Is the Trump Wall a Valid Use of Eminent Domain?
It’s possible to contest the government’s right to take, but it’s seldom a winner.
When I was an active judge, I heard a lot of eminent domain cases. I had never tried one when I was a practicing lawyer and eminent domain is a splendid example of a remark that knocks the socks off voters but is absolutely true: when evaluating a candidate for the bench, keep in mind that the judge does not have to know the law.
Lawyers know what I mean, but these remarks are not for lawyers. A judge needs to know a lot about procedure and about evidence, because those calls have to be made on the fly. There is more time for decisions about law.
A judge has to be reasonably smart and not lazy. Learning the law you don’t know coming into the case is something you accomplish in a good law library and it’s the job of the trial lawyers to suggest where you start digging in the moving target of our common law system. If a lawyer misdirects a judge in a brief, and the judge is diligent, there will be more harm to the lawyer’s reputation (read: ability to practice law in a cost-effective manner) than to the case in which the misleading brief was filed.
A PERSONAL PRIVILEGE DIGRESSION ON LAWYERS AND HONESTY. I am not saying there are no dishonest lawyers, but it’s hard to see how a dishonest lawyer can make a living. Every judge I know has in his or her head a short list of lawyers who can’t be trusted and therefore must be forced to “work to the rules.” They have to show face to get things done honest lawyers might accomplish with a phone call. They have to put things in writing honest lawyers might do verbally. The myth — and it is a myth — of general dishonesty in the profession comes from the obligation to zealously advocate for a client regardless of your personal opinion of either the client or her case. That is, you may be required to argue for positions you do not believe because everyone has a right to go to court and have the best possible argument put forward on their behalf. Even when the best argument is transparently wrong.
My first eminent domain case was worth approximately five million dollars, which is a number with a lot more zeros than this country boy is used to. Everything I knew about eminent domain law could fit in one sentence:
The government has the authority to take private property for a public purpose but must pay fair compensation to the owner.
This basic rule of eminent domain law intersects with a lot of emotional attachment to real estate and the cultural matrix of the Texas borderlands to explain why Donald John Trump’s wall is not going to rise in the Rio Grande Valley before the 2020 election and for some tracts the 2024 election will be touch and go.
Land titles in Texas trace back to grants from the King of Spain, through the proverbial “six flags over Texas.” Besides Spain there was:
France 1685–1690, Mexico in many internal divisions — the big one coming in 1835 when the Department of Coahuila y Tejas was split — leading a year later to the decade of the República de Tejas 1836–1846. The United States annexed the Republic of Texas in 1846 subject to border disputes that touched off the Mexican War, ended by the 1848 Treaty of Guadalupe Hidalgo, which settled the Texas-Mexico border at the Rio Grande and left Texas under the Stars and Stripes but for the interregnum of the Confederate States of America 1861–1865. The primary contribution of Texas to the Civil War was a lively smuggling trade of cotton across the Rio Grande.
For purposes of discussing Mr. Trump’s project, many families own remnants of Spanish land grants and many others can count back flags short of the six to the Spanish but still generations back. Also, families were split when the Rio Grande became the recognized border. Of course, families would also have been split if the Mexicans had their way and the border had been settled at the Rio Nueces. This is land that — without substantial irrigation — is for cattle ranching, not row crops.
The U.S. side of the Rio Grande has substantial irrigation for growing endless rows of lettuce and melons. Adding to the resulting chemical runoff, the Mexican side dumps substantially under treated sewage and waste from the maquiladoras. Mr. Trump once cracked wise about deterring immigrants with alligators in the river. He assumed that alligators could survive the water.
Many people along the border have generations of attachment to their land. Others would lose the effective use of their land because the wall has to be built far enough from the north bank to remain standing when there is major rain in New Mexico. As a result, U.S. land that needed little irrigation because of proximity to the river is on the Mexican side of the Trump Wall.
There is a way that the government can take possession of the land and start the project before the fair value is determined. The first part of the eminent domain process is an administrative hearing in front of special commissioners tasked to determine the value of what is being taken. This is only the economic value; emotional attachment over generations does not count.
When the special commissioners determine a value, all the government has to do is pay that amount into the registry of the court and the project can move forward while the litigation goes on over the fair value. In most eminent domain cases, fair value is the only issue — but, in theory, there is another.
What is a “public purpose?” The Trump Wall makes me wonder if there is some project so crackpot that a jury would not find a public purpose and therefore there would be no right to take? I doubt it. I let that issue go to the jury one time.
Travis County, Texas was exercising eminent domain to expand Wild Basin Wilderness Preserve. Because one of the primary reasons for Wild Basin is to protect habitat for endangered species — principally two birds that are the bane of real estate developments in the Texas Hill Country, the yellow-cheeked warbler and the black-capped vireo — the activities humans can do are limited. No picnics because the wildlife should not get accustomed to food scraps, no pets because they might molest the wildlife, etc.
When I tried the Wild Basin case, the landowner took the position that setting aside land to be kept pristine on the off chance that endangered species may take up residence is not a valid public purpose. Cross-examination of the park manager went:
Can you hike? Only on designated trails.
Can you camp? No.
Swim? No.
Play ball? No.
And so forth.
The government has the burden of proving the right to take; the landowner has the burden of proving fair value, having already turned down the commissioners’ award.
My choice at the end of the evidence was to hold as a matter of law that wilderness preservation is a valid public purpose and just let the jury decide fair value or to submit both questions.
A judge’s opinion of wilderness preservation would be a ripe issue to appeal to the Texas appellate courts, where the justices are virtually all Republicans hostile to eminent domain. But it would be much harder to get a jury verdict overturned, so — over the county’s objections — I submitted right to take to the jury, which upheld wilderness preservation as a public purpose.
Landowners in the Rio Grande Valley are, to put it mildly, hostile to the Trump Wall. They see their farms being destroyed to no public purpose, because the wall is not likely to slow down unlawful crossings. You hear wisecracks about whether Mr. Trump owns a business in Mexico that makes ladders.
On a more serious note, there have been allegations that Mr. Trump has involved himself in the contract letting on behalf of Fisher Sand & Gravel, a North Dakota company that got Mr. Trump’s attention by lobbying on behalf of his wall. Faults in the building or contracting, however, are not relevant to whether the wall is a valid public purpose.
I expect you might get a Rio Grande Valley jury to nix the wall, but the POTUS has too much authority over relations with other countries for the courts to get involved. I assume, of course, that a federal project proceeds the same way as a state project when taking private land. If not, I’ve proved the point that a judge often does not know the law until a case requires knowing it.
As a voter, I believe the wall is as stupid a waste of money as I’ve ever seen. As a judge, I would have to hold that the government has the authority to build the stupid thing and therefore the authority to take private land for the purpose.
Mr. Trump’s litigation over producing documents is not going to win, but he is not in it to win — just to run out the election clock. The landowners standing in the way of the Trump Wall are not going to win, either. But if they run out the election clock, the stupid wall might go away before their property is carved up.
