Government’s private border wall lawsuit inches closer to dismissal

Border Report

Federal prosecutor says 'devil in the details ... to get a resolution'

McALLEN, Texas (Border Report) — The federal government’s 2-year-old lawsuit against the contractor of a private border wall built in South Texas is close to being resolved and could be dismissed “within 60 days,” according to testimony given Friday in federal court in McAllen.

“We’re pretty close to getting the case resolved,” Assistant U.S. Attorney Daniel Hu, representing the federal government, told U.S. District Judge Randy Crane during a quick status hearing Friday.

Tommy Fisher, CEO of Fisher Industries, shows newly poured concrete on Jan. 15, 2020, at the base of a private border wall his company built south of Mission, Texas. (Sandra Sanchez/Border Report File Photo)

The federal government in December 2019 filed a lawsuit against Fisher Industries and Fisher Sand and Gravel, which built the 3.5-mile section of wall on private farmlands along the Rio Grande. The farmer that gave up the riverfront land, and the nonprofit group We Build The Wall, an organization that crowdsourced to raise millions of dollars in private donations for the construction, also were originally part of the lawsuit.

After two years, however, the defendants left in the case include Fisher entities.

Hu said the parties still must first agree on a few key details.

“There were a couple major stumbling blocks regarding gates and some deflection. Those matters, I think, have been resolved at least in principle. Of course, the devil is in the details to get a sort of resolution,” Hu said.

However, specifics were not laid out, nor did Crane probe.

Putting gates into the 18-foot-tall structure has been mentioned in previous hearings as a way to give federal agents access to the riverbank.

The private border wall is 3.5 miles long south of Mission, Texas. (Sandra Sanchez/Border Report File Photo)

U.S. Border Patrol agents reportedly say they have “been cut off access” due to the structure, according to The Washington Post.

And the reference to “deflection” has been mentioned in previous hearings in reference to a concern by federal officials that water from the Rio Grande can bounce, or deflect, off the galvanized steel bollards, which could be a violation of the international treaty between the United States and Mexico that governs the river.

What’s notable is that Hu specifically avoided saying the case was close to a settlement, telling Crane: “We’ve been working with the defendants and I don’t want to say a settlement yet.”

Houston lawyer Mark Courtois, who represents Fisher entities, agreed that a resolution is on track.

“We are pretty close to a final agreement done and I would say hopefully within the next 60 days,” Courtois said. “There are some things that need to be done pursuant to the agreement but in my mind, I don’t think there are any holdups, from the court’s perspective, in terms of resolving the case based on the agreement.”

The 6-minute hearing was held via Zoom due to the continued explosive cases of coronavirus in the Rio Grande Valley, and the case was monitored by over 20 entities, including national and local media and officials with the International Boundary and Water Commission, which oversees construction on the Rio Grande.

Crane asked whether they would have a contract to end the lawsuit or an agreement between parties to dismiss the case.

Hu said they’re unsure, adding, “We’re going to have to run this thing by the State Department seeing that it does affect the treaty with Mexico. They’re allowed to weigh in on this kind of thing. I don’t anticipate any that they’ll oppose, but I do anticipate that it will take some time.”

Crane said in the upcoming days he will vacate the orders for the trial, which was set to begin in February in his court.

The National Butterfly Center is located on the banks of the Rio Grande in Mission, Texas. (Sandra Sanchez/Border Report)

Immediately following that hearing, Crane heard another lawsuit involving the private border wall that was brought forth by the North American Butterfly Association on behalf of the National Butterfly Center, which is located a half-mile from the private border wall built in Mission, Texas.

The Butterfly civil lawsuit alleges defamation by We Build The Wall founders and charges the privately built border wall could damage neighboring properties like the Butterfly Center because it is too close to the Rio Grande.

The case was originally filed in state district court, in the 398th Judicial Court in Edinburg, Texas, but Crane bumped it up to the federal court to couple it with the federal government’s lawsuit.

Butterfly Association lawyer Javier Peña told Border Report on Thursday that he filed a brief this week reiterating his 2-year-old motion requesting the case be sent back to state court.

The National Butterfly Center is located in Mission, Texas. (Sandra Sanchez/Border Report)

Late Thursday, Crane issued an order remanding some of the case issues back to the 398th Judicial Court but ordered some charges involving the land and riverbank remain under his jurisdiction and court.

And he asked if the parties would be ready for trial in the spring.

Peña responded that his team still has not received critical discovery documents from Fisher, and asked for a summer trial.

Crane gave no explanation nor mention of his recent 18-page orders during Friday morning’s hearing. But he did note that, once again, We Build The Wall failed to be represented at the status hearing and it is unclear who, if any, is their lawyer.

A local lawyer who had been representing We Build The Wall last year was allowed to withdraw from the case after arguing his firm had never been paid for their services.

Crane said he would look for a two-week time block to set the trial, likely in the summer.

Sandra Sanchez can be reached at ssanchez@borderreport.com.

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