A local landowner was awarded more than a half-million dollars in damages after a judge found that the U.S. Border Patrol was negligent in operating a nearby firing range, which led to severe contamination on his property.
However, despite ruling in favor of Nogales resident Nohe Garcia, who owns roughly 355 acres of undeveloped land on the west side of Nogales near a former Border Patrol gun range, U.S. District Judge Rosemary Marquez refused to award Garcia the full amount sought. She also did not specify when the federal government will have to carry out cleanup efforts on his land.
“What was clear is that they are responsible 100 percent, but it is not clear when they’ll clean the land. My interest is that they clean it because it could hurt future development plans,” Garcia said in a phone interview Friday, adding that his lawyer has requested a clarification on the judge’s ruling.
He declined to comment further on the case citing the ongoing litigation.
The lawsuit stems from large amounts of pollution found in the soil at several properties near a half-acre site off Target Range Road that the Border Patrol used as a firing range from 1972 until June 29, 2010.
Following a March 2009 study done on Garcia’s property west of the shooting range, which showed large quantities of bullet fragments on the northeast end of the site, Garcia and Joe Barr of Mariposa Properties, who owns land adjacent to the shooting range, reached out to the Border Patrol in an effort to correct the problem.
In May 2010, Barr sent a letter to the agency’s parent organization, U.S. Customs and Border Protection, outlining a mitigation plan that CBP had to adhere to in order to continue using the shooting range. That same month, after learning of the extent of the contamination, Garcia directed the Border Patrol “to cease depositing bullets” on his property, the lawsuit states.
The Border Patrol, however, continued using the firing range for another month without his consent.
Garcia subsequently filed a lawsuit against the federal government in 2011, alleging that he couldn’t develop the land affected by the shooting range because of the environmental damage.
La Loma Grande LLC, an industrial development firm owned by Garcia, bought the property in 2004 for $1.25 million. The property, known as Wilson Ranch, consists of a 216-acre northern parcel and a 138-acre southern parcel. Garcia’s intent was to develop the land into an industrial subdivision, which he’s currently doing with the northern parcel that is not affected by the contamination at issue in the lawsuit.
A little more than 98 acres of the southern parcel, however, can’t be developed because the soil is contaminated due to stray bullets and bullet fragments on the land.
History of the range
The shooting range is located on private property owned by Paul Arbo and leased to CBP. Since 2001, the Border Patrol has paid $3,100 per month to use the space, and though the agency no longer uses the land for target practice, it continues to lease the property until contamination issues are resolved.
As part of the lease, the Border Patrol agreed to maintain the land and ensure it was kept in safe conditions.
Though a backstop berm was installed in 1979, around the same time a formal lease agreement was signed with Arbo, the judge ruled that the range itself was not properly designed to contain the bullets.
“Though the Border Patrol’s lease with Mr. Arbo indicates that the Arbo Range is to be used as a pistol range, the Border Patrol also used the range for shotgun and rifle qualifications. In addition, agents sometimes shot familiarization rounds with grenade launchers on the range,” Marquez wrote, adding that testimony presented during trial revealed that agents also shot automatic weapons at the range.
“The range was insufficiently large, and the berms were insufficiently tall, in light of the types of weapons used and the angles at which shots were fired,” she added. “Although the evidence does not indicate that Border Patrol agents intentionally shot bullets onto adjoining property, the Border Patrol knew to a substantial certainty that bullets from the Arbo Range were landing on adjacent property.”
A two-year study between 2011 and 2013 on the target range found high levels of lead, antimony, arsenic and polyaromatic hydrocarbons in the soil “at concentrations above background or applicable regulatory limits.” Bullet fragments were also found in the wash and hillside and as far as 600 feet west of the range.
In a 67-page document posted to its website last November, U.S. Customs and Border Protection outlined the three-phase remediation plan, which includes excavating the contaminated soil, shipping it off to an appropriate landfill that handles hazardous waste, and backfilling and grading the site so that rain and runoff moves to an off-site drainage pathway.
John Lawson, former section chief at U.S. Customs and Border Protection’s Joint Task Force-West, told the NI in December 2015 that the U.S. Army Corps of Engineers would seek proposals for the environmental cleanup project, estimated to cost more than $3.7 million, in the first quarter of 2016. CBP uses the Corps of Engineers for support on such projects.
According to FedBizOpps, the official website where government agencies post procurement opportunities for contractors, the cleanup project has not yet been bid out.
In her decision, Marquez wrote that though it was likely that the Wilson Ranch property was already contaminated when Garcia purchased it in 2004, the purchase price didn’t reflect the contamination on the land and therefore he paid more than what it was worth.
She wrote that with proper management, outdoor shooting ranges shouldn’t pose an environmental risk to neighboring properties. However, the Border Patrol was negligent in containing the firing to within the Arbo property and intentionally and continuously trespassed onto Garcia’s property by depositing bullets on his land even after he asked that they stop, she added.
As of earlier this year, CBP had not removed the bullets or bullet fragments from Garcia’s property or remediated contamination on the land, Marquez wrote.
“The Border Patrol has developed a proposed cleanup for remediating contamination on the Arbo property, however, the cleanup effort is currently underfunded and it is unclear when sufficient funding will be obtained,” she wrote, adding that plans to address contamination on Garcia’s property have come to a halt pending a decision on whether the property qualifies for remediation under a federal program.
Relying on good faith that the government will remediate the contamination, and because the cost to clean the land far outweighs the value of the property, Marquez wrote that “the court finds that lost value, rather than the cost of restoration, is the appropriate measure of damages.”
Following an 11-day bench trial at U.S. District Court in Tucson, the judge awarded Garcia $542,355 in damages on July 26.
Though Garcia estimated that the property was valued at $120,000 per acre in an uncontaminated state, Marquez found that his valuation was inflated. Garcia’s real estate expert Steven Cole said the land was worth $36,000 per acre, but the judge also threw out his appraisal after taking issue with the methodology used to reach that figure.
If the judge had relied on Garcia’s estimate, he would have been awarded more than $11.8 million. Cole’s valuation would have guaranteed Garcia upwards of $3.5 million.
Instead, Marquez based her decision on the federal government’s real estate expert, who appraised the land at $5,500 per acre.