United States Court of Appeals

for the Fifth Circuit ____________

No. 23-50632

____________

United States of America, 

Plaintiff—Appellee,

versus

Greg Abbott, in his capacity as Governor of the State of Texas; State 

of Texas, 

Defendants—Appellants.

______________________________

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 1:23-CV-853

______________________________

Before King, Willett, and Douglas, Circuit Judges.

Dana M. Douglas, Circuit Judge: 

In July 2023, Texas, at the direction of Governor Greg Abbott, 

installed a floating barrier in the Rio Grande near Eagle Pass, Texas. The 

United States filed a civil enforcement action against Texas, alleging that 

installment of the barrier violated the Rivers and Harbors Appropriation Act 

of 1899 (“RHA”). The United States moved for a preliminary injunction, 

which the district court granted, ordering the defendants to cease work on 

the barrier and to move it to the Texas riverbank. Texas timely appealed. 

This court entered an administrative stay. Finding that the district court did 

United States Court of Appeals

Fifth Circuit

FILED

December 1, 2023

Lyle W. Cayce

Clerk

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not abuse its discretion, we DISSOLVE the administrative stay and 

AFFIRM. 

I. BACKGROUND

In early June 2023, Governor Abbott announced Texas’s intent to 

deploy “marine floating barriers” to “mak[e] it more difficult to cross the 

Rio Grande and reach the Texas side of the southern border.”1 On July 10, 

2023, without authorization from the federal government, Texas began 

installing the floating barrier. 

The floating barrier was deployed near Eagle Pass, Texas, with 

additional plans by Texas to deploy similar barriers at three different 

locations in the area. The floating barrier is roughly 1,000 feet long, made up

of large four-foot orange buoys fastened together with heavy metal cables and 

anchored in place with concrete blocks placed systematically on the floor of 

the Rio Grande. The buoys are surrounded by 68 anchors weighing about 

3,000 pounds each and 75 anchors weighing about 1,000 pounds each. 

Attached to about 500 feet of the floating barrier is a stainless-steel mesh 

“anti-dive net” extending two feet into the water. The following 

photographs are illustrative: 

_____________________

1 Press Release, Office of the Texas Governor, Governor Abbott Signs Sweeping 

Package of Border Security Legislation (June 8, 2023), https://gov.texas.gov/news/post/

governor-abbott-signs-sweeping-package-of-border-security-legislation.

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On July 24, 2023, the United States brought a civil enforcement action 

under Sections 12 and 17 of the RHA, 33 U.S.C. §§ 406, 413, seeking to enjoin 

the building of structures in navigable waters that obstruct the navigable 

capacity of those waters and to require Governor Abbott to remove all 

structures and obstructions in the Rio Grande. Specifically, the United 

States alleged that Texas violated Section 10 of the RHA, 33 U.S.C. § 403, 

by erecting a structure in the Rio Grande without authorization from the

United States Army Corps of Engineers (the “Corps”) and creating an 

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obstruction to the navigable capacity of that waterway without affirmative 

Congressional authorization. 

On September 6, 2023, after holding a hearing on the motion for a 

preliminary injunction filed by the United States, the district court concluded 

that the United States showed a likelihood of success on the merits and that 

the equities favored the granting of a preliminary injunction. It ordered 

Texas to cease any work on the floating barrier and to reposition it on the 

Texas side of the riverbank by September 15, 2023. This court 

administratively stayed the district court’s order pending consideration by 

this panel. We have jurisdiction under 28 U.S.C. § 1292(a)(1) from an order 

granting a preliminary injunction. 

II. STANDARD OF REVIEW

“The decision to grant or deny a preliminary injunction is 

discretionary with the district court.” Miss. Power & Light Co. v. United Gas 

Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985). Accordingly, we review a 

district court’s grant of a preliminary injunction for an abuse of discretion, 

reviewing factual findings for clear error and legal conclusions de novo. 

Harrison v. Young, 48 F.4th 331, 339 (5th Cir. 2022). “A finding of fact is 

clearly erroneous ‘when although there is evidence to support it, the 

reviewing court on the entire evidence is left with the definite and firm 

conviction that a mistake has been committed.’” Clark v. Mobil Oil Corp., 

693 F.2d 500, 501-02 (5th Cir. 1982) (quoting United States v. U.S. Gypsum 

Co., 333 U.S. 364, 395 (1948)). 

III. DISCUSSION

A plaintiff seeking a preliminary injunction must establish that “he is 

likely to succeed on the merits, that he is likely to suffer irreparable harm in 

the absence of preliminary relief, that the balance of equities tips in his favor, 

and that an injunction is in the public interest.” Winter v. Nat. Res. Def. 

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Council, Inc., 555 U.S. 7, 20 (2008). A “preliminary injunction is an 

extraordinary remedy which should not be granted unless the party seeking 

it has ‘clearly carried the burden of persuasion.’” Harrison, 48 F.4th at 342

(quoting PCI Transp., Inc. v. Fort Worth & W.R.R., 418 F.3d 535, 545 (5th Cir. 

2005)). The district court determined that the United States had carried its 

burden of persuasion as to all four requirements. 

A. Likelihood of Success on the Merits

Section 10 of the RHA provides in pertinent part: 

The creation of any obstruction not affirmatively authorized by 

Congress, to the navigable capacity of any of the waters of the 

United States is prohibited; and it shall not be lawful to build 

or commence the building of any wharf, pier, dolphin, boom, 

weir, breakwater, bulkhead, jetty, or other structures in any 

. . . navigable river . . . of the United States. . . except on plans 

recommended by the Chief of Engineers and authorized by the 

Secretary of the Army. . ..

33 U.S.C. § 403. The first clause prohibits the construction of any 

obstruction in navigable waters without the consent of Congress. 33 U.S.C. 

§ 403, cl. 1. The second clause prohibits the construction of specified and 

other structures in those navigable waters absent permission from the Corps. 

33 U.S.C. § 403, cl. 2. 

The district court concluded that the United States showed a 

likelihood of success on the merits as to both clauses. For the United States 

to succeed on the first clause, the district court considered whether the 

segment of the Rio Grande at issue is a “navigable” waterway and whether 

the floating barrier is an “obstruction” to the navigable capacity of that 

waterway. For the United States to succeed on the second clause, the district 

court further considered whether the floating barrier is an “other structure” 

requiring a permit from the Corps before construction. We address each in 

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turn. We then address the district court’s findings on Texas’s self-defense 

argument. 

i. Navigability

To succeed under either clause of Section 10, the waterway must be 

navigable. Navigability is a factual question reviewed for clear error. United 

States v. Appalachian Elec. Power Co., 311 U.S. 377, 405 (1940). 

The Code of Federal Regulations defines navigable waters as: 

[T]hose waters that are subject to the ebb and flow of the tide 

and/or are presently used, or have been used in the past, or may 

be susceptible for use to transport interstate or foreign 

commerce. A determination of navigability, once made, 

applies laterally over the entire surface of the waterbody, and is 

not extinguished by later actions or events which impede or 

destroy navigable capacity.

33 C.F.R. § 329.4. Prior to the passage of the RHA, the Supreme Court 

defined navigable waters as those “used, or are susceptible of being used, in 

their ordinary condition, as highways for commerce, over which trade and 

travel are or may be conducted in the customary modes of trade and travel on 

water.” The Daniel Ball, 77 U.S. 557, 563 (1871). 

Following the passage of the RHA, the Supreme Court broadened its 

definition of navigability. In Economy Light & Power Co. v. United States, 256 

U.S. 113 (1921), it expanded the definition to include waters formerly used in 

interstate commerce but no longer capable of such use. Id. at 123-24. And in 

Appalachian Electric, it expanded the definition to include waters not 

presently used, but capable of future use with reasonable improvement. 311 

U.S. at 408-09. 

Thus, the elements to find navigability, as stated succinctly by the 

Sixth Circuit, require that the waterway “must (1) be or have been (2) used 

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or susceptible of use (3) in the customary modes of trade and travel on water 

(4) as a highway for interstate commerce.” Mia. Valley Conservancy Dist. v. 

Alexander, 692 F.2d 447, 450 (6th Cir. 1982). Texas focuses much of its 

argument on the current state of the at-issue segment of the Rio Grande. But 

the current condition of the Rio Grande is not dispositive, as the tests for 

navigability set forth by the Supreme Court permit a review of whether the 

Rio Grande was historically navigable—that is, whether it was historically 

used in or susceptible of use in commerce—or whether it may be navigable 

in the future with reasonable improvements. See United States v. Utah, 283 

U.S. 64, 82 (1931) (stating that “[t]he extent of existing commerce is not the 

test” for navigability); see also Econ. Light, 256 U.S. at 117 (finding the 

Desplaines River navigable despite “no evidence of actual navigation within 

the memory of living men”). 

The district court made two alternative, independent findings that the 

at-issue segment of the Rio Grande is navigable: first, that it had been used or 

was susceptible of use in commerce in the past and second, that it was 

susceptible of future use in commerce with reasonable improvements. We 

begin with historical navigability. The district court concluded that the 

United States presented sufficient evidence to carry its burden at this stage. 

We agree. 

In its complaint, the United States attached several exhibits discussing

the navigability of the at-issue segment of the Rio Grande. Included among 

those is a document issued on December 20, 2011, by the Corps titled 

“Navigable Waters of the United States in the Fort Worth, Albuquerque, 

and Tulsa Districts Within the State of Texas.” It includes the Rio Grande 

from “the Zapata-Webb county line upstream to the point of intersection of 

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the Texas-New Mexico state line and Mexico” as “navigable waters of the 

United States” falling within the Corps’ jurisdiction.2

The United States also attached an authenticated document titled

“Navigability Determination, Rio Grande River, TX,” published in 1984, in 

which the United States Coast Guard indicated that the Rio Grande River 

“was listed among the navigable waters of the United States pursuant to 

treaties with Mexico and for Coast Guard regulatory purposes.” The Coast 

Guard published these determinations yearly from 1947 to 1976, when the 

practice of publishing lists of navigable waters ceased. The document further 

stated that “the designated stretch of the Rio Grande River remains a 

navigable waterway of the United States.”3 In his declaration authenticating 

the document, Captain Brandy Parker of the U.S. Coast Guard indicated that 

“the 1984 navigability determination is still in effect.” 

The United States also relied on an extensive study performed by the 

Corps that concluded: “The Rio Grande River between River Mile 275.5 and 

610.0, on the United States side from the centerline of the normal channel, is 

a navigable water of the United States.” This determination of navigability 

by the Corps is based on a report titled “Navigability Study, Rio Grande, 

Tributaries, and Lakes, Rio Grande Basin, River Mile 275.5 to 610.0 date 

_____________________

2 U.S. Army Corps of Eng’rs, Fort Worth Dist., Navigable 

Waters of the United States in the Fort Worth, Albuquerque, and 

Tulsa Dist. Within the State of Texas 1 (2011), www.swf.usace.army.mil/

Portals/47/docs/regulatory/NavList2011.pdf.

3 Courts afford substantial weight to an agency’s determinations of navigability. 

Huron Mountain Club v. U.S. Army Corps of Eng’rs, No. 2:12-CV-197, 2012 WL 3060146, 

at *9 (W.D. Mich. July 25, 2012), aff’d, 545 F. App’x 390 (6th Cir. 2013); Wash. Water 

Power Co. v. FERC, 775 F.2d 305, 328 (D.C. Cir. 1985) (“[The Corps’] official reports thus 

carry particular weight.”); 33 C.F.R. § 329.14(a) (“Although conclusive determinations of 

navigability can be made only by federal [c]ourts, those made by federal agencies are 

nevertheless accorded substantial weight by the courts.”). 

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March 1975” (the “Navigability Study”). The Navigability Study, relied 

upon by the district court, reflects in detail on past commerce in the region.4 

The first practical navigation in the region occurred during the 

Mexican American War. “General Zachary Taylor importuned the 

quartermaster for light steamboats for patrol and military transportation 

purposes. The Corvette, Whitesville, Major Brown, and Colonel Cross arrived 

from Pittsburg in June, 1846. Other steamboats plying the Rio Grande at the 

time were the J. E. Roberts and the Brownsville.” In an extract from People 

and Plots on the Rio Grande by V. N. Lott and V. M. Fenwick (1957), the 

authors indicate the importance of steamboats in the transportation of 

supplies for Taylor’s army: “These played a most important role in the 

history of the conflict and for many years thereafter river navigation was vital 

to the life of the area between Ringgold and Brownsville, and to some extent 

as far up to Laredo.” 

Navigation was then extended further upstream: “In October, 1846, a 

successful attempt was made to ascend the Rio Grande in the United States 

steamer Major Brown, by order of General Patterson . . ..” Another account 

discusses navigating to the Big Bend reach, the farthest upstream area of 

which any account was found: 

The head of steam navigation in the 1850’s . . . was Roma. 

Goods were trans-shipped upriver to the forts by pack and 

wagon from there . . .. First of all, until steamboats were 

_____________________

4 Relying on treaties between the United States and Mexico and the Supreme 

Court’s decision in United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690 (1899),

discussed infra, the Corps concluded it was “unnecessary to determine whether sufficient 

past use occurred in the study area,” as its navigable capacity was reaffirmed in treaties and 

by the Supreme Court. Regardless, the Navigability Study included numerous excerpts 

and other historical evidence demonstrating past use and susceptibility of use in commerce 

in the area that are relevant to our decision today. 

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released from wartime troop duty, he supplied the river 

garrisons by keelboat. And then in 1850 he sent an expedition 

up the river with orders to navigate to the farthest possible 

place. He hoped to discover that shipping could utilize far 

more of the river’s length than it had so far done. A keelboat 

and a skiff, manned by sixteen men, ascended the river by 

channel to a point a thousand miles above the head of steam 

travel or about thirteen hundred miles above the mouth. It was 

an astonishing penetration for a river with so little water, and 

the expeditioneers came back, all safe, to report optimistically 

that if the channel were improved in certain passages, steam 

navigation would be entirely feasible all the way “up to 

Babbitt’s Falls.”

Also included in the Navigability Study is an extract from the 1949 

book Rio Grande, River of Destiny by Laura Gilpin that states: 

In 1861 the Rio Grande was navigable for two hundred miles, 

and Texas-grown cotton was brought to the mouth of the river 

by small boats for the transfer to ocean-going vessels in the Gulf 

of Mexico. Down the coast in small boats and across the land 

by wagon came cotton to be sold to Europe. Up the coast and 

back across the land went supplies for the Confederate Army, 

as these were imported from England, France, and Mexico.

In an extract from Southwestern Historical Quarterly (1914) edited by 

Ephraim Douglass Adams, a letter titled “British Correspondence 

Concerning Texas” sent in 1843 states:

All the rivers however, discharging themselves into the Gulf, 

vary greatly in their navigable facilities, according to the 

season, and I dare say, that in the winter and spring Months, 

the Rio Grande would be navigable for a great distance in light 

iron boats, such as are used in the upper Ganges and Indus. 

. . . Matamoros, Tampico, Alvarado, Tabasco are all accessible 

to Vessels of the draught I have indicated.

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The district court, as well as the Corps’ Navigability Study, also

considered Article VII of the Treaty of Guadalupe Hidalgo between the 

United States and Mexico, in which the countries agreed that navigation on 

the Rio Grande “divided in the middle between the two Republics. . . shall

be free and common to the vessels and citizens of both countries; and neither 

shall, without the consent of the other, construct any work that may impede 

or interrupt, in whole or in part, the exercise of this right.” 9 Stat. 928 (1848) 

(free navigability reinforced by the Gadsden Treaty, art. IV, 10 Stat. 1034 

(1853)). 

Contemporaneous court cases, cited by the district court, also support 

a finding of historical navigability. These cases discuss ferry companies 

operating between Eagle Pass and Piedras Negras, transporting goods in 

commerce, such as cotton. United States v. Weil, 35 Ct. Cl. 42, 77 (1900) 

(“At Eagle Pass there were ferryboats in which cotton was crossed over. . 

..”); Tugwell v. Eagle Pass Ferry Co., 9 S.W. 120 (Tex. 1888) (resolving 

dispute between ferry companies operating between Eagle Pass and Piedras 

Negras). Contrary to the dissent’s position, ferry usage is an appropriate 

consideration when evaluating historical navigability. See Appalachian Elec., 

311 U.S. at 413 n.46 (considering ferry usage). Moreover, the dissent points 

to a Georgia district court decision—United States v. Crow, Pope & Land 

Enters., Inc., 340 F. Supp. 25, 35 (N.D. Ga. 1972)—to support its contention 

that ferry usage does not demonstrate commerce in the region. But Crow 

considered intrastate bank-to-bank ferry traffic occurring entirely within 

Georgia on the Chattahoochee River, not commerce across an international 

boundary. See id. at 29-30. The ferry cases cited by the United States 

specifically involve the transportation of goods in commerce, such as cotton, 

between the United States and Mexico—a feature that certainly makes the 

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Rio Grande unique and undermines any contention that navigation must be 

along the river.5

 

In addition to the agency determinations, historical evidence, treaties

between the United States and Mexico, and court cases, the district court 

noted several acts of Congress, attached to the United States’ complaint, that 

emphasize the importance of navigability in the region. In one act to 

authorize the construction of a bridge over the Rio Grande between the cities 

of Eagle Pass, Texas, and Piedras Negras, Mexico, Congress states: 

[S]aid bridge shall not interfere with the free navigation of said 

river, and in case of any litigation arising from an obstruction 

or an alleged obstruction to the free navigation thereof, caused 

or alleged to be caused by said bridge, the case may be tried 

before the circuit or district court of the United States for the 

State of Texas having jurisdiction thereof.

23 Stat. 29 (1884). It further states: 

Congress reserves the right to withdraw the authority and 

power conferred by this act, in case the free navigation of said 

river shall at any time be substantially or materially obstructed 

by said bridge, or for any other reason, and to direct the 

removal or necessary modifications thereof at the cost and 

expense of the owners of said bridge. . ..

Id.

6

_____________________

5 Moreover, the Treaty of Guadalupe Hidalgo explicitly contemplates cross-river 

navigation between the United States and Mexico, as it recognizes that either country’s 

vessels or citizens could land upon the other country’s shores. See 9 Stat. 922, art. VII 

(1848). 

6 Another act granting consent of Congress to the Eagle Pass and Piedras Negras 

Bridge Company for construction of a bridge across the Rio Grande between Eagle Pass, 

Texas, and Piedras Negras, Mexico states in relevant part that the consent of Congress is 

given to the construction of a bridge between Eagle Pass and Piedras Negras “at a point 

suitable to the interests of navigation across the Rio Grande.” 42 Stat. 1482 (1923). 

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A few years later, Congress authorized the Texas-Mexican Electric 

Light and Power Company to erect wires across the Rio Grande at Eagle Pass, 

Texas: 

Provided, That said wires shall not interfere with the free 

navigation of said river, and in case of any litigation arising from 

an obstruction or alleged obstruction to the free navigation 

thereof, caused or alleged to be caused by said wires, the case 

may be tried before the district court of the United States for 

the western district of Texas: And provided also, That Congress 

reserves the right to withdraw the power and authority 

conferred by this act in case the free navigation of the river shall 

at any time be substantially or materially obstructed by said 

wires, or for any other reason, and to direct the removal of said 

wires, or necessary modifications thereof, at the cost and 

expense of the owners of said wires . . . ..

26 Stat. 495 (1890).

7

Perhaps if all the United States identified at this stage were these acts 

of Congress, we might find clear error based on Oklahoma v. Texas, in which 

the Supreme Court, evaluating similar acts, determined that these provisions 

were “only precautionary” and “not intended as an affirmation of navigable 

capacity in that locality.”8 258 U.S. 574, 586 (1922). But the district court 

relied on additional evidence, outlined supra, of the same sort relied upon by 

the Supreme Court in Appalachian Electric: 

_____________________

7 The same language was utilized in another act the same year to authorize the 

Eagle Pass Water Supply Company and the Compania Proveedora de Aguas de Cuidad 

Porforio Diaz to connect their water works communications across the Rio Grande at Eagle 

Pass, Texas. 26 Stat. 502 (1890). 

8 We note, however, that the acts of Congress through statutes and treaties, at least

shows that Congress considered this stretch of the river historically “susceptible” to use 

in commerce and sought to preserve its authority over the river, which is sufficient under 

Appalachian Power. 

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Use of a stream long abandoned by water commerce is difficult 

to prove by abundant evidence. Fourteen authenticated instances 

of use in a century and a half by explorers and trappers, coupled 

with general historical references to the river as a water route for the 

early fur traders and their supplies in pirogues and Durham or 

flat-bottomed craft similar to the keelboats of the New [River], 

sufficed upon that phase in the case of the DesPlaines.

311 U.S. at 416 (emphasis added). Likewise, here, there are numerous

historical references regarding use in commerce throughout the 1800s. 

Additionally, the Supreme Court in Appalachian Electric stressed the 

broadness in which it finds navigability: “Nor is it necessary for navigability 

that the use should be continuous. The character of the region, its products 

and the difficulties or dangers of the navigation influence the regularity and 

extent of use. Small traffic compared to the available commerce of the region is 

sufficient.” Id. at 409 (emphasis added). “Even absence of use over long 

periods of years, because of changed conditions, the coming of the railroad or 

improved highways does not affect the navigability of rivers in the 

constitutional sense.” Id. at 409-10. “Nor is lack of commercial traffic a bar 

to a conclusion of navigability where personal or private use by boats 

demonstrates the availability of the stream for the simpler types of commercial 

navigation.” Id. at 416 (emphasis added). 

Finally, the district court’s finding of historical navigability on the atissue portion of the Rio Grande is supported by the Supreme Court’s holding 

in United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690 (1899), 

relied upon by the district court and the Corps’ Navigability Study. There, 

the Supreme Court held that the Rio Grande River is “not navigable within 

the territory of New Mexico.” Id. at 695. However, in discussing the 

propriety of taking judicial notice of navigability within the territory of Texas, 

the Supreme Court expressly stated: “That the Rio Grande, speaking 

generally, is a navigable river, is clearly shown by the affidavits. It is also a 

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matter of common knowledge, and therefore the courts may properly take 

judicial notice of that fact.” Id. at 698.9

Accordingly, we find no clear error in the district court’s historical 

navigability finding. The dissent would demand a higher showing than what 

is required. To succeed under the RHA, the United States need not prove 

that the Rio Grande was, in fact, historically used for commerce. It need only 

show that it was historically susceptible of use for commerce. The evidence 

put forth by the United States overwhelmingly supports, at least, the

conclusion that the at-issue segment of the Rio Grande was historically 

susceptible of use for commerce. On these facts, we are not left with a 

“definite and firm conviction” that the district court erred. Clark, 693 F.2d 

at 501-02 (quoting U.S. Gypsum Co., 333 U.S. at 395). Moreover, we expect 

the evidence to develop as this case proceeds to the merits. We reiterate the 

posture of the case before us. We are not reviewing a permanent, but a 

preliminary, injunction. The “extraordinary” nature of a preliminary 

injunction does not heighten Winter’s “likely” standard. See Winter, 555 

U.S. at 22. For now, this showing is sufficient.

10

ii. Obstruction

Section 10’s first clause bars the “creation of any obstruction not 

affirmatively authorized by Congress, to the navigable capacity of any of the 

_____________________

9 The Supreme Court’s consideration of the Rio Grande up to New Mexico as 

“navigable” should be afforded great, if not dispositive, weight. The precise definition of 

“navigable waters” and “navigability” are dependent on judicial determination, not the 

findings of administrative agencies. 33 C.F.R. § 329.3. Although the determinations made 

by the Corps and the Coast Guard certainly bolster a consensus in the evidence of historical 

navigability. 

10 Because we find sufficient evidence to affirm the district court’s finding of past 

navigability, we do not reach its alternative holding that the Rio Grande was susceptible to 

future use in commerce with reasonable improvements. 

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waters of the United States.” 33 U.S.C. § 403. After finding navigability, 

the district court found obstruction, concluding that “the floating barrier 

interferes with or diminishes the navigable capacity of the Rio Grande and 

creates a hazard.” Whether there is an obstruction is a question of fact

reviewed for clear error. Rio Grande Dam, 174 U.S. at 709. 

Texas argues that to be an obstruction, an object must tend to destroy 

the navigable capacity of a waterway. To the contrary, the Supreme Court 

has defined an obstruction as tending to “interfere with or diminish[] the 

navigable capacity of a stream.” Id. It has also emphasized that its own cases 

define “obstruction” as used in Section 10 as “broad enough to include 

diminution of the navigable capacity” of the waterway at issue. United States

v. Republic Steel Corp., 362 U.S. 482, 489 (1960).11 Under this broad 

construction, the Supreme Court has previously found matter described as 

“fine particles” from an iron mill to be an obstruction under Section 10. Id. 

at 483. 

The Fifth Circuit has likewise acknowledged the Supreme Court’s 

broad interpretation of obstruction. Vieux Carre Prop. Owners, Residents & 

Assocs., Inc. v. Brown, 875 F.2d 453, 462-63 (5th Cir. 1989) (“The Supreme 

Court has encouraged a broad interpretation of a section 10 ‘obstruction’. . 

_____________________

11 The broadness of Section 10’s reading of obstruction is noted no less than five 

times. Republic Steel Corp., 362 U.S. at 487 (“[T]he Court. . . gave the concept of 

‘obstruction’ as used in § 10, broad sweep . . ..”); id. at 488 (“[I]n Sanitary District Co. of 

Chicago v. United States, 266 U.S. 405, 429 [(1925)]. . . the Court citing United States v. 

Rio Grande Dam & Irrigation Co., supra, with approval and saying that § 10 of the 1899 

Act was ‘a broad expression of policy in unmistakable terms, advancing upon’ § 10 of the 

1890 Act.”)); id. at 489 (“That broad construction of § 10 was reaffirmed in State of 

Wisconsin v. State of Illinois, 278 U.S. 367 [(1929)] . . ..”); id. at 491 (“We read the 1899 Act 

charitably in light of the purpose to be served. The philosophy of the statement of Mr. 

Justice Holmes . . . that ‘A river is more than an amenity, it is a treasure,’ forbids a narrow, 

cramped reading of either § 13 or of § 10.” (quoting New Jersey v. New York, 283 U.S. 336, 

342 (1931)). 

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..”). And it has construed the term flexibly, as the district court noted, 

without a size or positional limit. See United States v. Raven, 500 F.2d 728, 

731 (5th Cir. 1974) (finding a sunken schooner to be an obstruction “[i]f 

floating particles can be an obstruction”); United Tex. Transmission Co. v. 

U.S. Army Corps of Eng’rs, 7 F.3d 436, 438 (5th Cir. 1993) (finding a pair of 

gas pipelines running under the bed of a bayou an obstruction). 

Here, the district court began its analysis by noting that Texas 

designed and deployed the floating barrier to literally obstruct lateral 

movement across the river.12 It then looked to the credible testimony and 

evidence before it. 

The declaration of Mario Gomez, Acting Area Operations Manager 

for the Amistad Dam Field Office of the United States Section of the 

International Boundary and Water Commission (“IBWC”),13 indicated that 

“[n]ormally, the Mexico or U.S. Section of the Commission can go into any 

location of the Rio Grande independently and do surveying and other 

engineering work that the Commission Sections carry out” but that the 

floating barrier is “an impediment to the Sections crossing independently in 

this part of the river,” including a planned survey by the Mexican Section of 

the Commission that was unable to proceed because of the obstruction. 

Likewise, the Chief of the U.S. Border Patrol (“USBP”), Jason D. 

Owens, declared that border patrol agents rescue individualsin distress in the 

_____________________

12 See Press Release, Office of the Texas Governor, Operation Lone Star Boosts 

Border Response with New Marine Barriers (July 14, 2023), 

https://gov.texas.gov/news/post/operation-lone-star-boosts-border-response-with-newmarine-barriers (the floating barrier will “prevent people from even crossing the middle 

part of the Rio Grande River and coming into the state of Texas”). 

13 The IBWC was established to implement treaties between the United States and 

Mexico. Each country has a section, and the “two sections work in concert to implement 

treaty requirements and resolve differences that arise during implementation.” 

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Rio Grande, utilizing “small watercraft to quickly respond as the incidents 

unfold.” He noted that “[a]ny obstructions in the water could naturally 

impair the freedom of movement and potentially delay response times.” 

“From the beginning of fiscal year 2018 through July 23, 2023 there were 249 

water-related rescues and 89 water-related deaths of individuals whose 

rescue or death occurred in or around the Rio Grande throughout the Eagle 

Pass Station AOR.”14

Further, in the declaration of Joseph L. Shelnutt, the Regulatory 

Project Manager in the Compliance and Enforcement Branch for the Corps,

he indicates that the “placement and tandem configuration of the buoys, 

which allows them to move somewhat independently even though they are 

connected, present a structural barrier to cross-river navigation and would 

force a vessel to maneuver around the structure to avoid collision or 

entanglement at this location.” 

The district court also noted that the floating barrier is not simply a 

string of buoys but is made even larger by the anchors placed four to six feet 

on either side of the barrier: “Photographs show these grey concrete anchors 

standing from the bed of the river, with no markings to identify them as 

hazards. These concrete obstacles present a serious risk to watercraft of any 

_____________________

14 The declarations from employees of the IBWC and USBP show that the floating 

barrier is an obstruction to the work of federal officials in this segment. And the United 

States’ use of its waterways for more than traditional navigation is an appropriate 

consideration. Appalachian Elec., 311 U.S. at 426 (“In our view, it cannot properly be said 

that the constitutional power of the United States over its waters is limited to control for 

navigation. . .. Flood protection, watershed development, recovery of the cost of 

improvements through utilization of power are likewise parts of commerce control. . 

.. That authority is as broad as the needs of commerce.”). “The point is that navigable 

waters are subject to national planning and control in the broad regulation of commerce 

granted the Federal government.” Id. at 426-27. Accordingly, these declarations are 

evidence that the floating barrier interferes with the federal government’s activities on the 

waterway. 

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kind.” This is because the anchors are not easily seen by oncoming 

watercraft but are at a level that would cause damage to a vessel of any size 

that came upon them. 

Texas’s own declarants state that the portion of the Rio Grande at 

issue has many hazards, including “sand bars, shallow water, water with 

inconsistent depths, small islands, large rocks, man-made debris, natural 

debris such as logs and stumps, and sandy shoals” and that it is “very difficult 

and dangerous” even for airboats to operate. As the district court found, 

these conditions “make it even more imperative for anyone piloting down the 

river to have free reign [sic] of the entire width and a clear view of all 

obstacles.” 

This evidence, coupled with the Supreme Court’s command to 

interpret “obstruction” within Section 10 broadly, supports the district 

court’s finding that the floating barrier is an obstruction to the navigable 

capacity of the Rio Grande, and we find no clear error. Having made the 

requisite showing that Texas is likely in violation of the first clause of Section 

10 because its obstruction was not “affirmatively authorized by Congress,” 

33 U.S.C. § 403, the United States has shown that it is likely to succeed on 

the merits of its first claim. 

iii. Other Structure

Section 10’s second clause prohibits “build[ing] or commenc[ing] the 

building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, 

or other structures in any. . . navigable river. . . except on plans 

recommended by the Chief of Engineers and authorized by the Secretary of 

the Army.” 33 U.S.C. § 403. The Corps defines “structure” expansively 

including, “without limitation, any pier, boat dock, boat ramp, wharf, 

dolphin, weir, boom, breakwater, bulkhead, revetment, riprap, jetty, artificial 

island, artificial reef, permanent mooring structure, power transmission line, 

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permanently moored floating vessel, piling, aid to navigation, or any other 

obstacle or obstruction.” 33 C.F.R. § 322.2. 

The district court found that the floating barrier was a “boom” or 

“other structure,” requiring a permit prior to construction, and thus that the 

United States was likely to prevail on its Section 10, clause 2 claim. We agree

that it is an “other structure,” and do not consider whether it is a “boom.”

As the United States argues, all the structures listed in Section 10 are 

built in water and tend to be obstacles or obstructions to navigation. In other 

words, these structures are all tangible objects that “interfere with or 

diminish” navigation by requiring vessels to move around them. See Rio 

Grande Dam, 174 U.S. at 709 (defining “obstruct”). The barrier fits within 

this broad definition because vessels must navigate around the barrier, and 

some may even be completely thwarted by its presence. 

Texas’s argument that to constitute an “other structure,” the floating 

barrier must be permanent is unconvincing. Even if the other enumerated 

structures were permanent, Texas has not shown that the floating barrier is 

not. The barrier has a “tamper resistant” design and “heavy concrete blocks 

placed systematically on the bed of the Rio Grande River to prevent 

movement.” And the barrier “is meant to withstand at least a 100-year 

flood” and “rise and fall with the elevation of the water while maintaining 

the same position on top of the river.” As the district court noted, “Texas’s 

own declarants attest that it would take ‘several weeks,’ heavy equipment, 

and $300,000 to remove the barrier.” Moreover, Texas has no intention of 

removing the barrier after a short time, as is made clear by the current 

litigation. 

Having also made the requisite showing that Texas is likely in 

violation of the second clause of Section 10 because the floating barrier is an 

“other structure” built without seeking Corps approval, the district court 

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correctly determined that the United States has shown it is likely to succeed 

on the merits of both its RHA claims. 

iv. Invasion

Texas argues that the Constitution gives it a right to defend itself from 

“invasion,” so it should be exempt from any RHA violations. U.S. Const. 

art. I, § 10, cl. 3 (“No state shall, without the Consent of Congress, 

. . . engage in War, unless actually invaded, or in such imminent Danger as 

will not admit of delay.”). We note that a “preliminary injunction may issue 

. . . despite the existence of a plausible defense, as long as the movant 

demonstrates a substantial likelihood of success.” Dall. Cowboys 

Cheerleaders, Inc. v. Scoreboard Posters, Inc., 600 F.2d 1184, 1188 (5th Cir. 

1979). We have already affirmed the district court’s determination that the 

United States showed a substantial likelihood of success on the merits. 

However, “the district court must at least make clear that it has 

considered plausible defenses which are fully briefed and argued by [the] 

defendants.” Allied Mktg. Grp., Inc. v. CDL Mrkt., Inc., 878 F.2d 806, 815 

(5th Cir. 1989). “While a preliminary injunction may be appropriate even in 

the face of potentially significant defenses, it is frequently desirable in such 

cases to expedite the trial on the merits.” Id. (citing 11 Charles Alan 

Wright & Arthur R. Miller, Federal Practice & 

Procedure § 2950, at 484 (1973 & Supp. 1988)); see also Charles A. 

Wright, Arthur R. Miller & Edward H. Cooper, Federal 

Practice & Procedure § 3291.1 (2d ed. 2011) (“Ordinarily the scope 

of appellate review under § 1292(a)(1) is confined to the issues necessary to 

determine the propriety of the interlocutory order itself. The curtailed 

nature of most preliminary injunction proceedings means that the broad 

issues of the action are not apt to be ripe for review. . ..”). 

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Here, Texas’s self-defense argument does not preclude the issuance 

of a preliminary injunction. First, the district court adequately considered 

Texas’s arguments. Further, the district court, mindful of the sensitive 

nature of the parties’ interests in this case, sought to expeditiously seek a 

determination on the merits. Finally, the gravity of Texas’s argument—

particularly the constitutional implications of a single state’s ability to declare 

it is invaded and select its own means of waging war—suggests it would be 

best considered on a fully developed record. 

“The purpose of a preliminary injunction is to prevent irreparable 

injury so as to preserve the court’s ability to render a meaningful decision on 

the merits.” Miss. Power & Light, 760 F.2d at 627 (citing Canal Auth. of State 

of Fla. v. Callaway, 489 F.2d 567, 576 (5th Cir. 1974)). The evidence before 

the district court did not show that the floating barrier had any meaningful 

impact on deterring any perceived “invasion,” so its removal is unlikely to 

cause Texas irreparable injury.15 Accordingly, the preliminary injunction 

appropriately maintains the status quo while the district court expeditiously

considers the case on its merits. 

B. Balance of Equities

Since its issuance, Winter v. Natural Resources Defense Council, Inc., 

555 U.S. 7 (2008), has been the guidepost for determining whether a plaintiff 

has made an adequate showing to warrant entry of a preliminary injunction.

The United States has shown a likelihood of success on the merits, so we turn 

to whether it has shown a likelihood of irreparable harm absent preliminary 

relief, that the balance of equities tips in its favor, and that an injunction is in 

the public interest. Id. at 20. 

_____________________

15 As discussed below, however, its continued presence will likely result in 

irreparable harm absent preliminary injunctive relief. 

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The district court, in the alternative to its holding that it need not 

consider these additional factors where the United States enforces a publicinterest statute, expressly addressed each one.16 Its balancing was not an 

abuse of discretion. 

First, the district court considered whether the United States had 

demonstrated “that irreparable injury is likely in the absence of an 

injunction.” Winter, 555 U.S. at 22. It pointed to the “tremendous strain” 

on the U.S.-Mexico relationship. It further found that the floating barrier 

“threatens the IBWC’s ability to implement the core provisions of the 1944 

Treaty between the United States and Mexico, which is crucial to allocation 

of waters in the Rio Grande,” and that one meeting concerning water releases 

was already cancelled by the Mexican Section of the IBWC due to the 

presence of the floating barrier. The district court also found that the floating 

barrier posed a risk to human life, which is supported by Texas’s own 

statements noting the treachery of venturing across the Rio Grande.17 The 

weight of the evidence before the district court supports its conclusion. 

_____________________

16 We leave for another day the argument of whether Winter overrules the line of 

cases in this circuit (and others) that hold that when the United States seeks an injunction 

enforcing a public-interest statute, a court may grant a preliminary injunction “without 

making findings of irreparable harm, inadequacy of legal remedy, or the balance of 

convenience.” United States v. Marine Shale Processors, 81 F.3d 1329, 1358 (5th Cir. 1996); 

see also United States v. FDIC, 881 F.2d 207, 210 (5th Cir. 1989) (“However, if a statutory 

violation is involved and the statute by necessary and inescapable inference requires 

injunctive relief, the movant is not required to prove the injury and public interest 

factors.”). We need not consider this argument now, as the district court, in the 

alternative, performed the Winter balancing of equities. 

17 Though Texas vigorously disputes whether people have died because of the 

floating barrier, Governor Abbott’s own letter to President Biden acknowledges the harm 

posed in crossing the Rio Grande: “Neither of us wants to see another death in the Rio 

Grande River. Yet your open-border policies encourage migrants to risk their lives by 

crossing illegally through the water, instead of safely and legally at a port of entry. Nobody 

drowns on a bridge.” 

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The declaration of Jennifer T. Pena, Chief Legal Counsel for the 

United States Section of the IBWC, discussed the collaboration between the 

United States and Mexico. In a 1944 Treaty between the United States and 

Mexico called the “Utilization of Waters of the Colorado and Tijuana and of 

the Rio Grande,” the two countries agreed “how to allocate the waters of the 

bi-national rivers in the Treaty title, including the Rio Grande.” In a 1970 

Treaty to Resolve Pending Boundary Differences and Maintain the Rio 

Grande and Colorado River as the International Boundary, both countries 

agreed “that the international boundary will be the middle of the channel 

occupied by the normal flow of the river.” Because river channels may shift 

over time, the countries agreed to take measures to stabilize and prevent 

shifts, including by “prohibit[ing] the construction of works in its territory 

which . . . may cause deflection or obstruction of the normal flow of the river 

or of its flood flows.” 

The floating barrier “has been the subject of a series of 

correspondence from the Mexican section of the IBWC” and is “interfering 

with the ability of the IBWC to fulfill its mission.” On July 14, 2023, 

Mexico’s Section of the IBWC “objected to the placement of the buoys and 

requested intervention of the United States Section to remove the buoys.”

It further reported that, “as a result of the floating barriers in Eagle Pass, 

Mexico was cancelling a July 24, 2023, meeting concerning water releases to 

the United States from the Rio Conchos Riverin Mexico.” In a July 14, 2023,

meeting between the Texas Commission on Environmental Quality and the 

IBWC to discuss delivery by Mexico to the United States of water from the 

Rio Grande, Mexico’s Section of the IBWC indicated that Texas’s unilateral 

actions “could affect cooperation between the two countries going forward.” 

Currently, the United States and Mexico are in the midst of trying to 

reach an agreement by December 2023 on a “new mechanism to improve the 

predictability and reliability of Rio Grande water delivery from Mexico to the 

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United States” and discussions are “at a sensitive stage.” “By causing 

Mexico to rethink and limit its cooperation with the United States, Texas’s 

floating barrier interferes with IBWC’s ability to implement its core mission 

of implementation of the 1944 Water Treaty for deliveries of water on the Rio 

Grande.” “[I]f the proposed [structure] and appropriation of waters of the 

Rio Grande constitute a breach of treaty obligations or of international duty 

to Mexico, they also constitute an equal injury and wrong to the people of the 

United States.” Rio Grande Dam, 174 U.S. at 701. 

On July 24, 2023, Hillary Quam, the U.S.-Mexico Border Coordinator 

at the U.S. Department of State and acting Director of the Office of Mexican 

Affairs, declared that if the barrier “is not removed expeditiously, its 

presence will have an adverse impact on U.S. foreign policy,” and that 

Mexico “[o]n a number of different occasions beginning in late June, 2023” 

has “protested to the United States the deployment of a floating barrier 

within the Rio Grande.” Mexico has protested the installation of the floating 

barrier, “asserting that it causes obstruction and deflection of the river as well 

as possible runoff into Mexican territory” “in contravention of the 

provisions of the 1970 Treaty.” 

In a supplemental declaration on August 15, Ms. Quam indicated as 

follows:

The Government of Mexico has continued to protest to the 

United States the deployment of the barrier. On August 10, the 

Secretary of State held a meeting in Washington, D.C., with his 

counterpart from Mexico, Foreign Secretary Alicia Bárcena

. . . The topic of the floating barrier was the first one raised by 

Foreign Secretary Bárcena. The Foreign Secretary indicated 

that Mexico is very concerned about the floating barrier and 

grateful for this lawsuit.

The President of Mexico, Andrés Manuel López Obrador, in his daily press 

conference, has discussed the matter of the floating barrier at least six times 

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since July 25, 2023. Crediting this evidence to find a likelihood of irreparable 

harm was not erroneous.18

Turning to the balance of equities and the public interest, when the 

United States is a party, the third and fourth elements of the traditional 

preliminary injunction analysis merge. Cf. Nken v. Holder, 556 U.S. 418, 435 

(2009). The district court found that “the barrier’s threat to human life, its 

impairment to free and safe navigation, and its contraindication to the 

balance of priorities Congress struck in the RHA outweigh Texas’s interest 

in implementing its buoy barrier in the Rio Grande River.” 

The district court, in finding that the public interest favored the 

United States, emphasized Supreme Court decisions. In Sanitary District of 

Chicago v. United States, 266 U.S. 405 (1925), the Supreme Court stated: 

“There is no question that this power [to remove obstructions to interstate 

and foreign commerce] is superior to that of the States to provide for the 

welfare or necessities of their inhabitants.” Id. at 426. More pointedly, in 

Arizona v. United States, 567 U.S. 387 (2012), the Supreme Court noted that 

while Arizona “may have understandable frustrations with the problems 

caused by illegal immigration,” as Texas has alleged, “the State may not 

pursue policies that undermine federal law.” Id. at 416. 

_____________________

18 The dissent faults the scope of the injunctive relief—as the district court only 

required that the barrier be moved to the shoreline, rather than entirely removed—as failing 

to remedy the United States’ diplomatic harms. But this overlooks the fact that the 

President of Mexico spoke positively of the district court’s injunction during his daily press 

conference on September 7, 2023. Further, Mexico’s expressed concerns sprung from the 

treaty obligations between the countries that require the river be free of obstructions. 

Moving the barrier to the riverbank alleviates this concern and allows the district court to 

proceed to the merits without requiring Texas to dismantle the barrier entirely.

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Further, the district court emphasized that the “balance of priorities 

Congress struck in the RHA” outweighed Texas’s asserted interests. Courts 

may look at the statute at issue for guidance in determining whether the 

issuance of a preliminary injunction would be in the public interest. See, e.g.,

Amoco Production Co. v. Village of Gambell, AK, 480 U.S. 531, 544 (1987) 

(finding the public interest promoted by the Alaska National Interest Lands 

Conservation Act was “to protect Alaskan subsistence resources from 

unnecessary destruction,” rather than preventing the actions the plaintiff 

sought to enjoin). Congress has spoken to the public interest through passage 

of the RHA, and the Supreme Court has emphasized the same: “We are 

dealing here with the sovereign powers of the Union, the Nation’s right that 

its waterways be utilized for the interests of the commerce of the whole 

country.” Appalachian Elec., 311 U.S. at 405.19 

The district court relied on all the evidence discussed herein to find 

that the balance of hardships tips in favor of the United States. It considered 

the threat to navigation and federal government operations on the Rio 

Grande,20 as well as the potential threat to human life the floating barrier 

_____________________

19 See also U.S. v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 70 (1913) (“But 

every such structure in the water of a navigable river is subordinate to the right of navigation 

. . . and must be removed if Congress, in the assertion of its power over navigation, shall 

determine that their continuance is detrimental to the public interest in the navigation of 

the river.”). 

20 We also consider the danger to federal government operations, including those 

of the Border Patrol, IBWC, and Coast Guard, to be particularly concerning. At this stage, 

the showing is sufficient, and the United States can hardly be faulted for being unable to 

produce even more evidence of the dangers the floating barrier poses. As noted in Captain 

Justin Peters’s declaration, because Texas did not seek a permit by the Corps, the Coast 

Guard has not been able to consider “the impact of the structure on the safety of navigation 

as well as the traditional and possible uses of the waterway including possible impact on 

future Coast Guard mission tasking,” as well as “the location of the structure in relation to 

the navigable channel, navigational traffic patterns, difficulty of navigation in the vicinity 

of the structure, the nature of maritime activity in the vicinity of the structure, the nature 

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created. All of 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. 

IV. CONCLUSION

The district court’s factual findings were not clearly erroneous. Its 

grant of a preliminary injunction was not an abuse of discretion, as the United 

States carried its burden. Accordingly, we DISSOLVE the administrative 

stay and AFFIRM. Texas’s motion to stay the district court’s preliminary 

injunction pending appeal is DENIED AS MOOT. 

_____________________

of the structure, and the potential for the structure to move with tidal or weather 

conditions.” In Shelnutt’s declaration, he indicates that the Corps “were unable to 

determine, among other things, the exact methods of construction and whether the floating 

barrier was sufficiently anchored to ensure it remained in place,” as well as “any overall 

effects from the floating barrier on public safety, use of the Rio Grande in that area, and 

other public interest factors.” Finally, “because no information was submitted for project 

evaluation and potential permitting, it is unknown if the structure meets engineering 

standards to withstand predicted high flows. Should segments of the structure, or the 

entire structure, become unmoored from its location and travel downstream, further risks 

to navigation and safety could reasonably be assumed.” This is particularly troubling 

considering the August 15, 2023, declaration of the United States showing that nearly 80 

percent of the floating barrier had drifted out of alignment and into Mexican waters. The 

ambiguity and concerns surrounding the impact of the floating barrier, which have not been 

properly evaluated by relevant agencies because of Texas’s unilateral action, support the 

grant of a preliminary injunction. 

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Don R. Willett, Circuit Judge, dissenting:

In response to millions of illegal border crossings in recent years, 

accompanied by millions of pounds of smuggled drugs, Texas Governor Greg 

Abbott deployed a floating barrier along a 1,000-foot stretch of the Rio 

Grande near Eagle Pass, a popular crossing spot. The bright orange chain of 

tethered buoys—a floating border wall anchored to the riverbed by concrete 

blocks—is Governor Abbott’s latest effort to quell the record influx of illegal 

crossings, something he has declared an “invasion.” 

Today, the majority opinion upholds the district court’s grant of a 

preliminary injunction requiring Texas to cease work on the barrier and shift 

it to the Texas riverbank. I disagree and would vacate the injunction entered 

by the district court, as the United States has failed to carry its burden on any

of the four preliminary injunction factors. 

With deepest admiration for my colleagues, I respectfully dissent.

* * *

“A preliminary injunction is an extraordinary remedy” not to be 

granted freely.1 The district court should deny relief “unless the party 

seeking it has clearly carried the burden of persuasion”2 by showing four 

things: (1) they are likely to succeed on the merits, (2) they are likely to suffer 

irreparable harm without an injunction, (3) the balance of the equities tips in 

their favor, and (4) an injunction is in the public interest.3

_____________________

1 Dennis Melancon, Inc. v. City of New Orleans, 703 F.3d 262, 268 (5th Cir. 2012).

2 Id. (quoting Planned Parenthood Ass’n of Hidalgo Cnty. Tex., Inc. v. Suehs, 692 F.3d 

343, 348 (5th Cir. 2012)).

3 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

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As for factor one—likelihood of success on the merits—the United 

States’ claim under § 10 of the Rivers and Harbors Act (RHA) is unlikely to 

prevail.4 Both the district court and the majority opinion cite inapplicable 

statutes, treaties, cases, and other evidence to argue that this segment of the 

Rio Grande is navigable and thus subject to the RHA. But the district court’s 

erroneous navigability finding—and the majority’s affirmance—cannot be 

squared with a century-plus of precedent. 

The United States also falls short on the three other preliminary 

injunction factors. It is entirely unclear how the preliminary injunction—

which orders the barrier to be moved, but not removed (as Mexico 

demands)—remedies the United States’ diplomatic harms. And as for the 

balance of the equities and public interest, the United States offers no 

substantiated record evidence that could justify a preliminary injunction. 

I

The United States has not shown a likelihood of success on the merits 

of its claim under the first two clauses of RHA § 10. Under both clauses, the 

United States must show that this 1,000-foot stretch of the Rio Grande is 

navigable—but it cannot. More than a century of precedent points to only 

one conclusion: This 1,000-foot segment is not navigable. 

The majority opinion and the district court overlook this well-settled 

law and distort the test for navigability. Despite the majority’s and district 

court’s many attempts to argue otherwise, the United States has not shown 

that it will likely prevail in demonstrating that these 1,000 feet were

historically used or susceptible of use in interstate or foreign commerce and 

_____________________

4 See id.; see also Mock v. Garland, 75 F.4th 563, 587 n.60 (5th Cir. 2023) (“There 

is authority that the first factor—likelihood of success on the merits—is the most important 

of the preliminary injunction factors.”). 

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thus historically navigable.5 The majority does not reach the district court’s 

alternative holding—that this Rio Grande segment is navigable because 

reasonable improvements could make it susceptible of future commercial 

use. But the district court erred there, too: The United States cannot show

that it will likely prevail in establishing navigability on this ground because it 

has failed to present evidence that any improvements would be reasonable.6

A

In upholding the district court’s finding of historical navigability, the 

majority opinion repeats many of the district court’s mistakes—and makes 

some new ones of its own. 

1

Start with the mistakes that the majority opinion and the district court 

share. Both recite statutes, treaties, a 1975 study by the United States Army 

Corps of Engineers (the Corps), and cases that they say show historical 

_____________________

5 This is the proper test for historical navigability. See, e.g., Econ. Light & Power Co. 

v. United States, 256 U.S. 113, 123–24 (1921) (holding that waters are navigable even if they 

are “not at present used for such commerce” or are currently “incapable of such use” so 

long as they previously had “actual navigable capacity in [their] natural state and [were] 

capable of carrying commerce among the states”); United States v. Appalachian Elec. Power 

Co., 311 U.S. 377, 407 (1940) (“A waterway, otherwise suitable for navigation, is not barred 

from that classification merely because artificial aids must make the highway suitable for 

use before commercial navigation may be undertaken.”).

6 The district court did not decide whether this 1,000-foot stretch is presently used 

or susceptible of use for interstate or foreign commerce. The United States does not argue 

that it is. Regardless, the record is replete with evidence that it is not. Accordingly, this Rio 

Grande segment cannot be deemed navigable based on present commercial use or 

susceptibility. See The Montello, 87 U.S. 430, 439 (1874) (stating that waters are navigable 

“when they are used, or are susceptible of being used, . . . as highways for commerce”). 

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navigability. But this evidence does not show that this 1,000-foot segment of 

the Rio Grande was historically used or susceptible of use in commerce.

First, the statutes. The district court should not have relied on these 

statutes to find navigability. In Oklahoma v. Texas, the Supreme Court said in 

no uncertain terms that a similar act that “provided in substance that there 

should be no interference with navigation . . . was only precautionary and not

intended as an affirmation of navigable capacity in that locality.”7 The 

statutes cited by the district court and the majority, like the statute in 

Oklahoma, do not make the necessary factual findings8 that the Rio Grande 

was used or susceptible of use in commerce; they only prohibit obstructions 

to navigation.9 In Oklahoma, the Supreme Court explained that this 

prohibitory language was merely Congress playing it safe by barring 

obstructions in case that segment of the river turned out to be navigable.10 We 

should not read these statutes as saying more than they do.

Second, the treaties. Like the district court, the majority points to the 

Treaty of Guadalupe Hidalgo and the Gadsden Treaty, which require the 

United States and Mexico to maintain “free and common” “navigation of” 

the Rio Grande below New Mexico. But point is all the majority and district 

_____________________

7 258 U.S. 574, 585–86 (1922).

8 See Appalachian Elec., 311 U.S. at 405 (“The navigability of the [river segment] is, 

of course, a factual question . . . .”).

9 See, e.g., Act of Mar. 4, 1923, 67 Cong. Ch. 254, 42 Stat. 1482 (granting consent 

of Congress to Eagle Pass and Piedras Negras Bridge Company for construction of a bridge 

across the Rio Grande); Act of Sept. 27, 1890, 51 Cong. Ch. 1002, 26 Stat. 495 (authorizing 

the Texas-Mexican Electric Light and Power Company to erect wires across the Rio 

Grande at Eagle Pass); Act of May 29, 1884, 48 Cong. Ch. 57, 23 Stat. 29 (authorizing the 

construction of a bridge over the Rio Grande between Eagle Pass and Piedras Negras).

10 See Oklahoma, 258 U.S. at 586 (“Congress merely took the perfectly safe course 

of qualifying its permission as indicated.”). 

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court do. They give no reason—because there is none—why these treaties 

establish navigability and are not merely precatory. 

Even a cursory review of the case law shows that these treaties do not 

establish navigability. In United States v. Rio Grande Dam & Irrigation 

Company, the Supreme Court said that these treaties obligated the United 

States “to preserve . . . the navigability of its navigable waters.”11 That is, 

whether the river is navigable is a preliminary question that is not answered 

by the treaties themselves. Oklahoma suggests the same. Like the statute in 

Oklahoma, these treaties do not make specific factual findings of navigability 

and provide only that there should be no interference with “free and 

common” navigation.12 On Oklahoma’s reasoning, then, the treaties are not 

“affirmation[s] of navigable capacity” but rather “precautionary” 

statements that navigability should not be obstructed where it exists.

13 Because 

the treaties cannot establish navigability, the majority opinion also 

improperly relies on the United States Coast Guard’s 1984 navigability 

determination—which itself relies on these treaties. 

Third, the Corps’s 1975 study. The majority opinion and the district 

court cite the Corps’s 1975 study and subsequent determination that the Rio 

Grande is navigable—but the Corps never found navigability based on 

historical or then-current use.14 The Corps observed that there was “no 

[then-current] commercial activity occurring within” that stretch of the river 

_____________________

11 174 U.S. 690, 700–01 (1899) (emphasis added).

12 See Oklahoma, 258 U.S. at 585–86. 

13 See id. at 586.

14 The majority also cites a 2011 document in which the Corps lists the Rio Grande 

as a navigable water. As the United States acknowledges, this 2011 navigability 

determination was based on the Corps’s 1975 study. Because reliance on the 1975 study is 

improper, so too is reliance on the 2011 list improper.

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and that there were only “sketchy accounts on [past] use.” The Corps 

instead found navigability based on the treaties and the Supreme Court’s 

decision in Rio Grande Dam, which, as I explain, was improper. The majority 

opinion admits that the Corps’s navigability finding was not based on past 

use—but it inconspicuously relegates that concession to a footnote and 

avoids mentioning that the Corps criticized the historical evidence on which 

it now relies.

Like the district court, the majority opinion looks under the hood at 

the Corps’s historical findings. But the majority’s and district court’s 

analyses of this historical evidence are flawed. Both overlook a key feature of 

the test for navigability: Use of the river must have been more than 

“sporadic,” “ineffective,”15 and “exceptional.”16

Any evidence of past use in the Corps’s study is too sporadic and 

exceptional to establish historical navigability. The majority opinion and the 

district court both cite an anecdote that, in 1850, “[a] keelboat and a skiff,

manned by sixteen men, ascended the river by channel to a point a thousand 

miles above the head of steam travel,” which was Roma, Texas. But the 

district court omitted—and the majority opinion overlooks—that this 

historical account also described the expedition as “an astonishing 

penetration for a river with so little water.” And they ignore the Corps’s 

comment that “[t]here is no showing that substantial items of commerce 

were shipped from [Roma]” at the time of the expedition. In context, this 

expedition is at most an “exceptional” use of the river, which does not suffice 

to show navigability.17

_____________________

15 United States v. Oregon, 295 U.S. 1, 23 (1935).

16 Rio Grande Dam, 174 U.S. at 699.

17 See id.

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In addition, the Corps stated that “there apparently has never been 

any ‘practical navigation’ between Roma . . . and El Paso” and that “at 

normal stages the river apparently was not navigable above Rio Grande 

City.” Even “during periods of sufficient flow,” only “fishing boats and 

other shallow draft craft” could navigate the river. As the Supreme Court 

explained, navigability does not extend to “every small creek in which a 

fishing skiff or gunning canoe can be made to float at high water.”18 Rather, 

to be historically navigable, the river must have been suitable “as [a] 

highway[] for commerce, over which trade and travel [was] or [could have 

been] conducted in the customary modes of trade and travel on water.”19

There is no evidence of that here. As the Corps said, any accounts of the 

river’s use were “sketchy,” and “actual accounts of commercial travel 

[were] lacking.” And given the “serious ecological objections to any 

channelization” and “doubtful” economic justifications, there were no 

reasonable improvements that could have permitted commercial use of that 

stretch of the river.

20 Because the Corps’s study does not show that the river 

segment was used or susceptible of use in commerce, it does not support the 

district court’s finding of historical navigability.

Fourth, the cases. The majority opinion and the district court cite

cases that mention past ferry traffic across the Rio Grande at Eagle Pass. But 

bank-to-bank traffic alone has never established navigability. Because the test 

for historical navigability turns on whether the water was used or susceptible 

_____________________

18 Id. at 698–99 (citation omitted). 

19 The Montello, 87 U.S. at 439.

20 See Appalachian Elec., 311 U.S. at 408–09 (stating that “[a] waterway, otherwise 

suitable for navigation, is not barred from that classification merely because artificial aids 

must make the highway suitable for use before commercial navigation may be undertaken” 

and that “[t]here must be a balance between cost and need at a time when the improvement 

would be useful”).

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of use as a “highway for commerce,” there must also be evidence of 

commerce or navigation along the river.21 Consistent with this view, the 

Supreme Court in United States v. Appalachian Electric Power Company did 

not rely solely on evidence of ten “small public ferries going from one bank 

to the other” to find navigability.22 Rather, the Court cited ample evidence 

of boating and commerce along the river, including “[f]ourteen 

authenticated instances of use . . . by explorers and trappers,” “general 

historical references to the river as a water route for the early fur traders,” 

and “evidence of actual use of [one segment] for commerce.”23 Our circuit 

has taken the same approach. In Puente de Reynosa, S.A. v. City of McAllen, 

we noted that there was ferrying across the river—but we also observed “that 

high-pressure steamboats [previously] made frequent trips up [that segment

of] the Rio Grande” and that “small boats continue to be navigated on the 

river” before finding that segment navigable.24

_____________________

21 See Econ. Light & Power Co., 256 U.S. at 121 (quoting The Montello, 87 U.S. at

439); see also Appalachian Elec., 311 U.S. at 413–15 (describing evidence of boating “along” 

the river); Rio Grande Dam, 174 U.S. at 699 (noting that “the Fox river, which was 

considered [by the Supreme Court] in [The Montello],” had “a general capacity for 

navigation along its entire length” (emphasis added)). As one court persuasively observed, 

“[T]he existence of ferries is no more an example of commercial use than the presence of 

a bridge or railroad trestle whose primary purpose is to avoid the river rather than to employ 

it as a means for trade and transportation.” United States v. Crow, Pope & Land Enters., Inc., 

340 F. Supp. 25, 35 (N.D. Ga. 1972). The majority opinion argues that Crow is inapposite 

because here, unlike in Crow, the ferries cross an international boundary. But Crow did not 

distinguish between intrastate and cross-border ferry traffic when making this observation. 

See id. Its general comment about ferry traffic is thus still persuasive. 

22 See Appalachian Elec., 311 U.S. at 413 & n.46.

23 Id. at 416; see also id. at 413–15. 

24 357 F.2d 43, 50–51 (5th Cir. 1966) (determining the Rio Grande’s navigability 

near the Hidalgo-Reynosa Bridge).

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Accordingly, without sufficient evidence of past use or susceptibility 

to use in commerce along this 1,000-foot Rio Grande segment, there can be 

no finding of historical navigability. As explained, the “sketchy” historical 

accounts of activity along the river are nowhere near as extensive as those in 

Appalachian Electric and do not establish navigability.

The majority opinion thus repeats the district court’s mistakes. Both 

engage only partially with the case law and record, overlooking signs that this 

stretch of the river was not used or susceptible of use in commerce—and thus 

not historically navigable. 

2

In an attempt to bolster the district court’s erroneous conclusions, the 

majority opinion points to additional historical anecdotes and the Supreme 

Court’s opinion in Rio Grande Dam. But in doing so, it makes two new, 

unforced errors: It would have us ignore Texas geography and give 

dispositive weight to an out-of-context quote from the Supreme Court.

First, the majority opinion quotes historical anecdotes that refer to 

other parts of the Rio Grande—not this specific 1,000-foot segment near 

Eagle Pass. Whether the Rio Grande was historically navigable along these 

other segments has zero bearing here because we analyze navigability of this

segment only.25

Consider the majority opinion’s quote from the 1949 book Rio Grande, 

River of Destiny by Laura Gilpin. Nothing in that quote suggests that this 

_____________________

25 See Rio Grande Dam, 174 U.S. at 698–99 (determining whether the segment of 

the Rio Grande within New Mexico is navigable); 33 C.F.R. § 329.11(b) (“The character 

of a river will, at some point along its length, change from navigable to non-navigable.”); 

cf. PPL Montana, LLC v. Montana, 565 U.S. 576, 593 (2012) (“To determine title to a 

riverbed under the equal-footing doctrine, this Court considers the river on a segment-bysegment basis to assess whether [it] . . . is navigable or not.”).

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1,000-foot stretch is within the 200 navigable miles that Gilpin describes. 

The quote mentions the 200-mile segment and then says that goods were 

brought to the Rio Grande’s mouth at the Gulf of Mexico, more than two 

hundred miles from inland Eagle Pass. This suggests that Gilpin’s 200-mile 

navigable segment started at the Rio Grande’s mouth and thus stopped short 

of where the barrier is today. The majority’s quote from People and Plots on 

the Rio Grande suffers from a similar geographic flaw. That quote describes 

navigation “between [Fort] Ringgold and Brownsville, and to some extent as 

far up as Laredo.”26 But our 1,000-foot segment is much further inland than 

Fort Ringgold, Brownsville, and Laredo. These quotes are thus irrelevant.

Second, the majority opinion omits the context surrounding the 

Supreme Court’s comment in Rio Grande Dam that courts may take judicial 

notice “[t]hat the Rio Grande, speaking generally, is a navigable river.”27

After stripping the qualifying language, the majority says we should give this 

quote “great, if not dispositive, weight.”

The surrounding language in Rio Grande Dam shows that this quote is 

not persuasive, let alone dispositive. The Supreme Court suggested only that 

courts could take judicial notice “[t]hat the Rio Grande, speaking generally, is 

a navigable river” because it is common knowledge.28 The Court was careful 

to underscore a critical point: “[H]ow far up the stream navigability 

extends . . . should be determined by evidence” if it is not “a matter of 

general knowledge, or one that ought to be generally known.”29 The Court 

_____________________

26 Logically, this quote must refer to “Fort Ringgold.” The modern Ringgold is 

near Texas’s border with Oklahoma. 

27 See Rio Grande Dam, 174 U.S. at 698.

28 Id. (emphasis added).

29 Id. 

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added, “[I]t is not so clear that it can fairly be said . . . [that it is] a matter of 

common knowledge at what particular place between its mouth and its source 

navigability ceases.”30

In Rio Grande Dam, the Supreme Court tellingly did not take judicial 

notice that the Rio Grande was navigable within New Mexico—instead, it 

examined “affidavits and other evidence.”31 And, the real kicker, it 

concluded that the segment was not navigable.

32 Judicial notice of the Rio 

Grande’s general capacity for navigation clearly does not displace or even 

supplement our standard fact-driven, segment-by-segment navigability test. 

As today’s dispute shows, the navigability of this 1,000-foot Rio Grande 

segment is far from common knowledge. The Supreme Court’s comment 

about judicial notice thus has no role here.

In sum, there is not sufficient evidence to find that the United States 

is likely to prevail in showing that this specific 1,000-foot stretch of the Rio 

Grande was historically used or susceptible of use in commerce. The district 

court clearly erred in finding navigability on this ground.

B

Because the majority opinion affirms the district court’s finding that 

this 1,000-foot segment was historically navigable, it does not reach the 

district court’s alternative holding: that this part of the river is navigable 

_____________________

30 Id.

31 Id.

32 Id. at 698–99. 

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because it could be used for commerce with reasonable improvements.33 I 

would reject this alternative holding, too.

Navigable waters include those that are not presently used as 

highways for commerce but could be after reasonable improvements.34 Key

is the word “reasonable.”35 That is, “[t]here must be a balance between cost 

and need at a time when the improvement would be useful.”36

The district court said only that future improvements are 

“possible”—it did not attempt to assess costs and benefits. But how could 

it? The United States has presented no evidence of costs or commercial 

benefits.37 The record thus does not support the district court’s holding that 

the Rio Grande segment is navigable because reasonable improvements could 

make it suitable for commerce.

* * *

Because the United States cannot show that this segment is navigable, 

based on historical evidence or on future reasonable improvements, its RHA

claim cannot succeed.38 The United States thus fails to show a likelihood of 

_____________________

33 See Appalachian Elec., 311 U.S. at 408–09.

34 Id.

35 Id. at 408. 

36 Id. at 407–08; see also Lykes Bros. Inc. v. U.S. Army Corps of Eng’rs, 821 F. Supp. 

1457, 1464 (M.D. Fla. 1993), aff’d, 64 F.3d 630 (11th Cir. 1995) (suggesting that “the costs 

of improvement [must] be justified by the benefits to commercial transit in th[e] area”); 

Sierra Pac. Power Co. v. FERC, 681 F.2d 1134, 1139 & n.5 (9th Cir. 1982) (weighing costs 

and benefits).

37 See Appalachian Elec., 311 U.S. at 407–08; Lykes Bros. Inc., 821 F. Supp. at 1464

(“The Corps failed to present any evidence of the cost of such improvements or evidence 

of any commerce which would rely on the creek should such improvements be made.”). 

38 As mentioned before, this Rio Grande segment also cannot be deemed navigable 

based on present commercial use or susceptibility. See supra note 6.

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success on the merits—“the most important of the preliminary injunction 

factors.”39

II

The United States fares no better on the last three preliminary 

injunctions factors: It has not shown that it “is likely to suffer irreparable 

harm in the absence of preliminary relief, that the balance of equities tips in 

[its] favor, and that an injunction is in the public interest.”40

The district court erred in concluding that the United States was likely 

to suffer irreparable harm without the preliminary injunction. Critically, it is 

entirely unclear how the injunction alleviates the United States’ diplomatic 

harms. The record indicates that the alleged harms arise from the 

“construction and presence” of the barrier and that Mexico has demanded 

the barrier’s “prompt removal.” The preliminary injunction, however, 

requires Texas to shift the barrier to the Texas bank, not remove it from the 

river. If the district court credited the United States’ allegations of harm, 

then it should have ordered the barrier to be not just moved but removed. Only 

complete removal would eliminate the “construction and presence” of the 

barrier and meet Mexico’s demands. The district court’s justification is 

unsatisfying: It suggested only that ordering removal would not be a 

“measured” response suitable for the preliminary injunction stage, wholly 

ignoring the mismatch between the United States’ alleged harms and the 

remedy it prescribed. That the district court entered a preliminary injunction 

_____________________

39 See Mock, 75 F.4th at 587 n.60.

40 See Winter, 555 U.S. at 20.

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that is nonresponsive to the United States’ alleged diplomatic harms suggests 

that those harms are merely speculative.41

The United States also fails to show that the balance of the equities 

and the public interest favor granting the injunction. The district court 

erroneously identified three reasons that it said favor the United States: the 

barrier threatens human life and safety, impairs navigation, and violates the 

RHA. 

First, Texas and the district court disagree about the barrier’s safety 

and usefulness for deterring drug trafficking. Texas argues that the barrier 

“was designed . . . to save lives and direct migrants to appropriate . . . points 

of entry while deterring unlawful, dangerous crossings; drug smuggling; 

human trafficking; and terrorist infiltration” at “one of the most active drugtrafficking and human-trafficking hotspots on the river.” At this stage, 

however, Texas has not offered concrete evidence that the barrier has saved 

lives or reduced illegal crossings and drug trafficking. 

On the other side, the United States—which bears the burden on the 

preliminary injunction factors42—has offered no credible evidence of harm. 

Curiously, the district court tried to spin the river’s naturally treacherous 

conditions as evidence that the barrier is dangerous. The majority opinion 

also makes that logical leap, but I cannot. To support the district court’s 

assessment, the majority opinion cites a quote by Governor Abbott that 

migrants “risk their lives by crossing illegally through the [Rio Grande].”

The majority opinion holds this out as evidence that “the floating barrier 

_____________________

41 See Janvey v. Alguire, 647 F.3d 585, 601 (5th Cir. 2011) (“The party seeking a 

preliminary injunction must also show that the threatened harm is more than mere 

speculation.”). 

42 See Byrum v. Landreth, 566 F.3d 442, 446 (5th Cir. 2009).

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pose[s] a risk to human life.” But Governor Abbott was talking about the 

danger posed by the river, not the barrier. The majority opinion cannot 

misread Governor Abbott’s comment to save the United States on these 

preliminary injunction factors.

The district court also erred in taking judicial notice of news articles 

that reported that two dead bodies were found near the barrier.43 Although 

“courts reviewing preliminary injunctions can take judicial notice of 

subsequent factual developments,”44 those facts must still be proper material 

for judicial notice under Federal Rule of Evidence 201.45 Under that rule, a 

district court “may judicially notice a fact that is not subject to reasonable 

dispute because it: (1) is generally known within the trial court’s territorial 

jurisdiction; or (2) can be accurately and readily determined from sources 

whose accuracy cannot reasonably be questioned.”46 The news articles 

satisfy neither prong: It was not established that the facts were “generally 

known within the” district court’s jurisdiction, and Texas reasonably 

questioned the articles’ accuracy.47 The district court should not have found 

on the evidence before it that the barrier is a “threat to human life.”

Second, the district court should not have found that the barrier is an 

“impairment to free and safe navigation” and a “contraindication to the 

_____________________

43 See Petrobras Am., Inc. v. Samsung Heavy Indus. Co., Ltd., 9 F.4th 247, 255 (5th 

Cir. 2021) (per curiam) (“We review a district court’s decision whether to take judicial 

notice for abuse of discretion.”).

44 Valentine v. Collier, 960 F.3d 707, 708 n.1 (5th Cir. 2020) (Davis, J., concurring) 

(collecting cases).

45 Kinnett Dairies, Inc. v. Farrow, 580 F.2d 1260, 1277 n.33 (5th Cir. 1978) (noting 

that Federal Rule of Evidence 201 applied in a preliminary injunction hearing).

46 Fed. R. Evid. 201(b)(1)–(2).

47 See Petrobras Am., Inc., 9 F.4th at 255 (“The newspaper articles in this case were 

not proper material for judicial notice.”).

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balance of priorities Congress struck in the RHA.” Because this Rio Grande 

segment is not navigable and the United States is likely to fail on its RHA

claim, neither of these factors carries weight.

In sum, the district court’s analysis of these equitable factors was 

unpersuasive, unsubstantiated, and incorrect—and the majority opinion 

repeats the error. The United States has not carried its burden.

III

A preliminary injunction is an exceptional remedy that requires the 

moving party to clearly satisfy all four requirements. In this case, the United 

States cannot satisfy one, much less all four.

The law and the record are clear: The United States cannot succeed 

on its RHA claim because it has not shown that this 1,000-foot segment of 

the Rio Grande is navigable. In reaching the opposite conclusion, the majority 

opinion and the district court resort to evidence that is foreclosed to us by a 

century-plus of case law. Nor can the United States satisfy the three other 

preliminary injunction factors.

As the United States has not “clearly carried the burden of 

persuasion”48 on even one requirement to obtain the “extraordinary 

remedy”49 of a preliminary injunction, I respectfully dissent.

_____________________

48 Dennis Melancon, Inc., 703 F.3d at 268 (citation omitted).

49 Id.

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