U.S. Border Patrol Liable for Placement of Underground Sensors on Private Land Along Border
Washington, D.C.—Today, the U.S. Court of Federal Claims held the U.S. Border Patrol liable for the physical taking of an easement over private property adjacent to the United States/Mexico border in the Otay Mesa area of San Diego County, California. Otay Mesa Property, L.P. v. United States, No.06-167L. Without the owners’ permission, the U.S. Border Patrol buried numerous motion sensors on private land located adjacent to the United States and Mexican border, and entered onto the private property when the sensors indicated movement of potential illegal aliens on the property.
“The government should be liable for the taking of an easement for this property since it now uses this property on a daily basis to carry out its important border monitoring activities associated with the placement of these underground sensors,” explained counsel for the landowners, Nancie G. Marzulla. “Now, the government will have to pay for the easement that it has physically taken on this valuable development property.”
The court rejected the Government’s argument that the statute of limitations had run on some of the claims because of a 1984 letter from the Border Patrol to the County of San Diego that generally referenced buried sensors in the general Otay Mesa area:
Court will not give notice effect to a letter 15 years prior to the 1999 installation of sensors on Plaintiffs’ property, where there is no showing that Plaintiffs received the letter. Since the sensors are buried below the ground except for a one-foot antenna, the Court will not place Plaintiffs on notice of the sensors because the Border Patrol’s use of the sensors was not “open and notorious” on Plaintiffs’ property. . . . Absent notice from the Border Patrol, Plaintiffs’ claims of an easement for the seismic sensors are not barred by the statute of limitations.
The plaintiffs, Otay Mesa Property L.P., Rancho Vista Del Mar, and Otay International LLC, filed their takings lawsuit in March 2006, seeking compensation for the physical taking of approximately 750 acres of valuable development land in San Diego County. The property is located at the end of the 14-mile border fencing system (primary and secondary} erected by the federal government. The court ordered the parties to report back on June 4, recommending a procedure for assessing appropriate damages against the United States. A trial on damages is expected later this year.
Marzulla Law is a Washington, D.C.-based law firm that represents landowners in complex takings litigation cases involving the federal government. For further information about Marzulla Law or this decision call (202) 822-6760, visit http://takeontakings.blogspot.com ,or go to www.marzullalaw.com.
Click here to read the complete trial opinion.
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