MISSION, RGV – U.S. International Boundary and Water Commission has responded to a cease and desist letter sent by National Butterfly Center attorneys last month.
The letter demanded that the federal agency cease and desist from restricting access to an earthen levee located on the center’s private property.
A U.S. International Boundary and Water Commission (IBWC) official asked butterfly center staff, in a contentious confrontation, to remove anti-border wall protestors from the levee at a February protest in which attendees held hands across the flood barrier in defiance of those orders.
In their response to the American Civil Liberties Union of Texas and the Texas Civil Rights Project, who sent the letter on the butterfly center’s behalf, IBWC demands that the National Butterfly Center (NBC) apply for event permits prior to any future protests on the levee. The butterfly center, who’ll be hosting a protest involving a march set to cross the levee next month, says that they will not negotiate with hostage takers.
The controversial levee was engineered, constructed and is currently maintained by IBWC. In their response, the federal agency, charged with upholding binational water treaties with Mexico, showed that the butterfly center’s legal counsel committed an error in citing an easement which did not pertain to the property in question. The 100-acre butterfly sanctuary has been at the center of border wall resistance in the Rio Grande Valley.
IBWC offered a refutation to the butterfly center’s legal interpretations of relevant case law, in a letter dated April 8, obtained by The Rio Grande Guardian via a Freedom of Information Act. They provide two additional easements for two tracts of land and include a satellite image of the several tracts of land demarcating their proper easements.
NBC attorneys argued that stipulations within easements dictate the terms between property owners and the government, and nothing more. According to the easements provided by IBWC, the federal agency maintains the right to operate and maintain levees. The federal agency added that this right is not limited to “flood control purposes,” as is stated in the incorrect easement sent by the attorneys. IBWC maintains that their “broad right” to operate and maintain the levees includes the ability to manage and limit use of the levees to protect its structure and “ensure safe use.” In other words, if IBWC maintains the legal right to “operate” and “maintain” levees, then IBWC considers restricting public access as part of that operation and maintenance.
Rebecca A. Rizzuti, Assistant Legal Counsel for IBWC, wrote the response. She cites Sheppard v. City and County of Dallas Levee Imp. Dist., a 1953 suit in which a private land owner claimed right of possession to part of a floodway between two levee channels adjacent to the Trinity River, which also ran adjacent to Sheppard’s property. The mechanic built an auto garage in the floodplain which neared his property. Sheppard held no title claim to the floodway and never had, although he once tried to buy unsuccessfully. It was established in Sheppard, heard in a Dallas appellate court, that “in the maintenance and protection of the channel storage area” the municipal governments were acting in their “governmental capacities, not in their private, or proprietary capacities” and that the exercise of such governmental powers “may not be lost to them” unless they are shown to have benefitted by the transaction. IBWC relies on Dallas v. Sheppard in claiming their right to maintenance, operation and, by extension, their right to restrict public access on the levees.
Rizzuti references Brookshire Key Drainage Dist v. Lily Gardens, LLC, a 2010 case, cited by TCRP and ACLU, in which the above drainage district held an easement for the purposes of constructing, maintaining, operating, repairing and reconstructing a drainage canal, but could not bring a trespass claim against the original owners of the land who had placed a bridge-covering on a bridge that the district had constructed, according to ACLU, TCRP’s cease and desist. The covering in the Lily case passed over drainage culverts that the district had installed. The drainage district, however, was found to have no possessory interest in the bridge covering. A possessory interest denotes the right of an individual to occupy or exercise control over a given plot of land.
Rizzuti, however, differentiates Lily between the present case involving the butterfly center in pointing to the fact that the structure in Lily was a bridge and bridge canopy that did not interfere or touch the canal; it crossed over and preexisted the canal easement. The Lily court acknowledged that the alleged obstruction at issue was not located in the easement for the canal, nor did it touch the canal for which the easement was granted. Here, “the [butterfly center] activity and group events,” wrote IBWC’s legal counsel, “take place on top of the very flood structure for which the easement was granted and entirely within the easement for the flood structure.”
IBWC legal counsel goes on to argue that under a grant of easement for levee operation and maintenance, “the owner of the fee subject to the easement,” in this case the butterfly center, “has no right to use the land against the objection of the easement owner unless the easement owner’s refusal to permit the fee owner’s use is fraudulent or wholly arbitrary and unreasonable,” citing Wesco Materials Corp. v. Dallas County Levee Improvement Dist. Rizzuti adds that the right of use arising out of an easement is superior to the servient estate owner’s property interest and therefore must avoid activities that are “inconsistent or interfere with the dominant estate owner’s [in this case IBWC] use of its easement,” citing McDaniel v. Calvert — a 1994 case involving a private roadway easement and subservient owners who placed a gate which obstructed access to the easement owners.
IBWC maintains that their right to operate and maintain the flood structure, a potential site for levee border walls, involves the right to ensure the safety of the structures and of those on it. They reaffirm the right to require a permit for group events on the levee which would delineate liability for damage or injuries. Referencing a February phone call with Dr. Jeffrey Glassberg, founder and president of the National Butterfly Center and the North American Butterfly Association (NABA), Rizzuti reiterates a claim she made to him in which she says IBWC is not refusing to permit NABA use of the levees, but simply requires them, on behalf of the federal government, to “abide by the same limitations as other users and secure a permit for group activities or group events.” IBWC “expects NABA to comply with the permit requirement for any future group events or activities on the levee structures,” the letter concluded.
In February, the butterfly center hosted a protest which ended on the levee, referenced in IBWC’s letter. The protest was held in rapid response to the destruction of a federal, wildlife refuge tract in Mission, Texas, known as La Parida. The tract was cleared out by excavators on February 14. One day later, President Donald Trump signed into law a homeland security spending bill that included $1.3 billion for additional border barriers in Starr County before declaring a national emergency on the border. The protest and march, which began at Bentsen Rio Grande Valley State Park, was organized by the No Border Wall grassroots coalition. Neither they nor NBC applied for a permit.
The two-mile march, which included RGV community members of all ages, finalized with the 150 attendees linking hands as they stood atop the earthen levee on a hot, Saturday afternoon. As an organizer for the march, I witnessed a verbal confrontation between an IBWC official and NBC Executive Director, Marianna Treviño Wright. The U.S. government official, a middle-aged man, asked Treviño Wright to remove the protestors from the levee. She argued that the levee was on the center’s property and that the easement did not give IBWC the right to remove protestors. The protestors were not removed. After the event, some reported that they, too, had verbal confrontations with U.S. officials, like Border Patrol agents who warned them away from stepping onto the levee. The community defied IBWC, U.S. Border Patrol, and won.
The same group will hold a protest and procession set for Memorial Day Weekend that will involve crossing the levee to hold an In Memoriam by and for the river, expected to attract hundreds. When asked earlier this month about the permitting process asserted by IBWC, and their willingness to compromise with NABA on verbage placed on the signs, Glassberg scoffed at the suggestions, calling them absurd. He said, “we don’t negotiate with hostage takers.”