News Room

Bexar and El Paso counties vote to join lawsuit challenging border wall
May 28, 2008

In El Paso, county commissioners voted 4 to 1 to rejoin the Texas Border Coalition (TBC) and to join the group’s lawsuit against the government. The dissenting voice against taking legal action was Republican commissioner Dan Haggerty.

Written by Joey Gomez, Rio Grande Guardian


El Paso County Commissioner Veronica Escobar

EDINBURG, May 27 - Two of the largest counties in the state of Texas on Tuesday agreed to join a class action lawsuit against the federal government’s plans to build border fencing.

In El Paso, county commissioners voted 4 to 1 to rejoin the Texas Border Coalition (TBC) and to join the group’s lawsuit against the government. The dissenting voice against taking legal action was Republican commissioner Dan Haggerty.

In Bexar County, the vote was 5 to 0. Last week, the City of Presidio voted to join the TBC and participate in the lawsuit. TBC Chair and Eagle Pass Mayor Chad Foster said more and more governmental bodies in Texas are backing TBC’s firm stance against the government to halt the “unlawful construction” of a border wall.

“We are pleased that El Paso and Bexar County, along with the city of Presidio, are championing the rights of the people of Texas by joining TBC’s lawsuit to keep U.S. Department of Homeland Security Secretary Michael Chertoff from building a useless, expensive and potentially damaging wall across the Texas-Mexico border,” Foster said.

Foster said the TBC’s suit argues that Chertoff “blatantly ignored two important federal laws in his zeal to complete construction of the wall by year’s end.” The first, Foster said, was that the secretary failed to consult with property owners as required by law ‘to minimize the impact on the environment, culture, commerce, and quality of life for the communities and residents located near the sites at which such fencing is to be constructed.’

In addition, Foster said, Chertoff neglected to define the interest he sought in the land and to fix a price for it with the landowner.
“Secretary Chertoff should not only explain himself, he should do the right thing and halt construction on his expensive and useless one-size-fits-all solution to border security,” Foster said.

“Instead, the secretary should be working toward genuine solutions, with input from local and state officials. Only then will we achieve real security along our nation’s southern border.”

Bexar County Judge Nelson Wolff had intimated last week that he and his colleagues on commissioner’s court would join the class action lawsuit. The county’s economic interests are deemed to be inextricably linked to trade with Mexico, and in particular Monterrey.

In El Paso, county commissioners opted to challenge Chertoff’s right to waive all environmental laws in order to speed up construction of the fence by the end of the year. El Paso currently has 20 miles of border fencing. DHS wants to build an additional 31 miles of fencing.

A motion was offered by El Paso County Judge Anthony Cobos to sign an engagement letter for the pro-bono legal services of law firm Mayer Brown to challenge the constitutionality of the process by which the federal government is attempting to build the border fence. The motion was passed.

“I think it's highly important that we take a position that we let our opinion be heard,” Cobos said. “This lawsuit is not really specifically about a border fence, this lawsuit is about overreaching of federal government, and acting without written policy or procedure and protocols about how to go about obtaining the property required to build this border fence.”

Cobos said the County of El Paso is not against the government contracting with a rancher who owns property along the border for example, as long as the agreement is mutually fair and equitable for the landowner.

Federal law requires that before DHS constructs any physical barrier or roads to support the fence it must negotiate with property owners and arrive at a reasonable price for that land.

There is also a requirement that Chertoff consult with property owners and communities that would be impacted over the location of the fence, as well as any environmental, economic, or cultural impacts that might occur as a result of construction. This provision was included in an amendment to a major spending bill late last year by U.S. Sen. Kay Bailey Hutchison, R-Texas.

“This is unprecedented. This is the broadest waiver of federal laws that has ever been issued in this country,” El Paso County Attorney José Rodríguez told commissioners at Tuesday morning’s meeting.

“It defies the county, and citizens of normal and appellate review of any action by federal agencies that limits our ability to have a federal court determine whether or not the secretary is acting consistent with the constitution or federal law,” Rodríguez said.

“We are not saying we don't want the fence built, we are saying if you are going to build the fence then you should follow certain processes that everyone else is expected to follow.”

Rodríguez chairs the TBC’s health committee.

El Paso County commissioners also agreed to join a second lawsuit filed on May 16 by the TBC. The lawsuit was initially brought by El Calaboz property owner Eloisa Taméz.

The City of El Paso is a dues-paying member of the TBC but the County hasn't been member since 2003.

Rodríguez said the TBC lawsuit offers a “different approach” because it contends that Chertoff abused his authority by failing to comply with certain requirements under the federal immigration law. Rodríguez said the TBC was arguing that Chertoff failed to comply with certain provisions in the Constitution, specifically the Fifth Amendment Due Process and 14th Amendment provisions of the Equal Protection Clause.

The government has not propagated any regulations that outline the process that is going to be followed to arrive at a reasonable price in violation of the Fifth Amendment, Rodríguez explained to commissioners.

Certain “well-connected” people with land along the Rio Grande are exempted from fence construction, Rodríguez said. He cited the Hunt family which owns land used to develop the Sharyland Plantation in Hidalgo County. The fact that some people are being treated differently is a violation of the 14th Amendment of the Equal Protection Clause, Rodríguez said.

“The lawsuits, although they are a bit different, are essentially about the same thing which is that we expect that the rights of the citizens in our communities along the border be respected and honored just as they would be in any part of the country,” said El Paso County commissioner Veronica Escobar.

“It's not about a wall or fence, or whether you agree with it or not, it's essentially about whether we believe that we have an obligation to protect the rights of our citizens in our community. I believe we do.”

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