Texas Gov. Greg Abbott (R) and other Republicans in Texas are calling on the Obama administration’s Bureau of Land Management (BLM) to clarify its intentions regarding property ownership along the Red River and to cease actions Abbot says are nothing short of a “land grab.”
“I write for a third time to ask that you cease and desist this federal land grab,” wrote Abbott in an October 16 letter to BLM.
When BLM began updating its Resource Management Plan in 2013 for its federal holdings in Kansas, Oklahoma, and Texas, Texas landowners were shocked to find BLM claimed to own up to 90,000 acres across a 116-mile stretch of the Red River. Texas landowners believe the Red River lands belong to them.
Supreme Court Settled Boundaries
The Red River, which separates Oklahoma and Texas, played a central role in a pair of early twentieth century U.S. Supreme Court (SCOTUS) decisions that defined the boundary between the two states. SCOTUS determined Oklahoma has ownership of land north of the river’s medial line and Texas owns the land from the lower cut bank—the outer cliff surrounding the river—southward. SCOTUS ruled the area between the south cut bank and the river’s medial line belongs to the federal government.
Texas landowners recently found out BLM is now claiming to own much of their property, and although the agency recently revised the 90,000-acre estimate down to 30,000 acres, it has done little to ease concerns among landowners.
Abbott has written to BLM three times to ask the agency to explain the basis of its claim to Texans’ land. In an August 2014 letter to BLM Director Neil Kornze, Abbott cited landowner Pat Canan, whose land can be traced back to an 1858 deed. Canan, who testified before the U.S. House Subcommittee on Public Lands and Environmental Regulation in July 2014, told lawmakers BLM placed a survey marker on his property 1.7 miles below the south bank of the river. Another rancher, Ken Aderholt, says BLM is threatening to claim half of his 1,250-acre property.
The river has moved over time, and in some places the water is now a mile or two north of its 1923 location, says Rob Henneke, director of the Center for the American Future at the Texas Public Policy Foundation.
“The Supreme Court also recognized in its 1921 and 1923 opinions [the Red River] is a moving boundary [and] a boundary that’s continually changing, which is why the Supreme Court defined it as it did, as the gradient boundary of the south cut bank, so that this could always be determined in the future,” Henneke said.
Henneke says the BLM is taking an expanded view of its holdings.
“Their position is that the erosion of the Red River has expanded that thin strip of sand to where now they claim as public lands … all of the private land inside Texas in between the 1923 gradient boundary and where the river is today,” said Henneke.
Henneke points out uncertainty in title ownership poses problems for those who may want to sell, lease, or refinance their land or make estate planning decisions. That affected landowners have been paying taxes on the land for years is an issue then-Attorney General Abbott raised when he wrote to BLM in August 2014.
“[Texans] have owned and paid taxes on this land for generations,” said Abbott, who also called it “inconceivable” BLM would claim ownership.
Henneke says BLM’s decision is “incredibly abusive.”
“You’ve got private landowners up there that have had this land for generations that use it for farming and ranching and hunting and has been passed from parents to children, and now the BLM’s position is it’s not even a taking where the landowners would be entitled to compensation under the Fifth Amendment to the Constitution,” said Henneke.
Henneke says BLM’s position is the land always belonged to the federal government, despite the fact it never claimed the land in the past.
Some federal legislators are working to advance legislation that would provide landowners with some certainty.
In the House, Rep. Mac Thornberry (R-TX) is sponsoring the Red River Private Property Protection Act, which calls for a survey to define the boundary between public and private lands using the method established by the Supreme Court. It would then allow landowners to make claims for contested land under a modified color of title action. Once ownership is settled, BLM would have to dispose of any remaining land, with adjacent landowners given the right of first refusal.
The bill passed the Natural Resources Committee in September, and Thornberry says he will continue to push for passage.
“Private property rights are fundamental to the American way of life and to many people’s livelihoods, especially farmers and ranchers,” said Thornberry. “This bill seeks to protect those rights and reflects the input we’ve received by listening to landowners, the Texas General Land Office, and many others. I will continue to do everything I can to get the bill passed so these property owners no longer have to worry that the federal government will come take away their land.”
Sen. John Cornyn (R-TX) has sponsored similar legislation in the Senate.
Ann N. Purvis, J.D. ([email protected]) writes from Dallas, Texas.