The National Butterfly Center is dropping a portion of a lawsuit it filed against the builders of a private border wall south of Mission.
The announcement comes more than two years after the suit was filed, and follows a separate announcement that the center will be closing its doors indefinitely due to repeated threats.
“We are doing this because Judge (Randy) Crane has made clear his intention to dismiss our lawsuit and we cannot risk him doing that with prejudice for any current or future claims,” the center’s executive director, Marianna Treviño Wright, said Wednesday.
“We must preserve our right to sue the perpetrators of this project for the land loss and physical damage we will suffer in the next significant flood event,” she said.
While the center is halting its efforts in federal court, it will continue to pursue separate defamation allegations in state court.
BACKGROUND
In December 2019, the butterfly center’s parent organization, the North American Butterfly Association, sued several defendants involved in the construction of a private border wall along the Rio Grande south of Mission.
Those defendants included: construction magnate Tommy Fisher and his companies; Iraq War veteran Brian Kolfage and his fundraising nonprofit, We Build the Wall; and landowners Neuhaus and Sons.
The center alleged that the structure — which had not been built at the time of the original filing — posed a “prospective nuisance” to the center’s 100-acre butterfly preserve, which lies adjacent to the Neuhaus land.
The center further alleged that the group had defamed Treviño Wright after Kolfage engaged in a social media campaign accusing the executive director of participating in child sex trafficking.
The center originally filed its lawsuit in state district court, but the case soon went before Crane, the federal judge, after the defendants claimed iit involved federal issues.
There, Crane has also been presiding over a separate lawsuit the federal government filed against the private wall builders.
The government — on behalf of the International Boundary and Water Commission — also sued, alleging the private wall put the United States in violation of a 1970 international boundary treaty with Mexico.
Over the last two years, Crane has held nearly every hearing in tandem and delayed making a decision over whether he has jurisdiction to hear the butterfly center’s claims until just last month.
In a ruling handed down Jan. 13, Crane remanded the defamation portion of the lawsuit back to state district court while he retained jurisdiction on the property rights issues.
Crane cited the treaty as the reason he was retaining control of that portion of the lawsuit, arguing that the injunctive relief — which could include ordering the alteration or removal of the wall — would implicate the treaty and require federal oversight.
MOTION TO DISMISS
It’s that portion of the lawsuit that the butterfly center has chosen to drop.
“The judge basically gave a roadmap to the other side about how to get the case dismissed, so after a long conversation with my clients, we decided just to drop it,” Javier Peña, the Edinburg attorney representing the butterfly center, explained Wednesday.
Peña referred to a litany of decisions Crane has made over the last two years that has caused him and his clients to scratch their heads.
Aside from splitting his decision on jurisdiction, Crane has also suggested the center drop the landowners as defendants, even though the lawsuit claims they were participants — by association — to the defamation.
Crane also recognized former Kansas Secretary of State Kris Kobach as “counsel not of record” for We Build the Wall, a legal designation that does not actually exist.
This was during a monthslong effort by We Build the Wall’s former lawyers to withdraw their services because they had gone unpaid for a year.
Crane has also repeatedly suggested the center obtain an engineering report produced by the government as part of its lawsuit against Fisher from the man who is a defendant in both suits and whose interests lie in withholding such information.
“Rather than instructing the defendants to comply with discovery in our case and provide to us the government’s engineering inspection report of the Bannon/Fisher/Neuhaus wall, Judge Crane instructed us to do a reach around,” Treviño Wright said.
The executive director is not the only one who thinks Crane’s decisions have failed the sniff test.
“There’s something not good going on here, and exactly what it is, I don’t know. … But, I’m telling you, looking from the outside, it doesn’t look like fresh produce,” said Dr. Jeffrey Glassberg, president and founder of NABA.
Treviño Wright aimed her criticisms directly at the judge.
“(Crane) has put our suit behind the interests of the government and beneath the interests of the government, which at this point includes concealing evidence,” she said.
A message seeking comment from the judge went unreturned as of press time Wednesday, though it should be noted that judges are prohibited from publicly commenting on pending cases.
While Treviño Wright thinks Crane, the government attorneys and the Fisher defendants have been working in concert to quash the center’s lawsuit and to conceal the government’s findings about the wall from the public, Peña is more circumspect.
Crane couldn’t make any direct decisions on what evidence the defendants must hand over — something called “discovery” — because the butterfly center never filed a motion to compel such discovery.
However, Peña agrees with his clients that questions remain regarding the government’s attorneys.
“Speaking to Paxton, yeah, they are without a doubt concealing evidence — against the rules of evidence, against everything. They’ve got no justifiable legal reason to request that a third party withhold those documents, but they’re doing it,” Peña said, speaking of Assistant U.S. Attorney Eric Paxton Warner, who has led the government’s suit.
Peña confirmed that Warner instructed Fisher’s attorneys to withhold the engineering report the government had tasked engineering firm Arcadis to produce.
Though the federal lawsuit is now over for the butterfly center, it will continue to pursue its defamation claims in state court.
“There is clear evidence that there was a conspiracy amongst the different defendants to defame the butterfly center and Marianna in an effort to raise money,” Peña said.
CLOSED INDEFINITELY
Meanwhile, the social media campaign at the heart of the defamation claims have had long-lasting repercussions for Treviño Wright and the center’s staff.
Days before a far-right fundraising rally was slated to be held in McAllen, a Virginia congressional candidate on Jan. 21 paid a visit to the butterfly center in search of migrants crossing the Rio Grande in “rafts (that) are provided for by the cartel.”
The woman, Kimberly Lowe, allegedly assaulted Treviño Wright by shoving her to the ground when Treviño Wright attempted to stop her from livestreaming false allegations that the executive director condones child sex trafficking.
The center later closed its doors temporarily after receiving credible threats that members of the political “We Stand America” rally were seeking to target Treviño Wright and the center.
Indeed, over the weekend, some of the rally’s attendees posted videos to social media repeating the false allegations that child sex trafficking occurs on the property — allegations first spread by Kolfage in his bid to drum up funding.
On Wednesday, the NABA board of directors announced they would be continuing the closure for the foreseeable future due to concerns over staff and visitor safety.
“We are in the process of seeking advice in terms of security and other matters about what is the best way to proceed primarily for the safety of our staff and visitors,” Glassberg said.
“Those same disgusting under-slime of the population are active here again. People have died in these other events and we want to avoid that for everybody’s sake,” Glassberg said.
Glassberg was referring to the 2019 El Paso Walmart massacre and the 2020 Tree of Life Synagogue mass shooting in Pittsburgh.
Both of the shooters in those events were later discovered to be white supremacists who believed anti-immigrant ideologies. Both believed far-right extremist conspiracy theories that Latino and Central American migrants are “invading” the United States for the purpose of replacing Americans.
To see more photos of the National Butterfly Center in Mission, view Monitor photojournalist Joel Martinez’s full photo gallery here:
