Ken Aderholt holds the deed to 700 acres of land near the Red River, on the border between Texas and Oklahoma. The plot has been in his family since 1941, and he has paid all of his taxes on it. “It has been running through generations and handed on down to me,” he said late last year. But three years ago, that lineage was threatened by a familiar culprit: the Bureau of Land Management (BLM).
The BLM is the Department of Interior agency in charge of administering the nation’s 247 million acres of publicly owned land. Every ten to 15 years, the bureau creates a resource-management plan, which outlines its goals and directives for the lands under its control. And in July 2013, the BLM entered the early stages of its January 2018 plan by notifying the public of 90,000 acres along the Red River that it deems to be federal land, much of which is owned by Texas ranchers such as Aderholt.
Last year, the Aderholts and six other families whose land is threatened, backed by the Texas Public Policy Foundation and the law firm Caldwell Cassady & Curry, filed a lawsuit against the BLM. “My clients simply want to own the land they own without being under the cloud of the government’s claims,” Austin Curry, a founding partner at Caldwell Cassady & Curry tells National Review. “The case has had a very real impact on real people.”
At issue in the case is the meaning of a 1923 Supreme Court decision, Oklahoma v. Texas, which concerned a dispute between the two states and the federal government over ownership of the Red River riverbed. Curry and the plaintiffs’ counsel argue that Oklahoma v. Texas clearly defines what land belongs to the BLM, Oklahoma, and Texas: Oklahoma controls land north of the river’s medial line (the line designating the river’s middle point), Texas controls land below the south bank, and the BLM controls the sliver of land between the medial line and the south bank. The thousands of acres the BLM is now claiming as its own were, in 1923, still part of the river. But in the 90 years since, the river has receded and the disputed acres have become grassland. Legally, the question is whether that change was caused by a sudden avulsion (when a riverbank is altered in a catastrophic event) or a more gradual erosion or accretion. If the changed landscape resulted from avulsion, the boundaries established in 1923 remain in effect, and the land belongs to the BLM. If avulsion cannot be proven, it must be assumed that erosion or accretion was the cause of the shift, and the land belongs to the plaintiffs.
Assuming avulsion can be proven, the BLM’s legal case is that “while everyone else’s boundary followed the Red River through the gradual erosion of the riverbank, that with the 1923 case, their [the BLM’s] boundary remained fixed,” Robert Henneke, director of the Texas Public Policy Foundation’s Center for the American Future, said. The BLM declined to comment on the ongoing litigation, but pointed to a letter written in 2014 by BLM director Neil Kornze explaining the bureau’s legal justification. Citing Oklahoma v. Texas and Congress’s consent to a 2000 compact establishing the jurisdictional and political border between Texas and Oklahoma as the river’s vegetation line, the letter argues that a shift in the river’s boundary may cause federal land to fall within the current boundary of Texas.
But the Congressional Compact explicitly states that titles to private or public land would not be affected by such a shift. Which means the case hinges on Oklahoma v. Texas’s boundaries, and the question of the river’s accretion, avulsion, and erosion remains. One federal district court ruling in particular supports the BLM’s case. In the early 1980s, an Oklahoma federal district judge ruled that avulsion occurred in the 1940s, fixing part of the legal boundary. But the judge in that case ruled based on eyewitness testimony rather than a gradient survey, meaning the plaintiffs have a good argument that his decision was dubious.
Why is the BLM so insistent on claiming these 90,000 acres?
Texas politicians remain publicly opposed to the BLM’s actions. Governor Greg Abbott applauded the plaintiffs’ lawsuit, stating that “Texas will not stand for the federal government’s infringement upon Texas land and the property rights of the people who live here.” Texas attorney general Ken Paxton didn’t just praise the plaintiffs; he joined the lawsuit, which in turn provided them with an abundance of legal resources. And, federally, 22 members of Texas’s congressional delegation filed an amicus brief last March, alleging that the BLM had “exceeded its authority under the law.”
As the BLM proceeds to survey private property, and the rights of these property owners are threatened, it is essential to ask: Why is the BLM so insistent on claiming these 90,000 acres? So far, no one knows the answer to that question. The BLM’s resource-management plan has multiple stages that “allow for public input, analysis, and informed decision-making.” If the BLM truly values the public’s input, it would halt this land grab immediately.