By Lou Ann Anderson | Watchdog Arena
When it comes to the federal government’s claim that private property along the Red River historically within the Texas border is federal land, a lawsuit filed on behalf of land owners and their respective counties once again reinforces the state’s long-standing “Don’t mess with Texas” mantra.
During a Tuesday conference call, Robert Henneke, director of the Texas Public Policy Foundation’s Center for the American Future, discussed the lawsuit filed on behalf of seven individual landowners as well as Clay, Wichita and Wilbarger Counties, and the Clay County sheriff. The suit was filed against the Bureau of Land Management and the Department of Interior, as well as BLM Director Neil Kornze and Secretary of the Interior Sally Jewell both in their individual capacities.
Per Henneke, the lawsuit’s purpose is to defend the private property rights of Texans along the Red River against the federal government’s claim that this land is federal territory.
The suit seeks a declaratory judgment from the Wichita Falls federal district court that ‘quiets’ or establishes correct title to the disputed private property along a 116-mile stretch of the Red River in Wilbarger, Wichita and Clay Counties. Additionally sought is a judicial determination affirming that BLM territory does not extend into Texas as claimed by the federal government.
Henneke described the dispute’s long history and how, based on precedent dating back to Louisiana Purchase and subsequent agreements, Texas statehood brought its boundary established as the south bank of the Red River. Because Oklahoma’s statehood, however, came at a time when the Red River was determined unnavigable, state title was only extended to the river’s middle line.
With Texas stopping at the Red River’s south bank, and Oklahoma extending only to the river’s midpoint, the southern half of the riverbank was left as unappropriated federal territory. Border tensions only increased as decades of constant erosion have created an ever-changing path for the Red River.
“Texas and Oklahoma entered into litigation in the 1920s to determine where their boundaries were,” stated Henneke. “Not knowing caused issues with law enforcement jurisdictions as well as the states’ assertion of its sovereignty.”
A 1923 Supreme Court ruling defined the boundary of Texas as the gradient boundary or south cut bank of the Red River. The Court determined the gradient boundary as “[the] bank at the mean level of the water, when it washes the bank without overflowing it… subject to the right application of the doctrines of erosion and accretion and of avulsion to any intervening changes.”
Realizing the boundaries’ ongoing evolution due to the river’s transitory nature, the Court also recognized the thin strip of sand between the two states.
In the event of erosion or accretion (small and gradual changes in the riverbank over time), the Court held that the boundary between the states was to follow the river. However, in the event that an avulsion occurred, natural or otherwise, the boundary was to be fixed at the original 1819 boundary line, or as near to that line as could be ascertained.
For years, property along the disputed stretch was treated as the private property of lawsuit clients, Henneke said.
“They’ve continued to pay taxes on it, ranched it, farmed it,” he said, noting no outside property claims. It was simply recognized as private property belonging to individuals within the state of Texas.
Controversy surfaced in 2008 when the BLM–for no publically known reason–made its own determination and claimed up to 90,000 acres inside of Texas along the Red River as federal territory.
“Essentially through misinterpreting the Supreme Court case of 1923, BLM’s position is that while everyone else’s boundary followed the Red River through the gradual erosion of the riverbank, that with the 1923 case, their boundary remained fixed,” Henneke explained.
“And as the Red River eroded north, BLM now claims that just merely expanded what has always been considered the thin strip of property between Texas and Oklahoma,” he said.
The lawsuit addresses the legitimacy of BLM’s claim to additional territory inside of Texas based on riverbank erosion.
“So, we have filed a lawsuit to stop that,” Henneke said. “What’s additionally abusive to BLM’s claim that this private property belongs to the federal government is their refusal to survey it or to even justify the basis with which they claim this land.”
Henneke outlined the specific complaints of the individual landowners, the counties and the sheriff’s department.
“On behalf of the individual landowners that our Center for the American Future represents, we’ve filed suit to quiet the title to determine that their private property belongs to them, but we’ve also asserted the constitutional harms that have been caused to them by this unspecified federal government claim of private property rights,” Henneke said.
“Specifically, we’ve also asserted a Fifth Amendment due process complaint against the government from the lack of being able to determine where the federal property is and where potentially our clients could have criminal penalties for engaging in prohibited acts on federal property,” he continued.
“We’ve also asserted a Fourth Amendment taking claim against the government for the claim to own our clients’ private property and how that’s impacted their ability to lease their land, refinance their land, exclude individuals from their land.”
The perspective of the county governments (Wilbarger, Wichita and Clay) relates to infringement upon their sovereignty caused by BLM’s claim of federal territory inside their counties.
“The territory hasn’t been defined and as a result, the county government’s are at a loss as to what areas in their jurisdictions are taxable or not taxable, what areas within their jurisdiction they are able to lawfully provide the health, safety and welfare services that they are required to do so under the statutes and Constitution of Texas,” Henneke noted.
The Clay County sheriff as a party in his official capacity is based on the BLM’s interference with his ability to enforce certain criminal offenses requiring determination of private property ownership. For example, Henneke offered, shooting a white-tailed deer on someone’s private property without consent is a state felony offense, yet determining private property boundaries is impossible while the BLM continues its ownership claim of up to 90,000 unidentified acres inside Texas.
Henneke characterizes a successful outcome as having “the federal district court in Wichita Falls affirmatively determine and affirm that the BLM federal government territory does not extend into Texas.”
While this past summer brought resolution to a long-standing case between one Clay County resident and the BLM, Henneke isn’t optimistic.
“We’d be very excited to have a dialogue with the government to resolve this, he said. “So far our clients and us have been stonewalled and not had any progress in doing so.”
“The case law and the precedent is clear that BLM’s territory is only within the existing south bank of the Red River, but we would certainly welcome the opportunity to sit down with the government’s representatives and work out the correct and fair resolution to this suit.”
In September, a bill sponsored by U.S. Rep. Mac Thornberry, R-TX, that seeks to commission a new property survey to settle federal ownership claims to land along the Red River was voted out of committee. Henneke expressed support for the effort yet noted “the devil in the details would be where the survey and what methods through which the survey was conducted.”
The government will have 60 days from the lawsuit’s service to respond. With that, a mid-January response is likely.
“These are great folks along the Red River just working hard to provide for their families,” Henneke said of lawsuit complainants.
“We’re just standing up for them to do what’s right and to help them in defending their homes. This situation is unfortunate, but at the end of the day we’re looking for the court to affirm that the private property that our clients have lived on and paid taxes on, and farmed and ranched and raised their families on for generations does in fact belong to them.”
This article was written by a contributor of Watchdog Arena, Franklin Center’s network of writers, bloggers, and citizen journalists.