Border Patrol Taking Land Through Eminent Domain for Border Surveillance

This report from KGUN9 On Your Side summarizes what is happening. I have extensive experience opposing the Border Patrol using eminent domain for the border fence and other surveillance activities. The most important issue in these cases is often severance damages, or the loss in value of the property the owner retains after a portion of their property is turned into a security outpost. The property devaluation is similar to that experienced by those who have a prison sited near their property.  

ADOT Generating Arizona-Sonora Border Master Plan

ADOT has been working on a “Arizona-Sonora Border Master Plan” that will impact property owners along the entire Arizona-Mexico Border.

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Border property owners face unique land use challenges. The small amount of private property ownership along the border means that most policies formulated on the state level by the Department of Transportation do not take into account the needs of private landowners. In recent years, the Border Patrol has increasingly viewed all land along the border as public lands subject to constant intrusion if needed to support the Border Patrol’s mission.

ADOT is attempting, admirably, to generate a plan to address cross-border traffic in a systematic way that implements solutions in Arizona that take into account the Mexican government’s plans. This way, ADOT plans to deliver infrastructure that complements the capacity and design of infrastructure south of the border.

Those southern Arizona communities that will be most affected by the new Master Plan will be those that currently have a land port-of-entry, or LPOE. The LPOEs that currently exist in Arizona are in Nogales (two), Douglas, Lukeville, Naco, San Luis (two), and Sasabe. The boldest new improvement proposed in the Master Plan is a new LPOE east of Nogales.

Border Property Owners Could Have Valuable Inverse Condemnation Claims Against the Border Patrol

There is an update to this post here. 

The United States Court of Appeals, Federal Circuit, determined in 2012 that the Border Patrol's placement of underground sensors on private San Diego property to track cross-border traffic was a permanent physical taking. This is an example of how property owners can use an inverse condemnation lawsuit to enforce their rights under the Fifth Amendment to the United States Constitution. 

The men and women of the United States Border Patrol have a difficult job to do. However, government agencies are not permitted to perform their jobs in a way that ignores basic civil liberties like the Fifth Amendment protection against taking of property without just compensation. The Court of Appeals determined that the placement of the underground sensors was, indeed, a taking.

It is important to note that, seemingly paradoxically, the Border Patrol wanted the Court to determine the taking was permanent rather than temporary because the amount of damages for which the Border Patrol was liable was less if the taking were permanent. However, the lesson of the Otay Mesa case is that physically invasive Border Patrol activities can constitute a taking for which property owners are owed compensation. If you believe the Border Patrol has physically invaded your property without compensating you, I can help you evaluate your possible claims.