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For Sale: Border Wall. Illegally Erected.

What will become of one contentious mile of President Trump’s wall? New Mexico’s Land Commissioner has some ideas

General view of the wall that delimits the border between the United States and Mexico in a section of the community of Santa Teresa, State of Chihuahua, Mexico, 09 April 2018. A coalition of US environmental groups asked today an appeals court to block the construction of the wall with Mexico because they believe that the government of President Donald Trump has no authority to suspend environmental laws to accelerate the work.US environmentalists ask to court to block the construction of the wall, Santa Teresa, Mexico - 09 Apr 2018

General view of the wall along the border between the United States and Mexico in a section of the community of Santa Teresa, State of Chihuahua, Mexico.

Alejandro Bringas/EPA-EFE/REX/Shutterstock

The seven-acre plot lies directly west of El Paso, Texas. To drive there, you need to head north of the city, where Artcraft Road crosses the Rio Grande river, over the New Mexico state line, then head south far enough where suburbs fade into desert, fields of sage brush and yucca and, finally, the U.S.-Mexico border. At the Santa Teresa Port of Entry, hang a left onto the dirt frontage road that Border Patrol now uses, without permission. After a couple of miles you will reach parcel T29S R3E, where a decade ago Customs and Border Protection built a wall on property it did not own; land that New Mexico Land Commissioner Aubrey Dunn was, until five days ago, trying to sell to the highest bidder.

“You wanna buy it?” Dunn asks me during a visit at his office last month. “Go down there, block the Border Patrol from going across? You wanna tear the wall down?”

Dunn, a tall, hefty man who typically wears a cowboy hat, has been a banker for most of his life, although he speaks in the slow, unblinking manner of a rancher. Rocking back in his office chair, he kicks his boots up and pauses to think about this line of action against the government, then adds, “Well, they might get you for destruction of federal property.”

After Dunn offered CBP the chance to buy rights to the land this spring, which he says they turned down, he tried to force the government’s hand by auctioning it off on December 3rd — with bids starting at $40,000, or in Dunn’s words, less than the cost of a new pickup truck. But less than a week before the auction, Dunn had a change of heart, one that now makes the deal a lot more interesting — and possibly more expensive — for the government.

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This past summer, Dunn pulled out of the New Mexico U.S. Senate race to give the slot to fellow libertarian and former presidential candidate Gary Johnson, who ultimately lost to incumbent Martin Heinrich. Dunn did not run for another term as commissioner, so with a few weeks left before he boxes up the bronze cattle-drive statue on his desk in Santa Fe, he decided to cancel the sale and let his successor, Democrat Stephanie Garcia Richard, a leading voice against border walls in the state, decide the future of parcel T29s R3E.

For Dunn, the auction was not a matter of immigration policy or government overreach. His job is to get the most for the land — money that, because it’s state trust land, will go to help public schools. Garcia Richard wants to make a larger point. “This is a way for New Mexico to stick up for itself,” she tells Rolling Stone, “both monetarily, and for our social consciousness and our ability to make a statement with our land.” So now what might have been a fight over tens of thousands of dollars has become a moral issue, and one that the government might pay many times more for than what Dunn asked. Garcia Richard has not yet decided her plans for the land, but she tells Rolling Stone they include another auction, suing the federal government, or finding a private, progressive buyer who wants to stick it to the Trump administration.

Long before Dunn knew he’d be passing the fate of the mile of border wall over to Garcia Richard, she played an integral part in this story.

In March, Border Patrol held a news conference to announce the construction of President Trump’s wall, which is actually George W. Bush’s wall. Congress has approved $1.6 billion for Trump to complete what remained unfinished under the 2006 Secure Fence Act. And while the government will build about 40 miles of new wall, nearly all of it in the Texas Rio Grande Valley, the majority of the funds will update existing barriers.

Trump had promised supporters during the 2016 campaign he’d build a “big, beautiful wall,” in some places as high as 55 feet, along the entire 1,954-mile U.S.-Mexico border. Congress has denied most of his funding requests, and he has since said the border fence only needs to be between 700 and 900 miles; although, because 654 miles of fencing existed before he took office, he’s set himself a pretty low bar. Trump may still add a few miles, though, and last week he said he’d shut down the government unless Congress authorizes $5 billion more to build it.  

In New Mexico, CBP is building 20 miles of 18- to 30-foot steel bollard fence west of the Santa Teresa Port of Entry in place of a vehicle barrier — nearly all of it on state property. Garcia Richard, then a three-term state representative from Los Alamos, took notice and co-sponsored a bill earlier this year to make constructing border fence on New Mexico-owned land illegal. So Dunn dug through plat maps in his office, wondering if such a law was possible, and he learned two things. First, a 1907 proclamation from President Teddy Roosevelt created a 60-foot buffer along most of the state’s border, which meant the government had legal right to those 20 miles. Then Dunn looked east, to parcel T29S R3E. It had been granted to the state in 1898, then surveyed in 1906, meaning it narrowly preceded the buffer proclamation.

As someone who wears a Don’t Tread on Me pin on his blazer’s lapel, Dunn was unfazed by the level of government incompetence it took to build a $20 million fence on land it didn’t own. What really aggravated him was the government’s offer. Dunn’s office valued the parcel at $40,000. CBP wanted it for $8,736. After months of discussion, when CBP stopped responding to Dunn’s calls, he drove to the border and hammered in a No Trespassing sign. Then he blocked Border Patrol’s access to the frontage road with yellow caution tape. “I admit we had a little fun with it,” he says.

CBP disputes all this, saying it is not trespassing, although it would not elaborate. And when asked why it would commission an assessment and make an offer for land it had legal right to use, a spokesman wrote, “CBP values its long-term partnership with the state and appraised the land value in our attempts to work with the state on amicable resolution to their claim.”

Dunn knew eminent domain laws gave the feds the right to seize land for public use as long as it paid for it. But he was less familiar with how this works on the border. CBP’s lowball offer that started this whole fight is quite common, a tactic even, that it and its parent agency, the Department of Homeland Security, has used to seize property for the wall. But typically, the government isn’t dealing with someone who has the resources of an entire state. So it usually gets its way.  

The people most familiar with how the government seizes land live in Texas’ Rio Grande Valley, where the government has been condemning large plots near the border for a decade, and where people are still opening their mailboxes to find letters that read something like this: “The United States of America is acquiring property along its border in order to construct a fence … The purpose of this letter is to confer about the amount of just compensation … .”

One of those letters came to the Flores family eight days before Trump swore the oath of office. They own 16 acres near the border, and for 1.2 acres, the government offered just $2,900. Eminent domain allows the feds to take whatever land it wants for public use, but the Fifth Amendment requires the government to offer just compensation. Of course, that leaves a lot of legal interpretation. In most cases, like for building highways, the government must follow rules for its appraisals. The guidelines were developed to prevent the government from scamming landowners, and they require the highest and best economic value be paid for a piece of land. Meaning, along the border, if you’re a melon farmer growing crops on half your property, when the government tallies its offer, it must act as if you’re raising crops on the entire lot. But DHS has found a way around this.

You’d think that any offer would begin with an appraisal of the land’s value. DHS, however, has been using a loophole that allows it to skip an appraisal if it believes the land is worth less than $50,000. A report from ProPublica found that more than 90 percent of all seized property in the Rio Grande Valley had been valued below that magical number, allowing DHS to contract with the Army Corps of Engineers for a less rigorous assessment.

This photo provided by the New Mexico State Land Office shows New Mexico Land Commissioner Aubrey Dunn installing a sign along the U.S.-Mexico border to indicate the land belongs to the state, near Santa Teresa, N.M. New Mexico's top land manager posted signs along the U.S.-Mexico border aimed at blocking border patrol operations on a one-mile stretch of state trust land over concerns that the federal government is not compensating the state for using the landBorder Wall New Mexico, Santa Teresa, USA - 06 Mar 2018

New Mexico Land Commissioner Aubrey Dunn installs a sign along the U.S.-Mexico border to indicate the land belongs to the state, near Santa Teresa, NM. Photo credit: Kris Mcneil/AP/REX/Shutterstock

Then there’s something called thequick take” option. Even if the Flores family turned down the government’s $2,900 offer, DHS can set loose bulldozers almost immediately. “They can take your property in a day or so, as long as they’ve calculated the fair market value,” says University of Pittsburgh constitutional law professor Gerald Dickinson. Quick take allows DHS to pay a court for the land instead of the property owner, making a person’s only recourse a long, expensive fight before a judge. The entire process allows the government to pay as little as possible for seized land, Dickinson says, because it’s “well aware some parties are not able to push for a better price.”

In the Rio Grande Valley, these cases come before U.S. District Judge Andrew Hanen in Brownsville, who calls himself the “fence judge.” An NPR analysis of more than 300 of his border wall cases found they dragged on for an average of three-and-a-half years, with owners typically receiving $12,600 for their land. That’s not enough to cover legal fees, so most property owners settle. Ten years ago, Juan Cavazos, a 75-year-old retired teacher, did just that and took the government’s offer of $21,500 for his two acres. Last year he told ProPublica, bluntly, “We got screwed.”

In Texas, there is the added problem of the Rio Grande river. It enters the borderland near El Paso and does not flow in a straight line as it wends to the Gulf of Mexico. Building along the curving river would add hundreds of miles to the wall — and billions of dollars to its cost. More than that, it’s not feasible. The banks shift. The line is fluid. So the fence was not built on the actual international boundary — the river — but, in some places, several miles back, creating a kind of no-man’s-land. And that raises even more complications for landowners like Becky Jones.

Jones received her letter late last summer. Her 700-acre plot near McAllen, Texas, has been in her family since her father bought it with money from his service in World War II. The family raises cotton, vegetables and sugar cane on some of the country’s most fertile soil, thanks to the Rio Grande’s silt deposits. The new fence, part of the 33 miles Congress approved in the area, would cleave her family’s land in half, with the most productive fields and water access lying on what will be the Mexican side of the proposed border wall.

Jones is, ironically, for border protection. Not necessarily the wall. But her family has found migrants resting in their barn, and they’ve worried about the men crossing their property they believed were hauling bales of weed on their back. The Rio Grande Valley sees more illegal migration than any other sector in the country, and McAllen is where Trump kept scores of children locked in cages inside the Ursula processing center this past summer. Jones also thought it would be best to cooperate with the government, so the family signed its letter asking for access to her farm. When I spoke to her last month, Jones says that since then, she’s been told nothing about what will become of her land. No details about how her family will access water for their crops. No offer. At a local meeting, she says a Border Patrol agent said, simply, “Well, Mrs. Jones, there will be winners and losers.”

Looking for a better answer, Jones drove an hour southeast to visit the Loop family, another loser in the wall game. The Loops own 350 acres, four of which CBP needed to build its fence through the middle of their land. For this, the family was offered $10,100, a gate and an access code to reach their property now on the southern side of the wall. One night last year, their house and barn caught fire. D’Ann Loop and her husband, Ray, ran outside and listened as a fire engine drove up and down the fence, searching for a way through. The house and barn were destroyed. Six dogs, a cat, four dozen baby chicks and a miniature goat burned alive. (Their horses escaped.)

Jones arrived as the Loops were rebuilding their home. She didn’t want to bother them, so she turned back. But because she’d followed some contractors in through the gate, she didn’t have the access code. As her car idled on the other side of the wall, she says she remembers thinking, “Here I am, an American citizen, on American soil, and I’m locked out of my own country… anyone who voted for the wall needs to sit on the other side waiting for the gate code. All the congressmen — especially the ones from Texas.”

In the end, the government will get its land. Jones and others in the Rio Grande Valley who’ve found letters in their mailboxes this year will be left to fight over the government’s miserly offer. The Loop family sued for damages and rights to the land and brought their $10,100 deal up to $1.39 million. But many property owners will not have the resources for that, so they will settle.

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Like with the Loop family, people who take the feds to court usually end up with a lot more money. Terence Garrett, a professor of public affairs and security studies at the University of Texas, Rio Grande Valley, has studied eminent domain cases along the border and says when property owners sue they tend to make 1,200 percent more than what the government originally offered. “The federal government can condemn the land and take it,” he says, “but that doesn’t stop you from going back and suing. The worst thing to do is just hand it over.”

In New Mexico, the land commissioner office is considered one of the more powerful elected positions in the state. It controls 9 million acres of land, which bring in hundreds of millions of dollars each year to hospitals and schools. Plus, there’s little oversight. And now that the decision on parcel T29s R3E has passed from the hands of a money-minded libertarian to a progressive Democrat looking to make a point, this mile of border wall has become, in a way, priceless.  

Garcia Richard grew up in Silver City, which is only an hour-and-a-half drive from the border, and two-and-a-half from the Santa Teresa Port of Entry. She has lived crossing the U.S.-Mexico line, and with the people who cross it, whether legally or illegally. “This one mile stretch becomes a flash point for the broader argument and discussion in our country about migration, and immigration laws,” she says, “and the way we’re behaving toward our neighboring country.”

Considering that, Dunn’s price for the land now looks like a steal.

In This Article: Donald Trump, Mexico

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