Some 450 businesses have submitted design proposals to be a part of the controversial U.S.-Mexico wall project. Over the last few months, there has been a lot of interest and academic discussion on the feasibility of the project from a logistics perspective to an engineering perspective. As eminent domain lawyers, we’re going to focus this article on whether the U.S. government would be able to acquire the needed land to build the wall.
Trump’s proposed, unfunded $15-billion project (much, much more by some estimates) would stretch 2,000 miles. About one-third of the needed land belongs to the federal government or tribal authorities, while two-thirds of the land belongs to the states and private owners.
The Fifth Amendment, the basis for eminent domain, allows the federal government to take private land solely for public use, as long as just compensation is given to the landowner. Just compensation means that the landowner receives fair market value for his property. The monetary value is determined by what the property would sell for if the landowner was not pressured to sell. So, the federal government has the legal right to acquire the land.
But the eminent domain process can be long and expensive, even for the smallest piece of land. An often cited example of this is a battle involving Eloisa Tamez during the Bush Administration. As part of a plan to build more than 600 miles of fencing on the California, New Mexico, Texas, and Arizona borders, the federal government needed to acquire one acre of Tamez’s land. After a seven year battle, the government acquired a quarter-acre piece of land for $56,000.
Building the wall may require hundreds of properties that could be held up in court for years. The wall may involve hundreds of Tamezs. It took about a decade to settle all eminent domain lawsuits involved in the Bush-era fence plan, according to the Government Accountability Office (GAO). Trump’s proposed undertaking is significantly more extensive and will likely involve greater challenges than the Bush-era fence.
Eminent domain proceedings could delay the project for years and last much longer than a single Presidential term. It could trigger decades of disputes before anything is ever built. In addition to taking land from private owners, the federal government would also face problems with the state and local governments and tribal nations.
Taking property from Native American Nations involves getting a bill passed in Congress since nations and their land are protected by treaties and other statutory equivalents. The Supreme Court has ruled that the federal government must take tribal interests into account.
So will the wall get built? Who knows? But problems and delays are a virtual certainty.
If you are property or business owner affected by eminent domain, you can learn more about your options by giving us a call at 866- EM-Domain.