                         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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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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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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APPROVED:




Opinion Committee

jsn




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