Justice Department tried to hide report warning that private border wall in Texas could collapse

The report confirms a ProPublica and Texas Tribune investigation that found the privately built fencing could collapse during major flooding. The federal government resisted making the findings public for more than a year.

By Jeremy Schwartz and Perla Trevizo, The Texas Tribune and ProPublicaDecember 5, 2022 11:00 amBorder & Immigration, Crime & Justice, Government & Politics, The Texas Tribune

Verónica G. Cárdenas for The Texas Tribune/ProPublica

Erosion can be seen along a privately funded border wall in Mission in June 2020.

From The Texas Tribune:

A private border wall built along the Rio Grande in South Texas could collapse during extreme flooding, according to a federally commissioned inspection report that the government sought to keep secret for more than a year.

The 404-page report, produced by the global engineering firm Arcadis, confirms previous reporting from ProPublica and The Texas Tribune. It also shows for the first time that the federal government independently found structural problems with the border fencing before reaching a settlement agreement with the builder, Fisher Industries, in May.

Under the agreement, which ended a nearly three-year legal battle between the International Boundary and Water Commission and Fisher Industries, the company must inspect the fence quarterly, remove bollards and maintain a gate that would allow for the release of floodwaters. It must also keep a $3 million bond, a type of insurance, to cover any expenses in case the structure fails.

Engineering and hydrology experts told the news organizations the bond is inadequate to cover the kind of catastrophic failure described by Arcadis and raised concerns that the federal government’s decision to settle the case cuts against the report’s findings.

The company modeled different scenarios using the extreme weather conditions caused by Hurricane Beulah, a 1967 storm that dumped about 30 inches of rain in some areas of the border region and caused the banks of the Rio Grande to overflow. The modeling showed that the fence “would effectively slide and/or overturn” during major flooding, and that it starts to become unstable during much smaller and more frequent floods.

According to the report, the fencing doesn’t meet basic international building code and industry standards and has a foundation far shallower than border barriers built by the federal government.

“Every single conclusion in the report points to it not needing to be there and shows it is actually negatively affecting the area,” said Adriana E. Martinez, a professor and geomorphologist at Southern Illinois University Edwardsville. (She was not involved with the report.)

Martinez, who studies the impact of border barriers in South Texas, questioned how much more evidence the state and federal governments need to take down the fencing and prevent future construction along the Rio Grande.

Arcadis referred questions about its assessment to the Department of Justice, which represented the IBWC in the lawsuit, arguing the fence violated a treaty with Mexico that requires both countries to approve any development that can affect the international boundary. A DOJ spokesperson declined to answer specific questions about the settlement or about why the government fought the release of the report.

The news organizations obtained the report on Nov. 15 after multiple Freedom of Information Act requests and 15 months of back-and-forth with the federal government, which initially denied the request. The DOJ reversed course and released the report after ProPublica attorneys threatened legal action.

As part of the settlement, federal officials ordered that Fisher Industries and its subsidiaries destroy all copies of the Arcadis report, alleging that it contained “proprietary information.”

“Reading this and seeing the settlement that came out of this, it’s as though they completely disregarded the Arcadis report,” said Amy Patrick, a Houston forensic structural and civil engineer and court-recognized expert on wall construction. “I can see why they were dragging their heels so much on letting it get out because [the report] basically completely dismantled this idea that the fence will be OK.”

Mark Courtois, an attorney for Fisher Industries, said that the construction company “strongly disagreed with the opinions in the Arcadis report and refuted those opinions to the satisfaction of the IBWC.” He said the company worked with the IBWC, which is charged with oversight of the international treaty, to “reach a mutually agreeable resolution of all matters pertaining to the fence, including any issues raised by the Arcadis report.”

“Construction of the fence was completed nearly three years ago, and we continue to be confident in its design and construction,” Courtois said.

Sally Spener, a spokesperson for the IBWC, denied that Fisher was able to counter the conclusions in the Arcadis report to the agency’s satisfaction.

In an email to the news organizations, Spener said that the agency accepted the report’s findings, which showed a far greater impact on the flow of the Rio Grande than the builder had claimed. Despite that, she added, the settlement agreement’s requirements address the agency’s concerns that the barrier would violate the treaty.

But the settlement agreement won’t address the report’s findings that the fence was built on a flawed design and featured construction shortcomings that could contribute to its collapse, said Alex Mayer, a civil engineering professor at the University of Texas at El Paso.

“It just shows the shoddiness of the whole effort. It worries me even more,” Mayer said.

Tommy Fisher, president of Fisher Industries, started to construct the fence in 2019 with financial support from the online fundraising campaign We Build the Wall. The nonprofit was set up to help former President Donald Trump build his “big, beautiful wall” along the length of the border. In the end, four of the nonprofit’s top leaders, including Trump’s former adviser Steve Bannon, were arrested on fraud and other charges connected to the fundraising scheme.

Trump pardoned Bannon in January 2021. But in September, Bannon was indicted on state charges in New York. Bannon called the charges “nothing more than a partisan political weaponization of the criminal justice system.”

The three other men, including Brian Kolfage, an Air Force veteran who led the organization, face sentencing on Jan. 31 in federal court on various fraud and tax-related charges. Kolfage and another man pleaded guilty in April. The third man was convicted in October.

Soon after construction of the fence began, the DOJ filed a lawsuit in federal court to try to halt the work, claiming that Fisher Industries was violating the treaty with Mexico. A state district judge in Hidalgo County granted the government a temporary restraining order to stop construction, but a federal judge later reversed it.

During a January 2020 court hearing, Fisher claimed that his bollard wall design would bring security to the actual border by addressing the flooding and erosion concerns that previously prevented the federal government from building near the river’s edge.

The 3-mile project was completed in February 2020, making it the first border fence built directly on the riverbank in South Texas. We Build the Wall contributed about $1.5 million of the $42 million total cost, with the rest coming from Fisher, according to court testimony.

The areas around the private border fence soon started to show signs of erosion. Six hydrologists and engineers told ProPublica and the Tribune in July 2020 that the foundation of the fence was too shallow and that a series of gashes and gullies where rainwater runoff had scoured the sandy loam beneath the foundation raised stability concerns.

Following the organization’s news articles, Trump tried to distance himself from the project, saying on Twitter that it had been constructed to make him look bad.

Fisher called the news organizations’ reporting on engineering concerns “absolute nonsense” during a 2020 podcast interview hosted by Bannon.

“I would invite any of these engineers that so-called said this was gonna fall over, I’ll meet ’em there next week. … If you don’t know what you’re talking about, you probably shouldn’t start talking,” he said. “It’s working unbelievably well. There’s a little erosion maintenance we have to maintain.”

As climate change contributes to more extreme weather, better understanding the erosion that is occurring is critical, Martinez said.

“We know that there are more extreme hurricane seasons that are occurring due to climate change, so we know that it’s more likely that the fence is going to get flooded out in the Rio Grande,” Martinez said. “It’s just a matter of time before something happens.”

The fence outside Mission is one of two private border barriers built using private funds, but it may not be the last.

Texas Gov. Greg Abbott has embarked on an effort to build fencing along the state’s 1,200-mile border using a mixture of state funds and crowdsourced private dollars. And Trump said he would continue border wall construction while announcing last month that he would again run for the country’s highest office.

Ryan Patrick, a former U.S. attorney whose office first filed the lawsuit against Fisher, said that by settling the case and requiring a bond, the government limits the risk of losing at trial. Patrick left office before the settlement was negotiated. He continues to believe that the judge should not have allowed Fisher to build the fence.

The settlement doesn’t prevent someone from constructing on the floodplain in the future, he said, but it shows that the government will not give unrestricted authority to potential builders. “You are going to have long-term care and custody of that thing,” he said.

Amy Patrick, who is not related to Ryan Patrick, offered a different perspective.

The structural engineer said that the government’s handling of the legal case, and what she sees as an apparent indifference to its own engineering report, could set “a precedent that credible engineering will be disregarded in similar projects in the future.”

Disclosure: The University of Texas at El Paso has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

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