Saturday, March 8, 2008
In its efforts to construct more border fencing along the U.S. - Mexico border, a federal judge in Brownsville, Texas, has reminded the DHS that proper procedures have to be followed. Here's a press release on a ruling that was issued yesterday.
COURT RULES SECRETARY CHERTOFF VIOLATING THE LAW IN BUILDING BORDER WALL
FOR IMMEDIATE RELEASE March 7, 2007:
In a 32-page decision issued today, a federal judge in Brownsville ruled that Secretary of Homeland Security Michael Chertoff violated federal law in his rush to build several hundred miles of border fencing in Southern Texas.
In a lawsuit filed by Secretary Chertoff in January against Dr. Eloisa Tamez, the Department of Homeland Security requested an expedited court order condemning Dr. Tamez’s land so it could immediately commence a survey for the planned border fence. Dr. Tamez is an indigenous land-grant property owner in South Texas who refused to voluntarily give the U.S. Government a six month right to enter her land to survey for the border wall,
About twenty cases filed by Secretary Chertoff to condemn land along the border have been consolidated before federal judge Andrew Hanen in Brownsville, Texas, and delayed pending the outcome of Dr. Tamez’s case.
In response to the government’s suit, the court held a lengthy hearing on February 7 at which Dr. Tamez’s lawyers with the Los Angeles-based Center for Human Rights and Constitutional Law argued that Secretary Chertoff had violated federal law by failing to negotiate with Dr. Tamez to arrive at a “fixed price” for the six month access it sought before suing to condemn the land to allow the survey to proceed.
In the decision issued today, judge Hanen ruled that “Dr. Tamez correctly asserts that negotiations are a prerequisite to the exercise of the power of eminent domain” under federal law. The court further concluded that Secretary Chertoff had presented “insufficient evidence ... as to whether there has been bona fide efforts to negotiate with Dr. Tamez.” As it has done for over a month now, the court refused to sign an expedited order condemning Dr. Tamez’s land so that the Department of Homeland Security can start a survey for its planned border wall.
The court also decided that a clause in the 2008 Appropriations Act for the Department of Homeland Security enacted in December 2007 that requires the Secretary of Homeland Security to consult with property owners to minimize the adverse impacts of any border activity is not a defense to the temporary access the Department seeks to conduct a survey, “but that it still may be a defense to later activity by the Government” when it seeks to enter her property: “Given the mandatory language of the consultation clause, that ‘the Secretary of Homeland Security shall consult . . .,’ this Court may find it proper to require compliance with the consultation clause, when appropriate, as a condition prior to entry onto the property after the taking has been completed ... Dr. Tamez’s objections concerning the failure of the Government to abide by the consultation clause are denied without prejudice to her ability to reassert those objections at a later point in time” if the Government actually seeks to enter her property.
The court rejected Dr. Tamez’s argument that if she and the Department of Homeland Security are unable after negotiations to agree on a fixed price for the right of temporary access to her land, that the government may only proceed to condemn her land under a federal law that grants her a right to a jury trial. The decision states that if the parties are unable to negotiate a fixed price for the interest the Government seeks in Dr. Tamez’s land, then the Department of Homeland Security may seek to condemn the land under an expedited procedure known as the Declaration of Taking Act.
The court ordered the Government agents “to either partake in negotiations and/or provide this Court with any relevant evidence they may have concerning the existence of bona fide efforts to negotiate” by March 21.
In a statement issued through her lawyers, Dr. Tamez stated: “The court’s order issued today vindicates my position that Secretary Chertoff has proceeded to seize my land and the land of other property owners in violation of federal law. On the other hand I am disappointed that the court ruled that Secretary Chertoff may use the expedited condemnation procedures after he negotiates with property owners to arrive at a fixed price for the use he seeks of our property. I am also pleased that the court appears to agree that property owners have the right to be consulted before Government agents actually enter our land. Under federal law the consultation we will insist upon must seek to minimize the adverse impact of any entry onto our lands on the environment and our cultural and economic rights. I intend to continue fighting this case to insure that Secretary Chertoff does not violate the law while rushing forward to build an ill-conceived border fence that will in many ways destroy border communities.”
Peter Schey, President of the Center for Human Rights and Constitutional Law, and Dr. Tamez’s lead counsel, responded to the ruling: “We will carefully study this decision to see how it may be used by other border property owners to protect their rights to the fullest extent permitted by law. Like border property owners, Secretary Chertoff is also bound by applicable laws and may not run roughshod over property owners’ rights in his rush to complete an ill-conceived border wall. The proposed border wall will do little to stop undocumented migration but it will significantly increase deaths and injuries by diverting migrants to more dangerous border crossings. Regardless of how ill-advised the proposed border wall is, it certainly may not be built on a foundation of illegal and lawless conduct by the Department of Homeland Security. We welcome the court-ordered negotiations with the Government to explore a fair price for the property access that Secretary Chertoff seeks in Dr. Tamez’s land. Once those discussions are concluded, we will demand that consultation take place with Dr. Tamez before any federal agents enter her land. By law these consultations must be aimed at minimizing any adverse impact of entry onto her land on the environment and on her economic and cultural rights. We will certainly also seek the same protections for all similarly situated property owners along the US-Mexico border.”
Arnoldo Garcia, Senior Policy Associate with the National Network for Immigrant and Refugee Rights that has been supporting Dr. Tamez’s lawsuit said: “It is time for Congress to reconsider building a Berlin-type militarized wall along the US-Mexico border. The more the border area is militarized and criminalized, the more migrants die trying to come to the US in search of little more than a better life and the ability to join or support their families. This country urgently needs rational and humane immigration reform, not walls that kill people. When Congress musters the courage to enact immigration reform, the need for a border wall will all but disappear. What good does it do to spend hundreds of millions of dollars on a border wall when half the undocumented immigrants enter the United States with non-immigrant visas, not through the US-Mexico border. Virtually all migration experts agree that we need to promptly legalize the undocumented population, issue a sufficient number of visas in the future to meet the known demand, and invest in sustainable development in the major sending communities abroad, not turn the United States into a fort surrounded by another Berlin wall.”
The court’s Order is available at http://www.nnirr.org/resources/docs/EloisaTamezCase3-7-08-Order.pdf
Peter Schey, Center for Human Rights and Constitutional Law, lead attorney for Dr. Tamez 323 251-3223
Arnoldo Garcia, National Network for Immigrant and Refugee Rights, 510 928-0685
Margo Tamez, daughter of Dr. Eloisa Tamez, Co-Founder, Lipan Apache (El Calaboz) Women Community Defense 509-595-4445