Untitled Texas Attorney General Opinion ( 1990 )

Mr. Charles D. Travis Opinion No. JR-1190
Executive Director
Texas Parks and Wildlife Re: Exemption of lessees of
Department the General band Office from
4200 Smith School Road the permitting requirements
Austin, Texas 78744 for removal of sand, shell,
gravel, or marl within state
tidewater limits (RQ-1910)
Dear Mr. Travis:
Parks and Wildlife Code sections 86.001 and 86.002(a)
make provisions with respect to the authority of the Parks
and Wildlife Commission to manage and control marl, sand,
gravel, shell, and mudshell. Section 86.001 provides:
The commission shall manage, control, and
protect marl and sand of commercial value
and all gravel, shell, and mudshell located
within the tidewater limits of the state,
and on islands within those limits, and
within the freshwater areas of the state not
embraced by a survey of private land, and on
islands within those areas.
Section 86.002(a) provides:
No person may disturb or take marl, sand,
gravel, shell, or mudshell under the
management and protection of the commission
or operate in or disturb any oyster bed or
fishing water for any purpose other than that
necessarv or incidental to naviaation or
dredaina under state or federal authority
without first having acquired from the com-
mission a permit authorizing the activity.
(Emphasis added.)
See also Parks & Wild. Cdde § 11.001(l) (defining ‘commis-
sion' as used in sections 86.001 and 86,.002 as the Parks and
Wildlife Commission).
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Mr. Charles D. Travis - Page 2 (JM-1190)
You ask whether a certain holder of an easement from
the School Land Board must obtain from the commission the
permit required by section 86ti021;; ie,z;z;t to conduct
dredging operations pursuant . A brief
submitted by the General Land Office in connection with your
request describes the situation that prompted your request
as follows:
On May 9, 1989, the School Land Board pur-
suant to Chapter 33 of the Texas Natural
Resources Code granted to Done Star Agua-
culture, Inc. a coastal easement for the
installation on submerged permanent school
fund land in Matagorda Bay of a buried water
intake pipe to supply seawater to an uplt;:
aguaculture facility. Lone Star owns
leasehold estate in the adjoining littoral
property, which is permanent school fund land
leased to Done Star under Chapter 51 of the
Texas Natural Resources Code. As an incident
of installation of the pipe as authorized in
the easement, it was necessary for Done Star
to dredge the bay bottom. Lone Star is not
removing any sand, shell, gravel or marl for
sale or for any other purpose and is re-
placing the sand, shell, gravel and marl over
the pipeline once constructed.
. . . .
The School Land Board and the General Land
Office contend . . . that since the dredging
was conducted pursuant to state authority (a
School Land Board coastal easement granted
pursuant to Chapter 33 of the Natural
Resources Code), the easement holder is
exempt, pursuant to Section 86.002(a) of the
Parks and Wildlife Code, from having to
obtain a Chapter 86 sand, gravel, and marl
permit.
We discern the focus of your inquiry to be whether the
disturbance of marl, sand, gravel, shell, and mudshell
necessary or incidental to dredging operations under the
easement in question would be %ecessary or incidental to
navigation or dredging under state or federal authority"
within the meaning of section 86.002(a) and thus exempt from
the sectionfs requirement of a permit from the Parks and
Wildlife Commission.
The School Land Board is an executive agency of the
state. Nat. Res. Code 5 33.011. It is composed of the
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Mr. Charles D. Travis - Page 3 (JM-1190)
commissioner of the General Land Office and appointees of
the governor and the attorney general, and is assisted in
the performance of its duties by the staff of the General
Land Office. I& 55 32.012, 33.012, 33.013, 33.051.
Section 33.111(a) of the Natural Resources Code provides:
The board may grant easement rights to the
owner of adjacent littoral property authoriz-
ing the placement or location of a structure
on coastal public land for purposes connected
with the ownership of littoral property.
The brief submitted by the General Land Office indicates
that the easement holder in question is an "owner of
adjacent littoral property" within the meaning of section
33.111 by virtue of a leasehold interest acquired from the
General Land Office under chapter 51 of the Natural
Resources Code.
It would also appear that the granting of the easement
from the School Land Board for "dredging on submerged state
land for the installation of a water intake pipe to supply
water to an aguaculture facility," as recited in the copy of
the easement document you attached to your request, is
within the School Land Board's authority under section
33.111 for granting easements for the qqlocation. of a
structure on coastal public land for purposes connected with
the ownership of littoral property." (Emphasis added.)
"Structure" as used in chapter 33 is defined in section
33.004(10) of the Natural Resources Code to mean "any
structure, work, or improvement constructed on, affixed to,
or worked on coastal public land, including . . . excava-
tions.n
We conclude in response to the question you present
that the holder of such easement is not required under Parks
and Wildlife Code section 86.002(a) to obtain a permit from
the Parks and Wildlife Commission for its disturbances to,
or taking of, marl, sand, gravel, shell, or mudshell neces-
sary or incidental to its dredging operations for installa-
tion of the water intake pipe pursuant to its easement for
said operations granted by the School Land Board.
The Texas Supreme Court in Amdel Piveline v. State of
a, 541 S.W.Zd 821 (Tex. 1976) considered the provisions
of section 86.002(a) in connection with whether a holder of
a permit from the United States Army Corps of Engineers for
dredging for navigational purposes in the Neches River
Channel, a federal navigation project, was required to
obtain a permit from the Parks and Wildlife Commission. The
court noted that the provisions of section 86.002(a) had not
changed substantially since their original enactment in
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Mr. Charles D. Travis - Page 4 (JM-1190)
1911. 541 S.W.Zd at 824, 825; see Acts 1911, 32d Deg., ch.
68.1
The court in &k&8& held that the dredging operations by
the company, performed pursuant to its permit from the Army
Corps of Engineers, were ones %ecessary or incidental to
navigation under . . . federal authority" within the meaning
of section 86.002(a) and thus exempt from the section's
permit requirement. We think that a court would similarly
find that disturbances of marl, sand, gravel, shell, and
mudshell by the easement holder in question here are exempt
from said permit requirement if in fact the disturbances are
necessary or incidental to its dredging operations pursuant
to its easement from the School Land Board.
The &mdd court recognized, and the parties appear to
have agreed, that the company's operations were "under
federal authority" within the meaning of section 86.002(a).
m &mdel, at 826. In the present case, we think the
easement holder's operations, pursuant to its easement from
the School Land Board, would be found by a court to be
"under state authority" within the meaning of that section.
The Corps of Engineers permittee in &ndeL held a permit
for dredging for navigational purposes. We do not think the
fact that the School Land Board easement holder's easement
is for dredging fore non-navigational purposes takes it out
of the section 86.002(a) exception. The exception is for
"navigation pi dredging under federal or state authority."
Webster's defines "dredge" to mean "dig, gather, or pull
out" and "to deepen (as a waterway with a dredging
1. The Amdel court traced the section 86.002(a) permit
requirement exception for navigation or dredging under
federal or state authority to a penal provision of the 1911
act. The court stated, however, that it did not construe
the provision "to have the isolated effect of telling us
whom [sic] shall suffer penal sanctions." 541 S.W.2d at
826.
The caption of the 1911 Act refers to 'penalties
for the violation of this Act' -- indicating that
there is no violation of any part of the Act where
one, who removes marl and sand, does so in the
course of operations that are necessary or inci-
dent to navigation or dredging under state or
federal authority.
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Mr. Charles D. Travis - Page 5 (JM-1190)
machine)." Webster's Ninth New Colleaiate Dictionary 382
(1985). The ordinary meaning of dredging does not appear to
be limited to dredging for navigational purposes. We do not
think the legislature would have used the disjunctive lVor*'
in the phrase "navigation or dredging" had it intended the
exception to apply only to operations for navigational
purposes.
Our conclusion here is supported by Attorney General
Opinion M-84 (1967), cited with approval in &@& at 826.
In responding to the question whether the Parks and Wildlife
Department had "authority to regulate or limit disturbances
in submerged land areas leased by the School Land Board to
individuals," the opinion stated that the Parks and Wildlife
Department had authority to manage, control, and protect all
marl, sand, gravel, shell, and mudshell within the areas
defined by V.T.C.S. article 4051 (now section 86.001 of the
Parks and Wildlife Code), with the exception of
the marl, sand, [etc.], . . . that are dis-
turbed for an authorized navigational pur-
pose . , . or being disturbed by a lessee of
the School Land Board in carrying out the
purpose of the lease (whether for oil or
production or other commercial or industrqz?
use) and which disturbance of the marl, etc.
is incidental to such purposes and reasonably
necessary in carrying out such purposes.2
Attorney General Opinion M-84, at 6. We think the fact that
the operations here are performed pursuant to an easement
from the School Land Board rather than a lease, as in
Attorney General Opinion M-84, does not make the operations
any the less "under state authority" within the meaning of
section 86.002(a). See also Attorney General Opinions c-90
(1963) (submerged land leased for oil and gas development);
WW-150 (1957) (disturbances on submerged land patented to a
navigation district).
2. This conclusion of Attorney General Opinion M-84
was based on a reading of the provisions then found in
article 976 of the Penal Code. Those provisions were
incorporated without substantive change in the Parks and
Wildlife Code in 1975, as section 86.002. Acts 1975, 64th
Leg., ch. 545, 5 1, at 1405. In 1985, specification as to
the penalties for violating the provisions of section 86.002
were taken out of section 86.002 and-placed in section
86.020. Acts 1985, 69th Deg., ch. 267, art. 3, § 107, at
1294.
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Mr. Charles D. Travis - Page 6 (JM-1190)
You point in your brief to the provisions of section
33.005(a) of the Natural Resources Code, which provides:
This subchapter does not repeal the
following provisions of the Parks and Wild-
life Code: Chapters 83 and 86, Subchapter A
of Chapter 46, Subchapter A of Chapter 76,
Subchapter D of Chapter 76, Subchapter B of
Chapter 81, Subchapter G of Chapter 82,
Subchapter C of Chapter 216, or Sections
66.101, 66.107, 66.112 through 66.118,
66.205, 76.031 through 76.036, 78.001 through
78.003, 81.002, 136.047, 184.024, 201.015, or
335.025.
Apart from the fact that the provisions of section
33.111 of the Natural Resources Code authorizing the School
Land Board to grant easement rights in coastal lands appear
in subchapter D of chapter 33 while section 33.005(a) refers
to subchapter A as effecting no repeal of, inter aliq
chapter 86 of the Parks and Wildlife Code, we also note tha;
our construction here of section 33.111 of the Natural
Resources Code, with those of section 86.002(a) of the Parks
and Wildlife Code, works no llrepeal" of the latter provi-
sions. Our construction rather gives effect to the
provision of section 86.002(a) that "navigation or dredging
under federal or state authority" is excepted from that
section's permit requirement.
You also argue in your brief that finding the easement
holder's operations here to fall within the section
86.002(a) exception would "allow the exception to swallow
the rule." You say that virtually all of the activities
subject to regulation under chapter 86 currently require a
permit from the United States Army Corps of Engineers under
section 404 of the Clean Water Act, 33 U.S.C. § 1344. We
caution that we do not address here whether holders of
section 404 permits or other authorization permits would
fall within the section 86.002(a) exception for **navigation
or dredging under federal or state authority," but confine
our opinion here to the facts presented. We note, however,
that prior to the adoption of the predecessor provisions of
section 86.002 in 1911, the public was free generally to
disturb or remove bottom materials from coastal public land
without supervision. &8 Goar v. Citv of Rosenberg 115
S.W. 653 (Tex. Civ. App. 1909, no writ): Attorney G&era1
Opinion WW-151 (1957). It is possible that since 1911
federal and state regulation over coastal lands has grown to
the point where anyone removing or disturbing such bottom
materials must have obtained a federal-or state authoriza-
tion, therefore potentially bringing them within the section
86.002(a) exception. However, whether the exception to the
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Mr. Charles D. Travis - Page 7 (JM-1190)
section 86.002(a) permit requirement for %avigation
dredging under federal or state authority" now needs to
redrawn in light of such developments is a matter for the
Ef;
legislature.
SUMMARY
The holder of an easement from the School
Land Board for dredging for installation of a
water intake pipe on submerged state land is
not required, under Parks and Wildlife Code
section 86.002(a), to obtain a permit from
the Parks and Wildlife Commission' for
disturbances of marl, sand, gravel, shell,
or mudshell necessary or incidental to its
dredging operations pursuant to such ease-
ment. I .
L-lVery truly y
JIM
k,
MATTOX
Attorney General of Texas
MARYEELLER
First Assistant Attorney General
MU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAELEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by William Walker
Assistant Attorney General
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