Joe Palazzolo/The Wall Street Journal – President Donald Trump wants to hire 20 lawyers to work on obtaining the land needed to build a wall along the Southwest border. He may need more.
The project will require a staggering amount of paperwork and research, eminent domain lawyers said. Moreover, uncooperative landowners could make the job difficult for government attorneys, slowing the president’s signature project, they said.
Mr. Trump’s 2018 budget request to Congress asks for the 20 additional Justice Department attorneys to “pursue federal efforts to obtain land and holdings necessary to secure the Southwest border.”
About 67% of the 2,000 miles of the U.S. border with Mexico represent private or state-owned land, most of it in Texas, according to the Government Accountability Office.
The federal government may take private land for public uses, but the Fifth Amendment to the Constitution mandates that property owners receive “just compensation.” Eminent domain lawyers said the government would have little trouble demonstrating public use in this case, but that is only one step in a process that can take years.
“Governments using eminent domain consistently underestimate how difficult it is to condemn property,” said Robert McNamara, senior attorney at the Institute for Justice, a libertarian group that represents property owners in eminent-domain cases.
Usually, the government negotiates with property owners before filing a case for their land. It could take months or even years for the Trump administration to bargain individually with the hundreds of private landowners along the border. Government lawyers sometimes must go to court just to gain access to property for appraisals, said Mr. McNamara.
The border fence authorized by Congress a decade ago was delayed because of problems acquiring land, the inspector general of the Department of Homeland Security said in a 2009 report. One landowner in New Mexico refused to give up his property, leaving a 1.2 mile gap in the fence for a time, though the agency later acquired the land through a settlement, the report said.
Customs and Border Protection set a goal of erecting 90% to 95% of the 670 miles of planned fencing by the end of 2008, according to the inspector general report. But the agency completed only half by then, attributing the delay to opposition from land owners.
Then-President Barack Obama pronounced the fence basically complete in 2011, though Republicans said that more double-fencing was needed. All told, the government sought 45 linear miles of land, using court orders and negotiations to acquire more than 480 properties from their owners. The government had to condemn hundreds more properties whose ownership couldn’t be established.
“Acquiring real property from non-federal owners is a costly, time-consuming process,” the report said.
When the government files an action in court seeking private property for public uses, it must notify anyone with an interest in the land, including banks or others with a lien against the property as well as easement holders. The Trump administration will have to identify and serve thousands of people with legal notices and enlist experts to estimate the value of each parcel, said Alan Ackerman, an eminent-domain lawyer in Michigan who represents landowners.
“It’s gonna take a force to get this done for all the paperwork they’ve got to file,” he said.
Property owners can file their own appraisals if they disagree with the government’s estimate, but they have to pay their own legal and expert fees. In such situations they often band together to oppose the government’s plans and to pool the fees. Property owners along the border who resist could find allies in their state governments.
Democratic state lawmakers in New Mexico have proposed legislation that would bar the federal government from acquiring land to build the border wall. In California, Lt. Gov. Gavin Newsom, also a Democrat, has discussed using state and federal environmental laws to fight the wall’s construction in his state.
Mr. Ackerman, managing partner of Ackerman Ackerman & Dynkowski PC in Bloomfield Hills, Mich., predicted that the U.S. government would file mass cases that each include hundreds of properties to be condemned. Federal judges in the past have appointed commissioners to oversee disputes over compensation for land, another likelihood in a project of the size, he said.
Courts can approve the transfer of land to the government even as the parties fight over compensation, but it could take years for the administration to gather all the land, said Mr. McNamara.
“Eminent domain is incredibly difficult,” he said.