The Bureau of Land Management rides into Texas

Fresh off an embarrassing rout in Nevada, the Bureau of Land Management seems to be looking for a win in Texas… and the story has grown big enough to rope in current Texas Attorney General and gubernatorial candidate Greg Abbott.

Abbott wrote a letter to BLM director Neil Kornze, declaring himself “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 belong to the federal government.”

“Private landowners in Texas have owned, maintained, and cultivated this land for generations,” Abbott continued.  “Despite the long-settled expectations of these hard-working Texans along the Red River, the BLM appears to be threatening their private property rights by claiming ownership over this territory.  Yet, the BLM has failed to disclose either its full intentions or the legal justification for its proposed actions.  Decisions of this magnitude must not be made inside a bureaucratic black box.”

Abbott goes on to detail the situation on the Red River, which goes all the way back to the Louisiana Purchase and the establishment of the state boundaries between Texas and Oklahoma.  It might seem odd to the modern observer with a GPS computer built into his smartphone, but there’s still some controversy about exactly where Texas ends and Oklahoma begins (or vice versa, for the benefit of readers in Oklahoma.)  It’s got something to do with the Red River, but there was a century-long dispute over precisely which part of the river served as the state boundary – a matter of keen interest to landowners, who must obtain deeds from the proper government offices.

As Abbott presents this history, the matter was settled in 2000 with a compact between Texas and Oklahoma, ratified by Congress, which defines the “vegetation on the south bank of the Red River” as the state line, rather than the “south geologic cut bank.”  That sounds simple enough, but the implementation of this compact is actually rather complex, due to quirks of geography.  Some of the land in the area was actually allocated to the Apache, Comanche, and Kiowa tribes, held in trust by the federal government.  If the cut bank had been used, those 90,000 acres – over 115 miles of the Red River – could have become federal land.  But that was a hypothetical scenario explored by the BLM over two decades ago, rendered obsolete (in Abbott’s opinion) by the 2000 compact.

What has everyone nervous is a 1986 court decision in which a rancher named Tommy Henderson lost 140 acres of his land to the federal government in a lawsuit, without receiving any compensation.   The basis of this decision was that Texas had no authority to deed the land to Henderson, because it didn’t belong to the state of Texas; it fell on the wrong side of the disputed Red River boundary.  Henderson appeared on Greta van Susteren’s Fox News show to discuss the seizure as the new Red River controversy heated up, mentioning that actually kept making payments for the land taken by the BLM, fearing he would lose everything else he owned if he didn’t.

There are fears that the BLM will invoke this legal precedent as proof that the 2000 compact between Texas and Oklahoma is not binding, and the federal government actually owns that 115-mile stretch.

That would involve somehow nullifying congressional recognition of the compact 14 years ago.  One of the questions Abbott asks of the BLM in his letter is whether it “still considers Congress’ ratification of the Red River Boundary Compact as determinative of its interest in land along the Red River,” and if not, what legal analysis the Bureau is using to justify its position.

Abbott is essentially demanding the BLM come clean about exactly what it plans to do in Texas (and perhaps also in Oklahoma and Kansas, where the BLM is reportedly also eyeing property it might assert federal control of.)  He describes possible federal action in the Red River area as a threat to “long-settled private property rights” that could “undermine fundamental principles – including the rule of law – that form the foundation of our democracy.”

On Tuesday, Abbott gave a colorful interview to Breitbart News in which he declared, “I am about ready to go to the Red River and raise a ‘Come and Take It’ flag to tell the feds to stay out of Texas.”

The Bureau’s official statements have been blanket denials that they have any interest in seizing this land.  No one in Texas seems reassured by these statements.  Detractors will doubtless portray some of the livelier criticism of the BLM as grandstanding, noting that Greg Abbott is running for governor, and its Nevada fiasco made the Bureau of Land Management an excellent campaign foil.  Practically every statement issued by a Texas rancher or official over the past week has found room to mention the Bundy ranch standoff.

On the other hand, if the feds really are thinking about making a move, a spirited show of resistance from Texans might prompt them to do a little rethinking – a dose of preventive pushback might avoid years of costly court battles.  A proper and thorough response to the letter Abbott sent Director Kornze, providing detailed answers to the Texas Attorney General’s questions, would go a long way toward defusing the crisis.