Appeals court rules against Texas' border buoy string
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McALLEN, Texas (Border Report) — The U.S. 5th Circuit Court of Appeals ruled Friday against the State of Texas’ placement of a string of border buoys in the Rio Grande in Eagle Pass, Texas.

In the 44-page ruling, the court ruled in favor of a preliminary injunction issued by a lower court to stop Texas from further constructing more marine barriers in the international river between the U.S. and Mexico.

A worker unloads large buoys deployed in the Rio Grande on July 7, 2023, in Eagle Pass, Texas, where border crossings continue to place stress on local resources. (AP File Photo/Eric Gay)

The court noted the strain that the 1,000-foot-long string of 4-foot-wide orange spherical buoys have put on U.S. and Mexican relations by having the objects tethered to the base of the Rio Grande. One hundred forty-three anchors are holding the buoys in place, including 68 that weigh about 3,000 pounds each and 75 that each weigh about 1,000 pounds, according to court documents.

The U.S. Department of Justice sued Texas and Gov. Greg Abbott after the state began the construction of the $1 million string in July. A lower court ruled against the buoys and issued a preliminary injunction, which the 5th Circuit ruled “was not an abuse of discretion, as the United States carried its burden.”

The Justice Department claims the buoys violate the Rivers and Harbor Act, as it obstructs the “navigable capacity” of U.S. water. The lawsuit also claims Texas did not obtain a prior permit from the U.S. Army Corp of Engineers as required by the act.

In September, the New Orleans-based 5th Circuit in an emergency order allowed Texas’ floating barrier to remain a day after a judge in Austin called the buoys a threat to the safety of migrants and ordered it removed.

The $1 million string of buoys seen Sept. 21, 2023, after being moved closer to the U.S. shore in Eagle Pass, Texas. (Sandra Sanchez/Border Report File Photo)

Mexico has protested against the marine barrier saying it violates an international water treaty with the United States. Mexican officials have said if the string is not removed then it could impact the country’s payment of water owed to the United States, which is needed downstream in communities along the Rio Grande Valley.

Mexico owes 1.75 million acre-feet of water to deliver to the United States for this five-year cycle, which began in 2020, according to the U.S. International Boundary and Water Commission, which oversees the Rio Grande.

Abbott says the 4-foot spherical buoys were put in the international river to deter illegal immigration as part of the state’s Operation Lone Star border security initiative.

The state had planned to construct more strings, but those were put on hold pending the litigation, Texas Department of Public Safety Director Steve McCraw told Border Report when Texas House Speaker Dade Phelan visited Eagle Pass on Oct. 24.

Migrants who crossed the Rio Grande from Mexico walk past large buoys being deployed as a border barrier on the river in Eagle Pass, Texas, Wednesday, July 12, 2023. (AP Photo/Eric Gay)

In August, the buoys were relocated closer to the U.S. riverbank, where Abbott told Border Report “is clear they are on the United States side, not on the Mexican side.” 

Friday’s 5th Circuit Ruling came a day after the State of Texas on Thursday appealed a federal judge’s ruling that will allow federal Border Patrol agents to take down border barrier wire that the state has put along the Rio Grande in places like Eagle Pass and El Paso.

A federal judge in Del Rio, Texas, on Wednesday, sided with U.S. officials who say Border Patrol agents must be allowed to remove the state’s concertina wire to reach migrants who are in the river.

Circuit Judge Don Willett, of the 5th Circuit, dissented in Friday’s circuit court ruling on the border buoys, writing: “The United States has failed to carry its burden on any of the four preliminary injunction factors.” Willett also commented on the “millions of illegal border crossings in recent years, accompanied by millions of pounds of smuggled drugs” and wrote that “the bright orange chain of tethered buoys — a floating border wall anchored to the riverbed by concrete blocks — is Governor Abbott’s latest effort to quell the record influx of illegal crossings, something he has declared an ‘invasion.’”

A spokesperson for the Department of Homeland Security told Border Report: “DHS welcomes the 5th Circuit Court of Appeals ruling. Enforcing immigration law is a federal responsibility and the U.S. Border Patrol is on the front lines enforcing the law by apprehending individuals who have crossed onto U.S. soil without authorization and applying immigration consequences. Border Patrol agents will also continue to perform the essential humanitarian work they do every day to respond to emergency situations and assist individuals in distress, and treat human beings with dignity.”

U.S. Rep. Joaquin Castro, a Democrat from nearby San Antonio, said of Friday’s ruling: “I applaud the Justice Department for today’s hard-fought victory in the conservative Fifth Circuit and look forward to seeing these death traps removed from the Rio Grande.”

Abbott posted Friday on X, the platform formerly known as Twitter, that the 5th Circuit’s ruling “is clearly wrong.”

He tweeted the state “will seek an immediate rehearing by the entire court” or possibly by the U.S. Supreme Court.

Aaron Reichlin-Melnick, policy council for the American Immigration Council, tells Border Report that the buoy string could remain in the water if Texas seeks a stay from SCOTUS or en ban from the 5th Circuit Court, which is a special procedure where all judges of a particular court hear a case.

Sandra Sanchez can be reached at SSanchez@BorderReport.com.

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