United States v. Abbott

110 F.4th 700

UNITED STATES of America, Plaintiff-Appellee, v. Greg ABBOTT, in his capacity as Governor of the State of Texas; State of Texas, Defendants-Appellants.

No. 23-50632

United States Court of Appeals, Fifth Circuit

FILED July 30, 2024

Appeal from the United States District Court for the Western District of Texas, USDC No. 1:23-CV-853, David A. Ezra, U.S. District Judge

David A. Ezra, Andrew Marshall Bernie, Andrew D. Knudsen, Michelle Melton, U.S. District Judge, U.S. Department of Justice, Environment & Natural Resources Division, Brian H. Lynk, Esq., Trial Attorney, U.S. Department of Justice, Environmental Defense Section, Washington, DC, Landon Wade, U.S. Attorney's Office, Western District of Texas, Austin, TX, for Plaintiff-Appellee.

Aaron Lloyd Nielson, William Francis Cole, Esq., Lanora Christine Pettit, Office of the Texas Attorney General, Solicitor General Division, Munera Al-Fuhaid, Office of the Attorney General of Texas, Monroe David Bryant, Jr., Johnathan Stone, Ryan Daniel Walters, Attorney, Office of the Attorney General of Texas, Special Litigation Division, Coy Allen Westbrook, Office of the Texas Attorney General, Office of the Solicitor General, Austin, TX, for Defendant-Appellant Greg Abbott.

Aaron Lloyd Nielson, Lanora Christine Pettit, Office of the Texas Attorney General, Solicitor General Division, Munera Al-Fuhaid, Office of the Attorney General of Texas, Monroe David Bryant, Jr., Johnathan Stone, Ryan Daniel Walters, Attorney, Office of the Attorney General of Texas, Special Litigation Division, Austin, TX, for Defendant-Appellant State of Texas.

Matt A. Crapo, Immigration Reform Law Institute, Washington, DC, for Amicus Curiae Immigration Reform Law Institute.

Anthony J. Powell, Office of the Attorney General for the State of Kansas, Topeka, KS, for Amici Curiae State of Alabama, State of Kansas, State of Alaska, State of Arkansas, State of Kentucky, State of Florida, State of Mississippi, State of Georgia, State of Nebraska, State of Idaho, State of South Carolina, State of Indiana, State of South Dakota, State of Iowa, State of Tennessee, State of Louisiana, State of West Virginia, State of Missouri, State of Wyoming, State of Montana, State of North Dakota, State of Oklahoma, State of Utah, State of Virginia.

Ilya Somin, George Mason University, Antonin Scalia Law School, Arlington, VA, for Amicus Curiae Cato Institute.

William Jeffrey Olson, Esq., William J. Olson, P.C., Vienna, VA, for Amici Curiae America's Future, U.S. Constitutional Rights Legal Defense Fund, Tennessee Firearms Association, Tennessee Firearms Foundation, Citizens United, Citizens United Foundation, Gun Owners of America, Gun Owners Foundation, Gun Owners

of California, Conservative Legal Defense and Education Fund, Presidential Coalition.

David Michael Hurst, Jr., Esq., Phelps Dunbar, L.L.P., Jackson, MS, for Amicus Curiae Center for Renewing America, Incorporated.

Before Richman, Chief Judge, and King, Jones, Smith, Stewart, Elrod, Southwick, Haynes, Graves, Higginson, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson, Douglas, and Ramirez, Circuit Judges.

Don R. Willett, Circuit Judge, joined by Jones, Smith, Elrod, Haynes, Duncan, Engelhardt, Oldham, and Wilson, Circuit Judges:

In July 2023, the State of Texas installed a 1,000-foot floating barrier in the Rio Grande near Eagle Pass, one of the nation's busiest hotspots for illegal border crossings. The United States promptly sued, alleging that Texas violated the Rivers and Harbors Appropriation Act of 1899 (RHA). The district court granted a preliminary injunction directing Texas to reposition the barrier to the Texas riverbank. Texas appealed, and a 2-1 panel of our court affirmed. Our full court then granted rehearing en banc, vacated the panel opinion, and stayed the preliminary injunction pending appeal.

With its preliminary-injunction dispute on appeal, the parties have continued to march toward trial in the district court.¹ The district court will soon confront the merits of the United States' RHA claim on a further-developed factual record. Our focus in this interlocutory appeal, then, is narrow: Did the district court abuse its discretion in granting a preliminary injunction to the United States?² On this record, we conclude it did.

The test for whether to grant or deny a preliminary injunction is long-standing and familiar. The district court should deny relief "unless the party seeking it has clearly carried the burden of persuasion" by showing that:³ (1) it is likely to succeed on the merits, (2) it is likely to suffer irreparable harm without an injunction, (3) the balance of equities tips in its favor, and (4) an injunction is in the public interest.⁴ The first factor—likelihood of success on the merits—is "the most important."⁵ For good reason. A district court that grants a preliminary injunction restricts a party's conduct before its rights are fully litigated—at the risk that the party's conduct was actually lawful.⁶

It is on this first factor that numerous briefs, two oral arguments, and nearly a year's worth of discussion and deliberation have largely focused. We ask: Can the United States likely prove during trial that Texas violated the RHA? That question turns on another: Can the United States likely prove that the barrier is located within a navigable stretch of the Rio Grande? Because the RHA extends only to navigable waters,⁷ our answer to this question may—and in our view does—dispose of the first.

Cognizant of our role as a court of review⁸ and of the reality that a preliminary injunction is an exceptional remedy,⁹ we hold that the district court clearly erred in finding that the United States will likely prove that the barrier is in a navigable stretch of the Rio Grande. We cannot square the district court's findings and conclusions with over a century's worth of precedent, which on a fair and faithful reading renders inapplicable or unpersuasive the evidence on which the district court relies. The United States alone has the "heavy burden" of showing a likelihood of success on the merits,¹⁰ and the district court (and the dissenting opinions) cannot cure the United States' evidentiary deficiencies by creatively reinterpreting binding caselaw. Because we conclude that the United States fares no better on the three other preliminary-injunction factors, we hold that the district court abused its discretion by granting the United States a preliminary injunction.

Accordingly, we now DISSOLVE the stay pending appeal, REVERSE the district court's order granting a preliminary injunction, and REMAND with instructions to vacate the preliminary injunction and for further proceedings consistent with this opinion.

I

About a year ago, Governor Abbott installed a floating barrier along a 1,000-foot stretch of the Rio Grande near Eagle Pass to deter illegal border crossings. The bright orange chain of tethered buoys— running parallel to the riverbank and anchored to the riverbed by concrete blocks—is one of many attempts by Governor Abbott to quell the influx of illegal immigration and drug trafficking into the state.

The United States was quick to react. Less than two weeks after Texas installed the barrier, the United States sued the state under the RHA. The United States alleged that Texas violated § 10 of the RHA by (1) obstructing the navigable capacity of the Rio Grande without affirmative congressional authorization and (2) building the barrier without approval from the U.S. Army Corps of Engineers (Corps).¹¹ It sought a preliminary injunction to compel Texas to remove the barrier. The district court granted the preliminary injunction, ordering Texas to cease any work on the barrier and to reposition it to the Texas riverbank, but not remove it as the United States requested.¹²

Texas promptly appealed and moved to stay the preliminary injunction. Our court granted an administrative stay, and a panel affirmed the district court's preliminary injunction.¹³ The full court then ordered rehearing en banc, vacated the panel opinion,¹⁴ and granted Texas's motion to stay the preliminary injunction pending our en banc review.

II

"We review the district court's grant of [a] preliminary injunction for abuse of discretion, reviewing underlying factual findings for clear error and legal conclusions de novo."¹⁵ "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.'"¹⁶

A

We begin with the first preliminary-injunction factor: whether the United States has shown that it is likely to succeed on the merits of its RHA claim. Success under RHA § 10 requires the United States to show that the barrier sits within navigable water.¹⁷ Navigability is a question of fact,¹⁸ and the definition of navigability has been repeated and refined by federal courts since at least 1870.¹⁹ It was then that the Supreme Court explained that a river is navigable if it is "used, or [is] susceptible of being used, in [its] ordinary condition, as [a] highway[ ] for [interstate or foreign] commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water."²⁰

Later cases have fleshed out this definition. We now know that a river is navigable if non-commercial uses evince its suitability for commercial traffic, even if it is not presently being used for commerce,²¹ or if reasonable improvements, even hypothetical ones, could make it suitable for commercial use.²² And it is fine if "the water course is interrupted by occasional natural obstructions or portages" or not suitable for commercial traffic during "all seasons of the year, or at all stages of the water."²³ Once a river is found to be navigable, it remains so, even if natural or artificial changes later render it incapable of commercial use.²⁴

The definition of navigability is broad—unsurprising, given...