In the wake of President Donald Trump’s declaration of a national emergency on the U.S.-Mexico border, lawyers in South Texas are gearing up to represent landowners who do not want give up their land for a border wall without a fight.
“There is significant work out there,” said Roy Brandys, an Austin lawyer who has done border wall work in South Texas since 2008.
Still, a number of legal questions remain to be answered before that work heats up.
For the most part, it’s too early for lawyers to see a stampede of South Texas landowners knocking on their doors for counsel on eminent domain issues related to Trump’s emergency declaration. But Austin lawyer Luke Ellis said that time may come soon.
On Feb. 21, he said, a representative of the U.S. Army Corps of Engineers called one of Ellis’ clients, who owns land in Hidalgo County, seeking permission to access the property for surveying. The property reaches to the Rio Grande, the border between the U.S. and Mexico.
“That’s the first step,” said Ellis, a partner in Marrs Ellis & Hodge in Austin.
Lawyers such as Ellis who do eminent domain and condemnation work in South Texas said many other South Texas landowners are anticipating contact from the government, and they are already reaching out to lawyers.
“There’s certainly a lot of angst and anticipation related to the border wall project. … Our phone is starting to ring,” Ellis said. “I don’t think the cases are ripe right at this moment, but I do think there will be a lot of litigation over the federal government’s attempt to take this land.”
Brandys, a partner in Barron, Adler, Clough & Oddo in Austin, said landowners need counsel from a lawyer “before they sign anything.”
Trump issued his emergency declaration Feb. 15 in an attempt to secure billions in funding to build a wall without approval from Congress. But a number of things could delay construction—and the condemnation process.
The U.S. House of Representatives on Tuesday approved a resolution to end the national emergency. It will go to the Senate, but Trump has said he will veto it. Separately, a number of landowners, civil rights organizations and environmental organizations have filed federal lawsuits, claiming the president overstepped his powers.
“The litigation over whether the executive declaration of an emergency is proper … will have an impact on the timing,” said Ellis, who is also an adjunct professor at the University of Texas School of Law, teaching eminent domain and property law.
Brandys said he represents a number of clients in eminent domain matters related to ongoing wall construction in South Texas to “fill in the gaps” in the existing border wall built about a decade ago in several Texas counties, including Cameron and Hidalgo. The federal government funded that construction last year, he said.
“They have funds and were actually surveying and appraising properties and about to make offers,” Brandys said.
He said the funding bill, which Congress passed earlier this month and the president signed, provides $1.37 billion through Sept. 30 to be used for fencing along about 55 miles in South Texas. Brandys said it is not clear exactly what kind of barrier it will be, or specifically where it will be located.
Brandys said he doubts construction would occur rapidly because each individual parcel of land is entitled to its own condemnation case, which the landowner would file in federal court if the government’s offer is inadequate.
“Typically the offers are declined,” he said. “Our experience is the offers have not adequately reflected what fair compensation is,” he said, noting that the landowners need to be compensated for the value of the footprint of the wall, and the value of any property that ends up on the Mexico side of the barrier.
But, a few lawyers said, the federal government may use a “quick take” procedure that would allow it to get the land before the landowner agrees on a price or completes litigation.
“They take your property and you sort out the details,” said Soledad Valenciano, a partner at Spivey Valenciano in San Antonio who focuses on eminent domain work for state projects, where procedures are different. She said state eminent domain procedures generally allow the landowner to maintain possession of their property until a fair compromise is reached.
“With the quick take, it’s the opposite,” she said.
Brandys, who represented landowners in 2008 and 2009 during earlier wall construction, said the federal government typically used the quick take at that time.
But it’s an open question whether wall or fence construction under Trump’s emergency declaration would use the quick take, lawyers said.
“None of us really knows,” Ellis said.