 Okay. Hi, everyone, welcome. We're gonna go ahead and get started. We still have some folks shuffling in, but we'll go ahead and get started. My name is Yulia Panfill, and I'm the director of the Future of Property Rights program at New America. We'd like to thank the Pulitzer Center on Crisis Reporting for being our partner in this great event. FPR looks at land and property rights issues around the world, but today we're here to look at property rights challenges here in the US. Insecure property rights isn't an issue that we typically think about here in the US. There's a belief that all property is titled, that people's possessions are secure from taking, that what's yours is yours, but that's not necessarily so. From Trump's wall in Texas, to the fight over national monuments in Utah, to post-hurricane reconstruction in Puerto Rico and civil asset forfeiture along our nation's highways, the property rights of millions of Americans are being challenged. We're here to discuss this issue, and we've assembled a really great series of fireside chats between journalists who are covering this issue on the ground and protagonists who are working on this topic. So for our first fireside chat, I'm really thrilled to present, the discussion topic is the fight over public lands in particular Bears Ears National Monument in Utah. And here to present are Avi Garbaugh, who is the environmental advocate for Patagonia. This was a specially created position, the first of its kind. And previously, Avi was the longest serving general counsel of the US EPA. Patagonia has been at the forefront of fighting to protect public lands, jumping into the fray with environmental activists and indigenous groups. And with him is Tommy Burr, the Washington bureau chief of the Salt Lake Tribune, who has covered this issue extensively. He's also the past president of the National Press Club. So we're gonna show a very short 60-second clip kind of priming this issue, and then they will take it away. We'll have about 20 minutes of discussion followed by a few minutes of audience Q&A. I could be a pretty cynical guy. The one thing that really keeps me going are these wild places that are the real soul of this country. A great part of my life, I've been climbing and fishing and hunting on public lands. I've been a successful businessman because of the lessons I learned in the outdoors. My business was built on having wild places. Public lands have never been more threatened than right now, because you have a few self-serving politicians who want to sell them off and make money. Behind the politicians are the energy companies and the big corporations that want to use up those natural resources. It's just greed. This belongs to us. This belongs to all of the people in America. It's our heritage. I hope my kids and grandkids will have the same experiences that I have. It's got to be, thanks for joining me. Let's start with the basics here, because I'm not sure how much our audience and the audience on TV knows about public lands. So what are public lands? I think we're specifically talking about federal public lands. And why are most of them in the West? So first let me say thanks to you for joining me up here and then to New America for putting this on. I think what may not have been entirely clear is that the video was of Patagonia's founder, Yvonne Schwannard, and certainly the remarks that he made, I think I really felt top to bottom at Patagonia, so I'm thrilled to join there. Public lands are really just that. They're lands that belong to us. They belong to the public. I think more importantly, certainly the way I think about them is they also are held in trust by us for our children and for generations to come. So there's a special dimension, if you will, of ownership that I think animates a lot of the discussion and really calls for a kind of protection and preservation that we all need to involve ourselves in. I know we're gonna talk about federal public lands. I did wanna kinda stay at the outset that there are public lands that are owned by the state, that are owned by localities, I think city parks. In this area, it's not just the Grand Canyon or Acadia National Park in the East Coast, it's Rock Creek Park for those that enjoy that space. It's so much of the shoreline of the Potomac River. There's a reason it looks the way it does and that's because it is a public land, something that's owned by us. We've got about 600 plus million acres of public land, federal public lands in this country, nearly a third of our territory here, often managed for multiple uses by a lot of different federal agencies, Bureau of Land Management, National Park Service, National Forest Service, Fish and Wildlife Service, among them, so certainly a lot of activity, both engagement between, I think, public and stakeholders and various agencies of the federal government. But Tommy, your question about kind of why are they mostly in the West? I mean, it's interesting, I think, to think about how public lands came to be in this country and, of course, you have to go back to the founding of the U.S. and you go back even to 1781 when you think about the original colonies, some of them at least claimed either Title II or held claims to territory west of their colonial boundaries. And so in 1781, in a sense, we had the first public lands when the state of New York, the colony of New York, essentially turned over all of its claims to the emerging federal government. 20 years later, you really had all of the original colonies do the same. And so everything westward was essentially owned at that time by the federal government. It's worth, of course, pointing out that the way in which we got most of this land was through Caesar or in other means from the Native Americans who were here to begin with. And so I want to make sure that we understood him when we talked about public lands really where those ultimately came from. But then we got it through lots of land purchases. And when you start kind of moving west in our history, a lot of the new states, in terms of their costs of admission into the union, were to make sure that they did not lay claim to what were then federal lands. So I think that's kind of the reason when you look to the west why there are a lot more federal public lands out there. If for example, in Utah, I think it's 60, something percent of the land mass in Utah is federally owned be it Forest Service or BLM or parks in Nevada. I think it's like 80%. It's dramatic there. And that's getting into the controversial part here. And it's very interesting to ask this question. There's every poll you see. Americans love public lands. They love their parks. They love public open spaces. But yet it's controversial in the West. Why is it controversial when everyone seems to love them? Well, let me challenge the premise a little bit up front. I mean, there's a difference of course between the degree of controversy and the degree of threat. So I don't want to suggest in any way that public lands are not under threat from politicians, from special or other economic issue interests. But when you think about the controversial nature of public lands or the things that we're here to talk about, you're absolutely right. The vast majority of the public polling east and west supports the various protective uses for our national lands. I mean, you just need to look at the numbers of people that are going. I saw some statistics. The last four years, over 300 million visits to our national parks. First time ever, I just, as I was coming over here, I saw an announcement last year, Alaska had the greatest number ever of visitors to its national parks. So to put this in context, there are only 330 million Americans. No, 300 million visits. And by the way, also to put it in context, for those of us that are paying attention to March Madness, more than the NFL, NBA, MLB, NASCAR, and visits to Disney amusement parks combined. So I've read. But that gives you a sense, again, of the way in which national parks have seeped into the American psyche and consciousness for good reason. I mean, it genuinely is part of our legacy. And when you look at polls, again, not just done of the two seabords of the coast, but in the Western states, Colorado College does an annual poll where they, again, poll attitudes of voters and others in the Western states. And they have repeatedly found that it's not a red-blue issue. It's not so partisan when you get out there. There are large majorities of people, again, who favor for very good reasons increased and continued protections of our public lands. So why is there a difference between a rural Utah or a rural Colorado and rural Nevada? And maybe what somebody here in Washington, D.C. or New York or a coastal state believes about public lands. Well, look, I've lived and worked in this town long enough to have a degree of cynicism. So I'm very comfortable separating why somebody in Washington feels a particular way. I do think when you look at public lands in particular, that the energy sector, the fossil fuel extraction industry has a bit of a stranglehold on a lot of folks. A great deal of our public lands are either under lease or available for lease by the energy and extractive industries. And so I think that's why I started out. I think there's a different threat, and if you will, a different degree of controversy when you talk to our politicians here than when you go out there. But the other key point to make, and again, we always have to speak in the moment, but we need a little bit of historical context. And if you go back in time, things like the Grand Canyon, which we all take for granted, it's I think the second most visited national park. Interestingly, the first, of course, is here in the east, the Great Smoky Mountain National Park, but the Grand Canyon, when they first started floating the ideas of making it a national park, somebody in the local Northern Arizona newspaper editorialized, and I thought this was great. They talked about, it was a fiendish and diabolical scheme, and anybody who would possibly come up with this idea either had been suckled by a sow and raised by an idiot. And here we are, right? 100 years later, we take it for granted. It's the same thing in the Grand Tetons, where they talked about, this is the end of prosperity for the town of Jackson. It's now the most wealthy county in the state, and you can kind of go on and on. And even, by the way, in the localities today, where they are experiencing the economic benefits, the visitation, the ability to absorb and experience the benefits and the inspiration of these places, the local folks are not all in opposition. The Chamber of Commerce, for example, in the area around the Grand Staircase Escalane is in favor of what was done, that monument designation, and came out in opposition. Can I ask, just to interrupt you two seconds, is that because the economy shifted from oil and gas or to more hiking outdoorsy kind of stuff? Well, I don't know that there has necessarily been a shift. It is clear, by the way, that the outdoor recreation industry and the way it impacts localities is enormous. I've seen figures of 880 plus billion dollars annually and seven million jobs, dwarfs, by the way, the numbers, and certainly that you'll see the economics around the oil and gas industry. I don't know that that means there's been a diminishment of the oil and gas, but certainly I think there's a recognition that there's a quality of life, there are economic opportunities, there are recreational opportunities that come with these sorts of national monuments and public lands. You mentioned the Grand Staircase, so let's get into that. I want to talk about Bearers' Ears as well, but can you give us a little bit of a history of what President Clinton did with Grand Staircase and why it was controversial at the time, and then where Bearers' Ears came from and what President Obama did there and what President Trump did to shrink those? Yeah, so I mean, for both of those, because of course we're talking about national monuments and different sorts of public lands come into play or into existence in different ways, some like national parks established by Congress, but others like national monuments can be so designated by the president. It's a law that's been around for 100 plus years, the Antiquities Act, and it really allows and gives authority to the presidents to designate national monuments when there is certainly historical or cultural or archeological significance to particular places and to reserve parcels of land around them. So back in 1996 was when President Clinton did the designation for the Grand Staircase Escalante, and that was about 1.7, 1.8 million acres. I think at the time, one of the things that you said was, why was it, why could it have been controversial at the time, partly because I think there was some coal mining interests that were there and President Clinton I think wisely said at the time that the designation was going on that we don't need a mine everywhere and we certainly don't need one where it's gonna harm our national treasures. And just again, fast forward when we talked about what's going on in the present administration and its desire to shrink, I think you have already seen many of the local citizens in that area who have experienced the economic and other benefits associated with it. So I don't know that you have actually seen local support for it. But the other national monument that you raised bears ears. So that was certainly in my prior service in the Obama administration. I should say a lot of these things are a very stakeholder intensive process. The notion that this is done inside the Beltway by kind of DC bureaucrats without consultation simply belies what happens. Certainly belied what happened there. Extensive if not historic interactions with the local Native American communities and intertribal coalition had been working on that for years. Generations of tribes, right? No, I know President Obama remarked at the time that this was not new as he said for 80 years tribes have been suggesting that we protect it and designate it, secretaries of interior, members of Congress, other locals, et cetera. And so in 2016, President Obama also did a designation under the Antiquities Act for the Bears Ears National Monument. Celebrated by many certainly the culmination I think of a great deal of work from the Native American coalition and others there, the recreational interests which Patagonia was working with some grassroots organizations were certainly present. But it didn't take long as we know for the new administration to come along and seek to put a stop to that. So one of the very first executive orders issued by President Trump when he came into power was an order asking then Secretary Zinke at DOI to take a look at national monuments. Now take a look at specific ones that is to say those designated after 1996, you may recall that Grand Staircase Escalani was 1996 and those that impacted or had more than 100,000 acres. So it was a relatively small group. There was a process. Some of us would say perhaps not ultimately a fair process that is to say the secretary took comments, got millions of them overwhelmingly in support of retaining what was there and not surprisingly I think to some of us the president ended up shrinking them, shrinking Bears Ears by upwards of 85%. So Patagonia, when I think of Patagonia, I think of a place where I want a really nice fleece. I go there, tell me why you're involved and also you were partied to the lawsuit over Bears Ears. I don't know if you're partied the lawsuit over Grand Staircase as well, but over Bears Ears. So why is Patagonia getting involved in this and then we'll talk about the lawsuit afterwards. So there were lawsuits immediately that challenged the presidents we think unlawful shrinking if you will of those two national monuments. About the same day I believe. Well, actually they were filed one after the other. I think the very first lawsuit was filed by the Intertribal Coalition of the Native Americans, Patagonia and several other groups I think filed a day or two later and then there was a third group, they're all consolidated now. But you ask why was Patagonia involved? And you can harken back to the video we saw where you see the founder of the company, Yvonne Schwinnard and his sensibility and kind of where he comes from with public lands. We have a mission statement and many organizations and companies do. Our mission statement is we are in business to save the home planet. And you really don't have to step too far away from that to understand why we're involved. Sure we've got employees who recreate and enjoy the area. Sure we've got customers and athletes and others who enjoy our products and go rock climbing there. But more importantly, if the question is should we protect these public lands for generations to come? Is it the right thing to do under the law and for our children and their grandchildren? The answer is yes. And that really is why Patagonia became involved. The other thing to mention, Tom, is we have been involved for some time. In the lead up to the designation, we've been working with grassroots activists, Utah, Dine, Bikaas and that Native American group there, Friends of Cedar Mesa. So we have been involved kind of at the grassroots level for many years. So I know we're almost out of time and we'll go to audience questions but I wanted to ask you about the impact of the lack of coverage of public lands issues. Right now there's a lot of noise. There's some Mueller report out there I read about today. But public lands are very important, not only right now but for the future, right? Whatever shape they may be. Is it a concern you that the newspaper coverage, the TV coverage of that is so less now than it was before? It absolutely concerns me. I mean to the extent that issues about public lands are impacted by what goes on in the federal government and they are, I've always talked about we need a watchful citizenry. We need an engaged citizenry. Communities that basically have interest from coast to coast need to speak up and need to be vigilant. They need to make their voices heard. And those of us again, we chatted about this earlier, that live and work in this area, you get used to seeing in the Washington Post reports about what's going on with the Department of Interior or any number of federal agencies. But people in your home area in Salt Lake City hopefully are reading the local paper who you work with and that really goes throughout the country. So the extent to which we don't have reporters that are covering these issues certainly given what's going on in Washington and telling the local communities how to get involved, what the threats are and kind of what's coming up next, that's of great concern to me. We're in an era of rollbacks. And I issue the term regulatory rollback because regulations seem to have this negative connotation for people. What they mean to me are protections. And so when I think in particular about public lands we are getting the beginnings of rollbacks of protections, rollbacks of things that ought to concern every one of us and our children. So I do get concerned when I think about the degree to which we focus on a lot of things that are fleeting in this town and not things that are really of generational impact like public lands. Thank you. I think we can turn to audience questions now. There is a microphone and I think we'd prefer you wait for it because we are doing a broadcast here in streaming. So please wait for the microphone. If you'd like to raise your hand I'll call on you and please, I always say this, ask a question, don't give a statement. I prefer a Twitter-sized question. It would make it be better. Anybody have questions from the audience? Right here in the front row. Thank you. So my name is Isabel Bonnyman and I'm with New America. And I was just wondering, I mean I think it's incredible that the Patagonia is brought on as the first ever environmental advocate and working in the nonprofit space in DC. I think a lot of what we see is companies who make sizable donations to nonprofits let's say something like National Resource Defense Council or something like that to help move the needle forward on certain policy advocacy work as well as lobbying, et cetera. Can you speak to, how did Patagonia decide to bring someone like you in-house instead of sort of hiring or contracting that out? I mean it's a unique place for a company and I think we're all fascinated. Yeah, well it's a unique company and certainly it's a unique position. Let me just further differentiate Patagonia. I think we made the decision long ago that where we wanted to put our efforts and our funds and Patagonia's kind of gives away 1% for the planet it was to grassroots organizations. So there are a lot of large organizations, Sierra Club, NRDC that you referred to that do tremendous work, a great amount of good for us. Patagonia has a history actually of working with much smaller, much local grassroots organizations. I think nearly 1,000 is the number that it funds and that's kind of the way it has decided to advocate if you will. I think kind of bringing me along in this particular position, it's new but it's in many senses a continuation of the commitment that the company has. It's adding I think a different kind of expertise and experience that will really compliment a lot of what's going on. I also think that there was honestly a greater sense of urgency now given what's going on in the current administration and where we find ourselves in many respects. So my hope again is that although I'm the environmental advocate for Patagonia today my fervent hope is that years from now you'll see lots of environmental advocates for companies because after all it's people's employees, it's the families, it's their communities, it's their customers. These are who we all as I think kind of companies ought to be advocating for. Can I follow up on that? That sounds like you're saying corporate responsibility. There needs to be more corporate responsibility not just outdoors, themes, organizations but everywhere, is that what you were trying to say? Absolutely and again I come from inside government and when you work in DC, particularly if you've spent time in government, it's easy to build up the notion that government can do it. We can kind of be the leading edge and make the change. I will honestly kind of confess that the last two years has awoken me in ways that I've not been awoken before in the need for the public sector but more importantly the private sector to fill the void, to stand up and be leaders. We can no longer count on institutions of government to kind of drive change in every respect. We need to get back to the point where science matters, rule of law matters, et cetera but in the meantime and even when that happens, yes, private sector companies and individuals need to stand up and actually make the change and that I think is what gives me the greatest hope is to have seen who has stepped into the void, who has actually stepped up in leadership positions these last couple years. Another audience question? Let me ask you quickly. I'm from a small town in Utah, it's a coal town. So how do you convince people from my hometown that these public lands are very important when they're worried about that's the loss of jobs, that's the loss of their economy? They view this a little differently than my neighbors here in Washington. Well, first of all, and although I don't think this is the leading reason why we have public lands are needed to protect them, the economic arguments for them are incredibly strong and they've got the greatest relevance for the local communities. So there's, I think we've got a study after study that will draw the linkage between the improved prosperity of communities where national monuments and public lands lie versus others. And in fact, if you just look in the West, for example, you don't even need to look in the Eastern States, those towns and those kind of rural pockets where federal lands exist tend to do better economically than places in the rural West that don't have them. So I think you need to make the economic argument. But the other thing too, and again, this extends a little bit kind of beyond the borders of Utah, for example, I think we need to do a better job about teaching, teaching the value of public lands, teaching about how they came about, connecting everybody, whether you're in an urban community in the East or the West or a rural community in Southern Virginia or rural Utah about our common bonds here. And I have always thought that the lines, if you will, that kind of paint this as a big controversy are exaggerated. And when you look at, for example, the way in which the last two large government shutdowns ended, it really was when you started to publicize and see the pictures of the national parks and the public lands getting shut. And if anything kind of brought people together and said, look, we need to carry on as one country, I think it was those images because that's our shared heritages. Those in many ways are the legacy and the things that bond us together. Another question here in the middle. Please identify yourself. Yeah, my name is Todd Miller from Cromaway. I have a question. Has the politics of public land protection changed, or is this really a continuation of the fight that's been going on for the last 100 or 200 years about the place of public lands in the US? Has something changed around the politics of it? Because I guess the question is, how can we find some agreement? Republicans, everyone points to Teddy Roosevelt and the initiative of this. Has something, are we in a period of some significant change here about this? Well, look, I think politics have changed in general. And so I don't know that it's been politics around environmental or conservation issues that has brought other issues to fore. I think we're in a more bitterly divided political environment now that certainly I can remember in quite some time. And I think some of these issues around public lands are caught up in it. Again, I think there's a little bit of exaggeration there. And we are less than one month removed from the John Dingle Conservation and Management Act. The latest, if not greatest, in quite some time conservation, Bill signed into law by President Trump that funded the land and water conservation fund. It added over 2 million acres to public land. And 92 to 8, by the way, in the US Senate. So there are ways in which we can kind of break through. But I think there's going to be a bit of a taint to a lot of what we're doing now. But I think I'm optimistic. And we can get through this. You look back in our history in the late 1960s, the Vietnam War raging, the civil rights movement going on, all of the protest and unrest political and otherwise social in this country. And that's where we passed the bedrock of our environmental and conservation laws. Was in that span from 64 to 70. We can walk and chew gum at the same time. There are ways to get this done for this country. And again, I think we need to beat back a little bit of the partisanship around this. We need to be vigilant. We need to be engaged. But we need to understand that there is tremendous value. And if anything, in my judgment, can bring us together, it's the value of public lands. I think with that, we're pretty much out of time. I want to thank the audience for your participation. I hope you stick around for the other panelists. That was very illuminating. And I appreciate your time being here. Thank you, Tommy. Appreciate it. Thank you. Our second fireside chat will be discussing the property rights implications of President Trump's proposed border wall, which could displace thousands of families, businesses, and others living and working along the border. Here with us, I'm actually Mary McCord, who is a senior litigator with Georgetown Laws Institute for Constitutional Advocacy and Protection, and formerly, Acting Assistant Attorney General for National Security at the US Department of Justice. Mary is litigating a case on behalf of a church that sits on the border and that's being threatened by the wall. And I have a confession. Mary actually spoke at a prior event, specifically on the wall here, and was so great that we invited her back. And I decided to take host's prerogative to conduct the fireside chat with her so that I can ask her questions that I want to know. So we'll play a short video and launch into the chat. Bells before dawn, praying before the light in Lalomita Chapel, built in 1899. The government wants to seize this frontier land for its wall. What does it mean to be a priest at a small historic chapel along the Rio Grande River? It's sweet. It is sweet. Does it feel like a frontier? Well, it keeps us in touch with the frontier, I guess. This tiny chapel is at the heart of the Trump administration's bid to potentially seize land, securing the border in this section of Texas. Now, when you look at that map on paper, it makes sense. Put the wall along the levee, right? The problem is, once that wall is in, everything south of the wall to the river, including Lalomita Chapel, becomes isolated. You must interact with migrants. You must see migrants come through here. Sure, sure. The church, the father, the community in the middle of a national debate. Great. Mary, welcome. Thank you. So because we have some international folks in the audience and also several tuning in via the live stream, who may not be as familiar with the issue, could you just do a quick framing on the wall? So why is it being built? How much has been built already in past administrations? And how much more is Trump trying to build? Sure. So the wall is not a brand new thing that came with this administration. For 10 years or more, there's been congressional funding for border security, including pedestrian fencing and vehicle fencing along the border. And it's been funded for, like I said, the last couple of administrations. And I think approximately 700 miles of different types of fencing has been built. And when I say pedestrian fencing, that means the type of a wall that couldn't be just climbed over by a person who wanted to climb over it versus vehicular fencing, which is something that's shorter than that that would prevent trucks and vehicles from coming through, but which a pedestrian could climb over. Most of the previous wall has been built along the border states, California, New Mexico, and Arizona along a lot of land, not all, but a lot of that land was publicly owned land. So it didn't involve the government taking anyone's land to build the wall. In Texas, which still mostly does not have wall, there is a natural border, the Rio Grande River. So of course, the need for further border is less dire because anyone coming across has got to get across this natural border of the river. But there's a lot of that land. I think something like maybe the tune of 90%, at least, down in the Rio Grande Valley, that is privately owned. So that means the government can't just build a wall there without taking acquisition of the property, either by negotiating and purchasing it from the private landowners or from using the power of eminent domain. Now even in Texas, and particularly here, where you were just seeing in the video, this is really the southernmost part of Texas, the Rio Grande Valley, really coming right up almost to where it meets the Gulf. And that area has already had appropriated in last year's funding about 33 miles of border wall. And in the most recent spending bill that was just recently passed, ending the government shutdown, another 55 miles of pedestrian fencing was funded. What the government has done, which was also alluded to there, is the actual natural border is a river. So you can't readily build a wall in the middle of the river. So the government's plans primarily have been to build the wall along a series of existing levees that have been there for some time that were originally built as flood protection for these low-lying areas. So this levee system runs inland from the border anywhere up to a full mile inland, meaning there's private land between, as the video showed, between the levee and the actual river, the actual border. And so what's happening now, what's happening with those first 33 miles that were already funded in this next 55 miles of pedestrian fencing is that when the wall is built, it will cut off residences, businesses, a church like this and other things on the south side. The plan there is for the wall to be concrete set into the levee, on the south side of the levee, concrete up to the surface of the levee, and then extending above the concrete, 18 feet of steel ballards placed close together so that that really can't be climbed over. And then directly south of this wall would be a 150-foot enforcement zone containing sort of a road for border patrol to go up and down, surveillance, lighting, et cetera, cleared of vegetation and trees and so on. So as you alluded to, Mary, this wall's not being built in a vacuum. There are people living along the border. There are churches, businesses, wildlife preserves. Can you give us a picture of who owns and uses this land along the border and who's likely to be impacted? Sure, so we have a whole variety. We've got ranchers that are in large ranches where they might have cattle grazing, farms who actually is very fertile farmland close to the gulf, as you might imagine. And so farmers who have sometimes their home on the south side of the levee, some on the north side, but farm that property. You also have, I was down in McAllen, I guess, last month for this case and passed by an area that is a community for what they call winter Texans, the people who migrate south for the winter to enjoy the warm climate there. And they have, it's a mobile home community, but these are people that live there at least six months out of the year that's all on the south side of the levee. I passed by several restaurants that take advantage like in most cities that have a river that take advantage of the river for outdoor dining opportunities and just the neat kind of environment of being able to have their restaurant along a beautiful river. There are camps like areas for kids to come to summer camp and things like that. And then of course there's La La Mita. So it's everything from commercial property, oh and I left out a few important, there is also the National Butterfly Center which is a protected area for butterflies. It's an area of a lot of migration of butterflies and so they grow a lot of the kinds of plants that butterflies like apparently. And there are state parkland and other park spaces there as well. And can you give us a bit of a framing on eminent domain so the power under which this land can be taken? Sure, so eminence domain has been part of our constitution since its beginning, but there's always been concern and the founders had concerns about the government taking property by eminent domain and essentially it is the power of the government to take private property for a public purpose. But it requires authority under a statute. Even though the concept is embedded in the constitution but it's not just that any federal department or agency at any point can say, I want that property, I'm taking it. The department or agency has to have authority given them by Congress for specific purposes to take property. And along the border, that authority has been used to take private property when the private landowners are not interested in selling their property or don't feel like they're getting a fair price for it. And there are a couple of ways that property can be taken by eminent domain. Traditional eminent domain is the government says to the property owner that this is the portion of your property that is needed for this public purpose and they file a case related to that in court but the conveyance of the property, the title of the property doesn't actually convey to the government until you've agreed upon a fair market value price for the property. So this can get hung up in courts for months or years if there's disagreement over the fair market value and if that has to be litigated in courts. Meanwhile, under traditional concepts of eminent domain, the property remains in the hands of the property owners. Well partly because of the way this can get tied up in courts, Congress some years ago amended the eminent domain statutes to allow for something called a quick take which is exactly what it sounds like. The government can file what's called a declaration of taking in court and in doing that post a bond with the court in the amount of money that in the government's determination would be fair market value for that property and upon filing that declaration of taking and posting that bond, the title to the property conveys immediately to the government. So the government can then begin using it for whatever it's gonna use it for including the building of a wall and the government may still be in litigation with the private property owner for months or years over the fair market value that the government has to pay but meanwhile the property owner has already lost the use of that property. That has been the process that the government has been using at least since 2008 to acquire property for the building of the wall in South Texas and what the government will usually do is it will sort of send out a letter in advance of filing a court case to the property owners saying your property, this portion of your property is needed for the building of the wall for our border security and so we'd like to offer you and they will X amount of dollars for your property and if you don't agree to the sale, we will go to court and we will file a declaration of taking and sometimes this comes in two steps and it certainly did with respect to Lalamita. First they say we wanna do just a temporary taking of your property just to come on and do surveying, do soil samples to make sure we can assess the suitability of the place where we wanna build the wall and then we'll second come along later and actually take the property permanently, at least that portion of it for the building of the wall in order to build the wall and if homeowners and one problem with this for property owners is that if you don't have the money or the means or the time or just wherewithal to sort of hire an attorney to represent you, you may get taken advantage of by whatever the government offers you and the Texas Tribune and ProPublica did a really terrific piece of reporting on this and I think they published at the end of 2017 in a piece called The Taking where they recounted the stories of a lot of the private landowners and those who had just agreed to what the government gave them were getting in for I think in one example for 22 acres got a couple of $100,000 right down the road neighboring actually neighboring property where they hired lawyers to represent them for 11 acres so half the acreage got $1.4 million. But of course it takes money and wherewithal and connections to find the right lawyer hire the right lawyer to represent you in court for this so it results in some real serious inequities in terms of what people are being compensated for on the border. Mary, how did you come to be involved with this issue? So it's kind of a funny story. I'm not an eminent domain expert at all but I was very concerned about what was going on in the border and oddly enough my organization has been involved in litigating under state anti-paramilitary activity statutes. In other words, after the Unite the Right rally in Charlottesville, Virginia we brought a lawsuit against a lot of the white supremacist groups and private militias that had marched there under state anti-paramilitary activity statutes and you're saying what on earth does that have to do with the border. So we first got interested in the border because in November the Minutemen organization put out a call for private militias to go to the border to help supplement the Customs and Border Patrol there and also the U.S. military that President Trump had at the time sent to the border to help with border security. And this private militia, the Minutemen that has chapters all around the country was saying grab your arms, get down there and help them and my organization thought, well in fact I wrote an op-ed saying Southern governors you don't have to allow this. Each one of you, your states has a constitution that prohibits private militias and so you should tell them right now, thanks but no thanks, we don't need your help and in fact it would be illegal. In the course of doing that, this is my very long-winded way to get to the point here, I reached out to some folks doing advocacy work along the border to say are you seeing these private militias there? Because if you are maybe some of these homeowners or property owners would wanna bring a lawsuit and try to force them to go away. And he said, well we're not really seeing the private militias but we have this much bigger issue down here that the wall where it's proposed to be built is really gonna leave a lot of people without their property and it's gonna leave La Lomita Chapel, this historic over 100 year old chapel on the south side of the border wall and the attorneys I work with and I thought, well that's really awful and we looked into it and we contacted Father Roy who you saw in the video and the bishop there and talked to them and they had an attorney at the time who had represented the diocese for lots of things who was trying to figure out how he could fight this and we said well under the Religious Freedom Restoration Act the government cannot take any action that substantially burdens the exercise of religion and the building of a wall that would actually physically cut off this chapel on the south side of the wall where people who want to worship there, pray there, people who go for services there, people go for quiet contemplation, the annual Palm Sunday procession that they have every year from the nearby city of Mission and the larger church, our Lady of Guadalupe, the four mile procession to Palm Sunday, all these things would be impacted by the building of this enormous wall right by the chapel even if there were a gate and the government at that time had not even promised to build a gate but even if there were a gate in the wall is our CBP gonna be sitting there asking for people's papers as they come and go to the chapel, what kind of impact is this gonna have on the Catholic diocese use of this chapel? And just historically it's really a fascinating story because this was the very south back in the 1800s where missionaries on horseback went to preach there and provide an ability for the people living there on the border to be baptized or get married or say confession or things like that and so eventually in the 1800s they built this little chapel and a little dormitory for these horseback riding missionaries and then many years later in the last century they built a bigger church in Mission Texas but they've always maintained this one room chapel. So we volunteered to get involved and represent the church and filed a brief in court. So it's interesting you're describing that as a place of worship La Lomita actually has a unique remedy available to it that isn't usually available to property owners along the border. Can you tell us a little bit more about that and also tell us where the case currently stands? Sure, so that's right. Unfortunately most property owners don't have something like the Religious Freedom Restoration Act or First Amendment that gives them this ability to say government you can't do this. And in fact other arguments that property owners might make about the government's compliance with other laws they don't even have the ability to do that and that is because by statute Congress gave the Secretary of the Department of Homeland Security the authority in her sole discretion to waive the applicability of any statute any federal statute that she determines is necessary to waive in order to expeditiously build the wall. And this is not just the Secretary of DHS previous secretaries have done this too. They've waived almost everything you could imagine Endangered Species Act, Historic Preservation Acts, Migratory Birds Act, Indian Burial Statutes and all kinds of Clean Water Act, Clean Air Act, the Administrative Procedure Act which is the normal statute that allows a person agreed by government action to bring a law student court. All of these were waived by the Secretary which means most owners really have nothing they can sue about except the money they're going to be compensated. What she didn't waive was the Religious Freedom Restoration Act probably because it does emanate sort of directly from the First Amendment even though it was really Congress's effort to reinvigorate the First Amendment after the Supreme Court made a ruling that took away some of made things more difficult for certain First Amendment claims but at any rate she didn't waive that so the church had available to it a statute to provide as a defense to this wall building that most other homeowners don't have. But the plight of La Lomita as well as the National Butterfly Center and the Santa Ana State Park and a few other properties thanks frankly to media attention, public attention down along the border. Father Roy talking to anyone and everyone who would talk to him. The parishioners there being very vocal. This all came to the tension of Congress and when Congress passed the spending bill I referenced earlier as a means to end the government shutdown several representatives along the border were successfully inserting into that bill an exemption that prohibited use of appropriated monies to build pedestrian fencing at La Lomita at the Butterfly Center at Santa Ana. So after that the government in our court case withdrew its request to come on to take the property for purposes of doing the initial surveying as a predicate to later building the wall and at least for now has withdrawn its attempt to go on the property. The government did however say that we pointed out to me in a phone call and then said in open court which is why I can share it here that you know if the wall gets built on both adjacent properties coming up to the edge of the La Lomita property starting on this side and I mentioned that enforcement zone with a road running across he says we're gonna wanna connect that road so that even if we don't have a wall at La Lomita I think that I'm not asking you for this now but I think the government's probably gonna wanna connect that road and so right now the way it stands is the government has said they would of course provide notice to the diocese if they intend to do that and then we would have another opportunity of course to litigate that in court because unfortunately the exemption in the spending bill was solely for pedestrian fencing. It didn't say anything about building a road, it didn't say anything about prohibiting other border security. Great, thank you Mary. I think we have time for a few questions and Tim in the back has a mic. No questions. Hi, my name is Jack Kropansky, I'm unaffiliated. So on that last point, if they build the wall on up to a point and then up to another point does it want that actually prohibit essentially physically prohibit access to parishioners? In other words, they would have to like crawl through the crawl across the levy in the ditch and whatever which wouldn't be reasonable access. I would think that a court would say that that's not access. So right now you actually access the La Lomita grounds from the levy because it is on the south side of the levy and the levy has a road along the top of it and then there are just like ramps down to access all of these properties I've mentioned. So like a ramp down to that park land around the park that you saw, there's a ramp down to the housing development I mentioned, a ramp down. So presumably that ramp down would stay there and provide that means of access. The right now the access point is I think within the area that's prohibited but we haven't seen their plans yet. So, yeah. And one note I would make and I know there's a couple of questions is there's one for, you know, I was mentioning earlier property owners that have their farms, sometimes their cattle's or ranches and et cetera on the south side. What the government has done in the portions of the wall that it's already built is it's put in gates with a computerized code so that the property owner can access its property but there's actually one really tragic story of one property owner whose home was on the south side and had a fire and although they were able to escape not all of their pets and animals were able to get out of harm's way and I don't know whether the fire department agrees with this or not but at least the property owners view was that this whole gate situation seriously slowed down access of public safety officials and I know I've seen an interview with the sheriff of McCallan who says one of his concerns is that, you know, getting through a computerized coded gate when you're trying to respond to emergency is not very effective. Is this on? Okay, Audra Thomas. I was just wondering, so a lot of the land is privately owned but how much of the land is owned by local or state governments and what is there any pushback from those types of entities as far as like seizing the property for the wall and imminent domain and so forth? So I think a lot is private literally in the hands of individuals and families but there is state lands such as the Santa Ana State Park and there has been pushed back to building a wall at least by certain stakeholders building a wall there and that's one reason that that park was exempted from that. Now, I don't know where the governor of Texas stands on this but at least localities who have responsibility for some of this park land have certainly been opposed the wall being built there and at least by most of the reporting I've seen in my own visits there and talking to people like Father Roy, now granted maybe the people I'm talking to are the ones of a certain mindset but most of the reporting I've seen has suggested that the people living in this border area who have been used to their whole lives a very porous border, many of them have families on both sides of the border, they come and go to, they go across to go to restaurants in the Mexico side and others have come north that most of them just don't see any need for a wall in this particular area. Yeah, my name is Todd Miller. Is there a larger principle at stake here though? Because personally I don't agree with the wall. A lot of Americans don't. But do we wanna restrict the government from providing say public good? Again, not everyone agrees with this good but I guess what's the larger principle at stake here? So I think that a lot of ways to answer that because I come from a background in national security. I believe in border security. I think the issue here is you have a lot of different interests, right? You have private property interests you're talking about taking people's property. You have border security interests and then you have other interests we've already talked about like religious freedom and then environmental concerns, you know all kinds of interests. How do you accommodate all those? And usually in law when it comes to government action there is sort of a compelling government need and is this the least restrictive means of accomplishing that need? And that's what I think hasn't been established here. There's no question that border crossings are up currently but they're not up from drug at least in this area of Hidalgo County, Rio Grande Valley. By the data I've seen most recently they're not up from drug smugglers or people being violent. What the numbers are up for is families that are actually seeking asylum. That's where the increase in numbers recently has been. Otherwise the numbers are actually down. There's been no showing that this particular area of Hidalgo is a place where drugs are coming in across the river or where people are being smuggled in or where terrorists are coming in. So part of that I think the public debate appropriately right now is what is necessary for border security? Is this wall what's necessary? Or are there other means of securing the border that wouldn't involve taking people's property, potentially harming not only religious freedom but other interests such as those that are protected by the various statutes that have been waived. Great, thank you. Let's give Mary a round of applause. Thank you. Thank you. We welcome our next speakers. I'm doing some double duty here. While our new speakers are coming out why don't I introduce the topic? Great, hi. Please welcome. Yep, Sam you can sit right there. So the next topic we'll be discussing is a topic that I think is quite unique actually to the United States and it's the topic of civil asset forfeiture which is a controversial US practice that allows police and other government officials to seize the property of people who are suspected of a crime even if those people are never found guilty of that crime or even charged. So to speak with us about this, we're really honored to have Sam Gage who is an attorney for the Institute of Justice and who just last month won a case in front of the Supreme Court of the United States on this very issue. In that case the justices unanimously ruled that the state of Indiana's seizure of a man's Range Rover was illegal. And with him we have Bill Freevogal who is a professor of journalism at Southern Illinois University, Carbondale and has spent 34 years at the St. Louis Post Dispatch and Bill is leading an investigative team working with the Pulitzer Center on Crisis Reporting about civil asset forfeiture. So we'll play a quick video setting this up and then move on. Imagine losing your vehicle because you had a handful of bullets in your possession. It really happened to one man and it is driving the push for major changes in asset forfeiture laws. Correspondent Doug McKellway has the story. Two years ago Kentucky farmer and one-time GOP State House candidate Gerardo Serrano was driving his new $60,000 Ford F-250 truck to visit relatives in Mexico, snapping pictures along the way. When customs agents halted him at the border, demanded his cell phone asking, why are you taking pictures? I just wanted the opening of the bridge. I was just gonna take the opening of the bridge, just the entrance of the bridge. That's all I wanted to do. They searched his truck and found five bullets that Serrano, a concealed carry permit holder, forgot to remove. He was detained but never arrested nor charged nor tried nor convicted. But customs seized his truck, telling his attorneys it was subject to the government's civil asset forfeiture program because it was used to transport munitions of war. Two years later, they still have it. Sam, I heard you on C-SPAN a few weeks ago after the Supreme Court opinion saying that civil asset forfeiture was sometimes law enforcement's dirty little secret. Can you tell us what civil asset forfeiture is and why it is sometimes a dirty little secret for law enforcement? Sure, so civil forfeiture really is one of the greatest threats to property rights in the nation today. It allows the government to take our cash, take our cars, our homes, and often to do so without charging us with a crime, much less convicting us. So the standard of proof is a lot lower for the government than it would be in, for example, a criminal case if they wanted to punish us criminally. And in many states and at the federal level, the version of proof is even flipped in a way that really feels inconsistent with basic notions of due process. And the way it works is this. Once the government establishes that your property is guilty, for example, that your son or your daughter used your car in a drug deal, for example, the property is guilty at that point and the burden of proof shifts back to you, the property owner, to prove your own innocence. So it really is squarely at odds with the basic notion that you're supposed to be innocent until you're proven guilty. And with the stack of cards set in the government's favor so much, it's not that surprising that many law enforcement agencies find it such a tempting tool to use. What makes it almost irresistible for many police and prosecutors, of course, is that on top of it being easier to win a forfeiture case than to win a criminal conviction, the very same police and prosecutors who are deciding whether to use civil forfeiture stand to benefit financially from doing so. And that's because if they take your cash, if they take your house, those same proceeds or much of those proceeds go right back into the budgets of the agencies that are doing the seizing in the first place. And has civil asset forfeiture been used a lot more by law enforcement since the war on drugs began in the 80s and 90s? Absolutely. So civil forfeiture as a general matter has been around for centuries. Scholars trace it back to medieval times and it used to be used to target pirate ships and smugglers back in the 18th century. But it really was something of a legal backwater. It had a kind of a brief moment in the sun in the 1920s when governments were forfeiting model T's during prohibition. But you're right that it really kind of skyrocketed in the 1980s with the war on drugs. You see Congress implementing these very, very stringent civil forfeiture laws and virtually every state in the following years came to imitate those federal forfeitures as well. Also in the 1980s, of course, many states in the federal government instituted this profit incentive where you have the law enforcement agencies getting a major cut of the money that they're going after. So tell us about Tim's versus Indiana. Sure, so Tim's versus Indiana is the case that we had a success on last month. And it arose from kind of unassuming circumstances. Tyson Tim's lives in rural Indiana and he was addicted to heroin for a number of years. In 2013, his father died. He suffered a relapse. But he also got about $70,000 in life insurance proceeds around that time because his dad had died. So he spent about $42,000 of that lawfully obtained money on a new car. He bought himself a Land Rover LR2. And a couple of months after he bought it, a guy who ends up being a confidential informant reached out to Tyson and said, do you want to sell some drugs? Tyson wasn't a drug dealer. He was destitute. He was a drug addict and he kind of accepted the invitation and sold a very small quantity of heroin to people who ended up being undercover police officers. So he's arrested. He's charged. He pleads guilty to one drug dealing account. He's not given any jail time. He's not fined at all by the criminal court. But at the same time, a private law firm in Indiana operating on a contingency fee basis filed an entirely separate lawsuit to forfeit Tyson's vehicle through civil forfeiture. So basically he's facing this whole second round of punishment and one where the law enforcement agency that arrested him, where the lawyers who are prosecuting him all stand to benefit financially from taking his car. So that lawsuit was filed in 2013. We're in 2019 now. So what's happened over the past six years? Well, basically Tyson's been fighting this for over a half decade. The trial court in his case said that as a matter of Indiana statutory law, his car was subject to civil forfeiture because he had driven it six minutes to this one controlled by. But the trial court also said that the forfeiture violates what's called the excessive fines clause in the US constitution and the Bill of Rights. And the excessive fines clause is a neighbor to the much more well-known cruel and unusual punishment clause, which we see in capital cases all the time. And it says what it sounds like it says. It says that governments cannot impose excessive fines on people. The trial court said that taking Tyson's $42,000 car would be an excessive fine, given the gravity of the low level offense. The Indiana Court of Appeals agreed. And where things got interesting and where we got involved was when the Indiana Supreme Court got involved. And that court basically said we don't care if it would violate the excessive fines clause to take Tyson's car. The reason being that we don't think the excessive fines clause applies to state and local law enforcement to begin with. Back in 1832, the US Supreme Court had said that the Bill of Rights applies only to the federal government. And almost by happenstance, the US Supreme Court had never until now clarified that in fact the excessive fines clause under current doctrine applies to the states and localities as well, just like the First Amendment and the Second Amendment applied to states and localities. So that was the kind of the inflection point where the Institute for Justice got involved and we got the US Supreme Court to grant review. And to make a long story short, the US Supreme Court held last month that of course the excessive fines clause applies to the states through the 14th Amendment just as most of the other parts of the Bill of Rights apply to the states as well. That was a lot, so I'm sorry for donning it all. That's great. So now the Supreme Court sent this back to the Indiana Supreme Court? That's right. So it was an important victory. It's one that we're really excited about, but it is just a step in the kind of this six, seven year odyssey for Tyson. The US Supreme Court really issued a narrow ruling saying of course this part of the Bill of Rights applies to the states. The Indiana Supreme Court got that wrong. But you're right, they then sent it back to the Indiana Supreme Court for that court to decide in the first instance whether forfeiting Tyson's $42,000 car does in fact amount to an excessive fine, whether it's an excessive economic sanction under the Eighth Amendment. So what standard will the Indiana Supreme Court apply? Do we know it will be that grossly disproportionate standard that's a fairly tough Eighth Amendment standard to meet? So I think that will be a part of it. The US Supreme Court hasn't really given us a whole lot of guidance on figuring out when a forfeiture is grossly disproportionate, but that is the language they've used. So I think part of the analysis is the court should look to how close was the link between the car and the crime. It's not like a pirate ship which exists solely to plunder other merchant ships. Rather, it was a car that was used one time in a pretty discreet government instigated drug buy. And given that negligible link between property and crime, can we really say that this car is tainted, is so guilty that we can forfeit it? And then a second part of the analysis is, as you suggested, even if there's a link between the car and the crime, is it just at a gut level almost grossly disproportionate to take this recovering drug addict's most valuable piece of property and give it to law enforcement and to private lawyers? You know, in the, that C-SPAN interview on the Tim's case, you said it was overly optimistic to say the Supreme Court decision is gonna be a fix for all times and talked about how the Eighth Amendment excessive fines clause was still a very high bar. Plus you need a lawyer to represent yourself to try to make the claim. Yeah, that's exactly right. I think Tyson's case really exemplifies what the burdens are, even for cases that, in my view, are pretty clear cut constitutional violations. He has been fighting this for six years and he's pretty destitute. He has a job now, he's staying clean, he's going to drug treatment, he's taking all the right steps. But in the ordinary course, he wouldn't be able to afford a lawyer to represent him through every level of the state court system and the US Supreme Court. Certainly not for a $42,000 car. So it's burdensome for property owners to vindicate even clearly established constitutional rights in the civil forfeiture context. And a big part of that is that unlike in the criminal context, people who are ensnared in civil forfeiture don't have a right to a free lawyer. So if the government wants to put you in prison or subject you to a criminal pecuniary fine, in many instances, you can get a public defender of your poor to vindicate your rights. But if the government wants to proceed by this more government friendly mechanism of taking your car, taking your home through civil forfeiture, if you can't afford a lawyer, then you're out of luck. And for that reason, nationwide, just an overwhelming majority of civil forfeiture cases are resolved by default judgments where the property owner doesn't even bother to show up or they're resolved by settlements where the government basically strong arms the property owner to giving up a big chunk of the property without ever really going up in front of a court. I was talking to David Samantha, Northern Virginia lawyer, who was an expert on this area, and he was disappointed in Justice Ginsburg's decision for the court in that he felt as though she should have made clear how there were due process violations in Tim's case. In particular, he was pointing out that Indiana, what you already talked about, Indiana's prosecutors can hire basically a private lawyer to try to get this seizure based on a contingency fee arrangement that at least Smith thinks it would be that whole scheme is a violation of due process. Were you disappointed they didn't go farther or just happy to take the victory that you got? We'll take the win, but I share David's instinct that this very unusual contingency fee system in Indiana is something that we should be outraged about. To my knowledge, there is no other state in the union that allows prosecutors to outsource this really terrifying criminal justice power to private lawyers who have a direct financial stake, not necessarily in doing justice, but in making as much money as they can. So I think that's a profoundly troubling system that Indiana has and it leads to cases like this one where there's really no common sense and reason why the state would sink six years of resources into trying to take one guy's car. So it's a really troubling scenario. We didn't ask the Supreme Court to pass on that, so I can't pretend to be disappointed that they didn't reach out and comment on it, but it's something that the courts should and hopefully will address in the near future. Can you talk to us about the federal equitable sharing arrangement, which sometimes is a means by which states can get around state reform laws and get back property without having to pursue a criminal case? Sure, so I think that's a really great example of how civil forfeiture really, to a large degree, is all about the money for law enforcement agencies because the federal government has this system set up where state and local law enforcement can seize property, but instead of proceeding through state civil forfeiture mechanisms as they did in Tyson's case, instead state and local law enforcement can hand that property off to the federal government, which then through federal law enforcement mechanisms proceeds to forfeit the property and then basically pays back up to 80% of that money right back to the originating state and local law enforcement officials. And what makes this so pernicious is that it really provides an end run in many cases around good civil forfeiture reforms that state law makers may institute. So if, for example, a state were to say, we're concerned about the abuses that arise in civil forfeiture, we want to, for example, raise the burden of proof that law enforcement has to meet under state civil forfeiture. Time and again, you'll see law enforcement at the local and state level in that state simply say, well, it's easier for us just to give this money over to the feds, which aren't subject to these new state law reforms and we'll end up getting a big chunk of that money back anyway. So it really is a tool for circumvention. So I've seen that, I think I mentioned to you, I've seen that in Missouri, which is the state I looked at as part of this Pulitzer project, where Missouri has a very tough on its face reform, civil asset forfeiture reform law that says there has to be a criminal conviction if there's gonna be a state asset forfeiture that there has to be, and the money has to go to the public schools. But in the last three years, $19 million, there were $19 million in asset forfeitures and only $340,000 went to schools. Like that's about two cents on a dollar. And the reason for that is because of this federal equitable sharing. So for example, this past year, $9 million was forfeited in Missouri. Two counties of Missouri, Phelps County and Southwest Missouri, well, sorry, South Central Missouri and St. Charles County near St. Louis were responsible for $5 million of that $9 million. And in all of those, that $5 million in those two counties involved 65 stops on the two highways. There were fewer than 60, in 60 of the cases, there were no criminal charges filed. So one effect that we found in Missouri is that the Tim's case provided some momentum for a reform piece of legislation that's been passed out of committee. Sean Meddogan, who's a Republican from the St. Louis area has been pushing for civil asset forfeiture. And he got through the legislature in the wake, I've got through committee in the wake of the Tim's decision. He got through a bill that would cut off this whole route of federal equitable sharing that's been used so much by these couple of particular counties. We'll see whether that actually ends up getting passed by the whole legislature. A few years ago, Attorney General Holden, Holder reformed the federal equitable sharing process, didn't he? That's right, Attorney General Holder passed some kind of directive or memorandum, which to a degree curtailed the ability of state and local police and prosecutors to kind of hand money off to the federal government. It wasn't a perfect reform, but it was something. But as I'm sure you know, Attorney General Sessions repealed even that incremental step soon after coming into office. One area we haven't talked about is that oftentimes it's marginalized communities who suffer the burden of this. We founded most of the stops for example in Missouri that there were most of those stops were people with Hispanic surnames. I think you know some about the Philadelphia situation where houses are sometimes forfeited because maybe somebody in the family is selling drugs out of the house. That's exactly right. And in fact, we're litigating a class action against Philadelphia on this very, very basis challenging their civil forfeiture machine. But you're exactly right, Philadelphia is a case study in how this kind of system can be abused. The named plaintiffs in our case for example are a mom and a dad who own a home in Philadelphia. And at the time their teenage son sold a small amount of drugs in the front yard or on the sidewalk outside. The parents didn't know about this, not surprisingly. And just one day they come home and Philly cops had boarded up their house. And basically said, you know, this is a site of criminal activity akin to the pirate ship, right? And we're gonna take it from you. Now we ended up getting the house back for them, but you're right that for most people they don't have the benefit of free lawyers to vindicate their rights in this kind of case. It's going back to Tyson's case. He's poor and he spent the past six years juggling logistics and sharing a second car with his aunt who has to get to dialysis every couple of weeks. And it's really difficult for people to survive when the government strips them of a car or a vehicle or something that's just really key to their economic survival. One thing about this area that's interesting is that there's sometimes strange bedfills. I mean, you have conservative libertarians sometimes joining with liberals, civil libertarians like Kato Institute with the ACLU. Does that offer the possibility do you think of getting some federal legislation passed? Well, that's certainly the hope and there have been efforts at the federal level to reform civil forfeiture for years, but I agree, I think that the bipartisan nature of this issue is something that should make us very optimistic. In Tyson's case, for example, at the US Supreme Court we had something like 18 amicus briefs filed in his support and those are briefs that are filed by people who aren't parties, but they're folks who have an interest in the case and wanna share their perspective. And among those 18 briefs were the ACLU, the Kato Institute, the US Chamber of Commerce, the NAACP. So this really is an issue where really the only people who don't think there's a problem are the people who stand to benefit from it, namely police and prosecutors. And unfortunately they are a powerful constituency, oftentimes more powerful than the poor and minority people who feel the brunt of these policies. I mean, if this area is gonna be reformed, does the link between the money and the law enforcement agency getting it back have to be broken? I think that's key, it's critical and that's something that we've challenged in a number of jurisdictions. For example, just last year we successfully challenged the profit fueled system in Albuquerque, New Mexico, a federal judge invalidated that system basically saying that the profit incentive was so strong for the forfeiture unit in Albuquerque that the prosecutors couldn't act with the kind of impartiality that they would have to. But it certainly is a key part of reforming civil forfeiture, ensuring that the people who are making the decision whether to bring this really formidable power to bear, making sure that when they do so, they do so with an eye towards doing justice rather than bolstering their own budgets. We found in Phelps County, one of the counties I was talking about at Missouri, that they had built a new jail, had a new fleet of squad cars. So it's very much something that law enforcement agencies oftentimes rely on for resources. Yeah, that's absolutely right. I mean, it goes towards salaries, towards in one instance a Margarita machine. Margarita machine? The sky's the limit really. Some of our partners, some of the military vehicles in the Ferguson, the police response to the Ferguson disturbances had been bought through this means as well. Thanks a lot. Thank you. Do we have some questions? I'm taking my host, Prague, again to ask a question. It's a question for both of you. What does the macro situation look like? So are you able to tell us on a national level kind of how many civil asset forfeiture actions are we talking about? How much money is at stake? Where geographically around the country is this happening? Any particular bill you touched on this, but demographics who are more or less impacted? Well, let me just jump on that first because that's a great sort of setup for, I urge you to go to the Pulitzer website. It's sort of a fancy, I don't know if it shows up very well just on my computer here, but it's a very nice data visualization of each one of these little green dots that you may be able to see is a forfeiture. And there's associated with this, if you go to the site, and this also works through Twitter, is something called Powered by Forfeit Bot. And each one of these is a particular seizure around the country. So you can get an idea through that of, I mean, you can do some research on your own and search that for the local seizures in your part of the country. There's also a nice sort of map that goes with that, that shows where the greatest seizures are in different parts of the country. Yeah, there's certainly a lot of information out there. The Institute for Justice has a 50 state survey evaluating state laws. One of the problems that we face though is that there is a shocking lack of transparency when it comes to what civil forfeiture actions are brought, particularly at the state level and how that money is used. About half of the states don't have any reporting at all when it comes to these kinds of issues. And many of the states that do have reporting often don't actually comply with the reporting requirements. So we do know that at the federal level, billions of dollars are forfeited. And likewise at the state level, from the information we can gather, we're talking about hundreds of millions of dollars. So we're pleased to welcome our final panel who will be joining us in a moment. And perhaps to keep things moving, I'll frame up the issue while Adi and Isabel join us on stage. So our last fireside chat will be on property rights and housing rights in post Maria, Puerto Rico. Please, welcome. Thank you. After Maria hit Puerto Rico in the fall of 2017, about 60% of FEMA rebuilding assistance claims were rejected, primarily because people could not prove that they owned their homes. And that's for many reasons. We had a conversation earlier with Adi about all of the reasons for that part of them being the very complex property rights system in Puerto Rico, part of that being that more than 50% of the homes in Puerto Rico were informally constructed. So this has become quite an issue in rebuilding. So I'm really pleased to be joined by Adi Martinez-Roman, who is the executive director of the Access to Justice Fund Foundation in Puerto Rico. Adi has been on the ground working with FEMA and with aid applicants to try to help get them rebuilding assistance funds. And with Adi is Isabel Sofia Dieppa, who is a reporter with the Pulitzer Center, who is leading an investigative reporting project looking at land rights and reconstruction in post-hurricane Puerto Rico. Hours after the hurricane hit was if you have been in a war zone or if somebody had drunk a bomb, there was a lot of silence. People did not expect a hurricane of this magnitude. It was just not in the books, ever. 1,200 homes lost their roof, and over 100 homes were totally destroyed by the winds of the hurricane. I didn't sleep. It was like a flashlight all the time looking for them walking around. They would fall on me. Very few people died as a cause from the hurricane. Of course, thousands of people died since, because there was no electricity, no running water, no communication. The people of Puerto Rico have suffered deeply. Thank you. Hi. So Adi, I am very happy that we're up here to be able to talk about property rights in Puerto Rico. It's fair to say that there's a lot to unpack when it comes to understanding property rights and laws in Puerto Rico, especially because the colony of Puerto Rico existed under Spanish rule before it was part of the United States, and many of those Spanish laws are still, they were kind of grandfathered in. So could you please explain a little more about what those nuances in Puerto Rico have to do with those nuances in Spanish law when it comes to property rights? Yes. First of all, thank you, New America, for the invitation and the space, and for all of you that are here. When I try to explain to people what happened after the hurricane with FEMA denials due to ownership not verified, I have to go as back as our Spanish rule before 1898. That was when the United States intervened in the Spanish-American Cuban war and invaded Puerto Rico. So under Spanish rule, the laws were mainly protective of the landowners, the landowners that were mainly Spanish, Spaniards or the Descendants in Puerto Rico, and the poor people, the people that habitated those lands were allowed to live there to use of rights, long-term property rights, I was told today is the name in English. And that transferred when the United States goes into Puerto Rico. What happens is that the farms that were medium and small became bought by sugar landowners. So there was big, big, big huge parcels of lands owned by an absentee landowner and the people that worked the land and lived in the land would stay there because they were allowed to by those owners, again, with long-term use of rights or just with informal permission. A lot of people were displaced on those times from their original place of living and their homes into their cities. And when you have thousands of people immigrating to cities, they start accommodating in pieces of land that are usually environmentally susceptible. They're not the best lands, just the land that other people don't want to be in. And so therefore, since those times, started a process where poor people started accommodating in places where they were not officially the owners of the land, but that they lived for decades and decades until today. When Julia was talking about informality, informality in Puerto Rico is really tied with poverty and socioeconomic development. In Puerto Rico, right now, still, you have more than, it's calculated after the hurricane, 56% more than half of the population is under the poverty level. So when the hurricane hits, it doesn't hit a place that is socioeconomic stable. It is a place where you have more than, calculate 56% of 3.8 million people is more than 1.5 million people living under the poverty level. And on top of that, the property rights still have the connotation or still have the content that was from Spanish times. In Spanish, in that content, you don't have to have a formal title to be the owner. Property is bestowed, it's a right without the title itself. Like the paper does not make the right. What happens is that people are owners, but they, in many cases, people are owners because their great grandfather was the owner and they haven't processed their successions after generations and generations that have passed through. And you would say, but why would people do that? Why wouldn't they want to have a paper? Well, because it's really costly. It's really, really costly under our Spanish inherited law, notaries, for example, are the ones that formalize these documents, are lawyers with an extra formal education. And so it is very formal process, very time consuming, many times you have to go to court to get stuff ratified. And so you combine everything together and you have a lot of poor people, poor families, living on land for years and years. Some of them, in long term, some of them with inheritance that haven't cleared up and now they're called informals. They're not really informal. They have roads, they have electricity, they have water, they have been recognized by the government in many ways. So they're not really informal. They're just not have been able to have that paper to certify that they're the owners of the land. So when FEMA came, it was 63% of the claims were denied, of FEMA claims, 63%. And we have no clear number yet how many of those were because of ownership not verified because we have attempted to get a real number from FEMA and it has not been produced. The number changes each time. But we do calculate that it is a very high number. The foundation that I direct brought funds for lawyers from different organizations in Puerto Rico to go around the island community to do appeals for FEMA to try to get benefits for the people. And you see constantly, constantly that the reason they go to get an appeal is because FEMA denied them because they didn't have their title. Well, the reality is that under the Stafford Act, you don't need the title. You don't need the title. You need to prove that you don't pay rent, that you live in the house, you don't pay rent, and that you're in charge of the utility, the utility, the maintenance of the house. And it was really tough for many families, poor families to have so much resistance in that process of getting benefits. So yes, poverty as a reason of and history, colonial history and poverty as a reason to now, after the hurricane, having so much resistance from the agency in order to get benefits to have a roof over your head. And I think it's fair to say, I mean, Puerto Rico has had hurricanes since forever. Yes. In fact, the word hurricane was a thaino word. And, you know, hurricane Orten's past, hurricane George's past, and people who were the same people who didn't have some of the titles were able to get aid. So do you think that there's any sort of difference on why this was any, why was this treated differently than other hurricanes? Yes. I think that the previous hurricane that was as hard as this one was Hurricane San Felipe in 1928. That was a very, very long time ago. We didn't even have our own government. It's because the first time that Puerto Ricans were able to have a government elected by themselves was in 1947. So by San Felipe in 1928, we didn't even have our own government. But a lot of people died and a lot of people suffered. And there's history, very interesting history about that. But afterwards, when I was alive, so that's not going to say when, but Hurricane Hugo was one of the first ones. And George's, like you say, et cetera. The FEMA did not put as much resistance to giving aid to Puerto Rico or to being able to implement the Stafford Act was not so cumbersome. There are several theories on that. Yes, it's true. María destroyed so many homes. I mean, that number that they give in the videos, only one community. It is calculated that almost 90,000 homes were completely destroyed. Close to 400,000 were damaged badly. So when they bump into all that, it's going to be a huge amount of money to be able to have to recover somewhat. And I think that's my theory, right? That FEMA bumped into this reality, we have to put more controls because it's going to be out of hand for us. And sadly, that mixes with the discrimination because Puerto Rico is a country that is not part of the United States. It belongs to, but it's not part of the United States as the Supreme Court has determined in the cases, in the insular cases and the late cases that happened in 2017. And there's still that foreign sense. We are domestic, but we are foreign. And there has to be caution because these people might want to get advantage of all this money that we are bringing here. And I think we saw a lot of that too. So it's a mix of things. Yeah, so in my investigation, I'm looking at the area specifically of Loisa, Santurza in San Juan and Vieques. We haven't get to spend much time in Vieques, but we spend a lot of time in Loisa and in Santurza. And what's interesting is that, not only is this historical context a part of the puzzle when it comes to understanding property rights, but each area is vulnerable to different things. So you add on to it, for example, in Loisa coastal erosion and climate change and the flooding maps. And all of a sudden, it means that you're not going to get aid because you're in a flood zone. And I know that we had had this conversation before about the rezoning of FEMA declaring different parts flood zones when they can easily be fixed, like in El Caño Martín Peña. Can you explain a little bit more about that? Yes. Now that we went through the FEMA situation, now we're getting funds for community development block grants disaster relief funds, which it is the big amount of money that is supposed to be used to reconstruct and recuperate those low income and hard hit areas. And with these funds, the first assignment was $1.5 billion and it's supposed to be that the local government has an action plan and with that action plan to focus on how they're going to use this money, it's very local oriented funds. The thing is that after the hurricane, FEMA revised the flood maps of Puerto Rico, the flooding maps. And the flooding zone grew 20% than it was before. And already communities that already had flooding, more area gets covered. So the local government now is their position is that they're not going to invest $1 of reconstruction or building in areas that are under the FEMA flood zone map. This problem is not unique like in Hurricane Harvey, or no, Sandy, in New York City, that also happened. And we are looking into that example because there was litigation. There was litigation to dispute the use of FEMA flood maps in order to invest the CDBGDR funding. The thing with Puerto Rico is that I hate to cite Trump, but that's the truth. It is an island, very big ocean around it. And our political situation makes it really disconnect from the mainland. So it's like geographical, it is cultural and it is a political disconnection. So these opportunities to be able to talk to amazing people like you, New America and the people that have now after the hurricane gotten this concern to go to Puerto Rico and study the situations, they are the ones that have said, this happened in Sandy and there was actually litigation for that. So we might be able to collaborate so you guys can present the same argument in Washington or present the same arguments before the courts and we're like, good, we need that collaboration, especially here in Washington because we don't have a voice, we don't have a vote in the Congress of the U.S. So anything that we try to do has to be the help of you all. I'm really glad that you brought up the CDBGR grants. Mostly because speaking to community activists, many of them, they've been waiting, community leaders have been waiting to see who's going to get the grants, how these grants are going to work and for many people who live on the island, Hurricane Maria has been very, very convenient to not talk about the debt and to not talk about the poverty problems that have been occurring historically and I feel like it sometimes gets lost, a lot of times the general public will just think about Hurricane Maria and they won't think about the crushing debt that everyone has to bear, which the median income in Puerto Rico is $20,000 a year. Like, that's the... Yeah, and it's important to people to understand that Puerto Rico was not just hit by a hurricane, Puerto Rico was already hit by a very deep socioeconomic problem because of the huge debt and the assignment of a fiscal board through a law approved by the Congress of the U.S. to assign a board that will determine how the budget of Puerto Rico will be spent, the action of that board has been austerity measures. So, austerity measures, like cutting the pensions, cutting on education, especially the university, cutting on health, the health program. And it was already a crisis and then the hurricane passed and many people say, well, so many people left after the hurricane. Yes, they left to the mainland because they almost all the people that leave Puerto Rico come to the mainland U.S. because we are U.S. citizens and the effect is not only because of the damage that was caused by their lacking jobs, they were already having problems with their economies and it's going to keep happening if we keep looking at the debt of Puerto Rico as a problem, as being solved without austerity measures and definitely the reconstruction funds that are going to be provided by CDBGDR funding. First it was 1.5 billion, now it's 8 billion more, the second phase of the plan of reconstruction. For example, one of the main expressions, public expressions of the president and of the secretary of housing is we are giving all this money for reconstruction. We are going to make sure that it is used as it is supposed to be used because they are, I don't know, afraid that it's going to be used to pay off the debt. That's one of the positions and I say my question goes further than that. My question goes, how are we going to make sure that those funds are really going to be used to favor the people that really needed, the communities, the people that are in the most vulnerable places because they live in environmental hazard lands because they live for generations in land that belongs to their family but they don't have a formal title to the people that are Puerto Ricans. There is a big fear of community displacement and that is what our lawyers, the lawyers that are funded through our foundation are looking at, they are looking at how can you legally empower the community to be able to protect their property rights and Puerto Rican philanthropy and philanthropy from the U.S. that is in Puerto Rico are working together also to try to do that. Thank you so much. You were great. Thank you so much. Hi, I'm Nellie Mecklenburg. I was just wondering because you're talking about the lawyers going and working with individual families on their claims and also the possibility of litigation but has FEMA budged? I mean they've admitted that their response has had issues. Have they evolved their position at all? No. They are as a funder because we are funders of groups that are doing the work in the field so I don't like to say I go to the field because I don't go to the field. I've more worked with the advocacy part trying to meet with FEMA and look for solutions and we did have with other groups in Puerto Rico we had a breakthrough and by 2018 FEMA finally approved a declarative statement for people to use to prove that they are owners under the staff or acts. And we were really happy because it was approved by the Office of Legal Counsel of FEMA but then they told us that's good and we are going to accept to reopen any cases that were denied but we are not going to inform people we are not going to send them letters saying that they have this new right to appeal so we started trying to see how we can convince FEMA to notify, you know, do process you have a new right, you have to be notified of this and you opportunity in court you are notified by the court because FEMA the agency does not want to notify and they said like we got congresswoman and congressman that were writing to FEMA demanding an explanation why wouldn't they notify and they said that the form did not have a logo because it was not really a formal FEMA document and for us it was really frustrating because we did this advancement and then we hit a wall and it doesn't make much sense sincerely because when you go to the community recovery centers that's what FEMA centers are called now in Puerto Rico CRCs they are providing another form done there without a logo not formal but they don't want to provide our form they always say that FEMA is a very bureaucratic agency so it has different levels of decision making but definitely the inconsistencies throughout have repeated themselves and even though they recognize some things that should be fixed because they have, when we try to fix it with them it has come into a wall like that one which was a big wall for us Hi, Katie Pickett from Cadastra Foundation I was just wondering if any of your advocacy is end going into the sectors and the barrios if you are going and speaking to any of these families that have become so big and their properties are so large that they could have formed informal sectors within the barrios if you are speaking to them about their informal hookups to the electrical grids and the water grids as well and their need to formalize those things to provide more evidence that they have lived on these properties for so long and just because maybe they don't have those formal pieces of paper and receipts from PRASA or from PREPA then you know definitely that is a fraction of the problem and with the organizations with our different kinds different level of organizations when I say we work with organizations that we provide funds for civil legal aid and there are different kinds and we were lucky to be able to provide funds to community-based organizations that are more into the communities and could talk about that stuff with the communities but you have to be careful about informal connections to electricity and water is the least of our problems because I'm talking about hundreds of thousands of people that have formal electricity that have formal water and still they were denied because they didn't have a title I mean that is one part of the problem but the problem went even further because people for example that we attended in communities that they have their how you call it the declaration of heirs but because it's all in Spanish and it doesn't say until the end of the page what the property was and the FEMA would deny it or because the description in the title was different from the address but the thing is that the description in the title is very Spanish like when I say Spanish from Spain like in the north it belongs to someone in the south it belongs to somebody else so it describes like the lines it doesn't give an address and then you have the electrical bill and they don't match and they say oh you haven't proven title but you know I have it here so the amount of the denials they might have people that are living in communities like you say that have informal electricity informal water and they got benefits and they got the maximum benefit so it was a problem more like the FEMA problem was more a problem of inconsistency of not understanding the law and of having like this discoordination between the service providers within FEMA so now we are working on we have got funds from Hispanic Federation we've had very good groups like Ford Foundation, Center for Disaster Philanthropy Oxfam Foundation, AERP Foundation that have provided us funds for different legal service projects so now we are working on one with Hispanic Federation where we sit on a table with the groups that are doing the housing and they are working with communities on how to formalize their relationships and have a more organized community and I'm hoping that that model because it is a bottom up model where we are working directly with communities trying to solve the legal issues hand in hand with them is going to be replicated now that we are hopefully going to get more resources to be able to work with the title thing and if I can just kind of add on to that as well is that in Loisa for example people who have plots of land you have families, you have like a sister and brother who live on this plot of land and it's very hard to go in and assess and just draw a line where your house begins where your land begins and your land might end in your sister's kitchen and so it kind of turns into it becomes very difficult to actually just like go in and just say okay we are going to make some lines Yes, specification many times is difficult even because the land registry the thing with the law the property right in Puerto Rico is that it is not obligation to register it anywhere so you have a formal registry that is only there to protect the people that do mortgage and the people that do common property condominiums and superficial rights because the registry is to protect the bank basically and then you have another registry which is the catastor or I don't know the name in catastor which is for the treasury part for taxes sometimes you go to register something in the registry and because it doesn't coincide because you use the catastory information but it doesn't coincide with the one in the registry because the segregation is different in different points they say we cannot register that property you have to do the segregation all over again but that takes money that takes time, resources that families do not have We have like one, no we don't I'd like to thank our last fireside chat panelists and all of the panelists who have joined us today please join me in a round of applause thank you very much for coming please feel free to stick around enjoy a bit of food and a drink and enjoy the rest of the week