Judges: W.A. DREW EDMONDSON, Attorney General of Oklahoma
Filed Date: 9/13/1999
Status: Precedential
Modified Date: 7/6/2016
Dear Senator Robert M. Kerr
¶ 0 This office has received your request for an Attorney General Opinion addressing, in effect, the following questions:
1. May the states of Oklahoma and Texas enter an agreementthat allows each state to exercise sovereignty over lands thatpreviously were under the control of the other state, as proposedin the 47th Oklahoma Legislature's Enrolled Senate Bill 175, § 2,to be codified at 74 O.S. Supp. 1999, § 6106[
2. If states may exchange sovereign territory, may they allowlandowners in the exchanged territory to retain property rightsgranted by the original state if such property rights are notheld by other citizens similarly situated in the receiving state,as proposed in S.B. 175, § 2, to be codified at 74 O.S. Supp.1999, § 6106[
3. May the State of Oklahoma delegate to an Oklahoma Red RiverBoundary Commission designee the power to negotiate with theState of Texas on the exact location of the boundary betweenOklahoma and Texas without requiring subsequent legislativeapproval of the negotiated agreement, as provided in S.B. 175, §§2 and 3, to be codified at 74 O.S. Supp. 1999, §§ 6106[
¶ 1 Residents of the areas now known as Texas and Oklahoma have disagreed over the boundary between them for almost two centuries. A treaty between the King of Spain and the United States of America in 1819 set the original border along Oklahoma's southernmost connection with Texas as the south bank of the Red River.1 Ever since that time, through relations between and among Spain, Mexico, the Republic of Texas, the United States, the State of Texas, Indian Territory, Oklahoma Territory, and the State of Oklahoma, the parties have argued about where the river's south bank is — even to the point of arguing about which stream is the Red River.
¶ 2 Shortly after Oklahoma's statehood and a full century after the original border-making treaty, Oklahoma sued Texas in the United States Supreme Court to settle the question of where the Red River boundary between the two states lay. More than a decade of litigation and in excess of two dozen court opinions followed, ostensibly settling the matter. It did not. The states continue to have difficulty applying the treaty, statutes, and court rulings "on the ground." In an attempt to resolve the matter, the states created the Red River Boundary Commission.2 The Commission's work culminated in passage during the most recent Oklahoma and Texas legislative sessions of a proposed interstate agreement or compact concerning the border. In Oklahoma's 47th Legislature, that legislation was Senate Bill 175. In Texas's 76th Legislature, that legislation was House Bill 1355 as amended by House Bill 1587.
¶ 3 Pursuant to the Interstate Compact Clause, U.S. Const. art.
¶ 5 By its own terms, the boundary agreement contemplated by Oklahoma and Texas requires congressional approval. 74 O.S.Supp. 1999, § 6106[
[B]y the cession of territory from one State to another[,] public property and sovereignty alone pass, and . . . private property is not affected. Even in cases of conquest, as Mr. Chief Justice Marshall observes in U.S. v. Percheman, 7 Pet. 51, 87, it is unusual for the conqueror to do more than to displace the sovereign and assume dominion over the country, and the sense of justice and right, which is felt by the whole civilized world, would be outraged if private property should be generally confiscated and private rights annulled. "The people," continues the Chief Justice, "change their allegiance; their relation to their ancient sovereign is dissolved, but their relations to each other and their rights of property remain undisturbed. If this be the modern rule, even in cases of conquest, who can doubt its application to the case of an amicable cession of territory?"
Langdeau,
¶ 7 The proposed agreement between Oklahoma and Texas recognizes this rule of law:
This compact 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.
74 O.S. Supp. 1999, § 6106[
¶ 8 Landowners in the exchanged territory retain their private property. This retention of private property rights is proper.
¶ 12 These and similar instances do not constitute substantial differences. One state's highest court has said that a proposed interstate agreement needs only to be "ascertainable." Opinionof Justices,
¶ 14 For the boundary agreement within and immediately adjacent to Lake Texoma, the Oklahoma and Texas legislatures passed differently worded proposals. The Oklahoma Legislature's provision reads as follows:
From Shawnee Creek to Denison Dam, this boundary line is within the current channel of the Red River. The boundary line from Shawnee Creek to the Denison Dam may be established using the Lake Texoma Fishing and Boating Map, No. A353, published by "FHS Maps" . . ., containing acknowledgments for the data source to the United States Geological Survey and the U.S. Army Corps of Engineers, hereinafter referred to as "Reference Map". From the east bank of Shawnee Creek to the base of the Denison Dam, the boundary between the State of Oklahoma and the State of Texas may be the line which is depicted by the Reference Map as an extension of a black dashed line . . . east from the body of Lake Texoma across the depiction of the Denison Dam, thence continuing eastward until the line connects to a point at the intersection of the east bank of Shawnee Creek and the south bank of the Red River. Within Lake Texoma, this boundary line follows the south bank of the Red River as the bank was located and marked by the United States Army Corps of Engineers [. . .].
74 O.S. Supp. 1999, § 6106[
¶ 15 The Texas Legislature's version of the proposal reads as follows:
From Shawnee Creek to Denison Dam, this boundary line is within the current channel of the Red River. [. . .] Within Lake Texoma, this boundary line follows the south bank of the Red River as the bank was located and marked by the United States Army Corps of Engineers before the commencement of the construction of Lake Texoma.
Texas § 12.002 (Article II[c]). The symbol [. . .] indicates language in the Oklahoma version left out of the Texas version. Italics indicate language in the Texas version missing from the Oklahoma version.
¶ 16 While the two versions appear in different language, they do not convey different meanings. The basic rule of statutory construction is to give effect to the legislature's intention.See Jackson v. Independent School Dist. No. 16 of Payne County,
¶ 17 The other potentially major difference between the two versions occurs in the same section. Both versions of the agreement contain a directive to the appropriate state officials to "prepare a map of the boundary line." 74 O.S. Supp. 1999, §6106[
Within one year after the date the United States Congress consents to this compact, [the parties] shall:
. . . .
74 O.S. Supp. 1999, § 6106[(3) Prepare a document styled "Lake Texoma Area Boundary Agreement", which shall incorporate by reference and have attached as an exhibit a map of the boundary in the Lake Texoma area. Upon agreement, signature and acknowledgment by both [negotiators], the "Lake Texoma Area Boundary Agreement" shall have the legal effect of establishing the boundary within the Lake Texoma area. The "Lake Texoma Area Boundary Agreement", when adopted pursuant to a resolution of the Contingency Review Board acting on behalf of the State of Oklahoma and when adopted pursuant to the applicable requirements of laws of the State of Texas, shall amend the provisions of the Red River Boundary Compact and constitute part of the terms of the Red River Boundary Compact. The governors of the respective party states shall file the "Lake Texoma Area Boundary Agreement" in the state library and archives of each party state and with the Oklahoma Secretary of State [. . .].
¶ 18 The corresponding Texas provision reads:
Within one year after the date the United States Congress consents to this compact, [the parties] shall:
. . . .
(3) [. . .] file the map in the state library and archives of each party state and with the Oklahoma Secretary of State, after which the map will be a part of this compact.
Texas § 12.002 (Article II[d]). The symbol [. . .] indicates language in the Oklahoma version left out of the Texas version.Underlining indicates use of a different term between the two versions. Italics indicate language in the Texas version missing from the Oklahoma version.
¶ 19 Again, the words are different, but a fair reading of the versions shows the meaning is the same. The states will devise a map showing where the Texoma area boundary is. Oklahoma insists that this document will be called the "Lake Texoma Area Boundary Agreement." By implication, Oklahoma seems to require a verbal description of what appears on the map. Texas merely calls for a map.
¶ 20 Each of these potentially major differences is inconsequential, especially when the parties understand that constitutional law recognizes a difference between establishing
a boundary and drawing a line on a map to show where an existing boundary is. The establishment of a new boundary between two states requires congressional approval. Virginia v. WestVirginia,
¶ 22 Other legislation accompanying the proposed agreement gives each state's administrative officials the ability to negotiate implementation of the agreement:
If the State of Texas enters into the Red River Boundary Compact in substantially the form provided in Section 2 [74 O.S. Supp. 1999, § 6106[74-6106 ]] of this act, the designee of the Oklahoma Red River Boundary Commission has the authority to negotiate with the appropriate Texas representative to resolve any differences between the States of Oklahoma and Texas regarding matters covered by the compact[.]
74 O.S. Supp. 1999, § 6107[
¶ 23 This provision assumes that each state's legislature will have set policy concerning the boundary agreement as it requires the agreement to be passed "in substantially the form" passed by the other state. As shown above, such passage has occurred. The differences between the two states' acts are inconsequential matters of wording and detail of direction about maps to use. Section 6107 does not contemplate any modification of the agreement establishing the boundary outside the Texoma area as the vegetation line along the Red River's south bank, and it does not contemplate modification of the agreement retaining the boundary within the Texoma area at the river's south bank. The contemplated modifications, therefore, do not require congressional approval.
¶ 24 The answer to your fourth question, therefore, belies the question's assumption that a constitutionally meaningful modification may take place. Insofar as any modification merely shows where the boundary is on the ground rather than establishes the border, congressional approval is not required. The modifications contemplated by the legislation are of a clerical and administrative nature. Congress may approve the proposed boundary agreement because it is ascertainable.
¶ 26 Here, the legislatures of both states delegate to administrative officials the task of determining where the new border is on the ground outside the Lake Texoma area, i.e., drawing the line. The legislatures have set the policy that the boundary is "the vegetation line along the south bank of the Red River." 74 O.S. Supp. 1999, § 6106[
As used in this article:
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; and2. "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.
74 O.S. Supp. 1999, § 6106[
¶ 27 The legislatures merely have told certain administrative officials to engage in fact-finding to determine where the Oklahoma-Texas line is on the ground. The Oklahoma Legislature, by providing tremendous detail about maps to use, and both states, by defining "vegetation" and "vegetation line," have given executive branch officials all the guidance needed to carry out the policy.
¶ 28 The answer to your third question, therefore, is yes, the legislature may delegate power to draw the map of the Texas-Oklahoma line without requiring that map to return to the legislature for approval. Furthermore, the other modifications contemplated appear to be relegated to clerical matters related to wording. The legislature may delegate that function, as well.
¶ 29 It is, therefore, the official Opinion of the AttorneyGeneral that:
1. The states of Oklahoma and Texas may enter an agreementthat allows each state to exercise sovereignty over lands thatpreviously were under the control of the other state, as proposedin the 47th Oklahoma Legislature's Enrolled Senate Bill 175, § 2,to be codified at 74 O.S. Supp. 1999, § 6106[
W.A. DREW EDMONDSON ATTORNEY GENERAL OF OKLAHOMA
ANDREW TEVINGTON ASSISTANT ATTORNEY GENERAL