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The Bryan-College Station Eagle > Texas & Region
theeagle.com 1/15/06

Eminent domain battle shaping up at Padre Island



South Texas county may sue to take wildlife preserve, Nature Conservancy vows to fight forced sale of South Padre land. AMERICAN-STATESMAN STAFF December 24, 2005

Eminent domain battle shaping up at Padre Island

SOUTH PADRE ISLAND - Willacy County officials think good things could at long last happen for their remote corner of Texas - if only they could overcome the 9.5-mile bay that separates the mainland from their section of Padre Island.

A few years ago they bought a so-called ferry - a 40-year-old amphibious vehicle that initially failed to pass government safety standards. Now they just need a place to land it.

But the section of Padre Island the county wants is owned by the Nature Conservancy, and the environmental group says it's not for sale.

So the county commissioners voted in November to use eminent domain to seize the land, angering conservancy members who fear an influx of beachgoers will threaten wildlife on the 1,500-acre section of island.

Eminent domain gives governments the power to take private land for public use - usually for projects such as highways or mass transit systems. Texas was one of at least 31 states to review eminent domain laws following a U.S. Supreme Court ruling last year that backed governments' power to take private land for economic development as a way to increase tax revenue.

Gov. Rick Perry signed a bill into law last fall that limited eminent domain use in Texas, saying government should not encroach upon private property rights unless there is an eminent public need. "Eminent domain for private use is a great threat," he said.

County Attorney Juan Angel Guerra said the county can legally take the land, since it will allow the public better access to the island. Currently, visitors must drive 25 miles up the coast from South Padre Island to reach it. The Conservancy vows to fight the land grab in court.

Willacy is a financially foundering county on the northeast end of the Rio Grande Valley, about 40 miles from the Texas-Mexico border. It has fewer than 18,000 people, and no real industry since fruit-packing sheds and clothing factories closed decades ago.

The bright spot is Port Mansfield, a popular, semi-tropical gateway to what's considered some of the best sport-fishing in the country, stretching from the Gulf of Mexico through the Laguna Madre Bay. But the bay waters off the mainland offer little for beachgoers and swimmers.

"If you don't have access to the island, then what's the purpose for coming here?" Guerra said.

The Willacy County Navigation District bought the "Lark" amphibious vehicle in 2004 because it didn't believe it would ever be able to build a dock. Now, it wants to buy a place to load and unload it so residents and tourists can enjoy the beach.

The land north of the Mansfield Ship Channel is the federally protected Padre Island National Seashore, a wilderness area. That leaves the southern side of the island, where the Conservancy owns its property, known as a haven for rare and endangered species, such as Kemp's ridley sea turtles, piping plovers, and migrating peregrine falcons.

Conservancy representatives said they learned of the county's eminent domain decision through local news reports, and had to request a copy of the meeting minutes to get more details.

"No one at Willacy County has made any attempt whatsoever to contact the Nature Conservancy about this matter," said Carter Smith, the Conservancy's state director. "Candidly, we find that very disquieting."

Smith said the Conservancy talked about selling the land to the county several years ago but decided against it because the county hadn't thought through how it would deal with sanitation issues, law enforcement and other ways to mitigate environmental impacts and protect endangered species.




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.

Lynn McBride

The Willacy County Navigation District may force the sale of a wildlife preserve on northern South Padre Island so it can run a tourist ferry there. County commissioners have approved using a condemnation lawsuit against the Nature Conservancy to acquire the necessary land.

Gabe Hernandez

Mike Wilson, port director of the Willacy County Navigation District, plans to use an amphibious craft to ferry passengers to the preserve.

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 apparent- ly 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, Conn., 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.

sscheibal@statesman.com; 445-3819




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