Judge makes landmark decision on border fence

After a one-month deliberation, U.S. District Judge Andrew S. Hanen has issued the most significant decision in the border fence’s short judicial history. In a case against Eloisa Tamez, who owns property along the barrier’s proposed path in El Calaboz, Hanen found that the federal government is authorized by the Declaration of Taking Act to condemn Tamez’s land. But according to the ruling, negotiations must take place between the landowner and the Department of Homeland Security before property is seized.

Immediately after the decision was filed on Tamez’s case, 25 previously pending cases — pertaining to land in Cameron Hidalgo and Starr Counties — were scheduled in Hanen’s Brownsville court on March 17 and 19, making him a critical actor in the border fence’s construction. Among the defendants in the next batch of cases are the Texas Southmost College District and the Rio Grande City Consolidated Independent School District.

At a Feb. 7 hearing, Tamez’s lawyer, Peter Schey, of the Los Angeles-based Center for Human Rights and Constitutional Law, argued that Department of Homeland Security Secretary Michael Chertoff had violated federal law by failing to negotiate with her over the value of her property before filing a land condemnation lawsuit.

In his decision issued late Friday, Hanen ruled that "Dr. Tamez correctly asserts that negotiations are a prerequisite to the exercise of the power of eminent domain." The ruling’s conclusion also states that "There is contradictory and insufficient evidence before this court as to weather there has been bona fide efforts to negotiate with Dr. Tamez."

"We want to see the Constitution working," Tamez said on Friday. "We want to see justice working. And it looks like that is what is happening."

It is unclear what form the court-ordered negotiation will take. The ruling states only that the government and Tamez, a nursing professor at the University of Texas at Brownsville and Texas Southmost College, must "either partake in negotiations and/or provide this court with any relevant evidence they have concerning the existence of bona fide efforts to negotiate" by March 21.

If the parties do not agree upon a fixed price for the property in question, Tamez’s land can be condemned under the Declaration of Taking Act.

"We welcome the court-ordered negotiations with the government and once those are concluded, we will demand that consultation take place with Dr. Tamez before any federal agents enter her land," Schey said.

He expects that the same negotiations will be ordered in subsequent border fence suits.

"The reassignment of cases to Hanen avoids the potential for decisions with different interpretations of the law," he said. "If (Hanen) believes that argument we made is right, he will apply it in the other cases."

For now, the court has refused to sign an expedited order allowing DHS to begin its survey of Tamez’s land — a preliminary step in the border fence’s construction.

Last week, a Government Accountability Office report claimed that current litigation in South Texas might cause DHS to miss its December 2008 deadline, by which 370 miles of fencing are supposed to be constructed.

"Meeting deadlines has been difficult because of various factors including difficulties in acquiring rights to border lands," the report stated.

DHS’ plans will be stymied until at least March 22, when the court will issue its ruling on the outcome of negotiations between Tamez and the federal government.

Ksieff@brownsvilleherald.com