Could South Carolina deny commercial fishing licenses to residents of states that restrict South Carolina fishers?

Plain-English summary

A legislator sought clarification after a constituent heard conflicting interpretations of a South Carolina provision on commercial fishing licenses for residents of other coastal states. The provision authorized the Department of Natural Resources to deny licenses to residents of states that denied South Carolinians the same privileges and to impose comparable limits on equipment, seasons, and fishing areas.

The Attorney General repeated its January 1998 view that the provision was constitutionally suspect under the Privileges and Immunities Clause. It also repeated that the statute was presumed valid and should continue to be followed until a court or the Legislature acted. The constituent had not identified the particular DNR interpretation in dispute, so this later opinion gave no answer to that application. It said the office generally deferred to a reasonable interpretation by the agency charged with administering the 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.

Common questions

Did the AG say the fishing-license provision was unconstitutional and unenforceable? A: No. It repeated a prior opinion's constitutional concern but said the statute should be followed until judicial or legislative action changed it.

Did the opinion decide which DNR interpretation applied to the constituent? A: No. The request did not specify the agency interpretation at issue. The AG said it needed a specific question to give further advice.

How did the AG view DNR's interpretation of the provision? A: The office said it typically deferred to a reasonable construction by the agency charged with enforcement, especially one that might preserve a statute's constitutionality.

Could a coastal state's restrictions on South Carolinians affect its residents' licenses in South Carolina? A: The statute quoted in the opinion allowed comparable restrictions on nonresident commercial fishing permits, equipment, seasons, and areas. The opinion discussed its constitutional concern and the need to follow it pending court or legislative action.

Background and statutory framework

The opinion quoted § 50-17-250 and reproduced the conclusion of an enclosed January 8, 1998 AG opinion. The official PDF for this November letter ends with “Enclosure” but does not include that earlier opinion. Its reproduced conclusion, rather than the absent enclosure's full reasoning, supports this page's account of the constitutional issue.

Citations and references

The opinion quoted § 50-17-250 and cited earlier AG advice on administrative interpretation. The source PDF contains the full November letter.

Official title

Stating that you have been contacted by a constituent who needs clarification on the law regarding fishing licenses.

Requester

The Honorable William D. Witherspoon, Member, House of Representatives

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/november-25-1998/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/98nov25witherspoon.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES M. CONDON
ATTORNEY GENERAL

November 25, 1998

I
I

The Honorable William D. Witherspoon
Member, House of Representatives
111 Shenvood Drive
Conway, South Carolina 29526

Re: Informal Opinion
Dear Representative Witherspoon:
You state that you have been contacted by a constituent who need clarification on the law regarding fishing licenses. You constituent has spoken with several different people regarding this matter. You indicate that each person he has spoken with interprets this section differently. Thus, you seek an opinion regarding this provision.

Law I Analysis
S. C. Code Ann. Sec. 50-17-250 provides as follows:
[t]he department may deny issuance of any license or permits for commercial fishing equipment or activities to residents of any coastal state which denies the same privileges to South Carolina residents. The department may limit the type of fishing equipment used, seasons. and areas where nonresidents may fish in accordance with comparable limitations placed upon South Carolina fishermen by the nonresident's state." On January 8. 1998, this Office had the occasion to review § 50-17-250. I am

Representative Witherspoon
Page 2
November 25, 1998
enclosing the Opinion for the benefit of your constituent's information. Therein, \Ve referenced a number of case authorities and prior opinions of this Office concluding as follows:
[b ]ased upon the foregoing authorities, it would appear that § 50-17-250 is constitutionally suspect. Such provision requires that where a nonresident's state charges South Carolina residents commercial license fees in excess of the amounts provided for like activities in South Carolina, "the nonresident must pay the same total license fees which his state charges South Carolina residents." The various authorities cited above would clearly indicate that such a provision would violate the Privileges and Immunities Clause. However, this Office must presume the validity of this provision as it does with respect to any other statute enacted by the General Assembly. As stated in a recent opinion of this Office with respect to another statute,'"[ a] declaratory judgment or legislative clarification would be advisable to determine the constitutionality of this statute or to take corrective legislative measures. Until such legislative or judicial action is taken, however, it would appear that [the statute in question] should be followed."' This same advice would be applicable here as well. Until the Legislature or the courts act or rule to the contrary, I must advise that the statute continue to be followed. I note that your letter does not specify the interpretation of§ 50-17-250 by the Department of Natural Resources with which your constituent is concerned. Let me say, however, that as a matter of policy this Office typically defers to the administrative interpretation by the agency charged with enforcement of the statute in question. As was emphasized in an earlier Opinion, '"construction of a statute by the agency charged with executing it is entitled to the most respectful consideration [by the courts] and should not be overruled absent cogent reasons." Op. Attv. Gen., October 20, 1997, quoting Logan v. Leatherman, 290 S. C. 400. 35 [ S.E.2d

146. 148 ( 1986). The courts have stated that it is not necessary that the administrative

Representative Witherspoon
Page 3
November 25, 1998
agency's construction be the only reasonable one or even the reading the court would have reached if the question initially had arisen in a judicial proceeding. Ill. Commerce Comm. v. Interstate Commerce Commission, 749 F.2d 825 (D. C. Cir. 1984). Ivloreover, the agency interpretation which might render a statute constitutional is given particular deference. Cf. Henderson v. Evans, 268 S.C. 127, 232 S.E.2d 331 (1977). Thus, we would need a specific question regarding§ 50-17-250 in order to render advice to you. However. typically, so long as DNR's administrative interpretation was reasonable, this Office would defer to it.

I

This letter is an informal opinion only. It has been written by a designated Assistant Deputy Attorney General and represents the position of the undersigned attorney as to the specific questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion. With kind regards, I am Very truly yours,

Robert D. Cook
Assistant Deputy Attorney General
RDC/ph
Enclosure