Property rights versus the wall

Imagine that you own 100 acres of land on which are a few buildings and other improvements. After a short absence, you return to discover that someone has cut down trees, mown brush and widened a private road that crosses your land. You also find surveyor flags here and there on your property. With a little investigation, you discover that a government agency is responsible for these trespasses and property destruction. Upon contacting the government agency, you are informed that something referred to as “sensors” have been placed at undisclosed locations on your property. Over the succeeding days and weeks, you witness government employees stationed on your property, and on one occasion you are followed and temporarily detained by these officials.

Imagine also — and this should be more easily imagined — that you file a complaint in court to enjoin further occupation of your property and seeking damages for the property destruction that has occurred. On these facts, surely the court will render judgment in your favor.

{mosads}Well, no. Not according to federal district court Judge Richard J. Leon’s Valentine’s Day ruling in North American Butterfly Association v. Kirstjen M. Nielsen (Department of Homeland Security secretary). The scenario stated above is what the North American Butterfly Association (NABA) alleges in support of its claim that the government has violated its Fourth Amendment right to be free from unwarranted searches and its Fifth Amendment rights to due process and just compensation for the taking of private property. Leon granted the government’s motion to dismiss both claims. 

What is the government doing on NABA’s property? It is preparing to build a wall. Not just any wall, but “the wall.”

The butterfly sanctuary happens to be located near the United States-Mexico border. The Illegal Immigration Reform and Immigrant Responsibility Act, authorizes the Secretary to “waive all legal requirements . . . necessary to ensure expeditious construction of physical barriers and roads along the United States-Mexico border.” This waiver, enacted by Congress, explains Leon’s dismissal of NABA’s claims that the government has violated the National Environmental Policy Act and the Endangered Species Act. But it does not justify the dismissal of NABA’s Fourth and Fifth Amendment claims.

Because NABA’s property is unfenced and open to the public, Leon concludes that it is subject to the “open field” exception to the Fourth Amendment. And because the property is within 25 miles of the border, the judge finds that Congress has authorized unwarranted access to NABA’s lands. But Congress authorized access “for the purpose of patrolling the border to prevent the illegal entry of aliens” — not for the purpose of preparing to build a wall.

More concerning is the court’s ruling that NABA’s takings claim is not ripe for adjudication. How can it not be ripe? The government is occupying and has destroyed some of NABA’s property. The judge cites the U.S. Supreme Court holding in Texas v. United States (1998) that “a claim is not ripe . . . if it rests upon contingent future events.” The wall may be contingent, but there is nothing in the future about what has already happened. The judge also relies on case law, including Williamson Country Regional Planning Commission v. Hamilton Bank of Johnson City (1985), holding that “a takings lawsuit is premature if brought before plaintiffs have sought compensation in the form of damages.” In other words, a taking has not occurred until the government or a court so concludes. Never mind that the government has cut down your trees, mown your brush, widened your road, placed sensors in unrevealed locations and stationed officials on your land.

The good news is that the Supreme Court has an opportunity to overrule Williamson this term with another case, Knick v. Township of Scott. Although the narrow ruling in Williamson only precludes federal courts from considering takings claims against local government before a state court has ruled, overruling Williamson would draw into question Leon’s conclusion that NABA must bring its takings claim in the Court of Federal Claims.

It would debunk the notion that, even if the government is physically occupying private property, a taking does not occur until the government or a court concludes that compensation is owed. If the justices need any persuading that Williamson was wrongly decided, the egregious reality of North American Butterfly Association’s treatment by the federal government should make the vote unanimous.

James L. Huffman is professor and dean emeritus of Lewis & Clark Law School and the author of “Private Property and the Constitution,” published in 2013.