Challenges remain for private border barrier

A panel containing 36 galvanized steel bollards is moved by a crane to be placed into concrete on private land next to the river on Wednesday south of Mission. (Delcia Lopez | dlopez@themonitor.com)

MISSION — Tommy Fisher was affable and welcoming here on Wednesday afternoon as he greeted a group of reporters at the riverside property that has spawned multiple headlines in media outlets across the country.

Fisher had reason to celebrate, as behind him, construction crews were well on their way to installing some 3 miles of bollard fencing just feet away from the placid waters of the Rio Grande — a high visibility monument to private enterprise offering one potential solution to the public issue of border security infrastructure.

As CEO of Fisher Sand and Gravel Co., the North Dakota company founded by his father and which has positioned itself as an innovator in border wall construction methods, Fisher has become a central figure in national discussions about border security.

His rise to prominence in those discussions has come after numerous appearances on cable media, such as Fox News, where he has worked to convince both the public and government officials that his company’s wall-building methods can be accomplished faster and at lower cost than those currently employed by the federal government.

Fisher’s projects along the southern border include less than a mile of bollard fencing erected on private land in New Mexico where that state line meets El Paso. And late last year, Fisher Industries was awarded a $400 million federal contract to construct 31 miles of fencing near Yuma, Arizona.

But it was Fisher Industries’ project on private property in the Rio Grande Valley that sparked the latest debate. Located on property owned by Neuhaus & Sons, the project quickly became the focus of two separate lawsuits.

The first, filed in state district court by the National Butterfly Center on Dec. 3, alleged that the wall’s construction would cause erosion and thereby impeded the NBC’s private property rights. Too, the complaint alleged that one of the project’s most visible fundraisers — Brian Kolfage and his nonprofit organization, We Build The Wall — had defamed NBC President Marianna Treviño Wright.

Just days later, the federal government also sued Fisher, along with several others, alleging that the project threatened to put the U.S. in violation of a 1970 international boundary treaty with Mexico. The U.S. Attorney’s Office for the Southern District of Texas filed the lawsuit in federal court on behalf of the International Boundary and Water Commission, the agency tasked with maintaining and enforcing the treaty.

A judge granted the government’s request for a temporary restraining order, effectively halting progress on the project and ultimately, both cases were heard in federal court — at the same time.

However, on Jan. 9, U.S. District Judge Randy Crane lifted the TRO and denied the government’s request for a preliminary injunction. He also denied the butterfly center’s request for a TRO of its own.

Fisher has wasted little time in the days since Crane’s twin decisions. By Jan. 12, crews had once again been mobilized at the construction site just south of Mission. And by Wednesday, Fisher estimated some 1,500 feet of bollard fencing had already been installed.

Tommy Fisher, president and CEO of Tempe, Ariz.-based Fisher Industries, talks about the patent pending type of cement used in the private wall on Wednesday south of Mission. (Delcia Lopez | dlopez@themonitor.com)

GALVANIZING SIGHT

Fisher was eager to show off progress on the project, which he hopes will serve as a model for future border wall construction.

As the sun shone down on the site, occasionally obscured behind cumulous clouds fat with the promise of fair weather, a drone buzzed by overhead collecting aerial footage. Media were escorted onto the property by private security personnel down a winding dirt lane through cleared land abutted by sugarcane fields.

At the river’s edge, the already installed portions of wall snaked eastward in a silver ribbon that glittered in the sunlight and narrowed toward the horizon. The fence — and the artificially gentled slope of the riverbank before it, which lay naked after swaths of invasive carrizo cane and brush were cleared from it — cut a sharp contrast with the dark green waters of the Rio Grande flowing quietly past.

Here and there, verdant sprouts of Bermuda and Johnson grasses dotted the bare soil where it had been seeded to replace the cane.

The installation continued westward, with several Caterpillar excavators holding 40-foot sections of wall aloft on steel frames as workers poured the concrete base. The heavy machinery remains in place for approximately an hour and 45 minutes as the concrete sets, Fisher said. After that, the frame can be removed, freeing the excavator to position another section as the concrete continues to cure.

Each 40-foot section contains 36 free-standing bollards set in a 4-foot wide pad of concrete that is sloped slightly to allow water runoff toward the river. The zinc-galvanized steel will allow the wall to stand for more than a century, Fisher said.

Each bollard will also be filled with pea gravel and topped with a small, four-sided concrete pyramid that is at once meant to repel climbers, and to evoke images of the Washington Monument.

Once all the bollards are installed, crews will then construct a concrete service road, for a total of approximately 24 feet of paved surface. “That’s what we like to call our whole system — a no rust, no dust solution to border security,” Fisher said.

The project also includes lighting, surveillance cameras, fiber optic vibration sensors, and “anti-tunneling down to 30-some feet,” Fisher said.

If the weather holds, Fisher estimates he can have all the bollards in the ground within two weeks.

A panel containing steel bollards is moved into place with a crane on private property next to the river on Wednesday south of Mission. (Delcia Lopez | dlopez@themonitor.com)

PROJECT PRICE

Fisher was hesitant to say how much the TRO-induced month-long work stoppage impacted overall costs, but he did say the 3-mile project would come in at approximately $42 million, or approximately $14 million per mile — well under what the government pays for its wall projects, he said.

As to where that money is coming from, the CEO said much of it is coming from him. “Through my years of work,” he said with a wry chuckle. “Profits from Fisher (Industries), borrowing from the bank, you know, no different,” he said.

He estimated approximately half the funding is coming from “cash flow” and half from financing.

The project has also received money from Kolfage and We Build The Wall’s GoFundMe fundraising efforts. Though both were initially named as co-defendants in the government’s lawsuit, they were dismissed early on after convincing the judge of their minimal involvement in the project.

And even as Kolfage continued to tweet about the project Wednesday morning — going as far as to refer to Fisher as “our contractor” — Fisher sought to distance himself from the organization during the afternoon media tour. “They were a small donor up front, but they haven’t done anything else, and so that’s really it,” Fisher said. “We’re going our way,” he added.

Financial questions also remain regarding the land itself. Fisher testified in court that his company had entered into a lease/purchase agreement with Neuhaus & Sons, but has declined to speak about the purchase price. Private property sales are not subject to public disclosure in Texas.

Fisher did, however, reveal new details about the land agreement Wednesday. The deal will be finalized after construction, he said. “What we do at the very end, we’re gonna take a string line off these (light) poles, 15 feet, draw the line, and that’s gonna be my line,” Fisher said, describing the property line that will be delineated from the riverbank landward.

“I’m gonna be his (Lance Neuhaus’) neighbor — or, hopefully, the federal government will be,” Fisher said.

THE END GOAL

And with that, Fisher also revealed his ultimate goal for the project — that it be taken over by U.S. border enforcement agencies. It’s something he hinted at several times throughout the tour. “Once everything’s done, we’ve invited them to come down and see it,” Fisher said. “Then, hopefully, they like what they see and we can talk about not only moving this project to them, but several more.”

Nor did he rule out the possibility of reaching a lease agreement with the government. “It just depends on what DHS wants to do in the long run — if they wanted to take an option where we maintain everything,” he said.

Fisher said he also hopes the government will adopt his wall building methods in its other border projects — including building right along the river itself, rather than farther inland. “I think that if we can prove that we can build there, hopefully the government possibly can change course and look at it,” he said.

But it’s a high-risk gamble. Some of Fisher’s other projects have come under scrutiny before. Just last month, the Pentagon’s Office of the Inspector General announced it would be reviewing the company’s $400 million contract award for the Yuma project in response to a request by Rep. Bennie G. Thompson (D-MS), who chairs the House Committee on Homeland Security.

In a letter released Dec. 4, Thompson cited concerns that Fisher Industries’ fencing “reportedly did not meet the operational requirements of U.S. Customs and Border Protection.”

For National Butterfly Center attorney Javier Peña, Fisher’s plans to have the government take over the Mission wall seem unlikely. “Since it doesn’t meet any of the current specs, there’s no way that the government could purchase those (walls) anyway,” Peña said.

Meeting government specifications aside, Fisher may soon encounter new obstacles to his plan: federal lawmakers. Two local congressmen addressed the issue during visits to the Valley this week.

Rep. Vicente Gonzalez said he would be interested in forming a roundtable of experts to explore the legalities of the government taking over privately built wall. “It’s gonna be interesting,” Gonzalez said. “This is historical, really, on how we’re dealing with border issues on our southern border through public and private property.”

But Rep. Henry Cuellar took it one step further. Cuellar, who has faced criticism for twice voting to approve public border wall funding, was also instrumental in adding language to an appropriations bill last year that spared the NBC, La Lomita Chapel and Bentsen-RGV State Park from federal border wall construction.

Now he says he plans on adding similar language to legislation that would prohibit the government from taking over projects like Fishers’. “I’m going to try to prevent the government from taking over this wall,” Cuellar said in Spanish.

“The same way we added language to protect the butterfly center… add language there to say that the federal government shall not acquire from a private individual, private company, a fence on the border,” he added a few moments later in English.

Workers prepare rebar as they set the galvanized steel bollards in place on private land Wednesday south of Mission. (Delcia Lopez | dlopez@themonitor.com)

LEGAL FIGHTS CONTINUE

Meanwhile, neither the government’s, nor the NBC’s lawsuits have been resolved.

In the wake of Crane’s twin rulings, Fisher’s attorney, Mark Courtois, has filed to have the lawsuits dismissed. For the government, the Assistant U.S. Attorneys continue their work on the case, and have submitted requests for transcripts from the two days of evidentiary testimony.

Peña has also filed a motion to have the butterfly center’s suit remanded to state district court to continue litigating the property rights issues.

Crane’s rulings came after the IBWC’s chief witness, Dr. Padinare Unnikrishna, testified that the agency needed more time to run hydrology data through the predictive modeling software it relies on to determine whether a development project could impact the international boundary treaty.

The IBWC’s chief of engineering services estimated the agency could complete a second run of the data using updated variables as early as Tuesday. The NBC, too, hoped for more time for their expert witness, engineering geomorphologist Mark Tompkins, to work with the data.

“We’re very disappointed, because at least we would have had some clear answers,” Peña said of Crane’s decision to make a ruling before the data had been finalized and the IBWC could make its official determination. “The only thing we had in front of us were speculative studies that everyone admitted were not reliable.”

Reiterating comments she made outside the courthouse immediately after the ruling, Treviño Wright expressed her continued shock at the judge’s decision. “I’m simply astounded that a federal judge chose not to uphold a U.S. treaty,” she said Friday.

“Obviously, the judge had his own agenda. I can’t speak as to what motivated him, but the evidence of his agenda is apparent in his decision,” she added.

Throughout the process, Tommy Fisher has insisted his project is safe. “We’ve replanted a single row of silver trees that never shed a leaf, never shed a log,” Fisher said.

Too, his company continues to work with the IBWC on the predictive modeling, saying his own engineers have successfully run the updated data. “We’ve checked it with three different computers and we know it works,” Fisher said.

A spokesperson for the IBWC declined to comment on the status of the agency’s attempts to run the data, citing the pending litigation and deferred questions to the Department of Justice. A message left with the DOJ went unreturned as of press time Saturday.

All three sides are expected to meet again in court on Feb. 5.

darevalo@mvtcnews.com