Federal authorities have reached a deal that gives builders of the privately funded fence control over where to inspect for damage and leeway over which issues they choose to repair.
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Federal prosecutors reached a settlement agreement late last month with the construction company that built a troubled private border fence along the Rio Grande in South Texas.
The settlement caps off two and a half years of legal wrangling after the federal government sued Fisher Industries and its subsidiaries, alleging that the 18-foot-tall and 3-mile-long fence led to erosion so significant that it threatened to shift the border and could cause the structure to collapse into the river, impacting a major dam.
Under the agreement, the company must conduct quarterly inspections, maintain an existing gate that allows for the release of floodwaters and keep a $3 million bond, a type of insurance, for 15 years, or until the property is transferred to the government, to cover any expenses in case the structure fails.
Experts told ProPublica and The Texas Tribune that the settlement provides insufficient protection to the Rio Grande’s shoreline and leaves too much discretion to the builder when it comes to maintaining and inspecting the bollard fence.
“They’re putting Band-Aids on top of Band-Aids to fix the initial problem that they caused,” said Adriana E. Martinez, a Southern Illinois University Edwardsville professor who studies river systems.
She said the settlement does not require enough from the company to prevent additional flooding or damage from the fence.
The settlement lets Fisher Industries select the places along the fence to inspect for damage, decide what triggers some repairs and reject any proposed changes to the maintenance plan suggested by the government. It also allows the company to police itself instead of requiring a third-party inspector, said Amy Patrick, a Houston forensic structural and civil engineer and court-recognized expert on wall construction.
“It appears as though they are trusting the contractor far more than I have seen other contractors trusted,” she said.
As part of the settlement, Fisher and its subsidiary must destroy copies of an engineering report, commissioned by the Department of Justice, that studied the project’s soundness. Federal officials said the report contains “proprietary information.”
ProPublica and the Tribune requested copies of the report in August, months before the settlement, but the DOJ refused to provide the records, citing a confidentiality order in the ongoing lawsuit.
Ryan Patrick, former U.S. attorney for the Southern District of Texas, said that his office first filed the lawsuit to stop the construction of the project because it violated the law and it was too close to the river. “We always knew it was a joke, but it was a dangerous joke,” said Patrick, now a partner at a law firm in Houston.
Patrick said he still thinks the fence should be removed, but he declined to discuss the settlement, saying there might be information related to the difficulty or cost of taking it down that he doesn’t know since he left office in February 2021. “But I am still concerned for the surrounding towns if a big storm hits that thing.”
Neither the builder, Tommy Fisher, nor his company’s attorney responded to requests for comment. DOJ officials declined to comment, saying they did not have additional information besides what was available in court documents.
Fisher Industries started building the bollard fence along the banks of the Rio Grande in 2019 as part of a wider effort of We Build the Wall, a nonprofit organization founded by Brian Kolfage, an Air Force veteran. The nonprofit raised more than $25 million, Kolfage said, to help former President Donald Trump build his “big, beautiful wall” along the border. In April, Kolfage pleaded guilty to federal charges of defrauding donors of hundreds of thousands of dollars in contributions to the wall effort.
The government filed a lawsuit soon after Fisher started construction of the project. It alleged the fence violated a treaty with Mexico that requires both countries to approve any development that can affect the international boundary. A state district judge in Hidalgo County granted the government a temporary restraining order to stop construction, but a federal judge reversed it a month later.
By February 2020, Fisher completed the 3-mile fence along the river’s edge.
Later that year, ProPublica and the Tribune reported that severe erosion at the base of the fence outside of Mission, Texas, could result in the structure toppling into the Rio Grande if not fixed. Following the reporting, Trump attempted to distance himself from the project, saying on Twitter that it had been constructed to make him look bad, despite some members of his family and top advisers previously vouching for it.
Two engineering reports, commissioned by the nearby National Butterfly Center, a nonprofit that opposed the project because of flooding concerns, later confirmed the news organizations’ findings.
In the summer of 2020, Hurricane Hanna dumped about 15 inches of rain into the area, leaving waist-deep cracks on the banks of the Rio Grande along parts of the fence, which threatened the structural integrity of the project, experts told ProPublica and the Tribune at the time. Fisher, the CEO who put more than $40 million of his own money into the project, told ProPublica and the Tribune that erosion was expected given the amount of rainfall.
He said his company had fixed the erosion, in part by adding a 10-foot-wide road made out of rocks for the Border Patrol to drive over. “I feel very comfortable with what we’ve done,” he said a month after the hurricane.
But Marianna Treviño-Wright, executive director of the National Butterfly Center, said she worries that the hurricane season, which began Wednesday and is expected to be more active than usual, could cause the structure to fail, potentially flooding communities and properties on both sides of the border and damaging the Anzalduas Dam, which provides irrigation water in the Rio Grande Valley.
Treviño-Wright called the settlement agreement a “total miscarriage of justice.”
Sally Spener, a spokesperson for the International Boundary and Water Commission, which will be in charge of oversight as part of the settlement, expressed support for the agreement and said she believed it addressed previous concerns. The binational commission is now responsible for ensuring the owners comply with the inspections and address any issues that arise.
Patrick, the former prosecutor, called the fence “a mess” that will have long-term implications.
“Looks like the builders of this thing are going to have to feed and care for this white elephant for quite some time and will in the end be far more expensive and a pain to deal with than they ever envisioned,” he said.
Originally published at ProPublica and Texas Tribune.