US v. Abbott, 5th Cir. En Banc

Yesterday, the Fifth Circuit issued an en banc decision in the case of US v Abbott. This is the case about Texas’ placement of a “1,000 foot floating barrier in the Rio Grande near Eagle Pass.”

The case is moving towards a trial on the merits in the district court. As such, the issue presented in this en banc appeal was pretty narrow: “Did the district court abuse its discretion in granting a preliminary injunction to the United States?”

A nine-judge majority held that the district court did abuse its discretion.

Substantively, the US is arguing that Texas’ placement of the barrier violated the Rivers and Harbors Appropriation Act of 1899 (RHA). The nine-judge en banc majority determined that the the trial court erred in concluding that the “United States will likely prove that the barrier is in a navigable stretch of the Rio Grande.” To the contrary, the en banc majority finds that “The United States will likely fail to prove navigability because (1) the at-issue stretch of the river likely was not historically navigable, and (2) the United States has not shown that there are likely reasonable improvements that could render the river navigable.”

Two judges (Oldham and Richman) write separate concurrences. One (Ho) concurs in part and dissents in part. Finally, seven judges join in two separately written dissents!

The first, penned by J. Higginson, posits: “[T]he majority improperly rejects the factual evidence supporting historical navigability, finding clear error where there is none…. reading into caselaw a directionality requirement for navigability that not only does not exist, but also lacks a theoretical foothold. The result is a new legal test that is ahistorical, unworkable, and contrary to the federal obligation to guarantee that the waters of the United States remain obstruction-free.”

The second, penned by J. Douglas, focuses on the navigability of the waters.

What I found most interesting about this decision is on page 6 at the top where the majority acknowledges that “Navigability is a question of fact.” Given that it is a fact question, and one that will be addressed in the district court on the merits shortly, it seems odd to have the judges en banc opine on the conclusion of that factual determination now (albeit mediated by looking at the question through the preliminary injunction standard).

-KitJ