Just over a year ago, Gov. Greg Abbott ordered a 1,000 foot long barrier of buoys to be anchored in concrete along the Rio Grande, in the waters between Eagle Pass, Texas, and Piedras Negras, Mexico.
The federal government quickly sued, arguing that the barrier violated the Rivers and Harbors Act of 1899. The feds argued that Texas failed to get permission from the U.S. Army Corps of Engineers to erect those buoys, and that this could hurt U.S. foreign policy.
This started a back and forth in the courts, and yesterday a full panel of the Fifth Circuit ruled that the federal government had failed to show that the stretch of river in question was navigable and therefore, at least for now, Texas can keep those buoys in the Rio Grande.
Governor Abbott declared “JUSTICE” on social media, but this decision is not likely to be the last word.
Aarón Torres, who covers state politics and the Austin bureau of the Dallas Morning News, said the final decision still hinges on an upcoming trial. The buoys were originally put in place, Torres said, during an uptick in migration over the southern border.
“As part of Operation Lone Star, (Gov. Abbott) wanted to try to find ways to curb the flow and stop the number of migrants crossing illegally into Texas. So he ordered the buoys to be put up in the Rio Grande in the area of Eagle Pass,” Torres said. “That was in June of last year, and the buoys started getting put up in July.”
The Fifth Circuit’s decision yesterday hinged on an injunction that a lower court had put in place ordering Texas to remove the buoys pending a full trial.
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“This case is not over. The trial is scheduled to start Aug. 6, which is next Tuesday. And this will be decided in a bench trial, by Judge David Ezra of the Austin division of the Western District of Texas,” Torres said.
“(It comes down to) if the United States is able to prove — or not — that this stretch of river is navigable. The Department of Justice could appeal this injunction to the Supreme Court if they wanted to. However, the buoys have been in place this entire time, in the river. So even with this legal back and forth, the buoys have been in place, so nothing really changes. And whatever happens at trial could lead to further appeals as well.”
Torres said immigration numbers have been down in recent weeks — to the lowest level of Biden’s presidency so far — but that has more to do with policy than barriers.
“With the asylum ban that was put in place by executive order by President Biden, we’ve seen the numbers of illegal crossings have gone down severely, and pretty dramatically, to the lowest point during the Biden administration,” Torres said.
“The buoys are along a stretch of the Rio Grande that does get some crossings, but it’s only 1,000 feet. There’s still other areas in Eagle Pass where the Rio Grande is. … Gov. Abbott, I think his plan was to have these buoys stretched along various portions for several miles along the Rio Grande.”
Torres said that the installation of the buoys does not seem to have had a direct impact on the number of people crossing the border.
“They were erected last July, and we remember in September of last year there was a massive wave of illegal crossings that caused the mayor of Eagle Pass to issue an emergency declaration, and he also signed an affidavit with the Texas Department of Public Safety authorizing arrests at a public park known as Shelby Park,” Torres said.
“And then December, again, there was a huge wave of crossings as well. So the buoys at that point were not proving to be a deterrent for migrants crossing illegally into Eagle Pass and overwhelming the city.”
