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Fifth Circuit Stays Lower Court Ruling in Texas Marine Barrier Case

Republican Texas Gov. Greg Abbott. LM Otero | AP
Republican Texas Gov. Greg Abbott. LM Otero | AP

By Bethany Blankley | The Center Square contributor

The U.S. Court of Appeals for the Fifth Circuit on Thursday stayed a lower court’s ruling that required Texas to move its marine barriers in Rio Grande River closer to the Texas riverbank.

Texas Gov. Greg Abbott appealed the lower court's ruling and less than 24 hours later the Fifth Circuit stayed the lower court’s ruling.

Texas is now not required to move the marine barriers.

In a one sentence ruling issued by a panel of three circuit judges, the unpublished order states, “Before STEWART, GRAVES, and OLDHAM, Circuit Judges, PER CURIAM: IT IS ORDERED the Appellants’ motion for administrative stay of the order of the Western District of Texas, Austin Division dated September 6, 2023, is GRANTED pending further order of the Court.”

The ruling was unanimous. It did not provide any reasoning. Nor did it provide a date for a future hearing for the court to hear arguments in the case.

Multiple news organizations reported that the lower court required Texas to remove the barriers altogether. The Center Square cited the order, which required Texas to move them closer to U.S. soil.

This lawsuit, one of two filed to block the marine barriers from being installed, was filed by the U.S. Department of Justice. The other was filed by a Texas-based kayaking company seeking to end Abbott’s border security mission, Operation Lone Star.

In addition to requiring Abbott to move the marine barriers closer to the Texas riverbank, the lower court’s order prohibits the state of Texas and “anyone working on their behalf … from building new or placing additional buoys, blockades, or structures of any kind in the Rio Grande River pending final judgement in this matter.”

The lower court ruled that the marine barrier “is an obstruction to the navigable capacity of the Rio Grande River and required authorization from Congress” and “is a structure in a navigable water of the United States, and thus required a permit from the Army Corps of Engineers.”

Abbott disagreed and said the “ruling is incorrect and will be overturned on appeal,” as it was.

Abbott also said Texas would “continue to utilize every strategy to secure the border, including deploying Texas National Guard soldiers and Department of Public Safety troopers and installing strategic barriers. Our battle to defend Texas’ sovereign authority to protect lives from the chaos caused by President Biden’s open border policies has only begun.”

He also reiterated what he’s previously said: “Texas is prepared to take this fight all the way to the U.S. Supreme Court.”

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