We previously wrote about the physical wall that is to be constructed between the United States and Mexico.  The immediate construction was authorized by Presidential Order on January 25, 2017.  President Trump is asking Congress for $4.1 billion through next year to start construction.  The estimated cost to build the wall ranges from $20 billion to $70 billion.

Building the structure will require acquiring private property through eminent domain.  This is not a popular idea anywhere, least of all in Texas.  According to the South Texas Property Rights Association which represents more than 600 landowners, the situation is a “conundrum” for the GOP which normally has traditional conservative support for property rights.  Then there is the staggering cost for something that is not generally viewed as all that necessary.

The proposed wall also faces numerous lawsuits.  The property owners have the support of many Texas politicians in a state where land ownership has an almost mythic resonance, and their opposition to a border wall could delay any construction by years while lawsuits wind through the court system.

Mr. Trump and John F. Kelly, the Homeland Security Secretary, have said they can build a wall in 24 months, even though Congress did not include any funding for construction in its latest spending bill.  Fresh legal challenges, along with the existing ones, make that timetable highly unlikely.

The landowners’ strategy is clear: Use the courts to forestall construction and try to outlast the tenure of Mr. Trump.

Indeed, those closest to the perceived dangers of illegal immigration are providing perhaps the most formidable opposition to the President’s plans.  They are well aware that their land has become a major point of transit for drug traffickers and smugglers, and some have been victims of crime.  But they also believe that the border is already heavily patrolled by drones, federal agents and the local authorities, and contend that a wall would have mainly a symbolic value at the cost of their land.  N.Y. Times, “Trump’s Wall Faces a Barrier in Texas: Landowner Lawsuits,” (Ron Nixon) May 7, 2017.

There has also been a history of lowball offers for land acquired several years ago for border infrastructure.

In another Texas eminent domain story, “Eminent Domain Fight Pits Two of Texas’ Sacred Cows Against Each Other,” Houston Chronicle (L.M. Sixel, May 12, 2017), it was reported:

A study of nationwide eminent domain practices by Texas A&M School of Law found that landowners in Texas are in a “precarious position” from the onset.  While Texas entitles landowners to recover the market value of their property, landowners — not the entities taking the land — have to pay for appraisals to determine the value.

“Landowners who challenge just compensation are often never made whole when their property is taken for public use,” the report concluded, “because any amount they receive will be reduced by the fees needed to win the suit.”

Property rights groups have tried for years to change state law to allow landowners to recover legal costs if their challenges in eminent domain cases succeed.  A bill that would have done that during the 2015 session passed the Senate, but died in the House.

In this regard, New York does provide a superior statutory procedure to be made whole.

New York’s Eminent Domain Procedure Law (EDPL), § 701 provides that when an award in a condemnation proceeding was “substantially” in excess of the condemnor’s proof on the trial, the trial court, in its discretion, if required to afford a claimant “just compensation,” could award a claimant an additional allowance of his litigation expenses, including attorneys’, engineering and appraisers’ fees.

The reason for the statute is that a condemnee cannot be made whole when the award claimant receives is just compensation if it must deduct from that just compensation the expenses of litigation.  By definition, it must receive less than just compensation.  The statute solely related to that and, as long as the award was substantially in excess of the initial offer that brought claimant into court, this enactment has nothing to do with what and how much was thereafter claimed.  If the expenses for which reimbursement is sought has a logical connection to the recovery.

Posted in Attorneys' Fees, Border Wall, Landowner Lawsuits, Property Rights
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