Texas’ floating barrier in the Rio Grande can stay for now, appeals court says

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The Fifth Circuit Court of Appeals on Tuesday ruled that the floating barrier Texas deployed in the Rio Grande last year to deter illegal migration could remain. The fight over the barrier is one of many broader, hard-fought legal and political battles over the state’s authority to control the flow of migrants at the border.

The ruling by the full circuit court strikes down a lower court’s ruling and reverses a decision by a subset of the Fifth Circuit Court. The back and forth so far has been about the likelihood that the federal government will win its argument and the validity of a preliminary injunction ordering the barriers removed.

The text of the decision was released by the court Tuesday evening, but then appeared to have been taken down shortly after.

The lawsuit will soon be argued in district court, which will rule on the merits of the federal government’s claims.

Here’s what you need to know

The background: Texas began deploying chains of specially designed buoys down the middle of the Rio Grande near Eagle Pass to deter migrants from crossing illegally in June 2023, sparking protests from migrant activists and from the Mexican government. The barrier was rolled out as part of Operation Lone Star, Gov. Greg Abbott’s multibillion dollar effort to counter illegal immigration along the 1,200-mile southern border.

Texas spent $850,000 on the barrier, which is made up of a 1,000-foot-long string of buoys separated by saw blades supporting a submerged mesh net.

Why the federal government sued: In July 2023, the U.S. Justice Department sued Texas in an Austin federal court, arguing that the barrier was a safety hazard that violates international treaties, harms relations with Mexico and was installed without necessary authorization from the U.S. Army Corps of Engineers, which regulates activities in waterways and wetlands under federal law.

Because Texas installed the barrier “without seeking the Corps’ authorization, the Corps and other relevant federal agencies were deprived of the opportunity to evaluate risks the barrier poses to public safety and the environment, mitigate those risks as necessary through the permitting process, and otherwise evaluate whether the project is in the public interest,” the federal government’s lawsuit said.

The federal government also alleged that the floating barrier obstructs navigation on the river, and demanded that the state remove the barrier.

What Texas said: Abbott defended his decision to deploy the barrier as the “commander-in-chief of our State’s militia,” and he blamed the Biden administration’s immigration policy for the conditions at the border. Texas argued that the barrier was designed to direct migrants to appropriate entry points and deter unlawful crossings and drug smuggling.

The state’s lawyers argued in court documents that the barrier is not a structure that required authorization. They also said that the state notified proper authorities by briefing the international body that regulates the Rio Grande before the barrier was installed.

What has happened in court so far: On Tuesday, the Fifth Circuit Court of Appeals ruled that the barrier could remain in the Rio Grande. The decision reversed an earlier ruling in December that affirmed a lower court’s decision to grant a preliminary injunction against the barrier as requested by the federal government.

In Tuesday’s decision, the court ruled that the preliminary injunction should not have been granted, finding that the federal government is not likely to prove during trial that the barrier was placed in a “navigable” stretch of the Rio Grande and thus that Texas violated federal law.

“The barrier is not within navigable water,” the court’s opinion said.

Earlier, in the December 2-1 decision, a panel of the Fifth Circuit Court of Appeals ordered Texas to remove the barrier. The panel found that the barrier was placed in a “navigable” part of the river, meaning Texas needed to receive permission from the U.S. Army Corps of Engineers before deploying the barrier.

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