The only way for President Trump to build the wall will be to get private land on the border. Some will undoubtedly refuse sale. Will the Department of Justice have to sue them one by one or can they class action the eminent domain lawsuit?
The Short Answer
Eminent domain suits brought by the United States of America must be brought one by one against each property owner (or in the case of property owned by more than one person, against all of the people who own that particular parcel of property).
The government cannot bring a class action lawsuit to exercise its power of eminent domain.
Federal class action lawsuits are governed by Federal Rule of Civil Procedure 23 which exists to allow multiple plaintiffs to join in litigation in a simplified manner.
But, when the United States of America brings a lawsuit to enforce its power of eminent domain, there is always one and only one plaintiff. Different agencies of the United States of America, for example, do not count as more than one party.
The comments to this question indicate that there are a lot of misconceptions related to the basics of the eminent domain process above and beyond the narrow class action lawsuit question, so I address those below, because the short answer is somewhat misleading without an overarching understanding of the context of the question.
The Eminent Domain Process
The eminent domain issues involved in building a border wall is very similar to the situation involved when the government floods a valley by building a dam, or takes land to build a highway, or takes land to build a military base.
Most of the land affected by a border wall (at least in Texas where much of it would be built) is privately owned. According to that link (from Fox News):
Hundreds of property owners were sued just to build the existing chunks of wall. Some 400 relinquished properties ranging in size from a driveway to commercial lots and farms, costing the government at least $15 million, according to an AP review of land cases in 2012.
Also notably, the border wall proposal was unpopular in most of the counties on or near the U.S. border with Mexico.
The appropriate division in the Justice Department (with pre-litigation work often done by other federal agencies) is very adept at mass producing the eminent domain lawsuits necessary to acquire property in circumstances like these. There is a rather elaborate process involved:
- A regulatory process is conducted to determine that a project should be commenced is undertaken in a particular way in accordance with the Administrative Procedure Act. Unless Congress enacts a project specific waiver, an environmental impact statement must be completed by the agency in connection with this step, as required by the National Environmental Policy Act.
Also, note that in a very big multi-billion dollar, thousand mile long project, like the proposed border wall, the project would probably be broken up into a number of independent sub-projects, each managed independently by different senior bureaucrats at this point. For example, the Rio Grande River border wall might be one project, while the New Mexico border might be another, and the Arizona border a third, and the California border a forth. Similarly, the New Mexico border project, for example, might be further broken down into one project to build the actual wall and another to build a frontage road alongside it and a third to set up a power grid to run the cameras and spotlights along the wall.
- Engineers and architects then determine exactly what property will be affected in what manner by each project in what ways, once the agency decides to go forward with a project in a particular way. Some property must be taken completely, but sometimes only temporary use of property, or an easement or a setback is required, rather than complete ownership of the affected property.
Simultaneously with this step, estimators would use the plans to refine the original budget for the project into detailed and more accurate line items, some of which would be bid to government contractors and some of which (like eminent domain costs) would be estimated more accurately by a senior bureaucrat in the appropriate agency. If the existing appropriation for the project is insufficient to pay for the project in light of the more accurate cost projections (e.g. if Congress underestimated the cost of acquiring land), then the agency has to go back to Congress and ask for a supplemental appropriation bill to cover the unexpected cost overrun.
Once the project is approved and precise plans have been drawn up, a team of title technicians (the colloquial term is "land men"), determines which parcels of real property are affected by the project and how owns them based upon the plans prepared by the engineers and architects and a review of county real property records in each affected county.
A team of appraisers then determines how much the government is willing to pay for each parcel (including a premium above the true fair market value that could be proven in a trial that is designed to avoid the expense of eminent domain litigation). They use methods similar to those of a county assessor, and their adherence to recognized appraisal standards will be critical to the ability of the government to have a court determine that this is the correct amount of just compensation for the property if it ends up being litigated.
A team of negotiators then contacts the affected property owners to offer the price determined by the appraisers, and to negotiate in a manner consistent with the overall needs of the project to resolve issues. For example, negotiators would typically have the power to reach an agreement to completely purchase property even when the engineers think that only an easement across the property is necessary, if this will facilitate a voluntarily sale of the property by the owner at a price that the agency is willing to pay in light of the likely price and litigation costs that would be determined in an eminent domain proceeding.
After a reasonable period of time has elapsed with respect to a parcel during which the parties can negotiate, the acquisition of property that owners will not sell voluntarily will be referred to a Justice Department lawyer who will commence an eminent domain lawsuit to acquire that property. Usually, the legal documents in these cases are mass produced from a form prepared by a Justice Department lawyer for the project in question (which sets forth the legal authority for condemnation that is common to all eminent domain cases on the project) that requires a Justice Department paralegal to insert the property description and last best offer made and the owners of the property. Once the paralegal fills in the form for each property, the lawsuits are then given a cursory review by the Justice Department lawyer. If the Justice Department lawyer approves the final drafts, then the lawsuits are filed with the appropriate federal district court (one with jurisdiction over the land in question), and legal process is served upon each property owner in the manner provided by the Federal Rules of Civil Procedure and relevant statutes. If a property owner does not respond to the lawsuit, the government wins by default.
If an answer is filed, and no post-filing settlement is reached, the government will then usually ask for an immediate possession hearing at which it establishes that it has a right to seize the property leaving the just compensation as the only outstanding issue and having the court set a bond for the compensation amount pending final determination of just compensation. At that point the government can begin work on the property.
Often months after the project is built, final compensation is determined in the eminent domain lawsuit and it is paid to the owners in proportion to their ownership percentage or as a check payable jointly to all of them.
A typical project to build a a few dozen miles of new highway or an urban rail line will involve acquisition of many hundreds of parcels of property giving rise to scores of eminent domain lawsuits that have to move forward before the project is "shovel ready".
This can take months or years, although it is typically done on a rolling basis, so that some part of the project can get going while red tape to get the rest of the project in place with legal authorization to begin work is still in process.
A border wall project would probably involve thousands of lawsuits just to handle the cases where a voluntary sale couldn't be negotiated.
As a lawyer who sometimes helps people defend eminent domain proceedings with respect to their property, I usually get involved at step 5 or step 6 of this process.
Inverse Condemnation Compared
In contrast, an "inverse condemnation" action can be brought as a class action. An inverse condemnation action happens when the government simply takes property without due process or providing just compensation, even though it is required to provide due process and just compensation by the 5th Amendment to the United States Constitution, and the person from whom the property was taken sues to invalidate that action or obtain just compensation for it.
If many similarly situated people are harmed by the government taking their property without an eminent domain proceeding, causing them all to be potential plaintiffs, they may bring a class action to seek a remedy.
If the government is acting lawfully, however, an inverse condemnation lawsuit will never have to be brought, because the "due process" part of the 5th Amendment requires that a lawsuit be brought before the property is taken using the power of eminent domain.
It is not lawful for the United States to simply take property and see if the property owner will complain after the fact. If any agency were to do this on a routine basis, it would be appropriate to bring a federal lawsuit seeking injunctive or declaratory relief to force this agency to change its policy going forward, in addition to forcing it to provide a remedy in cases where it had already seized property without first bringing an eminent domain lawsuit.
Each suit will be an individual action, if and where needed. One party of a lawsuit may never 'force' the other side into 'a class'. To be 'certified' as a 'class' one side must petition the court and ask to be treated as such.
Now, having answered your question I will turn to your faulty premise.
- The only way for President Trump to build the wall will be to get private land on the border... Incorrect, over much of the land in question (where, yes @David Grinberg there is private land right up to the border) ALL that will be required to erect the wall is an "Easement" rather than a taking.
- Some will undoubtedly refuse sale. Kelo will clearly not apply hear. It ONLY applies when the government is conducting a taking of property in behalf of a private entity. This is not Donald Trump, developer, getting the land to put up a shopping mall. As such, NO ONE may question (or challenge) the actually 'taking'. If necessary the government will inform the land owners of the fact that they are taking the land and how much they will be paid for it and on what date they are expected to vacate. The first (the taking) and the third (the date) are inviolate and can not be challenged (sometimes the date can be negotiated...but that's not the issue here). The only thing the property owner may challenge is the price.
I think the initial statement is a little too strong - FRCP 23 clearly envisions defendant class actions - "One or more members of a class may sue or be sued . . if: . . . (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class" (emphasis added). Defendant class actions are not common but are also not unheard of - see law.du.edu/documents/denver-university-law-review/v88-1/… for law review discussion of same. Individual defendants could opt out of the class action, so participation isn't mandatory.– gbroilesMar 5, 2017 at 1:34
1@gbroiles, You are miss-reading a poorly written article that does not represent what the law is, but rather what the author thinks it should be. Rule 23 has never been applied or litigated and is fraught with perils in application. Most importantly it does not, at all, address the central point that I make...to be certified as a class the members of the CLASS must petition the court, "Let us be a class" and be certified as such. OP's question poses quite the opposite scenario, it asks if the government, in it's (supposed) necessity to exercise ED can MAKE the land owners into a class. Mar 5, 2017 at 3:03
1An easement is a form of taking and the land you are actually building the wall upon probably requires a total taking of a fee (i.e. complete) ownership interest. Mar 5, 2017 at 5:25
You are absolutely incorrect that the only thing that may be questioned is the price. To quote the 5th amendment: "nor shall private property be taken for public use, without just compensation". The "just compensation" may be questioned as can the "public use" part. Traditionally the judicial branch has shown great deference to the executive on if something is in the public interest. However, you can't mention Kelo and then say the government can't judge over public interest. The two are intertwined Mar 6, 2017 at 5:33
1@BenCooper We are splitting technical hairs here, but it is sometimes important to do. If a landowner wishes to challenge the 'public use' (per Kelo) and the state can show, with great deference, that it is a public use (highways etc..) then the action will (most commonly) be dismissed without trial. Indeed it is rare for any ED action to actually make it to trial as the court will attempt to guide the parties into arbitration. But if, the prima facia case for 'public use' is not born by the land owner the matter will not (usually) make it any further. Mar 6, 2017 at 13:19
will be to get private land on the borderWhat makes you say that? There are already large swaths of land that is walled (or fenced, whatever). I don't know of any cases of private property going right up to the last inch of the border, so please show where that would be the case. Also the whole point of emiment domain is that you can't refuse sale.