1 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE SOUTHERN DISTRICT OF TEXAS 3 MCALLEN DIVISION 4 UNITED STATES OF AMERICA 5 VERSUS 6 1.71 ACRES OF LAND, MORE OR LESS, ET AL § § § § § § CASE NO. 7:08-CV-00207 MCALLEN, TEXAS THURSDAY, NOVEMBER 15, 2018 10:39 A.M. TO 11:17 A.M. 7 8 STATUS CONFERENCE 9 BEFORE THE HONORABLE RANDY CRANE UNITED STATES DISTRICT JUDGE 10 11 12 APPEARANCES: SEE NEXT PAGE 13 COURT RECORDER: RICK RODRIGUEZ 14 INTERPRETER: ELENA MEDRANO 15 16 17 18 19 20 TRANSCRIPTION SERVICE BY: 21 JUDICIAL TRANSCRIBERS OF TEXAS, LLC 935 ELDRIDGE ROAD, #144 SUGAR LAND, TEXAS 77478 Tel: 281-277-5325 ▼ Fax: 281-277-0946 www.judicialtranscribers.com 22 23 24 25 Proceedings recorded by electronic sound recording; transcript produced by transcription service. JUDICIAL TRANSCRIBERS OF TEXAS, LLC 2 1 APPEARANCES: 2 FOR THE GOVERNMENT: 3 4 5 6 US ATTORNEY’S OFFICE Richard A. Kincheloe, Esq. 1000 Louisiana Street Suite 2300 Houston, Texas 77002 713-567-9422 US ATTORNEY’S OFFICE John Smith, Esq. Megan Eyes, Esq. 1701 W. US Hwy 83 Suite 600 McAllen, Texas 78501 7 8 9 10 (APPEARING TELEPHONICALLY): 11 FOR THE CITY OF ROMA: 12 13 14 BICKERSTAFF HEATH, ET AL Joshua Daniel Katz, Esq. 3711 S. MoPac Expwy. Building 1 Suite 300 Austin, Texas 78746 512-472-8021 15 16 17 18 19 20 21 22 23 24 25 JUDICIAL TRANSCRIBERS OF TEXAS, LLC 3 1 2 MCALLEN, TEXAS; THURSDAY, NOVEMBER 15, 2018; 10:39 A.M. (Official interpreter utilized for translation) 3 THE COURT: I’ll just begin by calling the case 4 first, this particular case, which is 08-CV-207, 5 United States of America versus 1.71 Acres of Land in 6 Starr County, More or Less, et al. 7 For the Record, I need announcements for who’s 8 here and wants to be acknowledged and certainly, if you’re 9 going to speak, you need to introduce yourself as well. 10 11 MR. SMITH: United States. 12 13 MR. KINCHELOE: MS. EYES: Good morning. Megan Eyes, on behalf of the United States. 16 THE COURT: 17 MR. KINCHELOE: 18 Good morning, Your Honor. Richard Kincheloe, also with the United States. 14 15 Your Honor, John Smith with the All right. And that depends on which case you’re calling. 19 THE COURT: Okay. 20 Mr. Reyes is here. That’s this case. The Court will acknowledge 21 that in this -- in the 207 case, Jose Guadalupe Reyes is 22 here. 23 24 25 Is there anyone here present on the 207 case on the defense side? MR. KATZ: Yes, Your Honor. This is Josh Katz, on JUDICIAL TRANSCRIBERS OF TEXAS, LLC 4 1 behalf of the City of Roma, Texas, appearing telephonically. 2 3 THE COURT: There are a number of persons that were named and served. 4 5 All right. Does the Government know why they’re not here? I mean, you did provide them notice. 6 MR. SMITH: And the Government provided notice, as 7 well, so when we got your Order, we made sure we got notice 8 out to everybody. 9 we have on border fence -- It’s kind of par for the course for what 10 THE COURT: Okay. 11 MR. SMITH: -- and whether people show up. Part 12 of this is a lot of Starr County is kind of on hold to see 13 where they’re going to take it to. 14 THE COURT: All right. If at any point Mr. Reyes 15 would like to interject something, please. 16 so. 17 MR. REYES: He’s free to do I just wanted to make sure that I was 18 able to come here and that they were also providing an 19 Interpreter and so now I’m just listening, see how things 20 go. 21 22 I definitely want to take my family and -THE COURT: Okay, great. All right. So the Government may proceed with their presentation. 23 MR. SMITH: Your Honor, real quick going through 24 these and then that way you can get to the specifics of each 25 case. So this map shows us west of Roma City. JUDICIAL TRANSCRIBERS OF TEXAS, LLC If you look 5 1 at the yellow down here, (indicating), that was the original 2 2008 case. That’s where they, you know -- 3 THE COURT: Uh-huh. 4 MR. SMITH: They had the flood of 2010. 5 this land is not here anymore. 6 the Gulf of Mexico. 7 8 A lot of So our take is, someplace in So what happened was: Border Patrol had to get with IBWC, the International Boundary Water Commission -- 9 THE COURT: Uh-huh. 10 MR. SMITH: -- and come up with a new line. And 11 so if you look at the blue up here, (indicating), Judge, as 12 we go through -- and if we can go to the next one -- so here 13 is in Roma. 14 side, it’s going to divert away from the old takes -- out. 15 16 THE COURT: So this looks like I guess a Is that present day accurate as to the where the river is? 19 20 Okay. Google map. 17 18 You can see on the left side, it’s -- northwest Is this post-erosion or is this pre-erosion? MR. SMITH: say. This map should be -- no, I wouldn’t This map is probably -- 21 THE COURT: Pre. 22 MR. SMITH: -- pre-erosion because of -- we 23 already had the -- as you can see, each property line in 24 here and we identified the tract number for those property 25 lines. So as you get to downtown Roma, you can see that the JUDICIAL TRANSCRIBERS OF TEXAS, LLC 6 1 alignment is going to be pretty much the same. There’s 2 other problems that we have with downtown Roma because you 3 have the cliffs of Roma, you have all those issues of can 4 you even build in that area -- 5 THE COURT: Right. 6 MR. SMITH: -- and we’re still dealing with that. 7 The only difference being for the blue, Border Patrol now 8 wants a 150-foot enforcement zone along with the fence so 9 the take might be a little bit wider. We’re waiting now. 10 We’re doing survey work for that part of it. So where you 11 have the blue, it may not be the exact same piece of 12 property that we’re taking as we did in 2008 even though 13 there’s the overlap that may actually extend out a little 14 bit. 15 THE COURT: Right. 16 MR. SMITH: And that is flexible depending on 17 whether it’s possible to have a 150-foot enforcement zone or 18 whether it’s even needed in that particular area. 19 enforcement zone will vary from tract to tract. 20 So that THE COURT: All right. 22 MR. SMITH: 150 on the river side of the fence. 23 THE COURT: Oh, on the river side of the fence. 24 MR. SMITH: Yeah. 25 THE COURT: Okay. 21 So generally 150 inside the fence. JUDICIAL TRANSCRIBERS OF TEXAS, LLC 7 1 MR. SMITH: So it’s an enforcement zone with -- 2 the project, assuming lights and cameras, so that you can 3 see in that area anybody approaching the fence so. 4 5 THE COURT: Okay. No other requirements inside of the fence on the -- opposite the river side of the fence? 6 MR. SMITH: No. 7 THE COURT: Okay. 8 MR. SMITH: Generally 20 feet on that side, 9 there’s usually a patrol road on that side. 10 THE COURT: Right. 11 MR. SMITH: And also a road for -- a lot of times 12 I see it. because -- Rick, can you go back one, please? 13 If you go back and you see how small these tracts, 14 everybody can’t have a gate and so a lot of times what you 15 do is you have a gate and then you give the adjoining 16 landowner an easement to travel along the fence to get to 17 the gate to drop -- if they have property on the river side 18 so that they can drop in and then drive back along the fence 19 and then down to their property. 20 And so that’s why there’s 20 feet on that one 21 side. There will be a patrol road plus an easement road for 22 landowners that have to get to a gate to get through. 23 THE COURT: All right. 24 MR. SMITH: The next one. 25 So we go on the east side of Roma and you can see it’s going to divert way up JUDICIAL TRANSCRIBERS OF TEXAS, LLC 8 1 here, (indicating). 2 one. 3 THE COURT: This part, (indicating), was the old Does this particular one have an 4 erosion issue, why it was redesigned in this -- if you’ll 5 back up? Anyway from the yellow -- no, the next one. 6 MR. SMITH: Go to the next one then. 7 THE COURT: Yeah. Was this -- I mean, this is a 8 big bend. 9 although it looks heavily vegetated. 10 11 All right. I can see where that might be an erosion issue MR. SMITH: So not so much as an erosion issue on this realignment. 12 THE COURT: This was just an enforcement -- 13 MR. SMITH: This is a floodplain. 14 THE COURT: -- in this area or it’s fence? 15 MR. SMITH: No, this is a floodplain. 16 THE COURT: Okay. 17 MR. SMITH: This is IBWC saying, “No, this is too 18 much in a floodplain and pursuant to the Treaty, we’re not 19 supposed to divert water into Mexico.” 20 moved away -- So IBWC wanted it 21 THE COURT: Sure. 22 MR. SMITH: -- from the river in this location -- 23 THE COURT: Okay. 24 MR. SMITH: -- up higher ground. 25 So it’s truly based on elevation of the ground and what the floodplain is. JUDICIAL TRANSCRIBERS OF TEXAS, LLC 9 1 Here we go south of Rio Grande City. You can see 2 there’s a big divergent on the south side from the original 3 take. 4 here, (indicating). 5 of erosion and lost a lot of land that was originally in the 6 take. 7 whole different dynamic now because you had a fence near the 8 river with no land on the other side. This was -- this area was a lot of erosion right So this bend in the river, we had a lot So now the plain is going up higher, brings in a 9 THE COURT: Sure. Right. 10 MR. SMITH: Now you’ve got landowners that are 11 going to possibly have a fence up higher with more land on 12 the river side. 13 THE COURT: And this is proposed, but yet unfunded 14 or is this for taking? I mean, I know you all are doing 15 survey work now but -- 16 MR. SMITH: Right. 17 THE COURT: -- what’s the -- 18 MR. SMITH: So here’s where we get to on -- 19 THE COURT: Okay. 20 MR. SMITH: -- that section of it. What we know, 21 based on funding that we got for 2018, we have 25 miles in 22 Hidalgo County. 23 Hidalgo County except for Santa Ana. 24 specifically excluded in the funding part of that. 25 other 25 miles will fill in everything in Hidalgo County That’s pretty easy. That’s all the rest of Santa Ana was JUDICIAL TRANSCRIBERS OF TEXAS, LLC So the 10 1 that was not done back in 2008. 2 THE COURT: Okay. 3 MR. SMITH: Twelve miles some place in Starr 4 County. 5 making promises because this thing has gone back and forth 6 and I would tell him something and then I’d have to come 7 back and tell him, “Judge, you know, that’s not right, this 8 has changed.” 9 I can’t -- long ago with Judge Hanen I stopped And so I can’t tell anybody in this room right now 10 where that 12 miles for sure will be. They’re doing the 11 surveys. 12 where they can build it and there will be 12 miles someplace 13 in Starr County, and so part of my problem. They’re going to determine where they need it and 14 THE COURT: Okay. 15 MR. SMITH: So as we can see in Rio Grande City, 16 it stays pretty much the same as it was except for the 17 enforcement zone. 18 thing. 19 here, (indicating), out of the floodplain. 20 that issue. 21 And then when you get southeast, same It’s diverting way away. And one second. 22 of Rio Grande City. 23 Mr. Guerra here? We’re going to go back up And so you had And then this is the very far end I can’t really read -- but is 24 Mr. Guerra? 25 MR. GUERRA: David Guerra. JUDICIAL TRANSCRIBERS OF TEXAS, LLC 11 1 THE COURT: All right. 2 MR. SMITH: David Guerra has some property out on 3 this end, (indicating), and we’ve gone, you know -- 4 unfortunately for him, we’ve gone back and forth because 5 originally it was down here, (indicating), and then we found 6 out, okay, they’re going to move this. 7 early on was, okay, we’ve come up with a new plan, we’re 8 going to move it. 9 not going to get funding to be able to build. And what happened And then there was a thought, well, we’re 10 THE COURT: Right. 11 MR. SMITH: So then what do we do? So we actually 12 talked with Mr. Guerra about possibly reverting property 13 back to him. 14 are going to build again. 15 Well, then the funding came so, okay, now we And so with a lot of these landowners we just 16 said, “You know, it’s up to you, but we’d like to put this 17 on hold because I don’t want to deal with this part for you 18 and then have to come back and take even more land. 19 rather just do an amended declaration of taking if I’m 20 taking two different sections for you.” 21 22 If you go back one for me to Roma. 25 So for instance, Judge, this is one’s a perfect one. 23 24 I’d Rick, whose property is that? Which -- who’s the landowner? MR. KINCHELOE: Mr. De Leron (phonetic). JUDICIAL TRANSCRIBERS OF TEXAS, LLC 12 1 MR. SMITH: De Leron. So this property was 2 originally here, (indicating), and then they’re coming back 3 and what they were going to end up doing is really 4 dissecting his property. 5 discussion with him because they also are doing the take 6 right here, (indicating), for a boat ramp, so it’s really 7 cutting up his property. 8 9 And so recently, we had the So now we’ve gotten in the negotiations and what we’re thinking is: why don’t we just -- he wants us to -- 10 “Just take my whole property.” 11 property in this area. 12 we’re going through -- And then you put the whole So those are some of the issues that 13 THE COURT: Uh-huh. 14 MR. SMITH: -- because of the divergent pass now 15 for the fence from the old take to the new take. 16 THE COURT: Okay. 17 MR. SMITH: We haven’t done a new take yet. 18 THE COURT: Okay. 19 MR. SMITH: Yeah. 20 THE COURT: So that’s going to be one of the big 21 22 You say, “New take,” but -- So new take would be -- issues here today is -MR. SMITH: Right. And so that’s that 23 terminology. I’m now talking -- sometimes we call it “lazy 24 take,” sometimes we call it “old take,” but what I’m talking 25 about is the 2008, 335 cases that we filed all at one time JUDICIAL TRANSCRIBERS OF TEXAS, LLC 13 1 and did that so. 2 3 THE COURT: Right, 14 of which are here today on the Docket. 4 MR. SMITH: Exactly. 5 THE COURT: More or Less. 6 MR. SMITH: Then this is Los Ebanos. And much of 7 Los Ebanos is actually going to be the same, except for -- 8 you can see there’s not much divergence around Los Ebanos. 9 And so we’ve dealt with a lot of those cases and actually 10 closed a lot of those cases in Los Ebanos. 11 Do we have this section up here on the next one? 12 One more. Okay. The one area that we’re going to have some 13 issues with is this section right here, (indicating). 14 though they put that as the new take line, there may be some 15 problems of actually being able to build a fence in that 16 area. 17 THE COURT: It’s too close to the river? 18 MR. SMITH: Too close to the river. Even There was 19 some erosion issues here as well. 20 not have to change. 21 until they get done with the new survey work, the new ROEs 22 that we’re dealing with. 23 THE COURT: And so this may or may I just can’t tell anybody at this point I mean, where else would you put it? 24 You’ve got a road running parallel to it right there, 25 (indicating). JUDICIAL TRANSCRIBERS OF TEXAS, LLC 14 1 MR. SMITH: Right there, (indicating), is a road. 2 This is a really high cliff though and it’s a very soft 3 cliff so the erosion hits pretty well. 4 eroded away because any place you had in the river where 5 there was a harsh bend like this, (indicating), a horseshoe 6 bend -- So a lot of this 7 THE COURT: Uh-huh. 8 MR. SMITH: -- in 2010 had a lot of erosion on the 9 outside of that horseshoe. 10 THE COURT: Are there any homes in this area? 11 MR. SMITH: There are a few homes in this area. 12 That’s another problem as you get up into here, are we going 13 to end up being too close to a home or through a home? 14 don’t like to do Relocation Act basis -- We 15 THE COURT: Yeah, for the other side of the home. 16 MR. SMITH: -- so we try to stay away from not 17 18 doing that. So those are all issues. There were some older buildings in here. There 19 was a Mennonite group at one time that had a church-owned 20 kind of group, but that’s been abandoned. 21 of this is pretty open. 22 that area right there, (indicating). 23 Starr County project. 24 so -- into this case. 25 THE COURT: And then the rest But there are a few houses right on That’s your -- the That’s just kind of the overview Okay. So what my goal is today is to JUDICIAL TRANSCRIBERS OF TEXAS, LLC 15 1 figure out what I can get rid of, what we can close, what 2 cases are very close to being resolved, and then deciding 3 which cases to keep open. 4 My thinking before taking the Bench here today is 5 that because I don’t have any -- none of us can predict -- 6 have any confidence to know whether there’s going to be 7 actual funding for this project in 2019 that’s -- I’m going 8 to treat this as this is it, this is all there is, and I 9 don’t want to keep open cases that might get funded in the 10 11 future. And so then we’re going to -- I just don’t want to 12 sit here in 2019, “Oh, we don’t get this year but we’re 13 going to get it next year.” 14 after the elections. 15 get -- I don’t want to engage in that. 16 These are 10-year-old cases. 17 want to do is say let’s get rid of it. 18 we can now and leave for another day a new action against 19 the then current title holders, start fresh with whatever 20 taking you all decide to do at that time. We probably have to wait till And if it goes one way, then you’ll I want -- what I Let’s resolve what 21 So to the extent you can -- 22 MR. SMITH: Your Honor -- 23 THE COURT: -- you all are abandoning prior taking 24 attempts, you’ll want wrap those things up, those cases up. 25 Tell me what’s wrong with that sort of plan. JUDICIAL TRANSCRIBERS OF TEXAS, LLC 16 1 MR. SMITH: Actually there’s nothing wrong with 2 that sort of plan, Your Honor. 3 the Army Corp has started what they call the “2019 ROE 4 Letters.” So to give you a head’s up, 5 THE COURT: Okay. Uh-huh. 6 MR. SMITH: I think Judge Hinojosa got one of the 7 2019 ROE Letters, so that’s going even farther out from 8 Roma. 9 THE COURT: The other side, yeah. 10 MR. SMITH: It’ll be more Starr County will be in 11 those 2019, but we don’t know on the funding on that, you 12 know, so I’m not making any plans. 13 the ROEs and we’re doing that process, but we don’t have 14 funding to actually build fence for those and so that’s 15 not -- the only suggestion that I would make is we are very 16 close so the construction Contract has been vetted now, it’s 17 been bid, so they’re going to start on some of these 18 construction areas. 19 an idea of where in Starr County -- I know we’re starting And so if by February, we should have 20 THE COURT: The 12 miles is going to be. 21 MR. SMITH: -- they’re looking at building. 22 will help us with all these landowners. 23 say, “Okay. 24 25 That Because then I can Yeah, we’re going to get it here.” Part of what the Army Corp and Border Patrol has said is, “Okay. Even with the new alignment, the old takes JUDICIAL TRANSCRIBERS OF TEXAS, LLC 17 1 to the extent they exist,” because in the original taking it 2 was for fence or roads to assist in the -- 3 THE COURT: Uh-huh. 4 MR. SMITH: So they may keep those as roads. 5 Those are all issues they’re trying to figure out, but they 6 don’t know that answer until they know where they’re going 7 to build that 12 miles in Starr County. 8 9 And so I agree with you, I think we can start pushing these cases to closing. Once we have that answer of 10 “Okay. 11 this contract that you’re letting?” because once they let 12 that Contract out and they have those areas, then we can 13 say, “Okay. 14 of them, even if they’re not getting built on, we can at 15 least close their old cases. 16 17 Where are you building 12 miles in Starr County on Now we know what we need to do.” THE COURT: And the rest So you said the Contracts have already been bid and they’re going through a vetting process so -- 18 MR. SMITH: So it’s a design built contract -- 19 THE COURT: Right. 20 MR. SMITH: -- so they have to do the design work 21 for the fence -- 22 THE COURT: Okay. 23 MR. SMITH: -- and then they have to build the 24 fence as well. And so they’re doing the -- and they have to 25 do the survey work that we got all the ROEs for that we’re JUDICIAL TRANSCRIBERS OF TEXAS, LLC 18 1 doing right now, the 2018 ROEs that we’ve been doing in 2 Hidalgo and Starr County. 3 THE COURT: Uh-huh. 4 MR. SMITH: For the Court’s awareness, that’s gone 5 really well. 6 Hanen had us do in 2008, which was -- I decided for DOJ if 7 the Army Corp and Border Patrol couldn’t get an ROE -- 8 before we just went and filed a DT. 9 to go negotiate with the landowner, too, because Judge Hanen 10 We changed things, up based on what Judge We were actually going had us go back out after we filed a DT. 11 THE COURT: And meet. 12 MR. SMITH: And so I thought you might as well do 13 that at the get-go and then that way everybody knows when we 14 come in here we’ve done everything we -- that at least 15 Judge Hanen at that time would have wanted us to do. 16 THE COURT: Uh-huh. 17 MR. SMITH: It’s actually had a very good success. 18 We don’t have nearly as many ROE -- DTs filed in the courts 19 that we thought we were going to have. 20 THE COURT: Yeah, I mean -- 21 MR. SMITH: It’s been very -- 22 THE COURT: -- hardly any. 23 MR. SMITH: I’m going to say about 80 percent 24 25 signed on the ROE. THE COURT: Uh-huh. JUDICIAL TRANSCRIBERS OF TEXAS, LLC 19 1 MR. SMITH: So that part worked out really well. 2 We’ve been working behind the scenes trying to get -- make 3 sure that all those cases went through and we’re dealing 4 with everybody on those. 5 up due would be the -- 6 THE COURT: I think the first one we have come So back to my point that I wanted to 7 make with my question. If the Contracts for the design and 8 builds are being vetted, the bids have already come in and I 9 guess they’re reviewing them, necessarily don’t we know 10 where the 12 miles are? 11 bids would be substantially different depending on the 12 terrain, access to it, whether it’s on a cliff, whether you 13 bring in fill dirt in a lot of areas because there’s low 14 spots. 15 16 I mean, because I would imagine the I mean, don’t we already know in order to have that bid? 17 MR. SMITH: Okay. So the reason why I’m going to 18 say, “No,” is because the way Congress appropriated the 19 money. 20 building in Hidalgo County, a certain amount of money -- They appropriated a certain amount of money for 21 THE COURT: Uh-huh. 22 MR. SMITH: -- for building -- you know, they did 23 do that, this amount of money to build here. 24 is going to have concrete like it did before for lesser 25 points. JUDICIAL TRANSCRIBERS OF TEXAS, LLC Hidalgo County 20 1 THE COURT: Sure. 2 MR. SMITH: There’s one place where the -- over 3 by old Hidalgo where the lake is there -- 4 THE COURT: Uh-huh. 5 MR. SMITH: -- that will actually have a bollard 6 fence on the other side of the lake there. That’s the 7 current design. 8 Starr County will be the what we call the “Cameron County 9 bollard design.” But most places will be concrete, whereas 10 THE COURT: Uh-huh. 11 MR. SMITH: So it’d be that different. I think 12 what they have to wait for from Border Patrol in the course 13 is once they get all those bids in, okay, this is how much 14 we’re bidding to build this, do we have that amount of money 15 to build 25 miles in Hidalgo County. 16 where they don’t have enough money to build 25 miles and 17 maybe less. The bids may come in 18 THE COURT: Okay. 19 MR. SMITH: Same thing for Starr County, they may 20 not have the money to build 12 miles in Starr County, maybe 21 less or, you know, if it comes in cheaper, it may be more. 22 But that’s the -- that’s why I’m waiting on, “Okay. 23 where you’re building based on these bids. 24 money. 25 THE COURT: Tell me You’ve got the So the bids aren’t location specific, JUDICIAL TRANSCRIBERS OF TEXAS, LLC 21 1 they’re sort of like, well, any 12 miles you all pick in 2 Starr County, here’s my bid”? 3 MR. SMITH: No. 4 THE COURT: It seems a little right. 6 MR. SMITH: No. 7 THE COURT: So how does somebody bid without 5 That seems to be -- 8 knowing where exactly they’re going to be building this 9 structure? 10 MR. SMITH: So contrary to the 2008 where we had 11 one contractor building, there’s multiple contractors 12 bidding on different sections. 13 THE COURT: Sure. 14 MR. SMITH: So you get that bid in for each of 15 those sections. 16 bids in for those sections. 17 Here’s what we can build.” 18 okay. 19 dealing with. 20 21 22 Same thing in Starr County, getting those And then it’s like, “Okay. We may not be able to take -- That one's out, this one’s in. THE COURT: Okay. But did they bid more than 12 miles in Starr County? MR. SMITH: No, but if the bids come in under and 23 they decide, “Okay. 24 -- because we’ve done more than 12 -- 25 That’s what I’m Then we’ve got more land here, we can” THE COURT: But at least we’ve defined the JUDICIAL TRANSCRIBERS OF TEXAS, LLC 22 1 “12 miles” though. 2 MR. SMITH: Right. 3 THE COURT: Okay. 4 MR. SMITH: That’s what I’m saying. 5 By February, I should know the 12 miles. 6 THE COURT: No. But you should know now what 7 they are. You know at least what they bid for, the 12 miles 8 that were bid upon, that they may build less than that. 9 They may then have extra money to build more than that. But 10 we at least know the first 12 miles that will be constructed 11 because that’s what was bid. 12 County. 13 MR. SMITH: And again talking Starr So, okay, from that standpoint, my 14 understanding is the bid is more than 12 miles. 15 going to pick the 12 miles they can bid. They’re 16 THE COURT: Okay. That was my question. 17 MR. SMITH: So you’ve got multiple spots in -- 18 THE COURT: So they may have bid 20 miles -- 19 MR. SMITH: Exactly. 20 THE COURT: -- and you’re going to pick 12. 21 MR. SMITH: That’s my understanding. And I can 22 get more details about that. I haven’t really -- you know, 23 it’s not really my purviews. I don’t want to get into the 24 weeds on the bidding side. 25 THE COURT: Well, I understand that. JUDICIAL TRANSCRIBERS OF TEXAS, LLC 23 1 MR. SMITH: Right. 2 THE COURT: But if we drill down deep enough, 3 what we -- I was trying -- I was hoping that we could figure 4 out where the 12 miles are. 5 being -- or some agency being reviewed because they had to 6 know where they were going to be constructing or if the 7 company to them bid on that project. I mean, it’s some committee Your surmising is -- 8 MR. SMITH: If you look at where we -- 9 THE COURT: -- that they probably bid on 20 miles 10 or 18 miles? 11 12 MR. SMITH: Correct, Your Honor, because we did ROEs for more than 12 miles -- 13 THE COURT: Uh-huh. 14 MR. SMITH: -- right of entry, to do all of this 15 and so I don’t think -- 16 THE COURT: Is that because you had funding to do 18 MR. SMITH: The ROEs? 19 THE COURT: Uh-huh. 20 MR. SMITH: We had funding to do the ROEs. 17 21 those ROEs? That’s a different pot of money -- 22 THE COURT: Yeah, I see. 23 MR. SMITH: -- than the part of it that they had. 24 Plus the ROEs -- the survey work is the expense there 25 though. JUDICIAL TRANSCRIBERS OF TEXAS, LLC 24 1 THE COURT: Uh-huh. 2 MR. SMITH: It’s just going out and doing the 3 survey and the soil testing to see if it’s -- there are 4 other issues that you have and like is it even possible to 5 build downtown Roma. 6 THE COURT: Uh-huh. 7 MR. SMITH: So does that bid -- I mean, when they 8 come and do that bid, this is what it would take along the 9 cliffs of Roma to build. 10 section out. 11 12 That may just knock that whole THE COURT: Yeah. I mean, there’s a big gap in the cliffs and how do you cross that. 13 MR. SMITH: Exactly. 14 THE COURT: And there’s a -- 15 MR. SMITH: Starr County has a lot of -- 16 THE COURT: -- wildlife sanctuary there. 17 MR. SMITH: Starr County has a lot of gullies and 18 washouts that -- 19 THE COURT: Uh-huh. 20 MR. SMITH: -- we don’t have in Hidalgo County 21 and Cameron County so those are some new issues that we’re 22 dealing with. 23 the Court at this point I know where 12 miles is going to be 24 built. 25 miles is because it’s everything in Hidalgo County. So that’s why I don’t feel confident telling And I know in Hidalgo County what the possible 25 JUDICIAL TRANSCRIBERS OF TEXAS, LLC I can’t 25 1 tell you for sure all 25 miles is going to get built -- 2 THE COURT: Uh-huh. 3 MR. SMITH: -- because it depends on the dollar 4 amount for that build. But for Starr County, I don’t even 5 have that confidence to say, “Oh, yeah, I know this section 6 is going to get built,” until they actually come back with 7 those contracts. 8 THE COURT: And we’ll know that we hope February. 9 MR. SMITH: Yeah, we should have that by THE COURT: That’ll help eliminate some cases at 10 February. 11 12 that point that may still be pending. 13 MR. SMITH: It will help eliminate cases. 14 will help us negotiate with the landowner, “Okay. 15 what" -- 16 THE COURT: Yeah. 17 MR. SMITH: -- "you have. 18 It Here’s How do you want to proceed with this?” 19 THE COURT: Okay. Sure. I mean, likely will create new 20 cases. So let’s just -- so can we just sort of start 21 picking off each case then and let’s see -- 22 MR. SMITH: Sure. 23 THE COURT: -- what we can do with it? And 24 again, I’m going to start first with the case involving 25 Mr. Reyes and the City of Roma, which is that 08-CV-207 JUDICIAL TRANSCRIBERS OF TEXAS, LLC 26 1 case. 2 of erosion issues, determining what additional land need to 3 be taken. 4 Based on your submission on the status, this is one MR. KINCHELOE: Yes, Your Honor, that’s right. I 5 don’t know that the erosion issues on this one are going to 6 be as serious as some others, but there -- we are trying to 7 figure out how much of this land is still there. 8 9 10 THE COURT: Again, so this is now speculating as to land that might be taken with funding for fence fiscal 2019. 11 MR. KINCHELOE: 12 THE COURT: Yes, Your Honor. And this is on the map of where the 13 fence will be constructed, but we, at this point, have no 14 idea whether it will actually be constructed there because 15 we don’t have the funding information, I guess. 16 MR. SMITH: Well, one correction, not fiscal -- I 17 always get my fiscal years -- so last 2018 money that we do 18 have, that would be part of this. 19 12 miles that we’re trying to do. This plays into that 20 THE COURT: Okay. 21 MR. SMITH: For me when you say, “Fiscal 2019,” 22 we’re trying to get -- 23 THE COURT: No. Okay. 24 MR. SMITH: -- funding or even more money -- 25 THE COURT: Yeah, yeah, that’s a few -- yeah, for JUDICIAL TRANSCRIBERS OF TEXAS, LLC 27 1 even more. 2 MR. SMITH: Okay. 3 THE COURT: So the 12 miles is 2018 funding. 4 MR. SMITH: Correct. 5 THE COURT: We still don’t know where it’s going 6 to be. 7 MR. KINCHELOE: 8 THE COURT: 9 Exactly. Okay. So this is a piece of land that is on the map for a fence crossing it. 10 MR. KINCHELOE: 11 THE COURT: Yes, Your Honor. We don’t -- we won’t know until 12 February where actually that will happen, so the issue then 13 is figuring out whether you’re going to proceed forward with 14 this or not? 15 there, you dismiss the claim and move on? I mean, if they’re not going to build it 16 MR. KINCHELOE: 17 THE COURT: 18 MR. KINCHELOE: No, Your Honor. I mean, what’s the plan on this one? If we don’t build at this 19 location, even if the land is already washed out, we have to 20 pay just compensation for what we took and that does 21 compensation of the value of the land as of the date we took 22 it. 23 out, we’ve still got to pay for it and that’s on us. 24 25 So we take it and then two years later it all erodes THE COURT: Right. So you took the land in ‘08 or thereabouts, so you may take more, -- JUDICIAL TRANSCRIBERS OF TEXAS, LLC 28 1 MR. KINCHELOE: 2 THE COURT: 3 Right. -- but you had to pay for what you took. 4 MR. KINCHELOE: 5 THE COURT: Right. Is there a possibility -- maybe not 6 in this case, but in other cases where you would actually 7 say, “We don’t need the land you took. 8 back” or that -- that’s some part of the calculus is “We’ll 9 give you back some land and it’s worth a certain value”? 10 MR. SMITH: Yes, Your Honor. You can have it And that’s part of 11 what we’re waiting on to see where they’re actually going to 12 build especially if there’s going to be a 2018 build of 13 12 miles, for instance, and 2019 there’s no money, then from 14 my standpoint, okay, I’ve got more definition there and I 15 know how to deal with everybody. 16 For instance, for Mr. Guerra, we’ve had 17 conversations with him early on. 18 Let’s revest the property to him,” and then Border Patrol 19 changed their mind and said, “No, we may want this for a 20 road.” 21 we’re not sure. 22 revestment of those lands is always a possibility. 23 can’t tell a landowner at this point, “Yes, we can.” 24 25 We were thinking, “Okay. But then his is so far down on the southeast side so And so that is always a possibility. THE COURT: say, “Good riddance. Yes. The I just And we also have landowners That was junk land, I don’t want it JUDICIAL TRANSCRIBERS OF TEXAS, LLC 29 1 back. I’m not going to pay you for it.” 2 3 MR. SMITH: Yeah. And then that’s fine. Then we pay the fair market value. 4 THE COURT: 5 this is a valuation? 6 is valuation issue? 7 Okay. So we need to figure out that That’s why this hasn’t been resolved MR. KINCHELOE: Valuation and ownership. A lot 8 of the land in this area, title just is not as clear as we 9 would like. 10 THE COURT: And you continue your -- see, I have 11 no patience for claims that we don’t know who owns this. 12 It’s been 10 years. 13 MR. KINCHELOE: Yes, Your Honor. Part of the 14 problem is not we don’t know who owns in terms of the record 15 title owner, it’s somebody died and somebody else died 16 intestate, and so we’re going to have to publish notice 17 because we just can’t find all the owners. 18 THE COURT: And why haven’t we in 10 years? 19 that’s what I don’t understand about these cases. 20 10 years. 21 MR. SMITH: So for Starr -- 22 THE COURT: Please. 23 MR. SMITH: I understand. And It’s been For Starr County, 24 when -- well for all the project in 2008 when it was filed, 25 they did not come to the US Attorney’s Office with any title JUDICIAL TRANSCRIBERS OF TEXAS, LLC 30 1 work and survey records, so it was all done after the fact 2 and we did a lot of the title survey work. 3 Starr County, we didn’t get title work until 4 approximately two years ago. Number one, they couldn’t find 5 anybody to do title work for the United States Government, 6 Starr County. 7 the land plan. 8 running and we’re getting the title work. 9 actually not even started coming into the US Attorney’s And then once they did, we had problems with Then we got past that. And now we’re up and But it has 10 Office for the actual title work until approximately two 11 years ago, two or three years ago. 12 THE COURT: All right. So you have title work on 13 this particular land and -- but we haven’t provided these 14 owners with notice of this suit or, I mean, what do we need 15 to do to wrap this up? 16 MR. KINCHELOE: 17 THE COURT: 18 MR. KINCHELOE: We’ve provided -- This seems like an easy one. Yes, Your Honor. We’ve provided 19 written notice to the addresses we have. 20 we need to publish notice to the owners we can’t find, the 21 unknown heirs. 22 publications with as many cases as is reasonable to keep it 23 economical because it’s -- 24 25 The next step is What we’ve tried to do is consolidate THE COURT: Have you noticed any of them? mean, in the past six months, have you provided any JUDICIAL TRANSCRIBERS OF TEXAS, LLC I 31 1 notice -- or a year -- on any of these cases that are still 2 pending? 3 MR. KINCHELOE: 4 THE COURT: 5 MR. KINCHELOE: 6 THE COURT: 7 MR. KINCHELOE: 8 Publication notice? Yes. No, Your Honor. Okay. But your plan is -- Not in Starr County. We have in Cameron County. 9 THE COURT: Okay. Yeah. We’re talking about 10 just these cases. 11 notice in a fashion where you can tackle many or all of 12 these cases at one time, “These are the tracts of land or 13 whatever you claim an interest in, notice,” whatever, 14 “contact us in so many weeks.” 15 16 So your plan is then to try and publish How quickly do you think that can reasonably be accomplished? 17 MR. SMITH: So for publication, we can probably 18 start doing publications sometime after the first of the 19 year. 20 Cameron County, we’ve done two publications in Cameron 21 County. 22 of these things that we have to publish and we have one 23 paper that owns both -- or one person -- corporation owns 24 both papers, so we don’t -- can’t really negotiate. 25 When we try to do these like, for instance, in It cost us about 200,000 just because of the size So it’s a large expenditure so we try to do them JUDICIAL TRANSCRIBERS OF TEXAS, LLC 32 1 all and get them all in there. 2 -- again, it comes down to, okay, once we realize where 3 we’re building and who we’re dealing with. 4 And so that’s what we would But even if it’s a revestment, I still need to do 5 the publication because we can’t revest the land until we 6 actually have done everything for the title work and made 7 sure we gave notice to potential owners because I can’t 8 revest it, if I don’t know exactly who the owner is. 9 THE COURT: Okay. So in this case, the -- 10 involving Mr. Reyes, we’re going to publish notice. You 11 think you can do that after the first of the year so I’m 12 going to give you 60 days to do that. 13 comes up, I mean, you can revisit this, but I want to get 14 these cases moving so I’m going to push you. I mean, if some issue 15 So 60 days or that you publish notice to anyone 16 who claims an interest in this property within two months. 17 What else can you do in this case in the interim? 18 It’s hard to negotiate anything or resolve anything until 19 you get that notice out. 20 MR. KINCHELOE: Yes, Your Honor. We’ve done a 21 couple of these in Cameron County where we are well along 22 the process of handling cases where we can’t find the 23 owners. 24 we published notice and given time to respond, we have filed 25 a motion asking the Court to enter a default under 55(a). What we’ve done is we’ve published notice. JUDICIAL TRANSCRIBERS OF TEXAS, LLC After 33 1 THE COURT: Sure. 2 MR. KINCHELOE: Right. I intend to do that. We didn’t -- just we’d rather go 3 through the Court and the Clerk’s Office because we want to 4 make sure everybody knows what’s going on. 5 After the Court enters a default, then we ask the 6 Court to set a trial date. 7 give us some unsworn declaration about what the value is, we 8 use that as evidence. 9 If we can get some owners to But if we can’t find any owners and no one will 10 talk to us, as is the case in one case in Cameron County, 11 we’re going to have to go get an in-house appraisal and then 12 bring our own appraiser in. 13 THE COURT: Okay. Just using what’s on the 14 County’s Appraisal District isn’t sufficient to be -- you 15 don’t have anybody showing up on the defense side. 16 need is some evidence to present to the Court in your Bench 17 Trial. 18 just a default judgment, evidentiary hearing on a default 19 judgment. 20 21 I mean, it wouldn’t even be a trial. All you It would be It’s the value of the property. MR. SMITH: So when I got involved in this, new to my world of condemnation and I thought the same things. 22 THE COURT: That's -- 23 MR. SMITH: Pursuant to the Uniform Act, we still 24 have a duty because even if the landowners don’t show up, we 25 have to pay that money into the Registry of the Court and it JUDICIAL TRANSCRIBERS OF TEXAS, LLC 34 1 has to be based on what we call the “yellow book,” which is 2 the federal guidelines for appraisal work on compensation. 3 So we actually have to give the Court some kind of evidence 4 to make a just compensation ruling. 5 6 We can do that if there’s landowners and they agree, “Hey, this is the value of the land.” 7 THE COURT: Sure. 8 MR. SMITH: We can do it and then we can pay that 9 in. Yeah. And any unknown owners, that share goes into the court. 10 THE COURT: Sure. 11 MR. SMITH: But we have a number of these cases 12 where we can’t find owners or the heirs and so we just have 13 to have like a little mini trial. 14 working now in-house that can do the yellow book appraisers 15 that’s not our normal expert that we use in litigating a 16 case. Again, we’ve got somebody 17 THE COURT: Uh-huh. 18 MR. SMITH: But they can do a -- and what we’re 19 trying to get them to do, not only here, but in Cameron 20 County, is to look a number of these so that they can do one 21 report for a number of them -- 22 THE COURT: Uh-huh. 23 MR. SMITH: -- and so we don’t have to have a 24 report for each and every one, and so we can get similar 25 properties. Then we can come to the Court with that. JUDICIAL TRANSCRIBERS OF TEXAS, LLC 35 1 THE COURT: 2 less-involved method. 3 yellow book appraisal from an expert. 4 other way. 5 MR. SMITH: Okay. So that’s -- there is no You’re going to have to have this You can -- there’s no Yes, Your Honor, we’ve gone back and 6 forth with the Court and DOJ, LAS on there’s got to be an 7 easier way and -- 8 THE COURT: Is the county doing its -- 9 MR. SMITH: -- this is what we’re going to have THE COURT: I mean, the Appraisal District -- I 10 to do. 11 12 mean, they have their own process. 13 that’s in the books that people are paying taxes on, that’s 14 not enough evidence? 15 MR. SMITH: I mean, that value Well, if you look at what it takes to 16 do a yellow book appraisal, it’s not like anything that we 17 see from appraisal districts or even from just home 18 appraisals for buying a house. 19 side. 20 21 Very complicated on that I would love to be able to do that. THE COURT: Yeah. It would make things a lot quicker and easier. 22 MR. SMITH: Yes, exactly. 23 THE COURT: All right. 24 we’ll publish notice. 25 ends. So then on this one, We’ll wait until the response period I’m sort of feeling that maybe at that point we JUDICIAL TRANSCRIBERS OF TEXAS, LLC 36 1 should have a hearing on what we do next, but likely we 2 would proceed with a request to default the non-responding 3 people that you have -- you know, may own this, have an 4 interest in this. 5 agree on an amount. 6 7 If not, then we just set it for a trial and valuation? 8 9 We do have some people who could maybe MR. KINCHELOE: Yes, Your Honor. And the 60 days -- well, I guess 60-days-plus response time -- 10 THE COURT: Right. 11 MR. KINCHELOE: -- we’ll reach out to the owners 12 we can find and see if we can get new agreements about the 13 value of just compensation. 14 that evidence and shortcut the -- 15 THE COURT: If we can, then we can present Yeah. I mean, this was an easy one. 16 We have the City of Roma. 17 come up with something. 18 maybe a few other parties and -- have an interest. 19 All right. I’m pretty sure they can probably I guess Mr. Reyes is coming in, So what is the typical response 20 period that people are given in the Notice, two weeks, 21 30 days? 22 23 MR. KINCHELOE: I think it’s 30 days, Your Honor, but I don’t have the rule in front of me. 24 THE COURT: You think 30 days? 25 MR. SMITH: Your Honor, I think we have to JUDICIAL TRANSCRIBERS OF TEXAS, LLC 37 1 publish -- 2 THE COURT: It’s maybe a little bit more? 3 MR. SMITH: -- for three weeks straight the 4 publication notice, so I think it’s three weeks and two or 5 three days maybe that we do the publication. 6 THE COURT: I’m trying to get this resolved 7 before March 31, for obvious reasons, but I’m -- we’re going 8 to have difficulty doing that because even if we publish 9 notice the first of January, basically we’re going to lose 10 January to the response period. So I could set this for a 11 hearing the first of February, if it were to go from there. 12 Why don’t we do that? 13 similar pattern on the other cases as well. 14 All right. Again, this may be a So again, I’ve already made my Order 15 on the Notices to be published within the next 60 days and 16 then I’ll set this for a Status Conference early February 17 determining what to do next on this case. 18 19 20 Okay. So we’re done with that one case. taking good notes. (Hearing adjourned at 11:17 a.m.) 21 22 23 24 25 * * * * * JUDICIAL TRANSCRIBERS OF TEXAS, LLC Hope you were 38 1 I certify that the foregoing is a correct 2 transcript to the best of my ability produced from the 3 electronic sound recording of the proceedings in the above- 4 entitled matter. 5 /S/ MARY D. HENRY 6 CERTIFIED BY THE AMERICAN ASSOCIATION OF 7 ELECTRONIC REPORTERS AND TRANSCRIBERS, CET**337 8 JUDICIAL TRANSCRIBERS OF TEXAS, LLC 9 JTT TRANSCRIPT #59856 10 DATE FILED: JANUARY 31, 2019 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 JUDICIAL TRANSCRIBERS OF TEXAS, LLC