U.S. seeks court order requiring Texas to remove floating barrier in Rio Grande

Migrants wade the Rio Grande near Eagle Pass with Texas' floating barrier in the background on July 14, 2023. (Jordan Vonderhaar For The Texas Tribune, Jordan Vonderhaar For The Texas Tribune)

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Arguing that Gov. Greg Abbott’s floating barrier in the Rio Grande is a safety hazard that violates international treaties and harms relations with Mexico, the U.S. Justice Department asked a federal judge Wednesday to order Texas to remove the barrier within 10 days.

The department is also seeking an injunction blocking Texas from erecting future river barriers without prior approval from the U.S. Army Corps of Engineers.

“Texas’s deployment of the Floating Barrier has caused significant and ongoing harm to the United States’ foreign relations with Mexico,” the filing said, adding that Mexican officials have raised their concerns “at the highest diplomatic levels.”

“Mexico has specifically asserted that Texas’s actions contravene various treaty obligations and has raised humanitarian concerns regarding possible loss of life to persons swimming in the Rio Grande,” the filing said.

The federal government asked Texas officials to remove the barrier on July 20, about 10 days after it was installed near Eagle Pass to deter migrants from crossing the river. Abbott refused, saying in a reply letter: “Texas will see you in court, Mr. President.”

The Justice Department obliged, suing Texas in Austin federal court Monday, then following up Wednesday with a request for a court order requiring the barrier’s removal.

The lawsuit argued that the barrier violated the Rivers and Harbors Act, which prohibits the obstruction of U.S. waterways, and was not approved by the bilateral International Boundary and Water Commission, as required by a 1970 treaty.

Other statements included within the filing raised specific concerns.

Hillary Quam, the U.S.-Mexico border coordinator for the U.S. State Department, said Mexican officials had protested the river barrier as a violation of treaties dating back to 1848.

“If the barrier is not removed expeditiously, its presence will have an adverse impact on U.S. foreign policy, including our relationship with the government of Mexico,” Quam wrote in an affidavit accompanying the filing.

Mexico also has raised humanitarian concerns, she said.

“Mexico is concerned that individuals swimming in the river may get caught in the floating barrier and risk injury or even death. Such an injury … could quickly rise to a significant international incident,” Quam wrote.

Another affidavit, from Jason Owens, chief of the U.S. Border Patrol, said the 39-mile stretch of river that includes the barrier is dangerous, requiring 249 water-related rescues, and resulting in 89 deaths, since 2018.

“Any obstructions in the water could naturally impair the freedom of movement and potentially delay response times,” Owens wrote.

Coast Guard officials also described potential threats to operations, citing a need to assess how the barrier could impact the navigability of the river.

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