Two federal lawsuits against those involved in the construction of a private border wall south of Mission have become the latest court proceedings to be delayed by the coronavirus.
Hearings in the two suits — one filed by the federal government on behalf of the International Boundary and Water Commission, and the second filed by the National Butterfly Center and its executive director, Marianna Treviño Wright — were slated to occur April 8, picking up where three sides left off in February.
Instead, the hearings have been postponed for another month — until May 6, according to court records.
Though filed against the same defendants and alleging the private wall construction will result in legal damages, the two suits argue disparate matters of law.
In early December 2019, the U.S. Attorney’s Office filed a lawsuit against Fisher Industries, Fisher Sand and Gravel Co., Neuhaus & Sons, and the non-profit fundraising organization We Build The Wall, as well as its founder, Brian Kolfage.
Both WBTW and Kolfage were dropped from the suit, however, after successfully arguing they had minimal involvement in the project. Later, a wholly-owned subsidiary of Fisher Sand & Gravel Co., TGR Construction, was added to the government’s suit.
The government alleged the wall’s construction could put the U.S. in violation of a 1970 international boundary treaty with Mexico — a treaty enforced by officials on both sides of the border via the IBWC.
Under the terms of the treaty, anyone wishing to develop land within the floodplain of the Rio Grande — whose path defines the international boundary line between the two countries — must submit hydrology data showing the potential of such development to alter the flow or course of the river.
The suit alleged the project “…may cause a shift of the Rio Grande river channel and, therefore, a shift of the international boundary line which runs in the center of the riverbed, may cause a violation of the 1970 Treaty…” read an amended copy of the government’s complaint.
Meanwhile, the butterfly center had filed a lawsuit of its own against the private wall builders just days before the federal government; however, theirs was filed in state court. There, the NBC alleged the wall’s construction would impede the center’s private property rights by potentially causing damage to its property in the event of a flood.
With the two legal actions proceeding concurrently against them in separate venues, Neuhaus & Sons — the landowners of the project site — filed to move the NBC’s lawsuit to federal court, arguing the federal issues superseded any state issues.
Initially, Crane granted the government’s request for a temporary restraining order to halt construction. The TRO remained in effect through early January, when the three sides reconvened in court to discuss the hydrology data at the heart of both cases.
Then, and in a later hearings in January and February, scientists with the IBWC testified the data was still undergoing the computer modeling process. The commission needed more time to run the data, analyze it and make its determination regarding how the construction would or would not impact the river.
Crane granted that time, allowing an additional 45 days for the commission to complete its analysis. But the judge also lifted the TRO, allowing Fisher Industries to begin construction almost immediately. Within days, a 3-mile ribbon of galvanized steel bollard fencing glittered along the freshly shaved riverbank.
Today, the fence is up, mere feet from the water, and much farther south of the path of the government’s own border wall which is slated to be constructed in the area. But whether the private wall will — or is — impacting the course of the river remains to be seen. The IBWC’s modeling results were expected to be unveiled at next Wednesday’s now-postponed hearing.
Crane was also set to deliberate a motion filed by the defendants seeking to dismiss the butterfly center’s lawsuit in its entirety.