5th Circuit orders Texas to remove buoys from Rio Grande

A federal appeals court upheld a lower court ruling Friday ordering Texas to remove a series of buoys installed in the waters of the Rio Grande, finding the state violated laws governing navigable waterways by placing the barriers along the U.S.-Mexico border.

In affirming an earlier ruling, the 2-1 decision from the 5th U.S. Circuit Court of Appeals found the lower court properly 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.”

The floating buoys cover 1,000 feet in the Rio Grande with anchors in the riverbed. They are arranged in a chain stretching up- and down-river, each separated by a rounded blade with serrated edges similar to a circular saw.

The buoys were put in place around July 10, installed just days after four migrants, including an infant, drowned trying to cross the river. In August, authorities found a body floating near the buoys.

The decision, written by Judge Dana Douglas, a President Biden appointee, noted that the risk the buoys pose to migrants “is supported by Texas’s own statements noting the treachery of venturing across the Rio Grande.”

The lower court ruling was deeply critical of Texas’s arguments to defend the installation, in particular the idea that the state is allowed any means to respond to any act it considers an “invasion.”

The buoys were first installed under Operation Lone Star, something Gov. Greg Abbott (R) said was necessary to counter inaction at the border on the federal level.

“Governor Abbott announced that he was not ‘asking for permission’ for Operation Lone Star, the anti-immigration program under which Texas constructed the floating barrier,” District Judge David Alan Ezra wrote.

“Unfortunately for Texas, permission is exactly what federal law requires before installing obstructions in the nation’s navigable waters.”

Ezra’s command to remove the buoys, however, was administratively stayed by the 5th Circuit, pending further arguments.

In a dissenting opinion, Judge Don Willett, an appointee of former President Trump, said history of activity along the Rio Grande was not “extensive” enough for the waters to be considered navigable.

“Without sufficient evidence of past use or susceptibility to use in commerce along this 1,000-foot Rio Grande segment, there can be no finding of historical navigability,” he wrote.

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