.,ITORNY;Y C&NIcHAL 

### June9, 196-i'

Hon. J. R. Singleton Opinion No. N-87 Executive Director Texas Parks &Wildlife Dept. Re: What 1s the seaward Auatin, Texas boundary of Texas and whether Texas can unllaterally extend its gulfwardboundaries; and, If so, howfar can such boundaries be extended, Dear Mr. Singleton: andrelated questions.

Youhave recently requested the opinion of this Office conaernlng the extent of your authority to regulate fishing In the waters of the Gulf of Mexico off the aoast of Texas. You cited Chapter 

### 286,Acts’of the 47th Legislature, page 454 (enacted In 1941 andcodified as Article 5415a, Vernon’s Civil Statutes), which fixed the gulfward boundary of Texas at 27 marine leagues from the coast. This Article wasamendedin 1947.80 as to extend the boundary of Texas seawalrdto the outermost limits of the Continental Shelf (Acts 1947, 50th Leg., p. 

### 451,ch. 253).

Mention la also madeof Public Law

### 89-658,passed by the 

### 89thCongress of the United States In 

### 1966,codified as Sections 1091-1094, Title 

### 16,United States Code. This leglslatlon eetabllshee a fisheries eohe off the coast of the United States, the limit of such zone being 12nautical miles Into the sea from the coast.

YOUstate that you are presently exercising control and regulation oi fishing In aoaatal waters extending irom the shore to a line 3marine leagues Into the Gulf cf Mexlae andyou wonder, In view of the above cited statutes, whether you should attempt ta exercise jurisdiction over fishing out to the 12 nautical mile lineas set by the federal Fisherlea Zone Act or to the boundary as set by Article 5415a. Your specific questions are as follows:

(1) ;~;nZ;;;;sunllate~ally extend Its gulfward

*and, if so, howfar can such boundarles’be extended?



### -393-r

Hon. J. R. Singleton, Page 2 (MW87)

(2) Dopreaent applicable fishing re of Texas apply to the twelve 12 BY latlons mile fisheries zone created by PL g-658. If not, to whatportion of the twelve (12) mile zone dothey apply? (3) Dopresent applicable fishing regulatlcns apply to anarea contiguous to the Texas shore extending out twenty-seven (27) marine miles or to the edge of the contlnental shelf?
Toanswer these questions, it is necessary to consider the history of the ownership of the submerged lands off the aoaet ofTexas. In 1950, the SupremeCourt of the United States, In Unlted States v. Texas, 339U.S. 707, 340U.S. 900, held that themlted States possessed paramount rights ln all submerged lands off the coast OSTexas seaward of the low-water mark. In 1953 the Congreea of the United States passed the Submerged Lands Act, 67 Statutes, 29, aodlfled as Sections 1301-1315, Title 

### 43,United States Code. This enactment relinquished the title of the United States in the submerged lands off the shores of the coastal states to the states. The seaward extent was set at 

### 3geographic miles distant from the coast line, or such addltlonal distance as its seaward boundary existed from its coast at the time a state became amemberof the United States; with a limit of three miles in the Atlantic andPacific Oceans and three leagues in the Gulf of Mexico. Therecord in the Congress madeIt clear that the Texas boundary at ail times since 1836 existed at three marine leaguea in the Gulf of Mexico.

Thegulfward boundary- OSTexas subsequently was confirmed at 

### 3marine leagues from the coast. -United States v. Louisiana, al., et 

### 363U.S. 1 (1960).

It eheuld be observed that the SubmergedLands Act relinqulshcd to the states all right, title andlntereet to the lands beneath the coastal waters andto “natural resourcea” in the area in queet.len. See Seation 1311 of Title 43, U.S.C.; Section 1311 also declares that it ia the intent sf Congress to leave the management, admlnlstratlen, development and use of the “natural resources” to the states.

Theterm “natural resources” was defined in Section 1301 aa follows:

-394-Hon. J. R. Singleton, Page 3 (M-87)

“(e) Theterm ‘natural resources’ lneludes, without llmltlng the generality thereof, oil, gas andall other minerals, andfish, shrimp, oysters, clams,crabs, lobsters, sponges, kelp, andother marine ~anlmalandplant life but does not include water power[ or the use of water for the production of power.' Accordingly, It would seemclear that the State of Texas nowhas ownership of the natural resources including marine life within the area ceded by the Submerged Land@Act. Furthermore, at the time of the passage of such Act in 1953, Texas wasgiven the exclusive power to regulate the natural resources in such area.

Ae noted above, the case of United States v. Louisiana, 363U.S. 1 (1960) determine3 ‘th’t T %‘%%submerged land and’all attendant zeso%ie hd hip ?n ?:::,a bounded by a line 3marine leagues distant from Texas’ coast, Moreover , this case also decided the rights of tha United State6 In the ~eubmergedlands off the coast of Texas beyond such 3league line, andat page 84 of the opinion, the Court defined the respective rights of Texas andthe United States as fOllOW8:

“As to the State of Texas, a decree will be

entered (1) declaring that the State is entitled, as against the United Statea, to the lands, mlnerals, andother natural resources underlying the Gulf of Mexico ta a distance of three leagues from Texas’ aoaat, that is, from the line of ordinary low-water markand eutcr limit of inland waters; (2) declaring that the United States is entitled, as against Texas, to nointerest therein; (3) declaring that the Unlted States is entitled, as against Texas, to all 8uch lands, mlnerala, anti resources lying beyond that area, and extending to the,edge of the Continental Shelf; (4) enjoining the State from interfering with the rights of the United States therein; and (5) directing Texas appropriately to account to the United States for all sumsof moneyderived since June 5, 1950, from the area to which the United States 1~declared to be entitled.”

-395-Hon. J. R. Singleton, Page 4 (M-87)

This language will admit no other interpretation but that the United States, as against Texas, is entitled to all lands, mlnerala andresources lying gulfward beyond the 

### 3 marine league line, and extending seaward to the edge of the Contlnental Shelf. The statutes of Texas, which are cited above andwhich purport to set the boundary of Texas at a greater distance gulfward than the 

### 3marine leagues from the coast are Ineffective as aresult of this decision. Thegulfwardboundary of Texas is a line extending 

### 3marine leagues from the coast, andno action of the Legislature or any offlclal agency of Texas aan extend this boundary anyfurther into the Gulf of Mexico, without the approval of the United States.

Ouranalysis of United States v,, Louisiana, et al. is conslatent with the meaning read 1t thl d 1 1 b th courta of Texas. Employer8 MutualnCEsualtsyErn~a~~vJ:Sarkels, 

### 407S.W;2d 

### 839(Tex.Clv.App. 19bb, error ref., n.r.e.1.

Furthermore, the above mentioned federal Fisherlea Zone Act contains noprovision enlarglng a state’s ownership of submerged lands andthe attendant reseurcc8 andnoprovision enlarging a state’s 

### powerts regulate lands and resources wlthin the fisheries zone. Onthe contrary, the Act spec~flcally states that it shall not be “construed as extending the Jurlsdiction of the states to the natural re8ources beneath andin the waters within the flaherlea zone estabilahed.

. .”

Theabove dlaauaslon ehould answer most of the questions you have submitted tt this offlae. Texas cannot unilaterally 

### exbend its gulfward boundaries by legislation. The flehlng regulations promulgated by Texas apply only to the 

### 3 marine 

### leagueboundary, an@not tut to the 12nautical mile line act by Public Law 

### 8 as provided ln Artlclt 

### 5 2

### -658,or te the Continental Shelf line 15a. Thre ~ztlll remains t~hequestion OSwhather Texa8, while owningthe submerged lands andrtamarcea ln anarea bounded by aline 

### 3marlne 

### leaguesfrom the Coast, oan exElualvely regulate, aontrtl andadminister the rtseuraez feund within auch.boundarlas. The

### Submerged Lands Act.stated that it was the policy of

’ the.United Stat~ezCongrera to permit the COaStal states to control andregulate the development of the natural resources in the area ceded under the Act.

In Cersa v. Tawes,, 149F.Supp. 771 (D.C. Md. 1957)’ athree judge district ceurt held that the regulatlen OSCoastal



### -3961.

Hon. J. R. Singleton, Page 5 (M-87)

fisherlee in the territorial waters granted to the states by th& Submerged Lands Act was 

### withinthe police power 3f the individual states, absent any conflicting legislation by Csngress lmpssing regulatory procedures under the Commerce Clause of the United States Constltuti3n. The decision was affirmed by the Supreme Cmrt of the United States, without discussion, at 355U.S. 37 (1957).

There has been no federal legislation which purports to regulate the fishing industry within the 3league line, and the only Act generally in point being the Fisheries Zone legi&- latlon referred to and discussed above. Section 4 of this statute provides in part that nothing in the Act shall be interpreted as “dlmlnlshlng” the jurisdiction of the several states to administer “the natural resources beneath and in the fisheries zone”

. Therefore, this enactment seems to be confirming the policy of Congres s expressed in the Submerged LEnde Act that the states will be empowered to regulate and control resources within the boundaries confirmed, and in the case of Texat, three marine leagues gulfward. It is therefore concluded that Texas may presently exercise exclusive regulation of fishing from its shores to the three marine league line.

As to the State’s right to regulate flehlng outside the 3league gulfward boundary, there are cases which hold that in the absence of conflicting Federal legislation the States may so regulate ae to their citizens and for their protection and the protection of their adjacent natural resources. Sklrlotee v. Florida, 313U.S. 69 (1941) and cases cited therein. However, untilhe Legislature so provides, it is apparent that this la a hypothetical queetlon. The long-established policy of this office is not to attempt to pass upon hypothetical questions. Obviously, the best procedure here would be for mutual agreements between the State and the Federal Government in the area gulfward of State boundaries. If this is not possible, then the Legislature may want to consider any action which would not conflict with Federal leglslatlon, and In such event wewill then be glad to pass upon the legal questions which may arise.
SUMMARY The gulfward boundary of the State of Texas Is a line three marine leagues distant from the coast and in such waters Texas 15 empowered to control and regulate fishing. Texas cannot unilaterally extend its gulfward boundary by legislation. -397-Hon. J. R. Singleton, Page 6 (M-87)

j%$4 very truly,

Prepared by LonnyF. Zwiener Assistant Attorney General APPROVED:OPINIONCOMMITTEE Hawthorne Phillips, Chairman W.V. Geppert, Co-Chairman Arthur Sandlin Milton Richardson Kerns Taylor W.0. Schultz STAFFLEGAL

ASSISTANT A. J. Carubbi, Jr.

-398-