HomeWorld NewsJudge says there’s no room for politics in Texas border bouys lawsuit – Austin American-Statesman
Judge says there’s no room for politics in Texas border bouys lawsuit – Austin American-Statesman
August 23, 2023
Despite the red-hot political undertones in the U.S. Justice Department’s lawsuit against Gov. Greg Abbott over the buoy barrier he installed in the Rio Grande, the federal judge presiding over the case made clear Tuesday that any political considerations will get short shrift in his courtroom.
“This is a United States district court. It’s not Congress. It’s not the president,” Senior U.S. Judge David Alan Ezra told the lawyers for both sides Tuesday during the first hearing in advance of a coming trial. “I am not here to engage in any type … of political comment in this decision.”
The decision before the 35-year veteran of the federal bench is whether the string of buoys floating as a border barrier in the international river near Eagle Pass should be removed pending the outcome of the case.
Testimony from three expert witnesses rested on whether Abbott needed approval from the U.S. Army Corps of Engineers before placing the 1,000 feet of giant orange balls that are tethered to 68 concrete blocks weighing 3,000 pounds apiece.
Abbott and lawyers for the state of Texas have insisted the governor acted under his legal authority to protect the state from an “invasion” caused by unlawful immigration and drug trafficking.
But the Justice Department, both in court documents and during witness questioning Tuesday, said that, under the Rivers and Harbors Act of 1899, the Corps of Engineers must sign off on structures placed in any navigable U.S. waters.
Patrick K. Sweeten, Abbott’s general counsel, parried with Joseph Shelnutt of the Corps of Engineers over whether the section of the Rio Grande that flows between Eagle Pass and Piedras Negras, Coahuila, is actually navigable.
Sweeten showed a copy of a 1975 study describing the section as shallow and narrow and that no plans were in place to make it more hospitable to commercial boat traffic.
Shelnutt, a Corps of Engineers compliance and enforcement manager, insisted that the section still falls under the corps’ definition of a navigable waterway.
A second witness for the Justice Department, Hillary Quam, who works as the U.S. State Department’s coordinator with Mexico on border matters, said the buoys are hampering relations with the United State’ neighbor to the south.
Mexico’s displeasure threatens to stall negotiations to update the two countries’ water-sharing agreement and is complicating other matters in U.S. interests, Quam said.
When Sweeten tried to steer the testimony toward the harm that unlawful immigration and drug trafficking were inflicting on binational relations, Ezra cut him off several times.
At one point, Sweeten asked Quam about Abbott’s decision to help curtail illegal immigration, Ezra stepped in before the State Department official could answer.
“You are asking her to put herself in Gov. Abbott’s mind,” the judge said. “I don’t think she can do that.”
The state’s legal team also pushed back against the assertion by the International Boundary and Water Commission — a group established in 1899 and made up by representatives of both countries to oversee water agreements and other matters — that about 80% of the buoys had been placed on Mexico’s side of the river.
Loren Flossman, a retired Border Patrol agent and a former director of the Border Patrol & Air and Marine Program Management Office who now works for the private company that manufactured the buoys, testified that the commission used dated maps to make its determination.
Flossman also contradicted Abbott’s suggestion on Monday that the buoys had “drifted” toward Mexico after they had been installed. He said the concrete blocks directly below the buoys, plus dozens more designed keep the string from swaying, make the chain immovable.
That testimony came after Ezra expressed some concern about the devices’ location after he noticed that Abbott had said work crews with heavy equipment had gone back into the river to pull the floating barrier backed toward the U.S. shoreline.
“I am concerned if something is moving around in the river,” Ezra said.
The judge gave the lawyers until Friday afternoon to submit final arguments in writing on whether the buoys must be pulled from the river until the lawsuit is settled.
Ezra said he’d act as quickly as possible to make his ruling, which then would pave the way for the lawsuit to move forward.
To emphasize his judicial neutrality, the judge noted that although he was appointed to the bench by Republican President Ronald Reagan in 1988, a Democratic Senate confirmed him without controversy.
“There will be no leaning one way or the other in this court,” Ezra said. “Somebody is going to be happy; somebody is going to be unhappy with my decision. That’s a fact of life.”