                THE        ATITORNEY         GENERAL
                              OP    %-EXAS




                                                 --1          /               -
     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
                               - $79 -
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
                              - 380 -
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
                            * 381 -
       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
                                    -38a-
  .:
        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
                                     -*so      ,;
           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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