AUSTIN, Texas (CN) — The United States Department of Justice faced off against the state of Texas in an Austin federal courthouse Tuesday over buoys placed in the Rio Grande to deter unlawful entry into Texas at the order of Republican Governor Greg Abbott.
As part of a lawsuit the Biden administration filed last month, the Justice Department is seeking to enjoin Abbott from constructing or maintaining structures in the river, arguing that the floating divider violates the Rivers and Harbors Act, which requires all construction projects in U.S. waters to obtain a permit from the Army Corps of Engineers.
Tuesday’s hearing focused on whether the 1,000-foot barrier should be removed from the river pending the outcome of the case.
U.S. District Court Judge David A. Ezra, a Ronald Reagan appointee, had the parties skip opening arguments and dive straight into witness testimony at the preliminary injunction hearing.
Assistant United States Attorney Landon Wade called the Justice Department's first witness, Joeseph Shelnutt, a regulatory project manager with the U.S. Army Corps of Engineers' Fort Worth Division.
Shelnutt traveled to the border, just outside of Eagle Pass, to conduct a site investigation after the International Boundary and Water Commission, which manages water and border issues between the U.S. and Mexico, filed a complaint with the federal government.
He determined that the barrier violated the Rivers and Harbors Act because it obstructed the navigation of the river, and deemed the area a navigable waterway, citing a list maintained by the U.S. Army Corps of Engineers.
Patrick Sweeten, general counsel for the governor's office, pushed back. Pointing to a 1975 study conducted by the Corps of Engineers, he said said that because the section of the river is difficult to traverse by boat, it's at odds with the definition of a navigable waterway, and that the buoy's presence was not a violation of the statute.
The court also heard testimony about the buoys' impact on relations between the U.S. and Mexico.
Hillary Quam, U.S.-Mexico border affairs coordinator for the State Department, said the barrier has been of much concern to Mexican officials, materializing into frustrations and harmed talks between the two nations over water obligations.
The tensions may ultimately have an impact on Texans.
“An issue like this distracts from the bi-national agenda,” said Quam. “Mexico won’t be there [for the U.S.] on other issues as long as this issue persists.”
During cross-examination, Sweeten attempted to ask Quam about other issues both countries face, like unlawful travel, the transport of illicit substances and human trafficking. The approach led to a lengthy exchange, prompting objections by Justice Department attorneys, which Judge Ezra sustained for being outside of the scope of the proceeding.
“This case is to determine whether [the area where the buoys are deployed] is a navigable waterway,” Ezra reminded the state’s counsel. “We are going to stay with the issue here.”
After the Justice Department's final witness, the state called its only witness, Loren Flossman, a project manager for Cochrane, the company that manufactured and oversaw the installment of the floating barrier.
Flossman provided details as to the construction of the buoys and how they work to prevent crossings. Through Flossman’s testimony David Bryant, special counsel at the Texas attorney general’s office, sought to address recent allegations that the barrier had drifted onto the Mexican side of the river.
Speaking confidently, Flossman said that 68 concrete blocks, weighing 3,000 pounds each, and 70 additional concrete weights prevent the barrier from budging.
Judge Ezra concluded the preceding as he started: without traditional arguments. Instead of delivering closings during the hearing, Ezra asked the parties to submit a written version by 4:00 p.m. on Friday.
As the hearing wrapped up the judge gave a stern reminder that his conclusion in the case will be based solely on the law and not in furtherance of a political agenda.
“I am cognizant that this is not Congress and I am not the president,” said Ezra. “I have no intention in addressing political questions.”
The judge did not indicate when a decision may be released.
In addition to the buoys, Governor Abbott has ordered state law enforcement officials to deploy concertina wire and place shipping containers along the border to deter migrant crossings. Such measures began in 2021, when Abbott commanded members of the Texas National Guard and state troopers to the southern border to police the region, leading to hundreds of thousands of migrant apprehensions.
Texas has also bussed thousands of migrants from border communities to Democrat-led cities and states. The mobilization effort, dubbed Operation Lone Star, has become a source of contention between Abbott and the Biden administration.
Abbott has long argued that the border initiative is needed to address the inaction of the federal government to enforce federal immigration law.
Through its lawsuit against Abbott, the Justice Department is seeking the state be blocked from constructing or maintaining structures that do not adhere to the Rivers and Harbors Act.
If relief is granted the state would need to obtain a permit from the U.S. Army Corps of Engineers before deploying other structures like the floating barrier at the center of this dispute.
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