McALLEN — Just days after the federal government reached an agreement on new terms to a temporary restraining order against private border wall builders Fisher Industries, a separate lawsuit against one of the company’s codefendants was moved from state district court to federal court.
The suits are part of an ongoing effort to halt the construction of a 3-mile stretch of border wall on private riverside land south of Mission and currently owned by Neuhaus & Sons, which has been named in both suits.
The National Butterfly Center — which first filed its lawsuit in the 398th state District Court on Dec. 3 — was that day granted a TRO against Neuhaus & Sons LLC, We Build the Wall Inc. and its president, Brian Kolfage, effectively ordering the group to halt construction occurring at the property adjacent to the butterfly center’s nature preserve.
The nonprofit organization alleged that continued construction would cause erosion, which would lead to irreparable damage to neighboring properties such as theirs. Also, the butterfly center alleged that Kolfage, in particular, had defamed the center and its executive director, Marianna Treviño Wright.
Just two days later — on Dec. 5 — attorneys with the U.S. Attorney’s Office for the Southern District of Texas, on behalf of the International Boundary and Water Commission, filed a suit of their own in federal court also seeking to halt construction. In addition to Neuhaus & Sons and We Build the Wall, the federal government named as codefendants Fisher Industries and its parent company, Fisher Sand and Gravel Co.
Unlike the NBC’s lawsuit, which revolves around private property rights and allegations of defamation, the government argued in its complaint that continued construction of the private wall could put the United States in violation of a 1970 treaty with Mexico which governs the international boundary line between the two countries along the Rio Grande.
FED TRO ISSUES
The same day the government filed its lawsuit, U.S. District Judge Randy Crane granted its request for a TRO, ordering the defendants to halt some construction activity, but not others.
The TRO prohibited Fisher Industries from “constructing a bollard structure, wall or similar structure, pouring concrete or any other permanent structure,” the TRO reads. Also, they were enjoined from shaving or cutting the riverbank itself.
However, the TRO permitted the company to continue with digging trenches and lining them with rebar and conduit, as well as seeding and planting.
Also during the Dec. 5 hearing, Kris Kobach, the former Kansas Secretary of State who represented We Build the Wall, successfully argued that the nonprofit organization was minimally involved in funding the Texas project — contributing some 5% of the project’s cost — and should therefore be dismissed from the suit. Crane agreed, dismissing the organization without prejudice in an order handed down Dec. 10.
The government became concerned, however, that construction at the site was continuing, despite the TRO, necessitating another meeting between the two sides on Dec. 12, where they agreed to file an amended TRO.
The following day, though, the government filed a motion stating the two sides were unable to agree to revised terms and that Fisher Industries had gone as far as removing the entirety of a section of the amended language the government had proposed, save for one word.
On Monday, federal attorneys filed an amended complaint, naming a new defendant in the case, TGR Construction Inc.
Finally, on Wednesday, the two sides reached a détente, if only briefly. Fisher Industries agreed to halt construction for the duration of the Christmas and New Year holidays, saying they intend to resume construction on Jan. 4, 2020, according to a motion they filed jointly with the government requesting to delay a hearing that had been slated for Thursday afternoon.
CHANGE OF VENUE
Meanwhile, as the federal case played out in parallel, Neuhaus & Sons moved to have the lawsuit brought against them in state district court transferred to federal court, as well, arguing that the 1970 treaty with Mexico supersedes the lower court’s jurisdiction.
The company — through their Weslaco attorney, Lance Kirby — filed a notice to remove the case to federal court on Dec. 13, less than an hour before Javier Peña, the attorney representing the butterfly center, filed a motion to extend the state TRO.
Where once the federal government was set to stand across the aisle from Kirby and a cadre of attorneys representing the various stakeholders in the private border wall project before Judge Crane on Dec. 18, now stood Peña who sought to differentiate the differing goals of the two lawsuits.
“Completely different goals in the two,” Peña said outside the federal courthouse after Thursday afternoon’s status conference.
“The government’s case is based on federal law and the treaty with Mexico. Ours is state law, just private property rights,” Peña said.
Jurisdiction wasn’t the only issue in question during the hearing, however; Crane openly questioned whether the NBC’s complaints — the defamation allegations and the property rights issues — should be severed into two separate causes of action.
“The defamation claims, to me, are completely independent, different causes of action,” Crane said.
Peña argued that the former is integral to the latter, saying that Kolfage’s statements on social media serve to inflame people with the purpose of raising money for the private wall construction. He further argued that the codefendants have become a party to the defamation via their hiring of We Build the Wall.
Crane chided Peña about making conjecture, saying the attorney was grandstanding. “The statements that they (WBtW) made, and I assume were vetted by the government … they contributed 5%” of the project cost, Crane said, referring to the organization’s assertions during the Dec. 5 hearing.
“Kolfage may be stretching the truth,” Peña said, implying that WBtW’s may be more involved in the project than they admitted in court.
“He’s either lying in court, or he’s defrauding donors,” Peña said of Kolfage afterward. “We’ll find out which.”
Unlike with the federal case, however, Peña appeared less willing to release WBtW from the NBC suit. “Right now, we’re not agreeing to dismiss any party,” he said, adding that the final decision will depend on “what the facts are.”
Thursday’s hearing between the NBC and the private wall builders revealed other details regarding the project, including an indication by Neuhaus & Sons to seek to be removed from the suit due to no longer having an interest in the property.
The landowner has reached a lease/purchase agreement with TGR Construction — the newly added defendant in the government’s case — Neuhaus attorney Lance Kirby explained. Kirby added that the lease term is short and that TGR would be “paying for the property on the day they (Neuhaus) release it.”
“Essentially, they are purchasing it already,” Kirby said.
As in the federal government’s suit, the butterfly center ultimately named Fisher Sand and Gravel Co. and Fisher Industries as codefendants in their own suit. They did so via an amended petition filed on Dec. 13 — after news of the federal lawsuit broke.
Though the amended petition remains under seal in state district court, its contents became public when Neuhaus & Sons included it in their filings to have the suit moved from state to federal court.
This case, as with the government’s, is set to return before Crane on Jan. 3, 2020.