B-155027, NOV. 24, 1964

B-155027: Nov 24, 1964

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UNITED STATES SECTION INTERNATIONAL BOUNDARY AND WATER COMMISSION: THIS IS IN RESPONSE TO YOUR REQUEST OF AUGUST 24. THE CONVENTION BETWEEN THE UNITED STATES OF AMERICA AND MEXICO WAS SIGNED FOR SETTLEMENT OF THE CHAMIZAL BOUNDARY DISPUTE BETWEEN THE TWO COUNTRIES AT EL PASO. THE UNITED STATES WILL ACQUIRE APPROXIMATELY 776 ACRES OF LAND NOW SITUATED IN THE SOUTHERLY PART OF THE CITY OF EL PASO. 630.34 ACRES WILL BE TRANSFERRED TO MEXICO AND THE REMAINDER WILL BE USED IN CONNECTION WITH RIGHTS-OF-WAY FOR THE UNITED STATES PART OF A NEW CHANNEL FOR THE RIO GRANDE RIVER AND FOR RELOCATION OF PUBLIC FACILITIES NOW LOCATED IN THE AREA THAT WILL BE TRANSFERRED TO MEXICO. WITHIN THE AREA TO BE ACQUIRED THERE ARE THE 480 STUDENT NAVARRO PRIMARY SCHOOL AND 7.13 ACRES OF THE BOWIE HIGH SCHOOL GROUNDS USED FOR A PLAYGROUND AND VOCATIONAL AGRICULTURAL TRAINING.

B-155027, NOV. 24, 1964

TO THE HONORABLE J. F. FRIEDKIN, COMMISSIONER, UNITED STATES SECTION INTERNATIONAL BOUNDARY AND WATER COMMISSION:

THIS IS IN RESPONSE TO YOUR REQUEST OF AUGUST 24, 1964, FOR ADVICE AS TO WHETHER YOU MAY COMPENSATE THE EL PASO INDEPENDENT SCHOOL DISTRICT AND THE YSLETA SCHOOL DISTRICT FOR LOSSES OR INCREASED EXPENSES RESULTING FROM IMPLEMENTATION OF THE CHAMIZAL CONVENTION.

ON AUGUST 29, 1963, THE CONVENTION BETWEEN THE UNITED STATES OF AMERICA AND MEXICO WAS SIGNED FOR SETTLEMENT OF THE CHAMIZAL BOUNDARY DISPUTE BETWEEN THE TWO COUNTRIES AT EL PASO, TEXAS, TIAS 5515. BY THE TERMS OF THE CONVENTION AND PURSUANT TO THE AMERICAN-MEXICAN CHAMIZAL CONVENTION ACT OF 1964, PUBLIC LAW 88-300, APPROVED APRIL 29, 1964, 78 STAT. 184, THE UNITED STATES WILL ACQUIRE APPROXIMATELY 776 ACRES OF LAND NOW SITUATED IN THE SOUTHERLY PART OF THE CITY OF EL PASO. OF THESE, 630.34 ACRES WILL BE TRANSFERRED TO MEXICO AND THE REMAINDER WILL BE USED IN CONNECTION WITH RIGHTS-OF-WAY FOR THE UNITED STATES PART OF A NEW CHANNEL FOR THE RIO GRANDE RIVER AND FOR RELOCATION OF PUBLIC FACILITIES NOW LOCATED IN THE AREA THAT WILL BE TRANSFERRED TO MEXICO.

WITHIN THE AREA TO BE ACQUIRED THERE ARE THE 480 STUDENT NAVARRO PRIMARY SCHOOL AND 7.13 ACRES OF THE BOWIE HIGH SCHOOL GROUNDS USED FOR A PLAYGROUND AND VOCATIONAL AGRICULTURAL TRAINING, BOTH OF WHICH WILL REQUIRE RELOCATION. THERE IS NO PROBLEM WITH RESPECT TO THESE FACILITIES AS THEY ARE WITHIN THE AREA TO BE ACQUIRED BY THE UNITED STATES. HOWEVER, ABOUT 75 PERCENT OF SOME 1,712 ELEMENTARY AND HIGH SCHOOL STUDENTS NOW RESIDING IN THE AREA TO BE ACQUIRED ATTEND SCHOOLS OUTSIDE OF THE AREA ALONG ITS FRINGES. AS THE STUDENTS MOVE WITH THEIR FAMILIES TO OTHER SECTIONS OF EL PASO, FACILITIES IN THE SCHOOLS THEY NOW ATTEND WILL BECOME IDLE. YOU STATE THAT SOME PORTION OF THREE OF THESE FRINGE SCHOOLS WILL PROBABLY BECOME AS USELESS AS IF THEY WERE WITHIN THE AREA TO BE ACQUIRED. AND, CORRESPONDINGLY, TO THE EXTENT THAT STUDENTS MOVE TO OTHER SCHOOL AREAS IN THE CITY, THEY WILL PLACE AN INCREASED FINANCIAL BURDEN UPON THE SCHOOL SYSTEM TO PROVIDE THE REQUIRED ADDITIONAL FACILITIES. THE EL PASO AND YSLETA INDEPENDENT SCHOOL DISTRICTS CLAIM COSTS ON A PER- STUDENT BASIS FOR PROVIDING THE ADDITIONAL FACILITIES NECESSITATED BY THE MOVEMENT OF STUDENTS DISPLACED FROM THE PROJECT AREA TO SCHOOLS WHERE THE FACILITIES ARE INADEQUATE TO ACCOMMODATE THE EXPECTED INCREASE IN STUDENT LOADS.

THE QUESTION SPECIFICALLY PRESENTED FOR OUR CONSIDERATION IS:

"DOES THE ENABLING LEGISLATION AUTHORIZE THE REPLACEMENT OF PUBLIC SCHOOL FACILITIES AFFECTED BY A LOSS OF UTILITY DUE TO THE CHAMIZAL SETTLEMENT, EVEN THOUGH LOCATED OUTSIDE THE AREA TO BE ACQUIRED?

SECTION 1B OF THE AMERICAN-MEXICAN CHAMIZAL CONVENTION ACT OF 1964 AUTHORIZES YOU:

"TO ACQUIRE BY DONATION, PURCHASE, OR CONDEMNATION, ALL LANDS REQUIRED---

"/1) FOR TRANSFER TO MEXICO AS PROVIDED IN SAID CONVENTION;

"/2) FOR CONSTRUCTION OF THAT PORTION OF THE NEW RIVER CHANNEL AND THE ADJOINING LEVEE IN THE TERRITORY OF THE UNITED STATES;

"/3) FOR RELOCATION OF HIGHWAYS, ROADWAYS, RAILROADS, TELEGRAPH, TELEPHONE, ELECTRIC TRANSMISSION LINES, BRIDGES, RELATED FACILITIES, AND ANY PUBLICLY OWNED STRUCTURE OR FACILITY, THE RELOCATION OF WHICH, IN THE JUDGMENT OF THE SAID COMMISSIONER, IS NECESSITATED BY THE PROJECT.'

IT IS YOUR VIEW THAT SCHOOL FACILITIES WHICH WILL BE RENDERED IDLE BECAUSE OF THE CONVENTION MAY PROPERLY BE CONSIDERED AS PUBLICLY OWNED FACILITIES THE RELOCATION OF WHICH IS NECESSITATED BY THE PROJECT, REGARDLESS OF WHETHER THEY ARE WITHIN OR WITHOUT THE PROJECT AREA. SUPPORT, YOU QUOTE EXTENSIVELY FROM THE LEGISLATIVE HISTORY TO SHOW THAT SUCH A RESULT WAS INTENDED.

WITHOUT REPEATING IN DETAIL THE STATEMENTS TO WHICH YOU REFER, IT MAY BE FAIRLY STATED THAT THEY REFLECT THE GENERAL INTENTION TO MAKE WHOLE THE OWNERS AND TENANTS WHO WOULD BE DISPOSSESSED FROM THE CHAMIZAL AREA, EVEN TO THE EXTENT OF PROVIDING COMPENSATION OVER AND ABOVE THAT WHICH WOULD ORDINARILY BE REQUIRED TO BE MADE UPON THE GOVERNMENT'S EXERCISE OF ITS EMINENT DOMAIN AUTHORITY. IT WAS PURSUANT TO THIS INTENT THAT THE LIBERAL REIMBURSEMENT AND COMPENSATION PROVISIONS OF SECTION 3 OF THE ACT WERE DRAWN, AUTHORIZING WITHIN CERTAIN LIMITATIONS REIMBURSEMENT TO OWNERS AND TENANTS FOR MOVING THEMSELVES AND THEIR POSSESSIONS, FOR LOSS IN BUSINESS, FOR PENALTY COSTS IN CONNECTION WITH PREPAYMENT OF MORTGAGES AND COMPENSATION FOR PROPERTIES OVER AND ABOVE THEIR MARKET VALUE.

BUT THESE PROVISIONS RELATE SOLELY TO OWNERS AND TENANTS WHOSE PROPERTY IS TAKEN. AND THE PROVISIONS OF SECTION 1B CONCERNING RELOCATIONS LIKEWISE, WHEN VIEWED IN THE CONTEXT OF THE ENTIRE LEGISLATIVE HISTORY WOULD APPEAR TO RELATE TO SITUATIONS WHERE THERE IS A TAKING. THE NECESSITY FOR RELOCATING SCHOOLS AND SPECIFICALLY COVERED A NUMBER OF TIMES THROUGHOUT THE LEGISLATIVE HISTORY AND ALWAYS IN TERMS OF RELOCATING ONLY THE NAVARRO SCHOOL AND THE GROUNDS OF THE BOWIE SCHOOL WHICH WERE IN THE AREA TO BE CEDED TO MEXICO. APPARENTLY NO RESPECT TO THE SCHOOL SITUATIONS BY REASON OF STUDENTS IN THE AREA TO BE TAKEN ATTENDING SCHOOLS OUTSIDE OF THE AREA. SEE FOR EXAMPLE HEARING BEFORE THE COMMITTEE ON FOREIGN RELATIONS, UNITED STATES SENATE, ON S. 2394, JANUARY 21, 1964, AT PAGE 5; HEARINGS BEFORE THE SUBCOMMITTEE ON INTER-AMERICAN AFFAIRS OF THE COMMITTEE ON FOREIGN AFFAIRS; HOUSE OF REPRESENTATIVES, ON S. 2394, FEBRUARY 26 AND 27, 1964, AT PAGES 4 AND 9; SENATE REPORT NO. 868, FEBRUARY 5, 1963; AND HOUSE REPORT NO. 1233, MARCH 11, 1964, AT PAGE 4.

WE RECOGNIZE THAT THE CITY OF EL PASO, BY THE LOSS OF A PART OF ITS TERRITORY, IS AFFECTED OVER AND ABOVE THE IMMEDIATE LOSSES DIRECTLY ASSOCIATED WITH THE TAKING OF THE PROPERTY TO BE CEDED TO MEXICO. STATED IN ANOTHER CONTEXT, BY THE SUPREME COURT OF THE UNITED STATES IN BROWN V. UNITED STATES (1923), 263 U.S. 78:

"* * * A TOWN IS A BUSINESS CENTER. IT IS A UNIT. IF THREE QUARTERS OF IT IS TO BE DESTROYED BY APPROPRIATING IT TO AN EXCLUSIVE USE LIKE A RESERVOIR, ALL PROPERTY OWNERS, BOTH THOSE OUSTED AND THOSE IN THE REMAINING QUARTERS, AS WELL AS BOTH THOSE OUSTED AND THOSE IN THE REMAINING QUARTERS, AS WELL AS THE STATE, WHOSE SUBORDINATE AGENCY OF THE GOVERNMENT IS THE MUNICIPALITY ARE INJURED. * * *" AND WE RECOGNIZE THAT THE UNDERLYING INTENT OF THE LEGISLATION WAS TO SHOW EVERY REASONABLE CONSIDERATION TO THE OCCUPANTS OF THE TERRITORY WHO MUST GIVE UP THEIR HOMES OR BUSINESSES AND FOR THE CITY OF EL PASO WHICH WILL LOSE A SIGNIFICANT PORTION OF ITS ACREAGE. BUT WE FIND NO SUPPORT FOR VIEWING THE AUTHORITY UPON WHICH YOU RELY AS HAVING BEEN INTENDED TO GO BEYOND THOSE SITUATIONS WHERE AN ACTUAL TAKING IS REQUIRED TO CARRY OUT THE PURPOSES OF THE ACT. IN THIS INSTANCE THE ONLY SCHOOL PROPERTIES TO BE TAKEN ARE THOSE OF THE BOWIE AND NAVARRO SCHOOLS; AND THERE WOULD NOT APPEAR TO BE ANY AUTHORITY UNDER THE ACT FOR RELOCATING MORE SCHOOL FACILITIES THAN THESE.

CAREFUL CONSIDERATION OF THE FULL LEGISLATIVE HISTORY LEAVES LITTLE DOUBT BUT THAT THE CONGRESS RECOGNIZED THAT EVEN WITH THE MONETARY COMPENSATION PROVIDED, THERE WOULD BE SERIOUS PROBLEMS OF ADJUSTMENT FOR THE CITY OF EL PASO AND ITS INHABITANTS. IT WAS NOT INTENDED THAT ALL OF THESE ADJUSTMENTS NECESSITATED BY REASON OF THE CONVENTION WOULD BE COMPENSABLE UNDER THE ACT. INDEED, CONGRESSMAN GONZALEZ STATED ON THE FLOOR OF THE HOUSE OF REPRESENTATIVES, CONG. REC., AUGUST 17, 1964 (DAILY) 19251, IN CONNECTION WITH THE APPROPRIATION FOR IMPLEMENTATION OF THE CONVENTION ACT, THAT HE HAD INTRODUCED AN AMENDMENT TO THE HOUSING BILL OF 1964, S. 3049, TO ENABLE THE CITY OF EL PASO TO DO THE PLANNING MADE NECESSARY BY REASON OF THE CONVENTION. THIS PROVISION WAS ULTIMATELY ENACTED AS SECTION 318 OF THE HOUSING ACT OF 1964, PUBLIC LAW 88-560, APPROVED SEPTEMBER 2, 1964, 78 STAT. 769, 793. SECTION 318 PROVIDES, IN PART, THAT:

"* * * THE HOUSING AND HOME FINANCE ADMINISTRATOR IS AUTHORIZED TO MAKE PLANNING GRANTS TO THE CITY OF EL PASO, TEXAS, FOR THE PURPOSE OF ASSISTING IT TO SOLVE THOSE URBAN PLANNING PROBLEMS THAT HAVE RESULTED OR ARE EXPECTED TO RESULT FROM THE CHAMIZAL TREATY OF 1963 * * *.'

IN COMMENTING UPON THIS PROVISION, THE SENATE COMMITTEE ON BANKING AND CURRENCY OBSERVED THAT THE RESULTANT TRANSFER OF LAND BETWEEN THE UNITED STATES AND MEXICO AT EL PASO WILL NECESSITATE THE DISPLACEMENT OF MANY FAMILIES AND THE RELOCATION OF MANY PUBLIC FACILITIES. SENATE REPORT NO. 1265, DATED JULY 21, 1964, AT PAGE 23.

THE CITED SECTION, IN ADDITION TO SHOWING THAT NOT ALL EXPENSES WERE INTENDED TO BE COMPENSABLE UNDER THE CONVENTION ACT, MIGHT BE VIEWED AS FURTHER MANIFESTING THE CONGRESSIONAL DESIRE TO ALLEVIATE THE ADJUSTMENT PROBLEMS EL PASO WILL FACE. HOWEVER, WE DO NOT FEEL WE WOULD BE JUSTIFIED IN CONCLUDING IN LIGHT OF THE EVIDENCE IN THE LEGISLATIVE HISTORY POINTING TO THE INTENTION OF REIMBURSING, COMPENSATING FOR, AND RELOCATING ONLY THOSE PUBLIC AND PRIVATE FACILITIES ACTUALLY TAKEN BY THE GOVERNMENT TO EFFECTUATE THE CONVENTION THAT PAYMENT MAY BE MADE TO THE CITY OF EL PASO FOR EXPENSES RELATED TO THE ADJUSTMENT OF ITS PUBLIC SCHOOL FACILITIES NECESSITATED BY THE RESETTLEMENT OF FAMILIES DISPOSSESSED FROM AREA TO BE TAKEN. IN VIEW OF THE FACT THAT THE EXPENSES UNDER CONSIDERATION CLEARLY WOULD NOT BE COMPENSABLE UNDER ORDINARY EMINENT DOMAIN PROCEDURES, WE WOULD REQUIRE IN SUPPORT OF AN AFFIRMATIVE ANSWER TO THE QUESTION RAISED THAT THE ACT AND ITS LEGISLATIVE HISTORY MORE PRECISELY INDICATE THE INTENTION TO MAKE REIMBURSEMENT FOR SUCH EXPENSES.