BORDER SECURITYDOJ Argues in Federal Court for Removal of Texas’ Floating Border Barrier

By Sneha Dey

Published 23 August 2023

In a court hearing over the barrier near Eagle Pass, the U.S. Justice Department argued it was installed without federal authorization, while lawyers for the state said it notified the proper authorities.

Seeking immediate removal of a floating barrier that Texas deployed in the Rio Grande to deter migrants, the U.S. Justice Department told an Austin federal judge Tuesday that the barrier threatens U.S.-Mexico relations and was installed without appropriate federal authorization.

The state’s lawyers argued in court documents that the barrier — a 1,000-foot-long string of buoys and saw blades supporting a submerged mesh net — is not a structure that required authorization. And in Tuesday’s hearing, they argued that the state notified proper authorities by briefing the international body that regulates the Rio Grande before the barrier was installed.

Texas also argued the state has the right to defend itself against an “invasion” of drug cartels. But when the state’s lawyers tried to establish the nature of the border security challenges at the border that made the barrier necessary, U.S. District Judge David A. Ezra swatted away that line of defense.

“This is a United States District Court. It is not Congress. It is not the president,” Ezra said. “I’m not here to engage in nor do I have any inclination to engage in any type of political comment in this decision.”

Gov. Greg Abbott ordered deployment of the floating barrier in Eagle Pass in July as part of Operation Lone Star, his multibillion-dollar effort to reduce illegal immigration at the Texas-Mexico border. When he refused to comply with the Justice Department’s calls to remove the barrier, federal officials sued.

Ezra heard testimony on Tuesday but did not issue a ruling. Federal and state lawyers have until Friday to submit closing arguments, and the judge said his decision would follow as soon as possible.

Hillary Quam, the U.S.-Mexico border coordinator for the U.S. State Department, testified during Tuesday’s hearing that the barrier has come up as an issue at the highest diplomatic levels with Mexico. In diplomatic notes and in meetings with the U.S. secretary of state, Mexico has indicated the buoys are a treaty violation. Mexico’s president has mentioned the barrier six times in his daily press conferences since June.

Unlike the border wall, which sits on the U.S. side of the Rio Grande, the buoy barrier floats in international waters and is subject to treaties between the two countries, Quam said.

“An issue like this distracts from the binational agenda,” Quam said. “Our concern is that Mexico will not be a willing partner on other issues.”

The International Boundary and Water Commission, the body that regulates the Rio Grande, initiated a complaint about the barrier with the U.S. Army Corps of Engineers. Joseph Shelnutt, tasked with probing the complaint for the Corps of Engineers, testified on Tuesday that the state failed to obtain a required permit before installing the barrier.

The state’s lawyers said Texas Department of Public Safety officers had met with and briefed representatives of the International Boundary and Water Commission prior to installation. The state’s lawyers also said the U.S. Army Corps of Engineers did not speak to any state officials as part of its investigation.

Shelnutt on Tuesday said the barrier obstructs navigation — but when pressed by the state, he also said there was no sign of commercial navigation in the section of river where the barrier was installed.

Amid reports that the barrier had drifted to Mexico’s side of the river last week, Ezra pressed the state’s lawyers about the barrier’s location. Ahead of the hearing, Texas moved the barrier closer to the U.S. side of the river, which Abbott said was out of an “abundance of caution.”

Loren Flossman, a senior consultant for Cochrane International, the group tasked with installing the barrier, testified Tuesday that more than 70 anchors hang from the buoys to prevent the barrier from drifting.

He could not explain how the barrier had drifted to the Mexican side of the river last week.

Sneha Dey is a general assignment reporter for The Texas Tribune. This story is published courtesy of the Texas Tribune, a nonpartisan, nonprofit media organization that informs Texans — and engages with them — about public policy, politics, government, and statewide issues.