A CNN analysis of lawsuits filed the last time the government seized land to build a border fence in 2006 found that property owners who fought to keep their land always lost and that the government often offered them thousands of dollars less than the land was worth.
Many court battles dragged on for years, stalling construction at times, according to the review of more than 400 federal lawsuits. In scores of cases, the litigation continues today.
The government’s land acquisition was also costly. More than $78 million was spent on some 600 parcels, according to US Customs and Border Protection officials. An additional $25 million is expected to be paid to settle unresolved real estate transactions and for litigation expenses, the agency said.
And that money covers only 654 miles of sporadic fencing that lines the 2,000 mile border.
If President Trump builds a “great, big beautiful wall” over larger portions of the border as he has vowed, there will likely be hundreds, if not thousands more landowners going to court to stop the take-over or to get a better price for their land, experts say.
Joseph Hein, whose 580 acre ranch has been in his family for nearly 100 years, says he’s against a border wall, especially if it runs through his property.
“I would fight this,” said Hein, standing on a ridge overlooking the Rio Grande River, south of Laredo, Texas. “A lot of us would fight.” The previous fence never got as far as Hein’s land.
“This is so wrong, you know, this is being done based on ignorance and fear and misinformation and assumptions,” he said.
Residents of the River Bend resort and golf club in Brownsville, Texas are also bracing for a fight. More than 300 residents live in tiny RV mobile homes or brick houses placed neatly around the golf course. While not wealthy, most are over 65, and enjoying retirement.
“Someone asked me what heaven would look like? And you know what I said? River Bend.” said Pat Bell, who moved there from Kansas two decades ago.
When the government built the border fence years ago, the resort presented a thorny problem, the results of which can be seen today: The fence goes right up to the edge of the resort on both sides, but leaves a large gap in-between.
The fence would have bisected the resort.
“If it did that, 70% of our property would be on the south side of the wall,” said Jeremy Barnard, general manager of the resort. “That would affect 15 of our 18 holes of the golf course and over 200 residences.”
Resident Bell said she’s a Trump supporter, but thinks his policy is misguided when it comes to the border. Fences and walls, she said, don’t work. And, she’s willing to go to court over her property.
“You hate to say it,” she said, “I will get a lawyer if it comes to that.”
The US Department of Justice said in a statement to CNN that acquiring land for the border wall was part of the nation’s “security policy” and that property owners would receive “fair market” compensation in exchange.
Former Customs and Border Protection Commissioner W. Ralph Basham, who oversaw some of the fence construction under the Bush administration, said officials often tried to negotiate with land owners to come up with unique solutions when the fence bisected their property, such as constructing gates so their livestock could pass through, which he said caused some construction delays.
“You had to deal with the property owner and work out an arrangement that made sense for both,” he said. “But when we just could not come to an agreement, then other measures had to be taken.”
The current border fence runs in stretches with significant gaps in places. That is especially true in the Rio Grande Valley, where the government took land from many property owners.
The reasons for the gaps are varied, experts said. Often topography dictated exactly where the fence could go. There were also concerns for hydrology, flooding or other environmental reasons. In some cases, federal officials decided to use other methods, such as surveillance technology and increased patrolling, to deter illegal border crossings in areas that posed construction challenges.
Barnard said he was told the River Bend golf club was bypassed because authorities at that time had other priorities and didn’t want to grapple with all the residents. Funding for the fence construction ultimately was frozen before the stretch of fence at the resort could be targeted.
In the 442 lawsuits reviewed by CNN, property owners always lost their land. Ninety-three cases remain open. The suits involved at least 678 property owners.
The litigation in each case started after federal authorities invoked its “eminent domain” power, which under the US Constitution allows for the seizure of private land for public use only if property owners are fairly compensated.
In most cases, property owners have little recourse to prevent their land from being taken. The litigation typically centers on whether they were offered a fair price.
On the campaign trail, President Trump suggested property owners are paid “a fortune” for their land. Experts who have studied eminent domain dispute that.
CNN’s analysis of the litigation found that in about a quarter of the cases a judge ordered the government to pay more to those who challenged the initial compensation offer. And, the number is likely higher because the government reached out of court settlements in many cases.
Norton Colvin, a trial attorney in Brownsville who has represented many landowners, said those who don’t have the financial means to go to court can “get steam-rolled” by the process.
It’s rare, he said, for landowners to get a check from the government for what their property’s worth. “It’s a struggle all the way to get anything close to fair compensation,” he says.
Experts say Trump’s plans for the border wall is likely to result in significantly more litigation than the border fence prompted a decade ago.
Only about a third of the border property is owned by the federal government, according federal authorities.
Rep. Henry Cuellar (D-TX), whose constituents own property in the projected path of a border wall, said many people are on edge and bracing for a fight.
“The citizens and local government are going to put up tremendous resistance,” he said. “It’s a costly logistical nightmare for both sides. If they want to put this [wall] on private property, there will be lawsuits and delays.”