Unanimous N.C. Appeals Court rules state can be sued for failing to protect fishing rights

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  • The N.C. Court of Appeals will allow a lawsuit to proceed against the state involving protection of North Carolinians' fishing rights.
  • The Coastal Conservation Association and 86 individual plaintiffs contend state commercial fishing regulations failed to protect fisheries, in violation of the state Constitution.

A unanimous panel of the N.C. Court of Appeals has ruled that the state can be sued for failing to protect North Carolinians’ fishing rights. The decision could eventually lead to new restrictions on commercial fishing.

The Appeals Court agreed Tuesday to affirm a trial judge’s ruling in the case, Coastal Conservation Association v. State of N.C. 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 N.C. 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.

The ruling allows the Coastal Conservation Association and 86 individual plaintiffs to take their case to trial.

The state could appeal the ruling. Since the Appeals Court’s decision was unanimous, the N.C. Supreme Court faces no obligation to take the case.