Texas AG joins landowners in Red River lawsuit against feds

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Texas Attorney General intervenes in Red River land dispute
By Terri Hall
March 22, 2016

It’s a nightmare most ranchers and property owners hope they never experience. But it’s happening to property owners along a 117-mile stretch of the Red River at the Texas border where the federal Bureau of Land Management (BLM) is seeking to seize 90,000 acres of  private property. The Texas Public Policy Foundation’s Center for the American Future filed a lawsuit, Aderholt, et. al. v. Bureau of Land Management, challenging the move on behalf of seven Texas families and three counties, and Texas Attorney General Ken Paxton quickly had the state of Texas join the suit as an intervening party. The General Land Office followed suit. Governor Greg Abbott has also expressed his support for the impacted landowners and vehemently defends the existing boundary lines of Texas’ northern border.

Robert Henneke, general counsel for Center for the American Future, recently amended its pleadings in response to a 30-page motion filed by the BLM seeking to dismiss the case, which claimed they failed to properly describe the plaintiffs’ property. Henneke believes the original suit adequately defined the property, but in an effort to quickly move the case along, the amended suit goes above and beyond what’s required and includes certified copies of the recorded deeds.

What’s at stake is the very sovereignty of the state itself. Without the ability to have its boundaries recognized and protected, the state cannot exist for long since there’s no telling where and when the encroachment will end if the BLM is allowed such a land grab of a state’s sovereign boundaries.

Paxton put it this way: “The BLM’s failure and refusal to conduct a proper and complete boundary survey along the Red River directly injures the state’s ability to demand recognition of its boundary. The federal government’s inaccurate and arbitrary claim to land located in Texas conflicts with the requirements of the U.S. Supreme Court.”

Truly, the BLM only has legal claim to a narrow stretch of the Red River up to the southern bank, according to U.S. Supreme Court cases from the 1920s. Yet the BLM is seeking to snatch private property well beyond the Red River’s southern bank, even miles inside the state of Texas.

The affected landowners have been at war with the BLM for over two years, and while they’ve garnered support from the state’s top politicians, including the former Governor Rick Perry and Lt. Governor David Dewhurst and the state’s two U.S. Senators, ranchers have yet to successfully beat back federal encroachment using political means. Congressman Mac Thornberry successfully passed a bill, the “Red River Private Property Protection Act” or H.R. 2130, that would provide legal certainty to landowners last December. Though the bill has yet to pass the senate, President Barack Obama quickly threatened to veto the legislation. So with the help of Center for the American Future, litigation has become the next step and all parties vow to fight it until the bitter end — all the way to the U.S. Supreme Court if necessary.

Abbott also plans to file an amicus brief in support of the lawsuit after trying in vein to get the BLM to back-off with a firm plea in a letter last year. He stressed the Constitutional principle that governments are created to protect private rights, “This principle is enshrined in the Fifth Amendment of our founding document. The BLM should demonstrate that the federal government still respects private property rights and end this unconscionable land grab.”

The battle started in 2013 when the BLM sought to update its Resource Management Plan and claimed the deeded land, long established as Texas private property, as federal lands. The dispute arises over the definition of what constitutes the gradient boundary - the midpoint between the lake bed and where the water crests. The parties have yet to come before District Judge Reed O’Connor, who will preside over the case in the U.S. District Court’s Northern District of Texas in Wichita Falls. But the case will certainly be followed closely by property rights advocates as it has the potential to set a precedent that either protects private property rights from government incursion or that will completely destroy them.

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