Feature

The US–Mexico Border Wall : A Unique Project with Unique Real Estate Issues

By Roy R. Brandys, Nicholas P. Laurent, and Blaire A. Knox

Since Donald Trump began his presidential candidacy in 2015, the idea of a border wall between the United States and Mexico has captured the attention, fascination, and frequently the ire of the American public. What many may not realize is that the United States has been erecting fencing and other physical barriers on the border with Mexico since the mid-1990s. See Borders: The Fence, Georgetown Univ., https://apps.cndls.georgetown.edu/projects/borders/exhibits/show/the-fence/overview. Today, more than one-fourth of the border already contains some sort of barrier structure. See Julia Jacobo and Serena Marshall, Nearly 700 Miles of Fencing at the US-Mexico Border Already Exist, ABC News (Jan. 26, 2017), abcnews.go.com/US/700-fencing-us-mexico-border exist/story?id=45045054.

One issue commonly glossed over in the national conversation is the need to acquire private property for the border wall and the effect of this acquisition and related infrastructure on the value and utility of the landowner’s remaining land. The Fifth Amendment provides a constitutional mandate requiring the government to pay “just compensation” if private property is taken for public use. U.S. Const. amend. V (“nor shall private property be taken for public use, without just compensation”). But, for a variety of reasons, including the purported justification of national security, the lack of understanding of the physical characteristics of the border between the United States and Mexico, and a dismissive attitude toward border area landowners, this constitutional obligation frequently has been overlooked.

For a more extensive treatment of this topic, including a discussion of the legal procedure accompanying border wall takings and issues affecting compensation, see the authors’ recent article in the Real Property, Trust & Estate Law Journal. Roy R. Brandys, Nicholas P. Laurent, and Blaire A. Knox, United States–Mexico Border Wall: The Past, the Present and What May Come, 53 Real Prop., Tr. & Est. L.J. 131 (2018).

Background on Physical Barriers at the US–Mexico Border

The boundary between the United States and Mexico was finalized with the 1848 Treaty of Guadalupe Hidalgo, which ended the Mexican-American War and generally set the border at the Rio Grande River in Texas, along with the 1854 Gadsden Purchase, which formalized the last segment of the current border in Arizona and New Mexico. See Treaty of Peace, Friendship, Limits, and Settlement with the Republic of Mexico, Mex.-U.S. Feb. 2, 1848, 9 Stat. 922 (entered into force July 4, 1848); Gadsden Purchase Treaty, Mex.-U.S. Dec. 30, 1853, 10 Stat. 1031. Today, the United States–Mexico border stretches 1,954 miles. See Treaty to Resolve Pending Boundary Differences and Maintain the Rio Grande and Colorado River as the International Boundary, Mex.-U.S. Nov. 23, 1970–Apr. 18, 1972, 23 U.S.T. 371 (entered into force Apr. 18, 1972).

Every year more than 350 million people cross the border, making it one of the most frequently crossed international borders in the world. See generally Annual Border Crossing/Entry Data, Bureau of Transp. Stat., https://www.bts.gov/content/border-crossingentry-data. Approximately $229 billion in goods and merchandise also cross the United States–Mexico border annually. See Trade in Goods with Mexico, U.S. Census Bureau, https://www.census.gov/foreign-trade/balance/c2010.html (last visited Apr. 25, 2017); see also Christopher Wilson & Duncan Wood, Understanding U.S.-Mexico Economic Ties, Forbes (Sept. 26, 2016), https://tinyurl.com/y822grfl (“[o]ur study concludes that the economic relationship with Mexico, though not without its challenges, provides concrete benefits, strengthening the competitiveness of American firms, creating jobs in the United States, and generating savings for the average American family”).

Although a significant volume of goods and merchandise legally crosses the border each day, large quantities are also transported across the border illegally. See generally Office of Nat’l Drug & Policy Control, National Southwest Border Counternarcotics Strategy (2011), (outlining a number of problems associated with illegal drugs). Additionally, some government reports indicate that more than 200,000 people cross the border every year without obtaining legal authority to do so. See David Ingold, Chloe Whiteaker, Mira Rojanasakul, Hannah Recht & Dean Halford, Here’s What We Know about Trump’s Border Wall, Bloomberg Pol. (Feb. 13, 2017), https://tinyurl.com/yafs5wxt. Most illegal border crossings take place at the United States–Mexico border, with approximately 96.6 percent of apprehensions by the US Border Patrol in 2010 occurring on the southern border. See Lesley Sapp, Office of Immigration Statistics, Homeland Sec., Apprehensions by the U.S. Border Patrol: 2005–2010, at 2 (2011), https://tinyurl.com/ybyhmam8. A significant portion of those apprehensions occurred near the southern tip of Texas. See U.S. Customs and Border Patrol, U.S. Border Patrol Fiscal Year Southwest Border Sector Apprehensions (1960–2017), https://www.cbp.gov/newsroom/media-resources/stats.

Original Border Barriers and the Illegal Immigration Reform and Immigrant Responsibility Act

To curb unauthorized border crossings, in 1990 the federal government erected the first formal physical barrier along the United States–Mexico border through the United States Border Patrol.

[The fence’s purpose was] to deter illegal entries and drug smuggling in [the Border Patrol’s] San Diego sector. The ensuing 14-mile-long San Diego “primary fence” formed part of the USBP’s “Prevention Through Deterrence” strategy, which called for reducing unauthorized migration by placing agents and resources directly on the border along population centers in order to deter would-be migrants from entering the country.

Chad C. Haddal, Yule Kim, and Michael John Garcia, Cong. Research Serv., RL33659, Border Security: Barriers along the U.S. International Border (2009), https://fas.org/sgp/crs/homesec/RL33659.pdf. Before this time, the only real physical barriers amounted to fencing that was typically put up by private landowners to corral cattle.

In 1994, in an attempt to further stem the flow of illegal goods and persons across the southern border, the Immigration and Naturalization Service (INS) approved a national strategy to prevent illegal entry along the United States’ southern border that would build on the agency’s success in San Diego and El Paso. See U.S. Gen. Accounting Office, GAO/GGD-95-30, Border Control: Revised Strategy Is Showing Some Positive Results 1–2 (1994), https://www.gao.gov/assets/230/220852.pdf. The strategy followed a study prepared by the Office of National Drug Control Policy that recommended “using (1) multiple physical barriers in certain areas to prevent entry and (2) additional highway checkpoints and other measures to prevent drugs and illegal aliens that succeeded in entering the United States from leaving border areas.” Id. at 1.

In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), a law mandating the construction of border fencing and authorizing an environmental waiver to allow expedited construction. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009, 3009-546 (1996). Included in the appropriation bill for fiscal year 1997, the IIRIRA directed the Attorney General to “take such actions as may be necessary to install additional physical barriers and roads (including the removal of obstacles to detection of illegal entrants) in the vicinity of the United States border to deter illegal crossing in areas of high illegal entry into the United States.” Id. § 102(a). It also provided: “The provisions of the Endangered Species Act of 1973 and the National Environmental Policy Act of 1969 are waived to the extent the Attorney General determines necessary to ensure expeditious construction of the barriers and roads under this section.” Id. § 102(c). At the time the bill was signed into law, President Bill Clinton indicated his opposition to the waiver provisions, and the INS and Attorney General vowed not to use them. See Statement on Signing the Omnibus Consolidated Appropriations Act, 1997, 32 Weekly Comp. Pres. Doc. 1935, 1935–38 (Sept. 30, 1996); Memorandum from David A. Yentzer, Assistant INS Comm’r (Feb. 24, 1997).

The Secure Fence Act of 2006

Despite the IIRIRA, by 2004, only nine miles of border fencing were complete. See Blas Nunez-Neto and Michael John Garcia, Cong. Research Serv., RS22026, Border Security: The San Diego Fence 1 (2007), https://fas.org/sgp/crs/homesec/RS22026.pdf. In 2005, a plan was proposed in the House of Representatives calling for the construction of a reinforced fence along the entire United States–Mexico border, which would also include a 100-yard border zone on the United States’ side of the border. The progeny of that plan, the Secure Fence Act of 2006 (SFA), was passed by Congress and signed into law by President Bush in October of 2006. See H.R. 6061 (codified as amended at 8 U.S.C. §1103 (2012)). At the time the SFA was signed, President Bush stated, “This bill will help protect the American people. This bill will make our borders more secure. It is an important step toward immigration reform.” Press Release, The White House, Fact Sheet: The Secure Fence Act of 2006 (Oct. 26, 2006), https://tinyurl.com/ycjfa7az.

The SFA authorized the construction of hundreds of miles of additional fencing along the southern border, approved additional vehicle barriers and checkpoints, authorized advanced technology like cameras, satellites, and drones, and doubled funding for border security. See Secure Fence Act of 2006, 120 Stat. 2638. The SFA originally called for at least two layers of reinforced fencing to be built, but this layered approach was abandoned following amendments to the original Act. See H.R. 6061, 109th Cong. § 3 (2d Sess. 2006). Specific to Texas, the SFA called for the building of fencing of 176 miles from Laredo to Brownsville, Texas, 51 miles from Del Rio to Eagle Pass, Texas, and 88 miles from El Paso, Texas, to Columbus, New Mexico. See § 3, 120 Stat. at 2639; see also Al Tompkins, Monday Edition: 700-Mile Fence, Poytner (Oct. 29, 2006), https://tinyurl.com/ydy7o3qh.

By April 2009, the Department of Homeland Security had “erected about 613 miles of new pedestrian fencing and vehicle barriers to thwart illegal border crossers and drug smugglers.” April Reese, U.S.-Mexico Fence Building Continues Despite Obama’s Promise to Review Effects, N.Y. Times (Apr. 16, 2009), https://tinyurl.com/ce4gta. In May 2011, President Obama declared that the fence along the border with Mexico was “basically complete.” Robert Farley, Obama Says the Border Fence Is “Now Basically Complete, PolitiFact (May 16, 2011), https://tinyurl.com/ycddfvgn. According to PolitiFact, Department of Homeland Security officials stated that 649 out of the planned 652 miles of fencing (99.5 percent) had been completed, including 299 miles of vehicle barriers and 350 miles of pedestrian fence. See id. The cost of this infrastructure has been estimated at $6 billion. See Jonathan Weisman, With Senate Vote, Congress Passes Border Fence Bill, Wash. Post (Sept. 30, 2006), https://tinyurl.com/n4c26.

The REAL ID Act

The construction of three-layer border fencing near San Diego was delayed by environmental challenges from the California Coastal Commission, whose approval was necessary to obtain Clean Water Act permits for the project. See Kenneth R. Weiss, State Rejects U.S. Border Barrier Plan, L.A. Times (Feb. 19, 2004), https://tinyurl.com/yaezwj6o. This spurred Congress to take more aggressive action to implement additional legal waiver provisions, including part of the REAL ID Act, the primary purpose of which was to require uniformity among identification cards (a recommendation from the 9/11 Commission). See REAL ID Act of 2005, Pub. L. No. 109–13, 119 Stat. 231, 302–23 (2005) (codified inter alia at 8 U.S.C. Chapter 12); see id. § 102. The border portion of the REAL ID Act allowed the Secretary of the Department of Homeland Security (DHS) unprecedented power to waive compliance with any federal, state, or local law. See id. Under Section 102 of the REAL ID Act, the DHS Secretary is authorized to waive all legal requirements in order to expedite the construction of border barriers. See id. The REAL ID Act also limits judicial review of claims arising from the DHS Secretary’s exercise of the waiver authority, and it allows district courts to consider only those claims alleging a violation of the Constitution. See id.

Following enactment of the REAL ID Act, the Secretary waived legal and environmental requirements to complete construction of the Naco, Arizona, portion of the border fence as part of the SFA. DHS’s waiver of legal and environmental requirements, pursuant to the REAL ID Act, allowed the federal government in constructing the border wall to completely avoid compliance with the National Environmental Policy Act of 1969, the Endangered Species Act, the National Historic Preservation Act, the Clean Air Act, the Safe Drinking Water Act, the Comprehensive Environmental Response, Compensation, and Liability Act, and other similar federal laws that provide for specific analysis and mitigation of environmental and other negative effects as part of federal projects. See Notice of Determination, 72 Fed. Reg. 60,870, 60,870 (Oct. 26, 2007).

The Secretary’s waiver of all environmental and other requirements under the REAL ID Act has withstood Constitutional separation of powers and other challenges in federal court. See, e.g., Save Our Heritage Org. v. Gonzales, 533 F. Supp. 2d 58, 63–64 (D.D.C. 2008); Defs. of Wildlife v. Chertoff, 527 F. Supp. 2d 119, 120 (D.D.C. 2007); County of El Paso v. Chertoff, No. EP–08–CA–196–FM, 2008 WL 4372693, at *4 (W.D. Tex. Aug. 29, 2008). Given the availability of across-the-board waivers of all federal, state, and local laws, landowners and other stakeholders have been stripped of their ability to avail themselves of many valid and otherwise enforceable legal protections, particularly those related to the environment.

Current Status of the Existing Border Wall

As a result of the legislation discussed above, US Customs and Border Protection has constructed a series of physical barriers separating the United States from Mexico, with most barriers located in more populated areas like San Diego, California, and El Paso and McAllen, Texas. See Dennis Wagner, A 2,000-Mile Journey in the Shadow of the Border Wall, USA Today (Sept. 20, 2007), https://tinyurl.com/y7v7lp4s. There is no single “type” of barrier structure utilized in the existing border wall, which is more accurately described as a series of fences made from “wire mesh, chain link, post and rail, sheet piling, concrete barriers for vehicles and X-shaped steel beams for livestock.” Jacobo & Marshall, supra.

As of 2017, the 2,000-mile border has at least 654 miles of fencing, although only 354 miles is pedestrian fencing, as opposed to vehicle barriers. See Wagner, supra. Much of the existing pedestrian wall in South Texas comprises 12–18 foot steel bollards, anchored in concrete or buried in the ground. See id. The current border wall is thus more accurately described as a border fence. The fences are typically located some distance from the actual border (the Rio Grande River) and are not contiguous, but stop and start up again. See id. According to the Government Accountability Office, the current border wall cost on average between $4.16 to $6.85 million per mile. See U.S. Gov’t Accountability Office, Southwest Border Security: Additional Actions Needed to Better Assess Fencing’s Contributions to Operations and Provide Guidance for Identifying Capability Gaps 34 Table 4 (2017), https://www.gao.gov/assets/690/682838.pdf; see also Kiah Collier and T. Christian Miller, Border Agency Set to Jumpstart Trump’s Wall in a Texas Wildlife Refuge, ProPublica (July 28, 2017), https://tinyurl.com/y6v8wvon.

To accomplish construction of border barriers on private land, the federal government filed several hundred statutory condemnation suits, mostly in Texas’s Cameron County and Hidalgo County, after the passing of the Secure Fence Act. See John Burnett, Landowners Likely to Bring More Lawsuits as Trump Moves on Border Wall, NPR (Feb. 23, 2017), https://tinyurl.com/ybkuhcdk. Many of those cases have since been resolved, but there are still numerous outstanding cases (around 85 cases, as of 2017). See David Choi and Bryan Logan, One Section of Trump’s US-Mexico Border Wall Could Prompt “Decades of Court Cases” from Private Landowners, Bus. Insider (Sept. 21, 2017), https://tinyurl.com/yc3tv556.

In Hidalgo County, DHS built the border wall where the International Boundary and Water Commission (IBWC) flood levee is located, in cooperation with Hidalgo County and the Hidalgo County Drainage District No. 1. See Letter from Ramon Garcia, Chairman of the Board of Hidalgo Cty. Drainage Dist. No. 1, to Michael McCant, U.S. Rep. for 10th Dist. of Tex. (Feb. 21, 2017). Under this arrangement, the Hidalgo County Drainage District No. 1 provided significant funding for the project, which included flood control improvements, and the federal government contributed funds for construction of the border wall components of the project. See id. Under flood control easements originally granted from private landowners to Hidalgo County and then from Hidalgo County to the United States, the IBWC had authority to build flood control improvements along the levees on the subject property. See Bell v. United States, 123 Fed. Cl. 390, 394 (2015). Nevertheless, the DHS and the county built a border wall and related infrastructure that served purposes other than only flood control. See id. Property owners adjacent to and burdened by the IBWC flood control levees have filed an inverse condemnation suit against the federal government, arguing that construction of a national security border wall where authority had only been granted to build a flood control levee exceeds the scope of the easements previously granted and thus constitutes a taking. See id. at 394.

Bad Effects of a Physical Border Barrier

Although a physical border barrier may theoretically halt (or at least slow) illegal border crossings of goods and people, the wall has a much broader effect on property owners near the border and on the environment at large. These practical issues may affect the design and construction of the wall, the daily life and business operations of border residents, and the amount of compensation due for a border wall taking.

Separating Property on the River Side of the Physical Border Barrier

It is commonly presumed that the border wall in Texas is built on the banks of the Rio Grande River, creating a physical barrier to preclude illegal crossings across the Rio Grande River. This common belief is inaccurate; an international treaty between the United States and Mexico prohibits the building of any permanent structures within the floodplain of the Rio Grande River. See Gadsden Purchase Treaty, Mex.-U.S. Dec. 30, 1853, 10 Stat. 1031. Mexican engineers with the IBWC have already expressed concerns that some of the new border wall proposals could create a flood risk and could violate the American-Mexican Boundary Treaty. See John Burnett, Mexico Worries that a New Border Wall Will Worsen Flooding, NPR (Apr. 25, 2017), https://tinyurl.com/y8l56b35.

In many instances, the existing border wall is several hundred yards to several miles from the Rio Grande River, which effectively severs large land parcels into two pieces, an orphaned river parcel and a northern parcel. See, e.g., Brendan Mohler, Fence Dividing U.S./Mexico Border Puts Popular Golf Course Out of Business, Golf (Dec. 14, 2015), https://tinyurl.com/ha7998v (discussing the severance of a golf course in Brownsville, Texas). In some instances, agricultural fields and even homes can be located on the river side of the border fence. In addition to pedestrian, vehicular, and farm equipment access issues, there are also safety concerns with living and owning land on the river side of the wall. Where gates are planned and installed, a keypad entry device is located at the entrance. Issues have arisen as to the operational integrity of the gates, potentially stranding landowners on the river side of the wall. Moreover, these gates or openings can become targets for illegal or dangerous activity, creating potential liability or injury to landowners. See generally Wagner, supra. These issues create uncertainty in the minds of willing buyers of the affected property, both as to whether they will make an offer for the affected property and how much of a discount they will seek because of the above issues.

The proposed wall would split wildlife preserves, as discussed further below, and 62 miles of border located in the Tohono O’odham Nation Reservation. See Fernanda Santos, Border Wall Would Cleave Tribe, and Its Connection to Ancestral Land, N.Y. Times (Feb. 20, 2017), https://tinyurl.com/y96g4mbn. The tribe controls 2.8 million acres, most located in Southern Arizona but some located in the Mexican state of Sonora, including ancestral land and burial sites. See id. Although the tribe allowed the placement of certain vehicle barriers on their land under the SFA the tribe vehemently opposes Trump’s border wall. See id.

Environmental Concerns

The primary objective in building a physical border barrier is to physically prevent the movement of persons and objects over the barrier. This objective has been successful in some respects but has also fragmented the habitat of wildlife and otherwise hindered the free travel of wildlife. See Daniella Silva and Suzanne Gamboa, Trump’s Border Wall ‘Catastrophic’ for Environment, Endangered Species: Activists, NBC News (Apr. 22, 2017), https://tinyurl.com/y9slqka9. A continuous border, and potentially solid wall, as Trump proposes, would exacerbate this effect. See id. Scientists and conservationists say that “construction of an impenetrable divider could destroy or damage natural habitats, cut off animal populations who depend on the ability to roam at the border, prevent genetic diversity important to sustaining animal populations, and lead to a loss of natural resources.” Id. Wildlife Biologist Jeff Corwin has explained,

[i]t would be catastrophic for the environment, because for the first time in the geological history of this natural corridor, which affects North to South America, there would be a barrier like that. . . . What I have come to believe is that the Trump administration is crafting the perfect extinction storm.

Id.

A 2011 study authored by researchers from the University of Texas at Austin, Yale University, and the University of California, San Diego, noted:

[R]esearch demonstrates that dispersal barriers need not be entirely impermeable to have strong effects on populations. Species with poor dispersal across the border might have reduced gene flow between populations, which can lead to drift-caused genetic divergence between populations and rapid loss of genetic diversity in small isolated populations. Smaller isolated populations may also be subject to an increased risk of extinction. Populations near species’ range margins are often of low density and might be similarly vulnerable if isolated by dispersal barriers. Even slight decreases in dispersal may have large consequences for species’ populations such as extinction of a low-density metapopulation.

. . . .

Our species-level analysis cent[e]-red around two related aspects of risk: (1) loss of population interconnectivity owing to a reduction in dispersal across the border and (2) reduction in effective population sizes subsequent to loss of connectivity. . . . At the global scale, we deem two groups of species as most at risk. First, species already listed as threatened by the Inter-national Union for the Conservation of Nature (IUCN) or by both the US and Mexican governments are at risk from a loss of connectivity (risk G1, Fig.1). Second, species with small geographic ranges that are bisected into evenly sized populations are at high risk because this scenario produces the smallest remnant populations and ranges (risk G2). Species with small ranges are typically at greater risk of extinction than large-ranged species. At a local scale, we associate risk with remnant populations that are separated from the rest of the species range by barriers along the border (risk L1).

. . . .

Pedestrian barriers might pose a more immediate threat to border conservation than land use change because of the rapid speed with which pedestrian barriers have been constructed (~ 800 km in ~ 2 years; Government Accountability Office, 2009).

. . . .

Under the REAL ID Act of 2005, the Secretary of the DHS has authority to fence the entire border at any time without the oversight of environmental regulatory law that regulates all other infrastructure projects (USLOC, 2005b). This lack of oversight is detrimental to biodiversity conservation efforts and increases the importance of further research on the impacts of barriers along international borders. The REAL ID Act should be amended to reinstate environmental regulation of border security efforts.

Jesse R. Lasky, Walter Jetz, and Timothy H. Keitt, Conservation Biogeography of the US–Mexico Border: A Transcontinental Risk Assessment of Barriers to Animal Dispersal, 17 Diversity & Distributions 673, 674, 684 (2011) (internal citations omitted); see also Melissa Gaskill, United States Border Fence Threatens Wildlife: Barrier Between the United States and Mexico Divides Habitats and Puts Species at Risk, Nature (Aug. 2, 2011), https://tinyurl.com/ycahv7ex (“[t]he border barrier affects 60% to 70% of the habitat in the South Texas Wildlife Refuge Complex, which includes the Laguna Atascosa, Lower Rio Grande Valley, and Santa Ana National Wildlife Refuges”).

Of particular concern, for the first stage of the new border wall, the Trump administration has targeted a national wildlife preserve in South Texas, likely because it will not require the acquisition of private land. Collier and Miller, supra. The Santa Ana National Wildlife Refuge, located south of McAllen, Texas, is one of the nation’s top bird-watching spots, with more than 400 species of birds. See id. The refuge is also home to two endangered cats, the ocelot and jaguarundi, and one of the last stands of sabal palm trees in Texas. See id.

Access Issues

To fulfill the objective of precluding persons from easily traversing the border barrier, Department of Homeland Security tactical guidelines mandate that the border wall extend at least 18 feet above the applicable grade on the south side of the wall to minimize any attempts to cross over the border wall structure. See Construction Begins on Wall Prototypes, U.S. Customs & Border Prot. (Sept. 26, 2017), https://tinyurl.com/y8m4ppdq. The real objective may be to preclude unauthorized persons from easily traversing the border wall, but the design of the border wall may prevent or impair those who are authorized to cross it.

Most of the existing border wall structures built following the SFA were constructed along, or on top of, the IBWC flood control levees, which were originally built to protect the lower Rio Grande Valley from flooding. See, e.g., Bell v. United States, 123 Fed. Cl. 390, 394 (2015). In most instances, before the border wall was built, the IBWC levee was a simple earthen berm built to a certain elevation to control floodwaters from the Rio Grande River but built in compliance with the treaty between the United States and Mexico regarding the diversion of floodwaters. See American-Mexican Boundary Treaty, 22 U.S.C. § 277d-34 (2012).

A gravel or caliche dirt road was typically located atop the IBWC levee. Although the road atop the IBWC levee was not technically a public road, landowners typically were allowed to drive on and across it to access their property. Landowners often built earthen ramps or simply drove down the slope of the levee to their property. Appraisers hired by the government as part of many border wall takings have recognized the access situation is rather unusual because the levee roadway is not a public roadway, but the IBWC has historically permitted owners and their tenants to use the roadway to access their properties.

When the border wall was built along or on top of the IBWC levee, the IBWC levee road was removed, and a road was installed along most segments of the border wall. Although it is possible to drive alongside the border wall on these parallel roads, a landowner cannot merely turn off these roads and gain entry into or exit his property given the physical barrier created by the border wall itself. Instead, a landowner must cross the border wall at one of the designated gaps in the structure, where gates were placed (assuming of course the landowner had authority to open the gate and the gate has not been permanently or temporarily secured by the Border Patrol), or by traveling to the end of the particular border wall segment.

Even if a landowner owned the property to an opening in the border wall or a gate, the landowner often would have to approach the opening or the gate on a ramp parallel to the opening or gate, make a 90-degree turn to pass through the opening or gate itself, then make another 90-degree turn to travel down another ramp parallel to the opening or gate. Navigating these sorts of turns is inconvenient at best but virtually impossible for heavy farm equipment.

Thus, the changed nature of access to property on the river side of the border wall may have a significant effect on the market value of the property adjacent to or burdened by the border wall. Moreover, in some instances landowners have lost all legal access to parcels located on the south side of the border wall, which may preclude the landowner from ever being able to sell the property or obtain a mortgage lien on the property.

Appraisers hired by both the government and landowners on past border wall cases have agreed that access issues do affect the valuation of property affected by the border wall. For example, on at least one occasion, an appraiser for the government has noted that a landowner’s tenant declined to purchase property the landowner was attempting to sell because of access concerns related to the border wall.

Similarly, appraisers hired by landowners in border wall cases have recognized that the creation of the border fence has strained property owners’ rights because strict regulation of the border wall could limit access through the border wall openings to only the landowner, emergency personnel, border patrol, and other government officials. Subsequent limitations on access through the border wall openings could prohibit the landowners from allowing employees, contract workers, vendors, hunters, and guests from accessing property on the other side of the wall.

Safety Concerns Regarding the Physical Border Barrier and Gates

Another important consideration that appraisers hired by both the government and landowners have agreed upon is fear and uncertainty regarding the ability to escape from criminal activity on the south side of the border wall. Although criminal activity obviously has been occurring along the Rio Grande River for many years, and of course is not brought about by construction of the border wall itself, market participants have expressed concerns regarding the limiting effect the border wall may have on those who seek to move safely from the south side of the wall to the north side, when and if encountering criminal activities.

What Might the Future Hold for Trump’s Border Wall?

There is considerable speculation about any expansion of the existing segments of the border wall or the construction of an entirely new border wall. During the 2016 presidential campaign, then-candidate Donald Trump promised to oversee the building of a border wall along the entire 2,000-mile United States–Mexico border. See Phillip Bump, Donald Trump’s Mexico Border Wall Will Be as High as 55 Feet, According to Donald Trump, Wash. Post (Feb. 26, 2016), https://tinyurl.com/yah4qsfn. These campaign promises may have been ambitious, but President Trump has made it clear that the border wall, at least in part, is still one of his priority agenda items. As one of his first acts in office, President Trump signed Executive Order 13767, which directs that a wall be built along the United States–Mexico border. See Exec. Order No. 13,767, 82 Fed. Reg. 8,793, 8,793 (Jan. 25, 2017) (stating that the purpose of the order is to direct “executive departments and agencies . . . to deploy all lawful means to secure the [United States’] southern border, to prevent further illegal immigration into the United States, and to repatriate illegal aliens swiftly, consistently, and humanely” and the policy is to “secure the southern border of the United States [of America]”).

It remains to be seen if a border wall stretching along the entirety of the 2,000-mile United States–Mexico border will eventually be funded and constructed, given significant public and congressional outcries. Although a DHS internal report has indicated construction of the border wall would cost $21.6 billion, an MIT study pegs the cost at close to $40 billion. See Julia Edwards Ainsley, Exclusive—Trump Border ‘Wall’ to Cost $21.6 Billion, Take 3.5 Years to Build: Internal Report, Reuters (Feb. 9, 2017), https://tinyurl.com/yapm8m4x; Konstantin Kakaes, Bad Math Props Up Trump’s Border Wall, MIT Tech. Rev. (Oct. 18, 2016), https://tinyurl.com/jxsr7mk. Customs and Border Protection has gone ahead with the bidding process, and in early October 2017, six federal contractors presented eight constructed prototypes for consideration. See Jennifer Medina, Josh Haner, Josh Williams, and Quoctrung Bui, Eight Ways to Build a Border Wall, N.Y. Times (Nov. 8, 2017), https://tinyurl.com/y89mxotr.

Congress has recently appropriated $1,571,000,000 for several dozen miles of border barriers as part of President Trump’s border wall project. See Consolidated Appropriations Act, H.R. 1625, § 230 at 673 (2018). California has already indicated that it plans to sue the Trump administration over the wall. See Patrick McGreevy and Jazmine Ulloa, California to Sue Trump Administration Over Plan for U.S.-Mexico Border Wall, L.A. Times (Sept. 20, 2017), https://tinyurl.com/yb6brt25. Other suits challenging the border wall are likely, particularly if the Trump administration makes use of waiver provisions of environmental protection regulations. Furthermore, the border area potentially includes almost 5,000 parcels of property in the likely path of the border wall. See Choi and Logan, supra. Numerous individual condemnation proceedings will be a prerequisite for construction.

Conclusion

The potential construction of a US–Mexico border wall is a highly charged project, fraught with political obstacles and high emotional stakes. The erection of the border wall also brings with it significant legal issues and unknowns, such as how to appropriately compensate landowners who own property that is still undeniably within the United States but which will be located on the south side of the border wall. How the government and the courts will address these political and legal issues remains to be seen, but all parties can agree that the border wall project when funded and authorized will spur substantial, long-lasting litigation. n

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By Roy R. Brandys, Nicholas P. Laurent, and Blaire A. Knox

Roy R. Brandys, Nicholas P. Laurent, and Blaire A. Knox are attorneys with Barron, Adler, Clough & Oddo, LLP, in Austin and Houston, Texas.