AUSTIN – A long-running battle involving state objections to a coastal navigation district’s exclusive lease with an oyster-farming business has reached the Texas Supreme Court.
The lease was initiated in 2014 when commissioners of the Chambers-Liberty Counties Navigation District conveyed 23,000 acres of submerged land to the business and granted it the right to protect its oyster beds from trespassers.
The district supported the company — Sustainable Texas Oyster Resource Management, or STORM – in its effort to obtain a federal permit to construct oyster beds. STORM then sent “No Trespass Notices” to holders of oyster harvesting permits that had been issued by the Texas Parks and Wildlife Department.
In 2015 the state sued the district and STORM, arguing that the commissioners had exceeded their legal authority by leasing the submerged lands. The state sought restitution for each oyster harvested.
The navigation district moved to dismiss the suit, arguing that its governmental immunity was not waived by statute. The trial court denied the dismissal motion, a ruling upheld in 2018 by the Third Court of Appeals in Austin. And in January, the appeal of that decision was consolidated with STORM’s related mandamus petition for oral arguments before the Supreme Court.
Representing the navigation district, James Parker of Austin’s Lloyd Gosselink did not challenge the state’s authority to regulate STORM’s oyster farming activities, arguing instead that the transaction was a simple property lease.
“The lease conveys a possessory interest in the land,” said Parker. “It is not a conveyance of possession or ownership of the wildlife.”
STORM cannot harvest the oysters unless they get a permit and license from the Parks and Wildlife Department, Parker said. He likened the agreement to a deer lease where the hunters have access to private land but have to be licensed by the state to hunt.
Craig Enoch said that his client, STORM, had never argued it could harvest the oysters without a permit. He said that the parks department had refused to issue a permit because it disputed the navigation district’s authority to lease the land.
“Don’t listen to the siren song of the state. There is clear authorization to lease the land. They just can’t lease it for oystering,” Enoch said.
That statement provided the state’s lawyer with her opening quip to a lively argument.
“I’ve never been called a siren before,” said Assistant Attorney General Linda Secord. “I’m going to pretend that former Justice Enoch meant to compliment the state.”
Secord argued that the submerged acreage in the Galveston and Trinity Bays was conveyed to the navigation district in 1957 and 1967 for the purposes of navigation; under those terms, the district had no authority to lease that property to a private business for any purpose.
“This is not the kind of land that can be privately held. If the district doesn’t need it any more, they have to sell it back to the state,” Secord said.
When Justice Jeffrey Boyd suggested that the state’s beef might be with STORM, not the district, Secord disagreed. For reasons of health and safe water concerns, the Department of Parks and Wildlife regulates oyster harvests by issuing permits – known as “certificates of location” – that limit oyster fishing to certain sites. Secord said that district support for STORM’s “trespass” warnings to other state-licensed oyster-harvesting operations, in effect, superseded that state regulatory authority.
“We have to go after the navigation district because they are the fount of the problem,” Secord said.
Conservation groups have weighed in on the dispute. In a post-submission amicus brief, The Texas Chapter of the Coastal Conservation Association said the lease violated state law by allowing STORM to exclude competing businesses and recreational harvesters from fishing.
In response, the navigation district said nothing in the lease grants STORM the power to exclude recreational activities from the submerged land.
Watch the arguments in Chambers-Liberty Ctys. Nav. Dist., et al. v. State here.