Case 1:08-cv-00427 Document 93 Filed in TXSD on 07/29/13 Page 1 of 16 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION __________________________________ ) UNITED STATES OF AMERICA ) ) ) CIVIL ACTION NO. VS. ) B-08-427 ) 15.919 ACRES OF LAND, ET AL ) __________________________________) 7 8 STATUS CONFERENCE BEFORE THE HONORABLE ANDREW S. HANEN JUNE 25, 2013 9 10 11 APPEARANCES: 12 13 For the Plaintiff: MR. DANIEL DAVID HU U.S. Attorneys Office 14 1000 Louisiana, Suite 2300 Houston, TX 77002 15 For the Plaintiff: MR. ERIC PAXTON WARNER U.S. Attorney's Office 600 E. Harrison, Suite 201 Brownsville, Texas 78520 For the Deft. Brownsville: MR. CHRISTOPHER D. PINEDA Guerra, Leeds, Sabo & Hernandez 1534 East 6th Street Suite 200 Brownsville, Texas 78520 For the Deft. Brownsville: MR. JOHN CHOSY Attorney At Law 1001 E. Elizabeth Street Brownsville, Texas 78522 16 17 18 19 20 21 22 23 24 25 1 Case 1:08-cv-00427 Document 93 Filed in TXSD on 07/29/13 Page 2 of 16 1 APPEARANCES (Continued): 2 For the Browne Trust: MR. DANIEL L. RENTFRO, JR. Law Office of Daniel Rentfro, Jr. 185 E. Ruben M. Torres Sr. Blvd., Brownsville, Texas 78520 6 Pro Se: MR. ANTHONY ZAVALETA 7 Appearing telephonically: 3 4 5 Ms. Harden 8 9 10 11 12 13 Transcribed by: 14 15 16 17 18 19 20 21 22 23 24 25 BARBARA BARNARD Official Court Reporter 600 E. Harrison, Box 301 Brownsville, Texas 78520 (956)548-2591 2 Case 1:08-cv-00427 Document 93 Filed in TXSD on 07/29/13 Page 3 of 16 1 2 3 4 THE COURT: Okay. 15.9-acres of land. Mr. Hu, welcome back. MR. HU: 6 THE COURT: Thank you, Your Honor. All right. MR. HU: 9 THE COURT: 10 Yes, Your Honor. Mr. Rentfro, who are you representing? MR. RENTFRO: I'm representing the Browne Trust. 11 There's actually three trusts: 12 and Mary Winans. 13 THE COURT: All right. MR. PINEDA: Tom Chosy for the City of Brownsville. THE COURT: 18 MR. ZAVALETA: Okay. And I have another individual there. Mr. Anthony Zavaleta representing my father, deceased. 20 THE COURT: 21 MR. ZAVALETA: 22 THE COURT: 23 And who do we have here, Chris Pineda and assistant city attorney 17 19 Agnes Browne, Frances Browne, Mr. Pineda? 15 16 You and Mr. Warner are representing the government? 8 14 Be seated. We're here in B-8-427, United States versus 5 7 All right. 3 phone? All right. Good. Welcome. Thank you. All right. And do we have anyone on the We have Ms. Harden on the phone? 24 MS. HARDEN: 25 THE COURT: Yes, Your Honor. Ms. Harden, can you hear us? 4 Case 1:08-cv-00427 Document 93 Filed in TXSD on 07/29/13 Page 4 of 16 1 MS. HARDEN: 2 THE COURT: 3 4 system. Yes, I can. We're experimenting. This is a new phone We're trying to see if it works. All right. I think I -- I did not call this meeting. 5 called this meeting. 6 we are and tell me where we need to go to resolve this. 7 MR. HU: Y'all Mr. Hu, you or Mr. Rentfro tell me where I believe Mr. Rentfro actually called the 8 meeting. But if the Court would like me to give you a status of 9 where we are on this case, I'd be pleased to do so. 10 THE COURT: 11 MR. HU: Go ahead. Your Honor, the process in this case has taken 12 a lot longer than anyone would have expected when we filed this 13 case five years ago. 14 some of the properties. 15 is twofold. 16 We are still in the process of appraising And the reason why it's taken so long First, when we took the property from the city, "we" meaning 17 the United States, we thought all the property was owned by the 18 city. 19 City of Brownsville, and it's numerous additional tracts. 20 have a map here just showing some of the tracts that -- As it turns out, it's owned by a lot of people plus the 21 THE COURT: 22 MR. HU: Yeah. Okay. I Show me what we're talking about. We're talking about the case that 23 originally encompassed all of the land that I'm pointing to here 24 all the way from -- is this Monsees or Impala Road? 25 Monsees Road all the way down past the Veteran's Bridge to the From Case 1:08-cv-00427 Document 93 Filed in TXSD on 07/29/13 Page 5 of 16 1 port of entry over there and then also the Hope Park area. 2 3 THE COURT: Mr. Warner, is that the Los Tomates Bridge right there on the far left? 4 MR. WARNER: 5 THE COURT: 6 MR. HU: Right here. Okay. All right. So what we -- but it turns out we thought all 7 the land where the fence is along here was owned by the city. 8 It's not. 9 the amendments -- the city plus about 257 other parties. It turns out it's owned by -- and we'll be getting to 10 THE COURT: 11 MR. HU: Perfect. So that has resulted in incredible 12 complications to get the land appraised, get all the proper 13 parties before the Court so that we can then take the case to 14 trial or resolve it. 15 Where we are is we are about to file our next amended 16 declaration of taking. 17 declaration, we intend to add 187 new parties. 18 be needed to clarify some of the takes with metes and bounds 19 descriptions. 20 Impala pump house where we inadvertently took half of a pump 21 house that belongs to the city. 22 want it. 23 24 25 5 I think it's the second. And in that This will also We're going to handle an issue involving the The federal government doesn't We want to give it back to the city. THE COURT: Why did you only take half? You didn't want the whole pump house? MR. HU: We didn't even want half actually. 6 Case 1:08-cv-00427 Document 93 Filed in TXSD on 07/29/13 Page 6 of 16 1 And also to take the fee of the land underneath the levee, 2 which was not done in some of the earlier pleadings. 3 properties that have been marked with stars here, we have had 4 our appraiser, Mr. Minor, go out on the property. 5 is almost done, but he can't finalize it until we've clarified 6 the taking; in other words, filed this latest amended 7 declaration of taking. 8 9 The His appraisal When that happens, we should be able to release at least three appraisals for three of the multitude of tracts. Once we 10 have those appraisals out, we can then start the process 11 hopefully of negotiating resolution of some of the cases. 12 until we get there, we really have no good vehicle to do so. 13 THE COURT: All right. But And do the, I guess, hundreds of 14 landowners include the area where the river is dipping way down 15 right here? 16 MR. HU: 17 THE COURT: 18 MR. HU: 19 Over here? Right. That's the fish. This is a Fish and Wildlife Preserve. 20 THE COURT: 21 MR. HU: Oh, okay. The hundreds of landowners include 22 Mr. Rentfro's clients, the FTB1071 tract; includes the Zavaleta 23 tract, tract FTB1070, as well as the city tracts and a number of 24 other tracts. I mean, a couple of these cases Mr. Warner is 25 representing. For example, I think you have Salinas and one of Case 1:08-cv-00427 Document 93 Filed in TXSD on 07/29/13 Page 7 of 16 1 2 7 the other tracts. MR. WARNER: I have this one. Your Honor, this is -- 3 the city is also in 08-CV-430, which is this tract, and 4 O8-CV-456, which is this red tract up here. 5 have packaged them all together, but we didn't realize the city 6 actually owned those tracts. 7 8 9 THE COURT: Okay. All right. They -- we would Mr. Rentfro, where are we as far as your viewpoint goes? MR. RENTFRO: Well, Your Honor, from our perspective, I 10 have a bit of a feeling of deja vu because my client was not 11 originally a party to this lawsuit. 12 filed against the City of Brownsville. 13 This lawsuit was originally Can I borrow this? 14 MR. WARNER: 15 MR. RENTFRO: Sure. And as I understand it, the lawsuit was 16 filed on the basis that this property in purple, 10781, was 17 owned by the City of Brownsville. 18 19 20 THE COURT: If y'all want to move around here, you're welcome to move where you can see. MR. RENTFRO: And then sometime later, it was discovered 21 it was owned by the Browne family, and my client was brought in. 22 That was in early 2010, three-and-a-half years ago. 23 THE COURT: 24 MR. RENTFRO: 25 Okay. We've been hearing for some time about an amended declaration of taking which really is the first step in 8 Case 1:08-cv-00427 Document 93 Filed in TXSD on 07/29/13 Page 8 of 16 1 order for Mr. Hue to get his appraisal, for us to get our 2 appraisal. 3 that, we certainly can't get a final report. 4 in the lawsuit for three-and-a-half years. 5 We have engaged an appraiser; but until we have The fence is there. And we've now been The fence has been on my client's land 6 for years, and we just feel like it's time to -- for the 7 government to come up with whatever amended declaration of 8 taking they're going to have and either get the case settled or 9 have a lawsuit. 10 11 12 THE COURT: All right. Mr. Pineda, what's the city's position? MR. PINEDA: Well, some of it echos Mr. Rentfro's 13 comments. The last status conference was over a year ago. I 14 think it was May 30th, and we heard some of the same comments 15 we're hearing today from the USA, that they just need a few more 16 months, I believed at that time, to finalize. 17 finalize an appraisal. 18 six months, I remember a figure. 19 that's what's holding up negotiations, I think, is having their 20 appraisals so that we know where these just compensation 21 estimates are coming from. 22 THE COURT: 23 MR. PINEDA: They needed to It may not be a few months, but at least So I think our concern is that All right. So to the extent I understand the USA is 24 needing more time to file this ATD and get the appraisals done, 25 I think we'd like for them to state for the record how much more Case 1:08-cv-00427 Document 93 Filed in TXSD on 07/29/13 Page 9 of 16 1 9 time they need. 2 THE COURT: Mr. Zavaleta, what's your position as a 3 landowner or are soon to -- inherited landowner, however you fit 4 in the picture. 5 MR. ZAVALETA: Well, I represent my family and my -- and 6 our position in the taking of the land is uncontested. 7 happy to give it for appropriate sale to the United States. 8 THE COURT: 9 MR. ZAVALETA: 10 THE COURT: So we're Okay. We're not contesting it. All right. Then that -- I guess, Mr. Hu, 11 that puts the ball back in your court as to when we can get off 12 center here and move forward. 13 MR. HU: Estimates that we've made before have proven to 14 be rather poor estimates, I think is the best way to 15 characterize it. 16 parties in the case, and I thought it would take only a few more 17 months to do the amended declaration of taking. 18 title company continues to do more title work, more owners show 19 up, and then we try to pare that down. 20 iteration is 187 new parties, so bringing a total number of 21 parties in this case, once it's all said and done, to about 257. 22 So we -- 23 THE COURT: When we were last here a year ago, we had 70 But as the And so the current Well, if -- let me ask this. I'm sorry to 24 interrupt, but let me ask this. If the fence is already built, 25 I mean, can't we prioritize, for instance, Mr. Rentfro's clients Case 1:08-cv-00427 Document 93 Filed in TXSD on 07/29/13 Page 10 of 16 10 1 to -- as far as any kind of appraisals and let's move down the 2 road on that, or Mr. Zavaleta's family's clients? 3 other 200 don't seem to be, you know, storming the steps of the 4 courthouse to say do something about it. 5 to -- 6 MR. HU: Yes, we can. I mean, the I mean, is there a way We can -- just like we've picked 7 three of the city tracts to start the appraisal process, then we 8 can certainly work with Mr. Rentfro and have his clients' 9 property appraised, Mr. Zavaleta's property appraised ahead of 10 11 the other landowners. That's not a problem at all. The concern I've got is I really am hesitant to make an 12 estimate about when we will file this amended declaration of 13 taking because my estimates in the past have not been very good. 14 They have been off by matters of months in the past. 15 16 17 THE COURT: All right. Let me -- explain to me what you foresee as why we're doing the amended taking. MR. HU: Well, we need to do it because originally when 18 we filed the suit, we didn't have metes and bounds descriptions 19 of the property, as the Court will recall. 20 THE COURT: 21 MR. HU: All right. We've now had those surveys done. We have the 22 metes and bounds descriptions. We've also made the policy 23 decision to take land underneath the levee, the fee under the 24 levee, so that had to be surveyed. 25 now we're at the process where the document containing all that That has now been done. So Case 1:08-cv-00427 Document 93 Filed in TXSD on 07/29/13 Page 11 of 16 11 1 information has been finished by the Corps of Engineers and is 2 now up in Washington at a different agency, my agency, the Land 3 Acquisition Section for review, and after that goes to Customs 4 Border Protection for review and then hopefully will be ready 5 for filing. 6 THE COURT: But unless I'm wrong, I mean, correct me. 7 Maybe I'm under a misapprehension. What we're really talking 8 about is making sure that the -- I don't want to say metes and 9 bounds, but let's say that our Is are dotted and our Ts are 10 crossed with the land that you've really already taken because 11 you've already built the fence. 12 MR. HU: That's true, Your Honor. Unfortunately, we're 13 a little bit behind the curve. 14 land that we haven't finished taking yet. 15 under the levee, we haven't taken that yet, yet it's been built 16 on and worked on. 17 18 THE COURT: All right. here's what I can't do, Mr. Hu. 19 MR. HU: 20 THE COURT: We actually built the fence on For example, the fee What can I do? I mean, I -- I can't let this just sit here. I understand. I mean, technically it's a 2008 case, so 21 like Mr. Rentfro was complaining his clients have been here for 22 three years, the case is actually getting, you know, up in the 23 five year range. 24 I have been willing to let these cases move at their own speed 25 because I didn't want to force landowners into have to hiring I have been -- I won't use the word content. Case 1:08-cv-00427 Document 93 Filed in TXSD on 07/29/13 Page 12 of 16 12 1 lawyers because, you know, I didn't think it was cost-effective 2 for them, but we ought to make this a high priority. 3 what is a reasonable estimate for you to get this amended taking 4 filed? 5 MR. HU: I mean, About 60 to 90 days is what we think it would 6 take. 7 since we took half of the Impala pump house, while we're doing 8 this amendment, it would be efficient to go ahead and fix that 9 problem sooner than later. 10 It may be longer. And again, because the problem is And the revestment takes is another complicated process within the department. 11 THE COURT: 12 MR. HU: I didn't hear that. The revestment of the land taken under the 13 Impala pump house over here would probably take a little bit of 14 time in addition. 15 60 to 90 days to get it done. 16 So it's hard to say, Judge, but I would think THE COURT: Can't we work on multiple tracts at the same 17 time? I mean -- I mean, your appraiser, whether he knows what 18 the technical, you know, 100 feet from the stone next to the 19 barn west, I mean, he knows in essence what you've taken. 20 MR. HU: 21 THE COURT: 22 23 Yes. I mean, especially with the tracts we're talking about, can't your appraiser already be appraising? MR. HU: He actually already has appraised the three 24 tracts with the stars on it. And once we file the amended 25 declaration of taking, we can release those appraisals. Case 1:08-cv-00427 Document 93 Filed in TXSD on 07/29/13 Page 13 of 16 1 2 THE COURT: But can't he already be working on Mr. Rentfro's clients and the city's clients and Mr. Zavaleta's? 3 MR. HU: 4 THE COURT: 5 Okay. We can certainly have him out there, yes. All right. Let's do this. I'm going to give y'all 75 days to file the amended taking. 6 MR. HU: 7 THE COURT: To file the amended declaration of taking? I'm sorry, yes. But in the meantime, let's 8 go ahead and get the appraisers out there. 9 the amended declaration of taking was going to take another Now, I understand if 10 thousand acres or something. 11 But, I mean, basically what you're doing is cleaning up the 12 legal description for what you've already taken. 13 MR. HU: 14 taking is out. 15 taken. 16 13 That might cause him to wait. That's right. The draft amended declaration of We -- we know what we're going to take or have THE COURT: All right. And you can provide that to your 17 appraiser, and he can go ahead and get started on these three 18 pieces of -- there are more than three pieces, I understand, but 19 these three landowners. 20 MR. HU: We've actually already done a number of the 21 city's tracts, but we can certainly work on the Browne and 22 Zavaleta tracts. 23 THE COURT: All right. 24 and move on it. 25 status conference at -- Cristi? Let's do that. And here's what I want to do. Let's go ahead I want to hold a Case 1:08-cv-00427 Document 93 Filed in TXSD on 07/29/13 Page 14 of 16 1 2 14 (Discussion off the record between clerk and judge.) THE COURT: At 1:30 on August 26th. And by that time, I 3 want to -- I want y'all to either tell me that -- that you've 4 moved down the line, your appraiser has been working, the 5 amended declaration has been filed, and/or I'm going to enter a 6 scheduling order that sets this for trial. 7 Now, I said and/or on purpose because I can see there being 8 circumstances where you might have already done that and I still 9 want to set it for trial. But what I'm hopeful is what you're 10 going to tell me is that you filed the amended declaration and 11 that your appraiser is working on it and that y'all are talking, 12 at the talking stage at that time. 13 perhaps will wait until you're done talking to see if you're 14 successful or not before I set these for trial. 15 ahead and get these resolved. 16 And then I, you know, But let's go And, Mr. Hu, you know what I'm talking about, about 17 prioritizing these pieces of property. 18 know, both the Court and the government has an interest in all 19 the pieces of property being resolved, but why don't we -- you 20 know, we're going to be the example that proves the old saying 21 to be true: 22 that they can -- they can go on with their lives, okay? 23 Now, obviously, you Let's get the squeaky wheels taken care of first so MR. HU: Your Honor, I hate to bring this up, but 24 August 26th is the first day of HISD in Houston. Would it be 25 possible to do the hearing a little bit later in the day so I Case 1:08-cv-00427 Document 93 Filed in TXSD on 07/29/13 Page 15 of 16 1 15 can take care of something in the morning? 2 THE COURT: 3 MR. HU: 4 MR. PINEDA: Sure. 3:00, does that work? That would work better. Your Honor, I have a question. I just want 5 to confirm, is the City of Brownsville also going to be on this 6 priority list in addition to the landowners? 7 THE COURT: 8 MR. HU: 9 10 Yes. As soon as the ATD is filed, Mr. Pineda, we intend to release the appraisals we've already done on the city property. 11 MR. PINEDA: 12 THE COURT: Okay. I guess maybe I was under the misimpression 13 that there were more properties involved in this. 14 have more involved in this? 15 MR. HU: 16 and 3009 tract. They do, Your Honor. Does the city They have the 4001 tract We can go ahead and start that process as well. 17 THE COURT: 18 MR. HU: 19 THE COURT: Okay. I want to prioritize those as well. Okay. All right. We'll come back August 26th. 20 And I'm hoping what you'll do is you'll call Cristi and tell me 21 you've worked this all out. 22 know, let's go -- you can plan on me going ahead and putting 23 some kind of schedule in place, because if we're not moving 24 forward on these on an informal basis, then we need to be moving 25 forward on a formal basis, okay? But having -- if that fails, you Case 1:08-cv-00427 Document 93 Filed in TXSD on 07/29/13 Page 16 of 16 1 16 Mr. Rentfro, anything else? 2 MR. RENTFRO: No, that's all. Mr. Hu has been very 3 cooperative. Certainly neither Mr. Hu or Mr. Warner do we blame 4 for any of this. 5 amended declaration is going to make, as you said, a thousand 6 acre difference to our tract, because we have engaged an 7 appraiser, but we don't want him to have to provide two reports. It will be helpful the sooner we know if this 8 THE COURT: 9 MR. HU: 10 I don't believe it will. THE COURT: All right. Mr. Pineda, anything else from the city? 13 MR. PINEDA: 14 THE COURT: 15 MR. ZAVALETA: 16 THE COURT: 17 Nothing further. Mr. Zavaleta, anything else? No, sir. No, sir. Thank you. Thank y'all. * * * 18 (End of requested transcript) 19 20 I think it's just the fee end of the levee for your tract. 11 12 Exactly. -oOoI certify that the foregoing is a correct transcript from 21 the record of proceedings in the above matter. 22 Date: July 25, 2013 23 24 25 /s/________________________ Signature of Court Reporter Barbara Barnard