Inverse Condemnation and the Border Patrol

Here's another case involving property rights along the U.S. - Mexico border, but the issue is somewhat different than last week's US v. 1.04 Acres case.  The issue this time is not the border fence, and it's not about an affirmative exercise of eminent domain.  Instead, this case involves allegations of entry onto private property by agents of the U.S. Border Patrol in pursuit of illegal immigrants. 

In International Industrial Park, Inc. v. United States, No. 06-876L (Feb. 22, 2008), a San Diego, California-area property owner sued the federal government in the Court of Federal Claims for just compensation, complaining of the Border Patrol's violation of its property rights:

As a result of these initiatives since September 11, 2001, IIP states that Border Patrol agents occupy Parcel 11 on an around-the-clock basis. Mr. Wick states in his declaration that Border Patrol vehicles speed across roads on IIP’s property, and that vans or buses are brought in to haul away the illegal aliens. He further states that Border Patrol agents fan out over Parcel 11 on all-terrain vehicles, on horseback, or on foot in an effort to apprehend illegal immigrants. Mr. Wick complains that Border Patrol agents even stop and question him, as well as contractors or employees, as they go about their business on the property. He says that he often is stopped while showing the property to potential buyers or lessees. IIP alleges that the Border Patrol has cut open locked gates, and has graded its own roads on the property. IIP asserts that the Border Patrol has damaged Parcel 11’s environmentally sensitive areas, and interfered with construction projects. Mr. Wick states that the Border Patrol has declined offers  to lease portions of the property for its law enforcement activities, or to discuss the granting of further easements.

Slip op. at 5.  The CFC held that the six-year statute of limitations did not require dismissal of the lawsuit (see, e.g., the John R. Sand & Gravel case), rejecting the government's argument that its activities on the land was no worse in the past six years than it was before.

The court also held that the landowner's complaint properly stated a claim for relief, dismissing the government's claim that because a previous owner of the land had granted the Border Patrol a limited right of entry, that did not mean that the owner had surrendered the right to exclude.  Slip op. at 9.  The court also rejected the government's argument that it was immune from having to pay compensation because the Patrol's activities were exercises of police power.  The court was right on, because a claim for just compensation in the CFC is predicated on the landowner's recognition that the activities complained about are otherwise legitimate -- the CFC may only award compensation, and lacks jurisdiction to strike down regulations, or enjoin government activity.  Only district courts have that power.

Read the entire opinion here.