Texas Border-Barrier Spat Takes a New Turn As the State Seizes, Seals Off, Riverfront Park

‘See you in court.’

By Andrew R. Arthur on January 15, 2024

I’ve been extensively covering a dispute between the administration and the state of Texas over state-owned concertina wire (“c-wire”) fencing along 29 miles of the Rio Grande near Eagle Pass, Texas. The most recent development had been a request by Biden’s DOJ for the Supreme Court to intervene to allow CBP to remove that barrier. The spat has taken a new turn, with Texas National Guard troops occupying Shelby Park, a city property directly adjacent to the river, and barring Border Patrol agents from entering. That has sent DOJ, yet again, back to the justices. The state’s governor, however, has a simple response for the White House: “See you in court”.

Brief Recap. Before I get to the goings-on in Shelby Park, a brief recap to set the stage.

As part of “Operation Lone Star”, a state initiative to assist overworked Border Patrol agents dealing with the migrant surge that has been ongoing since just after President Biden took office, state troopers from the Texas Department of Public Safety (DPS) and National Guard troops from the Texas Military Department (TMD) began placing c-wire barriers along the Rio Grande to deter a wave of migrants expected to cross once Title 42 ended on May 11.

By and large, CBP has been grateful for those barriers — except in Border Patrol’s Del Rio sector, or more precisely, 29 miles of the border in Maverick County, Texas, including Eagle Pass.

Beginning in September, for reasons that remain unclear, agents began cutting and removing sections of the c-wire barrier there. That prompted the state of Texas to go to federal district court to stop that destruction of its property.

The U.S. district court judge hearing that case, Alia Moses, put a brief stop to CBP’s actions in October, but then in December, she denied the state’s request for a preliminary injunction, freeing the Biden administration to wreck the barriers to facilitate aliens’ illicit entries into the country.

Judge Moses was sympathetic to the state’s concerns (and critical of the administration’s actions), but found that there was nothing she could do because the federal government had not waived its sovereign immunity to claims of the sort Texas had brought.

The state then turned to the Fifth Circuit, which granted Texas a temporary administrative stay preventing CBP from removing the barrier — except for migrant- and officer-safety reasons.

The circuit court followed that order up with a more substantive one on December 19, enjoining CBP from “damaging, destroying, or otherwise interfering with Texas’s c-wire fence in the vicinity of Eagle Pass” (with an exception for emergent circumstances) while it heard the state’s appeal of Judge Moses’ order.

On January 2, Elizabeth Prelogar — solicitor general of the United States and DOJ’s top courtroom lawyer — filed a 42-page application with Justice Alito (as the circuit justice for the Fifth Circuit), asking the Supreme Court to vacate that Fifth Circuit injunction. The Court has yet to rule on that request.

Shelby Park. That brings me to Shelby Park, 47 acres of parkland owned by the city of Eagle Pass, which is bordered by West Main Street, Ryan Street, International Bridge 1, and the Rio Grande. It contains four sports fields, a boat ramp, and a parking lot.

It’s normally more idyllic than it has been of late, that is, ever since Border Patrol started using it as an outdoor staging area for illegal migrants agents apprehended after crossing the river, pending their transportation for processing. Border Patrol has also been using the park’s ramp to launch their boats into the river.

Texas Takes Control. Late on the evening of January 10, the state of Texas took control of the park, ostensibly under Operation Lone Star, with National Guard troops erecting c-wire barriers farther up the bank from the river and around an area of land that includes the park. The state also started barring Border Patrol from entering that area, accessing the boat ramp, or staging migrants in the park.

Bill Melugin tweeted on January 11:

Raising of course the question who those “organizations that perpetuate illegal immigrant crossings in the park and greater Eagle Pass area” that the Texas Military Department was referencing could be.

DOJ’s “Supplemental Memorandum”. The state’s seizure of Shelby Park and its prevention of Border Patrol from accessing the area sent Prelogar back to the Supreme Court, where on January 12 she filed a “Supplemental Memorandum Regarding Emergency Application to Vacate the Appeal” in the c-wire case, formally captioned DHS v. Texas.

From her description, it’s quite the standoff, with gates newly erected by the National Guard and armed personnel blocking “Border Patrol’s normal access to the border through entry points”, and a Texas Humvee preventing “Border Patrol from using an access road through the preexisting state border barrier”.

She complains:

Texas’s new actions since the government’s filing [of its application with Justice Alito] demonstrate an escalation of the State’s measures to block Border Patrol’s ability to patrol or even to surveil the border and be in a position to respond to emergencies. Those actions have also changed the situation on the ground from the account in prior filings in this Court, including Texas’s opposition. Those developments reinforce the need for this Court to vacate the court of appeals’ injunction, and to do so as soon as possible.

The National Border Patrol Council — the union representing agents — applauded the state’s action, however, with council President Brandon Judd asserting:

Governor Abbott is not harming Border Patrol operations, he is enhancing them. ... His seizing control of Shelby Park allows our agents to deploy to troubled spots that experience high numbers of gotaways. Governor Abbott’s actions should be seen as a force multiplier.

Texas Gov. Greg Abbott (R) plainly welcomes the opportunity to hash all of this out in front of the highest court in the land. On January 2, after Prelogar made her first filing with Justice Alito, he tweeted:

Then two hours after Melugin issued his January 11 post on X, above, Abbott retweeted it, adding his own gloss:

Will the justices allow Texas to continue making the Rio Grande at Eagle Pass “a tough place” for migrants to cross border illegally? That remains to be seen. But as President Biden doubles down on his efforts to keep the border there accessible to illegal entrants, Texas’ governor is raising the stakes to stop him.