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Government attorneys say private border wall project irreparably damaged the riverbank

The federal government on Thursday said Fisher Industries, a construction company that wants to build a privately owned border wall near Mission, had irreparably damaged the riverbank — despite a court order designed to prevent any permanent damage.

U.S. District Judge Randy Crane signed a temporary restraining order against Fisher Industries on Dec. 5, prohibiting “shaving or cutting of the bank of the Rio Grande River.” The order, however, didn’t stop Fisher Industries from digging trenches and clearing land.

During a hearing Thursday afternoon in McAllen, attorneys who represent the federal government said Fisher Industries dug a long, deep trench parallel to the Rio Grande.

Assistant U.S. Attorney Eric Paxton Warner and Assistant U.S. Attorney John A. Smith III warned the trench could destabilize the riverbank. If the riverbank collapsed, the course of the Rio Grande could shift and, as a result, change the location of the U.S.-Mexico border.

“It doesn’t seem to violate the order,” Crane said. “But it doesn’t seem to have been contemplated.”

Fisher Industries partnered with We Build the Wall, a Florida-based advocacy organization, to build about 3 miles of privately owned border wall near Mission.

The company apparently reached an agreement with Neuhaus and Sons, which owns the property, to build the wall just yards from the Rio Grande.

Construction near the river is regulated by the International Boundary and Water Commission.

Fisher Industries met with the IBWC in October, Smith said, and knew the project would require approval. Fisher Industries, though, started construction without mapping the area or conducting a proper hydraulic study.

Photos of the project, which showed that workers had destroyed parts of the riverbank, prompted the federal government to request a temporary restraining order against Fisher Industries, Fisher Sand and Gravel Co., Neuhaus and Sons, and We Build the Wall on Dec. 5.

Crane dismissed We Build the Wall from the lawsuit after the advocacy organization’s attorney, former Kansas Secretary of State Kris Kobach, said it provided just 5 percent of the funding and handled “social media cheerleading” for the project.

“In this particular case, Fisher Industries has bought the land — or is in the process of buying the land and Fisher Industries is in the driver’s seat of the project. They contacted We Build the  Wall to ask us if we could provide any financial assistance. We provided a very modest sum worth approximately five percent of the total cost of the project but we are best equated to a passive investor,” Kobach said on Dec. 5, according to the transcript. “We don’t have any control over the project or the machinery or what’s going on, nor do we have any control over the property.”

Attorney Ernest G. Fielder of Houston, who represents Fisher Industries, said the company didn’t violate the temporary restraining order.

“We didn’t hide this from them,” Fielder said, adding that Fisher Industries allowed the federal government unrestricted access to the construction site.

Fielder said that Fisher Industries wants to cooperate with the government and would stop work on the trench.

With about 70 people working on the project, delays cost money, Fielder said. He suggested a compromise: Allow the company to post a $500,000 bond and complete the project. If the project doesn’t pass IBWC muster, Fisher Industries will tear down the wall and restore the property to its original condition.

“We’ll post a bond 150 percent of the cost of tearing down the wall,” Fielder said.

Smith, the assistant U.S. attorney, said Fisher Industries had already caused irreparable damage by destroying the riverbank. He strenuously objected to Fielder’s complaints about the IBWC approval process.

“They’ve known since October that they had to do the hydraulic studies,” Smith said.

After a lengthy back-and-forth, Fisher Industries and the federal government agreed to revise the temporary restraining order.

The revised order may include new restrictions on construction, a bond and an expiration date.

Crane scheduled another status conference for Dec. 19.

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