There has been a lot of news lately concerning President Trump’s desire to build a border wall. Many of the articles focus on the efficacy, costs and practical challenges of building the wall. But the discussions are also starting to move into our world of eminent domain. An Op Ed piece in the Washington Post talks about Donald Trump’s Great Wall of Eminent Domain and mentions that 67 percent of the nearly 2,000 border miles constitute private and state-owned lands. The Daily Beast published an article called The Great Wall of Trump Would Be the Ultimate Eminent Domain Horror Show, which describes 480 acquisitions occurring in 2008 when 370 miles of pedestrian fencing along the border was built. If we assume a comparable number for the estimated 1,000+ miles of right-of-way that must be acquired for Trump’s Border Wall, there would be well over 1,200 acquisitions. The article discussed grim stories of how Native American burial grounds were impacted and how construction pursuant to the earlier Secure Fence Act left human remains hanging off of machinery used to build the wall.
In other words, eminent domain will almost certainly feature more and more prominently in the nation’s consciousness should President Trump’s border wall move forward. The last time I recall this occurring was in 2005 when the United States Supreme Court held in Kelo v. City of New London 545 U.S. 469 (2005) that generating more tax revenues was a valid public purpose that enabled the government to take private property for private redevelopment. Trump’s Border Wall appears to be far more polarizing in many different ways, so we will undoubtedly see a tremendous amount of political and legal challenges in the days ahead, and eminent domain will be an inevitable part of it.
Just yesterday, I was contacted by a local radio station (KNX 1070) and interviewed concerning Trump’s Border Wall and whether it could be built as quickly as President Trump claims. The producer of the news program had done her own research and asked me whether a 1907 proclamation by President Theodore Roosevelt called the Roosevelt Reservation meant the federal government already owned all the right of way it needs along the U.S. / Mexico border. This was news to me, so I found a copy of it online. I ultimately explained to the producer that the Roosevelt Reservation was limited to California, Arizona, and New Mexico, exempted properties that were privately owned, and really only permitted highway use. While it proved not to be a panacea for President Trump’s right-of-way needs and ultimately was not part of my interview, it certainly demonstrates the creative thinking people may use to fast-track the project.
As I sat down to write this post, I read one additional informative article that touches on many issues surrounding the Border Wall. One item from the article that I found of particular note was the Real ID Act of 2005 which allows the Department of Homeland Security to waive 37 federal laws to construct border fencing, including the Endangered Species Act. In other words, it’s possible that President Trump could build the wall without the usual analysis of environmental impacts. Because a wall would impose a physical barrier not only for two-legged animals (albeit, with questionable long-term efficacy), but also migratory wildlife, this could be a significant concern to environmental groups. But it may theoretically eliminate one significant obstacle in President Trump’s desire to fast-track the Border Wall’s construction.
Whether you support or oppose President Trump’s Border Wall, it will almost certainly bring to the forefront the work we eminent domain practitioners do.
David Graeler serves as Chair of Nossaman’s Litigation Department and Co-Chair of its Real Estate Group. With nearly 25 years of litigation and trial experience representing both plaintiffs and defendants, David excels at ...
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