Mississippi Advisory Opinions June 19, 1991: 19910619 (June 19, 1991)

Advisory Opinion Text

Mr. J.E. Maher

Chairman

Hazardous Waste Technical Siting Committee

Department of Finance and Administration

455 North Lamar Street

Jackson, Mississippi 39202

Re: Opinion Request - Construction of State-Owned Hazardous Waste Disposal Facility on Sixteenth Section Lands

Dear Mr. Maher, Attorney General Mike Moore received your request for an opinion, and asked me to respond. You have submitted your opinion request on behalf of the Mississippi Hazardous Waste Technical Siting Committee, which is charged with selecting the site for a state-owned hazardous waste disposal facility.

The Technical Siting Committee, pursuant to the Mississippi Hazardous Waste Facility Siting Act of 1990 (Miss. Code Ann. § 17-18-1 et seq.), has adopted criteria and methodology for selecting such a site, and has actively sought volunteer communities interested in hosting the facility. However, since no community volunteered by the statutory deadline, the Technical Siting Committee is directed by statute to give priority in making its selection to potential sites located on state-owned property. The Siting Act provides,

If the site is to be located on state-owned land, then the site shall consist of a tract of land of not less than three hundred (300) acres owned by the state on March 31, 1990, but it shall not be necessary for the entire tract to be used in the operation of the facility.

Miss. Code Ann. § 17-18-13 (1972) .

Based upon the foregoing, you ask,

Can the Technical Siting Committee construct the state hazardous waste management facility on sixteenth section school lands?

Sixteenth Section lands “constitute property held in trust for the benefit of the public schools and must be treated as such.” Miss. Code Ann. § 29-3-1(1) (1972) . Title to these trust lands rests in the State of Mississippi as trustee. Hill v. Thompso n, 564 So.2d 1, 6 (Miss. 1990) . The State, as trustee, may not divest itself of its duties. Turney v. Marion County Board of Education , 481 So.2d 770, 776-77 (Miss. 1985) . The inhabitants and, more specifically, the public schools of the respective townships, are the beneficiaries of the trust. The state, acting by and through the school boards to whom it has delegated management responsibilities over sixteenth section land, must exercise the general powers of a trustee with the same general restrictions and liabilities of a trustee. Id . Common law rules enforceable in the case of private trusts are applied to the public school lands trust. Hill v. Thompson at 6.

In examining the responsibilities of a County Board of Supervisors acting as trustees of sixteenth section land, the Mississippi Supreme Court stated,

The Board of Supervisors . . . were Trustees of the lands involved for the benefit of the educable children of the township in which it lay . . . . As such Trustees they were required, like all other fiduciaries, to exercise a higher degree of care with reference to the administration of their trust than in the management of their own individual personal business, and furthermore, even than in attending to the general run of the county's business.

Humble Oil & Refining Co. v. State , 206 Miss. 847, 41 So.2d 26, 27 (1949) .

Furthermore, “a trustee is held to great strictness in his dealings with the property in his hands, and is required to protect the trust estate from waste.” 90 C.J.S. Trusts § 271. “Waste” has been defined as “a violation of the obligation of the tenant to treat the premises in such a manner that no harm is done to them, and that the estate may revert to those having the reversionary interest without material deterioration.” 78 Am.Jur. 2d Waste § 1. The Mississippi Supreme Court has specifically defined “waste” in the context of sixteenth section lands in the following manner:

Waste is defined to be any substantial injury done to the inheritance, by one having a limited estate, during the continuance of his estate . . . . What constitutes waste is determined by the consideration as to whether or not the act done results injury to the inheritance.

Moss Point Lumber Co. v. Board of Supervisors of Harrison County , 89 Miss. 448, 42 So. 290, 300-301 (1906) .

Mississippi statutes specifically forbid acts of waste on public trust school lands:

If any lessee of any such sixteenth section land shall commit, cause to be committed, or permit the commission of any act of waste on any sixteenth section lands under lease to such lessee, then such lease shall thereupon, as to such lessee, cease and terminate and shall thenceforth be null and void; and the board of education shall have the right to institute an action in any court of competent jurisdiction to secure the cancellation of same of record, to recover damages for such waste, and to maintain an action in ejectment to recover possession of the same.

Miss. Code Ann. § 29-3-87 (1972) .

The Hazardous Waste Technical Siting Committee, as an official agency of state government, is constrained by these limitations when it considers the use of public trust school lands as a possible site for a hazardous waste disposal facility. Even though, according to the information provided, the facility is expected to have a useful life of 40 to 50 years, after that time it will be subject to stringent federal and state closure and post-closure requirements and regulations. Subsequent uses of the land will be severely limited under this regime, and it is highly likely that the marketability of the property will be severely diminished. In all likelihood (according to the information provided) at the conclusion of the useful life of the facility, the property will no longer be able to generate income for its intended beneficiaries. This would clearly constitute an “injury to the inheritance” and waste under the statutory and case law of this state.

There are numerous Mississippi cases suggesting that changes in the use of sixteenth section land which increase or enhance the value of the reversionary interest do not constitute waste. See Cannon v. Barry , 59 Miss. 289 (1881) (“nothing will ordinarily be held to constitute waste which . . . promotes rather than diminishes the permanent value of the property”); Moss Point Lumber Company, supra, Whitfield, concurring (“that which benefits the inheritance can never be waste.”); Dodds v. Sixteenth Section Development Corp ., 99 So.2d 897 (Miss. 1958) (approving construction of lake on sixteenth section land which would constitute “benefit to the inheritance”). However, you inform this office that construction of a hazardous waste disposal facility will almost certainly reduce the long-term marketability and value of the property on which it is built, making these cases inapplicable.

Similarly, there are Mississippi cases suggesting that the Legislature may authorize the appropriation of sixteenth section land as long as other public purposes are being served. However, these cases also recognize enhancement of value as an important criteria justifying such appropriation. Washington County v. Board of Mississippi Levee Commissioners , 171 Miss. 80, 156 So. 872 (1934) (condemnation of sixteenth section lands to construct levee system enhanced protected school lands “from a state of practical worthlessness to one of great value”); Board of Supervisors of Covington County v. State Highway Commission , 194 So. 743 (Miss. 1940) (approving highway construction where “it certainly could not be held that constructing such a highway through a sixteenth section would seriously impair the value of that section to the inhabitants of the township”).

Assuming that the construction of a hazardous waste disposal facility on sixteenth section land would decrease the long-term marketability and value of that property, it is the opinion of this office that such construction would constitute “waste, ” in violation of state law and the state's fiduciary duty as trustee of such sixteenth section lands. Consequently, the Mississippi Hazardous Waste Technical Siting Authority may not construct such a facility on public trust school lands.

I hope this sufficiently answers your inquiry.

Attorney General Mike Moore

Wilson H. Carroll Special Assistant Attorney General

ATTACHMENT

June 12, 1991

Attorney General Mike Moore

Post Office Box 220

Jackson, Mississippi 39205

Re: Opinion Request From The Mississippi Hazardous Waste Technical Siting Committee

Dear Attorney General Moore:

On behalf of the Mississippi Hazardous Waste Technical Siting Committee, I am writing to request an opinion from your office regarding the use of sixteenth section lands as a site for a state-owned hazardous waste management facility.

The Technical Siting Committee is responsible for developing criteria for the selection of such a site, and for proposing a list of three candidate sites for submission to the Mississippi Hazardous Waste Facility Siting Authority. The Hazardous Waste Facility Siting Act of 1990 directs the Siting Committee that “priority shall be given to the evaluation of potential sites located on state-owned property and in communities volunteering to host the state commercial hazardous waste management facility.” (Miss. Code Ann. 17-18-3(d)) . The Act also designates Washington and Issaquena Counties as volunteer communities but, based upon the geological and hydrological criteria adopted by the Technical Siting Committee, it is unlikely that either of these communities will be priority areas for consideration.

No other communities volunteered to host the facilities within the deadline established by the Technical Siting Committee, so the Siting Committee is now in the process of studying state-owned sites within areas otherwise meeting the criteria established by the Committee. However, a significant percentage of the available state-owned lands is sixteenth section school lands. Recognizing the state's special responsibilities in dealing with public trust lands, the Technical Siting Committee has instructed me to request an opinion from your office on the following question:

Can the Technical Siting Committee construct the state hazardous waste management facility on sixteenth section school land?

Such a facility will probably have a useful life of forty to fifty years, after which it will be closed and monitored on a long-term basis pursuant to strigent state and federal guidelines.

I look forward to your response.

Sincerely, J. E. Maher Chairman Hazardous Waste Technical Siting Committee

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Notes:

Section 17-18-3(d) directs the Technical Siting Committee to give priority to “communities volunteering to host the state commercial hazardous waste management facility.” In a subsequent provision, Washington and Issaquena Counties were designated as “volunteer communities” without the necessity of taking any overt steps to obtain this status (Section 17-18-17(2)). However, according to the information provided, neither of these locations is likely to be deemed suitable under the geological and hydrological criteria adopted by the Technical Siting Committee.

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