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

Plaintiff, § NOTICE OF EX PARTE APPLICATION AND

v.
0.26 ACRES OF LAND, MORE OR LESS, SITUATED
IN CAMERON COUNTY, STATE OF TEXAS; AND
ELOISA G. TAMEZ, ET AL.
APPLICATION FOR A TEMPORARY
§ RESTRAINING ORDER AND ORDER TO
SHOW CAUSE RE PRELIMINARY
§ INJUNCTION; MEMORANDUM OF LAW
AND EXHIBITS IN SUPPORT OF
§ APPLICATION

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

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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. INTRODUCTION ........................................................................................................................................................ 4
II. ARGUMENT............................................................................................................................................................... 5
1. STANDARDS FOR I SSUING A TEMPORARY RESTRAINING ORDER ................................................. 5
2. THE PLAINTIFFS HAVE A SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS. ..................... 6
3. 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

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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

1
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.
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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

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 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

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/briefing-
papers.html) (study finds that "All income factors were higher in gaps [in the fence] as compared
to fence-designated block estimates").
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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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