McALLEN, Texas (Border Report) — Not much was resolved after four hours of testimony Friday in two separate lawsuits over the building of a private border wall along the banks of the Rio Grande in South Texas.
Plaintiffs in the suits, including the U.S. Department of Justice, were hoping U.S. District Judge Randy Crane would issue an injunction to stop construction of the 18-foot-tall border barrier on private property south of the town of Mission.
Instead, parts of a temporary restraining order were removed, there was more clarity on how the International Boundary and Water Commission operates and how the agency addresses potential international treaty violations.
The Justice Department filed a lawsuit last month on behalf of the IBWC claiming that building on the river floodplain violates an international water treaty with Mexico. Another lawsuit filed by the North American Butterfly Association, on behalf of the National Butterfly Center, alleges a private border wall will cause a shift in river flow and damage the center’s nearby property.
The hearing was held in the U.S. District Court for the Southern District of Texas in McAllen. The hearing was suspended after four hours of testimony on Friday and will continue on Thursday.
In the meantime, Crane ruled that an agreed amended temporary restraining order will remain in place. The order forbids “constructing a bollard structure, wall or similar structure, pouring concrete or any other permanent structure.” However, he did remove a section forbidden shaving, grading or cutting of the riverbank.
Defendant Tommy Fisher, president and CEO of Fisher Industries, which has been contracted to construct the private border wall, said he is not trying to provoke the federal government or violate the 1970 U.S./Mexico Water Treaty. He said he is merely trying to make the United States safer, he said.
“I’m not doing this to fight with the government. I’m doing this to protect our Border Patrol agents, to make our borders safer,” Fisher said.
I’m not doing this to fight with the government. I’m doing this to protect our Border Patrol agents, to make our borders safer.”
Tommy Fisher, CEO and president of Fisher Industries
He added that construction workers cleared that section’s riverbank of tall carrizo cane. Border Patrol agents have long complained that the tall reeds often obstruct their search efforts of those attempting to illegally cross the Rio Grande from Mexico.
Fisher said his crews were back in South Texas and ready to begin construction on Saturday. The 70-man team plans to build 3.5 miles of border wall.
And with one section lifted from the TRO that had previously suspended any grading of the riverbank, or cutting back of vegetation, Fisher’s crews are now free to continue grading and cutting of the riverbank.
Much of the testimony on Friday focused on whether the building of an 18-foot-tall galvanized steel border fence has violated the 1970 water treaty, and how approval to build on the riverbanks is obtained by the IBWC.
Dr. Padinare Unnikrishna, IBWC chief engineer, testified that all property owners must present projects to the IBWC prior to any riverbank construction activity.
To this, Judge Crane asked incredulously whether a farmer wanting to put up a fence, or a homeowner wanting to build a dock needed permission for “even something so minor?”
“If they want to plant a tree they have to come and get permission? Crane asked. “How far does this go?”
“Yes, if something is within the Rio Grande floodplain,” Unnikrishna responded, giving examples of surveillance towers installed by U.S. Customs and Border Protection that he said IBWC has reviewed plans for.
Crane said he was worried that the defendants — Fisher Industries, and the landowner, Neuhaus and Sons — “were being singled out and treated differently.” He questioned why elaborate 2-dimension modeling was required of this project review, and if IBWC requires it of others.
Unnikrishna said IBWC has never had to evaluate a project of this grand size and scope and he admitted that most riverbank property owners do not ask IBWC to review their plans prior to adding a fence or a shed or other item.
Esteban Martinez, the IBWC’s regional security officer, testified he is the only security agent for this region, which spans from Laredo to Brownsville. When asked by Crane whether he has issued violations to other landowners, Martinez said they are understaffed and that he would be looking into other potential property violations in the region, including a school and neighborhood recently built in Brownsville in Amigoland.
The approval process includes construction plans being submitted to the U.S. Section of the IBWC, which then determines if they are in compliance with the treaty. If so, the U.S. officer sends a letter to the Mexican Section of the agency for its review. If there are no objections, then a Letter of No Objection is issued to the project, and that, in essence, green lights the plans, Unnikrishna testified.
He said this private border wall has been given top priority by the agency, which on Dec. 31 received all required project documents from Fisher Industries.
“We have never had so long a project of 3.5-miles on the banks of the Rio Grande,”Unnikrishna said.
Border Report plans to be in court on Thursday and will provide more information on these cases.
