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September 1, 2014

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Texas land dispute echoes Cliven Bundy

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STEVE MARCUS

Supporters of rancher Cliven Bundy attend a “Patriot Party” near Bunkerville Friday, April 18, 2014. The Bundy family organized the party to thank people who supported Cliven Bundy in his dispute with the Bureau of Land Management.

BLM-Bundy Standoff: April 12, 2014

Photos of the April 12, 2014 stand-off between the Bureau of Land Management and supporters of rancher Cliven Bundy near Bunkerville, Nevada. The BLM eventually called off their roundup of Bundy cattle citing safety concerns. Courtesy of Shannon Bushman. Launch slideshow »

A federal agency's planning effort for land along the Red River has ignited a new skirmish in the fight between conservative Texas politicians and Washington.

The uproar follows a high-profile controversy around the Bureau of Land Management's actions in Nevada. The tangle between the bureau and Texas has led to political saber-rattling, including threats of legal action from Attorney General Greg Abbott, the Republican nominee for governor.

The fight is over a 116-mile stretch of land along the river's southern edge, which forms a portion of Texas' border with Oklahoma. The agency, which manages 250 million acres of public land, says the land has belonged to the federal government since the Louisiana Purchase.

The agency has never actively managed the land but is considering ways to do so as it updates its land management plans for the region. The plan, which will be finished sometime in 2018, could call for closing off sections of the land along the Red River, limiting certain activities like grazing to designated areas, or leaving it the way it is.

Critics including Abbott, Gov. Rick Perry and Sen. Ted Cruz say the actions are an attempt to take land from Texas.

"The BLM is now claiming that the federal government has always owned the land in question," Lauren Bean, a spokeswoman for Abbott, said in a written statement. "That is certainly news to the Texans who have possessed, cultivated and reportedly paid taxes on that very land for years."

It's uncertain how many people believe they have claim to land in the area, though Abbott and Rep. Mac Thornberry, whose district encompasses the river banks, say constituents have contacted them over concerns about what they see as a potential land grab.

On the surface, the issue echoes the controversy in Nevada, where rancher Cliven Bundy is fighting the agency over grazing rights on public land. Democrats have pounded Abbott and Perry for siding with Bundy, whose racially insensitive comments drew national attention. But underneath the political buzz of Bundy's standoff with the feds, the two situations have little in common.

Bean said the federal agency has been inconsistent in its claims on the land, citing a 1994 report from the bureau that is unclear about who owns the 90,000 acres in question.

But the bureau is adamant that the land has always been under its jurisdiction.

"The BLM is not asserting federal ownership over any lands not in the public domain," said Celia Boddington, a spokeswoman for the agency in Washington. "The United States acquired these lands in 1803, and public ownership was confirmed by the U.S. Supreme Court in the 1920s."

Abbott fired off a letter last week questioning the bureau's intentions for the land. He also threatened legal action over any attempt by the BLM to control the land, which lies in Wichita and portions of Wilbarger and Clay counties.

Prospects for a legal challenge from the state are unclear.

Melinda Taylor, a University of Texas at Austin law professor and public land expert, said any legal action would probably have to come from individuals who feel they have claims to property the BLM considers federal land, not from Texas suing the federal government.

"Those cases are so interesting, because here we are 300 years after the nation was established, and there are still these cases that come up from time to time where you really have to trace back through the title documents," she said, noting that the state of Texas itself may not have much legal ground to stand on.

The controversy hinges on the area's murky boundaries. The state line between Oklahoma and Texas is pegged to the middle of the Red River through the 1920s Supreme Court decision. Go north of an imaginary line dividing the river down the middle, called the medial line, and you're in Oklahoma. Head to the small cliffs to the south that the river has carved out, called cut banks, and you're in Texas. Anywhere in between is federal land.

The problem is, rivers change course. Under the court's decision, changes that take place over time, called accretion, also shift the state line between Texas and Oklahoma. More sudden changes, called avulsion, don't. That's created uncertainty as to who owns what.

Court decisions have upheld the federal claim on the land. Texan Tommy Henderson, who was involved in a 1986 case over land rights between ranchers from both states, had paid $300,000 for 140 acres, but a court ruled it actually belonged to the government.

Paul McGuire, a spokesman for the land bureau's Oklahoma field office, said the agency needs to make sure it's managing the land it holds in the area. He said the land has been acknowledged in past land use plans, which are generally drawn up every 15 to 20 years, but never actively managed.

McGuire said that the bureau has received complaints from landowners about illegal activities — littering, trespassing, even meth production — and needs to figure out how best to address the area.

The agency "would contend that since this is public domain land, that's our responsibility," he said. "That's part of what's underlying this whole effort."

The planning process started in July last year. A number of public meetings were staged over a 90-day period in Texas and Oklahoma, McGuire said. The bureau will publish the results of these meetings and other remarks from concerned parties in an upcoming report, he said.

The bureau could take a number of actions with the land, McGuire said, such as closing sections of it off, leaving it alone or allowing certain activities in designated areas.

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