McALLEN, Texas (CN) — We Build the Wall is breaking down on two fronts – in Manhattan, where its founder is facing a federal indictment, and in South Texas, where engineers say the Rio Grande is washing out the foundation of 3 miles of border wall it financed.
With We Build the Wall’s assets frozen due to the Aug. 17 indictment of its founder Brian Kolfage and advisory board chairman Steve Bannon, former adviser to President Donald Trump, the Florida nonprofit’s counsel asked a federal judge in McAllen on Thursday to wait a month before proceeding with a lawsuit over the wall on the banks of the Rio Grande.
We Build the Wall raised more than $25 million with online fundraisers supporting Trump’s efforts to wall off the U.S.-Mexico border, $1.5 million of which it donated to Fisher Industries for construction of the 3-mile stretch on the riverbank.
The National Butterfly Center, whose 100-acre refuge borders the construction site property, sued We Build the Wall and Fisher Industries last December, claiming the wall would redirect the flow of the river and debris would wash onto and damage its property.
Despite Trump’s reported endorsement of the project, the United States also sued Fisher Industries in December.
The government claimed Fisher Industries had not submitted an adequate hydraulic study with the International Boundary and Water Commission, thereby violating a 1970 U.S.-Mexico treaty prohibiting any projects obstructing the normal flow of the Rio Grande, the boundary between the two countries in Texas.
U.S. District Judge Randy Crane, a George W. Bush appointee, denied the butterfly center’s and government’s requests for him to halt construction and Fisher finished the wall in March.
According to an engineer’s report, since the wall went up Fisher has had to repair the riverbank underneath it three times because it is eroding.
At a status conference Thursday, Fisher’s attorney Mark Courtois told Crane the company has planted grass in hopes it will stabilize the soil.
“The issue we have is the grass not taking, which has caused some erosion. We’ll continue to work on that until we get that resolved,” Courtois said.
Government attorney Paxton Warner said the water commission is waiting for Fisher to provide modeling, but he said the company’s owner Tommy Fisher, a frequent Fox News guest, is confident he can stop the erosion.
“I think Fisher has in his mind an idea that is going to fix the erosion problem,” Warner told Judge Crane. “But for the commission we need to make sure fixes he puts in place are going to actually work because we are dealing with an international treaty and an international boundary.”
Once Fisher makes its repairs, Warner said, the government plans to hire a geotechnical expert and possibly a structural engineer and hydrologist to ensure the wall is sound.
Courtois and Warner both said they are optimistic the case can be resolved without going to trial. But to move things along they asked Crane, and the judge agreed, to impose a scheduling order with a trial date tentatively set for September 2021.
Critics claim Tommy Fisher only took on the project to prove his company could build it faster and cheaper than the government and entice the government to award it contracts.
The ploy apparently worked as the U.S. has awarded Fisher Industries more than $2 billion worth of wall construction projects.
But Crane on Thursday questioned the value of Fisher’s wall, given the government is building a wall along a levee in the same area.
“Its value is somewhat diminished because of that redundancy,” the judge said in the status conference.
He asked if Fisher planned to deed the property and wall to the government.
“There has been mention here or there that may be an ultimate outcome,” Warner said. “But I would point out to the court, the United States, the Department of Homeland Security, didn’t put its wall on the riverbank. The government went up where it actually showed it was a proper place to put the wall.”
Crane then addressed the National Butterfly Center’s parallel case against Fisher Industries and We Build the Wall.
We Build the Wall’s counsel David Oliveira, of the McAllen firm Roerig Oliveira and Fisher, asked Crane to pause the case for 30 days because the nonprofit’s assets were frozen under the Manhattan indictment, meaning there is no money to pay for his defense work.
“In 30 days, we’ll have a better idea if funds will be released and what we need going forward,” he told Crane in the Zoom conference. Crane agreed to let the parties hold off on discovery until the issue is resolved.
Kolfage is accused in the indictment of spending $350,000 of We Build the Wall donors’ money on a yacht, a Range Rover SUV, a golf cart, jewelry, cosmetic surgery, personal tax payments and his credit card debt after claiming that all the money raised would go towards wall construction.
Both he and Bannon have pleaded not guilty to conspiracy to commit wire fraud and money laundering charges.
After the indictments came down, Trump played down any connection between himself and We Build the Wall. He said he had not talked to Bannon in months and suggested the Rio Grande project was done to make him look bad.
“When I read about it, I didn’t like it,” he said. “It was showboating and maybe looking for funds. But you’ll have to see what happens.”