Friday, March 28, 2008

Defending your homeland from Homeland Insecurity

Image caption: from the blog Unidos Contra El Muro - United Against the Wall

This is something of an update to some news items that I've pointed y'all to over the last few months regarding the DHS attempt to use imminent domain as a tactic to build The Apartheid Wall along the Texas-Mexico border. From the No Border Wall blog I found two recent articles. First, regarding the imminent domain case of Dr. Eloisa Tamez:
In a 32-page decision issued today, a federal judge in Brownsville ruled that Secretary of Homeland Security Michael Chertoff violated federal law in his rush to build several hundred miles of border fencing in Southern Texas.

In a lawsuit filed by Secretary Chertoff in January against Dr. Eloisa Tamez, the Department of Homeland Security requested an expedited court order condemning Dr. Tamez's land so it could immediately commence a survey for the planned border fence. Dr. Tamez is an indigenous land-grant property owner in South Texas who refused to voluntarily give the U.S. Government a six month right to enter her land to survey for the border wall.

About twenty cases filed by Secretary Chertoff to condemn land along the border have been consolidated before federal judge Andrew Hanen in Brownsville, Texas, and delayed pending the outcome of Dr. Tamez's case.

In response to the government's suit, the court held a lengthy hearing on February 7 at which Dr. Tamez's lawyers with the Los Angeles-based Center for Human Rights and Constitutional Law argued that Secretary Chertoff had violated federal law by failing to negotiate with Dr. Tamez to arrive at a "fixed price" for the six month access it sought before suing to condemn the land to allow the survey to proceed.

In the decision issued today, judge Hanen ruled that "Dr. Tamez correctly asserts that negotiations are a prerequisite to the exercise of the power of eminent domain" under federal law. The court further concluded that Secretary Chertoff had presented "insufficient evidence ... as to whether there has been bona fide efforts to negotiate with Dr. Tamez." As it has done for over a month now, the court refused to sign an expedited order condemning Dr. Tamez's land so that the Department of Homeland Security can start a survey for its planned border wall.

The court also decided that a clause in the 2008 Appropriations Act for the Department of Homeland Security enacted in December 2007 that requires the Secretary of Homeland Security to consult with property owners to minimize the adverse impacts of any border activity is not a defense to the temporary access the Department seeks to conduct a survey, "but that it still may be a defense to later activity by the Government" when it seeks to enter her property: "Given the mandatory language of the consultation clause, that 'the Secretary of Homeland Security shall consult . . .,' this Court may find it proper to require compliance with the consultation clause, when appropriate, as a condition prior to entry onto the property after the taking has been completed ... Dr. Tamez's objections concerning the failure of the Government to abide by the consultation clause are denied without prejudice to her ability to reassert those objections at a later point in time" if the Government actually seeks to enter her property.
Looks like a mixed, but hopeful decision in Dr. Tamez's favor. Next, see Chertoff's Real ID Act Power to Waive U.S. Law Challenged:
WASHINGTON – Today, Defenders of Wildlife and The Sierra Club filed a petition asking the U.S. Supreme Court to hear its argument that the REAL ID Act, which grants Department of Homeland Security (DHS) Secretary Michael Chertoff unprecedented and sweeping authority to waive any and all laws to expedite the construction of a wall along the U.S.-Mexico border, is unconstitutional besides being harmful to the environment and border communities. The two conservation groups charge that such unbounded authority to the executive branch is a violation of the Constitution’s separation of powers provisions.

“By granting one government official the absolute power to pick and choose which laws apply to border wall construction, the REAL ID Act proves itself to be both inherently dangerous and profoundly un-American. The issue here is not security vs. wildlife, but whether wildlife, sensitive environmental values and communities along the border will be given fair consideration in the decisions the government makes,” said Rodger Schlickeisen, president of Defenders of Wildlife. “We are hopeful that the Supreme Court will take up this case in order to protect the fundamental separation of powers principles enshrined in the United States Constitution”

“Laws such as the National Environmental Policy Act and the National Historic Preservation Act are part of America's enduring legal framework, and no agency or public official should be allowed to ignore them,” said Carl Pope, executive director of Sierra Club. “Our laws have provided Americans a voice in the decision-making process that affects their lives, their human rights and the protection of wildlife; our government must not exempt itself from obeying those laws.”

The groups’ petition is the latest chapter in their legal efforts dating back to October, 2007 to safeguard the borderlands in the face of aggressive border wall construction. At that time, Defenders and The Sierra Club filed a lawsuit challenging DHS and Bureau of Land Management’s (BLM) approval of border wall construction within the San Pedro Riparian National Conservation Area in Arizona. After a federal judge in the U.S. District Court for District of Columbia found that the groups would likely prevail on their claims and issued an injunction blocking further construction of the wall, Secretary Chertoff waived 19 laws intended to protect public health, wildlife and endangered species, clean air and water, and historic and archeological sites to move forward with construction.

In their petition to the U.S. Supreme Court, Defenders and The Sierra Club contend that the REAL ID Act’s waiver provision unconstitutionally allows the DHS secretary unilaterally to repeal laws, threatening the system of checks and balances assured in the Constitution.
If you want some of the back story to these more recent developments, check the following:
Great Wall of China, Part Dieux
Defending your homeland from Homeland "Security"
Solidaridad Americano
Homeland Insecurity Strikes Again
"Mr. Gorbachev, tear down this wall!"
Along the border
Calling things by their true names: Homeland Insecurity edition

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