Federal Appeals Court Orders TX to Remove Buoys

Unlawful migrants walk by a string of buoys
Unlawful migrants walk by a string of buoys placed on the water along the Rio Grande border with Mexico in Eagle Pass, Texas | Image by SUZANNE CORDEIRO/Getty Images

The Fifth Circuit Court of Appeals ruled on Friday that Texas must remove its border buoys from the Rio Grande River that were placed to deter people from entering the United States unlawfully.

The 2-1 ruling upheld a preliminary injunction issued by a lower court in September, according to CNN.

U.S. District Judge David A. Ezra previously determined that the buoys likely obstructed the Rio Grande River and violated the Rivers and Harbors Appropriation Act of 1899 that required federal authorization for obstructions in navigable waters, as reported by Politico.

A panel of the Fifth Circuit Court agreed with Ezra in finding that the Rio Grande River is navigable and the floating barriers are an “obstruction,” per The Texas Tribune.

According to the panel’s findings, Texas would have had to receive permission from the U.S. Army Corps of Engineers to lawfully establish the floating barrier.

The appeals court decision stated that the lower court did not abuse its power in issuing the ruling since it “considered the threat to navigation and federal government operations on the Rio Grande, as well as the potential threat to human life the floating barrier created.”

“The district court’s factual findings were not clearly erroneous,” wrote Circuit Judge Dana M. Douglas, per NBC News.

Circuit Judge Don Willett wrote a dissenting opinion on the decision, stating that the section of the river with the floating barrier is not navigable.

Following the ruling, Gov. Greg Abbott posted a statement on social media claiming the decision was “clearly wrong.”

“AG Paxton & I will seek an immediate rehearing by the entire court,” added Abbott. “We’ll go to SCOTUS if needed to protect Texas from Biden’s open borders.”

Abbott reiterated these statements while appearing on Sunday Morning Futures With Maria Bartiromo, where he said that Texas plans to take further action on the case.

“What Texas is going to be doing, we will be seeking what’s called an en banc ruling by the entire district court of appeals, and if we lose there, we will be taking that to the United States Supreme Court because we know Texas has the right to legally deploy those buoys in the water to prevent people from entering our country and our state illegally,” the governor said.

The lawsuit from the Justice Department alleges that “Texas has flouted federal law by installing a barrier in the Rio Grande without obtaining the required federal authorization.”

“This floating barrier poses threats to navigation and public safety and presents humanitarian concerns. Additionally, the presence of the floating barrier has prompted diplomatic protests by Mexico and risks damaging U.S. foreign policy,” said Associate Attorney General Vanita Gupta, as previously reported by The Dallas Express.

Assistant Attorney General Todd Kim presented similar reasoning: “The Rivers and Harbors Act is clear in prohibiting the placement of any unauthorized barriers or obstructions in the Rio Grande and other navigable waters of the United States.”

Abbott pushed back on these claims while speaking with Bartiromo, stressing that the river is not navigable.

“With all due respect, the appeals court got it wrong. And the reason is because they relied upon a law more than 100 years old, saying that we could not deploy these buoys in the water, preventing people from entering the United States illegally, because the waterway is categorized as a navigable waterway. Which is absurd,” he said.

“Because it is not ‘navigable,’ by definition, when you have literally thousands of people able to walk across it every single day. It’s not used for transportation of boats up and down that riverway, and so it’s completely not navigable.”

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