690 F.Supp.3d 708
W.D. Tex.2023Background
- In July 2023 Texas, by gubernatorial directive, installed a ~1,000‑foot floating barrier in the Rio Grande near Eagle Pass consisting of four‑foot buoys chained together, stainless‑steel anti‑dive mesh, and ~143 heavy concrete anchors on the riverbed. Texas did not obtain authorization from Congress or the Army Corps of Engineers.
- The United States sued under the Rivers and Harbors Appropriation Act (RHA) § 10 (33 U.S.C. § 403), seeking a preliminary injunction and removal of the structure for building an unauthorized obstruction/structure in navigable waters.
- The district court held a hearing and considered written briefing and evidence (including Corps studies, historical materials, and on‑the‑ground surveys).
- The court found the relevant stretch of the Rio Grande historically navigable and susceptible to future commercial use, and it concluded the barrier both obstructed navigable capacity and qualified as a “boom” or “other structure” under § 10.
- The court rejected Texas’s defense invoking a state power to repel an "invasion" (self‑defense/war powers), treating that claim as a nonjusticiable political question and recognizing federal supremacy over navigable waters and immigration policy.
- The court granted a preliminary injunction: no new buoys/structures in the Rio Grande, and Texas was ordered to reposition existing buoys/anchors to the Texas riverbank in coordination with the Army Corps of Engineers (deadline set in the order).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Is the Rio Grande stretch a navigable water of the United States? | Historically navigable and susceptible to future commercial use; Corps studies/treaties support navigability. | Recent lack of commercial traffic, sandbars, low flows make it nonnavigable in fact. | Court: navigable (historically and potentially with reasonable improvement); drought/low flows do not defeat legal navigability. |
| 2) Does the floating barrier constitute an unlawful obstruction or structure under § 10 RHA? | Barrier materially interferes with navigation and functions as a boom/other structure; no Corps permit. | Barrier is narrow, aids navigation, impermanent, not bank‑to‑bank so not a boom. | Court: barrier is an obstruction and a structure (boom/other); violates § 10 absent authorization. |
| 3) Can Texas justify the barrier by invoking state self‑defense/"invasion" authority? | Texas: Governor may act to repel an "actual invasion" and thus may bypass federal permitting. | United States: immigration and invasion determinations are federal political functions; state action cannot override federal statutes. | Court: Texas’s invasion claim raises nonjusticiable political questions and does not excuse RHA violations; federal authority controls. |
| 4) Is preliminary injunctive relief appropriate? | Statutory violation of § 10 plus threats to navigation, safety, US‑Mexico relations, and IBWC operations warrant injunction; when US sues equities/public interest merge. | Texas: equitable factors and border security interests weigh against injunction. | Court: equitable factors favor injunction; granted preliminary relief prohibiting new placement and requiring repositioning of existing materials. |
Key Cases Cited
- Univ. of Tex. v. Camenisch, 451 U.S. 390 (standard and purpose of preliminary injunction)
- Munaf v. Geren, 553 U.S. 674 (preliminary injunction is extraordinary relief)
- Nken v. Holder, 556 U.S. 418 (when United States is party, certain equitable factors merge)
- United States v. Appalachian Elec. Power Co., 311 U.S. 377 (navigability includes waters susceptible to future use with reasonable improvement)
- Econ. Light & Power Co. v. United States, 256 U.S. 113 (historical navigability persists despite disuse)
- United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690 (test for whether act tends to obstruct navigable capacity)
- United States v. Republic Steel Corp., 362 U.S. 482 (broad construction of § 10 "obstruction")
- Sanitary Dist. of Chicago v. United States, 266 U.S. 405 (federal supremacy to regulate navigable waters over state welfare measures)
- Baker v. Carr, 369 U.S. 186 (political question doctrine and nonjusticiability)
- Arizona v. United States, 567 U.S. 387 (immigration is federal prerogative)