Bulldozers sit idle at border amid legal confusion over Trump’s emergency

President Trump has declared a national emergency along the border with Mexico, but here in Texas’ Rio Grande Valley, there’s little sign of a government springing into action.

Earlier this week, two contractors surveyed a 150-foot-wide, half-mile-long stretch of land that had been cleared of brush so crews could build the first new border barrier of Trump’s presidency. But a large excavator nearby sat idle in the dirt.

Half a dozen lawsuits and constraints contained in the spending bill Congress passed earlier this month have combined to throw the planned construction into confusion and doubt.

Officials from Customs and Border Protection, the agency charged with building Trump’s border barrier, aren’t clear on what happens next.

“We’re just waiting to hear” from Washington, said Jason Montemayor, acting supervisor of the Border Patrol’s self-described “wall team” here.

“There’s nothing going on right now.”

In Washington on Tuesday, the House passed a resolution to overturn Trump’s declaration of a national emergency, with 13 Republicans joining the chamber’s Democrats in voting against Trump.

The disapproval resolution stands a good chance of passing the Senate in March, although even if that happens, the 182 Republicans who voted with Trump in the House on Tuesday would be more than enough to sustain the veto that the president has promised.

No construction for Trump’s wall has begun anywhere, although officials have started or completed fence replacement projects in California, Arizona, New Mexico and Texas.

Trump, who made building a border wall a central promise of his campaign, declared the emergency on Feb. 15 to bypass Congress and shift up to $6.6 billion, mostly from the Pentagon budget, to build — or rebuild — 234 miles of fencing.

Trump acted after Congress had appropriated only $1.375 billion for 55 miles of border barrier in the Rio Grande Valley, far less than he wanted.

But the 1,169-page appropriations bill Trump signed into law when he issued his emergency declaration also contained restrictions on construction in specific towns, parks and wildlife reserves along about 150 miles of the border in the Rio Grande Valley, which is the administration’s top priority for building new barriers. The restrictions have thwarted Trump’s efforts to build a wall there, at least for now.

An aide to Rep. Henry Cuellar (D-Texas), who helped negotiate the restrictions, said it’s not clear if the terms of the spending bill would override the emergency declaration, or vice versa, leaving landowners and town officials in limbo.

The legislation bars federal funding for fencing in the Santa Ana National Wildlife Refuge, the Bentsen-Rio Grande Valley State Park, La Lomita Historical Park, the National Butterfly Center and part of the Lower Rio Grande Valley National Wildlife Refuge. It also spares a SpaceX-owned facility and a tiny Catholic chapel.

The bill additionally limits spending for barriers in five border towns: Roma, Rio Grande City, Escobares, La Grulla and Salineno. Homeland Security officials are supposed to try to reach an agreement with those towns on the design and placement of any new barrier. Construction cannot begin before Sept. 30 unless they reach an agreement earlier. What happens if local and federal officials don’t reach an agreement remains uncertain.

The Border Patrol has yet to hold public meetings with landowners or post updated maps on where the new fences would be built. Communities are divided, with some landowners willing to sell their land and allow surveyors in and others insisting they will resist.

On Sunday, more than 60 people packed the Casa del Rio, a historic building in Roma, to seek answers from leaders of local legal and environmental groups.

The questions came quickly. Why were Border Patrol surveyors visiting local properties? Can residents refuse them entry? If the government offers to buy land, how much is “just compensation”?

And above all, as 90-year-old Elvira Canales asked after seeing surveyors on her land, “Where are they going to build the fence? Where?”

Noel Benavides, who said Border Patrol officials tried to survey his property, went to federal court last week and succeeded in having his case continued to May. When he met with Border Patrol officials last week, he said they showed him out-of-date maps.

Scott Nicol, co-chairman of the Sierra Club’s Borderlands Team, used a screen to project maps of the fence passing through Roma that he said he had obtained from construction contracts and photos of the brush-clearing in Mission.

“This is coming. They’re trying to do it,” he said. “The good news is, it is possible to stop these things.

“Figure out how you’re going to push back on this if you want to stop these walls from coming through here,” he added.

The crowd applauded.

Teresa Ramirez, whose late husband worked for the Border Patrol, said she had received a letter notifying her the fence will be built on her land. “I don’t want to have that in my backyard,” she said.

Although Texas shares 1,254 miles of border with Mexico, the most of any state along the 2,000-mile border, it has the fewest miles of fencing. That’s in large part because most of the land is privately owned.

Efren Olivares, a lawyer with the Texas Civil Rights Project, a nonprofit advocacy organization, told the crowd that landowners don’t have to sell their land. But he said that if they refuse, the federal government may sue to take it under eminent domain. Some in the room gasped.

Homeland Security has offered some landowners $36,200 for small parcels of land along the Rio Grande. Olivares urged them to negotiate, noting that during the last major fence-building project in 2006, some owners were paid millions of dollars.

“I encourage you not to take the first offer, because it’s likely not going to be fair,” he said. “There’s a reason the government isn’t here, and they come see you one by one.”

Adding to local concerns is a 1996 law that allows federal authorities to waive environmental and public-notice laws for border security. The Trump administration has cited the waiver six times in two years, more than any other president, and may do so again.

Members of Congress have introduced several measures that would rescind the waiver authority and block the government from seizing private land.

“The border wall threatens the rights of landowners all along our southern border,” Rep. Filemon Vela (D-Texas) said in a statement introducing his bill.

It’s unclear how the waiver authority and the national emergency declaration stack up against the appropriations bill. They pit Congress’ constitutional power of the purse against the president’s broad emergency and national security authority.

“This is not a question that’s ever come up before,” said Dinah Bear, an environmental lawyer who worked for 25 years for Republican and Democratic administrations.

She noted that the Trump administration has yet to order the bulldozers to move in any of the areas singled out for protection by Congress in the spending legislation.

“I don’t expect them to move in those areas,” she added. “In the end, they have to deal with appropriations committees for the entirety of their institutional lives.”