By Todd J. Gillman and Aarón Torres

WASHINGTON — Texas hit back against the Justice Department effort to remove its 1,000-foot buoy barrier from the Rio Grande by arguing the federal government only has jurisdiction over navigable rivers, and that the spot near Eagle Pass isn’t.

The latest filing also acknowledges for the first time that the barrier includes a 2-foot “anti-dive net” below the surface, bolstering the contention by critics that it’s designed to “trap” migrants who cross into the United States illegally.

In Congress, 14 Texas Republicans urged colleagues Thursday to defund the Department of Homeland Security, which includes the Border Patrol, Secret Service and Coast Guard, on grounds the agency tasked with securing the border hasn’t done a good enough job.

“We must use the power of the purse to force President Biden to end the carnage resulting from open borders. No appropriation should fund DHS until the necessary steps are taken to secure the border,” the group, led by Rep. Chip Roy, R-Austin, wrote to House colleagues. “Simply put, no member of Congress should agree to fund a federal agency at war with his state and people. … No border security, no funding.”

Many of the same lawmakers filed a friend of the court brief Wednesday that pressed the same point the state makes in its new filing in Austin federal court: The 1899 federal law that bans unauthorized construction in a river only applies if the river is wide and deep enough for shipping.

Besides, the state argued, “Texas has a sovereign right to defend itself against invasion by transnational cartels like the one occurring here.”

The site near Eagle Pass where the state installed a 1,000-foot floating barrier is 200 feet wide, ranging from “ankle-to-knee deep” to 4 feet near the midpoint.

“The buoys at issue here have been deployed in a segment of the Rio Grande comprised of sand bars, shallow water, water with inconsistent depths, small islands, large rocks, man-made debris” and logs and stumps, the state told the court.

“No commercial boats, barges, fishing boats, cargo ships or carriers, tankers, or other commercial vessels operate on this segment” and even if that part of the river were navigable, the state asserted, “the buoy system does not decrease the navigable capacity of the river.”

The state’s court filing runs 371 pages, most of that transcripts of depositions and a lengthy DHS inspector general report on border security.

Two affidavits confirm for the first time that the barrier includes an underwater net: from Victor Escalon, the Texas Department of Public Safety regional director for South Texas, and from Loren Flossman, project manager with Cochrane USA.

“Stainless steel mesh fastened directly under the buoys acts as [an] anti-dive net,” Flossman said.

His declaration provides other previously undisclosed detail on the barrier’s design: 12-meter chains tether it to “heavy concrete blocks” on the riverbed, with no permanent anchors.

Texas officials say the barrier is meant to divert migrants to ports of entry, avoiding the dangers of a river crossing.

Many migrants cross between those ports because once on U.S. soil, they can turn themselves in and make an asylum claim. At the bridges, they are turned away before crossing the border unless they have a hard-to-obtain appointment.

‘No additional danger’

Cochrane was awarded an $850,000 contract for the buoys in April. The state’s contracting database indicates no other vendor submitted a bid.

Flossman, a former U.S. Customs and Border Patrol procurement official, recounted that under the Trump administration, CBP initially contracted for a similar barrier.

That was canceled in January 2021 when President Joe Biden took office and ordered an immediate halt to all border wall construction.

Flossman told the court that a similar floating barrier has been used in South Africa and Nigeria. It was tested by CBP for three days and found to pose “no additional danger to agents or migrants.”

The design, Flossman said, “does not interfere with the travel of watercraft up and down the river,” though it’s impossible for boats to get to the other side without going around.

Critics have called the buoy system barbaric and inhumane and linked it to the drowning deaths of two migrants last week. One unidentified victim was caught on the buoys, though state officials say he died upstream and floated into the barrier.

Victor Escalon, the Texas Department of Public Safety regional director for South Texas, said in a declaration included in the filing that he is unaware of deaths or injuries that occurred as a result of the buoys.

Even if the people didn’t die directly because of the barrier, “It’s forcing people to go into parts of the river that are more dangerous,” said Rep. Joaquin Castro, D-San Antonio, during a border visit Wednesday.

Roy and the other Texas conservatives who called on colleagues to zero out funding for the DHS argued that several conditions must be met before they relent, including:

• the ouster of Homeland Security Secretary Alejandro Mayorkas;
• signing of “strong border security legislation” that leaves no room for mass release of migrants;
• new policies to “give law enforcement and/or our military the tools necessary to target dangerous cartels;
• and federal reimbursement for the $10 billion the state of Texas will have spent within the next two years on Gov. Greg Abbott’s Operation Lone Star.

The annual federal budget expires Sept. 30 and Roy’s group wants to use that as leverage.

The demands are nonstarters at the White House, which has defended Mayorkas and vehemently condemned Abbott.

Operation Lone Star has included deployments of state police and National Guard. Texas also has sent migrants by bus to the U.S. Capitol, the gates of Vice President Kamala Harris’ official residence, Martha’s Vineyard, New York City and other far-flung corners of the country in an effort to make Democratic officials and their constituents squirm.

Democrats strongly oppose militarizing the border, and Mexican officials have shown no interest in allowing U.S. military personnel into their country.

On Thursday, the conservative Texas Public Policy Foundation filed a friend of the court brief siding with Texas in the buoy dispute.

The brief — submitted on behalf of 22 Republicans in the U.S. House, including Roy and others on his letter demanding defunding of the Homeland Security Department — calls it “absurd” to describe the Rio Grande as navigable.

The law at issue, it argues, “did not intend to grant federal agencies unchecked power to regulate every ditch and stream that once upon a time could have carried a boat.”

Rep. Jodey Arrington, R-Lubbock, led the effort.

He, Roy and others have been outspoken in defending Texas’ authority to secure the border.

Their brief includes two photos of dry riverbank to show that the Rio Grande is certainly not navigable all the time along its entire length. One shows people walking on a dry riverbed in what appears to be the Santa Elena Canyon in Big Bend, where cliffs rise 1,500 feet on either side.

Abbott has justified incursions on the river and surrounding federal property by citing the state’s “sovereign” right to defend itself against “invasion.”

“The United States has failed to defend Texas’s southern border, leading to millions of individuals and hundreds of millions of fatal doses of drugs like fentanyl illegally entering the State and the United States —often trafficked by cartels that function as transnational criminal organizations,” Texas’ brief says.

The buoy system is an effort “to defend its own borders, since the United States has lawlessly refused to do so,” the brief says. “That buoy system is effective; it has nearly eliminated illegal crossings of people and drugs where it has been placed and will ultimately save lives.”

This story, originally published in The Dallas Morning News, is reprinted as part of a collaborative partnership between The Dallas Morning News and Texas Metro News. The partnership seeks to boost coverage of Dallas’ communities of color, particularly in southern Dallas- at the bottom.