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Sachez que la date de parution est 2023-08-25 17:45:00.
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AUSTIN — In the final arguments over whether Texas must remove the buoys from the Rio Grande pending the outcome of the federal lawsuit, both sides presented starkly different determinations over the whether the stretch of the river is navigable.
And they disagreed on whether the 1,000-foot string of devices floating near Eagle Pass since mid-July disrupt any actual watercraft traffic.
The U.S. Justice Department and attorneys for Gov. Greg Abbott’s office and the State of Texas submitted their final arguments Friday over whether the buoys must be pulled from the international river while the court case unfolds. Senior U.S. Judge David Alan Ezra has said he will make his ruling as quickly as he can, but did not offer a timeframe.
Citing past court rulings, the Justice Department wrote that the U.S. Corps of Engineers has already classified the section of the Rio Grande at issue in the case as navigable. And, the department cited past court rulings suggesting that a state or another entity has no authority to determine otherwise.
« (I)f historically navigable waters ‘are to be abandoned’ due to changes in use or economic need … it is for Congress, not the courts, so to declare.” the department wrote. « Congress indeed has enacted ‘non-navigability’ declarations for a number of waters, but not the Rio Grande. »
The state countered that « the present record does not prove that the disputed segment is navigable » because the channel is too shallow.
« Rather, the law and the facts show that the disputed segment is non-navigable, » the state wrote, noting that Congress’ definition of navigability rests on whether a river is “of practical service as a highway of commerce.”
The briefs largely tracked the points each side sought to make in Tuesday’s hearing on the matter.
The Justice Department filed the lawsuit because Abbott and his administration did not seek approval from the Army Corps of Engineers as part of the state’s efforts to discourage unlawful immigration and to combat cross-border drug-trafficking.
More: Judge in federal lawsuit over buoys in Rio Grande says politics will not affect his rulings
The federal agency said such approval is required under the Rivers and Harbors Act of 1899, abbreviated in legal briefs as RHA.
Citing a 1975 navigability study by the Army Corps of Engineers that remains in use, the Justice Department noted that projects such as the construction of the Amistad Dam, upriver from Eagle Pass, can affect the Rio Grande’s water flows. But watercraft can still use the section of the river in question, the department said.
« Even with these diversions, the study found that shallow draft boats can navigate the river during periods of sufficient flow; this remains true today, as several boats were in the vicinity during the Barrier’s construction, » the department wrote.
But the state pointed out that the same study notes that there “has never been any ‘practical navigation’ between Roma . . . and El Paso,” a 1000-mile stretch that includes Eagle Pass. »
The state also said the Rivers and Harbors Act forbids structures such has booms, wharves, jetties and bulkheads, not floating devices.
« (N)o evidence shows the buoys ‘obstruct’ any navigable capacity of the river; and no evidence shows the buoys are “booms” or “other structures, » the state wrote.
The Justice Department disagreed.
« The evidence indicates that the Barrier is a qualifying ‘structure,’ » the department wrote, pointing out the a representative of the company that built and installed the buoys testified that the devices are not simply floating on the surface but are anchored to the riverbed.
« Each buoy unit includes a steel piece attached by metal chain to a concrete positioning anchor that weighs about 1,000 pounds, with a total of 75 such anchors attached to the Barrier, » the department said. « The Barrier is not ‘loose and adrift.’”
The state’s document also scoffed at Abbott and other state officials saying the buoys are part of the state’s effort to counter « an invasion » at the border.
More: State’s lawyers: Buoys needed to stem ‘invasion’ by migrants, transnational drug cartels
« As a matter of textual interpretation, neither immigration nor criminal activity is the kind of ‘invasion’ the Constitution contemplates, » the department wrote. « Texas does not claim to be engaged in war with another political entity. Nor does Texas attempt to show any actual conflict between its exercise of asserted self-defense power and the RHA. »
The state countered that Ezra rebuked its lawyers efforts during Tuesday’s hearing to quantify the harmed caused by unchecked immigration.
« Texas was not permitted to ask the US’s witness about “the 2.3 million . . . border encounters,” the ‘600,000 . . . got-aways’ at the border, ‘the importation of lethal fentanyl,’ ‘unlawful migration,’ or ‘cartel activity,’ » the state wrote while suggesting a ruling in the Justice Department’s favor would trigger an appeal. « Failure to weigh such evidence would be reversible error. »
John C. Moritz covers Texas government and politics for the USA Today Network in Austin. Contact him at jmoritz@gannett.com and follow him on X, formerly called Twitter, @JohnnieMo.
This article originally appeared on Corpus Christi Caller Times: Here are the final arguments on whether buoys stay or go pending trial
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