Can Tennessee's wildlife officers agree to enforce a city or county noise ordinance on public waters as a side gig to their boating-safety patrols?

Plain-English summary

Representative Darren Jernigan asked whether the Tennessee Wildlife Resources Agency could enter into an interlocal agreement with a city or county to enforce that local government's noise ordinance on the waters it patrolled.

The AG said no, and the reasoning hinged on the distinction between cooperation and authority. The TWRA already had clear statutory authority to enforce two state-law noise restrictions on public waters: the 86-decibel boat-noise cap at fifty feet (Tenn. Code Ann. § 69-9-302 and Rule 1660-02-09-.01), and the state's general disorderly-conduct statute reaching "unreasonable noise that prevents others from carrying on lawful activities" (Tenn. Code Ann. § 39-17-305(b)) when committed on public waters. So a TWRA officer who detected actually unlawful noise had state-law tools to address it.

What the TWRA did not have was authority to enforce a particular city's or county's local noise ordinance. The Interlocal Cooperation Act lets public agencies "enter into agreements with one another for joint or cooperative action," but the cooperation must stay within "power or powers, privileges or authority exercised or capable of exercise" by the agency. Tenn. Code Ann. § 12-9-104(a)(1). Citing the Sixth Circuit in Foster Wheeler, the AG explained that the Act is procedural, it lets agencies coordinate powers they already have. It does not create new powers. So an agreement between TWRA and a local law enforcement agency could let them coordinate enforcement of state law, but could not graft local-ordinance enforcement authority onto TWRA officers who lacked that authority to start with.

Currency note

This opinion was issued in 2015. 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.

Common questions

Q: Could TWRA officers ever address noisy boats?
A: Yes, but only through state law. They could enforce the 86 dBA boat-noise cap (Tenn. Code Ann. § 69-9-302 and Rule 1660-02-09-.01), and they could arrest for disorderly conduct on public waters under § 70-1-305(6)(B) when § 39-17-305(b)'s "unreasonable noise" element was met. What they could not do was write a citation for violating a local noise ordinance.

Q: Why didn't the Interlocal Cooperation Act solve this?
A: Because the Act is procedural, not substantive. It lets agencies coordinate the powers they already have. It does not let a state agency take on enforcement of local laws (or vice versa) merely because two governments signed a piece of paper. The Sixth Circuit's Foster Wheeler decision said this directly: agencies operating under the Act can exercise only those rights "which they are privileged or capable of exercising under state law."

Q: Could a local law enforcement officer enforce TWRA-administered state boating rules under such an agreement?
A: That was not the question the AG answered. The reverse-direction question (local officers enforcing state regulations they don't normally enforce) raises a parallel issue, an agency cannot pick up authority it doesn't otherwise have through an interlocal agreement.

Q: Would the result have changed if state law expressly authorized TWRA to enforce local ordinances on waters?
A: Yes. The whole opinion turned on the absence of state-law authority. If the General Assembly had vested TWRA with the power to enforce local noise ordinances on public waters, an interlocal agreement could then be used to coordinate that enforcement with the relevant local agency.

Background and statutory framework

The TWRA's enforcement authority on public waters rested on a layered statutory framework. Tenn. Code Ann. § 69-9-220(a) and Rule 1660-02-05-.01 gave the TWRA general boating-safety enforcement authority. The agency's commissioned officers had broader criminal-arrest authority under § 70-1-305(6)(B) for any criminal offense committed on public waters. The 86 dBA noise rule in § 69-9-302 was the state-level vessel noise regulation.

The Interlocal Cooperation Act, Tenn. Code Ann. § 12-9-101 et seq., was Tennessee's procedural framework for joint action among public agencies. Section 12-9-104(b) permitted agreements "for joint or cooperative action," but § 12-9-104(a)(1) limited those agreements to powers "exercised or capable of exercise" by the participating agencies. The Sixth Circuit's reading in Foster Wheeler Energy Corp. v. Metropolitan Knox Solid Waste Authority, 970 F.2d 199, 203-04 (6th Cir. 1992), was central, the Act is "procedural" and "does not purport to relieve public agencies of the limits under which they act individually."

Citations and references

Statutes:
- Tenn. Code Ann. § 69-9-220(a) (TWRA boating enforcement)
- Tenn. Code Ann. § 69-9-302 (86 dBA boat-noise cap)
- Tenn. Code Ann. § 70-1-305(6)(B), (7) (TWRA arrest authority on public waters)
- Tenn. Code Ann. § 39-17-305(b) (disorderly conduct, unreasonable noise)
- Tenn. Code Ann. §§ 12-9-101 to -104 (Interlocal Cooperation Act)
- Tenn. Comp. R. & Regs. 1660-02-05-.01 (boating-safety regulations)
- Tenn. Comp. R. & Regs. 1660-02-09-.01 (vessel noise rule)

Cases:
- Foster Wheeler Energy Corp. v. Metro. Knox Solid Waste Auth., Inc., 970 F.2d 199 (6th Cir. 1992) (Interlocal Cooperation Act is procedural, does not create new powers)

Related AG opinions:
- Tenn. Att'y Gen. Op. 06-081 (May 1, 2006) (Interlocal Act does not relieve agencies of individual limits)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2015/op15-68.pdf

Original opinion text

September 23, 2015

Opinion No. 15-68

Authority of TWRA Officers to Enforce Local Noise Ordinances on Waters by Agreement with Local Law Enforcement Agency

Question

May the Tennessee Wildlife Resources Agency ("TWRA") enter into an agreement with a local law enforcement agency whereby the TWRA, secondary to carrying out TWRA's duty to enforce boating regulations under Tenn. Code Ann. Title 69, Chapter 9, would enforce a local noise ordinance on waters that are within the territorial jurisdiction of the local government entity that is served by the local law enforcement agency?

Opinion

No. The TWRA lacks authority under state law to enforce a local noise ordinance. Although the Interlocal Cooperation Act (the "Act") allows a state agency to enter into an agreement with a local government agency to jointly pursue common goals, the Act does not allow a public agency to exceed the authority otherwise vested in it under state law.

ANALYSIS

The TWRA has the authority to enforce state laws and regulations governing boating safety. See Tenn. Code Ann. § 69-9-220(a); Tenn. Comp. R. & Regs. 1660-02-05-.01. One such law prohibits persons from "operat[ing] any vessel in or upon the waters of Tennessee in such a manner as to exceed 86 [dBA] . . . measured at a distance of fifty feet from the vessel." Tenn. Code Ann. § 69-9-302; see also Tenn. Comp. R. & Regs. 1660-02-09-.01 (providing that noise restriction applies "whether or not said vessel is in motion").

The director of the TWRA and others whom he designates also have the authority to "arrest any person committing or attempting to commit a criminal offense in violation of any of the laws of this state . . . if the offense is committed on public waters." Tenn. Code Ann. § 70-1-305(6)(B); see also id. § 70-1-305(7). One of those offenses is disorderly conduct, which includes "unreasonable noise that prevents others from carrying on lawful activities." Id. § 39-17-305(b).

Although the TWRA has authority to enforce these state laws and regulations relating to noise, the agency lacks statutory or regulatory authority to enforce local noise ordinances. The Interlocal Cooperation Act allows public agencies to "enter into agreements with one another for joint or cooperative action." Tenn. Code Ann. § 12-9-104(b). The Act makes clear, however, that such cooperative action is limited to "power or powers, privileges or authority exercised or capable of exercise" by the public agency. Id. § 12-9-104(a)(1); see also Foster Wheeler Energy Corp. v. Metro. Knox Solid Waste Auth., Inc., 970 F.2d 199, 203 (6th Cir. 1992) ("Section 12-9-104(a) states that a political subdivision may only exercise those rights under the Act which they are privileged or capable of exercising under state law or which are otherwise vested in their governing bodies."). In other words, the Act "is a procedural statute which enables political subdivisions to jointly undertake the exercise of powers and privileges with which they are vested." Foster Wheeler, 970 F.2d at 204. The Act "does not purport to relieve public agencies of the limits under which they act individually." Tenn. Att'y. Gen. Op. 06-081 (May 1, 2006).

Pursuant to the Act, the TWRA may enter into an agreement with a local law enforcement agency to cooperate toward the common goal of reducing noise on public waters, but, in doing so, the TWRA may not take any actions that would exceed the authority otherwise vested in it under state law. Thus, the TWRA may agree to cooperate to the extent of carrying out its lawful authority to enforce Tenn. Code Ann. § 69-9-302 and Tenn. Comp. R. & Regs. 1660-02-09-.01, or to enforce the state ban on disorderly conduct when that offense is committed on public waters. However, the TWRA may not agree to enforce a local noise ordinance because the TWRA is not vested with that enforcement authority under state law.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

SARAH K. CAMPBELL
Special Assistant to the Solicitor General and the Attorney General

SOHNIA W. HONG
Senior Counsel

Requested by:
The Honorable Darren Jernigan
State Representative
24 Legislative Plaza
Nashville, Tennessee 37243-6959