Company touted by Trump to build the wall has history of fines, violations

Company flagged for environmental, tax violations

By Priscilla Alvarez, Clare Foran and Ryan Browne, CNN
Copyright 2019 CNN

US-Mexico border wall fence.

(CNN) - President Donald Trump appears to have set his sights on a North Dakota construction firm with a checkered legal record to build portions of his signature border wall.

The family-owned company, Fisher Sand & Gravel, claims it can build the wall cheaper and faster than competitors. It was among a handful of construction firms chosen to build prototypes of the President's border wall in 2017 and is currently constructing portions of barrier on private land along the border in New Mexico using private donations.

It also, however, has a history of red flags including more than $1 million in fines for environmental and tax violations. A decade ago, a former co-owner of the company pleaded guilty to tax fraud, and was sentenced to prison. The company also admitted to defrauding the federal government by impeding the IRS. The former executive, who's a brother of the current company owner, is no longer associated with it.

More than two years into his presidency, Trump is still fighting to build and pay for his border wall, a key campaign issue. After failing to get his requests for wall funding passed by a Republican-held Congress during his first two years in office, Trump has met resistance this year from a Democratic-controlled House. His attempt to circumvent Congress through a national emergency declaration has been challenged in the courts.

On May 24, a federal district judge blocked the administration from using Defense Department funds to construct parts of the wall. The Trump administration has since appealed the block to the 9th US Circuit Court of Appeals and in the interim, asked the district court to allow building to continue pending appeal. The district court denied the administration's request.

Despite the uncertainty, construction firms have been competing to win multimillion-dollar contracts to build portions of wall, including Fisher Sand & Gravel.

Asked by CNN to comment on the company's history of environmental violations and legal issues, the company said in a statement: "The questions you are asking have nothing to do with the excellent product and work that Fisher is proposing with regard to protecting America's southern border. The issues and situations in your email were resolved years ago. None of those matters are outstanding today."

 

Catching the President's attention

 

The company was founded in North Dakota in 1952 and operates in several states across the US. It's enjoyed public support from North Dakota Republican Sen. Kevin Cramer, who as a congressman invited the company's CEO, Tommy Fisher, to Trump's State of the Union address in 2018. Cramer has received campaign contributions from Fisher and his wife. A photo of the event shared by Fisher in a company newsletter shows Tommy Fisher shaking Trump's hand.

The Washington Post first reported the President's interest in Fisher. According to the Post, the President has "aggressively" pushed for the Army Corps of Engineers to award a wall contract to Fisher.

The President "immediately brought up Fisher" during a May 23 meeting in the Oval Office to discuss details of the border wall with various government officials, including that he wants it to be painted black and include French-style doors, according to the Post and confirmed by CNN.

"The Army Corps of Engineers says about 450 miles of wall will be completed by the end of next year, and the only thing President Trump is pushing, is for the wall to be finished quickly so the American people have the safety and security they deserve," said Hogan Gidley, White House deputy press secretary.

A US government official familiar with the meeting tells CNN that the President has repeatedly mentioned the company in discussions he's had about the wall with the head of the Army Corps of Engineers, Lt. Gen. Todd Semonite.

Fisher has recently made efforts to raise its public profile, both by upping its lobbying efforts and through repeated appearances on conservative media by its CEO, Tommy Fisher.

In the past two years, for example, the company's congressional lobbying expenditures jumped significantly -- from $5,000 in 2017 to $75,000 in 2018, according to data compiled by the Center for Responsive Politics, a non-profit that tracks lobbying expenditures.

When asked about Fisher Sand & Gravel's lobbying, Don Larson, one of Fisher's registered lobbyists, said: "I am working to help decision makers in Washington become familiar with the company and its outstanding capabilities."

 

Media Blitz

 

As part of a media blitz on outlets including Fox News, SiriusXM Patriot and Breitbart News, Tommy Fisher has discussed his support for the border wall and pitched his company as the one to build it. In a March 5 appearance on Fox & Friends, Fisher said that his company could build 234 miles of border wall for $4.3 billion, compared to the $5.7 billion that the Trump administration has requested from Congress.

Fisher claimed that his firm can work five-to-10 times faster than competitors as a result of its construction process.

The President has also touted Fisher on Fox News. In an April interview in which he was asked about Fisher by Sean Hannity, Trump said the company was "recommended strongly by a great new senator, as you know, Kevin Cramer. And they're real. But they have been bidding and so far they haven't been meeting the bids. I thought they would."

Despite the President's interest, the company has thus far been unsuccessful in obtaining a contract to build the border wall, beyond that of a prototype.

Earlier this year, Fisher put its name in the running for border wall contracts worth nearly $1 billion. When it lost the bid to Barnard Construction Co. and SLSCO Ltd., Fisher protested the awards over claims that the process was biased. In response, the Army Corps canceled the award. But after a review of the process, the Army Corps combined the projects and granted it to a subsidiary of Barnard Construction, according to an agency spokesperson.

It's unclear whether the project will proceed, given the recent decision by a federal judge to block the use of Defense Department funds to build parts of the border wall and the administration's appeal.

Fisher, which has a pending lawsuit in the US Court of Federal Claims over the solicitation process, is listed by the Defense Department as being among firms eligible to compete for future border contracts.

It has moved forward with a private group, We Build the Wall, that is building sections of barrier on private land in New Mexico using private money raised as part of a GoFundMe campaign. Kris Kobach, the former Kansas Secretary of State who is now general counsel for the group, said a half-mile stretch is nearly complete, at an estimated cost of $6 million to $8 million.

In a statement, a Customs and Border Protection spokesperson said Fisher Industries has told them that the company has begun construction on private property along the border "in the approximate area of a USBP border barrier requirement that was not prioritized under current funding."

The spokesperson added: "It is not uncommon for vendors" to demonstrate their capabilities using "their own resources," but the agency goes on to "encourage all interested vendors" to compete for border contracts "through established mechanisms to ensure any construction is carried out under relevant federal authorities and meets USBP operational requirements for border barrier."

In responses provided to CNN through Scott Sleight, an attorney working on behalf of the company, Fisher maintained that it's "committed to working with all appropriate federal government officials and agencies to provide its expertise and experience to help secure America's southern border."

The company says it has "developed a patent-pending bollard fence hanging system that [it] believes allows border fencing to be constructed faster than any contractor using common construction methods." It also added: "Fisher has been concerned about the procurement procedures and evaluations done by the USACE to date, and hopes these issues can be remedied."

 

Relationship with Sen. Cramer

 

A month after attending the 2018 State of the Union address with Cramer, Fisher and his wife, Candice each contributed the $5,400 maximum donation to Cramer's campaign for the US Senate, Federal Election Commission records show.

Fisher also donated to several Arizona Republicans in the 2018 election cycle, including giving the $5,400-maximum donation to Martha McSally's campaign, records show.

A recent video produced by Fisher Sand & Gravel demonstrating its ability to construct the wall includes a clip of Cramer at the controls of a track-hoe lifting sections of barrier wall into place, saying "this is just like XBOX, baby." Cramer was joined at the demonstration by a handful of other Republican lawmakers from across the country.

Cramer has been publicly critical of how the Army Corps has handled its border wall construction work, arguing that it has moved too slowly and expressing frustration over how it has dealt with Fisher. In an interview with a North Dakota TV station, Cramer said that he believes the corps "made a miscalculation in who they chose over Fisher" and that the company had been "skunked so to speak." Cramer added that Fisher "remains a pre-qualified, high level, competitor."

In an interview with CNN, Cramer said that the company has come up in conversations he has had with administration officials, including the President and the head of the Army Corps, but while the senator said that he would "love if they got every inch of the project," he added that he has "never advocated specifically for them."

"Every time someone comes to meet with me, whether it's (Acting Defense Secretary) Shanahan, General Semonite, even with Donald Trump, they bring up Fisher Industries because they assume that's my thing," Cramer said.

"One of the things I've never done is said it should be Fisher," Cramer said. "Now, I love Fisher. I'd love if they got every inch of the project. They're my constituents, I don't apologize for that. But my interest really is more in the bureaucratic process."

According to an administration official familiar with the situation, Cramer sent information about Fisher to the President's son-in-law and White House adviser Jared Kushner, who then passed it along to the Army Corps of Engineers for their consideration. The source tells CNN that Kushner was not familiar with the company prior to getting information about them from Cramer.

Cramer said he does recall passing along information about the company to Kushner, but that he did not know what Kushner did with the information.

On May 24, Cramer told a North Dakota radio station that the President has asked him to examine the process of how federal border wall projects are awarded.

"We're going to do an entire audit," Cramer said. "I've asked for the entire bid process, and all of the bid numbers." Cramer told CNN the President said he wanted the wall built for the "lowest, best price, and it's also quality, and that's what any builder should want."

Asked about aspects of the company's checkered legal record, Cramer said "that level of scrutiny is important, but I would hope the same scrutiny would be put on the Corps of Engineers."

 

Environmental violations

 

Though its corporate headquarters are in North Dakota, Fisher has a sizable footprint in Arizona, where it operates an asphalt company as well as a drilling and blasting company. It's there that the company has compiled an extensive track record of environmental violations.

From 2007 to 2017, Fisher Sand & Gravel compiled more than 1,300 air-quality violations in Maricopa County, culminating in the third highest settlement ever received by the Maricopa County Air Quality Department, according to Bob Huhn, a department spokesperson. That's a record number of violations for any air-quality settlement in the county, Huhn said. The settlement totaled more than $1 million, though the department received slightly less than that following negotiations, Huhn said.

Most of the violations came from an asphalt plant that the company was running in south Phoenix that has since closed. While the plant was still running, the City of Phoenix filed 469 criminal charges against the company from August to October of 2009, according to a city spokesperson.

According to a 2010 article in the Arizona Republic, Fisher reached an agreement with Phoenix officials to close the plant in 2010. As part of the deal, fines were reduced from $1.1 million to an estimated $243,000 and all criminal charges were reduced to civil charges.

Mary Rose Wilcox was a member of the Maricopa Board of Supervisors at the time the city and county were fighting Fisher over the asphalt plant, which was located in her district. "They tried to persuade us they were good guys since they were a family-owned company. But they were spreading noxious fumes into a residential area," Wilcox said. "We tried to work with them, but their violations were just so blatant."

Michael Pops, a community activist who lived in the area around the plant, remembers fighting with Fisher for six years before the plant finally shut down. "The impact they had on this community was devastating," Pops said, adding many low-income residents living near the asphalt plant were sickened from the fumes the plant emitted.

The company has also racked up more than 120 violations with the Arizona Department of Environmental Quality from 2004 until as recently as last summer, according to the department.

In 2011, Fisher agreed to a Consent Judgement with ADEQ over numerous air quality violations the company had committed. As part of that settlement, Fisher agreed to pay $125,000 in civil penalties, and that it would remain in compliance with state air quality standards. Within two years Fisher was found to be in violation of that agreement and was forced to pay an additional $500,000 in fines, according to the state's attorney general's office.

 

Legal trouble

 

Internally, the company has also confronted issues.

In 2011, Fisher Sand & Gravel agreed to pay $150,000 to settle a sexual discrimination and retaliation suit filed by the US Equal Employment Opportunity Commission. The lawsuit charged that the company violated federal anti-discrimination laws when it "subjected two women workers to egregious verbal sexual harassment by a supervisor and then fired one of them after she repeatedly asked the supervisor to stop harassing her and complained to a job superintendent."

The settlement required Fisher to provide anti-discrimination training to its employees in New Mexico and review its policies on sexual harassment.

Micheal Fisher, a former co-owner of Fisher and Tommy's brother, was sentenced to prison in 2009 for tax fraud, according to the Justice Department. Fisher pleaded guilty to "conspiracy to defraud the United States by impeding the [Internal Revenue Service], four counts of aiding in the filing of false federal tax returns for FSG and four counts of filing false individual tax returns," according to a Justice Department release.

The company also admitted responsibility for defrauding the US by impeding the IRS, according to the DOJ. Citing a long standing policy of not commenting on the contracting process, the Army Corps declined to comment on whether Fisher's history factored into its decision not to award Fisher a contract.

CNN's Tammy Kupperman, Fredreka Schouten, Jeremy Diamond, Audrey Ash and Geneva Sands contributed to this report.

The-CNN-Wire ™ & © 2019 Cable News Network, Inc., a Time Warner Company. All rights reserved.