A federal appeals court on Friday ruled that Texas must remove a series of buoys in its river border with Mexico that had generated a wave of backlash from immigration advocates and Democratic lawmakers.
In a 2-1 decision, a panel of the 5th Circuit Court of Appeals rejected Texas’ request to overrule a federal district judge, who ordered the state in September to remove the controversial barrier. Judge Dana Douglas, an appointee of President Joe Biden, wrote in the panel’s majority opinion that the district judge had appropriately “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.”
Texas Gov. Greg Abbott first deployed the barrier — a roughly 1,000-foot stretch of orange spherical buoys connected by heavy metal cables, complete with an anti-dive net beneath it — in early July and subsequently claimed that it had deterred thousands of people from crossing. The Department of Justice sued the state, arguing that it obstructed U.S. waterways in violation of federal environmental law.
In September, U.S. District Judge David A. Ezra, an appointee of Ronald Reagan, ruled that the buoys likely obstructed the flow of the Rio Grande in a way that required congressional authorization. That reasoning derives from an 1899 law called the Rivers and Harbors Appropriation Act, which requires federal approval for obstructions built in navigable waters.
Abbott said the circuit court’s decision was “completely wrong” and that he and Texas Attorney General Ken Paxton would seek an immediate en banc hearing — which, if granted, would convene all the court judges to rehear the case.
“We’ll go to SCOTUS if needed to protect Texas from Biden’s open borders,” the governor wrote on X, the platform previously known as Twitter.
The 5th Circuit, considered the most conservative appeals court in the country, placed a temporary stay on the district judge’s decision shortly after it was issued as it further evaluated the case.
The buoys generated an uproar from the state’s Democratic lawmakers and human rights advocates, which argued that it threatened the lives of migrants who were crossing the river to seek asylum. Texas state troopers found a dead body lodged in the buoys in early August, and the Mexican government has also criticized the buoys, arguing that they violated international water rights.
The barrier is part of Abbott’s larger sweeping state-led program dubbed Operation Lone Star. His project, which has proceeded for more than two years, aims to unleash state administrative power to curtail the flow of migrants into Texas in the face of what he and other Republicans argue is a failure of the Biden administration to secure the border.
The governor and his Republican allies say that the barrier remains a vital defense to an uncontrollable influx of migrants crossing the barrier. In court, his legal team has also pressed an argument that the Rio Grande is not navigable, since it lacks commercial traffic, which would thus make federal authorization under the aforementioned law for obstructing a regulated waterway unnecessary.
“Curiously, the district court tried to spin the river’s naturally treacherous conditions as evidence that the barrier is dangerous. The majority opinion also makes that logical leap, but I cannot,” Judge Don Willett, a Donald Trump appointee, wrote in a dissenting opinion. “More than a century of precedent points to only one conclusion: This 1,000-foot segment is not navigable.”
