(CN) — An en banc panel of the Fifth Circuit Court of Appeals took up arguments once again on Wednesday in a case concerning the state of Texas’s deployment of a buoy barrier in the Rio Grande.
Initially placed in the river last summer near Eagle Pass, Texas, the 1,000-foot floating barrier was intended to deter migrants seeking to cross into the state, outside of a legal port of entry. The Justice Department was quick to intervene, and after a warning of litigation, sued the state claiming it violated federal law.
The Biden administration has accused the state of violating the Rivers and Harbors Act, a century-old law that gives the U.S. Army Corps of Engineers permitting authority over construction projects and structures in navigable waterways in the United States. The state placed the buoys in the water without a permit, making their presence unlawful, the administration claims.
In September, a federal judge in Austin accepted the federal government's argument and granted a preliminary injunction ordering Texas to remove the buoys. The Fifth Circuit later affirmed the ruling, but the state managed to lobby the New Orleans-based federal appeals court to order an administrative stay of the injunction and an en banc rehearing, which took place in January.
Texas began its attempt to win over the 17-judge panel on Wednesday by rebuking the Justice Department's narrative that the Rio Grande doesn't qualify as a navigable river.
The nearly 2,000-mile river that divides Texas and Mexico, Texas deputy solicitor general Lanora Pettit told the judges, is no more than “a creek with an excellent publicist.”
“Nearly dry, except when it's a raging flood, ships have never used its tenuous, rocky and ever-shifting course to transport passengers or commercial merchandise except near its mouth,” Pettit said. “Nevertheless, the United States alleges, the district court agreed and the panel affirmed that the Rio Grande is a navigable river subject to the same federal controls as the Mississippi.”
Pettit argued that the section of river in question would need to be dredged significantly, its 18-inch depth lowered to 9 feet, for it to be considered navigable.
In response, Justice Department said “significant evidence” shows the river is in fact navigable, putting it under the purview of the U.S. Army Corps of Engineers. “The district court correctly found as a fact that the area was historically navigable based on the evidence at this stage of the proceedings,” he said.
Asked by U.S. Circuit Judge Jennifer Walker Elrod, a George W. Bush appointee, asked what he believed to be the United States' best evidence, Grey — adding that it wasn't his only evidence — pointed to the existence of ferry traffic near Eagle Pass.
The Trump-appointee U.S. Circuit Judge Andrew Oldham jumped in and asked whether ferries crossed at the exact section where the buoys were placed. Grey conceded that he did not have specific evidence of such crossings.
“Why isn't that a fatal problem for your theory?” Oldham asked. “If the ferries are crossing at Eagle Pass, and not in this 1000-foot stretch, why is that not in the case?"
“Because," Grey answered, "you don't look at tiny little segments … you look at where there are general characteristics of navigability in the area."
“So you don't have to say a ferry crossed right exactly here, but Eagle Pass is sufficient" to demonstrate that the river is navigable, he continued.
In addition to ferry crossings, Grey explained that U.S. Border Patrol agents patrol the river via boat daily. Plus, the attorney explained, according to a 1940 Supreme Court Ruling in United States v. Appalachian Electric Power Co., a lack of commercial traffic does not deem a waterway unnavigable nor remove its status of being navigable.
In her rebuttal argument, Pettit challenged both the plaintiff’s and the lower court’s application of Appalachian Electric Power, arguing they relied on cross-river traffic to prove their point, while ignoring downriver traffic. According to Pettit, both must be present for the U.S. Army Corps of Engineers to have authority over the waterway — and with that box unchecked, the court should rule in the state’s favor and allow its buoys to remain in the water as the case proceeds.
The judges have not indicated when they will release a ruling.
It's not the only border barrier dispute before it between the Biden administration and Texas. The Lone Star State also has sued the U.S. to stop federal agents from cutting razor wire the state placed on the border to stop migrants from crossing. In January, the Supreme Court ruled in favor of the Biden administration, ordering the state to allow Border Patrol agents to access the river.
A Fifth Circuit opinion is also pending in yet another case over whether a new state immigration enforcement law should be allowed to take effect. Senate Bill 4 was blocked by a federal judge in Austin after the Department of Justice sued, arguing that the state was attempting to impede the federal government’s ability to regulate immigration.
Regardless of the appeals court's rulings, the disputes, which have the potential to reshape the power border states have in regulating who can enter the state and therefore the country, are likely to land before the Supreme Court.
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