United States of America v. 26.000 Acres of Land, More or Less et al

Filing 11

Opposed MOTION FOR ORDER OF IMMEDIATE POSSESSION by United States of America, filed. Motion Docket Date 12/11/2018. (Attachments: # 1 Exhibit 1, # 2 Proposed Order)(Smith, John)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION
UNITED STATES OF AMERICA

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§
Plaintiff,
§
v.
§
CASE NO. 7:18-cv-303
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26.000 ACRES OF LAND, MORE OR
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LESS SITUATE IN HIDALGO COUNTY,
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STATE OF TEXAS; AND THE PHARR
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ORATORY OF ST. PHILIP NERI OF
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PONTIFICAL RITE, A TEXAS
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NON PROFIT CORPORATION,
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Defendants.
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______________________________________________________________________________
OPPOSED MOTION BY THE UNITED STATES OF AMERICA
FOR ORDER OF IMMEDIATE POSSESSION
______________________________________________________________________________
The United States moves for an Order requiring all Defendants to this action and all persons
in possession or control of the property described in the Complaint (Dkt. No. 1) and Declaration
of Taking (Dkt. No. 2) to immediately surrender possession of the condemned estate to the United
States.
I. INTRODUCTION
The United States requests an Order granting immediate possession of the condemned
estate. Acquiring this property is a necessary step in implementing the congressional directive, set
forth in the Complaint and Declaration of Taking, to secure the border between the United States
and Mexico. Congress provided funding for primary pedestrian levee fencing along the southwest
border in the Rio Grande Valley Sector. Per the appropriation, the United States plans to construct
25 miles that Congress specifically designated to be constructed in Hidalgo County, Texas, and
the identified tract listed in the style above is a part of the 25-mile designation. Time is of the
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essence. Accordingly, the United States respectfully requests this Court to enter an Order of
Immediate Possession on an expedited basis.
II. BACKGROUND FACTS
Pursuant to the Declaration of Taking Act, 40 U.S.C. § 3114, and Federal Rule of Civil
Procedure 71.1 (formerly Rule 71A), the United States filed a Complaint and a Declaration of
Taking and deposited $100.00 as estimated just compensation in the Registry of the Court to
acquire a temporary easement in the subject property. The United States will use the temporary
easement to conduct surveying, testing, and other investigatory work needed to plan the proposed
construction of roads, fencing, vehicle barriers, security lighting, and/or related structures to help
secure the United States-Mexico border within the State of Texas. See Dkt. No. 2, Schedules “B”
and “D”. Section 230(a) of the Fiscal Year 2018 Department of Homeland Security Appropriations
Act appropriated funding to acquire the interest sought in this action. See Dkt. No. 2, Schedule
“A”; see Consolidated Appropriations Act, 2018, Pub. L. 115-141, div. F, tit. II, 132 Stat. 348
(2018) (appropriating funds).
III. ARGUMENT AND AUTHORITIES
A.

The United States is entitled to immediate possession because the easement was
acquired under the Declaration of Taking Act.

The United States initiated this case by filing a Complaint and Declaration of Taking.
Subsequently, the United States deposited $100.00 as estimated just compensation into the registry
of the Court, as required by the Declaration of Taking Act (“Act”), 40 U.S.C. § 3114 (formerly 40
U.S.C. § 258a). The filing and deposit immediately vest title to the acquired property in the United
States. See 40 U.S.C. § 3114(b)(1). The Act specifically provides that upon the filing of the
declaration of taking, “the court may fix the time within which, and the terms on which, the parties
in possession shall be required to surrender possession to the petitioner . . .”. 40 U.S.C. §
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3114(d)(1). The purpose of the Declaration of Taking Act is to give the Government immediate
possession of the property and give the owner immediate compensation, in the form of estimated
compensation, in return for title to the land. United States v. Miller, 317 U.S. 369 (1943). The
Court explained,
[t]he purpose of the statute is twofold. First, to give the Government
immediate possession of the property and to relieve it of the burden
of interest . . . . Secondly, to give the former owner, if his title is
clear, immediate cash compensation to the extent of the
Government’s estimate of the value of the property.
Id. at 381 (emphasis added). The transfer of title is immediate upon the filing of the declaration
and deposit of estimated just compensation. See, e.g., Catlin v. United States, 324 U.S. 229, 238
(1945) (holding that a landowner may not delay or prevent the vesting of title by an interlocutory
appeal).
The Supreme Court reaffirmed that the Declaration of Taking Act immediately confers to
the United States title and a right to possession in Kirby Forest Industries, Inc. v. United States,
467 U.S. 1 (1984). There, the Court reviewed the methods by which the United States may
appropriate property, primarily comparing use of a declaration of taking with a “straightcondemnation” proceeding. Id. at 3-5. In a “straight condemnation,” the United States only files a
complaint in condemnation and only acquires title after the determination and payment of just
compensation. Id. at 4. In contrast, the Court noted that the Declaration of Taking Act is “[a] more
expeditious procedure . . . ”. Id. The Court held that upon the filing of a declaration of taking and
deposit of estimated just compensation, “[t]itle and right to possession thereupon vest immediately
in the United States.” Id. at 5. Further distinguishing a “straight-condemnation” case from one
brought under 40 U.S.C. § 3114, the Court explained that the adoption of the Declaration of Taking
Act was “for the purpose of affording the Government the option of peremptorily appropriating

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land prior to final judgment, thereby permitting immediate occupancy . . . ”. Id. at 12. Finally, as
stated in Narramore v. United States, Congress enacted the Declaration of Taking Act “[t]o give
the Federal Government immediate possession of condemned property and to avoid delays in
federal construction projects…”. 960 F.2d 1048, 1050 (Fed. Cir. 1992).
Accordingly, because the United States has acquired the property at issue under the
Declaration of Taking Act, the United States is entitled to immediate possession of the property.
See Miller, 317 U.S. at 381; Kirby Forest Indus., 467 U.S. at 5, 12.
B.

The United States needs immediate possession in order to meet the congressional
directive to construct fencing in the Rio Grande Valley Sector.

Congress has mandated that the Department of Homeland Security (“DHS”) achieve and
maintain operational control of the international land border. The Secure Fence Act of 2006, Pub.
L. 109-367, § 2, 120 Stat. 2638 (Oct. 26, 2006). As part of achieving operational control of the
border, the President’s Executive Order on Border Security and Immigration Enforcement
Improvements directs the Secretary of DHS (the “Secretary”) to take all appropriate steps to plan,
design, and construct a wall along the southern border. Executive Order 13767, § 4(a). Consistent
with Congress’ mandate that DHS achieve and maintain operational control of the border and the
President’s Executive Order, Congress has directed DHS to construct fencing and related
infrastructure along the United States-Mexico border, specifically in the Rio Grande Valley Sector.
See Consol. Appropriations Act, 2018, Pub. L. 115-141, 132 Stat. 348, div. F, Title II. The United
States needs immediate possession of the subject property in order to meet this congressional
directive. The Secretary has identified 25 miles in Hidalgo County, Texas, for the construction of
tactical infrastructure in order to improve security along the United States-Mexico border. The
United States needs to acquire the subject property in order to begin surveying, testing, and other
investigatory work needed to finalize the construction and design plans for fencing, roads, security
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lighting, and/or related structures in Hidalgo County, Texas. See Exhibit 1, Affidavit in Support
of Motion for Order of Immediate Possession; see Consol. Appropriations Act, 2018, Pub. L. 115141, 132 Stat. 348, div. F, Title II (appropriating funds for the current taking). As a result, acquiring
immediate possession of the subject property for the United States is a necessary step toward
meeting the Congressional directive that DHS construct fencing and related infrastructure along
the United States-Mexico border, specifically in the Rio Grande Valley Sector. This Court should
grant immediate possession of the easement sought based on the United States' demonstrated need
for immediate access.
IV. CERTIFICATE OF CONFERENCE
Individuals from the United States Customs and Border Protection and United States Army
Corps of Engineers met with a representative of The Pharr Oratory of St. Philip Neri of Pontifical
Rite on May 25, 2018, and explained the temporary estate sought, the surveying/testing process,
any potential impacts to the subject property, and answered any questions posed by the
representative. On June 28, 2018, AUSA John Smith and Attorney David Garza, met at the
property for a site visit. On July 11, 2018, AUSA John Smith provided Attorney David Garza with
a revised Right of Entry based on negotiations with the landowner; however, on July 11, 2018,
Attorney David Garza, on behalf of The Pharr Oratory of St. Philip Neri of Pontifical Rite declined
to sign the proposed Right of Entry.

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IV. CONCLUSION
Based on the foregoing, the United States submits that it is entitled to the entry of an order
of immediate possession and requests this Court grant its motion and enter an order of possession
giving the United States immediate possession of the temporary estate described in Schedule E of
the Declaration of Taking (Dkt. No. 2).
Respectfully submitted,
RYAN K. PATRICK
United States Attorney
Southern District of Texas
By:

s/ John A. Smith, III_________________
JOHN A. SMITH, III
Assistant United States Attorney
Southern District of Texas No. 8638
Texas Bar No. 18627450
One Shoreline Plaza
North Shoreline Blvd., Suite 500
Corpus Christi, Texas 78401
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
Attorney in Charge for Plaintiff
and
MEGAN EYES
Assistant United States Attorney
Southern District of Texas No. 3135118
Florida Bar No. 0105888
1701 W. Bus. Hwy. 83, Suite 600
McAllen, TX 78526
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
Attorney for Plaintiff
and

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JESSICA A. NATHAN
Assistant United States Attorney
Southern District of Texas No. 3313572
Texas Bar No. 24090291
1701 W. Bus. Hwy. 83, Suite 600
McAllen, TX 78526
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
Attorney for Plaintiff

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing OPPOSED MOTION OF THE UNITED
STATES OF AMERICA FOR ORDER OF IMMEDIATE POSSESSION was served via certified
mail, return receipt requested on this November 20, 2018, to all parties listed in Schedule G of the
Declaration of Taking (Dkt. No. 2).

By:

s/ John A. Smith, III_________________
JOHN A. SMITH, III
Assistant United States Attorney

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