Fifth Circuit panel denies Texas appeal on marine buoy barrier lawsuit, state to appeal

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Migrants navigate around concertina wire along the banks of the Rio Grande after crossing from Mexico into the U.S., Tuesday, Aug. 1, 2023, in Eagle Pass, Texas. Concertina wire and newly place buoys being used as a floating barrier, are making in more difficult and dangerous to cross the Rio Grande. Eric Gay | AP

By Bethany Blankley | The Center Square contributor

Two of three judges on a Fifth Circuit Court of Appeals panel sided with a lower district court and required Texas to move back its marine barriers closer to its shoreline. Texas is appealing to the full court. 

The panel’s ruling reversed its previous ruling in September, which stayed the lower court’s ruling until it was able to hear the merits of the case. Once it did, it ruled against Texas. 

There are several lawsuits related to Texas border barriers. This Fifth Circuit ruling relates to the federal government suing Texas after Gov. Greg Abbott installed marine barriers in Eagle Pass, Texas, in July to respond to an ongoing surge of illegal border crossers in the area. A district court first ruled on the case, ordering Texas to move the marine barriers closer to its shoreline, which The Center Square first reported. Confusion about the case resulted from multiple news outlets misreporting that the court ordered Texas to remove the buoys altogether. Texas appealed the district court’s ruling and the Fifth Circuit stayed the ruling until it heard the case and reversed it.

A separate lawsuit was filed by a local Eagle Pass kayaking company over the marine barriers in an attempt to end Abbott’s border security mission, Operation Lone Star. 

A third lawsuit was filed by Texas against the Biden administration after Border Patrol agents destroyed Texas’ OLS concertina wire barriers in Eagle Pass. Texas just lost its latest district court ruling in that case and appealed it to the Fifth Circuit. 

In Friday’s ruling, Fifth Circuit Judge Dana Douglas wrote for the majority that “the district court did not abuse its discretion.”

The ruling put back in place the district court order, which issued a preliminary injunction requiring Texas to “cease work on the barrier and shift it to the Texas riverbank.” 

Fifth Circuit Judge Don Willett dissented, saying, “I disagree and would vacate the injunction entered by the district court, as the United States has failed to carry its burden on any of the four preliminary injunction factors.”

The lower court affirmed the Biden administration’s position that Texas’ marine barrier “is an obstruction to the navigable capacity of the Rio Grande River and required authorization from Congress” and “is a structure in a navigable water of the United States, and thus required a permit from the Army Corps of Engineers.”

Abbott disagreed in his opposition to the lawsuit, explaining this analysis “misses the mark. In that statute, Congress decreed that ‘it shall not be lawful to build . . . any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any . . . water of the United States.’

To state the obvious, that statute does not describe any action by the State of Texas.”

Willett agrees with Abbott’s assessment, explaining that “the United States’ claim under § 10 of the Rivers and Harbors Act (RHA) is unlikely to prevail. Both the district court and the majority opinion cite inapplicable statutes, treaties, cases, and other evidence to argue that this segment of the Rio Grande is navigable and thus subject to the RHA. But the district court’s erroneous navigability finding—and the majority’s affirmance—cannot be squared with a century-plus of precedent.” 

He also explained, “The United States also falls short on the three other preliminary injunction factors. It is entirely unclear how the preliminary injunction— which orders the barrier to be moved, but not removed (as Mexico demands)—remedies the United States’ diplomatic harms. And as for the balance of the equities and public interest, the United States offers no substantiated record evidence that could justify a preliminary injunction.”

Texas is appealing to the full 5th Circuit, asking the full court to hear the case.

In response to the ruling, Gov. Abbott said Friday night, “The 5th Cir. Court of Appeals’ denial of Texas’ sovereign authority to secure the border with floating marine barriers is clearly wrong.”

He said he and Attorney General Ken Paxton “will seek an immediate rehearing by the entire court. We’ll go to SCOTUS if needed to protect Texas from Biden’s open borders.”

The lawsuits and Texas’ commitment to securing its border comes after over 1.9 million people illegally entered Texas alone in fiscal 2023, the highest number in recorded history.

After the Texas Legislature has allocated over $10 billion of Texas taxpayer money to fund border security efforts and continues to pass border security bills in support of Abbott’s OLS to mitigate ongoing border-related crimes.

Republished with the permission of The Center Square.