During the state fisheries license moratorium, was the Marine Fisheries Commission allowed to adopt a new rule expanding the area in Dare County where commercial menhaden purse seine fishing is restricted?
Plain-English summary
North Carolina's General Assembly enacted a moratorium on new commercial fishing licenses in the early 1990s as part of a broader effort to study and reform the state's marine fisheries management. While the moratorium was in effect, the Marine Fisheries Commission's rulemaking authority was sharply restricted. Session Laws 1993 (Reg. Sess., 1994), c. 576, sec. 4 limited the Commission to regulating commercial and recreational harvest only through measures that:
- prevent further endangerment of the resources;
- involve user conflicts; or
- are necessary to maintain state control of the fishery to avoid federal management authority.
Outside those three categories, the Commission had to wait until the legislature lifted the moratorium and decided the larger reform questions before proceeding.
In September 1995, the Commission proposed a rule expanding the area in Dare County where commercial purse-seine fishing for menhaden was restricted. Representative Jean Preston asked the AG whether that rule was within the narrowed authority.
The AG answered yes. The Commission had considered each proposed rule separately, debated which of the three statutory bases applied, and documented its finding. For the menhaden rule, the Commission found a user conflict: commercial purse seines operating close to shore reduce shallow-water fish populations that recreational fishermen pursue, and the purse-seine operation itself disrupts recreational fishing during peak months. The Town of Southern Shores' September 5, 1995 resolution supporting the restriction documented the conflict from the local-government perspective. The proposed rule expanded an existing restricted-area boundary to cover Southern Shores. The AG found a reasonable factual basis for the user-conflict finding, and concluded that the rule was within the Commission's residual moratorium-era authority. The AG also found the area restriction non-discriminatory among properly licensed fishermen and free from constitutional problems.
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 license moratorium has long since ended, and the Marine Fisheries Commission's authority is now governed by the post-moratorium statutory framework and current regulations adopted under the Coastal and Estuarine Resources Act, the Fisheries Reform Act of 1997, and the Marine Fisheries Statutes (N.C. Gen. Stat. ch. 113, art. 14, art. 14A, and related). Current menhaden management may also be subject to interstate compact arrangements and federal Atlantic States Marine Fisheries Commission requirements that did not exist in their present form in 1995.
Background and statutory framework
The 1994 license moratorium and the surrounding fisheries-reform debate were a response to several decades of growing tension between commercial and recreational fishing interests, declining stocks of certain species, and federal pressure on state fisheries management. The legislature wanted to pause new commercial-license issuance long enough to commission studies, hold hearings, and design a longer-term statutory reform package.
But pausing licenses also meant pausing routine commercial-fishery rulemaking, which the legislature recognized would create gaps in fisheries protection. The three permitted bases in c. 576, sec. 4 reflected a triage: the Commission could still act to prevent biological collapse (basis 1), to resolve disputes between user groups (basis 2), and to keep federal regulators from taking over the state's management role (basis 3).
The user-conflict basis was the broadest of the three and the one most likely to be invoked in moratorium-era rulemaking. North Carolina's coastal waters had multiple long-running disputes between commercial and recreational fishermen over net-fishing locations, gear types, and seasonal restrictions. Menhaden purse-seining off the Outer Banks was a recurring flashpoint; the large purse-seine vessels harvested huge volumes of menhaden close to shore, and recreational fishermen complained that the harvest reduced the bait-fish populations on which game fish depended, and that the seine operations physically interfered with surf fishing and small-boat fishing.
The Commission's procedural approach (separate consideration of each rule, on-the-record debate, an explicit finding of which moratorium-era basis applied) was the AG's primary check that the Commission was not using the moratorium-era authority as a loophole. The AG asked whether there was a reasonable factual basis for the user-conflict finding, citing the Southern Shores resolution and the broader public-record evidence of close-in commercial fishing affecting recreational fishing. The standard was deferential but not toothless: the Commission had to articulate which statutory basis applied and could not just label any rule as a user-conflict matter without record support.
Common questions
Did "user conflict" mean any disagreement between commercial and recreational fishermen?
No, the standard required a reasonable factual basis for the finding, not just an assertion. The Commission had to document the conflict, typically with local-government resolutions, public-comment records, biological data, or other evidence that two user groups were materially in conflict over the same fishery. The Southern Shores resolution and the broader Dare County public record gave the menhaden rule that kind of factual support.
Could the Commission have adopted the same rule outside the moratorium?
Probably yes, under its general fisheries-management authority. The moratorium narrowed the Commission's authority but did not eliminate any of its existing rulemaking powers; it just channeled them. A rule that fit one of the three moratorium-era bases was permissible during the moratorium and after; a rule that did not fit any of the three was suspended until the moratorium ended.
Did the rule treat commercial menhaden fishermen unfairly compared to other commercial users?
The AG specifically noted that the area restriction did not discriminate among properly licensed fishermen. The rule banned a specific gear (purse seines) in a specific area (close to Southern Shores) for everyone, not just for certain fishermen. The non-discrimination check was part of confirming the rule was within the Commission's authority and free from constitutional equal-protection or due-process problems.
What kind of constitutional issue could a menhaden rule raise?
The opinion checked for state and federal constitutional concerns but found none. The realistic candidates would be due process (was the rule arbitrary?), equal protection (did it pick winners among similarly situated fishermen?), and possibly an interstate commerce or federal-preemption issue if the rule affected interstate fishing. None applied here, in the AG's view, because the rule rested on a reasonable factual basis, applied uniformly to commercial purse-seine operations, and stayed within state-water jurisdiction.
Source
- Landing page: https://ncdoj.gov/opinions/marine-fisheries-commission-rulemaking-during-license-moratorium/
Citations
- 1993 N.C. Sess. Laws (Reg. Sess., 1994), ch. 576, sec. 4
Original opinion text
November 9, 1995
The Honorable Jean Preston
House of Representatives
211 Pompano Drive
Emerald Isle, North Carolina 28594
Re: Advisory Opinion: Marine Fisheries Commission Rulemaking During License Moratorium; Session Laws 1993 (Reg. Sess., 1994), c. 576, s.4.
Dear Representative Preston:
You have asked this Office to review the text of the proposed rules being sent to public hearing and the procedures followed by the Marine Fisheries Commission at its September, 1995 meeting, for compliance with the statutory restrictions on the Commission's authority to regulate and control the harvest of fish during the current license moratorium. The pertinent statute provides that
"[d]uring the moratorium, the Marine Fisheries Commission shall be limited in the exercise of its existing authority to regulate and control the commercial and recreational harvest of marine fisheries resources to measures: (i) that prevent further endangerment of the resources; (ii) that involve user conflicts; or (iii) that are necessary to maintain State control of its fishery resources in order to avoid the exercise of federal fishery management authority over those resources." Session Laws 1993 (Reg. Sess., 1994), c. 576, s.4
The Commission considered each proposed rule separately, and debated and determined in regular session which of the three criteria applied and provided the basis for proceeding to rulemaking. The Commission found the proposed rule enlarging the area in Dare County where fishing for menhaden with purse seines is restricted involves a conflict between commercial and recreational fishermen. The September 5, 1995 resolution of the Town of Southern Shores supporting the menhaden fishing restriction expressed the common belief that close-in commercial fishing operations reduce for some period of time the number of shallow-water fish species sought by recreational fishermen, and also disrupt and interfere with recreational fishing during the months when this activity is at its peak. Furthermore, the proposed rule which extends the restricted area to Southern Shores is an amendment to the original rule that previously designated restricted fishing areas in Dare County. The Commission found a user conflict presently exists and thus was statutorily permitted to exercise its rulemaking and regulatory authority. Based on our review of the materials considered and discussed by the Commission, there exists a reasonable factual basis for the Commission's determination that the proposed rule addresses an area of user conflict. In our opinion, the current and proposed rules are within the statutory authority of the Commission to reasonably regulate the menhaden fishery and the area restriction does not discriminate among those fishermen properly licensed to participate in the fishery.
It appears the Commission followed the proper statutory guidance, and appropriately exercised its judgment to initiate rulemaking for each of the proposed rules approved for public hearing and comment at the September meeting. Lastly, the current and proposed rules for restricting the harvest of menhaden off the Dare County beaches do not appear to raise issues concerning the provisions of the United States Constitution or North Carolina Constitution.
We hope this is responsive to your questions. Please contact Frank Crawley if you feel clarification is necessary.
Daniel C. Oakley
Senior Deputy Attorney General
Francis W. Crawley
Special Deputy Attorney General