Judge blocks Trump's favorite construction company from building private border wall

From left, Michael Fisher, Tommy Fisher, Sen. Kevin Cramer and Rep. Kelly Armstrong outside Fisher Industries in Dickinson, N.D. (Photo: Twitter/@Armstrong_ND

A federal judge in McAllen, Texas, has temporarily blocked a plan for a construction firm favored by President Trump to build a privately-funded segment of border wall along the banks of the Rio Grande River.

The same firm, Fisher Industries, recently won a $400 million federal contract to construct 31 miles of barrier along the border near Yuma, Ariz. President Trump has urged the Army Corps of Engineers to hire the North Dakota–based firm, whose head is a major Republican donor and a frequent guest on Fox News. 

U.S. District Judge Randy Crane issued the temporary restraining order against Fisher Sand and Gravel and its subsidiary, Fisher Industries, Thursday afternoon in response to an emergency request from the U.S. attorney for the Southern District of Texas. Federal prosecutors filed the request on Thursday, along with a civil lawsuit against Fisher on behalf of the U.S. International Boundary Water Commission (IBWC), which, under a 1970 treaty with Mexico, has jurisdiction over approximately 1,000 miles of border that runs along the bed of the Rio Grande River. 

Since the course of the river can change over time, land on one side of the border can wind up in a different country, one of the functions of the commission is to keep the boundary lines in the same place.

The complaint outlines IBWC’s concerns that allowing the construction along approximately three miles of riverbank without prior approval from IBWC may violate the treaty, formally named the “Treaty to Resolve Pending Boundary Differences and Maintain the Rio Grande and Colorado River as the International Boundary.” Although construction of a barrier has not begun yet, prosecutors also claim that by clear cutting vegetation and grading the riverbank in preparation for the wall construction, Fisher likely already violated the terms of that treaty by causing a possible “shift of the Rio Grande river channel and, therefore, a shift of the international boundary line which runs in the center of the riverbed.” 

Federal Judge Randy Crane wrote in granting the injunction: “There is good cause to believe that Defendants Fisher Industries, Fisher Sand and Gravel Co., and Neuhaus & Sons, LLC. [the company that owns the property where the wall is intended to go] have engaged in, and are likely to engage in, acts that violate or have violated the requirements of the USIBWC pursuant to the 1970 Treaty between the United States and Mexico.”

In addition to both Fisher entities and Neuhaus, the complaint named We Build the Wall, a nonprofit backed by Steve Bannon and other prominent Trump supporters, which has raised millions of dollars in donations toward constructing parts of the  wall along the nearly 2,000-mile border between the U.S. and Mexico. Building the wall and getting Mexico to pay for it was a central promise of Trump’s 2016 campaign. But Brian Kolfage, founder and president of We Build the Wall, told Yahoo News that his group had been dropped from the case following a hearing Thursday afternoon. At the top of the temporary restraining order issued by Judge Crane, We Build the Wall is still listed as a defendant. But the group is not mentioned in the body of the document, which refers only to “Defendants Fisher Industries, Fisher Sand and Gravel Co., and Neuhaus & Sons, LLC.” A spokesperson for the U.S. Attorney's Office in the Southern District of Texas did not respond to Yahoo News’ request for confirmation on whether Kolfage’s group had been dropped from the suit and, if so, why. 

A construction crew works on a private border wall crowd-funded by We Build The Wall in Sunland Park, N.M., May 30, 2019. (Photo: Jose Luis Gonzalez/Reuters)

This is not the first time IBWC has clashed with the private border wall builders. Back in May, Fisher was hired by We Build the Wall to construct half a mile of steel bollard fence on a privately owned piece of land in Sunland Park, New Mexico. The property, an unused brickyard abutting the border with Juarez, Mexico, sits beside a dam managed by the IBWC. After quickly erecting the wall (which Kolfage later admitted to Yahoo News was done without municipal building permits), Fisher erected a gate across a road leading to the dam, without notifying IBWC, which owned the road. 

The commission’s attempts to remove the gate led to an outcry on social media and an email campaign on behalf of the company. Approximately six months later, Kolfage began posting on social media about We Build the Wall’s next project, the three-mile segment along the Rio Grande, also to be built by Fisher. After what happened in Sunland Park, where construction was done surreptitiously over a weekend with no notice to the government, the announcement alarmed environmental organizations concerned about the effects on critical butterfly habitat and civil-rights groups with an interest in immigration issues. Earlier this week, Keno Vasquez, a state judge in Hidalgo County Texas, where the new wall site is located, granted a temporary restraining order in a separate lawsuit filed against We Build the Wall by the nearby National Butterfly Center. In his ruling Tuesday, District Court judge, Keno Vasquez, wrote that allowing the wall project to proceed would cause “imminent and irreparable harm.”

In an interview earlier this month, Kolfage told Yahoo News that We Build the Wall’s attorneys and Fisher had been in communication with IBWC about this new construction effort from the start and would wait for the commission to conduct a hydrology survey and approve the plans. Fisher Industries confirmed that intention. 

But the complaint filed Thursday outlines the commission’s concerns. Despite multiple requests from IBWC for detailed plans and hydrologic data, as of the lawsuit’s filing, IBWC officials reported receiving only vague and insufficient documentation, which “provided scant detail about the planned work.” 

In the meantime, Fisher proceeded to prepare the land for construction by carrying out vegetation removal and grading of the banks of the Rio Grande River that, according to the lawsuit, “was not permitted by USIBWC, the owner of the banks of the Rio Grande River.” Kolfage publicized the progress in his Twitter feed with posts that, according to prosecutors, “reflected that Fisher Industries and WBTW were altering the character of the bank of the Rio Grande River.”

The commission said it still had not received a hydrologic survey when, “on or about December 3, 2019” Kolfage posted a solicitation for donations on the We Build the Wall website declaring, “WE BROKE GROUND ON PROJECT 2!” And “The wall is going up this week and we won’t be stopping till its complete.”

“I don’t want any more postings,” said Tommy Fisher, CEO of the construction company. In a phone interview with Yahoo News on Friday, Fisher sought to distance his company from We Build the Wall and its aggressive social media tactics. 

“I don’t follow social media much,” he said. When he saw some of what the group had been posting, he said, “I asked it to stop.”

Unlike their first private wall collaboration in Sunland Park, where We Build the Wall hired Fisher to do the construction, Fisher told Yahoo News that this latest effort on the Rio Grande is a “Fisher Industries project completely.” His company, Fisher said, is supplying the majority of funding for what he estimates will be a $41 million project, while We Build the Wall has invested “less than a few percentage points.” He said the project was intended to demonstrate Fisher’s design and construction expertise, but that he hoped that the U.S. government would eventually purchase the section.  

Screengrab: via YouTube

Fisher suggested We Build the Wall was more concerned with immigration policy, while describing himself simply as a businessman who doesn’t “want to be in politics.”

Fisher’s previous bids on border wall contracts were rejected by the Army Corps of Engineers, but the company kept looking for opportunities to showcase what Fisher claims is the best “innovative approach” to border security. 

Last month, new acting DHS secretary Chad Wolf made an unannounced visit to the private wall built by Fisher and We Build the Wall in Sunland Park. At a press conference, Wolf praised the project and appeared to encourage more private groups to pursue their own wall efforts, telling reporters, “I welcome all that want to be part of the solution.”

Earlier this week, the Department of Defense announced it had awarded Fisher a nearly $400 million contract to build 31 miles of border wall — a price of around $13 million per mile — near a wildlife preserve in Yuma, Ariz. Democratic Rep. Bennie Thompson, chairman of the House Homeland Security Committee, called on the DOD’s Office of Inspector General to review the contract, citing Wolf’s recent visit and Trump’s repeated endorsements of FIsher as cause for “concern about the possibility of inappropriate influence on USACE’s contracting decision.” 

Fisher told Yahoo News he’s not worried about this lawsuit having an impact his new government contract. Rather, he’s hopeful that his work on this second private wall project will lead to further government work on the border.  

“If we can prove we can go out and get the land, build something faster and more economical and provide better security solution, I’m sure the government’s gonna look at it,” he said. “[We] wouldn't do it without that hope in mind.”

Fisher said the company provided IBWC with detailed hydrology report on Thursday, the day the suit was filed, and “we feel good that we don't obstruct or deflect water.” That could not be immediately confirmed with officials at the commission or the U.S. Attorney’s Office.

As for We Build the Wall, Kolfage told Yahoo News that his group “is committed to securing every section of the border with barriers appropriate for that section. We will continue to change the game as we use private funds to protect our borders, defeat the cartels and assist the U.S. Border Patrol.

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