Schutze

Why the Trinity River Project Could Be a Windfall for the Lawyer Who Sues the Army Corps of Engineers

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The Corps, which is responsible for the levees, is trying to put the brakes on the rest of the project, claiming now that it is responsible only for the flood control elements of the plan.

But I am here to tell you there is a very long paper trail reaching back into the origins of the Trinity River Project binding the Corps deeply into the transportation elements of the project. In 2000, back before Bush went dark, Mitchell Daniels Jr., his director of the White House Office of Management and Budget, wrote to the secretary of the Army telling him the White House thought the Trinity River Project was a bad idea.

"The Administration believes that the Corps should not enter into a project cooperation agreement or begin any physical construction work on the authorized project..." his letter said.

Daniels said the Office of Management and Budget suspected the Corps had fiddled the basic numbers justifying the project, especially in justification of new levees downriver, and had ignored simpler, cheaper ways to achieve better flood protection for downtown Dallas.

Why would the Corps do that? A possible answer is that the Corps was designing and even compromising its so-called flood control project to serve the interests of a road project. And in fact, a February 19, 1998, letter—a document you plaintiff's attorneys could get your hands on with a simple Public Information Act demand—sent by Dallas bond lawyer Ray Hutchison to the Texas Attorney General, said the elements of the project were totally and deliberately interdependent from conception.

Hutchison was asking the AG to approve the $246 million Trinity River Project bond issue that Hutchison had crafted for the city of Dallas. But there was a problem. The law says you're not supposed to lump unrelated bond proposals together in one item on an election ballot. If you have bonds for three different kinds of things—flood control, transportation, recreation—then you should split them up into three different propositions on the ballot.

Hutchison, husband of U.S. Senator Kay Bailey Hutchison, argued that the various elements of the Trinity River Project were so tightly woven together and interdependent from the beginning that they really were one project and could not be split up into separate propositions.

The AG agreed. So did the Corps. In statement after statement, Corps officials have professed that they are joined in holy matrimony with the city of Dallas, the state highway department and the toll road authority—well, I guess that wouldn't be quite holy, would it?—in building this great project, very much including the toll road.

In November 2008, Corps Brigadier General Ken Cox took part in a joint press event with the city and other agencies, the point of which was that everyone was working hand-in-hand on the road, the bridges and the whole deal. Cox proudly told reporters, "The Corps is committed to this project. It's a major project for us."

With Cox at his side, a beaming Dallas Mayor Tom Leppert held up an agreement signed by the Corps and the city declaring that their new motto was, "Not saying, 'No,' but saying, 'How do we get to yes?'"

Oh, yeah. You know, I was stopped at a light recently with my window down on Harry Hines, and a lady I don't know from Adam (swear) came up and said something quite similar to me. It was most unwelcome.

Wait, plaintiff's people. I'm not done. In April 2002, U.S. District Judge Terry R. Means ruled in a 62-page decision that the Corps had failed to include all the elements of the Trinity River Project in its original environmental impact study, especially the road. Finding that the road and the flood control project were inextricably bound, Means ordered the Corps to carry out a new study.

That decision came out of a package of litigation, state and federal, crafted by renowned environmental plaintiff's attorney Jim Blackburn of Blackburn & Carter in Houston. Blackburn hired his own hydrologist, who looked closely into the computer models and data used by the Corps to justify its original design for the Trinity River Project. A state judge subsequently refused to look at the hydrologist's evidence.

But I looked at it. And you could too. What you would find is very intriguing evidence to show that the Corps had its thumb on the scale back when its levee improvement project was still in the womb, in order to make sure it would come out in a way that would enable the road project Dallas wanted.

You and I, dear plaintiff's attorneys, hope devoutly that the levees in downtown Dallas will never breach. The ensuing flood, if it happened during the day, would take a dreadful toll in death and mayhem. If the Corps gives in to pressure from Dallas to hurry up its approval of signature bridges and levee repairs, and if those levees ever do blow, the outcome will parallel Katrina.

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Jim Schutze has been the city columnist for the Dallas Observer since 1998. He has been a recipient of the Association of Alternative Newsweeklies’ national award for best commentary and Lincoln University’s national Unity Award for writing on civil rights and racial issues. In 2011 he was admitted to the Texas Institute of Letters.
Contact: Jim Schutze