Government lawyers tasked with carrying out President Trump’s quest to build a wall across the U.S.-Mexico border inhabit an unlikely corner of the Justice Department, the Environment and Natural Resources Division.
Major legal debates about the enhanced border wall center on presidential authority, congressional appropriations and the Constitution. But on the ground, federal officials’ first order of business is to sort out the basics: Who owns the land and how can the government take it?
A special unit of ENRD attorneys oversee that process. Though the division is best known today for its work enforcing environmental laws and defending related agencies in court, it originated from a DOJ team focused on land disputes in the West.
Today, those lawyers are part of the environment division’s Land Acquisition Section. They’re charged with scooping up new real estate via eminent domain so the feds can build projects as varied as an expansion of Arlington National Cemetery or a new agency outpost in the suburbs.
The section is staffed by two dozen professionals, a mix of lawyers, paralegals and real estate experts. They are all career employees, with a section leader who reports to a high-ranking political official in the division.
For the border wall, the team helps the government acquire land for new barriers, access roads, security features, and even housing for U.S. Customs and Border Patrol agents. The environment division lawyers, officials from other agencies and local U.S. attorney offices often work together to secure all the property needed.
They follow a careful and sometimes tedious process of surveying land, researching ownership titles, assessing what to pay landowners as "just compensation" under the Fifth Amendment and ultimately going to court to take the land.
"Obviously the border wall is one of the president’s priorities, and so all of the officials from career officials to political officials in the civil division or the environment division, everyone is working very hard on this as a high-priority item," said Assistant Attorney General Jeffrey Bossert Clark, who leads the environment division.
Clark and deputy Jonathan Brightbill, who oversees the Land Acquisition Section, sat down with E&E News last week to discuss their team’s role in building the border wall.
DOJ’s environment division has a history of handling eminent domain issues. Can you tell me more about that?
Clark: The story I always tell about it is that even when I was clerking [for a federal appellate judge], we had some prominent cases that involved the environment division back in the mid-’90s, and my judge would always call it the lands division. And I’d say, "Judge, it’s the Environment and Natural Resources Division." The judge would say … "Yeah, but we always just called it the lands division. They had all kinds of new-fangled titles for it that would change over time, but we always thought of it as the lands division."
And that’s where it started. We had less than 10 attorneys when the division was created, and it was really focused on issues like eminent domain, on issues like Indian lands, on issues of managing public lands under mostly the Interior Department at the time. That’s continued to be a large part of our practice. It’s retained in our historic name that we are the Environment and Natural Resources Division, so the lands part is in the Natural Resources part.
We have a gigantic manual about how to do land appraisal properly, what the legal rules are that bear on exercising the power of eminent domain. There are a total of about 25 people who work in the Land Acquisition Section, and it includes not just lawyers and paralegals, but also expert real estate appraisers because that’s demanded for the work.
[Border wall projects] go all the way back to Bush 43; those projects have been around for a long time. It’s only recently that they’ve become more controversial. We do soup to nuts on that. We partner with the local U.S. attorneys offices, as well. They will bring eminent domain cases, too. But they’re not as often repeat players, and they don’t have the same centralized expertise that we have, so we’ll help them with more complicated cases so we can expand our influence.
It’s really not all that different from the model we have in terms of environmental crimes, where environmental crimes can be prosecuted by any U.S. attorney, and they are. But we run training exercises to go to the districts, help them understand when we have an enforcement initiative.
So the same thing happens on the lands side. We’ve been involved in that border wall, which now, it’s hard to imagine, but that goes back more than two decades. It’s been something we’ve been working on for a long time.
They’re working on eminent domain acquisitions across the whole span of the federal government. We have the ability to work with [Customs and Border Patrol] to get more resources as needed on that. We’re actively working to acquire land whenever the process of the departments that are taking it — whether in the border wall context or other contexts — really ripens sufficiently that then we start to consult with them about how to do the taking, how to do the title searches.
And you’ve visited the border recently, correct?
Clark: John [Brightbill] and I had gone to the border in November. We went to the Rio Grande Valley sector, and one of the things that we were talking with the local U.S. attorney’s office lawyers down there is that in that particular county, the land records are not excellent. It’s not what Fairfax County, Va., land records would be.
So when you do the title research, even that is just a major undertaking to figure out who owns the land. And we have situations where there are tribal lands involved, there are Spanish land grants involved, it creates a lot of interesting historical questions to look at how something that was originally part of Mexico or even part of Spain at some point eventually became part of the United States, and then how a particular landowner came into their title.
Brightbill: So you could have land that was acquired by a family in Texas from Spanish land grants and they’ve never recorded the passage of the land down through the family. So you don’t know who the descendants are from the original first person who received the land grant is today to be able to essentially tender them the just compensation to acquire the land.
Any other trips on the horizon?
Clark: I don’t have any immediate plans, and as you know our regulatory defense docket is getting hot these days. I wouldn’t be averse to going down there. I think if I went there I would want to look at a different sector, I’d want to go to Arizona. John has been both to Arizona now, and then together we went to the Rio Grande area.
Brightbill: I’ve been to more places along the border where the walls have been — Arizona, San Diego sectors, the Rio Grande sectors. There are cases where individual issues have been raised that are more interesting, and it’s really very helpful to be on the ground and to see the ground in terms of being able to assess valuation and make judgments as to what the risks are relating to various potential claims of valuation and how those cases are going to get tried.
How does the land taking process work for the border wall?
Clark: It’s an iterative process. [Agencies] identify what their needs are and where the land roughly lies, and then our lawyers go to work to start helping them execute on the take, how to value the land, how much money would we need to put into escrow initially based on our analysis of what the land’s worth — because obviously the division takes very seriously its obligation on the United States’ behalf to provide just compensation to the owners of the land under the Fifth Amendment.
We want to be in a place where we don’t pay too little for the land because that would deprive them of their constitutional right, but we’re also tasked with being proper stewards of the federal government’s resources, so we shouldn’t be overpaying people for the land either. I think that we have a lot of expertise in how to help [client agencies] … especially when you’re talking about areas of land that have title problems, working through those issues in the federal courts, and then presenting them in persuasive ways to judges are where our comparative advantage comes in.
Like anything that involves Main Justice [DOJ’s central Washington, D.C., presence], we try to work on the biggest, most complicated, most cutting-edge things and then disperse our expertise. And things that are easier to do, which is not to say that the local U.S. attorneys offices don’t get some hard cases, obviously, but their lawyers are actually working with the same client agencies, consulting with us, consulting with them. It’s a cooperative process.
Brightbill: And to be clear, for instance, the Army Corps, Department of Defense, [Department of Homeland Security], any of the major agencies that have real estate acquisition authority, they have real estate lawyers in the context of their offices of general counsel and whatever else. Those lawyers, they’ll do a lot of the preliminary things, and then when it gets to the point when it has to go to court and when things have to be filed, that’s when you start to deal with the Department of Justice, who’s the delegated representative of the executive to actually appear in courts.
Land takings and the border wall are highly emotional and political issues. How does that affect your work?
Clark: We have an obligation, as part of doing just compensation and getting access rights, the need to talk to people and consult with them and the judges who are in charge of deciding what the just compensation is … they want to know that the people have been consulted with. … But you can consult with people, and it helps people to know that the government is not just running roughshod over them, so we take those obligations of consultation seriously, too.
We talk to the landowners about what their concerns are. That helps us both in terms of when we wind up in court and in terms of assuring the judges that we had a dialogue with people about what the project’s going to involve and making sure that their interests are taken into account.
You could imagine that a judge who might be more favorably inclined to the wall rather than not, so maybe there’s some correlation between that sort of a judge and a judge who’s interested in making sure people get just compensation. But I think for the most part our area of practice in the land acquisition section is highly professionalized and regularized, and there’s a lot of expert discipline to land valuation.
I don’t really see that as having a big ideological component.
Do most landowner challenges to border wall takings involve the price of the land or the government’s ability to take it?
Clark: For the most part, the vast majority of the cases the Land Acquisition Section works on are cases about the whole valuation issue. They’re not about the authority to take because the constitutional power to exercise eminent domain so clearly exists.
Brightbill: And because at this point Congress has set forth in its statutes pretty clear processes by which it occurs, so once the survey is done and a determination of just compensation is made, and that money is deposited into an account and then we can show the court that appropriate notice has been given to the landowner pursuant to the statute, the federal government, generally speaking, then has possession of the land.
Then while we can have cases that can go on for months and months or years, it’s not about whether or not the government’s going to get the land, because the government has the land at that point. Those cases go on because there are complicated issues of valuation that get raised and litigated.
Clark: That also ensures that people’s due process rights are protected. But there really aren’t constitutional challenges to the sufficiency of the general process because we have such a well-defined set of statutes like the Declaration of Taking Act, and there are even specialized provisions in the Federal Rules of Civil Procedure about eminent domain exercises.
DOJ’s environment lawyers are also involved in high-profile litigation over federal waivers that exempt border wall construction from the National Environmental Policy Act, Endangered Species Act and other laws. How does the Environment and Natural Resources Division share that work with DOJ’s Civil Division, which is taking the lead on those cases?
Clark: The Civil Division has the laboring oar on that because the nature of the challenges to the waivers are based on constitutional kinds of arguments that are more generic. They’re not based on environmental statutory-specific arguments.
But … I can give you an example about Eric Grant, one of my deputies. He went out for one of the early cases in the Northern District of California, and what he was arguing, in terms of our division of labor with the civil division, was about arguments about the environmental impacts of building the wall as a factor to try to justify getting some sort of injunctive relief or preliminary injunctive relief.
That’s come up again in a recent Center for Biological Diversity that could push the issue to the Supreme Court (E&E News PM, Aug. 6). Are you eager for the Supreme Court to weigh in to settle the issue? Nervous?
Clark: I think that the waivers are clear in terms of both the action that triggers them and the statute. So I think it’s a fight that I have tremendous confidence will come out the right way at the end of the day. How many stages of review that takes, I don’t have a perfect crystal ball on, so I wouldn’t venture any guess about.
This interview has been edited and condensed for clarity.