More than six months after President Joe Biden paused construction on the border wall, whether or not the government will drop lawsuits against Rio Grande Valley landowners remains a mystery.
During a hearing on Wednesday morning, Assistant U.S. Attorney John A. Smith III told U.S. District Judge Randy Crane the government wanted to conduct a “more robust environmental study” before making a decision.
Questions about returning property to landowners and building gates in the existing border wall also remain unresolved.
“So I understand the court’s frustration,” Smith said. “We kind of have the same frustration of: What are we doing with these cases?”
On Jan. 20 — the day he took office — Biden directed the U.S. Department of Homeland Security to pause construction on the border wall.
The White House published a detailed plan in June, which included a summary of how the government would handle land condemnation lawsuits.
“DHS will also review the status of all pending border wall land eminent domain actions and reassess the extent to which land acquired in prior years remains necessary after environmental planning activities have been completed,” according to a statement published by the White House. “If DHS determines use of the land will be necessary, particularly for life, safety, environmental, or other remediation work, it will initiate robust landowner engagement. If DHS determines it no longer requires the use of such land, it will work to return the land to its prior owners.”
Many condemnation lawsuits remain in the preliminary stages and would be relatively easy to dismiss. The government didn’t make a deposit to compensate the landowner, take possession of the property or start construction.
Smith said he asked “the upper echelons” how to proceed but never received a response.
“I was hoping to have a response — and everybody thought I was going to have a response — because we have nine cases on today’s docket that are no-deposit cases,” Smith said. “Unfortunately, I have no decision.”
Setting a deadline might force the government to make a decision, Smith said. In another case, a judge required the government to either make a deposit or dismiss the case within 30 days.
Crane, though, said he worried a tight deadline would short-circuit the review process and place landowners in a bind.
In situations where members of a family inherited land and ownership isn’t clear, a deposit could make returning the land — a process called revestment — more difficult.
“Many of these cases have multiple landowners. And if only one landowner says ‘No, I don’t want revestment’ and everybody else does, then we’re stuck with the case,” Smith said. “Whereas, at the stage that we’re in, if it’s decided not to go forward on the property, we can dismiss and it’s not a problem.”
In cases where the government already made a deposit, landowners may be out of luck.
“We’ve been drug along like all these other landowners have, being told that revestment was going to be an option. And then, very recently, it appears that the administration is reversing course and now telling the landowners that revestment is not going to be an option,” said attorney Daniel Koeneke of McAllen, who represents a Starr County landowner in a case where the government paid a deposit. “And so, if anything, some clarification — I know we all want clarification — but some clarification on moving forward would be extremely helpful.”
To provide the government with more time to make a decision, Crane paused 13 border wall cases until January 2022.
In nine cases, the government hadn’t paid a deposit. In two cases, the government had already paid a deposit but the landowner wanted to keep the property. Two other cases involved concerns about gates that hadn’t been resolved.
“If there’s some guidance before then, you can advise the court and we can set them all for a status conference. This way, I feel like the landowner is protected. We don’t have the revestment issue that could be a big problem if there’s a deposit made,” Crane said. “We could just end up dismissing all these cases at some point, which would be, I guess, the best possible scenario for the landowners.”