Fence suit against UTB-TSC dropped

BROWNSVILLE - The U.S. government dismissed its border fence condemnation lawsuit against the University of Texas at Brownsville and Texas Southmost College Wednesday and agreed to explore alternatives to a fence with school officials.

The agreement was reached just hours before a hearing was to begin in federal court.

It is no guarantee that the university's golf course and the rest of the threatened 160 acres of campus will not some day be on the Mexican side of a 15-foot fence, but the dismissal order requires the two sides work together.

The government has sued more than 50 South Texas landowners this year for temporary access to survey for the border fence. Many have complained that the access requested was overly broad and sought similar restrictions, but the university is the first to achieve it.

Upon signing the order, U.S. District Judge Andrew Hanen said he hoped the agreement could be a model for other property owners, specifically the Rio Grande City Consolidated Independent School District, which shared similar concerns about disruptions to its campus and impact on its students during a hearing before Hanen Monday.

Hanen has handled dozens of the border fence condemnation lawsuits. While siding consistently with the government, he has always urged more cooperation and outreach from federal officials.

Outside the courthouse, Juliet Garcia, president of UTB-TSC, said some of her intent in rejecting government access before reaching this agreement was to "plow the field" for other property owners.

Hanen thanked both sides for negotiating, which while perhaps slowing progress, was "the process that was envisioned by our Congress."

Under the agreement, the government wins its long-sought access to the campus for six months. The university gets a promise from the government to explore alternatives "to a physical barrier" with the university and to get school consent before even mowing a blade of grass.

Barry Burgdorf, vice chancellor and general counsel for the University of Texas System, said the university will invest its own resources in developing alternatives to the fence. Neither Burgdorf nor the court order specify what those alternatives might be.

School officials had already proposed an alternative location for the fence, which the Department of Homeland Security rejected, according to court records. Negotiations that began Tuesday afternoon in Brownsville and resumed Wednesday morning, were their first productive conversations, Burgdorf said.

The fence as originally proposed would cut through the southern part of the growing university's campus along the top of a levee. Government officials had said they would install a gate where a road now leads to the golf course, but the college feared it would effectively funnel illegal immigrants right into campus while leaving the golf course and historic Fort Brown in a no man's land.

Being located on the Rio Grande, Garcia assured Hanen that she cared about border security, but had a responsibility as university president to the school and her students.

The University of Texas at Brownsville and Southmost Texas College, a two-year school, share the campus less than a mile from the Rio Grande. The schools have grown rapidly in recent years and have a combined enrollment of more than 17,000 students.

Garcia had been one of the border fence's most outspoken opponents. The surrounding community of Brownsville and its sister city of Matamoros across the river are so seamlessly connected that the fence struck many as a blunt instrument conceived by those with little knowledge of the area.

The government has consistently argued that it is under pressure because Congress mandated that there be 670 miles of fence along the Mexican border by the end of the year. So far, less than half is built.

Burgdorf said the "deadline" is meaningless because Congress did not specify where fencing had to be built. In court filings, the schools called it "arbitrary and capricious."

"If you don't build three miles here, you can build three miles somewhere else," Burgdorf said.