BLM admits to incorrect methodology
The Bureau of Land Management (BLM) filed a letter in federal district court on April 4 admitting that the agency used incorrect methodology in surveys to determine the gradient boundary on Texas property along the Red River.
The letter is in response to a lawsuit against the BLM challenging the federal government’s claims to private property in the area.
The ongoing dispute prompted action in the U.S. House of Representatives and the U.S. Senate in February to establish a fair and balanced process to conduct accurate surveys of land along the Red River. (See Feb. 20, 2017 WLJ).
In the letter from BLM, Acting Chief Surveyor Stephen Beyerlein wrote, “Due to this use of incorrect methodology the BLM is suspending these three surveys, effective on this date [March 29], in order to allow for further investigation.”
Beyerlein went on to say that, “Following investigation, the survey may be cancelled, corrected, or reinstated, either in whole or in part, but no administrative action based on the plats filed for these three surveys may be initiated or completed by BLM while these surveys are suspended.”
When contacted regarding a timeline or further action, BLM’s New Mexico State Office indicated it is unable to comment due to the ongoing litigation.
Texas Attorney General (AG) Ken Paxton praised the move, saying, “This latest action by the Trump administration protects the property rights of Texans as defined by the U.S. Supreme Court and prevents the federal government from infringing upon Texas’ sovereign borders. He added, “It was our contention all along that the BLM surveys were conducted improperly and unlawfully. We will vigilantly defend Texas’ border from federal overreach.”
According to the AG’s office, the BLM began its surveys in 2008 as part of a process established under President Barack Obama to update the BLM’s Resource Management Plan. Those surveys claimed federal rights to land far from the river’s southern bank. Pursuant to various U.S. Supreme Court cases in the 1920s, the federal government only has rights to areas from the river’s medial line up the river’s southern bank.
The government’s claim to federal land left the landowners and others scratching their heads, especially since Texas has never had federal public lands with the exception of military bases, Veteran’s Administration hospitals, Post Offices and Big Bend National Park.
U.S. Rep. Mac Thornberry (R-TX-13), who represents the land in question, issued a statement saying, “The portions of the river that the agency has surveyed strayed widely from the accepted gradient boundary survey method established by the Supreme Court in Oklahoma v. Texas. It is encouraging that the BLM has admitted their error and that all administrative action will be suspended until the matter is resolved.”
When asked what the next step may be, Thornberry’s office told WLJ, “We will continue to seek a legislative solution until the matter is fully resolved either in the court or by the BLM.”
Sen. John Cornyn (R-TX) commented on the letter, saying, “I applaud the Trump administration for stepping in to protect Texas landowners where the previous administration refused. Texans along the Red River should not be subject to the seizure of property they rightfully own, and Congress must now work to pass a solution that protects their rights.”
Rob Henneke, Litigation Director and General Counsel for the Texas Public Policy Foundation, represents the plaintiffs in the case and told WLJ while the move to suspend the surveys is good news it doesn’t end the lawsuit.
“What we are looking for, the next step in this case will be when the government responds to our summary judgment motion, and it is due next week [week of April 17]. That’s the period where the government has a deadline to respond to our motion before the court, basically seeking a victory prior to trial based on clear law and uncontested facts,” Henneke said. “I think it will be very interesting to see in light of the notice filed last week [week of April 3] how the government responds next week. Do they continue to assert general ownership of my clients’ property despite the fact that they have acknowledged this survey was wrong and based on an incorrect methodology?” Asked about the possibility of the BLM reviewing its methodology and possibly conducting another survey, Henneke said, “I don’t know what there is for them to do. In this situation it’s the United States Supreme Court opinion of Oklahoma vs. Texas, which defines the boundary between Texas private property south of the south bank and federal territory in Oklahoma in very clear and unequivocal terms. There is nothing more for the government to re-determine other than to go look at the law and to follow it.”
WLJ contacted Ethan Lane, Executive Director of the Public Lands Council and National Cattlemen’s Association Federal Lands, for a reaction to the letter. Lane said it is a good first step. “I think what you are seeing here is this agency signaling that they recognize there is a problem and they want to stop in place and take some time to make sure that they don’t disenfranchise all of those landowners on the south side of the river.”
To read a copy of the BLM letter, visit http://tinyurl. com/BLMThornberry. — Rae Price, WLJ Editor