,




                            December 29, 1986




    Honorable Oscar H. Mauzy             Opinion No. JM-600
    Chairman
    Committee on Jurisprudence           Ret   Whether national forests
    Texas State Senate                   and federal wilderness areas are
    P. 0. Box 12068                      within the scope of chapter 152
    Austin, Texas   78711                of the Natural Resources Code

    Dear Senator Mauay:

         Some time ago, you asked several questions about the scope of
    chapter 152 of the Texas Natural Resources Code. Because some of the
    issues raised by your request were subject to litigation, we delayed
    this response during the pendency of the litigation. See Sierra Club
    v. Block, 614 F. Supp. 134 (E.D. Tex. 1985). The Gult         of this
    litigation may be relevant to your request. This office is currently
    involved in additional litigation regarding the aftermath of past
    infestations. Accordingly, this opinion addresses only questions
    which do not relate directly to this litigation. It has long been the
    policy of this office to refrain from answering questions pending in
    the courts.

         Chapter 152 contains the Texas Natural Resources Code’s Forest
    Pest Control provisions. You ask whether chapter 152 applies to
    national forests and congressionally designated wilderness areas
    located in Texas in a manner which requires federal officials to
    control forest pests, such as Southern Pine Beetles, upon the demand
    of the Texas Forest Service. You also ask whether the state may
    constitutionally require landowners, including both private landowners
    and the federal government, to cut their trees to prevent the spread
    of forest pests or to pay the costs of the Texas Forest Service for
    doing so. Background information provided with your request reveals
    that experts disagree about whether extensive tree-cutting actually
    eradicates pine beetles or is an appropriate response to past
    large-scale infestations. Thus, your real concetn may focus on the
    methods employed by the Forest Service.

         Your first question is whether the Texas Forest Service may
    unilaterally require federal officials to comply with chapter 152.
    Section 152.012 provides:

                 (a) The service shall make surveys and investi-
P
              gations to determine the existence of infestations
Honorable Oscar A. Mauzy - Page 2 (J&600)
                                                                         )

                                                                         7


          of forest pests and means practical for their
          control by landowners.

            (b) Duly delegated representatives of the
         service may enter private land and public land,
         including that held by the United States if
         permission is obtained, for the purpose of
         conducting surveys and investigations.

             (c) All the service's information shall be
          available to all interested landowners. (Emphasis
          added).

Nat. Res. Code ~0152.012. Section 152.012(b) indicates that the
service may only enter federal land to conduct surveys and investiga-
tions with the permission of the federal government. It follows that
state officials may not enter federal land to conduct forest pest
eradication programs without federal permission. Accordingly, this
opinion does not address your suggestion that the service cannot
require the federal government to comply with chapter 152 without
sunning afoul of the United States Constitution. See generally U.S.
Const. art. IV, 53, cl. 2; Kleppe v. New Mexico, 426 U.S. 529 (1976).

     Moreover, a letter from the United States Department of Agri-
culture's Forest Service, submitted in response to your opinion
request, indicates that federal and state officials are in fact
working in concert on this matter and that continuing cooperation is
deemed essential to the preservation of federal land located in Texas.
Section 2104 of Title 16 of the United States Code provides expressly
for the protection of National Forest System trees from insects and
disease and authorizes federal cooperation with state officials. 16
U.S.C. 02104(b) (1982). Similarly, section 152.026 of the Texas
Natural Resources Code authorizes the Texas Forest Service to enter
into cooperative agreements with the federal government "to accomplish
the control of forest pests."

     You express concern about the methods used to eradicate forest
pests. The appropriateness of the methods used by state and federal
officials in controlling forest pests depends upon factual determina-
tions which are beyond the scope of the article 4399, V.T.C.S.,
opinion process. It should be noted, however, that section 152.001 of
the Texas Natural Resources Code states that

          [i]t is the public policy of the State of Texas to
          control forest pests in or threatening forests in
          this state in order to protect forest resources,
          enhance the growth and maintenance of forests,
          promote stability of forest-using industries,
           rotect recreational wildlife uses, and conserve
          !ther values of the forest. (Emphasis added).




                             p. 2683
Honorable Oscar H. Mauzy - Page 3 ~(JM-600)




Additionally, the federal agencies involved must comply with all
                                   _
relevant federal statutes and regulations -- i.e., procedural and
environmental regulations. See Sierra Club v. Block, 614 F. Supp. 134
(E.D. Tex. 1985); see alsoTexas Committee on Natural Resources v.
Bergland. 573 F.2d 201 (5th Cir. 1978). cert. denied, 439 U.S. 966
(1978).

      You also inquire whether the state may constitutionally require
landowners, including both private landowners and the federal govern-
ment , to cut their trees themselves or to pay the costs of the Texas
Forest Service for performing this task. As indicated above with
regard to lauds owned by the federal government, the state may not
unilaterally "require" the federal government to comply with chapter
152 of the code without obtaining federal permission. For the same
reason. even if the federal government allows the Texas Forest Service
to institute control measures against forest pests in national forests
and wilderness areas in order to protect such lands, the state may not
"require" the federal government to reimburse the state. The federal
government may, however, agree to reimburse the state if such
reimbursement is part of a cooperative agreement to preserve and
protect the national forests and wilderness areas from destruction.
See, e.g., 16 U.S.C. $2104(b) (1982); cf. 16 U.S.C. §2104(f) (1982)
(limiting the use of appropriated federalfunds).

     With regard to the state requiring private landowners to cut
their trees OK to pay the costs of the Texas Forest Service for doing
SO. a fundamental constitutional question must be addressed. Under
the Fifth and Fourteenth Amendments of the United States Constitution,
private property may not be "taken" without "just compensation." See
Penn Central Transportation Co. v. City of New York, 438 U.S. 104
(1978). Article I, section 17, of the Texas Constitution prohibits a
state and its uolitical subdivisions from "taking or damaaina" urivate
property for public use without providing "adequate c~mp~ns~tion."
City of College Station v. Turtle Rock Corporation. 680 S.W.2d 802
(Tex. 1984). Trees growing in the ground are deemed property, a part
of the realty. City of Tyler v. Arp Nursery Co., 451~S.W.2d~809.~812
(Tex. Cl". App. - Tyler 1970. writ ref'd n.r.e.). A "taking" is an
exercise of the government's eminent domain powers.

     Under certain circumstances, however, property may be appro-
priated by government action without any compensation as an exercise
of the state's police power -- the power to protect the public health,
safety, and welfare.   See, e.g., Miller v. Schoene, 276 U.S. 272, 280
(1928); Nunley v. Texas Animal Health Commission, 471 S.W.2d 144 (Tex.
Cl". App. - San Antonio 1971, writ ref'd n.r.e.); City of Waco v.
Archenhold Automobile Supply Co., 386 S.W.2d 174 (Tex. Civ. App. -
Waco 1964), aff'd, 396 S.W.2d 111 (Tex. 1965). Traditional analysis
distinguishes police power from eminent domain power by focusing on
whether the government is preventing a public harm as opposed to
forcing a private party to give property for a public benefit.




                               p. 2684
Honorable Oscar H. Mauzy - Page 4   (~~-600)




Defining the shadowy boundary where the police power ends and the
exercise of eminent domain begins (and therefore where compensation
must be made) has caused a generation of conflicting cases. See
Cabaniss, Inverse Condemnation in Texas - Exploring the Serbonian Bog,
44 Tex. L. Rev. 1584 (1966).

     Section 152.002 of the Natural Resources Code declares that
"[florest pests are . . . a public nuisance." The legislature may
declare certain things to be nuisances and may remit to administrative
officers the authority to determine whether certain acts OK things
constitute public nuisances. See Stockwell v. State, 221 S.W. 932
(Tex. 1920); cf. Air Curtain Destructor Corp. v. City of Austin, 675
S.W.2d 615 (TX   App. - Tyler 1984, writ ref'd n.r.e.); Hart v. City
of Dallas, 565 S.W.Zd 373 (Tex. Civ. App. - Tyler 1978, no writ). The
declaration in section 152.002 that forest pests are a public nuisance
authorizes an exercise of police power. Nevertheless, this does not
prevent a finding that a "taking" has occurred.

     The Texas Supreme Court holds that property may not be taken
without compensation under certain circumstances, even in the exercise
of the police power.. City of College Station, 680 S.W.2d at 804; City
of Austin v. Teague, 570 S.W.2d 389 (Tex. 1978); Attorney General
Opinion JM-294 (1984). The Texas Supreme Court in City of Austin v.
Teague, rejected an arbitrary application of the "police power" -
 'eminent domain" distinction in favor of a balancing test of whether
the public need outweighs the private loss. 570 S.W.2d at 393.
Consequently, the Texas Forest Service may require private landowners
to cut their trees without constituting a taking for which compensa-
tion must be made only if the public need to protect forests by
cutting infected or infested trees outweighs the loss to the landowner
of the value of the trees. A determination of whether public need
outweighs private loss depends upon the facts in any given case.

     The means used by the Forest Service in eradicating OK con-
trolling forest pests OK in dealing with past infestations is also
relevant in balancing the damages suffered by the landowner with the
need to control forest pests. A method of control which causes great
private damage without actually effecting any legitimate public
purpose could be deemed arbitrary and capricious. See City of
Brookside Village v. Comeau, 633 S.W.2d 790 (Tex. 1982), cz. denied,
459 U.S. 1087 (1982).

     With regard to requiring a landowner to bear the cost of cutting
trees which are infested with forest pests, the constitutionality of
the requirement would be dependent upon and implicit in a finding that
no taking has occurred. The basic statutory framework for requiring
certain landowners to bear the cost of abating forest pests already
exists. See Nat. Res. Code 59152.022, 152.024. If the public need to
protect fzsts    outweighs the loss to the landowner of the value of
his trees, he may be required to destroy the trees. Accordingly. if



                               p. 2685
Eonorable Oscar 8. Mauzy - Page 5    (JM-600)




the state expends state funds to destroy the trees, the state may
recover this cost from the landowner. The Natural Resources Code,
however, currently sets a fixed amount which constitutes a legal claim
against a landowner for the cost of pest control undertaken by the
Forest Service. -See Nat. Res. Code 6152.023.

                              SUMMARY

             The national forests and federally designated
          wilderness areas located within Texas are covered
          by the pest control psovisions of chapter 152 of
          the Texas Natural Resources Code only to the
          extent that the authorized agency of the federal
          government expressly agrees to allow enforcement
          of Texas' forest pest control laws.

             The state may constitutionally require private
          landowners to cut their trees OK to pay the costs
          of the Texas Forest Service for doing so if the
          public need to control pests or deal with past
          infestations outweighs the loss to the landowner
          and if the means used by the service are not
          arbitrary and capricious. A determination of
          whether public need outweighs private loss depends
          upon the facts in each given case.




                                        J-/h>
                                         Very truly your ,,
                                               .


                                         JIM     MATTOX
                                         Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jennifer Riggs
Assistant Attorney General




                                   p. 2686
