Aderholt v. Bureau of Land Mgmt., Civil Action No. 7:15-cv-00162-O

CourtU.S. District Court — Northern District of Texas
Writing for the CourtReed O'Connor UNITED STATES DISTRICT JUDGE
PartiesKENNETH ADERHOLT et al., Plaintiffs, v. BUREAU OF LAND MANAGEMENT et al., Defendants.
Decision Date29 June 2016
Docket NumberCivil Action No. 7:15-cv-00162-O

KENNETH ADERHOLT et al., Plaintiffs,
v.
BUREAU OF LAND MANAGEMENT et al., Defendants.

Civil Action No. 7:15-cv-00162-O

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS WICHITA FALLS DIVISION

June 29, 2016


MEMORANDUM OPINION AND ORDER

Before the Court are Defendants' Motion for Partial Dismissal of Plaintiffs' Amended Complaint and Brief in Support (ECF Nos. 48-49), filed February 26, 2016; Plaintiffs' Response to Defendants' Partial Motion to Dismiss (ECF No. 53), filed March 22, 2016; Defendants' Reply in Support of Their Motion for Partial Dismissal of Plaintiffs' Amended Complaint (ECF No. 61), filed April 4, 2016; Plaintiff's Sur-Reply in Opposition to Federal Defendants' Motion to Dismiss (ECF No. 73), filed April 20, 2016; and Defendants' Reply to Plaintiff's Surreply (hereinafter "2d Reply") (ECF No. 74), filed April 29, 2016. Also considered by the Court is the Brief of Amici Curiae in Support of Plaintiffs' Request for Quiet Title and Declaratory Judgment and in Opposition to Defendants' Motion to Dismiss (ECF No. 58), filed March 30, 2016.1 Also considered by the

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Court is Amicus Curiae Brief of the Texas Department of Agriculture in Support of Plaintiff's Complaint (ECF No. 79), filed May 10, 2016.

Having considered the motion, related briefing, and applicable law, the Court finds that Defendants' Motion for Partial Dismissal of Plaintiffs' Amended Complaint should be and is hereby GRANTED in part and DENIED in part.

I. BACKGROUND

This case concerns the alleged unconstitutional and arbitrary seizure of approximately 90,000 acres of private property along the Red River in Texas. See Am. Compl. 1, 18, ECF No. 40. Plaintiffs include individual property owners (the "Surveyed Individual Plaintiffs" and "Unsurveyed Individual Plaintiffs" or, collectively, the "Individual Plaintiffs"), their respective county governments of Wichita, Clay, and Wilbarger County, Texas (collectively, the "County Plaintiffs"), and Clay County Sheriff Kenneth Lemons, Jr. ("Sheriff Lemons") in his official capacity.2 Id.

In 1803, the Louisiana Purchase established the southern bank of the Red River as the boundary between the United States and Spain, with the United States acquiring ownership of the riverbed and the lands north of the Red River. Id. ¶ 31. Spain's subsequent 1819 treaty with the United States (hereinafter the "Adams-Onis Treaty") established the border of the two nations as the "south cut bank" of the Red River. Id. ¶ 32. In 1838, after the Republic of Texas gained independence from Mexico, the Republic of Texas and the United States entered into a treaty upholding the border. Id. ¶ 33. Under both treaties, the Republic of Texas and the United States each maintained the ability to access and navigate the river, but the United States owned the

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riverbed. Id.

In 1922, Oklahoma sued Texas claiming that Oklahoma owned the entirety of the Red River riverbed. Id. ¶ 34. The United States intervened, also claiming title to the entirety of the riverbed, and insisting that Oklahoma could not claim title because the Red River was not navigable in the disputed stretch. Id. ¶ 35. In 1923, the Supreme Court reaffirmed, in relevant part, that the south cut bank, or the southern gradient boundary, marked the northern border of Texas. Am. Compl. ¶ 37, ECF No. 40; Oklahoma v. Texas, 260 U.S. 606, 625 (1923).

The Supreme Court defined the south cut bank as the "bank at the mean level of the water, when it washes the bank without overflowing it . . . subject to the right application of the doctrines of erosion and accretion and of avulsion to any intervening changes." Am. Compl. ¶ 40, ECF No. 40. In accordance with its 1923 ruling, the Supreme Court commissioned a survey to determine the gradient boundary along the Red River. Id. ¶ 50. The survey, certified by the Supreme Court in 1925, did not establish a permanent boundary along the entire 116-mile stretch relevant to this dispute, but instead identified parts of the gradient boundary at that point in time. Id. ¶¶ 50-51, 53. Furthermore, the survey does not presently represent the south bank's gradient boundary due to the Red River's erosion and accretion over the past 90 years. Id.

In 1999, Texas and Oklahoma entered into an interstate compact (hereinafter the "Compact"), ratified by Congress in 2000. Prior to the Compact, jurisdictional uncertainty among Oklahoma, Texas, and the United States along the Red River rendered each sovereign unable to prosecute for crimes or collect taxes. Id. ¶ 55. For instance, such uncertainty resulted in large portions of the northern border of Texas being left as a "no man's land" where drug distribution, prostitution, illegal gambling, and dog and cockfighting regularly occurred without means of redress. Id. ¶¶ 55-56.

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Through the Compact, Texas and Oklahoma established the permanent boundary between the states as the vegetation line along the south cut bank of the Red River, a line visibly identifiable and close to the boundary established by Oklahoma. Id. ¶ 57. The Compact explicitly granted Texas sovereignty over all lands south of the southern vegetation line. Id. ¶ 58. Furthermore, the Compact did not change the title or rights of any person or entity, whether public or private, to any of the lands adjacent to the Red River, and it did not change the boundaries of those lands. Id. ¶ 59.

In 2003, the Bureau of Land Management ("BLM") independently began the process of conducting a resurvey along portions of the Red River to determine the United States's interest in the Red River riverbed. Id. ¶ 61. In 2007 and 2008, BLM representatives entered and affixed physical survey markers (the "Survey Markers") to the properties owned by Patrick Canan ("Canan"), Kevin Hunter ("Hunter"), and Jimmy Smith ("Smith") (collectively, the "Surveyed Individual Plaintiffs"), each of whom are citizens of either Clay or Wichita Counties and collectively hold title to land in the two counties. Id. ¶¶ 6-7, 16, 62-64. One marker on Canan's land, approximately one mile from the Red River, designates a boundary line of Texas as part of its identification of BLM-claimed public lands on Canan's land. Id. ¶¶ 6, 62. According to the BLM's survey, approximately 1,400 acres of Canan's 2,000 acres belong to the United States. Id. Similarly, one marker on Hunter's land designates the medial line of the Red River but is placed half a mile from the main course of the Red River. Id. ¶¶ 7, 63. According to BLM's survey, approximately 250 of Hunter's 510 acres belong to the United States. Id. Finally, one marker on Smith's land, approximately three-quarters of a mile away from the Red River, designates a boundary line of Texas as part of its identification of BLM-claimed public lands within Smith's land. Id. ¶¶ 16, 64. According to the BLM's survey, approximately 100 of Smith's 140-150 acres belong to the United

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States. Id. Furthermore, the Survey Markers state it is unlawful to remove them. Id. ¶ 66.

Thereafter, the BLM published updated survey plats (the "Plats") covering portions of the Red River through Clay and Wichita counties in the Federal Register. Id. ¶ 65 (citing 74 Fed. Reg. 28061-62; 75 Fed. Reg. 8738-39). These Plats show the area within Canan, Hunter, and Smith's properties where BLM placed survey markers as designated federal land. Id. Plaintiffs allege that Defendants' surveying method applies to the entire 116-mile stretch of the Red River within Clay, Wichita, and Wilbarger Counties, as the Plats identify this land as federal land. Id. ¶ 67.

As a result, Plaintiffs assert that Defendants claim they own up to, and possibly exceeding, 90,000 acres of Texas land lying outside of the south vegetation line and boundary bank of the Red River. Id. ¶ 74. However, Defendants do not intend to survey most of the land they claim to own. Id. ¶ 79. For instance, at an October 13, 2015 public hearing on the BLM's proposed revisions to its Resource Management Plan ("RMP"), BLM representatives notified attendees that "we don't have the funds to survey it. We're not allowed to survey it right now. Until that happens we can't get those implementation level decisions that you want answered—until we get whether or not we should or should not do something with it later on." Id. ¶ 74.

The Federal Land Policy and Management Act ("FLPMA") of 1976, which governs BLM's policies and procedures, requires the development and maintenance of land use plans. Id. ¶ 81. Under the FLPMA, the Secretary of the Interior is instructed to "develop, maintain, and, when appropriate, revise land use plans which provide by tracts or areas for the use of the public lands." Id. (citing 43 U.S.C. § 1712(a)). Plaintiffs allege they have no reasonable way of knowing whether they must comply with the BLM's regulations on portions of their properties or who is lawfully on land claimed by Defendants. Id. ¶ 89. They also assert that the process demonstrates federal

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assertion of title, ownership and control over Plaintiffs' land and has clouded the Individual Plaintiffs' titles. Id. ¶ 86.

In addition, the County Plaintiffs allege they do not know what amount of land within its jurisdiction is taxable, Sheriff Lemons does not know who is trespassing, and the Individual Plaintiffs do not know the amount of land which is taxable. Id. ¶ 91. Moreover, Plaintiffs allege that the BLM's actions caused the resurgence of the "no man's land" that the Compact was enacted to prevent. Id. ¶ 104. Plaintiffs have experienced numerous incidents of trespass by the public, on foot as well as by ATVs. Id. ¶ 105. As a result, trenches from ATVs have destroyed portions of the bed and banks of the Red River, the Red River is constantly littered with beer cans and trash, and local law enforcement from Texas and Oklahoma have been unable to prevent or control routine debauchery. Id. ¶ 107. Plaintiffs claim that the cost of this "no man's land" to the Plaintiff Counties and to law...

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