McALLEN — Construction efforts on a 3.5 mile stretch of private border wall south of Mission will remain delayed at least through most of this week after a judge extended a temporary restraining order against the wall builders in federal court last Friday.
The delay was the latest development in a pair of lawsuits filed against the private wall builders: Fisher Industries, Fisher Sand and Gravel Co., and TGR Construction, as well as property owners Neuhaus & Sons, and the nonprofit fundraising organization We Build the Wall. WBTW’s president, Brian Kolfage, has also been named in the suits.
In early December, 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 lawsuit against the private wall builders, alleging that continued construction could put the United States in violation of a 1970 treaty with Mexico that governs the international boundary line between the two nations.
A separate lawsuit filed against the wall builders in state district court by the National Butterfly Center — which lies adjacent to the worksite — alleged the project threatened to impede on the butterfly center’s private property rights. The NBC also alleged that Kolfage had defamed the NBC’s executive director, Marianna Treviño Wright, in social media posts used to raise money for the project.
With the two suits happening in parallel, Neuhaus & Sons moved to have the butterfly center’s lawsuit moved to federal court, arguing that the higher court had jurisdiction. Though WBTW and Brian Kolfage were soon dismissed from the government’s lawsuit, they remain named defendants in the butterfly center’s suit.
The three sides gathered before U.S. District Judge Randy Crane to discuss whether an injunction would be granted against the wall builders. The nearly four-hour long discussion included testimony from three witnesses — two representatives from the IBWC who testified on behalf of the government, and a hydrology expert who testifi ed on behalf of the NBC.
Fisher Industries is expected to present two witnesses of their own during a hearing slated for Thursday morning.
The government’s chance to prove Fisher’s noncompliance with the IBWC’s requirements may have been squandered, however, after testimony from the agency’s chief witness raised more questions than it answered.
Dr. Padinare Unnikrishna, the agency’s chief of engineering services, testified that the IBWChadmetwithFisher Industries in El Paso in early October to discuss a potential private border wall project. The meeting had included several high level IBWC officials, including Unnikrishna, Chief of Environmental Management Gilbert Anaya, principal engineer Jose Nuñez and others.
Fisher’s presentation included photos depicting examples of bollard wall structures and satellite imagery showing the kind of riverside landscape the group hoped to build on. Though the Oct. 3 meeting lasted several hours, the IBWC never told Fisher Industries they would need to provide “2D” hydraulic modeling to illustrate the wall’s potential impacts on the river.
It wasn’t until Nov. 15 that IBWC requested the more detailed hydrologic data.
That detail became a point of repeated criticism from Crane, who openly questioned the impetus and timing for the agency’s request for the data.
Unnikrishna testified there were two reasons why the issue had not come up during that initial discussion — first, that the company had yet to identify a specific project site or a detailed enough project plan; and secondly, the two sides needed to agree on the methods for creating the hydrology models.
“We were waiting for them (Fisher Industries) to reach out to us to discuss the modeling methodology,” Unnikrishna said in response to a question from Fisher Industries attorney Mark Joseph Courtois.
But Crane was skeptical of the explanations. “You knew in October this was going to be a bollard fence,” he said.
“I find it hard to believe your statement,” Crane added a moment later.
Too, he probed why no other private citizen had been required to submit 2D modeling for their proposed projects. “I’m concerned that different people are being treated differently here,” Crane said, adding that the legal question at play may not be one of compliance, but may instead be one of whether Fisher Industries has received due process.
Regardless of the lingering questions over why and when the IBWC requested more data, Fisher Industries ultimately submitted what the agency was looking for — enough so that the IBWC could run the data through a predictive modeling program late last month.
The results remain under review, Unnikrishna said, though he testified that “the model ran to completion.”
Courtois seized on that, asking Unnikrishna if the results showed the wall would have no impacts on the river. Unnikrishna said that, until it is analyzed further, the evidence doesn’t reveal a conclusion either way.
However, testimony from the National Butterfl y Center’s expert witness, engineering geomorphologist Mark Tompkins, later raised questions about the validity of the predictive modeling itself.
Tompkins testified that the IBWC’s simulation lacked a key variable. “In this case, they didn’t analyze sediment transport,” said Tompkins, who described his job as analyzing “the way rivers move water, sediment and debris.”
Tompkins obtained the same data Fisher Industries provided to the IBWC and ran it through the same predictive modeling program. The result, he said, was an uncalibrated model that can’t accurately predict what would happen to the land around the bollard wall in a Hurricane Beulah-like flood event.
“We don’t actually know if what it’s predicting is actually happening out there,” he said. But even the flawed model showed indications of potential erosion, he said.
“The model, the way it’s set up currently, isn’t giving me confidence that we’re predicting things in an accurate way,” Tompkins said.
After nearly four hours of discussion, the three sides were still no closer to a resolution than when they started. And with testimony of Fisher’s two witnesses still pending, Crane delayed further action until Thursday, extending the TRO with one caveat.
Crane lifted the prohibition against shaving, grading or cutting the riverbank spelled out in section 8b of the amended TRO. It remains unclear why that portion of the TRO was lifted, as the decision came after the three sides met with Crane behind closed doors.
The group remain prohibited from pouring concrete or installing permanent structures.