County joins suits opposing
border fence

By Erica Molina Johnson
El Paso Times

EL PASO, Texas — A Border Patrol agent walks near the border fence in Sunland Park. The county is joining two lawsuits against the federal government regarding construction of the fence.

The federal government may be violating the Constitution as it proceeds with plans to build a fence between the United States and Mexico, the County Commissioners Court said Tuesday as it voted to join two lawsuits challenging the border fence construction.

“The County of El Paso is taking a leadership role, from my perspective, saying we believe the rights of our citizens should be honored and respected regardless of where we live,” Commissioner Veronica Escobar said. “It seems because we live on the U.S.-Mexico border, our rights mean less than those who don’t live on the U.S.-Mexico border.”

The Commissioners Court voted during a special meeting Tuesday to join two lawsuits against the federal government regarding the construction of a border fence.

“Neither lawsuit seeks to deprive the federal government of building the fence,” County Attorney José Rodríguez said after the meeting. “What the lawsuits seek is to require the federal government to follow procedures and due process, and to observe the constitutional rights individuals and the community have in these matters.”

The court voted 4-1 to join both of the lawsuits. Commissioner Dan Haggerty voted against the court’s participation.

“We are at war, and when you are at war, all the rules are off the table. We’re not concerned any longer about the spotted owl and whether he will survive this war -- we’re worried about us surviving this war,” Haggerty said. “Thank God we have people who will take the initiative to get things done, and when times get tough, they wipe out all the rules and regulations to get them done.”

Rodríguez said the county would not have to pay for its participation in either lawsuit.

The first lawsuit the county will join is one previously filed by the Texas Border Coalition, which alleges the federal government has violated the constitutional rights of border communities and landowners, as well as federal law, he said.

Rodríguez said the lawsuit alleges the government has not properly negotiated a price with landowners for land on which the fence will be built, or in regard to related roads.
It also alleges the Department of Homeland Security has not properly consulted with border communities and property owners about the location of the fence and any bad effects on the environment, economic development and historical and cultural considerations.

The border coalition was was happy to have the county’s participation.

Eagle Pass Mayor Chad Foster, chairman of the Texas Border Coalition, said in an e-mailed statement that the coalition was pleased that El Paso County and the city of Presidio were joining the lawusit and said the coalition also was happy that Bexar County adopted a resolution in support of the lawsuit.

The county also voted on Tuesday to become part of a lawsuit, to be filed later this week, that questions whether waiver authority issued by Congress to the secretary of homeland security is so broad that it violates the Constitution. More than 30 laws have been waived to allow the construction of the fence to move forward, and state and local laws related to these could also be waived.

“A second concern in this lawsuit is (that) the waiver is in violation of the U.S. Constitution because it limits the right of judicial review, the ability to take it to an appellate court in order to review whether or not the secretary exercised his authority appropriately or not,” Rodríguez said

Escobar said, “Property owners’ rights are being violated through the waivers, and so we want to make sure we protect the public landholders and private landholders who will have to deal with the federal government because under the waiver there’s no appeal process. So if you get $100 for 1,000 acres, that’s what you get, and the (actions) allowed were a violation of due process.”

The lawsuit will be filed along with plaintiffs El Paso Water Improvement District No. 1 and the Tigua tribe.

Rodríguez said the pending lawsuits could delay the construction of the fence.

“It’s important for communities like El Paso to speak up and to stand up for their rights,” Rodríguez said. “Not even the federal government should be able to disregard the Constitution.”

But Haggerty said that if anyone should be able to violate federal law, it’s the federal government.

“Maybe a wall is not the answer, but we have elected these people to go to Congress and vote and come up with an idea and they have done that,” he said. “Michael Chertoff has gotten all this authority through these people. ... If they are going to put up a fence and get it done immediately, that’s what the man is doing. If you don’t like it, vote these people out of Congress that gave him that authority.