Steel bollards are seen at the privately owned land by Neuhaus & Sons on Monday, Dec. 09, 2019 in Mission. photo by Julio Montalvo

Construction on a 3-mile stretch of private border wall along the banks of the Rio Grande south of Mission will resume as early as Sunday after a federal judge denied requests from both the federal government and the National Butterfly Center to halt construction.

“The court is not going to grant the preliminary injunction by the government and denies the request for the temporary restraining order (by the butterfly center),” said U.S. District Judge Randy Crane at the conclusion of nearly four hours of testimony Thursday.

“The court is simply not granting the emergency relief,” he added a moment later.

Thursday’s evidentiary hearing marked the second day of testimony in the two separate lawsuits filed against the private wall builders; the court heard an additional four hours of testimony last Friday.

For Fisher Industries CEO Tommy Fisher, the twin decisions were a win that will put his construction crews back to work as early as this weekend.

“We’re just happy that we can continue to move forward,” Fisher said immediately after the hearing ended.

“The crew will fly out on Saturday. … The first bollards go out on Sunday,” he said, adding that installation of the bollard wall structure will take between 8 to 10 days. Currently, sections of bollard wall are in place at the site — propped up by heavy machinery — but not yet permanently secured in concrete pads.

Fisher Industries, Fisher Sand and Gravel Co., and TGR Construction — a wholly owned subsidiary of Fisher Sand and Gravel Co. — were named in both lawsuits, which were filed by the National Butterfly Center, and by the U.S. Attorney’s Office for the Southern District of Texas on behalf of the International Boundary and Water Commission.

Both suits also named the site’s property owner, Neuhaus & Sons, as well as the nonprofit fundraising organization, We Build The Wall, and its president, Brian Kolfage.

WBTW and Kolfage were dropped from the federal suit early on after convincing the court of their limited involvement in the project.

Speaking outside the courthouse afterward, NBC Executive Director Marianna Treviño Wright said that, though she had expected the court’s decision, she was nonetheless “shocked” by it.

“I’m, frankly, shocked because what we just witnessed was a federal judge refusing to uphold a U.S. treaty,” Treviño Wright said.

“I really did believe that Judge Crane would uphold the authority vested in the IBWC under U.S. law and grant them the injunction,” she said of the government’s case.

Though the NBC based its arguments on state private property laws, which prohibit a landowner from making decisions that would adversely affect his neighbor’s property — such as the land loss the butterfly center claims would result from erosion caused by the wall — NBC attorney Javier Peña, too, spoke of the ruling’s implications for the 1970 international boundary treaty.

“I think that this very serious issue is not being given the weight that it deserves,” Peña said. “Because it’s not just loss of land, it’s shifting the border. It’s potentially making America Mexico again,” he said.

But, after nearly eight hours of testimony, Crane remain unconvinced that the government or the NBC had met the burdens of proof necessary to be granted a preliminary injunction or a TRO, respectively. “The court has heard evidence during multiple hearings,” Crane said. “(We) find all of that evidence of any potential injury to be highly speculative,” he said.

He went on to quote the butterfly center’s own expert witness, engineering geomorphologist Mark Tompkins, who testified that erosion damage would be “not inconceivable.”

That characterization was not definitive enough for the judge, who at several points chastened the plaintiffs’ attorneys in their questioning of Tommy Fisher and another Fisher Industries witness, civil engineer Greg Gentsch.

“That is not the burden of proof that our court requires,” Crane said of Tompkins’ “not inconceivable” testimony.

As for the government’s case, Crane found that it had failed to prove the private wall project would violate the international treaty. “There has been legally insufficient evidence provided by the government” that there would be any effect in violation, Crane said.

Indeed, the bulk of testimony from the government’s star witness, IBWC chief of engineering services Dr. Padinare Unnikrishna, had centered on the timelines for when the IBWC had requested specific kinds of data from Fisher Industries necessary for the IBWC to assess whether the project would impact the river and its path.

Unnikrishna also testified about the methodologies used to create the predictive modeling the IBWC would base that assessment on.

A second run of the data which included updated variables remained incomplete by the time the evidentiary hearing continued Thursday. Unnikrishna testified that the new data had crashed the predictive modeling program late the previous night.

For its part, the NBC said it will continue to evaluate the new data and continue running it through the same predictive modeling program used by the IBWC. The results could determine if they will continue to pursue their legal battle. “We need to see what the models will show. And once we see what the results of those are, then we’ll make that determination,” Peña said.

Treviño Wright believes Fisher Industries were deliberate in their choice of build site. The group’s early efforts included another property adjacent to the butterfly center before they settled on the peninsula-shaped piece of land owned by Neuhaus & Sons.

Treviño Wright thinks the location was chosen “deliberately, to have like a straw man enemy to bolster fundraising efforts,” she said. “And that is something that is still ongoing if you read the Twitter feeds of the other defendants,” she said, speaking of social media posts by Kolfage and WBTW.

The butterfly center’s current lawsuit is not the first time the small nature preserve has made headlines. In 2017, the NBC entered a legal fight to stop U.S. Customs and Border Protection from accessing the property as the government moved to survey nearby tracts of land for planned federal border wall construction.

The center and several of its neighbors — including the Bentsen–Rio Grande Valley State Park, and La Lomita Chapel — were ultimately spared from the public border wall plans by an appropriations bill approved by Congress in 2019.

Peña, too, said the notoriety may have fueled Fisher’s location decisions. “Fisher is just trying to use this as a billboard to sell its products. They basically admitted that here today,” Peña said, referring to Fisher’s testimony.

During that testimony, Fisher spoke of a $6.3 million project his company was contracted by the IBWC to complete. That project, which was awarded to Fisher Industries in September of last year, involves repairing 2.8 miles of levee in El Paso and is expected to be completed in December 2021, a spokesperson for the IBWC said.

Fisher also spoke of how the “patent pending” innovations of his  wall design differed from — and were superior to — the government’s bollard wall design.

That design includes Fisher’s use of galvanized steel for the bollards, the lack of a top plate which allows for the bollards to be set in a shallower concrete base, and a better floodwater flow thanks to the wider spacing of the bollards compared to the government’s version.

He also spoke of how he hopes the Rio Grande Valley project will serve as a model for how border security can be better accomplished when a wall is built closer to the river. “You can’t have good border security without being on the border,” Fisher testified.

It was a point he reiterated after the hearing. “We want all of America to see how border security can be done. … Hopefully, when we’re right, this will work for everyone.”

Editor’s Note: This story has been updated to clarify the nature and cost of the El Paso levee project awarded to Fisher Industries in September.