Upcoming court hearings could determine fate of border wall construction

The Border Wall

Hidalgo County Sheriff says they won't get involved unless ordered by a judge

MISSION, Texas (Border Report) — Despite two judges’ orders last week temporarily limiting the construction of a private border wall on the banks of the Rio Grande, construction activities could be seen and heard Tuesday afternoon.

However, it is unclear what comes next in the legal battle between the group building the wall and those trying to prevent it by citing environmental reasons. Although, some clarification may come in the form of two legal hearings within the next week.

In the meantime, Hidalgo County Sheriff Eddie Guerra told Border Report that his office won’t get involved unless a judge orders his deputies to take action, or unless citizens call in complaining that it is a violation of recently issued temporary restraining orders, and they are asked to investigate and make a report.

“We will not get involved unless someone calls us and tells us to go out there and says there’s a restraining order and this is what the restraining order says,” Guerra said. “The judge can issue a show cause or a writ of attachment, or can further order us to take some type of action.”

So far, Guerra’s office has received no such instructions.

Last week, a federal and a state judge each issuing temporary restraining orders in two separate lawsuits ordering construction activities to be curtailed.

The U.S. Marshals Office also can be called out to ensure the federal orders are upheld, Guerra said.

Upcoming court hearings

Two court hearings are scheduled in the upcoming days over the two separate lawsuits: one in federal court in McAllen, and one in state district court in Edinburg, Texas.

Both lawsuits allege that construction on the flood plain and on the international waterway violate the United States’ 1970 water treaty with Mexico, and could damage the river bank by causing water to deflect, which could damage neighboring properties.

Caterpillars and earth movers can be seen building a structure on private property south of Mission, Texas, on the afternoon of Tuesday, Dec. 10, 2019. The private advocacy group We Build The Wall has boasted on social media that it has raised $25 million to build a private border wall in South Texas. (Border Report Photo/Sandra Sanchez).

On Tuesday afternoon, Border Report counted at least a dozen Caterpillar earthmovers on the property owned by Lance Neuhaus. There also were construction crews, workers digging, scraping dirt and moving mounds of steel beams.

Since Friday, when Border Report last visited the area, the shoreline now has been stripped clear of all carrizo and sugar cane and native brush for as far as the eye can see to a deep bend in the river.

The shoreline south of Mission, Texas, on private property owned by Lance Neuhaus, has been razed and cleared in recent weeks, as seen on Tuesday, Dec. 10, 2019. (Border Report Photo/Sandra Sanchez).

Neuhaus last month told Border Report that he had given permission to the nonprofit advocacy group We Build The Wall Inc., to be on his six miles of private riverfront property.

Shortly after construction began last month, the first lawsuit was filed on Dec. 3 in state court. On Dec. 5, a federal lawsuit was filed by the U.S. Department of Justice on behalf of the U.S. Section of the International Boundary and Water Commission, which oversees the international waterway the United States shares with Mexico, and to ensure compliance with the treaty.

Multiple legal scenarios possible

These two cases could result in various legal scenarios that could play out in state and federal court in the next week which may, or may not, halt construction on the property altogether.

On Saturday, Border Report published exclusive first photos and video showing that construction activities had continued last week on the riverfront property, despite the two court orders.

Read a Border Report story and watch the exclusive video showing activities on the riverfront property.

Several area residents have expressed concern that construction is continuing, especially after U.S. District Judge Randy Crane, of the Southern District of Texas, on Dec. 5 issued a temporary restraining order against the building contractors, Fisher Industries, Fisher Sand and Gravel Co., and the landowner, Neuhaus and Sons LLC. The order barred them from “constructing a bollard structure, wall or similar structure, pouring concrete or any other permanent structure within the floodplain of the Rio Grande River.”

“Ain’t that crazy! Seems like nobody can stop them!” Catholic priest Roy Snipes, of Mission, told Border Report on Tuesday afternoon.

Snipes has been checking on the construction by boat almost daily. He says activity continues into the night with crews using massive floodlights to light up the riverbanks.

A dozen Caterpiller earth moves were seen at a private property in South Texas, south of Mission, on Tuesday, Dec. 10, 2019. Two judges have said a private border wall may not be built on the banks of the Rio Grande. (Border Report Photo/Sandra Sanchez).

Crane’s mandate, however, noticeably dropped the nonprofit advocacy organization We Build the Wall Inc., from the temporary restraining order. And he allowed for several exemptions, ruling the defendants are “permitted to clear and grub, trench, place rebar and conduit in the trench and seed and plant on the subject property.”

The U.S. Department of Justice filed the civil lawsuit and stated that construction on the river must comply with a 1970 U.S. water treaty with Mexico.

A hearing on the case is scheduled for Thursday afternoon in Crane’s courtroom in McAllen.

Another hearing is scheduled for Tuesday, Dec. 17, in Edinburg, Texas, in the 398th Judicial District Court. The lawsuit was filed by the North American Butterfly Association on behalf of the National Butterfly Center, and its executive director, Marianna Trevino Wright. Neuhaus & Sons, We Build the Wall, and the organization’s founder and president, Brian Kolfage are listed as defendants.

State District Judge Keno Vasquez on Dec. 3 issued a temporary restraining order to stop all construction in the riverbank flood zone.

The Butterfly Center’s lawsuit said a border wall built feet from the riverbanks and so close to its property could hasten area flooding and damage their lands. The National Butterfly Center is located a half-mile from Neuhaus’ property.

We Build the Wall has repeatedly posted on social media that the organization has raised over $25 million in private donations to build private border wall ventures, such as this one. The organization successfully built a small section of a border barrier earlier this year in Sunland Park, New Mexico.

If successful in South Texas, this would be the first swath of private border wall in the entire state of Texas.

The National Butterfly Center’s lawyer, Javier Pena, told Border Report last week that if the private border wall is built, it will violate the 1970 water treaty and he worries it will force floodwaters onto the Butterfly Center.

Several legal experts on Tuesday explained that various scenarios could play out during the scheduled court hearings. One possibility is that a decision by Crane in the federal case on Thursday could preempt an action in state district court next week.

Another possibility is if deputies from Hidalgo County Sheriff’s Department are sent out to the site and they issue a report that construction violates the restraining orders. Then Vazquez could issue an order for them to take action or wait to review the report at next Tuesday’s hearing.

Likewise, Crane could send U.S. Marshals to investigate and he could issue an order for enforcement.

Border Report plans to be at Thursday’s federal hearing and will continue to report on this story.

Sandra Sanchez can be reached at Ssanchez@borderreport.com.

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