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The Fifth Circuit Court of Appeals ordered Texas on Friday to remove the floating barrier it deployed in the Rio Grande at Eagle Pass this summer, affirming a lower court’s ruling.

In a 2-1 decision, a panel of the court found that the river is navigable where the barrier was placed and that it is “an obstruction,” meaning that Texas needed to receive permission from the U.S. Army Corps of Engineers — which regulates activities in waterways and wetlands under federal law — before deploying it.

Judge Don Willett, a Trump appointee, was the dissenting vote in the ruling, arguing that the Rio Grande cannot accommodate commercial boat traffic and is therefore not navigable.

Texas argued that the barrier was also meant to save lives and force migrants to cross the border at ports of entry, but Willet said Texas hasn’t proved that’s the case.

“At this stage, however, Texas has not offered concrete evidence that the barrier has saved lives or reduced illegal crossings and drug trafficking,” Willet wrote.

Gov. Greg Abbott posted a statement on X calling Friday's ruling "clearly wrong" and said he and Attorney General Ken Paxton will seek an immediate rehearing by the entire Fifth Circuit. "We’ll go to SCOTUS if needed to protect Texas from Biden’s open borders," he said, referring to the U.S. Supreme Court.

Abbott ordered the barrier deployed in June as part of Operation Lone Star, his multi-prong effort to halt illegal immigration along the 1,200-mile border. Texas spent $850,000 on the barrier, a 1,000-foot-long string of buoys separated by saw blades that supports a submerged mesh net designed to deter migrants from crossing the Rio Grande.

The barriers sparked protests from the Mexican government and migrant advocates. In July, the U.S. Justice Department sued Texas in an Austin federal court, arguing that the barrier was installed without required federal authorization. Texas argued that the barrier was designed to direct migrants to appropriate entry points and deter unlawful crossings and drug smuggling.

San Antonio-based Federal District Judge David A. Ezra ruled in September that Texas must remove the barrier. The state appealed to the New Orleans-based Fifth Circuit, halting Ezra’s order while the Fifth Circuit considered the case.

Correction, Dec. 1, 2023 at 4:30 p.m.: A previous version of this story incorrectly stated the cost of the floating barrier, which cost the state $850,000.

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/12/01/texas-border-floating-barrier-fifth-circuit-court-ruling-remove/.

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