The public jockeying over Texas' floating barriers in the Rio Grande River became a legal fight Monday. Lawyers for the U.S. Department of Justice’s Environmental and Natural Resources Division argue the state is violating the Rivers and Harbors Act of 1899.
Federal lawyers argue they were "deprived of the opportunity to evaluate risks the barrier poses to public safety and the environment" as the law requires.
“We allege that Texas has flouted federal law by installing a barrier in the Rio Grande without obtaining the required federal authorization,” said Associate Attorney General Vanita Gupta, “This floating barrier poses threats to navigation and public safety and presents humanitarian concerns."
In early July, the Texas Department of Public Safety placed floating barriers in the Rio Grande River as part of Republican Gov. Greg Abbott’s effort to secure the Texas-Mexico border from people crossing illegally. The water barrier is a series of orange wrecking-ball-sized buoys stretching just more than 1,000 feet near Eagle Pass.
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In a letter last week, the DOJ’s Assistant Attorney General Todd Kim and the U.S. attorney for the Western District of Texas Jaime Esparza warned Abbott that if the state didn’t remove the “unlawful” barrier by Monday afternoon, they would file a lawsuit.
Monday morning, Abbott responded with a letter to President Joe Biden defending the state’s actions, writing “Texas will see you in court, Mr. President.”
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Abbott argues as “commander-in-chief of the State’s militia” he can assert the state's “sovereign interest in protecting (her) borders”, according to Article 1, Clause 3 of the U.S. Constitution.
The Governor points to the section of the Texas Constitution which gives him the "power to call forth the militia to execute the laws of the State, to suppress insurrections, and to repel invasions."
Abbott’s letter notes previous letters; one sent in November 2022 and then another hand-delivered to President Biden in January 2023 when he visited El Paso. The Governor argues the Department of Justice “misses the mark,” writing the Rivers and Harbors Act doesn’t’ specifically ban their barrier.
“Neither of us wants to see another death in the Rio Grande River,” wrote Abbott, “Yet your open-border policies encourage migrants to risk their lives by crossing illegally through the water, instead of safely and legally at a port of entry. Nobody drowns on a bridge.”
“Instead of coming to the table and trying to figure out a way to work together, he continues to do this really cruel, unjust, inhumane moving forward with a system that’s been broken for decades,” said White House Press Secretary Karine Jean-Pierre.
Since border issues are usually under the federal government's purview, legal analysts told NBC 5 Monday the state may have an uphill battle in court.
“If a court determines these floating buoys fall within the Rivers and Harbors Act and they’re the kind of things that the state needed permission from the Federal government to place, then the state of Texas will likely be forced to remove these buoys,” said Danny Cevallos, NBC Legal Analyst, Cevallos & Wong.
The Texas legislature earlier approved $10 billion for border security efforts as part of Operation Lone Star, a far-reaching program that includes bussing migrants out of Texas to democratic-run cities.
Last week a state trooper raised concerns about the treatment of migrants in an email first obtained by the Houston Chronicle.
“I believe we have stepped over a line into the inhumane. We need to operate it correctly in the eyes of God,” the trooper wrote in the email per the Chronicle. The trooper described a woman having a miscarriage while being caught in razor wire put in place by the state.
That story brought widespread attention back to the border and the state’s operation to stop migrants. The Texas DPS is investigating the matter.
The Eagle Pass area where the buoys are deployed has seen an increase in illegal crossings this past year.
The United States Customs and Border Protection notes more than two million crossings of the entire border in 2022 but they’ve seen a notable decrease this spring and summer.
The Rivers and Harbors Act of 1899 states, “The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is hereby prohibited” unless recommended by the Army Corps of Engineers and signed off by the Secretary of War.
According to an exhibit attached to the lawsuit, the US Army Corps of Engineers considers the Rio Grande a navigable waterway between the Zapata-Webb county line upstream to the Texas-New Mexico border.
Earlier this month, the Mexican government protested the buoy deployment.
