Critics examine legality of border fence

McALLEN - The federally approved fence planned along the U.S. border with Mexico could violate the U.S. Constitution, an environmental law expert says.

Speaking Wednesday evening at McAllen’s Palm View Community Center, Houston-based lawyer Jim Blackburn urged Rio Grande Valley residents not only to learn the law but to be ready to file a lawsuit when the time comes.

His comments came during an event hosted by the McAllen Hispanic Chamber of Commerce and former Hidalgo County Judge Ramon Garcia focusing on questions about waging border fence legal battles.

The Department of Homeland Security is set to build 370 miles of border fence along the U.S.-Mexico border by the end of 2008, a significant portion of which has been slated for the Valley.

Many politicians paint the barrier as a means of stemming illegal immigration. They also say a fence would help prevent terrorists from entering the country.

But opposition to the plan has been fierce here in the Valley.

McAllen Mayor Richard Cortez and others at Wednesday’s forum touched on economic, philosophical and human rights reasons not to build the fence.

“Look at what’s the effect on the river itself,” Blackburn told a crowd of more than 60.

He explained that any alterations to the course of the Rio Grande caused by the fence could be a strong basis for a lawsuit.

“That may be one of the best legal answers,” he said.

When details of the fence plans come out, Cortez and others in opposition should pay close attention and look for opportunities to file suit to try to stop the federal government from moving forward with the project, Blackburn said.

Whether opponents would have a good case depends largely on the fence’s exact location. If it interferes with the flow of the Rio Grande or even its floodway, it could violate an existing treaty. That would make it unconstitutional.

In 1970, the United States and Mexico signed a treaty relating to the natural boundary between the two countries. Both sides agreed not to interfere with the natural water flow of the Rio Grande.

If the border fence were to interfere with the river’s flow, it be construed as a violation of the treaty, Blackburn said.

Forum attendee Lisa Brodyaga, a lawyer from San Benito, asked if it would help to identify potential plaintiffs in preparation for a lawsuit.

“If we did that we could be one step ahead,” she told the crowd after asking her question.

Blackburn agreed it would help to organize sooner than later.

“There’s a lot of work to be done,” he said, “and a lot more issues to be fleshed out.”

____

Zack Quaintance covers law enforcement and general assignments for The Monitor. You can reach him at (956) 683-4447.