(CN) — Texas does not need a federal permit for a string of buoys it anchored in the Rio Grande because the river it is not navigable for commercial vessels, a state attorney told the Fifth Circuit on Thursday.
After deploying thousands of Texas National Guard soldiers and state troopers to South Texas and having them place shipping containers and deploy razor wire in the town of Eagle Pass on the banks of the Rio Grande, Governor Greg Abbott took his $9 billion immigrant-repulsion initiative Operation Lone Star into the river itself.
He had a contractor install a 1,000-foot chain of wrecking-ball-sized buoys, anchored by 140 tons of concrete blocks, in the middle of the river near Eagle Pass.
The Biden administration sued Abbott and Texas, claiming the structure violates the Rivers and Harbors Act of 1899 since the state did not get a permit from the U.S. Army Corps of Engineers to place them in the Rio Grande, a navigable U.S. waterway that is also the border between Texas and Mexico.
Senior U.S. District Judge David Ezra sided with the feds three weeks after an Aug. 22 hearing. He issued a preliminary injunction ordering Texas to move the buoys to its side of the river by Sept. 15 and to not place any more buoys, blockades or any kind of structures in it.
Despite numerous media reports that he had directed Texas to remove the buoys, he stopped short of that.
Nonetheless, Texas appealed to the Fifth Circuit and a panel of the New Orleans-based court imposed an administrative stay of Ezra’s order — sparing the Lone Star State from the arduous task of relocating the buoys — and fast-tracked the appeal.
Lanora Pettit, a Texas deputy solicitor general, focused on whether the section of Rio Grande is in fact navigable for commercial vessels Thursday in a hearing before another panel of the appellate court.
Absent a finding it can be used as a water-borne “highway of commercial traffic,” she claimed the federal government does not have jurisdiction over it.
“There is no dispute this piece of river is somewhere between 1.5 and 3 feet deep. The only evidence of actual watercraft in the water are airboats that are incapable of carrying commercial goods,” Pettit stated.
The depth is so low, Pettit noted, because the Rio Grande is controlled by a series of dams which divert the water for agriculture and drinking water for U.S. and Mexican farms and cities.
“For commercial navigation not only would you need more water,” Pettit continued, “you would need a 100 feet-wide channel, 9 feet deep. And at the moment, the river is more like 18 inches deep and it's rocky on the bottom. So, to get the necessary channel, you would not just need to dredge, you would need to blast a canal that’s five times the size of the Panama Canal and find enough water to fill it.”
Pettit argued that even if the Fifth Circuit agrees with Ezra the river stretch is navigable, the buoy string does not violate the Rivers and Harbors Act because it is not an obstruction.
“How do you define obstruction?” asked U.S. Circuit Judge Dana Douglas, a Joe Biden appointee.
Petitt said it needs to be permanent and significant. “Buoys are temporary. They are designed to be tactical and moved,” she stressed.
Justice Department attorney Michael Gray countered that the Rivers and Harbors Act gives Congress authority over rivers that are capable of being channels of commerce.
“And that can be shown by navigability in the past or the potential for it in the future,” he said.
He emphasized that Ezra’s ruling cited court cases from the late 1800s and early 1900s involving ferryboats transporting cotton between Eagle Pass and Piedras Negras, the Mexican city directly across the Rio Grande.
As for future navigability, Gray said instead of holding back the bulk of the river’s water behind dams for farming, Congress could decide to reprioritize it for navigation.
He also attacked Texas’ contention that the buoy system is not an obstruction.
He said it impedes navigation up and down the river because boat operators have to avoid it. And given there are obscured obstacles like sandbars and large rocks in the area, it is important boat pilots have access to the entire width of the river to observe these hazards.
Senior U.S. Circuit Judge Carolyn Dineen King, a Jimmy Carter appointee, asked Gray what he believes Texas’ purpose is for the buoys.
He replied, “Texas’ purpose for the structures is to block people from crossing the river. It is to obstruct cross-river —"
“That’s what they’re there for,” King cut in.
“That’s their entire reason for being, according to Texas. So I think it’s fair to say that they do so,” Gray said.
Pettit, Texas' attorney, also acknowledged moving the buoys is not easy when asked by Douglas if it is true that, according to the case record, it would take several weeks, heavy equipment and at least $300,000 to remove them.
Pettit conceded it would take a couple weeks to remove them. She added: "However, the evidence in the record is also that they are temporary and designed to be so."
U.S. Circuit Judge Don Willett, a Donald Trump appointee, was also on the panel. But he joined the hearing remotely and did not ask the attorneys any questions.
Per Fifth Circuit custom, the judges did not say when they would issue a ruling.
Neither side broached Texas’ claims that the buoys advance its rights under the U.S. Constitution’s “Invasion Clauses” to repel an invasion.
Abbott has issued disaster declarations for border counties struggling to shelter immigrants crossing into the state.
He has also asserted his power to repel an invasion “because the U.S. has unconstitutionally refused to protect Texas — and, more importantly, its citizens — against the dangers posed by transnational cartels,” Pettit wrote in a brief.
The buoys do not appear to be dissuading immigrants from wading across the river to Eagle Pass.
U.S. Customs and Border Protection said on Sept. 21 that in response to an increase in encounters of immigrants in the town, it had temporarily shut down an international railway bridge there so agents could focus on taking 2,500 people into custody for processing.
Despite Abbott’s incessant claims that Texas is a victim of President Joe Biden’s “open-border policies,” the president kept in place until May 11 a Trump-era pandemic-related policy by which the Department of Homeland Security expelled millions of newly arrived immigrants, some repeatedly, without giving them a chance to apply for asylum.
Biden also angered environmental and immigrant advocacy groups this week with Homeland Security’s announcement it had waived 26 federal laws, including the Clean Air Act, Safe Drinking Water Act and Endangered Species Act, to expedite construction of border wall in Starr County, Texas.
Follow @cam_langford
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
Additional Reads
-
Newsom’s ‘May revise’ trims budget to $288 billion May 10, 2024 -
