A year-and-a-half into a federal lawsuit against the builders of a stretch of private border wall south of Mission, the government has finally hired a firm to determine if the structure puts the United States in violation of an international boundary treaty with Mexico.
The news came Wednesday morning during a status conference between government attorneys representing the International Boundary and Water Commission, the wall builders, and the North American Butterfly Association, which is pursuing a separate lawsuit against the wall builders.
The news also comes more than a year after IBWC hydrology experts determined that the 3-mile stretch of galvanized steel bollard fencing — constructed along the bank of the Rio Grande by South Dakota construction magnate Tommy Fisher — did indeed violate the treaty when it was originally constructed.
“The last time we were with the court, I told the court that we were in the process of trying to hire an expert” to examine the structure, Assistant U.S. Attorney Eric Paxton Warner said.
Warner explained the scope of that analysis was so broad that the hiring of a firm to conduct the analyses needed approval from Department of Justice officials in Washington.
“That took some time, but on April 7, we received approval to move forward with our experts,” Warner said, explaining the government had retained the services of global engineering firm, Arcadis.
The company visited the site to conduct a preliminary analysis and gather samples just last week, Warner said.
In December 2019, the government filed a lawsuit on behalf of the International Boundary and Water Commission against Fisher and his companies, collectively known as Fisher Industries.
The government also named Neuhaus and Sons — who at the time owned the peninsula of land where Fisher built his wall — as well as Brian Kolfage and his fundraising nonprofit, We Build the Wall, as defendants.
Both Kolfage and WBTW were dropped from the suit early on, however, after they successfully argued the nonprofit’s financial contributions to the project were minimal.
Initially, the government sought an injunction to halt construction of the wall, claiming the structure would put the U.S. in violation of the international boundary treaty with Mexico by potentially changing the flow or course of the river.
The judge presiding over the case, U.S. District Judge Randy Crane, denied that request and construction recommenced soon after. But by April 2020, the IBWC concluded that the now-completed wall would cause enough of a floodwater deflection to violate the treaty.
Fisher has since attempted to mitigate those issues by shoring up erosion hotspots along the riverbank, installing a gravel road and other measures. Arcadis will in part be tasked with determining if those mitigation efforts were successful.
“We need to make sure that the structure is sound. In the butterfly case, your honor, their experts certainly indicated that there might be issues,” Warner said, referring to the separate lawsuit being pursued by the National Butterfly Center.
With a similar slate of defendants named in both suits, the butterfly center’s case was soon moved from state court to the federal court’s superseding jurisdiction. It has since remained in limbo there, with its hearings thus still tied to the government’s suit.
Since late last summer, however, progress in the butterfly center’s lawsuit has also been stymied by a federal criminal case currently pending against Kolfage and Steve Bannon, who was once an adviser to former President Donald Trump.
Federal prosecutors in New York allege Kolfage and Bannon defrauded hundreds of people who donated to We Build the Wall.
While Kolfage admitted during a December 2019 hearing here to contributing more than a million dollars from the fundraising efforts to the Fisher wall project, the New York prosecutors allege far more money went to line the pockets of Kolfage, Bannon and their co-conspirators.
As part of the criminal investigation, We Build the Wall’s assets have been frozen, leaving their attorneys shorted on legal fees — including David Oliveira, who has been representing Kolfage and WBTW in the civil litigation locally.
Unwilling to essentially make an attorney work for free, Judge Crane has ordered any efforts to conduct discovery on Oliveira’s clients to remain on hold since the fall.
He reiterated that order Wednesday.
That poses huge logistical frustrations for the butterfly center and its attorney, Javier Peña, who explained the order’s ramifications to his clients’ case.
“It really puts a hamper on our ability to do discovery. Effectively, we are limited to paper discovery with two defendants,” Peña said.
“We can’t do depositions because we can’t use those depositions at trial unless all parties are able to attend those depositions.”
While Peña was disconcerted with the discovery limitations, he was nonetheless heartened by some of the government’s commentary.
“I’m glad they’re finally realizing what’s really going on, and at least it’s starting to appear that they’re trying to follow the law or enforce the law,” Peña said.
Since the start, both Peña and the center’s executive director, Marianna Treviño Wright, have alleged the private wall building project was a get-rich-quick scheme concocted by the defendants.
The New York criminal case, along with the massive erosion seen at the site after Hurricane Hanna last summer, help prove the butterfly center’s allegations, they say.
But over the course of the lawsuits, the attorney and his client have expressed repeated frustrations from their sense that the government was seemingly not taking its own lawsuit seriously — until now.
“Honestly, I was gobsmacked today, as I believe Judge Crane was, specifically by the change in attitude, performance and speech coming from the U.S. Attorneys representing the IBWC,” Treviño Wright said after the hearing.
“I think that set a tone and turned this boat 180 degrees,” she said, referring to the judge whom she has similarly criticized as behaving in a partisan fashion in the two lawsuits.
“Just because (Crane) is now turning around and listening to Paxton (Warner) say the same things that we have said for a year-and-a-half, that’s not going to change my opinion of him. He is supposed to be fair and impartial,” Treviño Wright said.
For his part, Crane — who has been exceedingly generous in granting multiple requests for time in the two cases — seemed just as excited as the plaintiffs about the glimmer of forward progress.
“It seems like this case has finally caught its second wind and is moving forward again, so I’m happy to see all that and progress is occurring,” Crane said.
“The court was very pleased to hear that there really is a lot of work being done on this case to figure out whether the wall is going to remain, whether it needs to be removed, whether it needs to be remediated,” he added later.
Optimism aside, the three sides are not set to meet in court again until August, at the earliest.