Can a NC coastal town ban state-licensed commercial fishermen from setting gill nets in canals that the state classifies as coastal fishing waters?

Plain-English summary

The Town of Ocean Isle Beach, a Brunswick County coastal community, had a problem familiar to coastal NC: canals that ran behind beachfront homes were both prime fishing spots and busy navigation corridors. Commercial gill netters used the canals to harvest finfish; homeowners and boaters complained that nets created hazards. The town's response was Section 6-6-17 of its municipal code, which banned gill nets in canals within town limits.

DENR's Preston Pate asked the AG whether the ordinance was lawful. Senior Deputy AG Daniel C. Oakley and Special Deputy AG J. Allen Jernigan said no.

The core preemption analysis ran through G.S. § 160A-174(b)(2), which provides that a city ordinance is invalid if it "makes unlawful an act, omission or condition which is expressly made lawful by State . . . law." Gill netting by licensed commercial fishermen is expressly authorized by state law. The canals are coastal fishing waters under the MFC's jurisdiction (15A NCAC 2Q.0202(4); G.S. § 113-132). State rules permit gill nets in coastal fishing waters subject to safety and conservation restrictions. The Ocean Isle Beach ordinance thus made unlawful what state law made lawful, exceeding the town's authority.

The AG drove the point home with two NC Supreme Court cases. Greene v. City of Winston-Salem, 287 N.C. 66 (1975), reaffirmed that "towns and cities are parcels of the State; their corporate powers are emanations from the State for purposes of convenience, and it could never be allowed that they should contravene the policy of the State." Tastee-Freez, Inc. v. Raleigh, 256 N.C. 208 (1962), was the on-point precedent: a city could not use a local licensing ordinance to prohibit a state-licensed mobile ice cream vendor from operating on city streets. The Ocean Isle Beach gill net ordinance was the fishing-industry analog.

G.S. § 113-133 provided an independent reason for invalidity. The 1965 statute repealed all local coastal fishing laws and declared that "[t]he enjoyment of the marine and estuarine resources of the State belongs to the people of the State as a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." A prior AG opinion (41 N.C.A.G. 642 (1971)) had read § 113-133 to vest exclusive coastal-fishing authority in the state (then the Department of Conservation and Development; now DENR and the MFC). The Ocean Isle Beach ordinance trespassed on that exclusive authority.

The AG addressed the public safety justification head-on. The MFC already regulated net placement from a safety standpoint. 15A NCAC 3J.0101 prohibited nets in any "location where it may constitute a hazard to navigation" or "[s]o as to block more than two-thirds of any natural or manmade waterway." 15A NCAC 3J.103(a) authorized the Fisheries Director to issue proclamations closing specific areas. The town had a legitimate channel for its concerns. It could petition the MFC under G.S. § 150B-20 to adopt a rule closing the Ocean Isle Beach canals to gill netting, or ask the Director for a proclamation. What it could not do was bypass the state regulatory system by passing its own ordinance.

The opinion also addressed two side issues. Private ownership of the canal beds did not insulate the area from state fisheries regulation. State v. Sutton (1905) and Bryant v. Hogarth (1997, cert. denied 1997) confirmed the state's ability to regulate fisheries on private property. And the canals fit the definition of coastal fishing waters under 15A NCAC 2Q.0202(4) and G.S. § 113-132, so MFC jurisdiction was secure.

The bottom line: the ordinance was invalid to the extent it prohibited nets where state law permitted them. The AG did not strike the whole ordinance; the analysis was narrowly tied to the inconsistency with state law.

Currency note

This opinion was issued in 1998. 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's commercial gill net rules have been substantially tightened since 1998 (driven by sea turtle and finfish bycatch concerns), and the MFC has issued numerous proclamations and rules closing or restricting specific waters. The general preemption analysis remains valid, but a present-day inquiry into a specific canal would need to consult current MFC rules.

Background and statutory framework

The G.S. § 160A-174 framework. NC municipalities have broad authority to enact ordinances under § 160A-174(a), but § 160A-174(b) lists the limits. Subsection (b)(2) is the preemption-by-permission rule: a city ordinance cannot make unlawful what state law makes lawful. The classic application is to state-licensed activities that local governments try to restrict locally.

The G.S. § 113-133 abolition. In 1965, the General Assembly took a strong policy stance against local regulation of marine and estuarine resources. Local coastal-fishing laws were repealed wholesale. The justification was the migratory and shared-resource character of marine fisheries: a local rule in one inlet affects fishermen in another, the rules need to be uniform, and the science-based regulatory body for the resource is the MFC.

The MFC's regulatory authority. Under G.S. §§ 113-181 and 113-182, the Marine Fisheries Commission controls placement of nets and other fishing apparatus in coastal fishing waters, both from a safety and from a conservation standpoint. The MFC's authority is broad and is exercised through both rules (subject to APA rulemaking) and proclamations (faster, issued by the Fisheries Director under delegated authority).

Existing MFC safety rules on net placement. 15A NCAC 3J.0101 already addressed the safety question the Ocean Isle Beach ordinance was trying to address. Nets cannot be in locations posing a navigation hazard. Nets cannot block more than two-thirds of any waterway. The state's safety regulation was active and enforceable.

The petition path under § 150B-20. Any "person or governmental body" can petition an agency to adopt, amend, or repeal a rule under § 150B-20. The town had that avenue. Petitioning the MFC to close specific canals to gill nets would have been the lawful response to the town's concerns.

The proclamation path under § 113-221. The Fisheries Director can issue closure proclamations under § 113-221 (as delegated by the MFC under 15A NCAC 3J.103(a)). Proclamations are faster than rules and can be issued in response to specific emerging concerns.

Private canal beds. The opinion noted that some Ocean Isle Beach canals had privately owned beds. State v. Sutton (1905) was the classic NC authority on state fisheries regulation overriding private bed ownership. Bryant v. Hogarth (1997) reaffirmed the principle in modern context. Bed ownership did not exempt the canals from MFC jurisdiction.

The narrowly-scoped invalidity. The AG did not strike the entire ordinance. Only the gill-net ban as it conflicted with state law was invalid. Other parts of Ocean Isle Beach's municipal code (governing local activities, zoning, noise, etc.) remained in force. The ordinance might also have survived if it had been narrowly tailored to a legitimate non-fishery concern that did not directly prohibit state-permitted gill netting.

Common questions

Q: Could Ocean Isle Beach restrict gill nets in a way that didn't conflict with state law?

A: Probably very limited. The town could enforce the existing state safety rules (nets can't block more than two-thirds of a waterway, can't pose navigation hazards). But it cannot add new prohibitions on conduct state law allows.

Q: How does a town petition the MFC?

A: Under G.S. § 150B-20, the petition must specifically identify the proposed rule change and the rationale. The MFC must consider the petition and act on it within statutory timeframes.

Q: What if a homeowner is bothered by a gill net set near their dock?

A: Practical options include complaining to the Marine Patrol, requesting a proclamation closure, or supporting a town petition to the MFC. The homeowner cannot, however, support a local ordinance banning the activity.

Q: Did this opinion address recreational fishing?

A: No. The opinion was about state-licensed commercial gill netting. Recreational fishing in canals is regulated separately and was not addressed.

Q: Is the analysis different for inland waters?

A: Yes. Inland waters are under the Wildlife Resources Commission, not the MFC, and the local-preemption rules can differ. The opinion was specifically about coastal fishing waters under MFC jurisdiction.

Q: Could the General Assembly authorize Ocean Isle Beach to ban gill nets locally?

A: Yes. The legislature could enact a local act overriding the general preemption rule for a specific municipality. The AG opinion addressed only the existing statutory framework.

Citations from the opinion

• N.C. Gen. Stat. §§ 113-132, 113-133, 113-181, 113-182, 113-221
• N.C. Gen. Stat. § 150B-20
• N.C. Gen. Stat. §§ 160A-174, 160A-174(b)(2)
• 15A N.C.A.C. 2Q.0202(4)
• 15A N.C.A.C. 3J.0101
• 15A N.C.A.C. 3J.103(a)
• Greene v. City of Winston-Salem, 287 N.C. 66, 71, 213 S.E.2d 231, 235 (1975)
• Tastee-Freez, Inc. v. Raleigh, 256 N.C. 208, 123 S.E.2d 632 (1962)
• State v. Sutton, 139 N.C. 574, 575, 51 S.E. 1012 (1905)
• Bryant v. Hogarth, 127 N.C. App. 79, 488 S.E.2d 269, rev. denied, 347 N.C. 396, 494 S.E.2d 406 (1997)
• 41 N.C.A.G. 642 (1971) (prior AG opinion)

Source

• Landing page: https://ncdoj.gov/opinions/town-of-ocean-isle-beach-ordinance-prohibiting-gill-nets-in-canals/

Original opinion text

Best-effort transcription from the NCDOJ landing page; the opening paragraphs were not in the scraped capture, so the text below begins where the capture starts. The linked landing page is authoritative.

• (b) A city ordinance shall be consistent with the Constitution and laws of North Carolina and of the United States. An ordinance is not consistent with State or federal law when: . . . .
• (2) The ordinance makes unlawful an act, omission or condition which is expressly made lawful by State or federal law; [Emphasis added.]

Although the stated intent of the ordinance is public safety, it completely prohibits commercial fishermen, who are licensed by the State to use gill nets, from setting their nets in the canals within the town. The use of gill nets by licensed commercial fishermen is a method of fishing expressly authorized by State law, and the canals are public coastal fishing waters open to gill netting under the rules of the Marine Fisheries Commission ("MFC"). As a result, the local ordinance "makes unlawful an act, omission or condition which is expressly made lawful by State . . . law," and is barred by G.S. § 160A-174(b)(2). Thus we conclude that the ordinance is invalid, but only to the extent that it prohibits nets to be located where expressly permitted by State law.

Construing G.S. § 160A-174(b)(2), the North Carolina Supreme has concluded that: It has long been the law of this State that "towns and cities are parcels of the State; their corporate powers are emanations from the State for purposes of convenience, and it could never be allowed that they should contravene the policy of the State, or exercise powers not conferred, much less such as are either expressly or impliedly prohibited." [Citations omitted, emphasis added.] Greene v. City of Winston-Salem, 287 N.C. 66, 71, 213 S.E.2d 231, 235 (1975).

The manner in which the rule applies is illustrated by Tastee-Freez, Inc. v. Raleigh, 256 N.C. 208, 123 S.E.2d 632 (1962). In that case, an ice cream peddler had obtained a State license to conduct that business from a mobile freezer unit along the streets and highways, including those within the City of Raleigh. However, the city's own licensing ordinance prevented the State licensee from peddling his products along the city streets. The Supreme Court held the city ordinance was invalid and unenforceable because it purported to prohibit a person from exercising a privilege granted by a State license. The same may be said of the Ocean Isle Beach ordinance, as it attempts to prohibit fishing permitted under commercial fishing licenses issued by the State.

This analysis is consistent with G.S. § 113-133, which the General Assembly enacted in 1965. That statute, captioned "Abolition of local coastal fishing laws," repealed all local fishing laws, including local ordinances on that subject. That provision provides, in part, that "[t]he 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." However, the statute provides that local governments may exercise their valid powers "over subjects other than the conservation of marine and estuarine resources, even though an incidental effect" of the ordinance may result in an overlap or conflict of jurisdiction on a matter not essential to the conservation objectives of that Subchapter of the General Statutes.

This office has previously opined that "[i]n view of this statute [G.S. § 113-133] the authority to regulate coastal fishing is within the exclusive power of the North Carolina Department of Conservation and Development [now the Department of Environment and Natural Resources]." Opinion of the Attorney General to Mr. Clifton L. Moore, Jr., Topsail Beach Town Attorney, 41 N.C.A.G. 642 (1971). Since that opinion issued, many of those regulatory functions have been transferred to the MFC. See G.S. §§ 113-181 and 113-182. That opinion concluded:

Although G.S. 113-133 does not prohibit local ordinances which exercise valid power over subject matters other than conservation of marine and estuarine resources within their jurisdiction, the regulation of commercial fishermen so as to prevent their fishing in certain areas or using methods permitted by State law would amount to the exercise of authority over the conservation of marine and estuarine resources. Local governments are not permitted to do so under G.S. 113-133. 41 N.C.A.G. at 643.

In addition, G.S. § 113-181 authorizes DENR to "regulate placement of nets and other sports or commercial fishing apparatus in coastal fishing waters with regard to navigational and recreational safety as well as from a conservation standpoint." G.S. § 113-182 also vests the MFC with control over opening and closing of coastal fishing waters, except as to inland game fish, whether entirely or only as to the taking of particular classes of fish, use of particular equipment, or as to other activities within the jurisdiction of the Department. G.S. § 113-182(b)(1). In the exercise of that authority, the MFC has adopted rules which govern to placement of nets from the standpoint of public safety. Those rules prohibit, inter alia, the use of nets "in any . . . location where it may constitute a hazard to navigation;" or "[s]o as to block more than two-thirds of any natural or manmade waterway." 15A N.C.A.C. 3J.0101. The MFC has also delegated to the Fisheries Director authority to close areas to the placement of gill nets through proclamations issued under G.S. § 113-221. 15A N.C.A.C. 3J.103(a). The town could petition the MFC under G.S. § 150B-20 to adopt a rule closing the canals to gill netting, or request the issuance of a proclamation closing the area.

Finally, this opinion is not affected by private ownership of the bed of these man-made canals. The courts have long recognized the ability of the State to regulate fisheries on private property. State v. Sutton, 139 N.C. 574, 575, 51 S.E. 1012 (1905); Bryant v. Hogarth, 127 N.C. App. 79, 488 S.E.2d 269, rev. denied, 347 N.C. 396, 494 S.E.2d 406 (1997). Further, the waters within the canals are coastal fishing waters under the jurisdiction of the MFC. 15A N.C.A.C. 2Q.0202(4); G.S. § 113-132. For example, fish caught within the canals must comply with harvest restrictions adopted by the Commission.

In summary, it is our opinion that Section 6-6-17 of the Town of Ocean Isle Beach Code of Municipal Ordinances violates G.S. § 160A-174(b)(2), and is therefore invalid to the extent that it prohibits the location of gill nets where they are expressly permitted by State law.

Thank you for your opinion request. We hope this analysis is useful to you.

signed by:

Daniel C. Oakley, Senior Deputy Attorney General

J. Allen Jernigan, Special Deputy Attorney General