Untitled Texas Attorney General Opinion ( 1967 )

.,ITORNY;Y C&NIcHAL
June 9, 196-i'
Hon. J. R. Singleton Opinion No. N-87
Executive Director
Texas Parks & Wildlife Dept. Re: What 1s the seaward
Auat in, Texas boundary of Texas and
whether Texas can unl-
laterally extend its gulf-
ward boundaries; and, If
so, how far can such
boundaries be extended,
Dear Mr. Singleton: and related questions.
You have 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 and codified as Article 5415a, Vernon’s Civil
Statutes), which fixed the gulfward boundary of Texas at 27
marine leagues from the coast. This Article was amended in
1947.80 as to extend the boundary of Texas seawalrd to the outer-
most limits of the Continental Shelf (Acts 1947, 50th Leg., p.
451, ch. 253).
Mention la also made of Public Law 89-658, passed by
the 89th Congress of the United States In 1966, codified as
Sections 1091-1094, Title 16, United States Code. This legls-
latlon eetabllshee a fisheries eohe off the coast of the United
States, the limit of such zone being 12 nautical miles Into the
sea from the coast.
YOU state that you are presently exercising control and
regulation oi fishing In aoaatal waters extending irom the shore
to a line 3 marine leagues Into the Gulf cf Mexlae and you won-
der, In view of the above cited statutes, whether you should
attempt ta exercise jurisdiction over fishing out to the 12
nautical mile line as 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, how far can such
boundarles’be extended?
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r
Hon. J. R. Singleton, Page 2 (MW87)
(2) Do preaent applicable fishing re latlons
of Texas apply to the twelve 12 mile
fisheries zone created by PL BYg-658. If
not, to what portion of the twelve (12)
mile zone do they apply?
(3) Do present applicable fishing regulatlcns
apply to an area contiguous to the Texas
shore extending out twenty-seven (27)
marine miles or to the edge of the contl-
nental shelf?
To answer these questions, it is necessary to consider
the history of the ownership of the submerged lands off the
aoaet of Texas. In 1950, the Supreme Court of the United States,
In Unlted States v. Texas, 339 U.S. 707, 340 U.S. 900, held that
themlted States possessed paramount rights ln all submerged
lands off the coast OS Texas 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 3 geographic miles distant from the coast line, or such ad-
dltlonal distance as its seaward boundary existed from its coast
at the time a state became a member of the United States; with
a limit of three miles in the Atlantic and Pacific Oceans and
three leagues in the Gulf of Mexico. The record in the Congress
made It clear that the Texas boundary at ail times since 1836
existed at three marine leaguea in the Gulf of Mexico.
The gulfward boundary- OS Texas subsequently was confirmed
at 3 marine leagues from the coast. -United States v. Louisiana,
et al., 363 U.S. 1 (1960).
It eheuld be observed that the Submerged Lands Act
relinqulshcd to the states all right, title and lntereet to the
lands beneath the coastal waters and to “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.
The term “natural resources” was defined in Section
1301 aa follows:
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Hon. J. R. Singleton, Page 3 (M-87)
“(e) The term ‘natural resources’ ln-
eludes, without llmltlng the generality thereof,
oil, gas and all other minerals, and fish,
shrimp, oysters, clams, crabs, lobsters, sponges,
kelp, and other marine ~anlmal and plant life but
does not include water power[ or the use of water
for the production of power.'
Accordingly, It would seem clear that the State of
Texas now has 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 was given the exclusive power to regulate the natural
resources in such area.
Ae noted above, the case of United States v. Louisiana,
363 U.S. 1 (1960) determine3 ‘th’ t T hd hip
%‘%%submerged land and’all attendant zeso%ie ?n ?:::,a
bounded by a line 3 marine leagues distant from Texas’ coast,
Moreover , this case also decided the rights of tha United
State6 In the ~eubmerged lands off the coast of Texas beyond
such 3 league line, and at page 84 of the opinion, the Court
defined the respective rights of Texas and the 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, mln-
erals, and other 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 mark and eutcr limit of inland waters;
(2) declaring that the United States is entitled,
as against Texas, to no interest 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 sums of money derived since June 5, 1950,
from the area to which the United States 1~ de-
clared to be entitled.”
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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 and resources 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 and which purport to set the boundary of Texas at a
greater distance gulfward than the 3 marine leagues from the
coast are Ineffective as a result of this decision. The gulf-
ward boundary of Texas is a line extending 3 marine leagues
from the coast, and no action of the Legislature or any offl-
clal agency of Texas aan extend this boundary any further into
the Gulf of Mexico, without the approval of the United States.
Our analysis of United States v,, Louisiana, et al. is
conslatent with the meaning read 1 t thl d 1 1 b th
courta of Texas. Employer8 MutualnCEsualtsy Ern~a`` vJ: Sarkels,
407 S.W;2d 839 (Tex.Clv.App. 19bb, error ref., n.r.e.1.
Furthermore, the above mentioned federal Fisherlea Zone
Act contains no provision enlarglng a state’s ownership of sub-
merged lands and the attendant reseurcc8 and no provision
enlarging a state’s power ts regulate lands and resources wlth-
in the fisheries zone. On the contrary, the Act spec~flcally
states that it shall not be “construed as extending the Jurls-
diction of the states to the natural re8ources beneath and in
the waters within the flaherlea zone estabilahed. . .”
The above dlaauaslon ehould answer most of the ques-
tions you have submitted tt this offlae. Texas cannot uni-
laterally exbend its gulfward boundaries by legislation. The
flehlng regulations promulgated by Texas apply only to the 3
marine league boundary, an@ not tut to the 12 nautical mile
line act by Public Law 8 -658, or te the Continental Shelf line
as provided ln Artlclt 52 15a.
Thre ~ztlll remains t~he question OS whather Texa8,
while owningthe submerged lands and rtamarcea ln an area bounded
by a line 3 marlne leagues from the Coast, oan exElualvely
regulate, aontrtl and administer the rtseuraez feund within
auch.boundarlas. The SubmergedLands Act. stated that it was
the policy of’ the. United Stat~ez Congrera to permit the COaStal
states to control and regulate the development of the natural
resources in the area ceded under the Act.
In Cersa v. Tawes,, 149 F. Supp. 771 (D.C. Md. 1957)’
a three judge district ceurt held that the regulatlen OS Coastal
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.
Hon. J. R. Singleton, Page 5 (M-87)
fisherlee in the territorial waters granted to the states by
th& Submerged Lands Act was within the police power 3f the
individual states, absent any conflicting legislation by Csn-
gress 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 355 U.S. 37 (1957).
There has been no federal legislation which purports
to regulate the fishing industry within the 3 league 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 con-
firming 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
3 league 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, 313 U.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 we will 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.
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Hon. J. R. Singleton, Page 6 (M-87)
j%$4 very truly,
Prepared by Lonny F. Zwiener
Assistant Attorney General
APPROVED: OPINION COMMITTEE
Hawthorne Phillips, Chairman
W. V. Geppert, Co-Chairman
Arthur Sandlin
Milton Richardson
Kerns Taylor
W. 0. Schultz
STAFF LEGALASSISTANT
A. J. Carubbi, Jr.
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