Federal appeals court to hear Texas marine barrier case

The full Fifth Circuit U.S. Court of Appeals has agreed to hear the case over Texas’ marine barriers seven months and multiple court rulings after the Biden administration first sued last July.

The full court agreed to the rehearing of the case after a panel of three judges last month upheld a district judge’s order requiring Texas to move back, not remove, its marine barriers from the middle of the Rio Grande River closer to Texas’ riverbank.

A two-paragraph statement from all Fifth Circuit judges states, “A member of the court having requested a poll on the petition for rehearing en banc, and a majority of the circuit judges in regular active service and not disqualified having voted in favor, to hear this case en banc, IT IS ORDERED that this cause shall be reheard by the court en banc with oral argument on a date hereafter to be fixed.”

The judges also vacated last month’s ruling, effectively staying any order to move back the buoys.

According to a notice from the court’s clerk, appellants have until Feb. 16 to file briefs. Appellees have until March 18. The case will be heard sometime during the week of May 2024, the clerk said.

This is one of three lawsuits related to Texas barriers in the Eagle Pass area. One lawsuit filed over Texas’ concertina wire barriers is currently before the U.S. Supreme Court. Another lawsuit was filed by a kayaking company over the marine barriers in an attempt to stop Gov. Greg Abbott’s border security mission, Operation Lone Star.

Last July, the Department of Justice sued Texas after Abbott ordered the marine barriers to be installed in the Rio Grande River south of Eagle Pass. The DOJ argues the floating barrier was constructed without federal authorization as required under the Rivers and Harbors Act and creates a humanitarian threat. It also wants the court to order Texas to stop installing any additional marine barriers and remove them altogether.

Abbott argues the president’s failure to secure the border and violating his constitutional oath left him “no other choice” but to implement border security measures. He also pointed to the city of Eagle Pass, as well as 58 counties that issued disaster declarations citing the border crisis, as a reason for his actions. At least 50 counties have also declared an invasion, citing the border crisis.

In response to the lawsuit when it was first filed, Abbott reiterated what he told President Joe Biden in El Paso, Texas, one year ago: “All of this is happening because you have violated your constitutional obligation to defend the States against invasion through faithful execution of federal laws.”

He also said the DOJ didn’t appear to understand the law it was citing to sue Texas. Section 10 of the Rivers and Harbors Act, which the DOJ alleges Texas is violating, states, “it shall not be lawful to build . . . any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any . . . water of the United States,” which Abbott says, “does not describe any action by the State of Texas.”

Texas began the Rio Grande initiative to prevent illegal entry on state land between ports of entry as the state bore the brunt of illegal entry for years. But in fiscal 2023, a record 1.9 million foreign nationals entered Texas, the highest in state and U.S. history. To respond to unprecedented crime accompanying illegal entries, the Texas Legislature has now allocated more than $11.5 billion toward Texas border security efforts, including allocating funding for Texas to build its own wall.

In September, a federal judge ruled on the federal marine barrier case, ordering Texas to move them closer to the riverbank, not remove them, as was widely misreported. The lower court affirmed the Biden administration's position that Texas' marine barrier "is an obstruction to the navigable capacity of the Rio Grande River and required authorization from Congress" and "is a structure in a navigable water of the United States, and thus required a permit from the Army Corps of Engineers."

Texas appealed, and within 24 hours the Fifth Circuit stayed the lower court’s ruling until it could hear the merits of the case. Once it did, a panel of three judges ruled against Texas. On Dec. 1, Fifth Circuit Judge Dana Douglas wrote for the majority that "the district court did not abuse its discretion."

The ruling put back in place the district court order, which issued a preliminary injunction requiring Texas to "cease work on the barrier and shift it to the Texas riverbank."

The Fifth Circuit’s ruling on Wednesday stays that order and enables the full court to hear the case. Depending on how the court rules, either Texas or the DOJ is expected to appeal to the Supreme Court.