The Cutoff is a public waterway under Texas law. Locals are fighting to get it back.
Story by Michael Marks, Texas Standard. This story was originally published by Texas Standard, the national daily news show of Texas.
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During the COVID-19 pandemic, the Cutoff was a godsend for Dustin Baker’s family.
The Cutoff is a long, skinny body of water that runs about 12 miles along the border of Henderson and Navarro counties. It’s public property, owned by the state. It was originally part of the Trinity River, but in the 1920s, a levee project to mitigate flooding along the Trinity changed the river’s path and the Cutoff was separated from its main stream.
The water is calm and quiet. The banks are green and brushy, with cottonwoods cutting off the horizon on both sides. It’s a time capsule, in some ways – a relatively untouched corridor of what the Trinity River used to be like.
Dustin Baker lives nearby in Malakoff, about 75 miles southeast of Dallas.
“Whenever COVID was going on, my wife and kids, we went down there and we would stay all day every day. Take the grill, cook on the boat, go fishing,” Baker said.
Baker could teach his kids to drive the boat without worrying about other lake traffic. His daughter caught her first fish there when she was five, all by herself.
For generations, families like the Bakers have come to the Cutoff to fish, hunt, boat, bird watch, or just be outside. It’s such an important outdoor recreation space that, in 1931, the Texas Legislature passed a bill explicitly stating that the Cutoff “shall remain open to the public for fishing and hunting.”
But that hasn’t happened. For decades, people would get to the Cutoff by putting their boats into Cedar Creek – a small body of water bisected by FM 1667. Now, at the dead end of FM 1667, there’s a fence in their way. There are signs on it that say “Posted – No Trespassing.”
Fenced off
The fence has been up since February. It’s maroon and silver, about waist-high, and made of iron. A local landowner named Phillip Surls had it put up.
“There never was a fence [there] that I remember seeing,” said Thomas Ardoin, a friend of Baker’s who’s been fishing at the Cutoff for more than 40 years. “Nobody would say nothing to you, man. You would just go fishing.”
In December of 2021, Surls bought a ranch whose property includes much of the land around the Cutoff. The water that makes up the Cutoff is public, but much of the land surrounding it is private.
The following February, Henderson County’s floodplain coordinator approved a permit for Surls to do some work on the area of his property around the Cutoff. But locals noticed that workers around the Cutoff were performing tasks not covered by the permit. Not only did they build the fence which prevented access to the water, they also used a backhoe to dredge up soil from the banks. Most of it was moved to the edges of Cedar Creek. The new soil created a bigger buffer between the road and the water.
“If you look at the permit that was issued, it clearly said that it provided for no movement of earth, no movement of dirt, no disruption of drainage, no disruption of anything,” said Clint Davis, the Henderson county attorney.
The county sent Surls a notice that he’d violated their floodplain ordinance. Now, the U.S. Army Corps of Engineers is investigating whether the dredging at the Cutoff violated the Clean Water Act. On March 8, the agency gave Surls a cease-and-desist order that says work has to stop on the property during the investigation. Pending the results, the Corps has a range of actions it could take, such as fining the landowner and ordering him to restore the property to a previous state.
It’s unclear when the investigation will be over. But Baker and his neighbors aren’t waiting. They’ve formed a nonprofit organization called Save the Cutoff, and hired an environmental lawyer out of Austin – Eric Allmon of Perales, Allmon and Ice – and they’re trying to get access restored to the Cutoff as soon as possible.
“We don’t want anything extra, we’re not trying to trash this man’s name, not trying to trash his business, don’t care anything about that,” Baker said. “I just want to be able to come out here and meet Tommy with a lunch kit full of bologna sandwiches and go fishing all day.”
Baker believes that the Cutoff is a public resource that cannot legally be altered or obstructed. He keeps a manila folder with him filled with old surveys, court minutes, deed histories, and other legal documents related to the area. Whenever he’s got a few spare minutes, he’s doing research on the Cutoff, or checking in with state agencies, or lobbying to anyone who will listen.
“They weren’t really anticipating a group of hillbillies with smartphones to give them such a fight,” he said.
‘The ball has to get rolling’
Neither Phillip Surls nor his attorney responded to requests for an interview for this story. But Baker has talked to Surls. Their families are friends. Baker knew that Surls was concerned about trash and vandalism around the Cutoff, so he offered to use the Save the Cutoff nonprofit to keep it clean.
“We’ll set up trash pickups, adopt the highway, do boat ramp cleanups, and help you police the area,” Baker told Surls. “And [Surls] said ‘No, I own that, I don’t want anybody down there,’” according to Baker.
There is little disagreement the Cutoff itself is public property. House Bill 27, which the Texas Legislature approved in 1931, ensured “that the river bed of the Trinity River in Henderson and Navarro Counties shall not be sold and shall remain open to the public for fishing and hunting with the specific reference to that portion of the Trinity known as the Cut Off [sic].”
But the problem, according to Baker, is enforcement. In addition to the Henderson County Commissioner’s Court, Baker has turned to a long list of government officials and agencies to try to get the fence removed, including the Texas Department of Transportation, the General Land Office, the Texas Parks and Wildlife Department, his representatives in the state legislature, and the offices of the governor and attorney general.
He’s had a hard time getting traction with any of them, though. For example, the General Land Office issued notices in 2007 and 2010 affirming that the Cutoff and Cedar Creek were state property. But when Baker reached out to Mark Neugebauer, the GLO surveyor who issued both previous rulings, Neugebauer declined to issue another one.
Clint Davis, the Henderson County attorney, thought that once the county told Surls he had violated its floodplain ordinance, that one of these state or federal agencies with a regulatory stake in the Cutoff would come in and help his office with whatever legal actions came next, like an order to restore the area to how it was. But that hasn’t happened.
“One, I’m not sure if that’s how it should work,” Davis said. “I’m not sure we want to go out there and disturb it all and start moving dirt around. I mean who are we to say what it looked like before he did the work? But even if so, I’m sure we all know if the county were to send him a letter saying put it back the way it was a year ago, he’s not going to accept that. And if we play that hand, what’s the next step? Then are we going to have anybody on a higher level who’s going to come in on the back end and support us with legal challenges and taking it through court to get it done?”
Davis has said he’ll prosecute anyone who damages the fence, but not if they cross it on foot.
On August 22, the Save the Cutoff group’s lawyer, Eric Allmon, sent a letter to Surls and his attorney asking to restore public access to the Cutoff, or else face legal action. Surls hadn’t responded to it by press time.
A month later, Allmon sent a letter to officials in Henderson County asking that they retake possession of a county road perpendicular to FM 1667. The Park Road, as its known, has been unmaintained and inaccessible for more than a decade. But if it was useable, it could another way to access the Cutoff. If county officials fail to act within 60 days, Allmon plans to sue to compel them to reopen the road.
State Sen. Robert Nichols, a Republican from Jacksonville whose district includes the Cutoff, is the legislator taking the lead on the issue. He’s met with Baker and Surls, and looked at relevant documents like the deed and surveys of his property. So has his lawyer. But beyond that, Nichols isn’t sure there’s much else for him to do.
“I don’t think I really have a role,” Nichols said. “I think because there’s a dispute between property owners and people who like to hunt and fish – I’m a hunter and fisherman myself. You know, I want to make sure the agencies are treating everybody right. But as far as me telling somebody to do something or not do something, I don’t see that as my role.”
Nichols agrees that the Cutoff itself is public property. He says that Surls plans to take down the fence, but hasn’t done it yet because of the cease-and-desist order from the Army Corps of Engineers.
“The cease-and-desist to me, as an engineer, reads you don’t do anything in that area until we tell you what to do. So he cannot move the fence since he’s under a cease-and-desist order,” Nichols said. “So he’s very much aware when the cease-and-desist order ends, he’s gotta move that fence.”
Neither TxDOT nor Surls confirmed that he plans to move the fence once the corps ends its cease-and-desist order.
If something doesn’t happen soon, Baker said he’s willing to engage in civil disobedience to make progress – like cutting the fence to get a boat in the water.
“The ball has got to get rolling,” he said. “Nobody wants to go to jail. Nobody wants to get in trouble. But at some point man, enough’s enough. It’s just ridiculous.”
