Red River Plaintiff Response 111716

Case 7:15-cv-00162-O Document 115 Filed 11/17/16
Page 1 of 20 PageID 1377
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION
KENNETH ADERHOLT et al.,
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,
Civ. No. 7:15-CV-000162-O
Plaintiff-Intervenor,
v.
BUREAU OF LAND MANAGEMENT
et al.,
Defendants.
RESPONSE TO DEFENDANTS EMERGENCY MOTION TO ENFORCE AND
CLARIFY THE COURTS OCTOBER 30, 2016 ORDER [ECF NO. 112] GRANTING IN
PART AND DENYING IN PART DEFENDANTS MOTION TO COMPEL
TABLE OF CONTENTS
I.
PLAINTIFFS HAVE COMPLIED WITH THE COURTS ORDER ................................1

a.
The Order is Clear and Unambiguous .........................................................................1
b.
Plaintiffs Have Fully Complied with the Order ..........................................................2
c.
Plaintiffs Have Gone Above and Beyond to Facilitate

the Inspection ..............................................................................................................4
II.
DEFENDANTS SEEK ACCESS BEYOND THE SCOPE

OF THE COURTS ORDER ..............................................................................................4
III.
DEFENDANTS MOTION EXCEEDS THE SCOPE OF

THE DISPUTED ISSUE ....................................................................................................7
IV.
CONCLUSION ................................................................................................................16
CERTIFICATE OF SERVICE ....................................................................................................17
Response to Defendants Emergency Motion

to Enforce and Clarify
Cause No. 15-CV-000162
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INDEX OF AUTHORITIES
CASE
PAGE
Oklahoma v. Texas, 260 U.S. 606 (1923) ...............................................................7, 9, 10, passim

MISCELLANEOUS
Arthur A. Stiles and Graham B. Smedley, The Gradient Boundary
The Line Between Texas and Oklahoma Along the Red River,
30 Tex. L. Rev. 305 (1952) ...................................................................................................10

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Plaintiffs oppose Defendants Emergency Motion to Enforce and Clarify the Courts
October 30, 2016 Order [ECF No. 112]. (Motion).
The Courts Order of October 30, 2016, (Order) strictly limits Defendants inspection of
the Plaintiffs properties to the Plaintiffs northern boundary that abuts the disputed southern
gradient boundary of the Red River. ECF No. 112 at 6. Defendants request for clarification is
a thinly veiled attempt to expand the Courts Order beyond its clear and unambiguous terms and
is even beyond Defendants original request, which the Court rejected. Defendants now seek global
access to the interior of Plaintiffs properties, which is neither within the scope of the Courts
Order nor disputed issues.
Plaintiffs have gone above and beyond to comply with the Order. Prevented by the Order
from inspecting the entirety of Plaintiffs properties, Defendants now seek a way around the
Courts restrictions by demanding access to portions of Plaintiffs properties that are miles from
the Red River and have no bearing on how to determine the current location of the southern
gradient boundary.
I.
PLAINTIFFS HAVE COMPLIED WITH THE COURTS ORDER

a.
The Order is Clear and Unambiguous
There is no need for the Court to clarify its Order. The northern boundary of Plaintiffs
land that abuts the southern gradient boundary of the Red River is at the center of this dispute.
ECF No. 112 at 5. As such, the Court afforded Defendants the ability to investigate this contested
area. Id. (emphasis added). The Order expressly limits Defendants inspection to the Plaintiffs
northern boundary that abuts the disputed southern gradient boundary of the Red River. Id. at 6.
Defendants are so limited because access to the whole of Plaintiffs properties would exceed the
scope of relevant discovery and impose an unreasonable burden on Plaintiffs. Id. at 5. If
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Defendants wanted to expand the inspection area to the entirety of the properties, the Court offered
the opportunity for further briefing by November 14, 2016. Id. at 6, 12. Defendants did not provide
further briefing by this deadline.1
The Order is explicit that Defendants may cross the Plaintiffs land via a designated route
and Defendants must strictly adhere to that route. Id. at 6. Defendants are required to travel
directly to the northern boundary that abuts the southern gradient boundary of the Red River. Id.
at 6-7. Defendants are prohibited from damaging or disturbing any hunting areas, feeders, or
stands. Id. at 11. These directives clearly define where Defendants may go on Plaintiffs properties
and how they may get there. The Order is not ambiguous, and therefore needs no clarification.
Again, if Defendants are unhappy with the Orders limitations, the time to address that was via
briefing to the Court on or before November 14, 2016, not cloaked as a request to clarify a clear
and unambiguous Order.
b.
Plaintiffs Have Fully Complied with the Order
Defendants have full access to the areas included in the Courts Order. Since Monday,
November 14, 2016, Plaintiffs have allowed access to the Hunter and Jackson properties, allowed
Defendants to travel along the designated routes directly to the northern boundary of the Red
River,2 and Defendants have inspected the river, river bank, and surrounding areas without
interference from the Plaintiffs. Here are the BLM Surveyors Monday morning at the southern
gradient boundary abutting the northern boundary of Plaintiff Hunters land:
Defendants Motion is untimely. In its Order, the Court limited Defendants inspection to Plaintiffs
northern boundary that abuts the disputed gradient boundary of the Red River. ECF No. 112 at 6. If Defendants
wanted access to any other area, the Court gave a deadline of November 14, 2016, for further briefing on the subject.
Id. at 12. Defendants Motion is nothing more than a belated request for access to additional areas beyond what was
allowed in the Order, and the deadline for that request has passed.
2
ECF No. 112 at 6.

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When Defendants first requested access to the interior of Plaintiffs property at Kevin
Hunters property Monday morning, Plaintiffs compromised with the Defendants and allowed
them expanded access beyond what is required under the Order. Instead of proceeding directly to
the northern boundary, Plaintiffs have allowed Defendants to stop and conduct inspections, take
photographs, and record GPS and other measurements from the path along the designated route.
This already gives Defendants access to the interior of Plaintiffs properties along the designated
road without Defendants cutting across Plaintiffs hunting area, pastures, and open grasslands.
Recognizing the importance of an efficient discovery process, Plaintiffs have not objected to the
inspections continuing while the Court considers Defendants Motion.

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c.
Plaintiffs Have Gone Above and Beyond to Facilitate the Inspections
Beyond the requirements of the Courts Order, Plaintiffs have also taken additional steps
to ensure the inspections proceed on schedule. For example, on Monday, November 14,
Defendants arrived on Plaintiff Hunters property with eight people but only a two-seat all-terrain
vehicle. Plaintiffs attorney Robert Henneke gave them a ride to the bank of the river because it
was a several mile hike. Defendants arrived similarly unprepared on Wednesday, November 16,
and Plaintiff Jackson drove them through his property to the river, saving Defendants hours of
walking along a trail Plaintiff Jackson cut specifically to give Defendants easier access to the river.
However, Defendants now demand expanded access to portions of the Plaintiffs properties
that are far beyond the northern boundary that abuts the southern gradient boundary of the Red
River. In the case of Plaintiff Hunter, Defendants want to go 1.7 miles south of the river. Plaintiffs
have been more than reasonable in making compromises and concessions to facilitate the ongoing
inspections, but their good faith cannot extend to the blatant violation of the limitations set by this
Court in the Order.
II.
DEFENDANTS SEEK ACCESS BEYOND THE SCOPE OF THE COURTS

ORDER
In their Motion, Defendants seek access to the interior of Plaintiffs properties in order to
trace and re-examine the boundary lines identified by a prior BLM survey and to inspect
topographic features or elevations between the Kidder and Stiles boundary line and the location
of flowing water [which] requires traversing along the feature. ECF No. 113 at 3. This is even

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beyond Defendants original request in their Motion to Compel.3 The Court has already rejected
both.4
The Courts Order limits Defendants to the northern boundary that abuts the southern
gradient boundary of the Red River. ECF No. 112 at 6. Yet Defendants now want global access
to Plaintiffs properties, which the Court has already refused. Defendants want to inspect not only
the area adjacent to the northern boundary of the Plaintiffs properties, but also as far south as the
1923 Kidder and Stiles boundarymiles inland on some propertiesand everything in between.
The Courts Order precludes this request. ECF No. 112 at 6.
According to Defendants, access to the 1923 Kidder and Stiles boundary line, as well as
everything between that line and the river, is necessary to help Defendants in their search for
potential banks. Motion at 3. This boundary is nearly two miles away from the river. On
November 14, while standing next to the Red River, Defendants asked Plaintiffs counsel to go
miles into the interior of the Plaintiffs properties to locate the bank of the Red River.
The 1923 Kidder and Stiles boundary line, together with the land between that line and the
river, constitute the majority of the properties. For example, on Plaintiff Hunters property
Defendants seek access to over 75% of the property by wanting access all the way to the 1923
Kidder and Stiles boundary line:
Defendants are not seeking unlimited access: they are merely seeking to walk the boundaries of the
Individual Plaintiffs properties. ECF No. 111 at 7.
4
It is not clear how the remaining portions of Plaintiffs land is relevant or would assist Defendants in
understanding Plaintiffs claims or preparing a defense. Individual Plaintiffs land includes thousands of acres and
granting access to every boundary would exceed the scope of relevant discovery and impose unreasonable burden on
Plaintiffs. Order at 5. Defendants are prohibited from damaging or disturbing any animals, hunting areas, feeders or
stands. Id. at 11.
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5

PLAINTIFF KEVIN HUNTERS PROPERTY
APPROX. 1.7 MILES
RED RIVER
1923 KIDDER AND

STILES BOUNDARY
MARKER
B
KEVIN HUNTERS HOUSE

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If Defendants can roam over all the property between the Kidder and Stiles boundary line
and the location of flowing water in the stream in search of potential banks,5 Defendants will
effectively have access to the entirety of Plaintiffs properties, rendering the Courts reasoned
limitations on the scope of inspection illusory.
The 1923 Kidder and Stiles boundary line, the prior erroneous BLM survey lines, and the
topographical features between the Kidder and Stiles boundary line and the Red River are all
beyond the northern boundary that abuts the disputed gradient boundary of the Red River and
outside the scope of the Order. On some properties, granting this access would put Defendants
practically at the Plaintiffs back door. Recognizing that an inspection of land is inherently more
intrusive and burdensome than more traditional forms of discovery, the Court set reasonable
conditions on Defendants inspections. ECF No. 112 at 10. Defendants must now be held to those
conditions.
III.
DEFENDANTS MOTION EXCEEDS THE SCOPE OF THE DISPUTED ISSUE.

Defendants seek access to areas that are not relevant to the issue of this case. This case is
about the proper method for locating the southern gradient boundary of the Red River. ECF No.
86 at 25. The Supreme Court tells us that the southern gradient boundary is the water-washed and
relatively permanent elevation or acclivity at the outer line of the river bed which separates the
bed from the adjacent upland. Oklahoma v. Texas, 260 U.S. at 632. Because the areas Defendants
want access tomiles south of the actual river and certainly not water-washedhave no bearing
on the determination of the southern gradient boundary, Defendants demands are unreasonable
and overly burdensome.
Motion at 3.
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As illustrated above, the 1923 Kidder and Stiles survey marker on Plaintiff Hunters
property in Wichita County is approximately 1.7 miles from the waters of the Red River. This
Court ordered the Defendants to proceed directly to the northern boundary that abuts the southern
gradient boundary of the Red River and to restrict their survey to the disputed area. ECF No.
112 at 6-7. Despite the Courts clear instructions, during the inspection of Plaintiff Hunters
property on November 14, 2016, Defendants demanded to begin their survey not at the Red River,
but at the 1923 Kidder and Stiles survey markerin the midst of a pasture that cannot rationally
be considered the river, river bed, or river bank. Although Defendants position is that the qualified
bank is not necessarily the high mark adjacent to the water, Defendants actions reflect an
inclination to look everywhere but the water for this qualified bank.
In 1923, the location of the Kidder and Stiles marker indicated the southern gradient
boundary of the Red River on Plaintiff Hunters land. Monday, Plaintiffs attorney Henneke took
the following picture standing at the 1923 boundary marker and facing the direction of the river.
As the Court can see, this area now includes mature trees, shrubs, and extensive grass coverage.
The waters of the Red River area not even visible. This picture was taken at approximately point
B on the map above.

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HUNTER PROPERTY
B
This area is not within the bank as defined by the Supreme Court in Oklahoma v. Texas,
260 U.S. 606 (1923), and is therefore not part of the disputed area.
Defendants believe wrongly that the 1923 boundary is still controlling, and that the
location of the qualified bank stays in place no matter how the river moves. However, the Supreme
Court squarely rejected this argument in Oklahoma v. Texas, stating that the boundary follows
the varying course of the stream. Id. at 636. The qualified bank is water-washed and on or
along the bank at the average or mean level attained by the waters in the periods when they reach
and wash the bank without overflowing it. 260 U.S. at 631-2. Stiles himself later wrote that [t]his
work amounted to fitting the opinion to the river. It clearly indicated that a gradient of the flowing
water in the river was the only possible datum for locating this boundary upon the ground in
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thorough compliance with the requirements of the Court. In this way, the gradient boundary was
laboriously worked out on foot, bank by bank, on the Red River. Arthur A. Stiles and Graham B.
Smedley, The Gradient Boundary The Line Between Texas and Oklahoma Along the Red River,
30 Tex. L. Rev. 305, 308 (1952). The Courts repeated reference to the water water-washed
and wash the bank and subsequent others show that the location of the qualified bank and
therefore the southern gradient boundary must have some proximity to the water of the Red River.
The southern gradient boundary is inextricably linked to the flow of the Red River itself.
The river is not located in the same place today as it was in 1923, made obvious by the fact that
the 1923 marker on Plaintiff Hunters property is now approximately 1.7 miles from the river.
Both title and jurisdictional boundaries follow the natural and gradual progression of the river as
it changes through accretion and erosion. Id. at 636. The 1923 Kidder and Stiles boundary line is
irrelevant to the location of the southern gradient boundary today, and Defendants request to
access that area and all the land between it and the river far exceeds the scope of relevant discovery
and imposes an unreasonable burden on the Plaintiffs.
In Oklahoma v. Texas, the Supreme Court defined the bank which constitutes the boundary
between Oklahoma and Texas, as described in the 1819 Adams-Ons treaty with Spain:
[W]e hold that the bank intended by the treaty provision is the waterwashed and relatively permanent elevation or acclivity at the outer
line of the river bed which separates the bed from the adjacent
upland, whether valley or hill, and serves to confine the waters
within the bed and to preserve the course of the river, and that the
boundary intended is on and along the bank at the average or mean
level attained by the waters in the periods when they reach and wash
the bank without overflowing it. When we speak of the bed we
include all of the area which is kept practically bare of vegetation by
the wash of the waters of the river from year to year in their onward
course, although parts of it are left dry for months at a time; and we
exclude the lateral valleys, which have the characteristics of
relatively fast land and usually are covered by upland grasses and
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vegetation, although temporarily overflowed in exceptional

instances when the river is at flood.
The conclusion that the boundary intended is on and along the bank
and not at low-water mark or any other point within the river bed
has full confirmation in available historical data respecting the
negotiations which attended the framing and signing of the treaty.
Oklahoma v. Texas, 260 U.S. 606, 631-2 (1923). The Court went on to say that the boundary
intended is on the bank. Id. at 623. Further, the banks of the river are neither the ranges of
bluffs which mark the exterior limits of the valley, nor the low shifting elevations within the sand
bed. Id. at 635.
Defendants also want to include Plaintiff Hunters pastures in their search for the qualified
bank, which the Supreme Court also determined not to be federal territory. The pictures below
were taken at approximately point C on the map above, and again show pastures with mature
trees and grasses.
HUNTER PROPERTY
(FACING NORTH)
C
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11
HUNTER PROPERTY
(FACING WEST)
C
The Supreme Court exclude[s] the lateral valleys, which have the characteristics of
relatively fast land and usually are covered by upland grasses and vegetation, although temporarily
overflowed in exceptional instances when the river is at flood. Oklahoma v. Texas, 260 U.S. at
632. Even at flood stage, the river does not reach this area. Defendants do not need free access to
roam this area, 1.7 miles from the water of the Red River, to determine whether it is waterwashed by the waters of the river.
The river bed and bank are not difficult to identify on the Hunter property. The pictures
below were taken at approximately point A on the map above:

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HUNTER PROPERTY
When we speak of the bed we

include all of the area which is
kept practically bare of vegetation
by the wash of the waters of the
river Oklahoma v. Texas, 260
U.S. 606, 632 (1923).
A
This is clearly the visible area kept practically bare of vegetation by the wash of the waters
of the river. Oklahoma v. Texas, 260 U.S. at 632. This is also the bank which serves to confine
the waters within the bed and to preserve the course of the river. Id.

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HUNTER PROPERTY
This bank serves to confine the
waters within the bed and to
preserve the course of the river.
Oklahoma v. Texas, 260 U.S. 606,
632 (1923).

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14
HUNTER PROPERTY
This is the water-washed

and relatively permanent
elevation or acclivity at the
outer line of the river bed
which separates the bed
from the adjacent upland.
Oklahoma v. Texas, 260
U.S. 606, 631-2 (1923).
A
The Supreme Court concluded that the cut bank along the southerly side of the sand bed
constitutes the south bank of the river, and that the boundary is on and along that bank at the mean
level of the water, when it washes the bank without overflowing it. Id. at 636.
Defendants would have this Court believe that to locate the qualified bank, which in turn
defines the southern gradient boundary, it must begin looking for that bank 1.7 miles inland from
the waters of the Red River. Motion at 2. But the location of the southern gradient boundary as
it was in 1923 is both legally and factually irrelevant and has never been at issue in this case. What
is at issue in this case is correct method for determining the location of that boundary
approximately 93 years later.

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IV.
CONCLUSION
Plaintiffs have followed this Courts Order, compromising with Defendants where
possible, but Defendants here ask for access that the Court has already denied as unreasonable and
unduly burdensome. Defendants have arrived each morning underprepared for accessing the
northern boundaries of the Plaintiffs properties, and in the case of Plaintiff Ron Jacksons property
on November 16, 2016, Defendants spent only half a day on the property and did not examine the
entire river frontage.
Rather than focus their discovery on the relevantCourt-approved areas around the
Plaintiffs northern boundary that abuts the disputed southern gradient boundary of the Red
RiverDefendants have instead chosen to waste time taking GPS measurements and pictures of
trees while waiting for this Court to give them access to irrelevant portions of Plaintiffs properties.
A pasture located over a mile and a half away from the Red River is simply not relevant to
Defendants search for the qualified bank of the Red River, therefore Plaintiffs respectfully request
this Court deny Defendants Motion.
Respectfully submitted,
/s/Robert Henneke
ROBERT HENNEKE
Texas Bar No. 24046058
rhenneke@texaspolicy.com
CHANCE WELDON
cweldon@texaspolicy.com
TEXAS PUBLIC POLICY FOUNDATION
Center for the American Future
901 Congress Avenue
Austin, Texas 78701
Telephone: (512) 472-2700
Facsimile: (512) 472-2728

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Bradley W. Caldwell
bcaldwell@caldwellcc.com
John Austin Curry
acurry@caldwellcc.com
John F. Summers
jsummers@caldwellcc.com
CALDWELL CASSADY CURRY P.C.
2101 Cedar Springs Road, Suite 1000
Dallas, Texas 75201
Telephone: (214) 888-4848
ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing document was filed electronically in
compliance with Local Rule 5.1(d). As such, this document was served on all counsel who are
registered users of ECF on this 17th day of November, 2016.
/s/Robert Henneke
ROBERT HENNEKE

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Case 7:15-cv-00162-O Document 115 Filed 11/17/16

Page 1 of 20 PageID 1377

IN THE UNITED STATES DISTRICT COURT

Civ. No. 7:15-CV-000162-O

Case 7:15-cv-00162-O Document 115 Filed 11/17/16

Page 2 of 20 PageID 1378

PLAINTIFFS HAVE COMPLIED WITH THE COURTS ORDER ................................1

The Order is Clear and Unambiguous .........................................................................1

Plaintiffs Have Fully Complied with the Order ..........................................................2

Plaintiffs Have Gone Above and Beyond to Facilitate

DEFENDANTS SEEK ACCESS BEYOND THE SCOPE

DEFENDANTS MOTION EXCEEDS THE SCOPE OF

CERTIFICATE OF SERVICE ....................................................................................................17

Response to Defendants Emergency Motion

Case 7:15-cv-00162-O Document 115 Filed 11/17/16

Page 3 of 20 PageID 1379

Oklahoma v. Texas, 260 U.S. 606 (1923) ...............................................................7, 9, 10, passim

Response to Defendants Emergency Motion

Case 7:15-cv-00162-O Document 115 Filed 11/17/16

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PLAINTIFFS HAVE COMPLIED WITH THE COURTS ORDER

The Order is Clear and Unambiguous

Case 7:15-cv-00162-O Document 115 Filed 11/17/16

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Plaintiffs Have Fully Complied with the Order

ECF No. 112 at 6.

Case 7:15-cv-00162-O Document 115 Filed 11/17/16

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Response to Defendants Emergency Motion

Case 7:15-cv-00162-O Document 115 Filed 11/17/16

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Plaintiffs Have Gone Above and Beyond to Facilitate the Inspections

DEFENDANTS SEEK ACCESS BEYOND THE SCOPE OF THE COURTS

Response to Defendants Emergency Motion

Case 7:15-cv-00162-O Document 115 Filed 11/17/16

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Case 7:15-cv-00162-O Document 115 Filed 11/17/16

APPROX. 1.7 MILES

1923 KIDDER AND

Response to Defendants Emergency Motion

Case 7:15-cv-00162-O Document 115 Filed 11/17/16

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DEFENDANTS MOTION EXCEEDS THE SCOPE OF THE DISPUTED ISSUE.

Case 7:15-cv-00162-O Document 115 Filed 11/17/16

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Response to Defendants Emergency Motion

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vegetation, although temporarily overflowed in exceptional

Case 7:15-cv-00162-O Document 115 Filed 11/17/16

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Response to Defendants Emergency Motion

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When we speak of the bed we

Response to Defendants Emergency Motion

Case 7:15-cv-00162-O Document 115 Filed 11/17/16

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Response to Defendants Emergency Motion