.,ITORNY;Y         C&NIcHAL



                                                June 9, 196-i'

         Hon. J. R. Singleton                                  Opinion No. N-87
         Executive Director
         Texas Parks & Wildlife                Dept.           Re:   What 1s the seaward
         Auat in, Texas                                              boundary of Texas and
                                                                     whether Texas can unl-
                                                                     laterally  extend its gulf-
                                                                     ward boundaries;  and, If
                                                                     so, how far can such
                                                                     boundaries be extended,
             Dear Mr. Singleton:                                     and related questions.
                        You have recently requested the opinion of this Office
             conaernlng the extent of your authority      to regulate fishing   In
             the waters of the Gulf of Mexico off the aoast of Texas.         You
             cited Chapter 286, Acts’of    the 47th Legislature,    page 454
             (enacted In 1941 and codified     as Article  5415a, Vernon’s Civil
             Statutes),    which fixed the gulfward boundary of Texas at 27
             marine leagues from the coast.      This Article   was amended in
             1947.80 as to extend the boundary of Texas seawalrd to the outer-
             most limits of the Continental Shelf (Acts 1947, 50th Leg., p.
             451, ch. 253).
                      Mention la also made of Public Law 89-658, passed by
             the 89th Congress of the United States In 1966, codified  as
             Sections 1091-1094, Title 16, United States Code. This legls-
             latlon   eetabllshee a fisheries eohe off the coast of the United
             States, the limit of such zone being 12 nautical miles Into the
             sea from the coast.

                       YOU state that you are presently   exercising   control and
             regulation  oi fishing   In aoaatal waters extending irom the shore
             to a line 3 marine leagues Into the Gulf cf Mexlae and you won-
             der, In view of the above cited statutes,     whether you should
             attempt ta exercise    jurisdiction over fishing   out to the 12
             nautical mile line as set by the federal Fisherlea      Zone Act or
             to the boundary as set by Article    5415a.   Your specific    questions
             are as follows:
                              (1)   ;~;nZ;;;;sunllate~ally       extend Its gulfward
                                                  * and, if so, how far can such
                                    boundarles’be      extended?
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                                                                     r




Hon. J. R. Singleton,   Page 2 (MW87)


         (2)   Do preaent applicable  fishing re latlons
               of Texas apply to the twelve   12 mile
               fisheries zone created by PL BYg-658.  If
               not, to what portion of the twelve (12)
               mile zone do they apply?
         (3)   Do present applicable  fishing  regulatlcns
               apply to an area contiguous to the Texas
               shore extending out twenty-seven    (27)
               marine miles or to the edge of the contl-
               nental shelf?
         To answer these questions,    it is necessary to consider
the history of the ownership of the submerged lands off the
aoaet of Texas.      In 1950, the Supreme Court of the United States,
In Unlted States v. Texas, 339 U.S. 707, 340 U.S. 900, held that
themlted      States possessed paramount rights ln all submerged
lands off the coast OS Texas seaward of the low-water mark. In
1953 the Congreea of the United States passed the Submerged
Lands Act, 67 Statutes, 29, aodlfled     as Sections 1301-1315, Title
43, United States Code. This enactment relinquished        the title
of the United States in the submerged lands off the shores of
the coastal    states to the states.   The seaward extent was set
at 3 geographic miles distant from the coast line, or such ad-
dltlonal   distance as its seaward boundary existed from its coast
at the time a state became a member of the United States; with
a limit of three miles in the Atlantic      and Pacific Oceans and
three leagues in the Gulf of Mexico.       The record in the Congress
made It clear that the Texas boundary at ail times since 1836
existed at three marine leaguea in the Gulf of Mexico.
        The gulfward boundary- OS Texas subsequently       was confirmed
at 3 marine leagues from the coast.   -United States      v. Louisiana,
et al., 363 U.S. 1 (1960).
          It eheuld be observed that the Submerged Lands Act
relinqulshcd   to the states all right,   title   and lntereet to the
lands beneath the coastal waters and to “natural resourcea”        in
the area in queet.len.    See Seation 1311 of Title 43, U.S.C.;
Section 1311 also declares that it ia the intent sf Congress
to leave the management, admlnlstratlen,       development and use
of the “natural resources”    to the states.
        The term “natural    resources”   was defined   in Section
1301 aa follows:


                              -394-
Hon. J. R. Singleton,    Page 3 (M-87)


              “(e)  The term ‘natural resources’      ln-
        eludes, without llmltlng    the generality   thereof,
        oil,  gas and all other minerals,    and fish,
        shrimp, oysters,   clams, crabs, lobsters,    sponges,
        kelp, and other marine ~anlmal and plant life but
        does not include water power[ or the use of water
        for the production    of power.'
          Accordingly,  It would seem clear that the State of
Texas now has ownership of the natural resources    including
marine life within the area ceded by the Submerged Land@ Act.
Furthermore, at the time of the passage of such Act in 1953,
Texas was given the exclusive    power to regulate the natural
resources   in such area.
         Ae noted above, the case of United States v. Louisiana,
         363 U.S. 1 (1960)     determine3 ‘th’ t T    hd         hip
%‘%%submerged     land and’all     attendant zeso%ie   ?n ?:::,a
bounded by a line 3 marine leagues distant from Texas’ coast,
Moreover  , this case also decided the rights of tha United
State6 In the ~eubmerged lands off the coast of Texas beyond
such 3 league line,    and at page 84 of the opinion,    the Court
defined the respective    rights of Texas and the United States
as fOllOW8:
                “As to the State of Texas, a decree will be
         entered (1) declaring     that the State is entitled,
         as against the United Statea, to the lands, mln-
         erals,   and other natural resources underlying       the
         Gulf of Mexico ta a distance of three leagues from
         Texas’ aoaat, that is, from the line of ordinary
         low-water   mark and eutcr limit of inland waters;
         (2) declaring    that the United States is entitled,
         as against Texas, to no interest      therein;   (3)
         declaring   that the Unlted States is entitled,       as
         against Texas, to all 8uch lands, mlnerala,         anti
         resources   lying beyond that area, and extending
         to the,edge of the Continental Shelf;        (4) enjoining
         the State from interfering     with the rights of the
         United States therein;     and (5) directing    Texas
         appropriately    to account to the United States for
         all sums of money derived since June 5, 1950,
         from the area to which the United States 1~ de-
         clared to be entitled.”


                             -395-
Hon. J. R. Singleton,    Page   4 (M-87)



         This language will admit no other interpretation     but
that the United States,   as against Texas, is entitled    to all
lands, mlnerala and resources    lying gulfward beyond the 3
marine league line, and extending seaward to the edge of the
Contlnental Shelf.    The statutes of Texas, which are cited
above and which purport to set the boundary of Texas at a
greater distance gulfward than the 3 marine leagues from the
coast are Ineffective   as a result of this decision.     The gulf-
ward boundary of Texas is a line extending 3 marine leagues
from the coast,   and no action of the Legislature    or any offl-
clal agency of Texas aan extend this boundary any further into
the Gulf of Mexico, without the approval of the United States.
          Our analysis of United States v,, Louisiana,    et al. is
conslatent   with the meaning read 1 t thl     d 1 1      b th
courta of Texas.     Employer8 MutualnCEsualtsy Ern~a~~ vJ: Sarkels,
407 S.W;2d 839 (Tex.Clv.App.    19bb, error ref.,  n.r.e.1.
         Furthermore, the above mentioned federal Fisherlea         Zone
Act contains   no provision   enlarglng a state’s    ownership of sub-
merged lands and the attendant reseurcc8 and no provision
enlarging a state’s    power ts regulate lands and resources wlth-
in the fisheries   zone.    On the contrary,   the Act spec~flcally
states that it shall not be “construed       as extending the Jurls-
diction  of the states to the natural re8ources beneath and in
the waters within the flaherlea      zone estabilahed.   . .”
          The above dlaauaslon ehould answer most of the ques-
tions   you have submitted tt this offlae.   Texas cannot uni-
laterally   exbend its gulfward boundaries by legislation.      The
flehlng regulations    promulgated by Texas apply only to the 3
marine league boundary, an@ not tut to the 12 nautical mile
line act by Public Law 8 -658, or te the Continental       Shelf line
as provided ln Artlclt    52 15a.
          Thre ~ztlll remains t~he question OS whather Texa8,
while owningthe     submerged lands and rtamarcea ln an area bounded
by a line 3 marlne leagues from the Coast, oan exElualvely
regulate,   aontrtl and administer the rtseuraez feund within
auch.boundarlas.     The SubmergedLands Act. stated that it was
the policy of’ the. United Stat~ez Congrera to permit the COaStal
states to control and regulate the development of the natural
resources in the area ceded under the Act.
          In Cersa v. Tawes,, 149 F.Supp. 771 (D.C. Md. 1957)’
a three   judge district ceurt held that the regulatlen  OS Coastal

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    Hon.   J.   R. Singleton,        Page    5 (M-87)


    fisherlee      in the territorial          waters   granted    to the states        by
    th& Submerged Lands Act was within the police                     power 3f the
    individual       states,     absent    any conflicting      legislation       by Csn-
    gress     lmpssing     regulatory      procedures     under the Commerce Clause
    of the United States            Constltuti3n.       The decision        was affirmed
    by the Supreme Cmrt             of the United States,         without     discussion,
    at 355 U.S. 37 (1957).
                 There has been no federal              legislation          which purports
    to regulate        the fishing      industry      within       the 3 league       line,    and
    the only Act generally            in point       being the Fisheries             Zone legi&-
    latlon     referred    to and discussed           above.         Section      4 of this
    statute      provides    in part that nothing              in the Act shall          be
    interpreted        as “dlmlnlshlng”         the jurisdiction             of the several
    states     to administer       “the natural         resources         beneath    and in the
    fisheries       zone”.     Therefore,       this    enactment         seems to be con-
    firming      the policy     of Congres s expressed               in the Submerged LEnde
    Act that the states          will be empowered to regulate                     and control
    resources       within   the boundaries          confirmed,         and in the case of
    Texat,     three marine leagues           gulfward.          It is therefore          concluded
    that Texas may presently              exercise      exclusive         regulation      of fishing
    from its shores        to the three         marine league           line.
                 As to the State’s          right     to regulate        flehlng     outside    the
    3 league gulfward          boundary,       there     are cases which hold that               in the
    absence      of conflicting         Federal     legislation       the States        may so
    regulate      ae to their       citizens      and for their          protection       and the
    protection      of their      adjacent       natural      resources.         Sklrlotee     v.
    Florida,      313 U.S. 69 (1941) and cases cited                     therein.       However,
    untilhe        Legislature        so provides,         it is apparent         that this      la a
    hypothetical       queetlon.         The long-established              policy    of this     office
    is not to attempt          to pass upon hypothetical                 questions.        Obviously,
    the best procedure           here would be for mutual agreements                      between
    the State      and the Federal          Government        in the area gulfward            of State
    boundaries.        If this      is not possible,            then the Legislature           may
    want to consider          any action        which would not conflict               with Federal
    leglslatlon,       and In such event we will then be glad to pass upon
    the legal      questions      which may arise.
                                         SUMMARY
                The gulfward    boundary    of the State       of Texas
                Is a line three marine leagues          distant      from
                the coast and in such waters Texas 15
                empowered to control       and regulate      fishing.
                Texas cannot unilaterally        extend its gulfward
                boundary   by legislation.
                                                   -397-
Hon. J. R. Singleton,   Page 6 (M-87)


                                        j%$4   very truly,




Prepared by Lonny F. Zwiener
Assistant Attorney General
APPROVED: OPINION COMMITTEE
Hawthorne Phillips, Chairman
W. V. Geppert, Co-Chairman
Arthur Sandlin
Milton Richardson
Kerns Taylor
W. 0. Schultz
STAFF LEGALASSISTANT
A. J. Carubbi, Jr.




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