Free Motion to Dismiss - Rule 12(b)(1) - District Court of Federal Claims - federal

Case 1:07-cv-00012-MCW

Document 15-14

Filed 01/25/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

ROBERT INGRUM

)
)

Plaintiff,
v.

)
) )

Case No. 07-12L

)

Judge Mary Ellen Coster Wiliams

UNITED STATES OF AMERICA,

) )

Defendant.

)
)

DECLARTION OF HUBERTO HERNANEZ
1. I, Humberto Hernandez, am over 21 years of age, and base this Declaration upon my

personal knowledge, and make it upon my own free wil, without any direction or coercion by
anyone within the U.S. Border Patrol ("USBP"), Department of

Homeland Security, or any other

federal agency.
2. I joined the USBP as a Border Patrol Agent in January 1997, working out of

the

Marfa, Texas Station. I was a Border Patrol Agent until

2001, when I was promoted to the

position of Senior Patrol Agent, which is the position that I hold today.

3. As both a Border Patrol Agent and a Senior Patrol Agent I have been responsible for

interdicting ilegal aliens and drug smugglers along the U.S. border with Mexico. To carry out
that mission, since joining the USBP in 1997 and continuing to today, I have used the
approximately 40 miles of an unpaved section of

River Road (Farm-to-Market, or FM, 170) that

extends from Candelaria, Texas north and ends at Chispa Road (FM 2017), near the line
separating Jeff

Davis County and Culberson County, Texas. As I describe in more detail below,

during the approximately eleven years that I have been using this 40-mile section of

River Road,

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I have found that the road is passable more often than not, with the exceptions occurring after

seasonal, heavy rains. During the time period from 1997 to late 2003, I did not use any special
vehicle to patrol the road, such as an All Terrain Vehicle ("A TV") or a Humvee, but would use

Marfa Station's fleet of standard four-wheel drive vehicles such as Ford Expeditions, Chevy

Suburbans, and Chevy Tahoes. Marfa Station acquired a Humvee in late 2003 or early 2004, and
I only occasionally use it to patrol River Road, more often using a standard four-wheel drive
vehicle which is sufficient to patrol the road (even today).
4. During 1997, I patrolled the unpaved section of

River Road at least weekly,

sometimes as often as three to four times a week. At that time, I accessed River Road from
the north, via Chispa Road, and patrolled traveling southward toward Candelaria. South of

the

land later bought by Mr. Ingrum, the road washed out or eroded away during approximately mid1997, just north of

the cable crossing, rendering it impassable at that point. The section of road

lost to erosion ran on a narrow piece of land situated between the Rio Grande River to the west
and the face of a rock wall to the east.

5. In 1998, the military (Joint Task Force-6, or "JTF-6"), constructed a by-pass route
upland, around the section that had eroded away. JTF-6 also improved other sections of

the road

at that time. In 1998, JTF -6 excavated material from the side of a hil

located on the propert

that Mr. Ingrum would later buy. A picture of

the site is attached as Ex. A.

6. After the by-pass was built in 1998, I patrolled River Road at least two to three
times a week, accessing the road from Candelaria to the south, and traveling northward, passing

the property that Mr. Ingrum would later buy, and continuing to Chispa Road to the north. The
excavation site was (and remains) in plain view from the road, and I would use the excavation

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site as a landmark when on patrol, especially at night because it reflects light from a search light.

After some heavy rains in about mid-1998, the road needed repairs, and JTF-6 returned in early

1999. Until repaired, I again had to access River Road from the north, via Chispa Road.
7. JTF-6 repaired River Road in 1999 by cementing over some low-lying areas of

the

road and improving the grade of

the hill where the by-pass road comes offthe upland to join the

low-lying road to the northwest, near the Rio Grande just south ofMr. Ingrum's propert.
8. After the 1999 improvements, the road was again passable from both directions from the south through Candelaria and from the north via Chispa Road. Except when on detail, I
continued to patrol the road at least two to three times a week from 1999 through 2003, using the
excavation site on Mr. Ingrum's propert as a landmark. During this time period, I was on detail
as an instructor at the USBP's academy in Charleston, South Carolina from about May

to

September 2000, and was occasionally assigned to other, two-week details. (Several years later,
from

May 17,2006 to July 1,2006, I was assigned to a detail in Arizona.)
9. At times, after the 1999 road work, sections of

the road would become impassable

after a heavy rain, but more often than not, the road was passable from both the southern and the
northern approaches. Also, after most rains except the heaviest, even if

the road was not

passable from the southern approach, it remained accessible from the north, via Chi

spa Road,

and would be passable to Mr. Ingrum's propert.

10. After JTF-6 improved the road in 1999, until about 2001, River Road was

maintained by Presidio County. But after the County stopped maintaining the road, its condition
began to deteriorate. Although not in as good condition as it was during the years 1999 to 2001,
since 2001, the road has remained passable more often than not.

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11. Since 2004, I have continued to patrol River Road about once or twice a month (the
frequency of my patrols changed because of my newly-assigned duties and commitments and not
because of

the condition ofthe road). As before, after most rains the road is accessible from the

north via Chispa Road, and is passable southward to Mr. Ingrum's propert.
12. Since 1999 through 2005, Mr. Ingrum frequently called the USBP's Marfa Station to
ask about the condition of

River Road (on at least one occasion, Mr. Ingrum called me at my

residence). The Marfa Station and Marfa Sector phone numbers where I could be reached are 432-729-4250 and 432-729-5200, respectively (the area code previously was 915). During this
time period, 1999-2005 (except when on detail, as noted in paragraph 8, or on leave), I estimate that I spoke with Mr. Ingrum on average at least once a month, or about 60 times total, regarding
the condition of the road. The actual frequency of

my conversations with Mr. Ingrum varied of

course ~ sometimes I would speak with him several times a week. I would respond to Mr.
Ingrum's questions about the condition of

the road only if! personally had patrolled the road by

his propert, or if another agent had reported the condition of

the road to me after he or she had

patrelled that section of

the road. Sometimes I would call Mr. Ingrum to report on the condition

of

the road after patrolling it by his propert.
13. From 1999 to late 2003, about 75% of the times that I reported on the

Toads

condition to Mr. Ingrum, I reported that the road was passable. In other words, on many occasions
I reported to Mr. Ingrum that the road was passable during 1999 to late 2003. After about 2003,
the frequency of

favorable reports to Mr. Ingrum indicating that the road was passable declined, as

the condition of

the road began to deteriorate due to flooding, especially along low-lying areas on

the southern end ofMr. Ingrum's property. As noted above, however, even when River Road is
not accessible from the south, more often than not it is accessible from the north, via Chispa

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Road.
I certify, under penalty of

perjury, that the foregoing statement is true and correct.

Executed on this~.? day of January, 2008.

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EXHIBIT A

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US00927