, 

December 29, 1986 

P 

Honorable Oscar H. Mauzy 

Chairman 

Committee on Jurisprudence 

Texas State Senate 

P. 0. Box 12068 

Austin, Texas 78711 

Opinion No. JM-600 

Ret Whether national forests 

and federal wilderness areas are 

within the scope of chapter 152 

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 investigations to determine the existence of infestations 
Honorable Oscar A. Mauzy - Page 2 (J&600) 

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 investigations 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 Agriculture'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 determinations 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). 

) 

7 

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

Additionally, the federal 

relevant federal statutes 

agencies involved must comply with all 

_ 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 government , 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 appropriated 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. Teagu e, 570 S.W.2d 389 (Tex. 1978); Attorney General 

Opinion JM-294 (198 

Teague, 

4). The Texas Supreme Court in City of Austin v. 

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 compensation 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 controlling 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. 

Very truly your ,, J-/h> . 

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