February 23, 2017
The Honorable Neil Kornze
Director, Bureau of Land Management
U.S. Department of the Interior
1849 C Street NW, Rm. 5665
Washington, DC 20240
Dear Director Kornze:
Private property rights are the cornerstone of any free society. This principle was highly valued by the Founding Fathers, who understood the necessity of private property when they designed our unique system of self-governance. Thomas Jefferson, for instance, wrote in his 1816 letter to Samuel Kervheval, that “[t]he true foundation of republican government is the equal right of every citizen in his person and property and in their management.” Indeed, that principle was enshrined in the Fifth Amendment to the United States Constitution, which provides, in part, that no person shall “be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
More than anything, private property must be protected from arbitrary seizure by government, which is why the attempt by the Bureau of Land Management (BLM) to claim up to 90,000 privately owned acres of land in Texas as public lands under federal control is cause for real alarm. In a March 17, 2014 letter from BLM Field Manager Stephen Tryon to Texas Congressman Mac Thornberry, Tryon indicated that the BLM might eventually attempt to “ascertain the boundary” between federal land in Oklahoma and privately owned land in Texas. Mr. Tryon acknowledged in the letter that the process could “create cloud [on Texas property owners’] private property title.” Historically, the boundary between federal public lands and private Texas lands was the southern bank of the Red River. However, the BLM has now hammered permanent metal stakes into the ground where it claims the bank of the river is located – in some cases about a mile south of the physical riverbank, deep into land previously uncontested as being under private ownership – and published a map of its territory overlapping the private property along this area. The BLM claims that there has been no final decision about the use of the property, anticipated in 2018. In the meantime property owners along the Red River are unable to make full use of or transfer their land, as the title to their homes is in dispute.
In November 2015, affected property owners and officials from the three affected counties – Wichita, Clay, and Wilbarger – filed suit, alleging that the BLM has violated the constitutional rights of Texas landowners with property along the river by asserting that federal land boundaries extend almost a mile past the actual edge of the riverbed along a 116-mile stretch of the Red River. The case is styled Aderholt et al. v. Bureau of Land Management et al., case number 7:15-cv-00162. In March 2016, U.S. District Judge Reed O’Connor allowed the State of Texas to intervene, finding that not only did the state have distinct interests from the plaintiffs in the suit, but that the state would have been impaired in its ability to protect its interests if it was not allowed to intervene.
Legally, there should be no dispute regarding the state border, or private property on the Texas side of the Red River, as it has already been resolved by centuries old treaties, U.S. Supreme Court rulings, interstate compacts, and Acts of Congress. The Red River was formalized in an 1819 treaty as the boundary between the Spanish Empire and the United States, with the Republic of Texas and U.S. reaffirming this boundary in an 1838 treaty. In 1923, the United States Supreme Court ruled that the Texas-Oklahoma border fell on the gradient line of the south bank of the Red River, though that line can move due to accretion and avulsion. The federal government owns the territory from the centerline of the river to the “gradient boundary” on the south bank — an imaginary line that shows where the river would touch the top of the bank without overflowing it. Since that ruling, Texas and Oklahoma entered an interstate boundary compact, agreeing that the state border falls on the vegetation line on the south bank of the Red River. That agreement was ratified by the U.S. Congress in 2000, leaving no room for further interpretation.
Texas is unique in that it is the only state—other than the 13 original colonies—to enter the Union without handing control of public lands over to the federal government. Obama-era BLM officials claim that what they were actually trying to do is belatedly protect the property rights of the Kiowa, Comanche, and Apache tribes, none of which were asserting claims to the land. Much of the land at issue here is now privately owned, making the stakes of this dispute even higher. For example, the BLM now claims as public land the family home of Ken Aderholt, which his grandfather built in 1941; and claims roughly 1,400 of the 2,000 acres that Clay County property owner Pat Canan and his family have owned and paid taxes on since 1963. Some affected owners have titles and deeds dating back to the 1800’s. In some cases, the BLM’s claimed line lies in old-growth forest (thus well past the line of vegetation) lying nearly a mile from the riverbank.
The property rights of all U.S. citizens should be respected by government, and Texans’ property rights are clearly at stake. With a new administration in Washington, the BLM now has an opportunity to reverse its claims to the private lands of Texas residents, and to reaffirm the historic boundary between federal and state controlled lands at the vegetation line on the south bank of the Red River. In all instances where the geographic and historical record are unclear, the BLM must err on the side of protecting the established property rights of the private citizens who live on, make constructive use of, and pay taxes on the land, who in many cases have done so for generations.
Thank you for your prompt attention to this request.