Private Push for Trump Wall Along Rio Grande Hits Legal Snags
The Rio Grande at the Gateway to the Americas International Bridge near the U.S. and Mexico border in Laredo, Texas. (Photographer: Matthew Busch/Bloomberg)

Private Push for Trump Wall Along Rio Grande Hits Legal Snags

(Bloomberg) -- An effort to build pieces of President Donald Trump’s Mexico border wall using private funding and land has run into an unlikely obstacle -- the federal government.

The U.S. International Boundary and Water Commission isn’t exactly a core pillar of the Trump administration. But with help from the top federal prosecutor in southern Texas, the agency is pushing back against the likes of Steve Bannon and other Trump allies who are trying to put up an 18-foot (5.5-meter) tall bollard-style barrier along a 3 1/2-mile (5.6-kilometer) stretch of the Rio Grande that they claim is used for illegal border crossings and drug smuggling.

Just as Trump’s ambition to put up a wall across the entire southern U.S. border is stuck in a court battle over his diversion of billions of dollars in taxpayer funds beyond what Congress approved, the private project in Texas is now mired in litigation, too.

Even before the water commission went to court complaining that the project that might violate a 1970 treaty with Mexico barring any development that alters the river’s flow, a group that runs a nearby butterfly sanctuary had already persuaded a state judge to temporarily block construction as a possible threat to the insect habitat.

Both legal challenges have now landed in front of U.S. District Judge Randy Crane in McAllen, Texas, who is is set to hold a hearing Thursday on whether to force the project’s contractor to complete an environmental impact study before it can move ahead.

The judge seemed at a hearing last week to be looking for a way not to block the project, said Marianna Trevino-Wright, executive director of the National Butterfly Center.

To Brian Kolfage, whose group We Build the Wall Inc. says it has raised $25 million to support Trump’s efforts to beef up border security, the butterfly center’s suit is politically motivated. “There’s no way that us putting a fence up that water can flow through is going to affect anything on the butterfly property a mile upstream,” he said.

Bannon, the former White House adviser, is the chairman of We Build the Wall’s advisory board, which includes other conservatives and Trump supporters such as ex-Colorado Republican congressman Tom Tancredo and former Kansas Secretary of State Kris Kobach.

The group persuaded Crane to dismiss it as a defendant in the water commission’s case on the grounds that it didn’t initiate the project or contract with Fisher Industries, the company doing the construction work. We Build the Wall told the judge it contributed about 5% of the total cost and that it was at “best equated to a passive investor” with no control over the property or the project.

Kolfage said in an interview he anticipated the project would be challenged in court, which is why his group decided not to get more deeply involved.

That didn’t stop North Dakota-based Fisher Industries from moving ahead with the Rio Grande project after completing a privately financed section of border fencing in Sunland Park, New Mexico, last year. After the Sunland Park barrier went up, local officials cited the property owner for failing to obtain a construction permit.

The company is headed by Tommy Fisher, who has gone on conservative television and radio touting the ability to build border walls quickly and cheaply.

His marketing and demonstration projects in New Mexico and Texas appear to have paid off. Last month, the Defense Department awarded Fisher’s company a $400 million contract to build a 31-mile section of border wall in Yuma County, Arizona.

The inspector general’s office at the department said shortly after the contract was announced that there would be an audit of how it was solicited and awarded.

Fisher Industries didn’t respond to phone messages seeking comment.

The cases are U.S.A. v. Fisher Industries, 7:19-cv-403; and North American Butterfly Assn. v Neuhaus & Sons, 7:19-cv-411, U.S. District Court, Southern District of Texas (McAllen).

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