Another Hurdle for the Border Fence

Bill Hing posted previously on the border fence litigation.  Here is the latest.  A Brownsville Herald report states that “After a one-month deliberation, US District Judge Andrew S. Hanen has issued the most significant decision in the border fence’s short judicial history.” The court’s order is available here.

The order was issued in the case against Eloisa Tamez, who owns property along the barrier’s proposed path in El Calaboz.  The court found that the federal government is authorized by the Declaration of Taking Act to condemn Tamez’s land. But according to the ruling, negotiations must take place between the landowner and the Department of Homeland Security before property is seized. Immediately after the decision was entered in Tamez’s case, 25 previously pending cases were scheduled in Hanen’s Brownsville court for later in March.

At a February hearing, Tamez’s lawyer, Peter Schey, of the Los Angeles-based Center for Human Rights and Constitutional Law, argued that Department of Homeland Security Secretary Michael Chertoff had violated federal law by failing to negotiate with her over the value of her property before filing a land condemnation lawsuit. In his decision issued late Friday, Hanen ruled that “Dr. Tamez correctly asserts that negotiations are a prerequisite to the exercise of the power of eminent domain.” The ruling’s conclusion also states that “There is contradictory and insufficient evidence before this court as to whether there has been bona fide efforts to negotiate with Dr. Tamez.”

KJ