The state is appealing a trial judge’s recent ruling that North Carolina government has failed to meet its constitutional obligation to maintain state fisheries.

Lawyers in state Attorney General Jeff Jackson’s office filed a notice of appeal Wednesday.

“The Order in Liability Phase affects a substantial right that would be lost, prejudiced, and/or inadequately preserved without an immediate appeal,” according to the one-paragraph notice.

“We are disappointed that the State has chosen to file a meritless, procedurally improper appeal rather than focus its energy on addressing the serious problems identified at trial and moving the State’s fisheries managers toward practical, science-based solutions,” said David Sneed, executive director of Coastal Conservation Association North Carolina, in a statement provided Friday to Carolina Journal. “This meritless appeal does not change the need to act to restore our coastal fisheries, and North Carolinians have waited long enough for meaningful progress.

“After nearly six years of hard-fought litigation and a six-week trial centered on extensive scientific evidence and fisheries data — including undisputed evidence that not a single one of North Carolina’s 13 state-managed coastal fish stocks is currently viable — the Court ruled that the State of North Carolina failed in its legal responsibility to protect and preserve the public’s coastal fisheries,” Sneed added.

“CCA NC stands ready to work with the State’s fisheries managers, fisheries scientists, and stakeholders across North Carolina to develop practical solutions that rebuild these public resources for current and future generations,” he said.

Wake County Superior Court Judge Bryan Collins issued his 190-page ruling on Aug. 17, nearly six months after he conducted a trial that extended from January into February.

“On this trial record reflecting approximately six weeks of evidence, and after carefully weighing all of the evidence presented, the Court concludes, based on the preponderance of the evidence … that the State has failed to meet its ‘obligation to manage and protect fisheries for the benefit of the general public’ as required under the public-trust doctrine, failed to ‘keep fisheries safe from injury, harm, or destruction for all time’ as required under Article I, Section 38, and failed to ‘protect the harvestable fish population “for the benefit of the citizenry”’ as required under Article XIV, Section 5,” Collins wrote in his order.

Coastal Conservation Association North Carolina led a group of more than 80 plaintiffs that sued the state in 2020.

“The State argues that Plaintiffs have the burden of proof and cannot carry that burden due to the substantial gaps in crucial data,” Collins wrote. “That argument is specious at best. It is the State’s duty to manage our public trust fish. The evidence is overwhelming that one of the critical aspects of that duty is to collect adequate data. The data gaps the Court has found in this case are evidence themselves of management failures by the State and not lack of evidence from Plaintiffs.”

“[B]ased on the preponderance of the evidence, including the evidence described in the Court’s extensive findings, … the Court concludes that the State has breached its obligations under the public-trust doctrine, Article I, Section 38 of the North Carolina Constitution, and Article XIV, Section 5 of the North Carolina Constitution,” he wrote.

Collins ordered parties on both sides to meet and prepare a report within 45 days to address “any issues the parties may wish the Court to consider in connection with the scheduling of further proceedings in the remedy phase of this action.”

A unanimous panel of the NC Court of Appeals ruled in September 2022 that the state could be sued for failing to protect North Carolinians’ fishing rights.

Appellate judges agreed to affirm a trial judge’s ruling in the case, Coastal Conservation Association v. State of NC. The trial court had rejected the state’s attempt to have the case thrown out because of sovereign immunity.

“[A]s Plaintiffs allege, protecting fisheries falls within the purview of the public trust doctrine, and ‘the State can no more abdicate this duty than it can abdicate its police powers in the administration of government and the preservation of the peace,” wrote Appeals Court Judge Toby Hampson. “Plaintiffs here are not asserting rights of ownership or exclusive access to public trust lands. To the contrary, Plaintiffs’ claims are broadly premised on the State’s dominion over public trust property and obligation to enforce the public trust.”

“Plaintiffs are not attempting to enforce public trust rights against a private party — i.e., suing commercial fishermen for their role in the depletion of fish populations,” Hampson added. “Instead, Plaintiffs are bringing an action directly against the State for an alleged breach of its obligation to manage and protect fisheries for the benefit of the general public.”

“Given this particular context, it does not appear that our Courts have had opportunity to directly address whether sovereign immunity bars the type of claim brought by Plaintiffs seeking to compel the State to enforce alleged obligations under the public trust doctrine,” Hampson wrote. “Our review of the development of North Carolina law applicable to both sovereign immunity and the public trust doctrine leads us to conclude sovereign immunity does not bar Plaintiffs’ claim implicating the public trust doctrine in this case.”

Hampson explained why a defense of sovereign immunity should not protect the state in this case. “Application of sovereign immunity in this case, however, would effectively reduce the public trust doctrine to nothing more than a ‘fanciful gesture’ and prevent judicial review … as a plaintiff would never have the ‘opportunity to enter the courthouse doors and present his claims.’”

Even if the plaintiffs could not rely on the public trust doctrine to support their case, they make legitimate claims under two sections of the NC Constitution, Hampson wrote.

Article XIV, Section 5 deals with conservation of natural resources. “Plaintiffs alleged the State, acting through two administrative agencies — the North Carolina Division of Marine Fisheries and the North Carolina Marine Fisheries Commission — failed to protect Plaintiffs’ constitutionally guaranteed right to harvest fish under Art. XIV, § 5,” Hampson explained.

“Plaintiffs alleged the State breached this constitutional duty by ‘mismanaging North Carolina’s coastal fisheries resources.’ Specifically, Plaintiffs alleged the State has mismanaged the fisheries by ‘permitting, sanctioning, and even protecting two methods of harvesting coastal finfish and shrimp in State public waters’ — shrimp trawling and ‘unattended’ gillnetting — ‘that result in enormous resource wastage[;]’ ‘refusing to address and remedy chronic overfishing of several species of fish[;]’ and, ‘tolerating a lack of reporting of any harvest by the majority of commercial fishing license holders for more than a decade.’”

Article I, Section 38 protects the right to hunt, fish, and harvest wildlife. Voters added this section to the state constitution in 2018.

“The State contends the language of this provision places no affirmative constitutional mandate on the State to preserve the right of the people to hunt, fish, and harvest wildlife for the public good. We disagree,” Hampson wrote.

“The first sentence of Section 38 makes clear the right to fish belongs to the people. Moreover, its inclusion in Article I indicates the General Assembly intended for this right to be protected against encroachment by the State,” Hampson wrote.

“[T]he General Assembly, when drafting the proposed amendment, intended to create an affirmative duty on the State to preserve the right of the people to fish and harvest fish,” Hampson reasoned. “However, the right to fish and harvest fish would be rendered meaningless without access to fish. Therefore, the State’s duty necessarily includes some concomitant duty to keep fisheries safe from injury, harm, or destruction for all time.”

“In this case, Plaintiffs’ have alleged facts, which if proven, may tend to show the State did not properly manage the fisheries so as to forever preserve the fish populations for the benefit of the public,” Hampson concluded.

Editor’s note: This article was updated Friday to include comments from Coastal Conservation Association North Carolina.