Governor Abbott and State of Texas Ordered to Remove Floating Buoys in Rio Grande, Federal Judge Grants Preliminary Injunction
By: Ricardo E. Calderon, Eagle Pass Business Journal, Inc., Copyright 2023
Texas Governor Greg Abbott and the State of Texas sustained a stinging legal defeat, albeit temporarily, concerning its $10 Billion border security program called “Operation Lone Star” as its multi-million dollar floating marine buoy barrier installed in the Rio Grande River at Eagle Pass, Texas during July 2023 has been ordered to be removed from the river by September 15, 2023, according to an Preliminary Injunction order issued by Senior United States District Judge David A. Ezra of Austin, Texas on Wednesday, September 6, 2023.
Judge Ezra ordered that “Defendants [Abbott and the State of Texas] and anyone working on their behalf are enjoined and hereby prohibited from building new or placing additional buoys, blockades, or structures of any kind in the Rio Grande River pending final judgment in this matter.”
Judge Ezra also ordered Abbott and the State of Texas “shall, by September 15, 2023, reposition, at Defendants’ expense, and in coordination with the United States Army Corps of Engineers, all buoys, anchors, and other related materials composing of floating barrier placed by Texas in the Rio Grande in the vicinity of Eagle Pass, Texas to the bank of the Rio Grande on the Texas side of the river.”
Ezra’s Preliminary Injunction shall remain in effect until a final judgment on the merits of the lawsuit brought by the United States Department of Justice is entered in the case, unless the preliminary injunction is modified by the Court, the United States Fifth Circuit Court of Appeals, or the United States Supreme Court.
In a footnote of his Opinion, Judge Ezra stated “with respect to the buoy barrier that is currently in place, this is a Preliminary Injunction and not a final disposition of this case on the full merits, so this Court is counseled to act in a measured way. As a result, the Court is directing that the buoy barrier be moved from the main waters of the Rio Grande River to the riverbank, rather than removal entirely from the river, so that the barrier does not impede or impair in any way navigation by airboats or other shallow draft craft along the Rio Grande River. The evidence has established that this can be done in a rather expeditious manner, as the Governor himself ordered movement of the buoy barrier, which the federal government maintained was in part in Mexican waters to a position closer to the United States side of the river.”
Governor Abbott and the State of Texas issued a press release immediately on September 6, 2023 that stated “Texas will appeal….” today’s court decision. “This ruling is incorrect and will be overturned on appeal. We will continue to utilize every strategy to secure the border, including deploying Texas National Guard soldiers and Department of Public Safety troopers and installing strategic barriers….Texas is prepared to take this fight all the way to the U. S. Supreme Court.”
Judge Ezra’s scholarly Preliminary Injunction thoroughly reviewed all of the legal requirements for issuing a Preliminary Injunction, held a Court hearing with witnesses, and examined the legal arguments of both the United States Department of Justice and Governor Abbott in finding that “the [buoy] barrier’s threat to human life, its impairment to free and safe navigation, and its contraindication to the balance of priorities Congress struck in the [Rivers and Harbors Appropriations Act of 1899] outweigh Texas’s interest in implementing its buoy barrier in the Rio Grande River. The harm to navigation is clearly evident from the evidence presented, while the State of Texas did not present any credible evidence that the buoy barrier as installed has significantly curtailed illegal immigration across the Rio Grande River….the state must comply with permitting requirements if it wants to obstruct or create a structure in the navigable waters of the United States.”
The United States Department of Justice filed a civil enforcement action against Governor Abbott and the State of Texas on July 24, 2023 alleging that the Defendants violated the Rivers and Harbors Appropriation Act of 1899 “by erecting a structure (buoy) in the Rio Grande River without authorization from the United States Army Corps of Engineers and creating an obstruction to the navigable capacity of that waterway without affirmative Congressional authorization.”
Judge Ezra’s Preliminary Injunction noted Governor Abbott announced that he was not “asking for permission” for Operation Lone Star, the anti-immigration program under which Texas constructed the floating barrier. Ezra pointedly stated in his Court order that “Unfortunately for Texas, permission is exactly what federal law requires before installing obstructions in the nation’s navigable waters. Texas’s construction of the floating barrier has violated two of the three courses of conduct proscribed by Section 10 of the Rivers and Harbors Appropriations Act of 1899.” Specifically, Texas created an obstruction not authorized by Congress in the Rio Grande and constructed a structure in the Rio Grande without the permission of the Chief Engineer of the U. S. Army Corps of Engineers and the Secretary of the Army.
Abbott and Texas’s three legal arguments for constructing the floating buoy barrier in the Rio Grande that the site of the buoy barrier was not “navigable water” of the United States, the floating buoy barrier is not an obstruction or structure in the Rio Grande, and that the Court should exempt Texas’s violation of federal law because Texas is being “actually invaded” by illegal migrants were all rejected by the Court.
Judge Ezra found that “credible evidence establishes that the harm from the floating barrier is immediate and ongoing—it is far ‘more than mere speculation.’ The floating barrier has already placed tremendous strain on the U.S.-Mexico relationship: one of the most important, dynamic, and economically impactful partnerships in the world.”
Mexico filed a diplomatic complaint with the United States concerning the floating buoy barrier in the Rio Grande. Mexico Foreign Secretary Alicia Barcena raised the complaint at her meeting with U. S. Secretary of State Anthony Blinken on August 10, 2023. Furthermore, the floating buoy barrier was constructed or floated up to 80 percent of it on the Mexican side of the Rio Grande.
Judge Ezra cited evidence in the case that Texas’s floating buoy barrier “presents an obstacle not just to persons and vessels in the water, but to the critical discussions between the two nations about ‘a new mechanism to improve the predictability and reliability of Rio Grande water delivery from Mexico to the United States. The countries are at a ‘sensitive stage’ in formulating an agreement on the topic, set to be completed in December 2023.” Further, the buoy barrier “threatens the International Water Boundary Commission’s ability to implement the core provisions of the 1944 Treaty between the United States and Mexico, which is crucial to allocation of waters in the Rio Grande.
Judge Ezra also noted that Mexican officials raised humanitarian “concerns at the highest diplomatic levels about possible loss of life to persons swimming in the Rio Grande,” including two migrants who drowned near the floating buoy barrier.
Judge Ezra’s Preliminary Injunction has been appealed by Governor Abbott and the State of Texas to the U. S. Fifth Circuit Court of Appeals.
