CFC: No "Border Patrol" Servitude

In D & D Land Holdings v. United States, No. 06-877L (filed under seal: June 25, 2008, reissued: June 30, 2008), the Court of Federal Claims held the landowner's claim that the Border Patrol's activities on its land resulted in a compensable Fifth Amendment taking was not barred by the six-year statute of limitations, and that the landowner had a property right to keep Border Patrol agents off its property.  The CFC denied the federal government's motions to dismiss and for summary judgment. The court summarized the plaintiff's complaint:

[P]laintiff claims that defendant’s construction of a border fence between the United States and Mexico resulted in the channeling of illegal immigrants onto its property “where they can be rounded up, arrested, and deported.”  According to plaintiff, Border Patrol agents utilize its property for these purposes on an “almost daily” basis.

Slip op. at 1 (citiation omitted).  The most interesting part of the decision was the court's treatment of the government's argument that the landowner did not possess a recognized property interest in keeping Border Patrol agents off its property:

Defendant asserts that plaintiff does not possess a compensable property right to exclude Border Patrol agents from the subject property “because the entry by the Border Patrol under such circumstances is an exercise of the United States’ police power[,] which has traditionally not been viewed as giving rise to a claim for compensation.” According to defendant, the Border Patrol’s activities on the subject property are non-compensable “because property ‘seized by the  government under its police power does not constitute property seized for  ‘public use’ within the meaning of the Fifth Amendment.’” Id. at 27 (quoting Seay v. United States, 61 Fed. Cl. 32, 35 (2004)). Furthermore, defendant argues that “[e]ven if Plaintiff possesses a compensable property right to exclude the Border Patrol from its property, its factual allegations . . . do not state a claim upon which relief can be granted,” because the Border Patrol’s entry onto the subject property “is a traditional exercise of the government’s police power,” id. at 29; accord Def.’s Reply 12 (stating that the Border Patrol is authorized to enter onto private lands within twenty-five miles of the international border for the purpose of patrolling the border and that plaintiff acquired title to its property “subject to the existence of the Border Patrol’s right to access the property to patrol for illegal aliens”).

Slip op. at 19 (citations and footnote omitted). The court correctly rejected the argument, although with little analysis.  See slip op. at 19-20.  The government essentially asserted a
Border Patrol easement or servitude which would give it an absolute right to trespass on private property without compensation.  But this has never been the law. 

If you think about it, accepting the government's argument would essentially write the Takings Clause out of the Constitution, except for those instances where the government is affirmatively attempting to exercise eminent domain.  If an assertion that the government was immune from having to provide compensation because it was exercising the "police power" was all that was necessary to dismiss an inverse condemnation claim in the CFC, there wouldn't be much left of the Tucker Act, either.  The CFC does not have jurisdiction to consider eminent domain lawsuits where the federal government is attempting to take property, nor does it have jurisdiction to declare a government action invalid, it only has jurisdiction to award compensation.   The validity of the government's actions must be presumed before a CFC claim for compensation is ripe, and a property owner who wants to challenge the Border Patrol ability to enter its property needs to go to a district court, not the CFC.  If the Border Patrol's action was not pursuant to its "police power," it can't do it. Thus, rather than immunizing the government from a claim for compensation, an assertion that the trespasses were accomplished pursuant to the police power is actually the landowner's ticket to the CFC and a claim for compensation.

Read the entire CFC opinion here.