Though the prolonged government shutdown failed to produce the funding necessary to construct the entire border wall, a pre-existing allocation of $1.6 billion will fund 33-miles of border barrier, with a portion of the barrier built in Texas. Construction of the partial border barrier will be split between Federal and private lands. The pre-construction efforts of the Texas portion have given rise to an unusual opponent, the National Butterfly Center.
The National Butterfly Center (“Center”) is a nonprofit organization which owns roughly 100 acres of land in the City of Mission in Hidalgo County, South Texas. It purchased the land to create a preservation corridor for endangered species. The Center’s land is adjacent to the US-Mexico Border and is home to as many as 200 different butterfly species that migrate through the area at various times of the year. It is also home to roughly 400 different bird species, and a variety of land animals. The center has a variety of hiking trails for visitor use.
Maps produced by U.S. Customs and Border Protection place the wall on top of a pre-existing levee. As such, six miles of the wall will separate the Center’s land effectively slicing it into two distinct portions of 70-acres and 30-acres. The larger 70-acre portion of the property will be cut off from the rest of the center. In other words, 70% of the Center’s property will be behind the border wall. The latest design has the wall at 36 feet high, with an 18-foot concrete base augmented by 18 feet of steel bollards. The Center estimates that the government will bulldoze 200,000 square feet of land for the construction. The wall includes a 150-foot paved enforcement zone and will be fitted with cameras and flood lights. U.S. Customs and Border Protection and the Army Corps of Engineers have awarded a $145 million contract to SLSCO, a Galveston firm, to build the first installment.
The Center predicts that the construction will vastly disrupt the operation of its conservation efforts. In addition to the gross reduction in conservation land, the Center believes the wall will harm land animals in particular, who depend on their ability to freely move around the acreage for foraging and reproduction. However, some avian species, including the Ferruginous Pygmy Owl that only flies 6 ft. in the air, will also be impacted by the wall. The Center also believes the wall will create a flooding hazard by reducing the ability of water to drain, which could reduce the lands viability as a habitat. It has also expressed concern that the wall’s flood lights will affect nocturnal animal’s day-night cycles.
So far, the Center has been subjected to government surveyors who are measuring the land in preparation for construction. The Center was not given advance notice of workers entering the property, nor were they given notice that the contractors would begin cutting down trees. Though landowners do have protections regarding land seizures, Federal Law allows the Department of Homeland Security to bypass environmental restrictions. In fact, the current Administration waived the National Environmental Policy Act, the Endangered Species Act, and 26 other environmental statutes in order to expedite construction of the wall. Federal law also permits the Federal Government to take private property via eminent domain for public use. The resolution of these lawsuits can take years. Indeed, a number of eminent domain actions initiated by the Bush administration against private landowners for the first border wall project over a decade ago are still active. However, it should be pointed that the issue of possession, whether the government may be granted legal access to the property it seeks to acquire and begin construction, is typically resolved within a matter of weeks after the filing of the lawsuit. The continued existence of outstanding lawsuits is largely due to issues over the amount of compensation owed, not whether the project itself can be built. In many cases, the project’s construction is completed long before the compensation amount owed is resolved.
The Center regards the possible use of eminent domain to build the wall as unconstitutional as well as contrary to its environmental aims and is determined to fight the government as long as they can. Because they are a non-profit organization, the Center has relied on volunteers and crowdfunding as a means to raise money for legal fees and have so far received ~$80,000 out of a target $100,000. The Center entered the legal battlefield against the Federal Government in December 2017 after contractors arrived on the Center’s property with chainsaws and heavy machinery. Over a year later, on February 12, 2019, the Center filed a restraining order against the Federal Government.
On February 14, 2019, U.S. District Court Judge Richard Leon ruled against the National Butterfly Center and dismissed its suit against the Federal Government. This ruling effectively renders the Center’s request for a temporary restraining order moot. Judge Leon found that the due process rights of the Center were not violated by the Federal Government’s actions.
Despite this major blow to the Center’s fight against the Federal Government, not all hope is lost. In the recently passed compromise spending bill, U.S. Representative Henry Cuellar added language protective of the Center. The compromise spending bill includes $1.375 billion for 55 miles of border wall but renders five cultural sites in the Rio Grande Valley “off limits” to construction of the border wall. These five cultural sites include the National Butterfly Center, the Bentsen-Rio Grande Valley State Park, the Santa Ana National Wildlife Refuge, La Lomita Catholic Church, and the tract of land soon to be home of the SpaceX commercial spaceport. Should President Trump sign the spending bill, the National Butterfly Center may be able to rest easy.
Written by: Christopher Chan and Graham Taylor