Pecan trees waiting for court decision

By Judith Pannebaker

The only native pecan grove remaining in Bandera County had another day in court Tuesday, March 20, when local attorney John Payne presented oral arguments before justices of the Fourth Court of Appeals in San Antonio. He attempted to secure a permanent stay of execution for two arbors in the grove.

Back & forth battles

The legal tug-of-war began last summer when Medina resident Jacquelynn R. Kyle, filed a lawsuit to prevent the Texas Department of Transportation from destroying a grove of old pecan and black walnut trees. The grove forms a canopy over a section of Highway 16 as it meanders along the Medina River toward Kerrville.

TxDOT personnel had cited “public safety” as necessitating removal of a portion of the trees.

Last June 216th District Judge Stephen Ables imposed a temporary restraining order that prevented TxDOT from removing a 140-year-old pecan tree and another 100-year-old pecan tree as part of a highway construction project. According to TxDOT officials, removing the trees would facilitate widening an eight-mile stretch of Highway 16 to 12 feet and adding a five-foot shoulder.

As a sap to vociferous public protests, the agency had previously reduced the number of large trees to be sacrificed from five to two.

On Kyle’s behalf, Payne filed a second motion requesting the temporary restraining order be changed to a temporary injunction. The next day, however, TxDOT attorneys requested a change of venue to federal court TxDOT’s motion prevented Ables from signing the temporary injunction.

After hearing arguments, Federal Judge Royal Ferguson of the United States Western District of Texas granted Payne’s request for a temporary injunction. His ruling prompted TxDOT attorneys to request a summary judgement - a ruling based on either the merits of the case as a whole or on specific issues, without conducting a full trial.

Ferguson not only denied the request for summary judgement, but also Payne’s request that the case be remanded back to district court.

Payne immediately filed a motion reconsider - which Ferguson did - sending the case back to district court. Ables then signed a temporary injunction, prohibiting TxDOT from removing any pecan trees.

Appeal to Appeals Court

TxDOT attorneys appealed Ferguson’s ruling, and Texas Fourth Court of Appeals Justices Catherine Stone, Phylis J. Speedlin and Sandee Bryan Marion heard oral arguments last month.

“The justices asked good questions about the case and I responded accurately,” Payne said in a recent interview, noting parenthetically, “We feel strongly about our case.”

One of Payne’s main points was the apparent non-accountability of the uber-agency. “TxDOT is one of the most powerful state agencies promulgating its own rules and regulations so it does not have to answer to anyone,” he said. “I asked the justices, ‘Who grades TxDOT’s papers’?”

Payne continued, “The appeals court grades the papers of the district courts and the Texas Supreme Court grades the papers of the 14 appeals court. But who grades TxDOT’s papers?”

Noting that TxDOT was being represented by Susan Demarias Bonnan of the Attorney General’s office, Payne told justices the case actually boiled down to “the power of government v. the rights of the people.” TxDOT, he said, makes arbitrary decisions without consulting the people those decisions impact the most. TxDOT should serve the people of Texas, not the other way around, Payne added, emphasizing the need for governmental transparency through public notices and hearings.

“The Attorney General’s office has ended up defending, not the people, but the non-compliance of a state agency,” he said. “If the appeals court does not speak for the rights of the people, no one will grade TxDOT’s papers.”

Heart of matter

Payne said Bonnan she kept her arguments to her filed brief, emphasizing TxDOT was a governmental entity with immunity from liability and reiterating the court had no right to review the agency’s decisions. The plaintiffs, she said, had “no protectable rights,” according to Payne.

“If they lose, TxDOT will go to the Supreme Court (of Texas). This is an incredibly important case for every landowner in the State of Texas. It speaks to what TxDOT’s responsibility is to citizens regarding every project and also the citizens’ right to respond to TxDOT about the way the projects are conducted.”

Ultimately Payne and Kyle will only be satisfied if none of the pecan trees are removed, and Highway 16 through Bandera Country is designated a “scenic route” with a lowered speed limit.

Brouhaha begins

The brouhaha began when TxDOT engineers maintained public safety mandated removal of the pecan trees. In his motion for a permanent injunction, Payne asserted TxDOT had based its claim on a preceding three-year accident history on an 11.7-mile stretch of Highway 16 between Bandera and Medina.

TxDOT allegedly cited “numerous accidents involving the grove of pecan trees.”

Statistics, however, belied that charge. According to information obtained from the Bandera Office of the Department of Public Safety, no accidents along the stretch of road involved trees.

“The nearest accident to the intersection of Highway 16 and Kyle Ranch Road was 0.4 miles away, raising a serious credibility issue with regard to the defendant’s justifications for the project,” the motion stated.

Kyle’s petition for a permanent injunction also charges that TxDOT did not publicize the intent to remove trees by giving reasonable notice to the public or holding a public hearing, thus “depriving … citizens and landowners in Bandera County of our constitutional and statutory rights.”

“I only learned about the project when the little orange flags appeared alongside the road,” Kathryn Kyle, daughter of the plaintiff, stated.

Additionally, the suit contends that the required environmental and archeological studies necessary for the project were not conducted.

In a letter to Elvia Gonzalez, project manager in TxDOT’s environmental affairs division, Cynthia Cox Payne, who also serves as attorney for the plaintiff, took exception to the agency excluding the project from an environmental impact study project. Apparently TxDOT personnel believed the actions - cutting down heritage pecan trees - “do not have a significant impact on any natural, cultural, recreational, historic or other resource.”

Santa Anna saplings

Calling the pecan grove “another important natural resource to be impacted negatively by the project,” Cynthia Payne’s letter continued, “At least one of these trees, possibly two, was in existence when Santa Anna overtook the Alamo and went on to San Jacinto. It is incomprehensible that the project has been deemed to have no significant impact on that beautiful natural resource.”

The letter also cited that the redesigned highway would venture close to the virtually unpolluted Medina River, making the waterway vulnerable to run-off containing oil and gasoline products from vehicular traffic.

During an earlier hearing, Norris Warner II, certified arborist, testified that the grove contains native pecan trees that range from 180 to 310 years of age.

Calling it “one of the most beautiful scenic spots in the county,” he said the grove also has historic significance and could harbor an archeological site, as well.

Expressing a fondness for the endangered pecan grove, Wesley Kyle, whose grandfather established the Kyle Ranch in 1928, commented in an earlier interview, “When we got to the trees, I knew I was home.”

Awaiting decision

After attorneys’ arguments before the appeals court concluded, justices indicated they would expedite their decision.

Although Bonnan apparently believed they might render a decision in two weeks, John Payne felt a more reasonable timeframe would be one or two months.

“The panel understands this is an important case,” he said, adding he felt the justices realized the “far-reaching implications of their decision.

“The natural resources of Bandera

County are extremely important to my clients. In my opinion, TxDOT has neither concern nor care about a seven-mile stretch of road in Bandera County. It is not even a blip on their radar,” he explained.

“But if we win this case, it may change the way TxDOT does business statewide. They can’t let that happen.”