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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