Feds threaten to take 90,000 acres along Texas-Oklahoma border

Respect for property rights and the rule of law are fundamental principles in the State of Texas and the United States. When governments simply ignore those principles, it threatens the foundation of our free and prosperous society. That is why I am deeply concerned about reports that the Bureau of Land Management (BLM) is considering taking property in the State of Texas and that it now claims belongs to the federal government. Given the seriousness of this situation, I feel compelled to seek answers regarding the BLM’s intentions and legal authority with respect to Texas territory adjacent to the Red River.”

Greg Abbott, Attorney General of Texas

By Terri Hall | April 30, 2014

‘Come and Take It’ has been the cry of Texans for generations since the battle at Gonzales in 1835 when the Mexican army tried to retrieve its cannon from defiant Texans, and the recent interest by the Bureau of Land Management (BLM) to take over 90,000 acres of private Texas land along the Red River has stirred the battle cry once again.

When the Cliven Bundy story broke in Nevada, it didn’t take long for Texas landowners to cry foul over a longstanding dispute with BLM and the federal government over the state line along the Red River and where the private property line resides. Like all rivers, the water line shifts and hence the vegetation line with it.

Gubernatorial candidate and current Texas Attorney General Greg Abbott even dared the BLM to ‘Come and Take It.’ State Representative and candidate for Texas Agriculture Commissioner Sid Miller has also made it a campaign issue. Congressman Mac Thornberry, who represents the ranchers affected, says the BLM is in the middle of a scoping process as part of creating its Resource Management Plan that would challenge the ownership of land it considers to be in question.

It all dates back to a 1984 federal lawsuit that Tommy Henderson lost to the BLM which resulted in the BLM taking 140 acres of his land without paying him a dime for it. It’s this court precedent that the BLM is now using as a means to lay claim to 90,000 additional acres along the 113-mile property line on the Texas side of the Red River. BLM argues that dating back to the Louisiana Purchase, Texas didn’t have the right to deed any of the land to private owners and therefore the land still belongs to the federal government.

Despite a Supreme Court case in 1922 that attempted to settle the question about the state line by putting stakes in the ground, the resolution faded when the stakes did as the sediment of the river displaced them. A compact was settled upon by both the Oklahoma and Texas legislatures in 2000, but it was never ratified by Congress as required by the Constitution (Art. I, Sec. 10, Clause 3). With no clear definition in place, the confusion has allowed the federal government an opening to simply confiscate the land.

Abbott sent a letter to the BLM citing his concerns and said the agency hasn’t fully discussed “either its full intentions [for the land] or the legal justification for its proposed actions.”

Outgoing Governor Rick Perry jumped on the bandwagon, too, last week promising a fight over Texas property rights when his own record on property rights is abysmal. Texans still remember Perry’s attempt to confiscate 500,000 acres of private land for his Trans-Texas Corridor (TTC) plan. After years of a Texas-sized grassroots revolt, Perry and his highway department backed-off and the Texas legislature repealed the TTC from state statute in 2011. However, parts of it live on through public-private partnerships though smaller footprints are planned.

Once a resource plan is in place and a Record of Decision issued, the federal government’s claim could be implemented. After that, it may only be stopped through a lengthy court battle.

Precedent for victory set

But one method that’s proven to work is local government coordination. Coordination is a process mandated by federal law that requires federal agencies to coordinate their plans, programs, and management activities with local governments BEFORE implementation. Federal action cannot conflict with local plans, so local units of government along the Red River can and should successfully challenge any confiscation of land by the BLM, preferably before any Record of Decision. The wild card of coordination is that it requires elected officials that will stay loyal and not sell-out landowners.

Coincidentally, the property rights foundation in Texas that teaches local governments how to implement coordination and successfully stave off state and federal agencies is American Stewards of Liberty. Margaret Byfield along with her husband Dan Byfield who serve as Executive Director and CEO respectively, started their organization to fend off the BLM against Margaret’s own family in a case similar to Cliven Bundy’s. The federal government argued ranchers had no property rights on federal lands. After 17 years of litigation, the court finally ruled in favor of Margaret’s parents, Wayne and Jean Hage, in June of 2008, awarding them the most significant Fifth Amendment case of this generation – stating ranchers own the water on federal lands that flow to private land.

The Byfields have since discovered the power of coordination to effectively protect property rights without having to resort to years of expensive litigation. They were at the forefront of the battle to crush the Trans Texas Corridor and its threat to private property, and they did it using coordination.

The actual timeframe for seizing any land at the Texas border is unclear. But one thing is crystal clear, Texans won’t give up their land without a fight.

Terri Hall is the founder of Texans Uniting for Reform and Freedom (TURF), which defends against eminent domain abuse and promotes non-toll transportation solutions. She’s a home school mother of nine turned citizen activist. Ms. Hall is also a contributor to SFPPR News & Analysis.