MISSION, RGV – The trail to the earthen, flood control levee located on the National Butterfly Center’s northern 30-acres, is filled with native trees, plants, rare bird and butterfly species.

Two types of signage can also be found as you near the 18-foot high barrier: One type of sign warns that the upcoming levee is private property and forbids trespassing. The other, planted only in February, asserts that the levee belongs to the U.S. Government.

Is the levee private or federal property? The butterfly center faces this question, as it prepares for the likelihood of settling the dispute in federal court.

An uphill battle 

If visitors would like to see the Rio Grande from the center’s property, the center’s newest wetlands, or if employees need to access the 70 acres that lie south of the levee for maintenance, they would need to cross the levee either on foot or by vehicle.

The earthen levee, built in the 1950s, bisects the 100-acre property. It is situated one mile north of what the butterfly center refers to as the “reclaimed” Rio Grande, and is operated by the International Boundary and Water Commission (IBWC), a binational agency charged with applying water and boundary treaties between the U.S. and Mexico.

On February 12, IBWC workers placed “no trespassing” signs on the levee, as discovered by a butterfly center employee. According to an Hidalgo County Easement Deed, obtained by the Rio Grande Guardian, IBWC may only enter or reenter the levee for purposes of construction and maintenance. The deed stipulates the terms between the property owners and the federal government.

Luciano Guerra, nature photographer and outreach coordinator and educator for the center, said he was told by workers installing the signs that access to the “back-70” acres would not be restricted to workers or visitors, but was meant to keep vehicular traffic off the levee.

This account by Guerra confirms what IBWC Public Affairs Officer, Lori Kuczmanski, told the Rio Grande Guardian. She said that the signs are intended to keep vehicular traffic off the levees, not patrons nor NBC staff. In 2017, IBWC announced increased enforcement of levees in Hidalgo County for similar reasons, such as to prevent illegal activity like hunting and fishing on the levees. Kuczmanski said restricted access to the levees is also to prevent smuggling of humans and drugs, and other “bad things.”

National Butterfly Center Founder and President, Dr. Jeffrey Glassberg, made a call to IBWC’s legal counsel in February and explained his view that the levee was not federal property. The biologist and geneticist was told by an assistant legal adviser for IBWC that they disagreed and reasserted that the levee was their property, according to a cease and desist letter. Any legal basis for the government claiming the earthen levee on the butterfly center’s property has not yet been provided. However, Kuczmanski told the Rio Grande Guardian that the levee is an “engineering project” of IBWC’s and access to the public can therefore be restricted.

The butterfly center, which has been at the forefront of opposition to President Trump’s border wall in court, and on the streets, disagreed with the government’s apparently unilateral claim, prompting Texas Civil Rights Project and ACLU Texas attorneys Efren Olivares and David Donnati to send a three-page “cease and desist” letter to the binational agency on the center’s behalf. It was sent last week.

The cease and desist letter from NBC attorneys comes as recent, anti-border wall protests have focused on the levee, where proposed levee border walls may be built. At a February 16 march and protest from the Bentsen Rio Grande Valley State Park, just days after excavation of a national wildlife refuge tract near the state park, NBC Executive Director, Marianna Treviño Wright, confronted an IBWC official who demanded protestors get off the levee. The official was flanked by Hidalgo County constables and U.S. Border Patrol agents, as they barricaded the way westward on the levee from the butterfly center’s property with their patrol vehicles. Treviño Wright reiterated that the government (IBWC) only had an easement for the levee and therefore did not own it. The 150 protestors remained on the levee as they stood shoulder to shoulder for photos.

What’s an easement?

TCRP Racial and Economic Justice Director, Efrén Olivares, told the Rio Grande Guardian that an easement is a non-possessory interest in land, under Texas law. The holder of an easement has the right to use a tract of land for a special use only, and does not own or have full use and enjoyment of the land, he explained in an email.

The easement deed between the butterfly center (then under different ownership) and the federal government, entered into agreement in October 1974. It assigns “perpetual right and easement” to enter and reenter the land and premises “for the purpose of constructing, reconstructing, operating, and maintaining suitable levees for flood control purposes only…”

Olivares and Donnati argue in their letter that IBWC does not have the legal right to exclude individuals from being on National Butterfly Center property, citing the easement deed. The attorneys also cite what they say is relevant case law, in which federal and Texas courts have “repeatedly held that easements convey only the specific access or property rights enumerated in them, and nothing more.” 

The signs in question read, “RESTRICTED AREA” and “U.S. Government Property.” Nonetheless, the attorneys maintain that, “no part of the National Butterfly Center is U.S. government property…” Mentioning “unreasonable burden” to the center and its patrons, the attorneys are clear in their message to IBWC:

“Accordingly, we demand that you immediately cease and desist from asserting such right or taking any actions to exclude individuals from the National Butterfly Center’s property.” If IBWC continues such behavior, the letter concluded, “the National Butterfly Center reserves the right to pursue legal action.”

The cease and desist letter, sent March 27, gives IBWC 15 days to respond.

Funding for levee wall

In 2018, Congress approved funding for border fencing atop the levee located on the butterfly center’s property, as well as La Lomita Chapel and Bentsen Rio Grande Valley State Park, all of which are connected by the same levee, within just miles of one another. In 2019, the butterfly center and other “environmentally sensitive areas” were “saved” from border wall construction for one year by a “carve-out” in an 12th-hour amendment to the 2019 Department of Homeland Security Appropriations Act. Congressman Henry Cuellar, a chief negotiator and sole borderlands representative on the drafting committee for 2019 DHS appropriations, claimed credit for “saving” the “sensitive areas.”

Because of the Trump Administration’s February 15 Declaration of Emergency, the center’s fate remains unclear, as Trump’s veto was not overturned by the House of Representatives last Tuesday. The federal government may use monies pursuant to the emergency, therefore, to move forward, according to Treviño Wright.

“It leaves us in the border wall’s crosshairs,” she told the Rio Grande Guardian shortly after the failed veto override. 

This contingency recently earned Congressman Cuellar criticism from anti-border wall constituents at a news conference, which took place outside of La Lomita Chapel — one of the “sensitive areas.” Landowners who did not make Cuellar’s list of sensitive areas, in need of saving, were also present.

A lawsuit filed by the butterfly center in 2017 argued that the federal government was in violation of the Fifth Amendment to the U.S. Constitution, which guarantees due process in the taking of private land for “public works,” also known as eminent domain. The lawsuit additionally argued against the Administration’s waiving of federal, state and local laws to build border walls. It was thrown out by a federal judge in February. NBC has submitted an appeal. 

With eminent domain laws that give the federal government extraordinary powers, a national emergency on the border whose legality has yet to be determined by the judiciary, and the butterfly center’s uphill battle in federal court, as they consider tweaking their original complaint, NBC staff views every move by the government, including the posting of signage on what they consider their property, as one step closer to the building of a barrier that they say will destroy natural habitat, harm endangered wildlife, and obscure a southern horizon that, for the time being, can still be enjoyed.