This commentary originally appeared in the Washington Examiner on December 17, 2015.
Since 2008, the Bureau of Land Management has claimed up to 90,000 acres of private property inside Texas along the Red River as federal land. For nearly seven years, affected property owners along the river tried to settle these disputed titles with BLM. And for nearly seven years (and counting), BLM failed to come to the table.
Last month, those property owners — represented by the Texas Public Policy Foundation's Center for the American Future — filed the federal lawsuit of Aderholt v. BLM to end BLM's arbitrary seizure of their homes. In the past two weeks, the state of Texas and the Texas General Land Office have joined this lawsuit.
In response to this lawsuit, the resulting opposition and a growing barrage of bad press, BLM released statements claiming the lawsuit is premature but that "BLM remains committed to working with adjacent landowners, counties and other stakeholders through our ongoing planning process to properly identify the extent of federal holdings in the Red River."
Really? BLM has been making the same promises since 2008 — all the while grabbing more property and stonewalling anyone who dissents. Those empty promises have done nothing to help countless property owners who now have a cloud on their title.
Under existing law, BLM owns the sandy riverbed of the Red River north of Texas. Texas' boundary is the vegetation line of the south back, and the land south of the riverbank is private property. In 2008, BLM hammered permanent metal stakes into the ground where it claims the bank of the river is located. BLM published a map of its territory overlapping the private property along this area. Yet, when these owners reached out to BLM, it claimed that it hadn't taken any action yet, but would be glad to work with them to "properly identify the extent of federal holdings in the Red River."
BLM's version of working with the property owners turned out to be nothing more than holding a few public meetings to ask for their input in determining how the newly seized property would be managed as public lands. The property owners attended and asked a BLM representative how BLM could manage land that it did not own. BLM's response made its position on the matter perfectly clear: It was going forward with the management plan anyway, and if you don't like it, "You'll have to talk to a lawyer."
Now that these families are fighting for their rights in federal court, BLM claims these property owners are jumping the gun because no record of decision has been entered on BLM's plan to manage the disputed property. A lawsuit will have to wait until after a final decision issues about how to use the property, sometime in 2018. In the meantime, "BLM remains committed to working with adjacent landowners. … etc, etc."
This is nonsense. To assert that this lawsuit is premature not only shows a callous disregard for families whose homesteads have been in legal limbo for the better part of a decade. It is also wrong as a matter of law.
In Calhoun County, Tex. v. United States, the Fifth Circuit held that a title dispute with the United States government was ripe as soon as the government recorded its claim to the disputed property in the Federal Register. BLM has done that and more.
BLM also can't avoid a judicial resolution by falling back on its same old broken promises. As the Supreme Court explained in Sackette v. EPA, "the mere possibility that an agency might reconsider in light of informal discussion … does not suffice to make an otherwise final agency action nonfinal."
Each day the government stalls is another day that property owners along the Red River can't build, can't sell, can't farm, and can't sleep because the title to their homes is in dispute. The residents of Texas, and the citizens of the United States, deserve better than that.
These landowners have been trying for seven years to get BLM to respond to their claims. They've gotten no meaningful answer. Now that a lawsuit is on file, BLM publishes press releases expressing its commitment "to working with adjacent landowners." Hogwash. All that BLM's public statements signify is contempt for the situation it has put these families into by forcing them into a lawsuit to defend their homes.
Chance Weldon is an attorney with the Center for the American Future at the Texas Public Policy Foundation.