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.
The law 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.
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.
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.
“The State of Texas’s actions violate federal law, raise humanitarian concerns, present serious risks to public safety and the environment, and may interfere with the federal government’s ability to carry out its official duties,” they wrote, according to the letter obtained by the Texas Tribune.
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.”
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 Clause 3 of the U.S. Constitution.
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.”
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.
This is a developing story and will be updated.
USA VS GREG ABBOTT, STATE OF TEXAS
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