By Jonathan Ellett
FAIR
Recently, the full Fifth Circuit Court of Appeals ruled that Texas’s 1,000-foot string of floating buoys in the Rio Grande River can remain in place while the case is being decided.
The lawsuit regarding the buoys has been ping-ponging between the Fifth Circuit and the federal district court ever since Governor Abbott placed them in the Rio Grande in July 2023. Shortly after that, the Justice Department (DOJ) filed a lawsuit asking the court to issue a preliminary injunction and order Texas to remove the buoys. DOJ argued that Texas’ placement of the buoys violated Section 10 of the Rivers and Harbors Appropriation Act (RHA), which prohibits the “creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States.” Texas argued that Section 10 of the RHA did not apply in this case.
The question before the Fifth Circuit was therefore whether the portion of the Rio Grande occupied by the buoys was “navigable water.” The district court agreed with the DOJ that the part of the Rio Grande where the buoys were placed was navigable water and that Texas was required to obtain the prior approval from the federal government before placing them in the river. Since Texas had not received approval, the district court ordered Texas to move the buoys to the Texas shoreline. Texas appealed the decision. A three-judge panel of the Fifth Circuit affirmed the district court’s order.
Texas then petitioned for a rehearing in front of the entire Fifth Circuit, which was granted. On July 30, the Fifth Circuit held that the preliminary injunction ordering Texas to reposition the buoys was erroneously granted. In its decision, the Fifth Circuit noted that the DOJ had the burden of showing that it was likely to prevail on the merits of its claim that the buoys were placed in a navigable stretch of the Rio Grande. However, the Fifth Circuit ruled that the DOJ clearly did not carry that burden.
Texas also asserted that it could place the buoys in the river, even if the RHA prohibits it, pursuant to the invasion clause of the Constitution. Article 1, Section 10, Clause 3 of the Constitution says that “no state shall, without the consent of Congress… enter into any agreement of compact with another state or foreign power or engage in war unless actually invaded or in such imminent danger as will not admit delay.” However, since the Fifth Circuit found that the U.S. government did not meet its burden for the preliminary injunction, it declined to address the invasion argument, and noted that it was a nonjusticiable political question anyway.
The Fifth Circuit remanded the case back to the district court for a trial on the merits, which was initially scheduled to begin on August 6 but has been postponed until November. The district court judge who will preside over the trial, Judge David Ezra, acknowledged that the decision reached at trial will not be the final word in this matter. During a pretrial conference, he said, “This case will end up in the Supreme Court.”
