[Senate Report 115-426]
[From the U.S. Government Publishing Office]
Calendar No. 687
115th Congress } { Report
SENATE
2d Session } { 115-426
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RED RIVER GRADIENT BOUNDARY SURVEY ACT
_______
December 11, 2018.--Ordered to be printed
_______
Ms. Murkowski, from the Committee on Energy and Natural
Resources, submitted the following
R E P O R T
together with
MINORITY AND SUPPLEMENTAL VIEWS
[To accompany S. 90]
[Including cost estimate of the Congressional Budget Office]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 90) to survey the gradient boundary along
the Red River in the States of Oklahoma and Texas, and for
other purposes, having considered the same, reports favorably
thereon without amendment and recommends that the bill do pass.
PURPOSE
The purpose of S. 90 is to survey the gradient boundary
along the Red River in the States of Oklahoma and Texas.
BACKGROUND AND NEED
There is a 116-mile stretch of land along the Texas-
Oklahoma border that is in disputed ownership. Under the
Louisiana Purchase in 1803, the United States bought land from
France that included the riverbed of the Red River. Subsequent
treaties between the United States and Spain, Mexico, and the
Republic of Texas confirmed that the boundary between Texas and
Oklahoma was the Red River's south bank.
In 1867, the U.S. signed a treaty with the Kiowa, Comanche,
and Apache Tribes that designated a reservation north of the
``middle of the main channel'' of the Red River between the
98th Meridian and the North Fork. Congress later disposed of
the reservation and created a grazing reserve that was
ultimately disposed of in 1906. However, since the southern
boundary of the reservation and grazing reserve was defined as
the ``middle of the main channel,'' the land between the medial
line of the Red River and the south bank remained as Federal
land.
After oil was discovered in an area around the Red River,
Oklahoma brought suit against Texas in 1919 to determine the
common boundary. In a 1923 decision and decree, the U.S.
Supreme Court adopted the gradient boundary survey method for
determining the boundary between Texas and Oklahoma (Oklahoma
v. Texas, 261 U.S. 340). According to this decision, the
gradient boundary is on and along the south bank, at the
average or mean-level of the waters when they reach and wash
the bank without overflowing it. In unique areas where there is
no well-defined cut bank, but only a gradual incline from the
sand bed of the river to the upland, the boundary is a line
conforming to the mean-level of the water when at other places
in that vicinity they reach and wash the cut bank without
overflowing it.
In 2000, Congress gave its consent to the Red River
Boundary Compact (Compact) between the States of Texas and
Oklahoma (Public Law 106-288). The purpose of the Compact was
to establish a visible boundary between the two States that
would resolve jurisdictional and sovereignty disputes issues.
The Compact set the political boundary as the vegetation line
on the south bank of the Red River. While the Compact does not
affect land ownership, it is widely accepted that the
vegetative line and the gradient boundary can be relatively the
same or at least within feet of each other.
Accretion, erosion, and avulsion have gradually altered the
course and location of the Red River in the area subject to S.
90. Accretion can be generally defined as the deposit of soil
along the bank or bed of a river and erosion is the removal of
soil from the bank or bed of a river. Legally, a landowner is
allowed to keep the accretions attached to his or her land but
loses title to eroded lands. An avulsion is the sudden change
in a channel of a boundary river that can be caused through
natural events or from human activity. When this sudden change
occurs, the boundary remains where it was before the avulsion
event. The decree rendered in the 1923 U.S. Supreme Court
decision explicitly addresses accretion, erosion, and avulsion
and recognized that the boundary between Texas and Oklahoma
would continually move with the River through accretion and
erosion but not through avulsion.
The Bureau of Land Management (BLM) is currently updating
its Oklahoma, Kansas, and Texas Resource Management Plan (RMP),
which covers the 116-mile stretch of the Red River subject to
S. 90. BLM originally stated that an estimated 90,000 acres of
land along this stretch of the river may be considered public
domain and managed as Federal land. BLM has since reduced this
estimate to 30,000 acres at the most, of which only 6,402 acres
have been actually surveyed.
BLM's statements and the pending RMP revision have caused
great concern among local landowners and others that the
Federal government is claiming to own land which was previously
deeded to individual citizens. Most landowners along the river
are now unsure whether the land they have held title to and
have paid taxes on, in many cases for generations, will remain
in their families or be subject to Federal ownership and
management. Further, the entirety of the 116-mile stretch of
the Red River in question has never been surveyed by the BLM,
and the method used to survey certain small portions of the
river differs from the accepted gradient boundary survey method
established by the 1923 U.S. Supreme Court decision and decree.
These BLM surveys have been contested by landowners, county
officials, the Texas General Land Office (GLO), and others.
In November 2015, Texas landowners initiated litigation,
which was later joined by the GLO, against BLM alleging
unconstitutional and arbitrary seizure of private property in
Texas. In November 2017, a settlement agreement was reached,
which stipulated that the northern boundary of private property
along the Red River between Texas and Oklahoma is governed by
the opinion of the Supreme Court in Oklahoma v. Texas, which
established the gradient boundary as the ownership boundary.
However, the settlement agreement does not resolve the
geographic location of the boundary, but requires the BLM to
apply the principles originally established in Oklahoma v.
Texas in preparing any future survey or resurvey of the Red
River.
S. 90 seeks to clarify the ownership of the land in
question by requiring the Secretary of the Interior to
commission a survey of the South Bank boundary line using the
gradient boundary survey method to survey the southern bank of
the Red River, using surveyors that have been approved by the
Texas GLO and the Oklahoma Land Office (LO).
LEGISLATIVE HISTORY
S. 90 was introduced by Senators Cornyn and Cruz on January
10, 2017, and referred to the Judiciary Committee. On February
28, 2017, the Judiciary Committee discharged S. 90 by unanimous
consent and the bill was referred to the Energy and Natural
Resources Committee. The Subcommittee on Public Lands, Forests,
and Mining, held a hearing on S. 90 on July 26, 2017.
Similar legislation, H.R. 428, was introduced in the House
of Representatives by Representative Thornberry on January 10,
2017. On February 14, 2017, H.R. 428 passed the House of
Representatives by a vote of 250-171.
In the 114th Congress, similar legislation, S. 1153, was
introduced by Senator Cornyn and referred to the Energy and
Natural Resources Committee.
Similar legislation, H.R. 2130, was introduced by
Representative Thornberry in the House of Representatives on
April 30, 2015, and referred to the Natural Resources
Committee. The Natural Resources Committee favorably reported
H.R. 2130 on September 10, 2015, by a vote of 21-11 (H. Rept.
114-327). On December 9, 2015, H.R. 2130 passed the House of
Representatives by a vote of 253-177.
In the 113th Congress, S. 2537 was introduced by Senator
Cornyn on June 26, 2014, and referred to the Energy and Natural
Resources Committee.
Similar legislation, H.R. 4979, was introduced by
Representative Thornberry in the House of Representatives on
June 26, 2014, and referred to the Natural Resources Committee.
The Natural Resources Committee favorably reported H.R. 4979 on
November 19, 2014 (H. Rept. 113-700).
The Senate Committee on Energy and Natural Resources met in
open business session on October 2, 2018, and ordered S. 90
favorably reported.
COMMITTEE RECOMMENDATION
The Senate Committee on Energy and Natural Resources, in
open business session on October 2, 2018, by a majority voice
vote of a quorum present, recommends that the Senate pass S.
90. Senators Cantwell, Stabenow, Heinrich, and Smith asked to
be recorded as voting no.
SECTION-BY-SECTION ANALYSIS
Sec. 1. Short title
Section 1 provides a short title.
Sec. 2. Definitions
Section 2 defines key terms.
Sec. 3. Survey of south bank boundary line
Subsection (a) directs the Secretary of the Interior
(Secretary), within two years of enactment, to commission a
survey of the South Bank boundary line using the gradient
boundary survey method and surveyors that are selected by and
operating under the Texas GLO and the Oklahoma LO. This
subsection further directs the Texas GLO to consult with each
affected Federally recognized Indian Tribe and the Oklahoma LO
to consult with the State of Oklahoma's attorney general and
each affected Federally recognized Indian Tribe. It further
requires the survey to be completed not later than 2 years
after the date of enactment.
Subsection (b) requires the Secretary, within 60 days of
the survey's completion, to submit the survey to the Texas GLO
and the Oklahoma LO for approval and provides the Texas GLO and
the Oklahoma LO 60 with days to make a determination on the
survey. This subsection also directs the Texas GLO to consult
with each affected Federally recognized Indian Tribe and the
Oklahoma LO to consult with the State of Oklahoma's attorney
general and each affected Federally recognized Indian Tribe.
This subsection further requires surveys of individual
parcels to be conducted in accordance with this section,
including the timing for approval and consultation
requirements. This subsection also makes clear that the survey
of the boundary line and the individual parcel surveys do not
need to be approved by the Secretary.
Subsection (c) directs the Texas GLO and the Oklahoma LO,
to submit to the Secretary, within 60 days of a survey's
approval for an individual parcel, a notice of approval and a
copy of the survey and any related field notes. This subsection
also requires the Secretary to notify adjacent landowners of a
survey's approval for an individual parcel within 30 days of
receiving the notice of approval and provide a copy of the
survey and any related field notes.
Sec. 4. Effect of act
Section 4 makes clear that nothing in the bill modifies any
interest of the States of Oklahoma or Texas, or the
sovereignty, property, or trust rights of any Federally
recognized Indian Tribe, to land north of the South Boundary
line as established by the survey; modifies land patented under
the Color of Title Act (43 U.S.C. 1068); modifies the Red River
Boundary Compact; creates or reinstates any Indian reservation;
or alters mineral interests held by the State of Oklahoma and
certain Indian tribes.
Sec. 5. Authorization of appropriations
Section 5 authorizes $1 million to carry out this
legislation.
COST AND BUDGETARY CONSIDERATIONS
The following estimate of the costs of this measure has
been provided by the Congressional Budget Office:
S. 90 would authorize the appropriation of $1 million for
the Bureau of Land Management (BLM) to commission a survey to
identify the boundary between federal and nonfederal lands
along the Red River in Texas and Oklahoma. The bill would
require officials from those states to select licensed
surveyors. Under the bill, BLM would submit the results of the
survey to state officials for approval; federal approval would
not be required. Assuming appropriation of the authorized
amounts, CBO estimates that implementing S. 90 would cost $1
million.
Enacting S. 90 could affect direct spending; therefore,
pay-as-you-go procedures apply. Under current law, 100 percent
of the receipts (which are recorded in the budget as reductions
in direct spending) from mineral leasing on the affected
federal lands are distributed without further appropriation to
the Kiowa, Comanche, and Apache tribes and to the state of
Oklahoma. Those amounts totaled less than $50,000 in 2018. Any
reclassification of lands resulting from the survey could
affect the amount of receipts collected and distributed
thereafter. However, because any change in receipts would be
offset by an equal change in direct spending, CBO estimates
that the net effect on direct spending would be negligible.
Enacting the bill would not affect revenues.
CBO estimates that enacting S. 90 would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2029.
S. 90 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
The CBO staff contact for this estimate is Janani
Shankaran. The estimate was reviewed by H. Samuel Papenfuss,
Deputy Assistant Director for Budget Analysis.
REGULATORY IMPACT EVALUATION
In compliance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee makes the following
evaluation of the regulatory impact which would be incurred in
carrying out S. 90. The bill is not a regulatory measure in the
sense of imposing Government-established standards or
significant economic responsibilities on private individuals
and businesses.
No personal information would be collected in administering
the program. Therefore, there would be no impact on personal
privacy.
Little, if any, additional paperwork would result from the
enactment of S. 90, as ordered reported.
CONGRESSIONALLY DIRECTED SPENDING
S. 90, as ordered reported, does not contain any
congressionally directed spending items, limited tax benefits,
or limited tariff benefits as defined in rule XLIV of the
Standing Rules of the Senate.
EXECUTIVE COMMUNICATIONS
The testimony provided by the Department of the Interior at
the July 26, 2017, hearing on S. 90 follows:
Statement of John Ruhs, Acting Deputy Director of Operations, Bureau of
Land Management, Department of the Interior
s. 90, red river gradient boundary survey act
Thank you for the opportunity to present the views of the
Department of the Interior on S. 90, the Red River Gradient
Boundary Survey Act. S. 90 addresses a complex set of issues
concerning the location of the southern boundary of the public
domain along the Red River, which since the early 1800s has
eluded final resolution. Enacting legislation would be a
constructive approach toward long-term resolution of the Red
River issues, and the Department supports the overall intent of
the bill--obtaining certainty on the location of federal land
in relation to adjacent private land.
Along approximately 116 miles of its length, the southern
bank of the Red River (as defined by the Supreme Court in 1923)
forms the boundary between Federal and non-Federal lands. The
vegetation line as described in the Red River Boundary Compact
establishes the state line between Oklahoma and Texas. Because
of treaties between the United States and Spain that followed
the Louisiana Purchase, and the 1867 treaty between the U.S.
and three American Indian Tribes that established the Kiowa,
Comanche, and Apache (KCA) reservation, there remains a 116-
mile strip of public domain land that lies between the medial
line and the southern bank of the Red River, from the North
Fork of the river east to the 98th Meridian. Under the Act of
June 12, 1926, specific percentages of the fluid mineral
development royalties on that public domain are deposited into
a trust account for the KCA, with the remaining percentage
going to the State of Oklahoma.
Identification of the exact boundaries of the public lands
along the Red River is challenging for a multitude of reasons.
The Department has attempted to survey portions of the area in
order to identify the boundaries of certain Indian allotments.
S. 90 requires the Secretary of the Interior to commission
and fund a gradient boundary survey along 116 miles of the Red
River. The survey would be conducted by surveyors that are
selected jointly by and operating under the joint direction of
the Texas General Land Office and both the Attorney General of
the State of Oklahoma and Oklahoma Commissioners of the Land
Office, in consultation with each affected federally recognized
Indian tribe. Surveyors will also survey individual parcels and
identify property boundaries of private parties' property
interests. Once conducted, these surveys would be submitted for
approval to the specified Texas and Oklahoma authorities. The
surveys would not be submitted to the Secretary for approval.
After receiving a notice from specified Texas and Oklahoma
authorities of the approval of a survey related to an
individual parcel, the Department would be required to identify
and provide notice of the completed survey to each private
owner of land adjacent to that parcel.
The Department would like to work with the sponsor and the
Committee on a number of issues, including modifications to
provide clarity on the resolution of private property claims.
Under S. 90, the Federal contract for a survey of the South
Bank Boundary of the Red River would include surveys of
individual parcels along the river, which the States of Texas
and Oklahoma, respectively, would approve or disapprove, in
consultation with affected federally recognized tribes. We
encourage the sponsor to clarify whether the term ``individual
parcels'' refers to private lands owned in either the State of
Texas or the State of Oklahoma, as well as whether this term is
intended to include parcels allotted to individual Indians. If
it is intended to refer to the latter, there is some question
as to whether the bill--assigning approval authority for the
survey of individual parcels to the states of Texas and
Oklahoma--is consistent with the Federal government's trust
responsibilities toward these individual Indian allottees. In
any event, if ``individual parcels'' is intended to encompass
private landowners' parcels, we encourage the sponsor to
include in the legislation an appropriate mechanism for
affected private landowners to dispute surveys completed
pursuant to the legislation.
The Department further notes that section 3(c) appears to
associate completion of individual parcel surveys with a
determination of which individuals own a parcel. If a private
surveyor is expected to make determinations of individual
ownership in addition to conducting surveys of individual
parcels, the legislation and the Department's contract with the
surveyor should state this clearly, and whether the survey
authorized by this bill would supersede any prior surveys and
associated deeds.
Especially because the legislation appears to provide for
private surveyors making determinations about private property
owners' parcels, the Department would like to work with the
sponsor on modifications to ensure notification to landowners
by an appropriate agency about these determinations. Under
section 3(c)(2), within 30 days after receiving a notice of
individual parcel approval from the Texas or Oklahoma
authorities, the Secretary of the Interior is required to
provide notice of the approval to each landowner adjacent to
the individual parcel. Because the Secretary of the Interior
has no authority to survey privately owned lands that are not
coincident with a Federal boundary, the Department has no
records of private land ownership in Texas. The Texas General
Land Office and the Oklahoma Commissioners of the Land Office
have all the information needed to identify private owners of
land adjacent to any particular parcel. It may be more
appropriate for those offices to notify private property owners
in their respective states versus the Secretary of the
Interior.
The survey required by S. 90 differs in a key respect from
regular surveys that are conducted under contract with the
Department. The S. 90 survey would be performed under the
direction of the Texas General Land Office and both the
Attorney General of the State of Oklahoma and Oklahoma
Commissioners of the Land Office, in consultation with each
affected Federally recognized Indian tribe; the Secretary of
the Interior is explicitly excluded from directing and
approving the survey results.
S. 90 divests the Department of the Interior of its role as
surveyor of record to identify the boundaries of public lands,
a role it has fulfilled since the Land Ordinance of 1785 and
the Northwest Ordinance of 1787. The authority to identify the
limits of Federal ownership--in this case, the boundary between
Federal and private lands along the Red River--is a
responsibility vested in the Secretary. The purpose is to
assure that no clouds on title exist for lands conveyed out of
Federal ownership. For the past two centuries, the Federal
Government has surveyed public lands into townships and
sections (Public Land Survey System), establishing legal
records that formed the basis on which the government
transferred public land to railroads, homesteaders, and others
until 1976. The legal descriptions contained in these land
records may also form the basis for modern title records and
private real estate sales and purchases. The Department also
conducts cadastral surveys that establish the boundary between
Federal and private lands. The Department would like to work
with the sponsor on modifications to ensure that the overall
goals of the bill are achieved without divesting the Secretary
of his responsibility to review and approve associated surveys.
The Department would also like to work with the sponsor on
modifications to ensure consistency with the laws governing
Federal contracts. S. 90 requires the Secretary to enter into a
Federal contract with a contractor selected by third parties
(the Texas General Land Office and the Oklahoma Commissioners
of the Land Office, in consultation with the attorney general
of the State of Oklahoma and each affected Federally recognized
Indian tribe) to perform work that the third party directs and
approves. Generally, standard Federal contracting law requires
an agency to offer an open competition and to review the
qualifications and capacities of the firms responding to the
contractual solicitation. Moreover, it would be helpful to the
Department if S. 90 clarified the dispute resolution procedures
to be used in case a dispute arises between the contractor and
the third parties, as well as clarifying which party bears
responsibility for enforcing terms in the legislation; for
example, the two-year time period for completing the surveys.
The Department's role in evaluating whether the contractor
fully performed the terms of the contract is also unclear.
Finally, section 4 provides that nothing in the Act
modifies any interest of the States of Oklahoma or Texas, or of
any Federally recognized Indian tribe, relating to land located
north of the South Bank boundary line; modifies any land
patented under the ``Color of Title Act;'' modifies or
supersedes the Red River Boundary Compact enacted by the States
of Oklahoma and Texas and consented to by Congress pursuant to
P.L. 106-288; creates or reinstates any Indian reservation or
any portion of such a reservation; or alters any valid right of
the State of Oklahoma or the Kiowa, Comanche, or Apache Indian
tribes to the mineral interest trust fund established under the
Act of June 12, 1926. The Department encourages the sponsor to
add individual Indian allottees to the list of parties exempted
from effect of this Act. Also, we understand that the
Department of Justice would like to work with the subcommittee
to address a constitutional concern with some of the text in
the bill.
MINORITY VIEWS OF SENATORS CANTWELL AND HEINRICH
S. 90 arose out of a dispute over a boundary survey
conducted by the Bureau of Land Management along a 116-mile
stretch of the Red River, on the border between Texas and
Oklahoma, between its confluence with the North Fork of the Red
River on the west and the 98th meridian on the east.
The Red River boundary
The bed of the Red River and the uplands to the north were
acquired by the United States as part of the Louisiana Purchase
in 1803.\1\ The use of the river as a boundary has a long
history. The United States and Spain agreed to make the south
bank of the Red River the boundary between our two nations by
treaty in 1819.\2\ The south bank continued to serve as a
boundary after Mexico achieved its independence from Spain in
1821,\3\ and after Texas received its independence from Mexico
in 1836.\4\ It remained the boundary between the State of Texas
and the public lands north of the river after Texas was
admitted to the Union in 1845.\5\
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\1\Oklahoma v. Texas, 258 U.S. 574, 583 (1922).
\2\Adams-Onis Treaty, 8 Stat. 252, 254 (1819).
\3\Treaty of Limits between the United States and Mexico, 8 Stat.
372, 374 (1828).
\4\Convention between the United States and the Republic of Texas,
for marking the boundary between them, 8 Stat. 511 (1838).
\5\United States v. Texas, 162 U.S. 1, 90 (1896).
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In 1867, Congress reserved the land north of the Red River,
from its confluence with its North Fork to the 98th meridian,
for the Kiowa, Comanche, and Apache Indian tribes.\6\ But the
treaty with the tribes established ``the middle of the main
channel'' of the Red River, rather than the south bank, as the
southern boundary of the reservation.\7\ As a result, the bed
of the Red River south of the reservation boundary in the
middle of the main channel of the Red River to Texas border on
the south bank of the river, from the confluence with the North
Fork to the 98th meridian, remained in the public domain.\8\
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\6\Treaties with the Kiowa, Comanche, and Apache Tribes, 15 Stat.
581 and 589.
\7\Id. at article II, 15 Stat. at 582.
\8\Oklahoma v. Texas, 258 U.S. 574, 595 (1922).
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Congress abolished the reservation in 1900, when it
directed the Secretary of the Interior to allot the reservation
lands to tribal members, set apart some as a grazing reserve,
and open the remainder to settlement under the public land
laws.\9\ Congress abolished the grazing reserve in 1906 when it
directed that the lands be allotted to tribal members and the
remainder sold.\10\ All private landowner claims to the bed of
the Red River within the dispute 116-mile stretch rest on
disposals of the lands on the north bank under these two laws.
The Supreme Court has held that ``the disposal of lands on the
northerly bank carried with it a right of the bed of the river
as far, but not beyond, the medial line'' of the river.\11\
Congress ``intended to dispose of the upland and the northerly
half of the river bed, but nothing more.'' It retained
ownership of the river bed from the middle of the main channel
to the Texas border on the south bank.\12\
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\9\Act of June 6, 1900, 31 Stat. 672, 679.
\10\Act of June 5, 1906, 34 Stat. 213, 214.
\11\Oklahoma v. Texas, 258 U.S. at 596.
\12\258 U.S. at 595.
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Locating the boundary
Although the south bank of the Red River has served as a
boundary for nearly 200 years, the precise location of the
boundary on the south bank has often been disputed. This is
because the river bed in the disputed stretch is relatively
level and composed of loose sand. It is between a quarter of a
mile and a mile and a quarter wide. In dry seasons, only ``mere
ribbons of shallow water . . . find their way over the sand
bed, readily and frequently shifting from one side to the
other. . . .''\13\ Moreover the location of the river bed
changes over time. It moves both gradually, as soil erodes from
one bank and is deposited on the other, and sometimes
dramatically, as when it cuts a new channel during a flood. As
a result of these natural movements, the precise location of
the south bank of the Red River has changed, and continues to
change, over time.
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\13\258 U.S. at 593-594. See also Oklahoma v. Texas, 260 U.S. 606,
634 (1922).
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The difficulty in locating the boundary has generated a
great deal of litigation. In a series of cases between Oklahoma
and Texas nearly a century ago, the Supreme Court determined
that the boundary was marked by ``the water-washed and
relatively permanent elevation . . ., commonly called a cut
bank, along the southerly side of the river, which separates
its bed from the adjacent upland . . . and usually serves to
confine the waters within the bed. . . .''\14\
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\14\Oklahoma v. Texas, 261 U.S. 340, 341-342, para. 5 (1923),
previously established in Oklahoma v. Texas, 260 U.S. 606, 631-632
(1922).
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The Court then defined what has become known as the
``gradient boundary'' method to locate the precise boundary.
The south bank generally ``ranges in height from two to ten or
more feet. . . .''\15\ Where that is the case, the Court said,
the boundary is ``at the mean level attained by the waters of
the river when they reach and wash the bank without overflowing
it.''\16\ In other places, ``there is no well defined cut bank,
but only a gradual incline from the sand bed of the river to
the upland. . . .'' Here, the Court said, ``the boundary is a
line over such incline conforming to the mean level of the
waters when at other places in that vicinity they reach and
wash the cut bank without overflowing it.''\17\
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\15\Oklahoma v. Texas, 260 U.S. at 634.
\16\Oklahoma v. Texas, 261 U.S. at 342, para. 6.
\17\Id. at para. 7.
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In addition, the Court held that where the location of the
river bank changes through the natural processes of soil
erosion and deposition over time, the boundary shifts with
movement of the bank, ``but where the stream has left its
former channel and made for itself a new one through the
adjacent upland'' in a flood, the boundary does not change, but
remains where it was before.\18\
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\18\Oklahoma v. Texas, 261 U.S. 340, 341 (1923).
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``The gradient boundary line is an artificial line that
must be located and marked by a surveyor; . . . you cannot see
it. . . .''\19\ Because it cannot be seen, use of the gradient
boundary line posed practical problems as a jurisdictional
boundary. To resolve these difficulties, the Texas and Oklahoma
entered into a compact in 1999 to use the readily identifiable
vegetation line on the south bank of the Red River rather than
the gradient boundary as the boundary between them. Congress
gave its consent to the compact in January 2000.\20\ As Rep.
Thornberry, the sponsor of the consent legislation explained,
the vegetation line ``is an easily visible boundary,'' which
can be readily determined ``without the necessity of a surveyor
and a lawyer.''\21\
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\19\Hearing before the House Judiciary Committee on H.J. Res. 72,
106th Cong., at 4 (Oct. 26, 1999) (Statement of Rep. Thornberry).
\20\Public Law 106-288, 114 Stat. 919 (2000).
\21\Hearing before the House Judiciary Committee on H.J. Res. 72,
106th Cong., at 5 (Oct. 26, 1999) (Statement of Rep. Thornberry).
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Importantly, though, the compact only adopts the vegetation
line as a boundary for state jurisdictional purposes. It does
not affect private property ownership. Article VII of the
compact expressly states that the compact does not change the
title to any lands adjacent to the Red River or the boundaries
of those lands.\22\ Private property boundaries are still
governed by the earlier gradient boundary survey method.
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\22\74 Oklahoma Statutes Sec. 6106; Texas Nat. Res. Code
Sec. 12.002.
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The surveys, lawsuit, and settlement agreement
Parts of the boundary within the disputed area were
originally surveyed using the gradient boundary method between
1923 and 1924 by two surveyors commissioned by the Supreme
Court.\23\ The Court confirmed their survey and declared the
boundary line they had delineated ``to be the true boundary''
between Texas and Oklahoma, ``subject however to such changes
as may hereafter be wrought by the natural and gradual
processes known as erosion and accretion. . . .''\24\
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\23\Oklahoma v. Texas, 261 U.S. at 342, para. 12.
\24\Oklahoma v. Texas, 267 U.S. 452, 454-455 (1925).
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Meanwhile, ``[t]he United States surveyed and disposed of
[the uplands] on the north side [of the river] under its public
land and Indian laws, and Texas surveyed and disposed of [the
uplands] on the south side under her land laws. . . . Patents
were issued for practically all of the land.''\25\
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\25\Oklahoma v. Texas, 260 U.S. at 635. The Court noted that
ownership of the river bed was not disputed ``until some land on the
south side was discovered to be valuable for oil . . . . However much
the oil discovery may affect values, it has no bearing on the question
of boundary and title.'' Id. at 636.
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In 2003, the Bureau of Land Management began resurveying
portions of the Red River boundary. In doing so, its surveyors
placed survey markers far to the south of the original gradient
boundary established by the previous gradient boundary survey.
According to the new survey markers, hundreds, and in at least
one case thousands, of acres of land owned by individual Texas
landowners are now north of the new gradient boundary and thus
now owned by the United States.\26\ Several Texas landowners,
their respective county governments, the State of Texas, and
the Texas General Land Office challenged the resurvey as an
``unconstitutional and arbitrary seizure'' of private
property.\27\
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\26\Alderholt v. Bureau of Land Management, 2016 U.S. Dist. LEXIS
84090 at 7-9 (N.D. Texas 2016).
\27\Id. at 3.
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Prior to trial, the Bureau of Land Management suspended the
surveys and conceded that ``the survey methodology used was in
error,'' because the surveyors had failed to account for the
natural processes of soil erosion and deposition that the
Supreme Court long ago held must be taken into account in
accordance with the gradient boundary survey method. The Bureau
agreed to settle the case. Pursuant to the settlement
agreement, the Bureau agreed to cancel the suspended surveys,
void the new survey markers, and disclaim the map depicting the
redrawn boundary. In addition, the parties agreed that, in
conducting any future survey of the boundary, the Bureau would
apply the gradient boundary methodology and the principles
announced by the Supreme Court in the Oklahoma v. Texas
cases.\28\ The district court approved the settlement agreement
on November 8, 2017.
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\28\Settlement Agreement at 6-8.
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S. 90
S. 90 requires the Secretary of the Interior to commission
a new survey of the boundary line in the disputed area. But it
would require the survey to be carried out by surveyors chosen
by, and operating under the direction of, the Texas General
Land Office and the Oklahoma Commissioners of the Land Office,
rather than the Secretary, and it would give the power to
approve the completed survey to Texas and Oklahoma land
commissioners instead of the Secretary.
We oppose S. 90 for three major reasons. First, the bill
would overturn a valid settlement agreement that has already
resolved the dispute that gave rise to the bill. Public policy
favors settlement of litigation.\29\ As the Supreme Court
announced over a century ago, ``settlements of matters in
litigation, or in dispute, without recourse to litigation, are
generally favored.''\30\ Here, the Bureau of Land Management
admitted the error of its survey and has canceled it. The
dispute that gave rise to bill has been resolved. There is no
reason for Congress to step in now, months after the dispute
was settled, and impose a different solution from the one the
parties worked out and agreed to among themselves.
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\29\Mannion v. Department of Treasury, 429 Fed. Appx. 986, 989
(Fed. Cir. 2011). See also United States v. Contra Costa County Water
District, 678 F.2d 90, 92 (9th Cir. 1982) (invoking ``the public policy
favoring the compromise and settlement of disputes'').
\30\St. Louis Mining & Milling Co. v. Montana Mining Co., 171 U.S.
650, 656 (1898). See also Williams v. First National Bank, 216 U.S.
582, 595 (1910) (``Compromises of disputed claims are favored by the
courts.'').
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Second, S. 90 takes the authority to conduct and oversee
the survey of the public lands in the disputed area away from
the Secretary of the Interior and gives it to state officials.
``From the earliest days matters appertaining to the survey of
public . . . lands have devolved upon the Commissioner of the
General Land Office [now the Bureau of Land Management], under
the supervision of the Secretary of the Interior.''\31\ The
``power to make and correct surveys of the public lands
belongs'' to the Secretary.\32\ This power has been left to the
Secretary because ``great confusion and litigation would ensue
if [other state and federal officials] were permitted to
interfere and overthrow the public surveys on no other ground
than an opinion that they could have the work in the field
better done and divisions more equitably made than the
department of public lands could do.''\33\ Congress should
leave the task of resurvey the boundary to the Secretary of the
Interior, where it belongs.
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\31\Cragin v. Powell, 128 U.S. 691, 697-698 (1888). See 43 U.S.C.
Sec. 2 (``The Secretary of the Interior . . . shall perform all
executive duties appertaining to the surveying . . . of the public
lands of the United States. . .'').
\32\Cragin v. Powell, 128 U.S. at 699. The Secretary's
responsibility for public land surveys, ``if not an elementary
principle of our land law, is settled by such a mass of decisions of
[the Supreme Court] that its mere statement is sufficient.'' Id.
\33\Id., quoting Haydel v. Dufresne, 58 U.S. 23, 30 (1855).
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Third, S. 90 divests the Secretary of the Interior not only
of his authority to conduct, but also to approve the completed
resurvey of the disputed boundary and gives that authority to
state officials. Doing so deprives the Secretary of the
authority he needs to fulfill his obligations as ``the guardian
of the people of the United States over the public lands.''\34\
As the Supreme Court has said, ``the execution of the laws
regulating the acquisition of rights in the public lands and
the general care of these lands is confided to the'' Department
of the Interior; ``and the Secretary of the Interior, as the
head of the department, is charged with seeing that this
authority is rightly exercised to the end that valid claims may
be recognized, invalid ones eliminated, and the rights of the
public preserved.''\35\ S. 90 takes the power to fulfill that
obligation in the disputed area away from the Secretary and
gives it to state officials, who owe no such duty to the
American people as a whole.
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\34\United States ex rel. Riverside Oil Co. v. Hitchcock, 190 U.S.
316, 324 (1903). ``The Secretary is the guardian of the people of the
United States over the public lands. The obligations of his oath of
office oblige him to see that the law is carried out, and that none of
the public domain is wasted or is disposed of to a party not entitled
to it. He represents the Government, which is a party in interest in
every case involving the surveying and disposal of the public lands.''
Id.
\35\Cameron v. United States, 252 U.S. 450, 459, 460 (1920).
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Moreover, the Secretary has supervisory obligations not
just ``over all public lands,'' but also specific ``authority
to survey Indian lands.''\36\ And he has a solemn trust
responsibility to protect tribal interests.\37\ These trust
responsibilities extend to the management of Indian trust
funds, including those derived from the development of natural
resources for the benefit of Indian tribes and their
members.\38\ ``The Secretary has an `overriding duty . . . to
deal fairly with Indians.'''\39\ State officials do not.
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\36\Pueblo of Sandia v. Babbitt, 1996 U.S. Dist. LEXIS 20619
(D.D.C. 1996), citing 43 U.S.C. Sec. 2 (giving the Secretary the duty
of surveying the public lands); 25 U.S.C. Sec. 176 (directing the
Secretary, through BLM, to survey Indian lands).
\37\E.g., Washington v. Daley, 173 F.3d 1158, 1168 (9th Cir. 1998)
(stating that ``the federal government, including the Secretary, has a
trust responsibility to the Tribes''). See also Parravano v. Masten, 70
F.3d 539, 546 (9th Cir. 1995) (``We have noted, with great frequency,
that the federal government is the trustee of the Indian tribes''
rights'').
\38\25 U.S.C. Sec. 162a(d).
\39\Cobell v. Norton, 240 F.3d 1081, 1099 (D.C. Cir. 2001), quoting
Morton v. Ruiz, 415 U.S. 199, 236 (1974).
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Thus, we remain concerned that redrawing the property
boundary in the area affected by S. 90 may affect the Kiowa,
Comanche, and Apache Tribes and their members, who hold a
beneficial interest in the oil and gas receipts derived from
oil and gas production on the public lands in the area affected
by S. 90. The Act of June 12, 1926, directs the Secretary of
the Interior to deposit 62\1/2\ percent of the receipts derived
from oil and gas deposits underlying the public lands between
the middle of the main channel and the south bank of the Red
River into a trust fund for the benefit of the tribes and their
members.\40\ At the urging of Secretary Babbitt,\41\ in giving
its consenting to Texas and Oklahoma to use the vegetation line
as a jurisdictional boundary, Congress required that the
compact ``not in any manner alter the rights and interests of
the tribes and their members.\42\
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\40\44 Stat. 740.
\41\H. Rept. 106-770 at 5-6 (2000) (letter from Secretary Babbitt
to House Judiciary Chairman Hyde).
\42\Public Law 106-288, Sec. 1(d).
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We recognize that section 4(5) of S. 90 contains a similar
assurance that nothing in the bill ``alters any valid right of
. . . the Kiowa, Comanche, or Apache Indian tribes to the
mineral interest trust fund established under the Act of June
12, 1926 . . . .'' But we remain concerned that while nothing
in the bill may directly alter the right of the tribes to
receive money that is deposited in the trust fund, any
alteration of the boundary that results in the ownership of
public lands in the affected area being transferred to private
landowners may reduce the amount of money that is deposited
into the trust fund and thus, indirectly, reduce the amount of
money paid to the tribes and their members. In other words,
while the savings clause may protect the tribes' right to
receive money from the trust fund, it could be read as not
protecting the amount of money being paid into the fund if the
United States loses ownership of some of the public lands in
the affected area as a result of the new survey.\43\ Because
the new survey may affect ownership of public lands and Indian
trust funds derived from those lands, any resurvey must be
approved by the Secretary, who bears responsibility for the
public lands and for Indian trust funds, and not by state
officials who bear no such responsibility.
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\43\Moreover, as the Bureau testified at the Committee's hearing on
the bill, the savings clause only protects of the tribes, and not the
rights of individual Indian tribal members and allottees.
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Finally, we note that S. 90 was introduced on January 10,
2017, ten months before the Texas landowners and state and
local officials and the United States settled the lawsuit that
originally gave rise to the bill.\44\ We do not believe that it
was ever necessary to divest the Secretary of the Interior of
his authority over public land surveys and his ability to
protect the beneficial interests of Indian tribes and their
members in order to correct an erroneous boundary survey.\45\
We believe still more strongly that such a radical step is even
less warranted now that the erroneous survey has been withdrawn
and the parties to the dispute have agreed on how any future
surveys should be conducted.
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\44\Similarly, H.R. 428, the House companion measure to S. 90,
passed the House of Representatives on February 14, 2017, nine months
before the settlement.
\45\Cragin v. Powell, 128 U.S. 691, 697-698 (1888) (noting that
while ``mistakes and abuses ... have crept into the official surveys of
the public domain,'' the Secretary of the Interior ``is clothed with
large powers of control to prevent the consequences of inadvertence,
mistakes, irregularity and fraud'' in the public land surveys).
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For all of these reasons, we strongly oppose passage of S.
90.
SUPPLEMENTAL VIEWS OF SENATOR CORNYN
November 20, 2018.
Hon. Lisa Murkowski,
Chairman, Committee on Energy and Natural Resources, Washington, DC.
Hon. Maria Cantwell,
Ranking Member, Committee on Energy and Natural Resources, Washington,
DC.
Dear Chairman Murkowski and Ranking Member Cantwell, I
write to address remarks made during consideration of S. 90,
the Red River Gradient Boundary Survey Act, at the business
meeting held on Tuesday, October 2, 2018. During this business
meeting, Ranking Member Cantwell opined that S. 90 does not
reflect the settlement agreement reached in Aderholt et al. v.
Bureau of Land Management et al. and she does not ``believe we
should overturn the settlement, and certainly, as a result of
the settlement, there is no need for Congress to take action.''
S. 90 does not overturn or interfere with the settlement
agreement reached in November 2017. The settlement agreement
simply reaffirms that the northern boundary of private property
along the Red River between Texas and Oklahoma is governed by
the opinion of the Supreme Court in Oklahoma v. Texas, 260 U.S.
606 (1923), which establishes the gradient boundary as the only
legally defensible ownership boundary. S. 90 embraces the
Supreme Court's ruling by referencing Oklahoma v. Texas and its
principles and definitions in the bill's language.
The settlement agreement states that ``this Agreement does
not comprise the Parties'' resolution of the geographic
location of the boundary.'' It has been nearly 100 years since
Oklahoma v. Texas was decided, and the Bureau of Land
Management (BLM) has attempted to survey only a small portion
of the contested 116-mile stretch of the Red River. In fact,
BLM conceded in a March 29, 2017, letter that even these small
portions were incorrectly surveyed and failed to identify the
accurate federally mandated gradient boundary. Congressional
action is necessary to resolve this issue.
Even with the settlement agreement in place, landowners
along the Red River are left with uncertainty and clouded
titles, and the Federal government has been unable to properly
manage the land it does own. Conducting a survey using the
proper federally mandated methods and using qualified surveyors
is the only way to resolve this issue and bring certainty to
the landowners and the BLM. This is exactly what S. 90, the Red
River Gradient Boundary Survey Act, would to accomplish.
Sincerely,
John Cornyn,
U.S. Senator.
CHANGES IN EXISTING LAW
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the Committee notes that no
changes in existing law are made by S. 90 as ordered reported.
[all]