,

December 29, 1986

P HonorableOscarH. Mauzy

Chairman Committeeon Jurisprudence Texas State Senate P. 0. Box 12068 Austin, Texas 78711 OpinionNo. JM-600

Ret Whether national forests and federalwilderness areas are within the scope of chapter 152 of theNatural ResourcesCode

Dear SenatorMauay:

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 requestwere 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 litigationmay 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 relatedirectly to this litigation. It has longbeen the policy of this office to refrain from answering questionspending 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 constitutionallyrequire landowners,includingboth 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 informationprovided 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 employedby the Forest Service.

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

(a)The serviceshallmake surveysand investigations todetermine the existenceof infestationsHonorable OscarA. Mauzy - Page 2 (J&600)

of forest pests and means practical for their controlby 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 surveysand 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 servicemay only enter federal land to conduct surveys and investigationswith thepermission 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 152without sunning afoul of the United States Constitution. See generallyU.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 thepreservationof federal land located inTexas. 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 cooperationwith 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 cooperativeagreementswith the federalgovernment "to accomplish the controlof forestpests."

You express concern about the methods used to eradicate forest pests. The appropriatenessof the methods used by state and federal officials in controlling forest pests depends upon factualdeterminations which are beyond the scope of the article 4399, V.T.C.S., opinionprocess. It shouldbe noted,however, that section 152.001of the TexasNatural ResourcesCode states that

[i]t is thepublicpolicy 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. (Emphasisadded). )

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Additionally, the federal relevant federal statutes agencies involved must comply with all

_ and regulations -- i.e., procedural and environmentalregulations. See SierraClubv. 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 inquirewhether the state may constitutionallyrequire landowners, includingboth private landownersand the federal government , to cut their trees themselvesor 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 federalgovernmentallows the Texas Forest Service to institutecontrolmeasures against forestpests innational forests andwildernessareas in order toprotect such lands, the statemay 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) (limitingtheuse of appropriatedfederalfunds).

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 FourteenthAmendments of theUnited StatesConstitution, private propertymay 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 Constitutionprohibits a state and its uolitical subdivisionsfrom "takingor 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 exerciseof the government'seminentdomainpowers.

Under certain circumstances, however, property may be appropriated by government action without any compensation as an exercise of the state'spolicepower -- thepower toprotect thepublichealth, safety,andwelfare. See, e.g.,Miller v. Schoene, 276U.S. 272, 280 (1928);Nunley v. TexasAnimalHealth 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 distinguishespolice 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.

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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, InverseCondemnation inTexas - Exploring the SerbonianBog, 44 Tex. L. Rev. 1584 (1966).

Section 152.002 of the Natural Resources Code declares that "[florest pests are
. . . a public nuisance." The legislaturemay declare certain things tobe nuisancesandmay 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,nowrit). The declaration in section 152.002that forestpests 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 compensationunder certain circumstances,even in the exercise of thepolicepower.
. 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" - 'eminentdomain" 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 Servicemay 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 infectedor infested trees outweighs the loss to the landowner of the value of the trees. A determination of whether public need outweighsprivate loss dependsupon 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 landownerwith the need to control forestpests. A method of controlwhich causes great private damage without actually effecting any legitimate public purpose could be deemed arbitrary and capricious. See City of BrooksideVillagev. Comeau, 633 S.W.2d 790 (Tex. 1982),cz. denied, 459U.S. 1087 (1982).

With regard to requiring a landowner to bear the cost of cutting trees which are infestedwith forest pests, the constitutionalityof the requirementwould be dependentupon 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. SeeNat. Res. Code 59152.022, 152.024. If thepublicneed 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

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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 amountwhich constitutesa legal claim against a landowner for the cost of pest control undertaken by the Forest Service. SeeNat. Res. Code 6152.023.

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SUMMARY

The national forests and federally designated wilderness areas locatedwithin 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' forestpest control laws.

The statemay constitutionallyrequire 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 outweighsprivate loss depends upon the facts in each given case.
Very trulyyour ,, 

# J-/h>

.

JIM MATTOX AttorneyGeneral of Texas

JACKHIGHTOWER FirstAssistantAttorneyGeneral

MARY KELLER ExecutiveAssistantAttorneyGeneral

RICK GILPIN Chairman,OpinionCommittee
Preparedby JenniferRiggs AssistantAttorneyGeneral

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