Can North Carolina coastal counties and towns pass their own ordinances regulating commercial and recreational fishing in their waters, or did the General Assembly take that power away?

Plain-English summary

Representative Robert Grady asked the AG's office for a review of the history of local coastal fishing laws in North Carolina. Senior Deputy AG Edwin M. Speas, Jr. and Special Deputy AG Daniel F. McLawhorn delivered a compact history that turned on a single statute, N.C.G.S. § 113-133.

Before 1965, the General Assembly had regularly adopted local coastal fishing laws, with different counties and towns operating under their own customized rules for commercial fishing seasons, gear restrictions, and the like. That patchwork created enforcement complications and inconsistencies. The 1965 General Assembly responded with Chapter 957 of the 1965 Session Laws, a major rewrite of the state's coastal fishing law. Section 2 of that chapter repealed all special, local, and private acts and ordinances regulating the conservation of marine and estuarine resources, and codified the preemption rule as § 113-133.

The statute's language stated the policy directly: "The enjoyment of the marine and estuarine resources of the State belongs to the people of the State as a whole and is not properly the subject of local regulation." The Department (now the Department of Environment, Health and Natural Resources, with the Marine Fisheries Commission under it) was charged with reconciling the competing interests of commercial fishermen, recreational users, and conservation, and given the discretion to continue, modify, or abolish previously local rules through statewide regulation.

Section 3 of the 1965 chapter made the policy explicit by recognizing that the rewrite "omit[ted]" many particular provisions "in order to leave the matter within the discretionary power of the [Fisheries Commission]." That left the Commission, rather than local governments or the General Assembly, as the primary rule-maker for coastal fisheries.

A 1971 AG opinion to Clifton L. Moore, Jr. confirmed that local governments have no authority to regulate the subjects covered by the Marine Fisheries statutes in Chapter 113. The legislature occupied the field and precluded the exercise of local ordinance power over marine and estuarine resources.

The 1965 rewrite drew a sharp contrast with the wildlife laws, where N.C.G.S. § 113-133.1 continued to authorize local wildlife regulations. So coastal counties could enact some local wildlife rules (subject to state oversight) but could not enact any local coastal fishing rules.

The opinion closed with two important caveats. First, the 1965 General Assembly's strong policy statement against local coastal fishing laws does not bind future legislatures. Under State v. Wall (1967), one General Assembly cannot restrict or limit the constitutional power of a succeeding legislature. So the 2000 or 2010 or 2020 General Assembly could theoretically enact a local coastal fishing law if it chose to.

Second, even if the General Assembly enacted a new local coastal fishing law, that law would face an additional state-constitutional hurdle: Article II, Section 24 of the North Carolina Constitution limits the legislature's authority to enact local, private, and special legislation in various subject areas. Each proposed local coastal fishing bill would have to be separately examined to see whether Article II, Section 24 would block it.

The AG declined to render a categorical judgment on whether any future local coastal fishing law would survive Article II, Section 24, because the answer would turn on the specific bill's content and on the substantive subject area implicated.

Currency note

This opinion was issued in 1993. 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. The Marine Fisheries Commission rule-making framework has been substantially developed and amended since 1993, and the structure of the Department of Environment, Health and Natural Resources has changed multiple times. Anyone advising on current coastal fishing rules should verify the present statute and the Marine Fisheries Commission's current regulations.

Background and statutory framework

North Carolina has one of the longest coastlines on the Atlantic seaboard, with extensive estuarine systems including Pamlico Sound, Albemarle Sound, Currituck Sound, and the smaller sounds and bays. The state's commercial fishing industry has historically been a major economic force, especially in the central and southern coastal counties. Recreational fishing and tourism related to coastal waters became increasingly important from the mid-twentieth century onward.

Until 1965, the General Assembly had managed coastal fishing through a thicket of local and special acts. A particular county might allow gill nets in a specific sound during specific months while a neighboring county banned them. Some inlets had unique gear restrictions imposed by their local commercial fishing communities through their state legislators. The result was that an enforcement officer working the entire coast had to keep track of dozens of distinct local rules, and a commercial fisherman moving along the coast had to know which rules applied at each stop.

The 1965 rewrite reflected a different policy theory: marine and estuarine resources are public-trust resources belonging to the entire state, and their management is a statewide, scientific, and technical matter best handled by a single state agency with biological and ecological expertise. The Fisheries Commission (later folded into a larger department) was the natural body to do that work, with rule-making authority that could vary regulations by region within the state's overall regulatory framework.

The statute's preservation of local authority over "subjects other than the conservation of marine and estuarine resources" was a careful drafting choice. It meant that a coastal town could still enact ordinances on things like boat parking, beach access, building setbacks, and similar land-use matters that incidentally affected fishing activity. The line was between local regulation of the resource itself (preempted) and local regulation of activities that happen near or on top of the resource for non-conservation reasons (still allowed).

State v. Wall, the case the AG cited at the end of the opinion, is a basic principle of legislative supremacy. Each General Assembly is sovereign within its constitutional limits and cannot be bound by prior General Assemblies. A statute declaring that "local coastal fishing laws are abolished forever" would not bind a future legislature that wanted to enact one. So § 113-133's broad declaration is best understood as the policy of the 1965 General Assembly (and every subsequent General Assembly that has chosen not to repeal it), not as a permanent constitutional bar.

The Article II, Section 24 limit on local legislation is a different beast. That constitutional provision genuinely binds the General Assembly: even with the legislative will to enact a local coastal fishing law, the legislature could not validly do so if the subject fell within one of the constitutional limitations. Article II, Section 24 lists specific subjects on which local, private, or special acts are forbidden, with detailed exceptions. Coastal fishing is not on the express prohibition list, but the relationship between fishing regulation and other listed subjects (regulation of trade, regulation of fishing in inland waters, public ground) could potentially trigger one of the limitations.

Common questions

Could a coastal town pass an ordinance setting a local commercial fishing season different from the state season?

No. That would regulate the conservation of marine and estuarine resources, which N.C.G.S. § 113-133 expressly preempts. Only the Marine Fisheries Commission can set seasons.

What about an ordinance regulating boat parking at a public boat ramp?

Yes, probably. That is a parking and land-use matter, not a conservation matter. The statute expressly preserves local authority over subjects other than the conservation of marine and estuarine resources.

Could a county pass an ordinance banning the discharge of pollutants into a sound?

That depends on the specific subject matter. Some water-pollution authority is preempted by state environmental statutes outside Chapter 113, and the state's Coastal Area Management Act regulates coastal development. A general nuisance or trespass ordinance might survive; a coastal-fisheries conservation ordinance would not.

Could the General Assembly bring back local coastal fishing laws if it wanted to?

In principle yes, but each such bill would face the Article II, Section 24 limit on local legislation. The 1965 statute's policy declaration does not bind future legislatures.

What does the Fisheries Commission do with the discretion the 1965 law gave it?

The Commission adopts statewide rules that vary by region to accommodate different ecological and economic conditions. Those rules effectively replaced the patchwork of pre-1965 local acts. Local commercial fishing communities now influence policy through the Commission's rulemaking process, not through local legislation.

Citations

• N.C. Gen. Stat. § 113-133 (abolition of local coastal fishing laws)
• N.C. Gen. Stat. § 113-133.1 (contrast: local wildlife laws preserved)
• N.C. Const. art. II, § 24 (limits on local legislation)
• 1965 N.C. Sess. Laws ch. 957, §§ 2, 3 (rewrite of coastal fisheries law)
• State v. Wall, 271 N.C. 675 (1967)
• Opinion of Attorney General to Mr. Clifton L. Moore, Jr., 41 N.C.A.G. 642 (1971)

Source

• Landing page: https://ncdoj.gov/opinions/local-coastal-fishing-laws/

Original opinion text

| TO: | Representative Robert Grady |
| FROM: | Edwin M. Speas, Jr. Senior Deputy Attorney General |
| Daniel F. McLawhorn Special Deputy Attorney General | |
| DATE: | July 2, 1993 |
| SUBJECT: | Advisory Opinion; Local Coastal Fishing Laws; G.S. 113-133 |

In a recent conversation you asked that this office review the history of local coastal fishing laws for you.

The General Assembly adopted a major rewrite of coastal fishing law in 1965. Prior to that time, the legislature had regularly adopted local coastal fishing laws. In 1965, all such laws were repealed. N.C.G.S. § 113-133.

§ 113-133. Abolition of local coastal fishing laws.

The enjoyment of the marine and estuarine resources of the State belongs to the people of the State as a whole and is not properly the subject of local regulation. As the Department is charged with administering the governing statutes and adopting rules in a manner to reconcile as equitably as may be the various competing interests of the people as regards these resources, considering the interests of those whose livelihood depends upon full and wise use of renewable and nonrenewable resources and also the interests of the many whose approach is recreational, all special, local, and private acts and ordinances regulating the conservation of marine and estuarine resources are repealed. Nothing in this section is intended to invalidate local legislation or local ordinances which exercise valid powers over subjects other than the conservation of marine and estuarine resources, even though an incidental effect may consist of an overlapping or conflict of jurisdiction as to some particular provision not essential to the conservation objectives set out in this Subchapter. (1965, c. 957, s. 2; 1987, c. 827, s. 96.)

That statute should be compared to N.C.G.S. § 113-133.1, in which local wildlife laws continue to be authorized. To the best of our knowledge, the General Assembly has not adopted any local coastal fishing laws since 1965. Rather, the General Assembly has limited amendments to the coastal fishing laws to general, public laws applicable uniformly throughout the State.

In uncodified parts of Chapter 957 of the 1965 Session Laws, the General Assembly made clear its intention to "continue and broaden the powers and authority of the Department of [Environment, Health and Natural Resources]... with respect to all matters pertaining to the conservation of fisheries resources." It vested in the Department the discretion to continue, modify, or abolish any previous prohibition encompassed in a repealed local fishing law through the passage of regulations. "In numerous instances particular provisions contained in the former law are omitted from this codification in order to leave the matter within the discretionary power of the [Fisheries Commission]." Chapter 957, § 3 (1965 Session Laws).

Relying on G.S. § 113-133, the Attorney General issued an opinion in 1971 holding that local governments have no authority to regulate the subjects covered by the Marine Fisheries statutes in Chapter 113. The legislature has occupied the field and precluded the exercise of local ordinance power over marine and estuarine resources. Opinion of Attorney General to Mr. Clifton L. Moore, Jr., 41 N.C.A.G. 642 (1971).

Despite the strong statement of the 1965 legislature against local coastal fishing laws, N.C.G.S. § 113-133 is not a bar to future enactments of local coastal fishing laws by the General Assembly. One General Assembly cannot restrict or limit the constitutional power of a succeeding legislature. State v. Wall, 271 N.C. 675, 157 S.E.2d 363 (1967). However, any such act may be barred by Article II, Section 24 of the Constitution of North Carolina. Each local coastal fishing law or bill would have to be separately examined to determine whether constitutional limitations on legislative power are a bar to its enactment.