Texans Fence with Federal Authorities
(International Relations and Security Network 03/4/2008)
Editor's note: This is part II in a short series on security considerations on the US-Mexico border. Part I can be found here.
When the Secure Fence Act of 2006 was made law in September of that year, the US Congress ordered the Department of Homeland Security (DHS) to "take appropriate actions to achieve operational control over US international land and maritime borders."
With illegal immigration at the top of the domestic political agenda, the DHS fell under pressure to increase security along the US-Mexico border to achieve "operational control" over the southern border. But no one suspected that the DHS would bypass private citizens' constitutional rights and ignore the law to succeed in its mandate.
Up against a 31 December 2008 deadline to construct some 700 miles of reinforced fencing between San Diego, California and Brownsville, Texas, the DHS has met a considerable amount of local resistance in Texas, where the Rio Grande defines a border but life on both sides of the river remains interconnected between families, businesses and a sense of community.
While most on the border in Texas would agree that an increase in security is in their best interest, they disagree with how the DHS has engaged them thus far.
At the federal level, the DHS has been mandated to negotiate with local land owners so government agents may have access to private land for survey and, eventually, construction.
A number of mayors who have banded together to form the Texas Border Coalition argue that their solutions for improved security are better and more appropriate for separate communities.
The DHS, it seems, would rather not listen. And by many accounts, the state government of Texas has remained silent with little criticism of the federal government or support for Texans fighting against an apparently illegal procedure.
Right of Entry
Along the border between El Paso and Brownsville, the DHS has sought permission to survey private land and determine the best route for a border fence.
According to the Secure Fence Act, DHS employees are required to negotiate a price with private land owners in exchange for access to their land. This negotiation process is legally supported by a number of laws that govern how the federal government may condemn private land, thereby gaining control for federal use, and the Fifth Amendment of the US Constitution. Once the negotiation is complete, according to the Secure Fence Act, the DHS may then access the land.
"The government is required to negotiate with people before it files condemnation suits, but it never made any offers," Emily Rickers, a lawyer with the Texas Rural Legal Aid organization, a group of lawyers assisting private land owners with their battle against the DHS, told ISN Security Watch.
Many Texans never had a chance to negotiate. They were simply told to sign a Right of Entry waiver, and warned if they refused to do so it would mean trouble.
Those who did sign the waiver relinquished control over their land, allowing the DHS and the US Army Corp of Engineers access and permission to use the land as they see fit.
Refusing to grant the DHS such broad access to their land, many Texans simply did not sign the Right of Entry waiver, pointing out that it was not a form of negotiation, rather a demand without compensation.
Local lawyers advised their clients not to sign the waivers because they gave land owners no additional rights to protect their land if the government destroyed infrastructure or otherwise rendered the land useless or of diminished value.
"Federal law does offer some protection for land owners, but the Rights of Entry waivers don't add to that," Rickers said.
If a government contractor's bulldozer destroys a barn or a water tower, the land owner has little legal recourse to seek compensation.
Still not willing to negotiate, the DHS notified dozens of land owners with a legal notice delivered on 7 December 2007 that if right of entry was refused, the DHS would prepare condemnation suits against them for access to their land. A short time later, dozens of these suits were filed against private land owners across Texas.
Pushing the DHS to circumvent local land owners' rights are members of Congress who count US$2.7 billion spent so far on border security fencing, according to a recent hearing held by the House of Representatives Committee on Appropriations Subcommittee on Homeland Security. Where is the value for taxpayers' money, they asked.
By many accounts, local strategies are far more effective than a one-size-fits-all strategy carried out by the government.
DHS Secretary Michael Chertoff has said he would use natural barriers where applicable, but local leaders along the border are not convinced this is the case.
Aside from the apparent disregard for negotiation, according to Rickers the DHS has not made much effort to seek local knowledge and expertise.
"It has been our experience here in the Rio Grande Valley, that [the government] just doesn't want to hear from anybody who has a different idea about how this project can get done, or [how] it can be less disruptive for people," she said.
Echoing her sentiments is Eagle Pass Mayor Chad Foster. He is also the chairman of the Texas Border Coalition and was part of his city's communication efforts with the DHS to provide expertise on what security measures best fit the needs of his city and government needs for operational control of the border.
According to Foster, after a number of meetings with DHS representatives, he received a proposal to increase security at the border in Eagle Pass by removing carrizo cane along the Rio Grande to increase line-of-sight visibility for Border Patrol agents surveying the river's edge and add high-power lights to the area around the city park and golf course that sit on the border. It was the perfect local solution for a national need to secure the border.
Foster told ISN Security Watch that he was assured there would be no fence element to these plans. He moved forward to put the plan to a vote with his city council. It passed three to two, with the two dissenters later telling Foster they voted against the DHS plan because they didn't trust it.
His lawyers were in touch with the DHS to make sure the government would not be able to legally slip in a provision that made building the fence possible when, like dozens of other land owners across Texas, he received a letter on 7 December informing him of a choice between DHS right of entry or legal action.
Eagle Pass city lawyers told Foster the letter did not apply. They were in direct contact with the DHS, and the Eagle Pass border security plan, as approved by the city council, would stand.
The city of Eagle Pass was sued by the DHS on 14 January. The government sought access to 233 acres of land along the river, passing through the golf course and city park as well as a couple miles farther north into the city's water filtration plant and residential development projects beyond.
"We get sued when we had been working in good faith with DHS," Foster told ISN Security Watch. "So we just don't feel that [DHS] was above board with their law suit.
"We thought it was a case of the left hand not knowing what the right hand is doing," he said.
In the suit, the DHS reinserted the construction of a fence into the Eagle Pass border security project and extended the fence 0.7 miles up river, where construction of the fence would cut off the flow of river water to the city's filtration plant and possibly disrupt plans to develop a new residential area.
In a 10 January letter addressed to Foster, the chairman of the DHS office responsible for state and local liaison, David Pagan, wrote that four factors contributed to fence location and design decisions: "(1) Initial operational assessments based on illegal cross-border activity and the Border Patrol's extensive field experience; (2) input from stakeholders, including landowners; (3) environmental assessments; and (4) engineering assessments, which include the cost to construct."
The DHS "is […] continuing to consider viable alternatives," Pagan wrote Foster, adding that "the feasibility of any such proposal can only be assessed, however, after fully considering the complex operational, financial, environmental and construction timeline requirements associated with the project."
Pagan went on to thank Foster for his offer to arrange meetings of consultation but declined Foster's offers to provide local expertise, as stipulated in the Secure Fence Act.
"We do not plan to suspend work on the construction of fence in order to hold a series of additional consultation meetings, as you have requested."
In a 16 January letter addressed to Pagan, Foster lamented that the DHS was unwilling to work with the group of border town mayors and take "additional time" to receive expert consultations on the best methods for securing the border.
"The DHS rejection of our proposal appears to be based on a fear that it will 'require delays to the timeline for installation of the border fence,'" Foster wrote. He challenged DHS claims of consultations with locals about the plans to construct a border fence.
"[The] Texas Border Coalition is unaware of DHS or Customs and Border Patrol town hall meetings to consult with the people of the Texas-Mexico border prior to publication of maps and plans for the wall […]."
Completing the fencing mandate on time, it seems, was more important than local expertise or land rights. And on 1 April, DHS Secretary Chertoff stated the US government would use two legal waivers to bypass environmental reviews and accelerate construction of border fencing. One waiver focuses on Hidalgo County, Texas where DHS will build an 18-foot fence through a wildlife refuge.
"Criminal activity at the border does not stop for endless debate or protracted litigation," Chertoff said in a statement.
Yet it's not certain that a border fence stops criminal activity. The Border Patrol has repeatedly stated that the reinforced fence ordered by the Secure Fence Act would do little more than slow down border crossers by a few minutes.
"The Congressional Research Service […] came up with a number for building the border fence and maintaining it for 20 years [and it] would cost tax payers some US$49 billion, and one of the biggest issues is it conveys a false sense of security," Foster said.
"Border Patrol has admitted this border fence will only slow down the illegal entry by about three to four minutes, and at a cost of US$49 billion, we just don't think that's good enough."