Forget funding the wall, Trump needs the land first

But the Democrats are not the obstructionists. The main obstruction is the land. Congress shouldn’t be clamoring about funding the wall — they should be looking to prior federal land acquisitions for major projects as evidence of the impediments that lie ahead.

{mosads}Only about one-third of the land the wall would sit on is owned by the federal government or by Native American tribes. States and private property owners, especially along the Texas-Mexico border, own the rest.

Trump would have to engineer a monumental settlement with thousands of landowners who control thousands of acres of land along the border. Otherwise, the administration will have to face hundreds, if not thousands, of lengthy eminent domain disputes before anything is built across approximately 2,000 miles of the international border. Beyond the turf wars, the wall is sure to raise considerable litigation over environmental impacts.

If Trump can overcome the existing land obstructions, then his wall may rival the nation’s largest civil and military land acquisition projects in decades.

The establishment of the Big Cypress National Preserve in Florida in the 1970s is known as one of the largest federal land acquisitions in history. The Preserve, located near the Everglades, is a mosaic natural environment with a diverse ecosystem. Congress thought the area was important enough to enact legislation calling for the preservation of the over 574,000 acres of land.

At the close of fiscal year 1979, the Interior Department’s National Park Service condemned over 11,400 tracts of land, representing 28 percent of the over 40,400 tracts acquired for the project. That project required vast numbers of Department of Justice lawyers and contract or government appraisers to handle thousands of small tracts. It took more than 8 years to acquire all the land for Big Cypress.

And then there was the long drawn-out acquisition project for the Harry S. Truman Dam and Reservoir in Missouri, completed in 1979. The project was authorized by Congress in 1954, with the purpose of alleviating the flooding of towns and farms along the Mississippi and Missouri Rivers.

The dam inundated 209,300 acres of land, and the shoreline of the multipurpose pool is nearly 1,000 miles long. It took 15 years for the Army Corps of Engineers to acquire all the land. Delays were due to funding limitations between fiscal years 1967 to 1971 and litigation over environmental and eminent domain challenges. Ultimately, a whopping 20 percent of the tracts necessary for the project were acquired by lengthy condemnation proceedings.

As for national security and military projects, the United States Navy’s Chocolate Mountain Aerial Gunnery Range in California is another large federal acquisition project. The Gunnery Range was established during World War II. The land was not valuable for any productive use, except for a gunnery range. The project took years and by the end of 1979, the Navy had filed 1,377 condemnation cases to acquire the land necessary for a massive gunnery field.

The construction of an international border wall will be no exception.

As noted, Native tribes, private property owners and state and local governments own a significant chunk of the land along the border. Texas is perhaps the most daunting obstacle for the Trump administration thanks to President Theodore Roosevelt, who signed the “Roosevelt Reservation” in 1907. The reservation designated a public reservation of all public lands within 60 feet of the U.S.-Mexico border in California, New Mexico and Arizona. Texas, however, retained title to all its public lands within the state. Fast forward over a century later, and the state has sold off most of the land to ranchers, farmers, developers and homeowners along the Texas-Mexico border. Indeed, Texas may have the upper-hand in this land duel with the Trump administration.

The government would need to coordinate a massive voluntary sale of the property or rely on lengthy eminent domain proceedings to acquire it. This process, like Big Cypress and the Truman Dam, would take years to complete. Successfully measuring the value of the land along the border and settling on the prices for hundreds and thousands of acres of land is very difficult to determine. Even determining just compensation won’t be easy since the land at stake along the border is infrequently exchanged on the market. There are simply few other properties in the country located along an international border.

The result of all of this is years and years of litigation and long and drawn out settlements with landowners, just like Big Cypress and the Truman Dam, not to mention the many other federal projects that took years to acquire the land, such as the D.C. Metro system.

The debate over the wall should not be relegated to who is obstructing Congress from funding Trump’s wall. The real debate is the land acquisition obstructions that lie ahead. 

Gerald S. Dickinson is a law professor at the University of Pittsburgh School of Law, focusing his research and writing on constitutional property, local and state government law and land use.