Eminent Domain Litigation Will Halt Border Wall Construction

Prof. Gerald S. Dickinson, Washington Post, Mar. 3, 2017- "Trump’s real difficulty will be in getting permission from property owners to build the wall — no matter how much money it takes — and the land wars that will bog down his plans. Trump, who has cast himself as a master dealmaker, will need to coordinate massive voluntary sales of property near the border or negotiate easements for large swaths of land to make way for the wall construction. This is no small feat. ... [R]esistance is building. Landowners, Native American tribes, and Republican and Democratic lawmakers are on record opposing the wall. What happens if this resistance turns into outright refusal to sell land? Trump’s only option at that point would be eminent domain — which could prove to be even harder than cutting individual deals. In trying to take land for the wall, the federal government would be held to time-consuming procedures that include consultation and negotiation with the affected parties — including private landowners, tribes, and state and local governments — before taking any action. Federal law requires the government to consult with “property owners … to minimize the impact on the environment, culture, commerce, and quality of life for the communities and residents located near the sites at which such fencing is to be constructed.” Then the government would need to declare a taking and undergo condemnation proceedings. ... Owners who are subject to eminent domain to build the wall would have to receive compensation for its physical presence on their property. Successfully measuring the value of the land and settling on prices for hundreds of owners with unique property interests, however, would be the “deal” of the century. ... What is the result of all of this? Years and years of litigation before the “immediate construction” of the wall. Any federal eminent domain action on such a large scale against even a few landowners could trigger decades of court disputes before anything is built. As Trump, a New York real estate tycoon, is surely aware, the Atlantic Yards redevelopment project in Brooklyn endured multiple condemnation challenges, resulting in six years of litigation and negotiation. before anything was built. And that was a much smaller project. ... Americans do not take kindly to threats to fundamental principles of property ownership, even if some of them (though not most, polling shows) like the concept of the wall and the immigration policy Trump wants to pursue. It is not inconceivable to think we are heading for another Kelo saga. The wall could lead to the backlash of the century: a resistance movement laced with political, cultural, social and economic consequences. While Kelo’s land grab was for economic development, Trump’s wall is in service of a wrongheaded immigration policy. Surely this public purpose, like the one in Kelo, will inflame the passions of Americans who see our country as a symbol of democracy and inclusion, not as an isolationist nation."