10/26/99 Committee on the Judiciary

SUMMARY OF COMMENTS BY

REPRESENTATIVE DAVID BRADDOCK

OKLAHOMA HOUSE OF REPRESENTATIVES

REGARDING HOUSE JOINT RESOLUTION No. 72

TESTIFYING BEFORE THE COMMERCIAL AND

ADMINISTRATIVE LAW SUBCOMMITTEE

UNITED STATES HOUSE OF REPRESENTATIVES

JUDICIARY COMMITTEE

TUESDAY, OCTOBER 26, 1999

Executive Summary

The State of Oklahoma respectfully requests that the members of the Commercial and Administrative Law Subcommittee of the Judiciary Committee support the passage of House Joint Resolution No. 72 ("Resolution") by Congressmen Thornberry, Sandlin and Watts.

The Resolution is an appropriate measure for the approval of a Red River Boundary Compact entered into between the sovereign states of Oklahoma and Texas pursuant to Article I, Section 10, Clause 3 of the Constitution of the United States of America ("Compact Clause").

The States of Oklahoma and Texas have reached an agreement regarding the use of a vegetation line along the south bank of the Red River as a practical and identifiable feature which defines the boundary between the two states along the Red River. The Compact contains a procedure for the two states to establish a boundary in an area of the Red River in which there is no vegetation because the Red River channel is located within Lake Texoma.

Approval of the Resolution by Congress, together with required Executive Branch action, will complete the process for enactment of the Red River Boundary Compact into federal law.

Approval of the Compact under the Compact Clause does not have the effect of changing title to property nor does approval of the Compact adversely affect the sovereign rights of federally recognized Indian tribes.

COMMENTARY BY STATE REPRESENTATIVE

DAVID BRADDOCK

OKLAHOMA HOUSE OF REPRESENTATIVES

DISTRICT NO. 52

TO THE SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW

JUDICIARY COMMITTEE

UNITED STATES HOUSE OF REPRESENTATIVES

REGARDING HOUSE JOINT RESOLUTION NO. 72

106^th CONGRESS, 1^ST SESSION

OCTOBER 26, 1999

Introduction

Mr. Chairman, and members of the subcommittee.

It is my pleasure to have been invited to appear before the subcommittee today and my privilege to represent the State of Oklahoma in this phase of the Congressional legislative process.

Purpose of Presentation

I appear before the subcommittee in order to provide a brief background regarding the process by which the States of Oklahoma and Texas have achieved a resolution of a troubling issue regarding the location of the border and political boundary between the two states. This issue has its genesis in some of the more important land acquisition transactions in United States history, including the Louisiana Purchase of 1803, the Treaty of Amity, Settlement and Limits of 1819, and treaties entered into between the United States government and a number of Native American tribes.

The two states believe that after approval by Congress and any required action within the Executive Branch of the federal government, the Red River Boundary Compact, as formally expressed in the legislative enactments of Oklahoma and Texas, a long standing difficulty will have been resolved.

Primary Issue Related to the Red River as the Method to Define a Political Boundary

The basic issue relates to the topographical or geological features of the Red River and the use of those features (or the terminology describing them) in the legal systems of the federal government and the two respective states. The goal of the Compact is to allow both states to determine with certainty the area over which each state may legally exercise its jurisdiction and to precisely identify its respective geographic boundary.

For most of the period relevant to the issues addressed by the Compact, the controversies over the Red River have depended for resolution upon a definition of the "south bank" of that watercourse. This does not appear to present any difficulty in theory, but the characteristics of the Red River can make even this simple definition problematic.

Geographic Characteristics of the Red River

With respect to the border between Oklahoma and Texas, the Red River extends a distance of approximately five hundred seventeen (517) miles.⁽¹⁾

The Red River flows from west to east, but areas of the river especially in the region from the 100^th meridian of West Longitude (the western border of Oklahoma) to the area where the river enters Lake Texoma are frequently dry and do not actually flow unless there has been rainfall.

In this vicinity, the area south of the middle of the river channel can consist largely of sand deposits (sometimes known as "alluvial" sand). The river carries this material from its origins eastward as it traverses the land.

Where there is not an active watercourse, the sand deposits may extend southward from the area where the river can flow until eventually the topography changes into a "soil profile". In these areas, it may be most difficult to determine an identifiable "south bank". The transition from a flat profile to a recognizable river bank may not be easily determined in these areas.

In other areas of the river, a "cut bank"-a term used to describe the way in which deposited sands are eroded by action of the river- may or may not be discernible. In areas where a cut bank does exist, it may or may not coincide with the type of "bank" described in cases decided by the United States Supreme Court. In any event, not many people have the technical resources at their disposal to determine a legal definition of a "bank" in areas like this.

In cases where one may be reasonably certain that they have located a cut bank which is also legally the "south bank" of the Red River, the river may rise, the bank is eroded and once again one must face the task of "relocating" the bank of the river after the flood has subsided.

Historical Overview of the Red River as the Political Boundary

For purposes of your consideration of House Joint Resolution No. 72, the Red River has existed as the political boundary between Oklahoma and Texas because it defined the northern boundary of the State of Texas and later the southern boundary of the State of Oklahoma. Technically, the Red River (and its south bank) could only have been the political boundary between the two states since November 16, 1907, the date upon which Oklahoma was admitted as the 46^th state of the United States-Texas having been admitted in 1845.

Reference to the Red River to define the boundary between the two states has always created some uncertainty over the precise location of the political and geographic boundaries between Oklahoma and Texas. In some instances, the uncertainty has led to litigation which has reached the highest court in the land.

U.S. Supreme Court Cases and the Gradient Boundary Method

As you have studied the issues associated with the Red River Boundary dispute you may have heard of references to a number of United States Supreme Court cases regarding the topic. Without discussing the fact situations or the judicial holdings in these very complex cases, the United States Supreme Court eventually adopted a method known as the "gradient boundary" (a land surveying field technique) to establish the existence of the "south bank" of the Red River.

The average person has enormous difficulty relying on this methodology and interpreting the judicial decisions which discuss it.

The two states were searching for a method that did not necessarily require the expertise of lawyers, surveyors, engineers and geologists. This is the primary reason the states agreed in the Compact provisions about the use of the "vegetation line". One can determine with relative ease the type of vegetation which is common to the south bank of the Red River. People who have lived in this area are very familiar with the actions of the Red River and with the impact that flooding can have on native vegetation. It is a familiar point of reference. It is discernible without any extraordinary tools or aids.

Border Dispute Resolution Process Established by Oklahoma and Texas

The two states have struggled with the border dispute for a number of years. Although there had been prior discussions about the Red River issue, Oklahoma first established a formal Red River Boundary Commission in 1991. The early efforts did not result in an agreement or anything resembling a compact.

In 1995, Oklahoma established a Red River Boundary Commission pursuant to Enrolled House Joint Resolution No. 1011. This measure re-created the Commission which had been established by the Legislature in 1991. The original Commission expired on June 30, 1994, without having made any formal recommendation regarding a method to resolve the difficulties surrounding the Red River as a political boundary.

In 1996, pursuant to Enrolled House Bill No. 2213 supported by Oklahoma House Speaker Loyd Benson, Oklahoma made its Red River Boundary Commission a permanent statutory entity. This Commission worked vigorously and met with the Texas Red River Boundary Commission in 1996, 1997 and 1998. During this period, members of both Commissions made a number of personal visits to sites along the Red River to observe the topography of the river, the physical characteristics of the land and interface of the river with its banks.

In part, the difficulty in the legal system with defining the border is related to the way in which the watercourse or channel of the Red River affects and is affected by the banks of the river.

The Oklahoma Red River Boundary Commission consists of the Attorney General of the State of Oklahoma, a designee of the Governor of the State of Oklahoma, a representative of the Kiowa, Comanche and Apache tribal land use committee, and the members of the Oklahoma State Senate and the Oklahoma House of Representatives whose districts include the land through which the Red River traverses.

The permanent Oklahoma Red River Boundary Commission ultimately recommended a "working draft" of a Red River Boundary Compact to the Oklahoma Legislature in the spring of 1999 while the Oklahoma Legislature was still in session.

Originally contained in a proposed Conference Committee Substitute for Engrossed House Bill No. 1587 of the 1^st Session of the 47^th Oklahoma Legislature, but as finally enacted in the form of Enrolled Senate Bill No. 175 of that same session, the Oklahoma Compact was a product of a true representative democratic process during our legislative session. The bill was signed by Governor Frank Keating on June 4, 1999 and was effective immediately upon the Governor's signature.

The State of Texas enacted its version of the Red River Boundary Compact pursuant to Governor George W. Bush's signature of Enrolled House Bill No. 1355 of the 76^th Texas Legislature (1999).

The Red River Boundary Compact

The statutory citation for the Oklahoma Red River Boundary Compact is 74 O.S. Supp. 1999, зз6105-6109. The text of the statutory provision containing the compact may be cited as 74 O.S. Supp. 1999, з6106. The Compact is divided into articles as follows:

Article I. Purpose

Article II. Establishment of Boundary

Article III. Sovereignty

Article IV. Pending Litigation

Article V. Public Records

Article VI. Taxes

Article VII. Property and Water Rights

Article VIII. Effective Date

Article IX. Enforcement

Article X. Amendments

The Oklahoma Compact is structured in a manner identical to the Texas Compact; however, there are some differences in the wording of the two laws.

Use of the "Vegetation Line" to Define the Border

The critical portion of the Compact is contained in Article II governing Establishment of the Boundary. In paragraphs 1 and 2 of subsection A of Article II, you will find a definition of "vegetation" and "vegetation line".

The definitions are important enough to reproduce in full:

1. "Vegetation" means, trees, shrubs, grasses, and other plant species that substantially cover the ground. Whether the vegetation substantially covers the ground is determined by reference to the density of the coverage of the ground by trees, shrubs, grasses, and other plant species in the area adjacent to the relevant portion of the riverbed; and

2. "Vegetation line" means the visually identifiable continuous line of vegetation that is adjacent to that portion of the riverbed kept practically bare of vegetation by the natural flow of the river and is continuous with the vegetation beyond the riverbed. Stray vegetation, patches of vegetation, or islands of vegetation within the riverbed that do not form such a line are not considered part of the vegetation line. Where the riverbed is entered by the inflow of another watercourse or is otherwise interrupted or disturbed by a man-made event, the line constituting the boundary is an artificial line formed by extending the vegetation line above and below the other watercourse or interrupted or disturbed area to connect and cross the watercourse or area.

These two definitions are contained in the following portion of the Compact-the wording of this part of the Compact is identical in both states:

The permanent political boundary line between the states of Oklahoma and Texas along the Red River is the vegetation line along the south bank of the Red River . . .

The Need for a Practical Boundary

After repeated attempts by both states to develop a methodology by which the boundary could be described by a latitude and longitude system, metes and bounds description and other methods, the states were able to compromise and reach agreement about the use of the tangible and visible features of this unique watercourse as a way to define the boundary. While some more complex method may be more mathematically or geographically precise, those methods are defective because they are impractical for people who need to be able to determine their location without expensive surveying equipment, geographic position satellite units and similar types of technology.

The advantage that the two jurisdictions agree upon is that persons who live near the Red River or who own or may seek to own or develop property along the Red River and those charged with the enforcement of state law can use the vegetation line as a simple method to determine where a person, an object or land is located: Oklahoma or Texas.

Texoma Area and the Agreement Authorized by the Compact

With one exception, the vegetation line will establish the boundary between the two states along the length of the Red River from the 100^th meridian of west longitude (the western border of Oklahoma with Texas running in a north-south line) to the 94^th meridian of west longitude (the eastern border of Oklahoma with Arkansas running in a north-south line).

There is one area of the border which will not be established by the vegetation line. This area is described in the Compact as the "Texoma Area". Lake Texoma, a project of the U.S. Army Corps of Engineers, was formed by capture of the waters of both the Red River and the Washita River. Within the body of Lake Texoma and for a short distance east of a structure known as the Denison Dam at the east end of Lake Texoma continuing east to a point at which Shawnee Creek flows into the Red River the two states have established a process by which a designee from each of the respective states can reach agreement about the location of the boundary in this area.

The two states are in the final stages of negotiation for this Texoma Area Boundary Agreement, which, when fully executed by both designees, will become part of the Compact itself.

The working draft of this Agreement uses points of latitude and longitude to establish an actual line within Lake Texoma which defines the boundary between the two states in that body of water and for a short distance east of the Denison Dam until the Red River exhibits its natural characteristics and the vegetation line again becomes the controlling method for establishing the boundary.

Effect of Approval

If approved, the Compact states that it does not change:

1. The title of any person or entity, public or private, to any of the lands adjacent to the Red River;

2. The rights, including riparian rights, if any, of any person or entity, public or private, that exist as a result of the person's or entity's title to lands adjacent to the Red River; or

3. The boundaries of those lands.

The Compact also specifically provides that it does not change or in any manner affect the sovereign rights of federally recognized Indian tribes over tribal lands on either side of the boundary line established by the Compact.

The Compact Clause

The States of Oklahoma and Texas having enacted the statutory provisions which identify the vegetation line as the method for establishing the boundary and having agreed upon a process to establish the boundary in the Texoma Area, Oklahoma respectfully requests that the subcommittee make a favorable recommendation to the full Judiciary Committee for passage of House Joint Resolution No. 72 in compliance with Article I, Section 10, clause 3 of the Constitution of the United States of America-the "Compact Clause".

Closing

I greatly appreciate the opportunity to have presented testimony to the subcommittee today. Thank you for your time and for your consideration of this matter. The States of Oklahoma and Texas believe that because of the geological and topographical characteristics of the Red River a perfect solution to the border issue may not ever be possible; however, with the enactment of the Compact in state statutory form and with federal approval pursuant to the Compact Clause, both states believe that future disputes can be kept to a minimum and that natural persons and business entities may be able to make more productive use of the areas around the Red River border area based upon a more legally certain and practically ascertainable method to identify the state having legal and political jurisdiction over a particular area.

On behalf of the people of my district and the people of the State of Oklahoma, I thank you sincerely for your consideration of this matter related to the sovereign powers of the State of Oklahoma.

Respectfully submitted,

Representative David Braddock

Oklahoma House of Representatives

District No. 52

1. The Western Boundary of the Red River in Oklahoma is located at 100 degrees, 44 minutes 24 seconds West Longitude (3669.7 feet west of the 100 meridian), 36 degrees 30 minutes north latitude. The Eastern Boundary of the Red River in Oklahoma is located at 94 degrees, 29 minutes 8.9 seconds West Longitude and 33 degrees, 38 minutes 17.7 seconds North Latitude.