A short announcement: Join us this Thursday, June 16, for a fascinating discussion where U.S. and European experts will discuss similarities and differences between European and U.S. border migration and enforcement. With global migration increasing faster than the global population, migration and climate change are the defining issues of this century. Our guests will include  Petra Molnar of the Refugee Law Lab; Lauren Markham, author of The Faraway Brothers: Two Young Migrants and the Making of an American Life, who has also written extensively on European border enforcement; Mark Akkerman, a researcher at the Dutch organization Stop Wapenhandel (and Transnational Institute), who has examined the border industrial complex of Fortress Europe like no other; and David Alvarez, English professor at Grand Valley State, who brings a literary perspective, especially from the point of view of the Mediterranean coast of Gibraltar.

Todd will moderate the discussion which starts June 16 at 10 a.m. Pacific/11 a.m. mountain/noon central/1 p.m. eastern.

If you’re new to discussion threads, the way it works is a live link will hit your email inbox at the start time. Then you can write questions for the experts and make comments. The discussion will be live throughout the day so you can participate at your convenience. This is going to be especially amazing because we have an All-Star League of border experts from both sides of the Atlantic.

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In May, the Government Settled a Lawsuit over a “Private” Border Wall in Texas. Now DHS Can Build a Wall Wherever it Wants, Says Marianna Treviño Wright

For the last several years, Marianna Treviño Wright, executive director of the National Butterfly Center in Mission, Texas, has struggled to maintain a nature conservation center on the banks of an increasingly militarized Rio Grande.

The 100-acre center is critical habitat for migrating butterflies, birds, and native animals and vegetation. All these are rapidly being lost to development and the massive border security apparatus now under construction along the Texas-Mexico border. The latter includes a 30-foot wall, surveillance towers, all-weather roads, and light towers.

In 2017 the center filed a lawsuit against the Trump administration to stop a 30-foot wall from being built through the middle of the nonprofit preserve, a project that it has successfully fought off to this date.

But in 2019 a nonprofit called We Build the Wall, affiliated with Steve Bannon and other Trump followers, built an illegal three-mile wall adjacent to the center on the river. Constructed from steel bollards, the 18-foot wall has a two-foot foundation of concrete built in sand that is rapidly eroding, according to Treviño Wright. If the wall falls into the river during a flood, it will have catastrophic consequences for anyone downstream, she says.

The wall also violates a treaty with Mexico, which requires that the two countries conduct hydraulic studies and agree on any structures built in the floodplain that might divert or change the river’s course.

Not long after construction on the private wall started, the National Butterfly Center filed suit against Neuhaus and Sons, the owners of the riverside property, We Build the Wall, and the North Dakota–based construction company, Fisher Sand & Gravel Co., and its CEO, Tommy Fisher, who constructed the 18-foot-tall steel barrier.

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A suit was also filed by the Department of Justice on behalf of the International Boundary and Water Commission, the federal binational agency that oversees the U.S.-Mexico treaty. Both lawsuits demanded that construction be halted until the group submits an engineering report to determine the wall’s impact on the Rio Grande.

That never happened. In Texas, U.S. District Judge Randy Crane ruled that construction could continue because government attorneys for the IBWC had failed to prove that a wall in the floodplain violated the treaty.

So the wall got built. But not long after, Bannon and We Build the Wall’s founder, Brian Kolfage, an air force veteran and creator of right-wing misinformation websites, and two other men, were indicted for wire fraud and money laundering after crowdfunding $25 million. According to the federal indictment, “Kolfage covertly took for his personal use more than $350,000 in funds … while Bannon … received over $1 million.” Recently, Kolfage and coconspirator Andrew Badolato pleaded guilty to the conspiracy, while another member of We Build the Wall, Timothy Shea, is awaiting a retrial. Bannon received a presidential pardon from Trump, which meant he skipped the federal money-laundering indictment.

The saga has had as many twists and turns as the Rio Grande for Treviño Wright and the National Butterfly Center, which I’ve been documenting in my Border Chronicle series “Butterflies and Barbarians.” They’ve also filed a defamation suit against Kolfage and We Build the Wall, which directed a stream of online vitriol against the center, calling it a “big business” that “openly supports illegal immigration and sex trafficking of women and children.” This is a harassment tactic that Kolfage and crew used against several border residents, including a popular Catholic priest in Mission, who objected to their illegal construction.

On May 31, the IBWC finally settled its lawsuit. (On a sidenote, Fisher was granted more than $1.7 billion in Arizona border wall contracts by the Trump administration after building the Texas wall and a half-mile wall in Sunland Park, New Mexico. Meanwhile, Bannon, Kolfage, and We Build the Wall were dismissed by Judge Crane from the Butterfly Center and IBWC lawsuits.)

I phoned Treviño Wright to discuss the settlement, which allows the wall to remain standing. Treviño Wright and her husband often take their boat out on the Rio Grande and check on the condition of the barrier. Last July, I went with them and could see the erosion of the sandy riverbank that the wall sits atop. (The National Butterfly Center’s pending defamation lawsuit was remanded to state court and has a trial date set for October 31.)

What do you think about Fisher’s settlement with the IBWC?

Well, the IBWC chose to settle and allow the illegal wall to stand. The settlement terms require that Fisher destroy all paper and electronic records of the Arcadis Engineering report about the impacts of the fence. Furthermore, in the settlement the DOJ states it intends to protect and keep confidential the content of that government requested report so no one ever sees it. Paxton Warner, the U.S. attorney representing the IBWC, did tell Javier Peña, our attorney, that he had indeed instructed Fisher, the defendant in our lawsuit to withhold that evidence from us in discovery.

Why do they want to withhold that information?

So that when the wall falls, no one can use that report against them. Especially if there’s property damage and loss of life. The conclusions of the report are evident in the second amended complaint that the IBWC filed. You only have to read the last few pages of the complaint, where it concludes all the same things that we alleged in our initial lawsuit, that the wall will fall, it will alter the international boundary, it will exacerbate flooding, resulting in land loss and sediment redistribution. And when it falls and floats downstream, it is likely to damage Anzalduas dam, perhaps even breach it, resulting in catastrophic downstream flooding and potentially death.

And it violates the treaty with Mexico, right? No one is supposed to build anything in the floodplain without agreement and extensive hydraulic studies.

Mexico isn’t really getting any say in this. Plus, you know, Mexico is a partner with the United States in so much of what’s happening here.

Have you been out on the river lately to check the condition of the wall? How is it looking these days?

The shore is continuing to recede as the river reclaims the riverbank. I mean, they built this thing at a bend where the river flows downstream into it, and then it has to make another turn. So it is a cut bank. And the river is going to reestablish it, at the height it was at before they decided to turn it into a beach, which is 10 to 12 feet tall. Maybe even a little bit taller in some areas, maybe 14 feet. The beach will be gone. It is already washing away. Every time the water rises or falls, every wave, and every wake of a boat erodes their beach.

So if the wall does eventually fall, it’s really going to impact people downstream?

Absolutely. And as for the bollards, they’re galvanized steel. And galvanized steel and concrete don’t bond well. So the galvanized steel that’s sunk into the concrete foundation already has a weaker bond. And then on top of that, they set these little concrete pyramid caps. And the pyramid caps have a rebar peg, and, well, those don’t appear to be fastened. They’re falling off. They’re rotating. In some cases, there’s a peg with no concrete cap on it. In some places you can see the cap has twisted or fallen off sideways or is gone completely. This means that when it rains, all the water is pouring into those bollards, straight down into the concrete foundation, which was a dry pour that’s crumbling to begin with, in a highly moist environment between the humidity, the river, and the rainwater.

Who’s responsible for the maintenance?

Well, the government has made [Tommy] Fisher responsible for it. He’s supposed to monitor and maintain it. And he has designated three people, but only one of them is local as far as I can tell, and he runs a plant nursery. And again, that’s because the government doesn’t want to be responsible if it falls. They want to be like, “Well, he was responsible for maintenance and monitoring. And so this is all on him.”

I noticed the settlement also says that in case of a flood event, he’s supposed to open a gate, then cut at least 20 existing bollards from the fence. How is that going to work, exactly?

I really don’t know. The floodgate is built on the downstream side. How is that in any way going to mitigate the floodwater that’s coming down the river into the peninsula when the only gate is on the downstream side of that peninsula? It’s like saying, when it starts raining, and you’ve got water in your bathtub, you need to unscrew your showerhead. What the fuck is that going to do?

Do you think this settlement sets a new precedent for wall building on the Rio Grande by just entirely ignoring the U.S.-Mexico treaty that governs the binational management of the floodplain?

The Department of Homeland Security has been looking for some justification or some mechanism for waiving the IBWC treaty, since like 2005. And in testimony, the U.S. attorney and Fisher, when they were discussing settlement with Judge Crane, they made it clear that the DOJ and State Department were signing off on this settlement. Since the federal government started building the wall, it’s waived every federal law for construction. But they could not waive treaties or the Constitution. This effectively sets a precedent so that DHS can build a wall wherever it wants. And I believe they’re going to use this as they build the next 69 miles in Webb and Zapata counties that the Biden administration recently announced. There isn’t anything left to stand in their way.