Attorneys agree changes can be made to federal order in private wall case

The Rio Grande hugs up against the banks near the privately owned land by Neuhaus & Sons at Monday, Dec. 9,2019 in Mission. (Photo by Delcia Lopez |

McALLEN — At a federal court hearing Thursday, attorneys for the government and Fisher Industries came to an agreement to modify the temporary restraining order issued Dec. 5 to halt construction of a private border wall.

The court informed both parties that they are able to modify the TRO — filed Dec. 5 by the U.S. Attorney’s Office on behalf of the International Boundary and Water Commission to halt construction of the private wall — with regard to the concerns discussed at the hearing.

The order was filed against Fisher Industries, Fisher Sand and Gravel Co., and Neuhaus & Sons LLC. We Build the Wall, a nonprofit group that gained national attention for aggressively raising money for the building of a private border wall, has since been released as a defendant in the suit.

Attempts to reach We Build the Wall and founder Brian Kolfage have been unsuccessful as of press time.

At a status hearing before U.S. District Judge Randy Crane, the IBWC expressed concern about the continued private border wall construction site.

The attorneys for the federal government argued that they have been trying to get LiDAR results — a radar based system for weather to provide direction and contour — from Fisher Industries, which is an IBWC requirement.

Furthermore, the attorneys for the federal government said the IBWC met with Fisher Industries in October and said Fisher knew a LiDAR study would be needed and also had the opportunity to do a required hydraulic study.

They believe that Fisher Industries have done damage to the riverbanks and provided photos of trenches near the banks to address these allegations.

According to the TRO, crews can “clear and grub, trench, place rebar and conduit in the trench and seed and plant on the subject property,”

While trenches are permitted, attorneys for the federal government claim that the construction is digging more than needed and weakening behind the bank, based on the photos.

Ernest G. Fielder, the attorney for Fisher Industries, said they had the IBWC walk the property and nothing secretive was occurring. Throughout the hearing, he denied violating the TRO.

Furthermore, Fielder offered to stop construction and pay a bond of $500,000 to prevent a longer process. Fielder also expressed concern about the workers at the site, which roughly numbers 70, and that they need to get back to work.

As for the IBWC’s concerns with the riverbanks, Fielder mentions that although they cannot restore the trees and plants they removed, they would replant, tear down the wall and restore the banks.

The Federal Emergency Management Agency also has access to LiDAR studies Fisher Industries needs, and the judge ordered the attorneys for the federal government to get those studies from FEMA by Tuesday.

If FEMA does not provide the studies by that time, the court will issue an order mandating they be handed over.

Both parties are expected in court Thursday, Dec. 19, to discuss the terms of the restraining order and if Fisher Industries’ bond offer will be needed.