87 F.4th 616
5th Cir.2023Background
- In July 2023, Texas, at Governor Abbott’s direction, deployed a ~1,000-foot floating barrier in the Rio Grande near Eagle Pass (interconnected buoys, heavy concrete anchors, and an anti-dive mesh), without Corps authorization.
- The United States sued under the Rivers and Harbors Appropriation Act of 1899 (RHA), seeking a preliminary injunction to stop work, remove obstructions, and require repositioning/removal of the barrier.
- The district court granted a preliminary injunction ordering Texas to cease work and move the barrier to the Texas riverbank; Texas appealed and this Court temporarily stayed that order.
- The Fifth Circuit reviewed the injunction for abuse of discretion, focusing on (1) navigability of the river segment, (2) whether the barrier is an “obstruction” under §10(cl.1), (3) whether the barrier is an “other structure” requiring Corps approval under §10(cl.2), and (4) Texas’s self-defense/invasion argument.
- The court concluded the United States showed a likelihood of success on the merits (historical navigability and obstruction; the barrier qualifies as an ‘‘other structure’’), that equities and public interest favored injunctive relief (diplomatic interference with Mexico/IBWC, navigation and safety risks), and affirmed the preliminary injunction, dissolving the administrative stay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the challenged Rio Grande segment "navigable" under the RHA? | The segment is historically navigable and/or susceptible of future navigation with reasonable improvements; agency determinations and historical evidence support navigability. | The 1,000‑ft segment is not historically or prospectively navigable; cited evidence is sporadic, geographically inapposite, or precatory. | Court: Likely navigable (historical susceptibility shown); district court’s finding not clearly erroneous. |
| Does the barrier constitute an "obstruction" to navigable capacity under §10(cl.1)? | The barrier, anchors, and net interfere with lateral movement, federal operations, and safe navigation—thus diminishing navigable capacity. | Texas contends obstruction requires destruction of navigable capacity and that the river’s natural hazards, not the barrier, pose the risks. | Court: Barrier is an obstruction (broad §10 reading); factual findings supported; likely RHA violation. |
| Is the floating barrier an "other structure" under §10(cl.2) requiring Corps authorization/permit? | The barrier is a tangible in-water structure (obstacle/boom/other structure) that interferes with navigation and was built without Corps approval. | Texas argues ‘‘other structure’’ requires permanence and the barrier is not permanent or is temporary state action for safety. | Court: Barrier qualifies as an "other structure" (tamper‑resistant anchoring, design to withstand floods and costly to remove); permit required; likely RHA violation. |
| Does Texas’s constitutional self-defense/invasion claim excuse RHA compliance or preclude injunction? | Texas: Article I, §10 (state may respond to invasion) permits defensive measures to stop unlawful crossings. | U.S.: Federal regulatory and treaty powers over navigable waters and border/foreign relations preempt unilateral state measures; judicial relief may issue despite asserted defenses. | Court: District court adequately considered defense; invasion claim not a bar to preliminary injunction on the undeveloped record; remedy (move to bank) preserves status quo pending merits. |
Key Cases Cited
- Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (U.S. 2008) (standards for preliminary injunction)
- United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690 (U.S. 1899) (navigability and definition of "obstruction")
- United States v. Appalachian Electric Power Co., 311 U.S. 377 (U.S. 1940) (historical or prospective navigability; reasonable improvements test)
- United States v. Republic Steel Corp., 362 U.S. 482 (U.S. 1960) (broad construction of §10 "obstruction")
- Sanitary Dist. of Chicago v. United States, 266 U.S. 405 (U.S. 1925) (federal authority to remove obstructions to interstate/foreign commerce)
- Arizona v. United States, 567 U.S. 387 (U.S. 2012) (states may not implement policies that undermine federal law)
- Oklahoma v. Texas, 258 U.S. 574 (U.S. 1922) (statutory language preserving navigation may be precautionary, not a factual finding of navigability)
- The Montello, 87 U.S. 430 (U.S. 1874) (classic definition of navigable waters)
- Vieux Carré Prop. Owners, Residents & Assocs., Inc. v. Brown, 875 F.2d 453 (5th Cir. 1989) (invoking broad interpretation of §10 "obstruction")