Untitled Texas Attorney General Opinion

THE ATITORNEY GENERAL
OP %-EXAS

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Hon. J. R. Singleton Opinion wb. M-8r
Executive Director
Texas Parks & Wildlife Dept. Re: Authority of the Parks
Austin,. Texas and Wildlife Department
to regulate the taking
or disturbance of marl,
sand shells and other
materials within the wa-
ters of the State of
Dear Mr. Singleton: Texas.
You have recently requested the opinion of this of-
flee regarding the authority of the Parks + Wildlife Depart-
ment to restrict disturbances
_ - in the
__ bay and estuarine
. . areas
lying along the coast of Texas. Your request reaas, In part,
ab iollowe:
“We desire the opinion of your office regarding
the authority of the Parks and Wildlife Depart-
ment to regulate the private development of
State-owned water bottome.
“The destruction of bay nursery areas used by
fish and shellfish due to increased private
channel dredging, dredge fill operations and
.. spoil disposition are rendering useless these
former productive sites in Texas estuarine
areas. In addition, waterfowl feeding and
resting grounds are being destroyed by these
operatlone.
"Artlclcs 4051, R.C.S. 74, 36th Legislature,
;,4052 R.C.S. 74, 36th Legislature,
and 4053, a8 amended (Ch. 248,
th Legislature, R.S. 1963) authorize the Parks
and Wlldllfti Department to issue permlts.for the
sale, the taking away and dleturblng of ~a11 marl,
sand or gravel. ..c

“Article 976, Texas Penal Code, provides a
penalty for persons taking or carrying away
any marl, sand, sRcll.s:.or~ mudatiall~.~?? gl?aVel
under the Department's management, or disturbing
Hon. J. R. Singleton, Page 2 (M-84)

any of the marl, sand, shells or mudshell
or gravel or oyster beds or fishing waters
or operate in or upon any of the shell places,
other than la necessary or lncldent to navl-
gatlon, or dredging under Federal or State
authority without a permit from the Parks and
Wildlife Department.
“The Parks and Wildlife Department has only
exercised its authority under these statutes
to issue permits for the sale of sand, shell
and gravel.
“Article 5415-e, V.C.S., provides for proce-
dures by which the School Land Board may lease
State-owned aubmerged lands~to individuals. The
Parks and Wildlife Department has representation
on the Submerged Lands Advisory Committee.
“In sununary of an Attorney General’s Opinion
issued July 3, 1957, No. WW-150 the followin@
la quoted:
‘A permit from the Game and Fish Com-
mission to dredge shell on lands here-
tofore patented to the Nueces County
Navigation District 1s not a prere-
quisite to the removal of shell commer-
cially from said lands eo long a8 such
removal 1s incidental to authorized
navlgatlonal purposes.’
“We have interpreted this as applicable to other
navigation districts in the State.‘.
You then state:
“In view of the above-referenced’statutes and
the limitations we have placed on our authority
by administrative interpretations and by agree-
ment of a majority of the Parks and Wildlife
Commissioners, it la deemed proper to request
the Attorney Qeneral of ,the State of Texas for
advice 04 these questions:
“(1) Does the Parks. and Wildlife Depart-
ment have authority to regulate or l@lt .dle-
turbances of fish producing areas ln natural
bottoms of bay and Gulf areas when the sale of
1
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Ron. J. R. Singleton, Page 3 (M-a4)

Band, shell or gravel la not involved, nor
where petroleum development by the ffeneral
Land Office la concerned?
“(2) Does the Parka and Wildlife Depart-
ment have authority to regulate or limit dis-
turbancee,ln submerged land areas leased by
the School Land Board to, lndlvlduals?
“(3) Does the Parks and Wlldllfe Depart-
ment have authority to limit the disturbances
of submerged State-owned land leased by the
General Land Office for 011 Development?
“(4) What course of action la open to the
Parks and Wildlife Department to control the
u&z and disturbance of State-owned submerged
landa?”
By Act8 36th Leg., 2nd Called Session 1919, Chapter
74, Page 215 (codified as Article 4051, V.C.S.), the Legls-
lature placed all sand of commercial value and all of the
shells, mudshelle or gravel of whatsoever kind that may be
in-or upon any Island, reef or bar, and In or upon the bot-
tome OS any lake, bay, shallow water, rlvers, creeks and
bayous and fish hatcheries and oyster beds within the terrl-
topy therein defined, under the contrjl, management and pro-
tection of the Game and Fish Commission. The territory
defined included all the islands, reef8, bars, lakes and bays
within tidewater limits from the most interior point seaward
coextenalve with the jurisdiction of this State.
By Acts 36th Leg., 2nd Called Session 1919, Chapter
74, Page 215 (codified a8 Article 4052, V.C.S.), the Legls-
latwe invested the Game and Flsh Commission with all power
and authority necessary to carry into effect the provisions
of the chapter and likewise gave it full charge and discretion
over all matters pertaining to the sale, taklng,~ carrying away
or disturbing of sand or gravel of commercial value, and all
gravel, shells, mudshell and oyster beda.

BY the aforementioned Act, Section 5 thereof (codified
as Article 4053, V.C.S.), anyone desiring to purchase gravel,
shells, or mudshell included in this chapter, or operate in
or upon any island, reef, bar, lake, river, creek or bayou
must apply for a permit to do so from the Game and Fish Cam-
mission.
It should first be noted that the protection of the
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Hon. J. A.. Singleton, Page 4 (M-84)

natural resources of State-owned submerged lands has been
placed under the jurlsdlctlon of the Parks and Wlldllfe
Dspartment. Title 67,Vernon’s Civil Statutes; Moreover,
the tidal areas of Texas, to whicti jlour aplnlon request,10
directed, -are placed under the “management, control and
rotectlon” of your department by virtue OS Articles 4051 and
t 052, supra, with explicit leglslatlve injunction to protect
the natural rcaourcea’thereln.
However, there are conflicting interests involved ln
the tidewater areas since these lands are valuable to the
State of Texas, not only because they contain fish, shell and
other marine resources, but they are valuable also for navl-
gatlonal purposes, for 011 and gas production, and for com-
merclal and industrial uses.
For example, Article 4051, Vernon’s Civil Statutes,
provides not only for the protection of marine life but
empowers your department to sell commercially valuable marl,
sand, gravel, shells and mudshells located in the tidal areas
of the state if such sale will not endanger the breeding
grounds of fish and shellfish. See Attorney Qeneral’s Opinions
WW-1487 (1962) and C-90 (1963).Moreover, these statutes
place the protection of marine life in your hands regardless
of whether the sales of commercially valuable materials are.
involved and give your department the right to control all
disturbances in the tidal lands except where some use 1s made
of these tidal lands as may be provided for by other statutes.
Attorney General’s Opinion WW-151.
In ,some areas, the value of the commercial and lndus-
trial use overrldea the protection of marlne life. As you
note in your ~letter to us o a navigation district 1s authorized
by the State to remove marl , shell, gravel and other materials
and thereby disturb oyster beds and fish hatcheries wlthout
the. pexmlsalon of your department, ii such removal and dle-
turbance 1s incidental to an authorized navlgatlovl purpose.
Attorney Qeneral’a Oplnlon WW-150.
The School Land Board, by virtue of the provisions of
Article 5415-e, Vernon’s Civil Statutes, la authorized to lease
the surface estate in State-owned islands and submerged lands
for industrial purposea, including exploration and development
of oil and gas under prior existing laws, subject to certain
Umltatlons and conditions. This Article also provides for
the School Land Board to make comprehensive studles.of sub-
merged land management, and in a measure 1s supplemental to
the power of the Parks and Wildlife Department to conserve
and protect the natural resources of such lands. However8
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 Hon. J. R. Singleton, Page 5 (M-84)

this Act, specifically provides that:
II‘ It is expressly provided, however,
that ii is-not intended that this Act shall
repeal or modify the provisions of Chapter 3,
Title 67, Revised Clvll Statutes of Texas, as
amended, a8 it relates to the powers and duties
of the Game and Fish Commission with respect
to all matters pertaining to the sale, taking,
carrying away, or disturbing of marl, sand or
gravel of commercial value, and all gravel,
shells, mudshell, and oyster beds and their
protection from free use and unlawful dlsturb-
lng or appropriation as provided in said Chapter
3; nor 10 it intended that this Act should cre-
ate or eatabllsh any additional or supplemental
requlrementa or procedures to those set forth
in the said Chapter 3, Title 67, insofar a8 the
matters therein involved are concerned. . .”
Where tidal
lands are set aside for navigational pur-
poses or are leased for 311 and gas production or other lndus-
.’ trial purposes, the use of the glands by the navigation dla-
trSct or by the lessee must be consistent with the purpose
,:yL for which such areas are set aalde or leased. If the dls-
turbancea of the State-owned water bottoms are not incidental
to and necessary for the carrying out of navigation, or for
the production of oil and gas, or for industrial purposes,
then disturbances of oyster and fish producing areas would be
within the authority of the Parka and Wildlife Department to
control See the reasonfng of Attorney General’s Opinion WW-
150. It was stated ln Attorney General’s Opinion C-90, supra,
that:
“However, insofar as sand, gravel, marl,
shell and mudahell might be removed and sold irom
State owned tidal or submerged lands under lease
for oil and gas without disturbing or interfering
with the development of the:leased lands for 011
and gas, the Game and Fish Commlsslon la authorized
to issue permits for the sale thereof.”
In view of the foregoing and the hplding and reasoning
in the cited Attorney General’s Opinions, which we reaffirm,
it la our opinion that your first three questions should be
answered in the affirmative, subject to quallflcatlons. We
will not answer these questions categorically, but will make
one answer which will fully set out your authority in protect-
ing and conserving the natural resources ln the bottom of the
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.:
 Hon. J. R.. Singleton, Page 6 (M-84)

submerged lslands and waters.
The Parka and Wlldl1f.e Department has the authority
and duty to manage, control and protect all the marl and sand
of commercial value, and .a11 the shells, mud&hell, gravel,
fish hritcherlea and oyster beds within the territory defined
in Article 4051, Vernon’s Civil Statutes, as well as the ad-
ditional powers and duties provided in Chapter 3 of Title 67,
Vernon’s Civil Statutes, except the marl, sand, shells, mud-
shell, gravel, fish hatcheries and oyster beds that are dls-
turbed for an authorized navigational purpose, and such dls-
. turbance la incidental to and reasonsbly necessary in carrying
out such navigation, or being dleturbed by a lessee of the
School Land Board ln carrying out the purpose of the lease
(whether for 011 or gas production or other commercial or ln-
duatrlal use) and which disturbance of the marl, etc. 1s lncl-
dental to such purposes and reasonably necessary in carrying
out such purposes.
In answer to your fourth question (what courses of
action are open to you to control the use and disturbance
of submerged lands when you have authority to protect the
marine life in such areas), you have the duty and prerogative
of investigating disturbances and their affect on fish and
shell fish breeding grounds. If the party responsible will
not cease such disturbance, upon your request, you may then
report the facts to the Attorney General who will decide if
court action la warranted to limit the disturbance involved.
In conjunction with this action, or as an alternative to it,
you may wish to bring the actlvltlea caualng the disturbance
to the attention of the proper county or district attorney if
a criminal offense seems to be involved.
SUMMARY
.. The Parks and Wildlife Department has
/ the authority ‘.and duty to manage, control
and proteot all the marl and sand of com-
mercial value, and all the shells, mudshell,
gravel, fish hatcheries and oyster beds
within the territory defined in Article 4051,
Vernon's Civil Statutes, as well as additional
powers land duties provided in Chapter 3, of
Title 67, Vernon’s Civil Statutes, except the
marl, sand, shells, mud&hell, gravel, fish
hatcheries and oyster beds that are disturbed
for an authorized navigational purpose, and
, such disturbance la incidental to and rea-
sonably necessary in carrying out such nqylgatlon,
2
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 Hon. J. R. Singleton, Page 7 (M-84)

or being disturbed by a lessee of the
School Land Board ln~carrylng out the
purpose OS the lease (whether for 011
or gas production oc other commercial
or.lndustrlal use) and which disturbance
of the marl, etc. la incidental to such
.- .
purposes and reasonably necessary In
carrying out such purposes.

Prepared by Lenny F. Zwlener
Asalstant Attorney General

APPROVED:
OPINIONCOMMITTEE
Hawthorne Phllllp~r, Chalman
W. V. Oeppert, Co+d.rman
Houghton Brownlee
Kerns Taylor
Malcolm Quick
Nlel Williams
STAFF LEOALASSISTANT
A:J. Carubbl, Jr.

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