Federal appeals court orders Texas to remove controversial border buoys from Rio Grande

Dec 1, 2023, 9:07 PM

Buoys meant to deter migrant crossings are anchored in the Rio Grande River in Eagle Pass, Texas, o...

Buoys meant to deter migrant crossings are anchored in the Rio Grande River in Eagle Pass, Texas, on October 11. (Jordan Vonderhaar/Bloomberg/Getty Images)

(Jordan Vonderhaar/Bloomberg/Getty Images)

Originally Published: 01 DEC 23 18:52 ET
Updated: 01 DEC 23 22:15 ET

(CNN) — The 5th US Circuit Court of Appeals on Friday ordered Texas to remove its border buoys from the Rio Grande, in another victory for the Biden administration in its ongoing battle over border policy with Gov. Greg Abbott.

In a 2-1 decision, the conservative appeals court upheld a lower court’s preliminary injunction issued in September. The appeals court had previously stayed the injunction while it considered the case.

As the US grapples with increased migrant crossings, the border buoys have been a major point of contention between the Biden administration and the Republican governor, who deployed the controversial measure to deter migrants as part of his border security initiative.

The Justice Department argued in its lawsuit filed in July that the buoys were installed unlawfully and building any structure in US water would require permission from the United States Army Corps of Engineers.

Abbott has maintained that Texas has the constitutional authority to install them and that the buoys were necessary for self-defense.

In Friday’s order, the 5th Circuit found that the lower court had not abused its discretion in issuing the preliminary injunction, determining that it had sufficiently “considered the threat to navigation and federal government operations on the Rio Grande, as well as the potential threat to human life” posed by the barriers.

Writing in dissent, Circuit Judge Don Willett said that the lower court had erred in issuing the injunction, arguing that the segment of the Rio Grande where the buoys were installed was not navigable to begin with and so the administration was unlikely to succeed in its case.

Following the decision, Abbott wrote on X that he and the Texas attorney general “will seek an immediate rehearing.”

“We’ll go to SCOTUS if needed to protect Texas from Biden’s open borders,” Abbott added in the post.

This is the second time in a week that Texas has lost a legal battle in its ongoing border saga with the Biden administration over security at the southern border.

On Thursday, a federal judge ruled in the federal government’s favor after Texas asked the court to force border patrol agents to stop cutting razor wire installed by the state. In a lawsuit filed in October, Texas alleged federal agents were destroying state property by cutting razor wire in Eagle Pass, Texas, with the intention of allowing migrants into the US. Texas Attorney General Ken Paxton has appealed the order.

This story has been updated with additional information.

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Federal appeals court orders Texas to remove controversial border buoys from Rio Grande