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PF225 Land Acquisition Estates

This narrative is intended to facilitate a decision on these issues by DHS and to provide the USACE
recommendations and rationale for consideration. Under the current process, we anticipate initiation of
appraisal products no later than 1 July 2007 and the estates to be appraised need to be identified by DHS no
later than this date or appraisal production will be delayed. In actuality, we need to define the estate
requirements as soon as possible because any delay impacts our ability to finalize the acquisition limits (for
example, if DHS determined that all mineral interests should be acquired), our ability to analyze the
preliminary title exceptions that need to be cured prior to transfer of title to the U.S, and the ability to push
the schedule to the left.

FEE. USACE recommends a fee estate to support the construction of a primary fence along the southern
border on privately owned strips of land approximately 150 feet in width. This recommendation is based
on: fee provides the Border Patrol better control over these strips of land for purposes of securing the
border; fee value will likely be paid for any lesser estate since few if any rights will remain in the land
owner on this strip of land and any adjacent land no longer accessible; DHS has future plans to add
infrastructure like lighting, cameras, sensors, roads, and a secondary fence along part or all of this same
land needed for the primary fence and one acquisition from each landowner is best for everyone.

At this point, we have concluded that all third party mineral interests (owned by someone other than the
surface owner) do not need to be extinguished. This is supportable only if there is little risk that mineral
extraction on the border properties is viable, or if viable, then it is most likely such extraction would occur
through a method unlikely to disturb the surface and fencing or other infrastructure. We would propose
acquiring mineral interests where owned by the surface owner. To accomplish both of these goals, the
recommended estate is:

The fee simple title to (the land described in Schedule A) (Tracts Nos. , and ),
subject, however, to existing easements for public roads and highways, public utilities, railroads and
pipelines.1
1
Where an outstanding interest in the subsurface mineral estate is part of a block ownership which is to be
excluded from the taking, the following clause will be added: "excepting and excluding from the taking all
interests in the (coal) (oil and gas) which are outstanding in parties other than the surface owners and all
appurtenant rights for the exploration, development and removal of said (coal) (oil and gas) so excluded."

Alternatively, where we know the surface owner also owns the mineral interests, and because DHS may
want to leave as many interests in the surface owner as possible, we could allow the surface owner to retain
his/her mineral rights, but place a restriction on their use of the surface. To accomplish this, we would use
the following fee estate:

The fee simple title to the land, subject, however, to existing easements for public roads and highways,
public utilities, railroads and pipelines; excepting and excluding all (coal) (oil and gas), in and under said
land and all appurtenant rights for the exploration, development, production and removal of said (coal)
(oil and gas), but without the right to enter upon or over the surface of said land for the for the purpose of
exploration, development, production and removal therefrom of said (coal) (oil and gas).

Any other types of minerals could be listed in these estates.

ROAD EASEMENT. This is the recommended estate for all permanent and temporary access roads.

A (perpetual [exclusive] [non-exclusive] and assignable) (temporary) easement and right-of-way in, on,
over and across (the land described in Schedule A) (Tracts Nos. _____, _____ and _____) for the location,
construction, operation, maintenance, alteration replacement of (a) road(s) and appurtenances thereto;
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together with the right to trim, cut, fell and remove therefrom all trees, underbrush, obstructions and other
vegetation, structures, or obstacles within the limits of the right-of-way; (reserving, however, to the owners,
their heirs and assigns, the right to cross over or under the right-of-way as access to their adjoining land at
the locations indicated in Schedule B); 2 subject, however, to existing easements for public roads and
highways, public utilities, railroads and pipelines.
2
The parenthetical clause maybe deleted, where necessary; however, the use of this reservation may
substantially reduce the liability of the Government through reduction of severance damages and
consideration of special benefits; therefore, its deletion should be fully justified. Also, access may be
restricted to designated points.

TEMPORARY WORK AREA EASEMENT. This estate is recommended for work area, laydown and
staging areas needed only on a temporary basis.

A temporary easement and right-of-way in, on, over and across (the land described in Schedule A) (Tracts
Nos. _____, _____ and _____), for a period not to exceed ___________________, beginning with date
possession of the land is granted to the United States, for use by the United States, its representatives,
agents, and contractors as a (borrow area) (work area), including the right to (borrow and/or deposit fill,
spoil and waste material thereon) (move, store and remove equipment and supplies, and erect and remove
temporary structures on the land and to perform any other work necessary and incident to the construction
of the ____________________ Project, together with the right to trim, cut, fell and remove therefrom all
trees, underbrush, obstructions, and any other vegetation, structures, or obstacles within the limits of the
right-of-way; reserving, however, to the landowners, their heirs and assigns, all such rights and privileges
as may be used without interfering with or abridging the rights and easement hereby acquired; subject,
however, to existing easements for public roads and highways, public utilities, railroads and pipelines.

UTILITY AND/OR PIPELINE EASEMENT. This estate is recommended for any utility or pipelines
being relocated to a new location based on the substitute facility doctrine where a new easement must be
acquired for the facility owner at the new location.

A perpetual and assignable easement and right-of-way in, on, over and across (the land described in
Schedule A) (Tracts Nos. _____,_____ and _____), for the location, construction, operation, maintenance,
alteration; repair and patrol of (overhead) (underground) (specifically name type of utility or pipeline);
together with the right to trim, cut, fell and remove therefrom all trees, underbrush, obstructions and other
vegetation, structures, or obstacles within the limits of the right-of-way; reserving, however, to the
landowners, their heirs and assigns, all such rights and privileges as may be used without interfering with
or abridging the rights and easement hereby acquired; subject, however, to existing easements for public
roads and highways, public utilities, railroads and
pipelines.

There are many other questions revolving around reservation of rights by the surface owners and third
parties. These questions include, but are not limited to, how to handle access for purposes of riparian water
rights, grazing, and pipeline crossings. For appraisal purposes and prior to negotiations, we recommend
planning to acquire these interests. If the appraisers identify any pipeline crossings or similar issues of this
sort, the plan would be for USACE/DHS to work together to make project-wide policy decisions on how to
handle these issues and modify the appraisals. It is imperative that these policies be fairly and consistently
applied throughout the project acquisition.