The Taking

The Taking, illustrated: A Texas family's story of losing land for the border fence

In comic strip form, read one border resident's story of waiting nearly a decade for the government to pay for land it seized for the border fence.

by Susie Cagle, ProPublica Dec. 20, 201712 PM Central

Lead image for this article — Credit: Illustration by Susie Cagle/ProPublica, Martin do Nascimento for The Texas Tribune

Inside the federal government's haphazard, decade-long process of seizing private land for a border fence.
More in this series

In 2007, the Department of Homeland Security began building 654 miles of fencing along the U.S.-Mexico border. To complete the job, the agency had to seize land from private landowners, most living in Texas’ Rio Grande Valley. A decade later, some landowners have yet to reach agreement with Homeland Security on the amount they are due for the land they have lost. This is the story of one such case.

Each taking got a little closer to Tony Zavaleta.

The agents wanted property that had belonged to Zavaleta’s late father: a little more than an acre of brushland at the southern edge of Brownsville, Texas, just on the other side of the levee — land the Department of Homeland Security needed to build an 18-foot metal border fence. Zavaleta’s 95-year-old mother wasn’t in a position to fight Homeland Security over her little vacant lot of brush. Zavaleta stepped in to negotiate with the federal government by himself.

His family’s property was part of a bigger court case, United States of America v. 15.919 acres of land, which began just like hundreds of other lawsuits to seize land along the Rio Grande: a few Google Earth screenshots; an error-riddled legal filing; and a tiny check deposited with the court to compensate the landowners.

Nearly 10 years later, most of the border fence lawsuits have now been resolved, one way or another. But scores of cases still remain open — reminders of the federal government’s nearly unchecked power when it comes to taking land.

While many worry about President Trump’s promise to build a newer, bigger wall, defendants in the unresolved lawsuits are left with a more immediate concern: When will they be fairly paid for the land they lost years ago?

Brownsville, Texas, has long been on the frontier of American history.

It is a hardscrabble city, routinely ranking first in the country for the highest percentage of residents living in poverty. 93% Hispanic 33% in poverty 29% use food stamps

Brownsville sits at the edge of the country, along the Rio Grande, the slow-moving river that forms the border between Mexico and Texas.

Its geography made the city a prime location for a border wall after President George W. Bush signed the Secure Fence Act in 2006. Normally, when a landowner doesn’t want to sell, the government can use eminent domain to take the land anyway.

The two sides go to court, a judge determines how much the government must pay, and the feds get the land.

But to build the border fence, the federal government used a more expeditious kind of eminent domain: the Declaration of Taking.

A little-known law created during the Great Depression, a declaration of taking allows the federal government to seize property immediately, so long as it deposits money to fairly compensate the landowners. The government starts building, and the two sides are supposed to reach an agreement over compensation later.

The average time to resolve a federal eminent domain case is 21 months. Nobody — not Zavaleta, not Homeland Security — thought it would take almost 10 years to reach a deal.

The unresolved lawsuits suggest a reason for the long delay: In rushing to meet a deadline set by Congress to finish construction by December 2008, the government botched their cases.

Homeland Security officials took the land for the fence before determining the specific metes and bounds of the property they needed, before completing the necessary legal paperwork, before they knew who owned the land that would become this new metal border, and before they had formally appraised the property to determine a fair price to pay. No case was messier than United States of America v. 15.919 acres of land.

Justice Department attorney Daniel Hu filed the first Declaration of Taking in the waning summer of 2008.

To build the wall, Homeland Security wanted to take a twisting, 15.919-acre ribbon of land from a larger chunk of property. At first, Justice Department officials thought all of it belonged to the city of Brownsville. They were wrong.

Judge Andrew Hanen heard most of the border fence cases.

Land holder attorney Kim Loessin worked on dozens of border wall land seizure cases in the Rio Grande Valley.

The Justice Department finally began to untangle the case in 2015. That March, they agreed to pay the City of Brownsville $600,000 for a total of 26 acres, adding more land to the final deal. Private landholders heard nothing until months later.

Tony Zavaleta was the only defendant to attend a hearing in the case, representing his aging mother in court.

Zavaleta had seen what it meant to fight — as a vice president of government relations at Texas Southmost College, he had attempted to negotiate with the federal government over the placement of the border fence on campus — with mixed results.

A former Brownsville city commissioner, he figured he knew what he was doing -- at least as much as any landowner could.

On Aug. 11, 2015, Zavaleta’s deal became official. The government ultimately raised their offer from $2,800 to $3,500. Other landowners claims began to fall into place. Linda Louise Waller lost a little more than two and a half acres that had belonged to her late husband Jack. $6,100 Sanchez and Garcia family heirs parted with a little more than a half acre. $1,700

The Browne sisters were the only defendants in United States of America v. 15.919 acres of land who hired a lawyer.

When federal officials showed up to take the Brownes’ land, they discovered that the sisters had been negotiating with local government agencies for over a dozen years to sell their property for a transportation project. Planned since the mid-1990s, the East Loop Highway would connect trucks crossing from Mexico to the Port of Brownsville on the Gulf, reducing traffic and pollution in Brownsville’s neighborhoods and spurring industrial growth.

The federal government insisted that the border fence take priority over the planned road. Justice Department attorneys and city and county officials reached an unlikely compromise: If and when the East Loop Highway was fully funded and ready for construction, the federal government would return to move the fence.

Kim Loessin represented the executor of the Browne sisters’ trusts in an ultimate settlement. The government’s initial offer: $10,200. The final payment: $190,000. 5.093 acres

Their fellow defendants who were not represented by an attorney received, on average, $3,754 per acre. The Brownes were paid $37,306 per acre.

Tony Zavaleta hadn’t known that one of his neighbors had fought, and won.

More than nine years after it was filed, United States of America v. 15.919 acres of land is still an open case. This October, Martha Fries and Maribel Guerra were finally paid for their family tract: 1.5755 acres, $5,750

Several named defendants are still listed on the docket, though it’s not clear what their claim might be to the land -- or if they even know they’re being sued by the government.

The East Loop highway is still just a set of plans.

The fence at the edge of Impala Drive looms along the levee, unmoved, a sharp edge at the southern border of this dense residential neighborhood. Ramon Rivera has lived here since 1991. His own fence ends a few feet from the government’s.

Zavaleta worries that the government is not done taking his family’s land. Fifteen miles northeast from his mother’s lot, the road narrows and the sky opens up, wide and milky at the edge of the Gulf. This is Zavaleta’s ranch, granted to his family by the Spanish government in the 1700s, and handed down in pieces to Tony and his cousins -- members of one of the 13 founding families of northern Mexico.

His 20 acres run to the loamy banks of the Rio Grande. He built a little ranch house near the water. Zavaleta figures it’s a likely place for Trump's wall. And if the government comes for it, what can he do?

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