[Senate Report 115-426]
[From the U.S. Government Publishing Office]


                                                     Calendar No. 687
115th Congress       }                      {                 Report
                                 SENATE
 2d Session          }                      {                 115-426

======================================================================



 
                 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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \13\258 U.S. at 593-594. See also Oklahoma v. Texas, 260 U.S. 606, 
634 (1922).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \18\Oklahoma v. Texas, 261 U.S. 340, 341 (1923).
---------------------------------------------------------------------------
    ``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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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]