United States v. 6.584 Acres of Land

Decision Date12 April 2021
Docket NumberCIVIL ACTION NO. 7:20-cv-00244
PartiesUNITED STATES OF AMERICA, Plaintiff, v. 6.584 ACRES OF LAND, more or less, HIDALGO COUNTY, TEXAS; ELOISA ROSA CAVAZOS; et al., Defendants.
CourtU.S. District Court — Southern District of Texas

ELOISA ROSA CAVAZOS; et al., Defendants.

CIVIL ACTION NO. 7:20-cv-00244


ENTERED: April 13, 2021
April 12, 2021


The Court now considers Defendant-Intervenor Jose Alfredo ("Fred") Cavazos's "Motion to Intervene as Defendant"1 and the answers and defenses filed by Defendant-Intervenor Jose Alfredo ("Fred") Cavazos and Defendant Eloisa Cavazos,2 the United States' response and motion to strike,3 and Defendants' reply.4 The Court also considers the United States' motion for leave to file a proposed order.5 The Court further considers the United States' motion for immediate possession6 and Defendants' response.7

As a preliminary matter, the Court first turns to the United's motion for leave.8 Therein, the United States provides that it inadvertently filed its response9 without a proposed order.10 In

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order to comply with Local Rule 7.4, the United States seeks leave to file the proposed order.11 . "The court should freely give leave [to amend] when justified."12 In light of this and the requirements of Local Rule 7.4, the Court GRANTS the United States' motion for leave to file its proposed order,13 which has already been filed with the Court under Docket Number 38-1.


This is a land condemnation case commenced by the United States under the Declaration of Taking Act14 on August 27, 2020.15 On that date, the United States filed a complaint16 and Declaration of Taking17 seeking the "taking of property under the power of eminent domain" of Tract RGV-MCS-2119, 6.584 acres of land located along the United States-Mexico border, more specifically described in Schedule C.18 The United States further lists as authority for the taking: 40 U.S.C. §§ 3113 and 3114, as well as, "the Act of Congress approved September 30, 1996, as Public Law 104-208, Division C, Section 102, 110 Stat. 3008-546, 3009-554-55, as amended and codified at 8 U.S.C. § 1103(b) & note;" and "the Act of Congress approved March 23, 2018, as Public Law 115-141, div. F, tit. II, Section 230."19 The United States further describes the public purpose for which said property is taken is "to construct, install, operate, and maintain roads, fencing, vehicle barriers, security lighting, cameras, sensors, and related structures designed to help secure the Unite States/Mexico border within the State of Texas."20 The United States seeks to take the land in fee simple absolute subject to certain exceptions.21 On September 4, 2020, the

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United States deposited $347,887.00, estimated just compensation for the taking, in the Court's Registry.22

On September 21, 2020, Defendant Eloisa Cavazos appeared via counsel and filed her answer and the instant motion to dismiss.23 Also on that date, Defendant-Intervenor Jose Alfredo ("Fred") Cavazos, via counsel, filed his motion to intervene, answer, and motion to dismiss.24 The United States did not respond to Defendant-Intervenors motion to intervene, but timely25 filed its response to Defendant and Defendant-Intervenor's motions to dismiss.26 Defendant and Defendant-Intervenor subsequently file their joint reply.27 The Court turns to its analysis.


This Court has jurisdiction under 28 U.S.C. § 1331.


The Court first turns to Defendant-Intervenor Jose Alfredo ("Fred") Cavazos's motion to intervene and brief in support.28 The United States has not filed a response and the time for doing so has passed, rendering Defendant-Intervenor's motion unopposed by operation of this Court's Local Rule.29

a. Legal Standard

Federal Rule of Civil Procedure (Rule) 71.1 outlines the specific procedures for condemnation actions.30 Where the rule is silent, the other rules of Civil Procedure apply.31 As Rule 71.1 is silent as to interventions, the traditional intervention standard, Federal Rule of Civil

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Procedure 24, applies.32 Rule 24 provides two pathways for intervention: intervention of right under 24(a) and permissive intervention under 24(b). To intervene as of right, the proponent must satisfy a four-prong test:

(1) the application must be timely; (2) the applicant must have an interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may, as a practical matter, impair or impede his ability to protect that interest; (4) the applicant's interest must be inadequately represented by the existing parties to the suit.33

In assessing timeliness, the Court looks to: (1) the amount of time between the intervenor's discovery of the action and when he moved to intervene, (2) prejudice to existing parties if the motion is granted, (3) prejudice to the intervenor if the motion is denied, and (4) the existence of unusual circumstances.34

In evaluating an intervenor's interest, "the Fifth Circuit has warned against defining 'property or transaction' too narrowly."35 "There is not any clear definition of the nature of the 'interest ...' that is required for intervention of right."36 A key inquiry is whether the interest is "legally protectable."37 "[A]n interest is sufficient if it is of the type that the law deems worthy of protection, even if the intervenor does not have an enforceable legal entitlement or would not have standing to pursue her own claim."38

Intervention of right also requires that the intervenor be so situated that the disposition of the action without his inclusion would practically impair or impede his ability to protect this

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interest and that, without intervention, representation of that interest would be inadequate.39 This burden is minimal—the intervenor need only show that representation of his interests without intervention "may be inadequate."40 Fifth Circuit jurisprudence "imposes two presumptions of adequate representation, when the would-be intervenor has the same ultimate objective as a party to the lawsuit and when the putative representative is a governmental body or officer charged by law with representing the interests of the intervenor."41

If a proponent does not qualify to intervene as of right, he may still intervene with permission of the Court under Rule 24(b), which allows the Court to permit intervention by anyone who has "a claim or defense that shares with the main action a common question of law or fact."42 "Although the movant bears the burden of establishing its right to intervene, Rule 24 is to be liberally construed."43 "Federal courts should allow intervention when no one would be hurt and the greater justice could be attained."

The Court now turns to its analysis of Defendant-Intervenor Jose Alfredo Cavazos's motion to intervene.44

b. Analysis

In Defendant-Intervenor's motion to intervene, he argues that he is entitled to intervene as a matter of right under Rule 24(a)(2) and, alternatively, that he should be permitted to intervene under Rule 24(b)(1)(B).45 The Court analyzes each basis for intervention.

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To intervene as of right, Defendant-Intervenor must demonstrate that: (1) his application is timely; (2) he has have an interest relating to the property or transaction which is the subject of the action; (3) he is so situated that the disposition of the action may, as a practical matter, impair or impede his ability to protect that interest; (4) his interest is inadequately represented by the existing parties to the suit.46

Defendant-Intervenor asserts that "[a]s a habitual user of his family's land, [he] has an important interest relating to the property that is the subject of the condemnation."47 He further argues that he has a "'direct, substantial, legally protectable interest' in not being 'excluded from the participation in, be[ing] denied the benefits of, or be[ing] subjected to discrimination under any program or activity . . . conducted by any Executive agency."48 In reviewing Defendant-Intervenor's motion, the Court notes that he does not assert that he had legal title to his family's riverside property or the Subject Property at the time of the taking. Rather, Defendant-Intervenor alleges that the United States plan for the development of the Subject Property will impede his ability to access his family's land between the Subject Property and the Rio Grande River49 ("riverside property").50 In support of this argument, he provides that the Subject Property contains the "sole accessible route" to his family's riverside property to which he requires regular access to "tend cattle and goats, manage tenant properties, and participate in the family's livelihood."51 He also argues that "[a]ll Executive agencies, including DHS, are prohibited from discriminating against persons with disabilities,"52 and that federal regulations require that "[t]he planned border wall program structures 'shall be designed, constructed, or altered so as to be

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readily accessible to and usable by individuals with a disability.'53 Based on Defendant-Intervenor's characterization of his interest in this case, it appears to the Court that Defendant-Intervenor is attempting to intervene on the basis of a counterclaim against the United States for an alleged violation of the Rehabilitation Act.

Land condemnation actions under the Declaration of Taking Act (DOTA) are unique and there are strict limits on the interests that may be protected in such actions. For example, district courts lack jurisdiction to hear counterclaims against the United States in condemnation cases.54 Furthermore, outside of the determination of title and just compensation, "[i]t has been long established that the role of the district court in DOTA condemnations is limited to a bare consideration of the legal authority to take, and . . .courts have been careful to refrain from considering matters of propriety, expediency and policy with regard to the use of the property...

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