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The Federal Government Is Trying To Grab 140 Square Miles Of Private Land In Texas

This article is more than 7 years old.

The federal government is trying to take as much as 140 square miles of deeded land in Texas from ranchers who’ve owned and have paid taxes on the property for generations. This is occurring in north Texas, along Red River on the Texas-Oklahoma border. What made the Bureau of Land Management (BLM) make this claim is unclear (as this is being fought in court, the BLM isn’t answering questions), but the ramifications make last year’s occupation of BLM buildings in Oregon’s Malheur Wildlife Refuge seem like a Boy Scout jamboree.

This fight has been going on for a number of years now in the courts. Seven families are behind the lawsuit trying to stop the BLM from taking their deeded property. Texas Gov. Greg Abbott, and a lot of other Texas politicians, praised the landowners for suing. Texas Attorney General Ken Paxton filed a motion to join the suit, which the court approved. Paxton said, “Washington, D.C., needs to hear, loud and clear, that Texas will not stand for the federal government’s infringement upon Texas land and the property rights of the people who live here.”

If you’re wondering why you haven’t heard about this land war before, it is likely because this story quickly gets more complex than a Spanish corrida de torros.

Before getting into all that, it’s worth putting this in context by looking back at the 1948 classic Western, named not coincidentally, “Red River.” The movie opens with John Wayne looking south from a wagon train to the Red River. He decides there is good grass for beef that way for a man with the grit to take the ground, hold it and turn it into a ranch that’ll help feed a growing nation. He goes south with his partner (Walter Brennan) and is soon joined by a boy muttering madly about an Indian attack on the wagon train (Montgomery Clift plays this character when he becomes an adult). They fight off an Indian attack and, not long thereafter, Wayne outdraws a gunslinger hired by a Spanish rancher to keep settlers off the ranch given to him by the king of Spain. The movie then flashes forward to an older Wayne who has made his ranch, his American dream, with sweat and blood, but after the American Civil War his cattle are worth little in the South, so he must drive his cattle north in a desperate effort to keep his ranch and to feed all the people around him. The government isn’t there to help him. He doesn’t resent this. He knows that he, and the men with him, don’t need handouts, just good, old-fashioned American guts.

At the basis of this fictional plot is a true story about the men and women who settled the land and made it produce, as best they could.

Now many generations later, the ranchers who own and work this land might lose it, not to rustlers, drought or a crater in cattle prices, but to a far-off bureaucracy in Washington, D.C., because, the BLM says, land claims dating back to the Louisiana Purchase give them the power to take land where the river once ran.

Naturally, the shocked landowners responded with a lawsuit. Since then this complex fight has attracted the attention of the Texas governor, congressmen and legal advice from the attorney general of Texas. It also attracted Austin Curry, a founding partner of Caldwell Cassady & Curry. Curry is perhaps best known for getting a jury award of $532.9 million against Apple in Smartflash v. Apple. He is an attorney who specializes in David-and-Goliath battles over property rights (intellectual or physical).

“The dispute on the Red River has been brewing for years,” said Curry. “It’s a significant case, and we’re honored to represent the property owners. Property rights aren’t just about what you own. It’s a matter of personal dignity.”

Curry says the case pivots on a 1923 Supreme Court decision (Oklahoma v. Texas). In that case, the Supreme Court defined the boundary between the state of Texas and the federal property as the “southern gradient boundary” of the Red River and defined that boundary as the “bank at the mean level of the water[.]” That case also requires “[t]he party asserting material changes [to] carry the burden of proving them[.]” This means, it is the burden of the BLM (as the party claiming the land) to carry out a gradient boundary survey, which the BLM has not done.

A gradient survey is pivotal because the land claim here comes down to whether the Red River’s banks changed due to gradual erosion as the river slowly changed course, or whether it was a process called “avulsion,” which is when a river’s banks change suddenly because of a flood or another catastrophic event. When a flood is the cause of the change, the land rights aren’t legally affected. If the BLM wants that land, they’ll have to prove that it was the slow, steady hand of erosion that changed the course of the river since 1803. Good luck with that, as after more than two centuries, surely both have occurred.

The year 1803 is important because that was when the U.S. government paid France for land that became known as the “Louisiana Purchase.” In 1806, President Thomas Jefferson commissioned the “Red River Expedition” to explore parts of the new lands of the Louisiana Purchase by traveling up the Red River. The expedition was stopped by the Spanish near what is now New Boston, Texas.

A decade later, when John Quincy Adams became Secretary of State in 1817, one of his goals was to finally establish the boundaries of the Louisiana Purchase with Spain. He negotiated with the Spanish Minister to the United States, Luis de Onis, and finally concluded the Adams-Onis Treaty. The treaty defined the south bank of the river as the boundary between the U.S. and Spain. That boundary continued to be recognized when Mexico gained its independence from Spain, then again when Texas became independent from Mexico. It remains today as the border between Texas and Oklahoma.

The 1923 Supreme Court decision Oklahoma v. Texas also pointed back to this definition of the boundary along the Red River. It is these age-old boundary definitions that the BLM is trying to use to take as much 90,000 acres of deeded land, property citizens have long paid taxes on. But again, they have to prove it.

When asked why the federal government is pushing this case despite the challenge of having to explain the Red River’s whims, Curry said, “Hard to say. My best guess is they want to set a precedent that will matter with other land-ownership issues across America.”

Instead of leaving deeded land alone, whatever the antiquated claims, the West’s largest landowner, the federal government, for some reason decided to try to take tens of thousands of deeded acres from private landowners in Texas; as a result, this isn’t just a fight for land in Texas, but a fight that will affect the power and audacity of the federal government. (I’ll keep you apprised as this land war is waged in the courts.)