I.  BLM’s land boundary must fall inside the vegetation line as a matter of law.

Under well-established law, the United States owns the sandy bed of the Red River, but everything below the south bank of that river belongs to Texas. Texas has lawfully patented that land to private property owners for more than a century.

By definition, the “bank” is the sliver of land that separates the sandy “[river]bed from the adjacent uplands.” State of Okl. v. State of Tex., 260 U.S. 606, 632 (1923). “On the valley side of the bank is vegetation and on the river side is bare sand.” Id. at 634. Put another way, the vegetation line marks the outermost boundary of the bank.

Nonetheless, BLM is now claiming to own thousands of acres of private property that, in some places, falls more than a mile outside of the vegetation line. This erroneous boundary would place thousands of acres of dry land, including houses, barns, fences, and livestock, in the middle of an imaginary river. This is ludicrous. The valley land south of the vegetation line—which BLM now claims belongs to the U.S.—has “always has been dealt with as upland.” Id. at 636. From the time of the Louisiana Purchase to this day, the courts have rejected the notion that such land “belonged to the United States.” Id. at 637.

BLM’s alleged location of the “bank” is so far inland that the waters of the Red River do not even reach it at flood stage. In May of 2015, the United States Geological Survey (USGS) measured the flow rate of the Red River at 49,800 ft3 / second—over 820 times higher than its average rate from the previous eight months. At the same time, the USGS measured the depth of the Red River in that area to be 11.88’—nearly three feet above what the National Weather Service considers flood-stage for that part of the river. In short, the river was “at flood.” Nevertheless, the water did not reach the BLM’s suggested boundary.

As a matter of law, the boundary bank necessarily falls well within the outer edges of the river’s waters when the river is at flood. State of Okl. v. State of Tex., 260 U.S. 606, 632 (1923). In distinguishing the boundary of the river from the adjacent uplands, the Supreme Court held that the riverbed does not include “lateral valleys…although temporarily overflowed in exceptional instances when the river is at flood.” Id. Put simply, BLM’s alleged boundary is flat-out wrong.

II.  BLM’s refusal to specify additional lands it claims to own along the Red River violates our Clients and the other impacted landowners’ Due Process Rights afforded under the United States Constitution

BLM Estimate MapIn addition to the surveys completed on some properties, BLM has also notified our Clients and other adjacent property owners that it will be claiming significant portions of their property at some point in the future. However, because BLM has not finished its survey—and stated during the October 13, 2015, public hearing in Ft. Worth, Texas that will not—BLM refuses to identify the boundaries of the land it claims as federal property. As a result, the property owners along the 116 mile stretch of the Red River are left in limbo, uncertain of where BLM claims their private land ends and federal land begins.

This uncertainty is no small inconvenience. The threat of federal ownership over their private property places a cloud on these property owners’ titles, greatly reducing the value of their properties. Moreover, property owners unwittingly using federal land could be basis for trespass claims against them. If a property owner builds on what turns out to be federal land, his improvements would be lost. Indeed, even excluding the public from land falling into this BLM-created “gray area” could create significant legal complications for property owners simply trying to keep strangers off of their property.

This type of legal limbo violates the Due Process guarantees of the United States Constitution. “The point of due process of the law in general is to allow citizens to order their behavior.” State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 418 (2003). “Elementary notions of fairness” enshrined in the Due Process Clause “dictate that a person receive fair notice the conduct that will subject him to punishment.” Id. By claiming federal ownership of large swaths of property without expressly defining its limits, BLM has violated these principles by making it impossible for affected landowners to order their affairs on their property.