Pitt lawprof Gerald S. Dickinson has written an interesting op-ed in the Washington Post, “The biggest problem for Trump’s border wall isn’t money. It’s getting the land.” The sublede poses an interesting thought: “Eminent domain fights could take years.”
Which raises the question, could it?
Yes, it might, as Professor Dickinson notes. There’s the preliminaries, things like environmental and regulatory review. Negotiating with the property owners (if the feds either are required, or want, to go that route). There’s the special issue of the feds condemning lands occupied by tribes.
But what about the biggest issue: are the feds going to use straight taking, or quick take (Declaration of Taking Act)? If the latter, any fights about compensation could get kicked down the road, and seizure of property — and construction — would not have to wait.
We posted on this a while back (“Eminent Domain and the Border Fence“), and we provided some thoughts for the big Pro Publica story on the border wall earlier this year (“‘Abuse, Mistakes and Unfairness’ In Border Wall Eminent Domain (But It’s Not Just Happening There)“).
If the feds go the quick take route, there doesn’t seem like a lot that could be done to slow-walk building of the wall. You only need to look to the ongoing pipeline cases to see examples of how certain strategies may work or not work when employed against a condemnor who is allowed to take immediate possession (even though they don’t have quick take power!).
Professor Dickinson says he’s in the process of writing another op-ed on the quick take power. We’ll look forward to reading that when published, too.