By Bill Hanna
ELECTRA — Inside his local bank, Terry McAlister pulls the tattered documents out of the safe-deposit box.
The abstract of title, which includes pages that have been affixed to newer pieces of paper to keep them from fraying, dates to 1899.
McAlister points to parts of his Wichita County property along the Red River. To the untrained eye, his land appears to stretch anywhere from a half-mile to a mile away from the river.
But the boundary between Oklahoma and Texas has never been that clear-cut.
“There’s 1,000 acres of land down there that we have under fence,” McAlister said. “That was under fence when we bought down there in 1980. We’ve kept it under fence all that time. We’ve paid taxes on it. And they’re saying, ‘We’re going to take that.’ ”
He is referring to the Bureau of Land Management.
The federal agency is updating its resource management plan and has said up to 90,000 acres thought to be in Wilbarger, Wichita and Clay counties may be in Oklahoma, which would make it public land. Never mind that some farmers and ranchers, like McAlister, have records showing ownership for a century or longer.
The resource management plan deals with a 116-mile stretch of the Red River, which covers those three counties.
“Everybody is trying to slow the BLM down or stop them,” Clay County Judge Kenneth Liggett said. “We’ve got deeds in this county that go back to the 1860s, and these people have been paying taxes for generations. And now they’re going to come in and say it isn’t their property? That just isn’t right.”
The latest dispute with the Bureau of Land Management comes on the heels of the Nevada controversy involving rancher Cliven Bundy.
Bundy drew national attention for fighting with the bureau over grazing rights on public land. After Bundy made racially insensitive comments about slavery, Texas Democrats blasted Attorney General Greg Abbott for staying silent as many other conservatives backed away from their support of Bundy.
Despite the heated political rhetoric in both conflicts, the circumstances are different.
The bureau insists that it isn’t trying to claim land that belongs to somebody else.
“As to BLM’s claim on public domain land along the Red River, it does not exceed that which was defined by the Supreme Court,” agency spokesman Paul McGuire said. “In other words, BLM has no claim to any adjacent private property. Now, the precise delineation between public and private land is partially unknown at this time.”
The 1923 Supreme Court ruling said that “the boundary should be located along the southerly of the two water-worn banks designated as the ‘cut banks,’ which separate almost uniformly the sand bed of the river from land in its valley.”
Land between the state boundary and the medial line of the river belongs to the Kiowa, Comanche and Apache tribes, with the bureau acting as the conservator.
In 2000, the Red River compact established the vegetation line as the boundary between the states.
“When we got finished with the compact, we thought we had settled it once and for all,” Clay County rancher Tommy Henderson said. “We thought the vegetation line was something that everyone could clearly understand. Now it may not be exactly where the gradient bank is located, but it’s always going to be pretty close.”
One of the challenges along the border, Henderson said, had been determining which state had jurisdiction in criminal cases. When a case went to trial, the vegetation line was easy for jurors to comprehend.
Big Stakes for Texas
But Henderson, who lost 140 acres to Oklahoma in a 1985 court case, said property owners should prepare for a lengthy court battle. He couldn’t afford to appeal an Oklahoma judge’s ruling and said individual property owners will have a difficult time mounting a costly legal battle.
“They can’t win against the BLM unless the state of Texas gets involved the case,” Henderson said.
Whether Texas would have standing is subject to debate.
“If I were the attorney general, I would certainly want to depose BLM officials about why they were taking such aggressive interpretation of the interstate compact,” former U.S. Attorney Richard Roper said.
The attorney general should have a say because the bureau’s actions will directly affect the state, Roper said.
“He could come in on behalf of the state of Texas if the BLM is essentially trying to rewrite the boundaries of Texas,” Roper said.
Austin attorney Luke Ellis isn’t as confident that Texas could stop the agency in court.
“I know there’s been a fair amount of political rhetoric, but in my opinion, the state wouldn’t have any standing to do that,” Ellis said. “In my opinion, the individual landowners would have standing to a takings claim.”
Ellis recently represented a Wichita County landowner in a case along the Red River where Oncor Electric Delivery was placing a high-voltage power line across his client’s property. One of the questions was dealing with acreage that can increase or decrease depending on the whims of the Red River.
“One of the big issues was determining how much land does the landowner own and its value,” Ellis said. The case was eventually settled.
‘Hire a Lawyer’
Those kinds of challenges would certainly come into play in a battle with the bureau.
“I would tell folks to be patient, but if it appears the federal government is going forward to assert claims, I would tell folks they need to hire a lawyer,” Ellis said.
If the agency moves forward with its assertion that this has always been public land, Ellis said, title searches would probably have to be conducted all the way back to the Louisiana Purchase in 1803.
Landowners would be wise to pool resources for a costly legal battle, some suggest.
“You’ve got to win on two fronts,” Ellis said. “On a takings claim, you’ve got to prove an ownership right to this property. And if you win on that front, you’ve got to prove what are your damages.”
On Henderson’s property, the line between Texas and Oklahoma is almost imperceptible.
While zipping across pastureland on an all-terrain vehicle, Henderson pulls up to a fence line and suddenly pronounces: “Now you’ve reached Oklahoma.”
Upon closer inspection, a marker along a fence line states it is public land.
Henderson, who couldn’t afford to appeal his lawsuit in the 1980s, feels a responsibility to educate other property owners. He doesn’t believe he will lose land in this battle, but he’s worried that many of his neighbors could.
“It feels like I owe them something,” he said. “Is everybody going to suffer because at the time I was broke and couldn’t afford to fight it?”
Texas landowners remain hopeful that elected officials will keep up the pressure on the bureau.
On April 22, Abbott sent a letter to the agency saying he was “deeply troubled by reports from BLM field hearings that the federal government may claim — for the first time — that 90,000 acres of territory along the Red River now belongs to the federal government.”
Feds: No Land Grab
Neil Kornze, director of the Bureau of Land Management, responded in a May 1 letter that it’s not a land grab.
“I want to emphasize that the Bureau of Land Management is not expanding federal holdings along the Red River,” Kornze wrote.
Last week, a spokesman for Abbott accused the bureau of not being straightforward with landowners and held out the threat of suing the federal government.
“Texans deserve answers from a federal government that claims rights to land that we believe belongs to Texans,” Abbott spokeswoman Lauren Bean said. “The stonewalling must stop. We will work with Texas landowners to detail their side of the story and prepare for litigation if necessary.”
The trouble for most ranchers is they have no idea how it would affect them.
The bureau has said that it will release a scoping report in the next month that will include public comments and that it plans to seek more public input. And the 116-mile stretch could be surveyed before a final decision is made. The earliest that could happen is 2018.
Options include making the land open to the public or allowing no access at all. It could also be sold if it’s determined that it can’t be managed, McGuire said.
But the uncertainty makes many property owners nervous.
“It could be anywhere from zero to 1,000 acres,” Wilbarger County farmer Layne Chapman said. “They’re not telling us exactly where the gradient line is.”
While much remains uncertain, Chapman said he knows what will happen to him if the bureau decrees that he no longer owns 1,000 acres of his land, some of which is nearly 2 miles from the river.
“I will be in the unemployment line,” he said.