Untitled Texas Attorney General Opinion ( 1947 )

THSATTORNEYGENERZAL
.; OF TEXAS
\ Ootobsr 13, 1947
1
Hone ~BaSOcinGiles, Chairman, oplaion No,, v- 405
School Lend Board
Austin, Texas Re: Constitutio&ility oi
Art. 921r, V;P.C., and
related qusdtions aon-
cqdng Oily explora*
tion work $n the mf
of ,Mexioo*
..
Dear Sir!
“-. ,‘The Board hab requested our opinion on aavswl
quretiohs Loonoejming ‘geophysioal expl.orations within the
~SCate’s bt-+nd+‘ise’ iii the ‘~G4.f of Mexico, as ~followsr
“l* Is Artiole 92&, V, Pm c, pr@ibit-
~lng ‘the 02 dynatiits and explosives
use -in tha
waters 0i the St&&a, a’pplicable tQ tha,~Qulf ’ .‘I ’
of Idexioo, and 3.f~so, la th6 lrtatuta oonstl-.. ~.. :
~Dutlonal? ~ .
“2, Doss the Land Commissioner ol! ~tbe ’
school Lana .Board 4~8 ‘authority to make ~. “~; 7
,rulea, -pertnit.ting anfl regulating geophysisal, z_
exploration work ,on State lands wl~thin t-h& ‘2,’ in
oulf ~of-~yerlrol
., *&, :
"34 IS the State ‘&nti,tled t0 OOmp8n- 22.
aation for the rlvllega of geophyaloal ex-
ploration of GuPt lands c~onduoted by those
who do not ‘halve leases thereon?W
Your ftrst. question obviously relates ‘to Wood, supra;
It has tclen contended in briefs filed with this
M'Pice that the present exploration work is in connection
with oanstruotfonobsing neabasay in order for 011 opera-
tors to know how ond where to build derricks, sink piper
and drill for oil a2d other mlneraliu HcwsverI as we
understand the Saats. the use& of dynhmite in exploFatfons
about whPah yotu inquire ar6 on landa not now under mineral
lease freon the ditate- The primary purpose of such woFk is
to Qettrrlline what lands private conc6rns will seek to lease
or bid upon wh6n sales are laad6. ThereSoore 9 aeismio ex-
plorations by private concerns on ffulf lands not now held
by them under lease cannot be rsaaonablg classified as
"neceaaary in constmoticn work'" 60 as to c80!neviihln the
exception contained In the etatute Wltkk respect to such
unleased lands. It is unlawful tc u&e dynsmlie ln the
waters covering sam9
ROIL BSSCO~ Giles, Page 7, VL405c
Obviously a different rule applies to lands
which have been leased or which may be leased hereafter
from the State. When the lessee in good faith decides
he must determine how and where to construct a derrick,
drilling rig, etc., upon such lands and shows that use
of dynamite is necessary in connection with such work,
the County Judge of the proper County may permit such
use under the previso in Article 92L, V. ,P, C. It is
commonly known that detail work must be accomplished
by exploratory methods which sometimes require use of
explosives before a lessee.can determine how and where
to conduct actual construction and development opera-
tions on the lease he has purchased. Any of such opera-
tions reasonably necessary ia canneotion with good faith
construction work could be p0rdttea by the County Judge
of the County in which the submerged land is located.
By the use of the terms "in any of the waters
of the State" we believe the Legislature fully intended
that the placing of dynamite or mother explosives in the
waters of-the Gulf should be as unlavlful as in inland
waters of the State. In the prior Act the Legislature
specifically said:
1,
0 * in any of the salt or fresh
waters,'lakes or streams in the State s s e1(
In amending the Act, the l+&th Legislature
rather than enumerate the various kinds of waters, sim-
ply covered all waters by the term "in any waters of
this State". The Legislature has in many other Acts
recognized its property rights in the submerged lands
of the Gulf of Mexico, With specific reference to fish
and other aquatic animal life, the Legislature passed
Article 4026, V. C, s,, which among other things, pro-
vided:
*All of the publia rivers, bayous,
lagoons, creeks, lakes, bays and inlets
in this State, and all that part of the
Gulf of Mexico within the jurisdiction
of this State, together with their beds
and bottoms, and all of the products
thereof, shall continue and remain the
property of the State of Texas, except
in so far as the State shall permit the
use of said waters and bottoms, or per-
nit the taking of the products of such
bottoms or waters, and in so far as this
.
Hon. B8soom Giles, Page 8, V- .405*
use shell relate to or affeot the taking
and conservation of fish, oysters, shrimp,
crabs, clams s turtle, terrapin, musselsp
lobsters, and all other kinds and forms of
marine life, e 0 -If
:s
%A view of this Act, it is manifest that by the use of
the terms "in any of the waters of this State" the Leg-
ielsture intended that the waters of the Gulf or ~exioo
ever which the State has jurisdiction be included there-
in. Those waters and the lands thereunder are just as
moh a part of the State of Texas as the Capitol grounds,
and bUV0 b&an since 1836 when the Cowress of the Repub-
110 ffrst bet the boundaries of Texas three merinr leagues
irem ahore in the Gulf of Merioa. The salt water rrrarinr
Itie rit?l&a those water8 era just brr much the property of
fke ': aoe es fresh watrr bass or perch. The Legislature
inte 3 'ed in Article 92.4 to proteot the salt water fish
just BP mUoh as the fresh water fish.
dur second question e concerning the euthor-
iby sf the Lana Commissioner or School Land Board to
Per&t aad regulate exploration work on the lends In
que@tien, should be considered first with respect to
laa$ect leads. It is iclear that an oil and gas lease
&ld to the. highest bidder by the School Land Board,
u.ndnr:the paovisfons or Articls 5421~~ as amended,
cer&euith,it the ri&ht to make geophysical explora-
b&oae 88 well a8 other explcmtions end development for
oil and gas onthe leased property. No rurther permit
18 nece$sery ror such operations so long as they do not
eonfliat with other laws, suoh aa Article 92L, Vc P, C,
It is also clear that the Land Commissioner,
with respect to leased landsI may make rules and regu-
lotions asneerning the exploration and other operations
ewQaet,ea on submerged lands, so long as they do not oon-
fliot with Legislative Aote, Arti.cle 5366, V, C- SC,
carried forward by reference in Article 51,21c-5, V:C,S.,
provides:
‘“The development of wells and the de-
velopment and operation upon the areas in-
cluded herein shall be done so far as pract-
icable in such manner as to prevent Such
pollution of the water as will destroy fish,
oysters and other sea food, The Game, Fish
and Oyster Commissioner shall enforce such
rules aa the Commissioner of the General
Land office may prescribe for that purposei"
Hon. Bsscom Gilea, Page 9, V-40g0
Therefore, as to leased land, the Commissioner
of the Goneral Land Office may make rules and regulations
which restrict seismic operations so as to eliminste many
of the practices injurious to the marine life of the Gulf.
Any rules aa to use of:dynamite and explosives must be
subject to Article 924., V. P. C., which means that the
lessee may use the same on the leased property only when
necessary in connection with construction work, and after
obtaining a permit from the-County Judge as provided there-
In order to properly protect fish and marine life in
iF;rations under such a permit the County Judge should
grant 8-e under the condition'that the lessee will abide
by the rules and regulations made by the Land Commissioner
regarding use or explosives on State leases.
As to unleased Gulf lands, it is our opinion
that the Land Commissioner and the School Land Board have
no authority to grant a permit or make rules which would
permitcnd regulate geophysical explorations thereon.
When a private concern enters upon public school lands,
whether upland or submerged, and makes geophysical sur-
veys, which revealto some extent the possibilities of
the land producing oil, a valuable right has been enjoy-
ed and valuable information has b.een gained, Aronow v.
Bishop, lo?M&t. 317, 86 P. (2) ~644;-Ohio Oil Co. v.
Sharp, 135 F. 12.) 303*
The scientific information obtained by geo-
physical methods is itsalr a valuable property right,
. and private landowners usually receive compensation for
the valuable privilege given a private concern to ob-
tain.such inf’ormation. Layne La, Co, v, Superio.: Oil
co., 209 IA, 1014, 26 So. (2) 206
Such geophysical rights are an incident of
the miners1 atvtata, and this, in Gulf lands, has bean
set apart to the Public School Fund. Their sale or dis-
position is, therefore, within the exclusive province
of the Legislature, and aan ‘never be given away. Arm-
strong v. Walker, 73 S.,H. (2) 520,
Any lease or sale of rights in those State
l&as which are held in trust for the whole people, as
is the bed of the sea! must be expressly authorized by
the Legislature, Lormo v. Crawrord Packing Co., 142
Tax. 51, 175 S. W. (2) 410. Grayburg Oil Co, v. Giles,
143 Tex. 490, 186 S, i/c (21 680; Dolan v, i'lalker, 121
Tex. 361, 49 S. W, (2) 695; Landry v, Robison, 110 Tex.
295, 219 S. w. 817; DeMeritt v, Robison, 102 Tex= 358,
116 8. w. 7960
Han, Bascom Giles, Page 10, V-405,
The Legislature has authorized the &rant of such
valuable rights with respeat to oil and gas only as an in-
aident to oil ana gas exploration ana development under
leases, for which the purchaser must pay the highest bid,
There is no other authority under which the School Land
Board or Commissioner may permit the gathering of thia
valuable iarormation, This has been the consistent hold-
ing of this office under this and past administrations~
Opinion No. O-1172, September 15- 1939. made the same de-
termination with respeat to Texas Prison lands, and a sub-
Sequent LsgisUtture passed s statute acthorizing such ex-
ploration permits On Prison lands for a valuable consid-
eration. Article 6203aa, V: C, S-
For the same reasons9 you would not have the au-
thority to WI&~ rules and regulations which would permit
such exploration on unleased Gulf lands,
We realize that It would be of great advantage
to the School Pund in much higher bonus payments for leases
if permits could be made (vrith 6d6qUEit6 compensation) for
the continuation of geophysical exploration of Gulf lands,
We also realize that enforcement of our laws on this sub-
&et will hereafter restrict Gulf exploration work to
~,smQs now leased or which will be leased at the next sale
on November I. However, under our system of Government,
we must operate in accordance wlth the law until the Leg-
i,,eloture changesthe law, All of these matters are with-
in the proviaae or the Legislaturec The School Lana Board
toresew the need for a new law on this subject betora the
50th Legislature convened and recommended the passage or
a Bill which would allow exploration permits after pay-
smnt or due compensation therefore, The Legislature did
at see fit to Provide such Ed Aat, and the proposal
9&ouse Bill 50) died in oomaittee.
Our answer to your second question partially
answers your thire inquiry, whether private concerns owe
the State compensation for information already gained
without a permit or lease on Gulf lands+ It is our opin-
ion thet the Stats is justly due compensation in the form
of damages for the reasonable value of the privilege ex-
ercised by those companies which have alreaay explored
the land8 without leases thereon, It is air view that
the &ate, far the Public School Fund. has the aame cause
of action in this regard as a private owner VJhOS6land
has been explored geophyaicollg prithout permission- In
this connection see Layne La: Co v Superior Oil Co ;
- .
. .,
209 La. 1014, 26 So, (2) 20; Angelloz vr Humble 011 Oo.,
196 x.a, 604, 199 So. 656; and Shell v. Scullg (C,C.A. ,La.) ,
71 fed. (2) 772. With your approval, this orrioe will in-
atituta proceedings r0r such recovery.
SUbWRY
1. Articls 924, V. P. C., prohibiting
the usa 0r dynamitr in the watera 0r Texas,
except ror conatruotion purposes, applies to
the waters or the mar 0r Mexioo within the
State’s boundaries, and is oonatltutional.
The uaa or explorlvss in coahrption with
geophysical sxplo~t~iona in such watrr8 0r
ths Gull ie unlawful, except on lands lsasad
rrom the State and then only in aacordancs
with the exception In Article 924 when MO-
sssary in oonneotion with construotioa work
‘on said leases.
2. Thr Land Comnleaioner has authority
to make rules and regulations for explora-
tion work only on leaeed lands, and then eub-
j%ot to Article 9241 V. P. C. There is no
authority for granting a permit or mak%u
rules which would permit and rsgulats such
explorations on unlearned lands.
3* Private oonoorm which have obtain-
ed geophyeioal iniormatlon on odr lands
without permit or lease are liable to the
State in damages iOr the valve Or the prlV-
ile$e so exercised.
Yours vary truly
APPROVBD: ATTCRNBY
GENERALO;lFTEXAS
ltiiiiy& By ‘~BtbY/’ ~
Aeaiat
otc : Jmo
r/ Lip7
Ron a. Noa, III
Aaeirtant'