Is North Carolina's SB 991 banning purse seine menhaden fishing in Dare County a general law or a local act, and would it survive constitutional review?
Plain-English summary
The AG was asked two questions about Senate Bill 991, which would have banned purse seine menhaden fishing in adjacent ocean areas of Dare County: (1) is SB 991 a general or a local act for constitutional purposes, and (2) if local, do other constitutional provisions limit it.
Under NC Supreme Court precedent, laws are "either 'general' or 'local'; there is no middle ground" (Surplus Co. v. Pleasants, Sheriff, 264 N.C. 650 (1965)). The legislature's designation of a bill as local rather than general does not control (Town of Emerald Isle v. State, 320 N.C. 640 (1987)). The AG used the Town of Emerald Isle standard: focus on the extent to which the act affects general public interests and concerns, not on whether the act affects only one area of the State.
The AG concluded SB 991 could be defended as a general law if the legislative record showed two things: (a) the bill addressed a state-wide interest (the tourism record on Dare County menhaden injuries arguably did), and (b) the legislature acted with uniform and coordinated effect on a matter related to the welfare of the whole State. If both showings could be made, SB 991 was probably constitutional.
The fallback question, if the bill were found local: did SB 991 hit any of the prohibited local-act subjects in N.C. Const. art. II, § 24? The AG identified two risks. First, abating a nuisance: the tourism rationale rests on treating menhaden purse seining as a nuisance, which would trigger the § 24 prohibition (Chadwick v. Salter, 254 N.C. 389 (1961); Chem-Security System v. Morrow, 61 N.C. App. 147 (1983)). Second, regulating trade: commercial menhaden harvest is a trade, and barring the trade in a specific area counts as regulation (State v. Smith, 265 N.C. 173 (1965)). The AG also noted the General Assembly had stopped passing local coastal-fishing acts after 1965 (and repealed earlier ones at N.C. Gen. Stat. § 113-133), a legislative practice that might carry deference even though no appellate decisions addressed the question.
Bottom line: defend it as general or face significant local-act risk.
Currency note
This opinion was issued circa 2002. 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 law and the case law on general-versus-local acts have continued to evolve. Anyone analyzing a current coastal-fishing bill should pull current Marine Fisheries Commission rules and recent NC Supreme Court decisions on local-act limits.
Common questions
Q: At the time of the opinion, was SB 991 unconstitutional?
A: The AG did not say so. The AG said SB 991 could likely be defended as a general law if the legislative record was built right. If a court found it local, however, it would likely fall.
Q: Why was a menhaden-fishing ban potentially a state-wide concern?
A: The legislative history pointed to tourism injuries in Dare County. Tourism is one of the categories the NC Supreme Court has accepted as state-wide enough to support a general-law characterization (see Webb v. Port Commission).
Q: What is the "abating a nuisance" prohibition?
A: N.C. Const. art. II, § 24 lists subjects on which the General Assembly cannot pass local acts. Abating a nuisance is one of them. A statute aimed at stopping a specific local practice on the theory it harms surrounding interests looks like nuisance abatement.
Q: Why did the regulation-of-trade prohibition matter?
A: Purse seine menhaden harvest is commercial activity, distinct from recreational fishing. Banning commercial harvest is regulating trade. § 24's prohibition on local acts regulating trade was thus at risk if SB 991 was local.
Background and statutory framework
The two-prong general-versus-local framework the AG applied:
- Town of Emerald Isle standard. Focus on whether the act affects general public interests and concerns. State-wide interest + uniform and coordinated action = general.
- N.C. Const. art. II, § 24. Prohibits local acts on enumerated subjects, including abating a nuisance and regulating trade. Subsection (4) limits the local-law inquiry to laws actually found local.
The cases the AG marshaled:
- Surplus Co. v. Pleasants, Sheriff, 264 N.C. 650 (1965). No middle ground between general and local.
- Town of Emerald Isle v. State, 320 N.C. 640 (1987). Public-interest focus.
- McIntyre v. Clarkson, 254 N.C. 510 (1961). Earlier standard, not relied on here.
- Yarborough v. Park Commission, 196 N.C. 284 (1928). "A statute will not be deemed private merely because it extends to particular localities or classes of persons."
- Webb v. Port Commission, 205 N.C. 663 (1933). Tourism-promotion facility was an act of general public interest.
- Chadwick v. Salter, 254 N.C. 389 (1961) and Chem-Security System v. Morrow, 61 N.C. App. 147 (1983). Nuisance-abatement examples.
- State v. Smith, 265 N.C. 173 (1965). Banning a trade in a certain area is regulation.
The legislative-history backstop: § 113-133 repealed all local coastal-fishing acts in 1965, and none have been adopted since 1963.
The opinion was signed by Senior Deputy Attorney General Edwin M. Speas, Jr. and Special Deputy Attorney General Daniel F. McLawhorn.
Citations
- N.C. Const. art. II, § 24 (prohibited subjects for local acts)
- N.C. Const. art. II, § 24(4) (scope of local-law limits)
- N.C. Gen. Stat. § 113-133 (repeal of local coastal-fishing acts)
- Surplus Co. v. Pleasants, Sheriff, 264 N.C. 650 (1965)
- Town of Emerald Isle v. State, 320 N.C. 640 (1987)
- McIntyre v. Clarkson, 254 N.C. 510 (1961)
- Yarborough v. Park Commission, 196 N.C. 284 (1928)
- Webb v. Port Commission, 205 N.C. 663 (1933)
- Chadwick v. Salter, 254 N.C. 389 (1961)
- Chem-Security System v. Morrow, 61 N.C. App. 147 (1983)
- State v. Smith, 265 N.C. 173 (1965)
Source
Original opinion text
(1) Is SB 991 a general or a local act as those terms are defined for constitutional purposes?
(2) Depending on its classification, do any other provisions of the Constitution limit the ability of the General Assembly to adopt SB 991?
These two questions will be addressed seriatim. Since the limits in the powers to adopt local laws do not apply to general laws, a determination that SB 991 is a general law may preclude the need to address the second query. See, Article II, § 24(4), N.C. Constitution.
A. GENERAL OR LOCAL
In past decisions, the N.C. Supreme Court has declared that laws are "either 'general' or 'local'; there is no middle ground." Surplus Co. v. Pleasants, Sheriff, 264 N.C. 650, 656 (1965). However, the fact that the General Assembly has designated a bill as local rather than public, or general law, "is not determinative of whether a bill is a general law or a law under the North Carolina Constitution." Town of Emerald Isle v. State, 320 N.C. 640, 650 (1987).
Our Supreme Court has applied two principal interpretations for determining whether a legislative act is general or local. Compare Town of Emerald Isle v. State, supra., and McIntyre v. Clarkson, 254 N.C. 510 (1961). For purposes of this review, we have relied on the more recently enunciated standard, that in Town of Emerald Isle. Importantly, the Supreme Court concluded that, in applying the Constitution, its "attention should focus on the extent to which the act in question affects the general public interests and concerns" rather than whether the decision to adopt an act affecting only one area of the State would cause an act to be deemed local for constitutional purposes.
In 1928, our Supreme Court applied the same standard when it upheld an act authorizing condemnation of lands for a park. The Court held: "[A] statute will not be deemed private merely because it extends to particular localities or classes of persons." Yarborough v. Park Commission, 196 N.C. 284, 291 (1928). It is also significant that the Court has found an act to create a facility, in a certain location, for the purpose of promoting tourism was an act affecting the general public interests and concerns. See, Webb v. Port Commission, 205 N.C. 663, 682 (1933).
The legislative history demonstrates that SB 991 was introduced to protect tourism from the prior injuries that have resulted from menhaden fishing in the specific adjacent ocean areas of Dare County. While that purpose is adequate to demonstrate the bill addresses a matter of general public interest, the ban on purse seine menhaden fishing, in an isolated area, must also be shown to be a matter of state-wide interest and concern that results in uniform and coordinated action on a matter related to the welfare of the whole State. Based on the information we have, we are unable to conclusively determine whether this showing can be made. If it can, the bill is likely constitutional; if it can't, there may be problems with the legislation.
Assuming the two factors of state-wide interest and uniform and coordinated action are satisfied by the final bill, we conclude that SB 991 can be shown to be a general law rather than a local law. As such, it would not trigger the need to consider the limitations of Article II, § 24 of the Constitution.
B. LOCAL LAW LIMITATIONS
Should a court find differently and determine that SB 991 is a local law, then the Court would have to determine whether it addresses prohibited issues. The pertinent prohibitions are against local acts abating a nuisance and regulating trade.
As introduced, the bill, from its legislative history, would likely be determined an act to abate a nuisance. See e.g. Chadwick v. Salter, 254 N.C. 389 (1961) and Chem-Security System v. Morrow, 61 N.C. App. 147 (1983). In fact, the analysis offered in support of the general public purpose, the enhancement of tourism, is founded on the notion that the act will abate a nuisance.
The regulation of trade provision requires consideration of two issues: Is this a "trade" and does the act "regulate." Since SB 991 is limited to purse seine harvest of menhaden and does not extend to recreational fishing, we conclude the trade criterion is met. Prior decisions have established that an act barring a "trade" in a certain area is regulation. State v. Smith, 265 N.C. 173 (1965). It is noteworthy that acts regulating coastal fishing and denominated as "local" under the rules of the General Assembly were regularly adopted between 1917 and 1963. In 1965, the General Assembly repealed all such local coastal fishing acts. See G.S. 113-133. None have been adopted since 1963. While no appellate opinions were issued concerning the legislative authority to adopt such acts, the long history of so construing the Constitution may be accorded deference by the appellate courts especially as it relates to the "regulation of trade" limitation.
In conclusion, if SB 991 is found to be a general act, it should withstand challenge. We believe it can be found to be a general act under the Town of Emerald Isle opinion if the bill or its legislative history shows this to be a matter of state-wide interest and concern upon which the legislature took a uniform and coordinated action for the welfare of the whole State. On the other hand, if the courts were to find that the legislation is a local act, it appears to address prohibited subjects of local legislation and might be found unconstitutional.
Edwin M. Speas, Jr.
Senior Deputy Attorney General
Daniel F. McLawhorn
Special Deputy Attorney General