          THE      ATTORNES              GENERAL

                                 IEXAS




Honorable J. R. Singleton         Opinion No. M-389
Executive Director
Texas Parks and Wildlife          Re:    Liability of State for
  Department                             injuries caused by bulk-
John Ii.Reanan Building                  head bounding San Jaclnto
Austin, Tex& 78711                       State Park & Houston Ship
                                         Channel and State's re-
                                         course against Corps of
                                         Engineers who maintain
Dear Mr. Singleton:                      Houston Ship Channel.
       In your _recent request for an opinion concerning the
above captlonea matter, you advise that Article 6071, Vernon's
Civil Statutes, created the San Jacinto State Park in 1907;
that It was administered by the State Board of Control until
Article 6071b,  Vernon's Civil Statutes, placed it under the
Texas Parks and Wildlife Department along with the San Jaclnto
Advisory Board.
        Where the park bounds at the Houston Ship Channel, a
bulkhead, originally built with Federal funds during the 1930's
has been maintained. The UriitedStates Corps of Engineers
constructed this bulkhead. Lately, due to the action of water,
the ship traffic in the channel,  and the dredging operations
of the Federal authorities, the canal has been deepened to a
point which is lower than the base of the bulkhead. There is
real and immediate danger that the bulkhead will collapse and
obstruct the ship channel. An emergency appropriation of
$200,000 by the 60th Legislature, 1st Called Session, to the
Parks and Wildlife Department has now been spent for emergency
repairs and engineering studies. Your department has re-
quested additional funds for this purpose in your 1970-71 bud-
get.
       You request an answer to the following two questions:
          "1.   Should this bulkhead fall Into the
                Houston Ship Channel, what legal re-
                covery would a ffrm or individual in-
                jured thereby have against the State
                of Texas?

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Hon. J. R. Singleton, page 2 (M-389)



          "2 . What legal recourse would the Parks
               and Wildlife Department have against
               the Corps of Engineers, who maintain
               the channel?"
        It Is our opinion that your questions should be an-
swered, in such a manner as to make It clear that there is
no tort liability   whatever on the part of the State of Texas,
either from collapsing bulkheads or from obstructions caused
thereby. The State of Texas does not have any claim against
the United States for this condition. The State of Texas and
the Houston-Harris County Ship Channel Navigation District,
the alter ego of the State, both act in a governmental capa-
city only, and neither the State nor Its Instrumentality
would be liable in tort for any damages to firms or indivl-
duals operating ships In the channel. Texas Highway Depart-
ment v. Weber, 147 Tex. 628, 219 S.W.2d 70 (1949). Jones v.
Texas Gulf Sulkbhur Co., 397 S.W.2d 304, (Tex.Clv.App. 1965,
error ref. n.r.e.);yllpoy     v. Gulf Stevedore Corp (D.C. Tex.
1966) 257 F.S. 166; Torres v. 0         8 s .W.2d 30'(Tex.Civ.
  oo.
Ai.   1964.  error ref. n-r.
                         .~~
                           .e.);  5c   ..,
                                 zens:J3So  111 Waters, Set, 13,
Note 85.5; citing Torres v. Aransas County Navigation Mstrict
NO. 1, 346 S.W.2d 903 (Tex.Civ.App., 1961, no writ); 28 U.S.
7F.A. 2680; and 13 Texas Bar Journal-9 at pages 31-32,  (1950),
Shirley, The Federal Tort Claims Act.
       In connection with our conclusion of non-liability
for negligence in dredging, It is pertinent to consider fur-
ther the facts involved therein. The United States Corps of
Engineers performed the actual work of deepening the channel.
The United States has a constitutional right, even a duty, to
improve navigation for the benefit of all of its citizens who
are affected thereby. 65 C.J.S. 104, Waters, Sec. 12, Note
61.5, citing B Amusement Co. v, U.S., 148 Ct. Cl. 337, 180 F.
S. 386 (1960). The authorities recognize that a State Is
possessed of the power to improve, within the state limits,
waterways and harbors and porta, except insofar as it is pre-
vented by Federal legislation or constitutional provisions
protecting private property. 65 C.J,S, 105, Waters, Sec. 104.
In placing obstructions in navigable streams, the State will
be required to comply with the Federal statutes (33 U,S.C.A.
403) making It unlawful to perform work which has not been
recommended by the Chief of Engineers and authorized by the
Secretary of the Army.  Gouax v. Bovay (C,C.A, Mfss.), 105
F.2d 256, cert.den. 308 t?,S.607 (1939j. This Federal power
to control and improve navigable rivers is derived from the


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    Hon. (7.R. Singleton, page 3 (M-389)


    U. S. Constitution and Is exclusive as far as it extends.
    Bedford v. U.S., 36 Ct.Cl. 474, aff'd. 192 U.S. 217 (1904);
    Streckfus Steamers v. Fox, (D.C. West Va., 19x6), 14 F.S.
    312; Gibson V. U.S   166 U.S. 269 (Ct.Cl. 1897); Escanaba
    & Lake Michigan Trar&p Co. v. City of Chicago, 107 U.S.
     78 affirming 12 F. 7j7 (U S I        88 )* Southern Pacific
    co.'v. U.S., 58 Ct.Cl. 428,'ahfl?ik :662U:S. 586 (1924);
    I Farnham, page 381; 60 Tex.Jur.2d, 484-85, Waters, Sec. 176.

           In your second question, you ask what legal recourse
    the Parks and Wildlife Department would have against the U.
    S. Corps of Engineers to repair or replace the bulkhead if
    it collapses into the Houston Ship Channel.
           It Is our opinion that neither the State of Texas,
    nor any of its agencies, whether concerned with parks or
    with navigation, would have a legal remedy against the Federal
    government for what appears to be a natural and probable re-
    sult of a proper exercise of the superior Federal power to aid
    navigation by channel dredging.
              "The right to regulate commerce Involved
               the right to regulate navigation, and
               this, in turn, Involves the necessary
               uses of the submerged lands, insofar as
               such use was essential to the maintenance
               of the public highway." Scranton v.
               Wheeler, 57 Federal 803 at page 814, cited
               mrnham,       page 381, Sec. 79b.
           The State of Texas has the same rights as any other
    owner in regard to lands held. Reed v. State, 175 S.W.2d 473
    (Tex.Clv.App. 1943, no writ). This work was done with Federal
    funds under aid to the State of Texas during the great depres-
    sion forty years ago, and the Injury to bulkheads situated a-
    long the channel. adjacent to the State Dark. as a conseauence
    of normal maintenance of the ship channei Is-a consequential
    ;;ju;y pry which no legal liability attaches. Southern Pacific
                 58 Ct.Cl. 428, aff'd. in 266 U.S. 586 (Ct.Cl.,
    1924); Gibt& v. U.S    166 U.S. 269,(Ct.Cl. 1897);hity of Beau-
    mont v. Texas & New GGleans Railroad, 296 Federal 523 (D-C.
    >                               -67. Scranton v. Wheeler, 57
    %zeril 803 (6th C.A' '1693); Horstbann v. U.S    257 U s. 138
    (1921). It Is only Zere property, to which th& Federal Govern-
    ment asserts no title, is taken pursuant to an Act of Congress
    that compensation can be claimed. U.S. v. Lynah, 188 U.S. 445


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Hon. J. R. Singleton, page 4 (M-389)



(1903).  Where obstructions are authorized by law, in the bed
of the stream, such authorized works must be paid for if such
are later taken away. U.S. v. Lynah, supra. Where what is
done by the Federal Government to improve navigation is in the
exercise of a right, and the consequences are only Incidental,
no llablllty Is incurred. Redford v. U.S. 192 U.S. 217
(1904); Tempel v. U.S., 248 U.S. 121 (1918).
       We assume from your request that the dredging opera-
tions were performed in accordance with plans and decisions
of the United States Corps of Engineers. Therefore, the State
would not have's cause of action for damages to its property
under the Federal Tort Claims Act, 28 U,S.C.A. 2671-2680.
Under that Act a discretionary function or duty of a Federal
Agency cannot form the basis of a suit and the United States
Is only liable for negligence of its agents at the opera-
tional level, not for mistaken decisions at the planning
level. Mahler v. U.S., 306 F.2d 713, cert. den., 371 U.S.
923 (1962); Dalehite v. U.S. 346 U.S. 15, (1953).

                        SUMMARY
          Federal navigational power under Art. I,
          Set, 8, Clause 3, Federal Constitution,
          is superior to state powers; consequential
          damages to bulkheads such as gradual weak-
          ening over a long period of time as a re-
          sult of federal or state dredging of the
          Houston Ship Channel to a depth where bulk-
          heads collapse after many years is not a
          taking of property,
          If the bulkheads fall into the Houston
          Ship Channel, neither the Parks and Wild-
          life Department nor the State can recover
          damages resulting therefrom from the United
          States or the Corps of Engineers, which
          maintains the Channel. The State fs not




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            Hon. J. R. Singleton, Page 5 (M-389)


                      liable for exercising its governmental
                      power in aid of navigation.




            Prepared by Roger Tyler
            Assistant Attorney General
            APPROVED:
            OPINION COMMITTEE
            Kerns Taylor, Chairman
            George Kelton, Vice-Chairman
            Alfred Walker
            Jack Goodman
            Richard Chote
            Jack Sparks
            Roland Allen
            W. V. GEPPERT
            Staff Legal Assistant
            HAWTHORNE PHILLIPS
            Executive Assistant




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