Federal Appeals Court Reverses Position, Allows Texas Floating Barrier to Remain

Migrants who crossed the Rio Grande from Mexico walk past large buoys being deployed as a
AP Photo/Eric Gay

EAGLE PASS, Texas — The State of Texas secured a rehearing before the U.S. Court of Appeals for the Fifth Circuit that will allow the floating buoy barrier installed in the Rio Grande to remain in place until the full court hears the case. The en banc court hearing will take place in May 2024 and reverses a prior ruling ordering the state to remove the barrier system.

In December 2023, the Fifth Circuit panel issued a split 2-1 ruling affirming the Biden administration’s Department of Justice argument that the buoys posed a threat to public safety and blocked navigation in the Rio Grande. As reported by Breitbart Texas, the decision of the appeals court at the time upheld a lower court injunction that instructed the state to remove the 1000-foot floating barrier within ten days.

Texas Governor Greg Abbott issued a statement promising constituents he and Attorney General Ken Paxton would be filing the request for a full court hearing on the matter and expressed his willingness to take the case to the U.S. Supreme Court if necessary.

The barrier, installed at a busy migrant crossing point near Eagle Pass, Texas, in July 2023, is a product manufactured by the Cochrane USA corporation. Abbott announced the installation of the floating barrier system in 2023 as he signed a host of border security bills in Austin. The project quickly came under fire by open-border protesters unhappy with the installation of the buoys and Governor Abbott’s enhanced border security efforts under Operation Lone Star.

Wednesday’s ruling issued by the Fifth Circuit is a part of several legal battles between the state and the Biden Administration over steps Texas is taking to reduce migrant crossings at its border with Mexico. The announcement of the ruling by the Texas Attorney General comes on the heels of another potential legal battle between the Biden Administration and Paxton over the recent seizure of Shelby Park in Eagle Pass by the Texas Military Department.

As a result of last week’s seizure of the border park adjacent to the Rio Grande, the Biden administration’s Department of Homeland Security issued Paxton a cease-and-desist letter claiming the Border Patrol’s right to enter the park to perform official duties had been unlawfully impeded by the move. The letter demanded the state to remove temporary gates from the park’s entrance and allow the Border Patrol full access by the end of the day on Wednesday or face legal action.

As reported by Breitbart Texas, Paxton responded to the letter by sending correspondence to the Department of Homeland Security refuting the legal issues contained in the cease-and-desist letter and vowing to stand firm on the State’s seizure and conditions for entry into the area by the Border Patrol.

That issue, as well as another federal court case regarding the Border Patrol’s right to cut or move concertina wire installed along the border, remains unresolved.

The case is USA v. Greg Abbott, No. 23-50632, in the U.S. Court of Appeals for the Fifth Circuit.

Randy Clark is a 32-year veteran of the United States Border Patrol.  Prior to his retirement, he served as the Division Chief for Law Enforcement Operations, directing operations for nine Border Patrol Stations within the Del Rio, Texas, Sector. Follow him on Twitter @RandyClarkBBTX.


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