Border store sues fence builder, US over flood damage

Arizona Daily Star
November 28, 2009
by Brady McCombs

The U.S. government and the company with which it contracted to build a border fence in Lukeville are facing a suit from the owners of a border town convenience store for damages from a July 2008 flash flood.

The Gringo Pass Inc. lawsuit also accuses Kiewit Construction Co. of owing $2.7 million in unpaid rent and water bills. Gringo Pass owns property and a private water well next to the border in Lukeville, in southeastern Arizona south of Ajo.

In a motion to dismiss the case, Kiewit says it never had a written contract with Gringo Pass for rent or water, calling the grievance an "after-the-fact demand for an exorbitant property lease — matters that fail as a matter of law."

Attorneys for Kiewit — which was given a $21.3 million contract in 2007 to build 5.2 miles of steel mesh fence flanking Lukeville — also say the grievance is really against the federal government's mandate to construct the border fence.

No trial date has been set for the case, filed in U.S. District Court in May, but attorneys are scheduled to meet in court on Jan. 12.

Debris piled up

The Gringo Pass contention that the newly constructed, 15-foot-high wire mesh border fence caused flooding during a July 12, 2008, rainstorm has backing from a report issued that year by Organ Pipe Cactus National Monument officials.

According to the report, the fence acted as a dam during a storm that dumped 1 to 2 inches of rain in 90 minutes around the border towns of Lukeville, Ariz., and Sonoyta, Sonora.

The report said debris piled up against the fence, including in drainage gates designed to prevent flooding, and that the 6-foot-deep fence foundation stopped subsurface water flow. As a result, water pooled 2 to 7 feet deep, depending on the area, causing water that usually flows north to south across the border in natural drainage washes to flow laterally.

That water flowed toward Lukeville, causing flood damage to private property, government offices and businesses in Luke-ville and Sonoyta, the report said.

The fence did not live up to promises made by officials from the Department of Homeland Security and Kiewit that it would "permit water and debris to flow freely and not allow ponding of water on either side of the border" the report said.

The water pooled up in the Gringo Pass convenience store, damaging merchandise and forcing the store's closure for cleanup, the lawsuit says. The lawsuit says the flooding diminished property value by $6 million.

Unpaid bills

The lawsuit says Gringo Pass entered into an agreement with Kiewit Construction in 2007 to rent property and provide water.

Gringo Pass says Kiewit agreed to pay 50 cents per gallon for water and that Kiewit still owes it $2 million for using 4 million gallons of water.

Kiewit says it never agreed to that rate and called it exorbitant. The city of Tucson charges customers less than one-fourth of a cent per gallon for water.

The lawsuit also says Gringo Pass rented Kiewit two parts of its property for $50,000 a month each for Kiewit to store equipment and materials. It alleges that Kiewit owes $700,000 in rent.

Kiewit said it has paid Gringo Pass for the use of the property and disputes the allegation that it agreed to additional fees for property or water.

It says they never had a written agreement and says Gringo Pass is not a utility, and thus can't charge for water.

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