Private, public border wall lawsuits continue

Construction continues on a privately-funded border wall, despite a signed temporary restraining order, on Monday, in Mission. Photo by Delcia Lopez | dlopez@themonitor.com

McALLEN — Litigation involving both private and public border wall efforts continued here as government attorneys made their arguments against the former and for the latter in separate hearings before the same federal judge Wednesday.

With the International Boundary and Water Commission still analyzing the hydrologic impact data needed to determine if a riverside wall would impact the Rio Grande, U.S. District Judge Randy Crane granted an extension of time to all parties in the government’s lawsuit against the private border wall builders Fisher Industries and its co-defendants, Fisher Sand and Gravel Co., TGR Construction and Neuhaus and Sons.

Crane granted a similar time extension to the National Butterfly Center in its lawsuit against the Fisher defendants, which also includes the non-profit fundraising organization We Build The Wall and its founder, Brian Kolfage.

“We’re really close,” Assistant U.S. Attorney Eric Paxton Warner explained at the start of the Wednesday morning hearing. “The modeling is coming together.”

The federal government in early December sued the Fisher defendants on behalf of the IBWC, alleging that the private border wall project threatened to put the United States in violation of a 1970 international boundary treaty with Mexico.

Under the terms of the treaty, any development within the Rio Grande floodplain — on either side of the border — must undergo IBWC’s scrutiny to determine if it would impact the flow or path of the river and thereby alter the international boundary between the two nations.

Last fall, the commission — which uses the hydrology data to help it make such a determination — alleged the private wall builders had failed to provide sufficient information for it to do so — an allegation that ultimately led to the government’s lawsuit.

However, just over a month after obtaining a temporary restraining order that halted the project through the holidays, the court found the government had failed to sufficiently prove the need to continue the work stoppage. Days later, Fisher Industries CEO Tommy Fisher was onsite at the riverside parcel of land south of Mission as heavy machinery began to place hundreds of galvanized steel bollards into the ground mere feet from the water.

Meanwhile, as the fencing quickly stretched into a glittering silver ribbon 3 miles long, the IBWC continued to process the data. It’s a job that remains unfinished — one Warner estimated Wednesday would take an additional 45 days to complete. Crane ultimately granted the government a 60-day extension.

If the IBWC determines the riverside wall will have no substantial impact on the Rio Grande, the government has indicated it will dismiss the lawsuit. However, court records show the two sides estimate discovery could stretch through the end of September should the lawsuit continue.

Meanwhile, Crane likewise granted a 60-day extension to the National Butterfly Center in its related lawsuit.

The center has bolstered parts of its arguments against Fisher using the same hydrology data as the IBWC, reiterating on Wednesday its interest in the commission’s results. “If those studies come back and they work out, that might drastically change our case,” said NBC attorney Javier Peña.

The three sides will reconvene on April 8.

Crane next turned his attention to ongoing litigation regarding the government’s efforts to access private lands in its attempts to build a swath of public border wall from near the Donna-Rio Bravo International Bridge to just west of the Santa Ana National Wildlife Refuge.

Wednesday’s proceedings focused on two condemnation suits — the first on approximately 23 acres of land owned by Frank Schuster Farms, Inc., and the second on just over 6 acres of land owned by a litany of people, including several members of the Brewster family. In both cases, the landowners raised concerns about their ability to continue to access their lands should the government’s wall be built.

Additionally, an attorney for Schuster sought enforceable guarantees from the government regarding the location of access points that will be constructed in the wall. Though the government has indicated it would include at least three gates in the wall, the attorney noted that that assurance applied to a section of terrain owned by three different landowners, and that the government has made no guarantees that any of the gates would be located on his client’s land.

“There are three tracts that are encompassed in the blue line,” the attorney said, referring to a line highlighting the proposed path of the border wall on a map. He then pointed out the small section of the line that encompasses Schuster-owned land.

“That’s it? That seems rather small,” Crane said. “I didn’t have any perspective on that.”

Schuster’s attorneys also shared their clients concerns regarding how the wall and its associated 150-foot enforcement zone — which includes the construction of a service road on the south side of the wall — would affect drainage and inundation of the farmland.

At that point, Warner, who had remained in the courtroom after arguing the government’s case against the private Fisher border wall, addressed the court to help explain the government’s forward progress in the public border wall project.

The assistant U.S. attorney explained the government continues to conduct geotechnical analyses of the land and estimated it would need another three months to complete them before it could “release the construction contract.”

Meanwhile, in the second public border wall case heard Wednesday, attorneys with the Texas Civil Rights Project, which is representing a handful of the Brewster landowners, argued that the wall’s construction could impede the religious freedom rights of a small congregation whose church is located south of the proposed wall.

In the end, the judge sided with the government in both cases, granting access to the Schuster property and possession of the Brewster property.

Additional hearings have been set in both cases, with Schuster expected back in court next month, while a pretrial conference is slated for October in the Brewster case.