Why private property owners may be the biggest obstacle to Trump’s wall


Maverick County offers a case study in why eminent domain proceedings won’t be easy.

Texas Republicans warn the Trump administration: private property rights paramount in Texas.

On a cliff overlooking the Rio Grande, Dob Cunningham got out of his four-wheeler, walked across a patch of wildflowers poking out from the rocks and stopped at a small, rough concrete block adorned with horseshoes, spurs and a Masonic emblem. Under raised letters reading “DOB,” the year 1934 was carved into the concrete, with a blank space to the right.

It was Cunningham’s headstone.

“That way it’s done,” he said. “I didn’t want anyone to go and spend a bunch of money on it.”

Working as a farm hand in his youth, serving 30 years in the Border Patrol in his prime and tending to an 800-acre ranch with his wife, Kay, in his golden years, Cunningham has spent his whole life on the border, and he’s seen it change. Growing up, he would wade across the river to play baseball with kids in Mexico, and those who came north were polite. In recent years, he said, migrants have broken into his house, and drug smugglers traverse his property regularly.

Cunningham voted for Donald Trump — more importantly, he said, he voted “against Hillary” because he and Kay “didn’t want to see the country go socialism” — and agrees with the president’s desire to secure the border. But he opposes Trump’s plan to build a border wall from the Pacific Ocean to the Gulf of Mexico, saying it won’t work along the Rio Grande because of flooding. If the federal government tries to condemn part of his property to build the wall, Cunningham plans to fight as long as he can afford to.

“The government or the illegals won’t run me off,” he said. “We’ve lived here and we’ve raised a daughter here, and I’ve put a lot of sweat and blood in this place. We don’t want to just give it away.”

If it is built, Trump’s wall will have to cross miles of roadless mountains, traverse expansive deserts and parallel a serpentine river. But the biggest hurdle to building a coast-to-coast border barrier may not be the terrain but its inhabitants, especially those in Texas, where property rights are second to none.

There is little question the federal government has the legal justification to use its eminent domain power to build a wall. Condemnation proceedings, however, could nonetheless present a major obstacle because they can drag on for years, drive up the project’s price tag and create sympathetic victims.

“It could potentially be the nail in the coffin because the problem that the Trump administration is going to come across is the potential for public opinion backlash,” said Gerald Dickinson, a University of Pittsburgh law professor who studies federal eminent domain law.

During George W. Bush’s administration, the federal government built nearly 700 miles of fence along the 2,000-mile U.S.-Mexico border, but almost all of it was in the other three border states: California, Arizona and New Mexico. Except for small segments in some urban areas, including Eagle Pass, only about 10 percent of Texas’ 1,200 miles of border is fortified.

One reason so little was built is the relative lack of federal land along the border in Texas. Much of the barrier built in the other states was on land already owned by Washington, avoiding the need for the government to use its eminent domain authority.

Thanks to Texas’ unique history as an independent nation, a vast majority of land in Texas is privately held. In other western states, all unclaimed land was turned over to the federal government when the states joined the union. Under the terms of Texas’ admittance, the state retained the land and, over time, doled it out to private owners.

PHOTOS: Private property a barrier to border wall in Texas

There are thousands of parcels of Texas land that touch the Rio Grande, county appraisal district data show. In Cunningham’s sparsely populated Maverick County alone, there are 209 parcels on the river, including land owned by a Native American reservation, a church, prominent Texas families such as the Basses and the Briscoes, and by a deep-pocketed Democratic state representative who would relish a showdown with the Trump administration.

“I’m somebody who can muster a lot of resources to try to make sure that that doesn’t happen,” state Rep. Poncho Nevárez, D-Eagle Pass, said while sitting in his living room, about 200 yards from the river. “I’m not going to go quietly into that good night.”

Other land owners in the area are wealthier and more influential than him, he said. “I’d be very surprised if part of that wall was ever built through that property,” he said of the Indio Faith Ranch owned by the Fort Worth-based Bass family. Lee Bass did not respond to a request for comment.

The Trump administration is readying for the fight. The president’s budget blueprint requested funding for 20 new Department of Justice lawyers “to pursue federal efforts to obtain the land and holdings necessary to secure the Southwest border.”

U.S. Rep. John Carter, R-Round Rock, said last week that he has counseled White House officials about the challenges they face in building the wall, which he supports “where barriers will work.”

“I’ve been trying to preach — and I’ve kind of got the White House and the Justice Department and other people to realize — that Texas is a very peculiar state, a very blessed state. … All that land along the river, along the border down there are owned by people and corporations. It’s private property,” said Carter, who chairs a budget-writing subcommittee that oversees the Department of Homeland Security and will play a key role in determining congressional support for the wall. “If they’re building a wall in Texas, it means they are building on private land, which means it’s harder, a lot harder.”

‘Just compensation’

The power of eminent domain is established in the Fifth Amendment to the U.S. Constitution, which provides that citizens cannot “be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Through the 2006 Secure Fences Act, Congress identified a border barrier as a public use, likely putting the administration on solid footing to survive a lawsuit challenging the entire project. The difficult part will be determining “just compensation” for each of the hundreds of property owners along the border.

When taking private property for a public use, either by acquiring title to the land or securing an easement to use part of it, the government first makes an offer to the owner. If the owner of a border parcel does not accept an offer, Department of Homeland Security officials must go through a lengthy process, outlined by Congress in laws on eminent domain and on the wall, before they can file a declaration of taking in federal court.

“It requires the DHS to follow a very detailed negotiation process in terms of notifying Native American tribes, property owners, state and local governments,” Dickinson said. “They have to reach out to a lot of the different stakeholders, hold meetings, provide detailed plans of what they expect or plan to do on the land, whether they are only going to need an easement or whether they are going to have to take title.”

Once the declaration is filed, the government and property owners each present evidence to a judge or jury, depending on the case, to support their arguments about the land’s value.

A key sticking point in litigation over the Bush administration’s border fence was the so-called no man’s land between the wall and the border. The barrier was built at varying distances from the river in part because of flooding concerns.

The federal government wanted to pay only for the slice of the property where the wall was to be built. Owners, however, fought to be compensated for the decrease in the value of their property that was put behind the wall, and they often won.

‘Low-hanging fruit’

During the Bush years, the Department of Homeland Security focused on what Nevárez called “low-hanging fruit” to build the fence: land already in federal hands or smaller parcels owned by people who could not afford to wage a yearslong court battle.

“If you look at the path of the wall, it very often went through lower-income communities and then stopped cold when it hit the property line of, say, the Hunt family, who owned an industrial park and donated to build the Bush library at SMU,” said Scott Nicol, co-chairman of the Sierra Club Borderlands Campaign.

Department of Homeland Security officials often struggled with balancing politically driven mileage goals for the barrier with their desire to build fencing that was strategically valuable for stopping illegal immigration, according to internal emails obtained by Denise Gilman, who leads the University of Texas Law School’s Immigration Clinic, through a Freedom of Information Act lawsuit.

The Border Patrol “has already expressed concerns over losing the high priority projects on the list in order to build operationally irrelevant segments in order to meet their mileage objective,” an assistant Border Patrol chief in Washington whose name was redacted wrote in a 2007 exchange.

In another exchange, officials fretted over whether a National Geographic article about the fence would cause alarm among residents in the area between Eagle Pass and Del Rio. They singled out one owner, who they said was a friend of George W. Bush.

“35+ miles of that area belong to one owner-(name redacted) who is a friend of the president and a staunch supporter of the Border Patrol. However, he is adamantly opposed to the fence concept in this (area). For sure, the map will have the mayors in Del Rio & Eagle Pass against us-along the respective city councils,” an official wrote.

That property appears to be a ranch that was owned by the Galveston-based Moody family, which became wealthy through their eponymous bank and insurance company, Gilman said, and county property records appear to confirm that.

William Moody IV ran the ranch, which is where the “Lonesome Dove” mini-series was filmed, until he died in 2014, and the property was sold to an investor who subdivides ranches, said Robert Moody Jr., William’s nephew and the president of Moody Insurance Group.

‘Being caged in’

Years before Trump burst onto the political scene, the elders of the Kickapoo Traditional Tribe of Texas have been predicting that they may one day become walled in, said Armando Hernandez, 28, a Kickapoo who lives on land owned by the tribe adjacent to its 123-acre reservation along the Rio Grande south of Eagle Pass.

Originally from the Great Lakes region, the Kickapoo have reservations in Kansas, Oklahoma, Texas and northern Mexico. The Mexican land, outside Múzquiz, Coahuila, is where the tribe has made the greatest effort to preserve their way of life, building traditional Kickapoo homes and holding important ceremonies. The Texas Kickapoo travel there frequently, and some call it “home.”

Hernandez, who works in construction on the Texas reservation, and his wife, Kelly, a Head Start teacher, worry that Trump will limit their ability to go to Mexico. They see the wall as a threat.

“Our elders tell stories about not being able to leave, about being caged in,” Armando Hernandez said in his home, a long white trailer in a row of identical trailers housing Kickapoo families.

“They just said one day we won’t be able to go home,” Kelly Hernandez, 25, added, as their 9-month-old son Liam bounced on her lap. “We think about it all the time.”

It would be an existential threat for the Kickapoo, whose name comes from the Algonquian word “Kiwigapawa,” meaning, “He moves from here to there.”

Taking land in Native American reservations presents unique challenges. While reservations are already owned by the federal government in a trust for the tribes, condemning part of the land for non-tribal purposes generally requires an act of Congress, Dickinson said. A court case involving another cross-border Native American group, the Tohono O’odham, stopped the Bush administration from building part of its border fence in Arizona.

The Texas Kickapoo council said in a statement that it opposes the construction of a wall as proposed by Trump.

“As a community with ties on both sides of the border, the tribe believes that a wall would be an eyesore and counterproductive to the relationship between the United States and Mexico,” said the statement, which noted that the U.S. Border Patrol and Texas Department of Public Safety already provide border security. “Continuing to allow these entities to do their jobs is much preferable to a wall that divides communities, harms wildlife and disrespects the long ties between the people of the United States and Mexico.”

‘Frontier people’

Carrying a rifle in case he stumbled upon feral hogs, Nevárez, the state legislator, walked down a rocky, dusty road on his 500-acre ranch a day after returning home from Austin for the weekend. The Rio Grande was only a few yards away, but thick carrizo cane obscured it from view.

He stopped at a pile of dirty clothes on the side of the road, most of them for children, and pointed to a narrow path cut through the cane.

“I brought my staff here and I wanted them to see this because I wanted them to see themselves as these folks and that’s what we forget,” Nevárez said. “The inability of us to be able to see ourselves like these folks is why we do the stupid things we do.”

Hours later, Nevárez joined officials from Maverick County and Coahuila on the international bridge in Eagle Pass for the 55th annual “abrazo,” or hug. Led by military bands and joined by local notables and school-age beauty pageant winners, American and Mexican politicians marched from their respective sides of the bridge and embraced each other at the international boundary in the middle.

The celebration of cross-border culture took on new meaning during the Trump presidency, and the American speakers, all Democrats, stressed that the bonds they shared with their southern neighbors could not be broken by anyone in Washington.

“In a thousand years it probably won’t be Americans or Mexicans, it won’t be Texans or Coahuilans, but there will be people who live on this river who will be frontier people,” Nevárez said before the event. “This river will still be here.”

In Eagle Pass, cross-border relationships are a fact of life, even for those who hold opposite political views from Nevárez. Also on the bridge that evening was Rodney Williams, a Border Patrol employee and Trump voter whose young daughter was one of the beauty queens, “Miss Teen International Friendship,” and whose wife, Margarita Rodriguez-Williams, is from Mexico.

When it comes to Trump’s goals of “building up our military, building up our Border Patrol, the security aspect of it and tax reform and entitlements reform,” Williams said he is on board.

But there’s one issue where he diverges from the president: “I support Trump in most of his policies — except for eminent domain,” Williams said without being asked about land issues.

Williams’ Eagle Pass-area home is likely too far from the Rio Grande to be condemned for the wall, but he nonetheless objects to it being constructed on private property.

“The wall here in Texas, it’s not going to happen because of private lands,” he said. “When it affects private landowners, then I’m against it because I’m a private landowner and I don’t want the government taking my land away.”

Additional material from data editor Christian McDonald and staff writers Jeremy Schwartz and Jonathan Tilove.

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