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:
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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.
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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.
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Cemetery permits: The Board must comply with Miss. Code Ann. §§ 39-7-1 et seq. before disturbing the cemetery. Section 39-7-22(1) requires notifying the Mississippi Department of Archives and History; § 39-7-22(2) gives Archives & History the authority to require a permit if it determines the cemetery is a landmark or is historically significant. Until that determination, the construction cannot begin. The opinion also flags § 97-29-19, which criminalizes "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
Mississippi has two levee districts: the Mississippi Levee District (covering Bolivar, Humphreys, Issaquena, Sharkey, Warren, and Washington counties) and the Yazoo-Mississippi Delta Levee District (covering Coahoma, Quitman, Sunflower, Tallahatchie, and Tunica counties, with portions of others). Each is governed by a Board of Levee Commissioners with constitutional authority traced to Article 11 of the Mississippi Constitution.
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) gives Archives and History the authority to determine that the site is a landmark or historically significant and to require a permit before construction commences. Until the permit issues, the construction cannot start.
- § 97-29-19 criminalizes "wantonly" digging into a grave or disturbing human remains, with penalties up to five years' imprisonment in the penitentiary.
The AG's opinion preserves the project's path forward but routes the Board through Archives and History first. The cemetery cannot be disturbed without that review. The Corps's preservation plan (preserve graves, remove headstones, replace after construction) does not skip the Archives notification step. The notification and permit are required by state law independently of any Corps mitigation plan.
The footnote on emergencies (referencing §§ 33-15-1 et seq., the Mississippi Emergency Management Law) reflects an exception. In a true flood-emergency scenario, the normal cemetery-permit process can be bypassed when immediate action is needed to protect public safety. Buck Chute is a routine project, not an emergency, so the standard process applies.
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 happens if Archives and History refuses a permit for the Buck Chute cemetery?
A: Then the construction at that location cannot proceed as planned. The Board would have to redesign the project to avoid the cemetery, work with Archives and History on conditions for a permit, or, if applicable, invoke an emergency exception. Litigation is also possible if the Board disputes the historic-significance determination.
Q: What about private cemeteries on or near levees?
A: Section 39-7-22 specifically addresses cemeteries "on land belonging to a city, county or other political subdivision." Private cemeteries on private land may have different procedural requirements. The opinion is specific to public-land cemetery situations.
Q: Could the Corps avoid the state-law constraint by completing the project under federal authority alone?
A: The opinion does not address that scenario directly. As a general matter, federal preemption questions arise when state law conflicts with federal authority. A federal flood-control project may, in some circumstances, override state cemetery-permit requirements, but the analysis is fact-specific and depends on the particular federal authority and the conflict at issue.
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 districts)
- 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
Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.
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 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.