IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION

UNITED STATES OF AMERICA,

§ CIVIL ACTION NO.: 1:08-CV-00351 § NOTICE OF EX PARTE APPLICATION AND APPLICATION FOR A TEMPORARY § RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY § INJUNCTION; MEMORANDUM OF LAW AND EXHIBITS IN SUPPORT OF § APPLICATION §

Plaintiff, v. 0.26 ACRES OF LAND, MORE OR LESS, SITUATED IN CAMERON COUNTY, STATE OF TEXAS; AND ELOISA G. TAMEZ, ET AL. Defendants.

UNITED STATES OF AMERICA,

§ CIVIL ACTION NO.: 1:08-CV-00309 § §

Plaintiff, v. 0.41 ACRES OF LAND, MORE OR LESS, SITUATED IN CAMERON COUNTY, STATE OF TEXAS; AND EDUARDO BENAVIDES, ET AL. Defendants.

§ § §

PLEASE TAKE NOTICE that on April 23, 2009 at 9:00 a.m. or as soon thereafter as counsel may be heard by way of a telephonic hearing, if such hearing is deemed necessary by the Court, the defendants will and do hereby apply for a temporary restraining order pursuant to Fed. R. Civ. Proc. 65(b) immediately restraining Plaintiff and its agents from continuing their unlawful possession of the land condemned in

these actions and from further constructing of the Border Security Fence, and preserving the status quo pending a hearing for preliminary injunction. This Application is made on the ground that the Plaintiff has violated this Court’s April 16, 2009 Orders, which require that the Plaintiff consult with the defendant landowners prior to entering the subject properties and commencing construction of the border fence. Defendant landowners will suffer imminent and irreparable injury if the Plaintiff is allowed to maintain possession and complete construction of the Border Security Fence in the next few days without first engaging in the consultation required by the 2008 Consolidated Appropriations Act, L. No. 110-161, § 564, 121 Stat. 1844, 2090-91 (2007) and by this Court’s Order of April 16, 2009. This Application is based on this Notice, the accompanying Memorandum of Points and Authorities, the attached Declaration of Peter Schey and related exhibits, and all other matters of record herein. A proposed Order is being lodged concurrently herewith. Counsel for defendant request that the Application be granted without a hearing, but if a hearing is required, counsel request permission to appear telephonically. Counsel for the Plaintiff has been notified of this Application telephonically, via correspondence, and by electronic service of a copy of this Application and the accompanying Memorandum of Law and Exhibits in Support of the Application. See Exhibit 1.

Dated: April 23, 2009.

Respectfully submitted, Peter A. Schey (Cal Bar #58232) Carlos Holguin (Cal Bar # 90754) Center for Human Rights and Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 Telephone: 388-8693, ext. 103 -2-

Facsimile: (213) 386-9484 James Harrington (Tex. Bar #09048500) South Texas Civil Rights Project P.O. Box 188 San Juan, Texas 78589 Telephone: (956)787-8171 Fax: (956) 787-6348

By

Peter Schey

Attorneys for Plaintiff

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Table of Contents
I. II. INTRODUCTION ........................................................................................................................................................ 4 ARGUMENT............................................................................................................................................................... 5 1. 2. 3. STANDARDS FOR I SSUING A TEMPORARY RESTRAINING ORDER ................................................. 5 THE PLAINTIFFS HAVE A SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS. ..................... 6 THE DEFENDANTS CAN SHOW A SUBSTANTIAL THREAT OF IMMEDIATE AND IRREPARABLE HARM FOR WHICH THEY HAVE NO ADEQUATE REMEDY AT LAW.................................................................... 11 4. THERE IS NO QUESTION THAT GREATER INJURY WILL RESULT FROM DENYING THE TEMPORARY RESTRAINING ORDER THAN FROM ITS BEING GRANTED . ...................................................................... 11 5. THE A TEMPORARY RESTRAINING ORDER WILL NOT DISSERVE THE PUBLIC INTEREST ............ 12 IV. CONCLUSION ........................................................................................................................................................... 13

Table of Authorities Cases

Canal Authority v. Callaway, 489 F.2d 567 (5th Cir. 1974)....................................... 5, 6 Clark v. Prichard, 812 F.2d 991, 993 (5th Cir. 1987) ..................................................... 5 Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers, 415 U.S. 423 (1974).......................................................................................................................... 5 King Aero. Commer. Corp. v. Al-Anwa Aviation, Inc., 2008 U.S. Dist. LEXIS 52538 (N.D. Tex. 2008)......................................................................................................... 5 Mississippi Power and Light Co. v. United Gas Pipeline, 760 F.2d 618 (5th Cir. 1985). 6
/// MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT FOF APPLICATION FOR TEMPORARY RESTRAINING ORDER

I.

INTRODUCTION On April 16, 2009, this Court issued Orders granting the plaintiff United States of

America possession of the properties sought in these actions. (“Order”). The Order includes unambiguous and obligatory preconditions requiring consultation by the Plaintiff with Defendants to be complied with prior to the Government exercising its right of possession, and obviously before beginning construction. In disregard of this -4-

Order, the Government commenced taking possession yesterday, and has begun construction of the Border Security Fence on the properties. The defendant landowners are therefore now moving for a Temporary Restraining Order requiring that the Government delay further possession and construction activities until the parties have complied with the April 16, 2009 Order’s consultation requirement. II. ARGUMENT 1. Standards for Issuing a Temporary Restraining Order

The purpose of a temporary restraining order is to “preserv[e] the status quo and prevent[] irreparable harm just so long as is necessary to hold a hearing, and no longer.” Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers, 415 U.S. 423, 439 (1974). “Any temporary restraining order, therefore, is a temporary measure to protect rights until a hearing can be held.” King Aero. Commer. Corp. v. Al-Anwa Aviation, Inc., 2008 U.S. Dist. LEXIS 52538, *7 (N.D. Tex. 2008). In order to prevail on an application for a TRO, a party must show “(i) a substantial likelihood of success on the merits; (ii) a substantial threat of immediate and irreparable harm for which it has no adequate remedy at law; (iii) that greater injury will result from denying the temporary restraining order than from its being granted; and (iv) that a temporary restraining order will not disserve the public interest.” Id. citing Clark v. Prichard, 812 F.2d 991, 993 (5th Cir. 1987); Canal Authority v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974) (en banc). The party requesting the TRO must satisfy each of the four elements. “The party seeking such relief must satisfy a cumulative burden of proving each of the four elements enumerated before a temporary restraining order or preliminary injunction can be granted.” Id., citing Mississippi Power and Light Co. v. United Gas Pipeline, 760 F.2d 618, 621 (5th Cir. 1985); Clark, 812 F.2d at 993.

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2.

The plaintiffs have a substantial likelihood of success on the merits.

This Court issued an Order granting the Government’s Motion for Immediate Possession on April 16, 2009. [Doc. 35]. That Order states that “the Defendant and all persons who own or claim ownership, possession and/or control of the property … must grant Plaintiff an estate in fee simple.” Order at 5. However, the Court went on to specifically order the Plaintiff to take certain steps prior to taking possession: Plaintiff is hereby ORDERED to consult with the landowners … prior to the exercising the rights given in this order and, if needed, during the exercise of these rights, to resolve: (1) when and how the United States will take possession of the property; (2) the steps the Plaintiff will take to minimize the impact on the environment, culture, commerce and quality of life for the Defendant; and (3) all duties owed by the Government to the Defendant arising as a result of the taking of a fee simple estate under applicable federal and state laws, including, but not limited to, the Uniform Relocation Assistance and Real Property Acquisition Act, if applicable. Order at 5 (emphasis added). Counsel for defendants promptly forwarded the Order to Dr. Tamez and asked her to as promptly as possible prepare a document setting forth her concerns as to how the fence would impact the environment, culture, commerce and quality of life and their proposals for steps the Government could take to minimize the impact the fence would have on the same. See Exhibit 1, Declaration of Peter Schey at ¶¶ 3-4. Dr. Tamez stated that she would submit such a document within a few days. Id. at ¶ 4. On the afternoon of April 21, 2009, Assistant United States Attorney Kevin C. Aiman, counsel for the United States in this action, sent two letters to counsel for the defendants. Exhibit 1. at ¶ 5 and Attachment A. In that letter, the United States stated that it had “immediate need for the property as construction activities are scheduled to begin.” Exhibit 1, Attachment A, at 1. It then set forth the steps to be taken to construct the Border Security Fence on the property. Id. “It is expected that this can be

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accomplished within short order, perhaps one week or less, and is anticipated to begin tomorrow.” Id. In this manner, defendant landowners possessing important historical, cultural, environmental, and unique indigenous concerns were given less than twenty-four hours of email only notice of impending possession and construction. The letter went on to list the unilateral steps that the Government was taking to ostensibly “minimize the impacts to the environment, culture, commerce, and quality of life….” Id. The letter set forth the following steps to be taken: An environmental stewardship plan (ESP) has been prepared. The ESP documents the potential impacts to the Rio Grande Valley (RGV) in conjunction with the border fence. Best management practices (BMP’s) have been incorporated into all construction contracts. The BMP’s provide guidelines to insure, to the extent practicable, minimal impact to the environment. The BMPs were prepared in coordination with various Federal and State agencies including but not limited to, US Fish and Wildlife Services, TX Park and Wildlife Department, and the State Historic Preservation Office. Environmental, biological and cultural, monitors will remain on site during on-going construction for the purposes of providing biological monitoring reports to the environmental team. Oversight of quality of life issues such as dust and noise abatement are a function of this team. Cultural impacts have been taken into consideration. Wherever practical, mitigation measures such as incorporation of wildlife crossings and the realignment of the fence to avoid habitat and cultural sites have been used to minimize the cultural impacts. Once construction is underway, on site construction inspectors assure compliance with the terms and conditions of the construction contract. Exhibit 1, Attachment A at 1-2. The word “consult” is absent from the letter. The letter never requests the defendant’s opinion on any of the relevant topics, including “when and how the United States will take possession of the property….” Order at 5. The Government simply declares by fiat that possession will begin in less that 24 hours and will involve immediate construction and that it has taken certain vague steps to address the

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requirements of this Court’s Order and the 2008 Consolidated Appropriations Act, L. No. 110-161, § 564, 121 Stat. 1844, 2090-91 (2007) (“Appropriations Act”). On the evening of April 22, 2009, the day after the Government sent its letters, Dr. Tamez observed that the fence had already been constructed on Mr. Benavides’ condemned land and that a large amount of building materials had been placed on her property and construction appeared imminent. Exhibit 1 at ¶ 8. Clearly, the Government had no intention of complying with this Court’s Order prior to taking possession of the property and beginning construction of the border fence. That same day, April 22, 2009, counsel for defendant forwarded correspondence urgently requesting that Government officials not take possession of the estate as set out in Schedules C, D, and E in the Plaintiff’s declaration of taking, and not take further steps to build the border fence on defendants’ two properties, until the parties had engaged in consultation as required by the Court’s April 16, 2009 Order. Exhibit 1 at ¶ 9 and Attachment B. The correspondence includes a document detailing the concerns of the landowners in relation to the issues outlined in this Court’s Order on which consultation is required. See attachments to Exhibit 1, Attachment B. Counsel for defendants informed counsel for the Plaintiff of Defendant landowners’ intention to seek a temporary restraining order unless the Plaintiff agrees to delay further possession of defendants’ land and construction pending consultations both in correspondence and a telephone message on April 22, 2009. Exhibit 1 ¶¶ 10-11.1 The language of the Order tracts the language of the consultation requirement in the 2008 Appropriations Act. The Act requires that “the Secretary of Homeland
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Notice was provided after the close of business because defendants’counsel only learned about Plaintiff’s actions after business hours when defendant landowner Dr. Tamez returned home to find that Government agents had entered her property and left large amounts of building materials for the border fence and had already started construction of the fence on defendant landowner Benavides’ land, which is close to Dr. Tamez’s land. -8-

Security shall consult with … property owners in the United States to minimize the impact on the environment, culture, commerce, and quality of life for the communities and residents located near the sites at which such fencing is to be constructed.” Id. § 564 (emphasis supplied). This Court has repeatedly held that the Government must demonstrate compliance with the consultation requirements prior to taking possession of the property: It is not incongruous for Congress to mandate a consultation clause yet not allow that clause to be a defense to a taking. Such a consultation does not need to occur before the taking is completed by pleadings, filings and orders from this Court, but rather Congress may mandate consultation before the United States exercises its right-of-entry onto the property under its newly-acquired interest in the property. This Court is empowered to provide terms and conditions when granting an order of possession following the filing of a declaration of taking that the United States must fulfill prior to entering onto the property. 40 U.S.C. § 3114(d)(1). 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. United States v. 1.04 Acres of Land, 538 F. Supp. 2d 995, 1014 (emphasis added, internal citations omitted). Indeed, as this Court has observed, the different stages of condemnation may require different consultations. Id. n. 12 (“given the nature of the eminent domain scheme implemented by the Government, there may, in fact, be two takings [one for the exploratory easement and one when the Government actually seeks to move forward on construction]. This may require multiple consultations in some cases.”). In short, the Court has insisted that the Government engage in the required consultations, and the Government has simply proceeded as if this Court’s Orders are meaningless, the Congress was wasting its time when it required consultation in the Appropriations Act, and the landowners’ rights and concerns based upon historical indigenous ties to the land are insignificant -9-

The Government’s failure to consult is particularly egregious in this instance because the Government proceeded to immediately begin construction on the property, in direct contravention of this Court’s repeated entreaties that the required consultation take place before the Government enters the property. See, United States v. 1.04 Acres of Land, 538 F. Supp. 2d at 1014 (“…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.” [emphasis added]); Order at 5 (“Plaintiff is hereby ORDERED to consult with the landowners … prior to exercising the right given in this order….” [emphasis added]). The Order sets forth three preconditions that must be satisfied prior to exercising the rights granted in the Order. First, the Government must consult with the defendant “when and how the United States will take possession of the property.” Order at 5. The Government did not do that. It simply announced that construction “is anticipated to begin tomorrow.” Exhibit 1, Attachment A, at 1. Second, the Government must consult with the defendant landowners regarding “the steps the Plaintiff will take to minimize the impact on the environment, culture, commerce and quality of life for the Defendant….” Order at 5. The Government did not do that. It simply sent forth vague steps it has unilaterally taken, none of which address any concerns raised by the defendants. Third, the Government must consult with the defendants regarding “all duties owed by the Government to the Defendant arising as a result of the taking of a fee simple estate under applicable federal and state laws, including, but not limited to, the Uniform Relocation Assistance and Real Property Acquisition Act, if applicable.” Order at 5. The Government did not do that. Indeed, the letter – the only communication

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from the Government since the issuance of the April 16, 2009 Order – does not mention the Uniform Relocation Assistance and Real Property Acquisition Act.2 Defendant landowners are likely to prevail on the issue of whether the Government has complied with the Court’s April 16, 2009 Order and the consultation requirement of § 564 of the Appropriations Act. 3. The defendants can show a substantial threat of immediate and irreparable harm for which they have no adequate remedy at law. The Government has already entered the defendant landowners’ properties and begun construction on the Border Security Fence. Exhibit 1 ¶ 8. The Government admits that the construction will be completed in less than a week. Exhibit 1, Attachment A at 1. If the Court does not grant this emergency request, the defendant landowners will obviously suffer irreparable damage by the time the defendants’ objections can be more fully heard. 4. There is no question that greater injury will result from denying the temporary restraining order than from its being granted.

The Government can show no significant injury from the granting of the requested temporary restraining order, which by law can remain in effect for no longer than ten days absent agreement of the parties or the entry of a preliminary injunction following a hearing. There has been no fence across these two properties for hundreds
2

The Government failed, for example, to comply with the Uniform Policies concerning offering to acquire the severed portion of defendant’s property: If the acquisition of only a portion of a property would leave the owner with an uneconomic remnant, the head of the Federal agency concerned shall offer to acquire the remnant. For the purposes of this Act, an uneconomic remnant is a parcel of real property in which the owner is left with an interest after the partial acquisition of the owner's property and which the head of the Federal agency concerned has determined has little or no value or utility to the owner. 42 U.S.C. § 4651 (9). Given the difficulties in accessing the severed portion separated by a secure fence with no immediate use of a gate, there can be no serious question that the

severed parcels will be “uneconomic remnant[s]” for the purposes of this statute.
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of years. A delay while the parties engage in the required consultations will maintain the status quo. The defendants will be irreparably injured if no stay is granted and the Government completes its fence. At that moment, there will be no more opportunity for the parties to consult on the required issues. 5. The a temporary restraining order will not disserve the public interest

The Government may argue that the public interest is best served by the completion of dozens of feet of fence across the two properties in question. However, as stated above, there has been no fence upon these properties for hundreds of years, nor has the Plaintiff moved expeditiously to obtain the legal right to possession of these lands. The Government waited for months after winning temporary possession for surveys before it sought permanent possession. Indeed, as we pointed out in defendants’ oppositions to the Plaintiff’s motions for permanent possession, the Plaintiff has entirely avoided any fencing whatsoever along the properties of golf courses and properties owned by wealthy landowners.3 There can be no serious claim that a brief delay to engage in mandated consultations would in any way harm the public interest, which in any event is always best served by the compliance with the laws enacted by Congress and duly issued Orders of the judiciary.

3

See Defendant’s Opposition to Plaintiff’s Motion for Immediate Possession, at 13-14; see also Gaines Wilson & Jude Benavides et al., An analysis of demographic disparities associated with the proposed U.S.-Mexico border fence in Cameron County, Texas, University of Texas, Brownsville (http://www.utexas.edu/law/academics/centers/humanrights/borderwall/analysis/briefingpapers.html) (study finds that "All income factors were higher in gaps [in the fence] as compared to fence-designated block estimates"). - 12 -

IV. CONCLUSION For the foregoing reasons, the defendants’ request for a Temporary Restraining Order should be granted. Dated: April 23, 2009. Respectfully submitted, Peter A. Schey (Cal Bar #58232) Center for Human Rights and Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 Telephone: 388-8693, ext. 103 Facsimile: (213) 386-9484 James Harrington (Tex. Bar #09048500) South Texas Civil Rights Project P.O. Box 188 San Juan, Texas 78589

By

Peter Schey Attorneys for Plaintiff

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PROOF OF SERVICE I, Christopher Scherer, declare and say as follows: 1. I am over the age of eighteen years and am not a party to this action. I am employed in the County of Los Angeles, State of California. My business address is 256 S. Occidental Blvd., Los Angeles, California, 90057, in said county and state. 2. I hereby certify that a true and correct copy of the foregoing DEFENDANT’S EX PARTE APPLICATION FOR A TEMPORARY RESTRAINING ORDER; MEMORANDUM AND EXHIBITS IN SUPPORT OF APPLICATION was served via the District Court’s electronic filing system on this 23th day of April, 2009. A courtesy copy was mailed to the District Court Clerk the same day. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this 23rd day of April, 2009, in Los Angeles, California.

_____________/s/____________________ Christopher Scherer ///

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