An attorney representing Texas asserts that the state has the right to defend itself from ‘invasion.’
The legal battle over the 1,000-foot floating barrier on the Rio Grande has taken a new turn.
Last summer, Texas Governor Greg Abbott ordered the deployment of giant orange buoys in the river near Eagle Pass as part of Operation Lone Star. The initiative aimed to reduce illegal border crossings from Mexico into Texas. The buoys are anchored to the riverbed and rotate to prevent people from climbing over or swimming under them.
During the hearing before the full 17-member Fifth Circuit, both Texas and the U.S. Department of Justice focused on whether the floating wall violates a Reconstruction-era law governing waterways.
The Rivers and Harbors Appropriation Act of 1899 prohibits creating obstructions in navigable waters without congressional approval and U.S. Army Corps of Engineers permission. Texas argued that the Rio Grande is not subject to this law, as the river is too rocky and shallow to be considered navigable.
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Lanora Pettit, the principal deputy solicitor general of Texas, stated, “For most of its length and much of its storied history, the Rio Grande has been little more than a creek with an excellent publicist.” She argued that the river does not meet the criteria of a navigable waterway under the 1899 Act.
Pettit further explained that the Act historically applies to waterways serving as interstate commerce arteries, which the Rio Grande does not due to its rocky and shallow nature. She emphasized that the water depth is only about 18 inches in the area where the buoys were placed, due to irrigation.
Representing the Justice Department, attorney Michael Gray urged the judges to uphold the district judge’s ruling that the Rio Grande is historically navigable. He cited ferry traffic and patrol boat usage as evidence of navigability.
Gray also argued that the floating wall interfered with Border Patrol operations and response times, highlighting the importance of maintaining safe passage on the river.
The attorneys also briefly discussed whether the barrier is a constitutional means of self-defense against invasion.
The Fifth Circuit judges have not indicated when a ruling will be made.
Additionally, the Fifth Circuit is handling another dispute between Texas and the U.S. government regarding Shelby Park, a public park in Eagle Pass used as a processing area for illegal immigrants. Texas National Guard soldiers deployed by Governor Abbott have taken control of the park, leading to further tensions between the state and federal authorities.
Governor Abbott criticized the federal government for suing Texas over its actions to secure the border, stating that the government has broken the compact between the United States and the states.
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