In his latest column for Daily Journal, Manatt Appellate Senior Counsel Michael Berger explains two recent decisions surrounding the flow of people crossing the U.S./Mexico border illegally and the policy decisions that helped the cases proceed.
The border wall has become a catalyst for litigation from property owners alleging both takings and environmental violations by the federal government, Berger said. Both cases center around the Biden administration’s decision to halt the wall construction and urge the Department of Homeland Security to consider changing or eliminating the Migrant Protection Protocols, which it later did. The plaintiffs in both cases can point to these actions as a contributing factor to their grievances.
In Massachusetts Coalition for Immigration Reform v. U.S. Dept. of Homeland Security, the plaintiff claimed the federal government’s decision not to pursue an Environmental Impact Statement regarding the change violated the National Environmental Policy Act. The court found liability for the government, and briefing on the remedy is in process.
In the other case, Rancho Vista Del Mar v. United States, a property owner said the government’s allowance of substantial illegal immigration qualified as a taking in addition to the property damage caused in the process. Though the court initially disagreed that the government’s inaction qualified as a taking, the plaintiffs amended the complaint to cite the physical occupation of the federal agents themselves, along with their vehicles and equipment, as a taking instead.
“If the property owners complained solely about the passage of migrants (regardless of their numbers or their legal status), there would be no case. The court refused to hold the government liable for actions attributable solely to others,” Berger said. “However, as the complaint alleged that the government's own actions in pursuing and processing fugitives resulted in an actual physical occupation by the government, the case could proceed.”
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