Yesterday, a federal judge ruled against Texas, directing the state to remove a floating barrier in the middle of the Rio Grande that was intended to keep migrants out of the US. This barrier was part of the aptly named “Operation Lone Star”, Texas’ plan to “secure the border” against migrants. According to Governor Greg Abbott, the state initiated this move without going through the process of seeking federal permission. Abbott had signed orders to deploy the National Guard to establish concertina wire on federal land and implemented a system of large orange buoys in the middle of the Rio Grande, which were separated by saws and secured by concrete anchors.
In July, the Biden administration challenged this move, filing a lawsuit in the Western District of Texas. The lawsuit argued that Texas’ barrier violates the Rivers and Harbors Appropriation Act of 1899 (RHA), which gives the federal government authority over barriers in navigable waters. Texas, however, contended that its system was not a barrier and that the Rio Grande isn’t navigable. They also argued that the barrier was a necessary measure in response to an invasion by dangerous migrants.
Republican allies of Abbott filed an amicus brief, with the interesting assertion that navigability is a subjective construct, referencing Genesis from the Bible to support their claim.
Judge David Ezra, nonetheless, ruled against Texas. Using unambiguous Supreme Court precedents, Ezra concluded that navigability does not cease to exist due to natural fluctuations in water levels nor because of severe actions such as damming and climate change. The court ordered the state to remove the barriers and relocate them closer to the shore, restoring the Rio Grande’s navigability. Furthermore, the judge expressed that Texas couldn’t wage war based solely on its discretion and no oversight.
The crux of Ezra’s argument was that permission was necessary according to federal law before obstructions could be placed in the nation’s navigable waters. He stated that the governor’s announcement for Operation Lone Star that he was ‘not asking for permission’ was unfortunate for Texas as this was exactly what federal law mandated.
However, Texas has already filed its appeal to the Fifth Circuit. The outcome depends on the panel’s decision which might see precedence given to Biblical water law. For now, the federal court order stands and the state has been directed to remove its “floating death trap” from the middle of the Rio Grande.