By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
"If you effect the marine life's reproduction, then you are impacting the commercial and recreational fishing industry off the coast, and that's big. That's a multimillion-dollar enterprise."
In making its case for the reservoir, Dallas commissioned a study to show there were better places along the Neches to create a refuge than the 25,281 acres on the upper river that USFWS had set out. Dallas demonstrated it could build a 23,000-acre reservoir and, using money required by law for environmental mitigation, still help create a refuge on the middle Neches, downstream from the dam.
Mitigation land is an area several times the size of the reservoir itself that Dallas would be legally obligated to buy in compensation for the natural area destroyed by the reservoir. Using the mitigation land, Dallas could create a refuge three times the rare bottomland hardwood forest and six times the grassland that would be included in the proposed USFWS site on the upper Neches.
Dallas also cited recent research by the Texas Parks and Wildlife Department showing that the picture painted by USFWS for its proposed site was perhaps a bit rosy: The USFWS data, based on research that is almost a quarter-century old, showed the USFWS site at 71 percent rare hardwood bottomland.
Dallas presented newer TPWD data, which showed that probably as a result of logging, the USFWS site is only 31 percent hardwood bottomland. The refuge Dallas is willing to create would have about 29 percent hardwood bottomland, but because the Dallas refuge would be three times the total size of the USFWS refuge, Dallas would wind up saving much more total hardwood bottomland.
A three-judge panel of the 5th Circuit did not buy Dallas' arguments. The panel ruled that USFWS had made a reasonable attempt to get the best data it could and had followed the proper process for creating a refuge.
Dallas still has several legal options available, according to Bowers, the assistant city attorney. He told me in a recent phone interview that the city can seek a rehearing before the appeals panel, a new hearing before the entire 5th Circuit or a direct appeal to the U.S. Supreme Court.
If ultimately the case goes against Dallas, then the USFWS will begin budgeting for land purchases to fill out the full 25,281 acre refuge, according to Jose Viramontes, a spokesman for the USFWS southwest regional office in Albuquerque.
The Conservation Fund, which has been amassing land for the refuge, is also on hold, according to Jones, its Texas director. As soon as the litigation is settled, the Fund will donate 7,000 acres to the refuge.
Bowers would give me no hint of what Dallas might do. Before we hung up, however, he related a small anecdote. At some point, he had driven the area of the proposed USFWS refuge and noted some activities along that stretch of the Neches that struck him as distinctly non-tree-hugging, including a big nasty four-wheeler park that he described as "full of mud."
Apparently that's what Will is telling me he hears now. We are on a slow, wide, treeless stretch of river, silently drifting without paddling, in hope of seeing more wildlife. "It's either a four-wheeler or a chainsaw," he whispers. I hear absolutely nothing. Or do I? No, he's imagining things.----
We round a bend, and suddenly the far bank on the right erupts into a scene out of a graphic novel. Three mud-coated men on roaring, smoke-spewing, four-wheeled all-terrain vehicles explode from the brush. I can't help gawping at these giant raptors ripping small trees by the roots. Something tells me we must be near our campsite for the night, and these would be the "undesirable social elements" we are supposed to avoid.
Just as we are to follow another bend in the river and leave the mud-persons behind, they turn their vehicles straight toward us and into deep pools of floodwater. Their vehicles disappear, then blast back up into the air in glorious roaring sprays of water and mud, turning at the last moment to avoid plunging into the river.
Ahead is the clearing where a dirt county road stops at the riverbank. It's the one little rag of public land along this entire stretch where we can camp legally. Two elderly fellows on folding chairs sit at the riverbank with fishing poles. When we steer toward them they both peer at us acutely like Bernardo and Francisco, the ghost-wary sentries in the opening scene of Hamlet.
To the one closest, Will says, "Hi, how are you doing?" This man ducks his head with a jerk and stares straight down at his shoes without response.
Once we have landed, I say to the second one, "Very nice spot here."
He says, "It's usually quiet," with a big emphasis on usually. Apparently his notion of quiet is not disturbed by the roar of four-wheelers across the river but is invaded by our canoe full of gear, which he is eyeing as if it were a flying saucer. A dozen yards away from them, we set up tents and put a pot on to boil for pasta. The first gentleman is still clutching his fishing pole, staring at his shoes. The second fisherman asks me where we started and how far we intend to go. I tell him tomorrow we'll go all the way down to U.S. Highway 84. He turns away with a certain forward pitch of the face and says, "You get on down toward 84, you're gonna have trouble."