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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION
KENNETH ADERHOLT et al.,
Plaintiffs,
v.
BUREAU OF LAND
MANAGEMENT et al.,
Defendants.

Civil Action No. 7:15-cv-00162-O

ORDER
Before the Court are the State of Texass Motion to Intervene and Memorandum in Support
Thereof and Brief in Support (ECF No. 7), filed November 18, 2015; Defendants Opposition to the
State of Texass Motion to Intervene (Response) (ECF No. 28), filed December 22, 2015; and the
State of Texass Reply to Defendants Opposition to the State of Texass Motion to Intervene (ECF
No. 33), filed January 12, 2016. The State of Texas (hereinafter Texas) moves for intervention
as of right under Federal Rule of Civil Procedure 24(a)(2), and in the alternative, permissive
intervention under Rule 24(b)(1)(B). Having considered the motion, related briefing, and applicable
law, the Court finds that Texass Motion to Intervene should be and is hereby GRANTED.
I.

BACKGROUND
Plaintiffs brought the above-styled action against Defendants on November 16, 2015,

challenging the alleged unconstitutional and arbitrary seizure of approximately 90,000 acres of
private property along the Red River in Texas. See generally Compl., ECF No 1. Plaintiffs include
individual property owners (collectively, individual Plaintiffs), their respective county

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governments of Wichita, County, and Wilbarger County, Texas (collectively, County Plaintiffs),
and Clay County Sheriff Kenneth Lemons, Jr. (Sheriff Lemons) in his official capacity. Id.
Plaintiffs filed their Amended Complaint on February 9, 2016, bringing the following claims: (1)
enforcement of the Quiet Title Act, 28 U.S.C. 2409a; (2) quiet title for unsurveyed individual
Plaintiffs; (3) quiet title for County Plaintiffs; (4) declaratory, mandamus, and injunctive relief for
County Plaintiffs against Defendants for unlawful and unconstitutional acts regarding Defendants
survey methods; (5) declaratory, injunctive, and mandamus relief to determine proper survey
standards for determining the south bank and gradient boundary of the Red River; (6) declaratory,
injunctive, and mandamus relief for Sheriff Lemons; (7) declaratory, injunctive and mandamus relief
for violation of the Due Process Clause of the Fifth Amendment; and (8) declaratory, injunctive, and
mandamus relief for unreasonable seizure of property under the Fourth Amendment. See generally
Am. Compl., ECF No. 40.
The State of Texas (hereinafter Texas) seeks to intervene as a Plaintiff in this action. See
generally Mot. Intervene, ECF No. 7. Texas alleges that the Supreme Courts decision in Oklahoma
v. Texas, which the parties agree controls the United States boundary along the disputed portion of
the Red River, requires that [t]he party asserting material changes should carry the burden of
proving them, whether they be recent or old. See Tex. Reply 9, ECF No. 33 (quoting Oklahoma
v. Texas, 360 U.S. 606, 638 (1923)); Defs. Resp. 6, ECF No. 28 ((The relevant boundary of the
United States property is governed by the test set forth in Oklahoma v. Texas . . . .). Oklahoma
further establishes that Defendants must identify the land it claims by conducting a gradient
boundary survey. Tex. Mot. Intervene 10, ECF No. 7 (quoting Oklahoma, 360 U.S. at 368). Texas
argues that [t]hese important boundary considerations are not identical to the private property, law
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enforcement and taxation concerns brought by the Plaintiffs; the boundary consideration requires the
States intervention to make sure that its sovereign interests are adequately represented. Id.
Therefore, Texas moves for leave to file its Intervenor Complaint. See generally id.
Defendants timely filed their opposition (Response) to Texass motion, claiming that Texas
does not assert an adequate claim for either intervention as of right or permissive intervention under
Federal Rules of Civil Procedure 24(a) and 24(b)(1)(B), respectively. See Defs. Resp. Mot.
Intervene 69, ECF No. 28. Furthermore, Defendants assert that Texas cannot demonstrate a valid
waiver of sovereign immunity. See id. at 912.
II.

LEGAL STANDARD
A.

Fed. R. Civ. Proc. 24(a)

Rule 24 of the Federal Rules of Civil Procedure governs intervention. Rule 24(a) provides
that [o]n timely motion, the court must permit anyone to intervene who . . . claims an interest
relating to the property or transaction that is the subject of the action, and is so situated that disposing
of the action may as a practical matter impair or impede the movants ability to protect its interest,
unless existing parties adequately represent that interest. Fed. R. Civ. P. 24(a). Accordingly, to
intervene of right under Rule 24(a)(2), the Fifth Circuit requires that: (1) the intervention application
must be timely; (2) the applicant must have an interest relating to the property that is the subject of
the action; (3) the applicant must be so situated that the disposition may, as a practical matter, impair
or impede his ability to protect that interest; and (4) the applicants interest must be inadequately
represented by the existing parties. Haspel & Davis Milling & Planting Co. Ltd. v. Bd. of Levee
Commrs of the Orleans Levee Dist. & State of La., 493 F.3d 570, 578 (5th Cir. 2007); see also
Taylor Commcns Grp., Inc. v. Sw. Bell Tel. Co., 172 F.3d 385, 387 (5th Cir. 1999). Failure to
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satisfy any one requirement precludes intervention of right. Haspel & Davis, 493 F.3d at 578; see
also Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994).
B.

Fed. R. Civ. Proc. 24(b)(1)(B)

Rule 24(b)(1)(B) provides that [o]n timely motion, the court may permit anyone to intervene
who . . . has a claim or defense that shares with the main action a common question of law or fact.
Accordingly, permissive intervention under Rule 24(b) is wholly discretionary with the [district]
court . . . even though there is a common question of law or fact, or the requirements of Rule 24(b)
are otherwise satisfied. Kneeland v. Natl Collegiate Athletic Assn, 806 F.2d 1285, 1289 (5th Cir.
1987). Intervention is appropriate when: (1) timely application is made by the intervenor, (2) the
intervenors claim or defense and the main action have a question of law or fact in common, and (3)
intervention will not unduly delay or prejudice the adjudication of the rights of the original parties.
Frazier v. Wireline Solutions, LLC, No. C-10-3, 2010 WL 2352058, at *4 (S.D. Tex. June 10, 2010).
Whether a motion to intervene is timely depends on four factors:
(1) the length of time the applicants knew or should have known of
their interest in the case;
(2) prejudice to existing parties caused by the applicants delay;
(3) prejudice to the applicants if their motion is denied; and
(4) any unusual circumstances.
United States v. Covington Cty. Sch. Dist., 499 F.3d 464, 46566 (5th Cir. 2007) (citing Stallworth
v. Monsanto Co., 558 F.2d 257, 26466 (5th Cir. 1977)) (affirming finding that motion to intervene
fifteen weeks after consent decree was untimely and prejudicial, especially since intervenor should
have known of its interest in case for months); accord Effjohn Intern. Cruise Holdings, Inc. v. A&L
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Sales, Inc., 346 F.3d 552, 56061 (5th Cir. 2003).

III.

ANALYSIS
Texas moves for intervention as of right under Federal Rule of Civil Procedure 24(a), and

in the alternative, through permissive intervention under Rule 24(b)(1)(B). Defendants argue that
Texas does not quality for intervention as of right or through permissive intervention, and
furthermore, that sovereign immunity bars Texass claims brought under the Administrative
Procedure Act (APA). The Court will address each claim in turn, beginning with analyzing
whether Defendants have waived sovereign immunity.
A.

Texas Has Demonstrated that the United States Has Waived Sovereign
Immunity.

Defendants argue that [e]ven where a party satisfies the requirements of Rule 24(a), it must
also demonstrate that the court has jurisdiction over its claims before it may be allowed to intervene
as a plaintiff. See Defs. Resp. 9, ECF No. 28. Defendants contend that to the extent Texas might
assert that the [APA] provides an applicable waiver of sovereign immunity, its argument would still
fail because Texas appears to be challenging BLMs failure to take action: the preparation of a
gradient boundary survey. Id. at 11. Defendants contend that such a claim can proceed only
where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to
take. Id. at 12 (quoting Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004)).
Texas avers that Defendants have a legally binding commitment to determine the boundary
of public land that it claims. Tex. Reply 9, ECF No. 33. Texas states, The Federal Land Policy
and Management Act requires that public lands and their resources are periodically and
systematically inventoried. Id. (quoting 42 U.S.C. 1701(a)(2)). However, Defendants have

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failed to conduct a gradient boundary survey, despite that [t]he performance of a gradient boundary
survey is a discrete action that the agency is required to take in order to inventory the public lands.
Id. at 910. This requirement, argues Texas, is set forth as federal law in Oklahoma v. Texas. See
id.
To sue the federal government, a plaintiff must show that the United States has waived its
sovereign immunity from suit. Alpha Tech USA, LLC v. United States, 4:14-CV-304, 2015 WL
137303, at *2 (E.D. La. 2015) (citing F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994); Lewis v. Hunt,
492 F.3d 565, 570 (5th Cir. 2007)). Congress sets forth the terms of those waivers and courts may
not exercise subject matter jurisdiction over a claim against the federal government except as
Congress allows. Wilkerson v. United States, 67 F.3d 112, 118 (5th Cir. 1995) (citing United States
v. Orleans, 425 U.S. 807, 814 (1976)). A complaint against the government must identify a statute
that confers subject matter jurisdiction on the district court and a federal law that waives the
sovereign immunity of the United States to the cause of action. Alpha Tech, 2015 WL 137303,
at *2 (quoting Clark v. United States, 326 F.3d 911, 912 (7th Cir. 2003)).
The APA authorizes suit by [a] person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the meaning of a relevant statute. Norton,
542 U.S. at 61 (quoting 5 U.S.C. 702). Where no other statute provides a private right of action,
the agency action complained of must be final agency action. Id. at 6162 (quoting 5 U.S.C.
704). [A]gency action is defined in [5 U.S.C.] 551(13) to include the whole or a part of an
agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.
Id. at 62 (emphasis added).
The Supreme Court has clarified that the phrase failure to act is properly understood as
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a failure to take an agency actionthat is, a failure to take one of the agency actions (including their
equivalents) defined in 551(13).1 Id. [A] failure to act is properly understood to be limited, as
are the other items in 551(13), to a discrete action. Norton, 542 U.S. at 63. An action called for
in a plan may be compelled when the plan merely reiterates duties the agency is already obligated
to perform, or perhaps when language in the plan itself creates a commitment binding on the
agency. Id. at 71. Furthermore, the only agency action that can be compelled under the APA is
action legally required. Id. In other words, a claim under 706(1) can proceed only where a
plaintiff asserts that an agency failed to take a discrete agency action that it is required to take. Id.
at 64. The APA provides relief for failure to act in 706(1): The reviewing court shall . . . compel
agency action unlawfully withheld or unreasonably delayed. Id. at 62 (emphasis added).
The Federal Land Policy and Management Act (FLPMA) mandates that public lands and
their resources are periodically and systematically inventoried.

43 U.S.C. 1701(a)(2).

Furthermore, the BLM must keep the inventory current so as to reflect changes in conditions and
to identify new and emerging resource and other values. 43 U.S.C. 1711(a). Here, the parties do
not dispute that the United States has claimed 90,000 acres of land along the Red River. See
generally Tex. Mot., ECF No. 7; see generally Defs. Resp., ECF No. 28.
Defendants argue that Texas identifies no statute or regulation that imposes a mandatory

Agency action is defined in 5 U.S.C. 551(13) to include the whole or a part of an agency rule,
order, license, sanction, relief, or the equivalent or denial thereof, or failure to act. Norton, 542 U.S. at 62
(quoting 5 U.S.C. 551(13)). All of those categories involve circumscribed, discrete agency actions, as
their definitions make clear: an agency statement of . . . future effect designed to implement, interpret, or
prescribe law or policy (rule); a final disposition . . . in a matter other than rule making (order); a permit
. . . or other form of permission (license); a prohibition . . . or . . . taking [of] other compulsory or restrictive
action (sanction); or a grant of money, assistance, license, authority, etc., or recognition of a claim, right,
immunity, etc., or taking of other action on the application or petition of, and beneficial to, a person
(relief). Id. (quoting 551(4), (6), (8), (10), (11)).

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duty on BLM to prepare a gradient boundary survey and indeed, there is none. Defs. Resp. 13,
ECF No. 28. Texas points out that Defendants admit [t]he relevant boundary of the United States
property is governed by the test set forth in Oklahoma v. Texas, and that Defendants have a statutory
duty under 43 U.S.C. 1711(b), and additional provisions of the FLPMA, to determine the
boundaries of the public lands . . . and provide State and local governments with data from the
inventory for the purpose of the planning and regulating the uses of non-Federal lands in proximity
of such public lands. Tex. Reply 9, ECF No. 33 (quoting Defs. Resp. 6, ECF No. 28; 43 U.S.C.
U.S.C. 1711(b)). Texas ultimately argues that Defendants acted unlawfully under the FLPMA, in
light of Oklahomas mandate that they must prove the ownership of the land they claim. Thus, the
Court must determine whether Plaintiffs have stated a claim that Defendants failed to take a discrete
action that is legally required. Norton, 542 U.S. at 6364.
In Lujan v. National Wildlife Federation, the Supreme Court considered a failure to act claim
under the FLPMA. 497 U.S. 971 (1990). There,the plaintiff challenged the Secretary of the
Interiors entire land withdrawal review program, which provided the overview of the BLMs
activities in complying with the FLPMA. Sierra Club v. Peterson, 228 F.3d 559, 565 (5th Cir. 2000)
(citing Lujan, 497 U.S. at 87779). However, instead of limiting its challenge to a single BLM
order or regulation, or even to a completed universe of particular BLM orders and regulations, the
plaintiff challenged the continuing (and thus constantly changing) operations of the BLM in
reviewing withdrawal revocation applications and the classifications of public lands and developing
land use plans as required by the FLPMA. Id. (emphasis added) Therefore, the Lujan Court held
that the plaintiffs claim failed because it functioned as a broad, programmatic challenge to BLMs
program, plaintiffs cannot seek wholesale improvement of this program by court decree, rather than
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in the offices of the Department or the halls of Congress, where programmatic improvements are
normally made. Lujan, 497 U.S. at 891.
Similarly, in Sierra Club v. Peterson, the Fifth Circuit considered an environmental groups
challenge to past, ongoing, and future timber sales approved by the Forest Service, arguing that the
Forest Service failed to monitor and properly inventory those sales. 228 F.3d at 56567. The court
ruled that this challenge is precisely the type of programmatic challenge that the Supreme Court
struck down in Lujan, as the Sierra Club argued that the Forest Service failed to monitor and
inventory properly in conducting these sales. Id. at 566. More specifically, the challenge sought
wholesale improvement of the program, which is not a justiciable challenge because the program
of timber management to which the environmental groups object does not mark the consummation
of the agencys decisionmaking process.) (internal citations omitted) (citing Lujan, 497 U.S. at 891,
899; Bennett v. Spear, 520 U.S. 154, 178 (1997)). The court also clarified that the challenge was not
made justiciable by the fact that the environmental groups identified some specific sales in their
pleadings that they argue are final agency actions. Sierra Club, 228 F.3d at 567.
The Court finds that here, unlike in Lujan and Sierra Club, Texas is not launching a
programmatic attack on the BLM or seeking wholesale improvement of the means or speed by
which it generally surveys land, or even surveys land along the disputed portion along the Red River.
Rather, Texas is challenging that Defendants failure to maintain inventory of public lands under the
FLPMA is unlawful, in light of two particular circumstances: (1) where Defendants have claimed
over 90,000 acres of land that Texas claims belongs to the state; and (2) where Oklahoma mandates
that a party asserting changes to the boundary must prove this through conducting a gradient
boundary survey. Thus, Texas argues that the Court may be compelled to require Defendants to take
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these actions, as the agency is already obligated to perform these duties. See Norton, 542 U.S. at 71
(Of course, an action called for [in a statutorily required land use plan] may be compelled when the
plan merely reiterates duties the agency is already obligated to perform . . . .) (emphasis added).
Nevertheless, Defendants summarily conclude that they are not bound by a Supreme Court
holding because only a statute or regulation may sufficiently impose a directive on an agency.2
See Defs. Resp. 12, ECF No. 28. The Court disagrees. Judicial precedent may function as federal
law in determining whether an agency acted unlawfully. See, e.g., Indus. TurnAround Corp. v.
NLRB, 115 F.3d 248, 254 (4th Cir. 1997) (A decision of a panel of this court becomes the law of
the circuit and is binding on other panels unless it is overruled by a subsequent en banc opinion of
this court or a superseding contrary decision of the Supreme Court.) (striking down an agency
decision because it conflicted with Supreme Court and relevant Circuit precedent).
Furthermore, courts consider more than even Supreme Court precedent in determining
whether agency action complies with federal law. For instance, a federal district court recently
considered a provision in the California Constitution, holding that provision imparts an affirmative
duty on the state regarding planning and allocating water resources. Citizens Legal Enft &
Restoration v. Connor, 762 F. Supp. 2d 1214, 1231 (S.D. Cal. 2011). There, the court held that the
relevant constitutional provision requiring that the waste or unreasonable use or unreasonable
method of use of water be prevented was a sufficiently specific command to be enforceable as

Defendants also rely on Oklahoma to establish that the more recent Red River Boundary
Compact between Texas and Oklahoma now constitutes the federal law governing this boundary,
rather than the parameters set by Oklahoma. Defs. Resp. 7, ECF No. 28. Defendants thus appear
to infer that Oklahoma is a federal law in determining the United States boundary, but that it
somehow does not qualify as federal law in its mandate on future parties asserting changes to that
boundary.
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to the agency. Id. The court reasoned that [a]lthough the text of the Constitution does not explain
what waste or unreasonable use means, this provision creates a mandatory duty not to do those
things. This would be, to the extent that it applies to [the Bureau of] Reclamation here, a discrete and
required duty under SUWA. Id. Similarly, in Utah v. Norton, the court contemplated whether the
terms of a settlement agreement between state plaintiffs and federal defendants, including the
BLM, functioned as federal law and conflicted with other APA requirements such that it bound the
BLM to a particular course of wilderness management. See generally No. 2:96-CV-0870, 2006 WL
2711798 (D. Utah Sept., 20, 2006) .
The Court finds that in this early stage in the litigation, Texas has sufficiently asserted that
Oklahoma functions as a federal law requiring that a party asserting material changes to the boundary
is required to prove these changes. The Court further finds that Oklahomas mandate that asserted
changes must be proved by conducting a gradient boundary survey, as a specific federal law in
conjunction with the FLPMAs requirement to maintain an inventory of public lands, is not a
general directive[] granting broad discretion, but rather, is a sufficiently specific command to be
enforceable. Citizens Legal Enft, 762 F. Supp. 2d at 1231. Thus, to the extent the boundary is
found to be governed by the Oklahoma test through further factfinding in this case, the Court may
find that Defendants have failed to take the actions required by Oklahoma.
For the aforementioned reasons, the Court finds that Defendants sovereign immunity has
been waived. The Court will, of course, continually evaluate its jurisdiction as to Texas through the
course of this litigation.
B.

Intervention as of Right

In order to intervene as a matter of right, Texas must satisfy the four elements listed in Part
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II.A. The parties do not dispute the first element, the timeliness of the application for intervention.
The Court agrees that Texass motion for intervention was timely, as it was filed just two days after
Plaintiffs filed their original Complaint. See Tex. Mot. Intervene 6, ECF No. 7; Haspel & Davis,
493 F.3d at 578. The parties also do not dispute the fourth element, that Texass asserted interests
are not protected by the current parties. The Court agrees, in light of Texass interests asserted
below. See infra Part III.B.1. The Court will address the remaining two elements in turn.
1.

Direct, Substantial, Legally Protectable Interest in the Proceedings

Defendants argue that Texas identifies no direct, substantial, legally protectable interest in
the proceedings. Defs. Resp. 6, ECF No. 28. Defendants contend that [t]o demonstrate an
interest relating to the property or subject matter of the litigation sufficient to support intervention
of right, a movant must have a direct, substantial, legally protectable interest in the proceedings.
Defs. Resp. 6, ECF No. 28 (quoting New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732
F.2d 452, 463 (5th Cir. 1984) (internal quotations omitted)); see also Edwards v. City of Hous., 78
F.3d 983, 1004 (5th Cir. 1996).
Texas asserts that [t]he federal governments claim that it owns up to 90,000 acres of
property miles from the banks of the Red River threatens the States sovereign border. Mot. 7(a),
ECF No. 7. Texas argues, therefore, that [t]he federal governments inaccurate and arbitrary claim
to land that was previously recognized as part of Texas effectually impairs the States right to have
its border ascertained pursuant to the requirements of the United States Supreme Court. Id. (citing
Oklahoma v. Texas, 260 U.S. at 640). Texas claims it has a direct and significant interest in
determining whether the Compacts vegetation line boundary is the controlling federal law, or if the
gradient boundary along the south cut bank of the Red River is controlling federal law. Id. at 5.
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Texas also claims that it has a direct, substantial and legally protectable interest in
maintaining its current tax structure without the federal government eroding its tax base. Tex.
Reply 6, ECF No. 33; see also Tex. Mot. 5, ECF No. 7 ([T]he State of Texas[s] taxation structure
for such statewide taxes as the oil and severance tax and school finance could . . . be affected by this
suit . . . .). Texas claims that [t]he size and location of the land in Texas that the federal
government claims directly impacts the States tax and revenue base. Tex. Reply 7, ECF No. 33.
Defendants do not respond to Texass taxation arguments.
The Court finds that Texas has a direct and substantial interest in clarifying the extent and
nature of the land that Defendants claim. Further litigation will clarify Texass interest. See Johnson
v. Drew, 171 U.S. 93, 99 (1898) ([W]hether a party was or was not in possession of a particular
tract at a given time is a question of fact, depending upon parol testimony.). Similarly, the Court
finds that Texass arguments regarding taxation to be a sufficient interest supporting intervention,
as the Texas Tax Code allows for the collection of taxes for producers of gas, the market value of
gas produced and saved in the State by the producer, a tax imposed on liquid hydrocarbons, among
several others. See Tex. Reply 7, ECF No. 33 (collecting Tex. Tax Code provisions). Furthermore,
Texas has a substantial and direct interest in protecting its tax base because a certain portion of local
taxes directly fund Texas public schools. See, e.g., Neeley v. West Orange-Cover Consol. Indep.
Sch. Dist., 176 S.W.3d 746, 75758 (Tex. 2005, pet. denied).
For these reasons, the Court finds that Texas has a direct, substantial and legally protectable
interest in intervening in this action.
2.

Disposition of the Action Will Impair Texass Ability to Protect Its Interest

The parties also dispute whether the disposition of this action will impair Texass asserted
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ability to protects its interests. Defendants argue that similar to its objections regarding Texass
asserted interests, Texas cannot demonstrate that the disposition of this action will impair its ability
to protect its interest in its sovereign border. Defs. Resp. 7, ECF No. 28. Defendants argue this
is [b]ecause the [Red River Boundary Compact] imposes a different test for Texass boundary than
the test governing the southern boundary of the United States property interest, any determination
by the Court in this case will have no bearing on the location of Texass boundary. Id. at 78.
Texas points out that its taxation structure for such statewide taxes as the oil and gas
severance tax and school finance could. . . be affected by this suit . . . . Tex. Mot. 5, ECF No. 7
Texas further argues that [t]he land the federal government claims would not be taxable and that
[t]he displacement of private property owners and the devaluation of property due to clouded titles
caused by the uncertainty of the federal governments claims to Texas property both serve to
decrease the funding available for Texas schools statewide. Tex. Reply 8, ECF No. 33.
The Court finds that Texas will be impaired in its ability to protect its interests if not allowed
to intervene. The Court has already pointed out Texas has a direct and substantial interest in this
action. See supra Part III.B.1. The Court further finds that Texas will be impaired in its ability to
enforce Texas Tax Code provisions and use its tax base to fund the Texas Public Schools if not
allowed to intervene. See supra id.
For the aforementioned reasons, the Court finds that Texass intervention as of right under
Rule 24(a) is appropriate. Accordingly, Texass Motion to Intervene is GRANTED. In an
abundance of caution, the Court will also address whether permissive intervention would be
appropriate.
C.

Permissive Intervention
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In order to permissively intervene, Texas must establish the three factors listed above. The
parties again do not dispute the timeliness of Texass application for intervention, and the Court has
already determined that Texass application was timely. See supra Part III.B.1. The Court will
address each of the two remaining disputed factors in turn.
1.

Common Question of Law or Fact

Here, Texas claims that Plaintiffs and [Texas] each seek to require the federal government
to adequately identify the land it claims to own along the Red River. Tex. Mot. 8, ECF No. 7; see
also Tex. Reply 8, ECF No. 33. Defendants assert that the location of Texass border in Clay,
Wichita, and Wilbarger counties that Texas seeks to clarify is governed by the Red River Boundary
Compact. Defs. Resp. 89, ECF No. 28. Defendants conclude that because each survey method
applies a different standard, Texas consequently cannot demonstrate that it has a cognizable claim
that shares any common question of law or fact with those in the main litigation. Id. at 9.
The Court finds that the standard of the two survey methods at issue is an issue to be decided
through this litigation. To the extent that Defendants may be found in violation of Texass asserted
claims through the course of this litigation, the Court finds that Texas maintains a common question
of law and fact with the Plaintiffs regarding Texass taxation structure, private and public land
ownership, among other border-determinative matters.
2.

Prejudice To Existing Parties

Defendants contend that allowing Texas to intervene would prejudice the existing parties
by confusing the issue properly before the Court. Id. Texas asserts the opposite, and further points
out that Plaintiffs fully support the States intervention as stated in their Response in Support of the
State of Texass and Texas General Land Offices Motion to Intervene. Tex. Reply 8, ECF No. 33
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(citing Pls. Mot. Supp. Mot. Intervene 4, ECF No. 26 (Intervention does not cause any prejudice
or burden to Plaintiffs.)).
The Court finds that allowing Texas to intervene would not prejudice the existing parties by
confusing the issue properly before the Court. As Plaintiffs recognize, both Plaintiffs and Texas
seek a gradient boundary survey that reflects the actual boundary of the southern bank of the Red
River. If the boundary is not defined by a gradient boundary survey, Plaintiffs and [Texas] seek the
requisite proof that a significant avulsive action occurred, which did in fact place the alleged
boundary miles from the medial line of the Red River and its actual banks. Pls. Mot. Supp. Mot.
Intervene 78, ECF No. 26. The Court finds that Defendants do not demonstrate that any party
would be hurt by Texass intervention, and for the aforementioned reasons, greater justice could be
obtained if Texas were to join this action and assert its proposed claims. See Sierra Club v. Espy,
18 F.3d 1202, 1205 (5th Cir. 1994) (Federal courts should allow intervention where no one would
be hurt and greater justice could be attained.) (quoting McDonald v. E.J. Lavino Co., 430 F.2d
1065, 1074 (5th Cir. 1970)).
For the aforementioned reasons, the Court finds that Texass intervention as of right under
Rule 24(b)(1) is appropriate. Accordingly, Texass Motion to Intervene is GRANTED.
IV.

CONCLUSION
For the aforementioned reasons, it is ORDERED that Texass Motion to Intervene should

be and is hereby GRANTED. It is FURTHER ORDERED that Texas must separately file its
Original Intervenor Complaint on or before March 28, 2016.
SO ORDERED on this 14th day of March, 2016.

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