South Texas county may sue to take wildlife preserve - Nature Conservancy vows to fight forced sale of South Padre land
(Note: Now the shoe is on the other foot, and it appears to be pinching The Nature "Conservancy," which is referred to in this article as "the conservancy" rather than by its acronym: TNC. Tsk, tsk.)
December 24, 2005
By Stephanie Scheibal, American-Statesman staff or 512-445-3819
Austin American-Statesman
P.O. Box 670
Austin, Texas 78767
Fax: 512-912-5927
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The Nature Conservancy's wildlife preserve on South Padre Island is, according to its owners, a treasure trove for threatened animals.

Piping plovers, a rare bird species, gather there. Green sea turtles forage for food in the Laguna Madre channel west of the island, while endangered Kemp's ridley sea turtles lay eggs in the dunes.

The Willacy County Commissioners Court thinks people need to see this gem -- so much so that the county may sue the Nature Conservancy, forcibly buy the property and start driving tourists across the beach in an amphibious ferry resembling the Duck tour vehicles that roam downtown Austin.

The commissioners, who govern the coastal county of about 20,000 just north of Brownsville, voted last month to pursue a condemnation lawsuit that could force the Nature Conservancy to sell its preserve to the county's navigation district.

The district, which is related to the county government, wants to build a ferry landing on the land, a notion so saddled with business uncertainties that the Texas General Land Office this year pulled a $700,000 grant that would have helped pay for it.

The mere pursuit of the land is a twist on the state's increasingly touchy discussion about when governments can take private property.

In environmental fights, it is normally property rights advocates who raise constitutional questions, demanding compensation for regulations that devalue their land.

In this case, that role belongs to the Nature Conservancy.

Carter Smith, the conservancy's state director for Texas, said that condemning a nature preserve for development would threaten a practice praised by property rights defenders: acquiring land through private-sector means and setting it aside for public use.

Smith said the group fears a ferry landing could irreparably damage the preserve.

He added, however, that the county has refused, at least so far, to spell out exactly what it plans to build, how much land it needs or how it would protect wildlife there.

Smith declared the potential case "a fundamental assault on the sanctity of private property rights and the future of private lands conservation."

County Judge Simon Salinas -- whose commissioners authorized a lawsuit on behalf of the separately-elected Willacy County Navigation District -- is as nonchalant about the fight as Smith is agitated.

Salinas says he has no beef with the Nature Conservancy.

He simply wants people from the area to be able to see the property without having to find their own boat ride or drive roughly 30 miles, much of it over beaches, from the town of South Padre Island.

Like all beaches in Texas, the preserve is open to the public.

"We have a piece of nature out there, and I think everybody should see it the way it is," Salinas said. "It is beautiful out there.... I don't want to mess it up," he said. "This lawsuit doesn't have to be unfriendly."

Willacy County and the conservancy have talked about the land since 1998, when the group first moved to buy about 25,000 island acres across the Laguna Madre from Port Mansfield.

The conservancy completed the sale in 2000 and three years later transferred almost all of its property to the U.S. Fish and Wildlife Service, which operates a refuge on the island.

In 2003, the county navigation district began writing to the conservancy about buying property that was left.

Correspondence shows the conservancy asking a number of questions about how the county would use the land, as well as laying out concerns that the habitat might be damaged by development.

Smith said the county never offered a detailed response, and talks fizzled.

In the meantime, the Texas General Land Office rescinded a 2002 grant that would have helped build the landing and run the ferry.

Land office spokesman Jim Suydam ran through a list of reasons for yanking the money, including inadequate budgets and business plans and deep questions about whether the amphibious craft was up for the voyage.

Suydam said the U.S. Coast Guard would not certify the craft to get farther than 1,000 feet from land.

The navigation district proposes regular trips of more than nine miles.

That is akin to taking a vehicle that can't legally complete a lap around the University of Texas track and sending it, regularly, from the university to the outskirts of Pflugerville.

Salinas, however, is undeterred. He said Willacy County still plans to run a ferry to the island.

Lacking the $700,000, he said, officials will rely on fares to pay for the project.

And if the Nature Conservancy won't sell its land, the county will take it.

Smith said he learned of the condemnation only when a reporter for a South Texas newspaper called for his comments on it.

"Candidly, it's an astonishing way for a county to go about their business," Smith said, "and a real disservice to the citizens of Willacy County."

The condemnation apparently does not run afoul of a new state law passed this summer that clamps down on eminent domain proceedings.

The law was passed during a special session in the wake of a U.S. Supreme Court ruling allowing city officials in New London, Connecticut, to condemn a widow's house for a private economic development project.

State Sen. Kyle Janek, R-Houston and a sponsor of the eminent domain legislation, praised the conservancy for its preservation efforts and its "approach of participating in the private sector."

Janek said he is willing to consider the concerns of conservation groups in legislative hearings next year on eminent domain issues.

But he also said that governments need to acquire land for transportation projects, and that sometimes they have to do it through condemnation.

"My first blush look at it is, (the conservancy) would be treated the same way as a homeowner," Janek said.

Copyright 2005,