Federal judge orders Texas to remove floating barriers aimed at deterring migrants on Rio Grande

By Priscilla Alvarez, CNN

(CNN) — A federal judge ordered Texas to remove floating barriers in the Rio Grande and barred the state from building new or placing additional buoys in the river, according to a Wednesday court filing, marking a victory for the Biden administration.

Judge David Alan Ezra ordered Texas to take down the barriers by September 15 at its own expense.

The border buoys have been a hot button immigration issue since they were deployed in the Rio Grande as part of Gov. Greg Abbott’s border security initiative known as Operation Lone Star. The Justice Department had sued the state of Texas in July claiming that the buoys were installed unlawfully and asking the judge to force the state to remove them.

In the lawsuit, filed in US District Court in the Western District of Texas, the Justice Department alleged that Texas and Abbott violated the Rivers and Harbors Appropriation Act by building a structure in US water without permission from United States Army Corps of Engineers and sought an injunction to bar Texas from building additional barriers in the river. The Republican governor, meanwhile, has argued the buoys are intended to deter migrants from crossing into the state from Mexico.

Texas swiftly appealed the judge’s order.

“This ruling is incorrect and will be overturned on appeal. We will continue to utilize every strategy to secure the border, including deploying Texas National Guard soldiers and Department of Public Safety troopers and installing strategic barriers,” Abbott’s office said in a statement, adding that the state “is prepared to take this fight all the way to the U.S. Supreme Court.”

Ezra wrote Wednesday that Abbott needed permission to install the barriers, as dictated by law.

“Governor Abbott announced that he was not ‘asking for permission’ for Operation Lone Star, the anti-immigration program under which Texas constructed the floating barrier. Unfortunately for Texas, permission is exactly what federal law requires before installing obstructions in the nation’s navigable waters,” the judge wrote in his ruling.

Ezra also found Texas’ self-defense argument – that the barriers have been placed in the face of invasion – “unconvincing.”

“This argument fails because (1) the RHA has already balanced policy interests and determined that the nation’s interest in free navigation of its waterways is supreme to unauthorized state action, and (2) whether Texas’s claim of ‘invasion’ is legitimate is a non-justiciable political question demonstrably committed to the federal political branches,” he wrote.

CNN has reached out to the Justice Department for comment.

Associate Attorney General Vanita Gupta said in a statement following the order that the Justice Department is “pleased that the court ruled that the barrier was unlawful and irreparably harms diplomatic relations, public safety, navigation, and the operations of federal agency officials in and around the Rio Grande. “

The Justice Department had brought the lawsuit after Abbott said he would not order the removal of the floating barriers from the Rio Grande, in defiance of the department’s request days before.

Ezra heard arguments in the case last month, during which the Justice Department focused on its claim that the barriers violated federal law, but also on the buoys’ role in fraying relations with Mexico – which has voiced concern with the “inhumane” barriers and claimed they reside in part on the country’s territory.

Texas, meanwhile, maintained it had constitutional authority to deploy the floating barriers. Ezra at times requested that the state’s attorneys focus on the buoys and not dive into other issues like fentanyl and overall illegal immigration on the US southern border.

The state is facing another lawsuit over the barriers, brought in early July by the owner of a Texas canoe and kayaking company operating on the Rio Grande.

This story has been updated with additional details.

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CNN’s Rosa Flores, Sara Weisfeldt and Jack Forrest contributed to this report.