A Texas federal district judge issued a preliminary injunction on Wednesday that ordered Texas to move its floating barrier from the Rio Grande’s main waters to the riverbank. US Senior District Judge David Alan Ezra granted the US Department of Justice’s request for the preliminary injunction pending a final judgment in the dispute between Texas and the US federal government.

Ezra found that Texas’ construction and maintenance of the barrier without permission from the US Army Corps of Engineers likely violates the Rivers and Harbors Act. Under the act, “[t]he creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited.” However, there is an exception for “plans recommended by the Chief of Engineers and authorized by the Secretary of the Army.” Ezra found that “permission is exactly what federal law requires before installing obstructions in the nation’s navigable waters.” Thus, Ezra concluded that the US demonstrated a “substantial likelihood of success” that Texas violated the act. 

Additionally, Ezra found Texas’ self-defense argument “in the face of invasion” unconvincing. Ezra then ordered Texas to move its barrier pending a final resolution. Ezra noted that the order is only a temporary, preliminary injunction and that Texas only has to move the barrier in coordination with the Corps of Engineers.

In June, Texas Governor Greg Abbott announced Texas would float a 1,000-foot floating barrier into the Rio Grande River near Eagle Pass, Texas in an effort to limit the amount of migrants passing from Mexico into the US via the Texas border. After Abbott rebuffed the federal government’s requests to remove the barrier, the US Department of Justice (DOJ) sued Texas for failing to obtain proper authorization before constructing the barrier. The DOJ sued pursuant to its enforcement powers in the Rivers and Harbors Act.

In response to the Wednesday ruling, Texas Governor Greg Abbott stated:

Texas will appeal. Today’s court decision merely prolongs President Biden’s willful refusal to acknowledge that Texas is rightfully stepping up to do the job that he should have been doing all along. This ruling is incorrect and will be overturned on appeal. We will 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. Texas is prepared to take this fight all the way to the U.S. Supreme Court.

The appeal from the district court will be to the US Fifth Circuit Court of Appeals.

This lawsuit is not the only controversy surrounding the floating barrier. Earlier this month, Mexican authorities confirmed that they recovered two bodies from the Rio Grande. Responding to the recovered bodies, Mexican President Andres Manuel López Obrador called the buoys “inhumane.”