Does the NC Wildlife Resources Commission have authority to adopt a rule designating 'critical habitat' for endangered, threatened, and special concern species, even though the statute does not specifically use that term?

Plain-English summary

Richard Hamilton, on behalf of the NC Wildlife Resources Commission (WRC), asked the AG whether the Commission had authority to adopt a rule establishing definitions and procedures for designating "critical habitat" for endangered, threatened, and special-concern species. The proposed rule was substantively new for NC, even though the federal Endangered Species Act has had critical-habitat designation as a core tool for decades. Senior Deputy AG Ann Reed and Associate AG Virginia A. Gibbons said yes.

The analysis had three parts: express statutory authority, implied statutory authority, and the carve-out in G.S. 113-332 for landholder rights.

1. Express authority. Article 25 of Chapter 113 ("Endangered and Threatened Wildlife and Wildlife Species of Special Concern") is the basic source. G.S. 113-333 gives the WRC five enumerated powers and duties, including: adopt and publish an endangered, threatened, and special concern species list (113-334); reconsider and revise the lists; coordinate development and implementation of conservation programs for those species; adopt regulations necessary to implement conservation programs and to limit, regulate, or prevent taking, collecting, or selling protected animals; and conduct investigations.

The key tied to critical habitat is the conservation-program coordination authority. G.S. 113-331(1) defines "conservation" and "conserve" expansively: "the use and application of all methods, procedures and biological information for the purpose of bringing populations of native and once native species of wildlife in balance with the optimum carrying capacity of their habitat, and maintaining such balance. These methods and procedures include all activities associated with scientific resource management such as research; census; law enforcement, and habitat protection, acquisition, and enhancement." (Emphasis added.)

Read together, the WRC is authorized to coordinate conservation programs using all scientific resource management activities, including specifically habitat protection, acquisition, and enhancement. Critical habitat designation logically falls within "habitat protection." The statutory term "habitat" is not restricted to public lands or game lands.

G.S. 113-334 lists criteria and procedures for placing animals on protected lists. Threatened destruction or curtailment of habitat is one of the criteria, indicating the legislature recognized habitat destruction as a primary cause of species decline and habitat protection as a logical response.

G.S. 113-336(5) lets the Nongame Advisory Committee "[r]ecommend critical habitat areas for protection or acquisition." That a statutorily-created committee is explicitly tasked with recommending critical habitat strongly implies the WRC has authority to designate it. Authority here is not limited to state-owned or game lands.

Article 25 has no separate provision spelling out critical-habitat designation, but reading the sections in pari materia (Valentine v. Gill, Comr. of Revenue, 223 N.C. 396 (1943); all parts of a statute on the same subject construed together), the action is among those the legislature anticipated.

2. Implied authority. The AG layered in the general administrative-law rule that where a statute requires an end, it authorizes the appropriate means. "There is therefore conferred by implication every power proper and necessary to the exercise of the powers and duties expressly given and imposed." (1 Am. Jur. 2d, Administrative Law § 44.) The express policy of Article 25 is for WRC to protect and conserve endangered and special-concern wildlife and develop conservation techniques and programs to do so. The proposed rule does not exceed that mandate. So implied power supports the explicit power.

3. Landholder rights carve-out in G.S. 113-332. This was the harder question. G.S. 113-332 declares the legislative purpose to protect endangered and special-concern wildlife but adds: "however, nothing in this Article shall be construed to limit the rights of a landholder in the management of his lands for agriculture, forestry, development or any other lawful purpose without his consent."

Opponents of the proposed rule pushed a literal reading: nothing in Article 25 may limit landholder rights without consent. Read literally, that clause would gut the article. Conservation would be limited to public lands or symbolic gestures.

The AG construed the clause harmoniously. Tabor v. Ward, 83 N.C. 291 (1880), and State ex rel. Hunt v. N.C. Reinsurance Facility, 302 N.C. 274 (1981), require courts to give effect to every part of a statute and avoid readings that nullify the whole act. The AG read § 113-332 as a no-takings clause: Article 25 authorizes no action that amounts to an unconstitutional taking of a landowner's property. The construction sits in harmony with existing real property law and still gives effect to the article.

The general principle that government can regulate private land in ways that may have adverse impacts is well-established, limited only by the constitutional takings prohibition. Whether designation alone amounts to a taking is beyond the scope of the opinion, but the AG was clear that the mere designation of land as "Critical Habitat" would not be a taking. Whether specific regulations enacted pursuant to the designation amount to a taking depends on those regulations and would have to be answered case by case.

Summary. Article 25, read as a whole, gives the WRC express and implied authority to designate critical habitat and coordinate, develop, and implement management and conservation programs for designated areas. Specific actions under those programs might exceed WRC authority or amount to a taking, but those determinations come case by case.

Currency note

This opinion was issued in 1994. 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.

Article 25 of Chapter 113 has been amended since 1994; specific sections may have been renumbered or substantively changed. The federal Endangered Species Act has been amended and interpreted by many post-1994 cases including major regulatory takings doctrine cases. Anyone with a current question about NC critical habitat designation or related landowner rights should consult current Chapter 113 Article 25, current WRC rules, current Endangered Species Act case law, and counsel familiar with environmental and takings law.

Common questions

Q: What is "critical habitat"?
A: A geographic area essential to the conservation of a listed species. The concept comes from federal Endangered Species Act practice. Designation triggers procedural and substantive obligations on agencies and (under some regulatory schemes) on private landowners proposing activities in the designated area.

Q: Why didn't Article 25 just say "critical habitat" if it meant that?
A: Article 25 was drafted before "critical habitat" became a term of art in federal practice and uses the broader language of "habitat protection, acquisition, and enhancement." The AG's reading is that the broader language fairly encompasses the more specific tool. Statutes do not have to enumerate every implementing technique; they can grant general authority that supports specific tools as they develop.

Q: What does the landholder rights carve-out actually protect?
A: Under the AG's reading, it protects landowners against actions that would amount to unconstitutional takings. The clause is a no-takings limit, not a blanket exemption of all private land from any conservation rule. So a designation by itself does not "limit" a landowner's rights in the takings sense, and most regulations short of physical invasion or total economic deprivation are sustainable.

Q: Does designation reduce a property's value?
A: It can, by making development or certain agricultural uses more legally complicated. Whether any specific drop in value supports a takings claim depends on factors the Penn Central test addresses: economic impact, interference with reasonable investment-backed expectations, and the character of the government action. The 1994 opinion does not resolve those questions; it just says designation alone is not a taking.

Q: Can private landowners challenge a critical habitat designation?
A: Yes. Landowners can challenge through the rulemaking process (commenting during the proposed rule period) and through judicial review of the final rule under the APA. They can also challenge specific applications of the designation, especially if those applications work like de facto takings.

Q: How does state critical habitat designation interact with federal designation?
A: They are parallel programs. A species might be federally listed with federally-designated critical habitat, state-listed with state-designated critical habitat, or both. The federal and state schemes have different scope, different procedural requirements, and different remedies. Practitioners must consider both layers when advising on activities in or near designated habitat.

Background and statutory framework

NC's endangered and threatened species framework lives in Article 25 of Chapter 113. The article was enacted to give the state its own tools to protect species, beyond what federal law covers. The Wildlife Resources Commission is the lead agency, with input from the Nongame Advisory Committee. The article relies on lists (endangered, threatened, special concern) and conservation programs that the WRC develops.

The federal Endangered Species Act has used "critical habitat" as a central regulatory concept since 1973. NC's state framework, when written, did not use the specific term but did use functionally similar language ("habitat protection, acquisition, and enhancement"). The 1994 opinion bridges that gap, holding that the broader state language supports the federal-style tool.

The opinion is also a useful illustration of how AGs handle apparently sweeping carve-outs in environmental statutes. A literal reading of the landholder-rights clause would have eviscerated Article 25. The AG's harmonizing reading (the clause is a no-takings limit, not a blanket exemption) preserves both legislative purposes: the protection of endangered species and the protection of private property rights.

Citations

• N.C.G.S. § 113-331(1) (definition of "conservation" and "conserve"; expressly includes "habitat protection, acquisition, and enhancement")
• N.C.G.S. § 113-332 (legislative findings on endangered species; carve-out for landholder rights without consent)
• N.C.G.S. § 113-333 (WRC powers and duties; list maintenance, conservation program coordination, rulemaking, investigations)
• N.C.G.S. § 113-334 (criteria and procedures for listing protected species; threatened habitat destruction as listing criterion)
• N.C.G.S. § 113-336(5) (Nongame Advisory Committee may recommend critical habitat areas for protection or acquisition)
• Valentine v. Gill, Comr. of Revenue, 223 N.C. 396 (1943) (NC Supreme Court; statutes on same subject matter construed in pari materia)
• United Steelworkers of America, AFL-CIO v. N.L.R.B., 390 F.2d 846 (D.C. Cir. 1967), cert. denied, 391 U.S. 904 (1968) (D.C. Circuit; implied powers necessary to effect express grant)
• Tabor v. Ward, 83 N.C. 291 (1880) (NC Supreme Court; statutory construction giving effect to all parts)
• State ex rel. Hunt v. N.C. Reinsurance Facility, 302 N.C. 274 (1981) (NC Supreme Court; resolve ambiguity to effectuate true legislative intent)
• Stevenson v. City of Durham, 281 N.C. 300, 303 (1972) (NC Supreme Court; statutory purpose indicated by language, spirit, and what the act seeks to accomplish)

Source

• Landing page: https://ncdoj.gov/opinions/establishing-definitions-procedures-for-designation-of-critical-habitat/

Original opinion text

The fetched body opens at the outline of three issues. The salutation and addressee block were not in the available extract; the following reproduces what the source page returned.

• Express statutory authority;
• Implied statutory authority; and
• Restrictions imposed by G.S. § 113-332.

1. Express Statutory Authority

Article 25 of the North Carolina General Statutes, entitled, "Endangered and Threatened Wildlife and Wildlife Species of Special Concern" (hereinafter "the article"), contains the primary statutory authority for the proposed rule. There is other legislation, both state and federal, that may impact actions taken by the WRC pursuant to the proposed rule, but it is Article 25 that provides the basic foundation for the WRC's authority to act.

The powers and duties of the WRC as set out in G.S. § 113-333 are:

(1) To adopt and publish an endangered species list, a threatened species list, and a list of species of special concern, as provided for in G.S. § 113-334, identifying each entry by its scientific and common name; (2) To reconsider and revise the lists from time to time in response to public proposals or as the Commission deems necessary; (3) To coordinate development and implementation of conservation programs for endangered and threatened species of wild animals and for species of special concern; (4) To adopt regulations necessary to implement conservation programs for endangered, threatened, and special concern species and to limit, regulate, or prevent the taking, collection, or sale of protected animals; (5) To conduct investigations to determine whether a wild animal should be on a protected animal list and to determine the requirements for survival of resident wild animal species. G.S. § 113-333.

The WRC is thus given the power and responsibility to coordinate development and implementation of conservation programs. The statutory definition of "conservation" and "conserve" is "[T]he use and application of all methods, procedures and biological information for the purpose of bringing populations of native and once native species of wildlife in balance with the optimum carrying capacity of their habitat, and maintaining such balance. These methods and procedures include all activities associated with scientific resource management such as research; census; law enforcement, and habitat protection, acquisition, and enhancement." (Emphasis added.) G.S. § 113-331(1).

Read together, these sections explicitly authorize the WRC to coordinate development and implementation of conservation programs utilizing all activities associated with scientific resource management. Habitat protection, acquisition and enhancement are specifically set out as activities that are authorized for restoring and maintaining populations of threatened, endangered and special concern wildlife species. The designation of critical habitat and the subsequent activities logically fall within the term "habitat protection." It should also be noted that "habitat" as used in the statute is not restricted to public lands or game lands.

G.S. § 113-334 lists the criteria and procedures for placing animals on protected animal lists. Threatened destruction or curtailment of habitat is included as one of the criteria to be used in listing a species, indicating that the legislature recognized habitat destruction or curtailment as one of the primary factors that often threatens a species' survival, and that habitat protection will logically be one of the measures utilized to protect and restore the species.

The Nongame Advisory Committee created by the statute is charged with advising the WRC on matters related to nongame wildlife, including, among other things, the development of conservation programs for endangered, threatened and special concern wildlife species. The committee is also empowered to "[r]ecommend critical habitat areas for protection or acquisition." G.S. § 113-336(5). This clearly implies that the WRC has the authority to designate critical habitat as a part of the development of conservation programs for threatened, endangered and special concern species. Again, it is significant to note that this authority is not limited to state-owned or game lands.

It is true that the article contains no discrete provision that specifically addresses the designation of critical habitat. When one reads the disparate sections of the statute, however, it appears that this action was clearly among those anticipated by the legislature. It has long been held by the courts of this state that all parts of a statute dealing with the same subject matter are to be considered in pari materia to give effect to the whole and to give effect to the intent of the legislation. Valentine v. Gill, Comr. of Revenue, 223 N.C. 396 (1943).

2. Implied Statutory Authority

In addition to the express provisions discussed above, one may reasonably assume that the statute contains certain implied powers that may not be specifically enumerated. In the construction of a grant of powers, it is a general principle of law that where the end is required, the appropriate means are given and that every grant of power carries with it the use of necessary and lawful means for its effective execution. There is therefore conferred by implication every power proper and necessary to the exercise of the powers and duties expressly given and imposed. 1 Am. Jur. 2d, Administrative Law, § 44, p. 846 (1962). It is the express policy and intent of the legislature in its grant of jurisdiction to the WRC that it act to protect and conserve wildlife that is endangered and of special concern and to develop conservation techniques and programs for this purpose. The proposed rule does not exceed this mandate, and it is therefore reasonable to assume that the WRC has both those powers explicitly set out in the statute and also those that may be reasonably implied as inherent in the underlying policies of the statute. United Steelworkers of America, AFL-CIO v. N.L.R.B., 390 F.2d 846 (D.C. Cir. 1967), cert. denied sub nom., 391 U.S. 904 (1968).

3. Restrictions Imposed by G.S. § 113-332

G.S. § 113-332 sets out legislative intent regarding endangered species of wild animals and wild animals of special concern. In pertinent part it reads:

The General Assembly finds that the recreation and aesthetic needs of the people, the interests of science, the quality of the environment, and the best interests of the State require that endangered and threatened species of wild animals and wild animals of special concern be protected and conserved, that their numbers should be enhanced and that conservation techniques be developed for them; however, nothing in this Article shall be construed to limit the rights of a landholder in the management of his lands for agriculture, forestry, development or any other lawful purpose without his consent. G.S. § 113-332.

Opponents of the proposed rule urge a literal interpretation of the last sentence. Such a reading would render the article largely ineffective for the purposes stated in the basic Declaration of Policy. Conservation measures would be limited to measures affecting public lands or to symbolic gestures. It is our opinion that this clause is more properly construed to mean that the article authorizes no action that would amount to an unconstitutional "taking" of a landowner's property. This construction is in harmony with existing real property law and still gives effect to the article. Where the construction of one section of a statute according to the letter will make it repugnant to another part and neutralize the whole act, such interpretations may be adopted which will give effect to each part of the act and relieve it from inconsistency. Tabor v. Ward, 83 N.C. 291 (1880). All parts of the same statute dealing with the same subject are to be construed as a whole and every part must be given effect if this can be done by any fair and reasonable interpretation so that none of its provisions shall be rendered useless or redundant. Any irreconcilable ambiguity in meaning must be resolved in the manner which most fully effectuates the true legislative intent. State ex rel. Hunt v. N.C. Reinsurance Facility, 302 N.C. 274 (1981). The best indicia of that legislative purpose are "the language of the statute, the spirit of the act, and what the act seeks to accomplish." Stevenson v. City of Durham, 281 N.C. 300, 303 (1972).

The power of the government to regulate the use of private property in ways that may have adverse impacts upon landowners has long been established and accepted. This power is limited by the constitutional prohibition against action that rises to the level of a "taking." An examination of what would constitute a taking in the context of the proposed rule is beyond the scope of this opinion. It is clear, however, that the mere designation of land as "Critical Habitat" would not amount to a taking. Whether or not the specific regulations enacted pursuant to that designation amount to a taking can only be answered in the context of those regulations as proposed.

In summary, it is our opinion that Article 25, read as a whole, gives the Commission the authority, express and implied, to designate critical habitat and to coordinate, develop and implement management and conservation programs pursuant to the designation. This is not to say that specific actions recommended as a part of some management and conservation programs may not exceed the authority or jurisdiction of the WRC or the participating agency, but this determination must be made on a case by case basis as the programs are developed.

We trust that this fully answers your questions. Please do not hesitate to contact us if we can be of any further assistance in this matter.

Ann Reed
Senior Deputy Attorney General

Virginia A. Gibbons
Associate Attorney General