A Border Wall Mess

| Walter Pincus
Walter Pincus
Contributing Sr. National Security Columnist, The Cipher Brief

OPINION — “There will not be another foot of [Trump’s border] wall constructed on my administration, No. 1,” President-elect Joe Biden pledged on August 4, during an interview on National Public Radio.

“End. Stop. Done. Over. Not going to do it. Withdraw the lawsuits. We’re out. We’re not going to confiscate the land,” Biden said. And now with 51 days remaining before Biden becomes President, the full range of what halting Trump’s $20 billion-plus project will entail, is slowly coming into view.

It will be easier said than done, and Mexico is not going to pay for it — U.S. taxpayers will.

But how do you keep the price from going up, with Trump still in the White House?

On November 12, BorderReport.com, based in Texas, published a story that the U.S. Army Corps of Engineers had an offer to sell the Salineño Wildlife Preserve’s full 2.5 acres along the Rio Grande River for a new segment of President Trump’s border wall.

The next day, the McAllen-based, nonprofit Valley Land Fund board of directors, which owns the property, met in an emergency meeting and decided not to sell the popular bird sanctuary. “At this point in time, all negotiations with the U.S. government are off the table,” the Fund’s Executive Director, Debralee Rodriguez, told BorderReport.com on November 13.

The Corps of Engineers had been negotiating the deal for months, as they have been with hundreds of private landowners along their Laredo sector (Clark County) and Rio Grande River Valley sector as part of a major pre-election push to start construction of new elements of Trump’s controversial wall.

Although Trump’s wall project has been completing segments in California, Arizona and New Mexico, where construction primarily has been on government-owned land, most of the properties needed along the Texas border are privately owned.

A newly-released report by the Government Accountability Office (GAO) said that as of July 2020, the plan had been to acquire 1,090 private tracts of land in South Texas, with 711 tracts in the Rio Grande sector, and another 379 in the Laredo sector.

Customs and Border Patrol (CPB) recognized it would be a long process and “planned for private land acquisition in south Texas to take 21 to 30 months compared to 12 months for comparable land acquisitions in other regions,” according to the GAO report.

Although wall construction cannot begin until real estate has been acquired and certified, CPB has been awarding construction contracts in the Laredo and Rio Grande Valley sectors before completion of the land acquisition process.

For example, in March 2020, an $180 million contract for four non-contiguous wall segments totaling 15 miles was awarded to Southwest Valley Constructors Company. One segment of the wall was in Starr County near Roma, Texas, and the Salineño Wildlife Preserve. The contract was to be funded with fiscal 2018 and fiscal 2019 CPB appropriations, but pending availability of the real estate. Another contract for the Laredo sector awarded in October for $283 million contract to build 27 miles of border wall was awarded to Fisher Sand & Gravel Company, but was not scheduled to begin construction until late 2021.

What happens if and when the incoming Biden administration cancels these construction contracts, and all others like it? What will be done with the ten wall construction projects in the Rio Grande Valley that are already underway with at least one halfway completed?

Of 81 private land tracts being sought in the Laredo sector for Defense Department funded wall projects, only 59 have achieved the first step toward acquisition as of July 2020 — that is a signed approval for the government to enter and look at the land. Entry allows the government to survey, map, and appraise the property.

After that, the CPB must arrange for contractors to conduct historical, cultural, and biological surveys of the land as part of the overall environmental review process, according to the GAO. Finally, the government “presents the Offer to Sell to the landowners…[which] outlines the terms and conditions associated with the purchase. If the landowners agree to the sale, the Offer to Sell will be signed by all landowners as well as the Border Patrol Wall Program Portfolio Manager,” according to the GAO.

Complications have developed in the form of concessions since there are questions of mineral and water rights to the land as well as irrigation or electric power access, cattle fencing and rights to maintain oil and gas pipelines.

In some cases, by law or treaty with Mexico, construction cannot be undertaken within 50 feet and up to a mile from the Rio Grande River. Overall, that would put some 40,000 acres of privately-owned land between the Trump wall and the river, according to the GAO. “One landowner we spoke to, whose residence lies between the proposed border barriers and the Rio Grande River, said that even though she is aware of the plans to install a nearby gate, she is concerned about access to her property,” the GAO said.

A myriad negotiations are already underway.

As of August 2020, according to the GAO, there were 81 cases in Federal court dealing with Rio Grande Valley properties. The government was either seeking a court order for temporary access to survey land (35 cases), or seeking permanent ownership of the land (46 cases).

From April 2020 through October 2020, the U.S. government filed 75 lawsuits to seize private land along the U.S.-Mexico border for the border wall, according to later data reviewed by CNN.

In addition, the Supreme Court in October agreed to hear arguments next year with the Trump Justice Department appealing a circuit court ruling in June that claims the government improperly diverted $2.5 billion of Pentagon counterdrug program money to build more than 100 miles of border wall. The lower court said only Congress could approve such a transfer.

In Webb County, CBP has issued contracts worth $1.05 billion to three construction companies to build approximately 69 miles of a 30-foot steel bollard wall, as well as construct roads and adding cameras and other surveillance technology.

Construction is slated to begin as early as January depending on the availability of land

Meanwhile in some areas, during this transition period until Biden takes office, local people want to take immediate action to halt wall activity.

On November 24, the Webb County Democratic Party Executive Committee unanimously passed a resolution calling on Biden to immediately declare a moratorium on border wall construction in the Laredo Sector and halt the government’s condemnation of public lands and private property for border wall construction, according to BorderReport.com. The Texas Democratic Party’s State Democratic Executive Committee is scheduled to act on the resolution at its December 5, 2020, meeting.

“President Trump might have boxed in Biden, requiring completion of certain portions of the wall whether he likes it or not,” Scott Amey, general counsel of the Project on Government Oversight, told ProPublica and the Texas Tribune last October.

“While ending construction is easy to say, it might not be so easy, because he’ll have to consider the phase of construction, gaps in the wall that could be exploited and the termination costs for existing contracts, which can come with a high price tag for taxpayers,” Amey said.

Fulfilling Biden’s simple campaign pledge that “not another foot” of Trump’s border wall will be constructed during his administration is going to be more complex, more difficult and more costly in time and money than the Candidate-Biden and his aides expected.

The Cipher Brief is a non-political publication dedicated to national security issues.  Many of our deeply experienced experts share differing opinions on issues of policy and national security. Individual opinions do not represent the opinions of all Cipher Brief Experts.

 

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The Author is Walter Pincus

Walter Pincus is a contributing senior national security columnist for The Cipher Brief. He spent forty years at The Washington Post, writing on topics from nuclear weapons to politics.  In 2002, he and a team of Post reporters won the Pulitzer Prize for national reporting. He also won an Emmy in 1981 and the 2010 Arthur Ross Award from the American Academy for Diplomacy.

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