illustration by Doug Potter
Most farmers would probably rather have weevils than lawyers. But these days, they have both. And now they can't get rid of either one.
Last Wednesday, Nov. 20, proponents and opponents of the statewide boll weevil eradication program had a showdown at the Texas Supreme Court. Supporters said the Legislature was correct in using its police powers to rid the state of an economic menace. Opponents told the justices that the eradication program is unconstitutional because it has not been uniformly applied to cotton farmers, and because the revenues collected by the eradication foundation are a form of occupation tax.
At issue is the existence of the Texas Boll Weevil Eradication Foundation, an agency set up by the Legislature in 1993 to oversee the elimination of every single boll weevil on over 5.7 million acres of Texas cotton. The foundation was authorized to hold referendums in regions throughout the state. If a majority of farmers in a region voted for the program, all of the farmers in the region were assessed a fee based on their cotton acreage. In participating zones, the foundation uses repeated aerial applications of the pesticide malathion to suppress the weevil.
But last year's cotton crop was disastrous in the Lower Rio Grande Valley, and in farms around San Angelo. In all, cotton producers in the two regions lost some $300 million worth of cotton due to infestations of the beet armyworm, an infestation that two scientists from the Weslaco office of the Agriculture Research Service -- an arm of the U.S. Dept. of Agriculture -- blamed on overzealous pesticide application, including the spraying done by the eradication program.
In the wake of the disaster, Valley farmers voted in January by a margin of nearly 3 to 1 to stop the eradication effort. It was the first time in the 22-year history of the boll weevil eradication effort that farmers voted to quit the spraying program. In March, farmers in eastern Mississippi, who also had a poor cotton crop last year, voted to end eradication efforts in their region.
Representing the foundation before the Supreme Court was Matt Dow, an attorney from the Austin firm of Small, Craig, & Werkenthin. Dow argued that the Legislature was using its legitimate police powers when it created the foundation. Also arguing for the eradication effort was Bill Ratliff, an attorney from the Austin firm of McGinnis, Lochridge, and Kilgore. Ratliff represented the Farm Credit Bank of Texas, which has extended a multi-million dollar line of credit to the TBWEF. Ratliff pointed out that some $20 million has already been spent on boll weevil eradication in the state and that if there is a problem with the foundation, "the Legislature can decide on the best way to approach the problem." Otherwise, Ratliff said, "The people that will suffer are the farmers."
But Rudd Owen, an attorney from Plainview, and Randy Whittington, a lawyer from Harlingen, who together represent more than 140 farmers opposed to the program, argued that the program is unconstitutional and should be immediately struck down by the court. Whittington argued that the fundamental goal of the eradication program -- complete destruction of the weevil -- has been defeated because only 89 counties in the state are participating. "Under this statute, our farmers are treated differently from two-thirds of the other cotton farmers in the state," he said. "It's that different treatment of my clients that leads to our constitutional challenge."
Then comes the question of money. Whittington's clients may still be expected to pay the foundation more than $9 million in debt. "Our farmers still have the boll weevil problem and will be paying assessments for years to come," he said. Therein lies one of the biggest questions facing the eradication effort: If the court decides the measure is unconstitutional, then what? "What happens to the debt?" Chief Justice Tom Phillips asked Whittington.
"I don't know," replied Whittington, "But that does not mean the court should try to save an unconstitutional statute."
TBWEF has come under scrutiny for its management practices. While farmers in the Valley took heavy losses, Frank Myers, the executive director of the foundation, is earning more money than the governor. According to information obtained by the Chronicle under the Texas Open Records Act, Myers is paid $124,088 per year to administer an agency with 330 employees. Texas governor George W. Bush receives $99,121.92 per year.
After the hearing concluded, Myers defended his pay package, saying, "Anybody that runs a corporation of this size is paid eminently more than that." Then he said with a laugh, "Maybe I should be making a story about how underpaid I am -- do you think I could get a story out of that?"
Despite the lawsuit, Myers said the eradication program has "a lot of support. It'd be almost criminal to see it go down now."
The court is not expected to deliver a decision on the boll weevil matter for several weeks.
On November 18, John Rogers, the Acting Chief of the U.S. Fish and Wildlife Service (USFWS), sent a letter to Dan Pearson, the executive director of the TNRCC, saying, "if the threats to the salamander are not addressed by the state... the Service has no choice but to act to protect this species."
At issue is the suite of regulations the TNRCC has created for the Barton Springs zone. The new rules have no limits on impervious cover, ignore non-point source pollution, eliminate the ability of local jurisdictions -- like Austin -- to impose stricter water quality standards on developments, provide no money for monitoring water quality improvement ponds, do not limit underground storage tanks, and allow TNRCC director Pearson to waive any and all rules for new development.
"The whole thing is a joke," said one federal official who requested anonymity.
In August, the USFWS bypassed the controversy over whether to list the salamander as an endangered species by agreeing to allow the TNRCC, Texas Parks and Wildlife Department, and Texas Department of Transportation, to create their own protection scheme for the 2.5-inch-long amphibian, which is found only in Barton Springs Pool.
Mark Jordan, the TNRCC's director of water policy, did not return calls from the Chronicle. (His number is 239-4805 if you want to call him yourself). But Jordan appears to be the TNRCC's leading ignore-the-science-and-forget-the-salamander bureaucrat. Last year, in a letter to the FWS, Jordan declared that there had been no "material decline" in water quality in Barton Springs since 1976, "Nor do the studies and reports demonstrate a direct, quantifiable relationship between the water quality conditions in Barton Creek and those of the Springs."
Jordan's statement directly contradicts the best study of Barton Springs ever done, a 1986 report by the U.S. Geological Survey which determined that "the quality of water from Barton Springs is more sensitive to the quality of streamflow in Barton Creek than from any other surface recharge source."
In a statement to the local daily on Nov. 20, Jordan said the TNRCC was "meeting the letter and the intent of the agreement."
Copyright © 2021 Austin Chronicle Corporation. All rights reserved.