## THE ATITORNEY GENERAL OP %-EXAS

Hon. J. R. Singleton Executive Director Texas Parks &Wildlife Dept. Austin,. Texas --1 / Opinion wb. M-8

r -
Re: Authority of the Parks andWildlife Department to regulate the taking

Dear

flee ment or disturbance of marl, sand shells and other materials within the waters of the State of Mr. Singleton: Texas. Youhave recently requested the opinion of this ofregarding the authority of the Parks +Wildlife Departto restrict disturbances in the bay andestuarine areas

_- __ . . lying along the coast of Texas. Your request reaas, In ab iollowe: 

## part,

“We desire the opinion of your office regarding the authority of the Parks andWildlife Department to regulate the private development of State-owned water bottome.

. . “The destruction of bay nursery areas used by

fish and shellfish due to increased private channel dredging, dredge fill operations and spoil disposition are rendering useless these former productive sites in Texas estuarine areas. In addition, waterfowl feeding and resting grounds are being destroyed by these operatlone. "Artlclcs 4051, R.C.S.

;,4052 R.C.S. and 4053, a8 74, 36th Legislature, 74, 36th Legislature, amended (Ch. 248, th Legislature, R.S. 1963) authorize the Parks andWlldllfti Department to issue permlts.for the sale, the taking awayand dleturblng of ~a11marl, sand or gravel. ..c

“Article 976, Texas Penal Code, provides a penalty for persons taking or carrying away anymarl, sand, sRcll.s:.or~ mudatiall~.~??gl?aVel under the Department's management, or disturbingHon. J. R. Singleton, Page 2 (M-84)

any of the marl, sand, shells or mudshell 

### or gravel or oyster beds or fishing waters or operate in 

### or upon any

### of the shell places, other than la necessary or lncldent to navlgatlon, or dredging under Federal or State authority without a permit from the Parks and Wildlife Department.

“The Parks andWildlife Department has only exercised its authority under these statutes to 

### issue permits 

### for the sale of sand, shell andgravel.

“Article 5415-e, V.C.S., provides for procedures bywhich the School LandBoardmaylease State-owned aubmerged lands~to individuals. The Parks andWildlife Department has representation on the SubmergedLands Advisory Committee.

“In sununaryof anAttorney General’s Opinion issued July 

## 3,1957, No. WW-150the followin@ la quoted:

‘A permit from the Gameand Fish Commission to dredge shell 

### on lands heretofore patented to the Nueces County Navigation District 1s not a

### prerequisite to the removal of shell commercially from said lands eo long a8such removal 1s incidental to authorized navlgatlonal purposes.’ “We have interpreted this as applicable navigation districts in the State.‘

. Youthen state: to other

“In view of the above-referenced’statutes and the limitations wehave placed on our authority by administrative interpretations andby agreement of amajority of the Parks andWildlife Commissioners, it la deemedproper to request the Attorney Qeneral of ,the State of Texas for advice 

## 04these questions:

“(1) Does the Parks.andWildlife Department have authority to regulate or l@lt .dleturbances of fish producing areas ln natural bottoms of bay and Gulf areas whenthe sale of 1

- $79-Ron. J. R. Singleton, Page 

### 3 (M-a4)

Band, shell or gravel la not involved, nor where petroleum development by the ffeneral LandOffice la concerned?

“(2) Does the Parka andWildlife Department have authority to regulate or limit disturbancee,ln submerged land areas leased by the School LandBoard to, lndlvlduals? 

### “(3) Does the Parks andWlldllfe Department have authority to limit the disturbances of submerged State-owned land leased by the General LandOffice for 011 Development?

“(4) Whatcourse of action la open to the Parks andWildlife Department to control the 

### u&zand disturbance of State-owned submerged 

### landa?” ByAct8 36th Leg., 2ndCalled Session 1919, Chapter 

### 74, Page 215 (codified as Article 4051, V.C.S.), the Legls

### lature placed all sand of commercial value and all of the shells, mudshelle or gravel of whatsoever kind that maybe in-or upon any Island, 

### reef or bar, and Inor upon the bottome OSanylake, bay, shallow water, rlvers, creeks and bayous andfish hatcheries and oyster beds within the terrltopy therein defined, under the contrjl, managementandprotection of the GameandFish Commission. The territory 

### defined included all the islands, reef8, bars, lakes andbays within tidewater limits from the most interior point seaward coextenalve with the jurisdiction of this State.

ByActs 36th Leg., 2nd Called Session 1919, Chapter 

### 74, Page 215 (codified a8 Article 4052, V.C.S.), the Legls

### latwe invested the GameandFlsh Commission with all power 

### andauthority necessary to carry into effect the provisions of the chapter and likewise gave it full charge and discretion 

### over all matters pertaining to the sale, taklng,~ carrying away 

### or disturbing of sand or gravel of commercial value, and all 

### gravel, shells, mudshell andoyster beda.



### BYthe aforementioned Act, Section 

### 5 thereof (codified as Article 

### 4053, V.C.S.), anyone desiring to purchase gravel, shells, or mudshell included in this chapter, or operate in or upon any island, reef, bar, lake, river, creek or bayou must apply for a permit to do so from the GameandFish Cammission. It should first be noted that the protection of the



### -380-Hon. J. A..Singleton, Page 4 (M-84)

natural resources of State-owned submerged lands has been placed under the jurlsdlctlon of the Parks andWlldllfe Dspartment. Title 

## 67, Vernon’s Civil Statutes; 

### Moreover, the tidal areas of Texas, to whictijlour aplnlon request,10 directed, -are placed under the “management, control and 

### rotectlon” t 

### of your department by virtue OS Articles 4051 

### and 052, supra, with explicit leglslatlve injunction to protect the natural rcaourcea’thereln.

However, there are conflicting interests involved ln the tidewater areas since these lands are valuable to the State of Texas, not only because they contain fish, shell and other marine resources, but they are valuable also for navlgatlonal purposes, for 011 and gas production, andfor commerclal and industrial uses.

For example, Article 4051, Vernon’s Civil Statutes, provides not only for the protection of marine life but empowers your department to sell commercially valuable marl, sand, gravel, shells andmudshells located in the tidal areas of the state if such sale will not endanger the breeding grounds of fish and shellfish. See Attorney Qeneral’s Opinions WW-1487

## (1962)

and C-90 

## (1963). Moreover, these statutes place the protection of marine life in your hands regardless of whether the sales of commercially valuable materials are. involved andgive your department the right to control all disturbances in the tidal lands except where someuse 1s made of these tidal lands as maybe provided for by other statutes. Attorney General’s Opinion WW-151.

In,some areas, the value of the commercial and lndustrial use overrldea the protection of marlne life. As you note in your ~letter to usoa navigation district 1s authorized by the State to remove marl, shell, gravel and other materials and thereby disturb oyster beds andfish hatcheries wlthout the. pexmlsalon of your department, ii such removal and dleturbance 1s incidental to an authorized navlgatlovl purpose. Attorney Qeneral’a Oplnlon WW-150.

The School LandBoard, by virtue of the provisions of Article 5415-e, Vernon’s Civil Statutes, la authorized to lease the surface estate in State-owned islands and submerged lands for industrial purposea, including exploration and development of oil and gas under prior existing laws, subject to certain Umltatlons and conditions. This Article also provides for the School LandBoard to makecomprehensive studles.of submerged land management, and in a measure 1s supplemental to the power of the Parks andWildlife Department to conserve andprotect the natural resources of such lands. However8 *381 -Hon. J. R. Singleton, Page 

### 5 (M-84)

this Act, specifically provides that:

II‘ It is expressly provided, however, that ii is-not intended that this Act shall repeal or modify the provisions of Chapter 

### 3, Title 

### 67, Revised Clvll Statutes of Texas, as amended, a8 it relates to the powers andduties of the GameandFish Commission with respect to all matters pertaining to the sale, taking, carrying away, or disturbing of marl, sand or gravel of commercial value, and all gravel, shells, mudshell, andoyster beds andtheir protection from free use andunlawful dlsturblng or appropriation as provided in said Chapter 

### 3; nor 10 it intended that this Act should create or eatabllsh any additional or supplemental requlrementa or 

### procedures to those set forth in the said Chapter 

### 3, Title 

### 67, insofar a8 the matters therein involved are concerned.

. .” Wheretidal lands are set aside for navigational purposes 

### or are leased for 311 andgas production or other lndus-

.’ trial purposes, the use of the glandsby the navigation dla

### trSct or by the lessee must be consistent with the purpose ,: y 

### for which such areas are set aalde or leased. If the dls- L turbancea of the State-owned water bottoms are not incidental to andnecessary for the carrying out of navigation, or for the production of oil andgas, or for industrial purposes, then disturbances of oyster andfish producing areas would be within the authority of the Parka andWildlife Department to control See the reasonfng of Attorney General’s Opinion WW

### 150. It was stated ln Attorney General’s Opinion C-90, supra, that:

“However, insofar as sand, gravel, marl,

shell andmudahell might be removed and sold irom State ownedtidal or submerged lands under lease for oil andgas without disturbing 

### or interfering with the development of the:leased lands for 011 andgas, the GameandFish Commlsslon la authorized to issue permits for the sale thereof.” In view of the foregoing andthe hplding andreasoning in the cited Attorney General’s Opinions, which wereaffirm, it la our opinion that your first three questions should be answered in the affirmative, subject to quallflcatlons. We will not answer these questions categorically, but will make one answer which will fully set out your authority in protecting and conserving the natural resources ln the bottom of the -38a-

.:Hon. J. R..Singleton, Page 6 (M-84)

submerged lslands andwaters.

The Parka andWlldl1f.e Department has the authority and duty to manage, control andprotect all the marl and sand of commercial value, and.a11the shells, mud&hell, gravel, fish hritcherlea and oyster beds within the territory defined in Article 4051, Vernon’s Civil Statutes, as well as the additional powers and duties provided in Chapter 3of Title 67, Vernon’s Civil Statutes, except the marl, sand, shells, mudshell, gravel, fish hatcheries andoyster beds that are dlsturbed for an authorized navigational purpose, and such dlsturbance la incidental to and reasonsbly necessary in carrying

. out such navigation, or being dleturbed by a lessee of the School LandBoard ln carrying out the purpose of the lease (whether for 011 or gas production or other commercial or lnduatrlal use) andwhich disturbance of the marl, etc. 1s lncldental to such purposes andreasonably necessary in carrying out such purposes.

In answer to your fourth question (what courses of action are open to you to control the use anddisturbance of submerged lands whenyou have authority to protect the marine life in such areas), you have the duty andprerogative of investigating disturbances andtheir affect on fish and shell fish breeding grounds. If the party responsible will not cease such disturbance, upon your request, you maythen report the facts to the Attorney General whowill decide if court action la warranted to limit the disturbance involved. In conjunction with this action, or as an alternative to it, you maywish to bring the actlvltlea caualng the disturbance to the attention 

### of the proper county or district attorney if a criminal offense seems to be involved. SUMMARY

/

, . . The Parks andWildlife Department has the authority ‘.andduty to manage, control andproteot all the marl and sand of commercial value, and all the shells, mudshell, gravel, fish hatcheries andoyster beds within the territory defined **in** Article 4051, Vernon's Civil Statutes, as well as additional powersland duties provided in Chapter 3, of Title 67, Vernon’s Civil Statutes, except the marl, sand, shells, mud&hell, gravel, fish hatcheries andoyster beds that are disturbed for an authorized navigational purpose, and such disturbance la incidental to andreasonably necessary in carrying out such nqylgatlon,

-*so ,; 2.-. Hon. J. R. Singleton, Page 7 

### (M-84)

or being disturbed 

### by alessee of the School LandBoard ln~carrylng out the purpose OSthe lease (whether 

### for 011 or gas production oc other commercial or.lndustrlal use) andwhich disturbance of the marl, etc. la incidental to such purposes and reasonably necessary In carrying out such purposes.

Prepared by LennyF. Zwlener Asalstant Attorney General
APPROVED: OPINIONCOMMITTEE Hawthorne Phllllp~r, Chalman W. V. Oeppert, Co+d.rman Houghton Brownlee Kerns Taylor Malcolm Quick Nlel Williams STAFFLEOAL

ASSISTANT A:J. Carubbl, Jr.

i

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