A sixth lawsuit against the Trump administration was filed on Monday morning in District of Columbia District Court over plans to build border barriers across hundreds of miles of the Big Bend region –– this time, by a coalition of 230 landowners who face having their land seized by the government. A small crowd gathered outside the Presidio County Courthouse to mark the occasion.
“I am proud to say our efforts are working,” David Keller told a crowd of about 150 in Marfa for the press conference announcing the lawsuit. Keller, an archaeologist who works with Conserve Big Bend, the nonprofit behind the lawsuit, said months of hard work by activists fighting the border wall projects resulted in a formidable resistance to the plans.
“Landowner resistance has slowed this project to a crawl,” Keller said. “People have refused access agreements. Survey and construction schedules have fallen months behind. Contractors have been sent home. Why? Because they were woefully unprepared for the hornets’ nest they stirred up, because they had no idea how much we love this place.”
The lawsuit, filed by K & L Gates of Washington, D.C. on behalf of Conserve Big Bend, claims that families and businesses along the Rio Grande will be irreparably harmed by the border wall, and challenges the legal authority of the government to waive laws that expedite its construction. The lawsuit names Conserve Big Bend and six landowners as plaintiffs: Charles L. Cecil IV, John Ferguson, David Keller, Nadine Pineda Mata, Joe Pineda and Leo Nunez Pineda.
The government has waived dozens of laws across the Big Bend since October of last year, covering both the process of contracting with private companies and how those private companies are allowed to design and build. Three large out-of-state firms will collectively build over 165 miles of wall, 200 miles of roads and 182 miles of vehicle barriers across CBP’s Big Bend Sector, which spans about a quarter of the U.S.-Mexico border by mileage but only around 1% of illicit cross-border traffic.
Over the past few months, DHS has walked back some of its plans for the wall project on public land after public outcry, swapping 30-foot pedestrian walls for 6-foot vehicle barriers, patrol roads and sensors. Plans for a wall appear to be full steam ahead on private land, however, on swaths of the border between Hudspeth, Jeff Davis, Presidio, Brewster, Terrell and Val Verde counties, affecting over 400 estimated landowners.
The two struggles haven’t happened in a vacuum. “When this all started, a friend of mine told me, ‘‘You might save the park, but you’re all alone up there on the ranch,” Yolanda Alvarado said at a rally in Santa Elena Canyon in August. “But from day one, I haven’t felt alone.”
At the press conference, Alvarado — a fifth-generation cattle rancher — stressed how existential the threat is. “Our livelihoods and our rights are being threatened,” she said. “Currently, there’s a 30-foot bollard wall proposed to be built through my family’s ancestral land, not far from where we’re standing here today. This wall will either separate us from our family cemetery or it’ll separate us from our source of life, the river.”
Conserve Big Bend’s lawsuit argues that the government overstepped its authority in issuing the waivers in the first place, in part because the Big Bend sees so few unauthorized border crossings. That authority comes from the Illegal Immigration Reform and Immigration Responsibility Act (IRIRA) of 1996, which granted the attorney general the power to waive a handful of environmental review laws to expedite the construction of border barriers and roads. After the creation of the Department of Homeland Security under the Bush administration, that law was strengthened by the Real ID Act of 2005, which expanded the waiver authority to any law of the DHS secretary’s choosing.
Conserve Big Bend’s suit challenges the government’s description of the Big Bend Sector as an “area of high illegal entry,” a designation required to unlock the waiver authority. Their complaint argues that DHS cherry-picked data to make its case, including a statistically anomalous period of high illegal entry between 2021 and 2022. Those years were also when many migrants were also subject to Title 42, a COVID-era policy that fueled recidivism, or the same people attempting to cross over and over again.
To put the low Big Bend crossing numbers into perspective, the complaint divides CBP data over the past five years into apprehensions per mile. Big Bend has the lowest of any sector by a long shot at 5.99, with the next lowest out of the Yuma Sector in Arizona, with 61.29 per mile. The highest rate was reported in the San Diego Sector, with 831.7 apprehensions per mile.
The Big Bend waivers also include drug-crossing statistics that the complaint urges the judge to disregard: the majority of waivers issued to cover the Big Bend Sector report “87,574 pounds of marijuana, over 867 pounds of cocaine, over 1,156 pounds of methamphetamine, over 12 pounds of heroin, and over 94 pounds of fentanyl” over the past five years. But Conserve Big Bend has concerns about the government’s methodology, arguing that the data does not specify whether the drugs –– which could have been intercepted anywhere in the sector, which includes almost all of Far West Texas, the Panhandle, and the entire state of Oklahoma –– actually crossed the border. (The complaint is especially skeptical about data gathered about marijuana, which is legal to varying degrees in New Mexico and Oklahoma.)
The same law that enhanced the government’s authority also limited legal challenges to constitutional issues, which limits the scope of how local governments and individuals can fight back against the border wall in court. As recently as August, judges have found that any claim made about the potential harms against the wall –– whether it be damage from flooding or unfairness in the contracting process –– is moot if it doesn’t directly relate to an issue raised by the Constitution hundreds of years ago. This also means that if the lawsuit doesn’t succeed on its first try, plaintiffs have to cross their fingers that the Supreme Court will pick it up, something the highest court in the land has historically been hesitant to do.
Terlingua resident, Lico Miller, who owns property in Ruidosa in the path of the wall, told the conference, “Private property rights are, and have been, the bedrock of Texas sovereignty since 1836.”
“The moment we allow any government, state or federal, to come in and seize private land and tell us what is good for us and what constitutes an emergency, we set a precedent that will come back and bite every single Texan,” he said. “If they can take our land along the river today, they can come for yours tomorrow.”
The issue is urgent for many landowners, who under the federal power of eminent domain don’t have the ability to say “no.” There’s not a legal mechanism for them to fight wall construction on their property, only to negotiate a fair price in court, which can be an intimidating –– but rewarding –– process. (A study of landowners in the Rio Grande Valley during George W. Bush’s push to build a wall through Texas showed that the price paid to landowners who decided to fight condemnation proceedings in court brought payouts, on average, twelve times higher than what the government had originally offered.)
The Department of Justice appears to be ramping up for the challenge. The agency is currently hiring for assistant U.S. attorneys in the Western District of Texas, the federal court division that includes the Big Bend. “Duties will include owner and witness interviews, confirming land titles, property negotiations, and federal eminent domain litigation among other things,” the job listing reads.
This time around, the Trump administration is also rolling out a new type of agreement for landowners that expedites construction. During previous waves of wall construction, the government would make an initial agreement to enter for a survey and then would continue negotiations from there. The new “ROE-C” or “right of entry-construction” agreements allows the government to begin construction right away –– some legal advocates have argued that they’re intimidating and difficult to parse.
Laura Allen, a Republican former Val Verde county judge who had previously stressed the need to control border crossings by waves of asylum seekers, received one of these letters and felt insulted. “On our land, that proposed route will be in excess of eight miles, and we were offered an initial payment of $5,000, and we were sent an ACH transfer form so that we could accept that $5,000 when we sign that [access] document. The short answer to that is, ‘Hell no.’”
Rob D’Amico contributed to this report.
