Loophole could cost landowners

With 33 lawsuits pending against landowners in Cameron County, architects of the border fence have not yet cleared their final judicial hurdle.

U.S. District Judge Andrew Hanen will soon begin mediating the government's acquisition of private land along the border.

A legislative loophole, however, allows the federal government to begin construction of the border fence on private land before the next stage of the judicial process has been completed.

"The Declaration of Taking Act says that upon entering funds into the court registry, they can go ahead and do their work," said Tino Gallegos, an attorney with Texas Rio Grande Legal Aid. "The actual possession is not delayed."

The government has entered sums ranging from $1,000 to over $20,000 into the court registry, depending on the amount of land required for the fence and its maintenance. Many of the lawsuits deal with cases in which the federal government and the landowner were unable to agree on the value of the land in question without judicial mediation.

The U.S. Army Corps of Engineers estimates that approximately 100 ‘friendly' land condemnation lawsuits will also be filed in the state of Texas. In these cases, the federal government and the landowner have agreed on appropriate compensation, but a lawsuit is still necessary to clear the title of the land.

An official at the U.S. Army Corps of Engineers called the measure "an archaic obstacle," which is made necessary by convoluted land titles in South Texas.

In Brownsville, some landowners were confused by the concept.

"We already worked out our end of the deal," said Tim Loop, a Brownsville farmer who is named in one of the lawsuits. "I don't understand why we're being sued."

With the inclusion of ‘friendly' land condemnations, the total number of border fence-related lawsuits in Texas could swell to several hundred. No court date has been set for any of the 33 pending cases in Cameron County.

"Because we're talking about money and land being taken, many people won't be willing to settle out of court," said Emily Rickers, an attorney at TRLA.

With six months before the Department of Homeland Security's Dec. 31 deadline is reached, the Declaration of Taking Act might be the government's saving grace. The act will allow DHS to follow its plans to construct 670 miles of fencing before the potentially lengthy legal process concludes.

In March, Hanen ruled that the federal government's use of the Declaration of Taking Act was valid in border fence-related cases.