Thursday, October 13, 2022

NORTH CAROLINA LAWSUIT COULD BRING CHANGE TO FISHERIES MANAGEMENT

 

Nearly two years ago, the Coastal Conservation Association, acting through its North Carolina chapter, brought a legal action against the State of North Carolina, alleging that the state has badly mismanaged its marine fishery resources and failed to fulfill what the plaintiffs claim are its “public trust responsibilities” to protect citizens' “public trust rights” to fish in coastal waters.

In announcing the lawsuit, a CCA spokesman claimed that

“The State has failed to meet its legal duty…instead allowing for-profit exploitation of coastal fisheries resources by fewer than 7,000 citizens to supplant the public rights of 11 million citizens to use coastal fisheries resources.”

More particularly, CCA argues that the North Carolina Division of Marine Fisheries has done little or nothing to reverse long-term declines in the health of coastal fish stocks, in particular stocks of river herring, southern flounder, striped bass, spot, croaker, and weakfish.

The CCA has typically been hostile to the commercial fishing industry, often while ignoring or even justifying recreational abuses of marine fisheries resources.  In North Carolina, it again focuses on supposed commercial harm to fisheries resources, complaining that

“three critical state management failures that have infringed on the public’s right to fish for personal use:  (1) facilitating commercial fishing practices and gears that cause staggering amounts of resource wastage; (2) allowing chronic overfishing of multiple fish stocks historically important to the fishing public to cause stock demise; and (3) disregarding a lack of reporting of any harvest by over half of all State commercial fishing license holders.”

Perhaps such complaints are justified, perhaps they are not.  Citing a section of the North Carolina Constitution, CCA alleged in its complaint that

“The public-trust doctrine imposes a fiduciary duty on the State to manage and regulate the harvest of [coastal finfish and shellfish] in a way that protects the right of current and future generations of the public to use public waters to fish.  As a result, the State may not allow the harvest of finfish or shellfish in public waters in quantities or by methods that cause unnecessary waste or impair the sustainability of fish stocks, which in turn threaten the right of current and future generations of the public to use such public waters to fish.”

It further alleges that North Carolina

“has continued to allow—and even facilitated—several commercial fishing practices that result in substantial wastage of coastal fish stocks or their prey species, or result in critical habitat destruction.  Those commercial fishing practices include trawling in estuarine waters with significant populations of juvenile finfish, and using ‘unattended’ gillnets…As a result, stocks of multiple fish species…have declined precipitously—84 to 98 percent—since the last major fisheries management reform legislation was enacted in North Carolina in 1997.”

Not surprisingly, North Carolina regulators strongly objected to the allegations, and sought to have the lawsuit dismissed. 

Such motion to dismiss did not directly address the allegations made but, as is typical in the early phases of litigation, relied on technical legal arguments, including claims that the state had not waved its sovereign immunity with respect to such fisheries issues, and so could not be sued; that only the state could raise claims based on the public trust doctrine; and that, for various reasons, the CCA complaint failed to state any claims on which relief could be granted.

On July 28, 2021, a trial court denied North Carolina’s motion to dismiss, and allowed the suit to proceed.

While that was not an insignificant action, when dealing with novel issues such as those addressed in the CCA suit, what happens at the trial level means far less than what is decided when the trial court’s decision is, inevitably, appealed.  So appellate briefs were duly filed, arguments were made, and on September 6, 2022, the North Carolina Court of Appeals unanimously upheld the trial court’s decision.

That was a much more impoortant action, made more so by the fact that, a few days ago, the state decided not to appeal the matter to the North Carolina Supreme Court, presumably because it felt that the Court of Appeals' decision was well-reasoned, and was unlikely to be overturned.

With the purely legal arguments out of the way, and the law of the case firmly established, a trial will now be held on the merits, in which the CCA will have to prove the allegations made in its complaint.  That won’t be a cakewalk, but some language in the Court of Appeals decision suggests a clear path forward for the plaintiffs.  More specifically, the court wrote, in part, that

“…Article XIV Sec. 5 was added to our State Constitution in 1972 and states: ‘[i]t shall be the policy of this State to conserve and protect its lands and waters for the benefit of all its citizenry…’  Our Court interpreted this amendment…as tasking the State with a constitutional duty to not only protect the public lands, but also the public trust rights attached thereto. 

“Plaintiffs alleged the State breached this constitutional duty by ‘mismanaging North Carolina’s coastal fisheries resources.’  Specifically, Plaintiffs alleged the State has mismanaged the fisheries by ‘permitting, sanctioning, and even protecting two methods of harvesting coastal finfish and shrimp in its State public waters’—shrimp trawling and ‘unattended’ gillnetting—‘that result in enormous resource wastage[;]’ ‘refusing to address and remedy chronic overfishing of several species of fish[;]’ and, ‘tolerating a lack of reporting of any harvest by the majority of commercial license holders for more than a decade.’  Plaintiffs alleged ‘the State’s mismanagement of coastal fisheries resources…has eliminated or, at a minimum, severely curtailed the public’s right to fish for [popular fish species]…’  Thus, the alleged facts here support Plaintiffs’ contention that the State did not protect the harvestable fish population ‘for the benefit of all its citizenry.’  [citations omitted]”

The court also stated that

“Section 38 was added to Article I of our State Constitution in 2018 by amendment proposed by legislative initiation and adopted by popular vote.  It states:

The right of the people to hunt, fish, and harvest wildlife is a valued part of the State’s heritage and shall be forever preserved for the public good.  The people have a right, including the right to use traditional methods, to hunt, fish, and harvest wildlife, subject only to laws enacted by the General Assembly and rules adopted pursuant to authority granted by the General Assembly to (i) promote wildlife conservation and management and (ii) preserve the future of hunting and fishing…

“The state contends the language of this provision places no affirmative constitutional mandate on the State to preserve the right of the people to hunt, fish, and harvest wildlife for the public good.  We disagree.  ‘In interpreting our Constitution—as in interpreting a statute—where the meaning is clear from the words used, we will not search for a meaning elsewhere.’  ‘The plain meaning of words may be’ construed by reference to standard, nonlegal dictionaries… 

“The first sentence of Section 38 makes clear the right to fish belongs to the people.  Moreover, its inclusion in Article I indicates the General Assembly intended for this right to be protected against encroachment by the State.  Indeed, this right is ‘subject only to laws…and rules…to (i) promote wildlife conservation and management and (ii) to preserve the future of…fishing.’

“The plain meaning of the next phrase in the first sentence ‘shall be forever preserved’ places an affirmative duty on the State to protect the people’s right to fish.  ‘Shall’ means ‘has a duty to’ or ‘must’ and imposes ‘imperative or mandatory’ obligations on the party to which ‘shall’ applies.  Forever, means ‘for a limitless time.’  ‘Preserve’ means ‘to keep safe from injury, harm or destruction.’  Thus, the plain meaning of the phrase indicates the General Assembly, when drafting the proposed amendment, intended to create an affirmative duty on the State to preserve the right of the people to fish and harvest fish.  However, the right to fish and harvest fish would be meaningless without access to fish.  Therefore, the State’s duty necessarily includes some concomitant duty to keep fisheries safe from injury, harm, or destruction for all time  [emphasis added; citations omitted]”

Such language suggests that, in order to prevail in their lawsuit, the plaintiffs must first prove that North Carolina’s fish stocks have been harmed—something that the seem very able to do—and that the State of North Carolina has somehow failed to meet its constitutional obligation to prevent such harm.

That might be a bit trickier.

The plaintiffs will undoubtedly point to trawling within North Carolina’s bays, the use of unattended gill nets, and other allegedly inappropriate fishery management measures as evidence of North Carolina’s failures.  However, once the case goes to trial, merely alleging that state regulations caused, or at least did not prevent, harm to fisheries resources.  Plaintiffs must be able to prove, probably by a preponderance of the evidence (although some other evidentiary standard might apply), that such is the case; mere appeals to common sense, unsupported by data, will not get the job done.

North Carolina will undoubtedly challenge the plaintiffs’ allegations and evidence, and will almost certainly present evidence supporting its approach to fishery management.  The issues of scientific and management uncertainty will undoubtedly arise.  

While it’s very easy to second-guess fishery managers when their preferred measures fail to maintain a healthy stock, it’s far more difficult to devise measures that will both maintain stock health and allow a reasonable level of commercial and recreational harvest.  North Carolina will probably claim that, based on the data available, it did its best to maintain healthy fish stocks, but simply fell victim to the uncertainty inherent in the management process.

North Carolina might also maintain that it did what it could to protect and manage fish stocks, but that its efforts were frustrated by events that occurred outside its jurisdiction. 

While it might, for example, be able to manage its own Roanoke/Albemarle stock of striped bass, its loss of what was once a vital winter striped bass fishery for the coastal migratory stock was due to warming waters pushing both the bass and their forage farther offshore, while also allowing the bass to remain farther to the north, and not any failure of state fishery managers.

On the other hand, the decline in southern flounder abundance might well be laid on North Carolina’s doorstep.  The state released a stock assessment update in 2019, which admits that

“Model estimates of [fishing mortality] for the U.S South Atlantic coast are largely a function of the commercial fishery operating in North Carolina, which has generated considerable landings (1,000 to 2,000 metric tons annually) for nearly three decades,”

and also describes a path that would lead to the stock’s recovery:

“To reach the [spawning stock biomass] target by 2028, fishing mortality would need to be lowered to 0.18…and total catch would need to be reduced by 72%...All projections are associated with probabilities of 50%.”

When the state recognizes both a major contributor to the problem and the likely solution, it’s difficult for it to argue that the southern flounder issue can’t be fixed—although, even in that case, the assessment update acknowledges many unknowns related to other state’s fisheries, which could impact flounder abundance in North Carolina, and to the movements of a segment of the adult population.

Thus, the ultimate fate of the CCA lawsuit cannot be predicted.  Yet it’s interesting to ask the question:  What if the plaintiffs prevail?

The impact on North Carolina will be clear—if the state loses, it will be forced to embark on a much more aggressive, and far more conservative, fishery management program, which will be required to rebuild depleted fish stocks, and to manage all state fish stocks for long-term sustainability.

Elsewhere, any impacts will be less predictable, but could still be profound.

North Carolina is the only state defendant, and the court's decision in the matter will be based on the North Carolina Constitution and North Carolina law.  It will be binding authority only with respect to that state.  However, depending on how it is worded, the decision could also become persuasive authority—that is, precedent which isn’t binding on a court, but might be cited by attorneys litigating a similar matter, when binding precedent is lacking in the relevant state—elsewhere.

The constitutional provision guaranteeing people’s right to hunt, fish, and harvest wildlife isn’t unique to North Carolina; such measures were heavily promoted by the National Rifle Association a few years ago, and have made their way into other states’ constitutions.  The North Carolina Court of Appeals decision, with respect to the meaning of such provision, could already constitute persuasive authority there.

More broadly, any final decision in the matter could make its way into debates about the scope of states’ responsibilities under the public trust doctrine, and whether such doctrine not only requires states to guarantee the public right to fish in coastal waters, but also to guarantee that those waters will hold enough fish to make angling worthwhile.  

Coupling such a legal theory with existing state statutes--for example, with something like section 13-105 of New York’s Environmental Conservation Law, which opens with the statement that

“It is the policy of this state that the primary principle in managing the state’s marine fisheries resources is to maintain the long-term health and abundance of marine fisheries resources and their habitats, and to ensure that the resources are sustained in usable abundance and diversity for future generations,”

could yield some very important victories for conservation advocates.

But that sort of speculation belongs to the future.  Before we can start thinking about how to apply the North Carolina court’s decision in the CCA lawsuit to other situations in different jurisdictions, the court—and likely one or more appellate courts—first needs to decide the case.

But from what has been decided so far, in the interlocutory appeal, there is a fair chance that the decision, once handed down, will represent a win for the fish.

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