In this part, we continue in our conversation with Davey Edwards, Texas state-licensed professional land surveyor, GLO Commissioner candidate, and expert on the federal Red River federal land grab. Last time, we discussed the legal background of the Red River boundary and how the federal government was applying improper methods in conducting their land surveys, leading to the illegal seizure of hundreds of thousands of acres in Texas by Washington. Additionally, we covered the private, state, and federal efforts to reverse this action. This time, we will go a little deeper into this issue on both the federal and state level. Be sure to read the previous two parts in this series here, and here.
Thorson: Do you believe the federal government wanted the survey to go a certain way, that maybe there was pressure on surveyors to skew things so they could find new allotments for individual families of native tribes?
Edwards: You’ve got the doctrine of accretion and erosion. If you lose land on one side, you’re going to gain land on the other. That’s just a fact and that’s just the nature of the beast for living near a river or something that would meander like that. So yeah, you can gain land and lose land, and I’m not going to say that would never happen along the river, but the way this was being processed, the way that they applied that gradient boundary method was incorrect because what they were having was the actual river itself was beyond where the boundary was being placed. What they were actually claiming was that there was actually federal land south of where the river was; and that couldn’t have happened. The only way that could’ve happened is in an evulsion. And even if it’s in an evulsion, the 2007 Red River Compact negated all those laws. So, if you had an evulsion, you’d have an immediate change in the river course, and that leaves the old channel still intact, and the new river moves to a different area, well, in the compact it was clear that the jurisdiction line will move with the new channel. It’s not common in all the other states; it’s just along the Red River between Oklahoma and Texas. So, there would never be federal land in the State of Texas. That was clear in the 1850 compromise, and it was further [made] clear through the jurisdiction between Oklahoma and Texas in 2007 Red River Compact. So, when they were making claims south of where the actual river was flowing, then you had those issues of, well, my title, if I was a Texas owner, was going to the south bank of the Red River; then [the government was] putting monuments in the ground that would be called out to be the south bank of the river, they also had monuments in the ground that were called out to be the median line of the river, which means the middle of the river. And I don’t know how many times you’ve seen the middle of the river, let’s say the Mississippi River… Can you put a monument there?
Thorson: I wouldn’t think so.
Edwards: No. It would be through water. So, for someone to [put down a] monument, to say that’s the middle of the river [and] put a monument there is ironic. You can’t do that in a regular river bed. I don’t know what the thought process behind that was, I just think they were incorrectly applying the 1923 Supreme Court decision.
Thorson: So, you just think they were mistaken?
Edwards: I honestly do. I honestly think that they did not fully understand how to apply the gradient boundary metric. Because, you have to think of one thing, and this was the clue that I took to Washington when I was talking to people, and I was talking, you know, there was people in our audience from the bureau of land management. When Col. Styles and Arthur Kidder went out and started to create the gradient boundary method, it was all used out of that Supreme Court decision. So that meant it only applied to the Red River, on the south bank of the Red River. Now, who would have more benefit out of that method than any other surveyor within the nation? And that surveyor’s within the state of Texas. Because Texas patents and titles went to that boundary, went to the south bank of the Red River. Now, the majority of Oklahoma patents, if you look at their surveys when they were originally being cut out, they stopped at the north bank of the Red River. They didn’t even have a tie to south bank of the Red River, so they didn’t even apply that method there. Now, ordinary type of application along there, or apparent boundary in a federal state is an ordinary high-water mark; it’s not the gradient boundary method. So, that’s not a scientific method, it’s a judgement call on the surveyor. He’s basically stating that the ordinary high-water mark along the bank of the river is where the where the boundary’s going to stop. So, in Texas, we have further Texas Supreme Court decisions that further solidify the gradient boundary method. And the first one was the Motl v. Boyd case, which was applied along the Brazos river. But, it’s a scientific method that can be applied to any river, because you can find those key features to define the gradient boundary, like the qualified bank, you know, the back-drains and all these other things that define it. So, Texas and Texas surveyors, we actually examine Texas surveyors to understand the 1923 Supreme Court decision, and Col. Styles wrote a detailed method. In 1956 Texas law-review, it went into detail, but it also talked about applying this method at different places at different rivers. So, we examine the surveyors coming out and practicing surveying in Texas on applying this method. So, Texas surveyors are dully qualified: they studied it, they’ve been examined on it, they practice it on and off navigable rivers. No other state does that. They use a different [method], whether it’s a low-water mark or high-water mark, or going to the center of the river; that’s the method that other states use. So, the surveyors that were surveying for the federal government, all but one of the record of surveyors were not registered in the state of Texas. And only one was registered in the state of Texas and Oklahoma, but he only produced one survey. The rest of the surveyors of record, some of them weren’t even licensed surveyors. So, I don’t know how they got their instructions. I’ve read the instructions. The solicitor general instructed these people to follow the 1923 Supreme Court decision, but there wasn’t anything that really detailed out, “You go to the high-bank bluff,” or “You go to the lowest qualified bank.” There [weren’t] any instructions on that. So, there’s no indication that I saw (now, Robert Hennekey being an attorney, he probably dug-up something, somewhere) that I thought that would indicate that they were misled or instructed to do something that they weren’t supposed to do. I just think that it was an improper method in surveying, just like you would have in any other boundary conflict, [where] one surveyor just didn’t know how to properly apply that method.
Thorson: Do you have anything to say regarding the current administration Texas General Land Office and their handling of this issue?
Edwards: I think the current administration, [George P. Bush] came into play in 2015. [The Red River case] was already in the process, the already working process. The lawsuit did come in at about the end of summer in 2015, and during that time the administration was in [turmoil]. You had all the people in the legal department that were either terminated or released and even a surveyor that I knew, that was the chief surveyor of the general land office, he was released in the summer of 2015. You had a wealth of knowledge on anything that was going on any of the subjects that were there. So, they were behind the eight-ball by letting go people of any knowledge. So, whenever they were given the opportunity to intervene in the lawsuit, they were reluctant to do so because they didn’t think they had any interest in any of that was going on up there. Although you had three counties; Wilbarger, Archer, and Wichita County; that were intervening in the lawsuit. Then you had all the private parties that were in the lawsuit. So, the State of Texas, through the general land office, was the last one to intervene in the lawsuit simply because they didn’t understand what the gravity of it was. Jerry Patterson saw it first hand; he knew it was a slam-dunk deal simply because the 2007 Red River Compact was improperly used, but he didn’t have a say in it. It was all the current administration. So, I went down and talked with the current administration, and I illustrated that you had navigable rivers that fed into the Red River. The bed of a navigable river is owned by the State of Texas under the general land office, so they have all narrows and all surface rights to the bed of the rivers; so, you’re losing several hundred acres there, but you also had this on file that was a vacancy that was found in the early 1900s that was originally 80 acres in Wilbarger county. And the river moved North since then to increase almost four-fold. That was something I introduced to them, and once they saw that and realized that they actually had something they could play and intervene in that lawsuit. Then, they did intervene in December of 2015. And during that time, I was helping with the Texas governor, which is Greg Abbott, and he had his staff direct me to Ken Paxton under the Attorney General’s [office] and I ended up helping them out, being a consult to the technical matters I have just discussed.
Edwards: One of the things that really pushed me to try to get the position of the commissioner is simply the fact that what was going on with the land office when you have a politician in the office is that they try to use it to build a political portfolio. And in this case, [George P. Bush] released a lot of people with a lot of knowledge of what goes on at the General Land Office. And the main thing about the General Land Office, their primary deal is to generate money for the department school fund, and when you’re giving up a fight, such as the Red River issue where you got at stake 90,000 acres, and that’s including the jurisdictional line, I think we need to be able to stand up against things like that. So, when you lose the knowledge of what was going on, you’re reluctant to do that, and understandably so, but it could have been avoided; those things don’t need to happen. And I think that for the first century of the Texas General Land Office, when it was incepted in 1836, most of the people, most of the commissioners that were planted or elected to that position had a first-hand knowledge of the office as being surveyors. It’s been well over a century since a surveyor last held the office in 1903, and that was John Terrell. I think that a person with the knowledge does better for those types of positions. That’s part of what I want to bring back to the office, I want to bring the integrity, I want to bring that passion back to the office, and that’s why I’m running for that office. That’s why I think Texas really needs a non-politician for the commissioner of the Texas General Land Office.