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The Last Battle of the Mexican American War: The United States of America versus

The University of Texas at Brownsville and Texas Southmost College1

By Antonio N. Zavaleta

Borderless Love”

by the Flatlanders

Walking the line between pleasure and pain

Biding my time between loss and gain

I have run out of roads, I have traveled them all

Down at the border by the one-sided wall

Borderless love, the land of the free

Borderless love, how far can you see?

Borderless love, there’s no border at all

In a borderless love, there is no need for a wall (1)

As the 19th century dawned over the northeastern Mexican hinterlands, Matamoros was a thriving commercial city, an important central place, and hardly a lonely outpost. (2) This important trade hub, served as one of the two principal import routes for goods coming into Mexico from the eastern United States, Europe and the world beyond.

Within the first twenty years of the life of a person born in Matamoros in 1800, government changed from colonial Spain to Republic of Mexico. Across the river, to the north, in the next twenty years, the Republic of Texas formed, and then it joined the United States. Before that person’s fiftieth birthday, the United States acted on the imperative of manifest destiny by invading sovereign Mexico through the first battles of the Mexican War fought on the north bank across from Matamoros. This aggression, which would eventually cost Mexico one-third of her land mass, natural resources, and most importantly many hundreds of thousands of its heartiest pioneers.

In 1845, President Polk ordered General Zachary Taylor to march southward along the Gulf coast from Corpus Christi, constructing an earthen Fort Texas (remains of which are located on the UTB/ TSC golf course), directly across the river from a Matamoros military installation (the Casa/Mata). His intention was clear, and it was only a matter of time before a cannonade began. While Taylor did not proceed himself to Mexico City, American troops did, leaving behind Fort Texas and the remains of fallen soldiers. This first border outpost along what would become the U.S.-Mexico border would become Fort Brown and serve with honor until after the Second World War, when it was decommissioned. Taylor went on to become President of the United States for his role in the war. The lands surrounding Fort Brown, now a university campus and continued US aggression on the site are the focus of this discussion.

The U.S. aggression played out on the banks of the Rio Bravo in 1845 resulted in one of the most significant international land grabs in world history. On the border, the powerful, shamelessly grabbed land from the less powerful. Today, the border continues to be a locus for land grabs through other means such as failure to pay taxes, property lawsuits, and now through federal condemnation.

One hundred and sixty years after the ink had dried on the Treaty of Guadalupe Hidalgo, the push-and-pull forces along this economically disparate border of haves and have-nots has seen tens of millions of Mexicans immigrate to the land of plenty north of the Rio Grande. In later life, they commonly return to their native land for a pleasant retirement.

In the early 21st century, the United States reeled from its own failed economic policies. The powerful country to the north of the frontera feared that continued and unchecked immigration from the poor countries to the south would undermine U.S. economy and socio-political stability. A similar fear during the Great Depression led to a massive deportation and repatriation of Mexicans working in the American Midwest.

In the waning years of the George W. Bush Presidency, in 2006-2009, the United States played out what many writers have described as the most recent battle of the Mexican American War.(3) This has been a war of demographics and not of bullets, a war waged by building a border wall along the Rio Grande, in which the United States would ostensibly keep out unwanted Mexican labor and shore up its homeland security. This war has not seen its last battle, as the demographic reality marches on unchecked.

Through the force of the federal courts, the powerful once again grabbed land. In doing so, the United States violated the 1846 Treaty of Guadalupe Hidalgo, which “guaranteed” the rights of the native landowners who have lived along the river peacefully for the last one hundred and sixty years.

This paper will describe the most important events of the years 2006-2009 that affected a little community university, down on the border, its land quietly nestled in the crook of the Santa Cruz Bend of the Rio Grande River at Brownsville. You will read the truth about how one small university, backed by the collective power of persons of both Mexican and American descent, drew a proverbial “line-in-the-sand,” defying the power of the United States federal government. In spite of the rapidly militarizing border in the first decade of the 21s1 century, UTB/TSC’s resulting victory will be judged to be significant but bitter-sweet. The events in the run-up to the decisions of the federal court in Brownsville focused international attention on Brownsville and the University of Texas at Brownsville and Texas Southmost College, and its administration, faculty, staff, and students. It even drew a largely conservative University of Texas System Board of Regents into the fray. The Regents wisely supported their border university with both their vote and their money.

The collective actions served to slow to a crawl the movement of the juggernaut, but the federal government was not to be stopped and the border wall was constructed as planned. More than a century-and-a-half after the war, the shared border at the Rio Bravo/ Rio Grande, the governments of the United States and Mexico fail to see the value of strategic socio-economic and symbiotic planning and neighborship (Amistad-Friendship). The two nations dance around the concept and pay lip service to it, but fail to act in any meaningful way. There is a sort of avoidance and aversion to the economic equalization of the border. It is painfully obvious that sustained economic development in Mexico would produce a force that would directly reduce migration out of Mexico northward and would result in a reverse migration of Mexicans living in the United States, legally and illegally, back to Mexico. In fact, economic equalization at the border would produce an unprecedented prosperity on the border that frightens both governments.

A right wing and radically conservative Congress (prior to January 2009) convinced itself that a physical infrastructure constructed at the Rio Grande River in Texas would pinch off illegal immigration from Mexico and other countries to the southern border of the United States. In support of this isolationist mentality, Congress passed a law, in 2005, which allowed the Secretary of Homeland Security Michael Chertoff unprecedented power to waive “all legal requirements” affecting thirty-six of the most important laws designed to protect American lands and wildlife. Included are The Endangered Species Act; The Migratory Bird Treaty Act; The National Environmental Policy Act; The Coastal Zone Management Act; The Clean Water Act; The Clean Air Act; and The National Historic Preservation Act. These major and hard-fought-for environmental laws were simply pushed aside in order to avoid lawsuits that would impair or prevent the construction of the so-called border wall.

In April of 2008, after the initial hearing of the government’s case against UTB/TSC, Secretary of Homeland Security Chertoff exercised this power. His decision to act was not subject to judicial review. I believe that historians will find Chertoff’s actions to be one of the most-far-ranging abuses of power in American history. (4)

In order to speed up the construction of the fence, the bill sharply limited judicial review to a single District judge; and any appeal from that ruling can only go to the Supreme Court at the Courts discretion. New York Times columnist Adam Liptak argued that Congress’s voluntary delegation of powers to the executive branch threatened the basic Constitutional principle of separation of powers. (5)

The drama heightened on October 26, 2006, as President George W. Bush signed into law H.R. 6061, The Secure Fence Act, passed by the 109th Congress. (6) Conventional wisdom on the border believed that, as a Texan, President Bush would not support the construction of a border wall along the Texas-Mexico border. Naively, this belief overlooked the power of the anti-immigration lobby and construction interests. It took many months for the inevitable consequences of the president’s signature to enter the consciousness of the average south Texan. In addition, it took almost another year for south Texas landowners and others to become vocal opponents of the border wall. Three years later, in 2006-2009, the “border wall’’ had become anachronistic and a metaphor for other abuses in the Texas folk-lexicon as seen by The Flatlanders song lyrics for Borderless Love cited above.

In 2007, the average citizen and elected officials had no idea of what was to come, as south Texans paid little attention to the possibility of a tactical border infrastructure being built in the Lower Rio Grande Valley. It was a remote threat that few took seriously. Many relied on “the government coming to its senses” a sentiment aided by editorials such as one by Melanie Mason. In an article in The New Republic, Mason pointed out that the “Border Fence Folly doesn’t work; it exacerbates the problem; it’s inhumane; it’s enormously costly; it’s environmentally damaging; and it’s legally dubious. Mason succinctly outlines everything that is wrong with the border wall.” (7)

As the buildup to the walls construction continued through September of 2007, the U.S. Customs and Border Protection and the U.S. Army Corps of Engineers published the first detailed maps for the “first-phase” of the border fence to be constructed in the Lower Rio Grande Valley of Texas from Roma to Brownsville. “Word spread like wildfire,” said UTB/TSC Vice President Antonio Zavaleta, “It was not until we actually saw the maps that this thing became real beyond real.” (8)

“My goodness, do we want the next generation of kids growing up with the mentality of a wall or border [what message does that send? and the next generation of Mexican kids having that in their psyche as opposed to unity?” Zavaleta reported to Latina Lula. (9)

It was realized only later in the public consciousness that the Real ID Act of 2005 pushed all existing laws aside. “Notwithstanding any other provision of the law, the Secretary of Homeland Security shall have the authority to waive all legal requirements. It will be at the Secretary’s sole discretion, and he will determine if it is necessary to ensure expeditious construction of the barriers and roads.” (10)

In June of 2007 and approximately eight months after the House Resolution became law, the Department of Homeland Security called local landowners and other governmental stakeholders to a meeting at the Harlingen, Texas, Border Patrol Station. For local citizens and elected stakeholders, the period between 2006 and 2007 was a time of uncertainty and confusion about what was actually about to happen. The federal plan seemed to be shrouded in mystery and information confusion. What was supposed to be a simple briefing for city and county officials became an embarrassment that reached the highest offices of Washington, D. C. Following the Harlingen meeting, articles were published in the three local Lower Rio Grande Valley newspapers in Brownsville, Harlingen, and McAllen, Texas.

The threat loomed that a major portion of the campus of an American university was to be located on the Mexican side of the wall in an inaccessible and non-functional no-man’s land, in the psyche of the folk, and the morning newspapers of the world.

The original question posed, innocently and without malice, by Dr. Tony Zavaleta, in Harlingen, Texas, caused the federal officials considerable embarrassment. It was clear that the highest-ranking official in the room had not been fully briefed, had not been physically on the property in question, and therefore did not have any answers. He would have to “get back to us.”

The issue of the border wall and the ITECC center remained fairly low key and localized for several weeks. UTB/TSC president Dr. Juliet Garcia was briefed on what had been said, but the university was not yet focused on the issue. In 2007, Dr. Zavaleta was organizationally responsible for the university’s International Technology, Education, and Commerce center (ITECC) and, as such, attended the stakeholder’s meeting held in Harlingen in 2007. It was at that meeting that the highest-ranking federal officer in the room stated, matter-of-factly, “In the area of Brownsville, the fence will be built on the north side of the levee.”

A simple question that day unleashed the “border-wall-storm” about to engulf south Texas. “What impact would the construction of the border wall have on UTB/TSC property at its ITECC center in downtown Brownsville?” The federals provided no answer, and, ultimately, the college would be drawn into the fray. Decisions made by the college leadership would cause the college to be sued by the federal government (Civil B-08-56).

By the middle of June 2007, Ralph Blumenthal, of the Houston office of the New York Times, had taken interest, focusing on the human interest of the story in a June 15, 2007, New York Times article, “Some Texans Fear Border Fence Will Sever Routine of Daily Life.” (12)

The New York Times article served to launch a firestorm of look-alike articles, bringing international attention to the issue and heightening the awareness of the average citizen. It also eventually influenced the outcome of the national presidential politics, with a visit from candidate Obama to the UTB/TSC campus in the waning hours of the election.

Meanwhile, the federal government silently (and without informing the university) rerouted the proposed wall in the area of the ITECC center to the south side of the center, thereby sparing that section of the university from the indignity of the border wall. It was not until UTB/TSC was able to access the federal Environmental Impact Statement (EIS) that it became evident that the government had decided not to pick the fight in the area of the ITECC center. The government had set their sights downriver. Approximately one river mile downriver, the battle would be fought at Fort Texas on the main campus (ironically over the same ground where Major Jacob Brown lost his life in 1845). (13)

During the summer and into the fall of 2007, the federal government continued a cat-and-mouse game with the local community. The government provided very little information on their plans for the border wall. Many believe there was a campaign of silence and disinformation as 2007 came to a close. So little was said or done by the federal government during those months that a false sense of security and complacency was felt by locals, who believed that the wall would not be built.

Dr. Zavaleta, himself, had inherited a parcel of land located along the river from his father, the late F. E. Zavaleta. The parcel was located along East Avenue in Brownsville, in the impacted area, and so Zavaleta received a request to access his land for the purpose of the initial survey. It was a document identical to that received by the college. As a small and unprotected landowner, Zavaleta felt powerless against the government. There was simply no way to deny access without major and costly legal problems. Since the land in question had no family, heritage value (unlike the land of Eloisa Tamez, discussed below) and it seemed that the federal government could not be defeated, access was granted.

Eloisa Tamez, a UTB/TSC faculty member, fought a valiant fight against the government in order to preserve the integrity of her family land grant on the Military Highway to the west of Brownsville.(15) Tamez’ battle with the federal government to maintain her family land continues as of January 2010. Ultimately, in spite of their willingness to sell their land, the Zavaleta family was sued in Federal Court in January of 2010.15 After a personal conversation with Assistant United States Attorney Daniel David Hu, Dr. Tony Zavaleta filed an answer to the condemnation suit civil no. 1:08-cv-427, on February 2, 2010, indicating that the Zavaleta family did not wish to contest the condemnation. (16)

Immediately realizing that the proposed border wall would separate part of the campus of an American university from the accessible continental United States, Dr. Zavaleta asked the officials if what he had heard was accurate. The federal officials seemed to be taken aback by the question and by the fact of the separation. The map below shows the location of the ITECC center in the lower left of the figure with a solid line traced along the north side of the levee. The dashed line traces the IBWC levee. All of the area above the dashed line in the figure is in downtown Brownsville. (17)

It was obvious that the senior federal official had not visited the site to which he referred in his presentation nor had he reviewed the proposed construction route to ensure its appropriateness. The spokesperson for Customs and Border Protection could only say, “Nothing has been finalized yet. To say that something will be cut off is way premature.” (18)

The stakeholder’s meeting held at Harlingen pointed out two very important trends that would run the length of the federal civil case against the university, United States vs. UTB (Civil B-08- 56). The first is that the federal agents on the ground in South Texas either were not being adequately informed by their superiors in Washington or else they were following instructions blindly. Therefore, local and well-meaning agents on the ground in South Texas were caught in the crossfire between their central office in Washington and the national media. Secondly, this fact resulted in what seemed like a pattern of silence and dis/misinformation from the federal government to the local citizens and officials. Some in the know believe that this pattern continues as of this publication. (19)

Because of intense international media coverage, “Zavaleta became a hapless, almost-accidental warrior against the federal government’s plan to build a border wall along the U.S. side of the Texas/Mexico divide.” (20) “I asked the gentleman from Homeland Security if we were going to have to have passports to enter our campus, Zavaleta continued. “ How are we supposed to get in there and out? Would they have a hole in the wall and a checkpoint? There are many people that go there daily. Its huge.” “They’re talking about building this wall, but they’re not talking about maintaining or repairing it,” he said. “The moment it’s finished, it’s going to deteriorate. People are going to poke holes in it, paint graffiti on it. It is just going to be an eyesore. Are they going to come around and fix it or are they just going to walk away from it and let the citizens here contend with it?” (21)

In the pre-construction border wall period, New York Times reporter Ginger Thompson covered Mexican President Vicente Fox’s trip through the western United States, and, at every stop, reporters wanted to know how the border wall would affect the relations between the U.S. and Mexico. Human rights experts claimed that the border wall would reduce the number of deaths as immigrants attempted to walk across the border and into the American Southwestern deserts. The data from 2007-2008 seems to indicate a marked reduction in deaths in the deserts of the American Southwest after the wall’s completion there. However, it is not completely known if the wall was the causative factor or if fewer Mexican immigrants were attempting the desert crossing due to the failing American economy resulting in fewer job opportunities.

In the pre-wall era, Mexican labor experts involved in Mexican presidential politics claimed that keeping Mexicans at home would force the Mexican government to confront their own need for economic development. Arguably, three years into the Calderon administration the economic situation at the border has worsened. At the time of his election, Mexico was producing approximately one tenth or less, on an annual basis, the number of new jobs needed in the country to maintain domestic production. Thompson as saying quoted Felipe Calderon, of the conservative National Action Party (PAN), who would become Mexico’s next president, “The more walls they build, the more walls we will jump.” (22) In fact, wall jumping has occurred at the same intensity as economic development in Mexico.

In October 2007, U.S. Customs and Border Protection Department of Homeland Security delivered a “Right-of-Entry for Survey and Site Assessment’’ request to Dr. Juliet V. Garcia, President of UTB/TSC. The request asked that the “owner” grant to The United States of America a temporary right of entry under the five terms outlined in the document, irrevocable for a period of twelve months from the date of the instrument. The UTB/TSC area to be impacted was described as UTB Property Parking Area and bore the rubric of Renee Smoot, Executive Director of Customs & Border Protection, Office of Finance, Asset Management, and Washington, D.C. (23)

As a show of solidarity, in 2007, Congressman Ortiz held a very high level “off-the-record” (OTR) unpublicized meeting at Rancho Viejo, Texas. Three powerful Congressmen (not from the Valley, with the exception of Ortiz) were present, as well as Cameron and Hidalgo County leaders, Brownsville and McAllen elected officials, one UTB/TSC leader, other elected officials, and scores of federal agents.

During the routine introductions, upon hearing Dr. Zavaleta’s name, the powerful ranking Congressional chairman stated, “Yes, we know who you are,” referring to comments Zavaleta had made in The New York Times and to other media about the border wall. (24) It was obvious that the Congressmen present that day had been very well briefed by their staff. Zavaleta later remarked that, “it was a little scary to be singled out that way.” (25)

Meanwhile, The University of Texas’ award winning student newspaper, The Daily Texan estimated, in November 2007 that, “By the end of 2008, the U.S. Government may spend $2.2 billion for the proposed fence to divide Southwestern residents and their Mexican neighbors.” (26)

This staggering sum seemed incomprehensible, given the extreme poverty and poor economic conditions of south Texas. Elected officials and common citizens alike asked if it would not be wiser to invest that money in jobs and economic development for the border.

An October25, 2007, Texas Southmost College “Resolution Urging Alternatives to the U.S.-Mexico Pedestrian Border Fence”, supported UTB/TSC’s refusal of the government’s request In support of the UTB/TSC administrative position, the TSC Board of Trustees resolved and urged, The government of the United States pursues alternative solutions to a pedestrian border fence that will not divide our institution and our community.(27)

In January of 2008, the student newspaper at The University of Texas at Austin, The Daily Texan, reported that the federal government requested permission to access UT- Brownsville’s campus for the purpose of surveying the planned fence site in October. University of Texas at Brownsville/Texas Southmost College President Juliet Garcia denied the request, claiming that the fence created security and environmental problems and went against the schools mission of fostering relationships between the communities on both sides of the border. (28)

The request was refused, and the federal government implied the threat of a lawsuit in early 2008. In an open letter to the campus community, President Garcia cited five primary reasons for the institution s decision: 1) It would pose a risk to our property investment; 2) It would jeopardize our campus security; 3) It would run contrary to our institutional mission; 4) It would have a negative environmental impact; and 5) It would violate the important historical nature of the campus and other historic sites. (29)

Once again The Daily Texan reported, on January 23, 2008, that, “The University of Texas at Brownsville, along with other landowners in the area, can expect to be sued by the federal government for refusing to allow their property to be surveyed for construction of the border fence.” Such a suit was filed two weeks later on February 2, 2008.(30) On January 31, 2008, Robert Janson, Acting Executive Director of Asset Management, Department of Homeland Security, U.S. Customs and Border Protection, signed a “Declaration of Taking” in the United States District Court Southern District of Texas in Brownsville, Texas. The Declaration of Taking was filed on February 2, 2008, and sought to acquire through the courts 37.52 acres of land controlled by Texas Southmost College. (31)

Attachment “A” of that document states that:

The property [UTB/TSC] is taken under and in accordance with the Act of Congress approved on February 26, 1931,and the Act of Congress approved October 4, 2006, as Public Law 109¬295, Title II, 120 Stat. 1355, which appropriated the funds which shall be used for the taking. (32)

Schedule “B” states that “The public purpose for which said property Is taken is to conduct surveying, testing, and other investigatory work needed to plan for proposed construction of roads, fencing, vehicle barriers, security lighting, and related structures designed to help secure the United States/Texas border within the State of Texas.” (33) The Declaration of Taking contains seven attachments, A through G, including: Authority for the Taking; Public Purpose; Legal Description; Map; Estate Taken; Estimate of Just Compensation ($100 for 37.5 acres of land); and the Names and addresses of Purported Owners (Texas Southmost College and its partner Mark G. Yudof, Chancellor of The University of Texas System).

The same day, February 2, 2008, The United States of America through its Attorney filed a Complaint in Condemnation, [40 U.S. C. 3114], ostensibly due to the refusal of Texas Southmost College and The University of Texas System to comply with the earlier request for access to the land in question.

With these Federal lawsuits filed against Texas Southmost College and The University of Texas System, the stage was set for the showdown in Federal Court to take place in Brownsville, Texas, and a hearing was set for March 19, 2008. A national debate was waged over the merits of a physical infrastructure vs. electronic surveillance. New York Times reporter Julia Preston reported that, “A top Homeland Security Department official said Thursday that a pilot project to create a virtual fence along parts of the Mexican border [in Arizona] had been a success, but he said that the technology was never intended to be used and would not be used across the entire length of the border.” (34)

The DHS position on the “failure” of the P-28 project was important because, as the court date approached for UTB/TSC, the university’s primary defense was based on the fact that electronic surveillance in the area of the university would be much more effective than a border wall. (35)

On March 19, 2008, the United States of America met UTB/TSC in federal court in Brownsville, Texas, to hear the case. At that hearing, Federal Judge Andrew Hanen dismissed the civil suit of Taking and Condemnation against the university and asked that the two sides meet to resolve their differences. Juliet V. Garcia, president of UTB/TSC stated, it has been my duty to be a good steward not only of the resources entrusted to me, but also of the values and principles of our democracy. I believe that we have begun to make progress toward a meaningful, consultative conversation to achieve the mutual objectives of the DHS and of the University. (36)

Eleven points were outlined in the agreement signed by Judge Hanen, which required DHS and the University to work out a deal in an amicable fashion, which did not take up the time and resources of the federal court. President Garcia stood on the steps of the federal courthouse and said:

“We are pleased that we have an opportunity to participate in meaningful discussions with DHS as we continue to seek a mutually acceptable solution that will allow us to maintain our fundamental mission in higher education” (37)

UTB/TSC’s failure to agree to the right of entity was followed by the Department of the Army Offer to sell real property- RGV- BRP-4000E Project PF225, Tract No. RGV-BRP-4000 and 4000E contain the rubric of Hyla J. Head, Chief Real Estate Division, filed in the Texas Southern District Court on June 19, 2008.

Almost two years after their original article on the border wall, it was reported that “The Congress had allotted an additional one billion dollars for the border wall in 2008 and that the Department of Homeland Security had erected approximately 150 miles so- called pedestrian fencing and that they will add another 225 for a cumulative total of approximately 370 miles of fencing.” (38)

The border wall was now a looming reality in the Lower Rio Grande Valley, its construction moving from west to east down river, with urgency that it be completed before the inauguration of the next American President in January 2009. Homeland Security spokesperson Laura Keener cavalierly referred to a border wall lawsuit in Eagle Pass federal court, saying:

“This is just the first of 101 similar lawsuits the justice department planned to File, including 71 in Texas. For those landowners who have not or will not sign, we are moving forward with court cases.” (39)

As the actual border wall drew near, the topic of the government’s request to access university land for the construction of the border wall was the topic of hours of discussion at the highest levels of the UTB administrative councils. Finally, there was no question that it must be opposed. “In response to not-so-veiled government threats against UT-Brownsville, Dr. Antonio “Tony” Zavaleta, said that “He believes the lawsuits have raised the stakes for UT-Brownsville and that I don’t believe there has been a federal border action of this magnitude since the United States invaded sovereign Mexico (in 1845).” (40)

With this quote, Dr. Zavaleta, a UT Brownsville Vice President, had become the proverbial, “bur-under-the-saddle” of some in Austin. In addition, his soft “censorship” led to a major unintended bifurcation in UTB’s comments and positions vis-a-vis the media.

It was suggested to Zavaleta that it would be wise to tone down his comments. Overnight, Zavaleta had become a lightning rod, and “too hot” to play any meaningful role in the upcoming negotiations with the federals. In fact, after The Daily Texan article, Zavaleta was only quoted in the media as an anthropologist and border expert and not as a university official.

From the very start of the protest, south Texans felt that the so-called border wall was an affront to humanity. This may be drawn from a description of the first phase of the border wall as a formidable barrier in The Secure Fence Act: “The Secretary of Homeland Security shall provide for at least two layers of reinforced fencing, the installation of additional physical barriers, roads, lighting, cameras, and sensors” along up to 850 miles of the United States ‘southern border.” (41)

A second phase of border wall was planned as it was described in the DeMint amendment and remained in play in the U.S. Congress right up until the first week of October 2009, when it was finally defeated. Finally, in early 2008, the federal government announced that it planned to proceed with the construction of the border wall in the three southernmost Texas border counties: Starr, Hidalgo and Cameron.

The people of the Lower Rio Grande Valley finally coalesced in numerous and sustained peaceful demonstrations and other collective actions protesting the construction of the border wall, but to no avail. The Border Coalition of governments, the Border Alliance, the Border Ambassadors, and many other groups held rallies and protests from Del Rio to Brownsville. Mayors and County Judges began preparing background and briefing materials. (42)

Valley Congressmen Cuellar, Hinojosa, and Ortiz seemed to be sympathetic in their opposition to the border wall, but they were powerless to stop its construction and were cautious in the run-up to the presidential election, not wanting to offend or to have their position effect district federal funding.

In January of 2008, the other shoe dropped for UTB/TSC when it became apparent that the main university campus (located in downtown Brownsville and along the river approximately one river mile south of the ITECC center) was directly threatened by the construction of the border wall and a federal suit. UTB/TSC first received a Right-of-Entry for Survey and Site Assessment request from U.S. Customs and Border Protection and the Department of Homeland Security. While it would have been very easy to comply with this non-binding federal request, the UTB/TSC leadership believed that its educational mission required them as stewards to defend the university’s land and to deny access. (43)

The land below the Gateway International Bridge and along the university’s Fort Brown Golf Course includes a National Historic Site: that of the first “battle” of the Mexican American War. It was just south of the IBWC levee on the golf course where Major Jacob Brown fell in battle while mounted atop his horse. Major Brown became the city’s namesake. The border wall proposed to “wall off” this historic site, effectively returning land where American blood was shed in battle to Mexico. This first cannonade at Fort Texas was quickly followed by the historically acknowledged “first’’ battles of the Mexican American War, at Palo Alto and Resaca de la Palma, both in or near Brownsville, Texas. (44)

The federal request to access university lands for the purpose of survey and construction caused the proverbial “line-in-the-sand” to be drawn, denying the federal government access to university land. (45)

It was the government’s move, and they quickly countered the university’s denial with a condemnation notice filed in U.S. federal court in Brownsville. The debate over the construction of the border wall would not take place with gunfire as it had in 1845, but would be played out by the verbal volleys of attorneys in a federal courthouse. (46)

The federal government filed several other lawsuits against individual landowners in the area, which would also be heard. The cases of the defenseless small landowners, both upriver and downriver from Brownsville, ended rapidly with federal judges throwing their cases either out or by ruling in the government’s favor.

Ironically, on Friday, February 29, 2008, Illinois Senator Barack Obama spoke to religious leaders on the UTB/TSC campus. Obama s biggest response from the crowd came when he supported the concept of surveillance, patrols, and technology in securing the nation’s borders in lieu of a physical infrastructure:

“We are literally just 500 yards from the border and apparently, this campus, and I do hope to look at it, but it is my understanding that the Department of Homeland Security was intending to place a fence right through the campus. That is foolish. It is an example of not consulting with local and state officials who understand these communities and who can best figure out how to solve the problem.” (47)

The sentiment of UTB administrators, the TSC board of trustees, and most other elected officials was thus confirmed by the man who would become the next President of the United States.

After a period of wrangling and preparation, with the government and the college at an impasse, the government’s case against UTB was heard in federal court on March 19, 2008. Both sides were prepared, with the government bringing in their top staff of attorneys from Washington, while the Office of General Counsel of the University of Texas System in Austin led the UTB/TSC defense team. Numerous local attorneys lined the walls of the federal courthouse in Brownsville, much like the twelfth man squad at a Texas A&M University football game.” (48)

University attorneys laid out a case for the implementation of alternatives to a wall, while the federal government argued that, all alternatives having been considered and dismissed; the wall had to be built pursuant to the law. It was the only option they would consider. The federal government placed the federal law in contention as their principal legal basis while the university attorneys plead for reason, the use of technology, and the creation of jobs for the area.

The federal judge set aside a decision asking the two sides to agree to mediate the issue and to come back with a reasonable solution. However, Federal Judge Andrew Hanen did dismiss the governments condemnation suit and ordered the parties to meet in meaningful consultation in looking for an alternative. (49)

Ninety days were given for this alternative-seeking process, and a hearing date was set for June 30, 2008. (50) The Order of Dismissal signed by Judge Hanen contains ten points:

1) The order is without prejudice to the Defendants’ rights;

2) The Plaintiff’s (US Government, employees and contractors shall have the right to enter upon the property for the purpose of assessing methods of securing operational control of the border through the use of tactical infrastructure (border wall);

3) In conducting its studies, Plaintiff will consider Defendants’ unique status as an institution of higher education;

4) Plaintiff will take all reasonable action to promote safety and minimize any impact on the educational activities on the property;

5) Plaintiff is granted access to the property for six months;

6) Plaintiff shall give Defendants prior notice to all activities on the property;

7) All tools, equipment and other property taken upon or placed upon the land by Plaintiff shall be removed at the time of expiration of the right of access;

8) Plaintiff will, at its option, either repair damage or make an appropriate settlement for damage;

9) Plaintiff will not clear land without the Defendants’ consent and,

10) The case is removed from the docket, however the Court retains jurisdiction to resolve interpretations of this Order. (51)

The agreement order was significant for several important reasons,

Homeland Security (DHS) asked for eighteen months of unlimited access into the very heart of the UTB/TSC campus and absolved DHS from any damages that might result from work on the campus; the agreed order limited access to six months inside a much smaller area. This area was restricted to the land adjacent to the levees and required DHS to either repair the damage or make an appropriate settlement. (52)

The federal court order specified that DHS would not be allowed to clear land or otherwise to alter the physical landscape of the university, and required DHS to give campus police prior notice of all activities on the property and to take all reasonable action to promote safety and to minimize any impact on our educational activities. By entering into the agreement, DHS consented to consider the university’s

Unique status as an institution of higher education, to jointly assess alternatives to a physical barrier, and to conduct investigations in order to minimize the impact of any tactical infrastructure on the environment, culture, commerce and quality of life for the communities and residents located near the university. (53)

The court order was judged highly significant; Judge Hanen recommended that DHS consider using the process set out for negotiation as a “template” for dealing with other landowners regarding the border fence. Therefore, UTB/TSC, in good faith, agreed to allow DHS access to the campus under the terms of the agreed upon order and began collaborating fully with representatives from DHS, Customs and Border Patrol, and the U.S. Army Corps of Engineers.

After the agreement was laid out and agreed to, the UTB/TSC negotiating team made continuous and repeated attempts to meet with DHS. Because DHS was non-responsive, these attempts were finally deemed futile and nonproductive. Texas Southmost College attorney Daniel L. Rentfro Jr. sent an initial letter to Mr. David Pagan (Advisor to the Commissioner and State and Local Liaison, U.S. Department of Homeland Security, Washington, D. C.) on April A, 2008, in which he requested that DHS comply with the Judges’ ruling and meet with the UTB/TSC negotiating team. (54)

The Rentfro letter was answered on April 15, 2008, by Mr. Pagan, who stated, on the one hand, that, “CBP stands ready to lead efforts to discuss potential alternatives to physical barriers with UTB/TSC,” and then, lower in the same paragraph, stated, “CBP cannot engage in endless deliberation on alternative ideas.” (55)

It is clear from this statement on April 15, 2008 and from DHS action in the weeks afterward that they had no intention of negotiating or respecting the Federal District Judge s ruling.

Mr. Rentfro answered on April 18, 2008, thanking Mr. Pagan for a visit [presumably in Washington] and he indicated UTB/TSCs intention to set up a meeting with DHS for the week of April 28, 2008. In an insightful statement, Mr. Rentfro stated, “There have been several meetings between representatives of CBP and the University to date. Those meetings essentially (have) been opportunities for DHS to inform the University of DHS’s unilateral decision to build a fence through the middle of the University Campus. It is time to move beyond that and to perform the joint assessment contemplated by the courts order.” (56)

On May 1, 2008, before his untimely death in an airplane crash over northern Mexico, International Boundary and Water Commissioner, Carlos Marin, informed the DHS that the construction of any physical infrastructure along the floodplain in the area of Brownsville, Texas, would, according to treaty, require the Republic of Mexico’s approval. (57)

In his May 9, 2008 letter to Ms. Erin E. Vespe, U.S. Customs & Border Protection, U.S. Department of Homeland Security, Washington, D.C., Mr. Rentfro refers to a letter of May 2, 2008, which is not available to this author at the time of writing, and summarizes an April 29, 2008 meeting between the UTB/TSC negotiating team and DHS. Rentfro states that, “UTB/TSC has been very consistent in its position that a fence along the current proposed alignment is not a satisfactory plan in that it funnels illegal traffic into the heart of the UTB/TSC campus.” UTB/TSCs position makes little sense here since the campus has been a major thoroughfare for illegal aliens ever since this author arrived on campus in 1976. It is clear from Rentfro s letter that DHS had placed in discussion (as an option) a so-called “movable” fence, which UTB/TSC rejects since it is not clear who will remove it in a time of emergency such as a hurricane. (58)

The temperature rose, and DHS demonstrated clear frustration with the UTB/TSC negotiators in a May 27, 2008, letter from Erin Vespe to Mr. Rentfro. Ms. Vespe, an agent of DHS, stated,

“Your May 9, 2008 letter states that it is the University of Texas at Brownsville’s (UTB) position that Congress’ mandate to complete construction of the priority miles “is not particularly relevant to the actions taken” at UTB. You further indicated that to the extent UTB did find Congress’ mandate relevant, “it imposes an artificial and unreasonable restraint” on the involved parties.”

This DHS reaction is due to Ms. Vespe s perception of defiance on the part of the UTB/TSC negotiating team and their negative comments both against DHS’ intentions and those of Congress. Furthermore her comments refer to UTB/TSC’s suggestion that no wall is built at all on the UTB/TSC campus before December 31, 2009 and or the final required miles be built somewhere else. Ms. Vespe states,

“I do take issue, however, with your assertion that the removable fence [that the government offered UTB] proposal “fails to meet the provisions of Judge Hanen’s order, which calls for a joint assessment of security alternatives (emphasis in original).” (59)

In her letter, Ms. Vespe castigated UTB negotiators for dragging their feet, for offering no alternatives, and for suggesting that a taskforce be created to study the matter. At this point, the June hearing in Federal Court before Judge Hanen was right around the corner with little being accomplished:

DHS will not disclose the requested information [for a UTB/TSC hired consultant] nor will it participate in a task force that examines our security or operational requirements. Since April 23, 2008, we have asked UTB/TSC to present alternatives to a physical barrier for DHSs consideration. To date, your clients have not presented any alternative for our assessment, nor have they formally replied to DHS s proposal to utilize a removable fence. UTB/TSC’s belated suggestion that we create a task force to consider alternatives, offered more than two months after the Court’s order and six weeks after we first solicited input, confirms that, neither UTB nor TSC has any alternative to present for DHS’s consideration at this time. Accordingly, DHS will proceed with its plans to construct the border fence in the current proposed location pursuant to our operational requirements. (60)

As if distrust and paranoia is not enough, e-mail records between Dan Rentfro and the government, dating from June 2, 2008, indicate that UTB/TSC sought to voice record the meetings between the two, with the government disallowing. (61)

On June 3, 2008, a wild card was thrown into the mix with the arrival of a letter from the Department of the Army to Mr. Renfro, requesting the sale of the UTB/TSC property in question, even though a Federal Court date was looming.

“By delivering this letter, the U.S. Government is initiating negotiations to purchase these interests in your client’s land. Our offer represents a market derived determination of value.” (62) The Department of the Army offered UTB/TSC $49,450 for their interest in the land and ostensibly to make the lawsuit go away.

Contrary to the Federal court’s agreement, DHS bluntly stated that it was not interested in seeking alternatives to their plans for the construction of the border wall in the area of UTB/TSC in Brownsville, Texas. This DHS position was in direct defiance to the federal judges’ request that the two parties work together. UTB/TSC, on the other hand, complied with the court order, investing hundreds of hours, engaging the services of experts to seek alternative mechanisms for providing a secure border and at the same time the safety of our students and university community in general.

In one of the final salvos sent by DHS to Mr. Rentfro before the scheduled June 19, 2008, hearing, DHS representative Erin Vespe, Office of Chief Counsel wrote:

“I am writing to follow-up on certain issues raised at our meeting on June 2, 2008 in Brownsville, Texas. At Monday’s meeting, the University of Texas (UTB) and Texas Southmost College (TSC) proposed the creation of two task forces: one to study alternatives to a physical barrier, and the second to address ways to minimize the impact of the fence on UTB/TSC’s campus.” (63)

UTB/TSC apparently hired consulting firm Modern Technology Solutions, Inc. (MTSI) to examine technological alternatives to the border wall. Mr. Frank Perry of MTSI requested materials of DHS that DHS was unwilling to provide. Weeks passed. Ms. Vespe continues, in her letter to Rentfro,

“Since April 23, 2008, we have asked UTB/TSC to present alternatives to a physical barrier for DHS’s consideration. To date, your clients (UTB/TSC) have not presented any alternative for our assessment, nor have they formally replied to DHS’s proposal to utilize a removable fence. UTB/TSC’s belated suggestion that we create a task force to consider alternatives, offered more than two months after the Court’s order and six weeks after we first solicited input, confirms that neither UTB nor TSC has any alternative to present for DHS’s consideration at this time.” (64)

On June 19, 2008, President Garcia issued an open letter to the university community stating:

“By entering into the agreement, DHS consented to consider our unique status as an institution of higher education, to jointly assess alternatives to a physical barrier, and to conduct investigations in order to minimize the impact of any tactical infrastructure on the environment, culture, commerce, and quality of life for the communities and residents near the university. The Department of Homeland Security has decided to renege on their March 19th agreement to work with us and instead is attempting to force upon us a fence that it knows to be poorly sited. DHS explains this lesser choice as a consequence of needing to satisfy a deadline set in the Secure Fence Act. While it should be demanding the means to offer the best solution, it instead seems willing to rush into a less effective, more expedient one.” (65)

In her June 19, 2008 letter, President Garcia indicates that a Motion for Relief has been filed in federal court in reaction to a notice received from the Department of the Army indicating their intention so seize university land. A hearing was set for June 30, 2008 to discuss this issue. Indicating university support of homeland security, Garcia concluded with a sentiment shared by most students, faculty and staff, The University of Texas at Brownsville and Texas Southmost College share the commitment that Congress and our nation have to protecting our homeland.

We know that Americas security is a national responsibility. However, we also know that what is needed is authentic security, which can only be achieved with it deploys all of our assets, including fully resourced enforcement, a stable economy, trustworthy and open governance, and an educated citizenry. Further, we are duty bound to preserve the safety and security of our student faculty and staff. We believe in protecting our borders. However, we also believe that the rule of law and the principles that guide our democracy must also be protected. These include open and fair government processes and the property rights of individuals and state institutions. We deserve to be treated fairly and given the due process afforded by our laws. No more, but certainly not less. (66)

On June 19, 2008, the two sides met once again in Brownsville s Federal District Court. The Defendants’ filed a motion for relief under order of dismissal.” (67)

The Order of Dismissal filed by UT System Office of General Counsel, Mr. Barry D. Burgdorf, offers the reader the most complete overview of correspondence available between Defendant and Plaintiff between March 19, 2008 and June 19, 2008:

Attached to this Motion as Exhibit B is a June 6 letter from Erin Vespe, Counsel for U.S. Customs and Border Protection (“CBP”). That letter is remarkably candid in its expression of Plaintiffs disregard for the Court’s order.

Among the more telling statements are:

“The Department of Homeland Security’s (DHS) operational and security requirements are solely within DHS s discretion and therefore, are not subject to assessment by a private entity.”

“We have asked UTB/TSC to present alternatives to a physical barrier for DHS s consideration. To date [TSC and UTB] have not presented any alternative for our assessment, nor have they formally replied to DHS’s proposal to utilize a removable fence.” UTB/TSC’s … suggestion that we create a task force to consider alternatives … confirms that neither UTB nor TSC has any alternative to present for DHS’s consideration at this time.”

• “Therefore, DHS has concluded that there are no known alternatives to a physical barrier that would provide an adequate

 

• “Accordingly, DHS will proceed with its plans to construct the border fence in the current proposed location pursuant to our operational requirements.”

The above statements demonstrate the failure of Plaintiff to comply with the Court’s order. The following summary of events puts those statements in perspective.

  1. March 19, 2008: This Court dismisses Plaintiff’s Complaint in Condemnation, and enters the previously referenced Order of Dismissal, which includes the order that DHS “jointly assess with [UT/TSC] alternatives to a physical barrier.”
  1. April A, 2008: Counsel for TSC writes to David Pagan, State, and Local Liaison for the Department of Homeland Security, informing him of members of the UT/TSC working group for the joint assessment, and requesting that DHS identify corresponding persons from DHS.
  1. April 15, 2008: Mr. Pagan responds to that letter, states that “CBP stands ready to lead efforts to discuss potential alternatives to physical barriers with UTB/TSC” and proposes a joint meeting on April 23, 2008.
  1. April 18, 2008: Counsel for TSC confirms an April 23 conference call, preliminary to an April 28 meeting that would begin the joint assessment of alternate ways of achieving DHS’s security goals.
  1. April 29, 2008: Representatives of UT, TSC, DHS, and the International Boundary and Water Commission (“IBWC”) meet. DHS makes no proposals for alternatives to a physical barrier, and proposes instead as its sole alternative the placement of a “temporary” fence on the north side of the levee, while UT/TSC attempted to persuade IBWC to allow a fence around the golf course. UT/TSC notes that the temporary fence as proposed posts the same security problems soil adverse impact on the educational mission of UT/TSC as a permanent fence.
  1. May 9, 2008: Counsel for TSC again urges DHS to participate in a joint assessment of alternatives to a barrier and informs DHS that UT/TSC is “in the process of assembling a team that will include security consultants, hydrologists, biologists, and archeologists.”

7. May 19, 2008: Counsel for TSC informs DHS via email that TSC has appointed Michael Putegnat project coordinator and that TSC is in the final stages of hiring two subject matter consultants, and requests that DHS disclose what activities DHS has taken in connection with the joint assessment of alternatives to a fence.

8. May 27, 2008: CBP, through counsel, responds to May 9 letter and May 20 email, stating:

a. The only assessment of alternatives by DHS was done prior to Court order;

b. The only proposal currently in play by DHS is a temporary fence.

9. May 30, 2008: TSC, through counsel, suggests that June 2 meeting be audio-recorded. DHS refuses.

10 June 2, 2008: Parties meet. The meeting begins with Border Patrol Chief Ron Vitiello stating that assessment of alternatives to a fence is a “waste of time.” UT/TSC introduces members of working team to assess alternatives to a physical barrier and to discuss how to minimize impacts on the campus area. The UT/TSC team includes respected experts from Modern Technology Solutions, Inc. (MTS1) a company recognized for systems engineering, testing and evaluation, and operational concept development in the field of homeland defense. In reliance on the Court’s order of March 19, 2008, UT/TSC has entered into a contract with MTSI for the assessment and has committed funding and resources to the Project. DHS refuses to name any corresponding persons, other than its counsel.

11. June 3, 2008: USACOE informs UT/TSC of its intent to acquire TSC real estate, and makes offer to purchase. Offer is not supported by appraisal.

12. June A, 2008: Frank Perry representative of MTSI, requests information from DHS to further TSC assessment.

13. June 6, 2008: DHS, through its counsel, informs UTB/TSC that it will provide no information in response to the Perry request and reports that it is proceeding with construction of the fence as originally planned without any joint assessment of alternatives. Plaintiff’s behavior, culminating in the June 6 letter (Exhibit B), demonstrates basic disregard for the Courts order and authority in this matter, and indeed for the very agreement made by Plaintiff.

Specifically:

Plaintiff says, “The Department of Homeland Security’s operational and security requirements are solely within DHS s discretion and, therefore, are not subject to assessment by a private entity.’’ However, the order, to which DHS agreed, says, “Plaintiff, acting through the Department of Homeland Security, will jointly assess with Defendants alternatives to a physical barrier.” Defendants agree that they have no power to dictate operational decisions to DHS. However, this Court clearly has the power to order DHS to review those requirements with Defendants. Moreover, Plaintiff has the power to voluntarily do so, as it agreed in the Order of Dismissal. It would appear to be disingenuous to agree to jointly assess alternatives to a physical barrier, and then say that DHSs operational and security requirements are not open to discussion or review.

Plaintiff says, “We have asked UTB/TSC to present alternatives to a physical barrier for DHS’s consideration. To date [TSC and UT] have not presented any alternative for our assessment, nor have they formally replied to DHSs proposal to utilize a removable fence.” As much as anything, that sentence indicates Plaintiff’s complete disregard for the Court’s authority in this matter. Instead of working with Defendants to jointly assess alternatives, Plaintiff demands that Defendants present alternatives, presumably to be accepted or rejected in Plaintiff’s sole discretion. The only “alternative” to a physical barrier proposed by Plaintiff is a physical barrier. When Defendants name a working group to move forward with a joint assessment, Plaintiff virtually by return mail refuses to name participants in the working group, refuses to provide Defendants’ consultant with any information, and unilaterally terminates the joint assessment before it ever began.

“UTB/TSC’s belated suggestion that we create a task force to consider alternatives, offered more than two months after the Court’s order and six weeks after we first solicited input, confirms that neither UTB nor TSC has any alternative to present for DHS’s consideration at this time.” That assertion is simply not true. As the correspondence shows, Defendants first informed Plaintiff that they were organizing a working group, and requested participation by Plaintiff, on April A 2008. Defendants restated that request on May 9 and May 20 2008. The Order of Dismissal does not order Defendants to present alternatives for DHS’s consideration. It orders the parties to jointly assess alternatives. Defendants have attempted to do so and stand ready to move forward. DHS’s assertion, on the other hand, demonstrates its intentional disregard for the Court’s order. Consequently, it is clear that Plaintiff will not comply with the order without Court intervention.

Plaintiff says, “Therefore, DHS has concluded that there are no known alternatives to a physical barrier that would provide an adequate level or persistent impedance to secure our border 51 within the time frame mandated by Congress. Accordingly, DHS will proceed with its plans to construct the border fence in the current proposed location pursuant to our operational requirements.” Once again, Plaintiff manifests its disregard for the Courts order, by unilaterally terminating the discussions, without even a passing attempt to comply with the Court order that the parties jointly assess alternatives to a physical barrier.” (68)

As a companion, Dan Rentfro (representing TSC) filed a similar Order on Defendants’ Motion for Relief Under Order of Dismissal. (69)

President Garcia issued an accompanying statement June 19, 2008:

Instead of working under these dictates of the order, they (DHS) chose to move forward with their original plan to construct the fence in the exact same location and manner as previously announced, and to move to seize our land for a token payment. We have been disappointed with DHSs and Customs and Border Patrol’s (CPB) lack of cooperation as laid out in the order. We have invested the equivalent of hundreds of hours of hard work by faculty, staff, administrators, and volunteers. We have conducted research and gathered information, assisted by some of the best security experts in the country, to seek alternative mechanisms for providing a secure border and safety for our students and university community. (70)

On June 30, 2008, U.S. Federal Judge Andrew Hanen ordered UTB/TSC and DHS to, “Continue jointly assessing alternatives to a border fence as mandated by the previous agreement in March.” (71)

The openly frustrated Hanen said: “I do think a joint assessment means sitting down with people in the same room with authority and expertise to exchange ideas. I urge both sides to try to work with each other, ultimately benefiting both sides. It seems it cries out for a solution. (72)

UTB/TSC and DHS would be back in court on July 31, 2008. Attempts to work responsibly and transparently, engaging DHS in the joint assessment process were summarily dismissed by DHS. Instead, DHS unilaterally proceeded with its original plans for constructing the border wall how and where they wanted to. (73)

DHS explained their actions as a consequence of needing to satisfy a deadline set in the Secure Fence Act. While one would think that DHS would demand the best solution in the interest of the community, it instead was willing to defy a federal judge and to rush into a less effective, more expedient decision to “just get the damned thing built on time.” (74)

As ordered by the court, the two parties came together in the United States District Court in Brownsville on June 30, 2008. At this re-hearing, it was immediately obvious that DHS had made no effort to find an alternative in direct defiance of the court order. In an ignoble look of frustration, Judge Hanen gave the federal government thirty days to reach an agreement with the university. He directed his remarks to the government officials present: “I do think a joint assessment means sitting down with people in the same room with authority and expertise to exchange ideas. I urge both sides to try to work with each other, ultimately benefiting both sides. It seems to cry out for a solution. (75)

In the thirty days after the June 30, 2009, federal court hearing, numerous face-to-face meetings were held, both at the local level and in Washington. The UTB/TSC negotiating team (consisting of President Garcia, Dan Rentfro Jr., Ben Reyna, Michael Putegnat, and Wayne Moore) shuttled back and forth from Brownsville to Washington.

Meanwhile, on the “Hill,” Democratic Congressman Raul Grijalva of Arizona was attempting to have his subcommittee on National Parks, Forests, and Public Lands of the House Natural Resources Committee, introduce and pass the Borderlands Conservation and Security Act. In April of 2008, Representative Grijalva held a subcommittee hearing for his bill at the University of Texas at Brownsville and Texas Southmost College attempting to bring attention to the border wall situation in the area. Present at this historic meeting was Republican Representative Duncan Hunter of California (author of the Secure Fence Act) and Colorado Republican Representative Tom Tancredo (a strong supporter of the border fence). Chairman Grijalva’s support for a border without a border wall may be summed up by his words, “The administration is an animal unto itself. If you are not for waiving thirty-six laws, building a fence, and putting the safety of the nation above a species, then you are obviously pro-terrorist, open borders, and don’t care about the security of our nation.” (76)

On July 31, 2008, representatives of the U.S. Department of Homeland Security and of the University of Texas at Brownsville and of the UT System once again met at the federal courthouse in Brownsville, indicating to Judge Hanen that they had reached an agreement, which would end all further court proceedings between the parties. UTB/TSC News reported, “UTB/TSC and DHS reached an agreement today (July 31, 2008) that ends all court proceedings between the parties. DHS/CPB has agreed to end condemnation actions against UTB/TSC, effectively allowing UTB/TSC to retain ownership over all of its property.” (77)

As part of the agreement, UTB/TSC would enhance campus security in two ways. University-owned fencing adjacent to the levee would be augmented to a height of 10 feet and upgraded with high-tech devices. The current institutional fence varied between six feet and eight feet. The enhancements to UTB/TSC s perimeter security, which would come at the university’s expense, would complement methods already in use on the campus.” In a statement of faith, President Garcia said, “This agreement demonstrates the hard work and good faith that were brought forth when the parties finally sat down at the table and talked about what solution would best serve the mutual interests. (78)

On August 5, 2008, the formal agreement between UTB/TSC and

DHS was filed in U.S. District Court in Brownsville, Texas. The agreement (which contains twenty-seven points) is signed by UTB/ TSC President Juliet V. Garcia, Interim Chancellor of the UT System Kenneth I. Shine, Vice Chancellor and General Counsel Barry D. Burgdorf, and David V. Aguilar, Chief, United States Border Patrol for the government. Of major significance is point number 3, which states that, “UTB/TSC will, at its own expense, improve and/or install a pedestrian fencing system by December 31, 2008 along the alignment represented in the agreement.” (79)

UTB/TSC border wall pre-construction meetings began, and on August H 2008, at a regular meeting of the University Of Texas Board Of Regents in Austin, the Regents commended UTB/TSC for its position and stance on the border wall, and then agreed to appropriate money for the required upgrade of the current fence to meet the federal requirements. As a result of the agreement and of generous grant from the UT-System, UTB/TSC was able to upgrade approximately one mile of existing institutional fence at a cost of $1 million. The fence upgrade was completed in a timely fashion under the leadership of Dr. Wayne Moore and is indistinguishable from any regular university or institutional fence. (80)

At the University of Texas, Board of Regents meeting Regent Caven commented:

“I would like to express our sincere appreciation to the many individuals who worked so diligently to find a compromise outcome that would satisfy the responsibilities of both UTB/TSC and the US Department of Homeland Security related to the construction of the proposed border fence (at UTB/TSC in Brownsville, Texas).” (81)

The bid for the construction of the upgrade at UTB/TSC was eventually awarded to Thrall, a Texas-based construction company, for $1.04 million.82 Finally, the border wall at UTBTSC became an “enhancement” of an already existing institutional structure. (82) Shortly after the completion of the “enhancement,” in February 2009, the university celebrated its “victory” with a public event at the border wall by planting several hundred climbing jasmines along the north, university side of the fence. True to form, the federal government made its displeasure known and questioned the university’s right to undermine the wall by planting flowers. (83)

Three hundred volunteers including Master Michael Anthony Zavaleta, one year of age, attended with his parents and actively participated in the planting. (84)

The $1.04 million, 10-foot high fence complements the natural landscape on the campus’ southern edge near the levee bordering the Rio Grande River(85) The agreement with the federal government, which also required UTB/TSC to invest in technology security equipment, will eventually be covered with vines and wildflowers. (86)

At the time of this writing, in early 2010, one section of the UTB fence at the point where UTB/TSC property meets GSA property was still in contention. How to connect the two styles of fence, a gate, and electronic spy gear is still a point of contention.

The federal government eventually sued all of the small landowners in Cameron County who defied their access request and who lacked power and resources to defend themselves. Negotiations continued with the City of Brownsville for the construction of the border wall in the e area of downtown Brownsville. On June 21, 2009, the No Border Wall Blog reported that the Brownsville City Commission gave in to DHS demand that the city give away city property to build the border wall.

On two previous occasions, it was reported that the city attempted to do this and met with widespread opposition from Brownsville citizens. The Brownsville City Commission committed itself to building the border wall in the area of downtown Brownsville at the city’s expense due to their intention to control design features consistent with plans to develop a river walk and arts district. The city agreed to give up 15 acres of land the DHS valued at $123,000.

In return, DHS planned to build a so-called “floating fence,” which can be dismantled in time of emergency. It is not known who will dismantle it, at what cost, or who will pay for it in future emergencies. In downtown Brownsville, the border wall will most likely be built on the flood plain, and therefore be completely submerged when a major hurricane makes landfall in Brownsville. DHS claims that the so-called floating fence cost will be between $12 to $16 million dollars per mile, as constructed in Hidalgo County (at 2009-dollar values).

Finally, a last minute surprise provision in the City of Brownsville’s contract with DHS specifies that, if the local border wall built by DHS is ever replaced by a city wall consistent with tourism, its construction expense will be borne by the citizens at the cost of from $20 to $30 million dollars (estimated in 2009 dollar values). It is unlikely that the City of Brownsville would ever have the money to complete such a project, so that the wall to be built by the federal government will likely be there forever. (87) Additional! In late 2009, a lawsuit was filed in federal court by Harlingen land developer Rollins Kopple, claiming damages by the border wall in the area of his development, the site of the “Amigoland” area of Brownsville between the IBWC levee and the City of Brownsville levee located on the river.

Afterword

More than thirty years ago, as a doctoral student at The University of Texas at Austin, I was dissuaded from studying the U.S. – Mexico border because it was considered irrelevant and not supportive of a career in anthropology. Fortunately, I did not follow that admonishment, as the U.S.-Mexico border has been a topic of great intensity for the entirety of my professional career. (88)

Over the course of my forty years of studying the border, the proposal to spend billions of dollars on a wall separating our populations and peoples as a “so called” solution to illegal immigration and homeland security is just the most recent example of decades of border neglect, abuse, and ridiculous ideas.

For the past 150 years, the border has been irredentist, that is, occupied by a subjected majority, and ruled by a dominant minority. Because of this imbalance, policy and attitude toward the border and the people of the border has led most recently to this atrocity called a border wall. In many ways, the U.S.-Mexico border is a paradox, an enigma, which makes little sense to the casual observer.

The construction of a border wall in name of homeland security or of curbing illegal immigration is simply the most recent episode in a history of failed efforts to divide two great countries and peoples, instead of enacting sound economic and social policies to unite them. (89)

Homeland Security is a serious issue that will not go away. What can UTB/TSC do as an institution of higher education? UTB/TSC has proposed the creation of a Texas Center for Border and Transnational Studies (TCBTS) that would promote the ongoing study of the border. (90) strategically located at the south-eastern-most end of the U.S.-Mexico border at the Gulf of Mexico, the Texas Center for Border and Transnational Studies would address critical cross-border teaching and learning

Needs and assist in the facilitation of cross-border policy decisions through the creation and support of a cross-border regional planning component. It would operate in an interdisciplinary fashion that welcomes participation from all internal colleges and schools, students, faculty and staff, as well as collaboration with cross border institutions for the purpose of convening, and conducting applied research intended to assist in informed decision making on the status and condition of the cross-border region. (91)

The establishment of the Texas Center is critical given the need for research on pressing border issues, which will inform policy decisions directed at improving quality of life in the e cross-border region. The Texas Border Center at UTB/TSC would serve as the collaborative anchor at the lower or eastern end of the U.S.-Mexico Border. The type and scope of research envisioned here is not currently being conducted by an institution of higher education on the lower border and only rarely on the border in general. The Texas Center looks forward to the development of a new paradigm for Border Studies, based on applied research intended to assist in the solution of social and economic problems.

Additionally, discussions with public safety, health, and emergency management leadership in our border region support the need for integrative training programs. The Texas Center would focus on training and integration of multi-jurisdictional public safety personnel in technical, operational, and comprehensive public safety strategies critical in meeting national homeland security and emergency management objectives of our cross-border region and nations. Public safety agencies working along the United States- Mexico border face complex and unique challenges in addressing national homeland security concerns and in adopting federally mandated objectives. (92)

Local, county, state, and university law-enforcement agencies along the border must integrate their policing strategies in a multi-jurisdictional border with an overwhelming federal law enforcement presence. Moreover, the exercise of policing strategies must be carefully balanced between national security and open bilateral trade, tourism, and immigration policies. Maintaining a harmonious bi-national environment in a border saturated with the full-spectrum of public safety agencies demands an approach that minimizes the bureaucratic, complex, and fragmented operational methods that unintentionally occur in such environments.

Currently there is no institute that integrates comprehensive strategies in addressing the training and operational objectives of a multi-jurisdictional, cross-discipline, multi-hazard, secure border initiative. The University of Texas at Brownsville and Texas Southmost College is geographically positioned on the border and gulf coast environments to appropriately address homeland, border and port security training and integrate multi-jurisdictional strategies. (93)

Most importantly a Center for border studies including homeland security training would provide our students with added opportunities for employment and career. (94)

In early October 2009 a major gun battle between the Mexican Army and narco-terrorists along Matamoros Tamaulipas Boulevard (which runs along the Rio Grande River) resulted in high-caliber bullets crossing the river and onto the University of Texas at Brownsville campus. Although no one was injured, the large caliber bullets broke out the back window of a student vehicle parked in a university parking lot, and at least one bullet entered the university recreation center where students were attending classes and exercising. The border wall did nothing to stop this form of violence from reaching the United States. (95)

“At times society has to come together to protest against things that are thrust upon you and I believe this is one of those times. All sectors of the community are coming together. I hope it’s not too late,” Zavaleta said. “In fact it is not too late.” (96)

In October 2009, Border Ambassador, Inc. President Jay Johnson-Castro, tireless opponent of the border wall and proponent of the border, reported that H.R. 2892 had been passed by the US Senate, and that the Department of Homeland Security Appropriations Act of 2010 had voted to de-fund any additional money for the construction of the border wall. (97) In January 2010, Border Ambassadors, Inc. held its inaugural meeting in Del Rio, Texas, and Villa Acuna, Coahuila. (98)

The struggle against DHS and the Border Wall continues, as localized and historically significant, if not failed, skirmishes. DHS proposes to destroy the integrity of the Paso Del Indio nature train on the Laredo Community College campus in Laredo, Texas. In a courageous act of solidarity on Thursday, January 28, 2010, The Laredo CC Board of Trustees voted to deny the Federal Government access to their land, just as Texas Southmost College Trustees had done two years earlier. (99)

Now we have only to wait for the border wall to crumble into the earth and become a mere line of rust to be excavated by the archaeologists of the future.

References Cited

  1. The Flatlanders, Hills and Valleys, CD, Borderless Love, New Wave Records, CD 2009.
  1. This paper is an example of applied anthropology in action, and was first presented in a panel discussion at the Society for Applied Anthropology, 69th annual meeting, March 17-21, Santa Fe, New Mexico.
  1. The Daily Texan, November 30, 2007.
  1. Liptak, Adam, The New York Times, Power to build border fence is above US law, April 8, 2008.
  1. Mason, Melanie, The New Republic, June 30, 2008, The border fence folly.
  1. Secure Fence Act
  1. Mason, Melanie, ibid.
  1. November 2007, Environmental Impact Statement for Canal construction, Maintenance,) Operation of Tactical Infrastructure in the Rio Grande Valley Sector, Texas, U.S. Department of Homeland Security, U.S. Customs and Border Protection and U.S. Border Patrol.
  1. Latina Lista, August 23, 2007, Texas-Mexico Border Fence Protests Begin This Weekend, http latina lista.net /2007/08 mexico border fence protests begin, accessed 8/26/2009
  1. Real ID Act H.R. 418 109th Congress,

11 Personal testimony by Antonio Zavaleta, August 27, 2009

12 Ralph Blumenthal, The New York Times, June 15, 2007, Some Texans Fear Border Fence Will Sever Routine of Daily Life.

13 Department of the Army Offer to Sell Real Property RGV BRP4000, project PF225 Tract No. RGV-BRP-4000 and 4000E,

14 Ralph Blumenthal, The New York Timer, January 13, 2008, In Texas Weighing Life with a Border Fence.

15 The Brownsville Herald, United States of America vs. F.E. Zavaleta and Eleanor Reid Zavaleta Civil No. l:08-cv-427, page C6-C7, January 12, 2010; and Declaration of Taking, December I 1.2009, Civil No. l:08-cv-427, filed in The United States District Court Southern District of Texas, Brownsville, Texas; Documents 24; First Amended Notice Document 25; and First Amended Complaint in Condemnation, Document 23.

16 Answer by Anthony Zavaleta, as representative for the estate of F. E. Zavaleta, deceased, and as POA for Eleanor Reid Zavaleta, Februaiy 2, 2010.

17 The Paper of South Texas, 2007, Federal Government Apparently Still Scratching itsHeadOver its own Plans.

18 Ralph Blumenthal, The New York Times, June 20, 2007, Local leaders in South Texas is puzzled and alarmed over the implications of a fence on the U.S.-Mexico border.

19 http://www.bordcrfcnceplanning.com/usbp rio grande valley sector/ p. 1-3

20 The Paper of South Texas, 2007, ob.cit.,

21 Ibid, The Paper of South Texas

22 Ginger Thompson, The New York Times, May 25, 2006, Some in Mexico see Border wall as Opportunity.

23 U.S. Customs and Border Protection Department of Homeland Security, Right-of- Entry for Survey and Site Assessment document.

24 Dr. Antonio Zavaleta was invited to this OTR meeting, participated and was singled out by the congressman.

25 Ibid, Antonio Zavaleta at OTR meeting with federal officials.

26 Amanda DeBard, The Daily Texan, November 30, 2007, U.S.-Mexico fence could help homeland security.

27 Texas Southmost College Board Resolution, October 25, 2007.

28 Ibid, The Daily Texan, January 23, 2009.

29 Open Letter from the President, UTB/TSC January 8, 2008.

30 The Daily Texan, Border fence controversy enters courtroom, January 23, 2008.

31 U. S. Declaration of Taking, Case 1:08-cv-00056 Filed 02/08/2008.

32 U. S. Declaration of Taking, Schedule A.

33 U.S. Declaration of Taking, Schedule B.

34 U.S. Complaint of Condemnation, [40 U.S.C3114, Filed February 2, 2008.

35 Officials Split on Viability of Border-Fence Project, The New York Times, February 29, 2008.

36 UTB/TSC News, UTB/TSC and DHS agree to study border security alternatives, March 19, 2008.

37 Ibid, UTB/TSC News, March 19, 2008.

38 Ibid, The Daily Texan, November 30, 2007.

39 William Guest, The Daily Texan, Harder Fence Controversy Enters Courtroom, January 23, 2009, accessed 8/26/2009.

40 Ibid, The Daily Texas, January 23, 2009.

41 No Border Wall http://www.notexasborderwall.com/ accessed 8/26/09.

42 Zavaleta, Antonio and Yolanda Zamarripa, 2007 A Rapid Response Policy, Analysis Report to: The Mayor of Brownsville, The Honorable Pat Ahumada, On the Proposed Impact to Brownsville, ‘Texas as Described in the Environmental Impact Statement for Construction, Maintenance, and Operation of Tactical Infrastructure, Rio Grande Valley Sector, Texas.

43 U.S. Customs and Border Protection/Department of Homeland, Security Right of Entry for Survey and Site Assessment Project Description/Identifier: UTB Property Parking Area. No Date.

44 The Battles of Palo Alto and Resaca de la Palma.

45 Ibid, Department of the Army Offer to Sell Real Property RGV BRP 4000, projectPF225TractNo.RGV-BRP-4000and4000E.

46 The United States of America vs. 37.52 acres of land, more or less, situated in Cameron County, State of Texas, and Texas Southmost College District et. al., Civil No. B-08-56.

47 UTB-TSC News, Obama Speaks, Brownsville, Texas February 29, 2008.

48 The 12th man tradition at Texas A&M University.

49 The United States of America vs. Texas Southmost College, Defendants’ Motion for Relief under order of Dismissal.

50 Ibid.

51 Order of Dismissal, The United States of America vs. UTB/TSC, March 19, 2008, signed by Judge Andrew Hanen.

52 UTB-TSC News, UTB/TSC and DHS agree to study border security alternatives, March 19, 2008.

53 UTB-TSC News, March 19, 2008.

54 Letter from Daniel L. Rentfro to David Pagan DHS, April 4, 2008.

55 DHS letter from Mr. Pagan to Mr. Rentfro, April 15, 2008.

56 Letter from Mr. Rentfro to Mr. Pagan April 18, 2008.

57 Letter from Carlos Marin, IBWC commissioner to DHS on May 1, 2008.

58 Rentfro letter to Vespe, May 9, 2008.

59 Letter from DHS Ms. Vespe to Dan Rentfro, May 27, 2008.

60 Letter from Ms. Vespe to Mr. Dan Rentfro, June 6, 2008.

61 Letter from Vespe to Rentfro and from Rentfro to Vespe, June 2, 2008.

62 Letter from the Department of the Army to Dan Rentfro, June 3, 2008.

63 Letter from Erin Vespe to Dan Rentfro, June 6, 2008.

64 Ibid, p. 2 of letter.

65 UTB-TSC News, Border Fence Information Message from the President June 19, 2008.

66 President Garcia letter, June 19, 2008.

67 Defendants’ Motion for Relief Under Order of Dismissal, filed June 19, 2008.

68 Ibid p. 1 -8.

69 TSCs Motion for relief under order of dismissal, June 19, 2008.

70 UTB/TSC News, UTB/TSC asks court to enforce agreed order, June 19, 2008

71 UTB/TSC New, Federal Judge Orders Formal Substantive Discussion, June 30, 2008.

72 The United States of America vs. Texas Southmost College Order of Dismissal.

73 Unidentified DHS official or contractor at Grijalva hearing.

74 UTB-TSC News. Federal Judge Orders Formal Substantive Discussions, Brownsville. Texas June 30, 2008.

75 Melissa del Bosque, The Texas Observer, June 27, 2008, Against the Wall.

76 UTB-TSC News, UTB/TSC Homeland Security Reach Agreement on Border Fence, July 31, 2008 78 Ibid, UTB-TSC News.

77 Agreement between DHS and UTB/TSC filed in federal court, August 5. 2008.

78 UTB-TSC News, UTB/TSC to begin fence preconstruction meetings, August 6, 2008.

79 UTB-TSC News, UT Regents Commend UTB/TSC for Work on Border Proposal. August 14, 2008.

80 UTB-TSC New, UTB/TSC Awards Contract for Border Fence Upgrade, October 2, 2008

81 UTB-TSC News, UTB/TSC Commemorating Campus Fence with a Day of Service, February 9, 2009

82 UTB-TSC News University, Community Come Together to Plant seeds of Hope, February 14, 2009

83 UTB-TSC News, ibid.

84 http.7/notexasborderwall.blogspot.com June 2009 p.26

85 http://notexasborderwall.blogspot.com/ p. 11 of 34.

86 On December 12, 2009, The Republic of Mexico awarded Dr. Zavaleta the highest award to a non-Mexican, the Ohtli Award, for an outstanding and exemplary career of study and activity on the U.S.-Mexican border.

87 Baker Institute Policy Report Number 38, April 2009, Developing the U.S.-Mexico Border Region for a Prosperous and Secure Relationship.

88 The Texas Center for Border and Transnational Studies, whitepaper, 2009 University of Texas at Brownsville and Texas Southmost College.

90 Garrett, Terence M. 2008, A Critique on the U.S. Department of Homeland Security and the Border Wall in the Rio Grande Valley, paper originally submitted to the 2008 Annual Meeting of the American Society for Public Administration, Dallas, Texas March 7-11, 2008. Original title: The Rise and Transformation ol the Department of Homeland Security and the Border Fence: An Interpretive-Phenomenological Critique.

91 White paper prepared by Mr. Ben Reyna, Special Assistant to the Provost For Governmental Affairs , for submission to Congress for funding, 2007.

92 From the work of Ben Reyna in preparing documents for the Texas Legislature and other funding agencies.

93 Rio Grande Guardian, Dr. Tony Zavaleta is vice president for external affairs and professor of anthropology at the University of Brownsville. The above text formed the basis of a speech he gave at the “Voices of Vision: Seminar of Community Challenges” event at UTB on October 3, 2007.

95 The Brownsville Herald, October 5, 2009, Tiroteo en Matamoros: Balas llegaron hasta UTB-TSCen Brownsville.

96 Rio Grande Guardian, Dr. Tony Zavaleta, 10/25/2007 UTB/TSC set to pass resolution opposing border wall.

97 Jay Johnson-Castro, Border Ambassador over “No Border Wall Funding, October 27,2009

98 Dr. Tony Zavaleta is a founding board member of the Border Ambassadors and was present at the inaugural meeting.

99 K-mail correspondence from Border Ambassador Jay Johnson Castro to Tony Zavaleta, January 28, 2010.

1 This article first appeared in the Valley History Series, UTRGV.

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