After a flurry of criticism from landowners, local and federal officials, and even a federal judge, it appears the White House response to the issue of flood control levees left broken by halted border wall construction has finally picked up speed.
One landowner, in particular, now knows for certain when repairs of the broken levees on their land will begin, though the work likely won’t be completed prior to the start of hurricane season on June 1.
In that landowner’s case, it took pressure from a federal judge, who sought to figure out what legal authorities he may have had to order the levee repairs himself, before there was any movement on the issue.
It’s the looming hurricane season which sparked frenzied criticism of the Biden administration’s lack of direction and non-action on the breached levees weeks after President Joe Biden issued a presidential proclamation upon being sworn into office Jan. 20.
The proclamation, which ordered the immediate halt of border wall construction, also ordered the review of the funding streams used to pay for the construction contracts.
The construction moratorium was initially set to last for 60 days, but as that deadline came and went, wall construction sites throughout the Rio Grande Valley remained abandoned.
Speaking about the issue last month, a spokesperson for the U.S. Department of Homeland Security said DHS was continuing to behave as if the moratorium remained in effect, pending receipt of new guidance from Washington.
But that guidance was more than slow in coming. And as the silence from the administration continued to stretch into April, officials from Hidalgo County began to raise the alarm about the broken levees.
The call to arms was soon picked up by federal lawmakers, including U.S. Rep. Vicente Gonzalez, D-McAllen, who on April 28 wrote a letter to the president seeking an audience and demanding the border issues be rectified.
Meanwhile, in federal courts throughout South Texas, the government attorneys who had been tasked with pursuing dozens of land condemnation lawsuits as part of former President Donald Trump’s policy to build the border wall were left without answers on what to do now.
In an exclusive interview with The Monitor, former U.S. Attorney Ryan K. Patrick — a Trump appointee who stepped down at the end of February — detailed in April how the administration failed to provide guidance on the pending lawsuits before the transfer of power and for weeks afterward.
“Even once (new) DHS leadership was in position, there was quite a bit of confusion about what to do about the fence and how to go forward,” Patrick said.
The confusion continued after Patrick stepped down, as prosecutors reiterated in open court that they had yet to receive new marching orders, despite repeated entreaties.
LATEST DEVELOPMENTS
One landowner left tangled in such litigation — Frank Schuster Farms — became one of the voices calling for the administration to address the broken levees during several status conferences in federal court this week.
The government took part of the Schuster Farms’ land in December 2019 and began border wall construction activities soon after. But after the Jan. 20 proclamation, government contractors abandoned the site, leaving the levee running through the farm in a state of disrepair, according to court documents.
The abandoned worksite poses a threat to the safety of people and vehicular traffic, the farm argued.
“Indeed, Defendant’s tenant farmer discovered a migrant in January of 2021 who had fallen into the exposed re-bar and became stuck and suffered serious personal injuries,” stated a motion for injunction the farm filed Tuesday.
But beyond the threat the half-built wall poses to people is the larger flood threat created by the broken levee, Schuster Farms argued.
“The general area around Defendant’s property has been impacted by hurricane flood waters as recently as last summer,” the motion for injunction further reads.
During a status conference on Monday, U.S. District Judge Randy Crane took heed of the concerns — so much so that he wondered what legal authorities he had to order the levee repairs himself, according to the Progress Times, which first reported on the hearing Monday.
To that end, Crane asked attorneys for both Schuster Farms and the federal government to research the law and file briefs that would support such an order if he chose to issue it.
With less than a month before the start of hurricane season, Crane ordered the two sides to return with their findings by Thursday.
However, by the time the lawyers returned Thursday morning, it appeared government attorneys were finally being given guidance on how to move forward. And that communication had come just as they had reached an agreement with Schuster Farms for the levee repairs.
“I’m through two of the four agencies that need to sign off on this,” Assistant U.S. Attorney John A. Smith III said Thursday.
Smith, who oversees all border wall litigation in South Texas, serves as the deputy chief of the civil division for the U.S. Attorney’s Office for the Southern District of Texas.
“I’d like to keep everybody’s feet to the fire while I’ve got everybody thinking about it. I just got out of a meeting with all four agencies involved, so we’ve discussed it. Everybody knows the urgency,” Smith said.
When Crane asked which agencies Smith had been speaking with, the attorney replied the U.S. Army Corps of Engineers, Border Patrol, the Justice Department and the White House.
RESOLUTIONS COMING
Ultimately, the government was able to reach a repair agreement with Schuster Farms.
In a joint stipulation filed Friday, the government has agreed to begin levee repairs within the next 28 days, and will pursue them with haste.
The government contractors “shall actively pursue the aforementioned measures to completion without interruption or delay except in the event of Force Majeure,” the joint stipulation stated.
Meanwhile, repairs have also begun this week at other levee sites throughout the Valley, just days after DHS issued a statement pledging to repair the damaged flood control levee system.
Hidalgo County announced the commencement of repairs during a news conference held at the site of a levee in Abram on Tuesday.
During the conference, officials also announced the repairs should be completed a lot sooner than anticipated. Whereas the Army Corps of Engineers had initially estimated the repairs could take months, U.S. Rep. Henry Cuellar, D-Mission, said that estimation had been revised to just a few weeks.
Speaking on Thursday of the amount of behind-the-scenes wrangling by government attorneys it took to get answers from the administration, Judge Crane said, “It seems like Mr. Smith thought that even at ‘warp speed, bureaucracy doesn’t work very quick.”
