Can the NC Marine Fisheries Commission sue or file a contested case against another state agency (the Department of Environment and Natural Resources) over a permit decision that the Commission thinks harms fisheries?
Plain-English summary
The NC Marine Fisheries Commission and the Department of Environment and Natural Resources both sit inside the executive branch. When the Department issued a permit (the Nucor permit) the Commission thought would harm marine resources, Chairman Jimmy Johnson asked the AG whether the Commission could sue the Department, or file a contested case under the Administrative Procedure Act to challenge the permit. The 1999 AG answer is functionally no, with the actual decision routed up to the Governor.
The route through G.S. 143B-289.61. The Commission and the Department are both in the executive branch. The General Assembly anticipated disputes between them and built a specific resolution mechanism: G.S. 143B-289.61 provides that any question between the Department and the Commission regarding their duties, responsibilities, or authority "shall be resolved by the Governor, whose decision shall be binding." The AG opened by pointing out this statute, meaning that even if there is a substantive legal question about the Commission's litigation authority, the practical disposition runs through the Governor's office.
The textual grant the Commission relied on. G.S. 143B-289.52(a)(9) gives the Commission power "to comment on and otherwise participate in the determination of permit applications received by State agencies which may have an effect on the marine and estuarine resources of the State." The Commission read "otherwise participate" broadly to include filing a contested case challenging a Department permit.
The AG's reading: "participate" does not equal "sue." Applying standard principles of statutory construction, the AG said the phrase has its ordinary meaning. To comment on and participate in permit determinations is to communicate views through normal public hearing processes. The statute does not expressly authorize litigation against state agencies, and authority to sue a sister executive-branch agency "should not be lightly inferred." The Commission's powers are limited to what the legislature granted.
The comparison statute. G.S. 113-131(b) gives the Department and the Wildlife Resources Commission two distinct powers: to "comment on and object to permit applications submitted to State agencies" and to "initiate contested case proceedings under Chapter 150B for review of permit decision by State agencies." The legislature spelled out both powers when it wanted to authorize a contested-case attack on another agency's permit. Marine Fisheries got only the comment power. Under the standard rule that the legislature acts purposefully when it grants a power in one place but not in a parallel place, the contested-case authority is absent for Marine Fisheries.
The 1998 McLawhorn letter does not change the answer. Chairman Johnson attached a February 17, 1998 advisory letter from Dan McLawhorn, then in the AG's office, which had read "otherwise participate" to allow Marine Fisheries to initiate a contested case. The 1999 AG opinion clarified that the McLawhorn letter was an unreviewed advisory letter, did not go through the AG opinion process, and was not based on the particular facts now presented. The 1999 letter also pointed out a substantive flaw in the McLawhorn analysis: it did not consider G.S. 113-131(b)'s differentiation between Marine Fisheries and the Department/WRC, which is the strongest evidence that the legislature withheld the contested-case authority from the Commission.
A jurisdictional wrinkle. Even if the McLawhorn interpretation were correct, the Nucor permit is a water-quality decision under the Environmental Management Commission's jurisdiction. G.S. 113-132(c) carves Marine Fisheries jurisdiction back to exclude any matter "clearly within the jurisdiction vested in . . . the Environmental Management Commission." So even on the broader reading of "participate," Marine Fisheries would lack jurisdiction over the Nucor matter specifically.
What the Commission can actually do. Comment publicly. Participate in hearings. Submit objections through the permit-review process. And, on substantive disputes between the Commission and the Department, request that the Governor resolve the dispute under G.S. 143B-289.61. The AG sent the opinion to the Governor's counsel, Jack Jenkins, so the office would be aware if the Commission elected to take the dispute up.
Currency note
This opinion was issued in 1999. 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 environmental agency structure has been reorganized several times since 1999. What was the Department of Environment and Natural Resources became the Department of Environment, Health, and Natural Resources, then DEQ. The Marine Fisheries Commission still exists with substantially similar authority. Anyone analyzing a current Commission-versus-DEQ dispute should pull the current statute, confirm the Commission's enumerated powers under what is now G.S. 143B-289.52, and check whether the Governor-resolution mechanism in G.S. 143B-289.61 survives in present form.
Common questions
Q: Why can't one state agency just sue another?
A: Because both agencies are part of the same executive branch and report ultimately to the Governor. Letting them litigate against each other in court or in administrative tribunals would substitute the courts for the Governor's constitutional role as chief executive. Authority to sue a sister agency must be specifically granted by the General Assembly.
Q: What does "otherwise participate in the determination" mean if not contested-case authority?
A: It means substantive engagement: filing comments, attending public hearings, providing data and expert analysis, recommending denial or conditions, requesting meetings with the permit-issuing agency. It means "participating" in the public-input sense, not "litigating" in the adverse-party sense.
Q: How does the Governor resolve a dispute under G.S. 143B-289.61?
A: The statute leaves the procedure to the Governor's office. In practice, the Commission and the Department would each submit their position, with supporting analysis; the Governor (typically through his counsel and policy staff) would review and issue a decision. The decision is "binding" by the statute's terms, but it is not a court judgment, and judicial review would be limited.
Q: Could the Commission go to the legislature instead?
A: Yes, the Commission could ask the General Assembly to amend G.S. 143B-289.52 to give it contested-case authority parallel to the Department's and Wildlife Resources Commission's. That is the standard route when an agency wants new authority.
Q: Could a private citizen or NGO file a contested case instead?
A: Maybe. Any person aggrieved by an agency decision generally has contested-case standing under Chapter 150B, subject to the substantive prerequisites. An environmental NGO that meets the standing test could challenge the permit even if the Commission cannot.
Q: Why was the Wildlife Resources Commission given contested-case authority but not Marine Fisheries?
A: The opinion does not say. The 1973 reorganization that created the modern structure probably allocated the contested-case authority to the agencies with the broadest cross-jurisdictional duties (Department, WRC) and not to specialized resource commissions. Whatever the legislative history, the 1999 AG opinion treats the difference as deliberate.
Background and statutory framework
The NC Marine Fisheries Commission was established in 1965 and reorganized into Chapter 143B in 1973 as part of the modern executive-branch consolidation. It is housed in the Department of Environment and Natural Resources (now DEQ) and has rulemaking authority over commercial and recreational marine and estuarine fisheries. Its powers come from Subchapter X of Chapter 113 (substantive resource regulation) and from G.S. 143B-289.51 through .61 (administrative structure).
The relationship between Marine Fisheries and the larger Department has always carried structural tension. The Commission has substantive expertise in fisheries, but the Department holds permit-issuance authority for water-quality and habitat impacts that affect those fisheries. When a permit decision the Department makes has fisheries consequences the Commission opposes, the Commission has only the participation authority of G.S. 143B-289.52(a)(9), not the contested-case authority of G.S. 113-131(b).
The Nucor permit (the unstated background for the 1999 request) was a major industrial permitting decision in eastern NC. Nucor's Hertford County steel plant required state air, water, and stormwater permits during the late 1990s. Marine Fisheries opposed certain water-quality provisions on fisheries grounds. The Department issued the permits over those objections, leading the Commission to ask whether it had any legal recourse.
The 1999 AG opinion clarified that the recourse runs through the Governor's office, not through a court or administrative tribunal. That answer is consistent with the broader NC pattern: executive-branch disputes between agencies are resolved by the chief executive, not by litigation.
Citations
- N.C. Const. art. III, § 5(10) (Governor and executive-branch agencies)
- N.C. Gen. Stat. § 113-131 (powers of WRC and Department over public trust resources)
- N.C. Gen. Stat. § 113-131(b) (express authority to initiate contested cases)
- N.C. Gen. Stat. § 113-132 (Marine Fisheries jurisdiction)
- N.C. Gen. Stat. § 113-132(c) (carve-out for matters under Environmental Management Commission)
- N.C. Gen. Stat. § 143B-289.51 (Commission established)
- N.C. Gen. Stat. § 143B-289.52(a)(9) (comment and participate in permit determinations)
- N.C. Gen. Stat. § 143B-289.61 (Governor resolves intra-agency disputes)
- N.C. Gen. Stat. ch. 150B (Administrative Procedure Act)
- Electric Supply Co. v. Swain Electrical Co., 328 N.C. 651, 656 (1991)
- Crowell Constructors, Inc. v. State ex rel. Cobey, 342 N.C. 838 (1996)
- Op. Att'y Gen. (D. McLawhorn), Feb. 17, 1998 (advisory letter, not reviewed and approved)
Source
Original opinion text
REPLY TO: Francis W. Crawley
Environmental Division
[email protected]
Telephone: 919/716-6600
Fax: 919/716-6767
October 11, 1999
Mr. Jimmy Johnson, Chairman
North Carolina Marine Fisheries Commission
Post Office Box 2132
Washington, North Carolina 27889
RE: Advisory Opinion: Authority of the Marine Fisheries Commission to Commence a Lawsuit or Administrative Action Against the Department of Environment and Natural Resources; N.C.G.S. § 143B-289.52(a)(9).
Dear Chairman Johnson:
We have received two letters, dated July 13, 1999 and September 7, 1999, requesting an opinion regarding the existing authority of the Marine Fisheries Commission (hereinafter "Commission") to commence a contested case hearing under the Administrative Procedure Act or to file a civil lawsuit against the Department of Environment and Natural Resources (hereinafter "Department"). Initially, we note that a procedure for binding resolution of disputes between the Commission and the Department regarding their authority, has been established in N.C.G.S. § 143B-289.61, which reads as follows:
In the event of any question arising between … the Department of Environment and Natural Resources and the Marine Fisheries Commission as to any duty, responsibility, or authority imposed upon any of these bodies by law or with respect to conflict involving rules or administrative practices, the question or conflict shall be resolved by the Governor, whose decision shall be binding.
Therefore, any question regarding the Commission's ability to take legal action with respect to the Department must ultimately be resolved through the Governor's office. In considering such question, the Governor may be guided by the following legal analysis.
The Commission is created by statute as an agency in the Department, whose function and duties are to conserve, protect and regulate the marine and estuarine resources of the State, N.C.G.S. §§ 143B-289.51; 113-132. As an agency of the executive branch of government, the Commission's powers and duties are those prescribed by the Legislature and set forth in the General Statutes. See North Carolina Constitution, Article III, Section 5(10). The authority of the Commission to carry out its statutory duties through litigation against a sister agency should not be lightly inferred. Rather, express statutory authorization from the General Assembly is necessary.
In reviewing the sources of the Commission's authority, we find the Legislature has authorized the Commission "[t]o comment on and otherwise participate in the determination of permit applications received by State agencies which may have an effect on the marine and estuarine resources of the State." N.C.G.S. § 143B-289.52(a)(9). In resolving issues concerning statutory construction, the primary task is to be sure the intent and purpose of the Legislature is carried out. "Legislative purpose is first ascertained from the plain words of the statute." Electric Supply Co. v. Swain Electrical Co., 328 N.C. 651, 656 (1991). Absent any ambiguity and where words are not defined in the statute, the words are accorded their ordinary and plain meaning. See Crowell Constructors, Inc. v. State ex rel. Cobey, 342 N.C. 838 (1996). Applying the foregoing rules of statutory construction to the statutes in question, the phrase "to comment on and otherwise participate in the determination of" must be given its common meaning because the phrase is not ambiguous on its face. This authority would appear to allow the Commission to communicate its views to other agencies through normal public hearing processes. Nowhere in this grant of authority is there an express empowerment to sue state agencies.
By comparison, the Legislature has used specific language in setting forth the powers and duties granted the Department and the Wildlife Resources Commission ("WRC") to "(1) [c]omment on and object to permit applications submitted to State agencies" and to "(2) [i]nitiate contested case proceedings under Chapter 150B for review of permit decision by State agencies." See N.C.G.S. § 113-131(b). This statute specifically authorizes the Department and WRC to challenge permit decisions adversely affecting public trust rights by the initiation of contested case proceedings. Significantly, it does not apply to the Marine Fisheries Commission. By expressly authorizing other agencies both to comment and to initiate contested case proceedings while declining to use similar language to describe the Commission's power to participate in permit review, it appears the Legislature did not intend to expand the authority of the Commission similarly.
You have attached to your letter a February 17, 1998 advisory letter from Dan McLawhorn, then of the Attorney General's office, now counsel to the Department. In that letter, Mr. McLawhorn concludes that the Commission's authority to "otherwise participate" would allow the Commission to initiate a contested case hearing. It must be clarified here that, in drafting his letter, Mr. McLawhorn was not presented with the fact situation which is the basis for your opinion request and, therefore, his letter can not be readily applied to the question presented here. Further, in his letter, Mr. McLawhorn did not consider that the Legislature has specifically given authority to file a contested case to both the Department and the WRC in Section 113-131(b), while failing to give similar authority to the Commission. Mr. McLawhorn, in his letter, also points out additional constraints on the Commission's authority. Specifically, under Section 113-132(c), the Marine Fisheries Commission does not have jurisdiction over any matters "clearly within the jurisdiction vested in … the Environmental Management Commission… ." As the Nucor permit is a matter under the Environmental Management Commission's jurisdiction, even if Mr. McLawhorn's interpretation were correct, the Commission would not have such jurisdiction in this matter.
We have provided a copy of this letter to Mr. Jack Jenkins, counsel to the Governor, for his information should the Commission decide to make inquiry of the Governor's office for final resolution. Please feel free to contact us if you have additional questions.
Sincerely,
Daniel C. Oakley
Senior Deputy Attorney General
Francis W. Crawley
Special Deputy Attorney General
cc: Marine Fisheries Commission
Dan McLawhorn
Jack Jenkins
Dewey Botts
Preston Pate
George Hurst
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