It is, lawyers and experts say, the first step in the government trying to seize private property using the power of eminent domain — a contentious step that could put a lengthy legal wrinkle into President Trump’s plans to build hundreds of miles of wall, some of which passes through land like Alvarez’s.
Previous eminent domain attempts along the Texas border have led to more than a decade of court battles, some of which date to George W. Bush’s administration and have yet to be resolved. Many landowners, like Alvarez, are vowing to fight anew.
Alvarez refused to sign over access to her property, which was handed down from her grandfather. She yelled at her father for allowing the government onto his land.
And she had a message for Trump, who visited nearby McAllen on Thursday afternoon: no border wall — a phrase she wanted to write on her roof so Trump could see it if he flew over her home. She decided against it because of rain.
“I’m against the wall because I’m going to get evicted by it,” said Alvarez, a 47-year-old high school teacher.
Efrén C. Olivares, racial and economic justice program director at the Texas Civil Rights Project, said approximately 100 landowners have received new government letters seeking access to private property for the purposes of determining how — and where — the wall could be built. The letters are the first of a two-step process the government uses in cases of eminent domain, lawyers involved in the cases and experts said.
It first requests to survey the land, a step to which landowners often agree. If the land is suitable for the government’s intended use, it moves to take the land either by persuading the owners to sell or turning to the courts to force the sale.
In one letter a resident received from the government, a copy of which was provided to The Washington Post, the landowner was asked to provide “irrevocable” entry for 18 months.
South Texas residents are familiar with this fight. When Bush signed legislation in 2006 known as the Secure Fence Act, authorizing hundreds of miles of fencing along the U.S.-Mexico border, court battles quickly began between people in the region and the government.
But much of the land the Bush administration requested was already owned by the federal government, said Gerald S. Dickinson, an assistant professor of law at the University of Pittsburgh who focuses on land use and constitutional law. The wall Trump wants to build would be different, he said.
“If it’s going to be a contiguous wall across the entire southwest border, you’re talking about a massive land seizure of private property,” he said.
Most people, he said, are not willing to voluntarily hand over their land, even with a fair market price, forcing the government to go to court to obtain it. “You’re talking about thousands and thousands of eminent domain proceedings that would have to run through federal district courts in Texas for the most part, but also places such as Arizona and New Mexico.”
Olivares said there were 334 eminent domain lawsuits filed in South Texas during the Bush administration; approximately 60 to 70 cases are still pending from a decade ago, mostly regarding payouts.
The Texas Civil Rights Project is now trying to let people know that they are not required to sign over access to their land. They are going door-to-door in some neighborhoods, letting people know their rights, and they are running digital ads and spots on local radio stations. They also plan to host town-hall-style meetings.
“If you don’t have a lawyer, you’re just going to get railroaded,” Olivares said. “We’re trying to make sure this isn’t going to happen.”
But there are hurdles to challenging the government, he said, and courts often side with federal authorities when a seizure is related to national security. One option is a jury trial, but that can take months or years to complete, and it doesn’t necessarily stop the government from taking the land, he said. When the seizure is allowed, owners can dispute the amount of money they are offered, but Olivares said the government often files a motion telling the court that it will pay whatever the court determines to be a fair amount, but they also argue that they need immediate access to the land.
The Trump administration, he said, has filed about 10 or 12 cases against landowners in South Texas asking for access to the land to conduct soil sampling and measuring.
“It’s all in anticipation of taking the land,” he said.
Trump has long defended using eminent domain claims, which he once invoked — unsuccessfully — in trying to force a New Jersey widow from her Atlantic City home, saying that “without eminent domain, you wouldn’t have any highways.”
The Atlantic City Casino Reinvestment Development Authority sent the woman a notice offering her $250,000 for her property and threatened seizure under eminent domain.
Trump was trying to build a limousine parking lot next to his Trump Plaza casino.
A New Jersey court ruled against Trump and the authority. The owner of the home later moved to California and her house was sold at auction and demolished — the empty lot sits behind the vacant shell of the shuttered Plaza.
Since taking office, Trump has continued backing eminent domain, and last week he called it “a fair process” and “very necessary.”
Federal officials would first try to make deals with landowners, Trump said, but if that doesn’t work, “we take the land, and we pay them through a court process — which goes, actually, fairly quickly. And we’re generous. But we take the land.”
The government tried to do just that after Bush signed the Secure Fence Act, and it wound up being an issue for authorities, according to a 2009 report from the Department of Homeland Security’s inspector general.
“Gaining access rights and acquiring nonfederal property has delayed the completion of fence construction and may increase the cost beyond available funding,” the watchdog wrote, describing the act of taking over property as “a costly, time-consuming process.”
U.S. Customs and Border Protection did not respond to questions about the letters sent to landowners. Landowners have received letters from both the Army Corps of Engineers and CBP.
CBP said in a letter sent to a resident that it wants access to the property to support “border infrastructure authorized by Congress in the Fiscal Year 2019 appropriation” and other projects.
Those in court fighting the government include the Catholic Diocese of Brownsville, Tex., which is contesting a request to survey land that includes La Lomita Chapel, a small church built more than 150 years ago where Mass, weddings and funerals are held and a Palm Sunday procession takes place each year.
Mary McCord, a visiting professor at Georgetown Law and a former Justice Department official now working on the diocesan case, said Bishop Daniel E. Flores believes allowing the government access to the property would be an implicit endorsement of allowing it to take the land.
That, she said, would violate his firmly held religious beliefs and Catholic doctrine. Taking the land to build a wall, McCord said, substantially burdens the exercise of religion, and the government has not articulated a compelling reason it needs to build a wall there.
A person cannot be compelled, McCord said, “to participate in something that violates their firmly held religious beliefs.”
The government filed a motion asking for the right to go on the property for up to a year to survey the land. A hearing is scheduled for February.
Alvarez also is girding for a legal battle, ready to protect what is hers and to fight against what she believes is an unfair process. She feels as though politicians in Washington don’t understand the way of life in the Rio Grande Valley, where residents cross international boundaries regularly and ride four-wheelers in the woods along the border. And she does not want to leave her home.
“I think they assume we’re ignorant. . . . They’re threatening. They say, ‘You sign, or we’ll take it away,’ ” she said. “This is my house.”