The Black Gap Bumble: Facts Speak For Themselves; Black Gap Not An Isolated Incident

Texas Governor Rick Perry and Land Commissioner Jerry Patterson were in full-on “react & spin” mode Tuesday and Wednesday amid criticism about the sale of land in the Black Gap Wildlife Management Area, (blogged at Capitol Annex as “Texas’ Natural Herigage: For $ale” on Tuesday).

As the story, brought to the attention of the Blogsphere and the media by DriveDemocracy and the Texas Progress Council, unfolded Tuesday, Rick Perry was offering his usual brand of “I’m Proud of Texas and I’ll Fix This” spin, which appeared in morning papers Wednesday.

Some outlets, like the Houston Chronicle, made Perry’s spin the story, instead of focusing on the real issue, which is the sale of the Black Gap land.

Land Commissioner Jerry Patterson and his public relations team jumped in on the act, too, sending out a press release entitled, “Black Gap Wildlife Management Area Facts” along with confusing maps that purported to denounce nearly each and every fact espoused by the Texas Progress Council’s Glenn Smith and paint the land swap that led to the sale as a good thing for Texas Parks & Wildlife.

The problem with General Land Office’s fact sheet, however, is that their facts are “subject to interpretation. That’s a nice way of saying that the so-called facts are, at best, questionable.

The GLO’s fact sheet makes this statement:

Again, no portion of the BGWMA is for sale, there has been no offer for BGWMA land, and therefore no “bidder” has been turned down. Mr. Smith is intentionally misleading the public. He purposefully described the possible sale or lease of PSF land adjacent to Black Gap, as the sale of Black Gap itself.

However, reports in the Big Bend Gazette, a monthly magazine covering the Big Bend area, contradict this—and the reports are backed up with facts from public information obtained from the GLO:

Under documents obtained by The Gazette under the Texas Public Information Act, CEMEX, Inc., a Houston subsidiary of the Monterrey, Mexico-based international cement conglomerate CEMEX S.A. de C.V., has offered $3,461,658 for a 25,071-ACRE chunk of Black Gap. The offer by CEMEX would net the state a profit of $729,212 or $29.08 per acre above its appraised value.

The GLO has rejected the offer. Calls to CEMEX’s world headquarters in Monterrey and U.S headquarters in Houston were not returned by press time. CEMEX owns the nearby 514,000-acre El Carmen Wilderness Area in Mexico. Both CEMEX and company CEO Lorenzo H. Zambrano have won international acclaim and awards for their commitment to environmental protection.

Addressing the GLO’s claim that Smith is misleading the public by describing, “the possible sale or lease of PSF land adjacent to Black Gap, as the sale of Black Gap itself” is also short on truth.

Why? That will require some explaining, which, convinently, the GLO has already done half of the work:

Texas Parks and Wildlife Department (TPWD) and the Texas General Land Office (GLO) exchanged lands to consolidate checker-boarded property near Black Gap Wildlife Management Area (WMA), and actually ADDED 10,181 acres to TPWD land holdings.
Background: In 1997, the Legislature passed House Bill 770, directing the School Land Board, the GLO and the TPWD to transfer land holdings within any state park or wildlife management area, such as Black Gap WMA.

This bill was passed because the Land Office owned acreage within the boundaries of TPWD property. As a result, a map of the Black Gap WMA looked like a checkerboard and management of the property was problematic.
Since TPWD didn’t have enough money to buy the acreage, the GLO swapped adjacent tracts of land with TPWD. As a result of the land swap TPWD now owns more acreage in the area.

Plus, TPWD bought 3,117 acres in the wildlife management area that the agency had been leasing from the GLO.
The land exchange was not “so it can be sold.” The land transfer was to consolidate land holdings by each agency so that they will have contiguous boundaries, improving management of each area.

The other half of the explaination is this: The GLO and Patterson are claiming that, because the land has been transferred from TPWD to the GLO, it’s no longer the “Black Gap WMA land.”

It’s as if I traded you my Pepsi for your Sprite and then told you that the Pepsi was now a Dr. Pepper because I had a Pepsi, so you now couldn’t possibly have a Pepsi.

The GLO’s explaination holds no water. The land is still the same land it was before the GLO had it; it’s still the land that was a vital part of the wildlife management area and a major part of Texas’ natural heritage. It didn’t suddenly morph from untamed river frontage into a bunch of insignificant foothills just because it is in the possession of another agency.

The bottom line is that the land is what it is. Just because it may technically no longer be part of TP&WD does not mean its significance is any less or that it isn’t land from the Black Gap Wildlife Management Area. Though it may not bear that designation, it is still management area land.

That the park gained land is true; but the significance of the land gained pales in comparison to what was lost.

Black Gap Not An Isolated Incident

Making matters worse for Patterson and the GLO—especially concerning whether the GLO’s claims that the land is not for sale are truly legitimate—is the fact that this land transfer and public sale is not an isolated incident.

An eerily similar situation is in progress near Azle in the Dallas/Fort Worth area.

There, 400 acres set aside for a state park on the eastern shore of Eagle Mountain Lake has already been transferred to the General Land Office and the Azle News reports that potential buyers have been sought by the GLO to turn the land into residential development.

Public outcry over the Eagle Mountain Lake situation has been fairly significant:

•300 People attended a rally on July 13 to support the land being used for a park.
•The chairman of the Texas Parks & Wildlife Commission is trying to postpone the sale until park supporters can raise the money to build the state park on their own, without state funding.
•State Rep. Charlie Geren (R-Arlington) organized the July 13 meeting and is quoted as saying, “We’re going to fight for this to be a park.”
•The Tarrant County Regional Water District has offered to pony up $10.5 million to buy the land and mineral rights and keep the area as a park.
•Congresswoman Kay Granger (R-Fort Worth) has asked that the land not be sold to private developers.

There is also something else. The GLO made a comment on “underutilized” land and the ability of the Governor to sell state properties in its release and outright defense of the Governor:

Land owned by the Texas General Land Office is Permanent School Fund land and cannot be sold by the Governor. The Commissioner of the General Land Office and the School Land Board make all decisions about the sale of PSF land.
Any non PSF land identified for sale by the Governor appears on an Underutilized Land Report, which is then acted upon by the GLO. Black Gap is not on this list.
Background: Governor Rick Perry is not going to sell any land in the area because it is not his to sell. Any land involved in this area would be sold by the Land Office. The School Land Board would make any decision to sell Permanent School Fund land. Property owned by the Texas Parks and Wildlife Department — such as the Black Gap Wildlife Management Area — is not for sale – and the GLO simply does not have the authority to sell it.

Before you read what follows, remember this: The Eagle Mountain Lake land became GLO land. The GLO says:

“Land owned by the Texas General Land Office is Permanent School Fund land and cannot be sold by the Governor.”

Ok. GLO Land EQUALS Permanent School Fund Land. Permanent School Fund Land EQUALS land that cannot be sold by the governor (according to the GLO).

If the GLO is telling the entire truth, then, explain this:

In December, Gov. Rick Perry added the parcel to a for-sale list of “underutilized” state properties. Soon after, Parks and Wildlife officials spoke of selling it for the highest price possible.

and this:

Late last week, Texas Parks and Wildlife Commission Chairman Joseph Fitzsimmons asked the Texas Land Office to postpone the sale of the land for at least four months.

If the land isn’t GLO land, why is the GLO selling it? Even if the Eagle Mountain Lake land is STILL in control of the TP&WD, why is the GLO involved if the GLO claims they can’t sell it:

Property owned by the Texas Parks and Wildlife Department …is not for sale – and the GLO simply does not have the authority to sell it.

Really? Their website consents they have the authority to lease the land.

And, actually, the GLO would be the body statutorly obligated to sell the land if Perry wanted it sold, via the Texas Natural Resources Code:

§ 31.1573. REAL ESTATE TRANSACTIONS AUTHORIZED BY GOVERNOR.  (a) The land office shall take charge and control of  real property as necessary to conduct and close a real estate transaction authorized by the governor.

And, the School Land Board mentioned by the GLO’s release actually has first right to purchase any land from another agency which could later be sold:

§ 31.159. FIRST OPTION TO PURCHASE.  (a) The School Land  Board has a first option to purchase real property authorized for sale by the legislature or the governor.  The board may exercise its option by tendering cash for market value as mutually agreed on by the board and the state agency that owns the real property, but the purchase price may not be less than market value.  For purposes of this section, the division may request more than one appraisal to
determine market value.  If the parties cannot agree on a value, the board and the state agency that owns the real property shall follow the procedures provided by Subsections (d) and (e).  The board may not pay more than market value.

One way or another, regardless of whether the land is “underutilized” and directed to be sold by the governor, or if the land becomes PSF land and is sold by the School Land Board, the GLO is involved. They have the statutory authority.

Per the Big Bend Gazette article, the GLO and TPWD have entered into a Memorandum of Understanding for the type of transfers taking place in Azle and in Big Bend. The Gazette quotes from the MOU:

“On or before December 1, 1997, the General Land Office, the School Land Board, and the Parks and Wildlife Department shall develop a plan for the removal or  conveyance to the Parks and Wildlife Department pursuant to one or more sales, exchanges, or other transfers of the surface estate in any real property dedicated to the permanent school fund that is located within the boundaries of any tract managed by the Parks and Wildlife Department, including a state park, wildlife management area or scientific area but not including a coastal preserve.”

The Gazette says this is also an improper interpretation of HB 770 from the ‘97 session and that the transfers are supposed to be from GLO to TP&WD, not vice versa or as exchanges.

Finally, the Gazette quotes from a GLO letter to a local official in the Big Bend Area that admits to the offer from CEMEX, leaves the door open for a future sale, and points out that the job of the GLO is to get the maximum dollar possible for PSF lands:

“Since completing the sale and Trade with the Texas Parks and Wildlife Department last year, the General Land Office (GLO) was approached by CEMEX, who expressed interest in purchasing the property as part of a conservation initative. The GLO was not interested in selling them the property at that time and does not have any plans to sell the property. This does not mean the property will never be sold since the primary reason of the Permanent School Fund is to generate income for public education. We will consider any offers brought to us, however the GLO has no plans to sell the property at this time.”

From the above GLO letter, bear this phrase in mind:

“…the General Land Office (GLO) was approached by CEMEX, who expressed interest in purchasing the property as part of a conservation initative…”

Compare that to the GLO’s press release:

Again, no portion of the BGWMA is for sale, there has been no offer for BGWMA land, and therefore no “bidder” has been turned down.

It’s almost not debatable whether or not the GLO is telling the truth. Remember, their version of the truth hinges on the technicality. The GLO claims that, since the land is now GLO land it is not BGWMA land. So, to them, they are telling the truth because of semantics.

The reality is that the BGWMA land itself—regardless of who now exercises care and control over it, since it is still the Black Gap land—did have an interested buyer, that the GLO told local officials about, though they now claim it has never had a buyer and isn’t for sale, and that no “bidder” was turned down.

Technically, that’s true. No “bidder” was turned down because there was no bid process. I suppose the GLO would prefer it phrased as “a buyer was turned down.”

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