see Jeff King is participating with us today. via video. First case this morning is 23 Dash 50632. United States of America versus Abbott.
Thank you generation may police corps. For most of its length and much historic history, the Rio Grande is a little more than a creek and vascular causes near a dry region from blood chips have never been used it symbols rocking and ever shifting force to transport passengers or merchandise, except that it's now today it's 70 people pass at least, water is admittedly more consistent, but only interrogation infrastructure that further depletes water. Nevertheless, the United States alleges the district court with three and the panel affirms that the Rio Grande is now subject to the same federal controls as the Mississippi if the US this right, that anybody who are what we teach in Africa, and there are subjects that are extinction, in one of the United States aren't ever investigated, whether it can be navigated to it can be or ever could have been crossed by means of a boat, or three, it could accidentally which investments potentially infinite resources he made to accommodate the 19th century kilos, or even a little barren community. Because everybody water in this circuit is one of those three conditions. That rule is irreconcilable with the fundamental bedrock principle of our federal system and reiterated most recently exactly, and I quote, that regulation of land and water use lies at the core of traditional state authority. And it is not justified by the language of the relevant statute. It has only the century been interpreted to fly to waterways that in your ordinary or natural condition, serves the cargo of the interstate commerce, across which trade and travel up for a day's trip conducted in the traditional or normal means of travel on the water. Moreover, in asking this court to prove exactly three ducks were not enough in the current federalism, the federal government also asked to hold that a state the state or permission slip from Congress in order to take even temporary measures to protect its citizens from the hostile interests of trying to enter its territory, because the court did so after the showing of the harm to legitimate commercial shipping exporter is far more equitable and should be reversed. And welcome to courts questions.
At the district court decided was with the question of whether Texas has been invaded is non justiciable, isn't that right? Yes. Do you agree with that
it is not justiciable. I don't agree with the modifications that the federal government has wrong.
If it's non justiciable, then Texas action would stand because it can't be judicially reviewed. And if that's true, then our case law says that a non justiciable matter means that the district court has no jurisdiction. So this matter would be dismissed. We were curious as to why. Maybe you disagree with all that, but I'm a little curious as to why Texas has impressed and issue versus jurisdictional so we have to consider it anyway.
We do agree with your assessment as to what that would mean, the federal government has asserted instead because it is non justiciable that the district court cannot consider it and it will defense becomes irrelevant. That's not the Supreme Court seven were against Pima which it said that the fact that the governor in that case indicated was Colorado determined that there was an insurrection that was was sufficient and stood by itself. And that is one of the lines or artists listed in Africa. Texas doesn't really because
it would be short or bizarre or lived. If you if if Texas actually stands because that's a constitutional power of the state. It can be overridden by the statutory power of the federal government that expands everything else on its head. It's interesting.
Yes, you would agree with that. It's at the whim of cases and litigated, has been litigated on the grounds of applicability because that's the way the United States has precedents planned but we do definitely with your honor, that the district court cannot question whether or not protested and impatient to the governor's declaration. Assuming that is dispositive under their case, essentially as what about the Supreme Court's decision? Exhibit tomsky versus Clinton. Exhibit Toschi against Clinton didn't address the insurrection issue entirely. The difficulty with the justiciability version of the nation class issue is that's typically raised where it is a the claim that is being asserted is not justiciable here. The question is that as a defense that sounds justiciable, but it's actually being decisive in this case, in our opinion,
can we turn on the mic?
We know from Tugwell and why the ferry cars even illicit commerce, the reason for the move there barriers does cross the Rio Grande here
in the 19th century. So historically, it has and
today we have 28 Bridge and border crossings. And all but four states are divided by their border rivers. So your is your position legally, that the Army Corps does not have authority to dredge border rivers between all but four states and especially between Canada and Mexico, to allow for traffic for commerce, interstate commerce, that's necessarily a cross border routers,
not necessarily an All I'm trying to speak of touchdowns. The this goes to the kidney Oklahoma case where the court determined that just because it is a boundary water does not mean that the underlying navigable river within the purposes of the Rivers and Harbors Act. Now there may be another statute or another power that would allow the Army Corps to dredge those waters. But under the Rivers and Harbors act, it needs to be navigable as the United States conceded on pages 78 to 79 of the record, and hear of the existence of fairy trapping, does not establish its navigability. And again, going back to the Oklahoma case, where navigability turns on whether or not there is sufficient depth to have bolts of officials wrapped to ascend and descend to wherever that is don't go along and not simply go across. Because navigability terms on whether it's used as a nursing highway, and you're on a critical cross undermining spread in here in New Orleans, that you wouldn't describe it as a nurse that has used the interstate highway, she said due to the interstate highway, we drive from worlds to Houston. So that's what's meant by this particular statute, and the United States as the master of its complaint has chosen to sue under this particular statute. So that's an attempt to that theories by themselves are not sufficient. No one says that there is currently commerce in the way that I just described it because as Your Honor just noted, the commerce is crossing ethics illicit, but most importantly, on foot. And under Oregon, the just being able to afford a river does not make it manageable.
You said that the US and Mexico?
No, no.
I'm not going to continue. But I do worry to stop recording now. Now I'm just going to stop. You mentioned that the US is the master of this complaint, want to take the procedural direction, please. Do that events of this case took place in Del Rio, not Austin.
They took place in Eagle Pass which is down river Del Rio
Vista was preceded in
Austin. Yes.
That was united states his choice? Yes, sir. Do I understand correctly that in Austin, these cases are assigned, not randomly selecting the judgment in this case?
I'm not here to tell the Western District designer these cases. But my understanding is that there is no level of division provided to the judges put the
case back where the order says that this judge makes isn't this? Oh, no,
I believe so. Yes. Does that affect our look at all that we do, no matter what I believe. I believe that you really have a say in how it was assigned to this particular judge may not be relevant to
this job.
And in this particular instance, the issue that needs to be reviewed is what I'm trying to say as far as burden of proof of showing that this is navigable. And that is a question of mixed facts and law of Appalachian Power page 404, where the standard and the ultimate conclusion are in the work of the Supreme Court and district have been intertwined. And here that this reporter made a number of legal errors. For example, it relied on very heavily on administrative finding inevitability when that administration agency itself recognizes at 33 CFR 320 9.3 and 329 dot 14, that it is a confusion for the courts. And even if the Court were to look to the factual basis of that determination, you're looking at a 1975 report created by the United States Army Corps of Engineers that found that there was unnecessary for the for the Are mountain war to determine that that can be given to be heard, based on what Judge will describe the census, as applicable treaties and sections. So we're looking at the same case and statutes whether we're talking in 1975, or four, or the statutes myself, and other than a common case, as well as to copy and comment the economic power of pages. 120 indicates a statute does not make navigable in law, what is inevitable fact. And that same page eliminates read of the record determined that there have been no useful navigation between Roma and a castle a distance of about 1000 miles, or roughly speaking, the distance between Washington DC and mobile immobile that standard
was the width of the burden of the United States that is, at this juncture, that is because we are so we are in judgment, right? We are. There, the burden is not so much as submitted into the record for summary judgment tech companies. So what is the level of evidence that is required in the United States at this juncture,
successful parents, and here they will not be offered that much evidence, because they rely on this one report, and one witness who admitted that he had never seen any cars. He also admitted that there that the Navy Bill needs to not fall within the definition of the terms used in the statute. That's the evidence they offer and that's insufficient for the
court also cited witness. The government has shown us observation that Texas put a barge alongside the barrier.
The to stabilize the stabilizing RBS
which has 3000 pounds in anchors, it sounds manageable, but maybe it's sporadic getting a barge up there once in a while the government were to show that there's a pier for the Border Patrol to use border patrols up and down this portion. Would that be proof that it's not worth it? Here for border patrol boats to go up and down around people pass yesterday are giving section 10 authority of the article?
No not do the reverse departments act because it is not the words of Rio Grande down which ironically found just the same verb to be non applicable or COMAR. Half dozen other cases useful for trade for agriculture. The boats that are that can flow in this water can also for brief periods, old man because of the way that they're constructed, they are so shallow that that's not they're not able to carry this for cars, which is part of the reason the district court found in the alternative that the river could be made that we're going to judge Douglass's question on the on the preliminary injunction factions, the United States doesn't offer any evidence from backgrounds either because of affirmation power, their strongest cases point noted, the improvements that wouldn't be necessary have to be reasonable, and they are no evidence of that whatsoever. And again, I don't want any aggravation power up page fact footnote 26 In contrasting what would be reasonable versus what would be unreasonable cited what was required or for improving the Rio Grande make it navigable as an example of what is unreasonable, because it would take many millions of dollars to create a canal. And admittedly, it was a different piece of the river. But it seems it's the same problem, which is too many rocks and rough water. The only reason we have water stretch is because of the irrigation district irrigation infrastructure only puts it about 18 inches deep. And there has been some suggestion that they could just well reprioritize the Wi Fi. But the priorities are set by treaty. And frankly, there's just not enough water. So as a result get useful traffic would be completely unreasonable. CDC illustrated that I will focus on a few hours to the roadways, which was further in tune 72 or roughly contemporaneous with the 1975 report upon which the United States is alive. And in that case, the United States offered evidence that would take a nine foot deep 100 foot wide channel research to prove useful track. And that is to make the real rare, just 200 feet deep, but only 18 inches or 20 feet wide, only 18 inches deep. To have that as a channel would be a massive undertaking that would have on the words of that same reporter series ecological concerns. Now the United States has responded to that by saying well in other cases, it was two to three feet deep was all you needed. But at that time, we were talking about a different type of commercial navigation and they were talking about improvement at the time of using frontier canoes. To say that if that was still the definition of reasonable Chris is an alchemist. Remember that mismatch between a situation where it would help improvable for canoes based on technology to last up now To see that we exist in a time when we're no longer using the news. And that is the situation we create a rule that any bottle of water in this circuit would be navigable which is inconsistent with zakat. If you're
if your arguments correct what any future president be unable to solicit proposals to build up a wall, a similar buoy wall without permission from Texas, with the with the President, United States and his army corps, be unable without permission in Texas to build a boy, you know,
and this goes to some of the very cases that they cite, which is there a difference between what would be in the present moment the federal government's power and the statute that they have enacted or cited? The President has numerous foreign affairs power, some of the Youngstown test that might allow them to build that wall? However, the question here is no, the Texas also has that authority, and it does.
Hear us human trafficking is correctly this preliminary stage and no one is relying upon human trafficking either as the basis for Texas's actions or the United States decisions that correct. That
will be well, Texas has relied on trying to prevent the infiltration of our cartels which were involved in human trafficking or our equities argument, but they are not, to the best of my knowledge, rely on human trafficking to establish commerce. Okay.
What about drownings? The district court seems to have made a point about drownings, which I understand we're not at this point, and we're not related to the border patrol. You know, the the district court has this in one of its opinions. Are you sending one relying upon prevention of drownings? For the Texas's position or what the United States position? I would seem that the district court alluded to this, but it's just seems
to be an illusion. It is an illusion, which is highly problematic, because there's no evidence of grounding in this record at all, for good reason. There were a couple of bodies found in the vicinity of the movies that they were not allowed to have you related to it at all. Tell them even point your honor to the United States is witness Mr. Gomez at far away 476 and 1379. Or he admitted there were no concerns communicating. It was all that question was also discussed by our witness, Mr. Escalon, on page 1270, rsmb, six, these movies are monitored 24/7. So the ACR servers?
Do they make it safer, because people are not trying to pass it in place that's not suitable.
Indeed, that's an honor. That was the purpose of the duties is to try to encourage people to pass over to pass into this country via a logical point of entry, which is Ironbridge and you can't turn on the fridge, you have to focus on making paper that's difficult to determine, your honor that the we are not aware of anybody was who was murdered by the movies and a different case. Again, it's not record. The recording question did suggest that by train by the various means that Texas has channeled us to channel the two people to the law courts, they tweak that and
how do we turn when the the Fed changing economics and navigation all the way around? So statement about evidence? The federal government about 100 years ago or whatever may have been and railroads made the uneconomical to improve certain parts of your brain? And there was one gentleman, how does that factor in in our analysis of whether there could be made available digital email about where it's going today? And how we could go, it could be today, or it would have been economic go on the news ago, except for wherever you are. I
think that it's two separate questions. If there had been an effort to improve the river at the time, it would have been useful in the 19th century, then that you considered in terms of adaptability. The fact that it wasn't that the only situation where anybody actually traveled up through Eagle Pass was a military expedition of 1850s. And nobody went back suggests that at the time, it would have been unreasonable. Today, however, you could still theoretically under their view, admittedly not ours, but we'll take the take the point of your question, you could make it when you make an effort today, it would need to be useful for commercial activity today. Not would have been useful today based on posts that hadn't been used in 100 years. So as so to work in
one place, Raul says you're looking at today whether it could have been a time when could be made never was posted whether it could add again on another one.
I'm looking at Appalachian Power for that, which says that it is reasonable based on when the improvements would have been useful. So an improvement for our canoes today would not be useful because there's no commerce in Texas, it's being done by opinion. Whereas if a, a improvement work needed in the 19th century would have been useful. That's also been codified in needs and then put like a ratchet with the same language. There are no further questions inevitability touching briefly on the struggling structural issue, the United States has equated the obstruction of infrastructure to question and actually defined structures as anything that creates an obstruction. That's a problem on the dissection of statutory language, because under Section nine and section 10, in the reverse of Commerce Act, he Congress has been very specific about what types of things require congressional relationship, what types of things require the department for permission to them, and what types require. And here, there's a lot to be said there distinguishing them at all. They're saying obstruction is a broader term than structure, which doesn't make a lot of sense, because that requires Congress to approve more than what would be required to be created by the Army Corps. So that's the that's the flip flop. So even the structures category, David admitted on their own witness admitted that the buoys do not fall within the his understanding of any of the relevant terms, which is why there is a lot of reliance on the term other structures. But reading that phrase, in its larger statutory context suggests it has to be a more limited notion than it might otherwise if those two words have been used in isolation, and the genesis of structure that he all put out into the river and obstruct traffic now or impede traffic to try not to use the same word that goes to even their own definition of clue in their luminary injunction says something that goes across the river, the buoys do not do that. In fact, their own witness admitted as much that you can pass by the waist with ease, they did this report said, Well, you have to take notice of it. So therefore, it's an obstruction. that's inconsistent with page 250 of the Wilson case. And I'm quoting here, if vessels can freely pass between the concrete piers of a bridge, it seems to us that the common writer navigations reserved. So the notion that you're going to have to observe and to go around scenes in a river is well established in adults with water and honestly, settlers of harbors. It's not also known instruction, as that term has been, has been interpreted in, for example, the Republic co pays, because it hasn't tended to destroy the ability to eat chips chips in the river. That's a bit of a metaphysical question, because there are chips in this river. But it has been at least not only at our four feet in the district courts at 16 feet wide, and 200 foot wide river and the testimony is on the shallow end. So you will be traveling on one side of it regardless, that is not to need to destroy whatever they will need to raise to go to judge Hagen. Since questions for both Customs and Border Control pass them. There are no further questions. Well,
it would, it would certainly obstruct if navigability can be shown by traffic from Mexico West, the whole point of the structure is to stop that human elicited in our construct,
it would have not asked me and that doesn't tend to destroy the navigability because it's talking about
well, that's assuming that the wall is highway going down. My point is every border with a wall primarily we're talking about commerce between states or between countries, but but factually, the full architecture of this barrier system starts from the 3000 pounds in an acre, then correctly from all then as 40 feet of chain, and then you get to the voting booths. Is that correct?
No, what exactly you are and what do you need to change is largely on the bottom of the river because there was x to allow the buoys to raise theirs. But the most important change only about 18 inches deep into the water, and will push back on the premise that the border traffic is what is primarily the cross between the between the countries. And for that I would point your honor to the 1848 Treaty upon which my friend has realized significantly. And I've come to mind just as typically to Article Six, although we have focused very heavily on Article Seven is litigation that I think are six really tells them what they're talking about in terms of navigation, because at the time, three Gadsden Purchase. There was a necessity for me to be able to travel between different pieces of property has not been belonging to the United States. And our six talks about navigation between those as well along the Colorado river and into the Gulf of California. That is the best way of describing and using it like I tend not crossing from the US into Mexico which actually specifically permitted without the consent of Mexico to remember the questions for next week or may reverse and I'll see you next time.
One court, my name is microcredit half of the United States. The district court did not abuse its discretion. They should have gotten married injunction requiring Texas to move the 1000 foot long barrier in the middle of the Rio Grande. And just as important, as having Texas mobility can be more barriers in the river lawsuits. district court correctly concluded that it's likely to prevail on its claim, the Texas violated the rules of harbors activating that when Texas built out an authorized structure in the Rio Grande, what struck me was inadequate. That's likewise in this flurry, we concluded that the newspaper film during the week, this portion of the department I think it's important at the outset to say that the context of this appeal matters a lot to its resolution. We are going to film here injunction appeal that was conducted on an expedited basis. The court is conducted clear wherever you have factual findings, including navigability, which is a factual question. The district court parties are preparing for trial and developing further record evidence especially on habitability question. We were not entitled, we were not required to prove the power to sound judgment to obtain a preliminary injunction. Now, as far as navigability is concerned, there's significant amounts of navigability here in it comports directly with the case law that we've built. The district court correctly aspect of this area was historical, competitive, navigable based on the evidence of the state of proceedings, most prominent being very cross river very traffic, which is expressly foreign commerce, conducted on the river by floating structures boats, that foreign commerce is sufficient to bring people areas in Congress's power to go grocery fair traveling on the river in Congress can regulate that conduct that commerce, it's clear under the case law, and there's no reason to think it didn't pretend to do so. In addition to that, you also have the expedition's you have the statutes preserving navigability. And we talk a lot about average power. And in that fully supports it here because that much viruses are flexible tests with no set formula that showrunner is different writer with reserving Congress's authority over the potential channels of commerce. That improvements don't need to be completed or authorized. They're the improvements. The Supreme Court found on the court and found were cost prohibitive at the top, the court said The question is whether it's like the cost at the time of improvement would be useful in a justice here, the railroads that come in at electric power making the cost making the improvements not useful. And the New River was very similar with rackets and balls and other obstructions to mean even even more, so you had not hard to navigation yet certainly like here that don't make it halfway up the relevant stretch of it. I said it's building and to the question about border patrol, traffic, your work patrols along the river, you know, basically every day. And that was embarrassing for his lack of commercial traffic to bar or personal credit, Mr. Lutz demonstrates the availability of the stream for the similar types of commercial navigation. So we follow directly says that the river is inevitable in the District Court does not commit any clear error in mining. So based on this, based on the record at the top. There was a question about Brownings really the drownings goes more to harm. The reparable harm when there was evidence here, that the any obstructions in the river, including this obstruction could impair response times at the border patrol support for those rescues on the river. So in from 2018 to 2023, the testimony and Collins declaration is in the record at 1041 was that they conducted 249 rescues, and they were at our best in that period. And the word process by the declaration was that this could impair response times to those rescues.
On the requisition at the beginning about the invasion and the political question doctrine. And I think it's important here to consider two things about that. First, is the is the arguments actually made at this stage in the context of those arguments. All that Texas has argued at this point, is that the constitutional issue should inform this Court's consideration. The statutory issue, the constitutional avoidance is the only thing that they borrow. And if you look at the Nielsen case from the Supreme Court, immigration related case, from a few years ago, Justice Alito opinion, the court says it's not going to consider constitutional questions in that context, where the only argument means that a lot of personal stats or justice here and even their constitutional concerns are offered as just another pillar of an argument for the preferred reading of the language of the statute. And so the question, is the statute ambiguous because constitutional avoidance doesn't come into play, but it's not. And here in the reverse cars, that does not leave us, Texas, it just argued that its conduct ought to be excused from the act, or the facts of its conduct. And fifth yet, so the the entire constitutional issue really isn't presented before the court at this point. It's only whether the Rivers and Harbors act is ambiguous. And as we've described, it's not just the second point I wanted to make on that. Is, is one of the political questions are and is there is no political question that is tied up in our claim, Rivers and Harbors that claim based on a structure is the same no matter what the structure or the context is, the only look at question that could arise in this case is inserted by Texas as a potential defense, which they raise only in the in the context of the preliminary injunction so far, this constitutional issue. And so what the district court said, I think correctly is that you cannot defeat a claim that doesn't present a fluke question by inserting your own political question and then saying it can't be reviewed. That's a defense. And I think that is entirely correct to make a record since it's a political question, doctor, not the political cases awkward. So I think it's it's very important that even that arises in the context of this constitutional avoidance arrangement. So I don't think it's grounds at this point for dismissal, particularly really firmly points of wanting to make Baltimore's
questions. So I wonder what you do with common cause versus region which was a 2019 decision of the Supreme Court and to do, ultimately, political agenda in that case, based on political gerrymandering, but several other issues, including protection, domination, First Amendment Article One, Section Two in the elections was that the Supreme Court said that it's not justiciable, but that is a political question. And so the court said the case was quote, remanded with instructions to dismiss for lack of jurisdiction, and of course, men dismiss the entire case, including the issues that weren't bound up in in the political question.
Right, I think the political question the claims itself are inextricably intertwined with a political question there that the claims are one raised the question was here, as I said, the Rivers and Harbors that claim will be the same no matter who built the structure or what the structure was.
Every every claim has to do with Texas location of this undeniable war. And in the event of hearing an alien invasion, so you can't ignore that it is non justiciable, then the action that Texas has taken standards unmolested, because it can't be reviewed. Even the district court agreed with that? Well,
I think the district court agreed that it can't be reviewed, but certainly didn't agree that that Texas has actions, you know, whether what the district court felt and I think correctly, in line with the California case, the New Jersey case taught by case is including a case from this circuit. Also in loping immigration, is that whether immigration can rise to the level of invasion is a is a question that that the courts competence, but that doesn't mean that the claim cannot be decided. The political question doctrine is not sorted this they can use to unbind itself from all federal law.
Excuse me, you send them federal overcomes the constitutional right of the state.
That's not what I'm saying. I do think the state has to hear when there's no conflict we've talked about there's no conflict between Texas is asserted rights. In the federal statute, Texas is obligated, established establishing conflict obligates her to go ahead and comply with the statute by for example, seeking permission seeking and
assuming that the question of invasion is not justiciable, which I believe to agree with, then. Under what circumstances can the United States for that attempt at self defense?
Well, I think it's a little too open. I think you would, I think, probably wouldn't be although, you know, there's some startling new constitution says, These questions can be reviewed in some circumstances and that a governor panics you don't just rely on the feet of the governor to overcome the
case, that proposition? I mean, personally, I've gotten interested in this until Jeff Smith raised it, but now I'm interested. Certainly, certainly,
I think I think
right. So with a procedural question, or some sort of gastronomic invasion issue, procedurally, hypothetically, if the citizen were to sue the President of the United States because they were injured, bodily or property was injured due to the President's invocation of the commander in chief power, some sort of military action. The DOJ argued that that was far less than that assault for trespass claim was barred by political question. Are you telling me to go to every topic?
I don't know. I think we will certainly have various defenses to that he would probably be, I'm guessing would be one of the questions you clarify there. So finally, DOJ
would ask you to go to the next question. Because I have seen a debate between the both sides of the invasion issue.
There's a lot turnout was 1874. Exchange of correspondence between the Texas governor and the Attorney General in space, you cite pages 13 and 15, of the house markup congressional report. And I think your theory is that these were saw no Mexican actions rather than private Mexican actions. So w fingers take the exact opposite, that these are private actions to which the Mexican government simply didn't help those United States citizens who were hurt.
I don't think we weren't. I don't think we were characterizing that as sovereign or meaning. Sovereign sovereign action, I think it was. It was definitely an armed incursion on the fly. You know, patinas man, who I think as you're saying, with the permission of the Mexican government or acquiescence of Mexico wraps up a very different cracker Raiders.
I think it's the terminal. That's huge Morocco traitors.
Right. And, you know, there's a substantive question that I think you need. Sorry. You know, it's, you know, we explained it. In other cases, do you need some sort of hostile organized force, even though each
direct challenge to so many of these cases talked about? Because they need somebody, for instance?
No, no, I don't think so. I think that was something that Texas raised that we were, we were responding to
you. But there was recognition, as well. Yeah. So,
you know, I don't think we take issue with the fact that there could be circumstances where you have an armed hostile force that might trigger temporary powers in the state. And it's not, you know, once the federal government is responding with the War Powers are dedicated to the federal government, constitution. In the States, they are organized once we say a nation can do anything in law for as long as we want. Like, that's why you get there are some circumstances where the federal
government has exhausted your power and take over the National Guard, activity donors statement that he waits until that happens, the governor has the quote, right. Under
this clause, well, in the United States, you know, they check with the federal government, and the governor said, If you disagree, then then you know, obviously, I'll call this off. So I think the recompressing understanding the president federalizing the government is ultimately wanting control here. And here, you know, they put buoys in river leaves to stick them out. Federal Government's made his position known, of course, on immigration writ large. Lee, you know, there's the cases are uniform that immigration is not the kind of authorization that, you know, the Constitution is talking about
Mr. Granick upon navigability. Yes. You said at the start, of course, both sides are going to present any evidence, any theory going to navigability and trial, which is fast, upcoming, but based just on a PR record, could you answer yes or no, whether the government's defending judge answer is likely navigability on any of the following theories, one that border rivers necessarily involve Congress that navigates across them. I'm not worried here by talking about and why are you defending that as Congress that can support section 1040? Yes, but most of the time I'm interrupt you, because I just want to make sure I can ask him what the IRS you're urging? are you urging that the likelihood of navigability finding is supported also by the fact that Texas erected the bore buoy barrier to stop illicit human and narcotics trafficking across? Is the illicit commerce itself supportive of section four denovo we have not made that have not been used. Okay. Third, are you presently arguing with the district courts observation on page 18 that a government is observed a barge along the side? Are you arguing with that supports at least elected or present? navigability? Yes or no? Yes. Okay. And last? I'm sure the answer's no here, but are you are doing the Rio Grande water itself. The trout on the full length of the highway that we owe by treaty to Mexico, is commerce that the Army Corps has to be taken by dredging the water itself? I
don't think we've argued that the water itself is commerce. I do want to make a comment about the highway language because that that comes up a lot. And I think there's there's a significant risk of anachronism there with highway because we think of a highway is you know, an interstate highway or a major thoroughfare. But, you know, in in that time, these cases were decided highway, General, meaning you leave at 24. Webster's Dictionary really just means a public way. And it could be as small as something like a footpath. But it's something that connects places. And so this cross river ferry traffic that we had significant Cross River, very traffic, so significant that we had rival companies that filed suit against one another and it was important enough lucrative enough that they took it to the Texas Supreme Court. And so there was a highway across the river that he will pass there connecting in with Mexico over which foreign Congress was traveling and that they'll be about that especially the preliminary injunction stage to bring the river within the Rivers and Harbors act definition of NAFTA will.
Unless there are questions about obstruction of living is an obstruction to the river doesn't have to be made in order to qualify the globe. So you are up seating is not a stroke of the vanities and obstruction. No, I'm not conceding anything if you both structure in the river of next, unpermitted and obstructions in that basket, it's both this
complete answer to just raise this question. I don't want to step on the complete answer. In your view, what is the single best piece of evidence that shows this this section? And
I think the best evidence is that it's very attractive, because it's commerce, it's foreign commerce. It's conducted on the river. So it that's it's a customer varies. The test is customary mode, trade or travel, the variance had gone into the ecology by the Greeks, right we didn't get is the one of the most customary modes of trade is to vary across records. And so I think it's where they meet to the test. And that's, that's the best evidence, not the only evidence is best.
In the theory, crosses, theory crosses animal paths to tend to be intact. Now,
it's hard to remember, but it will be mean, the relevant segment, you know, and what's the level of detail? Well, here, the Corps of Engineers to find the segments is roughly things mild to 10 to 16, it's roughly 335 mile segment, but it's basically consists of theories with humans in the house. Fine. No, it's It's the reverse thing. And it's based on on the geographic qualities of the river and whether where there are changes so that that's your power, for example, the court divided into three segments. The second industry was 50 miles or so. But it was based on that or falls down here that or falls up here. And this is sort of its own section, the carrier of the river is basically the same as other waterfalls in reproof. i Well, I think there is, there is one place down the river where there's the you know, this gets into a bit more of evidence, we've developed a full for trial, there's there's one place down the river that, you know, folks that this is a small that is the main instruction, and that's the place we have to we'd have to correct and improve this this area. But there's it's generally, you know, what's
your evidence in various cross at this point?
Well, the toggle case involve the Eagle Pass, very accompany crossing at Eagle Pass. I don't know if it's in Mountain View. That certainly it's in this prevalent stretch of the river where there's an ethical problem develops,
it varies across some annual pass, I'm not going to stop and stretch by 10. Well,
maybe we'll because the relevant question is not, you know, we don't look at tiny little segments in Utah, you know, says this, you look at part of their central characteristics and amicability in the area. So you don't have to say well carry across, you know, exactly here. But Eagle Pass, I think is sufficient to demonstrate
that to look at the exam has exact 1000 feet, if you're talking about not getting up and down. But if you're talking to your whole theory is with the other theories, customer, women want to be 90 degrees across the river, then I'll have some theories for why this wouldn't keep your interest and your past.
No, it makes it a relevant stretch of the road. And well, that's all we have to do have evidence of some other better traffic. And we have evidence of, you know, Congress passing statutes to preserve and build
a better texture very theory. I mean, I don't want to resort to hyperbole, but I could imagine a lot of border streams and creeks, as opposing counsel suggested, where you could have friends just faring in a small role Girl Scout cookies. And that's absolutely absurd. But but what's your limiting principle is fairy commerce is sufficient. And let's take it away from a more reverse situation. Certainly the Army Corps can't go and dredge every creek where there is regular commerce that I
think the border river risks are the key, I think, okay, so you are that I think that, you know, the key here is that it is foreign cars. periodic reports are critical to that. I think that that's critical to that's the
question that we can use. Two questions. Are you presently arguing that the Navajo question was a fact show on one Thus, your lead of that are clear. They're Correct. That's all Mr. Okay. So allow for the possibility of the court for firmly convinced that we wouldn't be sitting 17 strong here on questions. So assuming that volley has not hit the target totally, then even if it is fact down the ladder, there are forces that feel that the fact that our termination may be permeated with legal there, then the soldiers will know this first question is assuming the whole effects, clear error doesn't land that target. What's your best realize that is legal there and generally that there is an art degree that the district courts will lie on a number of precedent that the Supreme Court had abrogate is no longer visible, it's separate. So my point is putting aside a purely bad issue, the argument being courts effective termination, but effective error legally by relying on cases that are no longer life. So I just want to know what your position is on that and beyond the fact.
But I think I do fall in, I think what I would say is that the Supreme Court has not explicitly or implicitly done anything to call into question, their decisions and a common lack of power, or their decision and the Appalachian Power, there's no legal error and rely on the navigability tests that started with Danny ball. And we've developed through the Montello and our loss of power, and autonomy and power. And they may, Texas sort of seems to suggest that maybe it's free for micro deficits and have janitors, you know, but there's they haven't done so and of course, bound by those cases, as well as the district. If you were offered UI response,
the judge wants to sit in.
Good question. And in response to judge wizards sitting pending, I would like that. I'm sorry, but I was I would write that the opinion fails to take into account the clear error or standard on natural ability, and that it does not give sufficient credit to the to the harms as articulated by, you know, our witnesses. Those will be my main objectives that are similar
error, though, because the district court said it wasn't boom. And the government doesn't even argue that so and ignore the witness that talked about that. So isn't that ever?
Oh, no. The government and certainly we argued in the in the argument that this week, there was one witness, you know, hearing just like he didn't think it was that that's true. But our argument was that it was a boon we've argued it was our witness. But that's not some sort of binding transaction. I guess we maintain that it is a move, I mean, a boom is a strong chain, you know, link together to block passage, just exactly what this is. This is chains, you know, links to these floating structures are anchored by concrete designed to block passage if it's explicitly within the definition. But even if it's not, it's, it's still another structure. I mean, it's a structure under the act. So I don't think one witnesses response to one question that, you know, an emergency coherent doctrine you're hearing balance with the federal government. And that question, the
Supreme Court is described, this is an object that crosses the channel of the river and entirely fixed fills it entirely fills it in developing a food company. Yes.
I mean, good. I think the normal definition of a womb is that it blocks passage in some way. But you'd have booms that go out into the river to sort of block blocks from coming down on it. There's all sorts of things they don't necessarily stretch for us, but it's
evolved in the
district courts. And you know, and obviously, in the area, and particularly on this question, I think it's a good question. No, I don't I don't even see it in your report long
and talk to you about news stories about rallies.
That Well, I don't know, I don't know that. We certainly didn't argue for that. I don't know that that affected its legal analysis initially in issuing the preliminary injunction. I you know, I think I will speculate about it.
A quick question about your your fairy scenario and applicability. And the kind of a way to discuss introductory remarks can ferry traffic at the heart of interstate or foreign commerce without to be evidence of the applicability?
I don't think so. Because it's because the ferry traffic is carried out on the water in a customary mode of trade on your hands because
the Supreme Court has repeatedly said that a river is inevitable in this overfitting laws are susceptible to being used as a pioneer of interstate or foreign commerce. And the core has also suggested that fairies do not use rivers catalyst, highways, given 730 traffic crosses the highway that's formed by the navigable river, that ferry traffic is a continuation, not of the river of the highway on one side of the river to the other side of the river. So seems to me no matter whether interstate carry traffic or foreign ferry traffic is part of commerce. If it doesn't use the river as a highway in this paddock described, then it's not evidence of manageability?
Well, I think this again, it goes back to what the discussion a little earlier about highlight, and I don't think it necessarily carries the same thing those days. I think that, you know, cross river for your traffic explicitly, more anonymous for at least, you know, that segment of the river, you know, is establishing a highway for commerce between those two points, even though it's a small, and so I don't think that you can just exclude ferry traffic, you know, altogether. It's clearly commerce. The question is, does the reverse and harbors act running it within Congress's power to regulate our etc, there's no, there's no reason to believe that Congress would not have wanted to prevent obstructions to cross border commerce carried out on the water and the Rivers and Harbors act and any less than to prevent obstructions.
And there have been any cases that have schooling parents that
are not aware of being excluded is considered both by this court in the in the center and also case by the Supreme Court. If that's your power, I guess they could throw a bookcase.
That's a Northern District of Georgia.
So the Northern District of Georgia case the where the river was the Chattahoochee River entirely within the state of Georgia. And so the Cross River great traffic was not engaged in interstate or foreign commerce. But that's the only that's the only case that I know that this counts very attractive completely.
You're not what remap your position on the waterways or metroplex, you send your best segments? Yeah. Yeah, well, I mean, that is, I think that is evidence, I
think the ferry traffic because it was specifically commerce with the best evidence with the border patrol boats, you know, again, the Appalachian Power says, you know, it doesn't matter. It's not commercial traffic, if there's other traffic monitor that shows that there couldn't be commercial traffic and I think border patrol boats, you know, in the in response to Jason's question the the Texas bars, the canoe company, you know, that operating the river these all show that there is sufficient water in the river for you know, the simpler types of Commerce. Thank you moving.
On, thank you, Rama seems to pick up on the standard rupee point again, I want to support page 404 of Appalachian Power. It is in fact a question but never before community network, the standard and ultimate conclusion all questions of law are inseparable from the particular facts to which they are applying. So it's a bit of a murky, factual question. And here there are numerous second legal errors that were that are built into the district court's factual findings. The first is that it relies so heavily on fat cameras exclusively on cross border traffic, and I got to pick up on Judge Willets point on that particular question as long as you have this, this is not the question whether direct traffic is excluded, if the purpose or whether it is irrelevant whether it is sufficient to to act as in order to be a highway, interstate commerce and if there are sufficient Appalachian Power case would have been a lot shorter, because there was scary traffic there too. But in the Senate report was considerable effort to number 14 documented instances where there was downriver traffic. And that's that's the type of language that's used for that ability all the way back to Federalist number two, where our first Chief Justice John Jay, describe the blessings of inevitable waters that tie our nation together with a platform
that gives the procedural platform that isn't doesn't mean different from this thing. Does that make a difference or not?
It does not make a difference for the purposes of what the legal standard what what is that? I don't know. I don't remember off the top of my head, Your Honor. But it just for the purposes of the people who are standard in Prosper traffic headlight itself insufficient, then it would have been not been necessary for the court to move to session length to describe all of the times that we will travel download over time or nation together and justice jpg, Justice JS works in terms of the boundary water, that's not tying the nation together. And that's the that's the violence. And that
show again, so you're saying just call up three states, the safety there between Texas, Louisiana, lots of traffic, the pro worker on the other side, Weezy and Mississippi, you're saying the Army Corps does not have section 10 authority to dredge to continue that interstate commerce?
No, no, no, because there's also download the report
has to be always better there has to be on your theory of sexual tentacle under
Section 10. If that's right, there are for example, in the Clean Water Act, which means additional authority he talks about boundary waters during that study in second, I think it's 33 USC 1317 that I could have had that there's actually specific provision granting power.
Order rivers primarily involve navigation back and forth.
Solely here that it there. For example, Mississippi is the border between a lot of different states and there's traffic all the way down. In fact, there was there are websites that actually allow them to track on real time traffic that goes down in Mississippi that's always on the Rio Grande because there's no traffic that was going down. And going to the question that we had briefly about about what is preventing the traffic jam here to your question that was holed up there are falls in the Rio Grande. In fact, there is a fall right off the rails, which is what has prevented Mirjam attackers above the rail. From time immemorial, the Y or the Z headed over the allegation is that Rama, which is again a river of the rail, going to the question of whether this is impairing our function either with recognition that I will put your monitors to page, one 1002, one in the record, where it's discussing whether it is impeding cross border Border Patrol, all it says is he could not pass. And in this instance, if you're talking about trying to prevent there were a number of questions about our exes offense, you wouldn't at least suspect at some example where it actually has impeded them. To the contrary, a number of other witnesses are looking at ROA for over five or six and are important and one has said it is not going to go in options. And going to the invasion question if that Judge Diaz is now interested in on page by point you are specifically before three of the strong opinion that my friends died, it says because these issues are sometimes revealed. What actually said was an accident, no militarists necessity from any point of view. The review they're talking about is a good faith. What review it unless you can say under no circumstances is this an invasion? The court can't look at it. And our point, your honors to be very helpful article that was from Professor Nielsen cited by a constitutional right from the defense fund amicus brief, which describes why that standard candidate next year is the term invasion was actually used to describe immigration from Connecticut to Pennsylvania in 1775.
was to ask about the border patrol boats. What was the state's response to
the state's response is that border patrol boats on our own cannot exist cannot show commercial manageability because they aren't commerce. That are the are the new cases that was brought up. I remember many cases the cases to which micro segment actually were were political questions, disability cases, and they've had at least one of these so high on this was not an invasion. Actually, it was pre steel, whoa, and assumed the jurisdiction and the way this court couldn't escalate.
And the district court said that the question of whether it was an invasion is not just tissue, you've told us that. Yes, you agree. Yes, rock, whether it's an invasion is not something that we can refer to,
unless they can have the habit of showing us that there was no condition under which it could be considered an invasion and make that happen. I
don't want to know your feedback on the question that we asked was, you said that the doctor box was sufficient? Because of our coverage? It seems to me that's one of the questions whether the most lusail are willing to the client hopes to be able to use in response to bad weather traffic is about the same size or whatever else. So you don't have to show a car show.
The everything in general leaving the road means those that we're talking about. Boats, check every couple of inches in draft modern columns has to be something like several feet, and here we will have only opportunities for the water. And that's not sufficient for commerce. And the existence of these border boats is not at this order the other 18 inches to three feet. That was on page RMA told me there are also some very helpful photographs my 2010 21 to contact my team where you're actually seeing the people who are installing water or the city's walking in the water. I can see they're nice. They're no further there are no further questions in that universe. What we'll take a break from
