the city, which opposes the fence, that it would sue under eminent domain laws to secure access to the property.

The judge’s order, issued in the Texas Western District Court, Del Rio division, said the United States, the plaintiff, is entitled to possession or control of the property for 180 days.

“Well, that seems a little heavy handed,” Eagle Pass Mayor Chad Foster said Wednesday.

Foster leads the Texas Border Coalition, a group of border mayors, city officials and business leaders who oppose Homeland Security’s border fence plans and have complained that they haven’t had enough input on the effects of the fence on their communities.

Foster said the city of about 25,000 was served with the lawsuit Tuesday but not told of the ruling that had occurred Monday. City officials have been distracted by the arrest of the city manager on unrelated charges.

Foster said he’s confused by the “aggressive action” because his city attorneys have been drafting paperwork for an easement for federal officials to build a road and erect 15 light towers along the border on city land.

Cameron County also has been threatened with a federal lawsuit over the border fence issue.

Cameron County Judge Carlos Cascos said the county must cooperate with the federal government.

“I continue to maintain that, unless this fence act is declared unconstitutional, we don’t have any choice (to allow the Army Corps of Engineers access to county land for surveying),” Cascos said Wednesday. “It’s the law of the land. If a federal judge has ruled that Eagle Pass has to comply, how would we be any different?”

If a court orders the county to allow federal officials access to county land, he would hand it over to the county’s lawyers, Cascos said.

“We have not denied them access (to county property),” the judge said. “We just have not replied (to a recent letter from the Corps of Engineers demanding the county sign a document granting permission to enter county land). I don’t know why we, or the city of Brownsville, would be an exception.”

But a suggestion touted by Hidalgo County, for an 18-foot-tall concrete wall built on the southern side of the Rio Grande levee, could change the discussion.

The concrete wall would serve both the security purposes of the border wall and reinforce the levee for flood control purposes, which would fulfill local and federal needs, Cascos said.

“Our role is to provide leadership,” Cascos said of border counties. “We have a viable alternative … It makes sense.”

Precinct 3 County Commissioner David Garza of San Benito said he needs to learn more about the federal court order directed at Eagle Pass before commenting about how Cameron County should react.

“We’d have to check with our attorneys,” he said.

Precinct 4 Commissioner Edna Tamayo of Harlingen was not happy to hear about the ruling concerning Eagle Pass.

“I would be extremely disappointed, to say the least,” Tamayo said. “But (federal officials) have a big stick. We’ll just have to take it one day at a time.”

Such swift rulings are typical in land condemnation cases involving the federal government, said H. Dixon Montague, an attorney specializing in land condemnation and land use with Vinson & Elkins LLP law firm in Houston.

The judge can rule as soon as the federal government has notified the court that money to compensate the owner for being on the land is available, Montague said.

The Justice Department is expected to file 102 lawsuits against landowners to survey the property and decide where to put border fencing or other barriers or equipment.

Several landowners have given the government access to their land, including some who oppose the fence. Many others in Texas, Arizona and California have refused, prompting the lawsuits.

At least six lawsuits had been filed against Arizona landowners by Wednesday. One of the suits is for 29.1 acres in Santa Cruz County, Ariz.