CASHION, Texas — It takes some effort to get to the Red River here.
Local rancher Kevin Hunter has to drive down a bluff and cross nearly a mile of fenced pastures dotted with pecan and live oak trees to reach the river, which serves as the border between Texas and Oklahoma.
It’s another 10-foot clamber down a sandy bank to the riverbed itself. Depending on the season, the water may scour along both banks, split in two streams or meander anywhere along the bed.
A 1923 Supreme Court decision was supposed to fix the boundaries of Texas and Oklahoma at the south bank of the Red River. More than 90 years later, the issue still isn’t settled.
The latest dispute involves Hunter and the owners of about 170 tracts on the Texas side of the river, who say they’ve been blindsided by the Bureau of Land Management.
BLM says it has a historical claim to 30,000 acres along the riverbank, dating to the Louisiana Purchase of 1803. But it never developed the land and did little to publicize that claim until 2013, when it began drawing up a long-term plan to manage the territory.
BLM says it’s only going through a periodic planning process that is required by law and may decide to do nothing with the land — or even turn it over to the adjacent farmers and ranchers. The bureau has sold off one disputed claim for about 90 acres.
Hunter and other landowners say they have deeds showing they’ve owned the land for years — decades, in some cases — and say BLM is relying on faulty surveys.
"If they’ve always owned it since the Louisiana Purchase, how come they’ve never taken possession of it?" Hunter asked in an interview.
Texas Gov. Greg Abbott (R) visited the region while he was running for office in 2014, and the Texas congressional delegation has introduced bills to settle the dispute. One bill made it out of committee but fell short of becoming law (E&E Daily, Nov. 19, 2014).
The landowners say they’re still living with the possibility of losing part of their property.
"Because of that cloud on the title, nobody can sell any property and nobody wants to buy any property," said Pat Canan, who farms and ranches on land his family bought in 1962.
The Supreme Court aimed to remove all the clouds about the Red River when it ruled in Oklahoma v. Texas. Up to that point, both states had treated the "cut banks" as the riverbanks.
"Not until some land on the south side and part of the river bed were discovered to be valuable for oil was this unbroken course of action and opinion drawn in question," Justice Willis Van Devanter wrote in the 1923 majority opinion.
To define the cut bank, Van Devanter drew on another Supreme Court decision, which used the common definition of a riverbank to set the boundary between Alabama and Georgia.
"Such a line may be found upon every river, from its source to its mouth. It requires no scientific exploration to find or mark it out," Van Devanter quoted.
The decision and others left the federal government in control of a strip between the center of the river and the bank.
The states were still debating the location of the bank 71 years later when BLM drew up its resource management plan for Oklahoma. The bureau has to write a plan every 15 to 20 years for all of its sprawling holdings — 250 million surface acres and 700 million acres of mineral rights.
At the time, Texas and Oklahoma had formed the Red River Boundary Commission to, once again, finalize the border between the states.
BLM said in its 1994 resource management plan for Oklahoma that it might wind up managing 90,000 acres if the commission set the boundary at the south bank. That’s an inflated figure, because much of it included subsurface minerals. The surface land on the south side of the river amounted to about 30,000 acres.
The 1994 plan included options for opening the land to public use, with parking lots and trails.
In 2000, President Clinton signed legislation setting the Oklahoma-Texas border at the vegetation line on the south side of the river. That technically gave BLM a claim to a strip along the south bank, but it didn’t act on its 1994 plan.
Surveys stir tension
Hunter never heard about the possibility of a federal claim when he bought the ranch in 2010. Canan said the first he heard from BLM was in 2008, when a crew visited his land to conduct a survey.
Paul McGuire, a BLM spokesman in Oklahoma City, said the agency has tried to be open to the public about the plan.
"Did we mail it to every owner on the north and south side of the river? No, but the plan itself is a public document," he said.
Yet when BLM started holding meetings on its new plan in 2013, it didn’t notify Woody Gossom, the county judge of Wichita County. Gossom said he heard about the first BLM meeting from a landowner — two hours before it started.
So far, BLM has only surveyed about 6,200 acres of the potential 30,000 acres. That has led to more friction.
On Hunter’s ranch, BLM says its claim extends all the way to the bluff that defines the river valley, even though Hunter has a survey from 1886 showing his land extending well out from the bluff across the valley floor. The vegetation line at the edge of the river is more than half a mile away, and the land is dotted with trees, some of them more than 2 feet in diameter.
Canan said BLM’s markers are almost a mile from the river on his property.
McGuire said some of the confusion may be because BLM’s ownership pre-dates the 2000 law that set the boundary at the vegetation line.
BLM settled with one owner along the river at the end of July.
The agency deeded about 90 acres back to Tommy Henderson, whose family has farmed the area since 1904, under a "color of title" provision. The law allows the bureau to sell land to people who can prove they’ve had clear title to a tract, made improvements and paid taxes, the Wichita Falls Times Record News reported. BLM gave Henderson credit for taxes he’d paid on the land, and Henderson acquired the land for about $1 an acre, the newspaper reported.
McGuire said in an interview that as many as 100 of the 170 parcels along the Red River could be disposed of in the same way — depending on the outcome of the plan.
Rep. Mac Thornberry and Sen. John Cornyn, both Texas Republicans, have introduced a bill to jump-start the process. H.R. 2130 and its Senate companion, S. 1153, would require BLM to survey the southern boundary of the Red River — using a surveyor approved by Texas officials — and offer the federal land for sale.
Thornberry, who authored the bill that was supposed to settle the state borders in 2000, said in an interview that BLM has handled the Red River dispute poorly. He hopes the latest bill can clear up the problem.
"If we do nothing, then I think it’s 2018 before the BLM intends to have their [plan] finalized and who knows how long after that anything gets decided," he said.
But Canan and Hunter said they’re not optimistic about the bill’s chances.
"It may get out of the House and Senate; I don’t foresee a Democratic president signing that," Canan said.
Both said they’re protesting BLM’s survey of the boundaries and may wind up taking BLM to court.