31 Jul 2024

Deeply Divided En Banc CA5 on the Navigability of the Rio Grande: USA v. Abbott

Majority: "[W]e hold that the district court clearly erred in finding that the United States will likely prove that the barrier is in a navigable stretch of the Rio Grande."

Dissents: "The majority’s novel test not only departs from precedent, but also creates a definition of navigability specific to rivers that inexplicably excludes trade and travel between states or foreign countries that crosses rivers. This, in turn, would defeat congressional purpose to prevent obstructions to that commerce—and render the federal government powerless to remove obstructions in rivers that serve as interstate or, like the Rio Grande, international boundaries. Because such a reduction of our definition of the “waters of the United States” is both unsupported and unworkable, I respectfully dissent. ... The district court relied on all the evidence discussed herein to find that the balance of hardships favors the United States. It considered the threat to navigation and federal government operations on the Rio Grande, as well as the potential threat to human life the floating barrier created. All the district court’s findings of fact were well supported by the record, and its conclusion that the equities favor issuance of a preliminary injunction was not an abuse of discretion. VI The majority errs in reversing the district court’s decision. In doing so, it disregards the relevant standard of review, rejects the ample evidence put forth by the United States, and relies on unsupported reasoning. Accordingly, I respectfully dissent."