Generations and Other True Stories (32 page)

The alarm that warned the rural Trans-Pecos that its way of life is threatened was an item in a newsletter from Congressman Ron Coleman to his constituents in 1989. The El Paso Democrat, who represented most of the Trans-Pecos then (he since has been redistricted out of some of it), announced that Congress, at his request, had authorized one hundred thousand dollars for a study of a portion of the Trans-Pecos to determine the feasibility of adding it to the National Park system.

“I received Coleman's newsletter regularly,” Judge Dillard says, “but it usually was about Fort Bliss and the
colonias
at El Paso, so I didn't pay much attention to it. When I saw the mention of the study, though, I called the congressman's office and asked a few questions.”

He learned that the area under study included nearly all of Jeff Davis County and parts of Presidio, Brewster, Pecos, and Reeves counties. He published an article about it in
The Alpine Avalanche
, which he edited at the time.

Word of the study spread across the Trans-Pecos like a grass fire on a windy day. Angry citizens demanded and got a public hearing. About four hundred people—almost a quarter of the Jeff Davis County population—gathered at the parish hall of St. Joseph's Catholic Church in Fort Davis. “The hall was packed,” Judge Dillard says. “People were standing outside, listening at the windows. The Park Service sent people from Santa Fe, Denver, and Washington to say, ‘We're not as evil as you think we are.' ”

Mr. Coleman didn't attend, but sent an aide to read a statement. “Let me make one thing perfectly clear,” he read. “There is no proposal on the table, here or in Washington, to create a national park in the Fort Davis area. The team from the National Park Service is here only to survey the area's resources. Nothing more. The reason I ordered a study instead of introducing legislation was to determine first the feelings of the greater Fort Davis mountain community about the idea. And I can tell you another thing, too: If the community does not want a park, there won't be a park. It's that simple.”

The locals weren't bashful in making their feelings known. To put such a huge area under federal ownership, they said, would destroy the tax base of Jeff Davis County and harm the tax base of neighboring counties, all of which already are among the poorer counties in the state.

Furthermore, the federal government already owns two large national parks—the Guadalupe Mountains and the Big Bend—in the Trans-Pecos, and a national historic site right there in Fort Davis. And a quarter of the acreage in the Texas state park system also is in the Trans-Pecos.

Furthermore, the landowners weren't about to give up their ranches to the feds.

“Our ancestors bought our property over one hundred years ago with their blood and their sweat and their tears,” said Andrea Allen, president of the Borracho Cattle Co. at Kent. “Our ancestors preserved very ably the land that we now live on, paving the way for what is now the fourth generation. We were taught to love the land and to love our freedom. We were also taught to hold on to the land and hold on to our freedom. That is our mandate, and that we shall surely do.”

“People were enraged,” Judge Dillard remembers. “Folks were screaming at the park people. But there were others who
quietly
said, ‘It's the best thing that could happen to the area.' A lot of people were saying, ‘The only way this country will ever be preserved and kept from going the way of those five-acre ranchettes is the federal government stepping in and taking control of it.' But will anyone say that on the record? No.”

Mr. Coleman quickly killed the study and washed his hands of the park idea. But the national park scare had one important result: It led to the creation of the Davis Mountains Heritage Association, which, as its membership and sphere of influence grew, became the Davis Mountains Trans-Pecos Heritage Association. Now it's metamorphosing again into the Trans-Texas Heritage Association.

Whatever its name, its message and mission have remained unchanged. “Preserving Land & Its Natural Resources,” its bumper stickers declare, “Through Private Ownership.”

“We thought they were talking about maybe one or two particular parcels within the Davis Mountains,” Topper Frank says. “You can imagine the look on everybody's face when they drew a line around 4 million acres, virtually all of it privately owned. That was the beginning of the association. We went to work and got the funding cut and stopped the [national park] study. Then after that, the Endangered Species Act came into the picture, and since then it has been just one thing right after the other.”

Mr. Frank, of Van Horn, is current president of the Heritage Association. Ben Love, of Marathon, is a rancher and lawyer who helped organize the group and served as its first president. They're sitting in the association's office in Alpine, explaining the work that's taking so much of their time.

“A lot of people think the association is just the big ranchers of West Texas, but we're quite diversified,” Mr. Frank says. “We have teachers, lawyers, doctors. What's at jeopardy here is not just large ranches in West Texas, but private property in general. We do represent a lot of people who own a lot of land. We represent over thirteen million acres in Texas—almost 10 percent of the state. But we have members as far away as Connecticut and California. The same thing that's going on in West Texas is going on in New York, New Hampshire, Maine, places where there are not large land holdings. Private property is in jeopardy everywhere.”

And, Mr. Love adds, the big villain is the federal bureaucracy. “There are so many regulatory regimes at both the federal and state levels. And most of them are in the name of some sort of environmental protection, either under the Clean Water Act, the Wetlands Act, the Coastal Zone Management Act, the Endangered Species Act. The bureaucrats have found that they can exercise more land-use control under the guise of environmental quality protection than any other way.”

If government bureaucrats can keep writing regulations for the land, the association members say, they can restrict use of it so severely that its market value will plummet, and its only willing buyer then will be the government.

So the Heritage Association serves as a sort of Minuteman organization, to monitor the doings of government agencies and warn landowners of possible threats to their autonomy.

“Don't misunderstand me,” Mr. Love says. “The members of this association are probably the stoutest believers in a good-quality environment, and we've done a pretty good job of keeping it that way. We're very careful about where we build roads. We don't create eyesores. We don't use herbicides and pesticides. We don't pollute the water or the air. This is the reason the bureaucrats are interested in the Trans-Pecos—because we've kept it the most pristine part of Texas.”

Even though the federal government dropped the idea of another Trans-Pecos national park, the Heritage Association believes it has resorted to other means to try to gain control of as much of the area as it can. And its favorite weapon in its back-door attack is the Endangered Species Act.

“When it was passed in 1973, nobody thought twice about it,” Mr. Frank says. “Who's in favor of killing off a species? The problem is the rules and regulations that followed. What the feds couldn't get done through law, they accomplished through rules and regulations. And that's where the real danger is. There's no input from the public on rules and regulations. They start setting these things up, and then all of a sudden you find yourself included in it, and you find out you can't erect a windmill or a tank or a barn on your own private property because it affects the migratory flight of something. You get sucked into it.”

“And the Trans-Pecos has the greatest share of endangered species per square mile of any area of Texas,” adds Mr. Love.

In August 1988, not long after her husband died, Kack Espy got a letter from the Department of the Interior. “This letter,” it read, “is to inform you that the U.S. Fish and Wildlife Service is considering listing the Little Aguja pondweed as endangered…. We believe that with the understanding and cooperation of private landowners, we can prevent some unnecessary harm to this species, perhaps even prevent its demise.”

“I had never heard of the Endangered Species Act or the pondweed,” Mrs. Espy says. “So I just kept the letter. It didn't seem to require an answer.”

Early in 1989, she received a call from Mr. Love, who told her that, indeed, the Little Aguja pondweed had been listed as an endangered species. The Fish and Wildlife Service apparently had made its decision on the basis of a specimen that an undergraduate student from Alpine's Sul Ross State University had obtained from Aguja Creek in Little Aguja Canyon by trespassing onto Mrs. Espy's Jeff Davis County ranch.

“I got in contact with my lawyer, who is in Fort Worth, and we worked with the Heritage Association for a year about the pondweed,” Mrs. Espy says. “It cost me between eight thousand dollars and ten thousand dollars in legal fees.”

They had to invoke the federal Freedom of Information Act to get the Department of the Interior to release information about its decision, and Mrs. Espy became involved in a lengthy correspondence with the department.

“Their letters were always quite courteous,” she says, “but they also were quite vague. They said my responsibility for the pondweed would be very limited, but they also said in several letters that cattle would endanger it. They might eat it or their manure might affect it. Well, cattle have been using that pasture for a century at least, and if the pondweed is still there, they haven't bothered it, have they?”

Mrs. Espy invited Dr. Barton Warnock, retired Sul Ross botany professor and the acknowledged authority on Trans-Pecos flora, to come to the ranch and search along Aguja Creek for the pondweed. “We crawled up and down that creek,” she says. “Dr. Warnock found a species of pondweed, but it wasn't the one that had been listed. He couldn't find it anywhere.”

As the Endangered Species Act provides, Mrs. Espy and the Heritage Association requested a public hearing of the pondweed question. One was scheduled for July 17, 1990, in Fort Davis. But in June she received another letter from the Interior Department.

“The U.S. Fish and Wildlife Service recently received information that the pondweed specimen collected on your property by a Sul Ross State University student was misidentified as Little Aguja pondweed
(Potamogeton clystocarpus)
. This error was brought to our attention by this former student and has since been verified by our botanical experts.”

“The pondweed wasn't there,” Mrs. Espy says. “But there was no concern about the trouble I had to go through to protect my property. There was no apology for my having to spend all that money. They probably thought we would call off the hearing, but we went ahead with it. We were very prepared in every way. They sent people from Albuquerque, I believe it was, but they said they had no authority to answer any of our questions.”

The turnout was almost as large as for the earlier national park hearing. “That little assembly building in Fort Davis was bulging at the seams,” Mr. Love says.

Although Mrs. Espy won her fight, the Fish and Wildlife Service went ahead and declared the Little Aguja pondweed an endangered species, and said it was present in Aguja Creek on a ranch owned by the Buffalo Trails Council of the Boy Scouts, just upstream from Mrs. Espy's place.

Later, she learned that under the Endangered Species Act, the Fish and Wildlife Service has no authority to restrict the use of land to protect rare plants—something that the Fish and Wildlife Service never told her. But as a result of her fight, many ranchers who previously had welcomed scientists and students onto their land to study its geology, botany, zoology, and archaeology have shut their gates to such visitors and now prosecute trespassers.

Recently a number of ranchers rescinded permission they had given the army to come onto their land to improve roads used by the Border Patrol to fight smugglers of drugs and aliens. The reason: A rancher discovered a vehicle full of scientists on his land, sent there by the Corps of Engineers.

“The Army had to get an environmental assessment of what it was going to be doing,” Mr. Love says. “So it brought those people in to do surveys. Well, the [ranch] people who gave them access granted it patriotically. But they didn't know they were opening themselves to having those people investigating their land.”

Since the Little Aguja pondweed incident, the Fish and Wildlife Service hasn't bothered the Trans-Pecos much, Mr. Love says. He believes the Heritage Association is responsible for the respite. “The pondweed debate told the service that the folks out here are not going to allow themselves to be regulated without stirring up a little sandstorm,” he says.

The Heritage Association's perceived enemy now is the Nature Conservancy, a private wildlife conservation group funded largely by corporations. The conservancy works for the conservation of rare species of plants and animals in all fifty states and in thirty-four other countries. It often buys land on which rare species occur, and recently purchased two small tracts in Jeff Davis County. The Heritage Association regards it as “nothing but a giant federal real estate agent,” according to Mr. Frank.

“Over 90 percent of the land the conservancy has bought in Texas is now in government hands,” he says. “The National Park Service and other federal agencies use it to acquire land when it would be controversial for them to try to get it themselves.”

Last summer, the conservancy brought a group of its large donors to the Trans-Pecos to show them the Davis Mountains. Some members of the Heritage Association greeted them with signs on their ranch fences: “Private Property Yes, Nature Conservancy No.”

David Braun, vice president and state director of the Nature Conservancy of Texas, led the tour. He says the Heritage Association's fear of his organization is unjustified and based on a lack of understanding of its mission.