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.”
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.
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!
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.
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.
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.
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.
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.
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.
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