Aderholt et al v. Bureau of Land Management et al

Brief/Memorandum in Support

N.D. Tex.July 12, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS WICHITA FALLS DIVISION KENNETH ADERHOLT; PATRICK CANAN; KEVIN HUNTER; RONALD JACKSON; WILLIAM LALK; KENNETH PATTON; BARBARA PATTON; JIMMY SMITH; KENNETH LEMONS, JR., in his official capacity as Clay County Sheriff; WICHITA COUNTY, TEXAS; CLAY COUNTY, TEXAS; and WILBARGER COUNTY, TEXAS, Plaintiffs, The STATE OF TEXAS, by and through the Office of the Attorney General of Texas, and GEORGE P. BUSH, COMMISSIONER of the GENERAL LAND OFFICE of the STATE of TEXAS, Plaintiff-Intervenors, v. BUREAU OF LAND MANAGEMENT; NEAL KORNZE, in his official capacity as director, Bureau of Land Management; UNITED STATES DEPARTMENT OF THE INTERIOR; SALLY JEWELL, in her official capacity as Secretary of the Interior; and the UNITED STATES OF AMERICA, Defendants. § § § § § § § § § § § § § § § § § § § § § § § § § § § § § Civ. No. 7:15-CV-000162-O THE STATE OF TEXAS’S REPLY MEMORANDUM IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT Case 7:15-cv-00162-O-BP Document 223 Filed 07/12/17 Page 1 of 23 PageID 4602 ii TABLE OF CONTENTS Table of Contents.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 I. The State’s claim for recognition of its boundary will not be moot unless and until the surveys are invalidated and the misidentification is fully resolved. . . . 2 A. The declaration is insufficient to resolve the State’s claim. . . . . . . . . . . 5 B. Defendants’ expert surveyor’s testimony regarding the instructions the BLM gave him is relevant to this claim. . . . . . . . . . . . . . . . . . . . . . . 7 II. The BLM has a mandatory duty to ascertain the boundary of the public domain along the Red River. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 A. Both FLPMA and Oklahoma v. Texas require the BLM to conduct this survey. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 B. The statute is not discretionary because the holding of Oklahoma v. Texas makes it judicially manageable. . . . . . . . . . . . . . . . . . . . . . . . . . . 11 C. The BLM’s failure to meet Oklahoma’s requirements rebuts the presumption of lawfulness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 1. The BLM’s attempt to redefine the boundary through conjecture prioritized identification of the boundary. . . . . . . . . 14 2. The BLM ignores the clear solution that requires no funding or manpower. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Case 7:15-cv-00162-O-BP Document 223 Filed 07/12/17 Page 2 of 23 PageID 4603 iii TABLE OF AUTHORITIES Cases Page City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Heckler v. Chaney, 470 U.S. 821 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Indus. TurnAround Corp. v. NLRB, 115 F.3d 248 (4th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Lopez v. Davis, 531 U.S. 230 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Massachusetts v. EPA, 549 U.S. 497 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Norton v. S. Utah Wilderness All., 542 U.S. 55 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Oklahoma v. Texas, 260 U.S. 606 (1923). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 3, 4, 5, passim Robbins v. Reagan, 780 F.2d 37 (D.C. Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Sossamon v. Lone Star State of Texas, 560 F.3d 316 (5th Cir. 2009), aff'd sub nom. Sossamon v. Texas, 563 U.S. 277 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8 United States v. Concentrated Phosphate Exp. Ass'n, 393 U.S. 199 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5 United States v. Trans-Missouri Freight Ass’n, 166 U.S. 290 (1897). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 United States v. W. T. Grant Co., 345 U.S. 629 (1953). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Case 7:15-cv-00162-O-BP Document 223 Filed 07/12/17 Page 3 of 23 PageID 4604 iv Watervale Marine Co. v. U.S. Dep’t of Homeland Sec., 55 F. Supp. 3d 124 (D.D.C. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Statutes 5 U.S.C.A. § 701. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 § 701(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 43 U.S.C.A. § 1711.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 § 1711(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10 Case 7:15-cv-00162-O-BP Document 223 Filed 07/12/17 Page 4 of 23 PageID 4605 1 TO THE HONORABLE JUDGE REED O’CONNOR: Comes now the State of Texas, by and through the Office of the Attorney General of Texas, and files this reply in support of its motion for summary judgment and would respectfully show this Court the following: SUMMARY The Bureau of Land Management (“BLM”) instructed its surveyors to place official survey markers that misidentify the Texas/Oklahoma boundary and violate the Red River Boundary Compact (the “Compact”). The BLM now admits that the true boundary between the states is the vegetation line as established by the Compact—not where the BLM’s markers indicate the boundary lies. Nonetheless, the BLM has provided the State with no assurance that this violation will be rectified and will not reoccur. The State’s motion for summary judgment should be granted to ensure the State has an enforceable order to prevent the BLM from continuing to disregard Texas’s sovereign boundary. Additionally, the State has demonstrated that the BLM has a mandatory duty to undertake a current survey identifying the boundary of the public domain comprising the southern half of the bed of the Red River. The interplay between the Federal Land Management Policy Act (“FLPMA”) and the Supreme Court’s holding in Oklahoma v. Texas creates a mandatory duty for the BLM to conduct a current gradient boundary survey. 260 U.S. 606 (1923); 43 U.S.C.A. § 1711. The BLM refuses to acknowledge that Case 7:15-cv-00162-O-BP Document 223 Filed 07/12/17 Page 5 of 23 PageID 4606 2 its unsubstantiated claim to nearly 30,000 acres of Texas land triggered Oklahoma’s mandate to prove the boundary. Instead, the BLM disregards its duty to conduct a gradient boundary survey along the river by claiming it has discretion over whether and when to settle the disruption to ownership and jurisdiction along the river that its shocking assertions caused. The BLM is wrong because its attempted land grab made ascertaining this boundary a priority. The BLM has not shown that it lacks the funds and manpower to carry out its statutory duty. However, even if the BLM could make that showing, its argument would still fail. The BLM could satisfy its statutory duty to ascertain the boundary along the Red River with no funds or manpower by adopting the vegetation line as the boundary of public domain as Texas and Oklahoma did through the Compact. The State’s motion for summary judgment should be granted, and the BLM should be compelled to settle the border along the Red River. ARGUMENT I. The State’s claim for recognition of its boundary will not be moot unless and until the surveys are invalidated and the misidentification is fully resolved. The BLM instructed its surveyors to put official markers in the ground that incorrectly depict the Texas/Oklahoma border. In an attempt to avoid an order on the merits for failure to recognize the State’s sovereign boundary, the Defendants argue that the claim should be dismissed because there is no dispute. Defendants now assert that Case 7:15-cv-00162-O-BP Document 223 Filed 07/12/17 Page 6 of 23 PageID 4607 The State moved to supplement the record with Mr. Simmons’s testimony on the grounds that1 the record is incomplete. ECF No. 194. While some of the instructions given to Mr. Simmons are included in the record, the instructions pertaining to marking the state line have been deliberately or negligently omitted. The State also contends that its cause of action under the Declaratory Judgment Act does not limit the State to relying only on evidence in the BLM’s Revised Administrative Record. 3 they do recognize the vegetation line as the state boundary between Texas and Oklahoma, despite evidence to the contrary. The BLM also argues that it never surveyed the border between Texas and Oklahoma and lacks the authority to even do so. ECF No. 216 at 9. However, there is a single Texas/Oklahoma state boundary, and it is not where the BLM’s official survey markers placed it. Defendants’ current posture also directly contradicts the testimony of its expert surveyor, Harold Simmons: Q: So this survey, you identify the boundary of Texas and Oklahoma? A: Yes. Exhibit A, Harold Simmons’s deposition, 82:11– 83:2. Mr. Simmons further testified that he was instructed to place the markers identifying the Texas/Oklahoma border in a location that did not comply with the Compact. Id. at 276:5–20. The surveys1 conducted by another BLM surveyor, George Winter, also depict the Texas/Oklahoma border in violation of the Compact. RAR0002566–75; RAR0002577; RAR0002730–34; RAR0002768–77; RAR0002873, 75, 77, 79. The BLM suspended the surveys Mr. Winter conducted because the surveys failed to comply with the methodology espoused in Oklahoma v. Texas—to account for the natural effects of erosion, accretion, and avulsion. 260 U.S. at 636; ECF No. 168–1. However, Mr. Simmons’s surveys have not been Case 7:15-cv-00162-O-BP Document 223 Filed 07/12/17 Page 7 of 23 PageID 4608 4 suspended even though they also exceed the BLM’s authority by attempting—albeit incorrectly—to survey state lines. Defendants want to avoid adjudication of this matter. The BLM’s position even challenges the credibility of its own expert as to what he was surveying and who instructed him to do it. But the matter is not moot. Contrary to Defendants’ argument, Mr. Simmons’s testimony does not show he was identifying something other than the political boundary of the State. Rather, Mr. Simmons made clear that he knew he was incorrectly marking the state line, but he was following the BLM’s instructions. Exhibit A at 275:17–276:22. Thus, despite its lack of authority to survey state lines, the BLM instructed its surveyors to incorrectly mark the state line. RAR0003827. Until this matter is fully resolved, a dispute still remains for this Court to adjudicate. Voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave “the defendant [ ] free to return to his old ways. This, together with public interest in having the legality of the practices settled, militates against a mootness conclusion.” United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953); see, e.g., United States v. Trans-Mo. Freight Ass’n, 166 U.S. 290 (1897). “A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” United States v. Concentrated Phosphate Exp. Ass’n, 393 U.S. 199, 203 (1968). “This is a ‘heavy burden,’ which must be born by the party asserting mootness.” Sossamon v. Lone Star State of Texas, 560 F.3d 316, Case 7:15-cv-00162-O-BP Document 223 Filed 07/12/17 Page 8 of 23 PageID 4609 Mr. Doman’s declaration is not notarized or taken under oath. See Defs’ App. 742–45.2 5 324–25 (5th Cir. 2009), aff’d sub nom. Sossamon v. Texas, 563 U.S. 277 (2011). The BLM has failed to meet its burden to make it absolutely clear that this misidentification of the State’s boundary will not reoccur. In fact, without a court order, there is nothing that would prevent the federal government from taking the same action again in the future. A. The declaration is insufficient to resolve the State’s claim. The BLM offered the declaration of Charles Doman, Chief Cadastral Surveyor in the New Mexico office of the BLM, to resolve this dispute. But Mr. Doman’s2 declaration falls short of resolving the problems with the misidentification of the boundary. Central to Mr. Doman’s declaration is the suspension of three surveys conducted by George Winter that improperly demarcated the Texas/Oklahoma boundary. The BLM suspended those surveys because its surveyor failed to apply the proper methodology of Oklahoma v. Texas—not because the surveys misidentify the state boundary and exceed the BLM’s surveying authority. 260 U.S. at 638; ECF No. 168-1; RAR0003827. The suspension is silent regarding the misidentification of the Texas/Oklahoma boundary. Therefore, this issue is likely to be ignored during an investigation into the methodology of the survey. Id. Importantly, Mr. Simmons’s surveys—which have not been suspended—also misidentify the boundary, and the BLM has not indicated that those surveys will be Case 7:15-cv-00162-O-BP Document 223 Filed 07/12/17 Page 9 of 23 PageID 4610 6 suspended or invalidated. Improperly marking the state boundary without authority should warrant invalidation of each survey that demarcates the Texas/Oklahoma border. Despite the BLM’s admission that the surveys exceed its authority, the suspended surveys could still be reinstated. The suspension does not invalidate the surveys. ECF No. 168- 1. Thus, the State has no assurances regarding the future status of either the Simmons or Winter surveys that incorrectly mark the State’s boundary. Moreover, the BLM has field notes for each of these surveys that depict official survey monuments marking the Texas/Oklahoma border. RAR0002566–77; RAR0002730–34; RAR0002768–77, 79; RAR0002873, 75, 77, 79; RAR0002441–45; RAR0002467–68. The declaration is silent as to these field notes. Even if the markers were altered, the confusion regarding the border’s location would remain if the field notes and those surveys are not also invalidated. Further, Mr. Doman’s declaration makes a contingent offer to remove or alter the survey markers subject to Plaintiffs’ concurrence and this Court’s permission. Defendants’ response motion baldly extends this contingent offer of removal to Mr. Simmons’s surveys as well, but fails to support it with any declaration. ECF No. 216 at 11. The contingent offers deprive the State of any assurance that the markers will actually be removed or altered without an enforceable court order. A mere dismissal of the claim leaves the State vulnerable to having to relitigate this claim in the future. Case 7:15-cv-00162-O-BP Document 223 Filed 07/12/17 Page 10 of 23 PageID 4611 7 B. Defendants’ expert surveyor’s testimony regarding the instructions the BLM gave him is relevant to this claim. Defendants’ attempt to discount Mr. Simmons’s testimony fails. First, Defendants contend that because the State did not specifically complain about Mr. Simmons’s surveys, the surveys are irrelevant. That argument, however, ignores the State’s broad complaint regarding any misidentification of its boundary. “The federal government’s inconsistent identification of the border creates uncertainty that Texas’ sovereign border will be properly recognized.” ECF No. 70 at 7. The BLM’s contention that the State complains of failure to recognize its boundary in only one area and not in all areas is flatly incorrect. The complaint seeks termination of all affronts to Texas’s border. Second, Defendants’ attempt to diminish Mr. Simmons’s testimony by arguing that the instructions are acceptable under the public land survey system (or “PLSS”) utilized by the BLM in 30 states. This argument also fails. Defendants admit Texas is not a state that is part of the PLSS. ECF No. 216 at 11. Thus, the clear misidentification of Texas’s border on the survey markers cannot be excused under an inapplicable surveying system. And without authority to survey state lines, even marking Oklahoma’s border based on PLSS is inappropriate. These inaccurate surveys continue to threaten Texas’s established border. The BLM’s contingent offer is not enough to satisfy the State that this problem will not Case 7:15-cv-00162-O-BP Document 223 Filed 07/12/17 Page 11 of 23 PageID 4612 8 reoccur. “An official survey by the BLM is binding on all governmental officials and cannot be changed except by the BLM or a higher jurisdiction.” RAR0003093. And “the survey cannot be overturned except by another official survey or a higher authority; the survey is binding on all department officers; and the survey is often given deference by the courts.” RAR0003094. This problem will persist until it is fully remedied. The BLM’s declaration is insufficient. The State needs an enforceable court order to protect its sovereign border. A live case and controversy will exist for the Court to decide unless and until the improper surveys are invalidated and the official survey monuments are altered or removed. It is well-settled that “cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982). If defendants could eject plaintiffs from court on the eve of judgment, then resume the complained-of activity without fear of flouting the mandate of a court, plaintiffs would face the hassle, expense, and injustice of constantly relitigating their claims without the possibility of obtaining lasting relief.” Sossamon, 560 F.3d at 324. Defendants’ admissions do not deprive this Court of jurisdiction. The State’s motion for summary judgment should be granted. Case 7:15-cv-00162-O-BP Document 223 Filed 07/12/17 Page 12 of 23 PageID 4613 9 II. The BLM has a mandatory duty to ascertain the boundary of the public domain along the Red River. The State has repeatedly identified the BLM’s mandatory duty to ascertain the boundary of the public domain along the Red River with a current gradient boundary survey. The BLM is both the entity asserting changes to the boundary and the agency responsible for surveying federal land. 43 U.S.C.A. §1711(b); RAR0004240. The BLM engaged in activity to redefine the boundary of public domain—that effectively seized 30,000 acres of Texas land—by circulating its map of estimated ownership to the public. Id. Legal consequences resulting in this lawsuit flowed from the BLM’s assertions. The Supreme Court mandated that the boundary could not be established by conjecture, and the party asserting material changes has the burden of proving them. Oklahoma v. Texas, 260 U.S. at 638 (“Common experience suggests that there probably have been changes in this stretch of the Red [R]iver . . . but they cannot be merely conjectured. The party asserting material changes should carry the burden of providing them, whether they be recent or old.”). The BLM failed to take action to prove the boundary after asserting material changes. A. Both FLPMA and Oklah o m a v . T e xas require the BLM to conduct this survey. The BLM prioritized this boundary when it published its map claiming tens of thousands of acres that disrupted all assurances to ownership and jurisdiction along the 116-mile stretch of the Red River. This map served no purpose other than to redefine Case 7:15-cv-00162-O-BP Document 223 Filed 07/12/17 Page 13 of 23 PageID 4614 10 the boundary and seize land within Texas. Unlike other boundaries, this particular boundary is governed by Supreme Court precedent that specifically prohibits establishing the boundary through conjecture. Id. The BLM’s surveys and maps intended to redefine the boundary and these assertions must be proven pursuant to the Oklahoma v. Texas mandate. Id. By triggering the requirements of Oklahoma, the BLM made this boundary a priority. Thus, this case is markedly different from Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004) (“SUWA”). The State seeks to compel a discrete action—conducting a gradient boundary survey—that the BLM is required to take. This Court already determined that FLPMA’s requirements coupled with the methodology set out in Oklahoma form a discrete enforceable duty. ECF Nos. 50, 100. Likewise, FLPMA requires the BLM to ascertain the boundary of public domain, and the BLM’s surveying activity triggered Oklahoma’s requirement to prove the boundary of the public domain. RAR0003090; RAR0003681; RAR0003684; RAR00004240; 43 U.S.C.A. § 1711(b). The State seeks to compel the BLM to complete its obligation to ascertain the boundary of federal land along the Red River. The State is not asking this Court to re-prioritize the BLM’s surveying activities. The BLM’s own activity made identification of this boundary a priority. The BLM does not have discretion to walk away from its legal duties now. This Court should compel the BLM to take the legally required action and ascertain the boundary. Case 7:15-cv-00162-O-BP Document 223 Filed 07/12/17 Page 14 of 23 PageID 4615 11 B. The statute is not discretionary because the holding of Oklah o m a v . T e xas makes it judicially manageable. The BLM takes inconsistent positions regarding the applicability of 5 U.S.C.A. § 701’s limitation on judicial review. It relies on § 701 when it suits it, regarding balancing factors within the agency’s expertise to set its priorities, but denies the applicability of § 701 regarding the State’s argument that the statute is not discretionary because the holding of Oklahoma removes any discretion by providing the law to apply. ECF 216 at 19, 24; 260 U.S. 636–38; Watervale v. U.S. Dep’t of Homeland Security, 55 F. Supp. 3d 124, 137–38 (D.D.C. 2014); Robbins v. Reagan, 780 F.2d 37, 45 (D.C. Cir. 1985). Even where a statute grants broad agency discretion, it “does not render the agency’s decisions completely nonreviewable under the ‘committed to agency discretion by law’ exception unless the statutory scheme, taken together with other relevant materials, provides absolutely no guidance as to how that discretion is to be exercised.” Id. at 45. Oklahoma sets forth both the gradient boundary methodology and provides that the party asserting material changes must prove those material changes. 260 U.S. at 636–38. If there is an intent to circumscribe agency discretion that has meaningful limits, there is “law to apply” under § 701(a)(2), and the agency may be required to follow that law. Heckler v. Chaney, 470 U.S. 821, 834–35 (1985). Both FLPMA and judicial precedent established in Oklahoma require the BLM to ascertain this boundary. Therefore, the law is judicially manageable and not presumed discretionary. Case 7:15-cv-00162-O-BP Document 223 Filed 07/12/17 Page 15 of 23 PageID 4616 12 The BLM offers an illogical interpretation of Oklahoma’s mandate in an effort to escape its holding. The BLM argues that it would be required to prove changes to the boundary only if it were asserting changes related to litigation. However, this is precisely the case here. The BLM asserted changes to the boundary through its surveys and the map. Plaintiffs and Plaintiff-Intervenors are challenging those assertions in this litigation. There is no question that the BLM believes it is entitled to claim Texas land as part of the federal public domain. In fact, the BLM does not deny that it is seeking ownership to vast amounts of Texas land. Yet, the BLM summarily concludes that the Supreme Court’s mandate does not apply to it because it has discretion to set its surveying priorities. But it was the BLM’s own surveying and mapping activity that resulted in this litigation and made identification of this boundary a priority. The BLM offers no persuasive rationale for its attempts to escape this duty to identify the boundary. Whatever discretion the BLM claims regarding its priorities evaporated when the BLM circulated its map estimating its claim to 30,000 acres of Texas land along the Red River and triggered the applicable federal law under Oklahoma v. Texas. C. The BLM’s failure to meet Oklah o m a ’s requirements rebuts the presumption of lawfulness. The BLM’s contention that this Court should not compel it to conduct a gradient boundary survey because its actions are presumed lawful also fails. ECF No. 216 at 20. The State rebutted this presumption. The BLM’s failure to meet Oklahoma’s legal Case 7:15-cv-00162-O-BP Document 223 Filed 07/12/17 Page 16 of 23 PageID 4617 13 requirement to prove asserted changes to the boundary is unlawful action that rebuts the presumption of lawfulness. As this Court previously reasoned, “[j]udicial precedent may function as federal law in determining whether an agency acted unlawfully.” ECF Nos. 50 at 10, 100 at 17–18 (citing Indus. TurnAround Corp. v. NLRB, 115 F.3d 248, 254 (4th Cir. 1997) (“A decision of a panel of this court becomes the law of the circuit and is binding on other panels unless it is overruled by a subsequent en banc opinion of this court or ‘a superseding contrary decision of the Supreme Court.’”). Thus, this Court should compel unlawfully withheld agency action because it conflicts with Supreme Court precedent. Further, the BLM has unreasonably delayed ascertaining the boundary under FLPMA’s requirement. The BLM prioritized this boundary when it effectively seized tens of thousands of acres of Texas land and triggered Oklahoma’s mandate. By the BLM’s own admission, conducting the requisite survey of the entire 116-mile stretch would cost approximately $1 million dollars. RAR00004216. The conditional nature of the statute requires the BLM to show that the federal government lacked $1 million dollars over a 40-year period (presumably less in prior decades) to determine the boundary of the public land along the Red River. 43 U.S.C.A. § 1711. Massachusetts v. EPA, 549 U.S. 497 (2007) (explaining that an agency can avoid a conditional duty only with a showing that the condition was not present, rather than simply ignoring the duty by failing to act); Lopez v. Davis, 531 U.S. 230, 241 (2001) (“Congress used ‘shall’ to Case 7:15-cv-00162-O-BP Document 223 Filed 07/12/17 Page 17 of 23 PageID 4618 14 impose discretionless obligations, including the obligation to provide drug treatment when funds are available.”). The BLM failed to meet this burden because it cannot show that funding has been unavailable since FLPMA’s enactment over 40 years ago. In fact, the Department of the Interior’s Office of the Inspector General report reprimands the BLM for continuous failure to identify and survey high-risk boundaries such as this even though programs are in place for annual funding. RAR00004181–85. The BLM made only a single, late request to access this funding. RAR0004214–17. Instead, the BLM argues that the State must show that the BLM has had billions of dollars at its disposal to survey all federal lands. Imposing this burden on the State to prove funding is unnecessary for two reasons: (1) the BLM already prioritized the boundary with its surveying activities and its map; and (2) no funds and manpower are necessary. 1. The BLM’s attempt to redefine the boundary through conjecture prioritized identification of the boundary. The BLM already prioritized this boundary when it attempted to redefine the boundary through conjecture. Because this is impermissible under Oklahoma—and is challenged in this litigation—the BLM must now prove its assertions. The BLM cannot simply walk away from legal questions it prompted concerning this unsettled boundary, the no-man’s land the BLM created, the diminished property values, the eroded tax base, Case 7:15-cv-00162-O-BP Document 223 Filed 07/12/17 Page 18 of 23 PageID 4619 15 the BLM’s inability to manage the land, and the loss of mineral and other natural resources that cannot be leased. 2. The BLM ignores the clear solution that requires no funding or manpower. The State’s motion for summary judgment as well as its response to Defendants’ summary judgment make clear that funding and manpower were not lacking to conduct the gradient boundary survey. The BLM has access to general appropriations, contributions, and reimbursement, as well as the special programs designed to fund high- risk, high-priority boundaries such as this. However, regardless of available resources, Defendants have no plans to conduct the requisite survey. Defendants’ response makes clear that they never intend to rectify the situation. The BLM even argues it would be a “Sisyphean effort to identify the current boundary of the southern bank” due to natural changes in the river’s flow. ECF No. 216 at 26. The BLM would prefer to leave the State and its property owners with no recourse against its land grab. There exists a simple remedy to this dispute that the BLM ignores. The BLM could ascertain the boundary with zero surveying resources by recognizing the boundary as the vegetation line established in the Compact. But the BLM does not even entertain this possibility. The gradient boundary was intended to be along the bank of the river and follow the water’s flow. The BLM previously acknowledged that the gradient boundary would be between the water’s flow and the vegetation line for the entire Case 7:15-cv-00162-O-BP Document 223 Filed 07/12/17 Page 19 of 23 PageID 4620 16 stretch. RAR0000717. But rather than recognizing the vegetation line as a suitable boundary, the BLM now chooses to make baseless arguments regarding resources it does not need to avoid the statutory duty to ascertain the boundaries of federal land it does not want to fulfill. Even the BLM’s own Cadastral Survey Handbook admits that the BLM is required to ascertain the boundary of public domain because land management activities require accurate boundary identification. RAR0003080–90. This requirement is conditioned only on funding and manpower. Yet, despite the widely accepted understanding that the public domain extends to “the water-washed and relatively permanent elevation or acclivity at the outer line of the river bed,” the BLM claims land over a mile inland from the banks of the river. Oklahoma v. Texas, 260 U.S. at 631. The BLM refuses to substantiate its claims with a survey. It treats ascertaining the true boundary as an impossible task. And it ignores that it could satisfy its statutory duty without expending any resources. The BLM’s position regarding identification of this boundary has no rational basis and renders judicial precedent and its statutory duty meaningless. The State’s motion for summary judgment should be granted. Conclusion The State is entitled to an enforceable order on the merits to ensure resolution of the BLM’s admitted misidentification of Texas’s sovereign boundary and to prevent this failure to recognize Texas’s boundary from reoccurring. Further, the BLM’s map Case 7:15-cv-00162-O-BP Document 223 Filed 07/12/17 Page 20 of 23 PageID 4621 17 claiming almost 30,000 acres of Texas land is based on conjecture and triggers the BLM’s duty to prove the boundary under both FLPMA and the holding of Oklahoma v. Texas. The BLM should not be permitted to abdicate its duties by claiming it is a Sisyphean task for which funding and manpower are lacking. The BLM could perform the requisite survey with existing funding and manpower or set the border of public domain along the vegetation line without expending any resources. Its refusal to do either is unacceptable and leaves the State with no recourse. The State’s motion for summary judgment should be granted. WHEREFORE, the State asks the Court to grant the State’s Motion for Summary Judgment against Defendants, and requests all other and further relief to which it may be entitled by law. Respectfully submitted, KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General BRANTLEY STARR Deputy First Assistant Attorney General JAMES E. DAVIS Deputy Attorney General for Civil Litigation PRISCILLA M. HUBENAK Chief, Environmental Protection Division Case 7:15-cv-00162-O-BP Document 223 Filed 07/12/17 Page 21 of 23 PageID 4622 18 /s/ Megan M. Neal MEGAN M. NEAL Assistant Attorney General State Bar No. 24043797 megan.neal@oag.texas.gov Environmental Protection Division P.O. Box 12548, MC-066 Austin, Texas 78711-2548 512.463.2012 512.320-0911 (fax) ATTORNEYS FOR PLAINTIFF- INTERVENOR THE STATE OF TEXAS Case 7:15-cv-00162-O-BP Document 223 Filed 07/12/17 Page 22 of 23 PageID 4623 19 CERTIFICATE OF SERVICE I, Megan M. Neal, hereby certify that on this the 12th day of July, 2017, a true and correct copy of the foregoing document was transmitted to the following counsel via electronic service: Bradley W. Caldwell - bcaldwell@caldwellcc.com J. Austin Curry - acurry@caldwellcc.com Robert Henneke - rhenneke@texaspolicy.com John Franklin Summers - jsummers@caldwellcc.com Atto rn e y s fo r Pla in tif f s Ken K. Slavin - kslavin@kempsmith.com Deborah Trejo - debroah.trejo@kempsmith.com Atto rn e y s fo r Plain tif f -In te rv e n o r th e Ge n e ral Lan d O ff ic e o f T e xas Jason A. Hill - jason.hill@usdoj.gov Romney .S. Philpott - romney.philpott@usdoj.gov Michelle-Ann C. Williams - michelle-ann.williams@usdoj.gov Atto rn e y s fo r De fe n d an ts /s/Megan M. Neal Megan M. Neal Case 7:15-cv-00162-O-BP Document 223 Filed 07/12/17 Page 23 of 23 PageID 4624 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS WICHITA FALLS DIVISION KENNETH ADERHOLT; PATRICK CANAN; KEVIN HUNTER; RONALD JACKSON; WILLIAM LALK; KENNETH PATTON; BARBARA PATTON; JIMMY SMITH; KENNETH LEMONS, JR., in his official capacity as Clay County Sheriff; WICHITA COUNTY, TEXAS; CLAY COUNTY, TEXAS; and WILBARGER COUNTY, TEXAS, Plaintiffs, The STATE OF TEXAS, by and through the Office of the Attorney General of Texas, and GEORGE P. BUSH, COMMISSIONER of the GENERAL LAND OFFICE of the STATE of TEXAS, Plaintiff-Intervenors, v. BUREAU OF LAND MANAGEMENT; NEAL KORNZE, in his official capacity as director, Bureau of Land Management; UNITED STATES DEPARTMENT OF THE INTERIOR; SALLY JEWELL, in her official capacity as Secretary of the Interior; and the UNITED STATES OF AMERICA, Defendants. § § § § § § § § § § § § § § § § § § § § § § § § § § § § § Civ. No. 7:15-CV-000162-O APPENDIX TO THE STATE OF TEXAS’S REPLY MEMORANDUM IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT Case 7:15-cv-00162-O-BP Document 223-1 Filed 07/12/17 Page 1 of 9 PageID 4625 Exhibit A Case 7:15-cv-00162-O-BP Document 223-1 Filed 07/12/17 Page 2 of 9 PageID 4626 l 2 3 4 5 6 7 8 9 lO ll 12 13 14 15 16 17 18 19 20 21 22 23 24 ADERHOLT: HAROLD RAY SIMMONS IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS WICHITA FALLS DIVISION KENNETH ADERHOLT, PATRICK CANAN, KEVIN HUNTER, RONALD JACKSON, WILLIAM LALK, KENNETH PATTON, BARBARA PATTON, JIMMY SMITH, KENNETH LEMONS, JR., IN HIS OFFICIAL CAPACITY AS CLAY COUNTY SHERIFF, WICHITA COUNTY, TEXAS, CLAY COUNTY, TEXAS, AND WILBARGER COUNTY, TEXAS, Plaintiffs, § § § § § § § § § § § § § § § § Page 1 THE STATE OF TEXAS, BY AND THROUGH THE OFFICE OF THE ATTORNEY GENERAL OF TEXAS, AND GEORGE P. BUSH, COMMISSIONER OF THE GENERAL LAND OFFICE OF THE STATE OF TEXAS, § CIVIL ACTION § NO. 7:15-CV-00162-0 § Plaintiff-Intervenors, vs. BUREAU OF LAND MANAGEMENT, NEIL KORNZE, IN HIS OFFICIAL CAPACITY AS DIRECTOR BUREAU OF LAND MANAGEMENT, UNITED STATES DEPARTMENT OF THE INTERIOR, SALLY JEWELL, IN HER OFFICIAL CAPACITY AS SECRETARY OF THE INTERIOR, AND UNITED STATES OF AMERICA, Defendants. § § § § § § § § § § § § § § § § ORAL DEPOSITION OF HAROLD RAY SIMMONS FEBRUARY 17, 2017 CERTIFIED TAANSCRIP"f 25 Job No. 246045 hglitigation.com Case 7:15-cv-00162-O-BP Document 223-1 Filed 07/12/17 Page 3 of 9 PageID 4627 ADERHOLT: HAROLD RAY SIMMONS Page 2 1 ORAL DEPOSITION OF HAROLD RAY SIMMONS, produced 2 as a witness at the instance of the Plaintiffs and 3 duly sworn, was taken in the above styled and 4 numbered cause on Friday, February 17, 2017, from 5 9:13 a.m. to 6:02 p.m., before Tamara Chapman, CSR, 6 CRR, RPR, in and for the State of Texas, reported by 7 computerized stenotype machine, at the Texas Public 8 Policy Foundation, 901 Congress Avenue, Austin, 9 Texas, pursuant to the Federal Rules of Civil 10 Procedure and any provisions stated on the record 11 herein. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 hglitigation.com Case 7:15-cv-00162-O-BP Document 223-1 Filed 07/12/17 Page 4 of 9 PageID 4628 ADERHOLT: HAROLD RAY SIMMONS Page 82 1 Oklahoma description on them based on the public land 2 survey system. So it would have a section township 3 range, possibly a lot. And that meander of the right 4 bank would be the southern boundary of that. 5 6 what? 7 8 Q. The southern boundary of what? "Of that" A. "Of that" being of the state of Oklahoma. Q. Isn't the state of Oklahoma defined by the 9 Red River Compact boundary? 10 A. Yes. 11 Q. Doesn't the Red River Boundary Compact 12 define the boundary of Oklahoma as the vegetation 13 line? 14 A. Yes. 15 Q. Is that what you were surveying in this? 16 A. Not the vegetation line, no. 17 Q. So if the Red River Compact defines the 18 boundary of Oklahoma's vegetation line, how are you 19 serving something different here as being the 20 boundary of Oklahoma? 21 A. I surveyed that as per my instructions, 22 and that is what I put on the ground. My 23 instructions did not say to survey the vegetation 24 line. 25 Q. So this survey, you identify the boundary hglitigation.com Case 7:15-cv-00162-O-BP Document 223-1 Filed 07/12/17 Page 5 of 9 PageID 4629 ADERHOLT: HAROLD RAY SIMMONS Page 83 1 of Texas and Oklahoma? 2 A. Yes. 3 Q. And that's different than the boundary set 4 forth on the Red River Boundary Compact. Is that 5 correct? 6 A. In places. 7 Q. Where is the part in 37 through 49 where 8 you performed the part of this survey that was a 9 gradient boundary survey? 10 A. (Reviewing document.) 11 On Page 37, as it describes the right bank 12 meanders, if we located that boundary bank and if 13 that bank had changed, we remeandered and computed a 14 gradient of that. 15 Q. Did you locate a boundary bank? 16 17 18 19 A. Yes. Q. Was it a lowest qualified boundary bank? A. Yes. Q. So you found a qualified bank? 20 A. Yes. 21 Q. How did you -- where did you start from in 22 identifying that? 23 A. As I recall at this time, we started at 24 the last known position of that boundary bank, which 25 public record, that would have been the Kidder and hglitigation.com Case 7:15-cv-00162-O-BP Document 223-1 Filed 07/12/17 Page 6 of 9 PageID 4630 ADERHOLT: HAROLD RAY SIMMONS 1 island is at least as old as the tree. 2 MR. HILL: I have no further 3 questions at this time. 4 MS. NEAL: Is there more time on 5 6 the record? THE REPORTER: Huh-uh. 7 EXAMINATION 8 BY MS. NEAL: Page 274 9 Q. I want some clarification about what you 10 were saying about the PLSS and the Oklahoma township 11 in relation to where the boundary marker -- the 12 official BLM boundary marker says it•s the Texas 13 Oklahoma border. 14 MR. HILL: And we object to -- and 15 a continuing objection to any questions you may 16 ask. We do not feel that you're entitled to any 17 discovery on your APA claims in regard to the 18 APA. 19 20 21 MS. NEAL: Okay. A. Would you restate that question? Q. What does the marker that says -- that 22 seems to indicate the Texas-Oklahoma border that we 23 discussed earlier is -- what is your opinion of where 24 the Texas-Oklahoma border is? Where your survey 25 marker is or at the vegetation line? hglitigation.com Case 7:15-cv-00162-O-BP Document 223-1 Filed 07/12/17 Page 7 of 9 PageID 4631 1 ADERHOLT: HAROLD RAY SIMMONS Page 275 A. I believe that that brass cap that you 2 showed earlier was not mine, so I would not know 3 that. That was a 2008 brass cap. 4 Q. Do you know what year that the Compact was 5 ratified by Congress? 6 A. Yes. 7 Q. What year? 8 A. 2000. 9 Q. Okay. So the brass cap marker said 2008, 10 and it depicts the Texas-Oklahoma border that is not 11 on the vegetation line. Correct? 12 A. The Compact does, yes. 13 Q. No. The brass marker. Is that on the 14 vegetation line? 15 A. I don't know. I have not been on that 16 17 one. Q. But it depicts where the BLM thinks that 18 the Texas-Oklahoma border is? 19 A. I think that BLM realizes that -- maybe I 20 should say I don't know what the BLM realizes. I 21 realize that the Compact was signed and ratified in 22 2000. The markers that I set that are marked 23 Oklahoma and Texas, that direction on how to mark 24 those comes from our field office. 25 Q. Who in your field office gave you those hglitigation.com Case 7:15-cv-00162-O-BP Document 223-1 Filed 07/12/17 Page 8 of 9 PageID 4632 ADERHOLT: HAROLD RAY SIMMONS 1 instructions? 2 A. In that time, Jay Ennis was the field 3 section chief and Jay Ennis was my immediate 4 supervisor. 5 Q. So if those markers aren't on the 6 vegetation line, then they're incorrect? 7 MR. HILL: Objection; 8 mischaracterizes his testimony. 9 MS. NEAL: I'm asking him a 10 question. MR. HILL: And I'm objecting. 11 12 A. The I marked them how I was told to Page 276 13 mark them. Is that different than the Compact? Yes. 14 Q. Okay. So you were given instructions to 15 mark a Texas-Oklahoma boundary somewhere other than 16 where it was settled by the Red River Boundary 17 Compact in 2000? 18 MR. HILL: Objection; 19 mischaracterizes his testimony. 20 A. Yes, I was instructed how to mark those. 21 MR. PHILPOTT: With that, we're 22 done. 23 (THE DEPOSITION CONCLUDED AT 6:02 P.M.) 24 25 hglitigation.com Case 7:15-cv-00162-O-BP Document 223-1 Filed 07/12/17 Page 9 of 9 PageID 4633