The Attorney General of Texas
December 15, 1978
JOHN L. HILL
Attorney General
Honorable Bob Armstrong Opinion No. H- 1284
Commissioner, General Land Office
Stephen F. Austin Building Re: Authority of the General
Austin, Texas 78701 Land Office to regulate
activities on adjoining lands.
’ Dear Commissioner Armstrong:
You ask four questions concerning the authority of the General Land
Office to regulate activities on adjoining lands. You first ask:
1. Whether the Commissioner of the General Land
Office has authority to institute, through the Attorney
General’s Office, proceedings in court to abate
activities on adjoining lands, not administered by GLO,
when those activities would adversely affect state
lands or flats administered by GLO.
The Commissioner of the General Land Office is given authority, in
conjunction with various boards, to administer certain state-owned lands. See
Nat. Res. Code S 33.001, et se . (coastal public land); S 51.001, et (pub=
domain); S 161.001, et se Veteran’s Land Fund). See also Nat. Res. Code S
31.051(3) (general duties
-9-- ; SS 63.121, 63.152 (commissioner referred to as
“trustee of the public lands of this state”).
In our opinion the general authority given to the commissioner over
certain public lands allows him, subject to the authority of the appropriate
board and through the attorney general, to institute court proceedings to
abate nuisances or other activity adversely affecting those lands subject to
his administration so long as jurisdiction over the activity sought to be abated
does not lie with another agency. This last qualification is necessary because
the legislature may vest designated state agencies with the authority to abate
or regulate certain nuisances. V.T.C.S. art. 4477-S (Texas Air
Control Board); V.T.C.S. art. 4477-7 =+-= Texas Water Quality Board); Nat. Res.
Code S 131 (Railroad Commission). A common law nuisance action may not be
brought against an activity that has been lawfully authorized by the
appropriate state agency. Dudding v. Automatic Gas Company, 193 S.W.2d
517 (Tex. 1946); Schulman v. City of Houston, 406 S.W.2d 219 (Tex. Civ. Ape.-
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Honorable Bob Armstrong - Page 2 (~-1284)
Tyler 1966), writ ref’d n.r.e. per curiam, 412 S.W.2d 34 (1967). Also, when an agency
has general authority over an activity or when that activity is regulated by statute,
courts may conclude that common law rights have been preempted by the grant of
power to the regulatory agency. Walker v. Texas Electric Service Company 499
S.W.2d 20 (Tex. Civ. App. - Fort Worth 1973, no writ) (electric transmission’lines
not a nuisance for interfering with aviation because in compliance with statute and
Airport Zoning Authority given power to remove lines if they interfere with
aviation). The test courts generally use is whether the provisions of law are
adequate to effect the purposes sought to be advanced. Compare Goldsmith v.
Powell, 159 S.W.2d 534 (Tex. Civ. App. - Dallas 1942, writ ref’d) (penal code
aon inadequate to protect waters from pollution so nuisance action allowed)
with
- New Mexico ex rel. Norvell v. Arizona Public Service Company, 510 P.2d 98
(N.M. 1973) (state environmental protection act adequate to protect public so
nuisance action dismissed). Sometimes a statute will declare whether common law
actions are intended to be preserved or preempted. See, e.&, Water Code S 26.133
(common law remedies preserved); V.T.C.S. art. 4477-5, S 1.06 (common law
remedies preserved). Whether a nuisance action, or other common law remedy,
could be maintained in any particular instance would depend on the type of
nuisance involved and the statutes and agencies having jurisdiction over that
activity.
Your second question is:
2. Whether, and to what extent, the management policies
developed by GLO for the protection of state lands under its
administration would be controlling for a court in deciding
whether the public interest in lands administered by GLO
was being violated by a specific activity on adjoining lands.
The state may not declare any activity to be a nuisance that is not a nuisance
in fact. Stockwell v. State, 221 S.W. 932 (Tex. 1920). The determination as to
whether a specifm acttvtty is a nuisance is ultimately a judicial one. Crossman v.
City of Galveston, 247 S.W. 810 (Tex. 1923). This is true even when the legislature
declares something to be a nuisance, but the courts will decide contrary to the
declaration of the legislature only in clear cases. Stockwell v. State, E. While
the management policies of the General Land Office would carry weight in the
courts, we do not believe they would be controlling.
Your third question is:
3. In situations in which the legal sufficiency of an agency
position is not at issue, can the Attorney General reject, on
the basis of his independent substantive policy evaluation,
the request of a co-equal statewide elected official to
institute a suit necessary for the fulfillment of the latter’s
constitutional duties.
The attorney general is the chief legal officer of the state. Tex. Const. art.
4, S 22. He may not be deprived of his right to prosecute actions for the state.
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Honorable Bob Armstrong - Page 3 (~-12841
Maud v. Terrell, 200 S.W. 375 (Tex. 1918). He has the right to “investigate the facts
and exercise his judgment and discretion regarding the filing of a suit.” Agey v.
American Liberty Pipe Line Co., 172 S.W.2d 972, 974 (Tex. 1943). Mandamus will
not lie to compel the attorney general to file a suit because it is his duty, as the
state’s chief legal officer, to determine
tflirst, . . . that an offense has been committed; and, second,
that there is a reasonable probability that it may be
prosecuted to a successful issue. . . .
Lewright v. Bell, 63 S.W. 623 (Tex. 1901).
In our opinion the attornev general must exercise his indeoendent orofessional
judgment with regard to quesi&s of a legal nature surrounding the filing of a
lawsuit and the courts will uphold his decisions, at least in the absence of bad faith.
Osborne v. Keith, 177 S.W.2d 198 (Tex. 1944); Marshall v. City of Lubbock, 520
S.W.2d 553 (Tex. Civ. App. - Amarillo 1975, no writ). Of course, the attorney
general’s role as the state’s chief legal officer generally defines his authority to
include only decisions of a legal nature or ones that are legally-related. In
administering lands under the authority of the General Land Office, it is within the
authority of the commissioner and the appropriate board to make policy judgments
that are in the best interest of the state’s lands and do not involve legal issues that
are committed to the discretion of the attorney general.
Your fourth question is:
Whether the GLO can bring suit, through the Attorney
General’s Office, against federal agencies to represent the
public interest in state lands or flats administered by GLO
when activities permitted or carried out by federal agencies
would adversely affect state lands or flats administered by
GLO.
The doctrine of sovereign immunity prohibits suits against the United States
without its consent. Affiliated Ute Citizens of Utah v. U.S., 406 U.S. 128 (1972). A
broad. but not unlimited, consent to sue federal agencies is found in 5 U.S.C..
section 702 which states:.
A person suffering legal wrong because of agency action
. . . within the meaning of a relevant statute, is entitled to
judicial review thereof. An action in a court of the United
States seeking relief other than money damages and stating
a claim that an agency or an officer or employee thereof
acted or failed to act in an official capacity or under color
of legal authority shall not be dismissed nor relief therein be
denied on the ground that it is against the United States. . . .
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Honorable Bob Armstrong - Page 4 (H-1284)
Under this section, there is a strong presumption in favor of reviewability of
agency action that will be overcome only by clear evidence that Congress intended
to disallow it. Data Processing Service v. Camp, 397 U.S. 150 (1970); Barlow v.
Collins, 397 U.S. 159 (1970). To challenge agency action, a plaintiff must allege
injury in fact and that the interest sought to be protected is arguably within the
zone of interests protected by the statute in question. l&; see U.S. v. SCRAP, 412
U.S. 669 (1973) (discussion of injury in fact); Cotovsky-Kazn Physical Therapy
Association, Ltd. v. U.S., 507 F.2d 1363 (7th Cir. 1975) (discussion of interests being
arguably within zone of interests protected by statute); Robinson v. Knebel, 550
F.2d 422 (8th Cir. 19771 (standing to sue under National Environmental Policy Act,
42 U.S.C. 5 4321, et seq.). Under this section, states have been permitted to sue
federal agencies in order to protect lands in which the state has an interest.
Illinois ex rel. Scott v. Hoffman, 425 F. Supp. 71 (S.D. Ill. 1977); Delaware v.
Pennsylvania New York Central Transportation Company, 323 F. Supp. 487 (D. Del.
1971). States have also maintained certain suits based on the provision for general
federal question jurisdiction, 28 U.S.C., section 1331, in conjunction with the
National Environmental Policy Act. Alabama ex rel. Baxley v. Corps of Engineers,
411 F. supp. 1261 (N.D. Ala. 1976); Pennsylvania v. Morton, 381 F. Supp. 293
(D.C.D.C. 1974). In our opinion the Commissioner of the General Land Office may
bring suit through the Attorney General’s Office against federal agencies under the
terms of 5 U.S.C. section 702 and 28 U.S.C. section 1331.
SUMMARY
So long as jurisdiction over the activity sought to be abated
does not lie with another agency, the Commissioner of the
General Land Office has general authority to institute,
through the Attorney General’s Office, court proceedings to
abate activities that adversely affect state lands admin-
istered by the GLO. In deciding whether or not specific
activity was illegally and adversely affecting state lands,
management policies developed by GLO would have per-
suasive value, but would not be controlling on a court. The
attorney general has the discretion to use his professional
legal judgment in deciding under what circumstances a suit
should be filed, but policy decisions regarding the main-
tenance of certain state lands are committed to the
authority of the commissioner and the appropriate boards.
GLO may bring suit, through the Attorney General’s Office,
against federal agencies under the terms provided by federal
statutes.
Attorney General of Texas
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Honorable Bob Armstrong - Page 5
APPROVED:
Opinion Committee
jsn
p. 5072