Over the last several weeks, the federal Bureau of Land Management has come under fire for its brazen attempt to seize approximately 90,000 acres from private landowners along the Red River. And it should.
While claiming it relies on prevailing Supreme Court precedence to determine title, the BLM redefines — to its benefit — what the southern bank of the Red River is. Under the bureau’s inexplicable definition, the southern bank would lie along a high bluff, which in many places, for many property owners, pushes the “bank” south into Texas by as much as one mile from the river itself.
Adding insult to injury, BLM offers up an olive branch: color of title.
Property owners who claim title to their property may dispute BLM’s claim to their property by filing for title under the Color of Title Act. If a claimant has maintained control of the land as an adverse possessor in good faith for more than 20 through grant or inheritance, they may file for title of the property.
The Color of Title Act is no real solution. To begin, the Secretary of the Interior, which oversees the bureau, has discretion regarding whether or not the title will be granted. But further, the maximum amount of acreage that can be awarded is 160 and a claimant must pay at least $1.25 an acre.
Though 160 acres may seem like more than enough, for the farmers and ranchers along the Red River that stand to lose upwards of 1,000 acres, being given the opportunity to purchase 160 of your own acres is no consolation and feels like a slap in the face.
Color of Title Act in and of itself implies there is an infirmity of title — specifically, that the deed or grant of the title was improper or incorrect, or that the claimant never owned the disputed property at all.
In essence, the BLM would like the landowners to file for color of title so that they will “admit” that there is a defect in their title to the entirety of their property. Only then are the landowners bestowed the possibility of purchasing a fraction of the surface estate that they rightfully own. This leaves, however, the mineral estate in the possession of the federal government.
This is not the only occasion that the BLM acquires title to mineral estates. In instances where the IRS acquires property through delinquency, the BLM is automatically sent the title to the corresponding mineral estate. When this occurs, the BLM argues that it has a fiduciary duty to the public at large regarding disposal of the mineral estate. Under this obligation, the BLM is tasked with deciding whether disposal or management of the mineral estate is in the best interest of the American populace.
Though similar to the delinquency acquisitions in that there is an automatic removal of the mineral estate, the color of title process creates a conflict of interest in the Red River property. The Red River riverbed is highly transitory — and even when the BLM is not attempting to seize property from the rightful owners, the property boundaries can shift vastly through erosion.
If the BLM determines that the best interest of the public is to obtain all of the mineral interests in the Red River valley lands, the BLM has the duty to constantly press the southern bank further into Texas, where they can strip more and more land and minerals from the hands of Texans — who, if they have filed for color of title, have admitted to having a “defective” title and subordinate claim to the United States.
Thompson is an attorney and policy analyst at Center for the American Future and the Armstrong Center for Energy and the Environment at the Texas Public Policy Foundation.