The Texas Attorney General's office has waded into a years-long fight over a fenced-off East Texas waterway, asking an appeals court to determine that Creslenn Lake is a public waterway and arguing that the connected Cutoff is navigable. The opinion lands just as the case reaches a critical stage before the 12th Court of Appeals, giving a long-running community fight its first backing from the state's top legal office.
According to The Texas Tribune, the Attorney General's office wants the courts to determine that Creslenn Lake, which connects to the Cutoff, is a public waterway. The filing marks the first time the agency has offered a public opinion on the dispute, which began in 2022, the outlet reports. The office submitted its opinion in the days leading up to oral arguments before the appeals court.
The Cutoff itself is a portion of the Trinity River in Henderson County that was separated from the main river decades ago to make shipping goods from the Gulf to Dallas easier, per the Tribune's reporting. As the Gilmer Mirror notes, today the Cutoff runs as a 12-mile stream along the border of Henderson and Navarro counties, stretching from Old Cedar Creek to Creslenn Ranch Lake. For more than a century, residents of southern Henderson County fished and camped along those banks, the Tribune reports.
A Fence Changes Everything
That access ended after the surrounding land was sold to wealthy businessman Phillip Surls, who fenced off the single remaining boat ramp, according to the same report. Surls' legal team argues he's well within his rights to block access because the waterway isn't public — a position that found support when a judge ruled the waterway was not navigable, and therefore not publicly accessible.
Critics warn that letting Surls block access without consequence could set a dangerous precedent, opening the door for other wealthy landowners to claim Texas's public waterways as their own, the Tribune reports. That concern has animated Save the Cutoff, a nonprofit formed by the southern Henderson County community that has continued pushing for the waterway's return to public use even after losing nearly every court battle so far, per the outlet's reporting.
Dueling Arguments Before the Appeals Court
Lawyers for both sides addressed the court Tuesday, laying out whether they agreed with the Attorney General's opinion and making their own cases on public access, according to the Tribune. The state's filing argued that the trial court ignored the historic use of Creslenn Lake and erred in concluding that neither the Cutoff nor Old Cedar Creek are navigable.
Eric Allmon, who represents Save the Cutoff, agreed with the Attorney General's arguments and said the opinion strengthens what he called an already compelling case that the waters should be considered navigable, the Tribune reports. Blake L. Beckham, a Beckham Portela lawyer representing Iron River Ranch II LLC, pushed back hard, arguing that Creslenn Lake's water is unrelated to the Trinity River or any other navigable stream and that there is no evidence of impounding a navigable stream in the record. Beckham also said the Attorney General's arguments relied on cases that don't match the situation and a law that was later repealed, according to the same report.
What Happens Next
The 12th Court of Appeals will now review all the filings before issuing an opinion, a process the Tribune reports could take anywhere from days to months or even years. Whatever the court decides, an opinion favoring the Attorney General's position could support overturning Save the Cutoff's earlier court losses, potentially reopening the waterway for the first time since 2022.
The case also touches on broader questions of Texas water law. According to guidance from the Texas Parks and Wildlife Department, the public generally has rights to use a navigable stream and its banks, while a private landowner may generally forbid public entry along a non-navigable one — which is precisely the determination now at the center of the Henderson County fight. Separate guidance from Texas Agriculture Law notes that Texas courts apply two distinct navigability tests, evaluating whether a stream is navigable in fact or navigable in law, a distinction that could prove decisive as the appeals court weighs the competing claims over Creslenn Lake and the Cutoff.
