Judge orders government to share floodplain data with defendants in private border-wall suit

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Judge places further temporary restrictions on land digging in case

McALLEN, Texas (Border Report) — A judge on Thursday ordered the government to give the results of a hydrology study to the defendants in a federal lawsuit brought by the U.S. Department of Justice over whether the building of a private border wall on private land in South Texas violates an international water treaty with Mexico.

During a Thursday hearing, U.S. District Judge Randy Crane also scheduled another hearing for Dec. 19 and said he will issue a revised temporary restraining order on Friday that further limits deep digging on the private land on the riverbanks of the Rio Grande.

At times, Crane appeared to chastise prosecutors during the 40-minute hearing Thursday at the U.S. District Court for the Southern District of Texas in McAllen. Crane said that since the federal government has brought the lawsuit, then they must give any information that they have on the case to the defendants. That includes information derived from another government agency, the Federal Emergency Management Agency or FEMA.

“The rules of civil procedure require this disclosure by the government. You can’t use it as the sword and the shield,” Crane told Assistant U.S. Attorney E. Paxton Warner. “In all fairness, if you have this information you have to release it.”

The information sought involves expensive high-tech mapping equipment that could help to determine if the plans for a private border wall south of Mission, Texas, would alter the course of the international waterway, or cause water to deflect or redirect in the case of flood, which would violate the United States’ 1970 international water treaty with Mexico.

Federal prosecutors told Crane that FEMA has already conducted the mapping study on the river banks utilizing this Light Detection and Ranging equipment, also known as LIDAR. This technology is similar to radar and produces high-resolution digital elevation models, which the federal government says are necessary to determine if the private border wall plans could cause destruction to the shoreline, or change the water’s course by any means.

Houston defense lawyer Ernest Fielder argued that LIDAR is extremely expensive and said FEMA has already done the study and could simply plug in their project information and produce a report in 48 hours if requested.

Warner said they have asked FEMA officials to help, but so far have not gotten it. Crane even offered to sign a court order, if needed, requiring FEMA to give up the information.

“If you can’t get it then how do you expect a private citizen to have access to it?” Crane asked Warner. “I’m not for making people jump through hoops just to jump through hoops. That seems petty.”

I’m not for making people jump through hoops just to jump through hoops. That seems petty.”

U.S. District Judge Randy Crane

But Daniel Hu, chief of the civil division for the U.S. Attorney’s Office for the Southern District of Texas, said “LIDAR costs only about $2,000 per square mile analysis,” adding that that should be something the defendants should be able to afford if they are planning to build a border wall that costs over $20 million.

To that Crane retorted: “Your role here is to make sure someone who is building in the floodplain is in compliance with federal laws. You aren’t for one side or the other. If you have this answer then find out as soon as possible.”

The Department of Justice on Dec. 5 filed a lawsuit on behalf of the U.S. Section of the International Boundary and Water Commission (IBWC) against the private nonprofit advocacy group We Build the Wall Inc.; Fisher Industries; Fisher Sand and Gravel Co.; and Neuhaus & Sons LLC to stop the building of a permanent private border wall structure on the banks of the Rio Grande.

We Build The Wall has repeatedly posted on social media that it has raised millions of dollars online to build 3 miles of border wall on private riverfront land. The land is owned by Lance Neuhaus, who last month told Border Report that he has willingly allowed the group access to his land.

In a hearing last week, Crane issued a temporary restraining order (TRO) to curtail construction on the project while the case is being heard.

We Build The Wall, which crowdsources for funds online to build private border wall projects, was dropped from the orders by arguing they don’t actually build the projects. The other defendants, however, were “immediately restrained” from “constructing a bollard structure, wall or similar structure, pouring concrete or any other permanent structure within the floodplain of the Rio Grande River” … and no “shaving or cutting of the bank.” They were allowed, however, to “clear and grub, trench, place rebar and conduit in the trench and seed and plant,” according to the TRO that Crane signed on Dec. 5.

But Assistant U.S. Attorney John A. Smith III argued that the 4- to 5-foot deep trenches they have dug just feet from the water’s edge are eroding the riverbanks and could be already doing “irreversible harm.”

Smith said that We Build The Wall and Fisher Industries were informed in October when they met with IBWC officials over the project that they would need more in-depth hydrology studies. “They’ve known since October they had to do the hydrology study,” Smith said. “Now they come in here with their sense of bravado.”

They’ve known since October they had to do the hydrology study, … Now they come in here with their sense of bravado.”

Assistant U.S. Attorney John A. Smith III

To that, Crane replied, “I’m skeptical of everything everybody tells me. The purpose of this hearing is to move this case along as quickly as possible and that includes getting the LIDAR study.” He told prosecutors to let him know by Tuesday if they are unable to get the study from FEMA and then he would likely issue a court order for it.

Fielder would not comment after the hearing on how he felt it went. But he did offer to Crane that his clients could put up a $500,000 bond to prove that the structure is not permanent and does not violate the TRO: “That’s the ease with which it can be removed and adapted for the nation,” he said.

Fielder said that 70 construction workers currently are on this project and they are “sitting idly” as it stalls in court.

But video taken by Border Report over the past week has shown Fisher Industries crews continuing to use heavy equipment to erect a steel fence on the shoreline, which has been stripped of all vegetation.

On Thursday, as the court hearing in McAllen was going on, the Pentagon’s inspector general announced it was launching an investigation into a $400 million contract that the federal government awarded to Fisher Industries to build 31 miles of border wall in an Arizona wildlife refuge, The Washington Post reported. The U.S. Department of Defense’s inspector general’s office said it will audit the $400 million contract that the U.S. Army Corps of Engineers awarded to North Dakota-based Fisher Industries.

Also in the courtroom on Thursday was the lawyer for a civil lawsuit brought by the North American Butterfly Association on behalf of the National Butterfly Center against We Build the Wall, its president, Brian Kolfage, and Neuhaus & Sons. The National Butterfly Center is located a half-mile from the private property where the land has been cleared for the private border wall, and the center claims the wall would cause water to deflect and damage its property in case of a flood.

Javier Pena is a lawyer from Edinburg, Texas, who is representing the North American Butterfly Association in their civil lawsuit against We Build The Wall to stop construction of a private border wall in South Texas. (Border Report Photo/Sandra Sanchez)

Javier Pena, who is representing the Butterfly Center, said after Thursday’s hearing that he didn’t hear anything that would preempt their case. He added that he had a meeting with Hidalgo County officials on Wednesday and they are “looking into” jurisdiction issues,” regarding whether the Hidalgo County Sheriff’s Department, City of Mission, or other entities should get involved to ensure that another TRO issued in that case to halt construction of the private border wall is being properly complied.

Read a Border Report story on the National Butterfly Center lawsuit here.

Pena admitted “It’s a law school case. There are questions about private property, international treaties, county building, it’s confusing.”

A hearing for that case is set for Tuesday in Edinburg, Texas.

Border Report plans to cover that hearing and will continue to update readers on this story.

Visit the BorderReport.com homepage for the latest exclusive stories and breaking news about issues along the United States-Mexico border,

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