Although approval for a new border wall has yet to come, the Trump administration has taken subtle steps to be able to seize land to build one, including by restarting litigation that has laid dormant for years against landowners, according to a new report from Senate Democrats.
Roughly two-thirds of the US-Mexico border runs through private or state-owned lands, meaning the federal government would need to purchase, seize or seek permission to use land in order to build a border wall. Based on efforts a decade ago to build border fencing, that process is likely to cost the government millions and could take years of complex litigation.
And it appears the administration is gearing up for it.
Democrats on the Senate Homeland Security and Governmental Affairs Committee produced a report on eminent domain and a border wall on Monday, citing the administration’s lack of clarity about what would be required to build President Donald Trump’s proposed wall.
The committee points to signs that the administration is preparing for a fresh round such fights, as Congress continues to debate whether to give the Department of Homeland Security any money to build new barriers on the Southern border.
In July, Customs and Border Protection issued a notice related to a project to shore up existing fencing the Rio Grande Valley, which also foreshadowed more to come.
“Using existing funds for preparatory activities, CBP and (US Army Corps of Engineers) will soon begin public-facing real estate research activities for (Rio Grande Valley) border wall requirements in the President’s FY 2018 budget,” the notice said, citing in-person research on property records at courthouses.
Asked about the notice, Carlos Diaz, a spokesman for CBP, said the research included soil-sampling activities and pointed CNN to congressional testimony from CBP leadership that spoke generally about prioritizing efforts on the Southwest border, including to “leverage expertise in federal acquisition.”
The staff conducted interviews with residents along the border who have personally experienced eminent domain cases. One, Noel Benavides, told the committee that condemnation proceedings on his land were initiated in 2008, but laid dormant for years — until February.
A review of court records in his case showed that in the first days of the Obama administration, all deadlines in the case were suspended, upon request of both parties. For eight years, the only action in the case were status reports and attorney changes, until early this year. In March and April, the government filed amended complaints and proceedings over the land began again.
The US Attorney’s office did not immediately respond to a request for comment about Benavides’ case.
The report also points to the administration’s budget requests for next year, which seeks an additional 12 attorneys for $2 million in the Justice Department specifically to handle land acquisition cases.
The staff notes that the administration has thus far been unable to answer Democrats’ questions about how many eminent domain cases it anticipates it will need for the President’s border wall. The fiscal year 2018 budget request sought $1.6 billion for 74 miles of border barrier.
“The committee was informed that the administration cannot provide the committee with any definitive real estate costs or requirements, cannot tell the committee how many American citizens will have their land seized, and has no timeline for completing land acquisition efforts necessary to build the wall that President Trump has ordered,” the report said.
In the past, land cases related to border fencing were costly and lengthy.
A CNN investigation earlier this year found that for 654 miles of sporadic fencing, more than $78 million was spent on some 600 parcels, and an additional $25 million is expected to be paid in unresolved litigation. Scores of cases still remain unresolved in federal courts today, up to a decade later.
The committee investigation found that for 211 miles, 600 different tracts of property and 330 condemnation lawsuits were required.