After nine months of back and forth between the federal government, the National Butterfly Center, and several people involved in the construction of a private border wall south of Mission, trial dates have been set in a pair of lawsuits against the wall builders.
South Dakotan construction magnate Tommy Fisher, along with his companies, Fisher Industries and TGR Construction, are set to go to trial next September in the pair of lawsuits filed by the U.S. Attorney’s Office on behalf of the International Boundary and Water Commission, and by the butterfly center and its executive director, Marianna Treviño Wright.
The setting of a trial date came after the three sides met in federal court Thursday morning for what was one in a slew of status conferences as the cases have lumbered along.
But the conference resulted in more than just a Sept. 7, 2021 trial date. It also revealed how new findings from experts hired by the butterfly center, as well as a burgeoning federal criminal case in New York that involves a former top adviser to President Donald Trump, are affecting the timeline of the civil litigation here.
And for the first time, U.S. District Judge Randy Crane — who has held hearings in tandem in the two cases because of the overlap in the named defendants and in potential discovery material — acknowledged they may be more disparate than he has previously thought.
“I feel like at this point the cases needed to go their own way and I need to resolve jurisdictional issues in this case,” Crane said regarding the butterfly center’s lawsuit.
Crane declined for the time being, however, to issue a ruling as to whether he has jurisdiction over the lawsuit, which was initially filed in state district court before being removed to federal court after the government filed its lawsuit last December.
‘FENCE HAS ALREADY FAILED’
On Wednesday, the butterfly center filed an amended version of its complaint, introducing the conclusions drawn by its experts after an in-person inspection of the private border wall last month.
The center submitted a 58-page geotechnical analysis conducted by Millennium Engineers Group Inc. of the structure, the land surrounding it, as well as the banks of the Rio Grande. It also submitted an affidavit by Dr. Mark Tompkins, a geomorphologist who testified on behalf of the center in January.
Tompkins warned during his testimony then that predictive modeling produced by Fisher Industries for the IBWC was flawed and left out key variables needed to predict how the wall would perform under real-world stresses.
He also testified that, despite the data’s shortcomings, there were indications the wall would fail.
In a seven-page affidavit submitted Wednesday as part of the butterfly center’s amended complaint, Tompkins alleges the wall has already failed.
“In fact, based on my understanding of the foundation depth of the fence and photographs of erosion and scour undermining that foundation, the private bollard fence has already failed,” the affidavit reads.
“That is, the fence caused unnatural erosion and scour that created topographic conditions along the fence that were not assumed or addressed in the design analyses or documents,” it further reads.
Earlier this summer, Fisher scoffed at allegations the wall was unsound or that erosion threatened its structural integrity.
“It’s not failing. There’s erosion that happens everywhere, okay?” Fisher said in July, several weeks prior to Hurricane Hanna making landfall.
“We’ve seen what the biggest rains that they can bring us, okay? So, bring on even more rain,” he said.
Messages left with Fisher seeking comment on the butterfly center’s new findings were not immediately returned.
However, the magnitude of that erosion was not lost on the federal attorneys pursuing their own case against the wall builders, which alleges the wall puts the United States in violation of a 1970 international boundary treaty with Mexico.
Nor was it lost on the judge, who acknowledged Thursday he had been providing such generous leeway in resetting hearings because the potential severity of issues facing the wall had been downplayed for months.
“We did indeed get to go out and take a look at the severe erosion that had occurred immediately after the hurricane,” Assistant U.S. Attorney Eric Paxton Warner said, referring to the August site inspection.
Warner added that he and Fisher’s attorney, Mark Courtois, have been in continuing negotiations regarding resolving areas of concern along the fence which the IBWC concluded in March do violate the boundary treaty.
The government is awaiting new predictive modeling from Fisher that aims to resolve those issues before it can potentially reach a settlement with the defendants, Warner said.
“We need to be sure that the fixes that Mr. Fisher puts in place are going to actually work because we’re dealing with an international treaty and an international boundary,” Warner said.
Courtois minimized the severity of the concerns, saying his client has addressed the erosion and site maintenance issues. “We think we addressed the deflection issue and we’ll be giving a report to the IBWC here hopefully within the next week,” Courtois said.
But a few moments later, a skeptical Crane lightly chastised the two sides.
“You all have led me to believe for many months that you all were very close to resolving the case. That’s why I was always glad to postpone these hearings, always at your request,” Crane said.
He said he also denied the government’s request for an injunction to permanently halt construction because “of a lack of proof” of harm at the time.
“Now that the wall has been built, perhaps the proof issues are different, especially… if the integrity of the wall is such that it now creates some problems with the international treaty,” Crane said.
For Javier Peña, the attorney representing the butterfly center in its suit against the wall builders, that admission was huge.
“I think the judge is starting to see the picture we’ve been trying to paint for a while,” Peña said after the hearing.
He also commended the government’s attorneys for “taking a stronger stance” in their own suit.
“The admission that the erosion was severe, I think that’s a big deal,” Peña said.
Peña’s client, Marianna Treviño Wright, however, was critical of why it’s taken the government this long to become as alarmed about the eroding river bank as she has been.
“That’s because the IBWC was never really going to fight this. It’s exactly what I’ve been telling all of you from the beginning,” Treviño Wright said after the hearing.
Though the butterfly center was granted access to the wall last month, in part, because the government’s attorneys had requested access to conduct its own site inspection, the only engineers and inspectors to survey the site that day were those hired by the butterfly center.
By contrast, Warner and another man were the sole government representatives present during the inspection — a fact Treviño Wright says calls into question the government’s determination to fight its case.
“I’d like to know why they’ve been sitting on their thumbs,” Treviño Wright said.
In court on Thursday, Warner said the government is still entertaining the thought of retaining outside consultants to analyze potential issues.
“The government intends to hire a geotech engineer to go out there and look at it, as well as possibly a structural engineer,” Warner said.
“It is possible that the United States will also hire a hydrologist separate and apart from the IBWC employees,” he added.
Then there’s concerns the IBWC’s counterparts in Mexico may have. According to the terms of the treaty, any riverside development must be approved by both nations. Thus far, however, communication with La Comisión Internacional de Límites y Agua has been scant.
“We do know that the Mexican side of the IBWC is concerned,” Warner said in court.
Warner was likely referring to a letter CILA sent its American counterparts this spring which noted several preliminary areas of concern.
In an April 7 internal email exchange between IBWC engineers and attorneys, Acting Principal Engineer Wayne Belzer summarized the Mexican concerns, saying CILA was worried sections of the wall “may resist flood flows as they are angled sharply to the river. The wall may collect debris and dislodge and become debris … (and the) Process is not in line with (the) 1970 water treaty.”
But CILA has not responded since.
“Since we’ve sent the modeling, as I informed the court at the last hearing … we have not received any formal objections based on the modeling, which would be how the treaty works,” Warner said.
Crane also brought up concerns regarding the transfer of ownership of land between the original landowners, Neuhaus and Sons, and Fisher.
“Why is it taking so long to finalize the sale of this property?” Crane asked Nuehaus attorney Lance Kirby.
Kirby replied that surveys of the land have yet to be completed, and that under the terms of the lease agreement, Fisher still maintains right of access to the land.
Speaking during a media tour of the site in January, Fisher said his company had entered into a lease/purchase agreement with Neuhaus for just a strip of land — from the riverbank to 15 feet landward of the fence’s lighting system.
“We’re gonna take a string line off these poles 15 feet, draw the line, and that’s gonna be my line,” Fisher said.
But county records show the land has not yet been subdivided. In 2019, the Hidalgo County Appraisal District classified the whole of the 638-acre property as agricultural land and appraised its value at just $277,047.
Earlier this year, however, the district reclassified the property as commercial based on the then still under construction border wall.
In a letter the district sent to Neuhaus in January, the appraisal district notified the landowner it was valuing the improvements at $16 million per mile. As a result of the reclassification and improvements, the district had revalued the entirety of the property at nearly $20.3 million. The taxes due on the property now stand at nearly $435,000.
FRAUD CASE IMPACTS
From the beginning, the butterfly center has alleged that the entire project is part and parcel of a conspiracy by the wall builders and their codefendants to leverage racism and xenophobia for personal profit — both through the direct fundraising efforts of We Build the Wall, and via Fisher’s securement of billions of dollars in federal wall building contracts subsequent to building the Mission wall.
“I think everyone is starting to get a clearer picture of how much of a farce this private fence is,” Peña said.
“Right now, I think it’s pretty clear that there’s a conspiracy. The government believes there’s a conspiracy. The government now is also happy to admit that this wall does not work,” Peña said of the criminal and civil proceedings.
Those allegations are now supported, he said, by a criminal indictment against We Build the Wall founder, Brian Kolfage, as well as former presidential advisor Steve Bannon, which was unsealed in New York federal court late last month.
There, federal prosecutors allege that Kolfage, Bannon and two other men conspired together to defraud private donors who gave millions to We Build the Wall for the construction of the private border wall.
As part of the indictment, the government has frozen nearly a dozen bank accounts associated with the men and WBTW. And it’s that action that has now affected the civil cases in the Rio Grande Valley.
“Given the uncertainty and turmoil my clients are going through right now with the recent arrest of a couple of board members, we would prefer that no scheduling order be … (issued) for at least 30 days so that we can figure out what’s going to happen going forward,” said David Oliveira, the attorney representing We Build the Wall.
“It’s my understanding that the U.S. Attorney has ordered the board members not to remove any of the funds from We Build the Wall, so obviously, that affects our defense going forward,” he added, saying he has not been paid for his services.
For the judge, however, the concerns extend beyond whether WBTW has the cash liquidity to pay its legal bills. It also extends to how Kolfage’s Fifth Amendment rights in the criminal proceedings will affect his ability to participate in the civil lawsuit.
As Peña explained it, though a defendant may invoke the Fifth Amendment in a civil proceeding, doing so may not afford them the same presumptions of innocence.
Unlike in a criminal case, “your assertion of your Fifth Amendment rights in a civil case can be presented to a jury and can be used to imply wrongdoing,” Peña said.
As a result, Crane conceded to Oliveira’s request, asking the butterfly center to withhold making any discovery requests of Kolfage or WBTW for at least 30 days.
The parties are scheduled to meet for another status conference Dec. 10.
CORRECTION: This article has been updated to correct the description of the Neuhaus & Sons property, as well as new property tax valuations which resulted from the construction of a private border wall there. The two parcels of land total just over 638 acres, and their combined taxable valuations increased from $272,047 in 2019 to $20,296,347 in 2020.