As two civil lawsuits against a group of private border wall builders continue to drag on in federal court, questions have arisen over who will ultimately control the land and the 3-mile long bollard fence that was constructed on it earlier this year.
The fence, which was built mere feet from the banks of the Rio Grande by North Dakotan construction magnate Tommy Fisher, has been a source of controversy since last December, when both the federal government and the National Butterfly Center filed suits against Fisher and his companies, landowners Neuhaus and Sons, and Brian Kolfage and his fundraising nonprofit, We Build the Wall.
Fisher has touted the wall as a prototype not only for border wall construction methodology, but also for border wall placement — so near the river he claims it more effectively deters human and drug trafficking compared to the government’s own wall, which can be located more than a mile from the riverbank.
Fisher claimed he could build the wall better, faster and cheaper than the government and has often insisted that border agents love the structure. But it’s precisely that proximity to the riverbank that sparked the two lawsuits last year.
The government, on behalf of the International Boundary and Water Commission, sued Fisher, alleging the wall could put the United States in violation of a 1970 boundary treaty with Mexico — a conclusion the IBWC later confirmed in a finding this April.
Since the international boundary between the two nations is defined by the centerline of the river, all development within the floodplain of the Rio Grande must be approved by the IBWC and its Mexican counterpart, La Comisión Internacional de Límites y Agua (CILA). Development cannot cause a change in the course or flow of the river.
In their suit, the butterfly center alleges that the proximity of Fisher’s wall to the water would do just that — to the point where erosion and debris buildup during flooding would negatively impact the center’s property, which lies adjacent to the Neuhaus site.
But more than a year after the lawsuits were filed, the three sides are still no closer to a resolution, even after yet another status conference Thursday morning.
While the government has thus far taken a posture of seeking settlement without trial, its case has been hampered by numerous delays, from producing and analyzing the predictive hydrologic modeling that could show the structure to be within the IBWC’s development tolerances, to the COVID-19 pandemic making communication with CILA almost nonexistent.
Meanwhile, the butterfly center’s lawsuit has remained tethered to the government’s case after U.S. District Judge Randy Crane decided, in the interest of efficiency, to hold hearings in the two suits simultaneously.
As a result, the butterfly center’s motion to remand their lawsuit back to state district court, where it was originally filed, has remained stalled while progress in the government’s case inches along.
The center was hopeful Crane would resolve the jurisdictional issue Thursday after he had indicated in September that the two lawsuits may have come to a crossroads. But that didn’t happen.
Instead, Crane declined to make a jurisdictional determination. He also declined to make a ruling on the defendants’ motion to dismiss the center’s case.
Speaking after the hearing, David Oliveira, the attorney representing We Build the Wall in the butterfly center’s suit, said the judge’s decision on the two motions didn’t surprise him.
“They’re ready to be heard, but I understand. He’s gonna give the plaintiff every opportunity to prove their case and it’s not uncommon for a judge to do that,” Oliveira said.
Though the federal government originally named We Build the Wall and its founder, Brian Kolfage, as defendants in its lawsuit for their part in partially funding the project, the two were dropped from that litigation last December.
However, WBTW and Kolfage remain defendants in the butterfly center’s suit, though Kolfage has yet to be served with a copy of the lawsuit, according to Javier Peña, the butterfly center’s attorney.
Oliveira declined to comment when asked if he has had contact with Kolfage over the last year.
“All I can tell you is that my client is We Build the Wall,” Oliveira said.
“We remain optimistic that at the end of the day, the case against our client will be dismissed,” he added a moment later.
For Marianna Treviño-Wright, executive director of the butterfly center, the court delays come with one benefit: they serve to bolster her allegations that the wall builders are dishonest and are part of an ongoing criminal conspiracy.
“I’m quite pleased with today’s status hearing, and I am especially pleased that the judge appears to be catching on to the fact that he has been lied to and misled by the defendants,” Treviño Wright said after the hearing.
Peña echoed those sentiments.
“I think the judge is starting to see that they’re not being completely forthright with the court, especially … the land transaction,” Peña said.
The land transaction Peña spoke of became a point of interest during Thursday’s joint conference, particularly during discussions between the government and the defendants.
One of the questions about the 3-mile fence that has remained unanswered since construction began is what the end goal is for the structure.
While Fisher has publicly stated he hopes the fence will serve as a model for future federal border wall construction, he has also said he hopes the government will eventually take over the Mission site.
But other than stating that border agents have an affinity for the structure, Fisher’s attorneys have not represented in court that the government will take ownership of the structure — until Thursday.
Crane openly wondered about the utility of the wall, which he called “redundant” since construction of the federally owned border wall has already commenced less than half a mile from the Fisher wall.
Fisher’s attorney, Mark Courtois, insisted that Border Patrol has been making use of the structure and that the government has expressed interest in owning it.
“There have been discussions along those lines and we expect that the government is going to be the best owner in the future,” Courtois said when the judge asked if there have been discussions about Fisher donating or deeding the wall to the government.
That assertion seemed to surprise Assistant U.S. Attorney Eric Paxton Warner, who said the IBWC is not aware of any such plans.
“For the record, your honor, we are not aware — we being the U.S. IBWC — are not aware of any plans at this point that would transfer the fence to the government,” Warner said. “As far as we’re concerned, the land is owned by Mr. Neuhaus (and) leased by Mr. Fisher at this point.”
But therein lay another issue: who owns what.
In January, Fisher testified that he had entered into a lease-purchase agreement with Neuhaus and Sons for just a strip of the land — from the riverbank to 15 feet inland from the security lighting that parallels the wall.
That transfer of ownership has yet to be finalized, however — a fact the judge keyed in on.
“Why the delay? It’s been over a year,” Crane said, adding that he had repeatedly been assured a few formalities were all that remained to close the deal.
“Fisher keeps telling us that they’re having problems with the survey and that it’s been a really problematic survey,” said Lance Kirby, attorney for Neuhaus and Sons.
“We’re ready, willing and able to convey the property as soon as Fisher is ready to take it,” he added.
However, a comment from Courtois indicated there’s more behind the delay than mere land surveying.
“There’s some accounting issues that we’re working out on our side, and some tax issues. And those are some of the considerations that we’re trying to work through before we do this,” Courtois said.
The land was not subdivided prior to the start of construction. As a result, the valuation for the entirety of the two parcels that make up the site — some 638 acres — has risen precipitously.
“The real issue is that Tommy Fisher doesn’t intend to ever buy this land or pay the tax bill,” Treviño Wright speculated after the hearing
Hidalgo County property tax records show the two parcels are still owned solely by Neuhaus and Sons, and list the border wall as an improvement that has added just over $20 million of taxable value to the farmland.
In short, the border wall has increased the taxable value of the farmland by more than 7,500%.
“Those of us that have seen the county filings know what’s going on. They’re trying to figure out who’s going to be liable for the tax bill,” Peña said.
For the attorney and his client, the lingering questions over the property’s ownership, combined with the large-scale erosion the site has suffered since construction was completed this spring, are all evidence the defendants were in a poorly planned rush to complete an ill-fated project.
“I think not subdividing first is a very good sign that what we’ve been saying all along is true — they just did not have a plan at all,” Peña said, adding that the project has undergone several redesigns post-construction, including the shoring up of the eroded riverbank with fresh dirt and stones.
“The next thing we’re gonna see is them putting Flex Seal over the banks of the Rio Grande River to keep it from eroding,” Peña said incredulously.
Experts hired by the butterfly center to examine the structure in August concluded the wall is unsound and that the erosion has already caused it to fail.
Fisher roundly refuted that, maintaining that some erosion was always part of his plan. The erosion has allowed him to see where the construction needed to be fortified with “rip-rap” — small stones normally used to line canals, he said this summer.
But in court, Courtois remained optimistic about the site eventually becoming government property — perhaps as soon as the end of this year or the first quarter of 2021 — and potentially without Fisher ever holding the deed.
“This may go straight from Neuhaus title to government title?” Judge Crane asked.
“That is one possibility, yes,” Courtois replied.
The answer appeared to quietly shock the judge.
“Wow, okay,” Crane said.
But reached for comment after the hearing, a spokesperson for U.S. Customs and Border Protection sought to distance the agency from the issues surrounding the Fisher border wall.
“That is a private wall on private property that’s privately paid for,” said CBP Public Affairs Officer Thomas Gresback.
“We do not have anything to do with that project,” he said.
Gresback also noted that, unlike the Fisher wall, none of CBP’s own wall construction is located within the floodplain.
“CBP is currently executing its RGV-03 project, outside of the flood plain, approximately 0.3 miles North from the privately constructed project in Mission,” he said.
Citing the ongoing lawsuit, however, Gresback declined to comment further when asked about a November 2019 internal CBP memo obtained by The Nation in August.
The memo, which was signed by then-DHS Deputy Assistant Secretary for Counterterrorism Ntina Cooper, appears to show that CBP was amenable to receiving a donation of a similar private border wall funded by We Build the Wall and built by Fisher Industries in Sunland Park, New Mexico.
Neither Tommy Fisher nor his attorney responded to messages seeking comment for this story.
With the judge choosing not to make a jurisdictional determination Thursday, the butterfly center’s lawsuit remains tied to the IBWC’s case.
Government attorneys again requested more time to obtain and evaluate a new set of predictive modeling that Fisher claims resolves an area along the fence the IBWC found put the structure in violation of the 1970 treaty.
In his case, Peña said he continues to work on finalizing a motion for a protective order and narrowing the scope of discovery requests from the defendants.
To that end, Oliveira requested to be temporarily excluded from discovery requests since he is currently not being paid for his services.
“We still haven’t resolved the issue of the forfeiture in New York,” Oliveira said, referencing an ongoing criminal case against WBTW founder Brian Kolfage.
In August, Kolfage and others were indicted by a New York grand jury for fraud and money laundering in connection with the Mission border wall project.
Former presidential advisor Steve Bannon — who also served as advisory board chair for We Build the Wall — was also named as a defendant, as were Andrew Badolato and Timothy Shea.
Federal authorities also froze any assets associated with WBTW when the indictment was unsealed. That has, in turn, affected Oliveira’s ability to continue his representation in the civil case here.
“We Build the Wall’s funds have been seized and we are working with them to get some of those funds released,” Oliveira said in court.
While Peña was sympathetic to the situation, he said that progress in his client’s lawsuit can’t be forestalled indefinitely.
“Most lawyers, if you’ve been practicing long enough, have found yourself in a situation similar to his… but ultimately, our case can’t be held up because of their situation,” Peña said after the hearing.
The next status conference is slated for March 3.