Judge orders Texas to remove floating barriers aimed at discouraging migrants from entering US

AUSTIN, Texas — Gov. Greg Abbott and the state of Texas must remove — at least temporarily — the buoys placed in the Rio Grande as part of the state's effort to control the border with Mexico, a federal judge ruled Wednesday, marking a win for the Biden administration.

In his 42-page order, Senior U.S. Judge David Alan Ezra said he made the ruling after deciding that the U.S. Justice Department will "likely succeed on the merits" in the lawsuit it filed against Abbott and the state in July.

"Texas’s floating barrier is an obstruction to the navigable capacity of the Rio Grande River and required authorization from Congress," Senior U.S. Judge David Alan Ezra says in his order.

The governor ordered the 1,000-foot string of oversized orange floating devices placed in the international river near Eagle Pass ostensibly to help discourage migrants from entering Texas without legal authorization and to combat cross-border drug trafficking.

In a statement Wednesday, Abbott said the state will appeal the ruling.

"Today's court decision merely prolongs President Biden’s willful refusal to acknowledge that Texas is rightfully stepping up to do the job that he should have been doing all along," the governor said on X, formerly known as Twitter. "This ruling is incorrect and will be overturned on appeal."

In challenging Texas’ use of the buoys, the Justice Department accused the state of putting a barrier on the international boundary without permission. The Biden administration also said the water barrier raised humanitarian and environmental concerns.

“We are pleased that the court ruled that the barrier was unlawful and irreparably harms diplomatic relations, public safety, navigation, and the operations of federal agency officials in and around the Rio Grande,” Associate Attorney General Vanita Gupta said in a statement.

Texas governor installed buoys without federal approval

Abbott has stated explicitly that he did not seek federal authorization before issuing his directive as part of his border-enforcement plan he calls Operation Lone Star.

The Justice Department's suit contends that the move violates Section 10 of the U.S. Rivers and Harbors Act of 1899, which says the U.S. Army Corps of Engineers must sign off on any plans to place a wharf, pier, boom breakwater, bulkhead, jetty or other structures in navigable waters.

During a hearing in August, lawyers for Abbott and the state argued that the buoy chain was not an obstruction and that the section of the Rio Grande was not navigable because it was too shallow and narrow.

Ezra determined otherwise.

His ruling cites the Code of Federal Regulations, which states "navigable waters of the United States are those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce."

TEXANS REPLY TO BUOY BARRIERS:Texas Gov. Abbott installing buoy barrier along Rio Grande; opponents decry 'dangerous stunt'

Buoys part of governor’s Operation Lone Star

Last month, Abbott held a news conference with fellow Republican governors where he defended the buoys, claiming that the main reason for the barrier was that Biden was "not doing his job" and had abandoned the border.

Abbott said 15 governors had deployed military personnel to assist with Operation Lone Star. Among them are South Dakota, Nebraska, Oklahoma and Iowa. 

The buoy barrier is one part of Abbott’s Operation Lone Star, a border control program launched in March 2021. The total estimated cost for the operation is about $4 billion, and the price for the first segment of the buoy barrier at Eagle Pass was expected to cost $1 million, USA TODAY reported.

In addition to the string of buoys, Texas has installed miles of razor wire along the banks of the Rio Grande to deter unauthorized crossings. Migrants, including many children, have been trapped and slashed by the wire. 

Texas has also deployed shipping containers along the river at Eagle Pass and El Paso, which the governor described as a steel wall along the southern border.

Arizona to pay $2.1 million over DOJ shipping container wall lawsuit

Texas is not the only state to install makeshift walls along its border. Last year, former Arizona Gov. Doug Ducey stacked thousands of shipping containers to build a border wall.

In December 2022, the U.S. Department of Justice sued Arizona, Ducey, and other state officials over the wall, saying that the land where the containers were placed could only be used by Arizona if the state received federal authorization, which they had not.

The lawsuit also alleged that "the hundreds of double-stacked multi-ton shipping containers" damaged federal lands, threatened public safety, and hindered the abilities of federal agencies to do their jobs. Under pressure from the lawsuit, Ducey agreed to dismantle the wall in late December.

Arizona has agreed to pay the U.S. Forest Service for additional remediation efforts, according to a joint status report filed by the federal government, Arizona, and the Center for Biological Diversity.

The agency sent a bill for about $2.1 million to Arizona on Aug. 22, according to the state’s Division of Emergency Management. Once Arizona has paid the outstanding bill, the federal government and state expect the cases to be dismissed, the joint status report said.

Next steps in Texas legal battle

The ruling Wednesday comes ahead of a trial on the lawsuit, which has not yet been scheduled. It prohibits the state "from building new or placing additional buoys, blockades, or structures of any kind in the Rio Grande River pending final judgment in this matter," the judge said in his order.

Ezra gave Texas until Sept. 15 to "reposition" the buoys at its own expense and to work with the Corps of Engineers on the project.

Contributing: The Associated Press