Can a Mississippi levee board partner with the Army Corps to build a flood-control berm that disturbs a cemetery on the levee toe?

Plain-English summary

The Board of Mississippi Levee Commissioners is constitutionally tasked with operating and maintaining the levee system protecting the Mississippi Delta from Mississippi River flooding. The Board works with the U.S. Army Corps of Engineers on the federal Mississippi River and Tributaries Project. The Corps determined it needed a landside berm at Buck Chute, in western Warren County, to protect the levee's structural integrity. The Board owned the property; the Corps would do the construction. One complication: a cemetery at the toe of the levee would be disturbed by the work, with headstones temporarily removed and replaced after construction.

The Board's attorney asked the AG whether the Board had authority to construct, or to partner with the Corps to construct, the berm. The AG split the analysis:

1. AG cannot opine on federal law: Under Miss. Code Ann. § 7-5-25, AG opinions cover Mississippi state law only. The AG could not address whether the Corps had authority under federal law to do the project. The Board's question would have to be addressed to the Board's authority under Mississippi law to participate.

2. State-law authority: Article 11, Section 232 of the Mississippi Constitution gives the Board "plenary" authority over erection, repair, and maintenance of levees and the power to cede those rights and the maintenance, management, and control to the United States. The Mississippi Supreme Court in State v. Board of Levee Commissioners for the Yazoo-Mississippi Delta, 932 So. 2d 12 (Miss. 2006), confirmed that the levee boards have "plenary" authority, defined as "full, entire, complete, absolute, perfect, unqualified." The Board has authority to partner with the Corps on the berm.

3. Cemetery review: Before letting bids for construction affecting the cemetery, the Board must notify the Mississippi Department of Archives and History under § 39-7-22(1). Under § 39-7-22(2), construction cannot commence until a permit issues if the Department determines that the cemetery is a landmark or historically significant and will be adversely affected. The opinion also flags § 97-29-19, which penalizes "wantonly" digging into a grave or disturbing remains.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The Board of Mississippi Levee Commissioners operates and maintains a system of levees on the Mississippi River and other inland streams throughout the Mississippi Delta. The opinion quotes Article 11, Sections 227 and 232 of the Mississippi Constitution. Section 227 says, "A levee system shall be maintained in the state as provided in this article."

Article 11, Section 232 reads:

The commissioners of said levee districts shall have supervision of the erection, repair, and maintenance of the levees in their respective districts, and shall have power to cede all their rights of way and levees and the maintenance, management and control thereof to the government of the United States.

That last clause, the cession power, is what enables federal partnership. The Board can transfer authority to the Corps for federal flood-control projects, including the Mississippi River and Tributaries Project (MR&T), which is the federal authority for Mississippi River flood-control work.

The Mississippi Supreme Court has read these constitutional provisions broadly. In State v. Board of Levee Commissioners for the Yazoo-Mississippi Delta, 932 So. 2d 12 (Miss. 2006), the court (citing the 1904 Ham case) said:

It was the intention to vest the boards of levee commissioners with plenary authority to deal with the 'erection, maintenance and repair' of the levee system at their discretion, for the purpose of protecting the property of their respective districts from loss and destruction.

Plenary, the AG noted via Black's Law Dictionary, means "full, entire, complete, absolute, perfect, unqualified." That is sweeping authority for state-law purposes.

The cemetery layer is the constraint. Mississippi protects historic sites and human remains through several statutory schemes:

• §§ 39-7-1 et seq. require permits from the Mississippi Department of Archives and History for alteration of historic sites, objects, buildings, artifacts, archaeological sites, or landmarks on land belonging to a city, county, or other political subdivision.
• § 39-7-22(1) specifically requires public-construction notice to Archives and History "before the letting of bids."
• § 39-7-22(2) bars construction until a permit issues if the Department determines that the cemetery is a landmark or historically significant and will be adversely affected.
• § 97-29-19 criminalizes "wantonly" digging into a grave or disturbing human remains, with penalties up to five years' imprisonment in the penitentiary.

The Board must notify Archives and History before bids for the berm project affecting the cemetery. The Corps's plan to preserve graves and replace headstones does not remove that notice requirement. Whether construction also requires a permit depends on the Department's findings under § 39-7-22(2).

The AG introduces the cemetery discussion with "absent an emergency" and cites §§ 33-15-1 et seq. in a footnote. It does not determine that this project is an emergency or specify how an emergency would change the notice or permit process.

Common questions

Q: Why did the AG decline to address the Corps's authority?
A: The AG can opine only on Mississippi state law. The Corps is a federal entity with authority drawn from federal statutes, regulations, and the Mississippi River and Tributaries Project authorization. Whether the Corps can do this project under federal law is a federal question outside the AG's jurisdiction.

Q: What does "plenary" authority mean for the Board's day-to-day decisions?
A: It means broad discretion within the constitutional grant. The Board can decide which levees to repair, which methods to use, and whether to partner with the Corps, without needing specific legislative authorization for each project. The plenary authority does not, however, override other Mississippi laws like the cemetery-permit requirements.

Q: What did the opinion require before the cemetery could be disturbed?
A: Under § 39-7-22(1), the Board had to notify the Department of Archives and History before letting bids. Under § 39-7-22(2), if the Department determined the cemetery was a landmark or historically significant and would be adversely affected, the construction could not commence until the Department issued a permit.

Q: What land did the cemetery-permit requirement cover?
A: The opinion cites §§ 39-7-1 et seq., which apply to historic sites, artifacts, archaeological sites, and landmarks "located on land belonging to a city, county or other political subdivision." The opinion addressed a cemetery on public property owned by the Levee Board.

Citations and references

Statutes:

• Miss. Code Ann. §§ 39-7-1 et seq. (Mississippi Antiquities Law)
• Miss. Code Ann. § 39-7-22(1) (Notice to Archives and History before public construction)
• Miss. Code Ann. § 39-7-22(2) (Archives and History permit requirement)
• Miss. Code Ann. § 97-29-19 (Criminal penalties for wantonly disturbing graves)
• Miss. Code Ann. § 7-5-25 (Limits AG opinions to state law)
• Miss. Code Ann. §§ 33-15-1 et seq. (Mississippi Emergency Management Law, referenced in footnote)

Constitution:

• Article 11, Section 227, Mississippi Constitution of 1890 (Levee system)
• Article 11, Section 232, Mississippi Constitution of 1890 (Levee commissioner authority)

Cases:

• State v. Board of Levee Commissioners for the Yazoo-Mississippi Delta, 932 So. 2d 12 (Miss. 2006)
• Ham v. Board of Levee Com'rs for Yazoo-Mississippi Delta, 83 Miss. 534, 35 So. 943 (1904)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2020/07/H.Douglas_January-8-2020-Authority-of-Levee-Board-to-Construct-a-Berm-for-Federal-Program.pdf

Original opinion text

STATE OF MISSISSIPPI

JIM HOOD
ATTORNEY GENERAL

OPINIONS DIVISION

January 8, 2020

Heath S. Douglas, Esquire
Attorney for the Board of Mississippi Levee Commissioners
Post Office Box 918
Greenville, Mississippi 38702-0918

Re: Authority of Levee Board to Construct a Berm for Federal Program

Dear Mr. Douglas:

Attorney General Jim Hood is in receipt of your opinion request and has assigned it to me for research and reply.

Facts

In your letter, you explain that the Board of Mississippi Levee Commissioners (hereinafter "Levee Board") is constitutionally tasked with the responsibility to operate and maintain a system of levees on the Mississippi River and other inland streams throughout the Mississippi Delta. The Levee Board works in conjunction with the United States Army Corps of Engineers (hereinafter "the Corps") in completing projects to improve/repair the levee system in furtherance of the federal Mississippi River and Tributaries Project. You further explain that in carrying out its federally-mandated duties, the Corps has determined that it needs to build a landside berm in an area on the protected side of the Mainline Mississippi River Levee known as Buck Chute in western Warren County. Landside berms are effective in protecting the integrity of the levee, particularly in sensitive areas such as Buck Chute. Lastly, your letter provides that the Levee Board owns the property required for the Corps to complete the berm project, but in surveying the property, it has been determined that a cemetery at the toe of the levee will be affected by the construction. The Corps has agreed to preserve the integrity of the graves, remove the headstones, and replace the headstones in the proper position after completion of the project.

Question Presented

Does the Levee Board, as fee owner of land, have the authority to, through its partner the Corps of Engineers, have the right to construct a berm along the Mainline Mississippi River Levee, in furtherance of the Mississippi River and Tributaries Project?

Legal Research and Response

In response, we must first clarify that our office is empowered by Section 7-5-25 of the Mississippi Code Annotated to render official opinions on matters of state law only, and not on matters of federal law. Because the United States Army Corps of Engineers is a federal entity, the relevant federal laws and regulations must be consulted regarding its ability to do the project proposed, and this office cannot render an official opinion as to the authority of the Corps to construct a berm or the terms of the federal Mississippi River and Tributaries Project. Thus, our opinion is limited to the authority of the Levee Board to construct, or partner with the Corps to construct, a berm along the Mainline Mississippi River Levee.

Article 11, Section 227 of the Mississippi Constitution of 1890 reads as follows:

> A levee system shall be maintained in the state as provided in this article.

Article 11, Section 232 of the Mississippi Constitution of 1890 reads as follows:

> The commissioners of said levee districts shall have supervision of the erection, repair, and maintenance of the levees in their respective districts, and shall have power to cede all their rights of way and levees and the maintenance, management and control thereof to the government of the United States.

Additionally, the Mississippi Supreme Court in State v. Board of Levee Commissioners for the Yazoo-Mississippi Delta, 932 So. 2d 12 (Miss. 2006), citing Ham v. Board of Levee Com'rs for Yazoo-Mississippi Delta, 83 Miss. 534, 35 So. 943 (1904), stated:

> It was the intention to vest the boards of levee commissioners with plenary authority to deal with the 'erection, maintenance and repair' of the levee system at their discretion, for the purpose of protecting the property of their respective districts from loss and destruction.

(Emphasis added).

Black's Law Dictionary (5th ed. 1983) defines plenary as "full, entire, complete, absolute, perfect, unqualified." Thus, it is clear that the Levee Board is granted the authority to ensure that a levee system is maintained. Additionally, the Levee Board is granted the authority to turn over its authority to maintain the levees in its district to the United States Army Corps of Engineers, as it is a part of the federal government. Thus, it is the opinion of this office that the Levee Board has the authority to partner with the Corps to construct a berm along the Mainline Mississippi River Levee in order to protect the property of its district from loss and destruction.

However, absent an emergency, please note that Sections 39-7-1 et seq. of the Mississippi Code Annotated prohibit anyone from altering any historic site, object, building, artifact, implement, any archaeological site or landmark of any kind located on land belonging to a city, county or other political subdivision, without a permit from the Board of Trustees of the Mississippi Department of Archives and History. Thus, before the letting of bids for the construction of a berm that will affect a cemetery located on public property, the Board of Levee Commissioners must notify the Department of Archives and History.

Miss. Code Ann. Section 39-7-22(1). If the Department determines that the cemetery is a landmark or is historically significant and will be adversely affected by the public construction or improvement, the proposed public construction or improvement may not be commenced until the Department has issued a permit. Miss. Code Ann. Section 39-7-22(2).

Please also note that Section 97-29-19 of the Mississippi Code Annotated provides that every person who:

> Shall wantonly dig into or open the grave or other place of interment where the remains of any dead human body is interred, or wantonly disturb the remains of any dead human body therein interred, shall upon conviction be imprisoned in the penitentiary not exceeding five years or in the county jail not more than one year, or be fined not more than five hundred dollars or both.

If this office may be of any further assistance to you, please let us know.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

Avery Mounger Lee
Special Assistant Attorney General

Footnote: See Miss. Code Ann. Sections 33-15-1 et seq.