Judge orders nonprofit to temporarily stop private border wall construction in South Texas

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Lawyer charges border wall construction 'activity' still occurring despite TRO

MISSION, Texas (Border Report) — A Texas judge has temporarily halted construction of a border barrier by a private nonprofit advocacy group on private property along the Rio Grande.

State District Judge Keno Vasquez, of Hidalgo County, issued a temporary restraining order in response to a lawsuit filed by the North American Butterfly Association on behalf of the National Butterfly Center and the center’s executive director, Marianna Trevino Wright, which contends that a border wall built feet from the banks of the river and a half-mile from its property could hasten area flooding.

The defendants named in the lawsuit include the Florida-based We Build The Wall Inc., and its founder and president Brian Kolfage.

A Dec. 17 court hearing in Edinburg, Texas, has been set in the case.

The lawsuit charges that We Build The Wall last month began clearing private land on the banks of the Rio Grande without proper permits required for construction on an international waterway. The lawsuit goes on to say it has continued to work toward building a private border wall despite governmental entities — including the International Boundary and Water Commission — telling them they may not build a border wall until all plans and permits are fully reviewed.

The lawsuit contends that “a permanent steel wall on a cleared portion of the banks of the Rio Grande River and within the floodplain would cause redirection and build-up of surface water during flooding events. This redirection of surface water and the accompanying debris would cause permanent damage to the Plaintiff’s property (the National Butterfly Center).”

Javier Pena, an Edinburg lawyer representing the National Butterfly Center on Wednesday told Border Report that despite the TRO issued late yesterday afternoon, there “was still a lot of lights and movement” on the construction staging area on Tuesday night. And he is uncertain whether construction is still continuing on the tract of land that is inaccessible to the public.

A staging area for heavy equipment can be seen from a private roadway south of Mission, Texas, on Wednesday, Dec. 4, 2019. The equipment is being used to clear land by We Build The Wall to build a 3-mile section of a private border wall on private land. (Border Report Photo/Sandra Sanchez).

On Wednesday morning, several tractors and heavy equipment and construction workers could be seen at the inland staging area, which is adjacent to a public roadway. A Hidalgo County Sheriff’s deputy was sent to the Butterfly Center and he told Border Report he was sent there to ensure no construction was taking place.

Border Report has reached out to Kolfage and We Build the Wall to ask whether construction is continuing on the swath of private property about a half-mile from the National Butterfly Center, and how they feel about the temporary injunction. They have not responded.

A couple of weeks ago, Kolfage told Border Report they were merely “clearing land” and had no intention of building a border wall until their plans were approved. But in subsequent social media posts and tweets, the group has insisted that it is building a border wall in South Texas and boasted that the initial controversy and publicity helped them to raise nearly a quarter of a million dollars in a 24-hour period.

In a tweet on Tuesday afternoon, Kolfage’s employee known on social media as “Foreman Mike” tweeted they have successfully cleared 1.5 miles of land and “We’re getting ready to start placing bollards.”

Read a previous Border Report story on the land clearing.

The temporary restraining order comes weeks after the U.S. Section of the International Boundary and Water Commission — which oversees the Rio Grande water treaty with Mexico — sent We Build the Wall’s contractor, Fisher Industries, a letter on Nov. 15 instructing them not to build anything until all plans are approved.

The letter stated: “The USIBWC requests that you wait until its process is completed before continuing with the construction of your structure. Please note that pursuant to the 1970 Treaty, Article IV. (B)(2), compensation can be sought for damages caused by a deflection or obstruction of the flood or river flows related to the structure or the maintenance of the structure.”

But Pena claims that despite those instructions, activity has continued and that has prompted them to file this lawsuit because they fear waters from the Rio Grande could be misdirected to the National Butterfly Center if a border wall is improperly built so close to the shore.

The National Butterfly Center is located in Mission, Texas, on 100 acres that abut the Rio Grande. (Border Report Photo/Sandra Sanchez).

“They’re entitled to do whatever they want on their private property. What they can’t do is do something on their private property which damages the neighbors,” Pena said. “We need to study what this impact is. If it’s going to cause permanent damage to the surrounding areas.”

On Wednesday, the nonprofit environmental group EarthJustice sent a letter to the U.S. Army Corps of Engineers, which oversees border wall construction plans for the Department of Homeland Security, requesting they “investigate” what it calls “unlawful construction” of a private border wall.

The organization claims We Build the Wall failed to get Clean Water Act permits before starting construction.

“The International Boundary and Water Commission (IBWC) has already asked We Build the Wall to suspend construction and withdraw its construction equipment from the floodplain until it has submitted a detailed engineering study and receives required permits. It appears that We Build the Wall has disregarded the IBWC’s request and is currently undertaking clearing and grading activities on the banks of the Rio Grande despite the fact that it has failed to obtain permits from the U.S. Army Corps of Engineers, as required under federal law,” the letter states.

The letter, which cites Border Report’s stories and photos of land cleared by Fisher Industries, asks “that the Corps immediately investigate these apparent violations of federal law and ensure that all illegal construction activity cease.”

And late Wednesday, U.S. Rep. Henry Cuellar, vice chairman of the House Appropriations Subcommittee on Border Security, told Border Report: “I have also spoken with the U.S. International Boundary and Water Commission to ensure We Build the Wall submitted the required permit application that will determine any violations of the 1970 treaty between the U.S. and Mexico.” 

Pena said the EarthJustice letter bolsters their claim.

It “proves that We Build The Wall isn’t going through the proper channels; isn’t complying with the EPA requirements, the international treaty requirements, even the local state rules. They’re not complying with anything. They have the idea that since this is on private land ‘we can do whatever we want.’ And that’s not always true, especially when you’re on an international border and you’ve got neighboring properties and you’ve got a pretty big river right in front of you. You have to comply with certain requirements,” he said.

18-foot bollard panels planned

Border wall plans submitted to the IBWC from Fisher Industries show it plans to build an 18-foot-tall steel bollard structure with 5-inch gaps south of Mission. This is shorter than the 30-foot-high wall that the U.S. Army Corps and DHS have planned for the government-built border wall along the Southwest.

Pena questions how this remote section of the 3-mile border wall, which is not planned to connect to a government-built border wall, could be useful in deterring illegal immigration. He claims it is purely symbolic.

“This is Kolfage’s pet project that he’s doing as a publicity stunt to raise money. It has nothing to do with the national border wall. It is never going to be connected to the border wall. This is just a free-standing fence that he wants to put up and raise a bunch of money for,” Pena said.

DHS Acting Secretary Chad Wolf speaks to reports on Nov. 21, 2019, south of Donna, Texas, where the first government-built wall panels in the Rio Grande Valley are going up. (Border Report Photo/Sandra Sanchez).

In visits last month to El Paso and Donna, Texas, however, the Department of Homeland Security Acting Secretary Chad Wolf said he welcomed private border wall builders and any other efforts that could help agents along the Southwest border.

“I welcome all efforts to help secure the border as long as they’re done in concert with the men and women at the Border Patrol,” Wolf said on Nov. 21 as he toured a new section of a border wall being built by government contractors south of Donna, Texas.

The Washington Post earlier this week reported that North Dakota-based Fisher Industries has been awarded a $270 million contract by the Army Corps of Engineers to design and build a 31-mile border wall near Yuma, Arizona at the Cabeza Prieta National Wildlife Refuge.

Company President Tommy Fisher is a GOP supporter and has appeared on conservative media supporting President Donald Trump.

Fisher Industries also built a private border wall in Sunland Park, New Mexico, earlier this year for We Build the Wall.

Kolfage tweeted lat Wednesday that he had an invitation to the White House that evening.

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