United States v. Abbott: Navigating the Fifth Circuit's Narrow Navigability Analysis

Note by Bridgette J. Valenti

A Bible sits on display in the Iglesia Luterana San Lucas church, its pages wrinkled. Believing the Bible belonged to someone who lost their life crossing the Rio Grande, a group of immigrants brought the Bible to the church where it now “sits in a place of honor.” The Iglesia Luterana San Lucas is located in Eagle Pass, Texas, a town on the banks of the Rio Grande. The Rio Grande forms the border between Eagle Pass and Piedras Negras, Mexico. In September 2023, Eagle Pass declared a state of emergency: Almost 6,000 people had entered the United States by crossing the Rio Grande in just two days.

In an effort to deter people from crossing the Rio Grande from Mexico and entering the United States, Texas's governor, Greg Abbott, announced the state's plan to begin building floating barriers in the river in June of 2023. Texas began building the first floating barrier, a “bright orange chain of tethered buoys,” in early July 2023. “[H]eavy concrete blocks” in the bed of the river hold the barrier in place, and an “‘anti-dive net’ made of stainless steel” extends into the water below it. On July 24, 2023, the United States sued Texas, claiming that the barrier violated the Rivers and Harbors Appropriation Act of 1899. The statute prohibits a state from obstructing “the navigable capacity” of U.S. waters without Congress's approval.

The United States sought a preliminary injunction to prevent Texas from further construction of the barrier and to direct Texas to remove it from the Rio Grande. The United States had the burden of demonstrating a likelihood that the barrier was an obstruction in a navigable waterway under the Rivers and Harbors Appropriation Act. The United States District Court for the Western District of Texas granted the preliminary injunction, prohibiting further construction and mandating that Texas relocate the barrier to its bank of the river. Texas subsequently appealed the decision to the United States Court of Appeals for the Fifth Circuit. A 2-1 panel of Fifth Circuit judges affirmed the district court's decision to grant the United States a preliminary injunction. The Fifth Circuit then ordered a rehearing en banc, vacating the panel opinion. In the en banc proceeding, the Fifth Circuit held that the United States did not sufficiently demonstrate that the barrier was in navigable U.S. waters.

The Fifth Circuit's en banc majority decision in the noted case misapplied United States Supreme Court precedent and conducted too narrow a navigability analysis. First, the Fifth Circuit held that navigability can only be established by evidence of commercial traffic along the length of a river--not by evidence of commercial traffic occurring bank-to-bank. Second, the Fifth Circuit analyzed only a small portion of the river. As the dissents properly emphasized, the Rivers and Harbors Appropriation Act and applicable case law do not bar cross-river traffic from navigability nor invite such a narrow approach. The majority's narrow navigability analysis contravenes the federal government's broad power to regulate waterways used in commerce.

Part II of this Note examines Congress's commercial power under the Commerce Clause of the U.S. Constitution, the Rivers and Harbors Appropriation Act's concept of navigability arising out of that commerce power, and the application of navigability analyses in pertinent case law. Part III examines the Fifth Circuit's analysis of the Rio Grande's navigability. Part IV discusses how the Fifth Circuit (1) misapplied Supreme Court precedent regarding bank-to-bank river traffic and (2) improperly narrowed the scope of its analysis by considering only a small portion of the river. Part V briefly concludes.


About the Author

Bridgette J. Valenti. J.D. Candidate 2026, Tulane University Law School; M.A. 2023, Tulane University; B.A. 2022, Tulane University.

Citation

99 Tul. L. Rev. 877