When the Bureau of Land Management moved to take control of privately owned land along the Red River several years ago, Texas’s political leaders called it an “unconscionable” overreach of federal power, and pledged to protect private landowners, actively supporting Texans who were challenging the land grab in court. But those same politicians have mostly remained silent as the federal government appears to make a similar move in the Rio Grande Valley, where Texans could soon be forced to give up their land so President Donald Trump’s border wall can be built.
Earlier this week, the Department of Homeland Security sent an email to lawmakers, a heads-up that the feds will soon be reaching out to landowners in the Rio Grande Valley to conduct “Rights of Entry for Survey” in preparation for building a border wall. “[U.S. Customs and Border Patrol] is specifically requesting a ROE-S [Rights of Entry for Survey] that will authorize entry upon landowners’ property to conduct environmental assessments, property surveys, appraisals and any other such work which may be necessary and incidental to the government’s assessment of the property for possible future acquisition,” the email stated, according to the McAllen Monitor. “This due diligence is necessary prior to acquiring property for construction and future maintenance and repair of border barrier and other supporting infrastructure, such as roads, gates, lighting and technology.”
Border residents and some elected officials representing districts that include the Rio Grande Valley have long held concerns that private landowners may have to give up their land for the wall. It’s happened here before. The federal use of eminent domain along the border is not unique to the Trump administration—between 2006 and 2008, DHS filed more than 360 eminent domain lawsuits against property owners at the U.S.-Mexico border as it built a fence through their land, subjecting landowners to lengthy court battles with high legal fees. According to ProPublica and the Texas Tribune, some property owners couldn’t afford proper legal representation, and they walked away from their land after agreeing to shortchanged deals.
In October, Democratic U.S. Representative Beto O’Rourke, of El Paso, introduced legislation that would have prevented the federal government from using eminent domain “to acquire land for the purpose of constructing a wall, or other physical barrier, along the international border between the United States and Mexico.” The legislation was co-sponsored by nine other Democrats—including Filemon Vela of Brownsville, Vicente Gonzalez of McAllen, and Henry Cuellar of Laredo—but it went nowhere. Many border landowners may once again be in the federal government’s crosshairs, with little or no recourse.
U.S. Representative Will Hurd, a Republican whose district includes 800 miles of the U.S.-Mexico border, has spoken out against the prospect of using eminent domain to build a wall, too. “Property rights are important to all Americans—especially Texans—and most of the property along our border has been privately held for generations,” Hurd told The Atlantic in an email last year. “Many Texans I speak to think there are better ways to achieve border security without taking their lands, so you can expect a lengthy and expensive fight from these folks.”
The sanctity of land ownership is not lost on the state’s most powerful politicians, either. Governor Greg Abbott, Attorney General Ken Paxton, and Senators Ted Cruz and John Cornyn have all gone to bat for private property owners in Texas facing federal land grabs before. When the federal Bureau of Land Management under the Obama administration began surveying land along the Red River in 2009, claiming a nearly century-old Supreme Court decision allowed the federal government control of the land, Abbott, Paxton, Cruz, and Cornyn sprung into action to fight on behalf of the families that had lived on that land for generations. They became deeply involved in a long and drawn-out legal battle.
In 2015, Abbott sent a letter to the Bureau of Land Management, calling on the agency to “end this unconscionable land grab.” Paxton applauded landowners for fighting the federal government, and he quickly filed an amicus brief on their behalf, saying that “the borders of any state are a fundamental expression of its sovereignty, and are established through extensive surveys and legal precedent. We will not allow the federal government to arbitrarily infringe upon Texas land and undermine the private property rights of our citizens.” In 2014, Cruz and Cornyn attempted to pass legislation that would protect landowners along the Red River from the BLM. “The Right to property is one of the most basic rights of Americans, and it has empowered pioneers to create opportunity and fuel commerce since the founding of our nation,” Cruz said at the time. “It is imperative that we protect landowners from federal overreach.” Cornyn was similarly vigilant for landowners. “Texas families who have lived along the river for generations deserve to know they’re protected from a federal land grab,” he said in 2014. The landowners settled their lawsuit in November, with BLM agreeing to specify land boundaries and roll back their surveying efforts. Abbott, Paxton, Cruz, and Cornyn called the outcome a victory for Texas landowners. “For years, we have fought to reinstate the rights of private landowners along the Red River, and I am glad that their rights have finally been recognized following this prolonged legal battle,” Cruz said in a statement.
But now that a similar dispute is brewing on the opposite border, their positions on private land ownership appear to have softened. There are a few obvious differences between the Red River dispute and the impending Rio Grande controversy: this latest federal land grab is being conducted by a Republican presidential administration; it’s necessary for a border wall project that remains popular among a conservative base shared by all four politicians; and it primarily affects a part of the state that leans blue, whereas the Red River land grab mostly affected ranchers in North Texas, who are generally conservative.
A spokeswoman for Cruz said he has worked to strengthen border security while maintaining the private property rights of landowners there, but she didn’t say whether he’d support them should they take legal action against the federal government. Paxton’s spokesman said he’s fine with the use of eminent domain on the border, as long as it’s done legally. Spokespeople for Cornyn and Abbott did not respond to our requests to speak on this issue.
Their past statements may also give a sense of how they feel about Texans being forced to give up their land in the name of border security. During his ill-fated presidential campaign, Cruz slammed Trump for often using eminent domain throughout his real estate career. However, Cruz has also expressed his support for its use for the purpose of oil pipeline construction and border security. In 2012, Cruz said that “the Constitution… provides that property can be taken with due process of law and just compensation, and with respect to securing the borders, it is a national security issue.” When asked if he still holds that view today, Cruz’s spokeswoman Catherine Frazier said “yes, but there’s more to it than that.” She said Cruz has discussed the issue in congressional hearings before, but her office could not find specific examples.
“Private property rights are, and should be, a priority in securing our Southern border,” Frazier said in an email. “Senator Cruz has emphasized both the importance of the government respecting private property rights and securing our borders since his time as Solicitor General of Texas, and he has introduced bills both protecting Texans’ property rights and our borders. Senator Cruz has met with both border patrol and landowners, and all agree that we can both have a secured border and ensure private owners get to keep and access their land.”
Cornyn’s position on the border wall has been somewhat unclear. As early as 2007, he had expressed concern about the impact that construction on a border wall or fence would have on private property owners in Texas. “I noticed most of the property abutting the Rio Grande River is private property,” Cornyn said before Congress. “I am not sure the Border Patrol or the Department of Homeland Security has really thought through the fencing idea and what it would mean to condemn through eminent domain proceedings private property along the border in Texas. I am informed that in Arizona and other places, much of the property along the border is already owned by the Federal Government, so we don’t have that issue. But I have found in Texas, this is a controversial issue.” In February, a spokesman for Cornyn told the Wall Street Journal that the senator’s approach will be “to defer to DHS on the specific strategy and that the security situation on the border is different than it was in 2007.”
Marc Rylander, a spokesman for Paxton, said in an email that the circumstances of the border wall land acquisition “seem to differ” from the Red River dispute. “The federal government appears to be cooperatively working with landowners and taking the necessary steps to continue securing our national borders,” Rylander said. “When the federal government does not follow the proper legal process and overreaches instead by taking what does not belong to it, our agency’s obligation is to defend property rights of Texas and Texans, just as we did when the Obama Administration illegally tried to claim for itself property owned by Texas and Texans. When the rule of law is followed, our office has no need to intervene.” Last year, Paxton told the Dallas Morning News that as long as the landowners are paid fairly, using eminent domain for the wall is “a public purpose providing safety to people not only along the border, but to the entire nation.”
If the Trump administration does ultimately use eminent domain to take privately owned land along the Rio Grande, expect a long legal battle similar to what we saw with the Red River dispute. Should Texans living in the path of the wall have to fight for their land, it looks as though they’ll have to do it without the support of their most powerful elected officials in Texas.