Last week marked the end of a more than two-year dispute between the federal government and the builders of a private border wall that went up just feet from the banks of the Rio Grande in 2020.
Last Tuesday, attorneys with the Justice Department filed a notice of stipulation in McAllen federal court indicating the end of litigation against Tommy Fisher, a construction company CEO and right-wing media darling who built the 3-mile wall.
The two sides had reached an agreement, terms of which were outlined in a 34-page settlement that was released later that day.
For Sally Spener, secretary to the International Boundary and Water Commission, the settlement terms are sufficient to safeguard the country’s compliance with the 1970 international boundary treaty between the United States and Mexico that had originally sparked concerns and prompted the lawsuit.
“The settlement agreement has addressed the concerns so that they (Fisher and TGR Construction) will take actions so that we’re able to meet our obligations under the treaty,” she said.
SKEPTICS SPEAK OUT
But not everyone is convinced that the mitigation procedures outlined in the settlement do anything to resolve the issues that prompted the IBWC’s lawsuit in the first place.
Marianna Treviño Wright, executive director of the National Butterfly Center, whose 100-acre nature preserve is located adjacent to the Fisher wall, remains highly skeptical of the mitigation efforts the IBWC has signed off on.
“You’ve been following this for years and speaking with me since the beginning. I think I told you this is exactly how it would all go down from day one,” Treviño Wright said during an interview with The Monitor last week.
“So when this bollard goes floating downstream toward Anzalduas Dam — which the government even admits is likely in their second amended complaint — what’s the plan downstream?” Treviño Wright said with an angry note of defeat.
She was referring to the government’s acknowledgement of severe erosion at the site that, “could result in the collapse of the structure … as well as harming United States … including the Anzalduas International Dam,” according to the August 2021 second amended complaint.
At least one former government official agrees with Treviño-Wright’s assessment of the wall’s dangers.
“My position the whole time, legally and just personally, was this is a dumb place to build the wall,” Ryan K. Patrick, former U.S. Attorney for the Southern District of Texas, told The Monitor on Sunday.
“For one, it violates the law, and, two, logistically, it’s stupid,” Patrick said of the wall, which he referred to as “a vanity project.”
Patrick spoke of the concerns both he and Jayne Harkins, then the IBWC commissioner, had in 2019 about Fisher’s plans — especially when construction of federal border wall was set to begin just a few hundred meters north of the Fisher site.
The former U.S. Attorney — who left office in February 2021 as part of the transfer of power — said he and other federal officials shared many concerns about the wall.
They worried about its physical stability and the personal safety of border agents tasked with patrolling the river.
“Within months, all of our suspicions were correct,” Patrick said.
The only thing Tommy Fisher and his companies shared with the IBWC prior to construction was a four-page PowerPoint presentation that Patrick characterized as “a joke.”
“That thing was just a mess. It was an albatross,” Patrick said of the Fisher wall.
Patrick was so concerned over Fisher’s “vanity project” that he took the unusual step of personally signing the litigation against the North Dakotan.
“We don’t sign the indictments, we don’t sign civil complaints,” Patrick said of the role of U.S. Attorneys, who typically oversee a stable of hundreds of attorneys beneath them.
“I told my guys that I would personally sign this. I wanted to make a statement that we weren’t messing around with it,” Patrick said.
SELF-ACCOUNTABILITY
In court filings, the government repeatedly details Fisher’s failures to timely respond to the government’s many questions and requests for documentation.
Indeed, it was a similar lack of communication that sparked the government’s lawsuit in the first place. But now that same government is trusting Fisher to take the lead on ensuring the terms of the settlement will be met.
It’s on Fisher — or his local designee — to regularly inspect the site, report areas that require repair, and then follow through on those repairs.
And while the IBWC can make repair recommendations, TGR can disagree and take those disagreements to mediation.
The settlement also prohibits the IBWC from ever suing Fisher over the wall in the future, though Patrick said that provision likely doesn’t bind other government agencies or private individuals from doing so.
Other stipulations require that Fisher, or his local designee, respond on just 12 hours’ notice to warnings of severe weather threats — warnings that the IBWC will issue via email.
When reached for comment last Tuesday, Fisher — who has construction projects throughout the Southwest — declined to say who that local designee may be.
“We have assets and people all over the country,” Fisher said when pressed as to whether his company or a local subcontractor would be responsible for responding to any potential issues.
Though he wouldn’t give The Monitor an answer regarding his local designee, the settlement stipulates that Fisher must tell the IBWC who that person is within the next 30 days.
Further, TGR has 90 days to shore up existing erosion at 11 sites along the wall.
That stipulation would seem to substantiate one of Treviño Wright’s many assertions about the project — that Fisher has already failed to correct erosion that would undermine the structure’s integrity.
With the butterfly center’s own property so close to the private wall, Treviño Wright has had ample opportunity to make observations of the wall site, yet she has seen no such mitigation efforts.
“No. The only thing I have seen is what you saw after Hurricane Hannah, which was Fisher filling holes from the catastrophic erosion trying to cover up his shoddy workmanship,” Treviño Wright said.
UNCERTAIN FUTURE
The settlement makes clear that the IBWC fully expects erosion to continue for the life of the structure, as the bulk of the settlement terms revolve around mitigating such damage.
To that end, TGR Construction is on a seven-day deadline to secure a $3 million, 15-year surety bond that the government can leverage if Fisher fails to satisfy the terms of the settlement.
Any successive owners of the wall must also maintain the bond.
That stipulation does not apply, however, if the wall “is transferred to a governmental entity or department” — something Fisher has mentioned as his ultimate goal for the wall.
But that has never been a real possibility, according to Patrick.
“The whole thing is just a mess and it was a vanity project and it accomplished nothing. And no one I spoke to in Border Patrol that knew what was going on wanted any part of this,” Patrick said.
But as to why the government would sign off on an agreement that seems to so heavily favor Fisher while offering the IBWC few — if any — concessions with real teeth, Patrick explained it’s the responsibility of DOJ attorneys to represent their clients.
“We also had to move at the speed that they wanted us to and press on the issues they wanted us to press on,” Patrick said.
“As the U.S. Attorney, I would have probably still been pushing to have the thing removed as it sits there now,” Patrick said, adding a few moments later that, “It should have never been built to begin with. And now it should come down.”
