5th Circuit rules Rio Grande buoys must be moved pending outcome of federal lawsuit

The 5th U.S. Circuit Court of Appeals on Friday upheld a lower court ruling that Texas must move its chain of buoys in the Rio Grande near Eagle Pass to its side of the river pending the outcome of the federal lawsuit against Gov. Abbott and the state.

The appeals court's action restores the order issued in September by Senior U.S. Judge David Alan Ezra that requires the oversized buoys that stretch about 1,000 feet to be taken from the center of the river. When he issued his order, Ezra said the U.S. Justice Department had demonstrated that it was likely to prevail in its argument that the placement of the floating barriers in the international river without the consent of Army Corps of Engineers violates the U.S. Rivers and Harbors Act.

More: Judge in federal lawsuit over buoys in Rio Grande says politics will not affect his rulings

The 5th Circuit's panel, with one member dissenting, agreed.

"As the United States argues, all the structures listed in Section 10 (of the Rivers and Harbors Act) are built in water and tend to be obstacles or obstructions to navigation," the unsigned ruling states. "In other words, these structures are all tangible objects that 'interfere with or diminish' navigation by requiring vessels to move around them."

Gov. Greg Abbott, who is named with the state of Texas as a defendant in the court action, ordered the buoys to be placed in the Rio Grande as part of his multibillion-dollar border security initiative known as Operation Lone Star. Abbott has said the chain, which is anchored with giant concrete blocks resting on the riverbend, cannot be climbed over or swum under and therefore will deter unlawful crossings into Texas.

Abbott has said he issued the order placing the barriers in the river without seeking a go-ahead from the Corps of Engineers because he has a constitutional right to protect Texas from an "invasion."

In his ruling, Ezra expressed skepticism on that claim, and the 5th Circuit backed him up.

"The evidence before the district court 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," the appeals court ruling states.

In his dissent, 5th Circuit Judge Don Willett said the Justice Department failed to demonstrate that the narrow and shallow stretch of the Rio Grande were the buoys were placed is navigable, so it should not be covered by the Rivers and Harbors Act.

"The majority opinion and the district court overlook this well-settled law and distort the test for navigability," wrote Willett, a former justice on the Texas Supreme Court. "Despite the majority’s and district court’s many attempts to argue otherwise, the United States has not shown that it will likely prevail in demonstrating that these 1,000 feet were historically used or susceptible of use in interstate or foreign commerce and thus historically navigable."

It a social media post, Abbott vowed to continue to appeal the matter to the Supreme Court.

"The 5th Cir. Court of Appeals’ denial of Texas’ sovereign authority to secure the border with floating marine barriers is clearly wrong. AG Paxton & I will seek an immediate rehearing by the entire court," the governor said on X, referencing Attorney General Ken Paxton. "We’ll go to SCOTUS if needed to protect Texas from Biden’s open borders."

The ruling does not settle the case. A trial must still be held in Ezra's court in Austin where each side can present evidence supporting its argument.

This article originally appeared on Corpus Christi Caller Times: 5th Circuit: Buoys in Rio Grande must be moved pending outcome of suit