The Expropriator-in-Chief is at it again.
Posted on July 10, 2018
Six miles from the dusty caliche road that leads to Tony Zavaleta’s land, fencing to secure the U.S border comes to an end.
The 18-foot-tall barrier that meanders near the Rio Grande outside Brownsville comes to a stop where the river takes a hard bend before it flows onward toward Zavaleta’s property and the Gulf of Mexico.
The rust-colored fence has been there less than 10 years. The land has been in Zavaleta's family since the days when Spain ruled Texas.
At the entrance, a sign made from an old door hangs from a beam atop 20-foot timbers. It reads “Historic Palmito Ranch.”
What used to be thousands of acres has dwindled to 20. It has no cattle and no crops. But the land still stretches to the edge of the United States. A dirt trail cuts through the brush, sloping down to the river.
That means that the United States, if it really builds a wall across the southern border, will do one of two things. Zavaleta knows this.
“The question is: Do they run the fence through the middle of my property?" he says. "Or do they run the fence back toward the highway so I can’t get to it without going through a locked gate?”
It's the same question thousands of others in south Texas have contemplated for a decade.
The border fence conceived during the George W. Bush administration became a reality in bits and pieces along the Rio Grande here.
Fences were built sometimes on seized properties, sometimes on federally owned land. Along the river, or sometimes as much as a mile inland from it, brown steel bollards cut through fields and rise from river levees. But the fences come with giant gaps, too.
The promise of a border wall from President Donald Trump has renewed concerns for south Texans whose private-property lines end at the banks of the Rio Grande.
Regardless of whether the new administration seeks to simply close the gaps in existing fences or build a whole new wall, some believe the wall will leave them cut off. They'll be on the opposite side from friends, neighbors, the rest of the United States.
Some fear even worse. They look at where they fall on a map, trace a straight line along the top edge of a twisting river border, and believe a wall will slice right through their homes or businesses, effectively wiping them off that map.
In Texas, that's personal.
More than a decade ago, then-Gov. Rick Perry laid out an ambitious plan to sweep up hundreds of thousands of acres of private land to build a wide superhighway, rail line and utility corridor from Oklahoma to the Mexican border.
The idea might have been cheered in a traffic-choked region. Instead, the outcry from property owners who feared their land would be seized, or that a portion of a farm, for example, would be cut off from the rest, became one of the biggest controversies of Perry's tenure. The state backtracked on the plan, most of which never became reality.
Texas is steeped in the tradition of private-property rights.
The sprawling states of the West generally contain huge swaths of federal land. Some are more than half federally owned. But hulking Texas contains almost no federally owned property, a legacy of when the Republic of Texas joined the union.
Today, Texas laws build up protections around property owners, especially homeowners. One law allows people to get a break on their property taxes if the property is their home. Another "homestead" law protects homeowners from having property taken by creditors.
Texas also protects property owners' rights to use their land as they wish. When the new process known as fracking opened up a wave of natural-gas drilling across Texas, oil and gas wells began to pop up in residential neighborhoods. Fueled by worried homeowners and environmental concerns, some Texas cities implemented rules limiting the wells. The state legislature responded by making it illegal for cities to do anything to stop a property owner from drilling.
But when it comes to border security, there's a different force in play.
"If they want it, they're going to take it," says Billy Dyer, a Houston lawyer who handles eminent domain cases. "The statute that authorized the acquisitions for the border wall is all based on national security."
There is no border-wall construction underway, at least not yet. There's not even technically any border-wall plan. But that hasn't stopped a new round of protest and speculation.
In June, the federal government began publishing “Notice of Condemnation” sections in south Texas newspapers, touching off speculation that efforts were ramping up to secure more land for Trump’s wall. The U.S. Justice Department says the notices are an effort to find the scores of unaccounted-for property owners or their heirs so that existing condemnation cases can move forward. They are not notices of new claims on private property, officials say.
Then, in August, environmentalists began circulating a map that showed a possible path of a wall, or an extension of current fencing. The map, labeled "pre-decisional," laid out a 60-mile route for a barrier that would close some existing gaps in the border fence but build intermittent segments, adding new gaps. Federal officials said the route was only a consideration.
Activists responded with outrage. They held a march in the city of Mission to oppose a possible wall on a levee that would leave a historic church in no-man's land, cut off by the wall. Then they staged a protest hike at the Santa Ana National Wildlife Refuge, saying a wall there would become a trap for animals who couldn't escape rising floodwaters and would cut off endangered ocelots from natural habitat.
Perhaps more so than the effects on historical sites or species, it's the idea of what a wall will do to homes that bothers people most.
Aleida Flores Garcia lives in Los Ebanos, near a twisty segment of the Rio Grande. From her home on Heriberto Garza Street, heading straight to Mexico means heading north.
"I was born here, my dad was born here, my ancestors were born here,” says Flores Garcia, holding a hand over her heart. "We are American. Why can't they take that into consideration?"
By "they," she means the federal government. She believes efforts are underway, or perhaps will be soon, to carve away this slice of land in the river bend where her family has been for five generations now. Her great-great-grandfather Manuel Flores built the home after serving in World War II.
Over the years, the property endured hurricanes and other natural disasters. That includes a 2010 flood that forced Flores Garcia and thousands of others who live along the Rio Grande to evacuate.
"We had to stay in our family's store in Cuevitas for two weeks while that was going on," Flores Garcia says. "There was nowhere else to go."
The house remained standing.
Now, she finds dark humor in the idea that the thing that could ultimately doom her family's home could be man-made.
"A wall here isn't going to be a good service to anybody,” Flores Garcia says.
The Census Bureau describes Los Ebanos as a census-designated place — not a town — with 147 homes and 335 residents, nearly a quarter of whom live below the poverty line.
It's also home to the Los Ebanos ferry, an old-style hand-drawn ferry that shuttles cars on a barge that follows a rope line to the Mexican city of Gustavo Díaz Ordaz.
While there are other ways to enter Mexico from here, the ferry remains a busy and popular draw. It’s a novelty, a reminder of a time when tensions over border security and illegal immigration didn’t run so hot.
Flores Garcia is preparing to fight the government over her family's land — for what would be a second time.
For more than three years, Flores Garcia battled the federal government, which served notice it wanted her home and land to make way for the border fence. The offer was $8,300.
She turned it down.
“I couldn’t believe it,” she says. “This is my home. The experiences and memories alone aren’t even worth that.”
A judge signed an order on Dec. 3, 2011, nullifying condemnation of her property. But she remains concerned she may get another letter from the government soon.
If that happens, "I'm going to keep fighting. You're supposed to fight for your home," Flores Garcia says. "It's just too bad that we have to keep on fighting all the time."
As federal officials looked to fulfill the mandate of the Secure Fence Act after 2006, they began filing cases in court to seize property from landowners along the river. In all, the number of cases in federal court now numbers almost 330, even after many were combined.
Flores Garcia's case may be the only one that was officially voided by the U.S. district court. But even now, almost a decade after the first filings, more than 80 of those cases remain unresolved.
Of those that were settled, payouts for land ranged from as little as a $100 easement to, in one case, nearly $5 million.
Extending the fence or building a wall could bring a new round of court fights. And while there's no known path for the wall, sealing the entire Texas border could require seizing property on an untold scale. A USA TODAY NETWORK analysis of property records of the entire Texas line shows almost 5,000 parcels of land sit within 500 feet of the border. Building a wall there could affect almost all of them.
How a wall in Texas could affect private property
In Arizona, New Mexico and California, the federal government controls a 60-foot strip of land at the border. Not so in Texas, where almost all property is private.
Counties that touch the southern border.
Approximate number of parcels that could be seized or affected if a wall were built within 500 feet of the border.
Early in the 21st century, a group led by south Texas developer Rollins Koppel envisioned a 420-acre riverfront tract as a destination for shops and waterside restaurants in Brownsville.
By 2008, the project had secured the promise of tax incentives from the city and some of the early work on running streets and utilities was in place. But when the Department of Homeland Security decided it would need a narrow sliver a few hundred yards from the Rio Grande for the fence, the development project tanked.
Within a year, the offer of tax breaks was rescinded, and Koppel was not at all happy with the $233,000 offered by the government for what amounted to be about 6 acres a couple of hundred yards from the river.
“Once the federal government decided to build the wall that would sever the view of the river from the rest of the development, it killed the project,” says Billy Dyer, the Houston lawyer, who represented Koppel when he went to court to ask the government to pay $10 million. The fence devalued the rest of the acreage by laying to waste the development project, they argued. The government contended that it should pay for only the value of the land it had taken for the fence project.
As the two sides battled over money, construction on the site began — not for an upscale development, but for a fence.
“It was the government’s position that once they filed a declaration of taking, the land was theirs,” Dyer says.
For three years, lawyers for Koppel and for the government filed hundreds of documents with the court, arguing over matters ranging from the actual value of the dirt beneath the fence to how high the profits would had been if the development had been allowed to proceed.
Dyer says the matter was headed for trial, but U.S. District Judge Andrew encouraged the warring sides to find common ground. In October 2011, Hanen signed off on a settlement that awarded Koppel $4.995 million.
“The irony is that if the development had gone in, there’d be no need for a fence on that property,” Dyer says. “When someone crosses the river from Mexico, they’re looking for dark places to hide. That development would have been lit up like a Christmas tree.”
There are places along the existing fence where residents have to open a locked gate to get through to their property on the other side.
Lloyd Burns worries he'll be one of the next ones. Burns and his wife, Wendi, manage an RV park in Mission, a patch of land known as Chimney Park. As he talks, a breeze drifts in off the Rio Grande, cutting the early morning's 88-degree heat.
"People love this place," says Burns. "This is why they come here. For this."
Chimney Park is particularly popular with "Winter Texans" — Northerners and Easterners who live in Texas part-time to escape from their cold hometowns. For $2,486, you can rent a plot on the banks of the Rio Grande for six months. Somewhere just inland of those banks, Burns figures, the wall would be built.
“If that wall is built … it would kill this park,” he says.
Sixty miles downriver, Jeremy Barnard has a similar view. He, his father and uncle manage the neatly manicured 319-acre River Bend Resort & Golf Club.
The club straddles a levee system that was constructed to block rising river water or act as a buffer in the event of a hurricane or other natural disaster. There's already border fencing running along the same levee system nearby.
"We're a gap in it," Barnard says.
"Fifteen of our 18 holes would all be south" of the wall, says Barnard, whose farming family purchased the property in 2015. "A lot of the land would be cut off."
All that advocacy, and Texas' private-property tradition, collides head-on with another reality. Lots of people in south Texas say they're in favor of more border security.
Rancher Susan Kibbe, executive director of the South Texans’ Property Owners Association, says her organization has long demanded that the federal government move aggressively to control illegal immigration.
She says farmers and ranchers are under siege from smugglers who drop off migrants on their land, which leads to damaged fences and buildings and even lost livestock.
“They break into camp houses and leave behind all sorts of trash,” Kibbe says.
The association favors “the right type and amount of border fencing” for which landowners must be property compensated, she says.
“They don’t want eminent domain to be shoved down their throats,” Kibbe says. “They just want to be treated fairly.”
Of the dozens of condemnation cases filed under the Secure Fence Act that still sit dormant, some property owners wonder if their day in court is coming. Jesus “Chuy” Alvarez, a south Texas lawyer, represents several landowners in Starr County, about 100 miles upriver from the Gulf Coast.
That concern continues to increase, Alvarez says, as news outlets nationwide bathe attention on what are normally obscure border communities along the Rio Grande. He has a joke ready, riffing on Trump's speech: “You know what? We’re gonna build a wall and make the news media pay for it.”
“These cases are still open because the feds haven’t done anything to close them,” he says. “Whether they will or not, we’ll have to wait and see.”
The reality of the fence, in the meantime, has become a part of the fabric of some communities.
In Brownsville, the fence takes away river access from a downtown park and separates the University of Texas Rio Grande Valley from the waterway that gave the campus its name. In an indirect way, it won the campus something, too.
For seven years, south Texas landowner Eloisa Tamez battled the government over the value of a narrow strip for the fence that would divide her property in half. The legal process brought her waves of national attention, from which she’s grown weary.
The fight, she says, was not about the money. “It was about standing up for what is right.”
When the case was finally settled, she donated a portion of her $56,000 award to establish a scholarship at UT-Rio Grande Valley, where she is a nursing professor.
Back at Zavaleta's Historic Palmito Ranch, history may be looping back on itself like this twisting river.
The ranch sits within viewing distance of the last skirmish of the Civil War, where Confederate soldiers from the Texas Cavalry Battalion routed the Union troops in the Battle of Palmito Ranch in May 1865, some six week after the South had surrendered, but before every Confederate fighter had finally laid down arms.
It seems people have long been fighting over this scrubby land along the Rio Grande.
Zavaleta calls handing over his property for a fence “a giant waste of money” and a loss that would be felt for generations.
But the 70-year-old retired anthropology professor understands a court fight would only delay the inevitable.
“If the federal government wants my land," he says, "they’ll take my land."