On August 17, 2026, a
Superior Court judge in Wake County, North Carolina found that, in
managing its marine fisheries, North Carolina “has failed to meet its
‘obligation to manage and protect fisheries for the benefit of the general
public’ as required under the public trust doctrine, failed to ‘keep fisheries
safe from injury, harm, or destruction for all time’ as required under [the
North Carolina state constitution], and failed to ‘protect the harvestable fish
population for the benefit of all its citizenry’ as [also] required under [the
state constitution].”
The decision was handed down in the matter of Coastal
Conservation Association v. State of North Carolina, a lawsuit filed
in 2020, but not heard until early 2026. Since the suit began, North
Carolina has filed various motions seeking to keep the matter from going to
trial, and has taken appeals to a higher court when its motions were denied.
However, all of the state’s efforts to defeat the plaintiffs on procedural
grounds failed, and in January 2026, the trial finally began.
The
initial phase of the trial lasted for five weeks, and involved
extensive testimony from expert witnesses, state officials, and recreational
fishermen. Its sole purpose was to determine whether the state was liable to
the public for its failures to maintain healthy stocks of marine fish.
The court decided that it was.
In reaching its decision, the court made over 300 findings
of fact, including findings that
Most North Carolina citizens who are shore-based anglers have
limited boat access or no boat access, and for that reason, they have
historically depended on certain readily accessible, mostly estuarine finfish
species. Those species include Atlantic croaker, blue crab, Eastern oyster,
flounder of various species, hard clam, kingfishes (sea mullet), red drum,
river herring, spot, spotted seatrout, striped bass, and weakfish…
In the 1960s and 1970s, sought-after fish like spot, Atlantic
croaker, weakfish, and flounder were highly abundant. Recreational anglers with
little experience could harvest dozens of weakfish in a single day on the
Pamlico Sound, stock their freezers on vacation trips, catch flounder from
docks along the banks of the sound, and harvest enough Atlantic croaker for
neighborhood fish fries.
In the 1970s, however, commercial finfish landings increased
dramatically. Between 1972 and 1981 alone, commercial finfish landings
increased from 40 million pounds to over 90 million pounds…
Commercial finfish landings then began a precipitous decline
in the late 1970s and early 1980s. Today, they are half what they were in the
early 1970s. [citations omitted]
Those findings are of critical importance, as they go to the
heart of the case—the argument that North Carolina has an obligation to manage
marine fish stocks for the benefit of the general public, and the argument that
a provision of the North Carolina state constitution, adopted in 2018, granted
individuals a
constitutionally-guaranteed right to hunt, fish, and harvest wildlife.
In 2022, the North Carolina Court of Appeals upheld the
trial court’s ruling against the state’s motion to dismiss the lawsuit. The
appellate court’s decision said, in part, that “the State contends
that the language of this [constitutional] 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.”
Instead, the court found that the right to harvest fish
would be meaningless unless the state managed fish stocks for long-term
sustainability, saying “[T]he 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 rendered 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.”
While much of the court’s decision focused on the public
trust and constitutional issues, it also found that the state failed to meet
its statutory obligations to manage marine fish stocks pursuant to the
Fisheries Reform Act, which was adopted by the North Carolina General
Assembly in 1997, and requires that the state’s fisheries be managed for
“long-term viability.”
The court decision notes that Katherine Rawls, the North
Carolina Department of Marine Fisheries’ Fisheries Director, stated on the
record that “long-term viability is the standard” for the state’s management of
marine fisheries, and that long-term viability “means more than just
sustainable harvest.” Other state witnesses supported her assertions, and none
disagreed.
Experienced fisheries scientists, who served as expert
witnesses, also supported Ms. Rawls’ statements.
The court found that, in 2017, North Carolina established a
set of criteria for whether a fish stock was viable. “Those viability criteria
required that a stock cannot be overfished, that overfishing of the stock
cannot be occurring, and that the stock must exhibit the following: stable or
increasing trends in average length and weight, stable catch per unit effort,
stable spawning stock biomass, stable juvenile abundance indexes based on
historical averages, stable age structure that includes representatives of the
older age classes, and stable or declining trends in fishing mortality.”
The court also noted that when plaintiffs, during the course
of pre-trial discovery, served an interrogatory on the state, asking which
North Carolina-managed fish stocks exhibit long-term viability, the state
proved evasive, only replying that it “makes no contention regarding whether
any of the species listed exhibit long-term viability.”
However, Dr. Louis Daniel, who worked for the North Carolina
Department of Marine Fisheries for 21 years, served as the state’s Marine
Fisheries Director from 2007 to 2016, and appeared as an expert witness for the
plaintiffs, testified that of the 13 stocks managed by North Carolina, five
were overfished, one is experiencing overfishing, and the status of the other
seven is unknown; thus none of them could be said to exhibit long-term
viability under the criteria established in 2017. Dr. Daniel’s testimony then
went a step further, when he said that after having the Fisheries Reform Act in
place for nearly 30 years, “we haven’t got a success…and we haven’t rebuilt any
stocks.”
For eight days of the five-week trial, plaintiffs experts
testified as to how North Carolina’s marine fisheries management failed to
achieve long-term viability for any species, failed to rebuild overfished
stocks, failed to end overfishing, failed to get bycatch under control, and
failed to provide adequate fisheries law enforcement. The court noted that
North Carolina failed to rebut such expert testimony. Moreover, the court found
that “In contrast, the State did not present any expert who testified as to the
sufficiency of the State’s management at the system level (i.e., the agency
level or commission level)…Instead, the State took an unusual approach: Rather
than retain independent, qualified, outside experts in fisheries management,
the State simply designated seven of its DMF employee fact witnesses as
experts, then sought to elicit various expert conclusions from them about their
employer.”
Given such an approach, it might not be surprising that the
court found in plaintiffs’ favor. However, the state’s decision not to rebut
the plaintiffs’ experts’ testimony with its own expert witnesses has elicited
criticism from members of the commercial fishing community.
Although the plaintiffs’ core argument was that North
Carolina failed to properly manage its marine fisheries, the focus of that
argument was that the state failed to properly regulate its commercial, rather
than its recreational, fisheries. Shrimp trawling within the Pamlico Sound, and
what the plaintiffs considered underregulated gill net fisheries, along with
the bycatch and dead discards such fisheries allegedly produce, were the
targets of particular criticism.
Dr. Daniel, in a report provided by him as an expert
witness, noted that North Carolina “allow[s] commercial gears that have been
prohibited in other jurisdictions because of their extraordinarily high levels
of bycatch,” singling out estuarine shrimp trawling and gillnets. That led the
court to find, “That allowance has created a management problem virtually unique
to North Carolina, making the State’s disregard of the high number of discards
from those gears highly risk-prone and contrary to sound management
principles.”
Commercial fishing interests thus felt targeted by the
lawsuit, but without anyone to advocate for their interests in the matter. The
North Carolina Fisheries Association (NCFA), the commercial industry’s primary
trade organization, sought
to intervene in the action as a defendant, but its motion to do so was
denied by the court, making it impossible for the association to present
witnesses or brief issues of concern to the state’s commercial fishermen.
The denial of that motion, coupled with North Carolina’s
apparent unwillingness, or perhaps inability, to rebut the plaintiffs’ expert
witnesses, left some commercial fishermen questioning the fairness of the
process. One
fisherman, posting on Facebook, complained that
the State appears to have mounted a defense so inadequate
that the judge repeatedly describes important parts of CCA’s case as
‘unrebutted,’ ‘uncontested,’ or met with ‘no evidence to the contrary.’
Meanwhile, the commercial fishermen, seafood businesses and working waterfronts
that may actually bear the consequences were not permitted to be parties
defending their own interests…
And where was the serious defense of the other side? Where
was the history of declining commercial effort, decades of increased
regulations and gear improvements, natural boom-and-bust cycles, recreational
mortality, habitat loss, water quality, development and environmental change?
Where was the challenge to treating declining commercial landings as if they
were simply a graph of declining fish abundance? …
Who actually defended North Carolina’s commercial fishermen
and North Carolina seafood consumers who depend on them?
Fairness is always subjective, and the commercial
fishermen’s perception of inequity doesn’t necessarily mean that anything
unfair occurred, but people’s perceptions will undoubtedly affect how they
approach the next steps of the process.
In this case, the next step is the “remedy” phase of the
trial.
Now that the court has established liability, it has given
the parties 45 days to prepare a report intended to help the court craft a
remedy for the state’s failure to properly manage its fisheries. The plaintiffs
are seeking a permanent injunction requiring North Carolina to take
corrective actions to rebuild its fisheries and ensure their long-term
viability. Restrictions, and possibly even a ban, on shrimp trawling in North
Carolina’s estuaries, strict regulation of gill net fisheries, hard-poundage
annual catch limits, and increased data collection requirements are all likely
to be considered.
State officials are expected to ask the court to craft
a compromise remedy that allows fish stocks to rebuild without
threatening the livelihoods of commercial fishermen and radically reshaping the
state’s commercial fishing industry. Although commercial fishing practices are
targeted in the lawsuit, whatever remedy the court ultimately imposes will
probably also have a significant impact on recreational fishermen, as it would
be very difficult to rebuild depleted fish stocks unless additional
restrictions are placed on both the commercial and recreational sectors.
So far, the
state has not issued a formal response to the court’s decision, so it
is not clear whether it will accept the finding of liability, or whether it
will seek to have the Court of Appeals overturn the decision. However, if an
appellate court upholds the trial court’s findings, or if the state chooses not
to appeal, the decision in Coastal Conservation Association v. State of
North Carolina is likely to have a profound impact on how North
Carolina manages its marine fisheries.
The decision’s impacts outside of North Carolina aren’t as
clear.
Coastal Conservation Association v. State of North
Carolina probably represents the first time that a court anywhere in
the nation has found that the public trust
doctrine—the principle that the government holds certain natural resources
in trust, maintaining and protecting them on behalf of the public as a whole—creates
an affirmative duty for the state to maintain marine fish stocks at
healthy and sustainable levels. While the decision isn’t binding on courts
outside of North Carolina, it does constitute a persuasive precedent that
courts in other states could choose to follow if they found its logic
compelling.
If other states adopt similar interpretations of the public
trust doctrine, it could usher in a new era of fisheries management, in which
states could no longer ignore overfished stocks and chronic overfishing, but
instead would be held responsible for the state of their marine fish
populations.
At the same time, the court’s decision was very North
Carolina-specific, as it was heavily reliant on a section of the state
constitution which created a right to hunt, fish, and harvest wildlife, as well
as on the language of North Carolina’s Fisheries Reform Act. While at
least nine coastal states have, over the past twenty years, added
language to their state constitutions that created a right to hunt, fish, and
harvest wildlife, arguably making the decision’s constitutional basis relevant
to those states as well, the Fisheries Reform Act is unique to North Carolina,
rendering those sections of the decision that relate to that statute, including
the long-term viability standard, unique to North Carolina as well.
Thus, the court’s finding that North Carolina is legally
obligated to manage its marine fish stocks for the benefit of the general
public is only an intermediate step in the campaign to improve the state’s
saltwater fisheries management program.
Should the decision not be overturned on appeal, and should
the court be willing to impose a remedy that will materially improve North
Carolina’s approach to marine fisheries management, Coastal
Conservation Association v. State of North Carolina will, at the
least, lead to better fisheries management outcomes in a state with a long
history and deep traditions of commercial and recreational fishing.
Should courts in other states follow the precedent set by
the North Carolina court, then Coastal Conservation Association v.
State of North Carolina may earn its place as a landmark decision that
changed the course of saltwater fisheries management in multiple jurisdictions.
It is far too early to know what the final legacy of this
lawsuit will be, but it is not too early to hope that Coastal
Conservation Association v. State of North Carolina will go far to
change the management status quo, not only in North Carolina, but on every
coast of the United States.
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This essay first appeared in “From the Waterfront,” the blog
of the Marine Fish Conservation Network, which can be found at http://conservefish.org/blog/.
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