Loading
Government
11 min read
Areas of Expertise :
Government, Civil Engineering, Hydrology, Environmental Engineering, Structural Engineering
Published Date:
Last Modified Date:
Jurisdiction:
Federal. Fifth Circuit
Court:
Texas placed a roughly 1,000-foot floating barrier in the Rio Grande near Eagle Pass in July 2023 as part of Operation Lone Star. The installation consisted of large orange buoys connected by cables and secured to the riverbed with concrete anchors. Court records also described stainless-steel anti-dive mesh extending beneath about 500 feet of the barrier. On July 24, 2023, the United States sued Texas and Governor Greg Abbott in the U.S. District Court for the Western District of Texas. The federal government alleged that Texas had installed a structure or obstruction in navigable waters without the authorization required under Section 10 of the Rivers and Harbors Act of 1899. Texas disputed the government's navigability theory and its interpretation of the statute.
The litigation developed into disputes over historical river use, commercial navigation, barrier design, engineering, possible navigation improvements, and border operations. U.S. District Judge David A. Ezra granted a preliminary injunction in September 2023, but the en banc Fifth Circuit reversed that order in July 2024 after concluding that the United States had not established a likelihood of proving navigability on the preliminary record. Texas also entered into expert-service contracts and amendments valued at nearly $1 million, while state payment records reflected about $530,000 in witness fees between March and December 2024. The public district-court docket tracked by the Civil Rights Litigation Clearinghouse was last updated on September 17, 2026 and continues to classify United States v. Abbott, No. 1:23-cv-00853-DAE, as ongoing, with no prevailing party recorded.
Texas began installing the buoy system near Eagle Pass around July 10, 2023. The approximately 1,000-foot installation was placed about two miles south of the Camino Real International Bridge and secured with cables and concrete anchors. The federal government maintained that Texas had not obtained the required federal authorization. On July 24, the Department of Justice filed suit under the Rivers and Harbors Act, seeking to stop further construction and require removal of the existing barrier.
Judge Ezra held a preliminary-injunction hearing on August 22, 2023. The parties disputed whether the affected section of the Rio Grande qualified as navigable under federal law and whether the buoy system fell within Section 10 of the Rivers and Harbors Act.
Texas presented Loren Flossman of Cochrane, the contractor involved in designing and installing the system. Judge Ezra later referred to Flossman as “the state’s expert.” His testimony addressed the concrete anchoring arrangement and additional chain length that allowed the buoys to rise as river levels increased.
On September 6, the court granted the United States' request for preliminary relief. The order prohibited Texas from installing additional buoys, blockades, or similar structures in the river while the injunction remained in effect. Texas was also directed to reposition the existing barrier and related materials toward the Texas riverbank. Texas appealed that same day.
A divided Fifth Circuit panel affirmed the preliminary injunction on December 1, 2023. Texas sought review by the full appellate court. On January 17, 2024, the Fifth Circuit granted rehearing en banc, which vacated the panel opinion.
The preliminary injunction was later stayed while the en banc proceedings continued. Meanwhile, the district-court litigation moved through discovery as the parties developed a broader record than the evidence presented during the August 2023 hearing.
Texas moved to dismiss the federal government's amended complaint. Judge Ezra granted the motion in part and denied it in part on April 26, 2024.
The court dismissed the federal government's Treaty of Guadalupe Hidalgo claim with prejudice but allowed the Rivers and Harbors Act claim to continue. At the pleading stage, the court found that the allegations concerning the anchored buoy system were sufficient to support a claim that it could qualify as a structure or obstruction governed by Section 10. The precise statutory classification of the barrier remained for later proceedings based on the developed evidence.
Discovery during 2024 added material beyond the record considered during the preliminary-injunction hearing. The litigation involved questions concerning engineering, historical river use, environmental conditions, water resources, possible navigation improvements, and border operations.
Texas entered into several expert-service agreements while preparing its defense. The contracts and amendments were issued between February and August 2024 and covered individuals and firms working across several technical disciplines.
The en banc Fifth Circuit reversed the preliminary injunction on July 30, 2024. The majority held that the district court clearly erred in finding that the United States was likely to prove that the barrier was located within a navigable section of the Rio Grande.
The majority considered historical commercial use, ferry operations, government studies, earlier federal navigability determinations, and possible improvements to the river. Several judges disagreed with portions of that analysis in dissenting opinions. The Fifth Circuit reversed the preliminary injunction and remanded the case with instructions to vacate it and continue further proceedings in the district court.
Texas sought a jury trial in the district-court action. After Judge Ezra rejected the request, Texas petitioned the Fifth Circuit for a writ of mandamus directing the district court to place the case on a jury docket.
On September 20, 2024, the Fifth Circuit denied the petition. The court concluded that Texas had not established a Seventh Amendment right to a jury trial because the United States was pursuing equitable injunctive relief. Later that month, the district court vacated the September 2023 preliminary injunction following the en banc mandate.
Between February and August 2024, the Texas Attorney General's Office entered into expert-service contracts and amendments with an authorized value approaching $1 million. The agreements covered individuals and firms working in engineering, environmental analysis, ecology, historical research, water resources, and border-related matters.
State comptroller records showed approximately $530,000 in witness-fee payments between March and December 2024. The contract total represented authorized spending, while the payment figure reflected amounts recorded as paid during that period.
Former U.S. Border Patrol Chief Rodney Scott was retained through Honor Consulting Plus for consulting or testifying expert services. His agreement authorized up to $50,000 in services at $600 per hour. Texas later listed Scott among the witnesses it intended to call at trial.
The public district-court docket tracked by the Civil Rights Litigation Clearinghouse was last updated on September 17, 2026 and continues to list United States v. Abbott, No. 1:23-cv-00853-DAE, as an ongoing case in the Western District of Texas. No prevailing party is recorded.
The July 2024 Fifth Circuit decision resolved the preliminary-injunction appeal. The Rivers and Harbors Act claim had survived Texas's motion to dismiss and was not terminated by the appellate ruling on preliminary relief.
United States District Court for the Western District of Texas
Case Name:
United States v. Abbott
Admiralty Law
Water Resources
Water Rights
Water and Wastewater Engineering
Underwater Inspection
Structural Analysis
Surveying
Topography
Subsurface Investigation
Soil Engineering
Texas placed a roughly 1,000-foot floating barrier in the Rio Grande near Eagle Pass in July 2023 as part of Operation Lone Star. The installation consisted of large orange buoys connected by cables and secured to the riverbed with concrete anchors. Court records also described stainless-steel anti-dive mesh extending beneath about 500 feet of the barrier. On July 24, 2023, the United States sued Texas and Governor Greg Abbott in the U.S. District Court for the Western District of Texas. The federal government alleged that Texas had installed a structure or obstruction in navigable waters without the authorization required under Section 10 of the Rivers and Harbors Act of 1899. Texas disputed the government's navigability theory and its interpretation of the statute.
The litigation developed into disputes over historical river use, commercial navigation, barrier design, engineering, possible navigation improvements, and border operations. U.S. District Judge David A. Ezra granted a preliminary injunction in September 2023, but the en banc Fifth Circuit reversed that order in July 2024 after concluding that the United States had not established a likelihood of proving navigability on the preliminary record. Texas also entered into expert-service contracts and amendments valued at nearly $1 million, while state payment records reflected about $530,000 in witness fees between March and December 2024. The public district-court docket tracked by the Civil Rights Litigation Clearinghouse was last updated on September 17, 2026 and continues to classify United States v. Abbott, No. 1:23-cv-00853-DAE, as ongoing, with no prevailing party recorded.
Texas began installing the buoy system near Eagle Pass around July 10, 2023. The approximately 1,000-foot installation was placed about two miles south of the Camino Real International Bridge and secured with cables and concrete anchors. The federal government maintained that Texas had not obtained the required federal authorization. On July 24, the Department of Justice filed suit under the Rivers and Harbors Act, seeking to stop further construction and require removal of the existing barrier.
Judge Ezra held a preliminary-injunction hearing on August 22, 2023. The parties disputed whether the affected section of the Rio Grande qualified as navigable under federal law and whether the buoy system fell within Section 10 of the Rivers and Harbors Act.
Texas presented Loren Flossman of Cochrane, the contractor involved in designing and installing the system. Judge Ezra later referred to Flossman as “the state’s expert.” His testimony addressed the concrete anchoring arrangement and additional chain length that allowed the buoys to rise as river levels increased.
On September 6, the court granted the United States' request for preliminary relief. The order prohibited Texas from installing additional buoys, blockades, or similar structures in the river while the injunction remained in effect. Texas was also directed to reposition the existing barrier and related materials toward the Texas riverbank. Texas appealed that same day.
A divided Fifth Circuit panel affirmed the preliminary injunction on December 1, 2023. Texas sought review by the full appellate court. On January 17, 2024, the Fifth Circuit granted rehearing en banc, which vacated the panel opinion.
The preliminary injunction was later stayed while the en banc proceedings continued. Meanwhile, the district-court litigation moved through discovery as the parties developed a broader record than the evidence presented during the August 2023 hearing.
Texas moved to dismiss the federal government's amended complaint. Judge Ezra granted the motion in part and denied it in part on April 26, 2024.
The court dismissed the federal government's Treaty of Guadalupe Hidalgo claim with prejudice but allowed the Rivers and Harbors Act claim to continue. At the pleading stage, the court found that the allegations concerning the anchored buoy system were sufficient to support a claim that it could qualify as a structure or obstruction governed by Section 10. The precise statutory classification of the barrier remained for later proceedings based on the developed evidence.
Discovery during 2024 added material beyond the record considered during the preliminary-injunction hearing. The litigation involved questions concerning engineering, historical river use, environmental conditions, water resources, possible navigation improvements, and border operations.
Texas entered into several expert-service agreements while preparing its defense. The contracts and amendments were issued between February and August 2024 and covered individuals and firms working across several technical disciplines.
The en banc Fifth Circuit reversed the preliminary injunction on July 30, 2024. The majority held that the district court clearly erred in finding that the United States was likely to prove that the barrier was located within a navigable section of the Rio Grande.
The majority considered historical commercial use, ferry operations, government studies, earlier federal navigability determinations, and possible improvements to the river. Several judges disagreed with portions of that analysis in dissenting opinions. The Fifth Circuit reversed the preliminary injunction and remanded the case with instructions to vacate it and continue further proceedings in the district court.
Texas sought a jury trial in the district-court action. After Judge Ezra rejected the request, Texas petitioned the Fifth Circuit for a writ of mandamus directing the district court to place the case on a jury docket.
On September 20, 2024, the Fifth Circuit denied the petition. The court concluded that Texas had not established a Seventh Amendment right to a jury trial because the United States was pursuing equitable injunctive relief. Later that month, the district court vacated the September 2023 preliminary injunction following the en banc mandate.
Between February and August 2024, the Texas Attorney General's Office entered into expert-service contracts and amendments with an authorized value approaching $1 million. The agreements covered individuals and firms working in engineering, environmental analysis, ecology, historical research, water resources, and border-related matters.
State comptroller records showed approximately $530,000 in witness-fee payments between March and December 2024. The contract total represented authorized spending, while the payment figure reflected amounts recorded as paid during that period.
Former U.S. Border Patrol Chief Rodney Scott was retained through Honor Consulting Plus for consulting or testifying expert services. His agreement authorized up to $50,000 in services at $600 per hour. Texas later listed Scott among the witnesses it intended to call at trial.
The public district-court docket tracked by the Civil Rights Litigation Clearinghouse was last updated on September 17, 2026 and continues to list United States v. Abbott, No. 1:23-cv-00853-DAE, as an ongoing case in the Western District of Texas. No prevailing party is recorded.
The July 2024 Fifth Circuit decision resolved the preliminary-injunction appeal. The Rivers and Harbors Act claim had survived Texas's motion to dismiss and was not terminated by the appellate ruling on preliminary relief.
Loren Flossman: Flossman, of Cochrane, was involved in designing and installing the floating barrier for Texas. He testified during the August 22, 2023 preliminary-injunction hearing, and Judge David A. Ezra's order referred to him as “the state’s expert.” His testimony addressed the barrier's concrete anchoring system and the additional chain length that allowed the buoys to rise as river levels increased.
Rodney Scott: Texas retained former U.S. Border Patrol Chief Rodney Scott through Honor Consulting Plus for consulting or testifying expert services. Scott served with the U.S. Border Patrol for more than 29 years and later became Chief of the agency. His contract authorized billing at $600 per hour, subject to a $50,000 limit, and Texas later listed him among the witnesses it intended to call at trial. Public reporting stated that no expert report or invoice from Scott had been identified as of December 2024.
A hydrogeology expert is often engaged when a dispute involves groundwater, subsurface water movement, soil and rock conditions, seepage, or the interaction between groundwater and surface-water systems. These experts may evaluate groundwater levels, geologic formations, permeability, subsurface flow paths, riverbank conditions, and available hydrogeologic data. Their analysis can also address how groundwater and subsurface conditions interact with rivers, channels, or nearby infrastructure.
Civil engineering experts are frequently retained when litigation involves structures installed in or near rivers, channels, shorelines, or other waterways. Their analysis may cover anchoring systems, structural components, construction methods, hydraulics, drainage, and site conditions. They may also review design documents and engineering records to assess how a structure interacts with surrounding land and water.
Environmental engineering experts are commonly consulted in disputes involving constructed features and natural water systems. Their work may include reviewing water conditions, sediment, permitting requirements, environmental compliance, site investigations, and the effects of infrastructure on surrounding areas. Depending on the case, they may also evaluate environmental data alongside engineering plans and regulatory records.
The federal government's Section 10 claim required examination of the part of the Rio Grande where Texas installed the barrier. Judge Ezra found at the preliminary stage that the United States had made a sufficient showing of navigability. The en banc Fifth Circuit later concluded that the preliminary record did not establish the government's likelihood of proving that the barrier occupied navigable water.
The appellate analysis addressed historical commercial use, ferry operations, prior government determinations, the physical characteristics of the river, and whether reasonable improvements could make the waterway suitable for commercial navigation.
The September 2023 order addressed temporary relief while the underlying litigation continued. It was not a final judgment on the Rivers and Harbors Act claim.
When the Fifth Circuit reversed the injunction in July 2024, it reviewed whether the United States had established the requirements for preliminary relief. The appellate court returned the dispute to the district court for further proceedings rather than entering judgment on the entire federal action.
The navigability dispute required examination of how the Rio Grande had been used over time. The record included evidence concerning ferry operations, commercial transportation, federal studies, statutes, treaties, agency determinations, and historical accounts of river travel.
The Fifth Circuit majority and dissenting judges disagreed over how portions of that evidence should be treated under federal navigability law. Among the disputed issues was whether historical ferry traffic across the international boundary supported navigability and whether earlier federal studies established navigable conditions near Eagle Pass.
The physical construction of the barrier formed part of the federal government's Section 10 claim. The installation included large floating buoys, metal cables, concrete anchors, and anti-dive mesh below part of the waterline.
At the preliminary-injunction hearing, Texas's expert Loren Flossman addressed the anchoring system and the additional chain length that allowed the barrier to rise with changing river levels. In April 2024, the district court separately found that the government's allegations concerning the installation were sufficient for the Rivers and Harbors Act claim to proceed. The court left the final statutory classification of the barrier for later proceedings.
Texas entered into expert-service contracts and amendments worth nearly $1 million during 2024. That total represented authorized contract value rather than money already paid under the agreements.
State comptroller records showed about $530,000 in witness-fee payments between March and December 2024. The two figures therefore measure different parts of Texas's expert-related spending.
United States v. Abbott has moved through a preliminary injunction, panel and en banc appellate review, a motion-to-dismiss ruling, expert discovery, and a separate dispute over Texas's request for a jury trial. Loren Flossman testified for Texas during the original preliminary-injunction proceedings, while Rodney Scott was later retained for consulting or testifying expert services and listed as an intended trial witness. The Fifth Circuit reversed the September 2023 preliminary injunction in July 2024, while the federal Rivers and Harbors Act claim had already survived Texas's dismissal motion. The public district-court docket was last updated on September 17, 2026 and continues to list the case as ongoing, with no prevailing party recorded.
Why did the United States sue Texas over the Rio Grande buoys?
The Department of Justice sued Texas and Governor Greg Abbott on July 24, 2023, alleging that the floating barrier had been installed without the federal authorization required under the Rivers and Harbors Act of 1899. The government sought to stop further construction and require removal of the existing barrier. Texas disputed the government's navigability and statutory arguments.
What did the September 2023 injunction require Texas to do?
Judge David A. Ezra prohibited Texas from installing additional buoys, blockades, or similar structures in the Rio Grande while the preliminary injunction remained in effect. Texas was also ordered to reposition the existing barrier and related materials toward the Texas riverbank. The Fifth Circuit later reversed the injunction, and the district court vacated it following the appellate mandate.
Did the Fifth Circuit finally rule that the Rio Grande is not navigable?
The July 30, 2024 en banc ruling arose from an appeal of a preliminary injunction. The majority held that the district court clearly erred in finding that the United States was likely to prove that the barrier was located in a navigable stretch of the Rio Grande. The Fifth Circuit reversed the preliminary injunction and returned the litigation to the district court rather than entering final judgment on the entire Rivers and Harbors Act action.
What physical features of the Eagle Pass buoy barrier were disputed in the case?
The barrier consisted of large connected buoys secured with metal cables and concrete anchors placed in the Rio Grande. Court records also described approximately 500 feet of stainless-steel anti-dive mesh extending beneath part of the installation. These design features became relevant to the federal government's argument that the system could qualify as a structure or obstruction regulated under Section 10 of the Rivers and Harbors Act.
How did the courts evaluate navigability in United States v. Abbott?
Loren Flossman: Flossman, of Cochrane, was involved in designing and installing the floating barrier for Texas. He testified during the August 22, 2023 preliminary-injunction hearing, and Judge David A. Ezra's order referred to him as “the state’s expert.” His testimony addressed the barrier's concrete anchoring system and the additional chain length that allowed the buoys to rise as river levels increased.
Rodney Scott: Texas retained former U.S. Border Patrol Chief Rodney Scott through Honor Consulting Plus for consulting or testifying expert services. Scott served with the U.S. Border Patrol for more than 29 years and later became Chief of the agency. His contract authorized billing at $600 per hour, subject to a $50,000 limit, and Texas later listed him among the witnesses it intended to call at trial. Public reporting stated that no expert report or invoice from Scott had been identified as of December 2024.
A hydrogeology expert is often engaged when a dispute involves groundwater, subsurface water movement, soil and rock conditions, seepage, or the interaction between groundwater and surface-water systems. These experts may evaluate groundwater levels, geologic formations, permeability, subsurface flow paths, riverbank conditions, and available hydrogeologic data. Their analysis can also address how groundwater and subsurface conditions interact with rivers, channels, or nearby infrastructure.
Civil engineering experts are frequently retained when litigation involves structures installed in or near rivers, channels, shorelines, or other waterways. Their analysis may cover anchoring systems, structural components, construction methods, hydraulics, drainage, and site conditions. They may also review design documents and engineering records to assess how a structure interacts with surrounding land and water.
Environmental engineering experts are commonly consulted in disputes involving constructed features and natural water systems. Their work may include reviewing water conditions, sediment, permitting requirements, environmental compliance, site investigations, and the effects of infrastructure on surrounding areas. Depending on the case, they may also evaluate environmental data alongside engineering plans and regulatory records.
The federal government's Section 10 claim required examination of the part of the Rio Grande where Texas installed the barrier. Judge Ezra found at the preliminary stage that the United States had made a sufficient showing of navigability. The en banc Fifth Circuit later concluded that the preliminary record did not establish the government's likelihood of proving that the barrier occupied navigable water.
The appellate analysis addressed historical commercial use, ferry operations, prior government determinations, the physical characteristics of the river, and whether reasonable improvements could make the waterway suitable for commercial navigation.
The September 2023 order addressed temporary relief while the underlying litigation continued. It was not a final judgment on the Rivers and Harbors Act claim.
When the Fifth Circuit reversed the injunction in July 2024, it reviewed whether the United States had established the requirements for preliminary relief. The appellate court returned the dispute to the district court for further proceedings rather than entering judgment on the entire federal action.
The navigability dispute required examination of how the Rio Grande had been used over time. The record included evidence concerning ferry operations, commercial transportation, federal studies, statutes, treaties, agency determinations, and historical accounts of river travel.
The Fifth Circuit majority and dissenting judges disagreed over how portions of that evidence should be treated under federal navigability law. Among the disputed issues was whether historical ferry traffic across the international boundary supported navigability and whether earlier federal studies established navigable conditions near Eagle Pass.
The physical construction of the barrier formed part of the federal government's Section 10 claim. The installation included large floating buoys, metal cables, concrete anchors, and anti-dive mesh below part of the waterline.
At the preliminary-injunction hearing, Texas's expert Loren Flossman addressed the anchoring system and the additional chain length that allowed the barrier to rise with changing river levels. In April 2024, the district court separately found that the government's allegations concerning the installation were sufficient for the Rivers and Harbors Act claim to proceed. The court left the final statutory classification of the barrier for later proceedings.
Texas entered into expert-service contracts and amendments worth nearly $1 million during 2024. That total represented authorized contract value rather than money already paid under the agreements.
State comptroller records showed about $530,000 in witness-fee payments between March and December 2024. The two figures therefore measure different parts of Texas's expert-related spending.
United States v. Abbott has moved through a preliminary injunction, panel and en banc appellate review, a motion-to-dismiss ruling, expert discovery, and a separate dispute over Texas's request for a jury trial. Loren Flossman testified for Texas during the original preliminary-injunction proceedings, while Rodney Scott was later retained for consulting or testifying expert services and listed as an intended trial witness. The Fifth Circuit reversed the September 2023 preliminary injunction in July 2024, while the federal Rivers and Harbors Act claim had already survived Texas's dismissal motion. The public district-court docket was last updated on September 17, 2026 and continues to list the case as ongoing, with no prevailing party recorded.
Why did the United States sue Texas over the Rio Grande buoys?
The Department of Justice sued Texas and Governor Greg Abbott on July 24, 2023, alleging that the floating barrier had been installed without the federal authorization required under the Rivers and Harbors Act of 1899. The government sought to stop further construction and require removal of the existing barrier. Texas disputed the government's navigability and statutory arguments.
What did the September 2023 injunction require Texas to do?
Judge David A. Ezra prohibited Texas from installing additional buoys, blockades, or similar structures in the Rio Grande while the preliminary injunction remained in effect. Texas was also ordered to reposition the existing barrier and related materials toward the Texas riverbank. The Fifth Circuit later reversed the injunction, and the district court vacated it following the appellate mandate.
Did the Fifth Circuit finally rule that the Rio Grande is not navigable?
The July 30, 2024 en banc ruling arose from an appeal of a preliminary injunction. The majority held that the district court clearly erred in finding that the United States was likely to prove that the barrier was located in a navigable stretch of the Rio Grande. The Fifth Circuit reversed the preliminary injunction and returned the litigation to the district court rather than entering final judgment on the entire Rivers and Harbors Act action.
What physical features of the Eagle Pass buoy barrier were disputed in the case?
The barrier consisted of large connected buoys secured with metal cables and concrete anchors placed in the Rio Grande. Court records also described approximately 500 feet of stainless-steel anti-dive mesh extending beneath part of the installation. These design features became relevant to the federal government's argument that the system could qualify as a structure or obstruction regulated under Section 10 of the Rivers and Harbors Act.
How did the courts evaluate navigability in United States v. Abbott?
The parties disputed whether the stretch of the Rio Grande near Eagle Pass met the federal legal standard for navigability. The record included ferry operations, commercial transportation, federal studies, government determinations, physical river conditions, and evidence concerning whether reasonable improvements could make the waterway suitable for commercial navigation.
Admiralty Law
Water Resources
Water Rights
Water and Wastewater Engineering
Underwater Inspection
Structural Analysis
Surveying
Topography
Subsurface Investigation
Soil Engineering
Geotechnical Engineering, +4
Government
Government, +4
Government
The parties disputed whether the stretch of the Rio Grande near Eagle Pass met the federal legal standard for navigability. The record included ferry operations, commercial transportation, federal studies, government determinations, physical river conditions, and evidence concerning whether reasonable improvements could make the waterway suitable for commercial navigation.