If North Carolina formally withdrew from the Atlantic States Marine Fisheries Commission compact, would the state still have to follow the Commission's fishery management plans for striped bass, summer flounder, weakfish, and other coastal species? And would the state lose any voting rights?

NC Withdrawal from ASMFC Would Lose Voting Rights but Not Exempt NC from Federal Coastal Fisheries Act (NC AG, April 7, 1995)

Plain-English summary

In the mid-1990s, NC fisheries policy was contentious. The Atlantic States Marine Fisheries Commission, a 15-state compact, had adopted increasingly restrictive management plans for species like striped bass, summer flounder, weakfish, and bluefish. NC commercial fishermen and some state legislators argued that the Commission's quotas were biased against NC and that the state should withdraw from the compact. The Marine Fisheries Commission asked the AG what would actually happen if NC withdrew.

The AG's answer was a careful split: NC would lose its voting rights on the Commission but would still be bound by the Commission's plans under federal law. The reasoning:

1. The compact itself was a voluntary state-to-state arrangement. The ASMFC was created in 1942 by an interstate compact (approved by Congress under 16 U.S.C. § 667a). Each state's membership rested on its own enabling statute. NC's was N.C.G.S. § 113-252. If NC repealed § 113-252, NC would no longer be a compacting state. The rights and powers under the compact (three NC delegates, voting on Commission actions, participation in plan development) would all be lost.

2. But Congress had separately delegated regulatory power to ASMFC through federal statutes, and those statutes applied to all Atlantic coastal states. Two federal laws were critical:
   - The Atlantic Striped Bass Conservation Act (1984, P.L. 98-613, as amended) required ASMFC to establish striped bass management plans and required Atlantic coastal states to implement and enforce them, on pain of federal closure of noncompliant state fisheries.
   - The Atlantic Coastal Fisheries Cooperative Management Act (1993, P.L. 103-465, codified at 16 U.S.C. § 5101 et seq.) extended that model to coastal fisheries generally. Section 803(13), 16 U.S.C. § 5102(13), defined "State" to mean "Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, Florida, the District of Columbia, or the Potomac River Fisheries Commission."

3. The federal definition of "State" was broader than the ASMFC membership. Congress did not condition the Act's coverage on continued compact membership. The Act applied to all coastal jurisdictions with coastal fishery resources, period. So withdrawing from the compact would not remove NC from the Act's coverage.

4. Congressional findings reinforced that reading. Section 5101(a)(5)-(6) declared that "the failure by one or more Atlantic States to fully implement a coastal fishery management plan can affect the status of Atlantic coastal fisheries, and can discourage other States from fully implementing coastal fishery management plans," and that "it is in the national interest to provide for more effective Atlantic State fishery resource conservation and management." If withdrawal could exempt a state from the Act, that policy goal would be defeated. Congress would not have written a national-interest statute whose protections could be evaded by repealing one state-law section.

The practical upshot for NC: withdrawal would be all cost, no benefit. NC would lose the ability to vote on, influence, or amend the Commission's plans, but it would still be required to implement and enforce them. NC noncompliance would trigger federal closure of the relevant NC fishery, just as it would for any other Atlantic coastal state.

Currency note

This opinion was issued in 1995. 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 federal Atlantic Coastal Fisheries Cooperative Management Act has been amended since 1995, and the ASMFC's plan-development and enforcement process has evolved. NC has not withdrawn from the compact. A current question about NC's options should be analyzed under current federal and state law.

Background and statutory framework

The Atlantic States Marine Fisheries Commission was created in 1942 by an interstate compact between coastal states from Maine to Florida. Congress consented to the compact in the Fish and Wildlife Coordination Act amendments of that year (16 U.S.C. § 667a). The compact was a creature of state law: each state's participation rested on its own enabling statute, and the compact's substantive powers derived from the agreement among the states. NC enacted Article 19 of Chapter 113 of the General Statutes in 1949. Under N.C.G.S. § 113-252, NC was authorized to become a Commission member effective upon any two other Atlantic coast states joining. By 1995, the ASMFC had 15 member states.

The original compact gave the Commission limited powers. The Commission's actions were essentially recommendations. Each state retained sovereign authority to adopt or reject Commission plans for application within its own waters and to its own fishermen. A state could ignore the Commission's recommendations with no direct federal consequence.

That changed in the 1980s. Atlantic striped bass populations had collapsed by the early 1980s, and the ASMFC's voluntary management plan was not getting traction. In 1984, Congress passed the Atlantic Striped Bass Conservation Act (P.L. 98-613, amended in 1986 and 1988). The Act required ASMFC to develop a binding striped bass management plan, required each affected state to implement and enforce the plan, and authorized the Secretary of Commerce to close the striped bass fishery in a noncompliant state's waters. The federal-closure remedy gave the Commission's plans real teeth for the first time.

In 1993, Congress extended that model across Atlantic coastal fisheries generally with the Atlantic Coastal Fisheries Cooperative Management Act (P.L. 103-465, codified at 16 U.S.C. § 5101 et seq.). The Act made three structural moves:

1. It tasked ASMFC with developing coastal fishery management plans for species under its jurisdiction (striped bass, weakfish, summer flounder, scup, black sea bass, bluefish, croaker, spot, Spanish mackerel, and others).

2. It required affected coastal states to implement and enforce the plans. "Implementation" meant adopting state regulations consistent with the plan. "Enforcement" meant prosecuting violations.

3. It empowered the Secretary of Commerce (through NOAA) to close a noncompliant state's fishery. If a state failed to implement or enforce a plan, the federal government could shut down that state's commercial and recreational take of the affected species.

Critically, the Act defined "State" in § 5102(13) by enumerating all Atlantic coastal jurisdictions: Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, Florida, the District of Columbia, and the Potomac River Fisheries Commission. The enumeration did not condition coverage on ASMFC membership. Whether or not a state was a Commission member, it was a "State" under the Act if it appeared on this list.

The 1995 question asked the AG to think through what would happen if NC withdrew from the compact. The AG's analysis worked in three layers.

Layer 1: compact-based powers. NC's compact-based rights all flowed from N.C.G.S. § 113-252 and the underlying compact agreement. Repealing the NC enabling statute would eliminate NC's three-delegate representation, NC's vote on Commission actions, NC's participation in plan-development negotiations, and NC's other compact-based rights. The AG noted this followed from straightforward contract-and-compact principles: a state that exits a voluntary state-to-state agreement loses its rights under that agreement.

Layer 2: federal-statutory obligations. The federal Acts (Striped Bass and Coastal Fisheries) had their own statutory architecture. They were not compact-incorporation statutes that piggybacked on the compact; they were freestanding federal regulatory statutes that delegated plan-development to the Commission and imposed implementation duties on the listed states. The Acts' definitions, findings, and enforcement provisions all spoke in terms of "States" defined by enumeration. The Commission was just the vehicle for plan development; the Commission's plans were federal law once adopted, binding on the listed states whether or not those states had a vote in their development.

Layer 3: congressional findings. The AG read the congressional findings in 16 U.S.C. § 5101(a)(5)-(6) as a textual signal that Congress intended the Acts to apply comprehensively. Subsection (5) warned that one state's failure to implement undermines the conservation effort. Subsection (6) declared a national interest in effective Atlantic state fishery management. If withdrawal could remove a state from the Acts' coverage, the conservation purpose would be defeated. Congress would not have written a statute that could be evaded by repealing a state enabling provision.

The combined effect was that NC's policy options were limited:

• Stay in. NC could continue to participate in plan development, vote on Commission actions, and try to influence the plans toward NC's interests.
• Stay in and litigate. NC could challenge specific plans as arbitrary or as inconsistent with the Acts. Litigation would not require withdrawal.
• Withdraw. NC could leave the compact but would lose voting rights and still be subject to the plans. This was the worst-of-both-worlds option.
• Lobby Congress. NC could push to amend the federal Acts. This was the only option that could actually free NC from the plans' substantive obligations.

The AG did not opine on which option was best as a policy matter. The opinion was descriptive: it answered the legal question (what would happen if NC withdrew) without advocating for or against withdrawal.

Common questions

Why couldn't NC just repeal § 113-252 and walk away?

NC could repeal § 113-252; that was a state legislative prerogative. Repeal would end NC's compact membership. But the federal Acts (Striped Bass and Coastal Fisheries) operated independently of the compact and continued to bind NC by their own terms. The state-law exit and the federal-law obligations were separate questions.

What happens if NC just refuses to implement a Commission plan after withdrawing?

The Secretary of Commerce, acting through NOAA's National Marine Fisheries Service, can close the affected fishery in NC waters. The federal closure removes NC fishermen's right to take the species commercially or recreationally and is enforceable by federal authorities. The closure would last until NC came into compliance.

Could NC challenge an ASMFC plan in court?

Yes. The Act includes administrative processes for plan development, and a state can challenge a plan as arbitrary, capricious, or inconsistent with the Act. But the challenge has to be made within the federal regulatory and judicial framework, not by unilateral state withdrawal. NC has standing to challenge plans even while remaining a Commission member.

Did this opinion address recreational vs. commercial fisheries differently?

No. The opinion was concerned with the legal structure of withdrawal, not with the substantive merits of specific plans. The Acts apply to both commercial and recreational fisheries through their general delegation to ASMFC. Specific plans can distinguish recreational from commercial allocations.

Has any state actually withdrawn from the ASMFC since this opinion?

No state has withdrawn. The AG's analysis explained why withdrawal was unattractive: a state that withdraws loses voting rights but retains obligations. That structural reality has kept the compact intact since 1942.

What happens to the Potomac River Fisheries Commission's status?

The Potomac River Fisheries Commission is a bi-state body (Maryland and Virginia) governing the Potomac. The federal Act lists it as a separate "State" under § 5102(13). This was Congress's way of including a non-state jurisdiction with coastal fishery resources. It does not affect NC's status.

Source

• Landing page: https://ncdoj.gov/opinions/effect-of-north-carolinas-withdrawal-from-the-atlantic-states-marine-fisheries-commission/

Citations

• 16 U.S.C. § 667a (compact authorization, 1942)
• 16 U.S.C. § 5101 et seq. (Atlantic Coastal Fisheries Cooperative Management Act, 1993)
• 16 U.S.C. § 5102(13) (definition of "State")
• Atlantic Striped Bass Conservation Act, P.L. 98-613 (1984), as amended P.L. 99-432 (1986), P.L. 100-589 (1988)
• N.C. Gen. Stat. § 113-252 (NC enabling statute for ASMFC compact)
• Articles III & VI, Atlantic States Marine Fisheries Compact (incorporated in N.C.G.S. § 113-252)

Original opinion text

• Whether North Carolina would legally be required to implement fisheries management plans under the Atlantic Coastal Fisheries Cooperative Management Act? and
• Whether, and to what extent, voting privileges would be eliminated or restricted at the ASMFC?

For the reasons set out below, we conclude that if North Carolina legally effects withdrawal from the ASMFC, the State would continue to have to implement ASMFC fisheries management plans, but would have no voting privileges on the Commission.

ANALYSIS

In 1942 the United States Congress, in amending the "Fish and Wildlife Coordination Act", 16 U.S.C. §§ 661 et seq., created the ASMFC, specifically granting the consent and approval of Congress to an interstate compact relating to the better utilization of the fisheries (marine, shell and anadromous) of the Atlantic seaboard. See, 16 U.S.C. § 667a, Act May 4, 1942, c. 283, §§ 14, 56 Stat. 267. The decision on whether to join the Atlantic States Marine Fisheries Compact (i.e., the Commission) was left to the individual states. In 1949, the North Carolina General Assembly enacted Article 19, "Marine Fisheries Compact and Commission", of Chapter 113 of the North Carolina General Statutes. Pursuant to N.C.G.S. § 113-252 of that Article, North Carolina was authorized to become a member of the Compact and Commission, effective immediately upon any two other Atlantic coast states formally joining the Compact. Currently, the ASMFC has fifteen member states: Connecticut, Delaware, Florida, Georgia, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, Rhode Island, South Carolina and Virginia.

The initial powers of the ASMFC were derived from the terms of the compact agreement entered into by its member states, rather than from federal law. Those powers are set out in N.C.G.S. § 113-252, and include the power to be represented on the Commission by three North Carolina delegates and to vote on all actions "by the Commission in regard to its general affairs." See, "Atlantic States Marine Fisheries Compact", Articles III & VI, N.C.G.S. § 113-252. Accordingly, it is clear that if the State repeals the relevant provisions of Article 19 of Chapter 113 of the General Statutes in order to withdraw from the ASMFC, North Carolina will no longer have any of the rights or powers concerning the Commission as set out in the Compact. That includes the right to vote on the ASMFC's adoption of fishery management plans or other Commission business.

In addition to the Commission's legal authorities derived from the terms of the Compact between member states, Congress has delegated specific powers to the Commission through the passage of two specific federal fisheries laws: (1) the Atlantic Striped Bass Conservation Act [Act Oct. 31, 1984, P.L. 98-613 §§ 1-9, 98 Stat. 3187; Oct. 1, 1986, P.L. 99-432, §§ 1-5, 100 Stat. 989, 990; Nov. 3, 1988, P.L. 100-589, §§ 1, 2, 4, 6(g), 102 Stat. 2984]; and (2) the Atlantic Coastal Fisheries Cooperative Management Act [Act Dec. 8, 1993, P.L. 103-465]. Citing the national interest in fisheries conservation and management, each federal law (1) requires the ASMFC to establish plans for the conservation and management of certain coastal fisheries, (2) requires the states to implement and enforce those plans, and (3) requires the Commission to annually monitor and review individual state compliance with the plans. In addition, both statutes adopt federal closure of the state fishery not being prosecuted in compliance with a Commission plan as the potential consequence for individual state noncompliance.

Section 803(13) of the Atlantic Coastal Fisheries Cooperative Management Act ("Act") defines the term "State" to mean "Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, Florida, the District of Columbia, or the Potomac River Fisheries Commission." 16 U.S.C. § 5102(13). By the terms of that definition, "state" is broader than just the membership of the ASMFC, i.e., the compacting states. That would appear to indicate that Congress intended plan implementation, enforcement and compliance under the Act to apply to all jurisdictions containing any "coastal fishery resource" within the meaning of the Act.

That interpretation is bolstered by reference to Congress' findings and purpose statement supporting adoption of the Act. In those findings, Congress expressly declares that

• (5) The failure by one or more Atlantic States to fully implement a coastal fishery management plan can affect the status of Atlantic coastal fisheries, and can discourage other States from fully implementing coastal fishery management plans.
• (6) It is in the national interest to provide for more effective Atlantic State fishery resource conservation and management.

16 U.S.C. § 5101(a)(5) & (6). Taken together, those conclusions indicate Congress' concern over the failure of certain coastal states to comply with ASMFC fishery conservation and management plans, and Congress' intent to remedy that failure through promulgation of the Act. Clearly, that law would provide no such remedy if a state had only to withdraw from the ASMFC in order to remove itself from the coverage of the Act.

CONCLUSION

Based on the analysis set out above, it is our belief that the Act reasonably supports only a conclusion that its requirements fully apply to all jurisdictions wherein "coastal fisheries resources" occur, and not just to Commission member states. As a result, North Carolina's withdrawal from the ASMFC would not have the result of the State no longer being subject to the terms of the Act, including its requirement that each affected state implement and enforce ASMFC fishery management plans. Instead, it would appear that the result of withdrawal from the ASMFC would be that North Carolina would be held to the terms of any Commission fishery management plans, without the benefit of voting on those plans or otherwise exercising the powers of Commission member states to influence plan development and adoption. If we can be of further assistance in this matter, please do not hesitate to contact us.

Daniel C. Oakley
Senior Deputy Attorney General

J. Allen Jernigan
Special Deputy Attorney General

Timothy D. Nifong
Assistant Attorney General