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Land Resources / News / Landowners say government never negotiated access for fence
Landowners say government never negotiated access for fence (complete article from source)
Source: Chron.com, by CHRISTOPHER SHERMAN
March 18, 2008

McALLEN, Texas — Several South Texas property owners testified in federal court Monday that government officials seeking access to land to survey for the border fence did not try to negotiate before suing.

Offers of $100 compensation for the temporary access to their land along the Rio Grande only came after government lawyers started the condemnation process, property owners in Hidalgo and Starr counties said Monday.

U.S. District Judge Andrew Hanen, who has held several hearings on cases in Cameron County, said he would rule as soon as possible on more than a dozen government lawsuits that are the first in Hidalgo and Starr counties.

But the three-hour hearing Monday, where witnesses were called to recount their conversations with government officials and lawyers parsed the definition of "negotiate," was exactly the sort of legal wrangling the government hoped to avoid.

By the end of the year, Congress has demanded that there be 670 miles of fencing along the border with Mexico to slow illegal immigration. Dozens of South Texas landowners have provided a bump in that road by refusing to grant access to their property for fence surveys. The government sued them and now finds itself on defense, filing affidavits and arguing that it tried to negotiate with landowners before suing them.

The Justice Department has sued more than 50 property owners in Texas this year — a total of 75 along the whole U.S.-Mexico border.

A recent ruling from Hanen ordered the government to first try to negotiate access with landowners.

On Monday, Hanen indicated the bar was fairly low for what could constitute negotiation and allow the eminent domain cases to proceed.

"If I offer you $100 and you say 'No way,' then at least there's been negotiation the court can move on," Hanen said.

Hanen does not have jurisdiction to consider the amount of compensation. He is looking for evidence of an attempt at back-and-forth between the government and property owners.

Hanen also said that asking a property owner to sign a waiver under threat of condemnation "doesn't sound like negotiation to me."

Thelma Ramey, chief financial officer for the Rio Grande City Consolidated Independent School District, said she was unaware of any compensation offer from government officials who had appeared at a school board meeting and followed up with phone calls and a letter.

"The word 'negotiation' has never been communicated to us," Ramey said. "I was not aware we could negotiate."

The government wants to survey the school district's 132-acre campus that extends to the Rio Grande in Starr County.

District Superintendent Roel Gonzalez said the school board refused to vote on granting access because they wanted more details on what access would mean. The district's administrative offices share the campus with elementary and middle schools and more than 1,000 students. A wildlife refuge on part of the property near the river is used as a living classroom.

"When it comes to the children, I have to worry beforehand," Gonzalez said.

Justice Department lawyers seemed to have already adopted the lessons from Hanen's ruling in the case of Eloisa Tamez, a Cameron County landowner. After a month of deliberation, Hanen sided with the government on virtually every point in that case, but gave them two weeks to either present evidence of bona fide attempts at negotiation with Tamez or begin those negotiations.

In the case against the school district government lawyers were prepared avoid similar delays by offering evidence of their attempts to negotiate access.

They filed an affidavit from a real estate official with the U.S. Army Corps of Engineers attesting to multiple attempts made to discuss the issue with the school district.

Celestino Gallegos, an attorney with Texas RioGrande Legal Aid representing two landowners Monday, argued that bona fide negotiations had to involve some discussion of compensation. He said since the government did not enter negotiations with his clients before suing, the cases should be dismissed so negotiations can properly begin.

The Department of Homeland Security has won access in 35 of the 75 cases filed along the border, according to U.S. Customs and Border Protection. Most of the nearly 500 property owners in the fence's path gave voluntary access to their land and as of Feb. 21, 303 miles of fencing had been built.

Hanen will hear two more cases in Brownsville Wednesday, including one against the University of Texas at Brownsville and Texas Southmost College.



Click here for complete article from Chron.com
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