As private border wall lawsuits drag on, president weighs in

Wall builder stands by project

Just days after the parties in two lawsuits against private border wall builder Tommy Fisher met in federal court for a much delayed status conference, President Donald Trump took to Twitter to weigh in on the high-profile project.

The president criticized the project early Sunday morning, saying he never approved of the construction of the three-mile stretch of private border wall built just feet from the Rio Grande south of Mission. “I disagreed with doing this very small (tiny) section of wall, in a tricky area, by a private group with raised money by ads,” the president’s tweet reads.

Trump’s tweet also seemed to show support for the current methods of border wall construction followed by the Department of Homeland Security, which — despite being able to circumvent numerous environmental laws as it pursues the physical fortification of the nation’s southwest border — nonetheless adheres to much more stringent regulations, including building as much as 1.5 miles or more away from the riverbank.

“It was only done to make me look bad, and perhsps (sic) it now doesn’t even work. Should have been built like rest of Wall, 500 plus miles,” Trump’s tweet concludes.

THE CASE THEN

It’s in part those strict development regulations that landed Tommy Fisher and his network of companies — Fisher Industries, Fisher Sand & Gravel Co. and TGR Construction — in court last December, when the federal government sued them on behalf of the International Boundary and Water Commission.

The government alleged the project could put the United States in violation of a 1970 international boundary treaty with Mexico and sued Fisher, as well as landowners Neuhaus & Sons, and the non-profit fundraising organization, We Build The Wall and its founder, Brian Kolfage.

WBTW and Kolfage were dropped from the suit early on.

The court granted the government a month-long temporary restraining order against the defendants, but allowed the project to move forward  in January.

The government’s concerns, however, proved true just a few months later, when the IBWC’s geomorphologists and engineers concluded at least one section of the bollard wall structure violated the treaty by creating a point where too much water would be deflected during a flood. The IBWC notified Fisher of its conclusions in an April 23 letter, which also outlined the commission’s concerns regarding future maintenance of the site.

But what that conclusion means for the future of the private wall is yet to be determined as the suit has dragged on for months — delayed first by issues in acquiring and analyzing hydrology data and predictive modeling, then by the coronavirus pandemic.

THE CASE NOW

Little progress was made during a Wednesday morning status conference, where Fisher’s and the government’s attorneys were joined by attorney Javier Peña, who is representing the North American Butterfly Association and Marianna Treviño Wright, executive director of the National Butterfly Center, in a separate lawsuit against the private border wall project.

Attorneys for the government indicated they would be willing to reach a “settlement posture” with Fisher, despite bringing up new concerns with the integrity of the build site in the wake of spring rainstorms.

“In addition to a 10% deflection along the fence, we’ve identified some new erosion that has occurred at the base of the wall part of the fence, as well as the bank,” Assistant U.S. Attorney Eric Paxton Warner said at the top of the hearing.

“We’ve actually identified four areas for them that we believe that we could come to an agreement, can move this case forward into a settlement posture,” Warner said.

However, Ryan K. Patrick, the U.S. Attorney for the Southern District of Texas, also took to Twitter — taking a more aggressive posture than his attorneys have thus far in open court, when he responded to the president’s dismay over the private border fence with a series of comments of his own criticizing the project.

“What they built is one step beyond vaporware,” Patrick tweeted Sunday evening. “We said it was too close to the water, erosion would be an issue, the location made no sense, etc.” he said.

Echoing concerns from the butterfly center, Patrick tweeted about the difficulty maintenance crews will have accessing the riverside portion of the property, as well as potential safety issues for Border Patrol boat crews who may need to come ashore. “Tactically, the fence makes no sense. There was no way to easily get a truck or mowers on the river side of the fence once the erosion started,” he said.

“This was a vanity project that We Build the Wall admitted they were only social media cheerleaders for. What a scam,” Patrick tweeted.

The erosion Warner spoke of in court gained some publicity late last month, when officials with the butterfly center began to raise alarms that the artificially graded and denuded riverbank had suffered catastrophic erosion in the four months since its construction — potentially putting the fence at risk of collapse.

And it was widespread reporting on the erosion which prompted a response from the president, who linked his Sunday morning tweet to a report about the issue by ProPublica and the Texas Tribune.

But wall builder Tommy Fisher insists his wall is sound. “I know that, as a builder, that we’re right. And I’m hoping that the right information gets out,” Fisher said Sunday, adding later that he is “a hundred percent behind the president.”

“I’m hoping that all the right information gets in front of him and presented and he’ll take another look, because I believe in my heart we built what will work, you know, and as close to the border as you humanly can do it to provide border security,” Fisher said.

EROSION ISSUES

Though the government appears willing to settle its litigation against Fisher without going to trial, the new erosion issues only serve to bolster the butterfly center’s concerns in its own lawsuit, which alleges the structure would have negative impacts on the center’s adjacent property, in violation of its property rights.

The erosion is also something Peña hoped would be more alarming to the government. “The amount of soil — American soil — that has been washed away in just four months because of this construction, and them resurfacing the entire bank along that three-and-a-half mile stretch, I would think would be more concerning to the U.S. government,” Peña said.

Photographs of the riverbank, which Fisher defoliated and artificially graded to a 5-to-1 ratio before seeding the soil with grass, now show large swaths of barren earth riddled with large, vertical cracks running from the concrete base of the wall, to the water’s edge.

In other spots, chunks of the riverbank have eroded away — a process called “scarping” that has created steep, shelf-like drop offs where the gentle slope has been sheared away.

“The claim from Fisher was that their new model, you know, it was somehow magically going to stop erosion. It was going to protect the shoreline and protect the border even more than not doing anything. And I think we’ve seen (in) the last four months that that’s entirely false,” Peña said.

The attorney and his clients fear one bad tropical weather system could knock the structure off the map, not only damaging the butterfly center’s adjacent property, but ceding land to Mexico, as well.

Fisher scoffed at the prospect and at criticisms from structural engineers in media reports. “In my opinion, they need to come out here and take a look and I’ll gladly go out there and take a look with them,” Fisher said of independent engineers inspecting the condition of the fence.

“I drove it … but it’s absolutely utter nonsense,” he said.

The erosion spots were part of the construction plan, Fisher said. Rather than fortify the entire length of the riverside part of the fence, which would be prohibitively expensive, Fisher intentionally chose to put the structure to a practical test, allowing the weather to determine where the riverbank needed shoring up.

“If we had enough money that we could completely sod grass it, or we can complete concrete it… but we don’t,” Fisher said. “We still have to be, how do you want to say, fiscal responsible to build something that will last and still be somewhat within budget,” he said.

Already, crews have been at the site mowing vegetation. And in time, they will return to reinforce the eroded spots with rip rap, which Fisher explained are stone-lined ditches that will direct the flow of water at the spots with increased erosion.

“Now we know where the water runs 100% accurate, because the water don’t lie. … Those spots will be fixed, placed with rip rap and there’ll never be another issue,” Fisher said earlier this month.

Doing that will keep project costs down, as little as 1-2% of the project’s $42 million cost, much of which the builder paid for himself and via loans, he said in January.

MORE STUDY NEEDED

Back in court, the waiting game continues.

The government and Fisher’s attorneys requested more time to find a compromise regarding the water deflection points that predictive modeling show put the wall in violation of the treaty with Mexico.

“We need to get the engineers together to discuss this deflection point, what it’s due to,” said Fisher attorney Mark Courtois. “We’re in disagreement on that issue and we need the engineers to come to a decision and consensus,” he said.

The government has also struggled to communicate with the IBWC’s Mexican counterparts — an issue they surmised was exacerbated by the ferocity of the COVID-19 pandemic on that side of the border.

Multiple attempts to contact Mexican officials have failed. “We’re not getting any response from them, your honor,” Warner said.

In a second set of tweets Sunday, the U.S. attorney also raised concerns that the structure could act as a blockade in the event of a flood, exacerbating inundation before causing the wall to fall.

“If the area within the fence fills up like a bathtub and cannot drain fast enough because the pylons impede the flow… catching branches and other floatsam (sic), then the fence could fail,” Patrick said, including with the tweet a satellite image of the U-shaped stretch of land where the private wall sits, overlaid with crude sketches of where flooding could compromise the structure.

Meanwhile, Peña and the butterfly center have long pushed for access to the datasets the IBWC and Fisher have been relying on to create their models. Peña has previously said the government’s modeling leaves out several key variables that can make the IBWC’s conclusions unreliable.

In May, U.S. District Judge Randy Crane ordered the two sides in the government lawsuit to give Peña the data that the IBWC had used to conclude the wall violated the treaty. But that hadn’t happened by Wednesday’s hearing.

The judge again ordered cross-case cooperation with the butterfly center when he ordered the government, Fisher and Peña to work together to get inspectors out to the site for further study.

“We’re glad that he’s gonna allow us to get some experts in there to inspect and see what’s really going on,” Peña said Wednesday afternoon.

Fisher, too, welcomes visitors to the site. So much so, he wants to be there when it happens, though he said the three sides have not yet agreed when that will be. “I have no problem with people coming out and seeing it. The more people that see it, you can stop all the false sayings that are going,” Fisher said.

That offer extends to President Trump, as well, he said. “I’d love to invite the president down so he can see it firsthand ,and if he’d want to come down firsthand, I’d love to personally show him what we did,” Fisher said.

The three sides are next due in court on Aug. 5.