When two state agencies regulate the same waters and adopt directly conflicting fishing rules, which one wins?

Plain-English summary

In early 1995, the NC Marine Fisheries Commission adopted a closed season for blueback herring, alewife, American shad, and hickory shad. From April 15 to January 1, taking any of these by any method was unlawful (15A NCAC 3M.0513). The NC Wildlife Resources Commission, meanwhile, had a long-standing rule treating shad as a non-game fish with year-round open hook-and-line fishing in inland waters (15A NCAC 10C.0401(a)).

The problem lived in joint fishing waters, which the legislature defines (G.S. § 113-132(e)) as coastal waters containing significant freshwater fish populations and where the two commissions have agreed to exercise concurrent jurisdiction. Both rules technically applied. Major Doug Freeman of the Marine Patrol wrote the AG to ask which one his officers should enforce.

Senior Deputy AG Daniel C. Oakley and Special Deputy AG J. Allen Jernigan answered with the unsatisfying truth: both rules were effective and neither superseded the other. They walked through the joint-rules architecture in 15A NCAC subchapter 3Q to make the point.

3Q.0106(a) says coastal-fishing laws and MFC regulations apply in joint waters "except as otherwise provided." 3Q.0106(b) gives the WRC authority to enforce certain inland fishing laws in joint waters (game fish, license requirements, hook-and-line rules) "except as hereinafter provided." Neither paragraph confers exclusive jurisdiction. Where the two commissions wanted exclusive authority for one of them, they said so explicitly: 3Q.0107 says the special striped bass joint rules "supersede any inconsistent rules"; 3Q.0109 gives WRC exclusive authority to open and close striped bass seasons in the Roanoke River and MFC exclusive authority in Albemarle Sound. The shad rules had no parallel exclusivity language.

The legal effect: both rules are legally in force in joint waters. A Marine Patrol officer who catches someone taking shad by hook-and-line in joint waters during the closed season can issue a citation under 3M.0513. But a District Court judge faced with the WRC's facially-conflicting open season has a ready basis to dismiss. The AG was candid: "while the closed season remains in force and citations may be issued for violations, as a practical matter prosecution will be difficult in the face of the WRC's conflicting rule."

Two fixes existed. First, G.S. § 113-132(d) establishes the inter-agency resolution mechanism: the two commissions can agree on harmonization, and if they cannot agree, the Governor resolves it. G.S. § 143B-289.11 carries the same structure. Second, the MFC could amend 3M.0513 to align with the WRC's rule, though normal notice and hearing under G.S. § 150B-21.1 would be required because the situation did not qualify for temporary rulemaking.

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. NC fisheries regulation has been substantially revised since 1995, including reorganization under the Department of Environment and Natural Resources (DENR) and later DEQ, and the shad management regime has evolved considerably to address declining stocks.

Background and statutory framework

Two commissions, one fish. Shad are anadromous: they live in salt water and migrate up rivers to spawn. Coastal regulation falls to the MFC under G.S. § 113-132(a) and § 113-182. Inland regulation falls to the WRC under G.S. § 113-132(b) and § 113-136(c)(3). Joint waters fall in between, with concurrent jurisdiction by statute.

The joint-rules subchapter (15A NCAC 3Q). Subchapter 3Q is the negotiated treaty between the two commissions. 3Q.0101 frames the purpose: jurisdictional allocation, enforcement, and special joint-water rules. 3Q.0106 sets the default applicability: MFC rules apply unless otherwise provided; WRC rules apply for the categories listed.

The striped bass precedent. The two commissions had already fought over migratory species. The striped bass conflict produced 3Q.0107 (express supersession of inconsistent rules) and 3Q.0109 (exclusive authority to open and close seasons by water body). These were the express grants of exclusivity. The shad rules had nothing analogous.

The conflict-resolution mechanism. G.S. § 113-132(d) gives the two commissions tools to harmonize: inter-agency agreements, or gubernatorial resolution if no agreement. G.S. § 143B-289.11 reinforces the same structure.

Why citations stay valid (technically). A rule remains in force until amended or repealed, even if a sister agency's rule contradicts it. So 3M.0513 was still law. The practical problem was at the prosecution stage, where a defense lawyer could point to 10C.0401(a) and challenge the basis for conviction.

Temporary rulemaking is unavailable. G.S. § 150B-21.1 lets agencies adopt temporary rules without full notice-and-hearing only in specific emergency circumstances. The shad rule conflict did not fit the temporary-rule criteria, so the MFC could not move quickly through a temporary fix.

Common questions

Q: What did the Marine Patrol actually do after this opinion?

A: The opinion did not direct enforcement policy. In practice, agencies in this situation tend to scale back active enforcement of the contested rule and prioritize inter-agency negotiation.

Q: Could a court invalidate one of the rules?

A: A court hearing a citation under 3M.0513 could find the rule unenforceable in joint waters because of the WRC's conflicting rule. The opinion did not opine on the validity of either rule.

Q: Did the MFC adopt the closed season to address conservation concerns about shad?

A: The opinion does not document the substantive rationale. Anadromous shad populations along the Atlantic coast had been declining for decades, which often drives season closures.

Q: How are 'joint fishing waters' defined?

A: G.S. § 113-132(e) defines them as coastal fishing waters with significant freshwater fish populations, as agreed upon by the two commissions. The designation lasts as long as both commissions maintain joint rules.

Q: What other species had a similar jurisdiction problem?

A: Striped bass had the same problem a decade earlier, and the resolution produced the express joint rules in 3Q.0107 and 3Q.0109. The opinion suggests the legislature and the two commissions had developed a workable model.

Q: Could the Governor really resolve a regulatory dispute between two commissions?

A: G.S. § 113-132(d) expressly says so. Whether and how the Governor would exercise that power in practice is a separate question.

Citations from the opinion

• N.C.G.S. §§ 113-132, 113-132(a)-(e); 113-136(c)(3); 113-182; 143B-289.11; 150B-21.1
• 15A N.C. Admin. Code 3M.0513; 3Q.0101; 3Q.0104; 3Q.0106; 3Q.0107; 3Q.0109; 10C.0301; 10C.0401(a)

Source

• Landing page: https://ncdoj.gov/opinions/closure-of-shad-season/

Original opinion text

QUESTION PRESENTED: Does 15A N.C. Admin. Code §10C.0401(a), the WRC's rule allowing year-round taking of shad by hook and line, supersede the closed season for shad adopted by the MFC in joint waters, by operation of 15A N.C. Admin. Code §3Q.0106?

ANSWER: No. Both rules are effective, as the two commissions have overlapping, concurrent jurisdiction in joint waters. However, the conflict between the MFC rule, 15A N.C. Admin. Code §3M.0513, and the WRC rule, 15A N.C. Admin. Code § 10C.401(a), creates a significant problem for the N.C. Marine Patrol in enforcement of the season closure.

DISCUSSION

The WRC has authority to regulate hook-and-line fishing for shad in inland fishing waters under N.C.G.S. §§113-132(b), and 113-136(c)(3). The WRC classifies shad as a non-game fish (see 15A N.C. Admin. Code §10C.0301), for which it has established a year-round open season for hook-and-line fishing in inland waters. 15A N.C. Admin. Code §10C.0401(a). Similarly, the MFC has regulatory jurisdiction over the taking of shad in coastal waters, including hook-and-line fishing, per N.C.G.S. §§113-132(a) and 113-182. The MFC recently adopted a closed hook-and-line season for shad in 15A N.C. Admin. Code §3M.0513, which was effective March 1, 1995. The MFC rule provides:

It is unlawful to take blueback herring, alewife, American shad and hickory shad by any method from April 15 through January 1. (Emphasis added.)

The conflict between the two rules arises only in joint fishing waters, which are defined as coastal fishing waters "in which there are found a significant number of freshwater fish, as agreed upon by the Marine Fisheries Commission and Wildlife Resources Commission…." N.C.G.S. §113-132(e). The joint waters designation remains effective for so long as each commission maintains its joint rules. To the extent that the jurisdiction of the MFC and the WRC overlap in joint waters, the legislature has granted them concurrent jurisdiction, and empowered them to make joint rules delimiting the scope of their respective authority. N.C.G.S. §113-132(d). This is the source of the WRC's jurisdiction in joint waters. As joint fishing waters are coastal fishing waters in which the two commissions have agreed to exercise joint regulatory authority, the MFC's jurisdiction remains in place in those waters, unless expressly ceded to the WRC by the joint rules. The MFC and WRC have adopted joint rules in 15A N.C. Admin. Code 3Q. We examine those joint rules to determine the extent to which, if any, the MFC has relinquished its jurisdiction over shad in joint waters.

In 15A N.C. Admin. Code §3Q.0101, the two Commissions set forth the "Scope and Purpose" of the joint rules, as follows: In addition to the classification of the waters of the state these joint rules set forth guidelines to determine which fishing activities in joint waters are regulated by the Marine Fisheries Commission and which are regulated by the WRC. Finally, the joint rules set forth special fishing regulations applicable in joint waters that can be enforced by officers of the Division of Marine Fisheries and the Wildlife Resources Commission. These regulations do not affect the jurisdiction of the Marine Fisheries Commission and the Wildlife Resources Commission in any matters other than those specifically set out. (Emphasis added.)

In 15A N.C. Admin. Code §3Q.0104 the joint rules provide that, "[t]he regulation and licensing of fishing in joint waters shall be as stated in 15A NCAC 3Q .0106." 15A N.C. Admin. Code §3Q.0106, captioned "Applicability of Rules: Joint Waters" states:

(a) All coastal fishing laws and regulations administered by the Department of Environment, Health, and Natural Resources and the Marine Fisheries Commission apply to joint waters except as otherwise provided, and shall be enforced by fisheries enforcement officers.

(b) The following inland fishing laws and regulations administered by the Wildlife Resources Commission apply to joint waters and shall be enforced by wildlife enforcement officers:

(1) all laws and regulations pertaining to inland game fishes,

(2) all laws and regulations pertaining to inland fishing license requirements for hook and line fishing,

(3) all laws and regulations pertaining to hook and line fishing except as hereinafter provided. (Emphasis added.)

Paragraph (a) establishes that coastal fishing laws, and regulations adopted by the MFC for coastal waters, remain effective in joint waters, "except as otherwise provided." Thus it is necessary to look to the joint rules for any which "otherwise provide" that the MFC's rule closing the hook-and-line season for shad in coastal waters does not apply to joint waters. Paragraph (b) operates as a limited grant of jurisdiction to the WRC to enforce in joint waters the inland fishing laws and regulations specified in subparagraphs (b)(1), (b)(2) and (b)(3). The words "except as hereinafter provided" in subparagraph (b)(3) refer only to the joint rules which follow that provision (i.e., the remainder of subchapter 3Q). However, none of those rules address hook-and-line fishing for shad in joint waters. Instead, they pertain principally to another migratory saltwater fish, striped bass, which was the subject of similar conflict a decade ago. The present joint rules evolved from that controversy, as in the absence of such joint rules resolving the jurisdictional conflict, a migratory saltwater fish is subject to regulation by both commissions in joint waters. Under .0106(b)(3) the WRC's year-round open season for taking shad by hook-and-line fishing in inland waters also applies in joint waters.

Significantly, while § .0106(b) provides that certain types of inland fishing rules apply to joint waters, it does not state that the WRC's rules apply exclusively, so as to oust MFC jurisdiction over migratory saltwater fish. Where the joint rules intend to supersede inconsistent rules, or to grant exclusive jurisdiction to one commission, the rules expressly state that intent. See 15A N.C. Admin. Code §3Q.0107 (special striped bass rules for joint waters "supersede any inconsistent rules of the Marine Fisheries Commission or the Wildlife Resources Commission that would otherwise be applicable in joint waters under the provisions of 15A NCAC 3Q .0106"). That joint rule clearly contemplates that inconsistent rules could be applicable to joint waters under §3Q.0106. Likewise, §3Q.0109 expressly confers "exclusive authority" to open and close seasons for striped bass to WRC for Roanoke River and MFC for Albemarle Sound, regardless of classification. Thus it would be improper to read §3Q.0106 as vesting the WRC with exclusive jurisdiction over hook-and-line fishing for shad in joint waters, absent such an express statement of intent.

The Legislature, in creating the present regulatory scheme, recognized that conflicts may occur from time to time between the commissions, and established in N.C.G.S. §113-132(d) a mechanism for resolving such conflicts. The statute provides:

(d) To the extent that the grant of jurisdiction to the Marine Fisheries Commission and the Wildlife Resources Commission may overlap, the Marine Fisheries Commission and the Wildlife Resources Commission are granted concurrent jurisdiction. In cases of conflict between actions taken or regulations promulgated by either agency, as respects the activities of the other, pursuant to the dominant purpose of such jurisdiction, the Marine Fisheries Commission and the Wildlife Resources Commission are empowered to make agreements concerning the harmonious settlement of such conflict in the best interests of the conservation of the marine and estuarine and wildlife resources of the State. In the event the Marine Fisheries Commission and the Wildlife Resources Commission cannot agree, the Governor is empowered to resolve the differences. (Emphasis added.)

N.C.G.S. §143B-289.11 contains substantially similar provisions. Thus the MFC has the option of proceeding under this provision by reaching an agreement with WRC regarding the shad closure, or sending the matter to the Governor for resolution.

A second option is a rule change to make the MFC's shad season consistent with the WRC's. This would require public notice and hearing, as the requirements in N.C.G.S. §150B-21.1 for adoption of a temporary rule are absent.

Ultimately, this situation confronts the Marine Patrol with a serious enforcement dilemma. While the closed season remains in force and citations may be issued for violations, as a practical matter prosecution will be difficult in the face of the WRC's conflicting rule.

Thank you for your inquiry. Please advise if we may be of further assistance.

Daniel C. Oakley, Senior Deputy Attorney General

J. Allen Jernigan, Special Deputy Attorney General