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Ruling may impact the use of border sensors
The Sierra Vista Herald ^ | May 10, 2009 | Jonathan Shacat

Posted on 05/10/2009 11:59:50 AM PDT by HiJinx

BISBEE — A recent court decision that held the Border Patrol liable for occupying private property in California might be applied to lands in other places near the U.S.-Mexico border, including Cochise County.

Otay Mesa Property LP, Rancho Vista Del Mar and Otay International LLC filed a lawsuit in March 2006 seeking compensation for the use of 750 acres of valuable development land in San Diego County.

Without permission from landowners, the Border Patrol buried numerous sensors, and then entered the property when the sensors indicated movement of potential illegal immigrants.

On Tuesday, the U.S. Court of Federal Claims held the Border Patrol liable for the physical taking of an easement on the land. A trial is expected later this year to determine the amount of damages that will be awarded.

Nancie Marzulla, counsel for the landowners, said the trial court decision could be appealed, although the case also may be a “persuasive authority” for another judge to look at how to analyze the issue.

“If anybody brought a similar case based on the same theory of liability that we did, they would wind up in this court,” she said. “This is the only court in the country that has jurisdiction to award damages for takings against the Border Patrol.”

Public information officers with Border Patrol in Tucson did not respond to requests seeking comment on this matter.

Knowledge of the whereabouts of sensors is “one of the most closely guarded secrets of the Border Patrol,” said Glenn Spencer, president of American Border Patrol, a non-governmental organization based in Hereford.

If this particular court case prevails and sets a precedent, Border Patrol risks losing control of the information on the locations of sensors, he added. A smuggler who is aware of the positions of a device can defeat its purpose by simply staying away from it.

“If Border Patrol has to negotiate with a rancher for putting in sensors, they may have to tell them where they are going,” Spencer said. “They might put a non-disclosure clause in the agreement, but that still exposes them.”

The same situation may hold true on tribal lands, he added. Payment could be demanded for use of that property, thereby creating a scenario that could raise issues about the confidentiality of the locations of sensors.

But, he pointed out, a lot of the border region consists of government land. He does not think Border Patrol would experience problems placing sensors on federal or state property.

Spencer, who performs aerial surveys of border fence construction, said the government should equip the fencing with sensors so officials would know when people are crossing.

“Then you wouldn’t have to have all these sensors inland,” he said.

Roger Barnett, a rancher near Douglas, said he likes the fact that Border Patrol has installed sensors on his land along the border.

“If it will enhance their operation, then more power to them,” he said. “In fact, sometimes I don’t think they have enough sensors on the property.”

“The sensors are really effective because they notify them that something went through there, and they can go back there and check it out,” he added. “Sometimes it is animals, but more than anything it seems like it is humans.”

Richard Hodges, a rancher along the border near Bisbee Junction, said he thinks it is in the best interest of landowners for the sensors to be in place. He said he hates it when the Border Patrol has “just one more thing” to work around.

“I hope the Border Patrol doesn’t just move away from private property. They could, but I have signed several documents that give the Border Patrol, as well as other federal agencies, permission to be on my place,” he said. “They also asked if they could land small airplanes on my place and I said yes to that, too. I don’t think they ever have.”

Richard Humphries, who owns land located less than 10 miles south of Pearce and more than 30 miles from the border, said he does not object to the use of sensors by Border Patrol.

“The more the merrier, as far as I am concerned,” he said.

He said he is not sure the agency has put any sensors on his property. But there are some on private property on the road along his mailbox.

“How could the sensors bother anyone, when no one even knows where they are and all they are doing is alerting the Border Patrol to potential illegal crossers?” Humphries said. “So, there is no concept of any harm being done there.”

Marzulla acknowledged that some property owners along the border may be pleased with the use of sensors on their land. But in the case of this lawsuit, it was just the opposite circumstance.

“The question is, who gets to choose? Is it the landowner, or is it the Border Patrol agent? If the landowner is happy about it, terrific, then it’s win-win. But if the landowner is not, this case says to the government, you can’t do that without going to the owner and acquiring an easement,” she said.

The court rejected the government’s argument the statute of limitations had run out on some of the claims due to a letter dated 1984 from the Border Patrol to San Diego County that generally referenced buried sensors in the general Otay Mesa area.

“Court will not give notice effect to a letter 15 years prior to the 1999 installation of sensors on plaintiffs’ property, where there is no showing that plaintiffs received the letter,” says the opinion and order.

“Since the sensors are buried below the ground except for a 1-foot antenna, the court will not place plaintiffs on notice of the sensors because the Border Patrol’s use of the sensors was not ‘open and notorious’ on plaintiffs’ property,” it continues. “Absent notice from the Border Patrol, plaintiffs’ claims of an easement for the seismic sensors are not barred by the statute of limitations.”


TOPICS: Local News
KEYWORDS: aliens; amnesty; border; borderpatrol; chulavista; eminentdomain; immigrantlist; mexico; otaymesa; propertyrights; rogerbarnett; sandiego; sbi; usarizona
So, what's the real reason Otay Mesa LLP doesn't want the sensors on their property?
1 posted on 05/10/2009 11:59:50 AM PDT by HiJinx
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To: 1_Inch_Group; 2sheep; 2Trievers; 3AngelaD; 3pools; 3rdcanyon; 4Freedom; 4ourprogeny; 7.62 x 51mm; ..

Border Sensor...Ping!


2 posted on 05/10/2009 12:00:17 PM PDT by HiJinx (~ Support Our Troops ~ www.AmericaSupportsYou.mil ~)
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To: HiJinx
Mo' money, Mo' money, Mo' money....


3 posted on 05/10/2009 12:03:07 PM PDT by darkwing104 (Lets get dangerous)
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To: darkwing104

Well, I suppose it could be a simple case of economics...

It’s interesting to note the comments from local ranchers here in Arizona who’ve been in the middle of this mess for a decade or more, now.


4 posted on 05/10/2009 12:05:00 PM PDT by HiJinx (~ Support Our Troops ~ www.AmericaSupportsYou.mil ~)
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To: HiJinx
Well, I suppose it could be a simple case of economics...

Think greed...I've seen similar events happen whenever an Air Force base updates it;s facilities...The locals raise a stink and go away when they get a million or two to shut them up. I also wonder if they are taking money from the Coyotes? The Border Patrol will learn it's just cheaper to pay the Greedy SOBs off or threaten Eminent domain than to fight it in court


5 posted on 05/10/2009 12:13:34 PM PDT by darkwing104 (Lets get dangerous)
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To: HiJinx
Otay Mesa Property LP, Rancho Vista Del Mar and Otay International LLC filed a lawsuit in March 2006 seeking compensation for the use of 750 acres of valuable development land in San Diego County.

Oh, yeah, I'm sure it's real valuable. Everybody wants to live in a subdivision right on the Mexican border. /s

The answer is to run the sensors around their property effectively putting it in Mexico. But then the greedy bastids would sue because the gummint wasn't protecting them.

6 posted on 05/10/2009 12:22:16 PM PDT by TigersEye (Cloward-Piven Strategy)
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To: TigersEye

LOL!!


7 posted on 05/10/2009 12:25:39 PM PDT by HiJinx (~ Support Our Troops ~ www.AmericaSupportsYou.mil ~)
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To: HiJinx

Just means their property is going to be condemned. Some people aren’t very smart.

There was a similar situation on the Canada Border with the US. The US Family Farm kept complaining and the US just condemned their property after they lost a court case bought by the family against the border patrol for damaged crops.

They were on the radio, nice people. They were having their rights violated no doubt, but the alternative was worse.


8 posted on 05/10/2009 12:27:18 PM PDT by dila813
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To: dila813

The sad part is; there is always some form of compromise. And the citizen will always lose if he doesn’t take part in negotiating the compromise.

I’m not sure, in the case of Otay Mesa LP, that the civilians had an opportunity to negotiate with the Border Patrol...


9 posted on 05/10/2009 12:32:43 PM PDT by HiJinx (~ Support Our Troops ~ www.AmericaSupportsYou.mil ~)
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To: HiJinx

I actually talked to some agents there one day. They were quick to tell you how some landowners near the border obstruct them in any way they can. One example was that Agents can go without warrant onto property adjacent to the border, but they do not have a right to use roads.

Some Landowners paid off by the dopers build iron pipe gates and force the USBP to walk several miles down a dirt road to patrol.

It’s naive to think the cartels have corrupted an entire nation in mexico, but that magically, everyone just this side of the fence is pure as the driven snow. These are the people who fight the USBP, and of course, people who have a last name ending in “Z”.


10 posted on 05/10/2009 12:47:24 PM PDT by DesertRhino (Dogs earn the title of "man's best friend", Muslims hate dogs,,add that up.)
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To: HiJinx

The Constitution requires that owners of private property taken for public use be compensated.

Protection of the border is obviously a perfectly legitimate public use, but compensation is still required.


11 posted on 05/10/2009 12:54:51 PM PDT by Sherman Logan (Everyone has a right to his own opinion, but not to his own facts.)
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To: Sherman Logan

The thing that truly bothers me is that there is apparently no easement already in effect along the entire length of the border.

In my mind this is clearly a case of eminent domain; inasmuch, as you mentioned, border security is the reason for the need for an easement.


12 posted on 05/10/2009 1:06:36 PM PDT by HiJinx (~ Support Our Troops ~ www.AmericaSupportsYou.mil ~)
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To: HiJinx
I’m not sure, in the case of Otay Mesa LP, that the civilians had an opportunity to negotiate with the Border Patrol...

Perhaps not but don't you find it odd that the AZ ranchers say the BP came to them first? I think OM LP is being stupid by not cooperating with them. The FedGov, through the BP, is bearing the cost of a security system for their property. The courts might possibly rule in OM LPs favor and then stipulate that they insure the security of their property boundary with Mexico. If they fail to secure it then they lose the property. How about that for an answer? lol

13 posted on 05/10/2009 1:19:44 PM PDT by TigersEye (Cloward-Piven Strategy)
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To: HiJinx
There are interesting tidbits about these three entities (Otay Mesa Property, L.P., Rancho Vista Del Mar, and Otay International, LLC)
in a prior court case (PDF). Apparently more than one-half of their 293 acres were designated by the FWS as "critical habitat" for the
"fairy shrimp" so they sued the DOI. The land is described as follows:
Plaintiffs’ property is located along the United States-Mexican border in San Diego
County, east of the city of San Diego, in a rugged and hilly coastal-mesa area, lying west of the
foothills of the San Ysidro Mountains. Pls.’ Opp’n at 4. Most of the area is accessible only in
heavy-duty utility vehicles or on horseback, and is not accessible by public roads. Id., Ex. 2 (Wick
Decl. (“Wick Decl.”)) ¶ 5. The portion of Plaintiffs’ property that is designated as part of the critical
habitat is privately owned, unimproved land, but is zoned for light industrial use. Pls.’ Opp’n at 4.
The Plaintiffs together own approximately 274.55 acres, about 143 acres of which have been
designated by the FWS as critical habitat for the San Diego fairy shrimp. Id. These 143 acres are
included in a 391-acre area that the FWS refers to as Subunit 5D, a parcel designated by the FWS
as fairy shrimp habitat. Id. at 4-5.
https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2008cv0383-22
14 posted on 05/10/2009 1:39:52 PM PDT by calcowgirl (RECALL Abel Maldonado! - NO on Props 1A 1B 1C 1D 1E 1F)
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To: HiJinx

So, what’s the real reason Otay Mesa LLP doesn’t want the sensors on their property? >>>>>>>>>>>>>>>>>>>>>>

They are greedy sacks o shiite and want monetary compensation for a “taking” of part of their land


15 posted on 05/10/2009 1:42:00 PM PDT by dennisw (Your action becomes your habit. Your habit becomes your character, that becomes your destiny)
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To: calcowgirl

http://www.marzulla.com/news.php?action=view&id=7

San Diego Land Owners File Takings Lawsuit Over Border Wall Placement

FOR IMMEDIATE RELEASE
FOR MORE INFORMATION CONTACT:
Nancie G. Marzulla
(202) 822-6760
Roger J. Marzulla
(202) 822-6760

March 6, 2006

SAN DIEGO LAND OWNERS FILE TAKINGS LAWSUIT OVER BORDER WALL PLACEMENT

Washington (DC)— Three landowners, Otay Mesa Property L.P., Rancho Vista Del Mar, and Otay International LLC, have filed a takings lawsuit in the U.S. Court of Federal Claims in Washington, D.C. seeking compensation for the physical taking of approximately 750 acres of valuable development land in San Diego County, California. The property is located in the Otay Mesa area, at the end of the 14-mile border fence erected by the federal government. Because the fence is only partially complete and terminates on the privately owned land, federal Border Patrol agents nightly round up dozens of illegal immigrants on the private property, making it unusable for commercial development. The federal government has also erected various structures on Plaintiffs’ property without their permission.

“There is no question that securing American borders is an important national objective which the landowners support,” said Nancie G. Marzulla, an attorney representing the property owners. “But,” she added, “the Constitution requires that the government carry out its important objectives by obeying the Constitution, and paying for the property it takes.”

The plaintiffs are represented by Marzulla & Marzulla, a Washington, D.C.-based law firm with decades of experience in property rights litigation in the U.S. Court of Federal Claims. For further information about the case, call 202-822-6760 or visit www.marzullalaw.com.


16 posted on 05/10/2009 1:42:44 PM PDT by calcowgirl (RECALL Abel Maldonado! - NO on Props 1A 1B 1C 1D 1E 1F)
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To: DesertRhino

Good info there. Traitors to America


17 posted on 05/10/2009 1:43:53 PM PDT by dennisw (Your action becomes your habit. Your habit becomes your character, that becomes your destiny)
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To: calcowgirl

See my post 15
They want M O N E Y!
That’s all this is about
Their land is probably useless and worthless but they’ll see if they can wring some $$$$$ out of Uncle Sam


18 posted on 05/10/2009 1:46:04 PM PDT by dennisw (Your action becomes your habit. Your habit becomes your character, that becomes your destiny)
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To: calcowgirl

That is interesting. I didn’t know fairy shrimp could live in dust.


19 posted on 05/10/2009 2:01:23 PM PDT by TigersEye (Cloward-Piven Strategy)
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To: TigersEye; calcowgirl

“That is interesting. I didn’t know fairy shrimp could live in dust.”

This is how insane this enviro ‘save the fairy shrimp’ crappola is. Several years ago, on Discovery Channel IIRC, they had a show on the top 10 survival ‘critters’.

The Fairy shrimp was one. They live everywhere. This show featured some from Africa, IIRC. They BOILED the things and they didn’t die!


20 posted on 05/10/2009 2:05:10 PM PDT by AuntB (The right to vote in America: Blacks 1870; Women 1920; Native Americans 1925; Foreigners 2008)
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To: AuntB; calcowgirl
Uhhhhhh, if they are that hardy why do they need protection? That was a rhetorical question, you couldn't possibly give a rational answer. There couldn't be one. Apart from enviro-politics and corruption that is. heh

There might possibly be a little creek around there but it is one of the driest areas on the North American continent. I suspect calcowgirl has uncovered a legitimate reason for OM LPs grievances. It doesn't look like it started with the BP they may have just gotten sucked into it because they're part of the FedGov.

Save the Faiwy Shwimp!!! Bawney Fwank would want you to.

21 posted on 05/10/2009 2:16:34 PM PDT by TigersEye (Cloward-Piven Strategy)
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To: TigersEye

Evidently the things lay dormant in their ‘egg’ stage for up to ten years. We had them in So. Oregon where it gets over 100 degrees much of the summer. And they were in every puddle around in the spring. We are more endangered than the Fairy Shrimp. Most of this enviro movement is about fund raising and using the ESA to sue people with that little provision that ANY ONE can sue the government on behalf of an endangered species and collect atty fees...which is why you find lawyers running all the enviro groups.

What a racket!


22 posted on 05/10/2009 2:21:39 PM PDT by AuntB (The right to vote in America: Blacks 1870; Women 1920; Native Americans 1925; Foreigners 2008)
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To: calcowgirl
The federal government has also erected various structures on Plaintiffs’ property without their permission.

The federal government will have to provide compensation and/or remove the structures. At a minimum, they should have provided the owner's with notice and made sure that is was a matter of public record.

23 posted on 05/10/2009 3:22:44 PM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: Mojave

I suspect the “structures” are the sensors in the buried in the ground and sticking up about a foot tall, every X number of yards.
I used to have something like that to keep my dog on our property.


24 posted on 05/10/2009 4:36:13 PM PDT by calcowgirl (RECALL Abel Maldonado! - NO on Props 1A 1B 1C 1D 1E 1F)
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To: HiJinx
Should place sensors everywhere but where the ranchers object. . .and then let everyone know which ranchers objected and do not place sensors there. This action will funnel the bad guys right through there, open door, as it were, and let the rush begin, hoards of filthy illegals passing through and trashing his lands (and maybe even home). Yup. . .seems like a perfect plan to me.
25 posted on 05/10/2009 4:37:00 PM PDT by Hulka
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To: calcowgirl

The court has apparently held that the structures weren’t visible enough to create a prescriptive easement. The federal government was sloppy on this one.


26 posted on 05/10/2009 4:52:39 PM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: HiJinx

Let’s see, some State Supreme Court just ruled that it’s okay for the cops to put a GPS tracker on your car without a warrant, but it’s not okay to put sensors on someone’s land along an international border which is being violated.

Yeah, right.


27 posted on 05/10/2009 5:04:35 PM PDT by PLMerite ("Unarmed, one can only flee from Evil. But Evil isn't overcome by fleeing from it." Jeff Cooper)
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To: Mojave

It looks like the land was acquired in a scummy bank deal where the prez extended credit to himself beyond FDIC limits. The FDIC banned the guy. He moved the land into trusts in the name of his children and his mama in Mexico. While I’m a strong opponent of eminent domain abuse, this looks more like a Jesse Jackson type shakedown.


28 posted on 05/10/2009 5:13:51 PM PDT by calcowgirl (RECALL Abel Maldonado! - NO on Props 1A 1B 1C 1D 1E 1F)
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To: calcowgirl

Even scum have to be given notice when there is a taking of property. The title should have been researched before the property was entered.


29 posted on 05/10/2009 6:34:35 PM PDT by Mojave (Don't blame me. I voted for McClintock.)
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To: dennisw

30 posted on 05/10/2009 6:40:11 PM PDT by MrB (Go Galt now, Bowman later)
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To: HiJinx; All

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31 posted on 05/10/2009 6:49:27 PM PDT by Tennessee Nana
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