Friday, June 27, 2008

Assaults on Private Property to Build the Border Wall Challenged in Court

Texas RioGrande Legal Aid has been working to defend the rights of landowners who live in the path of the border wall. Their legal defense of private property rights in south Texas comes as the Department of Homeland Security, led by Secretary Chertoff, is accused of repeatedly violating laws and court orders in their aggressive attmempts to condemn land to build the wall. DHS even went so far as to initiate condemnation proceedings against one of the few south Texas landowners who wanted the border wall, and who had already agreed to sell his land. The Texas Border Coalition continues to challenge the coercive tactics that DHS has employed as it attempts to take over private and municipal property. The University of Texas at Brownsville has announced that they will bring suit to force DHS to comply with a court order requiring that they explore others alternatives to a wall that would slice through their campus. And altough the Supreme Court refused to hear the constitutional challenge to the Real ID Act's waiver privision brought by the Sierra Club and Defenders of Wildlife, there is another constitutional challenge pending, brought by El Paso County, the El Paso County Water Improvement District No. 1, the Hudspeth County Conservation and Reclamation District No. 1, the Ysleta Del Sur Pueblo of the Tigua Nation, Frontera Audubon Society, the Friends of the Wildlife Corridor, and the Friends of Laguna Atascosa National Wildlife Refuge, and Brownsville’s Galeria 409.

The following press release was sent out by Texas RioGrande Legal Aid regarding their ongoing efforts on behalf of private landowners threatened by the border wall:

LOS EBANOS, Texas – Two Rio Grande Valley families will be taking their legal fight against the federal government regarding the construction of the border wall to New Orleans, Louisiana.

Represented by Texas RioGrande Legal Aid (TRLA), the largest provider of legal aid in Texas, the families of Hilaria and Baldomero Muniz and Pamela Rivas are fighting the government’s efforts to take their land to build a wall along the Texas – Mexico border. The legal battle will continue in the Fifth Circuit Court of Appeals in New Orleans on July 8th. The Court will convene at 9 am.

The legal battle began when the Department of Homeland Security (DHS) filed lawsuits against the families to gain access to their land to begin planning the border wall. The families have argued that DHS did not follow the legal steps required before initiating the condemnation proceedings. DHS has sued more than fifty Rio Grande Valley landowners in the border wall process.

According to TRLA attorney Jerome Wesevich,“The government is required to negotiate a reasonable price for the property with these families before they use the court system. The government’s reasonable price was nothing.”

Both the Muniz and Rivas families have owned property in Los Ebanos for several decades. Baldomero and Hilaria Muniz worked as migrant farmworkers to save the money to build their house along the Rio Grande River. They have raised five children in that house and currently use the land to raise goats that they depend on to survive.

“Zero dollars is not a reasonable price for these families’ livelihoods,” added Wesevich. “The government needs to comply with its own laws. Right now, its failure to do so is at the expense of hardworking border landowners.”

Established in 1970, Texas RioGrande Legal Aid, Inc. (TRLA) is a nonprofit organization that provides free civil legal services to low-income and disadvantaged clients in a 68-county service area. TRLA’s mission is to promote the dignity, self-sufficiency, safety and stability of low-income Texas residents by providing high-quality legal assistance and related educational services.

Contact: Jerome Wesevich, Attorney

Cynthia Martinez, Communications Director

Friday, June 20, 2008

The Border Wall’s Lawless History

By Scott Nicol

The border wall, which has already done tremendous damage to the environment of our borderlands, will in coming weeks plug a canyon south of San Diego. More than 2 million cubic yards of earth will be torn from adjacent hills and dumped into a canyon called Smuggler’s Gulch to create a massive earthen berm. The wall will then be built on top of this berm, rather than following the canyon’s natural contours. The Keiwit Corporation will be paid $48.6 million to fill the canyon and build 3.5 miles of border wall, doing irreparable damage the Tijuana River estuary in the process. In Keiwit’s home state of Nebraska, or any other part of the country, federal laws would limit the destruction that such a reckless project could do, but on the border the Department of Homeland Security is no longer bound by our nation’s laws.

In 1996 Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act, which called for the construction of walls along the U.S.-Mexico border. Beginning in the Pacific Ocean and extending inland for 14 miles, the wall would slice through protected lands, Smuggler’s Gulch, and the Tijuana River. It would consist of parallel concrete and steel walls with a graded road between them, lights, cameras, and sensors, and 50 feet on either side cleared of all vegetation.

California’s Coastal Commission determined that the border wall would violate the federal Coastal Zone Management Act. Of particular concern was the damage that would be done to the Tijuana River National Estuarine Research Reserve and other lands that had been set aside for protection, Smuggler’s Gulch in particular, as well as impacts on threatened and endangered species. The Sierra Club and other environmental groups challenged the border wall in court, alleging that it violated the National Environmental Policy Act. The judge agreed, and construction was halted.In 2005 the Real ID Act was attached as a rider on an appropriations bill funding the wars in Iraq and Afghanistan after it failed to pass on its own merits. It contained a provision intended to overrule the objections of the California Coastal Commission and anyone else who might oppose the construction of border walls. It said, “Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive all legal requirements such Secretary, in such Secretary’s sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under this section.”

Department of Homeland Security Secretary Michael Chertoff used his unprecedented new power to “waive in their entirety” the Coastal Zone Management Act, the National Environmental Policy Act, the Endangered Species Act, the Migratory Bird Treaty Act, the Clean Water Act, and other vital federal laws to build the San Diego border wall. The challenges brought by the California Coastal Commission and the Sierra Club were thrown out when the laws that they were based upon were waived.

The Real ID Act amended the Illegal Immigration Reform and Immigrant Responsibility Act, with the phrase “under this section” referring to its 14 miles of California border wall. When the Secure Fence Act was passed two weeks before the 2006 mid-term election, it further amended the Illegal Immigration Reform and Immigrant Responsibility Act, replacing the 14 miles originally called for by the act with over 700 miles of border wall. Because these new walls were now “under this section” Secretary Chertoff had the power under Real ID to “waive all legal requirements” to build them as well.

In 2007 the California pattern was repeated in Arizona. The Sierra Club and Defenders of Wildlife challenged the construction of the border wall in the San Pedro Riparian National Conservation Area. The San Pedro was recognized by the National Audubon Society as its first Globally Important Bird Area, and designated as a world heritage natural area by the United Nations World Heritage Program. The court agreed that the Department of Homeland Security had ignored the requirements of the National Environmental Policy Act when they began building the wall through Arizona’s last free-flowing river, and an injunction temporarily halting construction was handed down. Rather than comply with the law, Secretary Chertoff waived it, once again suspending the laws that were the basis of a successful suit, along with 18 others. Within days of the waiver DHS restarted construction. This case is currently pending before the Supreme Court.

Apparently hoping to head off further court challenges to the border wall, last April Secretary Chertoff issued two waivers. One waived 27 federal laws to allow for the insertion of border walls into the existing flood control levees in Hidalgo County. This followed the determination by the US Fish and Wildlife Service that, “any proposed fence and/or levee segment that bisects lands within the Lower Rio Grande National Wildlife Refuge cannot be found compatible with the purposes for which the refuge was established,” and would therefore be in violation of the National Wildlife Refuge Administration Act. It also brought an abrupt end to the Environmental Impact Statement process mandated by the National Environmental Policy Act.

The second waiver covered every other section of border wall that will be built in 2008 from San Diego, California to Brownsville, Texas. This mega-waiver suspended 36 federal laws. Along with the environmental laws set aside in earlier waivers, Chertoff waived the Farmland Protection Policy Act, the National Historic Preservation Act, the Religious Freedom Restoration Act, the Clean Water Act, the Clean Air Act, the Endangered Species Act, and a host of others. It appears that in his rush to build the border wall, Chertoff was setting aside not only the laws that the wall was certain to violate, but any law that might in any way be relevant.

Predictably, this abuse of power invited court challenge rather than curtailing it. A diverse group of plaintiffs - El Paso County, the El Paso County Water Improvement District No. 1, the Hudspeth County Conservation and Reclamation District No. 1, the Ysleta Del Sur Pueblo of the Tigua Nation, Frontera Audubon Society, the Friends of the Wildlife Corridor, the Friends of Laguna Atascosa National Wildlife Refuge, and Brownsville’s Galeria 409 - have challenged the constitutionality of the Real ID Act’s waiver provision. They allege that giving an Administration appointee the power to overrule acts of Congress that were signed by the President for the express purpose of short-circuiting the functioning of the Judiciary is a violation of the Constitutionally mandated separation of powers.

This is not just an academic question; these plaintiffs will be directly impacted by the suspension of these laws. The waiving of the American Indian Religious Freedom Act means that the wall can be built without consideration of the sites on the Rio Grande that are important to the religious practices of the Tigua Nation. The El Paso and Hudspeth County water districts are charged with providing their counties with drinking and irrigation water. Not only has Chertoff waived the Clean Water Act and the Safe Drinking Water Act, but, “all federal, state, or other laws, regulations and legal requirements of, deriving from, or related to the subject of” the laws listed in the waiver. Apparently, no laws related to water are in force, leaving water districts with no way of knowing what rules still apply.

Long after the remains of the border wall share museum space with the broken concrete of the Berlin Wall, Smuggler’s Gulch will still be filled in, and the Tijuana River estuary that it flows into silted up. Secretary Chertoff, however, is so fixated on building the border wall that he is willing to ignore the consequences of his actions. Serious violations of federal law, resulting in irreparable damage to our nation’s natural and cultural heritage; to homes and farms and businesses; and to the continuation of Native American religious practices that predate the founding of the United States, are all acceptable costs according to this narrow mindset. Chertoff has admitted that, “Yes, you can get over it; yes, you can get under it,” but in his mind an ineffectual border wall is still worth sacrificing the fundamental principles enshrined in the U.S. Constitution.

Wednesday, June 4, 2008

Building border walls during hurricane season is dangerous

By K. Rod Summy

Most of us who live here in the Lower Rio Grande Valley (LRGV) of Texas were very relieved when the Secretary of Homeland Security recently thwarted a potentially dangerous proposal by the Border Patrol to check the immigration status of all persons leaving this area in the event of an emergency evacuation.

This idea may have sounded good on paper, but it would have very probably placed a lot of people in harm’s way if it were ever implemented during an evacuation. We applaud Mr. Chertoff for recognizing this danger and for making it clear to all that “…the safety of American citizens is and will remain a top priority of the Department of Homeland Security.”

There is another DHS plan in progress which also sounds good on paper, but is probably more dangerous and potentially destructive than the one mentioned previously. The mandate to begin construction on the border wall in Cameron and Hidalgo Counties in the very near future and to finish it by year’s end essentially guarantees that much or all of our flood-control levee system will be under construction during the height of the 2008 hurricane season, which extends from early-June through mid-October.

The potential danger of this plan should be obvious – the LRGV region is located within a major hurricane zone and, during an average year, our probability of experiencing a major tropical storm or hurricane is about 1 in 7 (14%). Although the majority of these storms develop during the late-summer and early-fall period, some of the most destructive hurricanes on record have made landfall on the Texas coast as early as June – e.g., Hurricane Alice during June, 1954 and Hurricane Audrey during June, 1957.

In addition to their highly unpredictable pathways and awesome destructive power, one of the major concerns relating to hurricanes involves the rapidity at which these storms may develop, intensify and move across the Gulf of Mexico. For example, the recent storm which ravaged much of the Gulf Coast area and essentially destroyed the city of New Orleans, Louisiana (Hurricane Katrina) developed as a tropical depression near the Bahamas on August 23, 2005, strengthened into a tropical storm the following day, intensified to a Category 1 hurricane by August 25 (winds greater than 74 mph), further intensified to Category 5 status by August 28 (winds greater than 155 mph), and made landfall as a Category 4 hurricane (winds of 140-150 mph) near Grande Isle, LA, on August 29 – a total of 6 days between the time the storm formed and the date of landfall on the Louisiana coast.

What this means in practical terms is that if a major hurricane destined to hit the Rio Grande Valley develops this year over the Caribbean or Gulf of Mexico, we will have about a week or less to prepare for it. While this short time interval is probably sufficient to organize an orderly evacuation of human residents, it almost certainly does not provide sufficient time to “batten down the hatches” of any flood-control levees under construction at the time a hurricane warning is issued.

If a major hurricane associated with torrential rains does indeed impact the Rio Grande Valley region this year, our levee system will have to withstand water currents capable of washing out dams, knocking down bridges and uprooting large trees. Therefore, we need to be very cautious in believing any claims by DHS or their contractors and engineers that initiating major levee construction projects at the beginning of our current hurricane season is okay and will pose no problems.

If we are impacted by a major hurricane and our levee system holds (including those areas under construction), then the experts will indeed be correct and the story will end happily. On the other hand, if they are wrong and the levee system fails, the Rio Grande Valley will very probably be subjected to massive flooding and we may well find ourselves living in the midst of drowned and ruined cities similar to those that are now commonplace in Louisiana and other areas impacted by Hurricane Katrina three years ago.

The flood-control levee system of the Rio Grande Valley is our primary defense against such a disaster, and allowing anyone tamper with it during the annual hurricane season is tantamount to giving them a pair of dice and allowing them to play a game of “craps” with our lives and property as the stakes.

The obvious solution to this problem is simply to postpone construction of the border wall project until the 2008 hurricane season ends during mid-October, or to limit construction during the hurricane season per se to levee improvements in areas in dire need of repair.

This common-sense approach might be somewhat inconvenient as it would require extending the completion deadline by a period of several months, although this delay would probably be in the best interests of everyone involved as it would allow sufficient time for DHS contractors do the job right and to avoid the tendency by some to view work on our critical levee system as a “rush job,” which we cannot afford under any circumstance.

The legal precedent for such an extension already exists – the DHS Secretary waived 37 Federal laws in order to expedite construction of the border wall in Texas, and a simple waiver that would delay construction until a safer time of year would not only be perfectly legal, but would also reinforce Mr. Chertoff’s previous commitment that “… the safety of American citizens is and will remain a top priority of the Department of Homeland Security.”

K. Rod Summy is an associate professor of entomology. He lives in Weslaco, Texas.