U.S. v. 1.04 Acres of Land, More or Less

Decision Date07 March 2008
Docket NumberCivil Action No. B-08-044.
PartiesThe UNITED STATES of America, Plaintiff, v. 1.04 ACRES OF LAND, MORE OR LESS, SITUATE IN CAMERON COUNTY, State of TEXAS; and Eloisa G. Tamez, et al., Defendants.
CourtU.S. District Court — Southern District of Texas

Charles Wendlandt, Jr., U.S. Attorney's Office, Corpus Christi, TX, for Plaintiff United States of America.

Abner Burnett, South Texas Civil Rights project, San Juan, TX, for Defendants 1.04 acres of land, more or less, situate in Cameron County, State of Texas and Eloisa G. Tamez.

Peter Schey, Center for Human Rights, Los Angeles, CA, for Defendant Eloisa G. Tamez.


ANDREW S. HANEN, District Judge.


The Attorney General and Secretary of Homeland Security have been given a mandate by Congress to promptly acquire easements and immediately commence the construction of fences designed to deter illegal crossings along the United States border in areas of high illegal entry into the United States. Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, § 102, 110 Stat. 3009, 3009-555. According to this mandate, the Attorney General must proceed pursuant to the authority granted by section 103(b) of IIRIRA (now codified at 8 U.S.C. § 1103(b)) to purchase and/or take the necessary easements and land through condemnation actions. 8 U.S.C. § 1103 note (Section 102(b)(2)).1

Plaintiff, United States of America (the "United States"), filed a complaint in condemnation against Defendant Dr. Eloisa G. Tamez ("Dr. Tamez") and her property under the authority granted by 8 U.S.C. § 1103(b)(3) and 40 U.S.C. § 3113. (Docket No. 1). The complaint sought a temporary easement on Dr. Tamez's property to conduct surveying, testing and other investigatory work necessary to plan the construction of the fence and accompanying structures designed to secure the United States-Mexico border. (Docket No. 1, Exhibit Schedules B, E).

That same day, the United States filed a declaration of taking pursuant to 40 U.S.C. § 3114, requesting that this Court enter an ex parte order allowing the Government to deposit funds into the Registry of the Court and giving the Government immediate possession of the property interest pursuant to its actions under the Declaration of Taking Act ("DTA"). (Docket Nos. 2, 3, 5). This Court denied the United States' request for ex parte relief and held oral arguments on the motion on February 7, 2008. (Docket No. 7). Presently under consideration by this Court is the aforementioned motion as well as the opposition thereto. The Court has had the benefit of oral arguments by counsel for both parties and several written briefs from each side. (See Docket Nos. 5, 10, 13, 15, 16).

Dr. Tamez has also filed a countersuit, docketed as Cause Number 1:08-cv-0055, asserting similar objections to those she has raised in response to the Government's motion. As part of the countersuit, Dr. Tamez has filed a motion to certify the countersuit as a class action and a motion for a preliminary injunction. (Cause No. 1:08-cv-0055, Docket Nos. 9, 15). To further her countersuit, Dr. Tamez filed a motion to stay proceedings in this action. (Cause Number 1:08-cv-0044, Docket No. 13).2 The present order on the United States' motion for possession will be dispositive of many, if not all, of the issues in these other pending motions and those that are not resolved will be addressed in a separate order.

Dr. Tamez raises three primary objections to the United States' motion for immediate possession and exercise of its power of eminent domain in this action. In short, she asserts that the United States must strictly comply with the procedural, negotiation and consultation provisions of IIRIRA before bringing any type of condemnation action against Dr. Tamez and her property. She contends that these provisions must be complied with prior to the United States moving forward with its process of building the fence to secure the United States-Mexico border. The authority to secure the border is set out in 8 U.S.C. § 1103 note (Section 102(b)(1) and (b)(3)), stating:

[T]he Secretary of Homeland Security shall construct reinforced fencing along not less than 700 miles of the southwest border where fencing would be most practical and effective and provide for the installation of additional physical barriers, roads, lighting, cameras, and sensors to gain operational control of the southwest border.

. . .

The Attorney General, acting under the authority conferred by [8 U.S.C. § 1103(b)] shall promptly acquire such easements as may be necessary to carry out [8 U.S.C. § 1103 note (Section 102(b))] and shall commence construction of fences immediately following such acquisition....

The authority for the acquisition is then set out in 8 U.S.C. § 1103(b)(2)-(3), which provide:

(2) The Attorney General may contract for or buy Any interest land ... as soon as the lawful owner of that interest fixes a price for it and the Attorney General considers that price to be reasonable.

(3) When the Attorney General and the lawful owner of an interest ... are unable to agree upon a reasonable price, the Attorney General may commence condemnation proceedings pursuant to the Act of August 1, 1888 (Chapter 728; 25 Stat. 357).

Dr. Tamez first asserts that by referencing only the Act of August 1, 1888, otherwise known as the General Condemnation Act of 1888 ("GCA") (currently codified at 40 U.S.C. § 3113), IIRIRA requires the United States to bring any condemnation action by the straight-condemnation, procedure and not through the expedited procedure set out in the DTA. In this action, the United States filed both a complaint in condemnation and a declaration of taking and is seeking to proceed pursuant to the procedure of the DTA. (See Docket No. 2). Dr. Tamez, thus, asserts that the United States has exceeded its authority under IIRIRA and that the United States must bring a new action solely under the straight-condemnation procedure.

Second, Dr. Tamez asserts that 8 U.S.C. § 1103(b)(2)-(3), as set out above, mandate negotiations with landowners that: (i) must precede the filing of a condemnation action; and (ii) has not been attempted by the United States. Finally, Dr. Tamez asserts that the United States must strictly comply with a consultation provision enacted by Congress in December of 2007 before bringing any condemnation action, and that the United States has so far failed to do so. This consultation provision requires the Secretary of Homeland Security to consult with "property owners ... to minimize the impact on the environment, culture, commerce, and quality of life for the communities and residents located near the sites at which such fencing is to be constructed." Consolidated Appropriations Act, 2008, Pub.L. No. 110-161, § 564, 121 Stat. 1844, 2090-91 (2007).


The sole defense to a condemnation action is that the United States lacks the authority to take the interest sought in the complaint in condemnation. United States v. 162.20 Acres of Land, More or Less, Situated in Clay County, State of Mississippi, 639 F.2d 299, 303 (5th Cir.1981). Writing for the Fifth Circuit Court of Appeals, Judge Reynaldo Garza stated that judicial review in condemnation actions is limited to "the bare issue of whether the limits of authority were exceeded." Id. A property owner's challenge to a condemnation action is properly defined as an objection to the validity of the taking for "departure from the statutory limits." Id. (citing Catlin v. United States, 324 U.S. 229, 240, 65 S.Ct. 631, 89 L.Ed. 911 (1945)). The Fifth Circuit warned that a court should not "second-guess governmental agencies" on the issues of necessity, expediency, policy and propriety in a condemnation action as "such matters are within the discretion of ... the administrative bodies by delegation." Id.

The Fifth Circuit's decision in United States v. 2,606.84 Acres of Land in Tarrant County, Texas gives an example of what constitutes permissible review:

[W]e think that if Congress had never authorized a dam on the Clear Fork of the Trinity River, then the landowner might here claim under the Catlin rule that his land was being taken for an unauthorized purpose. However, once Congress approved the Benbrook Dam, the taking for any purpose associated with that project was an authorized purpose, and the landowner cannot be heard to complain that the condemnation was not necessary to the dam's construction or operation.

The only exception to this rule would occur if the delegated official so overstepped his authority that no reasonable man could conclude that the land sought to be condemned had some association with the authorized project In such a case alone could the taking be considered arbitrary or capricious as those terms are used in condemnation proceedings. There must be basic to the project pervasive deception, unreasoned decision, or will-of-the-wisp determination before these words of pejoration are brought into play.

432 F.2d 1286, 1290 (5th Cir.1970) (emphasis added).

Section 1103(b) of Title 8, enacted as part of IIRIRA in 1996, gives the Attorney General the authority to bring condemnation actions for land and interests "essential to control and guard the boundaries and borders of the United States...." 8 U.S.C. § 1103(b)(1), (3). Dr. Tamez, while no doubt displeased at the prospect, does not challenge these sections nor the right of the United States to take an interest in her land for the purpose of securing the United States border. Instead, she objects only to the manner in which the United States has chosen to exercise that right.

An objection to the manner of a taking rather than to the purpose of the taking may be properly characterized as a question of the "expediency" of...

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    ...See 2,606.84 Acres , supra 107–108.124 Dkt. No. 22 at 11, ¶ 29.125 Id.126 Id.127 United States v. 1.04 Acres of Land, More or Less, Situate in Cameron Cnty. , 538 F. Supp. 2d 995, 1012 (S.D. Tex. 2008).128 Id. ("The language of the consultation clause, especially in light of the savings pro......
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    ...124. Dkt. No. 22 at 11, ¶ 29. 125. Id. 126. Id. 127. United States v. 1.04 Acres of Land, More or Less, Situate in Cameron Cnty., 538 F. Supp. 2d 995, 1012 (S.D. Tex. 2008). 128. Id. (" The language of the consultation clause, especially in light of the savings provision, does not create an......
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    ...do not serve as stand-alone authority for a taking. See (Dkt. No. 41 at ¶ 24); United States v. 1.04 Acres of Land, More or Less, Situate in Cameron Cty., Tex. , 538 F. Supp. 2d 995, 1007-08 (S.D. Tex. 2008).8 IIRIRA, though, has long granted authority to federal officers to condemn land de......
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