 illustration by Doug Potter |
ambitious plan to rid the state of the boll weevil has not gotten rid of the pesky
cotton-destroying insect. Instead, the statewide spraying program has caused an
infestation of lawyers.
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.
Salamander Update
Could the feds be realizing that the Texas Natural Resource ConservationCommission (TNRCC) has no intention of trying to save the Barton Springs
Salamander?
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.”
This article appears in November 29 • 1996 and November 29 • 1996 (Cover).