United States v. Abbott ( 2023 )

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United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
December 1, 2023
No. 23-50632 Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Greg Abbott, in his capacity as Governor of the State of Texas; State
of Texas,
Defendants—Appellants.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:23-CV-853
______________________________
Before King, Willett, and Douglas, Circuit Judges.
Dana M. Douglas, Circuit Judge:
In July 2023, Texas, at the direction of Governor Greg Abbott,
installed a floating barrier in the Rio Grande near Eagle Pass, Texas. The
United States filed a civil enforcement action against Texas, alleging that
installment of the barrier violated the Rivers and Harbors Appropriation Act
of 1899 (“RHA”). The United States moved for a preliminary injunction,
which the district court granted, ordering the defendants to cease work on
the barrier and to move it to the Texas riverbank. Texas timely appealed.
This court entered an administrative stay. Finding that the district court did
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not abuse its discretion, we DISSOLVE the administrative stay and
AFFIRM.
I. BACKGROUND
In early June 2023, Governor Abbott announced Texas’s intent to
deploy “marine floating barriers” to “mak[e] it more difficult to cross the
Rio Grande and reach the Texas side of the southern border.” 1 On July 10,
2023, without authorization from the federal government, Texas began
installing the floating barrier.
The floating barrier was deployed near Eagle Pass, Texas, with
additional plans by Texas to deploy similar barriers at three different
locations in the area. The floating barrier is roughly 1,000 feet long, made up
of large four-foot orange buoys fastened together with heavy metal cables and
anchored in place with concrete blocks placed systematically on the floor of
the Rio Grande. The buoys are surrounded by 68 anchors weighing about
3,000 pounds each and 75 anchors weighing about 1,000 pounds each.
Attached to about 500 feet of the floating barrier is a stainless-steel mesh
“anti-dive net” extending two feet into the water. The following
photographs are illustrative:
_____________________
1
Press Release, Office of the Texas Governor, Governor Abbott Signs Sweeping
Package of Border Security Legislation (June 8, 2023), https://gov.texas.gov/news/post/
governor-abbott-signs-sweeping-package-of-border-security-legislation.
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On July 24, 2023, the United States brought a civil enforcement action
under Sections 12 and 17 of the RHA, 33 U.S.C. §§ 406, 413, seeking to enjoin
the building of structures in navigable waters that obstruct the navigable
capacity of those waters and to require Governor Abbott to remove all
structures and obstructions in the Rio Grande. Specifically, the United
States alleged that Texas violated Section 10 of the RHA, 33 U.S.C. § 403,
by erecting a structure in the Rio Grande without authorization from the
United States Army Corps of Engineers (the “Corps”) and creating an
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obstruction to the navigable capacity of that waterway without affirmative
Congressional authorization.
On September 6, 2023, after holding a hearing on the motion for a
preliminary injunction filed by the United States, the district court concluded
that the United States showed a likelihood of success on the merits and that
the equities favored the granting of a preliminary injunction. It ordered
Texas to cease any work on the floating barrier and to reposition it on the
Texas side of the riverbank by September 15, 2023. This court
administratively stayed the district court’s order pending consideration by
this panel. We have jurisdiction under 28 U.S.C. § 1292(a)(1) from an order
granting a preliminary injunction.
II. STANDARD OF REVIEW
“The decision to grant or deny a preliminary injunction is
discretionary with the district court.” Miss. Power & Light Co. v. United Gas
Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985). Accordingly, we review a
district court’s grant of a preliminary injunction for an abuse of discretion,
reviewing factual findings for clear error and legal conclusions de novo.
Harrison v. Young, 48 F.4th 331, 339 (5th Cir. 2022). “A finding of fact is
clearly erroneous ‘when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.’” Clark v. Mobil Oil Corp.,
693 F.2d 500, 501-02 (5th Cir. 1982) (quoting United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948)).
III. DISCUSSION
A plaintiff seeking a preliminary injunction must establish that “he is
likely to succeed on the merits, that he is likely to suffer irreparable harm in
the absence of preliminary relief, that the balance of equities tips in his favor,
and that an injunction is in the public interest.” Winter v. Nat. Res. Def.
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Council, Inc., 555 U.S. 7, 20 (2008). A “preliminary injunction is an
extraordinary remedy which should not be granted unless the party seeking
it has ‘clearly carried the burden of persuasion.’” Harrison, 48 F.4th at 342
(quoting PCI Transp., Inc. v. Fort Worth & W.R.R., 418 F.3d 535, 545 (5th Cir.
2005)). The district court determined that the United States had carried its
burden of persuasion as to all four requirements.
A. Likelihood of Success on the Merits
Section 10 of the RHA provides in pertinent part:
The creation of any obstruction not affirmatively authorized by
Congress, to the navigable capacity of any of the waters of the
United States is prohibited; and it shall not be lawful to build
or commence the building of any wharf, pier, dolphin, boom,
weir, breakwater, bulkhead, jetty, or other structures in any
. . . navigable river . . . of the United States. . . except on plans
recommended by the Chief of Engineers and authorized by the
Secretary of the Army. . ..
33 U.S.C. § 403. The first clause prohibits the construction of any
obstruction in navigable waters without the consent of Congress. 33 U.S.C.
§ 403, cl. 1. The second clause prohibits the construction of specified and
other structures in those navigable waters absent permission from the Corps.
33 U.S.C. § 403, cl. 2.
The district court concluded that the United States showed a
likelihood of success on the merits as to both clauses. For the United States
to succeed on the first clause, the district court considered whether the
segment of the Rio Grande at issue is a “navigable” waterway and whether
the floating barrier is an “obstruction” to the navigable capacity of that
waterway. For the United States to succeed on the second clause, the district
court further considered whether the floating barrier is an “other structure”
requiring a permit from the Corps before construction. We address each in
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turn. We then address the district court’s findings on Texas’s self-defense
argument.
i. Navigability
To succeed under either clause of Section 10, the waterway must be
navigable. Navigability is a factual question reviewed for clear error. United
States v. Appalachian Elec. Power Co., 311 U.S. 377, 405 (1940).
The Code of Federal Regulations defines navigable waters as:
[T]hose waters that are subject to the ebb and flow of the tide
and/or are presently used, or have been used in the past, or may
be susceptible for use to transport interstate or foreign
commerce. A determination of navigability, once made,
applies laterally over the entire surface of the waterbody, and is
not extinguished by later actions or events which impede or
destroy navigable capacity.
33 C.F.R. § 329.4. Prior to the passage of the RHA, the Supreme Court
defined navigable waters as those “used, or are susceptible of being used, in
their ordinary condition, as highways for commerce, over which trade and
travel are or may be conducted in the customary modes of trade and travel on
water.” The Daniel Ball, 77 U.S. 557, 563 (1871).
Following the passage of the RHA, the Supreme Court broadened its
definition of navigability. In Economy Light & Power Co. v. United States, 256
U.S. 113 (1921), it expanded the definition to include waters formerly used in
interstate commerce but no longer capable of such use. Id. at 123-24. And in
Appalachian Electric, it expanded the definition to include waters not
presently used, but capable of future use with reasonable improvement. 311
U.S. at 408-09.
Thus, the elements to find navigability, as stated succinctly by the
Sixth Circuit, require that the waterway “must (1) be or have been (2) used
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or susceptible of use (3) in the customary modes of trade and travel on water
(4) as a highway for interstate commerce.” Mia. Valley Conservancy Dist. v.
Alexander, 692 F.2d 447, 450 (6th Cir. 1982). Texas focuses much of its
argument on the current state of the at-issue segment of the Rio Grande. But
the current condition of the Rio Grande is not dispositive, as the tests for
navigability set forth by the Supreme Court permit a review of whether the
Rio Grande was historically navigable—that is, whether it was historically
used in or susceptible of use in commerce—or whether it may be navigable
in the future with reasonable improvements. See United States v. Utah, 283
U.S. 64, 82 (1931) (stating that “[t]he extent of existing commerce is not the
test” for navigability); see also Econ. Light, 256 U.S. at 117 (finding the
Desplaines River navigable despite “no evidence of actual navigation within
the memory of living men”).
The district court made two alternative, independent findings that the
at-issue segment of the Rio Grande is navigable: first, that it had been used or
was susceptible of use in commerce in the past and second, that it was
susceptible of future use in commerce with reasonable improvements. We
begin with historical navigability. The district court concluded that the
United States presented sufficient evidence to carry its burden at this stage.
We agree.
In its complaint, the United States attached several exhibits discussing
the navigability of the at-issue segment of the Rio Grande. Included among
those is a document issued on December 20, 2011, by the Corps titled
“Navigable Waters of the United States in the Fort Worth, Albuquerque,
and Tulsa Districts Within the State of Texas.” It includes the Rio Grande
from “the Zapata-Webb county line upstream to the point of intersection of
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the Texas-New Mexico state line and Mexico” as “navigable waters of the
United States” falling within the Corps’ jurisdiction. 2
The United States also attached an authenticated document titled
“Navigability Determination, Rio Grande River, TX,” published in 1984, in
which the United States Coast Guard indicated that the Rio Grande River
“was listed among the navigable waters of the United States pursuant to
treaties with Mexico and for Coast Guard regulatory purposes.” The Coast
Guard published these determinations yearly from 1947 to 1976, when the
practice of publishing lists of navigable waters ceased. The document further
stated that “the designated stretch of the Rio Grande River remains a
navigable waterway of the United States.” 3 In his declaration authenticating
the document, Captain Brandy Parker of the U.S. Coast Guard indicated that
“the 1984 navigability determination is still in effect.”
The United States also relied on an extensive study performed by the
Corps that concluded: “The Rio Grande River between River Mile 275.5 and
610.0, on the United States side from the centerline of the normal channel, is
a navigable water of the United States.” This determination of navigability
by the Corps is based on a report titled “Navigability Study, Rio Grande,
Tributaries, and Lakes, Rio Grande Basin, River Mile 275.5 to 610.0 date
_____________________
2
U.S. Army Corps of Eng’rs, Fort Worth Dist., Navigable
Waters of the United States in the Fort Worth, Albuquerque, and
Tulsa Dist. Within the State of Texas 1 (2011), www.swf.usace.army.mil/
Portals/47/docs/regulatory/NavList2011.pdf.
3
Courts afford substantial weight to an agency’s determinations of navigability.
Huron Mountain Club v. U.S. Army Corps of Eng’rs, No. 2:12-CV-197, 2012 WL 3060146,
at *9 (W.D. Mich. July 25, 2012), aff’d, 545 F. App’x 390 (6th Cir. 2013); Wash. Water
Power Co. v. FERC, 775 F.2d 305, 328 (D.C. Cir. 1985) (“[The Corps’] official reports thus
carry particular weight.”); 33 C.F.R. § 329.14(a) (“Although conclusive determinations of
navigability can be made only by federal [c]ourts, those made by federal agencies are
nevertheless accorded substantial weight by the courts.”).
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March 1975” (the “Navigability Study”). The Navigability Study, relied
upon by the district court, reflects in detail on past commerce in the region. 4
The first practical navigation in the region occurred during the
Mexican American War. “General Zachary Taylor importuned the
quartermaster for light steamboats for patrol and military transportation
purposes. The Corvette, Whitesville, Major Brown, and Colonel Cross arrived
from Pittsburg in June, 1846. Other steamboats plying the Rio Grande at the
time were the J. E. Roberts and the Brownsville.” In an extract from People
and Plots on the Rio Grande by V. N. Lott and V. M. Fenwick (1957), the
authors indicate the importance of steamboats in the transportation of
supplies for Taylor’s army: “These played a most important role in the
history of the conflict and for many years thereafter river navigation was vital
to the life of the area between Ringgold and Brownsville, and to some extent
as far up to Laredo.”
Navigation was then extended further upstream: “In October, 1846, a
successful attempt was made to ascend the Rio Grande in the United States
steamer Major Brown, by order of General Patterson . . ..” Another account
discusses navigating to the Big Bend reach, the farthest upstream area of
which any account was found:
The head of steam navigation in the 1850’s . . . was Roma.
Goods were trans-shipped upriver to the forts by pack and
wagon from there . . .. First of all, until steamboats were
_____________________
4
Relying on treaties between the United States and Mexico and the Supreme
Court’s decision in United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690 (1899),
discussed infra, the Corps concluded it was “unnecessary to determine whether sufficient
past use occurred in the study area,” as its navigable capacity was reaffirmed in treaties and
by the Supreme Court. Regardless, the Navigability Study included numerous excerpts
and other historical evidence demonstrating past use and susceptibility of use in commerce
in the area that are relevant to our decision today.
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released from wartime troop duty, he supplied the river
garrisons by keelboat. And then in 1850 he sent an expedition
up the river with orders to navigate to the farthest possible
place. He hoped to discover that shipping could utilize far
more of the river’s length than it had so far done. A keelboat
and a skiff, manned by sixteen men, ascended the river by
channel to a point a thousand miles above the head of steam
travel or about thirteen hundred miles above the mouth. It was
an astonishing penetration for a river with so little water, and
the expeditioneers came back, all safe, to report optimistically
that if the channel were improved in certain passages, steam
navigation would be entirely feasible all the way “up to
Babbitt’s Falls.”
Also included in the Navigability Study is an extract from the 1949
book Rio Grande, River of Destiny by Laura Gilpin that states:
In 1861 the Rio Grande was navigable for two hundred miles,
and Texas-grown cotton was brought to the mouth of the river
by small boats for the transfer to ocean-going vessels in the Gulf
of Mexico. Down the coast in small boats and across the land
by wagon came cotton to be sold to Europe. Up the coast and
back across the land went supplies for the Confederate Army,
as these were imported from England, France, and Mexico.
In an extract from Southwestern Historical Quarterly (1914) edited by
Ephraim Douglass Adams, a letter titled “British Correspondence
Concerning Texas” sent in 1843 states:
All the rivers however, discharging themselves into the Gulf,
vary greatly in their navigable facilities, according to the
season, and I dare say, that in the winter and spring Months,
the Rio Grande would be navigable for a great distance in light
iron boats, such as are used in the upper Ganges and Indus.
. . . Matamoros, Tampico, Alvarado, Tabasco are all accessible
to Vessels of the draught I have indicated.
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The district court, as well as the Corps’ Navigability Study, also
considered Article VII of the Treaty of Guadalupe Hidalgo between the
United States and Mexico, in which the countries agreed that navigation on
the Rio Grande “divided in the middle between the two Republics. . . shall
be free and common to the vessels and citizens of both countries; and neither
shall, without the consent of the other, construct any work that may impede
or interrupt, in whole or in part, the exercise of this right.” 9 Stat. 928 (1848)
(free navigability reinforced by the Gadsden Treaty, art. IV, 10 Stat. 1034(1853)).
Contemporaneous court cases, cited by the district court, also support
a finding of historical navigability. These cases discuss ferry companies
operating between Eagle Pass and Piedras Negras, transporting goods in
commerce, such as cotton. United States v. Weil, 35 Ct. Cl. 42, 77 (1900)
(“At Eagle Pass there were ferryboats in which cotton was crossed over. .
..”); Tugwell v. Eagle Pass Ferry Co., 9 S.W. 120 (Tex. 1888) (resolving
dispute between ferry companies operating between Eagle Pass and Piedras
Negras). Contrary to the dissent’s position, ferry usage is an appropriate
consideration when evaluating historical navigability. See Appalachian Elec.,
311 U.S. at 413 n.46 (considering ferry usage). Moreover, the dissent points
to a Georgia district court decision—United States v. Crow, Pope & Land
Enters., Inc., 340 F. Supp. 25, 35 (N.D. Ga. 1972)—to support its contention
that ferry usage does not demonstrate commerce in the region. But Crow
considered intrastate bank-to-bank ferry traffic occurring entirely within
Georgia on the Chattahoochee River, not commerce across an international
boundary. See id. at 29-30. The ferry cases cited by the United States
specifically involve the transportation of goods in commerce, such as cotton,
between the United States and Mexico—a feature that certainly makes the
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Rio Grande unique and undermines any contention that navigation must be
along the river. 5
In addition to the agency determinations, historical evidence, treaties
between the United States and Mexico, and court cases, the district court
noted several acts of Congress, attached to the United States’ complaint, that
emphasize the importance of navigability in the region. In one act to
authorize the construction of a bridge over the Rio Grande between the cities
of Eagle Pass, Texas, and Piedras Negras, Mexico, Congress states:
[S]aid bridge shall not interfere with the free navigation of said
river, and in case of any litigation arising from an obstruction
or an alleged obstruction to the free navigation thereof, caused
or alleged to be caused by said bridge, the case may be tried
before the circuit or district court of the United States for the
State of Texas having jurisdiction thereof.
23 Stat. 29 (1884). It further states:
Congress reserves the right to withdraw the authority and
power conferred by this act, in case the free navigation of said
river shall at any time be substantially or materially obstructed
by said bridge, or for any other reason, and to direct the
removal or necessary modifications thereof at the cost and
expense of the owners of said bridge. . ..
Id. 6
_____________________
5
Moreover, the Treaty of Guadalupe Hidalgo explicitly contemplates cross-river
navigation between the United States and Mexico, as it recognizes that either country’s
vessels or citizens could land upon the other country’s shores. See 9 Stat. 922, art. VII
(1848).
6
Another act granting consent of Congress to the Eagle Pass and Piedras Negras
Bridge Company for construction of a bridge across the Rio Grande between Eagle Pass,
Texas, and Piedras Negras, Mexico states in relevant part that the consent of Congress is
given to the construction of a bridge between Eagle Pass and Piedras Negras “at a point
suitable to the interests of navigation across the Rio Grande.” 42 Stat. 1482 (1923).
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A few years later, Congress authorized the Texas-Mexican Electric
Light and Power Company to erect wires across the Rio Grande at Eagle Pass,
Texas:
Provided, That said wires shall not interfere with the free
navigation of said river, and in case of any litigation arising from
an obstruction or alleged obstruction to the free navigation
thereof, caused or alleged to be caused by said wires, the case
may be tried before the district court of the United States for
the western district of Texas: And provided also, That Congress
reserves the right to withdraw the power and authority
conferred by this act in case the free navigation of the river shall
at any time be substantially or materially obstructed by said
wires, or for any other reason, and to direct the removal of said
wires, or necessary modifications thereof, at the cost and
expense of the owners of said wires . . . ..
26 Stat. 495 (1890). 7
Perhaps if all the United States identified at this stage were these acts
of Congress, we might find clear error based on Oklahoma v. Texas, in which
the Supreme Court, evaluating similar acts, determined that these provisions
were “only precautionary” and “not intended as an affirmation of navigable
capacity in that locality.” 8 258 U.S. 574, 586 (1922). But the district court
relied on additional evidence, outlined supra, of the same sort relied upon by
the Supreme Court in Appalachian Electric:
_____________________
7
The same language was utilized in another act the same year to authorize the
Eagle Pass Water Supply Company and the Compania Proveedora de Aguas de Cuidad
Porforio Diaz to connect their water works communications across the Rio Grande at Eagle
Pass, Texas. 26 Stat. 502 (1890).
8
We note, however, that the acts of Congress through statutes and treaties, at least
shows that Congress considered this stretch of the river historically “susceptible” to use
in commerce and sought to preserve its authority over the river, which is sufficient under
Appalachian Power.
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Use of a stream long abandoned by water commerce is difficult
to prove by abundant evidence. Fourteen authenticated instances
of use in a century and a half by explorers and trappers, coupled
with general historical references to the river as a water route for the
early fur traders and their supplies in pirogues and Durham or
flat-bottomed craft similar to the keelboats of the New [River],
sufficed upon that phase in the case of the DesPlaines.
311 U.S. at 416 (emphasis added). Likewise, here, there are numerous
historical references regarding use in commerce throughout the 1800s.
Additionally, the Supreme Court in Appalachian Electric stressed the
broadness in which it finds navigability: “Nor is it necessary for navigability
that the use should be continuous. The character of the region, its products
and the difficulties or dangers of the navigation influence the regularity and
extent of use. Small traffic compared to the available commerce of the region is
sufficient.” Id. at 409 (emphasis added). “Even absence of use over long
periods of years, because of changed conditions, the coming of the railroad or
improved highways does not affect the navigability of rivers in the
constitutional sense.” Id. at 409-10. “Nor is lack of commercial traffic a bar
to a conclusion of navigability where personal or private use by boats
demonstrates the availability of the stream for the simpler types of commercial
navigation.” Id. at 416 (emphasis added).
Finally, the district court’s finding of historical navigability on the at-
issue portion of the Rio Grande is supported by the Supreme Court’s holding
in United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690 (1899),
relied upon by the district court and the Corps’ Navigability Study. There,
the Supreme Court held that the Rio Grande River is “not navigable within
the territory of New Mexico.” Id. at 695. However, in discussing the
propriety of taking judicial notice of navigability within the territory of Texas,
the Supreme Court expressly stated: “That the Rio Grande, speaking
generally, is a navigable river, is clearly shown by the affidavits. It is also a
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matter of common knowledge, and therefore the courts may properly take
judicial notice of that fact.” Id. at 698. 9
Accordingly, we find no clear error in the district court’s historical
navigability finding. The dissent would demand a higher showing than what
is required. To succeed under the RHA, the United States need not prove
that the Rio Grande was, in fact, historically used for commerce. It need only
show that it was historically susceptible of use for commerce. The evidence
put forth by the United States overwhelmingly supports, at least, the
conclusion that the at-issue segment of the Rio Grande was historically
susceptible of use for commerce. On these facts, we are not left with a
“definite and firm conviction” that the district court erred. Clark, 693 F.2d
at 501-02 (quoting U.S. Gypsum Co., 333 U.S. at 395). Moreover, we expect
the evidence to develop as this case proceeds to the merits. We reiterate the
posture of the case before us. We are not reviewing a permanent, but a
preliminary, injunction. The “extraordinary” nature of a preliminary
injunction does not heighten Winter’s “likely” standard. See Winter, 555
U.S. at 22. For now, this showing is sufficient. 10
ii. Obstruction
Section 10’s first clause bars the “creation of any obstruction not
affirmatively authorized by Congress, to the navigable capacity of any of the
_____________________
9
The Supreme Court’s consideration of the Rio Grande up to New Mexico as
“navigable” should be afforded great, if not dispositive, weight. The precise definition of
“navigable waters” and “navigability” are dependent on judicial determination, not the
findings of administrative agencies. 33 C.F.R. § 329.3. Although the determinations made
by the Corps and the Coast Guard certainly bolster a consensus in the evidence of historical
navigability.
10
Because we find sufficient evidence to affirm the district court’s finding of past
navigability, we do not reach its alternative holding that the Rio Grande was susceptible to
future use in commerce with reasonable improvements.
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waters of the United States.” 33 U.S.C. § 403. After finding navigability,
the district court found obstruction, concluding that “the floating barrier
interferes with or diminishes the navigable capacity of the Rio Grande and
creates a hazard.” Whether there is an obstruction is a question of fact
reviewed for clear error. Rio Grande Dam, 174 U.S. at 709.
Texas argues that to be an obstruction, an object must tend to destroy
the navigable capacity of a waterway. To the contrary, the Supreme Court
has defined an obstruction as tending to “interfere with or diminish[] the
navigable capacity of a stream.” Id. It has also emphasized that its own cases
define “obstruction” as used in Section 10 as “broad enough to include
diminution of the navigable capacity” of the waterway at issue. United States
v. Republic Steel Corp., 362 U.S. 482, 489 (1960). 11 Under this broad
construction, the Supreme Court has previously found matter described as
“fine particles” from an iron mill to be an obstruction under Section 10. Id.
at 483.
The Fifth Circuit has likewise acknowledged the Supreme Court’s
broad interpretation of obstruction. Vieux Carre Prop. Owners, Residents &
Assocs., Inc. v. Brown, 875 F.2d 453, 462-63 (5th Cir. 1989) (“The Supreme
Court has encouraged a broad interpretation of a section 10 ‘obstruction’. .
_____________________
11
The broadness of Section 10’s reading of obstruction is noted no less than five
times. Republic Steel Corp., 362 U.S. at 487 (“[T]he Court. . . gave the concept of
‘obstruction’ as used in § 10, broad sweep . . ..”); id. at 488 (“[I]n Sanitary District Co. of
Chicago v. United States, 266 U.S. 405, 429 [(1925)]. . . the Court citing United States v.
Rio Grande Dam & Irrigation Co., supra, with approval and saying that § 10 of the 1899
Act was ‘a broad expression of policy in unmistakable terms, advancing upon’ § 10 of the
1890 Act.”)); id. at 489 (“That broad construction of § 10 was reaffirmed in State of
Wisconsin v. State of Illinois, 278 U.S. 367 [(1929)] . . ..”); id. at 491 (“We read the 1899 Act
charitably in light of the purpose to be served. The philosophy of the statement of Mr.
Justice Holmes . . . that ‘A river is more than an amenity, it is a treasure,’ forbids a narrow,
cramped reading of either § 13 or of § 10.” (quoting New Jersey v. New York, 283 U.S. 336,
342 (1931)).
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..”). And it has construed the term flexibly, as the district court noted,
without a size or positional limit. See United States v. Raven, 500 F.2d 728,
731 (5th Cir. 1974) (finding a sunken schooner to be an obstruction “[i]f
floating particles can be an obstruction”); United Tex. Transmission Co. v.
U.S. Army Corps of Eng’rs, 7 F.3d 436, 438 (5th Cir. 1993) (finding a pair of
gas pipelines running under the bed of a bayou an obstruction).
Here, the district court began its analysis by noting that Texas
designed and deployed the floating barrier to literally obstruct lateral
movement across the river. 12 It then looked to the credible testimony and
evidence before it.
The declaration of Mario Gomez, Acting Area Operations Manager
for the Amistad Dam Field Office of the United States Section of the
International Boundary and Water Commission (“IBWC”), 13 indicated that
“[n]ormally, the Mexico or U.S. Section of the Commission can go into any
location of the Rio Grande independently and do surveying and other
engineering work that the Commission Sections carry out” but that the
floating barrier is “an impediment to the Sections crossing independently in
this part of the river,” including a planned survey by the Mexican Section of
the Commission that was unable to proceed because of the obstruction.
Likewise, the Chief of the U.S. Border Patrol (“USBP”), Jason D.
Owens, declared that border patrol agents rescue individuals in distress in the
_____________________
12
See Press Release, Office of the Texas Governor, Operation Lone Star Boosts
Border Response with New Marine Barriers (July 14, 2023),
https://gov.texas.gov/news/post/operation-lone-star-boosts-border-response-with-new-
marine-barriers (the floating barrier will “prevent people from even crossing the middle
part of the Rio Grande River and coming into the state of Texas”).
13
The IBWC was established to implement treaties between the United States and
Mexico. Each country has a section, and the “two sections work in concert to implement
treaty requirements and resolve differences that arise during implementation.”
17
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No. 23-50632
Rio Grande, utilizing “small watercraft to quickly respond as the incidents
unfold.” He noted that “[a]ny obstructions in the water could naturally
impair the freedom of movement and potentially delay response times.”
“From the beginning of fiscal year 2018 through July 23, 2023 there were 249
water-related rescues and 89 water-related deaths of individuals whose
rescue or death occurred in or around the Rio Grande throughout the Eagle
Pass Station AOR.” 14
Further, in the declaration of Joseph L. Shelnutt, the Regulatory
Project Manager in the Compliance and Enforcement Branch for the Corps,
he indicates that the “placement and tandem configuration of the buoys,
which allows them to move somewhat independently even though they are
connected, present a structural barrier to cross-river navigation and would
force a vessel to maneuver around the structure to avoid collision or
entanglement at this location.”
The district court also noted that the floating barrier is not simply a
string of buoys but is made even larger by the anchors placed four to six feet
on either side of the barrier: “Photographs show these grey concrete anchors
standing from the bed of the river, with no markings to identify them as
hazards. These concrete obstacles present a serious risk to watercraft of any
_____________________
14
The declarations from employees of the IBWC and USBP show that the floating
barrier is an obstruction to the work of federal officials in this segment. And the United
States’ use of its waterways for more than traditional navigation is an appropriate
consideration. Appalachian Elec., 311 U.S. at 426 (“In our view, it cannot properly be said
that the constitutional power of the United States over its waters is limited to control for
navigation. . .. Flood protection, watershed development, recovery of the cost of
improvements through utilization of power are likewise parts of commerce control. .
.. That authority is as broad as the needs of commerce.”). “The point is that navigable
waters are subject to national planning and control in the broad regulation of commerce
granted the Federal government.” Id. at 426-27. Accordingly, these declarations are
evidence that the floating barrier interferes with the federal government’s activities on the
waterway.
18
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No. 23-50632
kind.” This is because the anchors are not easily seen by oncoming
watercraft but are at a level that would cause damage to a vessel of any size
that came upon them.
Texas’s own declarants state that the portion of the Rio Grande at
issue has many hazards, including “sand bars, shallow water, water with
inconsistent depths, small islands, large rocks, man-made debris, natural
debris such as logs and stumps, and sandy shoals” and that it is “very difficult
and dangerous” even for airboats to operate. As the district court found,
these conditions “make it even more imperative for anyone piloting down the
river to have free reign [sic] of the entire width and a clear view of all
obstacles.”
This evidence, coupled with the Supreme Court’s command to
interpret “obstruction” within Section 10 broadly, supports the district
court’s finding that the floating barrier is an obstruction to the navigable
capacity of the Rio Grande, and we find no clear error. Having made the
requisite showing that Texas is likely in violation of the first clause of Section
10 because its obstruction was not “affirmatively authorized by Congress,”
33 U.S.C. § 403, the United States has shown that it is likely to succeed on
the merits of its first claim.
iii. Other Structure
Section 10’s second clause prohibits “build[ing] or commenc[ing] the
building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty,
or other structures in any. . . navigable river. . . except on plans
recommended by the Chief of Engineers and authorized by the Secretary of
the Army.” 33 U.S.C. § 403. The Corps defines “structure” expansively
including, “without limitation, any pier, boat dock, boat ramp, wharf,
dolphin, weir, boom, breakwater, bulkhead, revetment, riprap, jetty, artificial
island, artificial reef, permanent mooring structure, power transmission line,
19
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No. 23-50632
permanently moored floating vessel, piling, aid to navigation, or any other
obstacle or obstruction.” 33 C.F.R. § 322.2.
The district court found that the floating barrier was a “boom” or
“other structure,” requiring a permit prior to construction, and thus that the
United States was likely to prevail on its Section 10, clause 2 claim. We agree
that it is an “other structure,” and do not consider whether it is a “boom.”
As the United States argues, all the structures listed in Section 10 are
built in water and tend to be obstacles or obstructions to navigation. In other
words, these structures are all tangible objects that “interfere with or
diminish” navigation by requiring vessels to move around them. See Rio
Grande Dam, 174 U.S. at 709 (defining “obstruct”). The barrier fits within
this broad definition because vessels must navigate around the barrier, and
some may even be completely thwarted by its presence.
Texas’s argument that to constitute an “other structure,” the floating
barrier must be permanent is unconvincing. Even if the other enumerated
structures were permanent, Texas has not shown that the floating barrier is
not. The barrier has a “tamper resistant” design and “heavy concrete blocks
placed systematically on the bed of the Rio Grande River to prevent
movement.” And the barrier “is meant to withstand at least a 100-year
flood” and “rise and fall with the elevation of the water while maintaining
the same position on top of the river.” As the district court noted, “Texas’s
own declarants attest that it would take ‘several weeks,’ heavy equipment,
and $300,000 to remove the barrier.” Moreover, Texas has no intention of
removing the barrier after a short time, as is made clear by the current
litigation.
Having also made the requisite showing that Texas is likely in
violation of the second clause of Section 10 because the floating barrier is an
“other structure” built without seeking Corps approval, the district court
20
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No. 23-50632
correctly determined that the United States has shown it is likely to succeed
on the merits of both its RHA claims.
iv. Invasion
Texas argues that the Constitution gives it a right to defend itself from
“invasion,” so it should be exempt from any RHA violations. U.S. Const.
art. I, § 10, cl. 3 (“No state shall, without the Consent of Congress,
. . . engage in War, unless actually invaded, or in such imminent Danger as
will not admit of delay.”). We note that a “preliminary injunction may issue
. . . despite the existence of a plausible defense, as long as the movant
demonstrates a substantial likelihood of success.” Dall. Cowboys
Cheerleaders, Inc. v. Scoreboard Posters, Inc., 600 F.2d 1184, 1188 (5th Cir.
1979). We have already affirmed the district court’s determination that the
United States showed a substantial likelihood of success on the merits.
However, “the district court must at least make clear that it has
considered plausible defenses which are fully briefed and argued by [the]
defendants.” Allied Mktg. Grp., Inc. v. CDL Mrkt., Inc., 878 F.2d 806, 815
(5th Cir. 1989). “While a preliminary injunction may be appropriate even in
the face of potentially significant defenses, it is frequently desirable in such
cases to expedite the trial on the merits.” Id. (citing 11 Charles Alan
Wright & Arthur R. Miller, Federal Practice &
Procedure § 2950, at 484 (1973 & Supp. 1988)); see also Charles A.
Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice & Procedure § 3291.1 (2d ed. 2011) (“Ordinarily the scope
of appellate review under § 1292(a)(1) is confined to the issues necessary to
determine the propriety of the interlocutory order itself. The curtailed
nature of most preliminary injunction proceedings means that the broad
issues of the action are not apt to be ripe for review. . ..”).
21
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No. 23-50632
Here, Texas’s self-defense argument does not preclude the issuance
of a preliminary injunction. First, the district court adequately considered
Texas’s arguments. Further, the district court, mindful of the sensitive
nature of the parties’ interests in this case, sought to expeditiously seek a
determination on the merits. Finally, the gravity of Texas’s argument—
particularly the constitutional implications of a single state’s ability to declare
it is invaded and select its own means of waging war—suggests it would be
best considered on a fully developed record.
“The purpose of a preliminary injunction is to prevent irreparable
injury so as to preserve the court’s ability to render a meaningful decision on
the merits.” Miss. Power & Light, 760 F.2d at 627 (citing Canal Auth. of State
of Fla. v. Callaway, 489 F.2d 567, 576 (5th Cir. 1974)). The evidence before
the district court did not show that the floating barrier had any meaningful
impact on deterring any perceived “invasion,” so its removal is unlikely to
cause Texas irreparable injury. 15 Accordingly, the preliminary injunction
appropriately maintains the status quo while the district court expeditiously
considers the case on its merits.
B. Balance of Equities
Since its issuance, Winter v. Natural Resources Defense Council, Inc.,
555 U.S. 7 (2008), has been the guidepost for determining whether a plaintiff
has made an adequate showing to warrant entry of a preliminary injunction.
The United States has shown a likelihood of success on the merits, so we turn
to whether it has shown a likelihood of irreparable harm absent preliminary
relief, that the balance of equities tips in its favor, and that an injunction is in
the public interest. Id. at 20.
_____________________
15
As discussed below, however, its continued presence will likely result in
irreparable harm absent preliminary injunctive relief.
22
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No. 23-50632
The district court, in the alternative to its holding that it need not
consider these additional factors where the United States enforces a public-
interest statute, expressly addressed each one. 16 Its balancing was not an
abuse of discretion.
First, the district court considered whether the United States had
demonstrated “that irreparable injury is likely in the absence of an
injunction.” Winter, 555 U.S. at 22. It pointed to the “tremendous strain”
on the U.S.-Mexico relationship. It further found that the floating barrier
“threatens the IBWC’s ability to implement the core provisions of the 1944
Treaty between the United States and Mexico, which is crucial to allocation
of waters in the Rio Grande,” and that one meeting concerning water releases
was already cancelled by the Mexican Section of the IBWC due to the
presence of the floating barrier. The district court also found that the floating
barrier posed a risk to human life, which is supported by Texas’s own
statements noting the treachery of venturing across the Rio Grande. 17 The
weight of the evidence before the district court supports its conclusion.
_____________________
16
We leave for another day the argument of whether Winter overrules the line of
cases in this circuit (and others) that hold that when the United States seeks an injunction
enforcing a public-interest statute, a court may grant a preliminary injunction “without
making findings of irreparable harm, inadequacy of legal remedy, or the balance of
convenience.” United States v. Marine Shale Processors, 81 F.3d 1329, 1358 (5th Cir. 1996);
see also United States v. FDIC, 881 F.2d 207, 210 (5th Cir. 1989) (“However, if a statutory
violation is involved and the statute by necessary and inescapable inference requires
injunctive relief, the movant is not required to prove the injury and public interest
factors.”). We need not consider this argument now, as the district court, in the
alternative, performed the Winter balancing of equities.
17
Though Texas vigorously disputes whether people have died because of the
floating barrier, Governor Abbott’s own letter to President Biden acknowledges the harm
posed in crossing the Rio Grande: “Neither of us wants to see another death in the Rio
Grande River. 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.”
23
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No. 23-50632
The declaration of Jennifer T. Pena, Chief Legal Counsel for the
United States Section of the IBWC, discussed the collaboration between the
United States and Mexico. In a 1944 Treaty between the United States and
Mexico called the “Utilization of Waters of the Colorado and Tijuana and of
the Rio Grande,” the two countries agreed “how to allocate the waters of the
bi-national rivers in the Treaty title, including the Rio Grande.” In a 1970
Treaty to Resolve Pending Boundary Differences and Maintain the Rio
Grande and Colorado River as the International Boundary, both countries
agreed “that the international boundary will be the middle of the channel
occupied by the normal flow of the river.” Because river channels may shift
over time, the countries agreed to take measures to stabilize and prevent
shifts, including by “prohibit[ing] the construction of works in its territory
which . . . may cause deflection or obstruction of the normal flow of the river
or of its flood flows.”
The floating barrier “has been the subject of a series of
correspondence from the Mexican section of the IBWC” and is “interfering
with the ability of the IBWC to fulfill its mission.” On July 14, 2023,
Mexico’s Section of the IBWC “objected to the placement of the buoys and
requested intervention of the United States Section to remove the buoys.”
It further reported that, “as a result of the floating barriers in Eagle Pass,
Mexico was cancelling a July 24, 2023, meeting concerning water releases to
the United States from the Rio Conchos River in Mexico.” In a July 14, 2023,
meeting between the Texas Commission on Environmental Quality and the
IBWC to discuss delivery by Mexico to the United States of water from the
Rio Grande, Mexico’s Section of the IBWC indicated that Texas’s unilateral
actions “could affect cooperation between the two countries going forward.”
Currently, the United States and Mexico are in the midst of trying to
reach an agreement by December 2023 on a “new mechanism to improve the
predictability and reliability of Rio Grande water delivery from Mexico to the
24
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No. 23-50632
United States” and discussions are “at a sensitive stage.” “By causing
Mexico to rethink and limit its cooperation with the United States, Texas’s
floating barrier interferes with IBWC’s ability to implement its core mission
of implementation of the 1944 Water Treaty for deliveries of water on the Rio
Grande.” “[I]f the proposed [structure] and appropriation of waters of the
Rio Grande constitute a breach of treaty obligations or of international duty
to Mexico, they also constitute an equal injury and wrong to the people of the
United States.” Rio Grande Dam, 174 U.S. at 701.
On July 24, 2023, Hillary Quam, the U.S.-Mexico Border Coordinator
at the U.S. Department of State and acting Director of the Office of Mexican
Affairs, declared that if the barrier “is not removed expeditiously, its
presence will have an adverse impact on U.S. foreign policy,” and that
Mexico “[o]n a number of different occasions beginning in late June, 2023”
has “protested to the United States the deployment of a floating barrier
within the Rio Grande.” Mexico has protested the installation of the floating
barrier, “asserting that it causes obstruction and deflection of the river as well
as possible runoff into Mexican territory” “in contravention of the
provisions of the 1970 Treaty.”
In a supplemental declaration on August 15, Ms. Quam indicated as
follows:
The Government of Mexico has continued to protest to the
United States the deployment of the barrier. On August 10, the
Secretary of State held a meeting in Washington, D.C., with his
counterpart from Mexico, Foreign Secretary Alicia Bárcena
. . . The topic of the floating barrier was the first one raised by
Foreign Secretary Bárcena. The Foreign Secretary indicated
that Mexico is very concerned about the floating barrier and
grateful for this lawsuit.
The President of Mexico, Andrés Manuel López Obrador, in his daily press
conference, has discussed the matter of the floating barrier at least six times
25
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since July 25, 2023. Crediting this evidence to find a likelihood of irreparable
harm was not erroneous. 18
Turning to the balance of equities and the public interest, when the
United States is a party, the third and fourth elements of the traditional
preliminary injunction analysis merge. Cf. Nken v. Holder, 556 U.S. 418, 435
(2009). The district court found that “the barrier’s threat to human life, its
impairment to free and safe navigation, and its contraindication to the
balance of priorities Congress struck in the RHA outweigh Texas’s interest
in implementing its buoy barrier in the Rio Grande River.”
The district court, in finding that the public interest favored the
United States, emphasized Supreme Court decisions. In Sanitary District of
Chicago v. United States, 266 U.S. 405 (1925), the Supreme Court stated:
“There is no question that this power [to remove obstructions to interstate
and foreign commerce] is superior to that of the States to provide for the
welfare or necessities of their inhabitants.” Id. at 426. More pointedly, in
Arizona v. United States, 567 U.S. 387 (2012), the Supreme Court noted that
while Arizona “may have understandable frustrations with the problems
caused by illegal immigration,” as Texas has alleged, “the State may not
pursue policies that undermine federal law.” Id. at 416.
_____________________
18
The dissent faults the scope of the injunctive relief—as the district court only
required that the barrier be moved to the shoreline, rather than entirely removed—as failing
to remedy the United States’ diplomatic harms. But this overlooks the fact that the
President of Mexico spoke positively of the district court’s injunction during his daily press
conference on September 7, 2023. Further, Mexico’s expressed concerns sprung from the
treaty obligations between the countries that require the river be free of obstructions.
Moving the barrier to the riverbank alleviates this concern and allows the district court to
proceed to the merits without requiring Texas to dismantle the barrier entirely.
26
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No. 23-50632
Further, the district court emphasized that the “balance of priorities
Congress struck in the RHA” outweighed Texas’s asserted interests. Courts
may look at the statute at issue for guidance in determining whether the
issuance of a preliminary injunction would be in the public interest. See, e.g.,
Amoco Production Co. v. Village of Gambell, AK, 480 U.S. 531, 544 (1987)
(finding the public interest promoted by the Alaska National Interest Lands
Conservation Act was “to protect Alaskan subsistence resources from
unnecessary destruction,” rather than preventing the actions the plaintiff
sought to enjoin). Congress has spoken to the public interest through passage
of the RHA, and the Supreme Court has emphasized the same: “We are
dealing here with the sovereign powers of the Union, the Nation’s right that
its waterways be utilized for the interests of the commerce of the whole
country.” Appalachian Elec., 311 U.S. at 405. 19
The district court relied on all the evidence discussed herein to find
that the balance of hardships tips in favor of the United States. It considered
the threat to navigation and federal government operations on the Rio
Grande, 20 as well as the potential threat to human life the floating barrier
_____________________
19
See also U.S. v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 70 (1913) (“But
every such structure in the water of a navigable river is subordinate to the right of navigation
. . . and must be removed if Congress, in the assertion of its power over navigation, shall
determine that their continuance is detrimental to the public interest in the navigation of
the river.”).
20
We also consider the danger to federal government operations, including those
of the Border Patrol, IBWC, and Coast Guard, to be particularly concerning. At this stage,
the showing is sufficient, and the United States can hardly be faulted for being unable to
produce even more evidence of the dangers the floating barrier poses. As noted in Captain
Justin Peters’s declaration, because Texas did not seek a permit by the Corps, the Coast
Guard has not been able to consider “the impact of the structure on the safety of navigation
as well as the traditional and possible uses of the waterway including possible impact on
future Coast Guard mission tasking,” as well as “the location of the structure in relation to
the navigable channel, navigational traffic patterns, difficulty of navigation in the vicinity
of the structure, the nature of maritime activity in the vicinity of the structure, the nature
27
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No. 23-50632
created. All of the district court’s findings of fact were well supported by the
record, and its conclusion that the equities favor issuance of a preliminary
injunction was not an abuse of discretion.
IV. CONCLUSION
The district court’s factual findings were not clearly erroneous. Its
grant of a preliminary injunction was not an abuse of discretion, as the United
States carried its burden. Accordingly, we DISSOLVE the administrative
stay and AFFIRM. Texas’s motion to stay the district court’s preliminary
injunction pending appeal is DENIED AS MOOT.
_____________________
of the structure, and the potential for the structure to move with tidal or weather
conditions.” In Shelnutt’s declaration, he indicates that the Corps “were unable to
determine, among other things, the exact methods of construction and whether the floating
barrier was sufficiently anchored to ensure it remained in place,” as well as “any overall
effects from the floating barrier on public safety, use of the Rio Grande in that area, and
other public interest factors.” Finally, “because no information was submitted for project
evaluation and potential permitting, it is unknown if the structure meets engineering
standards to withstand predicted high flows. Should segments of the structure, or the
entire structure, become unmoored from its location and travel downstream, further risks
to navigation and safety could reasonably be assumed.” This is particularly troubling
considering the August 15, 2023, declaration of the United States showing that nearly 80
percent of the floating barrier had drifted out of alignment and into Mexican waters. The
ambiguity and concerns surrounding the impact of the floating barrier, which have not been
properly evaluated by relevant agencies because of Texas’s unilateral action, support the
grant of a preliminary injunction.
28
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No. 23-50632
Don R. Willett, Circuit Judge, dissenting:
In response to millions of illegal border crossings in recent years,
accompanied by millions of pounds of smuggled drugs, Texas Governor Greg
Abbott deployed a floating barrier along a 1,000-foot stretch of the Rio
Grande near Eagle Pass, a popular crossing spot. The bright orange chain of
tethered buoys—a floating border wall anchored to the riverbed by concrete
blocks—is Governor Abbott’s latest effort to quell the record influx of illegal
crossings, something he has declared an “invasion.”
Today, the majority opinion upholds the district court’s grant of a
preliminary injunction requiring Texas to cease work on the barrier and shift
it to the Texas riverbank. I disagree and would vacate the injunction entered
by the district court, as the United States has failed to carry its burden on any
of the four preliminary injunction factors.
With deepest admiration for my colleagues, I respectfully dissent.
* * *
“A preliminary injunction is an extraordinary remedy” not to be
granted freely. 1 The district court should deny relief “unless the party
seeking it has clearly carried the burden of persuasion” 2 by showing four
things: (1) they are likely to succeed on the merits, (2) they are likely to suffer
irreparable harm without an injunction, (3) the balance of the equities tips in
their favor, and (4) an injunction is in the public interest. 3
_____________________
1
Dennis Melancon, Inc. v. City of New Orleans, 703 F.3d 262, 268 (5th Cir. 2012).
2
Id. (quoting Planned Parenthood Ass’n of Hidalgo Cnty. Tex., Inc. v. Suehs, 692 F.3d
343, 348 (5th Cir. 2012)).
3
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
29
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No. 23-50632
As for factor one—likelihood of success on the merits—the United
States’ claim under § 10 of the Rivers and Harbors Act (RHA) is unlikely to
prevail. 4 Both the district court and the majority opinion cite inapplicable
statutes, treaties, cases, and other evidence to argue that this segment of the
Rio Grande is navigable and thus subject to the RHA. But the district court’s
erroneous navigability finding—and the majority’s affirmance—cannot be
squared with a century-plus of precedent.
The United States also falls short on the three other preliminary
injunction factors. It is entirely unclear how the preliminary injunction—
which orders the barrier to be moved, but not removed (as Mexico
demands)—remedies the United States’ diplomatic harms. And as for the
balance of the equities and public interest, the United States offers no
substantiated record evidence that could justify a preliminary injunction.
I
The United States has not shown a likelihood of success on the merits
of its claim under the first two clauses of RHA § 10. Under both clauses, the
United States must show that this 1,000-foot stretch of the Rio Grande is
navigable—but it cannot. More than a century of precedent points to only
one conclusion: This 1,000-foot segment is not navigable.
The majority opinion and the district court overlook this well-settled
law and distort the test for navigability. Despite the majority’s and district
court’s many attempts to argue otherwise, the United States has not shown
that it will likely prevail in demonstrating that these 1,000 feet were
historically used or susceptible of use in interstate or foreign commerce and
_____________________
4
See id.; see also Mock v. Garland, 75 F.4th 563, 587 n.60 (5th Cir. 2023) (“There
is authority that the first factor—likelihood of success on the merits—is the most important
of the preliminary injunction factors.”).
30
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No. 23-50632
thus historically navigable. 5 The majority does not reach the district court’s
alternative holding—that this Rio Grande segment is navigable because
reasonable improvements could make it susceptible of future commercial
use. But the district court erred there, too: The United States cannot show
that it will likely prevail in establishing navigability on this ground because it
has failed to present evidence that any improvements would be reasonable. 6
A
In upholding the district court’s finding of historical navigability, the
majority opinion repeats many of the district court’s mistakes—and makes
some new ones of its own.
1
Start with the mistakes that the majority opinion and the district court
share. Both recite statutes, treaties, a 1975 study by the United States Army
Corps of Engineers (the Corps), and cases that they say show historical
_____________________
5
This is the proper test for historical navigability. See, e.g., Econ. Light & Power Co.
v. United States, 256 U.S. 113, 123–24 (1921) (holding that waters are navigable even if they
are “not at present used for such commerce” or are currently “incapable of such use” so
long as they previously had “actual navigable capacity in [their] natural state and [were]
capable of carrying commerce among the states”); United States v. Appalachian Elec. Power
Co., 311 U.S. 377, 407 (1940) (“A waterway, otherwise suitable for navigation, is not barred
from that classification merely because artificial aids must make the highway suitable for
use before commercial navigation may be undertaken.”).
6
The district court did not decide whether this 1,000-foot stretch is presently used
or susceptible of use for interstate or foreign commerce. The United States does not argue
that it is. Regardless, the record is replete with evidence that it is not. Accordingly, this Rio
Grande segment cannot be deemed navigable based on present commercial use or
susceptibility. See The Montello, 87 U.S. 430, 439 (1874) (stating that waters are navigable
“when they are used, or are susceptible of being used, . . . as highways for commerce”).
31
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No. 23-50632
navigability. But this evidence does not show that this 1,000-foot segment of
the Rio Grande was historically used or susceptible of use in commerce.
First, the statutes. The district court should not have relied on these
statutes to find navigability. In Oklahoma v. Texas, the Supreme Court said in
no uncertain terms that a similar act that “provided in substance that there
should be no interference with navigation . . . was only precautionary and not
intended as an affirmation of navigable capacity in that locality.” 7 The
statutes cited by the district court and the majority, like the statute in
Oklahoma, do not make the necessary factual findings 8 that the Rio Grande
was used or susceptible of use in commerce; they only prohibit obstructions
to navigation. 9 In Oklahoma, the Supreme Court explained that this
prohibitory language was merely Congress playing it safe by barring
obstructions in case that segment of the river turned out to be navigable. 10 We
should not read these statutes as saying more than they do.
Second, the treaties. Like the district court, the majority points to the
Treaty of Guadalupe Hidalgo and the Gadsden Treaty, which require the
United States and Mexico to maintain “free and common” “navigation of”
the Rio Grande below New Mexico. But point is all the majority and district
_____________________
7
258 U.S. 574, 585–86 (1922).
8
See Appalachian Elec., 311 U.S. at 405 (“The navigability of the [river segment] is,
of course, a factual question . . . .”).
9
See, e.g., Act of Mar. 4, 1923, 67 Cong. Ch. 254, 42 Stat. 1482 (granting consent
of Congress to Eagle Pass and Piedras Negras Bridge Company for construction of a bridge
across the Rio Grande); Act of Sept. 27, 1890, 51 Cong. Ch. 1002, 26 Stat. 495 (authorizing
the Texas-Mexican Electric Light and Power Company to erect wires across the Rio
Grande at Eagle Pass); Act of May 29, 1884, 48 Cong. Ch. 57, 23 Stat. 29 (authorizing the
construction of a bridge over the Rio Grande between Eagle Pass and Piedras Negras).
10
See Oklahoma, 258 U.S. at 586 (“Congress merely took the perfectly safe course
of qualifying its permission as indicated.”).
32
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court do. They give no reason—because there is none—why these treaties
establish navigability and are not merely precatory.
Even a cursory review of the case law shows that these treaties do not
establish navigability. In United States v. Rio Grande Dam & Irrigation
Company, the Supreme Court said that these treaties obligated the United
States “to preserve . . . the navigability of its navigable waters.” 11 That is,
whether the river is navigable is a preliminary question that is not answered
by the treaties themselves. Oklahoma suggests the same. Like the statute in
Oklahoma, these treaties do not make specific factual findings of navigability
and provide only that there should be no interference with “free and
common” navigation. 12 On Oklahoma’s reasoning, then, the treaties are not
“affirmation[s] of navigable capacity” but rather “precautionary”
statements that navigability should not be obstructed where it exists. 13 Because
the treaties cannot establish navigability, the majority opinion also
improperly relies on the United States Coast Guard’s 1984 navigability
determination—which itself relies on these treaties.
Third, the Corps’s 1975 study. The majority opinion and the district
court cite the Corps’s 1975 study and subsequent determination that the Rio
Grande is navigable—but the Corps never found navigability based on
historical or then-current use. 14 The Corps observed that there was “no
[then-current] commercial activity occurring within” that stretch of the river
_____________________
11
174 U.S. 690, 700–01 (1899) (emphasis added).
12
See Oklahoma, 258 U.S. at 585–86.
13
See id. at 586.
14
The majority also cites a 2011 document in which the Corps lists the Rio Grande
as a navigable water. As the United States acknowledges, this 2011 navigability
determination was based on the Corps’s 1975 study. Because reliance on the 1975 study is
improper, so too is reliance on the 2011 list improper.
33
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and that there were only “sketchy accounts on [past] use.” The Corps
instead found navigability based on the treaties and the Supreme Court’s
decision in Rio Grande Dam, which, as I explain, was improper. The majority
opinion admits that the Corps’s navigability finding was not based on past
use—but it inconspicuously relegates that concession to a footnote and
avoids mentioning that the Corps criticized the historical evidence on which
it now relies.
Like the district court, the majority opinion looks under the hood at
the Corps’s historical findings. But the majority’s and district court’s
analyses of this historical evidence are flawed. Both overlook a key feature of
the test for navigability: Use of the river must have been more than
“sporadic,” “ineffective,” 15 and “exceptional.” 16
Any evidence of past use in the Corps’s study is too sporadic and
exceptional to establish historical navigability. The majority opinion and the
district court both cite an anecdote that, in 1850, “[a] keelboat and a skiff,
manned by sixteen men, ascended the river by channel to a point a thousand
miles above the head of steam travel,” which was Roma, Texas. But the
district court omitted—and the majority opinion overlooks—that this
historical account also described the expedition as “an astonishing
penetration for a river with so little water.” And they ignore the Corps’s
comment that “[t]here is no showing that substantial items of commerce
were shipped from [Roma]” at the time of the expedition. In context, this
expedition is at most an “exceptional” use of the river, which does not suffice
to show navigability. 17
_____________________
15
United States v. Oregon, 295 U.S. 1, 23 (1935).
16
Rio Grande Dam, 174 U.S. at 699.
17
See id.34
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In addition, the Corps stated that “there apparently has never been
any ‘practical navigation’ between Roma . . . and El Paso” and that “at
normal stages the river apparently was not navigable above Rio Grande
City.” Even “during periods of sufficient flow,” only “fishing boats and
other shallow draft craft” could navigate the river. As the Supreme Court
explained, navigability does not extend to “every small creek in which a
fishing skiff or gunning canoe can be made to float at high water.” 18 Rather,
to be historically navigable, the river must have been suitable “as [a]
highway[] for commerce, over which trade and travel [was] or [could have
been] conducted in the customary modes of trade and travel on water.” 19
There is no evidence of that here. As the Corps said, any accounts of the
river’s use were “sketchy,” and “actual accounts of commercial travel
[were] lacking.” And given the “serious ecological objections to any
channelization” and “doubtful” economic justifications, there were no
reasonable improvements that could have permitted commercial use of that
stretch of the river. 20 Because the Corps’s study does not show that the river
segment was used or susceptible of use in commerce, it does not support the
district court’s finding of historical navigability.
Fourth, the cases. The majority opinion and the district court cite
cases that mention past ferry traffic across the Rio Grande at Eagle Pass. But
bank-to-bank traffic alone has never established navigability. Because the test
for historical navigability turns on whether the water was used or susceptible
_____________________
18
Id. at 698–99 (citation omitted).
19
The Montello, 87 U.S. at 439.
20
See Appalachian Elec., 311 U.S. at 408–09 (stating that “[a] waterway, otherwise
suitable for navigation, is not barred from that classification merely because artificial aids
must make the highway suitable for use before commercial navigation may be undertaken”
and that “[t]here must be a balance between cost and need at a time when the improvement
would be useful”).
35
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of use as a “highway for commerce,” there must also be evidence of
commerce or navigation along the river. 21 Consistent with this view, the
Supreme Court in United States v. Appalachian Electric Power Company did
not rely solely on evidence of ten “small public ferries going from one bank
to the other” to find navigability. 22 Rather, the Court cited ample evidence
of boating and commerce along the river, including “[f]ourteen
authenticated instances of use . . . by explorers and trappers,” “general
historical references to the river as a water route for the early fur traders,”
and “evidence of actual use of [one segment] for commerce.” 23 Our circuit
has taken the same approach. In Puente de Reynosa, S.A. v. City of McAllen,
we noted that there was ferrying across the river—but we also observed “that
high-pressure steamboats [previously] made frequent trips up [that segment
of] the Rio Grande” and that “small boats continue to be navigated on the
river” before finding that segment navigable. 24
_____________________
21
See Econ. Light & Power Co., 256 U.S. at 121 (quoting The Montello, 87 U.S. at
439); see also Appalachian Elec., 311 U.S. at 413–15 (describing evidence of boating “along”
the river); Rio Grande Dam, 174 U.S. at 699 (noting that “the Fox river, which was
considered [by the Supreme Court] in [The Montello],” had “a general capacity for
navigation along its entire length” (emphasis added)). As one court persuasively observed,
“[T]he existence of ferries is no more an example of commercial use than the presence of
a bridge or railroad trestle whose primary purpose is to avoid the river rather than to employ
it as a means for trade and transportation.” United States v. Crow, Pope & Land Enters., Inc.,
340 F. Supp. 25, 35 (N.D. Ga. 1972). The majority opinion argues that Crow is inapposite
because here, unlike in Crow, the ferries cross an international boundary. But Crow did not
distinguish between intrastate and cross-border ferry traffic when making this observation.
See id. Its general comment about ferry traffic is thus still persuasive.
22
See Appalachian Elec., 311 U.S. at 413 & n.46.
23
Id. at 416; see also id. at 413–15.
24
357 F.2d 43, 50–51 (5th Cir. 1966) (determining the Rio Grande’s navigability
near the Hidalgo-Reynosa Bridge).
36
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Accordingly, without sufficient evidence of past use or susceptibility
to use in commerce along this 1,000-foot Rio Grande segment, there can be
no finding of historical navigability. As explained, the “sketchy” historical
accounts of activity along the river are nowhere near as extensive as those in
Appalachian Electric and do not establish navigability.
The majority opinion thus repeats the district court’s mistakes. Both
engage only partially with the case law and record, overlooking signs that this
stretch of the river was not used or susceptible of use in commerce—and thus
not historically navigable.
2
In an attempt to bolster the district court’s erroneous conclusions, the
majority opinion points to additional historical anecdotes and the Supreme
Court’s opinion in Rio Grande Dam. But in doing so, it makes two new,
unforced errors: It would have us ignore Texas geography and give
dispositive weight to an out-of-context quote from the Supreme Court.
First, the majority opinion quotes historical anecdotes that refer to
other parts of the Rio Grande—not this specific 1,000-foot segment near
Eagle Pass. Whether the Rio Grande was historically navigable along these
other segments has zero bearing here because we analyze navigability of this
segment only. 25
Consider the majority opinion’s quote from the 1949 book Rio Grande,
River of Destiny by Laura Gilpin. Nothing in that quote suggests that this
_____________________
25
See Rio Grande Dam, 174 U.S. at 698–99 (determining whether the segment of
the Rio Grande within New Mexico is navigable); 33 C.F.R. § 329.11(b) (“The character
of a river will, at some point along its length, change from navigable to non-navigable.”);
cf. PPL Montana, LLC v. Montana, 565 U.S. 576, 593 (2012) (“To determine title to a
riverbed under the equal-footing doctrine, this Court considers the river on a segment-by-
segment basis to assess whether [it] . . . is navigable or not.”).
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1,000-foot stretch is within the 200 navigable miles that Gilpin describes.
The quote mentions the 200-mile segment and then says that goods were
brought to the Rio Grande’s mouth at the Gulf of Mexico, more than two
hundred miles from inland Eagle Pass. This suggests that Gilpin’s 200-mile
navigable segment started at the Rio Grande’s mouth and thus stopped short
of where the barrier is today. The majority’s quote from People and Plots on
the Rio Grande suffers from a similar geographic flaw. That quote describes
navigation “between [Fort] Ringgold and Brownsville, and to some extent as
far up as Laredo.” 26 But our 1,000-foot segment is much further inland than
Fort Ringgold, Brownsville, and Laredo. These quotes are thus irrelevant.
Second, the majority opinion omits the context surrounding the
Supreme Court’s comment in Rio Grande Dam that courts may take judicial
notice “[t]hat the Rio Grande, speaking generally, is a navigable river.” 27
After stripping the qualifying language, the majority says we should give this
quote “great, if not dispositive, weight.”
The surrounding language in Rio Grande Dam shows that this quote is
not persuasive, let alone dispositive. The Supreme Court suggested only that
courts could take judicial notice “[t]hat the Rio Grande, speaking generally, is
a navigable river” because it is common knowledge. 28 The Court was careful
to underscore a critical point: “[H]ow far up the stream navigability
extends . . . should be determined by evidence” if it is not “a matter of
general knowledge, or one that ought to be generally known.” 29 The Court
_____________________
26
Logically, this quote must refer to “Fort Ringgold.” The modern Ringgold is
near Texas’s border with Oklahoma.
27
See Rio Grande Dam, 174 U.S. at 698.
28
Id. (emphasis added).
29
Id.38
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added, “[I]t is not so clear that it can fairly be said . . . [that it is] a matter of
common knowledge at what particular place between its mouth and its source
navigability ceases.” 30
In Rio Grande Dam, the Supreme Court tellingly did not take judicial
notice that the Rio Grande was navigable within New Mexico—instead, it
examined “affidavits and other evidence.” 31 And, the real kicker, it
concluded that the segment was not navigable. 32 Judicial notice of the Rio
Grande’s general capacity for navigation clearly does not displace or even
supplement our standard fact-driven, segment-by-segment navigability test.
As today’s dispute shows, the navigability of this 1,000-foot Rio Grande
segment is far from common knowledge. The Supreme Court’s comment
about judicial notice thus has no role here.
In sum, there is not sufficient evidence to find that the United States
is likely to prevail in showing that this specific 1,000-foot stretch of the Rio
Grande was historically used or susceptible of use in commerce. The district
court clearly erred in finding navigability on this ground.
B
Because the majority opinion affirms the district court’s finding that
this 1,000-foot segment was historically navigable, it does not reach the
district court’s alternative holding: that this part of the river is navigable
_____________________
30
Id.31
Id.32
Id. at 698–99.
39
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because it could be used for commerce with reasonable improvements. 33 I
would reject this alternative holding, too.
Navigable waters include those that are not presently used as
highways for commerce but could be after reasonable improvements. 34 Key
is the word “reasonable.” 35 That is, “[t]here must be a balance between cost
and need at a time when the improvement would be useful.” 36
The district court said only that future improvements are
“possible”—it did not attempt to assess costs and benefits. But how could
it? The United States has presented no evidence of costs or commercial
benefits. 37 The record thus does not support the district court’s holding that
the Rio Grande segment is navigable because reasonable improvements could
make it suitable for commerce.
* * *
Because the United States cannot show that this segment is navigable,
based on historical evidence or on future reasonable improvements, its RHA
claim cannot succeed. 38 The United States thus fails to show a likelihood of
_____________________
33
See Appalachian Elec., 311 U.S. at 408–09.
34
Id.
35
Id. at 408.
36
Id. at 407–08; see also Lykes Bros. Inc. v. U.S. Army Corps of Eng’rs, 821 F. Supp.
1457, 1464 (M.D. Fla. 1993), aff’d, 64 F.3d 630 (11th Cir. 1995) (suggesting that “the costs
of improvement [must] be justified by the benefits to commercial transit in th[e] area”);
Sierra Pac. Power Co. v. FERC, 681 F.2d 1134, 1139 & n.5 (9th Cir. 1982) (weighing costs
and benefits).
37
See Appalachian Elec., 311 U.S. at 407–08; Lykes Bros. Inc., 821 F. Supp. at 1464(“The Corps failed to present any evidence of the cost of such improvements or evidence
of any commerce which would rely on the creek should such improvements be made.”).
38
As mentioned before, this Rio Grande segment also cannot be deemed navigable
based on present commercial use or susceptibility. See supra note 6.
40
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success on the merits—“the most important of the preliminary injunction
factors.” 39
II
The United States fares no better on the last three preliminary
injunctions factors: It has not shown that it “is likely to suffer irreparable
harm in the absence of preliminary relief, that the balance of equities tips in
[its] favor, and that an injunction is in the public interest.” 40
The district court erred in concluding that the United States was likely
to suffer irreparable harm without the preliminary injunction. Critically, it is
entirely unclear how the injunction alleviates the United States’ diplomatic
harms. The record indicates that the alleged harms arise from the
“construction and presence” of the barrier and that Mexico has demanded
the barrier’s “prompt removal.” The preliminary injunction, however,
requires Texas to shift the barrier to the Texas bank, not remove it from the
river. If the district court credited the United States’ allegations of harm,
then it should have ordered the barrier to be not just moved but removed. Only
complete removal would eliminate the “construction and presence” of the
barrier and meet Mexico’s demands. The district court’s justification is
unsatisfying: It suggested only that ordering removal would not be a
“measured” response suitable for the preliminary injunction stage, wholly
ignoring the mismatch between the United States’ alleged harms and the
remedy it prescribed. That the district court entered a preliminary injunction
_____________________
39
See Mock, 75 F.4th at 587 n.60.
40
See Winter, 555 U.S. at 20.
41
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that is nonresponsive to the United States’ alleged diplomatic harms suggests
that those harms are merely speculative. 41
The United States also fails to show that the balance of the equities
and the public interest favor granting the injunction. The district court
erroneously identified three reasons that it said favor the United States: the
barrier threatens human life and safety, impairs navigation, and violates the
RHA.
First, Texas and the district court disagree about the barrier’s safety
and usefulness for deterring drug trafficking. Texas argues that the barrier
“was designed . . . to save lives and direct migrants to appropriate . . . points
of entry while deterring unlawful, dangerous crossings; drug smuggling;
human trafficking; and terrorist infiltration” at “one of the most active drug-
trafficking and human-trafficking hotspots on the river.” At this stage,
however, Texas has not offered concrete evidence that the barrier has saved
lives or reduced illegal crossings and drug trafficking.
On the other side, the United States—which bears the burden on the
preliminary injunction factors 42—has offered no credible evidence of harm.
Curiously, the district court tried to spin the river’s naturally treacherous
conditions as evidence that the barrier is dangerous. The majority opinion
also makes that logical leap, but I cannot. To support the district court’s
assessment, the majority opinion cites a quote by Governor Abbott that
migrants “risk their lives by crossing illegally through the [Rio Grande].”
The majority opinion holds this out as evidence that “the floating barrier
_____________________
41
See Janvey v. Alguire, 647 F.3d 585, 601 (5th Cir. 2011) (“The party seeking a
preliminary injunction must also show that the threatened harm is more than mere
speculation.”).
42
See Byrum v. Landreth, 566 F.3d 442, 446 (5th Cir. 2009).
42
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pose[s] a risk to human life.” But Governor Abbott was talking about the
danger posed by the river, not the barrier. The majority opinion cannot
misread Governor Abbott’s comment to save the United States on these
preliminary injunction factors.
The district court also erred in taking judicial notice of news articles
that reported that two dead bodies were found near the barrier. 43 Although
“courts reviewing preliminary injunctions can take judicial notice of
subsequent factual developments,” 44 those facts must still be proper material
for judicial notice under Federal Rule of Evidence 201. 45 Under that rule, a
district court “may judicially notice a fact that is not subject to reasonable
dispute because it: (1) is generally known within the trial court’s territorial
jurisdiction; or (2) can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.” 46 The news articles
satisfy neither prong: It was not established that the facts were “generally
known within the” district court’s jurisdiction, and Texas reasonably
questioned the articles’ accuracy. 47 The district court should not have found
on the evidence before it that the barrier is a “threat to human life.”
Second, the district court should not have found that the barrier is an
“impairment to free and safe navigation” and a “contraindication to the
_____________________
43
See Petrobras Am., Inc. v. Samsung Heavy Indus. Co., Ltd., 9 F.4th 247, 255 (5th
Cir. 2021) (per curiam) (“We review a district court’s decision whether to take judicial
notice for abuse of discretion.”).
44
Valentine v. Collier, 960 F.3d 707, 708 n.1 (5th Cir. 2020) (Davis, J., concurring)
(collecting cases).
45
Kinnett Dairies, Inc. v. Farrow, 580 F.2d 1260, 1277 n.33 (5th Cir. 1978) (noting
that Federal Rule of Evidence 201 applied in a preliminary injunction hearing).
46
Fed. R. Evid. 201(b)(1)–(2).
47
See Petrobras Am., Inc., 9 F.4th at 255 (“The newspaper articles in this case were
not proper material for judicial notice.”).
43
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balance of priorities Congress struck in the RHA.” Because this Rio Grande
segment is not navigable and the United States is likely to fail on its RHA
claim, neither of these factors carries weight.
In sum, the district court’s analysis of these equitable factors was
unpersuasive, unsubstantiated, and incorrect—and the majority opinion
repeats the error. The United States has not carried its burden.
III
A preliminary injunction is an exceptional remedy that requires the
moving party to clearly satisfy all four requirements. In this case, the United
States cannot satisfy one, much less all four.
The law and the record are clear: The United States cannot succeed
on its RHA claim because it has not shown that this 1,000-foot segment of
the Rio Grande is navigable. In reaching the opposite conclusion, the majority
opinion and the district court resort to evidence that is foreclosed to us by a
century-plus of case law. Nor can the United States satisfy the three other
preliminary injunction factors.
As the United States has not “clearly carried the burden of
persuasion” 48 on even one requirement to obtain the “extraordinary
remedy” 49 of a preliminary injunction, I respectfully dissent.
_____________________
48
Dennis Melancon, Inc., 703 F.3d at 268 (citation omitted).
49
Id.44