Now that the University of Texas at Brownsville has escaped nearly unscathed from the border fence fracas, landowners are left to wonder what will happen to their own property.  Will the outcome of the university’s case translate into a less daunting–or, to paraphrase UTB President Juliet Garcia–a “friendlier” barrier. 

In court, no attorney has used the university’s situation as a standard to be applied in the cases of private landowners.  Judge Andrew Hanen and attorneys for both DHS and UTB have long alluded to the university’s situation as a unique one.   In a June hearing, Hanen referred specifically to Garcia’s difficult predicament.  He concluded the hearing by saying, in a characteristic touch of humor, “(UTB-TSC) has some pretty good athletes, but an 18-foot barrier is a hurdle even their own athletes can’t clear.”

A number of landowners I’ve spoken to have pointed to the outcome of the university’s case as a hopeful sign.  And they’re quick to remind me that the judge hasn’t yet capitulated to the government’s suggestion that contested property be handed over before land condemnations are settled.  But that could happen as soon as late August.  If it does, a number landowners could be left to question the rift between the university’s treatment and their own. 

Most residents along the Rio Grande rejoiced when they caught word of last week’s settlement.  But with the government December 31 deadline looming and Cameron County still fence-less, such exultation might quickly turn into bitterness. 

If that happens, the details of the university’s more-than-favorable settlement will be inevitably rehashed.  UTB triumphed thanks largely to its claim of exceptionalism.  But rarely does a claim of exceptionalism come without a barrage of criticism on behalf of the unexceptional.

After an inexcusable hiatus, On the Fence will return tomorrow with an update on the barrier and the people who stand in its way. 

Covering the border fence sometimes feels like a South Texas adaptation of “Waiting for Godot.” Lawsuits are filed, protests are staged, the Government Accountability Office and the Department of Homeland Security clash over construction timelines. And here in Brownsville, we wait.

At the Herald, we continue to chase the bureaucratic apparition. For some time, we’ve been reporting on a barrier that is, as of yet, invisible.

In the last week, both the federal government and the Texas Border Coalition, a group of border politicians who oppose the fence, have filed lawsuits.

The 16 lawsuits that the government filed in Cameron County mark the first round of permanent land condemnation suits–eminent domain in its most traditional form. The only question now is how much (heretofore obstinate) landowners will be compensated. Many are unhappy with the feds’ initial offers.

Once those suits are settled (though there will be far more than 16 when all is said and done), there will be no judicial roadblocks to stop construction of the fence. That gives DHS less than six months to meet its self-imposed deadline.

I spoke to a group of landowners along the border today, most of whom are waiting on specifics.

“Until it’s built, we don’t have a problem,” one of them told me. At least from what I saw this morning, not a single segment of fencing has yet been erected.

Still, the waiting game is wearing on border residents. And, for some, the longer it stretches out, the harder it is to conceive of the 18-foot-barrier. If it the process has been delayed this long, the thinking goes, what’s to say it won’t be ditched entirely?

Border residents aren’t just waiting to see if the fence is built, they’re waiting for details. Many won’t know how they’ll be affected until they know the specifics of the fence’s trajectory. But even the simplest questions (What will it be made of? What color will it be? Will it run through my frontyard or my backyard?) have eluded landowners so far.

As we prepare to celebrate the third anniversary of the Secure Fence Act, it’s starting to feel–despite our better judgment–that these answers will remain elusive, that the border fence will remain something we talk about, instead of something we see.

It’s not surprising that the national media has taken to covering the border fence on a fairly regular basis.  What is surprising is that the country’s most well-respected news outlets manage to consistently misunderstand one of the issue’s important nuances.  

There will be–as The Herald has pointed out–houses and businesses on the south side of the border fence.  But will they be on the “Mexican side of the fence?” No.

The Department of Homeland Security is not selling a sliver of the country to Mexico.  The land south of the fence will not be abandoned or informally ceded.  It will not become, as the L.A. Times suggests incoherently, “a holding site for prisoners of war.” 

At April’s congressional hearing, Border Patrol chief Ronald Vitiello confirmed that the land on the south side of the fence will be patrolled by BP.  In fact, the fence is being built north of the levee in order to provide BP agents with a pre-constructed road on the south side. 

In other words, the Treaty of Guadalupe Hidalgo, which ended the Mexican-American War, will not be disregarded.  No land north of the Rio Grande will become Mexican territory.

Do reporters from outside of the Valley not understand these details, or are they referring to “the Mexican side of the fence” figuratively? 

The New York Times has done this at least twice: here and here.

The L.A. Times did it here.

Newsweek did it here.

The Christian Science Monitor did it here .

Are all of these reporters intent on extending the “Mexican side” metaphor?  If they are, some attention must also be paid to the dry details of sovereignty and ownership. 

After the fence is constructed, the land south of the barrier might be mistreated and environmentally degradated.  Its inhabitants might be marginalized and unfairly compensated.  But it will be American soil. 

The federal goverment is getting ready to construct the border fence, and some of the land it will be building on belongs to Cameron County and the city of Brownsville.  This puts local politicians in a precarious position.  Will they refuse to cooperate with DHS to show their disapproval?  Nearly all commissioners, city and county, have spoken out against the fence. 

The question of how local politicians should respond to DHS’ advances became an issue earlier this year,  adding to existing tension on the City Commission. 

Both commissions continue to deal with the topic of the fence, which is inevitably raised at monthly meetings.  At yesterday’s county meeting, commissioners chose not to join a federal lawsuit against Homeland Security Secretary Michael Chertoff. 

At the city meeting, a commissioner mentioned that he had discussed the possibility of alternatives to the fence with DHS officials.   The specifics of these alternatives weren’t discussed, and the commissioners were hesitant to say much “before we see anything in writing.” 

During his presidential campaign:

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John McClung, President and CEO of the Texas Produce Association

Ken Merritt, Private Citizen

Laura Peterson, Senior Policy Advisor, Taxpayers for Common Sense

Zack Taylor, Supervisory Border Patrol Agent (Retired), Association of Former Border Patrol Officers

McClung: “We’re not really talking about a border wall here, we’re talking about a ’south of the border wall.’”

“We haven’t been told how farmers will access the river…we have to have access 24/7; it’s a very practical kind of problem.”

“Nothing has been said about the value of land south of the levee after the wall is constructed.”

Merritt: Until last year, worked for Fish and Wildlife in the RGV. He worked for 30 years with F & W as a biologist.

“Level of surveys (at wildlife refuges along the border) did not allow adequate time for environmental ”

“Ocelot Jaguarundi will be very much impacted by the wall.”

“We have over 300 fires on U.S. Fish and Wildlife properties every year. How will these fires be dealt with?”

Peterson:

“Border wall as currently envisioned will cost billions of dollars alone.”

“Procedural short cuts…almost guarantee misspending.”

“First fence in San Diego did little to stop immigration until Operation Gatekeeper added border patrol agents to the area.”

“The current border wall plan…is more likely to pump money into an ineffective project…”

And they are:

Bishop of Brownsville Raymundo J. Pena

Betty Perez, local land owner, member of the No Border Wall Coalition

Rosemary Jenks of Numbers USA, immigration think tank

Joan Neuhaus Schaan, Houston-Harris Homeland Security Advisory Council

Pena: “No wall is high enough or wide enough to wall out the economic forces that bring undocumented immigrants into this country.”

Perez, whose ancestors were recipients of a Spanish land grant: “The longer you hold onto the land, the more the land becomes who you are.

“The wall and levee-wall (in Hidalgo County) will devastate the Valley’s ecological corridor.”

Jenks: Shows a map of the impact of illegal immigration on the Cabeza Prieta refuge in Arizona.

“Illegal immigration turned a pristine refuge into a trash-strewn war zone.”

She shows photos of cars “often full of drugs” abandoned on the refuge.

Neuhaus Schaan: “Criminal organizations outman and outgun law enforcement.”

“Ranch owners have trouble leaving their ranches unattended.”

Q & A Time:

Grijalva addresses the bishop. “Do you think people who don’t live along the border perhaps have the wrong impression of what these border communities are?”

Pena: “I think that the sister cities that exist along the border in many respects are one city–most of them legally, some of the illegally, to visit family.

“The wall in Texas, like the one currently in Arizona, would be very destructive to our families and our businesses.”

Tancredo challenges Bishop Pena:

“Do you think a border should exist?” he asks. “A fence might be the most humane to protect that border–because it will stop rapes and murders.”

Before Pena can respond, Tancredo moves on to the next question.

Hunter also addresses Pena.

“Maybe you should talk to bishops in the San Diego area,” he said, alluding to decreases in crime after a double fence was built in his district.

The panels of congressmen and witnesses appear to be split when it comes to their positions on the fence–this should make the next few hours interesting.

Now it’s time for congressmen to ask questions of border patrol officials, among others…

Grijalva jumps right in. He asks why some areas along the border (like River Bend Country Club) have been exempted from fencing…

Vitello, the BP chief, says that the fence’s path was determined after evaluating where security concerns were present.

Now Bordallo asks questions–again of Vitello. It looks like it’s going to be a long afternoon for him.

She implies that the federal government did an inadequate job of meeting with communities along the border. The audience in SET-B is eating this up.

Vitello says there are 400 landowners who will be affected by the fence. Of those, he says, about 270 are ready to proceed. As far as the Herald knows, these are new numbers.

Now’s it Tancredo’s turn to ask questions…

He questions Ned Norris of the Tohono O’odham nation.

Norris’ tribe lives on the border in Arizona. He says environmental and archaelogical surveys have been inadequate. Tancredo wants to know if a fence won’t leave the tribe better off. He mentions intra-tribe drug problems.

Norris maintains that the only way to move forward is to be allowed to “come to the table with the federal government.”

Napolitano asks Norris “were you asked for input?”

“We had some impact to share thoughts and positions,” he said. Earlier, Norris mentioned that a tribal graveyard was destroyed by officials in charge of fence construction.

Napolitano wants Norris to discuss how his concerns have been ignored by DHS. Her own position on the fence is thinly veiled in the question’s language.

Hunter asks Norris almost the same as question as Tancredo did a few minutes ago. “What if the fence had points of entry?” Hunter asks. “Would that work for the tribe.”

“We didn’t cross the border, Norris tells Hunter. “The border crossed us.”

“We’ve had access to the river since time immemorial,” he said. “And we don’t think a fence is the answer.”

Cong. Reyes mentions his respect for BP agents, but says of Vitello:

“He’s going to toe the party line–he’s got to if he wants to maintain his job as chief of the sector.”

It might be the best line of the hearing so far. The crowd laughs. I can’t make out Vitello’s reaction.

Now it’s Cong. Faleomavaega of America Samoa’s turn. He asks the DOI rep. “If the fence is not built by the end of 2008, will all hell break lose?”

DOI rep: “Sir, I don’t have the answer to that question.”

Vitello responds with some more helpful numbers: of the 316 miles along the border in the RGV sector, there will only be 70 miles of fencing.

Now Ortiz’s turn.

“We have created a big funnel. WIth a 2,000 mile but 700 miles of fencing…they don’t think they can around those fences?” He asks the question to no one in particular. Now a question about the Canadian border.

Vitello: Might not be same kind of tactical infrastructure on the northern border, but it will be a part of the solution there, too.”

He reiterates: “The solution is not just walls and fences.”

Now Ortiz digresses, asking about OTMs (Other Than Mexicans) apprehended along the border.

Vitello: The policy of giving OTMs court dates (policy nicknamed “catch and release”) instead of detaining them has ended.

Ortiz’s point is that thousands of people came through during the life of the “catch and release” policy.  In the fence, he says, politicians have mistakenly “seen the light.”

First we hear from a member of the Department of the Interior, who calls calls the effect of the fence “a mixed bag of environmental benefits and adverse affects.”

Next is Ronald Vitello, head of RGV’s Border Patrol. Vitello discusses the fence’s importance to border security, though he says it won’t be enough on it own. It must be complemented by BP deployment.

He also says alignment has changed to reflect community and environmental concerns.

Chad Foster, mayor of Eagle Pass, has long been one of the fence’s biggest critics.  Eagle Pass was the first entity sued by the federal government over land for the fence.
“We’ve met with Sec. Chertoff…and he said Congress tied his hands (with waivers).”

“Most illegals enter through ports of entry,” Foster said. “No border fence will solve these problems.”

Dr. Juliet Garcia, UTB’s President,  is up next.

She outlines the university’s interactions with the federal government over the fence.

“We could not in good conscience sign the document granting right of entry (to federal surveyors).”

“Seizing land for a border fence poses a great risk to our property investment,” Garcia said.  “To support a plan that would build an 18-foot-high steel barrier between two friendly countries would directly contravene our mission and destroy the campus climate…”