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TYLER — The Texas Attorney General’s office has finally weighed in on an ongoing fight over public access to an East Texas historic waterway that was fenced off by a wealthy rancher and businessman, siding with the locals.
The Attorney General’s office wants the courts to determine Creslenn Lake, which connects to the Cutoff, is a public waterway. They issued this opinion in the days leading up to oral arguments before the 12th Court of Appeals.
This opinion marks the first time the agency has offered a public opinion on the dispute, which began in 2022, and could bolster residents’ legal fight after a judge ruled the waterway was not navigable – meaning accessible by the public.
“The trial court ignored the historic use of Creslenn Lake and erred in its conclusion that neither the Cutoff nor the old Cedar Creek are navigable,” the agency’s office wrote.
Lawyers representing each side told the court whether they agreed with the opinion and defended their own arguments regarding public access on Tuesday. Now, the court will read through all the filings and issue an opinion. This could be done in a matter of days, or it could take months to years.
The Cutoff is a portion of the Trinity River in Henderson County that was dissected from the main river to make it easier for ships to transport goods from the Gulf to Dallas. Residents of southern Henderson County fished and camped on the river’s banks for more than a century.
When the land surrounding it was sold to wealthy businessman Phillip Surls, he fenced off the single remaining boat ramp.
Critics of Surls say if he is permitted to do this with no consequences, it establishes a precedent for other wealthy landowners to overtake Texas’ public waterways in the future. Surls’ legal team says he is well within his rights to block access as the waterway is not public.
Eric Allmon, who represents the nonprofit Save the Cutoff, which was formed by the community in southern Henderson County, said he agrees with the Attorney General’s arguments. Save the Cutoff has lost nearly every court battle for the Cutoff, but has continued to push for its return to public use as it was prior to 2022. The attorney general’s opinion could present enough support to overturn those losses — which it seeks to do.
“They only strengthen what we feel like was already a compelling case that the waters at issue should be considered navigable,” Allmon said.
However, Blake L. Beckham with the firm of Beckham Portela, representing Surls’ company Iron River Ranch II LLC, disagrees. He said the Attorney General’s arguments weren’t based on cases that match this situation and they focused on a law that was eventually repealed. Furthermore, the water in Creslenn Lake has nothing to do with the Trinity River or any other navigable stream, he argues.
“There’s no evidence in the record at all, up, down and sideways of impounding a navigable stream,” he said.
