“Never in my 22 years of practicing law.”
That was the reaction of Edinburg attorney Javier Peña shortly after attending a status conference in McAllen federal court Wednesday for a lawsuit he has been attempting to litigate on behalf of the National Butterfly Center for the past two years.
“Attempting to litigate” because the lawsuit has remained at a standstill ever since it was transferred to federal court from the 398th state District Court where it was originally filed in December 2019.
Since then, despite generating a series of novel legal issues that Peña has previously said would make for a great case study for law students, the suit has remained stymied by one fundamental question: Does the federal court have jurisdiction to hear the case in the first place?
It’s a question that typically receives an answer early on in the litigation process because nearly nothing else can take place until that answer is determined.
Yet, nearly two years to the day since the butterfly center sued a cadre of defendants involved in the construction of a 3-mile stretch of private border wall along the banks of the Rio Grande just south of Mission, that question remains unanswered.
It got no answer Wednesday.
Nor did it receive an answer during a hearing held two months ago, nor in any of the dozen others held before U.S. District Judge Randy Crane since 2019.
During that span of time, however, Crane has made decisions that have affected the plaintiffs, the defendants and the land at the center of the suit — including holding those status conferences in tandem with a separate lawsuit filed by the federal government, as well as prohibiting the butterfly center from conducting discovery on some defendants for a year.
But it was the result of one particular decision — Crane’s January 2020 order dissolving the TRO which a state district judge had granted on Dec. 3, 2019 — that left Peña confounded after Wednesday morning’s status conference.
THE BEFORE
When the butterfly center filed its suit against North Dakota construction magnate Tommy Fisher, his companies, and others, the land in question contained nothing more than tidy rows of sugarcane that sprawled toward where the Rio Grande’s murky waters lapped at thatches of carrizo cane.
The butterfly center alleged that the wall’s construction would impinge upon its property rights by causing erosion that would affect the center’s nature preserve just west of the U-shaped bend where the wall was to be erected.
At the time, Fisher’s crews had begun to clear the carrizo and to artificially grade the riverbank. They had also begun the prep work for laying the wall’s rebar-reinforced concrete foundation. The TRO put a halt to the work, but when the judge dissolved the TRO the following month, construction quickly resumed.
By March 2020, scores of galvanized steel bollards glittered along the riverbank and Fisher was touting the wall as a new, cheaper way to achieve border security.
Just a few months later, however, large chunks of bare earth had been gouged away from the riverbank by rainstorms and Hurricane Hanna.
The erosion served as proof positive for Marianna Treviño Wright, executive director of the butterfly center, of assertions she had made since the beginning — that the structure was a liability. That it would alter the riverbank and cause damage.
THE AFTER
The butterfly center’s lawsuit had originally sought to keep that damage from happening, but with the wall up, its new goal is to get it taken down.
However, that presented a problem for the judge during Wednesday’s hearing — one that dovetailed into why he has yet to determine whether he has jurisdiction to preside over the lawsuit.
“This is a very complicated jurisdictional matter to the court,” Crane said.
“One of the things that has concerned the court is the injunctive relief that would occur if there was a nuisance finding, how that would affect — that that would have some effect on the wall… and that any effect on that fence is going to implicate the treaty, because it may affect the water flow,” he said.
In Texas, the U.S.-Mexico border is defined as the centerline of the Rio Grande as outlined by a 1970 international boundary treaty between the two nations.
The treaty spells out that that boundary can shift if the course or flow of the river changes. As a result, any development in the river’s floodplain — on either side of the border — is regulated by the International Boundary and Water Commission and its Mexican counterpart, la Comisión International de Limites y Agua.
That treaty lies at the heart of the federal government’s separate lawsuit against Fisher and the other defendants. And in April, hydrological experts with the IBWC determined the private border wall does violate the treaty.
Since then, Fisher has been in talks with the government over how to mitigate the issues and perhaps come to a settlement agreement in that lawsuit.
But in the butterfly center’s case, the concern isn’t over international treaties, it’s over the center’s adjacent property.
THE STATUS QUO
In court, Peña asserted that Fisher’s wall has already altered the shoreline, buttressing the center’s argument that the land needs to be reverted to its original state.
“I think removing the wall would alleviate the treaty issues, not implicate treaty issues,” he said.
“I mean, you say that, but I think any change in the status quo — again, I’m not an expert — but it might affect something, the flow, the flood condition,” Crane responded.
And it was that statement from the judge that so confounded Peña afterward — what he had never before seen in his two decades as a litigator.
“That’s not the way status quo works. Status quo goes back to the last uncontested position, which is there is no wall, which is why the government and we had injunctions to prevent it from going up,” Peña said.
“The court allowing it to go up changed the status quo. Now he’s saying, well, this is a new status quo, which is not the way these cases are typically analyzed,” he said.
Crane’s January 2020 decision to dissolve the butterfly center’s TRO and to deny both their and the government’s motions for an injunction is what ultimately allowed Fisher to complete the wall’s construction.
That, in turn, led to the erosion of the shoreline and created the treaty conflicts that the government had sought to prevent in its parallel lawsuit against the wall.
Now, it appears Crane is attempting to use the shoreline’s new, altered condition as the status quo, or baseline for which all other decisions must be weighed against — including determining jurisdiction.
“I just feel like … (the) nuisance causes of action don’t implicate, or can stand alone, separate from the treaty. It’s the remedy, though, it’s so interwoven with the treaty that I just don’t know how to get around that…” Crane said in court, referring to the potential for a judgment that would require the wall’s removal.
“The court is granting itself jurisdiction by its own actions. It’s sua sponte creating a situation where it has jurisdiction,” Peña said afterward.
“It’s such a cluster, whirlwind, backwards argument that, you know, it’s kind of hard to work through. The clients and I had to talk through it. It’s like, this makes no sense,” he said.
The judge also wondered who would bear the responsibility for determining such injunctive relief if the butterfly center prevails in its lawsuit. Him? A jury? Some undefined panel of government and treaty experts?
With those questions in mind, Crane wondered aloud if the government itself would need to be drawn in as a participant to the butterfly center’s suit, as well.
As the nearly half-hour long conference drew to a close, the judge made plans to hold another in mid-January. Court records show he set a similar status conference in the government’s lawsuit against Fisher for the same day.
Meanwhile, commenting after the hearing, Treviño Wright, the butterfly center’s executive director, intimated there may soon be a new twist in the center’s battle against the border wall.
“We have been contacted by another federal agency,” Treviño Wright said.
“They have come to visit and see for themselves the new riverbank, and the Fisher, Neuhaus, We Build the Wall structure. And I’m speculating here, but I believe they also intend to take legal action against this project that has done so much damage — environmental and otherwise,” she said.
