This commentary originally appeared in the Freestone County Times on May 14, 2014.
News that the Bureau of Land Management is revising a 263 million acre Resource Management Plan that incorporates private, state, and federal land across Texas, Oklahoma, and Kansas has alarmed citizens due to both the massive scope of land that would be subject to revised regulations and the highly discretionary factors used to justify the rules like “environmental justice,” protection of sensitive resources, and regard for cultural resources. BLM official Stephen Tryon has been dismissive of the concerns calling the Management Plan simply a routine 10 to 20 year “refresher.” Texans are especially worried about 90,000 acres along the Red River, most now held as deeded private property, that has been included in this refreshment of BLM oversight.
This land along Big Red, the river that has served as the border between Oklahoma and Texas since an 1819 treaty with Spain, has been the subject of many state and private disputes as the river banks shifted and sand has been re-deposited. As courts noted along the way, the boundary was subject to the vicissitudes of nature’s “doctrines of erosion, accretion, and avulsion.”
The state governments of Texas and Oklahoma settled the jurisdictional border controversy in 2000, reserving “any tribal trust lands,” by recording an interstate compact with congressional authorization. The Red River Compact established the border for government purposes as the “vegetation line on the south bank” of the river.
Now the BLM may be using the court controversies of almost a century that grappled with boundary and border ambiguities and estimated alluvial action (river deposits of sand) to suggest that federal trust lands from half of the riverbed are now identifiable as riverside acreage along 116 miles of the Red River.
Court cases in 1983 (James v. Langford, 10th Circuit) and 1984 (Currington v. Henderson, Oklahoma district court) settled private claims after accounting for notable movement of the river due to large floods, high water lines, and new active channels. These courts relied on a 1923 U.S. Supreme Court boundary definition when deciding that a new riverbed created by avulsion (shifting to new channel) would not cause the boundary to move but it would “remain along what was the south bank.”
It was the 1984 case where an Oklahoma federal district court resolved a dispute between the Langfords (again), the Curringtons, and the Hendersons that a judge deducted 140 acres of Henderson’s land as federal in trust “for certain Indian Tribes.” The judge described this portion as the riverbed between the medial line and the Texas bank: “the imaginary line running lengthwise along the length of the river equidistant” from the banks. Yet this federal riverbed land appeared on a map attached to the 1984 court ruling as a large swath of dry land after almost a century of moving riverbanks and soil deposits.
The BLM may press the question of whether the 140-acre court designation means that there is more land to claim and is asking whether there was ever authority to issue deeds for the Red River frontage that has long been held as private land.
Although BLM spokesman Tryon claims that the BLM is not interested expanding its presence by gaining ownership of land that belongs to private parties, BLM official Paul McGuire has been quoted as evaluating court determinations to mean that the “lands were at no time in private ownership” and then indicated that a new survey would settle the confusion.
Texas is promising to fight any further conversions of private Texas property like Tommy Henderson’s to BLM control. Citizens are increasingly wary of heavy-handed government land management and justifiably alarmed when the federal government is poised to claim private property. If the government pursues this to the point of court action, adjudication of this contest must include recognition of reliance doctrines in American jurisprudence that respect property interests backed by long chains of deeded property.
The BLM is already making its case for federal control of the Red River borderland, implying that enforcement is needed where “spots are vulnerable to folks burning tires, cooking meth and littering.” In other words, if this land is federalized, don’t count on much public access.
Karen Lugo is Director of the Center for Tenth Amendment Action at the Texas Public Policy Foundation, a non-profit, free-market research institute based in Austin.