Fifth Circuit Court of Appeals Affirms Preliminary Injunction Against Texas Governor Greg Abbot to Remove Controversial Marine Floating Buoy Barrier from Rio Grande River
By: Ricardo E. Calderon, Eagle Pass Business Journal, Inc., Copyright 2023
A three-judge panel of the United States Fifth Circuit Court of Appeals in New Orleans, Louisiana in a split 2-1 decision issued on Friday, December 1, 2023, affirmed U. S. District Court Judge David Ezra’s granting of a preliminary injunction against Texas Governor Greg Abbott and the State of Texas to remove the controversial floating marine buoy barrier installed on the Rio Grande River at Eagle Pass, Texas, delivering a second legal loss to Abbott in the same week regarding his unilateral actions via his $10 Billion taxpayer-funded Operation Lone Star boondoggle seeking to supersede the U. S. Government’s exclusive authority of handling or managing immigration legal matters at the U.S.-Mexico border.
Earlier this week on Wednesday, November 29, 2023, Chief U. S. District Judge Alia Moses for the Western District of Texas delivered Abbott and the State of Texas their first legal loss concerning his unilateral, controversial Lone Star Operation actions seeking to supersede the U. S. Government’s exclusive authority regarding immigration law, denying Texas’s motion for a preliminary injunction or stay of agency action against the U. S. Border Patrol from cutting the military grade, razor sharp concertina wire fence installed along the banks of the Rio Grande at Eagle Pass, Texas whenever there is a reasonable, narrow objective medical emergency to protect undocumented immigrants from further harm or injury while already in the territorial jurisdiction of the United States on the riverbank of the Rio Grande.
In early June 2023, Governor Abbott announced in a press release that Texas was installing a marine floating buoy barrier on the Rio Grande at Eagle Pass, Texas Texas to “make it more difficult to cross the Rio Grande and reach the Texas side of the southern border” by undocumented immigrants, many of whom seek asylum in the United States. Abbott argued that the U. S. Constitution gives Texas the right to defend itself from an “invasion” by the undocumented immigrants and is exempt from complying with federal law under the Rivers and Harbors Act Appropriation Act of 1899 (HRA), which requires authorization from the U. S. Army Corps of Engineers to build a barrier on the Rio Grande.
On July 10, 2023, Abbott and the State of Texas began installing the marine floating barrier on the Rio Grande at Eagle Pass, Texas without the authorization of the United States government pursuant to the $10 Billion taxpayer funded controversial Operation Lone Star program under the direction of the Texas Department of Public Safety (DPS).
The marine floating buoy barrier is approximately 1,000 feet long, made of large, bright four foot orange buoys fastened together with a heavy metal cable and having razor-sharp serrated teeth between each one of them intended to harm or injure anyone attempting to cross over them while anchored with concrete blocks on the floor of the Rio Grande and having a stainless-steel mesh “anti-dive net” extending two feet underwater. Ironically, a survey demonstrated that approximately 80 percent of the marine floating barrier installed by Texas was on the Mexican-side of the international boundary rather than in Texas’ side of the Rio Grande.
On July 24, 2023, the United States filed a federal lawsuit in the U. S. District Court for the Western District of Texas, Austin Division, seeking a civil enforcement action under the Rivers and Harbors Appropriation Act of 1899 to enjoin the building of the marine floating barrier on the Rio Grande because its obstructs the navigability of the Rio Grande and was deployed without authorization from the U. S. Army Corps of Engineers. The United States requested that Abbott and the State of Texas “cease any work on the marine floating barrier and to reposition it on the Texas side of the riverbank by September 15, 2023.”
After holding a hearing on September 6, 2023 with witnesses, evidence, exhibits, and legal arguments, U. S. District Judge David Ezra granted the United States a preliminary injunction against Abbott and Texas requiring they cease all work on the controversial marine floating barrier and reposition it to the Texas-side bank of the Rio Grande by September 15, 2023 while the case is pending for a trial on the merits in the future.
Abbot and the State of Texas appealed Judge Ezra’s granting of the preliminary injunction to the U. S. Fifth Circuit Court of Appeals and requested a stay of Judge Ezra’s injunction pending resolution of the appeal. The U. S. Fifth Circuit Court of Appeals granted Texas’ request for a stay of Judge Ezra’s injunction and has now affirmed Judge Ezra’s preliminary injunction, lifting the previously issued stay.
The U. S. Fifth Circuit Court of Appeals majority opinion on the floating marine buoy barrier appeal found that the U. S. Government had established that it is likely to succeed on the merits, that it is likely to suffer irreparable harm in the absence of a preliminary injunction, that the balance of equities tips in its favor, and that the preliminary injunction is in the public interest, affirming Judge Ezra’s preliminary injunction.
The Fifth Circuit majority opinion held that the United States showed a likelihood of success on the merits having established that the marine floating barrier was constructed on a navigable river, the Rio Grande, without the consent of Congress and that the construction of the marine floating barrier was done without the authorization of the U. S. Army Corps of Engineers.
The Fifth Circuit also held that the marine floating barrier was an obstruction on the navigable capacity of the Rio Grande waterway, citing Texas’ “designed and deployed the floating barrier to literally obstruct lateral movement across the river.”
In addition, the Fifth Circuit found that the marine floating barrier was a “boom” or “other structure” under the HRA that “interferes with or diminishes” navigation on the Rio Grande by “requiring vessels must navigate around the barrier, and some may even be thwarted by its presence.”
The Fifth Circuit noted Judge Ezra in his preliminary injunction found that “the evidence…did not show that the floating barrier had any meaningful impact on deterring any perceived ‘invasion,’ so its removal is unlikely to cause Texas irreparable injury.”
Furthermore, the Fifth Circuit agreed with Judge Ezra finding that the United States demonstrated “that irreparable injury is likely in the absence of an injunction” because the marine floating barrier threatened 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 the allocation of waters in the Rio Grande; that a meeting of the IWBC was cancelled due to the presence of the floating barrier; and the floating barrier posed a risk to human life, which is supported by Texas’s own statements noting the treachery of venturing across the Rio Grande.”
The Fifth Circuit noted that the marine floating barrier “has been the subject of a series of correspondence from the Mexican section of the IWBC” and is “interfering with the ability of the IWBC to fulfill its mission.” The Court added that Mexico’s Section of the IWBC “objected to the placement of the buoys and requested intervention of the United States Section to remove the buoys,” cancelling a July 24, 2023 meeting concerning water releases to the United States from the Rio Concho River in Mexico, citing Texas’s unilateral actions “could affect cooperation between the two countries going forward.”
The Fifth Circuit noted that the United States and Mexico are currently working on an agreement by December 2023 establishing a “new mechanism to improve the predictability and reliability of Rio Grande water delivery from Mexico to the United States and discussions are at a sensitive stage,” causing Mexico to rethink and rethink its cooperation with the United States. Consequently, Texas’s marine floating barrier deployment on the Rio Grande could cause “a breach of treaty obligations…to Mexico and constitute an equal injury and wrong to the people of the United States.”
The Fifth Circuit added that Mexico protested to the United States since early June 2023 concerning the installation of the marine floating barrier by Texas and requested it not be allowed to be built on the Rio Grande in violation of international treaties between the two countries. On August 12, 2023, in a meeting between U. S. Secretary of State John Blinken and Mexico’s Foreign Secretary Alicia Barcena the first issue raised by Mexico was the marine floating barrier deployed by Texas.
On July 24, 2023, U. S.-Mexico Border Coordinator at the U. S. Department of State and acting Dircector of the Office of Mexican Affairs, declared that if the marine floating barrier “is not removed expeditiously, its presence will have an adverse impact on U. S. Foreign policy,” and that Mexico “on a number of occasions beginning in late June, 2023 has protested to the United States the deployment of a floating barrier, ‘asserting that it causes obstruction and deflection of the river as well as possible runoff into Mexican territory in contravention of the provisions of the 1970 Treaty.”
The Fifth Circuit also noted that Mexican President Andres Manuel Lopez Obrador has discussed at least six times in his daily press conference the matter of the marine floating barrier deployed by Texas, signaling Mexico’s objection to it.
The Fifth Circuit found that a balance of equities and the public interest favors the United States the preliminary injunction be affirmed, noting that “there is no question that this power to remove the obstruction to interstate and foreign commerce is superior to that of the States to provide for the welfare or necessities of their inhabitants.”
Governor Abbot and the State of Texas have filed a Motion for Rehearing before the full Fifth Circuit Court of Appeals of the December 1, 2023 decision by the three judge panel. Abbott has stated that he plans to appeal this case all the way to the U. S. Supreme Court , if necessary. Meanwhile, Texas taxpayers are paying for Abbott and Texas’s legal fees and court costs incurred in this protracted adverse litigation strategy against the United States Government. Abbott’s controversial Operation Lone Star unilateral actions against the United States Government to date have not fared well with the Courts.
The marine floating buoy barrier has razor sharp serrated teeth between them to harm or injure anyone attempting to cross over them while floating on the Rio Grande River. Photo Copyright 2023 Eagle Pass Business Journal, Inc.
The marine floating marine buoys with their lethal razor sharp serrated teeth await installation on the Rio Grande River at the City of Eagle Pass, Texas Shelby Park in July 2023. Photo Copyright 2023/Eagle Pass Business Journal, Inc.
