United States v. 117.543 Acres of Land

• Decision Date: 02 December 2020
• Docket Number: Civil Action No. 7:19-cv-00339
• Citation: 504 F.Supp.3d 595
• Parties: UNITED STATES of America, Plaintiff, v. 117.543 ACRES OF LAND, MORE OR LESS, IN HIDALGO COUNTY, TEXAS; and Jose Ramirez, Jr., Defendants.
• Court: U.S. District Court — Southern District of Texas

504 F.Supp.3d 595

UNITED STATES of America, Plaintiff,

v.117.543 ACRES OF LAND, MORE OR LESS, IN HIDALGO COUNTY, TEXAS; and Jose Ramirez, Jr., Defendants.

Civil Action No. 7:19-cv-00339

United States District Court, S.D. Texas, McAllen Division.

Signed December 2, 2020

Roland Domingo Ramos, US Attorney's Office, McAllen, TX, for Plaintiff.

Karla Marisol Vargas, Efren Carlos Olivares, Ricardo Amado Garza, Texas Civil Rights Project, Alamo, TX, for Defendants.

OPINION AND ORDER

Micaela Alvarez, United States District Judge

The Court now considers the "United States’ Amended Brief on Just Compensation"¹ and "Defendant Jose Ramirez Jr.’s Supplemental Brief for Just and Adequate Compensation."² Both briefs are filed pursuant to Court order and supersede any earlier briefs.³ After considering the briefs, record, and relevant authorities, the Court holds that $100.00 is just compensation for the taking in this case.

I. BACKGROUND AND PROCEDURAL HISTORY

This is an eminent domain case commenced under the Declaration of Taking Act⁴ concerning Tract RGV-MCS-1311, which is 117.543 acres of land in Hidalgo County, Texas, as more particularly described in the United States’ schedules C and D (the "Subject Property").⁵ Plaintiff United States initiated this case on September 27, 2019, with its complaint, declaration, and notice of condemnation.⁶ The United States represents that Defendant Jose Ramirez, Jr. is the only person "who have or claim an interest in the property condemned."⁷ The United States seeks in this case a:

temporary, assignable easement beginning on the date possession is granted to the United States and ending 12 months later, consisting of the right of the United States, its agents, contractors, and assigns to enter in, on, over and across the land described in Schedule C to survey, make borings, and conduct other investigatory work for the purposes described in Schedule B and to access adjacent lands; including the right to trim or remove any vegetative or structural obstacles that interfere with said work; reserving to the landowners, their successors and assigns all right, title, and privileges as may be used and enjoyed without interfering with or abridging the rights hereby acquired; subject to minerals and rights appurtenant thereto, and to existing easements for public roads and highways, public utilities, railroads and pipelines.⁸

The United States intends to use the easement "to conduct surveying, testing, and other investigatory work needed to plan the proposed construction of roads, fencing, vehicle barriers, security lighting, cameras, sensors, and related structures designed to help secure the United States/Mexico border within the State of Texas."⁹ The United States deposited $100 in estimated just compensation for the taking.¹⁰ The Court held an initial pretrial conference and hearing on the United States’ motion for immediate possession¹¹ on December 17, 2019.¹² At the hearing and in a subsequent order, the Court granted the United States immediate possession of the requested easement over the Subject Property.¹³

At the Court's March 10, 2020 status conference, the parties sought an evidentiary hearing on the issue of just compensation.¹⁴ The Court granted the request and set the hearing in May 2020.¹⁵ After numerous continuances because of the COVID-19 pandemic,¹⁶ the Court instructed the parties to consider alternative means of evidentiary submission.¹⁷ In October 2020, the parties jointly moved for the Court to determine just compensation on the briefs,¹⁸ which the Court granted, holding that the parties shall file briefs by November 20th and the Court "will consider a brief submitted pursuant to [that] order to supersede any earlier brief."¹⁹ Both parties timely submitted briefs,²⁰ so the issue of just compensation is ripe for determination. The Court turns to the analysis.

II. DISCUSSION

a. Legal Standard

Under the Fifth Amendment to the United States Constitution, private property shall not be taken "for public use, without just compensation."²¹ Just compensation is to be just to the landowner and to the public which must pay for the condemnation by eminent domain.²² "Just compensation ... means in most cases the fair market value of the property on the date it is appropriated."²³ "[T]he underlying principle is that the dispossessed owner ‘is entitled to be put in as good a position pecuniarily as if his property had not been taken. He must be made whole but is not entitled to more.’ "²⁴ "Under this standard [of fair market value], the owner is entitled to receive what a willing buyer would pay in cash to a willing seller at the time of the taking."²⁵ "[I]n general, comparable sales constitute the best evidence of market value ... the more comparable a sale is, the more probative it will be of the fair market value of the condemned property."²⁶ A comparable sale is defined as a sale "from a willing seller to a willing buyer of similar property in the vicinity of the taking at or about the same time as the taking."²⁷ Evidence of fair market value can come from evidence of comparable sales and from expert testimony as to the value of the subject property.²⁸

"In determining the market value, this Court must look not only at the present use of the property, but also at the highest and best use for which the property is adaptable and needed."²⁹ "Ordinarily, the highest and best use for property sought to be condemned is the use to which it is subjected at the time of the taking. This is true because economic demands normally result in an owner's putting his land to the most advantageous use."³⁰ When a condemnee³¹ attempts to claim that the highest and best use for the property taken is something other than what the property is currently used for, the Fifth Circuit has held that the burden is on the condemnee to produce credible evidence that, at the time of taking, the use claimed was "practicable" and that "there was a reasonable likelihood that [the property] would be so used in the reasonably near future."³² Evidence of highest and best use that is not credible, for example an assertion that residential development is the highest and best use when the property in question is next to an airfield and has poor access and stagnant population growth, should be rejected.³³

When the taking is temporary, "the Just Compensation Clause of the Fifth Amendment requires that the government pay the landowner for the value of the use of the land during this period,"³⁴ or in other words "determine the figure which would compensate [the condemnee] for the loss it suffered by being deprived of this property for this period of time."³⁵ Market rental value is generally the appropriate measure of compensation for a temporary taking.³⁶ However, even if a taking is temporary, it may effect a complete deprivation of profitable use of property.³⁷

"Considerations that may not reasonably be held to affect market value are excluded."³⁸ "In making [a just compensation] estimate there should be taken into account all considerations that fairly might be brought forward and reasonably be given substantial weight in such bargaining," but ostensible events affecting value that are speculative or not shown to be reasonably probable are excluded from the ascertainment of value.³⁹ The considerations that are excluded from just compensation include special or sentimental value to the condemnee, the change in value of separate tracts that are affected by the taking,⁴⁰ appraisal and attorneys’ fees, loss of profits, damage to goodwill, and the expense of relocation or other consequential losses.⁴¹ However, "the opinion testimony of a landowner as to the value of his land is admissible without further qualification. Such testimony is admitted because of the presumption of special knowledge that arises out of ownership of the land."⁴² Although the Court will not accept speculative "value to me" testimony from a landowner, so long as the landowner's opinion has a rational foundation and is not contradicted by the landowner's testimony, it is probative of the market value of the land.⁴³ The rule is that if "a proffered potential use is not reasonably practicable or probable, so that no reasonably minded trier of fact faithfully applying the law could find that it represents an element of fair market value," the evidence will not be considered.⁴⁴ "The burden of establishing the value of the land sought to be condemned [rests] with the landowner."⁴⁵ If the landowner fails to establish that just compensation is higher than the United States’ estimate, the Court may rely exclusively on the United States’ evidence.⁴⁶

b. Analysis

1. Evidence Submitted by Defendant Landowner

Defendant landowner Jose Ramirez Jr. argues that "[j]ust and adequate compensation for the instant easement is no less than $7,500 because this is the minimum fair market value of the easement."⁴⁷ Defendant points chiefly to two pieces of evidence: the declarations of Defendant and his son.⁴⁸ Defendant explains in a declaration pursuant to 28 U.S.C. § 1746 that he entered a still-active oil and gas lease in 1976 permitting underground pipes, a pump jack, and other machinery for $1,000 per year, but that he would not enter such a lease now for less than $5,000 per year.⁴⁹ Because Defendant must adjust his "cattle operation" and his existing obligations to the oil and gas lease when the United States’ representatives enter the property, he is "asking the government to compensate [him] $7,500 for the one-year easement they have on [his] land."⁵⁰ Defendant's son Jose Ramirez, III submits a similar declaration, explaining that "we have had to be ready to make accommodations for the government at a moment's notice."⁵¹ The Court pauses here to remind Plaintiff United States of its obligations pursuant to Court order to "provide Defendant 72-hour notice before entering Tract RGV-MCS-1311."⁵² Jose Ramirez, III continues, "we must put [protections] in place to ensure our...