Eminent Domain and the Border Fence

What does a fence along the U.S. - Mexico border to deter illegal crossings have to do with eminent domain law?  Well, when the government is condemning property for the fence, a lot.

When it decided to put up a fence along the US-Mexico border, Congress gave the Attorney General the power to use eminent domain:

When the Attorney General and the lawful owner of an interest identified pursuant to paragraph (1) are unable to agree upon a reasonable price, the Attorney General may commence condemnation proceedings pursuant to section 3113 of title 40. [the General Condemnation Act of 1888]

See 8 U.S.C. § 1103(b)(3). 

I. What Procedures to Follow?

Congress, however, did not specify what procedures must be followed in the condemnation action.  Must the federal government follow the straight-take procedures of Rule 71A of the Federal Rules of Civil Procedure, which require a final judgment before the government takes possession of property, or could it rely upon the expedited procedures of the Declaration of Taking Act, which permits the government to take possession of property before final judgment?   

That was the first issue in United States v. 1.04 Acres of Land, No. B-08-044 (S.D.Tex., Mar. 7, 2008), the first case, as far as I can tell, to address the issue.   

The first section of the General Condemnation Act of 1888 is now codifided at 40 U.S.C. §  3113, and but does not specify any procedures to be used:

An officer of the Federal Government authorized to acquire real estate for the erection of a public building or for other public uses may acquire the real estate for the Government by condemnation, under judicial process, when the officer believes that it is necessary or advantageous to the Government to do so. The Attorney General, on application of the officer, shall have condemnation proceedings begun within 30 days from receipt of the application at the Department of Justice.

Prior to 1951, the second section of the 1888 Act specified that state law eminent domain procedures were to be used in federal court condemnation actions.  However, with the adoption of Rule 71A of the Federal Rules of Civil Procedure, the federal courts now follow a uniform federal "straight-take" procedure which requires a final judgment before the government may take possession. 

In 1.04 Acres, the property owner objected to the government's use of the the expedited procedures of the Declaration of Taking Act to take her land for a portion of the border fence, since, she argued, 8 U.S.C. § 1103(b)(2) requires the government to use the procedures specified in the 1888 Act, which means only the straight-take process. 

The court rejected the argument, and held the government could use the expedited DTA procedures in an action instituted under the General Condemnation Act, since the 1888 Act does not specify what procedures must be followed.  The court held that the DTA was "supplemental" and "ancillary" to the government's power to take, and that the 1888 Act did not require that any set of procedures be followed, noting that prior to Rule 71's adoption, federal courts followed state law procedures:

Given the supplemental nature of the DTA, this Court finds that the provisions of the DTA are available whenever an officer of the United States is authorized to bring a condemnation action in federal court pursuant to the GCA [General Condemnation Act of 1888], 40 U.S.C. § 3113. The right to use the provisions of the DTA is inherent and incidental in all condemnation actions brought under the GCA; thus, this Court finds that Congress does not need to expressly authorize the use of the provisions of the DTA when it otherwise gives the United States authority to proceed under the GCA. See Polson Logging Co. v. United States, 149 F.2d 877, 878 (9th Cir. 1945) (holding that the right of the United States to use the expedited procedures of the DTA is “a right of the United States in all proceedings for condemnation”).

Slip op. at 18.

The bottom line: Congress authorized the taking of property for the border fence, but didn't specify the procedures to be followed.  Therefore, land may be taken by Rule 71A's straight-take procedures or the expedited "take it now" procedures of the DTA.  Government's choice.

II.  Negotiations or "Contact?"

The second issue was whether the government had conformed to the requirement in 8 U.S.C. § 1103(b)(3) to negotiate: "[w]hen the Attorney General and the lawful owner of an interest identified pursuant to paragraph (1) are unable to agree upon a reasonable price. . . " 

The government argued that the above language did not require it to negotiate first with the property owner, but the court rejected that claim, holding that the statute "clearly contemplates that some attempt has been made to reach an agreement prior to the Attorney General exercising the authority to pursue eminent domain remedies. . . This Court finds that Congress clearly intended there to be some level of negotiation between the Government and the owner of a property interest prior to the institution of eminent domain procedures pursuant to 8 U.S.C. § 1103(b)(3)."  Slip op. at 22.  The court held there must have been some "bona fide" attempts by the government before bringing suit.

The government next asserted that its "contacts" with the property owner qualified as bona fide "negotiations."  However, the only evidence that had been submitted to the court was the landowner's written declaration that the government had not negotiated with her, but that she had "conversations and contacts with agents of the Department of Homeland Security over approximately the last six months."  Slip op. at 26.  [Editorial note -- any bets on the tone of those "conversations and contacts"?  My guess was that they were along the lines of the "the federal government does not negotiate" position like in Wilkie v. Robbins.] 

The court rejected the government's claim that mere contacts and conversations qualified as bona fide negotiations, since the government had not submitted any positive evidence that it had complied with the statute's requirement.  The court gave the government two weeks to provide such evidence, or actually negotiate with the landowner.

So the case isn't over, just yet.  The complete opinion of the court is posted here.

My thanks to my Damon Key colleague, immigration attorney David McCauley for pointing out this decision.